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

text:
    FAULKNER v. STATE.
    (No. 4147.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.)
    Criminal Law <&wkey;706 — Trial — Conduct of Prosecuting Attorney — Examining Witnesses.
    Where defendant’s attorneys learned that certain questions would be asked certain witnesses, seeking to impeach them, and which were clearly illegal and improper, and known to be so by the prosecuting attorney at the time and before they were asked, the trial court, though requested by defendant, refused to require the prosecuting attorney not to ask them, the asking of such questions was reversible error.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. <&wkey;706.]
    Appeal from District ,Court, Smith County; R. M. Smith, Judge.
    Ed Faulkner was convicted of rape, and he appeals.
    Reversed, and cause remanded.
    Simpson, Lasseter ’& Gentry and Jas. M. Edwards, all of Tyler, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of rape; his punishment being assessed at life imprisonment in the penitentiary.

The state’s theory was that appellant committed the offense of rape upon a girl under 15 years of age, whose name was Georgia Holloway. The identification and alibi were serious questions. Miss Holloway had never seen the defendant before the evening of the alleged rape, and the other witness, identifying appellant as going along the street, was vigorously attacked. The evidence for appellant by a number of witnesses is to the effect that he was at his mother’s hotel in Tyler, a mile or such matter from the scene of the rape. The details of these matters are deemed unnecessary to be stated.

There were several bills of exception reserved to the action of the court permitting the prosecuting officers to ask questions laying or seeking to lay a predicate for impeachment, and to show reasons why certain testimony should not be believed. Objection was interposed and sustained by the court. The questions were of a damaging character, and indicated, if answered for the state as anticipated, they would be damaging. It usually is not necessary to restate these matters. It is sufficient for the court usually to state that the manner of examining the witnesses was damaging in its nature, without hope of being answered favorably for the state. It might be mentioned here that some of the witnesses, who were boarders at the hotel, testified to defendant’s presence at the hotel, to his taking supper there, and that he was at the hotel all the time covered by the state’s case and until long afterward. Some of these witnesses were asked, by way of illustration, if they were paying any money for their board at this hotel. This is singled out as one of the matters of interrogation. State’s theory was mother of defendant was boarding the witnesses free, they being Ms witnesses. It is made evident, as we understand the bills of exception, that the answer would have been that they were paying board, and that the mother of appellant was not furnishing them free board as a means of inducing them to commit perjury. There are quite a number of these bills, and the above is but illustrative. If the bill of exceptions as signed by the judge is to be credited, this testimony is illegitimate, being asked by the state without any anticipation of favorable reply, and the theory of the defendant was, as shown by the bill of exceptions, that they were asked in this way to impugn the motive of the witnesses and thus attack them without evidence. This is unfair and illegitimate. In this way the state evidently built up, or was attempting to build up, a prejudice against the witnesses for the defendant, and thereby impair his standing before the jury. This is not proper, and in this ease, in view of all the facts-and circumstances, will be regarded as reversible error. The writer does not care to cite authorities on this character of proposition. What has been said will cover quite a number of bills of exception.

Another bill will be noticed. While the witness Steel was on the stand as a witness for defendant he stated—

“that on the evening it is alleged the defendant committed the assault, between 5 and 5:30 o’clock, he saw the prosecurtix walking north on the International & Great Northern Railroad at a point where Locust street crosses said road in company with a man; that they turned across the railroad on ¡.aid Locust street in a westerly direction (this is the point where the prosecutrix testified she walked with the defendant and turned into Locust street going west); that he did not know the man in company with the little girl; that he did not know Ed Faulkner; that on the morning the case was called for trial lie saw the defendant for the first time, and that he was not the man he saw with the little girl at the above point. On cross-examination of this witness by the state, the district attorney asked the witness the following question: ‘You knew the officers were trying to find out who committed the crime, and you didn’t tell any officer?’ To which the witness answered, ‘No sir;’ whereupon he asked, ‘You didn’t know enough to tell them, you mean you didn’t know enough then to tell them, you just now know enough? I see; I beg your pardon; when did you find it out?’ To which question th'e defendant objected, on the ground that it was a reflection on the witness, and an insinuation by the state that the witness’ testimony was fabricated, and the court sustained the objection urged by the defendant.”

Appellant excepted for several reasons. This bill was signed by the district judge. Questions of this character and matters of this sort were reserved by quite a number of bills of exception.

It is well enough to notice another bill. While the witness Cumby was testifying for the defendant, it was shown by him that he knew the appellant; that on the evening the assault is alleged to have been committed he went to the post office about 5 o’clock, and was returning home between 5 and 5:30 o’clock, walking east along Locust street in front of the fire station, which is located on the north side of Locust street; that he saw a little girl in company with a man who was carrying a tin bucket or oil can in his hand; that he did not notice what it was; that they walked diagonally across Locust street at the intersection of College and Locust streets; that he was and is well acquainted with Ed Faulkner, the defendant, and that Faulkner was not the man with the little girl whom he saw on the above occasion; that he went on in the direction of his home, and passed by Mrs. Faulkner’s, the mother of the defendant, and saw the defendant Ed Faulkner in the back yard cutting wood; that he did not know the little girl at the time, but some time after meeting them on the occasion aforesaid he saw the prosecu-trix in this case and recognized her as the little girl whom he met between 5 and 5:30 on Locust street on the evening the assault is alleged to have occurred, in the company with some man other than the defendant. On cross-examination of this witness by the district attorney, he was asked if, as constable of precinct No. 1 of Upshur county, there was not a suit filed against him and his bondsmen in which they were seeking to recover money alleged in the petition to have been misappropriated by the witness as such constable. Appellant objected for various and sundry reasons unnecessary to state, whereupon the court stated to the witness that he need not answer the question if he did not want to, whereupon the defendant’s attorney stated to the court that they were not claiming the privilege of.the witness to refuse to answer the question, but urged the objection on the ground that it was irrelevant and immaterial; that the witness could not be impeached in this manner, and because it was prejudicial to the defendant before the jury, whereupon the court sustained the objection, and the defendant excepted to the action of the district attorney in having asked the question, on the ground that it was not the proper method of impeaching the witness, and was calculated to prejudice the defendant’s defense before the jury, and the witness before the jury, and on the further ground that the defendant’s attorneys before the question was asked, and not in the presence of the jury, stated to the court that they apprehended the district attorney would want to ask the witness this or similar questions, and asked the court to instruct the district attorney that such question to the witness would be improper, and not to ask same, the court having declined to so instruct the district attorney, and permitted him in the presence of the jury to ask the foregoing question, to which action and ruling of the court defendant reserved his exceptions. This bill is signed by the judge without qualification.

Another bill of exceptions recites that the witness Oumby, on direct examination, testified that he was acquainted with the defendant, Ed Faulkner; that on the evening-the assault is alleged to have been committed he went to the post office about 5 o’clock, and was returning home between 5 and 5:30-o’clock, walking east along Locust street in front of the fire station, which is located on the north side of Locust street; that he saw a little girl in company with a man who was carrying a tin bucket or oil can in his hand; that he did not notice what it was; that they walked diagonally across Locust street at the intersection of College and Locust streets; that he was and is well acquainted with Ed Faulkner, the defendant, and that Faulkner was not the man with the little girl whom he saw on the above occasion; that he went on in the direction of home, and passed by Mrs. Faulkner’s, the mother of the defendant, and saw the defendant, Ed Faulkner, in the back yard cutting some wood; that he did not know the little girl at the time, but some time after meeting them on the occasion aforesaid he saw the prosecutrix in this ease and recognized her as the little girl whom he met between 5 and 5:30 on Locust street on the evening the assault is alleged to have occurred in company with some man-other than the defendant. On cross-examination of this witness by the state, the district attorney, over the objection of the defendant, asked the witness if, while he was-constable of precinct No. 1, Upshur county, he was not down at a certain bawdyhouse when some fellows commenced rocking the house, and if he did not crawl under the bed. Appellant urged various and sundry objections to this question, wbicb need not be stated, whereupon the court sustained the objections, and defendant excepted. Before the question was asked the witness, the attorneys for the defendant, out of the hearing of the jury, requested the court to instruct the district attorney not to ask such question, seeking to show that witness and bondsmen were sued for defalcation while witness was constable, but to confine himself to proof, if he could make it, that the witness had been prosecuted for theft or some misdemeanor involving moral turpitude. The court refused, and the district attorney was permitted to ask the question.

Another bill of exceptions, after setting out these same things in regard to this same witness, shows the district attorney asked the witness Cumby this question, “You are flunky for that hotel, this Central Hotel, aren’t you?” referring to the boarding house run by Mrs. Faulkner, the mother of defendant, and “who worked at the hotel in the same capacity you worked before, do you know?” Appellant objected for various and sundry reasons; many of them are stated in the other bills. It is stated that the purpose of the state in asking the question was to get before the jury that a certain party, who has the reputation of being a worthless fellow, and who is now on the county farm under conviction of theft, worked at this hotel, and if the witness had been forced to have given the name of said party, it would have prejudiced the defendant’s defense before the jury, and prejudiced the jury .against this witness. These were all overruled, but the objection was sustained to the district attorney asking the question.

There is one more bill of exceptions which may be mentioned. This same witness, after testifying as previously stated, that he had seen the parties, and that the man with the girl was not the defendant, the district attorney, on cross-examination, asked the witness, “Why didn’t you go to the grand jury with that information?” to which the witness answered he was not summoned. “Q. You are a citizen of Smith county? A. I claim to be. Q. And you didn’t think any more of your fellow citizens than to keep your mouth closed? A. It would have done no good. Q. Do you mean to say the grand jury of this county is so corrupt it would not have done any good for you to go in there and tell what you knew?” Appellant exceptéd for various and sundry reasons, and the court sustained the objections. Then follows a bill of exceptions with reference to the witnesses who were asked if they paid board bills at Mrs. Faulkner’s boarding house, appellant’s mother.

These are characteristic of the cross-examination of the defendant’s witnesses, in order to require the defendant to object. It is plain to-be seen that all this was damaging. The detrimental effect of this upon the jury would not need argument. The court should not have permitted the district attorney to follow this line of interrogation and conduct. In the case of Bullington v. State, 180 S. W. 679, an opinion written by Judge Harper, this character of conducting a trial was criticized and the judgment reversed. That case is mentioned because it is the latest case the writer recalls on this question. The judgment ought to be and will be reversed for this reason.

There is another question of serious import that strikes at the fundamental proposition of fair trial. It is set out in the motion for a new trial at length. The substance will be stated as follows:

The alleged offense is said to have been committed about January 24, 1916. Defendant was arrested on the following day about 6 o’clock in the evening. The sheriff, immediately after the arrest carried him in an automobile to Lindale, a station on the International & Great Northern Railway between Tyler and Mineóla, and there caught a train which left Tyler about 8 o’clock p. m., and carried defendant to Dallas for protection and safe-keeping. The district court convened on the 7th of February, 1916. Defendant was indicted on the 10th of February, 1916. The cause was on the 23d day of February set for trial on the 28th day of February, 1916, this being the first day on which the criminal docket was taken up at that term of court. Defendant was then brought from Dallas to Tyler for trial. That a condition of public sentiment in favor of summary punishment for crimes of the kind charged against the defendant without legal trial existed in that community to a very marked degree, three negroes having been summarily executed on the courthouse square in the city of Tyler, two by burning at the stake and one by hanging, within the last 12 or 14 years. It was also true that one white man about 14 years ago, charged with felony, was killed in the jail “by a vigilance committee,” but the defendant’s attorneys and relatives (he had no friends of whom either his attorneys or relatives have heard since this charge was brought against him) had not heard and did not know of any sentiment or spirit on the part of the public or any part thereof to take the law into their hands, and the defendant alleges that he verily believes that if his trial had been conducted without any effort on the part of the relatives of the prosecutrix and the attorneys for the state to arouse prejudice and public sentiment against him and his witnesses, he could have obtained a fair trial, and under the overwhelming testimony in his favor would have been acquitted, but because of the following incidents, as well as the manner of the examination of witnesses and numerous other incidents which are not related, the minds of the jury and the public were so inflamed against him and his witnesses that he could not and did not have a fair and impartial trial. The trial attracted a large crowd, and the courtroom was crowded with spectators. While the prosecutrix, a little girl, who only lacked a few days of being 12 years of age when she testified, was testifying, and after she had related the circumstances of the outrage that had been committed on her .by a man whom she had never seen before the occasion upon which she claims he assaulted her, was asked to point out the man, and she thereupon pointed to the defendant. At this juncture a brother of the prosecutrix, who was sitting four or five seats back in the courtroom, arose with the exclamation, “Lynch the son-of-a-bitch! he is mine!” and came rapidly toward the bar, wherein the defendant was sitting, by walking on the tops of the benches. One of the deputies of the sheriff caught him before he got to the defendant. The sheriff, who was standing in the bar near the jury, partly drew his pistol, all the time commanding the said brother of the prosecutrix to stop, and ordering his deputies to catch him. After the deputy caught him, the sheriff ordered him taken from the courtroom. The brother during all this time was saying something which neither the defendant nor his attorneys understood or can repeat. The presiding judge rose from his seat and stepped near the edge of the judge’s stand, but said nothing, and the said party was not fined or otherwise reprimanded for his conduct. The defendant was hurriedly taken into an anteroom until quiet and order could be restored. Por a brief time pandemonium reigned, people rushed pell mell out of the courtroom, and the situation was tense and alarming. All this occurred in the presence and hearing of the jury and the judge, and was well calculated to and did excite the jury, and cause them to think, as defendant verily believes, that public sentiment was intensely against him, and that mob violence was imminent and threatening. When this occurred the defendant had not put on any of his witnesses by whom he expected to establish his sole and only defense, to wit, an alibi; that is, that at the time the prosecutrix claimed the assault was committed, to wit, between 5:30 and 6:30 o’clock p. m. of January 24, 1916, at a place from the point where she claimed defendant got with her, which required 25 minutes to walk, this defendant was at his mother’s boarding house. Thereafter, when he put his witnesses on the stand, the state’s attorney, by questions which reflected on their honesty and integrity, prejudiced the jury against his defense, and the public who heard the questions to believe that his defense was manufactured and his witnesses were testifying from corrupt motive; that the questions were proper if the attorney expected favorable reply, or to prove the insinuation of corrupt motive implied by the questions but in view of the failure of the state in any instance to prove such implication the defendant alleges, as 'aforesaid, that he did not have a fair and impartial trial. It further seems in some instances the state had no expectation to prove such things.

After the witness Kendrick, who was no relation to defendant, but who boarded with defendant’s mother, had testified that he went into Mrs. Faulkner’s ■ room on January 24, 1916, at or about 5:50 p. m. to pay her his board, and saw the defendant sitting with his mother in her room, which, if true, absolutely proved his innocence, was asked by the state on cross-examination if he had not stated to Mrs. S. P. Gray and her daughter Nellie that he had been hired to swear in this case; also if it was not true that he had been hired, and if he was still paying board down there. Neither Mrs. Gray nor her daughter was placed on the witness stand, and no effort was made to prove that the witness was paid or received any remuneration for testifying. Mr. and Mrs. Hahn, who were also boarding with Mrs. Faulkner, and who were not related to the defendant, testified that they came out from supper not later than 6:15 p. m. of January 24, 1916, and went into Mrs. Faulkner’s room, and sat there until the family went to supper, which was about 6:30 p. m.; that the defendant was sitting in the room when they entered, and remained there until they, the family, went to supper about 6:30 p. m., which, if true, proved an absolute alibi for defendant. The state, on cross-examination of Mr. 1-Iahn, asked him if he paid board down there, and if she had not made a trip alone to Corsicana and some other point. Mr. and Mrs. Hahn were a young couple, intelligent, and would, under ordinary .circumstances, without reflection cast on them, have made a good impression on the jury. Mrs. Guinn, another boarder and no relation to the defendant, testified that she saw the defendant at his mother’s at various times from 5:50 p. m. January 24, 1916, until 7 o’clock. If her testimony was. true, defendant could not have been the man who assaulted the prosecutrix. On cross-examination of this witness the state proved that her husband was blind. She was asked what he did, and where he was, and how much board she paid. Steel, a young man of good appearance and apparently truthful, testified that on the evening the assault is-claimed to have occurred he met the prosecu-trix shortly after 5:30 p. m. walking'with a young looking, rather light-complectioned fellow at a point where the prosecutrix testified the defendant was with her; that he never saw defendant until the morning his case was set for trial, which was about two days before he testified; and that the defendant was not the man he saw with the prosecutrix, which, if true, negatived the prosecutrix’s identity of defendant. On cross-examination the state’s counsel asked him the following questions, to which lie gave tlie following ¡ answers:

“Q. You .knew tlie officers were trying to. find ■out who committed the crime, and you didn’t tell them? A. I didn’t know enough to tell.Q. You knew enough to tell the jury, didn’t you? A. I didn’t know the man. Q. You mean you didn’t know enough thenoto tell them; you just now know enough. I see; X beg your pardon; when did you find it out?”

After asking .who else lie met:

“Q. Could you see the street that evening? Q. Have you received any money in this case?”

Then follows a recitation of Will Cumby’s testimony, which is also set out in bills of exception, as was Steel’s and Mrs. Guinn’s and other witnesses’. It is unnecessary here to repeat all of that. It is recited that in the closing argument the district attorney was severe and abusive of the witnesses Kendrick, Steel, and Cumby.

The jury retired to consider their verdict at 12 m., and reported to the court at about 2:30 p. m. thereafter that they had arrived at a verdict. The courtroom was packed with people gathered to hear the verdict of the jury,' whereupon thé presiding judge called defendant’s attorneys, the district attorney, and sheriff into consultation, and it was decided for the court to ascertain what the verdict was, and, upon learning that it was a life term, ordered the sheriff to bring the defendant from the jail, but upon the suggestion of defendant’s attorneys that if he received the verdict at that time it might not satisfy public clamor, and he had better wait and receive it “when the crowd had disbursed.” The judge, after reflecting, decided such course was best, and therefore held the jury until after supper, and received the verdict when the courtroom was empty, of spectators, the public having crowded in the courtroom and waited all the afternoon to ascertain what the jury did; that for fear of some outburst against a verdict not assessing a death penalty and violence to the defendant, the sheriff immediately after the verdict was rendered spirited him away in an automobile to Canton, where he was kept until Saturday night, March 11, 1916, when he was spirited back to the jail in Tyler, and his whereabouts was kept a secret from the time of the rendition of the verdict until about Tuesday, March 14, 1916; that all during the trial the sheriff’s department, in carrying defendant to and from the jail, guarded him with several deputies; that at the beginning of the trial the sheriff,.' for fear of trouble, as defendant is informed and believes, asked the presiding judge what he thought of searching the relatives of the family before entering the courtroom as a precaution against any trouble. The court asked the sheriff if he thought he could take care of the situation, and upon the reply that he had plenty of deputies, and did not fear any trouble, the matter was dropped.

There are other matters raised in the motion for new trial as to the sufficiency of the evidence to support the verdict, etc. This question as here presented does not comport with the dignity of a court in the trial of criminal cases, where the life and liberty of a citizen is involved. It is not often in the history of Texas that such things have come before this court as having occurred during the trial of a case in open court. This court, so far as the writer is aware, has always held that a citizen in Texas is entitled to a fair trial under the law and the evidence by an impartial jury, free from obstruction or intimidation by a mob or mob spirit pervading the courtroom, and it will be an unfortunate day in Texas and its jurisprudence and to the life-loving citizenship, if mob spirit can pervade the courtroom and influence the jury in their verdict against the testimony, or even where there might be testimony sufficient to support the conviction, that would influence or tend to influence the jury against defendant on such trial. The writer does not know that he could add anything to what was said by Judge White in his great opinion in Steagald v. State, 22 Tex. App. 464, 3 S. W. 771, or to the strongly written opinion of Judge Hurt in Massey v. State, 31 Tex. Cr. R. 371, 20 S. W. 758. These were similar cases to this, and in many respects analogous. Another case came in Lax v. State, 46 Tex. Cr. R. 628, 79 S. W. 578, and Manning v. State, 37 Tex. Cr. R. 180, 39 S. W. 118.

The writer would unhesitatingly reverse this judgment if there was no other proposition to be elucidated in this record. The facts have been stated above as found in the motion for a new trial, properly verified and uncontradicted. There was and is no question of these matters and incidents occurring as stated. It occurs to the writer that to affirm the judgment on a record of this character would be sanctioning the mob spirit in the courtroom and depriving a man of a fair and just trial and without due process of law. A party may be guilty of a violation of the law as charged, yet these matters do not constitute the criterion of a fair trial in Texas. The facts must not only be sufficient, but the whole trial must be free from contaminating influences that warp the jury “from the living truth,” and which carries them away from the fair and just trial the Constitution guarantees. It must be a trial by an impartial jury under the laws of the country, and not by a jury overawed or intimidated by a mob spirit so manifested. If there was not some reason why the sheriff spirited a man away to Dallas to await an indictment by the grand jury, it seems to have been on his part a work of supererogation; but this record shows, if the statements are to be credited, that he was spirited away in order to avoid anticipated mob violence. As soon as the trial was had, he was again spirited away before the people in the community ascertained the jury’s verdict. The verdict was known to the court in the early evening before 3 o’clock, and yet tbe jury was kept out in tbe solitude of tbeir consultation room, so that tbe crowd about tbe courthouse might be “disbursed” and scattered to tbeir homes about tbe supper hour, and when this occurred tbe court came in, received tbe verdict of life sentence, and tbe defendant was again spirited away to another county and kept for some days. These statements are not questioned. Under the serious charge of rape upon a girl under 15 years of age, there must have been serious apprehension on tbe part of tbe sheriff or tbe officers would not so have acted. There is no evidence of the fact they were not capable of knowing and did not know the spirit of their community. Guilty he may be under the state’s case; innocent under his (the defendant’s). He would still be and is entitled to a fair trial before an impartial jury. It is shown here that the judge, during the excitement in the courtroom, when the outburst came, arose from his seat and stood. He did not even command silence in his court. He did not even reprimand, or imp'oke a punishment for contempt. This judgment will be reversed for this, if for no other reason.

There are exceptions to the court’s charge. Some of these charges are not technically correct and not favorable to defendant. Upon another trial these matters will be avoided by the trial court. 'We wish to enjoin again upon the trial courts the duty of charging the law of the case, and wherever the question is favorable to defendant to give an affirmative charge calling the attention of the jury to the law. Negative charges presenting a defendant’s side of the case have been criticized, and many reversals granted for so giving. The law requires the jury to be affirmatively charged as to the law of the ease, and especially as to defendant’s theories, which may be favorable to his side, either as to guilt or as to minimizing the punishment in case of guilt. These matters should be more closely guarded by the trial courts, to the end that they will not become the subject of investigation upon appeal. It is a useless consumption of time, and evasions on the law of the case, jeopardizes the conviction and often leads to reversals. It is just as easy to charge the law of the ease rightly as it is to do it negatively or evasively, and by charging correctly the chances of reversing upon those questions will not occur. In all these character of cases the trial should be held with a view of giving the defendant a fair trial under the law, to the end that his trial may be final, if he is guilty, and not to .be brought on appeal for reversal for another trial. It is not only the duty of the district judge to see that this occurs, but it is a duty devolving upon prosecuting officers to see that the citizenship of his country, when unfortunate enough to be charged with a violation of the law, shall have a fair and legal trial to the end that justice may be dispensed. It is not just nor right to obtain a conviction under doubtful methods, or by depriving a defendant of any right guaranteed to him by the Constitution or laws of this state, even though the judge or district attorney may regard them as technical. The Constitution and legislative acts have provided these matters, and it is the duty of the officials of this state in dispensing law and justice to follow the mandates and the enactments of the legislative body, and above it all to so construe those matters as to see that the accused has a fair and legal trial.

The judgment is reversed, and the cause remanded.

HARPER, J., absent.

PRENDERGAST, P. J.

(concurring). It is the duty of the prosecuting attorneys in all legitimate and proper ways to show, if they can, that an adverse witness is testifying falsely or corruptly. If this can be done by cross-examining the witness, all well and good. It is also always proper and legitimate to show that a witness is interested, biased, or prejudiced, and to prove anything which would legitimately show or tend to show this. If this can be done by cross-examination of the witness himself, so much the better. If they cannot show this by cross-examining the witness himself, they can show it by other legitimate testimony. I think some of the questions along these lines asked |soane of -appellant’s witnesses, as shown by the bills, were proper and legitimate.

But some of the bills unquestionably show that appellant’s attorneys learned that certain questions would be asked certain witnesses seeking to impeach them, which were clearly illegal and improper, and known to be so by the prosecuting attorneys at the time; and before they were asked, so informed the trial judge and besought him to instruct and require the state’s attorneys not to ask them. The court refused to do this, and the state’s attorneys asked them. In my opinion, as presented by the bills, this presents reversible error. Vick v. State, 71 Tex. Cr. R. 50, 159 S. W. 50; Bullington v. State, 180 S. W. 680. These cases are not like those of Sweeney v. State, 65 Tex. Cr. R. 596, 146 S. W. 883, and those cited therein, and a large number of other cases to the same effect. On this point I concur in the reversal.

I do not concur in all Judge DAVIDSON says and holds in his opinion. The motion for new trial, nor allegations therein, although sworn to as a pleading, does not prove itself. Besides the judgment of the court overruling it states that evidence was heard thereon, and after hearing the judge overruled it. What that evidence was is not disclosed. Hence the overruling of the motion for new trial would not present error.
      diusiFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    ALDERETE et ux. v. MOSLEY.
    (No. 630.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 28, 1916.)
    Appeal and Errob <&wkey;773(2) — Failure to File Briefs — Dismissal of Appeal.
    Rule 39 for the Courts of Civil Appeals (142 S. W. xiii) provides that appellant’s failure to file briefs, in the time and manner prescribed by law and the rules shall be ground for •dismissing the appeal for want of prosecution on appellee’s motion unless good cause is shown, why it was not done as prescribed. Transcript was filed in the Court of Appeals April 4, 1916, and the case set down for submission for November 9, 1916, but no briefs for appellants were filed within the time required, nor within the time of a stipulation in the record providing for the filing of briefs within 35 days before the cause should be submitted. November 1, 1916, appellants applied for permission to file their briefs, and the application was opposed by appellee, who filed motion to dismiss the appeal. Held, that the motion to dismiss will be granted, since the law contemplates that appellee shall be given sufficient time within which to prepare and file his answer before submission after appellants have filed briefs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108; Dec. Dig. <&wkey;> 773(2).]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Suit between I. Alderete and wife and W. D. Mosley. From the judgment, Alderete and wife appeal, and appellee moves to dismiss their appeal.
    Motion to dismiss sustained, and appeal dismissed.
    Weeks & Vowell, of El Paso, for appellants. Ware & Norcop and C. M. Wilchar, all of El Paso, for appellee.
   WALTHALL, J.

The transcript in this case was filed in this court on April 4, 1916. The case was set down for submission for November 9, 1916. No briefs for appellant have been filed in this court within the time required for filing briefs. A stipulation is found in the record which provides for the filing of briefs for appellant within 35 days before the cause is submitted in this court. The appellants did not file briefs within the time stipulated.

On November 1, 1916, appellants made application to this court for permission to file their briefs. The application was opposed by appellee on the grounds that the appellants had not filed their briefs within the time stipulated, and that appellee could not within the time before submission prepare and file his briefs. Appellee filed a motion to dismiss the appeal on the grounds stated.

Rule 39 (142 S. W. xiii) provides that a failure of appellant to file his briefs in this court in the time and in the manner prescribed by law and by the rules shall be grounds for dismissing the appeal for want of prosecution, on motion made by appellee, unless good cause is shown why it was not done in the time and manner as prescribed. Appellants have not, in our judgment, shown good cause why their briefs were not filed within the time prescribed by law, nor within the time stipulated.

The law contemplates that the appellee shall be given sufficient time within which to prepare and file his answer before submission after appellants have filed their briefs. T. & P. Ry. Co. v. Martin, 62 Tex. Civ. App. 496, 132 S. W. 834; Rojas v. Rojas, 154 S. W. 1071; State Fair of Texas v. Cowart, 165 S. W. 1197; Moon v. Dozier, 151 S. W. 656.

Appellee’s motion to dismiss the appeal is sustained, and the appeal is dismissed.


author: HALL, J.

text:
    APACHE COTTON OIL & MFG. CO. v. WATKINS & KELLY et al.
    (No. 1067.)
    (Court of Civil Appeals of Texas, Amarillo.
    Nov. 29, 1916.)
    1. Continuance <&wkey;19, 20(5) — Grounds — Absence of Counsel.
    The absence of a party or of the leading attorney is not ordinarily ground for the eontinu-,anee of a case, and does not, at least, give a party an absolute right to a continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 41, 43-48, 57; Dec. Dig. <&wkey;19,
    2. Continuance <&wkey;20(5) — Presence of Secondary Counsel. ’
    The mere fact that secondary counsel are present does not alone warrant refusal of continuance for absence of leading counsel, where those in attendance are unfamiliar with and unable properly to try the case.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 57; Dec. Dig. <@=o20(5).]
    3. Continuance &wkey;>50 — Absence of Counsel-Sufficiency of Showing.
    Where the afiidavit made on April 24th showed that leading counsel were engaged in a trial in Oklahoma, and could not return before April 27th, and that no other counsel was familiar with the case, and that the local manager of plaintiff company was necessarily absent on business, and would not return until after April 27th, and that the case' could not be tried without his testimony, while the plaintiff might not have been entitled to continuance for the term, yet, since the court did not adjourn for the term until May 5th, it should have granted postponement until April 27th as prayed.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 146; Dec. Dig. ®=»50.]
    4. Pleading <&wkey;417 — Amendment — Waiver of Errors.
    If there was error in sustaining general demurrer to the petition, plaintiff waived it by filing an amended petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. Dig. §§ 1401, 1402; Dec. Dig. &wkey;> 417.]
    5i Dismissal and Nonsuit <3=19(2) — Right to Nonsuit — Effect of Counterclaim.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 19Ó0, 1955, as to right to nonsuit after counterclaim is filed, a plaintiff is entitled to a nonsuit, notwithstanding counterclaim, as to his own cause, without dismissal of or prejudice to the defendant’s counterclaim.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 34, 35; Dec. Dig. &wkey;19(2).]

      6. Dismissal and Nonsuit <&wkey;19(2) — Right to Nonsuit — Effect of Counterclaim:.
    Since the institution of a civil action for the purpose of enforcing a claim affords no cause of action against the plaintiff, whether the claim be real or unfounded, provided the person or property of the defendant is no't seized or in some manner injuriously affected, and since charges of dishonest trading when appearing in the pleadings filed in civil cases are absolutely privileged, and the pleader cannot be held to answer in damages, where the court could not determine whether the counterclaim was based on vexatious suit, or on libel, for either of which the allegations were insufficient, since they showed merely institution of a suit with allegations implying dishonest trading, the filing of the counterclaim could not cut off plaintiff’s right to nonsuit.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 34, 35; Dec. Dig. &wkey;19(2).]
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Action by the Apache Cotton Oil & Manufacturing Company against M. P. Watldns and Ernest Kelly, as tfie~partnership of Watkins & Kelly, and E. A. Patterson, wherein Watkins & Kelly filed a cross-complaint/ Judgment on directed verdict for defendants on the original action, and for plaintiff on the cross-action, and plaintiff appeals.
    Reversed and remanded.
    Bond, Melton & Melton, of Chiekasha, Okl., and C. C. Small and J. C. Mahan, both of Wellington, for appellant. J. L. Lackey, of Claude, and R. H. Cocke, Jr., of Wellington, for appellees.
   HALL, J.

Appellant company sued M. P. Watkins and Ernest Kelly, a partnership, and E. A. Patterson, alleging in substance that on the 13th day of December, 1915, plaintiff purchased from the defendants three cars of cotton seed, two of them at $43 a ton, f. o. b. plaintiff’s mill in Chiekasha, Okl., and the third car at $39 per ton, f. o. b. cars at Dodsonville; that the seed so purchased arrived in Chiekasha December 21, 1915, but prior to its arrival plaintiff paid drafts drawn by Watkins & Kelly for the amount due under the contract, and upon inspection after the delivery of the seed found they were not clean, sound, and dry, nor free from dirt, trash, and bolls, and were not therefore in accordance with the contract of purchase; that plaintiff immediately advised Patterson and Watkins & Kelly of the condition of the seed and requested advice as to the disposition thereof; failing to receive any advice, plaintiff unloaded the same for preservation, had them appraised, and sold all of the seed to the best advantage and for the best market price obtainable; that by reason of the failure of defendants to advise plaintiff as to the dispbsition of the seed demurrage charges had been assessed against the shipment in the sum of $42, which plaintiff had paid. Plaintiff prayed for judgment for the sum of $42 demur-rage, the difference in the value of the seed, amounting to $878.32, and for protest fees, amounting to $6.06.

Watkins & Kelly answered by general and special exception, general denial, and specially that they sold the seed to Patterson, and that plaintiff refused to permit them to examine the seed, and by cross-action alleged as follows:

“And by way of cross-action these defendants aver that, when plaintiff made, published, and promulgated the allegations in its petition, plaintiff contracted with these defendants for a certain kind and quality of seed, and that the seed shipped by defendants were different in kind and quality from those called for in the contract, and were inferior to the kind called for in its contract with defendants, and charged that these defendants failed to comply with their contract of purchase and shipped to plaintiff! inferior and damaged seed instead of seed which they contracted and agreed to ship; that they thereby charge and hold out to the world that these defendants are not honest and cannot be trusted to fulfill their contracts; that they will not stand by their contracts, and therefore cannot be trusted.
“These defendants allege that, when plaintiff made, published, and promulgated that charge, it well knew that it had made no contract in regard to said cotton seed with these defendants at all, and well knew that said allegations were false and were not made in good faith, but were made for the purpose and sole and only purpose of annoying, humiliating, and injuring these defendants, and for the purpose of wrongfully and fraudulently dragging their names into a lawsuit and to publish to the world that they are not honest business, and to place them in such position that by reason thereof they cannot sell and dispose of their cotton seed, and thereby keep them from buying cotton seed for sale and to deprive them from pursuing their business as cotton seed buyers and ginmen, and that by so doing plaintiff has damaged these defendants in the sum of $10,000, which they allege is due them as injury to their good names, and for expenses necessary to defend themselves in said lawsuit so wrongfully brought.”

In addition to $10,000 damages the prayer is for 'damages for expenses of litigation.

The court sustained the general and several of the special demurrers to plaintiff’s original petition, and on the 26th day of April plaintiff filed its amended petition, which is in effect identical with the original petition, except that it is alleged that the defendant Patterson in all things acted as the agent of the defendants Watkins & Kelly. The court then sustained a general demurrer to the amended petition.

After answer filed the plaintiff moved for a postponement, which was overruled. By motion plaintiff then asked to be permitted to enter a nonsuit. This motion was resisted by the defendants and overruled by the court; whereupon plaintiff filed its first supplemental petition, excepting generally to the entire answer and specially to the paragraphs of the answer copied above.

Defendant Patterson answered, admitting that he sold the seed to plaintiff at the price mentioned in plaintiff’s petition and under | the conditions therein stated, and that he negotiated the sale as the agent of the defendants Watkins & Kelly, guaranteeing all of the seed to be sound, dry, free from dirt, trash, and bolls.

The case was tried before a jury, and, after all of the testimony had been offered, the court instructed the jury to return a verdict in favor of the defendants, Watkins & Kelly and E. A. Patterson, and to find for the plaintiff upon the cross-action of Watkins & Kelly. Verdict was returned and judgment entered accordingly.

The first assignment is based upon the action of the court in overruling the plaintiff’s motion for a postponement of the trial. It appears in the motion that Adrian Melton, of the law firm of Bond, Melton & Melton, who resided in Oklahoma, had exclusive control and management of the cause since and long prior to the filing of the suit; that no other member of the firm was familiar with it or had anything whatever, to do with the prosecution thereof; that 'one member of the firm was in Washington City, and had been for some time; that the other member was engaged at the time the motion was filed in the argument of cases before the Supreme Court of Oklahoma; that Adrian Melton, the member of said firm who had handled the case, was in attendance upon the trial of a ease at McAlester, Okl., which had been set long prior to the setting of this case in the district court at Wellington; that Melton was unable to obtain other counsel to try his said case at McAlester, which had been pending for more than two years, and that he could not obtain a continuance of said cause and could not reach Wellington, Tex., from McAlester, Okl., before the 27th day of April; that Orin Ashton, the local manager of the Apache Cotton Oil & Manufacturing Company was the one person connected with plaintiff who was familiar with the transactions out of which this lawsuit had arisen; that it was impossible to try the same without his testimony; that the facts to which he would testify could not be proved by any other witness; that he left the city of Chickasha on April 18th and could not return until after the 27th; that he had no knowledge of the setting of said cause at the time he left Chickasha, and was absent attending to other business of the plaintiff which required and demanded his personal attention, and which he could not abandon without great loss to his company and inconvenience to himself. The prayer was for the postponement of the case until after the 27th day of April, and was filed and presented on the 24th day of April, and promptly overruled by the court. The general rule is that the absence of a party or of the leading attorney is not ordinarily grounds for the continuance of a case, and does not at least give a party an absolute right to a continuance. If we take the statements in the application as true, a good excuse has been shown for the absence of Adrian Melton, and we must further conclude that his presence was necessary, and that such absence was not anticipated. The fact that other counsel were present does not deprive the application of the equity in it, since it appears that local counsel were not familiar with the facts and were in no condition to try the case in the absence of Orin Ashton, the manager of the mill. It is not shown that the ease was set for trial with the consent of plaintiff. We do not hold that under all the circumstances the showing entitled the plaintiff to a continuance for the term, but, since the court did not adjourn for the term until the 5th day of May, we think the postponement, as requested, should have been granted.

The second assignment complains of the action of the court in sustaining the general demurrer to plaintiff’s original petition. If this was error, it was waived when plaintiff filed an amended pleading. The effect of filing an amended pleading is to confess merit in the exceptions urged to the original. This assignment will be overruled. S. A. & G. S. Ry. Co. v. S. A. & G. Ry. Co., 76 S. W. 782; Barrett v. Ind. Tel. Co., 65 S. W. 1128.

By the third assignment it is insisted that the court erred in overruling the plaintiff’s motion for nonsuit. As we understand the motion, plaintiff did not attempt to dismiss the entire cause, but merely asked for permission to abandon its cause of action against the defendants. Vernon’s Sayles’ Civil Statutes, arts. 1900 and 1955, relating to this question, are as follows:

Article 1900: “Where the defendant has filed a counterclaim seeking affirmative relief, the plaintiff shall not be permitted, by a discontinuance of his suit, to prejudice the right of the defendant to be heard on such counterclaim.”
Article 1955: “At any time before the jury have retired, the plaintiff may take a nonsuit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief,” etc.

Appellees insist upon the broad proposition that, when affirmative relief is sought by the defendant, the court should not grant' plaintiff a nonsuit. The proposition is sound in cases where the cross-action or plea in reconvention relates to the subject-matter of plaintiff’s suit. In United Motor Co. v. Hendricks, 168 S. W. 878, the intervener was not permitted to take a nonsuit, but that is a case where plaintiff sought to foreclose a mechanic’s lien. Intervener set up a chattel mortgage upon the property, and upon this plea plaintiff joined issue, praying that its lien be declared superior to the lien asserted by intervener.

In Dunlap v. Southerlin, 63 Tex. 38, where the validity and effect of a judgment was in issue as between the parties to it and those claiming .under it, and where it was sought to cancel the judgment, the Supreme Court held that plaintiff would not be allowed to enter a nonsuit. To the same effect is the case of Jackson v. Furst, Edwards & Co., 154 S. W. 243, where plaintiff sued upon a note and defendant alleged that the note was a mere tentative settlement, claiming credits in excess of the amount thereof, and prayed for its cancellation.

In Leverette v. Rice, 151 S. W. 594, plaintiff sued for the price of land. Defendant reconvened, praying for the cancellation of the contract, on the ground of fraud and misrepresentation, and it was held that plaintiff could not dismiss his action without prejudice. The instant case, however, does not come .under the rule announced in the authorities cited. The cross-action of appel-lee, if maintainable at all, could have been prosecuted whether the plaintiff took a non-suit or continued in the case. We think the correct rule applicable to cases of this kind is announced by the Supreme Court in Short v. Hepburn, 89 Tex. 622, 35 S. W. 1056. That was a contest, involving the title to land; the pleadings of both parties being in the form of an action of trespass to try title. The Court of Civil Appeals certified to the Supreme Court the inquiry if the plaintiff could take a nonsuit, dismiss the cause, and thereby deny to the defendant the right to be heard on the cross-bill. The Supreme Court replied that the plaintiff had the right to dismiss his own case, but this could not operate to discontinue the cross-action of the defendant if the allegations of the cross-bill were sufficient to entitle him to recover, and this seems to be the true rule. Burford v. Burford, 40 S. W. 602; Blank v. Robertson, 34 Tex. Civ. App. 387, 78 S. W. 564; Smith v. Wilson, 18 Tex. Civ. App. 24, 44 S. W. 556; Jungbecker v. Huber, 101 Tex. 148, 105 S. W. 487; Jones v. Wagner, 141 S. W. 280. It is further held that, where the answer does not set up facts sufficient to constitute a cause of action, plaintiff’s right to discontinue cannot be denied. Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427; Peters v. Chandler, 51 S. W. 281; Clevenger v. Cariker, 50 Tex. Civ. App. 562, 110 S. W. 796.

This brings us to the consideration of the question as to whether the allegations' of the answer and cross-action were good against the general demurrer. We are unable to decide whether defendants were seeking to recover damages because of the institution of an unfounded and vexatious suit or whether the ground of their damages is one for libel. If the former, the answer was ■unquestionably subject to a general demurrer. The institution of a civil action for the purpose of enforcing a claim affords no cause of action against the plaintiff, whether the claim be real or unfounded, provided the person or property of the defendant is, not seized or in some manner injuriously affected. Vance v. Lindsey, 60 Tex. 286; Johnson v. King, 64 Tex. 226; Smith v. Adams, 27 Tex. 28; Haldeman v. Chambers, 19 Tex. 1; Runge v. Franklin, 72 Tex. 585, 10 S. W. 721, 3 L. R. A. 417, 13 Am. St. Rep. 833; Biering v. First National Bank, 69 Tex. 599, 7 S. W. 90. The case of Runge v. Franklin, supra, established the rule that charges of the kind complained of in this case, when appearing in the pleadings filed in civil cases, are absolutely privileged, and the pleader cannot be held to answer in damages. It follows from what has been said that the demurrer to the cross-action should have been sustained. Since this is the only affirmative relief claimed by defendants, plaintiff should have been permitted to take a nonsuit.

In view of what has been said above, it is not necessary to consider the remaining assignments, which relate to the court’s action in overruling plaintiff’s special exceptions to the answer.

For the errors indicated, the judgment is reversed, and the cause remanded.
      <B=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    ROUNDS v. COLEMAN.
    (No. 1060.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 22, 1916.)
    1. Wills &wkey;>302(2) — Contest — Evidence— Handweiting.
    Evidence, in a will contest, held to show that the will propounded for probate was in the handwriting of the testatrix.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. 5 701; Dec. Dig. <&wkey;302(2).]
    2. Evidence <&wkey;271(lG) — Will Contest-Declaration — Handweiting.
    In a will contest the contestant’s declaration to proponent, when she first saw the will, that it did not look like her mother’s handwriting, and that she did not know her mother could write like that, was not evidence that it was not her handwriting, as contestant could not prove that fact by self-serving declarations at some other time or place.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1082; Dec. Dig. &wkey;271(10).j
    3. Wills <@=»163(2) — Undue Influence— PRESUMPTION AND BUKDEN OF PROOF.
    Where an antecedent fiduciary relation existed between the testator and the beneficiary, a court of equity will presume confidence placed and influence exerted, but otherwise such relation and influence must be proved by the contestant.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 390-394; Dec. Dig. &wkey;163(2).j
    4. Wills &wkey;>163(2) — Undue Influence — Presumption — Fiduciary Relations.
    Though testatrix lived with her granddaughter and her husband, and the husband acted as her agent in looking out for land upon which she had filed and in paying the interest due the state and in depositing money in a bank to her credit, and was to use the grass and feed on the land for a specified consideration, there was no such fiduciary relation as would raise the presumption that there was undue influence exerted by the granddaughter, the sole beneficiary under the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 390-394; Dec. Dig. &wkey;163(2).]
    5. Wills <&wkey;163(l) — Contest—Burden of Proof.
    On the contest of a will on the ground of undue influence, where there was no such fiduciary relation as to raise the presumption of undue influence by a granddaughter, the sole beneficiary, the burden of establishing undue influence was on the contestant.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 388, 389, 399, 400; Dec. Dig. &wkey; 163(1).]
    6. Wills <&wkey;55(l) — Testamentary Capacity —SUFFICIENCY OP EVIDENCE.
    Evidence of testamentary capacity held sufficient to discharge the proponent’s burden of formal proof, under Rev. Oiv. St. art. 3271.
    [Ed. Note, — For other cases, see Wills, Gent. Dig. §§ 137-140, 148-150, 161; Dec. Dig. &wkey; 55(1).]
    7. Wills <&wkey;47 — Undue Influence — Evidence.
    On the issue of undue influence, the physical and mental weakness of the testatrix, her age, etc., might be considered in determining whether her will was of suflicient strength to make the instrument her act and deed.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. § 94; Dee. Dig. <§¿>47.]
    8. Wills <&wkey;386 — Contest—Appeal—Question of Fact.
    On appeal from a directed verdict for the contestee and proponent, the court is not to determine whether a verdict for contestant should be permitted to stand, but whether the evidence was sufficient to require a submission of the issue of undue influence to the jury.
    [Ed. Note. — For other eases, see Wills, Gent. Dig. § 859; Dee. Dig. @=>386.]
    9. Wills @=>324(3) — Contest — Undue Influence-Question foe Jury.
    The question of undue influence exerted by proponent held for the jury.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. § 769; Dec. Dig. @¿324(3).]
    10. Wills <&wkey;155(3) — Undue Influence — Persuasion.
    Persuasion, entreaty, and the like are not alone suflicient to set aside a will on the ground of undue influence.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 377, 378; Dec. Dig. &wkey;155(3).j
    11. Wills <&wkey;158 — Undue Influence-Time. Undue influence must be exerted at the time of making the will.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. ]i§ 385, 386; Dec. Dig. @=>158.]
    12. Wills @=>164(1) — Contest — Undue Influence-Evidence.
    The financial condition of the beneficiary, especially where the facts show that the testatrix knew, or should have known, thereof, in a case dependent upon circumstances to establish the beneficiary’s undue influence, is admissible.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 403, 407, 408, 413; Dec. Dig. &wkey; 164(1).]
    Error from District Court, Collingsworth. County; J. A. Nabers, Judge.
    Will contest by Adelia T. Bounds against S. D. , Coleman, proponent of the will of Equilla Wood, deceased. Judgment for con-testee, and contestant brings error.
    Reversed and remanded.
    J. M. Worten, of Pawhuska, Okl., R. H. Templeton, of Wellington, and J. Marvin Jones, of Amarillo, for appellant. R. H. Cocke, Jr., of Wellington, and J. L. Lackey, of Claude, for appellee.
   HUFF, C. J.

The proponent, Mrs. S. L. Coleman, offered and had probated the following will, as the last will and testament of Equilla Wood:

“I, Equilla Wood, do hereby make my last will that Sarah Leon Coleman and her heirs in body shall own all I possess at my death, consisting of land and house and house furniture, except one ($100) dollars in money to be paid to Adelia Temeta Rounds. I also give the said Sarah Leon Coleman power to collect all debts that is owing me and pay all that is against me at my death.
“This the 14 day of January, 1912.
“Equilla Woods.
“Witness:
“C. C. Ralls.
“Z. R. Ralls.”

Adelia T. Rounds contested the will on the following grounds: (1) That she was entitled to the entire estate of Equilla Woods as the only living daughter of Mrs. Woods; (2) that the writing was not the will of Mrs. Woods; (3) that the will, if anything, is the will of S. L. Coleman, the beneficiary thereof, and her husband, J. S. Coleman, written by reason of their undue influence, exerted upon Mrs. Woods, who was a very old woman, about 80 years of age, feeble in both mind and body at the time the instrument was written; (4) that deceased, at the time of the execution of the will, was residing with S. L. Coleman and her husband, J. S. Coloman, and was mentally incapacitated to devise her property or execute the instrument.

The will was admitted to probate in the county court, from which judgment appeal was prosecuted to the district court of Col-lingsworth county, where, upon trial to a jury, the trial court, upon motion of the defendant in error, instructed a verdict for her. The grounds of the motion, requesting such instructions, are: Because (a) all the evidence conclusively shows the will to be the last will and testament of Equilla Woods; (b) that the contestant has failed to show any undue influence exercised by any person whatever upon the mind of Mrs. Woods, oi that she was in any way or manner induced to make the will by contestee or J. S. Coleman, or any person, directly or indirectly; (c) that the burden of proof was on the contestant to show that Mrs. Woods was unduly influenced to make the will she did make, and that such influence operated upon the mind of the testatrix at the time of making the same.

The assignments present that the evidence is suflicient to raise the issue of undue influence, fraud, and incapacity of the testatrix, and therefore it was error to take the case from the jury. Mrs. Woods was the mother of plaintiff in error, Mrs. Rounds, and Mrs. Rounds is the mother of Mrs. Coleman. Mrs. Woods, therefore, by will, gave the property to her granddaughter. It appeared to be an uncontroverted fact that Mrs. Woods, at the time of her death had been a widow for more titan 40 years; that she lived some 22 years with her daughter, Mrs. Rounds, making her daughter’s home her home; that she at that time had no property, except, perhaps, some little household effects. Mrs. Rounds was married twice, and while living with her first husband she and he were in moderate circumstances and fairly good livers. About three years after the death of her first husband she remarried. This marriage was an unhappy one, and she was thereafter divorced from her second husband. In the meantime defendant in error and J. S. Coleman married and moved to Collings-worth county, where they filed on school land and acquired other property. Some 20 years or more previous to Mrs. Woods’ death she went to live with Mrs. Coleman. Plaintiff testifies that when Mrs. Woods left her home, it was only to make a visit to her daughter, taking with her only á change of clothing, leaving her bed and the like with the plaintiff. Mrs. Woods never returned to plaintiff’s home, but continued to reside with defendant until her death. At the time Mrs. Wioods went to defendant’s home she had no property of any kind except the household goods she left with her daughter. After going to Coleman’s home she was induced by Coleman, so it may be inferred, to file on one section of land (the record does not give the date), and for the recited consideration of $500 she purchased another section (the date not given). There are two deeds in evidence, one dated April, 1910, and one September 10, 1906, by Mrs. Woods to Mrs. Coleman, to all of one section, except 80 acres out of the southwest corner, and the south half of the other section, for a recited consideration, in one of the deeds, of $500, and in the other $1,000. There are facts which will warrant the inference that Coleman used the grass on these sections and paid for its use by paying the interest due the state on - the land for Mrs. Woods; that' he generally attended to or looked after the upkeep of the property for her. However, it appears that tenants who rented the land did so from Mrs. Woods, and paid the rent to her, especially on the cotton crop, but the feed grown on the place was taken charge of by Coleman, but just how rased is not shown. Mrs. Woods, it appears, during the time had a separate bank account, and checked on it; wrote letters with reference to it to the bank. It is also infer-able that Coleman also made some of the deposits in her name, and remitted money to the state on interest for her. The evidence on these points may be said to be indefinite, but shows generally that Coleman had a general oversight in caring for the property. Mrs. Woods appears to have lived with the Colemans as one of the family, helping in the household duties. During these years a correspondence was kept up between Mrs. Woods and her daughter, Mrs. Rounds, who lived in Oklahoma. Mrs. Rounds visited her mother on several occasions, but in order to do so she obtained the money for expenses either from Mrs. Wjoods or the Colemans. The evidence will warrant the finding that up to 1910 or 1911, Mrs. Woods expressed repeatedly a purpose and desire to give the land in question to Mrs. Rounds, and some time in 1911 she requested Mr. Coleman to get a justice of the peace to draw her will. This Coleman did, and the justice of the peace drew her will, in which the testimony shows the property in question was bequeathed to Mrs. Rounds. The justice of the peace and J. S. Coleman witnessed it at her request. About a year after the will first above set out, Mr. Coleman, the husband of proponent, became insane and was placed in an asylum. There is some evidence that Mrs. Woods was worried over his condition and expressed a purpose to leave the property to Mrs. Coleman and her children. The evidence will warrant the finding that she was fond of both families. So matters stood when the last will was made, except the infirm condition of Coleman’s mind is not made to appear at that time by the evidence. The will was written by Mrs. Woods in her own handwriting. At the time she wrote it she was about 82 years old, and there is some evidence that she was childish, forgetful, and' subject to some kind of spells; Mrs. Ralls saying bilious colic. There may be some evidence that she would be unconscious for a time after one of these attacks.

The appellant contends the evidence shows that the last will was kept secret by Mrs. Coleman, and there may be some evidence authorizing the inference. There are some facts which tend to show that Mrs. Woods desired her daughter to move on the land while she was alive, but that Mr. Coleman in some measure opposed it; also that it had been discussed by Mrs. Coleman and others whether a will to Mr. Coleman would be good as against the plaintiff, and whether, if so made, plaintiff would contest it. There are a number of facts and circumstances which contestant urges as showing that the testatrix was feeble in mind and body and under the influence of Coleman and wife, and that in fact she never intended to give the granddaughter all her property to the exclusion of the daughter, but that she was unduly influenced thereto. We do not feel warranted in setting out all these circumstances or in discussing their probative force, or the lack of it.

In this connection we will state we do not think there is any evidence upon which a jury would have been warranted in finding that the will was not in ■ the handwriting of Mrs. Woods. It bears date January 14, or 22, 1912. Either 22 is written over the 14 or 14 over the 22, as shown by the testimony in this record. It was evidently sought to be shown by plaintiff in the trial court that the two dates or the body are not in the same handwriting. Every witness who testified on the ease gave their opinion that they were the same, except, perhaps, one, but on his cross-examination he leaves his testimony in such shape it is entitled to no probative force. Every one who knew Mrs. Woods’ handwriting on testifying said the will was in her handwriting. The two witnesses to the will testified that in their presence Mrs. Woods told them she signed it, or that she did sign it in their presence, and requested them to witness it; that she had gone into some other portion of the house, procured the will and brought it to the room where they were. These two witnesses were on a visit to Colemans, and were preparing to depart for their homes when the will was presented. Mrs. Ralls, one of the subscribing witnesses, was a half-sister of J. S. Coleman, and her husband was the other witness. The declaration of Mrs. Rounds to Mrs. Coleman, when she first saw the will, that it did not look like her mother’s handwriting, and that she did not know that her mother could write like that, is not evidence in this ease that it was not her writing. She could not establish that fact by proving her self-serving declaration at some other time or place. The evidence in this ease is conclusive to our mind that Mrs. Woods wrote the will; in fact, there is no pleading of forgery, or that it was not in her handwriting.

The first question we shall consider, and one suggested by the argument of appellant, is: Upon whom does the burden of proof rest under the facts of this case? It is urged that Coleman and his wife stood in a confidential relation with the testatrix, and that the wife was the principal beneficiary under the will, which is sufficient to cast the burden on Mrs. Coleman t.o show there was no undue influence, it has been held by the courts of this state, where the relation of attorney and client exists and during the existence of such relationship the attorney purchases, such purchase is deemed to be invalid, and that it is therefore incumbent upon the attorney to show affirmatively the absence of undue influence. Cooper v. Lee, 75 Tex. 114, 12 S. W. 483. This rule is applied with reference to other fiduciary relationships. Tenison v. Patton, 95 Tex. 284, 67 S. W. 92; Nabours v. McCord, 100 Tex. 456, 100 S. W. 1152; However, in Re Burns Estate, 21 Tex. Civ. App. 512, 52. S. W. 98, by the Court of Civil Appeals of the Fourth District, in which a writ of error was denied, it is held the burden of proving that undue influence operated upon the will in question lies on the party who alleges it. The beneficiary in that case was the attorney of the testator, and it is held, in the absence of other evidence, such relationship will not warrant the presumption of undue influence. While the case cited appears to announce the rule stated, and cites cases supporting the general rule that the burden is on the one asserting undue influence, a careful reading of the case, we believe, reveals that the court found sufficient evidence in the record which negatived undue influence, and that there was no evidence showing its exercise. Thereby the burden of proof in either event was met and discharged.

“Where there is no coercion amounting to duress, but a transaction is the result of a moral, social, or domestic force, exerted upon a party controlling the free action of his will, and preventing any true consent, equity may relieve against the transaction on the ground of undue influence, even though there may be no invalidity at law. In the vast majority of instances, undue influence naturally has a field to work upon in the condition or circumstances of the person influenced, which render him peculiarly susceptible and yielding — his dependent or fiduciary relation towards the one exerting the influence, his mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the like. All these circumstances, however, are incidental and not essential. Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted. Where there is no such fiduciary relation the confidence and influence must be proved by satisfactory extrinsic evidence. The rules of equity and the remedies which it bestows are exactly the same in each of these two cases. The doctrine of equity concerning undue influence is very broad and is based upon principle's of the highest morality. It reaches every case and grants relief where influence is acquired and abused, or where confidence is reposed and betrayed. It is specially active and searching in dealing with gifts but is applied when necessary to conveyances, contracts, executory and executive, and wills.” 2 Pomeroy, Eq. Jurisprudence, § 951.

The Missouri court announces the rule that upon proof of antecedent fiduciary relations between the testator and the principal beneficiary under the will, “the law indulges the presumption that undue influence has been used.” Mowry v. Norman, 204 Mo. 173, 103 S. W. 15; Ryan v. Rutledge, 187 S. W. 877. Under the facts of this ease, and under early authorities of this state, we believe no such fiduciary relation existed between Mrs. Woods and Mrs. Coleman as will bring into operation the presumption that undue influence had been used. At most, there appears only an agency of John Coleman to look after the land, keep the place up, and assist in paying the interest due on the land due the state; to deposit money in the bank to the credit of Mrs. Woods, and perhaps a contract to use the grass and feed on the land, for a certain specified consideration. We do not think this will establish such fiduciary relation as will raise the presumption that there was undue influence, and that it was used by the beneficiary under the will. The testatrix was the grandmother of Mrs. Coleman, and the fact that she gave to her grandchild the land will not itself raise the presumption of undue influence. Their surroundings and the relationship do not present any such presumption, but are equally as suggestive that the act influenced was the effect of kindness and general conduct for good towards the grandmother, who for 20 years had made her home with her grandchild, and with whom and by the aid of whom and her husband she had been enabled to acquire the very land in question. Millican v. Millican, 24 Tex. 426 et seq; Saufley v. Jackson, 16 Tex. 584; Beville v. Jones, 74 Tex. 148, 11 S. W. 1128. The acts of the husband in caring for and attending to the outdoor duties concerning the land are not such as to establish the fiduciary relation which will “be thought a case of agency, of'a character which awakens the jealous scrutiny of a court of equity into the dealings of the parties.” Millican v. Millican, 24 Tex. 451. The evidence in this case indicates that Mrs. Woods'-got the rent from the tenants on the cotton which was paid to her by them, while the feed and grass was used and controlled by Coleman, evidently under an agreement with Mrs. Woods. The burden, therefore, we think, remained with the contestant to show undue influence, and that it was used in obtaining the will.

The testimony in this case is sufficient as to Mrs. Woods’ testamentary capacity at the time she made the will, in the absence of undue influence. The evidence shows she wrote it and called upon the witnesses to sign, as witnesses; and the defendant offered evidence that at that time, before and after that date, she was a bright, sprightly old lady. The testimony of Mrs. Rounds to the effect that she was feeble, childish, and forgetful, and by others that she had some sort of spells, and at one time was unconscious, does not show that she did not have sufficient understanding, at the time the will was made, to know the property bequeathed and to whom it was so given. The spells spoken of are shown to have been occasioned by some sort of indigestion or bilious colic. The evidence was sufficient to discharge the burden of formal proof by the proponent to probate the will under article 3271, R. C. S., Warren v. Ellis, 137 S. W. 1182; Beazley v. Denson, 40 Tex. 416; Prather v. McClelland, 26 S. W. 657.

To show undue influence rested upon the contestant in this case; and, as part of the evidence on that question, the physical or mental weakness of the testatrix, her age, and the like, may be taken into consideration as to whether her will was of sufficient strength to make the instrument her act and deed, or whether it was the act of some one else, who may have dominated it so that it was not her free and voluntary act. Gallagher v. Neilson, 121 S. W. 564.

Upon the facts offered in evidence, whether weak or inconclusive, under the rule in this state, we cannot hold as a question of law there was no evidence to be considered by the jury. Campbell v. Barrera, 32 S. W. 724; Trezevant v. Rains, 85 Tex. 329, 23 S. W. 890; Brown v. Pridgen, 56 Tex. 127. We are not to determine upon this appeal whether a verdict for contestant should be permitted to stand, but whether the evidence was sufficient to require a submission of the issues to the jury. It is not for us, at this time, to determine what the trial court should do in case of a verdict in favor of the contestant. Warren v. Ellis, 137 S. W. 1182.

We have examined the cases of Patterson v. Lamp, 21 Tex. Civ. App. 512, 52 S. W. 98, and Morrison v. Thomas, 99 Tex. 248, 89 S. W. 409, cited by appellee, together with many others, and without attempting to draw distinctions, we have reached the conclusion the issue should have gone to the jury. It has been said a will cannot be set aside on proof of facts, which at most do no more than show an opportunity to exercise undue influence which may have existed, or raise a bare suspicion that such influence may have been used. Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606; Barry v. Graciette, 71 S. W. 309. That a daughter did not receive as much as she thought she ought under the will does not raise a presumption of undue influence. Helsley v. Moss, 52 Tex. Civ. App. 57, 113 S. W. 599. Persuasion, entreaty, and the like alone are not sufficient. Patterson v. Lamp, 21 Tex. Civ. App. 512, 52 S. W. 98; Powell v. Powell, 170 S. W. 111. Undue influence must be exercised at the time of making the will (Holt v. Guerguin, 156 S. W. 581, and authorities supra); but all these things and others, if they point to undue influence, when taken together, may or may not be sufficient to establish that fact. The circumstances surrounding the testatrix at the time of making the will, her relation to the principal beneficiary, and all the conditions áre to be looked into; all the facts and circumstances must be examined to ascertain whether her liberty of free agency has been destroyed, or the will of the testatrix substituted by anqther. Goodloe v. Goodloe, 47 Tex. Civ. App. 493, 105 S. W. 533. We quote from Holt v. Guerguin, 156 S. W. 581, the rule which controls this character of case:

“As said by the Supreme Court of Massachusetts, in Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275, 55 Am. Rep. 479: ‘It is often difficult to show by direct proof the undue influence, and direct evidence of the actual exercise of such influence can hardly be expected. Oftentimes the means of keeping the influence out of sight are many and easy of application, and yet the result may be clearly apparent. Delafield v. Parish, 25 N. Y. 9. The fact of the influence exerted is more often gathered from all the circumstances surrounding the donor, his health, age, and mental condition, how far he was dependent upon and subject to the control of the person benefited, the opportunity which he had to exercise his influence, and the disposition of the donor to be subject to it. In addition the fact of influence by the donee over the donor, having been established, it is not necessary to show by absolute evidence that this was exercised by the donee at the time the gift was made. Undue influence must be exercised in relation to the gift made, and not as to other transactions, in order to invalidate a gift thus obtained. But if the jury find from the evidence that, at or about the time when the gift was made, the alleged donor was, in other im-jiortant particulars, so under the influence of the person receiving the gift that, as to them, he was not a free agent, but was acting under undue influence, the circumstances may be such as fairly to warrant the conclusion, from the absence of any evidence bearing directly upon acts done when the alleged gift was actually made, that in relation to that also the same undue influence was exerted.’ ”

While there is no direct evidence in this case to show that Mrs. Coleman exercised undue influence, yet the evidence and circumstances-are sufficient to call for the judgment of the jury.

The seventh assignment of error is not properly briefed; but, as the case is to be reversed, it is proper to flotice it. The financial condition of the beneficiary, especially where the facts are sufficient to show that the testatrix knew, or should have known, thereof, in a case dependent upon circumstances to establish undue influence, is admissible in evidence. Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441, 40 Cyc. 1034, note 20.

The case will be reversed and remanded, for the reasons above stated.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    HOLLIE v. TAYLOR et al.
    (No. 7638.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1916.)
    1. Homestead <&wkey; 140 — Husband and Wife— Community Property — Effect.
    A husband’s abandonment of his wife without cause or excuse, continuing until her death, forfeits all rights of homestead in the land which the wife owned at her death; and this is true notwithstanding' it is community property, and the abandonment does not operate to sever marital relations.
    [Ed. Note.- — For other cases, see Homestead, Cent. Dig. §§ 259, 260; Dec. Dig. &wkey;140J
    2. Husband and Wife @=>273(4) — Community. Property — Right of Surviving Husband — Debt—Lien.
    Where a.husband abandoned his wife without cause, which abandonment continued until her death, and the wife, after the abandonment and with her own means acquired a house and lot which was the only property owned by either of them, and died intestate, and there was no administration or necessity therefor, the amount which defendants, the wife’s sister and her husband, were allowed for nursing and caring for the wife in her last illness was a community debt, so that the trial court properly decreed that the husband should recover the title and possession of the property charged with the community debt, with an order for its sale unless he voluntarily paid the amount of the lien within 60 days after the judgment.
    . [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1012; Dec. Dig. &wkey;> 273(4).] ,
    3. Trespass to Try Title <&wkey;>53 — Recovery— Rent — Sufficiency of Evidence.
    In trespass to try title, held, on the evidence, that the trial court did not err in not awarding the plaintiff a judgment for the amount of rent claimed by him..
    [Ed. Note. — For other cases, see Trespass to Try Title,. Cent. Dig. §§ 85, 86; Dec. Dig. &wkey;> 53.]
    Appeal from District Court, Kaufman County; L. F. Hawkins, Judge.
    Trespass to try title by Jack Hollie against Stella Taylor and another. Judgment for defendants making it a lien on the property and ordering a foreclosure unless plaintiff pay the amount within 60 days from the judgment, motion for new trial overruled, and plaintiff appeals.
    Affirmed.
    W. P. Williams, of Terrell, and Lee R. Stroud, of Kaufman, for appellant. Bum-pass & Crumbaugh, of Terrell, for appellees.
   TALBOT, J.

This is an action of trespass to try title brought by the appellant, Jack Hollie, against the appellees, Stella Taylor and her husband, Anderson Taylor, to recover a house and lot situated in the city of Terrell, Kaufman county, Tex. The appellant alleged, among other things, that he was legally married to Susan Hollie in the year 1892, and continued to live with her as her husband until she departed this life on the 27th day of January, 1914; that the said Susan Hollie died intestate, without children or their descendants, and leaving appellant as her surviving husband; that the property in controversy was community property of appellant, Jack Hollie, and Susan Hollie, and constituted their homestead before the death of the said Susan Hollie, and continued to be the homestead of appellant after her death. Appellant prayed that he have judgment for the title and possession of the property sued for, and for all the uses and benefits thereof to which he was entitled by reason of the homestead character of said property. He also prayed for a writ of restitution, for rents, damages, and costs of suit.

The appellees pleaded a general demurrer, general denial, plea of not guilty, and specially that plaintiff and one Susan Hollie were husband and wife until about the year 1904, when plaintiff abandoned and deserted said Susan Hollie and refused to contribute to her support; that after she was abandoned by her said husband said Susan Hollie for many years made her home with defendants, defendant Stella Taylor being her sister; that defendants gave said Susan Hollie a home, and contributed largely to her support from the time of her abandonment to her death, about January 27, 1914; that said Susan Hollie was in bad health for years prior to her death; that during said time defendants furnished her with medical attention, medicines, and otherwise eared for her; that during her last illness, which lasted from October, 1913, to January, 1914, defendants attended to and waited on her and furnished her medical attention; that during hier last illnes ithe said Susan Hollie told these defendants she wanted to give the property in controversy to her sister, defendant Stella Taylor; that under a parol gift of said land to said defendant Stella Taylor she went into possession of said premises and made valuable improvements thereon; that at the time plaintiff abandoned his wife they had no property, except a little personal property of the value of $500, which they alleged plaintiff had appropriated to his own use and benefit; that about the year 1009 Susan Hollie purchased the lands in controversy with her separate and individual funds earned by her after her desertion and abandonment by plaintiff, together with money advanced to her by these defendants; that plaintiff contributed nothing towards the purchase of said property, and at the time it was purchased, and long before, he had permanently abandoned and deserted his said wife; further, that defendants, jointly with Susan Hollie, purchased said property, and, being ignorant of the forms of law, did not know it was necessary to have deed made jointly to them and said Susan Hollie, but had the deed made to said Susan Hollie. Further, defendants alleged that, if not permitted to recover under the parol gift, or as joint owners of the land, then as they, had nursed and cared for Susan Hollie during her last illness, furnished her medicines, food, and lodging, had after her death caused her to be buried in a decent and orderly manner, and paid all the bills therefor, that they have judgment for $100 for medicines and doctor bills paid for said Susan Hollie during her last sickness, for $100 for funeral expenses paid, and $150 as a reasonable charge for care and attention; that, if the relief prayed for as above be denied, they have judgment for the amount paid out by them for the last sickness of the said Susan Hollie, undertaker’s and funeral expenses, and the amount due them for nursing and attention, aggregating the sum of $350; that said sum be declared a lien on said property and the same to be decreed to be foreclosed. The court on a trial without a jury denied appellees all the relief prayed for, except that for expenses for nursing and earing for the said Susan Hollie in her last illness, funeral expenses, etc. For those things ap-pellees were allowed the sum of $111.50, which was decreed to be a community debt due by the estate of Jack and Susan Hollie. It was further decreed that, as plaintiff had abandoned said Susan Hollie, he had no homestead rights in said property, that the judgment awarded appellees should be a lien upon said property, and ordered that same be foreclosed, unless said plaintiff should pay said sum of $111.50 within 60 days from date of said judgment. Appellant filed a motion for a new trial, which was overruled, and he perfected an appeal to this court.

The appellant makes in this court the following contention:

“The court should have given the plaintiff, Jack Hollie, a judgment for the land in controversy as his homestead inherited from his deceased wife, Susan Hollie, free from all claims and debts of creditors, because the evidence introduced upon the trial of this cause clearly showed that Susan Hollie, deceased, bought the said property from J. R. Nelson on April 3, 1909, and it was her homestead at the time she died on the. 27th day of January, 1914, in Kaufman county, Tex., there being no children of Susan and Jack Hollie, and that they had never been divorced, and that at her death plaintiff was entitled to the same as his homestead.’-’

This contention is not sustained. The trial court, as shown by conclusion of fact filed, found that the appellant and Susan Hollie had not been divorced, and that there were no children of their marriage.; that appellant wrongfully and without cause abandoned his wife, Susan Hollie, about the year 1904, and that such abandonment continued until her death in January, 1914; that the property in controversy was purchased with money earned by appellant’s wife, Susan Hollie, about April 3, 1909, after she had been abandoned by appellant; that appellant, after abandoning his wife, never at any time lived with her or contributed to her support and maintenance, and never at any time used or occupied the premises in controversy. These conclusions are amply supported by the evidence and serve to defeat appellant’s asserted homestead rights in the property in suit. It is well established by the decisions of this state that the abandonment of a wife by a husband, without cause or excuse, and continuing until her death, will cause him to forfeit all claim to the homestead which the wife owned at the time of her death. This is true, notwithstanding the property is community property, and the mere withdrawal of the husband from the wife and continuance to live separate and apart from her, however unjustifiable and improper his doing so may he, does not operate as a severance of the marital relation. Trawick v. Harris, 8 Tex. 312; Earle v. Earle, 9 Tex. 630; Sears v. Sears, 45 Tex. 557; Newland v. Holland, 45 Tex. 588; Duke v. Reed, 64 Tex. 705; Cockrell v. Curtis, 83 Tex. 105, 18 S. W. 436; Dugat v. Bleans, 91 S. W. 363. The question has arisen in cases where the wife had abandoned the husband, but the same rule applies where the husband has abandoned the wife. The trial court did not, therefore, err in holding that appellant by his abandonment of his wife, Susan Hollie, had forfeited any claim of homestead which he otherwise might have had to the property in controversy.

Appellant further contends that the judgment of the court in favor of the appel-lees for $111.50 and establishing said amount as a lien or charge against the property in controversy, with direction that said property be sold to pay said amount, unless the same was voluntarily paid by appellant within 60 days from the date of the judgment, was contrary to the law and the evidence. The proposition under this assignment is that:

“Where the suit is not one for partition among the heirs or devisees, but is a suit by the sole owner in trespass to try title, and where in such case the plaintiff recovers as sole owner, the defendants will not be allowed to recover an open account against the estate, and to establish it as a charge with foreclosure and sale of the land so recovered.”

This contention under the facts of this case is not well founded. Upon testimony clearly warranting it the court found that appellant wrongfully and without cause abandoned his wife, Susan Hollie, about the year 1904, which abandonment continued until her death in January, 1914; that the property in controversy, was acquired by Mrs. Susan Hollie in April, 1909, after appellant’s abandonment, without any aid or assistance whatever from him; that said property was the only property owned by either the appellant or the deceased, Susan Hollie; that the said Mrs. Hollie died intestate; and that there was no administration upon her estate and no necessity therefor. Upon the evidence adduced and the facts found, the trial court concluded as a matter of law that the sum of $111.50 for which appellees were awarded judgment was a community debt of the appellant-and his deceased wife, and that the property in controversy was subject to the payment of the same. This conclusion of law, based upon the facts found, is correct. The appellant having without cause or excuse abandoned his wife, which continue'd until her death, he thereby forfeited, as hereinbe-fore stated, all claim to the homestead which she owned at the time of her death, and, there being no constituent member of the family surviving, the same descended upon her death like any other community property charged with the payment of community debts. This being true, and there being no administration pending upon Mrs. Hollie’s estate and no necessity therefor, the trial court correctly held that appellant should recover the title and possession of the property in controversy charged With the community debt found to be justly due to appellees.

It is further assigned, in substance, that the court erred in refusing to give the appellant judgment against the appellees for $84 as the reasonable rental value of the I>roperty in controversy. No finding of the trial court upon this question is found in the record, and we have no means of knowing how that court viewed the matter, except as we may infer from the testimony bearing upon the subject. Looking to this testimony, we conclude the trial court was of the opinion that it did not warrant a judgment in favor of appellant for rents. It is undisputed that appellees received only the small sum of $4 or $5 as rent for the property, and the testimony warrants the conclusion that it was in such bad repair that it possessed, aside from the said small amount collected, practically no rental value. Besides, the undisputed testimony of the appellee Mrs. Stella Taylor is to the effect that she paid for Mrs. Susan Hollie on the purchase price of the property in controversy about $40 and made some improvements on it, the value-of which is not stated, and it is reasonable to conclude that they constituted mutual offsets, and hence no judgment for amount as rents should be awarded appellant. At any rate we are not prepared to say, from the record before us, that the trial court erred in not awarding the appellant a judgment for the amount of rent claimed by him.

The fourth and last assignment of error has been disposed of by what we have already said, and need not Be further discussed.

Believing the record discloses no reversible error, the judgment of the court below is affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes