author: DAVIDSON, P. J.

text:
    VASTINE v. STATE.
    (No. 5127.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.
    Rehearing Denied Nov. 13, 1918.)
    1. Criminal Law <&wkey;1099(7) — Appeal — Statement ox Facts — Diligence—Evidence.
    Showing as to cause of failure to have statement of facts held not to establish diligence, entitling accused to reversal.
    2. Criminal Law &wkey;>1099(7) — Appeal — Statement ox Facts — Diligence.
    Where stenographer, owing to shortage of help, failed to prepare statement of facts within required time, in order to bring accused within rule of diligence, he must have resorted to some means at hands of judge to compel stenographer to make out statement of facts within time.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Maudie Vastine was convicted of assault with intent to murder, and she appeals.
    Affirmed.
    Mays & Mays, of Ft. Worth, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder; her punishment being assessed at two years’ confinement in the penitentiary.

The record contains neither a statement of facts nor bills of exception. There is an affidavit filed by appellant’s attorneys, and also one by the county attorney, Hon. Marshall Spoonts, explanatory of the failure to produce a statement of facts in the record. The county attorney states that he was not personally acquainted with the details in the manner of procedure subsequent to the trial of the case, but knows that Chas. Mays sought to procure a statement of facts in order to proceed with the appeal; that before he obtained same the transcript was filed in the Court of Criminal Appeals, whereupon, in order to give the stenographer further time to prepare the statement of facts, he had the transcript withdrawn from that court, as he understood that Mr. Morrison had not had sufficient time to get up the statement of facts. He says:

“I am further reliably informed that the defendant paid $50 in order to procure such statement of facts.”

Mr. Mays, of counsel for appellant, states that former Judge Swayne defended the case, and went to .Oklahoma and was taken sick; that he (Mays) then undertook to complete the record by obtaining a statement of the facts, and called the stenographer’s attention to it. The stenographer assured him it would be ready right away, and he would hand same to the affiant. He says:

“I received this assurance practically from day to day until I learned that the transcript had been sent to the Court of Criminal Appeals at Austin. When I learned this, Hon. Marshall Spoonts, county attorney, at once agreed to have the transcript withdrawn, in order to give the stenographer more time to prepare such statement of facts, and agreed to have same filed in due and legal time, so as to have same properly considered by the higher court; that such transcript was withdrawn by Mr. Spoonts, and I continued to seek such statement of facts from the stenographer, each time with the assurance . that same would be ready at once; that in the meantime I paid the stenographer the sum of $50, the exact date not being remembered by me. In view of an understanding and agreement that the statement of facts should be filed so as to show in due time, and that I would not lose the right of appeal, I continued my efforts to obtain same until I again learned that the transcript had been again filed by the district clerk in the Court of Criminal Appeals and said cause set down for trial October 9, 1918.”

■ He states that appellant has been deprived of her statement of facts, and therefore of the right of appeal in said cause; that he has never been furnished with a statement of facts from the stenographer, though having constantly relied upon his promises. The stenographer was busy in court, and some of his help was upon the draft board, during such time. He further states:

“I used all due and reasonable diligence to obtain such statement of facts; in fact, I believe I used much more than ordinary diligence, all of which material facts are corroborated by Mr. Spoonts, by his affidavit to the motion herein filed. That after the time had legally elapsed to file same, the stenographer constantly promised that he would prepare same and see that it was filed in due time, and that he had not done so sooner for he had been deprived of— I did not seek an order extending the time to file same, for the reason that I daily and constantly depended upon the stenographer and his assurances that such statement of facts would be ready at once, and in further view of the fact that it was agreed and understood that same should be marked as though filed in due time, and I wholly relied thereon, to all of which I hereby verify.”

The affidavit of Mr. Spoonts was made on August 16, 1918, and that of Mr. Mays on the 28th of September, 1918. This is the showing made by counsel to have this cause reversed for want of a statement of facts. We are of opinion that the showing is not sufficient. The court at which the case was tried convened on October 1, 1917, and adjourned January 5, 1918. There was a 60-day order entered in which to prepare the statement of facts and bills of exception. The motion for new trial was overruled on October 15, 1917, and it was then that the 60-day order was entered. The record was filed in the Court of Criminal Appeals on June 28, 1918, nearly 6 months after the trial court finally adjourned the previous January. The 60-day order, then, if counted from the adjournment of court on the 5th of January, would have expired early in March. There was no extension of time asked, nor was any application made to the district judge to compel the stenographer to make out a statement of facts. When the $50 was paid the stenographer is not shown; in fact, counsel states he did not remember the date.

la order to Rave brougRt appellant within the rule of diligence as announced by this court in quite a number of cases, it would have been necessary to Rave resorted to some means at the hands of the judge to compel the stenographer to make out a statement of facts, and a failure in securing the order and getting a statement of facts would have presented the case from a different viewpoint. This and kindred questions Rave been discussed several times by this court, and under all these decisions this showing is not sufficient. See Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229; Roberts v. State, 70 Tex. Cr. R. 588, 157 S. W. 1193; Chavario v. State, 72 Tex. Cr. R. 240, 161 S. W. 972; Archer v. State, 74 Tex. Cr. R. 524, 168 S. W. 857; also Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483.

We are therefore of opinion that the suggestion of appellant to reverse the judgment because of the want of a statement of facts does not bring it within the law, and must be overruled. This being the condition of the record, there are no matters presented which require a consideration without the statement of facts.

The judgment will therefore be affirmed.
      d&wkey;For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    JACKSON v. STATE.
    (No. 5155.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. Criminal Law <&wkey;1066 — Appeal—Exceptions — New Trial.
    Grounds of motion for new trial, not verified by exceptions, cannot be considered.
    2. Criminal Law «Ss^lOOl1/^ — Appeai^Cer-TIITCATION OF GROUNDS.
    Grounds for new trial that appellant had been influenced to plead guilty under threats of other prosecutions cannot be considered in the absence of verification.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    Walter Jackson was convicted for burglary, and he appeals.
    Affirmed.
    See, also, 206 S. W. 192.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for burglary, the punishment being assessed at three years’ confinement in the penitentiary.

The record is without a statement of facts or bills of exception. There was a plea of guilty, and the judgment shows a proper warning. To this there seems to ¿ave been no objection; at least, if so, it is not brought up in the record. The grounds of the motion for new trial are simply stated as grounds, and are not verified by exceptions, and pertain mainly to the insufficiency of the evidence and the admission of testimony which appellant alleges to have been erroneous. It also alleges appellant had been advised and influenced to plead guilty by a deputy sheriff who had threatened, if he did not do so, they would prosecute him in quite a number of eases. These are not verified, and therefore cannot be considered.

The judgment is affirmed.
      ©sskor other cases see same topic and KEY-NUMBER’ in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    JACKSON v. STATE.
    (No. 5156.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    Appeal from District Court, Rockwall County ; Joel R. Bond, Judge.
    Walter Jackson was convicted of burglary, and he appeals.
    Affirmed.
    See, also, 206 S. W. 192.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed from a conviction of burglary. There is neither a bill of exceptions nor statement of facts. In the absence of these, nothing is raised which can be considered.

The judgment is affirmed.


author: MORROW, J.

text:
    PEREZ v. STATE.
    (No. 5147.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. Criminal Law &wkey;>1170(4) — Harmless Error — Exclusion of Evidence.
    Accused could not complain of the exclusion of testimony of his own witness, where later such witness was fully examined with reference to the same facts.
    2. Criminal Law <&wkey;1092(ll) — Bill oe Exceptions.
    The assignments of error in a criminal prosecution should be brought up by bills of exception, verified by the trial court or proved up by bystanders, in view of Vernon’s Sayles’-Ann. Civ. St. 1914, art. 2058, and Vernon’s Ann. Code Or. Proc. 1916, art. 744.
    Appeal from District Court, Brooks County; V. W. Taylor, Judge.
    Pedro Perez was convicted of unlawfully keeping, etc., a gaming table, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The indictment charged violation of article 551, Vernon’s P. C., making the specific allegation that appellant “did then and there unlawfully keep and exhibit, for the purpose of gaming, a gaming table and bank.” The conviction was for a felony. The evidence shows that appellant was dealing a game called “monte,” and the prosecuting witness played at the game, while appellant was dealing, and lost money in betting. The decisions construing the statute will be found in Vernon’s Crim. Stats, vol. 1, pp. 281, 282. See Morris v. State, 57 Tex. Cr. R. 164, 121 S. W. 1112.

There is but one bill of exception, which apparently relates to the refusal of the court to permit appellant to address a question to his own witness as follows:

“I will ask you this question: If he says that Pedro Perez, Pancho Perez, and you heat him up all they wanted and to their satisfaction, is he mistaken?”

The relevancy of this question in relation to tlie ease is not made apparent by the bill. The court in his qualification says in substance that he did not sustain the objection to the testimony which would have resulted from an affirmative answer, but suggested to counsel the reframing of his question, and that counsel, acting upon this suggestion, did develop all the facts. The bill says that the answer that was expected was as follows:

“He certainly is mistaken, because I never hit or beat him at all; neither did Pedro Perez or Pancho Perez hit or beat him at all; and, if he says that, it is not true.”

It appears from the statement of fact that the witness to whom the appellant addressed the question was introduced by the defendant and examined fully with reference to the various incidents of the transaction in which the gaming took place, and that he stated his version of the facts to which the inquiry was directed.

There are three propositions, denominated “Assignments of Error,” signed by attorney for appellant, but not verified by the court. They present no matter that would require reversal, and are not presented in a manner to raise any question for review. Such matters should be brought up by bills of exceptions, verified by the trial court or proved up by bystanders. See article 2058, Vernon’s Sayles’ Ann. Civil Statutes; article 744, Vernon’s Ann. Code Cr. Proc. 1916.

We find no error in the record, and the judgment is affirmed.


author: DAYIDSON, P. J.

text:
    TEAGUE v. STATE.
    (No. 5098.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. HOMICIDE <&wkey;303 — INSTRUCTIONS—DEFENSE of Property.
    In prosecution for murder and negligent homicide at night, court should have instructed jury that if defendant shot intentionally to kill or wound deceased when taking defendant’s sugar cane, or within gunshot of where it was taken, the killing was justifiable under the statute, defendant’s testimony raising the issue.
    2. I-Iomtcide &wkey;>124 — Justifiable Killing of Thief.
    Statute justifies killing of thief while property is being stolen at night or thief is within gunshot of place where taken.
    3. Homicide <&wkey;307(2) — Instruction — Aggravated Assault.
    In prosecution -for murder or negligent homicide in first degree, court should have instructed on question of aggravated assault on theory that, if defendant shot to hit, the No. 4 shot with which his gun was loaded, in combination with the distance at which he thought he was from deceased, were* not calculated to kill. .
    4. Homicide <&wkey;3 —Shotgun as “Deadly Weapon.”
    A shotgun usually can be considered a. “deadly weapon,” but not necessarily so.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    5. Assault and Battery <&wkey;57 — Firing Gun to Frighten.
    If defendant shot merely to frighten deceased, not to injure him, he committed a simple assault only, under Pen. Code 1911, § 1013, providing that the use of any dangerous weapon in an angry or threatening manner to alarm another is an assault.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assault.]
    6. Homicide &wkey;>74r — Negligent Homicide— “Lawful Act.”
    A “lawful act,” within the statute providing that if any person in the performance of a lawful act by negligence and carelessness shall cause the death of another, he is guilty of negligent homicide of the first degree, is an act not forbidden by the penal law, and which would give no just occasion for a civil action.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Lawful Act.]
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    John Teague was convicted of negligent homicide in the first degree, and he appeals.
    Judgment reversed, and cause remanded.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of negligent homicide in the first degree, his punishment being assessed at a fine of $750.

The facts, in substance, show that appellant and a relative by the name of Teague had gone out the night of the homicide “possum hunting.” The deceased, Long, and a friend had also gone “possum hunting,” but not in connection with appellant and his relativa Appellant and another party, who was also related to him, owned a field or patch of ribbon cane which they had cut and piled for the purpose of making syrup or molasses. While out hunting they were near this ribbon cane when deceased and his friend came, took a lot of the cane, and went away. Appellant’s theory of it was that when about 75 yards from where they took the cane they sat down and began eating or chewing it, with a lantern 'between them. The state contends that it was 200 yards or more from the place they took the cane to where the shooting occurred. The testimony shows that appellant and deceased approached within about 60 yards, and that appellant stated that he was going to shoot to 'scare the parties, and that he did shoot twice with a shotgun. The shot used were what the witnesses called “squirrel shot” or “No. 4.” Appellant’s testimony is to the effect that he thought they were about 90 or 100 yards from them. The state’s testimony contends they were 54" steps from the parties at the time of the shooting. The state’s evidence shows immediately before the shooting a dog with the deceased and his friend growled and they put out their lantern, and just as they were putting it out, or had put it out, the shots were fired. Appellant’s testimony shows that he shot only to frighten, and that he did not lcnow until the next day that he had shot anybody. The indictment charged him with murder. The court submitted murder and negligent homicide of the first degree, the jury convicting under the latter charge.

Several questions are suggested in the way of exceptions tq the court’s charge and the refusal to give special requested instructions. Among others, it is contended that appellant should have had the benefit of a charge to the- effect that, if he killed deceased when taking the property, or within gunshot of where it was taken, it would be justifiable under the statute. If he shot intentionally to kill or to wound under those circumstances, we are of opinion, under his testimony, this issue was raised, and the court should .so have instructed the jury. The statute justifies a killing while the property is -being stolen at night, or where the party taking it is within gunshot distance of the place where taken.

It is also 'contended that appellant should have had the benefit of a charge on the defendant’s theory that he shot to frighten and not to injure. He also contended that he should have had the -benefit of a charge on aggravated assault on the theory that, if he shot to hit, the means used were not ordinarily calculated to kill. His testimony was that he thought he was 90 or 100 yards from the parties. The state shows he was 54 steps. The shot used were No. 4 or squirrel shot. We are of opinion that the question was raised; that is, by the means used it did not evidently appear he intended to kill. A shotgun usually may be considered a deadly weapon, but not necessarily so. Had the gun been loaded with buckshot at that distance, and he shot to kill, then the issue would be raised that he shot and killed justifiably because deceased had stolen the property and was within gunshot range. On the other hand, we would take it as a correct conclusion that ordinarily at that distance- squirrel shot would not be calculated to kill. Several s-hot struck the body of deceased, but none of them made any particular impression upon him except one shot which entered his eye, and from which he subsequently died. We are of opinion that the court was in error in not charging on aggravated assault upon the theory that he did not intend to kill. Upon another trial the Issues of aggravated assault and simple assault should be submitted by the court as basis for conviction.

It is also a contention of appellant that he should have had the benefit of the doubt in shooting not for the purpose of killing. If he shot to frighten, this would be a simple assault under article 1013, P. C., which provides that:

“It follows that one who is, at the time of making an attempt to commit a battery, under such restraint as to deprive him of the power to act, or who is at so great a distance from the person assailed as that he cannot reach his person by the use of th means with which he makes the attempt, is not guilty of an assault. But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.”

There are quite a number of decisions collated by -Mr. Branch in his valuable Annotated Penal Code on page 916, to the effect that if defendant unlawfully presents a dangerous weapon, or the semblance thereof, or unlawfully shoots the weapon, with intent only to alarm or scare, or otherwise unlawfully uses it in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, he is guilty of a simple assault. Without collating these cases, we simply refer to said page of Mr. Branch’s work. Under this view of the law negligent homicide of the first degree was not in the case. The statute provides that if any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty of negligent homicide of the first degree. A “lawful act” is one not forbidden by the penal law, and which would give no just occasion for a civil action. If appellant shot to frighten, and used a dangerous weapon, this, under article 1013, P. C., would be an assault and therefore the shooting would not be negligent homicide of the first degree. We are of opinion that a conviction for negligent homicide of the first degree is not sanctioned by this testimony. The jury acquitted of murder; therefore it was not an unlawful killing. They must have found under the charge of the court that the shooting was lawful in order to have found appellant guilty of negligent homicide of the first degree. If the shooting was unlawful, then negligent homicide of the first degree was not a question in the case. We are of opinion this was an assault under the testimony of the appellant to the effect that he shot to frighten, but with no intention of killing. This would be under the statute, as we understand it, simple assault, which would be an unlawful act and a violation of the statute defining an assault. ■

For the reasons above stated, this judgment is reversed and the cause remanded.
      <&wkey;>For oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MANSFIELD v. STATE.
    (No. 5153.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. Intoxicating Liquors <&wkey;>146(3)—Crim-inal Prosecution.
    Where defendant gave prosecuting witness a bottle of whisky and received in payment money that had been shortly theretofore given prosecuting witness by a companion for that purpose, defendant was guilty under counts charging a sale directly and indirectly in violation of Pen. Code 1911, art. 611, as amended by Acts 35th Leg. Fourth Called Sess., c. 5.
    2. Griminal Law <&wkey;938(3)—New Trial —• Newly Discovered Evidence.
    The refusal of a new trial on the ground of newly discovered evidence did not wari'ant reversal, where it did not appear that the facts set out in the affidavits were unknown to defendant before the trial, at which the witnesses testified, nor that such evidence would have produced a different result.
    3. Criminal Law <&wkey;507(4) — Accomplice Testimony.
    The fact that witnesses in a liquor prosecution were military police, and that the transaction was pursuant to their efforts to capture bootleggers, did not render their evidence insufficient upon the ground that they were accomplices.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Tom Mansfield was convicted of selling intoxicating liquors without a license, and he appeals.
    Affirmed.
    E. B, Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the offense of selling intoxicating liquors without a license, and punishment assessed at confinement in the penitentiary for two years.

The prosecution is under article 611 of the Penal Code as amended by chapter 5 of Acts of the Thirty-Fifth Legislature, Fourth Called Session, which amendment makes the sale directly or indirectly of intoxicating liquors in quantities less than a gallon by any person other than a licensed dealer a felony punishable by confinement in the penitentiary from two to five years.

The indictment charges a sale by appellant directly to Jerry Thomas, and in another count a sale by appellant indirectly to Jerry Thomas of a pint of whisky. Thomas and one Upchurch were together. Thomas testified that appellant handed him a bottle of whisky and that the witness gave appellant the money for it; that before he and Upchurch were able to drink any of it an officer took possession of it. Upchurch testified to substantially the same thing. Both of them identified the bottle of whisky which was produced at the trial. The officer referred to also identified the whisky, and testified that he did not see the money pass but saw the whisky pass.

Both counts in the indictment were submitted to the jury, and a general verdict was rendered.

On a motion for new trial, appellant produced the affidavits of the two witnesses Thomas and Upchurch to the effect that they were together at the time the whisky was purchased from appellant; that the money paid appellant belonged to Upchurch, who handed it to Thomas, and Thomas in his affidavit says that appellant approached him and Upchurch and asked them if they wanted to get something to drink, and, receiving an affirmative answer, the witness handed appellant $1.50, and he took a bottle of whis-ky out of his pocket and handed it to the witness; that the $1.50 had been given him by Upchurch with which to buy some whis-ky. Upchurch’s affidavit is substantially the same. Appellant, based on these affidavits, contends that this is newly discovered evidence and of such a material character as to require reversal, in that it would appear therefrom that the sale was not made to Thomas, the person named in the indictment. It is not made to appear that the evidence was newly discovered; that is, it does not appear that the facts set out in the affidavits were unknown to appellant before the trial. Both of- the witnesses making the affidavits testified on the trial. Nor do the facts set up in the affidavits sustain the contention that they would have produced a different result.

The transaction as detailed in the affidavits would sustain the allegations in the indictment.

The proposition that there is evidence that Thomas and Upchurch were military police, and that the transaction was pursuant to their efforts to entrap bootleggers, does not render the evidence insufficient upon the ground that they were accomplices. See Walker v. State, 72 S. W. 401; also, Vernon’s P. C. p. 49. There is no complaint of failure to charge upon the law of accomplices’ testimony, and, if that rule applied, the testimony of the police officer furnished corroboration.

Finding no errors in the record, the judgment of the district court is affirmed.
      <&wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte WILLIAMS.
    (No. 5175.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.
    Rehearing Denied Nov. 13, 1918.)
    Habeas Corpus <&wkey;>113(9)—Appeal—Bill op Exceptions.
    Contention of petitioner in habeas corpus that he objected to certain evidence is not available on appeal, it not being shown by bill of exceptions.
    Appeal from District Court, Falls County; W. A. Patrick, Judge.
    Habeas corpus by Frank Williams to obtain bail. Bail denied, and petitioner appeals.
    Affirmed.

      William Kennedy, of Groesbeck, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was duly indicted for the murder of Hal St. Clair. He sued out a habeas corpus seeking bail. The court heard the evidence and denied bail, from which he appeals.

There is no bill of exceptions in the record. It is stated in the statement of facts that appellant objected to certain testimony; but there is no bill showing this, and nothing showing that the court approved any such bill, or any bill at all. The evidence heard was amply sufficient to justify the court to deny bail.

The judgment is affirmed.


text:
    PARSONS v. STATE.
    (No. 5157.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    Burglary <s=>15 — Consent of Owner — Bona Eide Belief.
    One accused of burglary was not guilty, if he in good faith believed he had the consent of the owner to enter for the purpose for which he did enter, notwithstanding the owner testified that accused did not have his consent. '
    ' Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Bud Parsons was convicted of burglary, and he appeals.
    Reversed and remanded.
    R. B. Rust, of Eastland, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The evidence for the state discloses that the alleged owner of the property was named Louis Venturi; that he owned what he called a cellar, which was a house within the contemplation of the law as' described in the evidence. The state’s evidence also discloses that appellant, in connection with another, entered this house and took from it beer that was owned by Venturi; that it was done without the consent of Venturi, and that in doing so they opened or broke the door, and by this means entered the house and took the property. This, in a nutshell, is the state’s case.

Appellant’s evidence is to the effect that he had permission of Venturi to enter the house and get the beer in the absence of Ven-turi; that in pursuance to this authority he did enter the house and obtain the beer, and subsequently offered to pay for it, which was declined by Venturi. His testimony also suggests the fact that the door of the house was open, and there was no breaking.

The court charged the jury to the effect that, if the house was entered without the consent of Venturi, they would convict. With 1 reference to his theory of the case the court instructed the jury as follows:

“The defense relied on by the defendant in this case is that he had permission of Louis Venturi to go into the said house and get beer in the event that said Louis Venturi was absent, and that he entered said house with the permission, consent, and invitation of said Louis Venturi, and that said door to the said house was open when he entered said house for the purpose of getting some beer.
“Now, if you believe from the evidence that said Louis Venturi invited said defendant to enter said house in his absence for the purpose of getting beer, even though you find the door to said house was closed, you will acquit the defendant ; or, if you believe frqm the evidence that Louis Venturi did not invite, or consent for, the defendant to enter said house and get said beer, yet if you further believe that the door or doors to said house were open at the time the defendant did enter the same, you will acquit the defendant, because there would be no breaking under the law.”

Various objections were urged to this charge, and a special charge requested, which was refused. The special charge is as follows:

“You are further instructed that, unless you find beyond a reasonable doubt that the defendant did break and enter the house mentioned in the indictment belonging to Louis Venturi, without the consent of said Louis Venturi, or if you have a reasonable doubt as to whether the defendant either had permission from said owner to so enter said house, if he did, or was laboring under the impression and believed he had so been invited to so enter the. same, or if you have a reasonable doubt that he acted upon such invitation to so enter, if any, and if he did so enter, then in that event the defendant would not he guilty of burglary, and in such event you will find the defendant not guilty.”

We are of opinion that the court erred in giving the instruction he did give, and also erred in not giving appellant’s instruction. It is not a question of belief for the jury, so much as it is the belief of the defendant as to his authority. The defendant may not have had specific permission to enter the house, as Venturi testified he did not; yet if defendant believed he had such authority, and acted, upon it, he would not be guilty. The case must be looked at from defendant’s standpoint, and not from the standpoint of the jury. We are of opinion this changed the rule of burden of proof, but in any event appellant had the right to havé' the jury pass upon the ease from, his viewpoint, and not from the jury’s belief. It is not the rule of law that the jury should believe that the defendant entered the house without authority. It is the jury’s business and province to ascertain what defendant believed about it at the time, and from what viewpoint he understood the matter in his action. The jury might believe that appellant did not have the authority and take Venturi’s version of it, yet if defendant believed he had the authority the jury should be instructed that under such circumstances he would not be guilty of burglary. If he believed he had permission to take the property from the house, he would not be guilty of burglary; the fraud would be wanting.

Believing the court was in error in giving the main charge, and also in error in refusing the special instruction, which we think submitted the law of the ease, this judgment will be reversed, and the cause remanded.
      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    YOUNG v. STATE.
    (No. 5149.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. Forgery >&wkey;29(2) — Indictment—Averring Exteinsic Pacts.
    Where alleged forged instrument did not show on its face how it might work fraud, the indictment should contain averments of extrinsic facts disclosing how the instrument would create a liability.
    2. Forgery &wkey;>29(2) — Indictment—Aveering Extrinsic Pacts.
    Indictment alleging that defendant sent a telegram reading, “Send jewelry here. 304 Main Ave.,” signed by the name of another, without averments of extrinsic facts, was insufficient, since instrument did not disclose how a liability might arise.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Adelbert D. Young was convicted of forgery, and he appeals.
    Reversed and cause dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for forgery. There is no statement of facts and no bill of exceptions. Tlie only question raised which can be considered is the sufficiency of the indictment.

Evidently, this indictment was preferred under article 924, Pen. Code, which is:

“He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.”

There are other statutes defining what is forgery, which' are unnecessary to now mention because none of them are applicable to this indictment.

The formal allegations in the indictment herein as to the grand jury, court, etc., follow the law and precedents in that regard. The charging part of the indictment is this:

That the appellant, “without lawful authority and with intent to injure and defraud, did unlawfully and fraudulently make a certain false instrument in writing purporting to be the act of another, to wit, the act of one J. E. Landon, which said false instrument in writing was then and there of the tenor following, to wit:”

Then the telegram, the alleged forged instrument, is copied. It was evidently on the form used by the telegraph company for all persons telegraphing to write theirs upon, and, after the message itself, other printed matter usually on said forms. This printed heading and ending we omit because unnecessary. The alleged forged telegram itself is dated June 28, 1917, and is this:

“John Friedman, 816 St. Charles Street, Brownsville, Tex. Send jewelry here. 304 Main Ave. [Signed] J. E. Landon.”'

And the indictment immediately following the copying of this telegram concludes “against the peace and dignity of the state.”

No innuendo or extrinsic averments whatever were made. Appellant made a motion to quash the indictment on these grounds: (1) That it fails to charge any violation of the laws of the state. (2) It does not appear therefrom that the said purported forged instrument if true would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred, or in any manner have affected, any property whatever. (3) The purported forged instrument cannot with or without innuendo and explanation be the basis of an indictment for forgery. (4) It pleads its evidence, in that it attempts to set out the purported forged instrument according to its tenor when the original instrument itself is inserted.

In 2 Branch’s An. P. C. § 1389, this correct proposition is laid down:

“If the instrument in writing alleged to be forged is such on its face as, if true, it creates or increases a pecuniary obligation such as a check, draft, note or other ordinary commercial instrument and will afford the basis of a civil action without resorting to extrinsic testimony, then a charge of forgery can be based thereon without any extrinsic averments.”

To this quotation from Mr. Branch we add, as covered by the last of said article 924, this: If the said instrument would have transferred or in any manner affected any property on its face without resorting to any extrinsic testimony, then a charge could be based thereon without any extrinsic aver-ments.

The telegram in this case does not come within either of the rules just stated.

In the same section, Mr. Branch lays down another rule in another paragraph, as follows:

“If the instrument in writing alleged to be forged is not an ordinary commercial instrument, the indictment should explain by proper averments the connection the different parties had with the instrument and explain the meaning of all doubtful terms.”

And in still another paragraph he says:

“If the instrument in writing alleged to be forged is not pne of the ordinary instruments used in commercial transactions, but is contractual in form and depends on extrinsic facts to create or defeat a liability, such extrinsic facts should be alleged in the indictment.”

Under these rules stated by Mr. Branch, he cites many cases decided by this court sustaining his text.

We cannot tell from said telegram without extrinsic averments how it comes within our forgery statute. On its face, if it had been true, it cannot be told bow it would have created, increased, diminished, discharged, or defeated any pecuniary obligation; nor that it would afford the basis of any civil action; nor that it would have transferred or in any manner have affected any property, without resorting to extrinsic allegation and testimony. If there were any facts which would meet the requirements of the statute and the rules stated, then it was necessary for the pleader to allege them, and without them the indictment is fatally defective.

Therefore the judgment must be reversed, and the cause dismissed, which is ordered.
      other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    BARLOW v. STATE.
    (No. 5159.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    1. Seduction <&wkey;>45 — Evidence — Sufficiency.
    In prosecution under Pen. Code 1911, art. 1447, evidence held to sustain verdict of guilty of seduction.
    2. Criminal Law <S&wkey;1160 — Verdict — Setting Aside on Appeal.
    Verdict of guilty approved by trial court will not, unless clearly wrong, be disturbed on appeal, where there is sufficient evidence, if believed, to sustain it; the trial court having given a full, apt, and complete charge.
    Appeal from District Court, Van Zandt County; Joel R. Bond; Judge.
    R. T. Barlow was convicted of seduction, and appeals.
    Affirmed
    E. B. 'Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for seducing Miss Geneva Lester, and was assessed the lowest punishment.

There is no bill of exceptions. The only question for decision is appellant’s motion for a new trial, wherein he claims “the testimony is too doubtful and unsatisfactory for the judgment of conviction to stand.”

The statute is;

“If any person by promise to marry, shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, he shall be punished,” etc. Article 1447, Pen. Code.

The offense is alleged to have been committed on or about June 20, 1913. Appellant was indicted October 17, 1913. He was not tried until in May, 1918, for the reason that as soon as he learned, early in September, 1913, that he had gotten- the seduced girl pregnant and she and her mother were urging him to marry the girl right away in accordance with his promise of marriage, he fled from this state, going to California, and that, while the officers hunted for him and tried to locate him all over the state, they did not succeed in arresting him until about January 1, 1918.

The seduced girl, Geneva Lester, testified: That appellant began waiting upon her — kept company with her — in the spring of 1911, when she was 16 years of age, or just about 17 years of age. That he waited on her at that time some 3 or 4 months and she quit going with him then because of his misconduct. He wanted to put his arms around her and kiss her. That he tried to put his arms around her and kiss her a number of times. That she told him not to, and that is the reason she then quit going with him. After an interval of some weeks or months, he began going with her again, and after they had gone together again some 3 or 4 months she again quit going with him because of his misconduct. “He commenced sort of like he did before, tried to put his arms around me and then tried to go further.” That all these times he was going with her he made love to her. That in October or November, 1912, she began going with him again, and he made love to her, and they became engaged early in 1913. He continued to go with her until about September, 1913. He was then about 20 years old and she about 2 years younger. 'She said she had sexual intercourse with him about 2 weeks after they became engaged to be married, and she permitted him to have sexual intercourse with her because “I loved him and he promised to marry me.” That at the time she had intercourse with him “he began about how much he loved me, and all those kind of things. Then he said — he finally kept on at me trying to — well he told me I said I loved him well enough to do anything for him, and he told me then what he wanted me to do, and I told him I loved him well enough to do anything in reason, and he said that was in reason, and I told him it was not. But finally, after he kept on and said there would be no danger and wasn’t any harm in it and we were engaged and it would not make any difference, we was same as one anyhow, I submitted to him.” She was asked on cross-examination:

“Did he tell you in that conversation that if anything happened, there was no danger, but if anything happened he would marry you? No, sir-; he told me he loved me and we were going to marry anyway.”

Appellant himself testified and admitted that he began waiting upon said girl and she quit going with him at the intervals she stated, substantially as she testified, and that the first time he had sexual intercourse with her was in 1913, saying: “And the time she told on the witness stand that we had intercourse is correct, and she told the truth there.” Among-other things, he swore: “I wouldn’t say that I never made love to her beeausé things like that lead up to the other.” That he would not say that he did not tell her he loved her, but said:

“Yes, I did kiss her; that was where it started. I might have told her I loved her; I might have told her that a good many times, I am not sure. She told me she loved me, and I think I told her that I loved her.” That as to him begging and persuading her to have intercourse with him, he said there was not very much begging or persuading to it. “I just kept on until we had intercourse. As to whether I just gained her love and wormed myself into her affection until I finally accomplished my purpose and ruined her, I don’t know whether I gained her affection or not.”

He claimed: That on tlie different periods of time he was going with her that he commenced to put his arms around her and to be familiar with her that she did not rebuke him, but that he did not remember why he quit going with her the first time. That on tire second period of time when he began to go with her that he put his arms around her and kissed her and felt of her some, and after that he quit again. That he quit her on that occasion because they had a fuss. That he did not want her to be going with Dee Neil, and she would not do it. And that is the reason he quit her at that time. That while he was going with her in 1913, when he had intercourse with her, he said: “I don’t know as I did love her; sometimes I thought I did, and other times I didn’t.”

iSaid seduced girl further testified in substance that appellant got her pregnant about the middle of June, 1913; that she had a child by him born March 17, 1914. She further testified: That, soon after she discovered he had gotten her pregnant, she told him about it and wanted him to marry her, and also then told her mother. That about September 1st he came to her home, and her mother asked him about it, and he owned up to it, “and she asked him if he had promised to marry me, and he said he had, and he says, T am to blame for the whole business,’ and she says, ‘What are you going to do about it?’ and he says, T don’t know, I am willing to do anything that is right,’ and she says, ‘You know the only right thing is to go ahead and marry,’ and he said, ‘Well, he didn’t know what he could do,’ and they talked on awhile,” She did not know just what all they did say. “But he said, he told her that he would consider things and come back another time, and so she told him all right.” That they then fixed the time he should come back, which was some few nights later, and that he came back at the time they agreed upon. That she met him, and they went into the front room. That her mother came in and asked him what he had decided to do, and he said he did not know. And he proposed to take her to a sanitarium, and her mother said, no, he would not do that, that he had promised to marry her, and that it was nothing but right that he should do it, and so he hemmed and hawed there awhile and said he would. She finally set a day, and he said he could not then, as it was too soon. And she said, “I will leave it with you all to set the day.” She went out, and while her mother was out she and he set the day for the next Sunday week after that. He said he would see her the last of the week; that he would see her somewhere before that. “And from that time I have never seen him only the first time at court (in 1918). That is the only time I have seen him since that day.” That he did not come to her home after the night they had set the time for the marriage.

Mrs. Lester, the mother of said girl, testified, corroborating her daughter. She further testified, as her daughter had, that about September 1,1913, appellant was at her home, and she and her daughter talked the matter over with him. She asked him if he had promised to marry her daughter, and he said he had, and she told him what her daughter had told her, and he said it was all so that he was to blame for the whole thing. She asked him what he was going to do about it. He said he did not know whether he could marry her or not. She kept insisting on him telling her what he would do about it, and he then put her off, agreeing to come back at another time some days later and see about it. He came back as agreed, and then he proposed he would take her daughter to a sanitarium and get her shed of it and pay all expenses, and “I told him I would not agree to that at all”; and that she kept insisting and told him the only right thing to do would be to marry her, that he had promised to marry her. That he at first would not agree to marry her. Finally he said, “Yes, X will marry her.” She insisted upon them marrying the next two or three days, tie thought that would be too early and he could not get ready at that time, and then he and her daughter fixed the time at Sunday week following. He then left her home, and she had seen him no more until this term of the court. She said at the time he was at her home and she and her daughter talked it over with him, she told him that her daughter had told her he had promised to marry her and that he said that that was all so; that all she told him that her daughter had told her was so and that he said he was to blame for the whole thing.

Appellant himself testified, and the effect of his whole testimony was to corroborate said girl and her mother in practically all they had testified, except that he denied that he was engaged to be married to the girl when he first had sexual intercourse with her, and denied he agreed to marry her, when they insisted he should in accordance with his promise in September 1913.

The state proved by Mr. Kellis, who was the sheriff of Van Zandt county in 1913, when the indictment herein was found, and who continued as such officer until December 1, 1916, that from the time said indictment was found he diligently sought appellant all over the state, but could not locate him. Mr. Carpenter, his successor in office, swore that after he came in he tried to locate him so as to arrest Mm, and did not do so until about January 1, 1918, at which time be located bim, and be was arrested and brought back.

Appellant swore that, in the last interview be had with the girl and her mother as testified to by them, her mother told him, “You will have to marry that girl, or I will tell the boys and there will be trouble.” That was the reason he fled. The girl and her mother denied that any such threat was made by them or either of them at any time.

All the testimony in detail has not been given, but the substance of it on the material points has been.

The court gave a full, complete, and apt charge and required that the jury must believe all the necessary requisites to show that appellant seduced said girl beyond a reasonable doubt before they could convict him. No complaint is made of the charge in any respect. In 2 Branch’s Ann. Pen. Code, § 2707, it is said:

“When the jury have solved the questions presented in the testimony under a fair and proper charge of the court and have found defendant guilty of seduction, and that verdict has been approved by the trial judge, whose duty it is to set it aside if not satisfied therewith and there is sufficient evidence in the record, if believed, to sustain the verdict, it will not be disturbed on the facts on appeal unless clearly wrong.”

He cites a large number, of cases so holding. All these requisites were met in this case, and we are not at liberty to set aside the verdict and judgment of the lower court under the law and evidence.

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


text:
    CHAPMAN v. STATE.
    (No. 5158.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Eorrest Chapman was convicted of burglary, and appeals.
    Affirmed.
    E. B. Hendricks,' Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed from a conviction for burglary, but without any statement of fact or bill of exceptions. There is nothing to consider in the absence of these.

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


author: RASBURY, J.

text:
    SPADRA-CLARKSVILLE COAL CO. v. SECURITY NAT. BANK OF DALLAS.
    (No. 8002.)
    (Court of Civil Appeals of Texas. Dallas.
    June 29, 1918.
    Rehearing Denied Nov. 9, 1918.)
    1. Banks and Banking <&wkey;101 — Effect of Ultra Vires Contract — Title to Property.
    Where creditor bank agreed with debtor, insolvent coal company, to purchase and pay for coal sufficient to supply company’s trade and pay operating' expenses, president of company to act as bank’s agent for sale and delivery, and net proceeds from business to be applied to company’s debt to bank, title to coal purchased pursuant to such agreement, and turned over to the president of the company, remained in the bank as between it and the company, although agreement was ultra vires as to bank.
    2. Banks and Banking <&wkey;101 — Ultra Vires Contracts — Rights of Creditors.
    Creditor of insolvent coal company would have no greater right to levy upon and sell coal purchased by bank, another creditor, pursuant to agreement with company to supply its trade, than the coal company would have to claim ownership therein, although agreement through which bank 'acquired coal was ultra vires to its charter.
    3. Fraudulent Conveyances <&wkey;44 — Taking Over ' Business of Insolvent Company — “Fraudulent Purchase.”
    Purchase by creditor of coal company of sufficient coal to supply company’s trade, and placing coal in hands of president of company, who was to act as creditor’s agent in its sale and distribution, creditor to pay operating expenses and have net proceeds, held not, as to other creditors of the company, fraudulent within Vernon’s Sayles’ Ann. Civ. 'St. 1914, art. 3966, 3909, or 3970, the company never having any title or interest in the coal.
    4. Banks and Banking <&wkey;101 — Ultra Vires Contracts — Wi-ro may Question.
    Ultra vires of a bank cannot be the basis of an action against, or a defense by, the bank; but the government alone may complain, in a proceeding to forfeit bank’s charter, that hank exceeded its charter powers.
    5. Execution &wkey;>192 — Allegation as to Title — Sufficiency.
    In suit between creditors involving title to coal purchased by defendant creditor to supply debtor coal company’s trade, allegation of ownership in defendant and coal company’s possession as its agent was, in the absence of exceptions requiring a particularization of claim of title, sufficient to admit proof of contract between defendant and coal company.
    6. Appeal and Error <&wkey; 1056(4) — Exclusion of Evidence — Harmless Error.
    Refusal to permit witness to answer on ground that fraud was not alleged was at most harmless where court found as true the very facts comprehended in the question.
    7. Appeal and Error <&wkey;1041(4) — Refusal to Permit Amendment — Harmless Error.
    Refusal to permit amendment of pleading so as to allege fraud established by evidence was harmless where the court found as a fact all that proof under such amendment would have developed.
    Rainey, O. J., dissenting.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit between the Spadra-Clarksville Coal Company and the Security National Bank of Dallas. There was judgment in justice court for the latter, appeal to the county court resulted similarly, and the former appeals.
    Affirmed.
    Harry L. Obenchain, of Dallas, for appellant.
    Leake & Henry and W. L. Mathis, all of Dallas, for appellee.
   RASBURY, J.

This is an appeal from the judgment of the trial judge awarding to axipellee, in a suit of the trial of the right of property, the title and possession of certain coal.

The facts upon which the trial court based its judgment are not controverted, and those essential to an intelligent consideration of the issues presented are these: On January 17, 1917, the Montgomery Coal Company, formerly engaged in retailing coal, was insolvent, without coal to supply its customers or funds with which to purchase same, and indebted to various creditors, including appellant and appellee, the latter’s debt being approximately $1,400, secured by chattel mortgage on all the tangible property of the coal company, consisting of horses, wagons, harness, trucks, etc. The mortgaged property was insufficient in value to satisfy appellee’s debt. With full knowledge of the insolvent condition of the coal company, and for the purpose of raising money with which to pay the coal company’s debt, it was agreed between appellee and Thomas Montgomery, president of the coal company, that the former would, on its own account, purchase coal sufficient to supply the trade, Montgomery to act as agent for appellee in the sale and delivery thereof. Appellee was also to pay all expenses of operating the business, such as yard rent, clerks, laborers, and teamsters. The net proceeds from the business were to be applied to the payment of the coal company’s debt to appellee, save an allowance to Montgomery, the amount of which is not shown by the record. The coal bought under the agreement was paid for by checks drawn on appellee bank in favor of coal dealers with bill of lading for coal attached, and signed “Montgomery Coal Company, by Thomas Montgomery, President,” accompanied by the word “special,” and were paid by appellee only when approved by D. D. Rodgers, who was an employé of and had the matter in charge for appellee. The coal was not purchased on the credit or with the money of the coal company, and it was neither the intent nor purpose to vest title to the coal in the coal company, but to retain same in appellee. The coal was daily exposed for sale at the coal company’s former yards, and when sold was delivered in the coal company’s wagons, trucks, etc. The coal company’s billheads and C. O. D. slips were used in rendering statements to customers. While it is not disclosed by the statement of facts, it appears from the court’s findings of fact that the appellant on December 18, 1916, recovered judgment against Montgomery Coal Company for $149, and costs. On March 8, 1917, execution therefrom was levied upon the coal in controversy, which was afterwards claimed by appellee under the statutory remedy indicated. Issues were voluntarily tendered by the parties in that proceeding. There was trial in justice court, resulting in judgment for appellee; appeal to and trial in county court, resulting similarly. In the latter court findings of fact were prepared and filed by the court reflecting the facts just recited in detail.

There are a number of assignments of error, but in our opinion, upon analysis, they present, aside from certain matters of procedure, but two contentions, which, in our own language, are: (1) That appellee bank cannot maintain a suit for the trial of the right of property in the coal in controversy for the reason that its title thereto has its source in acts ultra vires its charter, and that as a corollary the title as to creditors is in the Montgomery Coal Company; and (2) that the manner in which the sale of the coal was conducted under the agreement was as to creditors fraudulent, and as to them placed the title in the Montgomery Coal Company.

As to the first contention it may be conceded, but not determined, that the contract between appellee and the coal company was ultra vires as to the appellee, yet it is not conceivable that that fact would pass title to the coal to the coal company. Whether title passes depends on the intention of the parties and a compliance with the formalities provided by law in a given case. Government may penalize corporations for acquiring title when forbidden by law, and may require the corporation to divest, itself thereof. But that fact will not reinvest the seller with the title or invest it in another. We know of no rule of law or equity which will; as between appellee and the coal company, warrant such holding. The coal company contributed nothing with which to purchase the coal. It is without dispute that appellee purchased it and that the coal company had possession of it as agent for appellee under the contract stated. The contract was for its benefit and to enable it to pay the debt due appellee. Bond v. Terrell Cotton & Woolen Mfg. Co., 82 Tex. 309, 18 S. W. 691. We therefore conclude that, as between the appellee and the coal company, the title to the coal was at all times in the former.

If, then, the title, as between appellee and the coal company, was in the former, even though acquired ultra vires its charter, appellant had no greater right to levy upon and sell it as the coal company’s property than the latter had to claim ownership therein. That being true, it brings us to the other ground, that as to creditors the coal company’s possession under the agreement was fraudulent and constituted ownership and authorized levy. We believe such contention also unsound.

One undoubtedly has the right to place his property in the possession of an agent for sale on such terms as the parties may agree upon, subject to the rights of those who purchase same or acquire rights therein for value without notice of any limitations on the authority of the agent or the actual ownership of the property. According both to the undisputed evidence and the court’s findings the coal company was iii possession of the coal levied upon as agent of appellee. In what respect was that in fraud of any rights of appellant? No assets of the coal company to which appellant was entitled to look as security for its debt was withdrawn from its reach. Nor did its funds or credit contribute to its purchase. This is not a case within the provision of article 3966, Vernon’s Sayles’ Civil Statutes, prohibiting the gift, conveyance, assignment, or transfer, etc., of property to hinder, delay, or defraud creditors, or of article 3969, prohibiting the loan of chattels for a longer period than two years, or of article 3970, declaring void mortgages, trust deeds, or other liens by the owner upon a stock of merchandise daily exposed for sale in the regular course of business, as is contended by appellant. Those statutes contemplate ownership in the property so transferred, loaned, or mortgaged. The case of Texas National Bank v. Lovenberg, 63 Tex. 506, and kindred cases relied upon by appellant, are cases where ownership was in the debtor. Examination of the case cited discloses that a merchant attempted to secure the bank in payment of its debt by what was held to be a mortgage on merchandise belonging to the merchant, and daily exposed to sale in the regular course of business, and as a consequence void against the assignee in a subsequent general assignment for the benefit of creditors. In that case of course the security of the creditor was withdrawn from his reach in a manner prohibited by law. Here, however, the coal company never at any time had any title to, or interest in, the coal levied upon.

The fact that appellee’s acquisition of the coal may have been ultra vires of its charter confers no right upon appellant, since the rule is that such acts cannot be the basis of an action against, or a defense by, the bank. Of such acts the government alone may, in a proceeding to forfeit the bank’s charter, complain. 3 Michie, Banks & Banking, 2005.

Appellant upon trial objected to proof of the contract between the bank and the coal company on the ground that it was not sufficiently pleaded. The parties voluntarily tendered issues at trial, appellant, as plaintiff below, denying that appellee had ownership or interest in the- coal, and that same was by the coal company exposed for sale in the ordinary course of business, hence void, and subject to levy, execution, etc. Appellee,' defendant below, answered that it was sole owner of the coal, and that the coal company never owned or had title to same, and, if it was in possession of same at time of levy, it was so as the agent of appellee. The general allegation of ownership in appellee and the coal company’s possession as its agent, in the absence of exceptions requiring a particularization of the chain of title, was sufficient to admit proof - of the contract between appellee and the coal company. Linn v. Wright, 18 Tex. 317, 70 Am. Dec. 282; Emerson v. First Nat. Bank, 25 S. W. 433.

Counsel for appellant at trial asked the witness Montgomery, president of the coal company, if it “is not a fact that your company was insolvent, with several judgments against it, and the bank was aware of this condition,’ and you entered into this arrangement to get the bank to assist your company, to the exclusion of the other creditors and in. preference of the bank”? The court refused to permit the witness to answer on the ground that fraud was not alleged, which action of the court appellant assigns as error. In connection with the issue so presented, and without reference to the pertinency of the question under the pleading, the court found as true the very facts comprehended in the question, save that the purpose was to exclude other creditors and prefer the bank, and hence, in view of such findings by the court, the point, at most, discloses harmless error. As to whether the witness should have been permitted to affirm or deny that the purpose of the agreement was to prefer the bank and exclude the other creditors from the profits of the venture is, in our opinion, immaterial. Ownership of the coal having at all times been in the bank, it had the right to use it for its own benefit and to the exclusion of the creditors of the coal company.

With reference to the exclusion of the foregoing testimony, on the ground that the pleading did not sufficiently aver fraud to admit same, the appellant asked permission of the court to amend its pleading in conformity to such ruling. The request was refused, and the action of the court in that respect is assigned as error. As we have shown, the court found as a fact that the coal company was insolvent, with several judgments against it, of which the bank was fully informed, and, if the appellant was entitled to amend its pleading, it nevertheless appears that the court found as facts all that proof under the amendment would have developed. As a consequence, if appellant was entitled to amend his pleading to meet the court’s ruling in that respect, concerning which we express no opinion, all such matters, in view of the findings of the court, are immaterial, and constitute at most harmless error, since it does not appear that the error amounted to such denial of the appellant’s rights as was reasonably calculated to, and probably did, cause the rendition of an improper judgment.

There are assignments complaining of the admission of testimony tending to prove the agreement between appellee bank and the coal company on the ground that such testimony was inadmissible because the agreement was void, because ultra vires of ap-pellee bank’s charter, and for fraud. These assignments will be overruled in consonance with our holding on those issues stated at another point in this opinion.

Finding no reversible error in the record, the judgment is affirmed.

RAINEY, C. J., dissents.


author: HIGHTOWER, O. J.

text:
    LUCID et al. v. McDOWELL, District Judge.
    (No. 442.)
    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1918.)
    1. Mandamus <&wkey;31 — Right to Remedy — Matters of Discretion.
    Since under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1714, the judges of the district courts are empowered but not required to make orders in vacation, where a judge in vacation set down habeas corpus proceeding for hearing the respondents, who filed a plea of privilege to be sued in their own county, could not, by mandamus, compel the judge to hear and pass upon their plea when he preferred to continue the cause until term time.
    2. Venue <&wkey;70 — Effect of Uncontradicted Plea of Privilege.
    Where in habeas corpus defendants’ plea of privilege to be sued in their own county was not controverted, the plea itself is prima facie evidence of their right to a transfer, in view of Acts 3Sth Leg. c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903).
    3. Venue &wkey;>36 — Right to Change of Venue — Habeas Corpus Proceeding.
    In habeas corpus to determine proper custody of children, which was in effect .merely a civil action, respondents, upon proper'showing, have the right to a change of venue to the county of their residence.
    Original proceeding for mandamus by Tom Lucid and others against E. A. McDowell, as judge of the Sixtieth district court.
    Writ denied and petition dismissed.
    E. M. Chester and E. E. Easterling, both of Beaumont, for relators.
    W. E. Orgain, of Beaumont, for respondent.
   HIGHTOWER, O. J.

This is an original proceeding in. this court for the writ of mandamus, brought by Tom Lucid and his wife and Henry Weber, as relators, in which Hon. E. A. McDowell, as judge of the Sixtieth judicial district, is made respondent. The purpose of the proceeding is to compel said respondent to proceed to judgment on a plea of privilege interposed by relators in a certain habeas corpus proceeding, which was commenced before said respondent as district judge, on the 28th day of September. 1918, in which proceeding Kezzie Turnipseed and her husband, J. H. Turnipseed, are re-lators, and said Lucid and wife and Weber are respondents. When the petition for mandamus was presented to this court it was ordered that the same be set down for hearing on the 14th day of October, 1918, and Hon. E. A. McDowell, respondent, was cited to appear before this court on that date and show cause, if any, why the writ should not be granted as prayed. On the day set for hearing of the application the respondent appeared by attorney and filed an answer, interposing general and certain special exceptions, a general denial, and also specially denying, in effect, all material allegations contained in the application for the writ.

We think that our disposition of the case will be more clearly understood by making a brief statement, at this point, of the controversy between the parties in the habeas corpus proceeding, and also of such proceedings as were had before the respondent here touching this controversy. As stated above, an application for the writ of habeas corpus was presented to Judge McDowell on the 28th day of September, 1918, by relators herein, in which application it was alleged, substantially, that Mrs. Kezzie Turnipseed was the mother of five minor children, naming them, who were the issue of a marriage between her former husband, Henry Weber, and herself, and that the possessmn of said children had, by means of fraudulent promises and representations and statements and conduct on the part of the said Mrs. Lucid, been obtained by the said Mrs. Lucid, and had been wrongfully and fraudulently withheld from their said mother, and restrained of their liberty, etc.; that the said Mrs. Lucid was the mother of said Henry Weber, the father of said children, from whom Mrs. Turnipseed was legally divorced several years ago, and that the said Henry Weber makes his home with his said mother in Cherokee county, and was also in possession of said children, and participating wrongfully in withholding them from their said mother; that the said Henry Weber was an unfit and unqualified person to have the care and custody of said children, and that said Mrs. Turnipseed was. entitled to their possession and custody, and said Hon. E. A. McDowell was prayed to so determine and to adjudge the right to the possession and custody of said children to be in their mother, the said Mrs. Turnipseed, and that it would be for the best interests of said children to so decree.

At the time the application for the writ of habeas corpus was presented to Judge McDowell his court was in vacation, and he indorsed his fiat on said application, and ordered that the same be set down for hearing on the 4th day of October, 1918, before him at the courthouse in Jefferson county, and commanded the respondents in that proceeding, Tom Lucid and wife and Henry Weber, to produce before him on that date said children. Thereafter, and on said 4th day of October, the respondents in said habeas corpus proceeding appeared before Judge McDowell, as did also the attorney for the rela-tors, and thereupon the attorney for the respondents in that proceeding, Tom Lucid and wife and Henry Weber, filed and presented to Judge McDowell their plea of privilege to be sued in Cherokee county, Tex., the county of their residence and domicile, and requested Judge McDowell to hear and rule upon said plea of privilege, and to change the venue of said proceeding and suit to the district court of Cherokee county. This plea of privilege in all respects complied with, the statute, and contained facts which, if true, entitled the respondents in that proceeding to be sued in the district court of Cherokee county, and to have the same transferred to said district court of Cherokee county for trial and disposition. This plea of privilege was in no maimer controverted by the rela-tors in that proceeding, but, when the same was presented to Judge McDowell for his action and ruling, the attorney for the relators there stated to Judge McDowell that he desired to read a decision from one of the appellate courts in this state, which would show that the respondents in that proceeding were not entitled to have the cause transferred to the district court of Cherokee county and that the plea of privilege should be overruled. At the time, however, the plea of privilege was presented, it appeared that the children named in the writ of habeas corpus had not been produced before Judge McDowell, as commanded, but an affidavit of a physician was presented, showing that one of the children was sick and could not be produced, and it was further represented to Judge McDowell by the attorney for the respondents in that proceeding that the other children named in the writ were attending school at Rusk, in Cherokee county, and that it would be very inconvenient, as well as expensive, to bring them to Beaumont, and entirely unnecessary to do so in the event the plea of privilege should be held to be good; and it was insisted by the attorney for the respondents that the plea be entertained and acted upon at that time, notwithstanding the children were not present, and thereupon it seems some colloquy took place between 'the attorneys for the respective parties before said judge, and, finally, as shown by the answer of Judge McDowell, under oath, in this proceeding, he declined to determine and rule upon said plea of privilege at that time, but instead made an order resetting the hearing of said habeas corpus proceeding and the plea of privilege filed therein for the 14th day of October thereafter. There is some contradiction between the parties here as to some things that were done at the time the plea of privilege was presented, and as to why the same was not then promptly ruled upon and disposed of by Judge McDowell; but in view of the disposition that we shall make of this case, and our reason therefor, we think it unnecessary to determine these matters of contradiction and questions of fact as made by the petition of relators herein and the answer of respondent, even if we are authorized to do so, and therefore deem it unnecessary to notice in detail these contradictory contentions.

The gist of the complaint in the application here for the writ of mandamus is that Judge McDowell, having set the habeas corpus proceeding down for hearing on said 4th day of October, with the consent of the parties thereto, and the respondents there having presented to him the plea of privilege to be sued in the county of their domicile, which plea was entertained by said judge and in no manner controverted by the relators there, it became the clear legal duty of Judge McDowell to then rule upon and determine said plea of privilege by either overruling or granting the same, and that he had no discretion to do otherwise; but that he arbitrarily refused to rule upon said plea of privilege, and would neither grant nor overrule the same at said time, but arbitrarily, and over the objection of the attorney for the relators here, postponed and reset the hearing of said plea of privilege for the 14th day of October thereafter, and stated then and there that he would not hear and determine said plea of privilege until said children should be produced in obedience to the writ of habeas corpus which he had issued; and that Judge McDowell, in so postponing and resetting said plea of privilege for hearing, and in declining to act upon the' same when presented, did so for the reason alone that said children had not been produced at said time in obedience to said writ of habeas corpus, and that such claimed reason was no legal or just reason, and that Judge McDowell’s action in that respect was clearly arbitrary and unwarranted and unjustified.

If this contention on the part of relators here should be conceded to be correct, to the extent that Judge McDowell should not have declined to proceed to judgment on the plea of privilege merely for the reason that said children liad not been produced in obedience to the writ of habeas corpus, if such was his reason for so refusing, still we think, under the facts of this case, this court would not be authorized to grant the writ of mandamus as prayed. On the 4th day of October, 1918, Judge McDowell’s court (the Sixtieth judicial district) was not in session, but, on the other hand, was in vacation, and the whole of the habeas corpus proceeding was had before him in vacation as a district judge, and not as the district court of said district.

Article 1714, Vernon’s Oiv. Statutes of Texas, reads as follows:

“The judges of the district courts may in vacation, by consent of the parties, exercise all powers, make all orders, and perform all acts, as fully as in term time, and may, by consent of the parties, try any case without a jury and enter final judgment, except in divorce cases. All such proceedings shall be conducted under the same rules as if done in term time; and the right of appeal and 'writ of error shall apply as if the acts had been done in term time.”

Now, it is the contention, in effect, of rela-tors here that notwithstanding the fact that the habeas corpus proceedings were had before Judge McDowell in vacation, yet such proceedings having been had with the consent of the parties thereto and with the consent of said judge, it was just as mandatory on him as such judge to proceed with and determine said plea of privilege, at the time same was presented to him, as it would have been had such proceedings taken place in term time of his court, and he had then refused to rule upon said plea of privilege.

We cannot agree with the contention of relators here in this respect, but, on the contrary, we are of the opinion that the above-quoted statute, while it permits causes to be tried without a jury before a district judge in vacation to be disposed of finally and just as fully as if done in term time, still we do not believe that just because a district judge, whose court may not be in session, should agree, with the consent of the parties, to hear and determine a cause in vacation, he may not thereafter conclude to not hear and determine such a proceeding in vacation, as was done by the respondent here. Before this court would be authorized to issue the writ of mandamus here prayed for, it must be convinced that a clear legal duty rested upon the respondent, Judge McDowell, to hear and rule upon said plea of privilege at the time the same was presented to him in vacation, as above shown; and in view of the provision of article 1714, above quoted, to the effect that a district judge may, with the consent of the parties, proceed to the determination of a cause between them, but in our opinion is not required to do so, it cannot be held that a clear legal duty rested upon Judge McDowell to hear and determine said plea of privilege in vacation, notwithstanding the fact that he had agreed or consented to do so, but when such plea was presented withdrew his consent and concluded to postpone the disposition of said plea until the opening of the regular term of his court, on the 14th day of October thereafter. We think, under the article above quoted, properly construed, Judge McDowell had the discretion to postpone the hearing of said plea of privilege and his ruling thereon until the opening of the regular term of his court, and such plea should be reached by the court for determination, and that, therefore, it could not be said that a clear legal duty rested upon said judge to hear and determine said plea in vacation, and that, in the absence of such clear legal duty, this court would not be authorized to grant the writ of mandamus as prayed.

In this connection we might say that in our opinion the plea of privilege interposed in the habeas corpus proceeding was, upon its face, such, in substance and form, as to entitle the respondents in that proceeding to have that cause transferred ■ to the district court of Cherokee county for disposition, as prayed for by the respondents, and, the same not having been in any manner controverted by the relators in that proceeding, the plea itself would be prima facie evidence, of the right in the respondents to have said cause so transferred when the same shall be reached for disposition. Gen. Laws 35th Legislature, c. 176, p. 388 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903).

The controversey as to the right of custody and possession of the children hereinbefore mentioned, although taking the form of a habeas corpus proceeding, was nothing more than a civil action or suit involving the question as to which of the contending parties were entitled to have that custody; and the defendants (respondents in that proceeding) would be entitled, we think, if the allegations in the plea ’of privilege be true, to have that question determined by the proper court in the county of their domicile. Finney v. Walker, 144 S. W. 679; Legate v. Legate, 87 Tex. 250, 28 S. W. 281; Rice v. Rice, 24 Tex. Civ. App. 506, 59 S. W. 941.

We are not called upon to decide whether a district judge or a district court, in a controversy taking the form of a habeas corpus proceeding, in which the real and only question to be determined is the right of custody and possession between the contending parties, as here, would be justified in declining to hear and act upon a proper plea of privilege, when interposed by a respondent in such proceeding, to be sued in the county of his domicile, merely on the ground that the children .involved were not produced in obedience to the writ of habeas corpus, and we do not decide that question here.

It is made clear, however, from the answer filed by the respondent here, Judge McDowell, that it is not his intention to- decline ruling on relators’ plea of privilege until said children shall be produced before him; but he says in his answer, in substance and under oath, that when the plea of privilege shall be reached before his court the same will be determined upon its merits, and that if it should be determined by him, in the exercise of his judicial functions, that the plea should be sustained, such will be his ruling, and the matter will be at an end. We have no right to doubt that such will be his course.

Whatever may be said of the proceeding by writ of habeas corpus, as the same Was technically known and understood at the common law, we know that in practice in this state such proceeding is frequently resorted to where, as in this instance, the controlling and main question to be determined is the right of custody and possession of children between contending parties, and we think that usually that question can be fully determined in the absence of the presence of the children involved. Instances, however, may be readily supposed where the judge or court issuing the writ should and would be justified in compelling the production of the children involved, in order to a full and proper determination of the issue between the parties and the welfare and best interests of the children.

For the reason above given the writ of mandamus prayed for will be denied, and the petition of relators will be dismissed and it is so ordered.
      <@=s>Fcrr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    J. I. CASE THRESHING MACH. CO. v. DALLAS CHAMBER OF COMMERCE.
    (No. 7993.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 26, 1918.)
    1. CORPORATIONS &wkey;432(12) — AUTHORITY 0® Agent — Contracts—Evidence.
    Evidence held insufficient to show that defendant threshing machine company’s, branch house manager had authority to sign ah agreement that it would save plaintiff harmless from loss in promoting, financing, and conducting a national corn show.
    2. Corporations <S=»432(12) — Contracts — Authority op Agent — Evidence.
    That agent of threshing machine company signed his name as branch house manager was insufficient to show his authority to make agreement to save plaintiff harmless from loss in conducting national corn show, where there was nothing to show the character of the company’s business or the extent of the agent’s authority.
    3. Corporations <&wkey;429 — Transactions with Agent — Duty to Make Inquiry as to Authority.
    Where the act by which a corporation is sought to be bound is out of the usual course of its business, those dealing with its agent are bound to inquire as to agent’s authority and deal with him otherwise at their peril.
    ' Appeal from District Court, Dallas County; W. P. Whitehurst, Judge.
    Suit by the Dallas Chamber of Commerce against the J. I. Case Threshing Machine Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    Spence & Haven, of Dallas, for appellant.
    J. J. Eckford, of Dallas, for appellee.
   RAINEY, O. J.

Appellee brought this suit against appellant to recover on the following instrument:

“$1,000.00. Dallas, Texas, Oct. 2, 1913.
“In' consideration of the Chamber of Commerce having contracted to hold at Dallas for two weeks in February, 1914, the National Corn Exposition, I, or we, agree to pay to the Dallas Chamber of Commerce, at its office in Dallas, on or before March 1, 1914, one thousand dollars ($1,000.00), or such part thereof as may be required to save the Chamber of Commerce harmless from loss in promoting, financing, and conducting said National Corn Show, and, if there is no loss, nothing will be payable hereunder. It is understood that I am obligated to pay hereunder only 1 per cent, of aforesaid loss actually incurred. All expenses are to be incurred under the direction of Henry Exall, J. J. Eckford, and C. W. Hobson. All receipts from gate, concessions, or otherwise are to be devoted to the liquidation of expenses incurred until said expenses are fully paid.
“J. I. Case Threshing Machine Co.,
“By W. C. Lemmon,
“Branch House Manager.”

It was then alleged that the National Corn Exposition was held in Dallas, and that a loss was actually sustained thereby, and that by virtue of said obligation appellant became liable to pay 1 per cent, of loss, which amounted to $570.46. Appellant answered by general demurrer, general denial, and a plea of non est factum, denying the authority of W. C. Lemmon to bind appellant for the payment of any such loss. Supplemental pleadings were filed by the plaintiff and defendant, and practically only one issue was presented for decision, and that, in effect, was whether or not Lemmon was authorized to bind the company for the loss so sustained. The court instructed a verdict for appellee, affd the jury so found. Judgment being rendered for appellee, an appeal was perfected by appellant.

Appellant requested the trial court to instruct a verdict in its favor, which was refused, to which action of the court appellant excepted, and complains of the action of the court in instructing a verdict for appellee, and submits that Lemmon was unauthorized to sign such contract, and that “the party dealing with an agent of a corporation must, at his peril, ascertain what authority the agent possesses and is not at liberty to charge the corporation by relying upon the act óf the agent.” The evidence tends to show that appellant maintained a branch house at Dallas, Tex., with W. C. Lemmon as agent, who transacted business for appellant as “Branch House Manager.” As said, he had been in charge of said house and conducting its business for several years. He was a member of the Dallas Chamber of Commerce; the membership dues being paid by checks of the appellant company. When the note sued on was sent to the secretary of the Chamber of Commerce, it was accompanied by a letter stating as follows:

“Dallas. Texas, Oct. 22, 1913. '
“Mr. J. R. Babcock,,Sec’ty., Chamber of Commerce, Dallas, Texas — Dear Sir: Inclosed find our company’s guaranty of $1,000.00 for promoting the'National Corn Exposition. In signing and sending this guaranty on the part of our company, the writer has done so in his own motion, and we will get our general manager and sales manager, both of whom are expected to be here this week, to approve the writer’s action, as it is necessary to submit these matters for their approval. In case the general manager does not approve of the writer’s action, it will be necessary for us to ask the return of this obligation. However, the writer believes the company will do their part in helping to promote the Corn Exposition.
“Yours very truly,
“J. I. Case Threshing Machine Co.,
“W. O. Lemmon,
“Branch House Manager.”

The agents of the J. I. Case Threshing Machine Company never notified the Chamber of Commerce that said company would not pay said obligation until W. C. Lemmon wrote the following letter:

“Dallas, Texas, March 19, 1914.
“Mr. J. It. Babcock, Secretary National Corn Exposition Dept., Dallas Chamber of Commerce, Dallas, Texas — Dear Sir: We are just in receipt of your favor of the 18th, addressed to our company, for the attention of the writer, in which you call for assessment of 30 per cent, of our company’s guaranty. Now, for your information, will state that under date of October 22, 1913, if you will refer to our letter of that date, you will see that this guaranty was given by the writer, with the understanding that it was necessary, in order to make it binding on our company, to get our general manager’s approval of the same. We inclose you copy of our letter under date of March 4, 1914, all of which you will find self-explanatory. The writer regrets that our company did not see fit to approve his actions. They have declined to do so; hence we will kindly ask that you return to us our guaranty and oblige.
“Tours very truly,
“J. I. Case Threshing Machine Co.,
“W. C. Lemmon,
“Branch House Manager.”

We are of the opinion that the evidence adduced in this case was insufficient to warrant an instruction that W. C. Lemmon was authorized as agent to sign the obligation sued on, and that it was binding on the appellant for said amount. There is no evidence in the record showing what were the powers granted to him by the company, nor does it show what was the nature of the company’s dealing, what kind of business it transacted, nor that the obligation signed by Lemmon was along the line he was to transact, or that there had been similar transactions customarily done as to warrant such act to come within the authority granted to him. The mere fact that Lemmon signed his name as “Branch House Manager” is not sufficient to show his authority, when there is nothing to show the character of business the company was doing, or what Lemmon’s authority was. W. C. Lemmon, when he delivered the note to Babcock, secretary of the Chamber of Commerce, notified him that the note and its execution by him was not to be binding unless ratified by the general manager of the J. I. Case Threshing Machine Company, and after Babcock was informed that the company had declined to ratify and approve the obligation Babcock was not justified in assuming that said company would be bound to pay it. The act of Lemmon was not shown to be in the usual course of business, and the rule of law in such cases is as laid down in Manhattan Liquor Co. v. Magnus & Co., 43 Tex. Civ. App. 463, 94 S. W. 1117, which is thus stated:

“If the act by which the corporation is sought to be bound is out of the usual course of business of the concern, those dealing with the agent are bound to inquire as to the authority of the agent and deal with him otherwise at their peril.”

The case just cited announces the principles of agency sufficiently, the facts therein being analogous to those in this case, and upon that case we rest our decision.

The evidence not showing the authority of Lemmon in running the business 'in Texas to make the contract sued on, we conclude that the case has not been sufficiently developed, and the judgment will be reversed, and cause remanded for a new trial.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes