Volume 258 — South Western Reporter

Application by Lillian Whittenberg for writ of habeas corpus, to secure possession of a child alleged to be restrained of its liberty by F. A. Craven. A judgment granting the application and awarding the custody of the child to applicant was reversed by the Court of Civil Appeals (216 S. W. 251), and applicant brings error.

<p>1. Landlord and tenant <&wkey;>48(2) — Mental anguish not an element of actual damages for breach of contract to lease. ></p> <p>In'action of trespass to try title, in which defendant counterclaimed for breach by plaintiff of a contract to lease the land to defendant on shares of .the crops, under which contract defendant claimed right to possession, defendant was not entitled to recover for mental anguish where exemplary damages were not pleaded.</p> <p>2. Appeal and- error &wkey;!064(l) — Submission of improper element of recovery not harmless.</p> <p>Submission of an improper element of recovery, . the finding being general, will not be regarded as harmless.</p> <p>3. Trial <&wkey;25( 13) — Defendant held entitled to open and close notwithstanding his plea of not guilty.</p> <p>In trespass to try title, where defendant admitted plaintiff’s title and right to possession, and counterclaimed for breach of contract to lease the land to defendant, defendant was entitled to open and dose under Rev. St. art. 1953, and his plea of not guilty did not deprive him of that right.</p>

<p>Appeal from District Court, Bexar County ; Robt. W. B. Terrell, Judge.</p> <p>Action by M. Coppard against William Stanush. Judgment of nonsuit, and plaintiff appeals.</p>

T. Wilkinson, Judge. Proceeding under the Workmen’s Compensation Law by C. K. Gilmore, claimant, opposed by the Downey Lumber Company, employer, and the Lumbermen’s Reciprocal Association, insurer. From judgment for claimant on appeal from a ruling of the Industrial Accident Board, insurer appeals.

O. Beard, Judge. Action by Z. L. Jarrott against J. L. Lancaster and others, receivers. From a judgment for plaintiff, defendants appeal.

<p>1. Perjury <®=»32( I)— Statements to county attorney held admissible as evidence of similar statements before grand jury.</p> <p>In a prosecution for perjury consisting of false statements made before the grand jury, testimony of the county attorney that defendant came to his office just prior to the time he testified before the grand jury, and made and swore to a written statement as to the same matters to which he testified before the grand jury, held admissible as persuasive of the fact of such subsequent statement, though made ip connection with the investigation of another ease.</p> <p>2. Perjury <®=o32(8) — Admission of testimony of statements made by defendant held not error.</p> <p>In a prosecution for perjury consisting of false statements by defendant to the grand jury that he had purchased liquor from a particular person, the admission of testimony that defendant had subsequently stated to a witness that he purchased no liquor from that person held not error; the same witness and others having also testified that they heard, defendant, while testifying at the trial of the person charged with such sale, deny any purchase from him.</p> <p>3. Indictment and information 69 — Testimony as to condition of defendant’s mine held not admissible where no plea of insanity.</p> <p>In a prosecution for perjury, refusal of the court to permit defendant to ask a witness if he knew the condition of defendant’s mind held not error; there being no plea of insanity.</p> <p>On Motion for Rehearing.</p> <p>4. Perjury <S=>24 — Indictment held not defective.</p> <p>An indictment for perjury, in that defendant falsely testified before the grand jury that he “did buy a quart of whisky from R. A. * * * in the presence of J. S.,” held not defective on the ground that the latter allegation was immaterial and invalidated it.</p> <p>5. Perjury <§^>29 (2)- — Conviction sustained if mátériai assignments supported by.proof.</p> <p>When more than one assignment is laid in a perjury charge, those not material or not proven will be rejected and conviction sustained if material elements appear and are supported by proof.</p> <p>6. Perjury ⅞=»11 (2) — May be assigned on false testimony only collaterally material.</p> <p>Under Pen. Code 1911, art. 309, perjury may be assigned on false testimony as to facts which are collaterally, remotely, or circumstantially material, and a statement as to persons present when a given event tools place may be of great materiality.</p>

<p>1. -Continuance <&wkey;7 — Granting continuance is largeiy discretionary.</p> <p>In the granting or refusing pf a continuance the trial court is allowed wide discretion.</p> <p>2. Continuance <&wkey;30--Refusal to grant continuance on ground of surprise by reason of amendment held not abuse of discretion.</p> <p>In an action for rental of pasture, in which defendant admitted contract of pasturage but set up a cross-action for damages, based on plaintiff’s alleged breach of contract to furnish water for cattle, though plaintiff then filed an amended petition alleging they had not obligated themselves to furnish water in the face of any emergency that might exist, refusal to grant defendant’s motion for continuance on the ground of surprise was-not abuse of discretion.</p> <p>3. Animals <&wkey;25 — Evidence held insufficient to show breach of contract for pasturing.</p> <p>In an action for rental of pasture for certain months, evidence held insufficient to show plaintiffs breached their contract to furnish water for defendants’ cattle or that the cattle suffered any damages from lack of water.</p> <p>4. Evidence <&wkey;47I (25) — Testimony as to insufficiency of water supply for cattle and consequent damage being in nature of conclusions held properly excluded.</p> <p>In an action for rental of pasture, in which defendants set up a cross-action alleging damages to the cattle by reason of plaintiff’s alleged breach of contract to furnish water for cattle, testimony of one of defendants as to insufficiency of water supply and consequent damage, being in the nature of conclusions, held properly excluded.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Bernard Gloékler Company against the Westbrook Hotel Company, a co-partnership. Judgment for defendant, and plaintiff appeals.</p>

- Appeal from District Court, Karnes County; Covey C. Thomas, Judge. Suit by Mrs. R. H. Coats and others against D. E. Bain and others. From an order of the district court dismissing an appeal from an order by the probate court approving a report and final accounting by defendants as executors of W. G. Butler, deceased, plaintiffs appeal.

<p>Appeal from District Court, Childress County; J. V. Leak, Judge.</p> <p>Suit by Henry Hankins and another against Robert Reisenberg. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal and error ⅜=>1002 — Jury verdict on conflicting evidence conclusive.</p> <p>The appellate court cannot review verdict •on conflicting evidence.</p>

<p>Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.</p>

<p>Appeal from District Court, Harris County; Ewing Boyd, Judge.</p> <p>Suit by H. B. Crandell and another against Ed.' Blackman. From judgment rendered, defendant appeals, and plaintins cross-appeal.</p>

Bishop, Judge. Action by H. L. Lemons and others against the Fort Worth & Denver City Railway Company and another. From judgment for plaintiff, named defendant appeals.

<p>, 1. Injunction <§=105( I) — Generally equity cannot be invoked to enjoin criminal prosecutions.</p> <p>Ordinarily a court of equity cannot be invoked to enjoin criminal prosecutions, since equity is concerned only with the protection of civil and property rights, and is intended to supplement and not to usurp the functions of the courts of law.</p> <p>2. Injunction. <§= 105(1)— Criminal prosecution not enjoined where applicant has adequate remedy at law.</p> <p>Equity cannot be invoked to enjoin criminal prosecutions where the applicant has a plain, adequate, and complete remedy at law.</p> <p>3. Equity <§=l— Equity intended to supplement and not usurp functions of courts of law.</p> <p>Equity is concerned only with the protection of civil and property rights, and is intended to supplement and not usurp the functions of the courts of law.</p> <p>4. Injunction <§=105(1) — Proper remedy against multiplicity or oppressiveness of criminal prosecutions.</p> <p>Equity may intervene to restrain a multi- • plieity or oppressiveness of criminal prosecution.</p> <p>5. Municipal corporations <§=>607 — Removal of garbage within police' power.</p> <p>It is within the police power of a city to pass ordinances and make regulations governing the removal of garbage.</p> <p>6. Municipal corporations <§=>626 — Municipality may classify occupations and prescribe what constitutes a nuisance.</p> <p>A municipality may classify persons, organizations, and corporations .according to their business, and may apply different rules t.o those which belong to different classes, and prescribe what constitutes a nuisance, and such determination should be upheld in doubtful eases where a certain thing may or may not be a nuisance, depending upon a variety of cirT cumstances requiring judgment and discretion on the part of the city authorities in the exercise of their functions.</p> <p>7. Constitutional law <§=278(4) — Ordinance as to removal of garbage held not violative of due process clause.</p> <p>An ordinance classifying particular matter as “garbage,” and prohibiting any one but a licensed garbage officer from hauling such garbage, held not to deprive one who had been engaged in the business of hauling garbage prior to enactment of ordinance of his property rights in violation of the due process clause of the Constitution (Const, art. 1, § 19); the enactment of such ordinance being within the police power of the city.</p> <p>8.Monopolies <§=4 — City held empowered to make contract with particular person for hauling of garbage.</p> <p>A city had the right to make a contract with a particular person giving him the exclusive right to haul all of the garbage in the city, and providing the fee or charges to be made for such hauling.</p>