author: DAVIDSON, J.

text:
    TAFOLLA v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Weapons (§ 13*) — Carrying — Justification.
    The rule that, where a person going about bis usual business is informed that unknown persons will likely assault him or have threatened to do so, he may prepare for bis defense will not justify a person who on election day is interesting himself in the candidacy of another, and who several times during the day is taken by officers from within the inhibited limits near the polls, in carrying a pistol, even though he had reason to believe from assaults made on others that he was likely to be assaulted.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 16, 17; Dec. Dig. § 13.*]
    2. Criminal Law (§ 829*) — Trial—Refusal of Instructions Covered.
    In a prosecution for carrying a pistol, it was not error to refuse instructions covered by those given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    Appeal from Bexar County Court; J. R. Davis, Judge.
    Pete Tafolla was convicted of carrying a
    pistol, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for carrying^ a pistol.

The facts show that there was an election in San Antonio somewhat exciting in its nature and a little strenuous; the election being held for the selection of a mayor of that city. The state’s case is to the effect that on the 13th of May, the day of the election, Mock was a policeman on duty at election poll No. 14, which was at the corner of West Commerce and Pinto streets. The witness saw a crowd, in which there seemed to he a fight, at the corner of two streets, and went to the scene of the trouble, and saw defendant standing on the ground near a buggy, saw him get in the buggy, and some one informed him that he had a pistol. Thereupon he searched defendant, and took a pistol from his pants pocket — a small automatic pistol. Morales testified that defendant had been to election precinct No. 14, at the corner of West Commerce and Pinto streets, a number of times during the morning, and was loud and boisterous, and was put out of the poll limits several times. In the evening he came back in his buggy and stopped at the corner of West Houston and Pinto streets, a block from the poll, and began to hurrah, saying, “Oh, we got them beat;” and witness went up to him and said, “If you think you have us beat, why don’t you bet your money?” “He said he did not care to bet; that he did not have money. I told him he was afraid to bet. He said, ‘Your crowd has the money, and, if you win the election, you will buy it.’ I called him a liar. He was in his buggy. He grabbed his whip, and I grabbed it away from him, and he ran his hand in his pocket as he got out of the buggy and pulled a pistol out of his pocket. The crowd prevented further trouble, and a policeman arrested defendant, and took his pistol.” This witness was a supporter of the ticket headed by Clinton G. Brown, and defendant was a supporter of the ticket headed by Joseph Ryan; they being the opposing candidates for mayor. This is the state’s case.

Appellant testified that he was a supporter of Ryan for mayor; that he was afraid he was going to be assaulted by supporters of Brown; that he had been told by three or four different parties he was in danger of being assaulted; that other Ryan men had been assaulted, and he wished to protect himself from any unlawful attack upon his person; he asked a deputy United States marshal for permission to carry a pistol, but could not get the permit, and on election day he put the pistol in the bottom of his buggy between his feet and the dashboard, and put a newspaper over it; that he was working on that day, going from poll to poll in the city to see that the Ryan men voted, and to get them out to vote; his voting poll was No. 6; that he went with Mr. Poston from poll No. 15 in his buggy to poll No. 14, at the corner of West Commerce and Pinto streets; that he was going to poll No. 6, and poll No. 14 was six or eight blocks out of his direct way to No. 6; that he stopped his buggy a block away at the corner of West Houston and Pinto streets; that Poston got out of the buggy, and Joe Morales offered to bet that Brown would-win. “I told him I did not want to bet; he seemed mad, and when I would not bet he slapped at me hard, and then grabbed my whip, and I got hold of the whip, and he broke it. I then reached down in my buggy and got my pistol, and just got out of the buggy, and the crowd got hold of Morales, and I put the pistol in my pocket, and was getting back in the buggy when the policeman arrested me, and found the pistol in my pocket.” On cross-examination he testified : “Some three or four parties told me I was in danger; one of them was Sim Guerra. I don’t remember the name of any other who told me, or when I was told.” Poston 'testified that he was in the buggy with defendant on day of city election; that when on the way to box No. 6 he saw the pistol on the bottom of the buggy between defendant’s feet and the dashboard, and that it was still in the buggy when they got to West Houston and Pinto streets, when he immediately got out, and did not see the commencement of the difficulty; that paper was over pistol part of the time. Guerra testified that he never at any time told defendant he was going to be attacked, or that he was in danger of being attacked. “This was at my house while I was in bed suffering from an assault. I was beat over the head with a pistol.” This is the statement of facts.

There were quite a number of charges given and refused which seem to present the ease pretty generally and fairly well. There were quite a number of exceptions reserved by bills, the first of which is, in substance, as follows: Defendant offered to prove that a party of Brown supporters in the city election assaulted with knife and pistol one of the partisan supporters of Ryan for mayor, and then on the same night a party of Brown supporters invaded the west side headquarters of the Ryan supporters, and then and there assaulted and beat up with pistols a number of Ryan supporters, which was offered to show that the defendant had reasons to believe the warnings he had received as to his danger of attack from unknown persons to be true, and his inability to protect himself against such assault by having a number of unknown persons arrested by legal process. The county attorney objected to this testimony, for the reason that the fights and riots of others could not justify defendant in carrying a pistol, and was irrelevant and immaterial to the case. Under the facts of this case we are of the opinion the court was correct in excluding this. Taken in connection with the evidence as given by the defendant himself it was not error. He shows that he was working that day over the city, going from one polling place to another in the interest of the Ryan ticket. This he had a right to do. Every citizen has a right to electioneer for his side of the question or for any candidate he sees proper to indorse or desires to see elected; but this would not justify him in carrying 'a pistol. If appellant was anticipating an attack from unknown parties, under the decisions of our court he would be justified in carrying some weapon of defense, if the threatened attack was of such a nature as would authorize him to believe that his person or his life was in danger; but in this case appellant was going about the city from place to place for electioneering purposes, and seemed from the testimony little enthusiastic, and on more than one occasion was taken by the officers from within the inhibited limits, and where he should not have been. Under these circumstances we believe the court’s ruling was correct, and this testimony was not authorized.

There were several charges asked by the defendant which were refused by the court; but we are of opinion that the charge given by the court and requested instructions given sufficiently presented any defense that he was justly entitled to have submitted. This requested charge was given: “You are instructed that, if the defendant carried a pistol in his buggy at the bottom thereof near the dashboard, then you will determine from the law given you in the court’s charge whether or not the same was on or about the person of defendant. And if the same was not on or about his person, you should acquit the defendant, and upon this question, if you have a reasonable doubt, you will find defendant not guilty.”

Another requested charge was given, as follows : “If you find from the evidence, beyond a reasonable doubt, that the defendant, Pete Tafolla, did, in Bexar county, Texas, on or about the time alleged in the information, carry on or about his person a pistol, and that at the time the defendant did not then have a reasonable ground for fearing an unlawful attack upon his person, and that the danger of such attack was so imminent and threatening as not to admit of the arrest of the party or parties, if any, about- to make such attack upon him, by legal process, then you will find the defendant guilty, and assess his punishment by a fine of not less than $100 nor more than $200, or by confinement in the county jail for apy period of time not less than 30 days nor more than 12 months, or by both such fine and imprisonment in the discretion of the jury.”

The jury was further charged, at the request of the defendant, that the burden of proof is on the state of Texas to prove beyond a reasonable doubt that the defendant did, in Bexar county, Texas, at or about the time stated in the information, carry on or about his person a pistol.

The following charge was also asked by appellant and given: “The law'of this state permits a citizen to carry on or .about his person a pistol whenever he has reasonable grounds for fearing an unlawful attack upon his person, and the danger is so imminent and threatening as not to admit of the arrest of the party or parties about to make the attack on him, upon legal process. Therefore, even if you should find that the defendant did have and carry on or about his person a pistol, in Bexar county, Texas, at or about the time charged in the information, if you further find that the defendant then had reasonable ground for fearing an unlawful attack upon his person, and that the danger was so imminent and threatening as not to admit of the arrest by legal process of the party about to make such attack, then you will find the defendant not guilty.”

The following charge was also asked by appellant and given: “In all criminal prosecutions the defendant is presumed to be innocent until his guilt is established by the state beyond a reasonable doubt. In this case you are instructed that the burden is upon the state to prove the guilt of defendant beyond a reasonable doubt, and, if you have a reasonable doubt as to the guilt of the defendant, you will give him the benefit of that doubt, and find him not guilty. You are the exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony; but you are bound to receive) the law from the court as it is herein given you, and be governed thereby.”

The following charge was asked but refused: “If you find from the evidence that the defendant, at the time and place mentioned in the information, had a pistol lying in the bottom of a buggy in which he was then and there sitting, and that upon apprehending an attack upon his person, if any he did so apprehend, he took the pistol in his hand with the intention of resisting such attack, then you are instructed that under such circumstances the defendant would not be guilty, and, if you so find the facts, you will acquit the defendant.”

There are other charges along the same line which were asked and refused; but we are of opinion the court did not err in refusing the requested instructions, inasmuch as he had 'sufficiently presented these phases of the law; nor do we believe the court was in error in refusing to charge the\ jury that the fact that appellant placed the pistol in the buggy and carried it, as he says he carried it, under the circumstances detailed by himself, without taking into consideration the state’s evidence, that he was justified in carrying the pistol. If appellant was going about his usual business, and had been informed that unknown parties would likely assault him, or had threatened to do so, and not knowing who the parties were, he would be justified in preparing for his defense against such assault. But under the facts of this .case the appellant himself makes it apparent that he was not going about his usual business, but was going about the city interesting himself in the candidacy of Mr. Ryan for mayor of the city. This he might do; but he was not justified in going from polling place to polling place carrying a .pistol and conducting himself as the witnesses state he was doing. This would he carrying the doctrine of carrying a pistol under our law beyond what was intended by the law to protect him in carrying the pistol. Therefore the court did not err in giving the charges quoted and similar charges presenting this phase of his contention. Under the facts we think appellant was not justified in carrying the pistol.

Believing there was no such error committed as deprived appellant of a fair trial, or deprived him of any legal rights under the pistol la,w, we think the judgment ought to be affirmed, and it is accordingly so ordered.


source: Caselaw Access Project

author: PRiENDERGAST, P. J.

license: Public Domain

text:
    COOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Homicide (§ 309) — Evidence—Negligent Homicide.
    Evidence in a trial for homicide held not to raise the issue of negligent homicide.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    2. Homicide (§ 165) — Evidence—Personal Relations — III Treatment.
    On a trial of accused for the murder of his wife, evidence of his ill treatment of her during their marriage of 13 months was admissible of itself, and especially so in connection with other testimony showing his continuous ill treatment* of her down to the time of the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 319; Dec. Dig. § 165.]
    3. Criminal Law (§ 1153) — Appeal—Discretion oe Trial Court — Reception of Evidence.
    Where relatives of accused were present at the trial and heard the testimony of a witness for the state after the rule had been invoked, but the state’s attorney at the time did not know that they knew anything about the case, but after adjournment of the first half day of trial had them sworn and placed under the rule, the trial court, in permitting them to testify, did not abuse his discretion, so as to afford ground for reversal.
    [Ed. Note. — For other1 cases, see .Criminal Law, Cent. Dig. §§ 3061-3066; Dec. Dig. § 1153.]
    4. Criminal Law (§ 706) — Trial—Reception of Evidence.
    A witness for the state did not or would not remember that he had told the county attorney that immediately before the shooting by accused deceased told accused “not to shoot her,” but testified that he said “not to hurt her,” whereupon the county attorney held before him and examined him from a statement made by him shortly after the shooting that deceased had said to accused, “Don’t shoot me.” The witness, when recalled the following day testified that deceased, had said, “Don’t shoot me.” Held, that there was no error in permitting such examination by the county attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    5. Homicide (§ 125) — “Excusable Homicide” — Accident or Misfortune.
    Homicide is excusable where the death of a human being happens by accident or misfortune.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 189, 190; Dec. Dig. § 125.

    For other definitions, see Words and Phrases, vol. 3, pp. 2555, 2556.]
    6. Criminal Law (§ 829) — Trial—Requested Instructions — Given Instructions.
    Where the court correctly submitted the issue of excusable homicide by accident or misfortune, there was no error in refusing the defendant’s special charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    7. Criminal Law (§ 778) — 'Trial—Instructions— Burden of Proof.
    The court was not called upon to give defendant’s charge that, as the evidence introduced by both the state and himself showed his statement that he shot and killed deceased by accident, and did not intend to kill her, the state must show that such statement was false, where in effect he did so charge, and the jury, without believing that his claimed accidental shooting was false, could not have convicted of murder in the second degree.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. § 778.]
    8. Homicide (§ 13) — Manslaughter — Implied Malice.
    In murder in the second degree malice will be implied from the fact of an unlawful killing not justified or excused.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 18; Dec. Dig. § 13.]
    Appeal from District Court. McLennan County; Richard I. Munroe, Judge.
    Eugene Cooper was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Taylor & Forrester, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRiENDERGAST, P. J.

Appellant was convicted of murder In the second degree, and his punishment fixed at 25 years’ confinement in the penitentiary.

The statement of facts is quite lengthy. The material evidence, however, is not extensive. The statement shows the witnesses were examined in chief, crossed, re-examined, recrossed over and over again — simply a rehashing of the same matter without developing anything additional in most of the re-examinations. The appellant and his deceased wife, whom he was convicted of murdering, and appellant’s sister and a man by the name of George Bradshaw, all lived in a small house at the time of the killing; appellant and his wife in one room, and appellant’s sister and Bradshaw in another. They had been thus living for a few months prior to the killing. Between 7 and 8 o’clock on January 5, 1913, these four persons together went to a picture show in Waco, where they remained till about 10 o’clock; they then went to a negro clubhouse, all the parties being negroes, where they remained, -dancing, drinking, and frolicking till 3 or 4 o’clock In the morning. Bradshaw and appellant’s sister went home first and went to hed. Appellant and his wife went later.

At the time of the killing appellant and deceased had been married less than 13 months. For several months after their marriage they lived at a different place from where the killing occurred. A few months before the killing they moved to the place where it occurred.

Gussie Perry, a sister of deceased, testified that she knew how appellant treated deceased when he found deceased had been to see any of her kinsfolk; that he treated her mean, though she never saw him strike her; that on the Saturday night before the killing deceased was at her house; when appellant came and knocked on the door, deceased opened it, and he told her to “come on down; you know it’s 7 o’clock.”

Ella Ware, deceased’s cousin, testified she knew of trouble between Ada Moore, deceased, and appellant after deceased and appellant were married; that deceased caught appellant in bed with Ada, and at the time pulled him out of the bed, and then told Ada that she had married appellant, and did not want to catch her with him any more. Thereupon Ada jumped on and had a fight with deceased; that this Moore woman was not the only one that appellant had anything to do with; that there was another woman by the name of Crystine; that after appellant and deceased were married they were at a picture show one night, and appellant sat by Crystine in this show; that deceased went to him and wanted him to come and sit with her; that he told her to go on back, and after they went home from the picture show appellant jumped on deceased, hit her with his fist, and started to hit her again when he was prevented by one who was present; that appellant just stayed with deceased when he got ready.

Mrs. Mattie Hayden, a white neighbor, testified she lived directly across the street from appellant and deceased at the time of the killing and for a few months continuously theretofore; that sometimes appellant seemed to be kind to deceased, and then again he would abuse her; that she had heard him curse her, and had seen him draw a gun on her in the fall during cotton picking time before the killing; that he seemed to be mad at the lime, but his wife was laughing; that the night of the killing she heard appellant and deceased when they got home just before the killing; when he stepped up on his gallery, she heard him say, “I will show you;” that they then went in the house, when she heard loud talking, but could not hear what they said; and that she then heard the report of the gun.

The evidence further shows that the woman Ada Moore was at the clubhouse with the others the night of the killing. Lizzie Brown, who was at the club that night, testified that appellant’s mother was also there, and that she and appellant’s mother lived together, but after they separated, when going home that night she went on home, but appellant’s mother stayed, waiting to see appellant ; that she did not know what she wanted to see him for, but that some of the parties at the club said they (appellant and deceased) were fussing up at the club; that she never heard it herself; that afterwards appellant’s mother came on to’ her house, and still later appellant and his wife, going to their home, passed their house, and appellant’s mother, hearing them, opened the door and called to deceased, saying, “Was he there?” Deceased replied, “Oh, I don’t know.”

Edna Cooper, appellant’s sister, who lived-in the house with them and George Bradshaw, on cross-examination, testified that she had heard appellant and deceased fuss and then make up several times while they were living together; that it was just kind of fussing, not real fussing; that appellant did not fuss with the deceased much; that she did not know what appellant had ever had to do with Ada Moore, but had seen them talking together, like that; that she had heard deceased hurrahing appellant about Ada Moore, and- she herself had hurrahed him about her.

George Bradshaw, who was living in the house with appellant and deceased and appellant’s sister, Edna Cooper, and had for some time before the killing, testified: That he went home that night before appellant and deceased, and when they came he had gone to bed and was asleep. That about 3 or 4 o’clock in the morning appellant and deceased came home, and appellant did not knock at the door, but shook it, and before he could get to it shook it again. That he then opened it and said to appellant. “Hell, quit that beating at the door that way.” That he went on back to his bed, and the deceased and appellant came in the room. That a lamp was burning at the time. That the deceased walked up to the dresser and took her hat off, and put it on the drdlser. That appellant went over to where his gun was, picked it up, backed back a few steps, breeched and unbreeehed the gun, and said to deceased, “You are always talking about killing me.” She said, “I wouldn’t hurt you for nothing, Eugene.” He said, “You are always talking about killing me.” She said, “No, Eugene, don’t shoot me; I wouldn’t hurt you for nothing.” And he said, “You are a damn lie,” and shot her in the left arm and left side, from which wounds she died a few hours later. That all the time from the time appellant picked up the gun on this occasion, while he was breeching and un-breeching it, and backed back a few steps, he was pointing the gun all the time at the deceased, and seemed to be a little mad.

It seems that the firing of the gun or the commotion at the time put out the light. Deceased, when shot, fell, and began holloeing and calling for Edna Cooper. Edna relighted the lamp, and, finding deceased shot, Bradshaw went off after a doctor, and told the police. He could not find a doctor; but the police at once went to the house where the killing occurred. Soon after, or about the time, the police got there the doctor arrived. In the meantime many of the neighbors, hearing the shooting and the commotion, hurriedly went over to the house. Numerous witnesses who first got there and the policemen testified that when they first got to the parties deceased had been put on the bed; appellant was standing or kneeling by her, or alternately, one or the other, and trying time and time again to get her to say she had shot herself; the deceased would never-say so; that the deceased would not tell the doctor, any of the policemen, or others present who had shot her, or how it had occurred, until repeatedly urged and pressed to do so; that appellant at first expressly denied that he had shot her. During the time appellant went out of the room somewhere. While he was absent deceased then told the police and those present that the appellant had shot her. They then had him come back in the room where she was. The substance of the testimony of the policemen then is that she again stated to appellant that he had shot her, and Mr. Harbour, one of the policemen, testified that when appellant was first called back in he said to deceased, “Honey you done it.” She replied, “Honey, you done it;” and he said, “No, I didn’t either.” She" said, “Yes, you did; you know you did.” He then said, “Yes, I did do it, but it was an accident; I taken the gun off of the bed and went to set it in the corner, and it went off and shot her.”

Appellant himself testified, in effect, denying that he had tried to get deceased to tell that she had shot herself, and he denied that he had denied shooting her, but claimed in his testimony on the trial that he had shot her accidently, that the gun went off when he was breeching or unbreeching it, and that he had* no intention of shooting or killing her. He did testify that when they came from the club that night and his wife was at the dresser she said, “I ought to kill you,” something about like that, and that reminded him of his gun. He denied the balance of the conversation between them as testified to by Bradshaw. He also in effect denied that he had any trouble or mistreated his wife at any time, and expressly denied the testimony of Mrs. Hayden. In fact his whole testimony and defense was an accidental shooting and killing.

We have carefully read and studied the evidence, and in our opinion negligent homi•cide was not raised, and the court did not err in refusing to submit such question to the jury.

By one of appellant’s bills of exceptions he objected to the testimony of said witness Ella Ware as to what she testified about his treatment of the deceased, claiming that the transactions and matters told about by her were too remote from the killing, and no relation or connection therewith was shown between those transactions and the killing, and such evidence was calculated to prejudice the jury against him, and such testimony would throw no light upon or illustrate his motive in the killing. We think this testimony was admissible of and within itself, but especially so in connection with the testimony of other witnesses showing practically a continuous ill treatment of her by him down to the very time of the killing. See section 1235, White’s" Ann. P. O.; and section 1074, subd. c. of his Ann. O. O. P.

By another bill he complains that the court erroneously permitted said witnesses Ella Ware and Gussie Perry to testify, because they had been present in the courtroom and heard the testimony of George Bradshaw after the rule had been invoked and enforced. The court, in allowing this bill, explained and qualified it by stating that the state’s attorney did not know that said witnesses knew anything about the case at the time the rule was invoked, but was advised that relatives of deceased were in court;' after court adjourned he then talked with them, and on the following morning had them sworn and placed under the rule; that the case had been on trial only one-half day; and they heard no other witness testify except Bradshaw. The law in such matters, as uniformly held by this court, gives the trial judge wide discretion in permitting a witness to testify under such circumstances, and will not reverse a case where he has thus used his discretion except in clear cases of abuse. Branch’s Crim. Law, § 881, and cases cited. We think, under the circumstances, the court did not improperly exercise his discretion in permitting these witnesses to testify.

By his only other bill he complains that the court erred in permitting the character of examination by the county attorney of the state’s witness said Bradshaw, in effect, that he asked him leading questions, and held a paper in front of him (the county attorney), and questioned the witness from said paper, representing that it was a written statement signed by the witness in the county attorney’s office three days after the shooting. The bill develops that the witness at that time did not remember or would not remember that he had told the county attorney that immediately before the shooting of the deceased by the appellant she told appellant “not to shoot her”; he then testified that she said not to hurt her. The court, in approving this bill, qualified and explained it by stating that the paper mentioned as being held before the county attorney while he was examining this witness was a statement made by said witness shortly after the killing, in which the witness made the statement that the deceased said to defendant, “Don’t shoot me.” The witness did not answer the question as indicated in the bill, but was recalled by the state on the day following his first appearance on the stand, when he testified without hesitation that deceased said to defendant, among other things, “Don’t shoot me.” As qualified by the court, this bill presents no error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

In submitting murder in the second degree to the jury for a finding, the court charged the jury: “Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, Eugene Cooper, in the county of McLennan and state of Texas, did, on or about the time alleged in the indictment, with a gun, and that the same was a deadly weapon, and one reasonably calculated and likely to produce death by the mode and manner of its use in a sudden passion, and not under circumstances which would reduce the killing to an accidental or excusable killing, did unlawfully and with implied malice shoot and thereby kill said Pearl Cooper, you will find him guilty of murder in the second degree, and assess his punishment at confinement in the penitentiary for any period that the jury may determine, provided it be for not less than five years.”

Then immediately followed it with the further charge: “Homicide is excusable when the death of a human being happens by accident or misfortune. Now, if you believe from the evidence that the defendant shot and killed the said Pearl Cooper, but if you further believe from the evidence that in the breeching, or unbreeching, or handling the gun with which the shooting, if any, was done said gun was accidentally discharged, thereby shooting and killing the said Pearl Cooper, or if you have a reasonable doubt thereof, then you will return a verdict of not guilty.” These charges correctly submitted the issues to the jury, and the court did not err in refusing appellant’s special charge No. 2, on the subject of excusable homicide by accident or misfortune, as the court’s charge had fully and substantially already so charged.

Under the state of the evidence in this case the court was not called upon to give appellant’s third special charge, requiring that, as the evidence introduced by both the state and the defendant as to his admissions and statements in which he stated that he shot and killed the deceased by accident, and did not intend to shoot and kill her, the state must show that his said statement was false; otherwise to acquit him. Besides, in submitting the case to the jury, as shown above, the court, in elfect, did so charge, and the jury could not have found the verdict it did without believing that his claimed accidental shooting pf deceased without intention to kill her was false.

The court in this case correctly defined murder in the first degree in accordance with the statute. He also fully defined express malice. In a separate paragraph he quoted the latter part of the definition of murder (article 1140, P. C.): “Mlurder is distinguishable from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide.” Then he charged on murder in the second degree as follows: “Malice is also a necessary ingredient of the offense of murder in the second degree. The distinguishing feature, however, so far as the element of malice is concerned, is that in murder in the first degree malice must be proved to the satisfaction of the jury, beyond a reasonable doubt, as an existing fact, while in murder in the second degree malice will be implied from the fact of an unlawful killing. Implied malice is that which the law infers from or imputes to certain acts, ■ however suddenly done. Thus, when the fact of an unlawful killing is established, and the facts do not establish express malice beyond a reasonable doubt, nor tend to mitigate, excuse, or justify the act, then the law implies malice, and the murder is in the second degree; and the law does not further define murder in the second degree than, if the killing is shown to be unlawful, and there is nothing in evidence on the one hand showing express malice, and on the other hand there is nothing in evidence that will reduce the killing below the grade of murder, then the law implies malice, and the homicide is murder in the second degree. The instrument or means by which a homicide is committed is to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death,, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears.”

Appellant complains of this part of the court’s charge wherein the court states “that in murder in the second degree malice will be implied from the fact of an unlawful killing,” claiming that this is not the law, and that such language should not have been used in the charge in this case.

In the recent case of Hicks, 163 S. W. —, from Caldwell county, not yet officially reported, in discussing this identical question, we said: “The definition of murder in the second degree, and how and when the law infers malice from an unlawful killing in exact accordance with the two paragraphs of the court’s charge above quoted, has been the established law of this state ever since we have had two degrees of murder. Judge White, in his Ann. P. G., in section 1257, after stating what is ipso facto murder of the first degree, says: ‘If, however, they do not establish murder committed in one of these modes, and do not show any justification, excuse, or mitigation for the homicide, the law implies the malice, and the murder is in the second degree’—citing McCoy v. State, 25 Tex) 33 [78 Am. Dec. 520]; Jordan v. State, 10 Tex. 479; Hamby v. State, 36 Tex. 523; Jones v. State, 13 Tex. 168 [62 Am. Dec. 550]; Atkinson v. State, 20 Tex. 522; Farrer v. State, 42 Tex. 265; Farrell v. State, 43 Tex. 503; Hill v. State, 11 Tex. App. 456; Ellison v. State, 12 Tex. App. 557; Neyland v. State, 13 Tex. App. 536; Martinez v. State, 30 Tex. App. 129 [16 S. W. 767, 28 Am. St. Rep. 895]; Childers v. State, 33 Tex. Cr. R. 509 [27 S. W. 133]; Baltrip v. State, 30 Tex. App. 545 [17 S. W. 1106]. Again, in section 1259, be says: ‘Implied malice is the essential characteristic of murder in the second degree. It is not a fact, but an inference or conclusion deducible from particular facts and circumstances judicially ascertained. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which show the existence of express malice, or which tend to mitigate, excuse^ or-justify the act, then the law implies malice, and the offense is murder in the second degree’ — citing Martinez v. State, supra; Harris v. State, 8 Tex. App. 90; Toonery v. State, 5 Tex. App. 163; Douglass v. State, 8 Tex. App. 520; Hubby v. State, 8 Tex. App. 597; Hill v. State, supra; Ellison v. State, supra; Neyland v. State, supra; Reynolds v. State, 14 Tex. App. 427; Turner v. State, 16 Tex. App. 378; Stanley v. State, 16 Tex. App. 492; Smith v. State, 19 Tex. App. 95; Hart v. State, 21 Tex. App. 163 [17 S'. W. 421]; Baltrip v. State, supra. This court, in Barton v. State, 53 Tex. Cr. R. 445 [111 S. W. 1042], expressly approved and commended as admirably presenting the law on the subject a charge of which the two paragraphs first above quoted are literally the same. Mr. Branch, in his Criminal Law, § 426, in the first subdivision on page 255, gives as a correct charge substantially the first paragraph above quoted, citing Douglass v. State, 8 Tex. App. 520, Neyland v. State, 13 Tex. App. 536, supra, and Gonzales v. State, 30 Tex. App. 224 [16 S. W. 978], and then follows with a literal copy of the second paragraph as the law on the subject, and cites Barton v. State, supra; McGrath v. State, 35 Tex. Cr. R. 423 [34 S. W. 127, 941]; Smith v. State, 45 Tex. Cr. R. 553 [78 S. W. 694]; Carson v. State, 57 Tex. Cr. R. 396 [123 S. W. 590, 136 Am. St. Rep. 981]; and Harris v. State, 8 Tex. App. 90.”

The charge of the court in this case was correct on this point and in accordance with the law, and appellant’s objections thereto present no error. Taking the charge as a whole, which must always be done, it was an admirable announcement of the law, and presents to the jury for a finding in accordance with the evidence in the case.

The evidence clearly was sufficient to sustain the verdict. No reversible error' is pointed out, and the judgment will be affirmed.


author: HARPER, J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    1. Criminal. Law (§ 1206) — Punishment — Indeterminate Sentence Law — Defect of Invalidity. '
    The indeterminate sentence law passed at the regular session of the 33d Legislature (Acts 33d Leg. e. 132) having been declared unconstitutional, accused, charged with murder alleged to have been committed October 1, 1901, for which he was placed on trial in July, Í913, was entitled as of right to have his punishment assessed by the jury, as provided by Code Cr. Proc. 1911, art. 750.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    2. Homicide (§ 313) — Degrees—Punishment.
    Where the law relating to murder as it existed in 1901, when the crime for which accused was placed on trial was committed, provided a different punishment for murder committed on express malice from that committed on implied malice, he was entitled to have the jury find whether the offense had been committed on express or implied malice, and to have his punishment assessed accordingly.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 671-675; Dec. Dig. § 313.]
    3. Homicide (§ 300) — Self-Defense — Instructions.
    In a prosecution for homicide, an instruction on self-defense requiring the jury to find affirmatively that, at the time defendant shot, he believed he had been actually assaulted and struck on the head with a hoe, and that he shot deceased in good faith, etc., in order to entitle him to rely on self-defense, was erroneous ; such defense being made out if the jury believed, or had a reasonable doubt, that such state of facts existed.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. jj§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Smith County; J. A. Bulloueh, Special Judge.
    William Johnson was convicted of murder, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The appellant in this case was indicted, charged with murder, at the fall term, 1901, of the district court of Smith county, alleging that on the 1st day of October, 1901, with malice aforethought, he did kill John Woods by shooting him with a pistol. He was not located nor arrested until in October, 1912, 11 years after the indictment was returned. He was not placed on trial until in July of this year, the verdict being returned on July 16, 1913; the jury returning the following verdict: “We, the jury, find the defendant guilty of murder,” assessing no punishment. The court, under this verdict, sentenced appellant to penal servitude in the penitentiary for any term of years not less than five nor longer than his natural life.

Appellant, at the time the charge was given, when the verdict was returned, and in the motion for a new trial, objected to the action of the court in his charge authorizing the return of this character of verdict, and to the action of the jury in returning a verdict in which no penalty is assessed, and ■ to the action of the court in itself assessing the punishment to be undergone by appellant. In the case of Ex parte Randell Marshall, 161 S. W. 112, recently decided, but not yet reported, we held the indeterminate sentence law, as passed by the regular session of the 33d Legislature (Acts 33d Leg. c. 132), void for the reasons stated in appellant’s sixth bill of exceptions; and, while in a number of other bills of exceptions appellant states a number of other reasons why he thinks the law void, we do not deem it necessary to discuss these other grounds. And, having held the first indeterminate sentence law void, appellant had the right, as contended by him in his third bill of exceptions, to have the jury and not the trial judge assess the punishment he should undergo for this violation of the law. Article 750 of the Code 'of Crim. Proc. (1911 Revision).

Again, appellant contends that, as he was charged with having committed an offense (murder) in 1901, when the laws of this state prescribed a different punishment for murder committed upon express malice from that committed upon implied malice, he had a right to have the jury determine whether if appellant was guilty of murder, he had committed it upon express malice or implied malice. As the law now in force assesses the same punishment for murder, whether committed upon express or implied malice, and the punishment may be more severe for murder committed upon implied malice than could have been inflicted when he is alleged to have committed the crime, then he had the right to have the jury determine whether or not the offense of murder was committed upon express or implied malice, and, if they determined it was committed upon implied malice, to have them instructed to inflict the punishment in accordance with the law in force at the time he is alleged to have committed the offense. This contention is the law of the state, and the court should Have so instructed the jury. Articles 15, 16, 17, and 18 of the Penal Code.

On the law of self-defense, in paragraph 12 of the charge, the court required the jury to find affirmatively that at the time he shot he believed “he had been actually assaulted and struck in the head with a hoe, and that he shot the deceased, in good faith, etc.” Then he would be justified in shooting deceased. The law of this state” does not authorize the court to instruct the jury that they must find that the defendant “acted in good faith,” under such circumstances, nor that they must find the facts affirmatively. The law is, if the jury believe or have a reasonable doubt that such state of facts may have existed, then the defendant would be entitled to act.

The other matters in the record before us need not be discussed, as they present no error, but, on account of the errors above referred to, the case is reversed and remanded.


author: PRENDERGAST, P. J.

text:
    COLLINS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge. Sarah Collins was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted for keeping a disorderly house under article 496, P. C., and her punishment fixed at a fine of $200 and 20 days in jail. There is no statement of facts or bills of exceptions, in the absence of which no question is raised that this court can consider. The judgment is therefore affirmed.


text:
    DAVILLO v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.' Pancho Davillo was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100 and imprisonment in jail for 6 months. The record contains neither a statement of facts nor any bill of exception. Under such circumstances, there is no ground stated in the motion for a new trial we can review. Affirmed.


text:
    HARDY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    Appeal from District Court, San Augustine County; A. E. Davis, Judge. Dorsey Hardy was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Upon an indictment for assault with intent to kill, appellant was convicted of aggravated assault, and his punishment fixed at a fine of $200 and 60 days’ confinement in jail. There is neither a statement of facts nor a bill of exception in the record. There is nothing raised by the motion for new trial that can be reviewed, in the absence of these. The judgment is affirmed.


text:
    HART v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Appeal from Wichita County Court; C. B. Felder, Judge. Lizzie Hart was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction, with the penalty prescribed by law inflicted, for keeping a disorderly house, appellant prosecutes an appeal. There is no statement of facts nor bills of exceptions in the record. Nothing is raised which can be considered in the absence of this. The judgment is affirmed.

DAVIDSON, J., absent.


author: .HARPER, J.

text:
    HOUSE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.)
    Appeal from Criminal District Court. Dallas County; W. L. Crawford, Judge. Charles House was convicted of manslaughter, and he appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   .HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at 4 years’ confinement in the state penitentiary. As the record contains no statement of facts, no question is presented which calls for a review of the action of the court. Affirmed.


text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge. Clarence Johnson was convicted of burglary, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Erom a conviction for burglary, appellant prosecutes this appeal, without any statement of facts or bills of exceptions. No question is attempted to be raised which we can consider in the absence of these. The judgment is therefore affirmed.


text:
    KYLE v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge. Mat Kyle was convicted of aggravated assault, and appeals.
    Affirmed.
    W. T. Potter, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault; his punishment being assessed. at a fine of $100 and 90 days’ imprisonment in the county jail. This record is before us without a statement of facts or bill of exceptions.' In that condition the record presents .no revisable matter. The judgment is affirmed.


text:
    ORTH v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Appeal from Wichita County Court; C. B. Felder, Judge. T. R. T. Orth was convicted of maintaining a house of prostitution, and appeals.
    Affirmed.
    •Charles C. Huff and Orville Buffington, both of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted under an indictment charging that he “was the owner of a house then and there situate, which said house he did then and there unlawfully keep, was concerned in keeping-, and knowingly permitted to be kept as a house for •the purpose of prostitution, and where prostitutes were permitted to resort and reside for the purposes of plying their vocation.” He was convicted, and his .punishment assessed at a fine of $200 and imprisonment in the county jail for 20 days. At the threshold we are met with the motion of the Assistant Attorney General to strike out the -bills of exception and statement of facts contained in the record, because they were not filed within the time prescribed by law. Appellant’s able counsel have filed a brief in which they earnestly insist we are wrong in the construction heretofore given to the acts of the Legislature governing these matters. Every contention of appellant is disposed of in the case of Durham v. State, 155 S. W. 222, and, as we see no reason to change our views in this matter, we respectfully refer to that opinion, and the motion of the Assistant Attorney General is sustained. See, also, De Friend v. State, 153 S. W. 881, and cases there cited. This of necessity disposes of all questions presented in the motion for a new trial, except the one wherein the sufficiency of the indictment is challenged. All questions raised by him were decided adversely to his contention in the cases of Willis v. State, 34 Tex. Cr. Rep. 148, 29 S. W. 787; Merrell v. State, 29 S. W. 41; Schulze v. State, 56 S. W. 918, and cases cited in these opinions. Affirmed.

DAVIDSON, J., absent.


text:
    WHITE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Appeal from Angelina County Court; E. B. Robb, Judge. Frank White was convicted of giving liquor to a minor, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction for giving liquor to a minor, appellant has appealed. No statement of facts is in the record. The judgment is therefore affirmed.

DAVIDSON, J., absent.


text:
    YOUNG v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Appeal from District Court, Jasper County; A. E. Davis, Judge. Will Young was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    See, also, 151 S. W. 1046.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant was convicted of an assault with intent to kill and murder, and his punishment fixed at 15 years’ confinement in the penitentiary. There is no statement of facts in the case. Neither is there any bill of exception. Nothing is raised by the motion for new trial that we can consider in the absence of a statement of facts. The judgment is therefore affirmed.


author: FLY, C. J.

text:
    SOUTHWESTERN GRAIN & SEED CO. v. BLUMBERG et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 10, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    Venue (§ 14) — Contracts—Breach.
    A contract for the sale of com for delivery
    on board cars in the county of the residence of the seller for transportation to another county binds the seller to perform in the county of his residence, and an action for his failure to deliver corn of the quantity contracted for must be brought in the county of his residence, though bills of lading with drafts attached, drawn by the seller on the buyer, were placed in a bank in that county and by it transmitted to the county of the residence of the buyer, and, where an action is brought in the county of the residence of the buyer, the seller may file a plea of privilege, and the cause must be transferred to the county of Ms residence.
    TEd. Note. — Eor other eases, see Venue, Gent. Dig. §§ 21, 27; Dec. Dig. § 14. J
    Appeal from Bexar County Court; John H. Clark, Judge.
    Action by the Southwestern Grain & Seed Company against R. E. Blumberg and another. Erom a judgment transferring the cause to another county for trial, plaintiff appeals.
    Affirmed, and motion for rehearing overruled.
    Wm. L. Schlesinger and Wicks & Boss-hardt, all of San Antonio, for appellant. Scott & Dodson, of San Antonio, for appellees.

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

   FLY, C. J.

This is a suit instituted by appellant against appellees, who reside in Guadalupe county, to recover damages alleged to have accrued from a failure to deliver to appellant corn of the quantity and grade contracted by appellees to be delivered. Appel-lees filed their plea of privilege, which was sustained by the court, and the cause was transferred to the county court of Guadalupe for trial.

The contract for the purchase of the corn was a verbal one, made through the medium of a telephone, but was confirmed by a letter written afterwards by appellants. The corn was to be delivered on board the cars at Seguin for shipment to El Paso, Tex. The bills of lading with drafts attached, drawn by appellees on appellants, were placed in a bank in Seguin and by it transmitted to a bank in San Antonio and were paid by appellants. The drafts were marked “paid” and with the bills of lading were delivered to appellants.

There was no contract in writing or otherwise to perform anything in Bexar county. The appellees live in Guadalupe county and agreed to put a certain quantity of corn on the cars in Guadalupe county, and drawing a draft on appellants in San Antonio was not a promise to do anything in Bexar county. Appellants have not sued on the drafts paid by them and have no cause of action on them, but their suit is based on the breach of a contract to deliver on the cars at Seguin a certain quantity of corn of a certain grade.

The judgment is affirmed.

On Motion for Rehearing.

The cases cited by appellant are not applicable to the facts of this case. Because a bill of lading is regarded as a quasi negotiable instrument, as held in Railway v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. .St. Rep. 861, would not constitute it a promise to deliver corn in Bexar county, which had been contracted to be delivered in Guadalupe county. The uncontradicted evidence showed that the corn was to be delivered in Se-guin, and sending the bill of lading to appellant in San Antonio did not destroy that contract.

In the case of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, the corn was to be delivered in the county in which the buyer resided, and of course the court held that, the contract being in writing and to be performed in the county of the buyer, the seller could be sued in that county. No such facts exist in this case.

If appellees had agreed to deliver the corn in Bexar county and had sent appellant, .through a bank, bills of lading with drafts attached, then this case could be brought within the scope of the decision in Callender v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, and Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399.

The facts in the cage of Planters’ Oil Co. v. Whitesboro Oil Co., 146 S. W. 225, might have applicability if appellees bad sued appellant for the price of the corn in Guadalupe county, as it might have been contended that there was no written contract to pay for the corn in that county, although it was to be delivered there.

In order for the bill of lading with draft attached to form a written agreement to perform the contract in Bexar county, it would be absolutely necessary for them to be based upon a contract to deliver the corn in Bexar county. No such agreement was made.

The motion is overruled.


author: HODGES, J.

text:
    HARRIS et al. v. WAGNON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1914.
    Rehearing Denied Jan. 8, 1914.)
    1. Appeal and Error (§ 1059) — Harmless Error — Erroneous Exclusion op Evidence.
    Where, in trespass to try title, defendant, relying' on adverse possession after his return to the premises in 1884, admitted that he left the premises in 1883 and resided in Oklahoma, but returned some time in 1884, and the crart charged that to _find adverse possession the jury must find continuous adverse possession for as much as ten years after the return in 1884, exclusion of evidence, that in 1883 or 1884 a deputy sheriff with a warrant for the arrest of defendant searched for him, but could not find him in the county, was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4208; Dec. Dig. § 1059.]
    2. Evidence (§ 273) — Declarations of Tenants — Admissibility as Against Landlord.
    Declarations of tenants as to the character of title under which they held were not binding on one claiming title under adverse possession through the tenants, especially where the declarations were made after the expiration of the ten years from the commencement of adverse possession.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.]
    3. Appeal and Error (§ 1097) —Law op the Case.
    Assignments of error determined on a former appeal of the case adversely to appellant taking a second appeal will not be considered in detail and will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4358 — 4368, 4427; Dec. Dig. § 1097.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by John W. Harris and another against C. J. Wagnon and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    See, also, 148 S. W. 606.
    Lane & Lane, of Marshall, for appellant. Beard & Davidson, of Marshall, for appellee.

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

   HODGES, J.

The appellants instituted this suit in the form of an action of trespass to try title, and sought to recover from the ap-pellees a tract of land consisting of 160 acres situated in the Morton headright, Harrison county, Tex. The land is specifically described in the petition by metes and bounds. The appellee Wagnon disclaimed any right in the premises .except as a tenant of the appellees-Sidney and E. H. Jones. Sidney and E. I-I. Jones answered by a plea of not guilty and the statute of limitation of ten years. It is-conceded that the facts show that the appellants are entitled to recover, unless their claim is barred by the adverse possession of E. H. Jones prior to the institution of the suit. The facts show that E. H. Jones originally went into possession of the land about 1875. He subsequently left it, but returned in 1883. Some time during the latter year he left again, and returned in 1884. He claims that his possession was adverse and continuous from that time up until this suit was filed.

The first assignment' of error complains of the refusal of the court to permit the appellants to prove by a witness, A. S. Curtis, that in 1883 or 1884 witness was a deputy sheriff of Harrison county, and, as such, made search' for E. H. Jones during that time, but that Jones could not be found; that some time during those years he went to tim-bóme of Jones, made search for him, but failed to find him; that he had at the time a warrant for the arrest of Jones charging him. with murder or cattle theft. The only purpose for which this testimony could have-been used was to negative the fact that Jones was in possession of the land at the time referred to. Whatever error there may have been in excluding this testimony was rendered harmless, because Jones admitted that he left the premises about that time, resided' in Oklahoma, and returned some time in 1884. In his instructions to the jury, the court required them to find that Jones had-been in continuous adverse possession for as much as ten years after his return to the premises in 1884.

It is also complained that the court refused to give certain special charges with reference to the legal effect of statements made by tenants of Jones regarding their possession, aná as to the nature of their tenure of the premises. There was no error in refusing these charges, for more than one reason. In the first place, the declarations of the tenants-as to the character of title under which they held would not be binding upon Jones, the-adverse claimant; and, in the next place, those declarations occurred after more than ten years had elapsed, dating from the time designated by the court in his instructions.

Most of the remaining assignments of error refer to issues that were involved in the former appeal of this case, and were then, determined adversely to the appellants. Harris v. Wagnon, 148 S. W. 606. It is unnecessary to now treat them in detail.

The judgment of the district court is affirmed.


author: MOURSUND, J.

text:
    DUBOSE et al v. WOODS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1913.)
    1. Mandamus (§ 148) — Pasties Plaintiff-Private Persons.
    Resident citizens of Dunn county, who are qualified voters and owners of real and personal property therein, have sufficient interest to apply for mandamus to compel the commissioners’ court of Duval county to perform the duty of dividing the new county of Dunn into commissioner’s, justice’s, and voting precincts imposed upon that court by the act creating Dunn county in the manner provided for therein.
    [Ed. Note. — Eor other cases, see Mandamus, Cent. Dig. § 289; Dec. Dig. § 148.]
    2. Counties (§ 18) — Creation of New County — Division into Precincts.
    Under the act creating Dunn county (Acts 33d Leg. fist Called Sess.] c. 35) and requiring the commissioners’ court of Duval county to divide the new county into four convenient precincts for the election of county commissioners and not less than four convenient précincts for the election of justices of the peace and constables and to designate convenient polling places, the division of the county into four commissioners’ precincts, which were also designated as justices’ and voting precincts, containing, respectively, 250,000, 41,000, 39,000, and 200,000 acres and 500, 70, 50, and 20 voters, one of which precincts contained two and a large part of the third of the three largest towns in the county thus depriving two of such towns of the polling places which they had had for 30 years and requiring the people of such towns to travel long distances to the polling place and justice’s court, was so manifestly wrong that the holding of an election in the precincts so provided for the purpose of completing the organization of such county would be enjoined.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 17, 18; Dee. Dig. § 18.]
    3. Counties (§ 18) — Precincts.
    The voting precincts of a new county should be so established as to embrace only territory situated in one commissioner’s precinct and one justice’s precinct in order that the vote for precinct officers may be determined.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 17, 18; Dec. Dig. § 18.]
    Appeal from District Court, Duval County; W. B. Hopkins, Judge.
    Suit by T. M. Dubose and others against S. H. Woods and others. From an order refusing a temporary injunction, plaintiffs appeal.
    Reversed and remanded.
    Dougherty & Dougherty, of Beeville, and Terrell, Walthall & Terrell, of San Antono, for appellants. Hicks, Hicks & Teagarden, of San Antonio, for appellees.

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

   MOURSUND, J.

This is an appeal from an order made in vacation by Hon. W. B. Hopkins, district judge of the Twenty-Eighth judicial district of Texas, refusing to grant, upon sworn petition by appellants, who are residents and qualified voters of Dunn county, and owners of real and personal property situated therein, a temporary injunction restraining appellees, O. G. Allen, N. E. Martinez, J. C. Wall, and H. D. Roach, from holding an election on December 23, 1913, for the election of officers, and the location of the county seat, of Dunn county, and restraining S. H. Woods, county judge of Duval county, J. W. Shaw, A. Parr, E. Carrillo, and J. M. Corkhill, county commissioners of Du-val county, and their successors in office, from appointing other presiding officers for the holding of said election, and the said S. H. Woods from preparing, or causing to bei prepared, ballots for said election and from issuing any election supplies to said election officers.

Plaintiffs allege in substance: That by act of the Legislature the commissioners’ court of Duval county was directed to complete the organization of Dunn county, to divide said county into four convenient precincts for the election of county commissioners and not less than four convenient precincts for the election of justices of the peace, and also to designate convenient places in said county where elections shall be held and to order an election to be held for the election of county and precinct officers and for the selection of a county seat, to appoint presiding officers to hold the. election, and it was further provided that said new county shall defray all expenses of perfecting its organization; that said county judge and county commissioners, acting as the commissioners’ court of Duval county, divided Dunn county into four parcels, each of which was to be a commissioner’s precinct, a justice’s precinct, and a voting precinct; a copy of the field notes and a plat showing the precincts so created being attached to the petition.

It is further alleged: That the division so made was arbitrary, unfair, unjust, and unlawful ; the various reasons being set out with great particularity, but for the sake of brevity we will only briefly state the substance thereof. The acreage, population, and number of voters in each district are approximated as follows: Precinct No. 1, 250,000 acres, 4,000 inhabitants, of whom 500 are voters; precinct No. 2, 41,000 acres, 350 inhabitants, of whom 70 are voters; precinct No. 3, 39,000 acres, 300 inhabitants, of whom 50 are voters; precinct No. 4, 200,000 acres, 120 inhabitants, of whom 20 are voters. Less than 150 voters will elect three of the county commissioners, while 500 voters will elect the other commissioner, by reason of which fact the government of the county will be taken away from a majority of the voters, and not more than one-third of the voters will have convenient access to the polls. The mileage of public roads is approximately as follows: Precinct No. 1, 125 miles; No. 2, 17 miles; No. 3, 16 miles; and No. 4, 15 miles. Precinct No. 1 is about 26 miles long by 15 wide; No. 2 is about 10 miles long and 7 miles wide; No. 3, about 9 miles long by 7 miles wide; and No. 4, about 24 miles long by 12 in width. That said precincts have been established without regard to symmetry or public convenience. When considered as justices’ precincts, they are created without regard to the rights or conveniences of the public, because in precinct No. 1 there are two towns and part of a third, and litigants will be compelled to travel in many instances at least 26 miles to attend justice’s court because said towns are widely distant from each.other, and necessarily the court will be held in one of said towns. That; in establishing said precincts as the only election precincts, the commissioners’ court flagrantly abused their discretion in order to promote their own interests (three of them being alleged to reside in Dunn county) to secure the selection of the town of Benavides as the county seat by imposing such difficulties upon plaintiffs and other voters, in the exercise of their right of suffrage, as will deter plaintiffs and many other qualified voters from attending such election and voting therein by reason of the expense, inconvenience, and loss of time incident to their participation in such election upon the date fixed for holding the same. That the establishment of said precincts as the sole voting precincts is violative of the constitutional and statutory rights of plaintiffs and other voters, guaranteeing them the exercise of a free suffrage, and would invalidate the election to be held, because a great many voters would be deterred and prevented from attending and participating in the same. Plaintiff Dubose resides near the town of Realitos, which contains about 360 people, and about 600 people reside adjacent to said town. That said town is within five miles of the geographical center of D'unn county and is a competing candidate with Benavides for the location of the county seat. That said town is deprived of a polling place, a right and privilege it has enjoyed for 30 years. That the greater number of the voters of said town and residing adjacent thereto are poor and can ill afford to go to the town of Benavides, designated as- the polling place of precinct No. 1, to east their vote at said election on account of the great inconvenience attendant thereon. That there is only one train a day between the two towns, and the wagon roads are bad, wherefore the voters wall be at great expense and inconvenience in going to Benavides to vote. In addition-a great many of the voters of the county are illiterate and by reason of that fact, in connection with the large number of voters in said precinct, the voters” vrill be subjected to further delays and inconvenience. Plaintiff Perez resides at Concepcion, a town of about 600 inhabitants and 160 voters, which town has had a polling place for 30 years. That the line between precincts 1 and 2 runs down the main street of said town, placing about one-fourth of the inhabitants in precinct No. 2 and the remainder, including Perez, in precinct No. 1. In precinct No. 2, a hamlet called Mazatlan, containing approximately 60 inhabitants and situated about four or , five miles from Concepcion, has been designated as a polling place. Those voters of Concepcion placed in precinct No. 1 are compelled to travel to Benavides, a distance of about 20 miles, without railroad facilities, and thereby subjected to like inconvenience and expense as those of Realitos. That this was done for the purpose of deterring Perez and many other qualified voters who favor Realitos as the county seat from participating in the election, and, whether done for said corrupt purpose or not, said division has been made in a manner so regardless of the convenience of plaintiffs and other citizens of Dunn county as to be violative of the act creating the county, and an abuse of the discretion of the commissioners’ court of Duval county. That the district court will not be held in Duval county until subsequent to the date set for the election in Dunn county, and, unless the defendants are restrained from holding the election, plaintiffs and many other citizens and qualified voters of Dunn county will suffer irreparable injury, and they have no adequate remedy at law to prevent the same. It is also alleged that, if officers are elected for the precincts as laid out, the commissioners so elected will levy taxes, incur obligations, and assess the property of plaintiffs and other citizens, and that the fees of the election officers and the other costs incident to holding the election will become a charge upon Dunn county, and the property of plaintiffs and of other citizens will be liable therefor. Plaintiffs prayed for a temporary injunction, and upon trial that the orders districting the county be reviewed and declared void, and the officers perpetually enjoined from holding any election in said precincts, and for a writ of mandamus directing the said commissioners and county judge to make subdivision of Dunn county into precincts in the manner prescribed by the law creating the county.

Conclusions of Daw.

Under article 5, § 8, of the Constitution of the state of Texas, as amended in 1891, the district court has general supervisory control over the commissioners’ courts, with such exceptions and under such regulations as may be prescribed by law, and general original jurisdiction over all causes of action whatever for which a remedy is not provided.

The Legislature, in article 1706 (Statutes of 1911), recognizes the jurisdiction as expressed in the Constitution with reference to supervisory control of commissioners’ courts and has made no exception that would destroy the jurisdiction of the district court to supervise the proceedings of a commissioners’ court in dividing a newly created county into convenient districts.

Article 4643, Revised Statutes 1911, authorizes the district judge to issue injunctions in a pending cause, when it appears that some act may be done -which, would tend to render the judgment ineffectual.

Plaintiffs being resident citizens of Dunn county, qualified voters and owners of real and personal property therein situated have sufficient interest to apply for mandamus to compel the commissioners’ court of Duval county to perform the duty imposed upon said court by the act creating Dunn county, in the manner provided for in said act. McLaughlin v. Smith, 140 S. W. 249; same case, 105 Tex. 330, 148 S. W. 288.

The act of the Legislature creating Dunn county (Gen. & Sp. Laws of Texas 1913, c. 35) makes it the duty of the commissioners’ court of Duval county to lay off and divide said new county into four convenient precincts for the election of county commissioners and not less than four convenient precincts for the election of justices of the peace and constables, and to designate convenient places in said new county where elections shall be held. The facts alleged in the sworn petition show conclusively that as to neither class of precincts is the division of the county one which is convenient to the people of said county, and in fact such division is so arbitrary and wrong that the courts should not for a moment tolerate the same. It is true that the appellees were given no opportunity by the district judge to answer. Our statute permits the court to refuse or grant a temporary injunction without notice, and naturally emergencies arise in which it becomes necessary to act at once. In this case the judge doubtless failed to give appel-lees notice because of the shortness of the time, and, while believing that appellants could not maintain the suit, doubtless did not wish to jeopardize their appeal by giving notice and setting the case down for a hearing when the orders made by the commissioners’ court speak for themselves, and no excuses or reasons could alter the facts disclosed by the orders entered, nor could denial be made of the existence and location of the different towns situated in the new county. Whether from failure of due consideration or willfully, the districts have not been established with any regard to the convenience of a very large part of the population. When considered as commissioners’ precincts, it is manifest that wrong was committed in making the districts largely disproportionate as to acreage and population. After the four commissioners’ precincts have been established in a fair manner, it is necessary to establish not less than four justices’ precincts, and we cannot conceive of convenient justices’ precincts being established which will not place each of the three most important towns in a justice’s precinct. Nor can we conceive of any division into voting precincts being fair which fails to create a voting place in each of said towns, as well as such other voting places as may be necessary to enable the voters to participate in an election without unreasonable inconvenience and expense. To deprive the people of Kea-litos and Concepcion of the right to have a voting place, a privilege they have enjoyéd for 30 years, is so unjust and unreasonable, in view of the fact that said towns are two out of the three largest in the county, that it contravenes all ideas of fair play and presents a situation which should not be tolerated in a country recognizing the right of free suffrage and equal rights. It is recited in the emergency clause of the act creating Dunn county that an imperative public necessity exists for the act to take effect from and after its passage because of the great inconvenience to which the people are subjected, who live in the territory composing the new county, in being compelled to travel extraordinary distances to attend to their public and private business at the county seat. Yet probably half of said people, as the voting districts were established by the commissioners’ court of Duval county, would be compelled to go long distances in order to vote, whereas formerly they had voting places in their midst.

As voting precincts should be so established as to only embrace territory situated in one commissioner’s precinct and one justice’s precinct, in order that the vote for precinct officers may be determined, and as each of the towns should, for the convenience of its citizens and those residing in the vicinity, have a justice’s court, it appears to us that the districting into convenient districts would be greatly facilitated if the commissioners’ precincts should be so established as to throw the three largest towns into separate commissioners’ precincts. However, we have no power, nor has the district court, to make the districts, as the commissioners’ court has a discretion in the matter which will not be interfered with by the courts when exercised in a reasonable and fair manner. But until the division of the county into precincts is accomplished in a reasonably fair and just manner, with due regard to the convenience of the people, the courts will not hesitate to grant relief.

We are of the opinion that the petition states a cause of action entitling plaintiffs to the temporary injunction refused by the trial court, and therefore the order refusing the same is reversed, and the cause remanded, with instructions to the district judge to forthwith enter an order granting plaintiffs the temporary injunction prayed for by them. In support of our conclusion that the election should be enjoined, we cite, in addition to the citations already made, the following cases: Oden v. Barbee, 103 Tex. 449, 129 S. W. 602; Solomon v. Fleming, 34 Neb. 40, 51 N. W. 304; Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808; Joyce on Injunctions, § 1386.

In order that the status quo of the controversy might not be changed into an election contest' and complicated by actions of officers wbo might be elected at the election ordered to be held on December 23, 1913, which election would have been held before a mandate could issue in this case, this court, in aid of its jurisdiction, on December 17th entered a temporary restraining order, which is in all things to remain in full force and effect until the issuance of the mandate of this court.

The judgment is reversed, and the cause remanded.


author: SPEER, J.

text:
    STATE DIVISION, LONE STAR INS. UNION, v. BLASSENGAME.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 22, 1913.)
    1. Insurance (§ 819 ) — Action on Certificate — Sufficiency of Evidence — Notice of Assessment.
    Evidence, in an action upon a fraternal beneficiary certificate, where defendant set up a forfeiture for nonpayment of assessments, and where plaintiff alleged that no notices of the assessments were mailed, A eld to sustain a finding that notices of such assessments were not mailed at such time as to justify a forfeiture prior to the time those assessments were actually tendered, three days before the member’s death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    2. Evidence (§ 71) — Presumption—Receipt of Matter Mailed.
    Notices of assessments, if mailed, would be presumed to have been received.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 92; Dee. Dig. § 71.]
    3. Insurance (§ 818) — Mutual Benefit Associations — Notice of Assessment — Evidence.
    In an action on a fraternal beneficiary certificate, defended on the ground of forfeiture by failure to pay certain assessments, and in which plaintiff claimed that no notices thereof were received, evidence that other members of the association had received notices mailed at the time plaintiff’s notice was alleged to have been mailed, and had paid their assessments promptly, was inadmissible, as tending to multiply the issues by inquiring into collateral matters.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 2003-2005; Dec. Dig. § 818.]
    4. Insurance (§ 826) — Fraternal Beneficiary Association — Action — Instructions.
    In an action on a benefit certificate, where there was no contention that the notices .of assessments were or could have been mailed at any other time than that claimed by defendant, an instruction that the burden of proof was upon the defendant to show that notices were mailed at that time was not objectionable, on the ground that it was sufficient'if the notices were mailed at such a time as to afford insured 15 days prior to her death in which to. pay the assessments.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §■ 2010; Dec. Dig. § 826.]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Action by H. C. Blassengame against the State Division, Lone Star Insurance Union.
    Judgment for plaintiff, and defendant appeals. Affirmed.
    Moore & Park, of Paris, and Walker & Baker, of Cleburne, for appellant. R. S. Phillips and H. P. Brown, both of Cleburne, for appellee.

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

   SPEER, J.

H. C. Blassengame instituted this suit against the State Division of the Lone Star Insurance Union of Paris, Tex., on a certificate of insurance upon the life of Mrs. Lizzie Blassengame, wife of the plaintiff, and on findings of a jury on special issues submitted to them recovered a judgment for $997.80. The defendant is a fraternal beneficiary insurance company, incorporated under the laws of this state operating on the mutual assessment plan, and the defense relied on was the failure of the insured to pay certain assessments known as assessments Nos. 47 and 48. The defendant company appeals.

Following are the material issues submitted to the jury, together with the answers given thereto, to wit:

“X. Were assessments Nos. 47 and 48 levied and called for as required by the by-laws of the defendant? Answer: No.
“2. Was the notice of assessment No. 47 mailed at Paris to Mrs. Lizzie Blassengame on January 1, 1912? Answer: No.
“3. Was the notice of assessment No. 48 mailed at Paris to Mrs. Lizzie Blassengame on February 3,1912? Answer: No.
“4. Was notice of assessment No. 48 mailed at Paris, Tex., 15 days before the tender made to Allard at Cleburne, Tex.? Answer: No.
“5. Did M. P. Allard make an agreement with plaintiff that he would pay assessments as called for, and charge the same to plaintiff? Answer: Yes.
“6. Did M. P. Allard notify the plaintiff that he could not charge his account with assessment No. 47 before or after the 15th day of January, 1912? Answer: About January 20 th.
“7. Did the plaintiff, or any one for him, offer to pay to the agent of the defendant at Cleburne assessments Nos. 47 and 48; if so, on what date? Answer: Yes, on or about March 2, 1912.”

M. P. Allard was the agent of appellant at Cleburne, Tex., where appellee’s wife’s membership was, and it is admitted that assessments Nos. 47 and 48 were never paid. The questions submitted indicate the issues arising under the pleadings. The main question to be decided, and the one which in our judgment disposes of the appeal, is whether or not the evidence supports the verdict to the effect that no notices of assessments Nos. 47 and 48 were mailed to Sirs. Lizzie Blas-^ sengame at such a time as to justify the forfeiture of her membership prior to the time she actually tendered these payments, which was three days prior to her death. Section 7 of the by-laws of appellant order, which constitute a part of the contract of insurance, provides that when the secretary of the ■order receives notice of the death of a member he “shall at once send out notice of such death to the members of the class or division of which the deceased was a member and call for the sum of $1.10 from each member of said class ás a new advanced assessment to be paid,” etc. While section 9 provides: “Any member failing to pay any part of the assessments and annual dues provided for in these by-laws within 15 days after mailing of notice thereof, shall thereby forfeit membership and shall be dropped from the class or ■division of which he or she is a member and from the union.” Section 16 is: “Each member shall notify the home office of any change of address. If a notice of assessment is left at or mailed to the last given or known address of the member, it shall be sufficient notice to the member.”

Worth Duncan, the secretary and manager of appellant, testified that on January 1, 1912, assessment No. 47 was duly levied, and on the same day cards calling for the paynlent of this assessment were mailed to all the members, including deceased, Mrs. Blassengame; that on February 3, 1912, assessment No. 48 was duly levied, and printed notices mailed to each member, including the deceased, on that date. He identified in ■evidence cards used for these assessments •calling on members to pay within 15' days •the amount of the assessments, and testified that these were similar to the cards mailed to Mrs. Blassengame. The witness did not personally prepare these notices, or address or mail them to the deceased, but they, along with all others to members of her class, were addressed by means of an ad-dressograph, a large metal machine weighing about 1,000 pounds, holding metal plates upon which were the names of the individual members. He testified the name of Mrs. Blassengame was on the plates in the machine, and told in detail how the work of addressing the cards was done. The books of the company showed that the addressed -cards were cheeked off by the lists of members, and that the cards were then in lots of 500 returned to the original boxes in which they were purchased from the post office, and then delivered to the clerks or postal authorities in said boxes to be deposited in the mail; that is, when the mail carrier came around for the mail these cards were -delivered to him for the purpose of being transmitted through the mails. The witness did not undertake to swear that the particular cards were mailed, further than to detail the above circumstances with inference to the method of doing the work. Appel-lee testified that he did not receive the original notification card of assessment No. 47 at all, but that he received a second notice of this assessment together with the original notice of assessment No. 48, two or three days prior to the death of his wife. He did not produce the notices received, but testified that they had been lost. This testimony, we think, not only raised the issue as to the mailing of such notices within the by-laws, but also supports the verdict of the jury, finding that such notices were in fact not mailed at the times indicated. The testimony relied on by appellant is wholly circumstantial, while the appellee testifies positively he did not receive the notices. While appellee is an interested witness, appellant’s secretary-manager, who it seems had charge of the supervision of the mailing of these notices, was likewise interested. Under the by-laws appellant was entitled to forfeit the membership of the deceased if h&r payments were not made within 15 days after mailing out notices of assessments, whether such notices were actually transmitted through the mails and received by her or not, but appellee’s denial that the notices were received 15 days before the attempted forfeiture undoubtedly would authorize the inference that they were never mailed, for the presumption is, if they had been mailed, they would have been received.

At this point we may as well dispose of the assignments complaining that the court erred in refusing to admit testimony that other members of appellant company, at Cleburne, Tex., had promptly received notices of assessments Nos. 47 and 48, bearing the postmark at Paris, Tex., as of the date testified to by its secretary, Duncan, and of the local representative, Allard, to the effect that all members at Cleburne, other than the deceased, immediately after those dates on which the home secretary had mailed out the notices, and within 15 days therefrom, more than 194 members, paid these assessments, and that he immediately entered on the stubs of his receipt book the time of such payments and the names of the persons making the same. This testimony, it is insisted, was admissible as so many circumstances corroborating the testimony of Worth Duncan that the notices to Mrs. Blassengame had been mailed. We think, however, the court committed no error in excluding it. While its tendency undoubtedly would be in the direction contended for, yet under well-established rules of evidence forbidding the multiplication of issues by inquiring into collateral matters, the court properly excluded the same. We do not think the fact that other local members re-received timely notices of their assessments is any legal evidence that appellant company also mailed notices to the deceased.

The court instructed the jury that the burden of proof was upon the defendant to establish the fact that the notices were mailed at Paris, Tex., at the time claimed by the defendant. This instruction is criticised because it is contended that it was sufficient if the notices were mailed, not necessarily at the time claimed, but yet at such a time previous to her death as to afford her 15 days in which to pay the assessments. This distinction amounts to nothing, in view of the testimony, since there is no contention that the notices were, or could have been, mailed at any other time than that stated by the home secretary, which corresponded to the dates claimed by the defendant.

The complaint as to the submission of issue No. 5 becomes unimportant, since the determination of the other matters already discussed necessarily result in the affirmance of the judgment. •

There is no error in'the judgment and it is affirmed.


author: RASBURY, J.

text:
    BYRNE v. JACOBS.
    (Court of Civil Appeals of Texas.
    Dec. 13, 1913.
    Rehearing Denied Jan. 3, 1914.)
    1. Brokers (§ 65) — Commissions — Acting non Both Babties.
    Where a landowner listed his property with plaintiff and defendant, who were then partners, and defendant agreed to pay plaintiff a commission if he could induce the landowner to accept a reduction of the price, so that he could purchase the land for himself, plaintiff, having induced the landowner to make the reduction,- is entitled to his commission; it not appearing that he was occupying the inconsistent position of representing both parties, for the only claim was made against defendant, and the landowner had not agreed to pay a commission in case the sale was made to a member of the firm.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    2. Bkokebs ’(§ 65) — Compensation — Right to.
    Where a real estate broker disclosed to the seller that he was also representing the purchaser, there was no breach of confidence precluding him from recovering a commission from the purchaser.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 48-50; Dec. Dig. § 65.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by Tom Jacobs against D. O. Byrne. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Huffmaster & Huffmaster, of Kaufman, for appellant. Woods & Morrow, of Kaufman, for appellee.

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

   RASBURY, J.

Appellee sued appellant in the court below for $500 for services as a real estate agent in procuring one Hunt to sell appellant a tract of land on terms satisfactory to appellant, and secured v.erdict and judgment. Appellee testified that appellant agreed to pay him $500 if he could induce Hunt to convey the land on terms acceptable to appellant; that he did so, and that Hunt did convey the land. Appellant denied the contract in toto. Hunt, the owner of the land, also testified that appellee rendered no service in inducing him to sell to appellant on the terms he did sell. A number of witnesses testified that appellee’s reputation for truth and veracity was bad. Other witnesses were introduced who directly and circumstantially corroborated both appellant and appellee. It was also shown upon trial, and is not disputed, that appellant and appellee were partners engaged in selling real estate for the owners thereof, and that the land which Hunt sold to appellant had been listed by Hunt with appellant and appellee for sale to any customer which they might find for the sum of $30,000, and that Hunt sold to appellant for $27,000, less than the amount fixed by Hunt when listed with appellant and appellee. Hunt knew at all times before selling to Byrne that it was for his own use that Byrne was seeking the land.

On this appeal appellant, under his only assignment of error, presents but one proposition, which is in effect that appellee was not entitled to recover, for the reason that he represented Hunt in the sale of the land and Byrne in the purchase, whose interests were conflicting. This court held, in Brand v. Odom, 156 S. W. 547, that it was the general rule that agents could not recover fees or commissions for services in effecting sales or exchange of lands, or for performing other like services, when acting for both parties for the reason that such dual capacity was opposed to public policy, in that it subjected the agent to the direct inducement to violate confidences conflicting in interest. The evidence in this ease, however, falls short of bringing appellee within the rule. While Hkmt had listed his property with appellant and appellee for sale to other parties, and had agreed to pay commissions in case of sale, it is undisputed that he at no time agreed to pay appellee any sum as commissions in case of sale to Byrne, nor is any claim made that he did so. Thus, as to Hunt, it will be seen that the evidence entirely fails to show any conflict in the interests of Hunt, the owner, and Byrne, the purchaser. In truth the very fact that appellee asserts his claim for commissions solely against appellant lifts the case out of the rule. Further, it is not disputed, and, if it was, the jury found, that Hunt knew when dealing with appellant and appellee that appellant was attempting to buy the land for himself and brother, and that appellee was trying to induce the sale to appellant, and hence all concerned had full knowledge of the exact situation, and no relation of confidence existed which could have been violated in order to make the rule applicable.

The judgment is affirmed.