Chief Justice Fisher held that similar testi- | Engine Co. v. Peveto, 150 S. W. 279; Mechem mony should have been rejected, the condi- on Sales, §§ 817-1830. tions not having been shown to be similar. The fifteenth assignment is sustained. [10] Assignments 16, 17, 17, 18, and 19 raise, in different forms, objections to the measure of damages as submitted by the court and are treated together. It is contended that the fall in the price of potatoes and others rotting in the ground was not the natural and proximate result of the engine not being as provided in the contract, and could not reasonably be foreseen at the time the contract was made. Further that appellant was not responsible for fluctuations in the potato market. But it is shown that at the time the engine was purchased, and many times thereafter, appellant was apprised of the purposes for which it was bought. In fact, Mr. Marlin, president of appellant, testified: "I knew they wanted the engine, which they were thinking of purchasing, for the purpose of use on the potato farm." [13] Appellee Adams having testified that Fahling had refused to deliver the magneto unless Adams & Peters would sign the notes, it was not irrelevant to permit appellant's witnesses C. A. Leavens and C. W. Marlin to testify that they had not given Fahling such instructions when they sent the magneto by him to appellees; but this was not such error as would cause us to reverse the case, if that were the only trouble. What we have already said makes it unnecessary to say more than that all other assignments are overruled. The judgment is reversed, and the cause remanded. On Motion for Rehearing. [14] Appellees urge, in their motion for a rehearing, that this court erred in sustaining appellant's assignments of error numbered 6, 7, 8, 10, and 11 for the reason that said assignments complained of the errors of the trial court in either giving charges or refusing charges to the jury, and that there are no bills of exception in the record to the action of the court complained of in the as power to consider and determine such assignments. It is argued that it would be speculative to a high degree to hold appellant for loss of potatoes by rotting and for a fluctuation in the market eight or nine months after the contract was made. It was well known, how-signments, and therefore this court had no ever, at the time the engine was sold, that it was to be used in raising and harvesting a crop of potatoes, and it must have been in contemplation of the parties that the crop would mature at about the time it was gathered. And it must likewise have been in the minds of all the parties that the market was subject to fluctuations. The only way that damages could be proven, then, would be to prove the market price at the time the potatoes should have been gathered, and what it was at the time they were able to harvest them on account of any defects in the engine. We do not think the court erred in this re spect, except that, of course, appellants would be entitled to full protection and credit for what the crop brought on the market. These assignments are overruled. [11] As to whether appellees used due diligence to protect themselves against loss after the discovery of the defects, if any, in the engine was a question for the jury, and the twentieth assignment is overruled. Both parties to this appeal filed lengthy and able briefs, but appellees nowhere in their brief made any objection to the consideration of these assignments. Nor was our attention ever called to the fact that no bills of exception were reserved to the action of the court in such matter until the motion for a rehearing was filed. Under rule 40 this court is authorized to rely upon the briefs for a proper presentation of the case on appeal, without an examination of the record; and to assume that if there were any objections to the assignments or to the matters upon which the same were predicated, the other party would call our attention to it. Rule 41 (142 S. W. xiv), expressly provides that: "Whatever of the statements of appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in." We did not go into the lengthy transcript to see if there were preserved bills of exception, but assumed that, if counsel for appellees had any objection to the consideration of said assignments, the same would have been made known to us. Appellant insists that objections or exceptions were preserved and are shown in the record; but that is aside from the question. To tolerate a practice of this kind would virtually require a resubmission of the case. Certainly another consideration along a line not heretofore presented to us. It would be equivalent to giving a party two opportunities to brief the [12] In regard to the engine itself, the measure of damages would be the difference between what it was worth at the time received and the contract price, and not what it was worth in June of the following year. This being an action for rescission, the evidence of value in June was doubtless permitted to support the allegation that it was of no value, and thereby avoid an actual tender. Assignment 22 is therefore sustained. Aultman v. Hefner, 67 Tex. 59, 2 S. W. 861; Heisig Rice Co. v. Fairbanks, Morse Co., 45 Tex. Civ. App. 383, 100 S. W. 959; Ault-case. No matter what disposition this court man Co. v. Cappleman, 36 Tex. Civ. App. 523, 81 S. W. 1244; Southern Gas & Gasoline would have made of these assignments, had timely objection been made, when able coun sel present to us a brief upon all of them, in which they are presumed to urge every point favorable to them and do not raise the question, now for the first time urged, until a motion for rehearing, this court will consider that any other objection not contained in the brief was waived, unless it be some matter of fundamental law. And this is not a question of fundamental law, being purely one of procedure. Other matters require a reversal anyway, and the motion for rehearing by appellee is overruled; and a like disposition is made of appellant's motion for rehearing. BELL v. STATE. (No. 3226.) 1914.) der, and his punishment fixed at 13 years in the penitentiary. [1] There appears in the record what purport to be three very meager and insufficient bills of exceptions as to the introduction of evidence. The Assistant Attorney General contends that this court cannot consider said bills, because they were filed 55 days after the adjournment of the court, when the court allowed no such time for filing the same. His contention is correct. The statute allows 30 days only after adjournment to file bills of exceptions without the court making any order to that effect. It authorizes the court to grant a longer time for good cause shown. No longer time was allowed. Hence neither of the bills can be considered. C. C. P. art. 845. It is needless to cite the many (Court of Criminal Appeals of Texas. Oct. 14, cases of this court's uniformly complying with the statute. Besides, each of the bills is so 1. CRIMINAL LAW (§ 1092*)-EXCEPTIONS- Wholly insufficient that neither of them could BILL OF-TIME OF FILING. Under Code Cr. Proc. 1911, art. 845, allow-be considered. Best v. State, 164 S. W. 997. ing the filing of exceptions within 30 days aft- Still further, if they had been filed in time er adjournment, and providing that the court and been sufficient to raise the question, the may for good cause shown extend the time, bills testimony objected to was admissible. of exception filed more than 30 days after adjournment cannot be considered where no order of extension was procured. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.*] [2] By the act of our Legislature approved April 5, 1913, amending certain articles of our Criminal Procedure, it requires a defendant to make objections to the court's charge, or an omission therein, before the charge is 2. CRIMINAL LAW (§ 922*)-APPEAL-PRESEN- read to the jury and prohibits this court TATION OF GROUNDS OF REVIEW IN COURT BELOW. Under Act April 5, 1913 (Acts 33d Leg. c. 138), requiring objections to the charge or an omission therein to be made before it is read to the jury, objections to omissions in the charge cannot for the first time be made in the motion for new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. 8 922.*] 3. CRIMINAL LAW (§ 1159*)-TRIAL-PROV INCE OF JURY. When the punishment inflicted by the jury is within that prescribed by the Legislature, and the evidence is sufficient to support a conviction, it will not be disturbed on appeal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*] 4. CRIMINAL LAW (§ 1208*)-PUNISHMENTINDETERMINATE SENTENCE. Under the statute prescribing as punishment for an assault with intent to murder, imprisonment for not less than 2, nor more than 15, years, the sentence should be indeterminate, and, if made for a given term of years, will be reformed on appeal. from reversing a case because of defects in the charge when no such objections were made. Since the passage of that act, this court has uniformly, in many decisions, construed and followed this statute. It is unnecessary to cite them. No exception whatever was made in any way to the charge of the court. However, in the motion for new omission in the charge, in that the court did trial only, appellant complains of a claimed not submit to the jury whether or not they could suspend the sentence. This does not raise the question in such way that this court can consider it under the statute and decisions. [3, 4] Appellant also complains in his motion for new trial that the evidence is insufficient to support the verdict. He also claims that the penalty is excessive. We have carefully read the evidence. The state's side of it, by a preponderance, makes an aggravated case. Appellant's victim was his wife. We could not disturb the verdict of the jury on appellant's contention. Neither could we disturb it because of the claim of its being excessive. It has always been held by this court that, when the punishment inflicted by the jury is within that prescribed by the LegRe-islature, the jury, and not this court, is to determine his punishment, and this court is bound by that fixed by the jury. The punC. E. Lane, Asst. Atty. Gen., for the State. ishment for this offense is confinement in the [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. § 1208.*] Appeal from District Court, Ft. Bend formed and affirmed. PRENDERGAST, P. J. Appellant was convicted for an assault with intent to mur penitentiary for not less than 2, nor more than 15, years. The punishment assessed in this case was 13 years. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [1] There is no bill of exceptions nor statement of facts. There are but two questions mentioned in the motion for new trial. The first is that the verdict is not supported by the evidence. Of course, in the absence of a statement of facts, this cannot be considered. [2] The other is, "The court erred in overruling suspension of sentence." The verdict of the jury found the appellant guilty and fixed her punishment, and further, "We further find that the defendant has never before been convicted of a felony in this state or any other state." The suspended sentence law requires that the jury shall recommend the suspension of sentence. The court cannot suspend, unless the jury so recommend Cal Heidelberg was convicted of murder, in the verdict. This court has so often deand he appeals. Affirmed. See, also, 159 S. W. 1187. C. E. Lane, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of murder, and his punishment assessed at 12 years' confinement in the state penitentiary. The only ground in the motion for a new trial complains of the insufficiency of the evidence. As no statement of facts accompanies the record, this ground cannot be reviewed. The judgment is affirmed. JOHNSON v. STATE. (No. 3227.) (Court of Criminal Appeals of Texas. Oct. 14, 1914.) 1. CRIMINAL LAW (§ 1097*)-APPEAL-PRESENTATION FOR REVIEW. In the absence of a statement of facts, the sufficiency of the evidence to sustain a verdict of guilty cannot be considered on appeal. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*] 2. CRIMINAL LAW (§ 982*)-SUSPENSION OF SENTENCE-VERDICT. Where a verdict of guilty recited "that de fendant has never before been convicted of a felony," but contained no recommendation for suspension of sentence, the court could not suspend sentence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.*] Appeal from District Court, Collin County; M. H. Garnett, Judge. cided that, in verdicts precisely as this, the court could not suspend sentence that we think it unnecessary to further review the question. We cite only some of the cases. Roberts v. State, 158 S. W. 1003; Potter v. State, 159 S. W. 846; King v. State, 162 S. W. 890. The judgment is affirmed. ALLEN v. STATE. (No. 3225.) (Court of Criminal Appeals of Texas. Oct. 14, 1914.) HIGHWAYS (§ 186*)-USE OF HIGHWAY-OFFENSES EVIDENCE. A conviction for the violation of Pen. Code 1911, art. 815, prohibiting the driving of an automobile upon any public road at a greater speed than 18 miles per hour, must be reversed, where the evidence does not establish that the road where the automobile was run was a public road. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 476, 477; Dec. Dig. § 186.*] Appeal from Wichita County Court; C. B. Felder, Judge. Reese Allen was convicted of operating an automobile on a public road at a greater speed than 18 miles per hour, and he appeals. Reversed and remanded. Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. T. R. Boone, Co. Atty., of Wichita Falls, and C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted for operating an automobile on a public road in said county at a greater rate of speed than 18 miles per hour. The statute is, no automobile shall be driven or operated upon any public road at a greater C. E. Lane, Asst. Atty. Gen., for the State. rate of speed than 18 miles an hour. P. C. Lou Johnson was convicted of selling intoxicating liquors in prohibition territory, and appeals. Affirmed. PRENDERGAST, P. J. Appellant was convicted for unlawfully pursuing the occupation or business of selling intoxicating liquors in prohibition territory, and her punishment fixed at the lowest prescribed by law. 1911, art. 815. There are but two questions necessary to be passed upon. The first: Appellant claimed the evidence was insufficient to identify him as the party who operated the machine at the time and upon which this prosecution was based. We have read the evi For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes CRIMINAL LAW (§ 1099*)-APPEAL-STATE MENT OF FACTS-TIME OF FILING. Statements of facts showing the evidence heard on motions for new trial will not be considered on appeal unless filed within term time. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. 1099.*] dence carefully, and, in our opinion, the evi-5. Because the evidence does not establish that the automobile was operated upon a public road, this case must be reversed and remanded. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.*] 2. LABEL AND SLANDER (§ 159*) CRIMINAL PROSECUTION-EVIDENCE-SLANDER." In a prosecution for a violation of Pen. Code 1911, art. 1180, declaring that if any person shall falsely and maliciously or falsely and wantonly impute unchastity to any female, he shall be guilty of slander, where the complaint and information were in the words of the statute, the refusal of a requested special charge that, unless accused made the statements alleged wantonly and falsely, he should be acquitted is properly refused; for he was guilty if he falsely and maliciously made them. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 444; Dec. Dig. § 159.* For other definitions, see Words and Phrases, First and Second Series, Slander.] 3. CRIMINAL LAW (§ 1099*)-APPEAL-STATE MENT OF FACTS. Where the attorneys failed to agree upon a statement of facts, and the county judge, in preparing the statements, made a complete statement of the facts in evidence on the main trial and then made a separate statement of the facts of the evidence beard on the motion for new trial, which was placed after the principal statement, there was no error. Appeal from Taylor County Court; E. M. Overshiner, Judge. Henry Ethridge was convicted of slander, and he appeals Affirmed. Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant appeals from a conviction of slander. We have carefully read and considered the statement of facts and record in this case more than once. The evidence amply sustains the verdict. Appellant contends, and presents the question in various ways, that the evidence did not establish that the slanderous language used by him was with reference to the young girl it was alleged it was used about. It is unnecessary to detail the evidence. No useful purpose could be subserved by doing so. There can be no question from the evidence but that the language used was about the young girl and no other. The court's charge required the jury to so believe before they could convict. [1] The uncontradicted evidence shows that the slanderous language was used by appellant in the presence and hearing of six persons. The state introduced three of these, who testified positively to its use. Appellant introduced another one of these witnesses, who testified about other matters, but appellant did not have him testify on this subject. The other two of these witnesses were not introduced by either side. The record clearly indicates that these witnesses, or John Reed, one of them, especially, was friendly and favorable to appellant, and present at the trial. By one of his bills of exceptions he complains that the attorney specially employed in behalf of the state used this language in his argument to the jury: "John Reed was present down there on the road that night where the defendant uttered these false and malicious words against this young lady. John Reed is here in attendance upon this court, and the defendant has not seen fit to put John Reed on the witness stand to deny that he made the statement, and it has not been denied that the defendant said it." Appellant claims that this statement was [Ed. Note. For other cases, see Criminal an allusion to the fact that the appellant Law, Cent. Dig. §§ 2866-2880; Dec. Dig. 8 himself did not testify, and claims that it is 1099.*] reversible error. He asked no written charge of the court that the jury should disregard it. In our opinion, it is not a reference to the appellant's failure to testify, and it does not present error. Link v. State, 164 S. W. 995, and cases therein cited; Gatlin v. State, 163 S. W. 428, and cases therein cited. It is needless to collate and cite the many cases to the same effect. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [2] The complaint and information aver | What that evidence was is not shown by any that appellant did "falsely and maliciously bill of exceptions filed within term time, nor and falsely and wantonly impute," etc., a by any statement of facts filed within term want of chastity to the young girl, naming time. There is, as stated above, a statement her, in the presence and hearing of certain of facts made by the judge of the testimony persons, naming them, and averring the lan- he heard on said motion, but it was not filed guage used. This followed the language of until some time after the court had adthe statute. P. C. art. 1180. The evidence journed. After hearing the evidence the clearly raised and would sustain a verdict court overruled the motion, and we must more especially that appellant used said lan- conclude that the evidence he heard clearly guage falsely and maliciously as well as justified him in so acting. That we cannot falsely and wantonly. Appellant requested consider that purported statement of facts only one charge, which is to this effect: has been too long and well established to require discussion. In Graham v. State, 163 S. W. 730, we cited some of the cases, holding: Before you can convict the defendant you must find beyond a reasonable doubt that he made the statements alleged in the complaint, and that they referred to said girl, and that they were falsely and wantonly made, and, unless you so find, you will acquit him. "Statements of facts, showing the evidence heard on motions for new trial, under the unito be considered by this court, must be filed form and an unbroken line of decisions, in order within term time, and, unless so filed, it cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mikel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; Williams v. State, 56 Tex. Cr. R. 225, 120 S. 133 S. W. 263; Tarleton v. State, 62 S. W. W. 421; Probest v. State, 60 Tex. Cr. R. 609, 748; Knight v. State [64 Tex. Cr. R. 541], 144 S. W. 977; Bailey v. State, 144 S. W. 1005. See, also, Jordan v. State, 10 Tex. 502; Sharp v. State, 6 Tex. App. 658." It will be seen by this that this special charge would have submitted only that said statements were falsely and wantonly made and to acquit him if they were not, leaving out entirely the other element that they were falsely and maliciously made. The court did not err in refusing to give this special charge. It has always been held by this court that, if the special charge requested in a misdemeanor case is not correct as applicable to the case, the court must refuse it. This charge would have erroneously told the jury to acquit appellant, unless he false. ly and wantonly made the statements, when, ible error, and the judgment is affirmed. as a matter of fact, he was guilty if he falsely and maliciously made them. Lawrence v. State, 20 Tex. App. 536; Sparks v. State, 23 Tex. App. 448, 5 S. W. 135; Hobbs v. State, 7 Tex. App. 118; Perkins v. State, 144 S. W. 245; Mealer v. State, 145 S. W. 354. It is unnecessary to cite the many other cases so holding. [3] By appellant's only other bill he complains that the court committed reversible error by making up in the statement of facts on the main trial also a statement of facts of the evidence introduced on the hearing of the motion for new trial. The attorneys failed to agree upon a statement of facts. The duty therefore devolved upon the county judge. He made and certified to a complete statement of facts of the evidence on the main trial. Following that, but entirely separate and distinct, he also made a statement of facts of the evidence heard on the motion for new trial and certified to that; the certificate to each being entirely separate and distinct. This, of course, presents no error. [4, 5] The only other question necessary to be considered is appellant's complaint that the court should have granted his motion for new trial, because of newly discovered evidence. He attached the affidavits of certain persons of what he claims to be newly discovered evidence which he claims they would testify. The state contested this motion. The record, without question, shows, which was proper, that the court, in considering that motion, heard evidence thereon. The record in this case shows no revers THETFORD et al. v. STATE. (No. 3237–39.) (Court of Criminal Appeals of Texas. Oct. 14, 1914.) BAIL (§ 94*)-BAIL BONDS-FORFEITURE. The statute having provided that proceedings to forfeit bail bonds shall be placed on the civil docket and governed by the rules governing other civil actions, a party appealing from a judgment of forfeiture must file briefs in the lower court and in the Court of Criminal Appeals as in civil actions; hence an appeal from such judgment must be dismissed where no briefs were filed. Dig. 88 418-423; Dec. Dig. § 94.*] Appeal from District Court, Denton County; C. F. Spencer, Judge. Proceeding by the State of Texas against J. B. Thetford and others for the forfeiture of bail bonds. From several judgments forfeiting the several bonds, the defendants appeal. Appeals dismissed. C. E. Lane, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. These three cases are by the same appellants and present exactly the same question. The judgment appealed from in each case is a final judgment on a forfeited bail bond. Our statute expressly provides that such cases shall be placed on the civil docket and the proceedings shall be governed by the same rules governing other civil actions. Our law requires an appellant in such case For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-73 |