author: TALBOT, J.

text:
    PULLMAN CO. v. MOISE et al.
    (No. 7577.)
    (Court of Civil Appeals of Texas. Dallas.
    June 3, 1916.)
    1. CARRIERS <&wkey;417— Sleeping Car — Loss o» Wearing Apparel — Question for Jury — Negligence.
    In an action for the loss of wearing apparel stolen from a sleeping car berth, and for consequent mental anguish and embarrassment, evidence held to make defendant’s exercise of reasonable care in guarding the property a question of fact for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. &wkey;417.]
    2. Trial c&wkey; 194(15) — Instructions — Province of Jury — Weight of Evidence.
    In an action for damages for the loss of wearing apparel stolen from a sleeping car berth, and for consequent mental anguish and embarrassment, an instruction, after defining negligence, that if the jury found and believed that defendant was guilty of negligence in failing to properly watch and guard the plaintiff’s property against theft, and such negligence was the proximate cause of plaintiff’s loss, to find for plaintiff, indicated the court’s opinion that the evidence showed a failure to properly guard the property against theft, and was an instruction on the weight of the evidence, contrary to the mandatory provision of the statute, and reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. &wkey;194(15).]
    3. Carriers <&wkey;413(2) — Sleeping Car Companies — Care Required.
    Sleeping car companies are required to use only reasonable or ordinary care to guard the property of passengers from theft, and are not held to that high degree of care applicable to common carriers generally.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1584, 15S5; Dec. Dig. &wkey;3413(2).]
    4. Trial <&wkey;203(l) — Instruction—Theory of Case.
    In an action against a sleeping car company for the loss of wearing apparel stolen from a berth, and for consequent mental anguish and embarrassment, the defendant was entitled to an instruction as to its exercise of reasonable care to guard the property against theft applying the law to his theory of the facts as disclosed by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. &wkey;203(l).]
    5. Trial <&wkey;256(3) — Instructions—Request.
    In such case and on the court’s failure to so instruct in its general charge, the defendant had the right to prepare and have given a special charge supplying the omission in the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 630; Dec. Dig. <@=^256(3).]
    6. Carriers <&wkey;417 — Sleeping Car Companies — Loss of Wearing Apparel — Damages — Humiliation.
    A woman passenger, whose clothes were stolen from her sleeping car berth by cutting the screen from an open window, and who in consequence clad in a nightgown and kimona had to walk through the train, including another sleeper, several day coaches, and one or more smoking rooms to reach her trunk in the baggage car, from defendant’s failure to exercise reasonable care to guard her clothes from theft, might recover for such humiliation and embarrassment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. &wkey;417.]
    7. Carriers <&wkey;>417 — Loss of Baggage — Mental Suffering — Fear and Apprehension.
    In such case, the admission of plaintiff’s testimony that she did not know what to do, did not know whether she would be without clothes the next evening when she arrived, and was in an awful predicament, and did not know what to do, was erroneous, as damages are not recoverable for mental anxiety or fear of some contingency, when the anxiety is unfounded and the contingency never comes to pass.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dee. Dig. &wkey;417.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by Mrs. A. S. Moise and husband against the Pullman Company. Judgment for plaintiffs, and ■ defendant appeals.
    Reversed, and cause remanded.
    Etheridge, McCormick & Bromberg and Chas. T. McCormick, all of Dallas, for appellant. Moise & Mullican, of Dallas, for ap-pellees.
   TALBOT, J.

Mrs. A. S. Moise, joined by her husband, A. S. Moise, brought this suit against the Pullman Company to recover damages alleged to have been sustained on account of the loss of wearing apparel while a passenger in one of defendant’s sleeping ears, and on account of mental suffering, inconvenience, and embarrassment in consequence thereof, as a result of the negligence of the defendant. The plaintiff’s amended original petition alleges that on the morning of July 8, 1914, some time between 2 and 3 o’clock, while plaintiff was traveling from Dallas, Tex., to Chattanooga, Tenn., and while she was sleeping in a lower berth of one of defendant’s sleeping cars, the screen of the window of the berth was cut and articles of clothing of the value of $65 were abstracted from her berth; that this loss was caused by the negligence of defendant’s servants in allowing the window of plaintiff’s berth to remain open and in failing to keep an adequate watch to protect plaintiff’s effects from theft; that, as the result of plaintiff’s loss of her clothes, she was forced to go through the train to the baggage car in insufficient attire whereby she suffered mental anguish and embarrassment. The prayer is for damages in the sum of $600.

There was testimony to the effect that the plaintiff, while en route from Dallas, Tex., to Chattanooga, Tenn., embarked at Shreveport, La., upon one of defendant’s sleeping cars, and that she occupied lower berth No. 9, which was on the left-hand side of the car going east, and that after plaintiff had retired she was awakened somewhere between 2 and 3 o’clock in the morning by a ripping sound; that after she awoke the train began to move, and she then discovered that her clothes were gone, and that the screen in the open window of her berth had been cut open. She lay awake until it was light and then notified the porter and conductor of her loss. When she retired, plaintiff placed her clothing upon a shelf at the foot of the berth and in a hammock swung alongside the windows of the berth. One of the windows was closed, the other was open except for a screen which completely covered the open part of the window, and the open window was next to the shelf where her clothes were. The plaintiff did not request that the window should remain open. When the plaintiff got up in the morning, in order to reach the baggage car where her trunk and clothes were, the plaintiff, clad in a nightgown and kimona, had to walk through the train, including another sleeper, one or more day coaches, and one or more smoking rooms; there were many people in these coaches who looked at plaintiff as she went to and returned from the baggage car — all of which caused her humiliation and embarrassment. Her kimona had been brought by her for the purpose of being used in going from the berth to the dressing room in her sleeper, and she had used it for that purpose. The clothes that were stolen were subsequently found and were tendered to the plaintiff about six weeks after the loss. She inspected them and found that they were mussed up and were not as fresh looking as they had been when in her possession. One of the articles lost was a coat suit suitable for summer wear, and the season for its use was over when the clothes were tendered to plaintiff, and she declined to accept any of them.

B. P. Gay, the porter, testified, in substance, that he was on watch in the car in which Mrs. Moise was traveling throughout the night in question, and knew nothing of the loss until the morning after the occurrence; that he was in the car continuously throughout the night, except when the train would stop at stations, at which time he was on watch on the ground side of the car near the entrance; that at such times only one entrance to the car was open; that the weather was hot at that .time, and the window to plaintiff’s berth was open before she retired, and plaintiff made no request with reference to whether the window should remain open or closed; that in warm weather the practice is to allow the window to remain open unless the passenger requests otherwise; that no other robberies had ever occurred to his knowledge from his car in the country traversed that night. This witness further testified:

“I do not know where this robbery occurred. I know it was before we got to Meridian, Miss. I would open the door on the left-hand side of the car, and if anybody, at any station between Vicksburg and Meridian, had attempted to get up on the left side of the car, I woulij have seen him. I attended to just one car. York, Ala., is 27 miles from Meridian. We got to York after we left Meridian. I had a passenger to put off at York, and then I was on the right-hand side of the car, and had to put him off on the right side. York, Ala., is a regular stop for the train. We got there at about 2:35 in the morning, something like that. I did not see anybody there. I might have told Mrs. Moise that her clothing were taken at York, Ala., and that there is where they wore found. I did not look on the left-hand side of the car at York, as the station was not on that side. • On the left-hand side of the train, at York, were just tracks and box cars. I don’t know whether they had a night watchman around these box cars there or not, but I didn’t see any. I did not look over on that side.”

The conductor of the sleeping car testified, in substance, that he was the conductor of the car that plaintiff was in; that the porter was on watch in that car plaintiff was in, and he knew nothing of the robbery until next morning; that “in the sleeper where Mrs. Moise was the p'orter, Gay, was on watch. I saw him in there when I would pass through the cars. It is my duty to see that the porter is on watch, and, if one happens to fall asleep, I wake him. If Gay had not been on watch on the night in question, I would have known it and would have remembered it.”

The case was submitted to a jury on a general charge and resulted in a verdict in favor of the plaintiffs for “$50 actual damages and $50 damages for mental anguish.”

The first assignment of error complains of the court’s refusal to give a special charge requested by appellant directing the jury to return a verdict in its favor. This assignment challenges the sufficiency of the evidence, upon any fair analysis and construction of it, to show liability on the part of the appellant. The contention is that the undisputed evidence shows that an uninterrupted watch was kept by appellant’s servants in charge of the sleeping car in question throughout the night upon which the loss complained of was sustained, and that such a showing constitutes a complete defense to appellee’s cause of action charging a negligent failure on appellant’s part to prevent loss of her property. We have stated what we regard as the most material testimony bearing upon the question here raised, and in view of the fact that the case will be reversed and remained for another trial, because of what we conceive to be error in'tbe court’s charge, it would be improper for us to 'comment upon the weight of the evidence, and we shall therefore overrule this assignment by simply saying that we have concluded that whether or not reasonable care was exercised by the appellant in guarding the property of Mrs. Moise was a question of fact for the determination of the jury.

The court, after telling the jury that “a failure to use that degree of care that an ordinarily prudent person would use under the same or similar circumstances is negligence,’.’ instructed them further as follows:

“Therefore, if you find and believe that defendant was guilty of negligence as above defined in failing to properly watch and guard the property of plaintiff to protect same against theft, and you further find that said negligence, if any, was the proximate cause of the plaintiff’s loss, then you will find for the plaintiff in an amount sufficient to compensate plaintiff for her loss, if any.”

It is contended that the charge is on the weight of the evidence, in that, it intimates that the defendant did fail to properly watch and guard the property of the plaintiff, Mrs. Moise, to protect same against theft. The contention is well founded. Several similar charges have been held to be subject to the objection here urged, and the cases in which they .were given reversed and remanded. Railway Co. v. Williams, 17 Tex. Civ. App. 675, 40 S. W. 161; Railway Company v. Waldie, 101 S. W. 517; Railway Co. v. DeBord, 132 S. W. 845; Railway Company v. Smith, 133 S. W. 482. Our statute prohibits the judge in jury trials from commenting upon the weight of the evidence, and this statute is mandatory. The appellant was entitled to have the issue involved in the charge complained of determined by the jury from a consideration of the testimony alone, uninfluenced by any intimation from the court as to the view he entertained with reference to it. The court, in framing the charge, did not intend, of course, to be understood as making such an intimation to the jury; but, as the language and form of the charge is such as to suggest that the court was of the opinion that the evidence showed a failure on the part of the appellant to properly guard the property of the plaintiff against theft, it constitutes reversible error. As was said in Railway Company v. Lynch, 136 S. W. 580:

“The vice in the instruction does not lie in the fact that the jury were relieved of the duty to determine such a question, but in the fact that they might have construed the language complained of as indicating the view the court court took of the testimony with reference to that phase of the case.”

In Railway Co. v. Waldie, supra, the plaintiff, an employé, sued to recover damages for personal injuries received, .while assisting in loading iron rails from one car to another, under the direction of the company’s section foreman Collins, and the charge of the court, so far as here material, was as follows:

“And if you further find defendant and its foreman Collins was guilty of negligence, as that term has been hereinbefore defined, m_ attempting to do gaid work with an insufficient number of men or in failing to provide and furnish appliances or tools reasonably necessary to enable said gang to perform said work with reasonable safety, or in failing (italics ours) to notify plaintiff that said rail would be dropped, and if you further find that such negligence, if any, was the direct and proximate cause of plaintiff’s injury, then, if you so find, you will find for the plaintiff and so say by your verdict, and assess his damages as hereinafter directed unless you should find for the defendant undercharges hereinafter given you.”

The Court of Civil Appeals of the Third District, in holding this charge erroneous, said:

“Error is addressed to this charge, because it invades the province of the jury, and assumes as a fact that there were an insufficient number of men to safely do the work, and failure by the defendant to furnish appliances and tools reasonably necessary for the performance of the work with reasonable safety. Charges similarly framed have been held subject to the objection urged and made grounds for reversal. Railway Co. v. Williams, 17 Tex. Civ. App. 675, 40 S. W. 161; Railway Co. v. Smith, 63 S. W. 1065. Having a statute which, in jury trials, prohibits the judge from commenting upon the weight of testimony, it has been repeatedly held that any act of the judge which intimates to the jury his opinion as to the weight of testimony submitted to the jury is prohibited by that statute. This may be done in many ways, as shown by repeated decisions.”

In Railway Co. v. Smith, 133 S. W. 482, cited above, -the court charged the jury thus:

“If you believe from the evidence that the defendant in loading the coal on the tender, or in maintaining its track at the place where such injury occurred, or in running the train at too great a speed, or in providing an insufficient number of men to keep the track in the section where such injury occurred, if it did occur, in good condition, failed to exercise ordinary care as that term is defined in this charge, and if you believe that such personal injuries to James Smith, if any, resulted in his death and from the failure of the defendant to exercise care in respect to its railway track and running its train and in loading its tender, as above stated, then and in that event you should find for the plaintiff; but, if you do not so believe, you will find for the defendant.”

This charge was attacked, as being upon the weight of the evidence, and the Court of Civil Appeals of the Sixth District, speaking through Mr. Justice Levy, said:

“The charge assumes that the train was being run at too great a rate 9f speed, and that an insufficient number of section men were provided to properly maintain the track at that section. These were sharply controverted issues in the case and material grounds of negligence pleaded and relied on. We feel constrained to hold that it was a charge upon the weight of evidence and in violation of the statute in such respect. Under repeated decisions, it is held to be reversible error, under the terms of the statute, for the court to charge at all on the weight of evidence.”

In the case at bar the language of the charge objected to is as follows:

“If you find and believe from the evidence that the defendant was guilty of negligence, as above defined, in failing to properly watch and guard the propex-ty of plaintiff to protect same against theft, * * * then you will find for the plaintiff in an amount sufficient to compensate plaintiff for the loss, if any.”

The purport of this charge is that, in the opinion of the trial court, the appellant failed to properly watch and guard the property of the appellee, Mrs. Moise, and in view of our statute must he held to be reversible error. This court, in the case of Railway Co. v. Williams, 17 Tex. Civ. App. 675, 40 S. W. 161, held that an instruction which from its form of expression was liable to be construed by the jury as assuming the proof of a material fact in controversy was misleading, and reversed and remanded the cause for a new trial. The fact assumed in the court’s charge in the instant case ,was not only material, but the controlling issuable fact in the case.

Appellant further contends that the charge under consideration was erroneous, in that it was, in effect, an instruction that the appellant had the duty of keeping such a watch as would necessarily prevent theft. There is force in this contention, but it is not likely that the court’s charge upon another trial will be subject to such criticism. The rule is well settled that sleeping car companies are'required to use only reasonable or ordinary care to guard the property of passengers on their cars from theft. That high degree of care applicable to common carriers generally does not apply. In Lewis v. Oar Co., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, which seems to be a leading case upon the subject, the rule is thus stated:

“While it is not liable as a common carrier or as an innholder, yet it is its duty to use reasonable care to guard the passengers from theft; and if, through want of such care, the personal effects of a passenger such as he might reasonably carry with him are stolen, the company is liable for it.”

The rule enunciated is well nigh universal, and many of the cases announcing and following it will be found cited in Pullman Sleeping Car Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771.

There is another rule firmly established by the decisions of this state, which is invoked by appellant, and that is that ordinarily a party to a suit is entitled to an instruction applying the law to his theory of the facts as disclosed by the evidence. If this rule has not been complied with in the court’s general charge, then the party who has been thus deprived of such a charge has the right to prepare and have given a special charge supplying the omission in the general charge. Railway Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058; Railway Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; Pullman Co. v. Schober, 149 S. W. 236. Whether appellant exercised reasonable care to guard the appellee’s property against theft was an issue in this case which it “was entitled to have * * * submitted on charges that embodied a reference to the facts or theory upon which it was based.” Railway Co. v. McGlamory and Pullman Co. v. Schober, supra. The issue was submitted only in a very general manner.

In the third paragraph of the court’s charge the jury was instructed as follows:

“You are further charged that if you find for the plaintiff in any sum as actual damages, under the charge above, and you further find that by reason of said negligence, if any, as above defined, the plaintiff was really and necessarily caused to suffer humiliation and mental anguish, you will find for the plaintiff in any amount that you believe she has suffered thereby, not to exceed $535.”

The proposition contended for under this assignment is that:

“Damages for mental anguish are not recoverable in an action for negligent loss of property in the absence of pleading and proof of intentional wrong or insulting conduct on the part of the defendant.”

Appellant’s able counsel have cited no case in which the precise question raised has been decided and admit that they have been unable to find such a case. It is contended, however, that the principle deducible from the decisions cited in support of their proposition is that damages for mental anguish are not a proper element of recovery in eases of breach of contract except for the delay and misdelivery of telegrams, which on their face indicate that mental distress would probably follow from such delay or misde-livery ; nor in actions for tort, unless the plaintiff has sustained physical harm or has been intentionally or wantonly subjected to distress or humiliation. The question is not free from difficulty, but we have reached the conclusion that the issue sought and intended to be submitted in the charge was a proper one under the pleadings and proof. The charge, however, did not, we think, submit as specifically and clearly the very issue involved in the allegations of the appellee’s petition and the evidence adduced upon that issue as it should have done. Probably the appellee was not entitled to recover for any mental distress suffered simply as a result of the loss of her property, and we do not understand that she sought any such recovery. The allegations of the petition are that, as a consequence of the negligence of the appellant, the appellee was forced to walk through a number of coaches of the train clad only in her nightgown and kimona to the baggage car in the train to secure from her trunk sufficient clothing to wear until she reached her destination, and was thereby exposed, in her scanty attire, to the gaze of the passengers on the train and caused to suffer great mental anguish, embarrassment, and annoyance. These allegations were sustained by undisputed evidence, but the record discloses no pleading nor evidence of “intentional wrong or insulting conduct on the part of the appellant.” The question then is: Was the mental anguish suffered by appellee, in the manner and under the circumstances alleged and proved, a proper element of her damage if the appellant failed to exercise reasonable care to guard her wearing apparel from the depredations of thieves? It has been held by our appellate courts that injury to feelIngs or mental suffering caused by the seizure under legal process of real or personal property, even though such property be esempt from forced sale, is not recoverable as actual damages, though it may, under some circumstances, be taken into consideration in estimating exemplary damages, and as a general rule damages for mental anguish unaccompanied by any actual physical injury are not recoverable; but in exceptional cases such damages, in the absence of any physical injury, or intentional wrong or insulting conduct on the part of appellant, have been allowed in this state. Notably among such cases are those involving delay or misdeliv-ery of telegrams. The exception to the general rule, however, has not been restricted to cases in which there has been a failure to deliver a telegram. Railway Co. v. Anchonda, 68 S. W. 743; Id., 33 Tex. Civ. App. 24, 75 S. W. 557; Railway Co. v. Coopwood, 96 S. W. 102. In the first case cited the appellee therein purchased of the railway company’s agent tickets for herself and two children, the agent looking at the children to see if they were entitled to half fare tickets, but nothing being said as to the relationship existing. When the train upon which the mother and children expected to embark arrived at the station, the two children were placed upon the train; but the train was not stopped long enough to enable the mother to board it, and her children were carried away on the train and thus separated from her. The court held that, if the railway company knew of the relationship of the mother to the children, the husband, who was suing, was entitled to recover for the mental anguish suffered by the wife as a direct result of the negligent separation of her from her children, without proof of any physical injury or intentional wrong or insulting conduct. In the second case, in which a writ of error -was denied, the appellee, Mrs. Coop-wood, sued the railway company to recover damages for mental anguish suffered by her as the result of the inattention, mistreatment, or neglect by the company’s servants of her invalid and helpless daughter, who was traveling with her on one of the railway company’s passenger trains, and the principal question in the ease was whether such suffering was an element of appellee’s damages. This court, after a somewhat lengthy review of the decisions of this state, held that damages by reason of such suffering were recoverable, although it did not appear that Mrs. Coopwood had sustained any physical injury, or had been intentionally or wantonly subjected to distress or humiliation. In the case at bar, if the appellant failed to exercise the degree of care imposed upon it by law to guard Mrs. Moise’s wearing apparel from the theft alleged, and as a result of such failure she lost such apparel, and if as a further proximate result of such loss it became necessary for appellee to pass through the coaches of the train clad only in her nightgown and kimona to the baggage car to secure proper clothing, and suffered humiliation or mental anguish by reason thereof, then, upon the theory that such humiliation or mental anguish was the direct or proximate result of appellant’s negligence, the appellant would be liable in damages therefor. That appellee, in the event of the loss of her wearing apparel by theft, would be exposed to the gaze of passengers on the train in her nightclothes and would suffer as a result thereof humiliation, or some form of mental anguish, might reasonably have been expected as the natural and probable consequence thereof can hardly be questioned.

L7] The next assignment of error is that:

“The court erred in admitting the following testimony offered by plaintiff, over defendant’s objection, to wit, the testimony of plaintiff, as follows: ‘I didn’t know what to do. I didn’t know whether I would be without clothes the next morning when I got to Chattanooga, and I was in an awful predicament, and I didn’t know what to do.’ ”

The proposition advanced under this assignment is that:

“Damages are not recoverable for mental anxiety or fear of some contingency when the contingency never came to pass and the anxiety is unfounded.”

This assignment is well taken. In the case of M., K. & T. Ry. Co. of Texas v. Linton, 126 S. W. 678, the plaintiff sued for mental anguish incident to delay by defendant in shipping the corpse of her son. The railway company failed to transport the corpse, and plaintiff testified that when the corpse did not arrive promptly she feared that the body would be in such condition that it could not be shipped at all. In fact, the body was later shipped by express, so that plaintiff’s fear proved to be ill founded. On appeal to this court, it was held, in an opinion by Mr. Justice Bookhout, that:

“The fears of appellee, that it could not be shipped, but would have to be laid away in the state of Washington, and if shipped it would be in such condition she could not look upon it, were purely imaginary. Mental anguish on her part resulting from apprehension or fear that certain things would happen, which in fact did not, cannot be made a basis for the recovery of damages. Western Union Tel. Co. v. McNairy, 34 Tex. Civ. App. 389, 78 S. W. 969; Tel. Co. v. Edmonson, 91 Tex. 206, 42 S. W. 549; Tel. Co. v. Reed, 37 Tex. Civ. App. 445, 84 S. W. 296; Hart v. Tel. Co. [53 Tex. Civ. App. 275], 115 S. W. 638. The admission of this evidence was error.”

Clearly, under the decisions cited, the testimony here complained of was inadmissible.

The judgment is reversed, and the cause remanded.
      <@r=jFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    ALEXANDER v. CONLEY et al.
    (No. 7525.)
    (Court of Civil Appeals of Texas. Dallas.
    June 3, 1916.)
    1. Mortgages <&wkey;39- — Absolute Deed as Mortgage — Evidence—Sufficiency.
    Whether deed was given as a mortgage held on the evidence to be a jury question.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 112, 113; Dec. Dig. &wkey;39.]
    2. Mortgages <&wkey;32(3) — Absolute Deed as Mortgage — Determination by Attendant Circumstances.
    A judgment creditor’s attorney purchased land on an execution sale which he conveyed to a grantee, who paid the judgment debts with the understanding that such grantee would convey to the judgment debtor when reimbursed for his outlay. Meld, the attorney’s deed was in effect a mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60, 84; Dec. Dig. &wkey;32(3).]
    3. Trespass to Try Title <&wkey;G(l) — 1Title-Mortgagee.
    A mortgagee who has never been in possession cannot maintain a suit in trespass to try title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15,16; Dec. Dig. <&wkey;6(l)J
    4. Appeal and Error <&wkey;1062(2) — Harmless Error — Submission op Issues.
    In trespass to try title, the refusal to submit special issues as to appellees’ diligence in not discovering a prior deed to appellant is harmless, where the jury found that such deed was a mortgage, thereby preventing appellant from maintaining his form of action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. <&wkey;>1062(2).]
    5. Appeal and Error <&wkey;1058(2) — Harmless Error — Admission op Similar Evidence by Same Witness.
    Excluding of grantee’s testimony that he would 'not have taken the deed in question as a mortgage is harmless, where he is permitted to repeatedly state that it was an absolute conveyance.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4201; Dec. Dig. <&wkey;> 1058(2).]
    6. Evidence <&wkey;273(2) — Declarations as to title — Owner op Land.
    Prior to an execution sale, the record owner told the purchaser that the judgment debtor owned the land, and the debtor confirmed it. Meld, the debtor’s statement was admissible on the issue of title, where appellant claimed under a prior unrecorded deed of the record owner.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1111, 1112; Dec. Dig. &wkey;273(2).]
    7. Trial <&wkey;255(4) — Instructions—Requests —Necessity—Purpose op Evidence.
    In an action to try title, receiving evidence admissible on the question of appellees’ care in not discovering an unrecorded deed to appellant, but inadmissible on the question whether such deed was a mortgage, is not reversible error when no request was made to limit its effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 632; Dec. Dig. &wkey;255(4).]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by W. N. Alexander against B. K. Conley and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Woods & Morrow, of Kaufman, for appellant. S. J. Osborne, Wynne & Wynne, and Huffmaster & Huffmaster, all of Kaufman, for appellees.
   RASBURY, J.

This is an appeal from a judgment in favor of appellees, who were defendants below, in a suit of trespass to try title to lands in Kaufman county. No issue arises upon the sufficiency of the pleading, and for that reason it will not be detailed.

The land in dispute is 50 acres out of the W. A. Thompson survey in Kaufman county, the parties claiming D. F. Fitzgerald as the common source of title, and the following constitutes appellant’s chain of title: On December 28, 1903, J. E. Mathis recovered judgment in justice court of Kaufman county against Fitzgerald for $43.25. Subsequently, the land in controversy was levied upon by virtue of execution issued out of said judgment and sold, and in turn conveyed by the constable by the" usual form of deed to Ed Sewell. Sewell recorded his deed September 14, 1904. On March 31, 1905, Se-well conveyed the land to W. N. Alexander, appellant, reciting a consideration of $40 paid. Appellant recorded his deed July 5, 1914. The following constitutes appellees’ chain of title: On April 29, 1910, John Persche recovered judgment in justice court of Kaufman county against Fitzgerald for $120.86. Subsequently the land in controversy was levied upon by virtue of execution issued out of said judgment and sold, and in turn conveyed by the constable by the usual form of deed to Persche. The deed was dated July 5, 1910, and was recorded July 30, 1910. By deed dated October 6, 1910, and recorded November 21, 1912, Persche conveyed the land to Ross Huff-master. Huffmaster conveyed to McOormick October 9, 1910, the deed being recorded October 21, 1912, and being in correction of deed of December 22, 1910. The several conveyances enumerated, the vendees in which were made iiarties to the suit, contain provisions concerning the consideration therefor and the manner of its payment; but these provisions are not material to the disposition of the appeal, and for that reason are not detailed. Other necessary facts will be stated later.

There was trial by jury, to whom the court submitted certain special issues of fact and upon the answers to which judgment was entered for appellees, defendants below, and from which entry this appeal is prosecuted.

The first assignment of error complains of the action of the court in submitting to the jury the following special issue of fact:

“Does the evidence show that the deed of Ed Sewell to plaintiff, Alexander, was intended by the parties as a mortgage or security for debt or other like purpose?”

In connection with the issue so submitted to the jury, it is necessary to state that ap-pellees by appropriate pleading alleged that, while the deed from Sewell to appellant was absolute on its face, it was in truth given in security of money advanced by appellant to Sewell in payment of the Mathis judgment with the understanding that same would be reconveyed to Fitzgerald when the-debt was repaid, and hence the instrument was but a mortgage. It was that the jury might determine that claim that the special issue was submitted. Appellant contends, first, that such issue should not have been submitted to the jury because the evidence did not raise it. Both Alexander and Sewell testified on the issue. A careful analysis of Sewell’s testimony discloses that he was attorney for J. B. Mathis, his father-in-law, and, before suing Fitzgerald, he endeavored to collect from him, and explained that if the debt was not paid he would sue. Fitzgerald told Sewell the land was incumbered, that he could not pay the Mathis debt, and for Se-well to do as he pleased. Sewell did sue and secured judgment, after which execution was levied upon the land, which was bought by Sewell at the constable’s sale under the judgment and deed thereto taken in his name; and, he intended to bring suit for its possession. However, after the conveyance to Sewell, and before suit for possession was commenced, Fitzgerald conferred with Sewell about the matter, and, in the presence of Alexander, told Sewell he could not pay the judgment debt, but if he would transfer his claim and the land to Alexander he would carry it and permit Fitzgerald to pay it off later. To this Sewell agreed, and Alexander paid Sewell the amount of the judgment, and he conveyed the land to him with the understanding between Sewell, Fitzgerald, and Alexander that the conveyance was in security of the debt paid by Alexander. Fitzgerald did not testify, but it appears from the testimony that Fitzgerald was in possession of the land when it was sold under the Persche judgment. Appellant was never in actual possession of the land, never rendered same for taxation or paid taxes thereon, or attempted to secure possession or control thereof. From 1904 to 1910, the tax was paid in the name of Fitzgerald. The witness R. E. Conner cultivated the land during 1908, 1909, as the tenant of Fitzgerald, accounting to him for the rent, and in 1910, 1911, as the tenant of Conley, appellee.

Appellant, who was a witness, denied that he made the arrangement testified to by Se-well and, on the contrary, asserted that the deed evidenced an outright sale; the consideration being the satisfaction of the Mathis judgment and certain other indebtedness due him by Fitzgerald, secured by lien on the land in favor of a former owner, although it was in evidence, without dispute, that appellant, long after tiie deed from Sewell to him was executed, renewed and extended the debt, supposed to be satisfied by the conveyance, at the request of Fitzgerald. Appellant’s explanation of that circumstance, however, was that he was willing to recon-vey the land to Fitzgerald notwithstanding his deed, if he would repay the debt. There are other facts -and circumstances in the record, which would tend fo sustain a finding of the jury in favor of either party. What we have said, however, is sufficient, it seems to us, to demonstrate that the finding of the jury is not without support in the evidence, and that the instant case is one of those which, because of its conflicts, demonstrates the- wisdom of referring to the jury such matters and because of which the contention of appellant is respectfully overruled.

It is next urged under the same assignment of error that, before a deed absolute on its face may be construed a mortgage, the relation of creditor and debtor must exist between the vendor and the vendee or those to be benefited thereby, and it appearing that that relation did not exist between Sewell and Alexander, or Sewell and Fitzgerald, the instrument is and remains, as matter of law, a deed absolute. It is true that the relation of creditor and debtor never existed between Sewell and Alexander. It may also be conceded that that relation as between Se-well and Fitzgerald ceased to exist when the land was conveyed by the constable on the theory that the conveyance satisfied the judgment of Mathis for whom Sewell was acting. Notwithstanding such conceded facts, we are of opinion that the relation of creditor and debtor was created as between appellant and Fitzgerald by the conveyance of the land to the former for the purpose found by the jury. While the title passed to Sewell, and while such fact may have in law satisfied the debt of Mathis, Sewell nevertheless had the right to reconvey same to Fitzgerald on such conditions as he might impose. Sewell testified, and the jury in effect found, that he agreed to reconvey upon payment of the Mathis debt. This could only be effected by conveying, to Alexander, who advanced the money, in trust for Fitzgerald, and the jury further found that the purpose of the conveyance was to secure appellant in payment of the amount so advanced. The legal result of such facts is that the deed, though on its face absolute, was in fact a mortgage. Such being the situation, and appellant never having been in possession of the lands, appellant was not entitled, as urged by appellees in 'counter propositions, to dispossess appellees by suit of trespass to try title. His remedy was a suit for his debt and foreclosure of his mortgage. Edrington v. Newland, 57 Tex. 627; Wiggins v. Wiggins, 16 Tex. Civ. App. 335, 40 S. W. 643, and cases cited. It is so well settled that a deed absolute on its face may be shown by parol to be a mortgage or security for money loaned or a debt owing, that we forego the citation of authority in support of that rule.

The refusal to submit to the jury several special issues of fact, relating to the diligence of appellees in ascertaining in whom the outstanding title, indicated by the deed from Fitzgerald (by constable) to Se-well, reposed, is made the basis of several assignments of error. If it should be conceded that error is shown, though we think that issue was correctly presented by the court, it would nevertheless be immaterial under the finding of the jury that the deed under which appellant claimed the land was not a deed but a mortgage, and as a consequence appellant’s remedy was a suit for debt and foreclosure.

On the issue as to whether the deed was in fact a mortgage, counsel asked appellant: “Would you have taken the deed from Sewell to you as a mortgage or trust on this property?” Upon objection the witness was not permitted to answer.. Such action is assigned as error. The answer of the witness would have been that the deed was taken by him as an absolute conveyance in satisfaction of his debt and to avoid foreclosure. While the answer which the witness would have made is not in any sense responsive to the- question, since it is not a statement of what the witness would have done, but what he did do, at the same time, the witness was permitted repeatedly to say that the deed was an absolute conveyance; the consideration being the satisfaction of the debt he held against Fitzgerald, and as a consequence the ruling, if erroneous, was harmless.

Ross Huffmaster, who secured judgment against Fitzgerald for Persche and who caused the levy of execution on the land in controversy from said judgment and bought it in for Persche, was a witness, and testified that before he bought the land for Persche he examined the record and found the title in -Sewell. He then called upon Sewell and inquired of him whether he owned the land, Sewell informing him that, while he had bought it at constable’s sale, Fitzgerald had paid off the judgment and received the land back. Huffmaster then called upon Fitzgerald and inquired of him “as to who owned the land,” and to which Fitzgerald replied that “he owned it and that he got the land back.” Appellant objected to the admission of the quoted testimony, and assigns as error the action of the court in admitting same. On the issue of title, we think the testimony was admissible, since it was the duty of Huffmaster, acting for Persche and having knowledge of the deed to Sewell, to inquire whether he (Sewell) still claimed the property. Having been informed by Sewell that it had gone back to Fitzgerald, it was his duty to inquire of him if he was still the owner. Being without actual knowledge of the unrecorded deed to Alexander, he had the right to reply upon the statements of Sewell and Fitzgerald. If it can be said that the testimony was inadmissible on the issue of whether the deed was a mortgage, then, being admissible on the issue of title, it was the duty of appellant to request the court to restrict it to its legitimate purpose, and, having failed to do so, it does not constitute reversible error’.

We have carefully examined all remaining assignments of error, some of which relate to charges refused and given and some of which relate to the admission or exclusion of testimony; but because, in our opinion, they become immaterial, in view of the conclusion we have reached on other issues, same are overruled.

For the reasons stated, the judgment is affirmed.
      <gr^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    SPARKS v. STATE.
    (No. 4104.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    1. Homicide <&wkey;167(l) — Evidence—Admissibility.
    In a prosecution for assault with intent to murder, prosecutrix having heen shot through a window while in bed at night, where a witness testified that the accused was talking with her about the assaulted person, his statement, “I spends my money on the-, and if she.don’t treat me right I will kill her,” was sufficiently identified as referring to the assaulted party and admissible. '
    [Ed. Note. — For other cases, see Homicide, Cent Dig. §§ 332, 333; Dec. Dig. &wkey;167(l).]
    2. Homicide <&wkey;234(6) — Evidence—Identification of Accused.
    In a prosecution for assault with intent to murder, prosecutrix having been shot through a window while in bed at night, and having testified that the accused had been sleeping with her, knew the location of the bed, and that she recognized his voice, it was not necessary to support conviction that she could and did see and recognize accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 487; Dec. Dig. &wkey;>234(6).]
    3. Homicide &wkey;>230 — Evidence—Assault to Murder — Abiuty oe Accused to See Prosecutrix.
    In a prosecution for assault with intent to murder, prosecutrix having been shot through a window while in bed at night, it was not necessary to a‘conviction that defendant could see prosecutrix on the bed, where the record shows that he had been sleeping in the bed with her, knew its location, that it was next to the window, and that he fired directly through this window.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 478; Dee. Dig. <&wkey;230J
    4. Criminal Daw <&wkey;940 — New Trial — Grounds — Newly Discovered Evidence.
    In a prosecution for assault with intent to murder, where prosecutrix was shot through a window while in bed, refusal of a new trial on the ground that witnesses would swear that since the trial they have gone to the house in the nighttime, one lying on the bed and the other standing just outside the window, and that a person lying on the bed could not recognize a person on the outside of the window in the nighttime when no moon was shining, was not error, since there is no contention that one could not hear another speak, or could not see the bulk of some one standing outside, and the testimony of prosecutrix was that she recognized defendant by his voice, and saw him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. &wkey;> 940.]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    Dee Sparks was convicted of assault to murder, and he appeals.
    Affirmed.
    Harry Tom King, of Abilene, for appellant. G. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

In the first bill of exceptions it is contended that the court erred in permitting the witness Hattie Chandler to testify as hereinafter related. She testified that she and Ethel Wyatt were at an entertainment given at the residence of Tom Smith; that while there appellant also came to the entertainment, and while there had a conversation with her, and she testified:

“He was talking to me about Ethel Wyatt. He asked me who she was with, and I told him she was by herself, and he asked me had she said anything about him, and I told him ‘No,’ and he said, ‘Well,’ he says, T spends my money on the son of a bitch, and if she don’t treat me right I will kill her.’ ”

Appellant contends that, if appellant did use this language, he did not individuate Ethel Wyatt. We think, taking the conversation as a whole, no other inference could be drawn; for the witness says he was talking to her about Ethel Wyatt at the time he used the language he did. Taking also the testimony of the prosecuting witness, Ethel Wyatt, as to the remarks he made to her that evening, it is clear that, if appellant made the remark, he had reference to Ethel Wyatt, and no other person. The prosecuting witness testified to going from the party to her home at Judge Tillet’s, she staying in the servants’ house; that shortly thereafter she went to bed. She then testifies:

“The first thing I noticed about any one being around there was when Dee Sparks called me by my name three times. I know it was Dee because I saw him. I recognized him also by his voice. He called me and says, ‘Ethel’; and he waited a little while, and he called me again, and he called me again, and he says, ‘Well, then, you ain’t going to talk is you?’ I didn’t say anything to him, and he says, ‘Well, you- -, you will say something.’ I said he called me three times by my name, Ethel. And he said, ‘Well, then you ain’t going to talk is you?’ and I didn’t say anything to him, and he says, ‘Well you-, you will say something.’ He was standing right up to the window when he made that statement. The window was closed. That is all he said. I were laying on the bed when he said that, where I could look out the window. I called Mr. Tillet, and it was a good while before I got him ■awake, but after the last statement that he made he shot me.”

The shooting was placed at about 3 o’clock in the morning, and appellant requested the court to instruct the jury “that unless they believed beyond a reasonable doubt that Ethel Wyatt could and did see and recognize appellant to acquit him.” Under the evidence in this case, wherein the prosecuting witness testified that appellant had been sleeping with her, and knew the location of the bed as being next to the window, and that she recognized his voice, it would not entitle appellant to an acquittal if she did not see appellant. It may be that she could only see the bulk of a person, but she testifies positively to him calling her three times, and to other remarks, and that she knew his voice. Appellant also requested the court to instruct the jury that before they would be authorized to convict they “must believe beyond a reasonable doubt that appellant could see tbe prosecutrix on tbe bed.” This is not tbe law, and the court did not err in refusing to give tbe charge. It would be immaterial whether be could see her or not, when tbe record shows that be bad been sleeping in tbe bed with prosecutrix, knew its location, and it was next to the window, and.be fired directly through this window; tbe ball striking the prosecutrix in tbe stomach.

Tbe only other ground alleged is that tbe court erred in refusing to grant a new trial on account of alleged newly discovered testimony. The witnesses swear that since the trial they have gone to this house in the nighttime, one lying on the bed, and the other standing just outside the window, and that a person lying on the bed could not recognize the person on the outside of the window in the nighttime when no moon was shining. If the prosecuting witness had tied her identification of appellant to a personal sight of him, there might be some merit in this application, but the woman, as shown by her testimony hereinbefore copied, said she recognized his voice, and repeats the language he used on that occasion.

There is no contention made that one could not hear another speak when occupying the relative positions, and it seems to be conceded that one could be heard, and it is also conceded that one lying in the position described could see the bulk of the person on the outside, and it is the most natural thing for a person to say who recognized the voice speaking to her at the same time seeing the bulk of this person that she both saw and heard the man, and knew who it was; for she recognized him by his voice.

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


author: DAVIDSON, J.

text:
    BLACK v. STATE.
    (No. 4114.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.)
    1. Larceny <&wkey;40(9) — Variance — Ownership.
    In a prosecution for stealing a lap robe which was alleged to have been in the possession of a husband, and shown by the evidence to be the separate property of his wife, there was not a variance between the proof and allegation, since the separate property of the wife is under the control and management of the husband.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 120, 121, 123, 124; Dec. Dig. &wkey; 40(9).]
    2. Criminal Law <&wkey;369(5) — Evidence—Other Offenses.
    In a prosecution for theft of a lap robe, a question asked a witness if he did not steal whisky from the alleged owner of the lap robe was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822, 823; Dec. Dig. <&wkey;> 369(5).]
    3. Criminal Law (&wkey;706 — Conduct of Counsel.
    In a prosecution for theft of a lap robe, a question asked defendant if he had heard a witness for the state testify that he stood beside defendant’s car, and if it was not a fact that the witness had testified to a lie, was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. <&wkey;>706.]
    4. Criminal Law <©=»720]4 — Misconduct of Prosecuting Attorney.
    In a prosecution for theft of a lap robe, statements of the prosecuting attorney to the jury that he had taken the stand to testify himself because he had seen the defendant make out the owner of the lap robe to be a liar when he knew defendant to be as guilty as a dog, was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1677; Dec. Dig. <&wkey;>720%.]
    5. Criminal Law <&wkey;723(3) — Trial—Misconduct of Prosecuting Attorney — Reversible Error.
    In a prosecution for theft of a lap robe, statements of the prosecuting attorney to the jury that, if they wished to foster crime and cover up offenses brought to light by his department, to find defendant not guilty, and, if so, to write their grounds in the verdict, and never complain to him that crime was prevalent, and that the citizenship would not convict criminals, were reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1676; Dec. Dig. <&wkey;723(3).]
    6. Larceny &wkey;> 13 — Statute—Construction— “Theft.”
    Where defendant obtained lawful possession of a lap robe from the owner or party having the right to give consent, but subsequently appropriated it, he would not be guilty of theft under the general statute, which requires an intention to appropriate at the time of taking.
    [Ed. Note. — For- other cases, see Larceny, Cent. Dig. §§ 32, 33; Dec. Dig. <®=»13.
    For other definitions, see Words and Phrases, First and Second Series, Theft.]
    7. Larceny &wkey;>71(2) — Instructions — Statute.
    In a prosecution for theft, when the facts raise the issues, the jury should be instructed as to the difference between the general statute requiring an intention to appropriate at the time of taking to constitute theft and the statute making a fraudulent conversion of property legally obtained a violation of law.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 192; Dec. Dig. <&wkey;>71(2).]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    J. S. Black was convicted of stealing, and be appeals.
    Reversed and remanded.
    John Speer, of Bowie, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of stealing a lap robe from C. E. Quillen, bis punishment being assessed at a fine of* $25 and 30 days imprisonment in the county jail.

The evidence shows the lap robe was the separate property of Mrs. C. E.' Quillen. It was in a house on the place where the Quillens resided as their home, and was taken from that house. The contention is made that, inasmuch as it was the separate property of the wife, therefore the pleadings should have charged it was in her possession and not in her husband’s; therefore there was a variance between tire proof and the allegation. Possibly it may have been sufficient to charge it in the possession of the wife, but it certainly could be charged in possession of the husband. He was living on the place and was head of the family. Separate property of the wife, as a rule, is under the control and management of the husband. There may be exceptions to that statement, but that is the general rule, especially as applicable to possession. We do not think there is anything in that proposition.

There are three bills of exception reserved to the action of the county attorney. One of these shows that he ashed the witness Shelton while testifying if he did not steal four quarts of whishy from O. E. Quillen while he was working on his place. Prompt objection was interposed, but the witness answered before the court ruled that he had not stolen any whisky from him. The objection was sustained by the court, and the jury instructed to disregard it. Another bill recites that the county attorney asked defendant while testifying for himself, if he had heard the state’s witness Charlie Hart testify in this ease in which he said he stood beside defendant’s car at a given time, and asked defendant if it was not a fact that the said Charlie Plart had testified to a lie in this case. The defendant very promptly answered that he did not care what the county attorney termed it, his testimony was not true; defendant objecting to the question and answer for various and sundry reasons. Among other things he stated that this was done by the county attorney knowing that this would not be permitted to stand before the jury and for the sole purpose of getting such inflammatory testimony into the case, and for the further purpose of getting his individual view before the jury in a manner not prescribed by law; for he had heard said witness Charlie Hart testify as above stated. The court qualified this as he did the previous bill, by stating that the jury was charged not to consider either the question or answer. It is a difficult matter sometimes to say just how far improper questions and answers withdrawn may affect the jury, but without passing here upon these matters, as they will not occur upon another trial, we hope that the prosecution will confine their course of conduct to legitimate matters, and not undertake to put into the ease things that ought not to be for the purpose of influencing the jury or such as are calculated to do so against the defendant when the matter is illegal. Much has been written along this line, and the writer is of the opinion that in such instances the error, if material, ought to be reversible.

Another bill of exceptions recites that the county attorney in his closing argument had discussed various and sundry phases of the testimony and mentioned the fact that he himself had taken the stand and testified in behalf of the state to impeach the truth and veracity of the defendant in the community in which he resided, and said with a great deal of vehemence and positiveness that the reason he had taken the stand and testified he had sat there during the trial and watched the defendant make out Mrs. Quillen a liar when he knew the defendant was as guilty as a dog. Appellant urged various and sundry objections to this, that it was outside the record, not borne out by the testimony, that the county attorney himself had been upon the witness stand and testified, and did not offer to testify as to the merits of the case, and that his statement that he himself knew the defendant to be guilty as a dog was highly improper, not supported by the testimony, was highly inflammatory, that it was insulting, and could not be resented by defendant except to infringe the rules of the court, and showed disrespect to the court, and calculated to and did cause said jurors to believe the statement of the county attorney rather than the testimony of the witnesses, and because of said facts some of said jurors were desirous of giving defendant very heavy penalty as jail sentence and were only prevented by other jurors who were less excited and inflamed over said statement, but who were forced to agree to a conviction to appease the wrath of those who had been influenced by said statements of said county attorney. The court signs this bill with the explanation that the argument was withdrawn from the jury by an oral charge at the time.

Another bill recites that the county attorney, in making his closing argument, dramatically appealed to the prejudices and bias of the jurors for a conviction, and said, in substance, if not in precise words, that if they wanted to foster crime in Montague county, and cover up offenses brought to light by the county attorney’s department, they could return a verdict of not guilty in this case, but that in the event they did so to please write in their verdict when they returned it, upon what grounds they did it, and why they so returned a verdict of not guilty, and that in the event they did so to never complain to him again that crime was prevalent in the county, and that the citizenship would not convict criminals, to which improper argument various and sundry objections were urged. There are other matters stated in the same bill. We are of opinion the last two bills of exception are fatal to this conviction. There have been so many cases written, so many reversals occurred on similar matters and questions, we deem it unnecessary here to refer to those cases. This was such error that we cannot afford to give it the sanction of this court.

The theory of the state was that appellant, who was working as a painter on the property of the Quillens, committed the theft of the lap robe and tools it away for the purpose of appropriating it. Appellant’s contention was supported by the testimony of himself and another witness that he was working for the Quillens as stated at Nocona in Montague county, and, being without a coat, it having turned cold, he borrowed a coat and the lap robe from Mrs. Quillen to use in returning to his home in Bowie, in the same county. This was the issue in the case. It is not the purpose here to go into detail. The court charged the jury if he borrowed the lap robe from Mrs. Quillen, or-if there was a reasonable doubt of it, they should acquit. There were some exceptions to the court’s charge, and requested instructions which were refused which perhaps more nearly presented the question. Of course, if appellant borrowed the lap robe, there could have been no theft at the time he obtained possession of it. There is some testimony showing that he kept the lap robe for some time after obtaining it. He explains this by stating that the weather was cold and he did not return to Nocona to work, and gave it to another party with money to pay for its return through proper channels to Mrs. Quillen at Nocona, but this party did not do so, and he did not know this until the day he went to Nocona in his car and took the lap robe with him. There seems to have been a match game of tennis or baseball between the Nocona team and that from the town of Bowie; the excitement being rather acute. Mrs. Quillen on that day obtained the robe from him. He told her at the time she claimed it that it was hers, and that it did not belong to him. These matters are briefly stated. We are of opinion that upon another trial, in order to present these matters more accurately and definitely under the close questions made, the jury should be instructed that, if he obtained possession of the lap robe from Mrs. Quillen and took it under the idea that he had a right to use it for the time, his failure to return it would not constitute theft. In other words, if he obtained possession lawfully with consent of the owner or party having a right to give consent, but subsequently appropriated it, it would not be theft under the general statute. Theft under the general statute consists of the intention to appropriate at the time of the taking. Any lawful possession would not be theft under that statute. We have another statute which was passed to avoid the weakness of the general statute by making the .subsequent fraudulent conversion of property when legally obtained a violation of the law. These statutes make a distinction which should be observed whenever the facts raise these different issues, and the jury should be properly so instructed.

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


author: PRENDERGAST, P. J.

text:
    POWELL v. STATE.
    (No. 4106.)
    (Court of Criminal Appeals of Texas.
    May 31, 1916.
    Rehearing Denied June 21, 1916.)
    1. Criminal Law <&wkey;1038(l) — Appeal — Objections TO CHARGE.
    Objections to the court’s charge not made at the time of the trial are too late.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <&wkey;>1038'(l).]
    2. Criminal Law <&wkey;>923(l) — New Trlal — Conduct op Juror.
    Where the jurors were questioned together on their voir dire examination and were asked whether any of them had ever had daughters who ran away and married, that a juror did not hear the question and that if he had he would have answered that one of his daughters had done so, and have caused Ms peremptory challenge by the defendant, was no ground for a new trial where the juror further testified that he had become reconciled to her marriage and that it did not influence his verdict.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2225; Dec. Dig. i&wkey;>923(l).]
    3. Criminal Law <&wkey;932 — New Trial — Conduct op Juror.
    Where the jury had decided that defendant was guilty, and while it was discussing whether to suspend Ms sentence, remarks of a juror, in conversation with others, not made as an argument against suspension of the sentence of which he was in favor, and which remarks had no effect whatever upon the sentence, were no ground for reversal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2238; Dec. Dig. <@=»932.]
    4. Criminal Law <&wkey;925(l) — Conduct op Jury — New Trial.
    The fact that a juror in a criminal case agreed to the verdict as rendered, because he did not want to have a “hung” jury, did not entitle the defendant to a new trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2238, 2246; Dec. Dig. t&wkey;> 925(1).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    R. S. Powell was convicted of subornation of perjury, and be appeals.
    Affirmed.
    G. H. Crum and T. C. Hutchings, both of Mt. Pleasant, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of subornation of false swearing, and his punishment assessed at the lowest. The great preponderance of the testimony was amply sufficient to sustain his conviction. 1-Iis testimony alone was almost sufficient to do s'o.

No objections whatever were made to the court’s charge at the time of the trial. In appellant’s motion for a new trial, he criticises it in two or three particulars. None of the complaints present any fundamental error. His objections come too late under the express provisions of the recent laws of that subject and the uniform decisions of this court thereunder since then.

In his amended and supplemental motion for a new trial, he attacked the verdict in these particulars: (b) That the juror McKee failed to answer a question on his voir dire examination, which if he had answered would have caused appellant to have peremptorily challenged him; (c) that the juror Stringfellow discussed in the jury room, while the jury was considering its verdict, that he once had a girl to run away and marry without his consent; (d) that the juror Jenkins was unable to read and write, and he failed to disclose that fact when asked the question by the court in qualifying the jurors; (e) that Morgan agreed to a verdict as rendered because he did not want to have a “hung” jury. As a part of the motion, he attached some affidavits merely as a pleading. These were not introduced in evidence when the court heard the testimony on his grounds of attack. The agreed statement of facts shows that none of them were offered in evidence.

The court heard the testimony, in acting on said motions, of every juror who sat upon the case. From the whole of it, as well as practically each juror, the court was fully authorized to find that none of appellant’s contentions wore sustained, and that he was correct in overruling the motions. Their testimony disclosed, without any controversy, that soon after the jury retired, and practically without any discussion, they took a vote and unanimously voted appellant guilty. None seemed to hesitate to so vote, and each of them testified that they considered nothing whatever in arriving at their verdict gxcept the evidence introduced and the charge of the court.

It appears that in questioning the jurors on their voir dire examination they were, all questioned together, not singly. It seems among other questions appellant’s attorney asked the jury whether or not any of them ever had any trouble in their family, or any family of their near relatives, as to the running away and marriage of minor children, especially girls. The juror McKee swore he never heard the question; that, if he had, he would unhesitatingly have answered it to the effect that at one time one of his daughters did run away and get married. His testimony further shows that he had long since become reconciled to that marriage, and that it would have in no way influenced him in finding a verdict in this case, and did not do so. This would in no way have disqualified this juror from sitting in this case; in other words, it would not have been a cause for challenge. Appellant’s attorney is not shown to have pressed the inquiry to this juror any further, but seems to have assumed that, because he did not answer that he had had such trouble, he had not had. As shown by the testimony heard on the motion, no error is shown in the court’s denying a new trial on that ground.

Appellant properly plead for a suspended sentence. The court submitted the question to the jury. The verdict expressly stated they did not recommend a suspended sentence. As soon as all of the jurors unanimously agree and found that appellant-was guilty, they then took up the question of the number of years they would assess as his punishment and whether or not they would suspend his sentence. Eight jurors were opposed affirmatively to suspending his sentence at all and wanted to fix his punishment at two years. Four at first desired to suspend his sentence. These four wavered at first, some of the jurors expressing a willingness to assess the punishment at five years if they could agree on a suspended sentence. The others refused to do this. It seems that one or more of the four at different times agreed with the other eight not to suspend the sentence. While they were “hung up” on whether or not they would suspend the sentence, Mr. Stringfellow swore that, when sitting back with one or two of the jurors, they were talking, and he merely said to them that he had a daughter that ran away with .a fellow without obtaining his consent, but she was of age, and it was all right, and he thought well of it. He and all who heard it swore that the remark was not made as an argument against suspension of his sentence, and that it had no effect whatever upon them, but that they found their verdict solely on the evidence introduced and the charge of the court. Mr. Stringfellow himself was at first in favor of suspending the sentence, and it seems that some of the others who heard him perhaps were also. The other jurors swore they heard no such remark from Stringfellow, or any other juror. Finally, the jurors agreed unanimously on the lowest punishment and not to suspend the sentence, and their verdict so stated. We think none of this shows any injury to aifpellant and would not entitle him to a new trial. It occurs to us that, if anything, it may have been beneficial to him. At any rate, it presents no ground for reversal.

No proof whatever was offered to sKow that Jenkins could neither read nor writ. His testimony would clearly indicate that he could, though he made no direct answer to that effect and was asked no question on the subject.

The fact that Morgan agreed to the verdict as rendered because he did not want to have a “hung” jury would in no way entitle appellant to a new trial. A great many verdicts—in fact, most of them—in cases coming to this court, indicate clearly compromise verdicts; that is a yielding of first contentions and abandoning them finally, thereby succeeding in the assessment of a lower penalty or some other advantage to an accused.

The trial judge saw the whole conduct of the trial, heard all the testimony thereon, and then heard the testimony of every juror on said motions for a new trial. He, of course, was better qualified to determine the issues of fact raised by tbe motions than this court can possibly be. His finding denying a new'trial on the grounds set up was amply justified by the whole testimony of the jurors, and this court is in no position to substitute its judgment for his under the circumstances.

The judgment is affirmed.
      <S^>For other cases see same topic and’KEY-NUMBER in all’Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 4116.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    Criminal Law <&wkey;942(l) — New Trial — Newly Discovered Evidence — Impeaching
    Testimony.
    Affidavits, showing that one of the main witnesses for the state had a bad reputation for truth and veracity, did not support motion for new trial on the ground of newly discovered testimony ; since testimony which is only impeaching does not afford ground for new trial for newly discovered testimony.
    _ [Ed. Note. — For other cases, see ■Criminal Law, Cent. Dig. § 2331; Dec. Dig. <&wkey;942(l)J
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge.
    John Johnson was convicted of murder, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The jury convicted appellant of murder, allotting the death penalty.

It is unnecessary, we believe, to give a statement of the facts. While appellant makes a serious contention that the evidence is not sufficient, we do not agree with that contention. The facts and details are numerous, covering over 150 pages of the transcript, and show a brutal paurder by somebody. The evidence shows two parties did the act for the purpose of taking money and other things. The deceased, Jones, evidently engaged them in vigorous battle. Larkin was convicted and hung for the same murder. The confession of defendant placed his case beyond the pale of circumstantial evidence. I-Iis confession is direct, in which he gave some details of the fight and killing.

In his amended motion for a new trial, defendant alleges newly discovered testimony, setting out the affidavits of two witnesses. These affidavits show that one of the main witnesses who testified for the state had a bad reputation for truth and veracity. These parties lived in Waxahachie, in Ellis county, a number of years, as did the witness who testified. This could hardly be used as newly discovered testimony, even if it affords sufficient grounds for reversal otherwise. If the witness had the general reputation for want of veracity in the neighborhood where all these witnesses lived, it ought to be assumed, or presumed, that other witnesses would have known this fact. Testimony, which only is impeaching, does not afford a ground for a new trial. There must be something more than the mere question of impeachment to authorize the granting of a new trial for newly discovered testimony. The state filed a contest and placed affidavits in the record which show confessions of the defendant, which could be produced upon another trial. Two witnesses, Aiken and Watson, filed affidavits which would show upon another trial of the defendant his confession, which was made to each one of those affiants. Motion was made by the attorneys for appellant to strike these from the record, which was overruled by the court. It should not be necessary to here decide whether the court erred or not in refusing to eliminate those affidavits. The showing made by the appellant of the ground of newly discovered evidence does not come within any rule of newly discovered testimony; and the affidavits filed by the state certainly could not be of any benefit to appellant on another trial, because they contain statements by the appellant which, if sworn to, would show his unquestioned guilt. So, from any standpoint, it could not be contended that the testimony, either for the state or for appellant, could have produced a different result, inasmuch as the impeaching testimony is not a ground for a new trial and the affidavits of the confession could not benefit the appellant. The punishment would hardly be reduced from the death penalty to some term of imprisonment in the penitentiary on additional confessions. Additional confessions could not be accorded as testimony favorable to appellant.

For the reasons given this judgment will be affirmed.


text:
    PEARSON v. STATE.
    (No. 4108.)
    (Court of Criminal Appeals of Texas.
    June 7, 1916.
    Rehearing Denied June 23, 1916.)
    1. Criminal Law <&wkey;875(4) — Verdict — Motion in Arrest.
    Where no objection was made to the verdict when rendered or to rendition of judgment on the verdict, but was first raised on a motion in arrest of judgment, the misspelling of the word “years” in the verdict, otherwise perfect, could not vitiate it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2090; Dec. Dig. &wkey;>875(4).]
    2. Criminal Law &wkey;338(l) — Evidence—Admissibility.
    In a prosecution for robbery of whisky, testimony of a witness that on several occasions one of the parties robbed had passed through the county with a wagonload of whisky, and that he was unlawfully introducing it into Oklahoma, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 755, 756, 787, 788, 801; Dec. Dig. &wkey;>338(l).]
    3. Criminal Law <&wkey;>419, 420(10) — Evidence —Admissibility—Hearsay.
    In a prosecution for robbery of whisky, testimony of a witness that she had heard defendant say that there was more whisky in a box from which she had seen him take two quarts of alcohol, and of a conversation which she had heard defendant have with a veterinary doctor, were inadmissible as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983; Dee. Dig. <$=3419, 420(10).]
    4. Criminal Law <&wkey;603(ll) — Application foe Continuance — Diligence.
    Where in her affidavit an absent witness whose testimony is assigned as a ground for continuance, does not swear that she was ever subpoenaed, and it does not appear -that she was not able to appear on the day following the application for continuance, no diligence was shown.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 1359, 1360; Dec. Dig4. &wkey;> 603(11).]
    5. Criminal Law <&wkey;595(2) — Continuance.
    In a prosecution for robbery of whisky, where the only admissible testimony of an absent witness was that defendant the day before the robbery had taken two bottles of alcohol out of a box in her presence, the refusal of the court to grant a continuance was not error, since the fact was immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1323; Dec. Dig. &wkey;595(2).]
    6. Criminal Law <$=31169(1) — Harmless Error — Evidence—Value of Property Taken.
    • In an indictment for robbery, it is not necessary to allege the value of the property taken, and it not affecting the penalty, error in the admission of testimony as to the value was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. <&wkey;>1169(l).]
    7. Criminal Law >&wkey;1122(6) — Appeal—Instructions.
    Where it does not appear that requested instructions were presented to the judge at the time required by the statute, they will not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2945; Dec. Dig. <&wkey;1122(6).]
    8. Robbery <$=326 — Instructions.
    In a prosecution for robbery in taking whis-ky by force under pretense that accused was a deputy sheriff, refusal of requested peremptory instructions, for acquittal, that the testimony was insufficient to establish the offense alleged, but, if any, swindling, and to acquit, was not error.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 37; Dee. Dig. &wkey;>26.]
    9. Criminal Law <&wkey;814(17) — Appeal and Error — Review — Instructions — Circumstantial Evidence.
    In a prosecution for robbery, as the robbery occurred in ordering persons robbed away from the wagon at point of a pistol, and taking charge of the wagon containing the whisky, shown by positive testimony, and not in coming back later, refusal to charge on circumstantial evidence was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979; Dec. Dig. <&wkey;> 814(17).]
    10. Criminal Law <&wkey;730(16) — Trial—Arguments of Counsel.
    Where the court instructed the jury to disregard improper arguments of the county attorney, and in his qualification shows that the argument was provoked by argument of appellant’s attorneys, there was no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <©=3730(16).]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Mat Pearson was convicted of robbery with firearms and he appeals.
    Affirmed.
    W. F. Weeks, of Wichita Falls, W. W. Cook, of Montague, and W. W. Alcorn, of Bowie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of robbery with firearms, and his punishment assessed at five years in the penitentiary, the lowest authorized by law.

The indictment is in strict accordance with the statute, and in the exact form laid down in 2 Branch’s Ann. P. C. § 2380, page 1300, and is good against all of appellant’s objections thereto. See the authorities cited by Mr. Branch, page 1301.

The verdict of the jury was;

“We, the jury, find the defendant, Mat Pearson, guilty as charged in the indictment and assess his penalty at five yeas confinement in the penitentiary.”

As seen, the verdict is in every way perfect, except the spelling of the word years, the r being left out. No objection to the verdict at the time it was rendered was made, nor to the rendition of the judgment, at the time, assessing his punishment at five years in the penitentiary in accordance with the verdict. It was first thereafter raised when he filed a motion in arrest of judgment on that account. The charge of the court may, and should, be looked to in aid of the verdict. 1 Branch’s Ann. P. O. 332, for cases. The charge told the jury in the first paragraph that the punishment might be death or confinement in the penitentiary for any term of years not less than five. Again, in submitting the ease to them for a finding, he told them that if they found him guilty, to assess his punishment at death or confinement in the penitentiary for any term not less than five years. From the charge and the verdict, no one could possibly reach any other reasonable conclusion than that the jury intended and actually assessed his punishment at five years in the penitentiary. That they misspelled the word years as yeas under no circumstances could vitiate the verdict.

The testimony clearly showed this state of fact: About 8 o’clock on the night of October 13, 1915, appellant tried to hire Mr. Manly who ran a service automobile, to drive him out that night 'two or three miles in the country. Manly asked him what he was going to do out there. Appellant replied that it was none of his business; that he would pay him for it. Manly then told him he would not go without knowing what he was going to do out there. After some further parleying, appellant told him that there was going to be some bootleggers through the country who were going to camp out there for the night, and he wanted to go out there and get the whisky; that he was going to get it. He said “We’ll hold them up and get it.” That he was going to play sheriff and tell them that he came after the whisky. He also told Manly then how much whisky there would be — a wagonload, 19 or 20 cases. Manly refused his services. Appellant then procured Mr. Antrim to haul him out there in his (Antrim’s) automobile, agreeing with Antrim where he could be picked up after he started. Antrim picked him up at the place agreed upon, and also another man, whom Antrim did not know, and who was not identified. Antrim hauled appellant and this man out just past where Charles Hare and George Collins were camped, about two miles out of Nocona, with a wagonload of whisky. After passing them, he stopped, turned around, and went back opposite the wagon, where Hare and Collins had gone to bed. Appellant and his companion got out of the automobile, went to the wagon where these persons had gone to bed, and appellant drew and presented his pistol to them, ordered them up and out of the wagon and into the automobile, with which they complied. He asked them what they had in the wagon, and Hare told him 19 cases of whisky. Appellant falsely told them that he was the sheriff of the county, and intended to take them to Montague, the county seat, that night. Hare, the owner of the liquor, and Collins, too, tried to get him to let them hitch up their team to the wagbn and take it hack into the town of Nocona with them. This was on their direct route to Montague. He refused to permit this, but told him he would himself get a man to put in charge of it, and immediately did, going a short distance and getting another man, not identified, who evidently was one of his pals, and put him in charge of the wagon and team and liquor. Appellant then, with his companion, after forcing Hare and Collins into the automobile, as stated, got in and ordered Mr. An-trim to drive them to a certain point, which was a mile or more beyond Nocona, towards Montague, passing through Nocona in a circuitous route to prevent being seen, and there had Antrim to stop his automobile, claiming that it had broken down. He then ordered Hare and Collins out of the automobile. He then told them that probably the county attorney would not prosecute them even if he took them to Montague, and that he had concluded if they would go on — beat it and say nothing about the matter — he would turn them loose. They promised, and he turned them loose. On his way back, at their instance, he had them hauled back a part of the way to Nocona. After Hare and Collins got to Nocona, they proceeded on foot to get their loaded wagon and team that night. Before reaching the point where they had been robbed, they met appellant coming back in the automobile from the direction where they had camped, and saw then either the whole or at least - a part of said cases of liquor in the automobile, and appellant then told them that he had left them a little package. After thus meeting appellant, and before reaching where they had camped, they met their wagon and team and the man whom appellant had placed in charge of it, but all of the liquor had been taken. Antrim hauled appellant and his companion and the liquor they had placed in the automobile back to appellant’s barn, where they that night secreted said cases of liquor. Some time the next evening the officers searched appellant’s barn, but at that time found none of the cases of liquor therein. )Ve have not given all the evidence in detail. We regard it as unnecessary. Appellant did not testify. He had his wife and others to attempt to establish an alibi for him by testifying that he was at home the night of .this robbery.

Appellant has a bill of exceptions to the court’s overruling his application for a continuance. It is very brief, merely stating that the court overruled his application, “which application has been filed in this cause.” The bill does not contain the application, or any part of it. We find it in the record. It was based on the absence of said Collins, by whom he expected to prove that he (Collins) could not and would not identify appellant as the party who perpetrated said robbery. The state later produced Collins, who testified to the reverse of what appellant said he would prove by him, and he swore positively in various ways to the identity of appellant as the robber. Another absent witness was Mrs. Johnson, whom he said he had had subpoenaed, as the attached subpoena would show. No subpoena is attached to the motion showing any such thing. He also claimed that she was sick, as shown by the certificate of a doctor attached. No such certificate is attached. He alleged that she would testify that the day previous to the night of the robbery appellant brought home some whisky and set it down on the porch, where she was washing for him at his house, that a part of this was alcohol which he had secured to doctor his horse’s leg with, and that she had heard a telephone conversation by appellant with a veterinary doctor, asking whether the alcohol would blister the horse’s leg. Another absent witness, Crow, he says, he believes would testify that on several occasions said Hare passed through Montague county with a wagonload of .whisky, and that he was unlawfully introducing it into Oklahoma. This evidence by Crow would have been' wholly inadmissible. The other absent witness he claimed was Ellis, who was later • produced and testified. The court, in overruling his application for a continuance, says he tendered appellant attachments for said witnesses; that i t was about 3 o’clock in the evening at the time he overruled this motion, and it was not prol> able that the taking of testimony would begin until the next day, Saturday, nor probable that the case would be concluded before the following Monday, and that the court thought the said witnesses, who were within 9 or 10 miles from Montague, could be had before the testimony closed, and that he did not then consider testimony of the claimed witnesses material. Appellant did not avail himself of any writ of attachment offered by the court, and does not claim to have had any issued or attempted to be served. To his motion for a new trial, filed some time after the trial was concluded, he attached the affidavit of Mrs. Johnson. She does not swear therein at all that she had ever been subpoenaed as a witness in the cause, nor does she swear that she was sick at the time of the trial, or give any reason why she was not subpoenaed or was not present. She does swear that on the 12th or 13th of October, appellant “brought a box and set it down to the tub where I was washing,” and took out' two quarts of alcohol, and he said one bottle was to wash his mare’s leg with, and asked her if it would take the hair off of it. She asked who prescribed it, and he told her the veterinary doctor, and she told him to phone the doctor, which he did. That she heard appellant say there was more whisky in the box, but she did not remember just how many he said there was. It will be seen that she did not know what was in the box other than she says he took out two quarts of alcohol. What he said to her would be hearsay, and also the telephone conversation between him and the veterinary doctor would be hearsay; but outside of this, he proved by disinterested witnesses that the day before the robbery he did receive by express some liquor, and by the veterinary doctor that he had advised him to use alcohol on the sore leg of his horse, and had a conversation with him over the phone about whether or not alcohol would take the hair off the horse’s leg. Erom the whole testimony, it is clear that the alcohol and two quarts of whisky which were found in appellant’s stall the evening after the night of the robbery was the liquor that he had received through the express company the day before, and was no part of the whisky he took from Hare. In the first place, under the showing he made, he was wholly lacking in diligence in procuring Mrs. Johnson’s attendance. Even if it could be conceded that she was sick on Friday evening when he filed his application for a continuance, it is not shown, nor attempted to be shown, that she was too unwell to have attended the next day or the Monday following; and the mere fact, which seems to be all that her testimony would have been admissible for, that appellant the day before the robbery set a box down in her. presence, of which she did not know the contents, and that he took two bottles of alcohol out of it to doctor his horse with, under the circumstances of this case is of such minor importance the court was not required to grant a continuance or new trial on that account, nor would this court be justified in reversing the case.

In an indictment for robbery, it is unnecessary to allege the value of the property taken. The value does not affect the penalty. Where such an allegation is made, it should be treated as surplusage. Winston v. State, 9 Tex. App. 143; Williams v. State, 10 Tex. App. 15; Kelley v. State, 34 Tex. Cr. R. 413; 31 S. W. 174; Williams v. State, 34 Tex. Cr. R. 531, 31 S. W. 405; and many other cases. So the court committed no reversible error when it permitted Oollins to testify that the value of the liquor was $195 in Wichita county, he claiming that the value in Montague, and not Wichita, should have been proven.

Appellant requested several special charges, among them a peremptory instruction of acquittal; another, that the testimony was insufficient to establish the offense alleged, but, if any, swindling, and to acquit; another, that the offense alleged could only be committed by fraudulently taking property away from a person, and not by taking the person away from his property, and to not consider the testimony of Oollins, because it does not show, or tend to show, the offense alleged, but only that of swindling, if anything, and he requested some others unnecessary to mention. None of these charges should have been given. None of them are shown to have been presented to the judge at the time required by the statute, nor is any reason shown why they should have been given. It is merely stated that appellant requested the charge, copying it, and the court refused to give it. Clearly, under the statute, and the many decisions of this court, these matters are not presented in a way that we are required to review them, but if we could, none of them should have been given. See Ross v. State, 170 S. W. 305, and many other cases since then following that decision. Also Ryan v. State, 64 Tex. Cr. R. 637, 142 S. W. 878, Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068, and many other cases since then following them. Clearly, under the law, no charge on circumstantial evidence was called for. Under the testimony, the robbery occurred at the time appellant threw his pistol down on Hare and Collins, commanded them to get out of the wagon and into the automobile, and he himself took charge of the whisxy and placed one of his pals in custody thereof. The robbery did not occur when appellant later came back and took, part or all of the whisky and put it in the automobile; but, even if it did, this was shown by positive testimony. Under no circumstances did the testimony call for a charge on circumstantial evidence.

The only other question raised is several complaints and bills to different short" utterances in the argument of the county at torney. There were several of these. We think it unnecessary to detail them. In most Instances, we think the county attorney was not out of the record, and had the right to argue as he did. In other instances, the court gave appellant’s instructions to the jury, where proper, to disregard the argument, and still in addition the court by his qualification shows that the argument was provoked by and called for in answer to the argument of appellant’s own attorneys. Such matters are frequently before us, as they have been always. In several .recent cases, we have discussed such matters and the rules applicable thereto, going back to many of the early decisions where the rules were laid down. We think it unnecessary to again discuss this question, but instead will refer to some of these decisions. Marshall v. State, 182 S. W. 1108; Little v. State, 178 S. W. 826; Kinney Miller v. State, 185 S. W. 29; and Judge Davidson’s concurring opinion, 45; Mooney v. State, 176 S. W. 56. It is unnecessary to collate the great number of cases along the same line.

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

      ©=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes