author: CALHOUN, Judge.

text:
    NIX v. STATE.
    No. 15485.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.

      Gentry & Gray, of Tyler, and Clifford L. Stone, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for 'the State.
   CALHOUN, Judge.

Conviction is for murder; punishment, 15 years in the state penitentiary.

The state’s evidence shows that in the town of Mt. Enterprise in Rusk county, Tex., there was what was known as the Derrick Café, The appellant and a man by the name of Jap Young, the deceased, had had an altercation in regard to the payment for some liquor which the deceased contended the appellant owed him. The deceased was seen to come out of the door of the Derrick Café and run north, and the appellant followed him out of the café. There appeared to be a filling station and garage north of Derrick’s Café. The appellant stopped in front of the filling-station and asked a witness for the state if he had seen a man go up the road, and the witness answered that he had. Whereupon, 'the appellant said, “If I catch that Gd-- s-o-- b-I am going to cut his G- d- head off,” and the man. in the filling station told him that he ought to quit that, that there were ladies in the next house above 'the filling station, whereupon the appellant slipped his knife in the side of the door and made a left-hand turn, and stated, “I have go't plenty of'money and every Gd-thing.”

Another witness for the state testified that after the deceased had run north from the Derrick Café, the appellant came back into the café with a large bone handled knife in his hand, and made the statement, “You know I had to kill that s-o — ■—• b-,” and said that that was the third man he had killed.

Another witness for the state testified that appellant made the statement that he had to kill the s- o- b- because he had made him mad.

The evidence further showed that the deceased laid down in the café and apparently went to sleep; that about 5 o’clock in the morning the appellant borrowed a hammer from a state’s witness and straightened out the point of the knife, which had a little bend in it. The body of the deceased was found the next morning a short distance north of the filling station lying in a ditch along the public road. The body of the deceased showed marks of violence. There was a wound above the collar bone on the right-hand side which went into the pleural cavity, and was about an inch and a half or two inches long. It was more -like a stab, as described by the witnesses, as if the person who made the incission had stuck a knife in and then jerked it as it came out and made a cut.

The evidence further showed that both the appellant and the deceased at the time they were in the café had been drinking.

The appellant, testifying in his own behalf, testified that he and the deceased had been drinking during the night, and he had bought some liquor from the deceased. After they got to the Derrick Café, the deceased went out of the café and a short time afterwards came back into the café and told the appellant that he owed him a dollar for whisky. The appellant then told him, “I don’t owe you a dollar and if I did I couldn’t pay you because I don’t have the money,” whereupon the deceased replied, “You are going to pay me that dollar or I will kill you, you s — — o — — b ,” and then came towards the appellant and reached in his pocket. They then ran together, and appellant testified that he tried to get by the deceased, who was in the doorway, and he couldn’t swear that he cut the deceased, but he knew he had a little tussle there with him, and if he cut the deceased it was because he thought deceased would kill him; that in the tussle they fell out of the door together, and when they got out of the door the deceased jumped up and started north; that he didn’t know whether he cut the deceased or not, but he could have cut him before the deceased left if he had wanted to. After the deceased ran off, he, the appellant, went up to the filling station, and he didn’t know hardly what he did; that the last time he saw deceased was when he, the appellant, was going up the highway.

There were no exceptions to the court’s charge. By bill of exception No. 1, appellant complains of the refusal of the trial court to grant his application for a continuance until he could have a new trial, and dismissal of a cause wherein the appellant had been convicted on the 21th day of September, 1923, of manslaughter, and his punishment fixed at three years in the penitentiary, and which sentence had been suspended. If it should be contended that the purpose of this motion is to have the case dismissed in order that the appellant might again ask for a suspension of sentence, this could not have been done, as the law gives to the accused only one suspended sentence. Calloway v. State, 91 Tex. Cr. R. 501, 240 S. W. 554. If the purport of the bill of exception is to raise the question that the former judgment of conviction should have been set aside in order that the accused might not be asked upon the trial of the case, if he took the stand as a witness, in regard to said former judgment of conviction, then the bill fails to reflect any error that would call for reversal of this case, because there is nothing in the record to show that upon the trial of the instant case the matter was in any manner mentioned, or that it entered into the trial of the case.

Bill of exception No. 2 complains of the refusal of the trial court to grant his motion to quash the venire because neither the duly qualified and acting clerk of the district court of Busk county nor his duly qualified and acting deputy clerk of the district court of Busk county had drawn the special venire in said case as was provided and required by law. This bill of exception is in question and answer form. No certificate of the trial judge showing 'the necessity of such form appears in the record. "When a bill of exception appears in question and answer form, in order to receive consideration, a certificate of the trial judge must show the necessity for such form. Polk v. State, 109 Tex. Cr. R. 421, 5 S.W.(2d) 149; Houston v. State, 114 Tex. Cr. R. 544, 26 S.W.(2d) 1066.

Bill of exception No. 3 is nothing more nor less than a certificate that a motion was made to quash the venire for several reasons. Nothing in the bill supports any of the allegations. The bill is in the attitude of containing nothing more than an allegation of objection of the appellant to the ve-nire without the same being in any manner shown to have been a fact. There is nothing in the bill to verify the truth of the objection, and a mere statement of a ground of objection in a bill of exception is not a certificate of the trial judge that the facts which form the basis of the objection are true. It merely shows that such objection was made, and the appellant did not incorporate so much of the evidence in the bill as would verify the truth of his objection. Therefore, it is not subject to consideration under the authorities. See Coleman v. State, 110 Tex. Cr. R. 409, 10 S.W. (2d) 559; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 122, 125; Fisher v. State, 107 Tex. Cr. R. 383, 296 S. W. 545; Stanford v. State, 103 Tex. Cr. R. 182 280 S. W. 798. The same is true with reference to bill of exception No. 5 on the same question.

Bill of exception No. 4 raises the same question substantially as that raised in bill No. 1, and what we have said in comiection with bill No. 1 equally applies to bill of exception No. 4.

The trial court sought to qualify each of said bills, but as such qualifications were objected to by the appellant we cannot consider said qualifications in connection with said bills of exception.

While the evidence in this case is conflicting, there was sufficient evidence offered on the part of the state to warrant the trial court in submitting the issue as to the guilt or innocence of the appellant to the jury. The jury having decided adversely to the appellant, we see no just reason to disturb said verdict.

We note that the judgment and sentence assess the appellant’s punishment at a straight term of 15 years. The judgment and sentence will therefore be reformed so as to declare that the appellant shall be confined in the penitentiary for an indeterminate period of not less than 2 nor more than 15 years, and as so reformed, no reversible error appearing, the judgment is affirmed.

Beformed and affirmed.

PEB CUBIAM.

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.


source: Caselaw Access Project

author: LATTIMORE, Judge.

license: Public Domain

text:
    COLEMAN v. STATE.
    No. 15615.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    R. A. Wilson, of Amarillo (Thomerson & Wilson, of Amarillo, on the brief), for appellant. )
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for selling intoxicating liquor; punishment, four years in the penitentiary.

The testimony of Mr. Callis that he purchased two gallons of whisky from appellant is clear and direct. Appellant gave said witness a very vigorous cross-examination, evidently for the purpose of reflecting upon his credibility. Witness admitted that he was working for the sheriff, and was employed for the purpose of endeavoring to break up illegal liquor selling. He admitted that he paid for the whisky with money furnished him by the sheriff. He also admitted that he had been charged with various and sundry offenses.

Appellant offered a number of witnesses who testified to an alibi, which raised a question for the jury, and they have decided same against appellant’s contention.

We find in the record seven bills of exception. The first complains of testimony of the sheriff who was asked by the prosecuting attorney if he had not had occasion in recent months to go to appellant’s house. The ques-. tion was objected to as going into extraneous matters and transactions, but, when overruled, the witness answered that he had been to appellant’s house two or three times in recent months. It is shown by bill of exception No. 2 that, immediately after the witness had testified as complained of in bill of exeep- • tion No. 1, the prosecuting attorney asked the sheriff, “What was your business over there?” meaning at appellant’s house, and that, before objection could be made, the sheriff answered, “To make searches.” Appellant’s objection to this was sustained, and at his request the court instructed the jury not to consider the question or answer. Bill of exception No. 3 shows that, after these occurrences had taken place in the presence of the jury, complaint of which was made in bills of exception Nos. 1 and 2, the sheriff was asked'by the prosecuting attorney, “Have you not in recent months had occasion to warn this defendant about selling whisky?” The bill certifies that again before appellant’s counsel could state his objection the witness answered, “Yes, I have.” The bill shows that when the objection was made to this matter the court sustained it, and further instructed the jury not to consider the testimony. Bill of exception No. 4 sets out that, after the things had occurred as presented in bills 1, 2, and 3, the prosecuting attorney asked the sheriff, “About May the 1st, state whether or not you did suggest to Boley Callis to go over there and see Shine Coleman, and get some whisky.” The bill recites that appellant objected to this, and that the objection was overruled, and witness was permitted to answer, and did answer, “I did.”

It is very difficult for us to see how the above occurrences could have failed of having a very injurious effect upon the rights of this appellant before the jury. Charged with selling intoxicating liquor, and relying upon an alibi, appellant was compelled to stand trial before a jury who heard their sheriff testify that he had on different occasions warned appellant against selling whisky; also that their sheriff had on different occasions gone to appellant’s house to make searches, by which the ordinary citizen, in a case like this, would have unquestionably understood that he had gone to appellant’s house frequently to search for intoxicating liquor. We could not say at all that this testimony did not prejudicially hurt appellant’s rights, inasmuch as the jury gave him a sentence of four years, or three years more than the minimum.

We further note that bill of exception No. 6 complains of the fact that the district attorney in his argument to the jury said: “Your sheriff, Harve Foust, didn’t send Boley Callis out there to get whisky from this defendant unless he had plenty of reason to know that Boley Callis could buy liquor there.” This argument was objected to, and at the request of appellant the .court instructed the jury not to consider same. At another time in his argument the prosecuting attorney said: “It doesn’t require any stretch of imagination for you to know that Mr. Foust, your sheriff, must have known what he was doing when he sent Boley Oallis out there,” and this argument was objected to also. It is greatly to he regretted that conduct and occurrences such as above referred to should have been indulged in the trial of one who, no matter how guilty he may have been, had the right to he tried upon the facts and the law and not have his case prejudiced by improper argument or testimony. The trial judge seems to have tried to prevent same.

The judgment will be reversed, and the cause remanded.


author: MORROW, Presiding Judge. LATTIMORE, J.

text:
    SMITH v. STATE.
    No. 15587.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Rehearing Denied March 1, 1933.
    Grady D. Hudson and Aaron Sturgeon, both of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of 99 years.

The conviction is for the murder of Razz Bray, a man about 44 years of age, who was partly paralyzed, and lived alone in a two-room house.

On Sunday night, September 20, 1931, Bray was visited by bis sister, wbo left bim alive and well at 8:30 o’clock in tbe evening. At some time during tbe nigbt and prior to 6:30 o’clock tbe following morning, the bouse occupied by Bray was destroyed by fire, and tbe charred body of Bray was found near tbe fireplace. Gone from tbe place was tbe watch: of Bray, also his gun; both of which articles were shown to have been in his possession at the time his sister parted from him. A witness testified that about 1 or 2 o’clock in the night of September 26th, the appellant appeared at the residence of a citizen who lived about a mile and a half from the dwelling place of the deceased and asked for and obtained the privilege of spending the remainder of the night upon the gallery; that on the following morning he was seen by the witness in the yard in possession of a shotgun.

The alleged fact that the appellant was in the neighborhood of the tragedy shortly after it occurred and that he was at the time in possession of a shotgun is vouched for by several witnesses in behalf of the state. By similar testimony it was also shown that a short time After the homicide the appellant was in possession of and disposed of a watch and gun, both of which were identified as the property of the deceased.

The written confession of the appellant is formal as to warning and signing, and contains the following: “On Sunday night, about tbe 20th day of September last year, t went to Raz Bray’s, house about 9 o’clock in tbe night. Raz Bray was at home by himself; he lived about one and a half miles southeast of Paris, Lamar county, Texas. When I got to his house he was sitting by the fire and when I went in the house I asked him if he had any money and he told me that he didn’t have any money, and then I asked him if he had a'pistol and he said that he didn’t. Raz Bray then started to get up out of the chair he was sitting in and and I got a piece of iron about two feet long and about an inch thick that was standing by the fire place and knocked him in the head with it. I then got his watch that was lying on the table there in,the house and got his shot-gun that was there in the house; then I took the top off from the lamp that was on the table and poured coal oil on the walls of the bouse ajid set it afire. I then left Raz Bray’s bouse and went down the Paris & Mt. Pleasant railroad and went to Jiip Morgan's house on Mr. Hanna’s place, about two or three miles from town, and slept on the porch until day-light, the next morning. I talked to some one in Jim Morgan’s house that night when I got there. I left Jim Morgan’s house about day light or before. On Tuesday after I soaked the watch I got out of Raz Bray’s bouse to Joel Davis for $2.50. I sold the shot-gun I got out of the house to O. T. Miles and got three dollars for it. ■ After I hit Raz Bray with the iron, I never noticed him move any more and he never did speak after I hit him.”

Appellant testified in his own behalf and-claimed that the written confession introduced by the state was made by him under coercion; that the officers having him in charge took him from the jail handcuffed and hung him on the limb of a cedar tree by means of a chain; that he denied bis guilt, hut, because of the officers’ persistence in threatening him, and their refusal to release him from the tree, he finally admitted his guilt. He was then taken by the officers to the county attorney’s office, where the confession was made and signed by him; that he was under the dominion and fear of the officers wbo bad him in charge at the time he signed the confession.

Clyde Shelton, a constable, testified that he and others took the appellant to the place where the deceased was killed, and, as they approached the place, the appellant protested against being taken there. He said that he would tell the truth, and he was then taken to the county attorney’s office, where he made the confession without any coercion. Collins, a deputy sheriff, and Cunningham, tbe jailer, gave similar testimony. Tbe officers denied the use of force or coercion, and also denied the use of chain and making of threats as claimed by the appellant.

By his own testimony the appellant presented the theory of alibi, and introduced some witnesses to support it. Pie testified that the watch identified as belonging to the deceased was gotten by him from Bryant Styles, a negro boy who lived in the town; that he pawned it to Joel Davis for $2.50; that he also got the shotgun from Styles and sold it to a man named Miles. Appellant admitted that on the night of the 23d of September, he was sleeping in the barn of Coy Hill; that be was also on tbe premises of Robert Eord at the time he had the double-barreled shotgun which he had gotten from Styles. I-Ie claimed that he had been hunting with the gun, got tired, and stopped in the barn to sleep. At that time he did not have the watch in his possession; it having been pawned.

Styles testified that he did not have the gun or the watch, and that he did not sell them to the appellant.

The principal legal question presented in this review is the contention of the appellant that the corpus delicti is not established. The count in the indictment upon which the verdict rests is that charging that the appellant killed Razz Bray by striking him with a piece of iron.

The validity of the conviction is attacked upon the specific contention that there is not sufficient proof that the blow with tbe ifiece of iron caused the death of the deceased. While in the appellant’s confession it is stated that a bar of iron was the weapon used, the appellant truly says that his extrajudicial confession alone is not sufficient. The rule is thus stated in Kugadt’s Case, 38 Tex. Cr. R. 681, see page 691, 44 S. W. 989. 996:

“The general doctrine is that extrajudicial confessions, standing alone, are not sufficient proof of the corpus delicti; and some of the cases hold that the corpus delicti must be proved independently of confessions. But we do not understand such to be the better doctrine. In other worás, in the establishment of the corpus delicti, the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence. * * *

“When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. * * *

“We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti, and in aid thereto use confession of the appellant.”

On the subject of the jury’s finding that the death of the deceased resulted from a blow with an iron bar, the following observations are made: At nightfall, the deceased, a man of matare years, was alive and well, save that he had a crippled arm. He was alone in his house. At dawn on the following morning his charred remains were found on the hearth of his dwelling which had been destroyed by fire during the night. His relative testified and identified his body, basing her judgment, as understood, upon the shape of the arm of the deceased. No mention was made by her or the other witnesses of the condition of the body, save that the charred remains were identified as above stated. From the confession of the appellant, it appears that he entered the house of the deceased at nighttime; that he saw the deceased sitting in a chair; that he seized an iron bar and struck the deceased a blow on the head which felled him to the floor. Aside from the confession, the evidence showed that after killing the deceased and taking his property, the appellant set his house on fire. From the facts adduced, it is not escapable that before the deceased was robbed and his house set on fire, he had been felled to the floor by a blow with an iron bar sufficient in its dimensions to apparently produce death. The facts revealed demonstrate that the blow with the iron bar was a contributing cause of the death of the deceased. Under the facts before the jury, it appeared that the deceased was first felled and robbed and then left in a burning house set on fire by the accused. There is in the record evidence sufficient to show that the appellant’s accounting for his possession of the property of the deceased was false. The identity of the accused as the actor in each of these assaults appeared both from his confession and the circumstances in evidence. We regard the contention that the proof of the corpus delicti was not sufficient as untenable. Appropriate instructions were given to the jury touching the two counts in the indictment, and their finding was specific to the effect that the deceased was< killed with an iron bar. The availability of circumstances to establish the corpus delicti is affirmed in many eases. See Tex. Jur., vol. 12, pp. 270, 271. See, also, Graham v. State (Tex. Cr. App.) 51 S.W.(2d) 401; Wharton’s Cr. Law (12th Ed.) vol. 1, §§ 352, 353, 357 and 359; also p. 671, § 435.

On the merits, this case differs from that of Hernandez v. State, 110 Tex. Cr. R. 159, 8 S.W.(2d) 947, to which we have been referred. Hernandez was not shown to have been in the possession of any of the property of the deceased, and the admitted conduct of the officers who had him in charge presented a serious question touching the admissibility of the confession.

Bill No. 1. The indictment was not duplicitous. However, the first count alone was made the basis of their verdict by the jury, which would eliminate the question of duplicity. This also applies to bills Nos. 4 and 5.

Bill of exception No. 2 brings forward the complaint of the appellant of the action of the court in refusing to continue the case. A continuance was sought to secure the testimony of W. P. Evans, Jack James and W. A. Crawford. The averments touching the testimony expected of the witnesses are set out in the application for a continuance as follows:

“That he expects to prove by W. P. Evans, witness, that he was at Deport, Texas, on the date of the alleged crime and was not present at the scene of the alleged crime as charged in the indictment.

“That he expects to prove by the witnesses Jack James and W. A. Crawford -his physical condition before he was taken from the Ramar county jail and hung and a confession extorted from him and also prove his physical condition at the time he returned tp the Lamar county jail.”

The facts set up in the motion are not regarded as sufficiently specific to show the materiality of the testimony to which they referred. It appears from the motion and the bill complaining of the matter that the application for a continuance was neither signed nor sworn to by the appellant. In qualifying the bill, the court states his reasons for refusing to grant the motion, among others, that the appellant failed to swear to the motion. The purported exception to the qualification of the bill is not verified by the approval and signature of the judge, and consequently is not effective. See Thomas v. State, 83 Tex. Cr. R. 325, 204 S. W. 999; Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088. Under such circumstances, the qualification of the bill is available for consideration by this court. In article 545, C. C. P. 1925, it is said: “All applications for continuance on the part of the defendant must be sworn to by himself.”

The effect of the failure to comply with the mandate of the statute is discussed in the case of Maples v. State, 60 Tex. Or. R. 169,131 S. W. 567. It appears from the statement of facts that both the witnesses James and Evans appeared and testified on the trial. The witness Crawford was not under process, but his testimony would have been to the effect that while present in Uamar county jail he saw the appellant who was taken out of jail; that when he returned some time later “he was walking weak and slow”; that on the following morning the witness was shown by the appellant a red mark on his neck and bruises on his arm. He complained to the witness about his wrist. The bill, especially in the light of the qualification, shows no error.

In bill No. 6 the same matter of continuance was brought before the court as a part of the motion for new trial. There appears no change in the motion, but in connection with the bill is the affidavit of W. A. Crawford. The motion for a continuance is not' in condition for consideration for the reason, as stated above, that it was not properly verified, and for the additional reason that at the time it was rendered it was subject to other objections, including the sufficiency of the averments as to the materiality of the evidence.

Touching bill of exception No. 3, which complains of the introduction of the appellant’s written confession in evidence, it is to be observed that the appellant testified that his confession was the result of coercion. This was controverted by the witnesses introduced by the state. The matter was submitted to'the jury in an instruction by the court, and the result of the trial reflects a decision of the issue of fact in favor of the state. Many precedents support the procedure and the view that under such circumstances the settlement in favor of the state must be upheld on appeal. See Branch’s Ann. Tex. P. C., p. 46, § 75; McVeigh v. State, 43 Tex. Cr. R. 17, 62 S. W. 757; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597, 604; Grace v. State, 90 Tex. Cr. R. 329, 234 S. W. 541; Byles v. State, 91 Tex. Cr. R. 127, 237 S. W. 558; Patton v. State, 111 Tex. Cr. R. 555, 15 S.W.(2d) 11.

The alleged newly discovered evidence was relied upon to controvert the state’s testimony upon the issue of coercion in bringing about the confession, and to corroborate the appellant upon that subject. He testified, as hereinabove stated, that he was handcuffed and a trace chain run through and swung up to a limb of a tree. From his testimony we quote: “They had me down by. the T. & P. railroad- there, out at the old Razz Bray place. They had me hung on a cedar tree. Mr. Collins was there and Mr. Payne and Mr. Clyde Shelton. While I was there, there was a ear come there and stopped and they shot twice over across the Mt. Pleasant railroad and they come driving down the road fast.”

The substance of the alleged newly discovered evidence was set out in the affidavits of Homer Robbins, Bryand Denny, and Lawrence Eckels. The affidavits bore date the 18th day of May, 1932. The substance of all the affidavits is illustrated by that of Homer Robbins, which we reproduce as follows: “I, Homer Robbins and three other boys, Herman McCoin, Bryand Denny, Lawrence Eck-els, went walking around down the M. P. tracks some two months ago, about nine o’clock and about the middle of the week. Two sedans, one a Chevrolet and the other a Ford, came down the road. One was a little ways behind the other with the lights off. They stopped at the old place of Razz Brays. They got out and shined flashlights around the place and up in the trees. We heard two shots from a pistol, then is when we decided to leave. We came up the tracks towards town. We got a good ways up the track and seen one of the cars leave. They had been there about 30 or 40 minutes.”

The appellant and the state’s witnesses are in agreement in the claim that during the night upon which he made the confession, he and three officers were in the neighborhood described by the appellant in his testimony. There is no testimony from either source indicating that the firing of the shots mentioned by the appellant and by the boys boro any relation to the voluntary character of the confession. The identity of the time described by the boys in their affidavits and that of the date of the confession is not shown with any degree of certainty in the newly discovered evidence. The young men in making the affidavits simply said that it was “some two months ago.” The date of the confession was March 23, 1932. We are constrained to regard the contention that prejudicial error appears from bill No. 9 cannot be sustained.

The opinion is expressed that there is revealed by the record no weakness in the evidence nor fault in the ruling of the trial court that would demand or authorize a reversal of the judgment of conviction.

It appears that in entering the judgment there was error in failing to properly describe the offense of which the appellant was convicted by the jury, which was the offense of murder with malice. The judgment should be reformed to agree with the verdict and show that the appellant’s conviction was for murder with malice aforethought, and penalty fixed at confinement in the penitentiary for 99 years. It is therefore ordered that the judgment be reformed in the above particular-, and, as so reformed, it be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In count 1 of the indictment appellant was charged with a killing by striking with a piece of iron. This description of the weapon used was sufficient. The second count charged a killing by burning. The third count charged a killing by both burning and striking, but in the charge this count was eliminated by express direction from the court. - The first and second counts were submitted to the jury, with instructions that in case a verdict of guilty was reached, the jury should state upon which count they based their verdict. This was proper practice. The jury specifically found appellant guilty under the first count, and the judgment and sentence followed the verdict.

We have carefully examined the numerous propositions found in appellant’s motion, covering nearly all the matters decided by us and find nothing amiss, save a slight error of inadvertence which has been corrected in the former opinion. Most of appellant’s discussion apparently urges the inadmissibility of his confession, but same is really a complaint of the lack of evidence to establish the corpus delicti. Under all our authorities the state was entitled to introduce the confession upon the prima facie case of admissibility made by its witnesses who swore that the confession was freely and voluntarily made. Appellant having sworn to a different story, that said confession was untrue, and that same was extorted from him by threats and violence, the court below, again following our settled line of holdings, submitted to the jury the issue thus made, that is, whether the confession was or was not free and voluntary.

In said confession appellant admitted the killing of deceased by striking him with a piece of iron. There hence remained but the question of whether other testimony supported and corroborated this extrajudicial confession. To our minds the sufficiency of such other testimony is clear. Appellant said in the confession that he killed deceased Sunday night, and then burned the house, after-taking the watch and shotgun of deceased; that he then went to Jim Morgan’s house, talked to Morgan, and slept on his porch until daylight; that a couple of days later he soaked said watch to Davis, and sold the gun to Miles. In corroboration and support of this it was shown that deceased, who lived alone, was alive and well as usual at 8:30 o’clock Sunday night; that he had his watch at said time, and his shotgun was lying on his bed; that about midnight his house was observed in flames; that next morning the dead body of deceased was found in the ashes of his burned house; search for the metal of his gun failed to find it. Jiih Morgan and another swore that on Sunday night about 1 or 2 o’clock appellant, carrying a double-barreled shotgun, came to Morgan's home and slept on his porch till day. Others swore to seeing appellant that day near the home of deceased with a double-barreled shotgun. His possession and sale of the watch and gun of deceased after his death was proven.

It is well settled that circumstantial evidence may be resorted to to show that the death of deceased was the result of violence inflicted. Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Wilson v. State, 39 Tex. Cr. R. 365, 46 S. W. 251. This case bristles with such circumstances. The confession may be looked to in aid of other proof of the corpus delicti. Lott v. State, 60 Tex. Cr. R. 162, 131 S. W. 553; Kugadt v. State, 38 Tex. Cr. R. 694, 44 S. W. 989. We are not able to agree with appellant in his renewed complaint of any procedure.

The motion for rehearing will be overruled.


author: CALHOUN,- Judge.

text:
    MALIN v. STATE.
    No. 15624.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.

      Lackey & Lackey, of Stinnett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN,- Judge.

The offense is murder; punishment, 35 years in the penitentiary.

The evidence for the state showed that the witness H. 6. Bryant, as adjuster for a credit company which held the notes on a car appellant had purchased, came to Borger to arrange a settlement with the appellant for the payment of the notes, which were past due. Not being able to find appellant, the manager of a motor company at Borger recommended that he get one Roy Owens, the deceased, to help him find the appellant, and he. (the witness) and the deceased finally located the appellant late in the afternoon. It was agreed between the appellant and the witness that they.would drive to Pampa and see one Clossin in order to arrange the settlement. The appellant drove in his car, and the witness and deceased followed in their car thinking that he was going to Pampa. At Whittenburg the appellant turned his car around and, in response to a question of deceased as to where he was going, told them that he was going to Pampa and dz-ove off. The witness turned his car around and followed him. Appellant drove through a camp, down a steep hill, and stopped his car on the othef side of a small stream. The witness drove his ear down the hill and stopped his car a little ahead of appellant’s car. When he stopped, the deceased called out to appellant azid asked him why he had stopped his caí-, to which the appellant made no answer. As the witness Bryant got out of his car and walked to the rear, he saw a ied flame shoot from the car driven by appellant and from appellant’s hand, which was projected over the door of appellant’s car, and at the same time he saw deceased slump forward, and he knew deceased was hit. After the shot he ran to the rear of the. automobile and the appellant then shot at him, but he got behind a little pile of dirt and fell flat on the ground. The appellant then turned his car around and drove off.

The appellant admitted having the conversation with the witness Bryant on the streets of Borger, but there was a difference as to what was actually said between them. He testified that the witness demanded the car of him or that he pay the amount due, and stated to him that the man from whom the appellant had purchased the car had told him either to make an adjustment as to payment for the car or to take said car. The appellant further testified that at the time he went down the hill he was going to a milk man’s house to meet two boys he was to take back to Sanford that night. That a car was following him, and when it stopped in front of him he heard some one in the car say, “We have got the s — <— of a b-” ; that the man on the right-hand side of the car got out and came running toward him, and he was frightened and grabbed the gun in his car and fired point blank out of the left of the car and then turned around and fired at the rear of the car. He further testified that he didn’t know who the men were at the time and didn’t recognize either of them. He thought they were going to beat him or kill him. He then backed his car and started back to town, and because of the frightened condition of his mind he didn’t know where he left his car, but recollected that it was somewhere on a highway. He didn’t know at the time he left the scene of the shooting that he had killed any one, and the first time he knew that he had killed the deceased was when he read it in a paper at Tulia. He further testified that he did not hide out in the hills near where his car was found.

The appellant’s car was found by the officers the next morning some distance from a road at the foot of some hills. The shooting occurred on the night of the 22d day of March, 1932, and on the Saturday thereafter the appellant, accompanied by a friend, surrendered himself.

The court in his charge to the jury submitted murder with and without malice and self-defense from actual as well as apparent danger. Several exceptions .and objections were leveled at the court’s charge, all of which were of a very general nature. There was a general exception to the court’s charge because the evidence was not sufficient to authorize appellant’s conviction of the offense of murder either with or without malice. There was also a general exception to the definition of “malice aforethought.” Nowhere in the exception is the objectionable part of the charge on malice aforethought pointed out or in what manner the definition of malice aforethought was not sufficient. The court gave the ordinary definition of malice aforethought in his charge. Another general exception to the court’s chai'ge was that' it did not properly instruct the jury on the law of self-defense. It is not pointed out in the objection as to what manner the charge was not sufficient on self-defense.

Bill of exception No. 1 complains of the introduction by the state of a purported confession of the defendant. The bill is qualified without objection to show that the district attorney stated that the state would offer a confession of the defendant. Upon the appellant objecting to said statement by the district attorney, the court instructed the jury to disregard the statement of the district attorney and not consider it for any purpose whatever in the case. The bill further shows that at that time nothing contained in the purported confession had been introduced. Appellant’s counsel asked that the jury be retired so that he could go over the alleged confession. After an examination by the appellant’s counsel of said alleged confession, the court then asked the district attorney what he wanted to do with the alleged confession, to which the district attorney replied that he wanted to offer it, whereupon the court asked the appellant’s counsel if he had any objection, to which the appellant’s counsel stated that he did not. As qualified, no error is shown.

Bill of exception No. 2, as we understand it, claims that counsel for appellant was cut off from examining the appellant while testifying in his own behalf with reference to carrying a pistol in his car and whether or not he had a pistol on or about his person. The court qualified said bill to some length without objection on the part of the appellant. The qualification shows that the court sustained the state’s objection to the leading of the appellant by his counsel. The bill further shows that both the state and the appellant’s counsel examined the witness at some length and passed him back and forth about eight times. The court retired the jury and stated to appellant’s counsel that he could examine the witness out of the presence of the jury and if the testimony was admissible that the court would admit it, whereupon, in the absence of the jury, appellant’s counsel asked the appellant two questions in regard to the pistql and his possession thereof, and the court then stated to appellant’s counsel that the two questions asked in proper form would be admitted. The jury was returned to the box, and the appellant’s counsel asked the appellant one question, which was answered by the appellant without objection, at which time the appellant’s counsel stated, “That is all,” and made no further effort to ask such question or elicit such testimony in the presence of'the jury. Under said qualifications, no error is shown.

Bill of exception No. 3 complains of' the refusal of the trial court to give a special charge to the jury, which was as follows: “Xou are instructed as part of the law in this case that if you find and believe from the evidence beyond a reasonable doubt that the defendant, Joe Malin, in defense of his own life, or if the said defendant at the time he killed the said Owens, if he did kill him, believed that serious bodily injury was about to be inflicted upon him, the said defendant, or he was defending or believing that he was subject to a lesser attack, or that a lessei-attaek than those described above was about to be committed upon him, that it would be your duty to acquit the defendant and so say by your verdict.”

The only written objection to the charge upon that issue was as follows: “The defendant further objects and excepts to said charge of the court for the reason that the court does not properly instruct the jury as to the law of self-defense.” The exception itself was not sufficient to call the court’s attention to any error in the court’s charge on self-defense, and it will be observed that the charge requested is an incomplete and incorrect statement of the law under article 1224, Penal Code. See, also, Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024. The court gave a full charge both as to real and apparent danger and no further exceptions save the-one pointed out were reserved to said charge. Any complaint to the main charge of the court, either of commission or omission, must be specially pointed out in the objection and the matter complained of clearly indicated to the court. Even though a sufficient exception had been taken to the court’s charge and a proper special charge prepared, we are not able to say from the evidence that the trial court would have been called upon to submit it. The charge in question could only be based upon that part of the appellant’s testimony in which he said: “I did not recognize either of them there at that time. I didn’t know what these men were trying to do. When the man said, ‘We have got the s-- of a b-V I thought they were going to beat me up or kill me or something.” Under the circumstances, we are not able to say that any error was committed in the respect complained of which would justify a reversal.

Finding no error in the record which would justify a reversal, the judgment is ordered affirmed.

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.


author: MORROW, Presiding Judge.

text:
    ELLIS v. STATE.
    No. 15634.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    ’ Plotniek & Kolker, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of thirty years.

The evidence for both the state and the accused shows that the deceased was shot and killed by the appellant. A number of eyewitnesses testified for the state. According to their testimony, if true, the guilt of the appellant of murder with malice is not open to serious question. By the testimony of •the appellant and some of her witnesses, the theory of self-defense was presented; also that the appellant acted upon communicated threats alleged to have been made by the deceased. The issues of fact were submitted to the jury in an instruction, the accuracy of which is not called in question by the appellant.

Bill of exception No. 1 complains of the introduction in evidence by the state, through the witness, Hazel Campbell, of the purported declaration of the deceased, as follows: “After the shooting I called the ambulance; I went on down to the house and met two more people; I don’t know who they were, and me and them put this girl to bed, and she says, ‘Hazel, I’m not going to live over this, I know I’m going to die,’ and she says, T was looking for J. D. Echols to come and get me and let me get my dollar, but I didn’t know I was going to die over my cold blood.’ ”

Against the declaration the objection was made that it was hearsay, that it did not comport with the elements of a dying declaration in that there was a failure to show that the deceased was conscious of approaching death, and that the declaration was voluntary. In qualifying the bill, the court states that the statement was res gestee of the homicide. There was no exception to the court’s statement, and its binding effect upon this court is manifest.

Bill No. 2 complains of the court’s refusal to receive certain testimony of the state’s witness Daisy Thomas, who stated that she was acquainted with the deceased, and who was asked the following question: “Do you know if her husband was ever shot?” The objection was sustained. Appellant excepted upon the ground, as stated in the bill, that by the introduction of said testimony she would have shown that the deceased was a woman of bad reputation and that she had theretofore shot her husband and inflicted serious wounds upon him. There is nothing in the question to indicate that the answer to it would reflect upon the reputation of the deceased, and the fact that she had shot her husband would not have been relevant unless that fact had been known to the appellant. There is nothing in the bill to show that the appellant .knew that the deceased had shot her husband. The bill did show that there was evidence that deceased had said that “she would get the defendant.” Whether that was communicated or not is not disclosed by the bill. However, granting that it had been disclosed, it would not have been the basis for the introduction of a specific act of the deceased in shooting her husband, unless, as above stated, there was shown in the bill that the appellant had knowledge of the alleged fact.

Bill of exception No. 3 deals with proffered testimony on the same subject as that dealt with in bill No. 2.

In bill No. 4, it is stated that, in his closing argument, state’s counsel said: “All of those colored people back there (referring to the back of the courtroom) are here to see what kind of laws we have and how they are being enforced. Gentlemen, are you going to show them what the law is in Dallas County?”

The court instructed the jury to disregard the remarks. We take note of the fact that the bill fails to show that there were any colored people present in the courtroom further than what might be inferred from the language quoted above.

Bill No. 5 is simply a complaint of the overruling of the motion for new trial upon the ground that the verdict is excessive.

Finding no error, the judgment is affirmed.


author: HAWKINS, Judge. MORROW, P. J.

text:
    YOUNG v. STATE.
    No. 15521.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Rehearing Withdrawn March 1, 1933.
    V. M. Johnston, of Palestine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being three years in the penitentiary.

The indictment alleged the date of the offense. as “on or about” the 5th day of December, 1931.

The state used only one witness. Appellant did not testify himself, nor did ha call any other witness. The state’s witness was Haddix, a federal prohibition officer. From his evidence we condense the facts. On November 16, 1931, the witness went to appellant’s residence and purchased a half gallon of whisky, for which he paid $2. Appellant told witness any time lie wanted whisky not to stop in front, but to drive in back of the house. On December 5th witness again went to appellant’s place, and, as directed, drove in back of the house. Appellant came to the car and witness asked if he could get three cases (eighteen gallons) of whisky. Appellant told witness to drive down the road and come back in about two hours. Witness told him that would be too long. Whereupon appellant said to come back in about forty-five minutes. Witness did this, and again drove in at the back of the house, and appellant called witness out of the car to the back porch .and pointed to the three cases of whisky, and said it would be $54. The witness disclosed his identity. The house was then searched, and twelve gallons of whisky were found in a room just off the porch. A gallon fruit jar partly full of whisky, a jar of wine, and some “aging” chips were also found.

Appellant made application for continuance based upon the absence of appellant's wife arid a man by the name of Lane. These witnesses had been summoned. No question of diligence arises. Their absence is accounted for by the statement of doctors who certified that both witnesses were sick. It was stated in the application that if present Mrs. Young would testify that on the day of the alleged offense she was at her home with her husband during the entire day, and “that at no time wad her husband away from the home during said day, and that her husband did not sell whisky or any character of intoxicating liquor to Haddix or any other person bn the date alleged in the indictment, or at any other time * * * and that the defendant did not have in his possession intoxicating liquor of any character for sale or any other purpose.” The averment in the application was that Lane would testify, if present, substantially the same as Mrs. Young. No affidavit from either of these witnesses was attached to appellant’s motion for new trial. They were not indispensable. In the absence of a showing as to what particular facts the witnesses would swear to, we are inclined to the view that the court was not in error in denying'the continuance, on in refusing a new trial based upon its denial. It will be observed that nowhere in the application for continuance is it alleged that either witness would testify that Had-dix was not at appellant’s house on the occasion in question, nor that the transaction with Haddix did not occur. It is doubtful from his testimony whether a sale to him was consummated on the 5th of December, and so if the witnesses had been present and testified that no sale was made to Haddix it would have thrown no light on the incident. It is further observed that it is not averred that either witness would testify that there was no intoxicating liquor in or about the house on the occasion in question, but it is only alleged that they would swear to a conclusion, viz., that appellant “did not have in his possession intoxicating liquor of any character for sale Or any other purpose.” The facts to which the witnesses would have sworn should have been stated. They might or might not have thrown light on whether appellant was in possession of whisky, and, if so, for what purpose. It is necessary to set out in an application for continuance, based upon absent witnesses, the specific facts to which the witnesses would swear, and not rely upon general averments and conclusions. See section 312, Branch’s Ann. Tex. P. 0., and cases collated thereunder. See, also, note 9, under article 543, Vernon’s Ann. Tex. C. O. P., vol. 1.

It was stated in the application for continuance that Mrs. Young would testify that appellant never left the house during the day in question. We fail to seel the relevancy of this testimony. It was not claimed by the state that appellant went to some other place and secured the eighteen gallons of whisky which was on the porch.

The date of the offense was alleged to have been on or about December 5, 1931. The state is not bound by the date alleged, and may generally prove that the offense was committed at any time anterior to the presentment of the indictment, if it is not so. remote as to be barred by limitation. The facts testified to by the witness Haddix made out a case against appellant both on November 16th and December 5th. There was no request for an election. Appellant’s application for continuance, if it were otherwise sufficient, does not pretend that the testimony of the absent witnesses would throw any light on the transaction of November 16th.

The point raised by the other bill of exception as to admitting in evidence the search warrant is not briefed by appellant, presumably because the trial court shows by his explanation to the bill that no error was committed. The warrant did not go before the jury, but was exhibited to the court only.

The judgment is affirmed.

MORROW, P. J.

Since the affirmance of the case and the filing of the motion for rehearing, appellant has filed his written request, duly verified, asking that the motion be dismissed. The request is, granted, the motion for rehearing is withdrawn, and mandate will issue immediately.


author: COMBS, Justice.

text:
    STRIPLING v. SPIVEY.
    No. 2323.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 18, 1933.
    Rehearing Denied March 1, 1933.
    Edward Clark, of San Augustine, V. H. Stark, of Orange, and W. T. Davis, of San Augustine, for appellant.
    J. J. Collins, of Lufkin, and Bogard & Anderson, of San Augustine, for appellee.
   COMBS, Justice.

At the outset, we are confronted with a motion by appellee to strike out appellant’s brief on the ground that appellant failed to file his brief within the time prescribed by law (see Vernon’s Ann. Civ. St. art. 1848), and in sufficient time to permit attorney for appellee to prepare and file a reply brief on or before the day set for submission. We are of the opinion that the motioñ to strike the brief should be sustained.

The record was filed in this court July 11, 1932: On July 27, 1932, this court made an order setting this cause for submission on December 15, 1932. The clerk of this court promptly notified counsel for appellant of such setting. Appellant’s brief was not filed in this court until December 5,1932, only ten days before the day of submission. Ap-pellee filed no brief but instead he seasonably filed his motion to strike appellant’s brief. It is alleged in the motion, which is properly verified, that counsel for appellee did not receive a copy of appellant’s brief until December 4th; that, owing to the length of appellant’s brief, the number of issues involved, and the number of authorities cited, the preparation of a reply brief would be tedious and difficult, and that on account of the press of legal business during the ensuing week counsel for appellee would be able to devote little time, if any, to the preparation of a brief, his time being required in the trial of a case in the district court of Angelina county, which convened on Monday, December 5th ; and that he could not, under the circumstances, prepare and file a reply brief on or before the day set for submission. Counsel for appellant has filed a reply to the motion to strike. In his reply, however, counsel does not question the correctness of the matters above stated, nor does he offer any sufficient justification for his failure to file his brief sooner and in time for counsel for appellee to have a reasonable time to prepare and file a reply brief before submission day. He suggests that no injury would result to appellee from a postponement of the submission of the cause, and that we should postpone the submission for some later day of the term in order that counsel for appellee might have time to prepare and file a reply brief. We cannot agree with this contention. The right of an appellee to have his cause submitted in its regular order is a substantial right. Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 462, 463; West Louisiana Bank v. Terry (Tex. Civ. App.) 229 S. W. 639, 640. In the case of West Louisiana Bank v. Terry, supra, this court had before them a motion to strike appellant’s brief and dismiss the appeal because the brief for appellant was not filed within time for counsel for appellee to prepare and file a reply brief before the day set for submission, and counsel for appellant there suggested a postponement in order that appel-lee’s counsel might be afforded an opportunity to brief the case. In disposing of that question, Chief Justice Hightower, in the opinion, said:

“If this court should decline to gustain the motion to dismiss in this case, it would leave the appellees in this court without any brief in reply to that of appellant, without any fault or neglect on the part of appellees or their counsel, unless we should deny appel-lees the substantial right to have this cause submitted in its regular order, but postpone the same to some future day, and by that means allow appellees’ counsel time in which to brief appellee’s case. We feel that we would not be justified in doing this, and we doubt whether a reported ease can be found in Texas that would be' authority for such action, upon facts like these. ■

“This court has heretofore on several occasions refused to dismiss appeals because of failure on the part of appellants to file briefs in strict compliance with the rules, but their relaxation in those cases, it was thought, did not delay a submission of the cause, and also because it was apparent that the appel-lees in those cases had reasonable time to prepare and file briefs before submission. It is clear from, what we have said aboye, that such is not the situation here.”

In the instant case, as. in the case from which we have just quoted, appellee is. without a reply brief through no fault of his own. He has in no way waived his right to have his case submitted in its due order. Instead, he seasonably filed his motion to have appellant’s brief stricken from the record, and, under the facts, we find it our duty to grant the motion.

Appellee’s motion is to strike appellant’s brief and affirm the case. In that situation, but one question remains to be determined — ■ that of fundamental error. The suit is for rents on a store building in San Augustine in the amount of $1,750, and for possession of the property. Upon a trial of the case, verdict was instructed for the plaintiff and judgment entered for his rents and for possession. We have carefully examined the record, and find no fundamental error. It follows that the case should be affirmed, and it is so ordered.

Affirmed.


author: FLY, Chief'Justice.

text:
    COOPER et al. v. RUSSELL.
    No. 8986.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1933.
    Rehearing Denied March 1, 1933.
    Goodhue Weatherly, of Falfurrias, for plaintiffs in error.
    J. W. Wilson, of Falfurrias, for defendant in error.
   FLY, Chief'Justice.

This action originated in a justice’s court and was on an open account for $142.55, being prosecuted by plaintiffs in error, herein styled plaintiffs, against defendant in error, for brevity named defendant. Judgment was rendered in the justice’s court in favor of plaintiffs for their full claim. On appeal to the county court, on responses by a jury to special issues, plaintiffs recovered nothing and all costs were assessed against them. The items on which the claim was founded were oil and gasoline.

The jury found that plaintiffs did not own the oil and gasoline, but that they were the property of the Texas Company; that plaintiffs did not sell the oil and gasoline to defendant, but sold them to one Schellenberg, who did not represent defendant.

This suit may involve a small sum, but the transcript contains 94 pages, and the statement of facts 73 pages. The brief of plaintiffs contains 27 pages and defendant’s brief 21 pages.

Plaintiffs present eight propositions, and in the first proposition claim that the court erred in not permitting them to file a certain trial amendment. The suit was founded, in the justice’s court, on an account due plaintiffs for oil and gasoline sold in their own right to defendant, and the case was set out .in a petition filed in the county court. After the evidence had established that plaintiffs had not sold the oil and gasoline for themselves, but as agents for the Texas Company, plaintiffs then sought to abándon the claim made in the justice’s court as well as the county court, that the oil and gasoline was their property and asked leave to file a trial amendment alleging that the property belonged to the Texas Company and that they had it for the company. In other words, when they failed to sustain their claim to the property, they sought to meet the evidence by claiming it for the Texas Company.

The court undoubtedly had the discretion to refuse unreasonable amendments, coming at an unreasonable time during a trial, and it is clear that the discretion was wisely administered in this instance. Reid v. Allen, 18 Tex. 241; Teas v. McDonald, 13 Tex. 349, 65 Am. Dec. 65; Walker & Sons v. Hernandez, 42 Tex. Civ. App. 543, 92 S. W. 1067; Goodney v. Railway Co., 51 Tex. Civ. App. 596, 113 S. W. 171. Plaintiffs had recovered in the justice’s court on a different cause of action from the one they sought to set up by a trial amendment in the county court. If such practice was permitted or encouraged, trials would become delusive mockeries and pleadings would develop into ingenious devices for eliciting the evidence and setting up cases to meet the evidence. There is no merit in any of the contentions of plaintiffs.

The judgment is affirmed.


author: FEY, Chief Justice.

text:
    TEXAS & N. O. R. CO. v. EAST et al.
    No. 8887.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1932.
    Rehearing Denied March 1, 1933.
    John C. North and R. B. King, all of Corpus Christi, for appellant.
    Perkins & Floyd, of Alice, for appellees.
   FEY, Chief Justice.

Appellees sued appellant and the Texas Mexican Railway Company to recover the sum of $777.20, damages alleged to have arisen on a shipment of cattle from Brownsville, Tex., to New Orleans, La. The damages were alleged to have been caused by the negligent and rough handling of the cattle, and delay along the route. It was alleged that seven cows were killed in transit, and other cows injured. Appellant answered that the death and injury were caused by poisoning resulting from the cattle having been dipped for ticks. The cause was submitted to a jury on special issues, and judgment was rendered on the answers thereto against appellant in the sum of $585.07. The cause was dismissed as to the Texas-Mexican Railway Company.

The jury answered that seven cows were killed and others injured through the negligence of appellant, and that the cattle were not injured through the poison in the dipping fluid. The answers of the jury were sustained hy the facts.

It is the contention of appellant that, as there was no affirmative proof made by ap-pellees of negligence upon the part of appellant which caused the damages, appellees should not recover. The evidence showed that the cattle were delivered to appellant in a sound healthy condition; that there was some delay on the way from Brownsville to New Orleans, and that on their arrival at destination seven cows were dead and others badly injured. No one representing ap-pellees accompanied the shipment.

It is the general rule that, when property is delivered in good condition to a carrier at the initial point of shipment, and is delivered at the point of destination in bad condition, negligence will be presumed, and, unless such presumption is rebutted by the carrier, a judgment for damages will be sustained. The rule is based on the ground that it is generally the case that it is impossible for a shipper to prove negligence in the handling; the carrier alone being in a position to show how the property was handled. In this case the verdict of negligence must rest on the presumption of negligence alone for, although some delay was shown, that item was not submitted to the jury. In fact, the delay is not claimed to have been the cause of the injuries to the cattle, but rough handling. Appellant introduced- evidence, which was not in any way controverted, that the cattle were not injured by any act of negligence on the part of appellant, but that the injuries were caused by arsenical poisoning resulting from the cattle having been dipped just before being placed in the cars of appellant. A veterinarian and other witnesses testified, without contradiction, that the bruises on the cattle did not result from rough handling, but resulted from the cattle having sickened from the poison and getting down and being trampled upon by the other cattle. That testimony clearly raised an issue and should have been submitted to the jury. The issue was not submitted. In view of a reversal, we will not fully discuss the evidence, which is capable of being amplified by appellees. St. Louis, B. & M. R. Co. v. Moss (Tex. Civ. App.) 203 S. W. 777.

In the case of Galveston, I-I. & S. A. R. Co, v. Canales (Tex. Civ. App.) 3 S.W.(2d) 589, there was no evidence of the condition of the property when delivered to the carrier, and therefore no basis for the presumption of negligence from bad condition when delivered at point of destination, and this court properly reversed the judgment and rendered judgment for appellant.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

While there was an allegation of delay on the part of the carrier, the question of delay was not submitted to the jury, and therefore is of no effect in the consideration. The judgment in this case must be sustained, if at all, on the presumption of negligence and rough handling on the way to New Orleans. When that presumption arose, then it devolved on the carrier to show by testimony that there was no rough handling, but that the cattle were handled in a careful manner. That is exactly what was done by the carrier, and, in addition, there was affirmative evidence to the effect that the cattle not only did not die from rough handling, but died from the effects of arsenical poisoning received through, dipping at the point of shipment. This latter testimony was clear and to the point, and unassailed and uncon-tradicted by appellees. It was calmly set aside and ignored by the jury, as was the testimony in regard to the manner in which the cattle were handled by the carrier. To hold that a railroad company cannot destroy a presumption of negligence by affirmative uncontroverted evidence is to hold that, whenever cattle are delivered to a railroad company in good condition at the shipping point, and are delivered in bad condition at the point of destination, it would amount to a declaration that a railroad company has no defense against the presumption mentioned. That is not the law, however. The evidence as to the handling of the cattle was not the opinion of witnesses, but the positive statement of facts.

It is stated that the case of Texas & N. O. R. Co. v. Hellen (Tex. Civ. App.) 47 S.W.(2d) 1112, 1113, is the exact case now before this court with the exact facts. In answer to this, we quote the language of that opinion:

“It was shown that the cattle were delivered to the carrier in good shipping condition and in apparent sound health; that they were seriously delayed in transit by the carrier; that some of them died, and others were injured in transit.

“The carrier gave no satisfactory explanation of the' slow movement, made no showing of the character of handling of the cattle during the long delays at stations en route.”

In that case there was delay; in this case no issue of delay arose. In that case there was slow motion by the train; nothing of the kind was shown in this case. In that case no satisfactory account of the trip was given; in this case the evidence was positive of careful handling upon the part of the carrier. Within bounds, the jury can ignore the testimony of witnesses, but cannot arbitrarily shut their ears to plain un-controverted evidence given by witnesses. We cannot subscribe to the doctrine that every witness for a corporation is presumed to be a liar and no heed given to his testimony. Every witness should be judged by his reputation for veracity, by his manner of testifying, and by the reasonableness of the story told. Appellees seem to be in doubt as to what the opinion decides, and we state that the judgment is reversed because the verdict disregarded the testimony and has no foundation in the statement of facts.

The motion for rehearing is overruled.


author: FUNDERBURK, Justice.

text:
    BRASHEARS v. STRAWN NAT. BANK.
    No. 1028.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1932.
    L. R. Pearson and W. S. Adamson, both of Ranger, for appellant.
    Ritchie & Ritchie, of Mineral Wells, for ap-pellee.
   FUNDERBURK, Justice.

The suit is by Strawn National Bank against Wes Marchbanks and wife and Houston Brashears. All defendants reside in Eastland county. Recovery was sought against Wes Marchbanks and Houston Brash-ears upon a note signed “Wes Marchbanks,” for the principal sum of $1,899, and for a foreclosure against all defendants of a chattel mortgage lien upon certain cattle. The petition was filed February 19,1931. On the same day Houston Brashears was duly served with citation commanding him to appear on March 2,1931. On the last-named date he filed a plea of privilege. The term of court, if not sooner adjourned, necessarily ended April 18, 1931. The only service of citation on Marchbanks and wife commanded their appearance on the 1st day of the next term, which was June 22, 1931. On April 16, 1931, plaintiff, in reply to the plea of privilege, filed an unsworn controverting plea. Before the expiration of the March term, the case was continued; the order reciting that it ivas without prejudice to the plea of privilege. On July-22,1931, a properly verified amended controverting plea was filed, and on the same day the case was again continued without prejudice to the plea of privilege. On November 6, 1931, Houston Brashears filed a motion to transfer the cause to Eastland county in accordance with his plea of privilege. The motion was overruled, as was also the plea of privilege. From the latter action, this appeal is prosecuted.

Venue was sought to be held in Palo Pinto county on the ground that Houston Brashears and Wes Marchbanks were partners doing business under the name of “Wes Marchbanks,” and that the note sued on was the note of the copartners, whereby they had contracted to make payment of the note in Palo Pinto county. It is insisted that -the evidence failed to show the existence of the partnership. We do not deem it necessary to pass upon this question, as independently thereof, we think the case should have been transferred to Eastland county. The plea of privilege in legal form was filed on appearance day, March 2, 1931. It was necessary that it be filed on that day (or the next day), in order to prevent a possible interlocutory judgment by default. In order to join an issue on the question of privilege, it was necessary that a sworn plea controverting the plea of privilege be filed within five days after the appearance day, March 2, 1931. R. S. 1925, art. 2007; Sibley v. Continental Supply Co., 116 Tex. 402, 292 S. W. 155; Dallas Joint-Stock Land Bank v. Webb (Tex. Civ. App.) 48 S.W.(2d) 434; Barnum v. Lancaster Hardware Co. (Tex. Civ. App.) 40 S.W.(2d) 1103; Clark v. Shamrock Compress, etc., Co. (Tex. Civ. App.) 31 S.W.(2d) 867; City of Dallas v. Springer (Tex. Civ. App.) 8 S.W.(2d) 772; McKittrick v. McDaniel (Tex. Civ. App.) 300 S. W. 97; Galbraith v. Bishop (Tex. Com. App.) 287 S. W. 1087.

Even if the failure of the plaintiff to file its' controverting plea within five days after appearance day did not foreclose the venue question, as we think it did, it was at all events necessary that the controverting plea have been filed at a time such as to permit the issue thereby joined to be determined at the same term of the court, unless, as provided by rule 24 of district and county courts, it bo passed by agreement of the parties, with the consent of the court. Bundrant v. Woodley (Tex. Civ. App.) 32 S.W.(2d) 664; Austin Bridge Co. v. Wren (Tex. Civ. App.) 297 S. W. 654; Box v. Deming Inv. Co. (Tex. Civ. App.) 286 S. W. 956; Davis v. Southland Cotton Oil Co. (Tex. Civ. App.) 259 S. W. 298.

Plaintiff, in filing its controverting plea only two days before the extreme limit of time the court under the law could continue, did not file same in time to have due notice given and the issue disposed of during the term, irrespective of any • condition of the court’s business.

We are also of opinion that the controverting plea, even if it had been filed in time, was insufficient to tender an issue which would have authorized the court to overrule the plea of privilege. To the plea was added the form of an affidavit not containing the name of any officer, and therefore not purporting to contain a certification of the essential facts to constitute an affidavit, as prescribed in R. S. 1925, art. 23, subd. 18. Giving full recognition to the fact that a controverting plea may, under certain circumstances, be amended, it is none the less true that the filing of such a plea, not supported by affidavit, does not raise an issue of venue. A plea lacking in the essential fact of verification is simply without effect. If the controverting affidavit is insufficient and the plea of privilege be not waived, the court acquires no jurisdiction of the person of the defendant except to transfer the case. Gorbett v. Berryman & Watters (Tex. Civ. App.) 7 S.W.(2d) 100; Witt & Sons et al. v. Stith (Tex. Civ. App.) 265 S. W. 1076; Green v. Brown (Tex. Civ. App.) 271 S. W. 394; Smith v. Daniels (Tex. Civ. App.) 288 S. W. 496.

The case last cited dealt specifically with an unsworn plea.

For these reasons we are of opinion that the judgment of the court below should be reversed, and judgment here rendered ordering a transfer of the case, all of which is accordingly so ordered.


author: WAJ/KER, Justice.

text:
    TEXAS PIPE LINE CO. v. ENNIS.
    No. 2319.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 2, 1933.
    Rehearing Denied Feb. 15, 1933.
    Wm. K. Hall, of Houston, for appellant.
    Adams & McAlister, of Nacogdoches, for appellee.
   WAJ/KER, Justice.

In Texas Pipeline Company v. Ennis (Tex. Civ. App.) 44 S.W.(2d) 773, the appellant in that case is the appellant in this case, and the appellee in that case is the appellee in this case. That case was a condemnation proceeding in the county court of Nac-ogdoches county, wherein appellant was awarded an easement across appellee’s land and appellee was awarded damages in the sum of $417. We refer to our opinion in that case for a statement of the facts and issues sustaining the condemnation and the award of damages.

This suit was by appellee against appellant for specific items of damages for the construction, maintenance, and operation of its -pipe line across his -land, in addition to the value of the easement, and which he alleged were not involved in the condemnation proceedings. Appellant’s pipe line was constructed across appellee’s land, over the easement awarded it in the county court judgment, before the trial of that case. The work was done for appellant by an independent contractor, who did the work in accordance with plans and specifications furnished by appellant. When the work was completed, appellant accepted the pipe line from its contractor and the specific items of damage, hereinafter mentioned, accrued after the pipe line was accepted and while it was being maintained and operated by appellant. On these facts appellant answered appellee’s petition by a plea in abatement to the effect that all damages sued for in this case were involved in the county court proceeding; and, second, if in error as to any specific item of damage, such damage was the proximate result of the negligence of the independent contractor, for which it was in no way liable. Tírese special pleas were denied by the trial court, and, upon the fact issues submitted to the jury, appellee’s damages were assessed at the sum of $367.50, for which judgment was entered in his favor.

The appeal is by appellant upon propositions asking only that the judgment of the lower court be reversed as a whole and rendered as a whole in its favor. There is no proposition of reversal and remand and no proposition attacking any specific item of damage pleaded by appellee. Appellant thus states its position: “We are not complaining of the verdict of the jury if appellee is, under the law, entitled to recover anything in this suit.” Under this proposition we mention the following specific items of damage pleaded by appellee, submitted to the jury and found in appellee’s favor: (a) Because of the manner in which the pipe line was constructed, appellee’s land was caused to “wash,” to his damage, $50, and (b) to overflow, to his temporary damage, $75; (c) loose dirt left on appellee’s premises was “scattered” over his land, to his damage, $50.

Under the facts of this case, appellant presents a mere abstract question of law when it says that it was not liable to appel-lee for the damages suffered by him as the proximate result of the negligence of its independent contractor. This follows because these items of damage accrued to appellee after appellant took over its pipe line from its independent contractor and as a proximate result of the manner in which it maintained and operated the pipe line. Appellant was thereby made liable for these damages.

The question then is whether or not these items of damage were involved in and a part of the damages awarded appellee in the condemnation suit. We think this question must be answered in the negative. The specific items of damage under discussion here were the result of wrongs committed by appellant after it took over the operation of its pipe line. Under the following rule, announced by 16 Tex. Jur. 984, Eminent Domain, § 305, appellant was liable for these damages: “The rule is that even if the con-demnor has been guilty of wrongdoing prior to the final award, damages are not recoverable for the tort in the condemnation proceedings ; the owner must himself sue therefor.” The following authorities fully sustain this rule: Stakes v. Houston North Shore Railroad Co. (Tex. Civ. App.) 32 S.W.(2d) 1110; Throckmorton County v. Howsley (Tex. Civ. App.) 28 S.W.(2d) 951; City of San Antonio v. Fike (Tex. Civ. App.) 211 S. W. 639; Gregory v. G. & I. Ry. Co., 21 Tex. Civ. App. 598, 54 S. W. 617.

Relying upon the rule that parties may agree that the issue of damages, proximately resulting from the construction, operation, and maintenance of the improvements, may be reserved from the award by the commissioners and the determination of the issue of condemnation in the county court on appeal (Reg. v. Howard, 6 Can. Exch. 420), appellee had submitted to the jury the following question, which was answered in the affirmative:

“Do you find from the preponderance of •the testimony that the plaintiffs and The Texas Pipe Line Co., had an agreement before the condemnation proceedings that the damages as would be sustained in the construction of the pipe line through plaintiffs’ premises were to be adjusted between the parties after the easement was had through plaintiffs’ premises by the condemnation?

“You will answer this special issue ‘yes’ or ‘no’ as you may find the .facts to be.”

Appellant attacks this question and the jury’s answer as being without support, both in the pleadings and in the evidence. We do not determine the merits of this proposition because, under our holding herein, appellant is liable for all the damages awarded by the jury. It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.


author: ALEXANDER, Justice.

text:
    SAN ANTONIO PUBLIC SERVICE CO. v. SMITH et al.
    No. 1318.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied Feb. 23, 1933.

      Templeton, Brooks, Napier & Brown, of San Antonio, for appellant.
    P. H. Long, of San Antonio, for appellees.
   ALEXANDER, Justice.

Mrs. Sam Smith’s automobile collided with a street ear, resulting in personal injuries to Mrs. Smith. She and her husband sued the street car company for damages. The jury, in answer to special issues, found that the defendant’s servant in charge of the street car was negligent in failing to yield the right of way to Mrs. Smith, and that said employee failed to keep such a lookout for Mrs. Smith as a person of ordinary prudence would have kept, and that each of such acts of negligence directly caused or directly contributed to the injuries sustained by Mrs. Smith. The jury assessed the damages at $4,000, and judgment was entered for the plaintiffs accordingly. The defendant appealed.

The appellant’s street car track, which-is a single track, runs north on New Braun-fels avenue to Grayson street, where it turns west. On the occasion in question the streetcar had proceeded north on New Braunfels avenue to the south line of Grayson street where it stopped to await a change in the signals. Mrs. Smith wa? proceeding south on New Braunfels avenue. Whether she had previously reached the north line of Grayson street and had stopped to wait until the signals changed, or whether she came upon the scene after the signals changed, is a disputed question. When the signals changed, the street car turned to the left on Grayson street. Before it fully completed the turn, the rear end of the street car came in contact with the front end of Mrs. Smith’s automobile. There was considerable dispute in the testimony as to who was to blame for the collision. Some of the witnesses testified that the street car turned the corner suddenly and so quickly after the signals changed as not to give Mrs. Smith a reasonable opportunity to pass on the west side of the street car, and that by reason thereof she was forced into a position where she could not avoid the collision. Other witnesses testified to facts showing that Mrs. Smith negligently ran her automobile against the rear end of the street car. All of the defendant’s employees who were in charge of the street car and several of the passengers who were on the street car at the time of the collision testified in appellant’s behalf. With the record in this condition, counsel for appellees in his argument to the jury, said in part as follows:

“Now, there has been a great deal of effort on my part to try to determine just how many passengers there were on that street car. I wanted the jury to have all the facts before them, and if there were any passengers on that car that knew anything about this case, the undisputed evidence in this case shows that the street car men got the names of those passengers, and I wanted those passengers to come in here and tell you gentle-men what they saw, so that you could have all the facts before you. Gravel and Perry both testified that after this car stopped down there at the stop, a lady passenger got off, that she was the only passenger they saw get off the car. Did they produce that lady passenger? Isn’t it quite likely, gentlemen, that if that lady passenger had been produced on this witness stand, that she might have told you something that transpired there a little different from their star witness, Mr. Henson? * * *

“Now, then, where are the other passengers on the car, if there were any there? Where is this lady passenger? They got her name; the conductor and the motorma.n said that the names were taken. Why isn’t she produced here so as to tell you gentlemen what she saw? And not having been produced, you gentlemen have the right in your own minds to' conclude that the reason they did not produce her was because her testimony was not favorable to them, but would favor Mrs. Smith. * * *

“But they never have accounted for why that lady passenger wasn’t brought in here. We didn’t have her name. And if she had been brought in here you gentlemen may rest assured that you have the right to consider that whatever that lady passenger may have said would have been favorable to this little woman — and that accounts for her absence.”

We believe that this argument requires a reversal of the case. The woman passenger who was not placed on the witness stand was not in the employment of the company, and did not appear to be under its control. There is nothing in the record to show where she lived, nor that she was within the jurisdiction of the court at the time the case was tried. Neither was there any evidence that she saw the collision nor that she was in possession of any other information material to the case. The fact that the street car company did not find this missing passenger and place her on the witness stand was not a legitimate subject for comment, and it was improper for counsel for appellees to tell the jury that they could consider that whatever the missing witness would have testified to would have been favorable to appellees. What such witness would have testified to if she had been placed on the witness stand was a matter of pure conjecture. Argument very similar to this has been condemned many times. Metropolitan Street Railway Co. v. Roberts (Tex. Civ. App.) 142 S. W. 44; Lottman v. Cuilla (Tex. Com. App.) 28S S. W. 123; Robbins v. Wynne (Tex. Com. App.) 44 S.W. (2d) 946; Proctor v. Cisco & N. E. Ry. Co. (Tex. Com. App.) 277 S. W. 1047; Morgan v. Maunders (Tex. Civ. App.) 37 S.W.(2d) 791.

Mrs. Smith’s chief complaint was that the injury to her produced a miscarriage. Two physicians, Dr. Coyle and Dr. Kelley, testified that about five years previous to the accident in question they performed an operation on Mrs. Smith which would prevent pregnancy. Their evidence was supported by the hospital records made by Dr. Coyle at the time of the operation. There was no material conflict in the testimony of these two witnesses, and there was no circumstance whatever indicating that the hospital records had been altered. Counsel for appellees in his argument to the jury asserted that the facts stated in the hospital records as to Mrs. Smith’s previous history and as to the character of operation performed on her were untrue, and accused Dr. Coyle of deliberately lying, and charged that he had altered and' falsified the hospital records for the deliberate purpose of defeating a recovery by Mrs. Smith. Among other things, he said: “I still firmly believe that that record was made by Coyle after he found out it would be used in this suit, and that he deliberately falsified the records.” He referred to the fact that the nurses and others were present at the time the operation was performed, and asked why the appellant had not brought them into court to prove the kind of operation that was performed. Proceeding further, he said: “Don’t you know that if those other witnesses were not produced, that it was because they could not get the favorable testimony they wanted?” Such argument was improper and wholly without justification. The nurses and others who witnessed the operation were as much within the control of appellees as they were within the control of the appellant, and counsel had no right to assume that their testimony would have been favorable to appellees. His attack upon Dr. Coyle, accusing him of having altered and falsified the hospital records, was wholly without justification. When a witness takes the stand and testifies in a case, and there are circumstances reasonably indicating that he has falsified, an attorney is justified in exposing the falsehood and in criticizing the witness for his conduct; but when a witness, in order that the ends of justice may be subserved, is compelled, under the process of the court, to appear and testify, and there are no circumstances in the record justifying the inference that he has falsified, he is entitled to the protection of the court, and an attorney should not be permitted to thus vilify the witness.

The bill of exception shows that counsel for appellant interrupted appellees’ attorney in his argument and protested said statements, but, before he could complete his objections, was informed by the trial court that it was not the proper timé to make such objections, and that he should not thus interrupt the attorney for the appellees. The court should have sustained said objections and instructed the jury not to consider such argument.

The trial court, in submitting the case to the jury, submitted special issue No. 1, which was as follows: “Was the defendant negligent in failing to yield the’right of way to plaintiff, Mrs. Sam Smith? ”

This issue was not preceded by any issue inquiring whether or not the defendant’s employee failed to yield the right of way. We are of the opinion that this issue was upon the weight of the evidence and improperly assumed that the appellant’s employee who was in charge of the street car in question failed to yield the right of way to Mrs. Smith.

The other errors assigned will not likely arise in the same way on another trial, and we do not consider it necessary to discuss such assignments. On account of the errors herein pointed out, the judgment of the trial court is reversed, and the cause remanded for a new-trial.


author: O’QUINN, Justice.

text:
    SPRADLEY v. HALL.
    No. 2275.

      Court of Civil Appeals of Texas. Beaumont.
    Feb. 15, 1933.
    For original opinion, see 54 S.W.(2d) 1054.
    Adams & McAlister, of Nacogdoches, for appellant.
    Hodges & Greve, of Nacogdoches, for ap-pellee.
   O’QUINN, Justice.

Appellant has filed an extensive and well-briefed motion for rehearing. This has been supplemented by oral argument and also written argument urging said motion. The matters insisted upon are the same as on original hearing. Four questions are vigorously urged.

(a) It is insisted, as before, that, as the original way was supposed to be along the dividing lines of the various adjoining landowners, and as the line between the .Combs and Neal surveys, the east line of the one being thé west line of the other, are involved, the location of said line was a question of fact for the jury, and the court was not authorized in taking the case from the jury and instructing a verdict. This is but insisting again that the case was one of boundary, and the boundary line of the two surveys would locate the road, and that there was a dispute as to its true location on the ground. In our original opinion we held that “the true location of the road, as first established, dedicated, and used, is decisive, for wherever it was located controls.” Wa still think that we were correct in so holding. Whether the old road, as first established, was absolutely on the dividing lines between the several landowners or not, is not the question. The true location of the old road, wherever situated, as to land lines, controls.

(b) It is also contended that the evidence, without dispute, shows the road to have been abandoned. This contention is based upon the fact that some years after the road was established the commissioners’ court of Nacogdoches county recognized it as a public road, appointed an overseer, and apportioned hands to work same, and, after it so remained for several years, the commissioners’ court discontinued the control of the road, and no longer apportioned hands to work same; in other words, it then ceased to be recognized as a public road. This was not such an abandonment of the use of the road by those residing on same as to work a legal discontinuance authorizing its obstrutition by adjoining landowners. People who resided on said road and wished to continue its use and so used it could not be thus deprived of its use.

(c) It is further contended that the fencing of a portion of the road by appellant, in order to straighten out his fence line, by leaving sufficient space for persons traveling the road to go around his fence, was not such obstruction as warranted judgment ordering the obstruction removed, and that same was a question for the jury. As we before stated, and held, the obstruction extended quite or nearly all the way over the traveled bed of the road, and that this was a material and substantial interference with the use of the road. The fact that appellant may have left space sufficient for travelers to have gone around his fence is no defense to appellee’s suit to open the road as it existed before.

(d) It is urged that the judgment designating the portion of the road to be opened is not supported by any pleading or proof, and that, if the road is opened, as per the court’s judgment, it will be the granting of another and different right of way to the one pleaded and prayed for. We do not think the pleadings or the facts support this contention. The location of the road was described in the petition, and the judgment specifically sets out the portion to be opened by describing it to begin at the center of the road and confining-the side lines, or boundaries, to the proper number of feet on each side of the center of the road. We are unable to see any variance) in location. In fact, the judgment specifically confines the part to be opened to the actual roadbed, as it existed on the ground.

We have carefully considered the matters presented in the motion for rehearing, and adhere to our former holdings. The motion is in all things overruled.