author: MORROW, P. J.

text:
    STANFIELD v. STATE.
    No. 14150.
    Court of Criminal Appeals of Texas.
    April 22, 1931.

      Edwardine Crenshaw Couch, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for assault with intent to murder; penalty assessed at confinement in the penitentiary for a period of two years.

Sam Stanfield had two sons, namely, George Stanfield and Elmer Stanfield. J. M. Blackwell was a deputy sheriff. He arrested George Stanfield and placed him in jail for drunkenness. Elmer Stanfield approached Blackwell, from whose testimony we quote:

“He (Elmer Stanfield) stopped me and says, ,‘What have you got that boy locked up for?’ I told him because he was drunk. He said, ‘God damn you, he was not drunk.’ I said, ‘Yes, he is and you are too.’ X says, ‘I will just take you down.’ He says, ‘You God damned old gray headed son-of-a-bitch. you can’t take me nowhere.’ Well, then is when the racket started. He just commenced kicking. Then. Sam, his father, run up with a knife. I had a pair of knucks and he says, ‘If you hit him with them knucks, I will cut you in two.’ Well, I hit the boy with the knucks. The boy was drunk. I had arrested this boy. I had hold of him and told him to come on, X would take him.”

“When this trouble came up I did not have a warrant for the boy (Elmer Stanfield). I arrested him for being drunk and he commenced cursing me. There had been no complaint filed. When he asked me for the bond, I took hold of him and told him I was going to arrest him. He struck me and I hit him with my knucks. I hit him before I was cut. I don’t think I hit him but once with the knucks before X was cut. * * * I had never seen Sam that day until he came up there and 'asked me for a- bond. He never made any attempt to fight me when he asked' .me for the bond. * * * The defendant had not said anything to me until then, only to ask me for a bond for his boy, and then the fight started between me and the boy. This was election day and there were a good many people in town.”

Blackwell received a stab wound which entered the abdominal cavity, was considered dangerous, and confined Blackwell in the hospital for about a week. That Blackwell was cut by the appellant was controverted, but the evidence is sufficient to support the finding of the jury that he inflicted the wound. During the altercation the son of Blackwell took part and knocked Elmer Stanfield down. The brother of Blackwell also appeared with a chair prepared for use as a weapon.

Whether Elmer Stanfield was drunk was a controverted question of fact. It was denied by him, and none of the many witnesses who testified in behalf of the state, save the prosecuting witness, stated that Elmer Stanfield was drunk. Elmer Stanfield denied the use of abusive language, and said that he was hit on the head six or eight times with brass knucks and a number of serious wounds inflicted. This was not controverted. There is no description of any conduct of Elmer Stanfield supporting the inference that he was drunk. To establish that fact the state relied alone upon the conclusion of the officer. If Elmer Stanfield was drunk, he was subject to arrest under article 477, P. O. If he was not drunk, the officer was without authority to arrest him. If he was drunk, the arrest was illegal, if excessive force, was used. Article 1212, subd. 8, P. C., and article 241, O. O. P. The instructions to the jury were calculated to lead them to the conclusion that the drunkenness of Elmer Stanfield was proved. The charge should have been so framed as to make plain to the jury that, unless Elmer Stanfield was drunk, his arrest was unauthorized. It is true that in submitting the law of self-defense, the jury were told that if, viewing the matter from his standpoint, the appellant believed that the arrest of his son was unlawful, and that Blackwell was stabbed by the appellant in order to protect his son, there should have been an acquittal. In no part of the charge, however, is there given definite information to the jury by what measure they should determine whether the arrest was lawfpl or not. In that particular the charge is faulty. However, if the evidence were more cogent or conclusive to the point that Elmer Stanfield was drunk, we are impressed that the manner of the arrest cannot be regarded as lawful. The use of the metal knucks in the manner described by the undisputed testimony was manifestly unlawful. If one, not an officer, had possessed the metal knucks on the street and used them in the same manner, he would have been guilty of a felony and subject to imprisonment in the penitentiary for a maximum of five years. P. C. art. 1151. An officer, in the discharge of his duty, has a right to have the metal knucks, but, in the use of them, he is restricted by the statutes mentioned, which demand that his aggression go no further in making the arrest than is reasonably necessary to effect the end. When the officer, in. making the arrest, transgresses such limitation, the right of self-defense inures to the party assaulted, and, in the present case, such right was available to the appellant. That is, he was privileged to repel the attack with sufficient force to avert its threatened consequences, which right was restricted only by the law demanding that he should use no more force than was necessary, as viewed from his standpoint at the time. One making an illegal arrest, or one making an arrest in an illegal manner, is a trespasser, and the extent to which" such an arrest may be lawfully opposed is governed by the law of self-defense. In protecting his liberty or preventing injury to his person, the law sets such a high value upon the liberty of the citizen that an attempt to arrest him is esteemed a provocation such as will reduce the grade of the offense. See Jones v. State, 26 Tex. App. 11, 9 S. W. 53, 8 Am. St. Rep. 454; Ruling Case Law, Vol. 2, p. 474; Alford v. State, 8 Tex. App. 545; Snow v. State, 91 Tex. Cr. R. 1, 237 S. W. 563, 20 A. L. R. 1180; Brown v. State, 87 Tex. Cr. R. 261, 222 S. W. 252; Branch’s Cr. Law, Sec. 437; Lynch v. State, 41 Tex. Cr. R. 510, 57 S. W. 1130; Miers. v. State, 34 Tex. Cr. R. 161, 29 S. W. 1074, 53 Am. St. Rep. 705; Earles v. State (Tex. Cr. App.) 94 S. W. 464; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812.

Because of the matters mentioned we are constrained to order a reversal of the conviction, and will add that the facts in evidence are not deemed such as will support a conviction for assault to murder.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: LATTIMORE, J.

license: Public Domain

text:
    STAUFFER v. STATE.
    No. 14146.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Allen & Wofford, of Taylor, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, five years in the penitentiary.

Appellant’s motion for new trial was overruled on September 30, 1930, and an order entered granting to appellant eighty days in which to file bills of exception and statement of facts. The bills of exception were not filed until December 23, 1930. Same were filed after the expiration of the time granted in said order, and therefore cannot be considered by us.

The statement of facts shows that appellant shot Mrs. Benson some four times with a pistol.. According to the state’s testimony, this shooting followed an assault made upon her by him with his fists in which he bruised her face and body. The record amply supports the motive of jealousy. Mrs. Benson had been going with appellant" some time, but had recently been in company with another man. Just before the shooting • she told appellant that she was through with him. On the trial of this case she took the witness stand and gave testimony in behalf of appellant. The evidence is in the usual condition of conflict; that of the state, however, being deemed amply sufficient to justify the solution of the matter in favor of the state by the jury.

No error appearing, the judgment will be affirmed.


text:
    GABLE v. STATE.

      No. 14314.
    Court of Criminal Appeals of Texas.
    April 22, 1931.

      G. E. Florence, of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully selling intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The indictment is regular and regularly presented. The record is before us without statement of facts and bills of exception.

A new trial was sought upon the ground of newly discovered evidence. Affidavits were attached to the motion in which the purported new evidence was revealed. In the judgment of the court overruling the motion for new trial it is recited that the court heard the motion and the evidence thereon. From this recital the presumption follows that, in overruling the motion, the court acted within its discretion upon sufficient evidence. See Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Harris v. State (Tex. Cr. App.) 35 S.W.(2d) 1046, and authorities cited. We will add, however, that, in the absence of a statement of what evidence was before the court on the trial of the case, this court is not able to determine the cogency or sufficiency of the alleged newly discovered evidence, and must indulge the presumption that, in overruling the motion for new trial, the alleged newly discovered evidence was not regarded by the court such as likely to bring about a different result.

No fundamental error having been perceived or pointed out, the judgment is affirmed.


author: HAWKINS, J. MORROW, P. J. LATTIMORE, J.

text:
    FOWLER v. STATE.
    No. 12985.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    J. Mitch 'Johnson, of San Saba, for appellant.
    Lloyd W.' Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder, punishment being five years in the penitentiary.

In a rural community in San Saba county there lived with their families F. L. Crawford and Jim Isham. Their places were about a mile apart with a neighborhood road running from one to the other. Appellant lived on this road in a small house consisting of one room, with a lean-to kitchen at the back and a small brush arbor in front. On the night of the tragedy out of which this prosecution grew a party was given at Jim Isham’s house. Armand Crawford, a boy about eighteen years old, and his sister, Dorothy, some two years younger, attended the party. When it broke up about 1:30 at night, they invited Douglas Isham and his sister, Louise, to spend the balance of the night at the Crawford home. Douglas was about the same age as the Crawford boy. Louise was eleven years old. The four of them, walking were going to the Crawford home on the road which ran by appellant’s house. The Isham boy and the Crawford girl were walking together, as were the Crawford boy and Louise. Appellant’s house was some ten or twelve steps from the road. As the two couples reached appellant’s house Douglas said, “I wonder if anybody is at home,” and Armand replied, “I’ll pitch a rock over there and see.” He threw a rock on the roof of the house. It rolled down, making considerable noise. The parties continued walking down the road and when Armand and Louise had reached a point some thirty or forty steps beyond appellant’s house, a gun fired from the direction of the house and Louise cried out that she was shot. It was discovered that two buckshot had struck her, one of them inflicting a fatal wound. She was taken to Temple, and operated on, but died four days later. The evidence showed the night to have been a bright moonlight night, and that the young people could have been seen down the road from a point opposite appellant’s house. When it was found that Louise had been shot, her brother went back to appellant’s house and called to him several times. When he came out Douglas asked him what he was shooting at, to which appellant replied that he was shooting at an owl. Upon being advised that he had shot Louise, appellant appeared much disturbed, called to his wife, telling her what he had done, and said he did not even know the young people were anywhere near, and asked Douglas where they were at the time the shot was fired. He pointed out to Douglas where he claimed to have been standing when he fired and where the owl was ,in the tree. He also said they must go and tell Louise’s father about it. He started to her father’s house with his wife and Armand Crawford, but they finally went to the house of the grandfather of the little girl where appellant told him about the same thing he had told Douglas. The testimony of Douglas was that, if appellant had fired at an owl from the position claimed by appellant, he would have been shooting north; that he and the other young people were down the road east. The next morning after the shooting parties went to appellant’s house and he pointed out to them where he claimed to have been standing when he fired the shot and where he claimed the owl was in the tree. In this position he would not have been firing towards where the young people were. These witnesses went down the road and at a point not far from where the little girl was when the shot was fired they found on some small bushes where a shot had cut a limb about four feet from the ground, and bruised another limb about five feet from the ground. According to these witnesses appellant later claimed to have been mistaken as to where he was standing and located himself at another point from which the shot would have gone more nearly in the general direction of where the young people wer'e. Upon the trial appellant claimed that he never heard any rock strike the house, and that that was not what called him out, but that he was attracted by a disturbance among the chickens which roosted in a tree which was over the road that ran by his house; that owls had been bothering them, and that he fired at what he thought was an owl in the tree without knowing that the young people were anywhere about.

Appellant brings forward sixteen bills of exception. We have examined all of them and think none present error, at least not such as called for a reversal, save bills of exception 11 and 12. They may be considered together.

Bill of exception 11 shows that, upon cross-examination of appellant, the state, over objection, was permitted to elicit from appellant that he did not know where the little girl, Louise Isham, was buried, and that he did not attend her funeral. Bill 12 shows that in the district attorney’s closing argument he called the jury’s attention to the appellant’s admission that he did not attend the funeral, and drew the conclusion that the reason was because he had shot Louise with malice aforethought, with a heart regardless of social duty and fatally bent on mischief. This argument was also objected to by appellant’s counsel.

We take the following quotation from McGuire v. State, 10 Tex. App. 125; “Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis, — a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable. What-: ever is a condition, either of the existence or of the non-existence of a relevant hypothesis, may be shown. But no circumstance is relevant which does not make more or less probable the proposition at issue.”

The proposition at issue was whether appellant intentionally killed Louise Isham. Did proof that he failed to attend her funeral carry any probative force making more or less probable the truth of the state’s contention that the killing was intentional? Underhill announces a just and reasonable principle regarding the question to be that, if the relations between the parties were such that accused would naturally attend deceased’s funeral, it may be shown that he did not do so. Underhill’s Orim. Ev. (3d Ed.) § 502. The authorities from different states cited under the text are not uniform in application of the principle announced. The only two cases from our own court bearing upon the point which have come to our attention are Mansell, v. State, 79 Tex. Or. R. 48,182 S. W. 1137, and Washington v. State, 46 Tex. Or. R. 184, 79 ’S. W. 811. Both of them support the proposition that the evidence complained of should have been excluded. We cite the latter case as indicating the trend of this court’s view regarding the question now before us, but do not desire to be understood as approving the holding that similar evidence there was inadmissible. Deceased in that ease was the wife of accused and the relation was such that in our opinion the evidence there complained of was admissible.

The relations between the appellant and the family of deceased were friendly, but no such close association between them was shown as would lend any probative force to appellant’s failure to attend the little girl’s funeral. 1-Ie had already been arrested and knew that he was being charged with the intentional killing of the child. It would appear therefore that appellant had every incentive to remain away from the funeral. 1-Iis presence there would doubtless have subjected him to as severe criticism as his absence drew from the district attorney in his closing argument. The use made in argument of the evidence which we think should not have been received intensified the harm in admitting it in the first instance.

For the error discussed, the judgment is reversed, and the cause remanded.

MORROW, P. J.

(concurring).

Whether the proof that the appellant did not attend the funeral of the deceased was admissible in evidence under the state of the record is doubtful. If the testimony was- not admissible, it cannot be said that the use made of it in argument was not harmful. My associates have divergent views upon the subject mentioned. The legal questions, involved are close to a degree that the accuracy of neither of the conclusions reached by my brethren is, in my opinion, susceptible of demonstration. Under the circumstances, I am in doubt as to what disposition should be made of the appeal, and feel constrained to resolve the doubt in favor of the accused. I therefore concur in the reversal of the judgment of conviction.

LATTIMORE, J.

(dissenting).

I cannot sanction the reversal of this ease upon the shadowy possibility of harm to the accused from proof of his admission that he did not attend the funeral of the child whom he had slain, seemingly in anger because of the childish prank of a group of young folks, one of whom had thrown a rock upon the roof of appellant’s house at night. Immediately after the rock was thrown appellant fired a shotgun loaded with buckshot down the road along which the group were going. The falsity of his story that he shot at an owl in a tree was shown, and his guilt was overwhelmingly demonstrated. The fact that the jury were not prejudiced or inflamed by the evidence or argument complained of, but that they exhibited mercy toward appellant probably because they thought he shot in anger, is clearly demonstrated by the verdict which only inflicted a penalty of five years. It seems almost humanly impossible to avoid slight errors in the conduct of trials of criminal cases, but in cases where guilt is evident, and the law of the ease has been substantially followed, in the opinion of the writer, reversals should not be had.

When appellant was asked if he attended the child’s funeral, the only objection made was that this was immaterial and irrelevant. His attorney did not even think enough of it to object on the ground that it might create prejudice. Under al'l the authorities such an indefinite objection calls for no favorable action by the trial court, and no error was committed in overruling such objection. As said by us in Thompson v. State, 90 Tex. Cr. R. 21, 234 S. W. 401, 405: “A bill of exceptions, so framed as to compel this court to search the statement of facts in order to find out what is therein referred to and meant, is ordinarily held by us insufficient and defective.”

In the argument the district attorney said: “The defendant says he did not attend the funeral of the little girl, and I wonder why— a heart regardless of social duty and fatally bent on mischief.” This was objected to on the ground that there was no evidence before the jury warranting such argument, and that such remarks were inflammatory and prejudicial. Appellant’s counsel did not think enough of this to even ask the court to instruct the jury not to regard it, nor was there any special charge presented so requesting. There was evidepce before the jury to support the argument. That same did not preju-dicially affect appellant’s rights or influence the jury is established by the small penalty inflicted, especially in view of facts surrounding the shooting which were themselves most inflammatory. A mature man in his house in the nighttime, a group of children passing by, one throws a rock on the roof, they pass on a'short distance, a gun fires once from the door of the house, the little girl is shot — appellant explains: “I shot at an owl in a tree.”

The tree indicated is found to be in a different direction from the door than are the children; upon examination not a twig of said tree had been struck by a shot; down the road toward where the child was shot twigs of bushes were found severed. These facts were before the jury in addition to the fact that he shot buckshot at a group of children for no other reason except their indulgence in a childish prank, which proof, together with a false explanation, all so overwhelmingly indicates a heart regardless of social duty and fatally bent on mischief, that, when it appears that a penalty of only five years has been inflicted, it is.difficult to believe that any substantial ground exists for the supposition that the argument inflamed or prejudiced the jury. In the opinion of the writer such contention is wholly insufficient to call for a reversal of this case.

I most respectfully record my dissent.


author: CALHOUN, J.

text:
    GREEN v. STATE.
    No. 14157.
    Court of Criminal Appeals of Texas.
    April 22, 1931.

      Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, murder; penalty, four years in the penitentiary.

This is the second appeal by the appellant The former appeal of this case is reported in (Tex. Cr. App.) 23 S.W.(2d) 376.

Appellant was tried and convicted for the murder of his wife. On the late afternoon of September 11,1928, neighbors passing the residence, heard a number of shots fired, and heard appellant cursing and using language which indicated that he and his wife were having a row. One of the witnesses testified that after he heard the shots, he saw the appellant come out on the north gallery; that he had a six-shooter in his hand and looked like he was loading it; that he had it breached; that he had heard some shots just before that; that he heard two shots and in just about a minute or so heard three more, just in a few seconds of each other; that he heard a voice in the house that sounded like a woman’s voice; that he could not possibly state what was said at that time by the voice inside the house; that he heard the appellant say, “I would if you would help. You won’t help me” ; that he thought the woman’s voice said, “You cursed me” or “You was cussing me,” or something to that effect, and that he heard the appellant then say, “you are a g-d- liar”; that the appellant then told the people there, “You all get out and away from here, don’t bo hanging around here”; that what he understood the appellant to say was, “You g-d-b-s, get out from here and don’t be hanging around here.” Another witness testified that when he heard the shots, appellant came out.on the porch; that he had a -gun in his hand, and that it was a pistol, and that he threw some cartridges out of it; that when he came up to the house appellant’s wife told him to get a doctor, that she was shot; that she was standing then in the eave of the porch, right on the porch in the east door; that the appellant told his wife, “Go back in the house,” that he would get her a doctor; that he believed the appellant used a curse word in connection with that, that he said “dammit”; that appellant then made the remark, “You s- b-s, you get away from here.”

The deceased was shown to have received a pistol wound through the abdomen.

Appellant defended on the ground that the shooting was an accident. The testimony introduced by him tended to show that one George Eisher had come to his house that afternoon to trade for a pistol; that he claimed it would not shoot; that he (appellant) was drinking and shot it three times in the house to demonstrate to the intending purchaser that it- was in good condition, and that his wife, hearing the shooting, came unexpectedly into the line of fire, and accidentally received the wound which caused her death. It is shown that appellant went for his mother in a car, and that, accompanied by his mother and brother, he took his wife immediately to Strawn, a distance of some five or six miles, to a sanitarium, where she died about forty-eight hours later. Witnesses also testified to the fact that appellant and his wife seemed to be devoted to each other. Appellant also proved by Dr. Pettigo, the attending physician at the sanitarium, that immediately upon the arrival of the deceased at the sanitarium she stated to him that the shooting was an accident. The mother of the appellant also testified that deceased told her after the shooting, “Mat wasn’t shooting at me. He shot me accidentally.”

There are three bills of exception in the record.

By bill of exception No. 1, appellant complains of the refusal of the court to give his special charge, as follows: “If the defendant was discharging his pistol in one room of his residence, and if his wife suddenly dashed in front of the range of the bullets and received one of the shots, with no intention on defendant’s part to shoot her, or if you have a reasonable doubt as to whether or not the shooting occurred in this way, you will give the defendant the benefit of such doubt and acquit Mm of the charge of murder, contained in the indictment.”

Paragraph 15 of the court’s general charge reads as follows: “If you find and believe that the defendant shot and killed the deceased, but find that said shooting, by the defendant, of the deceased, was not intentional, but was accidental, and further find that such accidental shooting does not make the defendant guilty of negligent homicide as above defined, or if you have a reasonable doubt thereof, you will acquit the defendant, and say by your verdict not guilty.”

It will be seen from said charge that the court charged directly on this issue, and no material difference is seen in the charge refused and the one given, especially in the light of the charge as a whole. The trial court submitted, not only negligent homicide of the first degree, but also accidental shooting.

Bill of exception No. 2 complains of the fifth paragraph of the court’s main charge in which he defined the term “malice aforethought,” and especially to that portion of paragraph 5 in which the court used the following language: “Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify or excuse the homicide,” because said paragraph of said definition is too restrictive, and is prejudicial to the defendant’s rights as applied to the facts of this ease.

The definition of malice aforethought as defined by the court in this ease was before this court in the case of Claxton v. State, 109 Tex. Cr. R. 345, 4 S.W.(2d) 542, in which it was held that the definition of malice aforethought as defined and explained in this case did not constitute reversible error, and cites the case of Collins v. State, 108 Tex. Cr. R. 72, 299 S. W. 403, in support of said holding. In construing a'definition in the court’s charge, a portion of said definition should not be considered as a distinct and individual enunciation, but it must be considered with what precedes it and what follows it, and the whole taken together must be considered as an explanation by the court of the meaning of the term.

By exception to the charge the appellant complains of the failure of the court to instruct the jury, in substance, that, while there was evidence before them of a previous trial, there was no evidence of the result of the former trial, and the result was a matter with which the jury had no concern; and that, if any member of the jury was aware of the result of the former trial, he should refrain from communicating it to any other juror, and should also refrain from considering it against the accused in performing his duty as a juror. The court gave no written charge upon the subject, tout verbally admonished the jury, in substance, in accord with the request mentioned. The exception to the charge was tantamount to a request that the jury be instructed upon the subject embraced in the exception. The court was not in error in refusing to comply with the appellant’s suggestion that the matter mentioned be embraced in a written charge to the jury; nor was the court under any obligation to mention the matter to the jury. The record presents no evidence which demanded of the court a charge on the subject of the former trial. It is difficult to perceive, however, the force of the appellant’s contention that there should be a reversal of the judgment because of the verbal admonition given the jury upon the subject as heretofore quoted in substance. By the remarks of the court, the jury was given, in substance, that which the appellant demanded, but which the court was under no obligation to give. The court has held that such admonition is not a part of the court’s charge. See Winfield v. State (Tex. Cr. App.) 54 S.W. 584. The matter mentioned, however, can hardly be regarded as a charge to the jury, but, whatever it may be called, it was simply a compliance with the appellant’s request, and cannot be regarded as ground for a reversal of the judgment.

The case was fairly tried, and, even though the evidence established a state of facts upon the effect of which minds may differ, the jury failed to accept appellant’s version of the matter, and, the verdict having received the sanction of the trial court, we see no reason to disturb it.

The judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: CHRISTIAN, J.

text:
    Ex parte WIGGS.
    No. 14395.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    E. B. O’Quinn, of Marfa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN, J.

After a bearing on a writ of habeas corpus, relator was remanded to tbe custody of tbe sheriff. Hence this appeal.

Relator was convicted in tbe county court of Brewster county on April 9, 1930, on a complaint and information charging him with tbe offense of swindling. On tbe 16th day of tbe same month motion for new trial was overruled and notice of appeal given. In an opinion by this court delivered February 18, 1931, judgment of conviction was affirmed. In affirming tbe judgment, this court expressly held that tbe information upon which tbe conviction was based was sufficient. See Clarence Wiggs v. State of Texas, 36 S.W.(2d) 765, delivered February 18, 1931. Motion for rehearing being filed, this court, in an opinion delivered March 25, 1931, overruled tbe motion. See opinion on motion for rehearing, Clarence Wiggs v. State of Texas, 36 S.W.(2d) 765, delivered March 25, 1931. On tbe 27th day of March, 1931, this court duly issued its mandate to tbe county coprt of Brewster county, and thereafter, on tbe 2d day of April, 1931, tbe clerk of tbe county court of Brewster county issued a capias pro fine for the arrest of relator. On tbe 4th day of April, 1931, relator made application to tbe judge of tbe county court of Brewster county for a writ of habeas corpus. Tbe writ having been awarded, tbe sheriff answered that relator was held under a capias pro fine issued by tbe clerk of tbe county court after tbe mandate from this court bad been received.

Tbe specific contention of relator is that tbe complaint and information failed to charge an offense, and that, therefore, tbe county court was without jurisdiction to render judgment against him. As hereinbefore stated, tbe complaint and information were held sufficient by this court on tbe appeal from the judgment of conviction. Relator now seeks to use tbe writ of habeas corpus to appeal from tbe judgment this court has already affirmed. A writ of habeas corpus cannot serve tbe purpose of an appeal. Branch’s Annotated Texas ’ Penal Code, sec. 239; Ex parte Wells, 111 Tex. Cr. R. 443, 14 S. W.(2d) 1027; Ex parte Evans, 109 Tex. Cr. R. 231, 4 S.W.(2d) 67; Ex parte Burford, 70 Tex. Cr. R. 281, 156 S. W. 686.

Tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe Judges oí tbe Court of Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    MUNOZ et al. v. STATE.
    No. 14281.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    ' F. G. Garza, of McAllen, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   HAWKINS, J.

Conviction is for murder, punishment being assessed at death.

Appellants are convicted of killing Bert Ellison, a federal customs officer. On tbe night of tbe 9th of October, 1930, a dance called a “báile” was in progress. Deceased and other officers were in tbe vicinity for tbe purpose of ascertaining if any violations of tbe law were being committed. Deceased and one Clark, another officer, separated, following different trails into tbe brush. Within a short time after they bad separated, some eight or more shots were beard. Clark called deceased’s name but received no response. Coy, another officer, joined Clark and they found Ellison’s body. His pistol bolster was in bis pocket, but the belt and pistol were gone, as was also a flash-light which he hacl been using. Some empty 32-caliber shells were found near the body. Deceased had been shot a number of times. No necessity arises for describing the various wounds.

The two appellants, Munoz and Victor Rodriguez, were jointly indicted with Jose Maria Lopez. Appellants asked a severance from Lopez, which was granted. Appellants were jointly tried and each entered a plea of guilty after proper admonition from the court. The state introduced in evidence a written confession from each appellant, in which the circumstances leading up to the killing of Ellison and of the killing itself are fully stated. We condense the salient facts. A short time before the killing the wife of Margarito Rodriguez had been deported to Mexico. This had angered Margarito especially against the officers instrumental in bringing about the deportation, but seems to have extended in general to all officers. Margarito had communicated his desire to kill officers to his brother Victor, also to Munoz and Lopez. It is not disclosed whether deceased was in any way connected with the proceeding which resulted in sending the wife to Mexico. On the night of the homicide, Lopez, Munoz, and Victor Rodriguez and Margarito Rodriguez were in the brush some two hundred yards from where the “baile” was in progress. They knew officers were in the vicinity. They stationed themselves on a trail; Margarito said to the others they would kill the first officer who came along there that night. He directed that Lopez and Munoz should grab the officer by each arm and that he and Victor would shoot him. Ellison was the unfortunate officer to first pass; according to the confessions, the murder was carried out exactly as had been planned. When the officer was caught from behind by Lopez and Munoz, he dropped his flash-light and tried to draw his gun, but was prevented from doing so by those holding him, and was shot to death by Margarito and Victor, each of whom used a 32-caliber pistol. They then took the officer’s pistol, belt, and flash-light and left the scene of the killing. The next day Victor and Margarito learned that officers were looking for them; they sought to escape, and when about to be overtaken they commenced a gun battle with the officers, in which Margarito was killed and Victor wounded.

No bills of exception are brought forward. Appellants filed a motion for new trial in wMch, among other ,tMngs, they aver that the testimony given by Santiago Rodriguez, a witness for the state, was untrue. Santiago was a brother of Margarito and Victor. Attached to the motion is the affidavit of Santiago recanting his testimony as given on the trial. His testimony in substance had been that he was near the scene of the killing and recognized Munoz and Lopez and heard Munoz say, “Now Jose Maria,” and saw them catch some one by the arms and then heard some shooting; that he also after the shooting recognized his brother Margarito as one of those present, but did not recognize his brother Victor as one of the parties, hut learned later that he was also present. In his affidavit Santiago says he was not at the scene of the killing, but was at the “baile”; that he heard the shots and later was told by Munoz to say that he was present when Ellison was killed; that his testimony as to what he saw and heard at the time of the killing was not true, but that he was told by the officers it would be best for him to say he was present. The state controverted the things averred in the motion, and the court’s order overruling it recites that, he heard evidence thereon, and concluded the motion should be overruled. No evidence heard on the motion is brought before.us. We must therefore presume it supported the court’s ruling.

Even if the affidavit of Santiago should he given effect as speaking the truth, it only goes to the point that he knew nothing about the killing. It contains no affirmative statements of benefit to either of appellants. In view of - their pleas of guilty, their confessions in detail as to the crime, the evidence of each of them given on the trial that they had not been induced to make their confessions by-any promises or inducements from any one,- and all the other evidence, leads us to the conclusion that no error appears in the record' which would authorize or justify this court in disturbing the verdict.

The judgment is affirmed.


author: MARTIN, J. MORROW, P. X

text:
    BARTLETT v. STATE.
    No. 13605.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1930.
    State’s Rehearing Denied May 6, 1931.

      .Bunnenberg & Nelson, of .Wichita Palls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MARTIN, J.

'Offense, assault to rape; penalty, five years in the penitentiary.

Appellant -at the time of the alleged commission of the offense was a deputy United States marshal residing in the town of Wich- ' ita Palls, and had an office in the basement of the court house. He was at this time sixty-two years old. The prosecutrix was a child about seven years old, who testified in substance. that appellant took her to his office in the daytime and there assaulted her. Her stepmother, Mrs. Williams, and others testified to a recent complaint made by prosecu-trix. The appellant introduced the sister, grandmother, and other blood relatives of prosecutrix, who testified to the bad reputation of her stepmother for truth and veracity and to other facts tending to support the appellant’s theory that her stepmother was the instigator of the charge against appellant. The county 'health officer, a physician, was introduced by appellant as a witness, who testified he made an examination of the private parts of the little child alleged to have been assaulted a short time after the alleged assault, and found no bruises, lacerations, or indications of an assault. Appellant denied in toto the transaction, claiming that Mr. White, at whose house the stepmother and the little child boarded, was an applicant for his position. Other testimony was introduced showing the surroundings at the place of the alleged assault which tended to prove it not reasonably probable that a man would assault a child at such place.

The evidence is such as to make appellant’s 'guilt gravely doubtful. Considering this record as a whole, we regard the evidence as meagerly sufficient, if at all, to support the conviction. In view of this state of the record, we think the following shows error, which may have turned the scales against appellant: The father of the little child was permitted to testify in part over objection that appellant came to where he was some week or so after the alleged rape and spoke to him, to which he answered: “I am an invalid and seems like the world knows it, ■they have taken advantage of me.” The district attorney, over objection, was permitted to state to the jury that the child’s father was “a man with a broken hand and paralyzed and wholly unable to defend himself or the honor of his family.” The testimony was clearly inadmissible, and tended to prove no issue in the case, and its effect plainly was to create prejudice against appellant, particularly so in connection with the comments of the ’ prosecuting attorney, recited above. For this error, the judgment is reversed, and cause remanded.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

HAWKINS, X, absent.

On State’s Motion for Rehearing.

MORROW, P. X

The state contends that the judgment should be affirmed. In passing upon the motion, a more comprehensive statement of the evidence than that contained in the original opinion is deemed necessary. In the afternoon of Saturday, August 10, 1929, the appellant, sixty-one years of age, in company with his wife, took their son, Travis, twelve years of age, to a barber shop, after which they proceeded to the home of Mrs. White, where Mrs. Bartlett remained. Bartlett requested and received permission to take Tempie Ma-lrota Williams and her eight year old stepsister, Govey Howard, together with Travis Bartlett, to a picture show. The Williams family and the prosecutrix were residing at the time at the home of Mrs. White. Touching what followed, the testimony of the pros-ecutrix is in substance this: Before going to the picture show, the children and the appellant went to the courthouse and entered the office of the appellant, which was situated in the basement. The appellant was a United States deputy marshal, and occupied as an office a room in the basement of the courthouse. After leaving the barber shop, Travis accompanied Govey Howard to the picture show. Prom the testimony of the prosecu-trix we quote:

“When we went in Mr. Bartlett’s office he locked the door and then he put me in one chair and stated that it was too high and then put me in another chair and stated that was too low, and then he laid me on the bed. When he put me in the chair he did something else with his trousers. He unbuttoned them. I was wearing little blue bloomers that, day. There was something done with them. He took one leg off, Mr. Bartlett did. Mr. Bartlett took one leg of my bloomers off. 'I know what a man’s privates are. Its that thing down between his legs. He had that out and I saw it. While that was going on someone came to Mr. Bartlett’s room. I do not know who it was. It was a man. Mr. Bartlett just talked about some business. That was while I was in the chair. Before this man came in he had to unlock the door. He buttoned his pants up before he unlocked the door. I don’t remember what this man and Mr. Bartlett talked about. This man left the office after awhile. When this man left Mr. Bartlett shut the door and laid me on the bed. There was a little cot in Mr. Bartlett’s office. After he laid me on the cot he finished it. He laid me on the bed and he was on top. He unbuttoned his pants and he, took out his thing he’s got down between his legs. My bloomers were just pulled down. Mr. Bartlett put this thing between my legs, right close to that little place between my legs. It was touching it. He moved it up and down. It mashed me a little bit and I was sore a little bit. He kept on doing that just a little while. Then he got some shirts and told us to wipe ourselves. I wiped myself. I wiped some little sticky white stuff off.
“I had not seen anything like that before. He wiped with the shirt just what I did, that thing he had down between his legs. We then went to the picture show. While we were down there Mr. Bartlett told me not to tell any one. He didn’t say why not to tell it; he just told me not to tell._ He didn’t say anything about anybody being in the other office, about some officers being out there. He told me not to scream or holler for there were some officers in the other room. He did not say what they would do.
“I told Jack about this, and I told Govey. Govey told mother. I talked to her and told her. I told daddy. Mother told Mrs. White and I was there. I talked to Mrs. White at the same time. • I told mother and daddy and Mrs. White the same day in the morning that I came over and talked to his man. When we girls over there got up in the morning we took a bath. Me and Jack and Govey all bathed together. All three of us bathed that morning but that was not the time I told Jack and Govey.”

Mrs. J. E. Williams, the stepmother of the prosecutrix, testified that in the afternoon of the day mentioned the appellant, with her consent, left the home of Mrs. White with the prosecutrix and her sister Govey to go to a picture show, and returned with the children at about 6 o’clock that evening. About a week thereafter she had a conversation with the prosecutrix, “which conversation had something to do with what happened on the previous Saturday. She accused someone of doing something to her.” This was immediately communicated to the husband of the witness, the father of the prosecutrix, in the presence of the prosecutrix and Mrs. White.

Mrs. White testified that on the day of the appellant’s arrest she heard a conversation in which the prosecutrix said that something had happened to her. Mrs. Williams was present.

Richardson, a constable, gave testimony for the state. He said that on the day in question he entered the office of the appellant on business and saw a little girl sitting in a chair, where she remained during a short conversation between the appellant and the witness. Erom this witness the following appears: The constable’s office was originally one large room. The United States deputy marshal’s office was carved out of the room by a thin partition of beaver board or sheet rock. There were two doors to this office. One door opened to the street and the other opened into the constable’s office. A light usually burned in the marshal’s office. There were windows with frosted glass. After conversing with the appellant, the witness stepped into his own office about four feet from the door while waiting for a man with whom he had an appointment, and remained there for a few minutes. While standing there, Bartlett opened the door and asked Richardson if Travis had been ’seen in the appellant’s office. From Richardson’s testimony we quote: “He came out of the office just as I did. I recall him saying as I stepped out of the office, he said, T want to find my boy,’ * ⅜ * and j believe he went down towards the hall.”

The witness said further: “As I recall it, he came out of the office with me. I don’t know where he went after that.” ■ .

The witness said that the wall was covered on either side with sheet rock; that it was not a substantial wall,' 'but was what he would call a “make-shift.”

Govey Howard, a state’s witness, testified that she went to the barber shop together with her brother Odie and Mahota, riding With the appellant in his car. She and Odie got out of the car near the barber shop and left Mahota and Mr. Bartlett in the car. Appellant told them to go to the picture show, which they did, and, after waiting a good little while, Mr. Bartlett and Mahota came. After their arrival, the children went to the show, and Mr. Bartlett returned to the office. The witness, after waiting a short time for Travis, came straight from the barber shop to Bartlett’s office with Travis, who talked to his father. There was a man there whom the witness did not know.

The appellant’s testimony was in substance as follows: On the occasion in question, he took in his car the two girls (Mahota Williams and Govey Howard) and his son, Travis, who was left at a barber shop. After they reached a point on the way to the picture show, Govey got out of the car to go with Travis to the barber shop. Mahota remained in his car and went with him to his office. Passing through the constable’s office, the appellant entered his own, leaving the door open. Richardson came in at once. After a conference with the appellant, Richardson stepped out of the door, which the appellant had not closed. Appellant then followed out and inquired for his boy, Travis, and was told by Richardson that he had seen Travis pass. After learning from Richard'son that Travis had passed, the appellant left in two or three minutes, taking the little girl with him to the picture show. Appellant and Mahota reached the picture show about the same time that the' other children arrived there. The appellant then got tickets for them, and they went into the picture show. He returned to his office. The children came back to his office about 6 o’clock, and he took them home. Appellant denied categorically all the matters about the assault. He testified that the records of the marshal’s office showed that Mr. White had applied for the position which he (appellant) occupied.

It appears that an investigation was made by the federal government and affidavits taken from persons cognizant of the facts. One of these, dated about nine days after the alleged transaction, was that of Travis Bartlett, in which he went into some detail, and was to the effect that, after leaving the barber shop, he joined Govey Howard and went to the office of the appellant, where he observed his father, the prosecutrix, and a .man. From there he went immediately to the picture show. He was met there by his father (the appellant), who had Maliotd with him. The witness, his father, and Mahota reached the picture show about the same time. This affidavit was introduced in evidence. He gave testimony on the trial to the same effect.

Several witnesses testified that the reputation of the state’s witness, Mrs. J. E. Williams, for truth and veracity was bad. One of these was Mrs. Hash, the full-blooded sister of Mahota Williams. After the death of her mother, the witness had been in the attitude of a mother to the child. Eater, her father married Mrs. Williams, who assumed control of the child; that she had had a conversation in which she (Mrs. Hash) asked her about the occurrence. This was after the prosecution of the appellant had begun, and inquiry was made of the child touching it. The child said: ‘‘Sister, don’t ask me. I don’t want you to ask me. Sister, I don’t know; don’t ask me. I don’t want to talk about it.”

The witness admitted on cross-examination that she did not like Mrs. Williams; that she had lived in her household, but that she hard a right to hate her because she had lied about the witness.

B. E. Williams, a brother of the father of the prosecutrix, testified that the general reputation of Mrs. J. B. Williams for truth and veracity was bad; that she had refused to allow the blood relatives of Mahota to see her; that she had refused to allow the witness to see her. He said that he did not know the appellant personally, but he knew Mrs. Williams well enough to believe that “she is the head of the thing.” “I mean that she has enticed this little girl to say this.”

Mrs. Allie Martin, sixty-one years of age, mother of J. E. Williams, sa-id she left her daughter-in-law intentionally; that the general reputation of Mrs. J. E. Williams for truth and veracity was bad; that she was not worthy of belief upon oath.

Another witness testified that she had washed the shirt and clothes worn by the appellant ; that they had been examined by her ; that they exhibited no evidence of discharge.

A doctor testified that he examined Mahota Williams under the direction of the district attorney and in the presence of a nurse, while the girl’s father and stepmother were in the adjoining room. His conclusions were in the following words: “I found absolutely nothing as a result of the examination. I did not find any evidence of penetration. I did not find any abrasion or bruises. I did not find any physical marks. I did not find any evidence of soreness or stiffness. I did not find any evidence of inflammation of any sort. I found the hymen intact. After I made my examination I called the district attorney’s office and told him what I had found.”

The essential elements of the offense of rape are the carnal knowledge of a woman without her consent, obtained by force, threats, or fraud; or the carnal knowledge of a woman without the mental capacity to consent; or the carnal knowledge of a girl below the age of consent. Article 1188, P. C. 1925.

Assault to rape is thus defined: “If any person shall assault a woman with the intent to commit the offense of rape,” etc. Whether an assault with intent to have carnal knowledge of a girl under the age of consent could come within the purview of the statute denouncing the offense of assault with intent to rape was long a question upon which the members of this court were not in harmony. In Hardin’s Case, 39 Tex. Cr. R. 426, 46 S. W. 803, it was held that such an act did not come within the purview of the .statute. Presiding Judge Hurt wrote the majority opinion; Judge Davidson concurring and Judge Henderson dissenting. Subsequently, after the death of Judge Henderson and the retirement of Judge Hurt, a contrary view was expressed by the majority composed of Judge Brooks and Judge Ramsey in the case of Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129. Upon rehearing, Judge Cobb, who was specially appointed, wrote the opinion of the court reversing the conviction, but, as to the existence of the offense, used in substance the following language: '

“If an adult male takes hold of a female under the age of eighteen years and handles her in such manner as under the circumstances of the particular case demonstrates a present intent to at once so subject her to his will, she consenting or not, as that he may then at the very time have carnal intercourse with her, he would be guilty of an assault with intent to rape.
“On the other hand, if such person so takes hold of such female for the purpose only of kissing her or fondling her, having no intent to have carnal knowledge of her at the very time, he would not be guilty of assault with intent to rape. There must be such force used in connection with the circumstances of the case to establish beyond a reasonable doubt the purpose of the defendant to at the very time have carnal knowledge with the female in question, with or without her consent, regardless of how slight said force may be.” ‘

See Huebsch v. State, 94 Tex. Cr. R. 464, 251 S. W. 1079.

Presiding Judge Davidson agreed to the reversal of the Cromeans Case, but held to the opinion in the Hardin Case, supra. Since the Cromeans Case, 59 Tex. Cr. R. 611, 129 S. W. 1129, was decided in 1909, the court has regarded the conditions just quoted as defining an assault with intent to rape. The question therefore arises, Do the facts adduced in the present instance show an assault with intent to rape as that offense is defined in the Gromeans Case, supra, and the subsequent announcements of this court? See Thompson v. State, 82 Tex. Cr. R. 524, 200 S. W. 168; Carter v. State, 87 Tex. Cr. R. 299, 221 S. W. 603; Robat v. State, 91 Tex. Cr. R. 468, 239 S. W. 966; Lynch v. State, 102 Tex. Cr. R. 639, 279 S. W. 271; Enfield v. State, 94 Tex. Cr. R. 227, 250 S. W. 162; Mooring v. State, 90 Tex. Cr. R. 129, 234 S. W. 70; Price v. State, 90 Tex. Cr. R. 534, 236 S. W. 722; Huebsch v. State, 94 Tex. Cr. R. 461, 251 S. W. 1079.

Whether the appellant made an assault of any character upon the child is controverted by very cogent evidence coming from witness1 es for both the state and the appellant. The circumstances surrounding the accused and set forth by the uncontroverted evidence are calculated to throw much doubt upon the ac1 curacy of the statement of the little girl. The assault is charged against a man sixty-oné years of age, holding at the time an important government position, and, so far as the record shows, had led a blameless life. The place of the alleged offense was an office accessible to the public ’from the street and through an improvised partition wall separating his office from that of the constable, a public officer. The partition was one through which voices could be heard. The time was in the middle of the afternoon. The testimony of the state’s witness Richardson to the effect that he and the appellant left the office at the same time coincides with the testimony of the appellant and his witnesses that but a few moments elapsed from the time the little girl entered the office until she departed. Some of the witnesses used by the state gave testimony to the effect that the appellant and the little girl reached the picture show about the same time that the other children arrived at the same point. Assuming that the appellant was guilty of indecent familiarity with the child, that the proof shows an attempt to commit rape is open to serious question. If the little girl’s testimony be true, the appellant was in his room with the door locked. She was making no protest. Prom her testimony, no reason appears why the appellant should have desisted if, in fact, he had the intent of going to the extent which the law demands in defining an assault to rape. The little girl was not injured. She went with the appellant to the picture show, and was happy with the other children, and returned to her home. According to the state’s witnesses, Mrs. Williams and Mrs. White, the prosecutrix revealed the occurrence about a week after it took place. Mrs. Williams admitted in her testimony that she had instructed the girl no.t to talk about the matter. The testimony of one of her relatives was such as to suggest that the child was under the dominion of Mrs; Williams (her stepmother) to a degree that the child protested against making'any recital of it to her own sister.

On cross-examination the child displayed an absence of knowledge of things that a child of her age might be expected to know. The reputation of Mrs. Williams for- truth and veracity was impeaclied. She did not declare that she found upon the girl any physical evidence which would demonstrate an assault such as the law contemplates in defining an assault to rape. At the time of the alleged assault, Mrs. Williams was living at the home of Mrs. White, and, according to the evidence, Mrs. White’s husband was seeking t'o supplant the appellant in the official position which he held. The ex parte testimony of the appellant’s youthful son (who was with the other children at the picture show), and which evidence was taken by an agent of the government a few days after the alleged occurrence, coincides with that of the appellant and the state’s witness Richardson, going to show that the little girl was in the appellant’s office but a very short time, and also coincides with the appellant’s explanation of the separation' and reunion of the children. It further coincides with the appellant's testimony to the effect that three children were in his automobile; that two of them accompanied the appellant’s son to the barber shop and from there to the picture show, • leaving the little girl with the appellant, and that the children and the appellant all reached the picture show at about the same time.

It is the opinion of the writer that the record fails to show a state of facts which would support a conviction for an assault with intent to rape, and that the little girl’s testimony, if true, would support no greater offense than that of aggravated assault. “The intent to commit rape at the immediate time is deemed an imperative necessity. As said by Judge Oobb, the handling of the female must be such as ‘under the circumstances of the particular'case demonstrates a present intent to at once so subject her to his will, she consenting or not, as that he may then at the very time have carnal intercourse .with her.’ ‘If, on the other hand, he takes hold of her for the purpose only of kissing her or fondling her, having no intent at the very time-to have carnal knowledge with her,’ the offense is not an assault to rape.”

Illustrative cases are the following: Thompson v. State, 82 Tex. Cr. R. 524, 200 S. W. 168; Blackstock v. State, 91 Tex. Cr. R. 106, 237 S. W. 282; Stoker v. State, 93 Tex. Cr. R. 24, 245 S. W. 444; Huebsch v. State, 94 Tex. Cr. R. 461, 251 S. W. 1079; Lynch v. State, 102 Tex. Cr. R. 638, 279 S. W. 271.

There are criticisms of the charge of the court. While not prepared to approve the charge, a. discussion of it is deemed unnecessary in view of the opinion hereinabove. expressed. Suffice it to say that we assume that upon another trial (if one be had) the charge will be in a different verbiage.

The state’s motion for rehearing is overruled..


author: BARGUS, X

text:
    KELSEY v. LIETZ et al.
    No. 1043.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1931.
    Rehearing Denied April 30, 1931.
    John W. Craig, of Dallas, for appellant.
    Y. W. Holmes, of Comanche, for appellees.
   BARGUS, X

Appellees X C. Lietz and W. C. Kohlhorst recovered judgment in the district court of Comanche county on May 25, 1920, against Arthur Kelsey and other defendants not necessary to name, for the sum of $3,09S.13. On February 16, 1930, said appellees filed an affidavit and bond in garnishment, in which they gave the style and number of the cause in which same was rendered and the date thereof and the amount, and stated that “said judgment is still in force and unsatisfied.” They had a writ of garnishment issued against the Mercantile Bank & Trust Company of Texas, a corporation, with its domicile in Dallas county. The writ commanded said garnishee to answer what effects, if any, it had in the name of Arthur Kelsey, Arthur C. Kelsey, or C. Arthur Kelsey. The garnishee answered that it did not have any funds in the name of any of said parties, except that there was on deposit with it $243.96 in the name of C. A. Kelsey. C. A. Kelsey replevied said money, and then intervened in'this suit, and filed his motion to quash the affidavit and bond in garnishment for eight different reasons. The appellees named above, by a supplemental pleading, alleged that Arthur Kelsey named in the original judgment and C. A. Kelsey were one and the same person. The trial court overruled C. A. Kelsey’s motion to quash the garnishment proceedings, and entered judgment' against C. A. Kelsey and his bondsmen for the amount of funds that had been impounded in the garnisheed bank and which had been replevied by C. A. Kelsey. C. A. Kelsey alone appeals.

There is no statement of facts filed with the record; neither is there any findings of fact by the trial court, none having been requested. Appellant does not present any assignments of error, and there are no propositions in his brief. His sole contention is that the judgment of the trial court is fundamentally erroneous, and that same so appears from the face of the record. We do not think there is any fundamental error apparent of record which authorizes or would justify the court in reversing the judgment of the trial court.

In his brief, appellant sets out in hsee verba the eight grounds contained in his motion to quash the affidavit .and bond in garnishment, and discusses all of them together. Appellant contends that the service of citation on the cashier of the garnishee bank was not sufficient, because the cashier of a banking corporation is not one of the persons named in the statute upon whom service could be had. Almost this identical question was decided adversely to appellants’ contention by the Commission of Appeals in First National Bank of Athens v. Guaranty Bond State Bank of Athens, 23 S.W.(2d) 312. As was said in the cited ease, the service might not have been sufficient to support a judgment by default, but, the garnishee having answered and the defendant having contested the sufficiency of the service, the court was authorized to ascertain from the facts whether the bank had been legally served. There being no statement of facts and the issue having been ■raised in the trial court, it is presumed the court had before it sufficient facts to authorize it in holding that the service was legally sufficient.

Appellant further contends that the affidavit for garnishment was fatally defective, in that it did not allege that the plaintiffs in that court had a “valid and subsisting judgment.” The affidavit gave in detail the date of the judgment, the number of the cause in which it was rendered, name of the parties, plaintiff and defendant, the amount thereof, and stated that said judgment was still “in force and unsatisfied.” In Patton v. Crisp & White, 11 S.W.(2d) 826 (error dismissed), the Court of Civil Appeals held that an assignment presenting a similar question was too general in its nature to require any consideration.

We have, however, considered said contention, and think the allegation contained in said affidavit was sufficient as against the general demurrer, and that the motion, to quash the affidavit and bond by reason of said alleged defect was properly overruled. Article 4076 of the Revised Statutes authorizes a garnishment to be issued (3) where the plaintiff has a valid subsisting judgment and malges affidavit that the defendant has not, vñthin Jiis knowledge, property in his possession within this state, subject to execution, sufficient to satisfy such judgment. (Italics ours.) The plaintiffs below in their affidavit having set forth in detail the judgment which they had, and having stated that said judgment was still in force and unsatisfied, is, we think, a sufficient allegation that said judg- ■ ment was “valid and subsisting.”

Appellant further contends that, since the original judgment was rendered against Arthur Kelsey, the writ of garnishment was not sufficient to impound funds belonging to him (C. A. Kelsey). Appellant, as a defendant in original suit, having replevied said fund, is now estopped from denying that he was not the defendant Arthur Kelsey, or that the funds did not belong to him. Davis v. McFall (Tex. Civ. App.) 168 S. W. 453 (error refused); Houseman v. Guaranty Securities Co. (Tex. Civ. App.) 293 S. W. 304. The judgment of the trial court states that it found that Arthur Kelsey and the appellant C. A. Kelsey were one and the same person.

We have carefully examined the entire record, and, finding no reversible error, the judgment of the trial court is affirmed.


author: GALLAGHER, C. J.

text:
    KOHN et al. v. ZALUDEK.
    No. 1048.
    Court of Civil Appeals of Texas. Waco.
    April 9, 1931.
    Rehearing Denied April 30, 1931.
    Archie D. Gray, of Waxahachie, for appellants.
    Everett L. Looney, of Austin, for appellee.
   GALLAGHER, C. J.

This suit was instituted in the justice court by appellee, Charles Zaludek, against Joe Kohn, John Kubin, and Erank Kohn to recover on a note executed to him by appellants for the sum of $95.04, with interest and attorney’s fees as therein stipulated. An appeal from the judgment rendered therein was taken to the county court. On the trial in the latter court appellee filed a written petition in due form. Appellants pleaded orally as follows: “Express release and discharge from said note for $95.04 and the assumption by one John Toth of said note and novation contract.” Appellants also filed a written admission that appellee had a good cause of action as set forth in his petition, except in so far as it might be defeated by the defensive matters pleaded by them. The case was tried to a jury. The court at the close of the evidence, at the request of appellee, instructed the jury to return a verdict in his favor against appellants for the sum of $131.82. The court rendered judgment upon the verdict-returned in response thereto. I-Ienc'e this appeal.

Opinion.

Appellants assign as error the action of the court in giving a peremptory instruction against them. They contend in this connection that the testimony introduced raised an issue of a valid voluntary release by appellee of their liability to him on said note, and that such issue should have been submitted to the jury.

Appellee held a note executed and delivered to him by Joe Kohn, dated February 2, 1924, for the sum of $1,100, with interest from date until paid at the rate of 8 per cent, per annum, payable annually on the 1st day of January each year thereafter until maturity of the note. Said note contained a provision for accelerated maturity in case of default in the payment of such interest. It was secured by a vendor’s lien on certain property situated in Ennis, Tex. On January 2,' 1927, Joe Kohn was indebted to appellee for past-due interest thereon in the sum of $95.04. Ap-pellee demanded payment thereof and threatened in the alternative to declare the note due and to institute suit for judgment thereon with a foreclosure of his lien. To prevent such action, Joe Kohn, joined by the other appellants herein, executed and delivered to appellde the note sued on. Said note was dated January 2, 1927, and was due one year after date without grace. On May 19, 1928, appellee instituted suit against Joe Kohn in the district court of Ellis county to recover on his vendor’s lien note for $1,100, with interest and attorney’s fees as aforesaid and'for foreclosure of his lien. Interest for the year 1926, for which the note sued on was given, was included in said suit. Some time thereafter, the exact date not being shown by the testimony, Joe Kohn conveyed his Ennis property covered by appellee’s lien to John Toth. Thereafter on the - day of January, 1929, appellee dismissed said suit. This suit was instituted in the justice court on March 28, 1929.

The testimony showed that on or about the maturity of the note sued on appellee demanded payment thereof of appellants. The testimony further showed without dispute that the note sued on was given by appellants and accepted by appellee in payment of past-due interest on said vendor’s lien note, and that it was not secured by a lien of any kind. Appellants introduced testimony that a short time thereafter, and before appellee filed suit on the vendor’s lien note, appellee stated that he had released appellants from liability on the note sued on. There was no attempt to show a release in writing. Appellants each testified affirmatively that such release was without consideration from them. The testimony further showed that said note was not delivered to the makers or either of them at the time of such purported release or renunciation.

Prior to the enactment of our Uniform Negotiable Instruments Act a verbal release of the maker of a promissory note from liability thereon without consideration was ineffective and void. Rowe v. Daugherty (Tex. Civ. App.) 196 S. W. 240, 242, par. 6; Hall v. Wichita State Bank & Trust Co. (Tex. Civ. App.) 254 S. W. 1036, 1037, et seq. Section 122 of said act, now part of article 5939 of our Revised Statutes, provides that the holder of a negotiable instrument may renounce his rights against any party thereto, but requires such renunciation to be in writing, unless the instrument is delivered up to the person primarily liable thereon. The purported release or renunciation, being verbal and wholly without consideration, and there being no surrender of the note to any of the makers thereof, was ineffective to relieve appellants from liability thereon. Rowe v. Daugherty, supra; Hall v. Wichita, State Bank & Trust Co., supra; 34 Cyc., p.1048; 8 O. J. p. 615, § 855.

Appellants further contend that the testimony raised an issue of novation and their release by appellee in consideration thereof from liability on the note sued on. Joe Kohn testified that he conveyed his Ennis property covered by appellee’s lien to John Toth in exchange for a farm- conveyed by Toth to him. Neither of the respective deeds was introduced in evidence, nor was there any attempt to show the substance thereof. Gaida, a real estate agent, represented Kohn in negotiating and consummating said exchange. .Kohn testified in this connection: “Charles Zaludek, John Toth and John Gaida looked up what there was against my city property, figured it all up and said that this straightened all debts against the city property, which debts Toth assumed. I acted'upon the belief and understanding that I was released, together with the two on this note.” Appellants’ contention that Toth agreed to pay the note sued on, that appellee accepted such obligation, and in consideration thereof released them from liability on said note, is based on the foregoing testimony. It will be noted that Kohn did not therein testify that the note sued on was mentioned in the negotiations preceding' said transaction or in the consummation thereof. Neither did he testify specifically that Toth assumed the same. We have hereinbefore stated that appellants all testified affirmatively that the note sued on was accepted by appellee in payment of a year’s interest on the vendor’s lien note, and that it was not secured by a lien of any kind. Under such state of the testimony, said note did not constitute a debt against the city property. Appellee testified that the note sued on was not considered in the transaction between Kohn and Toth. Gaida, Kohn’s agent, testified that he was present when Kohn and Toth agreed to exchange said properties and also when such agreement was consummated, and that nothing whatever was said about the note sued on. He further testified that said transaction was consummated in Judge Sharp’s office; that Judge Sharp presented a calculation showing the amount due on said 81,100 vendor’s lien note; that appellee told him that he had included therein one year’s interest which ought not to have been included, and that the same should be deducted. Judge Sharp testified that he presented a calculation of the amount due on the $1,100 vendor’s lien note, but that settlement was not made on such calculation;, that there was a conversation between appellee and Gaida in Bohemian, and that a settlement was then made. He also testified that the note sued on was not mentioned at that time. Toth did not testify. '

The purchase of incumbered property, the assumption by the purchaser of the debt secured thereby, the creditor’s recognition of such obligation and his release of the original debtor in consideration thereof from further liability for the debt so assumed, are all necessary to constitute a novation. The mutual agreement of all the interested parties • is necessary to effect such novation, and each element thereof must be established by evidence. Reclamation Company v. Simmons (Tex. Civ. App.) 293 S. W. 194, 196, pars. 1 and 2 (writ refused) and authorities there cited; 46 C. J. 579, § 12; Id., p. 600, § 43 et seq.; 20 R. C. L. p. 362, par. 4; Id., p. 369, par. 13. The effect of the testimony of Gaida and Judge Sharp, both disinterested witnesses, is to show affirmatively that the year’s interest for which the note sued on was given was deducted, and that such note was not mentioned nor considered in the exchange of properties between Kohn and Toth, and that Toth did not assume the same. Said testimony was not controverted. No issue of release by novation was therefore presented by the testimony.

Appellants present as ground for reversal the refusal of the court to permit them to prove by their witness Joe Kohn that he had paid the note sued on. Their bill of exceptions shows, that they offered to prove by said witness that he had paid said note; that counsel for appellee objected to the introduction of such testimony on the ground that appellants had not pleaded payment and on the further ground that they had expressly refused to plead payment, and that the court sustained such objection. Appellants’ bill should have set out the testimony the witness would have given had he been permitted to testify. Hereford Cattle Co. v. Powell, 13 Tex. Civ. App. 496, 36 S. W. 1033, 1035 (writ refused). If appellants expressly declined to plead payment, such refusal should have been shown as a fact, and not merely recited as one of the grounds of objection to the testimony offered. We have, however, considered the bill notwithstanding these irregularities. While pleadings in the justice court, and in the county court on appeal therefrom, may be oral and informal, and are to be construed with great liberality, they are as essential to raise an issue as in a court of record. Moore v. Jordan, 67 Tex. 394, 395, 3 S. W. 317; Young Men’s Christian Ass’n v. Schow Bros. (Tex. Civ. App.) 161 S. W. 931, 932, par. 1; Alvis v. John G. Harris Hdw. & Furn. Co. (Tex. Civ. App.) 218 S. W. 538, 540, par. 5; Driskill Hotel Co. v. Anderson (Tex. Civ. App.) 19 S.W.(2d) 216, 217, par. 2. Payment of an obligation sued on is an affirmative defense thereto, and as such must be pleaded before testimony tending to show the same is admissible. Moore v. Jordan, supra; Rutherford v. Gaines, 103 Tex. 263, 264, 126 S. W. 261; Thompson v. Baird (Tex. Civ. App.) 146 S. W. 354; Southwestern Portland Cement Co. v. O. D. Havard Co. (Tex. Civ. App.) 155 S. W. 656, 657, par. 3; State v. Quillen (Tex. Civ. App.) 115 S. W. 660, 661; Richey Grocery Co. v. Warnell (Tex. Civ. App.) 103 S. W. 419; Berry v. First Nat. Bank of Dawson (Tex. Civ. App.) 253 S. W. 537, 539, par. 2. The record in this ease purports to show appellants’ pleadings. No plea of payment is included therein. While in proper cases the court may presume that oral pleadings not incorporated in the • record were presented, when such presumption is necessary to support the judgment, such presumption will not be indulged to defeat the judgment nor contrary to the affirmative rulings of the court. Galveston, H. & S. A. Ry. Co. v. Masters (Tex. Civ. App.) 23 S.W.(2d) 759, 760, and authorities there cited; Gulf, C. & S. F. Ry. Co. v. Goodman (Tex. Civ. App.) 189 S. W. 326, 327, pars. 1 to 3, inclusive; Vick v. Mobeetie Land Co. (Tex. Civ. App.) 24 S.W.(2d) 735, 736, par. 5. The exclusion of the testimony offered was proper.

Appellants, in presenting their contention that the testimony raised an issue of voluntary release and release by novation, as hereinbefore discussed, urge incidentally in that connection consideration of certain testimony which they insist showed elements of estoppel. No plea of estoppel is contained in the record. The rule announced in the preceding paragraph of this opinion precludes consideration of such testimony.

The judgment of the trial court is affirmed.