author: YANTIS, J.

text:
    BARNHART v. KANSAS CITY, M. & O. RY. CO. OF TEXAS.
    (No. 2446.)
    (Supreme Court of Texas.
    March 15, 1916.)
    1. Trial @=> 194(19) — Instructions — Invading Province of Jury.
    In an action for injuries to a servant, an instruction that the burden is on the defendant to show its defense of assumed risk by a preponderance of the evidence, no matter by which side adduced, to be considered in its entirety, is not objectionable as invading the province of the jury or requiring the jury to consider all the evidence when it was within their province to exclude any portion from their consideration.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 466; Dee. Dig. @==>194(19).]
    2. Master and Servant @=>265(13) — Injuries to Servant — Burden oe Proof — Assumption of Risk.
    In an action for. injuries to a servant, the burden is on the employer to show its defense of assumption of risk.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 892, 907; Dec. Dig. @=> 265(13).]
    3. Master and Servant @=>295(1) — Injuries to Servant — Assumption of Risk —Instructions — Duty of Servant.
    Where the court has fully charged in behalf of a defendant railroad on the defense of assumed risk, it was proper to instruct that plaintiff, in entering the defendant’s employ, had the right to assume that the railroad track was free from obstruction so near the track as to expose him to danger, and he was not required to make any investigation or examination to see if it was free from obstruction.
    [Ed. Note. — Por other eases, see Master and Servant, Cent. Dig. §§ 1168, 1169, 1179; Dec. Dig. @=>295(1).]
    4. Master and Servant @=>226(1) — Injuries to Servani^-Risks Assumed — Negligence of Master.
    A servant assumes the risk ordinarily incident to his employment, but not the risks arising from the master’s negligence in failing to furnish a safe place to work, unless tlie danger is obvious and he has actual knowledge thereof.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 659, 660; Dec. Dig. @=> 226(1).]
    5. Master and Servant @=>100(1) — Injuries to Servant — Assumption of Risk —Express Contract — Validity.
    An application by an employé entering the service of a railroad reciting that there are numerous obstructions which will endanger his life and limb and that he assumes the risk is void as against public policy.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 166; Dec. Dig. @=> 100(1).]
    6. Master and Servant @=>291(1) — Injuries to Servant — Instructions — Assumption of Risk.
    An instruction that an application by the employé of a railroad assuming the risk of injury from obstructions is void and should be considered for no purpose except as it shows that plaintiff knew of the danger and risks arising from the proximity of the obstruction, which caused his injury, to the track of the defendant is not objectionable as tending to minimize the effect of the document as evidence of notice of the existence of the obstruction in question.
    [Ed. Note. — Por other eases, see Master and Servant, Cent. Dig. § 1133; Dec. Dig. @=> 291(1).]
    7.Continuance @=>26(1) — Grounds — Absence of Witness — Discretion of Court.
    Where an application for continuance to procure a witness recited that defendant’s counsel had the impression that the case would not be called at the time it was, but did not show that the evidence to be obtained from him could not have been obtained from other sources, and in fact the ease was called on the day it had been set, and the witness had not been subpoenaed, the denial of the continuance was not an abuse of discretion.
    [Ed. Note. — Por other cases, see Continuance, Cent. Dig. § 74; Dec. Dig. @=>26(1).]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by David Barnhart against the Kansas City, Mexico & Orient Railway Company. The Court of Civil appeals (145 S. W. 1049) reversed a judgment for plaintiff, and he brings error.
    Judgment of Court of Appeals reversed, and judgment of district court affirmed.
    Hardwicke & Hardwicke, of Ahilene, Wood-ruff & Woodruff, of Sweetwater, and Theodore Mack, of Pt. Worth, for appellant. H. G. McConnell, of Haskell, and H. S. Garrett and Blanks, Collins & Jackson, all of San Angelo, for appellee.
   YANTIS, J.

The plaintiff in error, David Barnhart, recovered a judgment in the district court of Nolan county, Tex., for personal injuries received by him while working as a brakeman for the defendant in error in its yards at Sweetwater, Tex. At the particular time of the injury which was received by him he was descending a ladder on the side of a box car, and while doing so he came in contact with an iron standpipe several inches in diameter which had been constructed by the defendant in error near the track on which the plaintiff in error was riding. The injury resulted in the amputation of his arm. He alleged that the defendant railway company was guilty of negligence for a failure to exercise ordinary care to furnish him a reasonably safe place in which to work, in that it constructed said standpipe in such close proximity to its track along which plaintiff was required to discharge his duties as to bring him in coutact therewith, and that in the exercise of ordinary care the defendant railway company should have placed the same a sufficient distance from the track to avoid injuring him while engaged in the discharge of his duties; that by reason of this negligence on the part of said railway company, while descending said ladder in the discharge of his duties, he came in contact with said standpipe, and was thereby thrown from said ladder, and fell under the moving train, causing the Injuries complained of.

The defendant railway company answered with a general denial; also with a special denial that the standpipe had been erected or permitted to stand in close proximity to its tracks; that said standpipe was erected by it for the purpose of obtaining water with which to operate its engines; and that it was properly constructed in said yards, and was erected a reasonably safe distance from each of its tracks. The defendant railway company further alleged that, if Barnhart did come in contact with said standpipe, it was the result of his own negligence in projecting his body an unreasonable and unnecessary distance from the side of the car. The defendant railway company further pleaded as one of its defenses that the injury which was received by Barnhart was assumed by him as one of the risks ordinarily incident to his employment. It further pleaded as another defense that the location of the standpipe was patent and obvious, and that the plaintiff had observed the same, and was familiar with its location, and that he expressly assumed the risk of his injuries. The defendant in error offered no evidence in support of its defenses thus pleaded, except such as may have been adduced by the plaintiff himself while testifying on the witness stand in his own behalf, and Barnhart’s application for employment, which was introduced by the defendant in error, by which Barnhart agreed that he would be exposed to great danger in the course of his employment, and that he assumed for himself the risk of such danger.

The case was tried by a jury, and Barn-hart was allowed damages. The case was submitted to the jury on a general charge, and not upon special issues. Prom the judgment of the district court the defendant railway company appealed to the honorable Court of Civil Appeals for the Second District. In that court the case was reversed and remanded; that court sustaining several of the assignments of error presented therein by the defendant railway company. One of its holdings was that the following portion of the court’s main charge was erroneous:

“You are further charged that the burden is upon the defendant to show its defense of assumed risk by a preponderance of the evidence, no matter by which side adduced, to be considered in its entirety.”

The honorable Court of Civil Appeals held in relation to said charge that it was erroneous in that it commanded the jury to consider the evidence in its entirety, and thereby compelled the jury to consider all the evidence, when it was within'their province to exclude any portion of the evidence from their consideration. This court granted a writ of error on the application of Barn-hart, on the ground of conflict; said holding being in conflict with the holdings of other Courts of Civil Appeals in the cases of M. K. & T. Ry. Co. v. Rothenberg, 131 S. W. 1157; Railway v. Worcester, 45 Tex. Civ. App. 501, 100 S. W. 990; Railway v. Lester, 84 S. W. 404; and Electric Co. v. Murray, 32 Tex. Civ. App. 226, 74 S. W. 51.

We think the honorable Court of Civil Appeals was in error in its holding in this case on said question. We do not think the court’s direction to the jury, contained in said charge compelled the jury to give effect to any portion of the evidence. Clearly it would have been error to do so. The court commanded the jury to consider the evidence in its entirety, no matter by which side adduced. The plain purpose of this charge was to protect the defendant railway company from an injustice which might otherwise have resulted to it. Without this charge the jury might have conceived it to be their duty to exclude, when considering the defenses, any evidence not introduced by the defendant. The defendant had specially pleaded the defense of assumed risk in two separate pleas, and in two different forms— one as a risk ordinarily incident to the employment; the other as a risk that was obvious, and known to Barnhart. It had not placed a witness upon the stand to establish either of said defenses. It contends now, and had a right to contend in the trial court, that a portion of the evidence of the plaintiff himself was sufficient, in connection with Barnhart’s application and contract of employment, to establish said defenses. Yet the jury, unless specially instructed upon it, might have fallen into the error of excluding, while considering such defenses, the evidence given by the plaintiff himself, because he was not introduced as a witness by the defendant railway company. It was to guard against this that the trial court, in a spirit of fairness towards the defendant in error, charged the jury to consider the evidence on the question of assumed risk, no matter by which side adduced, in its entirety. We do not think the expression “to be considered in its entirety” in any way invaded the province of the jury. It was not a command to them to give effect to any portion of the evidence. It was merely a command to consider the evidence. This is not equivalent to a direction, that the jury should give effect to the evidence in its entirety. The charge allowed the jury to discard any of the evidence which they might believe, after considering it, was entitled to no weight, and to exclude all testimony that the jury might consider was not credible, and at the same time to give effect to any evidence they considered of value. It would seem to us difficult, if not impossible, for the jury to pass upon the credibility of the witnesses, and the weight to be given to their testimony, as the law requires them to do, without first considering it. In considering the evidence under this charge they were allowed the ut-. most freedom in giving or not giving effect thereto in arriving at their verdict. It is worthy of note that the charge complained of is immediately followed by that portion of the court’s charge which told them that they were the “sole judges of the credibility of the witnesses, the weight to be given to the testimony, and of the facts proved.” We think the charge complained of, when properly construed, and especially in the light of the specific instruction to the jury that they were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony, was not misleading, and that, instead of being harmful to the defendant railway company, by its plain meaning it was beneficial to it in directing the jury to consider in behalf of the defendant some of the evidence that was introduced by the plaintiff which they otherwise might not have felt it their duty to do.

The further contention is made by the defendant in error that said charge is erroneous in placing the burden of proof upon the defendant to show its defense of assumed risk. This contention was made by counsel for the defendant in error in oral argument, which has been supplemented by an exceptionally able printed argument. We have given the most careful attention to the question, and have reached the conclusion that it is without merit. The defendant in error voluntarily pleaded assumed risk as a defense, and the burden was upon it to establish its defense. With the plea and defense of assumed risk it sought, as was its legal right to do, to overcome the plaintiff’s charge against it of negligence. It sought to prove by this defense that the injuries did not result to the plaintiff in error from its negligence. This defense of assumed risk, if established, would defeat a recovery by the plaintiff in error. Under such circumstances we do not think that the burden of proof was upon the plaintiff, as contended by the defendant in error, to disprove its defense of assumed risk. It is true that, if the plaintiff’s own evidence established that his injuries resulted from a risk which the law required him to assume, he would be denied a recovery. But this does not arise because the burden of proof was upon him to disprove assumed risk, but the defeat of his recovery in such instance is required because he did, in fact, prove that his injuries resulted from assumed risk. The question has been passed upon many times in this court where it arose out of the question of contributory negligence. The earlier cases tended to hold that the burden of proof was upon the plaintiff in a negligence case to prove that his injuries did not result from contributory negligence, but the later uniform holdings of this court upon that question have been that, though the plaintiff is required to remove or overcome a serious taint of contributory negligence which his own case has developed, yet the burden of proof does not shift to Mm, but is properly placed upon the defendant. He may be denied a recovery because his own case shows that his injuries resulted from contributory negligence, but this is because of that fact, and not because the burden of proof was upon him to disprove contributory negligence. If he presents a case which does not suggest contributory negligence on his part, he need not affirmatively establish, in order to recover, that his injuries did not result from his own contributory negligence. It remains the privilege, however, of the defendant in such a case to plead as a defense that his injuries did result from contributory negligence. But when thus voluntarily presenting the issue as a defense in its favor the defendant in a negligence case has the burden of proving such defense, and the Court properly so charges the burden upon it. Houston & Texas Central Ry. Co. v. Harris, 103 Tex. 425, 128 S. W. 897; Houston & Texas Central Ry. Co. v. Anglin, 99 Tex. 354, 89 S. W. 966, 2 L. R. A. (N. S.) 386. The rule should be the same as applied to the defense of assumed risk. As the reason is the same, the rule should be the same; and, when the defendant in a negligence case has voluntarily pleaded assumed risk as a defense to the plaintiff’s case, the burden should be upon it to establish its defense, and the court should so direct the jury.

The honorable Court of Civil Appeals held that there was error in giving the plaintiff in error’s special charge No. 2. We think it was proper to give this charge. The substance of it was that the plaintiff, in entering the employ of the defendant, had the right to assume that the track of the defendant company was free from obstruction so near the track as would expose him to danger, and that he was not required to make any investigation or examination of the track to see that it was free from obstruction along and near thereto. The court had charged fully in behalf of the defendant in error on its defense of assumed risk. We think the duty then arose, in order that the jury might not be misled, for the court to advise them that it did not devolve upon the plaintiff to make an inspection of the place wMch had been provided him in which to work to ascertain if the defendant in error had been guilty of negligence in placing some obstruction so near the track as that he might be injured. The plaintiff had the right to rely upon the master to furnish him a safe place to work, and he need make no inspection to ascertain whether the master had discharged this duty. He assumed the risks ordinarily incident to Ms employment, but he did not assume the risks arising from the master’s negligence in failing to furnish a safe place in which to work, unless the danger was obvious, or uMess he had actual knowledge thereof. We think the charge was proper in form, and appropriate, under the evidence, to be given.

On entering the employment of the defendant in error Barnhart signed an application containing, among other things, the following stipulation:

* * * As chief dispatcher has this day informed me of the duties connected with the employment I am about undertaking, viz., that of condr. or brakeman, and has explained to me that the performance of said duties will expose me to great danger, the risk Of which I assume for myself, and that I must use proper and constant care to avoid injury to myself and others. I have received a copy of the time table containing the printed rules and regulations of said railway, with which I am to make myself familiar, and by them and such additions thereto as may be made from time to time, agree to be governed. And I hereby acknowledge that I have been notified that there are numerous bridges, buildings, tunnels, viaducts, stockyard chutes, platform and coal chutes and other obstructions now located and others may be constructed from time to time which will endanger my life and limb, and I agree in consideration of my employment to familiarize myself with same and use due care for my safety without further notice from the railway company, and I accept the notice from said railway company that few, if any, of the aforesaid buildings or obstructions wifi, clear a man riding on the top or side of a car, and that I am to use constant care for my safety in working about same.”

The court charged the jury, in substance, that said application was void, and could be considered by the jury for no purpose, except in so far as the same might show or tend to show that plaintiff knew of the danger or risks, if any, arising from the proximity of the standpipe to the track of the defendant. It is contended by the defendant in error that this charge was erroneous because misleading, and having a tendency to minimize the effect of the document as evidence of notice to the iffaintiff in error of the existence of the standpipe. The honorable Court of Civil Appeals sustained this view. We think this was error. We do not think there is any merit in the contention of the defendant in error > in relation to this charge. It is the settled law of Texas that a contract of this nature is void because against public policy. The effect of this contract was to relieve the defendant in error from damages growing out of its negligence in placing an obstruction too near the track, and to require its servant to assume the risk of injury. This would be transferring by contract the burden which rested in law upon the defendant in error to the shoulders of its employé. It would be to entirely relieve the defendant in error from the consequences of its tortious act, and to impose by contract upon its servant the burden of bearing the loss which did not by law rest upon him, but by the law of the land did rest upon the defendant in error. The injustice of this is so abhorrent that it is held to be in violation of public policy and void. This being true, it follows that it was not error to charge the jury that, so far as the contract imposed such purpose, it was void. If the court had not so charged the jury, what would have been the probable result upon Barnhart’s case? It is plain to us that the jury might probably have decided against him, on the illegal ground that he had contracted his cause of action away; that he had agreed to assume the loss which he was then suing to recover. It was to avoid this injustice which made it incumbent upon the trial court to instruct the jury that said contract was void, except in so far as it tended to show that the plaintiff knew of the danger or risk arising from the proximity of the standpipe to the track.

Very earnest complaint is made here' by the defendant in error against the action of the trial court in overruling its application for a continuance. The application for a continuance presents only an equitable showing, and does not purport to be a statutory application. It fails to show that Webster, the witness desired by it, had been summoned as a witness, or that any process had ever issued for him. It fails to aver affirmatively that his evidence was material. It fails to allege his place of residence. It fails to show that it had used due diligence to secure his attendance upon the trial, and fails to allege any facts whatever from which it might be concluded that it had exercised due diligence. It only states that he was called to Kansas City on April 12th, where he was a witness in a civil suit against it pending at such place. It does allege that he was defendant in error’s chief engineer, and that the defendant expected to prove by him that the standpipe was a usual and proper appliance for the purpose for wliieh it was used, and constructed at a safe distance from the cars and ladders, and that there was ample space between said cars and standpipe to enable plaintiff to pass between said cars and standpipe with safety if he had used ordinary care in the performance of his work. It does not allege what he would have testified as to the distance between the standpipe and the track. It does allege that it was impossible for the defendant in error to procure such testimony as desired from any other source.

The main insistence is that the defendant in error’s counsel were taken by surprise by the court in calling the case for trial at the time it did. It is alleged in the application for a continuance that the case had been pending about six months prior to the trial, but that there were several other cases against the defendant on the same docket, but none of them were tried during the first week of court, but that several of the cases were reset for April 11th, April 12th, and April 14th, and that “no resetting of the Barnhart case having been brought at that time to the notice of the defendant, or any of its counsel, but, on the contrary, counsel for the defendant were of the impression that the court had reset the Barnhart case for the 14th, with directions that it should follow in regular order the Hall and Polk cases, and so understood the court to announce” ; that the defendant’s counsel acted upon such assumption and made no preparation for trial of the Barnhart case during that week, because they were under the impression that the other cases would be tried first, and that, if they were, it would not be possible to try tbe Barnhart case that week.

The application nowhere alleges that the case had not been set for the day upon which it was called for trial, but the allegation is that no resetting had been brought to their notice, and that they were under the impression that the case had been set for the 14th. The record shows that the application for a continuance was presented on April 13th, and the trial was not had until April 14th. It is probable that accurate measurements of the distance between the standpipe and the track could have been taken after the adjournment of court on the 13th of April, or before court convened the next morning. It appears from the record that the plaintiff proved by 6. P. Russell that he had taken such measurements, and that the standpipe was 53 y2 inches from the south rail of the track, and that the average box car would extend over the rail on either side about 30 inches, not including the step.

The court’s explanation to the bill of exceptions which presents this question shows that the case was reset in the presence of counsel for the defendant for the very day it was called for trial. It also shows that the defendant’s witness J. IT. Webster was never subpoenaed as a witness, and that he was in attendance upon court, and left just the day before the trial of the ease. The application was addressed, as an equitable application, and not a statutory one, to the discretion of the trial court, and, there being nothing to indicate an abuse of that discretion, we find no error in its refusal.

We have carefully examined the other questions presented for review, and find no reversible error in the rulings of the trial court. For the errors indicated by the honorable Court of Civil Appeals in reversing the case, its judgment should be reversed, and the judgment of the district court should be affirmed; and it is so ordered.
      @=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CASSADY et al.
    (App. No. 9380.)
    (Supreme Court of Texas.
    March 29, 1916.)
    Master and Servant <@=>265(5) — Injuries to Servano-Negligence — Proof by Circumstances.
    The circumstances of an accident to an em-ployé may themselves furnish proof of the employer’s negligence.
    [Eel. Note. — For other cases, see Master and Servant, Cent Dig. §§ 8S1, 898, 955; Dec. Dig. <©=>265(5).]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Emma A. Cassady and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appealed to the Court of Civil Appeals, which affirmed the judgment. 175 S. W. 796. To review its judgment, defendant petitions for writ of error.
    Writ refused.
    C. C. Huff, A. H. McKnight and J. M. Chambers, all of Dallas, and Garnett & Gar-nett, of Gainesville, for plaintiff in error. Stuart, Bell & Moore, of Gainesville, for defendants in error.
   PHILLIPS, C. J.

We deem it proper to say that we do not subscribe to the statement in the opinion of the honorable Court of Civil Appeals that it is a general holding of this court that the doctrine of res ipsa loqui-tur applies, as a rule, in cases of injury sustained by a servant in the services of a master. McCray v. Railway Company, 89 Tex. 168, 34 S. W. 95, recognizes that in such cases the doctrine does not apply. We think the facts of the present case bring.it within the rule, equally announced in' McCray v. Railway Company, that the circumstances of a particular accident may themselves furnish proof of negligence; and it is for this reason that the writ of error is refused.


author: PHILLIPS, C. J. HAWKINS, J.

text:
    WAPLES et al v. MARRAST.
    (No. 2826.)
    (Supreme Court of Texas.
    March 22, 1916.)
    1. Elections <©=>120 — Primary Election — Statute — Constitutionality.
    That the Presidential Primary Act (Acts 33d-Leg. e. 46 [Vernon’s Sayles’ Ann. Civ. St. 1914, .art. 3175a]), is impracticable, unworkable if literally observed, and deficient for failing to provide for the legal number of presidential electors does not render it unconstitutional.
    [Ed. Note. — For other cases, see Elections, Dec. Dig. <@=>120.]
    2. Elections <@=>126(1) — Primary Elections —Authority oe Legislature.
    The Legislature has authority to require the holding of a primary election by the political parties, of the state, to enable their members to vote for party nominees for elective offices, state or national, and to express their preference in the selection of delegates to party conventions.
    [Ed. Note. — For other cases, see Elections, Dec. Dig. <@=>126(1).]
    3. Elections <©=>21 — Classification oe Parties — Presidential Primary Law.
    The Presidential Primary Act, applying only to political parties polling 50,000 votes for Governor, is not invalid because it applies at present to only the Democratic party, since the Legislature had the right to reasonably classify in respect to parties subject to the law, which cannot be regarded as having been enacted for the present day alone.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. § 15; Dec. Dig. <@=>21.]
    4. Taxation <@=>2 — Public Purpose — “Tax.”
    The sovereign power of the state may be exercised in the levy and collection of “taxes,” burdens imposed for the support of the government, only on condition they shall be devoted to public purposes.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 2; Dec. Dig. <@=>2.
    For other definitions, see Words and Phrases, First and Second Series, Tax.]

      5. States <®=>1 — Powers as Sovereignty.
    The powers of the state as a sovereignty exist only for governmental purposes.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 1; Dee. Dig. <§=>1J
    6. Elections <§=>120 — Presidential Primary Law — Constitutionality — “Political Party” — “Public Purpose.”
    The Presidential Primary Act, imposing upon political parties polling over 50,000 votes for Governor the duty to hold a presidential primary, and providing that the expense of the election shall be paid out of the county treasury. is violative of Const, art. 8, § 3, declaring that taxes shall be levied and collected by general laws and for public purposes only, since a “political party” is merely a body of men, associated for the purpose of furnishing and maintaining the prevalence of political principles or beliefs in the public policies of the government; and the conduct of an election, whereby a political party selects its candidate, is not a “public purpose.”
    [Ed. Note. — For other cases, see Elections, Dec. Dig. <§=>120.
    For other definitions, see Words and Phrases, First and Second Series, Political Party; Public Purpose.]
    Certified Questions from Court of Civil Appeals, First Supreme Judicial District.
    Petition for mandamus by E. K. Marrast against Paul Waples and others, composing the Democratic State Executive Committee.
    The writ was awarded, and respondents appealed. On certification of questions from the Court of Civil Appeals.
    James B. Stubbs, of Galveston, Cecil H. Smith, of Sherman, and Walter Collins, of Hillsboro, for appellants. John W. Campbell, Chas. H. Theobald, Co. Atty., and Walter Cranford, and Marion J. Levy, Asst. Co. Attys., all of Galveston, for appellee.
   PHILLIPS, C. J.

The case involves the constitutionality of what is familiarly known as the Presidential Primary Act of the Thirty-third Legislature, Chapter 46, General Laws of 1913. The terms of the act require the holding of precinct primary elections in the counties of the. State on the fourth Tuesday in May in presidential election years by the respective political parties of the State polling as many as 50,000 votes for their respective candidates for Governor at the last preceding general election, — obedience to it being optional with parties so polling a' less number of votes, — for the expression by their qualified electors of their preference of candidates for the party nomination to the offices of President and Vice President of the United States and presidential electors, and likewise their choice of party candidates for the places of delegates to the National conventions of such parties.

The expense of such primary election of a party whose candidate for Governor at the last preceding general election received as many as 50,000 votes, it is provided by the act, shall be paid out of the county treasury of each county, no provision being made for the expense of the primary election of other parties, if held under the act

It is further provided that the votes cast at the election shall be counted, canvassed and returned as required by the general primary law of the State in relation to party nominations for the offices of Governor and lieutenant Governor.

• In respect to the number of presidential electors to be nominated in the primary election, the act is deficient. It provides only for the nomination of one elector from each congressional district, whereas the State is required to elect at the general election a number equal to its whole number of Senators and Bepresentatives in Congress.

Under the agreed facts of the case, the operation of the act at the present time is to require only the Democratic party to hold the primary election provided for, since it is, at present, the only party in the State whose candidate for Governor at the last general election received as many as 50,000 votes. It is furthermore agreed that the cost of such a primary election as the act requires, will be not less than $300,000, and will probably exceed that amount.

The requirement of the general primary law in respect to the time for the canvassing by the state executive committee of the votes cast for candidates for party nominations for Governor and Lieutenant Governor, is that it shall be at a meeting held on the second Tuesday in August of the election year. The Democratic National Convention, it appears from the statement of the agreed facts, has been appointed to meet on June 14, 1916. If the primary election should be held and the act literally observed, the votes cast for delegates could not be canvassed in time for that convention.

The suit was a' mandamus proceeding by E. K. Marrast to require the appellants, who compose the Democratic State Executive Committee, to hold the primary election contemplated by the act. In the trial court the writ of mandamus was awarded, the learned trial judge in an able written opinion holding the act valid against the attack made upon it by the respondents. An appeal was prosecuted to the honorable Court of Civil Appeals, which has certified to us the fol-following questions: .

1. Is the Act, approved March 27, 1913, Art. 3175a Vernon’s Sayles’ Texas Civil Statutes, void upon the ground that it is in conflict with one or more of the provisions of the Constitution of this State or of the Union as is claimed by appellants?
2. If not void, has the State Democratic Executive Committee authority to disregard its requirements in so far as they are impracticable and to supply such regulations as they may deem proper and necessary?

We shall consider only the question of the constitutionality of the act. That it is impracticable, unworkable if literally observed, and is deficient because of the omis-si on to provide for the nomination of the legal number of presidential electors, are not matters which, if true, affect the power of the Legislature to enact the law.

The authority of the Legislature to require the holding of a primary election by the political parties of the State for the purpose of enabling their members to vote their choice for party nominees for elective offices, whether State or National, and likewise express their preference in the selection of party delegates to party conventions, is undoubted. The legislative right in such an enactment to make, according to their numerical strength, a reasonable classification in respect to the political parties subject to the law, is equally clear. The act is not invalid under the classification adopted because it applies at the present time to only the Democratic party. It is not to be regarded as having been enacted for only the present day. It was within the province of the Legislature to determine whether the numerically weaker parties should be relieved from its compulsory observance; and, if so, to provide a classification according to the voting strength of the parties. The selection of a voting strength of 50,000 votes as the test does not create an unreasonable classification, and the act is not, upon this account, to be overturned.

The only serious constitutional question involved by the act is its requirement that the expense of the primary election shall be borne out of the public treasury of the counties. This presents, nakedly, the question, whether it is within the power of the Legislature to devote the public revenues of the State to the payment of the primary election expenses of political parties. The general primary law relating to the nomination of party candidates for state, district and county offices imposes such expense upon the candidates. Article 3104, Rev. St. 1911. In the legislative history of the State, this is the first effort, so far as we are aware, to make the expense of a party election a charge upon the public revenue.

Section 3, Article 8 of the Constitution declares :

“Taxes shall be levied and collected by general laws and for public purposes only.”

By section 52, Article 3 it is provided:

“The Legislature shall have no power to authorize any county, city, town or other political corporation * * * of the State, to lend its credit or to grant public money * * * in aid of, or to, any individual, association or corporation whatsoever,” etc.

The funds possessed by the counties of the State and available for the payment of the expense of the primary election provided for by this act, are only those which are derived by taxation. If the payment of such expense is, within the meaning of the Constitution, “a public purpose,” the act is valid in its provision that it shall be borne out of the public treasury of the counties; otherwise it is not.

Taxes are burdens imposed for the support of the government. They are laid as a means of providing public revenues for public purposes. The sovereign power of the State may be exercised in their levy and collection only upon the condition that they shall be devoted to such purposes; and no lawful tax can be laid for a different purpose. Whenever they are imposed for private purposes, as was said in Brodhead v. Milwaukee, 19 Wis. 670, 88 Am. Dec. 711, it ceases to be taxation and becomes plunder.

It is not easy to state in exact terms what is “a public purpose” in the sense in which that term is employed as a limitation upon the State’s power of taxation. The framers of the Constitution were doubtless sensible of this difficulty, for they did not attempt to define it. Many objects may be public in the general sense that their attainment will confer a public benefit or promote the public convenience, but not be public in the sense that the taxing power of the State may be used to accomplish them. The powers of the State as a sovereignty exist only for governmental purposes. They may be freely exerted in the discharge of all the governmental functions of the State; but cannot be applied to uses, though public in aim and result, which are not governmental in their nature. As the means provided for the support of the government in its administrative duties and existing alone for that end, the taxing power may be employed for no purpose save that which in a true and just sense is related to the performance by the State of its governmental office. The appropriation of the public revenue is a legislative power, and the Legislature must necessarily be allowed a large discretion in determining to what uses public moneys may be put Subject to the constitutional limitation that the public revenue shall be applied to only public purposes, to the prudent husbandry of the Legislature as well as its provident foresight has been committed the public trust of making such use of it as will afford the economical administration of the government which both the spirit and the letter of the Constitution enjoin. The term “public purpose” as used in this relation is not, therefore, to be construed narrowly, so as to deny authority to the Legislature to make such provision for the administration and support of the government in its several branches and subdivisions as will faithfully subserve the present and future interests of the people. The limitation imposed by the Constitution upon the power is, however, imperative. And it is essentially true that it does not permit taxation for all purposes which in a broad and general sense may be regarded as public', but expressly confines its exercise to only those public purposes with which the State, as a government, invested with high and sovereign powers, but only as a grant from the people and therefore to be solely used for the common benefit of all of them, and not as a paternal institution, may justly concern itself, and to which, for that reason, the public revenues may be rightfully devoted.

As to what is a public purpose -within the meaning of Section 3, Article 8 of the Constitution, no better test can be presented than the inquiry: Is the thing to be furthered by the appropriation of the public revenue something which it is the duty of the State, as a government, to provide? Loan Association, v. Topeka, 20 Wall. 655, 22 L. Ed. 455; People v. Town of Salem, 20 Mich. 452, 4 Am. Rep. 400. Those things which it is the duty of the State to provide for the people, it is equally the right of the State, by means of the public revenue, to maintain. Within this category fall the general instrumentalities of the government, the public schools, and other institutions of like nature. But the State is wholly without any power to levy and appropriate taxes for the support of those things which, either by common usage or because they are in no proper sense the instruments- of government, it is the duty of the people to provide for themselves. It is not all things which answer a public need or fill a public want that it is within the authority of the State to furnish for the people’s use or support at the public expense. Manufacturing industries, railroads, public enterprises of many kinds, private schools and private charitable institutions all afford a service to the public, but the State is without any power to maintain them. Religion is generally esteemed a helpful influence for public morality. But the Constitution expressly declares that no public money shall be granted in aid of any religious organization.

General elections are essential to the public welfare and are distinctly related to the discharge of an important governmental duty, because it is only by their means that the organic law may be amended and in the ■elective offices public officials be supplied for the various administrative agencies of the State. But is it any duty of the State to provide the people with nominees of political parties for the elective offices of the government? Is it in any just sense a concern of the State, that those offices be filled by only -the nominees of political parties? And is there any right in the State to devote the public revenues of the State derived by taxation from the people at large in aid of the purposes of such parties?

A political party is nothing more or less than a body of men associated for the purpose of furnishing and maintaining the prevalence of certain political principles or beliefs in the public policies of the government. As rivals for popular favor they strive at the general elections for the control of the agencies of the government as the means of providing a course for the government in accord with their political principles and the administration of those agencies by their own adherents. According to the soundness of their principles and the wisdom of their policies they serve a great purpose in the life of a government. But the fact remains that the objects of political organizations are intimate to those who compose them. They do not concern the general public. They directly interest, both in their conduct and in their success, only so much of the public as are comprised in their membership, and then only as members of the particular organization. They perform no governmental function. They constitute no governmental agency. The purpose of their primary elections is merely to enable them to furnish their nominees as candidates for the popular suffrage. In the interest of fair methods and a fair expression by their members of their preference in the selection of their nominees, the State may regulate such elections by proper laws, as it has done in our general primary law, and as it was competent for the Legislature to do by a proper act of the character of the one here under review. But the payment of the expenses of purely party elections is a different matter. On principle, such expenses cannot be differentiated from any other character of expense incurred in carrying out a party object, since the attainment of a party purpose — the election of its nominees at the general elections through the unified vote of the party membership, is necessarily the prime object of a party primary.

The great powers of the State, — and the taxing power is the one to be always the most carefully guarded, — cannot be used, in our opinion, in aid of any political party or to promote the purposes of all political parties. They are no more to be made the objects of governmental bounty or favor than any other class of public organizations into which groups of c-itizens may form themselves. Expenses incurred in the furtherance of their objects can no more be defrayed out of the public treasury than the expenses of other associations of individuals. If it is constitutional to use the public revenues to pay the cost of their primary elections, it would likewise be constitutional to pay the cost of their candidates’ campaigns. If the constitutional barrier is removed in the one case, it cannot be restored in the other; but it will have to be admitted that any and all kinds of expense of political parties may be lawfully imposed as a part of the public burden of taxation.

For a stronger constitutional reason than would apply to other kinds of public organizations is it the clear duty of the State to withhold the use of its public revenues as an aid to political parties, and particularly as an aid in the holding of their party elections. The object of such parties is the political control of the government; and we regard it as a fundamentally sound proposition that no power of the government can be constitutionally used in furtherance or aid of the effort of any class or kind of organization, political or otherwise, to obtain the control of the government.

To provide nominees of political parties for the people to vote upon in the general elections, is not the business of the State. It is not the business of the State because in the conduct of the government the State knows no parties and can know none. If it is not the business of the State to see that such nominations are made, as it clearly is not, the public revenues cannot be employed in that connection. To furnish tlieir nominees as claimants for the popular favor in the general elections is a matter which concerns alone those parties that desire to make such nominations. It is alone their concern because they alone are interested in the success of their nominees. The State, as a government, cannot afford to concern itself in the success of the nominees of any political party, or in the elective offices of the people being filled only by those who are the nominees of some political party. Political parties are political instrumentalities. They are in no sense governmental instrumentalities. The responsible duties of the State to all the people are to be performed and its high objects effected without reference to parties, and they have no part of place in the exercise by the State of its great province in governing the people.

We have been pointed to but one authority holding that the public revenues may be used to pay the cost of the primary elections of political parties, State v. Michel, 121 La. 374, 46 South. 430, but in that case the question received only a casual consideration, and we do not feel at liberty to adopt the conclusion there announced.

Holding an act of the Legislature to be unconstitutional is never a welcome duty, and this court has never performed it except with reluctance. It is a duty, however, plain and unmistakable when upon mature consideration such is the conviction of the court. The Constitution is the supreme law of the State, and no consideration should be suffered to stand in the way of its enforcement. Tested by legal principles which are clear and established, the payment of the expenses of primary elections of political parties is not a public purpose for which public revenues may be used; and in our opinion the act in question is therefore unconstitutional and unenforceable.

HAWKINS, J.

(concurring). I concur in the conclusion and also in the general course of reasoning upon which it has been reached, and in nearly all that our CHIEF JUSTICE has said so well, above. However, I consider it proper for me to say this:

Undoubtedly “common usage” is one very valuable test, or measure, by which the courts may determine whether a given expenditure of public funds is or is not for “a public purpose,” and to that effect are the authorities; but I do not regard it as the only test, in any instance.

The distinction between the “maintenance” and the “regulation” of primary elections is drawn, and properly so, in said opinion, and that, indeed, is as far as it is necessary to go in answering the certified question; but, as this is a pioneer case of public importance, I wish, by way of making my own views clear, to emphasize, if possible, said distinction, and, in that connection, to say that said opinion, as I understand it, does not question the power and authority of the Legislature to direct payment, out of public funds raised by taxation, of any and all reasonable expenses which may be incurred in the mere regulation — but not in the maintenance — of primary elections. De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814.
      <@r»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®=>ITor other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


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    DUPREE et al v. GALE MFG. CO.
    (No. 2449.)
    (Supreme Court of Texas.
    March 15, 1916.)
    Judgment &wkey;>866(2) — Action on Judgment— Limitation — Statute.
    Under Rev. St. 1911, art. 5696, providing that a judgment in any court of record where execution has not issued within 12 months after the rendition thereof may be revived by scire facias or an action of debt brought thereon within 10 years after the date of such judgment, and in the absence of any statute expressly jjre-scribing the period of limitations for an action to revive a judgment upon which an execution has duly issued, an action on a. judgment on which execution issued within a year is, by analogy, subject to the same limitation period of 10 years, to be reckoned from the date of the issuance of the last execution, and hence an action to recover on a judgment on which execution issued within a year, brought more than 10 years from the issuance of such execution, was barred, and the running of the statute is not postponed until the judgment should become dormant.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1604-1607; Dec. Dig. &wkey;S66(2).]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by the Gale Manufacturing Company against W. E. Dupree and others.. From a judgment of the Court of Civil Appeals (146 S. W. 1048), affirming a judgment for plaintiffs in part and in part reversing and rendering reviving the plaintiff’s former judgment and authorizing execution to issue thereon, defendants bring error.
    Judgment, in so far as reviving the judgment, reversed, and judgment of district court affirmed.
    Sleeper, Boynton & Kendall, of Waco, for plaintiffs in error. H. C. Lindsey, of Waco, for defendant in error.
   PHILLIPS, C. J.

The Gale Manufacturing Company recovered a judgment against W. E. Dupree in the District Court of BlcLen-nan county on June 21, 1897. An execution issued on the judgment within a year, being the only execution upon the judgment. After more than ten years from the issuance of the execution, but within fourteen years from that date, recovery upon the judgment was sought by the plaintiff in the present case, which action the trial court held was barred by the ten years statute of limitation. On the appeal it was held by the honorable Court of Civil Appeals for the Third District that the action was not barred, since it was brought within four years from the date the judgment became dormant; Its holding, in other words, is that the cause of action upon the judgment did not accrue until it was dormant, and the limitation applicable is that prescribed by the four years statute, — Article 5690.

The question is not a new one. It was determined in Willis v. Stroud, 67 Tex. 516, 3 S. W. 732, following Fessenden v. Barrett, 9 Tex. 475. But it is announced in the opinion of the Court of Civil Appeals that it declines to follow these decisions.

We have never had a statute, and have none now, expressly prescribing the period of limitation for an action to revive a judgment upon which an execution has duly issued. The only statute upon the subject relates to judgments upon which execution has not so issued. It was enacted at an early day, in 1841, being present Article 5696, and reads:

A judgment in any court of record within this State, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias or an action of debt brought thereon, within ten years after the date of such judgment, and not after.

Such was the state of the statutory law when in Barrett v. Fessenden the court was confronted with the question as to what period of limitation should be applied to a proceeding to revive a judgment where execution had been duly issued. Making use of the principle, that where a statute has fixed a bar to one action in a particular case, the remedy in analogous cases, not provided for by statute, should be restricted to the same period, it was there held, — and the correctness of the holding is in our opinion not open to question, — that the period of limitation should be the same as that declared in the existing statute for the exercise of the same remedy in respect to judgments upon which execution had not issued, that is, ten years, to be reckoned from the date of the issuance of the last execution, — the last act of legal diligence for the enforcement of the judgment. It was not recognized that the running of limitation in such cases was to be postponed until the judgment should become dormant. Nor in 'the decision of the question was the consideration that, in a technical sense, a cause of action for the revival of a judgment does not arise until it is dormant, allowed any force. The statute expressly relating to judgments upon which no execution had issued, which it was held should, by analogy, furnish the rule, put limi-tatioñ in motion, as it does now, though the judgment was in full force; and in adopting its period for the rule, the time for the commencement of the limitation was fixed likewise without regard to whether the judgment was then dormant.

In Willis v. Stroud the question was again presented and decided, the opinion being delivered by Chief Justice Willie. Notwithstanding the four years general statute of limitation, now Article 5690, was then in force, as was also the Act of November 9, 1866, which extended the period within which a judgment should not become dormant after the issuance of execution, from one year, as was the provision of the early laws, to ten years (Wilcox v. National Bank, 93 Tex. 333, 55 S. W. 317), which latter act was urged in the argument as a reason for abandoning the rule announced in Barrett v. Fessenden, the rule was re-aflirmed. After quoting the statute, now Article 5696, above set out, the opinion reads:

“This Article is in the same language as that used in the statute of February 5, 1841, in force at the time this judgment was rendered. That Act, like the present law, made no express provision as to limitation upon a judgment where execution had duly issued; but under the decisions of this court, made during its existence, such a judgment was held barred at the expiration of ten years from the date when the last execution issued thereon. Fessenden v. Barrett, 9 Tex. 475.”

Meeting the contention that as applied to an action to revive a judgment, limitation does not commence to run until the judgment becomes dormant, this is also said:

“It is, however, urged by the appellants that since the passage of the third section of the Act of November 9, 1866, found in Paschal’s Digest, Article 7007, in force when this judgment was obtained, the foregoing rule does not prevail, and a judgment could not be barred under that act until ten years had elapsed from the time it becomes dormant. The foregoing section reads: ‘No judgment of a court of record shall become dormant unless ten years shall have elapsed between the issuance of executions thereon.’ The plaintiff’s claim is that this law, having postponed the time at which a judgment became dormant to a date later than that fixed by the former law, necessarily postponed the date from which limitation would commence to run against a revival of the judgment.
“There would be much force in this idea if limitation upon a judgment necessarily commenced to run from the date when it became dormant. But this is not the rule, either by statute or the decisions of this court. For instance, although a judgment upon which an execution has not issued does not become dormant till the end of one year after it was obtained, yet limitation is made by statute to commence running from the date, when it was obtained. Again, a judgment upon which execution has issued did not, under former laws, become dormant till one year had expired from the day when the last execution issued; yet our decisions made limitation to run from the date of the issuance of the last execution, and not from one year thereafter. De Witt v. Jones, 17 Tex. 620; Fessenden v. Barrett, supra; Spann v. Crummerford, 20 Tex. 216.
“It is apparent from these citations that the period of dormancy is not taken into consideration in fixing the date when the statute begins to run. There may be reasons why it should be, but these can not prevail against the plain provisions of the statute, and the equally clear adjudications of the Supreme Court which have sufficient reasons to support them.”

Through Chief Justice Gaines the holding in Eessenden v. Barrett was again affirmed in Wilcox v. National Bank, in this language:

“The limitation is express where execution has not issued within twelve months ; but where execution has so issued, no period of limitation is expressly prescribed. But no reason is seen why the Legislature should prescribe a limitation in the one case and not in the other; and therefore it has been repeatedly held that where execution has been sued out within twelve months from the date of a judgment, an action upon it will not be barred until the lapse of ten years from the date of the last execution or the last act of diligence. Fessenden v. Barrett, 9 Tex. 475; Willis v. Stroud, 67 Tex. 516 [3 S. W. 732]; Low v. Felton, 84 Tex. 378 [19 S. W. 693].”

Willis v. Stroud was decided in 1887. With the knowledge that by the decision the statute now constituting Article 5696 was held as also furnishing the rule of limitation where an execution had duly issued upon the judgment, the Legislature, in the two subsequent revisions of the general statutes, has re-enacted it without change. By no legislation upon the particular subject has a different statutory rule been provided. The holding has stood unquestioned in the decisions of this court and has been repeatedly followed. Millican v. Ware, 84 Tex. 308, 19 S. W. 475; Low v. Felton, 84 Tex. 378, 19 S. W. 693; Wilcox v. National Bank, 93 Tex. 322, 55 S. W. 317; Stevens v. Stone, 94 Tex. 415, 60 S. W. 959, 86 Am. St. Rep. 861. Beginning with Fessenden v. Barrett, for more than sixty years it has been the law of the State upon the question. We are satisfied with it and again reaffirm it.

In so far as it revived the judgment in question, the judgment of the Court of Civil Appeals is reversed; and the judgment of the District Court is fully affirmed.
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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    CARPENTER v. TRINITY & B. V. RY. CO.
    (No. 2445.)
    (Supreme Court of Texas.
    March 29, 1916.)
    1. Carriers <&wkey;22 — Passenger — Paying Fare — Acts Penalized.
    Acts 30th Leg. e. 42, § 1, makes it an offense for a railroad to knowingly cai-ry persons free of charge, or to give a free pass, frank, privilege, or substitute for pay or a subterfuge to be used instead of the regular fare for transportation. Section 3 makes it an offense for any person to offer to use any permit or frank which has been issued to any other person, or to improperly apply for any pass, etc., for pay. By section 6 any person is punishable “who uses any such free ticket, free pass or free transportation, frank or privilege. * * * ” Pen. Code 1911, art. 9 (Vernon’s Ann. Pen. Code 1916, art. 9), provides that no person shall be punished for an offense not made penal by the plain import of the words of a law. Seld, that the provision of section 6, does not make it an offense to merely board a train and to seek to ride without paying fare, in the absence of an attempt to use some character of free transportation.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 56, 1010; Dec. Dig. &wkey;22.]
    2. Appeal and Error &wkey;>1064(l) — Review— Prejudicial Error — Instruction.
    In an action by a passenger who had provided no ticket for a child above the free age limit to recover for nervous injuries produced by the threatening language of a conductor, the giving of the erroneous instruction that the law penalized and made punishable by fine the avoiding of the payment of fare by a passenger and that the conductor had the right, in a reasonably courteous and respectful manner, to explain to plaintiff that such was the law, in which event the defendant would not be liable, even though plaintiff became excited and nervous therefrom as alleged, was prejudicial.
    Liau. Note. — R'or other cases, see Appeal and Error, Cent. Dig. § 4219 ; Dee. Dig. &wkey;1064(l) ; Trial, Cent Dig. §§ 475, 525, 553.]
    Error to Court of Civil Appeals of Fifth. Supreme Judicial District.
    Action by W. W. Carpenter against the Trinity & Brazos Valley Railway Company. From a judgment of the Court of Civil Appeals (146 S. W. 363) affirming a judgment for defendant, plaintiff brings error.
    Reversed.
    Collins & Cummings, of Hillsboro, for plaintiff in error. Morrow & Morrow, of Hillsboro, for defendant in error.
   PHILLIPS, C. J.

This was an action for damages on account of certain treatment to which it was alleged that plaintiff’s wife was subjected while a passenger upon a train of the defendant railway company. According to her testimony upon the trial, she boarded the train at Hillsboro, accompanied by her little daughter, who was five years and ten months old, for the purpose of going to Mexia. She had a ticket for herself but none for the child because she did not think fare would be charged for the latter on account of her age. This explanation was made to the defendant’s conductor when he demanded a ticket for the child. In the course of the conversation which ensued, the conductor, according to her statement, spoke to her harshly, saying that he would put the child off the train unless her fare was paid, and that she, the mother, was guilty of a penitentiary offense in getting on the train without a ticket for the child. She paid for the child’s passage, and with the child proceeded on her journey.

The trial court advised the jury in the charge that at the time of the occurrence “the law declared it to be an offense, punishable by fine, for a person subject to the payment of a fare to avoid the payment of such fare on a railway passenger train.” In this connection the ¡charge further instructed the jury that the conductor “had the right, in a reasonable, courteous and respectful manner, to explain to Mrs. Carpenter that such was the law, and if he did so in a reasonably courteous and respectful manner, tbe defendant would not be liable, even though, she may have become excited and nervous therefrom as alleged in the petition.” The correctness of this charge is the only question we shall consider.

On the first appeal of the case it was held by the honorable Court of Civil Appeals for the Fifth District that the Act of the Thirtieth Legislature, Chapter XLII, Acts of 1907, did not make it an offense for one to merely attempt to ride upon a railway passenger train without the payment of fare. 55 Tex. Civ. App. 627, 119 S. W. 335. On the second appeal a different view was expressed, (Civ. App.) 132 S. W. 837; and this latter ruling was adhered to on the present appeal. An examination of the Act convinces us that the first view of the court on the question was correct, and accordingly, that the charge was erroneous. The first section of the Act makes it an offense for a railway company, or any officer, agent or employé thereof, to knowingly carry any person “free of charge,” or to give to any person, etc., “a free pass, frank, a privilege or a substitute for pay or a subterfuge which is used or which is given to be used instead of the regular fare or rate for transportation.” By Section 3 it is likewise made an offense for any person to “present, or offer to use in his own behalf, any permit or frank, whatsoever, to travel, pass or to convey any person * * * which has been issued to any other person,” or, knowing that he is not entitled thereto under the provisions of the Act, to apply to any railway company, officer, agent, lessee or receiver thereof for any free pass, frank, privilege or a substitute for pay given or to be used instead of the regular fare or rate for transportation. By Section 6, any person, other than those excepted by the provisions of the Act, is made punishable “who uses any such free ticket, free pass or free transportation, frank or privilege over any railway or other transportation line.” This latter section is the only provision in the Act which, by any construction, can be said to have the effect of making it an offense for one to merely seek to ride on a railway train without the payment of fare, but it is manifest that it does not do so in terms. The sxjecific act which it denounces as a crime is the use of a free ticket, a free pass or free transportation for the purpose of carriage on a railway train by one in possession of such evidence of the right to such carriage. It does not, in terms, purport to deal with an attempt to ride without paying fare by one who makes no effort to use some token or evidence of the right to be transported. If such an act is within its intendment, it is only by inference. It is not made penal by the plain import of the words of the law. Article 9 of the Penal Code 1911 (Vernon’s Ann. Pen. Code 1916, art. 9) provides:

“No person shall be punished for an offense which is not made penal by the plain import of t^e words of a law.”

The rule governing the scope to be given a penal act is thus stated by Mr. Sutherland in his work on Statutory Construction, section 521: .

“To constitute the offense the act must be both within the letter and spirit of the statute defining it. Penal statutes can never be extended by mere implication to either persons or things not expressly brought within their terms. ‘Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of English and American criminal law.’ ”

Further, in Section 520, the same author says:

“Nothing is to be regarded as included within them (penal statutes) that is not within their letter as well as their spirit'; nothing that is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the Legislature.”

If it was the purpose of the Legislature to make it a crime for a person to merely seek to ride upon a railroad train within this State without the payment of fare, no difficulty would have been experienced in so writing the law in plain terms. It is at least doubtful that this was the intention of the Legislature in the enactment of this statute, since in this section it is only persons who attempt to use free passes or free tickets, or other evidence of right to transportation that are dealt with. Whatever may have been the legislative purpose in this particular, it is manifest that the terms of the law do not make it an offense to merely board a train, without attempting to use some character of free transportation, and seek to ride without paying fare. We cannot do otherwise than take the statute as we find it and be governed by its terms as written. We are not at liberty to extend its scope by implication.

The charge of the court was in our opinion clearly prejudicial to the plaintiff. Its plain effect was to justify the conduct of the conductor if it was found by the jury as a fact that he told the plaintiff’s wife she was guilty of a penitentiary offense in boarding the train without a ticket for the child, as she testified he did at the time he demanded a ticket for her. She had committed no crime in so doing, under the written law of the State; and, if he made the statement, she was subject to no such accusation.

The judgments of the Court of Civil Appeals and the District Court are reversed and the cause is remanded to the District Court.
      <@x5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SEGAL v. McCALL CO.
    (No. 2452.)
    (Supreme Court of Texas.
    March. 29, 1916.)
    1. Commerce «=40(1) — Contract in Restraint oe Trade.
    A contract for the purchase of patterns between a New York fashion company and a Texas buyer, which obligated the buyer to sell onfy the seller’s patterns and at no prices other than the catalogue retail.prices of the seller, there being no reservation of title to the patterns in the fashion company, was violative of the Texas Anti-Trust Act (Acts 28th Leg. e. 94) as an agreement in restraint of trade, the illegal stipulations of the contract affecting the goods only in Texas and after they ceased to become merchandise in interstate commerce, so that the exclusive jurisdiction of Congress as to such commerce did not deprive the state act of application.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. «=>40(1).]
    2. Monopolies «=>23 — Breach oe Contract in Restraint oe Trade — Right oe Action.
    A New York fashion company which contracted to sell its patterns to a Texas buyer,_ the contract, fixing prices, etc., being in part viola-tive of the Texas Anti-Trust Act, could not recover for breach of such contract, the partially illegal character of the contract rendering it entirely unenforceable.
    [Ed. Note. — For other eases, see Monopolies, Cent. Dig. § 16; Dec. Dig. «=>23.]
    Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by the McCall Company against J. J. Segal. From a judgment for plaintiff, defendant appealed to tlie Court of Civil Appeals, which certifies questions.
    Questions answered.
    See, also, 126 S. W. 913.
    R. R. Taylor, of Jefferson, for appellant. Armistead & Benefield, of Jefferson, for ap-pellee.
   YANTIS, J.

The case is presented on certified questions from the Court of Civil Appeals for the Sixth District. The statement of the honorable Court of Civil Appeals, and the questions certified, are as follows:

“The McCall Company, plaintiff in the court below, is now, and was at the date of the institution of this suit, a private corporation with its residence and place of business in the state of New York. The record shows that in May, 1905, it entered into the following written contract with J. J. Segal, defendant below, who was at the time a resident of the state of Texas:
“ ‘City or Town, Jefferson. State, Texas.
“ ‘Date, May 15, 1905.
“ ‘The McCall Company, 113-115-117 West 31st Street, New York:
“ ‘Please deliver to Morgan Line at New York City, addressed to me, a stock of McCall patterns, at the uniform price of cents for each pattern (excepting those retailed for 10 cents, the price of which is 5 cents each), amounting to §200.97 net, including the July issue $42.42 payable thirty days after shipment; $33.55 to take up exchange credit of like amount; and the balance $125.00 is to remain as a standing credit, which, together with the $75.00 now on hand, makes a total of $200.00, which is to remain as a standing credit during the term of this contract-order, upon which interest is to be paid by me at the rate of four per cent, per annum, semiannually, January and July 1. When this contract is closed as herein provided, patterns unopened and not defaced and in good salable condition, purchased of you under this contract-order, may be returned, at prices stated above in payment for said standing credit. Also ship me each month by Morgan Line not exceeding an average of $20.00 per month of your own selection of the new monthly patterns, at same prices as above, commencing- with August issue; also fashion sheets and other publications in quantities, and at prices specified below, during the term of this contract, commencing with July issue. (Then follows a list of items and details not material.)
“ ‘We will reorder at the prices named, once each week or oftener, all patterns sold, thus keeping patterns on hand as above specified. The patterns are not to be sold for other than catalogue retail prices, and the stock of patterns is to be kept and offered for sale on the first (main) floor. We will send you an inventory of our stock of patterns on hand at your request, not exceeding twice each year. All goods ordered for delivery are to be paid for on or before the 5th day of the month succeeding date of shipment; if not then paid, subject to sight draft. All prices quoted are net. We will not sell any other patterns than the McCall patterns received from you during the term of this contract-order. We will not transfer the stock of McCall patterns from Jefferson, Texas, without your written consent, and we will pay all transportation charge to and from your New York office.
‘Discarded Patterns. — All patterns purchased from you under this contract-order that are reported discarded by you semiannually — January and July — can be returned by us at 100% contract price, in exchange for other patterns at full contract price, at any time within sixty days from the date such discarded patterns are respectively reported by you, provided this contract shall be in force at the time of such return. All patterns returned by us under any such discard report are to be credited to a special account, to be known as our discard exchange account, the credit to same to continue for a period of six months from the date of such discard report, unless this contract shall be sooner terminated; and all patterns ordered by us within such period of six months and while this contract is in force, excepting our monthly standing order, shall be charged to such discard exchange account unless our credit to the same is earlier exhausted.
“ ‘If either of us shall intentionally break this contract or shall refuse or fail promptly to perform the same after two weeks’ notice in writing given by the other, then the other shall have the right to exercise the option of being released from all future obligations under it, and to recover and receive as liquidated damages, and not as a penally, a sum equal to the agreed charge for fashion sheets during the entire term of this contract.. Failure to require compliance with the strict letter of this contract-order shall not forfeit nor prejudice any right thereunder, nor constitute a waiver thereof. This contract is to remain in force from date, and for five years after first shipment of patterns, and thereafter until the expiration of three months’ notice given by either party in writing, subsequent to the expiration of such five years. All terms are in printed or written form. Signed in duplicate after being read. Date, May 15, 1905. Purchaser's name, -.
‘Guarantee Against Loss in Patterns. — It is agreed that at the end of five years and three months from date of first shipment of patterns, provided this contract shall have continued in force so long, the above purchaser may take an invoice of the stock of patterns on hand, purchased under this contract, and if the result of the business shows that the above purchaser has paid us more cash for patterns purchased under this contract than has been received for them, we will, upon demand made by such purchaser and receipt of the patterns at our New York office within thirty days after the expiration of such five years and three months, pay such loss in cash, provided all terms of this contract have been complied with. The above contract-order is accepted subject to the approval of the home office. The McCall Company (Incorporated State of New York), by James E. H. Cawall, Auditor. Date, May 15, 1905.
“ ‘Approved and accepted, -New York, N. Y., May 19. 1905. The McCall Company, by James E. H. Cawall, Auditor. (2022.)
“ ‘Date, May 15, 1905.
“ ‘It is further understood and agreed as - a part of and supplement to the provisions of the annexed contract that if, at any time in the months of January and July, in any year during the term of the said annexed contract, after the discarded patterns reported by you are taken from our stock in accordance with the conditions of the annexed contract, the stock of patterns purchased of you then remaining in our hands exceeds <¡>400.00, at cost price, then we shall have the privilege (provided all the terms of the annexed contract have been fully complied with by us), after such discards are taken out, of returning to the McCall Company any patterns we may select from such remaining stock, to an amount sufficient to reduce our stock to such sum of $400.00; and same is to be credited to our current account at full cost price, in payment for our monthly standing order for patterns under said contract or for any other patterns that we may order until such credit is exhausted; it being the purpose of this clause to provide that we may, if we so elect, reduce our stock on hand, twice each year, to the sum of $400.00, exclusive of all discards. In consideration of the foregoing concession, the McCall Company shall have the right, with our assistance, to take an inventory of our stock at any time on demand, and we agree that when our stock on hand at cost price. shall have reached the said amount of $400.00, we shall not allow the amount thereof to be reduced below said sum of $400.00 during the remaining term of the annexed contract; and if at the termination of said contract, it shall be found that the value of our stock amounts at cost to less than said sum of $400.00, we will either order and pay for a sufficient quantity of new patterns to bring the total to said sum of $400.00, or pay the difference to the McCall Company in cash.
“ ‘Accepted. The McCall Company (Incorporated State of New York), by James E. H. Cawall, Auditor.
“‘Signature, J. J. Segal [W].’
“In 1910, the McCall Company instituted this suit against Segal, in which it seeks to recover the sum of $742.10 claimed as the sum due upon an itemized and verified account for goods sold and delivered under the terms of the above contract. It also seeks to recover in the same action the sum of $411.88 as liquidated damages for the breach of the contract. Among the defenses interposed by Segal it was urged that the contract was illegal and void because in violation of the provisions of both the federal and state anti-trust laws. The portions of the contract specifically designated as being in violation of those laws are the following: ‘The patterns are not to be sold for other than cata-logue retail prices, and the stock of patterns is to be kept and offered for sale on the first (main) floor. * * * All goods ordered for delivery are to be paid for on or before the 5tb day of the month succeeding date of shipment, if not then paid subject to sight draft. All prices quoted are net. We will not sell any other patterns than the McCall patterns received from you during the term of this contract-order.’
“We are inclined to hold that this latter provision of the contract is in violation of the Texas anti-trust statute, under the rule announced in the case of Fuqua et al. v. Pabst Brewing Co., 90 Tex. 298, 88 S. W. 29 [750, 35 L. It. A. 241]. But in view of a contrary holding in the recent case of McCall Co. v. J. D. Stiff Dry Goods Co. [Civ. App.) 142 S. W. 659, in which the honorable Court of Civil Appeals for the Fifth Supreme Judicial District was called upon to construe a contract practically the same as this, we have concluded to certify to your honorable court the following questions:
“1. Did this contract contain stipulations vio-lative of either the federal or the state antitrust statutes?
“2. Did those provisions of the contract quoted in the above excerpt defeat the right of the McCall Company to recover in this suit?
“3. If you should determine that the contract was not void and unenforceable, then we desire an answer to the following question: Does the contract disclose the transaction of business in this state in such a manner as to require the McCall Company to procure a permit from the secretary of state under the provisions of article 745 of the Revised Civil Statutes as a condition upon which it can maintain this action in a court of this state?”

We answer the first question in the affirmative. The contract is violative of the state anti-trust statutes. In this view, and according also to the plain meaning of the first question, we need not determine whether the contract is violative of the federal Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1913, §§ 8820-S830]). We think the provisions of said contract which obligated Segal to sell no kind of patterns except the McCall,patterns, and to sell at no price other than the catalogue retail prices, are in restraint of trade within the meaning of the Texas Anti-Trust Act (Acts 28th Leg. c. 94). It will be noted that the contract is not in any sense an agency contract. Neither is the title to the patterns reserved or attempted to be reserved in the McCall Company. The contract is for a naked sale of the goods, with no reservation of title, or restrictions upon the sale thereof, except the provision which fixes for the vendee his selling price to the consumer, and the provision which prohibits the vendee from selling other patterns than the McCall patterns. Such a contract is a plain violation of the Texas Anti-Trust Act. If the contract had exclusive relation to interstate commerce it would not violate the Texas anti-trust statute, for the reason that under the federal Constitution, Congress alone has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The state AntiTrust Act was not intended to encroach upon a field of legislation over which it had no jurisdiction. A state has no power to regulate interstate commerce, and is prohibited from so doing by the federal Constitution. Only Congress may occupy this field. Albertype Co. v. Gust Feist, 102 Tex. 219, 114 S. W. 791. But the provisions of the contract which are obnoxious to the Texas AntiTrust Act constitute no part of interstate commerce. They apply to acts to be performed by the vendee after the interstate commerce involved in the transaction has been completed. For a citizen of New York to sell and transport to a citizen of Texas goods and merchandise is to engage in interstate commerce; but when the sale and transportation has been completed, and the property has been delivered in Texas to a citizen of Texas, the interstate transaction has ended. The use to which the property may then be put in Texas, and the acts of the vendee in relation to it while in Texas, come under the jurisdiction of the Texas laws. When the contract relates wholly to interstate commerce, only the federal Anti-Trust Act could apply; but when the contract contains more, as in this case it does, than a contract for interstate shipment, and embraces acts to be performed after the completed sale and shipment, which are not essential ingredients of an interstate shipment, it falls within the regulation of state law. The federal law alone controls contracts covering interstate commerce, it is true; but when the contract embraces ingredients necessary to cover interstate commerce, and ingredients not pertaining to interstate commerce, but pertaining to the use of the property after the interstate shipment has been completed, the interstate feature of the contract will not nullify the power of state laws to govern on the features of the contract which are not interstate. Texas laws govern as to such features. This contract is twofold, in that it embraces a full contract for interstate commerce between a citizen of New York and a citizen of Texas, and other provisions for acts to be performed in Texas after the interstate feature of the contract has been entirely fulfilled. The contract fixes the price at which the vendee shall sell at retail in Texas, and provides that he shall refrain 'from selling at retail in Texas any other pattern than the McCall pattern. This brings it under the jurisdiction of the Texas laws. This was the holding of this court in Fuqua, Hinkle & Davis v. Pabst Brewing Company, 90 Tex. 298, 88 S. W. 29, 750, 35 L. R. A. 241, which we think announces the correct rule. This holding is not in conflict with the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S. W. 791, though it might ajjpear so from a casual reading of the opinion in that case. The opinion in that case was by Mr. Justice Brown, and its holding was that the restraint of trade which appeared from the facts to exist in that ease was not prohibited by the Texas Anti-Trust Act, it having relation alone to interstate commerce. As governed by the facts of that particular case, the holding was correct. The provision of the contract in that case,

which was charged to be in violation of the state Anti-Trust Act, was, that the Albertype Company, of the state of New York, would not sell the souvenir albums to any citizen of the city of Galveston other than the Gust Feist Company, whose place of business was in Galveston. For the Albertype Company, of the state of New York, to sell and deliver the albums to a citizen of Galveston, Tex., was interstate commerce. For it to refrain from so doing was to refrain only from engaging, to that extent, in interstate commerce. This would be in violation of only the federal Anti-Trust Act. If the contract had required the vendee, after receiving it in Texas, to sell it at a certain price, or to refrain from selling any other kind of album, then such provision of the contract would have been in violation of the Texas AntiTrust Act, because having relation to certain restricted uses of the property after the interstate shipment had been completed. So that case, when understood in the light of its own facts, is in harmony with the holding of this court in Fuqua, Hinkle & Davis v. Pahst Brewing Co., supra, and other kindred cases, and the holding in this case is in agreement therewith.

These obnoxious provisions of the contract defeat the right of the McCall Company to recover in its suit. Being in part in violation of law, the taint renders the entire contract illegal and unenforceable. The law will not give effect to a contract of this nature, or give aid to its enforcement, it being in violation of public policy so to do. We therefore answer the second question in the affirmative.

The third question becomes immaterial, and is not answered.
      other oases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    CARRELL v. STATE.
    (No. 3974.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Forgery &wkey;29(4) — Indictment — Sufficiency.
    An indictment charging that the defendant knowingly passed a cheek against “available school funds” with a forged indorsement of the name of the payee, which did not either by explanatory averments or otherwise show that the check was legally drawn, was insufficient.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 80; Dec. Dig. <&wkey;29(4).]
    2. Criminal Daw <&wkey;784(l) — Trial—Instructions — Circumstantial Evidence.
    Where the defendant’s connection with a forged chock was to be deduced from circumstances, so far as any alteration or knowledge of the fact that it was altered was concerned, the court improperly refused to give an instruction on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1883, 1960; Dec. Dig. <&wkey;> 784(1).]
    3. Criminal Daw &wkey;>372(12) — Evidence—Admissibility — Extraneous Documents.
    In a prosecution for passing a forged instrument extraneous checks or vouchers should not be admitted, in tbe absence of proof that they were forgeries, and that tbe defendant was connected therewith.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <©=> 372(12.).]
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    W. J. Carrell was convicted of passing a forged instrument, and he appeals.
    Reversed.
    D. W. Odell, of Ft. Worth, and Johnson & Harrell, of Cleburne, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment contains two counts, one charging forgery of the following instrument, and the other passing the same instrument, to wit:

“Cleburne, Texas, April 24, 1912. No. -.
“The National Bank of Cleburne: Pay to C. C. Thomas or order $637.00, six hundred and thirty-seven and no/100 dollars. (Available school funds.) Fred T. Vickers.
“Loula Rogers.”

It also alleges the forgery consisted in the fact that the name of C. C. Thomas was written across the back of said check, and this was a fraudulent alteration, charging that appellant made the alteration. This count, however, was not submitted to the jury, but the following count was: Omitting formal parts, the second count charges that:

“On or about the 25th day of April, A. D. 1912, W. J. Carrell did then and there willfully, knowingly, and fraudulently pass as true, to one J. T. Jordan, a false and forged instrument in writing which had theretofore been made without lawful authority, and with intent to defraud ; and was then of the tenor following [which instrument is set out above], indorsed on the back thereof ‘C. C. Thomas,’ which indorsement, to wit, ‘C. C. Thomas,’ on the back of said instrument, the said W. J. Carrell then and there well knew to be forged, and did then and there so pass the same as true, with the intent to injure and defraud, against the peace and dignity of the state.”

This is signed by the foreman of the grand jury.

It will be noticed from reading the above count that it does not anywhere by innuendo, explanatory averments, or otherwise allege that Fred T. Vickers and Loula Rogers, either or both, had any authority to draw a check against the available school funds of Johnson county. On the face of the instrument it purports to be drawn by two individuals, Fred T. Vickers and Loula Rogers, against the available school fund, to be paid by the bank specified, and drawn in favor of an individual, C. C. Thomas. If we should go to the first count to assist the second count, which we do not believe here can be done, then the explanatory averments are still insufficient, because Loula Rogers, who is alleged to have signed the document, was not, and could not be, deputy county treasurer, and as such would have no authority to issue a check. If Fred T. Vickers, treasurer, had authority to issue the check, he might doubtless authorize her to sign his name to the check, but it is alleged to be signed by her in an official capacity as deputy county treasurer. However, confining ourselves, as we think we should, to the second count charging the passing, there are no averments of any sort that would tend to show authority on the part of Vickers and Bliss Rogers to draw the check against the available school fund. Before this money can be paid out the proper steps must be taken and approved by the county superintendent. It may be the correct rule to state that it is unnecessary that the voncher or check or means of drawing money from the county available school fund should have gone through all of the steps legally prescribed in order to make it the subject of forgery. If one legal step is taken that would be calculated to deceive, and that could be used even as evidence to sustain further steps that might be necessary, under the authorities this might be sufficient. But it is useless to discuss those matters. This count does not undertake anywhere to allege anything in the way of innuendo or explanatory aver-ments which shows the check to be legal. It is not the purpose of the writer to go into a discussion of just what innuendo or explanatory averments may be called for to make a valid indictment, or even that it can be made valid by explanatory averments. The purpose of the opinion, so far as the writer is concerned, is that whatever steps may be required by statute must be followed.

There are several questions suggested for revision. Many exceptions were taken to the charge, and errors presented. One of these will be noticed. The case is one of circumstantial evidence. Appellant’s connection with it is to be deduced entirely from circumstances, so far as any alteration of the instrument is concerned, or knowledge of the fact that it was altered. This called for a charge on circumstantial evidence, which was not given by the court. Exceptions were timely and properly reserved to this omission. This is noticed in passing, because upon trial under another indictment, should it be obtained, under the facts of this case it would be necessary for the court to charge on circumstantial evidence.

Several bills of exception were reserved to the introduction of a great number of checks to show system, intent, etc., as stated by the court qualifying the bills. As presented, these exceptions are well taken. Before these extraneous checks or vouchers can be admitted it must be made to appear they were forgeries as well as connect appellant therewith. Fry v. State, 182 S. W. 331, recently decided by this court. It is not necessary to discuss these bills further.

The other matters may not arise, and are therefore not discussed.

The judgment is reversed, and the prosecution ordered dismissed.
      (&wkey;>For other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    CHANDLER v. STATE.
    (No. 3995.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Criminal Law <&wkey;1184 — Appeal—Reforming Sentence.
    The sentence, not conforming to the indeterminate sentence law, but being for a definite term, will be reformed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. <&wkey;> 1184.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Louie Chandler was convicted, and appeals.
    Reformed and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at 4 years in the penitentiary.

He contends that the evidence is insufficient to sustain the conviction.. We have carefully read and studied all the testimony. In our opinion, it was sufficient. We see no good purpose which could be served by reciting the testimony.

The court, as the law requires, submitted his charge to appellant’s attorney before it was read, and gave him the opportunity to object thereto. At the time he made certain objections thereto and requested some special charges. The court gave the only two of his special charges which should have been given, and correctly refused the others. Evidently the court must have made some changes in his charge after seeing and considering appellant’s objections, and with the specially requested charges given must have met appellant’s objections, for he did not present any bill to the court’s charge, nor afterwards insist upon his objections.

The evidence, in addition to raising the question of assault with intent to murder, also raised that of aggravated assault and of self-defense. Upon the whole, the court submitted all of these questions in apt and proper charges. The trial judge correctly held that the evidence did not raise any issue of appellant acting in defense of either or both of his brothers, and properly refused to give appellant’s charge on fhat subject.

Under the evidence, the court correctly refused to give either of his requested peremptory charges, instructing the jury to acquit him of an assault with intent to murder. Upon the whole, the case was correctly tried. The evidence was amply sufficient to sustain the verdict, and the charge of the court, together with those of the appellant given, correctly submitted every issue raised by the evidence properly to the jury.

The sentence does not conform to our. indeterminate sentence law. It requires con-. finement of the appellant for four years straight. The judgment will here be reformed, so as to conform to the law.

The judgment will be reformed and affirmed.


author: HARPER, J.

text:
    AUSTIN v. STATE.
    (No. 3984.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    Criminal Law <&wkey;1124(3) — -Appeaiy-Record —Questions Presented.
    Where no statement of the evidence heard on the trial accompanies the record, and the record contains no bill of exceptions to the admissibility of any testimony, there is no question presented in a motion for new trial which the Court of Criminal Appeals can review.
    [Ed. Noto. — For other cases, see Criminal Law, Cent. Dig. § 2948; Dee. Dig. <&wkey;>1124(3).]
    Appeal from District Court, Houston County ; John S. Prince, Judge.
    nart Austin was convicted of robbery, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at 10 years’ confinement in the state penitentiary.

No statement of the evidence heard on the trial accompanies the record, and the record contains no bill of exceptions to the admissibility of any testimony. Under such circumstances there is no question presented in the motion for a new trial we can review.

The judgment is affirmed.