author: SPEER, J.

text:
    BURNETT v. MITCHELL et ux.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 25, 1913.
    On Rehearing, March 1, 1913.
    Writ of Error Denied by Supreme Court May 28, 1913.)
    1. Specific Performance (§§ 5, 102) — Nature of Remedy.
    The remedy of specific performance of contracts is purely equitable given as a substitute for the legal remedy of compensation whenever it is inadequate or impracticable.
    [Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 5-8, 318, 319; Dec. Dig. §§ 5, 102.]

      2. Specific Performance (§ 10) — Right to Performance — Performance in Part.
    While ordinarily specific performance of a contract for the conveyance of land will be granted, it will generally be refused where the court can grant specific performance as to only part of the land agreed to be conveyed.
    [Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.]
    3. Specific Performance (§ 10) — Conveyance-Contracts — Validity.
    Under Rev. Civ. St. 1911, art. 1115, providing that a homestead shall not be sold or conveyed without the consent of the owner’s wife, a contract for the conveyance of a homestead cannot be specifically enforced unless the wife joined.
    [Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, '50; Dec. Dig. § 10.]
    4. Specific Performance (§ 10) — Right to —Partial Performance.
    Where a contract for the sale of land included the vendor’s homestead, though his wife was not a party, specific performance will not be granted as to the land not a part of the homestead where the plaintiff did not offer to accept a conveyance of it in compliance with the contract, for, to grant specific performance of part of the land, leaving plaintiff a right of action for damages, would be making a new contract for the parties.
    [Ed. Note. — Por other cases, see Specific Performance, Cent. Dig. §§ 20-25, 50; Dec. Dig. § 10.]
    On Rehearing.
    5. Costs (§ 238) — Costs of Appeai>-Presen-tation of Grounds of Review Below.
    In an action for specific performance, where the decree erroneously failed to require the vendor to return the purchaser a deposit, costs of the appeal will not be allowed the purchaser who was unsuccessful below, where the motion for new trial did not call that error to the attention of the lower court.
    [Ed. Note. — Por other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.]
    Appeal from District Court, Knox County; Jo. A. P. Dickson, Judge.
    Action by S. B. Burnett against J. J. Mitchell and wife. Prom a judgment for defendants, plaintiff appeals.
    Modified and affirmed.
    Montgomery & Britain, of Wichita Palls, Jos. A. Stephens, of Big Springs, and J. S. Kendall, of Munday, for appellant. Carri-gan & Householder and Mathis & Kay, all of Wichita Falls, D. J. Brookreson, and J. H. Milam, both of Benjamin, for appellees.

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

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

   SPEER, J.

This is an action by S. B. Burnett against J. J. Mitchell and wife seeking a decree for specific performance of a contract to convey certain lands in Knox county. The case was submitted to a jury on special issues, and, from a judgment in favor of defendants, the plaintiff has appealed.

The contract whereby appellee J. J. Mitchell bound himself to convey to appellant the lands in controversy was not signed by Mrs. Mitchell and embraced lands occupied and claimed by the Mitchells as their homestead. This contract did not fix the price of the various tracts or any of them as to that, but stipulated for a reference to persons named whose appraisement would be accepted as the price which Burnett was to pay and Mitchell to accept. The individuals agreed upon as appraisers examined the land and fixed a price which was not satisfactory to Mitchell. In his answer it was alleged that these appraisers had not acted impartially but had been unduly influenced by the improper conduct of appellant in “entertaining and treating” them, and that their appraisement was therefore at a sum much less than the real values of the land, and appellees’ principal defense was that such contracts could not and should not be specifically enforced. The jury found that the price fixed .for the lands was not their fair market value but that the appraisers were unconsciously influenced to act partially in the matter, and the verdict named a sum as the fair market value of the lands in excess of that named by the appraisers. They also found the homestead of 200 acres to be worth $12.50 per acre, which is very much in excess of the valuations placed on the remainder of the land. There was an issue of estoppel pleaded and submitted to the jury, but we consider it to be immaterial to the disposition we make of the case.

A point which cannot be got over and which in our judgment is decisive in favor of an affirmance of the case is this: Appellant’s petition discloses that the contract between himself and appellee J. J. Mitchell is not enforceable as a whole because it embraces the homestead of Mitchell and his wife, and the petition in no manner alleges such a state of facts as to make it a fraud or even inequitable not to decree a specific performance of all the lands, less the homestead, with appropriate abatement of the purchase xirice. The remedy of specific performance of contracts is purely equitable, given as a substitute for the legal remedy- of compensation whenever the legal remedy is inadequate or impracticable. 3 Pom. Eq. Juris.' § 1401.

Ordinarily where land is the subject-matter of the agreement, the inadequacy of the legal remedy is well settled; and, when the contract and its incidents are entirely unobjectionable (that is, when it possesses none of the features which call in action the discretion of the court), it is as much a matter of course for a court of equity to decree its specific performance as it is for a court of law to give damages for its breach. It is equally well settled, in truth elementary in principle, that ordinarily, unless a court can decree specific performance of the whole of a contract, it will not interfere to enforce any part of it. Young Lock Nut Co. v. Brownley Mfg. Co. (N. J. Ch.) 34 Atl. 947. Undoubtedly a court is not wanting in power to enforce specific performance in part only I as against a defendant who is unable to perform in whole, but the circumstances and exigencies must be such as to demand such course so as to prevent a greater wrong than would follow the court’s refusal. The present contract, in so far as it embraces the homestead of appellees, cannot be specifically enforced. Revised Statutes 1911, art. 1115. This would be true even though the wife herself had signed the contract to convey. Cross v. Bverets, 28 Tex. 523; Jones v. Goff, 63 Tex. 248.

Appellant recognizes the impossibility of having a specific performance as to all the land and offers in his petition to do equity with respect to the homestead. It is worthy of note in this connection, however, that he does not offer unconditionally to accept from, appellee J. J. Mitchell a conveyance of the lands other than the homestead as a full compliance with the contract. If he had we might be confronted with altogether a different case from what we are now considering. There is practically no disagreement among the authorities and cannot be any question in this state that the contract cannot be enforced as we find it. And just here arises the obstacle to enforcing it in any respect at all. It is that it would entail upon the court the duty of making and enforcing for the parties a contract which they themselves have never made. By way of argument the Supreme Court of Iowa in Townsend v. Blanchard, 117 Iowa, 36, 90 N. W. 519, say: “Under the Oode of 1873 we have almost uniformly held that a contract to sell a tract of land from which a homestead might have been selected, made by the husband alone, was void, not only as to the homestead which might be selected, but also as to the entire tract.” In Hall v. Loomis, 63 Mich. 709, 30 N. W. 374, an action for specific performance of a contract to convey land, including a homestead, the Supreme Court of Michigan say: “Hall and his wife occupied this property as their home. It could not, while so occupied, be disposed of except by the joint action of husband and wife. The contract, so far as it covered the homestead, was a nullity. It could not be enforced at all. Mrs. Loomis was not obliged to convey her own land except by this written contract. Any arrangement which Mrs. Hall might be willing to make would be a new and different contract, and none such has been entered into. Mrs. Loomis could not have enforced this and was not bound by it. The fact that the property contained more in value than the homestead, and that the contract may have been valid for the excess, will not avoid the difficulty. In Phillips v. Stauch, 20 Mich, 369, a similar question came up, and this court refused to attempt any specific performance as to the residue which complainant was willing to accept with compensation, because it was not the contract the parties made and would require new arrangements not convenient for a court of equity to frame.” As already indicated, we have no doubt in a proper case a court of equity would have the power, and would not hesitate to exercise it, to enforce specifically, even in part, a contract which in some respects is by reason of some law or otherwise unenforceable. Cases wherein contracts in violation of the statute of frauds are daily enforced furnish abundant illustrations. It is permitted that greater fraud and injustice be not allowed. So also and for precisely the same reasons we apprehend a specific performance in part of a contract like the one under consideration might be enforced if the complainant showed such equity as to demand such relief. The case of Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802, illustrates the principle and reasoning back of the line of decisions holding that it may. There it was held in effect that performance of services by one under an agreement by another to make a devise to him when of such a character that the value cannot be pecuniarily estimated and the court cannot restore the promisee to the situation held by him when the agreement was made, nor compensate him in damages, is sufficient to require the court specifically to enforce the agreement in so far as it embraced land not homestead in character. It may be remarked further concerning this case that the complainant was willing to accept such a performance as one in full.

For the reason that appellant’s petition and the undisputed facts show a case which cannot be specifically enforced as a whole because of the inclusion in the contract of an agreement to convey the homestead, and do not show a case where, by reason of partial performance or other equities, it would be a fraud or even unjust not to enforce the contract otherwise than according to its exact terms, the judgment of the district court in favor of the appellees will be affirmed.

On Rehearing.

Appellant has called our attention to the fact that under the pleadings the trial court should have rendered judgment in his favor for the $100 paid to appellee J. J. Mitchell on contract. We think this contention must be sustained, and the judgment is therefore reformed in this particular and judgment here entered in favor of appellant against appellee J. J. Mitchell for that sum. In all other respects the motion for rehearing is overruled. The costs of appeal, however, will stand, as heretofore adjudged, against appellant, since the matter here corrected was not called to the attention of the trial court in the motion for new trial


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    GREENE GOLD-SILVER CO. et al. v. SILBERT.
    (Court of Civil Appeals of Texas. El Paso.
    June 26, 1913.)
    1. Appeal and Error (§ 743) — Assignments op Error — Sufficiency.
    Assignments of error not complying with rules of the Court of Civil Appeals (rule 25 [142 S. W. xii]), which requires them to refer to that portion of the motion for new trial in which the error is complained of, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.]
    2. Appeal and Error (§ 742) — Assignments op Error — Brief.
    Assignments of error will not be considered on appeal, where the propositions in the brief subjoined to the assignments are not suf-' ficient to support the same, as required by rules of the Court of Civil Appeals. Rule 31 (142 S. W. xiii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000.; Dee. Dig. § 742.]
    3. Appeal and Error (§ 763) —Brief — Amendment.
    A brief offered as an amendment to the original brief of appellant could not be considered, where it was not merely a citation of additional authorities, as authorized by rule 38 (142 S. W. xiii), but was evidently intended to meet appellee’s objection that the original briefs did not contain proper statements under the various propositions; amendments other than those authorized by such rule being permitted only for good cause shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3098; Dec. Dig. § 763.]
    4. Appeal and Error (§ 748) — Review — Fundamental Error.
    An objection that the petition was insufficient to support the judgment, being one presenting fundamental error, was reviewable, though the appellee had not complied with the rules relative to the presentation of errors.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 748.]
    5. Judgment (§ 18) — Pleading—Ambiguous Instruments.
    Where written instruments relied on in the petition are pleaded in hsec verba, and are ambiguous, the pleader must, by averment, place some definite construction upon them in order to cure the ambiguity and support a judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 34^37; Dec. Dig. § 18.]
    Appeal from District Court, El Paso County ; J. F. Woodson, Special Judge.
    Action by B. J. Silbert against the Greene Gold-Silver Company and others. From judgment for plaintiff, defendants appeal.
    Affirmed.
    J. E. Wha-rton, of El Paso, for appellants. Goldstein & Miller, of El Paso, for appellee.

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

   HIGGINS, J.

The assignments of error in this cause cannot be considered: First. Because they do not comply with that provision of rule 25 (142 S.r W. xii), which requires that they refer to that portion of the motion for a new trial in which the error is complained of. El Paso Electric Railway Co. v. Lee (on rehearing) 157 S. W. 748, and W. U. Tel. Co. v. Hill, 158 S. W. -, both cases recently decided by this court and not yet officially reported. Second. Because the propositions in the brief subjoined to the assignments are not supported by such statement as is necessary and sufficient to explain and support the same, as required by rule 31 (142 S. W. xiii). Wirtz v. Railway Co., 132 S. W. 510, and numerous cases cited in 3 Michie, Enc. Dig. p. 203 et seq.

On the day before the submission of this cause there was filed by appellants copies of what it seems is intended as an amendment to their original brief. It does not upon its face purport to be an amendment, but was evidently so intended, and was evidently further intended to meet the objection made by appellee to the original briefs that same did not contain proper statements under the various propositions. This is not such an amendment of the original brief as is authorized by rule 38 (142 S. W. xiii), and we will not consider the brief filed herein on May 28, 1913. Peck v. Morgan, 156 S. W. 917. Only for good cause shown will this court ever permit amendments to briefs, except such as is specially authorized by the rule just noted.

The telegrams and letters, relied upon by appellee as evidencing the contract sued upon, are set out in the petition in hsec verba. In so far as concerns liability for past-due salary, the same are regarded as ambiguous. The question of the sufficiency of the petition to support a judgment for such salary, therefore, arises. This presents a question of fundamental error, which it is our duty to, pass upon, regardless of appellants’ compliance with the rules.

Since the telegrams and letters are pleaded in hsec verba, the petition, of necessity, must partake of whatever ambiguity exists therein, and in such case the pleader, by averment, must place some definite construction thereon, in order to cure the ambiguity and to support a judgment. Linton v. Brownsville L. & T. Co., 46 Tex. Civ. App. 225, 102 S. W. 433; Durkee v. Cota, 74 Cal. 316, 16 Pac. 5; 4 Ency. Pl. & Pr. 918. In this case the allegations sufficiently show the construction placed by appellee upon the contract, and the petition is sufficient. McCauley v. Long, 61 Tex. 74; Wooters v. Railway Co., 54 Tex. 294.

Affirmed.


author: ELY, C. J.

text:
    SAN ANTONIO TRACTION CO. v. BADGETT.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing Denied June 28, 1913.)
    1. Trial (§ 308) — Deliberations of Jury-Reading Testimony.
    Rev. Civ. St. 1911, arts. 1963, 1964, authorizing the jury disagreeing as to the statement of any witness to apply to the court to have the witness restate his testimony, and authorizing the court on the disagreement of the jury as to any part of a deposition to permit that part to be read to the jury, do not provide for the reading of stenographic notes to the jury disagreeing as to evidence of a witness, and, in the absence of any other statute on the subject, it is not error to refuse to order the reading of stenographic notes to the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 743; Dec. Dig. § 308.]
    2. Trial (§ 308) — Deliberations of Jury-Reading of Testimony.
    It is not error to refuse to permit the stenographic notes to go to the jury in response to a request therefor to enable a juror to convince the other jurors as to the testimony, and not- to aid his own memory.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 743; Dec. Dig. § 308.]
    3. Carriers (§ 303) — Injuries to Passengers — Liability.
    Where a negligent jerk of a street car threw a passenger from the car injuring her, the street railway company was liable, whether she attempted to alight while the car was in motion or not.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.]
    4. Carriers (§ 347) — Passengers—Alighting from Moving Street Cars —Negligence.
    It is not negligence per se for one to alight from a moving street car, but the question is for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.]
    5. Evidence (§ 598) — Trial (§ 139) — Number of Witnesses — Question for Jury.
    The jury are the judges of the weight and credibility of the testimony, and a verdict sustained by the testimony of one witness and contradicted by several witnesses is not necessarily contrary to the preponderance of the evidence.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598;* Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    6. Damages (§ 132) — Personal Injuries — Excessive Damages.
    Where a person strong before the accident, and earning $50 to $60 a month, was thrown from a street car, and sustained personal injuries consisting of the breaking of the last bone of her backbone which never united, and a depression of her ribs, confining her to bed for seven months, and seriously disabling her for five months more, a verdict for $4,750 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Error to District Court, Bexar County; Arthur W. Seeligson, Judge.
    Action by Nancy J. Badgett against the San Antonio Traction Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for plaintiff in error. Arnold & Carl, of San Antonio, for defendant in error.

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

   ELY, C. J.

This is a suit for damages arising from personal injuries alleged to have been inflicted upon appellee by appellant in negligently starting a car, with a violent jerk or lurch, from which she was about to alight. Appellant pleaded contributory negligence on the part of appellee in stepping from a moving car. The cause was. tried by jury, and resulted in a verdict and judgment for ap-pellee in the sum of $4,750.

Deferring to the verdict of the jury, we conclude that appellee was injured in the sum found by the jury through the negligence of appellant in violently jerking its car while appellee was in the act of alighting from it.

The first, second, third, and fourth assignments of error make complaint of the action of the court in not allowing the testimony of J. R. Peche, appellant’s conductor, to be read to the jury, necessarily by the stenographer from his notes, the only proposition under the assignments being: “In case of dispute or disagreement on the part of the jury as to the effect of the testimony of any particular witness, the jury have a right to have that testimony repeated to them, and it is the duty of the court upon request to have same done.” The only provisions on the subject of recalling witnesses or rereading depositions in case of disagreement of a jury are embodied' in articles 1963 and 1964, Rev. Stats. 1911. In those articles no provision is made for the reading of stenographic i notes to a jury in case of disagreement as to' the evidence of a witness, and it would require legislation to admit of such procedure, although there might be no reason for rejecting the use of such stenographic notes. If the court had ordered the jury to be brought into the courtroom, and had required the stenographer to read from his notes the disputed testimony, while there is no warrant in the law for such action, it might possibly be held such error as could not have injured any one, and consequently not sufficient to form a basis for a reversal. But it was refused, and in the absence of a law permitting or requiring the use of the stenographic notes, when the jury disagree as to evidence, this court cannot hold that the court erred. It might have been well perhaps for the court, if the jury had asked in a legal way for the stenographic report of the evidence, to have suggested that he would have the witness brought upon the stand again, and permit him to detail his testimony to the particular point of disagreement, and we will presume that the court would have done so if it had been practicable to have the witness in attendance; but appellant does not claim that the court erred in failing to make such suggestion, but the contention is that the testimony should have been read from the notes of the stenographer. The decisions of other states under their peculiar statutes cannot be authority for the courts of Texas which must pass upon the action of the trial judge under the statutes of this state. There are decisions, however,which hold that, in the absence of statutes permitting it, it is error to permit the notes of a stenographer to he read to a jury in case of this disagreement as to certain evidence. Fleming v. Town, 67 Iowa, 505, 25 N. W. 752, 56 Am. Rep. 354; Padgitt v. Moll, 159 Mo. 143, 60 S. W. 121, 52 L. R. A. 854, 81 Am. St. Rep. 347. We hold that it was not error to deny the reading of the stenographer’s notes to the jury after their retirement, because there is no statute permitting or authorizing such procedure. Appellant did not in the lower court, and does not now, complain that the witness was not recalled and his testimony heard on the disputed question, but the sole contention is that the court should have had the stenographer’s report of the evidence read to the jury.

We fail to see any material difference between the contention of the juror who sought by his affidavit to impeach and destroy his own verdict and that of the other jurors. Peche, the conductor of the car, testified that he gave one bell for a stop for a man to get off, and as the latter swung off the conductor gave two bells which meant that the car should go ahead, and then, when he saw appellee “get up and start right off,” he gave one bell to stop, and called to her to wait until the car stopped. He testified: “When I saw her get up to start out, I hollered to her to wait until the car stopped; just as I saw her start to get up I gave one bell, a signal to stop, and the motorman started to stop his car.” The juror swore that the disagreement was as to the number of bells or signals that had been given before the accident, and although he swore in his affidavit attached to the motion for new trial that he contended that one signal was given for the man to get off, two to start and another to stop before appellee left the car, and that the other eleven jurors had contended that the third signal was given as an emergency signal after appellee had fallen from the car. But, when he testified, he did not state that the other jurors contended that the last bell was sounded after appellee had fallen off, but merely that it was an emergency signal, which it doubtless was, if it was given as soon as the conductor saw that appellee intended to get off, whether she was in the car, on the step, or on the ground. The juror placed himself in an unenviable light when he swore that he agreed to the verdict because he “was- unable to substantiate his contentions to the other members of the jury.” It was shown by other testimony, as well as by that of the juror, that he wanted to get the testimony to convince the other jurors, and not to aid his own memory. The court did not err in refusing to permit the stenographer’s notes to go to the jury.

The fifth assignment of error assails the second paragraph of the charge of the court on the ground that it permitted the jury to find for appellee, even though the car from which appellee claimed to have fallen was still in motion, and had not stopped to discharge passengers. We fail to find any such intimation in the criticised charge, and appellant does not point it out. The charge presents the ground of negligence alleged in the petition, and made appellant’s liability turn on whether it negligently started the car with a jerk as appellee was in the act of alighting. In another portion of the charge the jury were clearly instructed that if appellee started to alight before the car came to a stop, and such attempt was negligent, to find for appellant.

The petition alleged that the jerk of the car was given at a time when the car had either stopped or nearly stopped when the jerk was given which threw appellee from the car. There was evidence to sustain each theory, and the court did not err in presenting both to the jury. If the car had stopped, and a sudden jerk was given which threw appellee to the ground, or if appellee was ready to get off when the moving ear came to a stop and was thrown to the ground by a jerk, appellant would be liable. In either event there were allegations and evidence to sustain a verdict against appellant. If the negligent jerk of the car threw appellee from the car and injured her, it was immaterial whether she attempted to alight while the ear was in motion or not. In neither case was appellant authorized to suddenly jerk the car and throw her off. The conductor knew that appellee was endeavoring to get off, and he signaled that knowledge to the motorman. The motorman testified that he heard the conductor say, “Wait a minute, lady, until the car stops.” He must have known that she was in a position of danger.

It is not negligence per se for a person to alight from a moving car, and, even though appellee may have attempted to alight from the car before it stopped, it was a question of fact for a jury to determine whether she was- guilty of negligence in attempting to alight.

In connection with that inquiry the jerking of the car was of much importance, in fact was the turning point in the case, and in view of the contention that all the witnesses to the accident contradicted ap-pellee it may be noted that not one of the witnesses contradicted her statement that there was a sudden jerk of the, car about the time appellee was thrown to the ground. The conductor to some extent corroborated the jerk theory when he testified: “The car was increasing its speed when she undertook to get off, he was releasing his brakes to go ahead when she was getting off—because the ear had never come to a stop.” It may be remarked that the testimony was somewhat peculiar in the face of the statement that the conductor had given the stop signal just as soon as lie saw her get np from her seat. Instead of releasing brakes, the motorman should have been applying them. It is true that the conductor tried to escape the effect of his statement in another part of his testimony, but it merely served to create a contradiction in his testimony.

The jury had the power and authority to discard the testimony of the other witnesses and credit that of appellant. Numbers of witnesses alone cannot create a preponderance in testimony. The evidence of one witness might be worth more than that of a score of other witnesses. It is by the weight and not by the number that witnesses are to be judged — “pondire, non numero.” Whatever may have been the rule in the past ages, a mere numerical preponderance in witnesses cannot control the decision of a court at this time. “In many cases a single witness, by the simplicity and clearness of his narrative, by the probability and consistency of the incidents he relates, by their agreement with other matters of fact too notorious to stand in need of testimony, a single witness (especially if situation and character be taken into account) will be enough to stamp conviction on the most reluctant mind. In other instances, a cloud of witnesses, though all were to the same fact, will be found wanting in the balance.” Ghamberlayne, Ev. § 991, note 2. The seventh, eighth, and ninth assignments of error are overruled.

Through the tenth assignment of error appellant claims that the verdict is excessive. The evidence showed that the fall from the car broke the last bone of appellee’s backbone, known as the coccyx, and it has never reunited. She also sustained an injury in her right side which caused a depression of her ribs. She was in bed for seven months, and for five months more could barely get around. She testified that she suffered in the back of her head and the end of her backbone, and had not been able to work except in a sitting position. She was earning from $50 to $60 a month, and was well and strong before she was hurt. We cannot hold a verdict in her favor for $4,750 excessive.

The judgment will be affirmed.

TALIAFERRO, J., did not sit in this case.


author: HARPER, J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§ 1097) — Appeal — Statement op Facts — Necessity.
    Defendant was convicted of forgery upon his confession, and thereafter a new trial was sought on the ground that he was mentally unsound; supporting affidavits being attached to the motion and evidence heard. Held, that the action of the court in overruling the motion could not be reviewed, where the evidence heard was. not presented by statement of facts; the affidavits attached to the motion not being considered as evidence, unless introduced as such when the motion is heard.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934. 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Andrew Wilson was convicted of forgery upon his confession, and from an order denying his motion for new trial, he appeals.
    Affirmed.
    G. T. Bartlett and H. A. O’Neal, both of Linden, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was, prosecuted, charged with forgery. He entered a plea of guilty, after being admonished by the court, as provided by law, as to the consequences of said plea, and his punishment was assessed by the jury at two years’ confinement in the state penitentiary.

A motion for new trial was filed, in which it was alleged that appellant was of unsound mind at the time he entered the plea of guilty, and some supporting affidavits are attached to the motion. It appears by the order of the court that evidence was heard on this issue, and the court overruled the motion. This evidence is not contained in the record before us, and, of course, we cannot pass on the question. After the adjournment of court, appellant filed a request that the time be extended in which to file this bill. Time was granted, and yet no bill containing the evidence has been prepared and filed — at least, none appears in the record. The motion was but a pleading in the case, and in and of itself proves no fact, and the affidavits attached thereto cannot be considered as evidence, unless introduced as evidence when the motion is heard. This being the condition of the record, there is no question presented to us for review.

The judgment is affirmed.


text:
    ELY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§§ 770, 784*) — Evidence—Instructions.
    Where there was no positive testimony of a sale of liquor in violation of the prohibition law, and there was positive testimony of a gift, and the state sought to overcome it by circumstantial evidence, the court must, on the request of the accused, submit the issues of sale or gift, and charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1806, 1883-1888, 1922, 1960; Dee. Dig. §§ 770, 784.*]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    W. S. Ely was convicted of violating the prohibition law, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

From a conviction for violating the prohibition law, appellant prosecutes an appeal to this court.

The first ground in the motion for new trial complains of the insufficiency of the testimony to sustain the conviction. We have read the testimony carefully, and think the facts would sustain the verdict. That Jim Thurman obtained a pint of whisky from W. S. Ely, appellant, is shown by the testimony of all the witnesses, both for the state and appellant; but Jim Thurman, the alleged purchaser, and appellant, both testify that it was a gift from appellant to him. So the only contested issue in the case is: Was it a sale or gift of the whisky? No witness testifies that they saw appellant deliver the whisky to Thurman, nor Thurman pay appellant any money or promise to pay him any; but the sheriff and constable testify to facts and circumstances which would authorize the finding that there was a delivery of the whisky, and circumstances which would authorize the jury to find that there was a sale. But this depends entirely upon circumstantial evidence, and must be deduced from the circumstances. Appellant admits delivery of the whisky to Thurman, but says it was a gift. As there is no, positive testimony of a sale, but there is positive testimony as to a gift, and the state sought to overcome this by circumstantial evidence, we think the court should have so instructed the jury upon the request of appellant.

The judgment is reversed, and the cause remanded.


text:
    RAY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Indictment and Information (§ 125)— Statutory Oeeenses — Joinder oe Oe-eenses.
    In a statutory misdemeanor ease the information may allege the offense to have been committed in all the ways named in the statute, though it may be better to divide the information into separate and distinct counts.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.]
    2. Criminal Law (§ 1097) — Appeal—Statement oe Facts — Motion eor New Trial-Review.
    Questions raised in the motion for new trial are not reviewable in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Orange County Court; O. R. Sholars, Judge.
    Turk Ray was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

In one count the information charges the offense denounced by article 557 of Code Cr. Proe. 1911 to have been committed in all the ways denounced therein, except there is no allegation that the betting was done at a gaming table or bank. It would have been better to have divided the information into separate and distinct counts, but in a misdemeanor we understand our decisions hold that an information may allege the offense to have been committed in all the ways named.

The information being sufficient, and no statement of facts accompanying the record, no question is raised in the motion for new trial we can review.

The judgment is affirmed.


text:
    BROWN et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Criminal Law (§ 885*) — Sentence — Suspended Sentence.
    Where the jury found that the present conviction of theft was accused’s first offense and recommended suspension of sentence, the trial court could not sentence accused to the penitentiary but must release him upon such recognizance as is provided by Acts 33d Leg. e. 7.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.*]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Roy Brown and another were convicted of theft, and, from a judgment sentencing them to the penitentiary they appeal.
    Remanded, with instructions.
    C. E. 'Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

In this case the appellants were prosecuted and convicted for theft and their punishment assessed at five years’ confinement in the penitentiary. The jury, however, in their verdict, under proper instructions from the court, find “that the defendants have never heretofore been convicted of a felony in this state or in any other state, and recommend a suspension of sentence by the court.” The court, however, ignored this portion of the verdict of the jury and sentenced them to the penitentiary. Recently in the case of Baker v. State, 158 S. W. 998, we had this question before us and held the court had no authority to pass sentence upon such a verdict under the law of this state. The sentence is a nullity because in violation of the statute, and this cause is remanded, with instructions to release the prisoners upon recognizance as is provided by chapter 7 of the Acts of the Thirty-Third Legislature. ⅜

Remanded, with instructions.


author: DAYIDSON, P. J.

text:
    HOOKS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Weapons (§ 11) — Right to Caret — Judge op Election — “Conservator of the Peace.”
    Tlie Terrell Election Law (Acts 29th Leg. [1st Called Sess.] c. 11) § 67, provides that the presiding officer of elections shall have the power of a district judge to enforce order and to keep the peace, and section 134 gives judges of primary elections the same authority to preserve order at elections, etc., as is conferred on judges of general election and gives them the power to compel the observance of the law and make arrests. Code Cr. Proc. 1911, art. 478, provides that the preceding article relating to carrying a pistol at election places shall not apply to peace officers or other persons authorized to carry arms at the places therein designated. Const, art. 5, § 12, makes all judges of courts conservators of the peace, and section 15 makes the county judge a conservator of the peace. Held, that the judges of the courts are conservators of the peace authorized to carry arms under the circumstances provided, and hence under the election law the presiding officer at an election would have power to carry a pistol.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dee. Dig. § 11.

    For other definitions, see Words and Phrases, vol. 2, pp. 1442-1443.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    J. B. Hooks was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    T. B. Coe and John L. Little, both of Kountze, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAYIDSON, P. J.

Appellant was convicted of carrying on and about his person a pistol.

It is deemed necessary to discuss only one question. There are two conceded and unquestioned facts in the record: First, that appellant had the pistol and exhibited it and fired it twice; second, that he was presiding officer of the election at the time and had the pistol at the polling place where he was holding the election. There is a contested issue in the testimony, to wit, that the party alleged to have been assaulted at the time, who was also at the place of holding the election and in the room, had made or was about to make an assault on appellant by drawing his knife on him. That witness, denied drawing his knife, but several witnesses testify that he did pull his knife out, and when he did appellant drew his pistol and fired and the other party left. The issue, 'however, upon which this case must depend for solution- is whether appellant had the right to have the pistol at the polling place; he being the presiding officer of the election. This matter is presented in several ways, and in such manner the question must be decided.

Under the law we are of the opinion the judgment should be reversed. By the terms of section 67 of what is known as the Terrell Election 'Law (Acts 29th Leg. [1st Called Sess.] c. 11), “the presiding judge of election while in the discharge of his duties as such, shall have the power of the district judge to enforce order and keep the peace.” By the terms of section 134 of the same law it is provided: “Judges of primary elections have the same authority and it shall be their duty to administer oaths, to preserve order at the election, to appoint special officers to enforce the observance of order and to make arrests as is conferred on judges of general elections. Such judges and officers shall compel the observance of the law * * * and shall arrest or cause to be arrested anyone,” etc. Article 477 of the Revised Criminal Statutes provides a punishment for carrying a pistol at and around election places during election hours. However, it is provided in the following article 478 that the same shall not apply to peace officers or other persons authorized or permitted by law to carry arms at the places therein designated. Article 5, § 12, of the Constitution, provides that “all judges of courts of this state shall, by virtue of their office, be conservators of the peace throughout the state.” Article 5, § 15, provides: “And there shall be elected in each county * * * a county judge, who * * * shall be a conservator of the peace.” Other provisions of the law might be cited, but these are cited to show that, under the provisions of the Constitution and the law, judges of the courts are conservators of the peace and authorized to carry arms for the purposes specified and stated in the law and the Constitution and under the circumstances therein mentioned. The Terrell Election Law clothes presiding officers of elections with the jiower of district judges, under such circumstances, as well as the judges of primary elections. It is deemed unnecessary to go into anything like an elaborate statement of these matters or to amplify or discuss them at length. In Jones v. State, 65 S. W. 92, this court, in an opinion by Judge Henderson, held that a judge was a conservator of the peace and a peace officer and entitled to carry a pistol. That opinion classified him as a peace officer. It is unquestionably the law, and that ease is cited without additional reasons.

Under quoted provisions of the law and the decision of Jones v. State, supra, appellant had the legal right to carry a pistol at the place of holding the election, as he was presiding officer. As to the merits of the controversy between him and the party at whom he shot, as to the right or wrong on the part of the contending parties in that difficulty, would make no difference. He had the right to have the pistol, and, if the party was undertaking to interfere with his duty as presiding judge or offlieer of that election, he may have had the right of self-defense, or the correctness of his action in that matter would not determine the fact that as presiding judge he had a right to carry the pistol any more than it would determine the right of the sheriff to carry a pistol if he was in the wrong in some personal difficulty in which he might use the pistol he was carrying. In that event the sheriff would not be violating the law in carrying the pistol, whatever might be the merits of the difficulty in which he engaged with the other party.

The facts introduced show that appellant was not violating the law in having the pistol at the time; therefore the judgment is reversed, and the cause is remanded.


author: DAVIDSON, P. J.

text:
    COWART v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Criminal Law (§ 673) — Reception op Evidence — Eppect op Admission — Limiting Eppect op Impeaciing Evidence.
    In a prosecution for the unlawful sale of a mortgaged chattel, where it was shown by the state, upon cross-examination of the defendant, that he had been indicted several times for embezzlement and the unlawful sale of mortgaged property, the evidence was not admissible as original evidence; and, when introduced for the purpose of impeachment, it was error for the court to refuse to limit the effect of the testimony to that purpose, upon proper request by the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    2. Chattel Mortgages (§ 234) — Sale op Mortgaged Property — Prosecution — INSTRUCTIONS.
    In a prosecution for the unlawful sale of a mortgaged chattel, where there was a conflict in the testimony as to the consent of the mortgagee to its sale by the defendant, it was error to refuse the defendant’s requested charge on that issue.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. § 495; Dec. Dig. § 234.]
    3. Criminal Law (§ 783) — Instructions— Limiting Eppect op Evidence.
    In a prosecution for the unlawful sale of a mortgaged chattel, where evidence was introduced tending to show that the mortgagee had given the defendant an order on the county clerk for the mortgage, which the mortgagee denied, it was error to charge the jury that the evidence could only be considered on the question of the defendant’s intention, since it was also competent as affecting the credibility of the mortgagee, and as tending to show his consent to the sale.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. § 783.]
    4. Witnesses (§ 361) — Evidence to Sustain Impeached Witness — Witness Accused op Crime — Explanation of Charges.
    Where one accused of a crime testified on cross-examination that he had been indicted several times before for embezzlement, he should be permitted to testify on redirect examination, without going into details, that the indictments had all been dismissed, and that he was not guilty of the charges, especially where the statute provides that the defendant has a right to explain any act or circumstances introduced against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167-1175; Dec. Dig. § 361.]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    A. M. Cowart was convicted of the unlawful sale of a mortgaged chattel, and he appeals.
    Reversed and remanded.
    See, also, 145 S. W. 341.
    Mays & Mays and Frank R. Graves, all of Ft. Worth, and W. F. Ramsey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

This is the second appeal. There are several grounds suggested by appellant for revision. Appellant gave a mortgage on April 14, 1908, to A. L. Lock-man on two mules, a wagon and harness, and the mare set out in the indictment. The indictment is predicated upon the sale of the mare in violation of the terms of the mortgage, charging intent to defraud Lockman. The mare was sold to A. W. Parker. Appellant testified he had Lockman’s consent to dispose of the mare. After the mare was sold to Parker, there was a question raised about the matter, and Parker returned the mare to appellant. She subsequently died. Lockman denied having given appellant his consent to sell the mare. On this issue the testimony is in conflict.

Appellant took the stand and testified in his own behalf. On cross-examination by the state he was asked with reference to several charges of -embezzlement preferred against him in Tarrant county, and also if he had been indicted in Johnson county three times on charges of unlawfully disposing of mortgaged property, one of which was this particular case. This testimony was not admissible under the facts of this case as original evidence. It had no connection with this case, except the one set out in this indictment ; and, of course, they could not introduce the indictment in this case against him, because he was being tried for this particular violation. On this question the law is well settled that, where evidence of extraneous crimes is admissible, it is always for some particular purpose, to show intent, to develop the res geste, etc., and when evidence of this character is admitted for that purpose, it is the duty of the court to limit to the particular purpose for which the evidence is introduced; but, as we understand the case here, this testimony was admitted for the purpose of impeachment. The objection was timely saved and presented to the error of the court in refusing to limit this testimony. This has been so long and thoroughly settled we deem it unnecessary to cite cases in support of the correctness of appellant’s proposition. The court did not limit the testimony, and for this error the judgment will have to be reversed.

It was an issue sharply drawn by the testimony that appellant had the consent of Lockman to sell the mare. Lockman denied this, but the defendant introduced evidence to the effect that Lockman did give him his consent. Appellant raised this question by asking a special charge, which the court refused, and also by objection to the court’s charge for failing to charge on this issue. This, of course, was error. Authorities are not necessary to cite on this proposition.

Evidence was introduced showing that Lockman had given appellant an order to the county clerk to turn over the mortgage in which this mare, is included, and the clerk did turn it over to appellant. Lockman denied signing this order, yet Lockman’s attorney testified that Lockman did sign it and that he witnessed the signature. On this issue the court charged the jury at the request of the county attorney: “You are instructed that, even though you believe from the evidence that the witness A. L. Lockman did sign the order dated 6/21/1908, same would not be any defense in this case, but said evidence can only be considered by you for what it may be worth in showing the intent of the defendant in the transaction in question.” Various objections were urged to this charge: That it was on the weight of evidence; that the evidence affected the credibility of Lock-man, and should not have been withdrawn from the jury for that purpose, and the evidence had a direct bearing upon the question as to whether Lockman did or did not consent to defendant selling the mare, or at least, after he had knowledge of the sale, ratify the same and adjust the matter with the defendant. It is contended the court should have allowed this evidence to go to the jury unfettered by any restrictive charges qualifying it. We are of opinion appellant’s contention is correct. It might not have been within and of itself a defense in the case, but it did affect the standing of Lockman as a witness under the facts, and it was giving to the particular evidence an office and mission in the charge to the jury which was not justified by the law. It bore also upon the question of consent.

Defendant testified in his own behalf. On cross-examination the county attorney asked defendant if he had not been charged in Tarrant county with embezzlement. This issue was not elicited by defendant in his direct examination. The defendant was required, over his objection, to state that he had been charged five times in Tarrant county with embezzlement. It is further recited in the bill that when said offenses were proved as aforesaid, upon redirect examination of the defendant, he was asked by his counsel to explain to the jury said charges of embezzlement, what became of the cases, how they came about, and whether or not he was guilty of said charges. To this the county attorney objected, and the objection was sustained, and defendant was not permitted to answer or explain to the jury how the charges came about, etc. Defendant excepted because the charges had been proved against him by the state, without being elicited by defendant, and that unless the same was allowed to be explained to the jury, it would prejudice the rights of defendant before the jury and leave the impression upon them that he was an embezzler, that if permitted to explain the same, he could show to the jury that said charges were groundless, and that he was absolutely innocent of any such charges; and further that if the witness had been permitted to answer said question, he would then and there testify to the effect that said charges were filed against him at Ft. Worth, on account of the fact that he had been working for Shaw Bros, in the ice business, and that defendant was the driver of one of the wagons, that a good many of his customers requested defendant that when their ice books gave out to receipt for them another one, that defendant frequently did so, and that defendant accounted to them for all money so received by him, and that when such facts were inquired of by the county attorney’s office at Ft. Worth, the charges were all dismissed against him, and that he was not in anywise guilty of the said charges so filed against him; that if said defendant had been permitted to answer said propounded question he would then and there, have testified to the effect and fully as above stated, but to which action of the court appellant excepted. The court refused to permit him to so testify. The court signs this bill of exceptions with this qualification: “The question, being propounded by the county attorney without objection of defendant, was admitted; but, when reopened by defendant’s attorney, same was then objected to by state’s attorney for reasons then assigned and by the court sustained. With this explanation same is approved.” The qualification intensifies the error. When the county attorney proved the fact that appellant had been indicted for embezzlement, appellant had the right to explain, at least, in a general way to show the cases amounted to nothing, and that he was never tried or convicted upon them, and that they were dismissed. He may not go into details of the transactions. This seems to be axiomatic. It is a fundamental proposition, not only of law, but of justice and right, that wherever a man is charged with a dereliction he has a right to explain it by any legitimate available testimony. Not only so, but in Texas it has been fully so declared by statutory enactment. Whenever an act or any circumstance has been introduced against a defendant, he has the right to explain, by any act or circumstance which is res gestas, or part of it, or incident to the matter or growing out of it, that the act was not criminal, and thus avoid the bad effect of it before the jury.

There are other bills of exception along the same line which we deem unnecessary to discuss. The trial court will understand from what has been said that wherever a matter is introduced by the state to be detrimental to appellant, ineriminative in its nature, or attacking the credibility of the defendant as a witness, he has a right to meet and explain it to the jury, to show that he was not what the state undertook to show him to be.

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


text:
    PENDLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Criminal Law (§ 792) — Instructions— Principal or Accessory.
    In a prosecution for hog theft, the owner testified that he found that his hogs had disappeared and had been tolled away by corn by two and possibly three persons, and followed the tracks some distance in the direction where accused and others lived, and, failing to find the hogs, procured a search warrant, and investigated the houses of several people living in the neighborhood, and in three or four places found fresh hog meat correspondin'” in size to his own hogs. Accused denied that he had taken the hogs, or that he was where the hogs were taken, and gave evidence that he worked on a certain house on a chimney until about noon, when, the work having stopped, he and others killed twP of his own hogs, and sold some of them to his neighbors. Held, that the evidence required a charge on principals and accomplices or accessories, and on the question whether accused was merely the receiver of stolen property, so as to prevent his conviction as a principal.
    [Ed. Note. — Eor other cases, See Criminal Law, Cent. Dig. &§ 1818-1820; Dec. Dig. § 792.]
    2. Criminal Law (§ 775) — Instructions— Alibi.
    The evidence required an instruction on alibi.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. § 775.]
    3. Larceny (§ 27) — Parties to Offenses— ‘ ‘Principal’ ‘ ‘Accomplice.”
    In order to be a principal, accused must be connected with the original taking; and if he was not present at the time of the theft, but advised it and the hogs were taken pursuant to his advice, he would by the express terms of the statute be an accomplice.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§, 55-57; Dec. Dig. § 27.

    For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 6, pp. 5552-5557; vol. 8, pp. 7561, 7763.]
    4. Larceny (§ 27) — Parties to Offense — Principal.
    If accused knew that hogs were stolen by others and received the property, he could not be convicted as a principal.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 55-57; Dee. Dig. § 27.]
    Appeal from District Court, Bowie County ; P. A. Turner, Judge.
    Bud Pendley was convicted of bog theft, and appeals.
    Reversed and remanded.
    Mahaffey, .Thomas & Hughes, of Texar-kana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of hog theft; his punishment being assessed at two years’ confinement in the penitentiary.

The state’s contention is that J. E. Ketch-am, the alleged owner, lost two hogs, and the circumstances pointed to appellant and others as having taken them. Ketcham testifies he had some hogs running in the bottom; they disappeared. In looking for them, he says, he found where two hogs had been driven or “tolled” by two parties, possibly there may have been a third party. He says the means by which the hogs were “tolled” was corn. He followed these tracks for some distance, and in the direction of where appellant and others lived. Failing to find his hogs, he procured a search warrant, and investigated the houses of several people living in that neighborhood, and in three or four of these places he found fresh hog meat, which he says would correspond in size to his missing hogs. This is the substance of the state’s case. Appellant denied, with reference to the matter, that he had taken Ketcham’s hogs; that he was not where the hogs were taken. In other words, he proved a complete alibi. He further proved that he worked at a certain house on a chimney until about noon or a little later, and for stated reasons, which are unnecessary here to repeat, the work ceased, and he, and others assisting, killed two of his own hogs, selling some of it to his neighbors and those who assisted him. In this way he accounts for the meat found in his and his neighbors’ houses. The case for the state is one of circumstantial evidence, based upon the facts above stated. Without going into a detailed statement of the evidence further, the above is made to review the questions presented in reference to the charge of the court.

The court, in a general way, informed the jury that, if they believed appellant took the hogs of Ketcham under circumstances which constitute theft, he would be guilty, and in this connection charged on circumstantial evidence. The court did not charge the law applicable to the case as to principals or alibi, nor did he instruct the jury in affirmative terms that, if appellant was not present at the time of the taking of the animals so as to constitute him a principal in the taking, he would not be guilty; nor did he charge the jury that if he was only an accomplice or an accessory, or a receiver of the stolen property, he could not be convicted as a principal. These matters were all raised by tbe evidence, and enough of tbe testimony bas been stated to bring to tbe mind of tbe court tbe fact that these questions were all in tbe case.

Appellant, in order to be a principal, must be connected with tbe original taking so as to constitute him a principal under tbe statute; otherwise be could not be convicted under this indictment. If be was not present, but advised tbe theft of tbe bogs, and they were taken in pursuance of bis advice, be would be an accomplice by express terms of tbe statute.

If after tbe bogs were stolen, and be knew them to be stolen, be received tbe property, in either event be could not be convicted under this indictment which charged him as tbe principal. This question has been so thoroughly reviewed in so many opinions it is deemed unnecessary to cite cases, but tbe matter underwent thorough investigation in tbe recent case of Menefee v. State, 149 S. W. 188, and in tbe case of Sam Kaufmañ v. State, 159 S. W. 58, decided at the present term on motion for rehearing in an opinion by Judge Prendergast. Appellant having availed himself in a timely manner of these defects in tbe charge and tbe court’s failure to apply tbe law to tbe ease entitles, him to a reversal of tbe judgment.

Tbe judgment is reversed, and tbe cause is remanded.


text:
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Ckiminal Law (| 1094) — Appeai>-Record.
    A conviction, though based on conflicting evidence, must be affirmed, where there were no bills of exception and there was no complaint of the charges given,, and no charges were requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dee. Dig. § 1094.]
    Appeal from District Court, Armstrong County; James N. Browning, Judge.
    T. S. Mitchell was convicted of aggravated assault, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.

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

   HARPER, J.

Appellant was indicted by tbe grand jury of Potter county charged with assault to murder. Tbe venue was changed to Armstrong county, and when tried appellant was convicted of aggravated assault, and his punishment assessed at a fine of $500 and imprisonment in tbe county jail for one year.

Tbe evidence is uncontradicted that appellant shot at one W. E. Brown three times, be claiming that Brown bad killed bis brother, and, when. be first saw Brown, Brown threw bis band to bis hip pocket like he was going to draw a pistol, when be, appellant, fired, and continued to shoot until Brown got out of sight. Tbe court not only charged tbe jury on assault to murder and aggravated assault, but submitted tbe issue of self-defense in a way not complained of by appellant.

While tbe evidence was conflicting, tbe testimony offered in behalf of tbe state will support tbe verdict; and there being no bills of exception and no charges requested, and no complaint of the charge as given, tbe judgment will be affirmed.


text:
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Criminal Law (§ 1090*) — Appeal — Statement op Facts — Bill op Exceptions — Review.
    In the absence of a statement of facts or bill of exceptions, the denial of a motion for new trial for want of evidence to support a conviction cannot be revised on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.
    D. M. Brown was convicted of crime, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State,
   DAVIDSON, P. J.

This record is before us without any statement of facts or bill of exceptions. Tbe case was submitted to tbe court; a jury being waived by appellant. Tbe only ground of the motion for new trial is tbe want of sufficient evidence to support tbe judgment. There is nothing in this to revise.

Tbe judgment will therefore be affirmed.


text:
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Homicibe (§, 307*) — Trial — Instructions — Aggravated Assault.
    Where defendant showed that deceased was misconducting himself at a social function at defendant’s residence, and that, under the impulse of the moment, he struck deceased on the head with a stick without intent to kill him, and where it was not shown that the stick was a deadly weapon, the failure to charge on aggravated assault on defendant’s theory of the case was reversible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.*]
    Appeal from District Court, Waller County ; Sami. J. Styles, Judge.
    Amos Mitchell was convicted of manslaughter, and be appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Tbe only bill of exceptions in tbe record was reserved to tbe action of tbe court overruling tbe motion for new trial. This does not add any strength to grounds of tbe motion. It is simply an exception to tbe action of tbe court in not. sustaining tbe grounds of tbe motion.

Tbe evidence, in brief, discloses that deceased, Lewis Wade, was struck on tbe bead by tbe defendant with a stick of wood from wbicb lick be died. Tbe evidence is such that tbe two wounds may bave been caused by tbe same blow, and it shows tbe skull was crushed or broken. There is evidence also that tbe first lick struck by appellant broke Wade’s arm, wbicb be threw up to ward off tbe blow, and with tbe remainder of tbe stick of wood deceased was struck on tbe bead. Tbe state makes a case wbicb would warrant conviction. Tbe defendant introduced evidence to tbe effect that be acted under tbe impulse of the moment growing out of a quarrel on account of misconduct of deceased at bis, appellant’s, residence. There was a social function at appellant’s residence at tbe time, and tbe defensive evidence is to tbe effect that deceased was misbehaving himself, out of which grew tbe difficulty. Deceased bad left tbe bouse, and was in tbe yard at the time be was struck. Appellant introduced testimony wbicb tends to show self-defense. The court charged on murder in both degrees, manslaughter, and self-defense, tbe jury asssessing a penalty of three and one-balf years for manslaughter. Appellant testified that when be struck deceased it was with no intent to kill him and be bad no purpose to kill. This was bis theory of the case. The court failed to charge tbe jury with reference to this phase of appellant’s testimony as well as on the issue of aggravated assault. There is no evidence in the record to show tbe size or weight of tbe stick, or that it was a deadly weapon, outside of tbe mentioned fact wbicb was tbe blow inflicted did break his skull, producing death. We are of tbe opinion tbe court should bave charged the jury on appellant’s theory of tbe matter, that inasmuch as there was no evidence that tbe weapon used was a deadly one, and no testimony introduced as to its size or weight, and in view of tbe fact that be testified be bad no purpose or intent to kill deceased, that these matters should have been charged to the jury in order they might pass upon bis side of tbe case. Tbe jury, of course, in acquitting of murder eliminated any question of malice, and decided it was a voluntary killing under adequate cause and sudden passion. Had tbe killing been intentional and voluntary and with a deadly weapon, tbe verdict of tbe jury would be warranted. But his testimony suggested be did not intend to kill, and tbe state failed to prove a deadly weapon, and all tbe facts show a sudden difficulty.

On account of tbe matters above stated, we are of opinion the court erred in not charging with reference to specific intent and aggravated assault, for wbicb reason tbe judgment is reversed, and tbe cause is remanded.


author: PRENDERGAST, J.

text:
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Criminal Law (§ 1064) — Appeal—Reservation of Grounds of Review — Motion foe New Trial.
    A motion for a new trial in a homicide case on the ground that the verdict was contrary to the law and the testimony, that the court failed to charge all the law of self-defense, to charge as to defendant’s knowledge of deceased’s character and disposition from what occurred just prior to the killing, as to deceased’s threats and condition, the proof showing him to be boisterous and under the influence of liquor, and that he followed up defendant and renewed the difficulty, or to charge with regard to deceased’s taking defendant’s money without his consent, and because of newly discovered evidence, was too general to present any question for consideration on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. '§§ 2676-2684; Dec. Dig. § 1064.] • '
    2. Homicide (§ 300) — Instructions—1Conformity to Evidence.
    On a trial for homicide, the failure to charge as to defendant’s knowledge of deceased’s character and disposition was not error, where there was nothing in the evidence calling for such charge.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Homicide (§ 300) — Instructions—Conformity to Evidence.
    On a trial for homicide, the failure to charge as to threats by deceased was not error, where no threats were shown by the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §| 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Homicide (§ 300) — Instructions—Conformity to Evidence.
    On a trial for homicide, where, although the evidence showed that deceased was drunk and somewhat boisterous, no occasion for killing him on that account appeared, it was not error to fail to charge relative to his condition.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    5. Homicide (§ 300) — Instructions—Conformity to Evidence.
    On a trial for homicide, where accused’s only defense was self-defense, and he claimed no defense because of deceased’s taking his money some minutes before the killing, the failure to charge relative to the taking of such money was not error.
    [Ed.- Note. — For other eases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Waller County; Sami. J. Styles, Judge.
    Dick Jackson, Jr., was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.

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

   PRENDERGAST, J.

From a conviction of manslaughter this appeal is prosecuted.

There is no bill of exception in the record other than to the overruling of appellant’s motion for new trial.

In his motion for new trial he claims (1) the verdict is contrary to the law and the testimony; (2) the court failed to charge all the law of self-defense; (3) the court erred in failing to charge as to the defendant’s knowledge of the deceased’s character and disposition of the deceased from what occurred just prior to the killing; (4) because of newly discovered evidence; (5) the court failed to charge as to threats and condition of the deceased, the proof showing him to be boisterous and under influence of liquor and of following defendant up in the nighttime and renewing the difficulty; (6) the court failed to instruct the jury on deceased taking defendant’s money without .consent of defendant.

Under the uniform decisions of this court, all these complaints are too general to require the court to consider them. They point out no specific error. .

The evidence is amply sufficient to not only sustain the conviction for manslaughter, but of a higher .offense. No error is pointed out in the complaint that the court failed to charge all of the law of self-defense. Nothing in the evidence called for a charge by the court as to defendant’s knowledge of deceased’s character and disposition. No newly discovered evidence whatever is contained in the record. No threats are shown to have been made by deceased against appellant at any time. It does show that he was drunk and somewhat boisterous as well as others, but nothing of that kind gave the appellant the right to kill him or showed any occasion therefor on that account. What' charge appellant wanted on deceased taking appellant’s money without his consent is not' pointed out. Whatever of this occurred was some minutes before the killing, and not any defense or claimed defense on that account. Appellant’s only defense was self-defense. The great preponderance of the evidence was against him on this issue. The court submitted the question to the jury, and they found against him on that account.

No error is showD in the record, and the judgment will be affirmed.


text:
    SCOTT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, June 27, 1913.)
    On Motion for Rehearing.
    1. CRIMINAL Law (§ 1110) — Appeal—Amendment op Record — Statement op Facts.
    Where, owing to confusion incident to the separation of the offices of district and county clerk, the bills of exception and statement of facts taken by accused were left in the office of the county clerk and so were not copied in the transcript, a subsequent transcript containing them, certified by the district clerk, will be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2568; Dec. Dig. § 1110.]
    2. Inpants (§ 66) — Criminal Liability — Discretion.
    Under Pen. Code 1911, art. 34, providing that no person shall be convicted of any offense committed between the ages of 9 and 13 unless it shall appear that he had discretion sufficient to understand the nature and illegality of the act constituting the offense, it is not sufficient that a minor of 12 years of age, accused of forgery, knew the difference between good and evil, or that he had the intelligence of ordinary boys of Ms age, but it must be shown that he understood the nature and illegality of the particular act constituting the offense.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    3. Inpants (§ 66) — Capacity to Commit Crime — Discretion—Evidence.
    Direct evidence is not necessary to show that an infant between 9 and 13, accused of an offense, had discretion sufficient to understand the nature of the offense.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    4. Inpants (§ 66) — Capacity to Commit Crime — Burden op Proof.
    Nonage must first be proved by the accused ; but, when the accused shows that he is between 9 and 13 years of age, the state has the burden of proving discretion.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dee. Dig. § 66.]
    Appeal from District Court, Orange County ; W. B. Powell, Judge.
    Jim Scott was convicted of forgery, and he appeals.
    Reversed and remanded.
    Bisland & Adams, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of forgery, and his punishment assessed at two years’ confinement in the reformatory at Gatesville. No statement of facts nor bills of exception accompanying the record, there is no ground presented in the motion for a new trial that we can review.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed, containing_ neither a statement of facts, nor any bills of exception. Appellant has filed a motion for a rehearing, and accompanies the same with a certified copy of a statement of facts, and a record containing several bills of exceptions. The clerk certifies to the statement of facts and the record in a proper way, and appellant asks to be permitted to substitute them for the record heretofore filed. It appears that prior to the last election the offices of district and county clerk were held by the same man, but at that election the offices were separated. In the division of papers in some way the statement of facts and bills of exceptions in this ease were left in the vault of the county clerk’s office, and in making out the original transcript filed in this court the clerk of the district court made a copy of the records only in his office, and in this way the statement of facts and bills of exceptions were omitted. Mr. Bisland, the attorney for appellant, when this case was affirmed, searched for the papers, and found them in the county clerk’s vault, and delivered them to the district clerk, who has, as before stated, made out an entirely new transcript properly certifying thereto, and it is therefore unnecessary to issue a writ of certi-orari, but we can and will consider the record as thus certified to us. As before stated, there are several bills of exception, but we do not deem it necessary to notice but one of them.

Appellant was charged with forgery. On the trial his mother testified he was only 12 years old. There is no other testimony in the record as to his age. Article 34 of the Penal Code provides: “No person shall in any ease be convicted of any offense committed before he was of the age of nine years, * * * nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” This question has been frequently before this court, and it has been held: “It is not sufficient that the minor knows the difference between good and evil, nor that he had the intelligence of ordinary boys of his age. The statutory discretion requires that he should know the nature and illegality of the particular act constituting the offense. Wusnig v. State, 33 Tex. 651; Parker v. State, 20 Tex. App. 451; Gardiner v. State, 33 Tex. 692; Carr v. State, 24 Tex. App. 562 [7 S. W. 328, 5 Am. St. Rep. 905]; Linhart v. State, 33 Tex. Cr. R. 504 [27 S. W. 260]; Keith v. State, 33 Tex. Cr. R. 341 [26 S. W. 412]. Discretion is not required to be proved by direct and positive testimony. ‘But circumstances of education, habits of life, general character, moral and religious instruction, and often circumstances connected with the offense charged, may, in most instances, be proved, so as to convince an intelligent jury whether or not the defendant had the discretion required by the statute.’ Wusnig v. State, 33 Tex. 651; Carr v. State, 24 Tex. App. 562 [7 S. W. 328, 5 Am. St. Rep. 905]. Nonage must first be proved by defendant. McDaniel v. State, 5 Tex. App. 475; Ake v. State, 6 Tex. App. 398 [32 Am. Rep. 586]. Where the defense shows the age between 9 and 13 years, then the burden of proof is on the state to prove the discretion. Wusnig v. State, 33 Tex. 651.”

When appellant proved that he was under the age of 13, then the burden was upon the state to show that he had sufficient discretion to understand the illegality of the act. On this issue the state offered no proof; consequently the judgment cannot be permitted to stand.

The motion for rehearing is granted, and the judgment reversed and cause remanded.


text:
    MITCHELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Criminal Law (§ 1092) — Denial oe Change op Venue — Bill op Exceptions— Time for Presentation.
    The bill of exceptions complaining of the denial of a change of venue must be filed during term time, or the ruling is not reviewable.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.]
    2. Intoxicating Liquors (§ 31) — Local Option Elections — Statutory Provisions.
    An election under the local option law in three of the four precincts of a county is not an election for the whole county, though the Fourth precinct has only a few voters in it, and the fact that an election for the whole county was held less than two years before the election in the three precincts does not invalidate the last election.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 31.]
    3. Intoxicating Liquors (§ 242) — Punishment — Excessive Punishment.
    Punishment of two years in the peniten-tiaiy on conviction for selling liquor in violation of the prohibition law is not excessive, where the statute authorizes confinement in the penitentiary for not less than one nor more than three years.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 356-361; Dec. Dig. § 242.]
    4. Criminal Law (§ 822) — Instructions — Construction.
    The court in determining the correctness of a paragraph of the charge must consider the charge as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    5. Criminal Law (§ 789) — Instructions — Reasonable Doubt.
    A charge which requires the jury to affirmatively believe beyond a reasonable doubt all the facts necessary to show accused’s guilt before they can find him guilty, and which gives a complete charge on reasonable doubt, telling the jury that the accused is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and that, if the jury has a reasonable doubt as to guilt, they must acquit him, sufficiently charges on reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Perry Mitchell was convicted of criminally selling intoxicating liquor, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted for unlawfully selling intoxicating liquor in precinct No. 1 of said county, after prohibition had been adopted, properly declared, and published in November, 1911, and his penalty fixed at two years in the penitentiary.

The term of court at which he was convicted convened on January 13, 1913, and adjourned April 5, 1913. By law, as well as in fact, the court could be held and was held that term longer than eight weeks. The motion for new trial was overruled, and notice of appeal given on January 28, 1913. Appellant made a motion to change the venue, which was properly resisted by the state. The court heard evidence thereon, and overruled the motion. The bill presenting this question was hot filed until May 17, 1913, 109 days after the motion for new trial was overruled. Our statute requires that bills of- exceptions presenting the question of change of venue must be filed during term time. The decisions uniformly follow the statute. Under no circumstances can we consider the question of the change of venue.

The unlawful sale of intoxicating liquors charged in the indictment was testified to positively and clearly by two witnesses. Appellant testified denying making the sale. He also had testimony which, if believed, might have been sufficient to establish an alibi. These questions were properly submitted by the court to the jury and all found against appellant. The evidence was amply sufficient to sustain the finding.

The petition for an election to prohibit the sale of intoxicating liquors in precinct No. 1 of Potter county; also the order of the court thereon granting the petition and ordering the election to be held in September, 1911; also the order of the court showing that such election was held on the date fixed by the commissioners’ court; also the order of the court showing that at the proper time they canvassed the returns, and they showed, and so declared by the court, that prohibition carried in said precinct; and the order 'for the publication and the proper certificate showing the publication of said order putting said prohibition in force, were all introduced in evidence and clearly, established that by said election, orders of the commissioners’ court and publication, prohibition in ■said precinct was in effect some months before this sale was alleged to have been made. So that there can be no question under the law that prohibition prohibiting the sale of intoxicating liquors in said precinct was in force at the time of the alleged sale, and that prohibition was adopted after the statute making such sale a felony was in full force and effect. It appears that at the same time the commissioners’ court ordered said election it, in independent and separate orders, ordered a like election in two other precincts of the county on their own motion without any petition. This could not and would not affect the election and result in said precinct No. 1 whatever the result in either or both of the other precincts.

The county was divided into four precincts, and no election was ordered in one of the precincts at that time. Appellant’s contention that the other precinct had only a few voters in it could not and would not make the election for said three precincts the whole of the county. So that appellant’s contention that the election for three of the precincts at the same time was in effect an election for the whole county cannot be sustained. The fact that an election for the whole county was held less than two years before this election was ordered does not affect or render invalid this election for precinct No. 1. Our statute expressly declares that an election for any subdivision of a county may be ordered and held and prohibition adopted therein within two years, notwithstanding an election for the whole county had been held and prohibition defeated within two years.

The Legislature having fixed the penalty for a violation of this law at confinement in the penitentiary not less than one nor more than three years, which it had the exclusive right to do, the penalty of two years in this case is not, and cannot be, excessive.

The court’s charge on alibi, taken as a whole, did not assume and could not have been so considered by the jury as assuming that the offense had been committed. Not only that, but the charge, taken as a whole, which must be done when any particular paragraph is assailed, excludes any such assumption by the court, but the court submitted the questions properly to the jury for a finding. Neither did the court err in the paragraph of the charge submitting the case to the jury for a finding on its merits in not adding thereto, as contended by appellant, that unless the jury did so believe beyond a reasonable doubt to acquit him. The charge required the jury to affirmatively believe beyond a reasonable doubt all the facts necessary to show his guilt before they could find him guilty and correctly gave a complete charge as prescribed by the statute on reasonable doubt, telling the jury the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and, if you have a reasonable doubt as to the guilt of defendant, you will acquit him.

No error in the record being pointed out by appellant, the judgment is affirmed.


text:
    WALLER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Criminal Law (§ 1097*) —Appeal — Statement of Pacts — Motion for New Trial.
    Questions raised by motion for new trial cannot be considered in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from Montague County Court; A. W. Ritchie, Judge.
    J. P. Waller was convicted of an aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was charged, tried, and convicted of an aggravated assault. There is neither a statement of facts or any bill of exception in the record. No question is raised by the motion for new trial which we can consider in the absence of a statement of facts.

The judgment is therefore affirmed.


text:
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    Criminal Law (§ 885*) — Punishment— Suspended Sentence — Power of Court.
    Where the jury found that accused had never before been convicted, and specifically recommended a suspension of his sentence, the trial court cannot sentence him to the penitentiary, but must heed the recommendation of the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.*]
    Appeal from Cl'iminal District Court, Harris County; C. W. Robinson, Judge.
    F. T. Martin was convicted of burglary. From a judgment sentencing him to the penitentiary, he appeals.
    Remanded, with instructions to suspend sentence.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at four years.

The matters set forth in the suspended sentence act of the Legislature were properly submitted by the court to the jury. They found all these issues in favor of appellant. The court, however, declined to suspend the sentence, although the jury specifically recommended it. On account of this error of the court, this case will be remanded to the criminal district court of Harris county, with instructions to enter suspension of sentence in accordance with the finding of the jury. This case is in the same attitude as the recent case of Baker v. State, 158 S. W. 998, from the same county, the opinion in which was delivered by Judge Harper. This judge will follow the directions and instructions therein set out.

The cause is remanded to the criminal district court of Harris county, with instructions to render the judgment in accordance with the finding of the jury.