BROOKS v. STATE.

(Court of Criminal Appeals of Texas. Dec. 19, 1900.)

CRIMINAL LAW-FORMER TRIAL-SEVERANCE -HOMICIDE-POISONING-INDICTMENT — INSTRUCTIONS-VARIANCE-VERDICT.

1. Where three parties indicted for murder obtained a severance at a former trial, such severance was not res adjudicata, so as to prevent any defendant from obtaining a severance at any subsequent trial.

2. Defendant was indicted under Pen. Code, arts. 647, 649, which state that the killing of a person by mingling poison with drinks, etc., with intent to kill, shall be murder. The indictment charged defendant with murder, etc., by mingling poison with beer, well knowing and intending that deceased would drink said poisoned beer, etc. Held, that a charge to the jury that if they believed defendant unlawfully gave to the deceased and caused him to swallow a poison mentioned in the indictment, mixed with beer, etc., submitted a different case than that set out in the indictment, since it would have justified a conviction of murder without reference to the indictment or statutes, and hence was erroneous.

3. Under Pen. Code, art. 712, providing that, if the jury find a person guilty of murder, they shall also find by their verdict whether it is of the first or second degree, a verdict finding defendant guilty of poisoning, as charged in the indictment, is not sufficient, though the statute makes murder by poisoning murder of the first degree.

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

F. A. Brooks was convicted of murder, and he appeals. Reversed.

Marsene Johnson and Will G. Barber, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

Upon the former trial severance was had at the request of the parties, there being three indicted, and appellant placed upon trial, and the case dismissed as to co-defendant Maggie Rose. When the case was called for trial, resulting in this conviction, another motion was made for severance, supported by an affidavit to the effect that it was believed there was not sufficient testimony against co-defendant A. B. Brooks to justify his conviction, and that his testimony was wanted, in case of his acquittal, for appellant on his trial. The severance was refused on the ground that, having severed at the previous trial, it was res adjudicata, and another severance could not be had; that is, by once exercising their statutory right of severance, they were thenceforth, in all subsequent trials, bound by that severance. We do not understand this to be a proper construction of the statute. The severance is granted for the trial. Upon subsequent trials the parties would have the right to change the order of trial, if in their judgment they thought it was to their interest. If the doctrine of res adjudicata would apply in this

character of case, it would also in applications to change venue.

The court charged the jury: "If you believe from the evidence beyond a reasonable doubt that defendant F. A. Brooks, about the time and place stated in the indictment, and with a sedate and deliberate mind and formed design to kill the man mentioned in the indictment, did unlawfully give to said man, and cause him to swallow it, a poison mentioned in the indictment, mixed with beer, and that same was calculated and likely to produce death, and thereby kill deceased, then find defendant guilty of murder in the first degree, and assess his punishment at death or by confinement in the state penitentiary for life." This is objected to because it submits a different case than that set out in the indictment. The indictment charged appellant with the murder of an unknown man, by mingling and causing to be mingled certain poison called "laudanum," and certain poison called "morphine," and certain poison called "opium" with a certain drink, to wit, beer, with intent then and there to injure and kill and murder the aforementioned unknown human being; he and his codefendants well knowing that said party would drink and swallow said poisoned beer, and then and there intended that he should drink said poisoned beer, etc. Appellant was indicted under articles 647 and 649 of the Penal Code. The charge given would have justified a conviction without reference to these articles or the allegations contained in the indictment. Under the charge given, it was not necessary to his conviction that appellant should have mingled the poison with the beer. It was only necessary that he should have given deceased the poisoned drink. Had appellant given the poisoned beer, and the party died from it, he would have been guilty of murder, though he had not mingled the poison with the beer, under this instruction.

The verdict of the jury is attacked for insufficiency, in that it fails to specify the degree of murder. The verdict is in the following language: "We, the jury, find the defendant F. A. Brooks guilty as charged in the indictment, and assess his penalty at confinement in the state penitentiary for life." Article 712, Pen. Code, provides: "If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree." This article has invariably been held mandatory. though the statute makes murder by poisoning murder of the first degree. See, directly in point, Johnson v. State, 30 Tex. Cr. App. 419, 17 S. W. 1070, and, for collation of authorities, see White's Ann. Pen. Code, § 1262.

Two other sections of the charge are criticised,-one with reference to what acts are sufficient to constitute a conspiracy, and the second as to the acts and declarations of the co-defendant A. B. Brooks. Without entering into a discussion of these matters, upon an

BROOKS, J. Appellant was convicted of murder in the second degree, and his punishment assessed at 15 years' confinement in the penitentiary. The state introduced Bennett, the assistant jailer, as a witness. Appellant's counsel stated he understood what would be the testimony sought of this witness, and would object thereto; and asked the court to retire the jury, which was done. Appellant then asked the prosecuting attorney what he proposed to prove by witness. He declined to answer, remarking the witness was present on the stand, and defendant could find out what he knew. Thereupon defendant began to question witness as to what he was called to prove, and asked him if he was not called to prove an assault upon him by appellant on August 20, 1900, while appellant was in jail. Appellant's counsel asked the state's counsel if he simply wanted to prove by the witness the assault by appellant upon witness while in jail. To this question the state answered "Yes." Appellant objected to the whole of said testimony.' The court overruled the objection. The jury was then recalled, and the examination of the witness proceeded. The state not only showed by the witness such assault upon him, and effort of appellant to get out of the jail, but that said assault was made with a knife; and, before defendant could object to the voluntary answer of witness as to where he was cut by defendant in said assault, witness pulled up his sleeve on the right arm, and showed a cut across his right arm four or five inches above his wrist, and stated that the cut paralyzed the leader of his little finger; and also pulled open his shirt front and showed a cut or knife thrust on his breatbone or breast several inches below his throat, made by defendant. Appellant objected, because it was proof of an independent crime, because it prejudiced the jury against defendant in an illegal way, so

that thereafter they were trying appellant not only on the charge of murdering Jim Beck (deceased). but also for the assault to murder Bennett; that this testimony was brought out so quickly as to surprise defendant's attorney, so that they could not object at the time, etc. The learned judge appends the following qualification: "Bennett, without being questioned further by the state than if any assault was made on him in the jail by defendant trying to escape, of his own accord made the exhibitions of the cut on his wrist and the stabs on his breast as he was answering; and this was neither objected to nor excepted to at the time it happened, and the court considered there was no occasion to strike out the evidence, even if required, as the witness testified that he had always been kind to defendant, and conveyed him ice water, matches, and tobacco in jail, and that there existed not the slightest cause for an assault upon him of that character by defendant; and the court took the view that an assault of such violence, and without any other reason for it, was a strong circumstance tending to show attempt to escape; and no instruction to the jury to disregard any of the evidence was asked. The court further considered that the objection to the witness testifying at all was premature, and that objections should be made when a question was asked, as until then the court could not intelligently rule." As we understand this bill, appellant served notice upon the court and district attorney that he not only objected to proof of the assault in the jail on the jailer, but to any other testimony touching the matter that might be offered. We do not think it was necessary for appellant to repeat his objections. However, the bill shows he attempted to do so. We note the judge certifies the witness also testified that, although appellant had assaulted witness, "he had always been kind to him, conveyed him ice water, matches, and tobacco in jail, and there existed not the slightest cause for the assault upon him of that character by defendant." The court also states that an assault of such character as that made by appellant upon witness was a strong circumstance tending to show appellant attempted to escape. Flight is a criminative circumstance that can always be proven where a party is charged with crime; and we have held that, where a party attempts to break jail after his incarceration, such attempt can be proven.

Russell v. State, 38 Tex. Cr. R. 590, 44 S. W. 159. But we have never held that the circumstances of the attempted escape can be proven. We have repeatedly held that independent crimes cannot be introduced where there is no connection shown between the independent crime and the offense with which defendant is being tried, unless some system is shown,-such as in arson or burglary. In most instances independent crimes are never admissible, since

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they do not illustrate the act with which defendant is being tried; nor do they throw any light upon his intent and motive in the transaction. Clearly, then, it would not be admissible to prove that appellant assaulted the jailer, and then go further, and prove he inflicted very great injury upon the jailer, and then to prove, as an aggravation of the outrage, that the jailer had been kind and humane in the discharge of his duties. of this is clearly inadmissible. It was simply permissible to prove that appellant attempted to escape. This fact could be admitted in the trial of appellant for the murder of Jim Beck, deceased, as a circumstance to be considered by the jury in passing upon his criminality; but it was error to go further than this, and prove the circumstances, character, and extent of the assault, thereby prejudicing the rights of the defendant before the jury. It is true, as suggested by the learned judge, these would be circumstances indicating he was endeavoring to escape; but no circumstances were needed to demonstrate this, for the jailer positively testified defendant attempted to escape. This could be proved; only this, and nothing more. Believing the other errors assigned are not likely to arise on another trial, we will not review them. But, for the error discussed, the judgment is reversed, and the cause remanded.

WRAGE v. STATE.

(Court of Criminal Appeals of Texas. Dec. 19, 1900.)

ASSAULT WITH INTENT TO MURDER-CONTINUANCE NEW TESTIMONY - DILIGENCE

INDICTMENT-EVIDENCE-VARIANCE.

1. On appeal from a conviction the judgment would not be disturbed because of the refusal of defendant's application for a continuance for the purpose of securing evidence, where, the statement of facts not being before the appellate court, the materiality of the testimony was not made apparent, and defendant appeared to have been wanting in diligence.

2. Where, on appeal from a conviction of an assault with intent to murder, the bill of exceptions showed that the state was permitted to prove the name of the alleged injured party to be James Madison Porter, commonly known as Mattie Porter, while the indictment alleged the name to be M. Porter, the judgment would not be disturbed, the bill not being sufficiently definite to make it appear there was error in the court's action.

3. On a prosecution for an assault with intent to murder it was permissible to show that, shortly before the assault, defendant had taken one or two drinks of cherry bitters to prove hat he was under the influence of intoxicants at the time of the difficulty.

Appeal from district court, Howard county; W. R. Smith, Judge.

H. C. Wrage was convicted of an assault with intent to murder, and he appeals. Affirmed.

F. G. Thurmond, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of an assault to murder, and his punishment assessed at three years' confinement in the penitentiary. He moved to dismiss the case for want of jurisdiction in the county where the trial occurred; his theory being that the record is not sufficiently explicit in showing the return of the indictment into the district court of Glasscock county, from which it was transferred to Howard county. While the record is not as explicit as it might be, or even should have been, still, in our judgment, it is sufficient to show the return of the indictment in Glasscock county, and the change of venue thence to Howard county. The record on this appeal is practically in the same condition with reference to this matter as on the former appeal. See 54 S. W. 602. Appellant applied for continuance, and reserved his bill of exceptions to its refusal. The statement of facts is not before us, and the materiality of the testimony is not made apparent. Besides, diligence is wanting. This was the third application.

Another bill recites that the state was permitted to prove the name of the alleged injured party to be James Madison Porter, and that he was commonly known as Mattie Porter; the ground of objection being that the indictment alleges the name to be M. Porter. The bill is very indefinite, and does not make it appear there was error in this ruling.

Objection was also urged to the admission of evidence to the effect that a short time before the assault was made by appellant he had taken one or two drinks of cherry bitters. The grounds of objection are not stated. It was permissible to prove that appellant was under the influence of intoxicants at the time of the difficulty.

It is contended the evidence is not sufficient to support the verdict. In the absence of the facts, we must presume they were. The judgment is affirmed.

MISSOURI, K. & T. RY. CO. OF TEXAS v. CHENAULT.

(Court of Civil Appeals of Texas. Nov. 3, 1900.)

RAILROADS-RIGHT OF WAY-CONDEMNATION -RIGHT TO POSSESSION JUDGMENT - COLLATERAL ATTACK RAILROAD CROSSING CHARACTER DUTY TO CONSTRUCT - EXPENSE-LIABILITY-OPEN CROSSING - KILLING OF STOCK.

1. Prior to the passage of Acts 1899, p. 105, providing that a railroad might take a right of way by the making a deposit with the clerk of the court pending the final disposition of the condemnation proceedings, a railway company could not acquire its right of way by such deposit made before the condemnation litigation was finally terminated and the damages awarded paid.

2. Where a court rendered judgment vesting title to a right of way in a railroad on its making a deposit with the clerk of the court, for the owner's benefit, pending condemnation

proceedings, prior to the passage of Acts 1899, p. 105, providing that title should vest in a railroad on making such deposit, such judgment may be attacked in any proceeding where it is relied on, since the court was without jurisdiction to render it.

*

3. Rev. St. art. 4427, declaring that "all railway corporations * which have, or may hereafter fence their right of way, may be required to make openings or crossings through their fence and over their road bed along their right of way every one and one-half miles," providing that at least one opening shall be made in any fence dividing an inclosure, does not entitle the owner of an inclosure to an open crossing.

4. Plaintiff's land was condemned for a railroad right of way, and damages were awarded, including compensation for the expense of maintaining and constructing ways of necessity across the road within such inclosure, prior to the passage of Acts 1887, p. 39, requiring railroads to make crossings within inclosures of private individuals, and across their tracks. Held, that plaintiff could not retain such compensation, and shift the expense of constructing

a crossing to the railroad.

5. Where a railroad company is required by law to leave a crossing over its right of way open, or such crossing is left open at the request of the owner of the inclosure, or in accordance with a contract with such owner, such company will not be liable, under Rev. St. art. 4428, for the killing of such owner's stock, for failing to have the crossing fenced.

Appeal from district court, Dallas county; Richard Morgan, Judge.

Action by John J. Chenault against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in favor of plaintiff, defendant appeals. Reversed.

T. S. Miller and Alexander & Thompson, for appellant. Curtis Hancock and Thos. F. Nash, for appellee.

TEMPLETON, J. In 1886 Mrs. Martha Chenault and others (among them, the appellee, J. J. Chenault) owned a tract of land situated in Dallas county, containing about 200 acres. The Dallas & Greenville Railway Company desired to construct its line of road across the land, and, being unable to agree with the owners on the damages to be allowed, instituted condemnation proceedings. Commissioners were accordingly appointed, and, on a hearing, Mrs. Chenault and her coowners were awarded the sum of $1,600, from which award both parties appealed to the county court. Soon thereafter, to wit, on October 5, 1886, the company paid into the hands of the clerk of said court an amount equal to said award and all costs. On June 8, 1887, judgment was rendered in said court, based on a verdict of a jury, in favor of Mrs. Chenault and her associates for $71, the value of the land taken, and the further sum of $1,500 damages, and in favor of the company for the costs incurred by reason of the appeal; the other costs being taxed against it. The company executed a supersedeas bond, and appealed to the court of appeals, where the judgment was affirmed on May 30, 1890. The judgment was satisfied in part on June 21, 1890, and in full on September 3, 1890. The

sums paid on the judgment included legal interest from the date thereof. The appellee now owns the entire tract of land above mentioned, having bought the interest of the other owners; and the appellant is the legal successor of the Dallas & Greenville Railway Company, and is entitled to all the rights and subject to all the liabilities of the same. Pending the disposition of the condemnation proceedings,-presumably, in the latter part of 1886,-the company constructed its line of road across said lands; and it and its successor, the appellant, have since that time continuously operated the said line of road. The road, as constructed, cuts off about three acres of said land from the main body of the tract. The farm, the dwelling house, the barns, and all the other improvements are on the main tract. There are situated on the three acres several springs, on which the appellee is compelled to rely almost entirely for his water supply. In 1890 or 1891 all of appellee's land was embraced in one inclosure, and the appellant fenced its track lying within the inclosure. At the same time it constructed within the inclosure an open crossing, with cattle guards and wing fences, across its track, for the convenience of the | appellee in reaching the water with his stock. About March 4, 1896, the appellant, over the protest of the appellee, removed the cattle guards and wing fences, and substituted gates in lieu thereof. The appellee brought this sult for damages, actual and punitory, occasioned by the substitution of the gates for the open crossing. He recovered judgment for $500, actual damages, and $5,500, the accrued statutory penalties claimed by him. On appeal to this court it was held that he could not pursue both his claim for actual damages and for the statutory penalty, and that the penalties awarded in excess of $1,500 were not authorized under the pleadings and evidence. The actual damages and excessive penalties having been remitted, the judgment was affirmed. A writ of error was granted by the supreme court, and it was held by that court that article 4433, Rev. St., permitting the recovery of penalties for the failure of railway companies to put in crossings, did not apply to crossings within inclosures, and the judgment was reversed and the cause remanded for another trial. Railway Co. v. Chenault, 49 S. W. 1035. The appellee thereupon filed an amended petition, and claimed actual damages only. He based his claim upon four grounds, to wit: (1) Upon a contract for an open crossing made with the company at the time of the condemnation; (2) upon a like contract made when the original crossing was put in; (3) upon the statutory right to an open crossing, which he contended was conferred by article 4427, Rev. St.; (4) upon his right to an open crossing as a way of necessity. There was a trial by jury, and the court, in effect, instructed the jury that the appellee was entitled to an open crossing, and to allow him such damages as would

compensate him for the failure of the company to provide one. There was a verdict for appellee for $1,100, and the appellant has appealed.

There was no evidence whatever tending to show a contract made at the time of the condemnation. There was evidence introduced for the purpose of showing a contract made at the time the original crossing was put in, but, whatever may be said of the proof on this issue, it was not sufficiently conclusive to authorize the court to assume the existence of such contract. The court, even though requested to do so by the appellee, refused to submit to the jury the question as to the right of the appellee to an open crossing as a way of necessity; and the evidence on this issue was not sufficient to justify the court in concluding, as a matter of law, that appellee was entitled to such crossing. The court must therefore have held that article 4427, Rev. St., applies to this case, and that the opening there provided for means an open crossing. It is to the questions arising from this holding that we must address our attention.

Article 4427 reads as follows: "All railway corporations in this state which have, or which may hereafter fence their right of way, may be required to make openings or crossings through their fence and over their road bed along their right of way every one and one-half mile thereof: provided, that if such fence shall divide any inclosure that at least one opening shall be made in said fence within such inclosure." Article 4428 describes the character of the crossings to be put in. Articles 4429 and 4430 provide who may demand the crossing, and how the demand shall be made. Articles 4431 and 4432 provide how the demand shall be complied with. Article 4433 provides a penalty for failing to comply with the demand. Article 4434 provides that the articles above mentioned shall not be construed to affect the law requiring railroad companies to put in crossings at streets and public roads. These articles of the statute were first enacted in 1887. It was held by the supreme court in Railway Co. v. Rowland, 70 Tex. 298, 7 S. W. 718, that the act of 1887 did not apply where the company had acquired its right of way prior to the time the law of 1887 went into effect. The judgment of the county court above mentioned was rendered before the act of 1887 became effective, and it was provided by the judgment that the title to the right of way should vest in the company upon the payment into court of the amount recovered by the Chenaults. There was then in the hands of the clerk of said court, which had been deposited by the company, an amount more than sufficient to satisfy the judgment. The appellant contends that notwithstanding its appeal from the judgment, and the giving by it of the supersedeas bond, it acquired the right of way by virtue of the judgment and the deposit, and, this occurring before the

act of 1887 became operative, the statute relied on by the appellee does not apply to this case. It was decided by this court on the former appeal that the contention was not well taken, and we are of opinion that the decision was correct. Indeed, we do not regard the question now as being an open one in this state. In Crary v. Dock Co., 45 S. W. 842, the court of civil appeals of the Galveston district decided the question in accordance with the holding of this court. And in 1899 the legislature, recognizing the correctness of the decision, passed an act providing for the taking of the right of way by the making of a deposit pending the final disposition of the condemnation proceedings. See Acts 1899, p. 105. It may therefore be regarded as settled that prior to the passage of the act of 1899 a railway company could not and did not acquire its right of way by a deposit made before the condemnation litigation was finally terminated and the damages awarded paid. It will be remembered that the judgment of condemnation in the Chenault Case, while it was rendered before the act of 1887 went into effect, was not affirmed and paid off until 1890,-long after the law became operative. We hold, as before, that the company did not acquire its right of way until it satisfied the judgment in 1890. An extended discussion of the question is unnecessary.

The appellant contends that, although the views here expressed may be correct, the judgment provides that the title to the right of way should vest upon the making of the deposit, and that, the deposit having been made, it acquired the right of way at that time, unless the judgment had been set aside. It is now insisted that it is a collateral attack on the judgment to deny that it was effective in vesting title as it purported to do. We reply that the court was absolutely without jurisdiction to vest title; that the law vested the title upon the compliance by the corporation with the provisions of the statute, and not until then. The court having exceeded its jurisdiction in rendering judgment vesting title, the judgment in that respect was of no effect, and could be attacked in any proceed. ing where it was relied on.

The next question that arises is, must the farm crossing mentioned in article 4427 be an open one? Prior to the enactment of the law of 1887, when an inclosure was divided by a railroad running through it, the landowner was entitled to a crossing as a way of necessity, but it was his duty to put in and maintain the crossing at his own expense. Because this duty rested upon him, the company was required to compensate him therefor before it could take his property and construct its road. Railway Co. v. Rowland, supra. A way of necessity must be adequate. It must be reasonably convenient and sufficient to meet the necessities of the person entitled to the way. And if the use of gates at the crossing materially