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tions as may be prescribed by law, and section posed shall exceed two hundred dollars. 22, providing that the Legislature shall have They [county courts] shall have appellate ju. power, by local or general law, to increase, di- risdiction in cases * * of which justices' minish, or change the civil and criminal jurisdic- courts have original jurisdiction,

untion of county courts, and that, in cases of any der such regulations as may be prescribed by such change of jurisdiction, the Legislature law. In all appeals from justices' courts there "shall also conform the jurisdiction of the other shall be a trial de novo in the county court; courts to such change."

and appeals may be prosecuted from the final Appeal from Criminal District Court. judgment rendered in such cases, by the

county

court, * * * [in all cases] criminal, of which Nueces County; Walter F. Timon, Judge. the county court has exclusive or concurrent or

Habeas corpus proceedings by Ramon Bela- original jurisdiction, * * * to the Court of do. From a judgment remanding him to the der such regulations as may be prescribed by

Criminal Appeals, with such exceptions and unsheriff, he appeals. Affirmed.

law. * * * The county court shall not have Pope & Sutherland, of Corpus Christi, for is a criminal district court, unless expressly con

criminal jurisdiction in any county where there appellant. E. B. Hendricks, Asst. Atty. Gen., ferred by law; and in such counties appeals from for the State.

justices' courts and other inferior *** * tribunals in criminal cases shall be to the crim

inal district court, under such regulations as PRENDERGAST, J. In November, 1917, may be prescribed by law; and in all such cases appellant was convicted in the county court an appeal shall lie from such district court to of Nueces county of violating the Pure Food the Court of Criminal Appeals." Law and fined $25. The costs were a little Only that portion of said section which apmore than that sum. The proper judgment plies to criminal cases is quoted. The part was rendered, and thereon a proper writ was as to civil cases and business is omitted, beissued, commanding the sheriff to take cus- cause inapplicable. tody of him and keep him until he paid the Article 5, $ 22, is: fine and costs. The officer took charge of "The Legislature shall have nower, by local him thereunder and placed him in jail. He or general law, to increase, diminish or change

the civil and criminal jurisdiction of county refused to pay the fine and costs. On Decourts; and, in cases of any such change of jucember 7th he sued out a writ of habeas cor- risdiction, the Legislature shall also conform the pus before Judge Timon, judge of the crimi- jurisdiction of the other courts to such change." nal district court of said county. Upon hear- The statute first passed after the Constituing the cause under said writ, Judge Timon tion of 1876 was adopted, organizing county remanded him to the custody of the sheriff. I courts, expressly gave those courts jurisdicAppellant claimed that the county court had tion of all misdemeanors, except those inno jurisdiction to try him, and that only said volving official misconduct, "and except in criminal district court had such jurisdiction. counties where there is established a crim

His contention is that, because at the time inal district court,” strictly in accordance of his trial there was a criminal district with the Constitution. (This article is now 98 court for said county, thereby under the Con- of the C. C. P. and in the same language as stitution and statute the county court was originally enacted.) At that time, and for wholly deprived of any jurisdiction of crimi- many years thereafter, Galveston and Harris nal misdemeanor cases and offenses. Article counties were the only ones which had a 5, § 1, of the Constitution, vests the judicial criminal district court. So that unquestionpower of this state in the Supreme Court, ably the county court of Nueces county was Courts of Civil Appeals, Court of Criminal vested with jurisdiction over misdemeanors. Appeals, district courts, county courts, com- By Acts 1881, p. 13, jurisdiction of all mismissioners' and justice of the peace courts, demeanors of which the county court of and in such other courts as may be provided Nueces county at that time had jurisdiction by law. The criminal district court in Gal- was expressly taken therefrom (and from veston and Harris counties was kept in force many other counties also), and was thereby by the Constitution of 1876 and the amend- vested in the regular district court of that ment of this section of September 22, 1891, county, and the jurisdiction of all the other but the Legislature was given power to pro- courts conformed thereto. Then by Acts vide otherwise as to that criminal district 1893, p. 19, said act of 1881 was repealed, and

Said amendment added this to said jurisdiction of all misdemeanors, which it section:

first had, was taken from said district court, “The Legislature may establish such other and expressly revested in said county court, courts as it may deem necessary, and prescribe where it has ever since remained. the jurisdiction and organization thereof, and may conform the jurisdiction of the district and since 1891 Nueces county has continuously 'other inferior courts thereto.”

been in the Twenty-Eighth judicial district, Article 5, § 16, of the Constitution of 1876, and ever since said act of 1893, until Acts and the amendment thereof adopted on Sep- 1917, p. 76, has had jurisdiction only of all tember 22, 1891, vests jurisdiction in every criminal cases-felonies and civil cases excounty court of every county as follows: pressly given to it by article 5, § 8, of the

"The county court shall have original juris- Constitution. It has never since had nor exdiction of all misdemeanors of which exclusive ercised jurisdiction, original or appellate, of original jurisdiction is not given to the justice's court as the same is now or may hereafter be any misdemeanors, except those involving The said act of 1917 created a criminal dis-, only “all the criminal jurisdiction now vested trict court for Nueces county and vested in it in and exercised by the district courts of Dalsolely this jurisdiction:

las county,” just as in this instance. There "Which shall have and exercise all of the crim- was no provision in said act relative to apinal jurisdiction now vested in and exercised peals to said court. There is none in said by the district court of the Twenty-Eighth judicial district of Texas." (It also vests it with act of 1917. At the same session of the Legisjurisdiction of divorce and tax suits.)

lature (1893) was passed an act giving the

Dallas county court jurisdiction of misdeIt also divests said Twenty-Eighth district court of only all jurisdiction it vests in said meanors. In this instance such act had been criminal district court. Said act of 1917 has passed in 1893, expressly vesting the county no provision giving said criminal district misdemeanors as shown above. In the Krue

court of Nueces county with jurisdiction of court any original or appellate jurisdiction whatever of any misdemeanor, except for of- gel Case he had been fined in 1905 in the jusficial misconduct, and has no provision con- pealed to the county court of Dallas county,

tice's court $25 for carrying a pistol. He apforming the jurisdiction of the county or and was again therein convicted and fined justice's court to its jurisdiction, but con- $100. The opinion therein states that he formis only the jurisdiction of said Twenty- "filed a motion in the county court to dismiss Eighth district court to said criminal dis- the appeal on the ground that the county court trict court's jurisdiction.

of Dallas county did not have jurisdiction of If the Legislature had intended to give said said appeal, inasmuch as there was a criminal criminal district court, any jurisdiction of from the justice's

court should be prosecuted to

district court in Dallas county, and all appeals misdemeanors it would have been necessary said criminal district court, and not to the for it to have expressly done so, and would county court." also then have been necessary to have ex- His motion was overruled, and he appealed pressly conformed the county court juris- to this court, which held that said Dallas diction thereto, and also have conformed the county court had jurisdiction of said appeal, appellate jurisdiction of the justice's courts and that said criminal district court did not from the county to said criminal district have. It is true, in said act vesting jurisdiccourt as expressly required by the Constitu- tion in said Dallas county court, the Legislation. County courts have concurrent original ture, in the emergency section, expressed “a jurisdiction with the justice courts of all mis- desire” that the jurisdiction of said Dallas demeanors when punishable only by fine not to county court should remain as it had been. exceed $200. County courts have exclusive While the Legislature in this instance, in rejurisdiction of all misdemeanors where the vesting jurisdiction in the county court of fine may exceed $200, or where any jail penal- Nueces county, did not express such a desire, ty may be imposed (except those involving of- there can be no doubt, from said acts and ficial misconduct, of which the district courts what it did and did not do, that it was the have exclusive jurisdiction). There are a clear intention of the Legislature, as much so large number of these offenses, where the fine as if it had expressly said so, that said jurismay exceed $200, or jail imprisonment may diction should remain in said county court, be imposed-one or both. Said act of 1917 | where it had expressly placed it, and that no makes no provision whatever as to any of original or appellate jurisdiction of misdethese. Certainly it could not be held said act meanors was placed or intended to be placed gives said criminal district court any juris-in said criminal district court. diction of such misdemeanors, because its Therefore the judgment of the lower court jurisdiction is expressly stated as copied remanding appellant to the custody of the above, and excludes any such jurisdiction. If sheriff was correct, and the judgment is afthe mere creation of said criminal district firmed. court could be held to ipso facto or automatically deprive said county court of all such

(83 Tex. Cr. R. 415) jurisdiction, of which it had unquestionably been given express jurisdiction, then there

WRIGHT v. STATE. (No. 5029.) would necessarily be a large number of of- (Court of Criminal Appeals of Texas. May 15, fenses, of which no court would have juris

1918.) diction, and consequently which could not be 1. INTOXICATING LIQUORS Own 205(2)—INDICTpunished. All this leads to the inevitable con- MENT-SUFFICIENCY. clusion that the Legislature clearly intended

In view of Acts 31st Leg. (1st Called Sess.) that the jurisdiction of misdemeanors should Proc. 1911, art. 464, relating to sales of intoxi

c. 35 (Pen. Code 1911, art. 597), and Code Cr. remain in said county court of Nueces county, cating liquors, and article 453, relating to cerwhere it had been expressly placed as shown. tainty, in indictments, and Acts 30th Leg. (1st

Called Sess.) c. 8 (Rev. St. 1911, art. 5728), reThe only case found which is regarded in lating to local option elections, to show the propoint is Kruegel v. State, 84 S. W. 1064. In hibition law was in effect, an indictment need

, that case it is shown that in 1893 the Legisla- only allege that a prohibition election was ture passed an act creating a criminal dis- of the commissioners' court, and that an order

held, that the result was declared by an order trict court for Dallas county, vesting in it was made prohibiting the sale of liquor.

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

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* he

2. INTOXICATING LIQUORS C36(5) - LOCAL , result the commissioners' court declared the

ww36—
OPTION ELECTIONS - VALIDITY - PRESUMP-result of said election in said county.
TIONS.
Acts 30th Leg. (1st Called Sess.) c. 8 (Rev.

The indictment, as seen therefrom, plainly St. 1911, art. 5728), providing that if local op- avers: (1) That on March 5, 1910, an election election is not contested within 30 days as tion was held in Bowie county, by the qualitherein prescribed it is conclusively presųmed fied voters thereof, to determine whether or valid, is binding on all courts and all persons not the sale of intoxicating liquors should be

. 3. CRIMINAL LAW Ow1144(13)-APPEAL-MAT- not the sale of intoxicating liquors should be TERS REVIEWABLE.

prohibited therein; (2) and the commissionIn prosecution for violation of local option ers' court of said county had duly made, law, where there is no statement of facts, it passed, and entered its order declaring the will be concluded on appeal that everything necessary to be proved to put the prohibition law in result of said election and prohibiting the force was proved.

sale of such liquor in said county; (3) that Appeal from District Court, Bowie County; on or about November 5, 1917, appellant in

; H. F. O'Neal, Judge.

said state and county, unlawfully and willBennie Wright was convicted of a violation fully sold such liquor to said Babb; (4) that of the prohibition law, and he appeals. Af- at the time he made that sale, the sale of firmed.

such liquor had been prohibited in said coun

ty under the laws of said state. Sid Crumpton, of Texarkana, for appel

The statute prescribing said offense (artilant. E. B. Hendricks, Asst. Atty. Gen., for cle 597, P. C., by the Acts 1909, p. 356) is : the State.

"If any person shall sell any intoxicating liquor in any county

in which the sale PRENDERGAST, J. This is an appeal of intoxicating liquors shall hereafter be prohib

ited under the laws of this state, from a conviction for the violation of the pro- shall be punished by confinement in the penhibition law in Bowie county-a felony. itentiary,” fixing the term. There is neither a statement of facts ner

Article 464, 0. C. P., is: a bill of exceptions in the record. The charge

"Selling Intoxicating Liquor; Sufficient Alof the court, which was in no way excepted legations as to.-In an indictment for selling into, among other things, instructed the jury toxicating liquors in violation of any law of this that appellant stood charged by indictment state, it shall be sufficient to charge that the

defendant sold intoxicating liquors contrary to with unlawfully having sold intoxicating liq-law, naming the person to whom sold, without uor to C. C. Babb on or about November 5, stating the quantity sold; and, under such in1917, in Bowie county, Tex., "after the sale dictment, any act of selling in violation of the of intoxicating liquors had been prohibited law may be proved.” by law in said county, and that he pleaded See, also, articles 453 and 460, C. C. P. not guilty.” Further: “You are instructed The averments in the indictment herein that the sale of intoxicating liquors has been completely comply with these statutes, and prohibited by law in Bowie county since the are all, if not more, than are necessary to 15th day of April, 1910.” The beginning and charge the offense. The averments in said conclusion of the indictment are regular and indictment necessarily include and embrace in the usual form. Then it alleges :

each of the averments which appellant claims "That Bennie Wright in said county and was omitted therefrom, even if it could be state (in which said county the sale of intoxicat-held they were omitted or necessary. Holloing liquor had been prohibited under the laws of said state), on or about November 5, 1917. way v. State, 53 Tex, Cr. R. 246, 110 S. W. did then and there unlawfully and willfully | 745; Williams v. State, 52 Tex. Cr. R. 431, sell to C. C. Babb intoxicating liquor after an 107 S. W. 825; Stephens v. State, 97 S. W. election had been held March 5, 1910, in said

See, Bowie county by the qualified voters thereof in 485; Shilling v. State, 51 S. W. 241. accordance with the law to determine whether also, other cases cited in section 1222, 1 or not the sale of intoxicating liquors should Branch's Ann. P. C. be prohibited in said Bowie county, and the commissioners' court of said county had duly

[2] By Acts 1907, p. 447, now article 5728, made, passed, and entered its order declaring R. S., any one who desires to contest any the result of said election and prohibiting the prohibition election shall do so in the dissale of intoxicating liquor in said Bowie county trict court within 30 days after the result as required by said law, and the county judge of said county had caused said order to be pub- thereof is declared by the commissioners' lished in the manner and form and for the length court. In such contest the district court has of time required by law."

exclusive jurisdiction to determine all ques[1] No motion was made to quash the in- tions relative to the legality and validity of dictment, nor was it in any way attacked said election, etc., to try and determine all before the conviction. After the conviction matters connected therewith, including the appellant made a motion for a new trial and petition therefor, and all proceedings and orto arrest the judgment on the grounds that ders relative thereto, embracing final count, the indictment failed to allege: (1) That at and declaration and publication of the result said election so held it resulted in prohibit-putting local option into effect. The result ing the sale of such liquor in said county; of such contest shall finally settle all ques(2) that at such election the majority of the tions relating to the validity of said election, qualified voters voted in favor of prohibiting and it shall not be permissible to again call the sale of such liquors; (3) that upon such a the legality of said election in question in any other suit or proceeding; "and if no contest, 4. NEGLIGENCE 82—ACTION-DEFENSE. of said election is filed and prosecuted in the

Contributory negligence is a complete demanner and within the time provided above, fense to an action based on defendant's negli

, it shall be conclusively presumed that said concurred with the negligence of defendant in election as held and the result thereof de- producing the result. clared are in all respects valid and binding

Appeal from Refugio County Court; Euupon all courts."

gene Low, Judge. The record herein in no way shows or in

Suit by G. W. Moss against the St. Louis, timates that any such contest was filed. Brownsville & Mexico Railway Company and Hence it is conclusive there was none. Under another. Judgment for plaintiff, and defendsuch circumstances, this court has all the ants appeal. Reversed and remanded. time and in a large number of cases held that said law binds and is conclusive on this Proctor, Vandenberge, Crain & Mitchell

, of

E. H. Crenshaw, Jr., of Kingsville, and and all other courts, and upon all persons.

,

J. Turner Vance,

. Some of them are cited in i Branch's Ann. Victoria, for appellants.

of Refugio, for appellee. P. C. $ 1228.

Under said act and the other laws, at most, all that is required to allege to show the pro

FLY, C. J. Appellee sued appellants, the hibition law is in force, and as to such mat- one named in the style of this case and the cer make a good indictment, is that such pro- Gulf, Colorado & Santa Fé Railway Comhibition election had been held (Nobles v. pany, to recover damages alleged to have State, 71 Tex. Cr. R. 123, 158 S. W. 1133, and arisen through the negligent handling of a cases there cited), the result thereof declared carload of bulls, shipped from Refugio, Tex., by an order of the commissioners' court, and to Ft. Worth, Tex., on November 17, 1916. an order of the commissioners' court made The cause was submitted to a jury on speand entered prohibiting the sale of such liq-cial issues and a judgment, supposedly basuor, and that such order had been duly pub- ed on the answers of the jury, was rendered lished in accordance with law. This indict- in favor of appellee for $411.01 against both ment did all this, and more, too, as shown railways. The evidence showed that four of above.

the bulls were dead in the car when they In Doyle v. State, 59 Tex. Cr. R. 61, 127 S. reached Bay City, at the junction of the W. 815, this court, through Judge Ramsey, line of the initial carrier and the connecting after citing said act of 1907 above, said: carrier, and all the evidence tended to show

"We must and shall assume that the judg- that they were killed by other bulls, in fights ment and decree putting local option in force, which it was proved were taking place at and the proclamation of the county judge, had the effect to institute the law in that county, every point where they were noticed. and that this presumption and conclusion are [1] It is not contended by appellee that conclusive on us and on appellant."

any negligent handling of the dead bulls [3] As there is no statement of facts, we was proved, but the contention is that there must conclude that everything necessary to was "only circumstantial evidence that the be proved to put the prohibition law in force bulls injured themselves, and it does not exwas proved.

clude the hypothesis that they might have The judgment is affirmed.

been injured otherwise.” A fact can be proved by circumstances as well as by direct testimony, and we know of no rule that

such circumstantial evidence must exclude ST. LOUIS, B. & M. RY. CO. et al. v. MOSS. every hypothesis that something might have (No. 6022.)

happened other than the fact established by (Court of Civil Appeals of Texas. San Antonio. the circumstantial evidence. If the circumApril 24, 1918.)

stances establish a preponderance of the

evidence in favor of a certain proposition, 1. EVIDENCE Cw587—CIRCUMSTANTIAL Evi- it is proved.

it is proved. All the circumstances in this DENCE.

A fact may be proved by circumstantial evi- , case, however, point to the irresistible condence alone which does not exclude every other clusion that the bulls were killed by their hypothesis; it being sufficient if the circumstances establish a preponderance of the evi

companions. No negligence was shown on dence in favor of the fact to be proved.

the part of the carrier in connection with the 2. CARRIERS Own 228(5)—SHIPMENT OF STOCK

four dead bulls, but they were fighting all EVIDENCE.

along the way, and when one was down and In shipper's action for pegligent handling of attempted to rise the bulls standing would carload of bulls, evidence held not to show de- toss him on their horns to the other end of fendant was negligent. 3. CARRIERS Ow217(2)-SHIPMENTS OF STOCK the car, and some of the bulls were shown -CONTRIBUTORY NEGLIGENCE.

to be very vicious, and ten of them had to If the negligence of plaintiff shipper, in plac- be tied at Bay City to prevent fighting. ing vicious bulls unconfined in a car together, There was positive testimony by witness contributed to injury to them, he could not recover, and his negligence need 'not have been the Toups that "the dead bulls that were taken sole proximate cause of injury.

out of the car at Bay City were knocked

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

down and trampled to death by the other Bay City, there is no basis for the judgment. bulls." The jury found that the bulls fought The verdict cannot be tortured into a finding in the loading pens and while being loaded; that it was negligence to allow the cattle to that they were inherently vicious, and the remain in the car on the transfer switch of appellee knew the fighting qualities of the the connecting carrier, for the jury distinctly bulls; and yet in the face of all the testi- found that the whole negligence occurred “in mony the jury answered that the failure to transportation" of the cattle on the line of tie the bulls and the fighting instincts of the the initial carrier. bulls was not the "sole proximate cause" of [3, 4] The jury found that the bulls were their death. The jury found, however, that inherently vicious and full of fighting qualithere was no evidence to show what causes ties, but the court failed and refused to other than the fighting contributed to the permit the jury to pass on whether that vice death of the two bulls that died after being was the proximate cause of the death of the taken from the car, and of course they could six bulls and the injury to the others, alnot find any other causes than the fighting though the testimony, which is not assailed, as to the four dead bulls. As requested by showed that they were gored, bruised, and appellants, the jury should have been in- injured in a way clearly indicating that such structed that they should not consider the injuries had resulted from the attacks of four dead bulls or the wounded ones found one upon the other. The court proceeded upin the car at Bay City in making up their on the theory that in order to preclude a reverdict.

covery the negligence of appellee in placing [2] There was no evidence whatever of vicious bulls unconfined in a car together negligent handling of the cattle by the ini- must have been the sole proximate cause of tial carrier, but, on the other hand, the proof the injury to the bulls, while the law is that was positive that the train received the if the negligence of appellee contributed to "usual handling of such trains. There was no the injury to the bulls he could not recover. unusual stopping, bumping, or jolting," and Contributory negligence is a complete dethere were no delays, and when the train fense to an action based on the negligence of reached Bay City the car containing the the defendant, whether it caused the injury bulls was placed, in about 15 or 20 minutes, alone, or concurred with the negligence of on the transfer track of the connecting car- the defendant in producing the result. rier, the Gulf, Colorado & Santa Fé Rail- is the rule in every case in which a different way Company. In spite of this testimony rule is not laid down by statute, as in cases, the jury found that the shrinkage in the of comparative negligence. Any negligence weight of the fourteen bulls that reached of a plaintiff which is a proximate cause of Ft. Worth was due to "neglect in transporta- the injury of which complaint is made will tion over the St. Louis, Brownsville & Mexico prevent a recovery, no matter how negligent Railroad Company.” According to the an- the defendant may have been. Andrews v. swers of the jury the whole of the damage Mynier, 190 S. W. 1161; Railway v. Foth, 45 occurred before the cattle were delivered by Tex. Civ. App. 275, 100 S. W. 177; Id., 101 the initial to the connecting carrier. All of Tex. 133, 100 S. W. 171, 105 S. W. 322; Brewthe bulls that had horns were tied at Bay | ing Association v. Wolfshohl, 155 S. W. 614. City, and it is a significant fact that none

ne Under the facts of this case a verdict as to of the animals were hurt after that was done. the six dead bulls, as well as for shrinkage It could not have been the delay on the sid- of the remaining fourteen, should have been ing at Bay City that caused the death of the instructed for appellants, and this court six bulls, for the uncontroverted evidence would render judgment for appellants, were showed that four were dead when they reach- it not apparent that the case has not been ed Bay City and two were injured and down fully developed as to the shrinkage of the and could not get up although an effort was arimals from the time they were placed on made to get them up. The cattle were deliv- the transfer switch at Bay City until they ered to the connecting carrier by the initial were delivered in Ft. Worth, and while it carrier at 12:30 a. m., about 8 hours and would be extremely difficult, as suggested by 45 minutes after they started from Refugio. appellant, to separate any shrinkage in the It was not contended that there was any de- weight of the cattle arising from delay in lay in making the run from Refugio to Bay transportation from the shrinkage resulting City. It does not appear that there was a from the combative propensities of the bulls, contract limiting the liability of the initial still it is possible that it may be done, and carrier to its own line, and none seems to we feel that it is just to allow another ophave been necessary, because the whole of portunity to separate the damages if possithe damages is attributed by the jury to the ble. It does not appear that the vicious proneglect of the initial carrier in transporting pensities of the bulls were indulged in after the cattle from Refugio to Bay City. That the cattle left Bay City, as those with horns finding was equivalent to a conclusion that were tied. It does not appear that the four there was no negligence after the cattle hornless bulls that were loose in the car inreached Bay City, and there being no evi- dulged in the pastime of battering their fel

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