Appeal from Tarrant County Court; Hugh L. Small, Judge. or within its passenger depot, suitable and out through a change in the personnel of the separate water-closets, or if they found that corporation's servants, and that defendant was the railway company failed and neglected ignorant that the car was operated without seal. to maintain such closets within a reasonable and convenient distance from the depot. Since the uncontradicted evidence showed that the railway company had failed and neglected to maintain any closets within its passenger depot, the first part of this charge was virtually an instruction to find for the state, regardless of how the real issue in the case might be determined. This error was not cured by the contradictory instruction to find for defendant, if the closets were within a reasonable and convenient distance from the station. Baker v. Ashe, 80 Tex. 361, 16 S. W. 36; M., K. & T. Ry. Co. v. Rodgers, 89 Tex. 680, 36 S. W. 243. F. W. Axtell, was convicted of violating Acts 35th Leg. c. 207, as amended, by operating a motor vehicle without having displayed on the front end the seal for the current year assigned by the Highway Department, and he appeals. Reversed and remanded. C. R. Bowlin, of Ft. Worth, for appellant. Alvin M. Owsley, Asst. Atty. Gen., for the State. MORROW, J. The statute under which the prosecution was established provides: [4] The difference is patent between what is a convenient place at Flatonia and what "No person shall operate or drive a motor is a reasonable and convenient distance from vehicle on the public highways of this state the passenger depot at Flatonia. As applied unless such vehicle shall have at all times conto water-closets for persons at a railroad spicuously displayed on the front end thereof station, a convenient place for same would be the seal for the current year assigned to said within the passenger depot, giving to the motor vehicle by the highway department." word "convenient" its common meaning of Acts 35th Leg. c. 207, amended by same Leg"easy of access." In comparison with closets islature, 1st Called Session, c. 31, and of 3d within the depot, those without same would Called Session, c. 13 (Pen. Code Supp. 1918. not be at a convenient place. But the stat-arts. 820yy, 820z). ute's requirements are met by closets with- The evidence in the case is not controvertout the depot and within a reasonable and ed. Appellant is president and general manconvenient distance therefrom. However ager of a corporation in the conduct of convenient the location within the depot, such location would be neither reasonable nor sanitary in a town like Flatonia, without a sewer system. Hence the jury's verdict that the railroad company was found "guilty for the sum of $5,000 for not having their closets at a convenient place at Flatonia, Texas," does not find the facts essential to support the imposition of penalties on plaintiff in error, under the statute and under the true and single issue in this case. whose business 16 automobiles were used. The business of the corporation was supervised in the main by the son of appellant, and the conduct of the automobiles was in charge of a foreman. It was shown that one of these cars was driven by one of the employés of the company upon the highway without a seal, and an arrest resulted. It was also shown that the appellant's son, in pursuance of his management of the business, had obtained a license and seals for 16 cars. including the car in question; that the son undertook to see to having the seals attached to the cars, and he gave directions to his employés to attach them, and they were attached at the time to all of the automobiles except one, which at that time was out on a trip somewhere in the country; that the foreman to whom was committed the service left the employ of the company, and neither the appellant nor his son was aware of the fact that the order to have the seal placed upon the car in question had not been complied VE- with until the time of the arrest. It follows that the judgments of the district court and of the Court of Civil Appeals should be reversed, and the cause remanded to the district court for a new trial, and it is so ordered. (86 Tex. Cr. R. 264) AXTELL v. STATE. (No. 5582.) (Court of Criminal Appeals of Texas. 26, 1919.) LICENSES 42(2)—OPERATION OF MOTOR Nov. In a prosecution under Acts 35th Leg. c. 207, as amended, against the president and general manager of a corporation, based on the operation by the corporation of a motor car on which the seal assigned by the highway department was not displayed, it is a defense that defendant procured a seal for such car, as he did for all the others, and gave orders for its attachment, which orders were not carried The appellant requested an instruction to the effect that the payment of the tax and securing of the seal with the intent on the part of the appellant to attach it to the car in connection with his orders to the employé to do so would constitute a defense to the prosecution, provided the seal was not left unattached with the knowledge of the appellant, but that its absence was due to accident (216 S.W.) or mistake. We think that these facts would | tioned, and more or less discussed, which constitute a defense, and that the jury should were not introduced in evidence. Appellant have been so instructed. The absence of the was convicted for killing a man by the name seal from the car would be prima facie proof of Bostick. The bill, in brief, recites that of the guilt of the person operating the car, the jury mentioned and discussed the fact but we believe he should not be held guilty that appellant had been indicted for the of a criminal offense where he was able to killing of Judge C. C. Higgins, and also the show he had paid the tax and obtained the fact that Rasberry, a codefendant of this seal, and exercised all reasonable means and appellant, had been previously tried in Jones care to have it attached to the car, and that county, and allotted a term of 10 years in the the operation of the car without it was con- penitentiary. Neither of these questions was trary to his intent and without his knowl- before the jury in admitted testimony. It edge. occurred after the retirement of the jury and before reaching their verdict. Upon the first ballot after the jury retired they stood six for conviction and six for acquittal. It was stated by one or more of the jurors in the jury room that appellant was under indictment for killing The judgment is reversed, and the cause remanded. (86 Tex. Cr. R. 298) LUMAN V. STATE. (No. 5577.) (Court of Criminal Appeals of Texas. Nov. 26, Judge Higgins, and that Rasberry, appellant's 1919.) CRIMINAL LAW 857(2) MISCONDUCT OF JURY. In homicide prosecution, juror's discussion of fact that accused had been indicted for another killing, and of fact that a codefendant had been previously tried and convicted, held misconduct justifying reversal, where such facts were not in evidence and were unknown to some of the jurors before such discussion, and where, on first ballot cast before such discussion, jurors were evenly divided for and against conviction. codefendant, had been convicted in Jones county, and was then serving a term of 10 years in the penitentiary, and it was also stated that Rasberry had not fired a shot, but had been given 10 years, while appellant who did the shooting ought to have 20 or 25 years. It is shown that the facts stated by the jurors were unknown to a number of the jurors until it was mentioned in the jury room. A number of the jurors were introduced as witnesses on the trial of the motion for new trial setting up these matters. The testimony is not much in contradiction as to Appeal from District Court, Haskell Coun- what occurred from the testimony of these ty; W. R. Chapman, Judge. Will Luman was convicted of manslaughter, and he appeals. Reversed. W. H. Murchison, of Haskell, and Cunning- jurors. One or two of them did not hear much about it, and seem to have paid but little attention to it, and one of them, per. haps the foreman, stated to the jury, at the time they were discussing these matters, it should not be considered by them. They all testified substantially that these matters did not influence them in finding their verdict. One of them, however, did state it may have DAVIDSON, P. J. Appellant was convict-affected his action in assessing punishment. ed of manslaughter, and allotted five years Four of the jurors did not testify in this rein the penitentiary. 1 It is unnecessary to make a statement of the case in reference to the facts. The questions presented for revision involve misconduct of the jury and argument of one of state's counsel. With reference to the argument of the prosecuting officer, it may be sufficient to say for this appeal that it is disposed of upon the statement that such argument should not occur upon another trial. This is said in view of the fact that the case will be reversed upon the misconduct of the jury. Portions of the argument of the prosecuting attorney it seems led to some of the alleged misconduct on the part of the jury. The bill of exceptions shows, in substance, that after the jury retired and before arriving at their verdict matters were men gard, and were not placed upon the stand. After deliberating on this matter and after hearing this testimony, the jury returned a verdict for manslaughter, and gave appellant 5 years without suspended sentence, which he had requested them to do. We are of opinion that this is such misconduct as will require a reversal of this judgment. The matter has been discussed frequently and elaborately, and so much so that the writer does not feel called upon to elaborate the questions. The Horn Case, 50 Tex. Cr. R. 404, 97 S. W. 822, seems to be very much in point. The questions involved are very sim ilar. See, also, McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Weber v. State, 78 Tex. Cr. R. 253, 181 S. W. 459; Weaver v. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes State, 210 S. W. 699; Mills v. State, 74 Tex. | indicating their intention by the following quesCr. R. 137, 168 S. W. 88; Mizell v. State, 197 S. W. 303; Chenault v. State, 201 S. W. 658. Judge Henderson, in the Horn Case, supra, discussed these matters at length, as did Judge Morrow in the Weaver Case, supra, and Judge Hurt in the Mitchell Case, supra. Judge Morrow discussed the matter at some length in the McDougal Case, supra. See, also, Gilbert Case, 215 S. W. 106. We are of opinion that this misconduct of the jury was such as to require a reversal of this judgment; and it is accordingly so ordered. (86 Tex. Cr. R. 439) LUCAS v. STATE. (No. 5476.) tion, directed to Elsie Allen Nelson, the prosecutrix, who was a witness on the stand at the time: 'On or about the 19th day of November, 1918, or within a year prior thereto, tell the jury what were the relations between you and the defendant, J. C. Lucas.' To which counsel for the defendant, J. C. Lucas, objected and continued to renew his objections each time such evidence was sought to be introduced as appears from the statement of the statement of facts, assigning as the grounds for his objections the following reasons that the matter tioned in the indictment; That it was an atsought to be introduced was not at a date mentempt to prove a separate, independent, and distinct offense from the one on trial; that it was no part of the res gestæ; no part of any system shown to have been used by the defendant; nor was it an attempt to identify him, but that it was an attempt to prejudice him before (Court of Criminal Appeals of Texas. Nov. 5, the jury by showing a course of events which 1919. On Motion for Rehearing, A bill of exceptions, complaining that prosecutrix in statutory rape case was allowed to answer questions as to the relations between herself and defendant at a previous time, held insufficient to present the complaint that the state was allowed to introduce evidence of criminal acts barred by limitations not showing what was the answer of the prosecutrix. 2. CRIMINAL LAW 507(7)—PROSECUTRIX IN STATUTORY RAPE NOT ACCOMPLICE. Prosecutrix in statutory rape case is not an accomplice, so conviction may be had on her uncorroborated testimony. would necessarily have the effect of injuring his reputation before the jury, and the court overruled said objections, to which the defendant, through his counsel, excepted to said ruling and herewith tenders his bill of exceptions, and asks that the same be signed and made a part of the record in said cause, which is accordingly done." It is manifest that this bill is not sufficient. There is no statement therein of what the witness testified in answer to the questions set forth. The question is not objectionable on its face, and, in the absence of a showing in the bill itself that a witness gave an objectionable answer, the bill will not be considered. [2] The motion for a new trial complains of the insufficiency of the evidence to corAppeal from District Court, Galveston roborate the prosecutrix, the ground of said County; H. C. Hughes, Judge. complaint being that she is an accomplice and J. C. Lucas was convicted of statutory not corroborated. The prosecutrix testified rape, and he appeals. Affirmed. See, also, 215 S. W. 299. fully to facts showing the guilt of accused, and under numerous holdings of this court is not an accomplice. Hamilton v. State, 36 John T. Wheeler, of Galveston, for appel-Tex. Cr. R. 372, 37 S. W. 431; Donley v. lant. LATTIMORE, J. In the above case, the appellant was convicted of statutory rape upon a female under the age of 15 years, in the district court of Galveston county, Tex., and his punishment was fixed at confinement in the penitentiary for a period of 25 years. [1] There appears to be only one bill of exceptions in the record, which is as follows: "Be it remembered that on the trial of the above-entitled cause, the state offered to prove a series of acts of sexual intercourse between the defendant, J. C. Lucas, and the prosecutrix, antedating, prior to, and beyond the period of limitation of the act alleged to have been committed on the date set forth in the indictment, State, 44 Tex. Cr. R. 428, 71 S. W. 959. No complaint is made to us of the charge of the court, nor of any matter with regard to the introduction of evidence, except as above stated. There being no error in the record, the judgment of the trial court is affirmed. On Motion for Rehearing. The appellant has filed a formal motion for rehearing, without citation of authorities, or reasons stated why same should be granted. We are unable to find error in the original opinion of this court, and the motion for rehearing is overruled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (S6 Tex, Cr. R. 269) CHADWICK v. STATE. (216 S.W.) (No. 5505.) (Court of Criminal Appeals of Texas. Nov. 26, 1919.) 1. CRIMINAL LAW 295, 1149-REVIEW OF RULING ON PLEA OF FORMER JEOPARDY. A plea of former jeopardy, setting out that after a trial had begun, defendant's plea, entered, and evidence heard, the jury were wrongfully dismissed, raised a question of fact; and, while the burden was on defendant to show an abuse of the court's discretion in discharging the jury, he had the right to show that the court erred therein, if possible, and, if not satisfied with the ruling, to bring the matter up for review. county attorney, said plea of jeopardy was stricken out, and no evidence heard in support thereof, to which action the appellant objected, the same being also set up as a ground of the motion for a new trial. Under the authority of Bland v. State, 42 Tex. Cr. R. 286, 59 S. W. 1119, this action of the trial court was erroneous. The plea raised a question of fact; and, while the burden was on appellant to show an abuse of the court's discretion in the original discharge of the jury, still he had the right to assume said burden in a case of this kind, and to show by facts, if possible, that the court erred originally in discharging the jury, and, if he was not satisfied with the court's ruling upon the facts presented in support of his plea of jeopardy, he had the right to bring the matter to this court for review. The Bland Case is almost identical ly upon a similar state of facts, except that state of facts in favor of appellant's right to we think the instant case presents a stronger be heard. In the Bland Case, the illness of the juror occurred in the presence of the court, who thereupon excused him, and when Appeal from Grayson County Court; Day- the plea of former jeopardy was later preton B. Steed, Judge. W. E. Chadwick was convicted of keeping and permitting to be kept a bawdyhouse on premises leased and controlled by him, and he appeals. Reversed and cause remanded. C. M. Cureton, Atty. Gen., and John Maxwell, Asst. Atty. Gen., for the State. LATTIMORE, J. In this case appellant was convicted in the county court of Grayson county of the offense of keeping and permitting to be kept a bawdyhouse in the premises leased and controlled by him, and his punishment fixed at a fine of $200, and 20 days in the county jail. There is but one error assigned, which we deem it necessary to discuss. [1] Appellant filed a plea of former jeopardy, setting up that at a former time he was placed upon trial on this same charge, sented, the court sustained the motion to strike it out, stating that of his own knowledge he knew the juror was sick. For the error mentioned, the judgment of the trial court will have to be reversed. [2] We observe that, inasmuch as the state's pleading alleges that appellant was the lessee and tenant of the premises under investigation, the charge of the court should submit to the jury the question as to whether or not appellant in fact occupied that relation to said premises. The judgment of the trial court is reversed, and the cause remanded. (86 Tex. Cr. R. 260) HAVERBEKKEN et al. v. STATE. (No. 5569.) and that after the trial had begun, and his (Court of Criminal Appeals of Texas. Nov. 19, 1919.) ASSAULT AND BATTERY 91. EVIDENCE OF "ASSAULT." plea entered and evidence heard, one of the jurors failed to appear upon the assembling of the court, and that a deputy sheriff was sent for said juror; that said deputy sheriff In a prosecution for assault, evidence that came back, bringing word that said juror defendants ordered prosecuting witness to dewas sick and could not come, whereupon the sist in working upon a public road, one having court swore said deputy sheriff, who stated, in his possession a large rock and the other a over the objection of appellant, based upon stick, and threatening him with injury if he his lack of qualification, that said juror had failed, held to show an offense, under Pen. Code 1911, art. 1008, providing that any ata fever, and could not come to court. Said tempt to commit a battery, or any threatening plea further states that thereupon, and over gesture showing in itself, or by words accomthe objection of appellant, the jury were dis-panying it, an immediate intention, coupled charged, to which action the appellant then with ability to commit a battery, is an "asexcepted. Subsequently, when said case was sault." called for trial, appellant duly presented to [Ed. Note.-For other definitions, see Words the court his plea of former jeopardy, setting and Phrases, First and Second Series, Asup the above facts. Upon motion of the sault.] For other cases, see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Bosque County Court; W. A. I case. It is a companion case to that between York, Judge. Criss and Martin Haverbekken were convicted of assault, and they appeal. Affirmed. B. J. Word and P. S. Hale, both of Meridian, for appellants. Alvin M. Owsley, Asst. Atty. Gen., for the State. the same parties, recently decided by this court. 216 S. W. 397. The questions are the same. Upon the authority of that case, this judgment will be affirmed. MCGREGOR & HENGER v. ESCAJEDA et al. (No. 1013.) Nov. 20, 1919.) CONTROLS CONSTRUCTION. El Paso. tention of the parties must control. 2. PRINCIPAL AND SURETY 59-SURETY'S MORROW, J. The appellants were con- (Court of Civil Appeals of Texas. victed of assault. From the standpoint of the state, the evidence disclosed that the alleged injured party was engaged in work- 1. CONTRACTS 147(1)—PARTIES' INTENTION ing upon a public road, and that the appellants ordered him to desist, and threatened to injure him if he failed, and that at the time one of them had in his possession a large rock, and the other had a stick. While only a few steps from the injured party, they approached him, with a rock and stick drawn in a striking attitude, and using threatening language, in consequence of which the alleged injured party did desist from the work he was doing. LIABILITY NOT TO BE EXTENDED BY IMPLICA- implication beyond the terms of his contract. Where a contractor agreed to pay a subcontractor certain specified prices for building work by providing funds necessary to meet the subcontractor's weekly pay roll with final payment of the balance within 30 days after acceptance of the work, etc., and the subcontractor duly completed his contract but the weekly advancethe contractor could not recover such excess ments exceeded the total sum due, held, that from the subcontractor's sureties on a bond guaranteeing the subcontractor's faithful com pletion of his contract, since to do so would extend the sureties' liability beyond the terms of their bond. Appeal from El Paso County Court at Law; W. P. Brady, Judge. Action by McGregor & Henger against J. A. Escajeda and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Jackson & Isaacs, of El Paso, for appellants. HIGGINS, J. Appellants had contracted to erect a building for the Young Women's Christian Association in the city of El Paso. By written contract dated August 20, 1917, appellants subcontracted a part of the work (Court of Criminal Appeals of Texas. Nov. 26, to S. C. Maese. The material portions of this 1919.) contract pertinent to this appeal are as fol Appeal from Bosque County Court; W. A. lows: York, Judge. Criss and Martin Haverbekken were convicted of assault, and they appeal. Affirmed. B. J. Word and P. S. Hale, both of Meridian, for appellants. Alvin M. Owsley, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellants were convicted of assault and allotted a fine of $15 each. It is deemed unnecessary to discuss this brick and hollow clay tile in the building. "Section 4. The contractor agrees to pay the subcontractor for the performance of his work the following prices: "Face brick, $13.00 per thousand brick laid in the wall. "Common brick $7.00 per thousand brick laið in the wall. "8" hollow tile, 4 cents per square foot of wall. |