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FLY, C. J. This is a suit by M. C. Reek, ments of error, they must depend for their surviving wife of Christian Reek, Sr., deceas- vitality and effectiveness on the existence of ed, and Christian Reek, Jr., Kate Reek Feille, certain facts which have not been made Edward Reek, and Mary Reek, surviving known to this court through the medium of a children of said Christian Reek, Sr., deceas- statement of facts prepared and filed in the ed, to recover damages for the negligent kill-lower court in the manner and within the ing of said Christian Reek, Sr., by appellant. time provided by law. The purported stateThe cause was tried by jury and resulted in ment of facts filed in this court in this suit findings, in answer to special issues, that fails to show that it was ever filed in the Mary C. Reek should recover $12,000, Ed- lower court at any time, while the law reward. Reek $5,000, Mary Reek $3,000, Kate quires that it be filed at some period within Reek Feille $1,000, and Christian Reek, Jr., 90 days from the date that the appeal was $100. Judgment was accordingly so render- perfected by filing an appeal bond. The aped.

peal bond was filed on December 9, 1914; [1] The first and second assignments of er- the transcript of the proceedings was filed in ror assail the action of the court in overrul- this court on March 6, 1915, within the 90 ing exceptions to those paragraphs of the pe- days. On April 14, 1915, over 100 days after tition in which it was alleged that the plain the appeal had been perfected, a purported tiffs did not know whether the deceased was statement of facts, which had never been engaged in intrastate or interstate commerce filed in the lower court, was filed in this at the time of his death, and it is contended court. There is a certificate by the stenograthat an attempt was made to recover under pher appended to the statement of facts federal and state statutes at the same time, which indubitably shows that the record was and that appellees should have been com- not completed until April 3, 1915, and consepelled to elect under which statute they quently if it had been filed by the district would proceed. The exceptions were prop- clerk at that time it could not be considered erly overruled. There was no effort to re- because not filed within the statutory time. cover under two statutes, but the pleadings The purported statement of facts will not be were intended to meet proof as to one class

considered. Thomas V. Matthews, 51 Tex. of commerce or the other. If the evidence

Civ. App. 304, 112 S. W. 120; Belt v. Cetti, showed that deceased was engaged in inter- 53 Tex. Civ. App. 102, 118 S. W. 241; Railstate commerce, then the federal statute way v. Waggoner, 102 Tex. 260, 115 S. W. would apply; but, if it showed that he was 1172. Courts of Civil Appeals will notice a engaged in intrastate commerce, then the failure to file the statement of facts in time state statute would apply. It would have although the question is not raised by the been a remarkable fact if the evidence had appellee. McKenzie v. Beason, 140 S. W. 246; shown that deceased was engaged in both Connally v. Saunders, 142 S. W. 975; Hines classes of commerce at one and the same v. Sparks, 146 S. W. 289; Hayes v. Groestime. The assignments are overruled. Cer

beck, 146 S. W. 327. tainly appellant was in no wise injured by.

[5] There is no merit in the twelfth asthe action of the court in regard to the ex-signment. If could not have injured appelceptions. There are propositions under the lant to inform the jury that it had requested second assignment of error that have no pos- the cause to be submitted on special issues. sible connection with it and are not germane

The thirteenth assignment of error is overthereto; for instance, the seventh proposi-ruled. The error complained of has no fountion, which seeks to show that the pleading ruled. The error complained of has no foun

dation in law or in fact. was in violation of section 1 of the four

The fourteenth assignment is overruled. teenth amendment to the Constitution of the

No error is presented requiring a reversal, United States.

and the judgment is affirmed. [2] The third assignment of error is overruled. The charge asked by appellant was

On Motion for Rehearing. clearly erroneous, in that it would have taken the question of negligence from the jury. [6, 7] The affidavits appended to the moThe evidence raised a question of fact to be tion for rehearing clearly show that counsel determined by a jury as to whether the con- for appellant labored under great difficulties tributory negligence of deceased caused his in getting a statement of facts prepared, and death, and it would have been error for the the showing made would fully exonerate court, under the circumstances of this case, counsel from any neglect in not filing the to have charged the jury that his failure to statement of facts within the 90 days if it do, or not do, certain things, was negligence. had been filed at any time in the trial court. The cause was submitted on special issues. There was a failure to do but one necessary and, if the charge had embodied the law, it thing, and that was the filing in the lower should not have been given because it called court. Had that been done, upon the showfor a general verdict. Railway v. Jones, 175 ing made in the motion for rehearing, the S. W. 488, and authorities therein cited. statement of facts would have been consid

[3, 4] In connection with the third assign- ered by this court. No power has been given ment, as well as the fourth, fifth, seventh, the clerk of this court, or to any justice of

the 1

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statement of facts which was not properly, 0. M. Lipper were made parties defendant, prepared in the lower court, and the filing in as asserting an interest in the mortgaged authis court does not preclude the court from tomobile. The J. I. Case Threshing Machine a refusal to consider such statement, nor Company intervened, asserting a prior lien estop it from exercising the duty of reject-on the automobile. The intervener having ing a paper purporting to be a statement of sequestered the automobile, judgment was facts, but which is not such statement be- rendered in favor of Lipper against the incause not filed in the lower court. If the tervener, but was silent as to the issues bestatement of facts, so called, was properly tween Jarrell and Gorman, and as to lien filed in this court, that does not relieve ap- rights between Jarrell and Lipper. Interpellant of the effects of a failure to file in vener appealed from such judgment. Appeal the lower court. That filing is essential to dismissed. the vitality and validity of a statement of facts, and the filing in this court could not

A. B. Wilson and Cole & Cole, all of Housgive life to a document that had never been

ton, for appellant. Lawrence Sochat, of

Houston, for appellee. brought into legal existence. It is not the duty of this court, or any member thereof, nor of the clerk, to investigate a statement

WALTHALL, J. [1] This suit was origiof facts and pass on its validity before it is nally filed by J. S. Jarrell against James J. filed; but that duty devolves on the court Gorman on a promissory note for $2,000, aswhen the matter is called to its attention in serting a chattel mortgage lien upon certain a motion to strike out such statement, or in automobiles, among which was the one inthe investigation of the case.

volved in this controversy. J. L. House, [8] No excuse is given for a failure to file Thornton Hamilton, and appellee, O. M. Lipin the trial court, and the fact that counsel per, were made parties defendant, as assertfor appellee may have agreed that the state-ing some claim to certain of the automobiles ment of facts might be filed out of time did upon which plaintiff Jarrell claimed the lien. not relieve appellant of the duty and neces

Appellant, the J. I. Case Threshing Masity of filing the statement in the trial court. chine Company, a corporation, intervened in The agreement may have put the statement the suit, asserting a prior lien upon one of of facts in the same position that it occupied the automobiles by reason of the execution before the time expired; that is, prepared it and delivery by defendant Gorman of a so that it could be filed in the lower court. certain chattel mortgage to intervenor to seThe agreement could not dispense with the cure the payment of the purchase price of filing, and did not attempt so to do.

said automobile. It is to be regretted that the agent to

Appellee, Lipper, was in possession of the whom counsel confided the duty of filing the automobile at the time the intervention was statement of facts did not file the same, and filed, claiming to be the owner thereof by that he offers no excuse for such failure. It reason of his having purchased it from deis not claimed, nor attempted to be shown, fendant Gorman, paying a valuable consid

eration therefor. that the agent ever presented the statement

The automobile in quesof facts to the district clerk.

tion was sequestered by intervener, and on The motion for rehearing is overruled.

the trial before the court without a jury judgment was rendered in favor of appellee, Lipper, and against appellant intervener, for

$850, as the value of the automobile sequesJ. I. CASE THRESHING MACH, CO. v.

tered. Pursuant to a written agreement, de. LIPPER. (No. 482.)

fendants Hamilton, House, "and the inter(Court of Civil Appeals of Texas. El Paso.

vener John Walker" were “dismissed out of Oct. 28, 1915.)

this cause, and go hence without day; all APPEAL AND ERROR 79-DECISIONS RE-costs as to said defendants and intervener to VIEWABLE-FINAL JUDGMENTS. Where, in an action upon a note asserting

be adjudged against Walker, intervener.” a lien on an automobile, in which a number of

The appeal was taken by appellant from parties are made defendants as asserting an in the judgment rendered against it in favor of terest, and by intervention, neither the judgment appellee, Lipper, for the value of the one car below nor the record on appeal shows any dispo- in controversy between appellant and appelsition of the issues between some of the parties plaintiff and defendant, the appeal must be dis-lee.

The judgment rendered in the case is missed, since it is not a final judgment so as to as follows: give jurisdiction to the Court of Civil Appeals. "Be it remembered that on this, the 16th day

[Ed. Note. For other cases, see Appeal and of October, came on to be heard the above-enError, Cent. Dig. $$ 484–493; Dec. Dig. Om titled cause, upon the intervention of the J. I. 79.]

Case Threshing Machine Company, as between

them and the defendant O. M. Lipper; and both Appeal from District Court, Harris Coun- parties appearing by counsel, and the court, havty; N. G. Kittrell, Special Judge.

ing heard the witnesses and argument, and havSuit by J. S. Jarrell against James J. Gor- ing examined the authorities submitted, is of the man on a promissory note and chattel mort per; wherefore it is ordered, adjudged, and de

opinion that the law is with the defendant Lipgage. J. L. House, Thornton Hamilton, and creed that the defendant Lipper do have and re

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cover of the J. I. Case Threshing Machine Com- read as a whole, was clear in meaning, and could pany the sum of $850, with interest at 6 per not have misled the jury. cent. from the 14th day of November, 1913, as [Ed. Note. For other cases, see Criminal the value of the car taken by them on the se- Law, Cent. Dig. $$ 1990, 1991, 1994, 1995, 3158; questration, and together with all costs in this Dec. Dig. Om 822. behalf incurred, for all of which let execution issue against the said J. I. Case Threshing Machine Appeal from Henderson County Court; O. Company and the sureties on both the sequestra- D. Owen, Judge. tion bonds and the replevy bond, jointly and sev

Sing Davis was convicted of unlawfully erally—to which judgment, the said J. I. Case Threshing Machine Company excepted and gave carrying a pistol, and he appeals. Affirmed. notice of appeal.”

Miller & Miller, of Athens, for appellant. Neither the judgment nor the record in C. C. McDonald, Asst. Atty. Gen., for the this court show what order or disposition, if State. any, was made in the trial court of the plaintiff Jarrell or the defendant Gorman, or HARPER, J. Appellant was convicted of of the issues as between them, nor of the as- unlawfully carrying a pistol, and his punishserted mortgage lien as between Jarrell and ment assessed at 60 days' imprisonment in Lipper. Jarrell sued to recover judgment the county jail. against Gorman on a promissory note, and [1] The first contention of appellant is asserted a mortgage lien on other property that the evidence will not sustain a convicthan the one car claimed by the appellant. tion. John Hill, John Ross, and Lillie Ross

. The judgment does not dispose of either the all testify that John Ross was working with parties or the issues between Jarrell and Gor- an unbroken horse when appellant came man, and between Jarrell and Lipper, and walking along; that he stopped and began to is not a final judgment.

assist Ross with the horse, and while doing For the reasons stated, this court is with so a pistol fell out of his pocket; that out jurisdiction, and the appeal is dismissed. John Hill picked up the pistol and offered it

to appellant, when appellant asked him to take care of it for him, as he (appellant)

would go with John Ross to Franklin. John DAVIS v. STATE. (No. 3730.)

Hill testified that he carried the pistol to (Court of Criminal Appeals of Texas. Oct. 20, his home, and appellant afterwards came to 1915.)

his house and got it. This is certainly 1. WEAPONS O17 – UNLAWFULLY CARRYING positive evidence that appellant had the PISTOL-EVIDENCE-SUFFICIENCY.

pistol on that occasion; in fact, he so tesEvidence in a prosecution for unlawfully tifies himself, but says he had let his brothcarrying a pistol held sufficient to sustain a conviction.

er have the pistol to have it fixed; that his [Ed. Note.-For other_cases, see Weapons, brother had neglected to do so, and, being Cent. Dig. 88 20, 22–33; Dec. Dig. Om 17.) over at his brother's that morning, he was 2. CRIMINAL LAW 829_REQUESTED CHARGE carrying the pistol back to his home; that -GIVING EFFECT.

it was unloaded, was broken, and would not Where, in a prosecution for unlawfully car

shoot. rying a pistol, the court gave a charge fairly pre

It would be a question whether or senting the issue, and in the language selected hy not the jury would believe his explanation accused, it was unnecessary to give other spe- of his possession on this occasion, and apcial charges requested by accused on the same parently they did not do so. The other witissue.

[Ed. Note.--For other cases, see Criminal nesses present did not notice that the pistol Law, Cent. Dig. 8 2011; Dec. Dig. Om 829.]

was broken in any particular. 3. WEAPONS Om 8 CARRYING PISTOL

[2] At appellant's request the court in

INSTRUCTION-REFUSAL.

structed the jury: In a prosecution for unlawfully carrying a "You are instructed that, if you believe from pistol it was not error to refuse to charge that, the evidence that the defendant, Sing Davis, was if the jury believed the pistol was broken and carrying a pistol from his brother's home to his would not shoot, “or” that it was unloaded at own home at the time complained of, and that he the time when, etc., there should be an acquittal, was proceeding on his way home along a route a since it is not the law that one carrying an un- person would usually or ordinarily travel in goloaded pistol is guilty of no offense.

ing from the place or home of George Davis to [Ed. Note. For other cases, see Weapons, defendant's home, you will acquit this defendant, Cent. Dig. $ 7; Dec. Dig. 8.]

and this although you may believe from the evi4. CRIMINAL LAW Ow1028_MISDEMEANOR- on his way home, stopped by at Ross' place to

dence that the defendant, while thus proceeding CONVICTION-QUESTIONS CONSIDERED.

Upon appeal from a conviction of a misde- assist in the managing of the wild horse." meanor, the court can pass only upon such ques

This presented the issue fairly and in lantions as are properly raised in the trial court.guage selected by appellant; therefore it

[Ed. Note.-For other cases, see Criminal was unnecessary to give the other special Law, Cent. Dig. $S 2619, 2620; Dec. Dig. Om charges on that issue requested by appel1028.]

lant. 5. CRIMINAL LAW 822-CHARGE-CONTRA

[3] Appellant also requested the court to DICTION-EFFECT.

In a prosecution for unlawfully carrying a , instruct the jury: pistol, the objection that the charge as given was "I charge you, as a part of the law in this contradictory cannot prevail, where

the charge, case, that if you believe from the evidence that the pistol was broken and it would not shoot, or This case is a little out of the ordinary. that it was unloaded at the time named, you will Of course, the title to real estate is never acquit the defendant."

to be tried in this character of case, and The court did not err in refusing to give the court did not err in so holding. But, as this special charge, for it is not the law of we view the record, the evidence appellant this state that, if one carries an unloaded sought to introduce was not offered to prove pistol, he is guilty of no offense. He could that he held a superior title to Trent to the very easily

easily have cartridges in another land, but only to show that he, in fact, was pocket, and in a moment's time could con- in possession of the land on which the fence vert it into a loaded one. Had the appellant was situate, and rightfully so. The proserequested the court to instruct the jury cuting witness, D. H. Trent, testified that that, if the pistol was broken, or so out of the fence belonged to him and had been in repair that it would not shoot and could his possession since 1895—about 20 years; not be fired, he should have done so.

that the land fenced was a part of the W. [4, 5] But this is a misdemeanor conviction, W. Williams survey, and was called the Mcand we can only pass on such questions as are Clesky land; that he had been in possession properly raised in the trial court. No excep- of the land since 1895. If Trent was claimtion was reserved to the court's charge, being the land as his own, then, of course, the cause he did not so instruct the jury in his question of title could only be tried in the main charge, although another exception to district court, and evidence on that issue the charge was reserved, and that is that would not be admissible. But what appelthe charge as given was contradictory in its lant sought to prove was that, while Trent terms. This is not a correct construction was in possession of the land, his possession of the charge, but when read as a whole, was that of agent of McClesky, and offered its meaning is clear, and could not have in evidence the following letter of Trent: misled the jury.

"Goldthwaite, Texas, June 29th, 1914. If appellant's contention, as made by his

"Mr. J. H. McClesky, Belton, Texas-My testimony alone, had been believed, of course Dear Sir: I have yours of the 28th relative to he would not be guilty under the law, but the land at Williams ranch. I have had this the jury did not believe his explanation of land fenced and taking care of it for fifteen

years, and the wood has been saved thereby. I his possession of the pistol, or as to its don't find any deed on record in favor of your condition, and we cannot say, at this dis- father, but he told me that the land belonged tance, they ought to have done so.

to him, and he gave me authority to fence the

same. However, old Frank Hewitt has put a The judgment is affirmed.

deed on record and claims the land, says that he bought the land from your father, but the place is in my possession and will be until you

are able to dispose of it, and if I can help you HUGHITT v. STATE. (No. 3722.)

shall only be glad to do so. The land is a cheap

grade of land and won't bring much ; don't be(Court of Criminal Appeals of Texas. Oct. 20, | lieve it will bring more than $6.00 per acre, for 1915.)

it is just rough grazing land. There has not FENCES Om 28-DESTRUCTION-PROSECUTION- been any taxes paid on the place for years and EVIDENCE-ADMISSIBILITY.

years. I will keep and take care of the place Where, in a prosecution for unlawfully pull- and hold it until I am paid for my fence and ing down a fence, defendant offered to show something for taking care of it for the past fifthat the prosecuting witness held possession teen years. Let me hear from you regarding only as agent for the real owner, and that the the same. entry upon the land and destruction of the fence “Yours very truly,

D. H. Trent." were done by accused under the authority of the

Appellant offered to prove, further, that real owner, such testimony was not inadmissible as an effort by accused to try the title to prior to the time this prosecution was bereal estate, but was only a proper attempt to gun he had gone into possession of the land show that the entry and destruction of the fence by authority of Trent's principal, Mr. Mcwere lawful.

[Ed. Note.-For other cases, see Fences, Cent. Clesky. If, in fact, Trent was holding the Dig. $8 62-67; Dec. Dig. 28.]

land as agent for McClesky, at will, cer

tainly McClesky would have authority to Appeal from Mills County Court; G. H. authorize appellant to take possession of it. Dalton, Judge.

If Trent had been claiming the land as his Frank Hughitt was convicted of unlawful own, no matter how defective his title, the ly pulling down a fence, and he appeals. Re-owner of the superior title would not be enversed.

titled to show that fact in this character of J. C. Darroch, of Goldthwaite, for appel-case. But when Trent by his testimony does lant. F. P. Bowman, Co. Atty., of Goldth- not claim to be owner of the land, on crosswaite, and C. C. McDonald, Asst. Atty. Gen., examination appellant ought to have been for the State.

permitted to show by him, if he could, that

he did not claim the land as his own, but HARPER, J. Appellant was convicted of was merely in possession of same as agent unlawfully pulling down a fence of D. H. for McClesky, and that his possession was, Trent, and his punishment assessed at a in fact, the possession of McClesky, and fine of $10.

then to prove, if he could, he entered upon

I am,

the land by authority from McClesky, in iness and the sale of intoxicants at a place other. fact, the person in whom the real posses-. than where the licensee is authorized. Rev. St. sion of the land had been all these years. license to give the number of the premises where

arts. 7435 and 7446, require an applicant for a The court erred in excluding the testimony the business is to be carried on and prohibit sales which would tend to show these facts.

elsewhere. An information charged that on the If one is in possession of another's cow 18th of April, 1915, in the county of T., accused, and had been in peaceable possession for without having first obtained a license, did in a

optwo years, and one is alleged to have stolen tion was not in force sell intoxicating liquor the cow of A. (the person in possession) with contrary to law. Code Cr. Proc. art. 453, deout his consent, and A. had so testified, cer- clares that the information must be so certain tainly it would be permissible for one charg- bar of a second prosecution, while articles 460

as to enable accused to plead the judgment in ed with the theft to show that, while A. was and 464 declare that an information charging an in possession of the cow, yet he was agent offense in ordinary language so as to inform a of B., the real owner of the cow, and if the person what is meant is sufficient, and that an

information for selling intoxicants shall be sufperson charged with the crime should offer ficient if charging that accused sold intoxicating to show that he had the consent of B. to liquor contrary to any law of the state to named take the cow, such testimony would be ad- persons without stating the quantity. Held,

that the information, which substantially folmissible, and if the jury should find that he lowed the statute a violation of which was had such consent, he would be guilty of no charged, was sufficient, while not averring the offense. If Trent had never claimed the particular place in the county wherein accused land as his own, and did not do so at the made the sale, or that such place was a different

one from the place where he was licensed to sell. time of this trial, but only claimed he was

[Ed. Note.-For other cases, see Indictment in possession of it as the agent of McClesky, and Information, Cent. Dig. 8 271; Dec. Dig. and appellant had the permission and con- m100.] sent of and authority from McClesky to en

Appeal from Tarrant County Court; Jesse ter upon the land, and take possession thereof, he committed no offense in doing so.

M. Brown, Judge.
And

Joe Winterman was convicted of selling inif Trent placed a fence on the land, with toxicating liquor without a license where loout McClesky's knowledge or consent, McClesky or those holding under him would cal option was not in force, and he appeals.

Affirmed. have authority to remove it from off the land, and would be guilty of no offense in Baskin, Dodge, Baskin & Eastus, of Ft. doing so.

Worth, for appellant. C. C. McDonald, Asst. . What is above said indicates the errors Atty. Gen., for the State. of the court in excluding testimony, and we do not think it necessary to discuss each bill

PRENDERGAST, P. J. Appellant was of exceptions in detail. It will also indicate convicted of selling intoxicating liquor where to the court the issues to be submitted in prohibition was not in force without obtainhis charge.

ing a license. The judgment is reversed, and the cause [1] Phil Gibson testified that he had a remanded.

barbecue stand near the corner of Thirteenth and Monroe streets, in the city of Ft. Worth,

and had lived in Ft. Worth 20 years; that WINTERMAN v. STATE. (No. 3648.)

appellant lived with his son, Felix Winterman, (Court of Criminal Appeals of Texas. Oct. 13, just across the street from his barbecue 1915. Rehearing Denied Nov. 3, 1915.)

stand. He further testified: 1. INTOXICATING LIQUORS 236_OFFENSES On Sunday, the 18th day of April, 1915, -EVIDENCE-SUFFICIENCY.

about 9 o'clock in the morning, Dolly Chainey, In a prosecution for selling intoxicating a negro woman, came to my barbecue stand and liquor without a license in a county where pro- gave me 40 cents, and asked me to get her a hibition was not in force, evidence held to half pint of whisky. I took the 40 cents and warrant conviction.

went across the street to Felix Winterman's [Ed. Note. For other cases, see Intoxicating house, where the defendant, Joe Winterman, Liquors, Cent. Dig. $$ 300-322; Dec. Dig. Om was staying, and knocked on the door. The 236.]

defendant came to the door, and I gave him the 2. INTOXICATING LIQUORS m150–OFFENSES half pint of whisky. The defendant went back

%

40 cents, and told him that I wanted to get a -SALES WITHOUT LICENSE.

Under Pen. Code, art. 611, declaring that into another room of the house and brought out no person shall, directly or indirectly, sell in- a half pint of whisky and gave it to me, and I toxicants without taking out a license, the of- carried the whisky across the street to the barfense is selling intoxicants without a license, becue stand and delivered it to Dolly Chainey. and not engaging in the business of selling with About 11 o'clock that same morning Dolly out a license.

Chainey came back to the barbecue stand and [Ed. Note. For other cases, see Intoxicating another half pint of whisky. I went across the

gave me 40 cents again and told me to get her Liquors, Cent. Dig. $8 164, 165; Dec. Dig. En street again to the house where the defendant 150.]

was staying and got another half pint of whisky 3. INDICTMENT AND INFORMATION Om 110 from him and carried it across the street to SALE OF LIQUOR-FOLLOWING STATUTE. the barbecue stand, where Dolly Chainey was,

Pen. Code, art. 611, makes it an offense to and delivered it to her. I bought a half pint sell intoxicating liquors without a license, while of whisky from the defendant at his home on article 614 prohibits the carrying on of the busi- / Sunday, April 4th, for 40 cents."

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