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 jupower, 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, * tion 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 judgment rendered in such cases, by the county court, *** [in all cases] criminal, of which the county court has exclusive or concurrent or original jurisdiction, *** to the Court of der such regulations as may be prescribed by Criminal Appeals, with such exceptions and unlaw. *** The county court shall not have is a criminal district court, unless expressly concriminal jurisdiction in any county where there ferred by law; and in such counties appeals from justices' courts and other inferior * * tribunals in criminal cases shall be to the criminal district court, under such regulations as may be prescribed by law; and in all such cases an appeal shall lie from such district court to the Court of Criminal Appeals."

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 solely this jurisdiction:

"Which shall have and exercise all of the criminal jurisdiction now vested in and exercised by the district court of the Twenty-Eighth judicial district of Texas." (It also vests it with jurisdiction of divorce and tax suits.)

in and exercised by the district courts of Dallas county," just as in this instance. There was no provision in said act relative to appeals to said court. There is none in said act of 1917. At the same session of the Legislature (1893) was passed an act giving the Dallas county court jurisdiction of misdemeanors. In this instance such act had been passed in 1893, expressly vesting the county misdemeanors as shown above. In the Kruecourt of Nueces county with jurisdiction of

It also divests said Twenty-Eighth district court of only all jurisdiction it vests in said criminal district court. Said act of 1917 has no provision giving said criminal district court any original or appellate jurisdiction whatever of any misdemeanor, except for of-gel Case he had been fined in 1905 in the jus

tice's court $25 for carrying a pistol. He appealed to the county court of Dallas county, and was again therein convicted and fined $100. The opinion therein states that he

ficial misconduct, and has no provision conforming the jurisdiction of the county or justice's court to its jurisdiction, but conforms only the jurisdiction of said Twenty-"filed a motion in the county court to dismiss Eighth district court to said criminal district court's jurisdiction.

the appeal on the ground that the county court of Dallas county did not have jurisdiction of said appeal, inasmuch as there was a criminal from the justice's court should be prosecuted to district court in Dallas county, and all appeals said criminal district court, and not to the county court."

His motion was overruled, and he appealed to this court, which held that said Dallas county court had jurisdiction of said appeal, and that said criminal district court did not have. It is true, in said act vesting jurisdiction in said Dallas county court, the Legislature, in the emergency section, expressed "a desire" that the jurisdiction of said Dallas county court should remain as it had been. While the Legislature in this instance, in revesting jurisdiction in the county court of Nueces county, did not express such a desire, there can be no doubt, from said acts and what it did and did not do, that it was the clear intention of the Legislature, as much so as if it had expressly said so, that said jurisdiction should remain in said county court, where it had expressly placed it, and that no original or appellate jurisdiction of misdemeanors was placed or intended to be placed in said criminal district court.

If the Legislature had intended to give said criminal district court, any jurisdiction of misdemeanors it would have been necessary for it to have expressly done so, and would also then have been necessary to have expressly conformed the county court jurisdiction thereto, and also have conformed the appellate jurisdiction of the justice's courts from the county to said criminal district court as expressly required by the Constitution. County courts have concurrent original jurisdiction with the justice courts of all misdemeanors when punishable only by fine not to exceed $200. County courts have exclusive jurisdiction of all misdemeanors where the fine may exceed $200, or where any jail penalty may be imposed (except those involving official misconduct, of which the district courts have exclusive jurisdiction). There are a large number of these offenses, where the fine may exceed $200, or jail imprisonment may be imposed-one or both. Said act of 1917 makes no provision whatever as to any of these. Certainly it could not be held said act gives said criminal district court any jurisdiction of such misdemeanors, because its jurisdiction is expressly stated as copied above, and excludes any such jurisdiction. If the mere creation of said criminal district court could be held to ipso facto or automatically deprive said county court of all such jurisdiction, of which it had unquestionably been given express jurisdiction, then there would necessarily be a large number of of- (Court of Criminal Appeals of Texas. May 15, fenses, of which no court would have jurisdiction, and consequently which could not be punished. All this leads to the inevitable conclusion 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 intoxic. 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. Inhibition 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- held, that the result was declared by an order ture passed an act creating a criminal dis- of the commissioners' court, and that an order trict court for Dallas county, vesting in it was made prohibiting the sale of liquor.

Therefore the judgment of the lower court remanding appellant to the custody of the sheriff was correct, and the judgment is affirmed.

(83 Tex. Cr. R. 415) WRIGHT v. STATE. (No. 5029.)

1918.)

1. INTOXICATING LIQUORS

MENT-SUFFICIENCY.

205(2)-INDICT

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

2. INTOXICATING LIQUORS 36(5) - LOCAL, result the commissioners' court declared the OPTION ELECTIONS-VALIDITY PRESUMP- result of said election in said county.

TIONS.

TERS REVIEWABLE.

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 presumed fied voters thereof, to determine whether or valid, is binding on all courts and all persons. 3. CRIMINAL LAW 1144(13)-APPEAL-MAT- not the sale of intoxicating liquors should be prohibited therein; (2) and the commissioners' court of said county had duly made, passed, and entered its order declaring the result of said election and prohibiting the sale of such liquor in said county; (3) that on or about November 5, 1917, appellant in said state and county, unlawfully and willfully sold such liquor to said Babb; (4) that at the time he made that sale, the sale of such liquor had been prohibited in said county under the laws of said state.

In prosecution for violation of local option haw, where there is no statement of facts, it will be concluded on appeal that everything necessary to be proved to put the prohibition law in force was proved.

Appeal from District Court, Bowie County; H. F. O'Neal, Judge.

Bennie Wright was convicted of a violation of the prohibition law, and he appeals. Af

firmed.

Sid Crumpton, of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J. This is an appeal from a conviction for the violation of the prohibition law in Bowie county—a felony.

The statute prescribing said offense (article 597, P. C., by the Acts 1909, p. 356) is:

*

"If any person shall sell any intoxicating liquor in any county * * in which the sale of intoxicating liquors shall hereafter be prohibited under the laws of this state, *** he shall be punished by confinement in the penitentiary," fixing the term.

Article 464, C. C. P., is:

There is neither a statement of facts ner 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 not guilty." Further: "You are instructed that the sale of intoxicating liquors has been prohibited by law in Bowie county since the 15th day of April, 1910." The beginning and conclusion of the indictment are regular and in the usual form. Then it alleges:

"That Bennie Wright in said county and state (in which said county the sale of intoxicating liquor had been prohibited under the laws of said state), on or about November 5, 1917, did then and there unlawfully and willfully sell to C. C. Babb intoxicating liquor after an election had been held March 5, 1910, in said Bowie county by the qualified voters thereof in accordance with the law to determine whether or not the sale of intoxicating liquors should be prohibited in said Bowie county, and the commissioners' court of said county had duly made, passed, and entered its order declaring the result of said election and prohibiting the sale of intoxicating liquor in said Bowie county as required by said law, and the county judge of said county had caused said order to be published in the manner and form and for the length of time required by law."

See, also, articles 453 and 460, C. C. P.

The averments in the indictment herein completely comply with these statutes, and are all, if not more, than are necessary to charge the offense. The averments in said indictment necessarily include and embrace each of the averments which appellant claims was omitted therefrom, even if it could be held they were omitted or necessary. Holloway v. State, 53 Tex. Cr. R. 246, 110 S. W. 745; Williams v. State, 52 Tex. Cr. R. 431, 107 S. W. 825; Stephens v. State, 97 S. W. 485; Shilling v. State, 51 S. W. 241. also, other cases cited in section 1222, 1 Branch's Ann. P. C.

See,

[2] By Acts 1907, p. 447, now article 5728, R. S., any one who desires to contest any prohibition election shall do so in the district court within 30 days after the result thereof is declared by the commissioners' court. In such contest the district court has 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 of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding upon all courts."

The record herein in no way shows or intimates that any such contest was filed. Hence it is conclusive there was none. Under such circumstances, this court has all the time and in a large number of cases held that said law binds and is conclusive on this and all other courts, and upon all persons. Some of them are cited in 1 Branch's Ann. P. C. § 1228.

[4. NEGLIGENCE

82-ACTION-DEFENSE. Contributory negligence is a complete defense to an action based on defendant's negligence, whether it caused the injury alone or concurred with the negligence of defendant in producing the result.

Appeal from Refugio County Court; Eugene Low, Judge.

Suit by G. W. Moss against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

E. H. Crenshaw, Jr., of Kingsville, and Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellants. J. Turner Vance, of Refugio, for appellee.

Under said act and the other laws, at most, all that is required to allege to show the proFLY, 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 ter 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 reached Bay City, at the junction of the line of the initial carrier and the connecting carrier, and all the evidence tended to show that they were killed by other bulls, in fights which it was proved were taking place at every point where they were noticed.

In Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 815, this court, through Judge Ramsey, after citing said act of 1907 above, said:

"We must and shall assume that the judgment and decree putting local option in force, and the proclamation of the county judge, had the effect to institute the law in that county, and that this presumption and conclusion are conclusive on us and on appellant."

[3] As there is no statement of facts, we must conclude that everything necessary to be proved to put the prohibition law in force was proved.

The judgment is affirmed.

[1] It is not contended by appellee that any negligent handling of the dead bulls was proved, but the contention is that there was "only circumstantial evidence that the bulls injured themselves, and it does not exclude the hypothesis that they might have 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 circum

1. EVIDENCE

DENCE.

April 24, 1918.)

587-CIRCUMSTANTIAL EVI

A fact may be proved by circumstantial evidence alone which does not exclude every other hypothesis; it being sufficient if the circum

stances establish a preponderance of the evi

dence in favor of the fact to be proved.
2. CARRIERS 228(5)—SHIPMENT OF STOCK-

EVIDENCE.

In shipper's action for negligent handling of carload of bulls, evidence held not to show defendant was negligent.

3. CARRIERS 217(2)-SHIPMENTS OF STOCK -CONTRIBUTORY NEGLIGENCE.

If the negligence of plaintiff shipper, in placing vicious bulls unconfined in a car together, contributed to injury to them, he could not recover, and his negligence need not have been the sole proximate cause of injury.

stances establish a preponderance of the evidence in favor of a certain proposition, it is proved. All the circumstances in this case, however, point to the irresistible conclusion that the bulls were killed by their companions.

the part of the carrier in connection with the four dead bulls, but they were fighting all along the way, and when one was down and attempted to rise the bulls standing would toss him on their horns to the other end of the car, and some of the bulls were shown to be very vicious, and ten of them had to be tied at Bay City to prevent fighting. There was positive testimony by witness Toups that "the dead bulls that were taken out of the car at Bay City were knocked

No negligence was shown on

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

The verdict cannot be tortured into a finding that it was negligence to allow the cattle to remain in the car on the transfer switch of the connecting carrier, for the jury distinctly found that the whole negligence occurred "in transportation" of the cattle on the line of the initial carrier.

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 in the loading pens and while being loaded; that they were inherently vicious, and the appellee knew the fighting qualities of the bulls; and yet in the face of all the testimony the jury answered that the failure to tie the bulls and the fighting instincts of the bulls was not the "sole proximate cause" of their death. The jury found, however, that there was no evidence to show what causes other than the fighting contributed to the death of the two bulls that died after being taken from the car, and of course they could not find any other causes than the fighting as to the four dead bulls. As requested by appellants, the jury should have been instructed that they should not consider the four dead bulls or the wounded ones found in the car at Bay City in making up their verdict.

[3, 4] The jury found that the bulls were inherently vicious and full of fighting qualities, but the court failed and refused to permit the jury to pass on whether that vice was the proximate cause of the death of the six bulls and the injury to the others, although the testimony, which is not assailed, showed that they were gored, bruised, and injured in a way clearly indicating that such injuries had resulted from the attacks of one upon the other. The court proceeded upon the theory that in order to preclude a recovery the negligence of appellee in placing vicious bulls unconfined in a car together must have been the sole proximate cause of the injury to the bulls, while the law is that if the negligence of appellee contributed to the injury to the bulls he could not recover. Contributory negligence is a complete defense to an action based on the negligence of the defendant, whether it caused the injury alone, or concurred with the negligence of the defendant in producing the result. This is the rule in every case in which a different rule is not laid down by statute, as in cases of comparative negligence. Any negligence of a plaintiff which is a proximate cause of the injury of which complaint is made will prevent a recovery, no matter how negligent the defendant may have been. Andrews V. Mynier, 190 S. W. 1164; Railway v. Foth, 45 Tex. Civ. App. 275, 100 S. W. 177; Id., 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; Brew

[2] There was no evidence whatever of negligent handling of the cattle by the initial carrier, but, on the other hand, the proof was positive that the train received the "usual handling of such trains. There was no unusual stopping, bumping, or jolting," and there were no delays, and when the train reached Bay City the car containing the bulls was placed, in about 15 or 20 minutes, on the transfer track of the connecting carrier, the Gulf, Colorado & Santa Fé Railway Company. In spite of this testimony the jury found that the shrinkage in the weight of the fourteen bulls that reached Ft. Worth was due to "neglect in transportation over the St. Louis, Brownsville & Mexico Railroad Company." According to the answers of the jury the whole of the damage occurred before the cattle were delivered by the initial to the connecting carrier. All of the bulls that had horns were tied at Baying Association v. Wolfshohl, 155 S. W. 644. City, and it is a significant fact that none of the animals were hurt after that was done. It could not have been the delay on the siding at Bay City that caused the death of the six bulls, for the uncontroverted evidence showed that four were dead when they reached Bay City and two were injured and down and could not get up although an effort was made to get them up. The cattle were delivered to the connecting carrier by the initial carrier at 12:30 a. m., about 8 hours and 45 minutes after they started from Refugio. It was not contended that there was any delay in making the run from Refugio to Bay City. It does not appear that there was a contract limiting the liability of the initial carrier to its own line, and none seems to have been necessary, because the whole of the damages is attributed by the jury to the neglect of the initial carrier in transporting the cattle from Refugio to Bay City. That finding was equivalent to a conclusion that

no negligence after the cattle reached Bay City, and there being no evi

Under the facts of this case a verdict as to the six dead bulls, as well as for shrinkage of the remaining fourteen, should have been instructed for appellants, and this court would render judgment for appellants, were it not apparent that the case has not been fully developed as to the shrinkage of the arimals from the time they were placed on the transfer switch at Bay City until they were delivered in Ft. Worth, and while it would be extremely difficult, as suggested by appellant, to separate any shrinkage in the weight of the cattle arising from delay in transportation from the shrinkage resulting from the combative propensities of the bulls, still it is possible that it may be done, and we feel that it is just to allow another opportunity to separate the damages if possible. It does not appear that the vicious propensities of the bulls were indulged in after the cattle left Bay City, as those with horns were tied. It does not appear that the four hornless bulls that were loose in the car indulged in the pastime of battering their fel