text:
    L. D. MURPHY, Appellant, v. The STATE of Texas, Appellee.
    No. 36665.
    Court of Criminal Appeals of Texas.
    April 29, 1964.

      Fred Erisman, Longview, Jim D. Bow-mer, Bob Burleson, Skelton, Bowmer, Courtney & Burleson, Temple (on appeal only), for appellant.
    J. O. Duncan, Dist. Atty., Gilmer, Wag-goner Carr, Atty. Gen., Austin, Cecil C. Rotsch, Robert Flowers and Robert O. Smith, Asst. Atty. Gens., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the substantive offense of conspiring with one E. W. Scates to bribe Mathews to induce him to conduct a false inclination survey on a certain oil well located on the Adkins lease; the punishment, two years.

The facts stated most favorably from the State’s standpoint are as follows: Robert Mathews, an employee of the Texas Railroad Commission who worked under the supervision of appellant, the District Engineer for the Commission, testified that appellant approached him during December of 1961 or January of 1962, and told him that he (appellant) had an interest in the Adkins lease, that plans were afoot to drill a well on such lease, that he intended to call on the witness to make an inclination survey on the well and “that he might need my help on the survey. And he said that I needn’t worry, Jelly Scates would talk to some other people that were interested in the well and that they would have to put their hands in their hip pocket.” Jelly Scates was shown to be the same person as E. W. Scates. Mathews’ further testimony will be summarized as follows: Sometime thereafter and prior to going upon the lease, he and appellant got together and by using the Toteo instrument prepared a false set of charts which made it appear that a well was within the inclination permissible under Railroad Commission rules. He stated that he understood that these charts were to be used to reflect the Adkins well inclination. Later appellant told Mathews that Scates had called and they were ready to run the test and gave him the set of charts which they had prepared and told him to use them in a certain order. On February 12, 1962, he met Railroad Commission employee Logan at the Adkins lease, and they went through the motions of making a test. Logan was performing a function in connection with such tests which required him to be some distance away from the Toteo instrument, and it was possible for Mathews to make a substitution of the chart which he and appellant had previously made without Logan’s knowledge. When Mathews arrived at the Adkins lease, Scates, who was present, reached in his pocket and gave him some money which he later determined amounted to one thousand dollars. Upon his return to the Commission office in Kil-gore, Mathews delivered the false set of charts to appellant. The reports he made from such charts later found their way to the Railroad Commission files in Austin. His explanation for his conduct was that Scates had paid him, and appellant had told him to do so. A few days later appellant told Mathews that Railroad Commissioner Bill Murray had raised some question about the Adkins well and that it would be necessary for them to make another test, which they would do as soon as Scates told him to do so. Thereafter, Mathews and appellant prepared another set of false inclination charts, and on February 21, he and appellant went to the Adkins lease and again went through the motion of running a test, but again substituted the false charts which they had previously made. At this time Mathews performed the function which Logan had in the previous test, and appellant was in charge of the Toteo instrument. Both appellant and Mathews signed the false report the secretary prepared from the charts they submitted to her, and the report was placed in the Railroad Commission vault. Mathews identified this report which had been brought to court by Railroad Commission Supervisor Payne and admitted in evidence.

Subsequently on June 1, 1962, other employees of the Railroad Commission ran an inclination survey on the Adkins well and discovered that the charts which had theretofore been submitted were grossly erroneous. On the following day, the Eastman Oil Well Survey Company at the insistance of the Railroad Commission ran another inclination and a directional survey and found that the charts heretofore mentioned were false and that the well was bottomed off the Adkins lease.

In support of this accomplice witness’ testimony that appellant and Scates had conspired to bribe him, the State offered the following evidence:

1. Logan, an admittedly innocent agent, testified that when he met Mathews at the Adkins lease (when the first test was purportedly run), Scates was present and was talking to Mathews. However, Mathews testified that he had received the money prior to Logan’s arrival.

2. A letter, shown by handwriting experts to be in the writing of appellant, addressed to “Bill” and signed “Murph”, was introduced from the files of the Railroad Commission in Austin and states, “We marked this well again as soon as we returned from Austin * *, * the hole he’s in now is O.K.” A Railroad Commission agent stated that the fact that it was found in the Commission files indicated to him that “Bill” meant Railroad Commissioner Bill Murray and that “Murph” meant appellant. This letter was shown to have come from the same file as the second false inclination survey report on the Adkins well which bore appellant’s signature.

3. An account in the Tyler Bank and Trust Company in the name of J. W. Tyner, Trustee, was shown to have been opened some two years prior to the date charged in the indictment. Into this account deposits were made by appellant and Scates, and withdrawals were made to each of them. Some of the withdrawals payable to Scates bore the notation “Adkins” and “For the Adkins”, and were dated subsequent to the filing of the false inclination surveys shown above. Some of the withdrawals were obviously for appellant’s personal use, such as the purchase of an automobile and $5,000 issued to him in Las Vegas prior to the date charged in the indictment.

4.Checks signed by Scates, dated after he had executed a conveyance of his interest in the Adkins lease, were marked “Adkins : Operating Expense” and “Adkins”.

Among many other contentions, appellant forcefully asserts that the evidence is insufficient to corroborate Mathews’ testimony that Scates was a co-conspirator with Murphy. He asserts, and rightfully so, that it was necessary for the State to prove the allegations of the indictment, that is, that Murphy conspired with Scates to bribe Mathews. The case more nearly on all fours with the case at bar and upon which the State relies is Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371. The principal distinction between the cases is that in Carter the main incriminating evidence did not come from an admitted, wrong-doer as in the case at bar. The fact that Mathews and Scates were seen together at the well is not sufficient corroboration. Braly v. State, 125 Tex.Cr.R. 374, 68 S.W.2d 504, and Odneal v. State, 117 Tex.Cr.R. 97, 34 S.W.2d 595. Nor would the fact that both Murphy and Scates had an interest in a bank account and that Scates may have paid part of the costs of drilling a well be sufficient corroboration of Mathews’ testimony that Murphy and Scates conspired together to bribe him.

The State has failed to meet the requirements of Article 718 Vernon’s Ann.C.C.P. and Articles 1622 and 1624 Vernon’s Ann. P.C. in that the testimony of the accomplice witness has not been corroborated to show that Scates entered into an agreement with Murphy to bribe Mathews. The indictment, omitting the formal parts, charged:

“ * * * E. W. Scates and L. D. M.\irhpy, alias Robert V. Jobe, did, then and there unlawfully conspire, combine, confederate, and enter into a positive agreement together and between themselves to unlawfully, wilfully and corruptly bribe Robert W. Mathews * * *

It must be remembered that this is a conspiracy case and not one for the offense of bribery.

Since the State has failed to corroborate the accomplice witness as to this essential element, the case must be reversed and remanded for another trial. It is so ordered.


source: Caselaw Access Project

author: McDonald, judge.

license: Public Domain

text:
    Vernon Otis BEAVERS, Appellant, v. The STATE of Texas, Appellee.
    No. 36865.
    Court of Criminal Appeals of Texas.
    April 22, 1964.
    Rehearing Denied May 20, 1964.
    Henry Tirey, M. J. McNicholas, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape; the punishment, 75 years in the state penitentiary.

The statement of facts is not complete and contains only the testimony of Myra Beavers, the wife of the appellant. In the absence of a complete statement of facts the question of the sufficiency of the evidence is not before us. Sullivan v. State, Tex.Cr.App., 377 S.W.2d 952, delivered this day. We are also unable to consider whether or not the penalty is excessive. We do observe that it is within the limits allowed by statute.

In his brief appellant relies upon si>t propositions or contentions. Each contention being that although appellant waived the incapacity of his wife to testify against him when he called her as witness in his defense, the state overstepped the limited cross-examination allowed.

In his first proposition appellant contends that the trial court erred in not granting a mistrial when Assistant District Attorney Bondies asked appellant’s wife on cross-examination, “So - you * * * do you really know yourself whether or not he penetrated her or not ?”

A: “To my knowledge, I don’t think so.”
Q: “All right, I realize you probably wish he hadn’t of, but we’re concerned with what happened.”

Appellant then objected to the statement as “ * * * highly prejudicial, and furthermore at this time that the jury be discharged and a mistrial granted.” The Court overruled the motion for mistrial. We think properly so. Appellant made no request that the jury be instructed to disregard the Assistant District Attorney’s statement.

Appellant’s remaining contentions are also without merit. The record reflects that appellant made no objection when the evidence complained of came in, his contention being that no objection was necessary, and that .the state’s cross-examination of appellant’s wife.was not pertinent or germane to the testimony given by her on direct examination.

Art. 714 C.C.P. provides in part that the husband or wife shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.

In Gue v. State, 171 Tex.Cr.R. 421, 351 S.W.2d 237, Judge Morrison quoted from Williams v. State, 171 Tex.Cr.R. 500, 279 S.W.2d 348, 350 as follqws:

“An accused will not be .permitted to introduce his wife as a witness in his behalf, remain silent during her cross-examination, and secure a reversal in the event any part of her cross-examination impinges upon the rule forbidding the use of the wife as a witness against her husband.”

While wé do not agree with appellant’s contentions that objections are unnecessary, we find the cross-examination of appellant’s wife to have been properly within the scope of matters adduced upon direct examination.

No reversible error appearing, the judgment of the trial court is affirmed.


author: DICE, Commissioner.

text:
    Ex parte H. M. MALONE.
    No. 36678.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    Rehearing Denied May 20, 1964.

      Spence, Martin & Richie, by Gene Richie, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Stanley M. Vickers, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Arkansas.

At the hearing, the respondent introduced in evidence the executive warrant of the governor of this state authorizing the arrest and return of appellant to the State of Arkansas to answer a charge of “Violating the Arkansas Hot Check Law (Act 241 of 1959).”

The introduction in evidence of the executive warrant, regular on its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Brito, Tex.Cr.App., 358 S.W.2d 122; Ex parte Browder, Tex.Cr.App., 373 S.W.2d 751.

At the hearing the respondent also introduced in evidence the requisition of the governor of Arkansas and supporting papers, including the indictment returned against appellant.

Appellant insists that the court erred in refusing to discharge him from custody because the indictment failed, first, to allege an offense, and, second, it failed to substantially charge him with an offense under the laws of Arkansas.

The indictment returned into the Circuit Court of Polk County, Arkansas, charging appellant with violation of the Arkansas Hot Check Law, omitting the formal parts, alleged:

“The said H. M. Malone in the County and State aforesaid, on the 23rd day of September, A.D. 1959, did unlawfully, wilfully and feloniously, make, draw and deliver to Lane Poultry Farms of Grannis, Arkansas, acting through an agent of the said H. M. Malone, the name of such agent being Fred Dickerson, one certain check dated September 23, 1959, in the amount of $2555.52, for the payment of money on the Parker Square State Bank of Wichita Falls, Texas, in payment for dressed poultry, knowing at the time of such makind and delivering that he, the said H. M. Malone, did not have sufficient funds on deposit with said bank for the payment in full of said check, together with all other checks then outstanding and with no good reason to believe the check would be paid upon presentation to said bank.”

Appellant insists that the indictment which charged that he committed the offense by an agent did not under the law of this state charge an offense because a person is not criminally responsible for the acts of his agent and that, in the absence of a showing to the contrary, it is presumed that the law of Arkansas is the same as in this state.

While under the law of this state a principal is not ordinarily criminally responsible for the acts of his agent, if it be shown that he procured or authorized the agent to do the thing constituting the crime he is criminally liable. Gaiocchio v. State, 9 Tex.Cr.App. 387; Houston v. State, 13 Tex.Cr.App. 595. In 16 Tex.Jur. 2d under the title “Criminal Law.” Sec. 50, pages 158-159, it is stated:

A person who commits an o fíense through an innocent agent is deemed to have committed the act himself, and even a person who commits an offense through a guilty agent is a principal.”

The Arkansas statute, Act 241 of 1959, under which the indictment was drawn, provides in Section 2 as follows:

“It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached, or to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.”

The indictment, above set out, did substantially charge appellant with a crime under this statute and was sufficient upon which to base appellant’s extradition.

The affidavits of the prosecuting attorney and the prosecuting witness show that although appellant’s acts were committed in this state, they intentionally resulted in a crime in Arkansas, which, under Sec. 6 of Art. 1008a, Vernon’s Ann.C.C.P., authorized appellant’s surrender on demand of the governor of Arkansas, even though he was not in that state at the time of the commission of the crime and had not fled therefrom.

The judgment remanding appellant to custody for extradition is affirmed.

Opinion approved by the court.


text:
    Tommy WICKER, Appellant, v. The STATE of Texas, Appellee.
    No. 36827.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    Rehearing Denied May 13, 1964.

      Carney & Mays by Howard A. Carney, Jr., Atlanta, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant entered a plea of guilty on May 6, 1963, to an indictment for' forgery and was assessed punishment at confinement in the penitentiary for five years.

On such date it was ordered by the court that the execution of sentence be suspended and that appellant be placed upon probation upon certain terms and conditions. One of the conditions was that he “1. Commit no offense against the laws of this ■state or any other state of the United States ■of America.”

On October 28, 1963, a petition to revoke the probation was filed by the criminal district attorney, alleging that appellant had violated such condition of his probation.

In the petition it was alleged that on October 27, 1963, the appellant operated his automobile in Cass County, Texas, at an excessive speed, that when apprehended he resisted arrest, and that “a charge of excessive speeding and resisting arrest has been filed in that certain case styled THE STATE OF TEXAS VS. TOMMY WICKER, Cuase. Number 10,287, in the District Court of Cass County, Texas * *

After notice and hearing, the court entered its order revoking the probation upon a finding set out in the order “that the Defendant, TOMMY WICKER, has violated the terms of said probation by being charged with the offense of Speeding and Resisting Arrest * *

This is an appeal from the court’s order revoking probation.

In appeals of this nature this court’s review is limited to a determination of whether the trial court abused his discretion in revoking probation. Oberlender v. State, Tex.Cr.App., 334 S.W.2d 186. '

Appellant’s primary contention on appeal is that the court did abuse his discretion in revoking the probation upon the sole ground that he had been charged with the offenses of speeding and resisting arrest.

With such contention we agree.

The condition of appellants probation was that he commit no offense against the laws of this state or any other state, rather than that he not be charged with an offense.

Recently, in Flores v. State, Tex.Cr.App., 331 S.W.2d 217, we had occasion to point out that the arrest and filing of a complaint against a probationer would not, alone, au-

thorize a revocation of probation conditioned that he “commit no offense against the laws of this or any other state or the United States,” but under the evidence, we upheld the finding of the trial judge that the probationer had committed an offense and violated such term and condition of probation.

Here, the court did not find that appellant had committed an offense against the laws of this state but only that he had been charged with committing an offense.

Such finding was insufficient upon which to predicate the order revoking probation.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . (Emphasis supplied.)


author: MORRISON, Judge WOODLEY, Presiding Judge. McDonald, judge.

text:
    Marglet JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36637.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Rehearing Denied March 25, 1964.
    Second Motion for Rehearing Denied May 6, 1964.
    Paul W. Anderson, Marshall, for appellant.
    Leon Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge

The offense is the possession of untaxed' whiskey; the punishment, ten days in jail and a fine of $150.00.

No statement of facts accompanies the record.

Three formal bills of exception appear in the transcript, but there is no showing that they were filed in the trial court within the 90 days provided by Article 760d, Vernon’s. Ann.C.C.P., and therefore cannot be considered.

No reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

It is now made to appear that the bills of exception referred to in our original opinion were filed in the trial court on December 5, 1963, and notice of appeal was given on October 30, 1963.

Bill No. 1 complains that the state failed to introduce competent, positive and unequivocal evidence that the liquid offered in evidence was an alcoholic beverage as contemplated by Art. 666-3a, Vernon’s Ann. P.C.

Bills 2 and 3 relate to the form of the affidavit for search warrant and the admission in evidence of the fruits of the search.

The motion for rehearing presents interesting questions regarding certification of error in ruling upon the admissibility of evidence in a trial before the court. We note, however, that the information alleged the possession of whisky in a container which had no tax stamp and no evidence affixed showing payment of tax to the state and the appellant pleaded guilty to the charge in the information before the court.

This being a misdemeanor case, the state was not required to introduce any evidence and the presumption is that in arriving at his judgment the court did not consider any evidence improperly admitted. See Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106; Tealer v. State, 163 Tex.Cr.R. 629, 296 S.W.2d 260; Slater v. State, 169 Tex.Cr.R. 587, 336 S.W.2d 167.

In the absence of any showing that the evidence introduced showed as a matter of law that the defendant was not guilty as charged, the court’s judgment upon the defendant’s plea of guilty will not be disturbed.

Appellant’s motion for rehearing is overruled.

APPELLANT’S SECOND MOTION FOR REHEARING

McDonald, judge.

Since the delivery of our opinion on appellant’s motion for rehearing a corrected judgment together with an affidavit signed by the trial judge in support thereof, dated subsequent to the perfection of this appeal, has been forwarded to this court reflecting that appellant in fact entered a plea of not guilty instead of a guilty plea. Until this appeal has become final, the trial court is without authority to correct the judgment which forms a part of the record on appeal. Art. 772, Vernon’s Ann.C.C.P.; Parker v. State, 169 Tex.Cr.R. 583, 336 S.W.2d 431; see also Fitch v. State, Tex.Cr.App., 378 S.W.2d 313. Under the authorities cited, the corrected judgment will not be considered.

Appellant’s motion for rehearing is overruled without prejudice to his right to secure, if he can, the entry of a judgment nunc pro tunc by the trial court from which he might again appeal to this Court. Parker v. State, 170 Tex.Cr.R. 570, 342 S.W.2d 764.


author: McDonald, judge. MORRISON, Judge WOODLEY, Presiding Judge

text:
    Robert J. D. NICHOLS, Appellant, v. The STATE of Texas, Appellee.
    No. 36758.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    Rehearing Denied May 13, 1964.

      Frank Mabry, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gus J. Zgour-ides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is statutory rape; the punishment, 20 years confinement in the state penitentiary.

In view of our disposition of this case, a recitation of the facts will be unnecessary.

The record reveals that the young 14 year old prosecutrix had testified fully upon direct examination by the State. She was then cross-examined rather extensively by appellant’s counsel and was, at the conclusion of the cross-examination, taken again on re-direct examination by the state. It was at this point in her testimony that the Assistant District Attorney representing the state, asked:

Q: “Without telling me any results, did you take a lie detector test , about this?”
Mr. Mabry: (Appellant’s counsel) “I obj ect — ”
A: (By witness) “Yes sir.”
Mr. Mabry: “— to this and ask for a mistrial. A lie detector test is not introducible in evidence.”
THE COURT: “Sustain the objection, and the jury will not consider that for any purpose whatsoever.”

The appellant 'has urged as one of the grounds for reversal the action of the trial judge in failing to grant a mistrial because of the above question propounded to the' prosecutrix about her having taken a lie detector test.

We find, without a single exception, that every court of last resort that has been called upon to decide the question has ruled that results obtained from the so-called lie detector test are not admissible as evidence. As the matter is stated in one of the earliest reported cases on the subject:

“We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014, 34 A.L.R. 145 (1923).

The state also agrees with this position and cites us the applicable rule of evidence set forth in Placker v. State, 171 Tex.Cr.R. 406, 350 S.W.2d 546, in which this Court stated :

“Under the holdings of this court, evidence of the results of a polygraph test is not admissible on behalf of either the state or the defendant.” Peterson v. State, 157 Tex.Cr.R. 255, 247 S.W.2d 110; Stockwell v. State, 164 Tex.Cr.R. 656, 301 S.W.2d 669 and Davis v. State, 165 Tex.Cr.R. 456, 308 S.W.2d 880 are cited in Placker’s case.

The state contends that evidence of the fact that a lie detector test was taken, as opposed to results thereof, is not prejudicial to appellant where it is limited. The state relies upon Tyler v. United States, 90 U.S.App.D.C. 2, 193 F.2d 24, 31. We observe from a careful reading of Tyler’s case, which was tried in the District of Columbia in 1950, that the trial judge limited the consideration by the jury with the following instruction: “The statement of the witness that he told the defendant that the machine indicated he was lying is not admitted as evidence of any alleged lying of the defendant, but merely as evidence bearing upon the question whether the confession was, in fact, voluntary.” We do not think the case is in point with the case at bar. The two cases may be distinguished because of different fact situations. Further, we do not agree with the state that Monasco v. State, 172 Tex.Cr.R. 528, 361 S.W.2d 208 and Diamond v. State, 172 Tex.Cr.R. 192, 355 S.W.2d 522 control the disposition of this case. In Monasco’s case the court overruled a motion for mistrial and instructed the jury to disregard the statement. The complained of statement arose during the testimony of a witness by the name of Captain Johnson, when he testified, upon being asked what happened when he first saw appellant in the hall on the second floor of the Golder Hotel, answered, “I told Mr. Monasco, I knew him by pictures in our identification * * *.” We do not regard this testimony adduced as being prejudicial to appellant, as that adduced in the case at bar. In Diamond’s case the court sustained the objection and instructed the jury not to consider the conclusion of the officer. The appellant there asked for no further ruling and therefore was in no position to complain.

The appellant here actually never received a ruling from the trial court on his motion for a mistrial. While it is true that the trial court did instruct the jury to “not consider that for any purpose whatsoever”, we think that the learned trial judge fell into error in not granting appellant’s motion for a mistrial. We think it fair to observe that the only reason that anyone would possibly take a lie detector test would be to determine whether or not they were telling the truth. The state not only inquired about a test, the results of which were not admissible, but when it asked the question and received an affirmative reply it no doubt very effectively bolstered the prosecutrix’s testimony before the jury. This, we think was highly prejudicial to the rights of appellant, and the harm done was so great that no instruction from the court could remove it. This testimony in effect revealed the results of the lie detector test and this was inadmissible. The jury no doubt were convinced that the Assistant District Attorney knew the prosecutrix had taken and passed the test. We think that the appellant was here placed in the unfortunate position of being compelled to object to testimony which the jury no doubt felt was unfavorable to him (appellant). An impression must have been implanted in the minds of the jurors that the result of the lie detector test had been unfavorable to appellant or else appellant’s counsel would not have objected to the question propounded by the state. The jurors, being lay persons, no doubt felt that the evidence of a lie detector test would reveal the truth and that appellant was attempting to suppress the truth from them by objecting to the question and keeping testimony from them. Appellant was placed in an unfavorable position before the jury by having to voice an objection. We think the question itself was highly improper, clearly inadmissible, and it was also prejudicial to appellant’s rights. Had appellant pursued the matter further and insisted upon a ruling by the trial court, or had appellant re-urged his motion for a mistrial, we think that he would only have further inflamed the prejudicial effect upon the jury and further impaired his client’s rights. This, we do not think it necessary for him to have done since he had already effectively directed the attention of the trial court to the error complained of. The objection made was adequate and specific enough. We do not think it would have been fair to place appellant in the entrapped position that required him at his peril either to continue to object or be damned by the adverse impressions created in the minds of the jury. We think that no amount of instructions on the part of the trial court could remove from the jury the harmful effect created in their minds. We think it not unlikely that the jury was influenced by this testimony. The practical effect of the testimony was to allow by inference, the admission of damaging evidence that would not have been legally admissible had it been submitted directly. In a situation where the state’s whole case depended entirely upon the testimony of this one 14 year old witness whose credibility must have appeared somewhat shaken to the Assistant District Attorney and must have, he thought, be in need of bolstering, the appellant should not have been placed in this intolerable position.

We think that the case of Kaminski et al. v. State, 63 So.2d 339, a Florida case, is in point and controls the disposition of this case. We quote therefrom:

“The successful attempt by the prosecution by the means employed to implant in the minds of the jury the impression that because the witness had voluntarily submitted to a lie detector test prior to trial he must perforce be testifying truthfully in the course of the trial, resulted, in effect, in the substitution of a mechanical device, without fair opportunity for cross-examination, for the time-tested, time-tried, and time-honored discretion of the judgment of a jury as to matters of credibility.”

For the reason stated, the judgment is reversed and the cause remanded for another trial.

MORRISON, Judge

(concurring).

It is the rule in this Court that it is incumbent upon an appellant to pursue a matter until he gets an adverse ruling of the Court. Baker v. State, Tex.Cr.App., 368 S.W.2d 627, and Bearden v. State, Tex.Cr.App., 334 S.W.2d 447. However, I have concluded that once an appellant asks for a mistrial, and the court fails to grant the same, he has done all that our rule requires.

I concur in the reversal of this conviction.

WOODLEY, Presiding Judge

(dissenting).

I am unable to agree that this conviction for statutory rape by a father upon his 14 year old daughter should be set aside upon the ground that the trial judge erred in failing to sustain appellant’s motion for a mistrial.

There is no doubt that the question: “Without telling me any results, did you take a lie detector test about this?” was improper. The trial judge recognized this and instructed the jury not to consider it.

The objection was: “I object to this and ask for a mistrial. A lie detector test is not introducible in evidence.”

The court’s ruling was: “Sustain the objection, and the jury will not consider that for any purpose whatsoever.”

Insofar as the record reveals counsel was satisfied with the court’s ruling for the trial proceeded and there was no motion thereafter for a mistrial.


author: MORRISON, Judge.

text:
    Joseph Herschel MOUTRAY, Appellant, v. The STATE of Texas, Appellee.
    No. 36859.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    Rehearing Denied May 20, 1964.
    M. Gabriel Nahas, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Hames C. Brough and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is breaking and entering a coin operated machine, as denounced by Article 1402a Vernon’s Ann.P.C., with three prior felony convictions alleged for enhancement; the punishment, life.

Officer Tillman testified that after midnight on the night in question, while on patrol, he passed a vacant parking lot and observed a man leaning forward with his knees bent in front of a Coca-Cola machine, which was beside the parking lot attendant’s small building, that he brought his patrol car to a halt and approached the building on foot, at which time the man moved around the corner of the building away from him. Tillman stated that he called out to the man instructing him to “stop right where you are”, but that instead the man ran, at the same time discarding a crow bar, and that he was able to overtake the man, whom he identified as the appellant, and return him to the Coca-Cola machine where he discovered that the money box door had been prized ajar. On the way back to the machine, Tillman recovered the crow bar and a key to appellant’s hotel room which he had seen him discard in the chase.

Officer Stewart testified that a search of appellant’s person at the scene revealed that he had 28 dimes, three quarters and 12 nickels, but no half dollars or pennies in his pants pocket.

Appellant testifying in his own behalf admitted that he was the same person convicted in the three prior felonies alleged in the indictment, stated that on the night in question he had approached the Coca-Cola machine for the purpose of buying a drink, that as he approached the same he observed that it had “been tampered with”, whereupon he repaired to the opposite side of the building to answer a call of nature and while there observed a crow bar on top of the garbage pail, that he picked up the same, and that when he saw the officer approaching, he ran because he realized that because of his past record, he would be suspected of breaking the machine. He admitted that he had not been employed for several months prior to the incident in question.

The jury chose to accept the State’s version of the occurrence, and we find the evidence sufficient to support the conviction.

Bill of exception No. 1 complains of the overruling of his motion to quash the indictment based upon the grounds that three rather than two prior convictions were alleged in order to secure a conviction under Article 63 V.A.P.C. This question has been put to rest in Bonner v. State, Tex.Cr.App., 375 S.W.2d 723, and Carso v. State, Tex.Cr.App., 375 S.W.2d 297, and the cases cited in such opinions.

Bill of exception No. 2 contends that a charge under Article 1402a is not an “ordinary felony” which may be employed as a primary offense in an Article 63, supra, indictment, because it may by its terms be punished by a fine or confinement in jail as well as confinement in the Department of Corrections. Article 47 V.A.P.C. reads in part as follows:

“An offense which may — not must — be punishable by death or by confinement in the penitentiary is a felony * * *. Offenses are divided into felonies and misdemeanors.”

Campbell v. State, 22 Tex.App. 262, 2 S.W. 825, and Smith v. State, 115 Tex.Cr.R. 88, 29 S.W.2d 350, support the conclusion that an offense which may be punished by confinement in the Department of Corrections is a felony.

No reversible error appearing, the judgment is affirmed.


text:
    Jimmie LUCAS, Appellant, v. The STATE of Texas, Appellee.
    No. 36700.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    As Amended May 6, 1964.
    Rehearing Denied May 6, 1964.

      Jack K. Pedigo, Jack P. Kelso, Corpus ■Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful sale ■ of marihuana; the punishment, five years in the penitentiary.

At the beginning of the trial, appellant •presented a motion to the court in which he ■stated that he did not intend to put his ■character as a peaceable law-abiding citizen in issue and requested the court to instruct the district attorney not to interrogate him in any manner concerning two previous arrests in San Patricio and Nu-eces Counties for alleged violations of the Texas Uniform Narcotic Drug Act. It was alleged in the motion that the appellant had never been convicted for the possession or sale of marihuana or any other narcotic drug and that it would be highly prejudicial, inflammatory, and a deprivation of his rights to a fair trial to permit the prosecution to question or allude to or imply in any way in the presence of the jury that he may have been previously in- . dieted for violation of the Texas Uniform .Narcotic Drug Act.

Such motion was by the court granted.

Upon the trial, appellant did not take the witness stand in his own behalf but called certain witnesses who testified that his reputation for truth and veracity was good.

This testimony, although not relevant to any issue in the case, was permitted by the court, no objection having been made by the state.

Lonnie Mitchell, a witness called by appellant, testified on his direct examination, in part as follows:

[“Q Now, are you acquainted with his reputation in the community where he lives for truth and veracity?] A Well, to the best of my knowledge, sir, lawyer, I am, sir.
[“Q All right.] A That’s all I can answer, to the best of my knowledge.
l“Q All right. By ‘veracity,’ I mean the habit of telling the truth.] A Well, yes, sir. I’ve always known him to tell the truth, sir.
[“Q All right. What is his repu-ation for truth and veracity?] A Well, his reputation with me is good for telling the truth, sir.
[“Q All right.] . A Yes, sir. That’s all I can answer.
[“Q Is his reputation in the community good?] A Well, I’m quite sure it is. He’s got an awful good credit rating there, and if he was dishonest, I don’t guess he would have a good credit rating.
[“Q All right.] A Yes, sir.”

On his cross-examination by the district attorney the witness was asked, among other questions, the following:

“Q Have you heard that as far back as May the 18th of 1929 he was arrested in San Antonio, Texas, and charged with four cases of burglary and theft? A No sir, I have not — heard that, sir.”
******
Q Hadn t you heard when you so testified as to his being honest, on January 21st of 1936 in Corpus Christi for the possession of marihuana?”

The court permitted the first question and answer over certain general objections by appellant but sustained his objection to the latter question, with the following ruling:

“THE COURT: Yes, sir. I instruct the jury to disregard that. That’s highly improper.
[“MR. PEDIGO: We move for a mistrial, Your Honor. I don’t think the instruction is sufficient.]
“THE COURT: Well, I’ll overrule that. The jury is instructed to disregard that entirely. That’s improper. I ought to hold Mr. Flinn in contempt, but I’m not going to at this time. You know better than that; don’t do it again. Let’s proceed.”

While we need not pass upon the propriety of the court’s ruling on the first question and answer, in view of appellant’s general objection thereto we conclude that the latter question propounded to the witness by state’s counsel calls for a reversal of the conviction.

The question implied that appellant had been previously charged with possession of marihuana in Corpus Christi in 1936, and was in violation of the court’s ruling made at the beginning of the trial.

The inquiry, as so framed, when read in connection with the other questions propounded to the witness, in effect asserted as a fact that appellant had unlawfully possessed marihuana in Corpus Christi and was, for such reason also, improper. McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987; Pitcock v. State, 168 Tex.Cr.R. 204, 324 S.W.2d 855.

The question propounded, referring to an extraneous offense, was clearly improper and prejudicial to the appellant, and we are unable to say that its harmful effect upon the jury was removed by the court’s instruction. Under the record, the court should have granted a mistrial.

Upon another trial, evidence as to the reputation of the appellant for truth and veracity should not be admitted unless he testifies as a witness and the issue as to his truth and veracity is raised. See: Garrard v. State, Tex.Cr.App., 128 S.W.2d 33; Wadley v. State, 165 Tex.Cr.R. 273, 306 S.W.2d 373.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: SELLERS, Justice.

text:
    W. A. BLOUNT, Appellant, v. TENAHA OIL COMPANY, Appellee.
    No. 44.
    Court of Civil Appeals of Texas. Tyler.
    April 9, 1964.
    Rehearing Denied April 30, 1964.

      Richard E. McDaniel, McDaniel, Hunt, & Fairchild, Center, for appellant.
    Joe Davis Foster, Center, for appellee.
   SELLERS, Justice.

The plaintiff in the trial court, Tenaha Oil Company, a partnership, brought this suit, No. 16,747, against W. A. Blount, who resides in Shelby County, Texas, for the sum of $668.45. The cause of action is based upon two instruments in writing: one dated February 16, 1960, in the amount of $328.64, and the other dated February 23, 1960, in the sum of $339.81. Said instruments are attached to its petition as Exhibits A and B, respectively.

In answer filed by the defendant, he pleads res judicata in bar of the plaintiff’s recovery; and in support of his plea, the defendant set up a prior suit between the same parties in the same court, being Cause No. 16,730.

Upon a trial before the court without a jury, the trial court entered a judgment in favor of the plaintiff for $518.04, which is the amount sued for, less a credit of $150.41. From this judgment the defendant has duly prosecuted his appeal to this court.

The issue before this court is whether or not the cause of action relied upon is denied by the plea of res judicata. All of the pleadings in the prior suit were before the court, and the original petition in Cause No. 16,730 is a suit upon a verified account with the itemized sworn account attached to the original petition.

In answer to this petition, the defendant plead the two-year statute of limitation, and filed a motion for summary judgment. In answer to this plea, the plaintiff filed its first original amended petition. In this petition the plaintiff undertook to change its plea from a suit upon a verified account to that of a consignment, undertaking to show that the goods were delivered to the defendant for re-sale under a consignment which is attached as Exhibit A, and also sought to recover upon a check dated February 23, 1960, in the sum of $339.81.

The trial court found against the plaintiff on its plea of a consignment and sustained the plea of limitation as to all of the account, except the $339.81. The plaintiff likewise plead in its amended petition certain credits that were due upon the $339.81 check, reducing the amount due thereon to $189.40.

After sustaining the plea of limitation and allowing the credits on the check, the court dismissed the suit upon the check because, after the plea of limitation was sustained and the credits allowed, the amount, left was $189.40, which reduced the amount involved below the jurisdiction of the district court, and said claim was dismissed without prejudice from the suit. From this judgment the plaintiff appealed to the Court of Civil Appeals where the trial court’s judgment was affirmed. The court simply held that the plaintiff had wholly failed to show that the goods were sold on consignment and sustained the plea of limitation. Teneha Oil Company v. W. A. Blount, Tex.Civ.App., 368 S.W.2d 655.

The plaintiff, in its first amended original petition in the original suit between the parties, alleges that the defendant went out of business in February 1961. It is perfectly apparent from the record in this case that plaintiff’s Exhibit B, attached to its petition in the present suit, was also an exhibit in the first suit; and it is likewise evident from the record that Exhibit A in the present suit was not included in the original suit between the parties, although it was dated prior to Exhibit B and was for the sum of $328.64.

The record shows conclusively that the two checks in the present suit, being Exhibits A and B, were given during the time that plaintiff was selling its goods, wares, and merchandise to the defendant, as shown by its verified account in the original suit. These two checks were held up at the request of the defendant when they were given, because he had insufficient money in the bank to take care of same. Both checks were later sent through the bank in the ordinary course of business, and were turned down by the bank.

No reason was offered in the pleadings of the plaintiff why he did not include the check shown as Exhibit A for $328.64 in the original suit, although it was long past due and demand had been made for the payment of the same.

We are of the opinion that the plea of res judicata is good insofar as the check dated February 16, 1960, in the sum of $328.64 is concerned, for it was a part of the debt between the same parties at the time the original suit was filed and was not included therein. The law sustaining the above holding finds support in Tex.Jur.2d Edition, Sec. 89, p. 338:

“The general rule is that where suit has been brought for part of the items of a continuous running account and a judgment rendered, the judgment is res judicata as respects a subsequent suit on items that were due at the time of the former proceeding.”

The other check in the amount of $339.81, having been dismissed without prejudice from the prior suit, is not subject to the plea of res judicata; and after applying the credit of $150.41 allowed by the trial court on the check of $339.81, being Exhibit B, leaves a balance of $189.-40, for which plaintiff is entitled to recover from the defendant.

The judgment of the trial court is reformed and affirmed for the plaintiff for the sum of $189.40, and all costs in this proceeding is charged against the appellee.


author: PHILLIPS, Justice.

text:
    Sue STRONG et vir, Appellants, v. Otillie JOLLEY, Appellee.
    No. 11187.
    Court of Civil Appeals of Texas. Austin.
    April 15, 1964.

      Louis H. Owen, III, Arthur Mitchell, Austin, for appellants.
    E. M. DeGeurin, Austin, for appellee.
   PHILLIPS, Justice.

This case involves an appeal from a summary judgment granted appellee, defendant, in the trial court. Appellant in this Court and plaintiff below sued the appellee for specific performance of a contract to convey realty and for damages for breach of said contract. Appellee answered and filed a cross action for damages against appellant because of the loss of a sale of the property in question to a third party. The court granted appellee’s motion for a summary judgment as to appellant’s cause of action then severed appellee’s cross action for trial at a later date.

We reverse and remand the case for trial as we hold there were fact issues raised by appellant’s pleading which should have been passed upon before a valid judgment could be entered in the case. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Appellant, as purchaser, entered into a contract of sale with appellee as vendors., for certain land. The contract was entered into on May 30, 1958 for a total purchase price of $700. Appellant paid $13.54 down which left a balance of $686.46 to be paid in monthly payments beginning June 1, 1958. The contract further provided that in event of default in any of the covenants therein contained then the seller (appellee) at her option could declare the agreement null and void and all payments made up to that time would be considered the fair rental value of the property.

The installments from June through September 1958 were paid as agreed. Following this no installments were paid for seventeen months. On February 19, 1960 appellant made eighteen payments in a lump sum and brought the contract up to date. The appellee accepted the payments. Thereafter appellant made the monthly-payments until July 1960. The August 1960 payment was made on September 8, 1960, and the September 1960 payment was made on December 13, 1960. The October through December 1960 payments and the January and February 1961 payments were made on January 17, 1961.

As of the January 1961 date thirty four payments had been made and accepted totaling $460.36. Out of these thirty four payments, twenty one had been paid late and accepted late.

From March 1961 through May 1962, appellant made no payments.

On May 31, 1962, appellant received a note from appellee stating that appellee “presumed the agreement was off.”

On June 8, 1962, appellant wired appellee the full balance due under the contract which was $379.66. The draft was forwarded by Western Union to appellee; however, on June 9, Western Union reported to appellant that the draft had been returned for cancellation.

On June 11, 1962, appellant received a letter from appellee stating that appellee “would prefer to handle this as we originally agreed * * * have cancelled payment of the Western Union Money Order * * *

Appellant is before this Court on four points of error. The first complaining that an issue of fact exists as to whether or not in accepting past payments without insisting that the same be paid as provided for in the contract appellee had waived her rights to strict enforcement under the terms; or, that appellant by appellee’s conduct in accepting delinquent installments has been lulled into a false sense of security wherein appellee is now estopped from asserting a forfeiture inasmuch as appellant had been induced to believe that appel-lee did not intend to strictly enforce the forfeiture provisions of the contract. Appellant’s second point of error complains that appellee accepted appellant’s late payments without complaint precluding appel-lee as a matter of law from forfeiture of the contract without giving appellant actual notice that payment of the amount past due was demanded and allowing appellant a reasonable time to pay. Appellant’s third point of error is that her pleadings raise the fact that the legal title to the land was being held by appellee as collateral for the payment of a loan by appellant to appellee and that there are facts to show that a constructive trust arose in appellant’s favor to the land in question. Appellant’s fourth point of error is that the court erred for holding as a matter of law that no cause of action existed in appellant’s favor for damages because of appellee’s alleged breach of the contract for the sale of land to appellant.

Appellant also alleges in her petition that she has placed valuable improvements on the property in question that are worth many times the value of the land contracted for.

The Texas courts have held that the law looks with disfavor upon a forfeiture in connection with a contract for the sale of land. The vendor of lands remedy by recission has been declared to be a harsh and stringent one especially when a part of the consideration has been paid, and it is sought to forfeit the payment and recover or resell the land. Tom and Wife v. Louise Wollhoefer et al., 61 Tex. 277; Baines v. Clinton Park Development Co., Tex.Civ.App., 224 S.W.2d 729.

In 43-A Tex.Jur., Sec. 536, page 577 the general principles regarding waiver or estoppel in a situation such as the case at bar are set out. The right to claim.a forfeiture for the purchaser’s default may be lost or waived by the vendor. The right may be waived by agreement or by conduct on the part of the vendor in affirmance of the contract and indicating that he regards it as still subsisting, notwithstanding a default by the purchaser, or by showing an intention not to treat time as being of the essence of the contract, citing cases.

In the case before us, a majority of the payments made and accepted were late thus raising a fact situation under the law applicable to waiver or estoppel.

There has also been a fact question raised as to improvements placed on the property in question by appellant. In Moore v. Giesecke, 76 Tex. 543, 13 S.W. 290, the Supreme Court stated:

“The remedy by rescission is not favored, and, as has been said, slight circumstances, when they may be properly treated as indicative of a purpose upon the part of the vendor not to insist on that remedy, may be treated as a waiver of the right to rescind, unless its maintenance becomes necessary to enable the vendor to enforce the payment of the consideration for which he contracted to sell the land; and, when a suit for the recovery back of the land has been brought, where any portion of the purchase money has been paid, or where valuable and permanent improvements have been placed upon the land by the vendee, or by purchasers under him, and the defendant, when sued, brings into court, and offers to pay, the balance of the purchase money, with costs of suit, unless there exist strong countervailing equities, the money ought to be received, and a recovery of the land denied.”

Should the appellee have lost her right to insist upon a forfeiture by the establishment of facts evoking any of the above-mentioned rules of law such right may have been restored by notice to appellant fixing a new time for payment or performance. However, such notice must have allowed appellant a reasonable time within which to comply with the contract. See 43-A Tex. Jur. Sec. 539 and the cases there cited. Also see 107 A.L.R. 345.

Appellee’s letters to appellant presents a fact situation as to whether they were sufficient to reinstate a right to forfeiture, assuming that such right has been lost, also whether appellant was given a reasonable time in which to pay the balance due on the property and whether such balance was tendered within a reasonable time.

Fact situations were also presented with respect to appellant’s pleadings that title to the property in appellee was merely a mortgage securing a debt owing appellee by appellant, and with respect to appellant’s claim for damages for breach of contract. See Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985; A. L. Carter Lumber Company v. Saide, 140 Tex. 523, 168 S.W.2d 629.

In passing on a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the opposite party is entitled to the benefit of every reasonable inference which can be properly drawn in his favor. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233.

The judgment of the trial court is reversed and the cause is remanded for a new trial in accordance with this opinion.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    METALAB EQUIPMENT COMPANY, Appellant, v. SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14312.
    Court of Civil Appeals of Texas. Houston.
    April 2, 1964.
    Rehearing Denied April 30, 1964.

      William W. Byrd, Houston, for appellant.
    Ernest A. Knipp, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment sustaining a plea in abatement and dismissing this cause. Appellant sued for the balance due on the contract price of certain laboratory equipment. Appellee’s plea in abatement was based on the lack of jurisdiction of the trial court to hear the case by reason of the failure of appellant’s petition to allege, or otherwise show, that appellant had requested a hearing on the claim before the Board of Trustees of the School District and had prosecuted an appeal to the proper school authorities.

In Jud v. City of San Antonio, 143 Tex. 303, 184 S.W.2d 821, the Supreme Court of Texas held:

“It is familiar law that jurisdiction is the power to hear and determine a controversy, which, of course, includes the power to decide whether or not a pleading filed in the court is sufficient to state a cause of action as against the exceptions filed thereto. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641; Texas Employers’ Ins. Ass’n v. Ezell, Tex.Com.App., 14 S.W.2d 1018; 11 Tex.Jur. p. 711 et seq., Sec. 9.
“By Texas Rule of Civil Procedure, No. 90, it is provided that a general demurrer shall not be used. To dismiss a plaintiff’s case upon sustaining a plea to the jurisdiction on the ground that his petition is insufficient to state a cause of action when he is praying for judgment for an amount within the jurisdiction of the Court, is even a more summary proceeding than to sustain a general demurrer. This is true for the reason that, upon sustaining a demurrer the Court does not dismiss the case until the plaintiff has been afforded an opportunity to amend, whereas, upon sustaining such plea the plaintiff is not afforded that opportunity.
“ * * *
“The defendants press the argument with much force that plaintiff has alleged no character of cause of action whatever. Should it be granted that they are correct, and further that plaintiff will be unable so to amend his petition, in the light of the true facts, as to state a cause of action, it does not follow that the case should be affirmed. The trial court has ruled that it has no jurisdiction to consider the case at all, not even the exceptions to the petition, and that is the ruling under review here. We are not in accord with that ruling and that is the only question which we are authorized to decide.”

While Jud v. City of San Antonio seems to be decisive of the precise question presented by this appeal, the case must be reversed for an additional reason.

In Cook v. Neill, 352 S.W.2d 258, the Supreme Court of Texas reaffirmed the rule that in matters pertaining to the administration of school- laws involving only questions of law, it is not necessary to exhaust administrative appeals before resorting to the courts. Both parties to this appeal represent to the Court that the matters involved in this litigation pertain to the administration of school laws. The exclusive prior jurisdiction of the school authorities pertain only to such matters as are by law placed under their jurisdiction. Groce v. P. B. Yates Mach. Co., Tex.Com.App., 288 S.W. 161; McIntyre v. Hoblinski, Tex.Civ.App., 333 S.W.2d 697.

Since no evidence was presented at the hearing on the plea in abatement, appellant’s petition must b'e presumed to state the facts pled correctly and it must be construed in the light most favorable to appellant. Taylor v. United Ass’n of J. and A. of Plumbing, etc., Tex.Civ.App., 337 S.W.2d 421, ref., n. r. e.; Turman Oil Co. v. Roberts, Tex.Civ.App., 96 S.W.2d 724, writ ref,

Jt is clear that if only questions of law are present in this case and there are no disputed issues of material fact, it is not necessary to allege that administrative appeals have been exhausted. Appellee’s plea in abatement on the sole ground of the lack of such an allegation is, therefore, insufficient as a matter of law since appellant’s petition does not negative the possibility that the material facts in the case will be undisputed and that only issues of law will be presented for the determination of the trial court. A cause of action within the potential jurisdiction of the trial court was alleged.

The judgment of the trial court is reversed and the cause is remanded.


author: GRISSOM, Chief Justice.

text:
    Rhea Martin GIBBS, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 3870.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1964.
    Rehearing Denied May 1, 1964.

      Warren Burnett and Jerry Childs, Odessa, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, John P. Camp, Abilene, Woodward & Johnson, H. O. Woodward, Coleman, for appellee.
   GRISSOM, Chief Justice.

Rhea Martin Gibbs sued Texas Employers’ Insurance Association for compensation for total and permanent disability caused by an injury on March 25th, 1960, while he was working for Bridwell Oil Company. The court instructed a verdict for the defendant solely on the ground that claimant had not, as a matter of law, shown good cause for filing his claim more than 17 months after his injury. Gibbs has appealed. As stated, the only reason for instructing a verdict for the insurer was the court’s conclusion that Gibbs, as a matter of law, had failed to show good cause for his failure to sooner file his claim for compensation with the Industrial Accident Board. Ordinarily, that question is one of fact for the decision of a jury. Texas Employers’ Insurance Association v. Roberts, 135 Tex. 123, 139 S.W.2d 80, 83.

Gibbs suffered an accidental injury on March 25th, 1960, while in the course of his employment by Bridwell Oil Company. He was treated by Doctor Kemper from the 28th of March until he returned to work about three weeks later. His injury was first diagnosed as a lumbosacral strain. Later his doctor changed the treatment and, in July, 1961, lie concluded that Gibbs probably had a ruptured disc. He continued to work for Bridwell and to draw his regular pay until August 2nd, 1961, when he became unable to work, quit his job, again went to see Dr. Kemper, who sent him to Dr. Nash, in Dallas, who prescribed medicine for his trouble, as did other doctors thereafter. During the time that Gibbs continued working for Bridwell after his injury, he occasionally was unable to work, but, nevertheless, he was paid by his employer.

Stated from the viewpoint most favorable to Gibbs, as we are required to view the testimony because of the instructed verdict, the evidence pertinent to the question whether good cause existed for the failure of appellant to file his claim for compensation before September 13th, 1961, is substantially as follows:

Gibbs was aware that he was required to file a claim for compensation for this injury. He had filed claims for compensation before. On those prior occasions yellow printed claim forms were sent to him from Austin. Gibbs did not receive claim forms from Austin in this case. He had worked for Bridwell for more than eight years. Before he returned to work, about three weeks after the injury, his superintendent, Mr. Miller, sent word for Gibbs to come to the drilling rig. His wife drove him there. There, he talked to Mr. Miller, Mr. Curtis, his driller, and Mr. Lowrey, his tool-pusher. Curtis told Gibbs that Lowrey had some papers relative to his accident that had to be signed; that they were accident reports and form papers that had come from Austin; that they had filled them out. Gibbs saw that they were yellow slips of paper like those sent to him by the Industrial Accident Board so that he could file claims for previous accidents. His said superiors told him these papers had to be signed and sent to Austin or they were going to get in trouble with Bridwell; that they had to be sent to the Industrial Accident Board. Gibbs signed said papers; he then asked Curtis and Lowrey whether there was anything else to be filled out, or to be taken care of. Gibbs told them he was suffering and wanted to get away. They told Gibbs they would take care of it. Both Lowrey and Curtis said they would take care of it. Gibbs believed them. He had worked for them and he had worked for Curtis, his driller, for more than eight years. Gibbs testified that if Lowrey and Curtis had not told him that they would file his claim and, later, that it had been filed that he would have filed the claim himself; that about 30 to 40 days after he returned to work for Bridwell, Gibbs again asked Low-rey about the papers, Lowrey didn’t say anything at the time and it made Gibbs mad but, the next day, Lowrey came over and patted him on the back and said everything had been taken care of and for him not to worry about it; that Gibbs had no reason to disbelieve him. Gibbs testified that Mr. Miller, who appears to have been the supervisor over the entire job, told him that he would see they were taken care of. This statement was made in response to a question whether Miller had told Gibbs that he would mail his claim for compensation to Austin. There was evidence that, thereafter, Curtis brought him two compensation checks. On August 2nd, 1961, Gibbs was unable to continue working, he returned to his doctor; that doctor sent him to a “bone and joint” specialist in Dallas. He made three trips to that doctor in Dallas and on one of these trips the defendant’s agent contacted him in Dallas, took a state - ment from him and paid for his medicine. This happened on August 21, 1961. Shortly thereafter the same agent for the defendant insurance company refused to pay for more medicine prescribed by the Dallas specialist, whereupon Gibbs on September 11th, 1961, retained his attorney, who filed his claim with the Board on September 13th, 1961.

It is evident that both the employer and the insurer knew of Gibbs’ injury immediately after it occurred. Therefore, the insurance company was not prevented by Gibbs’ delay in filing a claim from promptly making an investigation. The test for determining whether good cause exists for failure to timely file a claim for compensation is whether the claimant prosecuted his claim with the degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances. Whether a claimant used •such diligence is ordinarily a question of fact. It is only when the evidence, construed most favorably for the claimant, admits of no other reasonable conclusion that it can be held as a matter of law that good cause does not exist. Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370, 372.

It has often been held that, if there is evidence of the exercise of some care and prudence in the prosecution of a claim, the sufficiency thereof is a question of fact for the jury. Green v. Texas Employers’ Insurance Association, Tex.Civ.App., 339 S.W.2d 368, 371, (Ref.N.R.E.); Texas Employers’ Insurance Association v. Crain, Tex.Civ.App., 259 S.W.2d 905, 907 (Ref. N.R.E.). It is evident from the testimony mentioned that Gibbs exercised some care and prudence in the prosecution of his claim.

Appellee has presented an excellent brief in support of the instructed verdict. It stresses the fact that cases cited by appellant should be distinguished because they did not have certain facts that exist in this case, that is, that the delinquent employee suffered constant pain and had his employers readily accessible, so he could inquire about filing his claim. If Gibbs’ belief that his superiors had filed his claim would have been entertained by a reasonably prudent person under the samé or similar circumstances then good cause existed for not sooner filing it. The reasonableness of Gibbs’ conduct in not sooner filing his claim must be measured by the facts he knew. Texas Employers’ Insurance Association v. Portley, 153 Tex. 62, 263 S.W.2d 247. In Texas Employers’ Insurance Association v. Roberts, 135 Tex. 123, 139 S.W.2d 80, the Supreme Court held that a claimant’s good faith belief that his injury was not serious might constitute good cause for delay in filing a claim and the fact that claimant suffered constant pain did not affect the issue of good cause. See also Texas Employers Insurance Association v. Hancox, 162 Tex. 565, 349 S.W.2d 102, 104. Under this holding the fact that Gibbs was in almost constant pain and his superiors were immediately available for questioning could not be controlling on the question of good cause if he reasonably believed they had filed his claim for him.

A person of ordinary prudence, with Gibbs’ knowledge, could have believed that his claim had been timely filed. See Texas Employers’ Insurance Association v. Portley, 153 Tex. 62, 263 S.W.2d 247, 250; American Employers Insurance Company v. White, Tex.Civ.App., 331 S.W.2d 836 (Ref. N.R.E.). We think the able trial court erred in instructing a verdict for the defendant. The judgment is reversed and the cause is remanded.


text:
    James B. SIMPSON, Appellant, v. Modesta SIMPSON, Appellee.
    No. 3852.
    Court of Civil Appeals of Texas. Eastland.
    March 13, 1964.

      George Thomas, Big Spring, Pat Baskin, Midland, for appellant.
    Grover Cunningham, Jr., Big Spring, for appellee.
   GRISSOM, Chief Justice.

James B. Simpson has appealed from an order granting a temporary injunction, without requiring a bond, in a purported divorce case. Upon a hearing of an application for a temporary injunction by Modes-ta Simpson, both parties testified, in effect, that they were not married; that the former husband had obtained a divorce in Old Mexico from Modesta Simpson and had married another woman. Mrs. Simpson testified that Mr. Simpson is not now her husband; that he had previously presented her with a judgment of a Mexican court granting him a divorce from her, whereupon, they had executed a prior agreement and she had paid him $20,000.00 in satisfaction of his claim to an interest in a ranch and, thereafter he married another woman, and that she brought this suit simply because her former husband required a Texas divorce and sheriff to move him from her ranch. Texas Rules of Civil Procedure, rule 684 requires execution of a bond before issuance of a temporary injunction. R.C.P. 693-a provides an exception to that rule by stating that in a “divorce case” the court may dispense with the necessity of a bond in connection with an ancillary injunction in behalf of one “spouse” against the other. It is evident from all the evidence, particularly that of the plaintiff who obtained the injunction, that Mrs. Simpson does not have a probable right to recover a divorce; that this is not, in reality, a divorce case and that the injunction was not issued in behalf of one “spouse” against another “spouse.” Therefore, the exception to requirement of a bond as a prerequisite to an injunction provided by Rule 693-a is not applicable. It was so held by our Supreme Court in Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 and in Crittenden v. Heckman, Tex.Civ.App,, 185 S.W.2d 495, 496. See also Ex parte Coward, 110 Tex. 587; 222 S.W. 531; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 and Gray v. Gray, Tex.Civ.App., 354 S.W.2d 948, (Writ Dis.).

The order appealed from is reversed and the temporary injunction is vacated.


text:
    Rita CAMPBELL et al., Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 3867.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1964.
    Rehearing Denied May 8, 1964.
    - Huff &' Bowers, Robert W. Gauss, Lubbock, for appellants.
    McMahon, Smart, Sprain, Wilson & Camp,.J. M. Lee, Abilene, for appellee.
   GRISSOM, Chief Justice.

Leonard David Campbell, an employee of FMC Corporation at Plainview jumped, or fell, from a boat into Lake Stamford, in Haskell County, and drowned while he was attending a company sponsored outing.. His widow and children brought this suit to set aside an award of the Industrial Accident Board. The insurance company’s motion for a summary judgment was sustained and judgment accordingly entered for it. Said plaintiffs have appealed. ■■

Plaintiffs alleged that on June IS, 1962, Mr. Campbell was an employee of FMC’ Corporation at Plainview; that, while he was engaged in the course of his usual and regular employment for FMC Corporation, he was injured “in that while on a company sponsored party-picnic and while in the course and scope of his employment with his employer and while riding in a small boat, the deceased fell or was caused to fall, jumped, or was caused to jump out of the boat and thereafter drowned and that his death was .brought .about by this injury .on the job within the meaning of that term under the Workmen’s Compensation Act.” Plaintiffs alleged Campbell’s death was a direct and proximate result of an accident which happened while he was engaged in the. performance of his regular duties as an employee of said corporation. The defendant’s verified motion for a summary judgment alleges as a fact that on the night Campbell drowned his employment had terminated for the day and week at 5 :00 o’clock P.M.; that thereafter a weekend party was held in Haskell County by said employer for the pleasure of its employees; that attendance was not compulsory; that employees were not paid for attending and received no remuneration therefor; that only company employees attended the picnic; that no customers were present; that no business was conducted or intended to be conducted; that Campbell was not asked to perform any service for his employer at said gathering and, upon arriving at the site of the picnic, he went joy riding in a motor boat at the lake, jumped over the side of the boat into the lake and drowned; that he was not requested to get in the boat and was not performing any service for his employer at the time.

A portion of the deposition of Mrs. Campbell was attached to said motion in which she swore that, so far as she knew, the only purpose of the picnic was just a friendly social “get-together”; that her husband did not get paid for it and that, she guessed it would be fair to assume, that while her husband was riding in the motor boat he wasn’t engaged in company business.

The defendant also attached to its said motion, the affidavit of Mr. Childress, the manager of the Plainview office of said corporation, in which he swore that Campbell attended the picnic after completing his day’s work; that he arrived at the picnic about 8:45 P.M.- and that he thereafter jumped out of a boat into the lake and drowned. He swore that attendance by employees was voluntary; that none were required to attend; that all employees were notified that attendance was voluntary and .that, if they did attend, they did so on their own time; that no employees were paid for attending the outing; that no company business was conducted or intended to be conducted; that the outing was only for entertainment of those employees that elected to go in order that théy might fish, have refreshments and enjoy themselves ; that no customers, prospective customers or company men were invited; that no advantage, reward, or remuneration of any kind was obtained, or intended to be obtained, by any employee by attending the outing; that none of the employees, including Mr. Campbell, did, or were expected to do, anything in connection with said outing for the employer. There was also attached the affidavit of the assistant manager who swore tó substantially the same things.

Plaintiffs filed an unverified reply to defendant’s motion for a summary judgment in which they alleged that whether Campbell was engaged in the course and scope of his • employment was a controverted fact; that the affidavits attached to defendant’s motion for a summary judgment showed conclusively that Mr. Campbell “was in attendance on a company sponsored picnic;” that the statements in said affidavits were incompetent and inadmissible, because they were statements or conclusions of law; that sponsoring of the picnic by the employer was for the purpose of furthering good relations between the employer and employees; that the court could take judicial notice that a company sponsored picnic was a fringe benefit; that whether Campbell was engaged in furtherance of his employer’s business was, at least, a question of fact; that when the incompetent parts of the affidavits were removed the facts stated did not show deceased was not engaged in his employer’s business at the time he met his death; that, on the contrary, the company sponsored picnic was given for the purpose of furthering the affairs of the employer and attendance by deceased was an act in furtherance of his employer’s affairs. The answer was not sworn to. Plaintiffs filed no controverting affidavits, nor did they, in any manner other than as shown above refute the statements of fact in the affidavits supporting the defendant’s motion for a summary judgment.

Appellants’ points are (1) that the court erred in holding, as a matter of law, that deceased was not engaged in the course and scope of. his employment at the time ' he drowned; (2) erred ■ in holding that there was no question of fact; (3) erred in granting defendant’s motion for a summary judgment. Appellants say that all of their complaints are directed at the error of the trial court in granting defendant’s motion for a summary judgment. Appellants simply say that the affidavits filed by the defendant raised issues of fact and therefore the court erred in rendering judgment for defendant. In that connection appellants admit that deceased met his death while attending a company sponsored picnic; that attendance was not compulsory; that his death did not occur during regular hours of his employment, but they say that the statements in defendant’s affidavits that he received nothing for attending the picnic, whether a company sponsored picnic is, in and of itself, remuneration, the statement that no company business was conducted or intended to be conducted, are all conclusions of fact, inferred by said affiants and accepted by the trial court as facts, and, therefore, the court erred in rendering said judgment, despite appellants’ failure to refute said affidavits or excuse their failure to do so.

Appellants cite Frazier v. Glens Falls Indemnity Company, Tex.Civ.App., 278 S.W.2d 388, (Ref. N.R.E.), and quote from that opinion to the effect that whether there had been a breach of the cooperation clause of an insurance policy is an ultimate conclusion to be drawn from all the evidence. Appellants say that whether the company sponsored picnic was given merely for recreation of its employees was an ultimate conclusion of fact as to which reasonable minds might differ. In support of these contentions appellants cite, among others, Bliss v. City of Fort Worth, Tex.Civ.App., 288 S.W.2d 558, (Ref. N.R.E.) and Pattison v. Highway Insurance Underwriters, Tex.Civ.App., 292 S.W.2d 694, (Ref. N.R.E.).

Appellants say that the effect of entering said judgment was to hold, as a matter of law, that (1) a company sponsored picnic is not a part of the company’s business and (2) that employees injured while attending such a picnic are not within the course and scope of their employment.

Appellee’s counterpoint is to the effect that the court correctly sustained its motion for a summary judgment because it conclusively showed that at the time Campbell drowned he was not acting within the scope of his employment and, appellants having failed to present any opposing evidentiary data which could raise an issue of fact as to whether Campbell was within the course of his employment or to show they were unable to do so, the court properly accepted the facts set forth in the affidavits supporting its motion and concluded that at the time he drowned Campbell was not acting within the scope of his employment by FMC Corporation. To establish a compensable injury it must be shown that the injury was received while the employee was engaged in the employer’s business.

The facts sworn to in connection with appellee’s motion for a summary judgment show that Mr. Campbell at the time he drowned was not acting within the scope of his employment, or on behalf of FMC Corporation, but, on the contrary, that he was engaged in a mission of his own. This is unquestionably true, unless the fact that at the time he jumped from a boat and drowned he was attending a company sponsored picnic which had for its purpose good relationship between the company and its employees, changed that legal situation. We hold that it did not. As stated, appellants did not counter appellee’s affidavits with affidavits, depositions, or other “evidence” to the contrary. All they did was to file a pleading replying thereto in which they alleged there were issues of fact. This was not sufficient to raise a fact issue. In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 951, Judge Walker speaking for the Supreme Court said:

“When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. * * If the defendants expected to defeat the motion for summary judgment by showing an issue of fact as to whether the note was conditionally delivered, it was incumbent upon them to come forward with 'evidence’ sufficient to raise that question.”

In Rountree v. Bridwell, Tex.Civ.App., 269 S.W.2d 824, (Ref. N.R.E.), the San Antonio Court in an opinion by Judge Norvell said:

“We have set forth the essential facts disclosed by defendants’ uncontradicted affidavits as to the 'methods’ of operation under the lease relating to the marketing of the gas produced. In view of these affidavits, it was incumbent upon appellees to contradict the same or show that they were not in a position to do so. This was not done and the court was justified in accepting the statements therein contained as true and acting accordingly. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236.”

The facts in Palm v. La Mantia Bros. Arrigo Company, Tex.Civ.App., 287 S.W.2d 208, 210, (Ref. N.R.E.), are similar to the facts of this case. Here, there was no controverting affidavit raising an issue of fact, only an unsworn answer asserting that an issue of fact existed. There, there was an affidavit attached which was general and did not properly controvert the fact sworn to by appellee and an answer asserting there was an issue of fact. Here, there is only the unsworn answer of appellants with no affidavit, general or otherwise, denying the facts shown in appellee’s affidavits, particularly, those which showed that Campbell was not acting within the scope of his employment or for his employer at the time of his death.

No Texas case dealing with company sponsored outings is cited. However, there are cases from other jurisdictions which hold that injuries received by an employee under the circumstances shown by defendant’s affidavits were not received in the course of employment and not compensable. In Stout v. Sterling Aluminum Products Company, (Mo.App.), 213 S.W.2d 244, the Court of Appeals held that an injury received by an employee falling in a public park while attending a company sponsored picnic, which he was not required to attend was not compensable, despite benefits the employer might receive by creation of good will. The same holding was made in cases from other states cited in 115 A.L.R. 993.

In McFarland v. St. Louis Car Company, Mo.App., 262 S.W.2d 344, the same court decided a company baseball team case. There, the employer furnished uniforms and paid for some other equipment for a ball team which used the company’s name, but it played after hours and received no pay. It was held that an injury suffered by an employee ball player under such circumstances did not arise out of and in the course of his employment and that ball playing was not an incident of his employment.

In Auerbach Co. v. Industrial Commission, 113 Utah 347, 195 P.2d 245, it was held that a dry goods company’s cashier who was injured in an automobile accident while on a trip to play basketball on a team sponsored by her employer was not injured in the course of her employment, where she was not hired as a basketball player and was paid only as a cashier.

In Berry v. Colonial Furniture Company, 232 N.C. 303, 60 S.E.2d 97, the Supreme Court of North Carolina held that an injury sustained by a credit manager of a furniture company while on a fishing trip at the employer’s expense and riding in a company truck after the store had closed for the day, although the trip was paid for as a consideration in connection with the employment, was not an accident arising out of and in the course of his employment. See also Heaton v. Ferrell, Mo.App., 325 S.W.2d 800.

Appellee’s motion for a summary judgment was supported by affidavits sufficient to establish facts which if proved at the trial would have entitled the appellee to an instructed verdict. The facts shown established that Campbell was not acting in the course of his employment for FMC Corporation when he drowned. This required appellants to present opposing evi-dentiary data raising an issue as to such material fact, or to excuse themselves from not doing so. Appellants did not take the required action. They did not even attempt to present any evidentiary data raising an issue of material fact or to show their inability to do so. Therefore, the court did not err in accepting the facts shown by appellee’s affidavits as true and in granting appellee’s motion for a summary judgment. Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492. See also Smith v. Campbell, Tex.Civ.App., 361 S.W.2d 462; Stafford v. Wilkinson, 157 Tex. 483, 304 S.W.2d 364 and Schepps v. American District Telegraph Company, Tex.Civ.App., 286 S.W.2d 684.

The judgment is affirmed.


author: CODLINGS, Justice.

text:
    Jack T. DAVIS, Appellant, v. Walter B. McCLURKAN et al., Appellees.
    No. 3868.
    Court of Civil Appeals of Texas. Eastland.
    April 3, 1964.
    Rehearing Denied May 1, 1964.
    Robert Buntyn, Denton, for appellant.
    Minor & Knight, Robert Weldon Knight, Denton, for appellees.
   CODLINGS, Justice.

This suit was brought by Walter B. Mc-Clurkan and other plaintiffs against Jack T. Davis, Max Davis and William Davis, seeking to partition a 259 acre tract of land in Taylor County between the record owners. Plaintiffs claimed to be owners of an undivided l/^rd interest by reason of a sheriff’s deed dated December 4, 1962 conveying to them the interest of'the said Jack Davis in the land. The sheriff’s deed was based upon and under an execution levied upon the land on October 8, 1962. In case the property was found to be incapable of partition in kind, plaintiffs prayed the court to appoint a receiver to have the property sold. Plaintiffs also sought judgment removing the cloud from their title by reason of an affidavit filed of 'record in Taylor County by defendant Jack Davis, claiming that the i/^rd interest owned by him was at the time his homestead.

It was stipulated by plaintiffs and by the defendants, other than Jack Davis, that such defendants were the owners of a ^rds undivided interest in- the land; that the controversy involved is between plaintiffs and Jack T. Davis concerning the ownership of the remaining l/^rd interest; that if plaintiffs should prevail they would sell the Jack T. Davis ^árd interest to such other defendants who would purchase same at an agreed price of $7,500.00. The trial was before a jury which found in answer to the single special issue submitted that “on October 8th, 1962, the undivided interest of the defendant Jack T. Davis in and to the 259 acre tract of land” was not the homestead of the said Jack T. Davis and family. Based upon the pleadings, the evidence, and the verdict, judgment was entered decreeing that Jack T. Davis had no homestead rights in the land involved at the time execution was levied upon his }4rd interest, and that by reason of the sheriff’s deed purporting to convey the interest of Jack T. Davis and wife in the land to plaintiffs, said plaintiffs acquired and became vested with an undivided yird interest therein. Jack Davis has appealed.

Appellant Jack Davis presents one point contending that the court erred in admitting into evidence over his objection certified copies of tax rendition statements certified to by O. N. Segraves, Tax Assessor and Collector of Denton County, which showed that certain real property in the City of Denton, Texas, was rendered in the name of Jack T. Davis, for the years 1961 and 1962, and that a homestead exemption on the property was allowed for both years. Appellant urges that the documents admitted in evidence were ex parte written statements and that there was no evidence to identify or authenticate such statements; that no predicate had been laid for their introduction and no notice given that a certified copy would be used; that such documents constituted hearsay evidence and appellant' was deprived of the right of cross examination.

Appellees contend that the court did not err in admitting such certificates or documents in evidence, urging that same are admissible under Article 3731a, Sections 1 and 3, Vernon’s Ann.Tex.Civ.St. Appellees further contend that even if it should be found that it was error to admit such documents in evidence, it was not reversible error; that Rule 434, Texas Rules of Civil Procedure places the burden on appellant to show that any error complained of amounted to such a denial of the rights of appellant that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment and that there is no such showing.

The ultimate issue involved in this case is that of homestead, that is, whether or not on October 8th, 1962, the undivided interest of the defendant, Jack T. Davis, in and to the 259 acre tract of land in question was the homestead of appellee and family. The jury found that it was not. The record shows that appellant Davis filed an affidavit in the deed records of Taylor County claiming such land as his homestead. Appellee by way of answer alleged that on January 5, 1962, he and his wife had executed and filed in the deed records of Taylor County an affidavit designating his Yzrd interest in the Taylor County land as their homestead; that at the time of executing and filing such affidavit appellant owned no other real property in the State of Texas; that prior and subsequent to the execution and recordation of his homestead affidavit appellant did those acts and made those preparations to enter upon and occupy his designated homestead in accordance with the laws of the State of Texas; that the conveyance of appellant’s interest in and to the property in question by the sheriff’s deed dated December 4, 1962, was therefore null and void in that it attempted to take from appellant his homestead contrary to the constitution and laws of the State of Texas.

Bearing upon the question of whether he had established a homestead interest in the land appellant testified in substance as follows: That he had not lived in Taylor County for at least seventeen years, had not lived on or worked any part of the 259 acre tract in question for over twenty years; that.he has lived in Denton County, Texas since 1952, and still resided there at the time of the trial, and for a period of ten years has operated a retail bakery business in that city; that he was served with a citation in a suit on debt in excess of $9,-000.00 which suit had been filed by ap-pellees prior to the time that appellant filed his affidavit designating his undivided 1/3 rd. interest in the 259 acre Taylor County tract of land as his homestead on January 25, 1962, and that he had made no attempt or actual preparation to move on or work said land at the time execution was levied on said Taylor County land, or at the time the deed was executed conveying appellant’s interest in the land to appellees, or at the time of the trial. Appellant further testified that on January 25, 1962, when he filed the affidavit designating his undivided interest in the Taylor County land as his homestead he owned a home located at 1705 Carlton Street in the City of Denton in which he and his family then resided; that at the time of the trial he was involved in a law suit in Denton County in which he still claimed an interest in the Denton County home; that in May of 1962, appellant was evicted from his home at 1705 Carlton Street in the City of Denton and thereafter rented a home on Lindsay Street 'in that city where he and his family resided for a period of two months; that on May 12, 1962, appellant purchased a house and lot at 1013 Edinburg Lane in the City of Denton and he and his family immediately took possession of such premises wherq they continued to reside until the time of the trial; that when appellant purchased the home at 1013 Edinburg Lane in Denton he assumed the balance owing on a promissory note which was in the original sum of $14,000.00, and provided for monthly payments of $105.00. Appellant further testified that the 259 acre tract in Taylor County was leased to one Joe Horton until July of 1962, under which lease the usual and customary crop rentals were paid to the owners. Since 1962 the Taylor County land has been worked by Max Davis and William Davis, brothers of appellant, and appellant has received the usual crop rentals according to his interest in the land. At the time of the trial Max Davis and William Davis were continuing, to cultivate said tract of land and appellant was in no way connected with such operation but was receiving only his l/^rd of the customary crop rental. Appellant stated that the only preparation he had made after filing his affidavit designating his 1/3rd interest in the Taylor County land as his homestead on January 25, 1962, up until the time of trial was that he had purchased a tractor, mower and planter for the sum of $300.00, but that such machinery had been at all times since its purchase in' January, 1963, located in Denton and had never been located on or used to cultivate the Taylor County land.

The law is well settled in Texas that “ * * * in order to impress upon property a homestead character, in the absence of actual occupancy thereof, there must be an intention by the head of the family to reside upon it with his family as a home, coupled with some overt act of preparation evidencing that intention. Mere intention alone is not sufficient.” Gilmore v. Dennison, 131 Tex. 398, 115 S.W. 2d 902. It has also been held that a mere collection and use of rents from land claimed as a homestead will not “sustain homestead” of such' a claimant. Vaughn v. Vaughn, Tex.Civ.App., 279 S.W.2d 427, (Ref. N.R.E.). Our Supreme Court in Cheswick v. Freeman, 155 Tex. 372, 287 S.W.2d 171, restated the rule announced in Gilmore v. Dennison, supra and held- that where a plaintiff testified he intended to make certain property his homestead, but did not place any improvements upon the land prior to moving onto it after levy of ;execution, and the evidence showed that the plaintiff was not prevented from occupying said land prior thereto by unavoidable circumstances, and no overt act evidenced his intention to occupy it, the property did not become his homestead prior to the levy of the execution thereon and it would not be exempted from execution sale. In the instant case appellant Jack T. Davis placed no improvements of any nature upon the Taylor County land. He never occupied it but on the contrary was at all times pertinent hereto residing with his family in their home in the City of Denton. His mere intention to occupy the Taylor County land as a homestead at some indefinite future date was not sufficient to raise a fact issue on the question of homestead but on the contrary showed conclusively that the land in question was not his homestead. In this state of the record the error, if any, complained of by appellant in admitting into evidence the documents purporting to be certified copies of the records of the Denton County Tax Assessor and Collector was harmless error within the contemplation of Rule 434, T.R.C.P.

For the reasons stated the judgment is affirmed.