author: GAINES,

text:
    MANN v. STATE.
    (No. 4706.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Criminal Law <§=>855(8) — Misconduct of Jury— Conversation with Others — Statutes.
    Code Cr. Pros. 1911, art. 748, providing that no person shall be permitted to converse with a juror who has been impaneled except in the presence of and by permission of the court or except in misdemeanor cases where the jury has been permitted to separate, and in no case shall any person be permitted to Converse with the juror about the case on trial, being intended to carry into effect the mandate of Const, art. 1, § 15, to preserve the right of trial by jury inviolate and to maintain its purity and efficiency, must be construed to he mandatory and to mean that only in misdemeanor cases when the jury has been permitted to separate may they be permitted to converse at all but not about the case, and that in a felony case no juror shall converse with any other person about anything except in the presence of or by permission of the court.
    2. Criminal Law <§=>957(6) — Misconduct of xJury — Burden op Showing Prejudice.
    Where it is claimed in a criminal trial that the jury has violated Code Or. Proe. 1911, art. 748, forbidding conversation by a juror with other persons, the burden is on the state to show by testimony other than that of the jurors that no injury has occurred.
    3. Criminal Law <§=>1169(11) — Prejudicial Error — Evidence—Eormer Conviction.
    In a prosecution for violating the local option law, evidence that defendant had been convicted before under the same statute in another case held prejudicial in view of testimony by the jury that they had taken it into consideration ; Code Cr. Proc. 1911, art. 843, providing that former convictions shall be regarded as no presumption of guilt.
    4. Criminal Law <§=>369(6) — Evidence—Former Conviction.
    Testimony that one accused of an offense has been convicted of a similar offense before is admissible only when defendant is a witness and when the conviction is both one importing moral turpitude and so recent it is presumed to still affect his character.
    Prendergast, J., dissenting.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    W. A. Mann was convicted of selling intoxicating liquor in local option territory, and he appeals.
    Reversed and remanded.
    J. E. Clarke, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   GAINES,

Special Judge.

Appellant was convicted of pursuing the business of selling intoxicating liquor in local option territory, and his punishment assessed at four years in the penitentiary.

The indictment charges some 40 sales, and there is testimony of most, if not all, the sales charged. The testimony shows, however, that all these sales, except two or three, were made either to Carroll or Sealey or to some member of the Pryor family, and the defendant denies all sales except two. Carroll was an amateur detective sent out from Dallas under employment by the county attorney, and he associated Sealey, who was loitering about the town without employment, and was paid only his expenses. The Pryors were related by marriage to Sealey. It appears from the testimony that Carroll and Sealey induced appellant to think they were pals of his, and thus they induced him to obtain and sell them intoxicating liquors. It also appears that of the whisky purchased Carroll and Sealey drink more than they turned over to the county attorney.

Appellant has properly presented for review two grounds for reversal based on misconduct of the jury. One of the jurors conversed with another person after the jury had been impaneled and out of the presence of the court. The testimony on this issue shows that the juror Ben F. Smith, while the jury were walking about the town, conversed with his brother, A. L. Smith, in the street near the home of the latter. The testimony of the juror and of the deputy sheriff in charge is to the effect that this conversation did not relate to the case. A. L. Smith was shown to be out of the state and was not a witness as to the conversation.

The Bill of ‘ Rights to the Constitution (section 15) provides that:

“The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

Article 748 of the Code of Criminal Procedure of 1911 provides that:

“No person shall be permitted to be with a jury while they are deliberating upon a case, nor shall any person be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate ; and in no case shall any person be permitted to converse with the juror about the case on trial.”

This statute was intended to carry into effect the mandate of the organic law to preserve the right of trial by jury “invio.late” and to “maintain its purity and efficiency,” and it must be construed in tbe light of this intent. This statute would appear to be mandatory, both ' from its purpose and its language, and it evidently means that only in a misdemeanor case, when the jury have been permitted by the court to separate, may they converse at all with any other person, and not even then about the case; and that in a felony case no juror shall converse with any other person about anything “except in the presence and by the permission of the court.” In a felony case the statute is as much violated by a conversation not in the presence and not with the permission of the court as by a conversation about the case, and speculation as to injury or not is in a field entirely independent of the statute and would apply if no such statute existed. When once this line is crossed, there is no chart by which we may be guided. However, “drest in a little brief authority,” it is not the purpose of the writer to go further than follow the former decisions of this court. In the case of Early v. State, 51 Tex. Cr. R. 382, 103 S. W. 868, 123 Am. St. Rep. 889, this court held that in any event the burden was on the state to show that no injury occurred and that for this purpose the testimony of the jurors would not be sufficient, but that the state must produce and show by the other parties to the conversation that it was not relating to the case. This rule was followed in the Parshall Case, 62 Tex. Cr. R. 177, 138 S. W. 759, and the rule in both cases is' based on the doctrine announced in McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 496. The fact that other parties to the conversation are beyond the reach of process may be a misfortune, but it would not change the rule.

Appellant also complains of the misconduct of the jury in another respect. When appellant was a witness in his own behalf, the state elicited from him the testimony that he had been convicted in Hill county before under the same statute. Apparently this was in some other case. This testimony was properly limited in the charge to impeachment; but, during the discussion of the case in the jury room, one of the jurors remarked that he had once been convicted of a similar offense and that he ought to have a double dose this time. Article 843, Oode of Criminal Procedure of 1911, provides that:

“The effect of a new trial is to place the cause in the same position in which it was .before any trial had taken place. The former convictions shall bo regarded as no presumption of guilt, nor shall it be alluded to in the argument.”

This statute would appear to apply primarily to a conviction on which a new trial had been granted in the trial corat, but the principle of law therein contained has been applied where any former conviction of crime is involved. Horn v. State, 50 Tex. Cr. R. 404, 97 S. W. 822. Several members of the jury were called on this issue, and they testified that, upon the allusion to the former conviction by one of the jurors, another juror warned them that they could not consider the testimony for this purpose and that it did not have any influence on their verdict. As already stated, notwithstanding the large number of sales testified to, all but two or three of these were to Carroll and Sealey and the Pryors who were kinsmen of Sealey. The other testimony might have been considered sufficient in itself to convict, but it alone would not have carried the force of moral turpitude a belief in all the alleged sales would have carried. The witnesses Carroll and Sealey, while they may not have been accomplices in the sense that their testimony must be corroborated, they were participants in the crime. When any person encourages and aids in the commission of an offense, whatever his motive, he is a participant in that crime, for it might never have been committed without his encouragement and participation. These are principles that would ordinarily be presumed to come within the knowledge of the average man and be properly weighed by the average juror. So that, taking all the testimony in the case, it is difficult to reach the conclusion that the jury would likely have given appellant the penalty of four years but for the fact that they gave weight to the fact that he had once been convicted for violating the same law, and we cannot escape the conclusion that this testimony was given consideration for purposes other than impeachment of the witness. Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Oas. 357. As was said by Judge Henderson in the Horn Oase above, the fact that one of the jurors used it as an argument to the others was strong evidence that it influenced the juror himself; for, if he thought it would convince others, hiinself it must already have convinced. The citizen is entitled to a trial by a fair and impartial jury, and in felony cases this means twelve fair and impartial men. If the mind of only one of them is affected by an extraneous matter, in the eyes of the law, the jury as a body is thus affected. This' testimony is only admissible at all when the defendant is a witness and the conviction is both one importing moral turpitude and so recent it is presumed to still affect his character. Its extraneous effect being always probable, it should be guarded with all possible care.

The judgment is reversed, and the cause remanded.

PRENDERGAST, J., dissents. MORROW, J., not sitting.
      ^=5>I<’or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRBNDERGAST, J.

license: Public Domain

text:
    CLAUNCH v. STATE.
    (No. 4615.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.
    Rehearing Denied June 19, 1918.)
    1. Indictment and Information <®^j!68 — Issues and Proof — Separate Counts.
    Where jury convicted under two counts for keeping a disorderly house, but imposed one penalty only, the conviction will be sustained if the evidence was sufficient as to either or both.
    2. Intoxicating Liquors @=>15 — Statutes— Constitutionality.
    Pen. Code 1911, arts. 496, 500, making a house disorderly where liquor is sold or kept for the purpose of sale, so as to require the sellei to obtain an internal revenue license, are valid. 8. Intoxicating Liquors ⅞=^213 — Indictment — Sufficiency.
    An indictment for keeping a disorderly house where liquors are sold, in violation of Pen. Code 1911, arts. 496, 500, held sufficient.
    4. Intoxicating Liquors @=226 — Evidence —Reputation.
    In prosecution under Pen. Code 1911, arts. 496, 500, for keeping a disorderly house, a witness can testify to the general reputation of the house kept by the accused.
    5. Criminal Law @=>429(1) — Evidence—Internal Revenue License — Certified Copy.
    In prosecution for keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, a certified copy of the record of the internal revenue license to accused as a retail malt liquor dealer which corresponded, as testified to by one witness, with a revenue license posted in appellant’s place of business, was properly admitted in evidence.
    6. Intoxicating Liquors @=>233(3) — Offenses — Evidence.
    Since keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, is a continuing offense, witnesses may testify that they had seen posted in defendant’s place of business an internal revenue license about the time sales of liquor were made.
    7. Intoxicating Liquors @=>233(2) — Evidence.
    In a prosecution for keeping a disorderly house in violation of Pen. Code 1911, arts. 496, 500, the state was properly permitted to introduce in evidence labels on bottles of liquor purchased to the effect that the contents contained less than 2 per cent, alcohol, and giving the name of the brewer.
    Appeal from Eisher County Court; M. A. Hopson, Judge.
    W. W. Clauneh was convicted of keeping a disorderly house, and he appeals.
    Arnrmed.
    K. A. Watson, of Rotan, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRBNDERGAST, J.

Appellant was convicted of keeping a disorderly house under certain clauses of articles 496 and 500, P. C.

The indictment was in several counts. Only two were submitted; hence it is unnecessary to state anything about the others. One of those submitted was under this part of article 496, viz.:

“A ‘disorderly house’ is * * * any house located in any county * * * where the sale of intoxicating liquor has been prohibited under the laws of this state, in which such nonintoxicating malt liquor is sold or kept for the purpose of sale, as requires the seller thereof to obtain internal revenue license under the laws of the United States as a retail malt liquor dealer.”

And article 500, which is;

“Any person who shall directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, * * ⅜ a disorderly house, in any house, building, edifice or tenement, * * * shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the ease may be, * * * a disorderly house, * * * and on conviction shall be punished by a fine of $200.00, and by confinement in the county jail for twenty days for each day he shall keep, be concerned in keeping or knowingly permit to be kept, such * * * disorderly house.”

One count, the third, alleged:

That appellant, “on or about the 26th day of January, 1917, in the county of Eisher, state of Texas, and anterior to the presentment of this indictment, did then and thero keep and was concerned in keeping, and knowingly permitted, to be kept, a certain house, building, edifice, and tenement, situated in said county and state after an election had been held by the qualified voters of said county, on tho 4th day of November, 1902, in accordance with the law to determine' whether or not the sale of intoxicating liquor should be prohibited in said county, and said election bad resulted in favor of prohibition in said county, and the commissioners’ court of said county had duly made, passed, and entered its order declaring the result of said election, and absolutely prohibiting the sale of intoxicating liquors within said county, as required by law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law, and that the said W. W. Clauneh did then and there, in said county and state, keep and was concerned in keeping, and knowingly permitted to be kept, the said certain house, building, edifice, and tenement for the purpose and in which nonintoxicating malt liquors wore sold and kept for the purpose of sale; as required the seller thereof, to obtain internal revenue license under tho laws of the United States as a retail malt liquor dealer.”

The other, fourth, made the same allegations about the election and prohibition being put in force as the one just above copied, and that:

“On or about January 26, 1917, W. W. Clauneh was then and there the proprietor and lessee of a certain house, building, edifice, and tenement wherein said proprietor and lessee, W. W. Clauneh, had posted and caused to be posted license issued by the United States of America authorizing said proprietor and lessee thereof to pursue the occupation and business of a retail malt liquor dealer.”

The jury convicted him under both counts, but imposed one penalty only. So that, if the evidence was sufficient as to either or both, conviction would be sustained.

This law itself and others like it in principle have so often been held valid and constitutional that we deem it unnecessary to discuss it, but merely cite some of the authorities. Johnson v. Elliott, 168 S. W. 968; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Bumbaugh v. State, 55 Tex. Cr. R. 227, 116 S. W. 1152; Tachini v. State, 59 Tex. Cr. R. 55, 126 S. W. 1139; Sweeney v. State, 59 Tex. Cr. R. 370, 128 S. W. 390; Todd v. State, 60 Tex. Cr. R. 199, 131 S. W. 606; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040, and a long line of decisions following that decision down to this date; Ex parte Dupree, 101 Tex. 150, 105 S. W. 493; Dupree v. State, 102 Tex. 455, 119 S. W. 301; Townsend v. State, 64 Tex. Cr. R. 350, 144 S. W. 628, Ann. Cas. 1914C, 814; Claunch v. State, 199 S. W. 483; Purity Extract & T. Co. v. Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; and a great many other authorities unnecessary to collate.

Both counts of said indictment were strictly in conformity to the statute and hoth good.

It has all the time and in many cases been held that a witness can testify that he saw hanging up in the accused’s place of business the internal revenue collector’s license as a retail malt liquor dealer, and that a witness can testify to the general reputation of such house kept by the accused. Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Johnson v. State, 69 Tex. Cr. R. 107, 153 S. W. 875; Milam v. State, 66 Tex. Cr. R. 249; 146 S. W. 185; and other cases cited by Mr. Branch in his 1 Ann. P. C. p. 612. The certified copy of the record of the internal revenue license to appellant as a retail malt liquor dealer, which corresponded, as testified to by one witness, with the said revenue license posted in appellant’s place of business, was properly admitted in evidence. 1 Branch’s Ann. P. C., p. 66; Gersteman v. State, 35 Tex. Cr. R. 318, 33 S. W. 357; Goble v. State, 42 Tex. Cr. R. 504, 60 S. W. 968; Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. 139. In the Novy Case he was charged and convicted for keeping a disorderly house. In that case this court held:

“It is well established that such an offense as is charged in this case is a continuous one, and a conviction bars all further or other prosecutions up to the time of the conviction,-unless the indictment or information carves oiit the time of the commission of the offense and the evidence, as well as the pleading, is confined to such time so carved out. Huffman v. State, 23 Tex. App. 491 [5 S. AV. 1341; Fleming v. State, 28 Tex. App. 234 [12 S. W. 605].”

See Handley v. State, 16 Tex. App. 444; Hall v. State, 32 Tex. Cr. R. 475, 24 S. W. 407.

The court therefore did not err in permitting some of the witnesses to testify that they had seen posted in appellant’s said place of business said internal revenue license about a week before this case was tried and about the same time bottles of said liquor were bought from appellant or one of his clerks. In said Novy Case it was expressly held that purchases from the appellant’s clerks or other employes were admissible, citing quite a number of decisions to that effect.

Neither did the court err in permitting the state to introduce in evidence the labels on the bottles of said liquor which had been purchased from apipellant to the effect that it contained “12 ounces and less than 2 per cent, alcohol; has no superior; sparkles with life. Teddy beer, the acme of perfection. Made by an old German process from choice-est materials. Teddy beer, a fermented beverage”— and giving the name of the Consumers’ Brewing Company, New Orleans, as the distributors.

The court gave a correct charge under the law and correctly refused the special charges requested by appellant.

The judgment is affirmed.
      <i£s>For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P.

text:
    JONES v. STATE.
    (No. 5089.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.)
    Oeiminai, Law <§=^577— Continuance — 1Time Allowed for Preparing Defense.
    In rape case, held that it was error not to allow attorneys appointed by the state more than two days to prepare their defense.
    Appeal from District Court, Bexar County; AV. S. Anderson, Judge.
    Thomas Jones was convicted of rape and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P.

J. This conviction was for rape on a girl under fifteen years of age. The punishment assessed was for 99 years in the penitentiary.

AVhen the case was called for trial the attorneys who represented the defendant were called from their office by the court and appointed to represent appellant in the trial. They knew nothing of the case, and asked time to consider and look into it, to the end that they might give the defendant the benefit of their service under the law, and to the end that he might have a fair trial as they thought the law and the facts justified. To this end they moved the court to postpone the case a sufficient time for them to get witnesses from AVichita Falls, from which place the defendant and prosecutrix had removed to San Antonio. The court informed them that he would allow them two days in which to confer with, and if they thought proper to secure the attendance of the witnesses from AYichita Falls. They contended, and correctly so we think, that this was not sufficient time, and were put to trial. AVe think this was error, especially in the light of later developments.

Appellant’s wife at the time of the trial was in the insane asylum for temporary cause. Appellant’s contention was that he had not had intercourse with his daughter, and that her prosecution of him was for ulterior purposes and reasons and her testimony false. On the motion for new trial there were attached affidavits going to sustain Ms theory of the ease. His wife had become restored to a sane condition in the meantime, and filed an affidavit, -attached to the motion for new trial, which tended strongly to disprove the state’s case. The doctor who testified in behalf of the state as to the examination of the girl also filed an affidavit attached to the motion for new trial, which would tend to show that the previous condition of the girl’s private parts could have been produced from other causes than sexual intercourse. He testified cautiously that the girl’s private parts showed one of two things, that she had been having sexual intercourse, or had been committing masturbation. There was nothing from his examination showing recent acts of copulation. The wife would have testified upon the trial, as shown by the affidavit, that when they were living in Arkansas and the girl was about five or six years of age, she had a case of gonorrhea, and recovered from this under the treatment of a physician. The physician who testified on the trial also files an affidavit in connection with this statement, to the effect that if the wife’s statements were true it might and could account for the condition of the girl’s private parts’at the time he made the examination. There is testimony also from the witnesses who were absent at Wichita Falls showing the girl was in the habit of going out at night with other' parties, consisting among others, of young men, and that she was self-willed and disobedient, and that she had threatened to get even with her father because of his attempted control of her conduct. There is also testimony from the witnesses at Wichita Falls, alleged to be newly discovered, that during the last year or two of prosecutrix’s life she had been pretty headstrong and self-willed and had gotten to be “a little rapid.” It could have been shown also that while living in , San Antonio, when appellant left the house where he and prosecutrix were boarding to go to work, he would instruct the girl to fix his room and his bed, and that she did not and would not do so, and this brought friction between them; that he would reprimand her for such conduct.

Take the case as it is, we are of opinion that appellant should have had ample time to prepare for his trial under as serious charge as tMs, and that under the facts shown on the motion for new trial he should have been awarded a new trial. This charge is a very serious one, and the punishment allotted was severe. These matters rendered it we think the more necessary that appellant should have had ample time to prepare the case and get the witnesses, and the facts shown on the motion for new trial were of such a nature to require the granting of said motion.

The judgment is reversed, and the cause remanded.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    AMONETT v. STATE.
    (No. 4793.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Intoxicating Liquors <⅞=»239(2) — Business or Seulingi Intoxicating Liquors — Instruction.
    In a prosecution for pursuing the business of selling intoxicating liquors in local option territory, where there was evidence that defendant was the agent of a certain party, one of the alleged purchasers, and that he bought whisky for that party from, another party, and did not himself sell it to such party, the refusal of defendant’s requested instruction that, if the sale was not made by himself to such purchaser,1 but that he bought from another party as the agent of such purchaser, and delivered the whisky under such circumstances, it would not be considered as evidence of his guilt, was error.
    2. Intoxicating Liquors <¾=»236(8) — Selling Intoxicating Liquors — Offense.
    In such prosecution evidence that defendant bought the whisky as the agent of another and delivered it to him and did not sell it to such person could not form basis of conviction.
    3. Intoxicating Liquors <S=^>223(6) — Sale oe Liquor — Oxeense.
    In a prosecution for pursuing the business of selling intoxicating- liquors in local option territory, proof of a sale to a purchaser not named in the indictment could not constitute the basis of a conviction, though admissible as tending to show that defendant was pursuing such business.
    4. Intoxicating Liquors <s=^235 — Pursuing Business of Selling! Liquor — Evidence-Former Acquittal.
    In a prosecution for pursuing the 'business of selling intoxicating- liquors in local option territory, where there was evidence of a sale to one of the alleged purchasers, evidence that defendant had been acquitted of the charge of such sale was admissible.
    5. Intoxicating Liquors <§=236(8) — Pursuing Business of Selling Liquor — Offense.
    In such prosecution it is only an illegal sale that forms the basis of a conviction, and legal sales, or a sale for which defendant had been tried and convicted would constitute no violation of the law.
    6. Witnesses <3=>345(2) — Cross-Examination — Impeachment — Conviction of Offense.
    Where one of the alleged purchasers testified for the state, the refusal of cross-examination to prove that he had been arrested for violations of the prohibition laws and imprisoned was erroneous, especially where the evidence was conflicting and the case was close.
    Appeal from District Court, Grayson County; C. T. Freeman, Judge.
    Jack Amonett was convicted of pursuing the business of selling intoxicating liquors in local option territory, and he appeals.
    Reversed and remanded.
    Cox & Cox and B. F. Gafford, all of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged by indictment with pursuing the business and following the occupation of selling intoxicating liquors in local option territory.

The names of the alleged purchasers are set out in the indictment and the dates of the transactions. Evidence is also in the record to the effect that appellant was the agent of Hooker, one of the alleged purchasers, and that he bought whisky for Hooker from another party, and did not himself sell it to Hooker. The court instructed the jury with reference to this matter, but not clearly, as contemplated by the law, and exception was taken by appellant. He requested a special instruction to the effect that, if the sale was not made by himself to Hooker, but that he bought from another party as agent of Hooker and delivered the whisky under such circumstances to Hooker, this could not be considered by the jury as evidence of guilt of the defendant from that aspect of the indictment. We think this charge should have been given, and ⅞» court’s charge does not sufficiently present this matter. If appellant bought the whisky as the agent of Hooker and delivered it to him, it would not be a sale by appellant to Hooker, and* could not form the basis of conviction either for a violation of the local option law or as evidence of guilt for illegally pursuing the business of selling intoxicants in such prohibitory territory. If appellant sold the intoxicants to Hooker, this would be unlawful, but if he bought it as agent for Hooker and delivered it to him, this would not be unlawful, and the jury should have been specifically so charged. See Creed v. State, 71 Tex. Cr. R. 512, 160 S. W. 468; also Fisher v. State, 197 S. W. 189; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583.

There was also evidence introduced of sales made by appellant to Balboa Rogers. Rogers was not named in the indictment as one of the purchasers from appellant. While this testimony was admissible as tending to show that appellant was pursuing the business, in connection with other matters which would tend to show his following the business, yet, not having alleged the sales to Rogers in the indictment, it should not constitute the basis of conviction. The court was asked to so instruct the jury, but this instruction was refused. This was error. Fisher v. State, 197 S. W. 189; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583.

There was also evidence introduced of a sale to one of the alleged purchasers. In this connection it was sought to be slyjwn, to meet this sale, that appellant had been tried and acquitted for this alleged sale on the trial of a local option case. We are of opinion that the court should have permitted this evidence of acquittal, and we are further of opinion that, where a party has been acquit- ■ ted for violating the local option law, and that sale is relied upon under an indictment charging the accused with pursuing the business, this acquittal could and ought to be shown. In a violation of the prohibition law it is only an illegal sale that forms the basis of conviction. Had appellant been tried for that sale or had he been convicted for such sale, we would have a different proposition. The law only justifies a conviction for illegally selling either under a local option charge or under one for pursuing the business. Legal sales would not constitute a violation of the law in either event. If appellant' could show that he had been acquitted in a local option trial of one of the sales relied upon by the state in this case, then such sale would not form the basis of conviction, and the evidence should be admitted to show the acquittal, and the jury instructed not to regard that as a basis for conviction. That would not be an illegal sale, and would not form the basis of unlawfully following the business of selling intoxicating liquors.

The witness Hazelwood, one of the alleged purchasers, was used by the state, and upon cross-examination appellant offered to prove by him that he had been arrested in Collin and Grayson counties for various and sundry violations of the prohibition laws and incarcerated in jail. Upon objections by the state this evidence was excluded, and we think erroneously. Hazelwood was a witness for the state, and was subject to impeachment, and this is one of the modes by which a witness may be impeached. This rule applies in felonies. This case is rather on close lines for conviction. The witnesses for the state were impeached by the defendant, and no testimony was offered to sustain their reputation. The evidence is sharply in conflict with reference to the sales, and under such circumstances any evidence that threw light upon the case should have been admitted, even to the impeachment of the witnesses.

For the errors indicated, the judgment will be reversed, and the cause remanded.
      <S=^For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: MORROW, J.

text:
    POWELL v. STATE.
    (No. 4883.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    Forgery <§==»29(4) — Sufficiency of Indictment-Capacity of Defendant — Tax Collector.
    Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1402-1498, provides that the tax collector shall be charged with the aggregate amount of taxes shown due on the tax rolls delivered to him, which obligation shall be discharged by his commissions and payment of money received from the proper authorities and by cx'editing his account with the amount of taxes shown delinquent by his tax report approved by the commissioners’ court. An indictment for forgery alleged that the named defendant, after a delinquent tax report certified by the commissioners’ court and signed by the county judge and commissioners and attested by the clerk, entitling “P., tax collector,” to certain credits, added certain lands upon which taxes were reported delinquent, but which were not in fact delinquent, which additions had the effect to create a pecuniary obligation against the state and in favor of 'defendant. Helé that, as the indictment did not directly allege that defendant was a tax collector, it was insufficient.
    Appeal from District Court, Voung County; Wm. N. Bonner, Judge.
    J. D. Powell was conyicted of forgery, and he appeals.
    Reversed, and prosecution ordered dismissed.
    B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for forgery.

The indictment charges that appellant altered a genuine instrument in writing which had theretofore been made by J. D. Powell, and which before being altered had been duly approved by the commissioners’ court of Archer county, which approval had been attested by the clerk of said county. In the indictment is set out what purports to be a delinquent tax report of J. D. Powell showing taxes delinquent in Archer county for the year 1906 and previous years. Attached to the instrument is a certificate of the commissioners’ court of Archer county, signed by the county judge and commissioners, and attested by the clerk, certifying that they had examined “the within report of lands and town lots assessed on the tax rolls of Archer county, for the year 1906, which have been sold to the state or reported delinquent for taxes of former years and not redeemed, and are also delinquent for the taxes of 1906, and find the same correct and that J. D. Powell, tax collector, is entitled to credit for the taxes as shown thereon, as follows, to wit.’’ Then follows the items aggregating $381.01. A number of pages follow in the indictment under the head “delinquent tax report” which are alleged to have been in the instrument at the time the examination and certificate mentioned was made, and following these are a number of items similarly entered which are charged in the indictment to have been added to the delinquent tax report after it was certified, and it is charged that:

“Said additions to said report and instrument then and there so made by the said J. D. Powell did then and there have the effect to create a pecuniary obligation against the state of Texas and in favor of said J. D. Powell, in .the amount of the taxes shown by said alterations and additions as due and owing to the state of Texas, and that thereby the said J. D. .Powell would receive, and did receive, a credit upon his account due by him to the state of Texas in the amount of the taxes he so reported as delinquent.”

Then follows the entire instrument as it appeared after the alterations were made, and,'in connection with the instrument thus set out, the items set out in the certificate aggregate a larger sum than that stated above. It is not alleged, however, that the certificate was changed, but the forgery, according to the allegations, consisted in adding to the telinquent tax list lands and lots upon which the taxes were reported delinquent and which were not delinquent, and which were added after the report was examined and certified by the commissioners’ court.

Various objections are urged against the indictment, none of which we regard as serious except that in which it is charged that, in the absence of a direct allegation that the appellant was tax collector of Archer county, it does not appear that the instrument would create a pecuniary obligation to the state. The law requires that the tax collector shall be charged with the aggregate amount of taxes shown due on the tax rolls which are delivered to him, and that this obligation is discharged by his commissions and payments of money received from the proper authorities and crediting Ms account with the amount of the taxes shown delinquent by his tax report approved by the commissioners’ court. Vernon’s Sayles’ Civ. Stats, tit. 29.

It thus appears that the efficacy of the alteration charged to have been made in the document set out in the indictment to affect the pecuniary relation of appellant and the state would depend upon his relations to the state; that is, whether he was tax collector or not. If he was tax collector, he was entitled to such credit for the delinquent taxes as shown by his report, and fraudulent alterations of the report by making additions thereto increasing the amount of delinquencies would diminish Ms obligation to the state, in that under the law he was entitled to credit on the amounts charged against him as tax collector with the aggregate items of delinquent taxes. J. D. Powell is described in the certificate as tax collector. It is contended, and we .believe correctly, that this is descriptive of the instrument and not equivalent to a direct allegation that the appellant in this case was in fact the tax collector. We have not the benefit of a brief from either the suite or the appellant. We find, however, the case of Beasley v. State, 39 Tex. Cr. R. 688, 47 S. W. 991, was one in which the instrument charged to have been forged was a bill of lading purporting to have been issued by the International & Great Northern Railway Company, a corporation, and signed International & Great Northern Railway -Company by J. O.'Pray, agent. On the introduction of evidence it was held that, in the absence of a direct averment that J. C. Pray was the agent of the International & Great Northern Railway Company, proof of that fact could not be rec&ved, and that in the absence of such pi-oof no conviction could be had for the reason that the bill of lading charged to have been forged, if true, could only have created a pecuniary obligation against the railroad mentioned in the event it was issued by the railroad company acting through its agent, and that the mere setting out of the instrument as above indicated was an averment describing the instrument but not one supplying the essential averment that J. C. Pray was the agent. The court states:

“We think the pleader should, by an innuendo, have explained this abbreviation. But this is. not the main point. The indictment further-goes on, and alleges that the false instrument] was made by said Beasley in such manner and in such way that, if the same were true, it would have created a pecuniary obligation on the part of said railroad company, etc. No doubt the pleader felt the necessity of showing the connection between said Pray and the railroad company ; otherwise, he would not have used this language. But this is not tantamount to the allegation of agency for the said railroad company on the part of the said J. C. Pray. This, in our opinion, should have been distinctly alleged, and not left to inference.”

So in this case it appears inferentially that the appellant was the tax collector of Archer county; but, as above stated, there being no direct averment of that fact, the allegation is not sufficient. The tax report could avail none hut the tax collector. Appellant might have forged a tax collector’s report, but unless he was tax collector it would have purported to have created no financial obligation between him and the state, for such relation could grow only out of the fact that under the law the tax collector and the state would have certain rights growing out of the tax collector’s report. In the case of Beasley v. State, supra, it is stated:

“It is a rule of almost universal application, and is a requirement under our statute, that everything that is necessary to be proved must be averred.”

It was necessary to prove that appellant was tax collector, and failing to aver that fact was, we think, fatal to the indictment. See Lynch v. State, 41 Tex. Cr. R. 211, 53 S. W. 603.

The judgment of the lower court is reversed, and the prosecution ordered dismissed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    BOWEN et al. v. EL PASO VALLEY WATER USERS’ ASS’N.
    (No. 877.)
    (Court of Civil Appeals of Texas. El Paso.
    May 23, 1918.
    Rehearing Denied June 13, 1918.)
    Appeal and Eeeoe <®=>781(2) — Right to Remedy — Showing on Appeal.
    Where a complainant sought injunction to restrain interference with the construction of a canal, and defendant sought injunction to restrain construction of the canal, but admitted on appeal that the canal had been constructed, the appeal would be dismissed; the only matter left for litigation being the question of costs.
    Appeal from District Court, El Paso. County; P. R. Price, Judge.
    Quit by the El Paso Valley Water Users’ Association against Mrs. D. L. Bowen and husband. Erom the decree rendered, defendants appeal.
    Dismissed.
    C. W. Oroom and R. B. Redic, both of El Paso, for appellants. Burges & Burges, of El Paso, for appellee.
   HARPER, C. J.

The El Paso Valley Water. Users’ Association brought this suit to enjoin Mrs. L. L. Bowen and W. H. Bowen from interfering with, -or obstructing, the work of constructing an irrigation, canal across the lands of defendants. Writ was issued upon filing of bond. The defendants then filed a motion to set aside the order, and asked by cross-action for writ enjoining the irrigation company from constructing the proposed canal. Upon interlocutory hearing, the court continued in effect the original in-junctive order, and denied the defendants’ prayer in their cross-action, from which it comes to us for review. .

No supersedeas bond was filed, and no order was entered by the trial court suspending the injunctive order as to appellants. Appellants admit, upon submission, that the canal, the construction of which across their land was sought by them to be enjoined, since this appeal, has been constructed. The case therefore falls within that class of cases in which there is nothing left to litigate, except the matter of costs. The appeal, therefore, is dismissed at appellants’ costs. Electric Park Co. v. San Antonio Baseball Ass’n, 155 S. W. 1189; Rogers v. Ivy, 191 S. W. 728.

Dismissed.

WALTHALL, J., did not sit being absent on committee of judges assisting the Supreme Court.


author: DANE, J.

text:
    GULF, C. & S. F. RY. CO. v. BLUITT.
    (No. 7594.)
    (Court of Civil Appeals of Texas. Galveston.
    May 31, 1918.
    Rehearing Denied June 20, 1918.)
    1. Highways <§=4 — Descriptive Rights — Raileoad Right oe Way.
    An easement for a public road may be acquired on a portion of a railroad right of way by prescription.
    2. Highways @=17 — Presceiptive Rights— . Raileoad Right oe Way — Evidence.
    Evidence held to show the acquisition of prescriptive right of way for public road in railroad right of way.
    3. Appeal and Eeeoe 3⅛854(2) — Review — Gkounds oe Decision.
    Where plaintiff sought to establish public road on portion of railroad right of way on theory of prescription, and to establish a further right in himself by claiming a way of necessity, the court on appeal will not revise a judgment in his favor, though it erroneously found that he was entitled to a way of necessity, where the public right of way by prescription was established.
    Appeal from District Court, Burleson County ; R. J. Alexander, Judge.
    Action by S. B. Bluitt against the/ Gulf, Colorado & Santa Eé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, C'avin & Mills, of Galveston, Bowers & Bowers, of Caldwell, and Jno. G. Gregg, of Galveston, for appellant. W. M. Hilliard and A. B. Gerland, both of Caldwell, for ap-pellee.
   DANE, J.

This suit was filed by the appel-lee, Bluitt, against the appellant, Gulf,. Colorado & Santa Eé Railway Company, alleging that lie was the owner of a tract of land on which was located his home; that his tract of land was bounded on its east side by the right of way of the appellant; that northeast and southwest of his land, although some distance away from his land, were two public roads, one the Caldwell-Brenham road and the other the Oaldwell-Deahville road; that for 20 -years or longer the right of way of the appellant company had been used by the public in general in going from one public road to the other, and by the ap-pellee in going from his home to these public roads, so that he might reach the business part of the town of Caldwell. The appellee alleged that this use had been continuous, open, uninterrupted, and adverse, and that it had become a road by prescription, and that the appellee was entitled to have the same kept open. He also alleged that his land was entirely surrounded by the lands of others, and that he was entitled to a way along the right of way of the appellant ag a way of necessity. The defendant answered by general demurrer, special exceptions and general denial, and the case was tried before the court without a jury. The court found that a way along appellant’s right of way had been used by the public generally, and by the ap-pellee, for more than 18 years; that it had become a way by prescription. The court further found that there was no way of egress for the appellee from his land, and that he was therefore entitled to a way of necessity over the right of way of the appellant, and that the appellee was entitled to have a road left open for a width of 20 feet, granting him a writ of mandatory injunction to keep the said road open and a judgment for damages in his favor in the sum of $50. Erom this judgment the Gulf, Colorado & Santa FS Railway Company has appealed.

Appellant’s contentions are: First, that no part of the right of way of a railway company can ever become a public highway by prescription; that where, as in this case, land is held by a railway company for its right of way and used as such, it is devoted to a public use, and therefore cannot be taken for or lost by limitation for another public use; second, that the evidence as' a whole shows that the use of said right of way by appellee and the public generally for zO years or more as a passageway was nothing more than a permissive use of uninclosed land, and therefore such evidence is insufficient to form a basis of a right by prescription; third, that the court erred in rendering judgment requiring the defendant to open up a road 20 feet in width, because there was nothing to show that a width of 20 feet was necessary, or that a width of 12 feet would not have been sufficient as a way of necessity, and also because there was no evidence to show that the portion of defendant’s right of way which had been used by the public as a passageway was 20 feet in width, and nothing to show that the zone was more than 12 feet in width.

We do not think the court erred in holding that a portion of a right of way of a railway company might become a public highway by prescription. In the case of G. H. & S. A. Ry. Co, v. Baudat, 21 Tex. Civ. App. at page 241, 51 S. W. 541, at page 543, it is said:

“There is nothing in the contention that the easement for the road could not be acquired over the appellant’s right of' way, which is of itself only an easement. ⅜ * ⅜ The right of the public by prescription has certainly matured.”

It is further held in that case that the acquiescence in th'e use of, and recognition of, the road by the appellant railway company was conclusive against it as to the rights of the public.

Nor do we think the trial court erred in finding that the evidence was sufficient to justify a judgment supporting appellee’s contention that the road had become a public highway by prescription and in rendering judgment for appellee upon such finding.

The evidence shows that the road, as traveled, was along appellant’s right of way; bounded on the west by a fence or fences inclosing the properties of appellee and others and on the east by telegraph poles and other obstructions, and that its width was 20 to 30 feet. Many witnesses testified that said road had been an open road for 20 to 25 years, and that it had during all these years been constantly traveled by the general public until appellant railway company closed it in 19ro. There was also evidence to show that, while neither the county nor city authorities had ever taken charge of said road and caused it to be worked, those living along it or near it had repaired and kept it in repair for many years. We think there was sufficient evidence to support the finding of the court that said road had become a public passageway by prescription. Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; G., H. & S. A. Ry. Co. v. Baudat, 21 Tex. Civ. App. 236, 51 S. W. 541; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874; City of Ft. Worth v. Citti, 38 Tex. Civ. App. 117, 85 S. W. 826.

Neither are we prepared to say that the trial court erred in finding from the evidence that the road in question, as used by the public as a passageway, was 20 feet in width. We think there was ample evidence to support such finding.

We think, however, that the trial court erred in its conclusion that appellee is entitled to a way of necessity over the right of way of the appellant railway company. Such conclusion is not supported by the evidence. But, as the judgment rendered can be supported by the finding that the road was a public highway by prescription, we will not revise such judgment on account of said erroneous conclusion.

What has been said disposes of all the questions presented by appellant. The judgment of the trial court is affirmed.

Affirmed.
      <fe»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    GULF, C. & S. F. RY. CO. v. BRYANT.
    (No. 7595.)
    (Court of Civil Appeals of Texas. Galveston.
    May 29, 1918.
    Rehearing Denied June 20, 1918.)
    Highways <⅞=>7(1) — Railroad Rights op Way — Prescription.
    Where roadway on railroad right of way outside the poles carrying telegraph wires was used generally by the public for hauling and travel for more than 20 years to the knowledge of the railroad, and was worked by the citizens, there was. a public road by prescription.
    Appeal from District Court, Burleson County ; R. J. Alexander, Judge.
    Action by I. B. Bryant against thd Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and Jno'. G. Greggs, all of Galveston, and Bowers & Bowers, of Caldwell, for appellant. W. M. Hilliard and A. B. Gerland, botín of Caldwell, for appellee.
   PLEASANTS, C. J.

This is a suit for an injunction and for damages, brought by ap-pellee against appellant. The petition alleges:

That plaintiff owns and resides upon a tract of one acre of land situated in a suburb of the town of Caldwell in Burleson county known as West Caldwell. That plaintiff’s said home adjoins the right of way of defendant company for a distance of about 100 yards, plaintiff’s premises being west of said right of way and fronting thereon., That some distance south of plaintiff’s premises a public road known as the Caldwell and Brenham road crosses the defendant’s railroad, and that another public road known as the Caldwell and Deanville road crosses defendant’s railroad about one-third of a mile north of plaintiff’s home. That for more than 30 years prior to the institution of this suit there had been a road along defendant’s right of way in front of plaintiff’s premises, connecting the two public roads before mentioned. That said road along the right of way had been used by the public generally, continuously, and openly as a road for travel and traffic in buggies, wagons, and vehicles of all kinds. “That during all of said time the road was always kept in good condition for travel. That said use. of said road as mentioned was during said time continuously of a nature and character reasonably calculated to put defendant on notice that said road was being so used adversely to the rights of the defendant. That defendant had notice of the fact that said road was, during all of said time mentioned, so used by the plaintiff particularly and the public generally, adversely to its rights in said land over which said road was and run. That at the time plaintiff purchased his said home, because of defendant’s conduct and attitude toward the use of said road by the public in the manner above set out, he.had reason to believe, and did believe, that the defendant regarded that the public had acquired an easement in said road, and that said road had become a public road by prescription, and that the defendant would not close said road.” “That on or about the 1st of November, 1915, defendant by force unlawfully entered plaintiff’s home, and ' removed and tore down his northeast boundary line fence, same being the division fence between the plaintiff’s said land and home and the defendant’s right of way, and a fence that plaintiff had placed there in fencing his said home over 10 years prior to said date, November 1, 1915, and destroyed his said fence. That the defendant built a cattle guard just north of where the Caldwell and Brenham road crosses defendant’s said right of way and railroad track, and built a strong four-wire fence from said cattle gap to both fences inclosing its right of way; built said fence from said cattle gap to its west boundary line; thence up its right of way following its western boundary line to plaintiff’s east corner; thence continuing following plaintiff’s east boundary line, same being defendant’s west boundary line, the whole distance between plaintiff’s land and defendant’s right of way; thence continuing up defendant’s right of way following its west boundary line to the point where the Houston & Texas Central Railroad track crosses under the defendant’s railroad track. That said road leading by the home of plaintiff is thereby fenced in and stopped up at both ends, and that said fence completely incloses plaintiff with a strong four-wire fence, without any gate or other means of entering or leaving his said home. That by the defendant so fencing in- said road and plaintiff’s said home, the plaintiff’s outlet of ingress and egress to and from his said home was completely destroyed.”

Plaintiff further alleges that by the wrongful act of defendant in removing plaintiff’s fence and inclosing said public road and thus depriving plaintiff of a way of ingress and egress to and, from his home, plaintiff has suffered damage in the sum of $1,600. The prayer of the petition is for a mandatory injunction,"requiring the defendant to remove the fences built by it across said road and to open and restore said road as a public highway for the use of plaintiff and the public generally, and for recovery of the damages claimed in the petition. The defendant answered by general demurrer and general denial. The trial in the court below without a jury resulted in a judgment in favor of plaintiff, granting a mandatory injunction, requiring defendant to leave open a road 20 feet in width along defendant’s right of way, connecting the two public roads mentioned in the petition, and awarding plaintiff damages in the sum of $105.

The following facts were found by the trial court: y

“I find defendant’s right of way to be-100 feet wide, extending 50 feet on either side from center of track or roadbed; I find that for more than 20 years that a road was used by the public generally from the Brenham and Caldwell road to Deanville road near oilmill or cotton platform; that on the west of said road the boundary was defined by a fence on west line of said defendant’s right of way, and that the railroad .bed, beginning at about 2 feet at or near crossing at Caldwell and Brenham road, and increasing in height until same was 5 to 6 feet in front of plaintiff’s premises; that this roadbed was about 30 or 35 feet from the fence, and that there were telegraph poles about 100 feet apart 25 feet from the center of track; that this road was confined between the roadbed of defendant and such fence; that the road was at or in close proximity to the west line of defendant’s right of way, and situated thereon, was 20 feet wide, ancl ran with line of said right of way; that sometimes when muddy that there would be travel between the telegraph poles and roadbed, but that suc-h was sporadic. I find that this road was used daily, a great number of wagons and other vehicles passing over the same, up to 1912, and has been so used by the public generally for more than 20 years and by the plaintiff for between 9 and 10 years, and was a public road by prescription, and same was used in hauling cotton, brick, wood, lumber, and other commodities; that it was traveled and used by the plaintiff in going to and from town to depot, lumber yards, and other points in town, also in going to his school and church; that for 10 years it was the best road, and a large amount of travel from the Brenham and Caldwell road traveled this road. I find that this road was worked at times and kept in condition by the citizens, but there is no evidence that it was ever worked or claimed by the city of Caldwell or by the commissioners’ court prior to incorporation of city of Caldwell.”

These findings are all amply supported by the evidence. We think these facts show more than a mere permissive use of appellant’s uninelosed right of way. The long-continued and uninterrupted use by the public as a roadway of that portion of appellant’s right of way lying between the fences on the west line of the right of way and the row of telegraph poles along the west side of the railroad track shows an exclusive appropriation of the land for use as a public road of that portion of the right of way, and appellant’s long acquiescence in such exclusive use by the public has matured the public’s right in such road by prescription.

The undisputed evidence shows that while this road was never declared a public road by the county or town authorities, nor kept in condition or worked by any public authority, it was worked and kept in condition by the citizens who used it, and that for more than 20 years it has been a much-used, public thoroughfare. It seems to us that if this evidence does not show a sufficiently definite use of a roadway by the public to establish the right in the public by prescription, to such roadway, no such prescriptive right could ever be established. Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Railway Co. v. Baudat, 21 Tex. Civ. App. 230, 51 S. W. 541.

Whatever may be the rule in other jurisdictions, the B-audat Case above cited holds that the right to a roadway along the right of way of a railway company can bo acquired by the public by prescription. We think this ruling is sustained by the holding of our courts that title to the unoccupied portions of a railroad right of way may be acquired by exclusive adverse possession under our statutes of limitation.

The conclusions above expressed require the affirmance of the judgment of the court below, and render a detailed discussion of the several assignments of error presented in appellant’s brief unnecessary.

Affirmed.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. MILBY.
    (No. 7581.)
    (Court of Civil Appeals of Texas. Galveston.
    May 16, 1918.)
    1. Carriers <§=>230(4) — Injuries to Cattle— Contributory Negligence — Evidence.
    In action for injuries to cattle in shipment, testimony of plaintiff’s agent that the cars were not properly bedded, and that he knew that cattle could not properly be shipped in unbedded cars for any distance, did not show contributory negligence as a matter of law, in the absence of evidence as to the .distance the cattle were shipped.
    2. Railroads <§=265 — Receivers—Injury to Live Stock Shipped.
    To make a railway corporation liable for injuries to properties of a shipper while the railway was in the hands of and being operated by a receiver appointed by a federal court, it must be shown that the receivership has terminated and the railway returned to the corporation with such liability imposed upon it 'by the decree of the court as a condition to receive it, or that the revenues received by the receiver were expended by him in betterments.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by John Milby against Frank Andrews, as receiver of the Beaumont, Sour Lake & Western Railway Company, wherein on the receiver’s discharge the Railway Company was made defendant. Judgment for plaintiff, and the Railway appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, of Houston, for appellant.
   LANE, J.

This suit was originally brought by appellee against Frank Andrews, as receiver of appellant railway company, to recover tbe sum of $500 as damages to a shipment of two cars of cattle delivered to him as such receiver, for transportation from Huffman, Tex., to Houston, Tex. Before the trial of the cause, the receiver had been discharged and the properties again returned to the railway company. Thereafter, appellee by amended pleading alleged the discharge of the receiver, and the return of the property into the hands of the railway company, and had said company made party defendant. The specific grounds of negligence of the receiver alleged were: First, that said receiver, his agents and servants, failed to properly bed the floor of the car in which the injured cattle were loaded for shipment; second, that said cattle were carelessly aud roughly handled in stopping and starting the train in which they were transported between stations from Huffman to Houston. He further alleged that at the time said railway properties were redelivered by the receiver to the company such properties were worth an amount greatly exceeding appel-lee’s claim and were worth all of the value of $1,006,000, and that said receiver expended sums largely in excess of appellee’s claim in betterments of said properties. Appellant, the railway company, answered by general demurrer, general denial, and by specially pleading that the car in which the injured cattle were shipped was not properly bedded, and that appellee, knowing the danger incident to the failure to properly bed said car, loaded his said cattle therein for shipment, and by reason thereof he was actually guilty of contributory negligence which was the proximate cause of the ¿lamages suffered.

The cause was tried before a jury, who found upon special issues submitted to them: First, that the defendant did not use ordinary care in placing bedding in the car in which the cattle were loaded; second, that such failure to use ordinary care in bedding said car was the proximate cause of the injury to plaintiff’s cattle; third, that no injury was done to said cattle by bulls mixed in said shipment; fourth, that the cattle of the plaintiff -were damaged in the sum of $377. Upon the verdict of the jury and findings of the court judgment was rendered in favor of the plaintiff, Milby, against the Beaumont, Sour Lake & Western Railway Company for the sum of $355. Judgment was also entered in favor of Frank Andrews, receiver, and he was discharged with his costs. From this judgment so rendered said railway company has appealed.

By the first assignment it is insisted that the court erred in not instructing a verdict for defendant. The contention of appellant is that said instruction should have been given: (1) Because the undisputed evidence shows that the agent of appellee who loaded his cattle into the car in which they were shipped knew that said car was not properly bedded for the shipment of cattle, that he knew that it was dangerous to load and ship the cattle in a car so bedded, and that if they -were so loaded and shipped they would probably be injured, and therefore appellee was chargeable with contributory negligence as a matter of law, which should bar his recovery for injury to his cattle; and (2) because it was not shown by the evidence the existence of any fact which would make the railway company liable for damages caused by a tort or any breach of duty on the part of the receiver, Frank Andrews, his servants or agents.

We do not think we would be justified in holding that the evidence shows contributory negligence on the part of appellee or his agent, as a matter of law. The cattle were loaded at Huffman, Tex., and transported to Houston, Tex. This court is not advised, from any evidence in the statement of facts or by anything in the record as to the distance between Huffman and Houston; so far as the evidence discloses, such distance may be 100 miles, or it may be only 10 miles. The witness D. W. Bekols, appellee’s agent, who loaded the cattle at Huffman, testified as follows:

“I told the conductor, I said ‘This car ought to be bedded.’ I said, ‘These cattle are liable to got in bad shape before they get to whore they are going,’ and I said, T load lots of cattle out, and 1 know they do get in bad shape.’ He asked me this, he said; ‘Did you ask the agent?’ and I said, T told him, and he said he had nothing to bed it with.’ I have been shipping cattle pretty near all my life. I am 42 years old, and it is very seldom that I ever ship cattle without bedding. I have had experience enough in shipping cattle to know if they ship them without bedding, if they go any length or anything, they get in bad shape, awful bad shape. By bad shape, I mean they get down, and the other cattle tromp them to death whenever a cow gets down. They don’t go any piece hardly before they get the car slippery, and they got down, and, 'whenever they get down, there ain’t no chance to get up. The cattle wet the cars, and it is only a little while until they lay flat down, and, when they do, that settles it; they are just tromped all to pieces. I saw the two cars before we started loading, and I saw the condition of the cars. One of them was not bedded. I said it was bad to load them in there when it wasn’t bedded, because they would slip down and fall down and couldn’t get up.”

It will be observed that the witness stated that he had experience enough in shipping cattle to know that if they are shipped any distance in unbedded cars they get in bad shape. We think the reasonable inference to be drawn from his testimony is that he meant to say that cattle might be shipped a short distance in unbedded cars without injury, but not a long distance. In view of the fact that the distance the cattle were shipped is not shown, we do not think the trial court would have been justified in holding that the evidence showed contributory negligence on the part of the agent of appellee. The question of contributory negligence was one to he decided by the jury upon proper charge submitting that issue. We overrule the first contention.

Wq must, however, sustain the second contention. Frank Andrews was appointed receiver of the properties of the defendant railway company by the United States District Court for the Southern District of Texas. Appellee alleged in his petition that at the time of the injury to his cattle the railway of the defendant railway company was being operated by Frank Andrews, receiver, and that the cattle were injured through the negligence of the receiver, his agents and servants. The undisputed evidence shows that the cattle were shipped and injured while said railway was being operated by said receiver. The only grounds alleged by apxiellee which would entitle him to recover from the railway company for the negligent acts of the receiver, if found to be true, were:

“That during said possession by said Andrews as receiver, in his capacity as receiver, he expended large sums derived from current income and earnings as receiver in making permanent improvements on said railway; said railway company was greatly benefited and permanently improved and greatly enhanced in value by such betterments in a sum largely exceeding plaintiff’s claim, and when so repossessed of its franchise and properties became liable to pay to plaintiff his damage sustained as above set forth.”

Before appellee could recover from the Railway Company the damages he alleged he suffered by reason of the negligence of the receiver, he must prove the allegations which he alleged tending to show liability of the railway company. This he has wholly failed to do. The agreement of the parties that after the injury to appellee’s cattle the receiver redelivered the railway properties to the railway company, and that at the time of such redelivery said properties were worth $1,000,000, is not an agreement that said properties were turned over to the railway company with betterments; there being no evidence as to the value of said properties at the time the same were placed in the hands of the receiver.

To malte a railway corporation liable for injuries to properties of a shipper, while said railway was in the hands of and being operated by a receiver appointed by a federal court, it must be shown that the receivership has terminated and the railway returned to the corporation with such liability imposed upon it by the decree of the court, as a condition to receive it, or that the revenues received by the receiver were expended by him in betterments. Kirby Lumber Co. v. Cunningham, 154 S. W. 288; Beaumont, Sour Lake & Western Ry. Co. v. Daniel, 195 S. W. 625; Railway Co. v. McFadden, 89 Tex. 138, 32 S. W. 526; Fordyce v. Du Bose, 87 Tex. 78, 26 S. W. 1050; M., K. & T. Ry. Co. v. Wood, 52 S. W. 94.

By the second assignment complaint is made of the refusal of the trial court to submit the question of contributory negligence on the part of appellee, though being requested to do so by appellant’s special charge. This assignment is sustained. The evidence was such as demands such instruction.

For the reasons pointed out, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      <§=>E'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CITY OF BROWNSVILLE v. KINDER.
    (No. 6055.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 29, 1918.
    Rehearing Denied June 21, 1918.)
    1. Municipal Corporations <@==>164 — Reduction oe Salary — Statute.
    Rev. St. 1911, art. 816, applying to the salaries of officers of a city incorporated under the provisions of the title, provides that the salaries of officers appointed by the city council on or before the 1st day of January next preceding every election shall be fixed by the council, and that the compensation so established shall not be changed during the term. Article 784 provides that the city attorney shall be elected by the qualified electors and hold office for two years, etc. The city adopted a commission form of government, the charter providing that the present city attorney should hold office and enjoy emoluments thereof until the first Tuesday in April, 1916. By an ordinance passed on May 26, 1913, a salary of $100 per month was appropriated for the city attorney. Held, that such ordinance established his salary, that under the new charter he was entitled to enjoy it, and that it could not be reduced before expiration of his term in April, '1916.
    2. Municipal Corporations <@=>122(2) — Officers — Salaries.
    Where ordinance appropriated money “until further commanded by order of the city council” to pay city attorney’s salary, it must be presumed that the appropriation was made within Rev. St. 1911, art. 816, and was intended to provide for payment of officers to be elected in the following year.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge. -
    Action by T. A. Kinder against the City of Brownsville. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 180 S. W. 623.
    Amos Rich and James A. Graham, both of Brownsville, for appellant. H. W. Williams, Ira Webster, J. T. Canales, and Harbert Davenport, all of Brownsville, for appellee.
   FLY, C. J.

Appellee sued for and recovered from appellant the sum of $1,350 salary as city attorney. Appellant admitted that it had made appropriations to cover, at different times, the salary of appellee, but denied that an ordinance had ever been passed fixing the salary of appellee at $100: that no ordinance was passed by appellant fixing such salary until July 17,1911, when the salary was fixed at $600 per annum, payable in monthly installments, and that on December 28, 1914, the salary of the dty attorney was fixed at $25 a month. The cause was tried by the court, without a jury, and judgment rendered in favor of appellee for $1,350. Appellant pleaded a cross-action against appellee, but it was denied by the court.

It was agreed by the parties that for ten years prior to December 14, 1914, appellant had been incorporated under the general laws for cities of less than 10,000 population, and duly elected its officers, among the number a city attorney; that on July 10,1915, the commission form of government was adopted for appellant by the qualified voters therein; that an election was held on December 14, 1914, and a special charter adopted for the commission form of government, and a mayor and four commissioners were elected for two years from the date of their election and qualification. It was further agreed that the charter provided:

“Upon their qualification such mayor and commissioners shall be and constitute the governing body and authority of the city of Brownsville, and shall thereafter administer its affairs agreeably to the provisions of this charter, provided that the present city secretary, city treasurer, city assessor and collector, city attorney and city marshal shall hold and retain their re- - spective offices, if they so desire, and enjoy the emoluments thereof, as now provided, nntil the first Tuesday in April, A.'D. 1916.”

It was also agreed that in cause No. 985 in the county court tnere had been an agreement between the parties:

“That there was in existence a valid subsisting city ordinance fixing the salary of T. A. Kinder at $100.00 per month at and before he was elected at the general city election in April, 1914, and while that ordinance was in full force and effect, the ordinance of December 28, 1914, to reduce his salary to §25.00 per month was passed.”

In the county court ease was litigated the right of appellee to recover the salary of $100 a month for January and February, 1915, and appellee recovered judgment for the amount sued for, and upon appeal to this court that judgment was affirmed, and an application for a writ of error was dismissed for want of jurisdiction by the Supreme Court, and the judgment has been fully paid. The amount of appellee’s salary was fully paid until January and February, 1915, hut beginning with March, 1915, the salary was not paid for the balance of the time appellee served appellant. The ordinance of December 28,1914, was regularly passed several months after appellee’s election for two years, in April, 1914.

If the salary of appellee had been fixed by an ordinance which was in existence at the time appellee was elected in April, 1914, it could not be changed or repealed during the term of two years for which he had been elected. Brownsville was first incorporated under the provisions of title 22, Revised Statutes, and in article 816 of -that title it is provided that the salaries of the mayor and officers elected or appointed by the city council shall be fixed by the city council before January 1st next preceding each election, “and the compensation or salary so established shall not be changed during the term for which said officers shall be elected or appointed.” In article 784, it is required that the treasurer, assessor, collector, secretary, city attorney, marshal and engineer shall be elected by the qualified voters for a term of two years. Brownsville v. Kinder, 180 S. W. 623.

By an ordinance passed on May 26, 1913, it was provided that certain sums should be appropriated for the salaries of the officers of the city of Brownsville, among the number being the salary of $100 per month for the city attorney. That ordinance had the effect of fixing the salary, because it would have been of no avail to appropriate a salary that had not been fixed and determined upon by law. The Supreme Court of Texas, in Conley v. Daughters of the Republic, 106 Tex. 80, 156 S. W. 197, 157 S. W. 937, has gone to the extreme of holding that an appropriation of $5,000 to improve the Alamo and to he expended under the direction of the superintendent of public buildings and grounds upon the approval of the Governor had the effect of setting aside a statute which placed the Alamo property in San Antonio in the hands of the Daughters of the Republic of Texas, to be maintained and remodeled, and permitting the Governor to assume control of the grounds and oust the custodians. It will not be a forced construction to hold that an appropriation for a salary created the salary. In the case cited there was nothing in the caption of the general appropriation bill to show any desire to repeal or impair the former statute, but it was held nevertheless that it did so, and granted powers to the Governor, by an appropriation, that virtually destroyed the former law. The ordinance in question was natural and pertinent to the question of salaries, and by the appropriation for the salaries created the salaries. The ordinance had the effect of setting aside all former ordinances in conflict with it. That ordinance was in effect when appellee was re-elected in 1914, and it fixed his salary for two years from that' time. -It was passed before January, 1914, and fixed the salaries of the city officers who were chosen at the following election in April, 1914. The attempt to change the salary of appellee, made by the ordinance of December 28, 1914, was null and void, and did not affect the salary fixed when the city attorney was elected. The new charter was adopted on December 14, 1914, and in that charter it was provided that certain officers, among the number the city attorney, “shall hold and retain their respective offices, if they so desire, and enjoy the emoluments thereof as now provided until the first Tuesday in April A. D. 1916.” It will be presumed that when the voters adopted that charter they intended that the' city attorney should “enjoy the emoluments” legally fixed by ordinance, and not the illegal reduction of the salary afterwards made in December, 1914. The emoluments then provided were the $100 a month appropriated on May 26, 1913. The matters of law in this case have been before this court before, the same parties being concerned and the same issues arising, and the litigation should have been ended by our former opinion. 180 S. W. 623. The plea of res adjudica-ta has not been interposed in the present case, however, as it' should have been, and the whole of the issues have been gone over again. That the action of the council on May 26, 1913, was through the medium of an ordinance, and not a mere resolution, we think is clear. It was providing for salaries for two years, is called an ordinance, and it must be presumed that everything necessary to make it an ordinance was done. San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735.

It is the contention of appellant that each of the ordinances specially limits the appropriation for salaries to one year, and that is undoubtedly true as to most of them, but the ordinance of May 26, 1913, makes the appropriation “for the support, maintenance, and to pay the current expenses and obligations of the city of Brownsville, Texas,” and the treasurer was authorized to pay the appropriations “until further commanded by order of the city council of said city.” There is no limitation as to time, and it must be presumed that the appropriation was made in compliance with the terms of article 816, Revised Statutes of Texas, and was intended to provide for the payment of the officers to be elected in April, 1914. Appellee was duly elected to the office of city attorney at that election, and Ms salary, which was fixed by the ordinance of May 26, 1913, could not be changed during the term for which he was elected. If the change of charter would have destroyed the office and emoluments, it was remedied by a provision of the charter which continued the office and salary to the end of the two-year term.

The judgment is affirmed.
      <@=>]ror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    WATERMAN LUMBER CO. v. BEATTY.
    (No. 1995.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 19, 1918.
    Rehearing Denied June 27, 1918.)
    1. Infants <S^14 — Employment — ''‘Dangerous Machinery.”
    A log-loading machine, track-laying outfit, or a locomotive engine propelled by steam, is a “dangerous machine” within Acts 32d Leg. c. 46, p. 75 (Vernon’s Ann. Pen. Code, 1916, art. 1050), prohibiting employment of infants under 15 years of age in establishments using dangerous machinery.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Dangerous Machinery.]
    2. Master and Servant <⅞=3366 — Workmen’s Compensation Act — Infant.
    In view of Acts 35th Leg. c. 103, § 12i (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 30), the Workmen’s Compensation Act does not apply to infants employed around dangerous machinery in violation of Afcts 32d Leg. c. 46 (Vernon’s Ann. Pen. Code 1916, art. 1050.)
    3. Insurance ®=^>437 — Indemnity Insurance.
    A casualty insurance policy to cover all employes “legally employed” does not cover persons employed in violation of law as to age.
    4. Master and Servant <®=95 — Injuries to Infant Servant — Negligence.
    Employment of a servant under 15 years of age to work around dangerous machinery in violation of Acts 32d Leg. c. 46 (Vernon’s Ann. Pen. Code 1916, art. 1050), is negligence per se, ■ and a servant may recover although not engaged at the very place of work he was primarily employed to do.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by Dave Beatty against the Waterman Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is for damages for personal injuries. The negligence alleged is in employing an inexperienced youth under 15 years of age to do and perform the work of a railway brakeman, and to do and perform the work required of the plaintiff, and in not warning him of the danger incident to the work. The defendant answered that the plaintiff was more than 15 years old, and was not employed about the machinery in any mill or factory or manufacturing establishment using dangerous machinery. Further, that the defendant had accepted and was operating under the Employers’ Liability Act of Texas and had insured its employés against loss and injury in the Home Life & Accident Company of Arkansas and had paid all premiums and given notice of the fact to the plaintiff; that the plaintiff had accepted and agreed to work under the Employers’ Liability Act, and had given no notice of his intention not to be bound by the said act and compensation. The plaintiff by supplemental petition replied denying that’ the Workmen’s Compensation Act applied because the plaintiff was employed in violation of the law, and that the insurance policy does not cover a case of unlawful employment. The jury returned a verdict in favor of the plaintiff.
    The court’s charge authorized a recovery in favor of the plaintiff only upon the finding that the plaintiff was under 15 years of age and employed in violation of the child labor law. The Waterman Lumber Company is a lumber corporation engaged in the manufacturing of lumber and has its headquarters in the town of Blocker, about 19 miles southeast of Marshall on the Marshall & East Texas Railroad. The railroad at that point runs about east and west, and the Waterman Lumber Company’s mill is stationed at Blocker. The Waterman Lumber Company also owns a tram railroad that joins onto the Marshall & East Texas Railroad about a mile east of the town of Blocker and runs south to another mill owned by the Waterman Lumber Company, known as the Horton mill, and thence 10 or 12 miles into the woods down Sabine river. It also owns another tram that joins onto the Marshall & East Texas Railroad a short distance west of Blocker station and runs south into the woods. These are tram roads owned by the Waterman Lumber Company and used to haul logs from the woods into the mill and to haul lumber from the Horton mill up to the Blocker station. In going and returning to work the hands would usually ride the trains. Dave Beatty was a minor, and there was a question in the case whether he was under 15 or over 15 when he was injured. There is involved in the verdict of the jury the finding that the hoy was under 15 years of age. There being evidence to support the finding, it is here adopted. He was injured about the 9th of May, 1917. Dave Beatty was primarily employed by the lumber company to perform the work of what was familiarly known as “riding the mule,” and his service was as follows: The lumber company owned some logging cars, and on one of these cars was a machine operated by steam, and attached to this machine was a drum, on which was wound a long rope. Beatty would take his mule and hitch to the end of this rope and ride the mule out into the woods where a log had been prepared, and another man would then hitch the end of the wire rope onto the log with clamps or tongs. "Wayne Phillips then, by operating the machine on the car, would wind the rope onto the drum and drag the log to the side of the track. Then Beatty would hitch his mule to the end of the wire rope with the clamps and pull it out to the next log to be hauled in. He was not injured while performing this work. It was sometimes required of David Beatty, as a part of his employment, to do some other work as his foreman ordered and to aid the men in laying down the iron rails on the tram railroad that runs from the Marshall & East Texas road out into the woods. His duty generally in performing this work was to carry water to the hands, distribute spikes and fish bars along the track where the rails were being placed.
    David Beatty with his father lived at Horton about 9 or 10 miles out from Blocker station. On the morning he was injured, they were going to come from Horton on the tram road north to the Marshall & East Tex- ■ as Railroad east of Blocker, and then come on the Marshall & East Texas to the point west of Blocker; then go south on that tram with the purpose of laying iron at the south end of that tram road. David Beatty and the other workmen left Horton on the hand car, operated by hand, and on the way up to the north end of the tram, before they got to the Marshall & East Texas road, the morning being quite cool, David Beatty left the hand car and went to the Shay engine, which was proceeding in front of him on the road going up to Bloclcer also. He went and got on the Shay engine, and in a few minutes they arrived at the place where the tram joins onto the Marshall & East Texas. It being a steep downgrade there, David Beatty left the cab of the engine and went out on the front of the footboard for the purpose of putting some sand on the track, which sand was carried in a bucket on the front end of the engine. There is a dispute a,s to whether the fireman on the Shay engine told him to do that, or whether the engineer, on the Shay engine told him to do that. Dave Beatty got out on the front end of the engine, and in some way he fell off onto the track in front and had his leg severely mashed. It was permissible for the hands who worked with the loader and the Shay engine to ride on it in going to and returning from work. The Waterman Lumber Company employed more than five men, and had taken out insurance, effective at the time of the injury, in an accident insurance company obligating itself to relieve the Waterman Lumber Company from the liability under the Workmen’s Compensation Act of Texas, but stipulating, “This policy shall cover all employes of the employer legally employed.” The defendant posted notices calling the attention of employés to the insurance being taken out by the company. It was proven that the defendant company paid for the insurance by deducting each month from the pay of their employes.
    F. H. Prendergast and R. A. Hall, both, of Marshall, for appellant. T. W. Davidson, of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above).

Under appropriate assignments of error the appellant insists that the plaintiff cannot maintain his suit in court against the company, but must seek his remedy under the terms of the Workmen’s Compensation Act of the state. Acts of 1917, p. 269 (Vernon’s Ann. Code Civ. Supp. 1918, arts. 5240a to 5246 — 107). And the appellee says that this act does not, under the circumstances, apply to this case, for the reason that David Beatty was employed in violation of the Penal Code, and the insurance policy does not cover a case of unlawful employment. The Penal Code provides:

“Any person, or any agent, or any employ® of any person, firm or corporation who shall hereafter employ any child under the age of fifteen years to labor in or about any manufacturing or other establishment using dangerous machinery, or about the machinery in any mill or factory, * * * shall be ⅜ * * guilty of a misdemeanor,” etc. P. C. art. 1050; Acts 1911, p. 75.

And the Compensation Act, in force at the time of injury, provides:

“This section shall not be considered as authorizing the employment of a minor in any hazardous employment which is prohibited by any statute of this state.” Acts 1917, p. 269, § 12i.

And the circumstances in the case show, it is thought, a violation of the statute. The boy, Dave Beatty, was under 15 years of age, and was employed to labor about an establishment or mill using dangerous machinery. A log-loading machine, a track-laying outfit, or a locomotive engine propelled by steam is a “dangerous machine.” And a conveyor of any kind operated by steam power and used to carry logs from the forest to the mill to be made into lumber can be said to be, in point of fact, a necessary part of the manufacturing “establishment.” Wendt v. Industrial Ins. Commission, 80 Wash. 111, 141 Pac. 311; Hillestad v. Industrial Ins. Com., 80 Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789. While the criminal law only punishes the “agent” or “employé” of a person or corporation for violation of the child labor law, the effect is to directly forbid persons or corporations employing children under 15 years of age in certain occupations. For the words “agent” and “employé” are of a representative relation. And the provisions of the Workmen’s Compensation Act apply only, it is believed, to valid employment contracts. See Hetzel v. Ring Co., 89 N. J. Law, 201, 98 Atl. 306. The insurance policy in evidence provides, “This policy shall cover all em-ployés of the employer legally employed.” And persons employed in violation of law as to age will not be within its terms. Ætna Life Ins. Co. v. Tyler Box & Lumber Mfg. Co., 149 S. W. 283. It is believed that appellant’s contention should be overruled.

As it must be said, it is thought, that the boy was employed by the lumber company, the employment in violation of the statute gives rise to a cause of action in behalf of the boy, being injured, as he was, as it is concluded, while, in the employment. And it is, as held, negligence per se to violate the statute. 1 Thompson on Negligence, § 10; Stirling v. Mfg. Co., 159 S. W. 915. And the plaintiff may recover although at the time the boy was not engaged at the very piece of work he was primarily employed to do. Starnes v. Albion Mfg. Co., 147 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. Cas. 470; McGowan v. Ivanhoe Mfg. Co., 167 N. C. 192, 82 S. E. 1028. The unlawful employment is deemed as the proximate cause of the injury. The second, third, fourth, and fifth grounds of insistence are overruled.

It is concluded that the court may not disturb the verdict of the jury as excessive.

It is concluded by the court that the fifteenth assignment of error should be overruled.

The judgment is affirmed.
      (Ss^For otiler eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes