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2. CRIMINAL LAW On 595 — CONTINUANCE the 13th day of February, 1915, he saw CritGROUNDS-INTOXICATION OF WITNESSES. tenden several times, and that on said date,

In a criminal prosecution, it was not error immediately before and after the occasion to refuse a continuance, where the affidavit of the absent witness stated that he had seen the on which defendant is alleged to have made prosecuting witness intoxicated at about the certain statements to the witness Crittenden, time the offense was alleged to have been com- on which statements the affidavit and informitted; the fact of the witness' intoxication mation is based, he (said witness Cole) was not rendering him incompetent.

[Ed. Note. For other cases, see Criminal with Crittenden in his (Crittenden's) place of Law, Cent. Dig. 88 1311, 1323-1327; Dec. Dig. business, and that on each of said occasions Om595.]

the witness Crittenden was drunk. We are Appeal from Fannin County Court; S. F. of opinion there was no error in refusing Leslie, Judge.

this continuance. This witness does not show Callie Fletcher was convicted of giving the the state of drunkenness, or that he was too name of his wife to another for the purpose drunk to know what he was doing. If he of enabling the latter to have sexual inter-was drunk at the time he was in his room, course with her, and he appeals. Affirmed. that fact could have been proved by Critten

den, or he could have been asked about it. E. S. McAlester and Thos. P. Steger, both This seems not to have been done. The of Bonham, for appellant. C. C. McDonald, mental status of a defendant by being drunk Asst. Atty. Gen., for the State.

would not be an excuse for crime, and it

could only be given in mitigation, if it is DAVIDSON, J. The charging part of the worth anything, and the inconclusiveness of affidavit and information is that on or about the statement of Cole does not place the matthe 13th day of February, 1915, Callie ter in such attitude the defendant is entitled, Fletcher unlawfully gave to Albert Critten we think, to the continuance. The same rule den the name of Ida Fletcher for the purpose or similar reasoning would apply to witness' of enabling Albert Crittenden to have unlaw- testimony. It would not render him incomful sexual intercourse with and to meet said petent as a witness ordinarily. It was not Ida Fletcher.

sought to even prove by present testimony [1] The facts are less than a page in length, such condition. and are made alone by the testimony of Al

The judgment therefore will be affirmed. bert Crittenden. He says:

"I am a single person, and room over the Ragsdale Building, over what is called Sid MCDONALD v. STATE. (No. 3704.) Smith's store. I keep a room furnished there,

Oct. and, in addition to the ordinary furniture of an (Court of Criminal Appeals of Texas. unmarried man, I keep a small oil cooking stove.

27, 1915.) I keep this to cook game on some time, as I 1. CRIMINAL LAW Cum 844 – INSTRUCTIONS hunt a good deal. I do not eat there regularly, GENERALITY OF OBJECTIONS. and only have this stove to cook game on when

The objection to a charge that it did not diI desire. I know the defendant, Callie Fletcher. rectly submit the issues as raised by the eviThere he sits in the courtroom. About the 13th dence, and did not instruct on certain named day of February he came to my room. There subjects, is too general to point out any specific

no I. ing in my room some time, he asked me what error, as required by the statute. I was doing with that stove. I told him I kept Law, Cent. Dig. 8 2025; Dec. Dig. Omn844.]

[Ed. Note. For other cases, see Criminal it there, and sometimes cooked my game on it after going hunting. He said to me that he 2. CRIMINAL LAW Oww1169_HARMLESS ERROR would bring his wife, Ida, up there, and she -ADMITTING AND STRIKING EVIDENCE-ADcould cook me a meal on it. I told him I did MISSION OF EVIDENCE. not eat here in the room, but only used the stove Admission of evidence of propositions of deto cook game on occasionally. The defendant fendant in seduction to witness was harmless, said that was all right; he would bring his wife, where it was stricken out, and the jury instructIda, up there and leave her with me, and she ed to disregard it; the jury having assessed the would cook me a good meal. I said, "No,' and lowest punishment. the defendant said he would bring Ida, his wife, [Ed. Note. For other cases, see Criminal up there and leave us alone there together and Law, Cent. Dig. $$ 754, 3088, 3130, 3137–3143; would go off. He said, 'You know Ida.', I said Dec. Dig. Om 1169.] to him, "Callie, you are a damn fool,' and got up 3. CRIMINAL LAW mm 398 – EVIDENCE Conand left, he coming with me.”

TENTS OF LOST LETTER. This is the entire statement of facts, ex

Witness, having lost a letter to her, could cept the venue and date.

testify to its contents. [2] Under our statute this testimony is [Ed. Note.-For other cases, see Criminal sufficient to prove the case. Appellant ask- Law, Cent. Dig. 88 879–886; Dec. Dig. Em398.] ed for a continuance, which was overruled 4. CRIMINAL LAW Ow1169 RECEPTION OF

EVIDENCE-OBJECTIONS. and made a ground of the motion for new trial. The absent witness, Cole, filed an af- after witness had testified to part of the con

Where proper objection was not made till fidavit in connection with the motion for new tents of a letter, and was then sustained, there trial as to what his testimony would be. He was no error; the court having previously insays that he was acquainted with defendant structed that, under such circumstances, testi

mony should not be considered. and the prosecuting witness, Crittenden;

[Ed. Note.-For other cases, see Criminal that he (witness) had been summoned as a Law, Cent. Dig. $$ 754, 3088, 3130, 3137–3143; witness for the defendant, Fletcher; that on Dec. Dig. 1169.]

Tex.)

MCDONALD V. STATE

881

5. WITNESSES 369 IMPEACHING TESTI- / submit the issues as raised by the evidence, MONY.

and did not instruct on lust, passion, or fear,To impeach a witness for defendant in se, and that the court refused to give his 11 speduction, the state may show witness prescribed

cial charges. for prosecutrix to produce an abortion.

These objections, under all [Ed. Note. For other cases, see Witnesses of the decisions, are too general to point out Cent. Dig. $S 1187, 1188; Dec. Dig. 369.] any specific error, as required by the statute. 6. CRIMINAL LAW 1169—HARMLESS ERROR However, we may discuss his refused charg-ADMISSION OF EVIDENCE.

es herein later. The court gave a full and Erroneous admission of testimony is not correct charge submitting every question raisground for reversal; the same fact having been

ed by the evidence. testified to by another, without objection. [Ed. Note.-For other cases, see Criminal

[2] Appellant has several bills to the adLaw, Cent. Dig. $$_754, 3088, 3130, 3137–3143; mission and exclusion of certain evidence and Dec. Dig. Om 1169.]

the action of the court pertaining thereto. 7. CRIMINAL LAW Ow413–EVIDENCE-SELF- His first sets up that, while Renza Mitchell, SERVING DECLARATIONS.

the mother of the prosecutrix, was on the Refusing to allow defendant in seduction to stand, certain questions and her answers show his previous statements to persons of his contemplated marriage to another than prose- thereto, which are copied in the bill, making cutrix, it not being shown or attempted to be some six typewritten pages, were had. This shown that they had been communicated directly bill gives the questions and answers, his obor indirectly to prosecutrix, was not error, but jections to some of them, the court's ruling,

The had also been made to other persons more likely what the district attorney said, etc. to communicate them to prosecutrix.

court, in approving the bill, did so with this [Ed. Note.-For other cases, see Criminal qualification: Law, Cent. Dig. 88 928–935; Dec. Dig. Om

“When this witness was on the stand, she did 413.)

not speak very plainly and talk from the point, 8. AFFIDAVITS Om5 AUTHORITY TO TAKE as is often the case with negro witnesses, and ATTORNEY OF ACCUSED.

her testimony up to the statement, in substance, Affidavits sworn to before defendant's attor- that the defendant had made a proposition to ney are not entitled to consideration on his mo- her for carnal intercourse, would hardly indicate tion for new trial.

that she had such in mind, but I understood [Ed. Note. For other cases, see Affidavits, therefrom that she was meaning a conversation Cent. Dig. $s 18-27; Dec. Dig. Om5.]

with defendant regarding his mistreatment of

her daughter, who was a pupil of the defendant 9. CRIMINAL LAW Ow1156APPEAL-DISCRE- in the colored school at Denton. So soon as it TION-DENIAL OF NEW TRIAL.

became apparent that she had in mind an illicit Denial of a new trial on the ground of new- proposition to herself by defendant, I immediately discovered evilence will not be disturbed, un-ly struck out the testimony, and instructed the less it appears that the trial court abused its dis-jury not to consider the same. I think the procretion to defendant's prejudice.

ceeding had no effect on the jury whatever.” [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 3067–3071; Dec. Dig. Em the judge, presents no reversible error. The

In our opinion, this bill, as explained by 1156.] Appeal from District Court, Denton Coun-v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37

jury assessed the lowest punishment. Miller ty; C. F. Spencer, Judge. J. T. McDonald was convicted, and appeals. Cr. R. 239, 65 S. W. 97; Robinson v. State,

Am. St. Rep. 836; Hatcher v. State, 43 Tex. Affirmed.

63 S. W. 869; Trotter v. State, 37 Tex. Owsley & Owsley, of Denton, for appellant. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 C. C. McDonald, Asst. Atty. Gen., for the Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, State.

31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v.

State, 2 Tex. App. 348; Roberts v. State, 48 PRENDERGAST, P. J. Appellant was Tex. Cr. R. 210, 87 S. W. 147; Martoni v. convicted of seduction, and assessed the low-State, 167 S. W. 351. est punishment. It is useless to detail or dis [3, 4] In his next bill he complains that, cuss the evidence. There can be no question when the witness Leta Mitchell, prosecutrix, as to its sufficiency to sustain the verdict. was testifying, she was permitted, over his There was some conflict in the evidence.objections, first, to testify to the contents of That of the appellant and his witnesses, if a letter she had received from appellant. believed, would have been sufficient to have She testified that she had lost it. The court, authorized his acquittal. That question was in qualifying his bill on this point, states for the jury, however, and not for this court. that she had lost that letter, which rendered The prosecutrix was amply corroborated. its contents admissible. The court was corWilliams v. State, 59 Tex. Cr. R. 347, 128 s. rect in this. Then it appears the witness W. 1120; Beeson v. State, 60 Tex, Cr. R. was asked about a letetr she had written to 39, 130 S. W. 1006; Nash v. State, 61 Tex. Cr. the appellant. As to this the court, in quali R. 269, 281, 134 S. W. 709; Gillespie v. State, fying and approving the bill, said: 73 Tex. Cr. R. 602, 603, 166 S. W. 135.

“With reference to the letter she claims to [1] The only objections to the charge of the have written defendant, objection was sustained court, after it had been submitted to appel- to her telling the contents. · However, some lant's attorneys, and before it was read to fendant, but, when the objection was made that

parts of it she had told over objection of dethe jury were “that the same did not directly defendant had been given no notice to produce

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

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it, the objection was sustained, and I had pre-| that about June, 1913, when they first emviously stated to the jury that, when an objection ployed him as a teacher in the colored schools was sustained to any proffered testimony, they at Denton, he then told them he intended to

, it had been heard by them, as it frequently oc- get married, and that on another occasion he curs that a portion of a witness' answers ap- so told them. The court, in explanation of pears unobjectionable, and more of it shows the these bills, refusing to permit such testimony, whole to be inadmissible."

shows that he did so because they were not As qualified, this bill shows no error,

shown or attempted to be shown to have been [5] In his next bill he complains of the tes- communicated, directly or indirectly, to the timony of Renza Mitchell, introduced in re- prosecutrix, and that they were therefore buttal, to the effect that in June, 1914, when self-serving, but that all other testimony by her daughter, the prosecutrix, was sick, caus- all other negro witnesses (the appellant and ed by her pregnancy, Mrs. Lawson, one of the the prosecutrix being negroes) to statedefendant's material witnesses, called on her ments by appellant of his approaching marand gave her a prescription for cotton root riage with a woman other than prosecutrix, to produce a miscarriage on Leta. What the or his claimed intended marriage, were adprescription was is not otherwise disclosed mitted, and that all other such statements, than as stated. In approving the bill, the where it was thought prosecutrix would likecourt qualified it as follows:

ly learn of it, were admitted. The record “This bill is approved, with the qualification shows that many of the witnesses did testify that the witness Mrs. Lawson had testified in favor of the defendant and against the conten- to said declarations. These bills present no tion of the prosecutrix, and showed considerable error. interest in the defense, as the court thought, and Notwithstanding the court's refusal to give the court, as affecting the credibility of the said any of his special charges is not raised and Mrs. Lawson, and was limited orally to the jury presented in such a way that we could confor such purpose, and perhaps in the charge, sider them, yet we have examined all of them, which is not now accessible.”

and, where proper to be given, they were The charge did so limit it. Mrs. Lawson clearly embraced in the court's charge, and denied that she had given any such prescrip- those not so embraced should not have been tion. Appellant contends that, as Mrs. Law- given, and the refusal to give them presents son so denied, the state was bound by her de- no error. nial, as she was attempted to be impeached [8, 9] The only other question is that apon an immaterial matter. His contention pellant has the affidavits of three persons does not apply in this case. The law is well attached to his amended motion for new trial, established that the opposite side may show claiming that they show newly discovered evianimus and prejudice on the part of the ad-dence which he claims ought to have resulted verse witness towards him and its extent, and in the court's granting him a new trial. The that in such examination great latitude is first of these affidavits is sworn to before one allowed when the object is to impeach the of his attorneys, which as has been uniformly credit of the witness; also that motives held prevents its consideration. Maples v. which operate on the mind of the witness State, 60 Tex. Cr. R. 171, 131 S. W. 567, and when he testified are never regarded as im- many cases to the same effect. The appelmaterial or collateral matters. A party may lant's motion on this ground was controverted prove declarations of the witness which tend and vigorously contested by the county atto show bias, interest, prejudice, or any oth- torney. It was all threshed out before the er mental state, or status, which, fairly con- trial judge. strued, might tend to affect his credibility.

"It is well established by the decisions of this Pope v. State, 65 Tex. Cr. R. 51, 143 S. W. court that a motion for a new trial on this 611; Earles v. State, 64 Tex. Cr. R. 537, 142 ground is closely scrutinized, and is largely conS. W. 1181; Cain v. State, 68 Tex. Cr. R. 517, fided to the discretion of the trial court; and

the

of 153 S. W. 147; Burnaman v. State, 70 Tex. Cr. on appeal, unless it be apparent that the trial R. 365, 159 S. W. 244, 46 L. R. A. (N. S.) 1001 ; court abused its discretion to the prejudice of and authorities in the opinions in said cases. appellant. Burns v. State, 12 Tex. App. 269; [6] Besides this, before Renza Mitchell tes- Bell v. State, 1 Tex. App. 598; Templeton v.

5 . , 27 tified, her daughter, Leta, had testified to the Tex. 750 ; West v. State, 2 Tex. App. 209; Tersame thing, without any objection thereto by ry v. State, 3 Tex. App. 236. the appellant, as shown by this record. As

"It is also well established that in a motion

for new trial on this ground it is incumbent on frequently held by this court:

the appellant to satisfy the court: (1) That the “The erroneous admission of testimony is not evidence has come to his knowledge since the cause for reversal, if the same fact is proven by former trial; (2) that it was not owing to want other testimony not objected to." Wagner v. of due diligence on his part that it was not disState, 53 Tex. Cr. R. 307, 109 S. W. 169; 1 covered and did not come to his knowledge beBailey v. State, 69 Tex. Cr. R. 484, 155 S. W. fore the trial; (3) that it is competent and 536; Christie v. State, 69 Tex. Cr. R. 602, 155 material evidence, and not merely cumulative, S. W. 541; and many other cases.

corroborative, or collateral; (4) that it will [7] By other bills appellant complains that probably produce a different verdict if a new the court refused to permit him to prove by the purpose of impeaching a former witness. If

trial is granted; (5) that it is not simply for the superintendent and some of the trustees the application is defective in establishing any

Tex.)

FOX v. FOX

883

refused. Fisher v. State, 30 Tex. App. 502 [18 CARL, J. Appellee, Ida West Fox, on S. W. 90]; West v. State, supra: Duval v. May 11, 1915, filed suit against appellant, E. State, 8 Tex. App. 370; Gross v. State, 4 Tex. A. Fox, for divorce, and for the recovery App. 249; Hutchinson v. State, 6 Tex. App. 468." White's Ann. C. C. P. $ 1149; Gray v. of her separate property, and obtained an State, 65 Tex. Cr. R. 206, 207, 144 S. W. 283, injunction against appellant. On August 31, 284.

1915, the court overruled a motion to disWe think the court's action in refusing a solve this injunction, and continued same in new trial on this ground was correct.

force until the further orders of the court. The judgment is affirmed.

This is the order from which this appeal is prosecuted.

The petition alleges that the plaintiff was, FOX v. FOX. (No. 5616.)

and had been at the time of the filing of the (Court of Civil Appeals of Texas. San Antonio. petition, a bona fide resident of the state of Oct. 27, 1915.)

Texas and county of Bexar for one year be

fore such filing of the petition. In addition 1. DIVORCE On 124-JURISDICTIONAL FACTSRESIDENCE IN COUNTY-SUFFICIENCY OF Evi- to the allegations in support of the divorce DENCE.

prayed for, the petition charges that appelEvidence in a wife's action for divorce and lant married her in order to secure all her for the recovery of her separate property held to available money, and had appropriated the sustain a finding that at the time of the filing of her petition plaintiff had been an actual bona same to his own use; that prior to the marfide inhabitant of the state for twelve months, riage the appellant persuaded appellee to and had resided in the county where the suit loan him $2,500, and executed a deed of trust was brought for six months next preceding the filing of the petition, within the jurisdictional on certain real estate in San Antonio, which requirement of Vernon's Sayles' Ann. Civ. St. he never owned, but which stood in the name 1914, art. 4632.

of his daughter, Blanche Fox, and since the [Ed. Note.--For other cases, see Divorce, Cent. marriage he has taken from appellee the Dig. $$ 392–398, 450, 455, 456; Dec. Dig. En notes and deed of trust covering this loan 124.]

so that she would not have any evidence of 2. DIVORCE C 62—JURISDICTION-RESIDENCE said debt; and, further, that since the mar-CONSTRUCTION-STATUTE.

Under Vernon's Sayles' Ann. Civ. St. 1914, riage appellant had secured from her $10,art. 4632, requiring that a petition for divorce, 000, agreeing to lend same for her and give and proof in support thereof, show that at the her the securities for same, which he has time of its filing the plaintiff had been an actual bona fide resident of the state for twelve months, failed and refused to do, and refuses to acand a resident of the county where suit was count to her for the same. The petition also brought for six months next preceding the filing alleges that a certain $2,000 vendor's lien of the petition, a long-continued absence from note was purchased out of her said money, the state or county would not be a substantial compliance with the requirement that the party and that certain other property and purchasbe a bona fide inhabitant of the state, but aes were made with her money, and charges temporary absence from the state or county dur- that funds in the State Bank & Trust Com

the tition for divorce would not affect the right to pany are a part of her said sum of money. maintain it.

A divorce was prayed for; also a judg[Ed. Note.-For other cases, see Divorce, ment for $12,500 so fraudulently obtained, Cent. Dig. SS 200–202, 208-216, 220, 282; Dec. and that same be declared a lien upon propDig. Om 62.)

erty alleged to belong to appellant; and for 3. VENUE Om 8-STATUTE.

an injunction restraining the bank from payWhere a wife furnished money to her husband to be loaned upon real estate securities in ing out any of said money upon appellant's her name and for her benefit, but the husband checks, and to restrain the defendant from converted it to his own use in B. county, or disposing of the real estate pending the suit. placed it upon securities and retained the evi- The motion to dissolve the injunction was dence thereof in his own name and refused to based mainly upon the following grounds: deliver them, the wife's action charging such fraud, that some of the property was situated in (1) That the plaintiff was not a bona fide B, county, and seeking the establishment of a resident citizen and inhabitant of the county resulting trust, was properly brought in B. of Bexar, state of Texas, ano was not at the county, within the express provision of Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, § 7. time of filing the suit; that when defendant

[Ed. Note. For other cases, see Venue, Cent. and plaintiff married on February 13, 1915, Dig. $ 17; Dec. Dig. Om 8.]

appellee gave her residence as the city of

St. Louis, in the state of Missouri, and was Appeal from District Court, Bexar County;

not at that time, and never had been, a resW. S. Anderson, Judge.

Action by Ida West Fox against E. A. Fox ident citizen of the state of Texas. It is alfor divorce and the recovery of separate came to Texas and moved out on a ranch in

leged therein that after the marriage they property. From an order of injunction, de- Medina county, where they resided at the fendant appeals. Affirmed.

time this suit was filed, and that by reason Arnold, Cozby & Peyton, M. W. Davis, and thereof the Thirty-Seventh district court of Davies & Davies, all of San Antonio, for ap- Bexar county had no jurisdiction to try the pellant. Carlos Bee, C. C. Todd, and Ball & cause, which, it is alleged, is a suit for diSeeligson, all of San Antonio, for appellee. I vorce, and that neither plaintiff nor defendant was an actual bona fide resident citizen the suit is brought for six months next pre of Bexar county.

ceding the filing of the same. (2) That the injunction issued and served Defendant testified that he met the plainupon the State Bank & Trust Company im- tiff about December 24, 1914, and they were pounded and tied up funds belonging to E. married on the 13th of February, 1915, at A. Fox, defendant, and prevented him from St. Louis, Mo. There is an affidavit in eviselling any property.

dence, made by both the parties to this suit The plaintiff below denied these allega- for the purpose of obtaining a marriage litions, and replied that it was necessary for cense in St. Louis, in which the residence of her health, pleasure, and business that she be appellee is given as 5331A, Ridge avenue, away from Bexar county a great deal, but | St. Louis, Mo. When they married they came that she had, while gone, kept her room here, to San Antonio, and he says they first lived in which her personal effects were left. She at 121 Uvalde street, where they arrived on admitted that they went upon the ranch in February 15th, which they were to vacate on Medina, Bexar, or Bandera county, but says March 1st. . He says they vacated the house she thinks it was situated partly in all of on Uvalde street, and stayed at the Travelsaid counties, but says that this sojourn was ers’ Hotel. The house on Uvalde street was never intended by either of them to be aught his home up to that time, according to his but temporary. She alleges that appellant statement, and he brought his wife there to did not own the ranch, but had merely a that house, which he says, however, was in contract or option to buy same, and that a his daughter's name. He says, further, that large part of her separate funds, acquired on the 2d of March they went to the Travas formerly stated from her by defendant, elers' Hotel, but that on the 11th or 12th of was invested in same and improvements March she made a trip to St. Louis, and came thereon, and asserted that she was entitled back on March 28th, and went out to the to an equitable lien on same. She alleges, ranch with him. This ranch, according to further, that she believes that appellant has his testimony, is in Medina county. conspired with Becher, the man from whom There is a great deal of testimony on both he obtained the contract for said land, to sides as to the matter of residence; but, surrender his contract or convey same to since the court heard evidence on that issue Becher, or some other person, to defraud and determined it in favor of the appellee, her of the equity therein.

we will direct our investigation towards asThis supplemental petition and reply fur- certaining whether there is sufficient evidence ther alleges that the fraudulent acts of the to sustain that finding. defendant were committed in whole or in Mrs. Fox says that prior to her marriage part in Bexar county, and that some of the with Mr. Fox, in February of the present stock purchased with the money fraudulent year, she lived in San Antonio most of the ly acquired from her were in Bexar county, time for the past six years, and that she had and that since the injunction was issued de- an understanding with Mr. Fox prior to their fendant had disposed of a part of the stock, marriage that they were to be here in San and converted the proceeds to his own use. Antonio; that they were to go to the ranch Harry Becher was made a party. The in- for a short time to get things in order, and junction issued was later modified so that then come back to San Antonio, where he it would not prevent E. A. Fox from collect- would carry on the real estate business. She ing from the State Bank & Trust Company says that she had a room here in the city all the money on deposit in the name of E. A. the time before she was married, and kept Fox or the Fox Realty Company, and he was said room, with her furniture in it, during permitted to check all he desired either as the time she was away from San Antonio, in E. A. Fox or Fox Realty Company.

St. Louis, Chicago, and other places, where Any further statement necessary will ap- her health, pleasure, or business called her. pear in course of the discussion which fol- She says she went to St. Louis for an operalows.

tion on her throat, but she says that, notwithThe main contention is that the evidence standing her trips and the periods of time does not show that the plaintiff had been an she stayed away from San Antonio, it has actual bona fide inhabitant of the state of always been her home for the past six years, Texas for one year and had resided in Bexar and that her understanding and agreement county for six months next preceding the fil- with Mr. Fox was that their home would coning of the petition. This case, as it comes to tinue to be in San Antonio, as it had been in us on the question of jurisdiction, must be the past, except for that temporary absence controlled by the facts in evidence as to the for improving and preparing the ranch for residence of Mrs. Fox, the plaintiff below. the market. She says that Mr. Fox said it

Under the law, as it now stands (article would be a useless expense to take the piano 4632, Vernon's Sayles' Statutes), the petition out to the ranch, and they left it at Goggan's and proof in support thereof must show that music store. Further testifying, she said at the time of the filing of such petition the that he told her they would just go out there plaintiff had been an actual bona fide in- long enough to get some fences fixed up and habitant of the state for a period of twelve the barn fixed, and get things in running or

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