author: BROWN, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. GRESHAM.
    (No. 2369.)
    (Supreme Court of Texas.
    June 17, 1914.)
    1. Carriers (§ 348) — Injury to Passengers — Defective Steps — Action—Instructions — Contributory Negligence.
    Where plaintiff, a passenger, slipped on the steps of one of defendant’s coaches as she was alighting, because the steps had become slippery from wet dirt accumulated thereon, an instruction that, though the jury might believe defendant was negligent as to the issues submitted in another paragraph of the charge, yet, if plaintiff was guilty of contributory negligence in not holding to the handholds attached to the coach near the steps, which directly and proximately contributed to her injury, if she was injured, they should return a verdict for defendant correctly submitted the defense of contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§' 1403-1405; Dec. Dig. § 348.]
    2. Carriers (§ 280) — Injuries to Passengers — Care Required.
    A carrier’s duty to exercise the high degree of diligence which would be exercised by very prudent persons under similar circumstances is not limited to the operation of its cars and trains.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.]
    Error to Court of Civil Appeals of Fifth Supreme Judicial District.
    Action by Lucile Gresham, by her next friend, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff affirmed by the Court of Appeals (140 S. W. 483), and defendant brings error.
    Affirmed.
    E. B. Perkins and D. Upthegrove, both of Dallas, and Scott & Ross, of Waco, for plaintiff in error. Frazier & Shurtleff, of Hills-boro, and C. L. Black, of Austin, for defendant in error.

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

   BROWN, C. J.

This suit was instituted in the district court of Hill county by J. R. Bragg,.as the next friend of Lucile Gresham, against the St. Louis Southwestern Railway Company of Texas, in which it was charged: That Lucile Gresham took passage on the defendant railroad at a station named Frost, in Navarro county, to go to Hillsboro, in Hill county. She had a regular ticket, and took her seat in the car, where she remained seated until she reached her destination at Hills-boro. During the time she was on the train there was a rain that fell at some point not designated. When the train reached Hills-boro the porter, or some one in the employ of the railroad company, directed her to leave the car, as that was the station of her destination. That when she reached the platform of the ear and started to descend the steps leading therefrom to the ground she found the steps to be wet and slippery, a large amount of water and mud having accumulated thereon, and on account of the condition of the steps she slipped and fell, striking her back on the steps, and sustaining severe and permanent injuries.

In her petition she claimed $25,000 damages, and charged that the condition of the steps constituted negligence on the part of the railroad company and was the cause of her injury, which occurred in this wise: When she started down the steps her feet slipped from under her, and she fell, striking the lower part of her back upon one of the steps, whereby she was greatly injured, and suffered great mental and physical pain. The negligence charged was in the failure to keep the steps upon which the passengers were to descend in a safe condition, and the proof was sufficient to authorize the jury to conclude that the dirt had accumulated upon the steps of the car through the neglect of those charged with the care of it, and that the rain which had fallen had caused the dirt so accumulated to become slippery and render the steps unsafe. The jury could have found that there was an iron rod extending down the side of the car and above the steps to which she might have held with her hand, and which she did not do.

The defense of the railroad company was negligence on the part of Miss Gresham in failing to take proper care in descending the steps; i. e., that she failed to look and see the condition of the steps before she put her foot on the step, and failed to avail herself of the rod which would have supported her and prevented her falling.

The trial resulted in a judgment in favor of the plaintiff for $6,000, and a new trial was denied by the court on the application of the railroad company. The judgment of the district court was affirmed by the Court of Civil Appeals, and this court granted a writ of error upon the ground that the district court erred in giving the sixth paragraph of its charge, and also in refusing to give the second paragraph of the charge requested by the railroad company.

The evidence was sufficient to sustain the finding of the jury that the railroad company was negligent in permitting the steps to-be in the condition in which they were at the time that Miss Gresham was injured, and we find no reason for disturbing the judgment of the district court and the Court of Civil Appeals, unless it be in respect to the matters designated in the granting of the writ of error as above stated. We will therefore proceed to the examination of those questions of law.

The sixth paragraph of the court’s charge reads:

“Even though you may believe from the evidence that the defendant was guilty of negligence in respect to the issues submitted to you in paragraph two of this charge, still, if you believe plaintiff was guilty of contributory negligence, as that term is hereinbefore defined, in not holding to the handholds attached to said coach near the steps in question, which directly or proximately contributed to her injury, if she was injured, you will return a verdict for the defendant.”

The charge correctly states the law applicable to the facts, and correctly submits to the jury the only act of contributory negligence which is suggested by the evidence, and the court correctly refused to submit the matters suggested in special charge No. 2, requested by the defendant, because there was no evidence to support it.

The court correctly states the measure of diligence which the law requires of passenger carriers; that is. the high degree of - diligence which would' be exercised by very prudent persons under similar circumstances. I. & G. N. Ry. Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Allen v. Galveston City Railway Company, 79 Tex. 631, 15 S. W. 498. The limitation of such diligence to the operation of the ears would be unreasonable and without support in the law.

We find no error in the proceeding of which plaintiff in error can complain, and the judgment is affirmed.


source: Caselaw Access Project

author: PHILLIPS, J.

license: Public Domain

text:
    CEARLEY et al. v. MAY.
    (No. 2327.)
    (Supreme Court of Texas.
    June 17, 1914.)
    1. Deeds (§ 70)— Fraud — Cancellation.
    A conveyance of land in fee induced on the promise of the grantee that he would execute a written agreement to reconvey when his use of the premises .for the purpose of removing the rock therein had terminated, while he did not at the time intend to perform his promise, was procured by such fraud as warrants the cancellation of the conveyance.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. § 70.]
    2. Cancellation oe Instruments (§ 24) — Condition Precedent.
    Where an owner of land contracted to sell the rock thereon with the right of the purchaser to erect a crusher and to use the surface so long as the crusher was operated, and he received the compensation agreed on, but executed a deed in fee of the land by the fraud of the purchaser, the owner, seeking a cancellation of the deed, was not required to return -the consideration, but the court could by its judgment protect the rights of the purchaser •under the sale of the rock and the-privilege of using the land for its removal.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent.Dig. §§ 33 -38; Dec.Dig. § 24.]
    . Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by It. N. Cearley and another against John May. There was a judgment of the Court of Civil Appeals reversing a judgment of the district court, and plaintiffs bring error.
    Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.
    W. H. Bullock, of Decatur, for plaintiffs in error. McMurray & Gettys, of Decatur, for defendant in error.

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

   PHILLIPS, J.

The suit of the plaintiffs in error was predicated upon substantially the following allegations found in their petition: That, being the owners of a certain described tract of land in Wise county, they sold to the defendant May, on or about September 23, 1906, all the rock on the land suitable for crushing and use as ballast, the purpose for which he sought its purchase, witty the understanding that he should have the right to erect a crusher upon the land and to the use of its surface in that connection so long as the crusher was operated, but possession of the land to be returned to them as soon as the crusher was removed; that they were ignorant of the forms of conveyancing, and that defendant agreed to have an instrument prepared properly expressing the agreement, which they relied upon him to do; that he caused a general warranty deed to be prepared, by its terms conveying the land to himself, and presented it to O. N. Oearley, one of the plaintiffs, who ignorantly executed it, but afterwards discovered that it contained no provision for the reversion of the title ; that thereupon the defendant, intending to deceive the plaintiffs, and knowing that the other plaintiffs relied upon Oearley to see that the agreement was properly drawn, represented that the proper method in the transaction was for the plaintiffs to execute the deed, and for him to make a contract containing provisions for the reversion of the land to the plaintiffs after the removal of the crusher, which he would have prepared and would execute; that, relying upon such representation, they were induced to execute and deliver the deed to the land, but the defendant, with the intention to deceive and defraud them by securing the title to the ■land, had refused to execute such agreement; that he erected a crusher upon the land, taking therefrom such rock as was suitable for his purpose, and afterwards removed the crusher and returned the possession of the land to the plaintiffs, but was claiming the title under the deed, and was attempting to dispose of it. Under these allegations, they prayed judgment for the land; that the cloud cast upon their title by the deed be removed; for cancellation of the deed; and for general relief.

The defendant answered by a plea of not guilty; that he held the land under an absolute deed; that there was no written agreement binding him to reeonvey the land; and, if there was any agreement to that effect, it was void under the statute of frauds, because not in writing.

The trial court rendered a judgment for the plaintiffs canceling the deed and removing the cloud from the title; but decreed that May should have possession of the land for a term of five years for the purpose of blasting, crushing, and removing the rock therefrom, with the right to reasonable use of the land for that purpose, and to erect necessary improvements, which he was privileged to remove at any time before the expiration of the term stated. The honorable . Court of Civil Appeals for the Sixth District reversed the judgment on May’s appeal, and remanded the cause upon the ground,- as stated in its opinion, that the plaintiffs were entitled to a cancellation of the deed only upon their rescission of the entire agreement and May’s restoration, as nearly as possible, to his original status; that, as the evidence showed he had not, at the time of the trial, exhausted his rights to all of the rock on the land, and had paid the plaintiffs the full consideration, even under their version of the agreement, no part of which they had offered to return, in the state of the pleading and the evidence a judgment depriving him of the legal title to the land was unauthorized.

According to the evidence introduced by the plaintiffs, the deed in question was obtained under circumstances substantially as charged in the petition; that is, by means of a representation or promise, made by the defendant and relied upon by the plaintiffs, that he would execute and deliver to them a written agreement to reconvey the land when his use of it for the purpose stated was ended, a promise he did not at the time intend to perform, and had not performed. This amounted to such fraud as would warrant the cancellation of the deed as a conveyance of the land. Railway Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39.

True, the plaintiffs neither sought nor offered a rescission of their sale to the defendant of the rock upon the land and the incident right to the use of the land for its removal and conversion into ballast or cement, which they claimed, and the trial court found with support in the proof, was the real transaction between the parties and extent of their agreement. But was this necessary to entitle them to the cancellation of the deed,, operating, as it did, to convey their land, which they had neither sold nor agreed to sell, and obtained, as the court found, by fraudulent means? The court having found that the actual agreement was as the plaintiff claimed, all that was sold to the defendant was the rock and the use of the land for the purpose stated, and that was all he paid for in the consideration which they received. They had performed the agreement in part by surrendering possession of the land for this purpose and delivering a part of the rock, and their attitude in the case was one of willingness to complete its performance. They sought no relief against the actual agreement, but only against the fraud by means of which an absolute deed to their land was obtained, which was entirely beyond the purview of the agreement. On proof of the fraud they were entitled to a cancellation of the deed. But, in seeking such a cancellation, a party is under no obligation to return, or offer to return, that which he is entitled to retain. 6 Pomeroy’s Eq. Jur. § 688. They had sold the rock and the right to the use of the land for a reasonable time. They were entitled to have that sale stand, and were not required to return its consideration in order to have restored to them something to which the defendant was not entitled. It was the duty of the court to protect by the judgment the rights of the defendant under the sale of the rock and the privilege of using the land for its removal, and this the court did by decreeing that for such purpose he should have possession for a period of five years, which, under the circumstances of the case, cannot be deemed other than adequate equitable provision for his benefit.

The judgment of the Court of Civil Appeals is reversed, and that of the district court affirmed.


author: HARPER, J.

text:
    JAMES v. STATE.
    (No. 3107.)
    (Court of Criminal Appeals of Texas.
    April 20, 1914.
    Rehearing Denied June 3, 1914.)
    1. Cbiminal Law (§' 1134) — Appeal—Matters Review able.
    An exception to the court’s action on defendant’s challenge of jurors for cause would not be considered on his appeal from a conviction, where the challenged jurors did not serve on the jury, and it was not shown that any objectionable juror was forced on defendant by reason of his being required to peremptorily challenge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. § 1134.]
    2. Jury (§ 80) — List — Demand eoe Full Panel.
    In view of Code Or. Proc. 1895, art. 683, which provides that the clerk in the district court shall draw from the jury box the names of 24 jurors, or so many as there may be, and furnish a list to defendant, the overruling of defendant’s demand for a full panel of 32 names, before passing on the list which contained 27 names, was not error.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 360-366; Dec. Dig. § 80.]
    3. Jury (§ 82) — Summons — Oath oe Of-eicer — Time eor Objection.
    The officer instructed by the court to summon talesmen was not sworn as required by statute, and after the talesmen were put in the box, and .before passing on them, defendant’s counsel, on inquiry, was informed that he had not been sworn, and raised no objection then nor until after the jury had been selected. It appeared that there was no objection that :any juror was not a qualified juror, or that .the officer had acted improperly in summoning .them. Code Cr. Proc. 1911, art. 22, provides that defendant may waive any right secured to him by law, except the right to trial by jury in felony cases, held, that the time for such objection was when the jurors were summoned .and offered, and hence that the objection was made too late.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 348, 359, 367, 380; Dec. Dig. § 82.]
    4. Husband and Wiee (§ 313) — Abandonment Aeter Seduction and Marriage-Evidence.
    In a prosecution for abandonment after •seduction and marriage, evidence that the prosecuting witness had given birth to a child was .admissible.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    .5. Husband and Wife (§ 313) — Abandonment — Evidence—Corroboration.
    In such prosecution it is not necessary that the prosecuting witness be corroborated both as to the act of intercourse and the promise of marriage, although the fact that defendant had married her after prosecution against him had been begun for seduction, and to secure a dismissal of that case, would be a circumstance tending strongly to corroborate on both issues; it being a virtual admission of those facts.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. % 313.]
    >6. Criminal Law (§ 789) — Instructions — Reasonable Doubt.
    A charge that defendant is presumed to •be innocent until his guilt is established by • competent evidence beyond a reasonable doubt, that the burden of proving guilt is on the state all through the trial, and never shifts to the defendant, and that, in case the jury have a reasonable doubt as to defendant’s guilt they should acquit, sufficiently presents the question of reasonable doubt, without applying it to each paragraph of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904^-1922, 1960, 1967; Dec. Dig. § 789.]
    7. Criminal Law (§ 1086) — Appeal—Record — Contents — Motion for Continuance. •
    Where the motion for continuance is not in the record, the ruling thereon cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    8. Criminal Law (§ 1090) — Appeal—Necessity of Exception.
    Matters complained of in the motion for new trial in respect to the introduction of evidence which, if objected to at the time, was not preserved by bill of exception were not so presented as to be reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    9. Criminal Law (§ 826) — Trial—Request for 'Charge — Time.
    A request for a charge not made until after the court had read his charge to the jury came too late, and there was no error in refusing it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dee. Dig. § 826.]
    10. Husband and Wife (§' 305 )— Abandonment after Seduction and Marriage —Elements of Offense.
    The statute defining the offense of abandonment after seduction and marriage authorizes the abandonment of the woman by the man only for such acts of intercourse committed after marriage by her as would entitle him to a divorce; the law condones his past offense if he marries and lives with and supports her, and it also requires of him to condone all her acts prior to the marriage, and if, after he had seduced her, she, between that time and the time he married her, again fell, it would not justify him in abandoning her, as, having been guilty of the first wrong, he must bear its consequences. .
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1103; Dec. Dig. § 305.]
    11. Husband and Wife (§ 313) — Abandonment — Appeal—Verdict.
    In a prosecution for abandonment after seduction and marriage, where defendant’s testimony to show that prosecutrix was not chaste when he was alleged to have had his first intercourse with her was to the effect that she in her own home, in the presence of her visitors, a young lady and a young man, openly and flagrantly engaged in an act of intercourse with defendant’s brother, who never told defendant when they were trying to send him to the penitentiary, yet told him immediately after his marriage, was so unreasonable and contrary to all human experience that a conviction would not be disturbed.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Finis James was convicted of abandonment after seduction and marriage, and he appeals.
    Affirmed.

      Sturgeon & Beauchamp, of Paris, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of abandonment after seduction and marriage.

In the first two bills of exception it is shown that appellant challenged two jurors for cause, when they answered that they were “prejudiced against the crime of seduction.” The bills further show that the jurors did not know appellant, and had no prejudice against him; had no opinion in the case; knew nothing about the case and nothing about appellant. The fact that they had antipathy to the crime or offense of seduction is not surprising. Nine-tenths or more of the citizenship of Texas would answer the question in the same way, and, if this disqualified them from jury service, then only libertines would be qualified jurors in that character of case, and even some of them would answer that they did not believe it right to debauch a girl under a promise of marriage. It is further shown in these bills that these two jurors also answered that, one witness being a man and another witness a woman, they would give more credence to the testimony of the woman than they would to the man. This is a common failing of mankind. However, it is not necessary to discuss this question, as neither of these men served on the jury, and it is not shown that any objectionable juror was forced on appellant by reason of his being required to peremptorily challenge these men. Grissom v. State, 8 Tex. App. 386; Wilson v. State, 32 Tex. Cr. R. 22, 22 S. W. 39; Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Burrell v. State, 18 Tex. 713.

It appears that only 27 jurors were on the list furnished appellant; that being all the men in the jury box. Appellant demanded a full panel of 32 names before passing on the lists. The court committed no error in overruling the motion. Article 683, Code of Criminal Procedure; Burfey v. State, 3 Tex. App. 519; Bratt v. State, 41 S. W. 624.

It appears that, when the officer waiting on the court was instructed to summon talesmen, he was instructed as to his duties, but not sworn as required by law. It further appears that, when a portion of the talesmen were put in the jury box, and before passing on them, one of defendant’s attorneys asked the officer if he had been sworn to summon jurors in the ease, and, upon being informed that he had not, he did not then raise a,ny objection, but, after the jury had been selected, he then called the court’s attention to the fact that the officer had not been sworn who summoned the jurors; but the court says that at the time no objection wás made that the jurymen, or either of them, were not qualified jurors, nor that the officer had acted improperly in the premises in'the shmmoning of the jury in any way whatsoever. The statute requires that the oath be administered, and a failure to administer it has been held to be reversible error when the objection is timely made; that is, when the jurors were summoned and offered, the defendant should then have challenged them upon the ground that the officer who summoned them had not been administered the oath as required by law. Article 22 of the Code provides that the defendant may waive any right secured to him by law, except the right of trial by jury in felony cases, and the defendant cannot sit idly by until after the jury has been selected and then for the first time offer such objection, when the record affirmatively discloses that he was aware of such fact before the final completion of the jury. Of course, if it was shown that the officer had in any way acted improperly, or the jurymen thus selected were prejudiced, or that any right of appellant had been injuriously affected, reversible error would be presented. Hurray v. State, 21 Tex. App. 466, 1 S. W. 522.

Evidence was admitted that the prosecuting witness, Mamie Lee James, had given birth to a baby, and appellant requested the court to instruct the jury that said evidence could not be considered. In the case of Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477, this contention was held adversely to appellant, and the testimony held admissible; and that case has since been followed.

Another charge requested was that the prosecuting witness must be corroborated both as to the act of intercourse and the promise of marriage. In the cases of Williams v. State, 59 Tex. Cr. R. 349, 128 S. W. 1120, and Nash v. State, 61 Tex. Cr. R. 276; 134 S. W. 709, this question is discussed at length, and held adversely to appellant. These cases have been followed in all opinions rendered since that date, if not prior thereto, and we do not deem it necessary to again discuss the matter. In this case, appellant having married the prosecutrix, after prosecution against him had been begun for seduction, to secure a dismissal of that case, this would, however, be a circumstance tending strongly to corroborate on both issues; it being a virtual admission of those facts.

The first objection to the charge is that the court does not fully set out the law as to corroboration of accomplice in his charge. The charge as given has been frequently approved by this court King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135; Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101; Hinson v. State, 53 Tex. Cr. R. 147, 109 S. W. 174; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127.

The next complaint is that the court does not apply the law of reasonable doubt. The court instructed the jury:

“The law‘ presumes the defendant to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and the burden of proving guilt is on the state throughout the trial of the case, and never shifts to the defendant, and, in ease you have a reasonable doubt as to the defendant’s guilt, you will acquit him.”

This sufficiently presented the issue, so that it' was not necessary to apply reasonable doubt to each paragraph of the charge.

There is no motion for continuance contained in the record; therefore this matter is not presented in a way we can consider it. There are a great many matters complained of in the motion for new trial as regards the introduction of testimony; but, if objected to at the time, no bills of exception were preserved, and therefore not presented in a way we can review them.

The offense of seduction is alleged to have taken place on June 5, 1912, and the prosecuting witness swears that the first act of intercourse took place on the night of the 5th of June. After the court had submitted his charge to appellant’s counsel, and after the court had read it to the jury, in addition to the special charges theretofore asked, appellant then requested the court to give the following special charge:

‘‘That if they should believe from the evidence that Mamie Lee Newman had sexual intercourse with any one after the 5th day of June, 1912, being the day alleged in the bill of indictment, which the defendant is charged with seducing the said Mamie Lee Newman, and the defendant married her as alleged in the bill of indictment in this case, not knowing of such sexual intercourse, and that he married her in good faith, believing her to be a virtuous woman, and that after marriage, if he was informed that she was guilty of such sexual intercourse, and that is the reason he abandoned her, if he did abandon her, then I instruct you that he would not be guilty of abandonment after seduction'and marriage, or, if you have a reasonable doubt about same you will acquit him.”

As this request for this charge was not made until after the court had read his charge to the jury, it came too late, and would have brought undue influence to its provisions, if it had been the law, and therefore there was no error in refusing it. But we do not think it presents a correct proposition of law, and therefore the court properly refused it, regardless of the time when it was presented to him. It is seen that it requests the court to charge the jury that if, after appellant had seduced the young lady, she had intercourse with any other person, to acquit. The statute defining the offense of abandonment after seduction and marriage authorizes the abandonment of the woman by the man only for such acts committed after marriage by her as would entitle him to a divorce. It is not contended that after marriage she has done any wrong in this regard. The law condones appellant’s past offense if he marries the injured female and lives with and supports her, and while it does this, it also requires of him to condone all the acts of his wife done prior to the marriage; and if, after he had led her astray and seduced her, if she, between that time and the time he married her, should again fail, it would not justify him in abandoning her. He, having been guilty of the first wrong, must bear its consequences.

The evidence in this case amply supports a finding that appellant had carnal intercourse with the girl under a promise of marriage, and that he married her to secure the dismissal of a case against him charging him with seducing her, and that after marriage he abandoned her; but appellant made a strenuous effect to show that she was not a chaste girl at the time he is alleged to have had the first act of intercourse with the girl. Appellant’s brother, Clark James, swears that he had intercourse with the girl prior to the time she says she had the first act with Finis James, appellant. He says that, although he was a witness in the seduction case, he had never told his brother until the day following his marriage. A Miss Ruth Woodward testifies that on that night Clark James came to see Miss Newman, the prosecutrix; that Henry Humphries came to see her; that both couples were in the same room, Miss Woodward and Humphries sitting on the bed, while the prosecutrix and Clark James were on the lounge in plain view of each, and there, while she was talking to her company, and in their presence, Clark James and Miss Newman had an act of intercourse; that she and Humph-ries were not so naughty. These occurrences are so contrary to all human experience— that a girl, in her own home, in the presence of her visitors, a young lady and a young man, would openly and flagrantly engage in such act; that the young man engaged in this act was appellant’s brother; and he never told his brother when they were trying to send him to the penitentiary, yet did tell'him immediately after his marriage — we are not surprised that the jury gave little or no credence to such testimony. Appellant earnestly insists that this raises a doubt as to appellant being guilty of seducing the girl; but it raised none in the jury’s mind, and, as we have often said, when testimony is so unreasonable, so contrary to all human experience, if the state had relied on it for a conviction, we would not permit the verdict to stand, and, although it is this time adduced in behalf of a defendant, that fact does not take its unreasonable character away from it, and we will not disturb the verdict.

The judgment is affirmed.


text:
    KNOX v. STATE.
    (No. 3147.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.)
    Assault and BatteRy (§ 96) — Aggravated Assault — Self-Defense—Instructions.
    An instruction that, if when the defendant assaulted prosecutor, it reasonably appeared to defendant that he was in danger of some serious bodily injury from an attack then being made, or about to be made on him by prosecutor, and that defendant used no greater force than was necessary to prevent such attack, he would be justifiable was erroneous as placing on defendant the burden of proving that he acted in self-defense, and as submitting to the jury whether defendant used greater force than necessary, as it appeared to them at the time of the trial, instead of as it reasonably appeared to defendant at the time of the assault.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. §'§ 142-150; Dec. Dig. § 96.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    A. H. Knox was convicted of aggravated assault, and lie appeals.
    Reversed and remanded.
    Sullivan & Hill and Luther Hoffman, all of Denton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at a fine of $450.

The only assignment we deem necessary to notice is the one complaining of the court’s charge in submitting the issue of self-defense, the court instructing the jury:

“If you find and believe from the evidence that at the time the defendant assaulted the prosecuting witness Rhine it reasonably appeared to defendant that he was in danger of some serious bodily injury from an attack then being made, or about to be made, by the witness Rhine, and that he used no greater force than was necessary to prevent such attack, he would be justifiable.”

A charge, worded as is this one, has been held to shift the burden of proof, and place on the defendant the burden- of proving that he acted in self-defense, when the rule is, he is entitled to the reasonable doubt on this issue, as well as other issues in the case.

Again, the court in his charge would have the jury pass on the' question of “greater force than necessary” as it appeared to them at the time of the trial, when- they should have been instructed to view the matter as it reasonably appeared to defendant at the time. Vinson v. State, 55 Tex. Cr. R. 493, 117 S. W. 846.

The judgment is reversed, and the cause remanded.


author: DAVIDSON, J.

text:
    CAPLES v. STATE.
    (No. 3056.)
    Court of Criminal Appeals of Texas.
    May 27, 1914.)
    1. Rape (§ 41) — Assault to Rape — Evidence — Age op Prosecutrix.
    Where, in a prosecution for assault to rape, prosecutrix testified that she was a little over 16 years of age at the time of the assault, and that she was born in April, 1897, it was error to exclude the depositions of her father and mother taken by defendant showing that she was born in April, 1895.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § -60; Dec. Dig. § 41.]
    2. Criminal Law (§ 778) — Tbial — Evidence — Instructions.
    Where, in a prosecution for assault with intent to rape, it appeared that prosecutrix left the state in company with two men, and the state claimed that this was done to prevent her testifying against accused, and that she was arrested by officers and returned t-o Texas, but defendant denied all knowledge of her flight from the state, the court should have charged, at his request, that, if such flight vvas not done at defendant’s suggestion, solicitation, or connivance, it should not be considered against him for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.]
    3. Criminal Law (§ 815*) — Evidence — Plight — Instructions.
    Where, shortly after the alleged offense, accused left the state with a view to-attending school elsewhere at his mother’s request or command, and there was evidence that at this time he had no knowledge that an indictment had been returned against him or that process had issued, the court should have charged, at his request, that, if he had no such knowledge when he left the state, the fact of his leaving could not .be considered against him at all.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    4. Criminal Law (§ 673) — Witnesses — Credibility — Instructions.
    Where witnesses for accused who were charged with having taken prosecutrix out of the state had been arrested as accessories, held to the grand jury, and then discharged, and evidence of such arrest, etc., was admitted to affect their credibility, it was- error to refuse to charge that such testimony was limited to that purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    5. Criminal Law (§ 772) — Trial—Instructions — Defenses.
    Where, in a prosecution for assault to rape, prosecutrix testified that defendant caused certain bruises on her face in such alleged assault, which defendant positively denied, and there was other evidence that prosecutrix on the occasion in question was badly intoxicated, and that after defendant had discharged her from his automobile she had fallen on the steps of her hotel, and, while endeavoring to enter a room in the hotel, had also struck her face against the door facing, it was error to refuse to charge that, if the bruises were caused by her falling on the steps, if she so fell, or in running against the door facing, if she did so, or in any other manner than by the assault and battery, or some character of force used by defendant, then such injuries could not be considered in determining defendant’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    6. Criminal Law (§ 200*) — Included Defenses — Acquittal.
    Where, in a prosecution for assault to rape, defendant was convicted of aggravated assault, such conviction operated as an acquittal of higher included offenses, so that on his conviction being set aside,' he could not be retried for any higher offense than that of -which he was convicted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    William Capíes was convicted of aggravated assault, and be appeals.
    Reversed and remanded.

      Stanton & Weeks and Hudspeth, Dale & McDonald, all of El Paso, for appellant. C. E. Lane, Asst. Atty. Gen,, for. the State.

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

   DAVIDSON, J.

Under an indictment charging, in the first count, rape, and, in the second count, assault to rape, appellant was convicted of aggravated assault.

The record is very voluminous, containing a great many facts detailed at great length both for the state and the appellant. There are numerous bills of exception raising many questions. The prosecutrix, Ellen Godsey, testified to a condition of things surrounding her life that, to say the least of it, reflected seriously upon her good name. It would serve no useful purpose to commit this testimony to the Jurisprudence of our country. It is unnecessary to take up these hills seriatim; therefore the case will be treated more from a general than a special standpoint.

Among other things, the state elicited from her that she was little over 16 years of age at the time of the occurrence involved in this prosecution. She testified that her birthday was in April, 1897. The depositions •of her father and mother, who lived at Los Angeles, Cal., were taken by the defendant, among other things, showing her age to be 18, instead of 16; in other words, that she was born in April, 1895. Upon motion of the ■state, this testimony was not permitted to go before the jury. This was error. The state having introduced the age as being little over 16 years, the defendant had a right to combat this evidence by showing that she was 2 years older than she herself testified. It is a universal rule that wherever one side puts in evidence thought necessary or having a bearing upon the case favorable to the party introducing it, the other side has the right to meet such testimony and disprove it, in order to get away from any injurious effects that might be produced upon the minds of the jury by the introduction of the original testimony. It may have been that this was •critical testimony, and doubtless was important. Appellant was a young man about grown, and the jury would doubtless look more unfavorably upon his side of the case if the proséeutrix was only 16 years of age than they would if she was a more mature woman. The prosecutrix came from California to El Paso in connection with a theatrical company, and was well versed in the ways of the world, even for a chorus girl, as she 'testified she was. The evidence shows, among other things, in this connection that she drank heavily; exhibited her person in many unbecoming and lascivious ways. A woman in this line of life would likely be regarded by the jury as less experienced at 16 than she would with the added experience of 2 years, and where the depravity shown as in this case it would be .more intensified at the age of IS than at 16.

The theory of the state was that appellant made a violent assault upon the prose-cutrix, and thereby accomplished the purpose of rape, and her testimony goes to the extent of showing that, while he did not fully accomplish his purpose so far as she knew, but that he did, in fact, penetrate her person. This was denied by appellant. His testimony was to the effect that he and prose-cutrix and some other girls who belonged to the “show company” and a gentleman friend of his had' been on a general carouse that night drinking in El Paso, then crossing the river and going to Juarez, and drinking a great deal there; and after they returned from Juarez to El Paso he and prosecutrix took a ride down the El Paso Yalley, and after reaching a certain point stopped and drank ten bottles of beer, five each; that, while this was going on they were sitting on the fender of the automobile, and that prosecutrix was very drunk, and he not in a much better condition, if any, and she placed her arm around his neck and thus drank the beer; that he fondled her person with full liberty and consent, and, after ascertaining the fact that her menstrual period was on her, he desisted. She testified that when he made the proposition to her she declined, and that this resulted in a struggle in which he struck her. Upon their return that night to town she left him and went to her room. He says at that time she had no bruises about her person or face. There is testimony also of one of the roomers at the hotel that he heard a woman whoop; that he got up and looked out .to see what was the matter; that she was drunk and fell, and also, after getting up, she undertook to get into one of the rooms, and struck her head against the door. This evidence was introduced to account for the bruises about the face. It is further in evidence that in driving down the valley prosecutrix wanted to handle the car, which was resisted by appellant on account of her drunken condition; that she finally got hold of the steering wheel; that she was handling it indiscreetly; that he was afraid the car would be ditched or turned over, and he pushed her away. The court submitted the theory of pushing the girl away under the circumstances as not being sufficient to justify a conviction for aggravated assault.

He also instructed the jury, in substance, if he did not perform the acts testi-tified by prosecutrix, it would not be rápe. Among other things, in this connection, it is shown that the prosecutrix left the state, and went to Deming, N. M., in company with two men. The state’s theory was that this was done to get rid of her as a witness in the case against appellant. Quite a lot of evidence was introduced showing the fact that she went to Deming, N. M., and was there arrested by the officers and returned to El Paso. The court did not charge the jury with reference to this matter. Appellant asked a special charge to withdraw it from the consideration of the jury, if they should find it was done without the consent, procurement or suggestion of appellant. The court refused to withdraw it from the consideration of the jury, or to instruct the jury not to consider it unless they should find that appellant was ' instrumental in having her carried out of the state. We are of the opinion that, as presented by the record, it is more than doubtful if testimony was admissible, but if upon another trial the facts should be sufficient to show that probably it was done at his suggestion, then the charge should be submitted to the jury that, if he did not induce her to leave the state, and it was not done by his connivance or instigation, then it should not be considered against him. He denies any connection with this matter. In the introduction of this testimony with reference to the flight of the girl from the state, it would not be evidence against the defendant unless the state could in some way show he was instrumental in, or connived at, her flight, or instigated her being carried out of the state. This character of testimony was evidently damaging, and, as it was most strenuously denied he had anything to do with it, and, in fact, was absent from the state when the matter occurred, the court should either have excluded the testimony altogether, or, if he thought there was enough evidence to probably show he was connected with it, then he should have instructed the jury that, before they could consider it against him, they must find that he procured her flight, or in some way instigated it. The special charges aslred by appellant along this line were improperly and incorrectly refused.

The defendant left the state and went to Las Cruces, N. M., with a view of going from there to St. Louis or some point to attend school, and this was done at the reguest of his mother, perhaps at her command. It is also in evidence that appellant was. not aware at the time he left Texas and when in New Mexico that an indictment had been returned against him, or there was any process against him. The court charged the jury in this wise in this connection:

“You are instructed that, if you should find and believe from the evidence that the defendant left his home in El Paso, Tex., and went away out of the jurisdiction of this court at the suggestion of his mother, and in compliance with her request, for the purpose of going to school, and not for the purpose of avoiding process of this court and his arrest, then such evidence cannot be considered by you as any evidence tending to show his guilt.”

The appellant asked this instruction:

“You are instructed that if you should find and believe from the evidence in this case that the defendant, just shortly after the alleged offense, left his home in El Paso, Tex., and went away, but that at the time he left that he did not know that the grand jury had returned an indictment against him and that a warrant had been issued for his arrest, but had reason to believe, and did believe, that no such indictment had been returned, and that he went away at the suggestion of his mother, and in compliance with her request, for the purpose of going to school, and not for the purpose of avoiding process of the court and his arrest, then, such evidence cannot be, and will not be considered by you as any evidence tending to show his guilt.”

The court in a way submitted, this question, but nbt as fully as it should have been, and the charge upon another trial should go further and tell the jury that it should not only not be considered as evidence of his guilt, but should not be considered against him at all.

There was evidence introduced before the jury that Dave Marshall and Harry Davis had been arrested as accessories to appellant in taking the girl out of Texas into New Mexico. It seems they had an examining trial, and were held for the action of the grand jury. The grand jury failed to indict, and they were discharged. All this evidence went before the jury for the purpose of impairing their credit as witnesses. They were important witnesses, especially Davis. The court did not limit the effect of this testimony to the credibility of the witnesses, and, in fact, gave no charge in reference to the matter. Appellant requested a special instruction, which was refused by the court. This charge is as follows:

“You are further instructed that the evidence before you in reference to the prosecution of the witnesses Dave Marshall and Harry Davis was introduced before you, and only to be considered by you, for the purpose of affecting their credibility as witnesses, and for no other purpose, and the court therefore charges you that you will not consider the said evidence for any other purpose in said cause.”

This was refused, and erroneously so.

The court submitted generally the issue of aggravated assault, but did not instruct the jury with reference to the contention of appellant that he did not strike or bruise the prosecutrix, as testified by her, but that she obtained her bruises and hurts in a hotel after they returned from their ride. To meet this phase of the case appellant asked a special instruction, as follows:

“You are further instructed that, if you find from the evidence that the face of the said Ellen Godsey, or any portion thereof, was bruised, or in some manner injured, and that such bruises and injuries, if any, were caused by the said Ellen Godsey falling upon the steps of the Hol-lenbeck Hotel, if you believe that she did so fall, or if you find from the evidence that the said injuries, if any, were caused by the said Ellen Godsey running against the door facing at room No. 5, in the said Hollenbeck Hotel, if you believe that she did run against the door facing of said room, or if you find from the evidence that the said Ellen Godsey received such injuries, if any, in any other manner than by an assault and battery or some character of force used by the defendant, William Capíes, then and in that event the court charges you that you cannot consider the said injuries, if any, in determining whether the said defendant is guilty of any offense submitted to you in the general charge of the court.”

This was refused. This charge should have been given. There was evidence introduced covering these identical matters, and the jury should have been instructed that, if she received these injuries on the face, which she says was caused by appellant striking her, from the fall in the hotel, or from running against the door, as shown by some of the testimony, then appellant would not be guilty of an assault from that viewpoint. It may be stated in a general way, in this connection, that it would seem from this record that the evidence upon which this conviction was had was the bruises on prosecu-trix’s face. The jury discredited her testimony to the effect that appellant had carnal intercourse with her or penetrated her person; for they acquitted him óf rape and assault to rape, and only found him guilty of aggravated assault. The bruises on the face of the prosecutrix was the most important and critical testimony introduced to show assault and battery. If he placed the bruises upon her face, .it was very damaging testimony against appellant. If she did not have those bruises upon her face at the time she separated from him and went into the hotel, and she received them from a fall or by running against a door, appellant would not be responsible, for he was not present, but had driven away in his car. This charge was directed to one of the most critical issues in the case, and should have been given, and, in failing to do so, the court committed material error.

There are other questions 'in the case of more or less moment, but we deem it unnecessary to discuss them, inasmuch as what we have said will determine how the case should be tried, if it should be tried again. The issues of rape and assault to rape pass out of the case by the verdict of the jury. Upon another trial the state now can only rely upon the fact of an assault upon the girl, if it, in fact, occurred, and the testimony and issues will 'be directed to that issue alone.

For the errors indicated, the judgment is reversed, and the cause remanded.