text:
    ETHRIDGE v. STATE.
    (No. 3232.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 721) — Trial — Argument oi? Counsel.
    In a prosecution for slander, where accused did not take the stand in his own behalf, argument of counsel referring to accused’s failure to place on the stand his particular friend, who was present when the alleged slander was uttered and was also present at trial, is not objectionable as a reference to accused’s failure to testify himself, though it was stated in the last of the argument that it was not denied accused uttered the slander.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    2. Libel and Slandeb (§ 169) — Criminal Prosecution — Evidence—“Slander.”
    In a prosecution for a violation of Pen. Code 1911, art. 1180, declaring that if any person shall falsely and maliciously or fálsely and wantonly impute unchastity to any female, he shall be guilty of slander, where the complaint and information wére in the words of the statute, the refusal of a requested special charge that, unless accused made the statements alleged wantonly and falsely, he should be acquitted is properly refused; for he was guilty if he falsely and maliciously made them.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 444; Dec. Dig. § 159. For other definitions, see Words and Phrases, First and Second Series, Slander.]
    3. Criminal Law (§ 1099) — Appeai^Statement oe Facts.
    Where the attorneys failed to agree upon a statement of facts, and the county judge, in preparing the statements, made a complete statement of the facts in evidence on the main trial and then made a separate statement of the facts of the evidence hoard on the motion for new trial, which was placed after the principal statement, there was no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    4. Criminal Law (§ 1144) — Appeal — Presumptions.
    Unless the statement of facts contains the evidence presented by accused in support of his motion for new trial, it will on appeal be presumed that the lower court correctly ruled in denying the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    5. Criminal Law (§ 1099) — Appeal—Statement oe Facts — Time oe Filing.
    Statements of facts showing the evidence heard on motions for new trial will not be considered on appeal unless filed within term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from Taylor County Court; E. M. Oversbiner, Judge.
    Henry Ethridge was convicted of slander, and he appeals
    Affirmed.
    Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant appeals from a conviction of slander. We have carefully read and considered the 'statement of facts and record in this ease more than once. The evidence amply sustains the verdict

Appellant contends, and presents the question in various ways, that the evidence did not establish that the slanderous language used by him was with reference to the young girl it was alleged it was 'used about. It is unnecessary to detail the evidence. No useful purpose could be subserved by doing so. There can be no question from the evidence but that the language used was about the young girl and no other. The court’s charge required the jury to so believe before they could convict.

The uncontradicted evidence shows that the slanderous language was used by appellant in the presence and hearing of six persons. The state introduced three of these, who testified positively to its use. Appellant introduced another one of these witnesses, who testified about other matters, but appellant did not have him testify on this subject. The other two of these witnesses were not introduced by either side. The record clearly indicates that these witnesses, or John Reed, one of them, especially, was friendly and favorable to appellant, and present at the trial. By one.of his bills of exceptions he complains that the attorney specially employed in behalf of the state used this language in his argument to the jury:

“John Reed was present down there on the road that night where the defendant uttered these false and malicious words against this young lády. John Reed is here in attendance upon this court, and the defendant hasl not seen fit to put John Reed on the witness stand to deny that he made the statement, and it has not been denied that the defendant said it.”

Appellant claims that this statement was an allusion to the fact that the appellant himself did not testify, and claims that it is reversible error. He asked no written charge of the court that the jury should disregard it. In our opinion, it is not a reference to the appellant’s failure to testify, and it does not present error. Link v. State, 164 S. W. 995, and cases therein cited; Gatlin v. State, 163 S. W. 428, and cases therein cited. It is needless to collate and cite the many cases to the same effect.

Tlie complaint and information aver that appellant did “falsely and maliciously and falsely and wantonly impute,” etc., a want of chastity to the young girl, naming her, in the presence and hearing of certain persons, naming them, and averring the language used. This followed the language of the statute. P. C. art. 1180. The evidence clearly raised and would sustain a verdict more especially that appellant used said language falsely and maliciously as well as falsely and wantonly. Appellant requested only one charge, which is to this effect:

Before you can convict the defendant you must find beyond a .reasonable doubt that he made the statements alleged in the complaint, and that they referred to said girl, and that they were falsely and wantonly made, and, unless you so find, you will acquit him.

It will he seen by this that this special charge would have submitted only that said statements were falsely and wantonly made and to acquit him if they were not, leaving out entirely the other elément that they were falsely and maliciously made. The court did not err in refusing to give this special charge. It has always been held by this court that, if the special charge requested in a misdemeanor case is not correct as applicable to the case, the court must refuse it. This charge would have erroneously told the jury to acquit appellant, unless he falsely and wantonly made the statements, when, as a matter of fact, he was guilty if he falsely and maliciously made them. Lawrence v. State, 20 Tex. App. 536; Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Hobbs v. State, 7 Tex. App. 118; Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354. It is unnecessary to cite the many other cases so holding.

By appellant’s only other bill he complains that the court committed reversible error by making up in the statement of facts on the main trial also a statement of facts of the evidence introduced on the hearing of the motion for new trial. The attorneys failed to agree upon a statement of facts. The duty therefore devolved upon the county judge. He made and certified to a complete statement of facts of the evidence on the main trial. Following that, but entirely separate and distinct, he also made a statement of facts of the evidence heard on the motion’ for new trial and certified to that; the certificate to each being entirely separate'and distinct. This, of course, presents no error.

The only other question necessary to be considered is appellant’s complaint that the court should have granted his motion for new trial, because of newly discovered evidence. He attached the affidavits of certain persons of what he claims to be newly discovered evidence which he claims they would testify. The state contested this motion. The record, without question, shows, which was proper, that the court, in considering that motion, heard evidence thereon. What that evidence was is not shown by any bill of exceptions filed within term time, nor’ by any statement of facts filed within term time. There is, as stated above, a statement of facts made by the judge of the testimony he heard on said motion, but it was no't filed until some time after the court had adjourned. After hearing the evidence the court overruled the motion, and we must conclude that the evidence he heard clearly justified him in so acting. That we cannot consider that purported statement of facts has been too long and well established to require discussion. In Graham v. State, 163 S. W. 730, we cited some of the cases, holding:

“Statements of facts, showing the evidence heard on motions for new trial, under the uniform and an unbroken line of decisions, in order to be considered by this court, must be filed within term time, and, unless so filed, it cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Tarleton v. State, 62 S. W. 748; Knight v. State [64 Tex. Cr. R. 541], 144 S. W. 977; Bailey v. State, 144 S. W. 1005. See, also, Jordan v. State, 10 Tex. 502; Sharp v. State, 6 Tex. App. 658.”

The record in this case shows no reversible error, and the judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    THETFORD et al. v. STATE.
    (No. 3237-39.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Bail (§ 94) — Bail Bonds — Forfeiture.
    The statute having provided that proceedings’to forfeit bail bonds shall be placed on the civil docket and governed by the rules governing other civil actions, a party appealing from a judgment of forfeiture must file briefs in the lower court and in the Court of Criminal Appeals as in civil actions; hence an appeal from such judgment must be dismissed where no briefs were filed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. § 94.]
    Appeal from District Court, Denton County ; C. F. Spencer, Judge.
    Proceeding by the State of Texas against J. B. Thetford and others for the forfeiture of bail bonds. From several judgments forfeiting the several bonds, the defendants appeal.
    Appeals dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

These three cases are by the same appellants and present exactly the same question. The judgment appealed from in each case is a final judgment on a forfeited bail bond. Our statute expressly provides that such cases shall be placed on the civil docket and the proceedings shall be governed by the same rules governing other civil actions.

Our law requires an appellant in such case »to file a brief in the lower court and this court as in civil actions. No brief is filed in this case, and there is no indication that one has ever been filed in the lower court. Therefore, upon the motion of the Assistant Attorney General, each of said cases is hereby ordered dismissed. Lewis v. State, 38 S. W. 205; Sparks v. State, 47 S. W. 976; Mack v. State, 57 S. W. 811; Bringhurst v. State, 37 S. W. 757; Conrad v. State, 9 Tex. App. 674. It is needless to cite other authorities.


text:
    WILLIAMS v. STATE.
    (No. 3233.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Weapons (§ 17) — Criminal Prosecution —Questions for Jury.
    In a prosecution for unlawfully carrying a pistol, where the defense is that the defendant was a traveler at the time, the question whether he was a traveler in fact is one for the jury.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    2. Weapons (§§ 11, 17) — Criminal Prosecutions — Burden oe Proof — “Traveler.”
    The burden is upon one who is arrested while carrying a weapon upon his person to show that at the time he was a traveler — that- is, one on a real journey — and the mere fact that he was crossing back and forth from one county or state to another is not decisive on the question.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14, 20, 22-33; Dec. Dig. §§ 11, 17.

    For other definitions, see Words and Phrases, First-and Second Series, Travel.]
    3. Weapons (§ 17) — Criminal Prosecution —Evidence.
    In a prosecution for unlawfully carrying a pistol, evidence held sufficient to warrant the judge in finding that the defendant, who had gone across the line to another state to procure some whisky, and was then returning, was not a traveler.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. § 17.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Gillis Williams was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Bibb & Scott, of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully carrying a pistol. The facts are clearly established and undisputed. ' Appellant lived in' the city of Marshall, in said county. He had ordered some whisky expressed to him at a town just across the Texas line in Louisiana, 26 miles from Marshall. He had heard that other parties had theretofore been arrested for bringing whisky from Louisiana into Marshall, and he wanted to get his whisky without any trouble. Late one evening he went in his buggy from Marshall eight miles to a station on the Texas & Pacific Railroad, where he put up his team, and soon thereafter took a Texas & Pacific train to said station on the same railroad just across the line in Louisiana. When he got to the Louisiana station he procured his whisky and waited for a train.- A Missouri, Kansas & Topeka train passed through the Louisiana station into Texas before the Texas & Pacific train arrived returning to Marshall. He took the Missouri, Kansas & Topeka train and went back thereon to a station in Texas, where it crossed the Texas- & Pacific line. The Missouri, Kansas & Topeka train did not go to Marshall. He got off the Missouri, Kansas & Topeka train at the station in Texas and waited for a later train on the Texas & Pacific. When that reached the station he got on it, intending to go back where he left his buggy, get his buggy, and take his whisky back into Marshall. On his return, when he had gotten into Texas, the sheriff observed him, and found a pistol on his person, which he had carried with him from his home on this trip, and the sheriff arrested him. His sole defense was that he claimed to be a traveler. The case was tried before the judge without a jury.

Who is a traveler under our pistol statute is not defined thereby, and has not otherwise been defined. This court has all the time held.that whether or not an accused is a traveler under the statute is a question for the jury. Shelton v. State, 27 Tex.App. 443, 11 S. W. 457, 11 Am. St. Rep. 200.

There are many decisions of this court holding under a given state of facts that a person is a traveler, and others he is not a traveler. The question practically resolves itself into whether or not the accused is on a real journey. The question of crossing the county line from one county to another, or the state line from this into another state, back and forth, really is not decisive. Of course, the burden is always on an accused to show that he is a traveler under this statute to avoid conviction. There is no question but that he carried the pistol on his person.

In our opinion, the judge below was authorized to find, as he did, that appellant was not a traveler. Hickman v. State, 160 S. W. 382; Stanfield v. State, 34 S. W. 116; Goss v. State, 40 S. W. 725; Harris v. State, 77 S. W. 610; Blackwell v. State, 34 Tex. Cr. R. 476, 31 S. W. 380; Jones v. State, 45 S. W. 596; Darby v. State, 23 Tex. App. 407, 5 S. W. 90.

The judgment will be affirmed.


author: HARPER, J.

text:
    BAKER v. STATE.
    (No. 3208.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Rape (§ 47) — Prosecution—Evidence.
    Evidence that the prosecutrix before making her complaint informed the witness that accused had never had sexual intercourse with her, and that another witness was in such a place that she must have heard the struggle if there had been a rape by force, as claimed by prosecutrix, is material.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §66; Dec. Dig. § 47.]
    2. Rape (§ 51) — Prosecution—‘Evidence— Insufficiency.
    Evidence held, insufficient to sustain a conviction of rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    Appeal from District Court, Young County; Edgar Scurry, Judge.
    B. M. Baker was convicted of rape, and he appeals.
    Reversed and remanded.
    Arnold & Arnold and Kay & Akin, all of Graham, for appellant. C. E. Lane, Asst. Atty. Gen., .for the State.

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

   HARPER, J.

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

We need not discuss the ground complaining of the action of the court in overruling appellant’s application for a continuance as the case will be reversed. We will say, though, that the testimony of Dr. J. W. Gallaher and Mrs. C. S. Wynns would.relate to material matters. Dr. Gallaher, it is stated, would testify that prosecutrix had told him that appellant had never at any time had sexual intercourse with her; this at a time when there was no reason to falsify; whereas this record discloses that the lady made the complaint when it appeared that a most serious charge would probably be brought against her. It is stated that Mrs. Wynns occupied the adjoining room on the night of the alleged rape; that only a thin plank partition separated the rooms; that she heard no outcry or complaint of any character on that night. When it is considered that ■ prosecutrix remained at the home of appellant several days thereafter, that no one heard an outcry that night, that she made no complaint that night, nor the next morning to any one — in fact, made no complaint for months thereafter — the testimony becomes material in a case of rape by force.

In fact, we would be unwilling to sustain a judgment of guilt of rape by force on testimony of the character shown in this record. The prosecutrix, Miss Johnnie Graves, says she was 20 years of age at the date of the alleged offense. Appellant was running the Mountain Side Hotel, at Graham. Prosecutrix worked for appellant at this hotel, waiting on the table and doing other work. She says one night he came to her room and committed the act with which he is charged. She says about 11 o’clock on the night of January 10, 1913—

“Beecher Baker came in there and kneeled down by my bed and began to play with me, and so directly he said, T am going to lay down by you,’ and he did. I did make an effort at that time to prevent him from getting in the bed with me or laying down by me; I was trying to get him not to — just begging him not to. He was not undressed when he came into the room. I had disrobed. The defendant did have intercourse with me at that time, on that occasion. I guess that I understand what you mean by intercourse. It was without my consent. I did put forth efforts to prevent him from having intercourse with me there at that time. While he was dojng this act, I was just fighting and crying; that was all. The act did cause me pain and bloodshed. As to what he said to me with reference to this matter, he told me that if I .told it he would kill me; he told me I was ruined if I did not marry him; said that he was going to marry me. I said, ‘You are not going to marry me.’ He said ‘I am.’ He said, T did it because I would die .before anybody else could have you, and now they cannot.’ He said that he was going to get rid -of his wife.”

That is all the evidence there is in the record tending to show rape by force. She admitted she remained in appellant’s employ until in February; that she made no complaint to any one the next morning, nor for months thereafter. She also admitted the rooms adjoining the one she occupied that night were also occupied. The occupants of the other rooms testify they heard no noise of any character that night. Appellant’s father and mother testified that they occupied one of the adjoining rooms, and that the partition was so thin that often after the prosecutrix had gone to bed they lay in their bed and talked with her, speaking in an ordinary tone. The prosecutrix does not deny this, and they swear positively they heard no cry or noise of any character that night. In fact, appellant’s mother testifies she was in the room with the prosecuting witness that night waiting on her, and that appellant did not come in the room. It further appears that the next morning after this alleged rape the prosecutrix went about her work at the hotel apparently in her usual frame of mind, complaining to no one that she had been outraged! Charles Thig-pen, Charles Osborn,- Claud Rutherford, Mrs. Bridges, Will Bridges, Mrs. Gus Rutherford, Mrs. Fanny Rutherford, and other witnesses testify that the reputation of prosecutrix for virtue and chastity was bad. There is testimony in the record which would support a finding that appellant had sexual intercourse with prosecutrix at different times, but not under circumstances which would render him guilty of rape by force. It will be noted in the prosecutrix’s testimony she says appellant promised to get rid of his then wife and marry her. Witnesses testify that the prosecutrix had told them while working at the hotel she would be Mrs. Baker soon, and the record discloses that no cry of rape was raised by her until months thereafter. It further appears from the testimony of Dr. Terrell that shortly before this indictment was found that the prosecutrix sent for him, having heard that he had a letter reflecting on her. After she had read the letter, which was written by appellant, she became angry. Then the doctor testifies:

“I did have a conversation with her with reference to Beecher Baker having carnal intercourse with her. She seemed to be very angry with Beecher Baker, and she told me if he fooled with her that she was going to kill him, or something of that kind — if she came across him she would kill him — and I laughed and asked her where was the gun. She was a little excited. She said ‘Can’t I get him for rape?’ I said, ‘Did he rape you?' She said, ‘Well, not that I know of.’ I said, ‘What did he do ?’ She said, ‘He came to my room one night about midnight, and came to the bed and sat down on the bed? I said, ‘Did he have intercourse with you?’ and she said, ‘No.’ I said, ‘Did he get in the bed with you?’ and she said, ‘No.’ I said, ‘Did he put his hands on you?’ She said, ‘He only took hold of my hand and sat down on the side of my bed.’ I said, ‘Well, was there any one close by; if you were frightened did you say anything?’ She said, ‘No.’ I believe that she told me that some of the family were in the room adjoining her. I asked her why she came to me. I said, T have never been your particular friend; X just hardly know you when I see you;’ and she said that John Dolman told her to come to me, and he told her that she would have to swear everything that she could against Baker; if she did not; she would get into trouble herself. Now, that may not be the exact words, but that was the meaning of it; might have said that they would send her to the penitentiary, or something of that kind.”

It further appears from the record that there was some investigation being had. as to whether Baker, appellant, had tried to poison his wife, and she had been informed that she might be implicated in it. It was after this, and other matters unnecessary to recite, that she brought the charge of rape against appellant. As before stated, under such circumstances we do not feel inclined to let the judgment stand, when the prosecu-trix by her testimony shows no great resistance was made, and the other testimony would indicate that, if an act of intercourse took place on that occasion, it was by mutual consent. It may be that the prosecutrix and appellant were criminally intimate, and the testimony would suggest that probably this was true, but, if he did undertake to poison his wife in order that he might marry the prosecutrix, of course he would be guilty of a grave criminal offense, but not of rape on the prosecutrix.

Having this- view of the case, we do not deem it necessary to discuss the other questions raised.

The judgment is reversed, and the cause is remanded. ^


text:
    WALKER v. STATE.
    (No. 3235.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Criminal Law (§ 933) — Verdict—Waiver of Error.
    The right to object to the failure of the verdict to make any recommendation of suspension of sentence was waived where the accused first complained thereof in his amended motion for a new trial filed on May 16th after rendition of verdict on May 6th.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2283-2292; Dec. Dig. § 933.]
    12. Criminal Law (§ 351) — Evidence — Admissibility — Threats.
    Testimony that the accused told the witness several hours after the killing that he was not going to be arrested and that all he wanted was one shot at the constable was admissible to to show a threat to resist arrest, regardless of whether it constituted a part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dee. Dig. § 351.]
    3. Homicide (§ 307) — Submission of Issues —Evidence.
    Where the state’s evidence presented only the question of murder, and the defendant’s evidence raised only the question of manslaughter and accidental killing, the court properly refused to instruct on aggravated assault.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Handy Walker was convicted of manslaughter, and appeals.
    Affirmed.
    Hawkins Scarborough and W. W. Ballew, both of Corsicana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of manslaughter for killing his wife, and his punishment fixed at three years in the penitentiary. He properly filed his plea for a suspended sentence. The court submitted the question to the jury and told them that, if they found him guilty and assessed his punishment at five years or less, to find, (1) if he had ever been convicted of a felony in this or any other state, and (2) whether his reputation was good or bad, and if they -found both of these questions in the affirmative that they could, in their discretion, if they saw fit, recommend that his sentence be suspended, and, if they so desired, to so state in their verdict. The jury returned a verdict merely finding him guilty of manslaughter and assessing his punishment at three years, saying nothing about the question of the suspension of his sentence. This verdict was received. He made no objection whatever to it at the time, nor did he then in any way seek to have the jury find a verdict on said issue or any of the matters necessary to find in his favor thereon. The verdict was rendered May 6, 1914. On May 8th he filed his motion for a new trial, but at that time and therein made no complaint whatever about the verdict as to suspension of sentence. For the first time, on May 16,1914, in his- amended motion for new trial he complains in this particular.

It would have been proper for the jury to specifically find, as directed by the court, on this question and in the several particulars as told by the court, but he cannot sit by and have the verdict received and the jury discharged, and, when it is too late for the court to properly remedy the matter in the trial, complain of the failure of the jury to find on said matters. This court in many cases has held that, where the court submitted the suspended sentence to the jury, and the jury made no finding thereon, or where they found that he had not before been convicted of a felony, and that his reputation was good, but failed and omitted to make any recommendation of the suspension of the sentence, that the presumption was that the jury refused to recommend a suspension, and have all the time sustained such verdicts and judgments. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; King v. State, 162 S. W. 890; Bowen v. State, 162 S. W. 1146; Cook v. State, 165 S. W. 573.

In a still more recent case (Mills v. State, 168 S. W. 88) we held, in effect, that when it was shown by proper bill, as it was in that case, that the jury could not agree as to a finding on the suspension of sentence, and the verdict itself showing that fact, that it was error for the court to refuse to require a finding or grant a new trial when he received such verdict. But, as is stated in that case, proper objection was timely made, and the fact shown that the jury could not agree upon that issue and expressly so stated in their verdict, but that case is no authority for setting aside the verdict in this case, because no objection was made at the proper time, and the record nowhere, even now, shows that the jury failed or refused to agree upon that issue.

Several hours — perhaps five — after the killing, appellant told Otto Simmons that he was not going to be arrested; that all he wanted was one shot at the constable (a white man). The court, over appellant’s objection that this evidence was not res gestse and irrelevant, immaterial, and inadmissible, properly admitted it. Evidence of resisting an arrest is always admissible against an accused. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 160 S. W. 361. And, of course, a threat to do so is likewise admissible. The question of res gestse does not apply. Such evidence is an admission by an accused, whether res gestse or not.

The only other question urged by appellant is that the court erred in refusing to submit to the jury a proper charge on aggravated assault. There was no error in this. The evidence in no way raised or suggested this offense. The state’s case, without question, raised only an unlawful homicide — murder. That of appellant raised only the question of manslaughter and accidental killing. The court submitted both of these issues, and, in addition, negligent homicide. The jury found against appellant on both negligent homicide and accidental killing, and found him guilty of manslaughter. The evidence shows: That deceased and appellant were husband and wife; she rather a young woman ; he rather an old man. Trouble arose between them. He claimed that she was guilty of improper conduct with another negro man. Their differences resulted in their mutual separation. They divided their property, and deceased went back to her former home, he remaining where he was, or going elsewhere. That on the day of the killing he passed the house where deceased was some 200 yards; she and her woman companion seeing him do so. After he had got that distance, he turned, came back to the house with his gun loaded, and the two women in the house did all they could to prevent hi§ entering it. He demanded that his wife should come out. She refused. He then attempted to force the door open. The two women resisted this. He shot either through the door, or the wall of the house right at it. He claims it was accidentally; the facts would justify the jury to believe purposely. When this shot was fired, the two women left that door. He ran around the house to the other side and forced an entrance through another door. The two women tried to avoid his shooting them, the deceased seeking to get, and remain, behind tfye other woman. In their struggles they ran over a stove and fell upon the floor. The other woman succeeded in getting'up. The deceased did not. From the state’s side, the appellant then, while his wife was lying on the floor helpless, deliberately pointed his gun at her, shot her in the back with a shotgun and killed her. He claimed that he struck her with the gun while she was on the floor and that it was accidentally discharged; that he did not intend to kill her. As soon as he killed her he left the house and went away. There can be no question but that this evidence and none of the other, which is unnecessary to recite, raised or suggested the issue of aggravated assault. Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679; Yzaguirre v. State, 48 Tex. Cr. R. 514, 85 S. W. 14.

The judgment is affirmed.


text:
    RUTHERFORD v. STATE.
    (No. 3213.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Indictment and Information (§ 159) — Amendment — Power op Court.
    Where an indictment, .charging the offense of pursuing the occupation of an itinerant physician without payment of the tax required, used the word "physicial” instead of “physician,” the court, under the direct provisions of White’s Ann. Code Cr. Proc. art. 587, is without authority to substitute “n” for “1”; the matter being one of substance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §« 505-514; Dec Dig. § 159.]
    2. Indictment and Information (§ 159) — Sufficiency.
    An indictment improperly amended in a matter of substance will not support the conviction.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. § 159.]

      3. Physicians and Surgeons (§ 6) — Itinerant Physician — Who are.
    Where accused for over a year preceding the prosecution had been a resident of the city of V. and had practiced medicine in the county in which such city was situated, he cannot be convicted of pursuing the occupation of an “itinerant physician” without payment of the tax required, even though he was not authorized to practice in the' county, because he had not obtained a liecnse and registered as a physician.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    J. S. Rutherford was convicted of pursuing the occupation of itinerant physician without having paid the tax required, and he appeals.
    Reversed, and prosecution ordered dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted under an indictment charging him with engaging in and pursuing the occupation of a physician, traveling from place to place, without having paid the tax levied on said occupation, and his punishment was assessed at a flue of $75, being the amount of the state and county tax on such occupation.

In that part of the indictment wherein it was intended to allege that appellant “followed the occupation of physician, traveling from place to place,” etc.,. the word “physician” was written “physicial”; an “1” being written where it should have been an “n.” Appellant, among other grounds, moved to quash the indictment because there was no such occupation taxed as a “physicial.” The court refused to quash the indictment, and ordered the clerk to change the indictment so as to read “physician.” This the court had no authority to do, as this word was a matter of substance in the offense charged and not mere matter of form. An indictment cannot be amended in matter of substance. Article 587, White’s Ann. Cr. Proc. And it is a rule of láw that an indictment thus altered will not support a conviction. Calviv. State, 25 Tex. 789; Edwards v. State, 10 Tex. App. 25. Had the trial court not undertaken to change the wording of the indictment, the whole context might have been sufficient, notwithstanding this mistake in spelling the word “physician,” but we cannot countenance the alteration of indictments in matters of substance after they have been returned into court.

Again, we do not think the evidence in this case would sustain the conviction. He was prosecuted for pursuing the occupation of itinerant physician, going from place to place, in the practice of that profession, without paying the tax levied by law. The evidence conclusively shows that he had been a resident of the city of Vernon, in the county of Wilbarger, for more than a year at the date of the institution of these proceedings, and would show him guilty of violating that provision of the Code prohibiting any one from practicing medicine without having obtained a’ license from the medical board and registering same, and not the article preventing one from practicing medicine as an itinerant physician without having paid an occupation tax. Had he paid the occupation tax under the evidence in this case, he would not have been authorized to practice medicine, and, as the evidence clearly shows that his fixed residence since he has been in' this state has been at Vernon, he would not be liable for the tax levied on traveling physicians. Taking this view of the case, it is unnecessary to discuss the other questions raised.

The judgment is reversed, and the prosecution ordered dismissed.


text:
    LAMB v. STATE.
    (No. 3204.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    On Motion for Rehearing, Oct. 28, 1914.)
    1. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Rulings on Evidence.
    A bill of exceptions in a murder case alleged that, the widow of deceased was called by the state and asked if, before defendant killed deceased, during her husband’s entire lifetime, she ever heard him make any threat against defendant, and answered that she had not, to which defendant objected as an attempt to prove deceased’s character, because it related to a purported statement by deceased long prior to the killing, and because defendant did not rely on threats as a provocation. The court overruled the objection, and defendant then and there excepted and tendered his bill, which was approved, signed, and ordered filed. Held., that the bill was too meager and insufficient to require review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    2. Homicide (§ 158) — Evidence—Threats.
    Where, in a prosecution for homicide, accused on cross-examination of a state’s witness sought to show intense hostility by deceased against him which had continued for a considerable time, the state, was properly permitted to ask deceased’s widow if she ever heard her husband, during his entire lifetime, make a threat of any kind against defendant.
    TEd. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    3. Criminal Law (§ 363) — Res Gestae.
    In a prosecution for homicide, evidence as to what was said and done by defendant and deceased from the time they first came in view of each other at the time of the killing, that defendant when leaving the scene immediately thereafter had six-shooters in each hand, and when the constable attempted to arrest him resisted arrest and shot the constable, was admissible as res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    4. Criminal Law (§ 396) — Reception of Evidence — Rebuttal.
    Where accused, on cross-examination of a state’s witness, sought to show intense hostility by decedent toward him, and various acts of unkindness, the state was properly permitted to Show that deceased had no ill will toward defendant, and that the alleged acts of hostility never occurred. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 861, 862; Dec. Dig. §396.]
    5. Homicide (§ 309) — “Manslaughter” — Adequate Cause.
    Where in a prosecution for homicide there was no evidence suggesting adequate cause, manslaughter was not in the case.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    6. Homicide (§ 295) — Provoking Difficulty — Evidence.
    In a prosecution for homicide, evidence held to justify an instruction on provoking difficulty by defendant to kill deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    On Motion for Rehearing.
    7. Criminal Law (§ 866) — Triai>-Quotient Verdict.
    In a prosecution for homicide, evidence held to require a finding that the jury, though having arrived at the term of punishment by the quotient method, had not agreed to be bound thereby, and hence that the verdict was not void for that reason.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2063; Dec. Dig. § 866.]
    8. Homicide (§ 43) — “Manslaughter”—Elements.
    “Manslaughter” necessarily involves adequate cause and- existing passion, and if they do not coexist such offense is not shown.
    • [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.

    For other definitions, see Words and Phrases, First and Second Series, Manslaughter.]
    9. Homicide (§ 43) — Manslaughter—“Influence of Sudden Passion.”
    “Influence of sudden passion” means that the provocation must arise at the time of the commission of the offense, that the passion Is not the result of a former provocation, and that the act must be directly caused by the passion arising out of the- provocation.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.

    For other definitions, see Words and Phrases, Second Series, Immediate Influence.)
    10. Homicide (§ 43) — Manslaughter—“Adequate Cause.”
    By “adequate cause” is meant such as would commonly produce a degree of such passion or emotion in a person of ordinary temper as would be, sufficient to render the mind incapable of cool reflection.
    ' [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 67; Dec. Dig. § 43.

    For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.]
    11. Homicide (§ 250) — Degree of Offense —Manslaughter—Adequate Cause.
    In a prosecution for homicide, evidence held to show that deceased did nothing at the time of the killing except to try to protect himself from his assailant, and was therefore insufficient to produce adequate cause so as to reduce the killing to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    Appeal from District Court, Tarrant County; James W. Swayne, Judge.
    John Lamb was convicted of murder, and he appeals.
    Affirmed.
    Mays & Mays and Lattimore,' Cummings, Doyle & Bouldin, all of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of murder and his punishment assessed at 30 years in the penitentiary. This is a companion case of the same appellant, recently decided. 168 S. W. 534.

Appellant complains that a new trial should have been granted because, in effect, the jury arrived at its verdict by lot; that is, a quotient verdict. The court heard evidence on this issue which is shown by one of appellant’s bills. Mr. Branch, in his Criminal Law (section 844, subd. 2) says:

“If jurors take the average as a means of securing an expression as to their views in respect to the punishment (making an experiment), and with no agreement in advance to be bound by the result, 'or if agreement is broken, the court’s finding of no error will not be disturbed on appeal. Leverett, 3 Tex. App. 217; Cravens, 55 Tex. Cr. R. 521, 117 S. W. 156 [16 Ann. Cas. 907]; Goodman, 49 Tex. Cr. R. 191, 91 S. W. 795; Keith, 56 S. W. 629; Pruitt, 30 Tex. App. 159, 16 S. W. 773; Barton, 34 Tex. Cr. R. 613, 31 S. W. 671; Hill, 43 Tex. Cr. R. 586, 67 S. W. 506.”

The trial judge was justified in holding, as he did, that the verdict in this case was not an illegal one under this line of authorities.

Appellant has several bills of exceptions to the admission of certain testimony. We will give it first on this subject in full. Omitting the number, style of the case, and the court below, it is:

“Be it remembered that upon the trial of the above styled and numbered cause Mrs. John Guest, widow of deceased, was called to the stand by the state and was asked if, prior to the time that defendant killed John Guest, during her husband’s entire lifetime, she ever heard him make any threat of any kind or of any character whatever against John Lamb, and answered that she did riot. To this the defendant objected as an attempt to prove the character of the deceased; because it relates to a purported statement by deceased long prior to the killing, and because defendant does not rely upon any threats as a provocation for the killing. The court overruled the objection, and defendant then and there excepted, and now tenders this his bill of exception and asks that same be approved, ordered filed, and made a part of the record herein; which is accordingly' done.
“Approved Apr. 1st A. D. 1914.
“Jas. W. Swayne, Judge 17th District Court, “Tarrant County, Texas.”

Clearly, under the rules established by the Supreme Court when it had criminal jurisdiction and by this court upon its organization, in accordance with the statute, this bill is so meager and insufficient as to neither require nor authorize this court to consider the question sought to be raised. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 326, 140 S. W. 1112; sections 857 and 1123, White’s Ann. C. C. P.; Best v. State, 164 S. W. 996.

However, we have considered the admissibility of the evidence attempted to be raised by all of his bills, and in our opinion the evidence was properly admitted.

The evidence objected to by these various bills is along these lines:

First. As to what was said and done by appellant and by deceased from the time they first came in view of each other at which time the killing occurred, and that the appellant when leaving the scene of the killing immediately after it had two six-shooters, one in each hand, and when the constable attempted to arrest him for killing deceased he resisted arrest and shot the constable. All this testimony, we think, was clearly admissible as res gestas. Girtman v. State, 164 S. W. 1010, and cases cited; Washington v. State, 19 Tex. App. 521, 53 Am. Rep. 387; Wiseman v. State, 32 Tex. Cr. R. 454, 24 S. W. 413; Koller v. State, 36 Tex. Cr. R. 496, 38 S. W. 44; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Johnson v. State, 30 Tex. App. 420, 17 S. W. 1070, 28 Am. St. Rep. 930; Tooney v. State, 8 Tex. App. 452; Elmore v. State, 78 S. W. 520; Stanley v. State, 44 S. W. 519; Ency. of Ev. p. 615; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 168.

Second. Appellant by his cross-examination of the state’s witnesses — he introduced none — attempted to show an intense hostility by deceased against him which had continued for quite a length of time, .so much so as to estrange his mother and sister with whom he lived from him, and they sought protection by leaving his home and going to deceased’s and that deceased in effect denied him access to his mother and sister; that deceased carried arms — guns—for the purpose of killing him and deceased was seeking to kill him and have others to do so, all growing out of what he claimed was the deceased’s attempt to control the property and prevent his mother from dividing hers with him and turning it over to him. We do not attempt to give the particulars of these matters, nor any of them in detail. The state undertook to meet appellant’s contentions and the evidence brought out by him along this line by having various witnesses testify of their own knowledge that the deceased had no ill will against appellant and, in effect, denying all of appellant’s claimed acts of hostility and claimed intentions and plans to kill him. When he raised these questions, and by his examination of the witnesses on cross-examination introduced evidence tending to support his contentions, the state had a right to meet it by the proof it introduced to show the contrary.

Manslaughter was not in the case. There is no evidence whatever even suggesting adequate cause. • . I

Appellant objected to the court submitting provoking a difficulty, at all, and made many objections to the charge itself. From a careful study of the evidence we believe provoking a-difficulty by appellant for the purpose of killing the deceased was raised by the evidence and the court correctly submitted it. None of appellant’s objections to the court’s charge in this respect show any reversible error.

The court did not err in overruling appellant’s motion to quash the indictment.' The grounds of the attack of the indictment in this case we regard as more than ordinarily hypercritical. One objection is wherein in the indictment it is alleged that appellant killed the deceased with malice “aforethought” the “t” at the end of the word was omitted. Taking the indictment as a whole, there can be no question but that the leaving off of the “t” in the spelling of said word could in no possible way have misled appellant nor be fatal to the indictment.

We have given this case careful investigation and study, and in our ppinion no reversible error is pointed out.

The judgment is affirmed.

On Motion for Rehearing.

On July 6, 1914, appellant filed his motion for a rehearing upon the sole ground that this court erred in deciding that the trial judge was justified in holding that the verdict was not arrived at by lot. This motion was submitted October 7, 1914. On October 20th he filed what he terms a supplemental motion for new trial. In that he urges the same ground as in his original motion, and, in addition, that the trial court erred in not submitting manslaughter. To sustain his contention in his original motion he copied extracts from -but two of the seven jurors who testified before the trial judge as to how the verdict was reached. We quote what he there says these two jurors testified:

He says W. R. Mays swore:

“After we all agreed ‘guilty,’ then we had several ballots; each man put down a number of years and divided by 12 for the purpose of arriving at a verdict. Every man put his number down on a piece of paper, add that up and then divided by 12. We had agreed to ■abide by whatever result that figured and if it had figured out 99 years, then we would have been compelled to abide by it. I abided by the result after we divided by 12 because I had already agreed to be bound by it — that was the agreement. I abided by the result after we divided by 12 because I had already agreed to loe bound by it — that was the .agreement.”

In his supplemental motion he now quotes this in addition to what he says said juror swore:

“I was for a lower term than 30 years. * * * The reason I did agree to- a 30-year verdict myself was Because I felt like I had agreed beforehand that I would abide ’by it. I would not have abided by a 30-year verdict if I had not agreed to.it before, and felt myself morally bound; the only reason I returned a verdict of 30 years was because I bad agreed to abide by the result when we divided by 12.”

The other juror whom he quoted in his original motion was Huffman, whom he says swore:

“It was agreed, before we balloted on that, that each put down what he thought defendant ought to receive and divide by 12 and knock oft' the odd years either for or against and that would be our verdict and that would be the verdict of the jury.”

In his supplemental motion, in addition he quotes what he says the Juror Ritchie swore:

“It was already agreed before we divided by 12 that we would abide by the result whatever that might be, plus or less the odd years as the case might be; if it came to 32 years and 6 months, we agreed to give him the benefit of the months. I do not mind stating that I voted for 25 years the first and the last time. The reason that I came back to 30 years was, I had agreed to abide by the result after we divided by 12. * * * If it had been 50, I would agree to it after dividing by 12 because I had already agreed to do so.”

The statement of facts in his bill of exceptions on this subject is 25 typewritten pages Of course, he did not undertake to copy all either of these jurors swore, nor any that the others swore. Before deciding this question in the original opinion we read and studied the whole of this evidence carefully. We have again done so. The testimony of the seven jurors is more or less contradictory. The testimony of each of them is somewhat contradictory. In other words, some of the jurors contradict themselves in their, own testimony. This statement of facts in the bill does not show what , was drawn out by direct, nor what by cross, examination. It is evident, however, from reading it that part was drawn out on direct and part on cross examination. The trial judge heard all this and the testimony of each of the seven jurors, saw their' manner of testifying, the questions that were put to them on direct and cross examination, and the whole thing, and he was much more competent to arrive at the truth of the •matter than this court can be from the statement of facts. He also doubtless knew each of these jurors personally and could determine the weight to be given to his testimony and his credibility. This court cannot do that. There could be called perhaps enough of the testimony of these jurors, if taken alone and believed by the judge, in favor of appellant, to have justified him in holding that the verdict was reached by lot. On the contrary, there is ample evidence and a preponderance of it which clearly justified him to hold, as he did, that the verdict was not reached by lot. Upon the whole, it was a question of fact to be decided by the trial judge from all the testimony — not two or three of the jurors, but all seven of them.

In order to show that each of the' three jurors, whom appellant has quoted in his motions, contradicted themselves, we here copy extracts from the testimony of each. W. R. Mays further testified:

“After we all agreed ‘guilty,’ then we had several ballots arid they ranged from 5 to 99 years, something like that. After we had taken several ballots and could not get together, we had some sort of conversation in there, and after that conversation each man put down a number of years on a piece'of paper and that was divided by 12. We put down our numbers of years and divided by 12 for the purpose of arriving at a verdict. After we put it down and divided it by 12 we reached some 30-odd years; that received the approval of the jurors. * * * We had agreed not to bring in any odd years, that is, unless, it suited them. After we divided it up we put it to 30 years, and then we all agreed to be bound by the 30 years.” „ 4

Said Juror Huffman from whom appellant quoted, as shown above, further testified:

“The way we reached the final verdict, we saw that we differed all the way from 5 to 99 years, so we all wanted to make some agreement on it, and it showed all of them were honest that they did want to come to an agreement, so the foreman, Mr. Cartwright, proposed that we all vote our sentiments and then we would add it all up and divide by 12 and that would give us an average. * * * ”

He then further says that the result of the division was 32 years and 6 months, and they agreed to knock the odd years off and make it 30 years even, and that they all then agreed to 30 years. He further swore:

“If that had not satisfied me I was not legally nor morally bound to abide by the verdict; nobody agreed to be bound by it, only that if it figured out anywhere in the bounds of reason; the idea was that if it figured out so as to suit the jury then they would agree on it, and if any man had said, T won’t agree to that verdict,’ I would not have told him that he had promised to do so. It would have been his own honest conviction. It would have been his privilege to have said, ‘Well, that is too much,’ or, ‘That is too little.’ * * * ”

Further he said:

“We were just getting the average to see if that was satisfactory. After we knocked off the two years and came down to 30, then the question was, ‘Is this satisfactory to all the jurors?’ and they all said, ‘Yes.’ And then we all taken a rising vote and then we signed the verdict. In dividing by 12 we were trying to get at about an average, and we did make the proposition that there would be no odd years, that is, we would give nearest to the 5, and they all agreed to do that. * * * After we knockedi off the odd years, I was not bound by that verdict either morally or legally unless 1 had wanted to agree to it; we were just trying to arrive at a conclusion to see if we couid possibly get together. * * • In accordance with our previous discussion of the manner in which we would reach our verdict, I did not feel that whenever we balloted that way and divided by 12 that I ought to be bound by the result in accordance with our previous conversation about that, nothing more than just to try to come to a conclusion, to see how we all stood. * * * I had not made any positive agreement if that had not suited me; we voted afterwards.”

The other juror he quoted from was Mr. Ritchie. In addition to what he quoted, Ritchie further testified: That after they had made the division and it amounted to 32 years and some months, the Juror Helm-camp made a motion to fix the term at 30 years, and that motion was put and carried, every man voting for it. Then the foreman said if any one liad anything else to say, let him rise and say it.

“When the motion was made, when we all agreed on that, "why,, he said that all in favor of it to stand up, and we all rose, and if there was any one to say anything against it, either for or against it, they had a right to say that they was in favor of it, if they was not, stand up. I did not have any agreement that I was going to be bound by that result, not a bit at all, was not bound at all, and no one was bound. They had a perfect right to do either way they liked. There was no motion at all that we would be bound by anything. * * a- Neither I nor anybody else was bound by the average; each man had a right to object to it if he wanted to. When we divided by 12, that was done in order to get the'average of the 12 men, to see how we all stood jointly. Under the conversation and agreement we ail had I had a right to object to that 30 years. You ask me if I was morally, legally, or any other way bound, under my view, to abide by the agreement or average that we reached unless I wanted to, and I answer: Not unless 1 wanted to. You ask me: What was the general understanding when they divided by 12 and got the average as to whether or not any man had the right to object or not agree to it if he did not want to? And I answer: He had a right to kick out if he wanted to kick out, to my understanding; that was my understanding. When it averaged up 30 years 1 decided, that being about the average, that X would go up 5- years in order to arrive at a verdict. The way I understood, I still had the right to say ‘No, gentlemen, I won’t go by my 25 years.’ That is the way I understood, I had the right to do that if I wanted to. But in order to arrive at a verdict X finally agreed to the 30 years. .It was my understanding that when they called for the rising vote to see whether or not 30 years suited every man on the jury, I could have kept my seat and no man had a right to object; I could have done that conscientiously.”

This juror had all the time before been for fixing the penalty at 25 years.

So that it can be seen from even these three jurors the court was clearly justified in holding that the verdict was not reached by lot. But that is not all the testimony. We cull some of the testimony from the others, which clearly supports the court’s finding.

Mr. I-Ielmcamp testified substantially as did Mr. Huffman, that, after each man had put down his number of years and they added it all up and divided by 12, it amounted to 32 years and some months. He says he made this motion:

“ ‘I move that we agree to give him 30 years,’ and I believe, to the best of my recollection, everybody agreed to that, I know we did, for we all shook hands over it. We agreed to give him 30 years and then knock off the 2 years and 6 months. By reason of the conversation we had had just prior to the time we divided by 12, no man on the jury was morally or legally bound to stand by that result — I do not think there was any agreement to that effect. I could not have held it against any of them by reason of any agreement they made. I was not morally or legally bound to stand by it if it did not suit me; I had made no agreement; I had not made any agreement to be bound by that result. * * " We divided by 12 to get an average of what it would be and different fellows says, ‘I won’t agree to that,’ and I made the motion we just give him 30 years and knock off the odd months and years, and we all agreed to it.”

Mr. Burns testified:

“We finally agreed to vote our own sentiments, what we thought the defendant ought to have; that is to say, that each man would set down what he thought the defendant ought to have. * * * And then we would divide that by 12. * * * Before we added this up, 1 really do not know that it was agreed by and between the jurors for us to abide by the result of the quotient as the verdict. * * I do not think that we agreed beforehand that that would be the manner in which we would ascertain the verdict, but it was after that that was added up. * * * I do not remember that we agreed that inasmuch as we were so far divided we would do that and would all abide by the result of it. I do not know. I would not say for certain. If it had not satisfied me I would not have abided by it. I do not know of any agreement to abide by the result of adding it up and dividing by 12, only until after it was added up.”

The result of this addition and division was 32 years and some months. This Juror Burns further said:

“Then we all agreed-to give him 30 years; that was the verdict of the jury. If the 32 years and 6 months or any other amount had not satisfied me, I would not have been bound by it, and I made no such agreement.”

Mr. J. O. Cartwright, the foreman of the jury, testified to substantially the same as Mr. I-Ielmcamp. Among other things, in speaking of the agreement and result of the division, he said:

“Whatever it figured out, and if it did not suit a juryman he had the right to kick. You ask me: t But was the agreement before you voted on ‘it that the man should have a right to so agree beforehand that that should be your verdict when you did that? And I answer: Agreed beforehand that he should have a right if this did not suit his — was not his ideas or his views of the matter, he could say so and it was not a verdict at all. You ask me if that was before we divided by 12, and I answer:' Yes, we had an agreement that after we divided it by 12, if it was not satisfactory with any juryman or juror, he had a right to kick and say so, and we would take other steps then and see what we could do. It was not to become a verdict at all unless it was agreeable with every juryman, was my understanding. I made the proposition, and others did, too; I made the proposition, and others co-operated with me, trying to get ,at about the average mind of the jury. That was it; we tried to get on an average; that is the way we tried it. I did not myself feel morally or legally bound after we divided it by 12 if it had not suited me.”

The other juror who testified was Lee Gib-boDs. He swore:

“You ask me: And if I understood you to say awhile ago that you agreed that you would divide it by 12 and that would be the verdict of the jury; and interrupting, I answer: Why, we was not bound. I was not bound to agree by that, if it had not suited me I would not have agreed to it. * * * I was for 50 years; I agreed to 30 years because I felt it was -within the bounds of reason, not that I ought to be bound, but because it was within the bounds of reason, the verdict was in the bounds of reason ; that is what I mean. If it had not been within the bounds of reason, I felt under no obligation whatever and I would not have taken it. * * * When you added .up the 12 numbers and divided it by 12 it was my understanding that that was to get at the average verdict of the entire number of men; that was my idea at least, and if that was in the bounds of reason in my judgment I would vote for it, and if it was not I would not vote for it. * * * We were taking that vo.te to see what the general average was.. That was my understanding, at least, and then to see whether I would be bound by it afterwards or not.”

So that, taking all the testimony of all the jurors on the subject, we are of the opinion that the trial judge was not only justified in holding, as he did, that the verdict was not arrived at by lot under the authorities, but that the testimony as a whole required him to so hold.

We have again carefully considered the testimony, as shown by the statement of facts on the trial of the cause, and are fully satisfied that no charge on manslaughter should have been given; that the evidence does not raise any such question. Self-defense was suggested and fully submittéd. Appellant did not testify. So that we can have no intimation from his testimony of any fact or circumstance that would suggest manslaughter. As held by this court in Davis v. State, 155 S. W. 548:

“It may be laid down as an uncontroverted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.”

Neither of these, without the other, is sufficient to raise manslaughter. And the passion must be caused by what deceased does or says. The statute on the subject is just as clear to this effect as can be and needs the construction of no court. The statute says <P. O. art. 1128) -“manslaughter” is voluntary homicide committed under the immediate influence of sudden passion, arising from an adequate cause. And, defining “under the influence of sudden passion” (article 1129) says, it means: (1) That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. (2) The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from some other provocation, or provocation given by some other person than the party killed. And then (3) whatever the passion is it must be an emotion of the. mind rendering it incapable of cool reflection.

By “adequate cause” (article 1130) is meant such as would commonly produce a degree of such passion or emotion in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Article 1131 expressly states what are not adequate causes, and the next article expressly states what are. Article 1137 specifically says, in order to reduce a voluntary homicide to manslaughter, it is necessary, not only that adequate cause existed to produce the state of mind referred to, but also that such state of mind did actually exist at the time of the homicide.

The testimony in this case in no way shows, or tends to show, that the deceased, by word or act, at the time appellant killed him, or at any other time, said or did anything to appellant to produce adequate cause. That appellant at the time, and for a long time prior thereto, was exceedingly hostile towards deceased and repeatedly threatened to kill him and intended to kill him and was unquestionably mad at him without cause, there can be no doubt from the testimony. Deceased is shown to have had no ill will or animosity towards appellant, and for months and weeks avoided coming in contact with him, because he feared appellant would kill him if he had the slightest pretext or opportunity. On the day he did kill him, he sought in every way to avoid coming in contact with him, retreating from him when he saw him approaching, quitting his business, went out of a store, and at the invitation of a friend went up into a doctor’s office in the second story of the building to avoid being killed by appellant, and sent a runner to procure an officer to prevent appellant from killing him, and after waiting some time, and doubtless concluding that the appellant ■ had left the store wherein he had followed him, started back into it, not knowing that the appellant was therein, for the purpose of transacting his business with the merchant — buying some article. Immediately when he appeared before the glass door through which appellant could see him but from his position deceased could not see appellant, he started in the door, and appellant immediately wént to him and attempted to shoot and kill him and did shoot at him; but the deceased, in attempting to protect himself and to keep from being killed by appellant, grappled with him and struggled with him for some distance until in' some way he lost his foothold and fell, when appellant immediately .shot and killed him. All that deceased did at the time was to try to protect himself and keep appellant from shooting and killing him. McKinney v. State, 8 Tex. App. 645; Johnson v. State, 167 S. W. 736, and cases therein cited and reviewed; Wilson v. State, 160 S. W. 85, and cases therein cited and reviewed; Kelly v. State, 151 S. W. 309; Treadway v. State, 144 S. W. 655, and cases cited and reviewed; Johnson v. State, 149 S. W. 165. In the opinions in these cases just above cited many of the older decisions of this court are cited and discussed. We deem it unnecessary to collate all those and the many others to the same effect. We said in Johnson v. State, supra:

“In Treadway v. State, 144 S. W. 655, and Kelly v. State, 151 S. W. 309, supra, we have recently had occasion to review the decisions of this state on this question, and It has always been held that if there be no legal ‘adequate cause’ to produce a state of mind, such as anger, rage, sudden resentment, ov terror, even if such state of mind does exist, the offense is not manslaughter but murder in the second degree.”

The motion is overruled.


text:
    MILLER v. STATE.
    (No. 3279.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    1. Jury (§ 70)—Special Venire—Necessity.
    Where an indictment contained two counts charging robbery and one charging theft from the person, and the county attorney dismissed the counts charging robbery after defendant requested a special venire, it was not error for the court to refuse to summon a special venire.
    [Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 310-330, 340, 350; Dec. Dig. § 70.]
    2. Criminal Law (§ 1091)—Appeal—Bill of Exceptions—Sufficiency.
    A bill of exceptions, showing that defendant objected to the court excusing jurors and instructing the sheriff to summon others, but not showing that the court acted improperly in excusing the jurors, presents no error.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2S03. 2815, 2816, 2818-, 2819, 2S23, 2824, 2828-2S33, 2843, 2931-2933, 2943; Dec. Dig. <§ 1091.]
    3. Criminal Law (§ 603)—Continuance— Absence of Witness—Diligence.
    Where defendant was indicted February 23d and her case called for trial March 28th, an application for continuance on account of the absence of her husband, which gave no reason why his attendance could not be secured, and which showed no diligence to have him summoned, was properly denied.
    [Ed. Note.—Foil other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    4. Criminal Law (§ 1091) — Appeal — Bill of Exceptions—Sufficiency.
    A bill of exceptions, which states that for purposes of impeachment a witness testified that he had frequently arrested the defendant on various charges, but which does not negative the fact that the charges were for felonies or cases involving moral turpitude, shows no error.
    [Ed. Note.—For other cases, see| Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    5. Criminal Law (§ 1092)—Appeal—Bills of Exception—Approval.
    Bills of exception in a criminal case should be presented to the judge who tried the case for his approval, or proven by bystanders, and bills approved by another district judge are not properly verified.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2S61, 2919; Dec. Dig. § 1092.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Bessie Miller, alias Bessie Saunders, was convicted of theft from the person, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. 6en., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of theft from the person, and her punishment assessed at three years’ confinement in the state penitentiary.

The indictment contained three counts, charging both theft from the person and robbery. As two counts in the indictment charged robbery, appellant asked that a special venire be ordered to try her. The county attorney dismissed the counts charging robbery, and she was placed on trial only on the count charging theft from the person. Under such circumstances there was no error in the court refusing to summon a special venire from which to select a jury.

In another bill it is shown that appellant objected to the court excusing jurors and instructing the sheriff to summon others. As it is not attempted to be shown by the bill that the -court acted improperly in excusing the jurors, the bill presents no error.

There was no error in overruling the application for a continuance. - Appellant was indicted February 23d, and her case was not called for trial until the 28th day of March. The application to continue was on account of the" absence of the husband, whom she alleges resided in Ft. Worth, and no reason is stated why his attendance could not be secured, if she really desired his attendance. At least diligence had not been used to have him summoned.

The bill of exceptions in' regard to the testimony of the witness Clark does not contain sufficient allegations to enable us to' properly review it. It is true it recites that Mr. Clark testified that he had frequently arrested appellant on various charges prior to the arrest in this case. ^ If the defendant testified on the trial, and‘she had been arrested on charges of felony or eases involving moral turpitude, such testimony was properly admitted as affecting her credit as a witness. The bill does not negative the fact that the charges on which she had prior thereto been arrested were cases of the grade of felony, or involved issues showing moral turpitude.

These are the bills in the record, and they really are not verified properly. The case was tried before I-Ion. Marvin Brown, district judge, and the bills are approved by Hon. R. H. Buck, district judge. The bills should have been presented to the judge who tried the case for his approval, or proven up by bystanders.

The judgment is affirmed.


text:
    JOHNSON v. STATE.
    (No. 3219.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Abe Johnson was convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of pursuing- the occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

The record contains no bills of exception to the introduction or exclusion of evidence; no statement of facts accompanies the record ; and under such circumstances there is no ground in the motion for new trial we can review.

The judgment is affirmed.


text:
    ROBISON v. STATE.
    (No. 3224.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Dock Robison was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was con-is neither a statement of facts nor bills of exceptions in the record. In the absence of these, there is no question which we can review.

The judgment is affirmed.


author: DAYIDSON, J.

text:
    Ex parte LONG.
    (No. 3302.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Ex parte application by Ben Long for admission to bail. Prom an order denying him admission to bail, he appeals.
    Reversed and bail granted.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Under habeas corpus trial relator was refused bail. The justice of ths peace had previously admitted him to bond in the sum of $3,000, which the record shows he was unable to give. The district judge, upon habeas corpus trial, reached the conclusion that the case was nonbailable. We do not t gree with that conclusion. It is unnecessary to discuss the facts, and, in obedience to our general rule, we do not discuss the facts. Justice of the peace granted bail in the sum of $3,000, which relator could not give. The case is bailable. The judgment is reversed, and bail is fixed in the sum of $3,000. Upon the giving of this bond, to be approved by the sheriff of Harris county relator will be discharged from custody under the terms of the bond.

The judgment is reversed and bail granted.


text:
    Ex parte BARNETT.
    (No. 3285.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.)
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Application by R. P. Barnett for bail. Judgment refusing bail, and relator appeals.
    Reversed, and bail granted.
    Sam D. Stinson and Crosby, Hamilton & Harrell, all of Greenville, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Relator was refused bail under a charge of homicide. An inspection of the record and facts, which are voluminous, leads us to the conclusion that the trial judge was in error in refusing bail. The judgment will be reversed, and bail granted in the sum of $7,500. Upon the giving of bond under the terms of the law, to be approved by the sheriff of Hunt county, relator will be discharged from custody.

Tlie judgment is reversed, and bail granted.


author: CONNER, C. J.

text:
    PORTER et al. v. BROOKS et al.
    (No. 7999.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Advebse Possession (§ 79) — 'Tax Deed— SUFFICIENCY OF DESCBIPTION — LIMITATIONS.
    A tax deed from the calls of which the survey could not be closed or the land be otherwise identified, there being no call for any natural or artificial object, or even any testimony from which the land could be identified by the field notes, was insufficient to support defendants’ claim of title under the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.]
    2. Advebse Possession (§ 13) — Pbescbif-tive Titee — Findings—Sufficiency.
    Findings, in suits in trespass to try title, wherein defendants claimed under a tax deed, were insufficient to authorize a judgment for defendants on their plea of title under the five-year statute of limitations, where they showed that the possession under which they claimed was in subordination to the true owner’s title from January, 1904, to January 5, 1906, that cultivation of the land in the latter year was not shown, and that there was no use or occupancy of the land in the year 1909; it not appearing therefrom that there was a continuous adverse possession for the full five years.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 65, 67-76; Dec. Dig. § 13.]
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Action by J. N. Porter and others against E. H. Brooks and others. From judgment
    for defendants, plaintiffs appeal.
    Reversed and rendered.
    See, also, 159 S. W. 192.
    Eugene De Bogory and J. W. Moffett, both of Abilene, for appellants. Otis Bowyer, of Baird, and Walter L. Morris, of Albany, for appellees.

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

   CONNER, C. J.

Appellants Porter and Jones, on May 21, and on November 13, 1912, respectively, severally instituted suits in trespass to try title to recover parts of a tract of about 450 acres of land out of the William G. Anderson survey in Callahan county. The suits were consolidated, and the trial court has filed conclusions of fact, which we adopt, and from which it appears that Porter and Jones held title to the lands claimed by them under mesne conveyances from the sovereignty of the soil. The court, however, further found that E. H. Brooks, under whom the defendants claimed, had purchased the land in controversy at a tax sale on January 5, 1904, and that the tax collector’s deed therefor had been duly recorded, and that the defendants thereunder had acquired the ^superior title under the five-year statute of limitation.

The controlling questions presented on this appeal from the judgment in appellees’ favor are: First, whether the tax deed under which the defendants claim is sufficient in its descriptive calls to constitute a basis for the statute of limitations; and, second, if so, whether the facts found by the court support the plea of the statute.

First. Is the deed under which defendants claim sufficient to support the statute of limitation? As found by the court the following is a description of the land given in the tax deed under which appellees claim:

“Out of the William G. Anderson survey of land, beginning at the S. E. corner of D. N. Patterson survey; thence N. to the S. E. corner John Ferguson survey; thence W. to S. W. corner of Ferguson’s 80 acres tract; thence N. to S. E. corner Fergusons 15 acre tract, thence W. to S. W. corner said 15 acre tract; thence N. to N. W. corner said 15 acres tract; thence W. to S. W. corner of the D. W. Lin-ville 80 acre tract; thence N. to N. W. corner said 80 acre tract; thence W. to E. A. Hailey’s 125 acre tract; thence S. to the Hail-ey’s S. E. corner; thence E. to the D. W. Lin-ville 100 acre tract; thence N. to the N. W. corner of said 100 acre tract; thence E. to the N. E. corner of said tract; thence S. to the S. E. corner; thence E. to the N. E. corner of the W. J. Copeland tract of land; thence S. to S. E. comer of Patterson survey to the place of beginning containing 200 acres of land, more or less.”

From the calls of the deed as stated in the court’s conclusions, which we must accept as controlling, we have been unable to make the survey close, or otherwise identify the land in question. It will be noted that distances are not given, nor is there a call for any natural or artificial object, nor if we adopt the principle of “Id eertum est quod certum reddi potest” and go into the field of testimony, as the court did, to locate the several tracts of land called for in the tax deed, can it be said that the land in controversy can be identified by the field notes of the deed under which the defendants claim, for the court’s findings leave the location of some of the surveys called for altogether indefinite, as will be seen by his fourteenth finding of fact, reading as follows :

“XIV. That the D. N.' Patterson survey, the John Ferguson survey, the D. W. Linville survey, the D. W. Linville 100-acre tract and W. J. Copeland tract, called for in the said sheriff’s deed to Brooks, are not original surveys themselves, but are merely tracts of land known by such names, which have been cut out of the William G. Anderson survey in years prior to the execution of the sheriff’s deed, and several of same being too indefinite in description to locate, without depending upon the various deeds filed for record in Callahan county, Tex., and the court excluded the evidence of the surveyor locating the Copeland tract and the Lin-ville 100-acre tract, as the calls were too indefinite ; the said surveyor depending upon what was told him by neighbors.”

While it is now established that a tax deed may form the basis for limitation under our statute, yet such deed, as in case of other deeds, must be sufficiently certain in its description of the land as that it may be identified on the ground; otherwise there is no proper predicate for the five-year statute of limitation. In the case of Giddings et al. v. Day et al., 84 Tex. 605, 19 S. W. 682, it is held that if the land intended to be conveyed be so inaccurately described that it appears upon an inspection of the deed that the identity of the land is altogether uncertain and cannot be determined, the court should pronounce it void. In the case of Hermann v. Likens, 90 Tex. 449, 39 S. W. 282, our Supreme Court says, in substance, that in cases of the execution of a statutory power when the owner of the land intends nothing and the law through its officers acts in hostility to him, we cannot aid an inherently insufficient description by extrinsic evidence tending to prove what the officer probably inteMed to sell. In these sales, says the court, the policy of the law requires not that there should exist a possible means of showing at some future time what is otherwise indefinite and uncertain, but that at the time of the sale it should be within the power of all who are by notice invited to become debtors to know what is offered. See, also, Ammons v. Dwyer, 78 Tex. 639, 15 S. W. 1049; Brokel v. McKechnie, 69 Tex. 32, 61 S. W.. 623; Waters v. Spofford, 58 Tex. 115; Ozee et ux. v. City of Henrietta, 90 Tex. 334, 38 S. W. 768. We conclude that the. tax deed under which ap-pellees claimed was insufficient to afford a basis for the limitation asserted by them, and that the court erred in holding otherwise.

Second. But waiving for the moment the insufficiency of the tax deed, can it be said that the court’s findings support appellees in their plea of title under the five-year statute of limitation? The statute (article 5674, Rev. Civ: St. 1911) provides, so far as we need to quote, that:

“Every suit to be instituted to recover real estate as against any person having peaceable and adverse possession thereof, cultivating, using or enjoying the same and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have accrued, and not afterward.”

The court’s findings show that the tax deed was duly recorded in the deed records of Callahan county on the 24th day of February, 1904; and that as before stated appellants’ suits were filed in the latter part of the year 1912. The findings further show that shortly. after receiving the tax collector’s deed E. H. Brooks fenced about 20 acres of the land in controversy, and grubbed and put into cultivation about 12 acres within the inclosure; that Brooks rented the cultivated land to tenants, who were in actual possession of the same for the years 1904, 1905, 1907, and 1908, but that it was not cultivated or rented in 1909, nor, so far as the findings show, in 1906. The land, however, was known as the H. H. Brooks land. The findings also show that Brooks paid taxes on 200 acres of land out of the William G. Anderson survey for the years 1904 to 1910, inclusive; that being all of the land rendered against Brooks by the assessor for those years. For the years 1911 to 1913, inclusive, however, he paid taxes on 403 acres of land, it having been made to appear from an actual survey made in behalf of appellees that the tax deed called for about 450 acres instead of 200 acres, as was evidently thought at the time of its execution. The findings further show that no house was ever built on the land in controversy, and that no one at any time actually .lived thereon. The peaceable adverse possession necessary for the acquisition of .title under the five-year statute noted must be actual, continuous, visible, notorious, distinct, and hostile, and we think the findings fall short of showing any such possession on the part of appellees. See Raley v. Sullivan & Co., 159 S. W. 99. Under the ruling in Marlin v. Green, 34 Tex. Civ. App. 421, 78 S. W. 704, 79 S. W. 40, and Davis v. Hurst (Sup.) 14 S. W. 610, Brooks’ possession from the record of the tax deed in January, 1904, to January 5, 1906, was in subordination to the title of the true owner, and therefore adverse possession did not begin until the latter date, but if it were otherwise, and it should be held that limitation began from the inception of Brooks’ possession, there was a break therein for the year 1906; it not appearing that during that year any part of the land in controversy was cultivated or used in any manner. And again for the year 1909 there was no use or occupancy of the land as. appears from the court’s findings. So that at no time can it be said that the adverse possession of Brooks was continuously adverse within the meaning of the statute for the full five years as thereby made necessary. See Wilson v. Nugent (Civ. App.) 91 S. W. 241; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265; Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 130.

It follows that the judgment of the court on the issue of title must be reversed and here rendered for appellants. The court, however, further finds that during the period of the appellees’ occupancy the defendant .Brooks in good faith placed upon the land in controversy improvements of the value of $175 in excess of the value of the rents, and that the appellee 1-Iall placed thereon like improvements of the value of $125. These findings are not questioned, and the judgment will therefore be reversed and here rendered for appellants for the title and possession of the lands described in the plaintiffs petition, but the appellees named will be severally allowed the value of the improvements as stated.

Judgment accordingly.

SPEER, J., not sitting.