author: TAYLOR, J. PHILLIPS, C. J.

text:
    PENN v. BRISCOE COUNTY.
    (No. 28-2658.)
    (Commission of Appeals of Texas, Section A.
    Dec. 21, 1918.)
    Error to Court of Civil Appeals of Seventh Supreme Judicial District. Action by J. W. Penn against Briscoe County. From a judgment of the Court of Civil Appeals (162 S. W. 916), affirming a judgment for defendant, plaintiff brings error.
    Dismissed for want of jurisdiction.
    C. D. Russell, of Plainview, for plaintiff in error.
    K. Ewing Bain, of Floydada, for defendant in error.
   TAYLOR, J.

This action is in the form of trespass to try title to the S. W. ¼ of survey No. 96, block B-l, B. S. & F. certificate 1/770, in Briscoe county. The real purpose of the suit, however, is to determine the true location of the south boundary line of the plaintiff’s one-fourth of the section. 162 S. W. 916. It is a case of boundary purely, and comes under the rule stated in Cox v. Finks, 91 Tex. 318, 43 S. W. 1. The writ was sought on the ground that the Court of Civil Appeals erroneously declared the substantive law of the case. The writ was granted in April, 1914. In November following the Supreme Court decided the case of Cole v. Cobolini, 106 Tex. 472, 170 S. W. 1036, holding that the act of March 28, 1913 (Laws 33d Leg. p. 107), amending article 1521, Revised Statutes 1911, defining the jurisdiction over the Court of Civil Appeals where such court has erroneously declared “the substantive law of the case” (paragraph 6), did not repeal article 1591, Revised Statutes 1911, which made judgments of the Courts of Civil Appeals final in certain cases, including eases of boundary. The court, in concluding the opinion, stated that during the prior term, in applying the act of 1913, the court acted under the view that its effect was to confer upon the Supreme Court jurisdiction over questions of substantive law in cases made final in the Court of Civil Appeals by the terms of article 1591, and added that in a few cases writs of error had been granted in such cases, which, under the ruling announced, would be dismissed. This is doubtless one of the cases referred to. We are of opinion that the Supreme Court has no jurisdiction of the case, and recommend its dismissal.

PHILLIPS, C. J.

Case dismissed for want of jurisdiction, as recommended by the Commission. Judgment will be so entered.


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    HUGHES v. STATE.
    (No. 5231.)
    (Court of Criminal Appeals of Texas.
    Dec. 4, 1918.)
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. R. J. Hughes was convicted of aggravated assault, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant is under sentence of confinement in the county jail for 12 months for the offense of aggravated assault in a conviction on an indictment for an assault with intent to rape. The record is without bills of exception or statement of facts, and presents no question for review. The judgment, is therefore affirmed.


author: DAVIDSON, P. J.

text:
    RAY v. STATE.
    (No. 5203.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1918.
    Rehearing Denied Jan. 15, 1919.)
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge. J. T. Ray was convicted of murder, and he appeals.
    Affirmed.
    Carlos Bee, of San Antonio, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of mnrder; the jury assessing his punishment at 25 years in the penitentiary. This is a fact case, without bills of exception, either to the introduction or rejection of testimony or to the charges of the court. The evidence is fully sufficient to support the verdict of the jury. Appellant’s theory of his case was self-defense. The jury, however, disregarded his view of it and found him guilty. We deem it unnecessary to review the facts. They would be of no practical utility to the bar and bench, and therefore the facts are not collated. The judgment will be affirmed.


author: HIGHTOWER, C. J.

text:
    BARBEE et al. v. PRUETT et al.
    (No. 410.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1918.)
    Appeal from District Court, Liberty County; J. L. Maury, Judge. Suit by Ed Pruett and others against Will L. Barbee and others. Judgment for plaintiffs, ana defendants appeal.
    Affirmed.
    E. B. Pickett, Jr., of Liberty, and W. D. Gordon and Thos. J. Baten, both of Beaumont, for appellants.
    D. J. Harrison and H. E. Marshall, both of Liberty, for appellees.
   HIGHTOWER, C. J.

This is an appeal from a judgment of the district court of Liberty county in a suit brought by the. appellee against the appellants, praying the cancellation of a certain lease contract executed by appellees in favor of appellants covering certain lands owned by ap-pellee in Liberty county. The principal ground upon which the lease was sought to be canceled was that the same had been procured by fraud and deceit practiced by the appellant Will L. Barbee upon the appellee Pruett. The trial was before the court without a jury, and judgment was rendered canceling the lease as prayed, and upon request of appellants the trial court prepared and filed findings of fact and conclusions of law. Upon an inspection of the record, we find that no brief has been filed by appellants in this court, and it appearing, upon inspection of the pleadings and the findings of fact made by the trial court, that the judgment, as rendered, was such as was authorized by the pleadings and supported by the court's findings of fact, and there being no fundamental error appearing upon the face of the record, it is the opinion of this court that the judgment of the lower court should be affirmed; and it will be so ordered.


author: BROOKE, J.

text:
    KNOX v. B. K. KING & SON.
    (No. 396.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 19, 1918.)
    Appeal from Nacogdoches County Court; J. P. Perritte, Judge. Proceedings between Hiram Knox and B. K. King & Son. Prom a judgment for B. K. King & Son, Knox appeals.
    Affirmed.
    J. W. Minton, of Hemphill, for appellant.
    V. E. Middlebrook, of Nacogdoches, for appellees.
   BROOKE, J.

After a careful examination of the record in this case, together with the briefs of counsel for the respective parties, we have come to the conclusion that there is no reversible error shown, and the cause should therefore be affirmed.


text:
    WEIL v. HATTON et al.
    (No. 308.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 21, 1918.)
    Appeal from District Court, Orange County; W. R. Blaekshear, Judge. Action between Felix Weil and O. M. Hatton and others. Prom the judgment rendered, Weil appeals.
    Affirmed.
    Bisland & Bruce, of Orange, for appellant.
    Holland & Holland, of Orange, for appel-lee.
   BROOKE, J.

In this case no briefs have 'been filed by either party, and we have, after carefully examining the record, found no error requiring a reversal. The case appears to be controlled by Reyes v. Kingman Texas Implement Company, 188 S. W. 450. The judgment of the trial court is therefore affirmed.


author: SONFIEDD, P. J. PHILLÍPS, C. J.

text:
    EBERSOLE v. SAPP.
    (No. 23-2643.)
    (Commission of Appeals of Texas, Section A.
    Jan. 15, 1919.)
    1. Master and Servant <&wkey;25>8(19) — Injury to Servant — Construction of Petition.
    General allegations as to a manhole being an unsafe place to work and as to master’s failure to warn a servant as to the possibility of an explosion when an iron bucket used by him struck a hard substance, should be construed with reference to an explosion of\gas and as to the cause thereof, specifically alleged to have been the striking of the bucket against the-wall of the manhole.
    2. Negligence t&wkey;l — Knowledge—“Culpable Ignorance” — Constructive Knowledge.
    Negligence can only be predicated upon actual or constructive knowledge, and ignorance of facts exonerates from liability, unless such ignorance is culpable, which is such as results from failure to exercise ordinary care to acquire knowledge.
    3. Negligence &wkey;>l — Care Required — Constructive Knowledge.
    A knowledge which would have been acquired by the exercise of ordinary care is imputed, and the person who would have so acquired it is deemed to have had constructive knowledge.
    4. Master and Servant &wkey;>97(2) — Anticipation of Dangers — Tools and Appliances.
    To render the master’s acts in furnishing a servant with a certain instrumentality for his work negligent, it must be found that an ordinarily prudent man in the exercise of reasonable care would have anticipated some injury as the result of its use in such work.
    5. Master and Servant >&wkey;101, 102(1)— Tools and Appliances — Care Required.
    A master is not negligent in furnishing an instrumentality for use by a servant if it would have been considered by an ordinarily prudent person in the exercise of ordinary care a proper instrumentality for use in the manner and place and for the work for which it was furnished.
    6. Master and Servant <&wkey;97(l), 101, 102(2) —Liability—Negligence—Accident.
    A master is not an insurer of the servant’s safety, but is bound only to the exercise of ordinary care, and is not bound to provide against, or liable for, the results of a mere accident, and whether an act is negligent or accidental is to be determined by the standard of the conduct of an ordinarily prudent person in the exercise of reasonable care.
    7. Master and Servant &wkey;>97(2) — Negligence or Accident — Degree of Oare.
    If an injury resulting from an act could have been reasonably anticipated, or foreseen by an ordinarily prudent person in the exercise of ordinary care, the occurrence is not accidental.
    8. Master-and Servant <&wkey;278(3) — -Injury to Servant — Safe Place to Work — Negligence — Evidence.
    In action by a servant injured by an explosion of accumulated gas alleged to have resulted when the iron bucket furnished him struck a hard substance, brought on the theory of the master’s negligence in permitting the accumulation of gas, evidence held not to show the alleged negligence.
    9. Master and Servant <&wkey;278(20) — Failure, to Warn Servant — Negligence — Evidence.
    In action by servant injured by an explosion of accumulated gas alleged to have resulted when bucket struck a hard substauce, brought on theory of negligence in failing to warn servant of the danger of ignition when the bucket struck a hard substance, evidence held not to show the negligence alleged.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by M. Sapp against F. E. Ebersole and the Houston Home Telephone Company. From a judgment of the Court of Civil Appeals, Fourth District (160 S. W. 1137), affirming a verdict and judgment against defendant, Ebersole, and in favor of the Houston Home Telephone Company, he brings error.
    Reversed, and judgment rendered for defendant Ebersole.
    W. L. Cook, of Houston, for plaintiff in error.
    Green & Boyd, of Houston, for defendant in error.
   SONFIEDD, P. J.

Plaintiff, M. Sapp, sued defendant F. E. Ebersole, together with the Houston Home Telephone Company and the Houston Gas Company, to recover damages for personal injuries. The suit was dismissed as to the Houston Gas Company. A trial to a jury resulted in a verdict and judgment against defendant Ebersole, the court instructing the jury to find in favor of the Home .Telephone Company. On appeal the judgment of the district court was affirmed. 160 .S. W. 1137.

Plaintiff was in the employ of defendant Ebersole, an independent contractor engaged in working upon the property of the telephone company. While at work bailing water out of a manhole, and using for this purpose a metallic bucket furnished him by defendant, gas which had accumulated in the manhole was ignited, and in the resulting explosion plaintiff was injured.

Plaintiff alleged negligence on the part of defendant in permitting the accumulation of gas, or other inflammable matter in the manhole; in failing to warn plaintiff of the presence of same, and the danger thereof; in furnishing and providing plaintiff with an iron bucket or a bucket made of some bard substance when defendant knew, or could bave known by tbe exercise of proper diligence and care, of the danger of igniting said gas by striking said bucket against tbe cement walls of said bole, or other bard substance therein, and in failing to warn plaintiff of the danger of tbe gas becoming ignited in such manner; that tbe cause of tbe ignition of tbe gas was due to tbe striking of tbe bucket so furnished him by defendant against tbe wall of tbe manhole, which was made of cement, brick, or some other bard substance. His allegations and theory of tbe case were that tbe metal bucket, striking against the concrete, brick, or other bard substance in tbe manhole, generated a spark which ignited tbe gas, resulting in the explosion.

Defendant’s theory was that plaintiff went into the manhole with a lighted cigarette, or struck a match to light a cigarette while in the manhole, thus causing an explosion of the gas. There was evidence that plaintiff did go into the manhole with a lighted cigarette, but plaintiff made denial of this and of having lighted a match while in the manhole.

The Court of Civil Appeals finds that plaintiff had been engaged in this character of work in various manholes for several weeks; that in some of the manholes there was an accumulation of gas, in others none, this being known to both plaintiff and defendant; that neither plaintiff nor defendant had knowledge that there was danger of generating a spark in the use of the bucket in such place and manner; It was admitted on the trial that á spark would ignite combustible gas such as was present in this manhole.

There was evidence that:

“Friction caused by a zinc or iron bucket or iron substance coming in contact with concrete will produce a spark, or coming in contact with brick will do it.”

The undisputed evidence is that the sides of this manhole were built of soft porus brick, at the bottom was concrete finished off with a coating of cement; that the concrete was not a hard mixture, and the coating of cement somewhat softer than the concrete; that tests with an iron bucket in this manhole, striking same against the sides and bottom failed to produce a spark.

The general allegations as to unsafe place in which to work and failure to warn must be construed with reference to the explosion and to the cause of the explosion as specifically alleged. Thus viewed, the presence of gas and failure to warn are immaterial, except when considered with reference to the bucket so furnished and used. , Given a proper instrumentality with which to work, the manhole, notwdthstanding the accumulation of gas, would not have been an unsafe place. The danger of explosion from the accumulation of gas arose only by reason of the-use of the metallic bucket. But for the furbishing of this bucket and its use, under plaintiff’s allegations, there would have been no spark, no ignition of the gas, and no explosion. In the absence of danger there wouid be no occasion to warn the plaintiff. The vital question for determination is: Was-defendant negligent in furnishing plaintiff a metallic bucket under the circumstances and for the purpose for which same was furnished?

Negligence can only be predicated upon knowledge, actual or constructive. Ignorance of facts exonerates from liability, unless-such ignorance is culpable. Culpable ignorance is that which results from a failure to exercise ordinary care to acquire knowledge. Knowledge which could be acquired by the-exercise of ordinary care is by the law imputed to the person, and he is held to have constructive knowledge. “The foundation of liability is knowledge — or what is deemed in law the same thing, opportunity by the exercise of reasonable diligence to acquire knowledge — of the peril which subsequently results in the injury.” 20 B. C. L. 13. To render the-act of the master negligent in furnishing a servant a certain instrumentality for use in the work in which he is engaged, it must be determined that an ordinarily prudent man, in the exercise of reasonable care, would have-anticipated some injury as a result of its use in such work. 3 Labatt, Master & Servant (2d Ed.) 2748. The master cannot be held negligent in furnishing an instrumentality for use by the servant, if the instrumentality would have been considered by an ordinarily prudent person, in the exercise of ordinary care, a proper one for use in the manner and place and for the work for which it was furnished. Kailway Co. v. Alexander, 103 Tex. 504, 132 S. W. 119.

The master is not an insurer of the safety of the servant, but is bound only to the exercise of ordinary care. He is not required to provide against, and is not held liable for, the results of a mere accident. Whether an act is negligent and actionable or accidental and without legal redress is to be determined by the standard of the conduct of the ordinarily prudent person in the exercise off reasonable care. If the injury resulting from the act could have been reasonably anticipated or foreseen by an ordinarily prudent person, in the exercise of ordinary care, the occurrence is not accidental. If, however, the injury could not have been thus foreseen or anticipated, it is an accident for which there is no legal redress. 20 K. O. L. 20. Lumber Oo. v. Denham, 85 Tex. 56, 19 S. W. 1012.

As stated by Chief Justice Gaines in Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162:-

“It ought not to be deemed negligent to do or to fail to do an act, when it was not anticipated and should not have been anticipated that it would result in injury to any one. To require this is to demand of human nature a degree of care incompatible with the prosecutions of the ordinary avocations of life. It would seem that there is neither a legal nor a moral obligation to guard against that which cannot be foreseen, and under such circumstances the duty of foresight should not be arbitrarily imputed.”

Applying these well-settled principles of the law to the facts in this case, we are convinced that the act of defendant was not negligent. The occurrence was unusual and extraordinary. There is no evidence of a similar occurrence, the generation of a spark by striking a metallic bucket against the brick or concrete of a manhole in dipping up water therefrom. There was evidence that a spark could be produced from concrete or brick by contact with a zinc or iron bucket. In order to do this, as is well known, there is required a blow of some force. There is no evidence that in the work being performed by plaintiff and in the manner of its performance as disclosed by the evidence, it was necessary or probable, if possible, that the bucket would be struck against the brick or concrete with sufficient force to produce a spark. There was no evidence that such a bucket striking against the walls or bottom of a manhole, constructed of the character of brick, concrete, and cement as was this manhole, would produce a spark; all the evidence is to the contrary. Other manholes, similarly constructed, in which gas had accumulated, were worked in by plaintiff, he using a like instrumentality in the same work, and there is no evidence that this was not the usual and customary instrumentality for use in bailing water out of manholes. Conceding that on this occasion a spark was produced through the striking of the bucket against the wall or bottom of the manhole, this would not stamp as negligent the act of defendant in furnishing the bucket for such use. The question of negligence is not determined by the fact that a spark was so produced. The test is, Could such a result or any injurious result be anticipated by an ordinarily prudent person in the exercise of ordinary care, in so furnishing the bucket? Thus tested, there is in our opinion no evidence to establish negligence.

The trial court should have given the charge requested by defendant, instructing the jury to return a verdict for defendant.

We are of opinion that the judgment of the Court of Civil Appeals, affirming the judgment of the district court, should be reversed, and judgment here rendered for defendant.

PHILLÍPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Nqjnbered Digests and Indexes


author: MONTGOMERY, P. J. PHILLIPS, C. J.

text:
    FIELDER et al. v. HOUSTON OIL CO. OF TEXAS et al.
    (No. 29-2661.)
    (Commission of Appeals of Texas, Section B.
    Jan. 15, 1919.)
    1. Public Lands <®=>175(7) — Location—Conflicting- Locations — “Titled Lands.”
    Under Const. 1869, art. 10, § 3, which declares null and void all certificates for land located after October 30, 1856, upon land titled before location of certificate, and Const. 1876, art. 14, § 2, “titled lands” are those within boundaries of patents from the state, and lands not patented, although erroneously indicated as within patent boundaries by a general land office map, were not “titled lands.”
    2. Constitutional Law <®=3278(1) — Dub Pbocess — Right in Public Land.
    Const. 1869, art. 10, § 3, declaring null and void certificates for land located after October 30, 1856, upon land previously titled, cannot be construed to affect any right vested in I860 in view of Const. U. S. Amend. 14.
    3. Public Lands <§=>175(½) — Right to Locate — “Close oe the Wab.”
    The “close of the war,” as used in 6 Gammel, Laws, 669, approved December 14, 1863, suspending all laws authorizing location and sale of public lands until such time, dates from closing of actual war in Texas May, 1865, and not from presidential proclamation thereof as of August 20, 1866.
    4. Evidence <§=j11 — Judicial Notice — State Land Office in Opekation at Cebtain Time. '
    The court will take judicial notice that the land office of the state of Texas during the first seven months of the year 1866 was open for business, and that land certificates were during such period located and returned to the General Land Office from many counties and have been recognized as valid by the state.
    5. Statutes <§=>219 — Oonstkuctio-n — Construction by Land Office.
    In the construction of 6 Gammel, Laws, 669, approved December 14, 1863, suspending laws authorizing disposition of state land until close of the war, the construction by the laud office authorities in opening offices for such business is entitled to great weight.
    6. Advebse Possession <®=»98 — Sufficiency o:? Possession.
    The actual possession of a few acres of a tract of land by inclosure with other land owned by claimant is insufficient to put the owner upon notice that any claim of adverse possession is asserted beyond that actually fenced.
    Error to Court of Civil Appeals of First Supreme Judicial District.

      Suit by Mrs. Alice 0. Fielder and others against the Houston Oil Company of Texas and others. Judgment for defendant, and plaintiff appealed to the Court of Civil Appeals (165 S. W. 48), where the judgment was affirmed in part and reversed in part, and both parties bring error.
    Judgment of Court of Civil Appeals affirmed in part, and reversed in part and remanded.
    John Hammon, of Houston, and Oliver J. Todd, of Beaumont, for plaintiffs in error.
    H. O. Head, of Sherman, and W. D. Gordon and Hightower, Ofgain & Butler, all of Beaumont, for defendants in error.
    Minor & Minor, of Beaumont, for defendant in error Kirby.
   MONTGOMERY, P. J.

This suit is an action of trespass to try title, brought by Mrs. Alice C. Fielder and others as plaintiffs against the Houston Oil Company, R. H. Kirby, and R. S. Stevens, to recover title and possession of 480 acres of land in Hardin county located and surveyed by virtue of bounty warrant No. 60 issued by the Republic of Texas to John Lewis. Originally, other parties were made defendants, but all were dismissed from the suit except those named above.

The defendants Houston Oil Company and R. H. Kirby answered by a plea of not guilty and by pleas of limitation, setting up the three, five, and ten year statutes. R. S. Stevens disclaimed as to all the land except a tract of 160 acres described in his answer by metes and bounds, and as to the said 160 acres he pleaded not guilty and the three, five, and ten year statutes of limitation.- A jury was waived, and a trial by the court resulted in a judgment in favor of all the defendants.

This judgment on appeal by A. C. Fielder and others, plaintiffs, was by the Court of Civil Appeals reversed and rendered as to the Houston Oil Company and R. H. Kirby, and the judgment was affirmed in favor of Stevens as to the 160 acres of land claimed by him. 165 S. W. 48.

Mrs. A. C. Fielder and the other plaintiffs applied for a writ of error which was granted by the Supreme Court. The Houston Oil Company and R. H. Kirby also applied for a writ of error which was granted. The bounty warrant, by virtue of which the land was located, was issued to John Lewis and was a valid land warrant. It was assigned to Joel Burt on November 6, 1857, and the plaintiffs Alice C. Fielder and others are the heirs of Joel Burt. The certificate was located on the land in controversy on' July 21, 1866, and the certificate, together with the field notes of the survey, was returned to and filed in the General Land Office on August 1, 1866. In these field notes, the distance of one of the calls was omitted, and the field notes were returned to the surveyor for correction. The corrected field notes were returned to the General Land Office and filed therein on June 7, 1867.

This location was made on vacant and unappropriated public domain, but the map then in use in the Land Office showed that the land covered by the location was included in the Lemuel Watson and Maria Zimines grants, both of which were “titled” lands. The map was erroneous, and, in fact, neither of the grants above named covered or included any part of the land surveyed by virtue of the Lewis certificate.

The defendants the Houston Oil Company and R. H. Kirby claim title under a junior location on which patent was issued in the year 1901. The claim of Stevens depends 'entirely upon limitation.

Other facts that may be necessary will be stated in the opinion.

Opinion.

The first claim of the Houston Oil Company and Kirby is that the location of the Lewis certificate was void for the reason that the same was located upon “titled land,” as that term is used in the Constitution of 1869, art. 10, § 3, and that the location also falls within the inhibition of article 14, § 2, of the Constitution of 1876.

Article 10, § 3, of the Constitution of 1869, declares null and void “all certificates for land located after the 30th day of October, 1856, upon lands which were titled before such location of certificate.”

The words “titled lands” are used both in the Constitution of 1869 and the Constitution of 1876,, and these words have under the decisions of this state a well-defined legal meaning. As stated by the court in the case of Winsor v. O’Conner, 69 Tex. 576, 8 S. W. 521:

“Land is said to be ‘titled’ when a patent is issued, which, on its face, is evidence that the state has parted with its right and conferred it on the patentee.”

Under this and many other decisions of our Supreme Court, after a patent has in fact been issued by proper authority, the lands included within its boundaries are “titled lands,” although the patent may, by reason of some fact not appearing on its face, be void. The case cited above fully discusses the meaning of the constitutional provision forbidding location on titled lands, and, on the authority of that case, we hold that the Court of Civil Appeals properly decided that the land upon which the Lewis certificate was located was not titled lands at the time of its location within the meaning of the constitutional provision.

The provision of the Constitution of 1869 above referred to is a retroactive provision and purports to affect the validity of locations made prior to the adoption of the ■Constitution. If the owners of the Lewis certificate had, prior to the adoption of the ■Constitution in accordance with the laws ■then in force, made a valid location of the certificate, they acquired thereby a vested right in the land, and the constitutional provision quoted could not be givén the effect of destroying such right, as the same would be protected by the provisions of the Fourteenth Amendment to the Constitution ■of the United States, prohibiting any state from depriving any person of life, liberty, or property without due process of law.

Article 14, § 2, of the Constitution of 1876, is prospective in its application and has no reference to locations made prior to its adoption, and therefore has no application to this case.

We now come to what seems to be the principal question in the case. It is strenuously contended that the location of the Lewis certificate was made , at a time when such location was prohibited by law and was therefore void and conferred no right to the land.

This contention is based upon an act of the Legislature of the state of Texas passed and approved December 14, 1863, which provided :

“That until six months after the close of the present war all laws authorizing the location, survey, or sale of any public land or land script, except in cases herein provided for, are hereby suspended.” 6 Gammel, Laws, 669.

The exceptions mentioned in the act do ■not include bounty warrant locations like the one in controversy. The Houston Oil Company and Kirby contend that, under the provisions of this act, the location of the Lewis certificate was void for the reason that the Civil War did not close until it was declared closed by the .proclamation ■of the President of the United States, promulgated on August 20, 1866, declaring it closed on that date as to the state of Texas. The Court of Civil Appeals, in its opinion, 165 S. W. 48, has gone into/ this question at great length; and we think that the holding of said court that the Civil War, as contemplated by the act of December 14, 1863, closed at the time actual hostilities ceased and the .authority of the United States government was re-established throughout the state, is correct. In view of the fact that the Court of Civil Appeals has decided this question as we think it ought to be decided, we think it sufficient to refer to and adopt that part of the opinion of the Court of Civil Appeals dealing with the construction and effect of the act referred to.

In addition, however, to the reasons given by the Court of Civil Appeals, we think it proper to refer to the fact, of which we are authorized to take judicial notice, that the land office of the state of Texas during the first seven months of the year 1866 was open for business, and that land certificates were, during said period, located and returned with the field notes to the General Land Office from many counties in the state, and that all sucb locations were recognized by the proper authorities at that time as being valid and legal and have been recognized by the state as such at all times since. We think this practical construction by the proper authorities of the act of December 14, 1863, is entitled to great weight, and that titles which have been recognized by the state for more than 50 years should not be disturbed, unless required by the strongest reasons. We do not think such reason exists in this case. What is said above disposes of the case in so far as the Houston Oil Company and R. I-I. Kirby are concerned. The only other question arises out of the claim of Stevens to a tract of 160 acres described in his pleadings by metes and bounds. This claim is based upon the ton-year statute of limitation.

The facts, as we gather them from the record, are that in 1884 one Henry Teel acquired five acres of land on a survey adjoining the land in controversy, and at that time established his home on said five-acre tract and cleared and put in cultivation some eight or ten acres during the first year, evidently encroaching either upon the land in controversy or other adjoining land. According to his testimony, he afterwards added to his cultivated land and inclosed additional lands therewith.

His dwelling house, barn, and all outbuildings used in connection therewith were located on the 5-acre tract, which he in fact owned. About the year 1884, Henry Teel attempted to procure the 160 acres of land now claimed by him as a pre-emption and caused the same to be surveyed. He testified that he claimed this 160 acres under his pre-emption claim for three years and then abandoned this claim and thereafter claimed it by limitation. He further testified that in 1903 he sold the land claimed by him to R. S. Stevens and thereafter, until the trial of this case, occupied and held it as the tenant of Stevens. We understand from his testimony that his inclosure included, in connection with other lands owned by him, about 2 acres of the land in controversy. The record fails to show the boundaries of that part of land in controversy actually inclosed by Teel. The district court found as a fact that 15 or 20 acres of land was inclosed by Teel, but fails to find how much of this inelosure was a part of the land in controversy. The Court of Civil Appeals held, under these facts, that the possession of Teel was of such a character as entitled him to hold, by limitation, the 160 acres of land surveyed for him under his attempted pre-emption.

In Bracken v. Jones, 63 Tex, 186, it was held that, where the dwelling houses and buildings used in connection therewith were situated on a tract of land adjoining the,, land in controversy and the only possession of the land in-controversy was an encroachment by fencing a few acres thereof, such possession was not sufficient to vest title by limitation to any land except that actually inclosed. To the same effect is Holland v. Nance, 102 Tex. 177, 114 S. W. 346. In Bender v. Brooks, 103 Tex. 329, 127 S. W. page 170, Ann. Oas. 1913A, 659, Justice Brown, in a case similar to the one under-consideration, used this language:

“The evidence is sufficient to raise the issue of limitation of five years, if the character of the possession was adverse to the true owner of the land. To simplify the question, we .will consider it as if Mason had been in possession in person. In order for possession to be adverse to the true owner, it ‘must be of such a character as to indicate unmistakably an assertion of claim of exclusive ownership in the occupant.’ Mhoon v. Cain, 77 Tex. 318, 14 S. W. 243; Bracken v. Jones, 63 Tex. 186; Holland v. Nance [102 Tex. 177], 114 S. W. 346; McCarty v. Johnson, 20 Tex. Civ. App. 187, 49 S. W. 1098. In Bracken v. Jones, the possessor, .who claimed by limitation a larger tract, had fenced land owned by himself, and on which he resided, including in his field 4 acres of an adjoining tract. The possession continued sufficient time to give title under the statute, and the party in possession claimed the entire tract of which he had the 4 acres inclosed. This court held that, as to the land not under fence, there was no such adverse possession as would give notice to the true owner that the occupant intended to claim the entire survey. In the case now before us, as in the case just quoted, the house and all improvements, except a portion of the fencing, was upon another tract of land. The use of the field was incidental to the use of the house, and the possession of the field in its entirety could be referred only to the possession of the house and the other land inclosed within the field. The inclosure gave not the slightest intimation to the true owner, that the person who was residing upon the 30 acres of the adjoining tract was setting up claim to the entire survey of 663 acres. The evidence does not tend to prove a possession adverse to the owner of the Dunman survey. We therefore hold that the- evidence submitted with this certificate did not justify the court in submitting the issue of limitation to the jury.”

The principle announced in the foregoing cases, we think, is applicable to this case, and precludes any recovery by Stevens by virtue of the statute of limitation, except that part of the land actually inclosed by him. The possession of a few acres by fencing the same in connection with land in an adjoining survey by the resident owner of the contiguous land, we do.not think is sufficient to put the owner upon notice that any' claim is asserted beyond the land actually fenced.

This conclusion is not in conflict with the case of Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 163, cited by the Court of Civil Appeals. The case cited was not a case of mere encroachment by inclosure of a part, of an adjoining survey. In that ease, the occupant actually had a dwelling house and other buildings used in connection therewith on the tract of land claimed by limitation, and the land so claimed by limitation was actually used as a home. The claimant in that case resided on the land in controversy, and the extent of his claim was shown by the fact that he had caused an actual survey to be made of 160 acres which included his residence and other outbuildings. We think the facts of the case of' Smith v. Jones clearly distinguish it from this case.

Our conclusion is that the Court of Civil ■ Appeals erred in affirming the judgment of the trial court in favor of Stevens as to the 160 acres claimed by him. The most the facts authorized was a judgment in his favor for the land actually included within the inclosure.

We are unable from the record to determine the boundaries of the land so inclosed. We will not, therefore, advise that the judgment be here rendered as between the plaintiffs and Stevens, but we are of the opinion that the judgment of the Court of Civil Appeals in favor of the plaintiffs A. C. Fielder and others, against the Houston Oil Company and R. H. Kirby, should be affirmed, and that the judgment of the Court of Civil Appeals and of the trial court in favor of R. S. Stevens should be reversed and the cause remanded for a new trial, with instruction to the trial court to hear evidence, if offered by Stevens, showing the actual amount of the land in controversy included within the inclosure of Stevens and render judgment in his favor for the land so inclosed, and to render judgment for plaintiffs for the remainder of the land in controversy.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court.

The case is correctly remanded upon the ground stated by the commission in its opinion.
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PEASE v. STATE ex rel. SUTHERLAND.
    (No. 12-2581.)
    (Commission of Appeals of Texas, Section A.
    Jan. 22, 1919.)
    1. Courts &wkey;>247(l) — • Court of Civil Appeals — Einal Decisions.
    Decision of Court of Civil Appeals affirming decision of trial court decreeing that relator recover the office of mayor is final, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1591, providing that decisions of Courts of Civil Appeals shall be conclusive in cases of contested elections except in certain instances.
    2. Quo Warranto &wkey;»60 — Recovery oe Salary-Pleading — Evidence.
    In a suit in the nature of quo warranto contesting an election and seeking to oust defendant from the office of mayor, pleadings and evidence held insufficient to support a money judgment in favor of relator for salary.
    8. Evidence &wkey;>52 — Judicial Notice —Ef-eect — Receipt oe Salary — Prooe.
    In suit in the nature of quo warranto contesting an election and seeking to oust defendant from the office of mayor, judicial knowledge of the act of the Legislature incorporating the city and fixing the salary of the office of mayor would not relieve relator of the burden of proving that defendant collected or received the salary of the office.
    4. Evidence <&wkey;54, 83(1) — Official Acts— Presumption Based Upon Presumption.
    Presumption that officials do their duty would not supply proof that defendant collected or received salary, in the absence of the further presumption that money with which to pay the salary was available, and such train of presumptions would not be permissible under the rule that one presumption cannot be based upon another.
    Error to Court of Civil Appeals of Fourth. Supreme Judicial District.
    Quo warranto by the State, oy. the relation of H. R. Sutherland, against Clark Pease. Judgment for relator was reformed and affirmed by the Court of Civil Appeals (155 5. W. 657), and defendant brings error.
    Judgment of the Court of Civil Appeals, in so far as it reforms judgment of trial court, reversed and annulled.
    Jno. C. Scott, G. R. Scott, and Boone & Pope, all of Corpus Christi, and Cunningham & Birkhead, of San Antonio, for plaintiff in error.
    Jno. I. Kleiber, of Brownsville, D. McNeil Turner, of Denver, Colo., and Russell Savage and Pope & Taylor, all of Corpus Christi, for defendant in error.
   TAYLOR, J.

This is a contested election suit instituted in the form- of a quo warranto proceeding in the name of the state, upon the relation of H. R. Sutherland, to oust the respondent, Clark Pease, from the office of mayor of the city of Corpus Christi and recover from him the said office.

The first three paragraphs of the relator’s information are as follows:

“Now comes the state of Texas, by the district attorney of the Twenty-Eighth judicial district, on the relation of H. R. Sutherland, leave of the court being first had and obtained, and files this his first-amended original information, amending the original information herein filed on the 3d day of June, A. D. 1911, and by way of such amendment says:
“The state of Texas, by the district attorney of the Twenty-Eighth judicial district, on the relation of H. R. Sutherland, complaining of Clark Pease, defendant, represents: That said relator and the defendant reside in the county of Nueces aforesaid. That at a general municipal election duly held on the 4th day of April, A. D. 1911, in the city of Corpus Christi, Texas, pursuant to the charter of said city, in such cases made and provided, for the election among other officers, of a mayor of said city of Corpus Christi, Texas, to discharge the duties of that office from the 4th day of April, A. D. 1911, for the term of two years, said H. R. Sutherland was duly and lawfully elected to the office of mayor of said city, and by reason of said election he was authorized and entitled to hold and enjoy said office for the term of two years as aforesaid, and to receive the emoluments of said office for said term. That the emoluments of said office would amount to the sum of thirty-six hundred dollars ($3,600.00) during said term and said office is of the reasonable value of thirty-six hundred dollars ($3,600.00).
“That on the 5th day of May, A. D. 1911, the said Clark Pease, illegally and wrongfully claiming said office, usurped and intruded into said office, and has ever since unlawfully and wrongfully held said office, and still unlawfully holds the same, and exercises the powers and performs the duties of said office, and receives all the profits and emoluments and enjoys all the rights and privileges of same.”

The body of the information states at length the matters relied on to establish the invalidity of the respondent’s election to the office of mayor, and on which the relator bases his claim for its recovery.' The information contains no allegation made as a basis for a claim against the respondent for the salary of the office, unless the foregoing reference to the office profits and emoluments and the receipts thereof by the respondent can be construed as such an allegation. The information concludes with the following prayer:

“Wherefore plaintiff prays the court that defendant be cited to appear and answer this petition and for judgment that the defendant is not entitled to the said office herein mentioned; that the relator be adjudged entitled to the office of mayor of said city and its franchises and privileges; that the relator be permitted to qualify for said office within 20 days after final judgment herein, and thereupon to enter upon the duties of his office; that the defendant be commanded to surrender said office to the relator upon his qualification as aforesaid; and that he have judgment for costs of suit, and for such other and further relief, special and general, in law and in equity, that he may be justly entitled to.”

The trial was without the intervention of a jury, and resulted in a judgment for the relator, decreeing that he recover the said office of mayor, that he have a writ of possession and writ of ouster directed to the sheriff, commanding him to oust the respondent from said office and place the relator in possession thereof. The judgment rendered awarded all of the relief sought by the relator in the trial court. The Court of Civil Appeals reformed the judgment of the trial court, and, as reformed, affirmed it so as to give the relator, in addition to the relief given Below, a money judgment against the respondent for salary in the sum of $2,241.24. 355 S. W. 657.

The Supreme Court in considering the application for the writ, viewed the controversy, in virtue of the opinion of the Court of Civil Appeals, as dual in its nature and separable, presenting a question arising out of a ease of contested election, and a question involving the recovery of the salary of the office. The court, being of the opinion that the judgment of the Court of Civil Appeals is final as it relates to that branch of the ease involving the election contest (Ver. Say. Civ. Stat. art. 1591), granted the writ as to that branch of the case only that involves the recovery of salary. The court in granting the writ expressed the opinion “that, in the state of the pleading and evidence, the Court of Civil Appeals erred in rendering a money judgment,” and thereafter overruled - a motion asking that the writ be set aside. The defendant in error, on submission of the case to the Commission of Appeals, filed another motion requesting that the writ be dismissed for the tvant of jurisdiction, suggesting that the former motion was passed upon by the Supreme Court before the decision by that court of the case of Cole v. Cobolini, 106 Tex. 472, 170 S. W. 1030- We have ascertained that, while the motion was disposed of before the opinion in the Cobolini Case was written, it was overruled while that case was under consideration, and in the light of the holding later announced in the opinion. Being governed by the action of the Supreme Court in overruling the former motion under the circumstances pointed out, we recommend that the defendant in error’s motion to dismiss be overruled.

The judgment of the Court of Civil Appeals being final in so far as it affirms the judgment of the trial court, but does not reform it, the only question necessary to bo determined on review is whether the pleadings and evidence are sufficient to support the money judgment for salary rendered by the Court of Civil Appeals. The only allegations contained in the information that relate to that subject are set out above in their entirety. They are general in their nature and apparently formal. The prayer, which is quoted above in full, does not suggest that the relator is seeking such relief. The judgment of the trial court incorporates an adjudication of all the issues before the court, but contains no adjudication upon a salary issue. Nor did the respondent point out by a motion for a new trial that the court had omitted from the decree a determination of that'issue. It is apparent from the record that neither the court nor the respondent was apprised by the pleadings, even after the trial of the case, that t;he relator was seeking to recover a judgment for salary. He was not so notified until the relator, by filing a cross-assignment of error on appeal, suggested that the Trial Court erred in not granting such relief. As the defendant has a substantial right to be confronted with the pleadings of the plaintiff, so framed as to give him reasonable notice of what is designed by them, the Court of Civil Appeals was in error in permitting the relator to give a direction to the case on appeal of which the respondent “was not fairly notified by the pleadings before the trial commenced.” Ellis v. Singletary, 45 Tex. 46.

The error pointed out is made more apparent by the absence of any evidence to support the judgment for salary. The Court of Civil Appeals, in sustaining the cross-assignment of error referred to, states there is no evidence pointed out which shows what the salary of the office amounts to. The record warrants the additional statement that there is no evidence of any character showing or tending to show that the respondent collected or received any salary or emolument from the office of mayor during the period covered by the suit. Judicial knowledge of the act of the Legislature incorporating the city of Corpus Christi and fixing the salary of the office of mayor does not relieve the relator of the burden of proving that the respondent collected or received the salary of the office. Nor would the presumption that officials do their duty, if it could be indulged under the facts of this case, supply such proof, in the absence of the further presumption that the money with which to pay the salary was available. Clearly, such a train of presumptions is not permissible under the rule that one presumption cannot be based upon another. Enc. of Evid. vol. 9, p. 880; Mo. Pac. By. Co. v. Porter, 73 Tex. 304, 11 S. W. 324.

There being neither a sufficient pleading nor any evidence to support the judgment for salary, we conclude that the judgment of the Court of Civil Appeals, in so far as it reforms the judgment of the trial court by adding thereto the said award for salary, should be reversed and annulled.

PHILLIPS, C. J.

We approve the holding of the Commission of Appeals; and the Judgment of the Court of Civil Appeals, in so far as it reformed the judgment of the trial court by adding thereto an award for salary in favor of Sutherland, is reversed, and in respect to the salary issue the cause will be remanded to the district court.
      igsAFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. LATTIMORB, J.

text:
    BEASON v. STATE.
    (No. 4816.)
    (Court of Criminal Appeals of Texas.
    June 26, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Rape @=>53(2) — Assault to Rape — Sufficiency op Evidence.
    Evidence held. sufficient to sustain a conviction of assault to rape.
    2. Criminal Law <©=730(14) — Harmless Error-Remarks of Counsel.
    In a prosecution for assault to rape, a statement by prosecuting attorney: “It is a wonder to me he is sitting in this courthouse today.” “If he had been a man of dark skin, he would not be here to-day” — was not prejudicial, where the court instructed the jury at defendant’s request not to consider such remarks.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Edward Beason was convicted of assault to rape, and he appeals.
    Affirmed.
    B. B. Perkins and Thomas Shearon, both of Rusk, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., and Norman, Shook & Gibson, of Rusk, for the State.
   PRENDERGAST, J.

Appellant was convicted of assault to rape Miss Allie Alexander, a woman, by force.

Appellant contends the evidence was insufficient to sustain the conviction. The statement of facts has been read and studied more than once. The evidence was amply sufficient to sustain the conviction. It is unnecessary to recite the whole evidence. Some of the main features of it will be stated.

Miss Alexander, the assaulted girl, was a young woman about 21 years of age; the appellant a young man 26 or 27 years of age. She was barely acquainted with him. She did not live in the community where the assault was committed,, but lived elsewhere with her parents. On July 24th she was on a visit to her married sister, who lived near where the assault occurred. Thé assault occurred in the dead hours of night, the exact hour not stated, but it must have been late in the night. In the evening appellant sought to make an engagement with her to take her from Shiloh church that night back to her sister’s whom she was visiting. She hesitated to make an engagement with him because she was so slightly acquainted with him. However, others interceded in his behalf, and upon their assurance that he was all right she made the engagement with him. Her married sister and her husband attended the church, that night, as well as one of her unmarried sisters. Her married sister and her husband were in a wagon. Her single sister, whom a young man escorted, and her cousin, a young man, who accompanied another young lady, walked. Appellant took her in his buggy. The married sister and her husband left the church first. It was understood between appellant and her and her unmarried sister and the other young lady that they would precede them in the buggy, but drive rather slow, which they did. The distance from the church to her married sister’s is not given, but must have been a few miles. There were several residences along the road from the church to her married sister’s, close to the road. The last one was Mr. Rozelle’s. The distance between Rozelle’s and her sister’s, along the road, was about 700 yards; not quite so far by air line. It was about 390 yards from Rozelle’s along the main road to where a road turned off to go up to her sister’s, and about 315 yards from where this road turned off to her sister’s. It was about 400 yards from where this road turned out back about the opposite direction of her sister’s to where a Mr. Mullenex lived.

Appellant’s conduct towards Miss Alexander was not improper until they had passed Mr. Rozelle’s house. After he passed it he ¡announced to her that that was the last residence they would pass until they reached her sister’s and then he began his improper conduct. This conduct consisted at first of his placing his arm behind her on the back of the buggy seat. She protested and objected to this, and demanded that he should not so act. He persisted. She then took his hand and arm from behind her and pulled it away therefrom. When she did so, he would take hold of her hand and attempt to hold it, but she would wrench it away from him. When he got to the point of this crossroads he announced to her that he would stop there. The night was quite dark. She objected and protested, and repeatedly demanded that he should drive on to her sister’s and not stop there, but he refused. He then turned his buggy down the road towards Mr. Mullenex’s, in the opposite direction from her sister’s. She protested and objected, and, demanded that he should permit her to get out, which he refused to permit, and prevented lier from getting out. She said:

“I tried to get out, but he wouldn’t let me out. He put his arms around me then and commenced holding me that way. He just put both of his arms around me this way (witness indicating) and was holding me, and I could not get out.”

She swore he finally told her that, if she' would get out, he, too, would get out — “We will get out.” She told him she was not afraid to go on home to her sister’s alone, and persisted in her efforts to get out and go. But he in offering to then let her get out said repeatedly, “We will get out here.” She told him she did not want him to get out, but she wanted him to let her get out. She swore:

“I think I got my foot on the stirrup then, and would have gotten out, but he flew mad and showed me no respect, and I was afraid to get out there. I was afraid to get out. I was afraid he would get me out of the buggy and I could not do anything with him; was afraid if he got me out of the buggy I could not do anything with him; I was afraid he would overpower me.” “As to why I did not get out of the buggy, he was holding me with his arms and hands. He had both of his arms and hands hold of me, and I could not get out. * * * I tried to get out all of the time, but I couldn’t.”

By this time appellant had driven about 215 yards from the crossing of said roads towards Mr. Mullenex’s, and he there stopped the buggy. It was from about 200 to 220 yards from where he stopped to Mr. Mullen-ex’s house. She swore that—

“He stopped, and I tried to get out; kept on trying to get out all of the time, but he would not let me out. I tried to get him to let me out when he stopped, and told him everything I could, .but he wouldn’t let me out and still held me, and I tried to get out anyhow, and could not. He was holding me, and I was scuffling around trying to get out, and my side was against the armpieee of the buggy, and my head back this way, and it was hurting my side, this armpieee was; and he just kept on putting his arms around me and squeezing me, and I was wrenching about all I could. I was just scared nearly to death and couldn’t hardly get my breath, and he kept on holding me tighter and putting his feet and legs against me, and I tried to shove him away with my feet, and then he put his leg over me this way (witness showing). He tried then to get his left leg over this way in between my legs, but I tried to keep his leg knocked away with my knees and feet. I would just kick his leg off. He just kept on there that way, I don’t know how long, trying to get- his leg in between my legs, but I kept it kicked off, but in some way he got around sorter in front and sat down across my lap. He just got straddle of my lap sitting in the buggy. He was holding both of my hands down this way with both of his hands (witness showing), and I could not get him off. Part of the time he had me around the waist with both arms and part of the time he was holding my hands down in front with both hands. At that time he had gotten straddle of my lap and was sitting down on me in that way. Before he got straddle of my lap he had me around the waist with both hands, and it was then that he kept on trying to put his leg in between my legs and I kept it kicked off with my knees and feet, and after that he got around in front somehow and sat down straddle of my lap. Of course, I was begging him to stop all of the time, and when he was trying to put his leg in between my legs and I was kicking it off, he told me to stop, and I told him I would not do it, and he said, ‘How do you expect me to love you and you doing this way.’ He kissed me more than once, but -I was not willing for him to kiss me at all, and I tried to keep him from kissing me. He did not bite me, but he tried to. I tried to keep him from kissing me and biting me. He kissed me, but he did not bite me. I never consented for him to kiss me, and never consented for him to do any of the things he was doing with me. All the time he was doing what he did, from the time he first put his arm over the seat and I took it down, and down at the corner and up that road after he turned off up towards Mr. Mullenex’s house and stopped up there, I was trying all of that time to keep him from doing what he was doing. After he turned off up that road I thought I understood what he was trying to do and what he meant to do to me. I knew he was trying to overpower me then. I thought he was trying to have carnal intercourse with me, but he never did. He never succeeded in having intercourse with me, because I finally got away from him. I got out "from under him when he was across my lap that way, and got out through the back of the buggy. I got out over the back of the buggy and ran. * * * After I got out of the buggy I ran. I ran east back towards my brother-in-law’s house. The defendant turned the buggy around; I heard him when he turned around. When I heard him turning around, I ran out of the road and fell in a ditch and hid. I stayed there in that ditch for some little time; I don’t know just exactly how long it was, but it seemed to me like it was a long time. I stayed there until he went on up, and I heard him calling some one up there near the house. I did not halloa then, but I did after he passed away, and I went on up through the pasture. The defendant had passed me then, and it was after I got back down near the corner. I never halloaed up there in the road because I was afraid to; I was afraid of the defendant. When the defendant was scuffling with me in the buggy and when my side was across the armpieee of the buggy, it hurt me, and I was sore after that- a day or two in my chest and arms.”

Appellant, after she got out of the buggy and escaped from him, turned and drove back rapidly, hunting for her, but he missed her, because she was lying hid in the ditch. As soon as he passed her she got up, went back across the road, crawled under the wire fence into Mr. Rozelle’s pasture. Appellant ran his buggy up to her sister’s, then turned and ran back down the road he had come towards where she then was, some hundreds of yards from her sister’s. When she saw this, she repeatedly halloaed for the young man, her cousin, to come to her and save her from appellant. Her cousin, with others, then went to where she was and found, as several of them swore, that she was very greatly excited, completely exhausted, was pale and trembling, and this condition continued for some time after she got to her sister’s and told them what had occurred. Her cousin swore that when he first got to her she seemed to be unconscious; was very nervous; shocked pretty bad. They found that some of the pins in her clothing were loose and out and a few holes torn in her dress and her clothing badly wrinkled. Her belt was pulled loose, and her collar was torn. She had some smut or axle grease or something of that kind on 'her face and across her neck like.

. Several of the witnesses, including her sister and brother-in-law, who were about or at her sister’s house at the time, stated that they could not distinguish who it was when she halloaed nor all she said at the time when she called for her cousin, but what they heard was a woman halloaing and calling in distress. When her cousin and another young man who was no kin to her, with the others, first got to her, she ■did not then state fully what appellant had done .to her. ¡áhe swore that the reason she did not then do so was because of the young men being present, and she did not tell it then because of that. But she did tell it to her sisters as soon as she got to the house and out of the presence and hearing of the young men. And at all times and to all tírese parties complained of the appellant’s mistreatment of her.

AH this testimony by her and the others was in no way disputed or denied.

The evidence was amply sufficient to sustain the conviction. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ross v. State, 60 Tex. Cr. R. 547, 132 S. W. 793; White v. State, CO Tex. Cr. R. 559, 132 S. W. 780; Stewart v. State, 61 Tex. Cr. R. 90, 133 S. W. 1051; Jinkins v. State, 203 S. W. 595; Taffl v. State, 69 Tex. Cr. R. 528, 155 S. W.i 214; Washington v. State, 51 Tex. Cr. R. 542, 103 S. W. 879. Mr. Branch, in section 1699, 2 Branch’s Ann. P. C., lays down this correct principle, to wit:

“If the facts show that it was owing to no lack of effort on the part of the accused that he did not accomplish his purpose to rape the woman, and that it was only on account of her effective resistenco and speed that she escaped, a conviction approved by the trial judge, whose duty it is to set it aside if not satisfied therewith, will not bo disturbed on the facts on appeal” — citing Stout v. State, 22 Tex. App. 339, 3 S. W. 231; Crew v. State, 22 S. W. 973; Schroeder v. State, 36 S. W. 94; Berry v. State, 44 Tex. Cr. R. 398, 72 S. W. 170; Castle v. State, 49 Tex. Cr. R. 1, 90 S. W. 32; Rogers v. State, 65 Tex. Cr. R. 105, 143 S. W. 631; Taff v. State, 69 Tex. Cr. R. 528, 155 S. W. 214; Allen v. State, 76 Tex. Cr. R. 416, 177 S. W. 88.

The court gave an apt and correct charge submitting to the jury for a finding every question that was raised by the evidence. The court therefore did not err in refusing to give his special charges 5 and 6, which were clearly upon the weight of the testimony. The court in the main charge more than once told the jury that they could not convict appellant of an assault with intent to rape unless they believed from the evidence beyond a reasonable doubt that 11⅞ had the specific intention at the time of having carnal knowledge of said girl by force and without her consent. He also defined force as prescribed by the statute (article 1064, P. C.) and exactly as held sufficient by the decisions of this court in Conger v. State, 63 Tex. Cr. R. 335, 140 S. W. 1112, and cases there cited. Section 1103, White’s Ann. P. C., aud authorities there cited.

Neither did the court err in refusing appellant’s seventh special charge. It was argumentative, and there was no evidence upon which to base it. As stated, the court distinctly required the jury to believe beyond a reasonable doubt that, if appellant committed the assault before they could convict him of an assault with intent to rape, they must believe that at the time he had the specific intention to have' intercourse with her and without her consent and by such force as specifically required by the statute and the decisions. The evidence would exclude the idea that he was attempting to have carnal intercourse' with her with her consent.

Appellant has a very meager bill to a statement made by the private prosecutor iu his argument to the jury. The bill merely states that Mr. Norman, private prosecutor, on making the closing argument for the state, said:

“It is a wonder to mo lie ⅛ sitting in this courthouse to-day.” “If he had been a man of dark skin, he would not be here to-day.”

He objected to this statement, and the court, at his instance, gave his special written instructions not to consider said remarks. The bill iu no way shows the occasion for these remarks, whether they were brought out by the argument of appellant’s attorneys or otherwise. In fact, nothing further is shown than by the bill as stated and that the court instructed the jury at his request not to consider said remarks. These remarks, in connection with the court’s charge, as has often been held by this court, present no reversible error.

The judgment is affirmed,

On Motion for Rehearing

LATTIMORB, J.

This case comes before the court upon appellant’s motion for rehearing, based mainly on his contention that the evidence does not support the verdict. He raises one or two objections to matters in the charge which we do not think amount to anything.

Appellant was convicted of an assault with intent to rape, and contends here that he should not have been convicted of more than an aggravated assault, for the reason that his taking the injured party into a dark road and his assaults upon her, continued for some time, had no other purpose than to secure intercourse with her by her consent. As we view it, there is no evidence in the record to justify such a conclusion. The young woman alleged to have been assaulted was not attacked at any angle as to her virtue, and credibility as a witness. Her evidence makes out an aggravated case of unprovoked and unwarranted assault, and the court fully submitted to the jury, in several phases, the question as to whether such assault was with intent to commit rape, or merely to secure carnal favors with the consent of the assaulted party. A jury of his own choosing passed on that question, and we do not feel disposed to interfere with their finding. •

Appellant’s motion is overruled.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    LOPEZ v. STATE.
    (No. 5148.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Criminal Law <§c=>1091(3) — Bill of Exceptions — INDEFINITENESS.
    Bill of exceptions to refusal to permit state’s witness to answer certain question on cross-examination held indefinite, not showing in what connection testimony came, or why defendant was seeking to introduce it.
    2. Criminal Law <§=>1170½(5) — Local Option Law — Evidence.
    In prosecution for violating local option law, refusal to permit state’s witness to answer question by defendant on cross-examination held not erroneous; witness, as shown by trial judge’s qualification, testifying contrary to what defendant expected to prove by him.
    3. Intoxicating Liquors <§=>146(3) — Local Option Law — Sale.
    If one desiring intoxicating liquor gave money to another, who gave it to defendant, and defendant brought liquor, and gave it to person who furnished money, it was sale by defendant within contemplation of local option law.
    On Motion for Rehearing.
    4. Criminal Law <§=>1090(12), 1092(5) — Appeal — Misconduct of Jury.
    To review question of misconduct of jury in hearing evidence from one or more of the jurors not introduced during trial, set up as ground for new trial, it is necessary that such evidence as was introduced should he perpetuated either in statement of facts or a bill of exceptions, reciting facts, approved by judge and filed during term.
    5. Criminal Law <§=>956(1) — Motion for New Trial — Affidavit as Evidence,
    Affidavit attached to motion for new trial is but a pleading, which authorizes introduction of supporting evidence, not being evidence itself, unless introduced as such on trial of motion in one of the ways specified.
    Appeal from District Court, Brooks County; V. W. Taylor, Judge.
    Antonio Lopez was convicted of violating the local option law, and he appeals.
    Affirmed.
    J. W. Wilson, of Ealfurrias, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for.the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at one year’s confinement in the penitentiary.

There is but one bill of exceptions found in the record. It recites that while the state’s witness Pena was being cross-examined by appellant he propounded the following question: “Was the money that was taken in put in that box?” The purpose of the question was to show that all money taken in at the gambling house was put in a box. which, it had been theretofore shown, was for the purpose of placing money and other things, and the prosecution objected to said question upon the following ground: “We would like for that question to be confined to the question in issue.” This was sustained, and the question was excluded. The reply would have been: “Yes; all money that was taken in was put in that box, and the money I paid him was placed in that box.” Appellant excepted to the ruling of the court. The judge qualifies this bill, and, among other things, states:

“The witness had already testified on cross-examination by defendant’s counsel that there was a drawer or box there where they kept the decks, chips, cards, and money where he was gambling, and the witness was permitted to testify as to what was done with the money he gave for the booze, and he testified that the money he gave for the booze was delivered in each instance by him to Pancho Perez, and upon one or more occasions by Pancho to Antonio Lopez, the defendant, and, when not delivered to the defendant Pancho, that it was not placed in said box, but placed in Pancho’s pocket, and, when delivered to Antonio, placed in Antonio’s pocket; the witness testifying absolutely contrary to what defendant says he expected to prove by him.”

This is a quotation from the judge’s qualification.

The bill is too indefinite, and does not make it appear just what was the object and purpose of the introduction of the excluded testimony or its connection with the facts in regard to selling the whisky. The witness Pena was the main state’s witness. He testified to the sale by appellant to himself of more than one bottle of mescal. This was denied by appellant. We think the bill of exceptions is indefinite. It does not show in what connection the testimony came, or why he was seeking to introduce fit. Under the court’s qualification the testimony was admissible. The facts further show that there was a gambling game in progress; that appellant was present, and when the witness desired to buy intoxicating liquors the defendant went away and came back directly with the mescal, and the witness Pena paid him for it. This occurred five times during the time witness was at the game and was purchasing mescal from appellant. This is the testimony of Pena. There was an issue between the state’s witness and the appellant with reference to this matter. He denied having mescal; also that he sold or was interested in selling intoxicants to Pena. Pena got the mescal from some one, and became very drunk. His testimony with reference to the last two or three bottles he bought was somewhat erratic and confused because of his drunken condition. We are of opinion that the bill of exceptions shows no error. If Pena gave the money to Pancho, and Pan-cho gave it to appellant, and appellant brought the intoxicating liquors and gave it to the witness, it still would be a sale by appellant. This court does not feel justified in reversing the judgment.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, J.

Appellant, by his motion for rehearing, urges misconduct on the part of the jury in hearing evidence from one or more of the jurors which was not introduced during the trial. The affidavit of the juror Major is attached to the motion for new trial in support of the allegation of such misconduct. The judgment recites that the court heard the evidence and overruled the motion for new trial. The record does not contain a verification of the facts of this ground of the motion, either by bill of exceptions or a statement of facts.

In order to have this question reviewed, it is necessary that such evidence as was introduced should be perpetuated either in the statement of facts or a bill of exceptions reciting the facts, approved by the judge and filed during the term. We take the record as it is made as being correct. The affidavit of the juror is not evidence unless it was introduced as such on the trial of the motion. Had the evidence been approved by the. judge in a statement of facts or bill of exceptions and properly filed,(it would have presented the question for revision. The affidavit attached to the motion is but a pleading which authorizes the introduction of supporting evidence. It is not evidence within itself, and in order to constitute it evidence it should have been introduced as such on trial of the motion and shown to have been so introduced in one of the ways specified. This has been the rule under the authorities and decisions of this court. Sharp v. State, 71 Tex. Cr. R. 633, 160 S. W. 369. A great many cases could be cited to the same effect, but we deem it unnecessary, but cite Reyes v. State, 196 S. W. 532, for a long list of such cases.

The judgment recites that evidence was heard and the motion overruled. What that evidence was is not shown in any way in the record that is before us; therefore we cannot review the question suggested by thé affidavit. The evidence may not have supported the affidavit or pleading. The court in the judgment found it insufficient for that purpose and overruled the motion.

The motion for rehearing is therefore overruled.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RASBERRY v. STATE.
    (No. 5220.)
    (Court of Criminal Appeals of Texas.
    Dec. 18, 1918.
    Rehearing Denied Jan. 22, 1919.)
    1. Homicide <®=>109 — Sele-Debense—Intention.
    One does not forfeit his right of self-defense by reason of his intentions, unaffected by his acts, or words evincing his design to put his intentions into execution.
    2. Criminal Law <®=^S22(8) — Cure of Error —IrrSIRUOlTONS.
    Construed in connection with remainder of the charge, one paragraph held not erroneous as making defendant’s right of self-defense depend not upon his acts, but upon his unexecuted intentions.
    Appeal from District Court, Jones County ; John B. Thomas, Judge.
    Alfred Rasberry was convicted of homicide, and he appeals.
    Affirmed.
    J. E. Cunningham, of Abilene, J. H. Beall, of Sweetwater, and E. T. Brooks, of Anson, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This case, on a former appeal, was reversed, and in the reports (80 Tex. Cr. R. 498, 191 S. W. 356) will be found a sufficient statement.

The court, in a charge which, we think, is unexceptionable, instructed the jury upon the law of murder, manslaughter, and defined principal offenders. In the twelfth paragraph of the charge he stated with accuracy and fairness the general principles of self-defense in their application to both real and apparent danger. He also charged on the presumption of intent to Mil by the use of a deadly weapon by deceased, and on the right of one assailed to stand his ground and to continue to shoot while the danger existed or appeared to exist, viewed from his standpoint. He gave an accurate and complete charge upon the law of communicated threats.

The leading question of law presented arises from the construction of the fourteenth paragraph of the charge, which we reproduce:

“You are charged that, if you believe from the evidence beyond a reasonable doubt that prior to the time that J. P. Bostick was shot and killed by Will Luman, if he was so killed, that the defendant, Alfred Rasberry, and Will •Luman had previously formed a design to kill the said J. P. Bostick, and repaired to the scene of the killing armed with that intent on the part of him, the said Will Luman, and not under such circumstances as would reduce the homicide to the grade of manslaughter, as manslaughter has been herein defined to you, and not in defense of himself or in the defense of Alfred Rasberry as hereinbefore charged, and that said Alfred Rasberry was present and knew the unlawful intent of the said Will Luman and aided him by acts or encouraged him by words or gestures, or that prior to the killing of said J. P. Bostick the said Alfred Rasberry advised the said Will Luman to kill the deceased, and was present when he was killed, and that under such circumstances said killing was done, then in that event the killing of J. P. Bostick by Will Luman, if he did kill him, would not be in self-defense nor in defense of Alfred Rasberry, but in that event, if you so believe, the said Alfred Rasberry would be guilty of murder.”

Appellant’s criticism of the charge quoted is, in substance, that it makes appellant’s right of self-defense depend, not upon his acts, but upon his unexecuted intentions. Manifestly, if the paragraph, considered in connection with the other subdivisions of the charge, is susceptible of the construction contended, it is erroneous, because one does not forfeit his right of self-defense by reason of his intentions, unaffected by his acts or words evincing his design to put his intentions into execution. Cheat-Ram v. State, 57 Tex. Or. R. 442, 125 S. W. 565; Pratt v. State, 50 Tex. Or. R. 230, 96 S. W. 8; Branch’s Ann. P. C. p. 1099.

In the various other paragraphs of the charge mentioned the law of self-defense, as applicable to appellant and his companion, were stated to the jury unincumbered by any qualification. In the subdivision on threats the law was applied to the facts, with instruction to acquit if found in appellant’s favor; and in the thirteenth section of the charge the law was applied in appropriate language to appellant’s theory of defense, accompanied by an unqualified instruction to acquit if found' in favor of appellant or if a reasonable doubt was entertained as to their existence. In the part of‘the charge assailed the court, in presenting the converse of appellant’s theory, applied the law of principals to the state’s theory of a prearranged, unprovoked assault, not extenuated or excused by any act done or word, spoken by the deceased immediately preceding it, guarding at the same time appellant’s right, by special reference to the instructions given on manslaughter and self-defense, predicating the state’s right to a conviction under the fourteenth paragraph upon a negative finding by the jury on the facts which would mitigate or justify the homicide.

The jury, in other parts of the charge, were informed that appellant’s presence alone would not render him .culpable, and in substance were instructed that, if Luman acted under circumstances justifying him, that appellant’s acquittal should follow, and the language used by the court in the charge complained of was not unadapted to the evident purpose of advising the jury that, if Luman acted with malice, and not in self-defense, or under circumstances reducing the grade of his offense to manslaughter, and that appellant, being present, had previously advised the homicide, or on its occasion, with knowledge of the unlawful purpose of Lu-man, aided or encouraged it, he would not be justified under the law of self-defense, but would be responsible for the unlawful act of Luman.

In our opinion, the paragraph in question, construed in connection with the remainder of the charge, could' not have impressed the jury with the view that, if appellant and Luman had formed the design to kill deceased, they would be guilty of murder, although at the moment of the homicide deceased was the aggressor, or apparently so, as viewed from the standpoint of appellant or Luman.

The jury has solved the issues of fact against the appellant, guided as to the law by a charge which, as a whole, fairly construed, accords the appellant the perfect right of self-defense.

The judgment is ordered affirmed.
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text:
    JOHNSON v. STATE.
    (No. 5186.)
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1919.)
    1. Criminal Law <§=»511(1) — Corroboration of Accomplice — Sufficiency.
    White Code Civ. Proc. 1911, art. 801, does not require that corroborating facts or evidence shall be such as would show guilt independent of evidence of an accomplice, it does demand that corroboration with some degree of cogency tends to establish facts, material and relevant, which would authorize jury to credit testimony of accomplice.
    2. Criminal Law <®=j511(5) — Accomplices— Corroboration.
    The mere fact that accused was seen'riding in a buggy with accomplice on night that two sacks of oats, which were found in the possession of accomplice, were taken from a crib, the door of which was fastened, was not sufficient, under Code Civ. Proc. 1911, art. 801, to corroborate the accomplice.
    Appeal from District Court, Austin County; M. C. Jeffrey, Judge.
    ííellár Johnson was convicted of burglary, and he appeals.
    Reversed and remanded.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Conviction was for burglary. The only question for review is the sufficiency of the evidence. The incriminating evidence is from Arthur George, a negro boy, a stepson of a negro by the name Miller, with whom George resided. Appellant, a negro boy about 16 years of age, lived with one Gil-lum about 300 yards from Miller’s premises. Two sacks of oats were missed by Lilly; he having on the previous night left them in his crib with the door fastened. A search warrant for the search of the premises of Gillum and Miller was obtained, and, after failing to find the missing property on Gillum’s premises, they were found in Miller’s barn, upon information’ gotten from the witness George.

This witness testified that .he and appellant were together .on the night of the 16th of January, and that—

“Wo didn’t do anything except we-went over and taken two sacks of oats from C. C. Lilly’s crib. Went in a buggy with a double team. After taking the oats, got home about 10 or 11 o’clock. We left the team at the gate, turned around before we got the oats, put them in the buggy, and carried them to our house and put them in our barn.”

It appeared that Miller was cognizant of the theft; that he had stock to feed; that the sacks of oats had been opened and some of them taken out, presumably for the purpose of feeding Miller’s stock. At the time of the search Miller disclaimed knowledge of them, and the record indicates that Miller had disappeared. George gave no further description of his movements on the occasion to which he testified, and the record is silent with reference to direction and distance.

There is evidence to the effect that Miller and Gillum were tenants on the same farm and used the same gate, in going from the road into their premises, and when Miller missed his oats he found some on the ground in the road some 75 yards from his bam, and found, he says, tracks of two buggies, and that one of them was a buggy with a double team, the tracks of which he followed to the gate mentioned.

The witness Lubajowisky testified that on the night the oats were lost he saw a buggy drawn by two horses pass his house about 11 o’clock at night and recognized Miller’s team, and that the next morning the oats were found at the house of the same parties who passed his house. He said that he recognized two negroes in the buggy, who were about 25 steps from him; that one of them was Arthur George, and the other one he had often seen, but could not name, but whom he designated by pointing .out the defendant. The buggy, he says, was coming from town and going in the direction of Miller’s house, and he saw nothing in it except the two boys. Nothing special occurred to draw his attention except that he had walked from town, and as he saw the buggy pass he thought if he had known it was coming he might have ridden. The record is silent as to where his house was situated with reference to the premises of Lilly, to town, and to the premises of Miller and Gillum.

The testimony of this witness constitutes all that we discern in the record which could be regarded as evidence corroborating the accomplice George, and as presented in the record, in our opinion, it does not meet the requirement of the statute which declares the testimony of an accomplice insufficient to convict unless it is corroborated by other evidence tending to connect the defendant with the offense committed. Article 801, O. O. P.

At most, it shows that on the ■ night the burglary was committed a corroborating witness saw the appellant and the accomplice together in a buggy which belonged to Miller, in which there was no oats seen, at a point on the public road, the proximity of which to the scene of the crime or the relation of which in the matter of distance and direction-is not disclosed. While the law does not require that the corroborating facts or evidence shall be such as would show guilt independent of the evidence of the accomplice, it does demand that the corroboration, with some degree of cogency, tend to establish facts material and relevant whicn would authorize the jury to credit the testimony of the accomplice against the accused. In the present instance we think the bare fact that appellant was seen riding in a buggy with the accomplice at the time and place described does not, in the sense required by the statute, tend to establish the fact that appellant committed the burglary charged.

It is contended in the case that the identity of the oats -was not sufficiently established. We regard the circumstances developed sufficient upon this point. The oats, however, were not found in the possession of appellant, but in possession of Miller and George, and there is an absence of motive on the part of appellant in that it appears that under his arrangement with Gillum, with whom he was living, Gillum was to furnish both the stock and feed for his farming operations, and while appellant owned a pony it was not in use, but was in the pasture, which, according to the evidence, was sufficient for its needs, and Gillum is shown to have been provided with provender for his stock. On the contrary, Miller, in whose possession the oats were found, had a motive for committing the offense, in that the oats were useful to him in supplying his stock with food. In any event, we think the corroboration is insufficient, and that for that reason a reversal of the judgment should result.

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