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tracks." The court refused to initiate v. State (1921) 89 Tex. Crim. Rep. the holding that measurements are 48, 229 S. W. 550. necessary as a predicate to the giving In Freeman v. State (1922) 91 Tex. of an opinion as to the similarity of Crim. Rep. 410, 239 S. W. 969, citing tracks. The witnesses in that case, Mueller v. State (1919) 85 Tex. Crim. men of experience in tracking cattle Rep. 346, 215 S. W. 93, testimony as and horses, gave the peculiarities of to the similarity of two sets of tracks tracks observed in different places, was held to be admissible, the comand then gave their opinion that they parison being based

parison being based on a specific were identical,

peculiarity and measurement. In James v. State (1920) 86 Tex. In a number of instances a witness Crim. Rep. 598, 219 S. W. 202, the has been permitted to make statecourt said: “The rules with refer- ments approximating opinions, conence to the introduction of evidence cerning tracks seen by him, where of tracks are well defined, and re- such statements did not concern or quire that the witness identifying relate to the similarity or correspondthem do so by something more than ence of several tracks; and this on his mere conclusion that they are the the ground that such testimony was a same tracks. As the bill is prepared mere recitation of facts. in the instant case, it is not clear to So, in Grant v. State (1912) 67 Tex. us that this rule was violated. The Crim. Rep. 155, 42 L.R.A.(N.S.) 428, witness said: “The tracks I saw at the 148 S. W. 760, witnesses who claimed mouth of the lane that led up to the to have experience in trailing men Whitehead house were large horse were allowed to testify that they tracks. The tracks that led off down followed the tracks of two men from there looked like the very same tracks, the scene of a homicide to a certain and were large tracks.' We think the point, and that they could distinguish objection to this evidence relates between the tracks of one running and rather to its weight than its admis- one walking. sibility."

And where it appeared that a witIn the absence of any measurement ness had been accustomed to riding of tracks, or of any marked peculiar- horses all his life, he was held to be ity noted therein, a conclusion by a qualified to testify that certain tracks witness that tracks found near the showed that the horse making them scene of a crime and those of the de- : was running. Taylor v. State (1915) fendant were similar, based on an 77 Tex. Crim. Rep. 632, 180 S. W. observation that one foot made a 642. deeper impression than the other, Testimony by a witness that at a has been said to be "too indefinite certain place he saw a mule's tracks, and uncertain to be taken as a fact, and where the mule had stopped, or introducible as such to connect and also saw the tracks of a girl and appellant with the tracks made in the

man, was held to be not opinion field where the animal was taken." evidence, but a mere recitation of Casanova V. State (1920) 87 Tex. facts, and consequently admissible in Crim. Rep. 63, 219 S. W. 478.

evidence, in Liles v. State (1911) 62 Evidence of the correspondence of Tex. Crim. Rep. 32, 135 S. W. 1177. tracks made by two men at the scene The foreman of a ranch may state of a crime, with the shoes of these that certain tracks observed by him men, where established by measure- were calf tracks, and others were ment, is legitimate. Charles v. State horse tracks. McClain v. State, supra. (1920) 87 Tex. Crim. Rep. 233, 222 Witnesses may testify that tracks S. W. 255.

had been rubbed out by the foot about A witness may not testify to the the door of a place where stolen similarity of horse tracks at two dif- property was found. Wilson v. State ferent places, where no peculiarity (1912) 70 Tex. Crim. Rep. 340, 156 of the tracks or other means of S. W. 204. identification are shown. McClain But witnesses, having described the

condition of the ground at the place that the trial court properly refused of a killing, may not state in response to direct the jury to acquit him. to a question what in their opinion Moore v. State (1907) 51 Tex. Crim. was indicated by the tracks, heel Rep. 468, 103 S. W. 188. prints, etc., such a question calling Correspondence by measurement of for the conclusion of the witnesses tracks found where property had and not a “shorthand" rendering of been stolen, with shoes of the defendthe facts. Lewis v. State (1921) 89 ant and another, was held a very Tex. Crim. Rep. 345, 231 S. W. 113. cogent circumstance in Wilson v.

A witness may state that he saw State (1913) 70 Tex. Crim. Rep. 340, no tracks of animals near

a door

156 S. W. 204. And it was held in which might have been opened by a the same case that the fact, testified bull or a horse, but he may not state to by witnesses, that tracks about that such door could not have been the same place had been rubbed out, opened by an animal. Murmutt v. would be a very suspicious circumState (1902) Tex. Crim. Rep. stance, 67 S. W. 508.

In Parker v. State (1904) 46 Tex.

Crim. Rep. 461, 108 Am. St. Rep. 1021, b. Weight

80 S. W. 1008, 3 Ann. Cas. 893, it In several cases the court, in re

was said: “If, as in this case, tracks viewing the evidence in a case, has

were found upon the ground where attributed considerable weight to

the homicide was committed, and testimony identifying with some de

these were traced to appellant's gree of certainty a footprint found

home, regardless of any ascertained near the scene of a crime as that of

or determined similarity between such the accused.

tracks and other tracks made by de: So, where tracks possessing marked

fendant, said testimony would be adpeculiarities were discovered, lead

missible. Of course, if the tracks ing from where a crime was seen to

agree in a general way with the have been committed to the house of

tracks made by defendant, or shoes the defendant, and on being meas

worn by him, the circumstances would ured were found to correspond exact

be stronger. If they agree accurately, ly with the defendant's shoes, the

or there were peculiarities between defendant admitting that some of the

the tracks found upon the ground and tracks were his, it was held that

shoes worn by defendant, the circumthere was sufficient evidence, circum

stances would be very strong. But the stantial though it was, to warrant a

want of strength in the circumstances conviction of murder, in spite of

would not render the evidence inadslight discrepancies in the testimony missible." of the witnesses. McKinney v. State Correspondence of the feet of the (1903) — Tex. Crim. Rep. —, 71 S. W. defendant's horse with tracks leading 753.

to his lot from the spot where a body And in Boyd v. State (1906) 50 was found does not prove conclusively Tex. Crim. Rep. 138, 94 S. W. 1053, that the defendant was riding it on great probative force was accorded that occasion, but is a circumstance to the identification of tracks, where tending to connect him with the ofsuch identification was dependent on fense, all such circumstances being marked peculiarities of both tracks admissible to support the truth of a and shoes, viz., absence of heels, and confession. Hampton v. State (1916) a hole in the left shoe, through which 78 Tex. Crim. Rep. 639, 183 S. W. 887. one of the toes protruded.

But in some cases the courts have Where there was evidence of mo- been loath to hold that a conviction tive, opportunity, and a correspond- could be supported merely by evidence ence of tracks found about the scene of the correspondence of footprints of a crime with the defendant's shoes, found near the scene of a crime with such tracks leading to and from the those of the defendant. house of the accused, it was held Thus, where the only evidence that

the defendant had shot a woman was threats made by him against her son, who was sitting near her when she was killed, and correspondence between the tracks made by the person who fired the gun and those of the defendant, the evidence of such correspondence being of the most general character, with nothing peculiar about the tracks, it was held that the only effect of the evidence was to create a suspicion against the accused. Gill v. State (1896) 36 Tex. Crim. Rep. 589, 38 S. W. 190. In Hester v. State (1899) Tex.

. Crim. Rep. 51 S. W. 932, the court declared that, even though tracks leading from the defendant's house to a spot near a schoolhouse which had been burned had been made by the defendant's horse, it did not follow that the tracks had been made at the time of the burning, and the circumstances, including the tracks, were held to be insufficient to prove the defendant's guilt, the court believing that the fire had been of accidental origin.

In Warren v. State (1907) 52 Tex. Crim. Rep. 218, 106 S. W. 132, the court said: “It would be a dangerous precedent, however guilty this appellant may be, for this court to lay down a rule holding that tracks alone, plus a presence within 2 miles of the scene of a crime, would justify a court in affirming a case. The tracks show that the party making same had on a pair of shoes that had been half-soled. The heel of one of the shoes making the tracks was run down and worn off; several tacks were prominent, or several indentations in the tracks appeared to have been made by prominent tacks. These peculiarities are shown to have existed in appellant's shoes. But does this exclude every other reasonable hypothesis than that the shoes worn by appellant made the tracks? We say it does not. It is too well known that shoes are frequently half-soled, and it

is equally well known that tacks are often prominent therein. It is further a commonly known fact that heels of shoes are often run down or worn off. These, being matters of common notoriety and knowledge, force us to the irresistible conclusion that this evidence does not exclude every other reasonable hypothesis than that of appellant's guilt. So believing, we reverse this case, because the evidence is insufficient to support the verdict."

In Ditto v. State (1918) 83 Tex. Crim. Rep. 220, 202 S. W. 735, it appeared that the defendant had been convicted of burglary, and the only evidence connecting him with the crime was the correspondence of his shoe with a track found near the scene of the crime. The court said: “We are not satisfied to affirm this judgment with this as the only criminating fact. Tracks, in connection with other evidence, may have some cogency tending to illustrate the case, or connect accused with a given offense, but at best it is unsatisfactory. This is practically the only evidence in the case. We are of opinion the conviction should not be sustained, especially in view of the fact that there are no other criminating circumstances."

In a number of instances the similarity between footprints connected with a crime, and those of the defendant, has constituted one of a series of circumstances supporting, in the opinion of the court, the defendant's conviction, or the submission of the case to the jury. McGill v. State (1888) 25 Tex. App. 499, 8 S. W. 661; Newman v. State (1893) 32 Tex. Crim. Rep. 92, 22 S. W. 199; Norris v. State (1901) Tex. Crim. Rep. —, 64 S. W. 1044; Boyman

v. State (1910) 59 Tex. Crim. Rep. 23, 126 S. W. 1142; Newton v. State (1912) 65 Tex. Crim. Rep. 87, 143 S. W. 638. See also Moody v. State (1889) 27 Tex. App. 287, 11 S. W. 374. R.S.

an

LEVY VICK, Piff. in Err.,

V.
RICHARD HOWARD.

Virginia Supreme Court of Appeals

March 15, 1923.

(136 Va. 101, 116 S. E. 465.) Tender - silver certificates and national bank notes.

1. National bank notes and United States silver certificates are not legal tender for the purchase price of real estate.

[See note on this question beginning on page 246.] Appeal immaterial error in instruc- ing to sell real estate of current funds tion.

not legal tender for the down payment 2. An instruction in an action for does not waive his right to insist on damages for breach of contract to con- legal tender for the balance. vey real estate that gold certificates [See 21 R. C. L. 49.] were not legal tender after they were effect of custom to accept current made so by statute is immaterial error, funds. where other money tendered to cover 7. A custom to accept current funds the purchase price was not legal in satisfaction of debts does not entender.

title one who has contracted to purVendor and purchaser - right to de- chase real estate to pay the purchase mand legal tender for purchase price in such funds, which are not price.

legal tender, against the protest of the 3. One who contracts to sell real vendor. estate for a specified number of dollars Tender - effect of statute governing may demand legal tender in satisfac

payment into court. tion of the purchase price and refuse 8. A statute providing for payment to execute a deed until it is paid. of money into court does not affect the

[See 21 R. C. L. 49; 27 R. C. L. 536.] law with respect to a legal tender in Words and phrases - "money."

payment of the purchase price of real 4. The word “money," in its generic estate. sense, is one of very comprehensive Specific performance

Specific performance - tender after import, and includes any lawful cir

day - when sufficient. culating medium of exchange.

9. One who, having contracted to [See 18 R. C. L. 1266; 21 R. C. L.40.]

convey real estate, refuses a tender Tender power of Congress.

of current money on the day of per5. Congress has the power to de- formance without previous notice that clare what kind of money shall be legal she would demand legal tender, may tender for the payment of private be required to perform in case obligations.

proper tender is made within a rea[See 18 R. C. L. 1271.]

sonable time afterwards. Vendor and purchaser waiver of [See 25 R. C. L. 321; 4 R. C. L. Supp. right to legal tender.

1582. See also notes in 11 A.L.R. 6. The acceptance by one contract- 811; 23 A.L.R. 630.]

a

ERROR to the Circuit Court for Southampton County (McLemore, J.) to review a judgment in favor of defendant in a proceeding by motion to recover damages for alleged breach of a contract for the sale of real estate. Affirmed.

The facts are stated in the opinion of the court. Messrs. Turnbull & Turnbull and within the time prescribed by the conJames T. Gillette, for plaintiff in er- tract between the parties, plaintiff was ror:

entitled to his deed, and defendant did When the balance of the purchase not have the right to demand legal price of $24,900 in current money was tender. tendered to the defendant, Howard, 21 R. C. L. § 38; King v. King, 90 (136 Va, 101, 116 8. E. 465.) Va. 177, 17 S. E. 894; Lohman v. ard Howard to recover damages for Crouch, 19 Gratt. 331; 30 Cyc. 1210; an alleged breach of a contract for Cheney v. Libby, 134 U. S. 68, 33 L.

the sale of real estate. There was a ed. 818, 10 Sup. Ct. Rep. 498; Blount

verdict and judgment below in favor v. Lynch, 24 Ga. App. 217, 100 S. E.

of Howard, and Vick assigns error. 644; Ansley v. Highpower, 120 Ga. 719, 48 S. E. 197; Barnes v. Morrison, 97

On the 8th day of May, 1920, these Va. 372, 34 S. E. 93; Clemmitt v. New

parties entered into a written conYork L. Ins. Co. 76 Va. 355;

Matney v.

tract, signed by each of them, which, Barnes, 116 Va. 713, 82 S. E. 801. so far as material to this contro

Defendant had waived his right to versy, was as follows: "Received demand what the court termed, in the of Levy Vick the sum of one hunonly instruction given, "legal tender."

dred dollars in part payment of that 40 Cyc. 270; 27 R. C. L. 912.

certain lot or parcel of land known When a contract is made requiring the payment of money, tender of cur

as the store and bank building, siturent fund sufficient to discharge

ated (here follows description], and the payment, unless the contract, in

that certain farm known as the 'Neal express terms, requires legal tender Place,' situated [here follows deas the medium of payment.

scription],which I have this day sold 21 R. C. L. § 38; 30 Cyc. 1210; San the said Levy Vick for the sum of Juan v. St. John's Gas Co. 195 U. S. twenty-five thousand dollars ($25,520, 49 L. ed. 304, 25 Sup. Ct. Rep. 108, 000), balance to be paid in ninety 1 Ann. Cas. 796.

days from this date, the said propMessrs. James H. Corbitt and John N. Sebrell, Jr., for defendant in error:

erty to be given possession of at the Defendant had the right to require

time of the payment for the propthe payment of all the purchase price

erty.

I, the said Levy Vick, in legal tender, and to refuse to make

have this day purchased the said a deed unless the money tendered was property upon the terms and condirecognized by law as legal tender, and tions as stated above." informing the jury what was legal The "terms and conditions" retender.

ferred to in the contract are in no 30 Cyc. 1210, note; Miller v. Lacy,

way material to this case. 33 Tex. 351; 21 R. C. L. 49; Burk, Pl. & Pr. 2d ed. p. 363; 2 Benjamin,

On July 31, 1920, pursuant to an Sales, 4th Am. ed. by Corbin, § 1066,

arrangement which had been previnote 11; Legal Tender Cases, 12 Wall.

ously agreed upon, Vick signed and 457, 20 L. ed. 287; Corbit v. Bank of

delivered to the Beaton Realty CorSmyrna, 2 Harr. (Del.) 235, 30 Am. poration the following memoranDec. 635; 3 Elliott, Contr. § 1958; Lang dum: "I hereby assign the within V. Water, 47 Ala. 624; Larsen v. contract to the Beaton Realty CorBreene, 12 Colo. 480, 21 Pac. 498; poration, of Boykins, Virginia, for Martin v. Bott, 17 Ind. App. 444, 46 N.

the sum of fifty-five hundred dolE. 151; Hallowell & A. Bank v. How

lars, to be paid when deed for said ard, 13 Mass. 235; Grigby v. Oakes, 2 Bos. & P. 526, 126 Eng. Reprint, 1420; property is presented.” Bank of United States v. Bank of

In our view of the case it is unGeorgia, 10 Wheat. 333, 6 L. ed. 334; necessary to consider the legal efCheney v. Libby, 134 U. S. 68, 33 L.

fect of the last-mentioned paper. It ed. 818, 10 Sup. Ct. Rep. 498; Decamp is sufficient to say that the real conv. Feay, 5 Serg. & R. 323, 9 Am. Dec.

sideration therefor was $6,000, $500 372.

having already been paid to Vick by Plaintiff cannot recover under any the corporation, and that the true view of the case.

arrangement between the parties Stuart v. Pennis, 100 Va. 612, 42 S. was that the corporation was to E. 667; Thompson v. Guthrie, 9 Leigh,

take over the property at the price 101, 33 Am. Dec. 225,

of $31,000, and was ready and able Kelly, P., delivered the opinion of to do so, thereby affording Vick the the court:

opportunity to make a profit of This is a proceeding by motion in- $6,000 on his purchase from Howstituted by Levy Vick against Rich- ard. As will hereafter appear, nei

31 A.L.R.-16.

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