author: PBENDEBGAST, J. MORROW, J. DAVIDSON, P. J.

text:
    ROBBINS v. STATE.
    (No. 4590.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <&wkey;662(6) — Evidence — FORMER Testimony of Witness.
    In homicide case where witness testifying in a former trial is out of the state and cannot he reached, his former testimony may be proved and introduced without violating constitutional right to be confronted by witnesses.
    2. Homicide <&wkey;211 — Evidence—Dying Declarations of One of Two Decedents.
    Where defendant killed his wife and a man at the same time, dying declarations of wife are inadmissible in prosecution for killing the man, under Code Cr. Proc. 1911, art. 80S, authorizing the dying declarations of deceased to be introduced in evidence in a prosecution for such person’s death.
    3. Witnesses <&wkey;52(7) — Competency of Wife —Dying Declarations.
    Where defendant shot and killed his wife and a man at the same time with separate shots, dying declarations of the wife are inadmissible in a prosecution for killing the man, under Code Cr. Proc. 1911, art. 795, prohibiting a wife from testifying against her husband except for an offense committed against her.
    Appeal from District Court, Galveston County; Bobt. G. Street, Judge.
    Mose Bobbins was convicted of murder, and be appeals.
    Beversed.
    Marsene Johnson, Elmo Johnson, Boy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PBENDEBGAST, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 99 years in the penitentiary.

The offense was alleged to have been committed before our murder statute was changed doing away with the two degrees of murder.

It appears that the appellant has been tried several times. In every instance before this he was convicted of murder in the first degree with the death penalty assessed. This is the second appeal. The first is reported in 73 Tex. Cr. R. 367, 166 S. W. 528. This trial was in accordance with the previous decision herein, except two questions which did not arise on that trial. In order to pass upon the questions herein raised it is unnecessary to make a statement of the testimony. The charge of the court is an admirable one and correctly submits to the jury every issue that was raised by the testimony.

However, it is sufficient to say that the evidence on behalf of the state was clear and amply sufficient to show that appellant was guilty of the murder of Mr. Blake, the deceased, and also his wife, Jane, at the same time and in the same transaction. In fact, it showed appellant assassinated both said Blake and his wife. His contention and testimony, if believed, would have shown that he was entirely justifiable, in that he killed deceased as he took him in the very act of sexual intercourse with his wife. The jury, however, did not believe his contention and testimony. In fact, the testimony was clearly sufficient to disprove his contention and testimony. All these matters were for the jury and the lower court.

Appellant’s bills 2 and 3 show that he objected for various reasons to the testimony of Dr. O’Farrell to certain statements of the deceased. The court expressly held that this testimony was admissible both as res gestee of the killing and as the dying statements of deceased. The testimony was clearly sufficient to sustain the court’s holding on both grounds. The same question was decided against appellant on the previous appeal.

Appellant’s bill 4 shows that he objected to the testimony of Dr. Ó’Farrell as to the res gestee statement of appellant’s wife to the effect that when he told her Blake, deceased, was going to die, that she said: “Poor man, poor man, he lost his life trying to protect me.” And his bill No. 6 shows that he objected to the same testimony by Mr. Wooley. The court below held that this statement was made to both of these witnesses voluntarily and at such time and under such circumstances as to constitute it res gestee. The ruling of the trial judge was correct in both instances, as was also held on the previous appeal herein. The authorities are there cited. It is unnecessary to repeat them.

His fifth bill shows he objected to the testimony of Mr. Young, in substance that he (Young) heard deceased’s wife complaining to Mr. Blake, deceased, several hours before the killing, wherein she requested Mr. Blake to not let Mr. Blair go to Bosenberg, and, when he asked her why, she said that Mose (appellant) was always threatening to kill her, and that if Mr. Blair went Mose would hurt her, and that she would not stay there; that Mr. Blake said to her: “Don’t go. Go upstairs (in the ginhouse) and stay until Mr. Blair comes back.” The court properly admitted this testimony, stating that it was admitted because the conversation was in the presence and hearing of appellant. The evidence was sufficient to show that it was in his hearing and presence. Under the circumstances, this testimony was admissible. The same character of testimony of Mr. Robt. Blair was held admissible on the former appeal.

The testimony clearly shows that several months before this killing appellant had assaulted and seriously and severely cut up his wife, in Matagorda county where they then lived, and that he was indicted for assault with intent to murder her; that on that occasion, after he had so cut up his wife, he was told that he had killed her, and he told Mr. Carr, the officer, that he was glad, that he intended to and would kill her. There was other testimony clearly showing that about 10 days before this killing, while he was at work for Mr. Blake (deceased) and his partner in Et. Bend county, he went to Bay City in Matagorda county where Ms wife was, and got her to come to appellant’s camp to do the cooking, and that this was about 2 weeks before his said case for assault on his wife was set for trial, and that his purpose in getting her away from Matagorda county was to prevent her testifying against him in that case.; and it is the state’s contention, and the evidence tends to show, that he intended to go to the extent of killing her to prevent her testifying in that case. There was other testimony showing his hostility against her shortly before he killed her and Blake and his tMeat to kill her. He denied all these facts and claimed that he and his wife were on the best of terms at all times up to the very time he killed her and deceased. The testimony therefore of Mr. Carr, as stated above, under the circumstances, was clearly admissible,. as held by the trial judge. Also the testimony of Mr. Carr to the effect that appellant’s wife had nearly every week for a year or two before this killing complained to him of appellant’s ill treatment of her. The evidence and qualification of the bill shows that the officer communicated these complaints to defendant at the time, and under the circumstances of this case, as held on the previous trial, the testimony of the officer, Mr. Carr, was admissible.

As stated, all these questions were in substance and effect held against appellant on his previous appeal. They are sufficiently stated in said opinion.

We now come to. the two questions which were not raised on the previous trial. On a previous trial of appellant, the witness Robert Blair gave material testimony against him in favor of the state. On this trial it was shown that this witness was out of <this state; that he was in Idaho, and his presence could not be had. Thereupon, after proving up his former testimony, the court permitted its introduction on this trial. Appellant objected on the ground that it violated his constitutional right to be confronted by the witness personally against him in open court. This question, in a great many decisions of this court, has been held against appellant. In 1 Branch’s Ann. P. C. § 76, is collated a large number of these decisions. It is unnecessary to copy them here. They will be, and are now, adhered to by this court; and it will not follow the overruled Cline Case, 36 Tex. Cr. R. 320, 36 S. W. 1090, 37 S. W. 722, 61 Am. St. Rep. 850, nor the Kemper Case, 63 Tex. Cr. R. 1, 138 S. W. 1025, to the contrary holding. It is unnecessary to again discuss the question, as it has been so many times discussed and the authorities cited in the said decisions collated by Mr. Branch.

The only other question raised is by appellant’s eighth bill, wMch shows that over his objections the court permitted Dr. Brooks to testify what appellant’s wife, Jane, said to him, to the effect that she went into the ginhouse to be in a safe place so that she could have protection from her husband, that she went upstairs and got to bed, and that the next thing she knew appellant was standing over her, and that she was so close that when he shot it set fire to her clothes. This testimony was objected to by appellant because it was hearsay, not res gestee, and that it was in effect allowing the wife to testify against her husband. The court admitted this testimony as her dying declaration. The statute (article 808, C. C. P.) authorizes the dying declaration of a deceased person to be introduced in a case against an accused where he is charged with killing such deceased person. In this case appellant was mot indicted, nor on trial, for killing his wife, but he was on trial for killing the deceased, Blake. Again, article 795, C. O. P., expressly prohibits the wife from testifying against her husband in any criminal prosecution except for an offense committed by him against her. This prosecution, as stated, was not a prosecution against appellant for the killing of his wife. It is true that he killed both, deceased and his wife, at the same time ¿nd in the same transaction, but not by the same shot. Said dying declaration by her was prohibited under both articles. Under no contingency shown in this record was said testimony by Dr. Brooks admissible.

Por this error alone the judgment is reversed, and the cause remanded.

MORROW, J.

I concur in the reversal on the ground that the evidence of Dr. Brooks mentioned in the above opinion was not admissible. On the other questions discussed I express no opinion, except that I think the reproduction of evidence was proper. Young v. State, 199 S. W. 479.

DAVIDSON, P. J.

(concurring). I concur in the reversal of the judgment. There are other matters which, in my judgment, are equally as cogent why this judgment should be reversed. I am firmly convinced, as I was upon the former appeal, that this is not a case of murder from any viewpoint of the evidence. It is not my purpose, to go into a detailed statement of tlie facts, but will state just enough of the undisputed facts to show why I think the judgment ought to be reversed on the proposition T have asserted.

The defendant, a negro, was working for twp white men, one of whom was the deceased. The white men had a contract to build roads in Ft. Bend county. Appellant brought his wife, at the suggestion or instigation of deceased, from Matagorda county to the camp in Ft. Bend county to cook. Trouble seems to have arisen between defendant and his wife. Appellant went, on the evening preceding the homicide at night, to a railroad station near by. Upon returning he ascertained that his wife had been taken by deceased to his bedroom, or to a room deceased occupied as a bedroom. Upon ascertaining this, appellant obtained a pistol and went to the room. Appellant’s wife was sleeping in the same room in which deceased was sleeping, their beds being a few feet apart. The deceased claimed that he took appellant’s wife to his room to protect her against the threats of appellant. Appellant believed he took her for other purposes. Deceased had a cot in the same room, and there was evidence of it having been occupied, and on it was found a pistol. The deceased was shot in the back, and appellant’s wife was shot in front. The dying declaration or res ges-tae statement of deceased was, in substance, that, when he ascertained appellant was in the room, he (deceased) went in a stooping position from his bed to that of appellant’s wife to notify her that defendant was in the room, and while going in a bending or stooping position to her bed he was shot in the back by appellant. Appellant said deceased was on his knees as he approached the bed of appellant’s wife. From this shot he died. He did not carry his pistol with him, but left it in his bed when he started to the bed of appellant’s wife.

Appellant’s version of the matter was that he saw the deceased go to his wife’s bed, and immediately after reaching it engaged her in the act of sexual intercourse, and he began shooting. Deceased was shot in the back and his wife in the front. Both died.

It is undisputed that the wife of appellant was in the bedroom of the deceased. The deceased was either in bed with the wife of appellant, or approaching her bed in a bending or stooping attitude, when shot. If appellant’s theory is right, he was entitled to an acquittal. If the state’s evidence is correct, and the statement of deceased and the other facts are to be believed, there could be no higher degree of homicide than manslaughter. If one man takes the wife of another to his bedroom at night, and the husband goes into the room where they are and kills under circumstances asserted by the state, this cannot constitute murder. If so, the statutes on manslaughter have been vainly written. This judgment ought to have been reversed on the facts, and it ought to be held that from no viewpoint of the facts can there be a higher case than manslaughter, giving the state the benefit of the highest possible credit for its testimony.

I concur in the reversal, and desire to add these few observations' why I believe this judgment ought to have been reversed on the facts.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    McGARRY v. STATE.
    (No. 4753.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Burglary <&wkey;41(l) — Guilt—Sufficiency Off EVIDENCE.
    In a prosecution for burglary, evidence held insufficient to sustain a conviction.
    2. Criminal Daw <&wkey;376 — Evidence—Identity off Defendant.
    In a prosecution for burglary, proof that defendant registered in the town under an alias and claimed to be a deaf-mute, introduced in connection with his- identity as having been in the vicinity of the crime at the time in question, was admissible, and not within the purview of the law prohibiting attack on the character of defendant by the state.
    3. Criminal Law <&wkey;393(l) Compelling Dependant to Give Evidence Against Himself — Proof as to Finger Prints.
    Permitting the state to prove that defendant after his arrest made finger prints on a paper which corresponded with prints on the glass of a broken window pane in the burglarized premises was not violative of Bill of Rights, § 10, providing that accused must not be required to give evidence against himself.
    4. Criminal Law <5&wkey;395 — Evidence — Burglary.
    Documents found in defendant’s book or wallet, comprising certificates that a certain J. J. Wilson (not defendant’s name, but the name under which he registered at a hotel in the vicinity) was a deaf-mute, and worthy of assistance, and data connected therewith, were improperly received.
    5. Criminal Law &wkey;>491 — Evidence —Expert Opinion — Identification by Finger Prints.
    Where a witness claimed to have been engaged in the work of studying the subject of finger prints as a means of identification for 10 years, to have made a close study of it in various places, and to be able, by comparison of enlarged photographs of finger prints, to determine questions of identity, his testimony that the admitted finger prints on paper of defendant charged with burglary were identical with those on the broken window in the burglarized premises, and made by the same person, was admissible.
    Appeal from District Court, Milam County; John Watson, Judge.
    B. J. McGarry was convicted of burglary, and he appeals.
    Judgment reversed, and cause remanded.
    Robt. M. Lyles and U. S. Hearrell, both of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appeal is from a conviction for burglary. The depot office at Rockdale was burglarized on the 28th of November; entry having been made by breaking a window glass from the outside and unfastening the door from the inside. The safe was opened and some forty-odd dollars withdrawn. The appellant was a stranger in the community; was shown to have been in the town of Rockdale on the day before and the day after the burglary. He left a package in a store on the day before the burglary and called for it the following day. It contained some papers which were subsequently introduced in evidence, which papers were letters written certifying that J. J. Wilson was a deaf-mute, and other mem-oranda. He registered at a hotel, signing the register “J. J. Wilson,” claiming to he a mute. The burglary took place about between 6 and 7 o’clock in the evening. There was evidence that appellant and two other persons with him went on the train from Rockdale to Cameron, a short distance, on the night of the burglary after it occurred, and that appellant returned to Rockdale on a train the morning following and was arrested when he started- to leave on the train the same day. He changed a $10 bill at Cameron, but there was no evidence identifying it with the money stolen. He was found in possession of none of the stolen property. The evidence mentioned was practically all that was contained in the record, except that there was evidence that upon one of the window panes of the window that was broken there were finger'prints which were identified by expert testimony as identical with finger prints made by appellant on a piece of paper after his arrest. The evidence showed that there were other finger prints upon the window pane, and it was not practicable to tell when and by whom these were made' and when those claimed to have been made by appellant were placed upon the window. The window was situated so as to make it accessible to the general public, at a public place, and we regard the evidence insufficient to support the verdict. The fact that appellant was in the town at the time of the burglary and that he made finger prints upon the window is not inconsistent with his innocence, nor does it, with the other testimony, fulfill the legal measure of circumstantial evidence.

The contention that there was error in the proof that appellant registered under the name of J. J. Wilson, and claimed to be a inute, we think, is not sound. It was introduced in connection with his identity as having been in the vicinity of the scene of the crime at the time in question, and does not, we think, come within the purview of the law which prohibits the state to attack the character of the accused. Such color as it threw upon his character was legitimately incidental to, and res gestse of, his identification at the time and place mentioned.

The proposition that there was error in permitting the state to prove that appellant after his arrest made finger prints upon a paper was violative of the Bill of Rights (section 10), providing that an accused was not to be required to give evidence against himself, is, we think, untenable. The point in principle, we think, is decided against appellant in the opinion of this court in Pitts v. State, 60 Tex. Cr. R. 525, 132 S. W. 801, wherein it was held, Judge Ramsey writing the opinion, that evidence of footprints made under a similar circumstance was not to be rejected, and in which he reviewed various decisions to this effect, beginning with Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. These authorities and others will be found collated in Harris’ Constitution, Ann., p. 95, note 86.

The documents found in the book or wallet belonging to appellant, which constituted certificates that J. J. Wilson was a deaf-mute and worthy of assistance, and data connected therewith, we think, were improperly received in evidence.

The part of the window on which there were finger prints and the paper upon which appellant had made finger prints were taken to an expert, who testified in detail as to his study of and inquiry into the subject of finger prints as a means of identification. He claimed to have been engaged in that character of work for ten years, and to have made a close study of it in various places, and to be able by comparison of enlarged photographs of finger prints to determine questions of identity, claiming that it furnished an accurate means thereof; that he was skilled in the photographic process necessary to enlarge and develop them; and that a comparison of some of the finger prints upon the window and those on the paper, which were admittedly made by the appellant, showed that they were made by the same person. This testimony was objected to upon various grounds. No precedents in this state have been cited or found touching the admissibility of this character of testimony. The Supreme Court of Illinois, in the case of People v. Jennings, 252 Ill. 534, 96 N. E. 1081, 43 L. R. A. (N. S.) 1206, considered the subject, and in view of its novelty in this state we reproduce the statement of conclusions reached by that court, omitting the evidence showing the qualification of the witnesses, with the remark that the witness who testified in the instant case gave testimony showing his knowledge of the subject quite as fully as that detailed by the witnesses in the ease mentioned, from which case we quote as follows:

“It is further insisted in this connection .by plaintiff in error that the evidence of Halsted, Mrs. McNabb, and Miss McNabb was inadmissible because of the uncertain character of the identification. A great deal has been written and said in the past concerning’ the doubtful nature of testimony identifying persons. Men’s faces, like their handwriting, may be so similar that the keenest observer may be baffled in seeking to discover differences. ‘The witness,’ says Wharton, ‘is asked how he knows that the prisoner at the bar is the person who fired the fatal shot, and his answer is, “I infer it from a similarity of eyes, of hair, of height, of manner, of expression, of dress.” Human identity, therefore, is an inference drawn from a series of facts, some of them veiled, it may be, by disguise and all of them more or less varied by circumstances.’ Wharton on Crim. Evidence (8th Ed.) § 13. In his charge to the jury in the Tichbqrne case Lord Cockburn said: ‘Frequently a man is sworn to who has been seen only for a moment. A man stops you on the road, puts a pistol to your head, and robs you of your watch or purse; a man seizes you by the throat, and while you are half strangled his confederate rifles your pockets; a burglar invades your house by night, and you have only a rapid glance to enable you to know his features. In all these cases the opportunity of observing is so brief that mistake is possible, and yet the lives and safety of people would not be secure unless we acted on the recollection of features so acquired and so retained, and it is done every day.’ Wharton on Crim. Evidence (8th Ed.) § 803, note; Jones on Evidence (2d Ed.) § 361. In Ogden v. People, 134 Ill. 599, 25 N. E. 755, the accused was charged with robbery. On the trial one Martin and his wife and daughter, who had known the accused for ten years, testified that he came to their house at night with his face wrapped in red flannel and ordered them to deliver up their money. They testified positively to his identifi-ca'tion, recognizing his voice. The court held the testimony competent, and affirmed the judgment. It has been frequently held that a witness may testify to a person’s identity from, his voice or from observing his stature, complexion, or other marks. See 1 Wigmore on Evidence, § 660, and authorities cited in note 1; State v. Lytle, 117 N. C. 799, 23 S. E. 476. This testimony was competent. The weight to be given it was a question for the jury, in view of all the other circumstances and evidence in the case.
“It is further contended that the evidence as to the comparison of photographs of the finger marks on the railing with the enlarged finger prints of plaintiff in error was improperly admitted. No question is raised as to the accuracy of the photographic exhibits, the method of identifying the photographs, the taking of the finger prints of the plaintiff in error, or the correctness of the enlargements, as shown by the exhibits introduced in evidence. It is earnestly insisted, however, that this class of testimony is not admissible under the common-law rules of evidence, and as there is no statute in this state authorizing it, the court should have refused to permit its introduction. No case in which this question has been raised has been cited in the briefs, and we find no statute or decisions touching the point in this country. This class of evidence is admitted in Great Britain. In 1909 the Court of Criminal Appeals held that finger prints might be received in evidence, and refused to interfere with a conviction below, though this evidence was the sole ground of identification. In re Castleton’s Case, 3 Crim. App. 74. While the courts of this country do not appear to have had occasion to pass on the question, standard authorities on scientific subjects discuss the use of finger prints as a system of identification; concluding that experience has shown it to be reliable. 10 Eincy. Brittannica (11th Ed.) 376; 5 Nelson’s Ency. 28. See, also, Gross’ Crim. Investigation (Adams’ Transl.) Osborn’s Questioned Documents, 479. Those authorities state that this system of identification is of very ancient origin, having been used in Egypt when the impression of the monarch’s thumb was used as his sign manual; that it has been used in the courts of India for many years, and more recently in the courts of several European countries ; that in recent years its use has become very general by the police departments of the large cities of this country and Europe; that the great success of the system in England, where it has been used since 1891 in thousands of cases without error, caused the sending of an investigating commission from the United States, on whose favorable report a bureau was established by the United States government in the war and other departments. * * *
“When photography was first introduced, it was seriously questioned whether pictures thus created could properly be introduced in evidence, but this method of proof, as well as by means of X-rays and the microscope, is now admitted without question. Wharton on Grim. Evidence (8th Ed.) § 544; 1 Wigmore on Evidence, § 795; Rogers on Expert Testimony (2d Ed.) § 140; Jones on Evidence (2d Ed.) § 681. We are disposed to hold from the evidence of the four witnesses who testified, and from the writings we have referred to on this subject, that there is a scientific basis for the system of finger print identification, and that the courts are justified in admitting this class of evidence; that this method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it. Such evidence may or may not be of independent strength, but it is admissible, the same as other proof, as tending_ to make out a case. If inferences as to the identity, of persons based on the voice, the appearance, or age are admissible, why does not this record justify the admission of this finger print testimony under common-law rules of evidence? The general rule is that whatever tends to prove any material fact is relevant and competent. People v. Gray, 251 Ill. 431, 96 N. E. 268; Thayer’s Prelim. Treatise on Evidence at Common Law (1898 Ed.) 266. Testimony as to footprints has frequently been held admissible. Wharton on Grim. Evidence (8th Ed.) § 796; 1 Wigmore on Evidence, § 413; State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648, and note. In Carlton v. People, 150 Ill. 181, 37 N. E. 244, 41 Am. St. Rep. 346, on a trial for arson, evidence of footprints near or leading to a barn and their correspondence with the feet of the accused was held competent. It was also proved that the accused was lame and walked with a kind of hop, and that the foot he limped on corresponded to the irregular tracks in the field. See Jones on Evidence (2d Ed.) § 400; 1 Wigmore on Evidence, § 660, and note 2; State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, and note; Commonwealth v. Pope, 103 Mass. 440.
“It is further insisted, as we understand the briefs and oral argument, that expert testimony on this subject was not permissible. Expert testimony is admissible when the subject-matter of the inquiry is of such a character that only persons of skill and experience in it are capable of forming a correct judgment as to any facts connected therewith. Yarber v. Chicago & Alton Railway Co., 235 Ill. 589, 85 N. E. 928. It is an elementary rule that, where the court or jury can make their own deductions, they shall not be made by those testifying. Evans v. People, 12 Mich. 27. Expert evidence is not confined to classed and specified professions, but is applicable wherever peculiar skill and judgment applied to a particular subject are required to explain results or to trace them to their causes. McFadden v. Murdock, 1 Ir. Rep. 867, C. L. 211. Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions, founded on such knowledge or experience, an aid to the court or jury in determining the questions at issue. Taylor v. Monroe, 43 Conn. 36; Ellingwood v. Bragg, 52 N. H. 488; Rogers on Expert Testimony (2d Ed.) § 6; 1 Greenleaf on Evidence (Lewis’ Ed.) § 280, and authorities cited. '
“From the evidence in this record we are disposed to hold that the classification of finger print impressions and their method of identification is a science requiring study. While some of the reasons which guide an expert to his conclusions are such as may be weighed by any intelligent person with good eyesight from such exhibits as we have hex-e in the record, after being pointed out to him by one versed in the study of finger prints, the evidence in question does not come within the common experience of all men of common education in the oi'dinary walks of life, and therefore the court and jury were properly aided by witnesses of peculiar and special experience on this subject.”

We conclude that the evidence of the witness was admissible.

Such other questions as are likely to arise upon another trial, if one should be had, have been examined and found not to present reversible error.

For the reasons detailed hereinabove, the judgment of the lower court is reversed, and the cause remanded.
      ®=5ffor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    LIGGON v. STATE.
    (No. 4808.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Homicide <&wkey;354— Circumstances — Death Penalty.

    In a trial for murder arising out of a sudden quarrel, evidence held not to justify a death penalty conviction.
    2. Criminal Daw «&wkey;855(4) — Trial — Mob Influence — Reversal.
    In the trial of defendant, a negro, for the murder of a coworker, a white man, it appeared that defendant had been hunted by several hundred people who expressed their intention of lynching him; that the mob demanded that a grand jury should reconvene, and threatened to lynch him if he were not immediately indicted, tried, qnd executed; that his counsel was appointed only the evening before the trial; that he was advised to go at once to trial; that he did not move for a change of venue and waived his right to a special venire because of a fear of mob violence; that a large crowd assembled around and in the courthouse, and in the view of the jury while it was deliberating; that the sheriff attempting to take defendant away was ¡pursued and compelled to return; and that defendant was required to make an immediate motion for new trial. Bill of Rights, §§ 10, 15, guarantee a fair trial by an impartial jury, and that the right of trial by jury shall remain inviolate. Held, that defendant did not have a fair trial, and that his conviction would be reversed.
    S. Criminal Daw <&wkey;868 — Right to Fair Jury Trial — Waiver.
    Defendant could not be held to have waived nuy right guaranteed him by the law, where, unless he waived it, he would have met death by lynching at the hands of the mob.
    Appeal from District Court, Cherokee County; D. D.. Guinn, Judge.
    O. T. Diggon was convicted ol murder, and he appeals.
    Reversed and remanded.
    M. D. Defier, of Jacksonville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the murder of Melvin Mayfield, and given the death penalty.

Briefly stated, the evidence is to the effect that appellant and a white man were doing certain work at a lumber mill, and three other white men were doing work at another part, but near each other. Appellant and his coworker were using what they called a dolly. This was economized for the purpose, it seems, of moving lumber into a place where they were preparing it for some given purpose. This dolly was unloaded by defendant and his coworker, and the other three white men came and took it away. When appellant had occasion to use it he discovered it uvas gone, and finally found it in the possession of the three white men, and sought to obtain it to be used in his allotted work. This was refused, and the trouble ensued. There was an issue as to how the trouble began. A piece of wood was used in the trouble, otherwise it seems to have been a fist fight, with three white men against the negro, who is the defend¿nt. As natural under such circumstances, he got the worst of the fight. Quoting the language of Mr. Truly, who was foreman of the shipping department of the mill:

“I was acquainted with Archie Mayfield and Melvin Mayfield and Clinton Pace and Devy Jordan, and all of these parties in this mix-up : they were working for me there. I was acquainted with the defendant then; his name is O. T. Diggon, and he was working at the mill at that time. I know Joe Sessions and Mr. Palmer, but he just' worked part of that morning, and I wouldn’t know him if I were to see him likely. I think I can tell about this trouble down there on the morning of the 7th. I was coming around the north end of the shed or mill there, or the planer, rather, and I saw one of the white boys run with a stick in his hand in this position (showing in a striking position). I couldn’t tell who he was, or which one it was, and I saw him strike with it, and I knew he was striking at something. I thought he was striking at a large rattlesnake that had been seen in the yard, and I broke and run to where they were, and when I got there they were striking this negro, and the three white boys were fighting him.”

This much of the testimony is brought out to show that it was a sudden quarrel and fight and the condition of the fight as shown by a disinterested witness, Mr. Truly. Melvin Mayfield, if he was in the fight, about which there is some issue, went to a car, and appellant, testifying to the fact that he was trying to escape, ran- in' the car, and while in there he struck Melvin Mayfield with a piece of timber, which resulted in his death. The state’s contention was' that there was no occasion for his striking Mayfield. His contention and testimony was to the effect that Mayfield had drawn a large piece of timber on him, and was in the act of striking him when he struck in self-defense. Without going further into details this evidence will not justify, under any viewpoint, a death i penalty conviction.

One of the most serious questions is brought forward in the motion for new trial and manifested by bills of exception, to wit, that the conviction occurred in a court surrounded and dominated by mob influence. At the risk of being prolix, it is thought necessary to give some of the salient features of the action of the mob that surrounded the court and the trial of the case. The motion for new trial is very full, and sets out in detail the action of the mob, and these grounds of the motions are referred to and verified in the bills of exception.

Bill of exceptions No. 1 recites that on the 7th da'y of August, 1917, Melvin Mayfield, a white man, was killed near Alto, Cherokee county; that appellant was accused of this killing, and immediately following the killing a large number of white men came running toward the scene of the trouble; that defendant, fearing violence at the hands of the white men, ran into the woods, and was not found until the next day, August 8th; that several hundred people of Alto and other parts of Cherokee county were hunting defendant Tuesday, Tuesday night, and Wednesday ; that feeling among said mob of people was very high against defendant, and they freely expressed their intention of lynching defendant should they be able to find him; that defendant was captured and taken into custody by the sheriff of Cherokee county on Wednesday, August 8th, and taken to the county jail; that defendant was captured and landed in jail without the knowledge of the mob; that said mob demanded that the grand jury of Cherokee county, which was not then in session, be reconvened on Thursday, August 9th, and said defendant indicted, tried, and executed at once; that said mob was threatening to lynch defendant if he were not immediately indicted, tried, and executed; that the grand jury was reconvened on Friday, August 10th, and indicted appellant on August 10th for the murder of Melvin Mayfield; that defendant’s counsel who were appointed by the honorable district court only the evening before to represent defendant had not time to investigate said cause and prepare for trial, as set out in paragraph No. 1 of his motion for a new trial; that at the time the grand jury brought in said indictment the crowd of people that had gathered about the courthouse was not very large, and defendant was advised that it would be better for him to waive his two days after indictment and be tried before a large crowd could gather; that defendant, fearing that if the mob should assemble before his trial was concluded he would be lynched, waived his two days allowed him by law and announced ready for trial, as set out in his motion for new trial; that during the progress of said trial several hundred people from in and around Alto and several other places in Cherokee county, crowded into the courtroom, where said case was being tried; that said crowd of people was composed of the same individuals that had been hunting for defendant before he was taken into custody, and that were threatening to lynch defendant; that the feeling of said crowd of people was very intense; that their resentment and prejudice against defendant was very great, which was manifest in their demeanor; that the defendant through fear of violence at the hands of said mob of people, fearing that they would execute the threats they had made to lynch, did not in open court object to the attitude, conduct, and demeanor of said mob previous to nor during the trial of said case, but did object to said attitude, conduct, and demeanor of said mob in paragraphs Nos. 1 and 2 of his motion for new trial, which was by the court overruled, to which decision the defendant excepted. This bill is signed by the trial judge without qualification or explanation or statement of any kind.

The second bill recites that after the evidence had been introduced and the case closed about 6 o’clock p. m., August 10, 1917, a large crowd of people from in and near Alto, the place of the killing, were crowded into the courtroom; that the honorable district judge trying said case, fearing violence to defendant if said crowd of people remained to hear the argument of counsel in said case, announced publicly that the court would adjourn until 8:30 a. m. the next day, August 11th; that said crowd of people left said courthouse and dispersed from the county seat; that said announcement was made for the purpose of clearing the courtroom of said crowd of people; that about 8 o’clock p. m., August 10th, the judge recalled the jury in the case, reconvened the court, and informed counsel for state and defendant to proceed with the argument in the case; that said arguments were concluded, the charge of the court read, and the case turned over to the jury at about 11 o’clock p. m., August 10th; that the jury did not bring in a verdict that night; that early the next morning, while the jury was deliberating upon their verdict, a large crowd began to assemble about the courthouse square and stationed themselves on the southwest corner of said square in plain view of the jury who were lodged in a room in the southwest corner of the courthouse; that before the jury had reached a verdict in said case a large mob had assembled and were conducting themselves in an angry and threatening manner; that their conduct and demeanor was such as to attract the attention of the jury in this ease and affect them in arriving at a fair and impartial verdict, as set out in paragraph No. 3 of defendant’s motion for a new trial; that the jury reached a verdict some time before noon of the 11th day of August; that the court attempted to have the jury taken to the penitentiary, which was located several blocks from the courthouse, where the defendant had been removed by the officers, as it was considered a safer place to keep defendant, and there receive the verdict of the jury; that said plans miscarried; that said mob was growing impatient at the delay in receiving a verdict from the jury, and was manifesting a threatening attitude; that before the jury had returned its verdict into court the sheriff, fearing violence at the hands of the mob, attempted to speed the defendant out of the county and lodge him elsewhere for safe-keeping; that a part of said mob secured several automobiles and overtook the officers charged with the custody of the defendant and compelled them to return to the courthouse with defendant; that said officers had gotten ope mile north of the town of Jacksonville, Tex., or 16 miles from Rusk, where the trial was had and where the defendant had been in jail, when the mob overtook them and compelled them to return; that said mob crowded around the officers in charge of the defendant in plain view of the jury, who, although they had announced some time before that they were ready to report, had not returned their verdict into court, as set out in defendant’s motion for new trial, paragraph No. 3; that defendant was brought into open court, the jury called in and announced their verdict of guilty of murder as charged, and assessed his penalty at death; that when said penalty was read by the clerk of the court a burst of applause went up from said mob, and the honorable district court before whom said case was tried was compelled to repeatedly rap for order, and severely rebuked said mob by threatening to put them in jail, as set out in paragraph No. 3 of defendant’s motion for new trial; that defendant in paragraph No. 3 of his motion for a new trial objected to the conduct, demeanor, and attitude of said mob as set out above after the case had gone to the jury, in that it was such as to influence the jury in arriving at their verdict, said conduct, attitude, and demeanor of said mob occurring in plain view of the jury deliberating upon their verdict, which objection and motion for a new trial were overruled by the court, to which decision and ruling of the court defendant in open court excepted and tenders this his bill of exceptions. This bill was examined and signed by the trial judge without any statement whatever either of qualification or explanation.

Bill No. 3 recites that after the indictment was returned on the 10th of August, that on said 10th and 11th of August he was tried for said murder and convicted and sentenced to hang; that previous to his arrest he was hunted by a mob of several hundred people with a view of lynching the defendant if he were to be found; that the sheriff of Cherokee county captured said defendant, unknown to the mob, and landed him in jail; that said mob demanded an immediate trial, conviction, and execution; that said demands of said mob were communicated to the defendant; that for fear the mob would execute its threats, defendant waived his two days after indictment, his motion for a change of venue, his right to have a special venire summoned in his case, and announced ready for trial; that defendant’s counsel, who had been appointed to represent defendant only a few hours before and had not had time to investigate said case, fearing for the life of said defendant, agreed to said waivers and announced ready for trial; that said matters were called to the attention of the court in defendant’s motion for a new trial in paragraphs Nos. 1, 2, and 3; that said motion was overruled by the court and exception taken, and the court approves this bill without any statement, qualification, or explanation.

Bill No. 4 recites that after the jury had returned its verdict into court, in which they found appellant guilty and assessed the death penalty, that defendant and his counsel were told by the court that if they expected to file a motion for a new trial they must do so at once; that the court feared the mob which was threatening to lynch the defendant would execute its threats if defendant remained in the county the two days, which defendant had in which to file this motion for a new trial; that said motion must be made and passed on and defendant sent to a place of safety at once; that defendant fearing the mob did not in open court object to making his motion for a new trial on August 11th, and did not ask for the two days allowed defendant by law for filing a motion for a new trial. The court ordered said motion to be filed and disposed of at once, to which decision and order of the court defendant then in open court excepted. This bill is also signed by the trial judge without any statement, qualification, or explanation.

Another bill of exceptions was reserved to the overruling of the motion for new trial.

The bills are hardly as full in detail as were the grounds of the motion for a new trial. Without stating fully the grounds of the motion, some of these statements will be noted. After the sheriff of the county had placed defendant in jail a mob threatened to hang and kill him regardless of law if he was not hung by the verdict of the jury; that a mob had threatened before the trial of the case that if a change of venue was granted, they would hang and lynch defendant; that if the defendant received less than a death penalty they would hang him at once; that if his case was continued or if he was granted a new trial they would hang him at once; that at all times after defendant was lodged in jail guards and spies were stationed by the mob at several places in the various parts of the county and guards were kept around and near said jail to watch and give notice of any attempt to remove the defendant from said county jail; that on all occasions when said defendant was in the courthouse being tried the mob was present and determined to have its wishes carried out; that the feeling was so intense and the threats so strong and the prejudice1 so great, against defendant that no man would risk his life by making an affidavit for change of venue in this case; that defendant’s attorneys who were appointed by the court to defend him asked the court to change the venue on his own motion, which the court refused to do because it would at once precipitate an attack by the mob upon the defendant, which he desired to avoid; that defendant, having been in jail continuously since August 8th, was not ready for trial, had not summoned any witnesses in his behalf, and his attorneys, who had been appointed by the court only the evening before the trial, could not interview the defendant until the next morning about 9:30; that defendant and his attorneys were compelled to waive the two days after service of copy of indictment, to announce ready for trial and go into the trial on the day that the indictment was found and returned, because as defendant and his attorneys well knew and had been told by a large number of citizens that if he did not announce ready for trial and in fact go into the trial of said case at once, that the mob would hang and kill the defendant, and he knew that they intended to do it, which facts were known to the trial judge.

Among other things, in the second ground of the motion for new trial it is stated that the mob in and around the courthouse demanded a speedy and immediate trial for defendant which he was compelled to accept, and he was compelled to accept a special ve-nire which had been called in another case then pending in said court, which facts were known to the trial judge.

In the third ground of the motion for new trial it is stated that the jury, after retiring to consider of their verdict, was lodged in the jury room in the southwest corner of the courthouse; that several windows opened to the south and several windows opened to the west in said jury room; that the mob demanding the death penalty was located on the southwest corner of the public square of said courthouse; that the jury could see the conduct and demeanor of said mob ; that the conduct and demeanor of said mob was such as to attract the attention of the jury in this case and affect them in rendering a free and impartial verdict; that before the jury returned its verdict into court, the sheriff, fearing violence at the hands of said mob, attempted to speed the defendant out of Cherokee county and lodge him elsewhere for safe-keeping; that the mob overtook the officers charged with the custody of the defendant and compelled them to return to the courthouse with the defendant; that when they arrived at the courthouse with defendant, they stopped on the west side of the courthouse in plain view of the jury then deliberating upon their verdict; that said jury could see and hear the demands of said mob; that the mob crowded around the officers having custody of the defendant in plain view of the jury, and it was with difficulty that they were prevented from executing ,their threats; that said mob demanded that defendant be returned into court, and that the jury bring in a verdict assessing defendant’s punishment at death; that the jury thereafter brought in a verdict assessing the death penalty as is shown by the judgment of the court; that when said death penalty was read by the clerk of the district court a burst of applause went up from the mob, and the honorable district judge before whom the case was tried was compelled to repeatedly rap for order, and severely rebuked said mob by threatening to land them in jail, which facts were known to the trial judge.

The fourth ground of the motion for new trial is practically the same as one of the bills of exception, setting out the fact that defendant and his counsel were told and knew that if they made a motion for a new trial and obtained a new trial, that the defendant would be taken out by the mob and lynched; that the defendant and his counsel were compelled to present this motion for a new trial on the same day that the verdict was returned; that defendant and counsel did not have time to investigate the case and things pertaining to other material facts upon which to base a motion for new trial because the mob was demanding that defendant be sentenced at once; that defendant was prevented from taking advantage of the legal procedure incident to the trial and its preliminaries, fearing at all times that the mob would execute its threats and carry out its determination. These facts were known to the trial judge.

The fifth ground recites that the jury was prejudiced against the defendant, a negro, for killing deceased, a white man; that such prejudice against defendant having been excited and strengthened by the presence, assembling, movements, and activities of the mob in and about the courthouse before and during the trial and while the jury were retired considering the case and before they returned their verdict into court. All of these facts were known to the trial judge.

These statements are rather prolix, or at least at length, but it is deemed necessary to so state to show the environments of this trial and the condition of things surrounding it. It would be an absurdity to hold that this appellant has had a fair trial under the circumstances stated. On the motion for a new trial these facts were not controverted by the state. They were admitted to be true by the approbation of the trial judge. They came under hi-s observation, and to this he certifies in approving the bills of exception. It has always been the pride, boast, and glory of the Anglo-Saxon jurisprudence, whether in England or America, that the accused should have a fair trial by an impartial jury. This is guaranteed by section 10 of the Bill of Rights. The fifteenth section of the same Bill of Rights guarantees that the right of trial by such jury shall remain inviolate. Our Legislature has seen proper in its wisdom to guarantee and surround and guard this provision of the Constitution. The essence of all criminal trials wherever this basic principle is found is the right of trial by jury.

“An impartial jury and a fair trial is what the state demands, and in her demands she is no respecter of persons. She has one law for all— the high and the low, the rich and the poor, the friendless, the most debased and hardened of criminals. The greater and more horrible the crime charged the greater and more imperative the necessity that these safeguards — these landmarks of the law — should be constantly looked to and kept steadily in view, lest, perchance, they should be forgotten, denied or ignored in those natural promptings of a manly, it may be, and certainly a human, instinct, which, standing appalled and outraged at the very contemplation of such heinous iniquity, condemned the suspected criminal in advance, and mainly, perhaps, through the magnitude and turpitude of his imputed crime. In such cases, when the popular mind is inflamed and popular indignation is ready and clamorous to become the executioner of' its own vengeance; it is the part of an honest, fearless, manly judiciary to uphold the standard of the law, and to vindicate its majesty and integrity regardless of all consequences.” Steagald v. State, 22 Tex. App. 496, 3 S. W. 781.

The testimony in this case does not show one of those appalling or heinous crimes. It may be fully questioned, if not maintained, that the defendant was not the aggressive party in the sudden affray which came up as heretofore indicated by the testimony. There is nothing about the case or its facts to attract the attention of heinousness. It was one of those unfortunate things that sometimes occur, but there was nothing to indicate enormity of circumstances or such malice which characterize murder justifying or requiring a death penalty. It was a sudden quarrel coming up in a moment, unexpectedly and unattended by any evidence of atrocity or heinous facts. Appellant might have applied for a change of venue, but the facts justified his failure so to do. As was said by Judge Hurt in his opinion in Massey v. State, 31 Tex. Cr. R. 381, 20 S. W. 761:

“Appellant was not required to apply for a change of venue, when, if granted, his life would be forfeited — the price. To hold that a trial under such circumstances was fair, impartial, and legal, would be a travesty on decency, law, common sense, and justice, notwithstanding good men may have tried appellant.”

And in looking at the facts stated in the motion for new trial and approved in bills of exception, we find that the judge was cognizant of all these matters, and in this as in the Massey Case, supra, really gave as his reason for not changing the venue that to do so would at once precipitate on attack upon the court or rather the defendant in the presence of the court and during his trial, and lynch him. To quote from Judge I-Iurt’s opinion in the Massey Case further:

“Such a state of affaii-s existing, if true, the court being environed and dominated by such a mob, breathing out such threats to the life of appellant, it is solemn mockery to talk, think, or imagine a fair trial under such conditions.”

Under such facts as are in this record appellant could not be held to waive any right that was guaranteed him by law, which if he did not waive would be met by death by lynching at the hands of the mob. Appellant has not had a fair and impartial trial. He has not even had a legal trial, and if he were as guilty as it is possible for a man to be of a violation of the law, yet he still is entitled to have a fair trial before an impartial jury, and in a court unawed by mob violence, but he should be surrounded by all the sanctity and safeguards guaranteed by our law. The officers in this case, it seems, so strenuously feared the action of the mob they undertook to spirit appellant away during the trial. He had a right to be present in court and under the protection of the law.

“It was his court, the court of every citizen of this state; its portals must be kept open, and no mob has a right to close them against a citizen who is being tried for his life, liberty, or property. He was deprived of this right by a mob, and not by the court, for the writer is impressed by this record with the belief that the ruling of the court in regard to the change of venue and motion for a new trial was made to save defendant from the vengeance of the mob.” Massey Case, supra.

Quoting from Calvin, a Slave, v. State, 25 Tex. 789:

“ ‘The accused must be tried and convicted legally, and though he be a negro, he must be tried in precisely the same manner as if he were a white man; and we cannot strain the law, even in the estimate of a hair, because appellant is a negro, or because of any unusual features of this case. In all civilized countries the law has always shown the most sacred regard for human life, and judicial tribunals in the administration of the criminal law have always deemed it proper to adhere with great strictness to established rules, where life and liberty are concerned. If courts could feel themselves at liberty to depart from principle or established rules in order to hasten the punishment of even great offenders, such departures might result in the destruction of those safeguards which, in accordance with the genius of all free governments, have been provided for the life and liberty of men.’ ”

See, also, Faulkner v. State, 189 S. W. 1077.

The Massey Case, supra, in many of its aspects, viewed from the standpoint of the performances and eccentricities of the mob, is very much like the facts and the environments of this case. The cases are different, of course, on the facts as to the crime. That committed in the Massey Case was rape by a negro upon a white woman, which was calculated to and at least does arouse the passions of our white race. ‘ But whatever may be said, the defendant has not had a fan-trial from any possible view of it, and of this there is no question, not even an issue or controversy manifested by the motion for new trial or the statement of facts occurring with reference to the mob and verified and approved by the trial judge as to all details, facts, and circumstances. Without discussing these matters further this judgment will be reversed, and the cause remanded for a trial in accordance with the rules of law and the guaranteed rights under our Constitution and laws.

The judgment is reversed, and the cause remanded.
      i&wkey;;I\:>i utter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte MOORE.
    (No. 4882.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Appeal from District Court, .Smith County; J. R. Warren, Judge.
    J. W. Moore, being charged with rape, was denied hail, and applied for writ of habeas corpus.
    Judgment reversed and bail granted.
    Jones & Jones, of Kerrville, and Simpson, Easseter & Gentry, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Relator applied for a writ of habeas corpus, and on the hearing was refused bail under a charge of rape.

The only contention before the court is the sufficiency of the evidence to justify such refusal of bail. It is unnecessary to discuss the evidence. A careful review of it, however, convinces us that relator is entitled to bail, and that the trial court erred in refusing it. The judgment therefore will be reversed and bail granted in the sum of $3,000. -Upon the giving of proper bond, to be approved by the officer who holds relator in custody, he will be discharged.

The judgment is reversed and bail granted.


author: HALL, J.

text:
    GODSHALK v. MARTIN et ux.
    (No. 1279.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 23, 1918.)
    1. Judgment <&wkey;460(6) — Equitable Relief —Showing of Meritorious Defense.
    In a suit to vacate a judgment for want of service of process, where the return of service and a recital in the judgment showed service, facts constituting a meritorious defense to the original cause of action should have been alleged.
    2. Judgment <&wkey;17(l) — Validity—Necessity of Process.
    A judgment rendered without service of process is void, though the return shows legal service, and the judgment recites legal service, whether or not plaintiff was guilty of fraud or collusion in procuring a false return.
    3. Limitation of Actions <&wkey;39 (7) — Limitations Applicable — Vacation of Judgment.
    The statute of limitations of four years applied to a suit to vacate a judgment for want of service of process.
    4. Limitation of Actions i&wkey;195(l), 199(1) — Commencement of Action — Presumptions — Questions fob Jury.
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1812, providing that civil suits are commenced by filing a petition in the office of the clerk of the court, where plaintiff filed his petition within the period of limitation, it could not be presumed, because the citation was not issued and served within a reasonable time, that he was guilty of such laches as made the statute of limitations apply; this being a question of fact for the jury.
    5. Process <&wkey;149 — Return of Service — Impeachment.
    In a suit to vacate a judgment, plaintiff’s testimony that he was not served with process and the testimony of his wife that she did not know whether he was served or not, but that on one occasion papers, the nature of which she did not know, were left for her husband in his absence, and that she told him about them, but she did not know whether he saw them or not, was insufficient to overcome the sheriff’s return of service, as a return regular upon its face cannot be impeached by the evidence of one witness unless there are strong, corroborative circumstances.
    6. Appeal and Error &wkey;>548(5) — Review-Necessity of Bill of Exceptions.
    An assignment of error based upon the introduction of evidence cannot be considered when not supported by a biB of exceptions.
    Appeal from District Court, Hartley County; Reese Tatum, Judge.
    Suit by J. P. Martin and wife against A. L. Godshalk. Prom a judgment vacating the judgment in a prior action, defendant appeals.
    Reversed, and remanded.
    Bailey & Richards, of Dalhart, for appellant. Arthur Schlofman and R. E. Stalcup, both of Dalhart, for appellees.
   HALL, J.

Appellant, Godshalk, filed suit in the district court of Hartley county, September 18, 1912, against J. P. Martin and wife, praying for judgment in the sum of $2,4'07.66 and to foreclose a vendor’s lien on certain land described in the petition. This suit was numbered 773 upon the district court docket. On February 25, 1913, after the notices to serve nonresident defendants had been returned into court, judgment by default was rendered for plaintiff in accordance with the prayer of the petition, and in due time order of sale was issued, the land was sold, and plaintiff became the purchaser at said sale. January 30, 1917, plaintiff, Godshalk, filed in said cause| his motion praying that a certain clerica' error in the record entry of said judgment be corrected, and after due notice of this motion to the defendants, an order was entered correcting said judgment. February 20, 1917, appel-lees, as plaintiffs in this action, filed their petition, praying that the former judgment in said cause No. 773 and as corrected be vacated and held for naught, alleging that the appellee, J. P. Martin, had never been served with citation or any other character of notice of said suit, and had made no appearance nor waived service of process therein. After hearing by the court without a jury, judgment was rendered setting aside the former judgment in cause No. 773, and opening same for further trial. To this action and judgment the appellant excepted, gave notice of appeal, and the matter is properly before us for review.

Tile first assignment of error is that the court erred, in overruling the defendant’s special exception, and in not requiring plaintiffs, Martin and wife, to allege facts constituting a meritorious defense to the original cause of action against them, in suit No. 773. The rulel in cases of this character, as announced by Judge Williams, in August Kern Barber Supply Co. v. Freeze et al., 96 Tex. 513, 74 S. W. 303, is:

“It has always been the rule that, when a judgment is sought to be reopened for any cause, in order to permit a defense to be made which the defendant was prevented from proving upon the trial in which the judgment was obtained, the nature of the defense must be shown to the court. It is true that in some of the cases in which this doctrine was applied the judgment was attacked because the party seeking injunction had not in fact been served, but this was not made to appear from the face of the record as in the cases first discussed, but was asserted upon evidence outside the record. In such cases the rule, at least with reference to domestic judgments of the superior courts, is that the record is conclusive evidence of the fact of service, and the judgment cannot be attacked collaterally upon evidence aliunde, but only by direct proceeding to set it aside and let in defenses. To this class of cases the rule that the party seeking equitable relief must show meritorious defense to the cause of action, in order to obtain the intervention of equity, has been applied, whether properly or not, may admit of differences of opinion.”

The case before us is one in which, from the return on the notice to serve nonresident defendants, and from the recital in the judgment, it appears that Martin was duly served. As said by Hodges, J., in Walker v. Chatterton et al., 192 S. W. 1085:

“When the record discloses that the judgment attacked is .valid upon its face, it devolves upon the parties seeking its annulment to show, not only no service of citation or appearance, but that he has a good defense to the suit.”

After a review of the authorities, this court, through Mr. Justice Boyce, in Union Pacific Ry. Co. v. Miller, 192 S. W. 358, said:

“Some confusion at one time existed in the decisions of this state as to whether or not in this character of case it would be necessary for one seeking to enjoin a judgment alleged to be void to allege and prove that he had a meritorious defense to the original cause of action on which the judgment was rendered. Out of this confusion a rule of decision, based on a distinction between judgments where the invalidity appears from the face of the record and those where the invalidity is only made to appear by extrinsic evidence, has been evolved, which, is claimed, will reconcile the apparent conflict. Whether this distinction may with good reason be applied to this class of cases or not, it seems to have obtained recognition by the Supreme Court, and the rule based on this distinction seems to be now well settled. [Citing authorities.] The rule announced by these decisions may be stated thus: Where an injunction is sought against the execution of a judgment alleged to be void, it is not necessary to show a meritorious defense to the original cause of action in those cases where the invalidity of the judgment appears upon the face of the record; but, if extrinsic evidence is necessary to establish such invalidity, then it will be necessary for the plaintiff seeking the injunction to show a meritorious defense.”

This proceeding is a direct attack upon the judgment and comes within the rule announced in cases where it is sought to enjoin the judgments because of alleged invalidity. For the reasons stated we think the court erred in overruling the exception. San Bernardo Townsite Co. et al. v. Hocker, 176 S. W. 645; McCaulley v. Western National Bank, 173 S. W. 1001; Western Lumber Co. v. Chicago, Rock Island & Gulf Ry. Co., 180 S. W. 644.

The proposition urged under the second assignment of error is: The return upon the notice showing legal service and the judgment reciting legal service, unless it he shown that the plaintiff was guilty of fraud, connivance, or collusion, in procuring a false return, appellees should not prevail in this action. In our opinion, this proposition is not sound. If there was in fact no service, and sufficient proof is produced upon that issue, the judgment is void, whether or not plaintiff was guilty of fraud or collusion in procuring a false return. Without service the court acqirires no jurisdiction of the defendant, and can render no decree affecting his rights. Kempner et al. v. Jordan, 7 Tex. Civ. App. 275, 26 S. W. 870.

By the third assignment appellant raises the issue of limitation. As stated, the suit to set aside the judgment in cause No. 773 was filed February 20, 1917, four days prior to the expiration of the four-year period of limitation. It appears that process did not issue thereon until March 31, 1917, and was not served upon appellant until the 20th day of June, 1917, and that no evidence was offered upon the trial tending to explain the delay in the issuance and service of process after the petition was filed. The statute of four-year limitation applies to a proceeding of this character. Kimmell v. Edwards et al., 194 S. W. 168, and authorities there cited. Article 1812, Vernon’s Sayles’ Civil Statutes, provides that civil suits in the district and county courts are commenced by filing the petition in the office of the clerk of such court. Plaintiff having filed his petition in this case within the period of limitation, we cannot presume because the citation was not issued and served within a reasonable time that he was guilty of such laches as would make the statute of limitations apply. This has uniformly been held to be a question of fact for the jury. G., C. & S. F. Ry. Co. v. Flatt, 36 S. W. 1029; Panhandle & Santa Fé Ry. Co. et al. v. Hubbard, 190 S. W. 793. This issue having been determined by the trial judge against the appellant, we overrule the assignment.

By his fourth assignment appellant insists that the evidence is insufficient to impeach the officer’s return upon the notice to serve nonresident defendant. Martin himself testified that the sheriff’s return was false in that no personal service was made upon him. His wife, Mrs. Rachael Martin, upon this issue testified, in substance, as follows:

“I remember an occasion some time about the 2d of November, or approximately that date, when a gentleman came to our home during the absence of Mr. Martin and left some papers. He just drove up and asked if this was where Mr. Martin lived. I said, ‘Yes,’ and he said, ‘Here are some papers for Mr. Martin,’ and I said, ‘Mr. Martin is not at home,’ and he said, T will just leave them,’ and I laid them up, and when he came home the next day I told him where they were, but I am not sure — I don’t know whether he looked at them. I didn’t look at them. Whenever he came I called his attention to them. I don’t know what was in them. I never did find out what the papers were about. Mr. Martin always attended to his business affairs. Yes; I guess they were the same papers that Mr. Martin referred to in his testimony. Those were the only papers that were ever handed to me. * * * I didn’t know who that gentleman was. He never told me who he was. He didn’t tell me that there was papers or process in a suit of any kind; just said they was papers for Mr. Martin. I don’t know how many papers were contained in that package; never heard Mr. Martin speak about that. As far as I know, that was the only character of papers that was ever brought there in that suit. If any character of papers that were called citations or notices of process were ever served upon Mr. Martin in the suit that we have referred to, I didn’t know anything about it. I have no knowledge of it. Yes, sir; I have related to the court all that happened about the delivery of those papers. He didn’t tell me his name, and he didn’t make any inquiry about Mr. Martin’s initials, as to whether that was the Martin or not; never asked what Martin or anything about it; didn’t' try to identify Mr. Martin; didn’t ask if this was the Martin who came from Texas. * * * No, sir; I didn’t know that those papers related to this place; didn’t know a thing about it; never opened the papers; never looked at them. He never said anything about any papers being there for me. I told Mr. Martin where the papers were. I told him the papers were on the shelf, and he went and got them, I suppose. I could not swear that he got them, because I didn’t watch him. I suppose he did. I didn’t see him open them. I never afterwards saw the package, and I didn’t care for them. I might have seen the package after that, but didn’t have enough interest to look through them. I suppose the envelope was opened. I didn’t open it. I have no relations whatever up in that country [Missouri] ; didn’t know the man who brought the papers. * * * Mr. Martin didn’t mention to me that foreclosure proceedings had been started in Texas that I remember of. I cannot be positive about that. • * * I do not know whether there were two or one papers in this package; I don’t know a thing about it; don’t know whether Mr. Martin was served or not. Those papers were handed to me. I don’t know whether Mr. Martin was served or not. He never said anything about it; never said anything about those papers either.”

Sheriff Hawk, who made the return, did not testify. The default judgment recites thát the defendants were duly served, and the return made by Hawk is sufficient to show proper service, and is sworn to by him. No evidence except that of Martin himself was introduced to show that other process was not served upon him. The rule is established in this state that a return, regular upon its face, cannot be impeached by the evidence of one witness unless there are strong corroborative circumstances. It is clear that the testimony of Mrs. Martin does not tend to show that proper service was never made upon her husband. The substance of her evidence is that she knows nothing whatever about it. In the absence of some corroborative circumstance, we think the court erred in holding Martin had not been served. In support of the recital in the judgment we must presume that proper service was made and we sustain this assignment. Pierce-Fordyce Oil Ass’n v. Staley, 190 S. W. 814; Gallagher v. Teuscher, 186 S. W. 409.

We find a cross-assignment in the record by appellees, based upon the introduction of certain evidence, over appellees’ objections. This assignment is not supported by a bill of exceptions, and cannot be considered.

For the reasons stated, the judgment is reversed and remanded.

HUFF, O. J., not sitting, being absent in Austin, serving with committee of judges, passing on applications for writs of error.
      <§=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    CARVER v. WHEELER COUNTY.
    (No. 1237.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 9, 1918.)
    1. Officers <&wkey;4, 100(1) — Relation with Goveenment — Compensation.
    The relation between the holder of a public office and the government under which he holds is not that of employer and employé, and their respective rights are not to be determined by the rules of contracts of employment; so that the governing body, in the absence of inhibition by some superior law, may abolish the office or change the compensation thereof at any time, even during the term of office of the incumbent.
    2. Officers <&wkey;52 — Changing Compensation During “Term op Oeeice” — Statute.
    A county treasurer’s term of office did not begin before his election, within Rev. St. 1911, art. 7086, providing that the salaries of officers shall not be increased or diminished during the term of office of the officers entitled, though the political complexion of the county was so predominantly Democratic that the only real contest over the office occurred in the primaries.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Term of Office.]
    Appeal from District Court, Wheeler County ; W. R. Ewing, Judge.
    Suit by J. R. Carver against Wheeler County, Tex. From judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    J. B. Reynolds, of Wheeler, for appellant. M. M. Miller, of Wheeler, and J. B. Clark, of Shamrock, for appellee.
   BOYCE, J.

Appellant, J. R. Carver, brought this suit against Wheeler county, alleging: That in the July, 1914, primaries he received the nomination of the Democratic party for the office of county treasurer of Wheeler county, and was duly elected to said office at the general election in November following, and qualified thereafter and discharged the duties of said office. That on October IS, 1914, the commissioners’ court of Wheeler county made the following order:

“It is hereby ordered that the county treasurer of Wheeler county be, and he is hereby, allowed a commission of 1% per cent, on the receipts and disbursements instead of 2% per cent, heretofore paid.”

That pursuant to such order the county had paid plaintiff on the receipts and disbursements of the county’s moneys handled by him only the sum of 1% per cent, thereof. That in Wheeler county the great preponderance of the vote was Democratic, and the real contest for the office was in the Democratic primaries, and the nomination thereat was equivalent to an election. That plaintiff had given his time and expense to a canvass for election at said primaries, and that by his said nomination he was vested with the right to said office and its emoluments, and the said order was void because made after the accrual and vesting of his said right. That said order was also void because “it does not purport to fix or establish the future basis of compensation to be received by the officer named.”. Appellant sued for $684.90, the difference between the commission paid him on the basis of 1% per cent, on receipts and. disbursements and .the amount he would have been entitled to receive on a basis of 2% per cent, thereof. A general exception to this petition was sustained, and appellant complains of this action of the lower court on this appeal.

While the holder of a public office is vested with certain rights in reference thereto, being entitled to hold the same and receive the emoluments and compensations incident to the discharge of the duties of the office, and may defend his rights against others, yet the relation between the office holder and the government under which he holds office is not that of employer and employé, and their respective rights are not to be determined by the application of the general rules of contracts of employment. So that it is universally held that in the absence of some inhibition by some superior law, the governing body may abolish the office or change the compensation to be paid the office holder at. any time, even during the term of the office o'f an incumbent, provided, of course, the changed rate of compensation cannot be made to apply to services already rendered. Palestine v. West, 37 S. W. 783; Butler v. Commonwealth of Pennsylvania, 10 How. 402, 13 L. Ed. 472; Dillon on Municipal Corporations (5th Ed.) vol. 1, § 423, and note; 29 Cyc. pp. 1366, 1427. Now article 3873, R. S., provides that:

“The county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as follows: For receiving all moneys other than school funds, for the county, not exceeding 2% per cent., and not exceeding 2% per cent, for paying out the same,” etc.

The commissioners’ court, therefore, being by the statute referred to authorized to fix the compensation to be paid the county treasurer, would have the right to change this compensation at its discretion if the principles we have already announced are correct, provided there is no interdiction against such change, either in the Constitution or statutory law. The only provision we know of in the law of this state on this subject is contained in article 7086, R. S., as follows:

“The salaries of officers shall not be increased nor diminished during the term of office of the officers entitled thereto.”

We think it clear that appellant’s term of office could not be said to begin before his election, so that his case does not come within this provision of the statute. It was held in the case of Riggins v. Richards, 79 S. W. 84, that a change made after one’s election to an office and prior to his qualification was not made during his term of office within the meaning of this statute.

Under this holding it becomes unnecessary to determine whether the provisions of article 7086 will apply,'even to a change made by the commissioners’ court in the compensation to be paid the county treasurer during the term of his office. It was distinctly held in the case of Hill County v. Sauls, 134 S. W. 267, that a reduction made during the term of such office was valid. It seems to have been assumed in the cases of Montgomery County v. Talley, 169 S. W. 1141, and Bastrop County v. Hearn, 70 Tex. 563, 8 S. W. 302, that such an order during the term of office would be valid. These cases, however, do not attempt to discuss the question in connection with article 7086, R. S., and we do not decide whether these decisions and the decisions in the cases of Collingsworth County v. Myers, 35 S. W. 414, and Orr v. Davis, 9 Tex. Civ. App. 628, 30 S. W. 249, which ap-pellee contends present questions analogous to the one under consideration, would impel us to hold that article 7086 in no event applies to the compensation to be paid a county treasurer, as provided by the statutes.

The effect of the order was, we think, to fix 1% per cent, as the rate of commission to be thereafter paid the county treasurer of Wheeler county on receipts and disbursements and the order would continue in effect until some further order on the subject was entered. We therefore think the order was valid, and fixed the measure of appellant’s compensation, and the judgment will be affirmed.

HUFF, C. J., not sitting, being absent at Austin, serving with committee of judges considering applications for writ of error.
      igoohror other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    VELTMANN, County Judge, et al. v. SLATOR et al.
    (No. 6046.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.
    Rehearing Denied Feb. 6, 1918.)
    1. Counties t&wkey;196(3) — Taxation — Illegal TRANSFER OF FUNDS — INJUNCTION.
    As it would be unlawful to transfer taxes levied and collected for the public building and improvement fund to the general county fund, when that fund exhausted the constitutional limit, the transfer could be enjoined.
    2. Counties <&wkey;190(l) — Taxation — Purpose of Levy.
    That a levy of taxes in the guise of one fund, with the intent to use for another, which thereby would exceed the constitutional limit, is illegal and void, is settled by the doctrine of stare decisis.
    3. Counties &wkey;>190(2) — Taxation — Swelling General Fund — Legality.
    Where commissioners levied a tax for the building fund of a county, with the intent thereby to swell the general fund beyond the limit of 25 cents on $100, as provided by Const, art. 8, § 9, the levy was void.
    4. Counties <&wkey;196 (3)— Taxation — Enjoining Collection.
    The unlawful intent of the commissioners to transfer a tax levied for the county building fund to the general fund, thereby swelling the fund beyond the constitutional limit, was a material issue of fact, and the district judge had authority by virtue of his discretion to enjoin, the collection of the tax until such issue had been determined. •
    5. Counties &wkey;>196(7) — Taxpayers’ Suit-Petition — Sufficiency.
    The objection that the petition does not state the amount of tax that will be collected from complainants is met by the allegation that the assessed value of the property of one is $39,000, and the other $80,000.
    6. Counties <&wkey; 196(4) — Taxpayers’ Suit — Condition Precedent.
    Tender of all legal taxes was not a condition precedent to a taxpayer’s suit to restrain the collection of a levy for the public building and improvement fund, no part of which was legal.
    7. Counties <&wkey;196(6) — Taxpayers’ Sun>Necessary Parties.
    In a taxpayer’s suit to enjoin the payment of a monthly allowance to certain county officers, such officers were necessary parties.
    Appeal from District Court, Kinney County; Jeseph Jones, Judge.
    Suit by J. M. Slator and others against Joseph Veltmann, County Judge, and others. Judgment for complainants, and defendants appeal.
    Affirmed in part, and reversed in part.
    H. E. Veltmann, of Brackettville, and Lew-right & Douglas, of San Antonio, for appellants. Martin & Martin and L. Old, all of Uvalde, for appellees.
   SWEARINGEN, J.

J. M. Slator and Charles Gaebler, as taxpaying citizens of Kinney county, Tex., for themselves and all other like citizens who might desire to avail themselves of the proceedings instituted this suit against Joseph Veltmann, county judge of Kinney county, P. 1-1. Fritter, A. L. Cashell, A. M. Slator, and F. O. Long, the last four being county commissioners', the five constituting the commissioners’ court of Kinney county, Tex.; and against J. F. Ray, tax collector of Kinney county, Tex. The petition was to enjoin the commissioners’ court and the tax collector from collecting a tax levied, it was alleged, under the guise of a public building and improvement fund, amounting to 15 cents on each $100 worth of property in the county; the levy being for the real purpose of swelling the general fund beyond the limit of 25 cents on the $100 fixed by the Constitution, which 25 cents was also levied. The commissioners’ court and the tax collector, by their sworn answer, denied that the levy of 15 cents on the $100 of property was a guise to swell the general fund beyond the constitutional limit, but averred that the commissioners, in good faith, intended to use the Í5 cents for public buildings and improvements.

The court, in vacation, in a preliminary hearing upon the petition and answer, declining to hear testimony, ordered the tax collector not to collect the tax of 15 cents per $100 valuation levied for public building and improvement purposes in Kinney county for the year 1917, until further order of the court. The tax collector and the commissioners and county judge have all appealed from that order.

The contention is that the petition charged that the commissioners intended to make an illegal transfer of the taxes from the public building and improvement fund to the general fund after collection, and their remedy was to enjoin the transfer of funds, and not to enjoin the collection of a tax not forbidden by the Constitution. In other words, the contention urges that it was legal to levy and collect the 15 cents per hundred for public buildings and improvements in addition to the 25 cents per hundred for general purposes, and their levy and collection should not be enjoined. It was averred that no such diversion was contemplated; but, it is contended, even if such were the intention, the remedy would be to enjoin the unlawful transfer.

No doubt it would be unlawful to use the taxes levied and collected for the public building and improvements fund for the general fund, when that fund exhausted the constitutional limit. It is so held in Williams v. Carroll, 182 S. W. 30. The act of transfer being unlawful, it could have been enjoined.

However, so many decisions in Texas for so long have held that a levy of taxes in the guise of one fund, with the intent to use for another, which thereby exceeded the constitutional limit, is illegal and void, that the question may be said to be settled by the doctrine of stare decisis. Such a levy is void. Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321; Ault v. Hill Co., 111 S. W. 425; Ault v. Hill Co., 102 Tex. 335, 116 S. W. 359; Petty v. McReynolds, 157 S. W. 184. What makes suck a levy void is' the intent of the commissioners to swell the taxes for the general fund beyond the constitutional limit of 25 cents on the $100. Const, art. 8, §9.

The unlawful intent becomes the determining question of fact to be proven by the preponderance of evidence. Until this1 material issue of fact can be so determined, the district judge had the authority by virtue of the discretion vested in him to issue the order enjoining the collection of the illegally levied tax of 15 cents on the $100 for public buildings and improvements. Neither do the facts alleged herein tend to show that the judge abused his discretion by refusing to hear testimony. Lone Star Lodge v. Cole, 62 Tex. Civ. App. 500, 131 S. W. 1180. The objection that the petition does not state the amount of the tax that will be collected from the complainants is met by the allegations that the assessed value of the property of one of the complainants is $39,000, and the other $80,000. The contrary of the further objection that a few taxpayers had no right to enjoin the collection of the entire levy of 15 cents on the $100 for public buildings and improvements is held in the case of City of Houston v. Baker, 178 S. W. 820.

The further objection that this equitable procedure required, as a condition precedent, a tender of all legal taxes', is not pertinent to the case in hand, because the injunction asked is to restrain only the collection of those taxes illegally levied, which is the 15 cents on the $100 for the public buildings and improvement fund. No portion of this levy is admitted to be legal, but the entire levy for the public buildings and improvement fund is alleged to be void, and that is the only tax enjoined by the court. All taxes levied for all other purposes are admitted to be legal, and their collection is unrestrained.

The petition alleged other illegal acts on the part of the commissioners, and it was sought to enjoin them. These other alleged illegal acts were: (1) The commissioners paid, and would continue to pay, Romus Salmon $60 a month as jail guard at Spofford. (2) They paid, and would continue to pay, Ed Rritter the sum of $75 per month as deputy sheriff. (3) They paid, and would continue to pay, H. E. Veltmann, as county attorney, the sum of $60 a month. (4) They paid, and would continue to pay, $2 a day to a jail guard.

The court by its order, in addition to restraining the collection of the tax of 15 cents' on the $100 for public buildings and improvements, enjoined the payment to Romus Salmon and enjoined the payment of the $2 a day for jail guard in any manner except that designated by statute. No objection is made to the order in so far as it affects the payment of the $2 a day for jail guard, but that part of the order enjoining the payment to Romus Salmon is objected to. Inasmuch as 'Romus Salmon is the party most to be affected by the order, he was a necessary party to the suit, and since he was not made a party, we think the court had no authority to make' that portion of the order which enjoined payment to him. Orndorff v. McKee, 188 S. W. 432.

By cross-assignments those who were petitioners below, and are appellees here, contend that the court erred in refusing to enjoin the payment of $75 a month to Ed Fritter, and also in refusing to enjoin the payment of $60 a month to H. E. Veltmann. Neither Fritter nor Veltmann were parties to this suit, though their interests are directly affected, for which reason the court was without authority to enjoin their payment. Orndorff v. McKee, 188 S. W. 432; Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1180.

That part of the judgment referring to Romus Salmon is reversed and hereby set aside, and in all other respects the judgment is affirmed.
      <@=For othei' cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes