amination that that was the first time he had so testified, that he was a witness before the grand jury, that he was not asked whether or not be cut the prosecuting witness, and that at that time he said nothing about it, as he did not desire to incriminate himself, a question on redirect examination as to whether he had ever before testified on oath about who cut the prosecuting witness was wholly immaterial, as he had made it plain in his testimony that he had never stated who cut the prosecuting witness before testifying on the trial. TAL. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. 286.] 7. CRIMINAL LAW 683-EVIDENCE-REBUTWhere, on a trial for assault to murder, a witness who testified that he, and not accused, assaulted N., the prosecuting witness, testified that he did not know what kind of clothes N. had on, or what kind of a coat, that he had on dark clothes, but he did not know whether they were black or not, or whether N. had a lantern in his hand or not, it was permissible to allow N. to testify in rebuttal that he had a lantern in his hand, and that he had on no coat, but was dressed in a pair of blue pants and a corduroy vest. graphs of the charge are alleged to be erroneous, and the brief filed in this cause by able counsel deals almost exclusively with what they claim in the assignments of error to be errors in the charge of the court, but which were not complained of in the motion for a new trial. Why is a motion for a new trial required to be filed? It is to enable the trial court to correct his own errors, if errors there be, in the trial of the case, and it is not fair to the trial court to seek to present error in the record to this court to which his attention was not called. It is the rule in this state in all the appellate courts now that all grounds relied on to present error must be contained in the motion for a new trial filed in the court below. The rules adopted by the Supreme Court now provide: "All errors not directly specified in the motion for a new trial shall be waived." Rule 101a (159 S. W. xi). The Constitution and laws of this state authorize the Supreme Court to adopt rules for [Ed. Note. For other cases, see Criminal the government of all the courts in this state, Law, Cent. Dig. §§ 1615-1617; Dec. Dig. and such rules govern, when not in conflict 683.] with some statutory provision. Of course, it 8. CRIMINAL LAW 1038-APPEAL-RESER- is provided that fundamental error may be VATION OF GROUNDS OF REVIEW OBJEC- presented at any time. But in the brief no TIONS AND EXCEPTIONS. fundamental error in the proceedings is pointed out. The indictment charges the offense of which appellant was convicted. The charge of the court submits this offense to the jury, and while it may not have submitted all the issues made by the testimony in a manner entirely satisfactory to appellant at this time, apparently it did so at the time of the trial, for no complaint was then made, and no special charges were requested. Under Code Cr. Proc. art. 743, providing that, when the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error was calculated to injure defendant's rights, which error shall be excepted to at the time of the trial, or on a motion for a new trial, where the charge presented defendant's contention made on the trial of the case, and defendant neither complained thereof at the time, nor requested any special charges, he could not afterwards complain of its failure to present a different contention. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. 1038.] Appeal from District Court, Grayson County; M. H. Garnett, Judge. Dick Vinson was convicted of assault to murder, and he appeals. Affirmed. In Ross v. State, 170 S. W. 305, we had occasion to review the decisions of our appellate courts since the Legislature has seen proper to provide that the charge of the court must be submitted to counsel before being read to the jury, and if counsel object to any portion thereof, or do not think it presents any issue fully or correctly, or does not present all the issues raised by the evidence, it shall be the duty of counsel to at that time, in writing, direct the attention of the court to such error of omission or comHARPER, J. Appellant was convicted of mission. This rule the Legislature had the assault to murder, and his punishment as-right to prescribe, and if it is thought not sessed at two years' confinement in the state to be in the interest of justice, application penitentiary. H. P. Abney, B. W. Cornelius, and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. should be made to the Legislature to change it, and not expect the appellate courts to ignore or emasculate this legislative provision. Assignments of error, filed in vacation, have no place in a transcript in a criminal case. The motion for a new trial is what we look to, and that alone. Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605; Jones v. State, 55 Tex. Cr. R. 207, 116 S. W. 1147; Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830; Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804. In Sue v. State this court said: [1-4] The term of court at which appellant was tried adjourned on the 15th day of May, 1915. Two months thereafter, July 15, 1915, in vacation, appellant filed what are termed "assignments of error," and in which he complains of the charge of the court as given, for the first time. On the trial of the case no special charges were requested, and no exception reserved to the charge of the court. In the motion for a new trial there is no attempt made to point out any error in the charge, but in the "assignments of error," filed "We wish * * to again repeat, what we after the court had adjourned, several para- have frequently said, that it is a useless con ing on this trial, the fact he had never before been called on to swear in regard thereto would be wholly immaterial. sumption of paper and an unnecessary incum- | about who cut Nelms. As the witness had brance of the record to put an assignment of er- made it plain in his testimony that he had rors in a record sent to this court. Article 723 never stated who cut Nelms before testifyof the Code of Criminal Procedure limits our consideration to assignments in the motion for a new trial and to bills of exceptions. We cannot take cognizance of any assignment of errors that is not thus placed in the record. Therefore we again urge the bar of Texas not to incumber the records sent to this court with any more as-record claims the court erred in permitting signments of errors. No complaint of the charge of the court, or ruling of the court, can be cousidered by us, unless said complaint is embodied either in a motion for a new trial or in a bill of exceptions." [5] Thus it is seen we must and can consider only such matters as are complained of in the motion for a new trial and bills of exceptions filed in the court below. In the motion for a new trial, the first complaint is: "The court erred in its charge to the jury." That is all of the ground; no error is attempted to be pointed out to the trial court, and under all the decisions of this court, the Supreme Court, and the Court of Civil Appeals, this is too general an allegation to receive consideration. The rules also provide that such an assignment shall not be considered. The next three grounds assert that the evidence is insufficient to sustain the verdict. The evidence offered in behalf of the state would show, if believed, that appellant, in the nighttime, slipped up behind H. C. Nelms and inflicted an almost fatal wound. Without going into details, we hold the state's evidence fully supports the verdict, and would sustain a much more severe penalty than was assessed. [6] The only other ground in the motion for a new trial alleges: "The court erred in the admission of evidence upon the trial hereof, to which appellant at the time duly excepted, as is shown by the several bills of exceptions filed herein and constituting a part of the record." To say the least, this is a rather general assignment, for no bills of exception had been filed at that time, and the two found in the record were not filed until some six weeks after the motion for new trial had been overruled and court had adjourned for the term. One of them refers to testimony excluded, and not to testimony admitted, on the trial. On the trial of this case Meek testified that he, and not appellant, was the person who cut Nelms. On cross-examination he was asked if this was not the first time he had so testified, and he answered that it He was asked if he was not a witness before the grand jury, and he answered that he was, and said that he was not asked about whether or not he cut Nelms; that he did not at that time say anything about it, as he did not desire to incriminate himself. On redirect examination, he was asked if he had ever before this time, on oath, testified [7] The only other bill of exceptions in the H. C. Nelms to be recalled as a witness and testify that on the night he was cut he "wore a pair of blue pants and corduroy vest." Meek, the witness who on this trial claimed he was the man who cut Nelms, testified: I do not know what kind of coat. He had on "I do not know what kind of clothes he had on. dark clothes. I do not know whether they were black or not. Don't know whether he had a lantern in his hand or not. In rebuttal of this testimony it was permissible to allow Nelms to testify that he had a lantern in his hand, and state he had on no coat, and was dressed in a pair of blue pants and a corduroy vest. [8] As before said, the court's charge may not have been framed to present all the issues, as appellant, after adjournment, has concluded he would like to have had them presented. On the trial of the case, he seemed to have contended that, if Meek cut Nelms, he should be acquitted, and the court instructed the jury: "If you should believe from the evidence that there was a sudden fuss between the train crew of which H. C. Nelms was a party and certain persons at Whitesboro on the occasion in question, and that there was no previous understanding or agreement between the defendant and Bill Meek to engage in such fuss with the train crew, and that during the difficulty Bill Meek cut the said Nelms with a knife, or if you have a reasonable doubt as to this matter, you should find the defendant not guilty." This seems to have presented the issue as contended for on the trial of the case, and article 743 was amended for the specific purpose of preventing a different contention being made after the trial to that made on the trial. If appellant could now, at this late day, complain of the charge, we are frank to say that the court should have instructed the jury that if Nelms struck Meek with a pick, and it reasonably appeared to appellant that Meek's life was in danger, or it appeared to him that Meek was in danger of suffering serious bodily injury at the hands of Nelms, he would have the right to use all necessary force to prevent such an assault. But appellant made no such contention at the time of the trial. His whole theory then was that he did not cut Nelms, that Meek did cut him under circumstances for which he could in no way be held responsible, and this contention was submitted to the jury in a way that was satisfactory to appellant and his counsel at that time. The judgment is affirmed. STERK et ux. v. REDMAN. (Court of Appeals of Kentucky. Nov. 12, 1915.) FRAUDULENT CONVEYANCES 206-EXIST ING LIABILITIES. One having, before making a transfer of his property without consideration, made a contract for purchase of goods, his liability for the price is one existing at the time of the transfer, even as to goods thereafter received under the contract, within Ky. St. § 1907, declaring such a transfer void as to all his then existing liabilities. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 629, 630; Dec. Dig. 206.] Appeal from Circuit Court, Marion County. Action by J. A. Sterk and wife against William Redman. From a judgment for defendant on his counterclaim against plaintiff and his cross-petition against plaintiff's wife, plaintiffs appeal. Affirmed. S. A. Russell, of Lebanon, for appellants. Hugh P. Cooper, of Lebanon, for appellee. TURNER, J. In 1912 appellant J. A. Sterk was a barrel manufacturer at Lebanon, Ky., and appellee, William Redman, was a stave dealer at Glasgow, Ky. After some correspondence between them, on the 14th day of 'December, 1912, Sterk went to Glasgow, and that day examined certain stacks of staves which Redman had on his yards at that place, and they at the time entered into the following written contract: "Articles of agreement made and entered into this 14th day of December, 1912, between Joe A. Sterk, of Lebanon, Ky., party of the first part and William Redman, of Glasgow, Barren county, Ky., party of the second part. "Whereas, the said party of the first part agrees to pay party of the second part $73.00 per 1.000 pcs. f. o. b. Glasgow for the sawed whisky staves 7/8x35" all cut-offs and dead culls to be laid out when loaded, staves to be straight count after dead culls are laid out, and to be paid for every thirty days from date of invoice." man, and certain negotiations were pending between the parties looking to a settlement of their differences, during which Redman offered to take back the unused staves, numbering about 19,000, at the contract price, and credit Sterk by the same, but this offer was refused. Pending the controversy between the parties, and on the 29th of January, 1913, Sterk conveyed to his wife for the recited consideration of $1 and other valuable considerations all of his visible property of every kind, including his business. In November, 1913, J. A. Sterk instituted this action against Redman, wherein he sought damages by reason of the alleged breach by Redman of said contract, alleging that he had bought from Redman, under his contract, and Redman was to deliver to him, only sound, merchantable, white oak whisky barrel staves; that the written contract above quoted was only a memorandum, and was not the whole contract between the parties; that Redman knew that he bought the staves only for the purpose of making whisky barrels, and that he made no other kind of barrels; that the staves so furnished him were defective and rotten, and many of them unfit for the purpose for which they were bought; that at the time he had a contract with a distillery company to furnish to it whisky barrels; and that a large percentage of the barrels so made out of the staves furnished him by Redman were unfit for the purpose, and were rejected by the distillery company. Redman answered, denying the material allegations of the plaintiff's petition, and alleged that the written contract was the whole contract between the parties; that the staves shipped to Sterk were the same which had been inspected by him before they were purchased; and that he (Redman) had, under the terms of the contract, thrown out of such car load shipments all of the cut-offs and dead culls in so far as they could be detected. He made his answer a counterclaim against J. A. Sterk and sought damages against him by reason of his failure to comply with his contract and accept and pay for all the staves so purchased by him, which at the time were estimated by the party to be from 60,000 to 100,000. He prayed judgment for the two last car loads of staves at the contract price, made his answer a crosspetition against Sterk's wife, and prayed that the conveyance by Sterk to her on the 29th of January, 1913, be set aside as fraudulent, and that such judgment as he might recover against Sterk be adjudged a lien on the property therein conveyed. On the 17th of December, 1912, Sterk received the first car load shipment of 12,625 staves, which he promptly paid for, according to the terms of the contract, on the 17th day of January, 1913. In the letter sending this check he suggested that it was about time he was receiving another shipment. On the 21st day of January, 1913, he received a second car load containing 16,125 staves, and, without ever having paid for the second car load, he received on February 18, 1913, a third car load containing 12,893 staves. About the time of the receipt of the second car load, or shortly thereafter, Sterk made complaint to Redman that many of the staves in the first car were defective, and not suited for making whisky barrels, and there was some correspondence between them on this subject; but, notwithstanding The cause was transferred to the equity this complaint, Sterk received the third car docket, a great mass of conflicting evidence load, as stated, on the 18th day of February. taken, and the court upon a final hearing The two last car loads not having been paid entered a judgment for the defendant on his for no further shipments were made by Red-counterclaim for the contract price of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes two car loads of staves, to be credited by | property would be liable as other property for $438, set aside the conveyance from Sterk the taxes necessary to redeem the bonds. to his wife, and gave to Redman a lien upon Corporations, Cent. Dig. §§ 1003, 1004; Dec. [Ed. Note. For other cases, see Municipal the property for the payment of his debt. Dig. 407.] Under the express terms of section 1907 of the Kentucky Statutes the conveyance by Sterk to his wife was void as to Redman's debt. The contract was made between Redman and Sterk on the 14th day of December, 1912, and the liability grew out of that contract, and necessarily the conveyance of his property, without consideration, on the 29th of January, 1913, to his wife during the existence of this liability, was void as to Redman's debt. The other questions involved are purely questions of fact. A great mass of testimony was taken, and seems to have been given careful consideration by the chancellor below, and he credited Sterk by $438, which represented 6,000 bad staves in the three car loads at the contract price. Our examination of the evidence convinces us that his judgment on the merits is substantially correct, and it is affirmed. SHUEY v. TRAPP et al. (Court of Appeals of Kentucky. Nov. 12, 1915.) 1. MUNICIPAL CORPORATIONS 414-PUBLIC IMPROVEMENTS ASSESSMENT OF BENEFITS. Under Ky. St. § 3565, providing, relative to cities of the fourth class, that the cost of reconstructing or repairing public ways, streets, or alleys shall be borne exclusively by the city, and section 3566, providing that the cost of making sidewalks, including curbing and guttering, whether by original construction or by reconstruction, shall be apportioned to the front foot as owned by the parties fronting the improvement, the cost of curbing and guttering a street was properly assessed against the abutting owners, though done in connection with the reconstruction of the carriageway, and not in connection with the construction or reconstruc tion of sidewalks. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1008, 1017; Dec. Dig. 414.] Appeal from Circuit Court, Campbell County. Action by Angeline Shuey against Daniel Trapp and another. Judgment for defendants, and plaintiff appeals. Affirmed. Judson A. Shuey, of Newport, for appellant. William A. Burkamp, of Newport, for appellee Trapp. E. E. Kelly, of Newport, for appellee city of Dayton. CLAY, C. Plaintiff, Angeline Shuey, the owner of certain lots on Sixth avenue in the city of Dayton, a town of the fourth class, brought this action against the city of Dayton and Daniel Trapp, contractor, to enjoin the city from levying a special improvement tax on her property and to quiet her title thereto. Being denied the relief prayed for, plaintiff appeals. The facts are as follows: On August 5, 1912, the board of councilmen of the city of Dayton by a resolution duly submitted to the qualified voters of said city the question, to wit: "Shall the city of Dayton, Kentucky, incur an indebtedness amounting to twenty thousand dollars, by issuing the bonds of said city, bearing interest at the rate of four per cent. per annum, for the purpose of reconstructing Sixth avenue, through said city, from the west corporation line, or O'Fallon avenue, to the east line of Main street?" At an election held on November 5, 1912, the proposition was carried by a vote of more than two-thirds of the qualified voters voting in said election. On January 20, 1913, the board of councilmen enacted an ordinance providing for the issuance of the bonds. The title of the ordinance provides for the issuance and sale of bonds "for the purpose of reconstructing Sixth avenue with vitrified brick paving, concrete foundation, and 6-inch cement curb and 16-inch brick gutter, laid on 6-inch concrete base, from," In the body of the ordinance no refer 2. MUNICIPAL CORPORATIONS 407 PUBLIC IMPROVEMENTS - ASSESSMENT OF BENE-ence is made to the curbing or guttering. FITS. On February 3, 1913, an ordinance was enA city voted to issue bonds for the pur- acted providing for the reconstruction of pose of reconstructing a street, and the board Sixth avenue with vitrified brick paving, conof councilmen provided for the issuance of such bonds by an ordinance which recited in its title crete foundation, 6-inch concrete curb, and that the issuance of the bonds was for the pur- 16-inch vitrified brick gutter. The ordinance pose of reconstructing such street with "vitrified provided that the work should be done at the brick paving *** and 6-inch cement curb cost of the city, with the exception of the and 16-inch brick gutter," but which did not refer in its body to the curbing and guttering. cost of the curb and gutter, which should be The proceeds of the bonds were paid to the assessed against the owners of the abutting contractor as compensation for reconstructing property. Bids were advertised for, and Danthe street, exclusive of the curbing and gutter- iel Trapp was the successful bidder. ing, and a special tax was assessed on the abutting property to cover the cost of such curbing February 24, 1913, he entered into a conand guttering. Held, that the proceeds of the tract with the city to do the work according bonds were not intended to cover the cost of the to the plans and specifications. After the curbing and guttering, notwithstanding the title work was completed, according to contract, of such ordinance, and the assessment of such cost against the abutting property did not con- the board of councilmen levied a special tax stitute double taxation, though the abutting on the abutting property for the cost of the On [1] Section 3565 of the Kentucky Statutes, being a part of the charter of cities of the fourth class, provides: "The cost of reconstructing public ways, streets or alleys, or repairing of the same, and the cost of making footway crossings, shall be borne exclusively by the city." Section 3566 of the Kentucky Statutes pro curb and gutter. The city paid the contrac- Under these circumstances, it cannot be tor the sum of $20,000 for the reconstruc- said that the proceeds of the bonds were intion of the street, excluding the curb and tended to cover both the reconstruction of gutter. the carriageway and the cost of the curbing and guttering. It is clear that plaintiff's property will be liable, in connection with all the other property in the city, for such taxes as may be necessary to redeem the bonds issued for the reconstruction of the carriageway, and liable for special assessment for the not paid out of the proceeds of the bonds, cost of the curbing and guttering, which was and which, under the statute, is clearly assessable against the abutting property holders. It is manifest, therefore, that plaintiff's property will not be subject to double taxation for the same purpose. It is merely liable for one improvement, which is an obligation of the entire city, and for another improvement, which, by the express terms of the statute, has to be borne by the abutting property owners. vides: "The cost of making sidewalks, including curbing and guttering, whether by original construction or by reconstruction, shall be apportioned to the front foot as owned by the parties respectively fronting said improvements, except that each corner lot shall have its sidewalk intersection included in its frontage." It is the contention of the plaintiff that, where the work of construction or reconstruction of curbing and guttering is done in connection with the construction or reconstruction of sidewalks, the cost thereof is properly assessable on the abutting property; but where such work is done as a part of the reconstruction of the carriageway, it is properly a part of the carriageway and should be paid for by the city. This precise question was before the court in the recent case of Weber v. Knepfle, 166 Ky. 228, 179 S. W. 19. In rejecting a similar contention the court said: "The ordinance in the case at bar distinctly separated the carriageway improvement and the curbing and guttering improvement, and provided that the one should be paid for by the city and the other by the property holders, as seems to have been unmistakably contemplated by the provisions of the charter quoted. The mere fact that in a single ordinance the council provided for the reconstruction of the carriageway and for the reconstruction of the curbing and guttering does not make the latter a part of the former. It must be given the same effect as if the two improvements had been provided for in separate and distinct ordinances." [2] But plaintiff contends that the bonds were issued for the purpose of paying for the entire improvement, and that it would be double taxation to assess the cost of the curbing and guttering against the abutting property owners. The question submitted to the voters was whether or not the bonds should be issued to pay for the reconstruction of Sixth avenue. No mention was made of the curbing and guttering. While in the ordinance providing for the issuance of the bonds the title does refer to the curbing and guttering, the body of the act, which controls, simply provides for the issuance of bonds for the purpose of reconstructing the street, without referring to the curbing and guttering. In addition to this fact, the evidence shows that the proceeds of the bonds were paid to the contractor as compensation for the reconstruction of the street, excluding the curbing and guttering, and a special tax was assessed on the abutting property to cover the cost of the curbing and guttering. Judgment affirmed. MEECE et al. v. COLYER et al. (Court of Appeals of Kentucky. Nov. 9, 1915.) 1. APPEAL AND ERROR 1009- REVIEW FINDINGS. evidence being conflicting, the chancellor's findIn an action to set aside a conveyance, the ing of the grantor's mental capacity must be accepted on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.] 2. FRAUD 50-BURDEN OF PROOF. The general rule is that one who charges fraud has the burden of making out his case. [Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 46, 47; Dec. Dig. 50.] 3. DEEDS 196 PROOF. VALIDITY - BURDEN OF Where a conveyance is voluntary and without consideration or upon an inadequate consideration, and there is a relation of trust and confidence between the parties, the burden is upon the grantee to prove that the grantor acted freely and understandingly. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. 196.] 4. DEEDS 196-VALIDITY-PRESUMPTIONCONFIDENTIAL RELATIONS. The mere fact that the grantor and the tablish such a confidential relation as would grantee were uncle and nephew does not esgive rise to the presumption of fraud. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. 196.] 5. DEEDS 17-VALIDITY-CONSIDERATION. The fact that the grantor conveying the land in consideration that the grantee should care for him during his lifetime lived only 68 days thereafter did not render the consideration inadequate; the test being whether the conveyance was fair and reasonable when made. Dig. 88 26-37; Dec. Dig. 17.] [Ed. Note. For other cases, see Deeds, Cent. Appeal from Circuit Court, Pulaski County. Action by Mary B. Meece and J. C. Meece, as guardian, etc., against Walter Colyer and |