author: WOODLEY, Judge.

text:
    Louie Bill BRIGNON, Appellant, v. The STATE of Texas, Appellee.
    No. 39180.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied March 23, 1966.
    Bill Pemberton, Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful transportation of beer, whisky and wine in a dry area; the punishment, six months in jail and a fine of $500.

Trial was before a jury on a plea of not guilty.

The state offered proof and it was orally stipulated that Hunt County was a dry area and the court so charged the jury.

The statement of facts in narrative form, agreed to by counsel and approved by the trial court, reflects the following.

Patrolman Dale Bryce, of the Texas Department of Public Safety, testified substantially as follows: “that at or about 5:00 P.M. on the 7th day of May, 1965, he was standing on a public highway in Hunt County, Texas, working with other officers of the Texas Department of Public Safety and was in the process of checking driver’s licenses of all motorists who were using the highway; that one of the other highway patrolmen flagged the truck that the defendant, Louie Bill Brignon, was driving and operating, and that the truck when stopped on the highway had two other people in the cab of said pickup truck; that Officer Bryce saw in the bed of the pickup truck one case of Pearl Beer and in the floor board of the pickup truck a paper sack with the top of a glass bottle which appeared to him to be a liquor bottle. That he asked the defendant, Louie Bill Brignon to produce his driver’s license; that the defendant did then and there produce the said driver’s license. That Officer Bryce asked the defendant Louis Bill Brignon if the case of beer was the only liquor in the pickup truck, to which the defendant replied ‘Yes it is’. Officer Bryce then asked the defendant to get out of the pickup and then picked up the sack containing one pint bottle of Old Crow Whiskey and again asked the defendant, Louis Bill Brignon if this was all the liquor in the pickup to which the defendant replied ‘Yes, that’s all I have.’ Officer Bryce then requested Texas Liquor Control Board Agent T. L. Baker to come to the truck and a search was made by Mr. Baker of the pickup resulting in the finding of three one-half pint bottles of Old Crow Whiskey and a one-fifth gallon of wine in various sacks under the pickup seat, and a case of Pearl Beer behind the pickup seat.”

Inspector T. L. Baker, of the Texas Liquor Control Board, “testified that he had been summoned by Officer Bryce to come to the defendant’s pickup truck and that he made a search of defendant’s pickup and found the same two cases of Pearl Beer, the one pint bottle of Old Crow Whiskey, the three one-half pint bottles of Old Crow Whiskey and a one-fifth gallon of Italian Swiss Colony wine located in the pickup as previously testified to by Officer Bryce.”

Inspector Baker testified that the liquor confiscated was marked and stored by him and had remained in his possession until the time of the introduction in evidence.

Appellant did not testify.

It was stipulated that two cardboard cases marked Pearl Beer, which the witnesses testified contained beer, and their contents were introduced in evidence with the contents still sealed within the cardboard boxes which were never opened.

Following the verdict of the jury appellant employed counsel who filed motion for new trial and diligently presents this appeal urging fundamental error in the failure of the trial court to appoint an attorney for appellant in his trial before the jury.

The agreed statement of facts reflects that on June 22, 1965, the case being called for trial: “The State of Texas announced ready for trial, and the defendant not having an attorney, was asked by the Court if he had an attorney. The defendant answered he did not. The Court then asked the defendant if he had talked to an attorney; the defendant answered he had not. The Court then asked the defendant if he wanted a lawyer; the defendant answered he did not. The defendant then announced ready for trial; and the jury was selected and duly empaneled; the jury panel was examined by the State and the Court explained to the Defendant that he had a right to ask any questions of the jury panel that he desired in order to test their qualifications as fair and impartial jurors. After an explanation about strikes, he said he understood. The defendant asked no questions. Then the jury was selected and duly empaneled and sworn, the information read and thereafter the defendant again acknowledged he desired no attorney and entered a Plea of Not Guilty; whereupon the State of Texas called-- its first witness * *

The right to have the assistance of counsel carried with it a correlative right to dispense with a lawyer’s help. Adams v. U. S., 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Juelich v. United States, 5 Cir., 342 F.2d 29.

We think it clear under the record that appellant was not without the assistance of counsel at his trial because of in-digency but by choice.

Other claims of error urged are without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Ex parte Leo AXEL.
    No. 39432.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Robert Darden, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order in a habeas corpus proceeding denying bail to appellant upon a complaint charging him with rape.

It is made to appear that subsequent to the entry of the order appealed from an indictment has been returned charging appellant with said offense, and the question of his right to bail upon the charge by complaint has therefore become moot. Ex Parte Bowles, 166 Tex.Cr.R. 346, 314 S.W.2d 108; Ex Parte Guajardo, 171 Tex.Cr. R. 328, 350 S.W.2d 206; Ex Parte Bowie, Tex.Cr.App., 368 S.W.2d 767.

The appeal is dismissed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge.

text:
    Gene Harold PETERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39357.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Henry V. Sanchez, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, five years in the penitentiary.

The only issue raised in appellant’s brief before this court is whether or not the evidence is sufficient to support the jury’s finding that the assault was committed with the intent to murder with malice.

Viewed in the manner most favorable to the state, the evidence reveals that appellant had been working for the Cooper Exterminating Company in Harris County for about three weeks prior to the date of the offense. His job consisted of soliciting business for the company, and he was compensated by receiving a percentage of the company’s fee after the extermination work was completed.

On the afternoon of February 23, 1965, appellant entered the company office and was paid a commission by his employer, Willard Bell, the complaining witness, for an exterminating assignment which had been solicited by appellant. There followed a disagreement over salary, and appellant demanded to be paid in advance for other jobs he had solicited but which had not yet been completed. When Bell refused, appellant became angry and began cursing Bell, whereupon he was told that if he persisted in such conduct he would be fired. Appellant replied that if he were fired, that would be the biggest mistake Bell would ever make in his life. He then reached in his pocket, pulled out a pistol, and fired twice at Bell, one round grazing the victim’s hair as he leaped up from his desk and ran toward the restroom. In response to the prosecutor’s questions concerning what appellant said as he fired these shots, the complaining witness stated:

“He said I will shot you in the leg to show you how it hurts, and then in the body and heart.”

Bell took refuge in the adjoining restroom and locked himself in. For approximately 45 minutes appellant refused to let the witness come out of the restroom, during which time he also refused to allow other personnel in the office to leave. At one point he fired a third shot into the baseboard near the restroom door “to scare him.” At other times when Bell started to come out of the restroom, appellant would point the pistol at him. When witness Martin Jeffers, a fellow employee, attempted to leave the office, appellant told him he would kill him if he did not come back. At another time a female employee asked if she could leave, and appellant replied that “nobody was leaving.” To get appellant to go away, Bell testified, “ * * * I gave him all the money I had in my billfold.” The money, about $35, was passed under the restroom door to witness Jeffers, who handed it to appellant, who then left.

When appellant took the witness stand, his counsel developed the fact that he had been found to be a youthful offender by a New York court for a robbery committed in 1953, and the state elicited testimony on cross-examination to the effect that he had violated a subsequent parole. His contention that the assault was committed in self-defense was rejected by the jury, and no other testimony was elicited in his behalf.

Even without the surrounding facts, intent to kill may properly be inferred from the fact that appellant committed the assault with a deadly weapon. Hernandez v. State, Tex.Cr.App., 375 S.W.2d 285; Flores v. State, 169 Tex.Cr.R. 2, 331 S.W.2d 219. That appellant acted with malice could certainly be concluded from his statements during the incident, from the long period of time during which he continued to threaten and shoot at the complaining witness, and from his threatening manner toward the other employees. We find the evidence sufficient to sustain the conviction.

There are no formal bills of exception, and we find no error presented in appellant’s informal bills.

The judgment is affirmed.


text:
    Bobby Ray CUMBY, Appellant, v. The STATE of Texas, Appellee.
    No. 39146.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Rehearing Denied March 23, 1966.

      Lumpkin, Watson & Smith, Warren E. Zimmerman, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., John B. Reese, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to rob; the punishment, two years.

William L. Cook testified that on closing his grocery store about 9:35 p. m., February 25, which was well lighted in front by a light from the store and a large yard light next door, the appellant, with his hands down by his side and facing the lights approached him and said, “Give me the money,” or “Give me that sack”; that on telling the appellant to “Go on,” the appellant raised a gun, and he (Cook) swung at him with a money sack but did not hit him, and the appellant shot him three times; that while he was taking his gun from his pocket the appellant ran, and Cook shot twice but did not hit him. While testifying, Cook identified a coat exhibited to him, which was shown to belong to the appellant, as looking like the coat the appellant was wearing at the store. Cook testified that he had his back to the lights when the appellant approached him, and that appellant was facing both lights and was about ten or twelve feet from the light over the store window. Cook also identified the appellant as the person who had shot him at the store, when he saw him standing in the hall in front of the door to his hospital room.

Ronald Eugene McDonald testified that on February 2, he heard a conversation between Claude Scott, Obie Swain and the appellant which was in part as follows:

“Q Did Bobby Ray Cumby (appellant) say he had some money?
“A No, needed some money.
“Q Did you all talk about getting some money?
“A We? They talked about getting some money.
“Q What did they say?
“A They wanted money to go to this dance, and they was going to rob to get it.
* * * * * *
“Q Did Bobby Ray and Claude Scott say who they were going to rob?
“A They had a plan, they said they had been casing Mr. Cook out (grocery store).
‡ ‡ i{i ‡ sf: ?!«
“A Well, at this time that Bobby Ray Cumby (appellant) and Claude Scott come in, Bobby Ray say he needed some money to go to Oklahoma, and they asked me would I go with them; I asked where they were going and they said they were going over to Cook’s. Bobby Ray and Claude Scott had been casing Mr. Cook * *

The state introduced two written statements made by the appellant which read in part as follows:

First Statement: “My name is Bobby Ray Cumby and I am 19 years old. Before Christmas I heard some boys talking at Carver High School about all of the armed robberies that had been taking place and I heard them say that the gun that was used in the robberies was in a locker in the school. I went up to where the lockers were and I don’t remember which one and I opened the door to the lockers trying to find the gun. I found it in one locker and it was in a trench coat. I took the gun and carried it to my house. My mother did not know that it was there. On Thursday night last week which would be the 25th day of February, 1965 I thought of robbing Cook’s Grof. Market. I went down to the .Burger stand at 12th and North Hughes and I sat around for a while. This was in the early evening. I left the burger stand and went on down toward the pool hall. There was not many people there and about 8:45 p. m. I came on back to my house and got the gun which was out in the back yard by the back fence, where I had put it. I got the gun and put it in the green trench coat that I was wearing and then I walked on down to where Cook’s store is and I walked around for a while trying to stall for time. I walked around to the north side of the store and I waited for Mr. Cook to come out. About ten or fifteen minutes later, Mr. Cook came out and started toward his car. I came around the building from the north and I told him to let me have all of the money that he had. He started walking toward me and I had the gun in my hand and I had it cocked. * * * I don’t know too much after this and all I can remember is that after the shot I started to run. I ran south and then turned around and ran back north on a little street behind the store. I threw the gun in a trash can * *
Second Statement: “I want to say that the Green Trench Coat that I was wearing last Thursday night, when I robbed Mr. Cook at his store in the heights, I took off after running back north from the store and I pulled it off and I placed it behind a post * * *. * * * I went back to where I had put the coat and I got it and then I went on home.”

Testifying in his own behalf, the appellant denied shooting Cook at the grocery store, or planning any robbery, or stating in any conversation that he needed some money and was going to rob to get it. He testified that he was in the home of Earl Reynolds at the time of the alleged robbery. This testimony was supported by that of Earl Reynolds and his daughter. He further testified that the two written statements he made to Officer Gilley were the result of pressure exerted upon him and promises made to him by the officers.

The appellant contended at the pre-trial hearing that the two written statements were involuntary and not admissible in evidence as a matter of law on a trial on the merits.

Appellant’s written motion requesting a separate hearing on the voluntary nature of the written statements in advance of the date of the trial on the merits was granted.' At the hearing, the state first offered evidence that the statements were made in accordance with the provisions of the statute, and then offered them into evidence. To sustain his contention that the statements were not voluntary, the appellant called as witnesses, two deputy sheriffs, the district attorney, his mother, and then testified himself.

At the conclusion of the hearing, the trial court found the evidence sufficient to show that said written statements were voluntarily made. The evidence sufficiently supports the trial court’s findings.

It is further contended that the trial court erred during the main trial when it admitted the two written statements in evidence.

During the trial on the merits the state offered evidence that the written statements were made in compliance with the requirements of the statute and offered them in evidence.

Without offering any evidence on the voluntary nature of the written statements or offering the evidence adduced at the pre-trial hearing, the appellant objected to their admission in evidence on the ground that they were “taken illegally and without proper warning and in violation of the defendant’s constitutional rights.” At this time the court admitted the statements in evidence and they were read to the jury.

Although the appellant later testified that he did not voluntarily make the written statements, he did not, before the close of the evidence, request the court to strike the statements from the evidence or instruct the jury not to consider them. The above contention presents no error.

The issue of the voluntary nature of the written statements was properly submitted to the jury.

No error is shown in the court’s refusal to require Officer Gilley to divulge the name of the informer who gave him information which caused him to question the appellant about the robbery. There is no showing that the informant was present or was a material witness to the robbery. Therefore, the refusal was not error. Artell v. State, Tex.Cr.App., 372 S.W.2d 944; Lopez v. State, Tex.Cr.App., 397 S.W.2d 76; and Thayer v. State, Tex.Cr.App., 397 S.W.2d 236, dated November 10, 1965.

Error is urged because of the failure of the court to respond to his objection to the charge on the voluntary nature of the written statements.

The record reflects that the appellant did not present his objections to the court’s charge in writing as required by statute. Therefore, this complaint is not before us for review. Art. 658 Vernon’s Ann.C.C.P.; Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110; Reyes v. State, Tex.Cr.App., 388 S.W.2d 433.

The appellant urges error in the admission of the written statements on the ground that he was denied counsel and not taken before a magistrate.

Following the assault to rob on February 25, Officers Gilley and Gillespie went to the high school and talked with the appellant about 9:30 a. m., March 2, in the principal’s office about the shooting of Cook and asked him to come to the sheriff’s office after school, which he agreed to do. At school, Gilley “told him (appellant) the situation that we had and what we were talking then about, I told him he didn’t have to talk to us at all; that if he wanted his parents there, or his attorney or anybody there, he could feel free to call them.” While testifying on direct examination about his conversation with the officers at school, the appellant stated: “Well, at the beginning the_asked me questions about this Cook robbery, and also asked me would I go out to the hospital and I told them yes.” Gilley testified that, “He (appellant) came to our office at around four-twenty p. m., March 2nd and I again told him he was not under arrest; and told him we wanted to talk to him about this particular crime, and told him he didn’t have to talk to us. I asked him earlier that morning to bring his parents with him, and I told him he could leave at any time he wanted to, but that I would like to talk to him, with his parents.” After talking with the appellant in the sheriff’s office they again asked him as they did at school if he would go to the hospital and see if Cook could identify him, and he again agreed to go. From his room, Cook viewed the appellant while he was standing in the hall, and identified him as the man who shot him (Cook) at the store. They returned to the sheriff’s office about 5:45 p. m. and again talked to appellant about the shooting and he signed the statements about 9:50 p. m. in which he admitted shooting Cook at the store. Each statement included the warning that he had been advised of his right to counsel. Gil-ley testified that appellant was first placed under arrest after he signed the statements, and they were unable to locate a magistrate on March 2, and appellant was taken before a magistrate the next morning about 9 a. m., March 3.

The appellant testified on the hearing before the court and on the main trial and at no time did he testify that he had, wanted, or asked for, or was denied counsel.

The evidence shows no denial of due process under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

The other contentions presented. have been considered and they do not reveal error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Adam RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39365.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Wm. H. Hamblen, Edna, for appellant.

      Wiley Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, life imprisonment.

It was undisputed that appellant killed the deceased by shooting him with a pistol, the homicide being committed in a bar in the city of Edna which was referred to in the testimony as the Twist Club and Sanchez’s Place.

Ralph Sanchez, operator of the bar and a witness to the killing, testified that on the évening in question the deceased came into the place around 7 p. m. An hour later, appellant and a companion, Eugene Salinas, entered the place. The deceased was sitting at a table, drinking beer. Appellant and Salinas joined him at the table and began drinking. The witness Sanchez then joined them at the table. Sanchez testified that he went to the restroom and when he returned to the table appellant and the deceased were discussing who was the better man. In the discussion, after each stated that he was a good man, the deceased said, “no, I am a better man,” and appellant replied, “ T am a better man than you are.’ ” Appellant then reached back, pulled out a pistol, and, after saying, “ ‘I’ll show you I am a better man than you are,’ ” fired the gun in rapid succession six or eight times. The witness testified that the deceased made no movement of any kind before the first shot was fired and after the first shot the deceased stood up and fell backwards.

The testimony further shows that when the officers arrived upon the scene the deceased was lying on the floor with six entrance bullet wounds in his body. One was in the forehead, three were in the chest, one in the left side, and one in the left arm. Appellant was also present and when policeman Sample entered the place appellant said to him, “ ‘Sir, this is what I shot him with, sir,’ ” and handed the officer a .25 calibre semi-automatic pistol. At such time appellant appeared to be drunk.

Testifying as a witness in his own behalf, appellant stated, in substance, that he shot the deceased in self-defense. He related that while they were seated at the table, drinking beer, the deceased bragged that he was a better man and said that he was going to hit the appellant; that when the deceased hit him with a beer bottle and advanced upon him he fired the pistol toward the table; that as the deceased continued to advance he fired several more shots until the deceased fell. Appellant stated that he was in fear of the deceased, knew that he was a dangerous man, and had known of the deceased carrying brass knucks and having fights with others. He further stated that the deceased had the reputation of winning the fights.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of self-defense.

Appellant predicates his appeal upon seven bills of exception but, in oral argument before this court, agrees with the state’s contention that no reversible error is presented in his bill of exception #4.

Bill of exception #1 complains of the court’s action in excusing a special venireman on objection of the state.

The bill of exception merely certifies that the venireman was excused, over appellant’s obj ection, but does not' certify that an objectionable juror was forced upon appellant. In the absence of injury being shown in the bill, no error may be predicated thereon. 5 Tex.Jur.2d 419-422, Sec. 248; Luttrell v. State, 116 Tex.Cr.R. 277, 31 S.W.2d 818.

By bill of exception #2 appellant complains that the court erred in admitting in evidence four pictures of the interior of the Twist Club, which was the scene of the killing, over the objection that the photographer who took the pictures was not present and the pictures were posed and taken at a later date.

Deputy sheriff Anderson testified that after the killing he returned to the scene in company with a photographer and they took pictures of the interior of the building. The officer identified the four photographs introduced in evidence as pictures which he, himself, took and which represented the general appearance and condition of the place as he saw it on the night of the killing. The photographs were admitted by the court as showing the general appearance of the interior of the building. The photographs, having been shown to fairly and accurately represent the scene on the night of the killing, were properly admitted in evidence. McFarlane v. State, 159 Tex.Cr.R. 658, 266 S.W.2d 133.

Bill of exception #3 complains of the court’s action in permitting Officer Sample to testify that when he arrived upon the scene after the killing, the appellant stated, “ ‘Sir, that was what I shot him with. I shot him,’” over the objection that appellant was under arrest.

No error is presented by the bill, as the record shows that appellant’s statement was admissible as a part of the res gestae. Further, appellant in his own testimony, stated that he delivered the pistol to either Officer Sample or Buck Long and told them “that was the thing that I had that caused what happened.”

By bill of exception #5 appellant complains that the court erred in not permitting him to show that the state’s witness Ralph Sanchez had a criminal complaint pending against him for the offense of carrying a pistol. Appellant insists that this evidence should have been admitted to show the possibility of an agreement between the state and the witness that if the witness would give testimony in the case he would not be prosecuted on the pistol charge.

The record reflects that no proof was offered by appellant showing any connection between the charge pending against the witness and his testimony but that the state, in the jury’s absence, offered proof by the county attorney that no agreement had been made to not prosecute the witness in exchange for his testimony given in the case. No reversible error is presented by the bill.

Bill #6 complains that the court erred in refusing to permit appellant to show that the deceased had entered a plea of guilty in the County Court of Jackson County, in the year 1943, to a charge of carrying brass knucks.

While proof was offered in the absence of the jury, on the bill of exception, that one Lupe Barrera Espinoza was convicted in the County Court of Jackson County, on July 1, 1943, of unlawfully carrying brass knucks, there was no proof that the defendant convicted was the deceased. Under the record, no reversible error is presented.

Appellant’s remaining bill of exception, #7, complains that the evidence is insufficient to sustain the conviction.

The bill is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Felix Andrew BARANOSKY, Appellant, v. The STATE of Texas, Appellee.
    No. 39399.
    Court of Criminal Appeals of Texas.
    March 9, 1966.

      No Attorney of Record on Appeal, for appellant.
    Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., and Terry E. Stork, Asst. Dist. Attys., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for passing, as true, a forged instrument; the punishment, five years.

The second count of the indictment, which was submitted to the jury, charged that on or about the 2nd day of June, 1965, the appellant did pass as true a certain forged instrument, in writing, to one Bart Tabor. The instrument set out in the indictment was, according to its tenor, a check dated May 31, 1965, at Austin, Texas, drawn on the account of Hinton Motors through The Austin National Bank in the sum of $2,000, payable to D. M. Ginsburg and purportedly signed by S. E. Hinton.

It was shown by the state’s testimony that on May 31, 1965, the appellant and two male companions came to the car lot of Hinton Motors, in the city of Austin, around noon, and asked an employee to help find a rattle in a new car that one of them had purchased. While on the premises the three were in the office where the business checkbook was kept in a desk drawer. Subsequently, a page containing three checks was discovered missing from the checkbook. The same day, around mid-afternoon, appellant and two companions came to the Auto Sales Co. lot in Austin, operated by Herbert Ash. While on the premises, the appellant was, on one occasion, in the company office alone. Two pages from the company checkbook, containing six checks, were later discovered missing.

On June 2, around 12 o’clock, noon, a man, positively identified as the appellant, presented a check (state’s exhibit #1) for $2,000 — of the tenor described in the indictment — to the prosecuting witness, Bart Tabor, who was then on duty at the exchange window of the Austin National Bank. The check bore the endorsement: “For Cashier’s Check Only, D. M. Ginsburg, 1404 Preston, Austin, Texas.” At such time, Tabor accepted the check and issued to appellant, in exchange, a cashier’s check (state’s exhibit #2) for the sum of $2,000, payable to D. M. Ginsburg.

At 12:40 p. m. on June 2, appellant appeared at the Citizens State Bank in Georgetown, where he presented the cashier’s check and received $2,000 in cash therefor. In the transaction, appellant presented certain papers of identification which included a social security card, an Army ID card, and a University of Texas athletic season ticket in the name of David M. Ginsburg.

S. E. Hinton, whose name was purportedly signed to state’s exhibit #1, testified that he did not sign the check or give appellant or any other person permission to sign it.

It was further shown that on June 1, 1965, appellant presented to a teller at the Austin National Bank another Hinton Motors check (state’s exhibit #4), dated May 30, 1965, in the sum of $1,800, payable to D. M. Ginsburg and purportedly signed by S. E. Hinton. For this check appellant received a cashier’s check (state’s exhibit #5) for $1,800, which he cashed the same day. S. E. Hinton, whose name was purportedly signed to state’s exhibit #4, testified that he did not sign the same or give appellant or anyone else permission to sign his name. On June 1, 1965, a check (state’s exhibit #6) in the amount of $1,000, dated May 30, 1965, payable to D. M. Ginsburg, drawn on the account of Auto Sales Company and purportedly signed by Herbert Ash, was presented to and cashed by a teller in the drive-in section of the Austin National Bank. Wilma Jean Joyce, the teller, was unable to identify the person who presented the check, but stated that he furnished a driver’s license and an Army ID card of one D. M. Ginsburg as identification. Herbert Ash, the person whose name was purportedly signed to the check, testified that he did not sign it or authorize anyone to sign his name thereon.

The state’s testimony further shows that on June 17, 1965, the appellant, while under arrest, gave a specimen of his handwriting to Sgt. John Pope, of the Austin police department. Sgt. Pope testified that before the specimen was given he gave appellant the warning printed thereon and informed appellant that he had the right to contact a lawyer. Appellant stated that he did not want one.

The handwriting specimen was admitted in evidence as state’s exhibit #7 after being found by the court to have been voluntarily made, after due warning. Vernon Mealer, a questioned-document examiner of the Department of Public Safety, testifying as a handwriting expert, stated that he had compared the handwriting on the various checks (state’s exhibits 1, 2, 4, 5, and 6) with the specimen of handwriting on state’s exhibit #7 and expressed the opinion that the writing on the face of exhibits #1, 4, and 6 as to the date, payee, and written amount, and the endorsements on all of the checks (state’s exhibits 1, 2, 4, 5, and 6) were made by the person who wrote state’s exhibit #7.

It was further shown by the testimony of deputy sheriff William L. Burch, of Nueces County, that on June 9, 1965, with appellant’s permission he searched an automobile, which appellant had been driving, in the city of Corpus Christi and found the various items of identification (state’s exhibit #3) that appellant used in cashing the various checks in question.

Testifying in his own behalf, appellant denied that he forged or passed state’s exhibit #1 or any of the other checks introduced in evidence by the state. Appellant stated that he was not warned or told that he could contact an attorney before giving the handwriting specimen. He also denied that he gave consent to the search of the automobile in Corpus Christi.

The careful trial judge submitted to the jury in his charge, with appropriate instructions, to which no obj ection was made, the several disputed issues raised by the testimony, including the question of whether appellant freely and voluntarily made the handwriting specimen and the question of whether he consented to the search of the automobile.

By their verdict the jury rejected appellant’s testimony and accepted that of the state’s witnesses.

The evidence is sufficient to sustain the judgment of conviction.

No brief has been filed on behalf of appellant.

The record contains no formal bills of exception.

We have examined the informal bills of exception and find no reversible error.

In permitting the state to show the forgery and passing of the checks other than the one for which appellant was being prosecuted, over his objection that it constituted proof of extraneous offenses, the court did not err. Such proof was offered, and limited in the court’s charge to the purpose of showing “identity, intent, motive, malice or common plan or scheme” in the commission of the offense charged, if it did. The evidence was admissible for this purpose. Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142; Peterson v. State, 157 Tex.Cr.R. 255, 247 S.W.2d 110.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Carnell TANNER, Appellant, v. The STATE of Texas, Appellee.
    No. 39412.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Michael T. Brimble, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

The two prior felony convictions were stipulated in person by the appellant and his counsel in the absence of the jury.

The witness Pina testified that upon awakening at 2:00 a. m. on the morning in question he found that the screen on his kitchen window had been broken off, and that his daughter reported that the money from her purse was missing. He identified a transistor radio, which was exhibited to him by the police a short while thereafter, as one he had given his daughter and on which he had placed her initials.

His daughter, Theresa, testified that she woke up at 2:00 a. m. on the morning in question and saw a colored man wearing a red shirt and dark trousers leaning over the bed where her sister was sleeping, and that instead of screaming, she merely said “hello”, whereupon the man tiptoed out of the kitchen door. She stated that five one dollar bills were missing from her purse and that within a short while the police showed her a transistor radio with her initials thereon and a small snapshot of her girl friend on the back of which was a note written by her girl friend.

Officer Rose testified that while on patrol in the area of the Pina residence, he received a burglary alarm over the police radio and went to the Pina residence, where he ascertained how entry had been effected, and then began patroling the neighborhood. Within a block from the Pina residence Officer Rose saw a colored male wearing a red shirt and dark trousers walking alone. As he approached the appellant, he observed blood coming from a cut near his eye, and upon being apprehended, a transister radio and a billfold containing five one dollar bills were taken from appellant’s pants pocket and a picture of a young Latin American woman from his shirt pocket. Upon return to the Pina residence, the picture and radio were identified, and appellant was placed in jail.

Officer Maddox testified that he was present the same morning between 9:00 and 10:00 a. m. when appellant was interrogated, at which time appellant executed a written confession in which he admitted entering through the window, getting the radio and picture, hearing a noise which caused him to flee and being captured by the officer soon thereafter.

In the absence of the jury the court heard evidence from the State’s witnesses as to the voluntary nature of the confession. Appellant offered none. The court found the confession as a matter of fact to have been voluntarily made after proper warning.

Appellant did not testify or offer any evidence in his own behalf.

Appellant’s primary contention is that he was denied his constitutional rights because he was not informed of his right to counsel or carried before a magistrate before he made his confession. It is undisputed that appellant made no request for counsel and that his confession was freely and voluntarily made following an interrogation of less than an hour on the morning of his arrest.

The writer is not unaware of the present conflict of authority on the question of the necessity of a request for counsel, but it is the holding of this Court, until the Supreme Court of the United States says otherwise, that in absence of a request for ■ counsel, the officers were under no obligation to inform the accused of his right to counsel prior to taking a confession from him under the statutes in force at the time this confession was made. See Johnson v. State, Tex.Cr.App., 396 S.W.2d 404, and the cases there cited. We are not here discussing the question of representation by counsel at trial as we were in Ex parte Bushnell, Tex.Cr.App., 375 S.W.2d 720, and Ex parte Davis, Tex.Cr.App., 379 S.W.2d 922, upon which appellant relies.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


text:
    Jesus Jose Rojas GUZMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 39090.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1966.
    Rehearing Denied March 23, 1966.

      No attorney of record on appeal for appellant.
    W. Barton Boling, Dist. Atty., Mike J. Thompson and Robert D. Earp, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, seven and one-half years.

The state moves to dismiss this appeal on the ground that appellant did not give notice of appeal in open court and no notice of appeal appears in the minutes of the court.

The only notice of appeal appearing in the record is contained in an affidavit of appellant before a notary public in El Paso County which was filed with the clerk of the trial court on July 26, 1965.

This was not a compliance with the requirements of Art. 827, C.C.P., and did not confer jurisdiction upon this court. Anderson v. State, 165 Tex.Cr.R. 525, 309 S.W.2d 239; Reid v. State, Tex.Cr.App., 333 S.W.2d 139; Harper v. State, Tex.Cr.App., 366 S.W.2d 789.

The state’s motion is granted and the appeal is dismissed.

Opinion approved by the Court.


author: CHADICK, Chief Justice.

text:
    CITY OF HOUSTON, Texas, Appellant, v. Lee DYKES et al., Appellees.
    No. 7682.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1965.
    Rehearing Denied Dec. 28, 1965.
    John Wildenthal, Jr., Homer T. Bouldin, Houston, for appellant.
    Ed S. Atkinson, Theo. R. Kirchheimer, Houston, for appellees.
   CHADICK, Chief Justice.

This is an injunction suit. The judgment of the trial court is reversed and rendered.

Bayou Woods, Section 3, a platted residential subdivision, was annexed to the City of Houston, Texas, by Ordinance on December 30, 1949. A platted thoroughfare originally designated as Chatsworth Street in Bayou Woods Subdivision 3 was, after annexation, renamed Buckingham Drive. A segment of Buckingham Drive between Kennilworth Street and Katy Road was not before annexation actually open and used as a street. Nor has it since been developed or opened as a street by the City. The City Council heard, but took no affirmative action on numerous requests to open the area for street purposes. Sewer and water lines have been laid under the segment; and there is evidence in the record that the area could have been negotiated on foot and perhaps by motor vehicles previous to 1948 or 1949. Appellees Lee Dykes and Robinwood Lodge, Inc., own lots abutting on this segment of Buckingham Drive. The segment appears as a matter of law to be a dedicated but unopened street area.

Lee Dykes without the consent of the City of Houston attempted to clear the surface of this area and open it to use as a traffic thoroughfar'e. After considerable public controversy the City erected a metal barricade which effectively obstructs and prevents the use of the street segment by ordinary traffic. The relief appellees Lee Dykes and Robinwood Lodge, Inc., prayed for as plaintiffs was:

“ * * * a mandatory injunction requiring the said City of Houston to remove the barricade erected by the said City on or about August 5, 1962, on Buckingham Drive between Kennil-worth Drive and Katy Road and that said City of Houston be enjoined from further obstructing or interferring with the use of Buckingham Drive unless the said action of the said City be in conformity with the laws and the statutes of the State of Texas * * *

Dykes and Robinwood Lodge, Inc., as abutting lot owners have no jus-ticiable interest warranting injunctive relief in abating an obstruction of the dedicated but unopened street area. Town of Refugio v. Strauch, 29 S.W.2d 1041 (Com.App. 1930). A municipality, as the public’s representative, is empowered to take possession and open for use dedicated street areas whenever the progress and development of the city requires such action. City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924 (1904); Town of Refugio v. Strauch, 29 S.W.2d 1041 (Com.App.1930); see also City of Laredo v. DeMorena (Tex.Civ. App.) 183 S.W. 827. Whether or not progress and development requires that Buckingham Drive be opened is a question that is not reached by this record.

The decree of the trial court is reversed and judgment rendered that appellees Dykes and Robinwood Lodge, Inc., take nothing by their suit.


author: WALTER, Justice.

text:
    Jess R. BARRETT, Appellant, v. Harry K. McCRACKEN, Appellee.
    No. 4037.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 4, 1966.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    James R. Collins, Amarillo, for appellee.
   WALTER, Justice.

This is a temporary injunction case. On April 16, 1964, Jess R. Barrett sold some cesspool drilling equipment to G. E. Brown. Thereafter Brown sold the equipment and business to Harry K. McCracken. The contract for the sale of equipment from Barrett to Brown contained the following provisions:

“Seller agrees to notify purchaser of all cesspools or other drilling which he has orders for in order that purchaser may use said machine and to find work.

Seller agrees that he will not again enter into competition with purchaser or engage in the cesspool drilling business in Deaf Smith County, Texas, for a period of three years from this date and that said period of time and said territory to which seller is hereby limited it is agreed between the parties hereto to be reasonable in each of said respects and shall be subject to enforcement in a court of equity.”

McCracken obtained a temporary injunction enjoining Barrett, his agents, servants and employees from:

“1. Notifying any person, persons or corporation other than Plaintiff of orders for cesspools or other drilling which he has acquired;
2. From assigning cesspool or other drilling contracts or orders obtained to any person, persons, or corporations other than Plaintiff;
3. Competing with Plaintiff by recommending, suggesting or otherwise chan-nelling and directing persons and corporations who have requested Jess R. Barrett, his agents, servants and employees to do cesspool or other drilling work for them, or who have requested Jess R. Barrett, his agents, servants or employees to recommend a person, persons or corporation to do such work to any person, persons or corporations other than Plaintiff.”

Appellant contends that the court erred in construing the terms of the contract between Brown and appellant as requiring appellant to notify Brown of any order for cesspools or other drilling work coming to his attention in the future.

Barrett’s contract with Brown obligated him to notify Brown “of all cesspools or other drilling which he has orders for — ”, It also obligated Barrett not to enter into competition with Brown. The Barrett-Brown contract was a contract to sell some equipment with a noncompetition agreement. The Brown-McCracken contract provided for the sale of trucks and drilling equipment and “the trade name, good will, advertising benefits and all uncompleted drilling contracts now on the books of Brown Drilling Company.”

“In the absence of fraud or mistake, the courts will not make a new contract for the parties or add to, modify, or change in any particular the agreement that they have made.” 13 Tex.Jur.2d, page 308, §§ 130, 131.
“As a general rule, words and phrases used in a contract will be accorded their ordinary, popular, and commonly accepted meaning.” 13 Tex.Jur.2d, page 312, § 135.

“Has” is a present tense word. After making the contract with Brown, Barrett was obligated to notify him “of all cesspools or other drilling which he has orders for” on the date of the contract but not in the future. In McCabe v. New York Central & H.R.R. Co., 139 App.Div. 698, 124 N.Y.S. 652, the court was construing the meaning of the following receipt:

“In full settlement and satisfaction of all claims and demands whatsoever which Felix McCabe has or may have against the West Shore Railroad Company and the New York Central & Hudson River Railroad Company, or either of them, by reason of damages to land of said Felix McCabe, in the town of Haverstraw, Rockland County, N.Y., from the overflow of water and the washing out of sand and other soil and materials adjoining the West Shore Railroad; for all expenses by reason of said overflow and washing out; for conveyance of a parcel of land; and for general release, $500.00.”

and the Court said:

“Before passing to the further reasoning of the court, let us determine, if we may, whether it is true that the receipt given by the plaintiff in the settlement of 1895, covered ‘past, present, and future damages.’ That it covered past and present damages is not, of course, open to dispute; * * *.
The receipt, if it means anything, means that the claims and demands then existing were to be settled and disposed of, * * *.
The receipt here in question is speaking of the present; * * *. It does not mention the future in any manner; it would never occur to any one reading this release that it was intended to give the defendant a permanent license to flood his lands for the sum of $500, and, as the language used is not ambiguous, there is no occasion for introducing words which the parties themselves did not intend to use.”

The appellant also has a point contending that the court erred in granting the temporary injunction because it contains no limitations as to time or geographic area. Ap-pellee agrees that it should be limited to three years from the date of the contract and to Deaf Smith County as provided for in the contract.

The intention of the parties was clearly expressed in unambiguous language. The temporary injunction covers a broader field than the words used in the contract contemplated. If Barrett has any cesspool drilling which he had orders for on April 16, 1964, he is obligated to deliver such orders to McCracken. Barrett is obligated under the contract not to engage in the cesspool drilling business in Deaf Smith County, Texas, for a period of three years from April 16, 1964. The judgment is reversed and remanded with instruction to enter a temporary injunction consistent with this opinion.

The judgment is reversed and remanded.


author: ARCHER, Chief Justice.

text:
    ALBERT GIVEN MANUFACTURING CO., Inc., Appellant, v. J. H. DANIEL dba Daniel's Menswear, Appellee.
    No. 11362.
    Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1966.
    J. W. Thomas, Belton, for appellant.
    Taylor & Taylor, Henry R. Taylor, Jr., Temple, for appellee.
   ARCHER, Chief Justice.

On June 13, 1960 the appellee gave to appellant an order for merchandise in the sum of $861.00, to be closed by two shipments ; one in August and one in the Fall of that year. The first shipment of goods was of the value of $339.00 which was accepted and paid for by appellee. The second shipment, for which there was a charge of $542.00, was refused by appellee.

The trial was had without the aid of a jury and judgment was rendered denying recovery.

The appeal is based on the assigned errors of the trial court in admitting testimony as to an understanding that the order could be canceled and as to custom and usage in the sale and purchase of merchandise in the Temple area.

The plaintiff offered in evidence the deposition of Walter W. Melander, who testified that he was credit manager for plaintiff and was conversant with the order involved herein, which was received on June 16, 1960, and that an initial shipment was made for a part of the order on July 29, 1960 aggregating 50 units and for $339.-50. This shipment invoice was paid on October 26, 1960, and on the same date the second shipment was made but was refused by defendant, and the invoice for $459.50 was not paid.

On August 8, 1960 the defendant wrote the plaintiff that the first shipment came in fine, and that business was very slow and that he would appreciate the holding of the balance of the shipment until further notice.

In reply to defendant’s letter plaintiff stated that shipment would be held up until they had authorization continue, and that the company would continue processing the order because it was not subject to cancellation.

On October 20, 1960 defendant by letter notified plaintiff to cancel the balance of his order.

On October 26, 1960 plaintiff wrote the defendant that the company would be unable to accept cancellation of the order.

The second shipment was made and refused and by letter dated November 4, 1960, the plaintiff wrote defendant they had been advised of the refusal of the shipment.

The order was offered in evidence and shows the style number and price of the several pieces of merchandise. The order has a provision, reading:

“THIS ORDER IS GIVEN AND ACCEPTED UNDER THE FOLLOWING CONDITIONS
1. This order is not subject to cancellation.
2. If the production of our factory shall be curtailed by strikes, lockouts or any unavoidable casualties, deliveries shall only be demanded proportionate to the production.
3. Goods shall not be returned without written permission.”

Such order was not signed by the defendant at the time it was given but subsequent letters recognize such as to be a genuine order.

The defendant J. H. Daniel testified as to the order and that at the time he placed the order he intended to pay for it, and that he instructed shipments to be made a part in July or August and the other part later in the Fall. The witness identified the several letters written by him.

Since Mr. Daniel testified that at the time the order was given it was genuine and he intended at that time to pay for it, evidence as to custom and usage was not admissible.

The testimony as to custom and usage was by Mr. Troy Dean, a representative of the plaintiff in securing the order, who testified on cross-examination:

“Q Mr. Dean, was that specifically discussed there between you and Mr. Daniel that afternoon?
A No, sir.
Q Or were you just going by custom?
A No, sir. It is usually discussed at the beginning when you first start with a line, to selling a store a line, as to what kind of people they are, and as to whether they will cooperate with you and work with you. That is when your customs are discussed and worked out at that time. That is the story on it.
Q There was no specific discussion or understanding when you took that order to that effect, was there ?
A Not on this particular order because it was discussed before.
Q Well, all right, but we were just talking about on this specific occasion now?
A Yes, sir.
Q And there wasn’t any such discussion about it, or any such understanding about it at all at the time that this order came into existence, was there?
A No, sir, there wasn’t.”

There is no question but that the invoice for $459.50 is the price of the goods and that such has not been paid, nor have the transportation costs amounting to $83.28 been paid.

The balance of the shipment is shown to be held in storage for the benefit of the defendant by plaintiff.

The judgment of the trial court is reversed and judgment here rendered for the plaintiff for its debt.

Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    Claude MORTON, Appellant, v. Ernestine HUMBER, Appellee.
    No. 4041.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 21, 1966.
    David D. Foster, Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, for appellant.
    Jerry R. Hollingsworth, Amarillo, for appellee.
   GRISSOM, Chief Justice.

Mrs. Humber bought a house from Mr. Morton. The first time she built a fire in the fireplace the house caught fire because of an unsealed void in the fireplace which caused an up-draft in the attic. The house was damaged but not destroyed. She sued for damages. Mrs. Humber alleged breach of an implied warranty of fitness of the fireplace and that Morton was negligent in allowing an unsealed void to remain in the fireplace, which created an up-draft in the attic and proximately caused the fire. She alleged the difference between the cash market value of her house immediately before and after the fire was $10,000.00 for which she sued. Issue five inquired what amount of money would reasonably compensate Mrs. Humber for damages caused by the fire. The jury answered $14,000.00. Such submission of the damage issue was objected to as improper under plaintiff’s pleading of $10,000.00 difference in market value before and after the fire and, further, because the issue submitted was not pleaded. The damages found in answer to this issue was $14,000.00. The damages alleged was $10,000.00. Judgment was rendered against Mr. Morton for $10,000.00 and he has appealed.

Morton’s objection to the submission of said issue should have been sustained. Contrary to appellee’s contention, submission of issue S cannot be sustained upon the theory that, although not pleaded, it was tried by consent. Appellant properly objected to its submission. Our Supreme Court has held that although an appellant does not object to testimony relative to an issue not pleaded if he objects to its submission on some tenable ground he cannot be held to have impliedly consented to a trial thereof without pleadings. Harkey v. Texas Employers' Insurance Association, 146 Tex. 504, 208 S.W.2d 919, 922.

The court erred in submitting said issue over appellant’s objection. The jury was thus permitted to find appellee’s damages without regard to her pleadings and without instructions from the court and it did find $4,000.00 more damages than ap-pellee even claimed. The error was manifestly harmful to appellant. South Plains Ready Mix, Inc. v. McDermett, Tex.Civ.App., 278 S.W.2d 575, 577; Dallas Railway and Terminal Company v. Strickland Trans portation Company, Tex.Civ.App., 225 S.W.2d 901; Crain v. West Texas Utilities Company, Tex.Civ.App., 218 S.W.2d 512, 514, (Ref. N.R.E.) Tinney v. Williams, Tex.Civ. App., 144 S.W.2d 344, 346; Lone Star Gas Company v. Holifield, Tex.Civ.App., 150 S.W.2d 282, 285; Burns v. Lamb, Tex.Civ. App., 312 S.W.2d 730, 734. All other points are overruled. The judgment is reversed and the cause is remanded.


author: PER CURIAM.

text:
    David W. BYWATERS, Appellant, v. Walter F. JOYCE, Appellee.
    No. 16703.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 11, 1966.
    Rehearing Denied March 4, 1966.
    Rosenfield, Berwald & Mittenthal, Dallas, for appellant.
    Thompson, Knight, Simmons & Bullion, and Sol Goodell, Dallas,'for appellee.
   PER CURIAM.

Appellant appeals from an order denying his application for a temporary injunction. The trial court decided the case on the following stipulated facts:

Ruth E. Joyce died December 19, 1964 leaving a will by which her entire estate was devised to her three minor children (who are also the children of appellee Walter F. Joyce), and appointing her parents, residents of Duluth, Minnesota, as independent executors of her estate. The parents resigned as independent executors on May 24, 1965. On that date David W. Bywaters was appointed Administrator, with Will Annexed, in the Estate of Ruth E. Joyce, Deceased, by the Probate Judge of Dallas County. Appellant Bywaters duly qualified by filing bond and oath. Appellee Walter F. Joyce perfected his appeal from the order of the probate court appointing By waters, such appeal now being pending in the 95th District Court of Dallas County, Texas.

On June 2, 1965 appellee Joyce filed an application in the Probate Court of Dallas County, Texas to set aside and revoke the appointment of appellant Bywaters as Administrator, with the Will Annexed, and to appoint him, Joyce, as Successor Administrator. On July 26, 1965 the probate court entered an order revoking the appointment of David W. Bywaters as Administrator, with the Will Annexed, and appointed Walter F. Joyce as Successor Administrator, from which order Bywaters duly appealed to the District Court of Dallas County, said case now being pending in the 116th District Court. On July 28, 1965 ap-pellee Joyce qualified as Successor Administrator by filing his bond and oath, and has, since such date, been acting as Successor Administrator, with the Will Annexed, of the Estate of Ruth E. Joyce, Deceased.

Appellee Joyce, as Successor Administrator, has demanded of the said David W. Bywaters, appellant herein, possession of all assets belonging to the Estate of Ruth E. Joyce, Deceased, and such has been refused. David W. Bywaters, appellant, has been prevented from carrying out any duties as Administrator, with the Will Annexed, of the Estate of Ruth E. Joyce, Deceased, by the action on the part of appellee Joyce, as aforesaid.

Appellant Bywaters sought the issuance of a temporary injunction from the district court restraining appellee Joyce from performing any duties as Successor Administrator pending the determination of the appeal which has been perfected from the order removing Bywaters as Administrator and to preserve the status quo. The district court denied the temporary injunction and appellant appeals.

OPINION

Although three points are presented by appellant his contention is narrowed to the proposition that his appeal from the order of the probate court removing him as Administrator, supported by a bond, had the legal effect of suspending the order of the probate court pending trial of the issue in the district court, and that the probate court had no right nor authority to appoint appel-lee as Successor Administrator to take over and handle the affairs of the estate.

Vernon’s Annotated Statutes, Probate Code, Section 28, specifically provides that:

“Pending appeals from orders or judgments appointing administrators or guardians or temporary administrators or guardians, the appointees shall continue to act as such and shall continue the prosecution of any suits then pending in favor of the estate.”

Appellant argues that perforce, Section 28 of the Probate Code he, and he alone, has the right and power to perform the duties of administrator of the estate in question pending appeal from the order removing him.

We think that the answer to the question here presented has been definitely decided by our Supreme Court, contrary to the contention of appellant, in Ex parte Lindley, 163 Tex. 301, 354 S.W.2d 364. In that case Lindley was appointed temporary administrator pending a will contest and subsequently the probate court removed him and appointed a successor and directed him to turn the estate over to his successor. Lind-ley duly appealed from this order to the district court and filed an appeal bond. Contending that his appeal suspended the order removing him, he declined to turn over the estate to his successor and the probate court held him in contempt of court. In an original habeas corpus proceeding in the Supreme Court that tribunal affirmed the contempt order and remanded Lindley to the sheriff. In doing so the Supreme Court said:

“The question here is whether Lind-ley’s appeal did supersede or vacate the order removing him. If it did, the probate court was without power to adjudge him in contempt. * * *
“The question is whether he has the right to continue to act pending the appeal * * *.
“There is good reason why this order should not be superseded: if the court has appointed a temporary administrator and exception is taken to the appointment, the court would be left with no temporary administrator if the appointment were appealed and superseded.
“The statute does not purport specifically to deal with the removal of a temporary administrator and the appointment of a successor. Did the Legislature intend that Section 28 have two different applications: (1) that an order originally appointing a temporary administrator may not be superseded, but (2) an order removing him and appointing another may be superseded and held for naught pending appeal? We think not.
“ * * * we have concluded that it was the legislative intent that the order removing Rufus Lindley and appointing a successor was not subject to being' vacated and superseded by appeal. * * *
“As we read the statutes, the policy of giving the probate court power to control estates and the administrator during a temporary administration outweighs the asserted right of a temporary administrator to maintain himself in office during the appeal of an order removing him for cause and appointing his successor. Our conclusion is that ‘the appointee’ who shall continue to act pending appeal is the appointee, whether original or subsequent, who is the current choice of the probate court.” (Emphasis supplied.)

In support of his position appellant relies upon the case of Crouch v. Stanley, Tex. Civ.App. (Fort Worth), 348 S.W.2d 543, no wr. hist, in that case Judge Crouch of the Probate Court of Tarrant County entered an order removing Stanley as permanent administrator and appointed a successor administrator of the Estate of William Roy Greene. Stanley perfected an appeal from this order and the district court enjoined the successor administrator from acting as such and at the same time enjoined Judge Crouch from appointing a successor administrator and taking any further action in the above estate pending appeal of the order removing Stanley. No appeal was taken by the successor administrator from the order of the district court enjoining him from acting as successor administrator, but appeal was taken by the probate judge from the order enjoining him from appointing more successor administrators, or entering any orders relating to the estate. The Court of Civil Appeals of Fort Worth held that the injunction was improperly entered against the probate judge in that it would prevent him from taking any action deemed necessary to preserve the estate and thereby render the probate court impotent and helpless to protect the interest of the estate which said court is charged by law with administering. However, by way of dictum, the court stated that the appeal by Stanley from the order of the court removing him as administrator suspended such order and preserved his status as administrator pending the determination of the appeal.

As for such dictum the Supreme Court said, in Ex parte Lindley, supra:

“There is language in Crouch v. Stanley, 348 S.W.2d 543 (Tex.Civ.App. 1961) which would indicate a contrary conclusion. That case did not reach this court, and we are not persuaded by that opinion. Any language- in the Crouch opinion contrary to this opinion is disapproved.”

Appellant vigorously contends that the decision of the Supreme Court in Ex parte Lindley was limited only to temporary administrators and had no application to other types of legal representatives.

We find ourselves unable to agree with appellant’s contention. In the first place, Section 28 of the Probate Code deals with administrators, guardians, temporary administrators, etc., without discrimination. The reasoning employed by the Supreme Court in deciding .the status of the temporary administrator applies with equal force to a case involving an administrator. In the course of its decision in Ex Parte Lindley, supra, the Supreme Court, had it elected to do so, could have easily distinguished between administrators and temporary administrators, but did not do so. Instead of making a distinction between administrators and temporary administrators, the Supreme Court held that “the appointee” referred to in Section 28 of the Probate Code is “the current choice of the probate court.” It would seem to be unsound reasoning to construe Section 28 of the Probate Code as permitting an appeal to suspend the appointment of a successor administrator but not the appointment of the original administrator. Such construction would place a prize upon the first applicant, even an unauthorized or incompetent person, who would thus be enabled to prevent orderly administration of an estate for a long time, pending the appeal or a series of appeals.

We are of the opinion that the decision of the Supreme Court of Texas in Ex parte Lindley, supra, supports the conclusion that the orderly administration of estates of decedents dictates that the “current choice of the probate court” for administrator, whether he be temporary, regular or with the will annexed, continue to act in such capacity, as directed by Section 28 of the Probate Code, pending an appeal, rather than the prior appointee whom the court for some cause has removed.

The decision of the Eastland Court of Civil Appeals in Crouch v. Stanley, 390 S.W.2d 795, wr. ref. n. r. e., does not in any way cast doubt on the decision of the Supreme Court in Ex parte Lindley, supra. In the second appeal of the Crouch case the probate judge refused to cause notices to be issued and to hold a hearing on Stanley’s final account as required by the provisions of the Probate Code. The district court issued a mandamus directing Judge Crouch to cause these notices to be issued and hold a hearing on the final accounting. In affirming the judgment of the district court the Eastland Court of Civil Appeals held that the only question on the appeal was whether the issuance of the mandamus by the district court was proper, and in the court’s opinion it was. The appeal did not involve the substitute administrator but was solely a dispute between the probate judge and Stanley. Again, there is dictum in this case relating to Stanley’s status as administrator pending appeal.

We hold that the case is governed by the opinion of the Supreme Court in Ex parte Lindley, supra, and that appellee, being the “current choice of the probate court” is the one authorized to act for and on behalf of the estate pending appeal.

The facts are undisputed and the trial court correctly applied the law thereto in denying the issuance of a temporary injunction. We find no basis for appellant’s contention that the trial court abused his discretionary power in refusing to grant the temporary writ of injunction.

The judgment of the trial court is

Affirmed.


author: HUGHES, Justice.

text:
    Lee Ed ALTUM et ux., et al., Appellants, v. James R. BOOTH et ux., Appellees.
    No. 11361.
    Court of Civil Appeals of Texas. Austin.
    Feb. 16, 1966.
    Cox & Dulany, George B. Dulany, Bel-ton, for appellants.
    Brown, Daniel & Brown, John B. Daniel, Jr., Temple, for appellees.
   HUGHES, Justice.

This suit is by Lee Ed Altum and wife Darlene Altum and H. E. Altum as next friend of the minors, Tanya and Shelia Altum, appellants, against James R. Booth and wife, Linda Kay Booth, appellees, to recover property damage and damages for personal injuries alleged to have resulted from a collision between a 1959 four-door Buick automobile driven by appellant Darlene Altum and a 1964 yellow convertible Chevrolet being driven by appellee, Linda Kay Booth, such collision occurring at the intersection of West 10th Street and North Main Street (Highway 317) in the City of Belton, Bell County, Texas, about 11:40 a. m. January 7,1964.

Appellees filed a cross action for damages to their automobile.

Trial was to a jury, but when all parties had rested the court instructed a verdict against appellants, whereupon, appellees dismissed their cross action. Judgment was entered accordingly.

Appellants have seven points, the first four of which, jointly briefed, complain of the court’s action in directing a verdict. The basis of these points is that there was evidence of Mrs. Booth’s negligence sufficient to submit to the jury. We are of the opinion that there is no evidence of negligence on the part of Mrs. Booth and that the instructed verdict was proper.

The collision occurred at an uncontrolled intersection. The day was bright and clear. The view of each driver was unobstructed for reasonable distances. No unusual conditions of traffic or roads were present, and no evidence that either automobile was not in good running order.

Mrs. Booth was driving east on 10th Street. Mrs. Altum was driving north on Main Street. The point of impact was in southeast corner of the intersection. The right front of the Altum car sustained most of the damage done to it. The Booth car was damaged only on the right rear quarter panel and the trunk lid.

There is no evidence that either car was driving at an excessive rate of speed, thirty miles being the highest estimate given. Mrs. Altum testified that the Booth car when she first saw it was going twenty-five or thirty miles an hour, “but slowing.”

There is no evidence that either driver gave any signal or applied the brakes prior to the collision.

The evidence is undisputed that the Booth car entered the intersection first.

Appellants alleged that Mrs. Booth was negligent in (1) failing to maintain a proper lookout (2) failing to timely apply her brakes (3) failing to keep her car under proper control (4) failing to yield the right of way to Mrs. Altum (5) operating her car at an excessive or imprudent speed, and (6) in another manner which will be discussed later.

With respect to the failure of Mrs. Booth to keep a proper lookout we will quote from the record the principal relevant evidence. The only two witnesses on this issue were the drivers of the cars. Mrs. Altum testified:

“Q Mrs. Altum, can you tell us when you first saw that Chevrolet and where you were when you first saw it?
A I was about SO feet back down east, yeah, back down from 317 and 10th intersection.
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Q Now Mrs. Altum, with reference to the way this accident happened I understood you to say, and please correct me if I am wrong because during that time I couldn’t hear you too well, I understood you to say that it was your car that was about 50 feet back south of the intersection when you first saw the Booth car, is that what you said?
A I said about that or about two and a half car lengths.
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Q Now where was the Booth car at that time, I didn’t understand you to testify where it was.
A She was approaching the intersection.
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Q Where was she, I am not trying to testify for you?
A She was — well, I am not very good at these feet or anything but she looked to be about 25 or 30 feet back, I am not sure.
Q In other words she was about half as far from the intersection as you were?
A It appeared to be yes.
* * ‡ ‡ s{:
Q What did you do, if anything, after seeing that automobile ?
A Well, I saw it. I looked and saw it and I proceeded on and I looked back up the road you know and when I saw it she appeared to be stopping.
* * * * * *
Q Did you continue to watch the yellow convertible?
A Yes, I didn’t keep my eye on it all of the time, I looked back up the road.
Q By back up the road you mean you looked north up 317?
A Yes.
Q Did you again see that yellow convertible prior to the collision?
A Yes.
Q And where was it then ?
A You mean right before the collision happened?
Q Yes..
A Well, it was at the intersection of 317 and 10th and as I saw her and she just zoomed out in front of me.
Q Zoomed out in front of you?
A Yes.”
Mrs. Booth testified:
“Q Now Mrs. Booth as you approached that intersection I want you to describe to me in your own words as best that you can about where you were in your car when you first saw the Buick automobile that we now know to be the Altum car, can you just describe that for me as best you can ?
A I was approximately from 5 to 10 feet from the intersection when I first saw the red Buick. It was on my right.
Q At about what distance from the intersection was the Altum car or the Buick when you first saw it?
A Approximately 8 or 9 car lengths figuring a car at 17 feet would make it right around 150 feet.
* * * * * *
Q All right now as you approached this intersection did you look not only to your right and see the Al-tum car approximately 150 feet south but state whether or not you also looked back to your left or what would be southbound traffic on Highway 317?
A I did look.
Q Can you tell us please whether or not there was any traffic on 317 that made any material difference in this conflict?
A There was no traffic at all.
Q What then did you do, did you slow your car down or did you proceed on into the intersection or what?
A I looked at the red car and estimated its speed, I looked to my left and there was no traffic, I looked to my right again to check on the red car, it was still there, it was still moving. It seemed to slow because the nose of the vehicle dipped slightly.
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Q One time when your car — the first time you saw it your car was 4 or 5 feet back west of the intersection and the Altum Buick was approximately 150 feet south?
A Yes, sir.
Q You then looked to the left and then looked back to the right and saw the Altum car again. Had it closed its range to you or what?
A It had closed its range to approximately 5 or 6 car lengths.
Q To 5 or 6 car lengths. And where was your car at that moment that you say the Altum car the second time?
A Perhaps two feet from the intersection, very close to it.
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Q What did you then do after seeing the Altum car for the second time some S or 6 car lengths back from the intersection with reference to proceeding across the intersection?
A I made the decision that I just discussed and I proceeded across the intersection.
Q When was the next time, if ever, that you saw the Altum car?
A A split second before the impact.”

The decision “just discussed” by Mrs. Booth was with reference to a yellow “ice on bridge sign” which was located, not on the street Mrs. Booth was traveling, but on Main Street on which Mrs. Altum was driving. It was on the right, or east, side of the street and about 25 feet from the intersection where the collision occurred.

Regarding this sign Mrs. Booth testified:

“Q Can you tell us please what observation, if any, you made of that ice on bridge sign as you were approaching this intersection, just tell us in your own words what happened,'what occurred to you?
A At the angle that I was looking at it from — ■
Q A little louder please Mrs. Booth.
A I am sorry. At the angle from which I was looking at it I could tell it was a yellow triangle sign. I could not see whether there was printing on it or if there had been what it said.”

Mrs. Booth after testifying that the Al-tum car appeared to be slowing, testified:

“A And I wondered why and I saw the sign again and it registered and I understood it to be a yield right of way sign and this explained the action to me and I went across.”

Appellants alleged that Mrs. Booth was negligent in failing to recognize that the “ice on bridge” sign was not a “yield right of way” sign.

Mrs. Booth undoubtedly relied on what she believed to be a sign giving her the right of way. This is wholly immaterial, in our opinion, for the reason that Mrs. Booth, under the undisputed evidence and the law, had the right of way regardless of how she may have thought she obtained it. She had the right of way because she entered the intersection first. Art. 6701d, Sec. 71 (a), Vernon’s Ann.Tex.Civ.St. She was about three fourths of the way through the intersection when she was struck. It was Mrs. Altum who failed to yield the right of way, not Mrs. Booth.

There simply is no evidence that Mrs. Booth was negligent in any material respect. She operated her automobile prudently and in accordance with her rights. A motorist may rely, and must rely in order not to create traffic confusion, on the right of way given him by law. This does not mean, of course, that a motorist having the right of way may, recklessly and in disregard of those who have failed to yield the right of way, cause a collision which he by the exercise of ordinary prudence could have prevented. There is no evidence that Mrs. Booth acted in a careless, reckless or imprudent manner in exercising her lawful right of way.

Point five complains of the refusal of the trial court to admit evidence of the “custom and habit” for installing “ice on bridge” signs in the Belton area, the purpose of this proffered evidence being to show that Mrs. Booth as a reasonably prudent person should not have mistaken this sign for a “yield” sign.

We have held that it was immaterial that Mrs. Booth may have thought she had the right of way for the wrong reason. If this is correct, then it is unnecessary for us to determine this point. It would not be reversible error to exclude evidence relating to an immaterial issue.

Appellants’ sixth and seventh points, jointly briefed, are that (1) the testimony of the witness Cox was given in answer to leading questions (2) the witness Cox was not the witness of appellants and appellees should not have been permitted to say before the jury that she was their witness.

The witness Marvin W. Cox testified, in answer to leading questions, that the Booth car was “over halfway through” the intersection when the collision occurred and that the Altum car hit the Booth car in the “right rear corner.”

In the course of the objections made to these questions, attorney for appellees stated in the presence of the jury that the witness was appellants.

The witness Cox testified by deposition and a portion of his deposition had been introduced by appellants before the matters above referred to occurred.

Without the testimony of Mr. Cox, the evidence is uncontradicted from other sources as to each of the matters about which he was interrogated. The error, if any, in the premises was harmless under Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.

Affirmed.


author: DENTON, Chief Justice.

text:
    SUNAC PETROLEUM CORPORATION et al., Appellants, v. Frank PARKES, Appellee.
    No. 7558.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 7, 1966.
    Rehearing Denied March 7, 1966.

      Golden, Croley, Howell, Johnson & Mizell, Dallas, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   DENTON, Chief Justice.

Suit was brought by Frank Parkes, Ap-pellee, against Sunac Petroleum Corporation (formerly Stekoll Petroleum Corporation) and H. Bruce Calder and Curtis E. Calder, Jr., d/b/a Horizon Oil and Gas Company, and Cactus Petroleum, Inc., to determine whether or not Parkes is entitled to a certain overriding royalty interest out of an oil and gas mineral lease covering a 160 acre tract in Ochiltree County, Texas. The trial court, without a jury, entered judgment decreeing plaintiff below was the owner of the overriding royalty interest prayed for. All defendants, with the exception of the Cactus Petroleum, Inc., have perfected this appeal.

The case was submitted to the trial court on an agreed statement of facts. Parkes was the lessee of an oil and gas mineral lease dated April 17, 1948. The lease had a primary term of ten years. On or about May IS, 1957, Parkes assigned said lease to L. H. Puckett and reserved an overriding royalty interest of JÍ6 of y% of the oil, gas and all casing head gas produced, saved and sold under the lease or any extensions or renewals thereof. Thereafter, and prior to the commencement of the drilling operations hereinafter referred to, the appellants succeeded to all the rights of L. H. Puckett. On April 14, 1958, the appellant, Horizon Oil and Gas Company, along with others, executed a unit designation instrument placing the 160 acre tract together with certain other tracts in a consolidated gas unit. This unit designation purported to pool or unitize the tract for gas only. At the expiration of the primary term of the lease there was no well on the leased land capable of producing gas or oil, but drilling operations were being conducted by the lessee in the consolidated gas unit, though not on the land covered by said lease. These drilling operations resulted in the completion of an oil well as distinguished from a gas well on June 11, 1958. This well continued to produce oil in paying quantities from the date of completion until after the commencement of a second well on June 24, 1958 on the land covered by the lease in question. This latter operation resulted in the completion of a well producing oil in paying quantities on or about July 29, 1958. Oil in paying quantities has been continuously produced by the second well up until the time of the trial. Approximately one year after the completion of the second well, the successors in interest to the lessors under the 1948 lease, raised a question as to whether or not the lease had been maintained in force and effect after the expiration of the primary term until the commencement of drilling operations on. the land under lease on June 24, 1958. Thereafter, the appellant secured a new oil and gas lease from the successors in interest to the lessors of the 1948 lease, upon the payment of a cash bonus consideration of $27,-000.00. This lease was dated August 17, 1959, and covered the same land described in the 1948 lease. Oil in paying quantities was being produced on the land at the time the lease of 1959 was executed and as stated this production has continued to the time of the trial. It was further agreed that the parties who were entitled to receive royalties under the 1948 lease were the same parties entitled to receive royalties provided for in the 1959 lease; and that Parkes, his survivors, heirs and assigns, are entitled to receive the overriding royalty interest production under the lease of 1959 unless the lease of 1948 ceased to exist as of the effective date of the 1959 lease. The appellants paid or accounted to Parkes for his portion of the production to and including November 30, 1959, but appellants have failed and refused to pay or to account to Parkes for any production after December I, 1959. Parkes has brought suit against appellants and Cactus Petroleum, Inc., to obtain a judicial determination that his overriding royalty interest under the 1948 lease applied to the lease of August 17,1959. The trial court entered judgment so declaring Parkes’ interest.

The primary question to be decided is whether or not the new lease of August 17, 1959, was an extension or renewal of the original lease of April 17, 1948. Appellants contend the 1948 lease terminated on June II, 1958, when drilling operations on the gas unit resulted in the production of oil rather than gas; that such lease, having terminated by its own terms, the lease of August, 1959 was not an extension and renewal of the original lease. If this be so, appellee’s overriding royalty interest does not apply to the lease of August, 1959. Appellants further urge there was no fiduciary relationship between the parties herein and therefore, the court cannot impose a constructive trust for the benefit of appellee on appellants’ interest in a new lease. The question to be determined depends to some extent on whether or not the 1948 lease had in fact terminated under its own terms. That question turns upon the construction of Section 5 of the 1948 lease, under the facts of this case. That Section reads as follows:

“If, prior to discovery of oil or gas on said land, lessee should drill a dry hole or holes thereon, or if after discovery of oil or gas the production thereof should cease from any cause, this lease shall not terminate if lessee commences additional drilling or reworking operations within sixty days thereafter or (if it be within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of three months from date of completion of dry hole or cessation of production. If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land but lessee is then engaged in drilling or reworking operations thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty consecutive days, and if they result in the production of oil, gas or other minerals; so long thereafter as oil, gas or other mineral is produced from said land.”

The language of the above quoted section is identical to the corresponding provisions in the lease in Stanolind Oil and Gas Company v. Newman Brothers Drilling Company, 157 Tex. 489, 305 S.W.2d 169, and the language is substantially identical with the lease in Skelly Oil Company v. Harris, 163 Tex. 92, 352 S.W.2d 950. We think the reasoning and construction placed on these lease provisions by these cases are controlling here. In both the instant case and the Newman and Harris cases, there was no production before the primary term expired, but before the end of the primary term the lessees began drilling a well on the land leased or on land making up the pooled unit. In the instant case the drilling operations continued beyond the primary term and continued until the oil well was completed on June 11. Under the plain language of the second sentence of Section 5, the lease was kept in force at least until June 11. We think it is equally clear that when drilling operations resulted in the discovery of oil rather than a dry hole, the first sentence of paragraph 5 would not come into play as in the Newman and Harris cases. In order to extend the life of the lease by complying with the first sentence of paragraph 5, a lessee must “drill a dry hole or holes thereon, or if after discovery of oil or gas the production thereof should cease for any cause”. Instead of drilling a dry hole the lessees here completed an oil well on the acreage pooled for gas only. The discovery of oil on land in the gas unit, but not on the land under this lease, did not continue the lease in effect. We are not prepared to hold an oil well completed in a gas unit, as in this case, is the same as a dry hole; however, it could be forcibly argued that the two results have the same legal effect under the facts of this case, in that both a dry hole and an oil well on the gas unit will not serve to extend the lease under Section 2 of the lease. That paragraph is: “subject to the other provisions herein contained, this lease shall be for a term of ten years from this date (‘called primary term’) and as long thereafter as oil, gas and other mineral is produced from said land hereto”.

Appellants take the position that when the first drilling operation resulted in an oil well rather than a gas well, neither the sixty-day clause or the thirty-day clause applies and that the 1948 lease terminated on the date the oil well was completed. They further contend the commencement of the second well on the leased land on June 24 had no effect in extending the 1948 lease. In support of this position, appellants rely primarily on Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311. There are several distinguishing facts between that case and the instant case even though the drilling or reworking clauses are identical. In the first place, the first well in the Rogers case was completed almost two months prior to the expiration of the primary term; gas was discovered in paying quantities during the primary term but there was no production although the well was subject to “periods flowing”. Reworking operations were continued after the primary term but the court held these reworking operations had ceased for more than thirty days, and that the thirty-day clause, could not be satisfied by operations on the second well which were begun forty days after the end of the primary term. In overruling the motion for rehearing in the Rogers case, the writer of the majority opinion said:

“The parties here have not raised the question of whether or not under the reworking clause the lease terminated at the end of a thirty-day period of no activity. This question was neither briefed nor argued and was not under consideration in our original opinion”.

In discussing the effect of the thirty-day reworking clause in the Newman case, the Court said:

“If the lease has been kept in force for the full primary term, and there is no production but the lessee is engaged in drilling or reworking operations at the end of such term, the thirty-day clause applies and will keep the lease alive as long as the particular drilling or reworking operation is prosecuted with no cessation of more than thirty consecutive days. The primary purpose of this provision is to keep the lease in force as long as the drilling or reworking operation is prosecuted with diligence, and a precise yet quite liberal standard of diligence is laid down. There must be no cessation of the drilling or reworking operation for more than thirty days if the lease is to be kept alive until the operation is completed to production or a dry hole. * * *
“The thirty-day clause does not tell what will happen to the lease if the particular operation, diligently pursued in accordance with its terms, results in a dry hole. In the absence of some other provision which keeps the lease in force, it would terminate. It will be noted, however, that the thirty-day clause does not provide either expressly or by implication that a lease which has been maintained beyond the primary term under its provisions can thereafter be kept in force only by the diligent prosecution of the particular operation begun during such term.”

Although the court gave meaning to both the sixty-day clause and the thirty-day clause under the facts of that case, we are concerned here only with the thirty-day clause.

The 1948 lease was maintained beyond its primary term by the drilling of the first well and such operation continued the lease in effect at least until it was completed on June 11. Under the decisions of both Newman and Harris, the thirty-day clause has the effect, where drilling or reworking prolongs the lease after the primary term, of keeping the lease in force so long as such operations are prosecuted with no cessation of more than thirty days. The Newman case specifically held the thirty-day clause does not restrict the drilling operation to the particular operation begun during the primary term. We, therefore, conclude the provisions of the thirty-day clause extended the 1948 lease until July 11, which is thirty days after the completion of the first oil well. The second well was commenced on June 24 on the land covered by this lease, which was within thirty days of the cessation of operations and that operation was prosecuted continuously until production was obtained. We, therefore, hold the requirements of the thirty-day clause were fully met and the drilling operations prosecuted by appellants and the resulting production kept the 1948 lease in force and was in force and effect at the time the 1959 oil and gas lease was executed. It necessarily follows that the latter lease was an extension and renewal of the 1948 lease; and that the leasehold estate created by the lease of 1959 was burdened with Parkes’ overriding royalty interest. In view of this holding, it is not necessary that we discuss or pass on the question of a fiduciary relationship between the parties.

If we be mistaken in the above holding, we are of the firm opinion the conduct of the parties, was such that they considered and treated the 1948 lease as remaining in foree until it was superceded by the 1959 lease. Under this record we conclude appellants are estopped to deny appellee’s claim. This conclusion is inevitable when the stipulated facts are considered. During the period between the time production on the leased premises was obtained until the 1959 lease became effective, the parties entitled to royalties under the original lease were paid or accounted to by the same appellants. In addition, Parkes was paid or accounted to for his overriding royalty from the production from the premises leased under the original lease. This overriding royalty was either paid to or accounted for to Parkes until November 30, 1959, over three months after the 1959 lease became effective and sixteen months after the second well began producing. It is to be further noted there had been no adjudication that the 1948 lease ever terminated and no suit for such adjudication was ever filed. The only evidence in this respect was that approximately one year after completion of the second producing well, the successors in interest to the lessors under the 1948 lease, asserted that a question existed as to whether or not said lease had been maintained in force during the period from the expiration of the primary term until drilling operations were commenced on June 24, 19S8. Thus, only a question was raised and it was raised during the time the lease was in force and effect by virtue of the drilling operations and within the thirty-day cessation period. Appellants and the successors in interest to the lessors received the proceeds of the production under the 1948 lease for the period appellants now say the lease was not in force. If the appellants’ position is correct, the land in question was not subject to any lease whatsoever during the period between the termination of the 1948 lease and the effective date of the 1959 lease. If this be true, appellants were not entitled to any of the proceeds of the leasehold estate during that period, but which they admittedly received. We are of the opinion, and so hold for the reasons stated, the new lease of August 17, 1959, was an extension and renewal of the original lease of April 17, 1948; and that the leasehold estate created by the 1959 lease is burdened with appellee’s overriding royalty interest.

By cross point, appellee seeks to reform the trial court’s judgment so as to decree appellants to be liable jointly and severally to appellee for the proceeds of production represented by his overriding royalty interest since and including December 1, 1959. Although the trial court’s judgment established the validity of appellee’s overriding royalty interest, the judgment did not expressly decree such liability. The agreed statement of facts provided that in the event the royalty interest reserved by appellee had not terminated, the appellants would be liable jointly and severally to appellee. The judgment of the trial court is accordingly so reformed.

The judgment of the trial court is reformed so as to decree the appellants liable jointly and severally to appellee for his proportionate share of production from December 1, 1959 to the date of judgment and as reformed, the judgment of the trial court is affirmed.