source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Criminal Daw (§ 815) — Robbery — Instructions Ignoring Issues.
    In a prosecution for theft from the person, where the prosecuting witness testified that accused snatched the money from him, and accused contended that he won the money in gambling, and introduced evidence to that effect, a charge that if accused won the money gambling, or in a game in which the owner participated, he should be acquitted, or if the jury had a reasonable doubt of those questions he should be acquitted, is not improper, as excluding from consideration of the jury the questions whether the prosecuting witness had any money, or whether the money found on accused was the money which he had won.
    [Ed. Note.- — For other cases see Criminal Daw, Cent. Dig. §§ 1922, 1986; Dec. Dig. § 815.]
    Appeal from District Court,' Galveston County; John M. Conley, Acting Judge.
    W. Green was, convicted of theft from the person, and he appeals.
    Affirmed.
    O. E. Dane, Asst. Atty. Gen., for the State.

      For otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-Noi Series & Rep’r Indexes

   DAVIDSON, P. J.

Appellant was convicted of theft from the person; his punishment being assessed at two years’ confinement in the penitentiary.

It is unnecessary to go into a detailed statement of the evidence. There were two issues sharply put. That for the state shows a clear ease of theft from the person, while appellant’s evidence is to the effect the alleged injured party lost the money in a gambling hell in a game of dice called craps. On the face of the evidence the jury was justified in believing the state’s view of the ease. They saw proper to do so, and this court would not be justified in holding that the verdict was wrong from that standpoint.

The court submitted the state’s side of it in the ordinary way, and for the defendant charged that, if the jury should believe the defendant won the money gambling with dice from the alleged owner, or in a game in which said owner participated,' they should acquit the defendant, or if they had a reasonable doubt of those questions they should acquit. This charge is attacked as being incorrect. The contention is that the court erred in limiting the defensive theory that defendant won the identical money described in the indictment from the owner, or in a game in which he participated; whereas said charge should have authorized the jury to return a verdict of not guilty, if they found and believed or had a reasonable doubt as to whether or not defendant came into possession of the money described in the indictment, or any part thereof, in any other manner than that charged in the indictment, there being evidence to the effect that defendant had earned money, and a portion of the money taken from him and described in,the indictment, in..legitimate labor during tbe week just ending at the date of the alleged offense, and such charge eliminated from the consideration of the jury the mooted question as to whether or not Renchie, the injured party, had any such sum of money at the time it is alleged same was taken from him.

We are of the opinion there is no merit in' this. The theory of the defense was that Renchie, the alleged injured party, went into the gambling room and engaged in a game of dice, and lost his money, and that appellant won the money. Some of the witnesses testified that the injured party changed a $10 bill and lost the money in that manner; some of them testified that they saw him bet a $10 bill; and it is also in evidence by some of the defendant’s evidence that the injured party lost a $5 bill and a $2 bill on the game. It seems, however, that defendant won all the money that was lost. The jury would not be misled, under the charge of the court that if appellant won the money on the game, either directly from the alleged injured party, or that Renchie, the injured party, lost it in a game in which appellant participated, in either event appellant would not be guilty of theft from the person under the state’s case.

The state’s case was strongly put as testimony could put it, and, if true, the appellant snatched $27 in currency from Renchie on the street, and did not get it in the gambling room. Renehie’s testimony was that he had just emerged from a restaurant, where he had gone to purchase fish, and had the money in his hand — two $10 bills, a $5 bill, and a $2 bill — and appellant grabbed the money and fled with it; that he chased him some distance, into a room where he called an officer, who arrested appellant and took the $27 from him. The officer testifies to the fact that Renchie called him, and that he took the $27 away from appellant. Appellant’s whole case was that he won the money in the crap game. Under these facts we do not believe there was any error in the court’s charge, and that the criticisms are not of such a nature as would authorize a reversal of the judgment.

It is therefore ordered to be affirmed.


author: HARPER, J.

text:
    CARDEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Criminal Daw (§ 1106) — Bill on Exceptions — Statement op Facts — Piling — Time.
    Where accused was convicted at a term of court which continued more than 8 weeks, and ■more than 90 days elapsed after the motion for a new trial was overruled and sentence pronounced, and no statement of facts or bills of exception have been filed in the trial court, the judgment will be affirmed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    W. P. Carden was convicted of burglary, and he appeals.
    Affirmed.
    J. D. Moore, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at four years’ confinement in the state penitentiary.

Appellant was convicted at the December term of the district court of the twenty-sixth judicial district. This term of court may, and did, continue in session ior more than 8 weeks. The motion for new trial herein was overruled and sentence pronounced on January 21, 1913. More than 90 days have elapsed since said time, and no, statement of facts nor bills of exception have been filed in the trial court, as shown by the record filed in this court.

As the indictment charges an offense against the laws of this state, and the court submits that offense in his charge, we must presume that the charge correctly submitted all the issues arising from the evidence adduced.

Judgment affirmed.


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    WISEMAN et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.
    Rehearing Denied May 14, 1913.)
    1. Bail (§ 49*) — Criminal Prosecutions — Validity oe Bail — Record.
    Where a bail bond in a felony case was taken by the sheriff during the term of court, and tbe record contained no entry of an order of the court fixing the amount of the bail, nor facts showing that it fixed the amount, as required by Acts 30th Leg. c. 71, § 1, but it did not appear that it did not orally fix the amount and instruct the sheriff to take the bail in that amount, and the bond was acted on and accused appeared before the court and was tried, a judgment of forfeiture of the bond would not be set aside on the ground that it was a nullity, because the sheriff acted without authority in taking it.
    [Ed. Note. — For other eases, see Bail, Cent. Dig. §§ 195-208, 241, 244; Dec. Dig. § 49.*]
    2. Bail (§ 74*) — Criminal Prosecutions — Liability oe Sureties.
    Acts 30th Leg. c. 19, § 2, providing that where accused in a felony case is on bail when his trial commences the same shall not be discharged until the jury shall return a verdict, but immediately on the return of the verdict he shall be taken into custody and his bail discharged, the sheriff may not take accused into custody until after a verdict of guilty has been rendered, and accused will then be taken into custody and his sureties discharged until a new trial is awarded, when he is entitled to his discharge under the bond.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 289-308, 313, 314; Dec. Dig. § 74.*]
    Appeal from District Court, Wilbarger County; S. P. Huff, Judge.

      Action by the State against Roscoe Wise-man- and another for the forfeiture of a bail bond. From a judgment of forfeiture, defendants appeal.
    Affirmed.
    L. P. Bonner and Cecil Storey, both of Vernon, for appellants. C. E." Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

TKe facts, in substance, show that while the district court of Wilbarger county was in session there was pending against Roscoe Wiseman an indictment charging him with a felony. During the term of the court the sheriff took his bail in the sum of $760. This was not shown to have been fixed by the court. The amended statute provides that where the court is in session it is not necessary to bring the arrested party into court and have him enter into a recognizance in open court, but the court shall fix the amount of the bail, and the sheriff may then take, his bond without bringing him before the court. There is nothing to show the court did fix the amount of the bond.

It is contended that this bond was taken by the sheriff without authority of the law. In other words, the contention is, as the statute says the court shall fix the amount of the bond under the circumstances detailed, that the sheriff was without authority to take the bond during term time, and therefore the bond was a nullity. See Acts 30th Legislature, p. 148, § 1. We are of opinion there is no such error in this matter as requires a reversal of the judgment. It is not shown by positive evidence that the court did not fix the amount of the bail. The conclusion from the record would be of a negative character that he did not fix the bond, because there was no entry of it, and no facts introduced to show that he did fix it. The evidence does not show, however, that he did not verbally fix the amount of the bond and instruct the sheriff to take the bond in the amount. Be that as it may, under the authorities as we understand them, where the bond has been taken under such circumstances, and the party appears before the court and is tried, and the bond is acted upon, it would not be sufficiently erroneous to require a reversal of the judgment. See Arrington v. State, 13 Tex. App. 554; Lindsay v. State, 39 Tex. Cr. R. 468, 46 S. W. 1045; Thrash v. State, 16 Tex. App. 273; Peters v. State, 10 Tex. App. 305.

There is another proposition presented for reversal. Appellant went upon his trial and was convicted. This conviction was, at a subsequent day of the term, by the trial judge set aside and a new trial awarded. Section 2 of the Acts of the Thirtieth Legislature, p. 31, provides that where the defendant in cases of felony is on bail when his trial commences the same shall not thereby be considered as discharged until the jury shall return into court a verdict of guilty and the defendant taken into custody by the Sheriff, and he shall have the same right to remain on bail during the trial of his case and up to the return into court of such verdict of guilty as, under the law, he now has before the trial commences; but immediately upon the return into court of such verdict of guilty he shall be taken in custody by the sheriff and bail “be considered as discharged.” By the terms of the bail bond or recognizance it requires the principal to appear before that court from day to day and from term to term until discharged by order of the court, etc. Before the enactment of this statute, when the accused was placed upon trial, he was taken from his bondsmen during the trial, and they were no longer responsible for his attendance upon that trial. If acquitted, he was discharged; if convicted, he was placed in jail. Under the statute as it then was, if he was awarded a new trial, or his case was reversed on appeal, he was entitled to his discharge under the bond he was placed under prior to his trial and conviction. In_ either event, whether a new trial was awarded him by the trial court or by the appellate court, upon granting of that new trial he was entitled to his discharge under his bond, unless the sureties had surrendered him, and in that event the sureties were considered discharged until the new trial was awarded or the reversal occurred, and they would not be responsible for his appearance while he was in jail awaiting the order of the court on motion for new trial, or the action of the appellate court, but would be if new trial was awarded. With reference to the appeal in felony cases, where the conviction is for less than 15 years, he may give an appeal bond or recognizance and go out under that bond. Whether the appeal bond would discharge the sureties from all subsequent liabilities is not necessary here to discuss, not being involved; but under the old law, as before stated, when the case went to trial, he was taken from his bondsmen by virtue of that fact and placed in custody of the officers pending the disposition of his case, and to that extent the bondsmen were considered as discharged of liability until the new trial was awarded. The only difference, as we understand the present and the former statute, is that the sheriff cannot now take the principal in charge until after a verdict of guilty has been rendered against him, and the defendant is then taken into custody, and his sureties are then considered as discharged from further liability on the bond until a new trial has been awarded him, or some action is taken by the court which liberates him from that conviction; whereas, under the old law, he was taken in custody upon going to trial. The only relative difference in the two statutes is it permits the defendant, under the act of the Thirtieth Legislature, to go at large during his trial; whereas, under the previous law, he was taken in custody immediately upon the announcement of ready for trial.

Viewing the matter from this standpoint, we are of the opinion that the court did not commit such error as would require a reversal of the Judgment. It is therefore affirmed.


text:
    DRYSDALE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    1. Robbery (§ 24) — Assault with Intent to Rob—Sufficiency of Evidence.
    Evidence held sufficient to support a conviction of assault with intent to commit robbery.
    [Ed. Note.—For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.]
    2. Criminad Law (§ 59)—Principals—Par-ticipation in Offense.
    Under Pen. Code 1911, art. 74, providing that all persons are principals' who are guilty of acting together in the commission of an offense, accused was a principal and not an accomplice where he was present and assisted in an assault with an intent to commit robbery, although he claimed that he thought his code-fendant was a deteetivé and that he was helping him to arrest the prosecuting witness.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    3. Cbiminab Law (§ 1173)—Appeal—Harm-less Beeob.
    Under Pen. Code 1911, art. 41, providing that temporary insanity produced by the voluntary recent use of ardent spirits shall not be an excuse for the commission of a crime, but that evidence thereof may be introduced in mitigation of the penalty, and that it shall be the duty of the judge to instruct the jury accordingly, the failure of the judge to give such an instruction was harmless, even if the evidence raised that issue, where the jury fixed the lowest penalty prescribed by law for the offense charged.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3164-3168; Dec. Dig. § 1173.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    J. W. Drysdale was convicted of assault with intent to rob, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted in the district court of Bexar county under an indictment charging him with assault with intent to commit robbery, and his punishment assessed at confinement in the penitentiary for the term of two years.

The evidence on the part of the state shows that at about 1 a. m. on the 22d of November, 1912, prosecuting witness Rafael Davila, in San Antonio, started home when two parties stopped him; the little one (defendant) told him that the ot'her was a sheriff, and the other party, Edwards, told Da-vila that he was sheriff and was looting for him, and Edwards then hit prosecuting witness with the pistol; defendant went through his pockets. Prosecuting witness says he told them to take his money but not kill him. Two policemen, Zapata and Cardenas, saw these three parties and went up to them and heard Davila say, “Take my money but don’t kill me,” and saw the defendant with his hands in prosecuting witness Davila’s pocket, and the codefendant Edwards with a gun drawn on the said Davila.

The defendant’s testimony tended to show that he thought Edwards was a detective; that he had a star-shaped badge, and told defendant he was working for the government ; that on the night in question he took Edwards to the show, and that they drank a good deal of intoxicating liquors during acts and after the show, and that he did not know what he was doing, he was so drunk; that he thought he was helping Edwards to arrest the prosecuting witness. There are no bills of exception in the record, and the only matters presented for review are contained in the motion for new trial.

The first complaint is that the verdict of the jury is contrary to the law and the evidence. There is no merit in this contention. The evidence is amply sufficient, and shows that the defendant is guilty as charged in the indictment.

The second complaint is that the court erred in failing to instruct the jury to acquit defendant because the indictment charges him as principal and the proof shows that he was not a principal but an accomplice. There is no merit in this contention. Article 74, R. P. C., defines “principals” as follows: ' “All persons are principals who are guilty of acting together in the commission of an offense.” The evidence in this ease shows that the defendant was present and assisted in the commission of the offense. Therefore he was a principal, and this complaint of appellant is without merit.

The third complaint is that the court erred in failing to charge on the recent use of ardent spirits. Article 41, R. P. G., provides that temporary insanity produced by the vbluntary recent use of ardent spirits shall not constitute an excuse for the commission of a crime, but evidence of temporary insanity produced by such use of ardent spirits may be introduced in evidence by defendant in mitigation of the penalty, and it shall be the duty of the judge in such a case to instruct the jury in accordance with said provisions. It may be that the evidence raised the issue that he was temporarily insane, and the court should have charged the jury the law as to the recent use of intoxicating liquors, yet in this case, since appellant got the lowest penalty prescribed by law for the offense with which he was charged, no injury could have resulted to him from the failure of the court to so charge the jury. It is no defense to crime, and the jury could not have done other than as they did do, if he had so charged them.

The judgment is affirmed.


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    Ex parte BURFORD.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    Criminal Law (§ 196*) — Habeas Corpus (§ 31) — Former Jeopardy — Identity op Offenses.
    Conceding that a case might arise justifying the release on habeas corpus of a person held for trial for an offense of which he had already been acquitted, where accused in four indictments was charged with incest with B. on four different dates, and on a trial under one indictment B. was asked as to intercourse with accused on the dates covered by the other indictments but on denying such intercourse, no other proof thereof was offered, and no conviction asked for any act except that charged' in the indictment on trial, his acquittal did not prevent the trial of the other indictments, or entitle him to release on habeas corpus.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 382, 383; Dec. Dig. § 195;* Habeas Corpus, Cent. Dig. § 27; Dec. Dig. § 31.]
    Original application for a writ of habeas corpus by W. H. Burford.
    Denied.
    Gibson & Wilson, of Pecos, and W. F. Ramsey, of Austin, for applicant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

In this case it appears that relator was indicted by the grand jury of Reeves county, charged with incest with his stepdaughter, Willie Boyd. The grand jury returned four bills of indictment; the first alleging that an act of intercourse took place on July 1, 1910, the second alleged an act took place on November 1, 1910, while the third and fourth indictments alleged acts on November 10th and November 16th.

That each act of intercourse would constitute a separate and distinct offense is not contested by relator, but he contends that on the trial for the offense alleged in the indictment as talcing place July 1st that evidence as to each of the other dates was also admitted, and not limited in the charge of the court. While it is true that Willie Boyd was asked in regard to each of these dates, yet she denied that relator ever had intercourse with her on any date; therefore, the state could not seek a conviction on her testimony alone. We do not think the evidence had on this trial would bring this case within the rule announced in the case of Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775. If the state had any proof that appellant was guilty of having illicit intercourse with his stepdaughter on November 1st, 10th, or 15th, it was not adduced on this trial. It may be when those eases are called for trial it has evidence it will offer as to the commission of an offense on those dates. It is true the examination of Willie Boyd took a wide range; but, when she denied having intercourse with appellant on November 1st, 10th, and 15th, the state did not seek nor ask for a conviction on those dates. The rule in the Davis Case seems to be against the great weight of authority, both in this state and in other states, and, while a case might arise which would authorize the granting of the writ of habeas corpus where one had been tried and acquitted of that specific offense, yet the facts here do not make a case in which the writ should be granted. Relator’s counsel in their brief frankly state that the great weight of authority is against their contention, saying: “We are not unmindful of the fact that the authorities generally seem opposed to the position taken by us in the case. The case of Hovey v. Sheffner, 16 Wyo. 254, 93 Pac. 305, 125 Am. St. Rep. 1037 [15 L. R. A. (N. S.) 227, 15 Ann. Cas. 318], is, in many respects, the best considered and the most exhaustive discussion of this question to be found anywhere. This case quotes the authorities from all over the Union, and is probably the strongest authority against us. It states the rule to be as follows: ‘So we find it laid down as a general rule that the defense of former jeopardy or of former acquittal or conviction does not entitle the prisoner to be discharged on habeas corpus. 21 Cyc. 305, and cases cited; 9 Ency. of Pl. & Pr. 632; Church on Habeas Corpus (2d Ed.) § 253, and note; 1 Bishop’s New Criminal Procedure, §■ 821. In the section cited Mr. Bishop states that a discharge by the jury after jeopardy begun without verdict or the prisoner’s consent operates in law as an acquittal; and on motion without plea he is entitled to be set at liberty, but that, should the court refuse, habeas corpus will not lie.’ This seems to have been the rule in this state for many years. It is well illustrated in the case of Perry v. State, 41 Tex. 488; Wright v. State, 7 Ind. 324; Hurd on Habeas Corpus, pp. 335-344; Commonwealth ex rel. Norton v. Deacon, 8 Serg. & R. [Pa.] 72. In its facts the case of Perry v. State, 41 Tex. 488, is very like the case at bar. In that case it appeared that Perry was held in custody to answer five several indictments for theft. The right to the discharge was based on the fact of appellant’s having been convicted in said court on an indictment for theft of a steer found at the same term of court as the indictment under which he is now held in custody. ‘All of said indictments, it is insisted, having been found on the same evidence and on account of the same transaction, are therefore claimed to be for one and the same supposed offense.’ In discussing the case, Judge Moore, speaking for the court, said: ‘An application for a habeas corpus for the purpose and under the circumstances for which this was made is certainly novel, and without precedent in the courts of this state. It would seem to have been long since much too well established by the common law, as well as our statutes, that an indictment not void upon its face, regularly returned to and pending in a court having jurisdiction thereof, could only be disposed of by some appropriate proceeding in sucb court, for an experiment such as the present. The practice at common law in the court of the King’s Bench is thus stated in Wilmot’s Opinions, 106 (Hurd on Habeas Corpus, 331): “In imprisonment for criminal offenses the court can act upon it only in one of three manners: (1) If it appear clearly thát the fact for which the party is committed is no crime, or that it is a crime, but he is committed for it by a person who has no jurisdiction, the court discharges. (2) If doubtful whether a crime or not, or whether the party be committed by a competent jurisdiction, or if it appears to be a crime, but a bailable one, the cqurt bails him. (3) If an offense not bailable, and committed by a competent jurisdiction, the court remands or commits him.” It is certainly essential to the proper discharge of its duties, and the due and efficient achhinistration of the law, “that wherever a court assumed to act in a matter, and over parties within its jurisdiction, it is its right and duty to proceed to its final determination without interference from another tribunal.” The 'writ of habeas corpus was not designed to operate as a writ of error or certiorari, and does not have their force and effect. It does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void. The authorities to which we are cited in support of the application for the writ are not applicable to such a case as this, and when properly understood tend in no way to maintain it.’ ” Many other authorities could be cited but we do not deem it necessary to do so.

Writ of habeas corpus denied.


text:
    GIBBS v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    On Motion for Rehearing, April 30, 1913.)
    1: Criminal Law (§§ 1092, 1099) — Appeal-Bills of Exception — Statement of Facts —Filing—Time. .
    Bills of exception and a statement of facts not filed until more than 20 days had expired after the adjournment of the term at which accused was convicted would not be considered on appeal.
    ■ [Ifld. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866, 2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    2.Criminal Law (§ 1099) — Appeal—Statement of Facts — Filin g — 'Delay—Fault of Court.
    Where accused’s statement of facts was approved by the attorneys on both sides and handed to the judge for his' approval on the thirteenth day after court adjourned, and the judge promised to approve and file the statement within the time allowed, but did not do so owing to a misapprehension of the length of time within which the statement must be filed, and it appeared that the statement filed out of time was correct, it would be considered on appeal.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Weapons (§ 9) — Carrying Weapons — Rented Premises.
    Where accused rented a picnic ground for a day, the premises being temporarily under his control, he was entitled to carry a pistol thereon without violating the law, but not where people were assembled or assembling.
    [Ed. Note. — lor other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.]
    4. Weapons (§ 9) — Carrying Weapons — Assembly of People.
    A person cannot lawfully carry a pistol into an assembly of people, although the premises on which the assembly is located belong to him.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.]
    5. Criminal Law (§ 417) — Evidence—Declarations of Third Person.
    In a prosecution of a negro for unlawfully carrying a pistol, evidence of a state’s witness that he heard accused’s brother say in accused’s absence that he was going to take a gun away from C., a white man, who was deputy sheriff, was incompetent; there being no claim of any conspiracy or acting together between accused and his brother.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    Appeal from Fort Bend County Court; Geo. C. Baker, Judge.
    Wesley Gibbs was convicted of carrying a pistol, and be appeals.
    Reversed and remanded on rehearing.
    G. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of carrying on and about his person a pistol in violation of the law; the jury assessing his punishment at a fine of $100.

There are several' right important ques- , tions in the case, based upon the statement of facts and bills of exception. These cannot be considered, however, inasmuch as they were filed more than 20 days after the county court had adjourned. The caption shows the court adjourned on the 12th of October. The bills of exception and statement of facts were filed on the 5th of November, or more than 20 days after the adjournment of the court. In this condition of the record the statement of facts and bills of exception cannot be considered. In the absence of the evidence ■ and bills of exception- none of the matters presented for revision can be entertained or revised.

As the record is presented, the judgment will be affirmed; and it is accordingly so ordered.

On Motion for. Rehearing.

On a former day of the term the judgment herein was affirmed without reference to the merits of the case; the statement of facts having been filed too late. The motion for rehearing shows the statement of facts was approved by the attorneys upon both sides and handed to the county judge for his 'approval on the 13th day after court adjourned ; that the judge promised to approve and file the facts within the time allowed, but thinking there were 30 days allowed for this purpose he postponed it and did not file same until the 5th of November, the court having adjourned previously on the 12th of October. The county attorney and the attorneys in the ease make this appear to be correct, and that the failure to get the statement of facts filed in time arose from no fault of the attorneys for appellant or the state. It having been approved, although out of time, as a correct statement of facts, we will consider the same as if filed within time. A different rule would apply if the appellant had been deprived of a statement of facts, but in this case the facts were approved as correct, and the only trouble was they were filed too late.

The evidence shows substantially and in brief that appellant had rented what is called the “picnic grounds” from Mr. Sloan. The picnic grounds adjoined the home of appellant or place where he had been living for years; a short strip of land a few feet in width intervening between his home place and the Sloan picnic ground. The place where he had the pistol was about 200 to 300 yards from where the people were assembling for picnic purposes. The picnic grounds for the occasion had been rented to and were controlled by- appellant, as shown by all the testimony without contradiction. The state’s theory was that appellant had the pistol in a difficulty between himself and his brother on one side, and an officer named Collins on the other. The appellant’s testimony is that he had no pistol, carried none, and that when Collins and his brother got into a difficulty that he, being informed of that fact, ran to where they were and took the pistol away from his brother, and by this means he had the pistol on his person. There is considerable amount of testimony pro and con in reference to this matter, but this is a sufficient statement of the case.

If appellant had the premises rented for .the day, they were under his control. Premises, under the circumstances, are under the control of the accused, whether it be permanent or temporary, and under such circumstances he has a right to have a pistol on the premises. It will be noted that he was not charged with carrying a pistol into an assembly; nor do the facts show that he carried it into an assembly, nor where people were assembled. It was 200 or 300 yards away from where the people were assembling. If he took the pistol from his brother, he was not guilty of carrying the pistol. If he carried the pistol on that part of the premises, and not where people had assembled or were assembling, he still would not be responsible for violating the law. It iS the law that a party cannot carry a pistol into an assembly of people, although the premises belong to him. The statute interdicts all others, except peace officers, from carrying a pistol under such circumstances. The authorities on both propositions are well settled. So from neither standpoint do we believe this evidence justifies the conviction of this negro.

There is another question in the case reserved by bill of exceptions to the ruling of the court in the admission of certain testimony. This bill shows that while the state’s witness Matthews was upon the stand he was asked the question by the county attorney, “What did you hear Will Gibbs say about going to take a gun away from Mr. H. W. Collins ?’ Various objections were urged to this, among others, that defendant was not present and knew nothing about what Will Gibbs said; nor was there any conspiracy or acting together between defendant and Will Gibbs shown. The witness answered: “Will Gibbs said, ‘That white son of a bitch [meaning Collins, the deputy sheriff] pulled a gun on me a while ago, and I am going down there to the picnic grounds and take it away from him.’ ” It is also recited as a fact, defendant was not present at the time this statement was made. Defendant also moved to exclude the answer so made, because the statement was made by Will Gibbs in "the absence of defendant, and there was nothing in the evidence to show that there had been any conspiracy between the defendant and his brother, Will Gibbs, to do any unlawful act, and the statements were highly prejudicial to the defendant in the trial before a white jury, the same being a declaration made by defendant’s brother regarding a white man, the defendant and his brother both being negroes; and further because the said statement was irrelevant and immaterial, etc. We think this evidence ought not to have gone to the jury. It is shown appellant was not present, did not hear Will Gibbs make the statement, and therefore he is not chargeable with it.

There is another question raised to the ruling of the court refusing to continue the case. It is unnecessary to discuss this. The witnesses can be obtained upon another trial. We are of opinion the motion for rehearing should be granted, the affirmance set aside, and the judgment reversed and cause, remanded; and it is accordingly so ordered.


author: TALBOT, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. STONE-DE LANE et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 10, 1913.)
    1. Careiers (§ 321) — Passengers — Alighting at Wrong Station — Instructions.
    Plaintiff, a female passenger, destined for A., alighted at night at B., believing it to be her destination. She testified that the conductor announced that the station was A., and claimed that a mistake was made in calling the station, and that this was the reason why she alighted. This fact was contradicted by both the brakeman and the conductor, who testified they called the station correctly. Held, that defendant was entitled to the giving of a request to charge that if the jury believed that the brakeman called the station B., and not A., and plaintiff was mistaken as to the call, and left the train under the belief that she was getting off at A., and she was not seen by the conductor to leave the train, and the brakeman assisted her off not knowing that she was destined to A., they should find for defendant.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.)
    2. Trial (§ 203) — Request to Charge — Affirmative Presentation of Pacts.
    Defendant, on request, is entitled to have the group of facts relied on in defense of plaintiff’s action submitted to the jury, and the jury told what to do in case they find such facts to be true.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.]
    Appeal from District Court, Henderson County; B. H. Gardner, Judge.
    Action by M. C. Stone-De Lane and another against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant railroad company appeals.
    Reversed and remanded.
    E. B. Perkins and D. Upthegrove, both of Dallas, R. S. Neblett, of Corsicana, and W. R. Bishop, of Athens, for appellant.

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

   TALBOT, J.

The appellee Mrs. M. C. Stone-De Lane, joined by her husband, brought this suit against the appellant to recover damages for personal injuries alleged to have been sustained by her through the negligence of appellant’s servants and employes. The petition charges that on or about the 25th day of October, 1911, the plaintiff Mrs. Stone-De Lane took passage on a passenger train at Birmingham, Ala., with a ticket to Athens, Tex.; that plaintiff passed through Texarkana, and that when she reached the station of Bassett, in Texas, the officers of the train invited and caused her to disembark from said train; that the conductor or auditor or brakeman called said station of Bassett “Athens,” and the conductor helped her off the train, and informed her that she had reached her destination; that the place was Athens, Tex.; that by reason of said carelessness and negligence of the servants of defendant in .causing her to disembark and leave said train at said point plaintiff was caused to remain in the town of Bassett for more than 24 hours; that she was invited and requested to leave said train in the nighttime; that there were no hotels in said town; that she was compelled and did remain in the depot the remainder of the night; that the night was cold and there was no fire in said depot; that she suffered from cold in said depot, was worried and annoyed, make sick, suffered from headache, backache, and nervous prostration. The defendant answered by general denial, and also alleged that plaintiff M. G. Stone-De Lane was guilty of contributory negligence in leaving the train at the town of Bassett, and in not ascertaining that she had not reached her station, and in not going to a boarding house or hotel, but remaining in the depot during the night. The case was tried before the court and a jury, and the trial resulted in a verdict and judgment for plaintiffs for $175. From this judgment the defendant appealed.

The first assignment of error complains of the court’s refusal to give the following requested instruction: “If you believe from the evidence that the brakeman on the train at the station of Bassett, or between the water tank and the station, called the station Bassett and not Athens, and the plaintiff was mistaken as to- the call of the station, and left the train under .the belief she was getting off at Athens, and you further believe from the evidence she was not seen by the conductor to leave the train, and that the brakeman assisted her off the train not knowing she was destined for Athens, then you will find for the defendant.” The issue sought to be submitted by this charge was clearly raised by the evidence, and the charge should have been given. Appellant’s brakeman testified: “A brakeman’s duty is for the protection of the train and to assist the conductor with the passengers, help assist the passengers off and on the train, and he calls the stations when the train is approaching the stations. On the night in question, the 26th of October, 1911, when we got to the town of Bassett, I did not call the station ‘Athens.’ I called that station ‘Bassett.’ I did not know there was a lady on the train destined to get off at Athens. I did not invite or direct a lady at Bassett to get off, telling her it was Athens. I just called the station, and that was all I done. I called the station ‘Bassett.’ ” B. J. Cobb, a passenger on the train, testified: “I was on the train that passed through Bassett that night. I got on- at Texarkana. I bought a ticket for Bassett. The station of Bas-sett was called that night. I was laying there, and suppose I had been asleep and woke up when it stopped at the tank, and when it moved off from the tank the conductor or brakeman or some" of them hol-loaed out, ‘Bassett!’ ‘Bassett!’ and I got up and walked out of the car. I was in the chair car. The train stopped at the station, and there is where I got off at the station. The station was called after the train stopped at the water tank. They take water there. I suppose the tank is a train length or a little over a train length from the depot. I know that station was called out, ‘Bassett.’ ” The conductor testified that he di(t not know the lady had got off the train till he got to Mt. Pleasant, where the operator advised him that the lady had got off at Bassett. He says: “That was the first time that I knew she had gotten off the train at Bassett, and I left instructions to make arrangements for the conductor to bring her on the next morning to Athens. I did not tell the lady to get off at Bassett. I did not call out the station of Athens when we got to Bassett. I had seen the lady on the train that night before reaching Bassett. She asked what time we would get to Athens and I told her about 5:30. That was after we left Texarkana. Between Texarkana and Bassett.” The plaintiff Mrs. Stone-De Lane, having testified on direct examination that when the train arrived at Bassett the station was called Athens, in rebuttal, said: “It was the conductor that made the announcement that that was Athens; he was the only one that I remember noticing in the train. I do not remember seeing any other man in the train. I do not remember seeing Mr. Bledsoe, the man that says that he is brakeman on the train that night.” Thus it appears that the contention of the plaintiffs was that the conductor in charge of the train in question called the station and called it “Athens,” and not “Bassett,” aijd that it was the theory and claim of the defendant that the brakeman called the station and called it “Bassett,” and not “Athens”; that the plaintiff Mrs. Stone-De Lane was mistaken in the call and got off the train; that the conductor did not see her leave the.train, and the brakeman did not know her destination, and so assisted her to alight at Bassett. Of these contentions that of the plaintiffs was clearly presented for the consideration of the jury, but that of the defendant was not. Having failed to submit defendant’s theory of the case in the main charge and there being evidence tending to support such theory, that is, evidence to the effect that the brakeman announced the station correctly, and that Mrs. Stone-De Lane may have been mistaken as to the name called and left the train, thinking it was Athens, that the conductor did not see her get off the train and that the brakeman aided her to alight therefrom not knowing her destination was Athens, it was reversible error for the court to refuse the requested charge submitting the issue.

It is well settled that the defendant, especially when a request is made therefor, is entitled to have the group of facts relied on in defense of the plaintiff’s action submitted to the jury and the jury told what to do in case they find such facts to be true. “Such a charge directs the minds bf the jury to the very facts in issue, and invokes their judgment upon the evidence relative to that issue.” Railway Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; Railway Co. v. Ayres, 83 Tex. 269, 18 S. W. 684; Railway Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058; Railway Co. v. Hall, 98 Tex. 480, 85 S. W. 786; Id., 92 S. W. 1079. Of such was the nature of the special charge under consideration and the court erred in refusing it.

There are other assignments of error, but they need not be stated and discussed. They either point out no reversible error or the matters complained of were covered by special chargs given at defendant’s request. The allegations of the petition when construed as a whole were sufficient to authorize the submission of the issue as to whether the conductor, as the train was approaching the station Bassett, called out in the car in which Mrs. Stone-De Lane was traveling “Athens.” In addition to the allegation that Mrs. Stone-De Lane was “invited and requested” to leave the train at Bassett, it is alleged that the “conductor (italics ours) or auditor or brakeman called said station ‘Athens’ ”; that the “conductor helped the plaintiff M. C. Stone-De Lane off of the train of the defendant, and advised her that that was her destination, and that the place was Athens, Tex.”

For the failure of the trial court to give the special charge made the basis of appellant’s first assignment of error, the judgment is reversed, and the cause remanded for a new trial.


author: PLY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. DIAZ.
    (Court of Civil Appeals of Texas. San Antonio.
    April 23, 1913.
    Rehearing Denied May 21, 1913.)
    1. Appeal and Error (§ 1071) — Findings of Fact — Refusal to BTnd.
    Refusal to find any facts whatever is not a cause for reversal, where there is a full statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.]
    2. Railroads (§ 424) — Killing Animals — Defenses — Running at Large.
    Where plaintiff’s mule wandered on defendant’s track at a crossing in a city, and was negligently struck 'by an approaching train, it was no defense that the mule was at large, in violation of a city ordinance.
    TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1521-1526; Dec. Dig. § 424.]
    3. Railroads (§ 415) — Killing Animals — Street Crossing — Care Required.
    It was the duty of the engineer of a train approaching a street crossing to keep a constant lookout and exercise reasonable care to prevent striking men or animals upon the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec. Dig. § 415.]

      4. Railroads (§ 443) — Killing Animals — Negligence—Evidence.
    Plaintiff’s mule, having escaped, went on defendant’s railroad track at a crossing, and was killed by an approaching train. The mule could have been seen for a long distance by the engineer if he had been on the track, and an eyewitness swore that the train was 200 yards off when the mule was grazing on or near the track, and that no signals were given and no effort made to stop the train. The mule was on the engineer’s side when struck, and the only claim was that he was not seen until the train was so near him that it could not be stopped, though the engineer testified that he could see ahead for blocks. Held, that the railroad company was chargeable with actionable negligence.
    [Ed. Note.—Eor other cases, see Railroads, Gent. Dig. §§ 1608-1620; Dec. Dig. § 443.]
    • Appeal from Bexar County Court for Civil Cases; Geo. W. Huntress, Judge.
    Action by Joe Diaz against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, DabDey & King, of Houston, for appellant. J. D. Childs, of San Antonio, for appellee.

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

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

   PLY, C. J.

Appellee sought the recovery of damages from appellant resulting from the death of a certain mule, which came to its end by being struck by a moving locomotive, operated on the track of appellant in the city of San Antonio. The grounds of negligence were a failure to reduce the speed of the train to 10 miles an hour in obedience to an ordinance of said city, a failure to ring a bell or blow a whistle at street crossings, and a failure to exercise ordinary diligence in discovering said mule on the track, and, if they did discover it, a failure to stop the train. A claim was made for $225, and on a trial by the court judgment was rendered in favor of appellee for $200.

The court filed findings of fact, and refused to find further facts when requested so to do by appellant. There is a statement of facts, and a refusal to find any facts whatever is not' a cap.se for reversal, where there is a full statement of facts. Implement Co. v. Templeton, 4 Willson, Civ. Cas. Ct. App. § 13, 14 S. W. 1015; Umscheid v. Scholz, 84 Tex. 265, 16 S. W. 1065; Bank v. Stout, 61 Tex. 567; Crocker v. Crocker, 19 Tex. Civ. App. 296, 46 S. W. 870. The first assignment is therefore overruled.

Tlie evidence showed that the mule was on the track of appellant, or near enough to it to be struck by a locomotive of appellant and killed, in a street in the city of- San Antonio. There was a witness who saw the mule on or near the track, and .saw the locomotive strike and kill him. The train was running at the rate of about 20 miles an hour when the mule was struck. The body of the mule was found about three feet from the track. The evidence indicates that the engineer saw the mule, or could have seen him, in time to have avoided colliding with him. There was a conflict of evidence as to the position of the mule before the collision, but there was testimony tending to support the judgment of the trial judge. The engineer did not swear that he was keeping watch on the track at the time of the collision, but said: “I am positive that I was looking and had my eye on the track because I made a practice to do it. I would not say so, on this particular, because it is so far off.” The court credited the testimony of the old Mexican, as he had the right to do, who testified that he saw the collision.

The mule was at large in the streets of 'San Antonio, in violation of the ordinances of the city, but that did not authorize his willful or negligent “taking off” by the railroad. His owner should not have permitted him to be at large; still the mule had escaped from his owner, and was not such an outlaw that every one that found him could take his life. No effort was made to warn men or animals that a rapidly moving train was approaching. There was evidence tending to show that no bell was rung or whistle sounded by the engineer, and that the train was running at an unlawful and reckless rate of speed through the streets of the city. Appellant cannot justify or excuse acts caused by its violation of law by a plea that the mule was on the street in violation of law.

The mule when killed was* on a street where men have a right to be at any and all times, and where it was the duty of appellant to keep a constant outlook. It may not have anticipated that a loose mule would be on the street, but it was under obligation to anticipate that men and animals in charge of men would be on the street crossing at any hour of the day or night. As said by this court in Railway v. Broomhead, 140 S. W. 820: “The fact that a person may without authority enter upon a railroad track does not relieve railroad companies of the duty devolving on them, in the operation of their dangerous agencies, of being watchful for men or beasts upon the tracks, but they will be held to owe the duty at all times when a train is in motion, at all points along their highways, to keep a reasonable outlook, and to exercise reasonable care to prevent injury to one on- the track.” To the same effect are Railway v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632, and Railway v. Watkins, 88 Tex. 20, 29 S. W. 232.

In the ease of Railway v. Corn, 110 S. W. 485, and 102 Tex. 194, 114 S. W. 103, the railway train killed a number of cattle on its fenced track, upon which the cattle had entered through a gate which was open. The defective condition of the gate and a failure to discover the cattle on the track were the grounds of negligence. There was one witness to the killing of the cattle besides the employes, a woman, who was in her yard, about 100 yards from tbe track, when tbe train passed. Sbe testified that no whistle was sounded nor bell rung; nor was any effort made to stop tbe train until the cattle bad been killed. Sbe did not see tbe engine strike the cattle. Tbe engineer flatly contradicted her testimony as to sounding tbe whistle and ringing the bell and as to making an effort to stop the train. In deciding tbe case tbe Court of Civil Appeals of the Second District held: “The fourth assignment asserts that ‘the uncontradicted evidence shows that tbe engineer exercised all the care and caution to avoid tbe accident after be discovered the animals on the track, and therefore there was no evidence to support a verdict for negligence on account of any failure in that respect,’ and the sixth assignment is to the same effect. But, as already seen, there was the testimony of Mrs. Boone contradicting to some extent that of the engineer, which was some evidence at least.” A writ of error was granted by the Supreme Court, and in affirming the judgment of the Court of Civil Appeals it was said: “The testimony as to what Mrs. Boone observed contradicted the testimony of the engineer in regard to the discovery of the cattle and his attempt to stop the train. At all events the testimony would show that they had failed to blow the whistle in time to have scared the cattle from the track, if the whistle had been sufficient for that purpose. The presumption must be, we think, since it was the custom of the railroad to give sharp blasts of the whistle in order to clear the track of live stock that were found upon it, that the whistle would, in some instances at least, result in the avoidance of an accident or injury.” That case is -quite applicable to this.

The issue in this case was as to whether the animal was on the track at a time when the engineer could have seen him'and could have frightened him off by sounding the whistle or ringing the bell, or could have stopped the train. It is not contended that the mule could not have been seen for a long distance by the engineer if he had been on the track, but the only contention- is that he was not seen until the train was so near him it could not be stopped. On that issue there was a conflict of evidence. Juan Ramirez swore that the train was 200 yards off when the mule was grazing on or near the track; that no signals were given and no effort made to stop the train. The engineer did not claim that he endeavored to stop or lessen the speed of the train, and swore that he could see ahead for blocks. He did not swear positively to giving any signals. The mule was knocked off on the east side of the track, corresponding to the side of the engine occupied by the engineer.

The judgment is affirmed.

TALIAFERRO, J., did not sit in this case.


author: RASBURiY, J.

text:
    AMERICAN NAT. INS. CO. v. BRIGGS.
    (Court of Civil Appeals of Texas. Dallas.
    May 3, 1913.
    Rehearing Denied May 17, 1913.)
    1. Appeal and Erbor (§ 285) — Motion fob New Tbial — Necessity — “Fundamental Ebboe.”
    Where, in an action on a life policy, the court sustained a general demurrer to defendant’s sole defense of fraud, which was equivalent to holding that the answer presented no defense to the policy, error, if any, in such ruling was fundamental within district court rule 71a (145 S. W. vii), providing that a motion for a new trial shall be filed in all cases where parties desire to appeal or sue out writs of error, unless the error complained of is fundamental.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1684-1690; Dec. Dig. § 285

    For other definitions, see Words and Phrases, vol. 4, p. 3006.]
    2. Insubance (§ 400) — Life Policy — Incontestability — Public Policy — Fraud.
    A clause in a life policy that it shall be incontestable for any cause after one year, though construed to bar a defense of fraud in obtaining the policy, is not contrary to public policy as tending to promote fraud in view of the facilities of the insurer for discovering the fraud within the time specified.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. § 400.]
    3. Insurance (§ 400) — Life Policy — Premium Payment During Insurability — Incontestability Clause.
    A life policy provided that it should not take effect until the first premium had been paid during insurability of insured, and also that the contract should be incontestable for any cause whatever after one year from the date of issue, provided premiums were duly paid. Held, that the incontestability clause included the clause providing that the policy should not take effect until the first premium had been paid during insurability; and hence where the premiums had been properly paid, and insured did not die during the year, and no proceedings were taken to cancel the policy for fraud, it was no defense to an action thereon thereafter that the policy was based on the fraudulent application, and that insured had not been insurable at any time.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. § 400.]
    Appeal from District Court, Limestone County; H. B. Daviss, Judge.
    Action by S. S. Briggs against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Kleberg & Neethe, of Galveston, and Kennedy & Blackmon, of Groesbeck, for appellant. C. S. Bradley and Bradley & Herring, all of Groesbeck, and W. A. Keeling, of Austin, for appellee.

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

   RASBURiY, J.

Appellee sued in the court below on a life insurance policy, issued by appellant October 12, 1910, to Angie Olive Briggs, by which appellant agreed to pay Simeon Singleton Briggs, her husband, $2,000 upon the death of the insured. Upon trial without jury judgment was for appellee for $2,540, with interest, the judgment including tlie statutory penalties and attorney’s fees provided for in case of failure to pay tlie amount of the policy within 30 days after demand. Article 4746, R. S. 1911. Appellee alleged in his petition that his wife, the insured, died November 30, 1911, and that demand for payment of the amount of the policy had been made and refused. The petition also alleged that the policy by its terms was incontestable for any cause whatever after one year from the date of issue, provided premiums were fully paid; further, that the policy had been in force more than a year and that all premiums thereon had been paid. Appellant answered by the general denial and specially, in substance, that the insured had all her life been a weak and delicate person and had been, during each year of her life, under the almost constant care of a physician and for five years prior to her death had been afflicted with consumption, a fact known and admitted by her and her family; that reputable physicians had advised her that she had consumption prior to her application for the policy of insurance sued upon, and that she was under treatment by physicians for said disease at the date of her application for said policy; that said disease was hereditary in her family, her grandmother and an aunt having died therewith, which fact was also known to the insured; that the insured falsely and fraudulently misrepresented and concealed from appellant the facts as to her physical condition, and by her answers and representations made at the time of her medical examination, and otherwise, induced appellant to believe that she was an insurable risk for the purpose of defrauding appellant; that by the policy sued upon the representations made by the insured in relation to her health were material warranties, and the policy would not have been issued had appellant been aware of their falsity; that because of said misrepresentations, and because the policy provided by its terms that appellant should not be liable until after the payment of one premium during insurability, no recovery could be had, etc. Appellee replied to the answer of appellant by general and special demurrer and other pleas not important to this appeal. The special demurrer was sustained by the court, although the judgment of the court in that respect is somewhat confusing since the decree alternately refers to the demurrers, the exception, and the exception and demurrer, but counsel in their briefs treat the judgment as referring to the special exception, and we shall do so. By sustaining the special exception all matter of defense pleaded by appellant was stricken out except the general denial. Upon trial of the case the policy of insurance set out in the pleadings was established, and it was shown that all premiums thereon had been paid.. The death of the insured and demand for payment of the policy, and a refusal to do so within 30 days after demand, was also shown, as well as the reasonableness of the attorney’s fees sought to be recovered, the penalties resulting as matter of course and requiring no further proof. Appellant offered to prove in detail all the facts pleaded as constituting its defense to a recovery, but the court excluded same in accordance with his action upon the demurrer already set out.

The first and preliminary question presented on this appeal is an objection by appellee to a consideration of any of the errors assigned, on the ground that appellant did not file a motion for new trial in the court below. Before the trial of this case the Supreme Court had adopted rule 71a for the district courts (145 S. W. vii), which provides that motions for new trials shall be filed in all cases where parties desire to appeal or sue out writs of error, unless the error complained of is fundamental, etc. We think the error complained of in this cause, if error at all, is fundamental, as defined in Astin v. Mosteller, 152 S. W. 495. As said in that case we regard the special demurrer sustained by the court below in this case as nothing more, in effect, than a general demurrer, and the action of the court in sustaining it was equivalent to holding that appellant’s answer presented no ground of defense to the policy of insurance sued upon. That being true, the action of the court should be reviewed, since'the sustaining of a general demurrer disposes of the cause of action itself, and it follows that if improperly sustained, it would be fundamental error, and, being fundamental error, comes without the requirement of rule 71a. Of course, if rule 71a of the district courts is inapplicable where the error is fundamental, it follows that so much of rule 24 of the Courts of Civil Appeals (142 S. W. xii) as requires assigned errors to be distinctly set forth in a motion for new trial in the court below is also inapplicable.

We come then to the merits of the appeal. All the assignments of error and the propositions asserted thereunder in one form or another challenge the action of the court below in sustaining the demurrer by which the defenses pleaded by appellant were stricken from the answer and in excluding the testimony to sustain the allegations of fact so eliminated. And the correctness of such action depends upon .the construction to be placed upon two provisions of the policy, one in the application for the policy and the other in the policy itself, each, however, a part of the policy since the application is by the terms of the policy made a part of the contract of insurance. By the provision in the application the insured agrees “that any policy issued hereon shall not take effect until the first premium has been paid during my insurability.” By the policy it is provided: “This policy and the application therefor shall constitute the entire contract between the insured and the company and shall be incontestable for any cause whatever after one year from the date of issue provided premiums are duly paid.” As stated, the policy had been in force more than a year at the death of the insured, and all premiums had been paid. The right to include in policies of life insurance a clause rendering such policies incontestable after a fixed period as an inducement to the insured to make the contract and its binding force as a contract is not and cannot be disputed, and it is the general rule that such a provision precludes any defense after the expiration of the stipulated period on account of statements warranted to be true, but which in point of fact were untrue and fraudulently made. Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1014; s. c., 29 Tex. Civ. App. 128, 68 S. W. 206; 25 Cyc. 873.

But appellaht contends that fraud vitiates all that it touches, and that it is opposed to public policy to enforce contracts conceived and born in fraud. Appellee’s fraud may be conceded in the instant ease, but the rule as stated by counsel may not be. On the contrary, it is well settled that the incontestable provision excludes any defense based upon the fraud of the insured after the expiration of the stipulated period; nor is such provision contrary to -public policy as authorizing and promoting fraud, since “it recognizes the right of the insurer, predieat-ed upon a vast experience and profound knowledge in such matters, to agree that in a stipulated time, fixed by himself, he can unearth and drag to light any fraud committed by the insured and protect himself from the consequences.”

It is a reasonable stipulation, operating in favor of both the contracting parties, and is calculated to induce diligence on the part of the insurer in examining into the truth or falsity of the statements made in the application and at the same time affords a reasonable period for such investigation. The benefits to the insured are obvious, since it assures him of the permanency of his investment, dependent wholly, after the expiration of the stipulated period, upon the prompt payment of his premiums. Citizens’ Life Ins. Co. v. McClure, 138 Ky. 138, 127 S. W. 749, 27 L. R. A. (N. S.) 1026.

Counsel for appellant, however, further contends that the provision that the policy shall be incontestable for any cause whatever, if it continue in force one year from its date, does not include exemption from liability under the provision in the application that the policy shall not take effect “until the first premium has been paid during my insurability,” the claim being that the incontestable clause does not mean that appellant shall be liable in case appellee possessed no “insurability” at the time the policy was issued. If, as contended by counsel, the meaning to be attached to said clause is that Mrs. Briggs should have been in the condition of health her application in fact represented her to be, otherwise there would be no li-. ability, we are nevertheless of the opinion that it also must fall before the incontestable clause, after the expiration of the year. The precise point has been decided by the Third Court of Civil Appeals in Mutual Reserve Fund Life Ass’n v. Payne, 32 S. W. 1063. The policy involved in that controversy contained an express provision against liability in case of suicide by the insured (as does also the policy in the instant case), and also contained the incontestable provision. The insured suicided. Among other defenses urged in a suit upon the policy was that fact. In disposing of the question the court say: “If the death had occurred * * * before the expiration of five years” (the stipulated period, after the expiration of which the policy should become incontestable), “the fact that the assured died by his own hand would' have been a good defense to the action; but, having occurred after five years from the date of the policy, it was no longer a cause upon which a defense to the action could be maintained.”

So, in the instant case, had the insured died before the expiration of one year after the issuance of the policy, all the defenses urged would have been available to the appellant. But after that period it occurs to us there was but one defense to the payment of the money, and that the failure of the insured to pay the premium. The agreement by appellant was that it would not contest the policy for “any cause whatever,” and any other construction of the clause than that which we have placed thereon would be to strike from the policy one of the vital inducements to the acceptance of the same and the .payment of the premiums thereon. While we are unable to see any conflict between the incontestable clause and the clause relating to insurability, yet if it be conceded that they are at cross-purposes, nevertheless the latter must .yield under the well-settled rule that in case of doubt, ambiguity, or conflict in the stipulations of insurance policies that construction will be adopted that will preserve to the insured all the benefits comprehended by the policy.

We conclude there was no error in the judgment of the court below, and it is affirmed.


author: FLY, C. J.

text:
    LANE, Comptroller, v. HEWGLEY.
    (Court of Civil Appeals of Texas. San Antonio,
    May 7, 1913.)
    1. Intoxicating Liquors (§ 109) — Reinstatement of License — Jurisdiction of District Court.
    Const, art. 5, § 8, as amended in 1891, giving district courts “such other jurisdiction * * * as may be provided by law,” authorizes Rev. Civ. St. 1911, art. 7443, empowering one aggrieved by action of tbe Comptroller in annulling a retail liquor license to bring suit against him in the district court to reinstate it.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 119; Dec. Dig. § 109.]
    2. Intoxicating Liquors (§ 109) — Reinstatement of Licenses — Appeal — Statutes.
    It is not necessary that Rev. Civ. St. 1911, art. 7443, empowering one aggrieved by action of the Comptroller in annulling a retail liquor license to bring .suit against him in the district court to reinstate it, expressly provides for an appeal; such suit 'being a civil action, and article 2078 providing that an appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 119; Dec. Dig. § 109.)
    3. Costs (§ 96) — Persons Liable — State Officer.
    Suit against the Comptroller to reinstate a retail liquor license annulled by him being to all intents and purposes one against the state, costs should be assessed against him as Comptroller, and not personally.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. § 380; Dec. Dig. § 96.]
    4. Judgment (§ 531) — Construction — Assessment of Costs — Persons Liable.
    Assessment of costs by the court against “said defendant,” previously described as “Comptroller of Public Accounts of the State,” evidences an intention to assess them against the ofiicer, and not the individual.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 975; Dec. Dig. § 531.]
    5. Appeal and Error (§ 742) — Assignments of Error — Propositions and Statements.
    • An assignment of error will be overruled; it being apparent that neither the proposition nor the statement thereunder has any connection with the assignment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.]
    6. Intoxicating Liquors (§ 109) — Licenses — Annulment — Suit to Reinstate — Evidence.
    In the absence of anything in the statute indicating it, the suit against the Comptroller, authorized 'by Rev. Civ. St. 1911, art. 7443, to reinstate a retail liquor license annulled by him is not required to be heard solely on the depositions taken under authority of the Comptroller, pursuant to sections 7436-7442, in the proceedings for the annulment.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 119; Dec. Dig. § 109.]
    7. Appeal and Error (§ 54®) — Review— Necessity of Statement of Facts.
    In the absence of a statement of facts, it cannot be said that there was error in admitting evidence of reputation of plaintiff in a suit to reinstate his retail liquor license annulled by the Comptroller, or if there was error that it did, with reasonable certainty, inflict substantial injury cn defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    8. Appeal and Error (§ 548) — Review-Necessity of Statement of Facts.
    In the absence of a statement of facts, the sufficiency of the evidence to support the verdict cannot be passed on.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    Appeal from District Court, Bexar County; J. L. Camp, Judge.
    Suit by M. W. Hewgley against W. P. Lane, Comptroller. Judgment for plaintiff; defendant appeals.
    Affirmed.
    See, also, 155 S. W. 348.
    B. F. Looney and W. A. Keeling, both of Austin, for appellant.

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

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

   FLY, C. J.

Appellee instituted this suit against appellant, alleging that he had been granted a license to retail liquor near the city line of San Antonio for a period of one year, commencing on or about July 9, 1912; that on or about August 23, 1912, appellant, claiming to have information that appellee had violated the law as to the sale of liquors, issued a commission to a notary public to take testimony in regard to the charge; that appellant found from such testimony that appellee had violated the law on or about August 15,1912, by selling liquor to Nettie Cochran and Ida Garretson, girls under the age of 21 years, and in permitting them to enter and remain in his place of business, and thereupon annulled the liquor license and the place of business was closed. It was further alleged that appellee had not violated the law as found by appellant, and he prayed for reinstatement of the liquor license. Appellant filed a general demurrer and general denial. The cause was submitted on special issues at the instance and request of appellant, and the jury having answered that the sale of liquor was not made to the minors named judgment was rendered, annulling and setting aside the order of appellant forfeiting the liquor li-cénse of appellee. Appellant gave notice of appeal, and obtained an order extending the time in which to file a statement of facts, but if such statement was. prepared by appellant and approved by the court it has not been filed in this court.

In an opinion on a motion to dismiss this appeal, it was held by this court that it has jurisdiction to entertain this appeal, under article 7443, Rev. Stats. 1911. The Constitution (article 5, § 8), as amended in 1891, gives district courts, in addition to their enumerated powers, “general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution and such other jurisdiction original and appellate, as may be provided by law.” That authority is ample to empower the Legislature to give district courts jurisdiction over suits like the pending one. The law gives the Court of Civil Appeals appellate jurisdiction over all civil cases of which the district courts have original or appellate jurisdiction. ■We conclude, as in our former opinion, that this cause is a civil case, and that this court has appellate jurisdiction over it. We cannot believe that it was ever contemplated that the district court should he vested with the authority to set aside and render nugatory the acts of the Comptroller exercised in the control and regulation of the liquor traffic, or have the power given him, on the other hand, to sustain the actions of that official, and appellate courts have no revisory powers over his judgment and decrees. That court is not granted such unbounded power over the rights of the citizen in other cases, and it will not be presumed that it was intended to clothe it with such authority in cases of this character. It is true that the act giving the right to sue in the district court does not say that appeals may be taken from the judgments of the district court in relation thereto, and neither does it so provide in many other cases in which the right to sue is given. The act of the Comptroller in unlawfully revoking a liquor license is an invasion of the civil rights of the citizen, against which he is given by statute the right to invoke the aid of the district court, and when he does so his suit is a civil action, as is the case with other actions where he seeks to protect his rights.

Appellee was authorized by law to “bring a suit,” and a suit “is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes may be various; but if a right is litigated in a court of justice the proceeding by which the decision of the court is sought is a suit.” Weston v. Charleston, 2 Pet. 464, 7 L. Ed. 481; Kohl v. United States, 91 U. S. 367, 43 L. Ed. 449. The action must be one in a court of justice, and not one before some officer, and in the act authorizing the institution of this suit it is provided that it can be brought “in the district court.” That provision easily distinguishes this case from the cases of Hernandez v. State, 135 S. W. 171, and Lane v. Schultz, 146 S. W. 1012, decided by this court. In the first named the appeal was from the action of the county judge, and there being no law permitting an appeal in such a case, and not being a suit, no such right could be inferred. This court held that the action of the county judge was an administrative and not a judicial one, and that no property right was involved, and that no court was given authority to review the action of the county judge. In this ease, however, whether property rights are involved or not, the aggrieved party has been given the right to review the action of the Comptroller by a suit in the district court.

In the case of Lane v. Schultz an injunction was sought to restrain the Comptroller from interfering with the business of a liquor dealer, and it was held that if the action of the Comptroller was one “that can be referred to the execution of the powers granted to him by the act'the proceeding prescribed by section 9 [article 7443] was the sole remedy that plaintiffs had to set it aside.” This suit has been brought under the direct authority of the law, and being a suit, and necessarily a civil suit, and not a criminal action, this court clearly has jurisdiction of it, because it has appellate jurisdiction of all civil cases appealed from the district court; and it is further provided in article 2078, R. S. 1911, that “an appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases.” A civil case is a proceeding in a court of justice, in which the plaintiff demands, as against the defendant, the enforcement or protection of a private right or the prevention or redress of a private wrong. This is undoubtedly a civil action, and, as such, appealable to this court.

It has been held by the Texas Supreme Court that a suit against the head of a state department is to all intents and purposes a suit against the state. Stephens v. Railway, 100 Tex. 177, 97 S. W. 309. That suit was against the Comptroller, and consequently, this suit being against the Comptroller it can only be maintained by virtue of the authority given in article 7443. In that article no provision is made for the assessment of costs, and it is complained that the trial court should not have assessed the costs against W. P. Lane as an individual, but as Comptroller. It certainly never was contemplated that an officer commanded to do a certain thing should be made to pay the costs if his action is reversed by a court of justice; for such a rule would bankrupt an officer who should happen to be very vigilant and zealous in following the trail of offenders against liquor traffic laws, and who might not be well trained in weighing evidence and drawing the proper deductions therefrom. However that may be, if in suing the Comptroller appellee sued the state of Texas, wittingly or unwittingly, the individual who happens to be Comptroller should not be compelled to pay the costs of the spit, but the real party should be forced to respond. The state having authorized the suit should bear the burden, as would any other litigant. United States v. Schwalby, 8 Tex. Civ. App. 679, 29 S. W. 90. However, the court evidently intended to assess the costs against the officer, and not the individual, because they are assessed against “said defendant,” who prior to that is described as “Comptroller of Public Accounts of the State of Texas.”

Appellant, after referring to the action of this court on a motion to dismiss this appeal, states: “On account of the decision of this court on said motion, appellant deems it unnecessary to copy into his brief his first assignment of error,” and under the heading “Appellant’s Second Assignment of Error” proceeds to copy the first assignment of error. That assignment is as follows; “The court erred in overruling the defendant’s general demurrer, because the statute which attempts to authorize the bringing of this suit in the district court of Bexar county and the statute upon which this proceeding is based is invalid, and is of no force and effect and cannot confer jurisdiction upon this court, and this court is without power and authority to hear and determine this kind of a case on account of the indefiniteness and vagueness of said statute, and because said statute wholly fails to prescribe any procedure or rules by which the court is to be guided in the trial of a ease of this nature.” Under the assignment is one proposition, as follows: “This action being a special proceeding brought under article 7443 of the Revised Statutes of 1911, for the purpose of allowing the court to review the action of the Comptroller, and said statute containing no provision for a new trial by jury, the hearing should be had by the judge without the intervention of a jury.” It is apparent that the proposition has no connection whatever with the assignment of error, nor has the statement thereundef. The assignment will be overruled.

In articles 7436 to 7442, inclusive, R. S. 1911, the Comptroller is clothed with authority to revoke licenses to retail liquor, and the manner and method thereof are prescribed. The manner of taking the necessary evidence is set out, and the Comptroller given authority to act on such evidence so taken. In article 7443 any person aggrieved by the action of the Comptroller in vacating, annulling, and rescinding any such license is authorized to “bring suit in the district court of the county of his residence in Texas against the Comptroller to reinstate such license.” It is the contention of the appellant, through the third assignment of error, that no evidence should have been heard in the district court on the trial of the suit except the depositions taken under and by the authority of the Comptroller. The testimony objected to is not set out in the bill of exceptions, only the conclusions of the appellant, based on the testimony being therein contained; and there being no statement of facts filed in this court we are unable to determine whether the evidence could have had any influence in the ease or not. It may have been utterly immaterial. However, we are of opinion there is nothing in the statute authorizing the Suit against the Comptroller that indicates that the court should hear only the evidence taken by the Comptroller. The law in many instances would offer no redress if the evidence was confined to the testimony taken by or for the Comptroller.

The fourth assignment of error is based on an objection to evidence of the reputation of appellee. In the absence of a statement of' facts, this court is unable to see that the court erred in admitting the evidence, and if it did err that such error did, with reasonable certainty, inflict substantial Injury on appellant. McCarty v. Wood, 42 Tex. 39; Lockett v. Schurenburg, 60 Tex. 610; Railway v. Edwards, 75 Tex. 334, 12 S. W. 853; Railway v. Lochlin, 87 Tex. 467, 29 S. W. 469.

The sixth assignment of error is overruled. This court cannot pass on the sufficiency of the evidence to support the verdict, in the absence of a statement of facts. It is true that appellant quotes largely from testimony of different witnesses, but we know not “whence it cometh and whither it goeth.” We have seen no statement of facts, and consequently cannot consider assignments based thereon. ’

The judgment will be affirmed; and it is ordered that neither the costs of this court nor of the lower court shall be_ assessed against W. P. Lane individually, but only against him as Comptroller of Public Accounts of the State of Texas.