author: HIGHTOWER, C. J.

text:
    HOUSTON, E. & W. T. RY. CO. v. RATCLIFF et al.
    (No. 299.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 3, 1918.
    On Rehearing, April 17, 1918.)
    1. Caeriebs &wkey;>69(3) — Carriage of Freight —Permission to Inspect — Meaning—Sufficiency of Evidence.
    In an action by the consignee of hay against the railroad which carried the shipment for damages from failure to permit adequate inspection, evidence held to show that the notation on the bill of lading, “Allow inspection,” is universally understood by shippers and railroads to mean a side-door inspection of the freight.
    2. Carriers <&wkey;69(3) — Carriage of Freight —Inspection—Sufficiency of Evidence.
    In such action, evidence held to show that a side-door inspection of the hay was permit7 ted the consignee; which was a reasonable in-pection under the custom.
    On Rehearing.
    3. Appeal and Eeroe &wkey;>1175(5) — Disposition— Confession of Lack of Evidence-Rendition of Judgment.
    Where appellee in his motion for rehearing expressly states he cannot produce any more evidence to sustain his claim of liability against defendant appellant than was produced below, judgment, the case having been reversed on the appeal, will be rendered by the Court of Appeals for appellant.
    Appeal from' Nacogdoches County Court; J. E. Perritte, Judge.
    Suit by Wilton Ratcliff and others against R. E. Levers & Co. and the Houston, East & West Texas Railway Company. Judgment for plaintiff in a justice court was affirmed in the county court, and the Railway Company appeals.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood and Mc-Means, Garrison, & Pollard, all of Houston, and Arthur -Seale, of Nacogdoches, for appellant. C. A. Hodges, of Nacogdoches, for ap-pellees.
   HIGHTOWER, C. J.

We find in appellant’s brief a statement of the nature and. result of this suit, which, upon comparison with the record, appears to be correct, and is as follows:

Wilton Ratcliff brought this suit against R. E. Levers & Co. and the Houston East & West Texas Railway Company, in the justice’s court of Nacogdoches county, to recover damages in the sum of $115.67, with 6 per cent, interest thereon and reasonable attorney’s fees, and upon a trial recovered judgment for the full amount sued for, less the attorney’s fees. The Houston, East & West Texas Railway Company then appealed to the county court, where, upon a trial before that court without a jury, judgment was also rendered in favor of the plaintiff, and against the defendants, for said sum of $115, with 6 per cent, interest thereon from. October 31, 1915, and for costs. Prom this judgment the defendant railway company alone, has appealed to this court.

No new pleadings 'were filed by the plaintiff in the county court, and the only pleading found in the record is that which was filed by him in the justice’s court, and which shows the basis of his cause of action, as follows:

“Now comes the plaintiff and states that the defendants owe him for damages $115.67, with 6 per cent, interest thereon, and a reasonable attorney fee, for that plaintiff bought from defendant Levers & Co. a car of .hay, with the agreement and statement that the same was good, sound hay, and the kind and quality plaintiff had contracted to and did buy, and that when same arrived the defendant railway company refused to allow plaintiff to inspect it, and when same was taken from the car, plaintiff found the same damaged to the extent of $115.-67, and for which he made his demand more than 30 days before filing this suit against the defendants.”-

The county court, upon request of the de fendant railway company, filed findings of fact and conclusions of law, which were as follows:

“The plaintiff Wilton Ratcliff June 30, 1916, ordered of the defendant R. E. Levers & Co., Roswell, N. M., one car of choice, pea-green, alfalfa hay, to be delivered at Nacogdoches, Tex., $17.60 per ton, weights and grades guaranteed, with sight draft attached to bill of lading, but with instructions to railway company to allow plaintiff to inspect the hay upon its arrival, so that he may determine before paying the sight draft the hay was the kind and quality bought. This was confirmed July 12, 1916. The car arrived over the defendant railway company’s road, at Nacogdoches, Tex., July 12, 1916. damaged to the extent sued for. The hay was sold as pea-green, choice, alfalfa hay, and upon its arrival the plaintiff asked permission from the defendant’s railway agent for permission to inspect the hay before paying' the sight draft. The railroad agent, in company with plaintiff, inspected the bill of lading at the Commercial Guaranty State Bank, which was marked ‘allow inspection.’ Upon return to the depot, the agent opened the side door, which was about 8 feet by 10 feet, which only enabled plaintiff to observe-the outside of some 20 to 25 bales of hay. The-plaintiff then made a repeated effort to examine further into the hay, which the agent of the-railroad company refused to allow. The consignor insisted by telegram that the shipment was as ordered, and would divert shipment at plaintiff’s expense if not accepted by him. The-car contained 485 bales of hay, and the railroadi agent only allowed a side-door inspection; that is, opened the door, permitting plaintiff to ob-' serve the outside of the bales exposed in the door, which was sound. The defendant not. allowing further-' inspection, the plaintiff paid the sight draft, undertook to remove the contents of the car, found a considerable amount of the hay rotten, which the railroad company admitted on the trial, to the extent of the damage sued for. The shipment had been diverted,, and had been on the road a considerable time. Had plaintiff been permitted to have made a-reasonable inspection, he would have learned that the hay was not sound, and declined the shipment. Not having been permitted to observe more than the hay exposed in the door, he was-unable to tell the condition of the hay other than the outside exposed bales. The plaintiff so wired the consignor before paying sight draft. The railroad still declining any further inspection; the plaintiff would be liable to the consign- or if the hay was sound, should he refuse the shipment, and, after having been assured by the consignor that the hay was choice alfalfa, paid the sight draft, unloaded the hay, and sustained damage to the extent of $115.67, the amount of' the claim about which there is no controversy, and which claim the plaintiff presented to the-defendants for more than 30 days prior to the filing of this suit, and from the testimony I find that $15 is reasonable attorney’s fees for the-plaintiff to prosecute this suit.
“Conclusions of Law.
“Prom.the foregoing facts I conclude that the defendants are liable to the plaintiff for the sum of $115.67, the amount of the damages sustained by the plaintiff because the hay was rotten upon its arrival at Nacogdoches, and that the-railway company is liable as a matter of law for its refusal .to allow plaintiff to make sufficient inspection of the hay to enable him to determine-whether or not the hay was sound, but conclude that the plaintiff is not entitled to recover any attorney fees, and enter judgment accordingly. This the 26th day óf April, 1917. Filed at the request of the defendant railroad company.”

The first assignment of error found in appellant’s brief, assailing the finding of fact made by the trial court, is not tenable, and we overrule the same without further comment.

The second assignment of error is as follows:

“The court erred in finding as a fact, and in part basing his conclusions of law thereon, that, ‘Had plaintiff been permitted to have made a reasonable inspection, he would have _ learned that the hay was not sound, and declined the shipment,’ for the reason that, in_ so far as such finding is tantamount to a finding that defendant did not permit plaintiff to make reasonable inspection, such finding is not supported by the evidence, in that the evidence shows that the only authority defendant possessed to allow an inspection was perforce of the notation indorsed on the bill of lading, viz.: ‘Allow inspection,’ and that under the undisputed proof, where a bill of lading is so indorsed, only a ‘side-door’ inspection is allowed; hence to allow such an inspection is, in such circumstances, a reasonable inspection.”

We have carefully examined the entire record in this case, and we find that the only authority or provision permitting or authorizing the railway company to allow plaintiff to inspect or examine this shipment of hay before its acceptance by him is the notation on the bill of lading under which the shipment moved, namely, “Allow inspection.” It was clearly and positively proved by the railway company’s agent at Nacogdoches, who acted for the railway company in this matter, and who delivered this shipment of hay to the plaintiff, that this notation on a bill of lading, “Allow inspection,” meant what is known to shippers and railway companies as a side-door inspection; in other words, the notation, according to this witness, meant that the plaintiff, under this bill of lading, was authorized and had the right to examine this shipment of hay by opening the side doors ,of the car in which the same was stored, which doors were about 8 feet wide and 10 feet high, and by that means to permit the plaintiff to examine this shipment of hay; that said witness had no authority from the railway company to permit any of this hay to be unloaded from the car prior to its acceptance by the plaintiff, and that it was the universal custom of railway companies, and was understood that such a notation on a bill ■of lading did not authorize or permit a consignee to unload a shipment, for the purpose of examination, but confined his examination and inspection to such as could be made by opening the side doors of the car for that purpose; that this character of inspection was fully permitted to the plaintiff, and this is not denied by the plaintiff himself. It was also positively proved by another witness, F. R. Penman, who was connected at Nacogdoches with the W. T. Wilson Grain Company for many years, that -said witness had had a great deal of experience in the buying and shipment of grain and hay, and with railway companies in general, handling such shipments, and that he was quite familar with the rules and customs governing such shipments and deliveries; and this- witness positively testified that it had always been, and was still, the custom and practice of railway companies, when a bill of lading reads, “Allow inspection,” to permit what is known as a side-door inspection; that is, the agent of the railway company or man in charge would open the side doors or windows of the car and permit the consignee of such shipments to examine the freight from such doors and windows, but would not, under any circumstances, permit the freight to be unloaded from the car.

This was practically all the testimony bearing on the contention that appellant refused to permit plaintiff to inspect this shipment of hay before the same was accepted by him, other than his own statement, which was, in substance, that in his opinion such character of inspection was not sufficient, and would not afford him a thorough inspection of this shipment of hay. We think that the testimony of the witnesses, Greeves and Penman, when properly analyzed and given proper weight, shows, without serious controversy, that the notation, “Allow inspection,” is universally understood by shippers and railway companies to mean what is called a side-door inspection of freight moving under such bill of lading, and we further think that the evidence in this case shows, without dispute, that such character of inspection was permitted the plaintiff in this instance.

There is no contention in this case that this shipment of hay became damaged by reason of any fault, wrong, or breach of contract on the part of the railway company, or that the railway company is liable to the plaintiff upon any theory, save that it refused to allow plaintiff to make a thorough inspection of the hay before he accepted the same; and, of course, if the plaintiff has failed to establish liability against appellant upon that theory, this judgment cannot stand. We note this notation from Mr. Elliott on Railroads:

“It is held in many of the cases that the consignee must have a reasonable opportunity to inspect the goods. Some of the cases hold that the carrier may permit the consignee to take away the goods for the purpose of inspection; but, of course, when the goods are removed by the consignee, and are rightfully in his possession, there is no liability on the part of the carrier. It is barely necessary to suggest that if there is no right to permit the goods to be taken by the consignee, and loss is caused the consign- or'by the wrong of the railroad carrier in suffering the consignee to obtain possession- of the goods, it will be liable to the consignor. We doubt whether it can be justly held that the consignee, as against the carrier, can rightfully insist upon permission to make a minute inspection, and we think that when the term ‘inspect’ or the term ‘inspection’ is used by the courts, it 'means no more than the consignee shall have a right, if he demands it, to make a general examination of the goods. The decisions which declare and enforce the right of inspection where goods are shipped ‘O. O. D.’ cannot, in all their scope, at least, apply in other cases.”

It seems that the cases are rare in which liability has been sought to be imposed against a carrier by railway in instances of this kind, so much so that we have been really surprised to find such a paucity of decisions on the question. We have examined the authorities found in appellees’ brief, which it is contended uphold the liability contended for in this instance, but, upon analyzing them, we find that they have no controlling effect under the undisputed facts of this case.

After careful consideration of this assignment, we are constrained to hold that it must be sustained, notwithstanding the fact that it is undisputed by this record that the plaintiff has sustained damages to the extent claimed by him, but it is manifest, or at least the evidence now before this court, as disclosed by the record, is insufficient to fasten liability for such damages upon the appellant in this case. This assignment of error is therefore sustained, for which the judgment must be reversed.

There are several other assignments contained in appellant’s brief, which we shall not discuss numerically, and which we think are untenable, and they are overruled.

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

On Rehearing.

At a former day of this term the judgment of the trial court in this case was reversed, and it was ordered that the cause be remanded for a new trial. The ground upon which the court reversed the judgment of the trial court was the insufficiency of the evidence to support the finding and judgment of the trial court, to the effect, substantially, that the appellant was liable for the damages claimed by appellee, for the reason that appellant refused to permit appellee to inspect the shipment of hay in question, as appellant was bound to do under the bill of lading on which the shipment moved. The reasons in full for this court’s judgment are shown in the original opinion, and need not be repeated here. In due time after the original opinion was filed, both the appellee and appellant have filed motions for a rehearing; the ap-pellee praying that our former opinion be set aside, and that judgment be rendered affirming the judgment of the trial court, and the appellant praying that a rehearing be granted, and that this court reverse and render the judgment of the trial court.

The appellee, in his motion for rehearing, has raised no new question, and this court has seen no reason why it should recede from its original holding in this case, being still of the opinion that the evidence clearly showed that the appellee was permitted to make such inspection of the shipment of hay in question as was contemplated and provided in the bill of lading on which the shipment moved, and therefore appellee’s motion for rehearing must be overruled.

We notice in appellee’s motion for rehearing the express statement that appellee cannot produce any more evidence to sustain his claim of liability against the appellant in this case than was produced on the trial below, and therefore there could be no reason for remanding the cause for a new trial, but in such event it becomes the duty of this court to reverse and render the judgment of the trial court.

It is therefore ordered that appellant’s motion for rehearing he granted, and the judgment heretofore rendered by this court, reversing and remanding the cause, is here now set aside, and it is now ordered that the-judgment of the trial court be reversed and. here rendered in favor of appellant.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. VILLAGE MILLS CO.
    (No. 2963.)
    (Supreme Court of Texas.
    April 17, 1918.)
    1. Abatement and Revival <S=»16 — Penden-cy op Other Action-^Identity of Issues.
    Where plaintiff had previously sued defendant to determine the title to certain land, and an appeal therein from a judgment for plaintiff was pending, a court of another district had jurisdiction to restrain defendant from cutting timber from such lands in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, providing for injunctions pending action.
    2. Injunction tS=o52 — Protection Pending Action — Discretion.
    Where a petition asserted a bona fide claim of title to the lands, possession for more than ten years, judgment, in an action pending on appeal, in petitioner’s favor and against defendant for the lands and the threat of defendant to cut the valuable timber from the lands, the granting of an injunction was not an abuse of discretion.
    3. Courts <@=>247(1) — Appellate Jurisdiction — Supreme Court.
    The Supreme Court has jurisdiction to grant writs of error in appeals from interlocutory orders granting injunctions under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4644, 4045, 4646. such not being of that class of cases in which the determination of the Courts of Civil Appeals is final under article 1521 as amended in 1913.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit for injunction by the Houston Oil Company of Texas against the Village Mills Company. From an order granting a writ in chambers without a hearing, defendant appealed to the Court of Civil Appeals (191 S. W. 723), where the order was reversed, and the injunction dissolved. Plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and order of district court affirmed.
    See, also, 186 S. W. 785.
    H. O. Head, of Sherman, and Kennerly, Williams, Lee & Hill and Oswald S. Parker, all of Houston, for plaintiff in error. W. D. Gordon, H. G. Russell, Thos. J. Baten, H. M. Whitaker, and E. E. Easterling, all of Beaumont, for defendant in error.
   PHILLIPS, C. J.

The Houston Oil Company of Texas filed in the District Court of Hardin County in the Ninth District an action against the Village Mills Company for a certain league of land in that county. It was successful upon the trial and obtained judgment for the land. The defendant appealed. The appeal is as yet undetermined. Following the appeal, the Oil Company presented to Judge Llewellyn, Judge of the District Court of Hardin County in the Seventy-Fifth District its petition for an injunction against the same defendant to restrain it from cutting the timber from the land and interfering with the plaintiff’s possession pending the final decision of the suit for the land. The injunction was granted in chambers without a hearing. On the defendant’s appeal the order was reversed and the injunction dissolved by the honorable Court of Civil Appeals for the Ninth District.

It is urged by the defendant in error that the Judge of the Seventy-Fifth District Court was without jurisdiction to issue the injunction because of the jurisdiction of the Ninth District Court over the suit for the land and the pendency of the appeal from the judgment there rendered. There is, in our opinion, no doubt as to the power of the District Judge to grant the injunction. This is not a suit for the land, nor does it at all involve the title to the land. The subject-matter is distinct. It is merely a proceeding to prevent waste upon the land and to preserve its condition pending the final determination of the rights of the parties by restraining the defendant from appropriating to itself at an intermediate stage of the controversy that which according to the allegations of the petition chiefly gives it value. Only a provisional injunction of spch duration was sought or granted. That it works no invasion of the jurisdiction of the Ninth District Court over the action for the land and will not interfere with the full exercise of the Court of Civil Appeals’ power over the appeal, is apparent. The statute (Article 4643) declares that the Judges of the District Courts may grant writs of injunction:

“Where, pending litigation, it shall be made to appear that a party doing some act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of- the rights of the applicant, which act would tend to render judgment ineffectual.”

This- provision contemplates such situations as that here presented, and plainly conferred upon the District Judge the power exercised.

The petition for the injunction clearly alleged the plaintiff’s assertion in good faith of its claim of title to the land; its actual possession of it for more than ten years ; the judgment for the land rendered in its favor against the defendant; the threat of the defendant to cut the timber from the land, notwithstanding the adverse judgment and the absence of any final adjudication that it was entitled to it; and that it was the timber which chiefly gave the land' its value. Such being the allegations, it canno.t be said, as a matter of law, that there was any abuse of discretion on the part of the judge in issuing the injunction. The facts stated were sufficient to create an independent equity in favor of the plaintiff entitling it to the aid of a court to prevent the property in controversy being rendered valueless to it through the acts of its adversary, regardless of the superiority of its rights if its judgment should be finally affirmed. Whitworth v. Barnes, 168 Mo. App. 269, 153 S. W. 538; People’s Traction Company v. Central Passenger Railway Company, 67 N. J. Eq. 370, 58 Atl. 597. With the timber constituting the real subject-matter of the original suit, tlie claim of the defendant directly challenged in the way the law provides, and the suit not yet concluded, it is difficult to perceive how in justice the defendant was warranted in taking the timber to itself as though its ownership were undisputed. A legal action for property prosecuted in good faith would present a strange irony if the law permitted one of the parties during its penden-cy to destroy the property’s value to the rival claimant by appropriating to himself that which made it valuable.

Since this was not an action for the land and did not involve the title to the land, to entitle the plaintiff to the character of injunction sought it was not necessary for it to here show that it had the better title. Its claim to the land, the prosecution of its suit in good faith, and the judgment in its favor in the trial court warranted, particularly in view of our statute, the granting of such relief as would prevent an ultimate judgment in its favor being rendered ineffectual. In such situations equity is not immediately concerned with the superiority of the rival claims, and does not wait upon the adjudication of that question. Its province is to preserve an even balance of right between the parties until that is settled by restraining at the hands of either any action which in the end would make the property valueless in the hands of the successful claimant

We have not failed to consider the defendant' in error’s motion to dismiss the cause. The ground of the motion is that the Supreme Court is without jurisdiction to grant a writ of error in appeals from interlocutory orders granting, refusing, or dissolving injunctions — which we have heretofore held is possessed by the court under Articles 4644, 4645 and 4646 where the cause is not of that class of which the jurisdiction of the Courts of Civil Appeals is made final by Article 1591 — because, it is urged, these articles were in effect repealed by the Amendment of 1913 to Article 1521, defining the general jurisdiction of the Supreme Court. As was announced during the argument, we have heretofore determined this question in assuming the jurisdiction here disputed by our action upon numerous applications for writs of error in causes of the class of the present one since amended Article 1521 became effective. The purpose of Articles 4644, 4645 and 4646 was to confer a special jurisdiction upon the Supreme Court in a particular proceeding. They are particular statutes and relate solely to a certain kind of appeals. Amended Article 1521 — since amended by the Act of 1917 (Acts 35th Leg. e. 75, § 1 [Vernon’s Ann. Civ. St Supp. 1918, Art. 1521]) — was a general statute and was expressed in only affirmative terms. It contained no negative provisions. Its purpose was only to define the general jurisdiction of the Supreme Court over causes determined in the Courts of Civil Appeals. It evinced no intention of impairing the special jurisdiction conferred upon the Supreme Court under Articles 4644, 4645 and 4646. There was no absolute repugnancy between it and Articles 4644, 4645 and 4646 since under its terms it was possible for it to have, and it did have, an extensive operation beyond the limited scope of these articles. Under familiar rules there was no implied repeal. Sutherland on Statutory Construction, §§ 274-278; Cole v. State, 106 Tex. 472, 170 S. W. 1036; State v. McCardy, 62 Minn. 509, 64 N. W. 1133.

The judgment of the Court of Civil Appeals is reversed and the order of the District Judge is affirmed.
      tteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM. HAWKINS, J.

text:
    SCOTT et al. v. SHINE.
    (No. 4178.)
    (Supreme Court of Texas.
    April 17, 1918.)
    On Application for Writ of Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Mrs. H. T. Shine against Mrs. Elizabeth Scott and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (194 S. W. 964). The designated Justices of Courts of Civil Appeals, to whom was referred defendants’ application for writ of error, refused the writ, and defendants move for rehearing on the order of refusal, and for the Supreme Court to consider and pass on the application.
    Motion overruled.
    Miller & Miller, Glover C. Johnson, and I. W. Stephens, all of Ft. Worth, for plaintiffs in error. Morrow & Morrow, of Hillsboro, Robt. Harrison, of Ft. Worth, and Chas. L. Black, of Austin, for defendant in error.
   PER CURIAM.

Motion for rehearing and to recall from committee of judges overruled.

HAWKINS, J.

(dissenting). Because of the recent change in the personnel of our Supreme Court I have considered as reopened the question as to the constitutionality of the act of March 15, 1917 (H. B. No. 39, Acts 35th Leg. c. 76, p. 142 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 1545a-1545g]), authorizing final disposition, by designated justices of Courts of Civil Appeals, of referred applications to the Supreme Court for writs of error.

The action of my Associates upon this motion impliedly sustains the validity of that statute. Railway v. Blair, 196 S. W. 502, opinion by Chief Justice Phillips. From that conclusion and holding I dissent, upon the grounds and for the reasons heretofore stated by me in Re Supreme Court Dockets Relief Act of 1917, filed August 18, 1917 (Railway v. Blair, 196 S. W. 1153), and in Re Subdivision Six of Supreme Court Jurisdiction Act of 1917, 201 S. W. 390, filed March 6, 1918, not yet officially reported.

If said Relief Act is unconstitutional, the designated justices of the Courts of Civil Appeals were without jurisdiction or authority to consider and act upon said application, and it should be considered and acted upon by this court, although, of course, if said statute is valid, this court should not, in any case or instance, review the action of the “designated justices,” no matter how erroneous their action upon any referred application or motion for a rehearing may be; such power of review being denied to this court by said Relief Act itself.

Under the circumstances, I consider it proper thus to renew an expression of my views on the subject; but, in the future, as in the past, and as in duty bound, under our state Constitution, I will be controlled by the decision of the majority of the Supreme Court in the premises.


author: GREENWOOD, J.

text:
    MOORMAN v. TERRELL, Comptroller.
    (No. 2962.)
    (Supreme Court of Texas.
    April 24, 1918.)
    1. Statutes <@=>174, 175 — Time as to Which Act Speaks.
    A statute speaks as of the time at which it takes effect.
    2. Taxation <@=>549(2) — Tax Collectors — Fees — Statutes.
    Under Acts 25th Leg. (Sp. Sess.) e. 5, approved June 16, 1897, as amended by Acts 25th Leg. (Sp. Sess.) c. 15, approved June 19, 1897, the county collectors of taxes, who were to receive only 10 cents for each poll tax receipt and certificate of exemption issued by them, were those subject to all the requirements of sections 11 and 16.
    3. Statutes <@=>181(1) — Construction — Intention of Legislature.
    The court cannot adopt the construction of a section of a statute no matter how plainly required by its language, standing alone, which would defeat the intent of the Legislature in the enactment of the whole statute.
    4. Counties <@=>71 — Officers — Pees — Statutes.
    Acts 25th Leg. (Sp. Sess.) c. 5, approved June 16, 1897, as amended by Acts 25th Leg. (Sp. Sess.) c. 15, approved June 19, 1897, fixing the maximum amounts of fees construed to declare in section 17 that the officers named in section 10, in those counties having a population of 15,000 or less, should not be required to make the report of fees provided in section 11, or to keep a statement as provided in section 16, the population of the county to be determined, up to 1902, by the vote cast at the next preceding presidential election on the basis of five inhabitants for each vote cast at such election, and to be thereafter determined by the national census.
    6. Statutes <@=>219 — Construction by Officers.
    Public policy requires the solving of mere doubts in favor of the construction put upon statutes by the departments and officers charged with their administration.
    Petition for mandamus by R. B. Moorman against H. B. Terrell, comptroller.
    Mandamus refused.
    Ligbtfoot, Brady & Robertson, of Austin, for plaintiff. Jno. C. Wall, Asst. Atty. Gen., for defendant
   GREENWOOD, J.

The following facts are alleged by the relator and are admitted by the respondent. Relator qualified as tax collector of Bosque county, Tex., December 3, 1912. The total vote cast in said county at the presidential election of 1908 was 1,713, and at that of 1912 was 1,472. By the United States census of 1900 the population of Bosque county was 17,390, by the census of 1910 it was 19,013. During the fiscal year 1915-16, relator issued 3,196 poll tax receipts and certificates of exemption, and retained $479.40, as fees therefor, being at the rate of 15 cents each, six-sevenths of which amount, or $410.91, he charged against the state. Respondent, instead of giving him credit for the receipts and certificates at the rate of 15 cents each, gave him credit therefor at the rate of only 10 cents each, amounting to $273.95. Relator claims he should have received full credit of $410.91, and seeks a writ of mandamus, directing and requiring respondent to now credit his account with the difference of $136.96, so as to balance relator’s account for said year. Relator’s right to the writ depends on the construction to be given to article 2986, Revised Statutes, which is section 144 of the general law regulating elections, passed by the First special session of the Legislature in 1905, and which reads as follows:

“The collector of taxes shall be paid fifteen cents for each poll tax reeeint and certificate of exemption issued by him, to be paid pro rata by the state and county in proportion to the amount of poll tax received by each, and this shall include his compensation for administering oaths, furnishing certified lists of qualified voters in election precincts for use in all general elections and primary conventions, when desired, and for all duties required of him under this title: Provided, that collectors whose salaries are fixed by what is known as the fee bill, shall receive ten cents for each poll tax receipt and certificate of exemption issued by him, and such fees shall be ex officio and not accountable under said fee bill.” General Laws 1st Called Session, 29th Leg. p. 557.

The real controversy is as to whether the relator comes within the meaning of the words, “collectors whose salaries are fixed by what is known as the fee bill.”

In order to determine the controversy, we must look to the statutes “known as the fee bill,” as the same existed in 1905, when section 144 became a law, “since the rule is that a statute speaks as of the time at which it takes effect.” Fischer v. Simon, 95 Tex. 240, 66 S. W. 447, 882.

The “fee bill” referred to in section 144 is the act of the special session of the Twenty-Fifth Legislature approved June 16, 1897, as amended by the act approved June 19, 1897, fixing maximum amounts of fees to be retained by certain officers. General Laws (Sp. Sess.) 25th Leg. pp. 5, 42.

As applied to the collectors of taxes, section 10 of the original act and of the amended act fixed “an amount not exceeding $2,000.00 pea: annum” as tlie maximum amount of fees that might be retained by such officer, and “in addition thereto one-fourth of the excess of fees” collected by him, provided that “up to 1902, in counties in which there were cast at the last presidential election as many as 5,000 votes, and thereafter any counties shown by the national census of 1900 to contain as many as 25,000 inhabitants,” the collector should be allowed an amount not exceeding $2,250 per annum, and. in addition thereto, one-fourth of the excess of fees collected by said officer; and provided, further, that “in counties containing a city of over 25,000 inhabitants, or in which there were cast at the last presidential election as many as 7,500 votes or by the census of 1900 shall contain as many as 37,500 inhabitants,” the collector should be allowed an amount not exceeding $2,500 per annum, and, in addition thereto, one-fourth of the excess of fees collected by said officer. Section 10 also declared that the last United States census should govern as to the population of cities.

Section 11 of the act required each officer mentioned in section 10, as well as the sheriff, at the end of each fiscal year, to make to the district court “a sworn statement, showing the amount of fees collected by him” during such year, besides other matters, and required that all fees, in excess of the maximum amounts allowed to be retained, be paid by the officers mentioned to the county treasurer.

Section 16 of the act made it the duty of the officials named in section 10, and the sheriff, to keep a correct statement of the sums coming into their hands as fees and commissions, in a book to be provided for the purpose, and made it the duty of the grand jury to examine and report on these accounts at one session each year of the district court.

Section 17 of the act reads:

“The officers named in section 10 of this act, in those counties having a population of 15,000 or less, shall not be required to make a report of fees as provided in section 11 of this act, or to keep a statement provided for in section 16 of this act; the population of the county to be determined by the vote cast at the next preceding presidential election, on the basis of five inhabitants for each vote cast at such election; provided, that all district attorneys shall be required to make the reports and keep the statements required in this act.”

We think it is obvious that the collectors who were to receive only ten cents for each poll tax receipt and certificate of exemption issued by them were those who were subject to all the requirements of sections 11 and 16.

If we consider section 17 alone, the conclusion could not be escaped that the tax collector of Bosque county, during the fiscal year of 1915-1916, would be without the requirements of sections 11 and 16 which, were referred to in section 17. Eor he was-an “officer named in section 10,” in a county having a population of less than 15,000, when determined “by the vote cast at the next preceding presidential election.” If this construction of the act were correct, then officers entitled to the highest maximum of fees under section 10, to wit, $2,500 and one-fourth of the excess, would not, in many instances, be compelled to make the report required by section 11, nor to keep the statement provided for in section 16. Eor a county with a population of 37,500 inhabitants or over, under the census of 1900 and of 1910, which voted less than 3,000 votes in the presidential elections of 1896 and afterwards, would have less than 15,000 population, if determined by the method stated in section IT. Yet it cannot be successfully denied that a main purpose of the Legislature was to reduce the fees in the largest and larger counties of the state, and the reports and accounts required to be made and kept by sections 11 and 16 were essential means of effecting the reduction. We cannot adopt a construction of section 17, no matter how plainly required by its language, standing alone, which would defeat the intent of the Legislature in the enactment of this act.

In Ellis County v. Thompson, 95 Tex. 32, 64 S. W. 927, 66 S. W. 48, the defendant in error sought to have certain language of section 10, of this same act, enforced according to its literal meaning. In declining to so enforce the particular language relied on in section 10, this court, in the opinion by Justice Brown, said:

“We cannot, however, consent to be confined to one section of the act in disregard of all other parts even if the language were unambiguous. The paramount rule of construction is to find out the legislative intent, which is the law and must prevail. Suth. Stat. Const. § 218; Runnels v. Belden, 51 Tex. 48; Russell v. Farquhar, 55 Tex. 359. In Runnels v. Belden, Chief Justice Moore said: ‘It is unquestionably a fundamental canon of construction that such interpretation shall be given to acts of the Legislature as will effectuate the intent and purpose of the lawmakers in their enactments, when the intent of the law is plain and obvious, rather than to follow its literal import or mere grammatical construction.’ In the ease of Russell v. Farquhar, the same learned judge used the following language: ‘If courts were in all cases to be controlled in their construction of statutes by the mere literal meaning of the words in which they are couched, it might well be admitted that appellants’ objection to the evidence was well taken. But such is not the case. To be thus controlled, as has often been held, would be for the courts, in a blind effort to refrain from an interference with legislative authority by their failure to apply well-established rules of construction, to, in fact, abrogate their own power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to “try out the right intendment” of statutes upon which they are called to pass, and by their proper construction, to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.’ ”

When the maximum fee act became effective, a census, which is recognized by all men as the surest means of determining population, had not been taken for seven years, and during the seven years, the population of many counties in Texas had rapidly increased. A presidential election, however, had been held the year before. The next regular census would he taken in 1900. It seems plain to us that the Legislature decided that it would be best to merely estimate the population of the counties from the presidential vote, until the census would "be taken and published, but intended, after the results of the census would be available, to ascertain the population from the census.

If this was the legislative intent, it follows that section 17 should be construed to declare that the officers named in section 10, in those counties having a population of 15,000 or less, should not be required to make the report of fees provided for in section 11, or to keep a statement as provided for in section 16, the population of the county to be determined, up to 1902, by the vote cast at the next preceding presidential election, on the basis of five inhabitants for each vote cast at such election, and to be thereafter determined by the national census. To give section 17 this meaning is to bring all the provisions of the act into harmony. Spence v. Fenchler, 107 Tex. 457, 180 S. W. 597.

Our conclusion is in accord with that of the Court of Civil Appeals, in Sparks v. Kaufman County, 194 S. W. 607, as follows:

“It is not conceivable that the Legislature intended, in exempting the officers, in counties containing less than 15,000 inhabitants, from making the reports required of all officers named in section 10, to adopt a basis of computing population, the effect of which would be to pervert and render nugatory the carefully arranged and considered provisions of the law in reference to the maximum of compensation. We conclude such was not their intention, and that the method of computing the population provided in section 17 must give way to those provisions of section 10 on the same subject.”

Again, sound public policy requires the solving of mere doubts in favor of the construction put upon laws by the departments and officers charged with their administration, and our decision is in conformity with the rulings of the departments during the administrations of Attorneys General Davidson and Looney, though in conflict with a ruling during an intermediate administration. Tolleson v. Rogan, 96 Tex. 432, 73 S. W. 529; H. & T. C. Ky. Co. v. State, 95 Tex. 507, 68 S. W. 777.

The mandamus is refused.
      <@=>For otilar cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    LAY v. STATE.
    (No. 4963.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    Costs <§=>310 — Criminal Prosecutions — Witness Fees — Officers.
    A salaried policeman may claim his fee as witness for the prosecution in a misdemeanor case, for, although Vernon’s Ann. Code Cr. Proe. 1916, art. 1137b, forbids such fees to peace officers in felony cases in which the state pays the witness fees, it does not in misdemean- or cases in which defendant pays them.
    Appeal from 'McLennan County Court; James P. Alexander, Judge.
    D. Y. Lay was prosecuted for a misdemeanor and pleaded guilty. He later moved to retax the costs, and from denial of such motion he appeals.
    Affirmed.
    Albert C. Johnston, of Waco, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

In the county court there was a motion made to retax the costs in this case.

The evidence shows that the costs accrued in favor of the officer who made the arrest and appeared as a witness in this and another case. Both parties pleaded guilty, and the officer was not used as a witness, though summoned. He claimed that he had charged his fees as a witness in each case for one day’s attendance, which was $1.50 in each case, if legal.

Appellant insists that, inasmuch as the officer was a salaried policeman, he was not entitled to charge witness fees, and refers us to section 1137b, Vernon’s Grim. Stats. 1916, an act of the Legislature of 1913. That statute applies to witness fees in felony cases, the costs to be paid by the state. It provides that no witness fee shall be paid to peace officers, nor to any witness in habeas corpus cases of summoned on motion to change venue, and provides further that no fees shall be approved by the court in any case where the charge includes a misdemeanor case until the case is finally disposed of, and in case of a conviction for misdemeanor no fees shall be paid by the state; and it also provides that witnesses attending court in more than one case at the same time shall receive fees in only one case; and provided further that in no event the state shall pay per diem in any one case more than $5 to any witness in any .one case at any one term of court. It will be noticed that these fees are to be paid by the state, not by the defendant. The same rule does not apply in ordinary misdemeanor cases. It is understood to be the rule with reference to charging fees that none will he permitted except where authorized by statute; that is, it is a prerequisite before fees may be charged that the Legislature pass Suitable legislation authorizing the charging and paying of such fees, whether by the state or the defendant. With reference to misdemeanors, there is no interdiction of the charging of witness fees so far as officers are concerned. They seem to come within the general class of witnesses, and are entitled to the same fees as other witnesses in misdemeanor cases. A witness in a misdemeanor case can be paid no fees other than those provided, but is entitled to charge such fees as the statute enacts. There being no difference with reference to misdemeanor cases as to the character of witnesses, whether officers or not, the officer would come within the general category, as we understand the law, as witness. His official character, so far as that proposition is concerned, would make no difference. There are no traveling expenses in the case to complicate; therefore we have the question as to whether or not an officer in misdemeanor cases can charge fees as a witness for his attendance upon the court. We are of opinion that he can, and that the court did not err in allowing the fees charged by the officer.

The judgment therefore will be affirmed.
      <gs=jFor other eases see same topic aná KEY -NUMBER in all Key-Numbered Digests and Indexes


text:
    BENNETT v. STATE.
    (No. 4955.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Criminal Law <@=»737(1), 779 — Acting as Principals — Instructions — Question for Jury.
    If a conspiracy between defendants is shown, or they acted together in the commission of the offense, the court is authorized to charge on that phase of the law, though, if such evidence were not in the case, such charge would be erroneous; but, if there is an issue as to whether defendants were acting together as principals, the court should submit the question to the jury for their decision, they being the judges of the weight of the testimony and credibility of the witnesses, and, the issue as to whether they were acting as principals or not being in the case,, the jury had the right, under appropriate instructions, to decide the question.
    2. Assault and Battery <§e=>89 — Criminal Law <§=»36S(1) — Evidence Showing the Circumstances — Res Gestíe.
    In a prosecution for aggravated assault, where defendant, another man, and a woman were in an automobile going south, and S. and his son were in one buggy, and B. and his son in another, both traveling north, and the automobile ran into B.’s buggy and smashed it up, and S. came up and asked B. if he was hurt, and also asked the people in the auto if they were hurt, defendant stabbing him in "the ensuing difficulty, testimony as to all that occurred was admissible as showing the acts and declarations of the parties present and participating, also upon the ground of res gestae.
    3. Assault and Battery <S^85 — Aggravated Assault — Evidence.
    In a prosecution for aggravated assault, where the assaulted party was stabbed by defendant and another, medical testimony as to the wonnds the doctor found on the assaulted person’s body when he examined him was admissible, though a wound under the arm, particularly described by the doctor, seemed by the testimony to have been inflicted by the person other than defendant, while the wounds on the face and other parts were inflicted by defendant.
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Ed Bennett was convicted of aggravated assault, and be appeals.
    Affirmed.
    B. B. Sturgeon, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, bis punishment being assessed at a fine of $500 and 30 days’ imprisonment in tbe county jail.

This is a companion ease to that of Terrell v. State, 197 S'. W. 1107, decided during ttfe present term of tbis court. In a general way, the statement found reported in tbe Terrell Case will be sufficient for tbis ease. There are other matters incidental to this ease which will be noticed in connection with the hills of exception.

Appellant reserved exception to the charge because of tbe fact that the court submitted tbe issue of principals, contending that such issue was not raised by tbe testimony. It may be questioned whether or not the court submitted the issue of principals in regard to the aggravated assault phase of the case, and that such charge was only confined to the issue of assault with intent to murder of which appellant was acquitted. There was testimony by which the jury could find that the parties were acting together in committing the assault. That was the state’s theory. Appellant’s theory was that he acted in self-defense. Appellant was driving an automobile in which was seated a “sporting woman” and her companion, named Terrell. Running in the direction of the city of Paris he met Stites, the alleged assaulted party, who was in a buggy, and behind Stites was another buggy driven by Mr. Brooks, who had with him his little son. In passing, appellant’s automobile tore off the left hind wheel of Brooks’ buggy. The parties all stopped, and a conversation occurred. Stites had a lantern on the front of his buggy, and when the accident happened Stites removed the lantern from his buggy and was looking about the ground where the accident occurred. The conversation occurred between Stites and appellant and became rather animated and led to a personal difficulty. Appellant's contention was that Stites struck him with the lantern and knocked him to his knees, and that he used his knife in cutting Stites in self-defense; that while they were fighting the woman had gotten out of the auto, and through some exclamation of hers Terrell joined in the fight and stabbed Stites severely. Appellant cut Stites on tbe face and perhaps other places with his knife. He was fighting Stites at the time that Terrell interfered in the fight and stabbed Stites, and at the same time was cutting Stites himself. The state’s theory was that appellant provoked the difficulty, and called Stites a son of a bitch, and began getting bis knife out to cut him when Stites was notified to look out, and that he used his lantern only in warding off the blows of appellant. In a general way this is enough of the case to show the two theories.

The court instructed the jury with reference to the law of principals, and informed them if these parties were acting together they could consider the testimony in view of the definition of principals, but if they should find for defendant’s theory of the case, that is, that they were not acting together at the time and self-defense was in the case, then they would disregard the law of principals. Under the authorities we are of opinion that the court was correct. If a conspiracy is shown, or the parties acted together in the commission of an offense, the court would be authorized to charge on that phase of the law. If such evidence was not in the case, the charge would be error. But if there is an issue as to whether the parties were acting together as principals, the court should submit that question to the jury for their decision, they being the judges of the weight of the testimony and credibility of the witnesses, and the issue as to whether they were acting as principals or not being in the case, the jury had the right, under appropriate instructions, to decide that question.

The same question is presented from the standpoint of testimony as shown by a bill of exceptions. There were things said and done by the different parties at the time of the fight and while it was in progress, and in fact from the time of the collision between the auto and the buggy. This was all objected to for various reasons, as shown by appellant’s bill of exceptions. For instance, one of the bills recites while the witness Stites was testifying he stated, among other things:

“Buck was sitting in the car with the hood thrown back looking at me, and he jumped out, and before I could throw this fellow loose from me he stabbed me, and I began to stagger and say: ‘Don’t let them stab me any more. Buck has killed me.’ ”

Buck was Terrell.

It is contended this was not admissible, because the evidence shows that what Buck Terrell said and did was so said and done without the solicitation of the defendant; that defendant did not know what Buck Terrell was going to do, and was not responsible for what he did. These are stated as grounds of objection and not as matters of fact. The court, however, qualifies this bill by stating that no such objection was made to this testimony. So the bill passes out from that viewpoint.

The next bill recites that, while the witness Stites was testifying, he was asked what was said when he got to where the collision was. Appellant objected to all this and anything that was said or done by Emma Bice and Buck Terrell, because the defendant is not liable for what the said Emma Bice and Buck Terrell said or did. These objections being overruled, the witness testified the woman, Emma Bice, said:

“ T am hurt worse than any. Bring the light around here.’ She began cursing so I would not go to her. She says: T am skinned from my navel down. Bring the light around here.’ ”

Appellant objected to this because the evidence shows that he (appellant) was not responsible for what the woman said. The court signs the bill with this qualification:

“That the testimony shows that, immediately after the automobile ran into the buggy, the witness Stites went back to Brooks and then on to the automobile and asked them in the automobile if they were hurt, and the reply of Emma Bice is what the defendant objects to in this bill, and while Emma Bice was talking to Stites the defendant began to curse Stites, and from that time on the whole transaction between the parties was one continuous difficulty, and the defendant Bennett and Terrell and Bice were participants in the fight, either by words or by acts or both. The testimony further shows that Emma Bice was cursing and calling on Terrell to help Bennett and was within a few feet of Bennett and Stites while they were fighting.”

Another bill recites that while Stites was on the stand he was asked the following question by the state:

“After they had cut you, and after Mr. Brooks and his boys were carrying you up the road, what, if anything, did they say, either Bennett or Terréll?”

The same objections were urged as before; that is, that the defendant was not responsible for anything that Louie Terrell said or did. The court approves this bill with this explanation:

“Some of the witnesses testified that defendant and Terrell followed Stites as he was going off and cursed Stites, and which was only a minute or two after the cutting, and was res gestae. The further explanation is given that the defendant, Buck Terrell, and Emma Bice were indicted separately for assault to murder on Stites. The facts show that these three parties were in an automobile driving on a public road going south, and that Mr. Stites and son were in one buggy and Brooks and son in another, both traveling north, and Stites and son were in front of Brooks and son, and that the automobile ran into Brooks’ buggy and smashed it up some. That Stites went back some little distance to where Brooks’ buggy was wrecked and the automobile stopped, and Stites asked Brooks if he was hurt and then asked the people in the auto if they were hurt, and Emma Bice began cursing, and, while she was talking to Stites, defendant Bennett began cursing Stites, and from that time on the whole difficulty between the parties was one continuous transaction, and the defendant, Emma Bice, and Terrell were participants in the fight either by words or acts, or both.”

We are of opinion this testimony was admissible upon the ground that it showed the acts and declarations of the parties present and participating in the trouble, and also upon the ground of res gestae, as explained by the court. It all occurred in a very few moments.

Another bill recites that, while Dr. White was testifying for the state, he was asked to describe the wounds he found on Stites. Appellant objected to any testimony being given by the witness as to the wounds inflicted upon Stites by Buck Terrell. The bill further recites that the evidence shows the wound inflicted upon -Stites by Terrell was under Stites’ arm. The court overruled the objection, and the witness testified as follows:

“Fuller and I examined him and found the stab under his left arm that went to the hollow. This stab went pretty tolerably straight in, was made when his arm was up; could not have been made otherwise. It went into the pleural cavity. It did not reach his heart. If it had, of course it would have killed him; just a little bit more it was going in the direction of his heart, but was not quite deep enough.”

It is urged this evidence is not admissible because the evidence shows that defendant is not responsible for what Terrell did, as he did not know that Terrell was going to stab Stites, and has nothing to do with what Terrell did, and he should not be held responsible for it. The court explains this bill as follows:

“That this witness did not testify who made any wounds on the witness Stites, but was merely testifying as to what wounds he found on Stites’ person when he examined him.”

This testimony was admissible. As before stated, this wound was inflicted as described by Dr. White. The inference from the testimony is this wound was inflicted by Terrell, while the wounds on the face and other parts of the body were inflicted by appellant. Appellant had hold of and was engaged in a personal difiiculty with Stites at the time that Terrell ran up and stabbed him with a knife. It is deemed unnecessary to go into the details of this testimony. Suffice it to say, there is evidence showing these parties were acting together, and the court properly instructed the jury that if they should so find they could consider the testimony with reference to their being principals, and if not then they would disregard the testimony. The court submitted the issues of assault to murder and aggravated assault. The conviction was for aggravated assault.

We are of opinion that the rulings of the court were not erroneous, and that the judgment should be affirmed, and it is, accordingly, so ordered.

PRENDERGAST, J., absent.
      <g=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    LEE v. STATE.
    (No. 4969.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Cbiminal Law <&=o1087(2) — Appeal — Filing Statement op Facts and Bills op Exception — Record.
    A statement of facts and bills of exceptions in a misdemeanor case in the county court having no official stenographer must be filed in term time or within 20 days thereafter, and, if filed after adjournment of court, the record must show the order of the court duly entered extending the time within which the filing might be made; otherwise, the statement of facts and bills of exception will be stricken on the Attorney General’s motion.
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    George Lee, convicted of receiving stolen property under the value of $50, appeals.
    Affirmed.
    Greenwood & Short, of 'Seguin, for appellant. E. Schweppe, Co. Atty., H. M. Wurtz-bach, and J. M. Woods, all of 'Seguin, and E. B. I-Iendrieks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of a misdemeanor, receiving stolen property under the value of $50. His prosecution was in the county court of Guadalupe county, which adjourned on the 3d day of February, 1918. No order granting permission to file the statement of facts and bills of exception after adjournment is found in th'e record. These appear to have been filed on the 26th day of February, 1918. The state, through the Assistant Attorney General, has filed a motion to strike them out, because not filed during the term.

This court has held uniformly that a statement of facts and bills of exceptions in a misdemeanor case in the county court having no official stenographer must be filed in term time or within 20 days thereafter, and if filed after adjournment the record must show the order of the court duly entered extending the time within which the filing may be made. Durham v. State, 69 Ter. Cr. R. 71, 155 S. W. 222; Chaney v. State, 62 Tex. Cr. R. 67, 136 S. W. 482; Whitaker v. State, 62 Tex. Cr. R. 36, 136 S. W. 1072; Morris v. State, 63 Tex. Cr. R. 375, 140 S. W. 775; Farrell v. State, 64 Tex. Cr. R. 200, 141 S. W. 535; Hall v. State, 70 Tex. Cr. R. 240, 156 S. W. 644; Mueller v. State, 61 Tex. Cr. R. 544, 135 S. W. 571; Mosher v. State, 62 Tex. Cr. R. 42, 136 S. W. 467; Hamilton v. State, 65 Tex. Cr. R. 508, 145 S. W. 348. See Vernon’s C. C. P. p. 823. Following these authorities, the motion of the state must be sustained.

The information does not appear to be subject to the criticisms of appellant made in h'is motion to quash. Absence of bills of exceptions and statement of facts leaves nothing further to review.

It is therefore ordered that the judgment of the lower court be affirmed.

PRENDERGAST, J., absent
      (gc^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SPOHN v. STATE.
    (No. 4968.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. Cbiminal Law <®=»1090(14) — Record—Necessity fob Statement op Facts — Instructions.
    In the absence of bill of exceptions and statement of facts, alleged errors in refusing instructions cannot be determined.

      2. Criminal Law <§=1090(16) — Record—Necessity of Reserved Exceptions.
    In absence of bill of exceptions and statement of facts, grounds of motion for new trial cannot be considered.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Ernest Spolm was convicted of rape, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for tlie State.
   DAVIDSON, P. J.

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

The record contains neither a statement of facts nor bill of exceptions. There were four special charges refused. In the absence of the evidence we are unable to determine whether the court erred in refusing them. The grounds of the motion for new trial cannot be considered.

For want of the testimony and reserved exceptions, the judgment will be affirmed.


author: PRENDERGAST, J.

text:
    MAYS v. STATE.
    (No. 4953.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    Indictment and Information <®=123 — Venue — Allegation of.
    Where a complaint charged the offense of using profane, obscene, and indecent language over a telephone as having been committed in Wichita county, and an information founded thereon charged such offense in the county of -, a conviction must be reversed for failure of the information to allege venue as required by Vernon’s Ann. Code Cr. Proc. 1916, art. 478, subd. 5.
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Edna Mays was convicted of using vulgar, profane, obscene, and indecent language over a telephone, and appeals.
    Reversed and remanded.
    T. F. Hunter, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

By complaint and information appellant was charged with using vulgar, profane, obscene, and indecent language over a telephone, and upon trial was convicted. The complaint properly alleged that she committed the offense in Wichita county. The information, however, alleged that she committed the offense in the county of-■, and state of Texas. She attacked the information and conviction as invalid because the information did not charge that the offense was committed in said county.

The statute (article 478, subd. 5) requires as one of the requisites of an information that it must appear that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed. This court has repeatedly held that, although the venue is properly alleged in the complaint, an information founded thereon must itself allege the venue; that the allegation of it in the complaint is not sufficient. Lawson v. State, 13 Tex. App. 83; Orr v. State, 25 Tex. App. 453, 8 S. W. 644; Smith v. State, 25 Tex. App. 454, 8 S. W. 645; and cases cited in these.

Following these decisions, this cause must be reversed and remanded, which is accordingly ordered.
      <©s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FERGUSON v. STATE.
    (No. 4988.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Criminal Law <§=1102 — Appeal—Statement of Facts — Questions and Answers.
    On a criminal appeal, a statement of facts made up of questions and answers cannot be considered, and the Attorney General’s motion to eliminate it from consideration will be sustained.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Roscoe Ferguson, convicted of theft of property of over $50, appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of property over $50, and given five years in the penitentiary.

There is but one bill of exception in the record, and this was reserved to the action of the court overruling the motion for new trial. This bill adds nothing to the motion for new trial, nor does it undertake to verify any statements made in the motion. The bill does not change, add to, or detract from the contents of the motion for new trial.

The Assistant Attorney General moves to eliminate the statement of facts from consideration because it is made up of questions and answers. An inspection of the statement of facts shows his position is sustained. Under the authorities the statement of facts cannot be considered. The motion of the Assistant Attorney General will therefore be sustained.

In th'e absence of statement of facts under the condition of the record there is no question presented that can be reviewed.

The judgment will be affirmed.

PRENDERGAST, J., absent.


text:
    FERGUSON v. STATE.
    (No. 5010.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Roscoe Ferguson was convicted of burglary, and be appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This case is a conviction for burglary. The statement of facts is in the same condition as in No. 4988 against the appellant this day decided, 202 S. W. 733, and will therefore not be considered. This leaves the record before us without any question that can be revised.

The judgment will be affirmed.

PRENDERGAST, J., absent.


text:
    TARVER v. STATE.
    (No. 4985.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    Assault and Batteey @=>7S — Highways— Collision — Aggravated Assault — Plead - ingt-“Caeelessly and Negligently Collided” — “Geoss Negligence.”
    Under Acts 35th Deg. c. 207, § 35 (Vernon’s Ann. Pen. Code Supp. 1918, art. 1022a), providing that, if any driver or operator of a motor vehicle upon a public highway shall willfully or with gross negligence collide with or cause injury to any person upon such highway, he shall be guilty of aggravated assault, a complaint and information charging that defendant did unlawfully in and upon named persons “make an aggravated assault, by then and there carelessly and negligently colliding with a vehicle,” was insufficient, in that it failed to charge that defendant either willfully or with gross negligence collided with another vehicle; the words “carelessly and negligently collided” not charging “gross negligence.”
    (Ed. Note. — For other definitions, see Words and Phrases, First and Second .Series, Gross Negligence.]
    Appeal from Hardin County Court; W. S. Parker, Judge.
    Grady Tarver was convicted of an aggravated assault, and appeals.
    Reversed, and prosecution ordered dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under section 35 of chapter 207, p. 484, of the General Laws of the 35th Legislature (Vernon’s Ann. Pen. Code Supp. 1918, art. 1022a), which reads as follows:

“If any driver or operator of a motor vehicle or motor cycle upon the public highways of this state shall willfully or with gross negligence, collide with, or cause injury to any other person upon such highway, he shall be held guilty of aggravated assault, and shall be punished accordingly, unless such injuries result in death, in which event said party so offending shall be dealt with under the general law of homicide.”

It will be noticed the statute provides that in order to constitute this offense the driver of the character of vehicle mentioned must “willfully or with gross negligence, collide with, or cause injury to any other person,” etc. In order to constitute this offense, the terms of this statute must be followed, both in the allegation and by the evidence. In order to charge the offense, the pleading must aver that the driver or operator shall willfully collide with or cause injury to another person, or such collision shall be through gross negligence; otherwise, the offense would not he set forth in the terms and definition of the offense.

The complaint charges that appellant "did then and there unlawfully, in and upon Miss Alice Cook, Miss Bennie Cook, and Dewey Cook, make an aggravated assault, by then and there carelessly and negligently colliding with a vehicle,” etc. The information follows the complaint. Motion in arrest of judgment was overruled. It should have been sustained. The complaint and information do not charge that appellant either willfully or with gross negligence collided with the vehicle. The pleader should have charged that the accused did so willfully collide, or did with gross negligence so collide. He may incorporate both, or only one, of the grounds or causes specified; but he must, in defining either or both, follow the language of the statute. We have a rule, however, that where the statutory words are not followed in the pleading, that those employed must be of equal or greater significance than those employed in the statute. It is evident from reading the pleading that this rule was disregarded. The word “willfully” nowhere occurs in the pleading, and where the pleader undertook to charge “negligence” he only uses the language that he “carelessly and negligently collided.” This does not charge “gross negligence.” The language is neither tantamount nor equal to the language in the statute, but is of much less significance. Under the pleading it would take less evidence to convict than under the statutory definition. We are of opinion, therefore, the motion in arrest of judgment should have been sustained.

The pleading being insufficient to sustain the charge under the statute mentioned, the judgment will be reversed, and the prosecution ordered dismissed.

PRENDERGAST, J., absent.
      «gpmFor other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DITTO v. STATE.
    (No. 4970.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. Bueglaby <§=>41(1) — Evidence — Sufficiency.
    Evidence held insufficient to sustain conviction of burglary.
    2. Burglary <@=>35, 41(1) — Evidence—Sufficiency — Extrinsic Aids — Tracks.
    While tracks corresponding to those of defendant, in connection with other evidence, may be shown, they are not alone sufficient to convict of the offense of burglary.
    3. Criminal Daw <@=>945(2) — New Trial — Newly Discovered Evidence.
    Where conviction of burglary rested largely on finding tracks similar to those of accused at the scene of the burglary, and after conviction, a third person made affidavit that his house had been burglarized and a similar track found while accused was in jail, such testimony warranted new trial on the ground of newly discovered evidence.
    4. Criminal Daw <§=>1001 — Sentence—Suspended Sentence — Offenses Subject.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. S65b, it is only burglary of a private residence, and not burglary of a storehouse, which prevents the imposition of a suspended sentence.
    5. Criminal Daw <§=>719(1) — Argument of Counsel.
    In prosecution of former train porter for burglary, argument that the oldest train porter on a certain railroad had been sent to the penitentiary was improper.
    Appeal froto District Court, Beeves County; Clias. Gibbs, Judge.
    Will Ditto was convicted of burglary, and he appeals.
    Reversed and remanded.
    Jno. B., Howard and Clay Cooke, both of Pecos, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary and allotted 2 years in the penitentiary.

Dawson testified that his storehouse was burglarized at night, and about $1.50 in change taken from his money drawer. The •breaking and entry of the house we deem unnecessary to discuss. Appellant was arrested the next morning, and placed in jail, indicted, tried, and convicted. Among other things, it is contended the evidence is not sufficient to support the conviction. Appellant was not found in possession of the stolen money. The money he had in his possession did not correspond with that taken from the house. Appellant was working in a barher shop, and had been in Pecos City a few days when the burglary occurred. The only evidence which tends to connect the defendant with the transaction was the comparison of the shoe he was wearing at the time he was arrested with the track found near the window of the store which is said to have been broken. The sheriff and the city marshall testified that appellant’s shoe corresponded with the track found at the place indicated.

We are not satisfied to affirm this judgment, with this as the only criminating fact. Tracks in connection with other evidence may have some cogency tending to illustrate the case, or connect an accused with a given offense, but at best it is unsatisfactory. This is practically the only evidence in the case. We are of opinion the conviction should not be sustained, especially in view of tbe fact that there are no other criminating circumstances.

There was a motion for new trial filed with attached affidavits setting up various matters of testimony which might be taken into consideration in reaching the conclusion that appellant should have an-j other trial. Among other things is an affidavit of a witness to the effect that after | the alleged burglary of Dawson’s storehouse his house was burglarized, and a track very similar to that found near the Dawson house was found at his house. This is brought within the rule of newly discovered evidence, and may be worth something upon another trial before a jury, because appellant at the time of the burglary of the second house was incarcerated in jail, and therefore could not have committed the other burglary.

Appellant filed a plea for suspended sentence. Evidence was introduced, but the court declined to submit the issue, because tbe crime of burglary was not brought within the statute justifying or authorizing a suspension of the sentence. This was not burglary of a private residence but a storehouse. In his conclusion the trial judge was in error. Article 865b, Vernon’s Ann. O. O. P., recites that it is only the burglary of a private residence which prohibits the suspended sentence. This was an amended statute, omitting burglary and confining the interdiction of a suspended sentence to burglary of a private residence. Appellant was entitled to the charge, and it should have been given. Upon another trial this matter should be presented to tbe jury.

The testimony alleged to be newly discovered will be produced upon another trial, and it is unnecessary to discuss it.

There was a bill of exceptions reserved to tbe statement of tbe prosecuting officer to tbe effect that a train porter known as “T. P.” was in the penitentiary for violation of the law, and that he was the oldest train porter on the Texas & Pacific Railroad running from Ft. Worth to El Paso, and had been such train porter for 35 years, and yet he had been sent to tbe penitentiary. The evidence shows that appellant had served as a train porter for 15 years. The argument of counsel seems to have been directed to the fact that, inasmuch as the other train porter was in the penitentiary, this should be used by the jury against defendant. There is no evidence in the record with reference to the other train porter being in the penitentiary. In fact, he seems not to have been known in the record at all except from the statement of the prosecuting counsel. Upon another trial these remarks will not be indulged. We are not willing, in the condition of this record, to sustain this conviction, and believe appellant should have another trial in order that his legal rights may be properly adjusted and passed upon. Nor are we satisfied, in view of this record, to sustain the judgment of the trial court because of the sufficiency of the testimony.

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


text:
    MANUEL v. STATE.
    (No. 4943.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    Burglary <®=>41(1) — Evibence — Sufficiency.
    Evidence held, insufficient to sustain conviction of burglary.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    'Albert Manuel was convicted of burglary, and he appeals.
    Reversed and remanded.
    John T. Duncan, of La Grange, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant has appealed from a conviction for burglary with the lowest penalty assessed. He contends the evidence was insufficient to sustain the conviction. The majority of this court is of opinion that this contention should be sustained. This writer is of the opinion that the evidence was sufficient. In deference to the opinion of the majority, the judgment will be reversed. It will be unnecessary to discuss or decide any other question.

A brief statement only of the testimony will be given. Most of the material facts were proven without contradiction. They show that on the last Saturday night of November Frank Mika’s saloon at Plum was broken into, and a considerable quantity of liquor in bottles and two jugs of liquor and some cigars were stolen. The entry was effected by force through one of the back windows. One of the window panes had before then been broken. Through this broken pane, by removing the wire gauze nailed over the window, a person could insert his hand and remove the fastening above the window sash, and by raising it and tearing off the gauze entrance of the whole body of a person could be made, and this was shown to be the manner in which the entry was made that night. It was shown by witnesses that appellant was at this back window the Saturday before the night of the burglary, and at the time to have seen the condition of this window, and, as one of the witnesses expressed it, appellant was trying with his finger on the broken window pane, “and tried with his fingers this broken glass, I mean that he fooled with the window.” The burglary and theft were discovered early Sunday morning. The owner called an officer, and he and others, being told about appellant being at this window and manipulating it the day before, went to his house, about half mile distant, to search for the stolen property. They found none of it in his residence, but did find in his crib secreted two jugs of the stolen liquor and some of the stolen cigars. Appellant had denied before then to the officer having any liquor on his place. He was not with the officer and owner when they found these two jugs of liquor and some of the cigars. They then got and took him to the crib, showed him what they had found, and asked him about it. He then stated that he knew nothing about it, had not placed it there himself, and laid no claim to it. This, in brief, is the substance of the testimony.

Under the opinion of the majority that the evidence is insufficient to sustain the verdict, the judgment is reversed, and the cause remanded.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MGRROW, J.

text:
    WHITE v. STATE.
    (No. 4893.)
    (Court of Criminal Appeals of Texas.
    April 10, 1918.)
    1. Criminal Law <@=>305(3) — Evidence—Res Gestjb.
    In a prosecution for assault with, intent to murder, fact that after the assaulted person had received the injuries inflicted by defendant, and after he had fallen, his brother engaged in an encounter with defendant, during which defendant’s brother entered the fight and stabbed the assaulted person’s brother in the back, was admissible as part of the res gestse.
    2. Criminal Law <@=>404(1,4) — Evidence — Coat of Injured Person.
    In such prosecution the brother of the person assaulted was improperly permitted, there being no question as to the location, effect, and character of his wounds, to pull off the coat he was wearing at the time of the encounter and exhibit it to the jury to indicate where it was cut, pointing out the blood which resulted from the wounds he received; for, though it is often permissible to introduce in evidence the garments worn by one who has received injuries, this is only when the evidence serves to illustrate or solve some question in controversy.
    3. Criminal Law <@=>543(1) — Former Testimony-Predicate.
    In the absence of predicate laid for the reproduction of testimony of an absent witness on former trial by showing his death or removal from the state, it was not competent for the state to reproduce his former testimony.
    4. Criminal Law <@=3407(1) — Evidence — Implied Confession — Silence.
    Where a statement or remark was made in defendant’s presence which he understood and which called for a reply, his silence or acquiescence may be shown as a confession if he was not under arrest.
    5. Criminal Law <@=>539(1) — Evidence — Former Testimony — Implied Confession by Silence.
    In view of Code Cr. Proc. art. 790, providing that defendant may testify, but that his failure to do so shall not be held against him, defendant’s silence on first trial, when a witness, absent on second trial, testified that defendant, at the time of the affray involved, made a remark indicating murderous intent, does not render admissible on second trial the testimony of the absent witness as to such remark on the ground that, defendant having been present at first trial when the witness gave the testimony, and having heard it, his silence was a confession.
    6. Homicide <@=3h>(>(2) — Assault to Murder —Evidence—Intent.
    In a prosecution for assault with intent to murder the fact that after the assault, when the assaulted person’s brother fell on the bed, defendant said, “God damn you, I will kill you, too. while I am at it,” was admissible against defendant as bearing on his intent to kill the assaulted person.
    7. Criminal L'aw <@=>1109(6) — Appeal — Prejudicial Error.
    In a prosecution for assault to murder, the improper admission of former testimony of an absent witness as to a threat, and the improper admission of the bloody coat of the assaulted person’s brother, taken in connection with the record, and verdict fixing punishment at seven years’ confinement in the penitentiary, were error requiring reversal of conviction.
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Ab White was convicted of assault with intent to murder, and he appeals.
    Reversed.
    A. R. Eidson, of Hamilton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MGRROW, J.

The indictment and conviction were for assault with intent to murder. A party was in progress at the residence of a brother of appellant. Roscoe Clawson came to the party in a more or less intoxicated condition. While he was standing in or near the door appellant, forcing himself in, according to the state’s evidence, pushed him aside, remariung, “Get out of the way or I will run over you.” Appellant and his witnesses claim the remark was made in a jocular way, and that appellant’s demeanor so indicated, and that later appellant told Clawson he meant no harm by what he had done and said. The state’s testimony tends to show that appellant was mad and his maimer insulting. He went to the fireplace, taking the poker and poking the fire. Roscoe Claw-son followed him, complaining in a manner indicating anger, cursed, and told appellant he could not run over him. As Roscoe Claw-son approached appellant Archie Clawson also approached, and said to Roscoe, “Stay with him; I am with you.” After some words had passed appellant struck Roscoe two licks with the iron poker about 2% feet long. Roscoe was knocked down and severely injured; his skull being fractured. The state’s theory and evidence tends to show that at and prior to the striking of the blows there was no demonstration by Roscoe Claw-son to attack appellant, but that he was only engaged in the use of angry words. Appellant’s theory and evidence tends to show that Roscoe Clawson drew his hand out of his pocket, and that his manner and words indicated an intention to assault appellant.

After Roscoe Chvwson was downi, ¡hjis brother Archie attacked appellant, as he claims, with his fists, and, as appellant claims, with some instrument which inflicted a wound on his head, causing bloodshed. Appellant struck Archie Clawson on the arm with the poker, breaking one of the bones. During the encounter between Archie Claw-son and appellant the brother of appellant stabbed Archie Clawson in the back several times, after which Archie fell on the bed. There was testimony that after Archie Claw-son fell on the bed appellant struck the bed with the poker, saying: “I will kill you, too.” Appellant disclaimed any intent to kill or seriously injure Roscoe Clawson, and claimed to have acted in the defensive throughout The evidence discloses that there were no prior difficulties or grudges, and that the affray grew out of the sudden quarrel.

We are of opinion that the fact that after Roscoe Clawson had received the injuries inflicted upon him by appellant, and after he had fallen down, his brother, Archie Clawson, engaged in an encounter with the appellant, during which encounter appellant’s brother entered into the fight and inflicted some stab wounds upon the bach of Archie Clawson, was admissible as part of the res gestso. Wharton’s Crim. Ev. p. 122; English v. State, 34 Tent. Cr. R. 190, 30 S. W. 233; Crews v. State, 34 Tex. Cr. R. 533, 31 S. W. 373.

The fact that while appellant and Archie Clawson were engaged in a fight Perry White, appellant’s brother, entered into the difficulty and stabbed Archie Clawson was not disputed. There was no controversy over the fact, or that he did stab him three times in the bach with a hnife; that immediately after he was so stabbed Archie Clawson fell on the bed, and the difficulty ceased.

On the trial Archie Clawson was permitted to pull off the coat he was wearing at the time of the encounter, and to exhibit it to the jury and point out the places where his coat was cut, and point out the blood on the coat which resulted from the wounds received. We thinh the appellant’s complaint of this evidence was well founded. It is often permissible to introduce in evidence the garments by one who has received injuries, but this occurs only when the evidence thus introduced serves to illustrate or solve some question in controversy. Branch’s Ann. P. C. § 1855. That such evidence has a tendency to inflame the minds of the jury is a recognized incident of criminal law. Wigmore on EV. §§ 1157 and 1806. And it is to be rejected where it aids the jury in determining no controverted issue. We quote from Mr. Branch in his Ann. Crim. Proc. p. 1032, as follows:

“If there is no question as to the location of the wounds and their effect and character, bloody clothing should not be exhibited to the jury if its admission and exhibition could only serve the purpose of inflaming the minds of the jury. Cole v. State, 45 Tex. Cr. R. 232, 75 S. W. 527; Christian v. State, 46 Tex. Cr. R. 50, 79 S. W. 562; Melton v. State, 47 Tex. Cr. R. 455, 83 S. W. 822; Crenshaw v. State, 48 Tex. Cr. R. 77, 85 S. W. 1147; Puryear v. State, 50 Tex. Cr. R. 462, 98 S. W. 258; Williams v. State, 61 Tex. Cr. R. 363, 136 S. W. 771; Lacoume v. State, 65 Tex. Cr. R. 146, 143 S. W. 626; Corley v. State, 69 Tex. Cr. R. 626, 155 S. W. 227.”

The Assistant Attorney General expresses the opinion that the bloody coat was not admissible. 'He suggests, however, that it is possible that it was proper to receive it as tending to show the intent of appellant. Unless there was evidence that appellant and Perry White were principals in the conflict between appellant and Roscoe Clawson, it is not clear that the extent or character or location of the knife wounds inflicted by Perry White on Archie Clawson would be relevant to show the intent of Ab White (appellant) in striking Roscoe Clawson with a poker. At all events the knife wounds inflicted by Perry White on Archie Clawson were proved Without dispute as part of the res gestae, and the clothes worn by Archie Clawson did not tend to solve any controverted issue.

It appears there had been a previous trial of appellant for this offense, at which trial a witness named Homer Lawson testified that at about the conclusion of the encounter between Archie Clawson and appellant, when Archie Clawson fell on the bed, appellant said, “God damn you, I will kill you, too, while I am at it.” At the trial from which this appeal is prosecuted Homer Lawson was not present. There was no predicate laid for the reproduction of his testimony either by showing Ms death or removal from the state. In the absence of such predicate it was not competent for the state to reproduce his testimony. Porch v. State, 51 Tex. Cr. R. 7, 99 S. W. 1122; Hobbs v. State, 55 Tex. Cr. R. 299, 117 S. W. 811.

While appellant was on the stand testifying as a witness in his own behalf he was required to testify that on the former trial Homer Lawson did give the testimony above quoted. The appellant made timely objections to this upon the ground that it was a reproduction of the testimony of the absent witness Homer Lawson unauthorized for want of the requisite predicate. The court admitted the testimony on the theory, as we understand the explanation, that the appellant having been present at his trial when Lawson gave the testimony, and having heard it, it was admissible against him. There is a well-defined rule of evidence often applied in this state, which is stated by Mr. Branch in his Ann. Texas P. C. as follows:

“Where a statement or remark is made in defendant’s presence which he understood and which called for a reply, his silence or acquiescence may be shown as a confession where he is not under arrest.” Moore v. State, 15 Tex. App. 18, and other cases listed.

We think this principle would not be applicable to the facts under discussion for the reason that at the time the witness Lawson gave the testimony on the former trial of appellant his silence was not a circumstance to be taken against him. This is so by virtue of the statute, which provides that he may testify, but that his 'failure to do so shall not be held against him. To make the application of the principle quoted would have the effect of holding that because appellant did not go on the stand and deny the testimony of Lawson on the former trial of appellant he would be held to have adopted it and made it his own statement. It has frequently been held that the inhibition against referring to appellant’s failure to testify applies not only to the instant trial, but to any previous trial. Richardson v. State, 33 Tex. Cr. R. 518, 27 S. W. 139; Wilson v. State, 54 Tex. Cr. R. 505, 113 S. W. 529; Hare v. State, 56 Tex. Cr. R. 6, 118 S. W. 544, 133 Am. St. Rep. 950; Article 790, C. C. P. The issue was closely drawn as to whether in fact appellant did make the statement imputed to him referred to above. Evidence that he did se, when properly produced, was admissible and damaging to appellant, because it bore directly upon his intent to kill Roscoe Clawson, the very question involved in the trial of this case. The evidence on the whole is close. The appellant’s theory that he intended no affront to Roscoe Clawson by pushing him at the time he came into the room, and that he subsequently before the difficulty so informed Roscoe Claw-son, was supported by evidence besides his own. The fact that the brother of Roscoe Clawson encouraged him to engage in a difficulty with appellant was undisputed, and there was a sharp issue of fact as to whether before he struck Roscoe Clawson the latter made a demonstration to attack appellant. There were no antecedent troubles between appellant and Roscoe Clawson proved, and appellant insisted that in delivering the blows he had no intent to produce serious injury.

It has frequently been held, where the issue of guilt or innocence, or the grade of the offense, is closely controverted by conflicting evidence, particularly where the punishment fixed is heavy, that the admission of illegal evidence of damaging facts calculated to affect the minds of the jury adversely to appellant, or to enhance the punishment, is error requiring a reversal of the judgment. Barker v. State, 26 S. W. 400; Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1123; Faulkner v. State, 43 Tex. Cr. R. 325, 65 S. W. 1093; Taylor v. State, 41 Tex. Cr. R. 148, 51 S. W. 1106; Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 19120, 126.

In our opinion the admission of the reproduction of the threat testified to by the witness Lawson on the former trial and the admission of the bloody coat were both illegal and harmful, and, taken in connection with the record and the verdict of the jury fixing the punishment at seven years’ confinement in the penitentiary, require a reversal of the judgment of the court below, which is accordingly ordered.

PRENDERGAST, J., absent.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes