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Tex.)

BARNES & MITCHELL V. CAMPBELL

445

ing been made by L. W. Campbell, Jr., with contained in said addition set forth and deBarnes & Mitchell.

scribed." We gather from the sworn petition, an- - Said plot or tract of land is separated from swers and evidence introduced that Barnes the business part of Dallas on the north by & Mitchell in 1911 owned a 40-acre tract of the Santa Fé Railroad, and Merlin street had land. They had it laid off into blocks, lots, only been opened up to said railroad and the and streets and alleys, and had a map there extension of said street, and the building of of placed upon the records of Dallas county. a viaduct was greatly desired for the acSaid plat so mapped and recorded was desig-commodation of those purchasing lots in said nated "Barnes & Mitchell's Grand Avenue addition. Barnes & Mitchell resided in the Addition." This map did not designate a state of Oklahoma, and Ben T. Seay, their “viaduct” at Merlin street, as did a subse- attorney in fact, looked after their interests quent map recorded a few weeks thereafter, in Dallas and superintended the sale of lots of which a copy is hereto attached.

and to such matters as pertained to said ad

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At the time the last map was filed, to wit, , dition. During the year 1912, at different December 2, 1911, there had been filed for times, L. W. Campbell, Jr., purchased record a deed of dedication from Barnes & through Ben T. Seay all the lots in said adMitchell to the city of Dallas, which deed dition remaining on hand; the consideration was dated November 24, 1911, and had been being cash and notes for deferred payments. accepted by said city. Said deed, after set- Said notes were indorsed by Campbell-Harting out a strip of land for the extension of ris Lumber Company, which notes were Merlin street, recites:

placed with the Dallas Trust & Savings Bank "Whereas, there is to be built a viaduct on to secure an indebtedness due it by Barnes and across the G., C. & S. F. R. R. tracks and

& Mitchell. right of way at the point herein described as the N. end of the strip of land herein conveyed and On December 27, 1912, the board of commisdedicated, the said grantors herein, for and in sioners of the city of Dallas passed an orconsideration of the premises herein, hereby cov-dinance granting to the Gulf, Colorado & enant and agree and do hereby grant to the city Santa Fé Railroad Company the privilege of Dallas the right and privilege to construct an adequate and suitable approach to the said pro- of constructing and operating certain switch posed viaduct at its south approach, located and tracks along its line of road just north of situated on the N. end of South Merlin street, as herein set out, and a sufficient portion of said the boundary line of said addition in conland is hereby conveyed to the city of Dallas sideration of said

Dallas sideration of said railway company confor such purpose, and we, the owners and hold-structing an overhead viaduct across its ers of said land, hereby expressly give the tracks on Merlin street for the purpose of city of Dallas the right and privilege to con

Said ordinance was struct said approach and waive any claim for extending said 'street.

company, but said viaduct has never been ger and freight depot upon the land, which constructed up to this time, nor any effort representation had been breached. The court made to do so.

held: Appellee sold and conveyed a number of "That ordinarily a promise to perform some lots to individuals, some of whom have built act in the future, although made by one party upon them. Appellee's petition, in effect, into the contract, will not amount to fraud in

as a representation to induce the other to enter charges that he was deceived and induced legal acceptation, though subsequently the promto enter into the contract for the purchase of ise is without any excuse, entirely broken and said lots for the following reasons: (1) That nonfulfilled. This is a plain and well-establishthe map of said plat first recorded did not troversy; otherwise every breach or a contract

ed proposition about which there can be no conhave written thereon the word "viaduct," as would amount to fraud"---citing Bigham v. Bigindicated on the second plat recorded; (2) ham, 57 Tex. 238. that the deed of dedication made by Barnes The court, however, held that, while the & Mitchell to the city of Dallas recited that above was the true rule, there was a wella viaduct was to be built across the Santa founded exception, though there is a conflict Fé track on Merlin street; and (3) that said in the authorities upon the question. The grantors stated that a contract had been exception is that where the parties make the made to build said viaduct, and that it was representation with the intent to deceive and assured by them that said viaduct would be defraud with no intention to perform the constructed across the railroad tracks on promise. Merlin street.

[4] We think there is in this case a total [1, 2] Appellee evidently knew at the time failure to show any purpose to deceive or of purchase of the lots that the viaduct was defraud. not then constructed. He should not have Appellee read in evidence the affidavit of been deceived by the recitations in the deed Ben T. Seay, president, and T. E. Cranfill, of dedication made by Barnes & Mitchell to vice president, who compose the firm of Seay. the city of Dallas that they were to construct Cranfill Company, and represented the said the viaduct. While it was therein recited Barnes & Mitchell in platting and laying off that a viaduct was to be constructed, said re- the streets and alleys and in all other matcital was made merely in connection with the ters pertaining to the establishment of said covenant conveying the right of way over the addition, and represented them in making property and releasing it from all damages sales of said lots, which affidavit states, in that might accrue to adjoining property that effect: While the plat was being made and might arise from the construction of the before it was placed on record, negotiations viaduct, and it is clear therefrom that the had begun between the city of Dallas and city was to see to the construction. There the said railway company looking to the is no express agreement alleged in the peti- building of said viaduct. The city required tion that Barnes & Mitchell were to construct the deed of dedication from Barnes & Mitchthe viaduct, and if they stated that an agree- ell conveying the right of way, waiving all ment then existed to construct the same, and damages and widening Merlin street from said agreement did not then exist, an agree- 50 to 60 feet. This necessitated the making ment was made some time thereafter to so of a new map, which was recorded, as beconstruct between the city of Dallas and the fore stated, on December 27, 1911. The deed railway company, which rendered said state- and map were the result of the joint acts of ment harmless, and affords appellee no the city and the said Barnes & Mitchell, ground for relief.

and were, in fact, contemporaneous trans[3] This leaves for consideration the ques- actions. That the filing of said map for rection of assurance that the viaduct would be ord showing the viaduct was not done until built, which assurance was made by Ben T. the said city had prepared said deed, and Seay, who was the authorized agent of was done wholly and solely in reliance upon Barnes & Mitchell, to make sales of said lots, the good intentions of said city and said and did, in fact, make the sales. This as- railway company that they would proceed surance was not a representation that the with the building and completion of the viaviaduct was then in existence, but that it duct without unusual delay. That in placwas to be erected in the future. Appelleeing said lots upon the market and in selling may have relied on such assurance, and be- same to various parties they advertised and lieved the viaduct would be built at some stated orally to said purchasers that said future time. But was such reliance and the viaduct was assured and would be built withfailure to build such as authorized a recov- in a reasonable time, which statements and ery in an action for rescission of a contract advertisements were based not only upon the for the sale of land? We think not.

contract made in said deed, but on the oral In Railway Company v. Titterington, 84 assurance of the members of the board of Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, commissioners and representations of said where action was for the rescission of a railway company that said viaduct would be sale of land, the deed conveyed the right of built and said acts were done by said agents way over the land, and fraud was charged in perfect good faith, and affiants believed a in that the agent represented that the com- majority of the purchasers bought upon the

Tex.)

BROOKS v. STATE

447

board of said city, and the representations submitted to the court a written motion for of the representatives of the railway com- an instructed verdict, and began argument pany. The existence of such a viaduct would on said motion, which argument lasted about greatly enhance the value of said lots. This an hour, during which time neither the deaffidavit is uncontradicted, and we must ac- fendant nor the jury was present in the cept it as embracing the true facts in regard courtroom. As the defendant went in deto the question of fraud and deceit.

fendant's attorney was just concluding his As we understand the transaction, there is argument for an instructed verdict. Defendnothing in the record to show deceit or fraud ant's attorney began said argument about on the part of Barnes & Mitchell or their 2 o'clock. This is the agreed statement of agents, but, on the other hand, it shows they facts approved by the county judge in regard acted in perfect good faith in trying to pro- to that matter. It is also stated in the gencure the building of the viaduct.

eral statement of facts, which was filed on Believing the injunction was improperly April 13th, also made before the adjourngranted, it will be dissolved.

ment of court, that at 12:30 p. m. the court adjourned until 2 p. m., at which hour the

defendant's attorney began his argument for BROOKS v. STATE. (No. 3668.) an instructed verdict, and concluded said (Court of Criminal Appeals of Texas. Oct. 13, argument at 3 p. m. At the conclusion of 1915.)

the argument the jurors and the defendant CRIMINAL LAW C 636–TRIAL-NECESSITY OF were brought into the courtroom.

So the DEFENDANT'S PRESENCE. L'nder Code Cr. Proc. 1911, art. 616, pro

fact seems to be uncontroverted that defendviding that in all prosecutions for felonies de- ant was locked up in jail, as the deputy fendant must be personally present on the trial, sheriff said, "good and tight,” at the time and that he must likewise be present in all cases his case was being argued to the court on the of indictment or information for misdemeanors, where the punishment or any part thereof is im question of an instructed verdict in his faprisonment in jail, where on a trial for a misde- vor. There was no question in this case meanor the jury, by the terms of the statute, like that in Killman v. State, 53 Tex. Cr. assessed defendant's punishment at six months R. 570, 112 S. W. 92. In that case the dein jail in addition to a fine, defendant's absence from the courtroom while his counsel was argu

fendant voluntarily absented himself under ing a motion for an instructed verdict, in the the circumstances detailed in that opinion, absence of the jury, required a reversal; de- and it was held, under the circumstances of fendant having been locked in jail, and not vol- that case, it was not reversible error, but in untarily absent. [Ed. Note. For other cases, see Criminal

this case defendant's absence was forced by Law, Cent. Dig. $$ 1465–1482, 2120; Dec. Dig. being locked up by the deputy sheriff in the Om 136.]

county jail. Prendergast, P. J., dissenting.

The Revised Criminal Statutes 1911, art.

646, provide: Appeal from Maverick County Court; Ben

"In all prosecutions for felonies, the defendV. King, Judge.

ant must be personally present on the trial, Z. M. Brooks was convicted of an offense, and he must likewise be present in all cases of and he appeals. Reversed and remanded. indictment or information for misdemeanors

where the punishment or any part thereof is imDavid E. Hume, of Eagle Pass, for appel- prisonment in jail.” lant. C. C. McDonald, Asst. Atty. Gen., for

Part of the punishment in this case is imthe State.

prisonment. By the terms of the statute DAVIDSON, J. Appellant was convicted the verdict of the jury alloted defendant six for soliciting and procuring Clara Brooks, months in the county jail in addition to a a female, to be at a particular place, describ- fine of $50. The Killman Case, supra, is not ing the place, for the purpose of meeting and in point. The other authorities collated having unlawful sexual intercourse with under the statute, we think, are in point, and Percy Hamilton, a male person.

require a reversal of the judgment. There was a square issue between the

For this reason, the judgment will be restate and the defendant as to this matter versed, and the cause remanded. on the facts. There is an issue presented by the record that defendant was absent during PRENDERGAST, P. J. (dissenting). The a part of the trial of his case. The facts in agreed statement of facts shows that all that reference to this matter show that during the was done during appellant's absence was argument of defendant's attorney for in- that "at about 1:55 p. m. defendant's attorstructed verdict—that is, between the hours ney submitted to the court a written motion of 2 p. m. and 3 p. m.—the defendant was for an instructed verdict, and began argulocked up in jail. As the deputy sheriff tes- ment on said motion, which argument lasted tified, he was “locked up good and tight in about an hour, during which time neither the the county jail.” The jury went back into defendant nor the jury were in the courtthe courtroom at about 3 o'clock, about the room”-simply that, and nothing more. No same time the officer brought in the defend complaint of this was made at the time, and

About 1:55 p. m. defendant's attorney no objection thereto was made until after the trial in the motion for a new trial. This is [1] The statement of facts is made up of a misdemeanor case. I think this was no questions and answers. The motion of the such proceeding or part of the trial as the Assistant Attorney General to strike out and statute contemplates cannot be had in the not consider the evidence will be sustained. defendant's absence. No possible injury is Under all the authorities, and under our law, shown or even claimed to him. It was too a statement of facts in this condition cannot late to complain after the trial.

be considered. There is no statement by the judge in approving the statement of facts that

this was necessary, and in fact it seems not HAWKINS v. STATE. (No. 3684.) to have been necessary to so arrange the evi(Court of Criminal Appeals of Texas. Oct. 13, dence. 1915.)

[2, 3] Appellant requested the court to 1. CRIMINAL LAW Ow1098-APPEAL-STATE- charge the jury that the burden is on the MENT OF FACTS-FORM, A statement of facts, made up of questions This charge was refused.

state, and never shifts to the defendant. and answers, cannot be considered; there being This charge was refused. In the charge of no statement by the judge in approving the the court this language is found: "In all statement that this was necessary, and it not criminal cases the burden of proof is on the appearing to have been necessary.

state." Usually this is sufficient, and will be [Ed. Note.-- For other cases, see Criminal treated so, unless there is some peculiarity Law, Cent. Dig. $S 2863, 2865; Dec. Dig. 1098.]

about the case that will require the court to 2. CRIMINAL LAW Om778 INSTRUCTIONS

give the other phase of it, to wit, that the BURDEN OF PROOF.

burden never shifts to the defendant. There An instruction that in all criminal cases the are instances in which the burden is or may burden of proof is on the state is usually suffi- be placed on the defendant; but that does cient, unless there is some peculiarity about the not include any case until after the state has case requiring the court to charge further that the burden never shifts to defendant, especially made out a case overcoming the presumption where there is no proper statement of facts. of innocence and reasonable doubt. That

[Ed. Note.-For other cases, see Criminal rule usually applies to special matters, like Law, Cent. Dig. $$ 1846-1852, 1854–1857, 1960, nonage and insanity. We think that the 1967; Dec. Dig. Cm778.]

court gave a sufficient charge on this propo3. CRIMINAL LAW Om330—BURDEN OF PROOF: sition as presented by this record, and espe

There are instances in which the burden of proof is, or may be, placed on defendant; but cially in the absence of a statement of facts. this usually applies to special matters, like non- [4, 5] The district attorney made some age and insanity, and does not include any case rather vigorous remarks with reference to until after the state has made out a case over the negro race, defendant being a negro, coming the presumption of innocence and reasonable doubt.

and alluded to that race in harsh and bitter [Ed. Note. For other cases, see Criminal terms. Objection was urged to this by appelLaw, Cent. Dig. § 721; Dec. Dig. Omw 330.] lant's counsel. The bill recites that the court 4. CRIMINAL LAW Cm1119 - RECORD - MAT- did not stop the district attorney, nor did he TERS PRESENTED FOR REVIEW.

charge the jury to disregard the remarks. Where defendant, a negro, received the mini- However that may be, as the record is premum punishment for the offense of which he was convicted, and there was no statement of facts sented, the defendant received the minimum which could be considered, the prosecuting attor- punishment. The facts may have been overney's allusion in harsh and bitter terms to the whelming. The error is not thought to be of negro race was not ground for reversal, as the such a nature, under the circumstances, as to facts may have been overwhelming.

[Ed. Note.-For other cases, see Criminal require a reversal. Had the defendant reLaw, Cent. Dig. $8 2927–2930; Dec. Dig. Om ceived a punishment above the minimum, we 1119.]

might have quite a different proposition, and 5. CRIMINAL LAW 720 - ARGUMENT OF would, in the mind of the writer, have a very COUNSEL.

serious question in the case. We wish again Prosecuting attorneys in their argument to admonish the prosecuting officers against should confine themselves to legitimate deductions from the facts as they apply to the law of such speeches. Such remarks ought not to be the case.

permitted, nor ought they to be indulged, and [Ed. Note. For other cases, see Criminal we again request the trial courts to use juLaw, Cent. Dig. SS 1670, 1671; Dec. Dig. Om dicial authority in regard to these matters. 720.]

They are unnecessary, and often lead to reAppeal from District Court, San Patricio versal of cases, when without it such reverCounty; F. G. Chambliss, Judge.

sal might not occur. Prosecuting officers John Hawkins was convicted of robbery, should confine themselves to legitimate deducand he appeals. Affirmed.

tions from the facts as they apply to the law C. C. McDonald, Asst. Atty. Gen., for the of the case. This is enough, and a conviction State.

secured by means independent of the admit

ted facts frequently brings about reversals. DAVIDSON, J. Appellant was convicted It

Appellant was convicted It is, however, under the circumstances, of robbery with firearms; his punishment be- thought not advisable to reverse this judging assessed at five years' confinement in the ment for these improper remarks. penitentiary.

The judgment is ordered to be affirmed.

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Ky.)

GOUGH v. ILLINOIS CENT. R. CO.

449

construction or the validity of a statute or GOUGH v. ILLINOIS CENT. R. CO.

the construction of a section of the Consti(Court of Appeals of Kentucky. Nov. 5, 1915.) tution is necessarily and directly put in issue, 1. APPEAL AND ERROR Omn 2-RIGHT TO AP- and a correct decision of the case cannot be PEAL-WHAT LAW GOVERNS.

The law in force at the time an appeal is had without passing on the validity of the granted controls the right, as it is a privilege statute or construing the section of the Conwhich can be given, taken away or restricted stitution, or statute involved. by legislative authority.

Subsection 3 of section 950, supra, regulates [Ed. Note. For other cases, see Appeal and the manner in which this court may grant Error, Cent. Dig. 88 3–7, 1882, 2421 ; Dec. Dig. an appeal when the amount in controversy Omm2.] 2. APPEAL AND Error ww45—RIGHT TO AP- further provides, in reference to when the

is as much as $200 and less than $500. It PEAL-DISMISSAL.

Ky. St. $ 950, subsec. 1, declares that no amount in controversy is as much as $200 appeal shall be taken to the Court of Appeals and less than $500: from a judgment for the recovery of money or

"If the court decides, after an examination of personal property if the value be less than $500, the record, that the appeal should not be grantexclusive of costs, save that the Court of Ap-ed, the motion shall be overruled without a writpeals may grant an appeal, when satisfied that

ten opinion." the ends of justice require the judgment to be reversed, when the amount exceeds $200, or This has reference to the motion for an when the construction of a statute or the Constitution is in issue. Subsection 3 provides that, appeal in this court, as provided by said subif the court is satisfied that an appeal should not section 3, supra, and rule 20 of the court. be granted, the motion therefor, where the Under a former statute, which fixed the amount in controversy is less than $500, should minimum sum at $200, from a judgment eibe overruled without a written opinion. The ther for granting or refusing a recovery, an amount in controversy as shown by the record was less than $500, and the bill of exceptions appeal could be taken, it was held by this showed that neither the construction nor va- court that, either in the case of an appeal lidity of a statute or of the Constitution was being granted by the court, which rendered involved, and that there was no error prejudi- the judgment from which the appeal was takcial to the substantial rights of appellant. Held, that the appeal must be dismissed. en, or where granted by the clerk of this

[Ed. Note. For other cases, see Appeal and court, that if the record demonstrated conError, Cent. Dig. $$_152–155. 157. 158, 172–clusively, that the amount in controversy 176, 178–184, 186–197; Dec. Dig. Cmw 45.]

was, in fact, less than $200, the appeal would Appeal from Circuit Court, Graves Coun- be dismissed upon or without motion. Thomty.

as v. Thomas, 162 Ky. 630, 172 S. W. 1054; Action between Minnie C. Gough and the Louisville Property Co. v. Whitley County Illinois Central Railroad Company. From a Stave Co., 163 Ky. 336, 173 S. W. 783; Smith judgment for the latter, the former appeals. v. C. & 0. Ry. Co., 118 Ky. 825, 82 S. W. 410; Appeal dismissed.

K. & P. Lumber Co. v. Sledge, 143 Ky. 137, W. J. Webb, of Mayfield, for appellant. 135 S. W. 1030; Renaker et al. v. Adams et Gus Thomas and Robbins & Robbins, all of al., 146 Ky. 513, 142 S. W. 1013; Morgan v. Mayfield, and Trabue, Doolan & Cox, of Johnson, 158 Ky. 417, 165 S. W. 649; ChenLouisville, for appellee.

ault v. Bank of Arlington, 159 Ky. 104, 166

S. W. 789. These decisions rested upon the HURT, J. [1] The appeal in this case was fact that, if the amount in controversy was granted on the 3d day of December, 1914. not as much as $200, this court had no jurisThe law in force at the time an appeal is diction. These decisions further held that granted controls the right of appeal. Hale the value in controversy must be the actual v. Grogan, 106 Ky. 311, 50 S. W. 257, 20 Ky. amount of the controversy, in fact, regardLaw Rep. 1857. The right of appeal is a less of the claims of the parties. privilege and can be given, taken away, or Under the present statute governing the restricted by the legislative authority.

right of appeals, this court, in an action for [2] Section 950, subsection 1, Ky. Statutes, the recovery of money, does not have jurisprovides among other things:

diction of an appeal unless the value of the “But no appeal shall be taken to the Court of amount in controversy is not less than $500, Appeals as a matter of right from a judgment or unless the value of the amount in controfor the recovery of money or personal property, or any interest therein, or to enforce any lien versy is as much as $200, and the court is thereon, if the value in controversy be less than satisfied, from an examination of the record, five hundred dollars, exclusive of interest and that the ends of justice require the judgment costs."

appealed from to be reversed, or the conThe section, supra, further provides that struction or validity of a statute or the conthe Court of Appeals may grant an appeal struction of a section of the Constitution is when it is satisfied from an examination of necessarily and directly put in issue, and a the record that the ends of justice require correct decision of the case cannot be had that the judgment appealed from should without passing upon the validity of the statbe reversed, if the value of the amount or ute or construing the section of the Constithing in controversy, exclusive of interest tution or statute involved. and cost, is as much as $200, or when the The evidence contained in the bill of ex

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

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