VIADUCT 25 OAK LANE 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. Addition." This map did not designate a "viaduct" at Merlin street, as did a subsequent map recorded a few weeks thereafter, of which a copy is hereto attached. Barnes & Mitchell resided in the state of Oklahoma, and Ben T. Seay, their attorney in fact, looked after their interests in Dallas and superintended the sale of lots and to such matters as pertained to said ad 50 " " " " " 50 46.7 49.9 50 ཆ[$[%[ ༠ 3 5 " 6 " " " " " " 50 STREET 4 8765 50 50 50 25 10 12 8 7 6 1 4 3 2 1 854 854 3 150 JEFFRIES ST. OAKLAND AVE. 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 was dated November 24, 1911, and had been accepted by said city. Said deed, after setting out a strip of land for the extension of Merlin street, recites: dition remaining on hand; the consideration being cash and notes for deferred payments. Said notes were indorsed by Campbell-Harris Lumber Company, which notes were placed with the Dallas Trust & Savings Bank to secure an indebtedness due it by Barnes & Mitchell. "Whereas, there is to be built a viaduct on and across the G., C. & S. F. R. R. tracks and 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, tor 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 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 conSaid ordinance was struct said approach and waive any claim for extending said street. MEYERS ST, 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. Appellee sold and conveyed a number of lots to individuals, some of whom have built upon them. Appellee's petition, in effect, charges that he was deceived and induced to enter into the contract for the purchase of said lots for the following reasons: (1) That the map of said plat first recorded did not have written thereon the word "viaduct," as indicated on the second plat recorded; (2) that the deed of dedication made by Barnes & Mitchell to the city of Dallas recited that a viaduct was to be built across the Santa Fé track on Merlin street; and (3) that said grantors stated that a contract had been made to build said viaduct, and that it was assured by them that said viaduct would be constructed across the railroad tracks on Merlin street. [1, 2] Appellee evidently knew at the time of purchase of the lots that the viaduct was not then constructed. He should not have been deceived by the recitations in the deed of dedication made by Barnes & Mitchell to the city of Dallas that they were to construct the viaduct. While it was therein recited that a viaduct was to be constructed, said recital was made merely in connection with the covenant conveying the right of way over the property and releasing it from all damages that might accrue to adjoining property that might arise from the construction of the viaduct, and it is clear therefrom that the city was to see to the construction. There is no express agreement alleged in the petition that Barnes & Mitchell were to construct the viaduct, and if they stated that an agreement then existed to construct the same, and said agreement did not then exist, an agreement was made some time thereafter to so construct between the city of Dallas and the railway company, which rendered said statement harmless, and affords appellee affords appellee no ground for relief. [3] This leaves for consideration the question of assurance that the viaduct would be built, which assurance was made by Ben T. Seay, who was the authorized agent of Barnes & Mitchell, to make sales of said lots, and did, in fact, make the sales. This assurance was not a representation that the viaduct was then in existence, but that it was to be erected in the future. Appellee may have relied on such assurance, and believed the viaduct would be built at some future time. But was such reliance and the failure to build such as authorized a recovery in an action for rescission of a contract for the sale of land? We think not. In Railway Company v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, where action was for the rescission of a sale of land, the deed conveyed the right of way over the land, and fraud was charged in that the agent represented that the company would establish and maintain a passen held: "That ordinarily a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into the contract, will not amount to fraud in legal acceptation, though subsequently the promise is without any excuse, entirely broken and nonfulfilled. This is a plain and well-establishtroversy; otherwise every breach of a contract ed proposition about which there can be no conwould amount to fraud"-citing Bigham v. Bigham, 57 Tex. 238. The court, however, held that, while the above was the true rule, there was a wellfounded exception, though there is a conflict in the authorities upon the question. The exception is that where the parties make the representation with the intent to deceive and defraud with no intention to perform the promise. [4] We think there is in this case a total failure to show any purpose to deceive or defraud. Appellee read in evidence the affidavit of Ben T. Seay, president, and T. E. Cranfill, vice president, who compose the firm of SeayCranfill Company, and represented the said Barnes & Mitchell in platting and laying off the streets and alleys and in all other matters pertaining to the establishment of said addition, and represented them in making sales of said lots, which affidavit states, in effect: While the plat was being made and before it was placed on record, negotiations had begun between the city of Dallas and the said railway company looking to the building of said viaduct. The city required the deed of dedication from Barnes & Mitchell conveying the right of way, waiving all damages and widening Merlin street from 50 to 60 feet. This necessitated the making of a new map, which was recorded, as before stated, on December 27, 1911. The deed and map were the result of the joint acts of the city and the said Barnes & Mitchell, and were, in fact, contemporaneous transactions. That the filing of said map for record showing the viaduct was not done until the said city had prepared said deed, and was done wholly and solely in reliance upon the good intentions of said city and said railway company that they would proceed with the building and completion of the viaduct without unusual delay. That in placing said lots upon the market and in selling same to various parties they advertised and stated orally to said purchasers that said viaduct was assured and would be built within a reasonable time, which statements and advertisements were based not only upon the contract made in said deed, but on the oral assurance of the members of the board of commissioners and representations of said railway company that said viaduct would be built and said acts were done by said agents in perfect good faith, and affiants believed a majority of the purchasers bought upon the faith they had in the affiants, the municipal 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 accept it as embracing the true facts in regard to the question of fraud and deceit. As we understand the transaction, there is nothing in the record to show deceit or fraud on the part of Barnes & Mitchell or their agents, but, on the other hand, it shows they acted in perfect good faith in trying to procure the building of the viaduct. Believing the injunction was improperly granted, it will be dissolved. BROOKS v. STATE. (No. 3668.) fendant nor the jury was present in the courtroom. As the defendant went in defendant's attorney was just concluding his argument for an instructed verdict. Defendant's attorney began said argument about 2 o'clock. This is the agreed statement of facts approved by the county judge in regard to that matter. It is also stated in the general statement of facts, which was filed on April 13th, also made before the adjournment 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 an instructed verdict, and concluded said (Court of Criminal Appeals of Texas. Oct. 13, argument at 3 p. m. At the conclusion of 1915.) CRIMINAL LAW 636-TRIAL-NECESSITY OF the argument the jurors and the defendant were brought into the courtroom. So the Under Code Cr. Proc. 1911, art. 646, profact 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 fendant voluntarily absented himself under from the courtroom while his counsel was arguing 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. this case defendant's absence was forced by being locked up by the deputy sheriff in the county jail. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. m636.] Prendergast, P. J., dissenting. Appeal from Maverick County Court; Ben V. King, Judge. Z. M. Brooks was convicted of an offense, and he appeals. Reversed and remanded. The Revised Criminal Statutes 1911, art. 646, provide: "In all prosecutions for felonies, the defendant must be personally present on the trial, and he must likewise be present in all cases of indictment or information for misdemeanors where the punishment or any part thereof is im David E. Hume, of Eagle Pass, for appel-prisonment in jail." lant. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted for soliciting and procuring Clara Brooks, a female, to be at a particular place, describing the place, for the purpose of meeting and having unlawful sexual intercourse with Percy Hamilton, a male person. Part of the punishment in this case is imprisonment. By the terms of the statute the verdict of the jury alloted defendant six months in the county jail in addition to a fine of $50. The Killman Case, supra, is not in point. The other authorities collated under the statute, we think, are in point, and require a reversal of the judgment. For this reason, the judgment will be reversed, and the cause remanded. The There was a square issue between the state and the defendant as to this matter on the facts. There is an issue presented by the record that defendant was absent during PRENDERGAST, P. J. (dissenting). 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 a misdemeanor case. I think this was no such proceeding or part of the trial as the statute contemplates cannot be had in the defendant's absence. No possible injury is shown or even claimed to him. It was too late to complain after the trial. [1] The statement of facts is made up of questions and answers. The motion of the Assistant Attorney General to strike out and not consider the evidence will be sustained. Under all the authorities, and under our law, a statement of facts in this condition cannot 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 to have been necessary to so arrange the evi HAWKINS v. STATE. (No. 3684.) (Court of Criminal Appeals of Texas. Oct. 13, dence. 1915.) [2, 3] Appellant requested the court to 1. CRIMINAL LAW 1098-APPEAL-STATE- charge the jury that the burden is on the MENT OF FACTS-FORM. A statement of facts, made up of questions A statement of facts, made up of questions and answers, cannot be considered; there being no statement by the judge in approving the statement that this was necessary, and it not appearing to have been necessary. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. 1098.] INSTRUCTIONS 2. CRIMINAL LAW 778 [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. 778.] 3. CRIMINAL LAW 330-BURDEN OF PROOF. There are instances in which the burden of proof is, or may be, placed on defendant; but this usually applies to special matters, like nonage and insanity, and does not include any case until after the state has made out a case over coming the presumption of innocence and reasonable doubt. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 721; Dec. Dig. 330.] 4. CRIMINAL LAW 1119 RECORD TERS PRESENTED FOR REVIEW. Where defendant, a negro, received the minimum punishment for the offense of which he was convicted, and there was no statement of facts which could be considered, the prosecuting attorney's allusion in harsh and bitter terms to the negro race was not ground for reversal, as the facts may have been overwhelming. state, and never shifts to the defendant. This charge was refused. In the charge of the court this language is found: "In all criminal cases the burden of proof is on the state." Usually this is sufficient, and will be treated so, unless there is some peculiarity about the case that will require the court to give the other phase of it, to wit, that the burden never shifts to the defendant. There are instances in which the burden is or may be placed on the defendant; but that does not include any case until after the state has made out a case overcoming the presumption of innocence and reasonable doubt. That rule usually applies to special matters, like nonage and insanity. We think that the court gave a sufficient charge on this proposition as presented by this record, and espe cially in the absence of a statement of facts. [4, 5] The district attorney made some rather vigorous remarks with reference to the negro race, defendant being a negro, and alluded to that race in harsh and bitter terms. Objection was urged to this by appellant's counsel. The bill recites that the court did not stop the district attorney, nor did he charge the jury to disregard the remarks. However that may be, as the record is presented, the defendant received the minimum punishment. The facts may have been overwhelming. The error is not thought to be of such a nature, under the circumstances, as to require a reversal. Had the defendant re [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig.ceived a punishment above the minimum, we 1119.] 5. CRIMINAL LAW 720 ARGUMENT OF COUNSEL. Prosecuting attorneys in their argument should confine themselves to legitimate deductions from the facts as they apply to the law of the case. might have quite a different proposition, and would, in the mind of the writer, have a very serious question in the case. We wish again to admonish the prosecuting officers against such speeches. Such remarks ought not to be permitted, nor ought they to be indulged, and we again request the trial courts to use judicial authority in regard to these matters. 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. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. 720.] 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. DAVIDSON, J. Appellant was convicted of robbery with firearms; his punishment being assessed at five years' confinement in the penitentiary. secured by means independent of the admitted facts frequently brings about reversals. It is, however, under the circumstances, thought not advisable to reverse this judgment for these improper remarks. The judgment is ordered to be affirmed. GOUGH v. ILLINOIS CENT. R. CO. (Court of Appeals of Kentucky. Nov. 5, 1915.) 1. APPEAL AND ERROR 2-RIGHT TO APPEAL-WHAT LAW GOVERNS. The law in force at the time an appeal is granted controls the right, as it is a privilege which can be given, taken away or restricted by legislative authority. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3-7, 1882, 2421; Dec. Dig. 2.1 2. APPEAL AND ERROR 45-RIGHT TO AP PEAL-DISMISSAL. construction or the validity of a statute or the construction of a section of the Constitution is necessarily and directly put in issue, and a correct decision of the case cannot be had without passing on the validity of the statute or construing the section of the Constitution, or statute involved. Subsection 3 of section 950, supra, regulates the manner in which this court may grant an appeal when the amount in controversy is as much as $200 and less than $500. It further provides, in reference to when the amount in controversy is as much as $200 and less than $500: "If the court decides, after an examination of the record, that the appeal should not be grantthe motion shall be overruled without a written opinion." This has reference to the motion for an appeal in this court, as provided by said subsection 3, supra, and rule 20 of the court. Ky. St. 950, subsec. 1, declares that no appeal shall be taken to the Court of Appeals from a judgment for the recovery of money or personal property if the value be less than $500, exclusive of costs, save that the Court of Ap-ed, peals may grant an appeal, when satisfied that the ends of justice require the judgment to be reversed, when the amount exceeds $200, or when the construction of a statute or the Constitution is in issue. Subsection 3 provides that, if the court is satisfied that an appeal should not be granted, the motion therefor, where the amount in controversy is less than $500, should be overruled without a written opinion. The amount in controversy as shown by the record was less than $500, and the bill of exceptions showed that neither the construction nor validity of a statute or of the Constitution was involved, and that there was no error prejudicial to the substantial rights of appellant. Held, that the appeal must be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 152-155. 157. 158, 172176, 178-184, 186-197; Dec. Dig. 45.] ty. Appeal from Circuit Court, Graves Coun Action between Minnie C. Gough and the Illinois Central Railroad Company. From a judgment for the latter, the former appeals. Appeal dismissed. W. J. Webb, of Mayfield, for appellant. Gus Thomas and Robbins & Robbins, all of Mayfield, and Trabue, Doolan & Cox, of Louisville, for appellee. HURT, J. [1] The appeal in this case was granted on the 3d day of December, 1914. The law in force at the time an appeal is granted controls the right of appeal. Hale v. Grogan, 106 Ky. 311, 50 S. W. 257, 20 Ky. Law Rep. 1857. The right of appeal is a privilege and can be given, taken away, or restricted by the legislative authority. [2] Section 950, subsection 1, Ky. Statutes, provides among other things: "But no appeal shall be taken to the Court of Appeals as a matter of right from a judgment for the recovery of money or personal property, or any interest therein, or to enforce any lien thereon, if the value in controversy be less than five hundred dollars, exclusive of interest and costs." Under a former statute, which fixed the minimum sum at $200, from a judgment either for granting or refusing a recovery, an appeal could be taken, it was held by this court that, either in the case of an appeal being granted by the court, which rendered the judgment from which the appeal was tak en, or where granted by the clerk of this court, that if the record demonstrated conclusively, that the amount in controversy was, in fact, less than $200, the appeal would be dismissed upon or without motion. Thomas v. Thomas, 162 Ky. 630, 172 S. W. 1054; Louisville Property Co. v. Whitley County Stave Co., 163 Ky. 336, 173 S. W. 783; Smith v. C. & O. Ry. Co., 118 Ky. 825, 82 S. W. 410; K. & P. Lumber Co. v. Sledge, 143 Ky. 137, 135 S. W. 1030; Renaker et al. v. Adams et al., 146 Ky. 513, 142 S. W. 1013; Morgan v. Johnson, 158 Ky. 417, 165 S. W. 649; Chenault v. Bank of Arlington, 159 Ky. 104, 166 S. W. 789. These decisions rested upon the fact that, if the amount in controversy was not as much as $200, this court had no jurisdiction. These decisions further held that the value in controversy must be the actual amount of the controversy, in fact, regardless of the claims of the parties. Under the present statute governing the right of appeals, this court, in an action for the recovery of money, does not have jurisdiction of an appeal unless the value of the amount in controversy is not less than $500, or unless the value of the amount in controversy is as much as $200, and the court is satisfied, from an examination of the record, that the ends of justice require the judgment appealed from to be reversed, or the construction or validity of a statute or the construction of a section of the Constitution is necessarily and directly put in issue, and a correct decision of the case cannot be had without passing upon the validity of the statute or construing the section of the Constitution or statute involved. The section, supra, further provides that the Court of Appeals may grant an appeal when it is satisfied from an examination of the record that the ends of justice require that the judgment appealed from should be reversed, if the value of the amount or thing in controversy, exclusive of interest and cost, is as much as $200, or when the The evidence contained in the bill of exFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |