author: ALEXANDER, J.

text:
    SLATER et al. v. ELLIS COUNTY LEVEE IMPROVEMENT DIST. NO. 9 et al.
    No. 849.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1931.
    Jno. W. Pope and J. L. Zumwalt, both of Dallas, and Tom Whipple, of Waxahachie, for plaintiffs in error.
    W. P. Dumas and L. S. Stemmons, both of Dallas, for defendants in error.
   ALEXANDER, J.

This suit was instituted by the plaintiff, Ellis County Levee Improvement District No. 9, on the relation of the Brown-Crummer Investment Company, a corporation, under article 8017 of the Revised Statutes, to recover delinquent taxes alleged to be due on certain land embraced within said levee district, for the years 1919 to 1926, inclusive. A trial was had before the court without a jury, and resulted in a judgment in favor of the plaintiff for the taxes for the years 1925 and 1926, amounting to the sum of $4,454.30, and for foreclosure of plaintiff’s lien on the property. The defendants have brought the case to this court on writ of error.

This court heretofore certified to the Supreme Court certain questions involved in this appeal, and same were answered by that court in 36 S.W.(2d) 1014. The report of that ease is here referred to for a more detailed statement of the case.

The plaintiffs in error, by an appropriate proposition but without proper assignment of error in the lower court, now insist that the trial court committed fundamental error in foreclosing the tax lien against two separate tracts of land for the gross amount of taxes due on all of said land. The plaintiff sued to foreclose a lien on 177.3 acres of land out of the Robert Ray and G. B. McKinstry surveys, and described the land by field notes as one tract. However, the plaintiff alleged that the land was assessed as two tracts, one consisting of 110 acres out of the McKinstry survey valued at $2,750, and the other consisting of 55 acres out of the Robert Ray survey, and valued at $440. The trial court found that the total amount of taxes due on all of the land for the years 1925 and 1926 amounted to $4,454.30, and foreclosed a lien in solido against the entire 177.3 acres for the gross amount of taxes found to be due, and ordered the land sold for the purpose of satisfying the judgment.

There seems to be some confusion among the decisions of this state bn the question of whether or not a judgment for taxes with foreclosure of the lien is void, where the taxes are due on two or more separate tracts of land and the court forecloses the lien on all of the land in solido for the gross amount of taxes due on all of such tracts. Davis v. West (Tex. Civ. App.) 5 S.W.(2d) 870 (writ ref.); Seber v. Mills (Tex. Civ. App.) 18 S.W.(2d) 207 (writ ref.); State Mortgage Corporation v. Ludwig (Tex. Civ. App.) 35 S.W.(2d) 267 (writ granted); Allen v. State Mortgage Corp. (Tex. Civ. App.) 19 S.W.(2d) 109; State Mortgage Co. v. Affleck (Tex. Civ. App.) 27 S.W.(2d) 548 (writ granted); Pitts v. Mills (Tex. Civ. App.) 19 S.W.(2d) 99 (writ granted); Broocks v. State (Tex. Civ. App.) 15 S.W.(2d) 665; Stevenson v. Mills (Tex. Civ. App.) 14 S.W.(2d) 94.

We believe that these decisions and the views of the Supreme Court on the question, as reflected by the granting or refusing of writs of error therein, can be harmonized if we keep in mind the distinction that exists, where on the one hand two or more parcels of land are rendered for taxes in bulk with a single valuation, and, on the other, where the various parcels are assessed as separate and distinct tracts. In the case of Richey v. Moor, 112 Tex. 493, 249 S. W. 172, it was held that the lien which inures to the state or other taxing authorities attaches only to each separate tract or parcel of land for the taxes assessed against it, and that one tract of land is not burdened with a lien for the taxes due by the same owner on another tract. In that case, each of the several tracts of - land involved was separately rendered and valued on the assessment roll.

Where the owner has rendered, or the assessor has assessed, the various parcels as separate and distinct tracts, with separate valuations, then the taxes due on each tract, and the liens securing the same, must be kept separate, and a judgment attempting to foreclose a lien in solido against all of such parcels for the gross amount of taxes due thereon would be unauthorized. Such was the holding of the Court of Civil Appeals under such a state of facts in the case of Davis v. West, 5 S.W.(2d) 870, and Seber v. Mills, 18 S.W.(2d) 207, and the Supreme Court in'each case refused a writ of error therein.

In the case of Harrison v. Orr (Tex. Com. App.) 296 S. W. 871, 875, par. 7, the court had under consideration a case in which several lots had been assessed separately, and the Court of Civil Appeals had held (Orr v. Wallace, 285 S. W. 650, par. 17) that a judgment foreclosing a lien in solido against several lots for the total amount of taxes due thereon was not void, and the Commission of Appeals said: “And, too, there is in the judgment language susceptible of an interpretation which would mean that the district judge realized that three separate tracts of land, with separate assessments, were involved and that with that fact in mind liability for all of the taxes, etc., was jointly fixed upon all of the tracts; this imports the question of irregularity, etc., considered in Richey v. Moor, 112 Tex. 493, 249 S. W. 172.”

While it is proper to assess each parcel of land separately for taxing purposes, there is nothing to prevent the landowner from rendering two or more distinct parcels of land as one tract; and where he has elected to do so and had indicated his desire to have the several parcels treated as one tract, there is no reason why the lien should not be foreclosed in solido against all of such parcels for the gross amount of taxes due thereon. State v. Baker, 49 Tex. 763; Dallas Title & Trust Co. v. City of Oak Cliff, 8 Tex. Civ. App. 217, 27 S. W. 1036, at page 1040. In fact it would be difficult, if not impossible, for the taxing authorities, without the consent of the owner, to properly apportion the taxes among the several parcels of land, where the owner has elected to treat the various parcels as one tract, with one valuation, and has so rendered same.

In State Mortgage Corporation v. Ludwig (Tex. Civ. App.) 35 S.W.(2d) 267 (writ granted) the several parcels of land were assessed in bulk with one valuation as a whole. The trial court foreclosed the lien in solido against all of the several parcels for the gross amount of taxes due thereon. The Court of Civil Appeals held that the judgment was void.' The Supreme Court indicated a doubt as to the correctness of this holding by granting a writ of error therein.

In the case at bar, the two parcels of land were contiguous, and were probably used and occupied as one tract. They are described in the petition by field notes as one tract. However, plaintiff’s petition shows that the land was assessed as two parcels, with separate valuations. A part of the land was in the McKinstry survey, and was valued at $25 per acre. The other parcel was in the Ray survey, and was valued at $10 per acre. The owner had not elected to have the parcels treated as one tract and had not rendered them as such, but had rendered them separately. Since the petition shows that the two parcels were assessed and valued as separate tracts, the levee improvement district was not entitled to foreclose its lien in solido against both tracts for the total taxes due thereon. Such a judgment was without support in the pleadings.

The judgment of the trial court is therefore reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    BROWN v. DALLAS GAS CO.
    No. 1120.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1931.
    Rehearing Denied Nov. 5, 1931.
    Coombes & Coombes, and White & Yar-borough, all of Dallas, for appellant.
    Harry P. Lawther, Wm. M. Cramer, and Shelby S. Cox, all of Dallas, for appellee.
   ALEXANDER, J.

This was an action by Joe Brown against the Dallas Gas Company for damages for injuries sustained to his person and to his automobile in an automobile collision at a street intersection in the city of Dallas. The jury, in answer to special issues, found for the defendant. The plaintiff appealed.

The jury, under appropriate instructions, found that, on the occasion of the collision, the driver of defendant’s car failed to apply his brakes, but that this was not negligence on his part. It also found that the driver of defendant’s car did not fail to sound a warning of tile approach of his car, that said driver had the car under control and did not approach the street intersection at an excessive rate of speed, and that he did not attempt to drive in front of the plaintiff. The jury also found that the plaintiff was not guilty of any act of negligence that contributed to or brought about the injury, and that both of the cars entered the street intersection where the accident occurred at the same time. The jury found that the plaintiff had not received any personal injuries as the result of the collision, but that his automobile had been damaged in the sum of $35.

The appellant complains of various alleged errors in the court’s charge, but all of such errors relate to the issues submitting plaintiff’s contributory ngeligenee and not to the issues submitting the defendant’s negligence. Since the jury acquitted both parties of all acts of negligence approximately causing the injury, the errors, if any, in the manner of submitting plaintiff’s contributory negligence, becomes immaterial. West Texas Coaches, Inc. v. Madi (Tex. Com. App.) 26 S.W.(2d) 199; Bryan v. Sinclair Oil & Gas Co. (Tex. Civ. App.) 1 S.W.(2d) 917; Leal v. Leal (Tex. Com. App.) 14 S.W.(2d) 797; Lumbermen’s Reciprocal Ass’n v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972. There was nothing suggestive or inflammatory in the manner of the submission of the issues with reference to plaintiff’s negligence, and it will not be presumed that the erroneous manner, if any, in which they were submitted, in any wise influenced the jury in its answer to the issues with reference to the defendant’s negligence. Blumrosen v. Burke (Tex. Civ. App.) 37 S.W.(2d) 1070, par. 7.

The only other proposition presented in appellant’s brief, is that the verdict of the jury was insufficient on which to base a judgment, in that the jury failed to answer all of the issues submitted. This proposition is not followed by a proper statement pointing out the particular defects in the verdict, and we are therefore not required to consider same. Revised Statutes, art. 1757, as amended Acts 1931, 42d Leg., c. 45, p. 68, § 1 (Vernon’s Ann. Civ. St. art. 1757); Court of Civil Appeals Rule 31. However, if we should consider the proposition, it is without merit. The only assignment of error pointing out any specific defect in the verdict, is that found in assignment No. 13 wherein the appellant asserts that the verdict is insufficient because the jury did not answer an issue submitted to them as to whether or not plaintiff’s injuries were due to an unavoidable accident. In view of the answers of the jury to the other issues as heretofore set out, this issue became immaterial, and it was not error for the trial court to accept the verdict of the jury without an answer to that issue. Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Silvers v. Payne (Tex. Civ. App.) 282 S. W. 876, par. 3; Guaranty State Bank v. Shirey (Tex. Civ. App.) 258 S. W. 1109, par. 9.

The judgment of the trial court is affirmed.


author: BARCUS, J.

text:
    CLARK et al. v. FRANCIS.
    No. 1113.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1931.
    Dan P. Johnston and W. H. Flippen, both of Dallas, for appellants.
    Walace Hawkins, of Dallas, for appellee.
   BARCUS, J.

Appellee instituted this suit against appellants in the justice court of Dallas county to recover $168.75. Appellee recovered judgment in said court for the $168.75, and, on appeal to the county court where the trial was had to the court, judgment was rendered in favor of appellee for the same amount. Ap-pellee alleged that on July 15, 1929, he purchased from appellants one hundred shares of stock of Standard Oil Company of Indiana, which was owned by appellants, under stock certificate of said corporation No. E-101273; that appellants agreed to deliver him said stock, together with all stock dividends, regular and extra cash dividends, that had been theretofore declared on said stock on February 4, 1929, fcy said oil company. Appellee alleged that the one hundred shares of stock was delivered per contract, and that appellants had collected the dividends that had been declared on February 4, 1929, of $168.-75 on said stock, but that they had failed and refused to deliver said'money to him. Appellant answered by a .general demurrer and general denial.

Appellants present two assignments of error : First, that the verdict is contrary to the evidence; and, second, that the judgment is contrary to the law. The only proposition submitted by appellants is that, since the evidence does not support appellee’s pleadings, judgment should be rendered for appellants.

The trial court filed its findings of fact and conclusions of law, to which no exception was taken by appellants. We have carefully examined the record, and think appellee’s pleading is sufficient to sustain the judgment, and that the evidence abundantly supports the findings of fact and the judgment of the trial court.

Appellants’ assignments of error are overruled, and the judgment of the trial court is affirmed.


text:
    JOHNSON v. FIRST NAT. BANK OF BRENHAM. SAME v. DUBLIN MILL & ELEVATOR CO.
    Nos. 1136, 1137.
    Court of Civil Appeals of Texas. Waco.
    Oct. 15, 1931.

      Clark & Clark, of Dallas, for appellant.
    Crane & Crane and Parker V. Rucas, all of Dallas, and Searcy & Hodde, of Brenham, for appellees.
   ALEXANDER, J.

This .appeal challenges the correctness of the ruling of the trial court on the pleas of privilege filed by the defendants. H. J. Johnson filed suit in the district court of Dallas county against A. F. Manhart and wife, Anna B. Manhart, to recover on two promissory notes alleged to have been executed by said defendants and payable to the plaintiff in Dallas county, and to foreclose a chattel mortgage on certain personal property. The plaintiff joined the First National Bank of Brenham, a corporation, with its domicile in Washington county, and the Dublin Mill & Elevator Company, a corporation, with its domicile in Erath county, as defendants in said suit, alleging that each of them was claiming some interest in the personal property described in the chattel mortgage. The defendants First National Bank of Brenham and the Dublin Mill & Elevator Company each in due time filed a separate plea of privilege to be sued in the county of its domicile. The plaintiff wholly failed to controvert either of the pleas of privilege. Neither the defendant Manhart nor his wife filed a plea of privilege. The trial court, after the expiration of the time allowed by law for filing a controverting affidavit, sustained the plea of privilege of the defendant bank, and transferred the suit as to said defendant to Washington county, and sustained the plea of privilege as to the defendant Mill & Elevator Company, and transferred the suit as to said defendant to the district court of Erath county, and retained jurisdiction over the suit by the plaintiff against Manhart and wife. The plaintiff filed separate appeals as to the defendants Mill & Elevator Company and as to the bank. By agreed motion, the cases were consolidated on appeal.

The plea of privilege as filed by the bank and by the mill were each in the usual statutory form, and contained the statutory allegation “that no exception to exclusive venue in the county of one’s residence provided by law, exists in said cause.” It was appellant’s contention that the above-quoted allegation was a mere conclusion of the pleader, and that by reason thereof the pleas of privilege were insufficient. The above allegation on the part of the defendants was clearly a conclusion of the pleader, and in the ordinary pleading would not be sufficient. However, in regard to the form of the pleas of privilege, the Legislature has provided that such an allegation is not only permissible, but that it is sufficient. Revised Statutes, art. 2007. Since the Legislature has provided that such an allegation is sufficient, the courts have no authority to hold otherwise. Murphy v. Dabney (Tex. Civ. App.) 208 S. W. 981; First National Bank of Rhome v. Cage (Tex. Civ. App.) 82 S.W.(2d) 500, par. 4; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, par. 11.

The appellant complains of the action of the court in splitting up the cause of action by retaining the suit of plaintiff against Manhart and wife, and transferring the suit as to the mill to Erath county and by transferring the suit as to the bank to Washington county. The rule seems to be that, where one of several defendants files a plea of privilege to be sued in the county of his residence, and the plea is sustained, if the cause of action is a j.oint action growing out of joint liability of all. the defendants, the suit must be transferred as an entirety to the county of the residence of the defendant whose plea is sustained. On the other hand, if the cause of action against the several defendants is sev-erable, or. joint and several, the court should retain jurisdiction■ over the action.in so far as it concerns the defendants whose pleas of privilege have not been sustained, and should transfer the suit in so far as it concerns the defendant whose plea is sustained. Standard Acc. Ins. Co. v. Pennsylvania Car Co. (Tex. Civ. App.) 15 S.W.(2d) 1081; McCarroll v. Edwards (Tex. Civ. App.) 22 S.W.(2d) 684; Rutledge v. Evans (Tex. Civ. App.) 219 S. W. 218.

In order for a cause of action to be a joint action, there must be á joint liability on the part of the defendants. In this case the cause of action against Manhart and wife grew out of their having executed the notes and mortgage sued on. The other defendants are not alleged to have executed the notes nor the mortgage. The plaintiff merely alleged that said two defendants (the Mill and the Bank) were claiming some interest in the mortgaged property, and that such interest was inferior to plaintiff’s claim. It was not alleged that they were the owners of the mortgaged property. The mere fact that such defendants were claiming some interest in the mortgaged property is not sufficient to make them necessary parties to the suit brought by the plaintiff against the mortgagors to foreclose the lien. Shipley v. Pershing (Tex. Civ. App.) 5 S.W.(2d) 799, par. 2; Richardson v. Kent (Tex. Civ. App.) 21 S.W.(2d) 72, par. 2; Gamble v. Martin (Tex. Civ. App.) 151 S. W. 327, par. 5.

The cause of action by the plaintiff against Manhart and wife on the notes and to foreclose the lien on the personal property was clearly severable from that against the other two defendants who were merely claiming an interest in the property.

The judgment of the trial court is affirmed.


author: WILLSON, C. J.

text:
    LAMAR-DELTA COUNTY LEVEE IMPROVEMENT DIST. NO. 2 v. DUNN et al.
    No. 4067.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 20, 1931.
    Rehearing Denied Oct. 22, 1931.
    Beauchamp & Lawrence, of Paris, for appellant.
    A. P. Dohoney, of Paris, for appellees.
   WILLSON, C. J.

The appeal was perfected April 10,1931, which was after the Act of April 9,1931, General Laws 42d Legislature, p. 68, c. 45, § 1, amending article 1757, R. S. 1925 (Vernon’s Ann. Civ. St. art. 1757), with reference to briefs on appeal, took effect. Said Act of April 9, 1931, as did rule 32 for the government of Courts of Civil Appeals before the act became effective, required such briefs to contain “the alleged error or errors upon which the appeal is predicated.” The brief of appellant (filed August 29, 1931) does not contain an assignment of errors. For that reason, in disposing of the appeal, this court is restricted to a consideration of only errors “apparent upon the face of the record.” Article 1837, R. S. 1925. We have found no such errors, and therefore cannot do otherwise than affirm the judgment. Supreme Assembly of Modern Americans v. Mitchell (Tex. Civ. App.) 275 S. W. 224; Lebowitz v. Sueravitz (Tex. Civ. App.) 33 S.W.(2d) 476.

We do not think the use of the word “may” in the provision in the Act of April 25, 1931, General Laws 42d Legislature, p. 117, c. 75, § 1, amending article 1844, R. S. 1925 (Vernon’s Ann. Civ. St. art. 1844), that an appellant or plaintiff in error “may” embody assignments of error in his brief, requires the provision to be construed as making it optional with an appellant or plaintiff in error to include or to not include such assignments in his brief. It is clear enough, we think, when said provision is considered in connection with said Act of April 9,1931, said article 1837, and other provisions of the statutes, and rules promulgated by the Supreme Court, that the word “may” was used in a mandatory sense in said provision. Smalley v. Paine, 102 Tex. 304, 116 S. W. 38.

The judgment is affirmed.


author: LEDDY, J. CURETON, C. J.

text:
    In re RAMON’S ESTATE. RAMON et al. v. WORSHAM et al.
    Motion No. 9517; No. 1227-5596.
    Commission of Appeals of Texas, Section B.
    Nov. 12, 1931.
    For former opinion, see 35 S.W.(2d) 699.
    See, also (Tex. Civ. App.) 20 S.W.(2d) 351.
    Hicks, Hicks, Dickson & Bobbitt, Schlesinger & Schlesinger, and Harry L. Howard, all of San Antonio, and Pope, Pope & Pope, of Laredo, for plaintiffs in error.
    Mann, Neel & Mann, of Laredo, for defendants in error.
   LEDDY, J.

Upon the original hearing we reversed the judgment of the Court of Civil Appeals and the district court, dismissed the cause as to plaintiff in error Angelita Sobrevine, and remanded the same for another trial between the remaining parties. We should have reversed the cause for another trial as to all the parties, as we are convinced that that portion of the opinion holding plaintiff in error Angelita Sobreville, not having been a party to the trial in the county court,, could not be made a party to the proceeding in the district court on appeal, is erroneous.

The jurisdiction of the district court upon a trial de novo was as comprehensive as that possessed by the county court; hence any person interested in the proceeding :.had the same right to intervene or be made a party in the cause upon appeal in the district court as when the cause was pending in the county court. Phelps v. Ashton, 30 Tex. 344; Vance v. Upson, 64 Tex. 268; Pipkin v. Turner (Tex. Civ. App.) 277 S. W. 221.

It is strenuously insisted by defendants in error in their motion for rehearing that proof offered by plaintiffs in error, to the effect that a brother of testator was three times adjudged insane and died while an inmate of an asylum, was properly rejected by the trial court because no proper predicate had been laid for the admission of such evidence.

Defendants in error concede the rule is well established that where the sanity of' a person is in dispute the insanity of his blood relatives in the ancestral line may be shown .as tending to establish the fact of insanity. Lovegrove v. State, 31 Tex. Cr. R. 491, 21 S. W. 191; People v. Smith, 31 Cal. 467; Snow v. Benton, 28 Ill. 306; State v. Van Tassel, 103 Iowa, 11, 72 N. W. 497. But in this connection they assert that such proof was not admissible as a circumstance to corroborate evidence showing want of mental capacity, on the part of the testator, in the absence of proof showing that such ■insanity was hereditary or of a transmissible •type.

It is stated in the argument supporting defendants in error’s motion for rehearing that, while the courts of this state have never had occasion to pass directly upon this question, the holding of the courts of other states and text-boon writers upon the subject are unanimously against permitting such evidence to be introduced without proof of the hereditary nature of the insanity with which the relatives are claimed to have been afflicted. If this statement be correct, and our holding is in opposition to the unanimous pronouncement of all the courts of the country as well as text-book writers upon the subject, then defendant in error’s motion ought to be granted. A careful examination of the authorities upon this question, however, does not sustain the broad assertion thus made by counsel. It is true a number of the earlier decisions hold proof that insanity is hereditary must be made before evidence should be admitted showing insanity in relatives of the defendant. But the weight of the modern decisions is clearly to the contrary. Prewitt v. State, 106 Miss. 82, 63 So. 330, 6 A. L. R. 1476; James v. State, 193 Ala. 55, 69 So. 569, Ann. Cas. 1918B, 119; Dillman v. McDanel, 222 Ill. 276, 78 N. E. 591, 594, 113 Am. St. Rep. 400; Martin v. Beatty, 254 Ill. 615, 98 N. E. 996; Baxter v. Abbott, 7 Gray (Mass.) 71; Green v. State, 64 Ark. 523, 43 S. W. 973; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Hagan v. State, 5 Baxt. (Tenn.) 615; State v. Penna, 35 Mont. 535, 90 P. 787; People v. Pine, 2 Barb. (N. Y.) 566; State v. Simms, 68 Mo. 305; 1 Wigmore on Ev. § 232; 1 Wharton & Stiles Med. Jur., § 576; Com. v. Dale, 264 Pa. 362, 107 A. 743, 6 A. L. R. 1482; State v. Hoyt, 47 Conn. 618, 36 Am. Rep. 89.

In the note to the case of Commonwealth of Pennsylvania v. Dale, above cited, the cases on both sides of this question are exhaustively reviewed. The conclusion of the author as to the state of the authorities on the subject is thus stated: “It cannot be said, however, that the weight of authority requires proof that insanity is hereditary or of a transmissible type, since the majority of eases seem to regard such proof as unnecessary.”

In Prewitt v. State, 106 Miss. 82, 63 So. 330, 331, 6 A. L. R. 1476, it was held that testimony that defendant’s father, uncle, and other blood relatives had been insane was admissible without proof that such insanity was of an hereditary nature. The court, in discussing this question, said: “To exclude facts from evidence which depend for their value upon the law of heredity, for the reason that such law has not been proven is, or should be, as shocking to the judicial mind as the exclusion of facts from evidence depending upon the law of gravity for the reason that such law has not been proven. Heredity, ‘is a universal law of organic life,’ and is defined as ‘that biological law by which all beings endowed with life tend to repeat themselves in their descendants.’ ”

In Baxter v. Abbott, 7 Gray, 71, the Supreme Court of Massachusetts, in discussing the hereditary nature of insanity, said: “The transmission of this predisposition to: .insanity is matter of general observation, and is recognized by the best medical authorities. Es-quirol says this hereditary taint is the most common of all the causes to which insanity can be preferred. Esquirol on Mental Maladies, translated by Hunt, 49.”

The Supreme Court of Tennessee, in Hagan v. State, 5 Baxt. 615, in holding evidence of this nature admissible Without the necessity of laying a predicate that the insanity sought to be proven is of a transmissible type, said: “If medical science has determined any one question more clearly than another, it is that insanity is hereditary. * * If medical men, in determining the sanity or insanity of a party, enquire minutely into the mental condition of his immediate family, why is it that a court, seeking after truth of the sanity or insanity of a party, refuses to enquire after the mental condition of his ancestry or immediate family?”

The Supreme Court of Illinois, in Dillman v. McDanel, supra, in discussing the conflict of the authorities upon this question, observes: “The precedents are not a unit oh this question, but we think the greater weight of authority is that, where the sanity or insanity of an individual is the subject of judicial investigation, and there is other evidence tending to show mental unsoundness, it is competent to show the insanity of his collateral blood relations, not further removed than uncles and aunts, without making proof that the insanity from which they suffered was hereditary in character.”

In the late case of Woodruff’s Ex’r v. Woodruff, decided by the Court of Appeals of Kentucky, 233 Ky. 744, 26 S.W.(2d) 751, 753, in passing on the admissibility of this character of evidence, declared: “The court did not err in admitting the evidence as to insanity in his mother’s family; for insanity is peculiarly hereditary, and in cases of this sort the evidence necessarily is allowed to take a wide range.”

We conclude that the weight of authority Is against the proposition that proof of insanity of relatives in the direct ancestral line cannot be admitted without a predicate being first laid by showing that the insanity of such relatives is of an hereditary nature. But, be this as it may, we are firmly of the opinion that the later decisions we have quoted from are supported by the better and sounder reasoning. The recognition of the contrary rule would render it extremely difficult to obtain proof of the particular nature of insanity in relatives in years past and would, in many instances, effectually close the door to the admission of this character of evidence. We would hesitate long before adopting a rule of evidence which would operate in many cases to deny-those seeking to establish the truth, as to a party’s mental condition the benefit of evidence, which, by the unanimous pronouncement of the medical world, is entitled to very great weight in determining the question of sanity.

We are in agreement with the Court of Civil Appeals on its decision of the questions raised by plaintiff in error Angelita Sobreville. We therefore deem it unnecessary to discuss such questions here. It is sufficient to announce that in our opinion the same were properly determined by that court. :

We recommend that the motion of Angelita Sobreville be granted, the motion of the other defendants in error be overriile.d,' and- our former, judgment modified so as to remand the cause for another trial between all the parties.

On Rehearing.

CURETON, C. J.

• Previous judgment set aside, and judgment entered reversing the judgments of the district court and Court of Civil Appeals, and cause remanded as to all parties, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: HAWKINS, J.

text:
    MIKKEL v. STATE.
    No. 14737.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Clegg & Clegg, of Trinity, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

The record contains neither statement of facts nor bills of exception. In this condition, nothing is presented for review.

The judgment is affirmed.


author: MORROW, P. J.

text:
    ANDERSON v. STATE.
    No. 14340.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    T. G. Binkley, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

Upon a plea of guilty, the appellant was convicted of the possession of intoxicating liquor for the purpose of sale. Upon a search of his dwelling, a large quantity of intoxicating liquor was found. At the time ol the search, the appellant was not at home. On a previous occasion a bottle full of alcohol was found on his premises. He testified disclaiming any knowledge of the presence of the liquor in his dwelling at the time of the search, and claimed that the alcohol which had previously been discovered was for legitimate use. He admitted, however, that he and one Satterfield were partners in the sale of intoxicating liquor at a filling station, Under the statute (articles 501, 502, C. C. P.) governing the entry of a plea of guilty, the entry of the plea, after due admonition, is conclusive of guilt, unless the evidence introduced upon the trial makes manifest the innocence of the accused. Harris v. State, 76 Tex. Cr. R. 126, 172 S. W. 975. Upon a plea of guilty, the hearing is, not to determine the guilt of the accused, but to enable the jury to assess the punishment. Garcia v. State, 91 Tex. Cr. R. 9, 237 S. W. 279; Bennett v. State, 98 Tex. Cr. R. 661, 267 S. W. 987.

The judgment is affirmed.


author: CHRISTIAN, J. LATTIMOEE, J.

text:
    DAY v. STATE.
    No. 14202.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied Nov. 13, 1931.
    Prank Judkins, of Eastland, for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possessing intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for 2 years.

A witness for the state testified, in substance, as follows: He saw appellant drive a Buick sedan to the back door of W. M. Armstrong’s house and stop. Accompanying appellant was a woman, Madalyn Day. Appellant was sitting under the steering wheel driving the car. Appellant and Madalyn Day got out of the car and went into the house. The witness was in view of the car until the officers searched it. No one approached the car after appellant and Madalyn Day left it, until the officers instituted a search.

Upon searching the car, officers found 42 gallons of whisky and 2 half-pint bottles of whisky. There were 4 half-gallon jars of whisky in plain view; no effort having been made, apparently, to cover them up. The balance of the whisky was covered with a lap robe. A bank book belonging to appellant was found in the car, as was also appellant’s hat. Just as the officers began to make the' search one of them saw appellant going out of the back door of the house. The officer ran around the house and placed appellant under arrest. It appears from the state’s testimony that the automobile was registered in the name of Madalyn Day. When the officers arrested Madalyn Day, she told them her name was Margarette Bryant.

Appellant offered no testimony.

Before announcing ready for trial, appellant filed his motion to quash the jury panel. It appears that the jury had been drawn from the “wheel” as provided in article 2094 of the Revised Statutes of 1925, as amended by the Acts of the Forty-First Legislature, 1929, c. 43 (Vernon’s Ann. Oiv. St. art. 2094), which provides for “the jury wheel system” in counties having a population of at least 58,000, or having therein a city of at least 20,000 population, as shown by the preceding federal census. Eastland county had been under the jury wheel system, but in 1930, according to the federal census, showed a population of only 33,981, and had no city containing a population of 20,000. , The court sustained the motion to quash, and directed the sheriff to summon the jury for the week. The sheriff took the list of the panel that had been quashed, and summoned its members as jurors for the week. The court did not direct the sheriff to take this action; it being done on his own initiative. Appellant-' then made a motion to quash the panel summoned by the sheriff on the ground that they had not been selected by a jury commission. The bill of exception fails'to show the date when the census for Eastland county was announced. Whether it was announced prior to or after the jury had been drawn from the wheel is not disclosed. The trial took place on the 15th day of October, 1930, the same year the census was taken. There is nothing in the bill of exception to show, that the failure to appoint a jury commission was due to any arbitrary action on the part of .the trial court. The right to set aside the panel because its mepibers have been summoned by the sheriff instead of being selected by a jury commission does not accrue where the failure to select a jury commission is due to a good cause, but accrues only where the failure reflects an arbitrary or willful action on the part of the trial court. Butler v. State, 108 Tex. Cr. R. 177, 299 S. W. 420, and authorities cited. We find nothing in the bill of exception reflecting an arbitrary or willful action on the part of the trial court in failing to appoint a jury commission at the preceding term.

It is recited in bill of exception No. 10 that the court refused to permit appellant to introduce in evidence a certified copy of a mortgage note executed by Madalyn Day to Roy Mumow of date July 15, 1930, showing that Madalyn Day had mortgaged the car in question as its sole owner. State’s witnesses testified that they had made an investigation for the purpose of ascertaining who owned the car, and that they had found that it belonged to Madalyn Day. They said it was registered in her name. If the court was in error in rejecting the mortgage, we are unable-to see how it could have harmed appellant, inasmuch as the undisputed testimony showed that the car belonged to Madalyn Day.

Appellant sought to have the court instruct the jury that, if they believed the automobile belonged to Madalyn Day, they would acquit him, unless they found beyond a reasonable doubt that after the liquor was placed in the automobile appellant exercised some character of care, custody, or control over‘said ear and its contents. We do not believe the evidence called for the charge. It was undisputed that appellant drove the-automobile, and that the whisky was in the car in a position where he could not keep from seeing it during the time he was driving. The state’s testimony that appellant was exercising actual care, custody, and control of. the ■ automobile and the whisky was undisputed.

The court defined principals as those who are guilty of acting together in the commission of .an offense, but made no attempt to apply the law of principals to the facts. Ap-pellant excepted to the charge on the ground that it, in effect, told the jury he had acted as a principal with another, and was an intimation and insinuation that he’ aided some other person in the commission of the offense ; and, further, he excepted on the ground that the court failed to apply the law of principals to the facts in evidence. The state did not rely upon the law of principals for a conviction. It relied upon appellant’s act in driving the car containing a large amount of whisky, some of which was uncovered and within his view. The evidence being uncontroverted that appellant and Mada-lyn Day were joint possessors of the whisky, it seems oljvious that there was no necessity for a charge on the law of principals. If the. charge was erroneous, to order a reversal under the facts reflected by the record would, in our opinion, do violence to the statute inhibiting a reversal of a conviction on a charge not calculated to injure the rights of the accused. Durham v. State, 112 Tex. Cr. E. 395, 16 S.W.(2d) 1092.

The judgment is affirmed.

PEE CUEIAM.

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

On Motion for Eehearing.

LATTIMOEE, J.

The jury panel drawn from the jury wheel was quashed upon appellant’s motion, on the ground that there was no city in East-land county, as shown by the census of 1930, which contained a population of 20,000 people. The sheriff, upon order of the court, summoned a jury. Appellant moved to quash this second panel, for the reason that the sheriff summoned the same men who were on the original panel; they having been ashed by the court to remain after the first panel had been quashed. This does not appear to us tantamount to an order from the court to the sheriff to summon these jurors. Nor do we think the action of the court in having the jury drawn from the wheel originally an arbitrary or willful disregard of the law authorizing the appointment of jury commissioners in counties having no city with a population of 20,000. In Butler v. State, 108 Tex. Cr. R. 177, 299 S. W. 420, 422, referred to in our original opinion, we said: “To entitle the appellant to quash the panel, it was necessary that he introduce testimony to show not only that the court in the present instance had failed to select jury commissioners, but that in doing só his action was willful or arbitrary.”

There is nothing in this record suggesting that at the July term of the trial court at which, if at all, jury commissioners should have been appointed to draw juries for the succeeding September term thereof (at which term appellant was tried) the trial court knew personally that a final report of the federal census director had been filed at Washington, D. C., in which it appeared that East-land county, Tex., had no city therein of 20,000 population. It was not shown that the court below had actual knowledge of the filing of the census report, or the result of such census. We do not think the failure of a court to follow and be governed by the official report of some officer of some department of the federal government, filed at the seat of our national government a few days at most before the action of the court complained of, of which he had no actual norice, could be deemed arbitrary or willful.

A thing is willful, as defined by our courts, when it is “With evil intent, or legal malice.” Thomas v. State, 14 Tex. App. 204; Henderson v. State, 53 Tex. Cr. R. 533, 111 S. W. 736. Arbitrary according to Webster’s International Dictionary, is “Despotic; bound by no law; harsh and unforbearing; tyrannical.” As said in Central Georgia Ry. Co. v. Mote, 131 Ga. 166, 62 S. E. 164, 170: “ ‘Arbitrary,’ means ‘fixed or done capriciously or at pleasure; without adequate determining principle; * * * nonrational; not done or acting according to reason or judgment.’ ” The failure of the trial court to appoint jury commissioners not having been willful or arbitrary, there was no wrong in his order directing the sheriff to summon jurors to fill the panel from which jurors were obtained that tried appellant.

The evidence in this case showing without dispute that the car driven by appellant was also occupied by a woman bearing his name, and shown by evidence to have the same residence address as appellant, in which car was the whisky charged as being illegally possessed by appellant, we perceive no possible injury to appellant from the fact that in his charge the court told the jury that all persons who acted together in the commission of a crime were principals. He had just before in the charge .told the jury that if they believed beyond a reasonable doubt that appellant, either alone or acting with another, had the actual care, control, and management of the whisky in question, etc.

Whether the title to the car here involved was in appellant D. C. Day, or in the woman mentioned, Madalyn Day, would seem under the facts in this case one of immateriality. Without dispute appellant sat in the driver’s seat and -drove the car on the occasion in question. Proof that the car had been theretofore sold to Madalyn Day, and the mortgage and notes given by her, would appear to shed no light on the question of who possessed the whisky in the car.

We think the special charges set out in bills of exception 5 and 6 were unnecessary in view of what the court told the jury in the main charge, and that there was no testimony calling for the charge set out in bill of exception No. 7.

In the original opinion herein, possibly by stenographic error, or at most by inadvertence, there was a misstatement as to the quantity of whisky in the ear. We said it had forty-two gallons when we should' have said it had forty-two half gallons. The amount of liquor illegally possessed does not affect the penalty. The facts were for the jury.

The motion for rehearing will be overruled.


author: CALHOUN, J. LATTIMORE, J.

text:
    FRANKS v. STATE.
    No. 14357.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 28, 1931.
    Douglass & McConnell, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, embezzlement of money over the value of $50; punishment, eight years in the penitentiary.

We find no recognizance in the record. There is an appeal bond which is approved by the district judge but not by the sheriff. The law requires the approval of both. See article 818, C. C. P.; Jones v. State, 99 Tex. Cr. R. 50, 267 S. W. 985; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105; Leal v. State, 112 Tex. Cr. R. 479, 17 S.W.(2d) 1064; Shaw v. State, 113 Tex. Cr. R. 646, 21 S.W.(2d) 1049.

In the absence of a recognizance or an appeal bond approved as the law requires, this court is without jurisdiction to pass on the merits of the case.

The appeal is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

LATTIMORE, J.

This case was dismissed at a former term for lack of sufficient appeal bond. We find in the record a duly certified copy of the corrected appeal bond, and the appeal is reinstated and will now be considered upon its merits.

Appellant was charged with embezzlement of some $6,000 from the First State Bank of Stinnett, Tex. He entered his plea of guilty, but requested a suspended sentence. The jury assessed his punishment at eight years in the penitentiary. Under the provisions of article 776, C. C. P., there can be no suspended sentence given when the term allotted as punishment exceeds' five years.

Complaint is made by three bills of exception of argument made by the state’s attorney in closing its case before the jury. It is set up that the prosecuting attorney said: “A. D. t’ayne of Amarillo has committed a dastardly crime by murdering his wife.” This is the argument complained of in bill of exception No. 1. Bill of exception No. 2 sets out that later in his address the state’s attorney said: ‘‘Let men like Payne go.” The court instructed the jury in each instance to disregard the statement made. While it is set up in each bill that it was generally known in the town and community where this trial was being had that a man named Payne had murdered his wife by blowing her up with dynamite in Potter county, Tex., some three weeks prior to this trial, and that he had made a confession of his guilt which had been published in the papers, still we must confess our inability to see why we should hold that the remarks set out, unaccompanied by any other statements, or any connection shown or discussed between this appellant and Payne, or any similarity in the offenses charged against them, or any claim by the prosecuting attorney that appellant was related to, or that he was the same kind or character of man as, Payne, or that because Payne had murdered his wife he should be given some heavy penalty, and that for the same reason appellant should be likewise treated, would be reversible error. The suggestion tó the jury that Payne ought to be let go — whatever this meant — could hardly be construed as an appeal to the jury to give to this appellant a heavy penalty. The fact that Payne had murdered his wife seems in no way to have been' used as a reason for, or made the basis of an appeal for, a heavy sentence. No new relevant fact was put before the jury which in any way injured or could affect the rights of this appellant. It is set up in the bill of exception that the facts pertaining to the Payne case were generally known in the community. We perceive nothing in the remarks which could be construed as vilification or vituperation heaped upon this appellant. Bach bill is qualified by the statement of the trial court showing when the statements were made the court instructed the jury not to consider same, and- that the court •did not consider such mere reference to the Payne case as vituperative, vilifying, or abusive, and, inasmuch as there was no further reference to the Payne ease, the court did not consider the remarks as authorizing the granting of a new trial. It is further stated in the qualification: “The defendant at the time did not make the objection set out in his bill of exception but merely requested the court to give the written instruction, which he gave.” This court so often has occasion to caution district attorneys and to admonish them to stay within the record, inasmuch as complaints such as this put upon the trial court, and, in the last analysis, this court, the burden of determining whether the remarks, aside'from the record, are such as could be of some perceptible injury to the accused, and such task put upon the trial court and this court is needless, and should in every instance be avoided.

The remaining bill of exception sets up that the prosecuting attorney said to the jury, in substance, that this was the last time he was going to show any courtesy to these lawyers, since they are like their client, and have taken advantage of their sheriff and deputy sheriff, and jobbed them and bit the hand that fed them. The objection made was that these remarks were not invited by any argument in the case and were prejudicial and inflammatory, not a reasonable deduction from any evidence, and a direct thrust at the attorneys in the case. A requested instruction to the jury not to consider said remarks was refused by the trial judge, who qualifies the bill by saying that the argument complained of was a proper reply to the argument of defense counsel, and was invited and provoked by the defense, and was a reasonable deduction from the evidence in the case, and a proper comment on such evidence. This qualification is in no way objected to or exception taken thereto, and we are bound by it.

Binding no reversible error in the record, the judgment will be affirmed.


author: CALHOUN, J. CALHOUN, J.

text:
    WILLIAMS v. STATE.
    No. 14354.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Granted as to Cliff Thomas. Oct. 28, 1931.

      Douglass & McConnell, of Pampa, and John B. McNamara, of Waco, for appellant Cliff Thomas.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Under a joint indictment charging appellants with possession of intoxicating liquor for the purpose of sale, possession of a still, possession of mash, and the manufacture of intoxicating liquor, the appellants were jointly tried, convicted, and punishment assessed at five years in the penitentiary against each.

Peace officers apprehended the appellants at a house situated about three and a half miles in the country. When they drove up to the house, one of the officers communicated to the appellant Williams that he was there to look him over, to which Williams replied, “All right,” and said, “It was in the house.” The appellant Thomas was found in the house.

A search of the house revealed about 100 gallons of whisky. A search of the barn revealed a complete still, together with mash, equipment, and material for the manufacture of intoxicating liquor. The appellants did not testify.

Bill of exception No. 1 complains of the receipt of the evidence showing the result of the search of the premises because of certain reasons, among which was that the officers had no search warrant authorizing the search of the premises, Nowhere in the bill do we find such fact evidenced other than by the objections which appellant made thereto. The objection to the admission of the evidence, not being verified by the record, renders the bill insufficient, and the statement of the grounds of objection are not facts. ' The bill of exception must verify the facts on which the objection was made. Ragland v. State (Tex. Cr. App.) 34 S.W.(2d) 274; McKinley v. State (Tex. Cr. App.) 35 S.W.(2d) 148; Manies v. State (Tex. Cr. App.) 32 S.W.(2d) 470; Harlan v. State (Tex. Cr. App.) 32 S.W.(2d) 182.

The bill of exception is qualified by the trial court showing that the testimony was admitted because of the evidence showing consent on the part of Williams to the search. The consent to search waives the necessity of a search warrant. Ferguson v. State (Tex. Cr. App.) 31 S.W.(2d) 646; Williams v. State, 112 Tex. Cr. R. 307, 17 S.W.(2d) 56.

The court submitted to the jury the first three counts of the bill of indictment charging possession for the purpose of sale, possession of a still, and possession of mash. The count charging manufacture of intoxicating liquor was not submitted to the jury. The verdict expressly found appellants guilty on the first count. Appellants complain of the refusal of the trial court to require the state to elect upon which count in the bill of indictment it sought a conviction. The evidence being sufficient to sustain a conviction upon either of the counts submitted to the jury, and there being only one transaction shown, the state was not required to elect between the counts. Branch’s P. C. § 444; Murray v. State (Tex. Cr. App.) 31 S.W.(2d) 1075; Williams v. State, 112 Tex. Cr. R. 307, 17 S.W.(2d) 56. No error appears.

The verdict of the jury assesses the punishment of appellant Cliff Thomas at five years in the penitentiary, while the sentence assessed his punishment at an indeterminate term of not less than two years nor more-than five years. ' The sentence will therefore be reformed to assess his punishment at an indeterminate term of not less than one year nor more than five years, and, as so reformed, the judgment will be affirmed as against both appellants.

PER CURIAM.

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

On Motion for Rehearing.

CALHOUN, J.

In the original opinion, delivered June 17, 1931, the judgment of the trial court was affirmed, both as to the appellants John Williams and Cliff Thomas.

The appellant Cliff Thomas has alone filed a motion for rehearing, and the sole question presented by him in his motion for rehearing is that the evidence is insufficient as a matter of law to support the verdict and judgment rendered against him in the trial court. This contention was not presented in the brief filed herein for both appellants, but the appellant Cliff Thomas insists in his motion for rehearing that, while the evidence is sufficient to sustain the conviction of said John Williams, who was jointly indicted with him, it is not sufficient to support his conviction. Upon a careful consideration of the evidence adduced upon the trial, we think such contention is sound.

The state relied upon circumstantial evidence, and an instruction covering this subject was embodied in the charge. The only witness who testified as to the search and finding of the whisky was A. C. Carrol, one of the arresting officers. The witness Carrol testified that he knew both the defendants when he saw them; that he and Mr. McCormick arrested appellants, John Williams and Cliff Thomas, at a ranch about three miles from Panhandle, Tex.; that when he (Car-rol) drove up to the premises where the arrest was made, he asked the appellant Williams what he was doing there and how long he had been there, and Williams replied that he had been there about a month feeding some cattle. The witness testified that he advised the said Williams of the purpose of •his presence on the premises and told him that they (meaning himself and McCormick) were out there tó look him over; that Williams replied, “All right, it is in the house’’; that he later went into the house, where he found a barrel of whisky, some six or seven kegs of 10-gallon capacity filled with whisky; that Williams went in the house with him.

He testified he did not see the defendant Cliff Thomas there in the house or about the premises when he first walked in the house; that he saw appellant Thomas walk into the house and saw him come out; that McCormick had him under arrest when he came out of the door, and' had him in charge when he first saw him ; that he did not know whether ■or not the appellant Thomas made any remark that day about what he did there, or what they were doing there, because he did not talk to Thomas, and did not hear him say anything. He further testified that, while he was in the house, Williams told him there was something in the barn; that in the barn he found a still and some mash therein. It was a large still. There were also some galvanized tanks in the barn, and these tanks were half full of mash. This was all the evidence that was offered to show appellant Thomas’s connection with the liquor found in the house, but there was evidence offered to show that a bail bond of the defendant had been forfeited July 29, 1929.

The bail bond of the appellant testified to have been forfeited is not identified by number, and there is nothing in the record by which it can be said that the bond forfeiture occurred in, this case. The mere fact of bond forfeiture was but a' circumstance, even if it had been-shown that the forfeiture was had in the instant case.

, No witness testified to seeing the appellant Cliff Thomas in the room of the house where the whisky was found. There was no testimony that he had any interest in the premises or anything found on the premises. It was not shown what Mr. McCormick had appellant Thomas under arrest for, or where he was on the premises when he was arrested by said McCormick. It is not shown by any witness that Thomas knew there was any whisky in the barn or the house or that he had ever been on the premises prior to the date of his arrest.

Mere presence in the absence of proof of having agreed to committing the offense will not constitute one a principal. Branch’s Texas Penal Code,- § 681, p. 347; Jenkins v. State, 69 Tex. Cr. R. 585, 155 S. W. 208; Johnson et al. v. State (Tex. Cr. App.) 70 S. W. 83; Golden v. State, 18 Tex. App. 637.

With the case being tried on the theory that the appellant Thomas was a principal with John Williams' in committing the offense, the state failed to show more than that appellant Thomas was present at the house where the whisky was found therein.

The motion for rehearing as to the appellant Cliff Thomas is granted, and the judgment of affirmance as to Cliff Thomas is set aside, and the judgment of the trial court as to said Thomas is reversed and the cause remanded.

PER CURIAM.

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


author: DATTIMORE, J. MORROW, P. J.

text:
    COLEMAN v. STATE.
    No. 14170.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Rehearing Denied Nov. 13, 1931.

      T. T. Crosson, of Ballinger, and Critz & Woodward, of Coleman, for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The state used only two witnesses, each of whom swore that with appellant’s express consent they searched his truck which he was driving upon a public highway and found therein three and a half gallons of whisky. This seems amply sufficient to make out a case and to justify the jury in their conclusion of guilt.

Appellant used three witnesses who testified to his good character. No other testimony was before the jury. The defense in this case was that appellant was entitled to immunity from prosecution under the terms of article 694, P. C., which reads as follows: “No person shall be excused from testifying against persons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.” To show himself entitled to such immunity, appellant called the county attorney of Runnels county to the witness stand, who testified, out of the presence of the jury, that a day or two after appellant’s arrest on this charge, either in the office of witness, or that of the justice of the peace, appellant made a statement regarding the transaction, which this witness reduced to writing and appellant signed. Witness gave the names of those present at the time. He further testified that after being told by the chief of police what had occurred at the time of appellant’s arrest, witness talked to appellant, who s.aid he did not think there was much for him to do, that he had been caught by the chief of police, and that they had found some whisky in his truck. He further said that he told appellant that he could make a statement -if he wanted to, but that he did not have to do so, and that if he did it could be used against him but not for him. He further testified that he gave to appellant the statutory warning which appeared at head of the written confession signed by appellant, after which appellant went ahead and made the statement to witness as county attorney. He said this was not before any examining trial.

Appellant wished to place this same evidence, that was heard by the court, before the jury, and complains in two bills of exception that he was not allowed to so introduce same. Appellant introduced before the court, out of the hearing of the jury, both the county attorney and Mr. Moreland, the chief of police. No substantial difference is found between the statements of these two witnesses, at least none affecting the legal question presented.

If we understand appellant, he insists that in making the written statement to the county attorney he was, in the language of article 694, supra, “testifying against persons who have violated” the law'against transporting intoxicating liquor; also, that he was “required to so testify,” and that, therefore, he cannot be punished for acts disclosed in such statement.

Giving full effect to all the testimony beard by the court out of the presence of the jury, we still find nothing in this record supporting any such proposition as that appellant was required to testify against himself. On the contrary, the undisputed testimony shows that he was told that he did not have to make any statement unless he wanted to, and that whatever statement he made could be used against him. In other words, we find that he was given the full statutory warning usually prefacing confessions held admissible in all character of criminal cases.

In addition, we might observe that appellant in his statement did not “disclose” any acts for which he is here sought to be punished. What he told the county attorney, at the time the statement was made, amounted only to facts which were already known to the chief of police Moreland, and Mr. Armstrong who accompanied Mr. Moreland at the time appellant’s truck was searched and the whisky found therein. In other words, all the testimony given upon this trial before the jury, and upon which the state relied for conviction, consisted of facts known to the officers prior to the time appellant made the written statement.

To hold that appellant was required to make this statement, or that the making of same under these facts was requiring him to give testimony against himself, would be to establish a precedent for the rejection of all confessions of criminals in all cases; the law requiring as a predicate for the admission of such confessions that the same be freely and voluntarily made, and, except in certain cases, after having been warned by the person to whom the statement was made. This we are unwilling to do.

We see no necessity for the introduction of this testimony before the jury, and are of opinion that the announcements of Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747, and Weddle v. State, 112 Tex. Cr. R. 250, 16 S.W.(2d) 244, are sound and enunciate a correct rule applicable here. In addition, we note that all the evidence heard by the court on the question attempted to be raised, appears to be against the proposition that appellant was required to give testimony; and we further find no testimony supporting such proposition. That is to say, that nothing thus heard, as far as this record reflects, suggests that appellant ’ was required to testify, and no issue being made in no event would there have been need for the submission of the question to the jury.

We have no reason to believe that the*statute involved, article 694, supra, evidences any tenderness on the part of the Legislature toward one charged with a violation of the liquor law, greater than toward one charged with rape, murder, burgláry, etc., who makes a confession of his guilt in statutqry form. We regard what we said in Medlock’s Case, 108 Tex. Cr. R. 274, 1 S.W.(2d) 808, as correct and applicable.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

When the officer who searched the appellant’s car and made the arrest' was called as a witness for the state, the court; 'at the request of the appellant, retired the jury' and heard testimony of Moreland (the ’ arresting officer), whose direct and cross examinátion upon the hearing before the judge is set out in bill of exception No. 1, and covers several pages of the record. The testimony given by Moreland, if true, was deemed by the court to demonstrate the existence of probable cause for the search of the appellant’s automobile and his arrest by reason of the discovery made in the search. The testimony so given before the court, including the direct and cross examination, in the judgment of this court, fails to present any issue of fact on the question of probable. cause for the arrest and search. On the hearing mentioned the appellant did not testify but introduced his written confession.

In many cases the announcement has been made that where the evidence touching probable cause is without conflict, the question of probable cause was one for the court to determine. See Jenkins v. State (Tex. Cr. App.) 32 S.W.(2d) 848; Battle v. State, 105 Tex. Or. R. 568, 290 S. W. 762; Weddle v. State, 112 Tex. Cr. R. 250, 16 S.W.(2d) 244; McPherson v. State, 108 Tex. Cr. R. 265, 300 S. W. 936; Glenniwinkel v. State, 114 Tex. Cr. R. 188, 21 S.W.(2d) 514; Borders v. State, 115 Tex. Cr. R. 35, 27 S.W.(2d) 173; Filpot v. State, 114 Tex. Cr. R. 278, 26 S.W.(2d) 202; Hurst v. State, 111 Tex. Cr. R. 245, 13 S.W.(2d) 95; Patterson v. State, 111 Tex. Cr. R. 242, 13 S.W.(2d) 97.

Appellant made a written confession which is in conformity with the statute on confessions when one is under arrest. It was not, however, introduced in evidence before the jury. The confession was made under the following circumstances, as revealed by the record: The appellant was in jail, under arrest, charged with the offense of transporting intoxicating liquor. The next morning after his arrest, he was brought by the officer in charge of him from the jail to the office of the county attorney. There were present the chief of police, a deputy sheriff, and a justice of the peace. The county attorney had previously been informed of the arrest of the appellant. A conversation took place as related by the county attorney, who said, in substance, that the appellant was brought into his of-flee about tbe charges of which the county attorney, had been informed on the night before by the witness Moreland, who arrested the appellant; that is to say, that the appellant’s car had been searched and a quantity of ■ whisky found therein which the appellant admitted he had transported. The appellant was asked by the county attorney what he wanted to do. The county attorney said it seemed that the appellant said he had been caught and that he did not think there was very much for him to do; that he had been caught and whisky found in his truck, and that there was not very much to be done. In that connection, the appellant was told that he had a right to make a statement about it, and if he wanted to, he could do so, but that he did not have to do so; that if he did make a statement it could be used against him but not for him, that is, the county attorney gave the statutory warning preliminary to a confession. The appellant then made the statement to the county attorney. The county attorney said: “I was trying to find out where he had bought the whisky and to get, at the seller. That is a fact. If I remember correctly, I gave him this statutory warning before he told me anything about the statement. ⅜ * * That statement he made was a narrative statement resulting from the questions and answers propounded and given. I did not reduce it to writing in question and answer form. I would ask the question and he would answer it, and then I would reduce that to narrative form.”

In the written confession the appellant declared that he was moving from Harlingen, Tex., to Runnels county, and was arrested in Ballingerthat he came in a truck from Har-lingen ; that he; bought four and one-half gallons- of whisky at $5 per gallon from a person whom he • took to be a German, but whose name he did not disclose.

The appellant' contends that his appearance, while undef arrest, before the county attorney and justice of the peace, and his statement in their hearing, results, by virtue of the terms of article 694, P. C., in immunity from prosecution. The statute in question reads thus: “No person shall be excused from testifying against persons who have violated any provision of this chapter for the reason that such testimony will tend to incriminate him, but no person required to so testify shall be punishable for acts disclosed by such testimony.”

The appellant relies upon the following cases: Fine v. State, 112 Tex. Cr. R. 652, 18 S.W.(2d) 156; Douglas v. State, 99 Tex. Cr. R. 413, 269 S. W. 1041; Johnson v. State, 109 Tex. Cr. R. 8, 2 S.W.(2d) 452; Lewis v. State, 103 Tex. Cr. R. 64, 279 S. W. 828; Dunagan v. State, 102 Tex. Cr. R. 404, 278 S. W. 432, in which reversals were ordered. He attempts to' distinguish the case of Medlock v. State, 108 Tex. Cr. R. 274,1 S.W.(2d) 308.

In the case of Johnson v. State, 109 Tex. Cr. R. 8, 2 S.W.(2d) 452, the trial court rejected the testimony of the appellant that he was forced to testify, citing Lewis v. State, 103 Tex. Cr. R. 64, 279 S. W. 828; Dunagan v. State, 102 Tex. Cr. R. 404, 278 S. W. 432; Douglas v. State, 99 Tex. Cr. R. 413, 269 S. W. 1041.

In Hillman v. State, 103 Tex. Cr. R. 603, 281 S. W. 874, the appellant was called three times before the grand jury and gave testimony implicating one Jirasek in transporting intoxicating liquor. The testimony given by the appellant was used against him on his trial.

In the Lewis Case, 103 Tex. Cr. R. 64, 279 S. W. 828, the accused was forced to give testimony before the grand jury against one Wilkes, which, on the appellant’s trial, was used against Lewis.

In Fine’s Case, 112 Tex. Cr. R. 652, 18 S.W.(2d) 156, the accused, when summoned before the grand jury and sworn as a witness, and while interrogated, gave testimony implicating herself and one Hart. She was required to testify and was therefore entitled to immunity.

Apparently the question presented is to be solved by determining from the record whether the appellant was required to give evidence such as described in the statute, article 694, . supra. The meaning of the word “required,” as used in the statute, has been discussed in Medlock’s Case, 108 Tex. Cr. R. 274, 1 S.W.(2d) 308, 310, from which the following quotation is taken: “It will-be observed that, to exempt from punishment any person who has testified against those supposed to have violated the provisions of the chapter including said article, such persons must have been required to so testify.”

After citing many precedents, the opinion concludes: . ;

“Prom these and other authorities we conclude that testimony given, or a statement made before a court or grand jury, which -is free from the elements of demand, or command or compulsion, and appears to have been made voluntarily, and with knowledge that it is' not demanded of compelled, would be admissible in evidence against the party making it, under a statute such as this, and such party could not claim immunity for having given such testimony. * * ⅜ ■ '
“He made a statement, some questions being asked him by the district attorney,. and when the statement was reduced to writing, and the statutory warning theretofore given him had been inserted, same was exhibited to him, and b.y him signed. Nowhere in his testimony as given on the trial does he affirm or suggest that he was overreached, compelled, or required in any sense to make such statement.”

There are a number of statutory provisions under which a person may he required to testify and his doing so results in immunity. Article 598, P. C., applies to fire insurance transactions. Article 639, P. C., relates'to gaming cases. Article 694, supra, under consideration, relates to violations of the intoxicating liquor law. Article 652, P. C., relates to violations of the law against betting on elections.

There are certain provisions touching preliminary investigations such as the court of inquiry defined by article 886, O. G. P., examining trials governed by articles 245 to 266, inclusive, grand jury, controlled by articles 333 to 366, C. C. P. The power to require a witness to testify pertains to some of the statutory provisions, such as the grand jury, the court of inquiry, and, as a matter of course, to the trial of one charged with an offense by complaint, information, or indictment. As indicated in the Medlock Case, supra, if the statement by one under arrest is made under circumstances where he is not required, or when he was not before a tribunal which could punish him or cause his punishment upon his refusal to testify, then such statement is not such as results in immunity under the provisions of article 694, supra.

In the present case, it seems clear from a recital of the facts that the appellant was not compelled or required to give testimony or to make any such statement, but that such written statement as he made and signed was voluntarily made after due warning, and was written by the county attorney in narrative form as a summary of the replies of the appellant to certain questions propounded to him by the county attorney. The information given does not disclose the name of the person from whom the appellant claims to have purchased the whisky. None of the answers to the questions propounded to the appellant before the written statement was signed by him were available to the state, as evidence against him, for the reason that' he was under arrest, and the statements were verbal, and under article 727, C. C. P./were, not admissible in evidence against him. The written statement made by the appellánt was not used by the state. It was introduced by the appellant before the- court but not before the jury. Prior to the occasion on which he made the statement upon which he bases his claim for immunity, he had, at the time of his arrest and incident thereto, made to the arresting officer statements which were admissible against him under the principle of res gestse, which were incriminating and sufficient to support the conviction against him,, and which, in fact, constituted the evidence upon which the state relied for a conviction.

The appellant’s contention, as understood by the members of this court, is apparently in conflict with the legislative intent in enacting the immunity statutes to which reference has been made and the retention of the confession statute (article 727, C. C. P.) as part of the law of the state. The fact that the appellant made a confession under the conditions prescribed by article 727, supra, cannot, without the destruction of that article, be construed to exculpate him. The opposite is the intent and effect of article 727, supra. It seems obvious that the immunity statutes and the confession statutes are to be construed together.

In addition to the above, attention is drawn to the fact that article 694, supra, obviously means that to entitle one to immunity, “the accused must give testimony.” In the present instance, the appellant gave no testimony. He was neither before a court, an examining court, a grand jury, nor court of inquiry. As the record is understood, he was merely having a conversation with the county attorney under circumstances which gave him no power to require a statement, and which led to the making of the appellant’s voluntary, confession in writing in accord with the terms of the statute, influenced, it appears, by nothing save his own volition.

The motion for rehearing is overruled.


author: CALHOUN, J.

text:
    ARMSTRONG v. STATE.
    No. 14705.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    W. J. Barnes, of Houston, and Frank Jud-kins, of Eastland, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for the theft of an automobile over the value of $50; the punishment, confinement in the penitentiary for two years.

There is no statement of facts in this case. Several exceptions were taken to the charge of the court. We have examined said charge and no fundamental error is found therein. In view of the charge as given, we cannot say that it was not applicable to a state of facts that might be made by the evidence under the allegation of the indictment, and therefore, in the absence of a statement of facts, the charge must be held suflicient. Henderson v. State, 20 Tex. App. 304; Wallace v. State (Tex. Cr. App.) 200 S. W. 1088; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Wilkerson v. State (Tex. Cr. App.) 45 S. W. 805; Williams v. State, 67 Tex. Cr. R. 590 150 S. W. 185.

Appellant reserves a bill of exception to remarks of the district attorney in his closing address to the jury, wherein he is alleged to have used the following language: “Has this defendant proven oy any witness that he ever paid one dollar for this automobile which he claims to have purchased?”

The court qualified said bill to the effect that he heard what the district attorney said in his closing argument and that there was nothing said by him which could be construed as referring to defendant’s failure to testify, nor did said district attorney make the statement as contained in the bill of exception, but.on the contrary what was said by the district attorney was invited by and made in direct answer to the argument of counsel for defendant. There is no exception to said qualification. As qualified, no error iS shown. Smith v. State, 21 Tex. App. 277, 17 S. W. 471; Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534; Moore v. State, 65 Tex. Cr. R. 453, 144 S. W. 598; Campbell v. State, 62 Tex. Cr. R. 561, 138 S. W. 607, 609.

No error appearing, the judgment is affirmed.

PER CURIAM.

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


text:
    SPRINKLE v. STATE.
    No. 14397.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    David L. Broadus, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is robbery; penalty assessed at confinement in the penitentiary for five years.

The victims of the offense were Jesse W. Faulkner and Marjorie Moore, by whose testimony it was shown that the appellant, with a pistol, caused them to stop their car upon the highway; demanded and received their money. The appellant’s testimony and that of his witnesses presented the defense of alibi.

Bill of exception No. 1 relates to the sufficiency of the evidence.

By bill No. 2 it is shown that J. W. Faulkner and Marjorie Moore each testified on direct examination in behalf of the state, that the appellant assaulted and robbed them about 11:30 at night on the 12th of September, 1930, and took from them $44 in money, a watch and a ring, whereupon the state rested. The appellant presented a number of witnesses on the issue of alibi. After the appellant rested, the state called the witness Cothan, who testified that on the morning of September 13th, he arrested the appellant and took from Mm one dollar and a few cents in change, and a pocket knife. Objection was made that the testimony was not in rebuttal. It is not claimed or shown that the testimony was not relevant to some issue in the case.

Bill No. 3 complains of an inquiry of the witness Faulkner as follows: “Now, Mr. Faulkner, why was-it that you gave Carl Sprinkle $44.00 in money and your watch? What was your reason for doing that?”

The witness replied: “I was afraid if I didn’t he would kill me.” The bill shows no error.

The judgment is affirmed.


author: CHRISTIAN, J. MORROW, P. J.

text:
    DEAN v. STATE.
    No. 14692.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Rehearing Denied Nov. 13, 1931.
    L. D. Hartwell and D. W. Huffar, both of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

In the indictment it was charged that the appellant “did then and there unlawfully possess for the purpose of sale, certain spirituous, vinous and malt liquors capable of producing intoxication..” In submitting the case to the jury for finding the court used the following language: “ Did unlawfully have in her possession intoxicating liquor for the purpose of sale.” It is asserted in the motion for new trial that there is fundamental error in the failure of the court in instructing the jury to use the verbiage in which the offense was described in the indictment. The position is untenable. See Tucker v. State, 94 Tex. Cr. R. 505, 251 S. W. 1090; Vernon’s Ann. Tex. P. C. 1925, Vol. 1, p. 438, note 14; Benson v. State, 95 Tex. Cr. R. 313, 254 S. W. 793; Stockton v. State, 95 Tex. Cr. R. 607, 255 S. W. 1119; Stephens v. State, 99 Tex. Cr. R. 192, 268 S. W. 744; Elbury v. State, 114 Tex. Cr. R. 270, 25 S.W.(2d) 846; Holliman v. State, 108 Tex. Cr. R. 94, 299 S. W. 249; Lenz v. State, 106 Tex. Cr. R. 30, 290 S. W. 167.

The contention is untenable for the additional reason that, to require review of the charge of the court, there must be exception to the charge during the trial, as provided by article 658, C. C. P.

The motion for rehearing is overruled.


text:
    LANDRUM v. STATE.
    No. 14385.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    W. T. Davis, of San Augustine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted for the forgery of. an indorsement on a check, and his punishment assessed at two years’ confinement in the penitentiary.

The charging part of the indictment avers that appellant did “ * * * without lawful authority, and with the intent to injure and defraud, willfully and fraudulently make a false instrument in writing purporting to be the act of another, to-wit: the act of E. L. Henry, which said instrument to the tenor following:

“San Augustine, Texas, - 192 — ■, -- No.-.
“Silsbee State Bank of Silsbee, Texas. Pay to Cash or bearer $7.50 Seven & 50/100 Dollars
“C. E. Landrum.
“On back thereof, E. L. Henry.”

The evidence appears undisputed that appellant wrote the check in question, and therefore, if there was any forgery, it consisted of the unauthorized placing of Henry’s name on the-back thereof as an indorsement. There are no averments in the indictment which make it plain that it was the purpose and intent of the pleader to charge the forgery of said indorsement. The very question controlling was discussed at length in the recent case of Cochran v. State, 115 Tex. Cr. R. 201, 30 S.W.(2d) 316. See, also, Miller v. State (Tex. Cr. App.) 34 S. W. 267; McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394; Pierce v. State, 38 Tex. Cr. R. 604, 44 S. W. 292; Gumpert v. State, 88 Tex. Cr. R. 492, 228 S. W. 237; Cofer v. State, 107 Tex. Cr. R. 125, 295 S. W. 189, and authorities therein cited. Also Bishop’s New Crim. Proc. vol. 3, (2d Ed.) § 410, p. 1472.

It being evident from the record that it was the purpose of the pleader to charge a forgery of the indorsement and being insufficient for that. purpose, the judgment must be reversed and the prosecution dismissed, and it is so ordered. If further prosecution should be desired, it must be under a new indictment.


text:
    STROUP v. STATE.
    No. 14379.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Robt. H. Hopkins, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is aggravated assault; penalty assessed at a fine of $200, and confinement in the county jail for one year.

Sam West, driving his automobile upon the street early in the night and having in his company Dick Watson and Miss Boyles, ob-. served Monta Ball and Wannetta Harvey •walking on the street. Miss Ball and Miss Harvey accepted the invitation of West to ride in the car. After driving around the city for a time, the car was stopped at a drug store, and, at the invitation of West, the appellant (Eddie Stroup) got in the car. The parties drove into the country for some four or five miles and fell in with a couple (friends of West and his companion), who had stopped on the highway. After getting out of their automobile and walking on the road for a time, the parties returned to the city, and the prosecutrix (Monta Ball) and her ■companion (Miss Harvey) were driven to their respective places of abode at approximately ten o’clock at night.

That the appellant was guilty of any misconduct was controverted by his own testimony and that of his companions, save the prosecutrix and Miss Harvey, whose testimony went no further than to state that the appellant put his arm around the prosecutrix. So far as the record shows, there is an absence of corroboration of the prosecutrix’s testimony touching any complaint or manifestation of displeasure because of the conduct of the appellant. The prosecutrix testified that, in getting into the car, it was her intention to go to church, but there is an absence of testimony to any effort on her part to get out of the car at the drug store or elsewhere, where opportunity was afforded her. From her testimony, we quote: “We were out there in the country about an hour and a half or two hours. He put his hands on me and his arms around me many times and I resisted him each time. He asked me to go with him to-Dallas, or his apartment, or to Bake Dallas, and spend the night with him, and I refused to do so. His conduct humiliated me and caused me to feel a sense of shame.”

In instructing the jury, the court charged the substance of article 1139, P. C. 1925, which reads as follows: “When an injury is caused -by violence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show the accident or innocent intention. The injury intended may be either bodily pain, constraint, a sense of shame or other disagreeable emotion of the mind.”

Objection to the charge was made and properly presented, and it is thought that, under the evideface before the jury, the court was in error in refusing to eliminate the paragraph of the charge mentioned. This view, we think, is supported by many precedents ; namely, Brown v. State, 42 Tex. Cr. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806; Fowler v. State, 113 Tex. Cr. R. 407, 21 S.W. (2d) 672; Suiter v. State (Tex. Cr. App.) 40 S.W.(2d) 83, and numerous cases therein collated.

Upon another trial, in addition to eliminating the paragraph above mentioned, there should be an instruction to the jury, in substance, that if the appellant did not design to injure the prosecutrix, but from her conduct he had reasonable ground to believe and did believe that his conduct was agreeable to her, there should be an acquittal. Among the cases in point are Kearse v. State (Tex. Or. App.) 88 S. W. 363, 364; Brown v. State, 42 Tex. Or. R. 417, 60 S. W. 548, 96 Am. St. Rep. 806; Mooring v. State, 90 Tex. Or. R. 129, 234 S. W. 70.

The ruling of the court denying a severance from Sam West, who was also under prosecution, is assailed, but a discussion of it is pretermitted further than to say that the application for a severance fails to comply with the governing statutes; namely, articles 651 and 652, O. O. P. 1925, in that there is no statement that the evidence of West was material to the defense of the appellant. See Hughes v. State, 115 Tex. Cr. R. 345, 27 S.W.(2d) 815.

Because of the error pointed out, the judgment is reversed, and the eause remanded.


author: LATTIMORE, J.

text:
    CRIM v. STATE.
    No. 14421.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    J. W. Culwell, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for keeping and permitting to be kept a disorderly house; punishment, a fine of $200 and twenty days in the county jail.

The state’s attorney with this court has filed his written opinion statipg that in his judgment the facts in this record do not make out a violation of the law. We are inclined to agree with him.

The complaint- is somewhat vague, but appears to charge the offense described in article 514 of our .Penal Code. Same charges appellant with willfully and knowingly maintaining, occupying, and controlling a house known as the York Hotel, as a bawdyhouse, to wit, a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation. The facts show that appellant and her husband moved into said hotel in December, 1930; that the officers raided the place along in February, 1931, and arrested a number of parties; that one of said parties, a woman, pleaded guilty to being a vag, but under which section of the vagrancy law she was charged is not shown. It' was.also shown that the general reputation of this woman for being a prostitute was bad. We find also in the record testimony that the general reputation of the York Hotel as a house of prostitution is bad. We held in Johnson v. State, 102 Téx. Cr. R. 409, 278 S. W. 210, that' a conviction could not be had for maintaining a disorderly house upon proof that such house had the general reputation of being a disorderly house. See, also, Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957. There is no testimony showing how long the woman referred to as found in the York Hotel, at the time of the raid in question, had been an inmate of said house, or that she was ever employed there, or that appellant ever knowingly or willfully permitted her to resort and reside in said house for the purpose of plying her vocation. We regret to reverse cases for the insufficiency of the testimony, but a careful study of this record convinces us that not enough proof was made against this appellant, of the fact that she willfully or knowingly permitted prostitutes to resort and reside in the .York Hotel, to form the basis of a fair judgment of conviction.

The judgment of the trial court will be reversed, and the cause remanded.


author: CHRISTIAN, J.

text:
    COBB v. STATE.
    No. 14383.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    E. T. Miller, of Amarillo, for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

Armed with a search warrant, officers went to a house in the town of Amarillo for the purpose of making a search for intoxicating liquor. Upon entering the house, they saw appellant and one Whittington. Appellant and his companion were using a syphon to draw whisky from a keg. Upon seeing the officers, they ran out into the back yard, where they were arrested. A search of the house disclosed 14 pints of bonded whisky, 5 quarts of alcohol, 7 pints of alcohol, 1 quart of gin, 5 quarts of red whisky, 115 bottles of beer, 12 gallons of beer mash, and a number of empty bottles and funnels, and some hose and corks. Prior to making the search, the officers had watched the house. Cars would approach the house at night with their lights put. Invariably they drove to the back door. These cars would remain two or three minutes and then leave. The window shades of .the house were generally down. One of the officers testified that he went to the house the night before the raid for the purpose of watching it, and that while he was there appellant drove to the house, stopped his car, and entered. He said that the lights on appellant’s car were out, and that appellant came out of the house in a short time and entered his car and drove away. There were no groceries or clothing in the house, and very few cooking utensils. There was a bedstead, with a mattress on it. There Were no sheets, quilts, or bed clothing of any character on the bed. Appellant did not testify in his own behalf, but offered the owner of the house, who testified that appellant was not living in the house at the time the officers made the raid. There was other testimony from witnesses showing that appellant resided at another place. ,

Appellant objected to the testimony of the officers touching the result of the search on the. ground that the description of the premises to be searched varied from the description of the house actually searched. According to the proof introduced by appellant, he was in no manner interested in the premises. Hence he was in no position to complain because of an illegal search. Pruett v. State, 114 Tex. Cr. R. 44, 24 S.W.(2d) 41. In Whittington v. State (Tex. Cr. App.) 38 S.W.(2d) 814, we considered the appeal of appellant’s companion, and, on facts practically the same as those disclosed by this record, held that, as Whittington was in no manner interested in the premises, he could not complain because of the illegal search.

Appellant has filed no brief pointing out the matters relied upon for reversal. Our examination of the record leads us to the conclusion that the matters raised by the bills of exception must be determined adversely to appellant’s contention. In Whittington v. State, supra, this court considered practically the same questions disclosed by the record now under consideration, and held adversely to Whittington’s contentions.

The judgment is affirmed.

PER CURIAM.

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


text:
    HENDERSON v. STATE.
    No. 14715.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    L. G. Mathews, of Eloydada, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

The sheriff of Motley county testified, in substance, that he went to appellant’s house at 8:30 p. m. and waited outside near a window while a man by the name of Duncan went into the house and approached appellant ; that appellant was lying on a bed near the window; that he (the witness) heard appellant and Duncan talking; that appellant said to his (appellant’s) wife: “You know where it is. Go and get it for him.” That appellant’s wife left the room and returned in a few minutes with something in a paper sack; that Duncan gave appellant some money, and appellant’s wife delivered the paper sack to Duncan; that thereupon he (the witness) went into the house and asked Duncan what he had in the sack; that Duncan told him that he had candy in the sack; that appellant said: “That is whisky he brought here to sell me.” That he (the 'witness) took possession of the sack and found that it’ contained a quart of whisky; that he found also one-half gallon of whtóky under appellant’s pillow. This witness testified that he did not know that Duncan was going to appellant’s house for whisky, although he had seen Duncan at the courthouse •prior to his visit to appellant’s residence. The officer accompanying the sheriff testified that a conference he and the sheriff had had with Duncan led him to believe that Duncan would be at appellant’s residence’ at the time he and the sheriff were to make the raid. It appears that Duncan was on parole from an insane asylum in Oklahoma. The state did not offer him as a witness.

Appellant testified, in substance, that Duncan had brought the whisky to his house earlier in the day, he having agreed to take a gallon of whisky in the event Duncan could find some one to sell it to him; that when Duncan brought the whisky to the house he gave Duncan $6 for his part of the whisky and Duncan left his quart in the house, saying that he would come back later for it; that Duncan was leaving with the quart of whisky he had left there earlier in the day when the sheriff entered and made the arrest ; that Duncan did not pay him any money, as testified to by the sheriff; that he did not possess the whisky found under his pillow for the purpose of sale. Appellant’s wife and other witnesses corroborated appellant’s version of the transaction.

Other than- the question as to the sufficiency of the evidence, no matters are brought forward for review. The evidence presented an issue for the jury, who were the sole judges of the credibility of the witnesses and the weight to be given their testimony. We are unable to reach the conclusion that their finding should be disturbed.

The judgment is affirmed.

PER CURIAM.

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