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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, 88 817–1830. tions not having been shown to be similar. [13] Appellee Adams having testified that The fifteenth assignment is sustained.

Fahling had refused to deliver the magneto (10) Assignments 16, 17, 1742, 18, and 19 unless Adams & Peters would sign the notes, raise, in different forms, objections to the it was not irrelevant to permit appellant's measure of damages as submitted by the witnesses C. A. Leavens and C. W. Marlin to court and are treated together. It is con- testify that they had not given Fahling such tended that the fall in the price of potatoes instructions when they sent the magneto by and others rotting in the ground was not the him to appellees; but this was not such error natural and proximate result of the engine as would cause us to reverse the case, if that not being as provided in the contract, and were the only trouble. could not reasonably be foreseen at the time

What we have already said makes it unthe contract was made. Further that appel- necessary to say more than that all other lant was not responsible for fluctuations in assignments are overruled. the potato market. But it is shown that at The judgment is reversed, and the cause the time the engine was purchased, and many remanded. times thereafter, appellant was apprised of

On Motion for Rehearing. the purposes for which it was bought. In fact, Mr. Marlin, president of appellant, tes- [14] Appellees urge, in their motion for a tified:

rehearing, that this court erred in sustaining “I knew they wanted the engine, which they appellant's assignments of error numbered 6, were thinking of purchasing, for the purpose of 7, 8, 10, and 11 for the reason that said asuse on the potato farm."

signments complained of the errors of the It is argued that it would be speculative to trial court in either giving charges or refusa high degree to hold appellant for loss of ing charges to the jury, and that there are potatoes by rotting and for a fluctuation in no bills of exception in the record to the the market eight or nine months after the aption of the court complained of in the ascontract was made. It was well known, how- signments, and therefore this court had no ever, at the time the engine was sold, that power to consider and determine such asit was to be used in raising and harvesting a signments. crop of potatoes, and it must have been in

Both parties to this appeal filed lengthy contemplation of the parties that the crop and able briefs, but appellees nowhere in would mature at about the time it was gath-their brief made any objection to the considered. And it must likewise have been in the eration of these assignments. Nor was our minds of all the parties that the market was attention ever called to the fact that no bills subject to fluctuations. The only way that of exception were reserved to the action of damages could be proven, then, would be to the court in such matter until the motion for

Under rule 40 this prove the market price at the time the pota- a rehearing was filed. toes should have been gathered, and what it court is authorized to rely upon the briefs was at the time they were able to harvest for a proper presentation of the case on apthem on account of any defects in the engine. peal, without an examination of the record; We do not think the court erred in this re- and to assume that if there were any objecspect, except that, of course, appellants would tions to the assignments or to the matters be entitled to full protection and credit for upon which the same were predicated, the what the crop brought on the market. These Rule 41 (142 S. W. xiv), expressly provides

other party would call our attention to it. assignments are overruled.

that: [11] As to whether appellees used due diligence to proteot themselves against loss after plaintiff in error in his brief is not contested

“Whatever of the statements of appellant or the discovery of the defects, if any, in the will be considered as acquiesced in." engine was a question for the jury, and the

We did not go into the lengthy transcript twentieth assignment is overruled.

to see if there were preserved bills of excep[12] In regard to the engine itself, the tion, but assumed that, if counsel for appelmeasure of damages would be the difference lees had any objection to the consideration between what it was worth at the time re- of said assignments, the same would have ceived and the contract price, and not what been made known to us. Appellant insists it was worth in June of the following year. that objections or exceptions were preserved This being an action for rescission, the evi- and are shown in the record; but that is dence of value in June was doubtless per- aside from the question. To tolerate a pracmitted to support the allegation that it was tice of this kind would virtually require a of no value, and thereby avoid an actual resubmission of the case. Certainly another tender. Assignment 22 is therefore sustain-consideration along a line not heretofore preed. Aultman v. Hefner, 67 Tex. 59, 2 S. W. sented to us. It would be equivalent to giv861 ; Heisig Rice Co. v. Fairbanks, Morse Co., ing a party two opportunities to brief the 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, would have made of these assignments, had sel present to us a brief upon all of them, in der, and his punishment fixed at 13 years in which they are presumed to urge every point the penitentiary. favorable to them and do not raise the ques- [1] There appears in the record what purtion, now for the first time urged, until a mo-port to be three very meager and insufficient tion for rehearing, this court will consider bills of exceptions as to the introduction of that any other objection not contained in the evidence. The Assistant Attorney General brief was waived, unless it be some matter of contends that this court cannot consider said fundamental law. And this is not a question bills, because they were filed 55 days after of fundamental law, being purely one of pro- the adjournment of the court, when the court cedure.

allowed no such time for filing the same. Other matters require a reversal anyway, His contention is correct. The statute aland the motion for rehearing by appellee is lows 30 days only after adjournment to file overruled; and a like disposition is made of bills of exceptions without the court making appellant's motion for rehearing.

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. BELL V. STATE. (No. 3226.)

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 1914.)

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

[2] By the act of our Legislature approved of extension was procured.

April 5, 1913, amending certain articles of [Ed. Note.-For other cases, see Criminal our Criminal Procedure, it requires a defendLaw, Cent. Dig. $8 2803, 2829, 2834–2861, ant to make objections to the court's charge, 2919; Dec. Dig. $ 1092.*]

or an omission therein, before the charge is 2. CRIMINAL LAW (8 922*)—APPEAL-PRESEN- read to the jury and prohibits this court

TATION OF GROUNDS OF REVIEW IN Court from reversing a case because of defects ir BELOW.

Under Act April 5, 1913 (Acts 33d Leg. c. the charge when no such objections were 138), requiring objections to the charge or an made. Since the passage of that act, this omission therein to be made before it is read to court has uniformly, in many decisions, conthe jury, objections to omissions in the charge cannot for the first time be made in the motion strued and followed this statute. It is unfor new trial.

necessary to cite them. No exception what[Ed. Note.-For other cases, see Criminal ever was made in any way to the charge of Law, Cent. Dig. $$ 2210–2218; Dec. Dig. & the court. However, in the motion for new 922.*]

trial only, appellant complains of a claimed 3. CRIMINAL LAW (8 1159*)—TRIAL-PROVINCE OF JURY.

omission in the charge, in that the court did When the punishment inflicted by the jury not submit to the jury whether or not they is within that prescribed by the Legislature, could suspend the sentence. This does not and the evidence is sufficient to support a con- raise the question in such way that this viction, it will not be disturbed on appeal. [Ed. Note.- For other cases, see Criminal

court can consider it under the statute and Law, Cent. Dig. $8 3074-3083; Dec. Dig. & decisions. 1159.*]

[3, 4] Appellant also complains in his mo4. CRIMINAL LAW ($ 1208*)-PUNISHMENT- tion for new trial that the evidence is insufINDETERMINATE SENTENCE. Under the statute prescribing as punish

ficient to support the verdict. He also claims ment for an assault with intent to murder, im- that the penalty is excessive. We have careprisonment for not less than 2, nor more than fully read the evidence. The state's side of 15, years, the sentence should be indeterminate, it, by a preponderance, makes an aggravated and, if made for a given term of years, will be case. Appellant's victim was his wife. We reformed on appeal. (Ed. Note.-For other cases,

could not disturb the verdict of the jury on

see Criminal Law, Cent. Dig. &$ 3281–3287, 3289–3295; Dec. appellant's contention. Neither could we disDig.' 1208.*]

turb it because of the claim of its being exAppeal from District Court, Ft. Bend cessive. It has always been held by this County; Sam'l J. Styles, Judge.

court that, when the punishment inflicted by Nemeyer Bell was convicted of an assault the jury is within that prescribed by the Legwith intent to murder, and he appeals. Re- islature, the jury, and not this court, is to

determine his punishment, and this court is formed and affirmed.

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

penitentiary for not less than 2, nor more PRENDERGAST, P. J. Appellant was than 15, years. The punishment assessed in convicted for an assault with intent to mur- 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

The sentence is for 13 years, instead of [1] There is no bill of exceptions nor stateindeterminate. It is ordered reformed and ment of facts. There are but two questions affirmed.

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 HEIDELBERG v. STATE. (No. 3210.) a statement of facts, this cannot be con(Court of Criminal Appeals of Texas. Oct. 14, sidered. 1914.)

(2] The other is, “The court erred in overCRIMINAL LAW (f 1097*) APPEAL STATE- ruling suspension of sentence." The verdict MENT OF Facts—NECESSITY. The sufficiency of the evidence to sustain a

of the jury found the appellant guilty and conviction cannot be reviewed, where no state fixed her punishment, and further, “We furment of facts accompanies the record.

ther find that the defendant has never before (Ed. Note.-For other cases, see Criminal been convicted of a felony in this state or Law, Cent. Dig. 85 2862, 2864, 2926. 2934, 2938, any other state.” The suspended sentence 2939, 2941, 2942, 2947 ; Dec. Dig. $ 1097.*]

law requires that the jury shall recommend Appeal from District Court, Newton Coun-| the suspension of sentence. The court canty; A. E. Davis, Judge.

not suspend, unless the jury so recommend Cal Heidelberg was convicted of murder, in the verdict. This court has so often deand he appeals. Affirmed.

cided that, in verdicts precisely as this, the See, also, 159 S. W. 1187.

court could not suspend sentence that we C. E. Lane, Asst. Atty. Gen., for the State. think it unnecessary to further review the

question. We cite only some of the cases. HARPER, J. Appellant was convicted of Roberts v. State, 158 S. W. 1003; Potter v. murder, and his punishment assessed at 12 State, 159 S. W. 846; King v. State, 162 S. years' confinement in the state penitentiary.

W. 890. The only ground in the motion for a new

The judgment is affirmed. trial complains of the insufficiency of the evidence. As no statement of facts accompanies the record, this ground cannot be re ALLEN v. STATE. (No. 3225.) viewed.

(Court of Criminal Appeals of Texas. Oct. 14, The judgment is affirmed.

1914.) HIGHWAYS (8 186*)—USE OF HIGHWAY-OFFENSES-EVIDENCE.

A conviction for the violation of Pen. Code JOHNSON v. STATE. (No. 3227.)

1911, art. 815, prohibiting the driving of an au

tomobile upon any public road at a greater (Court of Criminal Appeals of Texas. Oct. 14, speed than 18 miles per hour, must be reversed, 1914.)

where the evidence does not establish that the 1. CRIMINAL LAW ($ 1097*)-APPEAL-PRES- road where the automobile was run was a pubENTATION FOR REVIEW.

lic road. In the absence of a statement of facts, the [Ed. Note.-For other cases, see Highways, sufficiency of the evidence to sustain a verdict Cent. Dig. 88 476, 477; Dec. Dig. 8 186.*] of guilty cannot be considered on appeal.

(Ed. Note.-For other cases, see Criminal Appeal from Wichita County Court; C. B. Law, Cent. Dig. 88 2862, 2864, 2926, 2934, 2938, Felder, Judge. 2939, 2941, 2942, 2947; Dec. Dig. $ 1097.*] Reese Allen was convicted of operating an 2. CRIMINAL LAW (8 982*)-SUSPENSION OF automobile on a public road at a greater SENTENCE-VERDICT.

Where a verdict of guilty recited “that de- speed than 18 miles per hour, and he appeals. fendant has never before been convicted of a

Reversed and remanded. felony," but contained no recommendation for Carrigan, Montgomery & Britain, of Wichsuspension of sentence, the court could not sus-ita Falls, for appellant. T. R. Boone, Co. pend sentence.

[Ed. Note.--For other cases, see Criminal Atty., of Wichita Falls, and C. E. Lane, Law,, Cent. Dig. $82500, 2501; Dec. Dig. 8 Asst. Atty. Gen., for the State. 982.] Appeal from District Court, Collin Coun

PRENDERGAST, P. J. Appellant was ty; M. H. Garnett, Judge.

convicted for operating an automobile on a Lou Johnson was convicted of selling in- public road in said county at a greater rate toxicating liquors in prohibition territory, of speed than 18 miles per hour. The statand appeals. Affirmed.

ute is, no automobile shall be driven or op

erated 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.

1911, art. 815. PRENDERGAST, P. J. Appellant was con There are but two questions necessary victed for unlawfully pursuing the occupa-| to be passed upon. The first: Appellant tion or business of selling intoxicating liq. claimed the evidence was insufficient to idenuors in prohibition territory, and her pun- tify him as the party who operated the maishment fixed at the lowest prescribed by chine at the time and upon which this proselaw.

Icution was based. We have read the evi.

dence carefully, and, in our opinion, the evi-, 5. CRIMINAL LAW ($ 1099*)—APPEAL_STATE dence was amply sufficient to show this.

MENT OF FACTS—TIME OF FILING. The other question is: Appellant claims heard on motions for new trial will not be con

Statements of facts showing the evidence that there was no proof showing that the sidered on appeal unless filed within term time. road upon which the automobile was run was [Ed. Note.-For other cases, see Criminal a public road. As stated, we have carefully Law, Cent. Dig. $82866–2880'; Dec. Dig. 8

1099.*] read the evidence. In our opinion, the evidence is insufficient to show that it was a Appeal from Taylor County Court; E. M. public road. Judge White, in section 796 Overshiner, Judge. of his Penal Code, correctly states how a Henry Ethridge was convicted of slander, road can be shown to be a public road, and and he appeals Affirmed. cites the cases.

Ben L. Cox, of Abilene, for appellant. O. Because the evidence does not establish E. Lane, Asst. Atty. Gen., for the State. that the automobile was operated upon a public road, this case must be reversed and PRENDERGAST, P. J. Appellant appeals remanded.

from a conviction of slander. We have care fully read and considered the statement of

facts and record in this case more than once. ETHRIDGE v. STATE. (No. 3232.) The evidence amply sustains the verdict. (Court of Criminal Appeals of Texas. Oct. 14,

Appellant contends, and presents the ques1914.)

tion in various ways, that the evidence did 1. CRIMINAL LAW (8 721*) – TRIAL- ARGU: not establish that the slanderous language MENT OF COUNSEL.

used by him was with reference to the young In a prosecution for slander, where accus- girl it was alleged it was used about. It is ed did not take the stand in his own behalf, ar- unnecessary to detail the evidence. No useful gument of counsel referring to accused's failure to place on the stand his particular friend, purpose could be subserved by doing so. who was present when the alleged slander was There can be no question from the evidence uttered and was also present at trial, is not ob- but that the language used was about the jectionable as a reference to accused's failure to testify himself, though it was stated in the young girl and no other. The court's charge last of the argument that it was not denied required the jury to so believe before they accused uttered the slander.

could convict. [Ed. Note.-For other cases, see Criminal [1] The uncontradicted evidence shows Law, Cent. Dig. $ 1672; Dec. Dig. $ 721.*]

that the slanderous language was used by ap2. LABEL AND SLANDER (8 159*) CRIMINAL pellant in the presence and hearing of six PROSECUTION-EVIDENCE-SLANDER." persons. The state introduced three of these,

In a prosecution for a violation of Pen. who testified positively to its use. AppelCode 1911, art. 1180, declaring that if any person shall falsely and maliciously or falsely and lant introduced another one of these witnesswantonly impute unchastity to any female, he es, who testified about other matters, but apshall be guilty of slander, where the complaint pellant did not have him testify on this suband information were in the words of the statute, the refusal of a requested special charge ject. The other two of these witnesses were that, unless accused made the statements alleged not introduced by either side. The record wantonly and falsely, he should be acquitted clearly indicates that these witnesses, or is properly refused; for he was guilty if he John Reed, one of them, especially, was falsely and maliciously made them.

[Ed. Note.--For other cases, see Libel and friendly and favorable to appellant, and Slander, Cent. Dig. § 444; Dec. Dig. $ 159.* present at the trial. By one of his bills of

For other definitions, see Words and Phrases, exceptions he complains that the attorney First and Second Series, Slander.]

specially employed in behalf of the state used 3. CRIMINAL LAW ($ 1099*)-APPEAL-STATE- this language in his argument to the jury: MENT OF FACTS.

"John Reed was present down there on the Where the attorneys failed to agree upon road that night where the defendant uttered a statement of facts, and the county judge, in these false and malicious words against this preparing the statements, made a complete young lady. John Reed is here in attendance statement of the facts in evidence on the main upon this court, and the defendant has not trial and then made a separate statement of the seen fit to put John Reed on the witness stand facts of the evidence heard on the motion for to deny that he made the statement, and it has new trial, which was placed after the principal not been denied that the defendant said it." statement, there was no error.

Appellant claims that this statement was [Ed. Note.-For other cases, see Criminal an allusion to the fact that the appellant Law, Cent. Dig. 88 2866–2880'; Dec. Dig. & himself did not testify, and claims that it is 1099.*]

reversible error. He asked no written charge 4. CRIMINAL LAW (8 1144*) - APPEAL – PRE- of the court that the jury should disregard

Unless the statement of facts contains the it. In our opinion, it is not a reference to evidence presented by accused in support of his the appellant's failure to testify, and it does motion for new trial, it will on appeal be pre- not present error. Link v. State, 164 S. W. sumed that the lower court correctly ruled in 993, and cases therein cited; Gatlin v. State, denying the motion.

163 S. W. 428, and cases therein cited. It [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. 88 2736-2764, 2766-2771, 2774 | is needless to collate and cite the many cases 2781, 2901, 3016–3037; Dec. Dig. $ 1144.*] to the same effect. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

SUMPTIONS.

[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 re

Before you can convict the defendant you quire discussion. In Graham v. State, 163 must find beyond a reasonable doubt that he s. W. 730, we cited some of the cases, holdmade the statements alleged in the complaint, and that they referred to said girl, and that

ing: they were falsely and wantonly made, and, un “Statements of facts, showing the evidence less you so find, you will acquit him.

heard on motions for new trial, under the uniIt will be seen by this that this special to be considered by this court, must be filed

form and an unbroken line of decisions, in order charge would have submitted only that said within term time, and, unless so filed, it canstatements were falsely and wantonly made not be considered. Black_v. State, 41 Tex. Cr. and to acquit him if they were not, leaving R. 135, 53 S. W. 116; Reinhard v. State, 52

Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. out entirely the other element that they were State, 55 Tex. Cr. R. 551, 117 S. W. 833; Mifalsely and maliciously made. The court did kel v. State, 43 Tex. Cr. R. 617, 68 S. W. 512; not err in refusing to give this special Williams v. State, 56 Tex. Cr. R. 225, 120 s. charge. It has always been held by this w. 421 ; Probest v. State, 60 Tex. Cr.'R. 609,

133 S. W. 263; Tarletonv. State, 62 S. W. court that, if the special charge requested in 748; Knight v. State (64 Tex. Cr. R. 541), 144 a misdemeanor case is not correct as appli- S.W. 977; Bailey v. State, 144 S. W. 1005. cable to the case, the court must refuse it. See, also, Jordan v. State, 10 Tex. 502; Sharp This charge would have erroneously told v. State, 6 Tex. App. 658.” the jury to acquit appellant, unless he false.

The record in this case shows no reversly 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, THETFORD et al. v. STATE. (No. 3237—39.) 23 Tex. App. 448, 5 S. W. 135; Hobbs v. State, 7 Tex. App. 118; Perkins v. State, 144 (Court of Criminal Appeals of Texas. Oct. 14,

1914.) S. W. 245; Mealer v. State, 145 S. W. 354.

Bail ( 94*)—BAIL BONDS-FORFEITURE. It is unnecessary to cite the many other cas

The statute having provided that proceedes so holding.

ings forfeit bail bonds shall be placed on the [3] By appellant's only other bill he com. civil docket and governed by the rules governing plains that the court committed reversible other civil actions, a party appealing from a

judgment of forfeiture must file briefs in the error by making up in the statement of facts lower court and in the Court of Criminal Apon the main trial also a statement of facts peals as in civil actions; hence an appeal from of the evidence introduced on the hearing of such judgment must be dismissed where no the motion for new trial. The attorneys fail.

briefs were filed. ed to agree upon a statement of facts. The Dig. $$ 418-423; Dec. Dig. $ 94.*]

(Ed. Note.-For other cases, see Bail, Cent. duty therefore devolved upon the county judge. He made and certified to a complete

Appeal from District Court, Denton Counstatement of facts of the evidence on the ty; C. F. Spencer, Judge. main trial. Following that, but entirely sep

Proceeding by the State of Texas against arate and distinct, he also made a statement J. B. Thetford and others for the forfeiture of facts of the evidence heard on the motion of bail bonds. From several judgments forfor new trial and certified to that; the cer-feiting the several bonds, the defendants aptificate to each being entirely separate and

peal. Appeals dismissed. distinct. This, of course, presents no error. C. E. Lane, Asst. Atty. Gen., for the State.

[4, 5] The only other question necessary to be considered is appellant's complaint that PRENDERGAST, P. J. These three cases the court should have granted his motion are by the same appellants and present exfor new trial, because of newly discovered actly the same question. The judgment apevidence. He attached the affidavits of cer- pealed from in each case is a final judgment tain persons of what he claims to be newly on a forfeited bail bond. Our statute exdiscovered evidence which he claims they pressly provides that such cases shall be would testify. The state contested this mo- placed on the civil docket and the proceedtion. The record, without question, shows, ings shall be governed by the same rules which was proper, that the court, in consid- governing other civil actions. ering that motion, heard evidence thereon. 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

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