can National Ry. Co. v. Crum, 6 Tex. Civ. The streets must be intended partly for that App. 702, 25 S. W. 1126. It is simply one in purpose. Analogies and instances of less imwhich the person "holding the reins" of a portance and clarity are abundant. Patton hose wagon, while proceeding to a fire, took Worsham Drug Co. v. Drennan, 104 Tex. 62, on an inhabitant of the city to aid in fight- 133 S. W. 871; Texas & P. Ry, Co. v. Roseing the fire. Even as between him and the dale St. Ry. Co., 64 Tex. 80, 53 Am. Rep. plaintiff, the latter was not, under the cir- 739; Taylor v. Dunn, 80 Tex. 652, 16 S. W. cumstances, a mere licensee. The exigency 732; note 20 L. R. A. (N. S.) 748-754; 13 of arriving at the scene of the fire speedily made it reasonable that the driver would not have permitted an outsider to mount the wagon if he had not needed his assistance. A stop or slackening of speed in such circumstances would more reasonably be an invitation than a mere permission. It may, moreover, be doubted that, as between the city and plaintiff, under the allegations, the city was in a position to question collaterally what the right of the plaintiff was upon the wagon. In this respect and in the fact that the wagon was proceeding upon a public street instead of a railroad track owned by defendant, the case is distinguished from St. Louis S. W. Ry. Co. v. Spivey, 97 Tex. 143, 76 S. W. 748, and Lovett v. Gulf, C. & S. F. Ry. Co., 97 Tex. 436, 79 S. W. 514. It can not be said that, as to the only premises alleged to be under the control of the citythat is, the street-Schlegel was either a trespasser or a licensee. R. C. L. 374-376. In the case of Taylor v. Dunn, above cited, it is held that the obstruction of a street by a railroad was a rightful use, because consistent with the purpose "for which streets exist" and "necessary." Ruling Case Law and the L. R. A. note, also above cited, are based upon many well-considered authorities, deciding that the duties of a municipal corporation as to its streets are owed a fireman speeding to a fire on a fire truck, even though he be an employee of the city. It seems clear, since the use that was being made in the case at bar was not only necessary and one for which the streets were designed, but was also recognized by the charter and was usual and proper, that the street duties of the city of Austin extended to it. None of the points made by defendant against the petition appear to be tenable, and no other reason is seen, by inspection of it, that would have justified the sustaining of the general demurrer. This conclusion makes it unnecessary to pass upon the question of whether the plaintiff would have appeared as an invitee on the hose wagon, had it been alleged to be the property and charge of the city, and on the question of whether the pe law and fact, that the plaintiff, in substance, was "lawfully entitled" to be where he was at the time of the accident, and that the city "owed him the duty" of reasonable care to have the street reasonably safe. [5] Whether the defendant owed him any care as to the street is a related question, which is raised in its fourth point. It there avers that it owed him no duty because he and the conveyance were not making an ordinary and usual use of the street. Fire fighting, upon the part of an inhabit-tition was aided by an allegation, of mixed ant of a city, proceeds, at least partly, from motives of defending the lives and property of others and of defending the inhabitant's own life and property against a spreading or general conflagration, As progress is made from village to modern city life, the municipality, first recognizing and permitting, and later fostering, private fire fighting, and finally assuming this necessary function itself, becomes in most cases primarily the agency of it. But the expression of the natural tendency of the inhabitants can never be entirely foregone; and in time of unusual calamity, when the city forces are not large enough to cope with the situation, aid from volunteers becomes, and always will become, indispensable. The need is always latent, as is the consequent propriety that inhabitants be present at the scene of the fire. Going to fires, then, is not only a customary, but a usual, thing, and one that under proper regulations perhaps should not be discouraged. The instance of a volunteer service and of the sounding of a loud alarm as in this case, under the allegations, emphasizes the point. Fires are frequent and usual in cities; and the only way successfully to quell them is for the fighters, whether regulars or volunteers, to proceed with sufficient men and apparatus, speedily over streets and highways. [6] The other points made by the city are to the effect that the verdict of the jury in plaintiff's favor is without evidence to support it. The contentions are that plaintiff got upon the wagon after it had passed the alleged hole in the street, and, hence, that the latter could not have caused the accident, that, had the facts been otherwise, there was no evidence that the hole caused the accident; and that, under the evidence, it was physically impossible, at the time plaintiff lost his footing, for the wagon to have attained a momentum which, from the effects of dropping into the hole, was sufficient to have caused the jolt described by him. There was evidence of some probative value that the wagon stopped, and that plaintiff boarded it, before a turn was made at the corner of Navasota and Twelfth streets, and that at this corner, and within the intersection of the streets-not only in Navasota street, but also in Navasota "out of Twelfth street"-was a hole about 18 inches in circumference and a foot deep, so situated as to be in front of the wagon when it (257 S.W.) started. It was not undisputed, therefore, impossible occurrence, even had one hind that the accident occurred after the hole was wheel of the vehicle been resting in the hole passed. at the time of the stop. It would seem for these reasons that defendant's final contention should be overruled. We recommend that the judgments of the district court and of the Court of Civil Appeals be affirmed. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. MARTIN v. McKEAN & MCNEAL. Jan. 16, 1924.) The evidence was not very satisfactory upon the question of whether this hole caused the jolt that made plaintiff fall. But there was some evidence. The occurrence was upon a dark night. There was, consequently, no eyewitness. Plaintiff might have been credited with detailing all the direct facts possible to be stated under the circumstances. A person living near the corner testified that the street was in usual condition, except for the hole, and that the latter was in the natural path of vehicles turning the corner. He said: "It was just in the way where the wheel of the wagon would run across it." The defect had evidently been made by vehicles beating a rut into a buried, broken drain pipe. On a previous occasion the driver of the hose wagon had noticed a hole at this point that needed repair. Plaintiff testified that he had never seen this place in the (Commission of Appeals of Texas, Section A. street, but he was himself the owner of a horse-drawn vehicle, was an adult, had frequently been to fires on this and other fire apparatus, and testified that the wagon sustained the jolt that caused his fall "like it had run over a big hole." In numerous instances he declared, both upon direct and cross-examination, that "the" hole in the street was the cause of the jolt. His testimony, it is true, could have been viewed below as a mere guess or surmise, but it also could have been considered as a substantial opinion. If based upon observation and experience, opinions involving occurrences and effects which are of a common nature, and the details of which are naturally and necessarily indefinable, may be given by a nonexpert, and may be viewed as of great or little weight, as the circumstances may justify. Freeman v. Grashal (Tex. Civ. App.) 145 S. W. 695. Taken in connection with the testimony of the driver and of the other witness, and read in the light of all the testimony, the opinion of Schlegel presented some evidence that the accident was caused by the hole at the corner of Navasota and Twelfth streets. Appeal and error 449-Appeal from order overruling plea of privilege does not suspend trial on merits. An appeal from an order overruling a plea of privilege does not suspend the trial of the case on its merits, under Vernon's Ann. Civ. St. Supp. 1918, art. 1903, authorizing an appeal from a judgment sustaining or overruling the plea of privilege, and providing that an appeal from a judgment sustaining a plea of privilege shall suspend the trial of the case on its merits. Error to Court of Civil Appeals of Sixth Supreme Judicial District. Suit by W. R. Martin against McKean & McNeal. Judgment for plaintiff was affirmed in part, and reversed and remanded in part, by the Court of Civil Appeals (241 S. W. 782; 243 S. W. 575), and plaintiff brings error. Judgment of Court of Civil Appeals reversed, in so far as it reverses the judgment of the district court, and judgment of district court affirmed. J. M. Burford, of Dallas, and F. B. Caudle, of Mt. Vernon, for plaintiff in error. E. B. Coopwood, of Lockhart, and Lloyd W. Davidson, of Sulphur Springs, for defendants in error. The consideration of whether the wagon could have attained enough momentum to have caused the accident described by plaintiff, within the few feet it had to travel between the stop and the defect, is attended by indefinite factors, involving the weight and shape of the vehicle, the size and strength of the team, the slope of the street, BISHOP, J. Plaintiff in error, W. R. Marthe shape of the hole, the outward force of tin, a resident of Franklin county, filed suit turning the corner, and many other consider- in the district court of said county against ations of like nature, and, in addition, the defendants in error, McKean & McNeal, resiphysical effect of a combination or concur- dents of Caldwell county, on breach of conrence of some or all of them. Upon these tract. Defendants in error filed their plea of there is no evidence; and there is no evi- privilege to be sued in the county of their dence that the accident would not have oc- residence, and controverting affidavit therecurred as plaintiff claimed it did. It can to having been filed, the court, on September not be confidently assumed that it was an 3, 1921, heard and overruled the plea of priv For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ilege. Defendants in error excepted, and gave notice of appeal. On September 9, 1921, the case was called for trial on its merits, and defendants in error failed to further answer. Upon trial, judgment was rendered in favor of plaintiff in error for the sum of $2,592.52. Thereafter during the term defendants in error filed their motion to set aside and vacate said judgment praying for a new trial, which motion was by the court overruled. They perfected their appeal, and the Court of Civil Appeals in its original opinion sustained the action of the trial court in overruling the plea of privilege, and affirmed the judgment. On motion for rehearing by defendants in error, the court adhered to its ruling on the plea of privilege, but reversed the judgment of the trial court on the merits of the case, holding that: "The effect of an appeal from an order overruling a plea of privilege prosecuted as provided by law is to suspend the power of the court to proceed further in the trial of the case until the issue as to venue has been finally determined, and to render void a judgment by default on the merits of the case taken by the plaintiff after notice of the appeal was given and before the appeal was disposed of." McKean & McNeal v. Martin (Tex. Civ. App.) 241 S. W. 782. The court overruled motion for rehearing by plaintiff in error, in an opinion in Id. (Tex. Civ. App.) 243 S. W. 575. This holding is in conflict with the holding of the Supreme Court in the case of Allen v. Woodward, 111 Tex. 457, 239 S. W. 602, 22 A. L. R. 1253. An appeal from an order overruling a plea of privilege does not suspend the trial of the case on its merits pending appeal under article 1903, Vernon's Ann. Civ. St. Supp. 1918. In the case of Smith Bros. Grain Co. v. Windsor & Stanley (Tex. Com. App.) 255 S. W. 158, we say: "When the plea is overruled, the trial court can at once proceed to trial on the merits. In event the case should be tried on its merits during the term of court at which the plea was overruled, the defendant can, by proper exception, have the ruling of the court considered on appeal from final judgment, without the necessity of perfecting a separate appeal from the order overruling his plea of privilege." We therefore recommend that the judgment of the Court of Civil Appeals be reversed, in so far as it reverses and remands the cause on its merits, and the judgment of the district court be affirmed. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. BAYER v. STATE. (No. 7770.) (Court of Criminal Appeals of Texas. Nov. 21, Where one accused of murder was convicted of manslaughter, a charge leaving the jury to determine whether, under the circumstances stated, he was guilty of murder or manslaughter, could not be complained of by him on the ground that it should have told the jury that under such circumstances he would be guilty of manslaughter only. 2. Criminal law 829(1)—Refusal of special charge covered not error. embracing matters covered in instructions given. It was not error to refuse a special charge 3. Homicide 120-Self-defense in second shot depended upon self-defense in first shot. The right of accused to follow deceased and shoot her the second time held to necessarily depend upon whether he was acting in selfdefense when firing the first shot. on threats, 4. Homicide 300 (3)-Charge followed by demonstration of intent as justifying killing, held not reversible. While Penal Code 1911, art. 1143, as to prior threats, justifies killing one who "by some act then done manifests an intention to execute the threat so made," and it is always better to follow the statutory language in charging thereon, yet a charge that accused would be justified in acting upon some "demonstration" or "movement" or some "statement" indicating that his adversary was about to execute a previous threat was not reversible error, in casting a more onerous burden on accused than required by law, as limiting to parbecause of threats. ticular acts of deceased the right to defend 5. Homicide 300 (2)-Charges on self-defense and threats need not be in one paragraph. It is not the law that charges on the law of self-defense and the law as to threats should be submitted together, that is, embraced in one paragraph; it being sufficient that both phases of the law be submitted if both are raised by the evidence. 6. Homicide 336-Incidents of trial held harmless where accused convicted of manslaughter. Where accused was convicted of manslaughter on a murder charge, the fact that the sheriff remarked to one of the jurors that a woman they passed on the street was the wife of accused, who had admitted on the stand that he was not living with his wife, and a remark by one of the jury that the Ku Klux Klan should have handled the case, held not prejudicial. 7. Criminal law 854 (9)—Jury held not separated by position of cot of one juror in hall. Code Cr. Proc. 1911, art. 745, as to separation of jury, held not violated by position of cot on which a juror slept, in or near door For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (257 S.W.) between hall and courtroom in which the other jurors slept. On Motion for Rehearing. 8. Criminal law 982-Application for suspended sentence raises issue of accused's reputation at time of trial. agraphs 18, 19, 20, and 21 of the charge, and at the refusal to give special charges. Some of the complaints appear to have no basis whatever, and if ground for them existed at the time the objections were filed, they must have been eliminated by amending the charge. Complaint is made that the court charge in leaving the jury to determine, uncommitted error in paragraph 21 of his der the circumstances stated, whether appellant was guilty of murder or manslaughter; it being insisted that the jury should have been told that under such circumstancAppeal from District Court, Falls County; es he would only be guilty of manslaughter. Prentice Oltorf, Judge. When an application for suspended sentence is filed, the question thereby raised as to accused's reputation as a law-abiding citizen relates to his reputation at the time of trial, and inquiry is not restricted to a time prior to the commission of the offense. If the verdict had been for murder, then this Peter Bayer was convicted of manslaugh- contention might properly demand our conter, and appeals. Affirmed. Frank Oltorf and Ben H. Rice, Jr., both of Marlin, for appellant. R. G. Storey, Asst. Atty. Gen., for the State. HAWKINS, J. Appellant was indicted for murder growing out of the killing of Sadie Peoples. Conviction for manslaughter resulted, with an assessed punishment of two years in the penitentiary. Deceased was killed by being shot with a pistol; the first of two shots inflicting only a slight flesh wound in the shoulder, the other causing death. Appellant is a white man, having come to this country from Silicia. Deceased was a negro woman. The first shot was fired at the entrance of the Vilna Fish Market in the city of Marlin; the second being fired while appellant was in the dining room of the Vilna Restaurant and deceased in the kitchen. The shooting took place about 9:30 o'clock in the morning. The evidence shows that for some considerable time appellant had been criminally intimate with deceased. The theory of the state, supported by evidence, was that the killing resulted from jealousy on appellant's part because deceased was trying to get him to cease his attentions to her and was bestowing her favors upon other parties. The defensive issues were raised by appellant's own evidence. He testified substantially that deceased had persuaded him to intrust her with the custody of $2,000 in cash with the argument that appellant was known to keep money on his person and was likely to be killed and robbed; and thereafter appellant demanded the return of the money and was seeking to secure it at the time of the killing. His evidence raised the issue of self-defense from apparent danger, as well as against the execution of previous threats, and also raised the issue of manslaughter. We omit any extended recital of the facts, but content ourselves by stating the issues raised thereby. [1] Bills of exception from 1 to 14, inclusive, present numerous complaints at par sideration; but the conviction being for manslaughter only, we think a discussion of it unnecessary, because, whether strictly correct or not, it could have resulted in no harm to accused. The cases cited by appellant will be found upon examination to be those where conviction was for murder. embracing the same matters covered in par[2, 3] Appellant requested a special charge agraph 20 of the instructions. We think the refusal of the special charge presents no error. The subject seems to have been fairly presented in the main charge. Neither do we think the criticism justified that paragraph 20 places the burden of proof on appellant or unduly limits his right of selfdefense, or that same can be regarded as a negative presentation of the matter; when considered in connection with paragraphs 18 and 19 immediately preceding, it is not subject to such construction. Appellant's right to follow deceased and shoot her the second time necessarily depended upon whether he was acting in self-defense when he fired the first shot. As supporting the criticism for embracing this proposition in paragraph 20 of the charge, we are cited to McMahon v. State, 46 Tex. Cr. R. 540, 81 S. W. 296; St. Clair v. State, 49 Tex. Cr. R. 479, 92 S. W. 1095; Coker v. State, 59 Tex. Cr. R. 241, 128 S. W. 137; Sargent v. State, 35 Tex. Cr. R. 325, 33 S. W. 364; Jones v. State, 44 Tex. Cr. R. 405, 71 S. W. 962; Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 433; Foster v. State, 67 Tex. Cr. R. 5, 148 S. W. 583. As we read the opinions, they do not sustain the complaint. On the contrary, the St. Clair and Foster Cases, supra, are direct authority upholding the correctness of the charge as given. [4] The nineteenth paragraph of the charge is assailed as casting a more onerous burden on accused then required by the law as limiting to particular acts of deceased the right to defend on the ground of threats. The contention is made that as article 1143, Penal Code, justifies one in killing an adversary who has previously made threats against his life, and who at the time of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes killing "by some act then done manifested | could not be limited to his reputation prior an intention to execute the threat so made," to the time of the commission of the ofthe court was in error in directing the jury that appellant would be justified in acting upon some "demonstration" or "movement" or some "statement" on the part of deceased from which it appeared to appellant from his standpoint at the time that deceased was about to execute the threat. We think it always better in charging upon this subject to follow the language of the statute. However, there does not exist in the charge complained of the vices pointed out in Miles v. State, 18 Tex. App. 156; Bonner v. State, 29 Tex. App. 223, 15 S. W. 821; Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 338; Graves v. State, 58 Tex. Cr. R. 42, 124 S. W. 676: Clark v. State, 51 Tex. Cr. R. 519, 102 S. W. 1136; Burnam v. State, 61 Tex. Cr. R. 51, 133 S. W. 1045. The charge in the present case does not restrict appellant's right to act upon some particular demonstration, movement, or statement, but justifies him in acting upon any kind of demonstration, movement, or statement from which it appeared to appellant, viewed from his standpoint at the time, that 'deceased was about to execute the threat. The language chosen by the learned trial judge appears broad enough to embrace any act verbal or otherwise on deceased's part. It covered every phase of the evidence raising the issue of defense against the execution of threats, and we think a reversal would not be demanded because other words were used than those embraced in the statute. We have been unable to discover how any injury could have resulted to accused, or that any restriction or limitation of his rights resulted from the charge as given. fense. As it related to his application for suspended sentence, his character at the time of trial was under investigation. An expression contrary to this proposition may be found in Caruth's Case, 77 Tex. Cr. R. 150, 177 S. W. 973; but this does not seem to have been followed. The opinion in that case was rendered in 1915. In 1918, in Williams v. State, 83 Tex. Cr. R. 26, 201 S. W. 188, the same court announced positively that, where suspended sentence was sought. the character of accused at the time of trial was the point at issue. This holding was followed in Mason v. State, 90 Tex. Cr. R. 560, 236 S. W. 93. The question is analogous to the investigation of the reputation of a witness for truth and veracity. The matter there pertinent is what is his reputation now, at the time he testifies, because it is now the jury must determine what weight to give his testimony. This point was discussed at some length in Cassel v. State (Tex. Cr. App.) 249 S. W. 1079. So in the matter of suspended sentence, the jury must determine whether at the time of trial accused's character warrants such recommendation. If one accused of crime puts his character in issue in the absence of an application for suspended sentence, then the rule invoked by appellant would apply, and the inquiry should be restricted to a time prior to the commission of the offense for which he is on trial. Several witnesses testified that appellant's general reputation as a peaceable, law-abiding citizen was good. It was the contention of the state that these witnesses based their evidence upon business dealings with appellant and that he did not associate with witnesses or with people with whom they associated. They were ask [5] The complaint that the charges on the law of self-defense and the law as to threats should have been submitted together is with-ed upon cross-examination by the state if out merit. As we understand the criticism, it is that the two subjects should have been embraced in one paragraph. The authorities cited in support of the proposition do not so hold. They are authority for the proposition that when the evidence raises the issue of self-defense from apparent danger, and also because of previous threats, both phases of the law should be submitted. This was done in the present instance. Appellant filed an application asking that in the event he was convicted of manslaughter he should be granted a suspended sentence. He placed witnesses upon the stand and proved by them his general reputation as a peaceable law-abiding citizen prior to the date of the killing. Upon cross-examination these witnesses were asked by the state if they knew the general reputation of appellant at the time of trial. Over objection they answered that it was bad. When the application for suspended sentence was filed, appellant by that act put in issue his character, and inquiry on the part of the state they knew what appellant's reputation was in that part of the city where he lived, and further if it was a fact that appellant did not associate with white people in the town. Objection was sustained to some of these questions, and to others the witnesses answered that they did not know what the reputation of appellant was in that part of the city where he resided. We have been unable to discover any error committed by the court in his ruling upon the matter complained of, nor that the questions to which objection was sustained were so obviously harmful as demands a reversal. Where a witness is tendered to support the good repputation of an accused or a witness, the opposing party has a right upon cross-examination to extend their investigation to the sources of information of the supporting witness. If it could be shown that the witness knew the reputation of the party inquired about was bad among the people in the immediate community where he resided, it would be pertinent for the jury to know |