author: DAVIDSON, P. J.

text:
    BOREN v. STATE.
    (No. 4373.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    1. Criminal Law &wkey;5214^-CoMPLAiNT — Affidavit — Statute.
    Under Code Cr. Proc. 1911, art. 34, providing that, where the county or district attorney takes the affidavit charging an offense, it must be reduced to writing, signed and sworn to by the affiant, though an affidavit charging defendant with gambling was not signed at the time it was sworn to, with notice to defendant, under the direction and authority of the court, the complaint could be amended or signed by the affiant.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 433%.]
    2. Indictment and Information <&wkey;45— Complaint — Affidavit—New Information.
    Where an affidavit charging defendant with gambling was not signed by affiant at the time it was sworn to, as required by Code Cr. Proc. 1911, art. 34, but the court permitted it to be signed by the affiant, with notice to defendant, the complaint being regular in all of its forms and properly sworn to, and the omission of the signature thus being cured before beginning- of trial, it was not necessary to file a new information.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. § 156.]
    Appeal from Panola County Court; R. W. Priest, Judge.
    Austin Boren was convicted of gambling, and he appeals.
    Affirmed.
    P. P. Long, of Carthage, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of gambling, his punishment being assessed at a fine of $10.

There was a motion made to quash the affidavit because it was not signed by the affiant. This motion was made before the state announced ready for trial, as we understand from the bill of exceptions. The county attorney met this by having the affiant sworn, and under oath by him showed to the court that he (the affiant) did swear to the complaint, and thought he had signed it, but overlooked it. This affidavit was taken by and sworn to before the county attorney. Article 34 of the Code of Criminal Procedure provides that, where the county or district attorney takes this affidavit, it must be reduced to writing, signed, and sworn to by the affiant, filhe complaint is in all respects sufficient except for the failure to sign it. We are of opinion that, although not signed at the time it was sworn to, it could be signed. We are of opinion that under the direction and authority of the court, with notice to the defendant, the complaint could be amended, or rather that it could be signed by the affiant as stated in the bill. That the amendment could be made or the signature placed on the affidavit, under our decisions and practice, seems to be clear. Under article 179, O. O. P., there has been some discussion as to whether or not it was necessary for the signature to be placed to the complaint. The weight of the authorities seems to be that it is not, because that article does not expressly so provide. But, where it is taken by the county attorney, article 34 requires that it be reduced to writing, sworn to and signed by the affiant, and then to be filed in the proper court, followed by an information presented by the county attorney. We hold it was necessary in this case that the signature be appended to the complaint, whatever construction may be placed on- article 479, supra.

The only question presented of any serious moment, to the mind of the writer, is whether or not it was a new complaint which would require a new information. If the complaint had been quashed and a new one hied, it would of necessity have entailed upon the county attorney the duty of filing a subsequent information on the legal complaint. We are of opinion, however, that where the complaint is regular in all of its forms and properly sworn to, and the jurat is omitted, or the signature is omitted, and these matters are cured before the beginning of the trial, it would not be necessary to file a new information. It has been held that even after a trial is begun a jurat may be placed upon the complaint and trial proceed. Taking these questions as they stand, we are of opinion that under the facts of this particular case, and under the circumstances stated, there was no error in the ruling of the court, and that a new information was not requisite.

The judgment therefore will be affirmed.
      <te>For other eases see same tapie and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    BANKSTON v. STATE.
    (No. 4357.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Criminal Law &wkey;>1083 — Appeal—Notice op Appeal — Subsequent Grant op New Trial —Effect.
    In a trial for murder, where motion for new trial was filed and overruled, and notice of appeal given, but subsequently at the instigation of the trial judge a supplemental motion for new trial was filed and awarded during the term, the notice of appeal is set aside by the action of the court in awarding a new trial and furnishes no ground for a motion to bring up the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    A1 Bankston alias Derby Kid was convicted of murder, and he appeals.
    Appeal dismissed.
    Robert B. Allen, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and allotted 30 years’ confinement in the penitentiary. ■

Motion and amended motion for new trial were properly filed, but were overruled by the court. Appellant gave notice of appeal. During the term at which the conviction occurred, and after notice of appeal had been given, a supplemental motion for new trial was filed with the permission, if not at the instigation, of the trial judge, upon newly discovered testimony. In answer to the supplemental motion, the court awarded a new trial. This all occurred at the trial term. The notice of appeal previously entered was asked to be1 withdrawn at the time of the filing of the motion for new trial, which was granted, but was not entered of record. The county attorney asked an order of this court sending up the record, on the theory that, as the notice of appeal had not been withdrawn, the action of the court on the supplemental motion for new trial was error, and that the conviction stood for appeal as if the supplemental motion had not been filed.

The question of practice involved in this matter, and appellant’s rights thereunder, is the main question to be discussed. It has been the rule by statute (Code Cr. Proc. 1911, art. 915), followed by decisions, that notice of appeal must be given and entered of record at the term of conviction. By an act of the last Legislature, this statute was amended (Acts 34th Leg. c. 104) so that, if the notice of appeal given should not be entered of record, it may be done by an order of the court nunc pro tunc as specified in the statute. The writer does not believe it’ necessary here to discuss that phase of the law. Subordinate to that, however, would be the question whether the withdrawal of the notice of appeal comes within the purview of the statute. We are of opinion that that is not important in this case for the reason that where the court orders, suggests, or permits a supplemental motion for new trial to be filed, in order to meet the probable or real merits in justice to an appellant, it would amount to a setting aside of the former notice of appeal. Nor is it proposed here to discuss the question that arises in some of the cases of the attitude of the defendant where he had given notice of appeal and entered into a recognizance for his liberty during the appeal. Under one line of cases, it is held that where appellant has given notice of appeal as a means of attaching the jurisdiction of this court and files a supplemental motion thereafter for new trial without authority from the court, it does not set aside the former notice of appeal, or rather it does not reattach the jurisdiction of the district court. Another line of cases lay down the proposition that, where the court hears the supplemental motion for new trial and refuses it, another notice of appeal must be given; and in some instances it is held that this does not reattach the jurisdiction of the trial court, because it is tantamount, in legal effect, to a refusal to permit the filing of the motion for new trial, and does not change the status or attitude of the case. The former orders of the court stand in force and are not affected by the ruling under that line of eases. There is another line of cases which hold, substantially, that where motion for new trial is asked, and the court permits it, and the party is under bond, he must surrender himself and ask the court to set aside the former ruling and entertain jurisdiction; and, if the court does entertain jurisdiction but refuses a new trial, then another notice of appeal must be given. All lines of decision, so far as we are aware, however, adhere to the rule that the court has jurisdiction of its orders, judgments, and decrees during the term of court, with the power to dispose of them as right and justice may suggest. None of those eases seem to be .exactly in point with the questions here involved except Bundick’s Case, 59 Tex. Cr. R. 9, 127 S. W. 543. This record discloses the fact that the supplemental motion was filed not only with the consent but at the suggestion of the trial judge, and new trial awarded after entertaining jurisdiction. That he had the right to entertain jurisdiction during the term of court is not debatable. Under the general power confided to the district court, if the judge entertains jurisdiction after notice of appeal, and decides adversely to his former rulings, the writer is of the opinion that, whether the notice of appeal has been specifically set aside or not, the action of the trial court in reassuming jurisdiction is a setting aside of the notice of appeal. If he overrules the subsequent motion for new trial, it seems that, under the authorities, in order to attach the jurisdiction of this court, another notice of appeal should be given. Of course, notice of appeal would not be requisite except where the defendant was exercising the right of appeal. This would not apply where he obtains a new trial. If the court has the control of its judgments during the term and subsequently sets aside a former ruling or decree and grants the new trial, there is nothing from which to appeal. The court has the authority to dispose of these matters during the term, and, in case he assumes that authority and acts, his action in and of itself, in the mind of the writer, would set aside the verdict of the jury and all dependent matters. This matter came in the case of Bundick v. State, 59 Tex. Cr. R. 9, 127 S. W. 543, a case very similar to this, and might be said to he upon “all fours.” The Bundick Case was followed in Collins v. State, 75 Tex. Cr. R. 534, 171 S. W. 729.

So the conclusion may be safely reached, in accordance with law, justice, and right, and even under the rules of practice and procedure, that the court having authority to control its judgments, orders, and decrees during its term, and exercises that, although notice of appeal had been previously given, it is a setting aside of his previous orders, where the subsequent order changes the attitude of the case. In other words, if appellant having been convicted, motion for new trial overruled, and notice of appeal given, it would leave him in the attitude of having to suffer the penalty, unless he obtained relief either in subsequent granting of a new trial or by an appeal to the Court of Criminal Appeals. If the court had authority to grant relief, where a proper showing is made, then by all the authorities and by the inherent power of the court to control its judgments during the term he could grant the new trial. He exercised that authority and, having done so, there is no right of appeal where the motion for new trial is awarded appellant. The state cannot appeal. Appellant cannot appeal from awarding him a new trial which sets aside a' conviction. It is only from a conviction he can appeal, and the state has no right in any event of an appeal.

So we hold that, when the court entertained jurisdiction of the supplemental motion for new trial, and granted the new trial, and set aside his former rulings and judgment of conviction the former notice of appeal necessarily passed with it; and that he had a right to do- this during the term of court seems not to be questioned. We therefore hold that the district court, granting the supplemental motion for new trial, vacated all previous orders holding appellant to a conviction. The case will stand for trial upon the docket as if he had not been previously convicted just as in any other case where a new trial is awarded. It was necessary to say as much as has been said in explanation of the ruling of this court.

The appeal, therefore, is dismissed, in accord with views above expressed.
      <SS=»For ocher oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WARING v. STATE.
    (No. 4374.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Weapons <&wkey;17(3) — Evidence—Relevancy.
    In a prosecution for carrying a pistol, where the state’s theory was that defendant had the pistol when going to call on his wife, from whom he was living apart, testimony that defendant was charged with having willfully deserted his wife, and details as to why he had deserted her, and also facts showing that he had done so, were improperly admitted;. they being irrelevant, the only' admissible testimony being as to the fact that the parties were living apart.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. §§ 27, 28.]
    Appeal from Harris County Court, at Daw; Murray B. Jones, Judge.
    Graham Waring was convicted of carrying a pistol, and he appeals.
    Judgment reversed, and cause remanded.
    John H. Crooker, Or. Dist. Atty., and E. T. Branch, both of Houston, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of carrying a pistol in violation of the law, his punishment being! assessed at a fine of $100.

The facts show, substantially, that he and his wife had separated by an agreement, and that he was paying her so much money a month; that on the particular occasion, before going to the residence of his wife, he called her over the telephone and obtained her permission to call. After supper he did call, and the state’s theory, supported by one witness, is that appellant had the pistol at the reasidence of his wife. They were living separately, she in a house occupied by herself and two children, and he in another place in a different part of the city of Houston. He had' been furnishing her money, after theii- agreement to separate, for several months, and- until some time in September. Along about November he began furnishing her money again, and his testimony shows he was dividing his salary between himself and his wife, who had the two children, one two years of age and the other about four months old. Appellant denied having the pistol at the time and place, and supported this by other evidence. The issue was squarely drawn on the facts.

It seems that some time after September appellant was charged with willfully deserting his wife under the statute which defines it to be a criminal offense to desert and fail to support a wife and children. The state introduced the fact that he was under such criminal accusation and quite a lot of testimony in connection with this matter. In regard to this question, the facts’ assumed a wide phase. We are of opinion this testimony was not admissible except the fact they were living apart. It had no bearing upon or relation to the fact that he did or did not carry a pistol. The fact that he was living apart from his wife and children had some bearing upon the case, for it brought in review the question as to whether or not he had a right to have a pistol where his -wife resided; they being undivorced. But the details showing his alleged desertion of his wife could not have any relation to or bearing upon the fact that he had a pistol at her house. If he had it there, and he was living to himself in a home and she in her home to herself, it might not justify him in carrying a pistol to her place of residence under the circumstances. There was also divorce or threatened divorce proceedings looking to a final separation between them. There are several bills of exception with reference to the question of desertion of his wife brought into the case; not only the fact of the pendency of the prosecution, but much of the details and matters of that sort were admitted, and why he had deserted his wife, and also facts showing that he had done so. The opinion will not deal with the details of these different bills of exception, but will dispose of the case on the general statement that those matters had no place in the prosecution and ought not to have been introduced. The issue was sharply drawn between the state and defendant as to whether he had the pistol. One witness testifies that he did; other witnesses testified that he did not; and defendant swore positively that he not only did not have a pistol, but did not own one. With this general disposition of the case, we order a reversal of the judgment of conviction, and will say that the matters with reference to the prosecution for a desertion should not be permitted to enter into the case upon another trial. If appellant had the pistol, he had it; if he did not have it, he did not have it; and what light the fact that he was being prosecuted for deserting his wife had upon this is not readily understood. It was clearly detrimental and injurious.

The judgment is reversed, and the cause remanded.


author: MORROW, J.

text:
    PYKA v. STATE.
    (No. 4361.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Weapons <&wkey;17(4) — Carrying Pistol — Sue-eiciency op Evidence — Statute.
    In a prosecution for carrying a pistol on the person in violation of Pen. Code 1911, art. 475, evidence held insufficient to support verdict of guilty.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 29.]
    Appeal from Austin County Court; G. S. Cumings, Judge.
    Joe Pyka was convicted of unlawfully carrying a pistol, and he appeals.
    Judgment reversed, and cause remanded.
    W. I. Hill, of Sealy, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of ■unlawfully carrying a pistol on and about bis person.

Tbe facts show that appellant and Jim Reneau were engaged in a fight; that the fight took place near a barber shop; and that-sevéral parties came out of the barber shop and separated the combatants. The injured party testified that after they were separated he was looking around on the ground for his glasses, when some one hit him on the head from behind; that he did not know what hit him; that he saw no pistol; that in the' scuffle with appellant, who was in his shirt sleeves, he felt no pistol. Another state’s witness testified that after the parties were separated Jim Reneau began looking around on the ground as if hunting for something, and Joe Pyka was standing near a wagon; that he saw Pyka hit Jim Reneau over the head with a pistol; Reneau fell, “and then Joe Pyka ran at me. I turned and ran. I heard a shot fired, don’t know whether Pyka shot at me or not; didn’t stay to see.” Other witnesses testified that Pyka had come into the barber shop in his shirt sleeves, and while there Reneau called him out on the sidewalk, and while on the sidewalk the fight took place. Appellant testified as follows:

“Jim Reneau then said I was a damn liar, and at the same time struck me in the face. We then clinched and fell to the ground. After scuffling on the ground for a while,. we were parted, and both got up. Reneau said, ‘I will kill the damn son of a hitch,’ and began hunting on the ground as if hunting for something to hit me with. I started to move back, when my foot struck against some object on ■ the ground. I immediately picked it up and went forward and struck Reneau over the head. He fell to the sidewalk. When picking it up I discovered it was a pistol. Windy [A. H.] Sanders said, ‘Let me take the son of a hitch.’ I ran at him intending to hit him with the same pistol. He ran, and the pistol was accidentally discharged. I then threw the pistol down near where X picked it up, by some barrels. I did not carry the pistol there. It was not my pistol, and I did not carry it away. I don’t know whose pistol it was. I" was in my shirt sleeves, not expecting trouble with Jim Reneau or any one else. I went to the barber shop to get a shave, having patronized the shop for a long time. The pistol was not mine. ■ I did not know who it belonged to nor who carried it away. There was á considerable crowd there.”

Sanders and Reneau and several other witnesses testified that they knew nothing about how the pistol came to be on the ground, nor to whom' it belonged.

The prosecution is under article 475,' Penal Code, which prohibits any person from carrying a pistol on or about his person. The appellant contends that the evidence was insufficient to support the verdict. In our opinion, this contention should be sustained by reason of the holding of this court in the following cases: Guy v. State, 74 Tex. Cr. R. 620, 170 S. W. 303, where a pistol was handed to the appellant and fired by him; Hicks v. State, 66 Tex. Cr. R. 176, 145 S. W. 938, where the appellant fqund a pistol in a store, fired it off; and it was immediately taken away from him; Fretwell v. State, 52 Tex. Cr. R. 499, 107 S. W. 837, where the appellant was handed a pistol by another, and fired it once or twice, and immediately handed it back to the person who handed it to him; Fuller v. State, 58 Tex. Cr. R. 449, 126 S. W. 569, where the possession of the pistol was momentary, appellant having carried it from a buggy to.a house, about 20 feet, and handed it to the owner; Schroeder v. State, 50 Tex. Cr. R. 112, 99 S. W. 1003, where appellant was charged with carrying a pistol at a social gathering, the evidence disclosing that as soon as he reached the gathering he divested himself of it; Sanderson v. State, 23 Tex. App. 520, 5 S. W. 138, where appellant was handed a pistol and took it and shot a rabbit and immediately returned it; Cathey v. State, 23 Tex. App. 492, 5 S. W. 137, where appellant picked up a pistol from his wagon while he was hunting for something in the wagon and entered into a short controversy with persons standing- by with reference to the locality of the article for which he was looking; Mangum v. State, 15 Tex. App. 362; Lann v. State, 25 Tex. App. 495, 8 S. W. 650, 8 Am. St. Rep. 445; Brooks v. State, 15 Tex. App. 88; Waddell v. State, 37 Tex. 354; Lyle v. State, 21 Tex. App. 153, 17 S. W. 425; West v. State, 21 Tex. App. 427, 2 S. W. 810; Pressler v. State, 19 Tex. App. 52, 53 Am. Rep. 383.

For the reason stated, the judgment is reversed. and the cause remanded.
      <S£»For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    ADAMS v. STATE.
    (No. 4372.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Indictment and Xnfobmation &wkey;>41(l)— Complaint — 'Verification.
    Code Cr. Proc. 1911, art. 598, provides that any matter of form in an indictment or information may be amended at any time before announcement' of ready for trial upon the merits, but not afterward. Article 599 provides that all amendments of an indictment or information shall be made with leave of the court and under its direction. Article 269 prescribes that the complaint shall be deemed sufficient, without regard to form, if it has certain substantial requisites, including signature by affiant. A complaint upon which an information for unlawful gaming was based. was not signed by affiant, although regular in other respects. - Upon motion tq quash tile complaint and information, but before the' prosecuting attorney had announced' himself ready for trial, the complaint was signed, whereupon the trial was allowed 'to proceed.. Meld not error.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig.' § 152.]
    ‘ Appeal from Panola County Court; R. W. Priest, Judge.
    ' Tom Adams was convicted of unlawful gaming, and he appeals.
    Affirmed.
    P. P. Long, of Carthage, for appellant.. E. B. Hendricks, Asst. Atty. Gen., for'the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully gaming, and fined $10.-00. The trial was before the court without a jury. There is no statement of facts, and but one bill of exceptions.

This bill shows that appellant made a motion to quash the complaint and information, because the complaint upon which the information was based is deficient in this: That it is not signed by affiant, and as there is no valid complaint there is no valid information. The bill further plainly shows that:

“The court refused to grant said motion, but granted the motion of the county attorney asking an order nunc pro tunc, after first having sworn afliant, who stated to the court under oath that he swore to the complaint on the date of same, and thought he had signed same, giving him the right to have affiant sign said complaint. That the court held that the county attorney, before announcing in said cause, could amend said complaint by having the affiant sign same, he having testified that he originally swore to it, and required the defendant to proceed in the trial of said cause. To which decision and order the defendant then and there excepted.”

The complaint in the record shows that it was signed properly by “J. O. Smiley, Affi-ant.” We take it from the bill of exceptions that the affiant’s name was signed thereto upon the motion of the county attorney to meet appellant’s motion to quash, and we treat the question as if the name had not been signed at the time appellant made said motion. The complaint, however, otherwise on its face shows this:

“In the name and by the authority of the state of Texas, I, J. O. Smiley, do solemnly swear,” etc.

Otherwise the affidavit or complaint charging the offense is fully in accordance with the statute. In addition, following where the signature would doubtless have been and now is, is this:

“Sworn to and subscribed before me, by J. O. Smiley, a creditable person, on this the 6th day of November, A. D. 1916. [Signed} J. R. Duran, County Attorney, Panola County, Texas.”

The information is this:

“In the name and by the authority of the state of Texas, now comes J. R. Duran, county attorney of Panola county, Texas, upon affidavit of J. O. Smiley hereto attached and made a part hereof,” etc.

And then followed allegations fully in accordance with the law charging the offense, which is signed by the county attorney officially. Our statute (article 598, C. C. P.) provides that:

“Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”'

And (article 599, C. C. P.) all amendments of an indictment .or information shall be made with the leave of the court and under its direction. Article 269, C. C. P., prescribes that the complaint shall be deemed sufficient, without regard to form, if it has these substantial. requisites, and then states what they are; the last to the effect that it must be in writing and signed by the affiant, if he is able to write his name, otherwise he must place his mark at the foot of the complaint. These articles as to the amendment in matters of form of the indictment and information, and the requisites of a complaint, have been held all along by this court to apply to the amendment in form of a complaint. Thus, when the correct name of the defendant is not given in the complaint, its insertion in the information, though not in the complaint, was held proper practice. Wilson v. State, 6 Tex. App. 154. Dikewise to correct a mistake in the name of the affiant, and conform it to the complaint, the jurat may be amended. Flournoy v. State, 51 Tex. Cr. R. 30, 100 S. W. 151; Cubine v. State, 68 Tex. Cr. R. 99, 151 S. W. 301; Neiman v. State, 29 Tex. App. 361, 16 S. W. 253.

In Montgomery v. State, 60 Tex. Cr. R. 304, 131 S. W. 1087, a motion was made to quash the information because the complaint on which it was based was not authenticated, in that it did not appear to have been sworn to before any officer authorized to administer oaths, and that after the filing thereof, and the information, it had been altered in a material respect, in that there had been added thereto the words, “W. R. Ewing, Dist. Atty. 31st Jud. Dist. of Texas,” in an attempt to make the complaint valid. In that case the court heard proof on the motion to quash, and it appeared therefrom that J. M. Blodgett, the complainant who made the complaint, had in fact been sworn to it, but the jurat was entirely omitted. After it and the information thereon had been filed, and after the appellant had been arrested and gave bond, the district attorney without leave of the court in vacation, attached his jurat to said complaint for the first time. This court then quoted article 467, C. C. P., and stated that it had been uniformly held that, unless the complaint is authenticated by the jurat of the officer before whom it is made, it will be fatally defective. But Judge Ramsey, delivering the opinion of the court, specifically held:

“That this affidavit could have been corrected under leave of and by direction of the court cannot admit of doubt”

—but held that because the district attorney had, out of court and without the court’s leave, affixed his jurat, that the complaint and information were invalid.

In Sanders v. State, 52 Tex. Cr. R. 157, 105 S. W. 803, it was shown that the jurat to the complaint was taken by the county attorney on January 31, 1906, alleging the offense to have been committed on June 23, 1906, several months after the jurat purported to have been attached to the complaint. This court, through Judge Davidson, held:

“It was made to appear to the court that on the 2d day of February, 1907, the complaint was filed alleging the offense to have been committed on the 23d of June, 1906; that the party signing it, Norris, did in fact sign it on the 30th day of January, 1907, and that by mistake he, the county attorney, used the date 1906, instead of 1907, whereas, in truth and in fact it was subscribed and sworn to on the 31st day of January, 1907, and not the 31st day of January, 1906. On this showing the county judge permitted the jurat to be amended, so as to show that the jurat was based on the complaint in January, 1907, instead of January, 1906. This ruling of the county judge was in consonance with the adjudicated cases in this state. See Flournoy v. State, 51 Tex. Cr. R. 29, 100 S. W. 151; Allen v. State, 13 S. W. 998. These cases, as we understand them, are in point and decisive of the question adversely to appellant.”

And the court affirmed that case.

In Malz v. State, 36 Tex. Cr. R. 450, 34 S. W. 267, 37 S. W. 748, the court, through Judge Henderson, said:

“The only contention of appellant that requires to be noticed is the exception taken by him to the action of the court in allowing the county attorney to amend the complaint on which the information in this case was predicated. It appears the complaint originally read, in the beginning part, ‘Personally appeared, before the undersigned authority, R. L. Winfrey,’' and it was signed, and appears to have been sworn to, by William Jackson. * * * In response to the motion to quash, the county attorney filed an answer, showing that the complaint, as shown by the affidavit, was signed and sworn to by William Jackson, and asked leave to amend the complaint by erasing the namd ‘R. L. Winfrey,’ and inserting ‘William Jackson,’ which was permitted by the court.”

To, which action appellant therein excepted. The court held that:

“The name, as stated in the body of the complaint, should have been rejected as surplusage, or the discrepancy cured by amendment; and it was competent, as was done, to erase the name of Winfrey, and insert that of Jackson”

—and that there was no error in the action of the court.

In our opinion the action of the court in this instance was correct.

The judgment is therefore affirmed..
      <&wkey;For other cases see same topic and KEY-NUJÍBER-in-aÚ Key-Numbered Digests and Indéxes


text:
    GRAY v. STATE.
    (No. 4368.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Homicide <&wkey;310(4) — Assault with Intent to Mukdeb — Instruction—Provocation.
    In a prosecution for assault to murder, where defendant claimed that the'assaulted party made an insulting remark Saturday night in the presence of defendant and his fiancée, but the assault was not committed until Sunday night, 24 hours later, a charge on aggravated assault was properly refused,
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 660.]
    Appeal from District' Court, Hill County; Horton B. Porter, Judge.
    Ed Gray was convicted of assault to murder, and he appeals.
    Affirmed.
    George W. Dupree, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment bé-ing assessed at two years’ confinement in the penitentiary.

The only question presented is whether the court erred in not charging the law in regard to aggravated assault and battery. The facts pertaining to this question may be briefly stated as follows: On Saturday night the alleged assaulted party, as claimed by appellant, stated in the presence of his sweetheart, who was then under his protection, to whom he was engaged to be married, that his kidneys were hurting him very much and he would have to lie down. Appellant protested against such language in the presence of his sweetheart and some other lady who was present, and that Rose, the assaulted party, used some vigorous language, indicating that he did not care whether they liked to hear what he said or not. Rose, the assaulted party, did not agree, nor did any of the others, with appellant upon this statement; but, take the appellant’s statement as the criterion upon which the charge should be predicated, was he entitled to have the question presented in the charge? However, taking any view of it, was appellant entitled to a charge on aggravated assault? If the question of aggravated assault was in the case, it is by reason of insulting conduct to the young lady on Saturday night, while really or qualifiedly under the protection of appellant. Appellant was present, and heard and witnessed all that occurred. There was nothing done, further than an expostulation on his part. The following Sunday evening, in the neighborhood of 24 hours later, he went to where Rose, the assaulted party, was at a nearby schoolhouse. He took his pistol with him, and called Rose to account for it, and shot him; the ball entering near or close to the left eye, and passing out near the back of fhe neck.

If aggravated assault is in the case, it is by reason of the insulting, conduct claimed by appellant to have occurred on Saturday night. In order to constitute this cause for sudden passion, appellant should have acted at the time he heard it. The question of his acting as soon as he met the injured party after being informed of the insult does not apply in this case. He was present at the time and heard what occurred. Under the statute, he was then called on to act in order to get the'benefit of the' sudden passion arising from the cause stated. It was too' late to’ wait 24' hours and' then seek the injured párty and shoot him. The question of cooling time does not arise; so that a charge on aggravated assault could be given from that viewpoint. We are of opinion that the court was not in error, in. failing to- charge the law of aggravated assault.

There being no other' question in the record; the judgment'will he affirmed.
      ffinsfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON,. P, J.

text:
    HOLLAND v. STATE.
    (No. 4358.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    1. Homicide <&wkey;305 — Law of Principals— Necessity of Converse Instructions.
    ■Whether defendant was a principal in the homicide, committed by another, depending on the deduction to-be drawn from circumstances as to a conspiracy, defendant was entitled to an instruction presenting the converse of the proposition, in the instruction for the state, authorizing a conviction on the theory of conspiracy.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 637.]
    2. Criminal Law <&wkey;479 — Expert Testimony-Insanity.
    A medical witness need not be an alienist or specialist, to give his opinion as an expert on insanity.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1067, 1068.]
    3. Homicide &wkey;>294(l) — Insanity as Defense.
    Defendant in homicide is entitled to a-submission of the issue of insanity, if his course was caused by an insane delusion as to deceased having applied to him an opprobrious name.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 605.]
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Norvin Holland was convicted, and appeals.
    Reversed and remanded.
    Cunningham & Oliver, of Abilene, and W. R. Ely,and B. L. Russell, both of Baird, for appellant. E. B. Hendricks, Asst. Atty, Gen., for the State.
   DAVIDSON,. P, J.

Appellant was convicted of manslaughter; the jury assessing his punishment' at three years’ cqnfinement in the penitentiary. .

Several months prior to the homicide appellant lived with and worked for deceased.. About two weeks prior to the killing 'they had a “falling out,” growing out of the fact that appellant refused to sharpen a hoe used by the daughter of deceased. During this trouble appellant and deceased’s wif.e had some words and áñ altercation in regard to washing done by the wife of deceased for appellant ; they became angry, ahd she ran appellant off the premises, chasing him with a chair, with which she undertook to strike him. Appellant ran away from the place and'did not return. Appellant went-thence to the house of' a brother-in-law of deceased, and remained-there in the employment of. this brother-in-law. ■ Appellant’s brothers, Dorman and Hill. Holland, were -living with their father at the-time, some miles distant from where the above trouble occurred. There is no evidence, showing, that appellant went to. the residence,of - his father after the trouble with deceased and prior to the -killing. .Dorman Holland killed deceased at the time appellant and deceased-.were engageji in a fight-at-a store on- primary-election.. dayr 1916. This trouble seems to have grown out of the fact that appellant claimed that deceased called him, in the trouble at the home of deceased, a son of a bitch, for which appellant demanded an apology. Deceased denied using the epithet, and a wordy altercation occurred between them, and upon deceased flatly denying using the term, appellant called him a liar, whereupon deceased struck or struck at him with a jug weighing about 10 pounds, and either knocked appellant down or he fell when struck at by, the deceased. This is a matter of dispute and doubt, as viewed in the light of the testimony. While they were engaged in this difficulty, and about the time appellant was getting up from where he had fallen or was knocked down, his brother Hill Holland came to his rescue, and entered into the combat, evidently to assist appellant. While these parties were engaged in fighting Dorman Holland came to the edge of the gallery from outdoors somewhere and fired a shot, which resulted in the death of deceased. The testimony renders it uncertain whether Dorman Holland was present at the inception of the trouble. He was outside the house somewhere; possibly inside of the house. He came up from the outside, however, and fired a shot from near the edge of the gallery.The state’s theory was that prior to this trouble, and before deceased came to the' store, appellant'and his brothers had a conversation. What that conversation was is not disclosed. The fact that they had the conversation was' shown. It occurred before the killing and before- deceased came to the store. The state’s theory is that appellant, was a principal to the killing, and, being so, was guilty of the homicide, although Dor-man Holland did the- shooting. This theory is based upon the idea that deceased was to take a whipping from appellant, and, if he did not submit to this, then further action might be taken'. In-other words, the theory of the state was that deceased' was either to-take a whipping, or the consequences, if he did not. . .If such an understanding was had, and appellant was a party to it, the law of principals was properly given; but if no such-understanding was had, or in contemplation,then the law of principals would not be ap-' plicable. If appellant undertook to whip deceased for the insulting remark ■ in-calling, him a son of -a bitch, and the brothers were not aiding him or encouraging him, - and had’ not agreed to it, the law of principals would not apply; or, if that was an issue, then the law "applicable to that theory, perhaps, :was justified in the charge. ■ The lawmf -princL pals -would be applicable under such cireura-stances.^ The state’s- case was -.not based upon positive or direct evidence,' and could only be reached by deduction from circumstances, -,It is. not necessary to detail these circumstances.. The. theory of ¡appellant was, the converse of .this..„„

The court gave a charge authorizing a conviction for manslaughter from the standpoint of the three brothers acting together, and that Dorman Holland having killed under those circumstances would make appellant guilty of the homicide. The court submitted this phase of the law favorable to the state. He did not, however, give the converse of the proposition, which, in our judgment, he should have done. If this conspiracy or agreement of acting together was not believed by the jury, or there was a reasonable doubt of it, they should have been instructed to acquit of the homicide. This the court, not only did not do, but refused the special requested instructions presenting this phase of the law. There were two of these special charges, which we deem unnecessary to quote. They properly presented the proposition that under the circumstances, if the jury did not believe they were acting together under a conspiracy or an agreement, -and that Dorman Holland killed deceased of his own initiative when he came upon the scene and saw the trouble between his brother and deceased, in which a jug was being used by deceased, then appellant would not be a particeps criminis to the killing. If Dorman Holland came upon the scene, and found the trouble between them, and was not a party to a previous agreement, appellant would not be guilty of the killing by his brother. We deem it hardly necessary to quote the charges. These issues were raised by the evidence, and were not given by the court, and special charges presenting them were refused. This was error. All issues suggested by the evidence should be submitted in the court’s charge. The jury could have taken appellant’s view of the case. Whether they would or would not is but speculative; nor is there any way of ascertaining what the verdict would have been, unless they had been properly charged in regard to these questions. The verdict was rendered for the state under the charge given; but the jury had no opportunity to pass upon the other 'side of the question, and find for appellant on his theory. For cases collated see Branch’s Crim. Law, § 242; Mitchell v. State, 36 Tex. Cr. R. 314, 33 S. W. 367, 36 S. W. 456; Harris v. State, 15 Tex. App. 637; Blain v. State, 30 Tex. App. 706, 18 S. W. 862; Goodwin v. State, 58 Tex. Cr. R. 496, 126 S. W. 585; Cecil v. State, 44 Tex. Cr. R. 454, 72 S. W. 197; Faulkner v. State, 43 Tex. Cr. R. 327, 65 S. W. 1093; Chapman v. State, 43 Tex. Cr. R. 336, 65 S. W. 1098, 96 Am. St. Rep. 874; Renner v. State, 43 Tex. Cr. R. 347, 65 S. W. 1102.

A bill of exceptions recites that while Dr. Powell was testifying he stated that he was a practicing physician; that he was a graduate of a medical college of Louisville, Ky.; that he had attended postgraduate schools since then; had', been practicing medicine 25 years; that he was county health officer, and. had been for a number of years; and he further stated' he was acquainted with the defendant, and treated him as one of his physicians when he had typhoid' fevfer about 6 years ago; that he saw him twice while he was down with fever. He says the effects of the disease of typhoid fever on the mind depend somewhat upon the character of the disease; some are much more severe than others; some have a very mild type, and it does not seem to affect the mental capacity very much, but that Norvin Holland had a very severe attack. He further stated:

“In my studies at different universities1 l studied insanity. I have read about it in my journals, and I have read the .text-books. I took that in connection with other diseases in my course of study, but I have not given it special study. I have studied the. disease of insanity in connection with other diseases while I was going to school and since I quit school. In my practice I have had occasion to refer to the books, and to read on the diseases of the mind as well as of the body, including insanity. I have heard the testimony of his father, and his cousin, and his sister, who have testified here tonight, and have heard all of the evidence offered by the defendant on the question of his insanity.”

At this juncture defendant offered to prove, and but for the action of the court, hereinafter set out, would have proved, by said witness, that, assuming the evidence, of said witnesses to be true, and that the jury ■believed the same, in his opinion the .defendant was of unsound mind on the occasion testified to by said witnesses, and on the 22d day of July, 1916, and that in his opinion as an expert the defendant on said day did not know that his action in connection with the homicide was wrong. The court of his own motion, before permitting the witness to testify, asked him questions and elicited the following reply:

“I do not hold myself out as an expert on insanity or mental conditions of the mind. I have ■testified in a number of insanity cases; but I do not claim to be an insanity expert, anything more than a practice that a general practitioner would have during 25 years of' practice; That is the extent'of the experience I have had.”

The court then held that said witness was not competent to testify as an expert because he had not shown himself to be an alienist or specialist on insanity, but stated that he would be permitted to testify as a nonex-pert; but defendant, through his counsel, stated that he offered this witness as an expert, and offered the above as evidence of an expert, but it was excluded from the jury, to all of which defendant objected. We are of opinion the court was in error. If under the statements of this witness he was sufficiently qualified as an expert to testify- as sought by defendant, he was authorized to testify as an expert. This witness may not. have thought it proper to say that he was an expert, and possibly did not believe:he was; but that, is not the controlling question. If he places himself in such attitude to the testimony, and a .knowledge of the .matters of inquiry, and familiarity with them; he would be. Sufficiently .an expert on insanity.- to tés-tify as to Ms opinion, either as to the facts he knew, or observations, or upon a hypothetical question. The court was in error in supposing he must be an alieMst or a specialist. That is not required, in order to get the testimony of a medical witness under the circumstances here detailed. The court was in error, and sufficiently so to require a reversal.

It seems appellant had not been afflicted with insanity up to and prior to the time he had typhoid fever. After that the testimony strongly indicates that he had a peculiar mental condition, illusions, delusions, and hallucinations, all of which were out of the ordinary and abnormal. Eor instance, on one occasion he mentioned to a witness that at night he had seen angels coming into his room down through the walls and the ceiling, and that he talked with them, and that the angel Gabriel was there and resurrected him from the grave; that he had died, and that he was resurrected through the influence and work of the angel Gabriel; he also stated that Elijah came and talked to him, and some of the other noted Bible characters; and he could not be convinced that this was not true. On another occasion he talked with his father, who seemed to be somewhat depressed financially, and appellant offered him all sorts of sums of money; told his father that he need not be troubled about it; that he had money in the bank at Clyde; that he had such .an amount there that the bank officers, cashiers, and tellers, and other officers, were totally unable to count it on account of its prodigious amount; that they had added and added the sums up until they exhausted themselves, and then got an adding machine, and had been totally unable to add up the vast sums of money he had in the bank through the agency of that machine. In truth and in fact it seems he had no money in the bank. On another occasion he said that he was sick in a hospital, or sick in bed, somewhere, and had a trained nurse with him, and that at one time the parties all left the room except himself and the nurse, and that she disrobed herself to a state of nudity in his presence, and took a bath, and tried to seduce him in having intercourse with her, but he declined, and that she made all sorts of exhibitions of herself to him, and finally, when he declined, she got on top of him on bed and ravished him, causing Ms private parts to bleed, and offered to show his gown-, with evidences, as he said, of blood on it, and that she had since married a man and gone to California, and that he was so outraged at the woman that he felt like going to OaliforMa to. kill her, although she had married another man and gone away. Sometimes his mind would be clear and he would make good trades, and at other times he seemed to have made foolish trades.

Now, in regard to the matter about which the killing occurred, appellant insisted deceased had called him a son of a bitch and it preyed upon his mind. He believed it and talked about it; said deceased had to apologize; that he would not stand being called a son of a bitch. Those who seemed to have been familiar with what occurred between them at the time of the trouble at the residence of deceased, when deceased’s wife chased him away with a chair, stated that deceased did not call Mm a son of a bitch, but called him a liar, and perhaps used some other expression; but appellant insisted that he called him a son of a bitch, and he intended to have Mm apologize for it, and when he accosted Mm at the time of the trouble deceased denied calling him a son of a bitch, and appellant gave the lie to the deceased, who perhaps knocked him down with a 10-pound gallon jug. This may have been one of his hallucinations or delusions; but if he believed it, and it worked upon his mind, in view of the other circumstances detailed, this required the court to submit the issue of insanity, so the jury would not misunderstand the situation. It is said, with reference to insanity, a man may be rational upon some subjects and totally irrational and insane on others. Along this line the court should have been explicit in his charges, and the doctor above mentioned should have been permitted to testify to all these matters that bore upon the question of insanity.

In a general way, with reference to the trouble at the time of the homicide, the state’s theory was that if the three brothers engaged in a conspiracy, or had an understanding to whip the deceased at any hazard, the state would have a right to have a charge on the killing as given by the court; but if that was not true, or if the jury should not believe it, or there was a reasonable doubt of that, then defendant had the right, independent of the issue of insanity, to have his side of the case charged; that if there was no conspiracy, or if there was not an understanding to whip deceased, and as a result push the matter beyond a whipping, in order that deceased take a chastisement or kill him without an agreement between these parties, it would not be a case of homicide as to defendant. This phase of the law was very fully met and discussed with reference to these various questions by Judge Clark in one of Ms ablest and strongest opinions, in the judgment of the writer, found in the Reports. Guffe v. State, 8 Tex. App. 187. If appellant engaged in a difficulty with deceased because he believed he had called him a son of a bitch, and he believed it, whether deceased did it or not, and asked a retraction, and it was not granted, and they engaged in a personal difficulty without any previous agreement with his brothers to aid him in the matter, and it was a fight of his own, and his brother came upon the scene, and of his own initiative did the killing, appellant would not be responsible for the liom-icicle; and if his brother Hill Holland, seeing the situation, came to his rescue and engaged in the difficulty, and the other brother, Dorman Holland, came upon the scene, without knowing what had happened, and without any agreement between them, and fired the shot under the circumstances, still appellant would not be guilty of the homicide. We are discussing Dorman Holland’s relation to the case on the theory that appellant was convicted for the shooting of the deceased under the circumstances. Of course, if the shot occurred and the fight was carried on with a prior agreement between the parties, they all would be responsible; but, if not, then appellant would not be guilty of the homicide, and the jury should have been so instructed. The other alleged errors are not discussed, because, as presented, they do not show reversible error.

The judgment is reversed, and the cause is remanded.

        GzaFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


text:
    NOBLE v. STATE.
    (No. 4379.)
    (Court of Criminal Appeals of Texas.
    March 7, 1917.)
    1. LaRCeny <&wkey;40(2) — Larceny of Hog — Issues and Proof.
    Under indictment for stealing a hog, the state must connect the defendant with the taking of the hog while alive and before it became pork.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 103-108.]
    2. Larceny <&wkey;55 — Larceny of Animal — Evidence — Sufficiency.
    Evidence held insufficient to sustain conviction for theft of a hog.
    TEd. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169.]
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Frank Noble was convicted of hog theft, and he appeals.
    Reversed and remanded.
    Armistead & Benefield, of Jefferson, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted for the theft of a hog, with his punishment fixed at two years’ confinement in the penitentiary. The only question raised for review is whether or not the evidence is sufficient to support the conviction.

G. B. O’Rear testified that he had charge of and was part owner of a sow and eight shoats that were running on the range; that he saw the sow and seven shoats run by him one afternoon between 5 and 6 o’clock; that after going home and after supper he went to hunt the missing shoat, and when he he got near appellant’s premises he saw some negroes out in the yard; that the next morning he and the sheriff went to appellant’s premises and found on the table in appellant’s house a hog which had been cut up, and part of'it was gone; that he saw in the yard where the hog had been cleaned and saw the hair; that the skull of the hog had been “busted”; that he recognized the meat as having been from his hog by the size of the ears, the size of the meat, and color of the hair, the weight of the hog about 75 pounds, and the fact that it was a sow; that he took the meat .home with him, claiming to own it; and that appellant made no statement. He and the sheriff testified that at a point about 200 yards from appellant’s house on the road they noticed indications on the ground where something bad been dragged, and followed this to a point about 45 yards from the road, where they found indications that hogs had been rooting and where one had kicked and scuffled; that there was no sign of the .dragging farther than the road.

Sid Hart, a white man, and his wife, testified that on the evening that the hog was lost, about 5 or 6 o’clock, they were driving along the road about 200 yards from appellant’s house and saw lying in the road a black and white spotted hog, unmarked; that it was nearly dead; that they had passed an automobile, or met one; and that they saw tracks of an automobile near where the hog lay and assumed that an automobile had struck it. No one was near the hog at the time, and Hart and his wife went to appellant’s house and told appellant’s wife about the hog they had seen in the road and advised her to get it out of the road, as it might be run over again. Appellant’s wife testified that she acted upon this advice and found the hog and recognized it as belonging to her brother George, and that she and her little boy dragged it to her house, leaving it in the yard, and that it was dead. Mrs. Hart further testified that the hog bore no appearance of having been hit in the head.

Appellant and his brother-in-law, George Waite, - testified that they had gone to a store called Bonham Landing, about four miles from appellant’s house, and had spent the afternoon there, and returned to appellant’s house between 8 and 9 o’clock, finding the hog dead in appellant’s yard at the time they returned, recognized it as belonging to George Waite, had cleaned it and cut it up, and that Waite had knocked it on the head with ap ax. Two other witnesses testified that they saw appellant at Bonham Landing on the evening in question; that he left about 8 or 8:30 o’clock, and one of them testified that he had spent the afternoon there from 1 o’clock on.

Appellant. and his wife claimed to have stated to the sheriff and O’Rear, at the time that they found the meat, that the hog belonged to George Waite. This was denied by O’Rear and the sheriff.

Appellant proved a good reputation.

The state relies upon circumstantial evidence alone. We quote from Branch’s Ann. P. O. p. 1341:

“If the main fact is proved as a matter of inference from other facts in evidence, the - case rests wholly, in a legal sense, upon circumstantial evidence. In cases of theft the main fact to be proved is the taking from the possession of the person in whom possession is laid,_ and if there is no direct evidence of such taking— the main fact — a charge on circumstantial evidence is required.”

Many authorities are cited by the author, including the ease of Stewart v. State, 71 Tex. Cr. R. 480, 160 S. W. 381.

We quote also from the same page the following:

“Proof of an admission of defendant will not relieve the court from the necessity of charging on circumstantial evidence in a theft ease unless the same is an unequivocal admission of the taking of the property by defendant from the possession of the person in whom possession is laid, and if it is only by a process of inference that it can be determined that there is a confession or admission of such taking — the main fact — the court should charge on circumstantial evidence. Crowell v. State, 24 Tex. App. 410, 6 S. W. 318; Willard v. State, 26 Tex. App. 130, 9 S. W. 358; Pace v. State, 41 Tex. Cr. R. 208, 51 S. W. 953, 53 S. W. 689; Gentry v. State, 41 Tex. Cr. R. 497, 56 S. W. 68.”

From a comparison of the facts of this case with those developed in the case of Watson v. State, 82 S. W. 514, it is very doubtful whether the evidence is sufficient to identify the meat found in appellant’s possession as having been from the hog which was lost by O’Rear.

Assuming, however, that the identity was proved, there is no direct evidence that appellant was in possession of the hog at any time until after it was killed. It is essential to connect him with the taking of the hog while it was a hog and before it became pork, because he is charged with the theft of the animal and not with the theft of the meat. The circumstance that the condition of the ground at a point about 45 or 50 yards from the road and about 200 yards from appellant’s house indicated that a hog had made a struggle and that something had been dragged to the road is not sufficient in our judgment,- measured by the rule of circumstantial evidence laid down in Yarbrough v. State, 151 S. W. 545, and-numerous cases there cited, including Branch’s Orim. Raw, § 206, to show that appellant was present at the point mentioned, knocked the hog down, and dragged it to the road, to the exclusion of every other reasonable hypothesis raised by the evidence. The theory of the state was that O’Rear’s hog was knocked down about 5 or 6 o’clock in the afternoon. Several witnesses testified that at that time the appellant was at a point about four miles distant from his home. By the testimony of Hart and his wife (white people), it is shown that they saw the hog at about that hour in the evening lying in the road, áppárently having been injured by an automobile. At the time they saw it, appellant was not ■shown to have been: present. On the contrary, they went to his house and informed his wife of the condition of the hog. He is not shown to have been seen. The manner of the hog’s taking to -his house is explained by his wife’s testimony corroborated by the testimony of Hart and his wife, and this explanation, as well as the alibi proved, to say nothing of the weakness of the evidence of identity, are consistent with the innocence of the appellant of the theft of - the hog. Spiller v. State, 61 Tex. Cr. R. 556, 135 S. W. 549.

We must therefore conclude that the evidence fails to sustain this conviction, and order that the judgment of the lower court be reversed, and the cause remanded.
      <te»For other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests -and Indexes


author: WILLSON, C. J.

text:
    MORRIS v. FIRST STATE BANK OF DALLAS et al.
    (No. 1724.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 18, 1917.)
    1. Pleading <&wkey;20 — Alternative Allegations — Usury.
    It appearing that the transaction was usurious from the facts pleaded to show it, the fact that the pleading designated as “exchange or interest” the sum deducted for use of money, but which by provision of Vernon’s Sayles’ Ann. Civ. St, 1914, art. 4973, is interest, does not render the pleading insufficient.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. ■§ 43.]
    2. Bills and (Notes <&wkey;408 — Refusal of Drawee to Pay — Necessity of Protest.
    By provision of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 579, 581, the holder of a check may, without protest for nonpayment, sue the drawer and indorser; action being begun before the next term of court.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1019-1021, 1113-1128.]
    3. Bills and Notes <&wkey;444 — Refusal of Drawee to Pay — Necessity of Return.
    The holder of a cheek may, on the drawee refusing payment, sue the indorser without returning the check to him, having credited his account with the amount thereof and paid his drafts, reducing his balance below such amount.
    [Ed. Note. — For other cases,- see Bills and Notes, Cent. Dig. §§ 12S7-1293.]
    4. Usury <&wkey;26 — Discounting Check for Drawer.
    ■ It is usury for one to discount a check for the drawer, retaining more than legal interest.
    [Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 57, 58, 62.]
    Appeal from District Court, Upshur County; R. M. Smith, Judge.
    Action by First State Bank of Dallas against R. A. Morris and others. From an adverse order, the named defendant appeals.
    Judgment affirmed.
    Appellee P. J. Sewell operated a sawmill near Bettie; in Upshur county, and had an account with appellee First Guaranty State Bank of that place. Appellant, in the name “Camp County Bank,” was in the banking business at Pittsburg, in Camp coupty, which adjoins Upshur county. At various times between January 20,1914, and February 9,1916, Sewell drew cheeks, 71 in number, on said First Guaranty State Bank, hereinafter called the Bettie Bank, in favor of himself or bearer, for sums ranging from $25 to $5,500 and aggregating $118,560, each of which, after- Sewell had indorsed it, Morris cashed at a discount of 1 per cent, of its face value, and some of which, after so discounting and cashing them, he indorsed and sent to appellee First State Bank of Balias, hereinafter referred to as the Dallas Bank, for credit on his account with it. Each of said checks, it seems, was paid by the Bettie Bank within a few days after its date. February 10, 1916, Sewell drew a check on the Bettie Bank in favor of himself or bearer for $5,500, and February 15, 1916, drew another check on said Bettie bank in favor of himself or bearer for $3,000, each of which, after Sewell indorsed it, Morris cashed at a like discount, and then, after himself indorsing it, sent it to the Dallas Bank for credit on his account. The Bettie Bank refused to pay these two checks when presented to it by the Dallas Bank, on the ground that Sewell did not have with it funds sufficient for the purpose. This suit was by the Dallas Bank against Sewell, as the drawer of the two checks, and Morris, as an indorser thereof, and also against the Bettie Bank. In his answer to the suit Morris, among, other things, alleged that he sent the checks to the Dallas Bank for collection, with instructions to protest same if they were not paid when presented to the Bettie Bank, and that the, Dallas Bank failed, when payment thereof was. refused, to have them protested as directed; and,' further, that the Dallas Bank, instead of promptly returning the checks to him when the Bet-cie Bank refused to pay them, retained them in its possession; and then further alleged that Sewell was solvent at the time the checks should have been returned to him, but afterwards became insolvent. Exceptions interposed by the Dallas' bank' to these allegations were sustained by the court. Se-well in his answer admitted that he owed the sum of the two cheeks, “less the sum of $1,-270.60 with penalties,” which he claimed a right to have credited against same. This claim was based on a contention made in his answer that the arrangement between himself and Morris, by which the latter cashed the 71 checks paid by the Bettie bank as stated, and the. two checks sued upon, which it refused to pay, was a scheme whereby Morris loaned'him money at a usurious rate of interest. By a cross-action Sewell sought, in the event it appeared hé was not; entitled to the credit as claimed by him, a' recovery against Morris of the sum of $2,548.10, which, he alleged, was the aggregate amount of the usurious interest which he had paid to the latter, and the statutory penalty thereon, on the 71 cheeks, and agreed to pay on the 2 checks sued upon. The scheme devised to avoid the usury law, as charged by Sewell, is shown by allegations in his answer -as follows:
    “This defendant says: That in the latter part of December, 1914, he applied to R. A. Morris of the Camp County Bank, Ms codefendant, for accommodation in the way of loans to operate his sawmill, etc.,' that the said R. A. Morris and the Camp County Bank loaned to and advanced to this defendant the sum of $127,060. That the above aggregate amount of said loans were made as follows by means of checks given as follows: [Here follows a tabulated statement showing the number, date, date of payment, and amount of each of the 71 checks, the amount of “exchange or interest charged” thereon, and the amounts and “change or interest charged” on the two checks sued upon.] That each and all of the business had and done with the said R. A. Morris and the Camp County Bank, except four small cheeks — one for $20, one for $35, one for $25, and another for $25 — wei-e given during the year 1915, up to and including the 15th day of February, 1916. That said business was done in the way and manner as follows, to wit: This defendant would draw a check on the First State Bank of Bettie, Tex., payable to himself or order, and indorse same, and sell same to R. A, Morris and the Camp County Bank. That the said Morris and the Camp County Bank would indorse said checks and send same to the First State Bank of Bettie, Tex., for payment. That said checks given for amounts and on the dates above set out reached the First State Bank of Bettie, Tex., on the dates. above set out. That said time was less [than], or about, 15 days from the time of drawing said checks. That said checks were either paid or returned by the First State Bank of Bettie, Tex. That the said R. A. Morris and the Camp County Bank did charge and collect from this defendant 1 per cent, on the amount of each and all of said checks. That defendant R. A. Morris and the Camp County Bank for this defendant’s check would deduct 1 per cent, of the full amount of said cheek, and pay this defendant the difference either in cash or in cash and the Camp County Bank’s check, or both. That the said R. A. Morris of the Camp County Bank would represent to this defendant that he was charging him the usual, lawful, and customary interest, or exchange, on said check, and each of said checks. But this defendant says and charges that the defendant R. A. Morris and the Camp County Bank.well knew he so charged and collected said interest or exchange, that the same was unlawful, and was more than at the rate of-105-per annum and was usurious rate of interest or exchange. That this defendant charges that the plan, scheme, and device was used for the purpose of and in an effort on their part to evade and defeat the usury laws of the state of Texas.”
    An exception interposed by Morris, questioning the sufficiency of the allegations just set out to entitle Sewell to the relief he sought, on the ground that they were “indefinite and uncertain- as 'to whether the charge was interest or exchange’, and there is no law fixing the rate' of exchange,” was overruled by the court.
    The trial was to’ the court without a jury. The testimony 'showed’’ the facts with reference to th'e check's- fó be,' substantially, as alleged in the part of Sewell’s answer set out above.
    The appeal is from a judgment, so far as it is material to state it, in favor of the Dallas Bank against Morris for the amount of the two checks sued upon, less a credit of $601.82, which the court found he was entitled to, and in favor of Morris over against Sewell for the amount of said checks, less the sum of $2,157 “awarded,” it is recited, “as a recovery of usury and penalties in favor of the defendant P. J. Sewell against the defendant R. A. Morris.” The appeal is by Morris alone.
    E. A. King, of Pittsburg, and Warren & Briggs, of Gilmer, for appellant. Cockrell, Gray & McBride, of Dallas, for appellees.
   WILLSON, C. J.

(after stating the facts as above). In support of his first assignment Morris insists that the allegations in Sewell’s answer set out in the statement above and forming the basis of his cross-action were insufficient, because indefinite and uncertain, in that it did not appear therefrom whether the 1 per cent, of the face of the checks deducted by Morris when he cashed them was a charge by him of “interest” or “exchange.” The basis of the contention is the fact that the pleader designated the 1 per cent, deducted as “interest” or “exchange.” The argument seems to be that, if the 1 per cent, was retained as “exchange,” Sewell was not entitled to the relief he sought. The contention is overruled. “Interest” is defined by the statute as “the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.” Article 4973, Vernon’s Statutes. It was alleged in the pleading in question that the moneys paid to Se-well on the checks were loans, and that the sums paid and agreed to be paid by him for the use of same were in excess of what the law allowed. The facts relied upon to show the transactions to be usurious having been alleged, we think it was of no importance, it appearing from those facts that the transactions were usurious, that the pleader designated the sums deducted for use of money as “exchange.”

The court did not err when he sustained the exception to the part of Morris’ answer setting up as a reason why the Dallas Bank was not entitled to recovery against him, its failure to have the checks sued upon protested for nonpayment at the time they were presented to the Bettie Bank. It appeared that this suit was commenced before the first term of the Upshur county district court after the right of action in favor of the Dallas Bank accrued., Articles 579, 581, Vernon’s Statutes. Nor.’-did the court err when he sustained the exception to the part of said answer setting up as a defense against the recovery sought against Morris by the Dallas Bank the failure of the latter to promptly return the checks to the former when the Bettie Bank refused to pay them. Having credited the account Morris had with it with' .the amount of the checks and paid drafts of his, reducing his balance with it to $601.83, the Dallas Bank had a right as against Morris to hold the checks until it was paid the amount thereof less said $601.83.

It is next insisted that the judgment, in so far as it is in favor of Sewell against Morris for $2,457.10 on account of usury in the transactions between them, is “contrary to the law and the evidence,” in that, quoting from the brief:

“(A) There is no evidence whatever that this defendant ever loaned the said Sewell any sums of money whatever, or charged him any interest whatever. (B) The evidence shows that in all transactions between this defendant (Morris) and P. J. Sewell the defendant purchased and paid for sight drafts drawn by the said P. J. Sewell on the First State Bank of Bettie, and that the only charges he made were for exchange or discount.”

We agree that what the testimony showed was as stated, in effect, in the quotation just made from the brief, to wit, that Morris acquired the checks by discounting them; but we do not agree that the trial court therefore was not authorized to find that the transactions were usurious. “To discount” commercial paper is “to take interest in advance, and in banking is a mode of loaning money.” Weckler v. Bank, 42 Md. 581, 20 Am. Rep. 95; Black v. Bank, 96 Md. 399, 54 Atl. 88. The rule applicable to the conceded and undisputed facts is stated in 39 Cyc. p. 935, as follows:

“When the chose discounted is obtained directly from the maker or before it has acquired validity by a transfer for value, it can be nothing more than the maker’s promise to pay, and the purchase of such a promise at a discount exceeding the lawful rate of interest is merely making a loan at a usurious rate.”

By Mr. Daniel (1 Negotiable Instruments, § 753) as follows:

“If a note is offered for discount by the maker, it is plainly usurious, as between him and the party to whom it is delivered, if the- discount from its face value were greater than that allowed upon a loan.”

And by Prof. Paige (1 Contracts, § 477) as follows:

“If the vendor sell an obligation on which he is primarily liable, at such discount (that is, at a discount to exceed the maximum rate of interest), the transaction is merely one of giving an obligation for a larger sum than the debt, and is usurious if the discount exceeds the maximum rate of interest.”

There is no error in the judgment, and it is affirmed.
      ;®=»For other- cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and, indexes


author: HODGES, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. CLARK.
    (No. 1695.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 18, 1917.
    On Motion for Rehearing, Feb. 1, 1917.)
    1. Raileoads t&wkey;68 — Easements — Space Above Property.
    In acquiring easements for construction and operation of railways, a company is entitled to space above territory appropriated necessary for use of its franchise; such space being as much a part of the right of way as the ground which it covers.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 159, 160.]
    2. Telegraphs and Telephones <&wkey;ll — Construction — Crossing Railway Track.
    Telephone companies have no right to place wires over railway tracks in space necessary to railway company’s use without consent or condemnation, and, in absence of such right, must place wires 'at a reasonable elevation, considering the uses essential to railway operation.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 7.]
    3. Telegraphs and Telephones &wkey;>20(4)— Injury by Improperly Placed Wires— Ple adin g s — Issues .
    Where pleadings charged a telephone company with placing wires above a railway track at such elevation that plaintiff, a brakeman, was injured, not alleging that wires were improperly secured, but that they were wrongfully placed at such elevation as to interfere with plaintiff in the performance of his duties, and defendant pleaded no right from the railroad, the only issue was whether such wires did encroach upon railway company’s right of way.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 18.]
    4. Telegraphs and Telephones <&wkey;ll— Rights in Crossing Railway Track.
    A telephone company, when occupying its own zone above a railway track with its wires, must use its property so as not to interfere with railway company’s rights.
    [Ed. Note. — For other cades, see Telegraphs and Telephones, Cent. Dig. § 7.]
    5. Telegraphs and Telephones <&wkey;>20(5)— Crossing Railroad — Improperly Placed Wires — Injury to Brakeman — Evidence.
    The fact that a railway brakeman, walking on top of a furniture car in discharge of his duties, was struck by a telephone wire above the track, alone was evidence that the wires were within the railway zone, from which jury might infer negligence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13.]
    6. Telegraphs and Telephones <&wkey;20(5)— Improperly Placed Wires — Injury to Brakeman — Suottciency op Evidence.
    Evidence held to _ authorize a verdict for plaintiff brakeman, injured by a telephone wire improperly placed above railway track.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13.]
    7. Trial &wkey;>194(17) — Instructions—Weight op Evidence — Negligence.
    Instruction that a brakeman had the right to assume that no telephone wires crossed the track with which he could come in contact, unless he knew or ought to have known of them, and that character of work and surrounding conditions might be considered in determining contributory negligence was not objectionable as charging upon the weight of evidence, although there was no evidence tending to show contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 466.]
    8. Trial &wkey;>260(l) — Instructions—Requests Covered by Charge.
    Where whatever of merit in requested charges was covered in the general charge, refusal to give them was not error.
    TEd. Note. — For other cases, see Trial, Cent. Dig. § 651.]
    9. Evidence &wkey;>545 — Competency op Expert-Experience.
    Where two witnesses testified to oculist’s reputation as a first-class specialist, and the doctor testified that he had been an oculist for eight years, sufficient predicate was laid to admit his testimony as an expert.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2360-2362.]
    10. Evidence <&wkey;536 — Competency op Expert-Education.
    It is not always necessary to show that a doctor is a graduate from an institution of learning in order to qualify him as an expert.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347.]
    11. Evidence <&wkey;471(3) — Conclusions op Witness.
    Plaintiff’s testimony that he could not get any responsible person to be with him- during illness for less than $2 per day was not objectionable as a conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2151, 2164.]
    12. Appeal and Error <&wkey;1045(l) — Harmless Error^-Substitution op Jury Panel.
    The court had a right to direct jury panel of one week to be substituted for that of another, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5169, giving court authority to adjourn jury panel for the week to any subsequent day of the term, and where it does not appear that defendant was injured thereby, it was not error to refuse to quash the panel.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. § 4124.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by W. M. Clark against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.
    Affirmed. On motion for rehearing, findings of fact modified, but former opinion sustained.
    Brown & Hall and R. A. Sexton, all of Marshall, and Young & Stinchcomb, of Long-view, for appellant. S. P. Jones and T. P. Harte, both of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for $23,000 as damages for personal injuries. On May 4, 1915, the appellee was a brakeman in the service of the Kansas City Southern Railway Company, and was a member of a crew operating a freight train between Port Arthur, Tex., and Leesville, La. As the train passed through the town of Hartsburg, going north, and while the appellee was walking on top of the cars, going toward the front end, he came in contact with the telephone wires belonging to the appellant and received the injuries for which he sues. According to his own testimony and that of another brakeman, who witnessed the accident, the appel-lee was on a furniture car and was struck by the wire just below the nose. As a result of the collision he was thrown and rendered unconscious, and remained in that condition for some time afterward. It was shown by the evidence that some five or six years prior to that time the appellant had strung two wires across the railway track at that point. They were attached to a pole on the east side of the railway .right of way, and extended across the track a short distance to a building.

The conduct complained of is (1) that the appellant negligently placed and constructed, or permitted to be placed, a telephone line or wire across the railway tracks so low that it caught the plaintiff, on the face, knocked him down, and caused his injuries; and' (2) that the appellant negligently permitted the wire to remain across the track of the railway company, and so near the track that it caught the plaintiff in the face, knocked him down, and caused his injuries. The appellant introduced^ evidence showing that the wires were reconstructed in January preceding the date of the injury, and were placed 22% feet above the rails of the railway. The height of an ordinary box ear was shown to be from 12 to 14 feet, and that of a furniture car from 1 to 2% feet higher. The ap-pellee was over 6 feet tall, and at the time this injury occurred was walking on top of a furniture car while the train was moving at about 25 miles per hour. The testimony was somewhat conflicting as to the distance the wires were from the ground; one witness .placed them about 8 feet above the top of an ordinary box car. After the injury an examination of the wires was made, and it was found that one of them was broken and the other was considerably sagged.

The first assigned error is the refusal of the court to give a peremptory instruction in favor of the appellant. This assignment is based upon the proposition that the ■ evidence was insufficient to support a finding of negligence in either of the respects alleged in the appellee’s petition. It is contended that the appellee had the burden of proving one of the following facts: First, that the line as constructed was placed at too low an elevation to permit the free and unobstructed use .of the railway train by brakemen in the performance of their duties ; or, second, that it was permitted to remain in that condition. .In acquiring easements for the construction and operation of railways, such corporations are entitled to so much of the space above the territory appropriated as may be necessary for the use and enjoyment of. their franchises. That space is as much a part of the railway riglit of- way as the ground which it covers. The telephone coiHpanies have no: right to invade: that zone in placing wires across the tracks, without the consent .of the railway company whose property is affected, or by legal condemnation proceedings. In the' absence of a right to share this space, it was the duty of the appellant, in placing its wires across the track at the point where-the injury occurred, to put them at an elevation which would allow the unobstructed use of the railway right of way for all legitimate railway purposes. That elevation could be determined only by taking into consideration the general and probable uses essential to railway operation. 1 Joyce on Electricity, §§ 409 and 419. To arbitrarily go below that altitude would be an unlawful invasion and obstruction of the railway right of way.

The averments of the plaintiff upon which the case was tried do not charge that the wires were improperly secured in position, but that they were wrongfully placed and wrongfully permitted to remain at an elevation so low as to interfere with the appellee in the legitimate performance of his duties as a brakeman. The reply of the appellant to this accusation is a denial, and an averment that the wires were properly elevated. There was no pleading or proof that the railway company had consented that the wires might be placed at any particular elevation, or that any such right to do so had been acquired by condemnation proceedings. Since there is no attempt to justify an encroachment upon the space to which the railway company had the excliisive right, the issue of fact is narrowed to this: Was the evidence sufficient to prove that the appellant had encroached? The duty of the telephone company, when occupying its own zone above that of the railway right of way, is similar to that of a tenant of an upper story of a building. It is required to use its property so as not to unnecessarily and injuriously interfere with the right of the tenant below, and is to be held responsible for any damages which resulted from a negligent failure to so use' it. That the wires were within the railway zone at the time the injury occurred is evidenced by the fact that the appellee came in contact with them; for, had they been beyond it, there would have been no collision. That fact, standing alone, and without any accompanying circumstances tending to show that this condition was not the normal status' of the telephone lines, would support an inference that the wires were placed and maintained in that situation. Mr. Thompson in volume 6, § 7643, of his work on Negligence, says:

“The plaintiff in an action for personal injuries is not deprived of his right to. rely upon the doctrine of res ipsa loquitur by reason of ■having averred the particular act of negligence complained of, where such act is the one which the. legal inference of negligence tends to establish.”-

The jury., had a right to infer negligence from an- unauthorized invasion of the railway-right'of way. - In1 addition to this circumstance there was' other evidence tending to show that the wires had been permitted to remain at too low an elevation to allow the unobstructed operation of the cars. One of the witnesses testified that he saw the wires some time prior to the accident, and they were not more than 8 feet above an ordinary box car. If we add to the height of an ordinary box car the additional height of a furniture car, the space left was not sufficient to permit a man 6 feet tall to pass under the wires while standing erect. We conclude, therefore, that the evidence was sufficient to support the finding of the jury upon these issues of fact. 2 Joyce on Electricity, § 1088. This disposes of other assignments involving the same proposition.

The appellant objects to that portion of the court’s general charge wherein he instructs the jury that the appellee had the right to assume that there were no wires across the track with which he would come in contact, unless he knew of such wires, or in the exercise of ordinary care in the discharge of his own duties would have ascertained their presence; that in determining whether or not the plaintiff was guilty of contributory negligence the jury should take into consideration the character of the work in which he was engaged, and all the surrounding circumstances in connection with his duties. It is contended that this portion of the charge was upon the weight of the evidence in two respects: (1) In telling the jury what the appellee might assume as to the condition of the right of way; and (2) in authorizing the jury, in passing upon the issue of contributory negligence, to take into consideration the character of the work in which the appellee was engaged. This charge, of course, applies only to the issue of contributory negligence. The appellee testified that he did not know that the wires were across the track until he was struck; that the train on which he was traveling was running at the rate of about 25 miles per hour. While the court charged on contributory negligence, there was no evidence from which such negligence could be inferred. We think, however, that, even if the issue of contributory negligence had been presented, the charge referred to was not subject to the objections named.

A number of special charges *were requested and refused, some of them relating to the issue of contributory negligence, and others presenting in different forms the principal issue of negligence on the part of tie appellant. Those charges have been carefully examined, and we conclude that whatever of merit any of them possesses is included in the court’s general charge.

The principal injury of which the appellee complains is a disease of the eyes known as choroiditis. He testified that he had lost the sight of one eye entirely, and could see but little with the other. The testimony of physicians and the circumstances followihg the accident tend to show that this disease was the direct result of the injury he sustained. There was other evidence, however, to the contrary, some of which tended to show that this loss of the eyesight was due to another disease. Upon the issue of damages the appellant requested the following special charge, which was refused:

“You are instructed that, if you find from1 the evidence that the plaintiff had a disease of the eye or eyes before the date of the alleged accident, and that the accident did not injure his eyes, the defendant would not be liable for the condition of his said eyes.”

That question was, we think, fully covered by the court’s general charge.

Dr. Robert Fagan, an oculist, of Memphis, Tenn., testified in behalf of the appellee by deposition. His testimony was objected to upon the ground that it was not shown that he was an expert. The testimony of two witnesses that they had known Dr. Fagan for several years, and that he had the reputation of being a first-class eye specialist, was admitted over the objection of the appellant. Dr. Fagan himself testified that he was an oculist, and had been engaged in that profession about eight years. This, we think, was sufficient to authorize the court to admit his testimony as an expert. The objection seems to be based upon the absence of evidence that Dr. Fagan was a graduate of an institute of learning. Proof of that fact is not in every instance essential to show that the witness is an expert.

The action of the court in permitting the appellee to testify that he could not get any responsible person to be with him during his illness for less than $2 per day is complained of. The objection is based upon the proposition that this was a conclusion of the witness. The objection is untenable, and the assignment is overruled.

The objections to the charge of the court on the measure of damages are without merit.

The record shows that, before announcing “Ready for trial,” the appellant made a motion to quash the panel of jurors summoned for the week during which this trial took place. It also appears that by direction of the court the jurors drawn for one week were substituted for those of another week, and that the jurors who tried this case were taken from the panel that had been drawn for the week before. Article 5169, Vernon’s Sayles’ Statutes, confers upon the court the authority to adjourn the entire jury panel for the week to any subsequent day of the term. There is nothing in the record tending to show that the appellant was forced to take any individual juror over a personal objection, or that any injury resulted from the refusal of the court to quash the panel. The court properly overruled the motion. Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665; G., H. & S. A. Ry. Co. v. Worth, 53 Tex. Civ. App. 351, 116 S. W. 365; Freeman v. Wilson, 149 S. W. 416.

There are other assignments, complaining that the verdict was excessive, and of misconduct of the jury, all of which have been examined and carefully considered.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant has filed this motion for rehearing, and to correct certain findings of fact. It is urged that there- was no evidence to support our finding that the appellee was over 6 feet tall, or that furniture cars are from 1 to 2% feet higher than ordinary box cars. These statements in the original opinion were based upon statements made in the brief of the appellee. They were accepted as correct, in view of the fact that they were not contested in the oral argument made by counsel for appellant in the original presentation of this case. At the instance of the appellant we now modify our finding in the two respects mentioned. There was no testimony showing how tall the appellee was. The testimony quoted by the appellant in its motion shows that box cars are from 12 to 14 feet high, and that furniture cars range from 1% to 2 feet higher than ordinary box cars. This modification in the findings of fact is not regarded as sufficient to change our conclusions of law heretofore announced. Whatever may have been the height of furniture cars, or the height of the appellee, the evidence is conclusive that 'the wire was sufficiently low to come in contact with and injure him in the manner described in his petition. There is no evidence that this condition of the wire was brought about by any occurrence over which the appellant had no control.

The motion to correct findings of fact is granted, but the motion for rehearing is overruled.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes