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2. SAME.

that the value of the property may be looked In a suit by a carrier to recover freight

to to determine the jurisdiction of the court, charges, where the petition also seeks to recov

and the case at bar is not one on a contract er the possession of the property for the transportation of which the charges are due, and

lien." which was wrongfully taken from it, the value The case of Lawson v. Lynch, 9 Tex. Civ. of the property to which the right of possession

App. 582, 29 S. W. 1128, is cited in support of is asserted, and not the amount of the freight

this contention. In that case the plaintiff charges, determines the jurisdiction of the trial court.

asserted a landlord's lien upon the crop of his [Ed. Note.-For cases in point, see vol. 13, tenant. The suit was brought in the justice Cent. Dig. Courts, $ 415.)

court, the amount of the indebtedness claimAppeal from Liberty County Court; M. D.

ed being less than $200. A distress warrant Rayburn, Judge.

was sued out and levied upon corn and cotAction by the Texas & New Orleans Rail

ton the value of which exceeded $200. In road Company against C. T. Rucker. From

discussing the question of whether the dea judgment of dismissal, plaintiff appeals.

fendant's plea to the jurisdiction should have Reversed.

been sustained, Justice Williams, speaking See 87 S. W. 818.

for this court, refers to the cases above cited,

and distinguishes them from the case under Baker, Botts, Parker & Garwood and Step- consideration. While the opinion does state ens & Pickett, for appellant. Marshall & that the rule that the value of the property Dabney, for appellee.

upon which the lien is claimed determines

the jurisdiction of the court had only been PLEASANTS, J. Appellant brought this applied in cases in which the lien asserted suit in the county court of Liberty county to was created by contract or act of the parties recover the sum of $55.50 alleged to be due as the decision of the case is not based upon freight charges for the transportation over that ground, but upon the provisions of the its railway of 18 head of steers belonging to statute directing the manner of the enforceappellee, and to foreclose a carrier's lien on ment of the landlord's lien. The following said steers for the amount of the freight quotation from the opinion shows upon what charges. Appellee demurred to the petition ground the decision was based: "In each of on the ground that it shows upon its face the cases mentioned the lien was created by that the lien sought to be enforced was only contract or act of the parties upon specific a common-law carrier's lien, and therefore chattels. The lien of the landlord is by law the amount of the debt claimed, and not the given generally upon the crops of the tenant value of the property upon which the lien and upon property furnished him by the was asserted, was the amount in controversy, landlord, but is a charge upon no more of and, this amount being less than $200, the such property than is necessary to pay the court was without jurisdiction to try the

debt. The distress warrant issues to seize The court sustained the demurrer and the property of the defendant or so much dismissed the suit; hence this appeal. The thereof as will satisfy the demand.' If the affidavit for sequestration filed with the orig- case is within the jurisdiction of the justice inal petition alleges the value of the steers of the peace, the sheriff is to be directed to to be $300.

return the writ to that court; otherwise it is It is a well-settled general rule of decision to be returned to the court having jurisdicin this state that in a suit to enforce a lien tion of the amount in controversy. Rev. St. upon personal property the value of the prop- 1895, art. 3246 [3118). Here the amount in erty upon which the lien is asserted, and not controversy necessarily means the debt sued the amount of the debt claimed, determines for, because the justice of the peace issuing the jurisdiction of the court. Marshall v. the writ could only be governed by the Taylor, 7 Tex. 233; Smith v. Giles, 65 Tex. amount sued for in giving the proper direc341; Cotulla v. Goggan, 77 Tex, 32, 13 S. W. tions as to its return, as he could not deter742; Real Estate Co. v. Bahn, 87 Tex. 583, mine in advance the value of the property 29 S. W. 646, 30 S. W. 430; Lane v. Howard, which would be levied on. The plaintiff in 22 Tex. 7.

suing out the writ is not required to state the Appellee's contention is thus stated in his value of the property subject to the lien. So first counter proposition to appellant's as- that, while the landlord may charge any and signments of error: “The court did not err all of the crops of the tenant with his lien, in sustaining defendant's exceptions to the ju- the judgment in his favor can reach and aprisdiction of the county court, because plain- propriate to its payment only so much as is tiff having sued for $55.50 and to foreclose necessary to satisfy the debt sued for and an alleged lien, to wit, a carrier's common- found to be due, and can therefore only affect law lien, which arises by implication of law, the property to that extent. If the court has on certain cattle alleged to be of the value of jurisdiction to adjudge the debt, it can see to $900, the amount or matter in controversy its satisfaction out of the crops as well as it that governed the jurisdiction was $35.50, can provide for the enforcement of its judgand not the value of the property which it is ments by attachment or execution. If jurissought to charge with the payment of the diction exists over the cause of action assert$55.50. It is only in cases of contract liens ed, it cannot be defeated by the accident that

case.

the sheriff, after the institution of the suit, below, the exception to the petition for want levies upon property of greater value than of jurisdiction should have been overruled. the debt."

If appellant was not entitled to have the We think it clear that this case does not lien foreclosed and the property sold in satissustain appellee's contention that the rule faction thereof, it was clearly entitled to reabove mentioned only applies when the lien gain possession of the steers, and hold them is created by contract.

until the freight charges were paid, and its Of the remaining cases cited by appellee in petition asks this relief. In a suit of this support of his proposition the cases of Dazey character the value of the property to which v. Pennington, 10 Tex. Civ. App. 326, 31 S. the right of possession is asserted necessariW. 312, Irvin v. Bexar County, 63 S. W. 550, ly determines the question of jurisdiction. 2 Tex. Ct. Rep. 862, and Yeiser v. Taylor The judgment of the court below is re(Tex. Civ. App.) 31 S. W. 84, are cases in versed, and the cause remanded for trial. which a landlord's lien was sought to be en- Reversed and remanded. forced; and the case of Allen v. Glover, 65 S. W. 379, 3 Tex. Ct. Rep. 420, is one in which a farm laborer's lien was asserted. All of these cases follow the rule announced in

ST. LOUIS, S. F. & T. RY. CO. v. SHAW. Lawson v. Lynch, and the decision in each of (Court of Civil Appeals of Texas. May 24, them was controlled by the provision of the

1905.) statute which only authorizes so much of the EMINENT DOMAIN RAILROADS-NOISE AND crop to be seized and sold as might be neces

SMOKE OF TRAINS-DAMAGES TO PROPERTY

OWNER. sary to satisfy the debt sued for.

A property owner may recover damages The case of Smith v. Giles, supra, settles for personal annoyance and inconvenience sufthe question we are considering adversely to

fered by her and her family on account of the appellee. Plaintiff in that case sued to fore

noise, smoke, and vibration caused by the op

eration of a railway near her residence, though close a laborer's lien under article 3180 of

her property was not damaged, and no neglithe Revised Statutes of 1895, and our Su- gence was shown in the operation of the depreme Court held that the value of the boat

fendant's trains or in the use of its property. upon which the lien was claimed determined

[Ed. Note.–For cases in point, see vol. 18, the jurisdiction of the court.

Cent. Dig. Eminent Domain, $8 278–281.] The carrier's lien at common law was

Appeal from District Court, Grayson Counmerely a right to hold the property until the

ty; B. L. Jones, Judge. freight charges were paid. Jones on Liens,

Action by Libbie Shaw against the St. vol. 1, p. 7. But our statute has enlarged

Louis, San Francisco & Texas Railway Comthis right by authorizing the carrier to sell pany. From a judgment in favor of plainthe property if it is not claimed within a cer

tiff, defendant appeals. Affirmed. tain time. Rev. St. 1895, arts. 327, 328, 330. C. H. Yoakum and Head, Dillard & Head,

The petition in this case alleges that ap- for appellant. pellee bad refused to pay the charges due for the transportation of the steers, and had with- FISHER, C. J. Appellee's petition against out the knowledge or consent of appellant the railway company substantially alleges taken them from its possession. Appellant that she was on the 1st day of January, had the right to refuse to deliver the prop- 1901, and now is, the owner of certain lots erty until the charges were paid, and if such described in the petition, situated in the payment was not made within 48 hours after city of Denison, upon which she had a twothe steers arrived at their destination it story residence building of nine rooms, which could, under the articles of the statute before at the time alleged, and long prior thereto, cited, have sold them, and applied the pro- was occupied as a residence for herself and ceeds to the payment of the freight charges. family, in which she conducted a boarding Appellee having wrongfully taken the proper- house; that on or about the 1st day of April, ty from appellant's possession, and thus pre. 1901, defendant built and constructed its vented it from pursuing its statutory remedy, main line of railroad, about 100 feet west It could resort to the courts for the enforce- of plaintiff's property, and across Main street, ment of its rights.

in the city of Denison, and about 100 feet The common-law lien is upon the whole of from and opposite plaintiff's property defendthe property, and these statutes authorize ant built and constructed a freight depot and the sale of all of the property upon which the five switch tracks, and since that date, botb charges are due, and do not, as the landlord's day and night, is continuously engaged and lien statute, restrict the right of sale to so is now engaged in the operation of engines much of the property as may be necessary to and cars over its main line and switches, repay the charges. Such being the character ceiving and discharging freight from its cars of the lien sought to be enforced by appel- into its depot, and delivering freight to shiplant, the value of the property upon which pers and consignees from depot to wagons the lien was asserted determines the juris- and drays, trucking freight over its plank diction of the court, and, that value being an floors at said depot and sheds thereat, and amount within the jurisdiction of the court will continue to so operate engines and cars and truck freight in the future; that the ment on the issue found by the jury in apdepot is constantly surrounded by a great pellee's favor. number of wagons and drays, hauling freight The appellant in its assignments of errors therefrom, which creates constant flying contends that the verdict and judgment is cloud of dust, and a large portion of which erroneous on the issue found in favor of apsettles on, in, and about plaintiff's residence pellee, for the reason (1) that the damages and premises; that defendant's cars, road sustained by reason of the personal annoyengines, and switch engines are, and since ance and inconvenience suffered by the plainthe construction of its road have been, dur- tiff and her family, on account of the noise, ing all hours of the day and night, operated smoke, vibrations, etc., caused by the opon and over its line of road and switch eration of the railway near her residence, tracks, making up trains and switching cars could not be recovered unless there had also on its said tracks; that loud and disagreea- been a finding for the plaintiff to the effect ble noises are made by defendant during all that her property was damaged; (2) that as hours of the day and night in the operation the evidence showed that the railway comof its cars and engines, as follows: By ring- pany was not guilty of negligence in the ing the bell and blowing the whistles upon, operation and movement of its trains, enand popping and escaping of steam from, gines, etc., and in the use of its property, its engines, the bumping of cars together, plaintiff could not recover, although she sufloud yelling, talking, cursing, and swearing fered annoyance and inconvenience in the by defendant's employés engaged in the op- manner complained of. We regard these eration of said engines, which said disagree-questions, together with others raised in apable noises are constantly and distinctly pellant's brief, as settled against appellant's heard by plaintiff and all others at her said contention. Daniel v. Railway Co., 96 Tex. residence, and throughout all parts thereof, 327, 72 S. W. 578; M., K. & T. Ry. Co. v. and by which plaintiff, her children and Anderson (Tex. Civ. App.) 81 S. W. 782, boarders, were constantly annoyed and har- 788. assed during the daytime, and kept awake, We find no error in the record, and the causing them loss of sleep and rest at night; judgment is affirmed. that in the operation of defendant's engines Affirmed. upon its said line of railroad and switches there is constantly emitted from said engines sparks, cinders, and coal smoke in

88 S.W.452

INCE v. STATE. large quantities, which is carried by the wind on and into and through plaintiff's residence, (Supreme Court of Arkansas, June 17, 1905. and upon her furniture, drapery, carpets,

On Rehearing, July 15, 1905.) etc., therein, and thereby causing noxious 1. HOMICIDE MOTIVE INSTRUCTIONSand offensive and unhealthy odors and vapors

INVASION OF PROVINCE OF JURY. to suddenly permeate all parts of the prem

An instruction, on a trial for homicide,

that the failure to show a motive is a circumises; and that by reason of the noises, smoke,

stance in favor of defendant to be considered by cinders, dust, dirt, odors, etc., plaintiff's res- the jury, is properly refused as invading the idence has been rendered almost uninhabita- province of the jury. ble, and plaintiff has been thereby constant

(Ed. Note.—For cases in point, see vol. 14,

Cent, Dig. Criminal Law, $ 1790.) ly and greatly annoyed and discomforted in the use and enjoyment of her home, and

2. TRIAL-CONDUCT OF COURT-REMARKS TO

JURY-ERROR-CRIMINAL LAW. will in the future be so annoyed by the

On a trial for homicide the jury returned operation by defendant of its cars, and by a verdict of guilty, but demanded an investigareason thereof has sustained actual damages

tion into defendant's sanity. The court inin the sum of $2,000. Plaintiff further al

formed the jury that it would not be proper to

attach any condition to the verdict, and in case leges that the damages sustained to her of conviction defendant could not be executed property was $2,000.

until after a specified time, and it would be Subdivision 1 of the charge of the trial

supposed that his attorney would look after

his interest. The jury retired, and returned a court submits to the jury the issue as to the

verdict of guilty. Held, that the remarks of annoyance and inconvenience and damage the court did not constitute reversible error, sustained by plaintiff from the noises, dust, especially as the court, on defendant's exception cinders, smoke, and odors alleged in the pe

to the language, withdrew it, and instructed

that the verdict should be on the evidence alone. tition that affected the plaintiff's use and en

3. SAME-EXCEPTION TO ADMISSION OF Evijoyment of her residence. Other provisions DENCE-MOTION FOR NEW TRIAL-NECESSIof the charge also submit to the jury the question as to the depreciation in the value

An exception to the admission of evidence

on a trial for crime, not brought forward in the of plaintiff's property by reason of the facts

motion for a new trial, will not be considered alleged. The jury in their verdict only found on appeal. for plaintiff on the issue submitted in para- [Ed. Note.--For cases in point, see vol. 15, graph 1 of the charge, and found in favor of Cent. Dig. Criminal Law, 88 2676-2679.) the railway company as to the other issue 4. SAME — SEPARATION OF JURY-SUBJECTING and damages submitted.

JURORS TO IMPROPER INFLUENCE-BURDEN

OF PROOF. We find that there is evidence in the record

That a juror, during the selection of a which tends to support the verdict and judg. jury in a homicide' case, left the jury box, and

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occupied for a short time a seat among the audience, was not sufficient to cast on the state the burden of proving that he was not exposed to improper influence to defeat a reversal of a verdict of guilty.

[Ed._Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, $ 3098.) 5. SAME-GROUND FOR REVERSAL.

A juror, during the progress of selecting a jury for a homicide case, left the jury box, and for a while sat among the audience. It was not shown that he was subjected to any improper influence. Held, that the court did not err in refusing to set aside the verdict of conviction on the ground of the separation of the jury.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 2039-2045.) 6. SAME-INSANITY OF ACCUSED-MOTION TO STAY SENTENCE.

A motion in arrest of judgment, on conviction of crime, on the ground of present insanity of defendant, should be treated as a motion to stay sentence.

(Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, 88 2497, 2498.] 7. SAME-PLEA OF ISSUE OF INSANITY AT TIME OF TRIAL OR SENTENCE.

Under Kirby's Dig. § 2440, providing that a defendant may show against the judgment of conviction that he is insane, and, if the court is of the opinion that there is reasonable ground for believing that he is insane, the question of his sanity shall be determined by a jury, a verdict of guilty, notwithstanding the defense of insanity, does not bar a plea of insanity at the time of trial or at the time of sentence, and the verdict of guilty is conclusive only of defendant's sanity at the time of the commission of the crime.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, 88 2497, 2498, 2555.) 8. SAME-INSANITY AT TIME OF TRIAL OB SENTENCE-EVIDENCE.

On a trial for murder, the evidence on the issue of defendant's sanity at the time of the commission of the offense was conflicting. The jury first returned a verdict of guilty, but demanded an investigation by experts into defendant's condition. On the court refusing to accept the verdict, the jury returned a verdict of guilty. Held to show sufficient grounds for believing that defendant was insane at time of trial or sentence, requiring the court to impanel a jury to inquire into his condition, as provided by Kirby's Dig. $ 2440.

On Rehearing. 9. CRIMINAL LAW-REMARKS OF JUDGE-VERDICT.

On a trial for homicide the jury returned a verdict of guilty, but demanded an investigation into defendant's sanity. The court informed the jury that it would not be proper to attach any condition to the verdict, and in case of conviction defendant could not be executed until after a specified time, and it would be supposed that his attorney would look after his interests. The jury retired and returned a verdict of guilty. There was evidence tending to support the plea of insanity. Held to justify the setting aside of the verdict.

Hill, C. J., dissents.

three children. Counsel was appointed by the court to conduct his defense, and a plea of insanity was interposed. The fact that he committed the homicide is not disputed, and the proof discloses a most shocking deed. According to defendant's confession, he arose at an early hour in the morning and with an as killed his wife and their three small children, the youngest being an infant in the arms of the mother. The particular phase of insanity with which the defendant is claimed by his counsel to be afflicted is homicidal mania, which is defined to be a deranged condition of mind whereby there is an irresistible impulse to commit homicide. It is proved that the defendant's father is so amicted and is now confined in an insane asylum in another state. A great deal of other testimony was introduced, pro and con, as to the mental condition of the defendant at the time of the homicide. The court refused to give the following instruction asked on behalf of the defendant, and such refusal is assigned as error: "(3) While in case of homicide the jury may properly consider the motive which prompted the act itself, or the want of motive, if no motive be shown it is a circumstance in favor of the defendant's innocence, to be considered by the jury." The jury, after deliberating several hours, returned into court with the following verdict: “We, the jury, find the defendant guilty of murder in the first degree, but demand that a thorough investigation by experts be made into defendant's sanity--sixty days' limit." The court refused to accept this verdict, and said to the jury: “Gentlemen, the verdict is not in usual or proper form. It will not be proper to attach any condition or limitations to the verdict. In case of conviction, the defendant cannot be executed for more than 30 days, and the supposition is that defendant's attorneys will look after his interest in all proper ways." Counsel for defendant excepted to this language, and the court thereupon said further to the jury: "Gentlemen, upon reflection, I desire to withdraw what I said in regard to defendant's attorney looking after defendant's interest. It would be improper for me to say anything to you that could be construed as an inducement or argument for you to find the defendant either guilty or innocent, and I do not mean to do

Your verdict should be upon the facts and evidence before you now, and with no reference to any step that may or may not be taken in the case hereafter; and your verdict must not contain any conditions.” The jury then retired, and in a short time returned a verdict of guilty as charged in the indictment. Before sentence was pronounced on the defendant, his counsel filed and presented to the court a motion in arrest of judgment, setting forth as grounds “that the defendant is now insane." The court overruled this motion, and sentenced the defendant in accordance with the verdict.

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Appeal from Circuit Court, Yell County; William L. Moose, Judge.

James W. Ince was convicted of murder in the first degree, and he appeals. Reversed.

The defendant, James W. Ince, was indicted, tried, and convicted of the crime of murder in the first degree by killing his wife and

ir ) 3. Appellant's "motion in arrest of judg

Sam T. Poe, Tom D. Patton, and Priddy & their fellow jurors during the progress of the Chambers, for appellant. Robt. L. Rogers, trial, but we think that the testimony intro Atty. Gen., for the State.

duced on the hearing of the motion for new

trial shows that these jurors were not subMcCULLOCH, J. (after stating the jected to any improper influences. One of facts). 1. Counsel urge that the court erred the jurors is shown to have left the jury box in refusing the third instruction asked by de- during the progress of selecting the jury (aftfendant, that, “if no motive be shown, it is er he had been accepted as a juror) and oca circumstance in favor of the defendant's cupied for a short while a seat among the innocence, to be considered by the jury." In audience. This was before the completion of criminal prosecutions it is competent to in- the jury and presentation of the case, and it troduce testimony of facts and circumstan- is not shown that this juror was subjected ces tending to show a motive or absence of to any improper influence. The separation motive for the commission of the crime by of the juror at that time and under those cirthe accused, as tending, with more or less cumstances was not suficient to cast upon force, to establish his guilt or innocence. It the state the burden of showing that he was is not improper for the court to instruct the not exposed to improper influence. This ocjury that they may consider such testimony curred in the presence of the court and for that purpose.

But this should be done whilst the jury was being selected, and we in connection with all other facts and cir- cannot say that he erred in his conclusion cumstances proved, and it is not proper for that the rights of the defendant had not the court in the instructions to single out the been prejudiced by this indiscretion on the proof of motive or absence of motive and tell

. the jury that they may consider that as a circumstance in favor of his guilt or innocence. ment on the ground of present insanity did Especially is this true where the language of not state statutory grounds for arrest of the instruction is not guarded by a further | Judgment, but should have been treated as instruction in the same connection that the a motion to stay sentence, and, as such, the jury are the exclusive judges of the weight court erred in overruling it. The statute and sufficiency of such testimony. To have reads as follows: "He may also show that given the instruction in the form asked the he is insane. If the court is of opinion that court would have placed an undue weight there is reasonable ground for believing he upon the proof of absence of motive, thus in- | is insane, the question of his insanity sball vading the province of the jury. It would be determined by a jury of twelve qualified have been error for the court to single out jurors, to be summoned and impanelled as the question of motive for the crime and directed by the court. If the jury do not ind point to it as a proper subject of considera- him insane, judgment shall be pronounced. tion as an evidence of defendant's guilt, and If they find him insane, he must be kept in it would have been equally erroneous and im- confinement, either in the county jail or luproper to point to the want of motive as an natic asylum, until, in the opinion of the evidence of his innocence. We find no error court, he becomes sane, when judgment shall in this ruling of the court.

be pronounced.” Kirby's Dig. $ 2440. The Nor do we find any prejudicial error in the fact that a plea of insanity has been interremarks of the court to the jury in declin- posed as a defense to the crime charged in ing to accept the conditional verdict offered. the indictment and a verdict of guilty returnThe learned judge should have contented ed does not bar a plea of insanity at the time himself with declining to accept the imper- of the trial or at the time of sentence. Eifect verdict, without any remarks or refer- ther plea may be offered after trial and verence to the course which the defendant's dict. The verdict of the jury was conclusive counsel could take in the future; but we only of his sanity at the time of the commisthink that there is nothing in his remarks sion of the homicide. State v. Helm, 69 Ark. calculated to prejudice the rights of the de- 167, 61 S. W. 915; Linton v. State, 72 Ark. fendant before the jury. Especially is this 532, 81 S. W. 608. true in view of his remarks to the jury a few Upon suggestion of the insanity of appelminutes later.

lant, and reasonable grounds appearing for 2. Counsel press, as grounds for reversal, believing him to be insane, the court should other alleged errors of the court, some of have impaneled a jury to inquire into his conwhich were not preserved in the motion for dition. The testimony as to the mental connew trial. This is true of the exception to dition of appellant at the time the homicide the testimony introduced by the state show- was committed was conflicting, though none ing, as a motive for the crime, the ill will of the testimony was directed to his condiof defendant towards his wife's father. It tion at the time of the trial and verdict. is urged that this was too remote to serve The jury, by the verdict first brought into as a motive, but the exception to this ruling court, demanding that an “investigation by of the court is not brought forward in the experts be made into defendant's condition," motion for new trial.

demonstrated that after hearing all the evIt is contended that certain members of idence they had some misgirings as to his the trial jury were allowed to separate from sanity, though a short time later they said

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