ed. FLY, C. J. This is a suit by M. C. Reek, I ments of error, they must depend for their surviving wife of Christian Reek, Sr., deceas- vitality and effectiveness on the existence of ed, and Christian Reek, Jr., Kate Reek Feille, certain facts which have not been made Edward Reek, and Mary Reek, surviving known to this court through the medium of a children of said Christian Reek, Sr., deceas- statement of facts prepared and filed in the ed, to recover damages for the negligent kill- lower court in the manner and within the ing of said Christian Reek, Sr., by appellant. time provided by law. The purported stateThe cause was tried by jury and resulted in ment of facts filed in this court in this suit findings, in answer to special issues, that fails to show that it was ever filed in the Mary C. Reek should recover $12,000, Ed- lower court at any time, while the law reward Reek $5,000, Mary Reek $3,000, Kate quires that it be filed at some period within Reek Feille $1,000, and Christian Reek, Jr., 90 days from the date that the appeal was $100. Judgment was accordingly so render- perfected by filing an appeal bond. The appeal bond was filed on December 9, 1914; [1] The first and second assignments of er- the transcript of the proceedings was filed in ror assail the action of the court in overrul- this court on March 6, 1915, within the 90 ing exceptions to those paragraphs of the pe- days. On April 14, 1915, over 100 days after tition in which it was alleged that the plain- the appeal had been perfected, a purported tiffs did not know whether the deceased was statement of facts, which had never been engaged in intrastate or interstate commerce filed in the lower court, was filed in this at the time of his death, and it is contended court. There is a certificate by the stenograthat an attempt was made to recover under pher appended to the statement of facts federal and state statutes at the same time, which indubitably shows that the record was and that appellees should have been com- not completed until April 3, 1915, and consepelled to elect under which statute they quently if it had been filed by the district would proceed. The exceptions were prop- clerk at that time it could not be considered erly overruled. There was no effort to re- because not filed within the statutory time. cover under two statutes, but the pleadings The purported statement of facts will not be were intended to meet proof as to one class considered. Thomas v. Matthews, 51 Tex. of commerce or the other. If the evidence Civ. App. 304, 112 S. W. 120; Belt v. Cetti, showed that deceased was engaged in inter- 53 Tex. Civ. App. 102, 118 S. W. 241; Railstate commerce, then the federal statute way v. Waggoner, 102 Tex. 260, 115 S. W. would apply; but, if it showed that he was 1172. Courts of Civil Appeals will notice a engaged in intrastate commerce, then the failure to file the statement of facts in time state statute would apply. It would have although the question is not raised by the been a remarkable fact if the evidence had appellee. McKenzie v. Beason, 140 S. W. 246; shown that deceased was engaged in both Connally v. Saunders, 142 S. W. 975; Hines classes of commerce at one and the same v. Sparks, 146 S. W. 289; Hayes v. Groestime. The assignments are overruled. Cerbeck, 146 S. W. 327. tainly appellant was in no wise injured by [5] There is no merit in the twelfth asthe action of the court in regard to the ex-signment. If could not have injured appelceptions. There are propositions under the lant to inform the jury that it had requested second assignment of error that have no pos- the cause to be submitted on special issues. sible connection with it and are not germane thereto; for instance, the seventh proposition, which seeks to show that the pleading was in violation of section 1 of the fourteenth amendment to the Constitution of the United States. [2] The third assignment of error is overruled. The charge asked by appellant was clearly erroneous, in that it would have taken the question of negligence from the jury. The evidence raised a question of fact to be determined by a jury as to whether the contributory negligence of deceased caused his death, and it would have been error for the court, under the circumstances of this case, to have charged the jury that his failure to do, or not do, certain things, was negligence. The cause was submitted on special issues, and, if the charge had embodied the law, it should not have been given because it called for a general verdict. Railway v. Jones, 175 S. W. 488, and authorities therein cited. [3, 4] In connection with the third assignment, as well as the fourth, fifth, seventh, eighth, ninth, tenth, and eleventh assign The thirteenth assignment of error is overruled. The error complained of has no foundation in law or in fact. The fourteenth assignment is overruled. No error is presented requiring a reversal, and the judgment is affirmed. On Motion for Rehearing. [6, 7] The affidavits appended to the motion for rehearing clearly show that counsel for appellant labored under great difficulties in getting a statement of facts prepared, and the showing made would fully exonerate counsel from any neglect in not filing the statement of facts within the 90 days if it had been filed at any time in the trial court. There was a failure to do but one necessary thing, and that was the filing in the lower court. Had that been done, upon the showing made in the motion for rehearing, the statement of facts would have been considered by this court. No power has been given the clerk of this court, or to any justice of the court, to refuse to permit the filing of a statement of facts which was not properly, O. M. Lipper were made parties defendant, prepared in the lower court, and the filing in as asserting an interest in the mortgaged authis court does not preclude the court from tomobile. The J. I. Case Threshing Machine a refusal to consider such statement, nor Company intervened, asserting a prior lien estop it from exercising the duty of reject- on the automobile. The intervener having ing a paper purporting to be a statement of sequestered the automobile, judgment was facts, but which is not such statement be- rendered in favor of Lipper against the incause not filed in the lower court. If the tervener, but was silent as to the issues bestatement of facts, so called, was properly tween Jarrell and Gorman, and as to lien filed in this court, that does not relieve ap- rights between Jarrell and Lipper. Interpellant of the effects of a failure to file in vener appealed from such judgment. Appeal the lower court. That filing is essential to dismissed. the vitality and validity of a statement of facts, and the filing in this court could not give life to a document that had never been brought into legal existence. It is not the duty of this court, or any member thereof, nor of the clerk, to investigate a statement of facts and pass on its validity before it is filed; but that duty devolves on the court when the matter is called to its attention in a motion to strike out such statement, or in the investigation of the case. [8] No excuse is given for a failure to file in the trial court, and the fact that counsel for appellee may have agreed that the statement of facts might be filed out of time did not relieve appellant of the duty and necessity of filing the statement in the trial court. The agreement may have put the statement of facts in the same position that it occupied before the time expired; that is, prepared it so that it could be filed in the lower court. The agreement could not dispense with the filing, and did not attempt so to do. It is to be regretted that the agent to whom counsel confided the duty of filing the statement of facts did not file the same, and that he offers no excuse for such failure. It is not claimed, nor attempted to be shown, that the agent ever presented the statement of facts to the district clerk. The motion for rehearing is overruled. J. I. CASE THRESHING MACH. CO. v. A. B. Wilson and Cole & Cole, all of Houston, for appellant. Lawrence Sochat, of Houston, for appellee. WALTHALL, J. [1] This suit was originally filed by J. S. Jarrell against James J. Gorman on a promissory note for $2,000, asserting a chattel mortgage lien upon certain automobiles, among which was the one involved in this controversy. J. L. House, Thornton Hamilton, and appellee, O. M. Lipper, were made parties defendant, as asserting some claim to certain of the automobiles upon which plaintiff Jarrell claimed the lien. Appellant, the J. I. Case Threshing Machine Company, a corporation, intervened in the suit, asserting a prior lien upon one of the automobiles by reason of the execution and delivery by defendant Gorman of a certain chattel mortgage to intervenor to secure the payment of the purchase price of said automobile. Appellee, Lipper, was in possession of the automobile at the time the intervention was filed, claiming to be the owner thereof by reason of his having purchased it from defendant Gorman, paying a valuable consideration therefor. The automobile in question was sequestered by intervener, and on the trial before the court without a jury judgment was rendered in favor of appellee, Lipper, and against appellant intervener, for $850, as the value of the automobile sequestered. Pursuant to a written agreement, defendants Hamilton, House, "and the inter (Court of Civil Appeals of Texas. El Paso. vener John Walker" were "dismissed out of Oct. 28, 1915.) APPEAL AND ERROR_79-DECISIONS RE- Where, in an action upon a note asserting Appeal from District Court, Harris County; N. G. Kittrell, Special Judge. Suit by J. S. Jarrell against James J. Gorman on a promissory note and chattel mortgage. J. L. House, Thornton Hamilton, and this cause, and go hence without day; all costs as to said defendants and intervener to be adjudged against Walker, intervener." The appeal was taken by appellant from the judgment rendered against it in favor of appellee, Lipper, for the value of the one car in controversy between appellant and appellee. The judgment rendered in the case is as follows: "Be it remembered that on this, the 16th day of October, came on to be heard the above-entitled cause, upon the intervention of the J. I. Case Threshing Machine Company, as between them and the defendant O. M. Lipper; and both parties appearing by counsel, and the court, having heard the witnesses and argument, and having examined the authorities submitted, is of the opinion that the law is with the defendant Lipper; wherefore it is ordered, adjudged, and decreed that the defendant Lipper do have and re [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. 822.1 cover of the J. I. Case Threshing Machine Com- I read as a whole, was clear in meaning, and could pany the sum of $850, with interest at 6 per not have misled the jury. cent. from the 14th day of November, 1913, as the value of the car taken by them on the sequestration, and together with all costs in this behalf incurred, for all of which let execution issue against the said J. I. Case Threshing Machine Company and the sureties on both the sequestration bonds and the replevy bond, jointly and severally to which judgment, the said J. I. Case Threshing Machine Company excepted and gave notice of appeal." Neither the judgment nor the record in this court show what order or disposition, if any, was made in the trial court of the plaintiff Jarrell or the defendant Gorman, or of the issues as between them, nor of the asserted mortgage lien as between Jarrell and Lipper. Jarrell sued to recover judgment against Gorman on a promissory note, and asserted a mortgage lien on other property than the one car claimed by the appellant. The judgment does not dispose of either the parties or the issues between Jarrell and Gorman, and between Jarrell and Lipper, and is not a final judgment. For the reasons stated, this court is without jurisdiction, and the appeal is dismissed. DAVIS v. STATE. (No. 3730.) Appeal from Henderson County Court; C. D. Owen, Judge. Sing Davis was convicted of unlawfully carrying a pistol, and he appeals. Affirmed. Miller & Miller, of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 60 days' imprisonment in the county jail. [1] The first contention of appellant is that the evidence will not sustain a conviction. John Hill, John Ross, and Lillie Ross all testify that John Ross was working with an unbroken horse when appellant came walking along; that he stopped and began to assist Ross with the horse, and while doing so a pistol fell out of his pocket; that John Hill picked up the pistol and offered it to appellant, when appellant asked him to take care of it for him, as he (appellant) would go with John Ross to Franklin. John Hill testified that he carried the pistol to (Court of Criminal Appeals of Texas. Oct. 20, his home, and appellant afterwards came to 1915.) 1. WEAPONS 17- UNLAWFULLY CARRYING PISTOL-EVIDENCE-SUFFICIENCY. Evidence in a prosecution for unlawfully carrying a pistol held sufficient to sustain a conviction. [Ed. Note.-For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. 17.] 2. CRIMINAL LAW 829-REQUESTED CHARGE -GIVING EFFECT. Where, in a prosecution for unlawfully carrying a pistol, the court gave a charge fairly presenting the issue, and in the language selected by accused, it was unnecessary to give other special charges requested by accused on the same issue. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. 829.] 3. WEAPONS 8 CARRYING PISTOL STRUCTION-REFUSAL. IN In a prosecution for unlawfully carrying a pistol it was not error to refuse to charge that, if the jury believed the pistol was broken and would not shoot, "or" that it was unloaded at the time when, etc., there should be an acquittal, since it is not the law that one carrying an unloaded pistol is guilty of no offense. [Ed. Note. For other cases, see Weapons, Cent. Dig. §7; Dec. Dig. 8.] 4. CRIMINAL LAW 1028 -MISDEMEANORCONVICTION-QUESTIONS CONSIDERED. Upon appeal from a conviction of a misdemeanor, the court can pass only upon such questions as are properly raised in the trial court. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. 1028.] his house and got it. This is certainly positive evidence that appellant had the pistol on that occasion; in fact, he so testifies himself, but says he had let his brother have the pistol to have it fixed; that his brother had neglected to do so, and, being over at his brother's that morning, he was carrying the pistol back to his home; that it was unloaded, was broken, and would not shoot. It would be a question whether or not the jury would believe his explanation of his possession on this occasion, and apparently they did not do so. The other witnesses present did not notice that the pistol was broken in any particular. [2] At appellant's request the court instructed the jury: "You are instructed that, if you believe from the evidence that the defendant, Sing Davis, was carrying a pistol from his brother's home to his own home at the time complained of, and that he was proceeding on his way home along a route a person would usually or ordinarily travel in going from the place or home of George Davis to defendant's home, you will acquit this defendant, and this although you may believe from the evidence that the defendant, while thus proceeding on his way home, stopped by at Ross' place to assist in the managing of the wild horse." This presented the issue fairly and in language selected by appellant; therefore it was unnecessary to give the other special charges on that issue requested by appel lant. [3] Appellant also requested the court to instruct the jury: "I charge you, as a part of the law in this case, that if you believe from the evidence that the pistol was broken and it would not shoot, or that it was unloaded at the time named, you will acquit the defendant." The court did not err in refusing to give this special charge, for it is not the law of this state that, if one carries an unloaded pistol, he is guilty of no offense. He could very easily have cartridges in another pocket, and in a moment's time could convert it into a loaded one. Had the appellant requested the court to instruct the jury that, if the pistol was broken, or so out of repair that it would not shoot and could not be fired, he should have done so. [4, 5] But this is a misdemeanor conviction, and we can only pass on such questions as are properly raised in the trial court. No exception was reserved to the court's charge, because he did not so instruct the jury in his main charge, although another exception to the charge was reserved, and that is that the charge as given was contradictory in its terms. This is not a correct construction of the charge, but, when read as a whole, its meaning is clear, and could not have misled the jury. If appellant's contention, as made by his testimony alone, had been believed, of course he would not be guilty under the law, but the jury did not believe his explanation of his possession of the pistol, or as to its condition, and we cannot say, at this distance, they ought to have done so. The judgment is affirmed. HUGHITT v. STATE. (No. 3722.) (Court of Criminal Appeals of Texas. Oct. 20, 1915.) FENCES 28-DESTRUCTION-PROSECUTION EVIDENCE-ADMISSIBILITY. Where, in a prosecution for unlawfully pulling down a fence, defendant offered to show that the prosecuting witness held possession only as agent for the real owner, and that the entry upon the land and destruction of the fence were done by accused under the authority of the real owner, such testimony was not inadmissible as an effort by accused to try the title to real estate, but was only a proper attempt to show that the entry and destruction of the fence were lawful. [Ed. Note. For other cases, see Fences, Cent. Dig. $$ 62-67; Dec. Dig. 28.] Appeal from Mills County Court; G. H. Dalton, Judge. Frank Hughitt was convicted of unlawfully pulling down a fence, and he appeals. Re versed. J. C. Darroch, of Goldthwaite, for appellant. F. P. Bowman, Co. Atty., of Goldthwaite, and C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of unlawfully pulling down a fence of D. H. Trent, and his punishment assessed at a fine of $10. This case is a little out of the ordinary. Of course, the title to real estate is never to be tried in this character of case, and the court did not err in so holding. But, as we view the record, the evidence appellant sought to introduce was not offered to prove that he held a superior title to Trent to the land, but only to show that he, in fact, was in possession of the land on which the fence was situate, and rightfully so. The prosecuting witness, D. H. Trent, testified that the fence belonged to him and had been in his possession since 1895-about 20 years; that the land fenced was a part of the W. W. Williams survey, and was called the McClesky land; that he had been in possession of the land since 1895. If Trent was claiming the land as his own, then, of course, the question of title could only be tried in the district court, and evidence on that issue would not be admissible. But what appellant sought to prove was that, while Trent was in possession of the land, his possession was that of agent of McClesky, and offered in evidence the following letter of Trent: "Yours very truly, "Goldthwaite, Texas, June 29th, 1914. "Mr. J. H. McClesky, Belton, Texas-My Dear Sir: I have yours of the 28th relative to the land at Williams ranch. I have had this land fenced and taking care of it for fifteen years, and the wood has been saved thereby. I don't find any deed on record in favor of your father, but he told me that the land belonged to him, and he gave me authority to fence the same. However, old Frank Hewitt has put a deed on record and claims the land, says that he bought the land from your father, but the place is in my possession and will be until you are able to dispose of it, and if I can help you shall only be glad to do so. The land is a cheap grade of land and won't bring much; don't believe it will bring more than $6.00 per acre, for it is just rough grazing land. There has not been any taxes paid on the place for years and years. I will keep and take care of the place and hold it until I am paid for my fence and something for taking care of it for the past fifteen years. Let me hear from you regarding the same. I am, D. H. Trent." Appellant offered to prove, further, that prior to the time this prosecution was begun he had gone into possession of the land by authority of Trent's principal, Mr. McClesky. If, in fact, Trent was holding the land as agent for McClesky, at will, certainly McClesky would have authority to authorize appellant to take possession of it. If Trent had been claiming the land as his own, no matter how defective his title, the owner of the superior title would not be entitled to show that fact in this character of case. But when Trent by his testimony does not claim to be owner of the land, on crossexamination appellant ought to have been permitted to show by him, if he could, that he did not claim the land as his own, but was merely in possession of same as agent for McClesky, and that his possession was, in fact, the possession of McClesky, and then to prove, if he could, he entered upon the land by authority from McClesky, in fact, the person in whom the real possession of the land had been all these years. The court erred in excluding the testimony which would tend to show these facts. If one is in possession of another's cow and had been in peaceable possession for two years, and one is alleged to have stolen the cow of A. (the person in possession) without his consent, and A. had so testified, certainly it would be permissible for one charged with the theft to show that, while A. was in possession of the cow, yet he was agent of B., the real owner of the cow, and if the person charged with the crime should offer to show that he had the consent of B. to take the cow, such testimony would be admissible, and if the jury should find that he had such consent, he would be guilty of no offense. If Trent had never claimed the land as his own, and did not do so at the time of this trial, but only claimed he was in possession of it as the agent of McClesky, and appellant had the permission and consent of and authority from McClesky to enter upon the land, and take possession thereof, he committed no offense in doing so. And if Trent placed a fence on the land, without McClesky's knowledge or consent, McClesky or those holding under him would have authority to remove it from off the land, and would be guilty of no offense in doing so. What is above said indicates the errors of the court in excluding testimony, and we do not think it necessary to discuss each bill of exceptions in detail. It will also indicate to the court the issues to be submitted in his charge. The judgment is reversed, and the cause remanded. WINTERMAN v. STATE. (No. 3648.) (Court of Criminal Appeals of Texas. Oct. 13, 1915. Rehearing Denied Nov. 3, 1915.) 1. INTOXICATING LIQUORS 236-OFFENSES -EVIDENCE-SUFFICIENCY. In a prosecution for selling intoxicating liquor without a license in a county where prohibition was not in force, evidence held to warrant conviction. ness and the sale of intoxicants at a place other than where the licensee is authorized. Rev. St. license to give the number of the premises where arts. 7435 and 7446, require an applicant for a the business is to be carried on and prohibit sales elsewhere. An information charged that on the 18th of April, 1915, in the county of T., accused, certain locality in said county where local opwithout having first obtained a license, did in a tion was not in force sell intoxicating liquor contrary to law. Code Cr. Proc. art. 453, declares that the information must be so certain as to enable accused to plead the judgment in bar of a second prosecution, while articles 460 and 464 declare that an information charging an offense in ordinary language so as to inform a person what is meant is sufficient, and that an information for selling intoxicants shall be sufficient if charging that accused sold intoxicating liquor contrary to any law of the state to named persons without stating the quantity. Held, that the information, which substantially followed the statute a violation of which was charged, was sufficient, while not averring the particular place in the county wherein accused made the sale, or that such place was a different one from the place where he was licensed to sell. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 271; Dec. Dig. 100.] Appeal from Tarrant County Court; Jesse M. Brown, Judge. Joe Winterman was convicted of selling in toxicating liquor without a license where local option was not in force, and he appeals. Affirmed. Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted of selling intoxicating liquor where prohibition was not in force without obtaining a license. [1] Phil Gibson testified that he had a barbecue stand near the corner of Thirteenth and Monroe streets, in the city of Ft. Worth, and had lived in Ft. Worth 20 years; that appellant lived with his son, Felix Winterman, just across the street from his barbecue stand. He further testified: "On Sunday, the 18th day of April, 1915, about 9 o'clock in the morning, Dolly Chainey, a negro woman, came to my barbecue stand and gave me 40 cents, and asked me to get her a half pint of whisky. I took the 40 cents and went across the street to Felix Winterman's [Ed. Note.-For other cases, see Intoxicating house, where the defendant, Joe Winterman, Liquors, Cent. Dig. §§ 300-322; Dec. Dig. was staying, and knocked on the door. The 236.] 2. INTOXICATING LIQUORS 150-OFFENSES Under Pen. Code, art. 611, declaring that no person shall, directly or indirectly, sell intoxicants without taking out a license, the of fense is selling intoxicants without a license, and not engaging in the business of selling with -SALES WITHOUT LICENSE. out a license. defendant came to the door, and I gave him the half pint of whisky. The defendant went back 40 cents, and told him that I wanted to get a into another room of the house and brought out a half pint of whisky and gave it to me, and I carried the whisky across the street to the barbecue stand and delivered it to Dolly Chainey. About 11 o'clock that same morning Dolly Chainey came back to the barbecue stand and another half pint of whisky. I went across the gave me 40 cents again and told me to get her [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 164, 165; Dec. Dig. street again to the house where the defendant 150.] 3. INDICTMENT AND INFORMATION 110 SALE OF LIQUOR-FOLLOWING STATUTE. Pen. Code, art. 611, makes it an offense to sell intoxicating liquors without a license, while article 614 prohibits the carrying on of the busi was staying and got another half pint of whisky from him and carried it across the street to the barbecue stand, where Dolly Chainey was, and delivered it to her. I bought a half pint of whisky from the defendant at his home on Sunday, April 4th, for 40 cents." |