author: BUCK, J.

text:
    GULF, C. & S. F. RY. CO. v. WILSHIRE et al.
    (No. 8219.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 12, 1915.
    Rehearing Denied July 3, 1915.)
    1. Judgment &wkey;>342 — Vacation—Authoeity Axteb Teem.
    A judgment being void, because the case was not regularly before the court, sufficient time not having elapsed after the service, the court could after the term so decree it.
    [Ed. Note. — For other cases, see Judgment, Dee. Dig. <g=»342.]
    2. Justices ox the Peace &wkey;>127 — Vacating Judgment — New Tbial.
    A justice having at the term, after that at which he rendered judgment, properly declared it void, because sufficient time had not elapsed after the service, could at such term, then having jurisdiction over the subject-matter and defendant, try the cause and render judgment.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. § 401; Dec. Dig. <S&wkey;127.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Suit for injunction by the Gulf, Colorado & Santa Fé Railway Company against J. M. Wilshire and another. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Lee & Lomax, of Ft. Worth, and W. H. Smith, for appellant. Mercer & Wilchar, of Ft. Worth, for appellees.
   BUCK, J.

On January 29, 1914, appellee J. M. Wilshire filed suit in a justice court of Tarrant county, Tex., against the Gulf, Colorado & Santa Fé Railway Company for damages in the sum of $18.75, for 17 turkeys alleged to have been killed by appellant’s train. Citation was served on the defendant company January 30th, and the February term of court began February 6th. There was no appearance, or waiver thereof, by defendant, and on February 7th judgment was rendered by default against the defendant for the amount of the claim. On April 1st the defendant applied to the Seventeenth District Court for a writ of injunction to restrain the justice of the peace and said Wilshire from levying a writ of execution under said alleged void judgment. Upon the presentation of the petition for injunction, the court entered the following fiat:

“The clerk will issue injunction as prayed for upon defs. giving bond in the sum of $100. This April 1, 1914. Jas. W. Swayne, 17th District.”

The application seems to have been verified by the affidavit of the railway company’s attorney on April 4th, and filed in the district clerk’s office April 9th. Prior to the application, on, to wit, March 9, 1914, the justice of the peace, evidently realizing his mistake in entering the default judgment without the 10 days’ requisite service, entered on his docket the following:

“Judgment declared void 3 — 9—14, by not giving sufficient time to defendant.”

Later, the justice, after a vain attempt to get an agreement as to the setting of the case, set the case for trial on June 27th. Whereupon defendant’s attorney filed another suit for an injunction on, to wit, June 26th, in the Sixty-Seventh District Court, alleging the absence from Tarrant county of Judge Swayne, the judge of the Seventeenth District Court. In this petition the history so far of the transaction was recited, including the alleged void action of the justice of the peace in attempting to set aside and declare void the judgment of the February term on, to wit, March 9th. The judge of the Sixty-Seventh District Court, Judge Marvin H. Brown, granted the writ, making the same returnable before the judge of the Seventeenth District at the July term of that court. Later these two suits were consolidated.

Lengthy pleadings of both parties are set out in some 40 pages of the transcript, consisting of various charges and counter charges, manifold special exceptions by each to the pleadings of the other, special pleas of various kinds, but we do not deem it necessary to enlarge this opinion by a detailed recital of such pleadings.

On February 13, 1915, long after the grief over the untimely demise of the unfortunate turkeys had been merged into the lust of litigious conflict, and when the accrued costs more than quadrupled the original amount involved, judgment was rendered by the Seventeenth District Court dissolving both injunctions, and the war tax was adjudged against the railway company, and the defeated contestant brings its complaint to this tribunal. Both litigants have memorialized this court in rather extensive briefs, the worsted adversary even deeming it worth while to file a lengthy reply to the defensive arguments of its opponent. But we shall try to discuss briefly what we deem the material issues presented by appellant’s several assignments.

At the time of the filing of plaintiff’s first application for writ of injunction in the Seventeenth District Court, to restrain the levy of the execution writ by the justice court, based on a judgment which the petition alleged to be void, and absolute nullity, it appears that the justice had, in fact, 30 days before, clearly indicated his conclusion that such judgment was void because of insufficient time between service of citation and rendition of judgment, Assuming, for the purpose of this discussion, as legally true plaintiff’s averment in his petition that the justice court judgment, rendered on February .7th, was absolutely void, and that it did not bind any one, then the only ground shown in said petition for the injunction sought was that the defendant Wilshire, plaintiff in the justice court, and the justice of the peace were threatening and seeking to enforce such void judgment by the levy of the execution writ. But this allegation, upon which plaintiff founded its right to the restraining order, is absolutely controverted, not only by the testimony of Wilshire, his counsel, and the justice of the peace, but by the entry on the latter’s docket of date March 9, 1914. It is evident that no effort was being made by Wilshire or the justice to enforce this judgment at the time when plaintiff applied for this writ.

But appellant urges that the justice of the peace had no authority to enter the order of March 9th, declaring null and void the judgment entered February 7th, and that, therefore, such action by the justice did not affect the apparent validity of the judgment theretofore rendered by him, and that the railway company was entitled to a restraining order. We are of the opinion that any court has the authority, even after term time, to decree void a judgment attempted to be entered at a prior term, but which was void by reason of the case not being regularly before the court.

In Burke v. Mathews, 37 Tex. 74, the Supreme Court says:

“After the close of a term, the power of the court ceases over its own j udgments and decrees, except for the correction of clerical errors, mistakes, or defects of form, or some matter necessary to carry out the jurisdiction of the court, or to declare a judgment void rendered in a case not regularly before it”

Black on Judgments, vol. 1, § 306, p. 383, after discussing the subject of the control by the court of its judgments, both during term 'and after term, says:

“Thus it will be seen that in many of the states there is a strong disposition not to depart widely from the common-law rule on this point. The reasons of the rule are obvious and weighty. The interests of the individual, as well as of the community, demand that there should be a definite end of every litigation; and nothing could be. more impolitic than to leave it in the discretion of every court to revise, review, and reconsider its judgments without limit. * * * But we shall find, in the first place, that the rule is almost everywhere subject to certain well-recognized exceptions; as where the judgment in question is entirely void, or was entered without the authority of the court, or is vitiated by some substantial irregularity.”

In § 307, Id., it is said:

“It was intimated in the last section that a judgment which is entirely void may always be set aside at a subsequent term. And this is the general doctrine of the cases. Every court possesses inherent power to vacate entines in its record of judgments, decrees, or orders rendered or made without jurisdiction, either during the term at which the entries are made or after its expiration.” Citing Ladd v. Mason, 10 Or. 308; Bruce v. Strickland, 47 Ala. 192; Baker v. Barclift, 76 Ala. 414; In re College Street, 11 R. I. 472.

This question has been passed on by our Supreme Court in numerous instances. See Chambers v. Hodges, 3 Tex. 517; Burr v. Lewis, 6 Tex. 76; Burke v. Mathews, 37 Tex. 73; Heath v. Layne, 62 Tex. 686.

In its second application for writ of injunction the railway company alleged that the justice of the peace was attempting to set down for trial and to have another trial of the cause in controversy, and alleging that under the law said justice of the peace had no power or authority or right to set aside the said judgment after term time, and had no further control of said cause.

If the justice court judgment was void in this case because of the lack of jurisdiction over the person of the defendant railway company, it does not follow that thereby the justice court lost jurisdiction over the subject-matter of the suit, nor that it could not enter a binding judgment at a subsequent term. If appellant’s contention is sustainable, this case in the justice court would, because of the mistake made by the justice of the peace in prematurely entering the judgment, be suspended, like Mahomet’s casket, in midair, and the owner of the deceased turkeys would be perpetually denied the right of recovery.

But from what has been said above, it is evident that, if the entry of February 7th was a nullity, the justice of the peace had the authority on March 9th to so declare, and had authority at any time during the March term, having at that time jurisdiction over the subject-matter and over the person of the defendant, to try said cause and render a valid judgment; and therefore we conclude that the trial court did not err in dissolving both injunctions and rendering judgment for the defendants in such suits.

The judgment is affirmed.
      &wkey;eFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    GIBSON et al. v. DICKSON et al.

    (No. 7347.)
    (Court of Civil Appeals of Texas. Dallas.
    May 29, 1915.
    Rehearing Denied July 3, 1915.)
    1. Appeal and Error <&wkey;1002 — Verdict — CONCLUSIVENESS.
    A verdict on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. 1002.]
    2. Evidence &wkey;j288 — Pedigree—Reputation.
    The relationship of one person to another cannot be proved by declarations of neighbors or acquaintances.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1147, 1148; Dee. Dig. &wkey;288.]

      3. Witnesses <&wkey;414 — Impeachment — Supporting Evidence.
    That a witness testifying that defendant was her own daughter, and that she had given her to a third person, whom defendant claimed was her mother, was impeached, did not render admissible evidence of the general reputation in the neighborhood that defendant was the daughter of the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. &wkey;414.]
    4. Appeal and Error <&wkey;1058 — Harmless Error — Exclusion op Evidence.
    Where a witness on the issue of pedigree was permitted to testify to any declarations made by any member or relative of the family, as to the parentage of the person whose pedigree was in issue, error in excluding evidence as to his. knowledge of the tradition among the members of the family as to the parentage of the person was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. <&wkey;>1058.]
    6. Trial t&wkey;365 — Issues—Verdict—'“Natural” — '“Natural Daughter.”
    Where the issue raised was whether defendant was the daughter of decedent, or of a third person, an affirmative answer by the jury to a question, “Is [defendant! the natural daughter of [decedent]?” was a finding that defendant was the legitimate child of the decedent, justifying judgment accordingly, though the word “natural” is ambiguous and means either illegitimate or legitimate, for the jury must have understood that the words “natural daughter” referred to a legitimate daughter, though the term also means a daughter born out of wedlock.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. &wkey;365.
    For other definitions, see Words and Phrases, Natural Child.]
    6. Trial <&wkey;365 — Special Verdict — Construction — Resort to Record.
    Where a special verdict in response to a question is ambiguous or uncertain, the court may look to the record to interpret it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. &wkey;365J
    7. Appeal and Error &wkey;>1051 — Harmless Error — Special Verdict — Uncertainty —Statements op Jurors.
    Error in admitting, on motion for new trial, statements of jurors as to how they construed a phrase used in a special question submitted to them, was harmless, where the court, under the pleadings and evidence, must give a like construction to the phrase.
    [Ed. Note.- — For other cases, see Appeal and Error. Cent. Dig. §§ 4161-4170; Dec. Dig. &wkey;
    Appeal from District Court, Ellis County; L. F. Hawkins, Judge.
    Action by Mrs. Harriett B. Gibson and others against Miss Mary J. Dickson and another. From a judgment against plaintiffs, they appeal.
    Affirmed.
    D. R. Callaway and Ed. J. Gibson, both of Dallas, and Farrar & McRae, of Waxahachie for appellants. Morrow & Morrow, R.. m’. Vaughan, and G. D. Tarlton, all of Hills-boro, and Supple & Harding, of Waxahachie, for appellees.

       writ of error pending in Supreme Court.

   TALBOT, J.

The appellants, Mrs. Harriett B. Gibson, joined by her husband, El. J. Gibson, Mrs. Lula M. Raborn, joined by her husband, S. L. Raborn, and Miss Carrie Belle McDaniel, instituted this suit on the 24th day of April, 1913, against the appellee Miss Mary J. Dickson. Thereafter, on the 26th day of April, 1913, the appellants made Mrs. Kate Dickson a party defendant. The appellants Mrs. Harriett B. Gibson and Mrs. Lula Raborn are nieces of W. T. M. Dickson, deceased, and the appellant Miss Carrie Belle McDaniel is his grandniece. The appellants sued, claiming to be the sole surviving heirs of the said W. T. M. Dickson, who died intestate, to recover real and personal property left by the said W. T. M. Dickson at the date of his death of the estimated value of $165,000. Mrs. Kate Dickson is the surviving widow of W. T. M. Dickson and was his third wife, and at the trial the appellants entered a disclaimer as to any right to recover against her. The appellee Mary J. Dickson alleged and contended that she was the legitimate daughter of the said W. T. M. Dickson, deceased, and his second wife, Amelia Josephine Dickson, also deceased. The appellants did not deny that Mary J. Dickson was the legitimate daughter of the said W. T. M. Dickson, if she was the daughter of Amelia Josephine Dickson. So that, the appellants having disclaimed any right to recover as against the appellee Mrs. Kate Dickson, the sole issue in the case, as finally presented, was whether the appellee Miss Mary J. Dickson was the daughter of W. T. M. Dickson’s second wife, Amelia Josephine Dickson. The contention of appellee Miss Mary J. Dickson was and is that she was such daughter, and the appellants contend that she is the illegitimate daughter of a woman formerly named Mary Ramsey, now Mary Plew, by some man other than W. T. M. Dickson. The case was tried at the May term of the court, 1914, and the sole issue of fact in the case was submitted to the jury in the following language:

“Is Mary J. Dickson the natural daughter of Amelia Josephine Dickson? This question you will answer Wes’ or ‘No,’ as you find the fact to be from the evidence. The burden is on. plaintiffs to prove their case as alleged by a preponderance of the evidence. Vou are the exclusive judges of the facts proved and the credibility of the witnesses.”

On the 19th day of June, 1914, the jury returned its verdict answering the question thus propounded in the affirmative. Later, on motion of appellees, judgment was entered in favor of appellees on the verdict of the jury that appellants take nothing by their suit and that appellees recover their costs. Appellants’ motion for a new trial being overruled, they appealed.

The first assignment of error is as follows:

“The verdict of the jury is contrary to and not supported by the evidence in this, to wit: That it was clearly established by the great weight and preponderance of the evidence that the defendant Mary J. Dickson is the daughter of one Mary Ramsey, and not the natural daughter or the legitimate daughter of the said Josephine Dickson, deceased, and there is no evidence in the record or adduced at the trial sufficient to support the verdict of the jury.”

There was a great deal of testimony introduced upon this issue, and we shall not undertake to quote it or state the substance of it. No useful purpose would be subserved in doing either. It is sufficient to say that it was very conflicting but ample to support the finding of the jury; that, such being the state of the evidence, this court would not be warranted in disturbing the verdict.

The second assignment of error complains of the trial court’s action in excluding the testimony of several witnesses offered by the appellants to the effect that it was the common repute and understanding and general reputation in the town of Milford, at the time of her birth, that Mary J. Dickson was the child of Mary Ramsey, and not of Amelia Josephine Dickson, and that said Mary Ramsey had given Mary J. Dickson, when an infant only a few weeks old, to the said Amelia Josephine Dickson, to be raised by her. This testimony was offered, and it was shown that these witnesses had resided in the town of Milford during the year 1873 and for a number of years prior thereto and continuously since; that they were intimately acquainted with W. T. M. Dickson and his then wife, Amelia Josephine Dickson, during said year 1873, and before and up to the time of their respective deaths; that they had known the defendant Mary J. Dickson from the time of her birth, about January, 1873, or December, 1872, to the time of the trial; that they also knew one Mary Ramsey, an unmarried woman, who then lived at what is known as the “Old Mill Place,” in said town of Milford; and that the said Mary Ramsey had given birth to a female child at said time. The testimony was excluded on objections of the defendants that it was hearsay, immaterial, and incompetent; that the issue being as to the parentage or pedigree of defendant Mary J. Dickson, and the inquiry not being addressed so as to elicit knowledge of the witness of statements by members or relatives of the family who were deceased, and who were in a position to know the facts, the testimony was inadmissible, because the maternity of Mary J. Dickson could not be established by general reputation in the community. There are two propositions urged by the appellants under this assignment:

First. That, after “the lapse of 40 years, the fact of maternity, like that of pedigree, tradition, or family history, is provable by reputation, and such evidence is an exception to the general rule applicable to hearsay testimony and should not be excluded upon objection that it is hearsay.” Second. “The witness Mary Plew, .who testified positively that the defendant Mary J. Dickson was her child, being a stranger in Ellis county at the time of the trial, and her testimony being- assailed by witnesses introduced by appellees, who impeached her veracity, the evidence offered by appellants, as shown by their second assignment of error, was admissible also for the purpose of corroborating the testimony and supporting the credibility of said witness Mary Plew.”

We hold that neither of these contentions is well taken. The fact in issue was one involving pedigree or relationship, and whatever may have been the law upon the subject in some jurisdictions, as reflected by the earlier decisions, it seems now to be well settled that such an issue cannot be establish-éd by common repute or general reputation. The well-recognized exception to the use of hearsay evidence, as is now almost universally held, does not justify the admission of such testimony. It is pointed out in Mr. Chamberlayne’s Modern Daw of Evidence,- § 2916, that:

“Notwithstanding the position of the earlier law, in admitting on an issue of pedigree, the unsworn statements of persons, such as attending physicians, intimate friends, those living in the family, trusty servants, and the like, shown to be possessed of adequate knowledge or of opportunities for acquiring it, the law is well settled at the present day that only those connected with the family by blood of marriage are competent declarants under the present exception to the hearsay rule; that neighbors and friends, regardless of the intimacy enjoyed by them, are not regarded as competent declarants under the rule in question.”

In thus declaring the present-day rule, Mr. Chamberlayne refers in Ms notes to some of the cases cited by appellants in support of their position as announcing the “earlier law.” But the law has never been in this state other than that the “rule of admission” is restricted to the declarations of deceased persons, who were related by blood or marriage to the person whose relationship was sought to be established. The rule and the reasons for it, as stated by Mr. Wharton and Mr, Greenleaf in their respective works on the Law of Evidence, is recognized and adopted by the Supreme Court of this state.

Mr. Wharton (section 201) says:

“Pedigree, from the nature of things, is open to proof by hearsay in respect to all family incidents as to which no living witnesses can be found. If what has been handed down in families cannot in this way be proved, pedigree could not in most cases be proved at all. Nor is such tradition in its best sense open to the objections applicable to hearsay. The recognition of such relations forms part of the family atmosphere. The existence of such relationship constitutes the family. What is said by one member of the family to another as to pedigree may be received to prove such pedigree.”

Mr. Greenleaf (section 114, 16th Ed.), after stating that as a preliminary to the admission of declarations by a member of a family, or reputation in the family, a necessity for resorting to such evidence must first appear, and that it was long unsettled, whether any and what kind of relation must have subsisted between the person speaking and the person whose pedigree was in question, and that there are reported cases in which the declarations of servants, and even of neighbors and friends have been admitted, proceeds:

“But it is now settled that the law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest of the declarants íd the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question.”

That the rule, as thus stated by these eminent law writers on the law of evidence, is the recognized rule in this state, is clearly shown by the following decisions of our appellate courts: Boone v. Miller, 73 Tex. 557, 11 S. W. 551; Fowler v. Simpson, 79 Tex. 611, 15 S. W. 682, 23 Am. St. Rep. 370; Byers v. Wallace, 87 Tex. 503, 28 S. W. 1056, 29 S. W. 760; Nehring v. McMurrian, 94 Tex. 45, 57 S. W. 943; Summerhill v. Darrow, 94 Tex. 71, 57 S. W. 942; Clark v. Kirby (Civ. App.) 25 S. W. 1096; De Leon v. McMurray, 5 Tex. Civ. App. 280, 23 S. W. 1038; Nunn v. Mayes, 9 Tex. Civ. App. 366, 30 S. W. 479; Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 665; Wolf v. Wilhelm (Civ. App.) 146 S. W. 216.

In support of the proposition that pedigree or the relationship of one person to another cannot be proven by general reputation, or by what neighbors or acquaintances thought or said upon the subject, we cite the following authorities of other states: Lamar v. Allen, 108 Ga. 158, 33 S. E. 958; Elder v. State, 123 Ala. 35, 26 South. 213; Watson v. Richardson, 110 Iowa, 673, 80 N. W. 413; In re Heaton’s Estate, 135 Cal. 385, 67 Pac. 321; De Haven v. De Haven, 77 Ind. 236; Cyc. vol. 16, pp. 1229, 1230, 1232, 1233.

In Re Heaton’s Estate, supra, the court said:

“It is the general repute, the common reputation in the family, and not the common reputation in the community, that is a material element of evidence going to establish pedigree. To hold otherwise would countenance a rule which could easily be turned to the accomplishment of great wrong and injustice.”

The foregoing authorities make it plain that the limitation placed upon the admissibility of hearsay evidence to establish pedigree excludes testimony of .what neighbors or acquaintances said upon the subject of the paternity or relationship of a person whose pedigree is in question, and hence affirm that relationship cannot be proved by general reputation in the community where such person lives or has lived. The testimony offered by appellants, the exclusion of which is made the basis of the assignment of error under consideration, was offered to prove by general reputation, in the community in which the appellee Mary J. Dickson lived, that she was the illegitimate daughter of Mary Ramsey, and not the daughter of Amelia Josephine Dickson, and, under the authorities, was inadmissible and properly excluded.

In regard to the second proposition, we deem it sufficient to say that in our opinion the fact that the witness Mary Plew testified that the appellee Mary J. Dickson was her daughter, .and that she gave her, when about four weeks old, to Mrs. Amelia Josephine Dickson, and the further fact that testimony was introduced by appellees tending to impeach Mrs. Plew’s veracity, did not render admissible evidence that “it was the common repute and general understanding and general reputation in the town of Milford that Mary J. Dickson was the daughter of Mary Ramsey,” for the purpose of supporting the credibility of said witness. We know of.no rule or principle of law that would authorize the admission of such testimony for such a purpose.

The third assignment of error is as follows:

“The court erred in sustaining the objection of defendants, and thereby excluding from the jury the testimony offered by plaintiffs through their witness W. R. McDaniel, who testified that he (said witness) was a member of the Dickson family, having married Miss Anna Dickson, a niece of W. T. M. Dickson, deceased, to the effect that he (the witness), as a member of said family, knew there was a tradition among the members thereof as to the maternity of the defendant Mary J. Dickson, and further knew that said tradition and family history was that said defendant was the daughter of one Mary Ramsey, and had been given to Josephine Dickson in her early infancy.”

There was no material error in excluding this testimony. The record discloses that the witness McDaniel was permitted to testify and relate any statement or declaration he had heard made by any member or relative of the Dickson family relating to the parentage of Mary J. Dickson, and that said witness and others did testify fully in this respect. The witness McDaniel said:

“I have heard from the members of the Dickson family, before this suit was filed, who the mother of Mamie Dickson (meaning Mary J. Dickson) is. I heard that from my wife 24 years ago, and my wife was a daughter of John F. Dickson and his wife, Carrie Dickson, and was a niece of W. T. M. Dickson. Before I married her she lived there in the house with those three families. I stated that my wife, about 24 years ago, told me that Mamie Dickson, the defendant in this case, was a Ramsey. My wife said she got her information from her mother. My wife was a little older than Mamie Dickson. My wife told me she had heard this from the time she was old enough to know these things. My wife told me where the baby came from. My wife told me that the child, Mamie Dickson, was brought there by old lady Ramsey and carried to Josephine Dickson’s room, and was brought there by the mother of Mrs. Plew, née Mary Ramsey. My wife stated that the actual mother of this baby was Mary Ramsey.”

In view of the broad latitude allowed by the court and the very full statement made by this witness of the declarations he had heard emanating from members and relatives of the Dickson family in regard to the parentage of Mary J. Dickson, appellants could have suffered no injury by the exclusion of the testimony here offered.

The fourth and fifth assignments of error present the same question raised in appellants’ second assignment, and has been disposed of adversely to their contention in what has already been said.

The next contention, which is made in the brief under appellants’ sixth assignment of error, is that:

“The court erred in overruling plaintiffs’ motion for judgment on the verdict of the jury for the recovery of an equal one-half undivided interest in and to the real estate belonging to the estate of W. T. M. Dickson, deceased, because it was affirmatively established as a fact that Mary J. Dickson is the natural daughter and not the legitimate daughter of Josephine Dickson, deceased, and as such natural daughter she has no rights of inheritance in and to the property, or any part thereof, belonging to the estate of W. T. M. Dickson, deceased, and the plaintiffs, as the next of kin and lawful heirs of the said W. T. M. Dickson, deceased, are entitled to inherit and to recover in' this suit an equal one-half undivided interest in and to the real estate owned and belonging to the estate of said W. T. M. Dickson, deceased; the defendant Mrs. ICate Dickson, as the surviving widow of said W. T. M. Dickson, being entitled by inheritance to recover in this suit the remaining one-half undivided interest in and to said real estate belonging to the estate of the said deceased.”

As heretofore shown, the sole question propounded by the court to the jury was: “Is Mary J. Dickson the natural daughter of Amelia Josephine Dickson?” And appellants contend that as the expression “natural daughter” has a well-defined meaning in law, and means a daughter born out of wedlock, the court only submitted to the jury the issue of whether or not Mary J. Dickson was the illegitimate child or daughter of Amelia Josephine Dickson, deceased, and, the jury having found that she was, the judgment entered was improper, the same being in direct conflict with and repugnant to the verdict; that, if any judgment can be entered upon such a finding, then it must'follow the verdict of the jury, and appellants must necessarily recover a portion of the land in controversy. Counsel for appellants, however, in a written argument filed in this court, express it as their opinion that the issue submitted by the court was not raised by the pleadings in the ease, and therefore no judgment could be entered upon the jury’s finding, but that the judgment must be reversed and the cause remanded for a new trial. That the term “natural child” has a technical meaning, and in law means an illegitimate child, a child born out of wedlock, as contradistinguished from one born in lawful wedlock, is unquestionably true, and it is likewise true that the judgment of the court must follow and conform to the verdict of the jury. The ingenious and able argument of learned counsel for appellants is predicated upon the assumption that the phrase “natural daughter,” in the question propounded to the jury by the court, was used in its technical, legal sense (that is, meaning an illegitimate daughter), or that no other meaning can be attached to it, and must therefore be dealt with in that sense. We do think this assumption is justified in this case. In the revised edition of the Century Dictionary, voL 6, the word “natural” is defined, and among other definitions given are the following: “Lawfully bom; legitimate; opposed to adopted and to illegitimate.” That the phrase “natural daughter” was used in the question propounded by the court in this case as meaning legitimate daughter, and that the jury so understood, there can be no doubt. The issue made by the pleadings and the evidence and tried by the jury was whether Mary J. Dickson was the daughter of Amelia Josephine Dickson or the daughter of Mary Plew. The question of whether or not Mary J. Dickson was the illegitimate' daughter of Amelia Josephine Dickson was in no way and in no sense whatever in the case. In their pleadings the appellees asserted that Mary J. Dickson was the daughter of Amelia Josephine Dickson. This was denied by appellants, and the charge made that she was the daughter of Mary Plew, formerly Mary Ramsey. In the introduction of testimony and throughout the trial appellants sought to show that Amelia Josephine Dickson did not give birth to a child at the time she claimed to have given birth to Mary J. Dickson, but that she had been given, about that time, the infant child of Mary Ramsey, and that Mary J. Dickson was that child. This was the controlling issue in the case, made by both the pleadings and the evidence; and, while the word “natural” was not essential to a proper submission of it to the jury, its use did not, in our opinion, have the effect of presenting another and different issue. The word “natural” was used in the question propounded to the jury in the sense of lawfully born, legitimate, opposed to adopted or illegitimate, and not as a legal term in its technical meaning. That the jury understood that this was the sense in which the word was used, and that, in answering the question asked by the court, they determined the real issue in the case, cannot be doubted. It is well understood that even legal terms will not be given their technical meaning, if it appears that they are employed in an entirely different sense. In such ease the meaning in which they are used will be adopted.

While the court, in entering judgment, cannot disregard the verdict of the jury, whether the evidence may have been such that the court would have made a decision contrary to that made by the jury, or even though the evidence be insufficient to sustain the verdict, yet where a special verdict, in response to a question propounded by the court, is in a sense ambiguous or uncertain, the court may look to the record to interpret it. Hatchett v. Hatchett, 28 Tex. Civ. App. 33, 67 S. W. 164; Rushing v. Lanier, 51 Tex. Civ. App. 278, 111 S. W. 1089. The qualifying word “natural,” used by the court in submitting the issue in this case, has different meanings. It means legitimate, as opposed to illegitimate, according to lexicographers, and so the special verdict in this ease may be considered uncertain. This being true, it may be considered with reference to the pleadings and evidence in the case in interpreting it. So considered, all doubt which might otherwise exist as to whether the real issue in the case was submitted and determined by the jury is removed. At any rate, we think, in view of the theory upon which the ease was tried, and the record made and sent to this court, it would be highly technical to hold that the issue raised by the pleadings and evidence was not submitted to the jury, but upon another and different issue, and that therefore the case should be reversed and remanded for a new trial. Indeed, we are clearly of the opinion that we would not be warranted in so holding.

The admission, on the hearing of appellants’ motion for a new trial in the court below, of the statement of jurors to the effect that they construed the phrase “natural daughter,” as used in the question submitted to them, to mean legitimate child (that is, a child born of the body and in lawful wedlock), furnishes no good reason for a reversal of the case. We regard that testimony unimportant in determining the question raised on the motion for a new trial and its admission harmless, if inadmissible.

Believing that no legal ground for a reversal of the district court’s judgment is shown, it is affirmed.
      ig^Ror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J. BUCK, J.

text:
    MUNDAY TRADING CO. v. J. M. RADFORD GROCERY CO.
    (No. 8200.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 22, 1915.
    Rehearing Denied June 26, 1915.)
    1. Payment &wkey;s75 — Actions—Evidence—Sufficiency.
    In a suit on an account, evidence held sufficient to justify a finding that a payment by defendant was to be applied on another’s account.
    [Ed. Note. — For other eases, see Payment, Cent. Dig. § 239; Dec. Dig. <&wkey;>75.].
    2. Partnership >&wkey;217 — Partners — Rights of.
    A partner is competent to show that he had authority to use the partnership funds to pay his individual debts, although that is not within a partner’s implied powers.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 419-425; Dec. Dig. <&wkey;217.]
    3. Partnership <&wkey;125 — Rights of Partner.
    A partner while the general and accredited agent of the firm and authorized to bind other members by his acts or contracts within the scope of the partnership, cannot, any more than any other agent, bind the firm by unauthorized acts.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 190; Dec. Dig. <&wkey;>125.]
    4. Partnership &wkey;>217 — Actions—Evidence —Authority.
    Evidence in an action against a partnership held insufficient to show that a partner, who paid out firm moneys in discharging his own debt, was authorized.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 419-425; Dec. Dig. &wkey;217.]
    Buck, J., dissenting in part.
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by the J. M. Radford Grocery Company against the Munday Trading Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, for appellant. R. W. Haynie, of Abilene, for appel-lee.
   BUCK, J.

J. M. Radford Grocery Company sued the Munday Trading Company, a firm composed of J. H. McLain and R. W. Warren, and the individual members of said partnership, on open account for $958.61, with interest at 10 per cent, and 10 per cent, attorney’s fees, alleging that defendant company had agreed to pay the same at Abilene, Tex. The account was for wares and merchandise alleged to have been sold and furnished by plaintiff, a wholesale grocery company, to defendants. Defendants, by way of special answer, admitted the purchase of the goods to the amount alleged by plaintiff, and the agreement to pay the rate of interest and the attorney’s fees alleged, but alleged a payment by defendants to plaintiff of $250, with which their account had not been credited, and alleged the refusal on the part of plaintiff to accept an offer on the part of defendants to pay the amount of said open account less the $250 alleged to have been paid and not so credited.

The case was tried before the court without the aid of a jury, and from a judgment for plaintiff against the firm, as a partnership and as individuals, in the sum of $1,-120.01, with interest at 10 per cent, from date of judgment, the defendants appealed.

The controversy is over this $250 payment, both litigants admitting the payment; but the plaintiff contended that such payment was made on account and for the benefit of the McLain Company of Knox City, and the defendants contended that such payment was made by and on account of and for the benefit of the Munday Trading Company of Mun-day, Tex. In addition to being a member of the partnership operating under the name of the Munday Trading Company, J. H. McLain was president of the McLain Company doing a mercantile business at Knox City, and during the years 1913 and 1914 both concerns bought goods from and were indebted to J. M. Radford Grocery Company. In the latter part of 1913, the McLain Company became involved in financial straits and later went into bankruptcy. During this stress it had a number of its checks turned down at the bank, one of which, in the sum of $500, was given to the Radford Grocery Company. Subsequently $250 of this amount was paid. On or about January 21, 1914, R. E. McDonald, manager of the Stamford branch of the J. M. Radford Grocery Company, and acting under instructions from the home office at Abilene, went to Knox City for the purpose of collecting the remaining $250 due on the dishonored Chech of $500, and, not finding Mr. McLain at home, and learning that he was in Munday, went over to Munday to see him about the matter. He testified, in substance, that he went from Knox City to Mun-day in an automobile, and that Mr. R. W. Warren was in' the car with him; that, when he reached Munday, he went to the place of business of the Munday Trading Company and saw Mr. Lindsey, who at that time was in the employ of the McLain Company, but later became the manager of the Munday Trading Company; that he asked for Mr. McLain, and was told that he was just fixing to go back to Knox county; that he went out in front of the store, and told Mr. Mc-Lain that he had the $500 check given theretofore by the McLain Trading Company and on which there was a $250 balance, and that he had come tx> collect that amount; that, acting under the instructions of Mr. McLain, Mr. Lindsey wrote a check for $250 payable to the J. M. Radford Grocery Company, and handed it to Mr. McLain and he signed it, said check being as follows:

“The Bank of Munday Unincorporated. No. -.
“Munday, Texas, January 21, 1914. Pay to the order of J. M. Radford Grocery Co.$250.00.
Two Hundred and Fifty .Dollars.
“Munday Trading Company,
“By J. H. McLain, Manager.”

That upon the receipt of said $250 check, he remitted the same to the J. M. Radford Grocery Company at Abilene, and the account of the McLain Company was credited with said amount. He further testified that nothing was said during this conversation between him and J. H. McLain, or between him and Mr. Lindsey, about the indebtedness owing the Radford Grocery Company by the Munday Trading Company, and that he was not at that time attempting to collect any indebtedness owing by the Munday Trading Company, but only the indebtedness due by the McLain Company; that he understood that said payment was made for the benefit of the McLain Company and in settlement of its account.

While the evidence is conflicting as to whether or not this $250 check was given in payment on the account of the McLain Company or of the Munday Trading Company, and while Mr. J. H. McLain himself testified that he intended said check as a payment on the Munday Trading Company account, yet we think the evidence, as a whole, sufficiently sustains the finding of the court that such check was in fact intended by both the representative of the J. M. Radford Grocery Company and J. H. McLain as a payment on the McLain Company account; but the majority of the court are of the opinion that, irrespective of the intention and understanding of Mr. McLain, representing the debtor, and Mr. McDonald, representing the creditor, as to the application of said payment, that in the absence of an express agreement, or facts to show an implied agreement, on the part of R. W. Warren, the other partner in the Munday Trading Company, that the partnership funds of the Munday Trading Company should be applied in payment of the debt of the McLain Company, that the court was not justified in concluding, as shown in paragraph 4 of his findings of fact, that such check “was in fact a payment by the Mc-Lain Company of'the remaining $250 on said $500 dishonored check, * * * and was not a payment on the indebtedness by said Munday Trading Company.” A partner is competent to-show that he had authority to use partnership funds to pay his individual debts. Young v. Read, 25 Tex. Supp. 113; Sanders v. Bush, 39 S. W. 203; Fore v. Hitson, 70 Tex. 517, 8 S. W. 292. A partner is deemed the general and accredited agent of the firm, and is authorized to bind the other members by his acts or contracts which are within the scope or objects of the partnership. When he exceeds its bounds, his acts are no more binding upon the firm than are the unauthorized acts of any other agent binding upon his principal. McAlpin v. Cassidy, 17 Tex. 449; Bell v. Beazley, 18 Tex. Civ. App. 639, 45 S. W. 401; Baldwin v. Richardson Co., 33 Tex. 16; Randall v. Merideth, 76 Tex. 669, 13 S. W. 576. But the general rule is that one partner may not apply the partnership funds or securities to the payment of his own debt. Goode v. McCartney, 10 Tex. 193; Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363. And before such application of partnership funds to the individual benefit of a partner can be made binding on the other member of the partnership, it must affirmatively appear that such individual member had authority to so apply the funds of the partnership. This, of course, may be shown by express authority or by a course of dealing theretofore had which would justify the conclusion that he had such authority. But we find nothing in this record that sustains the conclusion that J. H. McLain, or any other stockholder in the corporation known as the McLain Company, was authorized to apply the funds of the Munday Trading Company in payment of the McLain Company’s debts. And, in the absence of such showing, we are of the opinion that appellant’s second assignment of error, which assails the correctness of the court’s fourth finding of fact, should be sustained.

R. W. Warren, the other partner in the Munday Trading Company, testified, in part, as follows:

“I was president of the Bank of Munday in January, 1914. The McLain Company did not have any account with that bank at that time. This check, that was paid, was paid out of the funds of the Munday Trading Company. * * * I was not present when this check was delivered to Mr. McDonald. I do not know upon that account it was to be credited by ágreement between the parties. All that I know is that the Bank of Munday paid it. I did not have any interest in the McLain Company whatever.”

J. H. McLain testified, in part, as follows:

“I say that this check was paid on the Mun-day Trading Company account and not on the McLain Company account. * * * I don’t remember whether I gave the party to whom I gave this check any instructions concerning the check. X just handed him the check. I don’t have any recollection of telling him to apply it to the McLain account. * * * At the time I signed that check it was my understanding that that check was to be credited to the Munday Trading Company.”

The above-quoted testimony of Mr. Mc-Lain is set out in this opinion not for the purpose of showing that the trial court was not justified, in effect, that it was the intention of Mr. McLain and the representative of. the Radford Grocery Company that the $250 check should be applied on the McLain Company account; for, as before stated, in spite of a sharp conflict of evidence, on the whole we believe there is ample testimony to sustain the court’s finding that it was the intention of these two parties to have the check applied on the McLain account. But this testimony is quoted for the purpose of showing that even Mr. McLain did not testify that he had authority from his partner, Mr. Warren, to apply the partnership funds to the payment of the McLain Company account, and, in the absence of some testimony to that effect, it is our judgment that the judgment of the court below cannot be sustained. The trial was upon the theory that if McLain and the collector of the Radford Grocery Company intended that the check should be applied on the McLain Company account, that intention would of itself he controlling upon the issue of payment plea&ed by the Munday Trading Company. There was no finding by the court, and no evidence to support such a finding, that McLain had authority from Warren to apply funds belonging to the Mun-day Trading Company to the payment of the McLain Company’s debts. Furthermore, the proof is undisputed that the collector knew at the time of accepting the check that it was drawn upon funds belonging to the Mun-day Trading Company and not to the McLain Company.

Judgment reversed and cause remanded.

BUCK, J.

(dissenting). I cannot fully agree with the conclusions reached by the majority of the court as to what is the reasonable inference from the testimony in this case upon the vital question as to whether or not, in the application of the $250 check in payment of the McLain Company account, Mr. McLain had at least the tacit consent of his partner, Mr. Warren, to so apply it. Warren testified on behalf of the defendants, he was vitally interested in this matter, and he, as an experienced business man, and his áttorneys, well versed in the law, must have known that the question of his consent or acquiescence vel non in the application of this $250 check, as made, would largely determine the court’s action in sustaining such application or not. Nowhere in his testimony does he state, directly or indirectly, that McLain did not’ have from him authority to give this check of the Munday Trading Company in payment of the account to which it was applied. He testified as to his official relation with the Bank of Munday; of his lack of connection with the McLain Company ; of the automobile trip from Knox City to Munday with Mr. McDonald; of his partnership in the Munday Trading Company with McLain; of the application of the Munday Trading Company for its charter and the difficulties experienced in securing same; but upon this most important question he seems to have maintained a most discreet silence. The writer believes, not so much from what Mr. Warren said, but from what he did not testify, that the court was entirely justified in concluding that in fact Mr. McLain had the authority or acquiescence of his partner in the appropriation of the partnership funds to the purpose to which it was applied. The writer is of the opinion that the judgment of the trial court should be affirmed.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. PRENDERGAST, P. J. DAVIDSON, J.

text:
    LITTLE v. STATE.
    (No. 3602.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Dissenting Opinion June 25, 1915.)
    1. Criminal Law <@=>1037 — Appeal—Argument of Prosecuting Attorney — Exceptions.
    In a prosecution for murder, where the prosecuting attorney’s argument, alleged to have been improper, was not excepted to, nor special charges requested that the jury should not consider them, they were not ground for reversal, unless very inflammatory and without basis in the testimony, since remarks that will authorize a reversal when no special charge is requested must be such that their withdrawal, and an instruction not to consider them, would not ob- ■ viate their harmful effect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <@= 1037.].
    2. Criminal Law <©=3 728 — Trial—Argument of Prosecuting Attorney.
    In a prosecution for murder, where no request was made to instruct the jury not to consider the prosecuting attorney’s statements in argument, characterizing the defendant as a bloody assassin, and stating that if the jury turned loose the defendant on the evidence they might as well tear down their courthouse, burn their jail, and throw their statutes into the sea, and where the evidence showed that defendant had walked into a restaurant and shot deceased without warning while he was playing dominoes, the language was not so inflammatory and without basis in the testimony as to call for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. <@=> 728.]
    3. Criminal Law <©==>1037 — Appeal—Argument of Prosecuting Attorney — Exceptions.
    In a prosecution for murder, where the defendant claimed that deceased had been trying to get his wife away from him, a remark of the prosecuting attorney in argument that while such wife worked for him she was a mighty neat little negro woman and a mighty good worker was not prejudicial to defendant, calling for reversal, in the absence of a request for a charge that the jury should not consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <©= 1037.]
    4. Criminal Law <©=938 — New Trial — Grounds — Newly Discovered Evidence.
    In a prosecution for murder, where a witness, alleged to have newly discovered evidence, might have been procured at the trial by the use of due diligence, and where the evidence of such witness related simply to a fact prior to the homicide, amply proven at the trial, and not disputed by the state, there was no ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <@=>938.]
    Davidson, J., dissenting.
    Appeal from District Court, Trinity County ; S. W. Dean, Judge.
    Doc Little was convicted of murder, and he appeals.
    Affirmed.
    Poston & Dotson, of Groveton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at five years’ confinement in the state penitentiary.

The state’s evidence is that appellant walked into a restaurant where deceased, Luke Callahan, Mose Murphy, Oscar Barnes, and Weaver Goodman, were playing dominoes. The appellant walked into the restaurant, bought a cigar, when he wheeled around and commenced shooting, continuing to shoot until deceased fell, when he walked up to him and shot again, saying: “God damn you. I done got you.” Deceased was unarmed, and according to the state’s evidence made no demonstration whatever.

Appellant testified to going into the restaurant and buying a cigar, when he says, deceased, as he (appellant) struck a. match, reached around and pulled Mose Murphy’s coat back and made some sort of sign, and then run his hand in his bosom, as he did so, raising up in the chair, when he (appellant) remarked, “Xou son of a bitch,” and began shooting; that he does not know how many times he shot, but he thought, from remarks and threats that had been communicated to him, his life was in danger. He further testifies that some time prior to this, deceased had been the cause of him and his wife separating. The record shows they had been separated some six months, and appellant’s wife had been cooking for Mr. Campbell during that time and at the time of the homicide, but appellant says that they had agreed to make up and live together again: that he saw deceased, and told him they had made up, and not to bother his wife further, and deceased agreed not to do so. Instead, though, of doing so, when his wife went to visit her father some days before the killing, deceased followed her up there and was seen in her company. However, the record clearly shows that appellant had met deceased in what is termed the “Commissary Store” since being informed of that fact, and this was not the first meeting when the homicide took place. No bills were reserved to the Introduction of any testimony, no special charges requested, and no exceptions reserved to the charge of the court as given. The only exceptions in this record relate to the argument of counsel for the state. It appears that counsel said in his address to the jury;

“Gentlemen, what an example it would be to the people of this county for you to return a verdict of not guilty against this bloody assassin. * * * If you turn this man loose on such evidence, you might as well tear down your courthouse, burn your jail, and throw your statutes into the sea. * * * They claim that the dead man broke up defendant’s home and had intercourse with his wife. They have offered no evidence of this but the family of defendant. Could they find no one else that knew of this? I know this: That while she worked for me, she was a mighty neat little negro woman and a mighty good worker. * * * It is time to call a halt in Trinity county and gó to enforcing the law. It would humiliate me for such a murderer to be turned loose upon the peonie of the county. No one would be safe. Who knows but that the next time it would be one of you gentlemen or me. I haven’t long to stay here, but I have some grandchildren growing up, and for their sakes I’d like to see killing stopped in Trinity county. Gentlemen, the defendant has asked for a suspended sentence. It would be a travesty upon justice, a travesty on law, and a travesty on humanity to suspend the sentence of this murderer and turn him loose on the county.”

The court in approving the bills states that no request was made to instruct the jury not to consider these remarks, or any of them, and says, further, in approving some of the bills, that he was not sure the identical language was used, but something like it was said, and which he did not think was improper argument. As we understand it, it has always been the rule in this court that improper argument will not be ground for reversal of a case, unless such argument is excepted to and special charges prepared and presented to the court, instructing the jury not to consider such remarks, unless the remarks are very inflammatory and without basis in the testimony. In the event the court refuses to give the instructions and the remarks are improper, then the case will be reversed. If no request is made to have the jury instructed not to consider the remarks, it is only in eases where the remarks are so improper, hurtful, and harmful that their withdrawal would not cure the error. We do not think the above remarks are of that inflammatory character, and the verdict of the jury evidences the fact, that the passions and prejudice of the jury were not aroused. To term the appellant “an assassin and murderer” is to use strong terms. But if the state’s evidence is true he shot deceased while he was sitting quietly at one table playing a game of dominoes, with no thought that death was near, and it was an assassination. The argument that “if they turned appellant loose' on such evidence, you might as well tear down the courthouse, burn up your jail, and throw your statutes into the sea,” has been frequently held not to present ground for reversal, where no special charge was requested instructing the jury not to consider such remarks. Just and fierce invectives, based upon the facts in evidence and all legitimate inferences therefrom is not discountenanced by the courts. Glascow v. State, 50 Tex. Cr. R. 635, 100 S. W. 933; Tune v. State, 49 Tex. Cr. R. 445, 94 S. W. 231; Choice v. State, 54 Tex. Cr. R. 517, 114 S. W. 132; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064; Sue v. State, 52 Tex. Cr. R. 124, 105 S. W. 804.

The evidence showed that appellant’s wife had been working at Mr. Campbell's for six months immediately preceding the homicide, and his remark that while she worked for him she was a mighty neat little negro woman and a mighty good worker certainly could not prejudice appellant’s case. His contention was that his anger was aroused because deceased was trying to take this woman away from him, and one whom he was desirous of getting to live with him again. Certainly these few words of praise of her could not injure him. After carefully reviewing the authorities we have come to the conclusion that the remarks above present no ground for reversal, in the absence of any request that the jury be instructed not to consider them. Remarks that will authorize a reversal when no special charge is requested must be highly inflammatory and hurtful, and be such remarks that their withdrawal and instruction not to consider them will not remove their harmful effect. If they are not of that character, then a request must be made to instruct the jury not to consider them, or they will not present error. We think this the true rule underlying all of our decisions and the rule shown to be practically observed by all the courts, by the citation of authorities in Am. & Eng. Enc. of Law & Prac. vol. 5, p. 297.

The alleged newly discovered evidence is to no new fact, but only one more witness to facts testified to on the trial by other witnesses, and is such that it could have been discovered by the use of due diligence. The witness was not present when the homicide occurred, and his testimony is simply to a fact that occurred prior to the homicide, amply proven and not disputed by any evidence offered by the state.

I am of the opinion the judgment should be affirmed.

PRENDERGAST, P. J.

I concur; and it is ordered that the judgment be affirmed.

DAVIDSON, J.

(dissenting). Appellant was allotted by the jury five years’ confinement in the penitentiary for murder.

I do not care to discuss the facts. Several bills of exception were reserved to arguments of state’s counsel. The first bill recites that counsel for the state used the following language:

“What an example it would be to the people of this county for you to return a verdict of not guilty against this bloody assassin.”

The second bill shows the same counsel used this language:

“Gentlemen, if you turn this man loose on such evidence, you might as well tear down your courthouse, burn up your jail, and throw your statutes into the sea.”

The facts show defendant killed deceased because of adultery with his wife. The third bill shows ’the same counsel used this language :

“They claim that the dead man broke up defendant’s home and had intercourse with his wife. They have offered no evidence of this but that of the family of defendant. Gould they find no one else that knew of this? I know this: That while she [meaning defendant’s wife] worked for me, she was a mighty neat little negro woman and a mighty good worker.”

There was no evidence, recites the bill, of this before the jury. The fourth bill recites that said counsel used this language:-

“Gentlemen, it is time to call a halt in Trinity county and go to enforcing the law. It would humiliate me for such a murderer to be turned loose upon the people of the county. No one would be safe. Who knows but that the next time it would be one of you gentlemen or me. I haven’t long to stay here-, but I have some grandchildren growing up, and for their sakes I’d like to see killing stopped in Trinity county.”

The humiliation of state’s counsel is not a reason for conviction of a defendant. He must be tried and convicted upon the law and facts. There are other comments that might be made on these remarks.

Another bill recites this language was used:

“Gentlemen, the defendant has asked for a suspended sentence. It would be a travesty on justice, a travesty on the law, and a travesty on humanity to suspend the sentence of this murderer and turn him loose on the county.”

It is unnecessary, in view of the authorities in Texas, for me to discuss the impropriety of the language used. The judge qualifies these bills by stating that appellant did not request a charge withdrawing same from the jury. The judge seemed to be of the impression, as appellant did not request such a charge or such charges, that therefore he was justified in not sustaining the exceptions to the remarks at the time the language was used. Many opinions have been written as to when an argument is improper and when a charge should be requested and when not, and when the language is fatal independent of requested instructions. It is unnecessary for me to review these cases; they are part of the history of the appellate courts in Texas. Some of the language used, and most of it, has been condemned so often by the decisions of this and other courts in this state I deem it unnecessary to discuss (hem. For a collation of the authorities, see Branch’s Crim. Law, § 62; Liner v. State, 70 Tex. Cr. R. 75, 156 S. W. 211; Grimes v. State, 64 Tex. Cr. R. 64, 141 S. W. 261; Johnson v. State, 63 Tex. Cr. R. 50, 138 S. W. 1021; Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849; Thompson v. State, 33 Tex. Cr. R. 475, 26 S. W. 987; Clark v. State, 23 Tex. App. 263, 5 S. W. 115; Parker v. State, 43 Tex. Cr. R. 530, 67 S. W. 121; Garrett v. State, 52 Tex. Cr. R. 255, 106 S. W. 389; Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Ware v. State, 49 Tex. Cr. R. 413, 92 S. W. 1093; Taylor v. State, 50 Tex. Cr. R. 560, 100 S. W. 393; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Stone v. State, 22 Tex. App. 192, 2 S. W. 585; Robbins v. State, 47 Tex. Cr. R. 315, 83 S. W. 690, 122 Am. St. Rep. 694.

One of the bills recites that state’s counsel made a statement of fact, that is:

“I know, this: That while she [meaning defendant’s wife] worked for me, she was a mighty neat little negro woman and a mighty good worker.”

The bill recites there was no evidence of that fact before the jury. This was a statement of a matter of materiality, and, not being testified, should not have been used or alluded to in argument. Counsel could not testify in a speech; he should have been sworn. His argument should be based on matters properly before the jury, and he should not make statements before a jury of matters not in evidence. If he desires to testify he may do so, but he must do so under oath. Davis v. State, 54 Tex. Cr. R. 236, 114 S. W. 366; Bearden v. State, 46 Tex. Cr. R. 146, 79 S. W. 37; Tillery v. State, 24 Tex. App. 273, 5 S. W. 842, 5 Am. St. Rep. 882; Exon v. State, 33 Tex. Cr. R. 469, 26 S. W. 1088; Weatherford v. State, 31 Tex. Cr. R. 536, 21 S. W. 251, 37 Am. St. Rep. 828; Fuller v. State, 30 Tex. App. 565, 17 S. W. 1108; Hunnicutt v. State, 18 Tex. App. 523, 51 Am. Rep. 330.

Where argument is obviously hurtful and prejudicial, a reversal will follow. Smith v. State, 55 Tex. Cr. R. 569, 117 S. W. 966; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 995, 100 Am. St. Rep. 849. These arguments and statements of state’s counsel were so obviously wrong and of such a hurtful nature that this judgment ought to be reversed, although charges were not requested; exceptions were taken at the time, and the court declined to withdraw the remarks from the jury, or to control counsel in his argument. I, therefore, cannot agree to the affirmance of this case, and believe the judgment ought to be reversed and the cause remanded for another trial.
      <@=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. DAVIDSON, J.

text:
    HAGGART v. STATE.
    (No. 3645.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Criminal Law @==>369 — Evidence—Other Offenses — Rape.
    In a prosecution for rape on a child under 15, her evidence of an act of intercourse prior to that charged, although committed more than a year before the institution of the prosecution, so that prosecution for it would have been barred by limitation, was admissible as evidence showing the relations of the parties, bearing on the probability of the commission of the act charged, under the rule that evidence of one crime is admissible to prove another, when they are so related that the inference follows.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <§= 369.]
    2. Rape <§=44 — Evidence — Defendant’s Treatment of Prosecutrix.
    In a prosecution for rape on a girl under 15, whom defendant was keeping in his home for her father, defendant was properly allowed to show that all the time she was with him he gave her the tenderest care and treated her as he would his own child.
    [Ed. Note. — Eor other cases, see Rape, Cent. Dig. § 63; Dec. Dig. <S=>44.]
    3. Criminal Daw <§=>369 — Evidence—Other Offenses — Rape.
    In a prosecution for rape, evidence of an act of intercourse prior to that charged, tending to show the relations of the parties and the probability of the commission of the offense, could be considered only as bearing on the probability of the commission of the act charged, since a conviction could be had only for such act.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. <@=>369.]
    4. Criminal Law <@=>369 — Evidence—Other Offenses — Rape on Another.
    In a prosecution for rape on a 13 year old girl, testimony that defendant had told a witness that he had had intercourse with a child of 11, and that it was surprising how young a girl a man could have intercourse with, was inadmissible, but would not have been had prosecutrix been of the age mentioned, or defendant had used language indicating that he referred to her.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822 — 824 ; Dec. Dig. <§~~> 369.]
    6. Criminal Law <@=>956 — Motion for New Trial — Prejudice of Jurors.
    Where, on motion for a new trial, affidavits are presented tending to show prejudice and prior opinions of jurors as to the guilt of accused, evidence on the hearing should disprove such affidavits conclusively to justify a refusal of a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <§=> 986.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Frank I-Iaggart was convicted of rape, and he appeals.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and Ms punishment assessed at 99 years’ confinement in the state penitentiary.

The facts would show that appellant and O. M. Bowers were engineers on the Ft. Worth' & Denver Railroad. Mr. Bowers’ wife dying several years ago, he married again, and, the relations between his second wife and little daughter Helen not being pleasant, he placed her with appellant, who agreed to care for her, and the evidence would show that, in so far as keeping her in school, feeding and clothing her, his attention was all that could be desired. At the time of the alleged rape, having then been,an inmate of appellant’s home for some seven years, Helen testifies that, prior to the first act. of intercourse, appellant had fondled her person, etc. She testified that the first time appellant ever had carnal intercourse with her was on Thursday before school began in September, 1913, and that on that occasion he picked her up in his arms and carried her into a bedroom and had intercourse with her on that occasion; that he had intercourse' with her on a number of occasions after that time, but she was not able to fix any dates, except the last act of intercourse, which she says took place about the 15th day of May, 1914, just after school closed. The only two dates she undertakes to fix is just before school opened in the fall of 1913 and just after school closed in the spring of 1914, but she says it occurred on several other occasions, the dates of which she has nothing to tie her memory, but these two she is specific about. It will be noticed that the entire period testified in regard to covers a period of only about eight or nine months. The indictment in tMs case is based on the last act of intercourse, which is alleged to have occurred about the 15th day of May, 1914.

The indictment was not returned until March 25, 1915. However, the prosecution was instituted by the filing of a complaint some time prior to this time, apparently in December, 1914, shortly after Helen left the home of appellant and returned to her father’s home.

The first question presented by appellant is that although this court had held in the case of Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, that, in a case of rape of a girl under 15 years of age, acts of intimacy of the person committing the offense on a young girl might be shown (even other acts of intercourse), as tending to show the relations existing, yet, as the first act testified to was barred by limitation, it was inadmissible. In that case we reviewed the authorities in this state and in other states, and held that the views of Judge Hurt, announced in Sharp v. State, 15 Tex. App. 171, correctly announced the true rule of law. He held:

. “The next question presented for a determination is this: ‘Were former threats against the girls, violent and brutal assaults and batteries, which tended to subjugate the wills of the girls to that of the appellant, admissible?’ Upon the clearest principles of right and justice, as well as by that provision of the Code which expressly authorizes the jury to look to and consider health and strength, and all other circumstances of the case. Law should be founded upon reason and common sense. Would any rational man believe that it would require the same character of force or threats to overcome resistance, or produce just cause for fear of death or great bodily harm, in a case in which the defendant had, by a course of brutal terrorism, completely subjugated the will of his victim, that it would in a case where the parties were on something like an equal footing — a case in which such control had not been acquired? In the cases at bar the girls were very young (one being only 13 years old), and for days and months they had been the subjects, not only of threats, but of the most brutal treatment, especially the younger girl, Amanda. Can it be questioned that, by such treatment, the will of this girl, yea, of either, may not have been effectually crushed, and her acts made to conform to the defendant’s commands, unaccompanied by either force or threats? We are of the opinion that the former conduct of the defendant toward these girls was properly admitted in evidence.”

It Is true our decisions had not always been harmonious on this question, but after full investigation we arrived at the conclusion that:

While, “as a general rule, evidence is not admissible to show that the accused has committed a crime wholly distinct from and independent of that for which he is on trial_, but there are cases in which evidence of other like offenses by the defendant is relevant and admissible. If several crimes are so intermingled, blended, or connected that they form an indivisible criminal transaction, and a complete account of the transaction for which the accused is being tried cannot be given without showing the others, any or all of them may be usually shown, at least where the offense for which he is being tried is itself a detail of the whole criminal scheme. Generally speaking, it may be said that evidence of other crimes is admissible for the purpose of showing (when it fairly tends to do so) motive, intent, the absence of mistake or accident, _ common scheme, or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others.”

We think this the true rule of law underlying the decisions, not only in this character of case, but in all eases of crime. And while it is true that appellant could not be indicted nor tried at this time, nor at the time the prosecution was begun in this case, for the first act testified to by the little girl, as more than one year had elapsed, but the dealings of the defendant with her from the time she became an inmate of his home would have a tendency to throw light on and show whether or not their relations (their state of intimacy) were such that appellant probably would and did commit the crime alleged in May, 1914. We discussed this question so thoroughly in the Battles Case, supra, we do not deem it necessary to do so again, and hold the court committed no error in admitting the testimony showing the relations existing between appellant and Helen from the time she entered his home until the act complained of is alleged to have been committed. Appellant was permitted, and properly so, to introduce evidence showing that, all the time she was an inmate of his home, he gave her the tenderest care and treated her as he would his own child, unless guilty of the offense here alleged. These matters throw light on whether or not he would probably have committed the offense alleged, and would aid the jury in passing on that issue, and we might here say that his course of conduct during the whole time is such that would tend strongly to induce one to believe that his contention that Eugene White, and not appellant, was the father of Helen’s baby. However, in holding the testimony admissible, we think the court erred in his charge, wherein he instructed the jury the purpose for which said testimony was admitted. The criticism of this paragraph of the charge is that it is upon the weight to be given the testimony as to other acts of intercourse. The criticism is just, and the paragraph is erroneous and harmful, and, as worded, should not have been given. The court should have instructed the jury that appellant was on trial alone for the act of intercourse alleged to have occurred on or about May 1,1915, and he could not be convicted of any other act, if they, under the evidence, found from the evidence, beyond a reasonable doubt, that any other act did occur, and they could not convict for the offense alleged in the indictment to have occurred on May 1, 1915, unless they found he did have carnal knowledge of Helen on or about that date; that they could only consider the evidence of other and different acts of intercourse, if the jury found they in fact occurred, for any purpose other than as they might aid them in passing on whether an act of intercourse occurred between the parties on or about the date charged in the indictment, if such evidence would aid them in determining that question. Evidence of intv macy, course of dealing between the parties, and other acts, in this character of case, is admissible solely for the purpose of aiding the jury to determine whether or not an act of intercourse took place at the time charged, as are the appellant’s other acts, course of conduct, etc., toward the girl, admissible as tending to show that he would not and did not commit the act complained of.

The objection to the testimony of the witness Fitz that in December, 1913, appellant had said to him he (Haggart) had had intercourse with an 11 year old girl, and it was surprising how young a girl a man could have intercourse with, should have been sustained. Helen, the prosecuting witness in this case, was 13 years old at that time, and appellant, if he made the remark, used no language to individuate her or language that would indicate he' had reference to her. Tomlin v. State, 25 Tex. App. 676, 8 S. W. 931; Yancey v. State, 45 Tex. Cr. R. 366, 76 S. W. 571. If Helen had been a girl of that age, or appellant had used language that would indicate that he referred to her, the testimony would be admissible.

There are several other bills in the record, but we do not deem it necessary to discuss them, as we do not think they or either of them present error.

In filing his motion for á new trial, appellant attaches the affidavit of H. C. McCain, who swears that C. S. Farrar, one of the jurors in this case, said in his presence and hearing, prior to being impaneled on the jury:

“That he knew Frank Haggart, and he believed that he was guilty of this offense and ought to be hung when tried.”

S. H. Taylor swears that another juryman, E. R. Braley, said in his presence and hearing:

“That he (Braley) knew Frank Haggart was guilty as they ever make them, and he would willingly join a mob to mob him; that he did not believe the people of Potter county ought to let Haggart go to trial, but should mob him publicly.”

It is true the two jurors deny making these statements, but Mr. F. W. Dohoney swears that he was present when the juror Farrar was talking in the presence oí McCain, and he (Dohoney) had heard the juror say:

“There is no question about his guilt. He should either be sent to the penitentiary or hung.”

To say the least, these affidavits indicate that perhaps appellant has not had a trial by a fair and impartial jury; and, when such affidavits are made, the evidence heard on the hearing for a new trial should show conclusively that the jurors named had not expressed nor held an opinion prior to being impaneled on the jury before refusing to grant a new trial. A man, under our law, is entitled and should be given a trial by a .fair and impartial jury.

The judgment is reversed, and the cause remanded.

DAVIDSON, J.

I agree to the reversal of the case, but not with all the reasoning, especially the admission of other acts of intercourse. These do not come within any of the exceptions as I have always understood the law.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    CARREL v. STATE.
    (No. 3639.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Assault and Battery @=>64^-Deeenses— Recovering Possession oe Child.
    Defendant, on going to a hospital, turned over his 6 year old child to one to be taken care of until he was able to leave the hospital and care for the child, and was arrested on a charge of vagrancy, and sued out a writ of habeas corpus, and obtained an agreement whereby such person was to keep the child until the charge was disposed of. The charge was dismissed on agreement that defendant would not interfere with the child’s custody until it was determined whether he was entitled thereto. Held, that on the refusal of the one in possession to surrender the child and in attempting to get possession of the child, he had no right to strike the person in possession.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 90-92; Dec. Dig. @=>64.]
    2. Witnesses @=>268 — Examination—Cross-Examination.
    In a prosecution for an assault committed in attempting to get possession of his child, where the'one in possession had testified in detail on cross-examination as to how she came in possession of the child and why she kept him, the exclusion of defendant’s question as to her right to its custody was not error.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. @=>268.]
    3. Assault and Battery @=>96 — Issues and EvibENCE — Accidental or Unintentional Assault.
    In a prosecution for an assault committed by defendant while attempting to,get possession of his minor child under a claim of right, evidence held to raise the issue of an accidental or unintentional blow, so that the refusal to submit it to the jury was reversible error.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. @=> 96.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    E. S. Carrel was convicted of assault, and he appeals.
    Reversed and remanded.
    Graves & Houtcbens, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of making an assault on Mrs. J. S. Nash, and his punishment assessed at 30 days’ imprisonment in the county jail.

The evidence would show that appellant came to Ft. Worth and had with him a six year old child; that he took sick and was confined in the hospital. While in the hospital he turned the child over to Mrs. Nash to be taken care of. Mrs. Nash says she took pity on the child, and upon appellant giving her a written agreement that she could take and keep the child until he got able to leave the hospital and was able to work and take care of the child, she took it. She says when appellant left the hospital she got some work for him at the Park Hotel whereby he could pay his room rent. After this appellant was arrested, charged with vagrancy, and placed in jail. It appears he was left there some days without being tried, when he sued, out a writ of habeas corpus, asking for his release, before Judge Swayne. At the hearing it was agreed by the attorneys that Judge Swayne should release appellant, but Mrs. Nash was to keep the child until the charge of vagrancy was finally disposed of, and this charge was agreed to be taken up on the following Monday. There being no jury in attendance, the case could not be tried, and the prosecuting officer told appellant’s counsel that he would dismiss the vagrancy charge if appellant would not molest the custody of the child until it could be de-determined whether or not he was entitled to its custody. As soon as this conversation took place between the county attorney and appellant’s counsel, they called Mrs. Nash, and demanded that she surrender the child to-appellant. This she declined to do, giving as her reason that she had been instructed by the court not to do so, and she would not surrender the child until she saw Judge Swayne and the deputy county attorney looking after this matter, Mr. Phillips. Appellant through his attorneys then sued out a writ of habeas corpus before Judge Young, who-informed them he could not hear the ease until the following Saturday. A complaint was then filed, charging the child with being a delinquent child. When proceedings had reached this stage, appellant, from the record, acting under the advice of his counsel, secured a taxicab and drove to the store of Mr. McDaniel, where Mrs. McDaniel and Mrs. Nash had gone with the child. As these ladies were leaving the store, appellant grabbed the child and undertook to take it away from the ladies. However, they held on to the child, and Mrs. McDaniel and Mrs. Nash both testily that appellant struck Mrs. Nash a blow on the breast, which Mrs. Nash ¿ays almost knocked her down; that her lungs hurt her for several days on account of the blow. At this time Mr. McDaniel rushed to the relief of the ladies, and appellant jumped in the taxicab and drove off. Appellant testifies to getting the taxicab and going after the child; that he did try to take the child away from the ladies, believing he had a right to do so, as he says it was his child, but he denies striking Mrs. Nash, and says if he did strike her it was by reason of being knocked up against her by Mr. McDaniel when he came to the relief of the ladies.

The main contention of appellant is that he had the right to use all necessary force to regain possession of his child, and if he did strike Mrs. Nash, he was using no greater force than seemed to him to be necessary to accomplish that purpose. The question is, under the circumstances in this case, did appellant have the right to use violence to repossess himself of the child, even though he was legally entitled to its custody? He knew the officers in Ft. Worth doubted his right to the custody of the child; that they were investigating the matter. He had voluntarily turned it over to Mrs. Nash, and had agreed that she should keep it until the following Monday at least, in open court, if he did not agree that it should be kept until the vagrancy charge was finally disposed of. lie also knew on Monday that Mrs. Nash was only keeping the child at the request of the officers, and she told him that if Judge Swayne and the deputy county attorney said so, she would surrender the child to him. He sued out a writ for the custody of the child, but when he learns that this cannot be heard until the following Saturday, he does not go to Judge Swayne nor the deputy county attorney and ask them why they had instructed Mrs. Nash to keep the child, if his agreement was only that she should keep it until Monday. Instead of doing so, he gets a taxicab, hunts up the lady, and undertakes to take it by force. A person may have a perfectly legal right, but he cannot use force to obtain his rights if another is in possession. Our law does not sanction this. If he could have obtained possession of the child without the use of violence, he had a right to do so, but he had no right to use violence to obtain possession. If he had been in possession of the child, he would have the right to use all necessary force to retain its custody, but a different rule prevails where another is in possession, for no one has the right to use violence to another to gain a right he believes himself entitled to. His whole course and conduct on this occasion tended to show that he did not believe his acts were within the pale of the law. He had no right to strike Mrs. Nash under the circumstances.

In a bill it is shown that appellant asked Mrs. Nash, ’“What right did you have to the custody of Roy as against Mr. Carrel?” The court sustained an objection to this question. As Mrs. Nash had detailed fully on cross-examination, at the request of appellant, how she came in custody of the child, why she kept him, and all in detail, there was no error in the ruling of the court.

However, appellant testified that Roy was his son, and that on April 14, 1915, he attempted to regain custody of the child. But he says he did not strike Mrs. Nash intentionally; that while he was trying to take the child, the woman screamed, and a man rushed up and struck him a blow on the side of the neck; that this Mow knocked him up against some one, and it may have been this blow knocked him against her. M. M. Hays swears that appellant did not intentionally strike Mrs. Nash; that he saw McDaniel strike appellant. Appellant requested the court to instruct the jury:

“There can be no assault unless the violence inflicted was unlawful and intentional, and if violence was inflicted, if it is done accidentally or unintentionally, the person inflicting such violence is not guilty of an assault, and you are instructed that you must acquit appellant, if you believe from the evidence that the said violence, if any, was unintentional and accidental.”

We are of the opinion the issue of an accidental or unintentional blow should have been submitted to the jury. It was raised by the testimony offered in behalf of appellant, and because it was not done, the case should be reversed and remanded'.

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


author: DAVIDSON, J.

text:
    DENMAN v. STATE.
    (No. 3619.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    Criminal Law <g=507—Witnesses—“Accomplice”—Who is.
    Under Pen. Code 1911, art. 498, making it unlawful for any person to procure any female to visit a room for immoral purposes, a female inducing accused for a money consideration to procure men to visit her room for an immoral purpose, is an accomplice of accused, and he cannot be convicted on her uncorroborated testimony.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dee. Dig. 507.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Bill Denman was convicted of crime, and he appeals.
    Reversed and remanded.
    Heidingsfelders, of Houston, for appellant. John H. Grooker, Cr. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State,
   DAVIDSON, J.

The information charges that appellant—

“then and there did unlawfully invite, solicit, procure, and allure Grace Johnston, then and there a female, to visit and he at a particular place, to wit, at a room in a place known as the Capitol Hotel, in the city of Houston there situate, for the purpose of having' unlawful sexual intercourse with a male person, and to then and there take part and participate in immoral conduct with men and women.”

Grace Johnston testified that she induced appellant to make dates for her with men to have sexual intercourse, and in pursuance of her request he made a date with a man and she had sexual intercourse with him. It is unnecessary to go into a detailed statement of the facts. The above is the substance of the case. The testimony for the state is made out alone on her evidence. Appellant testified directly the opposite to what she did, and stated that he never made any dates for Grace Johnston to meet any man at any time in the hotel; that she had requested him to do so, but he refused, and, among other things, stated because Mr. Rodgers, the proprietor, did not permit such things; that he had never seen any men and women come into a room in the hotel that had no business there. So we have the question fairly and squarely put by the state and met by the defendant. The question is whether or not, under the testimony of Grace Johnston, she would be an accomplice. The statute (article 498, Revised Penal Code) provides that:

“It shall be unlawful for any person to invite, solicit, procure, allure or use any means for the purpose of alluring or procuring' any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, or to take part, or in any way participate in any immoral conduct with men or women, • or to use at such place any intoxicating liquors, or to give to any person the name and address, or either, or photograph of any female for the purpose of enabling the person to whom such name, address or photograph of such female is given and furnished, to meet and have unlawful sexual intercourse, or to bring 'about or procure such unlawful sexual intercourse with such female by any other person.”

The question at issue is whether or not, under the terms of this statute, Grace Johnston would be an accomplice. If appellant had originated the matter, and had approached Grace Johnston for the purpose of making a date, and she had subsequently accepted or employed him, we would have a different question presented. But the state’s evidence shows that Grace Johnston went to appellant and asked him to make dates or procure men to visit her room, and that he did so, for which she paid him $1 for each man brought to her room, or she carried to his room. She originated the crime, or series of crimes, inducing appellant to conform ■with her wishes. While this would not relieve appellant of criminality, still under the terms of this statute we are of the opinion that she would be an accomplice. There is to be noted a marked distinction between the initiation of this matter by her and the initiation of it by the defendant. If Grace Johnston could be convicted under the terms of this statute, clearly she would be an accomplice. To relieve her of that position in the case, it would have to be asserted, and maintained as the law, that she would not be guilty of any criminal act under our statutory laws. If she could not be criminal in any way, then the proposition to the mind of the writer would be correct that she would not be an accomplice.

These matters have been discussed from different standpoints by the different decisions. In the case of a suicide, for instance, a suicide is not punishable under our law; therefore it has been held that the party who furnishes the means by which the suicide is committed, he not being present and acting in tbe taking of the medicine or inflicting of the wounds that bring about death, would not he an accomplice and could not be punished, for the reason that the suicide who takes his or her own life has committed no crime. That is, in order to convict an accomplice, there must be a principal, and, of course, all principals are subject to punishment. The distinction, however, was kept up in those cases that if the party furnishing the means was present and aided the suicide in taking the medicine, or was himself inflicting the injury, etc., although with the consent of the suicide, yet he would be guilty, not as an accomplice, but as a principal, because he was doing the act that brought about the death and was present at the time and place. The distinction was also kept up and the question adjudicated in that line of cases to be found in Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071, and in Bush v. State, 68 Tex. Cr. R. 299, 151 S. W. 554. It was held in both cases, and in the authorities cited supporting the decisions, that where a party initiated a crime, although an officer, he would be an accomplice ; that he could not avail himself of his official capacity to induce men to commit a crime, and yet shield himself from the lawful consequences of the criminal act. The line there was clearly drawn as to officers who become connected with the subsequent crime as at detective and those cases where the officer assisted in initiating or originating the crime In one he connected himself after some of the acts had been performed, not to aid in the crime, but to gather testimony or put himself in position where he could assist in enforcing the law. In the first in stance, however, where he Initiated it, he becomes criminal himself, because he brings about a crime, and cannot shield himself from punishment or the consequences of his criminal act.

We are of the opinion the woman Grace Johnston is an accomplice under the line of reasoning above mentioned. This is the question to be decided in the case, and, believing as we do that she is an accomplice, will reverse-the judgment; and it is accordingly ordered to be reversed and remanded.
      <§=pIToí other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes