صور الصفحة
PDF
النشر الإلكتروني

first assault. If appellant made the first assault or demonstration, he might be guilty of some degree of culpable homicide. He certainly would be if he lay in wait for his adversary, and made the first attack on him; but of this latter theory the evidence is exceedingly shadowy. For the errors discussed, the judgment is reversed, and the cause remanded.

BROOKS, J., absent.

STANFORD v. STATE.

(Court of Criminal Appeals of Texas. Dec. 12, 1900.)

INCEST APPEAL — STATEMENT OF FACTS FAILURE TO FILE-EXCUSE-BILL OF EXCEPTIONS SIGNATURE-FAILURE TO PROCURESICKNESS OF JUDGE INCRIMINATING TESTIMONY EXEMPTION FROM PROSECUTION AUTHORITY OF COURT - SURPRISE - GENERAL OBJECTION— SUFFICIENCY-INSTRUCTIONS.

1. Under a statute requiring a statement of facts to be filed within 10 days after the expiration of the term, unless the attorney should show that the delay was not due to his fault, an affidavit that the prosecuting attorney was busy before the grand jury in another county, but that he considered the statement at such times as he could find from his official duties, was not sufficient to excuse the failure to file the statement within the required time.

2. Where a bill of exceptions was presented to the trial judge within the time required by statute, but was not signed by him and filed within the required time because he was forbidden by his physician from reading the bill on account of sickness, the bill will be considered on appeal, since the failure of the court to sign the bill was not due to any negligence of appellant.

3. Where, on trial of defendant for incest with his stepdaughter, she refused to testify, because she would incriminate herself, and the state dismissed the case against her while she was on the witness stand, in order to secure her testimony, it was not error for the trial court to state to her that she would be exempt from prosecution if she would testify to the truth.

4. Where, on trial of defendant for incest with his stepdaughter, the case was dismissed against her while she was on the witness stand, in order to secure her testimony, the objection that such dismissal was improper in that it interfered with defendant's arrangements, without stating what such arrangements were, was too general to be considered on appeal.

5. Where, on trial of defendant for incest with his stepdaughter, the case was dismissed against her while she was on the witness stand, in order to secure her testimony, the fact that the court remarked to her that he would force her to testify if she refused to do so was harmless error, in the absence of proof that her testimony was injurious to defendant.

6. Where, on trial of defendant for incest with his stepdaughter, there was no evidence that her mother had a former husband, unless it be inferred from the fact that she had two children born before her marriage to defendant, it was not error to refuse to instruct the jury that defendant could not be convicted without proof of the death of such former husband, or that a divorce had been secured from him, since the evidence did not present any such issue.

Appeal from district court, Stephens county; N. R. Lindsey, Judge.

L. J. Stanford was convicted of incest, and he appeals. Affirmed.

W. P. Sebastian, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of incest. The statement of facts was filed July 3d, court having previously adjourned June 2d. The excuse for failing to file said statement within the 10 days allowed for that purpose is found in the affidavit made by the district attorney to the effect that the statement of facts was handed him some days after the adjournment of the term at which the conviction occurred; that district court was then in session in another county; that he was very busily engaged with the grand jury; and that at intervals he reviewed said statement of facts, and, being unable to agree, he made up and presented to the judge his version of the evidence. He states further that he is not quite sure as to the time appellant's counsel handed him the statement of facts, but believes it was before the expiration of the 10 days after adjournment of the term at which conviction occurred. There is no statement from appellant's counsel. In fact, this is the only showing made. There was no diligence. The statute authorizing the filing of statement of facts subsequent to adjournment of the term was reviewed in George v. State, 25 Tex. App. 229, 8 S. W. 25, and under the construction there placed upon the statute this showing is clearly insufficient. George's Case has been followed by this court in an unbroken line of decisions. The same construction has been placed upon this statute by our courts of civil appeal.

We are of opinion that the bills of exception should be considered. The affidavit of the trial judge discloses that within two days after the conviction, and during that term of court, appellant presented his bills of exception; that he (the judge) was so sick at the time that the physician interdicted his reading. This sickness continued until after the adjournment of the court. This arose from no want of care or caution on the part of appellant or his counsel, and by reason of the sickness it was placed beyond the power of the judge to act upon them sooner. The statute requires that bills of exception shall be presented to the district judge within 10 days after the trial, and before adjournment of the court; and it has been held that, unless this has been done, they will not be considered. Yet some of the decisions intimate there might be exceptions to this rule upon a proper showing. Where bills have been presented within the time required by statute, and are not filed by the judge, they have not been considered, for the reason that it was the duty of the party presenting the bills to follow them up, and see they are

approved and filed within proper time. Riojas v. State (Tex. Cr. App.) 36 S. W. 268, and authorities there cited. If the negligence in this case could be laid at the door of appellant or his counsel, the rule laid down in Riojas' Case would govern. In othe. words, if, when the bills were presented to the trial judge, he was not prevented by some uncontrollable circumstance from approving the bills, it would have been incumbent upon the attorneys or party presenting same to see they were either approved or refused,—if approved, filed; if refused, to follow the statutory provisions, which authorize the preparation of bills in another way. But here no amount of diligence would have procured the signature of the judge or the filing of the bills. It was beyond the power of the judge to conform to the law, and no amount of diligence on the part of appellant could have overcome this condition of things. We believe, therefore, that the bills should be considered; and further hold that it is not an infringement of the rule laid down in George v. State, 25 Tex. App. 229, 8 S. W. 25, and Riojas' Case, supra.

may have absolutely denied the incestuous intercourse. We do not believe the court had the authority to force her to testify. But, even in this attitude of the matter, it is not made to appear that she testified to any fact in any way injurious to appellant. The court stated he was of opinion that the stepdaughter, under the statute, could not be guilty of incest committed during the life of the mother. We understand the law to be that, while the mother is living the intercourse of her husband with the stepdaughter would be incestuous during the continuance of the marital relation, but after the death or divorce of the mother such intercourse would not be incest. Johnson v. State, 20 Tex. App. 609; Clanton v. Same, Id. 615.

Exception is taken to the charge of the court because it failed to instruct the jury that, if the mother of Viola Huckaby, wife defendant, had a former husband, before they could convict it must appear from the evidence that the former husband was dead, or a legal divorce had been obtained. The court qualifies this bill by stating that there was no proof of a former husband. No witness mentioned any such fact, and the record was silent on that point, unless inferred from the fact that before her marriage with defendant Mrs. Eliza Stanford's name was Eliza Huckaby, and that she had two children. As the matter is presented, it is not necessary to discuss it. There was no issue raised on this question. If the facts had shown she had a former living husband, and it was further an issue as to whether there had been a divorce granted, it would have been correct to charge this phase of the law. Of course, if her former husband was dead before the second marriage, there would have been no issue even on that phase of it. As the record is presented to us, there is no such error as requires a reversal, and the judgment is affirmed.

Bills Nos. 1 and 3 may be considered together. While the alleged incestuous paramour, Viola Huckaby, was on the witness stand, the state was permitted to dismiss her case in order to secure her testimony. The court stated to her that, if she would testify, her case would be dismissed, and she would not be prosecuted. These matters were objected to, because the court had no assurance of living always, and it was be yond his province to make such promises. The court had the authority to make the statement; and it was immaterial whether he lived or not; if she accepted the terms and testified truthfully it exempted her from prosecution, under the decisions of this court. Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682. Another ground of objection was that this action of the court interfered with the "arrangements" of counsel defending appellant and Huckaby. What those arrangements were is not stated. If this action of the district attorney and court operated as a surprise to appellant's counsel, and was inju- (Court of Criminal Appeals of Texas. Dec. 19,

rious to appellant, it should have been stated for the information of this as well as the trial court, and postponement asked in order to fortify against such disadvantages. It is also stated that the court informed the witness if she did not testify he would force her to do so. The court qualifies this bill by stating: "When the witness refused to testify on the ground that it would criminate her, she was asked if she would answer the questions if she was granted immunity from prosecution, and she stated she would." It may be inferred, on account of these matters, that the witness did testify, though the bills do not so state. Nor do the bills show what her testimony was. She may have testified favorably to defendant and against the state. In fact, so far as these bills disclose, she

HENDERSON v. STATE.

1900.)

CRIMINAL LAW-BILL OF EXCEPTIONS-FAILURE TO FILE-DUE DILIGENCE. Defendant's attorney filed an affidavit that a bill of exceptions was presented to the district judge two days before adjournment of the term, and that on the last day of the term defendant's attorney applied to the court for the bill, and the court stated that he would examine and file it. The bill was not filed until 15 days after the adjournment of court. Held, that the affidavit was not sufficient to show such diligence on the part of defendant as would excuse his failure to comply with a statute requiring a bill to be filed within the term, and the bill would not be considered on appeal.

Appeal from district court, Harris county; A. C. Allen, Judge.

Lonnie Henderson was convicted of robbery, and he appeals. Affirmed.

Marks & Van Velzer, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of robbery, and his punishment assessed at five years' confinement in the penitentiary. Appellant prepared and handed to the judge, two days before the court adjourned, his bills of exception. On the day court adjourned appellant's counsel applied to the court for said bills, and received the statement that he was not through with them, but that he would examine and file them. As shown by the affidavit of appellant's counsel, the court did not do this until 15 days after the adjournment of the court. We have held this is not sufficient diligence on the part of appellant, but he must apply and get from the court a refusal to file the bill of exceptions within the term, and that, if it is no fault of his that the bills are not filed, then we will consider the bills, or reverse on account of the absence of the bills, because of the negligence of the trial court. For a full discussion of this matter, see Stanford v. State (decided at present term) 60 S. W. 253. Without appellant's bills of exception, there is no ground of complaint. The indictment is in proper form, and the charge of the court is correct. The statement of facts amply supports the verdict. The judgment is affirmed.

ADAMS v. STATE.

(Court of Criminal Appeals of Texas. Dec. 12, 1900.)

CRIMINAL LAW -BILL OF EXCEPTIONS STATEMENT OF FACTS-FILING-DILIGENCE -CONTINUANCE-INSTRUCTIONS APPEALABSENCE OF BILL OF EXCEPTIONS-EFFECT. 1. Where defendant's trial was finished June 25th, and his motion for a new trial denied June 30th, which was the last day of the term, and no bills of exception were prepared and presented to the judge within the term as required by statute, nor any effort made to prepare such bills until after the adjournment of court, a bill of exceptions filed after adjournment will not be considered on appeal, because of defendant's failure to exercise due diligence.

2. Defendant's trial was finished on June 25th, and the court adjourned on June 30th, and the next day after adjournment the judge left the city on an election tour, and did not return until after the expiration of the statutory period for filing a statement of facts, and the county clerk refused to allow counsel for defendant to take the papers in the case without an order from the judge. Defendant's counsel called at the judge's office and at his residence, and, finding him absent, made no further effort to secure a statement of facts. Held, that a statement of facts not filed within 10 days after adjournment of court, as required by statute, will not be considered.

3. In the absence of a bill of exceptions, errors in overruling an application for a continuance, and in the admission of testimony, and in refusing to give requested instructions cannot be considered on appeal, since the correction of such errors requires an examination of the testimony.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Frank E. Adams was convicted of embezzlement, and he appeals. Affirmed.

Leo Tarleton and Nat. B. Jones, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of embezzlement, and given two years in the penitentiary. The statement of facts and bills of exception were filed subsequent to the adjournment of the court. The, excuse for want of diligence is substantially as follows: The case was finished on June 25th. Motion for new trial was disposed of on June 30th, a few hours before the adjournment. Bills of exception were not prepared and presented to the judge during the term, nor for quite a length of time after its adjournment. The judge was a candidate for county judge of Bexar county, and the day following adJournment went out upon an electioneering tour. No further effort was made to reach him, and the facts indicate counsel waited his return to the city before presenting the bills for approval. The district attorney, a day or two subsequent to the adjournment, left the state for Kansas City, Mo., and did not return until the expiration of the 10 days allowed for filing the statement of facts. It is further stated that the bills of exception and statement of facts could not well be prepared without the papers, and the clerk refused to permit counsel to have them without an order from the judge. A stenographer was employed to take down the proceedings. During a portion of the 10 days the stenographer was absent from the city. This is not a sufficient showing as to diligence in regard to either the bills or statement of facts. The statute requires that bills of exceptions must be prepared and presented to the trial judge within 10 days of the trial, and during the term. It is placed beyond question by the affidavit of appellant's counsel that the bills were not prepared, nor attempted to be prepared, during the term. If an order was necessary to obtain the papers, this could have been secured from the judge before adjournment of court, or at any time before he left the city on his electioneering trip; and, if it was necessary in preparing these bills, the order should have been obtained, and the bills prepared and presented before adjournment. It is conceded by appellant's counsel that no step was taken in the preparation of the bills of exception until after the adjournment. We have held in the recent case of Stanford v. State, 60 S. W. 253, that, where bills have been prepared and presented during term time, and within the time specified by law, and the judge, by reason of sickness, was unable to read and approve the bills, this would be a reasonable excuse for failure to file the bills within legal time. But this rule does not obtain here. The failure to secure the bills must not lie at the door of the party seeking to obtain such bills. He must shift

the responsibility to a point beyond his power to have the bills prepared and filed. This was not done.

With reference to the statement of facts, it is evident from the statement of the trial judge and appellant's counsel that the order could have been obtained from the trial judge to the clerk to turn over the papers to appellant's counsel for the preparation of a statement of facts before the judge left the city of San Antonio on his electioneering trip through Bexar county, or it could have been prepared in the clerk's office. It is further evident he could have been reached any day during said 10 days, and the order obtained. This was not done, but the parties rested, waiting the return of the judge to San Antonio. The diligence, under our statute, with reference to filing statement of facts, is upon the party seeking to file such statement, and must show there is no negligence or laches on his part. It was appellant's business to know where the trial judge was, and his movements, if the filing of the statement of facts was deperdent upon that fact; and immediately upon ascertaining his absence from the city it was his business to locate, and reach the judge promptly, in order to have his statement properly filed. There is no question but, with slight diligence and effort on the part of appellant, the district judge could have been easily reached in ample time. No effort was made by appellant to secure his statement of facts until after the expiration of the 10 days, except the bare fact that he called at the judge's room in the court house, and at his private residence, and found him absent. This was not diligence. Yungman v. State, 35 Tex. Cr. R. 80, 31 S. W. 663; Bonner v. Same, 38 Tex. Cr. R. 599, 44 S. W. 172; George v. Same, 25 Tex. App. 229, 8 S. W. 25; Turner v. Same, 22 Tex. App. 42, 2 S. W. 619; Bigham v. Same, 36 Tex. Cr. R. 453, 37 S. W. 753; Bryant v. Same, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; White's Ann. Code Cr. Proc. § 1163, subds. 1, 2 (see sections 1164-1164b, for collation of authorities). The statement of facts and bills of exception will not, therefore, be considered.

The action of the court overruling application for continuance in the absence of bill of exceptions cannot be considered. The indictment, in our opinion, is sufficient to charge the offense of embezzlement. It is in the usual form, and, so far as we are able to ascertain, fully charges the elements of the offense. Several of the grounds of the motion for new trial allege error in the admission of testimony. These cannot be considered in the absence of bill of exceptions. The evidence is not before us, and without it we are unable to say the charge is incorrect. In fact, it seems to be a clear statement of the law, or what might be the law, applicable to a state of facts provable under the indictment. In the absence of the evidence, the refusal of the requested instrucions of appellant cannot be held error.

We

will presume, in the absence of the evidence, that the jury were warranted in their verdict. As the record is presented to us, the Judgment must be affirmed, and it is so ordered.

LETCHER v. REESE et al.

(Court of Civil Appeals of Texas. Dec. 15, 1900.)

EXCHANGE OF PROPERTY-FRAUDULENT REPRESENTATIONS-UNLIQUIDATED DAMAGESVENDOR'S LIEN-LIS PENDENS-PLEADINGS. 1. In the exchange of lands under warranty of title, one party has no vendor's lien on the land conveyed by him to satisfy a judgment based on unliquidated damages growing out of fraudulent representations concerning the lands conveyed to him.

2. To ascertain whether an action was notice as to one purchasing land pending the action, it is proper to introduce the pleadings as they stood at the time of the purchase, since the purchaser is only held to notice of the issues as they existed at that time, and not of issues which might have been raised subsequently.

Appeal from district court, Jones county; N. R. Lindsey, Judge.

Action by J. D. Letcher against A. A. Reese and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Harry Tom King and C. M. Christenberry, for appellant. Word & Charlton, T. L. Stanfield. C. H. Steele, and A. H. Kirby, for appellees.

HUNTER, J. This suit was brought by appellant Letcher against the appellees, A. A. Reese, J. W. Reese, and H. O. Hale, to recover $2,000 on the covenants of general warranty contained in the respective deeds of conveyance made by the two Reeses to Hale, and by Hale to Scarborough, for lots 3 and 4, in block 48, in the town of Anson, Jones county, Tex., it being alleged that Letcher bought all of Scarborough's title and interest in the lots at execution sale, whereat he paid $500 for them; and, further, that the title had failed, in that he had been ejected from lot No. 3, and that he had to buy in the outstanding title to lot 4, which neither the Reeses nor Hale ever had. He was ejected, it was alleged, under a judgment rendered the 9th day of August, 1895, in the district court of Jones county, in favor of J. M. Witt against C. D. L. Newsome, the suit having been filed July 21, 1891, in which suit said Witt alleged in his original petition that he had been damaged in the sum of about $1,600 by the false and fraudulent oral representations of the said Newsome in the sale of a certain tract of land lying in Jones county, in that Newsome had pointed out to him the west and south lines of said tract, and that they did not run as thus pointed out, whereby he failed to get on the west side of the tract a strip of fine laud 85 yards wide, worth $500, which Newsome represented was included in the tract, and on the south the true

line extended over some rocky, broken, and worthless lands, whereby he was damaged $561, when Newsome had represented that the line did not extend to said bad lands. It was alleged that Newsome conveyed the land to Witt, with covenants of general warranty, and that the consideration paid by Witt was $5,700, and that $2,000 of it was paid by Witt's conveyance, under covenants of general warranty, of the two lots named. It was further alleged that Newsome was insolvent, and unable to respond in damages, should judgment be obtained against him, and prayer was made that Witt have a lien declared and enforced on the two lots for whatever judgment he might obtain. The record shows that on the 23d day of February, 1892, Witt filed an amended petition, but it fails to indicate what allegations it contained, or the purpose of the amendment. Judgment was rendered, as before stated, on the 9th day of August, 1895, in favor of Witt for $1,600, with foreclosure of a vendor's lien on the lots named, and lot No. 3 was sold under order of sale issued thereon, sale made, and on the 9th day of November, 1895, Letcher was ejected of possession of lot No. 3 under said order of sale. Before the filing of the aforesaid amended petition of Witt, viz. on the 12th day of February, 1892, Newsome sold and conveyed, with covenants of general warranty, the two lots to the Reeses for an expressed consideration of $2,000, and from this the title went to Hale, and from Hale to Scarborough, and from Scarborough to Letcher, by constable's deed, as before stated. In this case Letcher insists on his right to recover from the remote warrantors named the full amount of $2,000, notwithstanding he only paid $500 for the lots. His suit is based also upon the theory that the Reeses bought from Newsome with notice of the pendency of the suit to foreclose a vendor's lien on the lots, and consequently they, and all holding under them, down to and including himself, are bound by the judgment under which he was ejected. The case was tried by the court without a jury, and judgment was rendered for the defendants below, and Letcher has appealed on a statement of facts made out and certified to by the district judge. The facts are as stated above, except that there was no evidence as to what Letcher paid for the lots at the constable's sale, except the recitals in his deed; nor was it proved what amount the Reeses paid Newsome for the lots, nor what Hale paid the Reeses, nor what Scarborough paid Hale, except by the recitals in the deeds executed by them, respectively, which showed in each case $2,000.

The main question in this case is whether, at the date of Newsome's sale of the lots to the Reeses, the pendency of Witt's suit against Newsome for damages resulting from the false representations stated would be no60 S.W.-17

tice to the Reeses of the vendor's lien afterwards decreed and foreclosed in that suit. It has been held in this state that in the exchange of lands under general warranties of title, if the title to one tract or any part of it fails, the grantee may sue the grantor on his covenant of warranty, and that he has a lien in the nature of a ventlor's lien on the land he conveyed to his grantor to satisfy his damages. It has also been held that, in cases of fraud entitling the grantee to a rescission of the sale or exchange, equity will, in addition to restoring him to the possession of his lands, give him a lien on the land he received to cover any cash payments made or damages sustained. But we have been unable to find any case, and the learned counsel for appellant have cited none, where any court has ever declared a vendor's lien to exist upon the land received by the grantor to satisfy a judgment based upon a claim for unliquidated damages growing out of false and fraudulent representations concerning the lands conveyed to the grantee, and we believe it would be against public policy to ingraft such a principle upon the jurisprudence of this country. We therefore conclude that the claim set up in the petition of Witt for a lien on the lots to secure him in the payment of whatever damages he might recover in that case was without law or equity to sustain it, and the parties purchasing from Newsome were justified in so treating it; that such a claim, in an action for unliquidated damages for false representations, was no notice whatever to the purchasers that any vendor's or other lien existed on the lots named, and would be foreclosed by the judgment in that suit.

It is contended by appellant that on this trial it was error to allow the appellees to introduce the original petition in Witt's suit against Newsome, which was the only pleading of Witt's in the suit at the time Newsome sold to the Reeses, and that only the judgment in that case could be looked to to determine what the issues in the case were. But we cannot agree with the learned counsel in this contention. Unless the suit as made by the pleadings on file at the time the Reeses bought was of such a nature as to authorize the court to declare and foreclose a lien on the lots, no amendment changing the nature of the case would affect a purchaser who took title before such amendment was filed. In this case the amendment which was filed, upon which a lien was declared and foreclosed, must necessarily have been an amendment setting up an entirely new cause of action, and in that case the lis pendens could only date from the filing of the new cause of action or suit. The decision of this question, we think, renders it unnecessary to pass upon the other assignments of error. The judgment is affirmed.

« السابقةمتابعة »