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fault against him. The cause was dismissed vis in Little Rock about the fee, and he rebefore trial as to W. B. Worthen and Geo. lates the substance of the interview with R. Brown. Appellants Davis and Ward an- Davis as follows: "I remember when I saw swered, denying specifically each allegation Mr. Davis he put me off by saying he would of the complaint. A trial by jury was had have to see Mr. Worthen; that they had some upon the issues raised by their answer, matters to fix up; and said for me to see which resulted in a verdict in favor of the Worthen. I told him I needed the money. plaintiffs for $2,000, and they appealed to He said, 'Well, you will get your fee; you this court.

need not be uneasy about it.' He said: 'We Appellants asked a peremptory instruction have got to have a little straightening upto the jury to return a verdict in their favor, the Wards and Worthen--and I don't know and they now urge that the verdict against whether we ought to pay it or he. Wait and them is without testimony to support it. In see him.'” It is further shown that after testing the sufficiency of the evidence we the trial of the Harr suit a bill of exceptions must give it the strongest probative force was filed preparatory to appeal to this court, of which it is susceptible in favor of the but the appeal was not perfected, and Davis verdict of the jury.

and the other trustees of the Zeb Ward The suit in which the services of appellees estate paid the fees of the stenographerwere performed was against a railroad cor- something over $200 for services in the trial poration and R. W. Worthen, its principal and in making a transcript of the testimony. stockholder and manager. He employed ap- Some time during the period mentioned--the pellees as attorneys to defend the suit, and precise date not appearing—the railroad comit is not claimed that either of appellants pany was, in a suit instituted by the bondhad anything to do with the employment of holders in the federal court, placed in the attorneys, or that any mention was ever hands of receivers, and Davis and W. B. made to them, until after the termination of Worthen were appointed receivers. This is the suit, that they would be expected to pay all the evidence throwing any light upon the any part of the fee. Appellants each owned connection of appellants with the Harr suit stock of the face value of $100 in the railroad or the employment of appellees as attorneys. corporation, but which was of no value at Is there sufficient to warrant a finding that the time of the pendency of the suit in ques- either of the appellants expressly or impliedtion, as the corporation was then insolvent. ly undertook to pay any part of the fee due They were directors in the corporation, and appellees for services? We think not. It is this stock was given to them by R. W. admitted that neither of appellants made Worthen, who owned substantially all the any contract with appellees, and that appelstock, to qualify them as directors. They lees had been employed by Mr. Worthen, the were also trustees of the estate of Zeb Ward, manager of the railroad corporation, before deceased, which estate held a large amount the pendency of the suit was brought to the of bonds issued by the railroad company. attention of appellants. It is not contended Appellant Zeb Ward, Jr., and the wife of ap- that they ever did more than to manifest pellant Davis were two of the five heirs of such interest as was consistent with their Zeb Warel, deceased. Col. Trimble and Mr. duties as directors in the railroad corporaLankford, of appellees, both testified that tion and as trustees of the Zeb Ward estate. they were employed by R. W. Worthen in They had a right to display that much con1893 to defend the suit, and that some time cern in the suit without impliedly making between that time and the trial of the case themselves personally liable for the fees of in 1896 they consulted with Davis, in Little the attorneys who had already been .emRock, concerning the suit; that Davis mani. ployed by one in authority to conduct the fested considerable interest in the suit, and defense of the suit for the railroad company. attended the trial. They say that he was Learned counsel for appellees contend that sworn as a witness in the case, and claimed appellants were interested in the result of the privilege, as a party in interest, of ex- the suit, and knew of the services being emption from the rule of the court excluding performed by appellees, and that this fact the witnesses from the courtroom during the is sufficient to bring the case within the rule trial. Neither of them testify, however, that that, where an attorney performs services he employed them in the suit, or agreed, be- for another with his consent, and there is fore the trial, to pay the fee, or that any- no agreement for compensation, the law thing was said about the fee or employment. will imply a contract to pay what the service Col. Trimble testified that some time after is reasonably worth. This is a familiar printhe trial he approached Davis about pay- ciple, and has been repeatedly applied by this ment of the fee, and the latter declined to court. Ford v. Ward, 26 Ark. 360; Hogg v. pay it, but said that the attorneys ought to Laster, 56 Ark. 382; 19 S. W. 975; Lewis v. have something, and that he (Davis) was Lewis' Estate (Ark.) 87 S. W. 134. It does going to get together Worthen and others, not, however, always follow that because who were interested, and consult about it. one receives the benefit, directly or indirectMr. Lankford testified that a short while ly, of the services of another, the law implies after the trial he called to see appellant Da- a contract to pay therefor. Roselius v. Delachaise, 5 La. Ann. 481, 52 Am. Dec. 597; ed, and remanded for a new trial. It is so Rives v. Patty (Miss.) 20 South. 862, 60 Am. ordered. St. Rep. 510. Each case must stand upon its own peculiar facts. But the facts of this HILL, C. J., and WOOD, J., dissent. case lack the essentials for an application of this principle, for the reason that appel- HILL C. J. (dissenting). S. L. Harr lants were not parties to the suit, and ap- brought suit for about $77,000 against the pellees were employed by another. If appel- Mississippi & Little Rock Railway Company lants bad, by their course of conduct, in- and R. W. Worthen, its president. Worthen duced appellees to render the service, or if employed McClintock & Lankford, a firm of they had been parties to the suit, and re- lawyers, to defend the suit, and later Trimble mained silent and accepted the services of to assist them. The services were performappellees, even though employed by another, ed, and that the amount recovered is a reathe law would imply an agreement on their sonable fee is not disputed. The railway part to pay for the service. But, inasmuch company was hopelessly insolvent, a fact as they had already been employed to de- known to all parties in this litigation. Worfend the suit, appellants had the right to as- then was a large stockholder and bondhold. sume that a display of interest in the suit er, and his bonds were pledged to the Ward on their part would not be taken as an im- estate for borrowed money. Appellees have plied agreement to pay the fee; and, on the an unsatisfied judgment against him for their other hand, appellees, after having been pre- fees, and presumably he is insolvent. Shortviously employed by Worthen, the manager ly after the employment of these lawyers, of the railroad, to defend the suit brought they got into communication with Oscar Daagainst him and the railroad, had no right to vis, the appellant, who evinced much interassume from such display of interest by ap- est in the litigation. He was a nominal pellants that they would pay the fee. Ap- stockholder of the railroad company, and its pellants were acting in a representative ca- receiver. His wife was one of the heirs of pacity as directors of the railroad corpora- Ward, the principal creditor of the road, and tion, and had the right, and it becomes their he was a trustee of the Ward estate. He had duty, to manifest a degree of interest in the such conferences with the attorneys as any suit without incurring personal liability for client would have, and they looked to him to the fee. No intimation was given them dur- bring the necessary witnesses to the trial, ing the pendency of the suit that they would which he did, and pay the expenses thereof. be called upon to pay any part of the fees, He attended the trial, claimed the privilege and nothing was said or done, so far as ap- of staying in court as a party in interest pears from the testimony, to call for a dis- instead of being excluded as a mere witness. claimer of any willingness to become respon- He paid part of the expenses of the trial, his sible for the fee. We see nothing whatever brother-in-law Ward paid the witnesses, and in their conduct from which an agreement Davis paid, after the trial, the stenographto pay for the services of the attorneys can er's fees for making the transcript. After be implied. It is not contended that appel- the trial he assured both Lankford and Trimlants are bound by the statements or assur- ble that their fees would be paid. The whole ances made by Davis to appellees after the course of proceedings indicated he was the trial concerning payment of the fee. There real client, and his interest would naturally was no consideration for a contract made at make him so, while the nominal parties were that time after the performance of the serv- the insolvent railroad and its bankrupt presi. ices for payment of the fee. Giving to the dent. Under these circumstances, where the evidence its fullest probative force in favor services were for the benefit of the party, of the cause of action of appellees, it fails and he knowingly accepts them, very slight entirely to establish any contract, either ex- evidence is required to raise an implied conpress or implied, on the part of appellants tract to pay for them. to employ appellees, or to pay them a fee The evidence which the jury credited on for services performed in the suit named. It all conflicting matters, was sufficient, in our proves neither a contract nor facts or circum- opinion, to raise an implied contract, and the stances from which one can be implied. judgment ought to be affirmed.

The verdict not being sustained by suficient evidence, the judgment must be revers- WOOD, J., concurs in this opinion,

a

ity, and, being answered in the negative, the FRANKS v. STATE.

court overruled said challenge for cause, and (Court of Criminal Appeals of Texas, March 1,

had said jury sworn. We do not think there 1905. On Rehearing, June 23, 1905.)

was any error in the ruling of the court. 1. JUBY-PREJUDICE OF JUROBS.

The mere fact that a juror has a prejudice Prejudice against the crime of murder does against the crime of murder would not disnot disqualify a juror on a prosecution for qualify him; nor can we see how it would homicide.

injure the rights of the defendant if he had 2. SAME.

a prejudice against the plea of insanity, Prejudice against the plea of insanity does not disqualify a juror on a prosecution for

when the defendant made no such plea. murder, when the defendant interposes no plea Complaint is made by appellant of the fol. of insanity in the case.

lowing charge given by the court at the reOn Rehearing.

quest of the county attorney: "If you find 3. HOMICIDE-COOLING TIME-EFFECT.

from the evidence that, prior to the shootWhere defendant and deceased had been ing, deceased, without defendant's consent, engaged in an altercation, and there was there- seized money that was defendant's property, by created in the mind of defendant such a or that defendant fairly and reasonably bedegree of anger or terror as to render him incapable of cool reflection, and there was

lieved was his property, and that deceased cessation of the difficulty, and the defendant refused to give up such money, and that thereafter renewed the difficulty and killed de- deceased and defendant had a difficulty over ceased with a pistol, and the renewal of the ditficulty was after sufficient cooling time, and

said money, then, if you believe that they for his reason to interpose so as to comprehend

separated, and that thereafter defendant fol. the consequences of the act about to be com- lowed deceased up the road, then, if you be mitted, the killing was not manslaughter. lieve that defendant, in following deceased, (Ed. Note.-For cases in point, see vol. 26,

did so, not for the purpose of renewing or Cent. Dig. Homicide, 88 62, 63.]

provoking a difficulty with deceased, but 4. SAME-SELF-DEFENSE.

with an honest intention to demand of deThe mere pursuit of a person with intent to bring on a difficulty does not deprive the

ceased the return of the money which depursuer of the right of self-defense, where, fendant honestly believed that deceased had after coming up to the pursued, the pursuer wrongfully taken from him, and the deceas does no act with intent and calculated to provoke the difficulty.

ed, in refusing to comply with such demand, (Ed. Note.-For cases in point, see vol. 26,

was about to make an unlawful attack upon Cent. Dig. Homicide, 88 146, 150.]

defendant with a knife, of such a nature as Brooks, J., dissenting in part.

to inspire defendant with the reasonable be

lief that he was in danger of serious bodily Appeal from District Court, Falls County;

injury or death from such attack, and that, Waller S. Baker, Special Judge.

acting on such belief, defendant fired the Wallace Franks was convicted of murder

fatal shot, he would be justified in so doing. in the second degree, and he appeals. Re

On the other hand, you are charged that, versed.

where the possession of personal property Tom Connally and Rice & Bartlett, for ap- has once been lost, the owner has no lawful pellant. Howard Martin, Asst. Atty. Gen., right to regain it by such means as result for the State.

in a homicide. So, in this case, if you be

lieve that prior to the shooting the deceased, BROOKS, J. Appellant was convicted of without the defendant's consent, seized monmurder in the second degree, the penalty as- ey that was defendant's property, or that sessed being confinement in the penitentiary defendant fairly and reasonably believed for a term of 25 years.

was his property, and that deceased refused The first bill of exceptions shows that, in to give up such money, and that defendant the formation of the jury, William Eggerton and deceased had a difficulty on account was summoned as a talesman, and after- thereof, and that after they separated you wards sat upon the trial. Upon his voir dire believe beyond a reasonable doubt that de examination he was asked whether he had fendant armed himself and followed deceasformed or expressed an opinion relative to ed up the road, and you further believe from the guilt or innocence of the defendant. He the evidence, beyond a reasonable doubt, answered that, at the time of the killing of that defendant so armed himself and folyoung Galloway by defendant, he said to the lowed deceased with the intention of renewperson who told him about it, “There goes ing or provoking a difficulty with deceased, another plea of insanity.” The juror fur- and that thereafter be shot and killed dether stated he had no prejudice against de- ceased, but if done upon express malice, as fendant, but, like all good citizens, he had a defined in the charge, he would be guilty of prejudice against the crime of murder. The murder in the first degree, and if upon imjuror in all other respects qualified. Where- plied malice, as defined, would be guilty of upon defendant at this time had exhausted murder in the second degree, and if done all of his peremptory challenges, and chal- upon the immediate influence of sudden paslenged said juror for cause. The court sion, aroused by an adequate cause, as dethereupon inquired of counsel whether the fined in the charge, he would be guilty of defense would involve the question of insan- manslaughter.” Appellant excepted to said

charge, because if defendant renewed the difficulty or provoked the same without the intention of doing serious bodily harm to deceased, and only for the purpose of demanding his money, he would be guilty of no offense, and because said charge, in effect, negatived defendant's right to resist an attack which imperiled his life or inspired him with a reasonable belief of suffering serious bodily injury at the hands of deceased if he provoked or renewed the difficulty, no matter what his purpose or object may have been in so doing. We do not think the charge is erroneous. The words "renew and provoke the difficulty," here used in the charge, are synonymous terms, and, as we understand the law, are an apt presentation of the same to the facts of this case. The substance of the evidence shows that appellant and deceased made a wager of a dollar each that appellant could not throw a certain anvil over his head. They placed the money in the hands of a bystander, and appellant picked up the anvil and threw it over his head. Deceased immediately grabbed all the money out of the bystander's hand. At least, appellant thought so; but the evidence rather indicates that one of the dollars fell upon the floor, and deceased did not get it. However, knowledge of this does not appear to have been brought home to appellant. Thereupon a heated controversy or colloquy ensued between appellant and deceased as to the possession of the money; appellant insisting that he had won the money fairly; deceased insisting that he had not, and re fusing to give it up. Appellant picked up a hammer, deceased drew his knife, and in this posture passed out of the blacksmith shop. Thereupon appellant picked up a piece of iron in a manner indicating he would throw it at deceased. The bystander stepped aside. However, appellant did not throw. Deceased and appellant continued to abuse each other. Appellant went off to his boarding house. Deceased and companion started home. Appellant secured a pistol, came back, hunted deceased, and, discovering that he had started home, ran after and followed him something like 250 yards; hallooing to deceased to stop, which he did. Appellant demanded the money of deceased, which he refused to give up. Appellant at this juncture drew his pistol, and deceased started to run. Appellant fired two bullets into his back as he ran off, and deceased fell, and died instantly. Appellant testified that deceased opened his knife and made a gesture or demonstration as though to stab him with it, and that he fired immediately upon this demonstration being made. Without repeating in detail, this is the substance of the testimony as gleaned from the record.

Appellant asked that the court give the jury the following instruction, which was refused, to wit: “If you believe from the evidence that, shortly before the killing, defendant had won a dollar from deceased,

which deceased refused to deliver, and which he suddenly snatched from the hands of the stakeholder, whereupon a quarrel ensued between deceased and defendant, and in which deceased drew a knife upon defendant and threatened to kill him, and immediately thereafter defendant went to where deceased was, and again demanded possession of said dollar, and deceased again refused to give it to defendant, but began to curse and abuse defendant and to make a demonstration upon defendant as though to draw a knife, and you believe that such facts, acts, and circumstances, taken together, did arouse in the mind of the defendant such a degree of anger, rage, resentment, or terror as to render his mind incapable of cool reflection, and while in such condition he shot and kilied the deceased, you are charged that he could not be convicted of any offense higher than the grade of manslaughter." We do not think this charge was called for by the facts, since the evidence does not show that immediately thereafter defendant went to where deceased was, but, on the contrary, the evidence shows that they separated, defendant going to his boarding house, where he secured his pistol, and some time thereafter followed deceased some distance up the road towards deceased's house, and there shot and killed him. Appellant also asked the court to charge on the right of appellant to kill deceased if deceased had robbed appellant. We do not think this charge should have been given, under the evidence.

Appellant also excepted to the following portion of the court's charge: “You are charged, in this connection, that if you believe from the evidence that prior to the homicide, if any, defendant, Franks, and deceased, Galloway, had been engaged in an altercation of words and threatening gestures, and that there was thereby created in the mind of the defendant, Franks, such a degree of anger, rage, sudden resentment, or terror as to render the defendant, Franks, incapable of cool reflection, and you find that there was a cessation of said difficulty, if any, and that thereafter defendant, Franks, renewed the difficulty, and killed deceased, Galloway. with said pistol, if he did, and you further find that such renewal of the said altercation, if any, was after sufficient cooling time from the original altercation, if any—that is, if there was sufficient time for such anger, rage, sudden resentment, or terror of the defendant, Franks, if any, to subside, and for his reason to interpose to such an extent as to comprehend the consequences of the act about to be committed, if any—then the homicide would not be manslaughter; and in passing upon this question the jury should consider all the facts." Appellant excepted to this charge on the ground “that it was not demanded by the facts in evidence; that there was only a few moments between what the court termed the first and second difficulties, the facts showing that the same

was one continuous difficulty or trouble, ing time is not a matter of law, but a without cessation in fact; and because said matter of fact,” but very improperly, as we charge fails to give a definition of "cooling take it, after a careful review of the authoritime," and left the jury without a rule in ties, held that the charge given by the court reference thereto; and because upon the was erroneous, and further erred in holding subject of cooling time said charge did not “that it is not so much a question of time in require the jury to find as a fact that de- which the mind may become cool and sedate, fendant's mind had in fact become cooled to

as it is one of the actual conditions of the such an extent as to comprehend the con

mind at the time the homicide occurred." sequences of his act; but the court instruct- It is further stated "that the law has not ed the jury, as a matter of law, that if suffi- undertaken to prescribe the time in which cient time bad elapsed for such anger, rage,

the mind may become cool, passing from a sudden resentment, or terror to subside, and disturbed or enraged condition, nor can it for reason to interpose to such an extent

well do so. It must depend upon testimony, as to enable him to comprehend the conse

not law.” It is further stated that, "if at quences of the act about to be committed, the time of the homicide the mind of the then the homicide would not be manslaugh- slayer be cool and deliberate, his crime ter; thus withdrawing the issue of man- would be murder in the first degree. If, on slaughter from the jury, and in effect direct- the other hand, it was aroused to sudden pas. ing the jury to find against defendant on the sion, to the point of being beyond cool reflecissue of manslaughter, even if defendant's tion, brought about by an adequate cause, mind had not in fact cooled.” The evidence, the killing would usually be of no higher as stated above, shows that there had been grade than manslaughter. Whether the a previous difficulty. The parties separated, mind be cool or otherwise is a question of and some little time thereafter the difficul- fact, not of law, and relates to the actual ty was renewed. Clearly, this presents the condition of the mind, and not to his status issue of cooling time. We think the charge merely from a lapse of time.” This case is of the court is correct. It follows the charge supported by the Eanes and Halliburton approved by this court in Surrell v. State, Cases, supra, but neither of them, as we take 29 Tex. App. 321, 15 S. W. 816. However,

it, announces the correct proposition of law. appellant cites, to support his contention, the

We agree with said cases that cooling time cases of Jones v. State, 33 Tex. Cr. R. 492,

is a question of fact, but it is the time that 26 S. W. 1082, 47 Am. St. Rep. 46; Eanes v. is the fact to be ascertained, not the conState, 10 Tex. App. 421; Halliburton v. State, dition of the defendant's mind. If defend32 Tex. Cr. R. 51, 22 S. W. 48. In each of

ant's mind is the fact to be ascertained, then the last cases cited the issue of cooling time

cooling time has nothing to do with the was not, in law, involved, since the defense

question. Suppose a quarrel occurs between alleged in each was insult to a female relative.

A. and B.; a year passes, and A. meets B. The statute authorizes reduction of the homi- to-day and shoots and kills him. It is doubtcide to manslaughter in such case, regardless ful whether the issue of cooling time could of the length of time elapsing between the be in the case, or whether the issue of manact or information in reference to the in- slaughter could possibly be suggested by sult, if, as a matter of fact, the deceased's these facts alone. Then the only connection mind was not cool. Hence said issue of cool- between the previous difficulty and the final ing time is out of those cases. In Orman v. one is the fact that brings the issue of coolState, 24 Tex. App. 504, 6 S. W. 514, the de- ing time into the case. Then it becomes a fense of insult to a female relative was also question of fact as to how long a time, or involved. There Judge Wilson, delivering whether sufficient length of time for an ordithe opinion of the court, held that the issue nary man to cool, has elapsed. This is not of cooling time was not involved where the a question of law, but a question of fact. If defense is insult to a female relative. We sufficient time has elapsed between the first take it that a careful inspection of the stat- and second colloquy for a reasonable, rationute will demonstrate this fact, since the al creature to cool, then the law presumes Legislature, in the passage thereof, directly that he has cooled. He may not be cool, but laid down another basis than the ordinary he cannot insist upon manslaughter from causes for manslaughter. In Wadlington v. the fact that he has such a disordered mind State, 19 Tex. App. 266, it was held: "How- that it cannot cool in a reasonable time. ever great the provocation may have been, The law judges defendant by the rule of the if there be sufficient time for the passion to average human mind, and, if the average subside and for reason to intervene, the human mind would cool between the first homicide will be murder.” In this case the and second difficulty, then the jury are warproof shows that, after deceased was made ranted in the presumption that the defendto release hold of defendant, some two or ant has an average human mind, and that three minutes elapsed before defendant fired. therefore his mind had cooled. If the jury The court held that the issue of cooling time do not think that time has been suflicient should have been charged in connection with for his mind to cool, then he is entitled to. the issue of manslaughter. In Jones v. State, manslaughter; and, if it has, then he is not supra, the court very properly say "that cool- entitled to it

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