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

text:
    ABLES v. STATE.
    (No. 3579.)
    (Court of Criminal Appeals of Texas.
    June 2, 1915.
    Dissenting Opinion, July 7, 1915. Additional Opinion, July 7, 1915.)
    1. Larceny <&wkey;55 — Prosecution—Sufficiency oe Evidence.
    Evidence, in a prosecution for the theft of money, held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dee. Dig. <^=>55.]

      2. Ceiminal Law <&wkey;392 — Evidence—Rele- • VÁNCY.
    In a prosecution for the theft of money, where defendant’s sister testified in his favor as to having kept a sum of money for him in her trunk, though she did not know the exact amount, but that her husband did, the state had a right to inquire where the husband was and why he was not present and did not testify, as a predicate for any legitimate presumption ■against the defendant; and hence evidence that the husband was in jail in Oklahoma was relevant, under the rule that either side may do away with or lessen the adverse effect of any proper deduction that may be made from evidence offered against him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 852; Dec. Dig. &wkey;>392.]
    Davidson, J., dissenting.
    Appeal from District Court, Hopkins County ; Wm. Pierson, Judge.
    C. A. Abies was convicted of theft, and he appeals.
    Affirmed.
    C. E. Sheppard, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of $740, from J. B. Cutts, alleged to have been committed January 9, 1914, and his punishment assessed at the lowest prescribed by law.

Appellant earnestly' insists that the evidence is insufficient to sustain the verdict. This is the most serious, and practically the only, question in the case. We have carefully read, and several times considered, all of the evidence.

Appellant himself did not testify. He introduced his sister, Mrs. Alsup, and Mrs. Sneed. If the jury had believed their testimony, they perhaps would have acquitted him. Evidently they did not believe their testimony. This, under the law, was exclusively for the jury. The statute expressly says, in effect, they are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony. Therefore we think it'unnecessary to here state even the substance of their testimony. The question then for this court to determine is whether of not the incriminating testimony and the inferences to be drawn therefrom was, as a question of law, sufficient to sustain the verdict. In our opinion it was. The jury heard the witnesses testify, saw them when they did so, saw their manner of testifying, and from all of this were better able to determine the truth than this court can be from merely reading in cold type what the statement of facts shows.

We do not propose to quote at length the testimony. We will give, however, the substance of the materikl and salient portions thereof.

J. B. Cutts lived in the southern portion of Hopkins county, and had lived there for many years. Mr. S. A. Abies, the father of appellant, had lived in the same community only a few years. Appellant was a young man then 23 years of age, but had not lived with his father in that community; was a stranger therein. Por a few years before then he had lived in different locations in Oklahoma, though he had visited his father on occasions a year or two before this time. 1-Ie arrived at his father’s on a visit on January 8th. On January 9th a widow in the same community died. Cutts and his wife and other neighbors went to the deceased’s house on the morning of the 9th. Cutts remained there practically all day, from about 10 o’clock in the morning until about sundown in the evening. Appellant and his father together went to the house of the deceased in the morning, but remained only a short time. They together returned there late in the evening and then remained only a short time.

Mr. Cutts testified: That when he went to the house of this deceased lady that morning he had $740 currency in his left-hand hip pocket in a draw-string leather pouch. That practically during the whole time he was there he stayed out in the yard sitting on a wash bench or spring seat, alternating and shifting his position from one to the other all day. That he had carried this money thus in his pocket for several months prior to this. That it was in three different rolls; twenty $20 bills in one roll, in another $10 bills, and in the other mostly $20 bills, with a few 10’s among them, and probably some 5’s. Two hundred dollars of the $20 bills was new money; looked like it had never been used at all. The other bills showed to have been used a good deal. Twenty dollars was the largest denomination of any of this money. The prevailing denomination of the bills of the $240 was $20 bills. That from time to time during the whole day he was there he felt for his money to see whether it was there or not, and at no time while he was there did he miss it. That the last time before leaving that he felt for it was awhile before sundown, and he had the money at that time; that Mr. Abies (appellant’s father) and appellant were out in the yard where he was at this last time that he felt and found that he had the money in his pocket. That there was nobody else out there at that time, except those two persons and himself; that just about sundown he left to go home; his home was west and Mr. Abies’ home east from the house of the deceased lady. That there was nobody else out there at the time he left, except Mr. Abies and appellant. Mr. Abies testified that when he and appellant left there wasn’t any one outside. “We was the last ones.” Mr. Chtts further testified that he got about 250 yards from the deceased lady’s house on his way home when, as he went to go through a wire fence, he felt for his money and discovered that it was gone. He immediately retraced his steps, hunting for the money, over the road Le had just gone, thinking then that he might hare lost it on the road; he did not find it. He got back to the yard of the deceased lady and hunted for it and could not find it. That there was nothing along the road that he had traveled after he left and started home that would conceal the money if he had dropped it. That it was a plain open road, plumb clean, traveled a good deal. That there was not anything to keep him from finding the pocketbook if he had lost it after he started home. That he was in the road all the time. That no one else went along that road from the time he started home, discovered his loss, and went back to the house of the deceased. That when he could not find his money he started after Mr. Abies and appellant and overtook them. That when he got in about 100 yards of them, he hailed them and they stopped. That he went up to where they were and asked if they had found his pocketbook where he had been sitting, and described it. That Mr. Abies said he did not; that he had seen his (Cutts’) pocketbook sticking out of his pocket. That Cutts then said to appellant, “I am sure one of you picked it up,” and said, “I lost it right there where you was at,” and defendant said he did not. That he (Cutts) stood and looked at them about a minute and turned and walked off. That he later inquired of all who were at the house of the deceased at the time, and none of them had found his money.

Mr. Joe M. Clower testified that he was cashier of the First State Bank at Klondike in Delta county, in 1914. Klondike was shown to be 25 or 30 miles west of north of Sulphur Springs, and where Mr. Cutts lived was 10 or 15 miles west of south of Sulphur Springs. Mr. Clower further testified that on February 13, 1914, appellant deposited ?600 in his bank at Klondike; that it was mostly $20 bills, some 10’s and possibly some 5’s, mostly 20’s; that at the time appellant made this deposit, appellant kept some money, he saw it, but could not tell how much it was; that there were several bills in the roll; that the money he deposited had been carried in a roll some time and the bills were crimped, very badly crimped — some of them looked like they had been crowded down some time — that some of the bills then deposited by appellant were new and some were old; that none of it was of a higher denomination than $20: that Mr. Lilly, one of the customers of the bank, was present at the time, and he asked appellant where he was from ; that appellant said Caney, Okl.; that when asked if he knew a certain banker there he said no; that he and Mr. Lilly asked him where he got the money, and he said he had sold out in Oklahoma; that he had sold a pair of mules for $400 of the money.

Mr. Joe Lilly testified substantially the same tning as did Mr. Clower. In addition, that he congratulated appellant at the time for depositing his money, and told him it was a good idea; that when he saw that he did not deposit all of his money but put some back in his pocket, he said to him: “Son, I would leave all that money here; I would not carry all that money in my pocket.” Appellant seems to have made no reply to this, but put the other money back in his pocket, depositing only the $600.

Mr. Charlie Phillips, who married a sister of appellant, testified that he-did not know appellant until about January, February, and April, 1914; that in April he sold him a mare and colt for $140; that appellant paid him a $20 bill down at the time, and, wanting some money himself, appellant gave him (Phillips) a check on the Klondike Bank for $200; that he put this check in the Citizens’ National Bank for collection; the cheek was shown to have passed through other banks, finally reaching the Klondike Bank, where it, was paid and remitted; that when Phillips got returns from the check, he gave appellant a check for $80 of the money, and appellant deposited that check in the State Bank. These transactions seem to have occurred at Sulphur Springs in Hopkins county. It seems that Cutts soon afterwards heard of this, garnisheed the Klondike Bank, at least tied up the balance of the money in that bank, and that appellant was arrested at that time, charged with this offense; that he had an examining trial; and that Mr. Clower testified at that time, appellant being present and heard-his testimony.

Mr. Clower further testified that in the summer of 1914, he saw appellant in Klondike with a wagonload of peaches, selling them, and he bought some of the peaches from appellant; that in this transaction he recognized him, and asked him when the case was going to come up; that on this occasion appellant went into the bank where he was, and was talking about the case, and especially about Mr. Clower’s testimony on the examining trial; that appellant then told him that he (Clower) must be mistaken, and had him mixed up with somebody else about saying that he sold a span of mules in Oklahoma'; that he never owned any mules, and never sold any in Oklahoma; that appellant then asked him if there) was not four $100 bills in the $600 that he had deposited with his bank on February 13th. And he also told witness that he must have been mistaken in his testimony on the examining trial when he said that he (appellant) told him at the time he deposited the money that he was from Oklahoma. Mr. Clower further testified that there were no $100 bills in the money appellant had deposited with him ; that there were no bills of a higher denomination than $20; that when appellant, on this occasion, was talking to him about the denomination of the bills that he had deposited, he asked him if he did not remember about the four $100 bills; that he told him no; that appellant insisted; and that he then examined his books and daily reports where they had itemized the denomination of their bills, and they had no $100 bills on that day.

It is noticeable that while Mr. Abies (appellant’s father) testified that he (Mr. Abies) did not see Mr. Cutts’ money, he fails wholly to testify that appellant did not find and take it. They were together constantly while at the deceased lady’s house, on their second visit late in the evening, remained there together alone after Mr. Cutts left them, starting to his home, and left the dead lady’s place when no one was in the yard, except them, and stayed constantly together from then until Mr. Cutts hailed them, with the result stated above.

The testimony of Mr. Cutts and Mr. Abies, taken together, unquestionably puts appellant where he alone could have found and taken Cutts’ money, and excludes the idea that any other did or had the opportunity to get it. While the testimony of Mr. Cutts and the banker and Mr. Lilly could not and did not, with absolute certainty, identify the money which appellant deposited in the Klondike Bank as that of Mr. Cutts, taking the description of it and the circumstances all together, they most certainly establish such a state of fact as that the jury were authorized to believe, as they evidently did believe, that the money that appellant deposited in the 'Klondike bank was that of Mr. Outts which he had lost on' the occasion stated. No other reasonable inference could be drawn from all the facts and circumstances.

As stated above, Mrs. Alsup, appellant’s sister, testified in his favor. If the jury had believed her testimony, it would have tended to show that in December, 1913, and for some time prior thereto, appellant had had her to keep for him in her trunk a considerable sum of money. She did not know the exact amount, nor purport to know the exact amount; that she did not count it. She said that appellant and her husband counted the money which she kept for appellant, and that her husband knew how much there was; that she only knew from hearsay. Thereupon, on cross-examination of her, the state asked her where her husband was. She answered in Oklahoma. The state then asked her where and what he was doing in Oklahoma, to which question appellant objected on the ground that it was immaterial, irrelevant, and prejudicial to his rights. The court overruled these objections, and she answered that her husband was in jail in Oklahoma. It will thus be seen that appellant’s brother-in-law, Mr. Alsup, was a most material witness for him. He was not present and .did not testify. The state had a right to probe this matter to ascertain where this witness was and why he was not present and did not testify. The fact that he was thus related to appellant and was such a material witness that, if Mrs. Alsup’s testimony was true, appellant would have had him there to testify, and, if not, the state had the right to know where he was, so that it could get him there and have him testify in dispute of Mrs. Alsup’s testimony. Jones v. State, 7 Tex. App. 105; Thompson v. State, 11 Tex. App. 55; Logan v. State, 53 S. W. 695; Jackson v. State, 56 Tex. Cr. R. 29, 117 S. W. 990; Sweeney v. State, 146 S. W. 888, and authorities cited. The court did not err in overruling appellant’s objections to this testimony of Mrs. Alsup.

The court gave a| most complete and apt charge, safeguarding appellant’s rights in every way. The two questions above decided, as we understood from appellant’s able attorney in submitting this case, were the only two material ones. No others require any discussion.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). I am inclined to believe the evidence is too weak and inconclusive to form the basis of this conviction. No witness ever placed appellant in possession of the money in question.' The owner himself did not know when or where he lost it, and the only theory upon which appellant could possibly be convicted was that the owner of the money lost it and appellant subsequently found it. The owner did not know where he lost it. He recollected having it in his pocket, and, after leaving tire place where he last remembered having the money, he missed it. Appellant had money, and for this he gave a reasonable account, and it was not identified as the money belonging to the alleged owner. The circumstances are too weak, too inconclusive, to form the basis of conviction, in my judgment, and it does not exclude every reasonable hypothesis except the guilt of the accused. The witness Mrs. Alsup testified for the appellant. The opinion states:

“If the jury had believed her testimony, it would have tended to show that in December, 1913, and for some time prior thereto, appellant had had her to keep for him in her trunk a considerable sum of money. She did not know the exact amount, nor purport to know the exact amount; that she did not count it. She said that appellant and her husband counted the money which she kept for appellant, and that her husband knew how much there was; that she only knew from, hearsay.”

It might be stated, in a general way, that appellant accounted for the money he deposited in the bank; among other things, he sold a pair of mules for a considerable amount of money, but I. do not purpose here to rehash this testimony. On cross-examination Mrs. Alsup was asked where her husband was. She replied that he was in Oklahoma. The state asked her where, and what he was doing in Oklahoma. To this appellant urged various objections. The court overruled the objections, and she answered that her husband was in jail in Oklahoma. The opinion of the majority in this connection says:

“It will thus be seen that appellant’s brother-in-law, Mr. Alsup, was a most material witness for him. He was not present and did not testify. The state had a right to probe this matter to ascertain where this witness was and why he was not present and did not testify. The fact that he was thus related to appellant and was such a material witness that, if Mrs. Alsup’s testimony was true, appellant would have had him there to testify, and, if not, the state had the right to know where he was, so that it could get him there and have him testify in dispute of Mrs. Alsup’s testimony.”

The absence of a material witness for the defendant is never chargeable to him, unless the absence of the witness is, in some way, attributable to acts or conduct of the accused. In this ease the testimony shows beyond any question that appellant was not the cause of the absence of the witness; that he was taken under process of law and placed in jail, supposedly for some violation of the law. We understand that men are not usually placed in jail in our country except for violations of the law. Appellant was not responsible for this, nor should he be charged up with it. It introduced an extraneous matter foreign to the case, and proved before the jury that the absent witness was charged with a violation of the law in another state, and thus attacked his character and his reputation in advance of his being used as a witness, and his absence as a witness was used to prejudice the case with the jury, he being the brother-in-law of the defendant. This was certainly calculated to impress the jury prejudicially to appellant’s rights. How this character of testimony could possibly have been admitted in this case passes my comprehension; nor do the cases cited by the majority opinion sustain such proposition. Some of them do not even bear upon the question. The statement in the majority opinion, to wit:

“Tlie state had the right to know where he was so that it could get him there and have him testify in dispute of Mrs. Alsup’s testimony”

—is, to say the least, rather anomalous. It would hardly be considered a correct statement of law that the state, on the trial of a case, could prove where the absent witness was that it might have him to testify in the case when the facts showed he was in another state and could not possibly be had. If the state wanted to know where he was to use him as a witness, the trial of the matter before the jury was not the place to seek that information. If that is a valid ground, then the state would be permitted at all times and under all circumstances to introduce such damaging facts before the jury upon the plea that they were trying to locate the witness to use on that trial, when it was known, or could have been known, he was in a distant state incarcerated in jail charged with crime. Such “stage play” operated to prejudice the rights of the defendant before the jury. If this is the correct rule for the state, it would be equally correct for the defendant. They say it is a poor rule that won’t work both ways. Hereafter, if an absent state witness should be located in jail under a charge of felony, the defendant would be authorized to prove that fact before the jury as a means of locating the witness, so that he might have him before the jury, when it was known at the time, or could have been so known, that he was beyond the jurisdiction of the court, or was at such distance from it he could not possibly be obtained. Under such circumstances if the trial is to be stopped and the absent witness hunted up, a continuance should be granted in order that he might get the witness, or the testimony, and if in another state the defendant would have the right to a continuance in order to get his deposition. The statement of the proposition by the majority is a sufficient answer within itself without discussing it.

I cannot agree to this affirmance.

Additional Opinion.

PRENDERGAST, P. J.

We add this to our original opinion. No motion for rehearing was made herein. No dissenting opinion was filed at the time the original opinion was handed down. The court stenographer has shown us a dissenting opinion which is now to be filed — some time after the court has adjourned for the term.

.1. In the original opinion we gave the substance of the material incriminating evidence. Therefrom appellant and his father were shown to have been the only persons who could have found and stolen Mr. Cutts’ money. 1-Iis father swore positively he did not find and steal it. Hence the conclusion is inevitable that appellant, and no other, did. Besides, soon after the theft, appellant alone is shown to have been in possession of money which suited the description, of Mr. Cutts’ money, at such place and under such circumstances as unquestionably showed the money he then had, and part of which he then deposited in the Klondike Bank, was the money stolen from Cutts and not any other money. Appellant swore not at all, but when he was depositing $600 of that money, and kept part of it and replaced that part in his pocket, he then told Mr. Clower and Mr. Lilly upon their inquiry — so swore Mr. Clower:

“Myself or Mr. Lilly asked him [defendant] where he got the money, and he said he sold out in Oklahoma; that he sold a pair of mules for $400' of the money.” Statement of Facts, pp. 9, 10.

After hearing said witness so testify on his examining trial, the next time appellant saw him, Mr. Clower swore:

“On the defendant’s last visit there we were talking about Oklahoma, about the mule proposition, and he said to me this way, he says: ‘You must be mistaken, and have me mixed up with somebody else about saying I sold 5. span of mules in Okláhoma. I have never owned any mules.’ ” Statement of Facts, p. 14.

Again, a fair and impartial jury, after hearing all the witnesses and seeing their manner of testifying, etc., upon their solemn oaths found that from all the evidence—

“it was of such a conclusive nature, leading on the whole, to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that appellant, and no other person, committed the offense charged, and excluded, to a moral certainty, every other reasonable hypothesis except his guilt.”

A learned and long-experienced trial judge, also upon his official oath, so found. We have no particle of doubt that the evidence is amply sufficient, both as a matter of law and of fact, to sustain the jury and trial judge.

2. Appellant did not urge “various objections” to the testimony of his sister, Mrs. Alsup, when she swore “that her husband, A. L. Alsup, was, at the time of the trial, in Oklahoma in jail.” I-Tis sole objection was, as stated in his bill of exception No. 1, which alone presents the question (Record, p. 31, where his bill is copied):

“ * * * To which question counsel for defendant then and there objected upon the ground that'the same was immaterial, irrelevant and prejudicial to the rights of the defendant.”

The Supreme Court of the United States in Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021, says:

“The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable. 1 Starkie, Ev. 54; People v. Hovey, 92 N. Y. 554, 559; Mercer v. State, 17 Tex. App. 452, 467; Gordon v. People, 33 N. Y. 508.”

2 Standard Ency. of Law & Proc., 773, a most valuable recent work, so far as completed, says:

“On the trial of a criminal case, the failure to produce available witnesses, the absence of any evidence willfully omitted by the state or the accused, or that the evidence suggests has been willfully omitted, forms a predicate for any legitimate deduction for or against the defendant, where the materiality and competency of such evidence appears * * * ”

■ — citing many authorities sustaining this rule. Among them are cases from the United States Supreme Court, and the states of Alabama, Georgia, Iowa, Kansas, Iventuoky, Massachusetts, Michigan, Minnesota, Mis>-souri, North Carolina, Oregon, Texas, and Wisconsin.

Evidently Jones’ defense in Jones v. State, 7 Tex. App. 103, was that he had bought the horse which he was charged with stealing. He introduced a witness who swore that he and one Scott and one Swain were present and also witnessed the horse trade. The court (page 105 of 7 Tex. App.) said:

“The state’s counsel asked the witness, on cross-examination, ‘Where were said Scott and Swain when you last heard of them?’ The question was objected to, and the objection overruled, and the witness was permitted to answer the question. We are of opinion that the court did not transcend the latitude allowed in the cross-examination of a witness. Greenl. on Ev., § 445 et seq.”

Jones was convicted, and his punishment assessed at 10 years in the penitentiary. The case was affirmed.

Thompson was convicted for the rape of Mrs. Janssen, and assessed the death penalty. He appealed. His ease is reported in Thompson v: State, 11 Tex. App. 51, and affirmed. One of his bills of exceptions was as follows:

“The injured party, Mrs. Janssen, was allowed, over objection of defendant, to tellsthe jury that the old man, her father-in-law, was knocked down by defendant — remained on the ground bleeding and helpless — and that after the rape had been committed) called to her for assistance, and that she got him into the house; that he is now dead. Defendant, by counsel appointed by the court, objected to this for the reason that the prisoner was on trial for the rape of Mrs. Janssen, and not for the murder or assault of the old man, her said father-in-law, and that the statement was irrelevant and improper, and calculated to greatly influence the minds of the jury against defendant, to his great injury,” etc.

After holding all the first part of her testimony quoted admissible, as to tbe 'last sentence, this court through Presiding Judge White said:

“So far as the additional statement by the witness of the fact that her father-in-law was dead is concerned, it was admissible, as it fully accounted for the nonproduction of this old man, who, from the other evidence adduced, would have been bejmnd doubt a most important witness to corroborate, in a great measure, the evidence of the prosecutrix. We see no error in the admission of this testimony.”

In Logan v. State, 53 S. W. 694, Logan was convicted of murder, and his punishment assessed at 20' years in the penitentiary. The case was affirmed. In that case this court, through Judge Davidson, said:

“Appellant offered in evidence four subpoenas issued at the instance of the state for the witnesses Ragsdale, Jones, and Shanks. It is stated in the bill of exceptions that these were eyewitnesses to the transaction, and the state had refused to put them on the stand at the request of appellant. The object of introducing this process was to show ‘that said witnesses had attended court, been sworn, and placed under the rule as witnesses for the state, and were not there at the instance of the defendant,’ etc. We believe the appellant had the right to introduce the subpccnas, or prove by any legitimate testimony that these three witnesses had been subpeenaed by the state, and that the state had refused to place them on the witness stand.”

In Jackson v. State, 56 Tex. Cr. R. 29, 117 S. W. 990, Jackson was convicted of murder, and his punishment assessed at life imprisonment. This court affirmed his case. He objected to the district attorney’s argument wherein he discussed the fact that appellant did not put his father on the stand and have him testify. This court, through Judge Ramsey, said:

“The argument of the district attorney was well within his rights. The failure of a defendant to place upon the witness stand one so .closely related to him as his father, who is shown to be present, and who must, in the nature of things, have been advised of the circumstances of the crime charged, is a proper subject of comment and discussion. In ordinary experience the inference is fair that the testimony of the person so related would have been unfavorable. Even under our strict construction in respect to the testimony of the wife it has been held that the failure of the defendant to use her as a witness, where the circumstances show' she would have known the facts in the case, is a proper subject of comment.”

See, also, Mercer y. State, cited by the Supreme Court of the United States, supra.

“The rule,' without question, is that either side can introduce any pertinent testimony tending' to prove any pertinent issue in. the case, or which may do away with, or lessen, the adverse effect of any proper deduction _ that may be made from evidence that is introduced against him.’’ Sweeney v. State, 146 S. W. 888.

These five cases were cited by us in the original opinion.

Judge White, in section 1070 of his An. C. C. P., p. 676, says:

“Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — -a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable.”

As expressed by 11 Ency. of Ev., pp. 193, 194:

“And conversely, evidence, the probative effect of which is to show that the adverse party’s contention is probably unsound because not maintained in good faith, is held to be relevant. Thus evidence of the failure of the adverse party to call a witness who has knowledge of important facts * * * is relevant.”

Every other text-book writer is to the same effect, as well as every judge who has Ijad occasion to pass on the question. To collate these authorities would be interminable.

There can be no doubt but that each and all of these eases are precisely in point, and sustain our holding, as well as all text-books do, and establish beyond controversy that said testimony was admissible, notwithstanding the dissenting opinion says:

“How this character of testimony could possibly -have been admitted in this case passes my comprehension; nor do the cases cited by the majority opinion sustain such proposition.”
      <g=?Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    GILES v. STATE.
    (No. 3590.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    On Motion for Rehearing, June 25, 1915.)
    1. Indictment and Information <@^196 — Duplicity — Waivee by Eailuee to Move to Quasii.
    The contention that one count of the indictment undertook to charge two distinct offenses was waived by failure to move to quash before verdict.
    [Ed. Note. — Eor other cases, see Indictment and Information, Gent. Dig. §§ 628-635; Dec. Dig. <S&wkey;196.]
    On Motion for Rehearing.
    2. Obiminal Law &wkey;1097 — Appeal—Statement oe Facts.
    Where defendant was convicted of robbery, «. capital offense, and on appeal was entitled to a copy of the notes of the court stenographer, so that his counsel might make out a statement of facts, and the stenographer furnished a complete statement of facts in narrative form, which his counsel refused to file because he claimed that it was not correct in some particulars, there was no deprivation of a statement of facts, so as to require a reversal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2862, 2884, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey;1097.j
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    . Henry Giles was convicted of robbery, and be appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and prosecutes an appeal on the sole ground that the court erred in overruling his motion to quash the indictment; he contending that in one count thereof it undertook to charge two separate and distinct offenses. This contention is not well taken. Green v. State, 147 S. W. 593.

The judgment is affirmed.

On Motion for Rehearing.

Appellant asks this court to grant a new hearing and reverse and remand this cause, because he has been deprived of a statement of facts. As appellant was charged with a capital offense, and counsel was appointed to defend him, if the court had not required the court stenographer to furnish him with a copy of the stenographic notes, this contention would be well taken. But in this instance the stenographer made out a full and complete statement of facts in narrative form, and appellant’s counsel refused to file same, because he contends it is not correct in some particulars. The law' requires the court stenographer only to furnish a copy of his notes that appellant’s counsel may make out a statement of facts. As the stenographer went further, and certainly furnished appellant with all the information required by law to be furnished, and he could, from the data furnished, make out a statement of facts, the same as if he had only been furnished with the notes, this presents no ground for reversal.

The motion is overruled.


author: HARPER J.

text:
    MYERS v. STATE.
    (No. 3601.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied June 25, 1915.)
    1. Ceiminal Law &wkey;M24^Ci-iANGE oe Tenue — “Combination oe Influential Persons.”
    In a prosecution for murder, evidence that the county officers had promptly arrested defendant, that the grand jury had reconvened, and that the cause was set for hearing five days after service of a copy of the indictment, did not show a “combination of influential persons,” within the meaning of the statute, entitling a defendant to a change of venue on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. <&wkey;>124.]
    2. Criminal Law <&wkey;126 — Change of Venue —Prejudice.
    Under Code Cr. Proc. art. 692, § 13, providing that although a juror may have received an impression or formed an opinion from reading newspaper accounts of the homicide, communications, reports, or mere rumor, yet if he, on oath, states that such impression or opinion will not influence bis action or disable Mm from rendering a fair and impartial verdict, he shall not be disqualified as a juror, a defendant, seeking- a change of venue on such ground, must not only show that such publications, etc., were made, but that, by reason thereof, there was created in the public mind so great a prejudice as would prevent a fair and impartial trial in the county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 213; Dec. Dig. &wkey;>126.J
    3. Ceiminal Law <í&wkey;126 — Discretion or Trial Court — Change or Venue — Prejudice — Evibenoe.
    In a prose.cution for murder, where defendant applied for a change of venue on the statutory ground of such prejudice against him in the county that he could not obtain a fair trial, and showed the publication of the remarks and conduct of the same trial judge when the jury acquitted another charged with killing the predecessor of the railroad terminal .superintendent, whom defendant had killed, but did not ask the publishers as to the state of public feeling against him, and called no witnesses residing outside of the city of Ft. Worth as to the state of feeling existing among the 10,000 qualified jurors in the county outside of the city, there was no abuse of the trial court’s discretion in denying the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 243; Dec. Dig. <&wkey;>126.]
    4. Jury &wkey;>108 — Competency — Personal Convictions — Death Penalty.
    In a prosecution for murder, a juror who stated that if a cold-blooded murder was shown, authorizing the infliction of the death penalty, he would not agree thereto, and a juror who stated that he had conscientious scruples against the infliction of the death penalty, and that he did not believe his conscience would let him give that penalty in any case, were properly excused.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 489-491, 496; Dec. Dig. <&wkey;>108.]
    5. Jury &wkey;>99 — Competency—Discussion oe Crime.
    A juror who had heard people talking about the homicide since being summoned on the ve-nire, and on several occasions while attending court, was properly excused.
    [Ed. Note. — For other cases see Jury, Cent. Dig. §§ 438-443, 445-448; Dec. Dig. &wkey;99.]
    6. Jury &wkey;>103 — Competency—Fixed Opinion.
    A juror, who testified that, from what he had heard and read about the homicide, he had a fixed opinion which it would take pretty strong evidence to remove, was properly excused on challenge.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dec. Dig. <®^ol03.]
    7. Jury <&wkey;43 — Competency —Understanding oe Language.
    The fact that a juror was a naturalized German-American citizen, who might not understand the meaning of some words of the English language, although he appeared to understand the questions asked on his examination, did not disqualify him from jury service.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 248; Dec. Dig. &wkey;s43.]
    8. Jury &wkey;>40 — Competency — Defective Hearing.
    A juror, whose hearing in one ear was defective, but who heard the questions asked him on examination without apparent difficulty, was properly accepted on the jury, where the court stated that he would place him so that he could hear everything.
    [Ed. Note. — For other cases, see Jury, Cent Dig. § 245; Dec. Dig. <5&wkey;40.]
    9. Jury <®^103 — Competency—Formed Opinions.
    A juror who had read papers containing a report of the homicide, but who stated that he had no opinion as to the defendant’s guilt or innocence, and another juror who had read nothing of the homicide, and knew nothing about it, except from some slight discussion, and had no formed opinion, and who would consider any bias shown by a witness for defendant in weighing his testimony, were competent.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497'; Dec. Dig. &wkey;103.]
    10. Criminal Law <&wkey;1166% — Appeai^Com-PETENCY OE JURORS — REVERSAL.
    Error in rulings on challenges to jurors does not necessitate a reversal of the conviction, unless an objectionable juror was forced upon the defendant and sat in the case; but the inquiry in the appellate court is whether the court’s action defeated the constitutional right to a fair and impartial jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. &wkey;> 1166%.]
    11. Jury &wkey;>103 — Competency—Opinion.
    A juror who knew nothing of the homicide, except what he had read in one newspaper, and who had never heard any remarks about the case, or expressed any opinion about it, and whose impression would not influence him, was competent.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 444, 456, 460, 461-479, 497; Dec. Dig. &wkey;103.]
    12. Criminal Law <&wkey;>595 — Continuance — Absence oe Witnesses — Evidence.
    In a prosecution for murder, wherein defendant asked a continuance to secure the attendance of his wife, stepson, his two brothers-in-law, his brother, and other nonresident witnesses to prove that he drank to excess in the' near past, was subject to spells of despondency, was of a melancholy and brooding disposition,, and at such times did not comprehend the full measure of his acts, and was a paranoiac, though not insane, and wherein the testimony of witnesses, who had known defendant at his. work for several years preceding the homicide, was to the effect that he was sane, and he had not been closely associated with the witnesses he wished for six years, the continuance was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. &wkey;595.]
    13. Homicide <&wkey;179 — Defenses—Insanity-Evidence.
    In such case, evidence of defendant’s condition six years or more before the homicide would be admissible on the issue of Ms condition at the homicide, if any facts or circumstances in evidence showed his mental condition to be other than that of a sane man at the homicide.
    [Ed. Note. — For other cases, see Homicide,. Cent. Dig. § 380; Dec. Dig. &wkey;3l79.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    O. A. Myers was convicted of murder, and hie appeals.
    Affirmed.

      Walter A. Nelson and A. J. Power, both of Ft. Worth, for appellant. Marshall Spoonts, Co. Atty., of Ft. Worth, and O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER J.

When tried, appellant was adjudged guilty of murder, and his punishment assessed at death. From this judgment, he prosecutes an appeal to this court.

The first question presented is the court erred in overruling appellant’s application for a change of venue. Appellant based his application on both statutory grounds. The state filed a contest of the application, when the court heard the evidence adduced thereon.

It may be said that there was no evidence tending to show that there was a dangerous combination against appellant, instigated by influential persons. There is nothing to suggest that anybody had combined, further than to show that the officers of the county had promptly arrested appellant, grand jury reconvened, and the cause set for hearing five days after the service of copy of indictment on him. That these officials acted promptly in what they considered the performance of their duty is not a combination of influential persons, within the meaning of the statute.

On the other statutory ground, “that there is so great a prejudice against appellant in Tarrant county he cannot obtain a fair and impartial trial,” appellant did introduce some evidence tending to support that allegation.

He first called J. Ralph Griffin, circulation manager of the Ft. Worth Record, and Harold Huff, circulation manager of the Star-Telegram. These gentlemen testified as to the circulation of ¿ach of these papers in Ft. Worth and Tarrant county, and by them was proven up the articles published in these papers on January 20, 21, 22, and 23, 1015, and on October 30, 1914; the latter publication relating to the remarks and conduct of Judge Swayne, when the jury acquitted M. M. Hayes, charged with killing R, E. Boswell. It was contended that these remarks of Judge Swayne would have some influence by reason of the fact that Mr. Montague, whom appellant was charged with killing, had succeeded Mr. Boswell as superintendent of the terminals of the Texas & Pacific Railway Company, and that the evidence for the state in the Hayes Case tended to show that he had killed Boswell because he had discharged him, and that the evidence for the state in this case would also tend to show that appellant killed Montague because he had discharged him. Neither Mr. Griffin nor Mr. Huff were asked any questions as regards the state of feeling against appellant in Tarrant county, nor was their opinion elicited as to whether they thought appellant could receive a fair and impartial trial; they being introduced merely to prove u)p the publication of the articles included in the Record and Star-Telegram.

Wm. A. Bowen, publisher of the Arlington Journal, was introduced to prove up the article published in his paper. No questions were propounded to him tending to prove his opinion as to whether or not there was any prejudice' against appellant in Tarrant county.

Ray H. McKinley, publisher of the Daily Dive Stock Reporter, was introduced to prove up an article in his publications of date January 20th and 24th. He was asked no questions relative to the state of' the public mind.

'J. Lewis, publisher of the Keller Journal, testified as to the article published in his paper, and the circulation of his paper. He also testified that there had been considerable discussion relative to this killing in Keller, and the expressions of opinion were all unfavorable to appellant. He is the only one of the newspaper men interrogated in regard to that matter, and he was not asked to give his opinion as to whether or not there was so great a prejudice against appellant in Tar-rant county as would prevent him being given a fair and impartial trial.

We have read all the articles included in the transcript, and they are in the main recitations of the facts attendant upon the homicide, although in some instances expressions of opinion are given. Especially is this true as to the remarks of Judge Swayne at the time of the acquittal of Hayes, and the remarks of Judge Brown in reconvening the grand jury to investigate this homicide. We are aware that at one time in the judicial history of this state it was held that the reading of such articles, and the fact that some impression was made on the mind of the person reading the articles, was held to disqualify a person as a juror. By reason that such had been declared to be the law, our Legislature, in section 13 of article 692, Code Or. Proc., enacted that although a juror may have received an impression, or formed an opinion, from reading newspaper accounts of the homicide, communications, statements, or reports, or mere rumor or hearsay, if he on oath shall state that such impression or opinion so formed is so slight that it will not influence his action, and that he will be able, notwithstanding such impression or opinion, to render a fair and impartial verdict, the reading of such articles and the hearing of such reports or statements will not disqualify him as a juror. Since the adoption of that article of the Code, a person seeking a change of venue must not only show that such publications were made, but must go further and show by competent evidence that, by reason of such publications, statements, or reports, there has been created in the public mind so great a prejudice as will prevent him receiving a fair and impartial trial in the county. Now, in addition to proving up these publications, appellant called several witnesses.

Stanley Boykin, an attorney residing in the city of Ft. Worth, after reciting the inei-dents leading Mm to form Ms opinion, testified that he was of the opinion there was so great a prejudice in Tarrant county against appellant that he could not receive a fair and impartial trial. On cross-examination he stated he had not been outside of the city of Ft. Worth since the homicide, and his opiMon had been formed from talking with a number of citizens in Ft. Worth; that he had talked to no one residing outside the limits of the city.

Dr. J. N. McICnight testified that there were something over 20,000 qualified jurors in the county, and that, if they had all read the papers, it would be possible, but in Ms opiMon improbable, in the ordinary way to get a jury who had not formed an opinion. He resided in Ft. Worth, and most of the people with whom he had talked about the murder had expressed an opinion that appellant ought to receive a death sentence.

Mr. O. R„ Hinchen testified he was a lawyer residing in Ft. Worth, and, after giving the reason for Ms opinion, stated it was Ms opinion that appellant could not get a fair and impartial trial in Tarrant county at this time. He stated he had not heard a great many express an opinion, and in giving the opiMon he did he was presuming that the papers had been read by the qualified jurors in the county; that he had talked to no one from Arlington, Grapevine, Handley, Everman, Keller, Mansfield, or any other place in Tarrant county outside of the city of Ft. Worth.

B. H. Gibson testified he was a lawyer; that he had lived in Ft. Worth 15 years. He stated the reason why he had formed the opinion he held, and said:

“I do not think it possible at this time to secure a fair and impartial jury to try the case in Tarrant county.”

On cross-examination he admitted he was a member of the Socialist organization in Ft. Worth, and that the Socialist organization, at a meeting where there were between 30 and 75 present, had passed a resolution requesting Mm and Mr. Edgar E. Johnson to tender their services to appellant. He further stated that the Socialists are opposed to capital punishment, and do not believe in the theory of capital punishment; that a discussion relative to this case was held at a meeting of the Socialist organization at the time the resolution was passed. And here we might say that, after this testimony was adduced, there was no error in the court permitting counsel to ask the various jurors if they were members of that Socialist organization.

On the question of whether or not a mob had been formed to do appellant injury, appellant called J. L. Reynolds, who testified he was jailer, and that on the night of the homicide, January 20th, he was on duty; that he heard certain rumors and telephoned to the sheriff, arid they thought it best to carry appellant to Dallas, and he was carried there that night, but was brought back in a day or two, and had been in the Tarrant county jail since. In regard to people coming to the jail that night after" appellant left, he said:

“I was on duty when a committee of five came up there to see if he was in the jail, but there was no mob. . I do not remember the names of the committee. One was Mr. Bomen, I think, a fellow down at the Texas & Pacific. They said they wanted to talk the matter over with him, but I did not talk much with them. I carried them over the jail after Mr. Myers had left. I suppose they wanted to see him. I did not feel any danger, just turned them in. I don’t know whether there was a mob out in front. Just these five men came in, and they did not make any statements tb me. I did not hear any conversation on the outside of the jail. If there was a mob out in front, I did not see them.”

These are the witnesses called by appellant, whose testimony tended to show that a prejudice existed in Tarrant county against appellant. The state called but ifew witnesses in rebuttal.

Sheriff Mann testified:

“I should judge there are 25,000 qualified jurors in Tarrant county. I think this defendant can 'secure a fair trial in this county. I think about 40 per cent, of the jurors live in the country and 60 per cent, in town.”

J. D. Reynolds testified he had lived in Tarrant county 17 years, and was well acquainted with the citizens in the county, and he was of the opiMon that appellant could receive a fair and impartial trial.

R. M. Davis testified he was police commissioner of Ft. Worth; that he was over the city a great deal, and from the discussion he heard he was of the opinion appellant could get a fair and impartial trial.

J. W. Taylor testified he was in the real estate business in the city of Ft. Worth, and was of the opinion that appellant could get a fair and impartial trial in Tarrant county. I-Ie knew of no prejudice against Mm, and had heard but little discussion of the question.

Brown Harwood testified he was in the real estate business in Ft. Worth; that he had heard this homicide discussed, but he had hoard nothing that would lead Mm to believe a prejudice existed against appellant, and he was of the opinion that, appellant could get a fair and impartial trial in Tar-rant county.

G. W. Fincher, a contractor and builder, residing in the city of Ft. Worth, testified that he was about town a great deal, and he did not think there was any strong feeling against appellant; that he himself had formed no opiMon on the merits of the case, and was of the opinion that appellant could get a fair trial in Tarrant county; that he had heard some expressions both in favor and against appellant, but very few of either character.

O. F. Allen testified that he was of the opinion that appellant could get a fair trial in Tarrant county; that, if the names of 200 ■men were drawn from the jury wheel, a jury could be secured of fair and impartial men who had no opinion in the case.

George W. Bell testified lie was formerly tax assessor of Tarrant county; that he was well acquainted with the citizenship of Tar-rant county, and in his opinion there were at least 3,000 qualified jurors in the county, outside of the city of Ft. Worth, who had nerer heard of the case, or that there was such a case. He thought appellant could receive a fair and impartial trial in the county.

As appellant had introduced a newspaper excerpt published in the Arlington paper, the state called W. B. Collins, of Arlington, who testified that there was not so much discussion of this homicide as in other instances, and he was of the opinion that appellant could get a fair trial in Tarrant county.

The state had had summoned some 12 or more other witnesses and tendered them to appellant, but said it would not call them, unless desired by appellant. Appellant’s counsel stated he would not call them, unless given an opportunity to consult them. Time to do so was then tendered him, but neither side called the witnesses.

It is thus seen that no witnesses were called to testify residing outside of the city of Ft. Worth as to any state of feeling or to any prejudice existing against appellant in the territory outside of the city of Ft. Worth. It was further shown there were 10,000 qualified jurors in Tarrant county residing outside of the city of Ft. Worth, and no one testified for appellant that any portion of those 10,000 jurors would not be qualified. On the other hand, the state introduced evidence that there was no such state of feeling as would render such jurors incompetent, and, outside of Dallas county, no adjoining county would have hardly an excess of 10,000 qualified jurors. As to the condition in the city of Ft. Worth, some half dozen worthy citizens are of the opinion that prejudice existed among the citizenship of that city, while an equal number of credible citizens entertained the contrary view. This is a question addressed to the sound discretion of the trial court, and no such showing is made by the testimony offered as would authorize us to hold that the trial court abused his discretion in the premises. There are some 20 or 30 other towns and post offices in Tarrant county, outside of the city of Ft. Worth, and no one is called to show that there had been such discussion of this case, or familiarity with the facts, as would render the citizenship unfit to serve as jurors in the case. In considering this record, we necessarily read, not only the evidence included in the bill, but also each and every one of the bills reserved to the action of the court in passing on challenges to the jurors while counsel were selecting the jury; apparently the full examination of the various jurors being inserted in the record.

The record shows that, while John Fisher was being examined, he was asked, “If a cold-blooded murder should be shown by the evidence to have been perpetrated, and the crime, under the evidence, justified and authorized the infliction of the death penalty, and he, under the charge of the-court, was given the option of assessing the death penalty or assessing confinement in. the penitentiary, would he agree to the death penalty?” to which question he answered, “No.” The court excused the juror, to which action appellant reserved an exception. We do not think there was any error-in the ruling of the court, because the examination of the juror shows that he would be-unwilling to inflict the death penalty under-any circumstances.

Juror Bryant, in answer to the question if he had any conscientious scruples against the-infliction of death as a punishment for crime,, answered, “Some; yes, sir.” He was further examined, and finally stated, “I do not believe my conscience would let me give the-death penalty.” He then stated there might be cases in which he would agree to the-death penalty, but, if left to him, there were no cases in which he would inflict the death penalty, but would give life imprisonment. Taking this juror’s examination as a whole, we do not think the court erred in excusing-the juror.

Another juror, J. A. J. Davis, was excused by the court because the evidence showed that he had heard people talking about the case since being summoned on the venire and while in attendance on court on several occasions. There was no error in the court so doing.

Frank Shepherd testified from what he-heard said, and what he had read about the case:

“I have a fixed opinion about this case, and as to whether the defendant should be punished. That it would take pretty strong evidence to remove such opinion.”

There was no error in sustaining a challenge to this juror. These were the exceptions and instances where the court excused the jurors without appellant being called on to act on them, and none of them present error.

In several bills appellant complains that the court erred in refusing to sustain challenges to the following named jurors: R. Metzner, H. K. Whitworth, T. B. Mason, H. R. Pool, D. F. Eggleston, and J. W. Skaines. The juror Metzner answered he had no opinion as to the guilt or innocence of the appellant, but said he was a naturalized German-American citizen, and there were some words in the English language he might not understand the meaning of. The juror appeared to understand the questions propounded to him by the attorneys, and gave intelligent answers, and, if we were to hold as disqualified all citizens who do not understand the meaning of all words in the English language, the list of men qualified to serve on the juries in this state would be quite limited.

Appellant challenged Eggleston on the ground that he answered that his hearing was defective. He could hear well out of one ear, but in the other his hearing was defective. The juror could hear the questions propounded apparently without difficulty, and the court, in overruling the challenge on this ground, stated he would so place the juror that he could hear everything.

Appellant also objected to the juror because his answers showed that he had read vhe papers containing the report of this homicide. lie stated that from reading these reports, and from no other source, did he have any opinion as to the guilt or innocence of the defendant.

Mr. Pool answered he had read none of the reports of this homicide — had read nothing about it, and knew nothing about it. He had heard some slight discussion, but formed no opinion in the premises. The witness further answered that, if the testimony developed the fact a witness was in sympathy with defendant, he would consider that fact in passing on his testimony, and he would not give it as much weight as one who had no interest in the case. This the law says he should do — take these matters into consideration in passing on the weight to be given the testimony.

The other three jurors objected to (PI. K. Whitworth, T. B. Mason, and J. W. Skaines) all testified they had read reports of the homicide, but also testified they had no such opinion as would influence their action in passing on the guilt or innocence of appellant. None of the jurors named in the bills of exception, and above referred to, served on the jury, other than the juror J. W. Skaines.

It has been well settled in this state that, if the court should commit error in ruling on challenges to jurors, it would not necessitate a reversal of the case, unless an objectionable juror was forced on appellant and had served as a juror in the case. Grissom v. State, 8 Tex. App. 386; Wilson v. State, 32 Tex. Cr. R. 22, 22 S. W. 39, and cases cited in section 756, White’s Ann. Proc. The rale is stated to he that the inquiry in the appellate court is, not whether the court may have technically erred in passing upon the qualification of a juror, but did the action of the court, in so doing, tend to defeat the constitutional right of a fair and impartial jury? If the defendant has been tried by an impartial jury, the court may have committed errors in the mere process of impaneling the jury without subjecting its action to revision. So it might be said the sole question here is: Did the court err in refusing to sustain the challenge for cause as to the juror Skaines?

This ;iuror said he knew nothing about the casé, but what he read in the newspapers. That this would not affect him as a juror, as he could and would lay it aside and not consider what he had read, in passing on the case. On cross-examination he said: All he read was the report contained in the Star-Telegram. He had read no other paper. That he had never heard any remarks about the case, and had never expressed an opinion about the case. That, while he had no fixed opinion, he might be said to have a casual impression from what he read in the papers. That this would not influence him nor have any weight with him, but, if taken as a juror, he would go entirely according to the evidence in the case, and the charge of the court. Mr. Skaines was a qualified juror, and the court did not err in so holding.

The only bill of exceptions in the record relating to any matter other than the overruling the motion to change the venue and the qualification of jurors relates to the action of the court in overruling his application for a continuance. This must be viewed in the light of the evidence had on the trial, and the evidence heard on the hearing of the motion for a new trial. He stated he desired a continuance to secure the testimony of Mrs. Katherine Myers, his wife, who lives in Little Rock, Ark., his stepson, John Hendricks, who lives in Little Rock, Ark., his son-in-law, O. H. Cooper, and his stepdaughter, who lived in Los Angeles, Cal., his two brothers-in-law, Martin Armburst and John Armburst, both of whom live in Arkansas, one at Bierne, and the other at Little Rock, and the testimony of his brother, John Myers, who resides in Detroit, Mich. The facts he states he expects to prove by these witnesses are:

“That defendant drank to excess in the near past; that he is subject to spells of despondency, and is of a melancholy and brooding disposition, and at such times does not comprehend the full measure of his acts; that he does not contend that the proof will show that, as used in common parlance, he was insane, but that he is a paranoiac.”

Appellant testified on the trial of this case, and by his own testimony he shows that he separated from his wife 6 years or more ago ; and that he has not been intimately associated with any of these people since that time. A portion of Haem, his testimony would show, he has not seen for 15 years or more. The state introduced the testimony of some dozen or more witnesses who have known and associated with appellant for the 2 years immediately preceding this homicide.

R. A. Manners testified he had known appellant a couple of years, and worked .with him a portion of that time. He always had plenty of common sense, and never did or said anything at any time to cause him to doubt his sanity. He thought he was perfectly sane.

J. D. Grisson testifies: 1-Ie saw him almost daily for 1% years immediately preceding this homicide, and never at any time did appellant show any peculiarity of conduct or manner. That appellant always conducted himself in a normal manner.

Denny Deems, W. I-I. Lighe, O. D. I-Iuyge, J. F. Ingram, C. B. Craig, and J. E. Hendrick all testify to association with appellant for a great length, of time immediately preceding the homicide, and they all testify to his sanity. No witness testifies that, during the two years or more appellant had lived in Ft. Worth immediately preceding this homicide, lie drank to excess, or that he had any spells of melancholy or despondency, or that he was of a brooding disposition. If during the two years he had lived in Ft. Worth, or during the six years since he lived with his wife, he had drunk to excess, or showed signs of despondency or o.f a melancholy disposition, some one of those with whom he associated in Ft. Worth would know that fact. For, if his relatives should testify that this was his condition six years ago, it would not avail him, unless some witness could be found who would testify that this condition continued to exist and did exist at about the time of, or immediately preceding, this homicide, for he simply says in his application “that at such times, when those conditions existed, he did not comprehend the full measure of liis acts.” This being so, it would be necessary for him to show that such condition existed at the time of the homicide, or it could not avail him; and, as he offers no witness familiar with his condition and habits in the past six years, the testimony as to condition six years prior to the time would be wholly immaterial.

It is true that attached to his motion for a new trial is the affidavit of his wife. She says they parted nine years ago, instead of six years, as stated in appellant’s application for a continuance. She says that the reason of their separation was that she came to the conclusion he was of unsound mind, and then details acts and conduct which led her to that belief. But she places all these nine years and more prior to this homicide. This affidavit is made after the death penalty had been assessed by the Tarrant county jury. If witnesses are to be believed, prior to the time the death penalty was assessed Mrs. Myers said appellant. was not of unsound mind.

George E. Hosey testifies that since appellant has killed Montague he saw and talked with Mrs. Myers; that she told him, in the presence of B. C. Rotenberry and Mr. Montgomery, that there was nothing wrong with the mental condition of appellant; that she had married him 15 years ago, and had been separated from him & years, and she had quit him on account of his “meanness.” She said there was nothing wrong with his mind, and he was as sane as she was at the time she was talking to Mr. Hosey.

There are but a few days’ difference in the statements of Mrs: Myers to Mr. Hosey and the other gentlemen named, and the affidavit attached to the motion for a new trial. To show his condition six years and more prior to the date of the homicide would be too remote in time, unless there was some testimony tending to show his mental condition other than that of sound, sane man within some reasonably short period of time prior to the homicide. It is not what his mental condition was six or more years ago, but the inquiry is: What was Ms mental condition at the time of the homicide? The evidence of his condition six or more years ago would be admissible on the issue of what his condition was at the time of the homicide, if there were any facts or circumstances introduced in evidence tending to show his mental condition to be other than that of a sane man at the time of or immediately preceding the homicide. But in this the record is woefully lacking, and it is not suggested that such , could have been or could now be procured. Under such conditions, the testimony of his relatives named in the application would not be of so relevant a character as would authorize us to hold that the court erred in overruling his application for a continuance. All those with whom he has associated and worked in the last few years, who testify, say he is sane and manifested not the slightest indications of unsoundness of mind. He testified on this trial, and his recital of the facts, as he understood them, are logical and connected, and clearly indicated he knew what he was testifying to and testifying about. He recites events covering a great period of time, and there is nothing in his testimony to indicate that he is lacking in mental capacity; and, under such circumstances, it is not surprising that the jury found Mm sane. Nor is it surprising, in the light of his confession, that they should assess the death penalty. He said in his confession:

“I am a married man. I have only one child, a boy by name of John. My wife and son live at Little Rock. My wife and I are separated. On the 27th day of last March I was working for the Texas & Pacific in the capacity of a switchman in the yards, and a car was derailed in the house track, and on the 2d day of April following I was discharged. My 'service letter read that I was responsible for an accident. The letter was signed by A. W. Montague. I went to work for the Katy after that, and my application was sent to the Texas & Pacific for approval and turned down. This was on the 22d day of September. I then went to Kansas City and came back along in December and then went to see Mr. Montague about putting me back to work. He claimed to me that he did not turn the application down. I know that he did thoug'h, because the Texas & Pacific was the only reference I gave the Katy. I have been to see him several times since then and each time he would tell me that he could not do anything for me. I met him yesterday morning out in the yards on Main street and asked him again to put me back to work, and he told me I would never work for the Texas & Pacific as long as he was superintendent of terminals. I walked ‘ off and said, ‘All right.’ Yesterday evening I made up my mind to kill him. I got to studying over the way he was treating me. I went to the Majestic yesterday afternoon and couldn’t pay any attention to the show because I was thinking of it. I made up my mind that I would find him this morning and kill him. That is all there is to it. I left home at about seven o’clock this morning and went to the depot to hunt him. I had the gun on me then. I met him at the foot of the stairs this morning, and I said, ‘Have you made uij your, mind to put me back to work?’ and he said, ‘No.’ Montague weiit on up the stairs and I went on out on the street. I was afraid I would hit some one' else if I shot him in the depot soi I did not shoot him there. I wanted to wait for a better chance to get a shot at him. I went on down in the yards and met four or fiye fellows and spoke to them. I met him at the lower end of the passenger sheds. He was coming toward me and was looking at me when I pulled the gun. He hollered and told me, ‘Don’t.’ Then I fired and he fell. He squealed and hollered, ‘Oh, my God,’ after I shot him and after he fell. ■ I never at any other time had any trouble with him. This is the only difficulty I had with him and is the only reason why I shot him. After I shot him I then went and gave myself up to a policeman.”

R. A. Manners, J. W. Johnson, O. A.' Simmons, and others who witnessed the tragedy testify in substance to the same state of facts attendant upon the homicide.

Myers (appellant) testified on the trial to. being discharged the 2d of April, 1914, on account of an accident occurring in the Texas & Pacific yards at Ft. Worth. He says:

“After I was discharged, I was taken sick with rheumatism, and did not look for anything to do for two or three months. At that time I had about $300. After about three months I commenced to look for something to do and roomed at the Globe hotel all the time I was in Ft. Worth. I saw Mr. Montague several times after I was discharged, but never spoke to him until along in August last year. Then X met him in front of the Busy Bee restaurant and told him 1 was going to Kansas City, or Chicago, or St. Louis, or some place, and try to get a job, and told him I was going to refer to him, and asked if he would recommend me, and he said I could refer to him and it would be all right. Then I stayed around town for a while and went to Kansas City and went to work for the Chicago & Alton as switchman. I worked for them 15 days. To them I gave Mr. Montague as reference. X was taken out of service on account of my application not being approved, or so I was told by the g'eneral yardmaster. I had no trouble while there, and my work was satisfactory. I did not give anybody else as reference beside Mr. Montague. Then in about two weeks I went to work for the Chicago, Burlington & Quincy Railroad as switchman. I worked there 12 days, and was then taken out of service for the same reason as the other place. I was so told by the general yardmaster. I gave no one but Mr. Montague as reference when I went to work there. So far as X know, my work was satisfactory, as 1 was not taken out of service for that cause, and no complaint was made of it. Then I came back to Ft. Worth, and saw Mr. Montague along the latter part of October or 1st of November on Main street in front of the depot, and asked if he had turned down my reference, and he said, ‘No.’ I told him I had gone to work for the Alton and Quincy both and was discharged from both places on account of application not being approved, and I had given no reference but him. I met him four or five days after that and asked if he would let me go to-work for the Texas & Pacific, and he said he would not. I next met him on the street about December 15th, and asked him again to put me to work, and told him I was out of money and had room rent and board and had to go to work some place, and he said he would not. I next met him along about the 10th or 12th of January right in front of the roundhouse, and asked him again if he would not put me back to work, and told him my circumstances, and he said he would not. The next time I met him was the same morning X shot him. X met him in the depot coming down the stairs from his office. X asked him again to put me to work, and he told me I could not work for the Texas & Pacific as long as he was superintendent of terminals or any other road. The next time I met him I walked up to him and told him I was going, to kill him, and shot him, and he died afterwards. The day before I shot him I went to the Majestic theater and got to thinking about it, and it worried my mind so I never slept that night. My troubles worried me.”

We are of the opinion no reversible error was committed on the trial of the case, but must compliment Messrs. A. J. Power and Walter A. Nelson for the able manner in which they have conducted the defense in this case. Without fee or hope of reward, other than of a consciousness of a duty well performed, they have conducted the defense in this case in the hope of saving the life of their client even going to the expense of attending this court and filing exhaustive briefs. The facts in the case, however, were too apparent, the deed was too openly done, and the sole motive being shown that appellant became angry because deceased would not place him at work in the terminals at Ft. Worth.

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

      cgfc^For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    Ex parte HARVEY.
    (No. 3675.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.)
    Habeas Corpus <3=113 — Appeals—Jurisdiction — Release Pending Appeal.
    The Court of Criminal Appeals has no jurisdiction of an appeal from the judgment in a habeas corpus proceeding remanding the petitioner to the custody of the sheriff, where he is admitted to bail pending the appeal.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. <3= 113.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Habeas corpus proceeding by Robert Harvey. From a judgment remanding the petitioner to the custody of the sheriff, he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an attempted appeal from a habeas corpus hearing before Judge Burney, district judge, in which Judge Burney remanded the appellant to the custody of the sheriff of Uvalde county. Appellant sought his release under an arrest for extradition to the state of Michigan.

Judge Burney allowed appellant bail in the sum of $1,000, pending said appeal to this, court, and he has been at liberty on bond from the attempted appeal. It has been the uniform and repeated holding of this court, under such circumstances, that this court has no jurisdiction of the appeal. Ex parte Erwin, 7 Tex. App. 288; Ex parte Hobbs, 32 Tex. Cr. R. 319, 22 S. W. 1035, 40 Am. St. Rep. 782; Ex parte Walton, 45 Tex. Cr. R. 76, 74 S. W. 314; Ex parte Richie, 177 S. W. 85, recently decided, and many other authorities.

It is therefore the order of this court that this attempted appeal be dismissed for want of jurisdiction in this court; and it is further ordered that the clerk of this court transmit without delay to the sheriff of Uvalde county a certified copy of this judgment of dismissal for the information and guidance of that officer.

Ordered accordingly.
      <@^>For other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes


text:
    HART v. STATE.
    (No. 3651.)
    (Court of Criminal Appeals of Texas.
    June 25. 1915.)
    Intoxicating Liquors <§=>238 — Criminal Prosecutions — Questions for Jury.
    Where, on a trial for violating the prohibition law, a witness swore positively that he purchased a bottle of whisky from accused and paid him therefor, while accused denied making the sale, there was a question for the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. <@=> 238.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Tom Hart was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the prohibition law in Johnson' county, Tex., from which judgment he prosecutes this appeal; the only assignment of error being that the evidence is insufficient to support the verdict.

S. Gordon swears positively to purchasing .a bottle of whisky from appellant, and says he paid him for it. It is true appellant denies making the sale, but this was a question for the jury.

The judgment is affirmed.


text:
    HART v. STATE.
    (No. 3652.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.)
    Intoxicating Liquors <@=>236 — Criminal Prosecutions — Sufficiency of Evidence.
    On a trial in 1915 for unlawfully selling intoxicating liquors on or about January 1, 1915, the state proved that prohibition was m force in the county under an election held in 1904. A witness testified positively to the sale to him by accused of whisky in 1915, and that “I bought said whisky this year. This year is 1904.” Held, that the evidence supported a verdict of guilty, as it was clear that the witness intended 1915, and not 1904, and no one could have understood otherwise.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <§=> 236.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Tom Hart was convicted of unlawfully selling intoxicating liquors, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On March 11, 1915, the grand jury indicted appellant for unlawfully selling intoxicating liquors to Emmett Williams on or about January 1, 1915. The case was on the same day properly transferred to the county court, and he duly tried on March 17, 1915. He was convicted, and his punishment assessed at 60 days in jail and a fine of $100.

The state proved that prohibition was properly in force in said county under an election, etc., in 1904, and this was also admitted. Said Williams, after testifying positively to the sale to him by appellant of a half pint of whisky in 1915, said: “I bought said whisky this year. This year is 190Jf.” The only other witness was appellant himself, who testified: “I never sold Emmett Williams a half pint of whisky, or any amount of whisky, in my life.”-

By the charge the court required the jury to believe from the evidence beyond a reasonable doubt that appellant “did on or about the 1st day of January, 1915, in Johnson county, Tex., sell intoxicating liquor to one Emmett Williams as charged in the indictment,” etc., before they could convict him; also the presumption of innocence and reasonable doubt. In addition, he gave appellant’s special charge that, if they believed said Williams purchased the whisky testified to by him from appellant, “in the year 1904,” to acquit him. The only point in the case is based on said Williams’ testimony quoted above. It seems clear that, when the witness said “this year is 1904,” he meant and intended 1915, and no one could have understood otherwise. At any rate, under the pleadings, evidence, and charge of the court, the verdict is neither contrary to the law, nor to the evidence, which áre the only grounds of his motion for new trial.

The judgment is affirmed.


text:
    McDEVITT v. STATE.
    (No. 3638.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    Criminal Law <@=>1114 — Record—Bill of Exceptions.
    Where the record contains no bill of exceptions or statement of facts, there is nothing presented in the motion for new trial for review.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 2918-2921; Dec. Dig. <§= 1114.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.

      Ed. P. McDevitt was convicted of unlawfully taking and driving a vehicle, and he appeals.
    Affirmed.
    O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted under an information charging him with unlawfully taking and driving a vehicle belonging to P. J. Kelley, and his punishment assessed at six months’ imprisonment in the county jail.

As the record contains neither a statement of facts nor any bill of exception, there is nothing presented in the motion for a new trial to review.

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


text:
    FORD v. STATE.
    (No. 3646.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    Homicide <@=300 — Instructions — Self-Defense.
    Where the court instructed as to self-defense, .without any limitation as to provocation of difficulty, it was not error t,o refuse a request that defendant, on seeking deceased for a peaceable settlement, had a right to arm himself, if he thought deceased might make an assault on him, in view of the undisputed evidence that defendant shot and killed one of deceased’s sons, had shot another son of deceased and put out both his eyes, that the deceased had shot the defendant in the face and put out his eye, and that defendant had shot at deceased and thought that he had wounded him, and so believed untjl the defendant shot and killed deceased, and that, when defendant caught sight of deceased, he got his gun and pursued deceased until deceased turned and, as claimed by defendant, put his hand in his pocket.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=300.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Shelby Ford was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder; the jury assessing 45 years in the penitentiary as his punishment.

There is no bill of exceptions in the record. We have carefully read the evidence and from the state’s side, by several witnesses, the offense of murder is unquestionably shown to have been committed, as charged in the indictment, by appellant. We deem it unnecessary to recite the evidence.

The appellant ' requested the court to charge that he had the right to approach deceased and demand a peaceable settlement of their difference, and if he had reason to believe and did believe that deceased might make an unreasonable attack upon him, or attempt to carry out his threat to kill him, he had the right to arm himself and thus seek the appellant. The court refused this charge, stating, as his reasons for refusal, the following:

“First. Because the court in the general charge ‘does not limit defendant’s right of self-defense by any charge on provoking the difficulty, but gives him the perfect right of self-defense on every defensive theory.’ See Branch’s Cr. Law, 442; Williford Case, 38 Tex. Cr. R. 396, 42 S. W. 972. Second. Because such a charge in the shape requested by defendant should not be given when the undisputed evidence shows that the defendant had shot and killed one of deceased’s sons, had shot another son of the deceased and put out both, his eyes, that the deceased had shot the defendant in the face and put -out his eye, and that defendant had shot at deceased and thought he had wounded him, and so believed until the defendant shot and killed the deceased; and, when the undisputed evidence by both sides shows that when the defendant caught sight of deceased on the highway, he went for his gun, loaded it with buckshot, and pursued deceased until he, as claimed by defendant, turned and faced his pursuer (if he did so) or put his hand in Ms pocket while thus pursued by defendant, and defendant thereupon killed him. To give such a charge when the court had not charged on defendant’s provoking the difficulty, or producing the occasion, but, on the other hand, gave him the perfect, unlimited right of self-defense on his own theory — to have given him this charge would be inexcusable.”

The court’s action was correct, as has been repeatedly and uniformly held by this court. Williford v. State, 38 Tex. Cr. R. 392, 42 S. W. 972; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1143; Carey v. State, 167 S. W. 366.

The judgment is affirmed.


author: HARPER, C. J.

text:
    AMERICAN CONST. CO. v. KLEINIE et al.
    (No. 445.)
    (Court of Civil Appeals of Texas. El Paso.
    May 20, 1915.
    Rehearing Denied June 17, 1915.)
    1. Principal and Surety <©=82 — Liability of Surety — Amount—Building Contract.
    Where the principal contractor did not act in good-faith in procuring the completion of the work after its abandonment by the subcontractor, but expended therefor a sum more than was reasonably necessary, he cannot recover from the subcontractor’s surety the full amount expended by him, but onlj< the reasonable cost of finishing the work.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 127; Dec. Dig. <@=82. ]
    2. Principal and Surety <@=159 — Diability of Surety — Actions—Burden of Proof.
    Where a building contractor, in an action against the surety of the subcontractor, proves the abandonment of the work by the subcontractor, and the cost of its completion by him according to the terms of the contract, the burden is on the surety to prove that the contractor did not act in good faith in completing the work, and what the reasonable cost of such completion should be.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 42S-435; Dec. Dig. <@= 159.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the American Construction Company against R. Kleinie and another. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood and Walter H. Walne, all of Houston, for appellant. Lane, Wolters & Storey, Paul Kayser, and Gill, Jones & Tyler, all of Houston, for ap-pellees.
   HARPER, C. J.

This suit was instituted by the appellant against R. Kleinie, as principal, and the Fidelity & Deposit Company of Maryland, as surety, upon a bond executed by defendant surety company, to secure the faithful performance by Kleinie of a contract made by him with plaintiff for the doing of painting of the Harris county courthouse, to build which the plaintiff had the general contract with the county. Defendant Kleinie abandoned the contract and refused to complete the work, and the plaintiff provided the labor and material to complete the painting, and by this action seeks to hold Kleinie as principal and the surety company on its bond for the actual cost of so doing. Submitted to jury upon special issues and upon the verdict rendered, judgment was entered» for defendants, from which this appeal is perfected.

The contract between the construction company and Kleinie provides that:

“Should the party of the first part at any time refuse or neglect to supply sufficient skilled workmen or materials of proper quality, or fail in any respect to prosecute the work with diligence, or fail in the performance of any of the covenants on his part, the party of the second part shall have the right, after five days’ written notice to the party of the first part, or any one representing him in the execution of said painting, to provide such labor and materials, and the cost thereof shall be borne by the party of the first part.”

The following are the issues submitted and the answers given by the jury:

“Special Issue No. 1: What would it have cost to have completed said work after the 27th day of April, 1910 (when the defendant, Kleinie, abandoned same) according to the plans and specifications? Answer: $3,350.31.
“Special Issue No. 2: Was said amount reasonable and necessary in order to complete said work in accordance with the plans and specifications? Answer: Tes.
“Special Issue No. 3: What amount or sum was actually paid by plaintiff, the American Construction Company, in order to complete said work as per plans and specifications after his abandonment by defendant Kleinie on the 27th day of April, 1910? Answer: $7,000.00.
“Special Issue No. 4: Did the plaintiff, in making the contract it did with the Sehwartz-Eustis Company for the completion of the painting work embodied in defendant Kleinie’s contract and left by him unfinished at the time he abandoned the work, act in good faith? Answer : It did not.
“Special Issue No. 5: Did the plaintiff, in making the contract it did with the Sehwartz-Eustis Company for the completion of the painting work embraced in defendant Kleinie’s contract and left by him unfinished at the time he abandoned same, act as a reasonably prudent person in the exercise of good business judgment would have acted? Answer: It did not.
“Special Issue No. 6 : Could or could not the contract of R. Kleinie have been performed and his work completed by the plaintiff for the unpaid portion of the contract price by the exercise of good business judgment by plaintiff, acting in good faith and with reasonable diligence? Answer: It could not.
“Special Issue No. 7: Did the plaintiff, the American Construction Company, exercise ordinary care in the supervision of the performance by Sehwartz-Eustis Company of the contract which it made with the plaintiff for the completion of the work unfinished by defendant Kleinie at the time he abandoned the job? In reply to this question, you will answer either ‘It did,’ or ‘It did not,’ as you may find the facts to be. By the words ‘ordinary care,’ as used in this interrogatory is meant the care that a person of ordinary prudence would have exercised under the same or similar circumstances. Answer : It did not.”

The first and second assignments in effect are that the court should have entered judgment for plaintiff upon the finding of the jury that it cost $7,000 to finish the contract after breach, because,, there being no evidence that plaintiff did not exercise good faith and diligence in procuring such labor and material at the cheapest price, it followed as a matter of law that it was entitled to recover the sum expended. They are overruled, because the jury found as a fact that the plaintiff did not act in good faith, and there is evidence to support the finding.

The third and fourth are that the court erred in refusing to charge the jury that the burden was upon defendant to prove its defenses: First, that the plaintiff did not act in good faith; and, second, that the price paid Sehwartz-Eustis Company for the completion of the painting work was not reasonable. Under the provision in the contract between the construction company and Kleinie, all that plaintiff was required to do was to prove the breach; that it provided the labor and material necessary and the cost thereof. The burden then shifted to the defendants to establish their defense that the amount was not reasonable, and the court should have so charged. Porter v. Purkett, 65 Tex. 383; Baer v. Sleicher, 153 Fed. 129, 82 C. C. A. 281; Nelson v. San Antonio Traction Co., 175 S. W. 434.

The question of good faith and that the charges were unreasonable are inseparable under the provisions of this contract. The holdings of the adjudicated cases upon the point, which we have found, are based upon the peculiar facts of each case.

It seems clear that by the provision in the contract appellant was authorized to proceed to furnish the labor and material to finish the abandoned contract at such cost as it appeared to it was reasonable and just, acting, of course, in good faith, so when the plaintiff had pleaded and proved that it was lawfully entitled to finish the work defendant had contracted to do, that he nad done so, and that the cost was so much, this was all that he was required to do to authorize a recovery. If plaintiff did not act in good faith, it was a matter of defense, and the burden was upon the defendant to prove it, and if proven, then it would also devolve upon the defendant to prove what the cost of the labor and material would reasonably have' been if procured by a person acting in good faith, and that alone must be the test as to the amount of recovery by plaintiff. If it would amount to more than the contract between plaintiff and defendant called for, then plaintiff should recover; if less, then defendant should recover.

The fifth assignment is to certain statements of counsel for defendant in argument to the jury, upon the ground that there was no evidence in the record to justify the remarks. It is unnecessary to pass upon this assignment, because the matters complained of are not likely to occur upon another trial.

For the error indicated above, the cause must be reversed and remanded.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes