source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    CATHEY v. WEAVER et al.
    (No. 5571.)
    (Court of Civil Appeals of Texas. Austin.
    June 6, 1916.
    On Motion for Rehearing, April 4, 1917.)
    1. Bimitation of Actions <&wkey;4(2) — Statutes —Validity.
    As limitation laws relate to remedies only, the Begislature may increase or diminish the period of limitation, provided such change is made before the right becomes barred under the pre-existing statute.
    [Ed. Note. — For other cases, see Bimitation of Actions, Cent. Dig. § 11.]
    2. Constitutional Baw <&wkey;191 — Retrospective Statutes — Validity.
    Where the full period of limitation has elapsed and a pre-existing right has become barred, the Begislature cannot revive it.
    [Ed. Note. — For other cases, see Constitutional Baw, Cent. Dig. § 534.]
    3. Bimitation op Actions &wkey;>4(2) — Statutes —Validity.
    Acts 33d Beg. c. 123 (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 5693-5695), amending Rev. St. 1911, arts. 5693-5695, and shortening the period of limitation from ten to four years, is valid in so far as it curtails the period of limitation and permits suits for obligations otherwise barred to be brought one year from the enactment of the statute.
    [Ed. Note. — For other cases, see Bimitation of Actions, Cent. Dig. § 11.]
    4. Constitutional Baw &wkey;>191 — Retrospective Statutes — Validity.
    Where plaintiff’s claim was not barred under the statute of limitations prior to 1913, in which year Rev. St. 1911, arts. 5693-5695, were amended by shortening the period of limitation and allowing action to be brought within one year, plaintiff lost his claim by failure to sue in sutil time, although by subsequent act of 1913 (Acts 33d Beg. [1st Called Bess.] c. 27 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695]), such statutes were amended so as to allow four years in which to sue, such amendment being beyond the power of the Begislature as retroactive.
    [Ed. Note. — For other cases, see Constitutional Baw, Cent. Dig. § 534.]
    5. Statutes <&wkey;143 — Validity ■— Baws in Pari Materia.
    Baws enacted at a special session of Begis-lature amending those enacted at the regular session are not to be considered as so material to the enactment at the regular session that such enactment would not have been made without the amendment, and therefore one may stand as valid while the other may be declared invalid.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 211.]
    6. Judgment <&wkey;243 — Parties.
    Where one defendant in his cross-petition failed to bring in as a party an interested person whom plaintiff impleaded, such defendant could not have any relief against such party, the notice conveyed by plaintiff’s petition being insufficient to apprise such person of defendant’s claim against him.
    ■ [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428.]
    Appeal from District Court, Brown County ; John W. Goodwin, Judge.
    Action by F. B. Weaver against G. C. Cathey and others. Defendants other than Cathey were defaulted. Judgment for plain, •tiff, and Cathey appeals.
    Reformed and affirmed.
    Shropshire & House, of Brady, for appellant. Wilkinson & McGaugh, of Brown-wood, for appellees.
   KEY, C. J.

We copy from appellant’s brief the following statement of the nature and result of this suit:

“In 1907, G. C. Cathey owned the land involved in this suit. He sold it to one E. E. McClain, and McClain executed a vendor’s lien note on the land, payable to Cathey, October 1, 1907, bearing 8 per cent, interest from date and providing for 10 per cent, attorney’s fees. This note is still unpaid and owned by Cathey. The land was afterwards bought by G. IT. T. Dodson, who gave a deed of trust thereon to plaintiff F. B. Weaver to secure a note for the sum of $2,160.75, making Wm. Koonce trustee. This was done February 10, 1911. Dodson then sold the land to D. R. Bailey, who assumed the payment of the $2,160.75 note, payable to Weaver. This last note being unpaid, F. B. Weaver brought this suit against Dodson, Koonce, Bailey, and Cathey to foreclose on the land. In this suit Weaver first charged that the note given to Cathey, which was recited in the deed from Cathey to McClain, and in plaintiff’s chain of title, was fictitious, fraudulent, and void, and prayed that the same be held for naught, and that the title be cleared, and that the lien given by Dodson and assumed by Bailey be foreclosed. All defendants except G. C. Cathey made default. Cathey answered, alleging that his note was genuine, and not fictitious or void; that it was due and unpaid; that he held the superior title to the land as well as the vendor’s lien to secure the payment of his note; and that McClain was insolvent. He prayed that the court order his note first paid out of the proceeds of the land, and that his equities.be fully protected by the decree of the court. In reply to this the plaintiff pleaded the statute of limitations against Cathey’s claims. The lower court sustained the plaintiff’s pleas of limitations against Cathey’s said claims, and rendered judgment, foreclosing plaintiff’s lien, and ordering the land sold and the proceeds of the sale applied as follows: First, to the payment of plaintiff; second, any balance to be paid to the defendant Bailey. The defendant Cathey excepted to this judgment, contending that, as the codefendants did not interpose the plea of limitations, any balance at least after paying plaintiff should be paid over to Cathey. Attorney for plaintiff contended and the lower court held that, as the codefendants had not been specially notified or cited to answer defendant Cathey’s cross-action, judgment should go altogether against Cathey, and it was so ordered; hence this appeal.
“First. G. C. Cathey contends that the Legislature of 1913, when it curtailed and restricted his right of ejectment, and substituted in lieu thereof the right to foreclose his vendor’s lien, which last right had been formerly barred, that it acted within its power, because it simply substituted one legal remedy for another.
“Second. That if the portions of said act of 1913 which undertook to substitute the right to foreclose the vendor’s lien in lieu of the right of ejectment, which last right then subsisted in behalf of the vendor Cathey, be void, then the court should disregard the whole of the acts of 1913, relating to this subject, and protect Ca-they’s rights as the holder of the vendor’s superior title, because it is apparent from the legislation referred to and the history thereof that the Legislature of 1913 would not have further curtailed this and other vendors’ rights .of ejectment who were then barred’ of their right to'foreclose, without extending their rights to foreclose their liens.
“Third. That the lower court was wrong in ordering any excess, after satisfying the claim of plaintiff, to be paid over to codefendants instead of Cathey; because the citation served upon each codefendant notified him that the validity of Cathey’s lien would be litigated; and that each codefendant was thereby put upon notice that Cathey was maintaining and would contend that his lien was valid, and as a natural sequel he would ask that his rights as vendor be protected.”

Opinion.

The main question in the case is presented under appellant’s first assignment of error, and involves the contention that the court erred in holding that appellee Weaver’s lien was superior to appellant’s prior lien. This contention involves the validity of and construction to be placed upon certain legislation prescribing periods of limitation as against suits to enforce the rights of real estate mortgagees and the vendors of real estate secured by liens upon the property sold. In 1905 (Acts 29th Leg. c. 138) the Legislature passed a law declaring that:

“No power of sale conferred by deed of trust or mortgage on real estate executed after [July 14, 1905] shall be enforced after the expiration of ten years from the maturing of the indebtedness secured thereby. * * * When, a vendor’s lien is retained to secure the purchase money in any sale of real estate after [July 14, 1905], the right to recover such real estate by virtue of the superior title retained shall be barred after the expiration of ten years from the maturity of the debt; and if suit is not brought for recovery of such real estate within such term, the purchase money therefor shall be conclusively presumed to have been paid.”

It was also provided in the same act that the parties might, in a certain manner, extend the time of payment, and that limitation would not begin to run until after the expiration of the time agreed upon. The provisions of that statute are incorporated - in the Revised Statutes of 1911 in articles 5693. 5694, and 5695. At the regular session of the Thirty-Third Legislature (Acts 33d Leg. c-123 [Vernon’s 'Sayles’ Ann. Civ. St. 1914, arts.' 5693-5695]) those articles of the Revised Statutes were amended so as to read as follows:

“Art. 5693. No power of sale conferred by any deed of trust or any mortgage on real estate heretofore executed, or that may hereafter be executed, shall be enforced after the expiration of four years from the maturity of the indebtedness secured thereby, and any sale under such power after the expiration of such time shall be void, and such sale may be enjoined and the lien created in such mortgages or deeds of trust shall cease to exist four years after the maturity of the debt secured thereby. Provided, if several obligations are secured by said mortgage or deed of trust, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes or obligations not then barred by the four years statute of limitations.
“Art. 5694. The right to recover any real estate by virtue of a superior title retained in any deed of conveyance heretofore or hereafter executed, or in any vendor’s lien note or notes heretofore or hereafter executed, given for the purchase money of such real. estate, shall be Barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved i'n any such notes and deeds conveying the land shall cease to exist four years after the note or notes have matured, provided the lien reserved in such note or notes may; be extended as provided in section 5695 of this chapter and provided, if several obligations are secured by said deed of conveyance, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as-to all notes not then barred by the four years statute of limitations.
“Art. 5695. When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the parties to the contract of extension, and filed for record in the county clerk’s office in the county in which the land is situated, the lien shall continue and be in force until four years after maturity of the notes as provided in such extension the same as in the original contract, and the lien shall so continue for any succeeding or additional extensions so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage, or the recorded renewal and extension of the same, shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. Provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed prior to July 14th, 1905, and which are more than four years past due at the time this act takes effect, as shown by the original mortgage, deed of trust or conveyance, shall have twelve months after this act takes effect within which they may bring suit to enforce the liens securing them, if same are valid obligations when this act takes effect, and if suit is not brought within such time the right to bring suit to enforce such liens shall be forever barred; and provided, that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor lien notes reserved in deeds of conveyance, which were executed subsequent to July 14th, 1905, shall have four years after this act takes effect within which they may bring suit to enforce the liens securing them, if same are valid obligations and not already barred by the four years statute of limitations when this act takes effect, and if. suit is not brought within such four years, or four years after they mature, they shall be forever barred from the right to bring suit to enforce the lien securing the same; and providing those owning the superior title to land retained in any deed of conveyance, or his transferee and those subsequently acquiring such superior title by transfer shall have twelve months after this act takes effect within which to bring suit for the land, if their claim to the land is not otherwise invalid, and unless such suit is brought within twelve months after this act takes effect, they shall be forever barred from bringing suit to recover the same.”
“Sec. 4. The fact of the near approach of the end of this session, and the fact that there are a great many land titles in this state that are clouded by reason of vendor’s lien and deed of trust appearing on the records apparently unpaid, creates an emergency and an imperative public necessity requiring the suspension of the constitutional rule requiring bills to be read on three several days in each house, and this act shall take effect and be in force from and after its passage.”

That act was approved by the Governor on April 3, 1913, 2 days after the adjournment of that session of the Legislature, but it did not take effect until 90 days after adjournment. At the first called session of the Thirty-Third Legislature (Acts 33d Leg. [1st Called Sess.j c. 27 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695]) article 5695, as amended by the act heretofore referred to, was again amended so as to read as follows:

“Art. 5695. When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds of conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record in the county clerk’s office in the county in which the land is situated, the lien shall continue and be in force until four years after maturity of the notes_ as provided in such extension, the same as in the original contract and the lien shall so continue for any succeeding or additional extension so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage or the recorded renewal and extension of the same shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. Provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed prior to July 14, 1905, and which are more than four years past due at the time this act takes effect as shown by the original mortgage, deed of trust or conveyance, or last record extension shall have twelve months after this act takes effect within which they may obtain such record extension as hereinbefore provided for,. or bring suit to enforce the liens securing them if same are valid obligations when this act takes effect and if such debt is not so extended of record, or suit is not brought within such time, the right to extend such debt of record, or bring suit to enforce such liens shall be forever barred; and provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed subsequent to July 14, 1905, shall have four years after this act takes effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the liens securing them if same are valid obligations and not already barred by the four years’ statute of limitations when this act takes effect, and if such debt is not extended of record, or suit is not brought within such four years or four years after they mature, they shall be forever barred from the right to extend such debt of record, or bring suit to enforce the lien securing the same, and further provided if any such obligations executed subsequent to July 14, 1905, were barred by the four years statute of limitation on the 30th of June, 1913, the owners thereof shall have four years within which to bring suit to enforce the lien securing the same; and providing those owning the superior title to land retained in any deed of conveyance or his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land if their claim to the land is not otherwise invalid and unless such suit is brought within twelve months after this act takes ef-feet, they shall be forever barred from bringing suit to recover the same.”

That act was delivered to the Governor August 19,1913, and toot effect 90 days thereafter, that session of the Legislature having adjourned on that day.

As limitation laws prescribing the time within which a particular right may be enforced relate to remedies only, it is well settled by the authorities that the Legislature has the power to increase or diminish the period of time necessary to constitute limitation, provided such change is made before the right has become barred under the pre-existing statute of limitation. And it is equally well settled in this state that where the full period of limitation has elapsed, and. a preexisting right has become barred, the Legislature has no power to revive such pre-existing right; and the application of these two rules are decisive of this case. Applying these rules to this ease, we hold that the Legislature acted within the scope of its authority when it passed the act of April 3, 1913, which took effect in July following, in so far as that act curtailed the period of limitation as it formerly existed, but left to appellant Cathey an adequate remedy for the protection of his rights. At the time that law took effect his debt was barred by the four-year statute of limitation. However, that act left to him the right to bring suit for the land at any time within 12 months after it took effect. As before stated, the act took effect in July, 1913, but appellant Cathey instituted no suit to recover the land, or for the protection of his rights, until he filed his answer in this case on December 14, 1914; and for this reason we feel compelled to hold that both his right to enforce his lien and to recover the land were barred by limitation and not enforceable, unless he is protected by the subsequent act of August, 1913. It cannot be denied that the latter act has undertaken to protect such claims as are asserted by appellant, because it is therein provided that if obligations executed subsequent to July 14, 1905, were barred by the four-year statute of limitation on the 30th of June, 1913, the owners thereof shall have four years within which to bring suit to enforce their lien; and those owning the superior title to land retained in any deed of conveyance should have 12 months after the act takes effect within which to bring suit for the land.

Counsel for appellee contend, and the court below seems to have sustained the contention, that, inasmuch as appellant’s rights to enforce his lien or recover the land had become barred before that act was passed, the provisions thereof just referred to, are unconstitutional and void. Counsel for appellant challenge the correctness of that holding, but we feel compelled to overrule their contention, and to approve the ruling referred to. As before stated, the weight of authority, as well as reason, support the doctrine that when a right which would constitute a cause of action has ceased to exist, though such result may have been brought' about by operation of a statute of limitation, the Legislature has no power to vitalize and revive such preexisting right. In this state such statutory enactments violate that provision of our state Constitution which prohibits the enactment of retroactive laws. Taylor v. Duncan, Dallam, Dig. 514; Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249; Nat. Bank v. Nat. Bank, 85 Tex. 560, 22 S. W. 579. The Mellinger Case is directly in point, and it was there held that a statute similar to the one under consideration, denying the right to plead limitation after the claim had become barred under an existing statute of limitation, was in contravention of that section of our Constitution which prohibits retroactive laws. After discussing certain provisions of the federal Constitution, and' referring to the construction placed thereon by the federal Supreme Court, our Supreme Court, in construing that section of the Constitution which prohibits the enactment of retroactive laws, said:

“The making of it evidences an intention to place a further restriction on the power of the Legislature, and it must be held to protect every right, even though not strictly a right to property, which may accrue under existing laws prior to the passage of any act which, if permitted a retroactive effect, would take away the right. A right" has been well defined to be a well-founded claim, and a well-founded claim means nothing more nor less than a claim recognized or secured by law. Rights which pertain to persons, other than such as are termed ‘natural rights,’ are essentially the creatures of municipal law, written or unwritten, and it must necessarily be held that a right, in a legal sense, exists, when in consequence of given facts the law declares that one person is entitled to enforce against another a claim or to resist the enforcement of a claim urged by another. Pacts may exist out of which, in the course of time or under given circumstances, a right would become fixed or vested by operation of existing law, but until the state of facts which the law declares shall give a right shall come into existence, there cannot be in law a right, and for this reason it has been constantly held that until the right becomes fixed or vested it is lawful for the lawmaking power to declare that the given state of facts shall not fix it, and such' laws have been constantly held not to be ‘retroactive’ in the sense in which that term is used. This has been illustrated by so many decisions, made upon so great a variety of facts, that it has become the settled law of the land. When, however, such a state of facts exists as the law declares shall entitle a plaintiff to relief in a court of justice on a claim which he makes against another, or as it declares shall operate in favor of a defendant as a defense against a claim made against him, then it must be said that a, right exists, has become fixed or vested, and is beyond the reach of retroactive legislation, if there be a constitutional prohibition of such laws. This, so far as we have been able to ascertain, has been the ruling in every state in this Union which has a constitutional provision in terms forbidding retroactive laws in which any ruling upon the question has been made.”

Appellant’s counsel make the contention that if the provision of the statute referred to under which they claim protection is unconstitutional, then both of the laws enacted by the Thirty-Third Legislature should be declared void, in which event the parties would be remitted to the pre-existing laws, and appellant’s claim of title to the land would not be harred. If the two acts referred to had been passed at the same time, or even at the same session, there might be force in the contention urged. But such is not the case; the act approved April 3, 1913, was passed at the regular session of the Legislature, which adjourned on April 1, 1913, while the other act was passed at the called session beginning July 21, 1913, at which time the former act had already gone into effect. This demonstrates the fact that the rule which requires laws enacted at the same session of the Legislature, and relating to the same subject-matter, to be considered as one act has no application. Under the rule referred to, if these two acts had been passed at the same session of the Legislature, there might be merit in the contention that if any material part of either act be held unconstitutional, both acts should be declared void. That rule is based' upon the doctrine that the courts have no right to assume that when the Legislature has enacted a particular law, if certain material provisions thereof had been stricken out, it would have enacted the remainder. But that rule can have no application to the acts of 'the Legislature here involved, because the act which contains the unconstitutional provisions was enacted at a subsequent session, and after the former act, under which appellant’s rights became barred, had gone into effect, which demonstrates to an absolute certainty that in enacting the first statute the Legislature could not have been influenced by a statute enacted at a subsequent session. It may indicate that after the former law was enacted the Legislature realized the fact that it had acted unwisely, and sought to avoid the effect thereof by incorporating in a subsequent law the unconstitutional provisions referred to. But it does not indicate that at the time the first law was passed it would not have been enacted had not the Legislature understood that the second law would be enacted at the same session.

There is one other question of minor' importance which is embraced in appellant’s contention that the trial court committed error in awarding to appellee Bailey any balance of the proceeds of the sale of the land, after payment of appellee Weaver’s debt, costs, etc. Appellant’s contention is that, ás Bailey filed no answer, and did not plead limitation as against appellant’s claim, the judgment should have been in favor of appellant for any balance that might exist after satisfying Weaver’s claim. If appellant had impleaded appellee Bailey, and asserted his right as against him to the surplus, and the latter had filed no answer, appellant would be in a much better position. However, he makes the contention that the petition of plaintiff Weaver which appellee Bailey was cited to answer-disclosed the fact that appellant was asserting a prior lien upon the land, and that that constituted sufficient notice to Bailey that appellant would assert whatever rights he might have in that respect. We doubt the correctness of that contention, and are not willing to render judgment in favor of appellant as against appellee Bailey. However, we have concluded to affirm the judgment as between appellant and appellee Weaver; but to reform it so as to require the officer who sells the property under an order of. sale to pay over to the clerk of the court below whatever surplus, if any, may remain-after discharging the debt of the plaintiff Weaver and paying all costs, and to require the clerk of that court to hold such surplus for a period of 10 days in order to give appellant Oathey time within which to file a plea impleading appellee Bailey, and asserting appellant’s right to such fund; and if such pleading is filed within such time, then the clerk is ordered to hold such fund until the court of which he is clerk has disposed of appellant’s claim asserted against Bailey, and directed the clerk as to which party to pay the same. But if such pleading be not filed within 10 days, then the clerk is ordered to pay such fund to appellee Bailey. The costs of this appeal are taxed against appellant and the sureties on his appeal bond.

Reformed and affirmed.

On Motion for Rehearing.

This motion has been given careful consideration, but our conclusion is that this court has properly disposed of the case, and that the motion should be overruled.

We concede the fact, as stated in the motion, and also stated in our former opinion, that at the time the Legislature passed the act of August, 1913, by which it attempted to restore to appellant, and all others similarly situated, the right to maintain an action in court which had already been barred by the statute of limitations, appellant possessed another remedy, and could have maintained a suit for the recovery of the land, unless in answer to such suit an offer had been made to pay the debt. But we do not concede that because of the existence of such other remedy the Legislature had the power to revive and restore an additional remedy which had been barred by limitation.

We fail to see the force of the argument, which concedes that if at the time referred to appellant had possessed no other remedy, then the Legislature would have had no power to restore to him a right which had become barred by limitation, but insists that the Legislature had such power, because at the time referred to appellant had another and different remedy which had not become barred. By what rule of .logic or reason it can be maintained, that the Legislature may exercise a power wbieli is prohibited by the Constitution, merely because the party in whose behalf it is exercised has another remedy, is more than we are able to understand.

The cases cited by counsel for appellant are not analogous, and do not sustain appellant’s contention. The reference to Cyc. contains one sentence which seems broad enough to support the contention urged. The entire' section reads as follows:

“Upon the question as to how far vested rights may be gained in the running of the statute for the time requisite to bar actions, and whether a bar thus once gained may be subsequently affected by the repeal of the statute or a renewal of time for bringing the action once barred, the authorities are in conflict. The weight of authority in the several states, it is believed, supports the view that the bar gained by the running of the statute is a vested right which cannot subsequently be taken away by the Legislature either by creating a new right, repealing the former statute, or withdrawing a specified past period from its operation. There are, however, contrary authorities in several jurisdictions, and the rule that the bar to a claim for debt cannot be a vested right is established in the United States Supreme Court by a series of decisions. These authorities would _ usually distinguish cases where the bar gained is merely against the remedy of the creditors, as in case of a debt from cases where the bar has vested an absolute title to real or personal property. There can be no right gained in the running of the statute till the prescribed period of limitations is completed, or according to some authorities till not only the remedy is barred, but the limitation has entirely extinguished the former right and vested a title. But where only one particular form of remedy is 'barred, while other equivalent forms remain, there can be no objection to a removal of a bam on the first. A distinction is sometimes attempted as to whether a statute as it originally stood conferred a right not existing at common law or limited one which did so exist before, the doctrine being that in the latter case a bar already complete under the statute may be removed by later act.” 8 Cyc. pp. 922, 923.

The sentence italicized is that relied on by counsel for appellant. But one case is cited by the author in support of that text, which is Power v. Telford, 60 Miss. 195. We have examined that case, and find that the Supreme Court of Mississippi held that while a party in possession of property could acquire a vested right in it by flow of time, he could never acquire a vested right in or against any particular remedy, and that, such being the case, it was competent for the Legislature to give to the owner of the property additional remedies, or to restore to him an old one which had been lost by a lapse of time.

If that court was correct in holding that there could be no vested right in or against a particular remedy, then it correctly reached the conclusion that the Legislature had the power to restore a remedy which was barred by limitation, even if the Constitution of that state is similar to ours, which is not made to appear by the report of the case. But, as shown by our former opinion, the doctrine in this state as announcéd by our Supreme Court is just the reverse .of that announced by the Supreme Court of Mississippi, and is to the effect that a party may acquire a vested right to plead a statute of limitation, and that after the lapse of the time necessary to perfect such a right the Legislature is prohibited by our Constitution from passing any law that would impair that right. According to Cyc. the weight of authority supports that view, although there are decisions in other jurisdictions, including the Supreme Court of the United States, which announce a contrary view.

Our conclusion is that the motion for rehearing should be overruled; and it is so ordered.

Motion overruled.
      <&wkey;For other oases see Same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGOINS, J.

text:
    DAWSON v. GEORGE.
    (No. 684.)
    (Court of Civil Appeals of Texas. El Paso.
    March 15, 1917.
    Rehearing Denied April 5, 1917.)
    1. Landlord and Tenant <&wkey;22(4) — Parties <5&wkey;35 — Joinder of Plaintiffs — Joint Lessee. _
    _ In suit for breach of a landlord’s written contract to rent land and furnish animals, tools, and seed for its cultivation, where plaintiff alleged that the land was leased to him and another jointly, such other should have been joined as a party plaintiff, and, in the event of his refusal, should have been made a party defendant.
    [Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. § 58; Parties, Gent. Dig. §§ 54, 55.]

    2. Appeal and Error <&wkey; 187(3) —Nonjoin-der of Parties.
    Want of necessary parties may be raised for the first time on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 1887; Parties, Cent. Dig. § 169.]
    3. Appeal and Error <&wkey;907(3) — Presumptions— Bindings — Bill of Exception or Statement of Facts.
    In the absence of a bill of exception or statement of facts showing what evidence was presented to the trial court upon hearing of defendant’s motion for new trial setting up that citation was served in less than ten days before the return day, exclusive of the date of service and return, asking that judgment against defendant by default be set aside for such reason, it must be assumed that the trial court found and was warranted in finding that service was perfect as shown byvthe sheriff’s return.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3673.]
    4. Appeal and Error <&wkey;193(9) — Sufficiency of Petition Against General Demurrer-Raising Question for First Time on Appeal.
    The sufficiency of the petition as against general demurrer can be raised for the first time on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1232-1236; Pleading, Cent. Dig. § 1355.]
    Error from Presidio County Court; H. H. Kilpatrick, Judge.
    Suit by Daniel George against G. S. Dawson. To review a judgment for plaintiff, defendant brings error.
    Reversed and remanded.
    W. O. Jourdan, of Marfa, and Jos. M. Neal-on, of El Paso, for plaintiff in. error. C. E. Mead, of Marfa, for defendant in error.
   HIGOINS, J.

George sued Dawson, alleging that on December 20, 1916, defendant entered into a written contract with plaintiff and John Layba, by which defendant rented to plaintiff and Layba about 60 acres of land for a period of one year; that defendant agreed to furnish the land, together with dwellings and necessary animals, tools, seed, etc., and plaintiff was to cultivate the land ' and to plant crops thereon, and in consideration therefor was to receive one-half of the crops grown on the land; that he and Layba prepared the land for cultivation and planted wheat and peas thereon; that on March 1, 1916, defendant notified plaintiff that he declined to further carry out the contract and ordered plaintiff to quit work on the land and to remain off the premises; on account of said notice and demand on the part of defendant, plaintiff was afraid to continue to work on said lands, and was afraid to try to make a crop thereon, and he was forced to and did abandon the work which he had begun, and the crops which he started to plant and cultivate on said lands. The plaintiff is informed that the defendant, by some arrangement unknown to the plaintiff, has permitted the said John Layba to continue to cultivate said lands, and is carrying out the contract or some kind of contract with the said John Layba, but the plaintiff has not been consulted in reference thereto, either by the defendant or the said John Layba, and the plaintiff has nothing to do with said arrangement. It was then averred that plaintiff had incurred expense of $160, and that his profits from the crops which would have been raised would have been $300, that he was strictly complying with his part of the contract, and that plaintiff breached the contract in the manner aforesaid without cause. Judgment was prayed for his damages and for general relief. Oitation was issued and served upon the defendant and judgment by default was rendered against him. The return upon the citation shows that the same was served in time to require an answer at | the term when the judgment was rendered. Motion for new trial was filed, setting up that in fact the citation was served in less than ten days before the return day, exclusive of the date of service and return, for which reason it was asked that the judgment be set aside. This motion was overruled, and from the judgment entered this writ of error is prosecuted.

It is assigned as error that there is a defect of a necessary party, viz. John Layba. This is well taken. It is alleged that the land was leased to George and Layba jointly. He should have been joined as a party plaintiff, and in the event of his refusal to so join he should have been made a party defendant. The want of necessary parties may be raised for the first time upon appeal, and it was not necessary to plead the nonjoinder. The case of Waggoner v. Snody, 98 Tex. 612, 85 S. W. 1134, was based upon tort and has no application to an action for breach of a joint contract. All of the contentions here made by defendant in error were considered and adversely disposed of in the case of Barlow v. Linss, 180 S. W. 652, in which a writ of error was refused. Reference is made to this case for statement of our views rela-' tive to the necessity of joining Layba as a party to the suit.

The record is not in such condition as will permit inquiry into the correctness of the court’s action in refusing to set aside the default judgment upon the theory that service was not perfect at that term. There is no bill of exception or statement of facts showing what evidence was presented to the court upon the hearing of the issue. In this condition of the record, it must be assumed that the court found, and was warranted in finding, that service was perfect as shown by the sheriff’s return.

There may be some doubt as to the sufficiency of the petition as against a general demurrer which is a question which can also be raised for the first time upon appeal. Possibly, however, the objections urged would not subject it to a general demurrer and were such as must have been raised by special exception. There will doubtless be an amendment to meet the objections, and we therefore refrain from passing upon the sufficiency of the petition in its present form.

Reversed and remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    TAYLOR v. SANFORD.
    (No. 2483.)
    (Supreme Court of Texas.
    April 4, 1917.)
    1. Deeds &wkey;>56(2) — “Delivery”—Requisites —Intention.
    Where a deed is disposed of by the grantor so as to dearly evince an intention that it shall have effect as a conveyance, it is a sufficient delivery, since no form of words or action is prescribed to constitute delivery, and the question in all cases is the question of the grantor’s intention.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 118.
    For other definitions, see Words and Phrases, First and Second Series, Delivery.]
    2. Deeds <&wkey;59(2) — Deliveby — Mailing — Death of Geantob.
    Where the grantor executed a deed and filed it for record, and the following day mailed it to the grantee, with a letter clearly showing that he intended it as a gift to her, in contemplation of his death, there was sufficient delivery to make the deed effective.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 137.]
    3. Deeds i&wkey;56(3) — Deliveby—Powee to Regain Possession.
    The fact that the grantor had power to recall a deed from the mail in which he had placed it, addressed to the grantee, and thereby prevent its physical delivery to her, does not prevent mailing the deed with intention to give it immediate effect from being a delivery.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 119.]
    4. Deeds <&wkey;56(7) — Deliveby — Regaining Possession.
    Where a deed had become effective by delivery, regaining possession thereof by the grantor, before it reached the possession of the grantee, would not defeat it.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 125.]
    5. Deeds &wkey;>64 — Acceptance—Necessity.
    A deed of gift to property which imposed on the grantee the assumption of the payment of notes against the property, and her conveyance of other property to the grantor, requires an acceptance by the grantee.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 142, 143.]
    6. Deeds <&wkey;65 — Acceptance — Death of Geantob.
    Where the grantee of a deed of gift accepted the deed as soon as she learned of it, such acceptance was sufficient, though the grantor had died before the acceptance.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 144.]
    7. Deeds &wkey;?194(4) — Acceptance—Peesumption — Gift.
    A delivered instrument plainly amounting to a deed of gift should operate by presumed assent until a dissent or disclaimer appears.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 579, 634.]
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit by J. M. Sanford, as administrator of the estate of R. H. Sanford, deceased, against Annie Lee Taylor, to cancel a deed. Judgment for the plaintiff was affirmed by the Court of Civil Appeals (150 S. W. 262), and defendant brings error.
    Reversed, and judgment entered for defendant.
    A. S. Rollins, of Amarillo, and J. C. Hunt, of Canyon, for plaintiff in error. Madden, Trulove & Kimbrough, of Amarillo, for defendant in error. .
   PHILLIPS, C. J.

The suit was by J. M. Sanford, administrator of the estate of R. H. Sanford, deceased, to cancel a deed of R. H. Sanford to Annie Lee Taylor conveying certain property in Canyon, Texas. The deed was executed and acknowledged by R. H. Sanford on June 14, 1911. It recited that Miss Taylor was to assume the payment of three vendor’s lien notes against the property, aggregating $750.00, principal, and that a part of its consideration was the conveyance by Miss Taylor to Sanford of a lot in the town of Hamlin, in Jones County, and a 40 acre tract of land in Presidio County. Sanford was the sheriff and tax collector of Randall County. Miss Taylor was his office clerk and stenographer. There was evidence tending to show that Sanford and she had been engaged to be married. She had loaned Sanford some of her private means, which had not been repaid. Sanford was due the State of Texas and Randall County approximately $1000.00 for taxes which he had collected and for which he had not accounted, and was in a state of some financial embarrassment. He committed suicide on June 15, 1911,' the day following his execution of the deed to Miss Taylor.

After executing the deed on June 14, Sanford immediately filed it for record in the office of the County Clerk, and, on the same day, following its record, mailed it to Miss Taylor who at that time was visiting her home in another county of the State. He likewise immediately mailed her in the same or a separate enclosure two deeds for her execution conveying to him the lot in Hamlin and the tract of land in Presidio County, mentioned in his deed to her. Accompanying the deed to Miss Taylor was the following letter from Sanford addressed to her.

“Canyon, Texas, June 14, ’ll.
“Dear Lee: I am sending you some deeds to sign, herewith, also enclosed a lot of other papers which are yours. Yours to keep. I want you to have them as I am deeding to you my house and the 4 lots where Cannon lives. The deed I am putting on record here and as soon as it is recorded it will be sent to you. I want you to have the house as it will make you a good living and also furnish you a home. Keep it darling as a gift from me. Under no circumstances don’t give it up unless you sell it in order to support yourself. You will see from the deed that there are three notes standing against it that will fall due, one this fall on Sept. 10th, for $250.00. Also the interest on the other two will become due at that time, the 2nd note will be due one year from that date and one year later the last one will be due. Of course you can pay them sooner if you choose. Please execute the two deeds to the Hamlin and the Presid-io property as drawn, sign them before a notary public and send them to the Co. Clerk at Anson and Marfa to have recorded. Send a dollar ■with each and have them returned to me here. This is to show a consideration in your deed and is made a part of the consideration. I know you will not feel like you should accept this from me, but you must as it is my wish and I can’t think of doing otherwise. It costs me more to write this than you will ever know, but the only satisfaction that I am to get is to know that I am leaving you provided for as my foster and adopted sister. * * * I will send you a draft for $400.00. Will send it to the bank there or may send it direct. This will leave you in good shape as the house is well worth $4,000.-00 and should rent for from $30.00 to $40.00 per month. I am sure you can get it insured for $3000.00 next time after this policy runs out. I will just leave everything I have in the house and that you and Mack can dispose of. When you return to see about it, bring this letter and show it to him, and he will understand all. I have foreseen this for some time, but thought I could get it all shaped up. I see that I cant and it is no fault of mine. If I could have gotten it all adjusted, we would have gotten married and lived as happy as is the lot of any couple. I could not marry you tho unless I could provide for you as I wanted to and now this is the only course for me to pursue. You know how some of the people here feel toward me since the city election, and but for that I could go through. They will swear anything and can and will ruin me if I try to stay. Now Darling I know you will forgive me for all the little worries I have caused you in the last few months when it seemed to you that I had changed toward you.. It was not that but I just could not tell you. It hurt me more than it did you. No matter what some may think, I know you to be a pure Christian girl sure as there are oni.' very few. Remember me kindly always. Goodbye Darling, Lovingly, Dick.
“The $400.00 is bal. payment on the $500.00 I owe you. Dick.”

Miss Taylor received the deed and other documents at Canyon on June 19th, where she immediately went on learning of Sanford’s death, his letter or letters to her having been -forwarded to her at that place. Her testimony upon the trial was that it was her intention, as soon as she learned of the deed, to accept the property under it and on the terms therein stipulated. She paid off one of the vendor’s lien notes against the property, and on July 21, 1911, executed and acknowledged the two deeds which Sanford had sent her for execution in mailing his deed to her. Neither of her deeds was delivered nor tendered for delivery to anyone representing Sanford’s estate prior to the time of the trial of the present suit, but during its trial both were tendered by her in open court, the trial occurring in November, 1911.

The only question in. the ease is whether there was a delivery of the deed from Sanford to Miss Taylor.

The law prescribes no form of words or action to constitute the delivery of a deed. It will not divest a grantor of his title by declaring his deed effective when his purpose was to withhold it from the grantee. Neither will it deprive the grantee of his rights where it was the grantor’s intention to invest him with the title, though there be no manual delivery of the instrument. ■ The question in all such cases is that of the grantor’s intention. If the instrument be so disposed of by him, whatever his action, as to clearly evince an intention on his part that it shall have effect as a conveyance, it is a sufficient delivery. 2 Jones, Daw of Real Property, § 1220; 1 Devlin on Deeds, § 269.

That such was Sanford’s intention with respect to the deed in controversy is, we think, unmistakable. It is clear that the deed was executed, caused to be recorded, and was mailed by him in contemplation of his death, and so as to at once invest Miss Taylor with the title. It is equally certain that he intended the property as a gift to her. Nothing could be more plainly revealed. The property was Sanford’s, and, no rights of creditors being involved, he had the power to give it away if he chose. If such was his intention, the law should effectuate it, rather than indulge in nice distinctions and thereby thwart what was plainly his purpose. That it was within Sanford’s power, at any time before his death, to recall the deed from the mail where he had placed it for transmission to the grantee, and thereby prevent its physical delivery to her, is immaterial. He did not recall it. Nor did he make any attempt to do so. On the contrary, everything about the transaction shows that at the time his letter was written, — the day before his death, he regarded it as an executed gift. With this true and clearly evidencing an intention that the deed should have immediate effect, it is of no consequence that it did not reach the hands of the grantee before his death, or that it was within his power to regain its physical possession. If what ’the law regards as a delivery had been accomplished, his regaining physical custody of the instrument would not have defeated it. Brown v. Brown, 61 Tex. 56; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533.

True, the gift imposed upon Miss Taylor the assumption of the payment of the three notes against the property and her conveyance to Sanford of the lot ^in Hamlin and the 40 acre tract in Presidio County, and required her acceptance of it, since no person can be made a grantee of property against his will. But she accepted it. She could not be expected to either accept or reject the gift until she knew of it; and since she did not know of it until after Sanford’s death, her acceptance of it then sufficed. Burkey v. Burkey, 175 S. W. 623. As a rule of reason and common sense, a delivered instrument plainly amounting to a deed of gift should operate by a presumed assent until a dissent or disclaimer appears. Dikes v. Miller, 24 Tex. 417.

The judgments of the District Court and Court of Civil Appeals are reversed, and judgment is here rendered for the plaintiff in error.
      (§=nFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    TAYLOR et al. v. DUNN et al. NUECES VALLEY IRR. CO. v. SAME.
    (No. 2464.)
    (Supreme Court of Texas.
    April 4, 1917.)
    1. Advekse Possession <&wkey;44^-CoNTiNtriTY oe Possession— Sufficiency op Evidence.
    No title was acquired by adverse possession under the five-year statute, where there was an interval of nearly three months, during which the land was unoccupied and there was no proof that such period was a reasonable interval.
    [Ed. Note. — Poe other cases, see Adverse Possession, Cent. Dig. §§ 226-231.]
    2. Adverse Possession <&wkey;57 — Burden' op Proof.
    Parties claiming title by adverse possession have the burden of showing ■ either continuous occupancy of the land, or that any break in their possession was only for a reasonable time.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 277, 278, 655, 667, 687.]
    3. Adverse Possession &wkey;>44^-CoNTiNuiTY— Tenant’s Illness.
    A tenant’s illness and consequent failure to occupy premises does not excuse a break in his landlord’s continuous adverse possession of the property.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 226-231.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Trespass to try title by Ella G. Taylor and others against Frank Dunn and others, and by the Nueces Valley Irrigation Company against Frank Dunn and others, in which J. V. Tackaberry intervened. The Court of Civil Appeals first affirmed (143 S. W. 311), but upon rehearing (147 S. W. 287) reversed judgments for plaintiffs, and entered judgments for defendants, and from this latter action, the defendants bring error.
    Affirmed.
    For decision on former appeal, see 102 Tex. 80, 113 S. W. 265.
    See, also, 42 Tex. Civ. App. 241, 94 S. W. 347; 107 S. W. 957.
    C. L. Bass and A. C. Bullitt, both of San Antonio, and F. Vandervoort, of Carrizo Springs, for plaintiffs in error. N. A. Rector, of Austin, for defendants in error.
   YANTIS, J.

These two cases involve the same facts and the same questions of law. They represent two petitions to this court for writs of error, growing out of a suit in trespass to try title, which was tried in the district court of Dimmit county. All the plaintiffs in error in each case were plaintiffs in the district court, and the defendant in error, Frank Dunn, was the defendant in said courts and J. V. Tackaberry was inter-vener. The question upon which each ease turns is whether the plaintiffs in error had title under the five-year statutes of limitation to 640 acres of land situated in Dimmit county. The trial was by jury. The verdict rendered by the jury was in favor of the plaintiffs in error, and was in the following language:

“We, the jury, find from the evidence in this case that the parties Ella G. Taylor and husband, J. S. Taylor, and all parties holding land under said Ella G. Taylor and husband, J. S. Taylor, as far as their interests may concern, as follows: Ella G. Taylor and her husband, J. S. Taylor, 203% acres; M. A. Haas 26% acres; C. L. Bass 10 acres; Max Deutz 1Í0 acres; Nueces Valley Irrigation Company 250 acres; J. L. Zachary 20 acres; H. C. Lane, trustee, 20 acres — of said land have had peaceable and adverse possession by limitation for a period of five years, commencing January 1, 1893, and ending July 24, 1901, and we find our verdict in their favor accordingly.”

Appeal was taken to the Court of Civil Appeals for the Fourth District, where the judgment of the district court was affirmed, but upon motion for rehearing the case was reversed and remanded, and later, upon a subsequent motion for rehearing, the judgment of the district court was reversed and rendered in favor of Frank Dunn et al., defendants in error, who were appellants in the Court of Civil Appeals. A petition for writ of error was filed in this court by the Nueces Valley Irrigation Company, and also a petition for writ of error was filed in this court by Ella G. Taylor et al. Both were granted. They will be treated in this opinion as one. The case has been before the Court of Civil Appeals twice prior to this appeal. 42 Tex. Civ. App. 241, 94 S. W. 347; 107 S. W. 957. This case has also been once before presented to this court, and very carefully considered in an opinion by Mr. Justice Williams, 102 Tex. 80, 113 S. W. 265. The opinion of the Court of Civil Appeals treating the case on the last appeal is reported in 143 S. W. 311. The questions presented have been carefully considered upon other appeals, rendering it unnecessary to discuss at length any of them here.

The Court of Civil Appeals properly held the legal title to be in J. V. Tackaberry, one of the defendants in error, who had purchased the land in question from Frank Dunn after the pendency of the present suit, and prior to its trial. Tackaberry was inter-vener, relying upon title from Dunn. But the court further charged that the plaintiffs in error would be entitled to recover the tract of land sued for if they had held peaceable and adverse possession of it under recorded deeds for five years, and upon this question the plaintiffs in error prevailed in the trial court. The Court of Civil Appeals, however, reversed and rendered the judgment of the trial court, holding that there was a break in the possession of the plaintiffs in error and other parties who were plaintiffs in the district court between the dates of October 8, 1897, and December 29, 1897, being nearly three months during which there was no possession by the tenant. Their holding was as follows:

“The testimony does not sustain the verdict. It shows that there was adverse possession by tenants of the San Antonio National Bank commencing with Presnall and Blocker, who left the land in ,the fall of 1894. Ed English, according to the testimony of Sam English, went into possession in the fall of 1894, and Ed English testified he remained in possession as lessee for a year, or until the fall of the following year. This would make it the fall of 1895. Then it was leased to Cavender in October, 1895, and he had possession until October 8, 1897, when a lease was made to one Howell, who, however, did not go into possession at all, and on December, 29, 1897, he, by consent of the agent of the bank, transferred his lease to A. Eardley. From this evidence it may have been found that from January 1, 1893, to October 8, 1893, there was possession for four years and nine months, which was insufficient to satisfy the five-year statute. Between October 8, 1897, and December 29, 1897, there was a tenant, but no possession by him. Now if we' count from the possession recommenced on December 29, 1897, after this break we see that between that date and July 24, 1901, there were not five years.”

We have gone carefully over the briefs, arguments, and statement of facts, and we have reached the conclusion that this holding was correct. Howell, who leased the land in question October 8, 1897, on account of sickness, did not take possession at all, and the proof fails to show any one in possession until after December 29, 1897, when Howell transferred his lease to Eardley. The burden was upon the plaintiffs in error to show continuous. occupancy of the land, or if there were breaks in the possession to show that they were for only a reasonable length of time. The sickness of Howell could not be substituted for such occupancy. No proof was offered tending to show that the break in possession was for only a reasonable length of time. It is contended that this period was covered by the possession of Eardley with the consent of the San Antonio National Bank under a lease from it of other lands in the Thornton pasture, and by the consent of Howell. We find no evidence that Howell or the bank authorized Eardley to use the land in question, or consented to such use. It is contended by the plaintiffs in error that there is such evidence, but that which is pointed out, we think, amounts to no more than speculation. It is not equivalent to evidence.

We think the judgment of the Court of Civil Appeals, reversing and rendering the cause in favor of the defendants in error and against all parties who claimed adversely to them in the district court, should be in all things affirmed; and it is so ordered.
      ^sseFor. other cases see same topic and KEY-NUMBER in all Key-Numbered Digests, and Indexes


author: DAVIDSON, P. J.

text:
    CHILDS v. STATE.
    (No. 4382.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.
    On Motion for Rehearing, April 4, 1917.)
    1. Criminal Law &wkey;?1056(2) — Exceptions — Time — Statute.
    Under the statute it is necessary that exceptions be taken to the charge before it is read to the jury and before argument, unless there is fundamental error; so that, where exceptions were first raised in a motion for new trial, and. ' where there was no fundamental error, a conviction would not be reversed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2668.)
    2. Ceiminai, Law i&wkey;829(4) — Trial — Requested Instruction — Given Instruction.
    In a prosecution for theft of an automobile, the failure of the charge to inform the jury that, if defendant bought it, which was his account of his possession, or if they had a reasonable doubt of it, they should acquit, was not error, where the court in an approved charge submitted his reasonable account and explanation of his possession.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 2011.]
    On Motion for Rehearing.
    3. Criminal Law <&wkey;1056(2) — Trial—Exceptions — Time.
    Under the statute requiring exceptions to the charge to be taken before it is read to the jury, and before argument unless there is fundamental error, there is no exception in favor of an accused who is not represented by counsel.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig, § 2868.]
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Yernon Childs alias Somers was convicted of theft of an automobile, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

There are no bills of exception in the record. In the motion for a new trial there are some criticisms of the charge. Some of these would have been sufficient to have required a reversal doubtless, if called to the attention of the court before the charge was read to the jury, but this was not done, and nothing said about it until the motion for new trial was filed. These are not of such fundamental character as is recognized under the statute requiring a reversal in the absence of exceptions taken before the charge was read to the jury. To illustrate, appellant was on the stand, and testified to his having been arrested under charge of theft of automobiles at other times and places than that charged in the indictment. There was no limitation of this testimony, but there was no exception to the charge on this matter.

In the motion for new trial the charge is also criticized because it did not inform the jury that, if appellant bought the machine, which was his account of possession' of it, or if they had a reasonable doubt of it, they would acquit. The court gave a charge, which has been approved by this court, in this connection submitting his reasonable account and explanation of his possession. Wheeler v. State, 34 Tex. Cr. R. 353, 30 S. W. 913; Branch’s Am. Penal Code, pp. 1334,1335. It was not really necessary to have given it in the other form; that is, charging them that, if they believed he bought it, or had a reasonable doubt of it, they would acquit. The charge given sufficiently presented that matter.

We think the evidence fully justified the verdict, and the judgment will be affirmed.

On Motion for Rehearing.

. At a former day of the term the judgment herein was affirmed. Motion for rehearing is filed presenting again the alleged errors in the court’s charge. It may be a sufficient answer to all these matters that there was no exception taken to the charge of the court at any time except on motion for new trial, as evidenced by the record. Under the late statute it is necessary that, unless there be fundamental error, exception be taken to the charge before the argument is begun. This, of course, requires the court to charge the jury before argument.

Among other things, it is contended that appellant set up the fact that he purchased the auto in question. The record shows that appellant claimed the auto by purchase, and so testified on the trial. This was his account of possession. The court instructed the jury in language and approved form with reference to his explanation of possession of stolen property as set out in Wheeler v. State, 34 Tex. Or. R. 353, 30 S. W. 913. That case has been followed in a great number of cases, all of which will be found in volume 5, Rose’s Notes, in the annotation of the decision in the.Wheeler Case. There has been other decisions rendered to the effect that a simpler and as correct a way would be to inform the jury directly as to what the explanation was, and if it was true, or there was a reasonable doubt about, they should acquit. Had the court followed those decisions he would have charged directly that, if the jury believed appellant bought the auto, or there was a reasonable doubt as to whether he did or did not, they should give him the benefit of the doubt and acquit him. The form given by the court has been approved in an unbroken line of cases wherever that charge has been required as sufficiently presenting the matter.

We note the fact that appellant was not represented by counsel in the trial; otherwise these exceptions to the charge would doubtless have all been properly taken and presented; but the law has not made an exception in favor of the accused who is not represented by counsel, and this court would not feel justified in engrafting this exception on the statute. It might be worthy of consideration by the court, when looking at the case, to see that as near as is possible a fair trial has been awarded.

The failure of the court to give a charge with reference to purchase was not excepted to at the trial except in the motion for new trial. It is recited in the motion for rehearing that the court may not have read the charge to the jury as required by law, or presented it to the defendant for the purpose of his noting exceptions. There is nothing in the record that shows or indicates that the court failed to comply with the law in these respects. Of course, if it was shown, and verified so this court could act upon it, that the charge was not read to the jury or given to the defendant as required by the statute, we would have a very serious question, and one that would require this court to reverse. But the record does not sustain that view of appellant’s motion.

The motion for rehearing therefore will be overruled.
      <&wkey;>For other eases see Same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CAIN v. STATE.
    (No. 4395.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    Larceny <&wkey;55 — Evidence— Sufficiency.
    In a prosecution for theft, evidence held insufficient to sustain the conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Burrell Cain, alias King, was convicted of theft, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

Substantially, the facts show that on the night of the alleged theft appellant, the alleged owner Parker, and a witness named Chenéy, were sitting on the gallery of a house at which they boarded, which belonged to the witness Mrs. Criddell. The alleged owner states, after sitting there a while, he went to his room, which adjoined the gallery, to go to bed; that he counted his money, as he often did, and had about $278, and also had a watch supposed to be worth about $25; that before going to bed he went out on the. gallery and aroused the witness Cheney, who seems to have fallen asleep. After arousing him, the two went to bed in the room, Parker hanging his pants, with the money in one of the pockets, on the head of the bed. This room had a screened door which they latched on the inside, and the windows had screens which were nailed down. Appellant was on the gallery singing, it seems from the testimony of Cheney, after they retired to their room, and lay down. The singing disturbed him, and he made some comment, and defendant ceased singing and supposedly went to sleep. About the time Mrs. Oriddell retired, or was retiring, appellant went through her room and talked with her a moment, and went really or supposedly to his room, which was in the rear end of the house. The house consisted of four rooms in a straight line, all of them fronting east. Behind the house was a vacant square space between it and one or more beer saloons. On this vacant space the negroes would gather and “have a good time.” Mrs. Oriddell testifies that defendant paid her some money the day preceding the alleged theft, or shortly before, stating that he had only a small amount of money left. He paid her $1 at one time and 25 cents at another, leaving him, as she testifies, under his statement, with very little money. The next morning appellant and another negro, Mrs. Oriddell says, were eating breakfast at a café or restaurant somewhere about the town. She found them there, and another negro testified that during the meal defendant treated to beer. Appellant’s room, Mrs. Oriddell says, had one of the screened windows up the next morning. He left earlier than usual. It seems he was a laborer. The next morning Mrs. Oriddell seemed to be somewhat excited, and was perhaps the first one to discover that something had gone wrong in the house and talked about it. Finally, Parker and Cheney came and told her about the matter, and they went out on the front gallery. The screened door and windows of Parker’s and Cheney’s room had not been disturbed, but their pants were found on the gallery rolled up separately, with Parker’s money gone and Cheney’s money gone. Cheney says he had $21 and some cents and a watch supposed to be worth $25. Parker testified that appellant did not know that he (Parker) had the money, and, so far as the record goes to show, he was not aware that either of them had money. Parker went to the city hall tha next morning and gave information that his property had been stolen. A policeman named Pegues saw defendant the next evening late and had a conversation with him. What that conversation was is not stated, but after having this conversation, which occurred before an arrest, he examined defendant and found $7 on his person — a $5 bill and two $1 bills. Oheney says he lost one $1 bill, and Parker says he lost two or more. There is no reason given why the conversation between Pegues and appellant was not inserted in the record. This is practically the case, with fuller details of the testimony perhaps than was necessary.

We do not believe the evidence is sufficient to justify this conviction. It does not meet the requirements of circumstantial evidence, nor does it exclude every reasonable hypothesis except the guilt of the defendant. There were equal opportunities for others to have gotten the money. No one saw appellant in the room. Something like $300 in money and two watches were taken. They say appellant had a $5 bill and two $1 bills There was a $5 bill and four $1 bills lost, but that is too slender a circumstance, under the facts of this case, to justify the conviction. He may have gotten the money; he may not have gotten it. This record fails to show that he did, and the circumstances are not legally sufficient to so show, in our judgment.

There are bills of exception in the record; but as qualified and presented we will not discuss them, as they may not arise upon another trial, especially the alleged misconduct, of the jury.

The judgment is reversed, and the cause remanded.
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text:
    BATEMAN v. STATE.
    (No. 4406.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Criminal Law <&wkey;1104(3) — Appeal — Statement op Facts — Transcript.
    A statement of facts in a criminal case transcribed in the record and certified as part of the transcript should be stricken and not considered on appeal, since the original statement should have been sent up independent of the transcript.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2776, 2886.]
    2. Criminal Law &wkey;369(15) — Evidence — Other Opeenses — Identity op Dependant.
    Where defendant was accused of robbery committed in a barn by three men whom the prosecuting witness could not identify, and there was evidence that four men, including defendant, had been taken by a jitney to the barn where three of them, including defendant, had left the car for about 15 minutes, and that after their return the four were taken to another place not far distant, where there was a gathering of negroes, evidence that the defendant and his companion committed another robbery there, and that defendant was recognized by several witnesses, was admissible to show the identity of defendant as one of those who committed the robbery with which he was charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 824.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    J. F. Bateman was convicted of robbery by the use of firearms, and he appeals. Affirmed.
    Chas. Ashworth and Ross Huffmaster, both of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of robbery by the use of firearms, and his punishment assessed at five years’ confinement in the penitentiary.

The Assistant Attorney General moves to strike out and not consider the statement of facts because not brought before this court in the manner provided by statute, which provides the statement of facts in felony cases must be brought up separate from the transcript.' It seems that this motion is well taken. The statement of facts was transcribed in the record and certified as part of the transcript. It should not have been included in the transcript, but the original'statement of facts should have been sent up independent of the transcript of the proceedings. The statement of facts has, however, been read, and, in view of the fact that this matter would be cured by certiorari or by agreement of counsel, we have concluded to look at the case as if the statement of facts was properly before us.

Bills of exception were taken to the action of the court permitting the introduction of testimony not immediately connected with the offense charged. Viewed in the light of the qualification of the judge, the case could be affirmed without reference to the statement of facts; but, viewed in the light of the statement of facts and qualification of the judge, for the judge refers to the statement of facts in his qualification, there seems to have been no error in admitting this testimony, viewed in any light.

Briefly, the case is that there was a negro social function several miles from Crandall, in Kaufman county. A jitney driver took defendant and three others from the town of Crandall to this negro meeting. Just before reaching the place where the function was in vogue, and about a mile distant, the car was stopped. The four got out of the car and took a drink. One of the parties got back in the car, while the other three went to a barn about 100 yards distant; they weré gone a few minutes and returned. The party, who is alleged to have been robbed testified that he was one of the parties in the bam when three men entered and “held them up.” They robbed witness of about $3. This incident is the basis of this prosecution. He did not recognize any of the parties. They had a small light which the three robbers extinguished. Upon returning to the jitney, these parties got in, and the car went on about a mile to where the negroes were assembled at the function and began a series of acts, exhibiting and shooting their pistols, and robbed at least one party of something like $7. The jitney driver sufficiently identified defendant as one of the parties he took in his car and as one of them who left and went to the barn where the witness said he was robbed of $3 by the exhibition of a pistol. He was not present at that robbery and knew nothing about it, otherwise than the fact that the three parties left the jitney and were gone 15 or 20 minutes and returned. The parties at the barn did not recognize any of the parties, but at the social function appellant was recognized as one pf those engaged in that robbery. Some of the witnesses who saw the defendant and his crowd at the social function were carried-to the jail the next day after the arrest of appellant and circumstantially recognized the defendant as one of them. His identity at the social function over appellant’s objection was properly admitted.

The objection urged to the introduction of this testimony was that it was developing another crime, which it is contended was illegitimate and the evidence inadmissible. We would be inclined to agree with this proposition if appellant had been clearly identified at the time as one of the parties to the transaction relied upon by the state for conviction; but, as this was not the case, we are of opinion the court did not err in admitting the evidence of identification at the other times and places mentioned. These two transactions occurred within 30 or 40 minutes of each other and at night. Where the identity of the party is not definite as connected with the offense on trial, extraneous offenses may be introduced to connect and identify appellant with the case on trial. See Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812, and Wright v. State, 56 Tex. Cr. R. 357, 120 S. W. 458.

Under this view of the case, we are of opinion that, even considering the statement of facts, there was no error in the ruling of the court.

The judgment will be affirmed.
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author: MORROW, J.

text:
    LYNCH v. STATE.
    (No. 4398.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. Criminal Law <&wkey;1102 — Appeal—Facts Not Copied in Record.
    Where statement of facts is not copied in the record on appeal, a motion to strike it out will be sustained, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 844 permitting the state to controvert facts on respondent’s motion for new trial.
    2. Criminal Law &wkey;>719(l) — Remarks oe Prosecutor.
    The '«making of unsworn statements by state’s counsel before the jury on material facts adverse to defendant and not in evidence will require reversal of conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669.]
    Appeal from Rusk County Court; R. T. Brown, Judge.
    Dock Lynch was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    R.- T. Jones, of Henderson, T. J. Arnold, of Houston,- and J. Y. Gray, of Henderson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was prosecuted under a complaint and information charging him with aggravated assault; he was convicted by the jury, and his punishment fixed at a fine of $50 and 30 days’ confinement in the county jail.

The statement of facts is not copied in the record, and the Assistant Attorney General lias filed a motion to strike it out. Under the authority of Looper v. State, 62 Tex. Cr. R. 96, 136 S. W. 791, Wagoner v. State, 63 Tex. Cr. R. 180, 140 S. W. 339, Jenkins v. State, 64 Tex. Cr. R. 86, 141 S. W. 222, and Skinner v. State, 64 Tex. Cr. R. 84, 141 S. W. 231, construing article 844, Vernon’s Code Cr. Proc., the motion must be sustained.

In bill of exceptions No. 3 it is made to appear that one of the attorneys for the state, in his argument to the jury, used the following language:

“Talk about this defendant not being guilty, and he denying that he came up here and offering to plead guilty if I would let him out for a simple assault, he denies this; but, gentlemen of the jury, I know what he did; I know the defendant is guilty; that the testimony of Mrs. Eynch, because the defendant came to me before this ease came to trial and told me that he would plead guilty if I would give him the lowest fine.”

That no witness testified to this, and that the defendant while on the stand was asked if he had not offered to plead guilty and denied it. Exception was taken during the argument and 'overruled.

Bill of exceptions No. 4 shows that, while one of the attorneys for the state was closing the argument, the following proceedings occurred:

“The attorney was making reference to the conduct of the defendant, and stated that, while there was no proof before the jury about the way the defendant treated his wife down at Poole & Strong’s sawmill, when his first child was born, he denied that he got drunk and came home and mistreated his wife and ran his mother-in-law off while she was there to wait on her daughter with childbirth; he, the attorney, could tell the jury that it did happen, and would tell — then defendant’s counsel objected, interrupted the argument of said attorney, when said attorney said before the court and jury that he knew there was no evidence in, and that it was not right to argue such, but he believed that he -would take a shot at it anyway, defendant’s counsel still objecting, and ask the court to instruct the jury not to consider such remarks. The court did instruct the jury not to consider such remarks, and told the counsel making the argument to proceed with the argument and stay within the rules. Then over objections he again said he was going to take a shot at it, and began to discuss matters that were not in evidence, saying, in substance, that defendant’s wife and mother knew what happened there; that he had talked with her mother and knew what she said about it, and would believe them in preference to defendant; defendant objected then and there.”

Seasonable objections were made to this argument, and the matter is brought up by proper bill of exceptions. It appears from the record the prosecution was for an assault upon appellant’s wife. A special charge was requested and refused, and exception reserved, asking the court to withdraw from the jury the question propounded upon which the argument last referred to was based. The motion for new trial and appropriate assignments complain of the arguments mentioned.

It has beeri held by this court many times that unsworn statements of counsel for the state before the jury, on material facts adverse to a defendant which are not put in evidence during the trial, will require the judgment of conviction to be set aside. Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; Gusman v. State, 72 Tex. Cr. R. 258, 171 S. W. 770; Harris v. State, 72 Tex. Cr. R. 117, 161 S. W. 127; Bradley v. State, 72 Tex. Cr. R. 287, 162 S. W. 515; Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Johnson v. State, 66 Tex. Cr. R. 586, 148 S. W. 328; Liner v. State, 70 Tex. Cr. R. 75, 156 S. W. 211; Branch’s Ann. Penal Code, § 364, and eases cited. Under these authorities we think the- facts disclosed by the bills of exception mentioned require the 'judgment of the lower court to be reversed and remanded; and it is so ordered.
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text:
    NAVE v. STATE.
    (No. 4407.)
    (Court of Criminal Appeals of Texas.
    March 21, 1917.)
    1. ELECTIONS <&wkey;328(l) — PAYING POLL TAX— Advancing Monet — Indictment.
    An indictment under Pen. Code Í911, § 239, declaring it an offense to advance money to another knowingly to be used to pay the other’s poll tax,. must charge defendant advanced it knowing it was to be so used.
    [Ed. Note. — Eor other cases, see Elections, Cent. Dig. §§ 355, 360.]
    2. Indictment and Ineoemation <&wkey;119 — Subplusage — Date.
    The year, in the charge of an indictment that defendant advanced money to another to be used by him for payment of his poll tax for the year 1916, cannot be treated as surplusage, being part of the description of the offense.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 311-314.]
    Appeal from Live Oak County Court; W. W. Caves, Judge.
    Dr. S. F. Nave was convicted, and appeals.
    Reversed, and order dismissed.
    Lewright &' Douglas, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges, omitting formal parts:

“That Dr. S. E. Nave, on or about the 10th day of January, 1916, and anterior to the presentment of this indictment, in the county of Live Oak, and state of Texas, did then and there unlawfully advance to George Cherry money, to wit, $2 currency of the United States of America, to be used by the said George Cherry for the payment of the poll tax of said George Cherry for the year 1916, against the peace and dignity of the state.” ■

Motion was made to quash this indictment on several grounds. It will be noticed from the reading that it fails to 'charge, as required by .article 239 of the Revised Penal Code, that appellant advanced this money knowing it was to be used in paying a poll tax. This would render the indictment vicious. It will be further noticed that the indictment nowhere charges that this would or could have qualified Cherry as a voter in Live Oak county, or that it could qualify him as a voter. It will be noticed in this connection on the face of the indictment that the money was to be used by Cherry for the payment of a poll tax for the year 1916, and that this occurred about the 10th day of January, 1916. The Assistant Attorney General calls attention to this, with the admission that this could not occur because the taxes of 1916 were not due nor payable; that it could only have been for the payment of the tax of 1915, and contends this could be treated as surplusage. This is descriptive of the offense, and charges definitely that the $2 was advanced to Cherry for the payment of a poll tax for 1916. The contention, we think, of the Assistant Attorney General ought not to be sustained as to its being sur-plusage.

For several reasons it is urged by appellant that the evidence is not sufficient to support the conviction. The facts, substantially, disclose that Cherry was a resident citizen until the fall of 1915 of Milam county, Tex., and not of Live Oak county. He, therefore, did not ¿we any poll tax in Live Oak county for the year 1915. It is useless to discuss this question, because he did not owe a poll tax in that county at the time. The tax collector says he called Cherry’s attention to that fact at the time he paid the money, but Cherry insisted on paying it.

There is another question in the case, strongly presented and ably discussed, which the writer believes to be well taken, but his views have not prevailed, as is shown by the opinion of the majority in the motion for rehearing in Solon v. State, 54 Tex. Or. R. 261, 114 S. W. 349. This has been followed by two or three later decisions. To the prevailing opinion in that case the writer entered a dissent. These are matters now of judicial history, and can be found reported in 54 Tex. Cr. R. at page 261, 114 S. W. 349. The writer has not yet seen any reason for changing his opinion and the reasons therefor as presented in the dissenting opinion in that case.

The indictment in the case being insufficient to charge an offense for the reasons stated, the judgment will be reversed, and the prosecution ordered dismissed.
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author: DAVIDSON, P. J. PRENDERGAST, .1.

text:
    WILSON v. STATE.
    (No. 4377.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.
    Dissenting Opinion March 13, 1917. State’s Rehearing Denied April 11, 1917.)
    1. False Pretenses <&wkey;51 — Trial—Question tor Jury.
    In a prosecution for swindling by obtaining money on false representations that accused was deaf and dumb, whether accused was in the town of prosecuting witness’ residence and obtained money from him as alleged held for the jury.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 63.]
    2. False Pretenses <&wkey;29 — SWINDLING—INFORMATION — SuraTCIENOy.
    In a prosecution for swindling, perpetrated at least in part by means of an instrument in. writing, stating that accused was deaf and dumb, an indictment which failed to set out such instrument in hsec verba, or at least its substance with sufficient reasons why it was not so set out, was bad.
    [Ed. Note. — For other eases, see False Pretenses, Cent. Dig. §§ 34L36.]
    Prendergast, J., dissenting.
    Appeal from Lee County Court; John H. Tate, Judge.
    J. J. Wilson, alias R. J. McGarry, was convicted of swindling, and he appeals.
    Reversed, and prosecution ordered dismissed.
    E. T. Simmang, of Giddings, for appellant. E. B. Hendricks, Asst. Atty. Cíen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of swindling, his punishment being assessed at a fine of $10 and ten days’ imprisonment in the county jail.

The indictment charges that appellant swindled M. J. Dodson by representing to him that he was then and there deaf and dumb, and did by means thereof induce Dodson to give him 25 cents in money. The allegations are that these representations were false, and that he was induced to part with this money by reason of those false representations.

Dodson was placed on the witness stand, and testified, substantially, that appellant came to him at his place of business at Tanglewood, Lee county, Tex.; that he was engaged in blacksmithing, and also ran a grocery store; that appellant showed him a letter or instrument signed, or purported to be signed, by the county clerk of Karnes county, with seal attached to or impressed on it, stating that he was deaf and dumb and wanted to go to school; that by reason of these statements in this letter or document he gave appellant 25 cents. Appellant denied ever being in Tanglewood, where Dodson resided, or ever seeing Dodson, or ever having obtained any money from him; that he never begged anything from anybody in his life. This, of course, would be a matter of fact for the solution of the jury. On the trial, while Dodson was on the stand, at the instance of the state, on his direct examination, he was permitted to testify that defendant approached him in Tanglewood on or about the 27th of November, 1916, and presented to him a written instrument purporting to have been executed by the county clerk of Karnes county, which said instrument in writing certified that J. J. Wilson was deaf and dumb and wanted to go to school; any favors shown him would be ap-predated; that said instrument had impressed thereon a seal; that this instrument was what induced him to part with his money. Appellant objected to the testimony because inadmissible, inasmuch as the alleged swindle was perpetrated by means of an instrument in writing, and because the complaint and information fails to allege that said swindle was perpetrated by means of such instrument in writing, and that said testimony was also inadmissible because the information did not undertake to set out in hsee verba or substantially the said instrument in writing or its contents, which objections were overruled, and witness testified as above indicated. These objections should have been sustained.

Without going into a general review of all the questions involved in this matter, it is sufficient to state that this instrument should have been set out in the indictment,' if it was in possession of the prosecuting officer, or, if not, then sufficient reasons should have been given why it was not so set out and the substance of it charged. Such we understand to be the law, and has been the law in Texas at all times. An indictment for swindling is bad if it fails to set out by its tenor, or substantially so with good reason for not so pleading it, the written instrument which was the inducement, or in part the inducement. See White v. State, 3 Tex. App. 609; Dwyer v. State, 24 Tex. App. 132, 5 S. W. 662; Hardin v. State, 25 Tex. App. 75, 7 S. W. 534; Ferguson v. State, 25 Tex. App. 452, 8 S. W. 479; Salter v. State, 36 Tex. Cr. R. 504, 38 S. W. 212; Lively v. State, 74 S. W. 322; Doxey v. State, 47 Tex. Cr. R. 506, 84 S. W. 1061, 11 Ann. Cas. 830. This is a case wherein the swindling was predicated upon the instrument in part, if not entirely. It was used in order to obtain the money, and fomfed the basis of the supposed swindle. The money was obtained on the face and statements of the written instrument. In White v. State, supra, syllabus states the rule:

“When a written instrument enters into an ofíense as a part or basis thereof, or when its proper construction is material, the instrument should, as a general rule, be set out in the indictment.”

Under such circumstances the same rule applies largely as. in forgery cases. In Dwyer v. State, supra, the syllabus thus states it:

“If a written instrument enters into the offense as matter of inducement, the said instrument should be set out, as in forgery.”

The cases cited, supra, are in line, and sustain the other cases. This rule could be traced back and shown to have been laid down by the Supreme Court before the creation of the Court of Criminal Appeals. Under these authorities we hold that this case should be reversed. The pleading should have alleged the instrument in h£ec verba, if that could be done. If not, then it should allege it substantially, giving the reasons why it could not be alleged according to its face and ten- or. As the information presents the matter, appellant was charged with the swindling by verbal statements and inducements. The testimony offered and introduced over appellant’s objection shows that it was done by means of the written instrument, and this is shown in the bill of exceptions above mentioned. From any viewpoint, this case should not be affirmed. In the first place it should have alleged the instrument, and in the next place the evidence could not be introduced in regard to the written instrument as presented, and where the instrument was obtainable and was, in whole or in part, the inducing cause, it should have been alleged and proved.

The judgment will be reversed and the prosecution ordered dismissed.

PRENDERGAST, .1.

(dissenting). My Associates reverse and dismiss this cause. From their opinion this is done because the complaint and information fail to set out in hsec verba a false written certificate with a seal attached, purporting to have been made by the county clerk of Karnes county. Neither the complaint nor information disclose that the swindle was perpetrated by means of any such writing or any other. So far as this record discloses, they learn that such writing had ever existed solely through a bill of exceptions by appellant to the testimony of the swindled witness, Mr. Dodson.

Heretofore all courts have held that new outside matter cannot be injected into any pleading by even a “speaking demurrer,” and then because thereof hold the pleading defective; much less that such new matter can be injected into the pleading by a bill of exceptions to the admission of testimony on the trial, and then and thereby hold the pleading bad. Such doctrine has never been heard of before, and cannot be maintained under any circumstances. Even if the admission of such testimony as disclosed by the bill herein could be held to be error at all, it would be no ground for dismissing the case, but at most would only be a ground to reverse and remand.

The cases cited in the opinion for the doctrine laid down therein that it was necessary to copy said certificate in hsec verba, etc., in the information are inapplicable, and their effect misapprehended. Said certificate was not the false pretense itself, nor the inducement itself, but merely the means whereby the false pretense was presented to, and the money gotten from, Mr. Dodson. Take the Dwyer Case cited in the opinion as the strongest case cited. In that case the money was obtained wholly upon the “discharge certificate,” and the money would not have been paid, except upon the delivery of the “discharge certificate” itself. In this instance the money was not obtained from Mr. Dodson on said false certificate nor was it delivered to, nor kept by, Mm. But It was simply the means of conveying the false pretense by appellant to Mr. Dodson. The false pretense was that appellant was deaf and dumb, not that the county clerk of Karnes county had so falsely certified.

The evidence herein, without doubt, clearly shows that appellant swindled Mr. Dodson, as alleged; the jury and court below so found, and this case should not be reversed and dismissed, nor reversed and remanded either. It should be affirmed.
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