text:
    RICHARDSON v. STATE.
    (No. 3820.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Criminal Law <&wkey;1134 — Exceptions — Questions Presented por Review.
    Where no exceptions were reserved to the introduction of any testimony, nor to the charge of the court as given, and no special charge was requested, the only question presented for review w.as the sufficiency of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    Appeal from District Court, Trinity County.
    Brit Richardson was convicted of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    J. A. Platt, Dist. Atty. of Groveton, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year’s confinement in the state penitentiary.

No exceptions were reserved, to the introduction of any testimony, nor to the charge of the court as given. No special charge was requested. So the only question presented for review is the sufficiency of the testimony. Tom Kirkwood testified he secured a bottle of whisky from appellant and paid him a dollar for it.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    GRISHAM v. STATE.
    (No. 3818.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Intoxicating Liquors &wkey;>238 — Unlawful Sale — Question for Jury.
    In a prosecution for unlawfully selling intoxicating liquor in a prohibition county, the positive testimony of the state’s witness that defendant sold him intoxicating liquor as alleged in the indictment, denied by defendant, made the offense a question for the jury.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. <&wkey;> 238.]
    2. Ceiminal Law <&wkey;1092 — Exceptions — Verification.
    A so-called “Appellant’s Exceptions to the Charge of the Court,” not’ verified by the trial judge, or shown to have been presented to him for Ms action before the trial was concluded, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <s&wkey;1092.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    L. M. Grisham was convicted for unlawfully selling intoxicating liquor in a prohibition county, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully selling intoxicating liquor in a prohibition county, a felony, and his punishment assessed at the lowest prescribed by law.

'He contends that the evidence is insufficient to sustain the verdict. The state’s witness testified positively that the appellant sold him intoxicating liquor at the time and place alleged in the indictment. He denied this. That was a question for the jury. We cannot disturb the verdict.

There appears in the record what is termed “Appellant’s Exceptions to the Charge of the Court.” However, it is in no way verified by the trial judge, and it is not shown anywhere or in any way that it was presented to the trial judge for his action, or that it was ever called to his attention at any time before the trial was concluded. Hence it cannot be considered. Ross v. State, 170 S. W. 305.

The judgment is affirmed.


author: PRBNDEÍRGAST, P. J.

text:
    LAWSON v. STATE.
    (No. 3813.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)

      X. Criminal Law &wkey;>1102 — Statement of Facts — Time for Filing".
    A statement of facts, filed more than 20 days after the adjournment of the court, will be stricken on motion.
    TEd. Note. — For other cases, see Criminal Law, Dec. Dig. &wkey;?1102.]
    2. Indictment and Information <®=»137 — Motion to Quash — Grounds.
    An indictment for knowingly permitting his house to be used for purposes of prostitution would not be quashed because defendant’s name did not immediately follow the words “upon their oaths in said court present that, * * * ” where the indictment as a whole clearly alleged that defendant committed acts which under the statute would make him guilty of the offense, or on the ground that it did not allege more than that the premises were in the county, as it was not necessary to allege particularly where they were situated.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480^487; Dec. Dig. <&wkey;137.]

      Appeal from Childress County Court; Frank W. Freeman, Judge.
    A. D. Lawson was convicted for knowingly permitting his house to be used for purpose of prostitution, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRBNDEÍRGAST, P. J.

Appellant was convicted for knowingly permitting his house to be used for purposes of prostitution, and assessed the punishment prescribed by the statute.

There is in the record what purports to he a statement of facts, but it was filed much more than 20 days after the adjournment of court. The Assistant Attorney General’s motion to strike it out on that ground is therefore sustained.

The only question which we can review in the absence of a statement of facts is his motion- to quash the indictment His first ground to quash is that appellant’s name does not appear in the indictment where it should, claiming that it should immediately follow these words in the indictment: “Upon their oaths in said court present that. * * * ” There is nothing in this, for the indictment as a whole clearly alleges that the appellant, A. D. Lawson, with suitable allegations, in conformity with the statute, did commit the acts which would show that he is guilty of the offense. His Second ground is that the indictment does not allege particularly where the house was located in the county where the offense was alleged to have been committed. This was unnecessary. It alleged that the house was situated in said Childress county, which was all that was necessary.

The judgment is affirmed.
      @=oEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    JERNIGAN v. STATE.
    (No. 3819.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Chiminae Law <&wkey;531 — Evidence—Confessions — Authentication.
    Where a written confession was made to a district attorney by one accused of rape, the district attorney was competent to testify that the confession was voluntarily made, that it was reduced to writing, signed by the accused, that he had been warned that he need not make any confession, and that if he did it would he used as evidence against him, as required by Code Cr. Proc. 1911, art. 810.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1212-1217; Dec. Dig. &wkey;> 531.]
    2. Ckthinai, Law <©=3448 — Evidence—Confessions.
    It was not error to allow a city detective to testify that the persons who had signed a confession by defendant as witnesses did not hold any official position in the city or county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 104,1-1043, 1045, 1048-1051; Dec. Dig. &wkey;448.]
    3. Rape &wkey;>51 — Evidence—Identity oe De-pendant.
    In a prosecution for rape, evidence held sufficient to sustain a finding that the defendant was the person that committed the crime.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. &wkey;51.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Sam Jernigan was convicted of rape, and he appeals.
    Affirmed.
    J. A. Platt, Dist. Atty., of Groveton, and O. C. McDonald, Asst. Atty. Gen., for the State..
   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at death.

There are but three bills of exception in the record, all relating to the introduction of a purported confession of defendant, and the evidence offered to prove that it was voluntarily made, signed, and witnessed as provided by law. The confession on its face alleges:

“T, Sam Jernigan, after being duly warned by J. A. Platt, district attorney, Twelfth judicial district of Texas, as follows, (1) that I do not have to make any statement at all, and (2) that any statement here made by me may be used in evidence against me upon the trial for the offense concerning which this statement is made, and being so warned by the said J. A. Platt, as aforesaid, do here make to the said J. A. Platt the following voluntary statement.’’

Then follows the confession, and it is signed by appellant, he making his mark, and was witnessed by C.. Ansberer and Leon M. Siler. The defendant objected to the introduction of the confession, that defendant signed same by his mark, if at all, and that neither of the subscribing witnesses were called to testify how and under what circumstances the purported confession was signed; that it had not been properly shown that the subscribing witnesses were not peace officers. When these objections were made, Hon. J. A Platt, district attorney, testified:

“I was in Houston about the 28th of June, 1915. While in Houston I saw and conferred with the defendant, Sam Jemigan. I made a written statement at the request of Sam Jerni-gan. On that occasion I signed Sam Jernigan’s name to a, statement at his request; I signed the name, and he touched the pencil and made the mark. I remember others being there. O. Ansberer was there; he represented that to be his name, and Leon M. Siler. They witnessed the signature. I asked them particularly in the presence of the defendant if they held any official position, and they said they did not. The defendant was there present. I saw them sign that instrument (indicating paper handed him by counsel). That is the name I signed at his request; he told me he couldn’t write his name, and I signed his name, and he made his mark. When I started to leave the jail, Jemigan asked me when he would have Ms trial; sometMng about when his trial would be. After writing this statement I read it to him and warned him that he didn’t have to make any statement, and that if he did make it it would be used against him in evidence. It was read to him twice, and he was warned that he didn’t have to make it. It was written down just as lie told it. He made no objection to it. I asked him if he had anything to say, and he said yes, he wanted to tell how the thing happened, to tell the truth about it, and I told him he didn’t have to make any statement, and that the statement might be used against him on trial, concerning the offense with which he was charged, and he went ahead and told me, and I got paper and told him to tell it slowly, and I wrote it down as he told it, and when he got through I read the whole thing oyer.”

Appellant objected to Mr. Platt being permitted to make this proof, his contention apparently being that only the subscribing witnesses could be called to make such-proof. The court did not err in overruling the objections made. If appellant desired Messrs. Ansberer and Siler as witnesses, he could have secured process for them. He does not allege nor contend that if present they would testify to any other state of facts than as testified to by Mr. Platt.

The state also called O. W. McPhaill as a witness, and he testified:

“He was working for the city of Houston as city detective in the police department. That he was in Houston on the 28th of June, 1915. That he knew Leon M. Siler and O. Ansberer, and that they, Leon M. Siler and O. Ansberer, did not hold any official position in Houston or Harris county, and that he saw them, the said Siler and the said Ansberer, sign as witnesses the purported statement or confession of the defendant, Sam Jemigan.”

One of the three bills contends that the court erred in permitting the testimony of Mr. McPhaill to be introduced; another, that there was error in admittiug the testimony of the district attorney; and, the third, that there was error in admitting the confession. As before stated, these are the bills in the record, and they and neither of them present error. When appellant objected to the introduction of the confession in evidence, it then became necessary for the state to make proof of its execution by defendant, and that the provisions of article 810 of the Code of Criminal Procedure had been complied with, that is, that it was voluntarily made, that it was reduced to writing, and signed by him, and that he had been warned by the person to whom the confession was made that he did not have to make any statement, and that it would be used in evidence against him. Mr. Platt was the person to whom the confession was made, the person who reduced it to writing, and who knew better whether or not the warning had been given, as he had given the warning. It seems to us Mr. Platt was the proper person to make this proof. And as the statement was signed by mark, the law required that it be witnessed by some person other than a peace officer; therefore, in order to meet the objection made, it was necessary to make the proof sworn to by Mr. McPhaill, that neither of the subscribing witnesses were peace officers. There is other testimony in the record, both as to the fact that the subscribing witnesses were not officers and that the statement was a voluntary one, and was signed by appellant; he making his mark.

This disposes of all questions in the record other than the one that the evidence is of that doubtful character and we should not permit the death penalty to be inflicted. There is and can be no question that the little girl was assaulted and penetrated. Appellant do.es not seek to dispute that fact. It is proven by the little girl, her mother, and two physicians who examined her person; but appellant does insist that the evidence does not unerringly point to him, as the person who committed the crime. If we should consider his confession, with the other evidence, this would be shown also beyond question. Rut appellant insists that the confession was obtained under such circumstances that we should give but little, if any, weight thereto, and that, as many of the statements in the confession are shown to be false, it bears the impress that it was manufactured by appellant and he was induced to do so by one Buddy Townes, who had an incentive to so do; that Buddy Townes, in event he got a confession from defendant, would have two criminal cases pending’ against him for violating the local option law dismissed. But independent of this confession, we think the evidence unerringly points to appellant as the person who committed the crime. The little girl testified:

“My name is Rosa Vondra. I am 14 years old. I was 14 years old the 8th of March, this year. I live on the farm', about five miles from Groveton. My father’s name is Joseph Vondra. About two months ago, about the 27th of May, I was living at Kopiechek’s. I worked in the field with my father on that day, about three miles from the house where my father lived. I quit working in the field that day about 1 o’clock. When I quit working that day, I went and cut some weeds and went home. Nobody went home with me. I left my father and mother in the field. I took a sack of weeds with me. I went just a piece of the way near the railroad track in going home. I just saw the train before I got home. I did not meet anybody walking. I didn’t meet any negro. I didn’t see any negro in the woods before I got home. When I was going I didn’t see anybody until I got to that little creek, away from- the railroad. The negro asked where I lived, and I said nothing. He asked me to come to him. That was about a mile from the railroad. The negro had a gallon bucket in his hand. He was dressed in blue overalls, blue shirt, and raggedy black hat. When he asked me to come to him, I did not do it; I ran — ran towards my folks. I ran towards the field where my folks were. That was close to Piney creek. When I ran the negro ran after me and caught me. I would know that negro if I were to see him'. I see Mm now. (Witness points out defendant.) This is the man here that ran after me. He caught me and led me to the woods. I sat down and refused, and he got me by the leg and turned me over and got on me, rolled on top of me. He put his private parts in my private parts. I hollered. He tried to stop me from hollering. He held my mouth with his hand. He stayed on top of me two or three minutes. Somebody hollered in the woods near by, and that frightened him, and he got up then. Then I got up and ran towards the field where my mother and father were. I went back to my mother and father where they were at work in the field. I told them what had happened. I first told my mother, and my mother went to my father and told him, and he quit his work and ran towards the negro settlement there. Q. Did the negro, before he left you, ask you if you were going to tell anybody? A. I would tell my mother and father. I was going to tell my father. This happened about two months ago. The negro tore my clothes. I tried to keep him from pulling me into the woods. I was catching hold of saplings and trees, and he dragged me. He had a regular syrup bucket, and there wasn’t any lettering on it. This happened in Trinity county, state of Texas, about eight miles from Groveton. When he dragged me, I was skinned on the back and back of "my ear. He bruised my lips by holding his hand over it. I didn’t see the negro the next day or the next two days after that. I haven’t saw him before or after. This is the negro (indicating defendant). I am quite sure it is him.”

On cross-examination she was asked if on the day after the occurrence she had not failed to identify appellant. She testified:

“X told Mr. Shupak that the clothes on that man they had there wasn’t the clothes the man had on that made the assault on me. He didn’t look like him, except in the face, he didn’t 109k as large, but, after I come to think about it, it come to my mind that he was the nigger.”

The appellant called Shupak as a witness, and he testified that they carried appellant out to where the little girl was stopping, and' he called for her, and he says, when she first saw him she said, “That looks like him,” and he told her to come closer and look good, and she did so, and said it looked like him in the face, but he did not have on clothes like the one who assaulted her; she said it was not the clothes, but identified the hat as the one worn by the person who assaulted her. It was a black ragged hat. She said the person who assaulted her looked bigger and taller, and said she would not be sure whether he was the person or not. Others present can only testify to what Shupak told them, because the conversation was carried on between Shupak and Rosa in the Polish language. This is the extent it was sought to break down her positive identification on the trial, and, if this was all the testimony, it might be said to render the identification a little uncertain. But it will be noticed that the little girl testified to the assault taking place near the railroad and Piney creek, and fixes the time shortly after the train had passed. Joe White testified he was a brakeman on this train, and saw a girl at the point testified to by Rosa; that appellant was on the train at this time, and he saw him get off the train about a quarter of a mile this side of Piney creek and go back in the direction he saw the little girl; that appellant said he was going to pick some berries. Ed Williams testified he was on the train, saw appellant oh the train, and saw him get off the train; that he had blue overalls, a shirt, and black hat on; it was a ragged looking hat; that appellant got off the train about a quarter of a mile this side of Piney creek; that he had a bucket, and said he was going to pick a few berries. Other witnesses also so testified, and place appellant and the little girl at and near the point where the rape occurred, and no other person is seen there or near there. G. W. McGraw says he was on Piney creek fishing the day the little girl was assaulted; that he saw appellant in Piney creek bottom that day; that he heard a scream, and soon thereafter he saw the negro in the bottom, and saw him turn to the left and jump the creek; that when he heard the scream he hollered back. The little girl testified that when some one was heard the negro got off of her and ran. Thus by all the testimony, other than her own and appellant’s confession, the little girl is shown to be at this point and was ravished. Appellant is the only negro the evidence places at or near this place; a scream is heard, and he is seen running away, coming from the direction where the crime was committed.

There is no testimony that he was at any other or different place, and if the little girl had not identified appellant positively on the trial,- and no confession was introduced, but she had described the man as she did describe him on this and all other occasions, with the other evidence in the case, it would amply support the verdict.

The judgment is affirmed.
      <g^>For‘other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BROD v. STATE.
    (No. 3772.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. CRiminal Daw <&wkey;368 —Evidence —Admissibility — Other Acts.
    Evidence that defendant’s father, shortly after the shooting by accused, violently cursed and abused another person who had been engaged in the fight was improperly admitted as part of the res gestee; it being immaterial upon defendant’s conduct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. &wkey;j368.]
    2. Criminal Law <&wkey;1171 — Trial—Remarks of Attorneys — Prejudicial Error.
    While after a change of venue taken by the state in a criminal trial it is proper for the defendant’s attorney to comment on the fact that a change was taken, the statement of the state’s attorney that “the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there,” is improper, and the judge’s refusal to direct the jury to disregard it was error prejudicial to defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. <&wkey; 1171.]
    3. Homicide <&wkey;122 — Defenses—Defense of Another.
    Where defendant, accused of murder, shot the deceased who was attacking defendant’s father, he was guilty of no offense, if it reasonably appeared to him when he shot that the life of his father was in danger, or that he was in danger of suffering serious bodily injury, and the criterion is not what the circumstances actually were, but what they would have appeared to be to a reasonably prudent man.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 177-181; Dec. Dig. <^^122.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Jake Brod was convicted of murder, and he appeals.
    Reversed and remanded.
    A. G. Lipscomb, of Hempstead, J. E. Ed-mundson, of Bellville, Mathis, Teague & Em-brey, of Brenham, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement'in the state penitentiary.

It appears there had been a game of baseball in the afternoon; that the shooting took place at night. The state’s contention is that appellant had become dissatisfied with the management of the baseball team, and had sought to break it up. Deceased, Gus Ueckert, was also a member of the team, and ill will existed between Ueckert and appellant, growing out of this matter. After the game of ball, a dance was had that night on a platform adjacent to a beer garden, and appellant and deceased were both at this dance, and the state’s evidence is that, while deceased, Ed Ueckert, and Roman Michalski were drinking soda water, appellant approached them and said, “You want to fight, you G-d d-d bastard?” when deceased replied, “Jake, I don’t want to have anything to do with you,” when, with a knife in his hand, he approached deceased and said, “You G — —d d-d s-n of a b-h.” Ed Ueckert here interfered and carried appellant to his father, Anton Brod (who was constable of the precinct), and asked him to make appellant behave. Appellant’s father said something to his son about behaving, but almost immediately went to where deceased was standing, caught him in the collar and said, “I am tired of you calling my hoy s-ns of b-hes; I didn’t raise no s-n of a b-h, G-d d-n you.” Deceased replied, “Mr. Brod, don’t hit me.” Anton Brod responded, “I will, G-d d-n you,” pulling his pistol. As he pulled his pistol, Ed Ueckert grabbed his arm, and Anton Brod and Ed Ueckert went down, Ed Ueckert falling on his face, but having the hand with the pistol under him, Anton Brod being at his side and over him. Michalski and Gus Ueckert caught hold of Anton Brod, as they say, to pull him off and prevent him shooting. Appellant Jake Brod rushed up and cut Gus Ueckert in the shoulder with a knife, retreating after he had done so. Gus Ueckert grabbed a soda water bottle and threw it at Jake Brod, when Jake Brod drew a pistol and shot him, inflicting a fatal w’ound.

The defendant’s contention is that deceased had been writing letters to a young lady in the community and receiving letters from her, the letters to deceased being sent to appellant for delivery. Deceased’s wife hearing of those letters, deceased accused appellant of informing his wife, and he gives this as a reason for their ill will. The defendant’s contention is that no words passed between him and deceased on the night of the shooting, and that between 11 and 12 o’clock, his father, Anton Brod, came to where he was standing and said, “Come on, Jake, let’s go home,” when Gus Ueckert, deceased, remarked, “You’d better take the s-n of a b-h home, else I will kill him.” Then Anton Brod turned and said to deceased, “You can kill hell,” when deceased picked up a beer glass and drew it back as if to strike, when Anton Brod caught deceased’s hand with one of his hands and pulled his pistol with the other. As he pulled his pistol, Ed Ueckert grabbed the hand with the pistol in it, and Anton Brod and Ed Ueckert went down, Ed Ueckert having the hand with the pistol under him; ■ that Gus Ueckert then jumped on Anton Brod and struck him, when appellant rushed up and cut Gus Ueck-ei't. Gus Ueckert grabbed a bottle and •threw it at appellant, when, as appellant contends, Gus Ueckert drew a knife, got on his father, Anton Brod, and began cutting at his father, when he, appellant, shot. As he shot, all parties parted, and Gus Ueckert, deceased, went to his father-in-law’s house, some hundred yards distant. Thus, it is seen the evidence is in sharp conflict, both as to the origin of the fatal difficulty and the events immediately preceding the shooting. There are a number of bills of exception in the record, but we do not deem it necessary to discuss but three of them, as the others present no error.

The first bill we will mention is the one wherein it is shown that shortly after the shooting of Gus Ueckert by Jake Brod and after the parties fighting had all been separated, the state was permitted to show that Anton Brod, father of appellant, cursed and very violently abused Roman Michalski. This evidence seems to have been admitted on the ground that it occurred so soon after the difficulty in which appellant shot Gus Ueckert that if was res gestae of that transaction. If it was appellant doing the cursing and committing the acts towards Michalski, we would agree with the trial court, but Anton Brod was not on trial, and certainly appellant cannot be held responsible for the acts of his father towards a third person after the difficulty in which he did the shooting was over. The acts and conduct of appellant might throw light on his previous acts, but the acts and conduct of his father could not do so. We are of the opinion that the court should have sustained the objection to the acts and conduct of appellant’s father toward Roman Michalski after the shooting was over.

In another bill, it is shown that Mr. Mathis, attorney for defendant, had commented on the fact that the record disclosed that the state had had the venue of this case changed from- Waller to Austin county, and remarked that this was not fair to defendant; that he should have been tried in Waller county, where both appellant and deceased had been raised. As the record had been introduced showing the change of venue to have. been made, appellant’s counsel could comment on that evidence, and state’s counsel could also reply to such argument and comment on any fact in evidence, but state’s counsel should not have been permitted to go outside of the record, and say “that the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there.” There was ho evidence in the record upon which to base such statement. Again, state’s counsel said, in commenting on the testimony of Anton Brod, “That old man Brod went over to Richmond to help get a murderer out.” Anton Brod testified to material facts for appellant, and, if his testimony was true, it would tend to show that appellant killed deceased to save his, Anton Brod’s, life. Upon objection being made, the court instructed the jury not to consider the last remark, but refused to instruct the jury hot to consider the remark about the history of Waller county, stating they turned murderers loose over there. Oounsel for the state may always comment on the testimony and draw legitimate deductions therefrom, but in their zeal they should not get outside the record and inject new and prejudicial matter into the case.

The ¡only other bill we deem it necessary to discuss is the one complaining of the charge of the court in instructing the jury:

“The resistance which the person about to be injured may make to prevent the commission of the offense must be proportioned to the injury about to be inflicted. It must be only such as is necessary to repel the aggressor. If the person about to be injured uses a greater amount of force to resist such injury than is necessary to repel the aggressor and protect his own person, he is himself guilty of an illegal act, according to the nature and degree of force which he has used, but in all cases the matter is to be viewed from the defendant’s standpoint. Any person, other than the party about to be injured, may also, by the use of necessary means, prevent the commission of the offense, and the same rules which regulate the conduct of the person ta be injured in repelling the aggression are also applicable to the conduct of him who interferes in behalf of such person. He may use a degree of force proportionate to the injury about to be inflicted, and no greater.”

It is contended that this is too much limitation to place upon appellant’s right of self-defense. It is the law of this state that one who seeks to justify his act on the ground that he c'ommitted the act in.defense of another (in this instance in defense of his father) can use no greater force than seems to him necessary to accomplish that purpose. If Anton Brod was in no danger of losing his life or suffering serious bodily injury, appellant would have nb right to kill in his defense. He would only have the right to use such force as was necessary to repel the aggressive act, or acts. According to the state’s evidence, Anton Brod was in no danger of death or suffering serious bodily injury. Ed Ueekert grabbed the hand in which Anton Brod had the pistol to keep him from shooting his brother; and the acts and conduct of Gus Ueekert and the others were done to keep Anton Brod from injuring Ed Ueekert after he had gotten him down, thus authorizing a finding by the jury that Antbn Brod was in no danger at the time the fatal shot was fired, and from the verdict they evidently so found. While this is the law, yet it is also the law that a jury must view the circumstances as it appeared to appellant at the time. Not that they must accept his version, but they must take all the evidence and pass on the question of how it then, at the time of the difficulty, would appear to a reasonable person situate as was appellant. If from all the facts and circumstances it reasonably appeared to appellant that deceased was on his father, cutting at him with a knife, thereby endangering the life of his father, he would be justified in slaying to save the life of his father. The charge as given herein, we think, is too restrictive, and should be so drawn on another trial as to present clearly that, if it reasonably appeared to defendant at the time he shot that the life of his father was in danger, or he was in danger of suffering serious bodily injury, he would be guilty of uo offense. And this question should not be passed on as it appeared to the jury from the evidence, but as the jury believed it appeared to defendant at the time he acted.

The case is reversed, and the cause remanded.
      ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^For other cases see same topic anil KEY-NUMBBR in all Key-Numbered Digests and Indexes


text:
    GREEN v. STATE.
    (No. 3737.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Criminal Haw <&wkey;>1092, 1102— Appeal — Statement op Facts and Bills op Exception-Time por Filing.
    Where the term at which a criminal trial occurred adjourned on May 15th, a statement of facts filed July 29th, and bills of exception filed the next day, would be stricken and not considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861,2919; Dec. Dig. &wkey;1092, 1102.]
    2. Criminal Law &wkey;>27 — Felonies and Misdemeanors — Intoxicating Liquors.
    Under Acts 31st Leg. c. 35, providing that if any person shall sell any intoxicating liquor in any territory in which the sale of intoxicating .liquors .“has been prohibited” he shall be punished by confinement for not less than one nor more than three years, and Pen. Code 1911, art. 597, providing that if any person shall sell any intoxicating liquor in any county, etc., in -which the sale of intoxicating liquor “has been prohibited,” he shall be punished by fine and imprisonment for not less than 20 nor more than 60 days, and if any person shall sell any intoxicating liquor in any county, etc., in which the sale of intoxicating liquor “shall hereafter be prohibited,” he shall be punished by imprisonment in the penitentiary for not less than one nor more than three years, it is a misdemeanor only to sell intoxicating liquors in territory where prohibition had been adopted prior to the act of 1909, and a felony to make such a sale in territory where prohibition was subsequently adopted, and there is no conflict between the two clauses of article 597.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 29-31; Dec. Dig. <&wkey;27.]
    Appeal from Matagorda County Court; Thomas H. Lewis, Special Judge.
    J. H. Green was convicted of making a sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    See, also, 155 S. W. 210.
    J. W. Conger, of Bay -City, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for making a sale of intoxicating liquor after prohibition was in force in Mat-agorda county, and assessed the lowest punishment prescribed by law for a misdemeanor.

The term of court at which this trial occurred adjourned on May 15, 1915. The statement of facts was not filed until July 29, following, and the bills of exceptions the next day. Hence the Assistant Attorney General’s motion to strike all these out and not consider them must be sustained. Without these, the only question raised which we can consider is to the jurisdiction of the county court.

This prosecution was begun by complaint and information in the county court. The information alleges that the prohibition election in said county was ordered by the commissioners’ court on March 16, 1907; that the election for prohibition carried; and thereupon the commissioners’ court passed an order declaring the result and prohibiting the sale of intoxicating liquors in said county; that such order was published for four successive weeks as required by law; and that this offense was committed on October 4, 1912.

Prior to the Acts of 1909, p. 356, it was a misdemeanor only to sell intoxicating liquors in prohibition territory. Said act of 1909 made it a felony to sell in such territory. The revisers in 1911, in the first clause of article 597, P. G., which was enacted and adopted by the Legislature of that year, provided that, if any person shall sell intoxicating liquors in prohibition territory “in which the sale of intoxicating liquor has been pro* hibited under the laws of this state,” he shall be guilty of a misdemeanor, punishable by fine of not less than $25 nor more than $100, and by imprisonment in the county jail for not less than 20 nor more than 60 days; and, in the second clause of said article, made it a felony for any person to sell in prohibition territory “in which the sale of intoxicating liquors shall hereafter be prohibited under the laws of this state.”

It has been the uniform holding of this court in many cases, since the said act of 1909 was passed and the Revised Statutes adopted, that, as stated in said article 597, it was a misdemeanor only to make an illegal sale of intoxicating liquors in prohibition territory where prohibition had been adopted prior to the act of 1909, and a felony where adopted since the act of 1909, and that there is no conflict between the clauses1 of article 597; the first making it a misdemean- or and the latter a felony. So that, in this case, appellant’s contention that the two clauses of the act conflict, and in effect therefore that neither, or only the felony clause, is in force, and also his contention that the county court had no jurisdiction, cannot be sustained. Lewis v. State, 58 Tex. Cr. R. 351, 127 S. W. 808, 21 Ann. Cas. 656; Mealer v. State, 66 Tex. Cr. R. 140, 145 S. W. 353; Nobles v. State, 71 Tex. Cr. R. 123, 158 S. W. 1133; and other cases there cited.

The judgment is therefore affirmed.
      <&wkey;>For other eases see same topic .and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    MAYS v. STATE.
    (No. 3809.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Criminal Law <&wkey;945 — Grounds — Newly Discovered Evidence.
    A new trial, after conviction of assault to rape a child under 15 years of age, will not be granted on the ground of newly discovered testimony of a physician, who had examined the child within 48 hours of the time of the alleged assault, and found no bruises about the child’s person, for the assault may have occurred without any injury to the child.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. &wkey;3945J
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Willie Mays was convicted of crime, and he appeals.
    Affirmed.
    O. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to rape, his punishment being assessed at five years’ confinement in the penitentiary.

There is nothing in the record that requires revision. There is neither a statement of facts nor bill of exceptions forwarded to this court. There is an affidavit of newly discovered testimony, but it is very indefinite and bardly tangible from any viewpoint, and especially so in tbe absence of the evidence. It shows that Dr. Gilbert made such affidavit in effect that he examined the alleged injured girl, who was under 15 years of age, within 48 hours of the time of the alleged assault, and found no bruises or anything that indicated rape about her private parts. Dr. Gilbert testified, on the trial and it is so manifested by the motion for new trial; but, even if he had not, the jury only having convicted appellant of assault to rape, the fact there was no bruises about her person would be of very small value. The assault may have occurred without ever having injured her private parts.

As the record is presented, the judgment will be affirmed, and it is, accordingly, so ordered.
      @=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PREND'ERGAST, P. J.

text:
    COHEN v. STATE.
    (No. 3715.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Game <&wkey;>9 — Prosecution—Instructions.
    In a prosecution under Act March 13, 1911 (Acts 32d Leg. c. 60) § 5, for having in his possession for the purpose of sale and for offering to sell the hide of a wild deer killed in the state, where the evidence raised the issue as to whether defendant first told the game warden that the hide was for sale, but that he was not then in possession of it, but it was in possession of his employer, and that he had no authority to sell it, and, after learning from his employer that it could not be sold, so informed the officers seeking to buy it, the refusal to instruct that, if the jury so found, they should acquit, was reversible error ; and the court should have instructed conversely for the state that, if defendant was in possession of the hide with authority to sell it, and offered it for sale, even though a mere employs of another, he would be guilty.
    [Ed. Note. — For other cases, see Game, Cent. Dig. § 9; Dec. Dig. <&wkey;>9.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    William Cohen was convicted of having in his possession for the purpose of sale and for offering to sell a hide of a wild deer killed in the state, and he appeals.
    Reversed and remanded.
    Davies & Davies, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen. for the State.
   PREND'ERGAST, P. J.

Under section 5 of the act approved March 13, 1911, appellant was convicted for having in his possession for the purpose of sale and for offering to sell one deer hide of a wild deer killed in the state.

There are but two questions necessary to pass upon in the disposition of this case: First, the appellant claims that the evidence is insufficient to sustain the conviction. We have carefully read the statement of facts, and cannot so hold.

His second contention is that the court erred in refusing to give, among others, his special charge to the effect that, if the jury believed from the evidence that upon inquiry made of him he first answered to the deputy game warden that the deer’s hide was for sale, but that at said time he was not in possession of it, but it was in possession of A. Cohen & Co., and that he had no authority to sell said hide, and after learning from the manager of said firm that it could not be sold, so told the officers seeking to buy it, or, if they have a reasonable doubt as to his guilt under this phase of the case, to acquit him. Without reciting it, the evidence pertinently raised this issue, and we think the court committed reversible error in failing and refusing to give in substance, said charge. On another trial, if the testimony substantially raises this issue as it did in the former trial, the court should not.only give the said charge substantially as asked by appellant, but should also in behalf of the state give the converse of the proposition; that is, that if appellant was in possession of the hide, and had authority to sell it, and offered it for sale, even though he was a clerk or mere employe of A. Cohen & Co., then he would be guilty under the law. We do not intend to give the verbiage of the charge, but merely the issue to be submitted.

For the error pointed out, the judgment is reversed, and the cause remanded.


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

text:
    Ex parte BOGLE.
    (No. 3749.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Municipal Coepoeations <&wkey;703 — Steeets — Opeeation op Automobiles — Jitney — Power to Regulate.
    Under Austin city charter (Sp. Acts' 31st Deg. c. 2), providing that the mayor and councilmen shall have all the legislative, executive, and judicial powers granted, that the council may adopt ordinances not inconsistent with the Constitution and statutes, and shall have exclusive control over streets, and power to regulate the use of same, and to regulate the speed and handling of automobiles, the city could enact and enforce such reasonable ordinances as it deemed necessary and proper to regulate the handling of automobiles, including jitneys, and the use of streets by a person owning and operating the same in the carriage of passengers for hire.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. <@c^703.]
    2. Constitutional Law <&wkey;207, 208 — Class-Legislation — Ordinances — Use op Streets — Regulation op Jitneys.
    An ordinance regulating the operation of jitneys on the streets and requiring a license and a bond as a condition precedent thereto, was not objectionable as class legislation in violation of Const, art. 1, § 3, and Const. U. S. Amend. 14, where it applied to all jitneys alike, though it did not. apply to the street car system and other automobiles and vehicles carry-I ing passengers for hire; jitneys being a class within themselves distinct from such other modes of conveyance for hire.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 625-677; Dec. Dig. &wkey;> 207, 208.]
    3. Municipal Corporations <&wkey;703— Streets —Jitney Ordinance — Validity—Creation op Liability.
    A pi-ovision of an ordinance requiring, as a prerequisite to a license to operate a jitney, that the owner file with the city an indemnity bond for $5,000, conditioned that the licensee should pay any judgment rendered against him to the extent of $2,500 for injury to, or death of, any person, or injury to the property of another, and to the extent of $5,000 for like injuries in one accident to more than one person, and fui-ther conditioned to hold the city harmless from all claims resulting to it from the granting of such license, was not objectionable as an attempt to create on behalf of strangers to the licensee and licensor a liability against the licensee «or his bondsmen.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. &wkey;>703.]
    4. Municipal Corporations <&wkey;121 —Ordinances — Validity—Right to Object.
    Where an ordinance prescribed a license fee of $50 per annum for each jitney holding five or- less, and of $75 for a seating capacity of not over seven, but more than five, and of $100 for a seating capacity of more than seven, the owner of a jitney who came within tlie $50 class only could not question the validity of the provisions for $75 and $100 license fees.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig. <&wkey;> 121.]
    5. Licenses <&wkey;7 — Ordinance—Validity —• Police Regulation — Tax por Revenue.
    Where it appeared that the salaries of extra policemen and other expenses necessitated by the operation of jitneys would proximately equal the amount expected from the license fees of $50 per annum on each vehicle with a seating capacity of five or less, including the driver, the ordinance prescribing such fee was not objectionable as being a tax for revenue for city purposes, instead of a police regulation.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    6. Licenses &wkey;?7 — Ordinances—Validity.
    That an ordinance requiring procurement of a license as a condition, to the right to operate a jitney gave the city authorities discretionary power to grant or refuse a license did not render it void.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. &wkey;7.]
    7. Municipal Corporations &wkey;>121 — Ordinances — Right to Object.
    Where a jitney owner had not attempted to procure a license and been refused, he could not object that the ordinance requiring licenses was invalid because it clothed the city with arbitrary power to grant or refuse a license, though all the fees were paid and all the requirements of the ordinance complied with.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 257; Dec. Dig. 121.]
    8. Municipal Corporations <&wkey;121 —Evidence — Burden of Proof — Unreasonableness of Ordinance.
    Where a jitney owner charged with violating an ordinance by running a jitney without a license complains in habeas corpus by him that requirements of the ordinance that he pay a license fee and give bond amount to a prohibition, the burden is on him to establish his contention.
    [Ed. Note. — For other cases, Corporations, Cent. Dig. § 257; 121.] see Municipal Dec. Dig. <&wkey;>
    Davidson, J., dissenting.
    M. Bogle was arrested for operating a jitney without the license required by ordinance of the city of Austin, and brings habe-as corpus.
    Relator remanded to custody.
    E. T. Moore, of Austin, for appellant. E. C. Gaines, of Austin, Special Counsel, J. Boul-din Rector, City Atty., and H. B. Barnhart, Asst. City Atty., both of Austin, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

In vacation Mr. Bogle applied to one of the judges of this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the chief of police of the city of Austin under a capias issued by the corporation court on a complaint filed therein August 21, 1915, charging him with that day operating a jitney on one of the public streets of the city without having a license in violation of trte ordinance making it an offense to do so, and seeking Ms discharge from said claimed illegal arrest and detention. The writ was granted and the cause set for hearing before this court in term time. The relator, Bogle, contends that said ordinance is unconstitutional, invalid, and void on various grounds.

The attacked ordinance was enacted July 6, 1915, and on its face clearly appears to be regulatory only in all of its provisions and as a whole. Long before its enactment the city had in force another permit ordinance requiring every person running any automobile on its public streets to apply to and get from its clerk a permit to do so, and requiring the payment of a fee of 50 cents therefor, and that the number of his machine be properly placed thereon. Mr. Bogle had complied with that ordinance. The city also had another drivers’ ordinance, in effect, requiring every person who engaged in the business of carrying passengers for hire in any automobile within its limits, in audition to said permit, to get a driver’s license from it, and, when granted, to pay the city tax collector a fee of $2 therefor. Mr. Bogle had also complied with that ordinance.

It is agreed herein that about 1,800 persons had taken out said permits, and that 95 of these had taken out said $2 driver’s license, but that no person had applied for license under said jitney ordinance, and that Mr. Bogle had in no way complied therewith, and had no license thereunder.

It is also agreed that there was “a further class of vehicles'” permitted to operate in carrying persons in the city under its ordinance designated as “any hack, * * * omnibus, * * * or other vehicle of any name whatever,” carrying persons for hire, and that all such “have designated stands and run only on special calls, and are not held out as running over any special route, and they charge a higher fare than jitneys”; that all these are required to pay only said $2 license fee, and no bond is required of them; that all automobiles permitted to operate in the city, whether private cars, service cars having designated stands, or jitneys, are subject to the same traffic ordinances, except such special provisions as are in said jitney ordinance relating to jitneys alone; that Mr. Bogle, on the date charged in the complaint against him, operated a five-passenger Ford automobile in the city as a jitney running on a route having definite termini of less than 35 blocks, which automobile operated by him would clearly be a jitney, as defined in section 1 of the attacked ordinance. This ordinance makes it an offense to thus operate a jitney without license, and it was for that only Mr. Bogle was arrested and held in custody by the chief of police.

It is further agreed that there was a street car system operating in the city as a carrier of passengers under a franchise; that it carries passengers and gives transfers anywhere on its lines for five cents fare. It is not required to take out license nor give bond. It is required and pays the city $1 per mile occupation tax, and the same amount to the county, and double that to the state. ltd franchise and the city ordinances require it to pave its tracks and one foot additional on each side thereof wherever the city paves, and to maintain the same space on all other streets where its tracks are laid. It has spent alone for paving in the city over $300,-000, and its annual paving is about $30,000. It pays the city $4,000 ad valorem tax, and one-half that sum to the state and county annually. Its gross receipts annual tax to the state is $1,955, and its federal income tax is $611 annually. Its total annual tax for the space of each passenger is $58.76.

The charter of the city of Austin was granted by the Legislature, approved February 3, 1909, and by a provision therein the courts are required to take judicial knowledge thereof.’• Special Laws of 1909, pp. 8-45. It provides that the mayor and four councilmen shall be known and designated as the city council, and have all legislative, executive, and judicial functions or powers granted. Among other provisions of the charter and powers given the city council are these:

Article XI, section 1:

“The city council shall be vested with the power and charged with the duty of adopting all law and ordinances, not inconsistent with the Constitution and laws of the state of Texas, touching every object, matter and subject within the purview of the local self-government, conferred by this act upon the citizens of the city of Austin.”

Article XIV, section 38:

“ * * * To make and regulate stands for vehicles at said depots and other public places.”

Article XV, section 1:

“The city council shall have power, subject to the restrictions herein contained, to make all rules, regulations and ordinances which may be necessary and proper for carrying into effect the powers specified herein.”

Article XV, section 14:

“ * * * The council may enact any ordinance not in conflict with the penal laws of the state.”

Article XIII, section 1:

“The city council shall have exclusive control over and regulation of all streets, alleys, sidewalks and highways and the public squares within the corporate limits of the city, and shall have power: * * * [Subdivision h.] To regulate the use of the same. * * * ”

Article XIV:

“The city council shall have power by ordinance: [Section 10.] To license and regulate hacks, carriage, omnibusses, wagons and drays, and to fix the rate to be charged for the carriage of persons and for the wagonage, cartage and drayage of property. * * * [Section 32,] To regulate the speed and handling of automobiles.”

Under these powers and authority, we think unquestionably the city had the power and authority to enact and enforce any and all reasonable ordinances which it deemed necessary and proper to regulate the handling of automobiles and the use of the streets by persons owning or operating the same in the carriage of passengers for hire. A jitney is an automobile, both in fact and so agreed herein, and as specially defined by section 1 of said ordinance; in fact, as we understand, appellant concedes that the city council had power and authority to pass all reasonable ordinances regulating the jitney and the operation thereof on the streets of the city.

However, the first ground of his attack on said jitney ordinance is substantially this: That section 1 of said ordinance, when considered in connection with other ordinances and the testimony, violates section 3, art. 1, of our state Constitution and the fourteenth amendment of the Constitution of the United States, in that it discriminates between the rights of the same class, and places a greater burden upon one than another of the same class, and that whether the amount charged be a tax or license fee.

In the recent case of Ex parte Sullivan, 178 S. W. 537, we discussed an ordinance of the city of Ft. Worth, Tex., of which the ordinance attacked herein is substantially and practically the same, and therein held, as we do in this case that the said ordinance violates neither our state Constitution nor the Constitution of the United States in this particular. What we said in the Sullivan Case on that subject specially applies to this case. We think there can be no question but that the jitney, as defined in the ordinance herein and as operated by Mr. Bogle, is a class within itself, separate and distinct from both the street ear system and other automobiles or vehicles whidh have stands as described above. In addition to the Sullivan Case and authorities therein cited, we cite Ex parte Cardinal (Cal.) 150 Pac. 348. By the ordinance all jitneys are treated exactly alike, and neither within that class is treated in any way whatever different from another.

He next attacks sections 9, 10, and 11 of said jitney ordinance, requiring a bond, claiming that it is beyond the power of the city, and its charter confers no right, either express or implied, to create a cause of action in behalf of individuals strangers to the licensee or licensor or to provide a remedy for such, or to insure or indemnify the city for damage or loss, unless the same is of such a nature as to render the city liable either by statutory or common law; and by the terms of the ordinance and conditions of the required bond it affirmatively appears that the damage or loss sought to be guarded against is not of this character. These sections of the ordinance, in effect, as a prerequisite for a license to operate a jitney, require that for each jitney the owner, etc., shall procure and file with the city an indemnity bond or policy of insurance in the sum of $5,000, conditioned that the licensee shall pay any judgment of court finally rendered against him, etc., to the extent of $2,500 on account of injuries to or death of any person or injury to the property of another and to the extent of $5,000 for like injuries occurring in one accident to more than one person caused by the negligence of such licensee, etc., and further conditioned to hold the city harmless from any and all claims, etc., resulting to it from the granting of such license. This bond can be made by either a surety company authorized to do business in this state or by personal security. Neither these sections nor the ordinance as a whole, as we understand it, in any way creates, or attempts to create, in behalf of any person, any liability against the licensee or his bondsmen, but it merely provides as one of the reasonable regulations of the licensee that he shall provide by such bond or indemnity a means to satisfy the loss to such one as may be damaged by him finally rendered by a court. It in no way prescribes any contingency under which the licensee should be liable to any person for any negligence whatever committed by him or other act by him. The city would have no right to create that kind of cause of action, and, as stated, it does not attempt to do so.

It is agreed herein that the city of San Antonio, Tex., had an ordinance regulating jitneys, wherein it required as a prerequisite to a license that the jitney owner should execute a bond in the sum of $10,000, with the conditions thereof somewhat like the conditions of the bond of the ordinance herein attacked, and that also the city of Et. Worth, Tex., had a like ordinance requiring a bond in the sum of $2,500, with somewhat of the same conditions; that in the city of San Antonio, under the ordinance of that city, 91 such bonds as there required had been given, and under the ordinance of the city of Ft. Worth 89 bonds as there required had been given.

In the Sullivan Case, supra, we held that the bond required therein was a proper regulation. We likewise hold in this case that the bond required herein is a reasonable regulation, not void nor unconstitutional on any ground, and is a proper regulation, as shown in this case is the city of Austin. In addition to the authorities cited on this point in the Sullivan Case, we now cite case Ex parte Bell, 24 Tex. App. 428, 6 S. W. 197; Greene v. San Antonio (Civ. App.) 178 S. W. 6; Ex parte Cardinal, supra.

In this connection, and others as well, it was further agreed herein: That prior to the passage of the jitney ordinance attacked there were about 60 jitneys running in the city. Some of them had inexperienced or reckless drivers, and few of them had any financial responsibility, except some owned the Ford car operated. These jitneys traversed the most traveled streets of the city, and largely confined their traffic to. the paved or best graded or graveled streets, and practically paralleled all the street railway lines, and in going their usual route all, or about all, of them traversed certain mentioned streets, which are the principal streets of the city and in the most congested centers of ordinary traffic, and tended to greatly congest the traffic of said streets. That during the 60 days prior to the passage of said ordinance there were a number of accidents due to the jitneys. That the city council, in view of the traffic conditions brought about by the advent of the jitney and of the accidents due to their presence and their menace to the general safety of the public, deemed that there was an imperative and urgent necessity for the passage of said jitney ordinance.

It is further agreed herein that the jitney traffic in the city is a business done, carried on, and operated solely upon the public streets and thoroughfares of the city, and is largely confined to the paved streets and best graded and graveled streets, and that the jitney is a new and hazardous kind of passenger traffic, and the danger to individual accident and injury is greater, and that the number of accidents in proportion to the number of passengers carried and injuries has, in fact, been greater in this line of passenger traffic than in any other commonly used.

It was further agreed that, by reason of the new and hazardous nature of the jitney service, very few surety or indemnity companies would undertake such security until the class, character, and nature of the service have been reduced to a system (that it was not meant thereby that thereafter either of said bonds could or could not be given under said jitney ordinance), and that a personal bond could ordinarily be given only by a careful driver known to his sureties to be temperate, cautious, and reliable; that the said bonds given in the cities of San Antonio and Ft. Worth were made by an indemnity company. It was further agreed that application was made in behalf of the Austin jitneys to certain named indemnity companies without success, and that a certain other company would write a policy on autos carrying passengers for hire, but would not write a policy under the ordinance attached.

The next ground of attack is of section 7 of said ordinance, which prescribes a license fee of $50 per annum for each jitney with a seating capacity of five or less, including the driver, and of $75 for a seating capacity of not more than seven, but more than five, including the driver, and of $100 for a seating capacity of more than seven persons, including the driver, claiming that these fees are not license fees, but an evasion of the law, and, in fact, a tax for revenue for city -purposes, and not as a poiice regulation.

So far as the relator is concerned, he is in no position to attack said section of the ordinance for the amount of the latter two fees, because it is conclusively shown that he comes within the $50 class only, and we do not pass upon those features of that section prescribing the $75 and $100 amount of license fees. On this point, in addition to the agreed facts above recited, is this further agreement: That the carrying out of said jitney ordinance will require the printing of blanks and stationery for licenses, applications, bonds, and such other matters as are named in the ordinance, and will require more clerical labor, all at an expense to the city that cannot now be estimated, and that the policing of the ordinance will require two, or possibly three, extra policemen at a salary of $&0 each per month, including a motorcycle man and cost of the motorcycle, all at an additional expense of probably $2,500 a year, if the same number of jitneys were in operation, and that in fixing the amount of said license fees the council did not expect the sum realized therefrom to more than pay the expenses of policing and enforcing said ordinance, and did not expect to or contemplate the realizing of any revenue to the city over and above the additional expense caused by the proper enforcement of said ordinance. We think that this demonstrates that the said $50 license fee was, in truth and in fact, a license fee only, and not a tax to provide an extra revenue, and that this section of the ordinance is unquestionably valid. Ex parte Sullivan, supra, and authorities there cited.

In the next attack on the ordinance he claims that, as a whole, it is unreasonable, and clothes the city with arbitrary power to grant or refuse a license though the fees are paid, and all the requirements thereof complied with by an applicant for a license. This question was also discussed and passed upon in the Sullivan Case, supra. We see no necessity of further discussing it here. The attacked ordinance herein is in no essential particular different from the Ft Worth ordinance passed upon in the Sullivan Case. The relator is not in a position to attack the ordinance on that ground, anyway; for it is conclusively shown that he has in no way attempted to procure a license and been refused on any ground. However, we might say that, if even he was in a position to attack the ordinance on this ground, we see nothing in it but a reasonable and proper regulation, and we see nothing in it which would authorize or justify this court to hold the ordinance, or any provision of it, void on that ground.

His next attack on the ordinance is his claim that the difficulty of complying with its requirements practically amounts to a prohibition, and that the amount of the fees required to be complied with before the bond can be given and the terms and amount of the bond are requirements which cannot be complied with. The relator’s contention on this point cannot be sustained. The whole agreed facts indicate that, if he is a proper person to operate a jitney under said ordinance, he may reasonably comply therewith, and that its provisions do not amount to a prohibition. The burden is on him to show what he claims, and not on the state or city to show otherwise. In the agreed facts as a whole, we think it is shown that he can reasonably comply therewith, and hence the ordinance is not void on this ground.

1-Iis last contention is that, the arbitrary power' preceding the issuance of license and the. power reserved by the city to cancel it and throw him out of business at any time discourages the investment necessary to go into business, and tends to, and does, prevent competition and results in building up a monopoly in behalf of the street car company. We think it unnecessary to discuss this general attack of the ordinance. We see nothing in it that would sustain the relator’s contention. On the contrary, we see from it only the proper and reasonable regulation of the business and the proper requisites of persons only who should be authorized by the city to operate jitneys on its streets. It may be that some persons would experience some difficulty in complying with the ordinance, but no more so than any other like hazardous and dangerous business.

We have carefully investigated this ordinance and the relator’s attack of it and the questions raised by him, and reviewed the Sullivan Case, supra, and the authorities therein cited, and have reached the conclusion that there is nothing in the ordinance herein attacked that would in any way legally permit or authorize this court to hold it invalid. On the contrary, it. is our opinion that the said ordinance, in the particular attacked wherein relator is in position to attack it, is valid and constitutional, under the agreed statement of facts on file.

It is therefore ordered that the relator be remanded to the custody of the city marshal.

DAVIDSON, J.

I cannot concur. I wrote fairly fully in the Sullivan Case my views of disagreement. I may write in this case later.
      <gc^E’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «gsssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BENITO v. STATE.
    (No. 3800.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-well, Judge. Benito, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the absence of the testimony. The judgment is affirmed.


text:
    CASE v. STATE.
    (No. 3597.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    Appeal from Disti'ict Court, Rains County; William Pier-son, Judge. Buck Case was convicted of rape, and he appeals.
    Affirmed.
    W. W. Berzett, of Emory, and Campbell & Mansell, of Alba, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of rape, and assessed the lowest punishment. There is no bill of exceptions nor statement of facts. In the absence of these there is no question which can be reviewed. The judgment is affirmed.


text:
    GOODMAN v. STATE.
    (No. 3688.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Bertha Goodman was convicted of robbery, and she appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for robbery, with 25 years in the penitentiary assessed as her punishment. There is neither a bill of exceptions nor a statement of facts. Nothing is raised which can be reviewed in the absence of these. The judgment is therefore affirmed.


text:
    JOHN v. STATE.
    (No. 3797.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-well, Judge. John, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant in this case was fined $10 for gaming, the lowest penalty prescribed by law. There is neither a statement of facts nor a bill of exceptions in this case. No question is raised which can be reviewed in the absence of these. The judgment therefore is affirmed.


text:
    MICKEY v. STATE.
    (No. 3807.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge. Richard Mickey was convicted of arson, and ho appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of arson, and his punishment assessed at 5 years in the penitentiary. There is no statement of facts and no bill of exceptions. In the absence of these nothing is presented which we can review. The judgment is affirmed.


text:
    MIKE v. STATE.
    (No. 3796.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-well, Judge. Mike, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

The appellant in this case was fined $10 for gaming, the lowest penalty prescribed by law. There is neither a statement of facts nor a bill of exceptions in this case. No question is raised which can be reviewed in the absence of these. The judgment therefore is affirmed.


text:
    PELATA v. STATE.
    (No. 3798.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-well, Judge. Pelata, a Mexican, was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the absence of the testimony. The judgment is affirmed.


text:
    RODREGUEZ v. STATE.
    (No. 3801.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-well, Judge. Jose Rodreguez was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $10. No statement of facts or bill of exceptions accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the absence of any testimony. The judgment is affirmed.


text:
    SEGUIN v. STATE.
    (No. 3694.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from Bexar County. Court; Nelson L3'tle, Judge. Mariano Seguin was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction for unlawfully carrying a pistol, with the lowest penalty assessed, this appeal is prosecuted. There is no statement of facts or bill of exceptions, and nothing is raised in the record which we can review. The judgment is therefore affirmed.


text:
    SLOAN v. STATE.
    (No. 3678.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from Johnson County Court; B. Jay Jackson, Judge. Henry Sloan was convicted of making a sale of intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of making a sale of intoxicating liquors in prohibition territory. The record contains neither a statement of facts nor any bills of exceptions; consequently there is nothing to review, the indictment charging an offense. Affirmed.


text:
    STRANGE v. STATE.
    (No. 3706.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Appeal from McLennan County Court; Geo. N. Denton, Judge. Sheb Strange was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an aggravated assault, and fined $75. There is no statement of facts in the record, and nothing is presented which can be reviewed in the absence of this. The judgment is therefore affirmed.


text:
    TOLLIVER v. STATE.
    (No. 3671.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Jim Tolliver was convicted of a public offense, and he appeals.
    Affirmed.
    0. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The record before us contains neither a statement of facts nor any bill of exceptions. The information charges an offense against the laws of this state, and there is no question presented we can review. Affirmed.


text:
    TREUBINE v. STATE.
    (No. 3799.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Appeal from Ellis County Court; W. M. Tid-Judge. Joe Treubine was convicted of gaming, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any bills of exception accompany the record. The information charges the offense of which appellant was convicted. No ground is stated in the motion for a new trial we can review in the absence of the testimony. The judgment is affirmed.


text:
    WILLIS v. STATE.
    (No. 3702.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Appeal from District Court, El Paso County; W. D. Howe, Special Judge. C. E. Willis was convicted of burglary, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of burglary, and assessed the lowest punishment. There is no statement of facts, nor any bills of exceptions. Nothing is presented which can be reviewed by this court. The judgment is therefore affirmed.


author: PHILLIPS, J.

text:
    RUST v. TEXAS & P. RY. CO.
    (No. 2422.)
    (Supreme Court of Texas.
    Nov. 17, 1915.)
    Courts <&wkey;247 — Jurisdiction—Amount Involved-Consolidated Suits.
    Under Rev. St. art. 2182, providing that whenever several suits may he pending in the same court by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which they are pending may, in its discretion, order them to be consolidated, where plaintiff brought three suits before a justice of the peace against a railway company for damages, the justice properly consolidated two of such suits, and on appeal the county . court properly consolidated the third suit with such two suits, and this constituted the consolidated causes one suit, to be prosecuted as such, and the jurisdiction of the Court of Civil Appeals was determinable according to the sum of the amounts involved in the three suits as originally brought.
    [Ed. Note — For other eases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. &wkey;247.]
    Certified Question from Court of Civil Appeals of Second Supreme Judicial District.
    Action by G. W. Rust against the Texas & Pacific Railway Company. Prom a judgment for defendant, the plaintiff appealed to the Court of Civil Appeals, Second District, which certified a question to the Supreme Court.
    Question answered.
    J. R. Stubblefield, and R. D. Rust, both of Eastland, for appellant. Earl Conner, of Eastland, for appellee.
   PHILLIPS, J.

The statement of the case made by the honorable Court of Civil Appeals is as follows:

“On April 26, 1911, G. W. Rust filed with the justice of the peace of precinct No. 1, Eastland county, his claim for damages in the sum of $99.95 against the Texas & Pacific Railway Company, on which date citation was issued to the defendant company. Said suit was numbered 1929. On May 26, 1911, the same plaintiff filed two suits against the same defendant in the same justice’s court, being Nos. 1937 and Í939, respectively, each seeking to recover the sum of $99.95, and on the last-named day citations were duly issued to the defendant. Thereafter .the justice of the peace made an order upon the motion of the defendant to consolidate the last two causes. On June 3, 1911, cause No. 1929 was finally tried, and on June 28th the consolidated cause was also tried, resulting in a judgment in each case against the plaintiff. The cases were then appealed to the county court of Eastland county, where, on September 19, 1911, on motion of the defendant railway company, the two causes thus appealed were, by order of the county court, consolidated, and on the following day a final trial was had, resulting, as in the justice’s court, in a judgment for the defendant. The plaintiff, G. W. Rust, duly perfected his appeal to this court by filing his appeal bond on November 10, 1911, his motion for a new trial having been overruled October 26, 1911. No transcript was filed within the time allowed by law, and the appellee, the Texas & Pacific Railway Company, has filed its motion, asking an affirmance of the judgment on certificate.”

The question certified is whether the Court of Civil Appeals had jurisdiction of the amount involved by reason of the consolidation in the justice court, or later in the county court. There can he no doubt that the consolidation of the two causes in the justice court was proper, as was that in the county court of the cause thus made with the other cause there pending. Article 2182, R. S. This constituted the consolidated causes one suit, to be prosecuted as such (Castro v. Whit-lock, 15 Tex. 437), with the aggregate of the amounts involved within the jurisdiction of the county court. The jurisdiction of the Court of Civil Appeals was therefore determinable according to the sum of the amounts involved in the three suits as originally brought. This is clearly the effect of the holding in Security Company v. Panhandle National Bank, 93 Tex. 575, 57 S. W. 22. There, two suits had been brought in the district court, each seeking the recovery of $1,000, exclusive of interest, and each, therefore, cognizable by the county court, but of which the Supreme Court, for that reason, was without jurisdiction. They were consolidated in the trial court. The case reaching the Supreme Court, its jurisdiction was challenged on the ground that each of the suits could have been brought in the county court. It was held, however, that as the sum of the two amounts originally sued for exceeded $1,000, exclusive of interest, a suit for which could not have been brought in the county court, the Supreme Court had jurisdiction of the case. It was decided, in other words, that its jurisdiction was to be determined by the total of the amounts involved after the consolidation of the suits in the trial court. There could be no sound reason for so determining the jurisdiction of the Supreme Court in such a case, and not applying the same rule in the decision of the present question.

The holding in Brown v. Cates, 99 Tex. 133, 87 S. W. 1149, is, we think, without application to a case like the present one. The original suit, there, was Field’s suit against Cates, to recover, for breach of a warranty of title to a lot, a sum less than $1,000. Brown was in some way made a party to the suit, presumably on a plea over by Cates, who set up a separate debt due him, not by Brown, but by the estate of E. F. Field, deceased, and sought a foreclosure of a lien upon the lot given to secure the debt, subject to which Brown was alleged to hold the property. This introduced into the suit a distinct cause of action, between other than the original parties, in no way dependent upon the original suit. And for that reason it was held that as the Supreme Court had no jurisdiction as to the suit between Field and Cates, the joinder of the controversy between Cates and Brown, as to which it did have jurisdiction, would not confer jurisdiction over it. The basis of the holding, it is to be gained from the opinion, was that the controversies were distinctly separable. In the present ease, the order of consolidation having been properly made, there remained no separable cause of action. It became but one suit; and we can perceive no reasonable objection to determining tbe jurisdiction of tbe appellate court according to the amount involved, considering it as sucb.

We accordingly answer that tbe Court of Civil Appeals bad jurisdiction of tbe amount involved in tbe suit as constituted by tbe consolidation in tbe county court. ;
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author: YANTIS, J.

text:
    YNDO v. RIVAS et al.
    (No. 2418.)
    (Supreme Court of Texas.
    Nov. 24, 1915.)
    1. Limitation of Actions <&wkey;49 — Accrual of Cause of Action — Poem of Action — Implied CONTRACT.
    Plaintiff was surety for decedent on several notes which on February 18, 1904, were merged into one negotiable note, payable to the creditor, signed by plaintiff alone. Plaintiff paid the note in 1907, and on June 1, 1908, brought suit against decedent's representatives, seeking a reimbursement of the principal of the note and interest. Held, that the suit was not one upon the note, or any written obligation, but on an implied contract for reimbursement as to which the two-year statute applied; and, since the payment of decedent’s debt occurred when the note was given, and not when it was paid, plaintiff’s cause of action was barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 266-272; Dec. Dig. ■<S=»49.]
    '2. Payment <&wkey;18 — By Note — Debt of Third Person.
    Where plaintiff, who had been surety on notes of decedent, executed and delivered his negotiable note for the amount of the debt, secured by a mortgage on his realty, whereupon the debtor and payee refused to look further to the decedent for the debt, the giving of the note and mortgage was an immediate payment and satisfaction of decedent’s indebtedness.
    [Ed. Note. — For other eases, see Payment, Cent. Dig. §§ 78-85; Dec. Dig. &wkey;18J
    3. Dimitation of Actions &wkey;>150 — New Promise.
    In such case a subsequent promise of the original debtor to pay the plaintiff’s note, or to pay plaintiff if he had paid it, when he sold a certain corner lot, without any agreement by plaintiff to extend the time for reimbursement, •was not a contract or new promise suspending the operation of the statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 610-613; Dec. Dig. <&wkey;>150.]
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.
    Action by Manuel Yndo against Antonio Rivas and others. Judgment for defendants was affirmed by the Court of Civil Appeals (142 S. W. 920), and plaintiff brings error.
    Affirmed.
    S. G. Hamblin and D. A. McAskill, both of San Antonio, for plaintiff in error. Bertrand & Arnold and R. S. Cozby, all of San Antonio, for defendants in error.
   YANTIS, J.

Several questions are presented in tbe petition for writ of error, but it is only necessary for us to consider tbe one involving tbe statute of limitation, it appearing from the evidence, without material contradiction, that tbe cause of action alleged by tbe plaintiff in error is barred by tbe two-year statute of limitation. Plaintiff in error sued F. A. Chapa personally and as independent executor of tbe estate of Antonio ; P. Rivas, deceased, and tbe other children and heirs of said Antonio P. Rivas, alleging be was a surety for Rivas on several notes, which were afterwards merged into one note, and made payable to A. B. Frank, which last note was signed by himself alone, and was executed and delivered by him to A. B. Frank, in lieu of Antonio Rivas’ said other notes, on tbe 18th day of February, 1904. This note was paid by plaintiff in error in August or September, 1907. He sues to have reimbursement in tbe sum of $3,389.67, which was tbe principal of said note, and also to recover the interest which be bad paid thereon. In bis said suit he also sought to have rescinded a deed from A. P. Rivas, deceased, to bis wife, Maria Q. Rivas, now deceased, dated April 16, 1888, conveying to her lot No. four, block No.-, city block No. 150 corner Laredo and Houston streets, in tbe city of San Antonio, and to subject said property to tbe payment of said debt, on tbe ground, alleged, that said lot was bis separate property, and that be conveyed it to bis said wife as bis agent, and it was to be held by her for bis own use and benefit. If tbe debt on which suit was brought herein by tbe plaintiff in error is barred by limitation, as we think tbe evidence shows as a matter of law, it follows that it will be unnecessary to decide tbe several questions raised as to tbe ownership and disposition of said lot.

Tbe original suit was filed on June 1, 1908. Tbe note sued on was made February 18, 1904. The suit was filed more than four years after tbe payment of Rivas’ debt to Frank if tbe execution and delivery of said note by Yndo to Frank is to be considered a payment of Rivas’ debt. Tbe said note by Yndo was actually paid by Yndo to Frank in August or September, 1907. If tbe latter date should be considered tbe date of payment of Rivas’ debt, then limitation began to run on said date, and tbe debt would not be barred. If tbe date Yndo executed and delivered said note which took up all of Rivas’ notes should be considered tbe day of payment, then limitation began to run on said date, and bad run for more than four years before any suit was filed, and in sucb case bis suit for reimbursement would be barred whether tbe two-year or four-year statute applied, though we hold that tbe two-year statute would have application, since in sucb circumstances tbe suit is on an implied contract for Rivas to refund tbe money which Yndo bad paid for him, and is not upon the note or any written obligation. Faires v. Cockerell, 88 Tex. 437, 31 S. W. 190, 639, 28 L. R. A. 528; Willis & Bro. v. Chowning, 90 Tex. 622, 40 S. W. 395, 59 Am. St. Rep. 842.

It is contended by tbe plaintiff in error that his execution of and delivery to Frank of the note sued on was not a payment or discharge of Itivas’ debt to Frank, but that Yndo signed said note, though alone, as surety for Rivas, or that at least there was sufficient evidence to require the submission of the issue to the jury, and that the peremptory instruction which was given in favor of defendants in error should not have been given. But a careful investigation has convinced us that there is no evidence of probative force, if indeed there is any at all, tending to establish that Frank did not accept Yndo’s note in full discharge of Rivas from any further liability. It appears that Rivas was willing to continue on the note, but that he had renewed several times, and that for some reason, presumably satisfactory to himself, Frank did not want Rivas on the note any longer, and declined to permit him to sign it, but took a note by Yndo, the surety on the previous notes, alone, and required him to give, which he did, a mortgage on real estate to secure the payment.

The honorable Court of Civil Appeals in its findings of fact quotes all the evidence in the record, so it certifies, tending to prove that Frank did not accept Yndo’s new note in satisfaction of Rivas’ liability on the obligations which he had owed to Frank. It is as follows:

“We present all the evidence introduced by plaintiff to avoid the plea of limitations. The first witness was Mr. Seelig Deutschman, an attorney, who stated: ‘Mr. Rivas told Mr. Yndo: “I will never owe you a dollar as long as I have got a dollar, and if I die, after I am dead, my children will pay it, if I don’t have time before, and this is an honor debt. I was administrator for these children, and I used this money, and I want to get you to do me the favor to let me pay the Flores judgment out of this, and I will pay you.” He says, “if you will let me pay, if yon will allow me to pay with this money the Flores judgment, I will promise you that when I sell that comer out of the proceeds of that sale the money shall be paid to A. B. Frank, every dollar, or to you, or to you if you pay it for me. * * * ” The next matter we had up with Mr. Rivas was in connection with the beginning of the widening of Houston street. * * * Mr. Rivas said if the street was widened the property would come into the market and bring a good price, and he said: “When the street is widened and the property sold, I intend to pay the debt to A. B. Frank and interest Mr. Yndo paid for him, * * * 18 months, I guess, before -he died, or maybe a little less. Why I wrote him a note one day to come to see me and try to arrange our matters in some shape. * * * He said he had gotten my letter, that he didn’t think he cared to put the property in any shape where its record would be incumbered in any way, but that he was going to draw a will, a paper, and in that paper provide what he intended to do, and intimated he wanted me to draw the paper, but gave me no positive instructions, except he told me the way he wanted the paper drawn, * * * and that in that will he would provide that the Yndo matter be settled, the Yndo-Frank matter be settled. * * * The people were close friends. * * * The old fellow a short time afterwards became paralyzed.” He was the attorney for Rivas to file the will for probate. The will did not provide for the payment of the debt. And F. A. Chapa qualified as the executor under said will on the 30th day of March, 1907.’
“Again Mr. Deutschman said: ‘Mr. Yndo asked Mr. Rivas to take care of at least a part of the Frank debt, and Mr. Rivas told him he could not possibly do it out of this money. A judgment had been obtained against him, and was a debt of honor, means used by him. belonging to some minors, and he must pay it, “and want you to know I am not going to beat you folks out of one single debt or one dollar’s interest you pay out for me, and I will pay the Frank debt if you pay it. I will see you get the money back;” and he said: “That corner is mine, and whenever that corner property is sold I am going to pay you that money.” I didn’t file suit because the relations between Yndo and Rivas were closer than brothers born and raised together, and Yndo worshipped the ground Rivas walked on, and -would have laid down — given him the last dime.’
“Mr. F. M. Giraud, city engineer of San Antonio, stated: ‘The Yndos and Rivas were great friends during their lifetime. The last time I saw Antonio P. Rivas he was very old; could hardly walk. I had a talk with Antonio P. Rivas with reference to Mr. Yndo and Mr. A. B. Frank. He asked me about Mr. Yndo, if he was well, said he (Rivas) expected to die soon, and wanted to have a settlement with Mr. Yndo; that he owed him an amount and wanted to pay him before he died. And he had that house at the comer, he did not owe anybody, and he had to pay him. He said if he died soon and didn’t pay it, he was going to request the family to pay it.’
“Manuel Yndo, on cross-examination by ap-pellee, said: ‘The reason I did not file suit before Rivas’ death was that I was depending upon his promises and when he died he left no arrangements for this, for the settlement of the matter. That is when I brought this suit.’
“Mr. Deutschman, being recalled, among other things, stated: ‘If there was any conflict in what I stated yesterday and the statement I have just made hereinabove about the verbal agreement, then the last statement is the correct version. Rivas promised to pay Yndo every dollar paid for him, to pay it out of the sale of that house. I-Ie did not state then when the house was going to be sold, but then after-wards he said when the house would be sold, it would be paid. He didn’t state what particular time he was going to sell the property. He said that was the only thing he had left that was unincumbered, had nothing but it, but he would pay it out.’ ”

From the foregoing statement of the facts, most favorable to the plaintiff in error which can be found in the record, we cannot conclude that any proof was made in the case to support his contention that the note executed by Yndo in lieu of Rivas’ previous obligations was not in satisfaction and discharge of such original indebtedness. We think it was a payment thereof, as complete and perfect as if it had been made with money. It is conclusively so, since the payment was with a negotiable note and not with nonnegotiable paper, and since Frank, the creditor, refused to look further to Rivas for the debt, and, instead, required Yndo to give his own promissory note, and required its payment to be secured with a mortgage on real estate. This view is amply fortified with authorities. Boulware v. Robinson, 8 Tex. 327, 58 Am. Dec. 117; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 191, 639, 28 L. R. A. 528; Willis v. Chowning, 90 Tex. 617, 40 S. W. 396, 59 Am. St. Rep. 842; Neale v. Newland, 4 Ark. 506, 38 Am. Dec. 43.

To avoid the statute of limitation, the plaintiff in error alleged, by second amended petition, which was filed February 14, 1910, nearly sixteen years after the payment of Rivas’ debt by Yndo, construing, as we do, the giving of his individual note, and a mortgage to secure it, to be a payment, that Rivas promised Yndo to pay the note to Frank, or to pay Yndo if he had paid the note, when he sold a certain corner lot, which is the one described in plaintiff in error’s petition, and that this was a contract extending the time of payment until the indefinite date of selling said lot. The only evidence which could be considered as bearing upon this is the evidence quoted aforesaid, and we cannot find in it any agreement by Yndo consenting to such extension. There is no evidence that he agreed to so extend the time in which to reimburse him. The most he did was to allow Rivas to make such statement to him, when Yndo would request him to pay. This cannot be held as a contract between them, but the delay in payment was a mere forbearance on the part of Yndo, and did not obligate him not to sue at any time he might desire to do so. There was no evidence of a contract of extension. The mere promise of Rivas to pay at such indefinite time did not constitute a contract. We accordingly overrule this contention, and hold the evidence was insufficient to require such issue to be submitted to the jury. As the cause of action sued on was barred by limitation, the trial court did not err in giving a peremptory instruction in favor of the defendants in error, regardless of the other questions involved.

The judgment of the district court and that of the honorable Court of Civil Appeals should be affirmed; and it is so ordered.

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