They were not.

A person who is held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence, by another person, in answer to inquiries made by an officer; 'and such statements, though not contradicted by him, are not admissible in evidence against him.'"

Appellant complains of the nineteenth paragraph of the court's charge as follows: "The jury are instructed, if they believe from the evidence beyond a reasonable doubt that at the time defendant was arrested several articles of personal property were found in possession of defendant in his dwelling house which belonged to R. E. Bristol, and which had been taken from his (R. E. Bristol's) home without his knowledge or consent, then the jury should consider the possession of such property belonging to R. E. Bristol by defendant, if he had any such property in his possession, only as a circumstance to be considered by them, along with all other facts and circumstances in the case, to determine whether defendant burglarized the house of R. E. Bristol, as charged in the indictment." As indicated above, the testimony upon which this charge was predicated was not admissible; but, if the thefts are contemporaneous, the charge would not be correct, because independent crimes contemporaneous are only admissible on the question of intent with which appellant acted in the case then on trial, and it cannot be shown as a circumstance showing he committed theft in the instance then on trial, but only to show the intent with which he acted in taking the property. Believing the other matters complained of will not arise upon another trial, they are not here discussed. For the errors discussed, the judgment is reversed. and the cause remanded.

MILLER v. STATE.1

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

1900.)

PERJURY-SECOND CONTINUANCE PROPERLY REFUSED MATERIALITY-COUNSEL'S ARGUMENT RESTRICTED TO EVIDENCE-INSTRUCTION REFUSED.

1. Where a statute prescribes certain requisites for a second application for a continuance in a criminal case, a second application which did not comply with the statute was properly overruled, though a first continuance had not been granted.

2. On a prosecution for perjury for falsely swearing that a credit was indorsed on a note given for land, evidence as to the ownership of the land by the payee at the time of a renewal of the note is irrelevant, in that it does not tend to prove that the credit was in fact indorsed as testified.

3. Where the court has excluded certain testimony, it is not error for the court to refuse to permit counsel to argue the materiality of the excluded evidence in the presence of the jury.

1 Appeal abated because of death of appellant February 6, 1901. GO S.W.-43

4. On a prosecution for perjury as to a credit on a note, a special charge that, if appellant was entitled to the credit, he should be acquitted of perjury, was properly refused, where he had testified that the credit was indorsed in writing on the note.

Appeal from district court, Guadalupe county; Munford Kennon, Judge.

D. J. Miller was convicted of perjury, and he appeals. Affirmed.

T. L. Johnston, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of perjury, and given four years in the penitentiary.

The court did not err in overruling application for continuance. It was the second, and failed to comply with the statute in setting out the requisites of a second application. Appellant's contention is that there can be no second application until a first has been granted. This is not correct.

E. S. Carpenter, witness for state, testified that he was the owner of the land for which the note was given by defendant in September, 1895. On cross-examination defendant proposed to prove that John Ireland, then deceased, had not in fact executed to him a deed of conveyance to the land which Ireland conveyed to appellant in December, 1889, and for which appellant executed to Ireland a note for $1,000, on the back of which was an indorsement of a credit of $600, dated March, 1890. The purpose of this testimony was to disprove an introductory averment in the indictment, inserted for the purpose of showing materiality, and which alleged that, if the testimony upon which perjury was predicated was true, defendant would have been entitled to a credit of the $600 upon the note given by defendant to witness. He further proposed to prove that witness had no deed or title of any kind to the land sold by Ireland to defendant. This evidence did not tend to prove the credit of $600 was or was not on the $1,000 note. The history of this transaction, briefly stated, is about as follows: In December, 1889, John Ireland sold appellant a small tract of land, for which appellant executed his note for $1,000. Ireland immediately placed appellant in possession of the land, and he resided upon it, so far as the record shows, until this conviction. Some time prior to the 1st of September, 1895, Ireland transferred to his son-in-law, Carpenter, a lot of property, including the note, for $1,000 executed by appellant to said Ireland. On the 1st of September Carpenter went to appellant's residence on said land, and demanded a renewal of the note. They spent some time making the calculations, and after allowing all credits claimed by appellant a new note was executed by appellant to Carpenter for $1,499, being the amount of purchase money and accrued interest due on said land. The note was transferred from one party to another until finally it became

the property of Dibrell & Mosheim, who instituted suit and recovered judgment for the amount of the note and accrued interest. On the trial of the civil suit, appellant testified there was a credit of $600, dated March, 1890, on the original $1,000 note. The $1,000 note was introduced in evidence, showing such credit indorsed upon it in writing. Upon this testimony appellant was indicted for perjury. All of the withesses familiar with the note testified that such credit in writing was not upon the note as late as 1898. How the fact that Ireland may or may not have executed to Carpenter a deed to the land could tend to show that the credit in writing of $600 was on said note of $1,000 on the 1st of September, 1895, is not readily comprehended. If it was placed there in March, 1890, as claim ed, he was entitled to that amount, as against the note of Carpenter, at the time he gave the new note to Carpenter. If Ireland executed a deed of conveyance to Carpenter, it could not have shown or tended to show that a $600 credit had been placed on the $1,000 note in March, 1890, any more than if Ireland had not executed such a deed. We find no error in this ruling of the court. The same may be said of the bill of exceptions with reference to the same character of testimony offered to be proved by Mosheim and Dibrell. Appellant's theory seems to be that if, as a fact, he was entitled to a credit of $600 in March, 1890, on the $1,000 note, and his statement to that effect was true, he would not be guilty of perjury in swearing that the credit was placed on the note in writing in March, 1890, although in fact it was not so written on the note. We are not prepared to concede the truth of this proposition. He swore the credit was on the note, in writing, when he obtained it from Carpenter, September 1, 1895. If it was not, he was guilty of perjury in swearing it was.

Bill of exceptions was also reserved to the action of the court in refusing to permit counsel to argue the materiality of this excluded testimony. We think the court was correct. The court has authority to restrict the argument to the testimony admitted.

A special charge was asked by appellant, and refused by the court, submitting his theory, that, if it was true that appellant was entitled to a credit of $600 on the note, he should be acquitted of perjury. The charge was properly refused. As presented to us by this record, we believe the judgment should be affirmed, and it is so ordered.

HUNT v. MATTHEWS et al. (Court of Civil Appeals of Texas. Jan. 11, 1901.)

HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-INNOCENT PURCHASER.

1. Land purchased by a husband with his wife's funds, for her benefit, under an agreement that it is to be her separate property, and that the deed shall be taken in her name, is

her separate property, and not community property, though the deed is taken in his name, and the purchase is made during the existence of the marital relation.

2. One who purchases land believing it to be community property of the vendor and his deceased wife, and having no notice that it is her separate property, and that her children claim title to it as her heirs, but knowing that the land was purchased while the wife was liv ing, is chargeable with notice that his vendor can only convey the legal title to one-half interest therein, and is therefore an innocent pur chaser to the extent of such interest only.

Appeal from district court, Matagorda county; Wells Thompson, Judge.

Trespass to try title by Richard D. Hunt, as next friend for John H. and J. G. Andrews, against John Matthews and others. From a judgment for defendants, plaintiff appeals. Reversed.

Linn, Mitchell & Austin, for appellant.

PLEASANTS, J. This is an action of trespass to try title brought by appellant, as the next friend of John H. and J. G. Andrews, the minor children of Bettie and J. G. Andrews, deceased, to recover for said minors a tract of 279 acres of land in Matagorda county. The petition is in the usual form of a petition in a suit of trespass to try title. The defendant Matthews answered by general demurrer, general denial, plea of not guilty, and plea of innocent purchaser for value. The defendants Tolson and Frazier, who are vendees of defendant Matthews of the land in controversy, filed the same answer as defendant Matthews, with the addition of pleas of improvements in good faith. The cause was tried by the court below without the intervention of a jury. and judgment was rendered in favor of defendants that plaintiff take nothing by the suit, and that defendants recover their costs, from which judgment this appeal is prosecuted.

The following is a succinct statement of the facts, as deduced from the record: J. G. Andrews and Pauline E. Hunt (who was generally known as Bettie Hunt) were married on the 7th day of May, 1879, and the minor plaintiffs in this suit are the children and sole heirs of the said Bettie Andrews, née Hunt, On the 6th day of December, 1881, J. G. Andrews, for a recited consideration of $1,450, conveyed to his wife, Bettie Andrews, a tract of 738 acres of land on the B. B. Pearce survey, in Wharton county, together with a stock of cattle, containing about 100 head. The said Andrews and wife in March, 1885, sold this land, together with a tract of 187 acres on the William Vess league, in Wharton county, for $3,000,-one-half cash, and the remainder to be paid on November 1, 1885. June 10, 1885, J. G. Andrews purchased from J. W. Clapp a tract of 479 acres in Matagorda county, 279 acres of which tract is the land in controversy. The amount paid for this land was $2,000,-$1,200 cash, and a note for $800 secured by vendor's lien on said land. The defendant Matthews was the agent of

On

Clapp in selling this land, and was also engaged in the mercantile business in Matagorda county, and Andrews bought goods from him and kept an account with him. When the cash payment was made for the Wharton county land, the draft for the money was sent to Matthews by Andrews' agent in Wharton county, and out of this draft Matthews remitted the cash payment of $1,200 on the Clapp land, and obtained the deed for same, and delivered it to Andrews. When the note given for the Wharton county land was paid, Andrews brought the money or draft to Matthews, who credited Andrews' account with the amount, and shortly thereafter paid the $800 note due on the Clapp land, and charged same up to Andrews' account. It was understood and agreed between Andrews and his wife that the Clapp land was purchased for her benefit, and she thought the deed had been taken in her name, and, when she found that such was not the case, complained to Andrews about it, and he promised her that he would have the deed changed. The $2,000 which was paid for the Clapp land was Mrs. Andrews' portion of the $3,000 received by Andrews from the sale of the lands in Wharton county, 738 acres of which was Mrs. Andrews' separate property, and the remaining 1872 acres was the separate property of Andrews; and it was agreed between Mrs. Andrews and her husband that she should have $2,000 of said proceeds, and that same should be invested in the Clapp land. Andrews never made the change in the deed as he promised, and the title remained in his name. Mrs. Andrews died in December, 1887, and J. G. Andrews died in October, 1899. The defendant Matthews purchased 279 acres of the Clapp 479-acre tract from J. G. Andrews in August, 1896, nearly nine years after the death of Bettie Andrews. Matthews was well acquainted with Andrews' family, and knew that he was married at the time the Clapp land was purchased. He also knew, when he purchased the land in controversy, that Mrs. Andrews was dead, and that the minor plaintiffs were her children; but he had no notice that the 479 acres of land was purchased for Mrs. Andrews, nor that the same was paid for with her separate funds. He paid $1,395.00 for the land, $500 or $600 of which was paid by crediting Andrews' account for the balance due thereon, and the remainder was paid partly in cash to Andrews, and partly to other creditors of Andrews on orders drawn by Andrews. At the time Matthews purchased the 279 acres of land Andrews offered to sell him the whole of the 479 acres, but Matthews declined to buy more than 279 acres. This 279 acres was described by metes and bounds, and was not an undivided portion of the whole tract. The 279 acres sold to Matthews was not at the time of said sale worth as much as the 200 of said tract retained by Andrews, and which, so far as this record shows, was never sold by him, and is now held by the minor plaintiffs. On

the 29th day of October, 1896, Matthews sold to the defendant Tolson 1392 acres of the 279-acre tract, for a consideration of $25 cash, and three notes, for $317.16 each, payable in one, two, and three years, respectively, and on same day sold the remaining 1392 acres of said tract to the defendant Frazier for the same amount and upon the same terms. At the time of the trial of this suit Tolson and Frazier had only paid $25 each on said land, and the notes given by them to Matthews were in his possession and were owned by him. This suit was filed on the 14th day of March, 1900, and was tried in the court below on the 18th day of June, 1900.

The learned trial judge, in his conclusions of fact and law filed herein, finds that the 479-acre tract of land purchased from Clapp by J. G. Andrews was the community property of said Andrews and his wife, Bettie, and that Andrews had a right to sell one-half of said tract after the death of his said wife; and, it being shown by the evidence in this case that the 279 acres of said 479-acre tract were not more than one-half in value of the whole tract, defendant Matthews acquired a good title thereto. We think there is no sufficient evidence in the record to support the finding that the land was community property. The uncontradicted evidence is that the land was purchased by Andrews with his wife's separate funds, and was purchased for her benefit, and with the understanding and agreement that it was to be Mrs. Andrews' separate property, and that the deed to same would be taken in her name. As against this evidence, the mere facts that the deed was taken in the husband's name, and that the land was purchased during the existence of the marital relation, are insufficient to sustain the conclusion that the land was community property.

The trial court further found as a fact that Matthews was an innocent purchaser of the land for value, without any knowledge of the facts which made said land the separate property of Mrs. Andrews. We think there is sufficient evidence in the record to support this finding, and we have adopted same as our conclusion of fact.

But the evidence further shows that Matthews had knowledge of the facts which made the land prima facie the community property of Andrews and his wife. He knew that Andrews was married, and that Mrs. Andrews was living at the time said land was purchased by Andrews, and that she was dead at the time he bought from Andrews, and that the minor plaintiffs were her children. Having knowledge of these facts, he is charged with knowledge of the fact that Andrews could only convey the legal title to one-half of the land purchased from him, and this was all that would have passed to Matthews had the land been community property. If in fact the land was community property, upon proper pleading and proof that the heirs of Mrs. Andrews had been compensated for their inter

est in the 279 acres by having received from their father his interest in the 200 acres, equity would decree the title to the whole of said 279 acres to be in said Matthews; but no such pleading was filed by the defendant in this case, and, as before found, the land was not in fact community property. Matthews having purchased the land with knowledge of facts which show prima facie that the minor plaintiffs owned a half interest in same, the fact that they owned all of said land, and that Matthews had no knowledge of the full extent of the interest owned by them, nor of the true character of the title of their mother, through whom they inherit, will not protect him in the purchase of such interest, as, under the facts in his knowledge, plaintiffs would be entitled to in the land. Plaintiffs owned the whole of this land. Appellee supposed that they owned one-half of it, and had no notice of their title to the whole, but purchased the land believing it to be community property, and knowing that, if it was, plaintiffs owned one-half of same. Under these facts, we think appellee was an innocent purchaser only to the extent of onehalf of the land purchased by him, and the trial court erred in rendering judgment in his favor for the whole. The judgment of the court below will be reversed, and here rendered for appellan for one-half of the land in controversy, and this cause will be remanded to the court below, with instructions to make an equitable partition of the land between the parties to this suit in accordance with the judgment here rendered. Reversed and rendered.

WATTS et ux. v. LIVELY. (Court of Civil Appeals of Texas. Jan. 24, 1901.)

PARENT AND CHILD-CUSTODY OF CHILD. The fact that the father's circumstances are such that his child will be less comfortably reared in his custody than in that of its grandparents, who are greatly attached to it, does not justify giving them the custody of the child, when there is no evidence that the father is unworthy of the trust.

Appeal from district court, Anderson county; A. D. Lipscomb, Judge.

Habeas corpus proceedings by C. C. Lively against J. R. and Amanda Watts. From a judgment for petitioner, defendants appeal. Affirmed.

case sustains the conclusions of fact filed by the trial court, which are as follows:

"Conclusions of Fact. The applicant is the father of the child, Floyd Lively, who is now an infant of less than two years of age. The purpose of the proceeding is to have the child, who is in the care and custody of its grandparents, the father and mother of the child's mother, restored to the custody of the applicant. The child's mother died in December, 1899, and at her death requested that her parents should rear the child. On the day following her death the grandmother carried the child from his father's home to her house, at the request of his father, the applicant, but with the understanding that the arrangement was to be only temporary. A few days later the applicant visited the child, and told its grandparents that he wanted them to rear it. They said they would not take it unless the applicant would give it over to their absolute control, and renounce all claim of right to control it. While the evidence is not entirely clear that the applicant expressly acceded to these terms, he at least acquiesced in them by leaving the child with the grandparents after these conditions were made. On a third visit, the applicant, being unsatisfied with the manner in which he was treated, said that he would take the child and have it reared where it would be permitted to have a proper regard for him. To this the grandfather answered that he would die before he would give it up, or that if the applicant got the child he would take it over his dead body. On one of the applicant's visits to his child there had been some disagreement between the grandfather and the applicant as to the care and control of the child's small property, inherited from its mother. A bitter feeling had sprung up between them, such as to render association of the father with the child at the house of the child's grandfather altogether out of the question, as such matters are ordinarily regarded, though the grandfather and grandmother testified that he could visit the child at their house at al time he desired. The grandparents ha given the child's mother what property she had. They are intensely attached to the child, and greatly desirous of retaining custody of it. They are people of good character, about 60 years of age, and both in good health, and in circumstances such as to make the child reasonably comfortable.

PLEASANTS, J. This is a habeas corpus proceeding instituted by the appellee to recover from the appellants the possession of Floyd Lively, the infant child of the appellee. The case was tried by the judge of the court below without a jury, and judgment rendered awarding the custody of the child to appellee, from which judgment appellants prosecute this appeal. The evidence in the

daughters at home, who are also attached to the child, and willing to give their services to its care and rearing. The applicant has no household, and is now logging for a sawmill, earning about an average of 75 cents per day. He is in such circumstances as to insure a reasonably good support and maintenance for the child. His two sisters each offer to take the child into their homes and rear him. There is nothing urged against the moral character of the persons concern

ed. Soon after applicant's third visit to his child he met the grandparents in Palestine, which is about seven miles from their home, and was called to the wagon, that he might see his child; and on its being placed in his arms he walked off with it, but surrendered it on an officer arresting him at the suggestion of the grandfather. The application was filed with the district judge soon after that occurrence, and in January, 1900. From all the evidence, I conclude that the child is situated with its grandparents, so that it is likely to be reared with more comfort than it would be if reared in the manner proposed by its father, but that the result of leaving it in the custody of its grandparents would be to deprive it wholly of the care and society of its one remaining parent."

Upon these facts the court below held that, it not being shown that the father was disqualified for the proper discharge of his parental duties, his paramount right to the custody of his child could not be disregarded, and the fact that the father's circumstances are such that the child would be less comfortably reared in his custody than in that of its grandparents does not overbalance the advantage which the law presumes the child would have from the association and care of its father. We think the facts in this case fail to show that the best interest of the child would be subserved by the severing of the sacred tie which binds the offspring to the father. As aptly said by the trial court, the issue as to what is for the best interest of the child is not determined by showing in whose custody it would likely be more comfortably reared. In order to overcome the presumption of law that the best interest of the child would be subserved by placing it in the custody of the father, who is responsible for its being, and who, under the laws of God and of man, is held responsible for its care and protection, it must plainly appear that he father is unworthy of the trust. State v. Deaton (Tex. Sup.) 54 S. W. 901. The evidence in this case fails to show that the appellee is in any way unworthy of the trust committed to him, and the judgment of the court below will be affirmed, and it is so ordered. Affirmed.

PACIFIC EXP. CO. et al. v. REDMAN. (Court of Civil Appeals of Texas. Jan. 10, 1901.)

EXPRESS COMPANIES-DELAY IN SHIPMENTSPECIAL DAMAGES-PRINCIPAL AND AGENT -NOTICE OF PRINCIPAL'S INTEREST-EVIDENCE-DIRECTING VERDICT.

1. Plaintiff sued to recover damages for pain and retarded recovery by reason of failure of defendant express companies to promptly deliver medicine purchased by her. The medicine was ordered by a relative of plaintiff, for whom she had worked, which facts were known to defendants' agent at the shipping point; but the package was directed to such relative, and, though defendants' agent

was

informed that the package contained medicine, he was not informed that it was for plaintiff. Held, that the evidence was insufficient to show notice to defendants of plaintiff's connection with and interest in the shipment, so as to warrant a finding of special damages in her favor. 2. Plaintiff being the principal for whom the medicine was purchased, it was not error to refuse to direct a verdict for defendants, since she was entitled to recover such damages as her agent could have recovered in a suit in

her own name.

3. Though defendants subsequent to the date of shipment were notified of plaintiff's interest therein, and the probable consequence of their failure to deliver, they were not responsible for special damages to plaintiff for their failure to thereafter promptly deliver the medicine.

Appeal from district court, Rush county; W. J. Graham, Judge.

Action by Lelia Redman against the Pacific Express Company and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Alexander & Thompson and N. B. Morris, for appellants. Turner & Hendricks, for appellee.

GILL, J. Appellee, a feme sole, instituted this suit to recover damages of appellants for their failure to make timely delivery of a package of medicine which had been stripped by express over appellants' lines for her use and benefit. A trial by jury resulted in a verdict and judgment in favor of appellee for the sum of $380.30, from which the two express companies (the Pacific Express Company and Wells-Fargo Express Company), defendants below, have appealed. The plaintiff, for cause of action, averred, in substance, that, being critically ill, she, upon the prescription of her physician, ordered to be shipped from Henderson, Tex., the package of medicine in question; that the order was sent by M. B. Pruitt, as her agent, and was shipped by express over defendants' lines by one Oscar Lacy; that the charges demanded were paid, and defendants, with full knowledge of her illness, and that the medicine was intended for her, negligently failed to transport and deliver same to her within a reasonable time; that, as a result of the delay and failure to get the medicine at the time when it ought to have arrived, she suffered great physical and mental pain, and her recovery was seriously retarded, for all of which she asked damages. Proper allegations were made to the effect that the medicine could not be procured at the town of Beckville, near which she lived, and could not sooner have been procured elsewhere. Defendants answered separately, cach answer embracing a general denial, alleging want of knowledge of plaintiff's illness or that the medicine was intended for her, and disclaimed any liability to her which might otherwise have resulted had they known of her illness and that she was the person for whom the package was intended. This is believed to be a suffi