2. SAME.

In a suit by a carrier to recover freight charges, where the petition also seeks to recover the possession of the property for the transportation of which the charges are due, and which was wrongfully taken from it, the value of the property to which the right of possession is asserted, and not the amount of the freight charges, determines the jurisdiction of the trial court.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 415.]

Appeal from Liberty County Court; M. D. Rayburn, Judge.

Action by the Texas & New Orleans Railroad Company against C. T. Rucker. From a judgment of dismissal, plaintiff appeals. Reversed.

See 87 S. W. 818.

Baker, Botts, Parker & Garwood and Stevens & Pickett, for appellant. Marshall & Dabney, for appellee.

PLEASANTS, J. Appellant brought this suit in the county court of Liberty county to recover the sum of $55.50 alleged to be due as freight charges for the transportation over its railway of 18 head of steers belonging to appellee, and to foreclose a carrier's lien on said steers for the amount of the freight charges. Appellee demurred to the petition on the ground that it shows upon its face that the lien sought to be enforced was only a common-law carrier's lien, and therefore the amount of the debt claimed, and not the value of the property upon which the lien was asserted, was the amount in controversy, and, this amount being less than $200, the court was without jurisdiction to try the case. The court sustained the demurrer and dismissed the suit; hence this appeal. The affidavit for sequestration filed with the original petition alleges the value of the steers to be $900.

It is a well-settled general rule of decision in this state that in a suit to enforce a lien upon personal property the value of the property upon which the lien is asserted, and not the amount of the debt claimed, determines the jurisdiction of the court. Marshall v. Taylor, 7 Tex. 235; Smith v. Giles, 65 Tex. 341; Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742; Real Estate Co. v. Bahn, 87 Tex. 583, 29 S. W. 646, 30 S. W. 430; Lane v. Howard, 22 Tex. 7.

that the value of the property may be looked to to determine the jurisdiction of the court, and the case at bar is not one on a contract lien."

The case of Lawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1128, is cited in support of this contention. In that case the plaintiff asserted a landlord's lien upon the crop of his tenant. The suit was brought in the justice court, the amount of the indebtedness claimed being less than $200. A distress warrant was sued out and levied upon corn and cotton the value of which exceeded $200. In discussing the question of whether the defendant's plea to the jurisdiction should have been sustained, Justice Williams, speaking for this court, refers to the cases above cited, and distinguishes them from the case under consideration. While the opinion does state that the rule that the value of the property upon which the lien is claimed determines the jurisdiction of the court had only been applied in cases in which the lien asserted was created by contract or act of the parties the decision of the case is not based upon that ground, but upon the provisions of the statute directing the manner of the enforcement of the landlord's lien. The following quotation from the opinion shows upon what ground the decision was based: "In each of the cases mentioned the lien was created by contract or act of the parties upon specific chattels. The lien of the landlord is by law given generally upon the crops of the tenant and upon property furnished him by the landlord, but is a charge upon no more of such property than is necessary to pay the debt. The distress warrant issues 'to seize the property of the defendant or so much thereof as will satisfy the demand.' If the case is within the jurisdiction of the justice of the peace, the sheriff is to be directed to return the writ to that court; otherwise it is to be returned to the court having jurisdiction of the amount in controversy. Rev. St. 1895, art. 3246 [3118]. Here the amount in controversy necessarily means the debt sued for, because the justice of the peace issuing the writ could only be governed by the amount sued for in giving the proper directions as to its return, as he could not determine in advance the value of the property which would be levied on. The plaintiff in suing out the writ is not required to state the value of the property subject to the lien. So that, while the landlord may charge any and all of the crops of the tenant with his lien, the judgment in his favor can reach and ap

tiff having sued for $55.50 and to foreclose an alleged lien, to wit, a carrier's commonlaw lien, which arises by implication of law, on certain cattle alleged to be of the value of $900, the amount or matter in controversy that governed the jurisdiction was $55.50, and not the value of the property which it is sought to charge with the payment of the $55.50. It is only in cases of contract liens

necessary to satisfy the debt sued for and found to be due, and can therefore only affect the property to that extent. If the court has jurisdiction to adjudge the debt, it can see to its satisfaction out of the crops as well as it can provide for the enforcement of its judgments by attachment or execution. If jurisdiction exists over the cause of action asserted, it cannot be defeated by the accident that

the sheriff, after the institution of the suit, levies upon property of greater value than the debt."

We think it clear that this case does not sustain appellee's contention that the rule above mentioned only applies when the lien is created by contract.

Of the remaining cases cited by appellee in support of his proposition the cases of Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312, Irvin v. Bexar County, 63 S. W. 550, 2 Tex. Ct. Rep. 862, and Yeiser v. Taylor (Tex. Civ. App.) 31 S. W. 84, are cases in which a landlord's lien was sought to be enforced; 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 Lawson v. Lynch, and the decision in each of them was controlled by the provision of the statute which only authorizes so much of the crop to be seized and sold as might be necessary to satisfy the debt sued for.

The case of Smith v. Giles, supra, settles the question we are considering adversely to appellee. Plaintiff in that case sued to foreclose a laborer's lien under article 3180 of the Revised Statutes of 1895, and our Supreme Court held that the value of the boat upon which the lien was claimed determined the jurisdiction of the court.

The carrier's lien at common law was merely a right to hold the property until the freight charges were paid. Jones on Liens, vol. 1, p. 7. But our statute has enlarged this right by authorizing the carrier to sell the property if it is not claimed within a certain time. Rev. St. 1895, arts. 327, 328, 330.

The petition in this case alleges that appellee had refused to pay the charges due for the transportation of the steers, and had without the knowledge or consent of appellant taken them from its possession. Appellant had the right to refuse to deliver the property until the charges were paid, and if such payment was not made within 48 hours after the steers arrived at their destination it could, under the articles of the statute before cited, have sold them, and applied the proceeds to the payment of the freight charges. Appellee having wrongfully taken the property from appellant's possession, and thus prevented it from pursuing its statutory remedy, it could resort to the courts for the enforcement of its rights.

The common-law lien is upon the whole of the property, and these statutes authorize the sale of all of the property upon which the charges are due, and do not, as the landlord's lien statute, restrict the right of sale to so much of the property as may be necessary to pay the charges. Such being the character of the lien sought to be enforced by appellant, the value of the property upon which the lien was asserted determines the jurisdiction of the court, and, that value being an amount within the jurisdiction of the court 88 S.W.-52

below, the exception to the petition for want of jurisdiction should have been overruled. If appellant was not entitled to have the lien foreclosed and the property sold in satisfaction thereof, it was clearly entitled to regain possession of the steers, and hold them until the freight charges were paid, and its petition asks this relief. In a suit of this character the value of the property to which the right of possession is asserted necessarily determines the question of jurisdiction.

The judgment of the court below is reversed, and the cause remanded for trial. Reversed and remanded.

ST. LOUIS, S. F. & T. RY. CO. v. SHAW. (Court of Civil Appeals of Texas. May 24, 1905.)

EMINENT DOMAIN · RAILROADS-NOISE AND SMOKE OF TRAINS-DAMAGES TO PROPERTY OWNER.

A property owner may recover damages for personal annoyance and inconvenience suffered by her and her family on account of the noise, smoke, and vibration caused by the operation of a railway near her residence, though her property was not damaged, and no negligence was shown in the operation of the defendant's trains or in the use of its property.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 278-281.]

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by Libbie Shaw against the St. Louis, San Francisco & Texas Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

C. H. Yoakum and Head, Dillard & Head, for appellant.

FISHER, C. J. Appellee's petition against the railway company substantially alleges that she was on the 1st day of January, 1901, and now is, the owner of certain lots described in the petition, situated in the city of Denison, upon which she had a twostory residence building of nine rooms, which at the time alleged, and long prior thereto, was occupied as a residence for herself and family, in which she conducted a boarding house; that on or about the 1st day of April, 1901, defendant built and constructed its main line of railroad, about 100 feet west of plaintiff's property, and across Main street, in the city of Denison, and about 100 feet from and opposite plaintiff's property defendant built and constructed a freight depot and five switch tracks, and since that date, both day and night, is continuously engaged and is now engaged in the operation of engines and cars over its main line and switches, receiving and discharging freight from its cars into its depot, and delivering freight to shippers and consignees from depot to wagons and drays, trucking freight over its plank floors at said depot and sheds thereat, and will continue to so operate engines and cars

and truck freight in the future; that the depot is constantly surrounded by a great number of wagons and drays, hauling freight therefrom, which creates constant flying cloud of dust, and a large portion of which settles on, in, and about plaintiff's residence and premises; that defendant's cars, road engines, and switch engines are, and since the construction of its road have been, during all hours of the day and night, operated on and over its line of road and switch tracks, making up trains and switching cars on its said tracks; that loud and disagreeable noises are made by defendant during all hours of the day and night in the operation of its cars and engines, as follows: By ringing the bell and blowing the whistles upon, and popping and escaping of steam from, its engines, the bumping of cars together, loud yelling, talking, cursing, and swearing by defendant's employés engaged in the operation of said engines, which said disagreeable noises are constantly and distinctly heard by plaintiff and all others at her said residence, and throughout all parts thereof, and by which plaintiff, her children and boarders, were constantly annoyed and harassed during the daytime, and kept awake, causing them loss of sleep and rest at night; that in the operation of defendant's engines upon its said line of railroad and switches there is constantly emitted from said engines sparks, cinders, and coal smoke in large quantities, which is carried by the wind on and into and through plaintiff's residence, and upon her furniture, drapery, carpets, etc., therein, and thereby causing noxious and offensive and unhealthy odors and vapors to suddenly permeate all parts of the premises; and that by reason of the noises, smoke, cinders, dust, dirt, odors, etc., plaintiff's residence has been rendered almost uninhabitable, and plaintiff has been thereby constantly and greatly annoyed and discomforted in the use and enjoyment of her home, and will in the future be so annoyed by the operation by defendant of its cars, and by reason thereof has sustained actual damages in the sum of $2,000. Plaintiff further alleges that the damages sustained to her property was $2,000.

Subdivision 1 of the charge of the trial court submits to the jury the issue as to the annoyance and inconvenience and damage sustained by plaintiff from the noises, dust, cinders, smoke, and odors alleged in the petition that affected the plaintiff's use and enjoyment of her residence. Other provisions of the charge also submit to the jury the question as to the depreciation in the value of plaintiff's property by reason of the facts alleged. The jury in their verdict only found for plaintiff on the issue submitted in paragraph 1 of the charge, and found in favor of the railway company as to the other issue and damages submitted.

We find that there is evidence in the record which tends to support the verdict and judg

ment on the issue found by the jury in appellee's favor.

The appellant in its assignments of errors contends that the verdict and judgment is erroneous on the issue found in favor of appellee, for the reason (1) that the damages sustained by reason of the personal annoyance and inconvenience suffered by the plaintiff and her family, on account of the noise, smoke, vibrations, etc., caused by the operation of the railway near her residence, could not be recovered unless there had also been a finding for the plaintiff to the effect that her property was damaged; (2) that as the evidence showed that the railway company was not guilty of negligence in the operation and movement of its trains, engines, etc., and in the use of its property, plaintiff could not recover, although she suffered annoyance and inconvenience in the manner complained of. We regard these questions, together with others raised in appellant's brief, as settled against appellant's contention. Daniel v. Railway Co., 96 Tex. 327, 72 S. W. 578; M., K. & T. Ry. Co. v. Anderson (Tex. Civ. App.) 81 S. W. 782, 788.

We find no error in the record, and the judgment is affirmed. Affirmed.

INCE v. STATE.

(Supreme Court of Arkansas, June 17, 1905. On Rehearing, July 15, 1905.)

MOTIVE

INSTRUCTIONS

1. HOMICIDE
INVASION OF PROVINCE OF JURY.

An instruction, on a trial for homicide, that the failure to show a motive is a circumstance in favor of defendant to be considered by the jury, is properly refused as invading the province of the jury.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1790.]

2. TRIAL CONDUCT OF COURT-REMARKS TO JURY-ERROR-CRIMINAL LAW.

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 interest. The jury retired, and returned a verdict of guilty. Held, that the remarks of the court did not constitute reversible error, especially as the court, on defendant's exception to the language, withdrew it, and instructed that the verdict should be on the evidence alone. 3. SAME-EXCEPTION TO ADMISSION OF EVIDENCE-MOTION FOR NEW TRIAL-NECESSI

TY.

An exception to the admission of evidence on a trial for crime, not brought forward in the motion for a new trial, will not be considered on appeal.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2676-2679.]

4. SAME - SEPARATION OF JURY-SUBJECTING JURORS TO IMPROPER INFLUENCE-Burden OF PROOF.

That a juror, during the selection of a jury in a homicide case, left the jury box, and

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, §§ 2039-2015.]

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, §§ 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, §§ 2497, 2498, 2555.] 8. SAME-INSANITY AT TIME OF TRIAL OR 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-Ver

DICT.

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.

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

The

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 ax 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 afflicted 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. 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 So. 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.

Sam T. Poe, Tom D. Patton, and Priddy & Chambers, for appellant. Robt. L. Rogers, Atty. Gen., for the State.

MCCULLOCH, J. (after stating the facts). 1. Counsel urge that the court erred in refusing the third instruction asked by defendant, that, "if no motive be shown, it is a circumstance in favor of the defendant's innocence, to be considered by the jury." In criminal prosecutions it is competent to introduce testimony of facts and circumstances tending to show a motive or absence of motive for the commission of the crime by the accused, as tending, with more or less force, to establish his guilt or innocence. It is not improper for the court to instruct the jury that they may consider such testimony for that purpose. But this should be done in connection with all other facts and circumstances proved, and it is not proper for the court in the instructions to single out 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. Especially is this true where the language of the instruction is not guarded by a further instruction in the same connection that the jury are the exclusive judges of the weight and sufficiency of such testimony. To have given the instruction in the form asked the court would have placed an undue weight upon the proof of absence of motive, thus invading the province of the jury. It would have been error for the court to single out the question of motive for the crime and point to it as a proper subject of consideration as an evidence of defendant's guilt, and it would have been equally erroneous and improper to point to the want of motive as an evidence of his innocence. We find no error in this ruling of the court.

Nor do we find any prejudicial error in the remarks of the court to the jury in declining to accept the conditional verdict offered. The learned judge should have contented himself with declining to accept the imperfect verdict, without any remarks or reference to the course which the defendant's counsel could take in the future; but we think that there is nothing in his remarks calculated to prejudice the rights of the defendant before the jury. Especially is this true in view of his remarks to the jury a few minutes later.

2. Counsel press, as grounds for reversal, other alleged errors of the court, some of which were not preserved in the motion for new trial. This is true of the exception to the testimony introduced by the state showing, as a motive for the crime, the ill will of defendant towards his wife's father. It is urged that this was too remote to serve as a motive, but the exception to this ruling of the court is not brought forward in the motion for new trial.

It is contended that certain members of the trial jury were allowed to separate from

their fellow jurors during the progress of the trial, but we think that the testimony introduced on the hearing of the motion for new trial shows that these jurors were not subjected to any improper influences. One of the jurors is shown to have left the jury box during the progress of selecting the jury (after he had been accepted as a juror) and occupied for a short while a seat among the audience. This was before the completion of the jury and presentation of the case, and it is not shown that this juror was subjected to any improper influence. The separation of the juror at that time and under those circumstances was not sufficient to cast upon the state the burden of showing that he was not exposed to improper influence. This occurred in the presence of the court and whilst the jury was being selected, and we cannot say that he erred in his conclusion that the rights of the defendant had not been prejudiced by this indiscretion on the part of the juror.

3. Appellant's motion in arrest of judgment on the ground of present insanity did not state statutory grounds for arrest of judgment, but should have been treated as a motion to stay sentence, and, as such, the court erred in overruling it. The statute reads as follows: "He may also show that he is insane. If the court is of opinion that there is reasonable ground for believing he is insane, the question of his insanity shall be determined by a jury of twelve qualified Jurors, to be summoned and impanelled as directed by the court. If the jury do not find him insane, judgment shall be pronounced. If they find him insane, he must be kept in confinement, either in the county jail or lunatic asylum, until, in the opinion of the court, he becomes sane, when judgment shall be pronounced." Kirby's Dig. § 2440. The fact that a plea of insanity has been interposed as a defense to the crime charged in the indictment and a verdict of guilty returned does not bar a plea of insanity at the time of the trial or at the time of sentence. Either plea may be offered after trial and verdict. The verdict of the jury was conclusive only of his sanity at the time of the commission of the homicide. State v. Helm, 69 Ark. 167, 61 S. W. 915; Linton v. State, 72 Ark. 532, 81 S. W. 608.

Upon suggestion of the insanity of appellant, and reasonable grounds appearing for believing him to be insane, the court should have impaneled a jury to inquire into his condition. The testimony as to the mental condition of appellant at the time the homicide was committed was conflicting, though none of the testimony was directed to his condition at the time of the trial and verdict. The jury, by the verdict first brought into court, demanding that an "investigation by experts be made into defendant's condition,” demonstrated that after hearing all the evidence they had some misgivings as to his sanity, though a short time later they said