made separately to each of the jurors who sat in the case. If the challenge is relied upon as a challenge to the array, it is not sufficient. It is not contended that any juror sat in this case who had formed an opinion in regard to the assault to murder, for which the appellant has been convicted and appeals, and is now before this court. It is not contended that any juror who sat in the case had any bias or prejudice against the appellant. They swore that they had not. This being the condition of the question before us, it must be contended that the killing of Koch by appellant, under the circumstances, and we are not aware of what they were,-prejudiced the jurors against the defendant in this case. Now, the record fails to show that they had any opinion as to the merits of this case, and hence appellant must rely alone upon the ground of prejudice in the minds of the jurors who tried him, arising from the homicide. This takes us back to the question, was either of the jurors who sat in the case prejudiced against the defendant from any cause? Appellant cannot rely upon subdivision 13 of article 673, Code Cr. Proc. 1895, but must rely upon subdivision 12 of said article, which reads, "If a juror has a bias or prejudice in favor of or against the defendant." These jurors had formed no opinion as to the guilt of the appellant of assault with intent to murder. An opinion as to his guilt in the murder case would not disqualify a person from serving in the assault to murder case without opinion. The murder case may have been of such a character as to prejudice jurors against the defendant individually, but this is denied by each juror who sat in the case. If they were prejudiced against the defendant by reason of that fact,-that is, that he had killed Koch, then they perjured themselves when they denied it on their voir dire, and we cannot assume that they did so.

12. The state was permitted, over the appellant's objection, to prove by the witness Drye that Koch came to where he was the morning of the alleged assault, and before it occurred, to get him to go and see about the difficulty or trouble which had occurred between defendant and wife on the day before; and, among other things, the prosecution asked the witness the following questior: "Now, I will ask you if he did not tell you that she was up in College addition, that she was up there because she had fled from him, and that he must go to see her." And the witness answered: "No, sir; he said that he understood his sister was up at Mr. Armstrong's, and wanted to know whether I would go up to see whether she was up there or not, and I told him I would not go." We cannot possibly perceive how the fact that Koch requested Drye to go to see his sister in regard to the trouble which had occurred between her and appellant the day before could injure the appellant; and besides, as explained by the court, defendant's counsel had already brought out from this witness a part of the conversation between the witness and Koch, which made this testimony admissible.

13. On cross-examination of this witness, Drye, the prosecution was allowed to ask him: "What was Koch's condition when you were talking to him,-whether he was crying or not when he spoke of his sister? Did he seem to be very much hurt about it?" Witness answered: "Yes, sir; he was crying. He seemed to be hurt." The fact that Koch was crying, and seemed to be excited and hurt, on being informed that appellant had trouble with his sister on the day before, and perhaps whipped her, occurs to us to be immaterial as tending to affect this case one way or the other. The record establishes beyond question that there was trouble between appellant and wife the day before the killing, that perhaps he whipped her, that Koch was informed of it, that Koch was her brother, and that he went to appellant for the purpose of investigating that matter. Concede these facts, and it is perfectly natural for Koch to have been excited and affected. The jury could not have been wrongly influenced by this excitement, for it is that which would be naturally expected. And, as above remarked, we look upon this matter as immaterial, yet harmless. Besides, the court, in his instructions, charged the jury not to consider these matters for the purpose of determining whether or not appellant was guilty of the crime charged.

14. In motion for a new trial it was urged that the verdict of the jury was obtained by casting lots; that is, by each juror placing the number of years at which he assessed the punishment of defendant in a hat, and aggregating the amount, and dividing it by 12. There were affidavits pro and con on this subject. The affidavits do not indicate or show that the jurors, before they adopted this method, agreed to be bound by it. In fact, it is shown that the verdict, as ultimately agreed upon by them, was not the result reached by this lottery. We think there was no error in

this.

15. We have examined the charge of the court in this case, and we find it complete, covering all of the phases of the case. The special charges were not called for by the evidence. There was no aggravated assault in this case. The evidence showed simply an assault with intent to murder, and nothing else. The judgment is affirmed.

CALDWELL v. BRYAN et al. (BEAUCHAMP, Intervener). (Court of Civil Appeals of Texas. Nov. 4, 1896.)

APPEAL-FINAL JUDGMENT-FAILURE TO DISPOSE OF ISSUES.

A judgment which fails to dispose of the issues between all the parties, presented by the pleadings and evidence, is not a final judgment from which an appeal will lie.

Appeal from district court, Hunt county; Howard Templeton, Special Judge. Action by A. Caldwell against J. H. Bryan and others. Ella Beauchamp intervened.

From the judgment, plaintiff appeals. Appeal dismissed.

Mathews & Neyland, for appellant. V. M. Clark and M. M. Brooks, for intervener. Montrose & Clark, for appellee Wesley Clark, executor of J. H. Bryan.

FISHER, C. J. This suit was instituted by the appellant against appellees, J. H. Bryan and C. H. Beauchamp, in form to remove cloud from title, but in effect trespass to try title to recover seven certain tracts of land. Subse quently Ella Beauchamp intervened, and set up title to some of these lands. In the action between the plaintiff and the defendants the real controversy was between the plaintiff and defendant Bryan. The court below rendered judgment disposing of the lands claimed by the intervener, and also rendered judgment in favor of plaintiff and defendant Bryan against the defendant Beauchamp, to the effect that they recover of Beauchamp the lands sued for; but as between the plaintiff and the defendant Bryan, represented by his executor, Clark, no disposition was made by the judgment of the court disposing of three of the tracts of land in controversy, although both the plaintiff and defendant Bryan claimed and set up title to said lands in their pleadings, and each offered evidence in support thereof. The result of this statement is to show that, as to three of the tracts, a distinctive part of the matter in controversy was not disposed of by the judgment of the court. Michon v. Ayalla, 84 Tex. 685, 19 S. W. 878. Therefore we hold that no final judgment has been rendered in this case, and the appeal will be dismissed. Appeal dismissed.

DURNETT ▾. GULF CITY RAILWAY & REAL-ESTATE CO.

(Court of Civil Appeals of Texas. Oct. 22, 1896.)

STREET RAILWAYS-NEGLIGENCE-DRIVER OF HORSE CAR-WEIGHT OF EVIDENCE-NEW TRIAL— NEWLY-DISCOVERED EVIDENCE.

1. In an action against a street-railway company for injuries alleged to be due to the negligence of the driver of the car, it was not error to charge that negligence on his part is the want of such care as a reasonably skillful and prudent street-car driver would observe under similar circumstances, and if by failure to exercise such prudence a passenger is injured the company would be liable.

2. In view of such instruction, it was not error to refuse to further instruct the jury that "it is the duty of a street-car driver to be skillful and prudent and cautious, to see that passengers on his car are not injured, and in case a passenger on a car is injured by the negligence of the driver the company is liable for such injury. Negligence in a car driver is the want of such care and prudence as skillful, prudent, and careful car drivers observe under similar circumstances."

3. In an action against a street-railway company for personal injuries, where the only negligence complained of was that of the driver of the street car, it was not error to refuse to instruct generally as to the degree of care required of street-railway companies.

4. A motion for new trial on the ground of newly-discovered evidence will not be granted in the absence of anything to show that the evidence claimed to have been newly discovered could not, by reasonable diligence, have been procured before the trial.

5. A verdict rendered upon conflicting evidence will not be disturbed on appeal.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by A. Durnett against the Gulf City Railway & Real-Estate Company to recover damages for personal injuries. There was a verdict and judgment for defendant, and plaintiff appeals. Affirmed.

This was an action by appellant to recover compensation for injuries which he alleged were inflicted on him by the negligence of defendant while he was getting off of one of its horse cars in Galveston, on which he was riding as a passenger. The petition alleged, in substance, that the car was being driven rapidly, and that as plaintiff arose to his feet to give the usual signal to stop, by pulling the bell cord on the side of the car opposite to that where he sat, there being none on his side, the driver suddenly and without warning checked the car, and then suddenly started it again, thus throwing plaintiff out at the rear door of the car to the ground; that as he fell his foot was caught by a leather strap lying on the floor of the car, and held fast, so that after be fell to the ground he was dragged by the car across the ties and a switch, and injured; that he called to the driver to stop the car, but that the latter, though he heard, refused to heed plaintiff's request, and maliciously continued to drag plaintiff along the track until plaintiff got out his knife and cut the strap. The acts and omissions charged to have been negligent were the rapid driving, the sudden stopping and starting of the car, permitting the strap to lie in the car, and the failure of the driver to stop after plaintiff had been thrown out of the car. It was not claimed in the petition that the failure to equip the car with a bell cord on both sides was negligent. That circumstance was merely mentioned in the narrative of the event, and in explanation of plaintiff rising to his feet. The defendant denied generally, pleaded contributory negligence on plaintiff's part, and specially averred that the disabilities set up by plaintiff as resulting from the occurrence alleged were, if they existed, caused by former injuries. On a trial by jury, verdict and judgment were rendered for defendant. The evidence showed that plaintiff rode as a passenger on a mule car of defendant on the night of the 21st of February, 1894, along Avenue O, until the car reached Thirty-Fifth street, and that there plaintiff alighted. The driver of the car was in sole charge of it, and he and the plaintiff were the only persons on it when plaintiff left it. Their testimony is in direct conflict. Plaintiff testified to the facts alleged in his petition, and the driver denied them, stating that he was not driving rapidly, and could not have done so, on account of the condition of

liquor; and that the next day he was found by the affiant to be severely injured, and stated that he had been thrown off the car, caught in lines, and dragged; and that this witness picked up the piece of line where she had seen the man throw the object, and plaintiff stated to her that it was a portion of the line that had caught him. The excuse given for the failure of plaintiff to procure this testimony before or during the trial is that he had no reason to anticipate the statements of witnesses of which it would be contradictory until a short while before the evidence closed, and it was then impossible to discover it in time.

Austin & Rose, for appellant. Chas. J. Stubbs, for appellee.

Jas. B. &

WILLIAMS, J. (after stating the facts). The charge of the court contained the following clause: "Negligence on the part of the driver of the street car of defendant company is the want of such care and prudence as reasonably skillful and prudent street-car drivers observe under similar circumstances; and in transporting passengers the car driver should exercise such degree of care and prudence to avoid injury to passengers as reasonably prudent streetcar drivers observe under similar circumstances, and the failure to exercise such prudence would be negligence, and if by such negligence a passenger is injured the company would be liable in damages for such injury." Plaintiff requested the following instruction: "It is the duty of a street-car driver to be skillful and prudent and cautious, to see that passengers on his car are not injured, and in case a passenger on a car is injured by the negligence of the driver the company is liable in damages for such injury. Negligence in a car driver is the want of such care and prudence as skillful, prudent, and careful car drivers observe under similar circumstances." And the giving of one and the refusal of the other is assigned as error. We think the charge given is correct, and that it is substantially the same as the special charge asked for. Hence there was no error in this.

Appellant further complains of the refusal of the following instruction: "Street-railway companies, in transporting passengers upon their cars driven and managed by their employés, must, while thus transporting such passengers, exercise a high degree of care, in order to avoid accident or injury to such passengers, and the failure to exercise such care as a person of ordinary prudence under like crcumstances would use is negligence." The charge of the court instructed the jury only as to the duties of the driver of the car, and did not inform them as to any duty resting on the defendant, beyond those which the driver was required to perform. If there was any omisson of a duty to plaintiff which was not that of the driver, he was entitled to have the jury instructed in regard to it. In other words, if any negligence of defendant, other than that of the driver, was alleged and proved, it was

error for the court to refuse to submit it to the jury as a basis for a recovery. But, while all of the acts and omissions stated in the pleadings as negligence are properly charged against defendant, the evidence showed that if they occurred it was from dereliction of the driver; and when the court instructed as to his duties, and the consequences of his failure to perform them, it submitted the whole case. Allen v. Railroad Co., 79 Tex. 632, 15 S. W. 498. The absence of a bell cord is not charged as negligence, and the presence of the strap on the floor, if it was there in fact, was temporary, and it was allowed to be there by a failure of the driver to perform his duty, he being the only servant in charge of the car. He is the only servant of defendant who had oppor tunity to know the fact and remove the strap. We have already said that the verdict is sustained by sufficient testimony, and cannot be set aside by this court as being contrary to the evidence. Nor do we think that the matter set up in the motion for new trial, and the excuses offered for its nonproduction at the trial, are sufficient to entitle plaintiff to have the judgment reversed. Some of it was plainly such as plaintiff ought to have known of before the case was closed. All of it seems to have been ascertained from sources which should have readily suggested themselves when defendant's witnesses made the statements sought to be contradicted. Yet plaintiff made no effort to procure it, but proceeded with the trial without asking for any delay, resting the case upon the testimony already before the jury. His diligence is hardly sufficient. Some of the evidence appears to be cumulative. But, passing that, none of it goes to the vital point of the case. It is relevant, it is true, and portions of it might tend to weaken some of the circumstances relied on by defendant to break down the narrative of the plaintiff. But at last the inquiry is whether the plaintiff or the car driver has told the truth. If the former is to be believed, he has been greatly wronged, while, if the statements of the latter be cred ited, plaintiff has fabricated a case, utilizing bruises and hurts received, or apparently received, from some other quarter, as a means of fixing liability on defendant. The jury and the trial judge, better situated than we are to judge between them, have decided in favor of defendant. With the additional evidence before it, can we say that another jury would probably decide differently? Or can the court say with any degree of confidence that such a verdict, if rendered, instead of the one before us, would be the just determination of the controversy? The verdict of the jury and the action of the trial court are in favor of the superior credibility of the defendant's witnesses. We must assume that this decision, upon the evidence before the court and jury, was correct, and, that being so, we cannot see in the proposed new evidence facts of such cogency as ought to change it. The proposed evidence would not even have the effect of conclusively establishing the facts stated in

Statement of the Case.

FISHER, C. J. This suit was instituted in the district court of Tom Green county by defendant in error against the San Angelo Ice Company, the Brownwood Ice Company, J. L. Millspaugh, and T. B. Sanderson. The purpose of the suit was to recover on three promissory notes, and to foreclose liens on the property of each of the ice companies. Judgment below was rendered against all of the defendants on the notes and foreclosing the liens on the property of the Brownwood Ice Company and the San Angelo Ice Company.

Statement of the Facts.

The following are all the facts shown by the record:

Plaintiff read in evidence the three promissory notes sued on and described in plaintiff's first amended petition, and also the two deeds of trust described in said first amended petition, which said notes, with the indorsements thereon, and deeds of trust, are as follows:

"San Angelo Ice Factory. $2,000.00. San Angelo, Texas, January 1st. 1893. On August 31st, 1893, for value received, we jointly and severally promise to pay to the order of the York Manufacturing Co. two thousand dollars, with interest at six per cent. per annum from date, at the San Angelo National Bank, San Angelo, Texas. San Angelo Ice Co., by J. L. Millspaugh, Pres't. J. L. Millspaugh. Brownwood Ice Co., by J. L. Millspaugh, Pres't. T. B. Sanderson."

"San Angelo Ice Factory. $2,000.00. San Angelo, Texas, January 1st, 1893. On November 30, 1893, we jointly and severally promise to pay to the order of the York Man

ufacturing Co. two thousand dollars, with interest at six per cent. per annum from date, at San Angelo National Bank, San Angelo, Texas. San Angelo Ice Co., by J. L. Millspaugh, Pres't. J. L. Millspaugh. Brownwood Ice Co., by J. L. Millspaugh, Pres't. T. B. Sanderson."

"San Angelo Ice Factory. $2,130.30. San Angelo, Texas, January 1st, 1893. On February 28, 1894, for value received, we jointly and severally promise to pay to the order of the York Manufacturing Co. two thousand one hundred and thirty 30/100 dollars, with interest at six per cent. per annum from date, at the San Angelo National Bank, San Angelo, Texas. San Angelo Ice Co., by J. L. Millspaugh, Pres't. J. L. Millspaugh. Brownwood Ice Company, by J. L. Millspaugh, Pres't. T. B. Sanderson."

"State of Texas, County of Brown. Know all men by these presents, that the Brownwood Ice Company, a private corporation, duly incorporated under the laws of the state of Texas, for and in consideration of ten dollars, to it in hand paid by the York Manufacturing Co., of York, Pennsylvania, the receipt of which is hereby acknowledged, have this day sold, and do by these presents grant, bargain, sell, and convey, unto the said York Manufacturing Company, the following described property, to wit: The piece of ground fronting 100 (one hundred) feet on West Broadway, and running back due east 200 (two hundred) feet to West Broadway line of East Broadway, being part of block No. 18 (eighteen) of the town of Brownwood, in Brown county, Texas, according to the map and plan of said town, together with all, buildings thereon situated, including the ice factory and tools and machinery connected therewith; to have and to hold the above-described property unto the 3aid York Manufacturing Company, its successors and assigns; and the said Brownwood Ice Company does hereby agree to warrant and forever defend the title to the before-described property unto the said York Manufacturing Company, its successors and assigns, in fee simple forever. This instrument is, however, intended as a mortgage for the purpose of securing them in the payment of the following described promissory notes, to wit: One certain promissory note, dated January 1st, 1893, for $2,130.30, issued at San Angelo, Texas, executed by the San Angelo Ice Company and J. L. Millspaugh, and made payable to the order of the York Manufacturing Company at San Angelo National Bank, San Angelo, Texas, and hearing interest at six per centum per annum from date thereof, and due and payableFebruary 28th, 1894. Now, the conditions of this instrument are that, if the above-described note be paid according to its face and tenor, then this instrument to be null and void, and of no effect or force; but should said note. or any part thereof, remain unpaid, then this instrument to re