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

text:
    GALAN v. STATE.
    (No. 3507.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.
    Dissenting Opinion June 8, 1915.)
    1. Criminal Law <&wkey;1166% — Harmless Error — Qualifications of Jurors — Physical Capacity.
    On a criminal trial a juror stated that his hearing was not good, and that unless favorably situated he could not hear the testimony. He seemed to understand questions by the court, and stated that he could hear if placed near the witnesses, and the court informed counsel that if selected he would be placed in a favored position. Accused’s counsel challenged him peremptorily, and, having exhausted his peremptory challenges, claimed that R., an objectionable juror, was forced upon him. Held, that there was no error in overruling the objection to such juror, especially where it was not shown why R. was objectionable, and it was not even claimed that he was disqualified.
    [Ed. Note. — For other casesi see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. <&wkey; II661/2 J
    2. Criminal Law <&wkey; 1091 — Bills of Exception — Sufficiency.
    Bills of exceptions complaining of the admission of accused’s statement on the examining trial given through an interpreter because it did not correctly represent what accused stated did not show that the action of the court was erroneous, where neither the statement nor the substance thereof was copied into the bills.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;>1091.]
    3. Criminal Law cg=»539 — Evidence—Statement at Examining Trial.
    Accused’s statement on his examining trial given through an interpreter was not inadmissible merely because the interpreter or whoever wrote out the statement as given by the interpreter made a mistake in one particular, as the jury would hear the whole evidence as to the claimed mistake, and might disregard the statement in the particular shown to be a mistake.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. <&wkey;539.]
    4. Criminal Law &wkey;sll68 — Reception of Evidence — Receiving Evidence after Retirement of Jury.
    It was not reversible error to permit a witness to answer questions asked by the foreman of the jury after they had retired, where he testified to no new or additional fact, but testified precisely or substantially as previously testified by him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3124, 3125, 3129-3136, 3144: Dec. Dig. &wkey;>1168.]
    5. Criminal Law <&wkey;1091 — Bills of Exception — Sufficiency.
    The allegations of a bill of exceptions should be full and explicit, so that the matters presented may be comprehended without recourse to inferences, and so as to enable the court to fully understand all the facts upon which the correctness or error of the rulings depend, and otherwise they will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2S23, 2824, 2828-2S33, 2843, 2931-2933, 2943; Dec. Dig. &wkey;»1091J
    6. Criminal Law &wkey;>1091 — Bills of Exception — Sufficiency.
    A bill of exceptions must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence or facts to render intelligible the ruling excepted to, and cannot be aided either by a statement in reply to a motion for a new trial or by the statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. i&wkey;>1091.]
    7. Criminal Law c&wkey;im — Record — Conflicts Between Bill of Exceptions and Statement of Facts.
    A bill of exceptions controls even the statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. <&wkey;> 1111.]
    8. Criminal Law <&wkey;1092 — Bills of Exception-Sufficiency.
    The judge’s certificate to a bill of exceptions does not certify that the objections or grounds of objection in the bill are true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, 2919 Dec. Dig. &wkey;Jl092.]
    9. Criminal Law <&wkey;1091 — Bills of Exception — Sufficiency.
    Inferences will not he indulged to supply omissions in a bill of exceptions, nor will the court on appeal supply omissions, nor aid the bill by inferences or presumptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;Jl091.]

      10. Criminal Law <&wkey;1091 — Bills of Exception-Sufficiency.
    Objections not affirmatively mentioned in a bill of exceptions are deemed to have been waived.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 282S-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=1091.]
    11. Criminal Law <&wkey; 1091 — Bills of Exception — Sufficiency.
    A bill of exceptions to the admission of evidence simply stating the grounds of objection, but not stating as matters of fact the matters upon which the objections are predicated, is incomplete and insufficient.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2818, 2819, 2823, 2824, 2S2S-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=1091.]
    12. Criminal Law <&wkey;1091 — Bills of Exception — Sufficiency.
    A bill of exceptions recited that the district attorney in the presence of the jury-stated that he was willing for the jury to take with them a map drawn by a state’s witness and admitted tó be incorrect, and which had not been admitted in' evidence; that accused objected to the statement of the district attorney .as prejudicial and calculated to cause the jury to believe that he did not want them to have the map because it might bear witness or give evidence against him. Held, that the bill was insufficient to properly present the matter for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. <@=1091.]
    13. Criminal Law <&wkey;1171 — Misconduct of Prosecuting Attorney.
    As the jury was not permitted to take the map, the district attorney’s offer not having been accepted by either the court or accused, there was no reversible error, especially as the court, in qualifying the bill, expressly disapproved accused’s contention as to the effect of the remark on the jury.
    [Ed. Noto. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dee. Dig. <&wkey;> 1171.]
    14. Criminal Law <@=31111 — Bill of Exceptions — Qualification—Conclusiveness. Where accused accepted a bill of exceptions as qualified by the trial court, he was bound thereby.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2894-2896; see Criminal Dec. Dig. <@=
    15. Criminal Law <&wkey;1166% —Trial — Remarks of Court.
    Accused was being tried for homicide several miles from the jail where he was confined, and this fact was known to the court and all the officers and jurors serving on the case. The court, in adjourning until the following morning, stated in the presence of the jury that the sheriff might take accused “home, where he belonged.” Accused claimed that this remark was calculated to make the jury believe that the court thought accused should be in jail, but the court, in qualifying the bill of exceptions, did not approve this claim. Held, that the remark did not constitute reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dee. Dig. <@= 1166%.]
    16. Criminal Law <&wkey;826 — Trial—Requested Instructions — Time for Requests.
    Code Cr. Proe. 1911, arts. 735, 737, 743, as amended, and article 737a, as added, by Act April 5, 1913 (Acts 33d Leg. c. 138), provide that in felony cases before the charge is read accused shall have a reasonable time to examine it; that he shall present his objections in writing ; that counsel on both sides shall have a reasonable time to present written instructions; that the judge, after receiving such objections and special charges, may make such changes in his main charge as he may deem proper; that accused shall have the opportunity to present objections thereto; and that objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial. Held, that the refusal of instructions not presented until after the court had given his main charge could not be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. <@=3826.]
    17. Criminal Law <@=1091 — Bills of Exception — Sufficiency.
    A bill of exceptions stating that accused presented certain special charges which the court refused to give, to which ruling he then and there excepted, did not raise the question with respect to such refusal in such a way that it could be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2S28-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;1091.]
    Davidson, J., dissenting.
    Appeal from District Court, Atascosa County ; F. G. Chambliss, Judge.
    Pasqual Galan was convicted of murder, and he appeals.
    Affirmed.
    Geo. M. Martin, of Jourdanton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for the murder of Felix Sanchez, alleged to have been committed on March 14, 1914. He was tried in December, 1914, and convicted of murder. The lowest - penalty, five years in the penitentiary, was assessed against him.

In his first bill of exceptions he complains that the court erred in refusing to-sustain his objections to Wm. Blunt as a juror, and in holding Blunt qualified, causing him to peremptorily challenge him, and thereby forcing W. A. Reece, an objectionable juror, upon him; he having exhausted his-challenges before Reece was presented. The bill in no way shows how or why Reece was objectionable to him, nor that he was in any way even claimed to be disqualified. The bill-shows his cause for challenging Blunt was that upon his voir dire examination he declared his hearing was not good, and unless very favorably situated in the jury box he would not be able to hear the testimony of the witnesses from the witness stand, and at times there was a ringing in his ears, which at times affected his hearing quite materially ; that he was 59 years old, and never served as a juror but once before. In approving this bill the court'qualified it by stating:

“That the juror seemed to readily hear and understand any and all questions asked by the court, and the juror stated that if he was placed’ near the witnesses he could hear and understand what they (the witnesses) might state, and the court stated to counsel that in, case said juror was selected to serve on this jury he would be placed near the witness stand and in a favored position. The juror, spoken to by the court in an ordinary tone of voice, seemed to understand as well as the ordinary man.”

This bill shows no error. Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, and cases therein cited.

His next bill, No. 2, and his sixth, will be considered together. They are on the same subject and present the same question. They complain of the court’s action in permitting to be introduced in evidence his voluntary statement made by him at his examining trial before R. A. Terry, the justice of the peace, for the reason, stated in No. 2, that said statement made by him was in Spanish, he having no knowledge of the English language, and the same was interpreted into English by an interpreter whose knowledge of English was very imperfect, and that said interpreter testified under oath, when his qualifications as interpreter was tested before the court, that the voluntary statement as submitted to him did not speak the truth, in that the appellant is made to say that he said to the state’s witness Chon Sanchez at or near the stump where the difficulty began “that his (Chon Sanchez’s) mother could take out the stump,” whereas, in fact, he stated that Chon Sanchez told him that “his (the defendant’s) mother could take out the stump”; that defendant was not represented by counsel at the examining trial; and that he imperfectly understood the interpreter. In his sixth the reason stated is that it was not shown that he had been properly warned in the language which he understood, and said statement was not what defendant really said to the party writing down the same, it having been shown to be incorrect.

The court, in approving his bill No. 2, did so with this qualification:

“The defendant introduced the party who did the interpreting in the examining court, and on the examining trial of defendant, and he testified in defendant’s favor, and to some extent changed the meaning of record as stated by defendant in his voluntary statement, but it was not clearly shown that the interpreter was incompetent or misunderstood the statement of defendant as made at the time of the examining trial, but only stated his (the interpreter’s) recollection of the proceeding as he remembered same, it (the examining trial) having occurred about a year, or at least many months, prior to this final trial.”

In approving bill No. 6 the court did so with this qualification:

“The contention on the part of defendant was that he did not understand the interpretation as made, which contention was not established to the satisfaction of the court, and hence the foregoing conclusions inserted in this bill by counsel are not approved. The remainder of the bill is approved, and is ordered filed as a part of the record in this case.”

The statement which was introduced in evidence is not copied nor purported to be in either- of said bills, nor is the substan'ce of it given in either or both. Hence neither bill presents the question in such a way that we can detérmine that the action of the court was in any way erroneous. It will be seen that appellant’s objections are not approved as statements of facts by the judge, but the reverse of that seems to be true. Neither of the bills nor both show that the statement was not admissible. That the interpreter or whoever wrote out the statement as given by the interpreter might have made a mistake in one particular would not of itself render the statement inadmissible. The jury would hear the whole testimony as to any claimed mistake, and might disregard the statement in the particular shown to be a mistake, if so, yet all the balance of the statement might clearly be admissible. It might be that the evidence on the subject, as a whole, in connection with the statement, might make it appropriate for the court to instruct the jury as to what they could or could not consider; but no such complaint was made on the trial or now.

Omitting only the heading of appellant’s bill No. 3, which merely gives the style and number of the cause and the court and term, it is:

“Be it remembered that upon the trial of the above styled and numbered cause J. H. Winn, sheriff of Atascosa county, a witness for the state, was., at the request of the jury, and after the said jury had retired to consider of their verdict, permitted, over the objection of the defendant, to testify in response to questions of the foreman of the jury as to the distance where the hat was found from the Sanchez camp, if possible, the court failing to instruct the said witness to make his statement in the language used by him in his examination as nearly as he could, and in response to said question of said foreman the said witness proceeded to give testimony not previously given by him, and thereupon said witness testified as follows: Question by the foreman of the jury: ‘We want to know the distance from where the hat was found to the Sanchez camp?’ Answer: ‘It was about 150 yards; that’s it.’ Question: ‘Did you step it off or measure it?’ Answer: T guess it 50 or about 50 or 60 yards. Guesses at it, and part of it I measured. Found it beyond a cord of wood, about 50 or 60 yards; 50 or 60 yards from the Galan-Sanchez camp, I mean.’ To all of which said testimony the defendant then and there objected, for the reason that it was inadmissible for the witness to do more than repeat the language as nearly as he could, the evidence previously given by him, and because his testimony was new matter, and because the court had failed to instruct the said witness to make his statement to the jury in the language used by him in his examination as nearly as he could, because the said witness had testified in the case, and was only recalled at the request of the jury, and the court overruled the said objections of the defendant,'and permitted the witness to give the above testimony, and the defendant then and there excepted to all of said testimony, and now here tenders this, his bill of exceptions No. 3, and prays that the same may be signed and made a part of the record in this case, which is accordingly done, with the additional statement that witness stated the distance above mentioned to be 150 or 160 yards from where hat was found to Sanchez camp.
“F. G. Chambliss,
“Judge 56th Jud. Dist. of Texas.”

This bill was filed March 13, 1915.

The rules for the requisites of bills of exceptions in criminal cases have been so long and so well established that it seems it should be useless to again state them. They have been clearly and distinctly stated by a long and uniform line of decisions of this court. Judge White, so long a judge and presiding judge of this court, in his Ann. O. O. P. in 1900, states them, and collated the authorities up to that date in sections 807 to 862, inclusive, and in section 1123. In a large number of cases, too numerous to collate, but notably in James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112, and Best v. State, 164 S. W. 997, recently attention has been called to these rules, and the said sections of Judge White’s Annotated Procedure cited.

It occurs to us that no one could seriously contend that the above-copied bill complies with these rules or any of them to such an extent as this court can intelligently tell therefrom that any material or reversible error was committed by the trial judge. We stated specifially some of these rules in Best v. State, supra, and will here again copy them:

“(1) The allegations thereof should he full and explicit, so that the matters presented to the court on appeal for revision may be comprehended without recourse to inferences.
“(2) They should be so explicit as to enable the court on appeal to fully understand all the facts upon which the correctness or error of the rulings depend; otherwise they will not be considered.
“(3) It must set out the proceedings in the court below sufficiently to enable the court on appeal to know that an error has been committed. It must be so full in its statements that in and of itself it will disclose all that is necessary to manifest the supposed error, and must state enough of the evidence or facts proven to render intelligible the ruling excepted to.
“(4) It cannot be aided either by a statement in reply to a motion for new trial or by the statement of facts.
“(5) It controls even the statement of facts.
“(6) Objections or the mere statement of the ground of objection in the bill is not the certificate of the judge that what is stated is true; it is the mere objections of the party.
“(7) Inferences will not be indulged to supply omissions in them. Nor will the court on appeal supply omissions, nor aid the bills by inferences or presumption.
“(8) Objections not affirmatively mentioned in the bill are deemed to have been waived.
“ (9) A bill to the admission of evidence is incomplete and insufficient which simply states the grounds of objections to the errors, but fail to. state, as matters of fact, the matters upon which the objections were predicated.”

They are each and all applicable to this bill. The bill states that the court permitted the sheriff, over his objections, “to testify in response to questions of the foreman of the jury as to the distance where the hat was found from the Sanchez camp, if possible,” and then gives the question propounded by the foreman of the jury, asking that specific question and the answer to it that it was about 150 yards. We think it would be impossible from this whole bill, or said portion of it, or any other portion of it, to tell how or in, what possible way the question and answer could affect this case. No statement whatever- in the bill is made showing this. Tlie question is: What is the distance from where the hat was found to the Sanchez camp? What hat? Whose hat? What did the location of any hat relatively from the Sanchez camp, as this bill shows, have to do with any fact, material or otherwise, in this case? Absolutely none so far as the bill shows. As we understand the qualification of the judge to the bill, he stated that the sheriff on the trial of the case stated that said distance was 150 or 160 yards. The bill does not show, and we cannot understand from it, unless as thus explained by the judge, what the previous testimony of the witness on the trial was. Under the rules we are prohibited from going to the statement of facts for enlightenment for any purpose to explain, modify, or make certain this bill. If we could go to the statement of facts for any purpose in connection with the bill, then we could go to it for all purposes, whether to sustain the appellant in his objections or the court in his rulings. If we could go to the statement of facts or the record otherwise than the bill, then we would find that the sheriff testified in his previous testimony precisely or substantially the same thing without any question. So that in no contingency does this bill, or the ruling of the court shown thereby in connection therewith, show any reversible error.

Appellant’s next bill is to this effect: That while said witness Winn, the sheriff, was testifying, after being recalled by the jury, the district attorney stated to the court in the presence of the jury that he was willing for the jury to take the map drawn by the state’s witness Sanchez with them in their retirement; said map having been admitted by said witness Sanchez not to be a correct map or sketch, and said map not having been admitted in evidence. This is the substance in full of this bill, except what we now state. Following what we have given above, the bill then proceeds to state that he objected to the statement of the district attorney in the presence of the jury, for the reason that it “was highly prejudicial to the defendant, in this, that it was calculated to and did cause the jury to believe that the defendant did not want the jury to have said map or sketch, as the same might bear witness against said defendant, or in some manner give evidence against the defendant,” and that he requested the court to instruct the jury not to consider said statement by the district attorney, and the court refused this. The court, in approving the bill, did so “with the exceptions of the deductions drawn by counsel in preparing the bill.” This bill was filed March 13, 1915. The trial occurred, as stated, in December, 1914. What has been said about the insufficiency of bill No. 3 equally applies to this. The court in his qualification expressly excluded the deleterious deductions drawn by counsel in preparing the bill. As we understand, the offer of the district attorney that he was willing for the jury to take said map was not accepted by either the court or the appellant. The jury was not permitted to take the map under the district attorney’s expression of willingness that they should. The bill was merely to the fact that the district attorney stated to the trial judge in the hearing of the jury that he was willing for the jury to take the map with them. We cannot see how this would or could present any reversible error. As stated, the court expressly disapproved appellant’s contention of it having any bad effect on the jury. He accepted the bill as qualified, and is bound by it under all the decisions.

Appellant’s next bill, No. 5, shows this: That when the court was about to take a recess for the day until the following morning, in the presence and hearing of the jury he said:

“The court will now adjourn until tomorrow morning at 9 o’clock, and that the sheriff might take the defendant home, where he belonged.”

By this bill appellant then proceeds to claim that said remark of the court was calculated to make the jury believe, and it made them believe, that the court was of the opinion that the defendant should be in jail, for the reason that he was guilty of the offense for which he was being tried, and that said remark was an expression on the part of the court of his opinion of the case. The court, in allowing this bill, did so with this qualification:

“The court at adjourning time stated that the court would be at recess until the following morning, and stated to the sheriff that he might take the defendant home, where he belonged; the court, all officers and jurors serving on the case, knowing as a physical fact that the defendant was being tried at Jourdanton, Tex., and the jail or place where defendant was confined w'as at Pleasanton, Tex., a distance of some four miles, and the sheriff ivas obliged to transfer the defendant to and from the jail each day he was on trial. The deductions drawn and presented by the bill I do not approve. E. G. Chambliss,
“Judge 3Gth Hist, of Texas.”

As explained, this bill presents no reversible error. The court, as stated in the qualification, expressly did not approve the deductions and claim of what the jury could draw and understand therefrom.

The only other bill appellant has is his No. 7. It is very brief, and to this effect: That on the trial “the defendant presented to the court requested special charges Nos, 2 and 3, which the court refused to give,” to which ruling he then and there excepted, and now here tenders his bill of exceptions No. 7, and prays that the same be signed and made a part of the record, which is accordingly done. Signed by the judge.

During the trial appellant made no exception whatever to the charge of the court. The court’s charge was filed on December Sth. Evidently it was then read to the. jury. By his charge he properly defined and submitted to the jury murder and self-defense. He also gave a charge on manslaughter in the very language requested by appellant. His said charges 2 and 3 were in no way shown to have been presented to the judge prior to the time he charged the jury, nor does the record otherwise show that they were presented to him before he read his charge to the jury. The file mark thereon makes it evident that they were not presented to the judge for any action on his part until after he had given his main charge. Therefore, unquestionably, under Act April 5, 1913, p. 278, amending articles 735, 737, and 743 and adding article 737a to our Criminal Procedure, appellant has failed to raise or present this question so that we can review it. Ross v. State, 170 S. W. 305, and cases there cited. In addition to this, since then this court has so uniformly held in a large number of cases unnecessary to collate. In addition to this, it has been the uniform holding of this court, under said last articles cited of the Procedure, before amended, that appellant does not raise the question in a way that would authorize this court to review it. Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878, Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884, and Byrd v. State, 151 S. W. 1068, and the authorities cited in these several cases. A large number of other cases to the same effect could be cited but it is unnecessary.

We see no necessity at this time of detailing the testimony. All the questions raised can be properly passed upon, and are passed upon, without reciting any of the facts. We have carefully read and studied the statement of facts, and the charge of the court submits aptly and properly every question which was raised by the testimony.

The judgment is affirmed.

HARPER, J.

I concur in the affirmance of this case, not alone because the bills do not properly present the questions for review, but, if the bills presented the questions fully, when read in the light of the whole record, they or either of them do not present error.

DAVIDSON, J.

(dissenting). 1. This conviction was for murder. Manslaughter was in the case, and a partial charge on the subject was given the jury at the request of the appellant. The whole law of manslaughter was not charged. The question of cooling time was in the case from two standpoints. A charge submitting this was refused. This should have been given. Perhaps, technically, critically, it might not be the subject of review, inasmuch as appellant does not make it definitely appear that he asked the charge before the argument was begun. As I understand the statute, however, if the defendant has not had a fair trial on his case and the charges, the strict critical technicalities are not to be applied. I do not believe that the harsh technicalities of the law should be applied at any time to deprive an accused of a fair legal trial. The statute should be liberally construed to the end that he may have a-fair trial. O. C. P. arts. 25, 10, 4. The Constitution guarantees a fair trial by an impartial, jury, and anything that tends to-deprive him of this should be liberally construed in his favor to the end that his legal rights may be preserved. Guilt is the end to be ascertained. That means the real offense under the facts proved and appropriate' charges applied to every phase of the facts and issues presented by facts. ■ '

2. The question that I particularly desire to notice, however, is found in bill No. 3. That bill recites:

“J. H. Winn, sheriff of Atascosa county, a witness for the state, was, at the request of the jury, and after the said jury had retired to consider of their verdict, permitted, over the objection of the defendant, to testify in response to questions of the foreman of the jury as to the distance where the hat was found from the Sanchez camp, if possible, the court failing to instruct the said witness to make his statement in the language used by him in his examination as nearly as he could, and in response to said question of said foreman the said witness proceeded to give testimony not previously given by him, and thereupon said witness testified as follows: Question by the foreman of the jury: ‘We want to know the distance from where the hat was found to the Sanchez camp.’ Answer: ‘It was about 150 yards; that’s it.’ Question: ‘Did you step it off or measure it?’ Answer: T guess it 50 or about 50 or 60 yards. Guesses at it, and part of it I measured. Found it beyond a cord of wood, about 50 or 60 yards; 50 or 60 yaids from the Galan-Sanchez camp, I mean.’ To all of which said testimony the defendant then and there objected, for' the reason that it was inadmissible for the witness to do more than repeat the language as nearly as he could, the evidence previously given by him, and because his testimony was new matter, and because the court had failed to instruct the said witness to make his statement to the jury in the language used by him in his examination as nearly as he could, because the- said witness had testified in the case, and was only recalled at the request of the jury, and the court overruled _ the said objections of the defendant, and permitted the witness to give tho above testimony, and the defendant then and there excepted to all of said testimony, and now here tenders this his bill of exceptions No. 3, and prays that the same may be signed and made a part of the record in this case, which is accordingly done, with the additional statement that witness stated the distance above mentioned to be 150 or 160 yards from where hat was found to Sanchez camp.”

This bill, it will be observed, presents clearly, succinctly, and coherently that Winn, the sheriff, was recalled as a witness at the request of the jury after their retirement to consider of their verdict, and, over the defendant’s objections, was permitted to testify in response to questions of the foreman of the jury as to the distance the hat was found from the Sanchez camp, and the court failed to instruct the witness to make his statement in the language used by him in his examination on the trial as nearly as he could, and “in response to said questions of said foreman, the said witness proceeded to give testimony not previously given by him.” And then follows his testimony. This shows on its face this whole proceeding was in violation of the statute. The witness could not legally testify to anything on recall by the jury, except what he had previously stated, and that to be.in the language, as nearly as possible, delivered by him in the previous examination. The bill recites and sets out that the testimony was new matter, and makes it patent, that the court did not instruct the witness as to such matters as the statute requires. The court nowhere as to this contradicts or qualifies this bill of exceptions. His qualification is that the witness stated the distance to be “150 or 160 yards from where the hat was found to the Sanchez camp.” In his testimony set out in this bill he said 150, and subsequently said it was beyond a cord of wood, about 50 or 60 yards, and about 50 or 60 yards from the Galan-Sanchez camp. I do not understand how the bill of exceptions could be more plain on the question involved than this. We have two statutes with reference to the introduction of testimony outside of the regular trial examination. The first article referred to is article 718, G. C. P. of 1911. That statute is in the following language:

“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appear that it is necessary to a due administration of justice.”

This article has been held, and correctly, to be an exception to the general rule of hearing evidence, and fixes the limit of the discretionary powers of the court. Wherever it is deemed necessary to a due administration of justice, the court may admit evidence at any time before the conclusion of the argument, but not afterwards. See Williams v. State, 35 Tex. Cr. R. 183, 32 S. W. 893; Southerland v. State, 52 Tex. Cr. R. 425, 107 S. W. 349; Lorance v. State, 37 Tex. Cr. R. 453, 36 S. W. 93; Lockett v. State, 55 S. W. 336; White’s Ann. C. C. P. p. 490. Under this statute the court is prohibited from permitting the introduction of testimony after the close of the argument. Those who feel interested in the question may read with profit and entertainment the discussion of the question in Williams v. State, supra, as well as the other cases cited. This evidence was given before the jury after their retirement, and the bill of exceptions recites positively it was new evidence, and the court .does not controvert this. The only statement he makes is that the witness said it was about 150 or 160 yards from where the hat was found. The bill recites it was 150. His attention was called to the fact in the bill and at the time of the recall of the witness that the witness had not been cautioned, and was giving new testimony, and the court does not gainsay, qualify, or dispute this in the bill, but signs it. From the standpoint of the introduction of new testimony this was inadmissible, and error by the express terms of the statute. There is another article, however, 755 in the 1911 Revised Criminal Procedure, which reads as follows:

“If the jury disagree as to the statement of any particular witness, they may, upon applying to the court, have such witness again brought upon the stand; and he shall be directed by the judge to detail his testimony to the particular point of disagreement, and no other, and he shall be further instructed to make his statement in the language used in his examination as nearly as he can.”

This bill recites the jury had retired and came back and had the witness Winn recalled. He was not cautioned by the judge as to what he should testify, nor was the jury limited in their questions as to the testimony he had delivered on his original examination during the trial. This is all made patent on the face of the bill of exceptions. It is not controverted. It is further recited, emphatically, in the face of the bill of exceptions, not only that he gave additional and other testimony to what he testified originally, and the questions and answers are stated in the bill. Under this article, the court should have instructed him to detail his testimony only to the particular point of disagreement, and no other, and, further, that he should have been instructed to make such statement in the language used in his examination as nearly as he could. This bill of exceptions excludes the idea positively and certainly that the witness was so instructed. The court did not warn him or instruct him, and the court signs this bill of exceptions without qualifying or controverting those statements in the bill. This statute has often been construed, not only by this court, but by the Supreme Court, long before the creation or organization of the Court of Criminal Appeals.

In Campbell v. State, 42 Tex. 591, Judge Moore delivered the opinion and laid down these propositions:

“When a witness is permitted to be recalled at request of the jury who disagree as to his testimony, such witness should be required to repeat his testimony upon the point in dispute and in his words when previously testifying; it is error to allow a re-examination on that point. The provisions of the Code require: (1) The jury should indicate to the court the statement of the witness about which they disagree; (2) the witness should be brought upon the stand, and directed to detail his testimony in respect to this particular point, and no other; (3) the court shall instruct the witness to make his statement in the very words used in his original examination as nearly as he can.”

When that opinion was delivered the Supreme Court was composed of Chief Justice Roberts and Associate Justices Reeves, De-vine, Moore, and Gould. This was one of the great courts in the jurisprudence of Texas. Speaking of this, Judge Moore uses this language:

“Now, let us note what occurred in the court below. The jury came into court and requested permission to re-examine the witness, but do not appear to have indicated any particular statement of the witness about which they disagreed. And although the court says ‘he admonished the jury that the witness could only be interrogated in reference to testimony which he had previously given, and about which some of them were not satisfied, and when the interrogations were propounded to and answered by the witness, the court as well as the witness, considered his answers as an effort to reiterate what he previously attempted to convey to the minds of the jurors.’ ”

He further says:

“The information given the jury did not serve the purpose, and cannot be regarded as a substitute for the admonition to the witness. The jury were permitted to take upon themselves the office of examiners, and to make such inquiries as they desired, and that, too, of a most direct and leading character. The questions propounded to the witness had reference, no doubt, to matters about which he had testified, but certainly they were not of a character calculated to elicit a reiteration by the witness of his former statements, as nearly in the language in which it was made as he could give it.”

In the case quoted from it will be noticed that the trial court said that he admonished the jury that the witness could only be interrogated with reference to the testimony which he had previously given, and about which some of them were not satisfied, and that, when these inquiries were propounded and answered, the court, as well as the witness, considered his acts an effort to reiterate what he had previously attempted to convey to the minds of the jurors; yet, with all that in the record before the Supreme Court, they held it was not a sufficient compliance with the statute, and reversed the judgment. It did not comply with the statute, as was correctly held by the Supreme Court. If that was a failure to comply with the statute, what may be said of the failure in this case? The court made no attempt to instruct the witness, jurors, or anybody else, and he signed the bill stating positively that there was introduced new testimony. To the same effect is Tarver v. State, 43 Tex. 564. The headlines of that opinion is in this language:

“When a witness is re-examined at the request of the jury, after their retirement and return into court, the omission of the judge to direct the witness to confine his testimony to the particular point of disagreement, and to make his statement in the language used by him in his first examination as nearly as he can, will, when the witness, in the absence of such caution, has given additional evidence, be ground for reversing a judgment of conviction.”

In that case, as in this, the witness was not cautioned or directed by the judge to detail his testimony in respect to the particular point of disagreement and no other. It was said in that opinion, which was delivered by Mr. Justice Reeves:

“It not being shown that this was done, we are not authorized to say that such a departure from the requirements of law in the mo.de of examination and in permitting the witness to make a further and additional statement "from that made on the trial may not have been prejudicial to the rights of the appellant. It might have been presumed that the proper instructions had been given to the witness, if the judge had not stated what occurred at the time, but, having undertaken to state the facts, no such presumption can arise. If, however, it ap^ peared that the instructions were given, it would not remove the objection to the statement made by the witness on his re-examination. It is not necessary to examine the other grounds of objection to the judgment with a view to express an opinion, as they may he avoided on another trial.”

So the Tarver Case was reversed exclusively on the proposition involved here.

It was held in Shipp v. State, 11 Tex. App. 46, counsel for defendant cannot waive appellant’s right to be present on such occasions; and it was held in Edmondson v. State, 7 Tex. App. 116, following Tarver v. State and Williams v. State, supra, that where a witness has been recalled, it is error to permit him to make statements additional to his previous testimony; and in Lorance v. State, 37 Tex. Cr. R. 453, 36 S. W. 93, it was held error to interrogate a witness with reference to any other fact. These cases were reversed upon this question. These eases have been followed, so far as I can discover from an examination of the authorities, by all decisions in .Texas where the matter has come for investigation. See Wilson v. State, 37 Tex. Cr. R. 373, 35 S. W. 390, 38 S. W. 624, 39 S. W. 373; Lorance v. State, 37 Tex. Cr. R. 453, 36 S. W. 93; Lockett v. State, 55 S. W. 336; Southerland v. State, 52 Tex. Cr. R. 425, 107 S. W. 349; Williams v. State, 35 Tex. Cr. R. 183, 32 S. W. 893; Branch’s Crim. Law, § 878. This bill of exception cannot be treated in the light of the ordinary bill reserved to the introduction of testimony during trial. All legitimate testimony is introducible during the trial, and under certain circumstances it may be introduced in the discretion of the court for the due administration of justice before the argument is concluded; .but, when the argument has been concluded,' the case is closed absolutely so far as the introduction of testimony is concerned. There is no way in our Code and practice to get-witnesses before the jury afterwards, except where the jury disagree after their retirement as to what one or more witnesses stated. The witness can be recalled at the request of the jury, and under proper instructions may restate his previous testimony in accordance with the terms of the statute, but he cannot give new testimony. Wherever this question has come, and that statute has been violated, a reversal has always been granted, ánd well this should be the ease. The Legislature saw proper to close the case, so far as the introduction of testimony is concerned, at the conclusion of the argument. The case is then made one way or the other, and, so far as the facts are concerned as to the introduction of testimony, concluded. This is a valuable right; it is a provision of legislative authority in the due order of the administration of justice. They had the right, the authority, dnd the power to prescribe the rules, and this court and no court in Texas can or ought to say that it shall not: be carried out as enacted by the legislative authority. The question of injury does not enter into the discussion. Where the bill states the facts, and the statute has been violated, the question is settled, and the reversal inevitably follows if the law is pursued. A bill of exceptions reserved to this character of proceeding is not to be construed as a bill ordinarily reserved to the introduction of testimony during the trial.

3. There was another thing done that seems to me was entirely wrong. While the jury had Winn on the stand — at least, while they were in the courtroom — the district attorney suggested and offered to permit the jury to carry with them in their retirement a map or plat drawn by the witness Sanchez, causing appellant to object. Lorance v. State, supra. The bill recites this map was incorrect, admitted by Sanchez to be incorrect, and was not introduced in evidence, but it forced appellant to object to this sort of an illegal performance when they came in from their retirement to seek the testimony of the witness Winn about another matter. This presents the matter in a very different light from what it would have been had it occurred during the main trial of the case. Under the statute the district attorney had no authority to introduce the map, the jury had not called for it, and such performance as this should not be tolerated. Lorance v. State, supra. Its introduction would have been clearly violative of the statute (article 755) above quoted. It occurs to me that this question is of sufficient importance to require this judgment to be reversed. It was not right to force the appellant to object at that juncture to the admission of illegal testimony. From my view of the record and the law, I cannot accord my sanction to the af-.flrmance of this judgment.

This judgment should he reversed, and the cause remanded.

HARPER, J.

(concurring). Had the court permitted Sheriff Winn to testify to any new or additional facts when the question was propounded to him by the jury, I would not concur in the affirmance, but, in my opinion, the record discloses that he was not permitted to do so, and the court, in approving the bill, so qualifies it, and appellant, accepting it as qualified, is bound thereby. The sheriff testified he went to the scene of the difficulty, and that Ghon Sanchez showed him the different points occupied by each; that the sheriff picked up the hat, and it is recited:

“(Here the witness is shown the map drawn by Ohon Sanchez, and indicated each position on the plat or map as shown by the actual ground of the difficulty, that is to say, the different cords of wood that the parties used for barracks, the stump that caused the difficulty, the camps of the respective parties, and the dead oak tree where the deceased fell, and the place where witness found the hat.)”

lie then testifies to respective distances. This was upon his original examination.

Being of the opinion that no additional testimony or new fact was elicited when the sheriff was questioned by the jury, I concur in the affirmance.

       other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    STALLINGS et al. v. STATE.
    (No. 3564.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.)
    1. Bail <§=593 — Eobeeituke—Judgment.
    Under the express provisions of Code Or. Proc. 1911, arts. 489-501, judgment is properly rendered on a forfeited bail bond against the principal, and also against each surety for the full amount.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 409, 410, 413-417; Dec. Dig. <@=93.]
    2. Bail <S^57 — 'Validity os Bond.
    A bail bond entitled “State of Texas, County of PI.,” stating that the principal was charged “with the offense of a felony,” and required to give bail to appear at the “district court of said county,” and conditioned on his appearing “before the said district court at its next'term, to be begun and holden at the courthouse of said county, in the town of C.,” was not invalid as failing to require that the principal make his personal appearance before the district court of IP. county, as required by statute, or as failing to state that he was charged with a felony.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 232-236; Dec. Dig. <§=557.]
    Appeal from District Court, Hemphill County; E. P. Greever, Judge.
    Proceedings by the State against E. L. Stallings and others. Erom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Hoover & Dial and J. W. Sanders, all of Canadian, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is a scire facias case. E. L. Stallings had an examining trial before a justice of the peace of Hemphill county on a complaint charging him with swindling — a felony. Upon the hearing the justice of the peace required him to give bond as required by law in the sum of $1,-000 to appear before the next term of the District Court of that county. Thereupon he, with Geo. Gerlach and C. L. Tennison as sureties, entered into the proper bail bond, which we here copy :

“State of Texas, County of Hemphill.
“Know all men by these presents that we, F. L. Stallings as principal and. George Gerlach and C. L. Tennison as sureties, are held and firmly bound unto the state of Texas in the penal sum of one thousand ($1,000.00) dollars, for the payment of which sum, well and truly to be made, we do bind ourselves and each of us, our heirs, executors and administrators, jointly and severally, by these presents, signed and dated this the 7th day of March, A. D. 1914.
“The condition of the above obligation is such that, whereas the above-named E. L. Stallings stands charged by complaint with the offense of a felony, and upon a hearing of said complaint before C. B. Haynie, a justice of the peace of said county, sitting as an examining court, the said F. L. Stallings was, on the 7th day of March, 1914,_ by an order of said court required to give bail in the sum of one thousand dollars for his personal appearance before the district court of said county at the next term thereof, to answer the state of Texas upon the said charge above named, or, in default of such bail, to be committed to the jail of said county: Now, if the said E. L. Stallings shall well and truly make his personal appearance before the said district court at its next term, to be begun and holden at the courthouse of said county in the town of Canadian, on the 10th day of August, A. D. 1914, the same being the second Monday in said month, and there remain from day to day and term to term of said court until discharged by due course of law, then and there to answer said accusation against him, then this obligation shall become void; otherwise to remain in full force and effect.
“F. L. Stallings.
“George Gerlach.
“C. L. Tennison.
“Approved this the 7th day of March, 1914.
“C. H. Tipps, Sheriff Hemphill County, Tex.”

Stallings failed to appear as the bond bound him, and a proper forfeiture was had thereon, and judgment nisi properly entered. Proper and regular citation was duly issued thereon, which was duly served on said Ger-lach and Tennison, and at the proper time a regular judgment final was entered thereon. The statute in every particular was strictly complied with.

Appellants contend that the judgment is erroneous because it was against the principal for the full amount, and against each of the sureties for the full amount. The statute requires this, and the decisions so hold. C. C. P. arts. 489-501; Kiser v. State, 13 Tex. App. 201; Thompson v. State, 34 Tex. Cr. R. 135, 29 S. W. 789; Avant v. State, 33 Tex. Cr. R. 312, 26 S. W. 411.

He claims the bond was invalid, and judgment could not be rendered thereon on these grounds:

1. It did not require the principal to make his personal appearance before the district court of Hemphill county, as required by statute. The reverse of his contention is true, as is shown by a reading of the bond copied above.

(2) Because the statute requires that if the principal is ■ charged with a felony the bond shall so state. The statute so requires, and this bond strictly complies therewith, as a reading of it shows.

(3) He claims the bond failed to state before the district court of what county the principal was to appear. The reverse of this is true, as shown by the bond.

We have carefully read appellants’ brief and noted the authorities cited. The authorities they cite are inapplicable. We regard appellants’ contentions as hypercritical. The heading of the bond, in these words, “State of Texas, County of Hemphill,” is unquestionably a part of it, and when, the bond recites that the justice of the peace required him to give bail for his personal appearance before the district court of said county at the next term thereof, it could refer to no other county than Hemphill, and unquestionably did refer to that county, and that alone.

Likewise his contention that, jvhen the bond states that the principal is charged by complaint with the offense of a felony, it does not mean that the offense with which he was charged was a felony, is more than hypercritical.

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


author: KEY, C. J.

text:
    HIPPEL v. TATE FURNITURE CO.
    (No. 5504.)
    (Court of Civil Appeals of Texas. Austin.
    May 19, 1915.)
    Sales <@=>859 — Actions for Purchase Price —Eviden ce — Sueeicien c y.
    In an action for the purchase price of fur-, niture, which defendant claimed was not according to sample, a verdict for plaintiff for the full claim held not contrary to the overwhelming weight of evidence.
    [Ed. Nóte. — For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. @=359.]
    Appeal from Freestone County Court; R. L. Williford, Judge.
    Action by the Tate Furniture Company against J. C. Hippel. From a judgment for plaintiff, defendant’appeals.
    Affirmed.
    A. B. Geppert, of Teague, for appellant.
   KEY, C. J.

The Tate Furniture Company, a foreign corporation, brought this suit against J. C. Hippel, seeking to recover judgment for $490.25 alleged to be due from the defendant to the .plaintiff upon a sworn account for certain furniture sold by the plainr tiff to the defendant. The defendant filed an answer admitting that he ordered certain., merchandise, but alleged that the plaintiff’s agent who procured the order represented that the goods ordered were first-class and equal in style, finish, and material to certain other goods of like kind the defendant had in stock at the time the order was given. It was also alleged that, when the gdbds were unpacked after having been received by de-’ fendant, he discovered that they were of an inferior quality, and not such goods as the agent had represented and guaranteed that they should be; that he promptly notified the plaintiffs of that fact, and requested them to send a representative to adjust the matter, which they refused to do, whereupon he placed the goods in stock and sold them to the best possible advantage. He did not allege the price for which he sold them nor whether he made a profit or loss, nor did he pray for damages as an offset to the plaintiff’s claim, his prayer reading as follows: “Wherefore defendant prays the judgment of the court.” However, there was no exception to the answer, and the court instructed the jury that, if the plaintiff’s agent misrepresented the quality of the goods, and they were worth less than the contract price, to allow the defendant the benefit of that fact and deduct the difference from the contract price of the goods.

The jury returned a verdict for the plaintiff for the full amount of the contract price of the goods, and the defendant has appealed, and presents for decision only one question, which is embodied in the contention that the overwhelming weight of the testimony showed that the goods delivered were of an inferior quality and grade, and not such as had been ordered, and therefore the plaintiff was not entitled to recover the full contract price. As a witness in his own behalf, the defendant testified to the facts substantially as alleged in his answer, and also introduced the testimony of two other witnesses engaged in selling furniture, who testified that the defendant pointed out to them certain goods which he stated he had ordered from the plaintiff, and that the goods so pointed out were not of the grade of other goods in the defendant’s store, but were of an inferior and cheaper quality, estimating the difference at from 35 per cent, to 50 per cent. The plaintiff offered no testimony bearing upon that question. The statement of facts fails to show that the goods about which the other two witnesses testified were the goods involved in this case. They merely stated that the defendant pointed out to them certain goods, said by him to have been purchased frqm the Tate Furniture Company, but when that occurred was not stated, nor was it shown that the defendant purchased only the one lot of goods from the Tate Furniture Company. ’Hence we conclude that the jury had the right to reach the conclusion that the testimony of the two witnesses referred to fell short of showing the quality of the goods here involved. This left the defendant’s testimony without corroboration, and as he was vitally interested in the ease, and as the suit was between him and a foreign corporation, and was tried before a jury of his own county, and as his own testimony shows that he made a profit of 80 per cent, upon the goods in question, we do not feel warranted in setting aside the verdict. Besides the fact that the defendant was vitally interested in the matter about which he was testifying, there may have been something in his manner as a witness which, together with the circumstance of his interest, justified the jury in declining to give credence to his testimony.

Appellee has suggested that it is manifest that this appeal is for delay only, and has1 asked 10 per cent, damages, which request is refused.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.
      <g=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HELM et al. v. WELLS FARGO & CO. EXPRESS.
    (No. 5483.)
    (Court of Civil Appeals of Texas. Austin.
    May 5, 1915.)
    1. Carriers <@=>20 — Rates—Express Companies — Recovery op Penalty.
    Since Acts 22d Leg. c. 45, relating to express companies, was intended, as to express companies, to cover the entire field covered by the act of the same Legislature (Acts 22d Leg. c. 51) relating to railroads, though it does not authorize the recovery of a penalty by private individuals, the penalty provision of the latter act does not refer to express companies, notwithstanding a provision that all laws prescribed for railroads, in so far as applicable, shall apply to express companies; and hence an individual cannot recover from an express company for extortion and discrimination in rates the penalty prescribed by the railroad act.
    LEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 33-49, 133, 927; Dec. Dig. <§=> 20.]
    2. Statutes <@=^207 — Construction—General and Particular Intention.
    Where a statute expresses a general intention and also a particular intention incompatible with it, the particular intention may be deemed an exception to the general one.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 284; Dec. Dig. <@=>207.]
    3. Penalties <@=>3 — Statutory Penalties— Right to Recover.
    A statutory penalty cannot be recovered unless it is clearly authorized by statute.
    [Ed. Note. — For other cases, see Penalties, Cent. Dig. § 3; Dec. Dig. <@=3.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Action by W. V. Helm and others against the Wells Fargo & Co. Express. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Critz & Woodward, of Coleman, for ap-Xiellants. Baher, Botts, Parker & Garwood, of Houston, and Snodgrass, Dibrell & Snod-grass, of Coleman, for appellee.
   KEY, C. J.

W. B. and Lizzie L. Helm 'instituted this suit against the Wells Fargo & Co. Express to recover statutory penalties for alleged extortion and discrimination against the plaintiffs by the defendant in the matter of express rates for the transportation of freight, alleged to have been transported by the defendant. In its answer the defendant presented what was, in effect, a general demurrer, though it assigned two reasons for asserting that plaintiffs’ petition stated no cause of action, which reasons were: (1) That if the petition showed that the defendant had committed the wrongs complained' of, then there was no statute authorizing the plaintiffs to recover a penalty on account of such wrongs; and (2) that no one except the Railroad Commission or the state of Texas is authorized to sue an express company for the. recovery of statutory penalties on account of such wrongs as those stated in the plaintiffs’ petition. The trial court sustained the exceptions referred to, and the plaintiffs have appealed.

The Twenty-Second Legislature passed two separate bills, one entitled “An act to establish a Railroad Commission for the state of Texas, whereby discrimination and extortion in railroad charges may be prevented, and reasonable freight and passenger tariffs may be established; to prescribe and authorize the making of rules and regulations to govern the Commission and the railroads, and afford railroad companies and other parties adequate remedies ; to prescribe penalties for the violation of this act and to provide means and rules for its enforcement,” and the other entitled “An act to regulate rates or charges to be made by express companies for the transportation of all such articles of freight, money, papers and packages of any kind; to require such express companies to receive and promptly deliver same at the express office nearest destination and to make all such express companies subject to the control and regulation of the Railroad Commission of Texas, and to prescribe the penalties for the violation of this act.”

Section 17 of the act establishing the Railroad Commission provides, in substance, that if any railroad subject to that act shall violate any of its provisions, it shall be liable to the person injured thereby for the damages sustained in consequence of such violation; and if such misconduct amounts to extortion or discrimination, as defined in the act, then, in addition to such damages, the railroad so offending shall pay to the injured party a penalty of not less than $125 nor more than $500, to be recovered in any court of competent jurisdiction in any county into or through which such railroad may run. Section 22 of that act defines the terms “road,” “railroad,” “railroad companies,” and “railroad corporations,” as used therein, as meaning and embracing—

“all corporations, companies, individuals and associations of individuals, their lessees or receivers that mhy own, operate, manage or control any railroad or part of a railroad in this state; and all such corporations, companies and associations of individuals, their lessees or receivers as shall do the business of common carriers on any railroad in this state.”

Appellants predicate their right to recover the penalties sued for upon these two sections of that act, and if that was the only statute to be considered, their contention might be sustained. But the act relating to express companies, passed by the same session of the Legislature, covers the same field in reference to express companies that the act, portions of which are relied on by appellants, covers with reference to railroads. The first section declares that:

“Every person, firm or corporation, which shall do the business of an express company, upon railroads or otherwise, in this state, by the carrying of any kind of property, money, papers, packages or other things, are hereby declared to be common carriers, and shall receive, safely carry and promptly deliver at the1 express office nearest destination, every such article as- may be tendered to them,” etc.

By the second section the Railroad Commission of the state is given the power, and it is made its duty, to fix and establish reasonable and just rates and charges for property transported by express companies. The third and fourth sections of that law read as follows:

“See. 3. Every express company doing business in this state which shall demand or receive a greater compensation than that which may be prescribed and fixed by the * * * Railroad Commission for the transportation of any class or kind of property, money, papers, packages or things, shall be deemed guilty of extortion, and shall forfeit and pay to the state of Texas a sum not to exceed five hundred dollars for each offense; inovided, that if it shall appear that such violation was not willful, said company shall have ten days to refund such overcharges or damages, in which ease the penalty shall not be incurred. And the said Commission shall have authority and it shall be its duty to sue for and recover the same in the same manner as may be prescribed by law for like suits against railroad companies.
“Sec. 4. The said Commission shall have authority and it shall be its duty to call upon such express companies for reports, and investigate their books in the same manner as may be prescribed by law for the regulation of railroad companies, and the said Commission shall have power and authority to institute suits, sue out such writs and process as may be applicable and authorized for the regulation of railroad companies. All laws, rules and regulations made and prescribed for the government and control of railroads in so far as they are applicable, shall be of equal force and effect against all express companies.”

In the plaintiffs’ petition it is charged that the express company had demanded and received greater compensation than that which had been prescribed and fixed by the Railroad Commission for the transportation of certain property. Section 14 of the act relating to the Railroad Commission, in effect, defines extortion as charging, collecting, demanding or receiving a greater rate of compensation than that fixed and established by the Railroad Commission, and authorizes the state to sue for and recover a penalty of not less than $100 nor more than $5,000 for each act of extortion. Section 15 of that act defines unjust discrimination as follows:

“If any railroad subject hereto, directly or indirectly, or by any special rate, rebate, drawback, or other device, shall charge, demand, collect, or receive from any person, firm, or corporation a greater or less compensation for any service rendered or to be rendered by it than it charges, demands, collects, or receives from any other person, firm or corporation for doing a like and contemporaneous service, such railroad shall be deemed guilty of unjust discrimination, which is hereby prohibited.
“(a) It shall also be an unjust discrimination for any such railroad to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or to subject any particular description of traffic to any undue or unreasonable prejudice, delay, or disadvantage in any respect whatsoever.
“(b) Every railroad company which shall fail or refuse, under such regulations as may be prescribed by the Commission, to receive and transport without delay or discrimination the passengers, tonnage, and cars, loaded or empty, of any connecting line of railroad, and every railroad which shall, under such regulations as may be prescribed by the Commission, fail and refuse to transport and deliver without delay or discrimination any passengers, tonnage, or cars, loaded or empty, destined to any point on or over the line of any connecting- line of railroad, shall be deemed guilty of unjust discrimination: Provided, perishable freights of all lands and live stock shall have precedent of shipment.
“(c) It shall also be unjust discrimination for any railroad subject hereto to charge or receive any greater compensation in the aggregate for the transportation of like kind of property or passengers for a shorter than for a longer distance over the same line: Provided, that upon application to the Commission any railroad may in special cases, to prevent manifest injury, be authorized by the Commission to charge less for longer than for shorter distances for transporting persons and property, and the Commission shall, from time to time prescribe the extent to which such designated railroad may be relieved from the operations of this provision : Provided, that no manifest injustice shall be imposed upon any citizen at intermediate points. Provided, further, that nothing herein shall be so construed as to prevent the Commission from making what are known as ‘group rates’ on any line or lines of railroad in this state.”

That section also fixes the penalty for each act of unjust discrimination to be recovered by the state, the same being not less than $500 nor more than $5,000.

The act establishing the Railroad Commission is a general statute, relating to all corporations, companies, and associations, their lessees or receivers, doing business as a common carrier on any railroad in this state; while the act relating to express companies is a special statute, applying to a special class of corporations and persons, and is full and complete within itself. Such being the case, and both statutes having been passed at the same session of the Legislature, they are to be construed in pari materia, and, if possible, both permitted to have effect, even though in order to reach that result it should be necessary to hold that that portion of the act relating to the Railroad Commission and defining the terms “road,” “railroad” and “railroad companies” as including all such “corporations, companies, * * * and associations of individuals, their lessees or receivers, * * * as shall do the 'business of common carriers on any railroad in this state” was not intended to apply to and include express companies.

There is no provision of the act relating to express companies which authorizes the recovery of a penalty hy a private individual, and unless the other act establishing the Railroad Commission is to be read into and construed as a part of the statute relating to express companies, no such right to recover a penalty exists, and we are of opinion that such construction should not be adopted. The statute relating to express companies, with the exception hereafter to be noted, shows on its face that it was intended to cover the entire field, and therefore it must be construed as a limitation upon section 22 of the act relating to the Railroad Commission, and as eliminating express companies from the general definition therein given.

It is a well-known rule of construction that when a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention shall he considered as an exception to the general one, and that rule has application to this case.

We have not overlooked the fact that the statute relating to express companies provides that:

“All laws, rules and regulations made and prescribed for the government and control of railroads, in so far as they are applicable, shall be of equal force and effect against all express companies.”

We do not think that provision should be so construed as to incorporate the penalty features of the other statute into the statute regulating express companies. When a statutory penalty is sought to be recovered, such recovery will not be allowed, unless it is clearly prescribed and authorized by statute. A reasonable construction of the statute under consideration is that, when the Legislature declared that “all laws, rules and regulations made and prescribed for the government and control of railroads, in so far as applicable, shall be of equal force and effect as against all express companies,” nothing more was intended than to require express companies to do and refrain from doing the things prescribed with reference to railroads, in so far as they were applicable to express companies. This construction does not embrace the right to recover penalties, and we do not think this statute should be given a wider and broader construction, merely for the purpose of imposing penalties which the Legislature could have imposed by express language, in this very statute, but which it failed to do.

So our conclusion is that the trial' court decided the case correctly, and therefore the judgment rendered by that court is affirmed.

Affirmed.
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HARRIS v. SHEAR.
    (No. 5450.)
    (Court of Civil Appeals of Texas. Austin.
    April 21, 1915.
    Rehearing Denied May 26, 1916.)
    1. Fraud <§=^13 — Liability—Knowledge.
    False representations that the corporation, stock in which was sold to plaintiff, owned three lakes, which were worth $26,000 each, and was solvent, and that the defendant had personally inspected the property, were representations that a fact as to which accurate knowledge could be had was known to defendant, which constitute fraud without a showing that defendant knew of the falsity of such representations.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 3-5; Dec. Dig. <@=>13.]
    2. Fraud <@=^64— Actions — Sufficiency of Evidence — Damages.
    In an action for deceit in the sale of corporate stock, where the plaintiff’s evidence does not show that the stock was of no value, but fails to show what its value was, while defendant’s evidence was sufficient to show that it was worth par value, defendant is entitled to a directed verdict.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 65y2, 67-71; Dec. Dig. <®^64.]
    3. Appeal and Error. <@=^1050 — Harmless Error — Admission of Evidence — Immaterial Evidence.
    The admission of immaterial evidence is not reversible error, where no injury to appellant is shown.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. ®^1050.]
    Appeal from District Court, MeLennan. County; Tom L. McCullough, Judge.
    Action by James Shear against Langdon Harris, to recover damages for fraud and deceit. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Sleeper, Boynton & Kendall, of Waco, for appellant. Scott & Ross, of Waco, for ap-pellee.
   JENKINS, J.

As we construe the petition in this case, it is an action to recover damages for alleged fraud and deceit in the sale of stock in the Velasco Fish & Oyster Company, a private corporation.

Appellant assigns error upon the refusal of the court to sustain a general demurrer, and argues that the same should have been sustained for the reason that it is not alleged that appellant knew the falsity of the representations made by him at the time of the sale. The petition alleges that appellant represented that the corporation was the owner of three certain lakes, that he had inspected the property of the corporation, and that it was solvent; that the lakes were worth $25,000 each; that the property was located at Velasco, distant some 200 miles from Waco, where the plaintiff resided; that plaintiff had never seen the property of the corporation; that he was well acquainted with the appellant, and had confidence in his representations and relied solely upon said representations, which facts were known to appellant, and that the corporation was insolvent at the time of said sale; that it was not the owner of either of said lakes; and that its total property was of a value not to exceed $1,000 to $1,200, for which it was indebted in the sum of $3,000. When a party makes a positive representation that a fact is known to him, the same being a fact about which accurate knowledge could be ascertained, and being material, if such rexiresentation is false, it amounts to a positive and active fraud, for which he is liable in damages. McCord-Collins Co. v. Levy, 21 Tex. Civ. App. 109, 50 S. W. 606; Mitchell v. Zimmerman, 4 Tex. 80, 51 Am. Dec. 717; Watson v. Baker, 71 Tex. 750, 9 S. W. 867; Loper v. Robinson, 54 Tex. 510; Bank v. Bank, 77 S. W. 241; Beatty v. Bulger, 28 Tex. Civ. App. 117, 66 S. W. 896; Wright v. Mortgage Co., 42 S. W. 789; Seale v. Baker, 70 Tex. 290, 7 S. W. 742, 8 Am. St. Rep. 592; Byers v. Maxwell, 101 Mo. App. 179, 73 S. W. 739; Kountze v. Kennedy, 147 N. Y. 124, 41 N. E. 414, 29 L. R. A. 363, 364, 49 Am. St. Rep. 651. In the case last referred to it is said: “The gravamen of the action [for deceit] is actual fraud, and nothing less will sustain it.” This does not seem to be the doctrine in this state, but in that case it was held that if the representations are made upon assumed personal knowledge, action for deceit will lie. And in 20 Cyc. p. 27, it is said:

“It is not always necessary that the speaker should actually know that his representation is false. If the statement is a matter susceptible of accurate knowledge, and he makes it recklessly without any-knowledge of its truth or falsity, and in the form of a positive assertion, calculated to convey the impression that he knows it to be true, the representation is equally fraudulent. The rule just stated applies although the speaker honestly believes that the fact which he represents as existing actually does exist. * * * The fraud consists in passing off his opinion or belief under the guise of knowledge.”

To the same effect is Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149, 18 Am. St. Rep. 485. Upon these authorities we hold that the court did not err in overruling the general demurrer.

Appellee objects to a consideration of all other assignments of error except the seventh, for the reason that they are not in compliance with the rules. These objections are well taken, but we will consider most of the assignments, in view of the fact that the same questions will arise upon another trial of this case.

We sustain appellant’s third proposition under his seventh assignment of error, which assignment is that the court erred in refusing to peremptorily instruct a verdict for the defendant; the third proposition being that there is no evidence showing the value of the stock sold to appellee at the time of such sale. This point was also raised by appellant’s tenth assignment of error, which is:

“The court erred in submitting to- the jury, over defendant’s exception, special issue No. 15, reading as follows: ‘Question 15. What was the value of the stock purchased by plaintiff, Shear, at the time of the purchase?’ In response to this question the jury answered, ‘No value.’ ”

The testimony of the appellee, without reference to the testimony upon the part of the appellant, does not show the stock was of no value, and does not show what value said stock possessed at the time of the sale. The testimony on the part of the appellant is sufficient to show that the stock at the time of the sale was worth par value.

The testimony objected to under the third assignment of error appears to have been immaterial, but it is not shown that appellant suffered any injury by -reason of the admission of such testimony. The statement offered to be proven, as shown by the fourth assignment, of error, was that of the defendant made to the corporation not under oath, and the court did not err in excluding the same. The testimony offered, as shown by the fifth and sixth assignments of error, should have been admitted.

There is no merit in the eighth and ninth assignments of error. The eleventh and twelfth assignments are substantially the same as the tenth. There was no error in the action of the court as complained of in the thirteenth assignment.

The other assignments are to the effect that the findings of the jury are not sustained by the evidence. It is not necessary for us to pass on these, as we cannot tell what the evidence will be upon another trial of this cause.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial in accordance with this opinion.

Reversed and remanded.
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