text:
    COZBY v. STATE.
    (No. 4288.)

    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.)
    1. PEBJUEY @=34(4) — SUFFICIENCY OF EVIDENCE — Corroboration. .
    In a prosecution for perjury based on defendant’s sworn false statement before the grand jury in a criminal investigation, evidence held to meet the statute, in that one witness, whom the jury expressly found was a credible witness, testified positively that defendant’s testimony before the grand jury was false, and that such witness was strongly corroborated by other evidence, so that the court did not err in refusing his peremptory instruction for acquittal.
    [Ed. Note. — For other .cases,' see Perjury, Cent. Dig. §§ 129, 132; Dec. Dig. @=34(4).]
    2. Cbiminal Daw @=829(1) — Tbial — Requested Instbuction — Given Instbuction.
    Defendant’s special charge was properly refused, where it was completely covered by the court’s charge.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=829(1).]
    3. Cbiminal Law @=814(10) — Instbuction— Evidence to Suppoet.
    In a prosecution for perjury based upon defendant’s false testimony before the grand jury in its investigation of a charge of rape against another, where there was no evidence that defendant, though drunk, made the alleged false statement by mistake, and the evidence showed that the statement was made deliberately, an instruction that if when he made the statement his memory was so impaired by alcohol as to render him incapable of remembering the real facts, he should be acquitted was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1979, 1981; Dec. Dig. @=814(10).]
    4. Pebjuey @=32(3, 4) — Evidence—Identity of Cause.
    The complaint against such other charging him with rape, the warrant for his arrest and his bond for his appearance before the grand jury were admissible to identify the cause the grand jury had under investigation, and to show the jurisdiction of the grand jury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 110, 111; Dec. Dig. <§=32(3, 4).]
    5. Witnesses @=396(2) — Impeachment—Fob-mee Testimony.
    In a prosecution for perjury, where defendant sought to impeach a state’s witness by showing that she had made a statement before trial different from that made on the trial, the court properly permitted the state to introduce her testimony on the examining trial to the same effect.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1263; Dec. Dig. @=396(2).]
    6. Couets <©=116 — Recobds — Amendment — POWEE OF COUBT.
    Where an indictment for perjury was tried during the term at which the indictment was preferred, the court committed no error in requiring the clerk to enter his order appointing a foreman of the grand jury, since the minutes of the court were in the control of the trial judge during the whole term.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 367; Dec. Dig. @=115.]
    7. Pebjuey @=32(1) — Evidence — Ciecum-STANCES.
    In a prosecution for perjury based on defendant’s testimony before the grand jury in its investigation of a charge against another for rape, evidence that if prosecutrix had come to the house where the alleged rape was committed, defendant would have seen her, was admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 108; Dec. Dig. @=32(1).]
    8. Cbiminal Law @=656(1) — Teial—Remark or Couet.
    The court’s remark that prosecutrix would know whether defendant knew her or not, made when defendant was. objecting to her testimony to that fact, was not error, and where she and defendant both testified that he knew her at that time and before.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524, 1527, 1528; Dec. Dig. <§=656(1).]
    9. Pebjuey @=32(1) — Evidence. Testimony of prosecutrix that she was afraid
    of the party indicted for the rape, and testimony of her father as to. what defendant said to him and he to defendant in the hearing of the defendant in the rape case about why he had a gun and what he was going to kill with it, was admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 108; Dec. Dig. @=32(1).]
    10. Cbiminal Law @=1169(2) — Haemless Ee-eoe — Admission of Evidence.
    Where there was no dispute or controversy as to the age of the prosecutrix in the rape case, and where she testified before the grand jury, which could judge of her age, error, if any, in the admission of the record of her birth from a page torn from her parents’ Bible was harmless.
    [Ed.' Note. — For other cases, see 'Criminal Law, Cent. Dig. § 3138; Dec. Dig. @=1169(2).]
    11. Witnesses @=277(2) — Cboss-Examination — Scope.
    The cross-examination of defendant as to approaching a witness against him and as to what he said to such witness was proper.
    [Ed. Note. — For other cases, see . Witnesses, Cent. Dig. § 980; Dec. Dig. @=277(2).]
    12. Cbiminal Law @=1099(1) — Appeal — Statement of Facts.
    When the parties failed to agree on the statement of facts, it was the court’s duty to make a statement of facts on the point of difference speak the truth.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2868, 2874; Dec. Dig. @=1099(1).]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    J. E. Cozby was convicted of, perjury, and he appeals.
    Affirmed.
    Pittman & Taylor, of Stephenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

      Reh'earing denied December 13, 1916.

   PRENDERGAST, P. J.

Appellant was convicted of perjury and assessed the lowest punishment.

Appellant’s able attorneys earnestly insist that the evidence was insufficient to sustain the verdict, and that his charges should have been given, peremptorily requiring the jury to acquit him, because the state did not prove by two credible witnesses, or one credible witness corroborated strongly by other evidence, .the falsity of the defendant’s statement made the basis of perjury. ,We have carefully read and studied the testimony. The Jury, after hearing all of it and the argument from both sides and the charge of the court, found the reverse of appellant’s contention, and the trial judge who heard the testimony also so found. In our opinion, the evidence was sufficient and complied with the statute.

The testimony is ample to show: That the Cotton Belt train arrived in Alexander at about 4:80 on Sunday evening, Eebruary 27, 1916; that appellant and one John Deisher together went from the depot just after the arrival of the train to said Deisher’s residence, and remained there together from 20 to 30 minutes. Deisher’s wife was away from home that evening. That the parents of Myrtle Bennett at this time were getting milk from Deisher, the two families living not far apart in Alexander. Myrtle was a girl just over 13 years of age. She testified that said evening, soon after the arrival of said train, she got a bucket and went from her home with it to Deisher’s for milk; that when she reached there, she went into his residence and saw appellant in Deisher’s presence; that they spoke to one another at the time, and that appellant knew her, saw (her, and. spoke to her and called her by name at the time; that Deisher took her bucket, went out of that room into some other, got the milk, and brought it back to her; that while this was transpiring, appellant left the room where she was; and that when Deisher came back to her with the milk, he took her, laid her down on the bed, unbuttoned her clothes, and had a complete act of sexual intercourse with her;, that when through she went back to her home with the bucket of milk. Her mother testified that Myrtle came home said evening soon or just after the arrival of said Cotton Belt train, that they were getting milk from the Deish-ers at that time, and that she did not know that Myrtle went to Mr. Deisher’s that evening, because she was sick in bed herself, but “I know where I told her to go, and she is supposed to have gone.” Her father swore that they were getting milk from Mr. Deisher at the time, and that they had milk for supper that night. Her father further swore: That late that evening, about or just before sundown, while at home, he saw a 'rabbit out some short distance, got his gun, and went to kill it. While going after the rabbit, he saw appellant and Deisher together going in the direction of Deisher’s. This evidently was shortly after the act of intercourse testified to by Myrtle, and after she had reached home from Deisher’s. That when appellant and Deisher saw him with the gun, Deisher went into a closet. Appellant asked him what he was going to kill, and he said the rabbit, telling about having seen it, etc., and that he said this loud enough for Deisher to have heard it. That thereupon Deisher came out of the closet, the three talked awhile, and he then went on and killed the rabbit. Mr. Strong swore that he knew Myrtle; that about sundown that evening he saw her coming from the direction of Deisher’s house, about 50 yards from Deisher’s, going towards her home, with a bucket in her hand. Mr. Johnson, the county attorney, testified that while appellant was a witness before the grand jury, when the grand jury was investigating the case of rape against Deisher on said occasion, he then swore that he and) Deisher went to Deisher’s together after said train came in, and that if Myrtle had come there at the time she swore she did after milk, he would have seen her. Appellant himself swore that he and Deisher went together from the depot, after the arrival of said train, to Deisher’s residence, and that they remained there together from 20 to 30 minutes and left there together about sundown; that Mrs. Deisher was not at home that evening.

Right away after said alleged rape of Myrtle by Deisher, a proper complaint was made against him, charging him with raping said girl on said occasion. The proper warrant was issued, and he was arrested thereunder, and an examining trial was had, and he was bound over and gave bond to appear at the next term of the court to await the action of the grand jury. That all these papers were turned over to the grand jury, and at the June term of the court, the grand jury investigated the said charge against Deisher. That the grand jury had appellant before them twice, and that he swore before them that he did not see Myrtle at Deisher’s residence on said occasion when she testified she went there for milk that evening. His testimony on, this p«Lnt was the predicate for the charge of perjury against him. Myrtle swore positively that appellant did see her at Deisher’s on that occasion and spoke to her; that she knew him, and he knew her. Appellant also swore that he knew Myrtle at that timé, and before.

The evidence, thus briefly stated, shows that Myrtle testified positively that she went to Deisher’s at the time stated to get milk for her parents, carrying with her a bucket for that purpose, and that on that occasion appellant did see her. Appellant himself corroborates her, in that he swore he and Deisher went from the train to( Deisher’s just after it arrived, and remained there some 20 to 30 minutes. During this time is when Myrtle swears she was at Deisher’s. She was corroborated by her parents, in that she was sent by her mother for milk on this occasion, and her father swore they had milk for supper that night. She was seen - on said occasion coming from Deisher’s with a bucket in her hand. Other circumstances of corroboration of her are also shown. Upon the whole, we think the statute was met, in that one witness, whom the jury expressly found was a credible witness, testified positively that appellant’s said testimony before the grand Jury was false, and that she was corroborated strongly by other evidence as to the falsity of appellant’s said statement, and the court did not err in refusing to give appellant’s requested peremptory instructions to acquit him.

The indictment was clearly sufficient; the allegations conformed fully to the requirements of the statute, and followed the approved forms for such indictments. Appellant’s special charge No.' 3 was fully and completely covered by| the court’s charge. Hence the court correctly refused to give it.

His charge No. 5 was to the effect that if the jury should find from the evidence that as a result of drinl^ing alcohol, if he was on the date mentioned, his memory was impaired to such an extent as to render him incapable of remembering seeing Myrtle Bennett at said house at said time, and that if he did see her, and by reason of his said impaired memory he made the statement before the grand jury alleged in the indictment, to find him not guilty. The evidence in no way called for such a charge. Appellant’s evidence itself excluded the idea that, by reason of drinking alcohol, or any other reason, he was caused to make the alleged false oath by mistake, and shows that his said statement before the grand jury was made deliberately and willfully, after his attention had been repeatedly, both in the grand jury room and before, called thereto. Sisk v. State, 28 Tex. App. 436, 13 S. W. 647.

The court correctly permitted the introduction of the said complaint against Deisher, charging him with rape, the warrant for his arrest, and his bond for his appearance before the grand jury, for the purpose as stated by the court, to identify the cause the grand jury had under investigation and to show the jurisdiction of the grand jury to inquire into that subject-matter. Stanley v. State, 95 S. W. 1076; Wilson v. State, 27 Tex. App. 48, 10 S. W. 749, 11 Am. St. Rep. 180; Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85; Martinez v. State, 39 Tex. Cr. R. 476, 46 S. W. 826; Smith v. State, 31 Tex. Cr. R. 318, 20 S. W. 707; 30 Cyc. pp. 1443, 1445, and cases cited on the latter page.

Appellant sought to impeach Myrtle by showing she made a different statement before this- trial from what she made on this trial. The court, therefore, permitted the state to introduce her testimony on the examining trial to the same effect that she now testified, for the purpose of corroborating her, and appellant’s bills Nos. 10 and 14 on this subject show no error. Branch’s Crim. Law, § 874.

The case was tried during the term at which the indictment was preferred. The court committed no error in requiring the clerk to enter his- order, appointing Dave Deaton foreman of the grand jury, who signed the indictment as foreman. The minutes of the court were in the control of the trial judge during the whole of the term.

The court correctly permitted the county attorney to testify that appellant, when before the grand jury, swore that if she (Myrtle Bennett) had come there that evening, he would have seen her.

Nor does appellant’s bill No. 11 to the court’s remark that she would know whether appellant knew her or not, when appellant was objecting to her testifying to that fact, show any error. She and appellant both testified that he knew her at that time, and before. As qualified by the court, appellant’s bill No. 12 shows no error.

Nor did the court err in permitting M3rrtle Bennett to testify that she was afraid of said Deisher.

Nor did the court err in permitting J. C. Bennett to testify what appellant said to him, and he to appellant, in Deisher’s hearing, about why he had the gun and what he was going to kill therewith.

Myrtle Bennett and her father and mother positively testified to her age. There was no dispute or controversy as to her age. So that if the court erred in permitting the record of her birth from a page torn from her parents’ Bible to be admitted, the error would be entirely immaterial and harmless. She testified before the jury, and the jury saw her, and could well judge of her age. Henkel v. State, 27 Tex. App. 510, 11 S. W. 671; Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538; Nelson v. State, 35 Tex. Cr. R. 205, 32 S. W. 900; Tracy v. State, 44 Tex. 9; Height v. State, 68 Tex. Cr. R. 278, 150 S. W. 908; Veal v. State, 8 Tex. App. 477; Gaston v. State, 11 Tex. App. 143.

No error was committed by the court in permitting the cross-examination of appellant about his approaching a witness against him and what he said to such witness. This was proper cross-examination. Nor did the court err in permitting the cross-examination of appellant's witness Poe, shown by his bill No. 17.

It was- the duty of the court to see that the statement of facts was true and correct before he approved it, and when the parties failed to agree thereon, differing about one fact testified to, it was the duty of the court to make the statement of 'facts on this point speak the truth, as he did, before approving it.

There is no reversible error shown in this ease. The evidence was amply sufficient to justify the verdict.

The judgment is affirmed.

HARPER, J., absent.
      @=r or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    MARSDEN et al. v. TROY, Co. Atty.
    (No. 5785.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 1, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Emotions <@=>227(1) — Conduct — Irregularities.
    As Const, art. 6, § 2, providing that persons of foreign birth having the qualifications provided for natives who have declared their intention to become citizens of the United States, shall be deemed qualified electors, designated a special class, if a proclamation by election officers that no man not born in the United States, unless he had his final naturalization papers, would be permitted to vote in an election to determine whether the sale of intoxicating liquors would be prohibited in a county, was made known and a sufficient number of this class was prevented from voting to overcome the majority in favor of prohibition and change the result, whether they presented themselves at the polls or not, the election was void.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197, 198; Dec. Dig. <@=>227(1).]
    2. Elections <@=>285(3) — Contests—Petition —Sufficiency.
    Although when an election is attacked on the ground of the exclusion of individual voters, the name of each individual must be alleged, in an action to contest an election an allegation in the petition that an announcement was made before the election that a certain class of voters would be excluded from voting; that a number of votes sufficiently large to have changed the result of such election were prevented by such announcement from attending the polls — was sufficient to form a basis of proof of such facts without naming the voters of the class.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 269, 274; Dec. Dig. <@=>285(3).]
    3. Elections <@=>285(3) — Contest—Petition-Sufficiency.
    In an action to contest an election, a petition, alleging that in several precincts, the officers of the election proclaimed publicly that no man not born in the United States would be allowed to vote unlegs he had his final naturalization papers, and that the announcement was made in three precincts named, and was circulated throughout the precincts, was sufficiently definite in naming the precincts in which the class of voters was excluded and the officers who announced that the class would be excluded.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 269, 274; Dee. Dig. <@=>285(3).]
    4. Elections <©=>73 — Qualification of Voters — Poll Tax Receipt — Statute—“Affidavit” Oath.
    Under Rev. St. 1911, art. 2952, providing that if a citizen, after receiving his poll tax receipt or certificate of exemption, removes to another county or another precinct in the same county, he may vote at an election in the precinct of his new residence by presenting his poll tax receipt, or certificate of exemption, or his written affidavit of its loss, to the precinct judges, and by making oath that he is the person described, etc., an “affidavit” being an “oath” reduced to writing, and the oath only being for purposes of identification, the requirement of an affidavit is mandatory, but only with regard to a voter who has lost his receipt or certificate, while that in regard to an oath is only directory, so that votes of electors who had' paid their poll taxes and removed to another'precinct, but made neither affidavit nor oath, were not illegal where their receipts or certificates were not lost, and the oath was not required by the election officers.
    [E'd. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <@=>73.
    For other definitions, see Words and Phrases, First and Second Series, Affidavit.]
    5. Intoxicating Liquors <@=>35 — Elections— Count of Votes — Statute—Construction— “Majority Vote.”
    Under Const, art. 16, § 20, providing that the Legislature shall enact a law whereby the qualified voters of any county, etc., by a “majority vote,” etc., may determine whether the sale of intoxicating liquors shall be prohibited, and Rev. St. 1911, art. 5723, providing that if a majority voting shall vote against prohibition, the court shall make an order declaring the result, etc., article 3062, declaring that illegal votes shall be cast out and .article 5720, requiring that officers holding a local option election conform to general laws, the result of an election on the question of prohibition is determined by a majority of qualified voters voting, and no inquiry as to the whole number of persons entitled to vote is necessary.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. <@=>35.
    For other definitions, see Words and Phrases, First and Second Series, Majority Vote.]
    6. Elections <@=>72 — Qualifications of Voters — ‘ ‘Residence.”
    That a man’s wife and children resided on their homestead fixed his residence there, although he may have taken but one meal a day and spent the rest of his time on another farm.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. <@=>72.
    For other definitions, see Words and Phrases, First and Second Series, Residence.]
    7. Elections <@=>225 — Ballots.
    A voter should not be allowed to repeat his vote because he violated the law in casting the first one.
    [Ed. Note. — For other cases, see .Elections, Cent. Dig. § 195; Dec. Dig. <@=>225.]
    8. Domicile <@=>8 — Evidence—Presumptions.
    The presumption that every man has a fixed domicile applies as well to a single as to a married man.
    [Ed. Note. — For other cases, see Domicile, Cent. Dig. §§ 36, 37; Dec. Dig. <@=>8.J
    9. Elections <@=>73 — Qualifications of Voters.
    As residence is largely a matter of intention, made to appear by all the facts and circumstances of the case, and absence from place of residence will not alone destroy a residence once fixed, that a voter had been abroad and out of the state a great deal, nothing being shown with regard to his intention, will not destroy his right to vote.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <©=>73.]
    Appeal from District Court, Bee County; J. F. Mullally, Judge.
    Action by A. C. Marsden and others against Charles Troy, County Attorney. Judgment for defendant and plaintiffs appeal.
    Reversed and remanded.
    Dougherty & Dougherty, B. D. Tarlton, Jr., and G. C. Robinson, all of Beeville, for appellants. Thomas, Milam & Touchstone, of Dallas, and Beasley & Beasley, J. Ed Daugherty and Charles Troy, all of Beeville, for ap-pellee.
   ELY, C. J.

This is a contest of an election held in Bee county, on January 8, 1916, for the purpose of determining whether the sale of intoxicating liquors should be prohibited within the bounds of that county. The proper authorities declared that the election resulted in favor of the prohibition of the sale of • intoxicating liquors within Bee county, and appellants, who are citizens and property holders, instituted this suit. The trial judge, after hearing the evidence, declared that prohibition had been adopted by a majority of 29 votes; there being 618 votes for prohibition and 589 votes against.

The first assignment of error assails the action of the court in sustaining a special exception to the thirteenth paragraph of the petition. The statement of the appellants shows the exception was sustained to only that part of the paragraph which failed to name the voters who were prevented from attending the polls “in several precincts” by the proclamation of officers of the election that “no man not born in the United States would be allowed to vote unless he had his final naturalization papers, and that it would be necessary for him to produce them in order to be entitled to vote.” The object of the allegation was to raise the issue of a certain class of qualified voters being deprived of their votes by the announcement that none of the class would be permitted to vote, whereby they were prevented from attending the polls.

It is provided in article 16, § 20, of the Constitution of Texas that the Legislature should, at its first session, after the adoption of the Constitution, enact a law providing that the qualified voters of any county, and city, or subdivisions of the county, might, by a majority vote, determine from time to time whether the sale of intoxicating liquors should be prohibited within the prescribed limits. In compliance with the command of the Constitution an act was passed, which has, from time to time, been amended, which act is comprised in title 88 of the Revised Statutes known as the “Local Option Statutes,” authorizing “the qualified voters” of any county or any political subdivisions thereof, or of any city or town, to vote on the prohibition of the sale of liquor, and prescribing rules for holding such elections.

Under the Constitution (article 6, § 2) every male person of foreign birth, not subject to the disqualifications named in section 1, and having the qualifications provided for natives, who, not less than six months before any election at which he offers to vote, shall have declared his intention to become a citizen of the United States in accordance with federal naturalization laws, and shall have resided in this state one year next preceding the election and the last six months in the county in which he \pffers to vote, shall be deemed a qualified elector. Such elector, as a matter of course, would be fully qualified by the constitutional provision to vote on the question of prohibition as well as for officers, or on other questions, and it will be conceded by every one that it was improper and illegal to refuse persons living in the precinct of the voting, and possessing the other qualifications prescribed in the Constitution and laws, the right to vote.

It may be accepted as law that where the officers of an election have adopted an erroneous rule in regard to the qualifications of voters which affects a class of voters and which has become generally known to the persons excluded by it, members of the class would not waive their rights by absenting themselves from the polls. The offer of their ballots after the promulgation of the rule excluding them would be an idle and useless formality. McCrary on Elections, § 235. Still under that rule it would be necessary for the contestant, basing his suit on the ground of the rule excluding a class, to allege and prove that a sufficient number of voters affected by the rule had not, on account of it, participated in the election, as probably to have changed the result.

In the case of Howell v. Pate, 119 Ga. 537, 46 S. E. 667, negroes as a class were excluded from voting solely on account of color, and the Supreme Court of Georgia held that as such exclusion affected a sufficient number to alter the result, the election was void. That case was cited in the case of Coggeshall v. City of Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 221, and the Supreme Court of Iowa held, in a case where women as a class had been excluded from voting:

“Had the election officers gone no farther than to refuse the votes of the women which were actually tendered, the result could not be disturbed, for in that event enough were not rejected to have changed the result. But the refusal was not based upon disqualification peculiar to the individuals, but as members of a class. The evidence shows conclusively that the denial was directed to all women as members of a class.”

The court followed the proposition quoted by reviewing the facts that tended to show that no woman would have'been permitted to vote, no matter how many may have presented themselves, and that this fact was made known to the women by refusal to erect separate voting booths for them, as required by law, by the opinion of the city solicitor denying the right of women to vote, and was announced through the different clubs and through the daily press which gave widest publicity to it. It was alleged and proved in that case that the votes of the- women would have been many times the majority given in favor of the proposition that was voted upon. The court said:

“According to the last state census, there were 19,179 native-born women above 21 years of age residing in Des Moines, or 741 more than there were men of like age, and no time need be wasted in deducing from this proof that more qualified female voters than were necessary to tover-come the majority resided in the city June 20, 1907, the day of the election.”

In the case of Renner v. Bennett, 21 Ohio St. 431, the votes of the inmates of an asylum were not accepted through an error on the part of the election officials, and it was held that the election was a nullity, the legal votes rejected being in excess of the majority given at the election.

Summing up the result of opinions on the subject of rejection of certain classes of votes, it is stated in Ruling Case Law No. 9, pp. 1147, 1148, § 139:

“There is a distinction, however, between depriving an individual of the ballot and the denial thereof to an entire class of voters, for where the body of voters denied the privilege as a class is numerous enough to have changed the result, the denial is then in the nature of oppression, and operated to defeat the very purpose of the election; that is, of ascertaining the choice or sentiment of the electorate. Where voters are rejected because they belong to a certain class, it is not necessary to establish the fact that those who actually presented themselves and were rejected were sufficient to change the result of the election. The erroneous rule adopted by the election officers affects the entire class, and they may submit to it without waiving any rights. Though they do not present themselves at the polls and offer their ballots, they have the right to take notice of the decision of the board in other cases precisely like their own.”

In view of the authorities on the subject of rejection of voters by class, we hold that where there are allegations and proof that a certain class of voters was prevented from voting and the fact was made known and the members of the class thereby prevented from casting their ballots, whether they presented the same at the polls or not, and the number was sufficient t'o have overcome the majority and changed the result, the election would be void, irrespective of how the rejected class may have voted had the members been permitted to cast their ballots. It is the act of rejecting the body of voters of a certain class in the face of the Constitution that invalidates the election, if the number is sufficient to change the result of the election. If it was made known to the voters of a precinct that no foreign voters who had not obtained full naturalization papers would be allowed to vote, it would have been silly and unprofitable for each member of the class to have gone through the farce of having his vote rejected.

It is contended that no announcement was made as to any class of voters, but merely that certain qualifications were required of the voters as they presented themselves, and that foreign voters, who had merely declared their • intention of becoming American citizens, would not form a class within the meaning of the authorities on the subject. The-Constitution saw proper to divide the voters of Texas into two classes; one composed of native-born and naturalized citizens, and the other of foreign-rborn citizens who have declared an intention to become naturalized. This is a class not by reason of sex, nor color, nor occupation, nor being located in a certain institution, but a class made and determined by the Constitution. The class is just as easy of identification, and is just as clear and distinct as though designated by occupation, nationality, color, sex, or location in a certain place. It is true in the instance of sex and color change to another class is not possible, but as long as the condition of the voter by declaration of intention to become a citizen remains unchanged, his class is just as distinct, although not as visible, as that made by sex or color. The possibility of change to another class does not-alter the fact that the Constitution has placed the voter in a certain class as long as he may hold that position. He is as clearly in a class as are persons under 21 years of age, idio'ts, and lunatics, paupers supported by the county, persons convicted of any felony, or soldiers, marines, and seamen in the service of the army or the navy of the United States, who are the classes debarred from voting. The soldier or the seaman, mig'ht undoubtedly leave his class and become a citizen, still while in the service of the country he belongs to a certain class that is not permitted to vote. So the foreigner who has declared his intention to become naturalized will remain in that class until he obtains the right to enter the other class of voters.

In the thirteenth paragraph of the petition it was alleged that:

“In several precincts the officers of said election proclaimed publicly to the electors gathered at the polls while the election was being held that no man not born in the United States would be allowed to vote unless he had his final naturalization papers, and that it would be necessary for him to produce them in order to be entitled to vote, and this rule was enforced by the election officers.”

It was further alleged that officers made the announcement in precincts 1, 6, and 9, and that it was circulated throughout the precincts, that some voters, naming them, were rejected on the ground mentioned, and that:

“A large number of voters who were not native-born American citizens, but who were qualified to vote by reason of having made a declaration of intention to become citizens of the United States, and who were legally qualified to vote under the Constitution and laws of the state of Texas, were deterred and prevented from going to the polls.”

It was further alleged that if the voters had gone to the polls, they would have changed the result of the election. The allegations in this paragraph, are reiterated in paragraphs 14 and 15 of the petition. A special exception to all of the paragraphs was sustained by the court, • and this action is the subject practically of the first, second, and third assignments of error.

The fifth special exception assailed paragraph 13, on the ground that the names of the officers who made the proclamation at the polls were not alleged, nor in which precincts such officers hel^l the election, and, further, that the paragraph alleged that a large number of voters were prevented from voting, without giving the names of such voters, their residence and voting boxes. The exceptions were sustained, not only as to paragraph 13, but also as to paragraphs 14 and 15, on the ground that the voters of the class excluded were not named. This, we think, was error.

The petition alleged that announcement was made that a certain class of voters would be excluded from voting; that a number of the class attempted to vote, but were prevented, giving their names; that a number of voters sufficiently large to have changed the result of the election were prevented by the announcement from attending the polls; and that they would have voted against prohibition. These allegations were sufficient to form a basis for proof that a class of voters with a membership sufficient in numbers to have changed the result of the election were deterred and prevented from voting by the unlawful ruling of the precinct officers of election. It was not necessary to name the voters of the class in order to present proof that a number of citizens of a certain class were prevented from voting, not as individuals, but as a class, and that the number was of such magnitude as to have changed the result of the election. When an election is attacked on the ground of exclusion of individual voters, it is necessary that the name of each individual should be given, but the reason for the rule fails as to a class excluded. In that instance no proof as to the individuals is necessary, except as tending to show the number belonging to the excluded class. If the exclusion referred to sex it would be sufficient to allege that members of that sex were excluded, and so as to color, occupation, or a constitutional class. The names are given in case of the exclusion of individual votes in order to identify them and offer an opportunity to the contestee to meet the allegation by testimony. In alleging a class there is as clear an identification of the voters to whom the allegations apply as though each one had been named and otherwise described. When contestee in this case was informed that proof that all foreign voters who had merely declared their intention to become American citizens, but had not received naturalization papers, would be and were excluded from voting, he knew exactly the issue he had to meet, and was put upon as full notice as though each member of the class had been named. In many instances, if not in this, it would be absurd, if not impossible, to give all the names of the class excluded. Take the Iowa case, herein cited, where about 20,000 women were excluded from voting as a class, it would have been preposterous, as well as totally unnecessary, to have pleaded the names of the excluded class. No authority can, we think, be cited that would sustain such a ruling. No good object could be attained by such holding, and no allegation in pleadings is required, which is not supported by some potent reason. Pleading names of individuals excluded from voting in an election contest would not identify voters any more clearly than by alleging a class. The pleadings were sufficiently definite in naming precincts in which the class of voters was excluded and the officers who announced that the class would be excluded.

The twelfth, thirteenth, and fifteenth assignments of error, which are grouped as the fourth assignment, are overruled. The court found that certain voters had removed from the precinct or county where they lived after they had paid their poll tax and voted in the new precinct or county to which they had removed without making the affidavit of payment of the poll tax or had received the certificate of exemption, and that the voter is the identical one named in the poll tax receipt or certificate of exemption and as to his residence for the required time in county and state. All of the voters had paid the necessary poll tax and could have truthfully made the affidavit required by article 2952, Rev. Stats., but no affidavit or oath was required by the officers of election. The affidavit provided for has reference only to the voter who has lost his poll tax receipt, for the law says:

“If a citizen, after receiving Ms poll tax receipt or certificate of exemption, removes to another county or to another precinct in the same county, he may vote at an election in the precinct of his new residence in such other county or precinct by presenting his poll tax receipt or his certificate of exemption or Ms written affidavit of its loss to the precinct judges of election, and stating in such affidavit where he paid such poll tax or received such certificate of exemption, and by making oath,” etc.

We are of opinion that the affidavit referred to in the law does not apply to any voter except one who has lost his receipt or certificate, because the affidavit is not mentioned except in connection with that class of voters, and it has no reference whatever to a voter with a tax receipt or exemption certificate, and a voter of either of those classes would not be required to present any affidavit whatever to the election officers, but could be required, as would the man who was compelled to present an affidavit of loss, to make—

“oath that he is the identical person described in such poll tax receipt or certificate of exemption, and that he then resides in the precinct where he offers to vote and has resided for the last six months in the district or county in which he offers to vote and twelve months in the state.”

Just as the voter with the poll tax receipt or exemption certificate who has moved into another precinct or county is compelled to present such receipt or certificate when he desires to vote, so must the voter who has lost his receipt or certificate present his statutory affidavit of loss before he should be allowed to vote, and in addition as a means of identification each may be required to make oath to certain facts named in the statute. An “affidavit” is a written or printed declaration of facts confirmed by an oath, while an oath is a pledge, not in writing, made in verification of statements made or to be made. In other words, an affidavit is an oath reduced to writing. The Legislature evidently had in view the distinction between an affidavit and an oath, and contemplated that the fact of loss of receipt or certificate should be in writing, while to establish identity an oath, to be administered by an officer of election, would be sufficient.« As to the voter who has lost his receipt or certificate, the affidavit is essential to qualify him to vote, but the oath is only for the purpose of identification, and if the officers of election are satisfied without it, the vote cast would be legal. Should any of the votes cast have been presented by voters who had lost their receipts or certificates, without affidavits of such loss ‘as required by statute, the votes would be illegal, but if the officers failed to require oaths of identification, the votes would be valid if in other respects the voters casting them were qualified. That part of the statute requiring the presentation of the affidavit of loss in lieu of the receipts or certificate is, we hold, mandatory, while that in regard to the oath establishing identity is directory. In the first instance, a vote might be invalidated by a failure to present the affidavit, but the failure to make the oath of identification if the voter is in fact qualified would not affect the validity of his vote.

We cannot accede to the proposition on the part of appellant that by a majority of the qualified voters it was intended to provide that it requires a majority of all the voters of a county or any subdivision thereof to determine the question as to whether intoxicating liquor should be sold therein. As said by McCrary, § 462:

“Where, however, the statute provides in general terms that the election shall be determined by a majority of the electors, it will be held to mean a majority of the electors voting; and, in ascertaining the result under such a statute, no inquiry as to the whole number of persons entitled to vote will be necessary or proper.”

We think it clear that the Constitution did not contemplate that prohibition might be adopted or continued in force indefinitely by voters remaining away from the polls, but expected local laws to be adopted or defeated by a majority of those voters who prize their ballots sufficiently high to go to the polls and deposit them. This proposition is sustained by a long list of authorities construing similar statutes. The Legislature clearly so construed the constitutional provision to mean a majority of the qualified votes cast, and not a majority of the voters who may reside in the territory to be affected by the election. Article 5723, Rev. Stats. That this is the legislative construction of the Constitution is apparent from article 5723, Rev. Stats., where it is declared:

“If a majority voting at such election vote 'against prohibition,’ the court shall make an order declaring the result, and have the same entered of record in the office of the clerk of said court.”

Of course if it takes only a majority of the votes cast to defeat prohibition, it would take only a majority of the votes cast to approve it. In the case of Itasca School Dist. v. McElroy, 103 Tex. 64, 123 S. W. 117, the Supreme Court, in passing upon the language of a constitutional amendment relating to schools, held:

“The entire provision satisfies us that that rule has been adopted which ordinarily prevails in elections, and which is that the result as to a question or proposition submitted is determined by the vote given upon it, and not by that upon others.”

And we add that the majority vote intended in local option cases is a majority of the qualified voters who cast their ballots, and not by a majority of the voters who may reside in any certain territory.

In the South Dakota case of Williamson v. Aldrich, 21 S. D. 13, 108 N. W. 1063, it is held that, by a “majority of the electors of the city” used in the state Constitution as to incurring a debt, a majority of the electors of the city, and not a majority of those voting, was intended, and yet it is stated in the opinion that the authorities hold that such expressions as “a majority vote of the electors of the county” mean a majority of the votes cast, and not a majority of the votes in the county. Whatever construction courts of other states1 may place on the language of their Constitutions, we are of opinion that in the case of votes on prohibition a majority of the votes cast was intended. That has been the universal acceptation of the meaning of the terms used in the Constitution since its adoption, and all elections on the subject of prohibition have been determined on that construction. Of course the proposition will not be entertained by this court that illegal votes cast, although not counted for either side of the question, must be added to the total, and if the vote for prohibition was not more than one-half of that total, prohibition was lost. The illegal votes’ will be eliminated from the count altogether. If the vote of any person could not be counted on either side of that question because of its illegal character, it was not cast by a qualified voter, and ’should be ignored altogether. It would be a singular proceeding to allow illegal votes, which could not be counted for either- side, to be used to defeat a proposition by adding them to the total vote and then proclaim that the side having the most legal votes had been defeated because of the illegal votes being counted in the total vote. They would often have more potency in that way than by being cast for their respective sides. Such a procedure would be in the face of article 3062, Rev. Stats., which provides that illegal votes shall be cast out, and in article 5720 it is provided that the officers holding a local option election shall, in all respects, conform to the general election laws.

The sixth assignment of error is overruled. Robert Linke, being a married man, and his wife and children residing in the town of Beeville in their homestead, and that fact fixing his residence there, although he may have taken only one meal a day at his town home and spent the rest of the time on a farm two miles1 from town, was a resident of Beeville. If he had the right to vote in Beeville, as claimed by appellants, he was compelled to pay the city poll tax there. He could not be a citizen for the privilege, but not a citizen when it came to the burdens.

The uncontradicted evidence seems to have shown that Joe Bojae paid his poll tax and his vote should not have been excluded.

The eighth assignment of error is sustained. Allowing a voter, who marked1 his own ballot and voted it without presenting to the officer of election, to prepare and vote another ballot, was inexcusable, and the vote of such voter should have been rejected. A voter should not be allowed to repeat his vote because he had violated the law in casting the first one. If such practice were tolerated, it would require an examination of ballots in order to eliminate one, or both would be counted. In the case of Roach v. Malotte, 23 Tex. Civ. App. 400, 56 S. W. 701, the Court of Civil Appeals of the Second District strongly condemned the action of election officers in allowing a vote deposited by a voter to be taken from the ballot box and another ballot substituted by him. As said by the court, when the voter has voted he cannot change his vote, or vote more than once. How much more reprehensible to permit him to vote again and thus have two ballots in the ballot box. McCormick v. Jester, 53 Tex. Civ. App. 306, 115 S. W. 278.

The voter August Richards was a Frenchman, hut moved to Texas and had, up to 1913, been living in Bee county for 15 or 20 years, owning real estate there. In 1913, he sold his home and went to France and remained there until the European war began,' when he says “the war got too hot for him,” and he returned to Bee county and remained a month and then left for Iowa, where he remained until about Christmas, 1914, when he came back to Bee county, remained a while, voted in the local option election, and then returned to Iowa. The evidence was very unsatisfactory as1 to the status of the voter, and no effort seems to have been made to ascertain the intention of the voter as to his residence. Residence is determined largely as a question of intention, which may be made to appear by all the facts1 and circumstances of the case, his declarations, etc. And in this connection it may be said that the presumption that every man has a fixed domicile applies as well to a single as a married man. McCrary, Elections, §§ 102-106. Mere absence from a place of residence alone will not destroy a residence once fixed. The right to vote should not be destroyed on evidence as uncertain as that in regard tó Richards.

The tenth assignment of error is overruled. The evidence tended to show that Ed. L. Deloach was a legal voter.

The eleventh assignment of error is overruled. An election would not be set aside on the irregularities named by appellants. Such irregularities should not occur, but an election otherwise properly and honestly conducted should nor be destroyed by them.

We sustain the twelfth assignment of error as to witness fees for each voter, the legality of whose vote was attacked. Altgelt v. Callaghan, 144 S. W. 1106. The court should have retaxed the costs as to such voters; and, as the cause will be remanded for another trial, the court will inquire into the status of the voters as to interest, as defined in the cited case, and retax the costs in accordance.

The cross-assignments of error first, second, third, fourth, fifth, sixth, tenth, sixteenth, seventeenth, eighteenth, and nineteenth assail the sufficiency of the evidence to sustain certain findings of fact of the trial judge in regard to the denial of the right of certain voters to cast their votes, and they are overruled. The evidence was reasonably sufficient to sustain the findings. The evidence showed that the voters were excluded because they had merely declared their1 intention to become citizens and had been naturalized.

The seventh cross-assignment of error has been fully answered in this opinion, and further consideration of the subject is unnecessary.

The judgment of the trial court will be reversed, and the cause remanded, to be tried in compliance with the foregoing opinion.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    BRAXTON v. VOYLES.
    (No. 1066.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 29, 1916.)
    1. Pleading &wkey;>356(4) — Amendment—Time-Statute.
    Under Rev. St. 1911, art. 1825, providing for amended pleadings, and that such pleadings should be filed a reasonable time before trial, so as not to operate as a surprise, it being within the sound discretion of the court to refuse a pleading filed so late as to operate as a surprise or to allow the pleading filed and continue, where defendant, after admitting execution of a note, defectively pleaded a credit as set-off, and delayed the case from the November term until 7th of March following, the court properly sustained a motion to strike out a plea of non est factum filed on the day of trial without notice.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1117, 1118; Dec. Dig. &wkey;356(4).]

      2. Bills and -Notes <&wkey;485 — Pleading — VERIFICATION — NON EST FACTUM.
    In a suit on a note an unsworn plea of non est factum did not have the effect of demanding proof of the execution of the note.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1543, 1548; Dec. Dig. <&wkey;> 485; Pleading, Cent. Dig. § 866.]
    3. Bills and Notes <&wkey;489(2) — Pleading-Variance.
    In a suit on a note, in which the petition alleged that the note was executed January 1, 1911, and matured November 1, 1911, and the note offered in evidence is dated January 1, “19011,” and matures November 1, “19011,” as the note shows it is on a printed form on which is printed “190,” and “11” is written after the cipher without erasing it, being manifestly a clerical error, there was no such .variance as would operate as a surprise, and the note was properly admitted in evidence.
    [Ed. Note. — For other cases, see Bills and Notes, Gent. Dig. §§ 1588, 1589; Dec. Dig. <&wkey;489(2).]
    Appeal from Wheeler County Court; M. M. Miller, Judge.
    Suit by T. J. Voyles against P. L. Braxton, in which defendant pleaded a set-off or counterclaim. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. C. Small, of Wellington, and Hill & Clark, of Shamrock, for appellant. J. B. Reynolds, of Wheeler, for appellee.
   HUFF, C. J.

T. J. Voyles, the appellee, brought suit in the county court of Wheeler county, on the 29th day of November, 1915, upon a promissory note given by'the defendant, P. L. Braxton, appellant, of date January 1, 1911, for $372, due November 1, 1911, bearing 10 per cent, interest per annum from date, and the 10 per cent, attorney’s fee clause. This suit was returnable to the November term, which convened on the fourth Monday of November, 1915, being the 23d day of the month. On the first day of the term the defendant filed his original answer, in which he admitted plaintiff’s cause of action as alleged, expressly admitting the execution of the note sued on, in the manner and form as alleged in plaintiff’s petition, but pleaded a set-off or counterclaim for the gathering of a crop of cotton by him for the plaintiff. The plaintiff excepted to the answer as to the counterclaim because of its indefiniteness and uncertainty.

The trial court sustained the exception, and the defendant took leave to amend. It is properly inferred that the defendant did amend and deliver the amendment to the attorney for plaintiff, and, owing to this matter so pleaded, was forced to continue in order to take the deposition of the plaintiff, who resided in Parker county, Tex. The case was continued until the February term, 1916, of the county court, which convened on the 28th day of the month. On the first day of the term it appears that the defendant demanded a jury, which necessitated the cause to await its turn as a jury case; that it was regularly reached, it appears, on the 7th day of March thereafter, and called for trial, when it was ascertained that on the 6th day of March the defendant had filed its first amended original answer, a plea of non est factum. This plea was not sworn to until the 7th day of March, the day the case was called for trial. Plaintiff then filed his motion to strike out the plea of non est factum, which, in fact, was the only answer then filed. The motion is as follows:

“Comes now the plaintiff and moves the court to strike out the defendant’s plea of non est fac-tum because the said plea is filed too late, in this: That this suit was filed on the 29th day of October, 1915, and the defendant duly cited to the November term, 1915, of this court; that the defendant filed his original answer at that term; that this cause was continued at said term, and defendant took leave to file its first amended answer, but after the adjournment of said November term, 1915, the defendant delivered to plaintiff’s attorney his said first amended answer and plaintiff proceeded to take the deposition' of plaintiff; that the court convened on the 28th day of February, 1916, and on the call of the docket on the first day of the term, no further pleading having been filed by defendant, he had this cause placed on the jury docket; that not until the 6th day of March, 1916, after this court had adjourned for the day, was this plea of non est factum filed and plaintiff had no knowledge of the filing of this plea until this cause was called for trial on the 7th day of March; that plaintiff is surpised by the filing of said plea, and would not be able to go to trial thereon at this term. Whereupon plaintiff moves to strike out this plea.”

The court sustained this motion, and in the judgment recites that he heard both parties by their attorneys on the motion and duly considered the same. After striking out this plea, the court proceeded to hear the case and render judgment, from which appeal is prosecuted to this court.

The action of the court in striking out this amended answer is assigned as error on the ground that the court had no power to strike out the amendment, but that he was entitled, as a matter of right, to file the answer, and the court should have only continued the case and charged the continuance and the costs thereof to the defendant.

Substantially the same question is presented by the first and third assignments, which are considered together. Article 1825, Revised Civil Statutes, relating to the filing of amended pleadings, provides that leave should be given therefor, and that such pleadings shall be filed a reasonable length of time before the case is called for trial so as not to operate as a surprise to the opposite party. Leave was granted the defendant to file an amendment when the court sustained a special exception at the former term of the court, and the case was continued to give the plaintiff an opportunity to take his deposition, he residing at that time in Parker county, Tex. The motion set up that the defendant prepared its amended answer and presented it to the attorney for plaintiff, who proceeded to take the deposition ; that he learned for the first time when the ease was called for trial the defendant had pleaded non est factum, whereupon plaintiff presented his motion. The court recites in the judgment therein that the motion was presented and heard and argument had thereon, and, being fully advised in the premises, he sustained the motion and struck out the plea of non est factum, which, in fact, was all of the answer. It is evident the court was fully advised in the premises by the record and by the evidence. The question therefore presented is one whether the matter was addressed to the trial court’s discretion, or whether the filing of the pleading was an absolute right. When the request is made by a party as a matter of right, he is entitled to leave to file an amendment, provided the amendment must be filed in a reasonable time before the case is called for trial so as not to operate as a surprise. If the party has not complied with the statute in this particular, it is urged, nevertheless, the trial court must permit the pleading filed and under the rules tax up the costs against the party causing the surprise. It seems to us the statute authorizes' the court to refuse leave to file when it would create surprise and operate as a continuance on that ground. If he should permit it, then he may, in his discretion, continue on the ground of surprise. In either event the matter is at his discretion. Prom the fact that a party has the right to amend and a court cannot deprive him of that right, it does not necessarily follow, when it is filed an unreasonably short time before the case is called for trial, and when it is manifest a postponement or continuance must be had in order to meet this new plea, that the court should grant the amendment. Surely it was not the purpose of the statutes and the rules to reward the slothful or negligent, or perhaps aid a party who is seeking to avoid a trial. Upon this motion to strike out the plea the defendant showed no excuse for the long delay. Under the showing in this record, if the court could exercise its discretion in the matter, he did not abuse it. This pleading was evidently filed without permission, and when the court’s attention was first called to it he refused to permit it to remain, or refused to permit it to be so filed. This the statute gave him the power to adjudge and determine. His action or decision in the matter was not abused, at least there is nothing in the record showing abuse. Our Supreme Court has held the right to file an amended pleading is not an absolute right. Lipscomb v. Perry, 100 Tex. 122, 96 S. W. 1069; Bailey v. Fly, 97 Tex. 425, 79 S. W. 299; Railway Co. v. Miller, 137 S. W. 1194; Houston Oil Co. v. Reese, 181 S. W. 745; White v. Provident National Bank, 27 Tex. Civ. App. 487, 65 S. W. 498. It occurs to us, if the statute is to have any force or effect with reference to reasonable time and not creating surprise, it should be applied in this case. At a previous term of the court appellant, by pleadings, admitted the execution of the note. All that he then contended for was that he was entitled to a credit or offset. Having pleaded this credit defectively, it was stricken out upon special exception, with leave to amend, which it appears was done in this case, and the pleading handed to plaintiff’s attorney. The ap-pellee was compelled to ask for a continuance in order to take his deposition in Parker county. After the deposition was taken on the first day of the succeeding term, a jury was called for by defendant, thereby putting, the ease over from the 28th day of February until the 7th of March. The plea of non est, factum was not filed until the 6th day of March, according to the motion, and, as evidently found by the court, late in the evening ; and the plea shows not to have been-sworn to until the 7th, the day the case was called for trial. The unsworn plea did not have the effect of demanding proof of the execution of the note until it was sworn to. It therefore follows no plea of non est fac-tum was made until the 7th, which would require notice to be taken of it. Drew v. Harrison, 12 Tex. 279. The case was set and called for trial at that time. If the court had permitted the answer to remain as a pleading, it would have forced the appellee to again continue to meet this new issue injected at the time the ease was set and called for trial. There is no excuse shown for not sooner filing this plea. If the court has not some authority to prevent its time from being so trifled with, there will be no end to continuances forced on a party on the call of the case. • It occurs to us the court took the proper course in this case, and, Instead of forcing the plaintiff to continue on account of surprise, he prevented the surprise being perpetrated at the last moment. We think he not only did not abuse his discretion in the matter, but that he exercised it wisely and justly, and certainly in the interest of expedition and sound policy. Oases are many, it is true, where the right to file an amendment is strictly guarded, and, where there is ground allowing it, courts are disposed to grant leave to file pleadings and permit it to be done. A reading of the authorities cited by the appellant will reveal, we think, that the discretion is vested in the trial court as to the time when pleadings should be filed or the limit for filing, but that discretion must be a sound one. Railway Co. v. Butler, 34 S. W. 756; Hobbs v. First National Bank, 15 Tex. Civ. App. 398, 39 S. W. 331. Assignments 1 and 3 are overruled.

Assignment No. 2 complains at the action of the court in overruling its motion to postpone or continue. Without discussing this assignment, we think the reasons above given are sufficient to answer the assignment, and it will be overruled.

Tlie fourth assignment urges that the court was in error in admitting the note sued on in evidence because there was a variance in its date and the date of payment from the allegations of the petition. The petition alleges the date of its execution as January 1, 3911, and its maturity November 1, 1911. The note offered in evidence and admitted, according to the bill of exceptions, is dated January 1, “19011”, and matures November 1, “19011.” The trial court doubtless applied practical everyday knowledge and observation in ascertaining the dates. The original note was before him, as it is with us. The note shows it is on a printed form, “190” is printed, “11” is written after the cipher, and .instead of erasing the “0” it was left as printed. This is so manifestly a clerical error that any amount of pleading and proof to that effect would not more clearly demonstrate the error than the face of the note alone evidences. It was evidently executed January 1, 1911, and matured November 1, 1911, as alleged. There could have been no such variance as would operate as a surprise to the appellant.

The ease will be affirmed.
      «SsoFor other cases see same topic and KEY-NTJMBBR in all Key-Numbered Digests and Indexes

      <S^jPor other cases see same topic and KEY-NTJMBER. in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    DAVIS v. ALLISON et al.
    (No. 5682.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1916.
    On Motion for Additional Conclusions of Fact. Nov. 29, 1916.)
    1. Constitutional Law <@=>129 — Obligation oe Conteacts — Acceptance—Evidence.
    In an action to recover stock subscriptions, evidence held to support a finding that a special act, approved May 23,1871 (Sp. Laws 12th Leg. c. 264), providing for the incorporation of a banking association, was not accepted prior to April 18, 1876, and hence did not become a contract prior to the constitutional provision prohibiting the formation of such corporations, which became effective on that date.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 296, 301, 362-413; Dee. Dig. <@=>129.]
    2. Constitutional Law <@=>129 — Obligation op Conteacts — Unaccepted Special Act— Repeal.
    AVhere a special act approved May 23, 1871 (Sp. Acts 12th Leg. c. 264), providing for the incorporation of a banking association, was not accepted, it did not become a contract, and vested no rights, and was repealed by Constitution of April 18, 1876, art. 16, § 16, prohibiting the creation of banking corporations.
    [Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 296, 301, 362^-413; Dec. Dig. <@=>129.]
    3. Banks and Banking <@=>39 — Corporations <@=>34(6) — Peohibited Corporation— COLLATEEAL ÁTTACK.
    Where a special act approved May 23,1871, for the incorporation of a banking corporation was repealed and withdrawn by Constitution of 1876, art. 16, § 16, the organization of a pretended banking corporation under this special act, in violation of the clear prohibition of the Constitution, was absolutely void ab initio, did not constitute a de facto corporation, all contracts for subscription are void and contrary to public policy, the notes given for stock are void, either in law or equity, and the subscribers are not estopped to deny its existence as a corporation, although they are liable to depositors and creditors for amounts actually received by the pretended corporation.
    [Ed. Note. — Por other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dee. Dig. <@=> 89; Corporations, Cent. Dig. §§ 92, 96; Dec. Dig. <@=>34(6).]
    4. Coepoeations <@=>34(3) — Right oe Subscribers to Deny Existence — Statute.
    Rev. St. 1911, art. 1138, providing that no person who assumes an obligation to an ostensible corporation as such shall resist the enforcement of such obligation on the ground that there was in fact no such corporation until that fact shall have been adjudged in a direct proceeding had for the purpose, does not apply to pretended corporations expressly forbidden by law, but only refers to ostensible de facto or de jure corporations.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 84, 86, 90, 91, 96; Dec. Dig. <@=? 34(3).]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Suit by T. H. Davis, as receiver for the Union Trust Company, against J. H. Allison and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. B. Robertson, of Austin, for appellant. Charles Rogan, of Austin, Scott & Dodson, of San Antonio, Batts & Brooks, and N. A. Rector, all of Austin, Templeton, Brooks, Napier & Ogden, of San Antonio, and D. H. Doom and White, Cartledge & Graves, all of Austin, for appellees.
   SWEARINGEN, J.

T. H. Davis, in the capacity of receiver of the Union Trust Company, an alleged insolvent corporation, sued J. H. Allison and many other named defendants1 to recover sums claimed to be due by defendants to the alleged corporation on unpaid subscriptions and notes given therefor by the several defendants, and alleged that the unpaid debts due creditors exceeded all the assets, including the unpaid subscriptions. The subscriptions and notes given therefor were particularly alleged. The defendants answered substantially that the alleged corporation was one prohibited by the Constitution of the state of Texas, and therefore, the subscriptions and notes were void. The receiver, by supplemental petition, replied:

“That all the persons who extended credit to the Union Trust Company and made deposits therein believed that various persons had subscribed for stock in the Union Trust Company and that such subscriptions had been accepted, and that it was a corporation bearing such name. The pleadings limit the issue to the liability of the defendants on their subscriptions for the capital stock of the alleged corporation and notes given therefor, and do not raise any issue of liability of the defendants on implied contracts with depositors. It is the contract of subscription, and not the implied contract to repay deposits, that is before us. The eviderce disclosed that a special act was passed by the Legislature and approved May 23, 1871, as follows:
“ ‘Chapter CCLXIV.
“ ‘An act to incorporate the Banking, Insurance and Mutual Aid Association of Texas:
“‘Section l:Be it enacted by the Legislature of the state of Texas, that James Crutcher, G. R. Preeman, Edwin Rust, C. Spalding, Joseph Harrell, and their associates and successors, are hereby constituted a body corporate, under the name of “the Banking, Insurance and Mutual Aid Association of Texas,” and under said name and style shall have succession for ninety-nine years, and a common seal, with capacity to sue and be sued; to do and conduct a general banking and insurance business, under such rules and regulations, as to the management, plan and method of business, as they may prescribe in their by-laws, including the right to make contracts, loan at interest, borrow, discount, take on deposit, buy or sell exchange, bank stocks and other securities, take pledges, and dispose of the same, make investments in any kind of property, real, personal or mixed, insure property against loss or destruction by fire, water or other casualties, provide for mutual aid and life insurance between its members, and such others as' it may allow to participate in its benefits, either partially or otherwise; to enact by-laws for the government of the association, and regulation and management of its business, and generally to do any and every lawful thing needful to successfully conduct a general banking and insurance business, on such plan as may be determined in their by-laws.
“ ‘Sec. 2. The capital stock of the association shall be two hundred thousand dollars, divided into shares of one hundred dollars each, to be increased at the option of the association to five hundred thousand dollars; and as soon as ten thousand dollars shall be subscribed, and ten per cent, thereof paid to the aforesaid corporators, the association shall be deemed organized, and the said corporators, or a majority of them, shall be and are hereby authorized and required to call a meeting of all the subscribers for the enactment of by-laws, and the election or appointment of such officers as they may determine in their by-laws to have, including a president, secretary and treasurer.
“ ‘Sec. 3. The said association shall have their principal office at the city of Austin, with the privilege of establishing branch offices in other towns and cities in the state, and shall have the power to increase their capital stock one hundred thousand dollars for each branch they may establish.
“ ‘Sec. 4. That whenever any member of said association, or his successor or legal representative, or' any one entitled to participate in its benefits, shall fail from any cause to pay, at the time the same becomes due, any sum or sums of money required of him or her by the by-laws of the association, the association may, after thirty days’ public notice, sell and transfer to the highest bidder all the interests of such person in the association or its property, and after paying all expenses, attending the notico and sale, and all dues of such person to the association, they shall pay the residue, if any, to the delinquent who, however, shall be released from only so much of his or her indebtedness as said proceeds are sufficient to meet after paying the said expenses.
“ ‘See. 5. The receipt of a minor or married woman, making a deposit in a bank of said association, shall be deemed a legal acquittance of all liability by the association for the same.
“ ‘Sec. 6. Nothing in this [charter] shall be construed to give authority to issue bills or notes to pass as money.
“ ‘Sec. 7. That this act take effect from and after its passage.’ Approved May 23, 1871.”

The evidence further shows the facts:

That prior to April 18, 1876, when the Constitution prohibiting the creation of banking corporations became effective, the corpora-tors had not organized the corporation under color of the special act; had not accepted the offer from the state as contained in the special act; had not attempted to do or conduct any business; had not adopted a common seal; had made no rules or regulations as to plan or management of business; had enacted no by-laws; had no capital stock; had no subscription for any capital stock; had not received subscriptions for any part of ten thousand dollars of the capital stock; had not received one thousand dollars cash as part payment of the required subscription of ten thousand dollars; had called no meeting of subscribers for enactment of by-laws and the election of officers.

Prior to the adoption of the Constitution, April. 18, 1876, there was1 no acceptance by corporators or subscribers of the offer contained in the special act of 1871, and there was no organization, or attempted organization, of a corporation thereunder. The special act did not become a contract, and vested no rights in any one.

We find that any and all rights offered by the special act had been abandoned by the corporators, had been withdrawn by the state, and the act was repealed by article 16, § 16, of the Constitution on April 18, 1876. The jury found as a fact that the special act had not been accepted prior to April 18, 1876, and there is evidence to support that finding.

The evidence further shows that on May 18, 1904, an attempt was made to accept the offer of the special act, and under color of this repealed act to organize a banking corporation. This attempt was made by parties who claimed to have purchased in 1903 the franchise of becoming and being a corporation. Such a franchise is1 incapable of being sold. Memphis v. Ry. Com’rs, 112 U. S. 609, 5 Sup. Ct. 299, 28 L. Ed. 831; 7 R. C. L. 93, § 70. Subsequently the defendants, appellees, subscribed for portions of the capital stock of this pretended corporation. The subscriptions of some of the defendants were not accepted. The pretended corporation became insolvent, being indebted to depositing creditors in excess of all assets, including the unpaid subscriptions. T. H. Davis was appointed receiver of the pretended corporation.

Our conclusion is that the special act of 1871 was repealed by article 16, § 16, of the state Constitution, effective April 18, 1876, which is in the following words:

“No corporate bodies shall hereafter be created, renewed or extended with banking or discounting privileges.” Quinlan v. H. & T. C. Ry., 89 Tex. 356, 34 S. W. 738.

This provision of the Constitution continued to be the law of the land until its amendment December 29, 1904. The amendment of December 29, 1904, required banking corporations to be organized under a generai law to be passed by the Legislature, requiring all capital stock subscribed and paid in full in cash before organization. Pursuant to this amendment the Legislature did pass a banking law in 1905. The organization of the pretended corporation in May, 1904, was contrary to and violated the clear prohibition of the Constitution, and was absolutely void ab initio. 1 Clark & Marshall, 246, note 156. As expressed by the United States' Supreme Court:

“An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County. 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 186; Hildreth v. McIntire, 1 J. J. Marsh. (Ky.) 206, 19 Am. Dec. 61.

As the pretended corporation, the Union Trust Company, was prohibited by law and is void, all contracts for subscription to the capital stock are void, and the notes given for the stock subscribed for are void. Neither law nor equity can) give validity to these void contracts, and no recovery can be had thereon. Scovill v. Thayer, 105 U. S. 143, 26 L. Ed. 968; Kampman v. Tarver, 87 Tex. 491, 29 S. W. 768. Contracts for creation of a corporation prohibited by law are against public policy. 12 L. R. A. 577, note 2.

The liability of subscribers to capital stock of corporations for unpaid subscriptions when the corporations are insolvent has been discussed in a great many decisions, and the very elaborate brief of appellant indicates some confusion therefrom. We believe there is practical harmony in all of them. The apparent conflict, we think, will disappear when it is borne in mind that they treat of stockholders in different kinds of organizations claiming to be corporations. Generally speaking, there seem to be four classes of such organizations, each class being governed by distinct principles of law; First. The corporation de jure. Second. The de facto corporation. Third. The organization pretending to be a corporation, where no attempt was made to incorporate, but which is not prohibited by law. R. G. D. § 49, note 9; Clark v. American Cannel Coal Co., 165 Ind. 213, 73 N. E. 1083, 112 Am. St. Rep. 217. Fourth. The pretended corporation) that is expressly forbidden by law — the prohibited corporation.

For stock in the de jure and de facto corporations, unpaid subscriptions are valid contracts. The subscribers are estopped to question the regularity of the corporation, and cannot be heard to plead fraud in the procuring of their subscriptions. Neither can the stockholders be held liable as partners or held individually for any debts of the corporation. The ex'ceptions to this last statement need not be discussed here.

The subscribers to the third class of organization, or association, are held to be partners, liable for all the debts of the association, unlimited by any agreement among themselves. They can deny the existence of the corporation, and those contracting with such an organization can deny the existence of a corporation.

The subscribers to the fourth class, the prohibited corporation, can deny its existence as a corporation. The subscription contracts and notes given therefor are absolutely void, and courts will not enforce such contracts. We do not mean to say that the members of a prohibited corporation do not owe to depositors or creditors all the money or property received by their organization. On the contrary, they owe it morally and legally, and ought to be made to pay, all indebtedness to the lawful owners. The contracts for such debts are valid and enforceable. But the contracts for subscriptions to the capital stock of a prohibited corporation are void. The Union Trust Company, of which appellant Davis is receiver, is a prohibited corporation.

The distinction between the rules of law to be applied to acts expressly forbidden by law, which are the rules to apply to organizations falling within class 4, and the rules applicable to acts authorized by law, and undertaken to be performed in compliance therewith, but irregularly performed, which are the rules to apply to de facto corporations, is illustrated by two cases decided by the Supreme Court of the United States, viz.: Chubb v. Upton, 95 U. S. 665, 24 L. Ed. 523, and Scovill v. Thayer. In the case of Chubb v. Upton, Assignee, there was an irregular increase of the capital stock of the corporation, but the increase was not prohibited by law. The court held that the unpaid subscription for a portion of the increase was collectible by the assignee for the creditors of the insolvent corporation, and that the irregularity of the increase could not be urged by the subscriber as a defense. Chubb v. Upton, 95 U. S. 665, 24 L. Ed. 523. In the case of Scovill v. Thayer, also by the U. S. Supreme Court, Scovill, as assignee of an insolvent corporation, sued Thayer for the balance on his unpaid subscription to an increase of the capital stock of the corporation. The increase was greater than double the authorized capital stock. The statute under which the corporation was formed limited the increase to double, in these words:

“Any incorporation may increase its capital stock to any amount not exceeding double the amount of the authorized capital.”

Thayer answered that the increase was contrary to law. The Supreme Court held that Thayer was not estopped to make such defense, and sustained it, holding that as the increase was prohibited by law, the stock was void. It conferred on the subscriber no rights, and subjected him to no liability. The court, distinguishing the Scovill-Thayer Case from the Chubb-Upton Case, uses the following language:

“We think the defendant in error is not es-topped to set up the nullity of the unauthorized stock. It is true that it has been held by this court that a stockholder cannot set up in-formalities in the issue of stock which the cor-, poration had the power to create. Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203; Chubb v. Upton, 95 U. S. 665, 24 L. Ed. 523; Pullman v. Upton, 96 U. S. 328, 24 L. Ed. 818. But those were cases where the increase of the stock was authorized by law. The increase itself was legal and within the power of the corporation, but there were simply informalities in the steps taken to effect the increase. These, it was held, were cured by the acts and acquiescence of the defendant. But here, the corporation being absolutely without power to increase its stock above a certain limit, no acquiescence of the shareholder can give it validity or bind him or the corporation. ‘A distinction must be made between shares which the company had no power to issue and shares which the company had power to issue, although not in the manner in which, or upon the terms upon which, they have been issued. The holders of shares which the company has no power to issue in truth had nothing at all, and are not contributors.’ 2 Lindley, pt. 138; and see Dathrop v. Kneeland, 46 Barb. (N. Y.) 432; Mackley’s Case, L. R., 1 Ch. D. 247.”

The issue of stock in the Chubb Case was not prohibited by law, and was a valid obligation, although irregular. Whereas, in the Thayer Case, the issue of stock was prohibited by law and void, upon which no liability could be enforced. This same distinction is expressly recognized and declared to be the law in Texas by the Supreme Court of Texas, in the opinion by Chief Justice Gaines in Kampman v. Tarver, 87 Tex. 491, 29 S. W. 768.

The special act claimed as a charter for the Union Trust Company ceased to exist April 18, 1876. On May 18, 1904, the corporators could not have organized the Union Trust Company as a de facto corporation, because such a corporation as was attempted was prohibited by the Constitution. Const, art. 16, § 16. The law is sufficiently expressed in Jones v. Aspen Hardware Co., 21 Colo. 263, 40 Pac. 457, 29 L. R. A. 143, 52 Am. St. Rep. 220:

“It is also well settled that to constitute a de facto corporation there must be either a charter or a law authorizing the creation of such a~corporation, with an attempt in good faith to comply with its terms, and also a user or attempt to exercise corporate powers under it. Duggan v. Colorado Mortg. & Investment Co., 11 Colo. 113 [17 Pac. 105]; Bates v. Wilson, 14 Colo. 140 [24 Pac. 99]. A de facto corporation can-never be recognized in violation of a positive law. This principle, which seems to be supported by all the authorities, is thus stated by Morawetz on Private Corporations, § 758: ‘If the formation of a corporate association is not only prohibited by this general rule of the common law, but is also in violation of some principle of morality or public policy, or a positive statutory prohibition, the parties forming such association will not be legally bound by their agreement of membership, and the courts will not recognize the association, either as among its members or against third parties.’ ”

The contract of the subscriber to purchase and pay for capital stock in a pretended corporation prohibited by the Constitution is absolutely void ab initio, and is contrary to public policy. Neither a court of law nor of equity will give force and effect to such contracts. 12 L. R. A. 577, note 2.

The conclusion reached by us in this case is not in conflict with the opinions in the cases of Burleson v. Davis, 141 S. W. 559, and Davis v. Burns, 173 S. W. 476, for in those cases no attack was made upon the legality of the pretended corporation, known as the Union Trust Company, on the ground that the offer granted by act of the Legislature had not been accepted and organization perfected prior to the adoption of the Constitution of 1876. The same fact was found by Judge Meek, as expressed in his opinion in the case of In re Western Bank & Trust Co. (D. C.) 163 Fed. 713. This case involved the same kind of a special act of the Texas Legislature as the one used for Union Trust Company, and was passed about the same time. In none of the three eases mentioned was the acceptance of the acts and organization thereunder contested. The finding that the charter was accepted and the corporation organized prior to the adoption of the Constitution prohibiting such corporation distinguishes those three cases mentioned from the one at bar.

To repeat: Our conclusion is that the special act of 1871 was not accepted and no organization effected prior to April 18, 1876; that the offer contained in that special .act was withdrawn and the act repealed April 18, 1876, when article 16, § 16, of the Texas Constitution became effective; that from April 18, 1876, until December 29, 1904, such a corporation as the Union Trust Company pretended to be was expressly prohibited by article 16, § 16, of the Constitution; that contracts for stock in such a prohibited corporation were contrary to public policy, because contrary to law and were void. In the suit at bar recovery is sought only on the void contracts for purchase of stock, which recovery was correctly denied.

Considering specially appellant’s assignments, we find those numbered from 1 to 71, inclusive, are precisely the same, except each contains the name of a different defendant.

The seventy-first assignment is submitted as a proposition, followed by 11 additional propositions. The contention urged therein is, substantially, that the court erred in not rendering judgment against subscribers on their subscription contracts, inasmuch as the corporation was either a de jure or de facto corporation, the subscription contracts valid, and the defendant subscribers were estopped to deny the validity of the contracts.

The jury found that the special act or charter was not accepted prior to 1876, and there is evidence to support that finding. The charter not having been accepted prior to the adoption of the Constitution, April 18, 1876, was repealed by the Constitution, and the pretended organization, was prohibited-by law. The subscribers were not estopped to deny its incorporation, nor to deny liability upon their void subscription contracts.

Article 1138, Revised Statutes of 1911, does not apply to pretended corporations expressly forbidden by law, but only refers to ostensible or de facto or de jure corporations.

The authorities cited by appellant do not announce any doctrine contrary to our conclusions in the case at bar, and we do not deem it necessary to review them in this opinion. As an illustration that they do not apply to the facts of the instant case, we call attention to the case of McCarthy v. Lavasche, 89 Ill. 271, 31 Am. Rep. 83, quoted twice in appellant’s brief. That was a suit by a creditor against one of the stockholders to enforce the implied contract to repay the money deposited. That contract is not void, and the stockholder was legally and morally bound to repay that money. The present suit is not to enforce the depositors’ contracts, but to enforce the void contracts for capital stock in a prohibited corporation.

The first 71 assignments are overruled.

The assignments 72 to 82 complain of error resulting from1 submitting the fourth and fifth special issues to the jury. The fourth and fifth questions and answers were:

“Question 4. Did the Union. Trust Company, by any means, acquire the reputation of doing business on any fixed amount of capital stock between July 13, 1909, and January 10, 1910?
“Question 5. If you answer ‘Yes,’'to question 4, then state what was the highest amount of said capital stock said company was reputed to have between said dates?
“Answer to question No. 4, Yes.”
“Answer to question No. 5, $200,000.”

In view of the answer of the jury that the charter had not been accepted prior to the adoption of the Constitution of 1876, and the disposition to be made of the suit thereupon, questions 4 and 5 were entirely immaterial, and the assignments based thereon are accordingly overruled.

Assignments eighty-third to the ninety-eighth, inclusive, complain that the trial court erred in refusing to instruct the jury to find for appellant, plaintiff, and in refusing to render judgment for appellant, plaintiff, non obstante veredicto. The reasons urged are that the undisputed evidence showed that the charter under which the Union Trust Company was organized had been accepted prior to 1876, and that a de jure or a de fac-to corporation had been brought into existence and was in good faith operated. There was evidence to support the finding of the jury that the charter had not been accepted prior to the adoption of the provision of the Constitution prohibiting such corporations, as there were no vested rights at the time the Constitution repealed the special act. Hence these assignments are overruled.

Assignments 99 to 161, inclusive, present similar questions raised in the previous bunch of assignments numbered 72 to 98, and for similar reasons are overruled.

The errors complained of in assignments 162 and 163, if errors, are immaterial in view of our opinion of this case.

Assignments 174 to 177, inclusive, further than specializing errors in favor of defendant Burd, present no other errors than those presented in assignments 99 to 161, and are overruled for the same reasons by which they were overruled, and for the same reasons assignments 178 and 179 are overruled.

None of the other assignments, numbered from 180 to 208, present errors that are material, if errors at all, and are accordingly overruled.

Again we say the subscription contracts sued upon in the case at bar were absolutely void, and cannot be made valid by estoppel or in any other way.

A prohibited charter can be attacked collaterally. The charter herein involved wa3 a prohibited one. The pretended corporation was malum prohibitum. The subscription contracts, being void, cannot be enforced. If the members of the prohibited corporation received money from depositors, they must return it to the true owners. But questions of that nature do not arise in this ease. Here it is simply a question as to the validity of the stock subscriptions in suit, and, as that cannot be sustained, the judgment of the trial court must be affirmed. Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 190.

Affirmed.

On Motion for Additional Conclusions of Eact.

Appellee J. G. Burney’s motion for additional conclusions of fact is granted.

The seventh special issue submitted to the jury was:

“Question 7. Was the subscription of J. G. Burney for 400 shares of stock, dated September 30, 1909, ever accepted by the Union Trust Company?

—to which question the jury answered, “No.”

There was sufficient evidence to sustain the finding of the jury upon that issue.
      <@=>For other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes