text:
    EARNEST v. STATE.
    (No. 4927.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Abortion <&wkey;9 — Evidence — Immateriality.
    In a prosecution for abortion, the victim’s testimony on direct examination that certain medicines had been procured from a doctor other than defendant was immaterial.
    2. Witnesses <&wkey;268(l) — Cross-Examination.
    In a prosecution for abortion, the theory of the state being that certain money obtained by the victim was to pay defendant doctor, while defendant sought to show that the money was obtained that the victim and her lover might go to Nevada, each to secure divorce and then remarry, cross-examination of the victim as to whether it was not true that she got the money without her aunt’s consent from a bank to go off with her lover, etc., was proper.
    3. Criminal Law t&wkey;762(l) — Trial — Evidence-Expression op Opinion by Judge.
    In such prosecution, the trial court violated statute in expressing before the jury his opinion with reference to such testimony; such expression of opinion being violative of the statute.
    4. Witnesses <&wkey;255(8) — Examination — Refreshing Memory.
    In a prosecution for abortion, where defendant placed on the stand the judge who tried a prior criminal case in which the victim testified with reference to certain matters covered by her present testimony, the court erred in refusing to let the witness identify or establish a statement of facts in the prior case, or to permit him to refer to it in any manner as a statement of facts, so as to refresh his memory, simply because the statement was not made up until two weeks after the trial of the prior case.
    5. Criminal Law &wkey;>361(l) — Evidence — Prior Testimony.
    If defendant introduced isolated portions of a witness’. examining_ trial testimony as impeachment or in contradiction of her testimony on the final trial, the state had the right to introduce such portions of her examining trial testimony as were explanatory of those put in evidence by defendant; but such portion of the examining trial testimony as did not throw light on those introduced by defendant would not be admissible, since, where one party introduces a fact favorable to himself and adverse to the opposing party, the opposing party may meet it by such testimony as is legitimate and explanatory on his side as against that introduced in the first instance.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    T. J. Earnest was convicted of abortion, and be appeals.
    Reversed, and cause remanded.
    Scott & Brelsford, of Eastland, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of tbe crime of abortion, bis punishment being assessed at two years’ confinement in tbe penitentiary.

The theory of tbe state was that a party named I-Iammett bad bad illicit relations with a girl named Lillie Hirt by which she became pregnant; that Hammett and tbe girl went to Ranger to see appellant, who was a physician, with a view of having an abortion committed upon her under the theory that she was pregnant. There was an issue as to whether she was pregnant or not, and an issue as to whether there was an abortion. The evidence tends strongly to show that it was a case of suppressed menstruation. The evidence fails to disclose that a foetus was discovered as a result of an abortion or attempted abortion. The girl upon whom the abortion is alleged to have been committed did not show that she was delivered of a foetus. If a foetus, it was only to be arrived at by the circumstances. Her testimony does show that the doctor performed an operation, and that there was effusion of blood resulting from the operation. Appellant, testifying in his own behalf, stated that there was no foe-tus, and that he did not operate on the girl with a view of committing an abortion; that he did operate on her for gonorrhoea. The girl testified that she had had intercourse with Hammett, and that such illicit relations were procured by herself and looked to a divorce between Hammett and his wife, and a subsequent marriage of herself to Hammett, and that Hammett was to leave Texas and go to the state of Nevada with a view of procuring the divorce, and that thereafter they were to be married.

A bill recites that, while the girl was testifying on her direct examination, she testified that certain medicines had been procured from Dr. Miller by Hammett. This did not involve appellant directly or indirectly, and the statement of Hammett with reference to Dr. Miller, or any medicine he may have procured from Dr. Miller, should not in any way be binding upon appellant. Dr. Miller was not upon trial, and was in no way connected with the transaction set out in the indictment.

Another bill recites that while Lillie Hirt was testifying, appellant, on her cross-examination, propounded this question:

“Isn’t it true that you got $500 without your aunt’s consent from the bank at Baird for the purpose of going off with Hammett, and that you trumped up this prosecution and claimed that he had misled you, and had taken your money to procure a criminal abortion, in order to conceal the real scheme and plan that you and Hammett had?”

At this point counsel was stopped by the court, and the witness informed that she need not answer, and the court then asked witness how much schooling she had had, and, when witness replied three years, the court stated in the presence of the jury, “She does not understand all of those big words.” Appellant objected to the court refusing to permit the girl to testify because it was testimony on a point highly material in order to show the motive of the witness, and further objected to the cross-examination of the witness by the court, as follows:

“Q. Do you know what is meant by ‘trumped up,’ that is to hide what you were doing? A. Hammett, he kept on; he said he would go off and get a divorce — go to Nevada. I got the money to pay Earnest because he said he did not have any. I got it for Hammett to pay Earnest.”

Objection was also urged to this conduct on the part of the court. The court qualifies this bill by stating that the girl was an orphan of very little education, and the court was of opinion that she did not understand any except the simplest language, and counsel for defendant was instructed to ask said question in simpler language, which he refused to do, and then the court asked said questions so witness could understand it. This explanation does not explain away the force and effect of the court’s ruling and acts and words. The question asked and testimony sought to be elicited was admissible. ■ The theory of the state was that the money obtained by the girl in the manner it was obtained from the bank was to pay Dr. Earnest for an abortion, while defendant was seeking to show that the money was obtained for the purpose of their going to Nevada, securing a divorce, and then marrying. This was important, and was in direct conflict with the state’s theory that the money was obtained to pay Dr. Earnest for the abortion, or criminal matters connected with the supposed pregnancy. We think this was very important testimony. The witness should have been required to answer it, and the court was wrong in refusing, in the first place, to admit it, and, in the second place, in his conduct and expression of his opinion with reference to it before the jury. This was viola-tive of the statute.

Another bill recites that appellant placed on the stand Judge Blackburn, the trial judge who tried a certain criminal case in Callahan county, in the county court of that county, in which prosecutrix testified with reference to certain matters, covered by her testimony in this case, and that defendant offered to present to the witness the statement of facts filed and approved in said cause at that time in Callahan county. The statement of facts was approved, and it was offered to the witness, the trial judge, for the purpose of refreshing his memory, if it would, with reference to the facts on said trial of the witness Lillie Hirt, relative to said evidence, and the court refused to permit the defendant, in the presence of the jury, to identify, establish, or prove said statement of facts in any manner by the witness, or to permit him to refer to the same in any manner as a statement of facts, and refused to permit counsel to submit the writing to the witness and inquire with reference to the length of time that had elapsed after the prosecution until the statement of facts was made up. Exception was reserved to all this. By this it was sought to prove by the witness, “That just before Christmas she had passed the time for her courses to come on about two weeks.” The witness testified that he had carefully scrutinized the record and would not have signed and approved the statement of facts if it had contained any statements the witness did not make. The court says:

“The witness was allowed to refresh his memory, but was not allowed to read said purported statement of facts to the jury, because said statement was not made up until two weeks after the trial by him and was then prepared by counsel for defendant from memory.”

We are of opinion that the court was in error. This bill shows that the court refused to let this witness identify or establish the statement of facts, or to permit him to refer to it in any manner as a statement of facts. This seems to have been based upon the fact that the statement of facts in the county court case was not made up until two weeks after the trial in that court. In this the court was in error. Whether the witness had a right to prove the exact statement of facts hy his reading over the statement of facts is not so _ material as the fact that after reading it iie could refresh his memory, and, if he recalled it, then testify. The testimony would have been contradictory to llie girl’s testimony upon this trial. She testified on the trial she had missed her menstrual period some time before she had gone to Dr. Earnest. This testimony, if it had been permitted to be proved, would have been an attack on her testimony with reference to those matters, and should have been permitted.

Another bill recites the state of Texas introduced in evidence and read to the jury the following statement, being the testimony in the examining trial of T. J. Earnest, and which is: Then sets out several pages of the testimony taken in the examining trial. This was ruled out with the statement by the judge that:

“This instrument was merely introduced. It was not read to the jury. It was not argued to the jury by the state or defendant. The reason it was introduced was because defendant had introduced numerous isolated parts and the whole was allowed introduced to explain in logical connection said testimony. But none of said statement was read to the jury by the state, and no reference was made to it.”

This bill is in such indefinite shape it is difficult to understand just what was done. The bill recites that the state introduced in evidence and read to the jury the following 'testimony, which sets out the testimony. This was objected to by appellant, and the court signs the bill by stating that it was not read to the jury, but was introduced because defendant had introduced numerous isolated parts, and the whole was allowed introduced to explain in logical connection said testimony. Upon another trial this matter should not occur as here detailed. If appellant introduced isolated portions of this examining trial testimony as impeachment or in contradiction of the girl’s testimony on the final trial, then the state would have the right to introduce such portions of her examining trial testimony as bore upon and were explanatory of those put in evidence by appellant, but that portion of the examining trial testimony that did not shed light upon those introduced by defendant would not be admissible. This is called to the attention of the trial court so that upon another trial this matter may be properly adjusted if it should arise. The rule is well settled in Texas both by the statute and the decisions that, where one party introduces a fact favorable to himself and adverse to opposing party, the opposing party may meet this by such testimony as is legitimate and explanatory for his side as against that introduced in the first instance.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENDERGAST, J., absent.
      <®=»ii’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    INGRAM v. STATE.
    (No. 4972.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. Larceny <&wkey;55 — House Theft — Evidence —Sufficiency.
    Evidence held sufficient to sustain conviction of the crime of horse theft.
    2. Criminal Law <&wkey;1170%(6) — Appeal — Harmless Error.
    Erroneous cross-examination of accused’s wife was harmless, where the judge, on his own motion, stopped the county attorney and did not permit the questions to be answered.
    3. Witnesses <&wkey;337(6) — Cross-Examination —Other Offenses — Admissibility.
    In prosecution for horse theft, it was not error for the county attorney to ask accused if he was the same person who had been arrested for theft, where on redirect examination accused stated that he had pleaded guilty to theft but denied his guilt.
    4. Criminal Law <®=»1083 — Recognizance— Jurisdiction of Lower Court.
    Where accused on conviction gave notice of appeal and recognizance before he was sentenced, the court nevertheless had jurisdiction to set aside the recognizance and sentence accused and to require a new recognizance.
    5. Affidavits <&wkey;5 — New Trial — Affidavit.
    An affidavit attached to a motion for new trial cannot be taken by attorney for accused.
    Appeal from District Court, Grayson County ; C. T. Freeman, Judge.
    Bud Ingram was convicted of horse theft, and he appeals.
    Affirmed.
    Charles Crenshaw, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of horse theft, and his punishment assessed at the lowest prescribed by law.

He contends the evidence was insufficient to sustain the conviction. From a study of the statement of facts we have reached the contrary conclusion. Appellant’s defense was alibi. He and his wife testified that he was at home all night in bed on the night the horse was stolen. The court submitted that issue specially to the jury, which found against him. Testimony in behalf of the state shows that some time during the night of October 26th some one stole from Mr. McDaniel and off of his premises, his horse, hack, harness, and some seed cotton. The next morning, when he discovered that his property had been stolen, he tracked the hack from where it, the horse, cotton, etc., were taken, out into one of the roads or streets in Sherman. Mr. Burleson testified he saw the appellant with* this property about 2 o’clock that night, and that he called to him to stop when he saw appellant with this property, but instead he put whip to the horse and ran. He gave chase, and before he could actually catch him appellant jumped from the hack, ran, and escaped. He recovered the property, and it was that morning returned to Mr. McDaniel, the owner. Mr. Burleson swore positively to the identity of the appellant. Appellant denied that it was he whom Mr. Burleson hailed, chased, etc., and who was in possession of the stolen property at the time. This was a question of fact for the jury. We cannot disturb the verdict.

The court did not err nor abuse his discretion in excusing the officer from the rule as explained by his qualification of appellant’s bill on that subject.

Appellant introduced his wife as a witness for him, who testified, among other things, that her husband went to bed at their home early in the night in which the horse was stolen, and in substance that he remained in bed all during the night; that she got up first the next morning and left him in bed at the time. On cross-examination the county attorney asked her:

“Q. Bucl was staying in bed after you got up that morning. He had been browsing about a little, hadn’t he? A. No, he had not. Q. Been out foraging a little, hadn’t he? Have any cotton marks on him? Have any cotton on those blue trousers?”

Appellant at the time made no objection to the asking or answer of either of these questions. The judge, however, on his own motion stopped the county attorney and told him that under the decisions of this court it was his duty to so stop him, and he did stop him. The county attorney claimed that the questions were in strict cross-examination of appellant’s wife. We think this was true as to the first question. The wife did not answer the last question, and her answer to the first clearly was in appellant’s favor and not against him. After the court had stopped this cross-examination; appellant then objected because the questions were improper and leading, calculated to prejudice him. This bill shows no reversible error.

Appellant himself testified. On cross-examination, evidently for the purpose of impeaching him, the county attorney asked him if he was the same Bud Ingram that had been arrested for theft. He answered that he was. On his redirect examination he testified that he had pleaded guilty to theft in another case within two years from that date, but he denied he was guilty thereof. It has always been held by this court that misdemeanor theft imports moral turpitude, and that an accused when testifying can be impeached by showing that he has been convicted for this offense. Appellant’s bill on this subject shows no error. See some of the cases collated by Mr. Branch in section 167, p. 101, 1 Branch’s An. P. O.

At 11 o’clock on February 1st, the court acted on appellant’s motion for new trial, overruling it, to which appellant at the time excepted and gave notice of appeal. The court then fixed his recognizance at $1,200. He at once with his sureties in open court then entered into the proper recognizance. Appellant, by an oversight, at that time had not been sentenced. Later in the day the court discovered this. The court thereupon set aside the recognizance, and ordered him arrested and brought before the court so that sentence could be pronounced upon him. He was arrested, brought before the court, and thereupon duly sentenced. The court then announced that unless appellant entered into a new recognizance he would be remanded to jail, whereupon appellant entered into a new recognizance and was thereupon released from custody. Appellant objected to all this. It was all done during term time and at the term at which appellant had been convicted. All these proceedings were under the control of the court. The action of the court was correct and proper. Bundick v. State, 59 Tex. Cr. R. 9, 127 S. W. 543; Collins v. State, 75 Tex. Cr. R. 534, 171 S. W. 729.

In his amended motion for new trial appellant claimed he had discovered material new evidence. He attached to his motion-an affidavit by M. P. Oaywood which was sworn to before his own attorney. It has uniformly, and in a great many cases, been held by this court that an attorney for a defendant is not authorized to take such an affidavit. 1 Branch’s An. P. O. § 194. In addition to this, this affidavit discloses that the testimony of this witness would have been solely for the purpose of tending to impeach the state’s witness Mr. Burleson. Besides, the motion and affidavits are wholly insufficient under the law to entitle him to a new trial on that ground. For authorities, see 1 Branch’s An. P. C. p. 124 et seq. The other affidavit attached by Johnnie Williams shows that his testimony would have been wholly lacking in probative force and inadmissible.

The judgment is affirmed.
      othe- case1: see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    REDICK v. STATE.
    (No. 4910.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. Ckiminai, Law <&wkey;720(l) — Argument of Counsel — Erroneous Statements — Effect.
    ■Where the evidence fully justified reference to accused’s acts in throwing rocks at deceased just before the murder, mere fact that the county attorney imputed such testimony to the wrong witness was not error.
    2. Witnesses <&wkey;2S0 — Cross-examination-Questions.
    In prosecution for murder, in cross-examining defendant it was improper for the county attorney to ask, “Don’t you know that you are swearing to a lie?”
    3. Criminal Law <&wkey;1170% (2) — Witnesses —Examination.
    But when the witness answered that he did not know he was lying, the error was harmless.
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge.
    Dorsey Bedick was convicted of murder, and he appeals.
    Affirmed.
    Clyde F. Winn and Sidney E. Dawson, both of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of murder, and awarded ten years’ confinement in the penitentiary.

There are two hills of exception setting up practically the same state of facts. The first bill recites that, while the county attorney was making his closing argument, he used the following language:

“Candy Dunn testified that he saw this defendant, Dorsey Bedick, throwing bricks and rocks into the house of the deceased, Fif, there a short time before Fif was killed.”

Exception was reserved to this statement, and a charge asked instructing the jury to disregard the statement ■ of the county attorney because there was no such evidence in the record. The other bill is practically the same. The judge signs the first bill with a statement, and refers to that statement in his qualification of the second bill. The statement of the judge is as follows:

“The foregoing bill of exceptions is approved with the following explanation: Counsel presents two bills of exceptions, presenting practically the same question, being bills of exception Nos. 1 and 2. At the time the objection was made to the argument of the county attorney complained of in these two bills, I was under the impression that Candy Dunn had testified that he saw defendant throwing rocks or bricks into the house where deceased lived. By an examination of the statement of facts the court will discover that some witnesses had testified to that fact, and an examination of the bill itself will show that this witness, Candy Dunn, had seen them throwing rocks, but did not testify that the rocks were thrown into the house. There being testimony in the case by some of the witnesses that the rocks were thrown in the house, I did not think it of sufficient importance to stop the county attorney in making his closing argument where he had called the name of the wrong witness who testified to those facts. The jury in the trial of cases of this character, as well as all others, are presumed to be men of ordinary intelligence, and slight mistakes of this kind are not calculated to mislead them.”

This is signed officially by the trial judge.

There is evidence of witnesses to this effect:

“I put Cat (defendant) out of the door. He was not trying to get out all the time; he was trying to get to Fif (deceased). I was holding them- apart, and I crowded and shoved him out of the door. I shut the door, and Fif didn’t go and throw no bottle at Cat. Cat throwed a rock in the window. I didn’t see anybody throw no bottle as Cat ran out of the house. Cat went down there and got a whole lot of rocks and came back and throwed them in the house as I went on home, and I holloaed back and told them to stop that foolishness; they would get into something they never would get out of. Fif and Cat both throwed rocks. Cat was throwing rocks at Fif, and Fif was throwing rocks at Cat.”

Another witness testified in this connection:

“I never heard nary one of them say a cuss word while my daddy held them apart. (The daddy here referred to was the preceding witness from whose testimony the first quotation was made.) Then papa went on home, and, when he got over the hill, Dorsey came back— I don’t know whether he went off or not, but anyhow he came back, and Fif was standing in the door, and he throwed at Fif with a brick, and Fif jumped back and walked back in the door, and he throwed at him again with a brick. Dorsey throwed at Ben Franklin. When Dorsey throwed at Fif again, Dorsey walked around farther, around to the side of the house, and Dorsey throwed through the window at Ben Franklin, but didn’t hit him.”

The following quotation is also made:

“I never saw Fif throw nary rock at Cat. Cat throwed some brickbats at Fif. I did not see Fif throw at Cat at all; did not see Fif throw any rocks or brickbats out of the door at Cat. Cat threw, I don’t know how many times, at Fif standing in the door. Fif would walk to the door, and Cat would throw a rock at him, and Fif would jump back. If Fif threw any rocks at anybody, it was more than I seen.”

It will be understood that, where the name of Dorsey or Cat is used, it means the defendant, and, where Fif or Ben Franklin is used, it means the deceased.

We are of opinion that, while the county attorney was in error in imputing this evidence to the witness Dunn, yet this testimony would justify the statement made by the county attorney, except he imputed it to the wrong witness. The bill of exceptions would show the statement of the county attorney puts Candy Dunn in the attitude of making appellant the wrongdoer in throwing the rocks, which was a material matter. It placed appellant in the attitude of throwing rocks at the house in which deceased was. If there was no testimony showing that appellant threw rocks at the house, this might be a serious matter; but these witnesses testified that rocks were thrown by appellant at the deceased in the house, and the fact that the county attorney imputed it to the wrong witness, we think, was not of material consequence. If the rocks were thrown as testified by witnesses quoted, the mere fact that the county attorney imputed their testimony to Dunn instead of the other witnesses would hardly be of sufficient importance to cause a reversal. The materiality of the testimony lay in the fact that the rocks were thrown by defendant just preceding the difficulty. If he did not throw the rocks, it would place him in a bad light before the jury under the imputation of the county attorney; but, if he threw the rocks, the mere fact that the county attorney used the name of the wrong witness would not change the fact of his throwing the rocks, or the attitude of appellant to the case by reason of throwing the rocks. We do not believe this should reverse the judgment.

There is another bill of exceptions which recites that the county attorney asked the defendant, on cross-examination, the following questions: “Don’t you know it is a fact that he (deceased) did not have his hand in his pocket when you shot him?” The appellant -answered: “I know he did have it. Q. Don’t you know it is a lie?” Objection was interposed to this for various reasons, and the question was then propounded in this form: “Don’t you know that you are swearing a lie; that he did not have his hand in his pocket?” To this the appellant answered: “No, sir.” . This character of cross-examination of the defendant ought not to be indulged, and, in fact, this character or manner of questioning any witness ought not to be permitted. But in view of the statements in the bill we do not regard it as of sufficient importance to reverse. While it may have impressed the jury with the belief that the county attorney thought the witness was lying, or at least he was seeking to impress them with the idea that he was lying, yet his testimony was favorable to himself, that he was not lying at the time he stated the deceased had his hand in his pocket when he shot him.

These are the three questions presented for revision. We are of opinion they are not of sufficient importance to require a reversal of the judgment, and it is affirmed.
      <®=jFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    LEMCKE v. STATE.
    (No. 4971.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Criminal Law <&wkey;594(4) — Continuance — Absence oe Witness.
    In a. prosecution for slander by imputing want of chastity in the presence of a person, among others, who testified that defendant used the language charged in his presence and in the presence of one K., where it appeared from defendant’s application for continuance on account of the absence of K. that the latter had been subpoenaed, that in obedience to 'the subpoena, while on his way to attend trial, he was seriously • injured in an automobile accident, and was confined in the hospital, and that his injury was such that he could not be interviewed, the medical authorities informing defendant it would be several days before he could be seen, defendant was entitled to continuance.
    Appeal from Matagorda County Court; R. R. Lewis, Judge.
    B. Lemclce was convicted of slander by imputing want of chastity, and he appeals.
    Reversed, and cause remanded.
    E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by information and convicted for slander by imputing the want of chastity to a female in the presence of J. J. Fortenberry and others, and fined $100.

Fortenberry testified that appellant used in substance the language charged in the information in his presence and in the presence of Jerome Kruger. From his testimony it appears that appellant came to his house in company with Kruger, and that Kruger heard such conversation as took place. It seems from his testimony that the conversation was primarily with reference to a fence, hut incidentally the slanderous utterance was made by appellant in the presence and hearing of the witness and Kruger.

The information was filed the 28th day of-May, 1917, and the trial was had about the 2d of June of the same year. Appellant made an application for a continuance on account of the absence of Jerome Kruger, who, as above stated, was shown by the state’s witness to have been present and heard the conversation, and by whom appellant in his application for a continuance stated he could prove that the language imputed to him had not been used by him. From the motion to continue, which was the first motion, it appeared that Kruger had been subpoenaed, and that in obedience to the subpoena, while on his way to attend the trial, on the 1st day of June, was seriously injured in an automobile accident, and at the time the application was filed was confined in the hospital in Bay City in Mata-gorda county; that his injury was such that he could not he interviewed, the medical authorities in charge of him informing appellant that it would be several days before he could he seen. The application contains the statutory requisites, and in our judgment entitled appellant to a continuance. Because of its refusal the judgment of the lower court is reversed, and the cause remanded.

The other questions raised do not, as presented, show error.

PRENDERGAST, J., absent.
      <a^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    PORTERVILLE IRR. CO. v. GOODRICH et al.
    (No. 874.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.
    Rehearing Denied April 11, 1918.)
    Waters and Water Courses <&wkey;232 — Irrigation Company — Contracts.
    An agreement between an irrigation company and landowners contemplated organization in an unorganized county of an irrigation district to buy its plant and water appropriations. . The landowners were to take over the plant for the season of 1917, and in the meantime use their best efforts to organize the district as soon as possible, and they were to surrender the plant at the end of the season or at termination of any period for which the agreement was extended. It was also expressly provided that the season of 1917, for the purpose of the agreement, should end December 1, 1917, unless terminated sooner by organization of the district and acquirement of the property, but in case of inability to organize time was extended to December 31, 1919. In a proceeding to enjoin the company from interference with operation of the plant it appeared from the evidence that doubt as to the lawful organization of the district led to the enactment of Acts 35th Leg. c. 88, § 117 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5011%?), enacted March 19, 1917, including unorganized counties in the act for the establishment of water improvement districts, that the landowners were legally advised of the law and of the validity of organization thereunder and steps to be taken. It did not appear, however, that they proceeded to organize a district contemplated in the agreement. Held, that the agreement expired December 1, 1917, and was to be continued only in case the laws were inadequate to permit organization ; and that if there was any doubt as to adequacy of the law it was removed by section 117 of the statute referred to, and that as no steps were taken to remove any other doubt suggested in the petition or to organize the district and purchase the plant, a temporary injunction should not have been granted and should be dissolved.
    Appeal from District Court, Reeves County; Ciras. Gibbs, Judge.
    Injunction by Eloyd Goodrich and others against the Porterville Irrigation Company. From an order granting application for a temporary writ, defendant appeals.
    Temporary injunction dissolved.
    Jno. B. Howard & Olay Cooke,, of Pecos, for appellant. W. A. Hudson and J. F. Ross, both of Pecos, for appellees.
   WALTHALL, J.

This is an appeal from an interlocutory order of the district judge made in vacation granting an application for a temporary writ of injunction.

Appellant is a private irrigation corporation created under subdivision 23 of article 1120, Revised Statutes of this state, and formed to operate as such under chapter 3, title 73, pertaining to irrigation. Its place of business is at Portersville, in the unorganized county of Loving.

On the 15th day of February, 1917, appellant entered into an agreement with Floyd Goodrich and others, the memorandum of agreement reciting, among other things, not necessary to state more fully here, that appellees were resident, taxpaying, water-using landowners of Loving county, and contemplated that an irrigation district should be organized in and about Portersville, in Loving county, for the purpose of buying the irrigation plant and water appropriations then owned and operated by the appellant company, and that it was mutually desired by both parties thereto that pending the organization of such district a working basis for the installation of such pumping machinery and repair of the company’s ditches and the operation of the same be adopted.

It was therefore agreed, among other things', that the said landowners would use their best efforts to procure the organization of an irrigation district at the earliest date possible under the laws then existing or thereafter enacted, that upon the organization of such district, negotiations should be entered into between such district and the company looking to the purchase of the company’s plant and water appropriations.

It was agreed that for the irrigation season of 1917 the company should co-operate with a committee of the landowners and water users provided for in the agreement to act with reference to the installation, repair and operation of the irrigation plant and system, and employ such manager for said season for the company mutually satisfactory to both parties. The agreement provides for the selection of a committee of five from the resident landowners and water users, and in several paragraphs states the duties, authority, and rights of the committee in the co-operation with the company in the management of said irrigation plant and system.

The manager, selected by the terms of the agreement, was to be considered and deemed in all respects the agent of the company, and nothing in the agreement should be construed as altering the possession or control of the property of . the company. The landowners agreed that the plant'should be surrendered to the company at the end of the season of 1917, or at the termination of any period for which the agreement may be extended.

Paragraph 11 of the agreement, we think, states the period of time through which the agreement should continue and be in force. It reads as follows:

“Eleventh. This agreement shall remain in full force and effect for the irrigation season of 1917, which, for the purposes of this agreement, shall end on the 1st day of December, 1917, and the existence of said committee shall terminate when this agreement ends, provided however, that this agreement shall terminate sooner than said date upon the organization of such irrigation district and the acquirement of said property; and in the event of inability to organize such district by reason of inadequate laws therefor, this agreement shall continue until December 31, 1919, at the option of the landowners, they keeping said plant in a reasonable state of repair and replacing machinery lost or destroyed by flood or otherwise. Notice of election to eon-tinue or discontinue tiiis contract shall he given to the company in writing- not later than November 15, 1917.”

The company agreed, through its president, to sell.its plant and water appropriations, rights, and franchises to the district so organized at a price to be mutually agreed upon by the parties, or at a price to be fixed by arbitration in the event the parties could not agree upon the price. The company was to accept in payment of its properties the bonds of said irrigation district duly and legally issued; “provided, however, that this option shall in no event, unless extended by the company, continue for a longer period than the term ending December 31, 1919.”

The petition filed January 22, 1918, is based upon the agreement, reciting many of its provisions; alleges that the committee provided for in the agreement operated said irrigation system during the irrigation season of 1917 and performed all of their duties under the agreement; alleges that the irrigation district contemplated by the agreement had not been organized, because “the counsel then representing defendant company advised these plaintiffs and the officers and directors of defendant company that such organization would be of doubtful validity, and the bonds contemplated to be issued by said district would be unmarketable and without value, because there was no provision of law authorizing the comptroller to collect special taxes for an irrigation district from nonresident landowners in an unorganized county.”

The petition further recites that the company was fully advised of the difficulties presented to the organization' of said district and acquiesced therein; that it was mutually agreed by all parties concerned to postpone the organization of said district until some future date within the life of the agreement as extended; that plaintiffs and other landowners under said system are now and have at all times been willing. to proceed with the organization of said district as provided in the agreement, and have been prevented from so doing only by reason of the facts as stated; that steps were then being taken to organize the district; and that the notice provided for to continue said agreement in force until December 31, 1919, had been given.

It is alleged that the company acting through its president, on the 1st day of December, 1917, by certain acts alleged, assumed control of said irrigation system in violation of said agreement. The petition alleges that the company by reason of the facts shown is not able to operate the plant or respond in damages for not doing so; that plaintiffs are resident water users under the system, are farmers and dependent upon the products of their farms for support; that the company, with knowledge of all the facts, entered into said agreement; that the company refuses to permit plaintiffs, as such committee, to take charge of and operate said plant. Plaintiffs pray that defendant be enjoined from interfering with them in the operation of the plant and the enforcement of said agreement until December 31, 1919, or the organization of said district, and the acquisition of the properties of defendant as contemplated in the agreement.

Appellant company answered by general and special exception's, general denial, and special denials; the answer goes into much detail in its allegations that plaintiffs have not, in any manner, complied with the-terms of the agreement, or co-operated with the company in the adoption and enforcement of proper rules and regulations for the management of the plant and the distribution of water, the committee claiming and assuming absolute power to manage and distribute water ; that plaintiffs and the landowners have not paid their water rentals for 1917; have not kept the company free from debts as agreed, or the plant in a good state of repair; that plaintiffs did not attempt to perform any of the terms of the agreement; did not attempt to organize, or take any steps to organize, an irrigation district for the operation of said plant, nor agree, nor attempt to agree, on a reasonable price to be paid for the system, but refused to perform any part of said agreement, and conspired and colluded together to defraud the company out of its irrigation system; solicited the bringing of suits against the company; alleged its ability and willingness to operate the system.

The court heard evidence, and made an order, restraining the company from interfering with plaintiffs in the operation of the irrigation system under certain conditions. Space will not permit us to detail the evidence introduced on the hearing. It appears from the evidence that some doubt had been expressed in the early part of 1917 by Attorney W. W. Hubbard as to the adequacy or sufficiency of the law in its application to the formation of an irrigation district in an unorganized county, resulting in the insertion through the suggestion of Mr. Hubbard, of section 117 in chapter 88, General Laws 35th Leg. (Vernon’s Ann. -Civ, St. Supp. 1918, art. SOll^i), including unorganized counties in the act empowering commissioners’ courts to •establish water improvement districts in their respective counties, as provided in the act. That act became a law March 19, 1917.

In addition to the above, Mr. Hubbard testified that the insertion of said section into the law was by him deemed sufficient to remove any doubts as to the applicability of said law to the organization of such improvement district in an unorganized county; that he so advised plaintiffs at whose request and expense he had gone to Austin at the time of the session of the Legislature; that he had, while at Austin, discussed the matter with the Attorney General of the state, and was advised by tbat officer tbat in bis opinion tbe organization of said district would be legal, and tbe issuance of bonds by sueb district would be approved by tbe Attorney General, and tbat be bad so advised plaintiffs.

Tbe evidence further shows tbat plaintiffs were advised by Attorney Hubbard as to tbe first necessary step to be taken in tbe organization of said district, but tbe evidence does not show that plaintiffs have taken any steps whatever to perfect tbe organization of a water improvement district as contemplated in the agreement.

Appellant presents a number of propositions as to why tbe injunction should not be issued, restraining tbe company from resuming sole control and management of its irrigation plant. It occurs to us that tbe agreement between tbe parties, and sued upon in this proceeding, expired December 1, 1917. It is quite clear that tbe agreement was to be continued beyond tbat time only in case tbe laws were inadequate to permit tbe organization of such irrigation district as tbe parties bad in contemplation during tbe year 1917.

Tbe evidence, to our mind, conclusively shows tbat, if there was doubt as to tbe adequacy of tbe law in its application to tbe unorganized county of Loving, doubt was removed by tbe insertion of tbe section above referred to, of which plaintiffs were fully advised. Tbe law went into effect in March of 1917, and tbe evidence is clear tbat plaintiffs have taken no steps whatever to remove any other doubt that might exist as suggested in tbe petition, or to comply with their agreement in tbe organization of tbe district and tbe purchase of tbe company’s irrigation plant.

Appellant’s answer, and the evidence, in our opinion, clearly met the issues tendered in tbe petition. There was nothing remaining upon which to base an order for a temporary injunction.

It is unnecessary for us to discuss tbe other grounds presented by appellant.

The temporary injunction should not have been granted, and is hereby dissolved.
      <&wkey;For e*her cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWEB, C. J.

text:
    BASKIN, Co. Atty., et al. v. WALSCHAK et al.
    (No. 321.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 25, 1918.)
    1. Elections <&wkey;295(l) — Fraudulent Substitution of Ballots — Sufficiency of Evidence.
    In an election contest for fraudulent substitution of ballots, where it appears that ballots found in the box accredited to the voters challenging the ballots bear the proper numbers and the unimpeached signature of the presiding judge, and the box containing the ballots appears to have been kept in the custody of the proper officer, and there is no evidence of irregularity in holding the election, in making returns, or of fraud other than the uncorroborated testimony of voters repudiating their ballots, such testimony is insufficient to support a finding of fraudulent substitution of ballots.
    2. Elections <@=3295(1) — Contest — Sufficiency of Evidence.
    In suit contesting an election as to whether or not a road district should issue bonds, evidence held sufficient to support the findings of the trial judge that 28 voters, returned as voting for the issuance of the bonds and the levy of the tax, in fact voted against the issuance and levy.
    3. Elections <&wkey;299(4) — Contest—Ballots— Consideration of Irregularities by Judge.
    In an election contest, where undisputed irregularities in the ballots might have been discovered and noted when they were being. examined by the judge and counsel in a private room, and counsel for both sides knew that the trial judge had noted the irregularities and taken possession of the ballots showing them, the consideration of such irregularities by the judge, without the ballots being formally again tendered in the courtroom for his judicial consideration, was not reversible error.
    4. Elections <@=>298(2) — Contest—Fraudulent Votes — Subtraction.
    Under Bev. St. 1911, art. 3062, providing that if, on trial of any contested election case, any votes be found to be illegal or fraudulent, the court shall subtract such votes from the poll of the candidate who received them, and decide to which of the contesting parties the office belongs, in suit contesting an election on the issuance of bonds by a road district, where the court found that 28 votes were in fact cast against the bond issue, but fraudulently made to appear for it, it properly subtracted such 28 votes from the total for the issue as returned, and added them to the total against the issue.
    5. Highways <&wkey;90 — Boad Districts — Bonds — Election—Contest—Judgment.
    In suit contesting an election as to whether a road district should issue bonds, the court finding that the election failed to carry, because more than one-third of the qualified voters voted ag;ainst. the proposition, the purported road district failed of incorporation, and the court properly ordered that its attempted creation was null and void, thus declaring th'e true result of the election.
    Appeal from District Court, Milam County; E. Á. Camp, Special Judge.
    Suit by S. Walschak and others against Boy Baskin, County Attorney, and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Morrison & Lewis, of Cameron, for appellants. Etheridge, McCormick & Bromberg, of Dallas, for appellees.
   HIGHTOWEB, C. J.

On the 16th day of November, 1916, an election was held in a certain subdivision of justice’s precinct No. 6. Milam county, Tex., designated as road district No. 8, for the purpose of determining whether or not said road district should issue bonds in the sum of $150,000 for the purpose of constructing and maintaining macadamized, graveled, or paved roads in said district, as contemplated and authorized by chapter 2, title 18, of the Bevised Civil Statutes of this state. In this election it appears that 253 ballots were cast, and, according to the officers’ returns, 180 of these ballots were cast in favor of, and .73 were cast against, the issuance of such bonds. For the purpose of contesting this election, this suit was filed by Louis Able and 81 other citizens of Milain county, residing in said road district, and the county attorney of said county, 1-Ion. Roy Baskin, as well as the county judge and the commissioners’ court of said county, were made parties defendant for the purposes of this contest.

The petition of contestants, as usual in such cases, is quite lengthy, and abounds in many and specific allegations of fraud and irregularities in connection with the holding of said election, and the returns made by the oilicers thereof; but the main and prominent features of fraud, as charged, are to the effect that a great number of fraudulent and spurious ballots were substituted, by the officers holding said election, for genuine and legal ballots, which had been cast against the issuance of such bonds, and that such spuri-. ous and fraudulent ballots .were wrongfully and fraudulently counted by the officers holding said election in favor of said bonds. The cause was tried before the district judge, without a jury, and resulted in a finding and judgment to the effect that the main allegations of fraud contained in contestants’ petition were true, and that, in fact, many fraudulent and spurious ballots were substituted for genuine and legal ballots, which had been cast against the issuance of such bonds, and that, in fact, the true result of said election was against the issuance of such bonds. In other words, the trial court found and held that 141 legal ballots were cast in favor of the issuance of such bonds, and 96 legal ballots were cast against the issuance of such bonds.

The trial judge filed findings of fact and conclusions of law, portions of which will be mentioned hereinafter in connection -with assignments of error challenging same. The first seven assignments of error found in appellants’ brief relate to and challenge the action of the trial court in refusing to sustain certain special exceptions interposed by appellants to the petition of appellees, all of which deal with questions of pleading, and all of which we have considered in connection with the allegations of the petition, and, without discussing these assignments in detail, we have concluded that none of them can be sustained, and that none of them raise any new question of pleading, a discussion of which would be in any manner profitable to the bench or profession, and these assignments are overruled without further mention.

We shall now proceed to dispose of appellants’ ninth and tenth assignments of error, which are grouped, and which relate to findings of fact Nos. 16 and 18, respectively, made by the trial court. Finding of fact No. 16 was to the effect that the following named 28 persons were each, at the date of said election, qualified resident property-tax paying voters in said road district, and that they voted at said election, and that the returns of the election made by the judges and clerks thereof show that each of said persons voted for the issuance of said bonds and the levy of said tax, when in truth and in fact each of said persons voted against the issuance of said bonds and the levy of said tax, to wit: Henry Miles, J. O. Mauldin, I-I. E. Fuchs, F. M. Johnson, K. Moore, Louis Able, C. L. Russell, S. M. Cummings, D. C. Campbell, Albert Smith, W. H. Ezell, L. J. Fuchs, J. H. Oliver, E. A. Hamilton, J. C. Lee, G. W. Odom, A. P. Hess, R. T. Patterson, Thomas V. Adams, John Hobson, L. R. Schiller, Bill Locklin, Chas. Richardson, Henry I-Iorgtmann, A. L. Robinson, W. E. Coley, S. C. Wilson, H. E. Ilannis. Finding of fact No. 18 was to the effect that the 28 ballots cast at said election by said 28 legal voters were not placed in the ballot box as voted, and that said 28 legal ballots were not before the court, but that 28 other spurious ballots for the issuance of the bonds and levy of the tax were substituted therefor, and thereafter, by the judges and clerks of said election, counted in favor of said proposition.

It is contended by appellants that the trial court erred in said conclusion of fact No. 16, in so far as the court found that said 2S persons had voted at said election and cast their votes against the issuance of said bonds, for the reason that there was not sufficient evidence to warrant the court in making such finding, because the ballots found in the box, bearing the numbers thereon corresponding to the names of such persons on the poll list,' and bearing the signature of the presiding judge, were found in the proper ballot box, which box was shown to have been kept and maintained in the proper custody of the proper officer, and each of said ballots showed that the persons purporting to have cast the same did vote for said bonds, and because there was no evidence whatever of any irregularity in holding said election, in making the returns thereof, in the custody of the ballot box, or showing any fraud as charged, and because the only evidence impeaching, or tending to impeach, the said ballots, was the oral testimony of the voters, and which oral testimony was not in any way corroborated by any fact or circumstance; and finding of fact No. 18, above set out, is challenged by appellants because, as claimed by them, there was no evidence whatsoever showing or tending to show any of the facts so found, or showing or tending to show that there was any irregularity in holding said election, or in properly counting the ballots cast therein, or of making the proper returns thereof; or of the custody of the ballot boxes, poll lists, or tally sheets, and because the ballots bearing the proper signature of the presiding judge, and being properly numbered correspondingly with the names of said voters, as appeared upon the poll lists, were offered in evidence, and showed that the said voters had voted for the bonds, and that their said votes had been properly counted and tallied, and that the whole of said election had been properly held, and returns thereof made. The 'proposition of law submitted under these grouped assignments is as follows:

“In an election contest predicated upon allegations of fraudulent substitution of ballots, where it affirmatively appears that ballots found in the box, accredited to the voters challenging such ballots, bear the proper numbers, and the un-inxpeached signature of the presiding judge, and the box containing the ballots affirmatively appears to have been kept in the custody of the proper officer since the election, and there js no evidence whatever of any irregularity in holding said election, in making returns thereof, or of any fraud as alleged, other than the testimony of said voters repudiating their ballots, and which testimony was not corroborated by any other fact or circumstance, such testimony is insufficient to support a finding of fraudulent substitution of ballots.’’

We unhesitatingly agree with this proposition of law announced by appellants, and, if the facts assumed in this proposition find support in the record, this court would have no alternative but to sustain these assignments and reverse the judgment of the trial court in this cause. The 28 persons named in the court’s finding of fact No. 16 are shown, without dispute by the record, to have been in every way legally qualified to vote in said election, and it is also shown, without dispute, that each of these voters did in fact vote at said election; and not only is this shown by each such voter himself, but it is also shown by the poll lists and tally sheets. Each of these voters was present and testified on the trial, and each positively testified that he voted against the issuance of the bonds, and that the ballot accredited to him and showing that he voted in favor of the issuance of these bonds was not, in fact, the ballot voted by him, and each unqualifiedly and positively repudiated such ballot accredited to him showing that he voted in favor of such bonds.

Now, appellants do not contend that it is not permissible to show by the verbal testimony of a voter at an election, in a contest of this character, and where fraud is alleged to have been perpetrated by the substitution of spurious and forged ballots, as here, that any ballot found in the box and accredited to such voter was, in fact, not the ballot cast by him; hut the real gist of the contention of appellants in this connection is that such verbal testimony of such voters, though admissible, was not sufficient to warrant the finding of the trial court to the effect that these 28 persons in fact voted against the issuance of the bonds, in the absence of evidence corroborative of such testimony, and that such testimony was not corroborated, circumstantially or otherwise. It is true, as contended by appellants, that there was no positive testimony, other than that of these voters themselves, showing that they voted against the issuance of these bonds; and that leaves for our determination whether there were such irregularities shown in connection with the holding of this election as were sufficient to circumstantially corroborate the uncontroverted testimony of these 28 voters.

It is claimed by appellees that such irregularities were conclusively shown. Among such irregularities were the following: Neither of the ballot boxes contained any statement by the presiding judge of the election, or any one else, of the number of mutilated or defaced ballots used in connection with said election, nor the number of ballots defectively printed: neither did said boxes contain any ballot other than those purporting to have been cast. Ballots Nos. 31, 155, and 1S5 were in duplicate. Ballot No. 17, shown by the poll list, as well as by Thos. Blinka, to have been cast by him, was not found in the boxes; and it was further shown by Blinka that he in fact voted, and voted against the issuance of the bonds. It was further clearly shown that X A. Tutor voted at the election against the issuance of the bonds, but the boxes contained no ballot purporting to have been cast by him. It was further shown that there were four ballots found in the box of voted ballots which bore no number, and each of these ballots purported to be in favor of the issuance of the bonds, and were so counted by the officers holding the election.

As showing what the law required regarding the number of official ballots to be furnished to the officers holding the election, and what the law required in the way of a statement from the officers holding this election, showing the number of ballots furnished, the number not voted, those defectively printed, those mutilated, etc., and the number returned unvoted, etc., attention is called to R. S. arts. 2973,2974, 2983, 3008, and 3009. According to the requirements of the above articles, the officers holding this election should have been furnished 1 y2 times as many official ballots as there were qualified voters in this road district ; and one of the boxes used in this election should have contained all defaced and mutilated ballots, but no such ballots were contained in any box used in this election. It was also required that the proper box should have contained a statement, signed by the presiding judge, of the number of ballots received by him, the number of mutilated or defaced ballots that the box contained, and also the number of ballots that were not given to voters, as well as those defectively printed, so that, after adding such numbers, “all ballots delivered to the election officers may be accounted for.” As a matter of fact, there was no such statement by the presiding judge, or any officer holding the election, found in any box. In addition to the above-mentioned irregularities and circumstances, it may he further said, that the officers who held this election (there was but one voting place) were all present during the trial of this cause below, and not one of them seems to have taken the witness stand for the purpose of denying or explaining the positive testimony of the above-mentioned 28 voters, or the irregularities above mentioned, and which were relied upon by appellees as corroborative of the testimony of these voters.

Now, the question is: Was the positive and uncontradicted testimony of these 28 voters, save by the election returns themselves, when considered in connection with the irregularities attendant upon the election, as above mentioned, and in connection with the failure on the part of the officers holding such election to testify, sufficient to warrant the conclusion or finding of the trial court to the effect that these 28 legally qualified voters in fact cast their ballots against the issuance of these bonds? After very careful consideration of this question, and being not in the least unmindful of the importance of its proper determination, we have concluded that this court would not be authorized to hold that the findings of the trial judge, challenged by these assignments, were not so wholly without support in the evidence as to warrant this court in setting them aside and holding otherwise, and we therefore overrule appellants’ ninth and tenth assignments.

But it is further contended, by appellants’ assignments designated “tenth and eleventh assignments of error,” that the trial court erred in taking into consideration, in arriving at his findings of fact Nos. 16 and 18, any of the irregularities above mentioned, for the reason, substantially, that there was no evidence introduced before the trial court showing such irregularities. It is the contention of appellants in this connection that when the trial judge concluded, after a prima facie showing was made, that he would be authorized to open the ballot boxes, it was agreed that he and the attorneys for both sides should retire into a private room of the courthouse and examine all ballots of said voters which were put in contest by the pleadings, and that this was the only purpose for which the trial judge and the attorneys retired to this room, and that it was not the purpose and intention to discover or take into consideration irregularities, if any, that might be found or discovered after going into the ballot box, and that the trial judge was not authorized to take into consideration, as a basis for any finding by him, any of the irregularities above mentioned, and that, since no testimony was offered in' connection with such supposed irregularities after the trial judge resumed the bench in the courtroom, such irregularities could not be considered by him for any purpose, and could form no proper basis in the evidence or record for any finding or judgment by him.

There is a very lengthy bill of exception in the record, purporting to show what was done and said by and between the trial judge and the attorneys for both sides while the ballots were being examined in this private room, and it appears from this bill that the ballots which were found in duplicate, and those which were found without any number whatever, as above shown, were discovered while! such investigation was being made by the trial judge and the attorneys, and that these matters were remarked about at the time, and that such ballots were thereupon taken by the trial judge and pinnéd together, and this fact noted and agreed to by the attorneys present, and, according to the bill, there was no intimation or objection whatever by counsel for either side that the trial judge was not to consider the condition of these ballots; but it also appears, from appellants’ bill, that after the trial judge had resumed the bench, to go on with the trial, no further testimony was offered in connection with these irregularities, and the trial judge, in fact, did consider them in arriving at his findings of fact and conclusions of law, as shown by the record in this case.

Now, the real contention of appellants is that, although these irregularities, which are undisputed, might have been discovered and noted a,t the time the ballots were being examined, and although counsel for both sides were aware that the trial judge had noted these irregularities, and had taken possession of these ballots showing same, that nevertheless, they could not be considered by him, unless formally again tendered in the courtroom for his judicial consideration. With this contention we cannot agree. It is not contended by appellants that they desired to make any explanation regarding these irregularities, or that they could have done so, and in the motion for new trial filed by appellants in this case, there is no contention whatever that any explanation could be made by them regarding any of these irregularities, or that they desired to attempt to do so, and therefore we are of opinion that, at the most, appellants could only contend that the action of the trial judge in considering these irregularities thus discovered, was itself but an irregularity, and that, since no injury whatever, in fact, is claimed to have been done appellants, or that appellants could have, in any manner-, explained or destroyed the effect, whatever it might be, of these irregularities, the action of the trial judge in this particular should not be held sufficient error, if error at all, to reverse this case, and the assignments relating to this matter are overruled.

The eighth assignment, while purporting to challenge the trial court’s judgment on a question of fact, we think has the effect of assailing a legal conclusion, and we shall so treat it. The trial judge, after finding as a fact that the 28 voters above named cast their ballots against’ the issuance of the bonds, and that such ballots, as cast, were in all respects regular and legal ballots, and after finding as a fact that said 28 ballots, as cast, were not put in the box by the officers of the election, but, on the contrary, that fraudulent, or spurious, or forged ballots were substituted for said 2S legal ballots, and were put in the box, and that these spurious or forged ballots purported to be in favor of the bonds, and were so counted by the officers of the election, held as a matter of law that these 28 spurious or forged ballots or votes should be deducted from the total number of legal votes that were found by the court to have been cast in favor of the bonds, and accordingly, the trial judge did so deduct them. This left, according to the findings and holding of the trial judge, 141 legal votes in favor of the bonds. But the trial judge not only deducted from the total legal vote in favor of the bonds these 28 spurious or forged ballots, but also held that the 28 legal votes or ballots cast by said 2S legal voters, against the issuance of the bonds, should be counted as cast by these voters; and the trial judge thereupon added to the total number of legal votes cast against the issuance of the bonds, which total number was found and held by the court to be 66 votes, the 28 votes which he found as a fact were cast by these 28 voters against the issuance of these bonds, which aggregated 94 votes against the issuance of the bonds, without reference to the votes of Thos. Blinka and J. A. Tutor, also alleged to have been voted against the bonds, and which the trial court found were voted against the bonds.

Now, it is earnestly and strenuously insisted by able counsel for appellants, that even though the trial judge was warranted by the facts in finding that these 28 voters in fact voted against the issuance of the bonds, and even though, for that reason, the trial judge was authorized to deduct from the total number of legal votes cast in favor of the bonds the 28 spurious or forged ballots, by which these 28 legal ballots were substituted, nevertheless the trial judge was clearly in error in holding that these 2S legal votes should be counted against the bonds, as the same were cast by said 28 voters. In the first place, it is contended by appellants, in this connection, that article 3062, It. S., is controlling, and is conclusive of appellants’ contention on this point, and that under this article of the statute the court was not authorized, in any event, to do more than subtract such spurious and forged ballots from the poll of the side receiving them, and was not authorized to add such ballots to the opposite side, in accordance with the parol testimony of said voters. And, in the same connection, it is further contended that as said article 3062 expressly limited the court’s authority to subtracting the votes of these 28 persons, who repudiated their ballots, from the side for which they were counted, and as it appears, beyond question, that after so doing, and after deducting all other ballots found by the court to have been illegal, from the poll of the side receiving them, that more than two-thirds of the remaining legal ballots were in favor of the bonds, the trial court should have rendered judgment upholding the election; that there being no issue of fact before it, or to be further found, this court should reverse the trial court, and render such judgment as should have been rendered below.

Article 3062, referred to, reads as follows:

“Fraudulent Votes Not to be Oownted. — If, upon the trial of any contested election case, any vote or votes be found to be illegal or fraudulent, the court trying the same shall subtract such vote or votes from the poll of the candidate who received the same, and after a full and fair investigation of the evidence, shall decide to which of the contesting parties the office belongs.”

Unquestionably the trial judge did precisely what is enjoined by this article, when he deducted or subtracted from the total number of legal votes cast in favor of these bonds, the 28 fraudulent and spurious votes hereinbefore mentioned, because said 28 votes or ballots were clearly illegal and fraudulent. We are unable to see, however, anything in this statute which either expressly or by implication prohibited the trial judge from counting, as a part of the legal vote east against these bonds, said 28 votes which were cast, as found by him, against the bonds, and were cast by persons who were in all respects legally qualified to vote at this election. Unquestionably,- the ballots which were prepared by these legal voters and handed to the judges of this election were neither fraudulent nor illegal votes, but, on the contrary, were legal and valid votes in every respect, and these voters were clearly entitled to have them deposited by the officers of this election in the ballot box, and by them counted as cast. The article of the statute above mentioned, in our opinion, refers only to fraudulent and illegal votes, and provides what shall be done with such votes, that is that they shall be subtracted from the side receiving them; but theje is nothing in the article which, in our opinion, could be reasonably construed to prohibit the trial judge from counting 28 legal votes, cast by as many legally authorized voters, for the side for which they were, in fact, cast in this instance.

Appellants, in this connection, also rely upon the eases of Savage v. Umphries, 118 S. W. 902, Pease v. State, 155 S. W. 662, and Owens v. Jennett, 64 Tex. 509. After a careful consideration of each of these cases, we have reached the conclusion that neither of them is authority for the contention here made by appellants; but, on the contrary, we are inclined to think that Owens v. Jennett is, by implication, authority against the contention here made by appellants. While the authorities cited by appellants do not, in our opinion, sustain their contention in this case, we wish to say that we fully appreciate the importance and gravity of the question here under consideration, and have given it such thought as its importance demands, consistent with the time this court has had for its consideration. It has been said by the courts of other jurisdictions that a forged ballot is one changed after being cast, or one substituted for the one cast, and the general rule, that it is competent to prove any writing to be a forgery, applies, it seems, to such a ballot. Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232, 8 Am. St. Rep. 349. It has also been held in other jurisdictions that it is competent, upon a recount of ballots, to prove that any particular one has been forged, and that such ballot should be corrected and admitted as evidence of the vote as cast. See Enc. of Ev. vol. 5, p. 62, and cases there cited. See, also, People v. Pease, 27 N. Y. 45; 62, 84 Am. Dec. 242; State v. Owens, 63 Tex. 261.

After careful consideration of this question, and in the light of such authority as we have been able to find upon it, we have concluded that the trial judge was not in error in counting the votes of these 28 legal voters against the issuance of these bonds, as they were found by the' trial judge to have been cast, and we therefore overrule this assignment of error.

By the twelfth assignment of error it is claimed that the trial judge erred in that portion of his judgment, which reads as follows:

“It is ordered and decreed by the court that’ Buckholts road district No. 8 of Milam county, and the attempted creation thereof, be and the same is hereby held to be null and void, and not a body politic or corporate in law, and that said purported Buckholts road district No. 8 be and the same is hereby restrained from exercising or attempting to exercise any act, right, or privilege or claim any immunity as a body politic or corporate in law, and that the clerk of this court deliver to said commissioners’ court a certified copy of this judgment.”

The proposition in this connection is that when a road district has been lawfully created, and an election ordered, to determine whether or not bonds of such district shall be issued, and a tax levied for the redemption thereof, and which said election results in favor of the bonds and tax, and in a contest the election is set aside, but there is no evidence as to illegality of the creation of the district, the court has no authority to declare the road district void.

The trial court having found that the election in question failed to carry, for the reason that more than one-third of the qualified voters voting at the same voted against the proposition there to be considered, the finding and holding of the trial court being upheld by this court, it is clear that this purported road district failed of incorporation, or had any legal existence or status of any character. This election was not set aside by the judgment of the trial court; but on the contrary, its true result was ascertained and declared, and that result was that the proposition had failed to carry, and we are unable to understand how this claimed road district now has any legal existence or status whatever. We do not construe that part of the judgment of the court complained of as forbidding the voters in that or any other designated subdivision of Milam county from petitioning the commissioners’ court to have another bond election, and in order to do so such voters would only be required to comply with the statute governing such matters. We do not care to discuss this matter further, and overrule this assignment.

What we have said above disposes of all assignments of error, and believing, as we do, that none of them should be sustained, they are all overruled, and the judgment of the trial court is in all things affirmed.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    NOBLES et al. v. LONG.
    (No. 1848.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 14, 1918.)
    1. Vendor and Purchaser <®=275 — Vendor’s Lien — Purchaser oe Note.
    If one who, pursuant to agreement with vendee to carry the debt, purchased the purchase-money notes was entitled to judgment for the amount of such notes, he was also entitled to judgment foreclosing vendor’s lien securing the notes.
    2. Appeal and Error ©^934(1) — Failure to Challen ge _ Jud gment — Presumption .
    _ Where assignment challenges judgment for the purchaser of purchase-money notes, only in so far as it grants foreclosure of vendor’s lien securing the notes, it will be assumed that defendant was entitled to judgment for the amount of the notes.
    3. Novation <s=8 — Nature and Requisites in General.
    Purchase-money notes, purchased by defendant pursuant to agreement with vendee to carry debt, were not novated, merged, and extinguished by subsequent transactions between the parties interested, evidenced by a judgment, deeds, and notes, canceled by later decree, so as to deprive defendant of the right to recover on them, since, to operate as a novation extinguishing the notes, subsequent transactions must have been valid.
    4. Vendor and Purchaser ©=261(3) — Purchaser oe Notes — Enforcement oe Vendor’s Lien.
    Where a vendor did not, at time of conveyance, agree that mother of vendee who furnished money to make first payment should have 46 acres of the 160 acres as her property, and defendant, who pursuant to agreement with .ven-dee to carry debt purchased notes given in payment of balance, did not so agree, defendant was entitled to enforce vendor’s lien, securing notes, against the entire tract, although the vendee made the agreement as stated, with the mother.
    Appeal from District Court, Kaufman County; F. L. I-Iawkins, Judge.
    Suit by Will Nobles and wife against T. T. Long, in which Mary Nobles intervened. From an adverse judgment, plaintiffs and intervener appeal.
    .Affirmed.
    By a deed dated October 31, 1911, Mrs. D. Smith conveyed 160 acres of land to plaintiff in error Will Nobles, the consideration being $400 then paid to her and said Nobles’ three promissory notes, one for $600, and the others for $500 each, payable to her one, two, and three years, respectively, after said October 31, 1911, and secured by a vendor’s lien retained on the land. Nobles was a married man, and purchased the land for use as a homestead. He afterwards so used all of it except 46 acres in the northwest corner of the tract, which were occupied and used as a homestead by his mother, plaintiff in error Mary Nobles. It seems that she furnished the $400 paid on the land at the time Will Nobles purchased it, and that it was agreed between them that she should have said 46 acres. Before any of the notes mentioned matured one Nash' became the owner of them, he having acquired same in due course of trade for value. Will Nobles was not able to pay the notes as they matured, and wished to arrange with a loan company to carry the debt for him. Defendant in error'Long, in consideration of $100 which Will Nobles agreed to pay him, undertook to so arrange with a loan company, and in pursuance of his undertaking, it seems, purchased the notes held by Nash, then aggregating, with interest which had accrued thereon, the sum of $1,760. Thereafterwards, by a deed dated October 16, 1913, Will Nobles conveyed the land to Long, in consideration, it was recited in the deed, of $900 paid to him by Long and the assumption by Long of the payment of the notes he had purchased of Nash. As a matter of fact no part of the $900 mentioned in the deed as having been paid by Long was paid by him. Alleging that he was induced to execute the deed by fraud on Long’s part, Will Nobles commenced a suit against Long to cancel same. Pending the suit Long, by a deed dated June 23,1914, reconveyed the land to Will Nobles, the consideration recited in the deed being the latter’s promissory note, secured by a lien on the land, for $2,250 payable to Long' July 1, 1914. The $2,250 note was not paid when it matured, and Long commenced suit on it, seeking thereby a recovery against Will Nobles for the amount of the note and a foreclosure of the vendor’s lien retained to secure it. This suit and the one commenced by Will Nobles against Long to cancel the deed made by the former to the latter were consolidated by an order of the court. The consolidated ease was disposed of by an agreed judgment, rendered March 25, 1916, in favor of Long for the land as against the Nobles and Boss Huffmaster, who had intervened therein; Will Nobles and his wife having conveyed the land to him by a deed dated March 21, 1916. It was provided in the agreement for the judgment rendered in the consolidated case that after judgment for the land was entered in favor of Long he should convey it to Huffmaster for the latter’s two notes, one for $1,400, payable in 20 days, and the other for $866.91, payable in one year, to be secured by a trust deed to be executed by Huffmaster on the land when it was so conveyed to him. In compliance with the agreement, Long by a deed dated March 27, 1916, conveyed the land to Huffmaster, who at the same time executed and delivered to Long his two notes for $1,400 and $866.91, respectively, and to Nestor Morrow a deed conveying the land to him in trust to secure the payment of the notes. Default having been made in the payment of the $1,400 note when it matured, Morrow as trustee sold and conveyed the land to Long June 6, 1916. This suit was by Will Nobles and his wife against Long to vacate the judgment referred to, and to cancel the various deeds and notes (except the deed from Mrs. Smith to Will Nobles and the notes made by him to Mrs. Smith) mentioned, on the ground of fraud. Mary Nobles, the mother of Will Nobles, intervened in the suit, claiming that she owned 46 acres of the land by purchase from said Mrs. D. Smith. On findings of his own and findings made by a jury on special issues submitted to them, the court rendered judgment (1) vacating the judgment referred to and canceling the deeds and notes mentioned, except the deed from Mrs. Smith to Will Nobles and the notes made by him to Mrs. Smith; (2) in favor of Will Nobles and his wife against the other parties, except his mother, Mary Nobles, for the land; (3) in favor of Long against Will Nobles for $2,-432.17 as the amount, principal, interest, etc., due on the three notes made by him to Mrs. Smith, foreclosing, as against said Will Nobles and his wife, and as against Mary Nobles, his mother, and as against Ross Huff-master and one Aston, who were parties to the suit, the vendor’s lien retained on the land to secure the payment of said three notes, directing a sale of said land and providing that if the proceeds of such sale were more than sufficient to pay said sum of $2,432.17 the excess to the amount of $400 should be paid to said Mary Nobles; (4) de-vesting title in the other parties to 46 acres out of the northwest corner of the 160 acres, and vesting same in said Mary Nobles, but subject to the foreclosure in favor of said Long; and (5) that said Huffmaster and Aston take nothing except that the latter “keep and hold possession of a portion of the land during the remainder of the present calendar year” (1916). The writ of error is by Will Nobles and wife and his mother, Mary Nobles.
    Huffmaster & Huffmaster and Terry & Brown, all of Kaufman, for appellants. Woods & Morrow, of Kaufman, for appellee.
   WILLSON, C. J.

(after stating the facts as above). The first assignment is as follows:

“The court erred in rendering judgment for the defendant Long foreclosing the notes mentioned in the judgment herein and holding that defendant was entitled to a foreclosure for vendor’s lien upon the land in controversy.”

It will be noted that the assignment challenges the correctness of the judgment only so far as it is in Long’s favor for a foreclosure of the vendor’s lien retained to secure the payment of Will Nobles’ notes to Mrs. Smith. It is clear it is not erroneous in that respect; for if Long was entitled to judgment for the amount of those notes (and it must be assumed that he was, in the absence, as is the case, of an assignment attacking the validity of the judgment in that respect), he plainly also was entitled to the foreclosure awarded to him.

The proposition under the assignment indicates that the Nobles construe it as an attack on the validity of the judgment in so far as it awards Long a recovery against Will Nobles of the amount of the latter’s notes to Mrs. Smith. If we so construed the assignment we nevertheless would overrule it; for we do not agree that those notes were so “novated, merged and extinguished” in the transactions evidenced by the judgment, deeds, and notes canceled by the decree as to deprive Long of a right to recover on them. To operate as a novation extinguishing those notes the new contracts must have been valid, and the court expressly determined that they were not. 29 Cyc. 1130; Davis v. Wynne, 190 S. W. 510.

Mary Nobles insists that the judgment is erroneous in so far as it forecloses the vendor’s lien on the 46 acres claimed by her. The contention is based on testimony showing that she furnished the $400 paid to Mrs. Smith at the time she conveyed the 160 acres to Will Nobles, and on the assumption that the testimony also showed that “all the parties” to the suit had agreed that the 46 acres ““was to be her property.” ' The testimony did not show the existence of such an agreement between Mary Nobles and Mrs. Smith, nor between Mary Nobles and Long. It did show, and the jury found, that there was such an agreement between Mary Nobles and her children, and the court determined by his judgment that as between them Mary Nobles was the owner of the 46 acres. Of course Mary Nobles and her children by an agreement among themselves could not deprive Mrs. Smith nor her assignees of a right to enforce the lien retained by her on the 160 acres she sold and conveyed to Will Nobles to secure the payment of the notes Will Nobles made to her.

There is no error in the judgment, and it is affirmed.
      <S=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes