text:
    BAKER v. WILLIAMS.
    (No. 5802.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 3, 1917.
    Rehearing Denied Nov. 28, 1917.)
    1.Carriers <s=^247(2) — Right to Go on Station Premises — Negligence—Injuries.
    One intending in good faith to become a passenger, upon a train has a right to go to the station within a reasonable time before the train is expected to depart, and during such time has the right to do whatever may be necessary or proper to facilitate the loading of his baggage on the train, and while he is at the station and so engaged the railroad or its receiver owes a duty to him to exercise ordinary care for his safety, failure in which constitutes actionable negligence, unless the right to recover is defeated by contributory negligence.
    2. Carriers @=»320(2) — Injuries on Station Premises — Reasonableness of Time oe Going to Take Train — Question for Jury.
    In an action for injuries on railroad station premises to which plaintiff had gone with his family at about 11 o’clock at night, at least six hours before departure of the train he intended to take, question ■ of the reasonableness of the time in which plaintiff went to the station held for the jury.
    3. Trial <§=j203(3) — Instructions—Refusal of Request Submitting Converse of Plaintiff’s Propositions.
    In such action, the court erred in refusing to give one of defendant’s requested instructions, submitting the converse of the propositions submitted in a special charge given at plaintiff’s request, that if plaintiff went to the station a reasonable time before train’s departure, the railroad was under duty to exercise reasonable care to have its premises safe; the theory of the case presented by the refused instructions not being embraced in the court’s charge, or in any requested instruction that was given.
    4. Appeal and Error ®=>216(1) — Reservation of Grounds of Review — Request for Instruction.
    Where defendant requested no charge advising the jury as to the measure of damages, and his objection to the omission was not made until after the case was tried and verdict returned, he is not entitled to have the case reversed on appeal for the omission to charge.
    5. Appeal and Error <⅜^215(1) — Failure to Object to Instruction — Waiver.
    An objection to an instruction not urged at the time of trial was waived, and constitutes no ground for reversal.
    Appeal from Travis County Court; William Yon Rosenberg, Jr., Judge.
    Suit by I-Iarrison Williams against James A. Baker, receiver. From a judgment for plaintiff, defendant appeals.
    Judgment reversed, and cause remanded.
    Fisher & ' Fisher and Robert Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellant. Lyndsay D. Hawkins, of Austin, for appellee.
   KEY, C. J.

Appellee recovered a judgment against appellant as receiver of a railroad company on account of personal injuries alleged to haye been sustained by appellee by coming in contact with an obstruction upon a platform at Hutto station. The proof shows that appellee and his family, who had been picking cotton about 2½ miles from Hutto station, went to that station at about 11 o’clock at night for the purpose of becoming passengers and returning to their home in Austin, Tex., upon a train on the railroad operated by appellant, which train was due to pass Hutto about 5:30 a. m. The station was not lighted, the night was dark, and, after unloading his baggage upon the platform, where baggage was frequently placed for shipment, appellee started to follow his family into the station house, when he stumbled or tripped over a gangplank or running board then lying upon the platform, and. as a result of bis fall the testimony tends to show he sustained certain physical injuries.

As the appellee went to the railroad station and sustained the injuries complained of at least sis hours before the train was due upon which he expected to become a passenger, counsel for appellant contend that appellant owed him no duty other than to abstain from willfully, intentionally, or maliciously inflicting injury upon him; and, as it was not alleged or proven that any such injury had been inflicted, appellant, was not liable, and the trial court should have granted his request to so instruct the jury. The law is that any one who intends in good faith to become a passenger upon a railroad train has the right to go to the station within a reasonable time before the train is expected to depart, and during such time he has the right to do whatever may be necessary or proper to facilitate the loading of his baggage upon the train; and, while so at the station and so engaged, the owner or receiver of the railroad owes a duty to such person to exercise ordinary care for his safety; and the failure to exercise such care constitutes actionable negligence, unless the right to recover is defeated by contributory negligence on the part of the person injured.

The proof clearly shows that appellee unloaded his baggage at a place where it was, proper to so do by persons intending to become passengers; and, therefore, if he did so within a time reasonable, with reference to the anticipated departure of the train upon which he expected to become a passenger, then it was appellant’s duty to exercise reasonable or ordinary care to prfevent injury to appellee. Thus it will be seen that, in order to sustain appellant’s contention to hold that the trial court should have peremptorily instructed a verdict, and to reverse and render judgment for him, 'it would be necessary for this court to hold, as a matter of law, that appellee went to the station and sustained his- injuries at an unreasonable time before the train was due. In other words, it would be necessary to hold, as a matter of law, that the employés in control of the station were not required to anticipate that passengers might bring baggage-to the station at 'll o’clock at night and between six and seven hours before the arrival of the train. We are not prepared to accept appellant’s contention to the effect that the question referred to was one of law. On the contrary, we hold that the question of reasonableness of time was and is a question. of fact to be decided by the jury.

However, we sustain appellant’s thirteenth and fourteenth assignments of error, and reverse the case because of the action of the trial court in refusing to give an instruction which appellant had the right to, and did, request, relating to the question of reasonable time. At the request of appellee the court instructed the jury as follows:

“You are charged that when a person goes to a railway station for the purpose of leaving baggage to be transported on a train on which such person intends in good faith to become a passenger, and such person intends in good faith to engage the company operating such station and train to transport such baggage on such train, and such going to such station is not unreasonably in advance of the time at which such train is due to depart, then such person is considered at law as having an invitation from such company to go upon its premises, and such company is required to exercise such care-as a reasonably prudent person would exercise to keep the platforms in connection with such station to which the public do or would naturally resort for the purpose aforesaid, free of any and all obstructions calculated to cause injury to such persons, which such persons might not, in the exercise of ordinary care, discover and avoid.”

The thirteenth and fourteenth assignments of error complain of the action of .the court in refusing to- give requested, instructions Nos. 4 and 6, which would have submitted to the jury the converse of the ⅛⅛⅛⅜-tions submitted in the special charge- request-. ■ ed by appellee and quoted above. The theory of the case presented by the refused instructions was xiot embraced, in the couri’s charge, or in any requested instruction that was given, and therefore the court erred in not giving at least one of the refused instructions. Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway Co. v. Mangham, 95 Tex. 413, 67 S. W. 765.

Appellant also complains .because the court gave no charge advising the jury as to, the measure of damages; but. as that objection was hot made until after the case was .tried and verdict returned, and as appellant requested no charge upon' that subject, we hold that he is not entitled to have the ease reversed upon that ground.

We also note that the sixth paragraph of the court’s charge is subject to the criticism that it assumes that the appellant was guilty of negligence charged against him, and that appellee was entitled to- re'cover; provided he was not guilty of contributory negligence. But as that objection. was not ,urged at the time of the trial, it was waived, and' constitutes no ground for reversal, and is here referred to for the sole purpose of preventing its recurrence upon another trial.

For the reasons heretofore stated, the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, O. J.

license: Public Domain

text:
    CAFFREY v. BARTLETT WESTERN RY. CO.
    (No. 5824.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1917.)
    1. Appeal and Error <$=>742(5) — Briefing . Assignments—General Assignments Not Followed by Propositions or Statement.
    Assignments of error in effect charging that the trial court committed reversible error by instructing the jury to return a verdict for defendant are 'not properly briefed, when not followed either by propositions or statement showing why it is contended that error was committed in directing a verdict for the defendant; the assignments themselves being too general to constitute propositions.
    2. Appeal and Error <$=>700(2)—Reference to Statements of Facts in Brief—Duty of Court to Read Statement.
    Where there are references in plaintiff’s brief reading, “S. of F. p. -,” it is not the duty of the appellate court to read the entire 22 typewritten pages of the statement of facts to verify the statements in the brief that certain facts were proved; such statements being followed by the references.
    3. Appeal and Error <$=>766—Briefs—Com-pliance with Rules—Effect.
    The rules prescribed by the Supreme Court on the subject of briefing cases, especially rules 29, 30, and 31 (142 S. W. xii, xiii), were adopted to relieve appellate courts from the necessity of examining the entire record, and failure to comply with them constitutes an abandonment of the assignment, resulting in affirmance, unless fundamental error is discovered.
    4. Death <$=>76—Death by Wrongful Act-Liability — Causation by Defendant’s Negligence or Wrong.
    A railroad, sued for a wrongful death, was not liable on proof establishing an unexplained injury resulting in the death, but not showing that the injury was caused by any negligent or wrongful act of the road.
    Error fropi District Court, Williamson County; Chas. A. Wilcox, Judge.
    Suit by Mrs. Mary Caffrey against the Bartlett Western Railway Company. To review a judgment for defendant, plaintiff brings error.
    Judgment affirmed.
    Will Glover, of San Antonio, and Mel-asky & Moody, of Taylor, for plaintiff in error. Wilcox, Graves & Metcalfe, of Georgetown, and Stanton Allen, of Bartlett, for defendant in error.
   KEY, O. J.

Mrs. Caffrey brought this suit against the railway company to recover damages, alleging that .the company had wrongfully and negligently caused the death of her husband. It is not necessary to state all the pleadings filed by the defendant, which included a general denial. After hearing all the testimony, the trial judge directed a verdict for the defendant, upon which verdict judgment was rendered for the defendant, and the plaintiff has brought the case to this court by writ of error.

The brief filed on behalf of the plaintiff contains but two assignments of error, each of which in effect charge that the trial court committed reversible error by instructing the jury to return a verdict for the defendant. Neither of the assignments is properly briefed, because the assignments themselves are too general to. constitute propositions, and they are not followed up by either propositions or statement showing why it is contended that error was committed in directing a verdict for the defendant.

In an argument in the plaintiff’s brief it is stated that certain facts were proved; such statements being followed up with the following reference: “(S. of F. p.-.)” Of course, we understand such references to refer to the statement of facts, but not to any particular page thereof, and, as the statement of facts consists of 22 typewritten pages, it is not our duty to read that entire document to verify the statements made in the brief.

The rules prescribed by the Supreme Court upon the subject of briefing eases, and especially rules 29, 30 and 31 (142 S. W. xii, xiii), were adopted for the purpose of relieving appellate courts from the necessity of examining the entire record, and a failure to comply with them constitutes an abandonment of the assignment, with the result that the case will be affirmed, unless fundamental error is discovered, and that character of .error has not been suggested by counsel or discovered by this court.

Counsel for the defendant in error object to a consideration of the assignments, but in the alternative they make a statement in their brief, which has not been controverted by the plaintiff in error, which shows that the proof established an unexplained injury which resulted in the death of Mr. Caffrey, but did not show that it was caused by any negligent or wrongful act of the defendant, and if such was the condition of the testimony, no error was committed in directing a verdict for the defendant.

So our conclusion is that the judgment should be affirmed; and it is so ordered. ^


author: JENKINS, J.

text:
    PLEDGER v. BUSINESS MEN’S ACC. ASS’N OF TEXAS.
    (No. 5775.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 17, 1917.
    Appellant’s Motion for Rehearing Denied Oct. 17, 1917. Denied Finally Nov. 28, 1917.)
    1. Insurance <$=>152(1)—Contracts—Differ-ent Instruments—Construction.
    The application, certificate, and by-laws of a mutual association, where they constitute the contract of insurance, should, if possible, be so construed as to harmonize with each other.
    2. Insurance <$=>162(1)—Mutual Associations—Policy—Construction>-4“ Accidental Death” — “Death by Accidental Means.”
    Where a mutual insurance certificate provided ’that amount of the certificate should be payable “in case of accidental death,” a provision in the by-laws that a beneficiary shall be entitled to benefits for death of member “solely and exclusively by external, violent, and accidental means,” is not ambiguous, and should control the policy, a death produced by acei-dental means being an “accidental death,” although an accidental death may or may not be produced by accidental means.
    [Ed. Note.—Eor other definitions, see Words and Phrases, Eirst and Second Series, Accident; Accidental Means.]
    3. INSUBANCE <@=3152(1)—MUTUAL ASSOCIATIONS—By-Laws—Presumptions.
    Where a certificate of a mutual association refers to the by-laws as part of the contract of insurance and a copy of the by-laws is furnished, the member is presumed to have read the same.
    Appeal from District Court, Travis Conn-' ty; Chas. A. Wilcox, Judge.
    On rehearing.
    Former opinion reversed, and judgment of the trial court affirmed.
    For former opinion, see 197 S. W. 889.
    E. R. Pedigo and Lyndsay D. Hawkins, both of Austin, for appellant. White, Cart-ledge & Graves, of Austin, for appellee.
   On Motion for 'Rehearing.

JENKINS, J.

We adhere to the views expressed in our original opinion herein as to the distinction between accidental death and death by accidental means; also that, where there is a conflict between the plain and unambiguous terms of the policy and the bylaws, the policy will govern. But a more careful examination of the policy and the bylaws of appellee, aided by the able argument of appellee accompanying its motion for a rehearing, has convinced us that we were in error in holding that there is such conflict in the instant case.

There can be no question but that the charter of the association, the application for membership, the by-laws, and the policy together constitute the contract of insurance. In the instant ease section 5, art. 1, so declares. It is elementary that where the contract is evidenced by different instruments, they should, if possible, be so construed as to make each harmonize with the others.. We think this can be done in the instant case.

The certificate insured the deceased against “accidental death.” He died an accidental death. But when the certificate is read in connection with the by-laws, it is evident that it did not insure the deceased against every character of accidental death. Several exceptions are plainly enumerated in the by-laws, such as the death must not have occurred beyond the United States, or in violation of law, etc. The policy declares that “liability” to pay in any case shall be subject to “all of the limitations * * ⅜ of the by-laws.” One of these limitations is that the death must have been produced by accidental means. This limitation does not contradict the agreement contained in the policy to pay in the event of accidental death, but limits the same to a certain character of accidental death, viz. that produced by accidental means. A death produced by accidental means is an accidental death. An accidental death may or may not be produced by accidental means.

We have also reached the conclusion that the limitation of liability in the by-laws to death by accidental means is not a “lurking clause.” Both the application made by the deceased and the policy issued to him called his attention to the by-laws as a part of the contract. He was furnished with a copy, and is presumed to have read the same, and to be bound thereby. Bacon on Life and Accidental Ins., vol. 1, p. 171; 14 R. C. L. 484; 1 Cooley’s Ins. Brief, 692; 7 C. J. 1078. It is true that the by-laws of appellee are lengthy, but they are subdivided into articles with appropriate subheads in plain capital letters. Had the deceased casually glanced through them he would have seen “ARTICLE V. POLICIES.” This is the part of the bylaws in which naturally he would have been interested. Had he read the first section under this subhead, which is section No. 27 of the by-laws, he would have seen that the liability of the association was limited to deaths and to injuries caused “solely and exclusively by external, violent and accidental means.” In view of this language, and the further limitations contained in sections 28 and 29 under said subhead, we think that it must be held that the deceased was not misled as to the character of his policy.

For the reasons stated, appellee’s motion for a rehearing is granted, the judgment of reversal heretofore rendered by this court is set aside, and the judgment of the trial court is affirmed.

Motion granted. Judgment affirmed.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ‘ JENKINS, J.

text:
    BROWN v. ARHELGER.
    (No. 5835.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 14, 1917.)
    Bills and Notes'<@==3457—Actions—Parties Plaintiff—Joinder op Paetnee.
    Where defendant made a note payable to one partner alone and such partner did not indorse it, the other partner was not an indispensable party to the payee partner’s suit on the note.
    Appeal from San Saha County Court; J, T. Hartley, Judge.
    Action by G. A. Arhelger against Joab Brown. Judgment 'for plaintiff, and defendant appeals.
    Affirmed.
    • Walker & Burleson, of San Saba, for appellant. Johnson & Braly, of San Saba, for appellee.
   Findings of Fact.

‘ JENKINS, J.

We adopt as our findings of fact the following from appellant’s brief:

“The San Saba Manufacturing Company was the style of a partnership doing business in the town of San Saba, and was composed of G. A. Arhelger and Clay Kuykendall, G. A. Arhelger being the general manager. Joab Brown, appellant, became indebted to them and executed his note for said amount, which was payable to G. A. Arhelger alone. Brown paid part of the note, and was sued for the balance. The suit was brought in the name of G. A.' Arhelger alone. Upon the trial it developed that Olay Kuykendall was an eoual owner with G. A. Ar-helger in the note sued upon; thereupon appellant’s attorneys suggested that there was a nonjoinder of parties plaintiff; that Olay Kuy-kendall' was a necessary .party, and moved the court to dismiss the case, which being overruled, the trial proceeded, and judgment in favor of G. A. Arhelger alone was rendered against appellant.”

Opinion.

There is but one issue in this case, and that is whether or not Olay Kuykendall was a necessary party plaintiff. We sustain the ruling of the trial court that he was not. Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; Wimbish v. Holt, 26 Tex. 673; Brown v. Chenoworth, 51 Tex. 477; Allison v. Insurance Co., 87 Tex. 593, 30 S. W. 547; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S. W. 30; Knight v. Holloman, 6 Tex. 162; Butler v. Robertson, 11 Tex. 143; 8 C. J. 822, § 1084. We quote from Corpus Juris, supra, as follows:

“The holder of the legal title [of a note] may sue, although not the full owner.”

This text is sustained by the Texas authorities above cited. Arhelger being the payee, and not having indorsed the note, he was the legal owner of same.

Finding no error of record, the judgment nf the trial court is affirmed.
      ©soFor other cases see same topic and KBY-NUMBEP ⅛ all Key-Numbered Digests and Indexes


author: IIALU, J.

text:
    McAFEE v. SWEPSTON et al.
    (No. 1209.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1917.
    Rehearing Denied Nov. 28, 1917.)
    Appeal and Error @=>1009(2) — Review—Decree — Finding Supported by Evidence-Constructive Trust.
    Findings of fact supported by evidence, in suit to establish a trust in a note given to one of the defendants, representing commissions earned by plaintiff and the other defendants, as taken by such defendant, with knowledge of the facts, pursuant to conspiracy with the other defendants to defeat plaintiff’s interest, held, to authorize the decree for plaintiff.
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    Suit by J. B. Swepston and another against C. R. McAfee and others.- Decree for plaintiffs, and the named defendant appeals.
    Affirmed.
    A. S. Rollins and Thos. F. Turner, both of Amarillo, l'or appellant. Dennis Zimmer-manm and Culton & Taylor, all of Tulia, for appellees.
   IIALU, J.

Appellees Swepston & Hamilton, who were real estate brokers in Swisher county, filed this Sjuit' against Ji D. Cooper, U. S. Gober, Miss Frankie Gober, and C. R. Mc-Afee, to recover an undivided one-fourth interest in certain vendor’s lien notes executed by R. D. McMurtry to C. R. McAfee. The face value of the notes is alleged to be $3,-200. The amended petition also alleges that the notes were the joint property of plaintiffs and defendants; that they represented a trust fund in which plaintiffs were interested ; that defendants Cooper, U. S. Gober, and McAfee had entered into a conspiracy for the purpose of defeating plaintiff’s interest; that the notes represented the commissions due upon a certain real estate deal described in the petition. The appellant Mc-Afee answered by general and special denials, and set up the fact that he had control of the land mentioned in the petition and listed it with U. S. Gober for sale at $8 per acre, net to appellant, the said Gober being permitted to add 50 cents an acre as his commissions for procuring a purchaser; that appellant had never at any time listed the land with Swepston & Hamilton, and had never promised to pay them any commissions; that the notes did not represent a trust fund, but that McAfee, at the request of Gober, without notice of any claim on the part of Sweps-ton & Hamilton, transferred U. S. Gober’s part of the commission arising from the deal to Miss Frankie Gober, and thát he paid J. L. Cooper a valuable consideration for the remainder of said commissions. A trial before the court without a 'jury resulted in a judgment decreeing that Swepston & Hamilton recover to the extent of $400, being their interest in one of the notes, that sum being a one-eighth interest in the entire amount represented by said notes, and that one of said notes be deposited in the registry of the court. -

Appellant contends, under several assignments, that because there wasj no contractual relations between appellant and appellees Swepston & Hamilton, the judgment against him is erroneous. No personal judgment was rendered against appellant. The extent of the court’s decree is that appellee should have and recover to the amount of $400 in one of the notes which appellant held and which evidenced the entire commissions due. Among other facts, the court found that Mc-Murtry executed three notes instead of two, as originally agreed upon, and that if he had executed only two notes for $1,600 each, one of them would have been the property of appellant and that the other should have been divided- — one half to U. S. Gober and the other half equally between plaintiffs and J. D. Cooper, and that $400 was a reasonable Value for the services rendered by plaintiffs in consummating the sale, and' that such services had been accepted by Gober, Mc-Afee, and Cooper; that Gober, McAfee, and Cooper all knew that plaintiffs were negotiating and endeavoring to induce Mc-Murtry to purchase the land and accept their services; that prior to the time the deal was consummated, and prior to the time when Cooper sold his interest in said notes to Mc-Afee, the latter had been informed by McMur-try that there was some kind of a controversy existing between TJ. S. Gober and J. L. Cooper and plaintiffs with reference to the deal: that on the night before said deal was finally closed in Canyon City, Swepston went to Canyon with McMurtry to assist in closing it; that J. L. Cooper was also there at that time; that McAfee saw Swepston there with McMurtry and was informed by McMur-try'that Swepston was there closing up the deal; that McAfee purposely evaded Sweps-ton to prevent the latter from mentioning the matter of his interest in the commissions, and that McAfee was not a bona fide purchaser of the note in question. There is further evidence tending to sustain the finding of-the court in appellees’ favor upon the issue of conspiracy. This being the state of the record it is unnecessary for us to consider in detail the numerous assignments upon which the controversy is presented.

Bas.ed upon the court’s findings of facts the Judgment is correct, and since there is evidence in the record sufficient to sustain the findings, the judgment is affirmed.
      <S=»For other-cases see same top'ic and KEY-NUMBER in all Key-Numbered Digests and Indexes •


author: HIGGINS, J.

text:
    RIGGS v. BALEMAN et al.
    (No. 730.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 8, 1917.
    Rehearing Denied Dec. 6, 1917.)
    1. Appeal and Error <®=>722(1) — Assignments of Error — Review. ■
    A motion for new trial in a'case tried before the court is not necessary, but where a motion is made the assignments in the motion constitute the assignments of error on appeal under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), and where the assignments of error are not copies of the assignments on motion for new trial, they cannot be reviewed.
    2. Appeal and Error <⅜^>719(1) — Matters Reviewable — Defective Assignments of Error — “Fundamental Errors.”
    In the absence of proper assignments, all errors not apparent on the face of the record, other than “fundamental errors” are waived, and errors are not fundamental if it would be necessary to examine the entire statement of facts to decide on their merits.
    [Ed. Note. — For other definitions, _ see Words and Phrases, First and Second Series, Fundamental Error.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Suit by S. H. Riggs against O. G. Baleman and another. Erom a judgment against only one defendant, plaintiff appeals.
    Affirmed.
    W. W. Moores, of Stephenville, for appellant. Chandler & Pannill, of Stephenville, for appellees.
   HIGGINS, J.

Appellant brought this suit against appellees, Baleman and McClamey, to recover upon certain notes executed by. Baleman to appellant in part payment for certain lands conveyed to Baleman, and for foreclosure against both appellees of the vendor’s lien reserved in the deed of conveyance io secure the payment of said notes. The cause was tried before the court without the aid of a jury, and judgment rendered against Baleman for the amount of the notes and in favor of McClamey, denying foreclosure of the lien. An amended motion for new trial was filed by appellant and overruled, and from the judgment entered this appeal is prosecuted. Findings of fact and conclusions of law were not filed by the trial court.

The assignments of error presented by, appellant in this court are not copies of any of the assignments contained in the motion for new trial. The assignments presented here are entirely reconstructed. Article 1612, R. S., as amended by the Thirty-Third Legislature, page 276 of. the Acts thereof, provides that where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error. See, also, district court rule 101a. This provision of the statute is mandatory, and its salutary purpose is manifest. In a case tried before the court it is not necessary to file a motion for new trial in order to prosecute an appeal, but if such motion be filed, then the assignments therein contained constitute the assignments of error upon appeal.' Cole v. Maccabees, 188 S. W. 699. In this condition of the record, the assignments presented to this court in appellant’s brief cannot be considered. See case cited supra and the following: Edwards v. Youngblood, 160 S. W. 288; Grain Co. v. Burks-Simmons Co., 171 S. W. 1043; Turner v. Turner, 195 S. W. 327; Railway Co. v. King, 174 S. W. 960; Oil Co. v. Crawford, 184 S. W. 728; Dees v. Thompson, 166 S. W. 56; Bradshaw v. Kearby, 168 S. W. 436; Nat., etc., v. Gomillion, 174 S. W. 330; Watson v. Patrick, 174 S. W. 632. The cases cited firmly established the rule announced. The statute upon the subject is plain and unambiguous, and this court has no authority to disregard the same.

In the absence of proper assignments presented in this court, we can consider only “errors in law apparent on the face of the record,” or, as they are sometimes designated, “fundamental errors.” All other errors not assigned are waived. District court rule 101a (159 S. W. xi); Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; City of Beaumont v. Masterson, 142 S. W. 984; McPhaul v. Byrd, 174 S. W. 644; Holloman v. Black, 188 S. W, 973. There is no fundamental error presented by this record, so far as we can ascertain. In ordef to pass upon the merits of the assignments presented, it would be necessary, for this court to examine the entire statement of facts, and it is definitely established by the decision of Judge Brown, in Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85, that the term “fundamental error” is not one which requires an examination and weighing of the evidence to determine whether or not the assignment is well taken. A fundamental error lias also been defined as one readily seen, lying at the base and foundation of the proceeding and affecting the judgment necessarily. Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; Searcy v. Grant, supra; Fuqua v. Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; Harris v. Petty, 66 Tex. 514, 1 S. W. 525.

If we are at liberty to examine the state- ' ment of facts in this case for the purpose of ascertaining whether or not error has been committed, it still cannot be said that the errors complained of by appellant are readily seen. So under neither of the definitions given in the cases to which we have referred can the contentions of appellant be considered as presenting fundamental error.

In the absence of any errors properly assigned or fundamental errors appearing, it follows that the judgment must be affirmed. This court is not desirous of disposing of appeals upon questions of practice, and desires to pass upon same upon their merits, but in order to do so in this case it would transgress the statutory provision anl rules announced in the authorities above cited, which cannot be done.

Affirmed.

WALTHALL, J., did not sit, being absent on Committee of Judges assisting the Supreme Court. .
      tteaFor other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    QUANAH, A. & P. RY. CO. v. WARREN.
    (No. 1241.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 30, 1917.)
    1. Carriers <§=>174 — Delivery to Connecting Caeeiees — Defense.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art! 6589, requiring suitable Snclosures for freight at stations on penalty of liability for loss of goods, and article 6693, making it the duty of all railroad companies to provide adequate depot buildings, it is no defense to a consignee’s action for withholding goods that freight could not have been left at a point at which there was no station without loss, so that evidence that such was the fact was properly excluded.
    2. Damages <§=>87(2) — Punitive Damages— Necessity of Showing Actual Damage.
    The general rule is that punitive damages cannot be awarded unless actual damages are first proved.
    3. Carriers ©==186 — Withholding Goods— Penalties — Damages.
    Assuming that before a shipper can recover the penalty for failure to, maintain a freight depot at which his goods ’ could be delivered, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6671, he must show pecuniary damage, such damage is shown in the interest upon the value of goods shipped and withheld.
    4. Carriers <§=>181¼ [New, vol. 12 Key-No. Series] — Withholding Goods — Penalties— Damages. '
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6671, providing a penalty for failure to maintain proper freight depots, is independent of the common-law right of action for refusing to deliver goods, and the remedy may be pursued without reference to actual damages, and’ the common-law rule that where no actual damage-results, exemplary damages- cannot be recovered does not apply.
    5. Carriers <§=>171 — Actions — Evidence —Admissibility.
    Since the shipper is not a party to the waybill made out for the convenience of the carrier, he is not bound by it,'and it is not admissible-in evidence against him to show the destination of the goods.
    6. Carriers <§=>185(3) — Shipment of Good» Destination — Evidence—Sufficiency.
    Evidence held sufficient to establish consignee’s contention as to destination of goods shipped.
    Appeal from Motley County Court; A. B_ Crane, Judge.
    Action by C. W. Warren against the Quan-ah, Acme ' & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 184 S. W. 232.
    G. E. Hamilton, of Matador, and J. P. Marrs, of Quanab, for appellant. T. T. Boul-din, of Matador, for appellee.
   HALL, J.

Appellee filed this suit to recover the statutory penalty from appellant for refusing to deliver certain goods described in the petition, and the further sum of $20,, as loss of profits. It is alleged that the goods were shipped from Dallas, consigned to appellee, destination Matador, Tex.; that in due time they were received by appellant from its connecting carrier and transported to Roaring ¡springs, where it held said goods, refusing to deliver them at Matador Junction to its connecting carrier, the- Motley County Railway, without lawful excuse for such refusal. Appellant answered by general and special exceptions, general denial, and pleaded specially that at the time the shipment sued on moved over its line of road there was no depot, no agent, and no shelter or any accommodations whatever at Matador Junction, whereby freight could be taken care of in less than carload lots if left there by defendant; that the Motley County Railway Company had no-rolling stock of its own; that it made only-one trip a day to the junction and any freight left there by defendant would have been exposed to the depredations of stock, running loose in the pasture where the junction was situated; that it was several miles, from any human habitation, and such freight would be exposed to rain and weather and probably stolen; that the shipment in question was small; was mixed with, much other local freight in a car, some of which was destined for Roaring Springs, some for Matador, and some for Afton, and. it was necessary to- work the freight in said car and separate it before delivery could be made and for want of track and shelter, facilities at the junction it was necessary to carry said freight on to Roaring Springs, the nearest station to the junction where said car could be worked and the freight in question separated from other freight, and then return it to the junction before it could be delivered to its connecting carrier, the Motley County Railway. A trial without a jury resulted in a judgment for $250, as a penalty.

The first assignment of error is that the court, upon objections of appellee, refused to permit appellant’s station agent to testify to facts showing and tending to show that the freight could not have been left at such station without danger of theft, damage, and destruction by animals and the weather. This issue has been discussed several times, and decided adversely to appellant’s contention. The laws of this state require all railroad companies to furnish sufficient facilities for handling freights at junction points, and the fact that neither the defendant railroad company nor its connecting carrier, the Motley County Railway Company, failed to furnish such facilities would be no defense to this action. Articles 6589 and 6693, R. S. 1911; Q., A. & P. Ry. Co. v. Jones, 178 S. W. 858; Q., A. & P. Ry. Co. v. Warren, 184 S. W. 232; Q., A. & P. Ry. Co. v. Moore, 189 S. W. 322.

It is contended under the second assignment that-the court erred in rendering judgment against appellant for a penalty when there was no recovery for actual damages. The general rule is that punitive damages cannot be awarded unless actual damages are first proven. Appellant insists that, the recovery being based upon a' penal statute, it must be strictly construed. Article 6671, Vernon’s Say les’ Civil Statutes, provides:

“In case any railroad subject to this chapter shall do, cause to be done or permit to be done any matter, act or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter or thing herein required to be done by it, such railroad shall be liable to the person or persons, firm or corporation injured thereby for the damages sustained in consequence of such violation; and in case said railroad company shall be guilty of extortion or discrimination as' by this chapter defined, then, in addition to such damages, such railroad shall pay to the person, firm or corporation injured thereby a penalty of not less than $125.-00 nor more than $500.00,_ to be recovered in any court of competent jurisdiction, in any county into or through which such railroad may run,” etc.

Because the article quoted describes the person entitled to sue as the one “injured thereby,” and that such injured person, “in addition to such damage,” may recover the penalty provided for in the act, it is insisted that appellee was not entitled to recover because the effect of the court’s judgment denying him actual damages shows no actual injury, and the words “in addition to such damages” imply that without the recovery of actual damages the penalty cannot be recovered. With reference to the construction of penal statutes, Brown, Justice, in Thompson v. M., K. & T. Ry. Co. of Texas, 103 Tex. 372, 126 S. W. 257, 128 S. W. 109, says:

“The defendant in error invokes the rule that penal statutes must be strictly construed, and the honorable Court of Civil Appeals adopted the suggestion, applying the rule in its extreme rigor to the facts of this case. The rule upon this subject which now prevails, being sustained by the best of authority, is forcibly expressed by Chief Justice Fuller of the United States Supreme Court, in the case of U. S. v. Lacher, 134 U. S. 629, 10 Sup. Ct. 627, 33 L. Ed. 1080, by the following quotation from Mr. Sedgwick, on Statutory and Constitutional Law: ‘ “The rule that statutes of this class are to be construed' strictly is far from being a rigid or unbending one, or rather it has, in modern times, been so modified and explained away as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing, on the one hand, to extend the punishment to cases which are not clearly embraced in them, and, on the other, equally refusing, by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope.” This passage is quoted by Bramwell in Attorney General v. .Sillem, 2 H. & C. 532, as one “in which good sense, force, and propriety of language are equally conspicuous, and which is amply borne out by the authorities, English and American, which he cites.” ’ * * * in con_ struing penal statutes the proper course is to search out and to follow the true intent of the Legislature, and to adopt that sense which harmonizes best with the context, and promotes, in the fullest manner, the apparent policy and objects of the Legislature.”

The language above quoted was used by Judge Brown in construing article 4575, Revised Statutes of 1895, which is the same as article 6671. The legislative intent in the enactment of penalties against carriers is clearly expressed by Hoke, Justice, in Summers v. Southern Railway Co., 138 N. C. 295, 50 S. E. 715, in the following words:

“These penalties are not given solely on the idea of making a pecuniary compensation to the person injured, but usually for the more important purpose of enforcing the performance of the duty required by public policy or positive statutory enactment. As said in Grocery Co. v. Railway, 136 N. C. 404, 48 S. E. 801: ‘The object in providing a penalty is clearly to compel the common carrier to perform its duty to the public.’ They are sometimes enforceable only by the state, sometimes they are given to any one who shall sue for them, and again the recovery is confined, as in this instance, to the party aggrieved, the person having a peculiar and special interest in enforcing the performance of the duty. In giving the penalty to the party aggrieved, the statute simply designates the person who shall have a right to sue, and restricts it to him who, by the contract, has acquired the right to demand that the service he rendered. The party aggrieved, in statutes of this character, is one whose legal right is denied, and the penalty is enforceable, independent of pecuniary injury. Switzler v. Rodman, 48 Mo. 197; Qualls v. Sayles, 18 Tex. Civ. App. 400, 45 S. W. 839; Grocery Co. v. Railway, supra.”

We are not able to determine why the trial judge did not award actual damages, at least to the extent of lawful interest upon the value of the goods shipped. This was certainly recoverable, and if pecuniary injury is necessary to support a suit for the recovery of the penalty, it is present in this case. In Texas Central Railroad Co. v. Hannay-Frerichs & Co., 104 Tex. 603, 142 S. W. 1165, Judge Brown, said in construing article 4496, R. S. 1895 (article 6554, V. S. C. St.):

“It is insisted that the language of article 4496, Revised Statutes 1895, implies that other damages had accrued, and that the 5 per cent, was to be given only ‘in addition’ to other damages. We do not agree to that construction, but, if correct, other damages did accrue by reason of the delay; that is, the deprivation of the use of the money invested. The language was used to show1 that the 5 per cent, was not intended to exclude other damages for delay.”
“Statutes which subject carriers to a penalty for failure to transport goods within a designated time do not in any way affect the carrier’s common-law duty to transport within a reasonable time, nor its consequent common-law liability for failure to perform such duty, and they have no application to an action to enforce such liability.” 10 C. J. P. 285, § 405, and note.

In our opinion, the statute providing for the recovery of a penalty to enforce the duty which the carrier owes to the public is independent of the common-law right of action for damages for refusing to deliver goods; and, the remedy may be pursued without reference to any actual damages or pecuniary interest sustained by the consignee or the shipper of the goods in question, and the common-law rule that where no actual damages result' exemplary damages cannot be recovered has ho application. The Thompson Case, supra, was one where the appellant sued to recover the penalty provided by statute against the earlier for changing the route designated by him in the shipment of certain lumber. It appears that Thompson preferred to have his' lumber shipped over one route; that the appellee arbitrarily and in' violation "of his directions changed the routing. It seems that the rate between the initial point and the destination over the various routes was the same, and it appears that there was very little difference in mileage. Judge Brown states that Thompson had the undoubted right in shipping his cars of,lumber to designate the route by which they’ should be carried by the different railroads over which they were destined to pass, but it appears that no measure of damages for the violation of such right was announced, nor did Thompson endeavor to show any pecuniary injury. Nevertheless he was adjudged to be entitled to recover.

Under the third assignment appellant insists that the evidence shows that the shipment of freight was consigned to plaintiff at Roaring Springs, and not to him at Matador. The bill of lading was never introduced in evidence. It appears that appellant’s station agent at Roaring Springs sent appellee a written notice, in which it is stated that the freight in question had been received at that station, consigned to appellee at Matador, and about the same time informed appellee over the telephone that he had such goods on hand consigned to appellee at Matador. The agent testified that he did not remember sending any such written notice to appellee and did not recollect telling him over the phone that the goods were consigned to him at Matador. The court permitted a waybill of the goods made at Dallas to be introduced in evidence to contradict appellee’s contention that Matador was the destination named in the bill of lading. The waybill was made out by and for the use of the carriers and their employes in handling the freight in transit, appellee was not a party to it, and was not bound by any recitals of facts shown by it. It should not have been admitted in evidence. Granting that it was properly admitted, the result was to create a conflict in the'testimony, and the evidence is sufficient to support the court’s finding that the goods were consigned to appellee at Matador. It appears that the notice sent by appellant's station agent at Roaring Springs to appellee informed him that there was some freight consigned to him at Matador being held at Roaring Springs, but owing to a dispute between appellant and the Motely County Railway Company over a division of freight, ap-pellee’s shipment was being held until the difference between the two railway companies should be settled. As decided by this court; in the cases first cited in this opinion, appellant was not warranted in refusing to deliver the -fréight to its connecting carrier upon the ground stated in the notice.

The judgment is affirmed.
      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    QUANAH, A. & P. RY. CO. v. WARREN.
    (No. 1242.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1917.)
    Appeal from Motley County Court; A. B. Crane, Judge.
    Action by C. W. Warren against the Quanali, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    G. E. Hamilton, of Matador, and J. P. Marrs, of Quanah, for appellant. T. T. Bouldin, of Matador, for appellee.
   HALL, J.

We find that the questions presented in this case are the same questions presented in cause No. 1241, 198 S. W. 814, between the same parties, and for the reasons stated in our opinion in cause 1241 the judgment in this case is affirmed.


author: PRENDERGAST, J.

text:
    ZARAFONETIS v. STATE.
    (No. 4525.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    On Rehearing, Nov. 7, 1917. Rehearing Denied Dec. 5, 1917.)
    1. Criminal Law <§=>1076(1)— Appeal — Defective Recognizance — Dismissal.
    The recognizance being fatally defective, the state’s motion to dismiss defendant’s appeal on such ground will be granted.
    On Rehearing.
    2. Witnesses <§=3277(1) — Cross-Examination of Accused — Motive and Animus.
    Accused’s testimony on direct examination showing that prosecuting witness had been a party to the shooting of accused on a former occasion, it was proper on cross-examination, for the purpose of showing motive and animus, to show that the prosecution of accused’s brother-in-law by the prosecuting witness for killing a cousin was the cause of accused’s unfriendly feeling toward the prosecuting witness.
    3. Witnesses <§=3370(1) — Animus op Adverse Witness.
    Testimony of the animus of an adverse witness to either side, and the extent and cause of it, is admissible.
    4. Homicide <§=>166(1) — Assault to Kill-Motive — Admissibility op Evidence.
    The state can introduce testimony tending to show a motive, on the part of an accused for any shooting or killing.
    5. Witnesses <§=3388(5) — Impeachment op Accused-Statements out op Court.
    On cross-examination of accused for the purpose of laying the predicate for impeachment, the state had the right to ask if after the killing of the prosecuting witness’ cousin by defendant’s brother-in-law, the prosecuting witness did not tell accused in the presence of another that he did not want any more trouble over the killing, and accused having denied such conversation, the court did not err in permitting the prosecuting witness to testify that he did have such conversation.
    6. Criminal Law <§=>1144(12) — Review—Expert Witnesses — Competency.
    The court having ruled a witness competent as an expert, and the bill of exceptions not showing that witness was not an expert on the subject, reversible error is not shown.
    7. Criminal Law <⅜=>1169(2) — Appeal — Harmless Error-Erroneous Testimony. .
    Even if the court erroneously admitted the testimony of a witness there is no reversible error, where another witness testified fully to the same state of fact without objection of accused.
    8. Homicide <§=>166(3) — Witnesses <§=3372(2) —Animus—Motive—Evidence.
    In a prosecution for assault to kill, defendant introduced as a witness his brother-in-law who gave material testimony in defense. Upon cross-examination by the state it was proved by the witness that he had some time before shot and killed the cousin of the prosecuting witness, and that he had been indicted for murder, pleaded guilty to manslaughter, and his sentence suspended. Held, the testimony was admissible for the purpose of showing the animus of the witness against the prosecuting witness, and also on the issue of defendant’s motive in shooting the prosecuting witness.
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Harry Zarafonetis was convicted of aggravated assault, and appeals.
    Affirmed.
    W. W. Hair, of Temple, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault.

The Assistant Attorney General’s motion to dismiss the appeal because of a fatally defective recognizance must be granted. The recognizance is so fatally defective as to give this court no jurisdiction.

Appeal dismissed.

On Rehearing.

Very soon after this case was dismissed because of a fatally defective recognizance appellant entered into a correct recognizance under the statute and has filed herein a properly certified copy thereof. The cause is therefore reinstated.

Appellant was indicted for an assault with intent to kill George Zacharias, and was tried therefor. On the trial the jury convicted him of an aggravated assault. The testimony by the state made a clear case of an assault with intent to kill as alleged. It also clearly authorized appellant’s conviction for an aggravated assault, and disproved appellant’s claimed self-defense. The evidence was conflicting; however, and appellant’s testimony, if it had been believed, would have been sufficient to show that he shot George Zacharias in self-defense.

In the whole testimony by the state, and up to the time it rested, it introduced no testimony at all about John Demas; who he was, or what he had done, or that he was related in any way to appellant. As soon as the state rested appellant first himself testified, and among other things he testified that said Demás was his brother-in-law and that they lived together in the same house in Temple, and it was shown that they had done so for -years until up to the time of this alleged offense and afterwards. He also testified that several months before this offense was charged he, himself, had been shot in Temple by some one else and the drift of his whole testimony, and other testimony introduced by him, was to seek to connect said prosecuting witness as a party to his being shot on that occasion. In cross-examination of him, and by other testimony, the state had the right to prove a motive iby appellant for shooting prosecuting witness on this occasion, and also to show animus of appellant toward said prosecuting witness and the extent and cause therefor. Thereupon the state, upon cross-examination of him, asked him what his feelings towards said prosecuting witness was. He answered: “I haven’t got any love for him.” Appellant did not object to this, but the state thereupon proceeded to further ask him if said prosecuting witness did not prosecute his brother-in-law (said Demás) for killing his (said prosecuting witness’) cousin. He at first denied that he knew that, but said he knew that Demás was convicted of killing said prosecuting witness’ cousin, and' after asking other questions along the same line, and appellant parrying | them, the state finally ashed him that if prior to the time of the killing of the prosecuting witness’ cousin by his brother-in-law, Demás, he and the prosecuting witness were not . friendly, if that was not the matter that caused his unfriendliness against the prosecuting witness, and he replied that that was the case, and, further, that since then he had not been friendly with the prosecuting witness. The court admitted this testimony, as he states in modification of appellant’s bill, to show motive by defendant and his animus toward the prosecuting witness.

That testimony of the animus of an adverse witness to either side, and the extent and cause of it, is admissible, is so well established by all the authorities that there is no necessity of citing them or discussing the question; but see 1 Branch’s An. P. C. p. 93, for a collation of a large number of authorities. It is also so well established that the state can introduce testimony tending to show a motive on the part of an accused for any shooting or killing that it is unnecessary to discuss that question or cite authorities; but on this point see 2 Branch’s An. P. C. §§ 1879 et seq., under his treatment of “motive.” This testimony objected to 'by appellant was admissible.

For the purpose of impeaching the appellant, as well as a proper cross-examination of appellant on testimony that he had himself given, the state had the right to lay the predicate to impeach him under the circumstances by asking him, if a few days after the killing of the prosecuting witness’ cousin by appellant’s brother-in-law, Demás, the prosecuting witness did not tell him, in the presence of Hugh Smith, the sheriff of that county, that he did not want any more trouble over that killing; that he had a family and did not want any more trouble about it. Appellant denied that the prosecuting witness had any such conversation with him at the time asked about, or told him any such thing; and the court did not err in permitting said prosecuting witness to testify that he did have such conversation with appellant at the said time and place. This testimony, under the circumstances, was pertinent and admissible for the purpose of impeaching appellant.

Appellant introduced Mr. Salsberry, a policeman of Temple, who testified that, on the night appellant was shot by some one, some seven or eight months before this shooting, he with other officers had bloodhounds brought to the park where that shooting occurred, and that they trailed from there to said prosecuting witness’ house and stopped there. This was introduced on appellant’s theory that said prosecuting witness was one of the parties who had shot him on said occasion, or was connected with whoever did shoot him. On cross-examination he testified, in answer to the state’s question that some few minutes after the shooting in this case he was notified and went to the prosecuting witness’ house, reaching there and finding him in bed 15 minutes after the shooting, that said prosecuting witness at the time gave to Mr. Fisher, who was with him, his gun, and that he examined it and saw that it had five loaded and one empty chamber. That he had been a peace officer about three years and had a little experience with firearms; that the shells of the pistol of said prosecuting witness were loaded with black powder. The state then asked him if the gun had been recently fired and he answered: “No, sir; I don’t think it had.” He was asked: “Have you had experience with firearms?” He answered: “Not with pistols.” He was asked if he knew the effect of firing a charge of black powder through a gun; if it leaves an odor in the barrel, and he answered: “Xes, sir; it does.”' He was asked if there was anything in the barrel of that gun of that character that would indicate it had" recently been fired, and he answered there was not. The appellant objected to these questions and answers of the witness, among others, for the reason that he claimed it was immaterial and irrelevant and in appellant’s absence was hearsay, and because the witness had not qualified as an expert on firearms or the effects of the discharge of powder. The bill does not show what other examination, if any, was made of the witness as to his knowledge about the matter he testified to. His objection that the witness had not qualified as an expert was mere objection, not approved as a fact by the judge. From the bill we cannot tell that the witness was not an expert sufficiently to have testified on the subject, and in deference to the court’s ruling on the question this bill would not present reversible error. Holder v. State, 194 S. W. 164.

But even if it should be held that the court erroneously admitted the testimony of this witness, it would not present reversible error, because Mr. Fisher, who was with said witness at the time, testified fully to the same state of fact without any objection at all by appellant, said Fisher testifying that just after the shooting he went to the prosecuting witness’ house (he was with said Salsberry), found him there and asked for his pistol which he gave. That he had been an officer for 12 years, and had had experience with firearms. He told about the shells in the pistol being loaded with black powder; that he always thought he could tell after a gun had recently been fired with black powder because it leaves a black dim stain in it and smells like burnt powder; that he did not think the gun had been' recently fired.

“I examined it for the purpose of ascertaining whether it was'fired or not. I pushed the hulls out and held it between me and the light and I could not tell it if it had.”

The law is that even if inadmissible testimony is admitted over an accused’s objection, it does not present reversible error, when other witnesses testify to the same thing without any objection by the accused. See 1 Vernon’s Crim. Stat. p. 904, where he collates a large number of cases so holding.

Appellant introduced his said brother-in-law, John Demas, as a witness for him, and he gave material testimony m his defense. The state, upon cross-examination of him, proved by him that he had some time before shot and killed the cousin of said prosecuting witness and that he had been indicted for Ms murder, pleaded guilty to manslaughter, and his sentence had been suspended. This testimony was admissible for the purpose of showing the animus of tMs witness against said prosecuting witness, and also on the issue of appellant’s motive in shooting said prosecuting witness. Besides, the state proved the same state of fact by appellant himself to which there was no objection.

No reversible error is shown in this case. The judgment is affirmed.
      ®=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■ DAVIDSON, P. J.

text:
    BRINKLEY v. STATE.
    (No. 4638.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.)
    1. Assault and Battery <§==>92 — “Assault with Prohibited Weapon.”
    Acts 33d Leg. c. 114, § 1 (Vernon’s Ann. Pen. Code 1916, art. 1024a), under which accused was indicted, provides that if any person shall willfully commit an assault upon another with a pistol, being carried unlawfully, he shall be deemed guilty of an assault with a prohibited weapon. The following article provides that such section shall not be construed to affect Pen. Code 1911, art. 475, relating to unlawfully carrying arms. The state’s theory was that accused shot prosecutor with intent to kill him. Held, that under such theory, and accused’s evidence that he fired in self-defense and in defense of his brother, there could be no conviction, under article 1024a, which required unlawful carrying of weapon, which was not made out, in view of testimony of accused and his brother that the pistol was carried in the wagon box.
    2. Assault and Battery <§=>86^P articular Oeeenses — Assault with Prohibited Weapon — Evidence—Admissibility.
    In prosecution under Acts 33d Leg. c. 114, § 1 (Vernon’s Ann. Pen. Code 1916, art. 1024a), for assault with prohibited weapon, it was error to exclude accused’s testimony that he feared the prosecutor and asked protection from officers, which was refused.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    Jake Brinkley was convicted of an offense, and be appeals.
    Reversed and remanded.
    E. S. Chambers and T. T. Thompson, both of Clarksville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   ■ DAVIDSON, P. J.

Appellant was tried and convicted under article 1024a of the Acts of 1913, found in Branch’s Ann. Penal Code at page 940. 'His punishment was assessed at 18 months in the penitentiary for willfully making an assault upon Maynard Wilburn.

The indictment contains twd counts, one for assault to murder, and the other for willfully making an assault on Wilburn with a weapon unlawfully carried. Both counts were submitted; the jury convicted, however, under the second count.

Briefly stated, the evidence shows that Ben Brinkley, jointly charged with appellant, had killed one of the Wilburns. There was evidence that Maynard Wilburn had made threats against all of the Brinkleys. In the evening of and prior to the trouble defendants and Maynard Wilburn were in the town of Clarksville: Defendants were uneasy from the movements of Maynard Wilburn that he might institute trouble with them, and they believed him to be armed. Eor this reason they avoided him, and finally left town. Directly after their departure Wilburn followed and overtook them about two miles south of Clarksville. A shooting scrape occurred. Wilburn testified that as he passed the Brinkleys in their wagon, he being in a buggy, Ben Brinkley shot him, the ball striking him under the left shoulder, ranging around to the front; that he fell from his buggy, and Ben Brinkley shot at him a time or two. • He got up and secured Ms pistol, which was in the buggy.

Brinkley’s testimony shows that as Wilburn passed them he ran Ms buggy in front of their team and caught the doubletree at the front of the team and reached to pull Ms pistol. As he did this Brinkley pulled his pistol and fired. Several shots were exchanged, one of which struck Wilburn, which he claimed to be the first shot fired. Appellant testified that he did not carry a pistol, and was not armed; that after the difficulty began his brother informed him that there was a pistol in a box in the wagon, and requested that he secure it and assist him in defending himself; that he went to the box, secured the pistol as directed by his brother, and fired a couple of shots.

If Ben Brinkley made an assault under the circumstances detailed by Wilburn, it would) constitute Mm the aggressor. If Wilburn drew his pistol, or attempted to do so, Ben Brinkley acted in self-defense, and Jake, the defendant, had the right to come to his brother’s assistance. The state’s evidence conveys the idea that Ben Brinkley fired at Wilburn with the intent and purpose to kill. If so, this act will not bring it within, the terms of article 1024a, supra. That statute reads thus:

“If any person shall willfully commit an assault, or an assault and battery, upon another with a pistol * * * while the same was being carried unlawfully by the person committing said assault, he shall be deemed guilty of an assault with a prohibited weapon, and upon conviction shall be punished by confinement,” etc.

The succeeding article provides that this statute shall not he construed to in any manner affect article 475, Revised Penal Code 1911, relating to unlawfully carrying arms, bub shall be cumulative thereof. Article 1024a, supra, evidently was intended to create a distinct offense. This is evidenced by the casual reading of the statute. That article provides expressly that, in order to constitute such offense, the person must willfully commit an assault, or an assault and battery, upon another with a pistol unlawfully carried, as inhibited by article 475, supra. It will therefore be observed that there must first be an assault, or assault and battery; second, it must be willfully committed; and, third, by the use of a weapon unlawfully carried, which necessarily carries with it the idea that the weapon must be carried in violation. of law. The terms of these statutes embody and convey the idea that the weapon must he unlawfully carried as inhibited by article 475, supra. Unless the weapon is thus carried, this offense would not Be chargeable. The assault, being willful, must be aggressive. This excludes necessarily the idea of self-defense. It may be also noticed that by the language of the statute assaults with ulterior purposes or intents are excluded from its operation. This statute, therefore, was enacted to carve out a particular or peculiar character of assault such as is therein defined, making it different from other assaults, and especially of assault with ulterior intents and purposes. It therefore would not constitute the offense of assault to murder, because that offense carries an ulterior purpose or design and intent, and prescribes an entirely different penalty. They are not in conflict with each other. Article 1024a, supra, does not directly, or even by implication, repeal or interfere with the definition of assaults with such ulterior purposes or intents. It does not repeal the law of aggravated assault. An aggravated assault may be committed by the use of a deadly weapon, and this whether that weapon be carried lawfully or unlawfully. Under this statute, however, the assault is not chargeable unless the weapon is unlawfully carried, and it would make no difference how aggravated the assault would be. This would not be true as to aggravated assault when committed -with a deadly weapon. It is not essential that an aggravated assault be willfully done, as under this statute, or that it be done by a weapon unlawfully carried. That it may be so done might not relieve the party from being guilty of aggravated assault, for the act may be as willful under one statute as under the other, but there is an essential element distinguishing one from the other; that is, that under one the weapon must be unlawfully carried, while under the other this is not essential or necessary. Another essential difference also between this offense and aggravated assault lies in the further fact that the punishment is different. The evidence does not establish that defendant carried a pistol in contemplation of article 475, P. C., if it was in the box in the wagon. See Hardy v. State, 37 Tex Cr. R. 511, 40 S. W. 299, and Thompson v. State, 48 Tex. Cr. R. 146, 86 S. W. 1033. The mere fact that appellant secured the pistol from the box to help his' brother,' under the circumstances under which it occurred, did not bring him within the inhibition of article 475, supra. Pyka v. State, 192 S. W. 1066. So it will be observed that under this statute assault to murder would not be included, while under some circumstances an aggravated assault might be. But under the statute under discussion an aggravated assault as defined in the statute would not be predicable. The essential difference, as before stated, lies in the peculiar definition; that is, that the weapon must be unlawfully carried as inhibited by article 475, supra.

Two bills of exception were reserved to the ruling of the court excluding testimony offered by the defense to the effect that in the evening prior to the difficulty, while all the parties were in town, appellant, being uneasy about the life of his brother from the actions of Wilburn, went to the sheriff, and also to another officer, and requested protection of his brother against Wilburn, stating to them he believed Wilburn was armed. The officers declined to take any action. He also wanted to prove other facts and incidents showing such uneasiness, which is not necessary to detail. This was excluded. The court qualifies the bill by stating that this shooting occurred after the parties left town and were some miles south of town. The evidence shows that the difficulty occurred about two miles south of town, where Wilburn overtook the Brinkley brothers in a wagon. We are of opinion this testimony ought to have been admitted. The statute authorizes the carrying of a weapon where a party’s life is in danger and he is in such condition he could not have the party arrested. They asked protection of these officers, and were refused such assistance. Defendants left town as soon as they could to avoid trouble, and went out a back street in order to avoid the very thing that later occurred. This testimony, we think, was admissible for more than one reason. Appellant sought to avoid- this trouble as did ,his brother. He was declined assistance by the officers, and this testimony would bear upon the question of whether or not he unlawfully carried the pistol,

The judgment will be reversed and the cause remanded.
      e=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    BRADSHAW v. STATE.
    (No. 4602.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.
    Dissenting Opinion Dec. 5, 1917.)
    1. Ceiminal Law t&wkey;369(8) — Evidence oe Other Acts oe Intercourse.
    In a prosecution for incest at a certain time and place, admissibility of evidence of intercourse at other times depends on the facts and evidence.
    2. Criminal Law <&wkey;507(7) — Incest <&wkey;15— Child as “Accomplice*’ — Corroboration.
    A stepdaughter 19 years of age, .who consents to intercourse, is an accomplice in a prosecution for incest, and her evidence must be corroborated.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.] »
    3. Criminal Law <&wkey;511(l) — Corroboration oe Accomplices.
    A prosecutrix, an accomplice in incest, cannot corroborate herself as to the act of intercourse by her own testimony that defendant ran away when she went before the 'grand jury.
    4. Incest <&wkey;14r — Accomplices—Corroboration — Sueeiciency.
    Evidence held insufficient to justify conviction.
    Prendergast, J., dissenting.
    Appeal from District Court, Collin County; O. T. Freeman, Judge.
    Dave Bradshaw was convicted of incest, and he appeals.
    Reversed and remanded.
    G. R. Smith and Owen Smith, both of McKinney, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for incest with a punishment assessed at 5 years’ confinement in the penitentiary.

It is charged that appellant had carnal knowledge of his stepdaughter, Ethel Mc-Comb, about November 1, 1914. Ethel Mc-Comb was about three years of age at the time her mother and appellant were married. Appellant and his wife lived together continuously up to the time of the trial of this case and thereafter so far as the record shows. There were several children born, among them twin daughters, who were, at the time of the alleged offense, about 14 years of age. Ethel McComb was a member of the family, and continued such until after appellant was indicted in April, 1916, after which time she went to Oklahoma and lived with the family of E. R. Conway, whose wife was her aunt. A child was born to her on July 12, 1915. Ethel McComb, the prosecuting witness, testified that the act of intercourse with appellant took place during October, 1914, about 3 o’clock in the afternoon, while she, appellant, and his twin daughters, above mentioned, were picking cotton in a 25-acre field; that the cotton was about 2 or 2½ feet high, the rows about 3 feet apart; that she and appellant were picking three rows together, and appellant’s daughters each picking one row; and that at the time of the occurrence the daughters were about 150 feet distant. The circumstances show that the act of intercourse, if it occurred, was with her consent, and that she was about 19 years of age.

Upon the trial the absence of appellant’s . daughters was stressed by appellant in the conduct of the cross-examination. He drew out that she disliked him; that he mistreated her in refusing to permit her to keep company with young men, particularly one whom she named; also in whipping her more than the others. 1-Ie introduced testimony to the effect that Ethel McComb named another as the father of her child. In rebuttal she testified, at the instance of the state, to other acts of intercourse with appellant occurring prior to October, 1914. This evidence was objected to, and its admission made the basis of complaint. The conflicting views of this court and its members, as to the legality of such evidence, are shown by the opinions in Clifton v. State, 46 Tex. Cr. R. 21, 79 S. W. 824, 108 Am. St. Rep. 983, Gillespie v. State, 49 Tex. Cr. R. 531, 93 S. W. 556, Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466, Pridemore v. State, 59 Tex. Cr. R. 564, 129 S. W. 1112, 29 L. R. A. (N. S.) 858, rejecting such evidence, and Burnett v. State, 32 Tex. Cr. R. 86, 22 S. W. 47, Williamson v. State, 72 Tex. Cr. R. 618, 163 S. W. 435, Smith v. State, 64 Tex. Cr. R. 454, 142 S. W. 1173, Cain v. State, 68 Tex. Cr. R. 507, 153 S. W. 147, holding it proper. The conflict is emphasized by dissenting opinions in several of the cases mentioned. The writer is of the opinion that such evidence is not to be admitted or rejected in every case, but that its receipt or rejection is to be governed by other facts and evidence, and that in this case it was not error to admit it as tending to solve the issue as to whether appellant had had intercourse with the witness, Ethel McComb, at the time she claimed he did; the truth of her evidence being a controverted fact as developed both by cross-examination by appellant and evidence introduced by him. Ethel McComb, having consented to the intercourse, was an accomplice. Pate v. State, 93 S. W. 556, Burford v. State, 68 Tex. Cr. R. 295, 151 S. W. 538, and other cases cited in Branch’s Ann. Stats, p. 588. Corroboration of her evidence was essential. Branch’s Ann. Stats, p. 589, § 1031; Barrett v. State, 55 Tex. Cr. R. 185,115 S. W. 1187; Wadkins v. State, 58 Tex. Cr. R. 110, 124 S. W. 959, 137 Am. St. Rep. 922, 21 Ann. Cas. 556, and other cases listed in Branch’s Ann. Stats, supra.

Appellant insists that the evidence fails to corroborate. The state apparently relies upon evidence of three facts to rebut this contention:

First. Flight or evasion of arrest: Ethel McComb resided in appellant’s home with his family for some 7 months after the birth of her child. In March, 1916, she went from his home at Anna some distance to the county seat and appeared before the grand jury. Appellant’s father took her to town, appellant riding part of the way with him, and when she returned about noon appellant was not at home. On the day she went to town to appear before the grand jury a deputy sheriff went to appellant’s home to arrest him, and did not find him. Witness says:

“He was gone from home and from the neighborhood as far as I could find out. I searched the whole country, and did not find him, and did not see him for several days afterward when he was in the sheriff’s office.”

N» indictment had then been found. There is no evidence that appellant knew of the issuance of the warrant for him; no evidence save that of the accomplice, Ethel McComb, that he knew that she was going before the grand jury; none at all as to her mission there. ■ The extent of the search, the inquiry made, the length of time consumed by the officer, is not disclosed.

Appellant is not shown to have been absent evading arrest, or absent at all, except that the officer was unable to find him. If the proof of his absence would bear any weight, it would be because of his knowledge that Ethel McComb was going before the grand jury. This fact proved by her would not be corroboration of her testimony. She could not corroborate herself by her own evidence. Skidmore v. State, 57 Tex. Cr. R. 497, 123 S. W. 1129, 26 L. R. A. (N. S.) 466; Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912; Harper v. State, 11 Tex. App. 1; Jernigan v. State, 10 Tex. App. 546; Thompson v. State, 78 S. W. 691; Wallace v. State, 48 Tex. Cr. R. 318, 87 S. W. 1041; Reese v. State, 44 Tex. Cr. R. 34, 68 S. W. 283.

Second. Admissions by appellant: After Ethel McComb went to live with her aunt, Mrs. Conway, during April, 1916, after the indictment was filed, appellant went to the Conway home and had a conversation with Mr. Conway, appellant stating that he wanted to see Ethel and talk with her, and had a letter for her which her mother sent her by him. Conway says he objected to appellant seeing her, and “appellant said he would admit that he had treated Ethel wrong; that she was a good girl and would pay. her way anywhere she went; * * * and he wanted us to take care of her, and I told him I was not able.” There was evidence that Ethel was. aggrieved at appellant, believing that he wronged her by whipping her, working her in the field, and by refusing to permit her to go with other boys, particularly Howard Chumley, and she claimed that he had had intercourse with her with her consent. In appellant’s statement to Conway- there is no specific admission of the truth of any of these statements of Ethel in which she claimed he had wronged her. There is in Conway’s testimony no accusation of wrong done her by appellant. While the law does not define the measure of proof of corroboration, it does require that there should be some fact or circumstance proved independent of her testimony which would connect the accused with the crime (Capshaw v. State, 73 Tex. Cr. R. 609, 166 S. W. 738; Wharton on Crim. Ev. vol. 1 [10th Ed.] p. 930); and in our judgment the circumstances relied upon neither alone nor in connection with others proved meet the legal requirement of corroboration.

Third. Appellant’s resemblance of the offspring: Appellant’s hair was black; Ethel McComb had dark hair; her baby had light hair, nearly white. On the question of parentage evidence, of resemblance has been used. Wharton on Crim. Ev. p. 788, note. Our attention has not been directed', however, to any instance in which circumstances so weak as those detailed have been held sufficient to show relationship, or to corroborate a witness who claimed it to exist. In our opinion there is not sufficient evidence of corroboration to justify the conviction of appellant. Ceasar v. State, 29 S. W. 785; Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965.

The judgment of the court below is therefore reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I have studied the evidence herein carefully. The other evidence corroborated Ethel McComb’s evidence fully and completely in compliance with the statute and decisions heretofore rendered in four distinct particulars:

First. It was shown a baby was born to her just the time of gestation from the time she swore appellant had intercourse with her.

(Second. He is the only man who is shown to have had the opportunity to have had intercourse with her to have been the father of her baby. Appellant attempted to show that a young boy, Howard Chumley, who lived a few miles distant from him, had the opportunity and was the father of said baby. Chumley testified and showed he not only never had intercourse with Ethel, but never had an opportunity, and Ethel also so swore.

Third. As soon as appellant learned Ethel was going to prosecute him, he fled the country, and was gone many months before he was found and arrested.

Fourth. After the prosecution had been pending for some time, and Ethel had left him and gone to live with Mr. Conway, her uncle, who lived in Oklahoma, appellant went there to see her. Her uncle swore he declined to let him see her, and said:

“He [appellant] says that he would admit that he had treated Ethel wrong, and that she was a good girl. * * * ”

This was a clear admission of the truth of the charge against him.

• There are other circumstances in the testimony tending also to corroborate Ethel. I think there is no doubt whatever of appellant’s guilt, and that Ethel was fully corroborated. This case should have been affirmed.
      <fe?Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    HAMMONDS v. STATE.
    (No. 4537.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.
    Dissenting Opinion Dec. 5, 1917.)
    1. Homicide <§=>300(13) — Justifiable Homicide— Self-Defense — Instruction.
    An instruction that, if defendant armed himself and pursued deceased with the intention of taking his life, he could not justify on the ground of self-defense, is insufficient, as proof of some act or word indicating that purpose, or intent to provoke the deceased, is necessary.
    2. Homicide <§=>54 — Justification — Self-Defense.
    If a deceased is pursued with a less purpose than to kill or inflict serious bodily injury, the law of imperfect self-defense is not barred, and tho culpability under such circumstances is less than murder.
    3. Homicide <§⅛=309(2) — Justification—Self-Defense— INSTRUCTIONS.
    Having charged on the doctrine of provoking a difficulty with the ulterior purpose’ of killing or inflicting serious bodily injury, the converse as to where the purpose was less than to kill or inflict serious bodily injury should be presented, where suggested by the testimony.
    4. Homicide <§=>300(8) — Justification—Self-Defense — INSTRUCTIONS.
    Where .there was evidence that defendant pursued deceased for a peaceable settlement of a difficulty by calling to him not to do anything rash, but that he wanted a peaceable settlement, the question of perfect self-defense is raised, and the proposition should have been given in the charge.
    5. Cbiminal Law <§=>366(6) — Evidence—Res Gestee.
    Where a shooting occurred 300 yards from witness, and he started in that direction, and met deceased running toward him badly shot, and witness took him to his house nearby and laid him on the bed, statements of the deceased are admissible- as res gestas.
    Prendergast, J., dissenting.
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Mack Hammonds was convicted of murder, and he appeals.
    Reversed and remanded.
    N. L. Dalby, Joe Hughes, and J. Q. Ma-haffey, all of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The former appeal is reported in 77 Tex. Cr. R. 116, 177 S. W. 493. It is deemed unnecessary to make a statement of the facts in the disposition of this appeal. While the evidence is not altogether as shown by the previous appeal, yet such evidence may be treated as being substantially the same.

The court charged the jury that, if they should find from the evidence that defendant and Joe Hokes armed themselves and pursued deceased with the intention of taking his life, or inflicting upon him serious bodily injury, he could not justify on the ground of self-defense. Exceptions were reserved to this charge; they are correct. It takes more than is stated by the court in the charge to forfeit the right of self-defense. Appellant and Hokes may have done as stated in the charge, and had the intent and purpose to kill, or in- j flict serious bodily injury, yet if, without some act done by them, or words spoken, or both such words and acts they provoked deceased into a difficulty, or give evidence by word or act of carrying out their purpose, self-defense would still remain. An accused party does not forfeit his right of self-defense by simply having an intent to kill or to do serious bodily injury. There must be some act done or word spoken indicating his purpose, and in addition he must execute that purpose, or provoke the other party to do something that he may execute it. It is not every act done by an accused which forfeits his right of self-defense. If the act done or word spoken is to provoke the difficulty with the ulterior view of killing, or inflicting serious bodily injury, and he does the act, or utters the provoking words, the killing might bo murder. If for a less purpose than to kill or inflict serious injury, the law of imperfect self-defense would arise, and the culpability under such circumstances would be of less magnitude than murder. It is therefore nec-essars', as a prerequisite to forfeiting the right of self-defense, that the accused must do or say something as to his purpose which would and does bring on the difficulty. The charge is erroneous from any viewpoint.

The court also charged the jury that, if they should believe that defendant sought the meeting with deceased for the purpose of slaying him, or inflicting upon him serious bodily injury, and, having found him, did some act or used some language, or did both, with intent to produce the occasion to bring on the difficulty, and that the same, under the circumstances, was or were reasonably calculated to provoke a difficulty, and on such account deceased attacked the defendant, or Joe Hokes, or both of them, and the defendant, or Joe Hokes, while acting together at that time as principals, as heretofore defined in the charge, shot and killed deceased in pursuance of their original design, then defendant cannot justify on the ground of self-defense, for such killing would be murder. Various exceptions were urged, and special charges requested and refused. These were timely presented. This charge falls short of the law, and did not submit the'converse of the proposition announced by the court, to wit: If appellant and Hokes followed deceased, not for the purpose of killing him, but inflicting upon him injury less than such as would cause murder, then the Question of imperfect self-defense arose, and the killing might be less than murder. It would present the question of manslaughter. Having charged on the doctrine of provoking a difficulty with the ulterior purpose of killing, or inflicting serious bodily injury, without the converse of the proposition that, if the purpose was less than to kill or inflict serious bodily injury, then imperfect self-defense would be in the case, an appropriate charge should have been given presenting that theory. The ’ question is suggested, by the testimony, and should have been covered by the charge.

The theory of appellant and Hokes was they followed deceased for a peaceable settlement, and they tried to prevent a difficulty by calling to him not to do anything wrong or rash; that they wanted a peaceable settlement. If the jury believed that, and the deceased then fired, and appellant returned the fire, the question of self-defense would, be raised from that standpoint; that is, the question of perfect self-defense. These propositions were in the case, and should have been given in the charge.

There is another question suggested for decision; that is the alleged error admitting statements of deceased on the theory they were res gestee. We deem it unnecessary to set out the statement; it is lengthy. After reviewing it, we are of opinion that the matter was sufficiently connected with the tragedy, and so close in time to the transaction, as to' bring it within the rule of res gestae. It was but a few moments after the shooting, and the witness testifying to the statement of deceased said when he heard the shooting he started in that direction. The shooting occurred about 300 yards from where he was located. (He met the deceased running toward him from the scene of the shooting with a pistol in his hand. He took him to his house near by, laid him on the bed, and took his pistol. Deceased was badly shot. Under these circumstances he made this statement. We are of opinion that the testimony is within the rules of res gestee and admissible.

Por the reasons set out with reference to the errors in the charge of the court, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

Prior to Sunday, April 5, 1914, which was the day appellant and Joe Hokes murdered Pearl Stroud, deceased, there had been more or less trouble between them, Hammonds and Hokes, and 'Stroud. A state of hostility existed between them, 'Hammonds and Hokes on one side, and Stroud on the other. On the evening of said date deceased, Stroud, went to his neighbor’s, Dump Hicks’, to borrow a plow to use the next day. It turned out that Hammonds and Hokes were at Hicks’ at the time. He called Hicks off away from Ham-monds and Hokes and other neighbors who were there at the time, and' made arrangements to borrow a plow from him. He then started to leave, and Hammonds and Hokes started toward him, hailing him and telling him to hold on a minute that they wanted to see him. Stroud did not halt, but started off from them in a gallop. Hammonds then hollered to to him, “Run you coward,” or “Run you cowardly son of a bitch.” Stroud continued to get away from them. Hammonds then said to Hokes that if he had a horse he would overtake Stroud. Hokes told him he had a horse and buggy near and he would go and get it, which he did. Hammonds then got in the buggy with him, each armed with a six-shooter, and they took out after Stroud. Stroud was riding a little young horse, and did everything he could to run away from Hammonds and Hokes, who pursued him. He ran a mile. His little! horse gave out. When Hammonds and Hokes got near enough to him, each went to shooting at Mm and killed him — murdered him. 'Stroud had done everything he could to save his life and keep Hammonds and 'Hokes from killing him. He had run a mile; had run Ms horse down. And even if before Hammonds and Hokes shot at him at all on this occasion he had the right, in his own self-defense, to save himself from being murdered by them, to shoot at one or both of them, and if he had killed one or both of them no grand jury would ever have indicted him, and if any grand jury ever had, no court would have sustained a conviction against him ; for everything he did in the way of shooting at them was unquestionably in his own self-defense.

The court’s charge in this case, taken as a whole substantially correctly submitted the issue of provoking a difficulty and Hammonds claimed self-defense. Really he had no self-defense.

The evidence in no way raises the issue of manslaughter, as was correctly held in the decision of this case on first appeal, 77 Tex. Cr. R. 116, 177 S. W. 493, by unanimous decision of this court. The court was correct in refusing to submit manslaughter on the supposed theory that Hammonds and Hokes ran him this mile with their six-shooters to see and talk to him and reconcile their supposed differences. What an absurdity! Run a man with six-shooters more than a mile when he was doing everything possible to save his life from being taken by them, and then pretend that they were running him down to have an amicable adjustment between them.

This ease should have been affirmed, and not reversed.

What I have said in this case applies even with greater force to the Hokes Case, 198 S. W. 945, decided the same day.
      <S=>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    HOKES v. STATE.
    (No. 4536.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1917.)
    Appeal from District Court, Dowie County; H. E. O’Neal, Judge.
    Joe Hokes was convicted of crime, and he appeals.
    Reversed and remanded.
    N. L. Dalby, Joe Hughes, and J. Q. Mahaffey, all of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This is a companion case to Mack Hammonds v. State, 198 S. W. 944, just decided. Both cases are practically the same, and for the reasons given in the opinion in the Hammonds Case, this judgment will be reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I refer to my dissenting opinion in the Hammonds’ Case for my dissent in this.