author: KEY, C. J.

text:
    SHUMAKER et al. v. BYRD.
    (No. 5890.)
    (Court of Civil Appeals of Texas. Austin.
    March 7, 1918.
    Rehearing Denied April 3, 1918.)
    1. Appeal and Erboe &wkey;j499(2) — Demurrer —Waive».
    Where the record on appeal does not show that a demurrer and exception to plaintiff’s petition were called to the attention or ruled on by the trial court, they will be regarded as waived.
    2. Tbespass to Try Title <&wkey;32 — Complaint —Sufeicienoy.
    A complaint in trespass to try title alleging that plaintiff was in possession of the land sued for, describing it, that defendant on a stated date unlawfully entered upon the premises and ejected the plaintiff therefrom, and unlawfully withholds possession thereof to plaintiff’s damage, that the property is being kept by defendant in a manner reasonably calculated to injure it and destroy its market value, and that plaintiff fears that defendant will make use of such possession to injure the property, was suffi cient as against a general demurrer.
    3. Trial &wkey;>273— Reservation op Exceptions — W aiver.
    Where appellants have- failed to object to instructions before they were read to the jury, they must be held to have approved them and waived their objections.
    Appeal from District Court,, McLennan County; E. J. Clark, Judge.
    Trespass to try title by Moses Byrd against Nora Shumaker and others.. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Tom M. Hamilton and H. C. Lindsey, both of Waco, for appellants. J. D. Willis, of Waco, for appellee.
   KEY, C. J.

This is an action of trespass to try title, which resulted in a verdict and judgment for the plaintiff, and the defendants have appealed.

The first assignment complains of the alleged action of the trial court in refusing to postpone the trial, but the transcript contains no- bill of exception relating to the matter referred to, and the statement of facts, which is referred to in support of the assignment, does not sustain the same. In fact, it shows that the case was set for trial at a particular time; that appellants’ attorney at that time was otherwise engaged at another court; that he appeared in the court below just as the jury came in with the verdict, and before it was read asked for time to produce his evidence; but the testimony there referred to shows that the court offered to give the attorney ten minutes to get his witness, who, he said, lived in W]aco, where the case was being’ tried, but the attorney replied, “Just let it stand like it is;” and the court then stated, “I will set the verdict aside,” to which the attorney replied, “No, sir; just let it stand as it is.” Instead of that showing that an exception was reserved to the action of the court in refusing to allow appellants time to procure their testimony, it shows that the court offered to set the verdict aside in order to allow such time, but that appellants’ counsel objected to that course being pursued.

The second and-third assignments complain of the alleged action of the trial court in failing to sustain the defendants’ general demurrer and exception to the plaintiff’s petition, but the record does not show that the demurrer and exception’ referred to were called to the attention of or ruled upon by the trial court, and therefore they must be regarded as waived.

Under those assignments it is contended that the ease discloses fundamental error, because the petition alleges that the plaintiff was in possession of the premises after he was alleged to have been evicted therefrom. -The petition alleges that on or about the 23d day of December, A. D. 1915, the plaintiff was lawfully seized and possessed of the land and premises sued for, and then follows a description of the land, which includes reference to two deeds, one dated December 17, 1915, and the other dated December 18, Í915. The petition then alleges that:

On the day and year last aforesaid the defendants unlawfully entered upon the premises and ejected the plaintiff therefrom, “and unlawfully withholds from him the possession thereof, to his damage in the sum of $500; that your petitioner will further say to the court that said property is being occupied and used by the defendant's in a manner reasonably calculated to injure it, damage and destroy the market value thereof, and he fears the defendant will make use of such possession to injure said property.”

Considering all of the terms of the petition, we are of opinion that as against a general demurrer it is sufficient to support the judgment.

Several assignments complain of the charge given by the trial court, but as appellants failed to present any objection to the charge before it was read to the jury, they must be held to have approved the same and waived the objections now urged. I. & G. N. Ry. Co. v. Bland, 181 S. W. 504; Ry. Co. v. Dickey, 108 Tex. 120, 187 S. W. 184.

Some other questions are presented in appellants’ brief which we deem unnecessary to discuss in this opinion. They have all been considered and are decided against appellants.

No error has been shown, and the judgment is affirmed.

Affirmed.
      «gn^For other oases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    CONLISK v. COLLINS.
    (No. 5888.)
    (Court of Civil Appeals of Texas. Austin.
    March 13, 1918.)
    • Trial <&wkey;350(3) — Special Issues — Submission.
    It is not error to refuse to submit special issues, when such issues are not raised by the pleadings.
    Appeal from Bell County Court; M. B. Blair, Judge.
    • Action by T. H. Collins against J. B. Con-lisk. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    A. D. Dyess, of Houston, for appellant. J. B. Talley, of Temple, for appellee.
   JENKINS, J.

This suit was brought by appellee on an itemized account to recover for certain lumber alleged to have been sold and delivered by him to appellant at an agreed price. Appellant admitted that he received the lumber, but denied that he purchased the same. He alleged that it was left with him by appellee for sale at the best price attainable, and that after paying the freight and other expenses incident to selling the same there was due appellee on said lumber only the sum of $60. Appellee pleaded in reconvention for a pump, $50, and a belt, $20, which he alleged he had sold and delivered to appellant. Appellant admitted the charge for the pump, but denied that he had received the belting, or that the same had been shipped to him according to his contract with appellee.

In response to special issues submitted to them, the jury found that the lumber had been sold and delivered to appellant as alleged by appellee, and that the belting had not been shipped according to contract. The evidence sustains the finding of the jury. Such being the fact, if no material error was committed on the trial, the judgment of the trial court must be affirmed.

The court did not err in refusing to submit the special issues requested by appellant, for the reason such issues were not raised by the pleadings. The argument of counsel complained of was not such as was calculated to influence the jury to render an improper verdict.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.


text:
    MANSFIELD et al. v. GERDING.
    (No. 5892.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 27, 1918.)
    1. Partnership <&wkey;291 — Dissolution—“Actual Notice” — “Implied Notice.”
    In an action for rent against a partnership dealing in oil, the fact that the oil fields, wherein the partnership dealt, commenced to fail, and their business ceased to be profitable, did not put the landlord on inquiry to ascertain whether the partnership still existed (citing Words, and Phrases, Notice).
    2. Appeal and Error <&wkey;501(4) — Reservation of Exceptions — Necessity.
    Where the record fails to show that appellant reserved exceptions to the trial court’s refusal to give requested instructions, the assignment will not be considered.
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by E. D. Gerding against H. P. Mansfield and others. From a judgment for plaintiff <>n appeal from a justice of the peace, defendants I-I. P. Mansfield and C. E. Shults appeal.
    Affirmed.
    W. H. Tarkington, of Taylor, and Nunn & Love, of Georgetown, for appellants.
   KEY, C. J.

This case originated in a justice of the peace court, and was appealed to and finally tried by the county court. The plaintiff recovered, and two of the three defendants have appealed.

The plaintiff’s cause of action was based upon an alleged breach of contract for rent. The plaintiff alleged and submitted testimony sufficient to prove that the three defendants, as partners engaged in oil activities in the town of Thrall, rented a room, which constituted a portion of the hotel owned by the plaintiff in the city of Taylor, and that they failed to pay all the rent; the balance that was unpaid being sufficient to justify the verdict and judgment for $100, which was rendered in plaintiff’s favor. The defendants Mansfield and Shults, who have appealed, testified that after the lease contract was entered into, and prior to the time for which the plaintiff sought to recover, the partnership referred to had been dissolved, and that after such dissoluiion neither of the appellants was interested in the business, which seems to have been continued by the other partner. The plaintiff testified that he had no knowledge or notice of the alleged dissolution of the partnership, and the court instructed the jury as follows:

“You are further instructed that after a partnership has been dissolved the members thereof cannot create obligations which will bind the firm, or change the character or form of contracts already existing, but it devolves upon them to give actual notice to those with whom such firm has been dealing; and any act done within the scope of the partnership by any one member of the firm, after its dissolution, and before actual notice of such dissolution, to those with whom the firm has been dealing, is binding upon all members of the partnership.”

Appellants have assigned error upon that paragraph of the charge, one contention being that the expression “actual notice” was misleading, and calculated to cause the jury to believe that it was necessary for appellants to prove that appellee had actual knowledge of the fact of dissolution, whereas, it is contended that if he had knowledge of such facts as by the use of ordinary diligence would have resulted in actual knowledge of the dissolution, that would constitute sufficient notice.

If appellants’ contention is correct, and the charge is subject to the criticism urged, still it affords no ground for reversing this case. There was no proof of any fact which made it the duty of the plaintiff to make any investigation concerning the partnership. One member of the firm remained in possession of the rented premises, while the others returned to their homes in other parts of the state. It is true that a short- time before ■the dissolution occurred the oil field at Thrall commenced to fail, and that the business in which the firm was engaged soon ceased to be profitable, and the plaintiff was aware of those' facts, but such knowledge did not put him upon inquiry. In other words, knowledge of those facts did not impose upon the plaintiff any duty to the appellants to ascertain whether or not the partnership continued, or had been terminated, and therefore there was noi testimony which called for a charge upon notice implied from knowledge of facts sufficient to put the plaintiff upon inquiry. '

There seems to be considerable diversity of opinion, if not direct conflict of authority, as to what constitutes actual notice. .Some authorities holding that it means direct information and knowledge of the fact, while others hold that actual notice may be either express or implied. If the one, it is established by direct evidence; if the other, by proof of circumstances, from which it is inferable as a fact. These authorities hold that actual notice embraces not only direct knowledge of the fact, but that it includes implied notice, which arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the particular fact. Citation of these conflicting authorities may be found in volume 5 of “Words and Phrases,” on page 4840. In this case it is not necessary for this court to make a definite ruling upon that subject, because, as stated before, there was no evidence which called for a charge upon the question of implied notice resulting from knowledge of facts and circumstances sufficient to require further investigation. The other objections to the charge are untenable.

The other assignments complain of the' action of the trial court in refusing to give certain requested instructions, but the record fails to show that appellant reserved any exception to the rulings referred to, as required by statute, and therefore those assignments cannot be considered. I. & G. N. Ry. Co. v. Bland, 181 S. W. 504; Railway Co. v. Dickey, 108 Tex. 126, 187 S. W. 184.

No reversible error has been shown, and the judgment is- affirmed.

Affirmed.
      <gs»For other cases see same topic and KEY -NUMBER in ail Key-Numbered Digests and Indexes


author: FBY, C. J.

text:
    CUMMER MFG. CO. v. KELLAM BROS.
    (No. 6012.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 17, 1918.
    Rehearing Denied May 15, 1918.)
    1. Corbobations <&wkey;503 (2) — Venue.
    Under Rev. St. 1911, art. 1830, authorizing action against a private corporation in any county in which a part of the cause of action arose, it may be sued in the county in which its breached contract to furnish goods was made through its agents, and to and in which the goods were to be delivered and paid for, in part at least, even if the contract ’had to be sent to . the corporation for ratification.
    2. Akpeal and Ebeob &wkey;>843 (2) — -Academic Question.
    Whether the trial court should have proceeded to trial without waiting for decision of . appeal from overruling of plea of privilege to be sued in another county, is an academic question, as decision thereof would not expedite a trial on the merits.
    Appeal from District Court, Frio County; Covey C. Thomas, Judge.
    Action by Kellam Bros, against the Cum-mer Manufacturing Company. From an adverse judgment, defendant appeals.
    Affirmed.
    John D. Hartman, of San Antonio, for appellant. C. A. Davies, of San Antonio, and Frank H. Sweet, of Brownwood, for appel-lee.
   FBY, C. J.

This is a suit instituted by ap-pellees to recover of appellant damages resulting from the breach of a contract to furnish crates in which appellees desired to ship their onion crop. Appellant filed a plea of privilege to be sued in Lamar county, Tex., to which appellees answered that the contract was to be performed in Frio county, and, further, that appellant is a private corporation and can be sued in any county in which a contract is made by itself or its agents, and that the contract in question was made in Pearsall, Frio county, Tex. The court overruled the plea of privilege.

The evidence in this case shows that ap-pellees ordered, through the agents of appellant, 10,000 crates to be used in shipping onions by appellees. The crates were to be delivered in Frio county. The changes suggested to be made in the contract by appellant were accepted by appellees. The contract was made in Frio county by appellant, a private corporation, through its agents dealing with appellees. The agents were duly accredited and had authority to sell the crates.

In the twenty-fourth exception to article 1830, Revised Statutes, which provides that no inhabitant of Texas shall be sued out of the county of his domicile, it is provided that:

“Suits against any private corporation, association or joint-stock company may be commenced in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated.”

It is admitted by appellant that it is a private corporation and that Flory & Albers were its agents and made , the contract with appellees. In addition, the cause of action arose in Frio county. The cause' comes clearly within the purview of the statute and the venue was in Frio county, as held by the trial court. Electric Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Oil Co. v. Texas Refining Company, 55 Tex. Civ. App. 81, 118 S. W. 194.

The order in this case for the crates was executed in Frio county, and is signed by appellee and Flory & Albers, the salesmen of appellant. It contained no reference to any confirmation by the principal and must be taken at its face value in connection with the question of venue. The contract having been made in Frio county, there is much authority for the proposition that by reason of that fact venue could be laid in that county. As said in the case of Mangum v. Lane City Rice Milling Co., 95 S. W. 605:

“A cause of action consists of the right of the plaintiff, as well as of the injury to that right, and when the right arises from or is based upon a contract, such right comes into existence at the time and place of the making of the contract, and it necessarily follows that a cause of action growing out of a breach of contract arises, or comes into existence, in part, at the place at which the contract was made.”

In the case of Railway v. Hill, 63 Tex. 384, 51 Am. Rep. 642, a plea of privilege was dismissed and the court held:

“This court has held that a cause of action consists as well of the right of the plaintiff as of the injury to that right. Rhillio v. Blythe. 12 Tex. 127. The right of the plaintiff in this cause accrued by reason of his contract with the defendant, which was made in Galveston county. The injury arose from a breach of that contract, and as the contract itself was to be in part performed in that county, and was wholly broken, a cause of action arose there, and the suit was properly instituted in Galveston county.”

In the case now before this court the contract" was made in Frio county, and the crates were to be shipped there and payment was to be made, in part at least, there.

Again, in the case of Rhome Milling Co. v. Cunningham, 171 S. W. 1081, the Conrt of Civil Appeals of the Second District held:

“The undisputed facts show that Williams bought the goods in question in the town of Comanche from the traveling salesman and ■agent of appellant, and that payment for the same was to be made at that place at the Farmers’ & Merchants’ National Bank by taking up drafts for shipments which were to be made f. o. b. Comanche, Tex., and that the Comanche bank, to whom appellant was to send its drafts, upon the payment by Williams, was to remit the proceeds to appellant. It thus appears that the cause of action, at least in part, arose in Comanche county.”

The same rule was laid down by that court in. Kell Milling Co. v. Bank, 155 S. W. 325. To the same effect are Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399; Houston Rice Milling Co. v. Wilcox, 45 Tex. Civ. App. 303, 100 S. W. 204; Planters’ Oil Co. v. Whitesboro Cotton Oil Co., 146 S. W. 225; and Western Wool Co. v. Hart (Sup.) 20 S. W. 131.

If it should be held that the agents of appellant could not complete the contract, but that it had to be sent to appellant to be ratified, still the contract was made in Frio county. As said by this court in the Troell Case, hereinbefore .cited:

“The contract having been made and entered into between the parties in Guadalupe county (for its approval by an executive officer of the company in Pennsylvania related to the time and place it was made, and was only a ratification of it), we must hold, under the au-' thorities cited, that a part thereof accrued or arose in that county, and that appellant’s plea of privilege of being sued in the county of the residence of its agent was properly overruled.”

Appellees desire that this court pass on the question as to whether the trial should have proceeded on the merits after the plea of privilege had been- overruled, or should have been postponed until this appeal was decided. That presents an interesting question, but no good end would be subserved by deciding it in this case, because such decision would not expedite a trial on the merits, and the question is therefore merely academic. It will be decided when it becomes necessary, but its decision would be useless in this case.

The judgment is affirmed.

        ®pz>Vor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    REASONER v. GULF, C. & S. F. RY. CO.
    (No. 2514.)
    (Supreme Court of Texas.
    May 22, 1918.)
    1. Release <&wkey;52 — Inadequacy of CONSIDERATION — Pleading.
    In an action by servant for injuries, aver-ments that release was procured by defendant by means of representations of its claim agent and surgeon that plaintiff was not seriously injured and would be well in two months, that the representations were made by such claim agent and surgeon as agent of defendant duly authorized to secure the release, that the representations were made for the purpose of inducing plaintiff to execute the release, and that plaintiff believed the representations and was thereby induced to sign and deliver the release, . when in fact plaintiff was then suffering from permanent injuries from which he would continue to suffer, were sufficient, as against general demurrer, to avoid release on ground of false representations.
    2. Pleading <&wkey;21 — Conflicting Allegations — Injuries to Servant — Petition.
    Petition, which, in addition to claiming damages for injuries alleged to be permanent and wholly disabling plaintiff servant sought damages for breach of contract for plaintiff’s continued employment as fireman, did not present inconsistencies and repugnancies fatal to any right of recovery for injuries, since the averment that plaintiff had been wholly disabled physically, and was unable to discharge the duties of any employment, negatives cause of action, attempted to be stated for breach of contract for continued employment.
    3. Appeal and Error &wkey;>1040(3) — Harmless Error — Demurrer—Reversal.
    Where general demurrer, as well as special exceptions, were sustained to plaintiff’s petition sufficient as against general demurrer, judgment will be reversed on plaintiff’s appeal, though he failed to complain of the sustaining of exceptions.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by W. H. Reasoner against the Gulf, Colorado & Santa FS ' Railway Company. Judgment for defendant, dismissing action, was affirmed by Court of Civil Appeals (152 S. W. 213), and plaintiff brings error.
    Reversed and remanded.
    Odell & Johnson and S. C. Padelford, all of Cleburne, for plaintiff in error. Terry, Cavin & Mills, of Galveston, Dee & Lomax, of Ft. Worth, and Brown & Lockett, of Cle-burne, for defendant in error.
   GREENWOOD, J.

The single question on this writ of error is whether a general demurrer was properly sustained to the amended original petition,, whereby plaintiff in error sought to recover damages of defendant in error.

The petition contained allegations which were sufficient to show that plaintiff in error had been damaged in the sum of $7,500 from personal injuries sustained by him, while in the employment of defendant in error, as the proximate result of its negligence. It is contended for. defendant in error that, admitting these allegations to he true, no recovery could be had: First, because the petition, having admitted the execution by plaintiff in error of a release of his claim, for damages; averred no facts sufficient to avoid the release; and, second, because allegations of the petition, seeking to show causes of action for damages arising from breach of a contract to, continue plaintiff in error in the employment of the railway company and to furnish him a satisfactory service certificate, destroyed, through inconsistency and repug-nancy, all the allegations of permanent injury to plaintiff in error, without which he did not show any cause of action. The Court of Civil Appeals sustained the latter contention,

It was averred in the petition that the release was procured by defendant in error by means of representations of its claim agent and surgeon that plaintiff in error was not seriously injured and would ■be well in two months, and that the representations were made by such claim agent and surgeon as agents of defendant in error, duly authorized to secure the release; and it was also averred that the representations were made for the purpose of inducing plaintiff in error to execute the release, and that plaintiff in error believed the representations, and was thereby induced to sign and deliver the release, when in fact plaintiff in error was then suffering . from permanent, injuries to brain and spine, besides other injuries, from which he would continue to suffer all his life. These averments were sufficient, as against the general demurrer, to avoid the release. H. & T. C. R. Co. v. Brown, 69 S. W. 652; H. & T. C. R. Co. v. Bright, 156 S. W. 310.

In our opinion, the petition does not present the inconsistency's and repugnancies which were held fatal to any right of recovery thereon. It is true that, in addition to suing for damages claimed for injuries alleged to he permanent and incurable and arising from the negligence of the railway company, the plaintiff also set up a contract with the company, for his continued employment as a locomotive fireman and for a certain kind of service certificate, and sought to recover damages for breach of such contract. No matter how necessary it may have been for plaintiff in error to have alleged his ability to perform the work of a fireman or to have done some other kind of railroad work, in order to have stated any canse of action for damages for breach of contract, it cannot he held that his petition contained such allegations in the face of its express averments to the contrary. The presence of such express averments negatives the causes of action, attempted to be stated for damages for refusal to continue to employ plaintiff in error or to give him a service certificate on which to seek other railroad employment. The defendant in error properly availed itself of these express allegations when it had the trial court to sustain a special exception to all that portion of the petition setting up plaintiff in error’s wrongful discharge and his inability to secure employment with any railway company by reason of the character of his service certificate “because it appears from the averments of the petition, if there is any truth, whatsoever in the matters alleged, that ever since his claimed injury, plaintiff has been wholly disabled physically and incapable of performing any labor, and was a physical wreck, and therefore unable to discharge the duties of any employment.” In the face of contradictory facts, .plainly stated, the law neither implied allegations into the petition to strengthen it against the special exceptions, nor to weaken it against the general demurrer. The allegations of the petition were ■therefore in no true sense inconsistent or repugnant.

It is insisted that though the general demurrer, standing alone, ought to have been overruled, yet the judgment sustaining it should be affirmed, because no complaint is made by plaintiff in error of the action of the trial court in sustaining 11 special exceptions to his petition.

The question here presented is not an open one in this state, this court having declared in Bigham Bros. v. Port Arthur Channel & Bock Co., 100 Tex. 202, 97 S. W. 689. 13 L. R. A. (N. S.) 656:

“Counsel for defendant in error insists that, although the court may have erred in sustaining the general demurrer, yet the judgment should not be reversed for that reason because some of the special exceptions were properly sustained and the plaintiffs did not amend their petition. The correct rule of practice is thus stated by Chief Justice Willie in the case of Everett v. Henry, 67 Texas, 405 [3 S. W. 566]: ‘We think the petition showed a good cause of action against Henry, and that his general demurrer should not have been sustained. This renders it unimportant whether the special exceptions of the same defendant should have been sustained or overruled. If they were well taken, it would not have served any good purpose to amend the petition to meet the objections raised; for the court, having held the petition bad on general demurrer, would necessarily have .dismissed it, though every special demurrer .had been met and its force destroyed by a proper amendment.’ That learned Chief Justice stated the same proposition even more tersely and forcibly in these words in Porter v. Burkett, 65 Tex. 383: ‘What does it. avail a plaintiff to fortify his petition against a special exception, when the court, in effect, holds that if he does so it is still bad on general demurrer? There can be no use in amending a petition in one particular, when, after amendment, it shows upon its face no cause of action.’ ”

In following the case of Bigham Bros. v. Port Arthur Channel & Dock Co., it is said in Brown v. Davis, 178 S. W. 845:

“In his brief, appellant presents as error only the action of the court in sustaining the general demurrer. The fact that he does not complain of the judgment sustaining the special exceptions is no reason for refusing to reverse the judgment, if upon the whole a good cause of action is shown, even though there may be defects in the form of stating it.”

To eliminate the merely defective allegations, in passing on a general demurrer, would be, in effect, for the court to ignore, as to such allegations, its undoubted duty to consider them as though properly pleaded. The allegations of the petition in this case, given every reasonable intendment in their favor, stated a cause of action in behalf of plaintiff in error, and that is decisive of his right to have the general demurrer overruled. Warner v. Bailey, 7 Tex. 519; Erie Telegraph Co. v. Grimes, 32 Tex. 94, 17 S. W. 831; Blum v. Kusenberger, 158 S. W. 780.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause is remanded to the district court.
      <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes


author: PHIDRIPS, C. J.

text:
    HESS & SKINNER ENGINEERING CO. v. TURNEY et al.
    (No. 3047.)
    (Supreme Court of Texas.
    May 22, 1918.)
    1. Appeal and Err'or &wkey;>722(l) — Assignments op Error — Motion por New Trial— “Shall.”
    Under Rev. St. 1911, drt. 1612, as amended by Acts 33d Leg. c. 136, providing that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of the assignments, where a case is tried before the court without a jury, and appellant’s motion for new trial is insufficient as an assignment of error, he is entitled upon his appeal to have considered formal assignments thereafter filed and duly incorporated in the record, and in form sufficient to challenge trial court’s conclusion of law and fact; an exception having been duly reserved to judgment overruling motion for new trial, and the word “shall” as used in the statute not being mandatory.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Shall. I
    2. Appeal and Error <@=^265(1) — Exceptions —Conclusions oe Law and Fact.
    An exception having been duly reserved to judgment overruling motion for new trial, it was unnecessary that exceptions be also taken to conclusions of law and fact to secure their review under due assignments of error.
    3. Statutes <&wkey;205 — Construction—Intent.
    The intent of a law is the essence thereof and is to be gained from the entire context.
    4. Statutes <&wkey;227 — Construction—“May” —“Shall.”
    The words “may” and “shall” are not infrequently used interchangeably, and are to be given that meaning which will best express the legislative intent.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, May.]
    5. Appeal and Error <&wkey;282 — Condition Precedent — Motion por New Trial.
    The trial having been before the court without a jury, appellant is entitled to appeal without filing motion for new trial.
    6. Courts <&wkey;85(3) — Rules Following Language oe Statute — Construction.
    Where Supreme Court in preparing rule 101a (159 S. W. xi) adopted the language of a statute which, had not been construed, the rule will be given the same construction as the statute.
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Suit between the Hess' & Skinner Engineering Company and M. M. Tumey and others. From the judgment rendered, the former appealed to the Court of Civil Appeals, which certified a question to the Supreme Court.
    Question answered.
    A. B. Wilson, of Houston, for Dion Bonding & Surety Co. Page & Jones, of Bastrop, Duncan & Burleson, of Da Grange, Maynard & Maynard, of Bastrop, S. D. Staples, of Smithville, and N. A. Rector, of Austin, for appellees.
   PHIDRIPS, C. J.

Summarized briefly, the question here certified by the Court of Civil Appeals is this:

Where there is a trial before the court without a jury resulting adversely to an appellant who filed a formal motion for a new trial insufficient as an assignment of error because of its generality, is he entitled upon his appeal to have considered formal assignments of error thereafter filed and duly incorporated in the record, and in form sufficient to challenge the trial court’s conclusions of law and fact, an exception having been duly reserved to the judgment overruling the motion for a new trial, but none having been taken to the conclusions of law and fact?

The judgment of the court having been excepted to, it was not necessary that exception be also taken to the conclusions of law and fact to secure their review on appeal under due assignments of error. Voight v. Mackle, 71 Tex. 78, 8 S. W. 623; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839.

We hold it is the appellant’s right to have his assignments of error considered. The question turns upon the proper construction of Article 1612 of the Revised Statutes as amended by the act of the Thirty-Third Reg-islature. Chapter 136, Acts of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612). The amended article reads:

“The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which ho relies, before he takes the transcript of record from the clerk’s office; provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments, and provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of.”

The emergency clause of the act throws distinct- light upon its purpose, and we therefore also set it out, as follows:

“The near approach of the end of the session and the fact that the practice of repeating the assignments contained in the motion for new trial in assignments of error specifying the same grounds increases the expenses of litigation and adds to the labor of the appellate courts and that there is no law permitting the appellant to rely upon the errors assigned in his motion for new trial without filing an assignment of error, creates an emergency requiring that the constitutional rule requiring bills to be read upon three several days,” etc.

Prior to the passage of the act the assignments of error — -a prerequisite of the appeal —were in general, where a motion for a new trial was filed, but a repetition of the motion. The requirement that formal assignments of error be filed in addition to the motion for a new trial thus entailed in most instances double labor for the same purpose at the hands of the appellant’s counsel, besides unnecessary expense in the preparation of the record. The act was passed to relieve against that condition. Its object was to allow an appellant so desiring to make use of the specifications in his motion for a new trial as his assignments of error. Its intention was to lessen both the labor and expense of the appeal. Its design was for the appellant’s benefit and in his interest. This is revealed by the clause in the body of the act providing that the assignments in the motion “need not be repeated by the filing of assignments of error,” and that in the emergency clause declaring as the reasons for the act being put into- immediate effect, the increase in the expense of litigation and addition to the labors of the appellate courts caused by the former practice, and the absence of any law “permitting the appellant to rely upon the errors assigned in his motion for a new trial without filing assignments of error.”

With this true, it is a technical construction of the act to say that its intent was not “to permit” the appellant to rely upon his motion for a new trial as embodying his assignments of error, but to require that he do so in every instance where such a motion is filed. If the act was intended to express a mandatory requirement, why wás the provision that the assignments in the motion shall constitute the assignments of error, followed immediately by a declaration that they “need not be repeated” by the filing of assignments of error? This is language alien to a mandatory' statutory provision. It signifies as clearly as words may that that which is declared as simply unnecessary is not forbidden, but is permissible. In a statute dealing with a method to be pursued for a particular purpose, it can only mean, not that an exclusive mode is provided, but an alternative one.

That the word “shall,” ordinarily a peremptory term, is employed in the clause providing that the assignments in the motion, where filed, “shall constitute the assignments of error,” is not conclusive as disclosing the intent of the act. The intent of a law is the essence of the law, and it is to be gained from, the entire context. The words “may” and “shall” are not infrequently used interchangeably in legislative acts. They are to be given that meaning which will best express the legislative intent. In instances of the employment of the term “shall" where no right or benefit depends upon its imperative use, it may be held as merely directory and as having been used in the sense of “may." Sutherland on Statutory Construction, § 640. This established rule has direct application here. The benefit intended by this act was for the appellant — to provide a mode for the presentation of his assignments of error. It cannot be said that this benefit will accrue to him under the act only by giving the word “shall” a mandatory construction. Construing it in a permissive instead of’ an imperative sense, will still leave the appellant fully, invested with the privilege of presenting his assignments by an adequate method, recognized by the act itself, and having them considered by the appellate courts. His .rights will be as effectually conserved by the former construction as by the latter. They do not depend, therefore, upon an imperative use of the term.

This construction enables the act to accomplish its full purpose and truly- expresses what we think the Legislature intended. We decline to attribute to it a purpose to fasten further technical requirements upon the mode of appeal. It would be highly technical to confine an appellant for his assignments of error to the exact language of his motion for a new trial. This, in our view, is not what the Legislature had in mind. It intended, we think, to permit him to use his motion for that purpose if he desired, but not to deny him the right of filing formal assignments if he preferred to adopt that course.

In cases where a motion for a new trial is required to be filed, errors complained of in the assignments of error which are required to be set forth in the motion for a new trial and are not, there set forth, will be considered as waived under Kule 24 (142 S. W. xii). Our construction of the act does not interfere with the accomplishment of the useful object of the motion for a new trial intended by that rule. In this case, the trial having been before the court without a jury, the appellant was entitled to appeal without filing a motion for a new trial (Craver v. Greer, 107 Tex. 856, 179 S. W. 862), and it was hence unnecessary that his assignments of error be related to his motion.

Rule 101a (159 S. W. xi) adopted by the court June 25, 1913, after the passage of the act here reviewed, is in substantially the language of the act. The construction of the act had not then been determined by the court, and in preparing the rule its language was followed. The same construction is to be given the rule as we here give to the act.
      ign^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    PACE v. STATE.
    (No. 5019.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Criminal Law <&wkey;il44(13) — Appeai^-Pre-SUMPTIONS.
    In the absence from the record of a statement of facts, the court must presume on appeal that there was sufficient evidence to support the verdict of conviction.
    2. CRIMINAL Law <&wkey;1090(16) — Appeal —• RECORD — SUFFICIENCY.
    In the absence of a bill of exceptions containing evidence introduced on accused’s motion for new trial, there is nothing to show an abuse of discretion in overruling such motion.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    J. C. Pace was convicted of larceny, and he appeals.
    Affirmed.
    W. E. Cullum, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The judgment condemns appellant to confinement in the state penitentiary for two years for the offense of theft.

He entered a plea of guilty and sought a suspension of his sentence. We find no statement of facts with the record, and are consequently not advised as to what evidence was introduced, and must presume that there was sufficient to support the verdict.

There are no bills of exception, complaining either of the court’s charge or the rulings of the court in the conduct of the trial.

In his motion for new trial appellant claims that the state’s attorney failed to keep an alleged agreement with counsel for the appellant to refrain from contesting his application for suspended sentence, and the motion for new trial is controverted on this point by the affidavit of the state’s attorney. There is no bill of exception bringing before the court any evidence that may have been introduced on the motion for new trial, in the absence of which there is nothing to show that the court abused its discretion in overruling it. Vernon’s O. C. P. p. 526.

The judgment of the lower court is affirmed.


author: DAVIDSON, P. J.

text:
    JENKINS v. STATE.
    (No. 4999.)
    (Court of Criminal Appeals of Texas.
    April 24, 1918.
    Rehearing Denied May 22, 1918.)
    Rape <&wkey;53(5) — Assault — Sufficiency of Evidence.
    Evidence held to sustain conviction of assault to rape a girl under 15 years of age.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Henry Jenkins' was convicted of assault to rape, and appeals.
    Affirmed.
    W. M. Kennedy and A. H. Voorhies, both of Groesbeck, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape, Ms punishment being assessed at two years’ confinement -in’ the penitentiary.

The only contention made is that the evidence is not sufficient to support the judg•ment. The indictment charged that the assault was made upon Frankie Campbell, a girl under the age of 15 years. Without going into the details as to how defendant met with the prosecutrix and her little sister on the night of the assault, and how they were placed under his protection to be •escorted to the residence of Mrs. Lemmons, etc., it is only our intention to state the immediate facts of the transaction. Prosecu-trix testified:

“After we got past the schoolhouse I said I thought she lived closer than this. Then my sister said she didn’t know where she lived. Then the man took us on clown in a branch and started across a field; he showed us a light and said that is where she lives. He took hold of my arm and I jerked loose; then he got me around the neck and threw me down. I told my sister to go get help, and she went up to Mrs. Brooks. The man told me if I didn’t hush hollowing he would cut my throat with a razor. When the man grabbed my arm he did not say anything right then, but just before that he said, ‘Give me some.’ He threw me down, but I got up. No; he did not tear any of my clothes, but they came undone. While all of this was going on my sister ran up to Mrs. Brooks.”

She then details how on the next morning defendant was arrested, and that she went to the justice of the peace’s office as a witness and identified the defendant. She testified further: ,

“This man told me if I didn’t hush hollowing •that he would cut my throat with his razor, and he said that was nothing; that he had done that way to lots of women. I had on a hat that night, and it came off. It was laying on the ground, and Mrs. Brooks picked it up. The next morning they found my bow ribbon down where the man had me. Ves, sir; this man that left the house with us that night is the same man that ■ assaulted me.”

There are other facts and circumstances of more or less1 weight contradictory of defendant’s theory of the case. Appellant denied practically everything that all the witnesses stated with reference to the matter .and his whereabouts that night, except as to what his mother and sister-testified, and this was an alibi. However, they did admit that the boy started with the girls from their home to find the residence of Mrs. Lemmons. This assault occurred in a few moments. Appellant’s contention was that he left the girls before the assault was made. There is some evidence ■ about bruises, scratches, marks, or stripes, or something of that sort, about the neck, and the nervous excited condition of the girl and incidents of that character unnecessary here to enumerate. The girl made outcry, and was heard by some of the ladies whom the smaller sister went after. We are of the opinion the jury was justified in finding: First, that appellant was the party who assaulted the girl; and, second, that his purpose was to have intercourse with her; and, third, that she was a girl only 14 years of age.

The judgment will be affirmed.

PRENDERGAST, J., absent.

       — ,Unr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SEELY v. STATE.
    (No. 5018.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    (Husband and Wife <&wkey;312 — Abandonment AfteR Seduction and Marriage — Indictment.
    Indictment under Pen. Code 1911, art. 1450, for abandonment after seduction and marriage, an essential element of the offense being marriage after prosecution for seduction has begun in a court of competent jurisdiction, must allege the particular court where the complaint for seduction was filed, alleging the prosecution for seduction was begun in a court of competent jurisdiction is not enough.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Frank Seely was convicted of abandonment after seduction and marriage, and appeals.
    Reversed, with directions.
    L. D. Ratliff, of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.'
   MORROW, J.

The conviction is for abandonment after seduction and marriage, as defined in article 1450, P. C.

A motion to quash the indictment was filed and overruled. It assailed the indictment upon the ground that it failed to designate the court in which, prior to the marriage, the prosecution was begun. The essential elements of the offense are a seduction, a marriage, and an abandonment. The marriage must take place after prosecution has begun in a court of competent jurisdiction. This court, in the case of Kirkendall v. State, 78 Tex. Cr. R. 168, 180 S. W. 676, passing upon the requisites of an indictment under this statute, held it “necessary to allege the particular court wherein the complaint charging seduction was filed.” The indictment charges that the prosecution was begun in a court of “competent jurisdiction.” The indictment should name the court, so that the judge trying the case may be able to determine from the facts alleged whether or not the prosecution was begun in a court of competent jurisdiction. The conclusion reached in the Kirkendall Case, supra, controls this one, and is in accord with the law testing the sufficiency of indictments on motion to quash. Ferguson v. State, 189 S. W. 272; Rudy v. State, 195 S. W. 187, and cases cited.

Other questions raised will not be reviewed, as they are not likely to arise in the event of another trial.

Because of the error of the trial court refusing to quash the indictment, the judgment is reversed, and the prosecution ordered dismissed.
      ©seEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    BOGUS v. STATE.
    (No. 5012.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Criminal Law &wkey;»1092(8), 1144(13) — Appeal — -Bill op Exceptions.
    Evidence heard on motions, being contained in' bill of exceptions filed after the term, cannot be considered; but it must be conclusively presumed it justified the court’s action.
    2. Weapons <&wkey;17(4) — Carrying Pistol — Sufficiency of Evidence.
    Evidence on prosecution for carrying a pistol, held insufficient to show guilt beyond a reasonable doubt.
    Prendergast, J., dissenting in part.
    Appeal from Harrison County Court; W. H. Strength, Judge.
    Manse Bogus was convicted of carrying a pistol, and appeals.
    Reversed and remanded.
    W. T. Caven, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an ' appeal from a conviction for unlawfully carrying a pistol, with a fine of ?100 assessed.

It appears that at the time the complaint and information were filed that the complaint was not signed by the complainant. The jurat of the county attorney before whom the affidavit was made states that it was sworn to hy the complainant; When the case was called both sides announced ready. The assistant county attorney discovered that the complaint had not been signed, and called the court’s attention thereto. Thereupon both sides withdrew their announcement. The appellant then made a motion to quash it because not signed. The assistant county attorney made a motion for leave to amend by having the complainant then sign it. The court heard evidence on the matter, and granted the assistant county attorney’s motion, and overruled that of appellants The bill presenting this question contains the evidence heard by the court at the time, but it was not filed during the term time, hut some two weeks later, hence under. the authorities this evidence cannot be considered, and we must conclusively presume that it justified the court’s action. Reyes v. State, 196 S. W. 533, and cases there cited. However, if we could consider this evidence, it was sufficient, we think, to justify the court’s action. The court followed the statute and decision in Adams v. State, 192 S. W. 1067.

The testimony shows that appellant lived several miles in the country from Marshall. The state’s witness Montgomery swore that he, appellant, and John Williams were at Eannie Johnson’s house in Marshall on the night of December 18th, and that he saw appellant there that night with a- pistol; that appellant accidentally fired the pistol and shot John Williams in the leg; that there was no trouble between them; that he did not see the pistol until it was fired. Appellant testified that about a month before this Eannie Johnson, his cousin, borrowed his pistol to protect herself because he said she claimed somebody had been trying to break -into her house; that he was in Marshall that day, and before returning home went.to her house where said other persons were, as stated by Montgomery; that she told him she had no further need of the pistol, and he could take it home, and that she thereupon went to her wardrobe, got the pistol, handed it to him, and that he took it on home later. He claimed to have stayed in and - about the house for 15 or 20 minutes after he had shot said boy, and did not know that he had shot him, and did not learn of it until perhaps the next day. He claimed that he was standing at the door at the time he was revolving the cylinder of the pistol when it went off accidentally. Montgomery disputed him on these points. He swore he was in about the middle of the room and not at the door when the pistol was fired; .that he did not see Eannie Johnson get the pistol and hand it to him as appellant claimed she had; ■ that she was sitting at the machine for 20 or 25 minutes before the pistol was fired, and that he did not see her leave the machine, nor go to the wardrobe and get the pistol.

The writer thinks the testimony would justify the inference by the jury that appellant brought that pistol to town with him that day, and that Eannie Johnson did not hand it to him as he testified, and is inclined to believe that the evidence was sufficient to sustain the conviction, in view of the verdict of the jury and the charge of the court. However, my associates are of the opinion that the state by the evidence did not show his guilt beyond a reasonable doubt. Although Eannie Johnson was present, summoned by the‘state, she was not introduced as a witness.

The judgment is reversed, and the cause remanded on the ground of the insufficiency of the testimony to establish appellant’s guilt beyond a reasonable doubt.


text:
    BUTLER v. STATE.
    (No. 5013.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Larceny >&wkey;55 — Evidence—Sufficiency.
    Evidence held insufficient to sustain conviction of larce,ny of lard and sugar.
    2. Larceny <&wkey;40(2) — Evidence — Conformity with Indictment.
    Where indictment for larceny alleged ownership in railroad station agent, no conviction could be bad without proof either that he owned it or had possession and control as agent of the railroad.
    Appeal from Hill County Court; R. T. Burns, Judge.
    John Butler was convicted of theft, and he appeals.
    Reversed and remanded.
    J. Webb Stollenwerck, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges appellant with having committed theft of sugar of the value of $9 and lard of the value of $6. being the property of W. N. Baker and taken from his possession without his consent.

Mr. Baker testified he was agent of the Missouri, Kansas & Texas Railway Company at Hillsboro; that about the 1st of November he missed, at the Katy freight office in Hillsboro, six one-gallon cans of Gríseo lard of the value of $9, and one sack of sugar of the value of $9, and that he never gave his consent to any one to take this property. He says he did not know who got the lard, or whether the three cans of lard exhibited to him was that which he missed. It was the same brand of lard, although, he says, there are a great many cans of that brand of lard. It is a standard brand of lard, and handled and shipped by nearly all grocery merchants. He knew of nothing peculiar about the particular cans of lard to identify them, nor did he know who got the sugar. Thompson testified that he was constable, and went to appellant’s house and found in a corner behind a safe three cans of lard, the same as that exhibited — three one-gallon cans of Cris-cc lard — and also found some sugar with the lard. He says he never saw defendant with any lard: never saw him enter the Katy freight office, although he worked for the Hillsboro Transfer Company. He says he did not know whether the lard on exhibition -was that taken from the Katy freight office or not: that defendant was not a merchant, and that it is unusual for people who run transfer wagons to sell lard; and that he recovered two cans of lard from Lem Maddox. Maddox says he got two cans of lard from appellant, for which he paid $3, and that the officer came and took the lard. Some time after this appellant was paid off by the transfer company, and witness told appellant that he (witness) was a hard-working man and needed his money, and that the officer had taken his lard from him, and he further states, after the company paid appellant what was due for back pay, appellant paid him $3. This is the case.

We are of opinion that this evidence is not sufficient to form the basis of the conviction. This may or may not have been the lard taken from the Katy freight office. It was not identified, and was not undertaken to be identified, except by the fact that it w.as a similar brand and size. There was no attempt to introduce any evidence as to the missing sugar, unless it be the statement of the constable that he saw some sugar at appellant’s house; but the kind, character, weight, or quantity is not described or set forth. A similar question under equally as strong a statement of facts as this was decided adversely to the state in the recent case of Kellum v. State, 200 S. W. 843. Judge Morrow cited the authorities and went into the question of identity and necessary proof pretty fully. Eor authorities, see the Kellum Case.

There is another question to which we call attention. The indictment alleges ownership of the property to be in Mr. Baker. The evidence fails to show ownership. He does not testify to this property, or that it was taken from him. He does not testify as agent of the Missouri, Kansas & Texas Railway Company that he had possession and control of the property taken. This should be shown. If as agent of the railroad company this property was in his possession as special owner, that fact should be shown; at least there should be some evidence of the fact of his ownership in some way to meet the allegations in the indictment.

The Judgment is' reversed, and the cause remanded.
      <gs»For other cases see same topic ana KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: ■ DAVIDSON, P. J.

text:
    GARRETT v. STATE.
    (No. 5014.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Criminal Law (&wkey;713 — Argument of Prosecuting Attorney.
    Statements of prosecuting attorney, in argument, that if the jury turn defendant loose-they might as well do away with law books, jail, and the court, and throw away their money paid in taxes for expenses of court, are obnoxious to fair trial.
    2. Criminal Law &wkey;>713 — Argument of Prosecuting Attorney.
    Exercise by defendant of his right to interrogate the jurors during selection with reference to their fairness, if taken, should not be used as an argument against him before the jury as an inducement to bring about a conviction.
    3. Criminal Law <&wkey;721(G) — Argument of Prosecuting Attorney — Defendant’s Failure to Testify.
    It is not a reference to defendant’s failure to testify, for the prosecuting attorney, in argument, to say, if defendant had bought or some one had given him a can of tobacco, he could have had them testify, but he has not brought any witness to prove where he got the tobacco.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Chester Garrett was convicted of theft, and appeals.
    Reversed and remanded.
    Lopp, Roberson & Koenig, of Ft. Worth, for-appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   ■ DAVIDSON, P. J.

Appellant was convicted of theft, bis punishment being assessed at 30 days’ imprisonment in the county jail.

The evidence, briefly, is that appellant was in a confectionery store about the 24th of December? that a clerk saw him take a can of tobacco, put in under his coat, and leave the store. Tie immediately informed the owner, who gave chase. Appellant was caught after running several hundred yards, and at the place where he was caught was found a can of tobacco corresponding in brand and size with that kept in stock at the store where witness was clerking. There was some confusion as to whether there was a missing can of tobacco from the store. There were other parties in and around the store ostensibly shopping. Appellant introduced no testimony and made no statemdnt.

There were several bills of exception reserved to the argument of the assistant county attorney. One bill recites he used the following language:

“Men, if you turn this thief loose (pointing at the defendant), and he is a thief in my opinion, you just as well tear up your law books, tear down the jail, and do away with the court house.”

Another bill recites as follows:

“Gentlemen, you are representing the citizenship of Tarrant county, you are paying taxes to pay for your services as jurors, and you are paying taxes, helping to pay my salary as assistant county attorney; and if you turn this defendant loose you just as well have thrown your money in the fire.”

Appeals like those quoted to a jury have been held obnoxious to fair trial. Appealing to the jury upon matters not in the ease should not be indulged in argument. Many reversals have occurred on account of similar arguments. To prevent reversals arguments characteristic of those quoted should not be indulged.

In addition to those quoted this language was used by the prosecuting officer:

“Young man (pointing to one of the jurors), when Mr. Roberson, the attorney for the defendant, asked you the question that if you had a reasonable doubt as to the guilt of the defendant that you would give him the benefit of that doubt, and say by your verdict not guilty, that it was for the purpose of using that in his argument to the jury to distort and muddle your minds and get you mixed up anyway, or for some trick to get you bothered so that you will hang the jury, and it was for that purpose and that purpose only that he asked you that question. Young man, it is not only to you that I am talking, but to all you other men as well; but I tell you now that was the only purpose that ho had in mind when he asked all of you that identical question.”

This was unwarranted. The accused has a right himself or through his counsel to interrogate the jurors with reference to their fairness if ■ taken upon the jury. This is guaranteed him by the law, both the Constitution and statute, and the exercise of such legal right should not be used as an argument against him before the jury as an inducement to bring about a conviction. 'The court refused a requested instruction to withdraw this from the jury.

Another bill recites this language was used by the prosecuting attorney:

“Gentlemen of the Jury: If the defendant had bought, or some one had given him, a can of tobacco, he could have had them here to have testified in the case; but he has not brought a single witness to prove where he got, the tobacco (pointing at the defendant).”

It is contended this is a reference to the failure of defendant to testify. While we are not altogether satisfied this objection is well taken, yet it was very close to the danger line. While there were in the store at the time other parties than the defendant, it is not shown that they saw or could have seen the defendant take the tobacco. If so, it was not the province of the defendant to bring the parties to show that he did get it. There is no one, so far as the record is concerned, who could have testified where he secured the can of tobacco, except himself, unless it be, as above stated, that he took it from the store, and some of the shoppers in the store might possibly have seen him take it. We are not willing to hold, under the circumstances, that this is a reference to defendant’s failure to testify, yet it was on a very narrow margin. Taking the record and the argument as shown, we are not willing that this judgment should be affirmed, in the face of the argument indulged.

The judgment is reversed, and the cause remanded.
      d&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CARROLL v. STATE.
    (No. 4976.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Ckiminal Law <&wkey;424(l)—Evibence—Tel-egram.
    In prosecution for theft of automobile tires, a telegram from one of the accomplice witnesses to defendant, sent some days after the alleged theft and disposition of the property, was not introducible; defendant not being connected with it in any way, and not shown to have authorized or received it.
    2. Cbiminal Law <&wkey;719(4)—Trial—Argument of County Attorney.
    The county attorney must confine himself in argument within the rule of discussion as to-the facts admitted.
    3. Criminal Law <&wkey;721%(l)—Trial—Argument of County Attorney.
    The failure of the wife of defendant, charged with theft, to testify with reference to a telegram improperly admitted in evidence is not the proper subject of comment in argument by the county attorney.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Ed Carroll was convicted of theft, and he appeals.
    Reversed, and cause remanded.
    J. E. Clarke and J. Webb Stollenwerck, both of Hillsboro, for appellant. E. B. Hendricks, Asst. Átty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of automobile tires and inner tubes, and awarded two years in the penitentiary.

The state’s case was made by the testimony of two accomplices. The defendant relied upon an alibi. It may be very seriously questioned whether or not the accomplices have been corroborated in such manner as the law requires. It is not the purpose, however, of this opinion to pass upon' the sufficiency of the evidence, as the state may present the case in a different attitude before another jury.

A bill of exceptions recites that while the state’s witness Ruby Gibson was testifying she was asked by the state as follows:

“I will ask you if, while he (meaning Ed Gar-roll) was there, or at any time during that day, did he receive a telegram; do you remember about a telegram? A. He did not receive any. Q. Was any telegram received there that day? A. No, sir; not that day. Q. Was there at any time? A. The next day, on Tuesday, there was. Q. Do you know who that telegram was from? A. Prom Arthur Franklin. Q. Do you know whether any one answered that telegram or not? . A. Mrs. Carroll answered it.”

Quite a number of exceptions were reserved. The following bill may be considered in the same connection. It recites that the state was permitted to introduce and read to the jury a telegram identified by the witness Hancock, manager of the Western Union Telegraph Company, at its local office in Hillsboro, Tex., who testified that the same was a copy of a telegram received at the Western Union Telegraph Company’s office from Ft. Worth, Tex., and shows to have been filed at 10 o’clock a. m., August 14th, at the Union Depot, and was received at Hillsboro on the same day at 10:20 a. m., and that it was sent from or signed by A. Franklin and directed to Ed Carroll. Said telegram was in words and figures as follows: Without repeating all of it verbatim, it was dated the 14th of August at Ft. Worth and directed to Ed Carroll at Hillsboro, Tex. The telegram is as follows:

“If you have left let me know, if not let me know where you stay. Ans. Care of T. P. Station. A. Franklin. 10:20 a. m.”

Various objections were urged to the introduction of this telegram. The two bills maj* be considered together. In effect they show that the telegram was sent by Franklin to appellant; that appellant did not receive the telegram. It is also discoverable from the record that the telegram was sent after the supposed alleged theft, which seems to have occurred on the 10th of August. This telegram was not introdueible. Appellant is not connected with it in any way; is not shown to have authorized it, or to have received it. It is a telegram from one of the accomplice witnesses to appellant occurring some days after the alleged theft and disposition of the property. The reason why this telegram was not introdueible seems to be rather obvious. As the matter has been discussed and decided in several cases, and the reasons given for such decision, it is deemed unnecessary to g.o into an extended discussion of the subject. See Chester v. State, 23 Tex. App. 577, 5 S. W. 125; Durham v. State, 45 Tex. Cr. R. 476, 76 S. W. 563; Thompson v. State, 42 Tex. Cr. R. 140, 57 S. W. 805; Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 465.

There is also a bill of exceptions reserved to the argument of the assistant county attorney, commenting upon the failure of the wife of appellant to testify before the jury as to the whereabouts of Ed. Carroll at the time of the reception of the telegram above mentioned. The court withdrew this argument from the jury, or rather instructed them to disregard it. This is not discussed because upon another trial the telegram will not be admitted. Of course, the county attorney will confine himself within the rule of discussion as to the facts admitted. Just how far the prosecution may comment upon the failure of the wife to testify about facts while on the witness stand has been the subject of many decisions and fairly well understood, but none of the cases go far enough to hold that the failure of the wife to testify with- reference to illegitimate testimony would be the subject of comment.

The charge on alibi is not correct. Upon another trial a proper charge will be given.

For the reasons indicated the judgment will be reversed, and the cause remanded.

      z=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. PRENDERGAST, J.

text:
    SHACKELFORD v. STATE.
    (No. 4942.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Burglary <&wkey;2 — Elements—Shooting Into House.
    Under Vernon’s Ann. Pen. Code 1916, art. 1303, defining burglary, and article 1307, defining entry, an indictment charging that defendant “did then and there unlawfully commit the offense of burglary by then and there discharging a firearm, to wit, a gun, into the house occupied and controlled by L., with the intent then and there to injure the said L., the said L., then and there being' in said house,” was insufficient in that it failed to allege that defendant broke or entered the house with a view of committing a felony.
    2. Burglary <&wkey;28(l) — By Discharging Firearm — Variance.
    To constitute offense under indictment charging burglary under Vernon’s Ann. Pen. Code 1916, art. 1307, by discharging a firearm into a nouse with intent to injure S., “then and there being in said house,” it must be shown that S. was in the house when the shot was fired.
    Prendergast, J., dissenting.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    George Shackelford was convicted of bur glary, and appeals.
    Reversed and remanded.

      John T. Duncan, of La Grange, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Omitting formal parts, the indictment charged as follows:

“Did then and there unlawfully commit the offense of burglary by then and there discharging a firearm, to wit, a gun, into the house occupied and controlled by Lizzie Shackelford, with the intent then and there to injure the said Lizzie Shackelford, the said Lizzie Shack-elford then and there being in said house, against the peace and dignity of the state.”

Motion was made to quash this indictment. It will he noticed that there is no direct allegation that appellant broke or entered the house with a view of committing any offense. The statute (article 1303, Vernon’s Grim. Stats.) defining the offense of burglary says that this offense is constituted by entering a house by force, threats, or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft. The Code (article 1304) also thus defines burglary:

“He is also guilty of burglary who, with intent to commit a felony or theft by breaking, enters a house in the daytime.”

So of burglary of a private residence. This must be entered by force, threats, or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining concealed therein until night, with the intent, in either case, of committing a felony, or the crime of theft. However a burglary may be committed, it must be done in this case by breaking, and the entry must be accomplished for the purpose of committing a felony. If these matters are not charged in the indictment, the offense of burglary is not averred. The manner. of entry is one thing, and the intent to commit a felony or the crime of theft is a different proposition, but the two must concur in order to constitute the crime of burglary. This has been the rule laid down in the decisions, unless it be the Railey Case, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576; but an inspection of that indictment as found in the original record in that case will bear the construction that burglary must be properly charged as to the breaking. That case diverged from the decisions theretofore rendered, laying down the rule that the intent need not necessarily be with the intent to commit a felony or theft; that, if the breaking was intended to injure by shooting into a house, this would constitute burglary. The writer dissented in that case, and still is of the opinion that the majority of the court in so holding was not in consonance with the legislative will as shown by statutory enactments. In the Railey Case, supra, the charging part of the indictment was that appellant, unlawfully, fraudulently, burglariously, and willfully, in the daytime, by force and break: ing, committed the offense of burglary, by then and there discharging firearms, to wit, a gun, into the dwelling house of Charles Schmidt, with the intent to injure the said Charles Schmidt, who was then and there in said house, etc. A serious mistake, to the mind of the writer, in the majority opinion in the Railey Case, is that that opinion transfers the definition of entry into the definition of burglary, and makes it the criterion of intent.. The Legislature, it occurs to the writer, did not so intend, and did not so enact. The entry and intent are _different elements of the offense. Article 1307, Branch’s Ann. P. C.. p. 1277, defines and relates only to what it takes to constitute “entry.” It is there provided that the entry is not confined to the entrance of the whole body; it may consist of the entry of any part for the purpose of committing a felony; or it may be constituted by the discharge of firearms or other deadly missile into the house, with intent to injure any person therein; or it may be constituted by the introduction of any instrument for the purpose of taking from the house any personal property, although no part of 'the body of the offender should be introduced.

It will be noticed that the Legislature was simply defining what it took to constitute an entry into the house as a part of the definition of burglary. It was not referring to breaking, or to the definition of burglary, except that of entry. Illustrative, the indictment would not be held valid if it simply charged that he burglariously entered the house by the entrance of any part of his body. It would have to go further and allege a breaking and that it was done for the purpose of committing a. felony or the crime of theft. So with the discharge of firearms with intent to injure. The Legislature was simply defining the term “entry” to make such unlawful when the firing was done to injure. It was intended to prevent a charge of burglary, and not to include a burglary, unless the shooting by firearms into the house was intended to injure. This was but a means of entry. It was not a burglary. If the shooting of firearms into a house with intent to injure somebody was consummated, the Legislature enacted that this should be unlawful entry. It did not thereby intend to relieve the-pleader of properly pleading the charge of burglary of which entry was but a part of the definition of the offense. The indictment would have to go further and allege the breaking and prove such entry was done for the purpose of committing a felony. This has been understood to be the^ law, unless it be changed by virtue of the-majority decision in the Railey Case, supra. So far as the authorities that have been called to the attention of the writer, there are but two cases where a proper allegation was not made with reference to the intent in the breaking, the majority opinion in the Railey Case, supra, and Hammons v. State, 29 Tex. App. 445, 16 S. W. 99. The Hammons’ Case was reversed under the unbroken line of authorities, as the writer understands, and the Railey Case, in order to sustain the majority opinion, overruled the Hammons’ Case. The writer thinks that opinion clearly error.

The indictment in the instant case does not undertake to allege a burglarious entry except by conclusion generally, stating that he shot into the house with intent to injure. The term “burglariously,” as we understand in this indictment, is just a general conclusion, and does not undertake to give any definition of burglary. There must be a burglary charged, a constituent element of which is entry; then there must, in addition, be the purpose and intent of committing a felony, or the crime of theft. Erom no viewpoint can this indictment, in the mind of the writer, be upheld.

There are other questions in the case. The court instructed the jury that if appellant did discharge firearms, to wit, a gun, into the house occupied and controlled by Lizzie Shackelford, with the intent then and there, on the part of the defendant, to injure the said- lizzie Shackelford, and that the said Lizzie Shackelford was .then and there in said house, they will find him guilty, and if they did not so -believe from the evidence, beyond a reasonable doubt, they would acquit. He also charged the jury, if they believed from all the evidence that defendant’s gun was accidentally discharged, and that after such accidenta! discharge of the gun that the defendant did not shoot into the house occupied and controlled by Lizzie Shackelford with the intent then and there to injure her, they should acquit. Various exceptions were urged to the court’s charge, and special requested instructions refused. These are all properly presented.

The evidence shows that Lizzie Shackelford was in a tent, and appellant was at her residence; that he had called to see his child, Lizzie Shackelford and defendant having been divorced. By the terms of the divorce he was entitled to see the child and be at the place where the alleged shooting occurred. When the first shot was fired, which appellant says was accidental, and gives various reasons why it was so and facts which seem not to have been controverted, Lizzie Shackelford left the tent in the direction of her residence, which was five or six steps away, and appellant fired another shot. This shot struck right at the edge of the roof, going through the plank and entering the rafter just immediately on the inside of the house. Lizzie Shackelford was not then in the house into which this shot was fired. She was going in that direction. Her daughter testified she was outside of the house. Lizzie Shackelford herself testified that she was just about to reach the entrance of the house, but was not on the inside. Appellant insists this view of the case should have been submitted, and requested instructions, as well as reserved exceptions to the court’s charge in this respect. We are of opinion that appellant is correct in this contention. In order to have constituted this shooting at her under the terms of the indictment, he would have had to fire into the house for the purpose of injuring Lizzie Shackelford. Under the state’s case it was a serious question whether he shot at her to injure her at all, as the shot went way above her, and he is shown to have been a hunter and a good shot. But in any event, in order to constitute this offense under the indictment, he would have had to shoot in the house for the purpose of injuring Lizzie Shackelford, and it was necessary that she be in the house at the time that he fired the shot. If he was shooting at her on the outside, and the shot entered the house, it would not constitute the offense charged in the indictment. The state’s case proceeded upon the theory, under the evidence, that he was shooting at her as she was going towards the house and the bullet missed and struck the house. This could not constitute a shooting in the house for the purpose of injuring her. In other words, to constitute this offense as charged the shot would have had to be fired into the house for the purpose of injuring her, she being in the house. This offense is not constituted by shooting at, but missing, her, and striking the house. Under this view of the case we are of opinion that the court should have submitted the special requested instructions to the jury to the effect that, unless the shooting in the house was for the purpose of injuring her, and that at that time she was in the house, they would not find him guilty, and if he was shooting at her and incidentally struck the house, this would not constitute an offense under the allegations in the indictment.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J.

I am thoroughly convinced that the case of Railey v. State, 58 Tex. Cr. R. 1, 121 S. W. 1120, 125 S. W. 576, was correctly decided, and that it is the law. I do not concur in the criticism of that opinion by the opinion herein. I adhere to the decision in said Railey Case.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes