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Leisch, the driver, testified that when he arrived at the intersection of these streets he saw a west-bound car approaching, and stopped to let it go by. At that time he was about 15 feet from the track, and the automobile extended about 7 feet beyond where he was sitting. When the west-bound car started, he looked west, but could only see about 100 feet in that direction, as there were some high weeds and branches of trees which obstructed his view. He then started his automobile, and saw the east-bound car approaching, about 100 or 125 feet away. At that time, he says his automobile was about 2 feet from the south rail of the east-bound The speed of the street car seemed to be about ordinary, but not excessive. When he got onto the tracks, and when his front wheels were in the center of the south track, his wife called his attention to a little colored boy running toward the car. He blew the horn and slowed up a little more, at which time he noticed he had miscalculated the speed of the car. At that time, he says the car was only 35 or 40 feet away. He then made every effort to get across, but the street car struck the automobile which he was driving.

There was other evidence as to the rate of speed the car was going, which was fixed by one witness as 20 miles or more per hour. There was also expert testimony offered by both plaintiff and defendant, as to the distance in which street cars could be stopped, going at certain rates of speed,

While plaintiff's physician, Dr. Wolter, was testifying as a witness for plaintiff, and describing her injuries, he stated that he found that plaintiff did not seem to have the full degree of intelligence that she ought to have. Defendant's counsel objected to this testimony, and moved that it be stricken out. The court overruled this objection, and the motion to strike out.

Defendant's motorman, testifying for defendant, stated that he was about 50 feet from the crossing, when he saw an automobile standing at the corner. He sounded his gong before that, and when he saw the automobile he sounded his gong again. He stated that the automobile stood still until he got within about 30 feet of the crossing, when the driver started his car, and he commenced sounding the gong and trying to stop the street car, but that when the automobile got in the center of the track, it stopped, and that he could not avoid striking it. He testified the street car was going at about 12 or 15 miles an hour, and that the automobile was 10 or 12 feet from the track when he first saw it, standing still. Other evidence was offered on the part of defendant, tending to corroborate the testimony of the motor

man.

Plaintiff recovered, and defendant appeals, urging a number of assignments of error as

grounds for reversal of this judgment. The first error assigned is the failure of the court to give the following instruction asked by the defendant:

"The court instructs the jury that although you may find and believe from the evidence that the car in question was running at a speed in excess of 15 miles per hour, yet if you further find and believe from the evidence that the automobile in which the plaintiff was riding was driven onto the track immediately in front of the car, and had the car been running at a speed of 15 miles or less, that said car could not have been stopped in time to have averted said collision, then plaintiff cannegligence which charges that the car in quesnot recover under or upon the assignment of tion was running at a speed in excess of fifteen miles per hour."

It is urged that the refusal of the court to give this instruction deprived the defendant of the right to have its defense, predicated on the theory of proximate cause, submitted to the jury. Among the instructions given on behalf of defendant was one that it was not the duty of the motorman to stop his car or to check its speed, until he saw, or by the exercise of ordinary care could have seen, that the driver of the automobile was about to go upon the track, or so near thereto as to be in point of collision. This was instruction No. 13.

The court also gave instruction No. 14, at the request of defendant, which was to the effect that if the jury found that the automobile was driven upon the track upon which the street car was approaching, and that by reason of a colored boy running in front of said machine it was stopped on the track, in front of the car, and that the collision was caused by reason of the boy running in front of the automobile, and not by reason of any negligence of the operatives of the car, then plaintiff could not recover.

These instructions were given at defendant's request, and embodied defendant's theory of proximate cause, or nonliability on its part.

[1, 2] We do not think there was error in refusing to give the instruction above set out, for the reason that it did not correctly declare the law. declare the law. Defendant relies largely upon the case of Jackson v. Railway, 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650, where it was held that a similar instruction should have been given. But it will be noted, in that case, that no instructions similar to those given for the defendant here were given for the defendant there; and also that the instruction above set out did not place any duty upon the defendant to stop, or attempt to stop, the street car, until after the automobile was driven upon the track. The duty of the motorman to attempt to stop the car, or slacken its speed, arose when it became ap

(232 S.W.)

parent that the driver of the automobile was car. If these allegations are true, then plainintending to go upon the track. Before defendant can complain of the action of the trial court in refusing to give a requested instruction it must submit a correct instruction.

[3] Defendant also contends that the court erred in giving plaintiff's instruction No. 2, for the reason that it submitted the question of the ability of the motorman to check the speed of the car and avoid injuring plaintiff, when it is conceded that the automobile was stopped upon the track, and was stationary at the time it was struck, when nothing short of absolutely stopping the car could have prevented the collision. However, it is not a conceded fact in this record that the automobile was stopped. Plaintiff testified that the automobile was not stopped, and did not stop until it was struck by the street car. Some of plaintiff's witnesses testified that the car was stopped, but she is not conclusively bound by such testimony, when her testimony is that the car did not stop. Therefore there is no merit in this contention.

tiff was oblivious to the danger. Defendant, therefore, in substance, alleges plaintiff's obliviousness in its answer, and if there was error in failing to allege obliviousness, it was cured by defendant's answer. Obliviousness was not a controverted issue. There was no reversible error in the giving of this instruction.

[7] Defendant makes the further point that the court erred in its action with respect to the admission of the testimony of the doctor that plaintiff did not seem to have the full degree of intelligence that she ought to have. The allegations of the petition with respect to plaintiff's injuries were that she suffered a fractured skull and concussion of the brain, and that as a result of said injuries her entire nervous system had been seriously and permanently deranged, her vision, memory, and hearing had been impaired, etc.

After the doctor had testified that he had seen plaintiff about three weeks prior to the date of the trial, and made an examination of her, at which time he found that all the contusions and bruises had cleared up, defendant's counsel then asked the following

anything objectively?" Defendant's counsel, after an answer had been given, insisted that the doctor state further, and the answer of the doctor as complained of was then given.

[4] Defendant makes the further objection to instruction No. 2, in that it permitted the jury to find that the occupants of the auto-question: "And, objectively, did you find mobile "were oblivious of the danger of the approaching street car." It is contended that it is undisputed that they were all cognizant of the approach of the car. The evidence shows that they were cognizant of the approach of the car, but it does not show conclusively that they realized the danger. One may be in such a position that he may see an approaching car, and yet be unable to know or realize the rate of speed at which it is approaching, and be in a dangerous situation without knowing it. Cihla v. United Railways Co. of St. Louis, 221 S. W. 427.

[5, 6] Defendant also complains because this instruction submitted the question of obliviousness to the jury, when the petition did not contain any averment that plaintiff was oblivious. This attack was not made upon the petition in the court below prior to verdict and judgment. Defendant's answer alleges that, whatever injuries plaintiff received were due to her own negligence in allowing and permitting herself to be driven onto the defendant's track without looking or listening, when by looking and listening she could have seen and heard the approaching

The facts of this case are unlike those in Fink v. United Railways Co. (Mo. App.) 219 S. W. 679, and Hall v. Coal & Coke Co., 260 Mo. 351, 168 S. W. 927, Ann. Cas. 1916C, 375, because here defendant's counsel asked this question, as stated, without, any limitations, and it was answered in the manner indicated. If this was error, it was invited by defendant's counsel, and it cannot complain.

We find no reversible error in this record.

Therefore the Commissioner recommends that the judgment be affirmed.

PER CURIAM. The foregoing opinion of NIPPER, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly affirmed.

ALLEN and BECKER, JJ., concur.
REYNOLDS, P. J., not sitting.

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in them; that they emptied one of the barrels and continued to pursue the hogs, and when about 30 steps from the barrels were halted

(Court of Criminal Appeals of Texas. June 24, by the sheriff and the state's witness Bain,

1921.)

a deputy sheriff; that he was searched and

1. Weapons 7-Not unlawful to carry brass the knuckles which he had found were in his knuckles found on highway.

One who found brass knuckles on highway and picked them up and was carrying them without any unlawful purpose was not guilty of

crime.

2. Weapons

possession; that he had previously exhibited them and intended to carry them home and had no intention of violating the law; that he had no connection with any still.

The witness Follie testified that he, in com

17(4)-Conviction for carrying pany with Betts, at the home of the latter,

brass knuckles sustained.

In a prosecution for unlawfully carrying brass knuckles, evidence held to warrant a conviction.

were engaged in a conversation near the mail box when the appellant approached with metal knuckles in his hand, stating that he had found them upon the public road some 300 yards distant; that he saw the appellant and

Appeal from Leon County Court; C. O. Betts go toward the field of Betts for the purCraig, Judge.

Pleas Tucker was convicted of unlawfully carrying brass knuckles, and he appeals. Af

firmed.

C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

HAWKINS, J. The conviction is for unlawfully carrying brass knuckles. The state used one witness only. By him it is proved that while he and the sheriff of the county were in the woods near the farm of Jerry Betts, on the morning of the 3d of September, looking for bootleggers, they saw Jerry Betts and appellant near some barrels which had mash in them; that they emptied one of the barrels and started away, when the witness and the sheriff halted them and searched them and found in the pocket of appellant a set of metal knuckles. The witness said that Betts declared that when appellant came to the house of Betts the latter was in the field picking cotton. The witness also said that when arrested the appellant was not going in the direction of his home.

pose of getting melons.

Betts testified as to the transaction and all

its details after appellant came into his presence. His testimony coincides with that of the appellant.

[1] It will be seen from the foregoing statement of the testimony that appellant and his witnesses, Follie and Betts, make out a complete defense, if their testimony is to be believed. Can we discover in the record any reason for casting doubt upon their statements. Follie and Betts testified that they were near a mail box in front of Betts' house when appellant approached them with the metal knuckles in his hand, and that the conversation detailed by them occurred at that point. The witness Betts, while on the while on the witness stand, was asked if he did not tell the sheriff and the deputy that when the appellant came to his house on the morning of the arrest he (Betts) was down in his field picking cotton. He denies this, and asserts that he told the officers that he was in the field picking cotton the evening before. The deputy sheriff was placed upon the witness stand in rebuttal by the state, and testified pointed

the arrest that he was at his house when Pleas Tucker came up there, but did tell him that he (Betts) was down in his field picking cotton at the time the appellant came to his house.

Appellant testified that he resided about a half mile from the home of Betts; that only that Betts did not tell him at the time of the morning in question he had, while on the way to the home of Betts for the purpose of getting some watermelons, and while traveling on the public road, found a set of metal knuckles, picked them up, and carried them in his hand to the home of Betts; that he found Betts and one Lewis Follie near the mail box; that he exhibited the knuckles to them and after some conversation started, in company with Betts, to the field after the melons. On reaching the melon patch they saw in the field some hogs, and in undertaking to drive them out they scattered, some of them going into the woods, where appellant and Betts followed them, and came upon some barrels with what they called "mash"

[2] This will probably explain why the issue of fact raised by the testimony of appellant and his witness, and involving a defensive theory, was disbelieved in the trial of the case. It was purely a question of fact; the issue was for the court or jury on the trial; and, it having been solved against appellant, we fail to find anything in the record to authorize a reversal of the case, and the judgment of the trial court is therefore affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(90 Tex. Cr. R. 41)

(232 S.W.)

Ex parte KAHN. (No. 4802.) (Court of Criminal Appeals of Texas. June 24, 1921.)

1. Contempt 54(2)-Information may be presented by prosecuting attorney without affidavit.

It is not necessary that the presentation for contempt be supported by an affidavit, but it may be made by the prosecuting attorney in his official capacity.

2. Criminal law 510-Testimony of accomplice must be corroborated to support conviction for contempt.

Contempt of court by the attempted bribery of jurors is punishable only by a fine and jail sentence, and would therefore be a misdemeanor, and no conviction can be had therefor on the testimony of an accomplice unless he is corroborated by independent evidence connecting accused with the offense. 3. Criminal law

511(1)-Evidence. held insufficient to corroborate testimony of accomplice.

In contempt proceedings against an attorney for attempted bribery of jurors, testimony relating principally to the attorney's evidence in behalf of the one who offered the bribe, all of which could be explained consistently with the innocence of the attorney, held insufficient to corroborate the testimony of an accomplice that the attorney employed him to offer the bribe.

and agreed to improperly influence certain jurors drawn on a special venire in a case wherein relator was one of the attorneys, said judgment proceeding upon the conclusion that the effort was shown to have been made to bribe said jurors, and that this relator was a party to said transaction either by active participation therein at the time, or by reason of advising or agreeing thereto prior to the attempted consummation. The party who was charged with the direct effort to influence said jurors improperly was one Hennessey.

[1] Relator attacks the sufficiency of the instrument signed and filed officially by the criminal district attorney of Harris county charging said contempt as being insufficient for that purpose. Without discussing the authorities cited by relator and appearing in support of his position, it suffices to state that, as we understand the authorities in this state, it is not necessary that the presentation for contempt be supported by affidavit, but that same may be made by the prosecuting attorney in his official capacity. Ex parte Foster, 44 Tex. Cr. R. 425, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866; Ex parte Smith, 40 Tex. Cr. R. 179, 49 S. W. 396; Ex parte Landry, 65 Tex. Cr. R. 440, 144 S. W. 962; Ex parte Shepherd, 68 Tex. Cr. R. 443, 153 S. W. 628; Ex parte Yoshida, 70 Tex. Cr. R. 212, 156 S. W. 1166; Ex parte Poindexter, 109 Ark. 179, 159 S. W. 197, 46 L. R. A. (N. S.) 517.

4. Contempt 60(2) Statements of jury briber implicating attorney are inadmissible For purposes of this opinion it is not necagainst the attorney. essary to discuss the principal facts. ReIn contempt proceedings against an attor-lator's client was charged with murder. ney for attempted bribery of jurors, statements made by one through whom the money was paid to the man who offered it to the jurors implicating the attorney in the transaction are inadmissible against the attorney.

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LATTIMORE, J. The relator is restrained by virtue of a judgment from the criminal district court of Harris county whereby he is adjudged guilty of contempt, and his punishment fixed at a fine of $100 and confinement in the county jail for three days.

There seems no dispute of the fact that W. F. Hennessey attempted to bribe two of the jurors who were summoned on the special venire in that case. The case was set down for the 26th of March, 1917, and that was the date on which said jurors were summoned to appear. The case seems to have been continued by agreement of parties on Friday, the 23d of March. It is insisted by relator that the testimony of Hennessey, the admitted principal in the effort to bribe said jurors, is that of an accomplice in this case, and that, unless he was corroborated by other evidence tending to connect relator with the offense, the charge against him would not be sustained, and the judgment of contempt was erroneous.

[2] The offense charged against relator is punishable only by fine and a jail sentence. Same would, therefore, be a misdemeanor. It is evident that, if any attempt was made to bribe jurors, Hennessey was a party to said An examination of the judgment and the transaction, and his evidence, when used pleadings upon which same is based shows against relator as a witness, would be that of that the foundation for said proceeding was an accomplice, and would require corroboraa charge filed by the criminal district attor- tion. Branch's Ann. P. C. § 702. It appears ney of Harris county, alleging that relator to us from an inspection of the record in this and certain others had conspired, combined, case that the trial court proceeded upon this

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

theory, and that he must have concluded that fied to a number of conversations with there was such corroboration of Hennessey, Bouknight in which he made statements who was used as a state witness, as justi- which, if admissible, would tend to implicate fied finding relator guilty as charged. this relator. We do not think said state[3] For the purpose of determining wheth-ments of Bouknight admissible as against er or not there be sufficient evidence in the this relator. case independent and separate from that of said Hennessey to corroborate him, we state the substance of the testimony of each other witness save that of the trial judge, the district clerk, and the two jurors, none of these testifying to anything shedding light upon relator's connection with the transaction. We also omit any discussion of the testimony of Hennessey, the alleged principal.

Lawrence Hennessey, a brother of said alleged principal in said bribery matter, said that after his brother came back or when they were looking for him back he went to a man named Gordon to try and get him to sign a bond, and that Gordon put in a longdistance call for relator at Marlin, Tex., and talked over the phone to some one whom he supposed to be relator, and then signed the bond. Gordon testified that he talked to re

relator told him that he did not think that said Hennessey would run away, that relator did not guarantee or request witness to sign said bond, but that after he talked to relator he signed it. Witness King said he represented Hennessey in two cases of bribery, and that relator paid him the fees for so doing; that he told witness that he had been requested to represent Hennessey, but did not feel inclined to do so because the charge against him grew out of an alleged attempt to bribe jurors in a case against one of relator's clients. Witness did not know where the money came from which was paid to him by relator. Hennessey had told witness that he had no money unless he soaked his diamonds for it.

Larry Moore testified that he was a venire-lator over the long-distance phone, and that man summoned on Becker's Case, and that relator telephoned him to come to his office, and that he went on Saturday, March 24th, and that when he got to said office relator asked him if he was summoned on the venire in the Becker Case, and witness told him "yes," and relator said, "The case is put off," and witness said he would not have to serve anyhow because he was exempt, and that relator thanked witness for coming over, and witness got his hat and left. This is all that appears in the testimony of Mr. Moore in anywise affecting relator. Mr. Gorman tes-lator's clients. Mr. Gorman testified that he signed a bond for Hennessey, who was at that time charged with bribery, at the request of a Mr. Bouknight, but he did not mention relator's name in his testimony anywhere.

The above represents a fair statement of [4] Mrs. Mollie Hennessey, wife of the al- all the evidence upon which reliance must be leged principal in said bribery transaction, had to corroborate Hennessey in his claim testified that after having a conversation that he was advised and employed by Boukwith her husband and a man named Bouk-night and relator to attempt to bribe said night she went to the office of relator herein jurors. There is nothing in that of Moore and had the following conversation with him: and Gorman which has apparently any He asked her what her business was, and weight at all. There is nothing in the testishe told him she came to see what this was mony of the other four witnesses which is not they got Hennessey into, and he said, "Well, entirely explainable upon perfectly innocent it will not amount to anything," or something grounds, and we are of the opinion that said like that, and for her not to worry, and that evidence is insufficient, taken in and of ithe would see Hennessey through it. She self, to tend to connect relator with any efspoke of wanting money to send her husband, fort to bribe any jurors, and this we underand relator said to her, "Go to Bouknight, stand to be the test of the sufficiency of and we will do business through Bouknight's corroborative evidence. Unless such evioffice." Relator said to her that he did not dence, when considered separate from that of want her in his office or to be seen around the accomplice, tends to connect the accused there, and thereafter she did not go to said with the crime charged, the corroboration office and never saw relator again. She should be held insufficient. testified and her son testified that on several occasions after this they went to, Bouknight's office and obtained from him various sums of money. She and her son also testi

So believing, the writ prayed for by relator is granted, and it is ordered that he be discharged from custody under said judgment of contempt.

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