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

text:
    MELTON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1. Criminal Law (§ 507) — Accomplices — Rape Accomplished by Eratjd.
    In a prosecution for rape accomplished by fraud, the prosecutrix could not be an accomplice of the defendant, and it was proper to refuse a charge submitting that question to- the jury.
    LEd. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. ¾ 507.]
    2. Criminal Law (§ 631) — Trial—Service oe Jtjry List — Omission of Juror’s Name.
    Where the name of a juror is omitted from the list served on the defendant, it is not necessary to quash the panel, but the juror should be excused so that the defendant will not be required to pass upon him.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1379, 1437-1446; Dec. Dig. § 631.]
    3. Rape (§ 59)— Instruction — Elements of Offense — Rape Accomplished by If baud .
    In a prosecution for rape accomplished by fraud, an instruction which followed improved charges defining fraud under the rape statute and required the jury to believe that the defendant had obtained intercourse by the perpetration of such fraud, was proper.
    [Ed. Note. — Fór other cases, see Rape, Cent. Dig. §§ 88-100; Dec. Dig. § 59.]
    4. Criminal Law (§ 1090) — Appeal—Bill of Exceptions — Necessity.
    Complaints, in a motion for a new trial in a criminal case, which concern the introduction and exclusion of testimony, cannot be considered on appeal, where there is no bill of exceptions on the subject.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825;-2827, 2927, 2928, 2948, 3204; Dec. Dig. & 1090.]
    On Motion for Rehearing.
    5. Criminal Law (§ 829) — Instructions— Venue.
    In a prosecution for rape, where the evidence showed intercourse in a county other than that alleged in the indictment, and the charge of the court in each paragraph required the jury to believe beyond reasonable doubt that the crime was committed in the county alleged before they could convict the defendant, it was not error to refuse a specific charge that they must find that the act was committed in the county alleged and not in the other county, áinee the proof of venue is an essential part of the prosecution, and not an affirmative defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    6. Criminal Law (§ 770) — Instructions— Necessity — Defense.
    A defendant in a criminal case is entitled to a distinct and affirmative, and not merely an implied or negative, charge as to his special defense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1806; Dee. Dig. | 770.]
    7. Criminal Law (§ 564) — Burden of Proof —Extent—Venue.
    The venue of a crime need not be proved by the prosecution beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.]
    8.Criminal Law (§ 822) — Construction of Charge as a Whole.
    When complaint is made of any portion of a charge in a criminal case, the whole charge must be construed together.
    LEU. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    9. Criminal Law ⅛ 829) — Instructions— Repetition.
    When a case has once been properly submitted by the court in the general charge, it is unnecessary and improper to give a special charge on the same subject.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    10. Criminal Law (§ 552) — Circumstantial Evidence — Sufficiency.
    In a prosecution for crime, any fact can be established by circumstantial evidence as completely as by positive evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1257, 1259-1262; Dec. Dig. § 552.]
    11. Criminal Law (§ 553) — Province of Jury — Credibility of Witnesses.
    The jury are the sole judges of the credibility of mtnesses, and may, in view of the facts and circumstances shown by the evidence, 'believe a part of the testimony of a witness and disbelieve the rest.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1252; Dec. Dig. § 553.]
    12. Criminal Law (§ 549) — Province of Jury — Weighing Evidence — General Knowledge.
    While the jury may not consider any particular fact known by them unless they testify to it at the trial, they may judge the weight of the evidence by their own general knowledge, as ordinary men, of the subject of the inquiry.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1249, 1251; Dec. Digs., § 549.]
    13. Criminal Law (& 564) — Venue — Evidence.
    In a prosecution for rape accomplished by, means of a pretended marriage, evidence held sufficient to warrant the jury in finding that the act was committed in the county alleged in the indictment, on the night of the pretended marriage, notwithstanding the denial of the prose-cutrix that she had intercourse with the defendant on that night.
    [Ed. Note. — Eor other cases, see Criminal Law^Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 584.]
    14. Marriage (§ 13) — Essentials—“C’om-mon-Law Marriage.”
    In order to constitute a valid, “common-law marriage” sufficient to support a prosecution for bigamy, there must be not only the assent of the parties to the marriage, but also a continuous living together as husband and wife.
    [Ed. Note. — Eor other cases, see Marriage, Cent. Dig. ⅜ 4; Dec. Dig. § 13.

    Eor other definitions, see Words and Phrases, vol. 2, p. 1332.]
    15. Criminal Law (§ 29) — Different Offenses in the Same Transactions — Election as to Prosecution.
    It is no defense to a prosecution for rape accomplished by a pretended marriage, where the man had a wife living and not divorced, that the marriage would have been a valid, common-law marriage except for his previous marriage, and that therefore the offense was bigamy, since the state, and not the defendant, has the right to elect, where the act of the defendant constitutes more than one offense, upon -which charge the defendant shall be prosecuted.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 29.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Bird Melton was convicted of the crime of rape, and he appeals.
    Affirmed.
    J. It. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDBRGAST, J.

By a proper count which alone was submitted to the jury, appellant was indicted for rape, alleged to have been committed on Annie Clarkson in East-land county, Tex., on October 9, 1911, by force, threat, and fraud. He was convicted, and his penalty fixed at five years’ confinement in the penitentiary, the lowest prescribed by law.

Annie Clarkson was a girl about 15 years old at the time this offense is charged to have been committed and lived with her parents. Her parents were tenant farmers, living in a small house on a farm in Palo, Pinto county. Not a great while before this he had lived for several years in Eastland county, and prior to that in other counties in the state. Appellant was a young man who boarded with her family for a few months just prior to the alleged commission of this offense, and while with the family he courted and became engaged to be married to Annie some three months prior to this offense. He had formerly, at some time, been married to another woman. Annie and her family knew this. He told Annie, however, that he had been divorced from that wife. A few days before the time of this offense he and Annie, together with her brother and sister just older than she, went in a wagon from her father’s in Palo Pinto county to her uncle’s, living in Eastland county. Appellant’s parents also lived in Eastland county. They reached her uncle’s in Eastland county Sunday morning about an hour by sun; it was arranged between Annie and appellant that they would be married in Eastland county at or near her old home, where she and her parents had formerly lived. After they reached her uncle’s, appellant left them, and claimed he went to his father’s. When he returned to Annie at her uncle’s, he reached her about an hour by sun Monday evening. They then started to return to her parents, the same said four persons, and went by or to the place in Eastland county where she and her parents had formerly lived. Appellant claimed and told her he had procured a license to marry her at Eastland, and had arranged to have a preacher to meet them near her old home and to perform the marriage ceremony. When they reached a point near her former home, appellant had the wagon stopped, got out, and went back out of sight of the others for some distance, and was gone several minutes ; the witnesses differing as to time from 10 to 30 minutes. He then returned to the wagon, told Annie to get out and go with him, which she did, leaving her brother and sister. Appellant took her back some hundred yards out of sight of her brother and sister, met a person whom he claimed was a preacher, and who performed the ceremony and pronounced them man and wife. This was at night, a moonlight night. They then returned to the wagon, told her brother and sister that they had just been married, and they drove on a few miles, when they stopped and stayed all night. They made up a fire on the ground, the brother slept on the wagon seat at the fire, his unmarried sister in their wagon in which they were traveling, and appellant and Annie went into the field of someone and occupied a wagon that was in that field, in which there was some seed cotton. They remained there all night.

The record shows clearly that Annie was an ignorant country girl, and her testimony indicates that she. was not at all bright or smart. Appellant did not testify. Annie testified and showed that she believed he had procured a license, as he told her he had, and that they had been legally and properly married by said person on that night. She testified that while they stayed alone together in the wagon that night he kissed her and fondled her person and had his hands on her, but that he did not that night have sexual intercourse with her; that the next day they continued their journey, reaching her parent’s, where they announced their marriage, and that they occupied a bed and room at her parents’ that night, and for a short time afterwards, and that that night he did have sexual intercourse with her; that they stayed with her parents only for a short time, and then removed elsewhere in Palo Pinto county, and lived as husband and wife for several months, she fully believing they were' lawfully husband and wife; that she would not have permitted appellant to have had intercourse with her. at any time if she had not believed that she was properly married to him. It was shown that appellant had procured no license at Eastland to marry her; that his wife or former wife was still living; that he denied to his brothers that he was married to Annie.

Practically the sole question of any moment in this case is whether or not the evidence was sufficient to show that appellant had sexual intercourse with Annie in the wagon where they remained the first night after he married her in Eastland county. The court charged on circumstantial evidence. We take it that because of the ignorance and inexperience of said witness Annie she would cross herself In her own testimony ; but the jury who saw and heard her, and who saw and heard the manner of her examination and cross-examination, were the judges exclusively of her credibility and the weight of her evidence. The whole record shows that appellant, who was a married man, deceived this girl and her whole family, claiming that he had been divorced from'his wife, or previous wife. He was not living with -her at that time, and had not been for several months before. As a matter of fact, he was still married to that previous wife. He courted Annie and became engaged to be married to her, and evidently deceived her and had this mock marriage by an assumed preacher for the sole purpose of inducing this girl to have intercourse with him, and he thereby accomplished his purpose. It is apparent from the record that he had failed otherwise to have sexual intercourse with her. While the girl denied that he had sexual intercourse with her that first night, the court having properly charged on circumstantial evidence, it was a question for the jury whether or not, notwithstanding her denial, he had sexual intercourse with her that night. The jury was composed of 12 fair and impartial jurors, doubtless of different ages and businesses and at different locations in the county. They saw and heard all the witnesses. Appellant was, of course, before them during the whole trial. They reached the conclusion that he had sexual intercourse with this girl that first night. Under the circumstances it would stagger human credulity, and would be the reverse of what every man knows to be human nature, if under the circumstances he did not have sexual intercourse with her that night. In our opinion the evidence was amply sufficient to justify the jury to believe and find, as they did, that he did have sexual intercourse with her that night. Where they stayed that night was clearly shown to be in Eastland county. Word v. State, 12 Tex. App. 183; Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322.

Any fact which can be established by direct, can also be established by circumstantial, evidence. The circumstances proven in this case, together with the knowledge of human nature, is amply sufficient to authorize the jury to find that appellant had sexual intercourse with said Annie Clarkson, notwithstanding she testified he did not on said first night. It would, at least, be no more than one testifying he did not, while another, with equal, or like opportunity, testified he did. She testified he did not. The circumstances unerringly testified, or authorized the jury to find, he did.

Even if we should not be correct in this, then our venue statute as to this offense is to this effect: Prosecutions can be carried on, first, in the county where committed; second, in any county of the judicial district; and third, in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. The evidence, without doubt and overwhelmingly, established appellant had sexual intercourse with said girl in Palo Pinto county, if not, or in addition, to having done so in Eastland county, or without reference to Eastland county. There being nothing to the contrary on this question of venue, it must be determined that Judge Blanton was the judge nearest the county seat of Palo Pinto county; and, Eastland county being in his district and adjoining Palo Pinto, the case was properly tried by him in Eastland county. So that in either event the venue was in Eastland county. Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780.

The court submitted a full, fair, and apt charge on every issue in the case. His charge follows and is substantially what was given in Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 904, and Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 19120, 126, which were expressly approved by this court. In addition the court gave appellant’s special charge to the effect-: “Unless you find from the evidence that the defendant did not marry Annie Clarkson, you will acquit him.” The court in his charge expressly required the jury to believe beyond a reasonable doubt that the appellant had sexual intercourse with said Annie in Eastland county, Tex., and that his private male organ penetrated the private female organ of said Annie, before they could convict him. Hence the court did not err in refusing to give appellant’s special requested charges on these subjects, because the court had clearly embraced them all in his main charge.

The evidence did not show that said Annie was an accomplice. If appellant raped her by fraud, as alleged and as required to be affirmatively found by the court before they could convict him, she was not and could not have been an accomplice; hence the court did not err in refusing appellant’s charge submitting to the jury whether or not she was an accomplice.

It appears that in summoning the special veniremen the sheriff, among others, summoned and so returned one J. B. Eenley. In proper time the clerk issued the proper process, requiring the sheriff to serve appellant with a copy of the veniremen summoned, and included said Eenley’s name. By some mistake the copy that was served on appellant omitted Eenley’s name. For this reason appellant made a motion to quash the whole venire. The court overruled this motion, and in the explanation to appellant’s bill stated that on July 8, 1912, the case was set down for trial for July 19, 1912, at 8:30 o’clock a. m.; that the special venire was served on appellant on July 17, 1912, but that it omitted said Fenley’s name from the copy so served; that when the case was called, at the time set, appellant, the district attorney, witnesses, and veniremen were all present, hut appellant’s counsel was absent; that after waiting a reasonable time for him, the court proceeded to impanel the venire as to matters touching their qualification. At this juncture appellant’s counsel appeared and verbally moved the court to quash the venire for the reason that said Fenley’s name had been left off of the copy served on appellant; that the court thereupon excused said Fenley, and did not require defendant to pass upon him; that a jury was secured before defendant exhausted all of his challenges. This bill shows no error by the court. Judge White, in his Annotated C. O. O. § 721, says: “Mere discrepancies in some of the names as stated in the copy and the original will be immaterial, where it appears that the parties named did not serve on the trial, and defendant did not exhaust his peremptory challenges. Bowen v. State, 3 Tex. App. 617. If there is a variance between the name set out in the copy and the original, the proper practice is to stand such venireman aside. Mitchell v. State, 36 Tex. Cr. R. 278 [33 S. W. 367, 36 S. W. 456]; Hudson v. State, 28 Tex. App. 323 [13 S. W. 388]; Thompson v. State, 19 Tex. App. 594; Swofford v. State, 3 Tex. App. 77; Bowen v. State, 3 Tex. App. 617.” The court in this instance pursued the proper practice; appellant was not required to pass on this juror; he got a complete jury out of the panel that was served on him without exhausting his challenges.

As stated above, the charge of the court followed substantially, if not literally, the charges in said Lee and Wilkerson Cases, supra, in the definition of fraud under our rape statute, and required the jury to believe, before they could convict him, that he had obtained sexual intercourse with this girl by the practice and perpetration of said fraud. So that the criticism of appellant of the court’s charge on this subject is without any merit, and his complaint of the charge not requiring the jury to believe all the necessary requisites, which were held sufficient in said 'cases, is also without merit.

Appellant has several complaints in his motion for new trial about the introduction and exclusion of testimony, but there is no bill on the subject. Hence such complaints cannot be reviewed by this court.

We have carefully considered all of appellant’s complaints, and in our opinion none of them show any reversible error. Wherefore this case will be affirmed.

DAVIDSON, P. J.

(dissenting). I have been unable to agree with my Brethren in affirming this case. I deem it unnecessary to go into anything like a detailed statement of the evidence. Prosecutrix testified that she and appellant had known each other for a couple of years, and had been engaged for some months, and were finally married in Eastland county, while in that county on a visit to her relatives. She further testified that she was aware of the fact that appellant had been previously married, but had been informed by him, and believed it to be true, that he had obtained a divorce from his wife some months prior to her marriage with him. It would seem, however, from the testimony developed on the trial, appellant had not been divorced from his former wife, but that she was still living. Believing that there was no legal obstacle to their marriage in Eastland county prosecutrix married appellant. After the marriage they lived together for about nine months, assuming all the duties and obligations of husband and wife, so holding themselves out to the world. The day following their marriage they returned to her father’s residence in Palo Pinto county, and remained for some time and until appellant secured a home of his own, to which they then moved. This relation continued between them publicly and everywhere they were until this prosecution began. Something like a year, or nearly so, after the marriage appellant was indicted and afterwards convicted for having committed rape on the prosecutrix by fraud; that is, inducing her to believe that they were married, thereby obtaining sexual favors. The marriage, as detailed by the prosecutrix, occurred as follows: A day or two before their marriage they left her father’s residence; that is, she and appellant, accompanied by her brother and sister, going to Eastland county, where they visited relatives of the prosecutrix. The family knew of her engagement to be married to the defendant about four months before the ceremony occurred. Quoting her language: “This ceremony took place in Eastland county, Tex. After this ceremony we went right straight on the way home. We went back to the wagon. Q. Did you and the defendant, either of you, tell your brother and sister what had taken place? A. Ves, sir: We went that night up about four or five miles from Ranger and camped. I slept that night with the defendant, Bird Melton. I did not have sexual intercourse with him that night. The next morning we got in the wagon and started on home and went on home that night, or the next day, to my mother’s and father’s house. When we got home my mother and father were present. Me and the defendant informed my father and mother of the ceremony that had taken place. We told them about it — my sister did — just as soon as we got there. I continued to live with him there at my father’s and mother’s as husband and wife. I lived with him about nine months. * * * We lived as husband and wife nine months. We never lived at my father’^ and mother’s but a week after we were married and moved out in the country. I would not have submitted to Ms sexual embrace and have had sexual intercourse with him unless I had thought I was married to him. I would not have submitted to him under any circumstances or conditions unless I thought I was his wife. If I had known I was not married I would not have had intercourse with him. We remained together' as husband and wife about nine months.” Speaking of the night they were married she says: “We did not sleep in our own wagon. We didn’t have intercourse that night. He didn’t try to have intercourse with me that night. We didn’t have intercourse until we went over there and got over there to Graford.” This was in Palo Pinto county. She further testified she knew he had been married, but had been informed and believed he had obtained a divorce from his wife, and therefore she married him. My Brethren call this “a mock marriage,” and the intercourse with prosecutrix they term “rape by fraud.” I am persuaded that under the law and the decisions this could by no sort of legal construction be rape. Appellant may have been guilty of bigamy, but not rape. If appellant had not been previously married at the time, and had a then living wife at the time he married prosecu-trix in this case, under all the decisions, as I understand them, the marriage with pros-ecutrix would have been legal, unless we find the exception in Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 904, and Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 1912C, 126. If the former marriage had not existed, I do not believe it would have been questionable, under the facts as detailed in this record, that the marriage to prosecutrix would have been held a legal marriage. Such are all the decisions except those above enumerated, and even under the Lee Case this marriage would be valid but for the former marriage. Por a full discussion of this matter, see the recent opinion by Chief Justice Brown in the case of Grigsby v. Reib, 153 S. W. 1124. Judge Brown, writing for the Supreme Court, in a remarkably able and exhaustive opinion, reviewed, the whole question, and his conclusion, it occurs to me, is unanswerable. Under that opinion but for appellant’s previous marriage the marriage to prosecutrix here would have been unquestionably legal. The parties went through a ceremony, as testified by prosecutrix, in which they agreed to live as husband and wife. This was about 7 or 8 o’clock in the evening. That night they slept together, and they continued sleeping together, cohabiting together, holding themselves as and assuming all the relations of husband and wife from that time until this prosecution was instituted. This was done in the most public manner possible. They were recognized and so treated among and by relatives and friends. In cases of bigamy it has always been held in this state what is known as a “common-law marriage” can be shown, and is valid. Burks v. State, 50 Tex. Cr. R. 47, 94 S. W. 1040; Hearne v. State, 50 Tex. Cr. R. 432, 97 S. W. 1050; Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56; Waldrop v. State, 41 Tex. Cr. R. 199, 53 S. W. 130; Simon v. State, 31 Tex. Cr. R. 202, 20 S. W. 399, 716, 37 Am. St. Rep. 802; Knight v. State, 55 Tex. Cr. R. 243, 116 S. W. 56; Dumas v. State, 14 Tex. App. 472, 46 Am. Rep. 241. See, Branch’s Crim. Law, § 137, for general collation of authorities. In Burks v. State, supra, it was held that, the first marriage being proved, the fact that defendant married again while the first wife was living, and the parties lived together as husband and wife until she discovered the fraud, evidence is sufficient though no license was issued for the second marriage. In the same opinion it was held “it is not a prerequisite to the validity of a marriage that a license issue.” Mr. Branch aptly states one of the rules this way: “All that can be required in any case involving marriage is proof of a valid marriage, for the violation of which the parties thereto may be punished. Whatever be the form of the ceremony, or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage, binding on the parties, which would subject them to legal penalties for a disregard of its obligations” — citing some of the cases already cited. Judge Brown in Grigsby v. Reib, supra, not only recognizes the above propositions, but accentuates them in a manner that in the judgment of the writer is not debatable but unanswerable. Reiterating my statement that but for the fact that appellant had been previously married this marriage would not have been questioned and ought not to be questioned in any court, that being true, appellant was not guilty of rape by fraud, or of any sort of rape. He was guilty of bigamy. The cases of Lee v. State, and Wilkerson v. State, supra, and the majority opinion in this case are out of harmony with all the decisions in Texas, and with nearly every decision that has been written in the jurisprudence of this country. For a full review of these matters, see Judge Brown’s able opinion. Marriage is not a theory, but a condition, while it is resultant to some extent from contract agreement, yet it is a status resultant from certain facts living together as husband and wife, etc.

I feel impelled to say this much in regard to one phase of the case, inasmuch as my Brethren hold this “a mock marriage,” in view of the testimony above detailed, which, in my judgment, makes it a legal marriage but for the prior marriage, and but for the prior marriage this would have been a legal one. This marriage is bigamous.

There Is another question with which I cannot agree with my Brethren. X do not care to repeat the testimony that has already been mentioned. If the state succeeded in proving anything in this case, it was that defendant did not have intercourse with the prosecutrix in Eastland county. They spent the first night after their marriage in that county. The state proved beyond any question that the next night they were in Palo Pinto county, and that in that county he did have sexual intercourse with the pros-ecutrix. The court below submitted the case on the theory, and the indictment so charged, that the intercourse occurred in East-land county. This matter is properly brought before the court both on the testimony and the exceptions to the charge. My Brethren hold that, although the state does not prove an act of intercourse in Eastland county, and although prosecutrix testifies positively it did not occur in Eastland county, and that appellant did not have intercourse with her the first night, yet they say the evidence is sufficient to justify the jury in believing they had intercourse in the face of such failure to prove it and a flat denial by positive testimony that it occurred. In other words, they hold the jury was correct in not only disbelieving the state’s positive testimony, but they were justified in presuming, in the face of a flat denial of the fact, that intercourse did occur. The theory upon which my Brethren affirm is that the idea that defendant slept with the girl that night and did not have intercourse was preposterous and not in accordance with human experience. The law does not authorize a conviction for rape because it is human experience that men have intercourse with women. The law in rape cases requires proof of the fact that intercourse occurred — that is, that there was penetration of the woman — and this sufficiently strong to overcome presumption of innocence and reasonable doubt, but here we have a conviction, not only without testimony, but in the face of positive evidence by the prosecutrix that appellant did not have intercourse with her. The presumption of innocence should obtain, and not the presumption of guilt. In the face of the testimony my Brethren affirm this case upon the theory, and can be justified only upon the theory, that the defendant is presumed guilty, and not only so, but in the face of the facts which positively show that intercourse did not occur, and this theory is made conclusive of guilt by some idea of human experience that newly married people always have intercourse on their wedding night. I am persuaded that the prosecutrix had more intimate knowledge of the question and the fact as to whether appellant had intercourse with her or not than did the jury or does the majority of this court. My Brethren and the jury were not present and know nothing of the circumstances except as shown by this record, supplemented by what they claim to be their knowledge of experience of human nature under such circumstances. I cannot go with my Brethren in holding that we will presume the defendant guilty on the absence of facts, much less by presuming his guilt only from human experience in the face of facts directly to the contrary, and by the only party testifying who knew the facts as they occurred, to wit, the prosecutrix. The citizenship of Texas do not hold their lives and liberty on the doctrine laid down by the majority in this ease; at least, it was never intended so by the framers of the Constitution and the laws enacted by the Legislature, and it has never been before so declared or intimated. The state must not only introduce evidence to prove guilt, but that evidence must produce proof sufficiently cogent, truthful, and strong to overcome the presumption of innocence and reasonable doubt. The reasonable doubt is not only disregarded and overruled and destroyed in this case, but in its place is substituted the presumption of guilt, and this guilt, too, denied by all the facts. I do not care to follow this any further, except to add that the statute has not declared that sleeping with a woman is rape. There must be “penetration,” else there is no rape, and this must be proved.

There is another proposition in the case that I am not prepared now to discuss as intelligently as I should like to do, and may do at some other time. The evidence raises the question as to whether Eastland county had jurisdiction of appellant by reason of the acts of intercourse in Palo Pinto county; it being an adjoining county to Eastland. It is shown that Palo Pinto county is in a different judicial district from that in which is situated Eastland county, and the district courts of the two districts are presided over by different judges. The point is made and urged that, inasmuch as the indictment alleges jurisdiction in Eastland county, the act of intercourse had in Palo Pinto county could not be tried in Eastland county; that if the statute be construed so as to give Eastland county jurisdiction of the act of intercourse in Palo Pinto county, it must be alleged in the indictment that the act of intercourse occurred in Palo Pinto county. The Mischer Case, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780, seems to bear that construction. The indictment in that ease was found in Guadalupe county, but alleged the rape was committed in Colorado county, which the facts sustained. As the matter is now presented to my mind, without time to investigate further, I am inclined to believe the position taken by counsel for appellant is the correct legal one. As my Brethren are affirming the case, I desire to make the above statement so that at some convenient time I shall give the matter close investigation and careful thought.

For the reasons indicated, I most earnestly dissent.

On Motion for Rehearing.

PRENDERGAST, J.

Appellant presents and discusses several propositions in his motion for rehearing.

There are hut two questions which we deem necessary to further discuss. The first is the refusal of the court below to submit his special charge on the question of venue, which we will hereinafter state. The second is the sufficiency of the evidence to authorize the conviction.

In the original opinion we briefly stated the question of venue in rape cases based on article 254, O. 0. P., which was an act of the Legislature at the first special session of 1897 (page 16), and we cited in that connection the ease of Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780. This question in the original opinion was not discussed. It was unnecessary to the decision of this ease; and, being so, we now withdraw all that part of the original opinion, and do not discuss or decide that point on said statute.

Recurring to appellant’s question first above stated. His requested charge which was refused was: “The indictment in this case alleges that the defendant raped the prosecutrix, Annie Clarkson, in Eastland county, and before the defendant can be legally convicted in this case it must be shown that the defendant did rape the said prosecutrix, Annie Clarkson, and that the said offense occurred in Eastland county, and it is not sufficient to prove a rape in Palo Pinto county.” Appellant cites that line of decisions which correctly hold that a defendant is entitled to a distinct and affirmative, and not merely an implied or negative, presentation of his special defense in order to prevent the jury from ignoring it and conduct them to a proper verdict, if they find his evidence of such distinct and affirmative defense is true or raised. This is a correct enunciation of the law. What is a distinct and affirmative special defense is altogether a different question. The question of venue is in every case, and the burden is upon the state to show the venue where laid.

It has always been held by the Supreme Court and this court that it is not essential that venue should be proved beyond a reasonable doubt; that the doctrine of reasonable doubt does not apply to the issue of venue. Barrara v. State, 42 Tex. 260; McReynolds v. State, 4 Tex. App. 327; Deggs v. State, 7 Tex. App. 359; Achterberg v. State, 8 Tex. App. 463; McGill v. State, 25 Tex. App. 499, 8 S. W. 661; Cox v. State, 28 Tex. App. 92, 12 S. W. 493; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408.

In this case the question of venue was not a distinct and affirmative defense. But even if it was, it was clearly submitted by the court to the jury, and they were required to believe beyond a reasonable doubt that the offense was committed in Eastland county before they could convict. It is elementary that the whole of a charge must be taken together when complaint is made of any portion thereof. It is also elementary that when a question has once been submitted properly by the charge of the court, it is not only unnecessary, but improper, to give a special charge further on the subject. It is needless to cite the authorities on these points.

Now let us see what the charge of the court on this subject was. In stating the case the court said: “Bird Melton stands charged by indictment with the offense of rape alleged to have been committed m the county of Eastland and state of Texas, on or about the 9th day of October, A. D. 1911”. — then tells them that, there being two counts, he withdraws the first and submits to them only the second, and that in that second count, “it is charged that the defendant, Bird Melton, on or about the 9th day of October, 1911, m the county of Eastland and state of Texas did then and there,” etc. The court then correctly tells the jury that the means charged to have been used in committing the rape is fraud, and defines to them what is meant by fraud, applicable to the statute and this offense. Then in another separate paragraph he tells the jury that before rape by fraud is complete it is incumbent upon the state to establish, by the evidence beyond a reasonable doubt, the fact of fraud, and that by such fraud the defendant obtained carnal knowledge of the alleged female, and that such copulation was complete; that is, “that the defendant penetrated the private organ of the alleged injured female with his private male organ.” Then in a separate paragraph submitting the ease to the jury for a finding, he tells them: “Now, if you believe from the evidence in this case beyond a reasonable doubt that in Eastland county, Tex., on or about the 9th day of October, A. D. 1911, the defendant did,” etc. (telling them fully all of the things that were necessary for them to so believe before they could convict appellant), “and that he did, by said means, have carnal knowledge of her,” etc., that he would be guilty of rape as charged, and to render their verdict accordingly, telling them what the penalty for the offense was. Then follows another separate and complete paragraph, “unless you should so believe and find from the evidence beyond a reasonable doubt, you will acquit the defendant.” Then follows a complete charge on circumstantial evidence. In addition, he charges the burden is upon the state to establish appellant’s guilt by legal evidence beyond a reasonable doubt, and follows that with a separate paragraph that appellant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and if they have a reasonable doubt as to his guilt to acquit him. Then another paragraph follows telling the jury they are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to their testimony, but that they were bound to receive the law from the court as given in the charge and be governed thereby. The count in the indictment submitted by the court specifically alleges that Bird Melton on the date named, October 9, 1911 ‘¾ the county of Eastland, and state of Texas,” did then and there, etc.

The verdict of the jury is also significant. It is, after its date: ‘‘We, the jury in the case of the State of Texas v. Bird Melton, find the defendant guilty of rape as charged in the second count of the indictment, and assess his punishment at five years in the state penitentiary.” We are clearly of the opinion that the jury could not have found the appellant guilty under the indictment, charge of the court, and verdict herein above stated without specifically finding that the offense was committed in Eastland county and nowhere else, and that they could not have been misled, and were not misled, and found appellant guilty because the offense was committed, if so, in Palo Pinto county, and not in Eastland county. The court did not err in refusing appellant’s said special charge.

On the other question of the sufficiency of the evidence to sustain the verdict, we have again and again carefully studied the evidence in this case, and are clearly of the opinion that the evidence was sufficient to sustain the verdict.

We again state that it is elementary and cannot 'be questioned that any fact can be established by circumstantial evidence as fully and completely as by positive or direct evidence. It is not only universally true that the jury are the exclusive judges of the facts and the credibility of the witnesses, but it is statutory. “The jury are the exclusive judges of the facts in every criminal cause. * * *» o. O. P. art. 734.

It is also universal that: “The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial which witnesses are the more worthy of credit, and to give credit accordingly. That the jury are the judges of the credibility of the witnesses, and of the weight to be attached to the testimony of each and all of them; and the jury are not bound to take the testimony of any witness as absolutely true, and they should not do so, if they are satisfied from all the facts and circumstances proved on the trial that such witness is mistaken in the matters testified to by him, or that, for any other reason, his testimony is untrue or unreliable. The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact because a witness has stated it to be so, provided the jury believe from all the evidence that such witness is mistaken, or has knowingly testified falsely.” Saekett on Instructions to Juries, p. 29.

Jurors are not mere figureheads. They should not, must not, and do not give credence to every witness who testifies when there is a conflict in the evidence. If they did where one or more witnesses testified to a given state of facts, and another or others testified the reverse, they could never reach a verdict. They have the right, and it is their privilege, if not their duty, to believe a part of the testimony of a witness and not believe another part. They could not properly discharge their functions and ever find a verdict unless that were true.

The jury must not receive nor consider evidence other than what is given to them on the trial of the case; and, if either or any has knowledge of any fact pertinent in the case, they cannot consider that, unless testified to by them on the trial. There is no intimation in this record, or otherwise, that these jurors or any of them had any knowledge of any fact in connection with this case, or that they received testimony other than that which was given upon the trial. Yet it is their duty, as stated above, not to sit as mere dummies or numbskulls, but that they are “to use their general knowledge and experience such as any man may bring to the subject, and may and should take into account all the presumptions, which, according to the ordinary course of events, or according to the ordinary experience of manlcmd, arises out of the facts proved, and conclusions may he reached that lie quite heyond the mere letter of the evidenced” Their duty and privilege in this regard is most' aptly expressed in 38 Oye. p. 1838, as follows: “To the general rule that facts in issue must be found by the jury on the evidence adduced at the trial and on the evidence alone, there is a distinct and well-defined exception, namely, that the jury have the right in making up their verdict to use their general knowledge and experience such as any man may bring to the subject, and may and should take into account all the presumptions which, according to the ordinary course of events, or according to the ordinary experience of mankind, arise out of the facts proved, and conclusions may be reached that lie quite beyond the mere letter of the evidence. While a jury are not to use their own judgment in making up a verdict upon a subject calling for particular knowledge or experience not within the general knowledge they have in common with the rest of mankind; and, while they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently, they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry.” This statement of the law is not only backed up by unquestioned reason, but by numerous authorities as cited in Oye. And as further stated in Patterson v. Boston, 30 Pick. (Mass.) 159, stated in note to Cyc: “Juries would be very little fit for the high and responsible office to which they are called * ⅜ ⅜ if they might not avail themselves of these powers of their minds, when they are most- necessary to the performance of their duties.”

Now then, let us see what the evidence in this case is on this point. Briefly, it is that the prosecuting witness, Annie Clarkson, did . testify that appellant did not have sexual intercourse with her the first night in Eastland county where they stayed, after the false marriage. She was before the jury, as well as the appellant was. The jury had the right, as Mr. Sackett says above, to determine from her appearance on the stand, her manner of testifying, her apparent candor and fairness, her intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial whether she was worthy of credit when she so testified. They concluded from all this that her testimony on this point was not true, or was a mistake, or was brought about by some or all of the facts they could look to as to whether she was testifying the truth on this point or not. If they had believed her testimony on this point, 'unquestionably they would have found the appellant not guilty. But that was not all the testimony, nor all the surrounding facts shown to the jury'. Some of them briefly are: That the appellant was a young man; he had been married, but separated from his then living wife. She, Annie Clarkson, testified, not only on direct, but on cross-examination, that before her pretended false marriage to him, “I told the jury this morning that I refused to have intercourse with the defendant before he pretended to marry me, and I refused to have intercourse with him.” She was a young, ignorant country girl, not then 15 years of age, lacking more than four months of being 15 years of age; he had been courting her and engaged to her for about three or four months prior to that. Doubtless he had used all the wiles known to him to induce her theretofore to have sexual intercourse with him, but she stood firm and told him nay. Then what does he do? He knew, not only in law but in fact, that he could not legally marry this girl. In order to induce her to go through this false pretended marriage, he lied to her, telling her that he had a divorce from his then living wife. He also falsely told her, to inveigle her into that pretended marriage, that he had a legal license from the proper authorities of Eastland county to marry her. He also falsely told her that the person who then and there pretended to perform the marriage ceremony was a minister of the Gospel and authorized to marry them. He then took her that night, after all these false representations to her, and his pretended marriage to her, and his failure theretofore to induce her to let him have sexual intercourse with her, off into a wagon partly loaded with seed cotton, where he remained with her the whole night, with no other to see or hear or molest him, she testifying: “The first night I spent with my husband he embraced me and kissed me during the night. He did not fondle me. He was familiar with my person and fondled my person. He placed his hand on my person during the night.” We take it that no reasonable juror, nor judge, could for one moment doubt what this was and what it meant. We are not dealing with persons who properly and legally enter into the holy bonds of wedlock and who, for the first night, occupy the bridal bed. This is not that kind of case, and this is not that kind of man we are dealing with. But who is the man we are dealing with in this case? It is a man of experience, seeking by all the wiles to induce this young girl to have sexual intercourse with him, without any even pretended marriage, but she denied him. Then to accomplish his purpose and to gratify his aroused sexual passion he induced her to marry him and occupy this wagon with him all that night— for what purpose and .with what intent? To occupy the bridal bed in the holy bonds of wedlock? No; but for the sole purpose and with sole intent of accomplishing his desire and having sexual intercourse with this child. In our opinion no reasonable juror or judge could for one moment doubt it. So what do we have? We have a young, ignorant girl, doubtless trying to protect the appellant from conviction, testifying that he did not have intercourse with her that night in Eastland county, but all the other facts and circumstances point unerringly and show without the shadow of a doubt that he did, that night, have sexual intercourse with her. His purpose was not to live in holy wedlock with her. He could not lawfully do so, and he knew it. His whole object and purpose was to have sexual intercourse with her. He knew he could not live in lawful wedlock with her. He had no such purpose and intention.

But we are met with a dissenting opinion of our eminent Presiding Judge in. this case, wherein he contends that the evidence in this case, in effect, shows without, question that this false marriage was in fact and in law a common-law legal marriage, and. that the offense committed by the appellant was not rape, but that it was bigamy. And he again reiterates briefly his dissenting opinion in the cases of Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 904, and Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W 1108, Ann. Cas. 19120, 126. He also cites and calls upon the decision of our Supreme Court, in an opinion written by Chief Justice Brown in Grigsby v. Reib, 153 S. W. 1124, and claims that that opinion sustains him in his position. We have carefully read that decision, and in our opinion it holds the very reverse of his contention, and, instead of sustaining him, refutes his contention and argument. We will state that opinion as stated by Judge Brown: Mrs. Grigsby instituted suit against the children and heirs of G. M. D. Grigsby, deceased. (It will be borne in mind that there was no legal impediment whatever to the marriage of these persons, because neither of them were then married to any other person.) This Mrs. Grigsby kept what she termed a rooming house, but in fact an assignation house, in Dallas, in which girls roomed and received their visitors, and in which men and women resorted for illicit purposes. Judge Brown says: “Adopting the statements of plaintiff and her witness as true, the facts were, in substance, that, Grigsby’s wife having died, he visited plaintiff in her place, and they agreed to be husband and wife, and then began sexual intercourse; he coming to that house at different times and frequently. They occupied the same room and the same bed, and indulged their sexual desires, Grigsby called plaintiff his wife, and introduced her to some persons as such. ⅜ ⅜ * She did not assume the name of Grigsby until after his death. Grigsby died at Jefferson in 1906, and defendants, under lawful claim, took possession of his property, at least of that part in suit which plaintiff claims to have been acquired by Grigsby after her alleged marriage to him, wherefore she claims one-half of it as community property.” Judge Brown then states that it is unnecessary to give the facts relied upon by the defendant, because the law which must control can be more clearly stated under this plain condensed statement of plaintiff’s claim. The opinion then takes up and discusses the common law, and of course correctly holds, which nobody denies, that a common-law marriage is a valid marriage in this state. He then, among other decisions, takes up the opinion of Judge Williams in Simmons v. Simmons, 39 S. W. 639, while Judge Williams was on the Court of Civil Appeals of the First District, and shows that Judge Williams’ statement of the law, wherein he said: “To constitute such a marriage, it requires only the agreement of the man and woman to become then and thenceforth husband and wife. When this takes place, the marriage is complete”- — and shows this is not, and was not, the law. This opinion in the Simmons Case, and an opinion by Judge Neill in Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284, which follows it on this point, was cited by Judge Davidson in his dissenting opinion in Lee v. State, supra, to sustain him in his then contention, as now. But Judge Brown in this case (Grigsby v. Reib, supra) expressly holds that the decision of Judge Williams in the Simmons Case was not the law, and, of course, that of Cuneo, supra, following it, had not been and is not the law. And Judge Brown in concluding his opinion says that the court in the Grigsby Case correctly charged the law,, not as claimed and laid down in the Simmons Case, and also held that the jury had' found correctly on the facts, which finding was against the claim of Mrs. Grigsby. We are in full accord with the decision in the Grigsby v. Rieb Case, supra, and our opinion in this ease is in no way in conflict therewith, but is in full accord with it.

Judge Davidson in this case says that appellant was not guilty of rape, but was-guilty, if anything, of bigamy. The rape charged in this case was alleged to have occurred, and the proof all shows that it did occur, in Eastland county on the night of the marriage, and not at another time. The-rape was then a complete offense. Bigamy under the facts of this case could not have-then occurred, because as held in the Grigsby Case, supra, and all of the decisions on the subject, it took, not only the assent of the parties to the marriage, but it also took a continuous living together thereafter as husband and wife to constitute a marriage at common law, and thereby complete the offense of bigamy, so that appellant could have been prosecuted or convicted therefor. In other words, the rape was complete the night of the marriage and the act of sexual intercourse that night. Bigamy could not have been committed, or appellant guilty of bigamy, until and unless he lived with the girl for a considerable length of time thereafter with all the other concurrent and continuous acts necessary to show marriage. It is true, the girl testified that they lived together some nine months thereafter, she supposing that they were husband and wife. But in March subsequently, some four months only after the pretended false marriage, appellant denied to his brothers expressly that he had married this girl. That was, so far as the record shows, the first time the matter came in question, and when it did he immediately stated he had not married the girl.

But suppose it be conceded that the appellant by this transaction of pretended marriage alone, or that and the subsequent living together for a few months with the girl, so as to indulge his sexual passion with her, thereby committed the offense of bigamy —then what is the law on the subject? It is clearly stated by Mr. Bishop in his 1 New Criminal Law, § 791, as follows: “One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He & not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain: the question being whether it shows him to be guilty of the one charged.” That doctrine has been aptly and repeatedly announced and held by this court. It is tersely stated in Quitzow v. State, 1 Tex. App. 53, 54 [28 Am. Rep. 396]: “The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once.” Grisham v. State, 19 Tex. App. 513; Simco v. State, 9 Tex. App. 338; Wright v. State, 17 Tex. App. 152; Jacks on v. State, 43 Tex. 421; Whitford v. State, 24 Tex. App. 489, 6 S. W. 537, 5 Am. St. Rep. 896; Mercer v. State, 17 Tex. App. 464. Therefore, the appellant having been guilty of rape, the state had the right to choose which offense it would prosecute for, whether for rape or bigamy, even if he was guilty of bigamy. He had no right to choose for which offense he should be prosecuted. The state alone had that right, and, having carved and convicted him of one, he cannot complain that the state ought to have carved and convicted him for the other.

We do not hold in the original opinion in this case that the presumption of innocence did not prevail, nor did we hold that the presumption of guilt prevailed. By no strained construction, or otherwise, of the language in the original opinion, can we be made to say any such thing. The presumption of innocence is a legal presumption, but proof can be offered to show guilt, notwithstanding this presumption, and when that is done, and a jury on sufficient evidence found him guilty, this presumption of innocence was done away with, and no longer prevailed. And the evidence, with all the facts and surrounding circumstances proved in this trial, clearly and fully authorized the jury to believe, as it did, and found, that he had sexual intercourse with this girl the first night he slept with her in Eastland county, with all the other facts necessary to show his guilt. He is shown to be guilty notwithstanding the girl testified he did not have sexual intercourse with her that first night. The jury was in no way bound to believe her testimony on that point, but from all the other facts and circumstances could, as they did, believe and find he did have sexual intercourse with her that first night.

We expressly approve and adhere to the decisions, in Lee v. State, supra, and Wilkerson v. State, supra. They correctly announce and hold the law on the question of rape by the character of fraud therein and herein shown.

The motion is overruled.

DAVIDSON, P. J.

(dissenting). 1. If living together as husband and wife publicly and known of all men and so recognizing each other, and so recognized in addition by all the family connections and relatives, and this for nearly a year and until his arrest, could show a common-law marriage, the evidence constituted such common-law marriage, and would have been a legal one but for the prior marriage, and the recent decision of the Supreme Court so holds. I do not care to again review the facts. See Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241, and all subsequent cases.

2. The state proved there was no intercourse in Eastland county where conviction occurred, by positive evidence of the prose-cutrix. She was an unfriendly witness to and against defendant. Rape is absolutely dependent upon “penetration.” See statute defining rape. State not only failed to prove the case, but absolutely disproved it. My Brethren hold it could not be bigamy, but only rape, and yet hold the state had the right to carve its case and could prosecute for rape or bigamy as officers saw proper. Much learning has been quoted in prevailing rehearing opinion that has no application to the case and made to do duty erroneously. I do not care to discuss the.majority opinion further. This conviction is without authority of law or evidence, but against both.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    COX v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Juey (§ 66) — Drawing of Jueoes — Sufficiency of Panel.
    Where, owing to the death of the clerk of the court at a former term, no jury commissioners were appointed, and at the next term the panel of jurors was drawn by the sheriff, the panel cannot be quashed; Code Cr. Proc. 1911, art. 715, declaring that, when from any cause there are no regular jurors, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient to serve as jurors.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 283-290, 306; Dec. Dig. § 66.]
    Appeal from Orange County Court; O. R. Sholar, Judge.
    Mose Cox was convicted of unlawful gaming, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted for unlawfully gaming. There is no statement of facts in the case. There is only one question raised necessary to decide.

Appellant’s bill of exception presenting this question shows that the clerk of the court died in July, 1912, and in consequence thereof, at the suggestion of the attorneys of the court, no business was transacted at that term, and the court, in that way, failed to appoint jury commissioners and have a jury selected for the next term of the court. Appellant made a motion to quash the panel, because the jury was not selected by jury commissioners, but was selected by the sheriff. This is the only ground of complaint.

Our statute (article 715, O. O. P.) is: “When, from any cause, there are no regular jurors for the week from whom to select a jury, the court shall order the sheriff to summon forthwith such number of qualified persons as it may deem sufficient; and, from those summoned, a jury shall be formed, as provided in the preceding articles of this chapter.”- This law was literally complied with in this case. Columbo v. State, 145 S. W. 911; Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; Sanchez v. State, 39 Tex. Cr. R. 389, 46 S. W. 249. It is needless to cite other authorities. The court’s action was correct in overruling appellant’s motion to quash the panel.

There is no other question raised which we can review in the absence of a statement of facts.

The judgment is affirmed.


author: HUEF, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. WORD.
    (Court of Civil Appeals of Texas. Amarillo.
    May 31, 1913.
    Rehearing Denied June 21, 1913.)
    1. Damages <§ 112) — Measure—Destruction oe Grass in Pasture.
    In an action for damages caused by the negligent burning of grass in a pasture, the plaintiff is not limited to a recovery for the value of the grass, but may also recover for the expense of feeding the cattle pastured thereon, if made necessary by the burning of the grass, since such an expenditure was required on his part to prevent a greater damage by reason of the depreciation, in the value of the cattle.
    [Ed. Note. — -For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.]
    2. Damages (§ 20) — Proximate Cause oe Loss — Anticipated Injury.
    A party injured by the negligent act of another is entitled to recover such damage as will compensate him for the injury if it might have been foreseen by the exercise of reasonable care that the injury, or some like injury, would have resulted from the negligent act.
    [Ed. Note. — Eor other cases, see Damages, Cent Dig. §§ 55-57; Dee. Dig. § 20.]
    3. Triad (§ 260) — Instructions—Requests— Instructions Already Given.
    In an action to recover the cost of feeding cattle after their pasture had been negligently burned by the defendant, where the court instructed the jury that they should consider only the amount of feed necessary on account of the grass that was burned, and not the cost of the feed that would have been necessary if the fire had not occurred, it was not error to refuse a requested instruction that the plaintiff could not recover if he would have fed the cattle the same amount and been to the same expense if there had been no fire, since that was sufficiently covered by the instruction given.
    [Ed. Note. — Eor other cases, see Trial, Gent. Dig. §§ 651-659; Dec. Dig. § 260.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    Action by C. T. Word against the Chicago, Rock Island & Gulf Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, and N. H. Lassiter and Robt. Harrison, both of Et. Worth, for appellant. W. Boyce, of Amarillo, for appellee.

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

   HUEF, C. J.

The appellee, Word, obtained judgment against appellant, the Chicago, Rock Island & Gulf Railway Company, in the district court of Potter county for the sum of $918. The cause of action was based upon the burning of grass on the 22d day of February, 1909, alleged to be in appellee’s pasture, containing six sections of land, where he held 500 head of cattle to winter. It is alleged, among other things, that there was a fine coat of grass in the pasture, and that the same had not been pastured in the previous summer and fall, but' was held for winter pasture, and that a few days previous to the fire appellee had turned 500 head of cattle into the pasture, and that the grass would have furnished ample spring and winter pasturage for the cattle, all of which facts were or should have been known to the appellant. And further alleged: “(4) That, as above stated, the plaintiff had saved said pasture to be used as a winter pasture, and had just turned 500 head of cattle therein for the purpose of wintering them on the grass; that said grass, on account of not having been grazed during the previous season was in fine condition, and that but for said fire his 500 head of cattle would have wintered in good shape in said pasture without the necessity of feed; that on account of the destruction of said grass there was not remaining in said pasture sufficient grass to winter said cattle, and the use of said pasture for grazing purposes was greatly impaired on account of the burned areas of land extending through the same, necessitating the cattle, when moving from place to place therein, to walk over considerable distances without anything on which to graze, which is not good for cattle, and which condition greatly reduced the value of the pasture remaining unburned as aforesaid; that by reason of the burning of said grass and the injuring of said pasture it was necessary for the plaintiff, in order to properly winter his said cattle, to feed them during the balance of the winter and until the coming of grass in the spring; that it was necessary to begin feeding said cattle immediately after the fire, and continue feeding them until about the 18th day of April, a period of about 55 days; that during said time plaintiff fed said cattle about 27½ tons of cotton seed cake, which, was of the reasonable market value of the sum of $28.76 per ton, and that is what it cost the plaintiff; that plaintiff was at an expense of about $5 per day for the hire of men and teams to feed said cattle, so that plaintiff was out a total expense of about the sum of $1,065.90 for the feeding of said cattle during said time; that said expenses were reasonable and made necessary by the wrongful acts of said defendant in burning said grass; that said cattle, notwithstanding said feeding, did not winter in any better condition than they would have wintered but for said fire, and that by reason of the premises the plaintiff has been damaged in the said sum of $1,065.90, with interest thereon at the rate of 6 per cent, per annum from February 22,1909. (5) That said grass at the time and place stated had no market value, that the reasonable value of the same to the plaintiff at the time and under the circumstances was the sum, to wit, of $1,065.90.”

The facts established by the jury are that appellee, O. T. Word, had about six sections of land fenced in a pasture to itself, about 2,000 acres of grass therein was destroyed by fire, negligently communicated by one of appellant’s passing engines, February 22, 1909. The land was leased at about six cents an acre. Appellee had in this pasture 500 head of 2-year old heifers. By reason of the burning of the grass, it was necessary for appellee to feed the cattle in such pasture, and by reason thereof he did feed the cattle cotton seed cake, of the market value as found by the jury, and other expenses in feeding the same. The evidence is sufficient to support the amount found by the jury. The appellee did not at that time have other pastures into which he could turn the cattle, and there were no other pastures which could be leased at that season of the year in that part of the country. The lands were leased by the year, and the lease was made to expire in July of each year. Cotton seed was about the cheapest feed that he could obtain at that time. The expenses in feeding the cattle were reasonable and necessary, and were proximately caused by the negligent burning of the grass by appellant. The market value of the leased land was about six cents per acre when they were leased, but the evidence is sufficient to support the finding that there was no market value at that time of the year. Appellant’s road ran through a pasture country in a mile or so of the pasture in question, and the fire was communicated from the passing train of appellant to land adjacent to its road, and thence on to the particular pasture lands in question. The pasture at that time was stocked with cattle, dependent on the -grass for sustenance, and up to the time of the fire had not been fed. The trial court submitted ' to the jury the following charge on the measure of damages: “If under the foregoing instructions you find for the plaintiff, and you further find that as a proximate result of the burning of the grass in the plaintiff’s pasture it became and was reasonably necessary for him to furnish feed, and that he did furnish feed, to the cattle owned by him in said pasture in order to avoid greater loss and damage thereto, and in order to winter them, then you will find for the plaintiff as damages such sum of money as you believe from the evidence it was reasonably necessary for him to pay for and did pay out for feed for said cattle with the reasonable and necessary expenses incurred by him in feeding and caring for said cattle in order to winter them, together with 6 per cent, interest thereon from the 22d day of February, 1909.”

Appellant assigns error in this charge, which is presented by the first assignment. Under this assignment, appellant presents the proposition: “The charge is error because the plaintiff was not entitled to recover the amount that was necessary for him to pay out for feed for the cattle which he did pay, but his proper measure of damages was the value of the grass destroyed.” It may be stated as a general rule that the value of the grass destroyed is the measure of damages; but we think, if the wrongful act caused other damages, that also may be recovered. If injury accrues from a negligent act, the damages which the injured party is entitled to recover are such as will compensate him for the injury as might reasonably have been anticipated under the circumstances, such as in the usual and ordinary course of events would have been expected. The exact injury need not have been anticipated, nor the particular manner in which it occurred, if by the exercise of reasonable care it might have been foreseen that some like injury would have occurred. Railway Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54; Seale v. Railway Co., 65 Tex. 278, 57 Am. Rep. 602; T. & P. Ry. Co. v. Carlin, 111 Fed. 777, 49 C. C. A. 605, 60 L. R. A. 462; Railway Co. v. Bingham, 90 Tex. 223, 38 S. W. 163; 29 Cyc. 495; Sutherland on Damages (3d Ed.) §§ 12-16; Serafina v. Railway Co., 42 S. W. 142; Miller v. Railway Co., 90 Mo. 389, 2 S. W. 439; Highland v. Railway Co., 65 S. W. 649. Appellant’s road ran through a pasture stocked with cattle. The destruction of the pasture upon which the cattle fed in the ordinary course of nature required that the sustenance of the cattle so destroyed be supplied or the cattle would depreciate or become a total loss. It became the duty of appellee to avoid the greater loss; and, if in doing so he incurred reasonable and necessary expense, he was entitled to recover for such expense. Railway Co. v. Keith, 74 Tex. 287, 11 S. W. 1117; Railway Co. v. Tuckett, 25 S. W. 670; Railway Co. v. Philips, 63 Tex. 593; Buffalo B. S. C. Co. v. Milby, 63 Tex. 492, 51 Am. Rep. 668. We think that the damages sustained were proximately caused by the negligent burning of the grass upon which the cattle subsisted. This damage could hare been or should have been anticipated or at least a similar damage foreseen. Buffalo B. S. C. Co. v. Milby, 63 Tex. 492, 51 Am. Rep. 668, and authorities cited, supra. The ease of Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189, was one in which Hawkins sued Enlow for the shrinkage of cattle and consequent damages occasioned by the destruction of certain shocks of corn which Hawkins had purchased from Enlow to feed 500 head of cattle, and it was held in that case the shrinkage of the cattle were the direct and immediate consequences of Enlow’s act, and one which could have been reasonably anticipated. That court cites the case of Hoge v. Norton, 22 Kan. 374, which latter case was decided by Judge Brewer, and appears to be a suit in damages for the failure of the cattle to make the growth and increase in weight which cattle would ordinarily make if left upon a range to which they wonted free from worry with good feed and water, such as they had on the ranch where they had been previously kept. They had been moved to an inferior range by the wrongdoer. It was there held that the loss sustained was the direct result of the wrongdoer and was so certain in character as to be susceptible of measurement. In the Enlow Case, supra, the court said, in speaking of that case: “There the cattle were wrongfully taken from their accustomed feed, and here the accustomed feed was wrongfully taken from the cattle.” So it may be said in this case the accustomed feed and that provided was taken from the cattle in question. They would suffer loss by poverty if not properly fed; and unless that sustenance was supplied, clearly if such loss had occurred, appellant would have been liable therefor. This was prevented by appellee procuring other feed. Why should appellant escape such additional expense in procuring it, if reasonable and necessary? The court in the Enlow Case held: “It was the duty of Hawkins to arrest or reduce the loss consequent on the wrong of Enlow, and the testimony tends to show that he procured the best feed that could be had in that region.” In this case the evidence tends to show grass at that season of the year could not be obtained in that country, and therefore it became a question of fact for the determination of the jury, whether the -expenses incurred were reasonable and necessary. Sutherland on Damages (3d Ed.) § 28; Gilbert v. Kennedy, 22 Mich. 117; Cossgriff v. Miller, 10 Wyo. 190, 68 Pac. 206-214-216, 98 Am. St. Rep. 977; McAfee v. Crofford, 13 How. (U. S.) 448, 14 L. Ed. 217. In the case of Cossgriff v. Miller, supra, it is said at page 234 of 10 Wyo., at page 216 of 68 Pac.: “The evidence of plaintiff, together with the fact that the other ranges in the vicinity were occupied, rendered it clear, if accepted by the jury, that the expense of feeding hay was the direct result of the trespass; and such expense was admissible, we think, under the general allegations of actual damage caused by grazing the grass off of the plaintiff’s pasture ground.” The rule 0 in torts as a general thing is governed by the same principles as to compensation as that upon the breach of a contract. Wilson v. Manning, 35 S. W. 1079-1080; Sutherland on Damages (3d Ed.) § 104. Applying the rule to breach of contract, we refer to the cases asking and given for damages in expenses, etc., to prevent injury to cattle under a breach of the contract. Waco Artesian Water Co. v. Cauble, 19 Tex. Civ. App. 417, 47 S. W. 538; Hardin v. Newell, 40 S. W. 331; Buck v. Morrow, 2 Tex. Civ. App. 361, 21 S. W. 398. The question was one for the jury to determine whether or not the damages claimed in this case was the proximate result of the negligence alleged. If they, under the evidence, found such damages were caused proximately by the negligence of appellant, we think the verdict should not be disturbed. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280; Buck v. Morrow, 2 Tex. Civ. App. 361, 21 S. W. 398. In Jones v. George, supra, the court in discussing the measure of damages, and as to the proximate cause in a breach of contract, decides therein that the rule applicable to a breach of contracts is also applicable to torts, quoting from Calvit v. McFadden, 13 Tex. 327, with approval, in which case Judge Wheeler stated the rule: “It must have appeared also that the loss was incidental to and caused by the breach of the contract and was such as may reasonably be supposed to have entered into the contemplation of the parties contracted.” It will be found that Judge Stayton in Jones v. George, supra, has collated and discussed the rule as applied to various circumstances, and as we view this case is valuable as bearing upon the facts presented by the record herein. The damages which the court authorized the jury to find were not speculative, but reasonable and necessary for feed to said cattle by reason of the burning of the grass, and that such feed was the proximate result of the burning of the grass. We overrule the first assignment, and for the reasons stated above overrule the second assignment.

The third assignment complains at the action of the court in the refusal of requested instruction No. 9, to the effect, if the ap-pellee would have fed his cattle, the amount of feed that was given them and would have been out the same expense for men, etc., appellee could not recover. At the request of the appellant, the court gave the following charge: “You are instructed that in the event that you find that the defendant railway company negligently set out the fire described in plaintiff’s petition, and that such fire' spread to and burned off the grass on a portion of the land and premises inclosed, and held by plaintiff, and that on account thereof plaintiff was required to feed his cattle, then being pastured on said lands and premises to prevent damage and injury to them in making up your verdict, you will take into consideration only the amount of feed given to and necessary for the care and protection of said cattle on account of the grass that was burned; and you will not consider the cost of feed that plaintiff would have given' said cattle if such Are had not occurred, or for any feed given said cattle on account of the condition or severity of the weather oc-curing after such grass was burned.” From the testimony the jury could have found the cattle did not winter any better with cotton seed cake fed them than they would have wintered on the grass. The facts also show that appellee fed his cattle through February and March but the cake he fed to the cattle on the grass, and that, when there was no grass, he had to round up the cattle, which was injurious to them. The appellee stated the particular 500 head in the pasture he could not state were benefited by being fed on cake, as he did not intend to market them in the spring. The evidence shows that there was no grass to be had for these cattle in that country, and that it was necessary to feed them, and it is further shown that after the burn there was not enough grass in the pasture to carry them without feed; that they would have gotten poor and some of them would have probably died. We think the charge given sufficiently instructed the jury as to feed for which appellee was entitled to recover. We find no error in refusing the charge.

The fourth assignment is overruled for the reasons heretofore given. We think no error is shown by the refusal of the fourteenth special instruction, and we therefore overrule the fifth assignment.

The sixth, seventh, eighth, ninth, tenth, and eleventh assignments are overruled. We think the questions raised by these assignments have been sufficiently noticed under the first assignment and under the statement of the case.

We find no such error in the judgment of the trial court to require a reversal of the case, and it is therefore affirmed.


author: HALB, J.

text:
    PECOS & N. T. RY. CO. v. PORTER et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1913.)
    1. Costs (§ 256) — On Appeai^Statement oe Facts — Contents.
    Under Rule 84 for the District Courts (142 S. W. xxiii), providing that amended pleadings shall take the place of those for which they are substituted, and the abandoned pleadings shall be left out of the record, and Rule 85, providing that, in making a transcript for appeal, all papers shall be entered in the order in which they occurred unless, with the approval of the judge, counsel shall agree in writing as to those which may be omitted as useless in the decision of the case, it was not necessary to copy the original and amended petitions in the statement of facts, if they already appeared in the transcript, even though they were introduced in evidence to show the date of filing the action, the parties, and the change in the cause of action, but the facts shown thereby should have been briefly stated in the statement of facts.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    2. Costs (§ 256) — On Appeal — Statement oe Facts — Approval bx Appellee — Estoppel.
    The fact that the appellees agreed to the statement of facts does not estop them from asserting that it was unnecessarily prolix.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    3. Costs (§ 256) — On Appeal — Statement oe Facts — Omission oe Immaterial Matters— Dtjtx oe Appellant.
    Under Rule 85 (142 S. W. xxiii), above set forth, the appellant must endeavor to agree with appellees for the elimination of unnecessary papers.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    4. Costs (§ 256) — On Appeai> — Transcript-Bill oe Exceptions — Contents—Amended Pleadings.
    Where error was assigned to the overruling of a motion to dismiss the suit on the ground of a change of cause of action in the amended petitions, the original and amended petitions should be set out in the transcript, but need not be in the bill of exceptions.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    5. Costs (§ 256) — On Appeai^Transcript— Contents — Motion to Dismiss.
    Where such a motion for dismissal is set out in full in the bill of exceptions, it need not be copied in the transcript.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    6. Costs (§ 256) — On Appeal — Statement oe Facts — Contents—Evidence.
    Evidence, which is set out in full in the bill of exceptions, need not be. repeated in the statement of facts, under Rev. Civ. St. 1911, art. 2060, providing that where the statement of facts contains all the evidence requisite to a bill of exceptions, the evidence need not be set out in the bill, and it is the appellant’s duty to try to obtain a written agreement for the omission of such evidence from the statement.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.]
    On motion to retax costs after reversal of judgment.
    Motion granted.
    For opinion reversing the judgment, see 156 S. W. 267.

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

   HALB, J.

Appellee has filed a motion to retax the costs in this case. By reason of the fact that the judgment was reversed and the cause remanded, the clerk of this court, in accordance with Revised Statutes, art. 2035, which is as follows: “The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may be otherwise provided by law” — and the further article of the statute, providing for the issuance of execution from this court against the party adjudged to pay such costs, has taxed the costs against appellees, and is urging tlie payment thereof. It is insisted in the motion that the record in this case has been prepared in flagrant disregard of the statutory provisions and the rules governing its preparation, ana in gross disregard of the rights of the appellee, in that many of the proceedings of the trial court appear twice in the transcript, and many other proceedings and documents are duplicated in the record by being inserted both in the transcript and in the statement of facts.

To be more specific, the following matters are complained of: The original petition appears in both the transcript and the statement of facts, and the same condition exists as to the first amended original petition, second amended original petition, and the third amended original petition. Appel-lees insist because these pleadings have been superseded by a fourth amended original petition, that under Rule 84 for the county and district courts (142 S. W. xxiii) they have no place in the record. The statement of facts' shows that the original petition was offered in evidence by appellant for the purpose of showing the date of filing suit, the parties thereto, and the nature of the action, and the first, second, and third amendments thereof were offered in evidence for the purpose of showing the date upon which each of these amended pleadings were filed, and the nature and change of the cause of action and of the parties. Rule 84, for the district courts, in part is as follows: “In making a complete record, as prescribed by statute, all the proceedings in the ease shall be entered in the order of time in which they occur; provided, amended pleadings shall take the place of those for which they are substituted, and the pleadings thus superseded (except such as are specified in Rule 14), and those that are abandoned as shown by an order or judgment of the court, shall be left out of the record.” Rule 85 (142 S. W. xxiii), promulgated before the present law separated the statement of facts from the transcript, provides: “In making a transcript” for appeal to this court, “the proceedings shall be entered in the order of time in which they occurred, as prescribed in Rule 84, unless, with the approval of the judge, counsel on each side shall agree in writing to be itself filed and copied in the transcript, dvrecting the clerk which of the papers may he left out, as being useless in the decision of the case." In our opinion, if they should have been in the statement of facts at all, it was not necessary for these abandoned pleadings to have been copied in full, but the date fipon which each of them was filed, together with a statement as to the parties, plaintiff and defendant, mentioned therein, and a succinct statement of the nature of the action, might easily have been incorporated therein and thus have eliminated several pages of the statement as it now exists. The third amended petition is six pages of typewritten matter, and the preceding pleadings are correspondingly lengthy.

There is no agreement in the record, aside from the agreement of counsel, found at the end of the statement of facts, relating to the contents thereof, and the incorporation of these matters is clearly chargeable to the appellant. McLennan Co. v. Graves, 94 Tex. 635, 64 S. W. 861. Appellant insists, however, that, appellees having agreed to the statement, they cannot now be heard to object that it is unnecessarily prolix. Eindlay, Chief Justice, in Caswell v. Hopson, 43 S. W. 547, said: “It is insisted that appellee’s counsel are estopped to object to the manner in which the statement was prepared, by reason of the fact that they agreed to the statement. The rules in question were not made for the convenience and benefit of counsel, but were intended to facilitate the correct and orderly dispatch of business in the appellate courts. The court could strike out and disregard such a statement of facts upon its own motion. The doctrine of es-toppel, therefore, has no application.”

We think the rule required appellant to resort to all reasonable means in order to reduce the volume and costs of the record (which is the transcript, together with the statement of facts. Heflin v. E. Ry. Co. of N. M. [Sup.] 155 S. W. 188), and to that end an effort to agree with appellees’ counsel upon the elimination of the greater part of the matters specified in this objection should have been made. We think, if appellant, after trying and failing to agree with appel-lees’ counsel, upon a brief statement of the facts sought to be shown by the introduction of these pleadings, had been forced to copy the entire instrument in the statement of facts, it would have been the duty of this court, upon a proper showing, to have taxed the costs thereof against appellees, regardless of the final determination of the suit. We have said this much upon the general proposition advanced by appellees.

Inspection of the record shows that a motion was made by appellants to dismiss the suit in which the alleged change in the cause of action, etc., by amended pleadings was urged as the ground of dismissal. This motion is copied in the transcript, and is also set out in full in bill of exceptions No. 12, filed by appellants. The transcript further contains the order of the court overruling it. These matters appearing fully in the transcript, it was not necessary for the pleadings, or even the substance thereof, to appear in the statement of facts. We think it was proper for the superseded pleadings themselves to be in the transcript, for the reason that appellant, by its first assignment of error, insists that the court erred in overruling this motion to dismiss, which renders it necessary for this court to inspect the pleadings in order to judge of the propriety of such ruling.

Appellees contend that the motion to dismiss, having been copied at length in the bill of exceptions, should not have been again transcribed in the transcript. In our opinion this contention is sound. The record should bring before this court the entire proceedings in the trial court upon which error is sought to be predicated, but care should be exercised to avoid incumbering the record by useless repetition in the transcript or statement of facts of any written matter which has been made clearly to appear one time. Reference could have been made in the brief to the motion as incorporated in the bill of exceptions, which would have been sufficient to direct this court to its consideration.

Objection is further made by appellees that a long list of items, which was attached to 'the deposition of one Cameron, and another list attached to the deposition of •Mrs. Leihman and Mrs. Porter, and a copy of an assignment from J. H. Porter and wife to B. M. Porter, a copy of a second assignment from L. Cameron to B. M. Porter, and the opinions and rulings of the Interstate Commerce Commission, and the motion of the defendant to withdraw its announcement of ready for trial have each been copied in full in bills óf exception reserved by appellant, and are again transcribed into the statement of facts. Article 2060, Revised Statutes, is: “Where the statement of facts contains all the evidence requisite to explain the bill of exceptions, it shall not be necessary to set out such evidence in the bill of exceptions: bnt it shall be sufficient to refer to the same, as it appears in the statement of facts.” But in Texas Central Railway Co. v. Flanary, 45 S. W. 214, Key, Justice, said: “But, as the statement of facts in this case was not filed until after final adjournment of the court, and as appellant, before such final adjournment, procured and filed properly authenticated bills of exceptions to all the rulings complained of in the statement of facts, it is manifest that these objections, and the rulings thereon, should not have been incorporated in the 'statement of facts ; and it is reasonably certain that they were not so incorporated for the purpose of preserving objections to testimony.”

The record discloses that the bills of exception, taken, to. the action of the court in admitting the testimony of Cameron, Mrs. Leihman, Mrs. Porter, and in admitting the assignments from J. H. Porter and wife to B. M. Porter, and from Cameron to B. M. Porter, as well as the opinions and rulings of tlie Interstate Commerce Commission, have been brought forward and insisted upon in the brief of appellants. While evidence offered and excluded should not be contained in the statement of facts (Home C. S. No. 2 v. Shelton, 85 S. W. 321), all evidence admitted must necessarily be in the statement of facts, unless counsel on each side shall agree in writing that it be omitted. And this case illustrates the importance and wisdom of Rule 85. If any of this evidence had been set out in full in bills of exception, or was attached to the pleadings as exhibits, and in that way had appeared in the transcript, then it was obviously unnecessary to again set it out in the statement of facts, but in lieu thereof a mere reference in. the statement of facts to where the same could be found in the transcript was sufficient. Byers et al. v. Thacker et al., 42 Tex. Civ. App. 492, 94 S. W. 139. And it was the duty of appellant under Rule 85 to try to obtain from appellee a written agreement for its omission. The costs incident to transcribing the original and the first, second, and third amended pleadings in the statement of facts, the cost of copying the motion to dismiss in the transcript and the cost of copying the list of items attached to the depositions of Cameron, Mrs. Leih-man, and Mrs. Porter, and of copying the assignments from J. H. Porter and wife to B. M. Porter, and from Cameron to B. M. Porter, and of the opinions and rulings of the Interstate Commerce Commission into the statement of facts will be taxed against appellant. In the absence of any showing in the record to the contrary, we must presume that the bills of exception were taken by appellant to all these matters during the trial, and it must be held to have known that this evidence would be incorporated at length therein, and having subsequently prepared, or under its direction had prepared, a statement of facts, we think it was improper to include these matters in the statement, unless appellees had refused to agree that they be omitted.

The motion to retax costs is granted to the extent above indicated, and the clerk of this court is ordered to tax the costs accordingly.