Brown v. Perez

• Decision Date: 09 March 1896
• Citation: 34 S.W. 725
• Parties: BROWN et al. v. PEREZ.
• Court: Texas Supreme Court

34 S.W. 725

BROWN et al. v. PEREZ.

Supreme Court of Texas.

March 9, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Trespass to try title by Jesus Perez against J. N. Brown and others. There was a judgment of the court of civil appeals affirming the judgment for plaintiff (32 S. W. 546), and defendants bring error. Affirmed.

Simpson & Onion, for plaintiffs in error. B. F. Ballard and Thos. H. Franklin, for defendant in error.

BROWN, J.

Jesus Perez sued J. N. Brown and others, plaintiffs in error, to recover a league and labor of land situated in Atascosa county, granted by the state of Texas to the heirs of Diego Perez. Defendants below pleaded not guilty. Judgment was rendered for the plaintiff. No question is made that Jesus Perez is the only heir of Diego Perez. Defendants hold under a regular chain of transfers from A. Superville, and claimed that A. Superville acquired title to the land by a transfer of the certificate by virtue of which it was located, made to him by the plaintiff herein. The sole question in the case was the genuineness of the alleged transfer from plaintiff to Superville, the execution of which the plaintiff denied. The transfer from plaintiff to Superville bears date March 25, 1854. It begins in this language: "Know all men by these presents, that I, Anselmo De Jesus Perez, of the county of Bexar and state of Texas, son and sole heir of Diego Perez, deceased," etc., describing and transferring the certificate by virtue of which the land was located. At the bottom of the deed for the name of the grantor is written "Jose De Jesus Perez," with a cross for his mark. It is attested by two witnesses, whose names are signed, "Esteban De La Gza," with a mark above the last "a" resembling the letter "I" as written with a pen, and "Ramon Garcia." The certificate of proof before Sam S. Smith, county clerk, recites that "Roman Garcia appeared and proved the deed as witness thereto." The latter named witness was shown to be dead at the time of the trial. Jesus Perez testified upon the trial that he did not sign the transfer, nor make his mark thereto, nor did he authorize any other person to do so. One Buquor testified that he was present, and saw the plaintiff make his mark to the deed while the pen was held by Estevan De La Garza. This witness Buquor was impeached by a large number of witnesses, who testified that his reputation for truth and veracity in the neighborhood in which he lived was bad. Estevan De La Garza testified by two depositions; the first taken in 1887, and the second in 1894. He testified that he wrote the name "Jose De Jesus Perez" to the deed, and held the pen while the plaintiff, whom he identified, made his mark thereto, and that he and Ramon Garcia signed the said deed as witnesses thereto. In the first deposition, taken in 1887, Estevan De La Garza, in response to a cross interrogatory propounded to him by the plaintiff, signed his name "Estavan De La Garza," and said that this was his signature. In the second deposition, taken in 1894, the same witness, in response to a cross interrogatory propounded to him by the plaintiff, signed his name the same as it was signed as a witness to the deed, and testified that he never signed his surname in any other way. Salvador De La Garza and Rafael De La Garza each testified, in substance, that he knew the witness Estevan De La Garza, and knew his reputation for truth and veracity in the community in which he lived, and that it was bad, and that he did not believe that he was entitled to belief on oath, and that he would not believe him on oath. Salvador De La Garza testified on cross-examination that he had not seen Estevan De La Garza since the year 1863, and did not know where he had resided since that time, and did not know where he then resided; and Rafael De La Garza testified that he had known Estevan De La Garza about 20 or 25 years ago, more or less, but that he had not known him for many years. He saw him on the trial of this cause, in March, 1892. Whereupon the defendants, by counsel, moved the court to strike out the impeaching testimony of said witnesses, on the ground that it was shown that they did not know the reputation for truth and veracity of the said witness Estevan De La Garza in the community in which he lived, and had not qualified themselves to so testify, which motion was overruled by the court. The court, however, did not act upon the motion at once, but held it up until after the defendants had introduced a witness (one Buquor) who testified that he had known Estevan De La Garza for many years, and knew his reputation for truth and veracity, and that it had been good for 50 years. After this testimony was admitted, the court overruled the motion to strike out the impeaching testimony, upon the ground that it was admissible in rebuttal of the testimony of the witness Buquor. The witness Estevan De La Garza testified that he went to Mexico in 1866, and returned to Texas in 1874; that he again left for Mexico in 1878, and returned to Texas about 1883; remained in Texas until the former part of 1892, when he went to Mexico, returned in about six months, and has remained here ever since. The two witnesses Salvador and Rafael De La Garza each testified that they knew Estevan De La Garza well, and that he was not known as "Estevan De La Garza," but as "Estevan Garza." The defendants asked the court to charge the jury as follows: "You are further instructed that if you believe from the evidence adduced in evidence before you that Estevan De La Garza and Ramon Garcia witnessed the execution of the alleged deed of conveyance introduced in evidence from plaintiff, Jesus Perez, to A. Superville, and they saw plaintiff sign or make a mark in signing said instrument, then it is immaterial whether said Estevan De La Garza and Ramon Garcia signed their names in full, or whether a letter or letters were dropped from their real names, or same were misspelled, and you will find for defendants, if you so believe,"— which charge was refused by the court. Upon this subject the court charged the jury as follows: "(1) That if you believe from the evidence that plaintiff is the heir of Diego Perez, and that he [plaintiff] did not execute and deliver the instrument in writing introduced in evidence in this case as a conveyance from him [plaintiff] to A. Superville of the certificate upon which the land sued for was patented, then you will find for the plaintiff. (2) If, on the other hand, you believe from the evidence plaintiff signed said deed or instrument in writing introduced in evidence in this case as a conveyance from him [plaintiff] to A. Superville of the certificate upon which the land sued for was patented or affixed thereto his mark, then, in that event, you will find for the defendant." The plaintiffs in error present in this court the following objections to the judgments of the district court and court of civil appeals: "(1) That the court erred in not setting aside the judgment on account of language used by the counsel of plaintiff in argument to the jury; (2) that the court erred in refusing the charge asked by the defendants as given above; (3) that the court erred in not striking out the testimony of the impeaching witnesses Salvador and Rafael De La Garza."

Upon the trial of this case in the district court, counsel for the plaintiff, in his closing argument, used language to which objection was made at the time. The court promptly stopped the counsel, and admonished him not to indulge in the use of such language; whereupon the attorney withdrew the objectionable remarks, and apologized to the court and the jury for making use of them. The plaintiffs in error ask us to reverse the judgment of the court below, because of this conduct of counsel; but the judge who tried the case did all that could be done to avoid any injury to the defendant by the improper language used. The district judge was in position to observe the jury during the course of the argument, and could determine whether any injurious effect was produced upon their minds, much better than we can by examination of the record; and we presume that if, in the opinion of the trial judge, injury had resulted to the plaintiffs in error, he would have granted a new trial. We do not think, from the record as presented to us, that the error is such as to require a reversal of the judgment.

The charge requested by the defendants, and refused by the court, before quoted, was not, in our opinion, upon the weight of the evidence, and, if given, would not have been improper; but the failure to give it is not reversible error, since the court, in its charge, fairly submitted the issue to the jury in language that could not have been misunderstood.

It is contended by the plaintiffs in error that, when impeaching a witness, the subject of inquiry is his present character for truthfulness. This is a correct proposition, but it does not follow that all evidence upon that issue must relate to the present; in fact, as has been often said by courts, it must, in some degree, refer to the past. There is much apparent conflict in the decisions of the courts upon the question whether evidence of bad reputation at a remote period, and in the place of a former residence, is...