author: KEY, C. J.

text:
    WILLIAMS v. SWEATT.
    (No. 6006.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1919.)
    1. Specific Performance @=>121(5) — Evidence — Yerbal Contract — Possession and Improvement.
    In suit for specific performance of verbal contract for sale of land, evidence that plaintiff entered and retained possession, and placed valuable and permanent improvements in reliance on contract, 7teW to support findings for plaintiff on such questions.
    2. Specific Performance @==>47 — Verbal Contract of Sale — Improvements—Insignificant Character.
    Where buyer of land by verbal contract took possession and made permanent improvements, consisting of a house or shed, a well, corrals, fencing, grubbing, and clearing land, of a total value of $750, such improvements were sufficient to justify specific enforcement of the verbal contract of sale.
    3. Specific Performance @=>123 — Yerbal Contract of Sale — Instruction.
    In suit for specific performance of verbal contract to sell land, trial court properly refused defendant’s requested instruction, requiring jury to find rental value of land while plaintiff was in possession.
    Appeal from District Court, Crockett County; C. E. Dubois, Judge.
    Suit by E. P. Sweatt against T. M. Williams. Erom judgment for plaintiff, defendant appeals.
    Affirmed.
    N. W. Graham, of Ozona, and Wardlaw & Elliott, of Sonora, for appellant.
    Hill & Hill, of San Angelo, and Miles E. Sedberry, of Eldorado, for appellee.
   KEY, C. J.

The nature and result of this suit are stated as follows in appellant’s brief:

“This suit was brought in the district court of Crockett county, Tex., by the appellee, E. P. Sweatt, and against the appellant, T. M. Williams, for the enforcement of a specific performance of an alleged verbal contract for the sale of some 1,413 acres of land on Live Oak creek, in Crockett county, Tex., by the appellant to the appellee, and, in the alternative, for damages for breach of such contract of sale.
“In his first amended original petition, filed on October 16, 1917, in lieu of his original petition filed on March 3, 1917, the plaintiff below alleged:
“First. That on or about the 20th day of April, 1915, he entered into a verbal contract with the defendant, appellant here, by the terms of which he agreed to purchase from defendant, and defendant agreed to sell and convey to him, the following lands situated in the western part of Crockett county, Tex., to wit, six sections of school land (describing same), together with 1,280 acres of patented land, lying east of said school land, said patented land to be bounded on the south by the 1,280 acres of patented land theretofore conveyed by T. M. Williams and wife to W. T. Brown on' March 6, 1915, and to run west to the west line of defendant’s patented land, composed of survey No. 19 in the name of Malcolm Johnson, and to run a sufficient distance north to include 1,280 acres lying west and adjacent to Live Oak creek. That at the time said trade was made the north line of W. T. Brown’s 1,2S0 acres, had not been located upon the ground, but that defendant took plaintiff upon the ground and showed and represented to plaintiff where the south line of said 1,280 acres of patented land, or $4,480, one-tenth in cash, or come, and guaranteed to plaintiff that plaintiff’s south line and Brown’s north line would not fall farther north than a certain draw running into Live Oak creek, and that said 1,280 acres so purchased by plaintiff would be bounded by a line beginning at said point so shown plaintiff by defendant, being the said draw, and running west to the west line of defendant’s patented lands, thence north with the west line of defendant’s patented land to a point from whence a line run to the middle of Live Oak creek and thence down the middle of said creek to the", place of beginning would contain 1,280 acres.
“Second. That plaintiff agreed to p.ay $2,500 in cash, or its equivalent, for the school land, and assume the balance due the state of Texas thereon, with interest from November 1, 1914, and to pay $3.50 per acre for the 1,280 acres patented land, or $4,480, one-tenth in cash, or its equivalent, and the balance in nine equal annual installments, with 6 per cent, per an-num interest. That defendant agreed to convey the said land to him by warranty deed, and to execute and deliver said deed as soon as he could have the land surveyed and obtain field notes therefor.
“Third. That he, relying upon said contract and the defendant’s representations as to the location of the south boundary line of said land, on or about May 10, 1915, with defendant’s acquiescence and consent, took possession of said land, and soon thereafter paid the cash purchase money, or its equivalent, which the defendant accepted and still retains, and that he placed valuable and permanent improvements upon the 1,280 acres of patented land, consisting of a house or shed, a well, corrals, fencing and grubbing and clearing land, of a total value of $750, all of which improvements were placed upon said land by plaintiff in reliance upon said contract and defendant’s representations as to the location of the land, and prior to the time the defendant refused to make conveyance of the land to plaintiff. That plaintiff is now, and has been at all times since his entry, in possession of said land.
“Fourth. That defendant did, on July 15, 1915, convey to plaintiff by deed the scho.ol land, and thereafter began to have the patented land surveyed, but, finding by a survey that the south line of the 1,280 acres so sold to plaintiff was not situated where defendant had represented that it would be, the defendant then represented to plaintiff that he would procure from Brown enough land lying south of Brown’s north line and convey same to plaintiff, so as to allow the land sold to plaintiff to reach and extend as far south as defendant originally represented it would extend. That, having failed to procure said land from Brown, the defendant bn or .about September 19, 1916, proposed to plaintiff, as a compromise and adjustment of the matter, to sell and convey to plaintiff, instead of the 1,280 acres, all of the land lying north of that certain fence running from the southwest corner of the Malcolm Johnson survey to Live Oak creek, built by the plaintiff and Brown, and south of the north or northeast line of said Johnson survey and a line extending from the north or northeast corner of said Johnson survey due east to Live Oak creek, and bounded on the east by Live Oak creek and on the west by the west boundary line of said Johnson survey, describing the same by field notes, containing 1,413 acres of land. That defendant proposed that if plaintiff would accept same, defendant would procure title from Brown to the 280 acres, and convey same, together with the remaining 1,133 acres, to plaintiff immediately; plaintiff to pay to defendant the same price for the 1,133 acres, and upon the same terms as originally agreed upon as to the 1,280 acres; and that plaintiff accepted the proposition. But that the defendant, on or about October 20, 1916, finally failed and refused to make plaintiff a deed to said patented land.
“Fifth. That defendant placed plaintiff in possession of the 1,413 acres of land, and that plaintiff has l;ad possession at all times since. That plaintiff’s improvements are upon the 1,413 acres, and that he is ready and willing to pei’form his contract of purchase.
“Sixth. In the event it should be found that plaintiff is not entitled to have the contract specifically performed, then for cause of action he alleges that he purchased from defendant the six sections of school land and the patented land as a whole and in one body and in one and the same contract; that the school land is situated off and away from Live Oak creek, from which stock pastured on the school lands are watered, and that there is no other water on or accessible to said school lands, the said school lands lying west from said creek at distances from one to four miles and that the patented land lies adjacent to and bordering on said creek, and between the creek and the school lands; that plaintiff in purchasing the school lands relied upon Ms agreement for the purchase of the patented land, and that the defendant knew the situation of the school lands and patented land with reference to the creek, and well knew that plaintiff, in purchasing the school lands, did so in reliance upon his contract to purchase the patented lands in'connection therewith; that plaintiff would not have purchased th'e school lands had not defendant contracted to sell plaintiff the patented land, all of which facts were well known to defendant. That the school land, when owned in connection with the patented land, is of the reasonable value of $2.50 per acre bonus, but without the ownership of the patented land in plaintiff the school land is not reasonably worth more than $1.25 per acre; that in event plaintiff is denied a specific performance of the contract for the purchase of the patented land, he has suffered damages,, and entitled to recover the difference in the market value of the school lands in the sum of $4,800.
“Seventh. That the patented land was, at the time of the breach of contract, of the reasonable value of $5 per acre, and in event plaintiff is denied a specific performance, he has suffered damages, and entitled to recover $1.50 per acre on the 1,413 acres.
“Eighth. Plaintiff prays for specific performance, and in the alternative, for damages.
“The defendant filed general and special exceptions to the first amended original petition of plaintiff, a general denial, and specially answered:
“First. That the contracts alleged and sued on' are oral and verbal contracts, and are in Contravention of article 1103 of Vernon’s Sayles’ Texas Civil Statutes of 1014.
“Second. That said contract and contracts alleged in plaintiff’s first amended original petition are oral and verbal contracts, and are in contravention of subdivision 4 of article 3965 of Vernon’s Sayles’ Texas Civil Statutes, and the defendant pleads the statutes of fraud in bar of plaintiff’s right to recover herein.
“The defendant’s general and specific exceptions to plaintiff’s first amended original petition were in all things overruled.
“Trial was had in the court below, with the aid of a jury, and the cause was submitted to the jury upon special issues, to which special issues the defendant filed his objections, which were overruled by the court. Various special issues were requested by the counsel for plaintiff and defendant.
“Upon the findings of the jury the court below rendered judgment for the appellee. Defendant, in due time, filed his motion for new trial, which was overruled. Defendant duly excepted and gave notice of appeal, and filed his appeal bond.”

Opinion.

Under appellant’s first assignment of error, his counsel make the contention that the verdict and findings of the jury are contrary to the evidence, because the same shows that appellee, under his verbal Contract of purchase of the land sued for, did not enter upon and retain exclusive possession thereof, and place such valuable and permanent improvements thereon, in reliance in good faith upon such verbal contract.

We have carefully considered the statement of facts, and do not agree with appellant’s contention. There was evidence before the jury to support the findings they made in appellee’s favor on the questions referred to.

Under the second and fourth assignments of error, appellant reiterates the proposition that the' improvements referred to were of such insignificant character as not to justify a court of equity in enforcing the verbal contract.

That contention has already been disposed of in passing upon the first assignment, and therefore the second and fourth assignments are overruled.

The third assignment complains of the action of the trial court in refusing a requested instruction, requiring the jury to find the rental value of the land in controversy during the time appellee was in possession thereof.

According to the decision of our Supreme Court in Wells v. Davis, 77 Tex. 636, 14 S. W. 237, the charge referred to was properly refused.

The fifth and last assignment complains because the court overruled a certain special exception to the plaintiff’s petition. We hold that the ruling referred to was correct, and therefore overrule that assignment.

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

Apirmed.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BRADY, J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. MESSER.
    (No. 5992.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1919.)
    1. Railroads ©==>411(6)—Cattle on Track-Stock Daws—Pbooe ok Negligence.
    Where the stock law has been adopted, to justify recovery for the killing of cattle on a part of the track fenced, or where it is prevented from fencing because of public convenience or necessity or because dangerous to employes or the traveling public, proof of negligence on the part of the railroad is essential.
    2. Railroads ©=>443(5)—Animals on Track —Fences.
    In an action against a railroad for damages for a cow killed in a cut, evidence held insufficient to show that fencing and placing a cattle guard at only one end of the cut was the cause of the accident.
    3. Railroads ©=>419(3)—Stock on Track-Duty op Railroad.
    Where the stock law is enforced, it is sufficient if the railroad company uses such care as a reasonably prudent person would under the same circumstances, not merely the degree of care exercised by the owner of the stock to prevent its running at large.
    4. Railroads ©=>442(1)—Killing Animals— Evidence—Materiality.
    In an action against a railroad for damages for a cow killed in a cut closed at one end by cattle guard, evidence of railroad section foreman that he had written the company requesting it to remove the cattle guard was immaterial, especially where his reason for requesting its removal was that in times of rain it became full of water, making it difficult to get proper alignment of the rails.

      Appeal from Bell County Court; M. B. Blair, Judge.
    Action originating in justice court by W. A. Messer against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Lewis H. Jones, of Belton, and Terry, Cav-in & Mills and Frank J. Wren, all of Galveston, for appellant.
   BRADY, J.

Appellee sued appellant in the justice court of Bell county for damages for the alleged negligent killing of his cow, and from a judgment in favor of defendant he appealed to the county court. The case was tried before a jury in the county court, and verdict upon special issues returned in favor of appellee against appellant for $100, and judgment was rendered upon the verdict, from which this appeal was taken.

The trial court submitted the following special issues to the jury:

“(1) ‘Negligence’ is defined to be the want of ordinary care, that is, the want of such care as an ordinarily prudent person would have exercised under the same or similar circumstances. In view of the above and foregoing definition of negligence, and bearing the same in mind, do you find from the evidence that the defendant, the Gulf, Colorado & Santa Fé Railroad Company, was negligent in erecting and maintaining a fence and cattle guard across its railroad atsthe west side of Penelope street? Let your answer be ‘Yes’ or ‘No.’ ” To this question the jury answered “Yes.”

“2. If you have answered the foregoing question in the affirmative, you will then answer this question: Was the negligence of defendant in constructing and maintaining the fence and cattle guard above referred to the approximate cause of killing the plaintiff’s cow? Let your answer- be ‘Yes’ or ‘No.’ ” ' To this question the jury also answered “Yes.”

“(3) What was the reasonable market value of plaintiff’s cow at the time she was killed?” Answer of the jury, “$100.”

The material facts proven on the trial were as follows: Appellee .testified that he lost a cow on the morning'of December 16, 1915, of the-market value of $150; that he did not know how she was killed, but that she was found lying on the right of way of defendant’s road at a place near the west side of Penelope street in the corporate limits of the city of Belton, at the east entrance of the cut that runs under the viaduct; - that this viaduct down to and including the west part of Penelope street, which runs north and south, to the cattle guard or pen, is fenced, and that there are steep embankments on either side west of the viaduct, approximately 360 yards; that the street railway crosses the Santa Fé some distance west of the viaduct, and .the switches connect with the main line of the railroad a short distance west of the intersection of the street railway track and appellant’s track, and that this part of appellant’s right of way is not under fence; that the viaduct at the cut running down to Penelope street forms a pocket or death trap for cattle or stock there being no cattle guard at the west entrance of the cut and no room on either side of the track for an animal to pass; that he knew the stock law was in force in Belton but that he never permitted his cattle to run at large; and that his cow escaped at night without his knowledge..

-A son of appellee testified that the cow was found on the morning of December 16, 1915, about-20 feet west of the cattle guard, near Penelope street, and that she apparently had been knocked several feet; that she was killed as a result of the construction of the cut under the viaduct and the cattle guard at the east entrance to the same; that he did not see a train hit the cow and did not know that one hit her.

The section foreman of appellant testified that the right of way was not fenced for a distance of about 200 yards west of the viaduct, and that to fence and put in cattle guards west of the viaduct, which was within the switching limits of the city, would be dangerous to employés of appellant and to the traveling public; that he could not see any use for the cattle guard on the west side of Penelope street, but that, if it were not for this guard, cattle or other animals could enter the cut running under the viaduct in Penelope street, and that said street opens into every other street in town, and the guard prevents cattle entering upon the right of way at this point; that he had written to the company and requested them to have this cattle guard taken out, but they had not done so; and that his reason for wanting it removed was because in times of rain it became full of water, and the ties lying across it made it difficult to get the proper alignment of the rails.

A witness for defendant testified on the issue of market value that a cow such as'the one in 'question was worth anywhere from $50 to $150.

The agent of appellant at Belton also testified that west of the viaduct appellant’s tracks were used as a switchyard, and that considerable switching of trains was done there both day and night, and that, because of the danger to the public and employés of appellant, the company did not and could' not fence the right of way at this place; that the object of the cattle guard on the west side of Penélope street was to prevent cattle or other animals from entering the cut going under the viaduct; and that the right of way is fenced at that point, but that there was left about- four or six feet on either side of a train at this cut, which would permit a cow to pass on the side of the train while in the cut.

A diagram or plat is embraced in the statement of facts, representing the roadbed at the place where the cow was killed, the viaduct, the street railway crossings, and switches.

The testimony of the engineer and fireman on the train that struck appellee’s cow was agreed to as follows: That they were the engineer and fireman on. the train that struck this cow, and that upon entering the corporate limits the whistle was -blown and the bell rung in the usual manner; that, when they reached a point a few hundred feet east of the stockpens, they saw an object on the track ahead of them; that the engineer immediately applied the brakes in emergency, but was unable, with due regard to the safety of the passengers, to stop the train in time to prevent the accident.

It was agreed by the parties that the stock law was in full force and effect in that part of Bell county, including the place where the accident occurred, in December, 1915.

In its proposition under the first assignment of error appellant asserts that, to justify a recovery from the railroad for the killing of cattle on the part of its track not required to be fenced, proof of negligence on the part of the railroad is essential. We believe this proposition is correct, and in view of the disposition which we shall make of the appeal, and the probability of another trial, we shall briefly state our reasons for this holding.

The statute (article 6608) providing for the liability of railroad companies for stock injured or killed, and extending such liability even to counties and subdivisions wherein the stock law has been adopted, contains this proviso:

“Provided, however, that in all cases, if the railroad company fence its road, it shall only be liable for injury resulting from .a want of ordinary care.”

In Railway Co. v. Cocke, 64 Tex. 151, our Supreme Court, construing a similar provision of the old statutes, held that, where the evidence shows that the railroad company could not lawfully fence its road, or where it would be impracticable to do so with due regard to the public convenience or safety, the liability of the railroad company would be the same as if the road were fenced at such a place. See, also, Railway Co. v. Langham, 95 S. W. 686.

We are of the opinion that, if a railway company fences its track or is prevented from so fencing it because of public convenience or necessity, or because dangerous to its em-ployés or the traveling public, it would not be liable for such injuries, except for the failure to use ordinary care.

We sustain appellant’s third assignment of error, which is to the effect that the trial court erred in rendering judgment for appel-lee, and in not granting appellant a new trial because the answer of the jury to special issue No. 2 is not supported by the evidence, and that there -is no warrant in the evidence for the finding by the jury that appellant was guilty of negligence in constructing the cattle guard at Penelope street, and that the negligence of appellant in constructing and maintaining the fence and cattle guard there was the proximate cause of killing appellee’s cow.

We have carefully considered all the evidence in the record, and it is our opinion that it is wholly insufficient to show any negligence on the part of appellant in either the construction or maintenance of such fence and cattle guard. Indeed, the evidence seems to show that the cow was killed at a distance of at least 20 feet west of said cattle guard, and that she entered the cut and appellant’s tracks from the west side of the cut under the viaduct, and there is no evidence whatever to show that the cattle guard had anything to do with the killing of the cow. The evidence does not show that the cow reached the cattle guard, or that its presence in any wise caused the accident, outside of the question that there is no evidence except the mere expressions of opinions showing or tending to show any negligence of appellant in the construction or maintenance of the fence or cattle guard at Penelope street.

Appellant also complains of the failure to submit to the jury the issue of contributory negligence of appellee in permitting or allowing his cow to be at large, it having been pleaded and proven that the stock law was in force, and appellant having requested the submission of such an issue. We think this issue should have been submitted, and if the evidence should be the same upon another trial, the trial court should submit the issue. Railway v. Tolbert, 90 S. W. 508. We will add, however, that where the stock law is in force, if stock should be found upon the tracks of a railroad company, it is sufficient if the employés of the railroad company use such care as a reasonably prudent person would under the same circumstances have used to avoid injury, and that in determining this question the degree of care exercised by the owner of the stock to prevent its running at large would be immaterial.

Appellant’s eighth assignment of error complains-of the action of the trial court in permiting the witness D. W. Taggart to testify over appellant’s objection as follows:

“Q. State whether or not you have ever advised the railroad company to remove the cattle guard near the place where this cow was killed.
A. I have written the company and requested them to move this cattle guard, but they have not done so.” ,

We think the objections to this question and answer were good, especially in view of the explanation given by said witness as to bis reasons for requesting tbe cattle guard to be removed. As admitted, this testimony was irrelevant, immaterial, and prejudicial, and the objections should have been sustained.

For the reasons hereinabove given, the judgment of the trial court will be reversed, and the cause remanded for another trial.

Reversed and remanded.


author: JENKINS J.

text:
    PATE v. WILSON BROS. MERCANTILE CO.
    (No. 5975.)

    (Court of Civil Appeals of Texas. Austin.
    Dec. 4, 1918.
    On Motion for Rehearing, Jan. 23, 1919.)
    1. Gaming @=>1⅜ — “Wager Contract.”
    A contract for future delivery of an article where it is contemplated by the parties thereto that such articles should not be delivered, but that settlement might bo made by paying the difference in the contract price at the time of such delivery and the price named in the contract, is a “wager contract.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Wager Contract.]
    2. Gaming @=>14t — Dealing in Futures.
    If it was intention of parties to contract to deliver cotton that no cotton should be delivered, but that contract should be complied with by payment of difference in market value of cotton at'time and place of delivery and price named in contract, it was a wager contract, and not enforceable, either under or independent of Acts 30th Leg. c. 86.
    3. Gaming @=>49(1) — Dealing in Futures— Burden of Proof.
    . Under Acts 30th Leg. c. 86, the burden is on plaintiff, in an action for the breach of a contract to deliver cotton in the future, to prove that actual delivery was bona fide intended.
    4. Contracts @=>141(3) — Legality—Proofs of Illegality.
    That which would show in a criminal prosecution that a contract was in violation of the criminal law will also show in a civil action that such contract is illegal.
    On Motion for Rehearing.
    5. Appeal and Error @=>1177(4) — Disposal of Cause.
    Where the lower court erred in overruling a demurrer on the ground that a contract sued on was illegal on its face under Acts 30th Leg. c. 86, relating to dealing in futures, a judgment for plaintiff will only be reversed and remanded, and a judgment will not be rendered for defendant, because plaintiff, if the demurrer had been sustained, might have amended his petition and alleged fraud, accident, or mistake.
    Appeal from McLennan County Court; Jas. P. Alexander, Judge.
    Action by the Wilson Bros. Mercantile Company against J. M. Pate. Judgment for plaintiff, and defendant appeals.
    Reversed and rerdanded.
    Scott & Ross, of Waco, for appelant.
    Pat M. Neff, of Waco, for appellee.

      Writ of error dismissed March 19, 1919.

   JENKINS J.

This case was tried before the court without a jury upon the following agreed statement of facts:

"The plaintiff offered in evidence the following written contract:
“ ‘The State of Texas, County of McLennan.
“ ‘This contract made and entered into this May 12, 1916, by and between Wilson Brothers Mercantile Company, of Mart, Tex., party of the first part, and J. M. Pate, party of the second part, witnesseth:
“ ‘That J. M. Pate has this day sold to Wilson Bros. Mercantile Company ten bales of cotton at twelve cents per pound, basis middling, weight of bales to average 525 pounds (over or under weight settled for at market value at time of delivery), to be delivered to said Wilson Bros. Mercantile Company on or before November 1, 1916, delivery to be made at Riesel, Tex., all cotton to be delivered at one time. '■
“ ‘It is further agreed that, if grades different from middling be tendered, then the prevailing differences on and off middling shall govern. No cotton commonly known as “half and half” cotton shall be tenderable on this contract, and no cotton staple below one inch shall be acceptable.
“ ‘And it is agreed, if J. M. Pate should fail to carry out this contract, then he, J. M. Pate, shall be liable to Wilson Bros. Mercantile Company for such difference as exists between twelve cents basis middling cotton and the price of middling cotton above twelve cents on November 1, 1916, f. o. b. Riesel, Tex. And it is also agreed: If Wilson Bros. Mercantile Company should fail to carry out this contract, then they, Wilson Bros. Mercantile-Company, shall be liable to J. M. Pate for such difference as exists between twelve cents basis middling cotton and the price of middling cotton below twelve cents on November 1, 1916, f. o. b. Riesel, Tex.
“ ‘Signed at Mart, Tex., May 12, 1916. [Signed] Wilson Bros. Mercantile Co., by Jno. Ed Punchard, per W. A. Frazell.
“ ‘I, -, guarantee the fulfillment of the above contract on behalf of Wilson Bros. Mercantile Company.
“ T, -, guarantee the fulfillment of the above contract on behalf of —--, Mart, Tex., 1916.
-, Witness.’
“It was admitted by the defendant that he did not deliver to said Wilson Mercantile Company any cotton on November 1, 1916, or on any other date under said contract..
“It was further admitted that the price of middling cotton on November 1, 1916, at Riesel, Tex., was 18 cents per pound.”

The court rendered judgment for the ap-pellee for the sum of $304.50. Appellant excepted to appellee’s petition, which' alleged the breach of the above. contract, in that it showed: (a) That it was a contract in violation of the public policy of this state; (b) that it was a contract in violation of sections 1 and 2, art. 1013, Mcllwaine’s Penal Code of the State of Texas; (c) because the contract shows upon its face that it was a wager, in this, that it was a contract for future delivery of the articles sought to be sold, and provided that the settlement on the date given might be determined, not by delivery of the articles sought to be purchased, but by the difference between the price named in the contract and the market price of the product.

These exceptions were overruled, and the appellant assigns error upon the overruling of the same, and also upon the action of the court in rendering judgment upon the evidence.

A contract for future delivery of an article, where it is contemplated by the parties thereto that such article should not be delivered, but that settlement might be made by paying the difference in the market price at the time of such delivery and the price named in the contract, is a wager contract. A wager contract was enforceable at common law, unless it was contrary to public policy, or immoral, or in any other wise tended to the detriment of the payee, Seeligson v. Lewis, 65 Tex. 219, 57 Am. Rep. 593, citing Monroe v. Smelly, 25 Tex. 586, 78 Am. Dec. 541; Floyd v. Patterson, 72 Tex. 205, 10 S. W. 526, 13 Am. St. Rep. 787.

If it was the intention of the parties to the contract above set out that no cotton should be delivered, but that said contract should be complied with by payment of the difference in the market value of cotton at the time and place of such delivery and the price named in the contract, it was a wager contract, and not enforceable, without reference to the statute in this state with reference to dealing in futures. Burney v. Blanks, 136 S. W. 808-810.

In the absence of our statute on this subject, we think it would have devolved upon the defendant in the court below to prove that actual delivery was not intended, but our statute changes the rule upon this subject.

Chapter 86, General Laws of the Thirtieth Legislature, p. 172, the purpose of which, among other things, was to define futures, dealing in futures, and future contracts, and prohibit the making of same, made it a criminal offense to make, or offer to make, any “future contract.”

Section 6 of said act makes a contract for “futures,” as defined.in said act, an offense against the criminal law, and therefore void.

Section 2 of said act, in so far as it is applicable to the instant case, reads as follows:

“By each of the expressions ‘futures,’ ‘dealing in futures,’ and ‘future contracts,’ as these terms are used in this act, is meant: First,- a sale or purchase, or contract to sell or any offer to sell or purchase any cotton * * * to be delivered in the future when it was not the bona fide intention of the party being prosecuted under this act, at the time that such sale, contract, purchase, or offer to sell or purchase, was made that the thing mentioned in such transaction should be delivered and paid for as specified in such transaction.”

So far the statute does not alter the rule as to the burden of proof.

The second subdivision of said section defines “futures” as follows:

“Any such sale, purchase, offer, or contract where it was the intention of the party being prosecuted hereunder at the time of making such contract or offer that the same should, or, at the option of either party might be settled by paying or receiving a margin or profit on such contract.”

The contract above set out shows upon its face that it might be settled at th'e option, of either party, by paying the profit or loss, without delivering the cotton. This, we think makes it prima facie an illegal contract, and would cast the burden upon the plaintiff in the court below to prove that there was a bona fide intention that such cotton should be delivered.

Section 8 of said chapter does not leave the issue as to the burden of proof in doubt. It reads as follows:

“Sec. 8. In any prosecution under this act in which it shall be a material issue as to whether or not in the offer to or contract to sell or purchase for future delivery anything mentioned in this act, it was the intention of the defendant that such thing should be delivered and paid for in accordance with the terms of such offer or contract, proof by the state that such contract was for the future delivery of such thing, shall constitute a prima facie case for the state on this issue.”

In other words, where the proof shows that the “contract was for the future delivery” of any of the things mentioned in said act, such contract is prima facie a criminal act. The contract herein sued upon shows upon its face that it was for the future delivery of cotton, and is therefore prima facie illegal; and the burden of proving its’legality by showing a bona fide intention that such cotton should be delivered was upon the plaintiff. No evidence as to such intention was offered on the trial of this case.

It is true that this is not a criminal prosecution, but that which would show in a criminal prosecution that a contract was in violation of the criminal law will also show in a civil action, that such contract is illegal.

No proof having been offered as to the intention to deliver the cotton mentioned in the contract, the judgment of the court is not sustained by the evidence.

Eor the reasons stated, the judgment in this case is reversed, and this cause is remanded.

Reversed and remanded.

• On Motion for Rehearing.

Appellant has filed motion herein for rehearing, asking that we reverse and render judgment in this case, instead of remanding the same.

As stated in our opinion herein, the contract sued on is illegal upon its face, and the general demurrer to the same should have been sustained. In that event, however, appellee could have amended his petition, and alleged fraud, accident, or mistake; and we cannot say that he would not have done so, if the general demurrer had been sustained.

Upon another trial of this cause, if the pleadings are the same as they now are, the court should sustain appellant’s demurrer to appellee’s petition, and if the same is not amended, alleging fraud, accident, or mistake, the case should be dismissed.

Motion overruled.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    EL PASO ELECTRIC RY. CO. v. SAUERENMANN.
    (No. 894.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1918.
    Rehearing Denied Jan. 23, 1919.)
    1. Discovery <®=o54 — Corporation — Ex Parte Proceeding.
    Under Rev. St. 1911, arts. 3689-3682, a corporation has the right to take the depositions of an adverse party upon interrogatories filed, hut cannot proceed ex parte.
    2. Discovery <S=>70 — Incorrect Docket Number — Failure to Answer Interrogatories.
    Where, upon interrogatories filed, the case is correctly styled in the notice, commission, etc., but an erroneous docket number was used, refusal of court to treat interrogatories as confessed because of this incorrect numbering cannot be upheld, where it appeared that all parties at various steps of proceedings erroneously used the wrong number, and defect was not discovered until after trial.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by W. F. Sauerenmann against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Davis & Goggin, of El Paso, for appellant.
    M. W. Stanton, of El Paso, for appellee.

      Writ of error granted by Supreme Court March 26,1919.

   HIGGINS, J.

Appellee filed this suit against appellant on July 27, 1916, to recover damages resulting from personal injuries. Appellant is a corporation. The injuries were sustained July 15, 1916. On February 8, 1917, appellant filed written interrogatories to appellee and applied for a commission to take his deposition. Notice was given and cross-interrogatories were filed by appellee’s counsel. Commission was issued to take the deposition and placed in the hands of a notary, who issued a subpoena for appel-lee, which was served. Witness fee was tendered and accepted. Appellee failed to appear, and another subpoena was issued and served, and witness fee tendered but not accepted. Appellee again failed to appear. Attachment for appellee was then issued and placed in the hands of the sheriff, who refused to execute the same on account of threat by appellee to sue for damages. The notary thereupon returned the commission, certifying to the facts and that appellee had refused to answer the interrogatories. The interrogatories are pertinent to the issues and are so framed that they might be taken as confessed.

Upon trial, the court refused to permit the interrogatories to be taken as confessed, holding:

“That Revised Statutes of Texas, art. 3680, providing that either party might take the depositions of the opposing party as a witness, is not available to a corporation. That where a corporation is a party to a suit that'such corporation cannot take the depositions of the opposing party thereto.”

The only question presented by this appeal is the correctness of this ruling.

The right to take depositions is granted and controlled by statute. Chapter 3 of title 53, arts. -3679 to 3686, R. S., relate to the deposition of parties. Under Revised Statutes of 1895, this was chapter 3 of title 40, arts. 2292 to 2298. In 1897, chapter 3, tit. 40, was amended by the addition thereto of article 2293a, as follows:

“Where either party to any suit is a corporation, neither party thereto shall be permitted to take ex parte depositions.” Acts 25th Legislature, p. 117.

This appears in the Revised Statutes of 1911 as article 3681. Article 3680, Revised Statutes of 1911 (article 2293, R. S. 1895), provides:

“Either party to a suit may examine the opposing party as a witness, upon interrogatories filed in the cause; * * * and his examination shall he conducted and his testimony received in the same manner and according to the same rules which apply in the case of any other witness, subject to the provisions of the succeeding articles of this chapter.”

The right to proceed ex parte in taking the depositions of parties is conferred by article 3682 (article 2294, R. S. 1895). This article provides that “it shall not be necessary to give notice,” etc. We think this latter article confers the privilege of proceeding ex parte and does not make it obligatory so to do. The right of either party to a suit to examine the opposing party as a witness upon interrogatories filed in the cause, etc., is conferred by article 3680, and the further right to proceed ex parte is granted by the article 3682; and the right to proceed ex parte is not the exclusive manner in which a party shall proceed, but, at his option, he may proceed upon notice.

Prior to the amendment of 1897, it was well settled that a corporation had the right to take the depositions of the adverse party and could proceed ex parte. Ry. Oo. v. Reason, 61 Tex. 616; Ry. Co. v. Nelson, 5 Tex. Civ. App. 387, 24 S. W. 589; Ry. Co. v. Hamilton, 17 Tex. Civ. App. 76, 42 S. W. 360; Ry. Co. v. Winder, 31 S. W. 716; Locust v. Randle, 46 Tex. Civ. App. 544, 102 S. W. 947.

As we construe the amendment of 1897, it did not entirely abrogate the right conferred upon a corporation by article 3680 to take the deposition of the opposing party, but merely deprived it of the right to proceed ex parte, as provided in article 3682 (article 2294, R. S. 1895). In our opinion, the language of the amendment clearly so indicates. Had it been the purpose to entirely prevent the taking by a corporation of an adverse party’s deposition, it seems that the Legislature would have employed apt language to that effect. The language used indicates an intention to limit, and not altogether destroy, the right.

A contrary holding would entirely repeal article 3680 in so far as it gave to corporations the right to examine the opposing party as a witness upon interrogatories filed, whereas the language of the amendment in our opinion indicates simply an intention to deprive corporations of the right to proceed ex parte. We think the ruling of the trial court was erroneous. Bank v. Ivey, 182 S. W. 706.

Upon the interrogatories filed, the notice, commission, etc., the case is correctly styled, but an erroneous docket number was used. Appellee urges that the court properly refused to treat .the interrogatories as confessed, because of this incorrect numbering of the suit. This contention cannot be sustained. It is plainly apparent that all of the parties at various stages of the proceedings in the case erroneously used the wrong number. There can be no doubt that the interrogatories were filed in this particular suit and the commission issued therein. The incorrect numbering formed no basis of the court’s ruling. It does not appear to have been discovered until subsequent to the trial, and the court then entered an order correcting the number. This erroneous numbering cannot now be invoked to sustain the incorrect ruling upon appellant’s right to take the deposition of the adverse party.

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

      other cases see same topic and KEY-NUMBER in all Key-Numhered, Digests and Indexes


author: WALKER, J.

text:
    CITY OF ORANGE et al. v. PLANT et ux.
    (No. 385.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 15, 1919.)
    Appeal and Error <§==>773(4) — Review-Scope — Failure to File Beiep.
    Where appellants have filed no brief, the court is not required to search the record for the errors assigned in appellants’ motion for new trial, and, upon consideration of appellees’ brief and finding that the judgment is authorized by the pleadings, the case must be affirmed.-
    Appeal from District Court, Orange County; W. T. Davis, Judge.
    Suit by J. F. Plant and wife against the City of Orange and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    J. B. Bisland, of Orange, for appellants.
    Holland & Holland, of Orange, for appel-lees.
   WALKER, J.

This is an appeal from a judgment of the district court of Orange county, in which the plaintiffs below recovered judgment against the city of Orange for the sum of $5,000. The appellant has filed no brief in this case, though it has been briefed by appellees.

We have carefully considered appellees’ brief, and find no error. We are not required to search the record for the errors assigned in appellants’ motion for new trial; and, finding that the judgment is one authorized under the pleadings of the plaintiff, the case is affirmed.


author: BOYCE, J.

text:
    AMARILLO GAS CO. v. CITY OF AMARILLO et al.
    (No. 1535.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 15, 1919.)
    1. Constitutional Law <s=»154(2) — Gas <S=» ■ 2 — Ordinances—Validity.
    Where a city ordinance made the price of gas a certain amount, with the privilege of a 10 per cent, discount if paid before a certain date, a later ordinance, omitting the privilege of a discount and providing an additional 10 per cent, for delay in payment, could not be applied retrospectively, under Const, art. 1, § 16, even though the discount feature be considered a mere inchoate right or privilege.
    2. Constitutional Law <⅞=⅛54(2) — Gas 2 — Ordinances—Validity.
    A city ordinance, which granted a gas company the right to a minimum charge on meters, could not take effect for the month in the middle of which the ordinance went into effect, under Const, art. 1, § 16.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Suit by the Amarillo Gas Company against the City of Amarillo and others. Judgment for defendants, and the plaintiff appeals. Affirmed.
    J. B. Dooley, of Amarillo, for appellant.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellees.
   BOYCE, J.

The Amarillo Gas Company, prior to October 31, 1918, was operating a gas plant in the city of Amarillo, supplying the city and its inhabitants with gas, under the terms of an ordinance of the city, granting it a franchise to occupy the streets and alleys for such purpose. One of the provisions of this ordinance was to the effeet that the charges made consumers for gas should not exceed the sum. of $1.50 per 1,000 cubic feet for heating purposes, and $1.75 for 1,000 cubic feet for lighting purposes; “the monthly bill of consumers being subject to a discount of 10 per cent, if paid on or before the tenth day of each month.” On said October 31, 1918, the city commission passed an ordinance amending the section of the said franchise ordinance relative to the charges that might be made for gas. By this amendment the basic rate of charge remained the same — that is, $1.50 and $1.75 per 1,000 cubic feet for heating and lighting purposes, respectivtely — ‘but ¡the discount provision quoted above was omitted, and it was provided, in addition, that the gas company “may charge 10 per cent, on all bills not paid within 10 days after the bill is rendered to the customer.” A new provision was also included, to the effect that' a minimum charge of $1 per month might be made on each meter used by the consumer. The gas company claimed that this ordinance took effect November 18, 1918, while the city contended that it did not go into effect until December 15, 1918. A decision as to when the ordinance went into effect depends on a solution of the question as to whether such matter is controlled by the general provision of the city charter as to the time of publication and taking effect of ordinances'passed by the commission, or by the special provisions contained in said charter as to the publication and taking effect of franchise ordinances. Since our holding on another question renders it unnecessary to determine this issue, we will not state further the facts that would be pertinent to a decision thereof, but for the purpose of this decision only, will assume that the ordinance referred to went into effeet on November 18, 1918. Pursuant to a long-established custom, and by mutual consent and- understanding between the gas company and its customers, bills for gas were rendered and were due and payable monthly on the 1st of the month next after the meter readings are taken on or about the 25th of each month. On December 1, 1918, the gas company sent out its bills for gas consumed by its customers during the time included between the approximate dates of October 25 and November 25,1918, and claimed the right to collect payment thereof under the terms of the amendatory ordinance; that is, it proposed to aliovy no discount on bills paid within 10 days and to collect a surcharge of 10 per cent, on bills paid after the 10 days.

This suit was brought by the gas company against the city of Amarillo and its mayor, commissioners, manager, and corporate counsel, to enjoin the interference by the defendants with the gas company in the collection of said charges. The petition for injunction alleged, in addition to the facts as above stated, that the individual defendants were stating to plaintiff’s customers, and the public generally, that the charges provided for by the amendatory ordinance were not applicable to said December bills; that customers paying such bills within the 10-day period were entitled to the discount as provided by the old ordinance and were planning to represent and to announce that the said company could not rightfully demand payment of the 10 per cent, surcharge on bills paid after the 10-day period, nor rightfully collect the minimum charge of $1 referred to. It was further alleged that the customers of the gas company reposed confidence in the correctness of the statement made by the individual defendants under the sanction of their official positions, and that many of such customers have been thus led to refuse to pay these bills without the 10 per cent, discount, and that others will be induced to refuse and continue to refuse to pay the 10 per cent, surcharge on the bills proposed to be collected; that such action will result in hundreds of delinquent bills, which it would require many vexatious and petty suits to collect; and that loss and harassing litigation will surely result. Upon a hearing of this petition, the application for temporary injunction was denied, and this appeal is from, such judgment of the district court.

One of the first questions suggested in the consideration of appellant’s rights in the premises is whether the appellant can rightfully apply the rates fixed by the new ordinance to the gas consumed by its customers before the ordinance went into effect or specifically to the gas consumed between the approximate date of October 25th, and November 18th; and the answer to this question is, we think, decisive of the case. There was an implied contract between the gas company, and the consumer using gas prior to November 18th, that • such gas would be paid for at the rate established by the ordinance then in effect. Any law that would retroact so as to change the substantial rights and obligations of this contract as to transactions already had under it would be to that extent unconstitutional and void; Const. Tex. art 1, § 16. Appellant contends that the amendatory ordinance does not change any substantial right of the consumer; that the discount feature of the contract is a mere inchoate right or privilege which might be lawfully withdrawn; and that the surcharge is a penalty for nonpayment, which the lawmaking bodies of the government may provide and apply to existing contracts. If it be conceded that the discount privilege is not a vested right, the argument is ingenious, though not even then convincing to our minds. It will be seen, from the statement we have made, that the practical and necessary result of the amendment was to require the consumer to pay considerably more for his gas than he would have been required to pay under the old rates. There was no period of time when he could pay his bill without a substantial addition to the amount thereof. If he paid within the 10-day period, he was required to pay 11 Vo per cent, more than under the old rates; if he paid after the 10-day period, then the payment was 10 per cent. more. The purpose and effect, therefore, of the ordinance, was to increase the gas rate in the amount we have indicated. That this was accomplished by the use of the same base rates in the new ordinance as in the old, from which base rates the amounts to be paid were to be determined by discount and surcharge, is not material, since we should regard the substance of the transaction, and not the form. The rates established by the new ordinance did inevitably make a substantial change in the rights and obligations of the consumer, and we conclude cannot be applied to the gas consumed prior to the time the ordinance took effect.

It does not appear that the gas company had any minimum charge on meters prior to the enactment of this amendatory ordinance, and presumably the users of gas, no matter how small the quantity used, were, prior to this time, paying at the established rate fixed by the ordinance referred to. Such rates would then be a part of the contract, and, after proceeding under such contract for three-fourths of the month, an arbitrary minimum charge could not, for the same reason we have stated in discussing other charges, be applied to the existing contract.

The gas company, therefore, appears to be proposing to exceed its lawful rights in the collection of these bills rendered December 1st, and is not entitled to the aid of a court of equity in this purpose. This holding makes it 'unnecessary to determine whether an injunction would be proper in the event the company was acting within its rights in such matter.

The judgment of the district court is affirmed.
      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    CANNON v. STATE.
    (No. 5073.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On Motion for Rehearing, Feb. 5, 1919.)
    1. Criminal Law . <©=>761(15) — Instruction Assuming- Facts — Possession, oe Stolen Property.
    In prosecution for theft of cow, where defendant claimed the animal as his own and the only issue was ownership, a charge on possession of recently stolen property and consequent explanation was erroneous, as assuming that animal had been stolen and that an explanation of defendant’s possession had been given.
    2. Larceny <©=>73 — Instruction—Ownership op Property.
    In prosecution for theft of cow claimed by defendant as his own, where only issue was ownership, defendant was entitled to charge submitting that issue unincumbered with a charge on explanation of possession of property recently stolen.
    3. Criminal Law <©=>761(1) — Trial — Instruction-Assumption op Facts.
    It is never correct to assume a fact adversely to defendant in charging the law of the case.
    4. Criminal Law <©=>369(5).-— Evidence — Other Opeenses.
    In prosecution for theft of and alteration of brand on cow, where cow was claimed to be defendant’s own property and only issue was ownership, evidence of another cow found at same time with brand claimed to have • been altered was admissible (Per Morrow and Pren-dergast, JJ.). _
    Prendergast, J., dissenting in part.,
    On Motion for Rehearing.
    5. Criminal Law <©=>814(1) — Instructions— Issues.
    It is error to charge on issue adverse to defendant, when issue is not suggested or raised by facts.
    6. Larceny <S=>77(3) — Instruction—Possession oe Stolen Property.
    To authorize charge on possession of recently stolen property and consequent explanation, it must appear that property was stolen and recently found in possession of defendant, who gave explanation sufficient, if believed, to disconnect him with the crime; but the question does not arise when the issue is one of title claimed by defendant.
    7. Criminal Law <©=>1059(1) — Appeal—Exceptions — Charge.
    Exceptions to court’s charge helé sufficient to require consideration, on appeal, of whether court erred in charging on possession of recently stolen property and consequent explanation where only issue was ownership of the .property.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    C. I. Cannon was convicted of theft of a cow and altering the brand of a cow, and from judgment of court he appeals.
    Reversed.
    J. F. Cunningham, of Abilene, for appellant.
    Moses & Rowe, of Ft. Worth, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charged appellant with the theft of a cow in one count, and in the second for altering the brand on the cow.

At the opening of the case, the state elected to try for what is known in the record as the older cow; the facts developing there was a younger cow upon which the brand had also been altered. This, of course, designated the case and the animal upon which the trial should be predicated. The state’s theory was that the cow belonged to the Matador Land & Cattle Company, which was under the supervision and control of Jackson, who was the alleged owner. Suffice it to say, with reference to the theory of the case, that the state relied upon the fact that the animal- in question was the property of the Matador Land & Cattle Company, and that the brand had been altered on the cow so as to change the original brand to what was contended by the state was found on her at the time she was discovered in appellant’s pasture. The theory of the defendant was, supported by his testimony, that he raised the cow; that she was his property; and that the cow never belonged to the Matador Land & Cattle Company. 1-Ie claimed, at the time the cattle were found in his pasture, when the officers and others were there, and during a conversation between himself and Robertson with reference to the matter, that the cow was his. The record shows Robertson testified:

“I was walking along close to Cannon, Conner, and Ed Lisenby. We were coming along there, and there were two sows, an older 'cow and a heifer kept shying away from us, off to the left. They were west of us. I asked Cannon if these were his. He said: ‘Tes, áll I see here in sight are mine.’ I said, ‘That old cow, that heifer going off to the left, are those your cattle?’ He says: ‘That is not an old cow. They are both heifers. They are both mine. I raised them both.’ ”

The cattle were then put in a pen and examined, and under the state’s theory and testimony the brand showed to have been changed from the original brand to what was on them. Appellant claimed it was the original brand, and that he put the brand on originally, and there was newer any other brand on the animals except what he placed on them, and it was his brand. This is a sufficient statement out of this voluminous record of the facts, we think, to bring in review the issues necessary to be discussed.1

The court charged the jury with reference to the possession of property recently stolen, and explanation given by appellant. The charge as given is practically that set out in Wheeler, v. State, 34 Tex. Or. R. 350, 30 S. W. 913, which charge has been approved by this court as being sufficient when that issue is in the case. The objections urged to this charge were properly taken and verified. We are of opinion this charge should not have been given. The question of possession of recently stolen property and the consequent explanation is not in this case. The question here was directly at issue whether it was the property of defendant, or the property of the Matador Land & Cattle Company. He claimed it direct; such was his statement at the time when found in possession of it, and to sustain which he introduced evidence. So this case presents the issue, not of any explanation, but of the right and title to the property. If it was his, there could have been no theft. If it was not his' and belonged to the Matador Land & Cattle Company, then the case was one of theft, or fraudulent altering of the brand. Mr. Branch, in his Annotated P. C., on page 1335, collates a great number of cases. The condensed statement of that author is as follows:

“It is error to charge on the subject of reasonable explanation when defendant made no explanation of his possession, or when challenged as to the property he stated that he knfew nothing about it or claimed it as his own.”

The authorities are collated by Mr. Branch, and can be found without burdening this opinion with listing them. The issue in the case, so far as the animal was concerned, on this phase of it, was that it was defendant’s or it was the property of the Matador Land & Cattle Company. Appellant was entitled to a charge directly submitting the issue of his ownership and title to the property, unincumbered with the charge on explanation, and if believed by the jury to be true, or there was a reasonable doubt about it, they should acquit. The charge as given was an assumption of fact adverse to defendant. It is based upon the tk iory, first, that the property was stolen by some one, either by defendant himself, or by some one else from whom he received it. Appellant was denying this absolutely, and asserted ownership. The court was assuming against appellant that the property had been stolen and he had given an explanation of his possession, when he had denied the theft, claimed ownership, and had given no explanation of his possession. It is never correct to assume a fact adversely to appellant in charging the law of the case. The court was in error in giving the charge.

There is another proposition which we think is well taken. The court admitted evidence of another animal found at the same time as the one in question, and with the brand claimed by the state to have been altered. Objection was urged to the introduction of this testimony, and also to the charge of the court limiting the effect of such testimony to the “intent” of the defendant. We are of opinion that this evidence should not have been admitted. The intent was not an issue in the case from the viewpoint of the evidence. If appellant took the animal which was found in his possession and changed the brand on it, there could be no question as to his intent. If it was his, there could be no question of intent, because it was his property. The intent in taking it was clearly fraudulent if it belonged to another party. If it was his, there could be no fraudulent intent, and there was nothing to aid by the introduction of the evidence as to the other animal. He claimed to have put the original brand upon both animals and did not change the brand of the Matador Land & Cattle Company. They were both taken by the same right, under the same view, and by the same authority; that is, ownership. If he was not the owner, the intent in taking the animals and changing the brand on them was clear and did not authorize evidence of extraneous crime to be introduced to show intent. The court in his charge instructed the jury that they could only consider this extraneous matter as bearing upon the intent of the defendant. We believe this was error The' taking and altering the brand on the second cow, if appellant did it, could not show any fraudulent intent on his part in taking the other, because, if he took the other under the circumstances claimed by the state, there was no question of intent and nothing to elucidate, and no additional testimony was required or authorized. If it was his property, there could be no fraudulent intent.

For the reasons indicated, the judgment will be reversed, and the .cause remanded.

MORROW, J.

I think the evidence showing possession of another animal with brand changed, under the circumstances developed, was admissible. The charge on explanation of possession of property recently stolen seems to have been uncalled for. See Dobbs v. State, 57 Tex. Or. R. 55, I2X S. W. 859, and other cases mentioned in the opinion of the Presiding Judge. On this ground I concur in the reversal of the case.

PRENDERGAST, J.

It is dear to me that the testimony as to the change of the brand on the other cow or heifer was admissible. I agree .with Judge MORROW on that question.

I do not agree , with my Associates on the other question. The case cited by Judge MORROW is clearly not in point, as a reading of the opinion therein will demonstrate. In that case it was expressly stated the defendant therein at no time made any explanation of his possession. In this case the reverse is true. The defendant herein when first found in possession of the two head of cattle claimed, and explained he raised them, and the brands had not been changed, and that they were his property. The court in the charge held error did not assume either directly or indirectly.that the cattle, or cow, was stolen, but left that issue to he found by the jury, and required they should so believe — did not in any way take that question from the jury. The charge was proper and should have been given. In an entirely separate paragraph the court expressly told the jury that if they believed from the evidence appellant raised said cattle, or was the owner of it, or if they had a reasonable doubt thereof, to acquit him. The charge was in every way proper and guarded appellant’s rights.

This case should be affirmed. I dissent from its reversal.

On Motion for Rehearing.

DAVIDSON, P. J.

The motion for a rehearing by the state cites many cases to the effect that it is error to charge on reasonable account of recently stolen property when that is not an issue in thé case. This was one of the basic reasons why this judgment was reversed. It is always error, as we understand the decisions and the law, for the court to charge upon an issue adverse to the defendant when that issue is not made by the facts, whether this be assuming the issue of reasonable account, or any other adverse proposition, when the facts do not suggest or raise such issue. Authorities would not be necessary to sustain that proposition.

The question here was that appellant did not give an account of his possession of recently stolen property. In order to authorize a charge on that question, it must be shown that the property was stolen, and recently thereafter appellant was found in possession and gave an account of that possession, which if the jury should believe, disconnected him with the original taking and showed that his possession was not fraudulent. That question does not arise when the issue is title vel non to the property. See Smith v. State, 44 Tetx. Or. R. 81, 68 S. W. 510; Roy v. State, 84 Tex. Or. R. 801, 30 S. W. 666. So far as that question is concerned, the writer has reviewed thé former opinion and the record, and is more firmly convinced of the fact that recent possession of stolen property was not an issue in the case, but it was one of title, and which was severely contested with strong evidence in favor of defendant that the cattle were his and not that of Jackson, from whom he is alleged to have stolen. The issue of possession of recently stolen property is predicated always upon the fact that the property was stolen by some one, and the accused was recently thereafter found in possession of it. The theory of it is that the property was stolen. The basic issue before the jury was that' this was the property of defendant, and not that of Jackson. The state contended it was Jackson’s property, and appellant had stolen it. Appellant claimed it was his property, and never had belonged to Jackson, or the company which Jackson represented.

There is another exception in the charge which was not so specifically noticed in the former opinion, and that is that the issue of possession of recently stolen property was not made by the facts. Exception was reserved to the charge for not informing the jury that that issue was not in the case, and also for that reason in giving the charge of which complaint is made. Jackson and the state’s witnesses had never seen the cattle so far as they could recall, and the only claim set up was the.fact that in their judgment the brand on .the cattle had been some time in the past altered from the brand belonging to the Matador Land & Cattle Company. The state claimed an alteration of the brand and introduced testimony in support of that proposition; but when that was done, how remote is not shown, except that it had been quite a while prior to the time they found appellant in possession of the property, if it in fact had been changed. The claim is made also, in this connection, that the issue of recent possession was not made by the facts. All the authorities hold that possession must be recent after the cattle’s disappearance. This was not shown to be recent.

It is contended further that the exception to the charge was not sufficient to require this court to notice the question of ownership; that an exception was not thereto specifically reserved to the charge. The writer is of opinion that the charge is sufficient to present that question. The second exception to the court’s charge is that the court was in error in charging the law with reference to recent possession of stolen property, for the reason that the proof in this case does not raise the issue of recent possession; there being no proof that defendant’s possession was recent of the cattle if stolen. . Appellant further excepted to the charge because the proof showed that defendant’s possession of the alleged stolen animal was not Recent, and the court, instead of giving the law embodied in paragraph 7 (which was the charge on recent possession), should have charged the jury that possession of stolen property was not sufficient to authorize a conviction and that if they found the state relied alone on possession, and that defendant’s possession was not recent after they were stolen, to acquit. The fourth ground of the exception to the charge is as follows: That the court erred in its charge because there is no proof in this case by J. M. Jackson, or any other person, that the witness Jackson or the Matador Land & Cattle Company ever had possession of the animal in question, or that she was ever stolen from them, and defendant says that the evidence raises the issue as to the sufficiency of the proof to establish the corpus delicti, and the court’s' charge fails to submit said issue to the jury which should be done. We are of opinion these exceptions were sufficient to present the issue discussed in the opinion.

Taking the record as it is, the charge as given, and the facts introduced, we are of opinion these exceptions are sufficient to require this court to review and decide them.

The motion for rehearing will be overruled.
      @^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    SHIPLEY v. STATE.
    (No. 5218.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Indictment and Information <§=>137(6)— Intoxicating Liqtjoes <§=>205(1) — Matters of Form — Motion to Quash.
    In prosecution for violation of local option law, where information did not state whether election for local option was held before or after violation was made a felony, motion to quash should have been sustained as one of form.
    On Motion for Rehearing.
    2. Indictment and Information <§=>139— Motion to Quash — Time for Making.
    If verbal motion to quash had been made prior to trial, with an agreement to reduce it to writing and later file it, it would be in ample time, and the fact that it was filed subsequently and judgment entered subsequently did not affect the situation.
    3. Criminal Law <§=>1111(1) — Record—Conclusiveness.
    It being a controverted issue, whether motion to quash was made before trial, so that it was timely, court on appeal will be governed by the record, showing that it was filed the day after conviction; appellant offering no evidence by affidavit.
    Appeal from Rains County Court; O. H. Rodes, Judge.
    Jas. Shipley was convicted of violating the local option law, and he appeals.
    Affirmed.
    W'. F. Shipp and B. A. Carter, both of Emory, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $25, and 20 days’ imprisonment in the county jail.

It is charged in the complaint and information that appellant, on or about the 9th day of March, 1918, sold to Mayfield intoxicating liquors, after an election had been held by the qualified voters of Rains county in accordance with law. It does not recite at what time the election for local option was held, whether before or after the law punishing the sale of liquor was made a felony. Motion was made to quash fqr this reason, and also motion in arrest of judgment. Both were overruled, and this is the question presented for revision. The decisions draw the distinction between the preliminary motion to quash and the motion to arrest judgment. The motion to quash should be sustained, as being one of form and not of substance. The cases recognize this difference above stated. Under the decisions of this court the motion to quash should have been sustained.

See. Branch’s Crim. Law, p. -; Stone v. State, 206 S. W. 940, this day decided.

For this reason, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

This case was reversed recently. The state files a motion for rehearing. The reversal was based upon the proposition that the court overruled the motion to quash the indictment because of the failure to allege the date on which the local option law went into effect. He also filed a motion in arrest of judgment. The opinion was based upon that line of decisions which holds that the omission of such date is a formal matter, and in order to taire advantage of this defect in the indictment it must be by motion to quash. Such has been the holding since Hamilton v. State, 65 Tex. Or. R. 508, 145 S. W. 348.

The state makes a showing that the motion to quash was not in fact made until after the trial. There is a statement to the effect, from appellant’s counsel, that the motion was made before the trial with the understanding that it should be reduced to writing and filed later. This is controverted by the state, and sustained by the statement of the'officers, including the judge who tried the case. If as a matter of fact a verbal motion had been made prior to the trial of the case, with an agreement to reduce it to writing and file later, it would be in ample time, and the fact that it was filed subsequently, and the judgment entered subsequently, would not affect the situation. But this being a controverted issue, and the judge and officers sustaining the opposite of his contention, appellant offering no evidence by affidavit, we will be governed by the record, which shows the motion was filed a day following the conviction.

The state’s motion will be granted, following that line of cases since the rendition of the Hamilton Case, supra, and the reversal set aside, and the judgment affirmed.
      e§=>For other cases see same topic and K'SY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    ICE v. STATE.
    (No. 4857.)
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1919.
    On Motion for Rehearing, Feb. 5, 1919.)
    1. Criminal Law <§=>598(5) — Continuance— Diligence — Procuring Witness.
    Where defendant was indicted April 18th and tried September 7th and a subpoena for a witness was returned May 2d unexecuted, the subsequent diligence, based upon inability to learn witness’ whereabouts when he was in an adjoining state and corresponding with persons in defendant’s neighborhood, was so insufficient as to warrant overruling motion for continuance. ■
    2. Seduction <§=>40 — Evidence of Subsequent Intercourse.
    Upon trial for seduction, a subsequent act of intercourse coincident with a renewed promise of marriage at a fixed date within a short time is admissible to corroborate prosecutrix and as relevant to a controverted issue.
    3. Seduction <§=>43 — Evidence—Admissibility.
    In a seduction case, evidence that prosecu-trix made dresses in preparation of marriage was provable as a corroborative circumstance which usually accompanies an engagement to marry.
    4. Witnesses <§=>321 — Impeachment of Qwn Witness.
    It was not error to refuse to permit defendant, to lay the foundation for impeachment of his own witness, who gave no damaging testimony against defendant, but merely failed to give the evidence defendant desired.
    5. Criminal Law <§=>829 (1) — -Trial—Instructions.
    It is not error to refuse requested charges upon matters sufficiently covered by other instructions.
    6. Criminal Law <§=>783(2) — Impeaching Testimony — Instructions.
    An instruction that the fact that a witness was indicted could be considered alone upon the question of his credibility held sufficient to limit impeaching testimony.
    7. Criminal Law <§=>814(8, 9) — Instructions.
    In a seduetiQn prosecution, a refusal to charge on the theory that there was evidence that prosecutrix submitted to intercourse for reasons other than that alleged in the indictment was not error, where there was no evidence raising that issue.
    8. Seduction <©=>42 — Evidence — Character of Prosecutrix.
    In a seduction case in which prosecutrix’s chastity ifras challenged by evidence of acts of intercourse with parties other than defendant, the state could submit evidence of her general reputation.
    9. Witnesses <§=>350 — Impeachmeni>-Oross-Examination — Indictment for Perjury.
    On cross-examination of defendant’s witness, it was competent to prove that witness was under indictment for perjury as affecting his credibility.
    On Motion for Rehearing.
    10. Criminal Law <§=>780(3) — Instruction— Accomplice — Corroboration.
    A charge that prosecutrix in a seduction case waá an accomplice, that the jury must not only believe her testimony was true, but that it showed defendant’s guilt, and that her testimony must be corroborated by evidence other than her own, both as to sexual intercourse and promise of marriage, held correct, and not subject to objection that it authorized conviction if jury believed prosecutrix.
    Appeal from District Court, Somervell County; O. L. Lockett, Judge.
    Jim Ice was convicted of seduction, and he appeals.
    Affirmed.
    Levi Herring and Deason & Roark, all of Glen Rose, and W. E. Myres, of Cleburne, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for seduction. The fact that prosecutrix submitted to intercourse with the appellant upon Ms promise of marriage was definitely testified to by her and supported by other evidence constituting sufficient corroboration. There was proof that she gave birth to a child; that appellant, when charged with her seduction, after first denying it, stated, in substance, when told that prosecutrix’s mother was going to press prosecution, that if he was given a few days he would marry the girl; that he first wanted to procure a place to take her, and, obtaining consent, he fled. The prosecutrix said that, when he was informed of her pregnancy, he promised that the wedding would take place in a short time, and that he would make effort to procure a certain, named place to live, and there was other evidence that he did make the effort. There was evidence, aside from her testimony, that she made preparation to marry.

A second application for a continuance was based upon the testimony of an absent witness, by whom appellant expected to prove that the witness had had sexual intercourse with the prosecutrix prior to the date of the offense. The trial court regarded the diligence insufficient. The indictment was filed the 18th of April, 1917; the trial took place the 7th of September, the same year. A subpoena issued for the Witness to Fisher county was returned not executed on the 2d day of May, 1917. The subsequent diligence was based upon the allegation of inability to learn his whereabouts. He had moved to a point in New Mexico, at which he had lived for a number of months; had many acquaintances in the neighborhood in which the appellant lived, with some of whom he was in correspondence; and we think, under the facts developed, that the trial court did not abuse his discretion in overruling the application for a lack of diligence. From the evidence developed upon the trial, the court, we think, was also justified in the conclusion stated by him that the alleged testimony was not probably true.

Evidence of two other acts of intercourse was introduced, and is complained of. It is said in Walls v. State, 69 Tex. Or. R. 317, 153 S. W. 130, that it is the'settled rule that in this character of case subsequent acts of intercourse are provable. The writer is not prepared to coincide with a statement so broad, as it is conceivable that cases will arise in which such testimony should be rejected. The discussion of the question in the similar case of Bradshaw v. State, 198 S. W. 942, expressing the view that such is to be received when it is relevant upon a controverted issue, expresses the view of the writer upon the subject. Proof of the acts complained of was accompanied by other circumstances, going to corroborate prosecutrix, including a statement by her that they were coincident with a renewed promise of marriage,' at a fixed date within a short time, and come within the rule stated. This conclusion is in harmony with the text in Under-hill on Evidence, § 389, and with the opinion in State v. Waterman, 75 Kan. 253, 88 Pac. 1074.

The evidence introduced by the state, by several witnesses besides prosecutrix, that she made dresses in preparation of marriage was admissible as a corroborative circumstance. Underhill on Evidence, § 388; it being a provable circumstance which usually accompanies an engagement to marry. State v. Hill, 91 Mo. 423, 4 S. W. 121.

Complaint of the refusal of the court to permit appellant to lay the predicate for the impeachment of his witness McCarty cannot be sustained, for the reason that McCarty, when introduced by appellant, gave against him no damaging testimony,-but simply failed to give the evidence which appellant desired. An often exemplified rule sustains. the action of the court. Bennett v. State, 24 Tex. App. 77, 5 S. W. 527, 5 Am. St. Rep. 875; also. Branch’s Tex. Ann. Pen. Code, § 164.

The exceptions to the court’s charge, | upon the ground that it failed to give the defendant the benefit of the reasonable doubt, and that charging the failure of the court to instruct the jury that the prosecutrix was an accomplice, and that complaining of the failure of the court to instruct the jury that intercourse by the prosecutrix with others pri- or to the alleged offense would require an acquittal, are not sustained by the record; these matters all being covered by the court’s charge and the supplemental charge given.

Nor is the complaint that the court failed to limit the impeaching testimony well taken, for the reason that the court did limit such testimony as far as the law required it to be'done in telling the jury that the fact that the witness Zeb Ice was indicted could be considered alone upon the question of his credibility.

The failure of the court to charge the jury on the theory that there was evidence showing that the prosecutrix submitted to the intercourse for reasons other than, that alleged in the indictment was not error;. there being, in our opinion, no evidence raising the issue. The prosecutrix’s character-for chastity being challenged, by the introduction of evidence by the appellant of acts-of intercourse with other parties, the state was within its rights in supporting her character by proof of general reputation. On cross-examination of the witness Zeb Ice, the-state, over the appellant’s objection, proved, by him that he was under indictment for perjury. It has been often held that proof of indictment for a felony or an offense involving moral turpitude is admissible upon cross-examination of a witness for the purpose of affecting his credibility. As presented in the bill, we find nothing to distinguish the .proceeding complained of from those-passed on in the numerous cases heretofore decided. Lights v. State, 21 Tex. App. 313, 17 S. W. 428, and other cases listed in. Branch’s Tex. Ann. Pen. Code, § 167.

. We are referred, however, to the case of' Bennett v. State, 47 Tex. Or. R. 58, 81 S. W. 30, in which it was made to appear that one of the witnesses for the accused had been indicted for perjury because of his testimony on a former trial of the same case, and acquitted. It further appeared that the indictment was obtained for the purpose only, and for the express purpose of disqualifying and discrediting the testimony of the witness in the ease on trial. This being shown, manifestly the expressions of Judge Brooks in writing the opinion in the case mentioned, to-the effect that one accused of crime could not be deprived of the benefit of the testimony of a witness in his fávor, or have such witness discredited by an indictment fraudulently obtained for the unlawful purpose of' depriving the accused of his evidence. If such a state of facts were presented here we would' not hesitate to withhold our sanction of a. conviction resulting therefrom. Doughty v. State, 18 Tex. App. 179, 51 Am. Rep. 393. Such information as is brought before us, however, by the bill of exceptions and the record does not disclose a transaction of the character mentioned. See Perry v. State, 31 S. W. 618.

Such of the special charges requested as were applicable to the issues raised are embodied in the main charge.

The judgment of the district court is af-firméd.

On Motion for Rehearing.

We cannot, in view of the record, recede' from the conclusion expressed in the original opinion that the admission of the other acts of intercourse was not error. Supplementing the original opinion on the subject, we remark that, there was some confusion in the evidence as to the date of the first act of intercourse, some testimony putting it in May preceding the birth of the child in February. The subsequent acts introduced were properly received as explaining the birth of the child and the date thereof. Practically the same conclusion was expressed in Hinman v. State, 59 Tex. Or. R. 32, 127 S. W. 221.

The charge on accomplice testimony contained the following:

“A conviction cannot be had. upon the testimony of an accomplice unless the jury first believe the accomplice’s evidence is true, and that it shows the defendant is guilty, and then you cannot convict, unless the accomplice’s testimony is corroborated by other evidence connecting the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, and the accomplice cannot corroborate her testimony by her own statements. The corroboration must be both as to the sexual intercourse and the promise of marriage.”

The charge also explained to the jury what the meaning of accomplice was, and stated to them that the prosecutrix was an accomplice. The charge is not justly subject to the criticism that it authorized conviction if they believed that the testimony of the prose-cutrix was true. It required that they must believe, not only that the testimony of the prosecutrix was true, but that it showed defendant’s guilt; and, further, that it would not then authorize a conviction unless it was corroborated by other evidence connecting defendant with the offense charged; further that the corroboration must not only show the commission of the offense, and must come from other testimony than that of the accomplice, but it must relate to both the sexual intercourse and the promise of marriage.

We are referred to King v. State, 57 Tex. Cr. R. 370, 123 S. W. 135; Murphy v. State, 65 Tex. Cr. R. 55, 143 S. W. 618; Slaughter v. State, 76 Tex. Cr. R. 157, 174 S. W. 581. A charge, not differing in any substantial manner from that given in this case, was approved in each of the cases, except that of Slaughter v. State, and in that case the charge given was approved, and the dissenting opinion was based on the fact that the charge might be construed as instructing the jury that no corroboration was required except as to the act of intercourse. From the Murphy Case, we quote as follows:

“The defendant, also complains of the, following paragraph of the court’s charge: ‘You are instructed that under the law of witness Lillian Jakeman is an accomplice. Now you cannot convict the defendant upon her testimony alone, unless you first believe her testimony is true, and that it shows the defendant is guilty of the offense charged in the indictment, and even then you cannot convict the defendant upon said testimony, unless you further believe that there is other testimony tending to connect the defendant with the offense charged.’ This charge is not subject to the criticism leveled at it in the motion for a new trial, but is in accordance with the form laid down by this court in the case of Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, and approved in King v. State, 57 Tex. Cr. R. 370, 123 S. W. 135, and Brown v. • State, 57 Tex. Cr. R. 576, 124 S. W. 101.”

That the charge given in this case furnishes no just ground for complaint will be apparent from the case of Brown v. State, 57 Tex. Cr. R. 576, 124 S. W. 101, and others mentioned in the above quotation.

The motion is overruled.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes