text:
    JOHNSON v. STATE.
    No. 15542.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.
    • E. H. Davis and Wm. F. Jackson, both of sHempst.ead, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, death.

The state’s testimony showed that the appellant and one Alberta Johnson, who was the undivorced wife of one Ellis Johnson, had been living together in adultery for several years; that during this adulterous relationship the deceased, Perlie Mae Johnson, was born. The evidence showed that at the time of her death the deceased was an 18 month old child. Some time prior to the homicide Alberta Johnson had left the appellant and moved to the town of Hempstead. Some time after she had left the appellant, the appellant came to the town of Hempstead and on several occasions importuned the said Alberta Johnson to live with him, which she refused to do. A few days prior to the killing of the deceased, the evidence showed that the appellant stated to the witness Alberta Johnson, in the presence of others, that, if she did not stay with him, he would kill her and the baby both. On the night of the. homicide, appellant went to the house where Alberta Johnson and others were and an argument ensued and appellant asked Alberta Johnson to stay with him, which she refused, and appellant grabbed an ax. A witness by the name of Shelton intervened at this stage and persuaded the appellant to put the ax down and took the ax and locked it up in another room in the house. Thereafter, appellant got a razor off of the shelf, and, upon the refusal of Alberta Johnson to again agree to his request, he grabbed the said Alberta Johnson by the head and cut her on the back of the neck. She then ran and fell in the door going to the kitchen. At the time the said Alberta Johnson was cut, she was holding deceased in her arms, and, when she fell, the deceased fell out of her arms on the floor and commenced crying. She then ran out of the house and was followed out by the witness Shelton, leaving the appellant in the house. The said witness Alberta Johnson, as well as the witness Shelton, testified positively that after they got out of the house they heard the deceased crying and they left the baby in the room with the appellant. Alberta Johnson and the witness Shelton fled to a nearby house where a doctor was summoned to attend Alberta Johnson’s wounds. Upon other persons going to the house, they found the deceased in the room where she had dropped out of her mother’s arms with two deep gashes in her .throat, her head being almost severed from the body. Appellant fled and was later apprehended near Houston.

The appellant, testifying in his own behalf, denied that he intentionally struck his baby or that he knowingly inflicted upon it any wounds, and he denied positively that he cut her throat after the parties had left the house, and his explanation was that, if the child was cut, it was cut while and during the cutting of its mother.

A doctor testifying for the state testified positively that the deceased could not have cried after the wounds had been inflicted upon her throat. It was the state’s contention that, after the mother and the witness Shelton had fled from the house, the appellant then cut the throat of the child, and evidence was introduced as to the condition of the room, blood spots in the room and on the walls thereof, in an endeavor to substantiate their contention. Upon this phase of the case, the court submitted a charge on eireums'tan-tial evidence.

There are no bills of exception in the record. Several matters are urged in appellant’s motion for new trial. The first of said matters brought up in said motion for new trial was that the court refused tó sustain appellant’s motion .to disqualify a juror on the ground that the juror had formed an opinion as to the guilt of the defendant, and that, if taken as a juror, he would go into the jury box wiili bis mind made up. In the answer of the state, to said motion, it is alleged that the juror, complaint of whom is made that the court refused to disqualify, was challenged peremptorily and did not sit as a juror in the trial of the case; that the appellant had used only ten peremptory challenges when the jury was completed to try the case and still had five challenges left, and the regular venire was not exhausted when the jury was selected to try the case and there was no objectionable juror forced on the defendant.

There is no complaint urged in the motion for new trial that there was any injury resulting to the appellant by reason of the court refusing to sustain appellant’s challenge for cause as to said juror. In the absence of any injury shown appellant, the mere fact that the court refused to have the juror stand aside upon appellant’s challenge would not be groun’d for setting aside the verdict and granting a new trial. See Ames v. State, 102 Tex. Cr. R. 190, 277 S. W. 661; Squyres v. State, 92 Tex. Cr. R. 160, 242 S. W. 1024; Hall v. State (Tex. Cr. App.) 49 S.W.(2d) 798.

Another complaint made in said motion for new trial is that the trial court erred in permitting the testimony of Alberta Johnson as a witness for the state to go to the jury because it was shown that she and defendant were then living together as husband and wife and had been living as husband and wife for a number of years; that she had borne children for defendant and they held themselves out to the world as husband and wife. It is shown by the undisputed evidence in the case that the witness Alberta Johnson was not the wife of appellant, but during the whole time that she lived with appellant and was having illicit relations with him she had a living husband to whom she had been legally married and from whom she had never been divorced. Under the decisions of this court, a woman with whom a defendant is living in, adultery or who is not his legal wife is not incompetent to testify against him on that account. We quote from the case of Sims v. State, 30 Tex. App. 605, 18 S. W. 410, 411, opinion by Judge Davidson: “Lizzie Williams, the mistress of appellant, was permitted to testify for the state over his objection. It is insisted by the appellant that the intimate relations between himself and the witness was tantamount to the relation of husband and wife. This position is not well taken. The statute prohibiting husband and wife from testifying against each other does not embrace parties who are not legally married, but who are living together in adultery, nor parties who are unmarried, but who live together and recognize each other as husband and wife.” Citing Mann v. State, 44 Tex. 642, and authorities there cited. See, also, Crow v. State (Tex. Cr. App.) 72 S. W. 392; Young v. State, 49 Tex. Cr. R. 207, 92 S. W. 841, 842.

Appellant also alleged in said motion for new trial that new evidence material to appellant had been discovered since the trial of the case, which evidence before the jury would probably produce a different verdict. Said motion alleged that, after argument of counsel, defendant, who could neither read nor write, discovered letters and papers in his possession which he then gave to his attorneys for inspection, and which proved to be letters written by Alberta Johnson to defendant shortly prior to the commission of the alleged offense. The motion further alleged that appellant thought he had destroyed all letters written him by Alberta Johnson and had only kept letters written to him by his mother, and, being unable to read, did not know that he had the letters from Alberta Johnson in his pocket. The letter or letters claimed to be newly discovered ¿re not set out in said motion, but it is contended in said motion that the letters revealed the fact that the witness Alberta Johnson wrote the defendant to. come to Hempstead, and the letters also reflected the relationship of the witness Alberta Johnson and defendant by reference to their child and further revealed that they had been living together as was alleged by .defendant. In the answer filed by the state to said motion for new trial, it is set up that the letters claimed to be newly discovered evidence were never tendered in evidence, though they were discovered before the jury retired to consider their verdict, and that the appellant on the trial, testifying in his own behalf, testified that he had received letters from Alberta Johnson, and upon cross-examination swore that he had destroyed said letters, and therefore the facts alleged to be expected to be de^ yeloped by said letters did not constitute newly discovered evidence.

It is not shown in said motion for new trial what diligence, if any, was used to discover said testimony before .the trial, and the said affidavit does not negative the fact that the appellant himself knew of the existence of the supposed newly discovered testimony. There is nothing in said motion which shows that the appellant used due diligence to discover the newly discovered evidence before the conclusion of the trial, nor is there any showing or claim that said letter could not have been discovered by the use of ordinary diligence, except for the fact that the appellant could not read. The order of the court overruling the motion for new trial recites that, after having heard the motion and the evidence thereon submitted, it was the opinion of the court that the same should have been overruled.

We quote from section 192, Branch’s Ann. P. 0.: “To warrant a new trial on the ground that new testimony has been discovered since the trial it is incumbent on defendant to satisfy the court that the new testimony has come to his knowledge since the trial and that it was not known beforehand, and it must be such as reasonable diligence could not have secured at the former trial; it must be competent, material to the issue, and probably true, going to the merits and not merely cumulative or collateral nor merely to impeach a former witness; and it must appear that it is reasonably probable that it will change the result.” Citing Ferguson v. State, 66 Tex. Cr. R. 426, 147 S. W. 239; Burton v. State, 9 Tex. App. 605.

We have given this case careful consideration on all the grounds in the motion for new trial. We have come to the conclusion that they present no grounds, under the decisions of this court, for reversal of this case. We have also considered all the facts in evidence and believe that the testimony supports the verdict rendered by the jury in this case.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant in person flies a motion for rehearing, insisting that the punishment in this case was excessive and cruel. A recital of the facts is sufficiently made in the original opinion. We are not able to agree with appellant that the punishment meted out to him by the jury is in any way excessive. It is true that appellant is an ignorant, young negro man, but the cutting of the throat of an innocent child without excuse and because of excessive anger or passion directed at its mother, seems an inexcusable crime. We find nothing in the charge of the court submitting anything to the jury which was contrary to the law or which in any way could have affected or conduced to the penalty given to the appellant. We realize that the taking of human life for crime is a serious matter, but are not allowed to interfere unless for some error in procedure or failure of proof affecting the result.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: MORROW, P. J. LATTIMORE, J.

license: Public Domain

text:
    BYBEE v. STATE.
    No. 15484.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.

      Jeff A. Fowler and B. F. Reynolds, both of Throckmorton, and Otis Rogers, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is robbery; penalty assessed at death.

The subject of the robbery is Ernest Slape, whose testimony is summarized as follows: While Slape was sitting at his house, the appellant appeared with two pistols, one in each hand. He entered the door and said: “You are the guy we want; get out of here. You get out of here, or I’ll knock you in the head with one of these guns.”

When first ordered to get out, Slape hesitated. The appellant’s brother, who was with him, was also armed with and exhibited a pistol. After running a short distance, Slape was shot between the shoulders and fell. He was not positive whether the appellant or his brother fired the shot, though it was his best judgment that the appellant was the one who shot him. As Slape lay upon the ground, helpless but not unconscious, the appellant and his brother took from Slape’s pockets the money he had, which was about $104. As Slape fell, the appellant remarked: “They don’t go far when this hits them.” After taking the money, the appellant and his brother fled. They made their departure in an automobile which was standing nearby. Slape had seen the appellant before, and was positive in his recognition and identification of both the appellant and his brother.

The bullet fired by his assailant entered Slape’s back and lodged in his neck, from which it had not been extracted at the time of the trial.

When the appellant and his brother appeared, the latter commanded that the persons present get in the house, while the former commanded Slape to get outside. When asked by Slape what they wanted, the appellant replied, “We want you.”

The appellant introduced no testimony.

In the record there is presented no complaint of the manner of trial; that is to say, there are no exceptions to the rulings of the court in the reception or rejection of evidence.

In his direct examination, Slape testified that there was taken from his possession by the appellant and his associate the sum of $104; that part of the money was taken from one pocket and part from the other, the appellant and his brother acting together in taking the money. On cross-examination, the witness said he could not be sure as to the exact amount of money in his possession, but that he had $100 in his left pocket and three or four dollars in his right pocket, all of which was taken from him.

Appellant requested an instruction of acquittal upon the ground of variance based upon the discrepancy between the amount of money which Slape claimed was taken from him.

In charging the jury, the court used the following language: “ * * * Did unlawfully and willfully in and upon Ernest Slape make an assault and did then and there by said assault and violence and by then and there using and exhibiting a firearm to-wit, a pistol, fraudulently and against the will of the said Ernest Slape, take from the person and possession of Ernest Slape, $104.00 in money or any sum of money.”

The contention that there was a variance between the amount of money taken and that averred seems not supported by the evidence ; that is to say, the injured party testified that the money taken from him amounted to $104. That, at least appears to have been his best judgment, although, on cross-examination, he conceded that it might have been one or two dollars less than that amount. Nothing in the evidence would have authorized a peremptory charge to the effect that there was a variance. For that matter, it is thought that, if there were a conceded discrepancy of a dollar or so between the amount averred and that taken by the appellant, it would not be fatal to the conviction.

In the case of Harris v. State, 34 Tex. Cr. R. 497, 31 S. W. 382, the accused was convicted of robbery. The indictment described the property in general terms as $20 in paper money, currency of the United States. The proof showed that the money taken was a $10 bill and a $5 bill. The court held that there was no variance. The same principle has been reasserted in many other cases, among them Taylor v. State, 89 Tex. Cr. R. 618, 232 S. W. 525, in which numerous authorities are collated. See, also, Holland v. State (Tex. Cr. App.) 51 S.W.(2d) 340.

Exception to the charge was made because of the use of the words “or any sum of money.” No error Is perceived in the action of the court in refusing to instruct a verdict of acquittal and in refusing to amend his charge in response to the exception mentioned. •

The matters last mentioned are also brought forward in the motion for new trial, which was properly overruled.

The point made in the motion for new trial that the venue was not proved is not tenable, as it does not appear that any issue as to venue was made upon the trial. Under such circumstances, the venue is presumed. See article 847, C. C. P. 1925.

In his brief the appellant makes the following contention:

“Appellant relies solely upon the insufficiency of the evidence to support the verdict of the jury, and asks the court’s careful consideration in applying the evidence to the allegations of the indictment. ⅜ * *
“Analyzing the evidence, we find that appellant committed an assault with intent to murder. After the assault was complete and the victim was apparently dead, appellant robbed him. No fire-arm was exhibited at the time of the robbery, and there is no evidence that at the time Slape feared further violence from appellant. Under the statute, the exhibition of a fire-arm is a constituent element of the offense. * * *
“The acts of appellant make out a clear case of assault with intent to kill, and the evidence is ample to sustain a verdict of guilty. * ⅜ ⅜
“We do not believe that the conviction of appellant for the offense of robbery with firearms is justified by the facts as presented by the record in this case. Nor do we believe that the extreme penalty, death, is justified where the victim was not killed and was able to attend court and take an active interest in the trial of appellant.”

In the indictment, the applicable part which is copied above, there is no averment that the robbery was committed by putting Slape in fear of his life. Appellant cites no authorities, and we are not aware of any that would sustain his contention. The indictment for robbery is embraced in article 1408, P. 0. 1925. An averment that the person assaulted was put in fear of his life or serious bodily harm is not necessary when, as in this case, the reliance is upon violence.

Whether an act of violence embraces more than one offense is often hard to ascertain. The volition or intent with which the act is done often becomes a question of fact. This is illustrated in the opinion of this court in the case of Ex parte Jones, 83 Tex. Cr. R. 12, 200 S. W. 1085, in which many authorities are cited illustrating the point that whether the act embraces one volition or more is often difficult to determine. See, also, the case of Spannell v. State, 83 Tex. Cr. R. 418, 203 S. W. 357, 2 A. L. R. 593. Many other cases might also be cited.

In the present instance, no effort was made, by the introduction of evidence or'by requested instructions to the jury, to show that the volition or intent of the appellant was to do other than which he did; namely, to rob Slape.; If there were evidence that might lead to the conclusion that the appellant shot Slape out of malice without intent to rob him, and afterwards formed the intent to-take his property, the case would present a different aspect. If it had been shown that the appellant shot Slape without the volition to rob him, there might be two offenses; namely, one consisting of an assault to murder, the other consisting of the theft of the property of Slape. No doubt is entertained that the facts before the court warranted the prosecution for robbery. The property was fraudulently taken from the possession of Slape. It was acquired by assault and violence, both of which averments are charged in the indictment and are contained in the statute, article 1408, P. O. Likewise it is said in the statute: “ * ⅜ * ■ And when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”

Touching the suggestion that the penalty is excessive, it is to be said that, since the conviction is legal and the penalty is within the law, the severity of the penalty is not a matter within the scope of this review. See Shuffield v. State (Tex. Cr. App.) 18 S.W.(2d) 640; Brady v. State (Tex. Cr. App.) 44 S.W. (2d) 373.

We have given the record the most careful examination of which we are capable, and have taken into account the suggestions of counsel for the appellant, but are left of the opinion that it is the duty of this court to order an affirmance of the judgment, which is accordingly done.

On Motion for Rehearing.

LATTIMORE, J.

By a different attorney from those who represented him on the trial, and predicated solely upon an ex parte affidavit, appellant attempts to now raise an issue as to the legality of his trial because of the fact that the jury trying him was selected from the jury panel for the week; no special venire having been requested by either the state or appellant, and no objections having been interposed at the time of this trial to the selection of a jury from the jurors drawn for the week. Such questions cannot he raised by such affidavits. See, however, on the point Farrar v. State, 44 Tex. Cr. R. 236, 70 S. W. 209; dissenting opinion of Judge Davidson in Smith v. State, 78 Tex. Cr. R. 88, 180 S. W. 278; Gonzales v. State, 88 Tex. Cr. R. 248, 226 S. W. 405.

The motion for rehearing will be overruled.


author: CHRISTIAN, J.

text:
    SANCHEZ v. STATE.
    No. 15692.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Wright Stubbs,, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of property over the value of $50; the punishment, confinement in the penitentiary for four years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, J., not sitting.


author: CALHOUN, J.

text:
    JONES v. STATE.
    No. 15364.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    E. B. O’Quinn, of Marfa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, assault with intent to murder; the punishment, confinement in the penitentiary for five years. .

In his motion for new trial, appellant alleged that the jury, after retiring to deliberate upon' the caso, received other testimony before their verdict had been reached or agreed on, and that said evidence so obtained by the jury w.as not adduced on the witness stand against the appellant. Appellant’s bill of exception shows that the testimony complained of had not been received in evidence during the trial. The testimony heard by the court on the motion, as shown by said bill, was in substance as follows: One of the jurors mentioned in the jury room, while the jury was deliberating on their verdict, that he knew of an altercation that said defendant had had with some white men and white boys at a ball game in Marfa, Tex., some time prior to the date of the alleged offense for which this conviction was had, and the defendant was a bad and dangerous nigger. After the statement had been made, the foreman stated to said juror, “Don't make any statement,” and told the other jurors that they could not lawfully consider matters as those then being mentioned by the juror, and thereafter there was no further discussion so far as the foreman heard. The foreman of said jury further testified that such discussion did not affect him in arriving at his verdict, but that he could not swear that such discussion did not influence or affect the other jurors in arriving at their verdict and he could not swear that such discussion did not cause any of the jurors who had previously voted for a lower term of years to thereafter vote for the five years assessed against the defendant in this case; that the statement so made by said juror was made after defendant’s guilt had been voted on but before said jury had arrived at their verdict as to the number of years to be given said defendant as punishment. The bill further shows that the court heard the testimony of the foreman and five other jurors as to such matters ; that the testimony of the other five jurors relative the said matter was almost word for word the same as the testimony of the said foreman.

We are of the opinion that the learned trial judge fell into error in refusing to grant appellant’s motion for new trial. Subdivision 7 of article 753, O'. O. P., provides that a new trial shall be granted in cases of felony where the jury, after having retired to deliberate upon a case, have received other testimony. Information given by one of the jurors to the others is new and other testimony within the meaning of the statute. McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Hanks v. State, 99 Tex. Cr. R. 218, 209 S. W. 106. Appellant’s bill of exception showed that the statements made by the jurors concerning appellant’s action and reputation had not been received in evidence during the trial of the case, and they were made at a time when the jury had not decided the question as to the number of years that would be assessed against appellant. The statute is mandatory so far as it relates to other testimony, and this ground for new trial is oh a different basis and under a different subdivision of the statute from misconduct. When the unsworn “other testimony” is received by the jury, the court will not speculate as to probable injury when it is against the accused. Branch’s Ann. P. C. § 566, and authorities cited thereunder. See Knight v. State, 66 Tex. Cr. R. 335, 147 S. W. 268; Blocker v. State (Tex. Cr. App.) 61 S. W. 391.

Appellant also complains in his motion for new trial of the jury having decided the case by lot. As the case must be reversed for the error above pointed out, we deem it unnecessary to consider said bill in detail, as the matter therein complained of is not likely to occur on another trial of the case.

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

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, J.', not sitting.


author: WALKER, C. J.

text:
    BENN et al. v. SECURITY REALTY & DEVELOPMENT CO. et al.
    No. 2263.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 10, 1932.
    Rehearing Denied Nov. 16, 1932.

      Kitching & Kenna, of Beaumont, for appellants.
    D. E. O’Fiel, O. M. Lord, and W. R. Blain, all of Beaumont, for appellees.
   WALKER, C. J.

On December 13, 1913, W. B. Cooper and his wife, Sabra, were divorced. As a part of the divorce decree the following property, owned by them on that date, was adjudged to be community property, belonging to them equally, to wit: “A part of the David Brown League and a part of the Mary Anderson one and a half acre tract lying east and adjoining the Herring Addition to the City of Beaumont, Texas, described by metes and bounds as follows: Beginning at the Northwest comer of the .Mary Anderson one and a half acre tract thence east with said Mary Anderson north line one hundred feet for corner; thence south at right angles with said Mary Anderson north line 100 feet for corner; thence North on said Mary Anderson west line to her north west corner the same being the place of beginning and being a lot 60 by 100 feet out of the Northwest corner of the Mary Anderson 1 ½ acre homestead tract.” On the date of the decree, this lot was vacant, unimproved property. The divorce judgment was not filed and recorded in the county clerk’s office of Jefferson county until February 29, 1922. After the entry of the divorce decree, Sabra Cooper married Jim Benn.

On June 26, 1917, W. B. Cooper sold and conveyed by warranty deed the entire lot to Dr. F. W. Hander. On August 3, 1917, Dr. Hander filed suit in trespass to try title in the district court of Jefferson county against Sabra Benn and her husband, Jim Benn, to recover title and possession of the Cooper lot. No lis pendens notice of that suit was recorded in the county clerk’s office of Jefferson county. On the 17th of April, 1918, judgment of nonsuit was entered in that case. Un the 17th of September, 1917, during the pendency of that suit, Dr. Hander, for the recited consideration of $177, sold and conveyed by warranty deed the Cooper lot to R. C. Divers. One W. O. Crow was interested with Dr. Hander in this purchase, but his name did not appear in the deed to Dr. Hander. After the purchase by Dr. Hander, he and Crow began the erection of improvements upon the property, but before the improvements were completed the sale to R. C. Divers was consummated. On the 20th day of December, 1917, W.' O. Crow and wife also executed a deed to R. O. Divers on the recited consideration of $10 and other good and valuable consideration. On the 15th of November, 1917, R. C. Divers, having completed the improvements, entered into a written contract with W. B. Cooper to sell the property back to him for $1,273.30, to be paid as follows: $20 in cash, and the balance in eighty-three monthly installments of $15.10 each, with interest at the rate of 10 percent. per annum from maturity. Both the contract and the notes reserved the vendor’s lien. The contract provided further that, upon the payment of the first forty notes, Divers would execute a warranty ...deed to Cooper, and that the failure to pay any of said notes when due or to perform any of the other conditions would forfeit, terminate, and abrogate the contract, and that Cooper would immediately deliver possession of the premises bach to Divers, and that all payments theretofore made by Cooper to Divers would be forfeited to Divers to be held and retained- by him as rent. On January 15, 1920, Divers conveyed the lot, with sixty unpaid notes, to Violet G. O’Fiel, who, by the terms of her deed, was to carry out the agreement between Divers and Cooper and was subrogated to all the rights, equities, and choses in action in favor of Divers against Cooper.

On the 23d day of April, 1925, claiming* to own the notes given by Cooper to Divers, the Security Realty & Development Company, a corporation, filed suit against Cooper for the unpaid balance of these notes and to foreclose the vendor’s lien reserved for their payment. Cooper died on the 16th of May, 1925, and soon after his death Security Realty & Development Company took possession of the property, claiming title thereto under the forfeiture clause in the contract between Divers and Cooper, repaired and rented it to certain tenants, and through its tenants was in continuous possession from the date it took possession until this case was tried. On the 30th day of November, 1925, Violet G. O’Fiel, joined by her husband, David E. O’Fiel, conveyed the property to Security Realty & Development Company, in which they owned practically all the corporate stock. The Security Realty & Development Company filed an amended petition in its .suit against W. B. Cooper, making him and his heirs and certain other persons and their unknown heirs defendants and including other tracts of land in addition to the Cooper lot. The amended petition changed the cause ■of action from a foreclosure suit to an action in trespass to try title. Service was had thereon only by publication. None of the defendants answered. An attorney was •duly appointed to represent them, and judgment was rendered on January 29, 1927, in favor of the plaintiff Security Realty & Development Company for all the land sued :for.

On July 2, 1925, Sabra Benn, as a feme .solo, filed suit against R. C. Divers, F. W. Hander, Security . Realty & Development Company, and the heirs of W. B. Cooper (Willie Hebert and her husband King Hebert, Terry Cooper, and Gladys Cooper Brocking-ton) in' trespass to try title to recover the .title and possession of the Cooper lot, claiming to own a one-half undivided interest 4 herein under her divorce decree against W. B. Cooper. She pleaded the execution of the deed by Cooper to Hander and all the deeds and contracts under Hander and his grantees, as set out above, and prayed for their cancellation. On May 7, 1929, an amended petition was filed in that suit, making Mr. and Mrs. O’Fiel parties. They filed their answer on the 19th of September, 1929. In October, 1927, Sabra Benn, joined by Gladys Cooper Brockington and her husband and Lee Vernon Wilson and Terry Wilson, minors, suing by Sabra Benn as next friend, filed a second suit against Mr. and Mrs. O’Fiel and the Security Realty & Development Company.

The two suits filed by Sabra Benn were consolidated, and the plaintiffs filed their first amended original petition therein on the 21st of March, 1930, on which this case was tried, pleading that Sabra Benn was the divorced wife of W. B. Cooper; that Gladys Cooper Brockington, Terry Cooper, and Willie Hebert were the children of that marriage; that Sabra Benn had purchased the interest of Willie Hebert and Terry Cooper in said property which, added to her community interest, gave her an undivided six-eighths interest; that Gladys Cooper Brockington owned an undivided one-eighth interest and Lee Vernon Wilson and Terry Wilson, minors, together owned the other one-eighth interest; the judgment above described, as having been entered upon citation by publication, and all conveyances under W. B. Cooper and his grantees, direct and remote, were attacked by pertinent allegations with a prayer for cancellation and for the cancellation of the vendor’s lien notes reserved in the Divers-Cooper contract. On the 27th of October, 1931, the defendants answered the consolidated suit by general and special demurrers, general denial, pleas of not guilty, and the two, three, five, and ten years statutes of limitations, and that they acquired their title under W. B. Cooper in good faith without notice of the claim of plaintiffs. They also pleaded improvements in good faith and other defenses not necessary to mention. Plaintiffs replied by -a supplemental petition, pleading limitation against the superior title reserved in the Divers-Cooper contract and all the Divers-Cooper vendor’s lien notes, claimed by Security Realty & Development Company, except note No. 83, and tendered payment of that note, but made no tender of payment of the other unpaid vendor’s lien notes. Against this pleading defendants answered that they were the owners of the legal title to the property in controversy. In reply to this answer plaintiffs made no tender of any kind to defendants, except the payment of note No. 83, as stated above, nor did they plead any equities against the right of the defendants to declare the forfeiture and to ifepossess the property.

The jury found facts avoiding the judgment above described as having been rendered on citation by publication. The jury also found against the plea of ten years’ limitation, pleaded by defendants, which was the only limitation issue submitted to the jury. The rental value of the property was fixed at $12 per month. Answering defendants’ special issue No. 1, it was found that W. O. Orow, at the time he acquired his interest in this property, had actual notice of the claim of Sabra Benn in and to said property. Answering plaintiffs’ special issue No. 2, it was further found that W. O. Crow could not have discovered, by the use of reasonable diligence, that Sabra Benn was asserting a claim to the property. No issue was submitted as to whether or not Dr. Hander and Mr. and Mrs. O’Fiel and the Security Realty & Development Company were innocent purchasers. Prom the evidence it appeared beyond controversy that they paid value for the property when it was conveyed to them respectively, but that they knew of the claim of Sabra Benn when they purchased it. The issue of innocent purchaser, as to R. C. Divers, was not submitted, though requested by defendants. Under the verdict of the jury, judgment was entered in favor of defendant Security Realty' & Development Company against plaintiffs for the title and possession of the property and that the other defendants go hence without day. Prom that judgment plaintiffs have duly prosecuted their appeal to this court.

Opinion.

Under the view we take of the facts of this case, the validity of the judgment rendered upon citation by publication as described above, the conflict between the specially requested issues Nos. 1 and 2 as given above, and the fact that Dr. Hander, Mr. and Mrs. O’Piel, and appellee Security Realty & Development Company bought with notice of Sabra Benn’s claim, do not control the judgment and will not be further discussed.

Appellee Security Realty & Development Company holds the title to the W. B. Cooper interest in the property under a regular chain of transfers. This conclusion follows from the undisputed facts. Divers held Cooper’s one-half interest in the property under the Hander and Crow deeds. On this title, he entered into his contract of sale with Cooper to sell the property back to- him, reserving vendor’s lien notes to secure the purchase price, and reserving the right to declare a forfeiture of the sale and to take possession from Cooper in the event default was made in the payment of the notes. The notes, with title to the property, were conveyed by Divers to Mrs. O’Fiel and by her to appellee Security Realty & Development Company. O.wning these notes and title, appellee declared the forfeiture, seized the property and went into possession thereof, and has been continuously in possession from that time. This act by appellee invested it with the legal title and as appellants pleaded no equities against this act of forfeiture and possession, that is, made no tender of the unpaid purchase price, the title in ap-pellee was absolute.

Appellants’ only answer to this conclusion is their proposition that the superior legal title claimed by appellee and also all the Divers-Cooper vendor’s lien notes, except the one for which payment was tendered, were barred by limitation at the time the forfeiture was declared and possession taken by appellee. Whether or not the notes, lien, and superior title were barred by limitation we do not decide because on the record as a whole it is immaterial. Articles 569-1, 5695, Vernon’s Sayles’ Ann. Civ. St. 1914. The facts of this case bring it under the provisions of these articles of the statute prior to the 1925 codification. This was not a suit by appellee to recover the title and possession of the Cooper lot by virtue of the superior title conveyed to it by Divers and Mrs. O’Fiel, but was purely a defensive claim against appellant’s action in trespass to try title. It is the holding of our Supreme Court, construing these articles of the statute, that they do not affect the rights of the vendor, as holder of the superior legal title, but only bar his right of action thereon when affirmatively asserted by him in the courts. The point of distinction is that appellants, and not appellees, were plaintiffs. Where the vendor rescinded, though the notes were barred by limitation, under the articles cited above, at the time of rescission, and entered possession, his vendee could recover only by tendering payment of the unpaid purchase money notes. Bunn v. City of Laredo (Tex. Com. App.) 245 S. W. 426. That case holds directly that a defensive claim under the superior title, such as appellee asserted in this case, does not fall within the bar of these statutes. See, also, Barker v. Temple Lumber Co. (Tex. Sup.) 37 S.W.(2d) 721; Cocke v. Church (Tex. Civ. App.) 23 S.W.(2d) 743, 745; Guevara v. Guevara (Tex. Com. App.) 280 S. W. 736; Testan v. Brannin (Tex. Civ. App.) 261 .S. W. 788; Pecos Merc. Co. v. McKnight (Tex. Civ. App.) 256 S. W. 933.

Appellee would sustain its judgment- for the Sabra Benn one-half interest ■ on two grounds: First, it says,' under the undisputed evidence, it is entitled to judgment on its plea of ten years’ limitation, notwithstanding the verdict of the jury. This contention is • denied. The jury’s verdict on this issue had some support in the evidence; besides, the verdict was a bar to judgment on the issue of limitation, and was not set aside.

The second contention is that the evidence raised the issue and supported it, as a matter of law, that Divers was an innocent purchaser of the Sabra Benn interest, thereby acquiring her title, and, as owner of her interest, he had conveyed it to Mrs. O’Fiel and she to appellee. In discussing this issue appellants do not controvert the proposition, announced in Hill v. Moore, 62 Tex. 610, that, where the property is in the name of the husband alone, a purchaser under him, who has paid value, without actual notice of the wife’s interest, will be protected against her claim or that of her heirs; and that the burden is on her or her heirs to show that the purchaser took with notice. Their proposition, as we understand their argument, is that the divorce decree vesting Sabra Benn with an undivided one-half interest in the property converted her equitable title into a legal title ; and to be an innocent purchaser of her legal title, the burden rested upon appellee to show that Divers bought without notice and for value. (Jiving this proposition full effect, we believe appellee, as a matter of law, sustained its contention that Divers was an innocent purchaser. Holding Divers’ title, acquired by him as an innocent purchaser under Hander and Orow, judgment was properly rendered in appellee’s favor, though it knew of Sabra Benn’s interest at the time it purchased the property through Divers and Mrs. O’Fiel.

The following statement sustains our conclusion that Divers was an innocent purchaser of the Sabra Benn title: He was dead when this case was tried, so neither party had the benefit of his testimony. Divers’ deed recited a cash consideration and two witnesses swore that it was paid by him. Though both these witnesses were interested in this lawsuit, there was no controverting testimony and there is nothing in the record to detract from their credibility, so far as their testimony related to the issue of payment. Therefore, it was the duty of the court to accept their testimony as true. San Jacinto Rice Co. v. Ulrich (Tes. Civ. App.) 214 S. W. 777. No one testified that Divers had actual notice. Appellant Sabra Benn testified that he told her in the courtroom, on the day that the Hander suit against her was dismissed, that he did not know of her claim when he bought from Hander. On this statement the court correctly refused to send to the jury the issue of actual notice by Divers. Chaison v. Stark (Tex. Civ. App.) 29 S.W.(2d) 500. The fact that the divorce decree, vesting Sabra Benn with a one-half interest in the property, was of record in the minutes of the district court of Jefferson county, did not visit Divers with constructive notice of its contents. In order to have the effect of constructive notice under article 6638, R. S. 1925, it was necessary that the decree be recorded in the proper records in the office of the county clerk of Jefferson county. Russell v. Farquhar, 55 Tex. 360. Nor did the pendency of the suit of Hander against Sabra Benn, which was on the docket at the time Divers purchased from Hander, give him constructive notice of the Sabra Benn interest. In the absence of the lis pendens statutes (articles 6640-6642, R. S. 1925), the pendency of that suit would have operated as notice to Divers, but the common-law rule on this issue was abrogated by these articles of the statute, and under them' the mere pendency of the suit was ineffectual to charge him with notice of Sabra "Benn’s interest. Kuehn v. Kuehn (Tex. Com. App.) 242 S. W. 719; Burke-Simmons Co. v. Konz (Tex. Civ. App.) 178 S. W. 587; Pope v. Beauchamp, 110 Tex. 271, 219 S. W. 447; City National Bank of Corpus Christi v. Craig, 113 Tex. 375, 257 S. W. 210; Jiles v. Citizens’ Nat’l Bank of Tyler (Tex. Civ. App.) 257 S. W. 945. It follows that no issue of constructive notice was raised against Divers. Therefore, having neither actual nor constructive notice, he was an innocent purchaser of the Sabra Benn title and, as such, conveyed the superior title to Mrs. O’Fiel who, in turn, conveyed it to appellee.

More than twenty days before the trial of this case in the lower court, appellants demanded of appellee that it file an abstract of its title to the property in controversy in the trial court, as provided by articles 7376, 7377, R. S. 1925. Appellee did not file the abstract with the clerk of the trial court but, within twenty days after service of notice, furnished appellants’ counsel with a copy of its abstract, which was prepared in strict compliance with the articles of the statute just cited. In accepting the abstract from appellee’s messenger and receipting therefor, counsel for appellants stated that they “were not waiving any legal right” in receiving the copy of the abstract-. We agree with the trial court that these facts constituted a substantial compliance with the cited articles and that appel-lee’s chain of title was admissible in evidence. As stated above, appellants specially pleaded appellee’s chain of title and offered the same in evidence “for the purpose of showing the adverse claim of the defendants.” Where the plaintiff specially pleads his title and the chain of title under which defendant holds, and prays for cancellation of the defendant’s chain of title, articles 7376 and 7377 have no application.

For the reasons stated, the judgment of the lower court is in all things affirmed.


author: BAUGH, J.

text:
    SMALL et al. v. TAYLOR et al.
    No. 7722.
    Court of Civil Appeals of Texas. Austin.
    Oct. 5, 1932.
    Rehearing Denied Oct. 19, 1932.
    Baker & Baker and Critz & Woodward, all of Coleman, for appellants Mrs. Lillie Small, Virginia Marie Newsom, Vivian Taylor, Prank W. Taylor, and Mrs. Elfreda Pirtle.
    Callaway & Callaway, of Brownwood, for appellant Mrs. Luta Witten.
    Marcus Weatherred, of Coleman, for -ap-pellee.
   BAUGH, J.

This appeal is from a judgment of the district court, entered herein after an appeal from the county court, admitting to probate the will of Mrs. Virginnie Taylor, deceased, executed on August 25, 1928. Probate of the will was contested by Mrs. Lillie Small, a daughter, and by five grandchildren of the deceased. The contestees were Fred Taylor, a son of deceased, and independent executor of the will; and his two sons and a daughter, who, with their father, were the principal beneficiaries named in the will. The grounds of the contest were, first, that Mrs. Virginnie Taylor was of unsound mind when she executed the will; and, second, that said will was the product of undue influence over the testatrix by Fred Taylor, his wife, Mrs. Fred Taylor, and his daughter, Rita Mae McMath. The case was tried to a jury upon special issues, who found against the contestants on both grounds of the contest; and said will was admitted to probate. From this judgment the contestants have appealed.

The first contentions made by appellants are that the finding of the jury that testatrix was of sound mind at the time she executed the will was without legal evidence fo support it, and that such finding was con-: trary to the great weight and preponderance of the evidence. We do not sustain either of these contentions. No useful purpose would be served by setting out or summarizing the evidence here. The statement of facts contains 475 typewritten pages. Appellants rely largely on the testimony of testatrix herself. It appears that in June, 1928, Mrs. Virginnie Taylor, then about 80 years of age, executed and delivered to her son, Fred Taylor, and to Fred’s three named children, separate deeds conveying to them, effective upon her death, a considerable portion of her estate. In July of that year Mrs. Eillie Small, her daughter, as next friend for Mrs. Taylor, sought to cancel all of said deeds on the ground that Mrs. Taylor was of unsound mind when she executed the deeds. That suit was tried four times prior to the death of Mrs. Taylor, at each of which trials she testified at length. After the first trial on August 22, 1928, Mrs. Taylor executed the will in question, which ih effect carried out the provisions of the deeds attacked. Thereafter three other trials were had, and it appears .that only the Grim Reaper ended that suit. The unusual situation is therefore presented of voluminous testimony of the testatrix herself on the issue of her own sanity. In addition, numerous witnesses well acquainted with testatrix testified on that issue, some thirty of whom, both lay and professional, testified that .in their opinion her mind was sound at the time. As stated, it would be valueless to the jurisprudence of the state to repeat or attempt to summarize the testimony here. Suffice it to say that in our opinion the evidence clearly raised a factual issue as to the soundness of Mrs. Taylor’s mind, and so became a jury question, and was by the jury resolved against the appellants.

Appellants make the same contentions on the issue of undue influence over testatrix by Fred Taylor, Mrs. Fred Taylor, and their daughter, Mrs. Rita Mae McMath. The evidence did show that Mrs. Taylor had the utmost confidence in her son Fred Taylor, who had, during her declining years, looked after her business for her; and that his wife and, daughter had helped to care for her. It also-showed that she had, prior to the date of the deeds in question, made bountiful gifts from her estate to the contestants themselves— some of them much larger than those made to-Fred and his children. But her attitude towards Fred and his children was but the natural result of gratitude and maternal impulses, and do not afford in themselves any evidence of undue influence in the execution of the will. The evidence strongly indicates that the will was, in large measure at least, the result of appellants’ efforts to have her conveyances to Fred and his children set aside on the ground of her mental incapacity.. There was little, if any, evidence even tending to show undue influence over testatrix at the very time she executed said will, or that any such influence was exercised in the testamentary act, the time and act to which the inquiry must be confined. It is not enough to show that the testatrix was under the influence of another in the management and control of her business generally. Trezevant v. Rains (Tex. Sup.) 19 S. W. 567; Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S. W. 98; Fox v. Bierman (Tex. Civ. App.) 257 S. W. 969; Idar v. Uehlinger (Tex. Civ. App.) 49 S.W.(2d) 998.

Appellants’ next contention relates to-misconduct of the jury. This contention must be sustained. The contestants introduced as-an expert witness on mental diseases a Dr. P. C. Anders, who testified that in his opinion Mrs. Taylor was of unsound mind when-she executed the will. On the first ballot seven jurors voted that she was of sound mind at the time and five that she was not. Two jurors testified on motion for rehearing without contradiction that, after the first ballot, juror A. IV. Crye stated in the jury room that Dr. Anders, who was the principal witness for appellants, other than the contestants, themselves, was a “dope fiend and stood in-with the bootleggers,” and in substance that he would write whisky prescriptions for any one for a dollar, and that he was unreliable. There was no testimony to that effect. After this statement in the jury room, all of the-five changed their votes, and the two jurors who testified stated that this statement of' juror Crye influenced them in changing their vote on the vital issue in the case. One of the jurors testified that he relied chiefly on the testimony of the doctors, but that, after the statement of juror Crye, he discarded the testimony of Dr. Anders and- changed his-vote. Neither of .these two jurors knew Dr.. Anders. Neither of them testified that they would not have changed their votes had not juror Crye made the statements with reference to Dr. Anders, but both of them did testify that such statements influenced them in-so changing their votes.

While such statements of Juror Orye related to the credibility of the witness, rather than directly to the factual issue to he found by the jury, the result operated directly upon the issue of sanity itself. The remarks of such juror were highly improper and prejudicial in character. Virginia Fire & Marine Ins. Co. v. St. Louis S. W. Ry. Co. (Tex. Civ. App.) 173 S. W. 487. The aim and purpose of the Constitution and the statutes is to guarantee a litigant an impartial and untrammeled verdict of the jury based upon legal evidence. And any improper communication, whether it relates directly to the issue to be answered or not, which prevents that impartial verdict, contravenes the spirit as well as the letter of the law. That it influenced at least two of the jurors to the prejudice and injury of the appellants in this case is reflected by the uncontradicted testimony of the jurors themselves. Even where there is a reasonable doubt whether such misconduct injured the appellant, and the jurors themselves testify that it did not, the Supreme Court has uniformly reversed such cases, and held that the trial court abused his discretion in refusing to grant a new trial where such misconduct has been shown. See article 2234, Vernon’s Ann. Civ. Stats. 1925, and numerous annotations; T. & P. Ry. Co. v. Van Zandt (Tex. Com. App.) 44 S.W. (2d) 950; Casstevens v. T. & P. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89 ; and cases there reviewed; H. & T. C. R. Co. v. Gray, 105 Tex. 42, 43, 143 S. W. 606. The improper conduct of the juror obviously in this case affected the verdict on the material issue in the case.

In propositions 4 to 7, appellants assert error of the trial court in refusing to submit to the jury separate inquiries as to whether Mrs. Taylor had sufficient mental capacity at the time; (a) To know and understand the proper objects of her bounty; (b) to understand the nature of the business she was engaged in; (c) to know the persons dependent upon her bounty; and (d) the general nature and extent of her property.

After giving a general instruction defining the term “sound mind,” which instruction is not complained of, the trial court submitted the, single issue, “Was Mrs. Virginnie Taylor of sound mind at the time of executing said will, in August, 1928?” This was the ultimate fact to be determined by the jury and a proper method of its submission. The requested instructions of appellants are but elements relating to that issue and circumstances to be considered by the jury under proper instructions from the court in answering that one issue. This issue was submitted in accordance with the holdings of the Supreme Court in Prather v. McClelland, 76 Tex. 574, 13 S. W. 543, and Bodgers v. Fleming (Tex. Com. App.) 3 S.W. (2d) 77.

Nor is there any merit in appellants’ •contention that separate issues should have been submitted inquiring whether Mrs. Taylor was unduly influenced to execute said will by Fred Taylor, or by Mrs. Fred Taylor. The issue as submitted was whether she was so influenced by Fred Taylor, Mrs. Fred Taylor, or Bita Mae McMath, or either or all of them, in making said will. We find no evidence as to such influence by Mrs. Taylor or Bita Mae McMath, and it may be doubted if there was any competent evidence as to such influence by Fred Taylor upon the testamentary act. In any event, the inquiry was comprehensive enough to elicit a competent finding on that issue in the form submitted, and no harm could-have resulted to appellants.

Appellants in seven propositions attack the qualifications of as many lay witnesses to testify as to the soundness of Mrs. Taylor’s mind, based upon their observation of her conduct, conversatioii, and demeanor. It is not necessary to discuss each of these separately. The witnesses testified that they had known Mrs. Taylor more- or less intimately for periods of time varying from 3 to 40 years, and had had occasion to observe her conduct, conversation, and demeanor. The witness who had known her but 3 years lived next door to her and saw and conversed with her frequently. It is now well settled that such witnesses, though nonexpert, may testify as to the sanity of a testatrix at the time she made her will, where they have had sufficient opportunity to observe her demeanor, conduct, and mental condition, and that a determination of that matter is left largely to the discretion of the trial court. Thornton v. McBeynolds (Tex. Civ. App.) 156 S. W. 1144 (writ ref.); 22 C. J. 605, 609; Doyle v. Schafer, 228 Ky. 83, 14 S.W.(2d) 413; M. P. Ry. Co. v. Baldwin (Tex. Civ. App.) 261 S. W. 418, 419. But such testimony should, of course, relate to the time of the act in question. We find no abuse of the discretion of the trial court as to the witnesses complained of.

The only remaining question relates to the refusal of the trial court to give the instruction requested by appellants that the jury should consider, in determining the sanity of Mrs. Taylor, whether she was laboring under the influence of an insane delusion, defined in the instruction, affecting the disposition of her property. This requested instruction was obviously based upon the holding of the Supreme Court in Bodgers v. Fleming, 3 S.W.(2d) 77. We think this instruction should have been given. There was evidence in the record tending to indicate that Mrs. Taylor did not understand the nature and purpose of the suit brought by Mrs. Billie Small to cancel the deeds to Fred Taylor and his children; and that she thought Mrs. Small was seeking to take all of her property away from her and put her upon the county for support. In the light of her own testimony and' that of Dr. Anders, we think the trial court should have given the instruction requested.

For the reasons stated, the judgment of the trial court is reversed, and the cause remanded for another trial.

Reversed and remanded.


author: HIGGINS, J.

text:
    OLIVAS et ux. v. EL PASO ELECTRIC CO.
    No. 2725.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 13, 1932.
    Rehearing Denied Nov. 10, 1932.
    J. A. Gillett, S. P. Weisiger, and W. O. Hamilton, all of El Paso, for appellants.
    Brown & Brooke, of El Paso, for appellee.
   HIGGINS, J.

The opinion upon the former appeal in this case is reported in (Tex. Civ. App.) 38 S.W. (2d) 165, to which reference is made for statement of the allegations of the petition.

By reference thereto it will be seen the action is to recover damages for an alleged nuisance and for the death of plaintiff’s son under the death by wrongful act statute.

The branch electric line upon the premises described in the petition was erected by ap-pellee in May, 1926, by permission of J. G. Melton, the owner of the premises. The premises were under lease to W. D. Malone. Plaintiffs and their son were subtenants under Malone. The main high-power transmission line of appellee was on the highway about one-fourth mile from the residence occupied by plaintiffs and their son. In the branch line leading to the residence there was a transformer. This .transformer “stepped down” the high-tension power, with which the branch line was charged from the transformer back to the main line. The transformer was upon the top of a pole about 100 yards from the residence. From the transformer a “ground wire” or “ground rod” ran down the post. A few inches above the ground it was attached to a metal stake driven into the ground. The ground wire and stake, for a few inches above the ground, were bare and uninsulated. The transformer post and ground wire were close to a fence built of barbed wire and wire netting. The fence ran along an irrigation ditch, the banks of which were wet and moist. On May 16, 1929, the deceased came in contact with an electric current at or near the transformer post. He was severely burned and shocked, in consequence of which he died shortly thereafter.

Defendant answered by general denial and special pleas to the effect that the electric line upon the premises was placed there at request of the owner, Melton, in May, 1926; that same was constructed in the customary way with the best and safest appliances, etc.; and: “(12) Defendant further says that the deceased did not come to his injuries in the way and manner alleged by the plaintiffs, but that in some way or manner he became entangled in or was handling a ■quantity of small baling wire some distance from the post where the defendant’s transformer was located and that said baling wire had either been thrown over the defendant’s primary leads, some distance from the transformer post, by the deceased or by some other party to this defendant unknown, thus forming a contact with the ground; that if the deceased threw said wire over the primary lead', as hereinbefore alleged, he was guilty of negligence or contributory negligence, proximately causing or contributing to cause his injuries; that if it was done by some other party, this defendant was not advised thereof and that, in any event, this defendant was not guilty of any act of negligence.”

The ease was submitted upon the general issue, resulting in verdict and judgment for defendant.

The issues were submitted in the main ■charge as follows:

“1. If you find from a preponderance of the evidence that, on or about the time complained of by the plaintiffs, the deceased, Jose Olivas, came in contact with a fence, and that at the time such fence was charged with electric current escaping or flowing down the ground wire or ground rod of defendant’s transformer post nearest plaintiff’s house, and that defendant was negligent in permitting such current to escape or flow down such ground wire or ground rod, and that such negligence, if any, was a proximate cause of the burning and death of the deceased, Jose Olivas, and if you further find that the plaintiffs have suffered financial loss by reason of the death of their son, you will find for the plaintiffs.
“2. Unless you find from a preponderance ■of the evidence that electric current flowed or escaped down the ground wire or rod as alleged by plaintiffs and that the deceased, Jose Olivas, was burned by reason of electric current flowing or escaping down the ground wire or ground rod, and that defendant was negligent in allowing or permitting such electric current to flow or escape down such ground wire or ground rod, you will find for the defendant.
“3. If you find that the deceased himself threw a wire or wires over the primary leads of the defendant, and that he was negligent in so doing and that his own negligence was a proximate cause of his injuries, you will find for the defendant.
“4. If you find that the deceased’s injuries were due to an unavoidable accident, you will find for the defendant.”

At request of defendant special charges were given, which, very briefly stated, are to the effect:

1.- The mere operation and maintenance of the line by defendant would not render it liable unless it was guilty of some act of negligence alleged by plaintiffs. ■
2. To find for defendant unless the jury believed deceased came to his death by the negligence of defendant without any negligence upon his part contributing to his death.
3. To find for defendant if deceased was injured by coming in contact with baling or other stray wire which had accidentally come in contact with the line or had been thrown over the line by other parties.
4 and 5. To find for defendant if deceased became entangled in baling wire some distance from the transformer post, which wire had come in contact with the high transmission line in some unknown way, or through some action of deceased.
6. To find for defendant unless the jury believed deceased was injured by coming in contact with a fence charged with electric current escaping or flowing down the ground wire and defendant was negligent in permitting such current to escape or flow down such wire.

It will be observed the court submitted only the right to recover for the death of plaintiff’s son. No error is assigned to the failure to submit any issue as to recovery of damages for the discomfort, annoyance, etc., alleged to have been sustained upon the theory of a nuisance.

Various assignments complain of the overruling of exceptions to the answer. They are predicated upon the theory that the branch transmission line upon the premises was a dangerous agency; as such it constituted a private nuisance, and if deceased was injured by such nuisance and died as a result of his injury, the issues of negligence on the part of defendant and contributory negligence on the part of the deceased are unimportant.

The theory was carefully considered upon the former appeal and disposed of as follows:

“As against the general demurrer, the petition stated a cause of action for damages for the maintenance of a private nuisance ■as well as for damages for the death of plaintiffs’ son under the death by wrongful act statute. Article 4671, R. S.
“The allegations show a condition created by the acts of defendant which disturbs plaintiffs in the peaceable possession and occupancy of their homes, causing constant dread and apprehension, a condition which in fact is dangerous and has already caused the death of one member of the family. A condition of this kind is plainly a nuisance (City of Dallas v. Early [Tex. Civ. App.] 281 S. W. 883 ; 20 R. C. L. 380], and for the resulting damages the defendant is liable. * * *
“Upon this phase of the case the issue of negligence is immaterial (46 C. J. 663; 20 R. C. L. p. 381, § 3), though as a matter of fact, as later shown, the petition Shows that the nuisance complained of is the consequence of the defendant’s negligence.
“We pass now to consideration of the petition as stating a cause of action for the death of plaintiff’s son.
“The generation, transmission, and distribution of electricity is a practical necessity. The business of generating, transmitting, and distributing the same is authorized and lawful. High-voltage currents of electricity are very dangerous agencies, but, by the exercise of the proper degree of care in the transmission and distribution of the current, its dangerous character is practically eliminated. Eailure to exercise such care is, of course, negligence. The petition does not in terms allege negligence, but upon general demurrer all reasonable intend-ments are indulged in favor of its sufficiency, and the reasonable inference from the facts alleged in the tenth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, nineteenth, twentieth, twenty-first, and twenty-second sections of the petition shows failure by defendant to exercise ordinary care, and in the twenty-fifth and thirtieth sections it is sufficiently alleged that this proximately caused the death of the plaintiffs’ son. We are therefore of the opinion the petition, as against general demurrer, states a cause of action for the death of plaintiffs’ son.
“It is insisted by plaintiffs that, since negligence is not an essential element of a nuisance and they have alleged a nuisance on their premises, it is not necessary for them to prove negligence in order to recover for the death of their son. In this connection it is further insisted that contributory negligence of the deceased will not bar the action. This view is untenable.
“If the allegations showing a want of the proper care by defendant be disregarded, the defendant is at most guilty of but a simple trespass in permitting the branch line to remain upon the premises and in the house carrying a current of electricity. The nuisance is created, not by the simple trespass, but by the negligence of the defendant in the particulars indicated. See title ‘Nuisances,’ 46 C. J. § 28, and 20 R. O. L. § 3, at page 382. The proximate cause of the death of the son was the negligence stated, for without such negligence the death would not have occurred. Clearly negligence is the gist of the action for the son’s death. Under settled rules his contributory negligence would defeat recovery of damages for his death.”

See (Tex. Civ. App.) 38 S.W.(2d) 165, 168.

We adhere to the view thus stated and regard the exceptions as without merit.

The second assignment complains of the overruling of a special exception leveled against a portion of the eleventh paragraph of the answer. The isolated portion excepted to is to be considered in connection with the allegations which follow. When so considered the exception is without merit.

Exception was also urged against the allegations in the twelfth paragraph to the effect that baling wire had been thrown over the primary lead by deceased or some other person.

It is objected that said allegations are-too vague, indefinite, and uncertain and do-not definitely charge that deceased threw said baling wire over defendant’s primary lead, and neither deceased nor plaintiffs could be legally held accountable for the results-thereof if done by another or third party not representing these plaintiffs or deceased.

Defendant had the right to plead different defenses in the alternative. The allegation-that deceased threw the baling wire over the primary lead was pertinent upon the-issue of contributory negligence, and the alternative allegation that some one else threw it was pertinent upon the issue of negligence charged against the defendant. The allegations'complained of are not lacking in clearness. Their meaning cannot be mistaken.

Complaint is made of the refusal to-permit the witness Malone, employer of deceased, to testify concerning his intention to increase the wages of deceased. The bill does not disclose what the answer of the witness would have been. In this condition of the record the ruling cannot be reviewed. Knight v. Texas & N. O. Ry. Co. (Tex. Civ. App.) 26 S.W.(2d) 672, 674, and cases cited.

There was no error in permitting defendant to offer in evidence photographs of the transformer post and the top of the post itself which had been cut off and brought into court. 22 C. J. 769 and 770; Dinch v. Paris L. & G. E. Co., 80 Tex. 23, 35, 15 S. W. 208; Gulf, C. & S. F. Ry. Co. v. Boyce, 39. Tex. Civ. App. 195, 87 S. W. 395; St, Louis & S. F. Ry. Co. v. Ewing (Tex. Civ. App.) 126 S. W. 625; Addington v. Jones, 149 Ark. 669, 234 S. W. 24; Choctaw E. Co. v. Clark, 28 Okl. 399, 114 P. 730, 732.

About March 16, 1929, plaintiffs ceased to use the lights in the residence, and the meter box at the house was removed. The residence occupied by plaintiffs and deceased was the only house served by the line in question.

In the fourteenth, fifteenth, and sixteenth paragraphs of the petition it was charged that when the use of electricity in the dwelling was discontinued the current was not cut off at the main line upon the highway, as it could and should have been done, hut the wires were allowed to remain connected there and convey a current of electricity of high and dangerous voltage which was wholly unnecessary as plaintiffs were the only patrons on the line; and that the line had never been inspected and examined to determine whether it had gotten out of repair and was in a safe condition.

Upon the former appeal it was held these allegations show negligence on defendant’s part.

The evidence raises the issues of negligence thus pleaded.

Plaintiffs, in writing, excepted to the court’s charge:

“Third: Because the same fails to submit to the jury the question of whether or not the defendant was negligent in failing to disconnect and cut- out the electric current on its service wires at the public highway where they entered the premises on the Melton place, when they removed the meter and disconnected the lights in the residence occupied by the plaintiffs on the Melton place on or about the 16th day of March, 1929, as alleged by plaintiffs.
“Fourth: Because the same fails to submit to the jury the question of whether or not the defendant was guilty of negligence in failing to inspect and examine said line located on the Melton place and premises to determine whether same was out of repair or in an unsafe condition, as alleged in plaintiff’s petition.”

The first section of the court’s charge, as quoted above, submits the'issue of negligence in permitting the current to escape or flow down the ground wire in general terms broad enough to include negligence in failing to disconnect the line at the highway and to inspect and examine.

But it was the right of the plaintiffs to have an affirmative presentation of the facts by them pleaded as negligence and which the evidence supports. M., K. & T. Ry. Co. v. MeGlamory, 89 Tex. 635, 35 S. W. 1058; St. L. S. W. Ry. Co. v. Hall, 98 Tex. 480, 85 S. W. 786; M., K. & T. Ry. Co. v. Rogers, 01 Tex. 52, 40 S. W. 956; City of Dallas v. Jones, 93 Tex. 38, 44, 49 S. W. 577, 53 S. W. 377; S. A. & A. P. Ry. Co. v. Kiersey, 98 Tex. 590, 86 S. W. 744.

Plaintiffs requested two special charges upon this phase of the case, but as drawn they were objectionable in form for which reason their refusal pr’esents no error.

Paragraph 1 of the general charge was defective in the particular -indicated, and the plaintiff’s objections quoted above imposed upon the court the duty of preparing and submitting in a proper affirmative manner the issues of negligence arising upon the failure to disconnect the current at the highway from the main line and failure to inspect and examine the branch line.

It was formerly the rule of practice that it would have been incumbent upon the plaintiffs to prepare and request proper charges upon these issues but this is no longer true in view of article 2185, R. S. Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1188; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W. (2d) 570.

The court did not err in submitting the issue of unavoidable accident. The general denial raised the issue upon the pleadings. The evidence is exceedingly voluminous and very meagerly stated in the briefs, but from the statements contained in the briefs and made by counsel upon oral argument, the evidence also raised the issue.

The last two assignments complain of alleged errors in the court’s charge and in special charges 1, 2, 3, and 5, given at the request of defendant. No such objections were made in the court below and were therefore waived. Article 2185, R. S.

For the error in failing to properly submit the issue of negligence arising out of the failure to disconnect the current at the highway and the failure to inspect and examine the branch line upon the premises, the case is reversed and remanded.

On Rehearing.

Appellee in its motion for rehearing asserts there is no evidence to raise the issues of negligence arising out of the alleged failure to inspect and disconnect the current at the highway when the use of the lights in the house was discontinued and the meter at the house removed.

To the motion appellants filed a reply quoting the evidence upon’ these issues which we have checked and find to be correct. It plainly raises the issues mentioned.

Since the case must be reversed, it would be inappropriate to discuss its probative force and effect.

We merely refer to some of the cases which recognize that “electricity is a silent, deadly, and instantaneous force,, and one who uses it for profit is bound to exercise care corresponding to tlie dangers incident to its use.” Rowe v. Taylorville Elec. Co., 213 Ill. 318, 72 N. E. 711, 713; McLaughlin v. Louisville Elec. Light Co., 100 Ky. 173, 87 S. W. 851, 34 L. R. A. 812; Cooley on Torts, 1492. Quoted with approval by Justice Dibbrell in San Antonio G. & E. Co. v. Ocon, 105 Tex. 139, 146 S. W. 162, 39 L. R. A. (N. S.) 1046. See, also, Jacksonville, I. & E. Co. v. Moses, 63 Tex. Civ. App. 496, 134 S. W. 379, and eases cited In 20 C. J. p. 342, note 74.

The motion is overruled.