author: PRENDERGAST, J.

text:
    EDWARDS v. STATE.
    (No. 4318.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1917.
    Motion to Withdraw Rehearing Granted Jan. 31, 1917.)
    1. Criminal Daw <&wkey;596(l), 941(1) — Trial— Cumulative Evidence.
    In prosecution for murder, where an absent witness’ testimony would have been merely cumulative, motions for continuance and for a new trial on that ground were properly overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328, 2328, 2330; Dec. Dig. &wkey;596(l), 941(1).]
    2. Criminal Law <&wkey;1144(18) — Appeal and Error — Ruling Presumed Correct.
    Where the evidence heard by the trial court is not disclosed by the record, it will be presumed that the court’s action in refusing a new trial was sustained by the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dec. Dig. <&wkey;> 1144(18).]
    3. Criminal Law <&wkey;396(2) — Admissibility oe Evidence — Conversations.
    Where defendant on trial for murder proved part of a conversation between deceased and witness, it was proper for th« state to offer evidence of the balance of the conversation hy a third person who was present, under Code Civ. Proc. 1911, art. 811.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. <©=5396(2).]
    4. Criminal Law <&wkey;422(l) — Admissibility of Evidence — Showing Conspiracy.
    Where evidence of a witness present at a conversation between deceased and a third person tended to show a conspiracy between the third person and appellant to murder deceased, it was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 984-986, 988, 989; Dec. Dig. <&wkey; 422(1).]
    5. Criminal Law <&wkey;549 — Evidence Tending to Show Conspiracy — Murder.
    Evidence offered in trial for murder held to tend to show a conspiracy between appellant and his nephew to murder deceased.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1249, 1251; Dec. Dig. <&wkey;> 549.]
    6. Witnesses <&wkey;331% — Admissibility op Impeaching Evidence — Conversations.
    The testimony of a witness as to the balance of a conversation between deceased and appellant’s nephew, which had been offered by appellant upon trial for murder, was admissible by the state to impeach the nephew’s testimony.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. <&wkey;331%.]
    7. Criminal Law <&wkey;763, 764(1) — Trial— Comments by Court Upon Evidence.
    In a trial for murder, the court’s remark that he admitted certain evidence to enable the jury to pass upon credibility of a witness was proper, and not a comment on the weight of testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dec. Dig. &wkey;763, 764(1).]
    8. Criminal Law <&wkey;1169(5) — Error Cured by Instructions to Disregard Evidence.
    Where the court withdrew from consideration of the jury evidence which had been objected to, telling them not to consider it for any purpose, any error in admitting such evidence was cured.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;1169(5).]
    9. Criminal Law <&wkey;1169(5) — Evidence of Former Tbiai^Cured by Instructions.
    Where, upon a second trial of appellant for murder, the court sustained an objection to an impeaching question of whether a witness had signed an affidavit to get appellant a new trial, and instructed the jury to disregard all evidence relating to the former trial, and not to consider the result thereof, appellant suffered no prejudice.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 3141; Dee. Dig. <&wkey;>1169(5).]
    10. Homicide <&wkey;300(ll) — Instructions—Issues in Case — Justifiable Homicide.
    Where the court properly submitted issue of self-defense upon trial for murder, and no issue as to any attack by deceased upon appellant other than to kill him was shown by the evidence, a refusal to submit question of justifiable homicide upon such an issue as provided for under Pen. Code 1911, art. 1107, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 626; Dec. Dig. <®=>300(11).]
    11. Homicide <&wkey;309(l) — Instructions—Justifiable Homicide.
    Instructions given upon trial for murder held not to restrict the jury to consideration of circumstances arousing appellant’s passion at time of homicide, but included those occurring before, and properly presented the law.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 649; Dee. Dig. &wkey;>309(l).]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    W. J. Edwards was convicted of murder, and appeals.
    Affirmed.
    Martin Feagin and I. D. Fairchild, both of Lufkin, W. J. Townsend, Jr., of Jacksonville, Mantooth & Collins, of Lufkin, and Norman, Shook & Gibson, of Rusk, for appellant. Beeman Strong, of Nacogdoches, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder. This is the second appeal by him. The first is reported in 172 S. W. 227. A sufficient statement was made on the other appeal so as to render it unnecessary to make any now.

Appellant has a large number of bills of exceptions, some to the overruling of his several motions for a continuance, some to evidence admitted, others to evidence excluded, and several to refused charges. We have carefully considered all of them, and find it unnecessary to take them up separately. We will discuss such of them as are regarded ] material. I

The record shows, as did the record on the former appeal, that appellant on his application secured continuances before this trial occurred. How many is perhaps not definitely shown by this record. The homicide occurred on November 8, 1910;. appellant was soon thereafter indicted, so that the case has been pending for six years or more now. The venue had been changed from Angelina county, where the first trial occurred, to Oherokee county, where this trial occurred. Several witnesses for the state testified that deceased made no attempt to cut appellant with his knife at the time appellant knocked him down, and after he was down struck him at least two more licks with a large stick, which the testimony showed was a deadly weapon in the manner in which it was used. Appellant claimed that deceased did cut at him with his knife at the time he first struck him with the stick and claimed that he cut one prong of his suspenders and his shirt in front. The state’s witnesses testified, in substance, that appellant’s shirt and suspenders were not cut immediately after appellant killed deceased and when he walked away from him. Appellant himself, and three other witnesses for him, testified that his suspenders and shirt were cut by deceased, and that they saw his garments so cut immediately after appellant left deceased where he had felled him to the ground. Appellant’s ground for a continuance was the absence of one witness, Red, whom he claimed would testify to the same on this point that he himself and his other three witnesses testified. In addition to his application for a continuance, which was overruled, he sought a new trial on the ground of the absence of said witness. The state on this, and other grounds too, contested appellant’s motion for a new trial. The bills on the subject, and the judgment of the court, all show that the court heard evidence on this contest when he acted on the motion for a new trial, and after hearing it denied him a new trial. What that evidence was is in no way disclosed by this record.

The court’s action in overruling his motions for a continuance and denying him a new trial on that ground was correct on two propositions; (1) The absent witness’ testimony would have been merely cumulative, and this court has always held that, under such circumstances, the trial court’s action in overruling an application for a continuance presents no error. 1 Branch’s An. P. C. § 322, where a large number of eases are collated. (2) As the evidence heard by the trial judge on this ground of the motion for a new trial is in no way disclosed, this court must presume, and always does, that the action of the court was sustained by the testimony heard. Ethridge v. State, 74 Tex. Cr. R. 638, 169 S. W. 1152; Sorrell v. State, 186 S. W. 338, where a large number of other cases are cited.

Bob Edwards, appellant’s nephew, testified for him that on the same day appellant hilled deceased, he (the witness) was at deceased’s store and got into a conversation with deceased, wherein the deceased asked about the election which was then being held, and stated to him that he hoped it would not be carried on like the last two were; that the last two elections were stolen out, the last one especially; that he told deceased that appellant was the presiding officer at the last election referred to, and deceased reiterated that that election was “stole out”; that there were more votes cast for Fowler tTian lie got there; and that he stated to deceased that his uncle had lived there 30 years, and the deceased was the first man that,had ever accused him of anything dishonest. On this point, on cross-examination, the state asked him if he then didn’t say to deceased that appellant would settle with him about that. He denied making any such statement. The state claimed that Mr. Delaney was present and heard this. Eater the state introduced Delaney, who swore, in substance, that Bob Edwards did make that statement at the time to deceased. Appellant objected to the testimony of Delaney on many grounds. The point was discussed before the court at the time by the various attorney's on both sides. On.e of the state’s attorneys contended that the testimony was admissible as a circumstance, together with many others, to show that Bob Edwards was a principal to the killing of deceased a few hours later by appellant. The district attorney contended, in addition, that it was admissible for the purpose of impeaching the witness Bob Edwards’ testimony. In ruling on the matter at the time, the judge said he would admit the testimony “to enable the jury to pass on the credibility of the witness Bob Edwards.” In charging the jury, the judge gave this charge, requested by appellant: “You will not consider the testimony of the witness O. Delaney for any purpose.” Appellant not only objected to the testimony of said Delaney, as stated, but also objected to what the court said at the time he admitted it — that he did so “to enable the jury to pass on the credibility of the witness Bob Edwards” — claiming that that ruling of the court was a comment on the weight of the evidence.

In our opinion, the testimony of said Delaney was admissible on three grounds: (1) It was a part of the same conversation with deceased that Bob Edwards had, a part of which appellant proved, and the state, under the statute, was entitled to the balance of the conversation. Article 811, C. C. P. We are aware that Delaney and Bob Edwards did not fix the same hour at which the conversation occurred between Bob Edwards and deceased, but Edwards testified that that was the only time that day that he saw and had any conversation with deceased; that he did not see him again at all until just immediately before he was killed, which was some hours after the conversation. (2) Without reciting it fully, we think the state’s contention that Delaney’s testimony was admissible as one circumstance tending to show a conspiracy between Bob Edwards and appellant to kill deceased is correct. Both he and appellant testified that soon after said conversation with deceased, Bob Edwards took his uncle off to one side privately and told him about what had occurred and what deceased had said to him, and appellant himself in effect testified that it was because of said deceased’s statement about him that he sought him for an explanation at the time he killed him. The testimony further shows that deceased went from his store to the voting place where appellant and Bob Edwards were. While they denied seeing him at the time, all the testimony puts all the parties at such a place where they could, and probably did, see him, and that as deceased went into the polling place to vote, they together started down the road where they knew deceased would have to pass along in going back to his store from the voting place, and that each stopped on the side of the road and waited till deceased did come along, when appellant attacked and killed him. Appellant himself swore that when he first approached deceased and asked for an explanation, deceased denied making the statement, and he thereupon called for Bob Edwards. Bob Edwards testified he heard the call and started to appellant at the time, and that he got nearly to him before appellant finally quit beating deceased, and that they then turned and left, Bob Edwards following appellant. Another witness swore that at the time appellant was striking deceased, Bob Edwards called out to him: “Kill the son of a b-.” (3) That the testimony of Delaney was admissible for' the purpose of impeaching Bob Edwards. As to the court’s remark at the time he admitted the evidence that he did so to enable the jury to pass upon the credibility of Bob Edwards, this was not a comment on the weight of the testimony. The court by it expressed no opinion one way or another, but said he admitted it to enable the jury to pass on the question. If the evidence had remained before the jury, just such a charge would have been proper. This court uniformly approves'such charges when such testimony is admitted for impeachment purposes only.

But if we should be mistaken in any or all of these grounds on which we think the testimony was admissible, the whole matter was cured by the charge of the court withdrawing it all from the consideration of the jury and telling the jury specifically, at appellant’s instance, not to consider the testimony of Delaney for any purpose. Miller v. State, 185 S. W. 38, and cases there cited; Martoni v. State, 74 Tex. Cr. R. 93, 167 S. W. 349, and cases there cited.

Each side in the examination and cross-examination of many of the witnesses repeatedly asked them whether or not they had testified on the former trial of this case, and if on that trial they did not testify so and so. All this was proper, and no objection was made to it at the time by either side. In fact, from the various witnesses and their examination by both sides, the jury were unquestionably made aware of the fact that a previous trial of appellant in this case had been had. Among other witnesses, appellant introduced 0. Burns, who testified to what was claimed, and may have amounted to, a threat by deceased against appellant, and be testified on no other subject. The state then, on cross-examination, took him up and showed by him that that was the first time he had ever testified in the case, that he had not testified on the former trial, and then undertook to show by him that he had taken an active part in appellant’s behalf immediately after the other trial. The witness, in substance, claimed that it was some time after the previous trial before he had ever disclosed to any one — appellant or any one else —what he had testified on this trial. The state tried to bring him down to immediately or very soon, after the other trial when he became active, and then disclosed his testimony to appellant, and along the same line when the witness was trying to avoid fixing the date, finally, in order to fix the date, asked him in substance if he didn’t sign an affidavit in order to get appellant a new trial. The appellant was objecting all the time to all this examination, and when the state asked this last question, he objected and protested. The court immediately and promptly sustained his objection to the last question— if he didn’t make the affidavit in order to get defendant a new trial — and immediately instructed the jury not to consider the question for any purpose; and no other question about any motion for new trial was asked. The court, in qualifying the bill, states that the homicide occurred in 1910, and that this witness had lived in the same neighborhood with appellant all the time since then, and the court was of the opinion that the cross-examination along the lines indicated was not improper but legitimate cross-examination of the witness, and he states specifically-, “That it was not the purpose or intention of state’s counsel to get anything . before the jury that was not legitimate.” We think under the many decisions of this court this is no ground for reversal. Witty v. State, 75 Tex. Cr. R. 453, 171 S. W. 229; Coffman v. State, 73 Tex. Cr. R. 309, 165 S. W. 939; Smith v. State, 52 Tex. Cr. R. 344, 106 S. W. 1161, 15 Ann. Cas. 357; Moore v. State, 52 Tex. Cr. R. 341, 107 S. W. 540; Benson v. State, 56 Tex. Cr. R. 52, 118 S. W. 1049, and other cases cited in these cases. In the Witty Case, supra, the state, for the purpose of impeaching another witness, who had testified on a former trial of that case, introduced the court stenographer and had him to identify the said witness’ testimony given on the previous trial. He was then asked by the state’s attorney if the copy of the testimony he had was the same that was filed in the Court of Criminal Appeals, and the witness answered, “Yes.” Appellant objected to the question and answer because it was an improper reference to the fact that defendant had on a previous trial been convicted. The court in that case, as in this, instructed the jury then and there not to consider said question and answer for any purpose, and the court in addition in that case, in his general charge to the jury, told them that it had developed during the trial that appellant had theretofore been tried in that case, and instructed them that the result of that trial did not concern them and not to consider it, etc., in making up their verdict; that their province was to try the case according to the evidence which had been submitted to them under the rulings of the court and the law applicable thereto as given in charge by the court at the time. Likewise, in this case, the court charged the jury;

“There has been some evidence introduced before you as to this case being tried in the district court of Angelina county, Tox., some time heretofore. You are charged that you cannot take into consideration for any purpose as to any former trial or the result of such trial, noi will you discuss or consider the same, but you will try this case on the evidence as introduced before you, and the law as given you in charge, and render your verdict accordingly.”

The court, in his charge, fully and properly submitted appellant’s claimed self-defense in every way that it was raised by the testimony. The testimony did not raise any issue as to any attack, real or apparent, by deceased on appellant other than to kill him or to do him serious bodily injury. It did not raise any issue as to any other unlawful and violent attack. Hence appellant’s contention that the court ought to have submitted that issue under article 1107, P. C., cannot be sustained.

The record does not sustain appellant in his contention that the court’s charge on manslaughter restricted the jury to the consideration of what occurred at the time of the homicide which might have aroused appellant’s passion, and did not permit them to consider what had occurred before. The court, after defining manslaughter in all of its terms as prescribed by the statute, in addition charged the jury as follows:

“In passing upon the question of the emotions of the mind such as anger, rage, sudden resentment or terror, you are charged that you may look to all of the facts and circumstances in evidence happening before the homicide and at the time of the homicide, which would commonly produce a degree of anger, rage, sudden resentment, or terror in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection, and if you find that the mind of the defendant was thereby arouse.d, to a degree of anger, rage, sudden resentment, or terror sufficient to render it incapable of cool reflection, you will, if you so find beyond a reasonable doubt, convict the defendant of manslaughter.”

This covered the very ground that appellant complains the charge did not cover.

The judgment is affirmed.
      <&wkey;Eor other cases see same topic and KEY-NUMBER in all KeyrNumbered Digests and Indexes

      i§3»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    WATSON v. STATE.
    (No. 4330.)
    (Court of Criminal Appeals of Texas.
    Jan. 10, 1917.
    Rehearing Denied Jan. 31, 1917.)
    1. Criminal Haw &wkey;>597(l) — Continuance-Absence of Witness — Discretion.
    Under Code Or. Proc. 1911, art. 608, providing that an application by an accused for a continuance “shall not be granted as a matter of right,” and that the truth, merit, and sufficiency thereof shall be addressed to the sound discretion of the court, and that when a continuance is denied a new trial shall be granted if the testimony of the absent witness was material and “probably true,” an application for a continuance is properly overruled, where it appears that the absent testimony is not “probably true” or would not change the result.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. &wkey; 597(1).]
    2. Criminal Law <&wkey;826 — Instructions— After Submission.
    Where accused consented to the reading to jury of the testimony of certain witnesses, after jury had been out several hours, a refusal to grant his request for several charges in respect to such evidence after the jury had returned to jury room held not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. <®=»826J
    Appeal from District Court, Grayson County; M. H. Garnett, Judge.
    Arch Watson was convicted of selling liquor in violation of law, and he appeals.
    Affirmed.
    Bookout & Jones, of Sherman, for appellant. C. C. McDonald, Asst. At(y. Gen., for the state.
   PRENDERGAST, J.

Appellant was convicted for pursuing the business of selling intoxicating liquor in Grayson county after the law prohibiting the sale thereof had been put in force in that county, and his punishment assessed at the lowest prescribed by law.

The indictment was in the approved form charging said offense and alleged a distinct sale by him to Floyd Abshire on November 24, 1915, and another to Elbert Abshire on January 2, 1916, and that on or about said date he made different and other sales to other persons, unknown to the grand jury, and during the months of November and December, 1915, and January, 1916, he made at least more than two sales of such liquor.

Deputy Sheriff Oscar Poff testified: That he knew where appellant lived November and December, 1915, and January, 1916. That he was at his place five or six times during those months. That he found 12 quarts of whisky there. Most of the time he had it in a trunk in the kitchen. There was some beer in the ice box. The whisky was Hill & Hill whisky. That he had seen a good many people going in and out of appellant’s place, both black and white, men and women, except that he saw no white women. That he took the whisky to the sheriff’s office.

Deputy Sheriff Boyd Craig testified: That he knew where appellant lived in Denison during said months, and that he investigated his place of business during those months some seven or eight times and found intoxicating liquor in the ice box every time he was there. That 10 or 11 quart bottles was the most he found there. It was Hill & Hill whisky. And that he found whisky every time he was down there. That he saw people stop in at appellant’s house, and that he did not remember of ever seeing Addie Watson, appellant’s sister, at his house.

Constable D. Burris testified: That he searched appellant’s residence five or six times during said months and found whisky in the ice box most every time he was there. It was Hill & Hill whisky. That he saw several people visiting appellant’s place. They would go in and stay but a few minutes and come out. He saw both whites and blacks visit the place. That he knew Addie Watson, appellant’s sister, and cannot say whether he ever saw her at appellant’s house during said months.

Elbert Abshire testified, in substance, to three separate and distinct sales of whisky by appellant to him during said months, a pint at one time, a half pint at another, and a quart the other, stating how much cash he paid him each time for the whisky. In telling how and where he would see appellant at each time, his testimony was to the effect that he would call him out of the back of his house to an alley and tell him how much whisky he wanted and give him the money therefor; that the appellant usually went into his house, was gone some short time, and would bring and deliver the whis-ky to him; that sometimes when appellant would tell him he did not have the whisky, he would ask him to see if he could not get it from Lee Scott. His testimony indicates that he got liquor from appellant one way or another during said months a greater number of times than three; that all the whisky he got from appellant was Hill & Hill whisky-.

Floyd Abshire testified: That during said months he would go to appellant’s house, call him out, and ask him if he could get some whisky, and appellant would say he would try. That he would give him the money for whatever quantity he wanted, and appellant would be gone five or ten minutes. He would go back in his house, through the back door, out of which he had called him, and sometimes when he would come back he would come around the house. He would then bring and deliver the whisky to him where he had remained. The substance of his testimony was to show that during said time he bought whisky from appellant three or four distinct times.

Lucy Thomas testified that in December, 1915, she bought a half pint of whisky from appellant and paid him 50 cents for it.

Appellant did not testify at all. He introduced no testimony and no witness, except one, who testified only that Lucy Thomas’ reputation for truth and veracity was bad.

Appellant was indicted the latter part of January, 1916, and tried in August following. He made an application for a continuance on account of the absence of his sister, Addie Watson. It does not state it is his first. It must be his second, as it has allegations therein not required in his first but which are required in a second or subsequent application. She was sick at the time of his trial and could not attend. She had been subpoenaed. In his application, he alleges that she would testify that:

“On the dates alleged by the indictment and for several days prior and subsequent thereto, she was an inmate of his home and there during all this time, and that appellant did not make the said sale or sales as alleged in the indictment. That during this time she saw no intoxicating liquors in his home, and to the best of her knowledge and belief there was none in his home during said time, and that because of the size, location, and condition of his home, he could not have made a sale as alleged in the indictment without her knowledge of the same,” and that “he knows from no other source from which he can secure the evidence to the same •facts and to the same extent that the same can be secured by this witness.”

He also claimed tbe court erred in refusing bim a new trial because of tbe overruling of bis application for a continuance. To bis motion be attached tbe affidavit of bis said sister — sworn to by ber as “true to tbe best of ber knowledge” — more elaborately but substantially to tbe same effect as bis application would show sbe would testify. Whether that affidavit was introduced in evidence before tbe trial judge at tbe time be heard and overruled the motion for a new trial (Page v. State, 189 S. W. 951), and what other testimony, if any, was introduced, is not disclosed by the record.

The statute (article 608, C. C. P.) expressly enacts that an application for a continuance by an accused “shall not be granted as a matter of right”; that tbe truth of tbe first, or any subsequent, application, as well as tbe merit of the ground set forth therein and its sufficiency, “shall be addressed to tbe sound discretion of tbe court called to pass upon tbe same.” It further provides that, “should an application for continuance be overruled, and tbe” accused “convicted, if it appear * * * that” tbe testimony of tbe absent witness “was of a material character, and that tbe facts set forth in said application were probably true,” a new trial should be granted. The decisions of this state since tbe enactment of said statute have held in accordance therewith.

Judge White, in his Ann. C. C. P., in section 643, subdiv. 2, lays down this correct rule:

“An application for continuance will be held properly overruled when, in connection with the evidence adduced on the trial, it is apparent that the proposed absent testimony would not be probably true. Carver v. State, 36 Tex. Cr. R. 552 [38 S. W. 183]; Reyons v. State, 33 Tex. Cr. R. 143 [25 S. W. 786, 47 Am. St. Rep. 25]; McKinney v. State, 31 Tex. Cr. R. 583 [21 S. W. 683]; Brotherton v. State, 30 Tex. App. 369 [17 S. W. 932]; Withers v. State, 30 Tex. App. 383 [17 S. W. 936]; Leeper and Powell v. State, 29 Tex. App. 63 [14 S. W. 398]; Wilks v. State, 27 Tex. App. 381 [11 S. W. 415]; Testard v. State, 26 Tex. App. 260 [9 S. W. 888]; Peterson v. State, 25 Tex. App. 70 [7 S. W. 530]; Melton v. State, 24 Tex. App. 47 [5 S. W. 652]; Parker v. State, 24 Tex. App. 61 [5 S. W. 653]; Collins & Lindly v. State, 24 Tex. App. 141 [5 S. W. 848]; Henning v. State, 24 Tex. App. 315 [6 S. W. 137]; Harvey v. State, 21 Tex. App. 178 [17 S. W. 158]; Doss v. State, 21 Tex. App. 505 [2 S. W. 814, 57 Am. Rep. 618]; Rice v. State, 22 Tex. App. 654 [3 S. W. 791]; Murray v. State, 21 Tex. App. 466 [1 S. W. 522]; Cunningham v. State, 20 Tex. App. 162; Bond v. State, 20 Tex. App. 421; Mendiola v. State, 18 Tex. App. 462; Chandler v. State, 15 Tex. App. 587; Henry v. State, 38 Tex. Cr. R. 306 [42 S. W. 559].”

In section 647, Judge White again lays down this correct rule:

“The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. Koller. v. State, 36 Tex. Cr. R. 496 [38 S. W. 44]; Lindsey v. State, 35 Tex. Cr. R. 164 [32 S. W. 768]; Moseley v. State, 35 Tex. Cr. R. 210 [32 S. W. 1042]; Tate v. State, 35 Tex. Cr. R. 231 [33 S. W. 121]; McGrath v. State, 35 Tex. Cr. R. 413 [34 S. W. 127, 941]; Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Waul v. State, 35 Tex. Cr. R. 228 [26 S. W. 199]; King v. State, 34 Tex. Cr. R. 228 [29 S. W. 1086]; Cline v. State, 34 Tex. Cr. R. 415 [31 S. W. 175]; Wyley v. State, 34 Tex. Cr. R. 514 [31 S. W. 393]; Neel v. State, 33 Tex. Cr. R. 408 [26 S. W. 7261; Russell v. State, 33 Tex. Cr. R. 424 [26 S. W. 990]; Shaw v. State, 32 Tex. Cr. R. 155 [22 S. W. 588]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Brookin v. State, 26 Tex. App. 121 [9 S. W. 735]; Browning v. State, 26 Tex. App. 432 [9 S. W. 770]; Boyett v. State, 26 Tex. App. 689 [9 S. W. 275]; Brooks v. State, 24 Tex. App. 274 [5 S. W. 852]; Jackson v. State, 23 Tex. App. 183 [5 S. W. 371]; Hennessy v. State, 23 Tex. App. 340 [5 S. W. 215]; Covey v. State, 23 Tex. App. 388 [5 S. W. 283]; Rice v. State, 22 Tex. App. 654 [3 S. W. 791]; Miller v. State, 18 Tex. App. 232; Mathews v. State, 17 Tex. App. 472; Beatey v. State, 16 Tex. App. 421; Wooldridge v. State, 13 Tex. App. 443 [44 Am. Rep. 708]; Word v. State, 12 Tex. App. 174; Clampitt v. State, 9 Tex. App. 27; Dowdy v. State, 9 Tex. App. 292.”

And in the next subdivision he lays down this correct rule;

“The court on, appeal will not reverse a judgment on account of ihe refusal of a postponement or continuance unless in connection with the other evidence adduced on the trial they are impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex. Cr. R. 330 [30 S. W. 788]; Gallagher v. State, 34 Tex. Cr. R. 306 [30 S. W. 558]; Easterwood v. State, 34 Tex. Cr. R. 400 [31 S. W. 294]; Sinclair v. State, 34 Tex. Cr. R. 453 [30 S. W. 1070]; Bluman v. State, 33 Tex. Cr. R. 43 [21 S. W. 1027, 26 S. W. 75]; Goldsmith v. State, 32 Tex. Cr. R. 112 [22 S. W. 405]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Hammond v. State, 28 Tex. App. 413 [13 S. W. 605]; Frizzell v. State, 30 Tex. App. 42 [16 S. W. 751]; Pruitt v. State, 30 Tex. App. 156 [16 S. W. 773]; Ellis v. State, 30 Tex. App. 601 [18 S. W. 139]; Browning v. State, 26 Tex. App. 432 [9 S. W. 770]; Boyett v. State, 26 Tex. App. 689 [9 S. W. 275]; Covey v. State, 23 Tex. App. 388 [5 S. W. 283]; Self v. State, 28 Tex. App. 398 [13 S. W. 602]; Phelps v. State, 15 Tex. App. 45.”

These rules have repeatedly and in recent decisions been quoted and approved by this court. Furnace v. State, 182 S. W. 457; Stacy v. State, 177 S. W. 114.

A consideration of the testimony of appellant’s sister in his application makes it apparent that her proposed testimony was not probably true. In fact, the evidence adduced at the trial was clearly sufficient to make it appear to the trial judge, and to this court, that her testimony was not probably true, and that, even if the jury had had her testimony, a more favorable verdict to the defendant would not have resulted. She is not shown by the application and her affidavit to have been personally present at the several times and places that the several witnesses testified postively to buying whisky from appellant, nor that she was present when the said several officers searched appellant’s house and premises and found in his ice box and trunk the quantities of whis-ky they swore they found therein at the many times they were there and searched his house for that purpose, nor does she deny the truth of their testimony. So that, under the statute and decisions, we think no reversible error was committed by the trial court in overruling either his motion for a continuance or for a new trial.

After the jury had been considering the case for several hours, it returned into open court and through its foreman in writing stated to the court that;

“They desired to hear that part of the testimony read to the jury showing that a sale of intoxicating liquor was made by appellant to either of said Abshires after Lee Scott was sent to the penitentiary, or during the month of January, 1916.”

By the agreement of the defendant the court had the stenographer to read to the jury certain portions of the evidence of said witnesses given at the trial. The appellant requested the court to give the jury these charges:

“(1) There is no evidence in this case that Lee Scott was sent to the penitentiary, and you will not consider that he was so sent.
“(2) There.is no evidence in this case as to the time Lee Scott was sent to the penitentiary, and you will not consider that he was so sent.
“(3) There is no evidence in this case as to the time Lee Scott was sent to the penitentiary, and therefore no evidence of a sale after he was sent to the penitentiary.”

The court refused No. 1, stating that it was asked after the jury had been out considering the case a night and until afternoon the next day, and he refused it because:

“(1) It was not proper for me to charge upon the matter indicated; and (2) it was requested too late; (3) because the .question of the jury was in the alternative, asking for testimony as to a time (after Lee Scott was sent to the penitentiary) or (during the month of January).”

The court stated that the last two were .presented to him in the afternoon of the second day after the case had been submitted to the jury and the jury had gone into court and requested to have certain evidence of the two witnesses, Abshires, reproduced, and after the stenographer by agreement of both parties had read from the testimony of said witnesses to the jury, and after the jury had again returned to their room; and he refused each of them, because:

“(1) It is on the weight of the evidence and is improper; (2) it was not requested in due time; (3) because the question of the jury was in the alternative, asking fon testimony as to a time (after Lee Scott was sent to the penitentiary) or (during the month of January).”

In our opinion, the action of the court, under the circumstances as stated by him, was correct, and neither of said charges under the circu'mstances should have been given.

The judgment is affirmed.

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author: DAVIDSON, J.

text:
    HARRISON v. STATE.
    (No. 4253.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1916.
    State’s Rehearing Denied Feb. 7, 1917.)
    1. Homicide <&wkey;183 — Evidence—Admissibility.
    Where in murder trial accused claimed she shot deceased because he had previously raped her by force, evidence for the state that she had gone quite a number of times to deceased’s room after the alleged rape was competent to contradict her claim of the use of force in the rape, although it did not affect the fact of rape, as she was under 15 years of age at the time of the alleged rape.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 387; Dec. Dig. <&wkey;183.]
    2. Homicide &wkey;>183 — Character oe Accused.
    In such trial, evidence by the state of lewd conduct by accused with others than deceased, and of an abortion, etc., before the killing, but long after her alleged rape by deceased, was inadmissible, where accused had not placed her character for chastity or virtue in issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 387; Dec. Dig. &wkey;183.]

      3. Witnesses &wkey;>237(l), 240(4) — Examination — Questions Assuming Facts — Leading Questions.
    Questions by the state to accused’s sister, “Now you don’t know, of course, whether she was crying about her pregnant condition by Charley Harrison or the fact an abortion had been performed at his request, or something else, do you?” and to accused’s mother, “Did you know your daughter went to Dallas during the summer of 1915, with Charley Harrison to have an abortion performed?” besides being incompetent, were objectionable as clearly leading and assuming the fact to be that accused did these things.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 829, 839; Dec. Dig. &wkey;237(l), 240(4).]
    4. Juey- <&wkey;45 — Disqualification of Juro» —Conviction of Crime.
    One convicted in the federal court for sending obscene matter through the mail is not qualified to serve as juror in murder trial.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 249, 251; Dec. Dig. &wkey;>45.]
    Appeal from District Court, Tarrant County ; Ren M. Terrell, Judge.
    Katherine Harrison was convicted of murder, and appeals.
    Reversed and remanded.
    McLean, Scott & McLean, of Ft. Worth, and W. B. Wynne, of Will’s Point, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

From a conviction of murder with five years’ penalty attached appellant brings this appeal.

The facts may be briefly summed up as follows: Deceased, W. L. Warren, had sexual intercourse with appellant about the time and a little before she was 14 years of age in his room at his hotel or lodging house. She went to the room after her parasol which he had carried to that room. This occurred in the fall of 1914. About the 22d of December, 1915, at or near Benbrook, seven, eight, or ten miles west of Ft. Worth, she shot and killed Warren, assigning as a reason his previous rape committed upon her. She made a confession in regulation style. The state introduced a portion of this, the defendant introduced the remainder, so the whole statement finally got before the jury. For brevity the confession will be placed all together. After setting out the formal parts it reads:

“On the night of the 22d of December, 1915. Charley Harrison and I were driving. We stopped between Tenth and Eleventh streets on Main. Charley was across the street getting a shine, and I was sitting in the car, when Mr. AVarren came along, and I thought that it would be a good time to take him out and kill Mm, so I asked him to get in and take a ride, and as soon as Charley came back I introduced them, and we went out the Arlington Heights road past Benbrook, and after we got to the place where he was found, I pretended that something was the matter with the tire, and we all got out of the car; before getting out I got the pistol out of the car; the gun belonged to Charley, and I knew that he kept it in the car. I drove the car, and Charley sat in the front seat with me, and Warren was in the rear seat. After Warren had looked at all the tiros, he came around in front of the car, and I turned on him and began to shoot. I think the first shot struck him in the arm; he then threw up his arm and stumbled over toward the tree and fell in a position somewhat like he was on his knees, and I followed him up and continued to shoot until the gun was empty. I think I shot eight times. The gun was a S. & W. automatic 35. Then Charley and myself got into the car and came back to town, with Charley driving, and he drove very fast. We came back the same way until we almost reached town. Then we went through North Ft. Worth.”

The above part of the confession was introduced by the state. The remainder of it introduced by defendant reads as follows:

“Some time about the 1st of November, 1914, I was introduced to Mr. Warren by a friend of mine. A few days after that I saw him down town, and he walked with me for a time and carried my parasol. When I left that evening I neglected to take my parasol, and he carried it home with him, and when I went to his hotel to get the parasol he locked the door, and by force and threats forced me to have sexual intercourse with him. His hotel at that time was the Southern Hotel at Tenth and Main streets. I did not speak to him any more, except one time, until the night of the murder. I had thought many times that I would be justified in killing this man, and had told Charley about it, but he did not take it seriously as he thought I would not have the nerve to do that. Charley and I were engaged to be married at this time. I had thought about the wrong this man W. L. Warren had done so much that I grew to hate him and wanted to see him die, but I had never formed any plan to kill him until I saw him passing that night, and all at once the idea came to me that I could do it that way and make it all right.”

This is her entire confession as embodied in the record. The state, to get away from the rape by force confession, introduced testimony to show that appellant had gone quite a number of times to Warren’s room after this alleged rape. The purpose of this was evidently to contradict her as to the rape by force, and to show that the rape was with her consent, she being under 15 years of age. This was a contradiction, and legitimate for that purpose, hut it did not change the proposition of rape. It would be rape whether by force or consent, inasmuch as, the girl was under 15 years of age. This is one of the means the state had of contradicting the girl and impairing her statement or version of the transaction. There seems to he from the record no reason or motive for the killing, except that assigned by the girl, to wit, the way deceased had treated her. The defendant’s testimony contradicts the state’s theory of Intercourse by consent, and sustains her view of the matter that she had not frequented his place or room. It is also shown, with little or no contradiction, that deceased was in the habit of debauching girls along about 14 or 15 years of age, and acquired a reputation, not only at Mineral Wells, where he formerly lived, but also at Ft. Worth, for this character of dealing with young girls. A number of girls visited his room, or were carried there by him and debauched. Charley Harrison two or three days after the killing married appellant. His relations with her began after the first transaction between the girl and deceased.

The state introduced testimony, in substance, that the girl was guilty of lewd and lascivious conduct on several occasions subsequent to the transaction at the hotel with the deceased. The witnesses gave full and lengthy details of those matters. The state also introduced her statements, among others, that she had had intercourse with Charley Harrison, and had gone to Dallas with him and there had an abortion produced on her, and that he had lived with her in adultery in his father’s house during his father’s absence from the state on a summer tour. These matters occurred before the killing, but long after the rape by deceased. A number of objections were urged to all this testimony. Upon what theory the state introduced this evidence is not manifest from the record, nor from the statement of facts or the bills of exception. The act of intercourse between herself and deceased, stated in her confession, and relied upon by the state, occurred long prior to those matters. She had not placed her character in issue for chastity or virtue, and the state could not. It was not introducible as touching her character for chastity and virtue, because this had not been made an issue by her. The different bills and the facts set out in them are not repeated, it being deemed unnecessary. Appellant was being tried for homicide; not for lascivious conduct, nor for being a lewd girl, a fallen and degraded woman, or an abortionist, nor for vagrancy. It is not contended that deceased was connected with those different transactions, nor with the girl’s act in having an abortion performed, if it was performed. The abortion was not shown except by her statement to one or more of the witnesses. All these matters and kindred questions not specifically mentioned occurred after deceased had debauched and ruined the girl.

There are two bills of exception to questions and answers of the sister and mother of appellant. The sister was asked:

“Now you don’t know, of course, whether she was crying about her pregnant condition by Charley Harrison or the fact an abortion had been performed at his request, or something else, do you? A. Ño; I don’t know.”

Mrs. Tackett, the mother, was asked:

“Did you know your daughter went to Dallas during the summer of 1915, with Charley Harrison to have an abortion performed? A. I did not.”

These questions will not be asked upon another trial. The testimony was illegitimate to begin with, and in the next place if it was legitimate to prove the fact that she went to Dallas to have an abortion performed, or she was crying about her relations with Charley Harrison, the questions were not proper; they were clearly leading, assumed the fact to be that she did those things, and followed by an inquiry as to whether these two witnesses were aware of those occurrences. The questions assumed the truth of the matters. Upon another trial if these phases become material or legitimate, the questions will be properly asked. Whether these witnesses knew or did not know of the abortion is not material; nor was it permissible to prove an abortion if it occurred. It would make no difference, so far as the killing of deceased is concerned, whether she or Charley Harrison, or both, had an abortion committed on her.

Calloway, who had been convicted in the federal court for sending obscene matter through the mail, will not be a juror in any further trial. It is useless to discuss that matter.

The writer believes another issue is well taken, but the matter has bpen decided adversely to his views in the recent case of Coy v. State, 180 S. W. 264. In that case the jurors were asked practically the same question as here, that if they had the belief in their minds that defendant was guilty, yet if they believed that the state failed to prove his guilt over the presumption of innocence and reasonable doubt, if they would give him the benefit of the reasonable doubt. The writer believes that question is legitimate, and was not out of place in testing the qualification of the jurors. There are many cases that arise where a juror would or may believe that an accused party is guilty, but the state had failed to make its case by legitimate evidence to the exclusion of the presumption of innocence and reasonable doubt, but the majority decided it the other way in the Coy Case. Under that opinion this would not be error. The writer disagreed with that opinion and dissented.

The judgment will therefore be reversed, and the cause remanded.
      Sz^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    NORTH TEXAS TRANSFER & WAREHOUSE CO. v. STATE.
    (No. 2796.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)

    Carriers &wkey;>8 — Occupation Taxation — Express Business by “Railroad.”
    Acts 30th Leg. (1st Ex. Sess.) c. 18, § 1, requiring payment of a percentage of gross earnings as an occupation tax by any one doing an express business by “railroad” or water, does not apply to express business done on interurban electrics, nothing indicating “railroad” is used in other than its ordinary meaning.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 6; Dee. Dig. <&wkey;>8.
    For other definitions, see Words and Phrases, First and Second Series, Railroad.]
    Error to Court of Civil Appeals, Third Supreme Judicial District.
    Action by the State against the North Texas Transfer & Warehouse Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (169 S. W. 1045), and defendant brings error.
    Reversed and rendered.
    Crane & Crane, of Dallas, for plaintiff in error. B. F. Looney, Atty. Gen., and Luther Nieliels, Asst. Atty. Gen., for tbie State.
   YANTIS, J.

This suit was instituted by the state of Texas, through its Attorney General, in the district court of Travis county, Tex., against the North Texas Transfer & Warehouse Company, alleging that it is engaged in doing an express business by railroad, and has been so engaged since July 16, 1907, and that it is indebted to the state of Texas, as an occupation tax, in the sum of 2½ per cent, of its gross receipts for the years next preceding March 1, 1908, 1909, 1910, 1911, 1912, and 1913, together with 10 per cent, penalties thereon.

The plaintiff in error, by its answer, denied that it had ever been doing an express business on a railroad in Texas. It admitted that it had been doing an express business on interurban electric railways; that the interurban railways upon which it has done business from time to time are the ones connecting Dallas, Tex., and Ft. Worth, Tex., Galveston, Tex., and Houston, Tex., Dallas, Tex., and Sherman and Denison, Tex., and later the one connecting Dallas, Tex., and Cleburne, Tex., by way of Ft. Worth, Tex., and that on these lines it did an express business, but did no express business on any steam railway. It denied that it was obligated to pay any occupation tax, and denied that it was its duty to make any report to the state.

The plaintiff in error admitted that it had collected the amounts of gross receipts on its express business transacted on interurban electric railways as set out in plaintiff’s petition.

The trial was had before the district court without a jury, and a judgment was rendered in favor of the state for the sum of $8,249.79, with 10 per cent, added thereto, or $824.97, as penalties, making a total of $9,074.76. The plaintiff in error appealed from this judgment to the Third Court of Civil Appeals, in which court the judgment was affirmed. The case is brought here on the petition of the North Texas Transfer & Warehouse Company.

The question for our determination is whether the plaintiff in error was subject to the payment of the occupation tax provided for by sections 1, 18, and 19 of chapter 18, Acts of 1907.

Section 1 thereof provides that “each and every individual, company, corporation, or association doing an express business by railroad or water in this state” shall annually make a report to the comptroller of public accounts, under oath, showing the amount of gross receipts for charges and freights paid to or collected by such individual, company, corporation, or association, on account of the moneys, goods, and merchandise or other freight carried. It further provides that any such individual, company, corporation, or association doing an express business by railroad or water shall pay to the treasurer of the state of Texas an occupation tax annually equal to 2½ per cent, of its gross receipts, as shown by its said report.

Section 19 provides that a failure to pay the tax provided for in section 1 shall render the individual, company, corporation, or association so remiss liable to pay to the state a penalty of 10 per cent, upon the amount of such tax.

By the plaintiff in error it is insisted that it has not been engaged in doing an express business by railroad, within the meaning of such act of the Legislature. Its contention is that such express business by interurban railways was not included within the term “by railroad or water,” as used therein.

The word “railroad” in its generic sense is broad enough to include any and all kinds of railroads. In this sense it would include steam railroads, interurban railroads, street railroads, tram railroads, as well as all other kinds. The question, however, for our decision is: In what meaning was the word used in the statute referred to in fixing the class of express companies to be taxed upon a gross receipts basis?

It plainly appearing that the word railroad was not used in a special sense, as applied to art, or a particular trade or subject-matter, it should be understood as having been employed in said tux act in its ordinary signification. This is the construction required by statute to be placed upon it. We are of opinion that in this sense the word “railroad,” as commonly understood, means a steam railroad engaged in the transportation of freight and passengers from one railroad depot to another. We think this is the common, ordinary signification of the word as it is employed by the public generally, who, when speaking of interurban railways, seldom, if ever, call them railroads, and seldom, if ever, omit to call them “interurbans,” or “interurban railways.” In addition to this common use of the term, the word is used in this same sense when employed in the various statutes dealing with the subject of railroads and interurban railways. As so employed, when interurban railways are intended to be dealt with by the Legislature, they are not called railroads, but are referred to by using the word “interurban,” “interurban railroad,” “interurban railway,” or in some manner of description which always includes the word “interurban” as descriptive of the kind of railroads referred to. The word “railroad,” when it has been used alone by acts of the Legislature, so far as we are advised, is always used in the sense of steam railroads. So giving the word “railroad” its common, ordinary signification, we think “interurban railroads” were not intended to be included, and that a tax on express companies doing business by interurban railways was not intended to be fixed. Scott v. Farmers’ & Merchants’ National Bank, 97 Tex. 31, 75 S. W. 7-16, 104 Am. St. Rep. 835; Denison & Sherman Railway Company v. Railroad Commission of Texas, 95 Tex. 671, 69 S. W. 62; Riley v. Galveston City Railroad Company, 13 Tex. Civ. App. 247, 35 S. W. 826. This view is strengthened by the fact that when this taxing act in question was passed in 1997 interurban railway mileage in Texas consisted only of about 32 miles, being the single interurban railway which was being operated between Ft. Worth and Dallas, and a gross receipts tax upon express companies doing business by interurban railways would not at that time have been a fruitful source of revenue, while it must be observed that at such time express companies were and had been for a long time engaged extensively in conducting their business by steam railroads, over which their business had been alone conducted in this state. We think it plain that the Legislature in the taxing act of 1907 did not intend to include interurban railways in the use of the term “doing an express business by railroad or water,” and that express companies doing business only by interurban railway are not subject to the provisions of the act.

The judgment of the Court of Civil Appeals and of the district court are reversed, and the cause is here rendered in favor of the plaintiff in error.
      <g=^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    BONNER OIL CO. v. GAINES et al.

    (No. 2793.)
    (Supreme Court of Texas.
    Feb. 7, 1917.)
    1. Pbincipal and Surety <&wkey;33 — Consideration.

      To support a contract of suretyship, it is not necessary that any consideration pass directly to the surety, but a consideration moving to the principal alone is sufficient.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 65, 66; Dec. Dig. <&wkey;33J
    2. Principal and Surety <&wkey;35 — Consideration— Suejtcienoy.
    An extension of time for the payment of a debt is sufficient consideration for a contract of suretyship.
    [Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. § 68; Dec. Dig. <&wkey;36.]
    3. Principal and Surety <&wkey;35 — Consideration — Sueeiciency.
    Where a corporation owed a debt upon open account which was due and unpaid, an extension of time for payment thereof upon execution of notes by the corporation and its president individually was sufficient consideration to support the suretyship of the president.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 68; Dec. Dig. <&wkey;35.]
    Certified Question from Court of Civil Appeals of First Supreme Judicial District.
    Action by the Bonner Oil Company against John W. Gaines and the Lake Austin Canal Company. There was judgment for defendant Gaines in the trial court, which was reversed by the Court of Civil Appeals (179 S. W. 686), which certified the case to the Supreme Court.
    Affirmed.
    Hunt, Myer & Teagle, Rodman S. Cosby, and Campbell, Myer, Myer & Freeman, all of Houston, for plaintiff. Gaines & Corbett, of Bay City, and Cole & Cole, of Houston, for defendant.

      Rehearing denied March 8, 1917.

   PHILLIPS, C. J.

The statement of the case as contained in the certificate of the honorable Court of Civil Appeals may be thus summarized:

The suit in the trial court was upon two notes given in favor of the Bonner Oil Company by the Lake Austin Canal Company and John W. Gaines, each for the sum of $445.20, and maturing, respectively, sixty and ninety days after date. The defense of Mr. Gaines was that the notes were, as to him, without consideration. It was pleaded by the plaintiff in reply that his execution of the notes was for the purpose of an extension of time being granted for the payment of the debt of the Canal Company which the notes expressed, affording a sufficient consideration for Gaines’s liability. To this Mr. Gaines answered that there was no agreement for any such extension at the' time of his execution of the notes; that he was not requested by the plaintiff to sign them; and that the purpose of their execution was to settle all controversy as to the amount of the debt due the plaintiff by the Canal Company. Mr. Gaines was president of the Canal Company and a principal stockholder. Prior to the execution of the notes the Canal Company had incurred an indebtedness in the amount of the notes in favor of the Oil Company for oil purchased on open account. This account was due and unpaid when the notes were executed. The Oil Company was endeavoring to collect it, and sent an agent, Bland, to the office of the Canal Company for that purpose, or, if that could not be done, to close the account by notes. Bland called upon Mr. Gaines in this connection, stating his purpose. Mr. Gaines replied that the corporation had not sold its rice and had experienced “bad luck.” Thereupon Bland presented the notes for signature. They were signed by Mr. Gaines in the name of the Canal Company, by himself as president, and by himself individually, and returned to Bland, Mr. Gaines explaining at the time, in effect, according to Bland’s testimony, “that he was doing this for Bland and not for the company,” and saying, “I don’t often do this,” or, “This is something I haven’t often done.” Bland did not request Mr. Gaines to sign the notes individually, nor did he tell him that they would not be accepted without his individual signature; but he testified that he would not have accepted simply the notes of the corporation alone.

air. Gaines, in testifying to tlie circumstances under winch he signed the notes, stated, in substance, that in presenting the notes Bland said the Oil Company needed them to use as collateral at its bank, and might do so; and this was the only reason assigned by Bland for wanting the account settled by notes. It appears that he also testified:

“I have been puzzled several times myself why, I did sign the paper at the time, to tell you the honest truth; and I couldn’t tell you to this day why I did it. I don’t know why I endorsed that paper. * * * It is a mystery to me.”

After the maturity of the first note Mr. Gaines wrote the Oil Company, asking for an extension of time in which to pay it, and in this letter said:

“In this connection I wish to say that if you will do so (extend time of payment until fell) the Lake Austin Canal Company will very much appreciate you carrying this account over until fall, as it is practically impossible for them to pay it at this time, and get through this season’s work. I will re-endorse this payer, payable in the fell, and if you will do as above suggested, it will be a great accommodation to me and to the Canal Company.”

In the trial court judgment was rendered in favor of Mr. Gaines. On appeal this judgment was reversed and judgment rendered against him in favor of the Oil Company.

We have materially abbreviated the certificate of the Court of Civil Appeals in stating the case, but the foregoing is the substance of it.

Referring to its action in rendering judgment against Mr. Gaines, the Court of Civil Appeals propounds the following question: “Did we err in so doing?”

To support a contract of suretyship it is not necessary that any consideration pass directly to the surety. A consideration moving to the principal, alone, will support the suretyship. An extension of time for the payment of a debt is a sufficient consideration for a contract.

When the notes in question were executed, the indebtedness of the Canal Company to the Oil Company upon the open account was due and unpaid. By executing the notes the Canal Company obtained a definite extension of time for the payment of its debt, and by their acceptance the Oil Company was deprived of the right to demand its immediate payment. This was a benefit enuring to the former, and the surrender of a right by the latter. That no request was made of Mr. Gaines to individually sign the notes does not alter the fact that his principal derived a distinct advantage as the result of the transaction, supplying a consideration sufficient in law to support his own undertaking. We do not think he could have signed the notes save in recognition of the benefit acquired by the Canal Company through the extension of the maturity of its debt. With this true, and knowledge of it before him, the voluntary character of his act does not render him any the less liable than if it had been involuntary. In our opinion the judgment of the Court of Civil Appeals was correct. 1 Brandt on Suretyship and Guaranty, §§ 15 and 16; 2 Parsons on Contracts (9th Ed.) 8; Ilannay v. Moody, 31 Tex. Civ. App. 88, 71 S. W. 325; People’s State Bank v. Fleming-Morton Co. (Civ. App.) 160 S. W. 648; Atherton v. Marcy, 59 Iowa, 650, 13 N. W. 759; Pulliam v. Withers, 8 Dana (Ky.) 98, 33 Am. Dec. 479.
      <a=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, O. J.

text:
    ARANSAS COUNTY et al. v. COLEMAN-FULTON PASTURE CO. et al.
    (No. 2821.)
    (Supreme Court of Texas.
    Jan. 31, 1917.)
    1. Counties &wkey;>174^LiMiTATi0NS on Use oe Funds — “Roads”—“Bridge.”
    Const, art. 3, § 52, as amended in 1903, authorizing any county, any political subdivision of a county, any number of adjoining counties, etc., upon a two-thirds majority vote of the resident property taxpayers to issue bonds for the construction and maintenance of macadamized, graveled, or paved “roads and turnpikes,” empowers counties to build necessary bridges or structures to cross streams, swamps, or marshes as part of such roads, for a “bridge” is ordinarily but the part of a road or highway that traverses a stream, and the purpose of this constitutional amendment is a broad one, necessitating giving the word “roads” a broad meaning in order to give the benefit of the amendment to counties and sections where, because of stretches of swamps or coast indentations, the power to build roads would be ineffectual unless it included power to build connecting bridges and causeways; the specific sense given the term “roads” in Const, art. 3, § 56, art. 8, § 9, art. 11, § 2, and article 16, § 24, dealing with'roads and bridges as distinct subjects, not being controlling as to this later amendment.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 264, 265; Dec. Dig. <§=^>174.
    For other definitions, see Words and Phrases, First and Second Series, Bridge; Road.]
    2. Constitutional Law &wkey;>13, 15 — Construction oe Constitutional Provisions.
    The sense in which a term is used in other provisions of a Constitution is not conclusive of its meaning in a particular provision; but the spirit, purpose, and scope of, the particular provision are to be consulted to determine the meaning of its terms.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 9, 10; Dec. Dig. <&wkey;13, 15.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the Coleman-Fulton Pasture Company and others against Aransas County and others to restrain the County Judge and Commissioners’ Court from issuing bonds. The Court of Civil Appeals reversed (180 S. W. 312) an order of the district court refusing a temporary injunction, and defendants bring error.
    Judgment of the Court of Civil Appeals reversed, and order of the district court, affirmed.
    See, also, 191 S. W. 556.

      E. A. Stevens, of Rockport, and Dougherty & Dougherty and B. D. Tarlton, Jr., all of Beeville, ■ for plaintiffs in error. Proctor, Vandenberge, Orain & Mitchell, of Victoria, and Templeton, Brooks, Napier & Ogden, of San Antonio, for defendants in error.
   PHILLIPS, O. J.

By the amendment of 1903, authority is given by section 52 of article 3 of the Constitution to any county, any political subdivision of a county, any number of adjoining counties, etc., acting under legislative provision, upon a vote of a two-thirds majority of the duly qualified resident property tax payers of the district or territory to be affected thereby, in addition to all other debts, to issue bonds in any amount not in excess of one-fourth of the assessed valuation of the real property of such district or territory, for, among other purposes, the following:

“The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

The question in this case is that of the right of Aransas county, under this provision of the Constitution and pursuant to an act of the Legislature, to devote an issue of its bonds, $300,000.00 in amount and duly voted by the tax payers of the county, to the building of- a roadway consisting in part of a bridge structure across Aransas Bay between Lamar Peninsula and Live Oak Peninsula in that county, so as to connect the public road system of the county lying north of Copano Bay with that on Live Oak Peninsula.

Aransas County is a coast county indented by bays. The mainland on the south is constituted by Live Oak Peninsula, where the county seat, Rockport, is situated. It extends in a northerly direction between Aran-sas Bay on the east and Copano Bay on the west to the channel between the two bays at its northern end, separating it from Lamar Peninsula, the mainland on the north. This channel varies in depth from three to thirteen feet. The causeway, or roadway, for the building of which it was proposed to use the bond issue, will be, according to the plans, about 13,000 feet long. Its middle part will span the channel between the two mainland portions of the county and will consist of a reinforced concrete bridge, 3,033 feet in length, with a draw span in the center, and having thereon a roadway twenty feet in width to be paved with wooden blocks. For its remaining length, or about 10,000 feet, the causeway will consist of roads connecting with each end of the bridge, fifty feet in width and paved with shell.

An injunction was sought by the defendants in error to restrain the issuance and sale of the bonds for this contemplated purpose authorized by the legislative act. It was denied by the District Judge. On appeal, this order was reversed by the honorable Court of Civil Appeals for the Fourth District and the case remanded with the direction that the injunction issue. 180 S. W. 312.

The holding of the Court of Civil Appeals was, in substance, that while a causeway is to be regarded as a part of a road within the meaning of the Constitution, the proposed causeway is, to the extent of 3,033 feet, a bridge, the construction of which is not specifically designated in section 52 of article 3 as one of the purposes embraced in the section, and, hence, the proposed bonds were voted for an illegal purpose. Concretely, therefore, the question for decision is the sense in which the term “roads” is used in section 52 of article 3 of the Constitution.

A bridge is ordinarily but the part of a road or highway that traverses a stream. There is, accordingly, ample authority for the proposition that when the term “roads” is used in statutes, unless from the context it appears to have been used in its specific sense, its generic meaning should be given it, which includes “bridges.” City of Chicago v. Powers, 42 Ill. 169, 89 Am. Dec. 418; Follmer v. Nuckolls County, 6 Neb. 204; Isaacs v. Wiley & Elkins, 12 Vt. 674; Montgomery County v. Clarksville, etc., Co., 120 Tenn. 76, 109 S. W. 1153; Andrews v. Weckerman, 144 Mich. 199, 107 N. W. 870; 25 A. & E. Ency. of Law (2d Ed.) 985, notes.

This rule is well illustrated by the case of Berlin Iron-Bridge Co. v. City of San Antonio, 50 S. W. 408, also decided by the honorable Court of Civil Appeals for the Fourth District. There, the charter of the city of San Antonio authorized the issuance of its bonds for “street improvements,” without any express mention of bridges. The bridge company, under a contract with the city, erected a bridge across the San Antonio River where it was crossed by one of the city streets. With respect to the right of the bridge company to have the proceeds of the city’s bonds issued for “street improvements” and in its hands at the making of the contract treated as a fund for the satisfaction of the contract, it was held that the bridge was a “street improvement,” for the payment of which according to the contract the bond fund might appropriately be used.

In different provisions of the Constitution, namely, section 56 of article 3, section 9 of article 8, section 2 of article 11, and section 24 of article 16, roads and bridges are dealt with as distinct subjects. In section 9 of article 8, the construction of each is recognized as' a distinct purpose of taxation. Inasmuch as the term “roads” is very plainly used in these sections in a specific sense, it is urged by the defendants in error that the same restricted meaning should be given it in the construction of section 52 of article 3. Such was the view of the Court of Civil Appeals. There is force in the position as a general rule of construction. But the sense in which a term is used in other provisions of a constitution is not a conclusive test of its meaning in a particular provision. The spirit, purpose and scope of the particular provision are all to be consulted in the effort to determine with certainty the meaning of its terms.

The amendment of 1903 to section 52 of article 3, which includes the subdivision quoted at the beginning of this opinion, was adopted at a later time than any of the provisions above referred to. Upon the general subject of road improvement, it marked a radical departure from the previous policy of the State. It was the response to a public demand that provision be made whereby the State, and every section of the State, might be supplied through voluntary taxation with adequate, durable and permanent roadways. The former bounds of taxation for their construction and maintenance were set aside, and the political subdivisions named, in addition to all other debts, were, under legislative provision, given authority upon a requisite vote to issue bonds in the liberal amount of one-fourth of the assessed valuation of the real property of such districts. Not only was such authority given to counties and subdivisions of a county, but any number of adjoining counties were empowered to form themselves into a taxing district as a means of securing the improvement in the territory comprised by them. Different units for the necessary taxation, and therefore different units as the beneficiaries of the taxation, from those theretofore existing, were thus authorized. It was plainly designed that the extent of the improvement should not be limited alone to the necessities of a county, nor was it to be longer dependent alone upon the powers of a county. The purpose of the amendment was a broad one, its scope was large, its spirit liberal.

Furthermore, it was to prove of use to every section of the State, no less to those parts where the building of roads might be attended by the crossing of swamp lands and marsh lands, or other natural obstacles, than to those whose topography is more favorable; no less to the coast counties with their shallow channels and indented inlets and bays to be reckoned with in the procurement of convenient and enduring highways of travel, than to those of the prairie region and black land belt whose elevation and surface afford no such difficulties and present no such problems.

In a word, the purpose of this amendment plainly was to provide the means of building and maintaining not alone neighborhood, precinct or even county roads, but adequate road systems throughout the 'entire State, to be-availed of by larger or smaller areas as might be desired, so as to afford through the exercise of a liberal taxing power widely distributed, adequate and continuous highways through every section of the State. Such a purpose stands out, boldly, we think, in the broad and sweeping provisions of the amendment.

With this true, is it consonant with such a purpose to give the term “roads” as used in the section a narrow construction, confining its meaning to merely that part of a highway which traverses a ground surface, and excluding any part which might, for illustration, cross ten feet of shallow water? If, for instance, in the building of a road authorized by this section through a given district it is necessary to cross a stretch of marsh land subject at different seasons to be more or less covered with water, requiring for the permanence of the road that it be laid upon a species of trestle for that distance, is it to be believed that the framers of the section intended the term “roads” should have a meaning which would permit the highway to be built to the marshy area and beyond it, hut not across it, thereby possibly rendering the road useless to the district to be served by it? Under such a construction the constitutional provision would be valueless to certain sections of the State, whereas it must have been intended to yield its beneficial result to every section. In such sections it would be impossible to build a road for any considerable distance upon entirely a ground surface. Low lands and swamp lands intervene, requiring, for an enduring roadway, that for certain distances it be laid upon some kind of an elevated structure. Looking to the purposes of the provision, can it be considered that a meaning for the term “roads” was intended which would in large measure defeat its operation as applied to such sections of the State?

The constitutional provision in force prior to the adoption of the amendment to section 52 of article 3 confined to the counties of the State the power of creating indebtedness for the construction of county bridges and roads. The amendment to section 52, article 3, however, shows it was contemplated that under legislative provision road districts, other than counties, might be formed, which, as defined political subdivisions of the State, should in their own right exercise this power for the construction and maintenance of roads in their territory. This is revealed in the authorization for the formation of any number of adjoining counties into a district under legislative provision. Such a district, it was clearly intended, should constitute a corporate entity, invested with an individual authority for this purpose, to be exercised with regard to the needs of the district as distinct from the needs of a county. With this enlarged taxing power at the disposal of such a district and to be exerted with regard to the necessities of the entire district, is it to be supposed that with respect to bridges which might be essential parts of any practical system of roads constructed in the territory, it was yet the purpose of this constitutional provision to limit the district to the necessities of a county and likewise leave it dependent upon the restricted taxing power of a county? Was it intended, as applied to such a district, that a dual authority should exist with respect to the construction of these essential parts of any adequate system of roads, the district providing for the construction of the surface roadways, and the counties within the district the bridges necessary to them, with the risk of the entire improvement being defeated or rendered useless if the counties-, through either unwillingness or want of power, should fail to provide the necessary bridges as parts of the roads? With this amendment contemplating the exercise of a larger power, over a more extended area, with respect to road improvements than that theretofore confided to the counties alone, in seeking the meaning of the term “roads” as used in the amendment it seems to us more reasonable to suppose that the purpose was to make possible the full exertion of the power in relation to every essential feature of the general subject. That subject, — the purpose prompting the amendment, -was a general and vigorous improvement of the road facilities of the State. If it had been intended that this important work should, as theretofore, be intrusted to the counties alone, there would be good reason for believing that the same limitations with respect to the meaning of terms should govern as had been imposed by former provisions of the Constitution upon their exercise of the power. But this reasoning fails when it is seen that the amendment contemplated the exercise not only of a far larger power, and therefore, in a certain sense, a different power in respect to taxation for the general purpose than had before been committed to the counties of the State, but its exercise in certain instances by bodies other than counties and for a territory much greater in extent than that of any county. The term “roads,” in our opinion, was not used in any such narrow sense in this connection as would prevent in the construction of necessary roads the necessary bridges for such roads. The broad scope of the constitutional provision when considered in the light of its purpose compels the view that the term was used in the amendment in such a sense as would make possible completed and continuous roads in fulfillment of the liberal policy to which the provision is due. Section 52 of article 3, as amended, in our opinion means that the political subdivisions therein named and authorized may, pursuant to legislative provision and by means of the bond issues therein authorized, construct and maintain in their territory roads of the kinds designated, and where necessary as a part of such construction may, as a part of the road, erect proper structures for the road over such streams, swamps or marshes as it may cross. We do not hold that under this constitutional provision moneys thereby voted may be applied to the construction of bridges exclusively, not to be erected as a necessary part of the construction of a road, but as an independent or exclusive undertaking.

The improvement involved in the present case was to the extent of nearly two miles clearly a surface roadway. Its purpose, it appears, was to connect the public road systems of the county. In its general character it was a roadway. It did not lose that character because in its middle part for 3,000 feet it spanned a channel of water. It is to be assumed that it was considered by the people of the county as a necessary link in the county’s system of roads and that the bonds were voted with reference to its construction for that purpose. The Constitution does not require the construction of roadways of particular lengths or at particular places. These matters are left as a part of the question in the election to determine whether the voluntary tax shall be imposed and the debt created. So much of the roadway as constituted a bridge structure for the spanning of the channel was, it clearly appears, a necessary part of the roadway. Under section 52, article 3, as amended, the county had the right to apply the bond issue to the construction of the roadway, and in our opinion had equally the right to use the issue for the construction of that part of the roadway which spanned the channel.

The judgment of the Court of Civil Appeals is reversed and the order of the District Judge refusing the injunction is affirmed.
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text:
    ARANSAS COUNTY et al. v. COLEMAN-FULTON PASTURE CO. et al.
    (No. 2822.)
    (Supreme Court of Texas.
    Jan. 31, 1917.)
    Highways <S^103 — Dimitations on the Use of Funds — “Paved Roads.”
    Const, art. 3, § 52, as amended in 1903, authorizing counties, etc., to issue bonds for the construction and maintenance of macadamized, graveled, or “paved” roads and turnpikes, empowers counties, etc., to construct shell roads; roads paved with shell being “paved” roads within the constitutional provision.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 236, 335; Dec. Dig. &wkey;>103.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the Coleman-Fulton Pasture Company and others against Aransas County and others to restrain diversion of money voted for the construction of roads. The Court of Civil Appeals reversed (180 S. W. 316) an order of the district court dissolving a temporary injunction, and defendants bring error.
    Judgment of the Court of Civil Appeals reversed in part and affirmed in part, and judgment of the district court affirmed.
    E. A. Stevens, of Rockport, and Dougherty & Dougherty and B. D. Tarlton, Jr., all of Beeville, for plaintiffs in error. Proctor, Vandenberge, Crain & Mitchell, of Victoria, and Templeton, Brooks, Napier & Ogden, of San Antonio, for defendants in error. A. J. Parker, of San Antonio, for Austin Bros.
   PHILLIPS, O. J.

This is substantially a companion case to No. 2821, Aransas County et al. v. Coleman-Fulton Pasture Co. et al., 191 S. W. 553, this day decided.

Under section 52 of article 3 of the Constitution, the qualified tax payers of Aransas County duly voted a bond issue in the sum of $25,000.00 for the purpose of building a roadway about seven miles in extent from Kockport, the county seat, to the Refugio County line. It was proposed to pave the roadway with shell. In order to make a completed roadway it was necessary at four different places in the road to build bridges across shallow stretches of water, in depth about five feet. One of the bridges was to be 2,910 feet long, one 52½ feet long, one 70 feet long, and the fourth 2,100 feet long. One-half the cost of the last named bridge spanning Aransas River was to be borne by Refugio County. The action was an injunction proceeding to restrain the use of the proceeds of the bonds for the paving of the road with shell and for the construction of these bridges as parts of the roadway. A temporary injunction previously granted was dissolved on hearing, and from this judgment an appeal was taken to the honorable Court of Civil Appeals for the Fourth District, where the judgment was reversed and the cause remanded with instructions to the trial court to issue a temporary injunction restraining the use of the funds of the bond issue in the construction of the bridges, but not for the paving of the road with shell.

It clearly appears that the proposed bridges across these stretches of shallow water were essential parts of the road and necessary to make it a completed road. The case is therefore ruled by the decision in cause No. 2821, Aransas County et al. v. Coleman-Fulton Pasture Co. et al.

There is no doubt in our minds as to roads paved with shell being “paved” roads, within the meaning of section 52, article 3, as amended, and we approve the ruling of the Court of Civil Appeals upon this feature of the case. As to its ruling in respect to the use of the proceeds of the bond issue for the construction of the bridges named, its judgment is reversed. The judgment of the District Court, dissolving the original temporary injunction, is affirmed.
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author: VANTIS, J.

text:
    BEACH et al. v. McKAY, State Secretary.
    (No. 2850.)
    (Supreme Court of Texas.
    Jan. 31, 1917.)
    1.Mandamus <&wkey;88 — Performance of Official Acts — Discretionary Act.
    Const, art. 12, § 6, provides that no corporation shall issue stocks or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1126, provides that, when stockholders of a company furnish evidence to the secretary of state that the full amount of authorized capital stock has in good faith been subscribed, and 50 per cent, thereof paid in cash, or its equivalent in other property, or labor done, etc., it shall be the duty of such officer on payment of office fees and franchise tax to receive, file, and record the charter, and give a certificate showing the record. Article 1127 provides that the term “satisfactory evidence,” as used in article 1126, shall be an affidavit of those who executed the charter stating the name, residence, and address of each subscriber, the amount subscribed and paid by each, the cash value of any property received, giving its description, -location, etc., and from whom and the price for which it was received, the amount, character, and value of labor done, and from whom and at what price it was received. Article 1128 provides that, if the secretary of state is not satisfied, he may require other and more satisfactory evidence before he shall be required to receive, file, and record the .charter. Held that, as article 1128 gives the secretary of state discretion to refuse a charter when the stockholders of a proposed company have failed to furnish satisfactory evidence that the provisions of article 1126 have been complied with, his act in issuing the charter not being purely ministerial or imperatively required of him by law, he cannot be required by mandamus to issue a charter in a case where he has not received evidence satisfactory to him that the provisions of article 1126 have been complied with.
    [Ed. Note. — For other cases, see Mandamus, Dec. Dig. <&wkey;88.]
    2. CORPORATIONS ■©=»21 — ISSUE OF CHARTER— Statute.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1126, 1128, the secretary of state was within his rights in refusing to issue a charter to a company where it involved the acceptance of a patent at the value of $64,050, where the evidence was not satisfactory that it had in fact such a real value, and it was shown that a three-fourths interest in the patent had been acquired for $10,000 in cash.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 66-68; Dee. Dig. <&wkey;>21.]
    3. Mandamus <&wkey;88 — Issuance of Charter-Questions of Fact.
    Whether stock had'been subscribed in good faith, and 50 per cent, thereof had been paid in cash, or its equivalent, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1126, are questions of fact to be determined by the secretary of state by the exercise of the discretion lodged with him by article 1128.
    [Ed. Note. — For other cases, see Mandamus, Dec. Dig. <&wkey;>88.]
    Petition ior mandamus on relation of Frank W. Beach and others against John G. McKay, Secretary of State.
    Writ refused.
    Gilbert H. Irish, of 'Dallas, for relators. B. F. Looney, Atty. Gen., and C. W. Taylor and C. M. Cureton, Asst. Attys. Gen., for respondent.
   VANTIS, J.

The relators, Frank W. Beach and numerous others, filed their petition in this court asking that a writ of mandamus be issued against the secretary of state, John G. McKay, the respondent herein, to require him, as secretary of state, to issue a charter for the Moody Calculator Company. The relators had previously presented to' the secretary of state their application for such a charter in proper form, showing the purpose of the proposed corporation to be the manufacture and sale of Moody calculators, and the purchase and sale of goods, wares, and merchandise used in connection therewith. The respondent refused to issue and file the charter, one of the grounds for his refusal being, as shown by his answer herein, that the value of the letters patent, which in the application for charter had been valued at $64,050, was so uncertain and speculative that he was unable to determine its actual value. The application for charter alleged that the proposed corporation would have an authorized capital stock of $150,000, and that one-half of this amount had been paid in cash or its equivalent, the said patent being treated as worth $64,050, and as having in that sum been paid, by its assignment to the proposed corporation. Section 6 of article 12 of the state Constitution,' relating to the issuance of stocks and bonds, is as follows:

“No corporation shall issue stock or bonds except for money paid, labor done or property actually received, and all fictitious increase of stock or indebtedness shall be void.”

Article 1126, Vernon’s Sayles’ Civil Statutes, is as follows:

“Whenever the stockholders of any such company shall furnish satisfactory evidence to the secretary of state that the full amount of the authorized capital stock has in good faith been subscribed, and fifty per cent, thereof paid in cash, or its equivalent in other property or labor done, the product of which shall be to the company of the actual value at which it was taken, or property actually received, it shall be the duty of said officer, on payment of office fees and franchise tax due, to receive, file and record the charter of such company in his office, and to give his certificate showing the record thereof.” . .

Article 1127, Vernon’s Sayles’ Civil Statutes provides that the term “satisfactory evidence;” as used in article 1126, above mentioned, shall consist of the affidavit of those who executed the charter, stating the name, residence, and post office address of each subscriber to the capital stock; the amount subscribed by each; the amount paid by each; the cash value of any property received, giving its description, location, and from whom and the price at which it was received; and the amount, character, and value of labor done, from whom and price at which it was received. Article 1128 of said statute is as follows:

“If the secretary of state is not satisfied, he may, at the expense of the incorporators, require other and more satisfactory evidence before ’ he shall be required to receive; file and record said charter.”

It is clear that article 1128, above, lodges a discretion in the secretary of state to refuse to file and record a charter applied for when the stockholders of the proposed company have failed to furnish satisfactory evidence to him that the full amount of the authorized capital stock has been in good faith subscribed an$ 50 per cent, thereof paid in cash, or its equivalent. We are properly denied -the power to require by mandamus the secretary of state to issue a charter in a case where he has not received evidence satisfactory to him that the full amount of the authorized capital stock has in good faith been subscribed and 50 per cent, thereof paid in cash, or in its equivalent, as provided in article 1126.

By the affidavit of Frank W. Beach, one of the relators, it is shown that the amount of money which had been paid for the acquisition of a three-fourths interest in such patent was $10,000 in cash. The affidavits of several of the relators placed the value of said patent “in excess of $75,000.”

We think the secretary of state was within his rights in refusing to accept such a patent at a value of $64,050 when the evidence was not satisfactory to him that it had in fact such real value.

The question whether the stock had been subscribed in good faith, and whether 50 per cent, thereof had been paid in cash, or its equivalent, are questions of fact to be determined.by the secretary of state by the exercise of a discretion lodged with him by law. We have not the power to require him to exercise his discretion in a particular way on suefi questions of fact. If the act sought to require the secretary of state to perform were purely ministerial, we could compel its performance by mandamus; but before we are permitted to grant the writ of mandamus it must appear that the act sought to have him perform is imperatively required of him by law, and not a matter within his discretion. Mortgage Co. v. Hardy, 93 Tex. 295, 55 S. W. 169; Trinity Life & Annuity Society v. Love, 102 Tex. 278, 115 S. W. 26, 116 S. W. 1139; Durrett v. Robinson, 103 Tex. 502, 131 S. W. 400.

It is insisted by the Attorney General, in behalf of the secretary of state, that patent rights are never property which can be “actually received,” as provided by the Constitution. Such a question is not presented by the facts of this case as a question necessary to its decision, since the patent in this case is the only one before us. It appears that the secretary of state is unable from the evidence furnished to ascertain the value of the particular patent offered as property in this,case, and it is clear to us that his action in refusing to receive and file the charter is within the exercise of a discretion lodged with him by law, and we cannot revise his action in this particular, which is all that is necessarily presented to us for decision in this particular case. We are not called upon to decide, and do not decide, whether all patent rights are excluded by the terms of the Constitution, as not being “property actually received” within the meaning of the Constitution.

The writ of mandamus is refused.
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