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

text:
    WATSON v. STATE.
    (No. 4450.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Criminal Daw &wkey;112(6) — Venue—Homicide.
    By direct provision of statute, venue may be either in county where shooting occurs, or where deceased person dies.
    2. Criminal Law <&wkey;>594(l) — Continuance— Absence of Witness.
    Denial of continuance for absence of witness to secure whose testimony state proposed that defendant could take his deposition, etc., held not erroneous.
    3. Criminal Daw &wkey;126(2) — Venue—Denial of Motion.
    In prosecution of bank president for murder of state commissioner of hanking, denial of motion for change of venue on ground of impossibility of having fair trial in county, held not to require reversal, in view of facts stated in judge’s qualification of defendant’s hill.
    4. Criminal Law <&wkey;448(2) — Evidence — Opinion.
    In prosecution of hank president for having murdered state commissioner of hanking, testimony of commissioner’s bank examiner, present at homicide, that bank at time was insolvent, held not inadmissible as conclusion or opinion.
    5. Homicide <&wkey;156(l), 166(1) — Malice and Motive — Evidence.
    In prosecution of bank president for having murdered state commissioner of banking, closing of bank for insolvency and improper management having brought about killing, evidence as to bank’s insolvent condition, its management, etc., held admissible to show malice and motive.
    6. Witnesses <&wkey;414(2) — Support of Testimony.
    Where testimony of witness for state was attacked by laying predicate to contradict her and to show denial on her part of any knowledge of crime, state was authorized to sustain her by showing statements by her corroborative of her testimony.
    7. Criminal Law <&wkey;067(l) — Trial Admissions.
    Where defendant offered evidence of his previous good character for honesty and truthfulness, and, after witnesses had been introduced along that line, state admitted his reputation was as claimed, the practice, to save examining a great number of witnesses, was proper.
    8. Witnesses <&wkey;361(l) — Sustaining- Testimony.
    Where defendant declined to admit a state’s witness was worthy of credit, but only would admit his good reputation for veracity, state was entitled to show by testimony that from his reputation the witness was worthy of credit.
    9. Criminal Law <&wkey;438 — Evidence.
    In prosecution of bank president for having murdered state commissioner of banking, photographs of interior of bank, from which defendant shot commissioner at door, showing location of parts of bank, especially with reference to desk occupied by defendant, were admissible.
    10. Criminal Law <&wkey;366(3) — Evidence—Res Gestas.
    In prosecution of bank president for having murdered state commissioner of banking, statements by commissioner immediately after being shot, and also later, made to physicians called to attend him, were admissible as res gestte.
    11. Homicide <&wkey;200 — Dying Declarations.
    In prosecution of bank president for having murdered state commissioner of banking, statements by commissioner immediately after he was shot, also later, made to physicians called to attend him, held admissible as dying declarations.
    12. Criminal Law <&wkey;-982 — Evidence—Plea for Suspended Sentence.
    In prosecution of bank president for having murdered state commissioner of banking, as bearing on defendant’s plea for suspended sentence, testimony of defendant, elicited by cross-examination as to his indictment in 19 cases charging him with forgery in another county, etc., held admissible.
    13. Criminal Law <&wkey;448(3) — Evidence — Opinion.
    In prosecution of bank president for murder of state commissioner of banking, testimony of commissioner’s bank examiner that he had not stated that neither he nor commissioner was armed, but that defendant in his opinion believed commissioner to be armed, hold inadmissible.
    14. Criminal Law <&wkey;659 — Trial—Conduct of Spectator.
    In prosecution for murder, demeanor of and remark by widow of deceased person to leading counsel for defendant while latter was closing his argument held not to require reversal, having been provoked by counsel himself.
    15. Criminal Law &wkey;>404(4) — Evidence — •Coat of Deceased.
    In prosecution for murder-, coat supposed to have been worn by deceased when shot was properly exhibited to jury as bearing on location of parties, wounds, etc.; there being little, if any, blood on it.
    16. Criminal Law <&wkey;763, 764(1) — Instruction on Weight of Evidence.
    In prosecution of bank president for murder of state commissioner of banking, instruction that under facts commissioner had right under law to close 'bank and take charge of its affairs, held not charge on weight of evidence.
    17. Homicide <&wkey;300(7) — Instruction—Self-Defense.
    In prosecution of bank president for murder of state commissioner of banking, who had just closed his bank, instruction on self-defense held sufficiently to apply law to facts.
    Appeal from District Court, McLennan County; Richard. I. Munroe, Judge.

      T. E. Watson was convicted of murder, and he appeals.
    Affirmed.
    Pat M. Neff, of Waco, R. M. Edwards, of Fairfield, J. Ross Bell, of Teague, L. T. Dasli-iell, of -Centerville, and Jed C. Adams, of Dallas, for appellant. John B. McNamara, Co. Atty., of Waco, Cullen P. Thomas, of Dallas, Williams & Williams, of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and allotted a long term of years in the penitentiary.

The party alleged to be killed was John S. Patterson. The facts show that Mr. Patterson was commissioner of banking and insurance of the state of Texas, and as such had charge of enforcing the law with reference to banking in the state. Appellant and his two sons, J. E. and W. R. Watson, were bankers in Freestone county, in the town of Teague, and had been for several years. The bank had been in serious trouble from a financial standpoint and its management prior to the time Patterson became commissioner of banking and insurance. Appellant and his two sons, who were respectively president, vice president, and cashier, controlled and managed the bank and its affairs. There seems from the testimony to have been but little, if any, conference between these three parties and the board of directors of the bank. The bank had been in trouble with Mr. Collier, Mr. Patterson’s predecessor.

The record is very voluminous on legal questions as well as evidence, covering 1,600 or 1,700 pages of typewritten matter. This' includes the original bill of exceptions with reference to change of venue. There is a great.deal of testimony in the record showing the trouble between the banking commissioner and appellant and his sons with reference to their management of the bank and its affairs. This runs through several years. Several bank examiners had gone over the affairs of the bank and found it practically in an insolvent condition as far back as 1914, if not in 1913. These bank examiners had talked at various times with appellant about the condition of the bank and sought in various ways to assist the officers in keeping the bank in a solvent condition. The bank seems to have been run in violation of the banking laws of the state in sundry ways. These matters are all set out in the record and unnecessary to be repeated. Appellant was notified of these conditions by these examiners, and by, it seems, Mr. Collier as well as Mr. Patterson, and was warned that .the bank must rectify its affairs or be closed. Promises were made by appellant to conform to the law, but were not carried out. Finally, in 1916, conferences were held between one or more of the bank examiners and appellant and one or both of his sons, in regard to the condition of the bank and its failure to comply with the law in many respects, and promises were made by appellant that these matters would be rectified and the bank put upon a proper basis. The insolvent condition was fully and freely discussed; also that its reserve was far below that required by the law, and that appellant and sons as officers of the bank had borrowed for themselves from the bank far beyond what the law authorized, and this without an order or the consent of the directors. Many of these matters are evidenced in writing and correspondence with appellant. Some of these warnings given appellant as president were in writing and some in conversations. About May or June, 1916, the affairs of the bank were again examined by the bank examiner and found to be insolvent, and the bank examiner had a conversation with appellant at Hillsboro, not wishing to go to Teague where the bank was in order to avoid calling attention to its condition and thereby injuring the bank. Their purpose was as stated to assist appellant in putting the bank “on its feet.” The policy of the commissioner of banking and insurance was not to wreck, but to sustain all banks of the state, and to this end he rendered all assistance possible to avoid closing it. In May or June the reserve was far below what the law demanded, and i» August, at the time of the killing, instead of having the bank reserve which was supposed to be- in excess of $15,000, it only had on hand in its cash reserve less than $2,000'. When this condition was ascertained from the report of the bank examiner Mr. Patterson, with Mr. McKinnon, one of the bank examiners, went to Teague and went over the bank books and found the bank hopelessly insolvent and burdened with forged paper to approximately $60,000. All previous efforts to assist the bank had been disregarded, and the promises of appellant and his sons were not fulfilled, nor was there sought to be any compliance with the demands of the commissioner under the agreement on the part of appellant. There was also a great deal of forged paper in the bank carried as assets. These forgeries, amounted, it seems, to $60,-000, equaling the capital stock in amount. A number of these forged papers and perhaps other papers were in possession of Mc-Kinnon and Mr. Patterson at the time of the homicide. Some of them were in the grip of McKinnon, and it seems some of them in the grip carried by Mr. Patterson. On the evening of the homicide the bank matters were gone over by Patterson and McKinnon in the bank. The closing hour of the day arrived and the bank was closed for business. Appellant left the bank and went to -his residence a few blocks away. J. E. and W. R. Watson, sons of appellant, and officials of the bank, remained. The bank matters were gone over and discussed, and the cash reserve counted and found to be less than $2,000. This money was placed in the safe, locked, and the time combination turned. One of the sons alone had the combination and knew how to open the safe. Among other items of cash was $890 in currency. This was placed in the safe. A day or two afterwards when the officers took charge of the bank and placed it in the hands of a receiver this $S90 had disappeared from the safe. No one it seems had) been in the bank from the time it was closed on the evening of the homicide, so as to get in the safe, unless it was appellant or his son. This became the subject of evidence and an issue on the trial. After appellant left the bank at the closing hour in the evening, and after a conversation between the parties with reference to other matters mentioned, appellant was requested by one of his sons over the phone to come to the bank, stating that there ■was trouble. Appellant shows when he received this message, not knowing what trouble was meant, got his pistol and carried it with him to the bank. Upon entering the bank his two sons and McKinnon and Patterson were its occupants. A conversation occurred in which the different parties engaged and appellant was notified that the bank would be closed permanently, and Mr. Patterson ordered Mr. McKinnon to place a notice on the window to the *ffect that the bank was so closed. Appellant’s testimony is to the effect that he asked Patterson to defer this three days; that he could perhaps make arrangements to put in it the proper reserve and carry on the bank business. This was not agreed to by Patterson, and the evidence tends to show that he told him that he had been trying to assist them carry on the bank in its insolvent condition and assist him under promises that appellant would rectify things, that he had not done so, and it would be closed. At this ’juncture Patterson started out of the bank. The evidence is conflicting as to just the position of the parties at this time. The evidence shows that as Patterson passed out of the door appellant shot him, then turned and fired at Mc-Kinnon. McKinnon testifies after appellant fired one shot at him that one of appellant’s sons, J. E. Watson, grabbed or took the pistol from his father and fired at him two or three times as he ran out the back way: Patterson had his leather case or grip in his hand with papers in it at the time he was shot. McKinnon’s grip with other papers in it was left in the bank in his flight. After Patterson left the door of the bank was immediately closed and the three Watsons remained in there from 15 to 30 minutes. When McKinnon recovered his grip that night it had been broken open and some of the papers had disappeared. Appellant, after these transactions, left the bank, going the back way and went a different street towards his home from that he usually traveled. He was seen by a boy to throw tom papers in the weeds along the trail he was following en route to his house. These were tom up notes or checks that had been in the possession of McKinnon and taken from his grip. The boy, thinking they were candidate cards appellant had thrown in the weeds, went to get them, as he said, to prepare them as a jleek of “flinch cards.” Upon reaching the scene he found they were not candidate cards, but were torn up papers. Appellant says these papers were torn by his sons and handed to him, and in going home lie threw them away at the place designated. The testimony of the boy indicates that appellant tore them himself and threw them away. It is not considered material whether they were torn in the bank or after he left it. Upon the arrival of the stepfather of the boy at home that night the boy informed him of what he had seen, and he instructed the boy to get the papers, which he did the next morning. They fell into the hands finally of the receiver of the bank. These were some of the papers that carried evidence of forgery. Appellant claimed in his testimony that he was not aware of the fact that these notes were forgeries. To go into detail would make the statement too lengthy, and it is dismissed with the- statement that he was evidently aware of the fact of the insolvent condition of the bank and had been two or three years, and that these forged papers were used as assets of the bank. Some of them he had copied and kept in the bank among the papers of the bank as assets while the original forged notes were used as the basis of borrowing money. The shooting occurred in Freestone county. Patterson was carried, after being shot, from Teague, in Freestone county, to Waco, in McLennan county, and placed in a hospital. He died in Waco in a short time.

One of appellant’s contentions is that the jurisdiction or venue of the case was legally in Freestone, and not in McLennan, county,, and he filed his plea setting up that question. The statute provides that venue may be in either county, where the shooting occurs, or where the party dies.

Appellant filed an application for continuance which was overruled. There were four witnesses mentioned, among those, the father of appellant, a very old man, past 90 years of age. Another was called in the record Taz Watson. Two of the witnesses were present. Appellant’s father did not attend, it seems, and the record indicates that he abandoned any question as to that witness. Taz Watson was present and testified contrary to what appellant alleged in his application for continuance he could prove. The negro Green did not attend and was physically unable to attend. It seems to be an uncontroverted fact that Green was in the last stages of consumption and could not attend court. The trial lasted about six weeks. To secure tlie testimony of this ■witness, the state proposed, under the showing made of the physical incapacity of the witness, that defendant could take his depositions, and would render every aid possible in securing his testimony, and waive all formalities and let his depositions be taken. This was declined. We are of opinion that under the showing here made there is no error in this matter.

Appellant filed a motion to change the venue. This was overruled. The evidence is voluminous, covering several hundred pages. The court, approving the bill, qualified it at some length. The court certifies that the evidence was conflicting, and in his judgment there was no sufficient reason shown why appellant could not obtain a fair trial in Mc-Lennan county. Among other things, the court says that:

“There was no evidence whatever of any activity in connection with any alleged conspiracy, nor was there evidence of any dangerous combination. There was no evidence of any excitement or unusual interest in this case during the trial thereof, either on the hearing of the application for a change of venue or the trial of the case, which consumed something over a month. During the entire time that the court was hearing the application for change of venue, there were very few persons in and around the courtroom, except those were there under process of the court. This condition prevailed throughout the entire time of the trial, with the exception that as the trial began to draw to a close, the number of spectators grew larger, as the public did not know exactly when the trial would close and the speech making would begin. There were several orators of note, including Jed Adams and Gul-len Thomas of Dallas, and Trav Dashiel of Deon county, and also the local counsel. The argument of the case attracted quite a crowd, but this and a day or two prior to the begin-1 ning of the argument were the only times that there was any unusual crowd in the courthouse. The interest in the argument, as distinguished from the interest in the case, was what attracted this crowd. Otherwise, the attendance of spectators in the trial showed conclusively that there was no unusual condition in the sentiment of the county, with reference to the case.”

The court also qualifies tbe bill with reference to the conditions of the case surrounding the impaneling of the jury. The qualification covers quite a number of pages. Further qualifying the bill the court says:

“The court understands the law to be that an application for a change of renue is addressed, to the sound discretion of the court, who is upon the ground and is supposed to be conversant with the conditions in his county, and that his action thereon should be determined by his deepest sense of duty, and with the full approval of his conscience. The court acted upon this rule in overruling this application for a change of venue, and after patiently giving the defendant over a week to introduce testimony in support of his motion, there was not left remaining the slightest doubt in the mind of the court that an absolutely fair and impartial trial alike to both the state and defendant could be had in McLennan county. The court was and is well acquainted with nearly all, if not all, the witnesses for the defendant,- and conversant with their opportunities of knowing the condition of public sentiment in McLennan county, as well as with their interests in the case. It appeared that out of the great number of witnesses summoned by the defendant on the motion, that a very large per cent, of those used were former residents of Freestone county and acquaintances of the defendant, who were biased in his favor; and opinion evidence on the application to change the venue of a case being of such a character as is very largely controlled by the will rather than the judgment of the witness. Th^ court for this and other reasons did not attach great importance to the opinion of those particular witnesses. As to the other witnesses, some of them were men whose chief avocation was hanging around hotels and other public places and engaging every one they could in conversation upon current events, and still others with eccentric opinions, in whose judgment no one who knew them could attach any great importance. Aside from this, the court knew, as a matter of fact and from having seen the general state newspapers and from a knowledge of such things in general, that there was practically as much information gained by all of the reading public in Texas as there was by the reading portion of the citizenship of McLennan county, and that if a mere one-sided newspaper report of a current event was to disqualify the citizenship of this county from jury service and require a change of venue, then the same conditions practically would he found in every county in Texas. The court, under these conditions, deemed that the best ends of justice and right would unquestionably he met by a trial of this case in this county, and by the court exercising the greatest care to see that no improper juror or sentiment found Ms way or its way into the jury box, and that the court should be extremely liberal in standing aside jurors for cause; and acting upon this theory a great percentage of the jurors whom the court permitted to be stood aside for cause were in, fact leg-ally qualified and competent jurors under the laws of this state. * * * The matter of the change of venue of this case, as this court viewed it, remained in the discretion of the court throughout the impaneling of the jury. The court was, as above stated, after the examination of all or the witnesses, of a dear and confident opinion that a fair and impartial jury could be impaneled. The examination of the jury confirmed this opinion of the court, and had it not done so, he could and would have granted such relief as was necessary to insure a fair trial. 'Whatever conclusions or opinions might have been drawn from the evidence as to whether or not a fair jury could be impaneled in this county, it is demonstrated beyond peradventure or doubt that if confidence is to be reposed in the honesty of men, a fair and impartial jury was, in fact, secured in this case and that without any great trouble.”

Then follows a statement of the examination of the jurors who were selected and sat in the case. The above are but brief extracts from the qualification of the judge.

This hill was accepted by appellant as qualified, and it is thus before this court. As this bill is presented we are of opinion that the discretion of the judge is not shown to he sufficiently erroneous, if erroneous at all, as to require a reversal. In Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858, Judge Ramsey used this language:

“Of necessity in respect to a question of this kind much ought to be left to the discretion and sound judgment of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331. See, also, Cox v. State, 8 Tex. Cr. App. 254 [34 Am. Rep. 146]; Bohannon v. State, 14 Tex. Cr. App. 271; Martin v. State, 21 Tex. Cr. App. 1 [17 S. W. 430]; Connell v. State [45 Tex. Cr. R. 142], 75 S. W. 512; Reeves v. State [47 Tex. Cr. R. 340] 83 S. W. 803; Earles v. State [47 Tex. Cr. R. 559], 85 S. W. 1; Adams v. State [48 Tex. Cr. R. 452], 93 S. W. 116. After a careful inspection of the record, we do not believe that we could or would be justified, in view of the action of the trial court in conflicting evidence, in reversing the judgment on the failure of the court to grant a change of venue.”

This case was followed in Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52, and in Barnett v. State, 76 Tex. Cr. R. 555, 176 S. W. 580. The writer of this opinion did not agree with the decision in the Barnett Case, supra. The disagreement was not on the law, but on the facts, and their application to the law. But under the authorities, as this record is presented, we are of opinion that the court did not err in refusing to change the venue. The matter is treated as if the bill of exceptions was filed in proper time. It is a very serious question as to whether or not the bill was so filed. The transcript shows that the bill of exceptions was properly drawn and presented to and approved by the court on the last day of the term, but it shows that it was not filed until the 23d of March after the adjournment of court in the previous December. The original bill of exceptions was ordered sent up by the trial judge. On the back of this bill of exceptions it shows to have been filed in term time. This original, bill is not verified so that it can be considered, strictly and technically speaking. The clerk does not identify it as the original bill ordered sent up, but we treat those matters as rather technical and disregard them and pass on the merits of the bill.

Another bill recites that while McKinnon was testifying in behalf of the state he testified he examined the books and papers of the Banners’ & Merchants’ State Bank at Teague, Tex., in May, 1916. That is the bank in question. He was then asked what he found. Various objections were urged to this question. He answered, “At that time, I found the bank in what I considered an insolvent condition.” Objection was again urged. The state then asked, “You say that on that occasion you considered the bank insolvent, in your opinion?” Objection was urged, and he answered, “Yes, in my opinion, I found enough of the assets of the bank that I considered to be what we call bad, not collectable, doubtful.” Further answer was not given. It seems to have been cut off by objection. The central point of objection seems to have been that this was but a conclusion or opinion of the witness, and that the bank papers and books would have been the best evidence. There is quite a lengthy qualification to this bill. The court says the witness was an officer of the state department of banking and insurance, being what is known as a bank examiner under the deceased, John S. Patterson, who was commissioner of banking and insurance at the time. The qualification further states that the finding of that department, which was authorized to be made by a bank examiner, or upon his report as to the! condition of the bank, with reference to solvency, was sufficient under the law to justify the closing of the bank by that department, if such officer found said bank to be insolvent. That its solvency or insolvency is not a question of opinion, but is a question of fact, and defendant could have and did cross-examine said witness fully as to all the facts upon which he based his statement that the bank was insolvent, and brought before the jury all the facts bearing upon the correctness of the statement of the witness as to the insolvency of said bank. “It was, of course, impossible for the jury to have understood the books of the bank and all of the details with reference to the papers, or to have had all the records and papers introduced, and even that would have left the question as to the solvency of the makers of various notes and the character of the paper. In this case, as the court understood it, one of the issues was as to the right of the commissioner of banking and insurance, -under the law, to close this bank, and of the conclusions reached by that department as to the solvency of the bank and as to the good faith of the commissioner in closing the bank, which good faith had been and was being questioned by the defendant; and in addition to all of this, the defendant’s own testimony and the un-contradicted testimony of a great number of witnesses showed conclusively and without dispute, and it was an admitted fact in the case, that said bank was in fact insolvent in May, 1916, and for a long time prior thereto and continuously thereafter until it was closed by the commissioner, at which time he was killed, and it, therefore, occurs to the court that even if there was technical objection to this testimony, that it could not be harmful and hurtful to -the defendant.” This is the qualification placed on the bill by the court.

There are a number of bills of exception reserved to the testimony of McKinnon with reference to his examination of and statements concerning the bank. They are all largely to the same effect and go to the same line of examination. This record discloses, we think, without question, that the bank was insolvent. All of these matters were gone into thoroughly and fully, much of it without objection. Some of it was introduced by the state and some by the defendant, covering the history of the bank and its condition since 1913 up to the time of the closing of the bank and killing of Patterson. These matters were gone over with appellant himself both in person and by correspondence, all of which is shown in the record. All of these matters from every viewpoint show that appellant recognized the insolvent condition of the bank and all the matters practically connected with it that were brought under discussion in these conversations by the commissioners and others with defendant and his sons, as well as the correspondence that passed between appellant, as president of the bank, and Mr. Collier, Patterson’s predecessor, -and Patterson himself, as well as correspondence 'between hank examiners and appellant with reference to matters of the hank and their investigation. In one of these letters or communications from the banking department to appellant he was notified of the condition of his bank again, and his attention was called to the fact that he was violating quite a number of the statutes with reference to the business management of his bank, and was informed that some of these had rendered him liable to prosecution for felonies and incarceration in the penitentiary. We are of opinion that this record is full of testimony, some of it unquestioned and to which no objection was urged, showing the complete insolvency of the bank and the efforts of the banking commissioners and examiners to assist appellant in putting the bank on its feet and in running operation again instead of wrecking it. It is shown beyond question that the bank had a great number of forged papers, notes used in connection with its banking business, as assets. There came an issue also in this connection between appellant’s testimony and that for the state as to appellant’s knowledge of these matters. He stated that while he was president of the bank he was only nominally so, and had little to do with its affairs, and was really a figurehead in the concern. A great deal of this testimony and correspondence was introduced to meet that phase of appellant’s testimony. The state’s contention was that he was not only the president, but was actively so engaged in the business and management of it .and in borrowing and seeking to borrow money from different sources to carry on the business of the bank, and that he did in fact borrow money; that he transcribed a number of the forged notes, or made duplicates, the duplicates being kept in the bank as assets and the originals were hypothecated as collateral for borrowing money. There is also evidence from him personally, and in writing to the effect that there were papers in the bank he knew to be forgeries; that he wrote one party that he had used his name and hoped and thought that it would be all right with him. This record is so' voluminous with this character of testimony that it would be practically out of the question to try to state details. The transcript contains 600 pages of evidence. What has been said will cover a large number of bills of exception which are voluminous, and most all of them, if not all, were fully qualified by the trial judge, showing his reasons for letting in the testimony. We are of opinion that none of the bills show error. All such evidence was admissible also to show malice and motive. The bank was wrecked on account of these facts and occurrences which caused him to close its business. The closing of the bank brought about the killing by appellant. Branch’s Ann. P. O. p. 1042, for cases; Wharton, Crim. Ev. pp. 165, 1657, 1649.

There is another bill reserved to the ruling of the court permitting the state to show that the witness Miss Manahan made certain statements corroborative of her testimony on the trial. Her testimony was attacked in various ways by laying a predicate to contradict her and to show a denial on her part of any knowledge of the killing. In other words, in several ways her testimony was attacked by appellant. In view of this condition the state was authorized to sustain her in the manner shown by the bill of exceptions as well as by the introduction of evidence of her good reputation as a lady of truth and veracity, as was done.

Another bill recites that appellant offered evidence of his previous good character both for honesty and truthfulness. After several witnesses had been introduced along this line the state admitted that his reputation was such as claimed by him through his witnesses. This admission was made largely, as shown by the bill, to shorten the trial and save time in examining a great number of witnesses. Under the decisions of this state this was proper practice.

Another bill shows that McKinnon’s character as a truthful man was called in question by the defendant, especially with reference to laying a predicate for impeachment and contradicting him. The state to meet this introduced some witnesses to show the fact that McKinnon was a man of good reputation for truth and veracity. Appellant admitted finally that his reputation and standing in the respects inquired about was good, but refused to admit that it was such as would justify the jury in believing him on oath. The court qualifies this bill by stating the facts as above stated, and that he permitted the introduction of testimony as to the fact that from that reputation he was worthy of belief. So the exception really was leveled at that part of the testimony, and not at that with reference to the admission of his truthfulness and high standing in that regard. We are of opinion there is no merit in this matter. Under the decisions it seems that a party who sustains the reputation of the witness is entitled to show by testimony that from such reputation he is worthy of credit and belief. Appellant declined to admit witness was worthy of credit, but only would admit his good reputation. There was no error in this ruling. This was decided as late as Clemens v. State, 193 S. W. 1066.

There were photographs of the interior of the bank presented to the jury showing the location of certain parts of it, especially with reference to the desk occupied in the bank by appellant as president. We are of opinion this is not a very material matter one way or the other. It tended to explain the position or particular locality of the president’s office in the bank and as that occupied by appellant as his business division in the building.

Another bill shows when McKinnon ran out of the bank, while the parties were shooting at him, he left his grip with a lot of papers in it; that he recovered this grip a few hours later the same evening, it being brought to him by the sheriff; that it had been rifled of its contents. There were some objections as to the manner of identifying this and what papers were taken, etc. We are of opinion thei-e is nothing worthy of consideration in reference to this matter.

There was an exception reserved to statements made by Patterson immediately after being shot, and also later, made to two physicians who were called to attend him. Most of this, if not all of it, was res gestse, and that made to the physicians was dying declarations. These matters were properly admitted.

While on the witness stand appellant, testifying in his own behalf, was required on cross-examination to answer the state’s inquiry and state that he had been indicted in 19 cases charging him with forgery in Freestone county, and that the indictments had been returned since the shooting of John S. Patterson, and had been returned by a grand jury of Freestone county since this case was called for trial in the district court of McLennan county. It was claimed this was prejudicial to his rights. The court admitted this as explained by him because the defendant had filed an application for suspended sentence. We are of opinion that this was admissible under the circumstances with reference to this matter, and that all these matters had been shown before the jury anyway, except the mere fact of presenting indictments, and his connection with the forgeries and other matters running through three or four years in the conduct of the bank. This testimony could, it occurs to us, be considered by the jury with reference to his plea for suspended sentence. The jury, however, failed to regard the suspended sentence plea favorably, and convicted him of murder, and assessed his punishment at 99 years in the penitentiary. Bearing upon his plea for suspended sentence, we think this testimony was not erroneous.

While on the witness stand McKinnon was asked if he did not state to Mrs. Waller Baker, or in her presence, that neither he nor deceased Patterson was armed at the time of the shooting of Patterson, but that the defendant, in his opinion, believed Mr. Patterson was armed. This was offered by the appellant, and the state urged exception, which was sustained by the court. This we think shows no error. It was but the expression of an opinion on his part that he (defendant) believed Mr. Patterson was armed. It was not of a material character, and under the circumstances we are of opinion it was not admissible, and in any event was but a conclusion or opinion of the witness without any fact upon which to predicate it.

Another bill recites that while Pat Neff, leading counsel for appellant, was closing his argument for the defendant, and just before he had finished, Mrs. John S. Patterson, widow of deceased, who had testified as a witness in the case, but who had been excused from the rule by counsel for both sides and the court, had kept her place during the entire hearing of this case within a. few feet of the jury and in plain view of them, she being during all the time dressed in deep mourning, arose from her seat, and in the presence and hearing of the jury said to Pat Neff:

“Yes, you claimed to be the friend of my husband and followed him to the grave.”

This bill is qualified by the judge as follows :

“In the opinion of the court Mr. Neff provoked Mrs. Patterson to make the remark complained of. While he as one of defendant’s counsel was addressing the jury he turned toward. Mrs. Patterson, and, among other things, said, in substance: ‘For the little woman in black sitting over there, I have nothing but the deepest sympathy.’ ”

As explained there is nothing in this requiring a reversal.

There is also a bill of exceptions in regard to the introduction of the coat supposed to have been worn by deceased at the time he was shot. We deem it unnecessary to go into a detailed discussion of this bill. As explained by the court there seems to be no merit in this matter. There was a sharp contention about some of the matters incident to the shooting and location of the parties, and the wounds, etc., that would justify the court in permitting the coat to be shown to the jury. There was little, if any, blood on the coat, and it was introduced for the purpose indicated by the court.

The court gave the following charge, which appellant contends was erroneous:

“Under the facts proven in this case, John S. Patterson, as commissioner of banking and insurance of the state of Texas, had the right, under the laws of such state, to close the Farmers’ & Merchants’ .State Bank of Teague and take charge of its affairs at the time he was shot.”

This is not a charge upon the weight of the evidence. Mr. Patterson was shown to be the banking commissioner. This did not form an issue. There was no controversy about this, and it was not only proved by all the testimony, but was a conceded fact, and that he was at appellant’s bank at the time he was shot as such commissioner'looking after the affairs of the bank. Being such commissioner, he was authorized under the law to close the hank where the conditions justified such action. ' The legal proposition is, that as such commissioner he had the authority to close the bank. The law clothed him with such authority, and it is not a charge upon the weight of the evidence, hut is a charge directly stating the law as enacted by the Legislature. Even if it was a proposition of evidence and not of law, still this court has held in numerous decisions that where there is no issue on a given fact, but it is conceded and proved without contradiction that such fact exists, then it would not be an assumption for the court to assume in his charge the existence of such fact. We deem it unnecessary to go into a discussion of this question further.

The court’s charge on self-defense is criticized. It is as follows:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If from the evidence you believe the defendant killed the said John S. Patterson as charged, but further believe that at the time of so doing the deceased had made, or that it reasonably appeared to the defendant that he had made or was about to make, an attack on him, real or apparent, which, from the manner and character of it caused him to have a reasonable expectation of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant shot and killed the deceased, then you should acquit him, or, if you have a reasonable doubt thereof, you will acquit him.”

The objection is that this charge does not directly apply the law to the facts, and that the charge was confusing rather than elucidating. We are of opinion that under the facts of this case these, exceptions are not correctly taken. Such charge is ordinarily sufficient. Appellant’s testimony raising the issue of self-defense was testified by himself, and his language in this connection is as follows:

“I was talking to Mr. Patterson, pleading with him, telling him that if he closed the bank I would lose everything I had on earth, and it would not hurt him any to let it stay open three days and they run it; I told him that time and time again — just talking to him — everything- would be lost. After making that talk to him three or four times, we got nearly to the door, just walking along. I do not know where McKinnon was; he was not there. When Mr. Patterson got nearly to the door he turned around, and I told him to come back and sit down and talk it over and let’s get together and let us have something so as not to be wiped off the face of the earth, like the closing of the bank. He just turned around and then said, ‘Both of your boys have lied to me, and I would not believe a damn thing you say.’ I said, ‘That is mighty hard to take,’ and he said, ‘You can take that, or worse.’ J. E. Watson remarked, ‘Look out, Papa!’ and when he said ‘Look out, Papa!’ I just grabbed the gun and shot. I did not know whether I hit Mm or not. Q. What did you see, if anything, when Eddie said, ‘Look out, Papa!’ what did you see with reference to Mr. Patterson? A. He had his right hand right in this shape (defendant indicating by putting his thumb inside the right top side of waistband of trousers, fingers outside). I was not looking at his hand, and when I looked I saw it just like that, and that is when I shot. Mr. Patterson was standing on inside of the bank right close to the left door, and went out instantly after I shot. The windows were all shaded, as they had 'been left. Q. What did you next see and do? A. I just turned around a little, and Mr. McKinnon was coming at me, and I shot at him as he was coming at me. He said something. I don’t know what he said; I did not know whether I hit him or not. I shot a time or two more; I really cannot tell what I did do. I did not know where Mr. McKinnon was standing when I shot Mr. Patterson; did not observe him standing where Mr. Patterson was; I first observed him standing over 'to my left.”

This is the defendant’s theory of the shooting.

The state’s testimony is to the effect that Patterson had just stepped, out of the bank building before T. R. Watson shot him. Such is McKinnon’s testimony. He further states:

“I came right out from behind the fixtures to post this notice, and the three Watsons came right out with me, and Mr. Patterson was coming ahead, and he made the remark that he was going to supper. The last time I saw Mr. Patterson he was standing with his fingers hooked in his trousers, in the waistband of his trousers, like this. He had on a linen suit; it was a hot day, and he did not have on a vest; just a linen coat and trousers and holding his pouch in the fingers of his right hand. That pouch was a leather pouch, that’s the kind that is used to carry papers in; I imagine it was 18 inches long or something like that, made of black leather. I don’t remember Mr. Patterson saying anything when the shots were fired. Pie did not say anything as far as I know. I would say that the defendant was approximately 4 or 5 feet from Mr. Patterson when he shot; he was right on him; it burned his face, the powder. I did not say anything to the defendant or to J. E. Watson as Mr. Patterson stepped out of the bank. I had not done anything at the time the defendant turned the gun on me; I said nothing to him, only I was posting the notice on the door. I had put on my coat just a few minutes before I went on the outside, and I was using my hands there in the plain sight of the three of them posting the notice on the door.”

So it will be seen that Patterson at the time he was shot had the thumb of his right hand in the waistband of his trousers and his fingers hanging down. McKinnon’s testimony shows that Patterson’s right thiunb was fastened in the waistband of his trousers, and with the remainder of his fingers he held this leather pouch or grip. The testimony shows that Patterson had.the grip in his hand and left the place of the shooting with it in his hand. It is more than questionable that the issue of self-defense was raised, even by the testimony of appellant. Just prior to the shooting the parties seem to have been discussing with Patterson the propriety of their being given three days in which to straighten up their bank matters, and being informed by Patterson of the failure heretofore under promises to do so, and that he purposed to close the bank without further trouble, and started out of the bank, and then as he passed out was shot. If self-defense was in the case from this testimony, then we are of opinion the charge sufficiently applied the law in regard to that phase of the case.

There are 40 bills of exception in the record, and these cover over 700 pages of this very voluminous transcript. The statement of facts contains an additional 600 pages, and the original bill of exceptions contains something over 300 pages. Many of the bills have been treated in a general way as bearing upon the same subject-matter. To have treated each bill separately and gone into all details of appellant’s contentions would have required an unnecessary voluminous opinion without resulting good.

Finding no reversible error in the record, it is ordered that the judgment be affirmed.

PRENDERGAST, J.

When this cause was submitted, the oral argument impressed me that some errors had been committed on the trial. Since the submission I have had no opportunity to read and study this very voluminous record. Therefore I am not now prepared to express any opinion, and for the present do not express any.
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source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    BILLINGSLEA GRAIN CO. v. HOWELL et al.
    (No. 1246.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1918.
    Rehearing Denied March 20, 1918.)
    Corporations <3=»661(6) — Foreign Corporations — Right to Sue — Action Against Agent.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1318, as to right of foreign corporations to sue, such a corporation, doing business without a permit, cannot sue its agent.
    Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.
    Action by the Billingslea Grain Company against John Howell and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    R. H. Templeton, of Wellington, for appellant, R. H. Cocke, Jr., of Wellington, Counts & Counts, of Hollis, Old,, and A. M. Mood and II. G. Hendricks, both of Amarillo, for appel-lees.
   HALL, J.

Appellant Grain Company, a private corporation organized under the laws of Oklahoma, through W. S. Wisdom, as its agent, was engaged in buying grain and cotton seed at Dodsonville, Tex., during the summer and fall of 1916, for shipment. About the 10th of October of that year Wisdom was forced to leave and appellee, John Howell, accepted the agency for appellant Grain Company at Dodsonville, and represented said company in the purchase of cotton seed and grain until about November 2d, when he, according to his statement, ceased to buy for appellant Grain Company and entered into an agreement with interveners, Hendricks & Scruggs, a firm of Hollis, Okl., whereby they should furnish the funds for his use in making purchases, and that the profits and losses should be shared equally between said firm and Howell. It appears, however, that 'Bil-lingslea Grain Company was not notified of this arrangement, and of the fact that Howell had ceased to act as their agent, until November 6th, whereupon it filed this suit in Collingsworth county, Tex., and had a writ of sequestration issued and levied upon the grain and cotton seed then in Howell’s hands at Dodsonville.

Howell filed an original answer, consisting of a general denial and of a special answer, alleging that he was the agent of Hendricks & Scruggs, a partnership, and that the 'property seized by the writ was not the property of appellants, nor of the said Howell, but was in truth and in fact the property of said I-Iendricks & Scruggs; that it was paid for out of the funds of said Hendricks & Scruggs, under an agreement between defendant and said Hendricks & Scruggs that defendant should be paid a commission on all grain and cotton seed so purchased. He prayed that Hendricks & Scruggs -be made parties defendant, and alleged that at the instance and request of Hendricks & Scruggs he had replev-ied the property levied upon.

Hendricks & Scruggs filed an original answer, adopting the answer of John Howell, and praying for judgment in their favor. On the same day Hendricks & Scruggs filed a plea in abatement, alleging that appellant Grain Company was a foreign corporation; that it had not complied with the laws of the state of Texas, and obtained a permit to do business in the state, and was therefore not entitled to maintain the suit. This plea was tried, together with the other issues, and the cause submitted to a jury upon special issues, many of them immaterial and not necessary to be considered in disposing of this appeal.

The substance of the material issues found by the jury is: That Howell, on the 6th day of November, 1916, informed appellant that he would not let them have the grain; that appellant offered to pay Howell the price paid for the com, maize, and cotton seed, and his commission; that all grain and cotton seed purchased prior to November 2, 1916, was bought for appellant company, but that such purchases were not intended by Howell to be made for appellant company between November 2d and November 6th; that Howell accepted employment of appellant and agreed to act as his agent for the purchase of grain and cotton seed after W. S. Wisdom ceased to act, about October 10, 1916, but did not give appellant notice that he would not represent them as agent until November 6th; that appellant did not agree to release Howell from his contract of agency. In reply to a number of questions the jury found that appellant was a foreign corporation, that it was transacting business in Texas without a permit, and that only part of the grain purchased and sold by said company was on interstate shipments. The judgment is evidently based upon the findings of the jury upon this issue, and decrees that the suit be dismissed.

The proposition is urged by the second assignment of error that the court should not have dismissed the action, since it appears that, although plaintiff was a foreign corporation, and doing business in this state without a permit, it further appears that John Howell, as agent for the corporation, had purchased property and was holding it as such agent, and that therefore a failure to comply with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1314, did not apply to such a suit. In the original opinion we reversed the judgment of the lower court, basing our conclusion upon the Tennessee case, Memphis & Arkansas City Packet Co. v. Agnew, 177 S. W. 949, L. R. A. 1916A, 640, and the authorities cited in, the annotation found in L. R. A. 1916A, 646. As there stated, the weight of authority upon the general question of the right of a foreign corporation to maintain an action in a jurisdiction where it has not complied with the statute requiring it to obtain a permit is with the holding in the Agnew Case, to the effect that such statutes do not generally apply to suits between a foreign corporation and its agents and officers. A review of the matter, however, in the light of the motion for rehearing, and an able and exhaustive oral argument upon it, has convinced us that the judgment should be affirmed. Vernon’s Sayles' Civil Statutes, art. 1318, relating to the right of foreign corporations to maintain a suit in this state, is:

“No such corporation can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort, unless at the time such contract was made, or tort committed, the corporation had filed its articles of incorporation under the provisions of this chapter, in the office of the secretary of state for the purpose of procuring its permit.”

The Minnesota statute in almost the same language was construed by the Supreme Court of that state in Thomas Mfg. Co. v. Knapp, 101 Minn. 432, 112 N. W. 989, and the reasoning of the court in that ease we think is decisive of the proposition urged by the second assignment above. Elliott, Justice, speaking for the court, said:

“This court has consistently adhered to the rule that there can be no recovery upon a contract entered into in direct violation of the law. * * * Foreign corporations are denied the right to resort to the courts for the purpose of enforcing any claim arising out of business which they are forbidden to transact within the state without having first complied with the requirements of the statute. The terms of the statute are in no wise burdensome. In order to secure compliance therewith, the Legislature has imposed a penalty upon the corporation, and in addition thereto has withdrawn the privilege previously enjoyed through comity of maintaining action in the courts of the state. It is expressly provided that ‘no corporation which shall fail to comply with the provisions of this Act can maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort.’ No limitations are expressed, and no exceptions can be implied. The corporation must comply with the law, or the courts of the state are closed to it. The statute expresses a clearly defined public policy, and it is inconceivable that in the face of this prohibition a foreign corporation may, without complying with the statute, establish an agency within the state, proceed to transact business in violation of the statute, and, when its agent neglects to account for money received in the course of such business, bring an action in the state court against the agent and be heard to assert that the agent cannot raise the question of the right of the corporation to maintain the action. This would be to make the public policy of the state subsidiary to the propriety and policy of a rule of private law which forbids an agent to question the right of his principal to money collected by him for the principal. Such a rule entirely ignores the broad and controlling rights of the public. In the present case, for instance, the question is not whether Knapp is under a moral and legal obligation to pay this note or to account for money which he has received as the agent of the appellant. Knapp’s rights and obligations are matters of secondary importance in the face of the statute, which declares that the corporation cannot maintain any action upon any demand, whether arising out of contract or tort. As far as the right to raise this question is concerned, it is immaterial whether the action is upon a promissory note, or to recover money received by an agent for the use of his principal. The doctrine of estoppel cannot be applied to enable a person or corporation to do what is forbidden by law.”

It occurs to us, upon a reconsideration that under the broad and comprehensive language of our statute the language above quoted is decisive of this controversy. A review of the cases cited in the note to the Agnew Case, supra, shows that the statutes which were under consideration are not as broad as the statute of this state and of Minnesota. Nearly all of the cases holding that such statutory provisions are not applicable to suits between the corporation and its agent quote with approval from U. S. Express Co. v. Lucas, 36 Ind. 361, and this case is referred to by Judge Elliott, in the following language:'

“It was held that, while a foreign corporation which had not complied with the statute could not recover on a bond given by an agent for the proper discharge of his duty, it could maintain an action against the agent for money had and received in the course of the agency for the use of the corporation. It was said that the agent was estopped to dispute the title of his principal to the money. The court asks: ‘Why should an agent be allowed to place himself in a position of hostility to his principal and himself claim that which he hag received for him?’ This seems to be wide of the mark. The question is not what the agent, as between himself and his principal, should be permitted to do, but what the delinquent corporation is permitted to do by the laws of the state?”

The original opinion is withdrawn, and the judgment is affirmed.

HUFF, C. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.
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author: HAWKINS, J.

text:
    MARTIN et ux. v. GRANGER.
    (No. 10945.)
    (Supreme Court of Texas.
    Oct. 17, 1918.)
    Appeal an.d Error <§=5>430(2) — Application poe Writ op Brrob — Notice to Dependant in Error.
    Vernon’s Sayles’ Ann. Giv. St. 1914, art. 1542a, requiring plaintiff in error, upon filing application for writ of error with clerk of Court of Civil Appeals, to present copy of application to clerk, and to notify attorneys of. record for defendant in error of filing of application, is directory; and Supreme Court, upon failure, through oversight, of attorney to comply therewith, instead of dismissing, will direct delivery of copy of application to attorneys for defendant in error, and specify time in which to reply thereto.
    Action between E. T. Martin and wife and L. Granger, trustee.
    On motion by the latter to dismiss application for writ of error. Overruled.

      Y. D. Harrison, of Marshall, for applicant. Bibb & Bibb, of Marshall, for appellees.
   HAWKINS, J.

The motion to dismiss for want of jurisdiction is based upon the facts that plaintiffs in error did not present to the clerk of the Court of Civil Appeals, along with the application for a writ of error, a copy of the application, and did not give to the attorneys of record for defendant in error notice of the filing of the application, and said clerk did not deliver to said attorneys a copy of said application.

Erom the motion and the answer, considered together, it appears that the application was filed in the Court of Civil Appeals on July 6, 1918, in due time, but was not accompanied by a copy thereof, and no copy was delivered by the clerk; that said application was prepared in triplicate, and failure to send a copy thereof to the clerk with the application resulted from unintentional oversight on the part of the attorneys for plaintiffs in error, who, on or about September 5, 1918, when the matter was called to their attention, mailed to said clerk a true copy of said application, and then so notified the attorneys for defendants in error, who, meanwhile, on August 6, had learned from another attorney that said original application had been filed. The application and record were filed in this court on July 13, 1918, during our vacation.

Our statute provides, in substance, that, along with such application, the applicant shall deposit with the clerk of the Court of Civil Appeals a true copy of the application, and shall notify the attorney of record of the defendant in error of the deposit of said copy, and that, upon application by such attorney or by the defendant in error, the clerk shall deliver to him the copy of the application. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1542a. Eor the filing by the defendant i)n error of a reply to such application the law allows ten days after the filing of the record of the cause in the Supreme Court. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1542b.

Article 1542a is explicit, and should have been followed literally; but its language, we hold, is directory, rather than mandatory, and, under the circumstances, substantial justice may be subserved more effectually than by depriving plaintiffs in error of their right to have us consider their application solely because of such failure to deposit a copy thereof and to notify adverse counsel in time and manner contemplated by law.

Upon application of defendant in error, or his attorneys of record, said clerk of the Court of Civil Appeals will deliver to him or them said copy of said application; and, in any event, defendant in error may have until November 6, 1918, in which to file here a reply to said application. The clerk of this court is directed to mail, forthwith, to said clerk of the Court of Civil Appeals, and also to the attorneys of record of defendant in error, certified copies of this opinion.

The issue presented involves neither construction nor application of Vernon’s Sayles’ Ann. CSv. St. 1914, art. 1541, which fixes the time for filing such applications. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279.
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author: PRENDERGAST, J.

text:
    TRIAL v. STATE.
    (No. 4563.)
    (Court of Criminal Appeals of Texas.
    June 28, 1918.)
    Appeal from Karnes County Court.
    Dissenting opinion.
    For majority opinion, see 205 S. W. 343.
   PRENDERGAST, J.

Appellant, in his motion for rehearing, complains of the court’s statement of the testimony and what it was sufficient to establish. It may be stated in a general way that he contends the jury should have believed what he and some of his witnesses testified, instead of believing, and basing their finding upon, the testimony of his wife and the other state’s witnesses, and that this court should have stated the matter from his, and not the state’s, standpoint.

All the testimony has again been read and considered. The statement of the testimony and the conclusions justified thereby were fully and correctly stated in the original opinion, with one solitary exception. This was as to the distance from the depot to appellant’s residence. In the opinion it was stated that this distance was from one-half to one mile. A critical examination of the statement of facts again shows that this distance, or what the distance was, is stated by no witness. But it was sworn that the distance from appellant’s home to that of his father was about a mile. Appellant concedes, in his motion, that this court quite naturally fell into this error, because the record shows that appellant’s father lived something libe a mile from the depot. However, tlxis solitary mistake could not affect any question in the case. It was wholly immaterial what the distance was from the depot to appellant’s residence. It has no possible bearing on any question in the case. Otherwise, the statement of the evidence and conclusions clearly justified thereby were accurate and fully stated in the original opinion.

The statute proscribing this offense was given in the original opinion (205 S. W. 343). The gist of it will be given here again. It is: Any husband who shall willfully desert, neglect, or refuse to provide for the support and maintenance of his wife, who is in necessitous circumstances, or any parent who shall desert, neglect, or refuse to provide for the support and maintenance of his child under the age of 16 years, who is in necessitous circumstances, is guilty and shall be punished. The information herein, in separate counts, charged each of these offenses; that is, in one count applicable to the wife, and in the other count applicable to the little 6 weeks old very sick child of appellant. In order to make out the offense as to both or either, it would be necessary to show that appellant willfully deserted his wife, or child as the case might be, and that he neglected or refused to provide for the support and maintenance of his wife or child, and that they were at the time in necessitous circumstances. When this proof is made, the case is made out, and the jury are not only justified, but required, under the law to find guilt and assess punishment.

Now, as to the proof of these particular facts: It was frankly admitted by appellant:

“It would be folly to argue that the evidence is not complete and convincing that appellant did desert his wife.”

The statute (article 640c, Vernon’s Crim. Stats. [Pen. Code]) expressly enacts that proof of the desertion of the wife or child in necessitous circumstances or of neglect or refusal to provide for their support and maintenance “shall be prima facie evidence that such desertion, neglect, or refusal is willful.” Mrs. Trial, his wife, swore:

“We never had what I call a real quarrel. He never left the house without kissing me good-bye; never came without kissing me.” That just before his desertion they had not had a bit of trouble. That he wanted her to leave Hobson with him, because “he said we could get along with his father better.” “I always did everything that would please him; very devoted; exceedingly devoted. I never gave him any cause to treat me as he did treat me.”

She further swore:

That, when she returned from her father’s in San Antonio to her home in Hobson on February 11th, with her very sick baby, “I did not have anything to eat in the house. I did not have one nickel. * * * I had no money, and had nothing in the house to eat; not a thing. I remained there in the house two days before I left” — before returning to her father’s in San Antonio, after appellant had deserted her in the most cruel and heartless manner.

She further swore:

“During the time I stayed there, my neighbors provided for me. Mrs. Reinhardt brought me something to eat, and Mr. Moczygemba sent his daughter over with something. .Tim' iCeiner and Ed. Keiner brought me something.”

These neighbors, who testified, bore her out in her testimony. She further swore:

“While I was down there he did not send me any money, or provisions, or anything of the kind, and he never came to see me. He did not come to see how the baby was getting along. Then I went to San Antonio and stayed until I think it was March -25th. During that time he never sent me a nickel; he never sent me provisions. * * * When I came back here on the 25th (of March) I asked for the support of the baby, and the judge gave me $30 per month. Up to the order of the court, he never made any provision for my support, and had not sent me any money or provisions for the child. At the time he abandoned me, I did not have any means of support. I did not have a nickel. * * * From the time the trouble came up, until I came back down here, and this order was made in the court, he never sent me anything for the child. My husband never sent me any money, and never made any provision for me. * * * At the present time my means of support is this $30 per month. I have no other means of livelihood. I tried to get a certificate [to teach], but broke down, and could not do it.”

She further testified that while at San Antonio with her very sick infant child, and just before she returned to her home at Hob-son on February 11th, she was greatly in need of a pair of shoes, and phoned appellant for permission to buy a pair and have them1 sent to Hobson O. O. D. 1-Ie refused to let her get the shoes. A day or two before February 11th he delivered to the local paper at Hobson a notice for publication, and which was published on February 11th, just before Mrs. Trial reached Hobson, notifying the public that he would not be responsible for any accounts contracted by her. 1-Ie repeated several times in his testimony that he had never informed his wife that he intended to abandon her before she returned from San Antonio on February 11th. She swore she never had an intimation of his intended desertion of her until she was told by others, not by him, on February 11th. 1-Ie swore:

“I did not tell her, after she came back to Hobson, that I was going to quit her. I did not tell her, when she left to go to San Antonio with the sick child, that I was going to quit her. * * * I went up to the house and got custody of the little boy. I did not tell her then that I was going to quit her. I suppose there was not anything in the house for her to live on, for I had not been in the house for a week. I went up there for the purpose of getting the little boy, and I knew I was not coming back. I don’t think there was anything there for her to eat. I had not been there for a week, and I had not put anything there for a week. I had not furnished her anything. I did not offer her one dime. * * * I took those checks, making her believe I was going after the grips. I was leaving her with tlie impression that I was coming back. * * * I did not go in and see the baby that day. X did not go in and look at its condition. I did not send my wife any money while she was in San Antonio with the baby.”

He swore that on March 25th, when she applied to the trial court for an allowance of $30 per month for the support of herself and her children:

‘‘It is a fact that I had an attorney down here, and fought just as hard as I could in this court to keep from paying her and those minor children $30 per month for their support.”

He swore that, while he had made up his mind some four months before February 11th to desert his wife, he had never told her so, or intimated to her that such was his intention. .In his testimony in chief he testified that while his wife was in San Antonio, after the birth of her last child, and as understood while she was there with the sick baby in February, he denied writing any letters to her that he wanted her to come back to Hob-son. After he had left the stand, the state, for the purpose of further crossing him on this point, had him take the stand, and he reiterated that statement. Thereupon the state handed to him two letters to her which he admitted he wrote and signed, and stated that both of them were written and signed after his last baby was born. One of them is as follows:

“Dear Darlings: I arrived safe. I certainly was sleepy. * * * I am sending, you the eggs and butter. I certainly am lonesome. I cried all the way to the depot. I must close. The train is due. Your devoted hubby and papa. Thousands of kisses to you and babies. [Signed] Pete.”

In the other, evidently written much later, he wrote:

“Darlings: I arrived all right. I am sending you eggs, cotton, and Med. I am working in the store this evening. I will send you money so you can come home Sunday. With kisses and love to you and the babies, your devoted hubby. [Signed] Pete.”

On and after' February 11th he never at any time or at any place furnished her with any eggs, or butter, or cotton, or medicines, or money, or anything else on earth in the way of provisions or clothing, or any money by which she could procure any of the necessities of life. The small sum of $30 per month, which the court required him to furnish her after March 25th for her support and that of her babies, was furnished by him against his will, over his protest and earnest opposition. 1-Ie says he told his father and brother to furnish her on the 11th, the very day he deserted her. Neither of them testified. He did not know what was done or said with reference thereto by either of them, as he was not present at any time when they did, or offered to do, anything. The testimony, without dispute, positively shows that all on earth his father ever offered to do for that woman, on or about February 11th, when appellant so cruelly and heartlessly deserted her and his child, was to offer to pay her hotel bill for one night, and that was done, to induce her to leave his residence, from which he had already ordered her away; and, as she declined to go, he called an officer, and had the officer take her away from his residence. His brother did not furnish her anything at all to support her or her child at any time. All he did was to furnish her with $3 with which to buy a ticket to San Antonio, so as to get her away from Hobson and appellant. At no time and in no way did he, or his father, or his brother, or any one for him, furnish his wife, or his infant child, with anything whatever to support or maintain them.

Appellant closes his motion for a rehearing herein with this statement:

“We are willing to submit this case upon one proposition, and one only, and that is: If this record does not show that this man attempted to provide for his wife and child from the very hour of the alleged desertion up until the hour of trial and conviction, then this judgment should be affirmed.”

The evidence overwhelmingly establishes affirmatively that appellant at no time, within a day or two from the time he cruelly and heartlessly deserted his wife and child, provided one single solitary.thing for their support and maintenance, that they were each and both so deserted by him, and that they were each and both, all the time, from the time of his desertion of them in necessitous circumstances. This very question was submitted to the jury in the special charge requested by appellant, ■ and the jury found against him, as they should have found— could not legally otherwise have found. Every question in the case was correctly decided against appellant in the original opinion. Under no circumstances should a rehearing be granted, nor this case be reversed, but unquestionably, under the law and justice, and for humanity’s sake, and for the sake of true womanhood and innocent babyhood, should this case be affirmed.

I protest to the action of my Associates herein.


author: BROOKE, J.

text:
    TEXARKANA & FT. S. RY. CO. v. BLAND, County Judge, et al.
    (No. 403.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 10, 1918.
    Rehearing Denied Oct. 9, 1918.)
    1. Public Lands &wkey;>172(ll) — Right of Way Over — Width.
    Under Rev. ,St. 1911, art. 6482, giving railroads right of way over public lands, a railroad, which constructed its main line over a hundred foot right of way condemned through private lands, is entitled to a right of way of like width only over adjacent public lands against a county seeking to open a road.
    2. Public Lands &wkey;>172(l]) — Width of Right of Way — Burden of Pboof.
    A railroad; claiming, under Rev. St. 1911, art. 6482, a right of way over public lands in excess of the hundred foot width which it condemned over private lands for its main line, had the burden to show the necessity for a way over public lands exceeding 100 feet in width.
    3. Railroads <&wkey;73(l) — Exclusion oit Trespassers — Right op Way.
    A railroad company may exclude trespassers from its right of way, and take reasonable steps to effect that purpose and protect itself therefrom.
    Appeal from District Court, Orange County; W. T. Davis, Judge.
    Suit by the Texarkana & Ft. Smith Railway Company against D. C. Bland, County Judge, and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Orgain, Butler & Bolinger and T. D. Carroll, all of Beaumont, for appellant. Holland & Holland, of Orange, for appellees.
   BROOKE, J.

This suit was' instituted by the appellant, Texarkana & Ft. Smith Railway Company, on January 5,1918, by presenting its original petition for injunction to the Hon. W. H. Davidson, judge of the Fifty-Eighth district court of Jefferson county, Tex.; it being alleged in said petition that Hon. W. T. Davis, judge of the district court of Orange county, was inaccessible for the purposes of said injunction, within the provision of the statute in such cases. The defendants were the county judge and county commissioners of Orange county, Tex. The injunction was sought to prevent the county commissioners and county judge from constructing a public road over certain lands in Orange county, Tex., claimed by the plaintiff as a right of way. By plaintiff’s first supplemental petition, the controversy resolved itself into a question of plaintiff’s right to prevent the defendants from locating a public road on land claimed by it as a right of.way across three sections of land in Orange county, same being section 16, International & Great Northern Railway Company, section 21, Texas & New Orleans Railroad Company, and section 10, International & Great Northern Railway Company, as shown by agreement on which the hearing was held. The agreement was as follows:

“It is agreed for the purposes of this motion to dissolve the injunction only, that the blueprint plat attached hereto is a correct description and delineation of the lands in controversy.
“As to section No.. 11, International & Great Northern, the plaintiff owns by deed a 100-foot right of way, which is not touched by the proposed public road. As to section 16, International & Great Northern Railway Company, section 21, Texas & New Orleans Railroad Company and section 10, International & Great Northern Railway Company, plaintiff has such right of way as was given by the statute as to public lands; that' since its survey and the building of its railroad, plaintiff has been in possession of said land by its main line of railroad track crossing same, as shown on said plat, and operating its trains thereover, claiming a right of way 200 feet in width across said lands, and that at the time said railroad was surveyed and built, said sections above referred to were public lands of the state of Texas; that defendants have surveyed across said lands a public road, and are attempting to lay out and construct same with its nearest edge 50 feet from the center line of said plaintiff’s track, and upon the land on said sections claimed by plaintiff as right of way aforesaid, said road paralleling said plaintiff’s said railroad track through said sections; that such land has not been condemned by defendants, and said plaintiff has not consented to the construction of said road.”

On March 21, 1918, after a hearing, the injunction issued by the judge of the Fifty-Eighth district court was in all things dissolved, but was continued in force pending this appeal, which was had in due time.

The assignment is that the judge of the district court of Orange county, Tex., erred to the prejudice of appellant here in refusing to sustain and in dissolving the temporary injunction issued in this cause by the judge of the Fifty-Eighth judicial district of Texas on January 15, 1918, for the reason that under the statutes of the state of Texas in force at the time appellant acquired its right of way across the land in controversy, appellant, by force of such statutes and its survey and claim to such right of way, was vested with title for right of way purposes to a strip of land 200 feet in width across the land in controversy, of which right of way appellant was entitled to the exclusive possession, and the threatened acts of defendants herein were an unwarranted and illegal interference with appellant’s right to the exclusive possession thereof. The proposition under this assignment is that under the law in force at the time appellant’s line of railroad and right of way were surveyed and appropriated by it, appellant was vested by law with a right of way 200 feet in width across all lands belonging to the state of Texas.

From the pleadings and facts, one question is presented to this court for decision, to wit: Does the statute grant to railroads building across the public lands with the main line, ipso 'facto, a 200-foot right of way across such public lands? It will be borne in mind that the lands here in dispute are crossed only by appellant’s main line of railroad, and there is in this record no contention nor proof that there exists a necessity for a 200-foot right of way. There is in this record no proof of any necessity for obtaining material in the proper maintenance of its road from a right of way to such width, and it is shown that in the acquisition of its right of way from private owners, the railroad acquired and owns a right of way 100 feet in width. In 1879, Revised Statutes 1911, art. 6482, was passed, reading as follows :

“Right of Way over Public Lands. — Every such corporation shall have the right of way for its line of road through and over any lands belonging to this state, and to use any earth, timber, stone or other material upon any such land necessary to the construction and operation of its road through or over said land.”

Prior to title passage oí this statute, railroads had the implied authority to construct their lines over the public domain, and from a reading of the authorities it seems to be doubtful that the statute extended to railroads any greater right than existed prior to its passage. Ayres v. Railway Co., 39 Tex. Civ. App. 561, 88 S. W. 436. Prior to the passage of the statute quoted above, that is, prior to the passage of article 6482, railroads were built under special charter, which special charter could confer the limit of the powers to be exercised by such roads in their construction and operation. In some of these special charters a 200-foot right of way was provided for. In others a less width was permitted. In the case of Ayres v. Railway Co., supra, it appears that the special charter upon which the railroad was constructed gave to it a right of way 50 yards, or 150 feet, in width. In going over the field, in an effort to ascertain the probable meaning of the statute above referred to, no opinion that we have access to, or to which we have been cited, undertakes to define in special terms what is intended to be conveyed by the statute. It will be borne in mind that in 1876 the Legislature, in article 6484 of the Revised Statutes, which, it is contended, should be read in connection with the aforesaid statute, enacted the following law:

“Such corporation shall have the right to lay out its road not exceeding 200 feet in width, and to construct the same; and for the purpose of cutting an embankment, to take as much more land as may be necessary for the proper construction and security of its railway, and to cut down any standing trees that may be in danger of falling upon or obstructing the railway, making compensation in the manner provided by law.”

Article 64S4 has reference only to the acquisition from private parties of lands by railroad corporations in the construction of their roads, and the only statute which it is claimed would give the right to the appellant is article 6482, which has been heretofore set out. In other words, the only statute passed by the Legislature in Texas with reference to the right of way over public lands was and is limited to the language set out above.

In considering, therefore, what is meant or intended to be meant by the Legislature in the use of the words, “shall have the right of way for its line of road through and over any lands belonging, to this state, and to use the timber, stone and material upon such land necessary to the construction and operation of its road through and over said land,” the only light obtainable is to be found in the Ayres Case, supra, and which it may be well to set out at some length, in order that e may be guided by such light as it may throw upon the instant case. The facts in that case were as follows:

“In 1866 the Great Northern Railroad Company obtained a charter from the state of Texas empowering it to construct a railroad through the county of Montgomery, and to other points not necessary to be disclosed. By 1871 it had constructed the road, and begun its operation. In 1879, it sold its road and franchise to the International & Great Northern Railway Company, which continued the operation of the road up to the time of the bringing of this suit. Inasmuch as the defendant Santa FS Company holds only under and by virtue of the rights of its codefendant, we do not further state its connection with this case. At the time of the construction of the road in question the land was a part of the public domain. The charter of the Great Northern Company was special, and authorized it to acquire a right of way along its route, not to exceed 59 yards in width, but contained no express and unequivocal terms or donation in that respect. The Wilson Lang survey was patented in November, 1873, and was described as lying on the Great Northern Railroad. In March, 1887, the plaintiff acquired the Lang survey, moved upon the tract, and has occupied it ever since. The town of Conroe, * * * the county seat of Montgomery county, was established after appellant’s purchase, and is partly on the Lang survey. It is situated at the intersection of the roads of the two defendants. In 1888 or 1889 appellant platted a part of the Lang survey into town lots, and began to sell them according to the plat. This plat recognized the right of way of the Great Northern as having a width of 65 feet from the center of the track each way, the lots abutting on the right of way according to that width. Plaintiff testified that he saw the road in 1872. It was completed and the right of way cleared at that time. It has been kept cleared ever since in the general maintenance of the line, but a little wider now than then. The general width to which the light of way has been cleared and maintained through the Lang survey for years is at least 130 feet. Whether the possession of this, uninclosed as it was, was of such continuous character as to sustain the plea of limitation to the entire width, may well be doubted, but that the railway company, in the exercise of its charter powers, took possession of a right of way at least the width awarded by the court, is to our minds established beyond controversy. This being true, if the authority given 'by the state to construct the road through Montgomery county, and to that end to acquire a right of way not to exceed 50 yards in width, carried with it either directly or inferentially a grant of right of way through and over such tracts on its route as were yet a part of the public domain, the judgment should be affirmed whatever may be the state of the proof on the issue of limitation. Article 4423 of the Revised Statutes, which became a law in 1879, expressly gave to railway companies a right of way through the public domain. Prior to that time there had been no express provision on the subject; so it follows that the defendants are unaided by the article cited, or anything of a like nature preceding it. As stated, however, in Tex. Cen. Ry. Co. v. Bowman (Tex. Sup.) [97 Tex. 417] 79 S. W. 296: ‘The general laws which had been enacted regulating railways theretofore seem to have assumed, rather than to have expressly declared the existence of the right over the lands of the state, for the provisions for the acquisition of such rights by purchase or condemnation applied only to private property. The general law passed in 1876 for the chartering of railway corporations omitted any express provision as to right of way upon lands belonging to the state, but,_ as before, regulated the acquisition of such right over private property.’ Justice Williams, after this comment upon the state of the law, proceeds to show that the absence of any provision for the acquisition of right of way over public properties pervaded all general legislation on the subject until the Revision of 1879. While it is not expressly hold, nor was it necessary to be decided in the case- cited, it is inferentially held that prior to the passage of the act a charter authorizing the construction of a railway through a country held in part by private ownership and in part .by the state, the general laws providing for acquisition of right of way from private owners, ímt leaving the company powerless against the lands of the state, impliedly granted the right to construct through and over the public domain. The grant is so necessary to the exercise of the general power conferred it is inevitably carried by the general terms of the grant. This is in accord with the elementary rule of construction that a power necessary to the exercise of a power already granted will be implied. We are of opinion, therefore, that hy its charter the Great Northern Company acquired the right to enter upon and appropriate so much of the public domain over which its route was projected as was necessary for its right of way, not to exceed the prescribed width, and that, having done so, the width actually appropriated was not affected by the subsequent grant by the state of the Hang survey.”

And in the instant case, we are of opinion that the Texarkana & Ft. Smith Railway Company acquired the right under the statute, and even by inference before this statute was passed to enter upon and appropriate so much of the public domain over which its route was projected as was necessary for its right of way.

As to what width was actually appropriated does not appear in the statement of this case. We do not mean to say that the statement leaves any doubt as to the width claimed by the appellants, but as to the evidence of the intention to appropriate and utilize this record is silent. What was the intention of the appellant railway company at the time it entered upon this public land so granted by the state of Texas? The statement of facts will show that the railway company had been in possession of said land by its main line of railroad track crossing the same, and operating its trains thereover, claiming a right of way in width 200 feet. The railway company acquired by purchase from private individuals, or by condemnation proceedings, a right of way for said main line 100 feet in width. The said main line of appellant does not consist of a larger area than that acquired from said individuals, save and except the 200 feet which they are claiming by right of the fact that they entered upon and acquired an easement to, over the public lands of this state. As evidencing the fact as to what was the intention of the railway company when it entered upon the aforesaid public land, outside of the fact that it was running the line of its track over the same, there is nothing to indicate how much land it claimed for its said right of way; that is to say, it being through a wooded country, there was nothing visible to the eye either to show that they claimed 200 feet or any other specific amount. If there had been a right of way cleared, if the land had been fenced, if there had been anything of any kind or character whatever done to show that when the railway company entered upon said public land it was claiming 200 feet in width, if the fact that the roadbed had been uniformly of the extent of 200 feet, it would evidence, to our minds, a different state of facts to that obtaining here. On the contrary, in this case we find the 100-foot limit applied, as a matter of fact, only to the condemnation of private property, while they had it in their power, either by purchase or condemnation, to obtain a 200-foot limit for the operation of said line of railroad. Their intention to claim from the state 200 feet, therefore, cannot be said to be evidenced by their acts in only condemning or acquiring by purchase 100 feet for right of way purposes, and for the maintenance of said railroad, but rather goes to show to our minds that only 100 feet in width was necessary and requisite for the proper construction of the right of way across and through the said country, it not being shown by the evidence that any additional space was needed, either for the construction or the operation of said railway company. To say, therefore, that the appellant, when it undertook to lay out its line of road, by purchase from private parties, only required a space 100 feet for its roadbed, but when it entered upon the public lands of this state, it required 200 feet, in our opinion, would be equal to saying that when the road and its requirements made it necessary, by private purchase, only 100 feet in width was required, but that the state of Texas, in the gift of the right of way, ought not to confine it to 100 feet, but would not only give to the railway company the 100 feet required, but go beyond that and give a bonus of 100 feet for going across the public domain. Not only can the contention not be made successfully on the ground that a uniform width is necessary for the construction and operation of the railroad, but it occurs to us that when public domain has been entered upon, and so much appropriated as is sufficient, as shown by the facts, for the construction and operation of the railroad company, that to go further, in the absence of a specific grant by the Legislature, would be to go far beyond not only an expressed, but an implied, intention of the lawmaking power.

The cases cited by the appellant have been diligently read, but it is apparent to our minds that none of them sustain the contention of appellant that by the simple building of its main line track across the public lands of Texas it would acquire, under the statute in force in 1879, 200 feet of right of way. There is in such statute no express donation or grant of a right of way of any such width, or any other width, and as it is dependent for its rights alone upon this statute, it can acquire no greater rights than conferred upon it by this statute. That it does acquire a right of way over these lands is not disputed, but the extent of that right of way would be controlled by the necessities of the case, and where there is no-necessity shown for a right of way exceeding 100 feet in width at the time of the taking, and where the right of way is shown, at other places to be 100 feet in width, so selected and acquired from private owners by the railroad, the burden being in this instance upon the railway company to show if there is a necessity for a right of way exceeding 100 feet in width, it must be held, in our opinion, that the right of way through the public lands of this state should be limited to conform to and be the same as those acquired by the road from private holders, in the present case 100 feet in width. In this case, it being admitted that the 100-foot right of way is not crossed by appellees in their proposed road, appellant could have no right to interfere with the construction of such road, although it is well settled in this state, in our opinion, that from the right of way of a railway company it may exclude trespassers and take reasonable steps to effect that purpose and protect itself therefrom. However, in dealing with the case as presented, the one question alone, in our opinion, settles the controversy; and the appellant having shown no right to interfere with the construction of the road, as prayed for, the judgment of the lower court is in all things affirmed.

Chief Justice HIGHTOWER felt that he should recuse himself in this case, and did so, and did not participate in its disposition.
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