author: LESLIE, J.

text:
    CRANE v. ROBERT & ST. JOHN MOTOR CO.
    No. 888.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 2, 1931.
    Oliver F. Cunningham, of Abilene, for plaintiff in error.
    Kirby, King & Overshiner, of Abilene, for defendant in error.
   LESLIE, J.

Robert & St. John Motor Company, a corporation, brought this suit against Callie Windham Crane and her husband, William Crane, to recover on a promissory note alleged to have been executed and delivered by Callie Windham Crane to T. A. Irvin at a time when she was a feme sole. Plaintiff alleges itself to be the holder of the note in due-course for a valuable consideration; that it was past due and unpaid, and the just and legal obligation of the defendants, etc. The prayer was for general and special relief, etc.

Botli defendants were duly cited, but neither appeared and answered. Judgment by default was rendered against them “jointly and severally for the sum of $385.00 and all costs of suit.” The defendant William Crane brings error to this court and seeks a revision of that part of the judgment against him in his several or personal capacity.

An examination of the plaintiff’s petition clearly discloses that the debt sued on is the antenuptial debt of the wife. For such a debt the husband is not liable personally. Crim et al. v. Austin, Banking Com’r (Tex. Com. App.) 6 S.W.(2d) 348; Id. (Tex. Civ. App.) 299 S. W. 322; Johnson v. Griffiths & Co. (Tex. Civ. App.) 135 S. W. 683; Law of Marital Rights in Texas (Speer) (3d Ed.) § 156, p. 211.

It will be observed that article 1985, R. S. 1925, provides: “The husband shall be joined in suits for separate debts and demands against the wife, but no personal judgment shall be rendered against the husband.” This should settle the matter of the right of the defendant in error to take a personal judgment against the husband, but looking further we find, in the opinion in Evans et al. v. Breneman (Tex. Civ. App.) 46 S. W. 80, 81, where the court was considerihg a personal judgment against a husband and wife for services rendered for the benefit of her separate estate, it is said: “It was proper, therefore, to render a personal judgment against both husband and wife; but it should have been further decreed that the money be made out of their community estate, or the separate estate of the wife. Grant v. Whittlesey, 42 Tex. 320; Taylor v. Murphy, 50 Tex. 291.” Applying this rule to the facts of the instant case, it becomes this court’s duty to reform the judgment of the trial court in the matter complained of, and affirm the same.

The matter of properly adjudicating the costs of this appeal arises next. In regard to that question,. the opinion from which the above excerpt is taken lays down the following rule: “The attention of the [trial] court was not called to the omission in the judgment by appellants, or it would doubtless have been remedied, and the costs of this court will therefore be assessed against them.”

The rule in substantially the same language was so stated in Johnson v. Griffiths & Co., supra; Nacogdoches Ind. School Dist. v. Adams (Tex. Civ. App.) 36 S.W.(2d) 567; Prim v. Latham (Tex. Civ. App.) 6 S.W.(2d) 173.

The judgment of the trial court will therefore be reformed, and it is the order of this court that the same run against the separate property of the wife, Callie Windham Crane, and the community property of herself and said husband, and that execution be so levied. No execution shall be levied upon the separate property of William Crane. The cost of appeal is adjudged against plaintiff in error.

As reformed the judgment is affirmed.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    JOHNSON v. WOODRUFF et al.
    No. 2115.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 23, 1931.
    Rehearing Denied Oct. 28, 1931.
    Jas. G. Donovan, Chas. E. Kamp, and Walter F. Brown, all of Houston, for appellant.
    Harry W. Freeman, of Houston, for appel-lees.
   WALKER, J.

This case was tried in the court below by the judge without a jury. Appellant’s two points of reversible error are: (a) The record does not show that the trial court had jurisdiction to try this case, (b) The trial court failed to file conclusions of fact and law within ten days after the adjournment of the term of court at which the ease was tried, though requested so to do by appellant.

The facts of these propositions are as follows: This case was originally filed in the Eightieth judicial district court of Harris county by appellant, as plaintiff, against ap-pellees, as defendants, praying for a specific performance of a contract for a conveyance, of certain real estate. The case was tried in the Fifty-Fifth judicial district court of Harris county, and the final judgment herein denying recovery was recorded in the minutes of that court. No judgment of any kind was entered in the minutes of the Eightieth judicial district court so far as the transcript herein discloses. The transcript shows no transfer from the Eightieth judicial district court to the Fifty-Fifth judicial district court. The January-July term, 1930, of the district courts of Harris county convened on January 6th, and adjourned on July 5th. The July-December term of these courts convened immediately after the adjournment of the January-July term, and did not adjourn until the end of that year. The trial of this case began on February 11, 1930, when judgment was entered against appellant, at which time he requested the court to file conclusions of fact and law. Though that request was duly entered by the trial court, it was not complied with at that time. Appellant, in due time, filed his motion for new trial against the judgment of the trial court, which was carried by the court over into the July-December term, and was overruled on the 8th day -of August, 1980, at which time no conclusions of fact and law had been filed. Immediately after the overruling of the motion for new trial, appellant renewed his request for conclusions of fact and law. This request was not complied with until the 8th day of November, 1930, during the July-December term, thirty days before the expiration of the time in which appellant was required to file his record in the Court of Civil Appeals, but more than four months after the adjournment of the January-July term, and eighty-nine days after the motion for new trial was overruled.

Subdivision 21 of article 2092 of the-Practice Act, governing the district courts of Harris county, is as follows: “The judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own court room try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the ease is pending and at the time the judgment or order is rendered, and two or more judges may try different cases in the same court at the samé time, and each may occupy his own court room or- the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or' proceeding pending in his court to any other of said courts, and the judge of any court to which a case or proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his court room try any case pending in any other of such courts.”

Under this statute, the judges of the district courts of Harris county had the power to transfer cases from on.e court to another. So, as this case originated in the Eightieth judicial district court and was tried in the Fifty-Fifth judicial district court, a presumption must be indulged that the transfer was regular. Appellant says that presumption cannot be indulged because the certificate of the clerk to the transcript affirmatively excludes an order of transfer. There are two answers to this contention. First, the cited article does not require that the order of transfer shall be entered in the minutes of any of the courts, and, if not regularly entered in the minutes, it could not be reflected by the transcript. Second, if this article contemplates a judgment of transfer, it does not require that the judgment shall be entered in the minutes of the court trying the case. The certificate of the clerk to the transcript herein purports to cover only the proceedings in the Fifty-Fifth judicial district court and makes no reference to the Eightieth judicial district court, so there is nothing on the face of the transcript rebutting the presumption of regularity.

Under Lamm v. Gohlman, Lester & Co. (Tex. Civ. App.) 279 S. W. 552, 556 and Lawson-Richards, Inc., v. Blalock Lumber Co. (Tex. Civ. App.) 30 S.W.(2d) 797, the trial court’s conclusions of fact and law were duly filed. In that case, the Galveston Court of Civil Appeals held that article 2247, R. S. 1925, did not govern the filing of conclusions of fact and law by the district judges of Harris county, and, further, that there was no specific statute regulating their preparation and filing. On this issue, the court said: “As there is now no law fixing a specific time for filing findings of fact and conclusions of law in-the district courts of Harris county, we think any such findings and conclusions filed in such courts in a reasonable time before the time for filing the transcript in the appellate court should be held to have met the demands of the law.”

That case was cited with approval by the Austin Court of Civil Appeals in Lawson-Richards, Inc. v. Blalock Lumber Co., supra. In the Gohlman, Lester & Co. Case, the appellant had thirty-three days after the filing of conclusions of fact and law in which to file his record in the Court of Civil Appeals. In this case, he had thirty days. We construe the cited cases as squarely in point against appellant’s proposition.

Appellant would distinguish these cited cases on the ground that his case was “tried” at the January-July term, and the motion for new trial was overruled and the. conclusions of law and fact filed during a term at which the case was not “tried.” While the trial of appellant’s case was begun during the January-July term, it was not concluded until the overruling of the motion for new trial at the July-December term. The consideration by the court of the motion for new trial was as much a part of the “trial” of the case as any other proceeding had from the time the case was called for trial until the final overruling of the motion for new trial.

The judgment of the trial court is in all things affirmed.


author: PER CURIAM.

text:
    V. C. BOX, Sheriff, et al. v. H. F. KIRBY, District Judge, et al.
    No. 9897.
    Supreme Court of Texas.
    Oct. 27, 1931.
    Claude Pollard, of Austin, F. A. Woods, of Franklin, Law Henderson, of Bryan, and C. S. Bradley, of Groesbeck, for complainants.
   PER CURIAM.

We have examined the petition presented in this case, and find that the relief prayed for presents matters within the jurisdiction of the Court of Civil Appeals for the Tenth District, at Waco, Tex.; and, in accordance with the previous practice of this court, we decline to take jurisdiction of the petition until the Court of Civil Appeals has first acted upon the subject-matter.

This order of this court is made without prejudice to the merits of the subject-matter of the controversy, and without in any way considering its merits.


text:
    MERCHANTS’ COTTON OIL CO., Inc., v. ACME GIN CO. et al.
    No. 18401.
    Supreme Court of Texas.
    Oct. 28, 1931.
    Beall & Beall, of Sweetwater, for plaintiff in error.
    Edward J. Hammer, of Sweetwater, for defendants in error.
   PER CURIAM.

The only question presented by the application for writ of error is one of admissibility of evidence. Since the evidence excluded does not necessarily control the ease, nor present a question of substantive law, or any other question which the statute gives us the power to review, we are compelled to dismiss the application for want of jurisdiction. Browder v. Memphis Ind. School Dist., 107 Tex. 535, 180 S. W. 1077. However, we have examined the record on the subject of the admissibility of the telegram involved, and by dismissing this application we do not mean to indicate an agreement with the Court of Civil Appeals that the message was properly excluded.


author: CALHOUN, J.

text:
    WILLIAMS v. STATE.
    No. 14752.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Gentry & Gray, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is possessing 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.


author: CHRISTIAN, J.

text:
    ECHOLS v. STATE.
    No. 14733.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    G. W. Dunaway, of Midland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is receiviñg and. concealing stolen property; the punishment, confinement in the penitentiary for two years.

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.


text:
    PUTMAN v. STATE.
    No. 14693.
    Court of Criminal Appeals of Texas..
    Oct. 21, 1931.
    L. L. Bowman, Jr., of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is possessing intoxicating 1⅛ uor 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.


author: 'CALHOUN, J.

text:
    RUSSELL v. STATE.
    No. 14685.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Murchison ,& Murchison, of Haskell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   'CALHOUN, J.

The offense is transporting liquor; 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.


author: HAWKINS, J.

text:
    CARSON v. STATE.
    No. 14759.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Joe Harris, of Houston, and Adams & Mc-Alister, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol ; punishment being a fine of $100.

The record is here without statement of facts or bills of exception. ' In such condition, nothing is presented for review.

The Judgment is affirmed.


author: MORROW, P. J.

text:
    CASTRO v. STATE.
    No. 14671.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    See, also, 115 Tex. Cr. R. 291, 29 S.W.(2d) 760.
    L. D. Stroud and Ney Wade, both of Bee-ville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of five years.

In compliance with the statute, the appellant sought a suspended sentence. The court instructed the jury upon that subject in a charge presented on the 18th- day of May, 1931. On the same day the jury returned the following verdict:

“We, the jury, find the defendant guilty, as charged in the indictment, and assess his punishment at five’ (5) years in the penitentiary. We further find that the defendant lias never been convicted of a felony in this State, or in any other State, and we recommend a suspension of the sentence.
“A. J. Kahler, Foreman.”

There was entered on the minutes of the court the following order:

“Sidney Smith et al. v. Margaret Whitehead et al. No. 5538.
“On this the 23rd day of May, A. D. 1931, the court being in the midst of the trial of the above entitled and numbered cause, and also in the midst of the trial of Cause No. 1917, State of Texas v. Simon Castro, and also in the midst of the trial of Cause No. 1973, State of Texas v. Asa H. Speer, Jr., the jury in said last named cause not having reported or agreed upon a verdict, and the time for the expiration of the term of this Court having arrived, and it being impossible to complete the trial of said cause before the expiration of this term of court, for the reason that the testimony has not been completed in Cause No. 5538, Sidney Smith, et al. v. Margaret Whitehead, et al., and cannot be fully completed for several days, and that further testimony will have to be heard in Cause No. 1917, State v. Simon Castro, some of which cannot be obtained for several days; and it being deemed expedient by the judge presiding, it is ordered that the term of this eourt be, and it is hereby, extended until the conclusion of such pending trials.”

Pursuant to the above order, the sentence of the appellant was delayed more than a month. On the 23d day of June, the state, through the district attorney, presented a motion to the court reciting the trial and the rendition of the verdict above mentioned, and requesting the eourt to disregard that part of the verdict of the jury in which the suspension of the defendant’s sentence was recommended and to enter a judgment condemning him to confinement in the penitentiary for a period of not less than two nor more than five years. The motion recites the filing of the application for a suspended sentence under oath with the statutory averments, that the statement was believed by the prosecuting officer to be true, and the judge had no knowledge to the contrary at the time of receiving said verdict and discharging the jury that the appellant had previously been convicted of a felony. On the same day that the verdict was rendered and after it was received and the jury discharged, but before sentence was formally presented, state’s counsel heard rumors to the effect that the accused had previously been convicted of a felony in Kleberg county, Tex. Attached to the motion was a certified copy of the judgment of the district court of Kleberg county showing the conviction of Simon Castro of a felony in February, 1931, in which the suspended sentence was awarded him.

Appellant demurred to the motion and also filed a motion to enter judgment upon the verdict as written by the jury and received by the court. The eourt overruled the defendant’s demurrer and motion, and sustained that of the state, and entered a judgment condemning the appellant to confinement in the penitentiary for a period of not less than two nor more than five years, and disregarded in said judgment the recommendation of the jury that the sentence be suspended.

The legality of the court’s action is now properly before this court for review. That the judgment entered cannot be upheld is manifest. State’s counsel before this court does not contend that the judgment can be affirmed.

The writer is of the opinion that not only is the judgment void, but that it is the right of the accused to have judgment entered in accord with the verdict giving to him the benefit of the suspended sentence. The procedure adopted impresses the writer as obnoxious to the rule that a new trial in a criminal case cannot be granted upon the motion of the state but upon that of the accused alone, and that the court is without power to enter a judgment or to annul a verdict in favor of the accused in a criminal case at the instance of the state. See article 752, C. C. P. 1925.

Under article 696, C. C. P., an informal verdict may, with the consent of the jury, be corrected before it is received, but cannot be changed without the consent of the jury, nor after the jury is discharged. By article 847, O. O. I*., this court is authorized to correct the judgment to conform to the verdict and to make in the judgment any correction which the law would authorize to be made in the eourt below. In McCorquodale’s Case, 54 Tex. Cr. R. 344, 98 S. W. 879, it is said, in substance, that there can be made in the appellate court any correction of a judgment that could be made in the trial court. Many eases are cited in Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, pp. 252, 253. See, also, Jones v. State, 80 Tex. Cr. R. 283, 189 S. W. 490; Oliver v. State, 97 Tex. Cr. R. 194, 261 S. W. 769; Malone v. State (Tex. Cr. App.) 32 S.W.(2d) 832; Barnes v. State (Tex. Cr. App.) 34 S.W.(2d) 605. See, also, article 698, C. C. P. 1925.

The exact question, so far as the writer is aware, has not heretofore been before this court. In the case of Bessett v. State, 78 Tex. Cr. R. 110, 180 S. W. 249, 251, there was no plea asking for a suspended sentence filed, 'and that issue was not submitted to the jury. The jury, however, found a verdict convicting the accused and recommending a suspended sentence. The court received the ver-diet and discharged the jury. In entering the judgment, the court ignored the recommendation for a suspended sentence. This was upheld in a divided opinion, to which Presiding Judge Davidson dissented. Prom Judge Davidson’s opinion the following is quoted: “What is a verdict of a jury anyway? This is answered by the statute (article 763, O. 0. P. 1911) as follows: ‘A verdict is a declaration by a jury of their decision of the issues submitted to them in the ease, and it must be in writing and concurred in by each member of the jury.’ It must be a jury of 12 members — no more and no less. O. O. P. 1911, art. 764; Const, art. 6, § 13. The judge is not a juror, and cannot render a verdict, or any part of it, in a felony case, nor can he substitute his judgment for the verdict of a jury. He has power to cause a correct and proper verdict to be returned, and, if such verdict is not rendered, he can retire the jury till they agree on such a verdict. He cannot substitute his judgment, however, for an incorrect or illegal verdict.”

This court, in Pritchard’s Case, 35 S.W. (2d) 717, expressly disapproved the majority opinion in the Bessett Case, supra, and sanctioned as sound the dissenting opinion of Judge Davidson, part of whose remarks are quoted above.

In Champion’s Case, 113 Tex. Cr. R. 172, 19 S.W.(2d) 63, 65, the issue of suspended' sentence was not' before the jury, notwithstanding which they rendered a verdict of conviction and recommended a suspended sentence. The trial court refused to receive the verdict, but with the consent of the jury, before it was discharged, eliminated the recommendation for a suspended sentence, and the court was upheld. In the Champion Case, supra, Judge Lattimore, speaking for the majority of the court said: “The proposition that the court cannot receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings. In Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998, 1003, we said: ‘The court could not accept the verdict of the jury and permit it to stand, and yet refuse to abide by it.’ The same thing is held in Essery v. State, 72 Tex. Cr. R. 414, 163 S. W. 17, and in Coleman v. State, 75 Tex. Cr. R. 66, 170 S. W. 150. We know of no holding to the contrary.”

As viewed by the writer, the action of the judge in the present instance does violence to the precedents and to the fundamental principle that the judge presiding over a trial has no right and no power to change a verdict rendered by the jury unless with their consent and before their discharge. The right of the accused, under such circumstances, to 'have the judgment follow the verdict, if formal and agreeable to the issues submitted, is absolute. The impoteney of the trial court or the judge presiding, at the instance of the state, to nullify a verdict, responsive to the evidence and issues, which accords the accused the suspended sentence is supported, it is thought, by the cases mentioned above and by the principles governing the decision of this court in the case of Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 114, in which the original suspended sentence law conferring upon the trial judge authority inconsistent with the finality of a verdict of the jury was denounced. The power of the judge to annul a verdict under the circumstances disclosed by the present record is, in the opinion of the writer, in conflict with various decisions that have been rendered by this court upon the subject, save those which have been expressly overruled in the Champion Case, supra. From that case, in addition to the quotation hereinabove mentioned, the following is taken from the concurring opinion of Justice Hawkins: “I believe the opinion of the majority of the court in Bessett v. State, 78 Tex. Cr. R. 110, 180 S. W. 249, 251, is erroneous. I am in full accord with the dissenting opinion of Judge Davidson in that case to the effect that a trial judge may not receive a verdict which as a part thereof recommends a suspended sentence and then enter a judgment which ignores such ree- , ommendation. It should be understood that Barnett v. State, 74 Tex. Cr. R. 619, 170 S. W. 143; Whitley v. State, 103 Tex. Cr. R. 413, 281 S. W. 544; Hemby v. State, 105 Tex. Cr. R. 126, 286 S. W. 1099; Bessett v. State, supra; and all other cases which hold or intimate to the contrary are expressly overruled. I am of opinion, however, that where a verdict is returned which recommends a suspended sentence, in the absence of the submission of that issue to the jury, two courses are left open to the trial judge; he may retire the. .jury fpr them to correct their verdict, or he may with their consent make the correction before receiving it.”

In the present instance, the verdict was formal and was responsive to the issues, and was received by the court. The jury was discharged. Thereafter the court entertained the motion of the state, and, upon evidence not introduced upon the trial, changed a verdict rendered in so far as it was in favor of the accused, and to give it effect in so far as it was favorable to the state. As viewed by the writer, it was the judge who made the verdict rather than the jury in whom the • power was vested and upon whom the duty was imposed. In the opinion of the writer, it is the duty of this court to accord the accused the benefit of the verdict which was rendered by the jury and to set aside the judgment founded upon that rendered by the judge upon evidence heard after the verdict of the jury had been received and the jury discharged. The sentence is set aside and the judgment is reformed so as to embrace the verdict rendered by the jury and to condemn the accused to confinement in the penitentiary for a period of not less than two nor more than five years, with the proviso that the sentence be suspended in accord with the provisions of article 776, C. C. P. 1925.

It is ordered that this corrected judgment be certified to the district court of Bee county, with direction to enter judgment as corrected, and that the appellant be released upon his entering into recognizance as required by article 776, supra.


text:
    JOHNSON v. STATE.
    No. 14319.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Kirby, King & Overshiner, of Abilene, 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 two years.

A search of appellant’s residence and automobile resulted in the finding of three gallons of whisky. 'There was testimony that appellant had sold intoxicating liquor.

Bill of exception No. 7 presents the following occurrence: After the district attorney had developed the state’s case, he discovered that he had not read the indictment. Receiving permission of the court, he read the indictment to the jury, and appellant entered his plea of not guilty thereto. After the indictment had been read, no*other testimony was introduced by either side, except the testimony of one state’s witness. The testimony of this witness was subsequently withdrawn from the consideration of the jury. The district attorney at no time offered to reintroduce the testimony. Appellant offered no testimony. In a motion in arrest of judgment, appellant called the court’s attention to the fact that the district attorney at no time reintroduced the testimony after reading the indictment. In Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927, 930, the authorities touching the necessity for complying with subdivisions 1 and 2 of article 642, C. C. P., requiring that the indictment or information be read to the jury by the attorney prosecuting and the pleas of the accused entered, were discussed. In reviewing the authorities holding that these provisions of the statute were mandatory, Judge Ramsey said:

“The indictment is the basis for the prosecution. Among other things, its office is to inform the appellant of the charge laid against him, and one of the purposes of the requirement that it shall be read to the jury at the beginning of the prosecution is to inform them in precise terms of the particular charge laid against the defendant on trial. His plea thereto makes the issue. While it may be thought that this ground of objection is in its nature quite technical, it is, nevertheless, the right of every defendant to have the charge read against him and to have his plea entered therein. Such is the express provision of our statute, and this right has been recognized time out of mind by all the decisions of this court. It is of such a substantial nature that in all the decisions of this court it has been treated and regarded as mandatory. That it can be waived is well established, but such a waiver cannot be inferred ; but in a case where the statute has been disregarded the burden rests upon the state to show such conduct and acts upon the part of the defendant as may, in fairness, be treated and regarded as a waiver. In a case involving life and death, it is always unsafe to depart from that order, of procedure established by law in this state. This, it clearly appears, was done in this case. No reason is given why it was so <jone, except as we may infer that the failure ,to follow the statute was the result of mistake, or inadvertence. When discovered, the error was not cured by the reintroduction of the testimony, or. any offer so to do; and under the rule obtaining in this state for all these years the failure to observe this mandatory provision regulating the conduct of trials must be held, as we do now hold it to be, in itself violative of his rights and hurtful to his interest.”

See, also, Theriot v. State, 89 Tex. Cr. R. 428, 231 S. W. 777.

Until the indictment was read and appellant’s plea entered, no issue was joined between the state and appellant. Wengenroth v. State, 107 Tex. Cr. R. 78, 294 S. W. 554, and authorities cited. As said by Judge Henderson in Hearne v. State (Tex. Cr. App.) 58 S. W. 1009, “There was no case before the jury until the indictment was read- and the plea of not guilty entered.” When the indictment was read and appellant pleaded thereto, the evidence should have been reintroduced. As the matter appears in the record, the failure to reintroduce the evidence after the indictment had been read was made an issue in the trial court.

The judgment 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. LATTIMORE, J.

text:
    ROBINSON v. STATE.
    No. 14300.
    Court of Criminal Appeals of Texas.
    June 10, 1931.
    Appeal Reinstated Oct. 7, 1931.
    Rehearing Denied Nov. 4, 1931.
    Gordon M. Burns, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

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

The state’s attorney with this court calls our attention to the fact that the record contains no notice of appeal. Appellant’s motion for new trial was overruled on November 21, 1930, and there is no statement connected therewith giving notice af appeal. Neither do we find -anything relative to this subject in the sentence, where sometimes such notice appears. Attention is also called’to the fact that the bills of exception and statement of fáets were filed too late, but in view of the jurisdictional question raised this proposition will not be passed upon.

Because of the absence of the statutory requisite of notice of appeal properly given and entered -of record. (Code Cr. Proc. 1925, art. 827), the appeal will be dismissed.

On the Merits.

MORROW, P. J.

Because of correction of the record the-appeal is reinstated.

Manse Robinson, husband of the appellant, was shot and killed. They were alone in their home at the time. They had been married for some six years; lived together part of the time and were separated part of the time. In the evenihg-before her husband came home, she went to a party. She returned in company with her cousin, a negro. According to her version, after her cousin departed, her husband began to quarrel, set fire to her dress, and threatened to kill her with a pistol'. In setting fire to her dress he laid the pistol down. She seized it. During the struggle which ensued over the. possession of the pistol, it fired and the deceased was killed. The seizure of the pistol was for her self-protection, and the shooting was accidental. The appellant feared the deceased, as. he had on former occasions threatened to kill her. After the shooting, she called, her neighbor, Lucille Green, who testified that after hearing two pistol shots, she was called by the appellant. Upon entering the house the witness observed the' deceased lying on the floor in his underclothes, apparently dead, and the appellant stated that she had killed him.

A sister of the deceased testified that after the funeral the appellant said: “Ves, I killed your brother and I will kill you.”

The complaint that in his address to the jury the state's counsel misquoted the evidence is untenable, as there is no certificate of the trial judge that the evidence was misquoted.

-The testimony- of the appellant that she acted in self-defense is not conclusive upon the state. Hawkins v. State, 99 Tex. Cr. R. 569, 270 S. W. 1025; Koch v. State, 110 Tex. Cr. R. 405, 10 S.W.(2d) 545.

in part, the alleged newly discovered evidence is a declaration by Beatrice Robinson made to the appellant in a conversation with her. Her presence at the time the declaration is charged to have -been made seems conclusive against-the contention that the evidence-was newly .discovered. The proffered new testimony of Allen, the justice of the peace, and Jones, that they examined the premises and witnesses immediately after the homicide and reached the conclusion that it was accidental, apparently would be mere conclusions of the witnesses, and its-admissibility is not perceived. The alleged new testimony of the witnesses mentioned, to the effect that at the time of their visit to the body of the deceased at his home the appellant declared that the killing was accidental growing out of a struggle over a pistol, apparently could not be newly discovered for the reason that the declaration, if made, was known to the appellant. The right to a new trial upon newly discovered evidence is controlled by subdivision 6 of article 753, C. C. P., which, as construed, requires that a verified motion must show that the evidence came to the knowledge of the defendant since the trial; that failure of its previous discovery was not due to want of diligence; - that upon another trial' there would probably be a different result ; that the evidence was competent on an issue material to the merits of the ease and not merely cumulative. See Vernon’s Ann. Tex. C. C. P., 1925, vol. 3, p. 13, note 25. In many particulars the requisites mentioned are wanting in the motion under consideration.

In view of the record we are not prepared to say that the verdict of the jury was unsupported by the evidence.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In our original opinion we said that the complaint of argument was untenable -because there was no certificate of the trial judge attached to the bill of exception certifying that the evidence referred to, and quoted by the district attorney in said argument, was misquoted. Appellant insists that we were in error in so holding. The original bill of exception presenting the complaint is attached to the motion, and is in form exactly as same appears in bill of exception No. 1 in the transcript. The trouble with said bill is that, while it sets forth what the district attorney said to the jury, and the objection made thereto by appellant’s counsel, viz., that there was no such testimony in the record, still said bill makes no other showing of the fact that thpre was no such testimony before the jury. The subject is treated at length in sections 261-263 of 4 Texas Jur., where are cited Poteet v. State, 112 Tex. Cr. R. 466, 17 S.W.(2d) 46; Uhl v. State, 112 Tex. Cr. R. 185, 15 S.W.(2d) 615; Kirk v. State, 111 Tex. Cr. R. 388, 13 S.W.(2d) 106; Smith v. State, 104 Tex. Cr. R. 616, 286 S. W. 223; Murff v. State, 103 Tex. Cr. R. 617, 281 S. W. 1076; and many other cases of similar import. It seems plain that the- approval by the trial judge of a bill of exception merely setting out the objections to a stated argument would be nothing more than the certificate of the judge that such objections were made. In addition to stating that the objection was made on this ground, the bill should go further and state that no such evidence was in fact in the record.

Nor can we agree that the testimony in this case was insufficient. Appellant came home from a party in the nighttime with a man other than her husband, who apparently was at home and in bed. In a short time shots were heard. The husband was found mortally wounded. Appellant admitted the killing. At' the time she made no claim of self-defense, but said that she did not know why she shot him. It was in proof that at once after the shooting she called a number of times the name of the man who took her home from the party; also, that deceased was in a good humor when appellant got to her home that pight; also, that a fresh bullet hole in the wall was discovered later to be covered by a piece of pasteboard stuck on with gum; also ⅛ a conversation with a sister of deceased after the killing appellant said she had killed him and would kill her. True, appellant testified on this trial that she shot in self-defense, but the jury had the right to reject her testimony and take into .consideration the manner of her testimony together with other facts and circumstances to arrive at the conclusion that she was guilty.

The motion for rehearing will be overruled..


text:
    MEADOW v. STATE.
    No. 14317.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    . Thomas S. Christopher, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of chickens; the punishment, confinement in the penitentiary for 18 months.

As disclosed by bill of exception No. 1, appellant filed his applicátion for a change of venue, wherein it was alleged that, there existed in Dawson county so great a prejudice against appellant that he could not obtain a fair and impartial trial. When the state filed its controverting affidavit, the court called upon appellant to offer his testimony ip suppo.rt of the application. Instead of introducing his proof, appellant’s attorney requested the court that the hearing on the application be deferred for a reasonable time in order that witnesses might be summoned. In connection with his request, appellant’s attorney testified that he had not been employed in the case until 8 o’clock on the morning of the trial, and that he had immediately prepared an application for change of venue and secured the' affidavit of two credible persons in support of said application. The court’s qualification appended to the bill ’ of exception reads as follows: “When appellant’s application for change' of venue was presented at 9 o’clock a. m. the district attorney stated that he desired to file controverting affidavits, and the court then asked counsel for appellant if they were ready to proceed. They stated they were not as they would have to see about witnesses, that they had not summoned witnesses and did not state the name of a single witness whom they expected to procure at any time to testify in behalf of the application. The court, the district attorney having stated he would file a controverting affidavit, waited on him to. prepare same until about 11 o’clock a. m. At that time counsel for the defendant were in the same attitude as they were at 9 o’clock and when the court told them that if that was their attitude in the matter that their motion would have to be overruled, they stated they had no idea that same would be overruled, and when told by the court he was not then overruling it but merely stating to them to proceed they again reiterated they had no witnesses and would have to see about procuring them, still giving no names of witnesses by whom .they expected to prove anything, but in fact,’ as it appeared to the court, merely stating that if the court would wait on them they would ascertain whether they could find anybody who would testify in behalf of their application, whereupon the court overruled same.”

Appellant did not except to the qualification, and we are bound to consider it in appraising the bill 'of exception. If we comprehend the bill as qualified, appellant did not know of any witnesses who would support the allegation of prejudice. He desired, in the event the court accorded him the opportunity, to make an investigation in order to determine whether there were witnesses in the county who would testify in support of his application. Appellant at no time made application for witnesses, although he had two hours from the time of presenting his application until it was considered in which to request that process be issued. As the matter is presented, we are constrained to hold that the bill of exception fails to reflect error.

Bill of exception No. 2 presents the following occurrence: In his argument to the jury the district attorney used language as follows: “I want to discuss with you another portion of the court’s charge wherein he instructs you that there are matters which you must not consider in any way; you must not mention, that you must not talk, that y.ou must not allude to or even think of.”

The qualification appended to the bill of exception shows that, after making the foregoing remarks, the district attorney read that part of the court’s charge in which the jury were instructed that they could not consider the failure of the defendant to testify. It is recited in the qualification that the district attorney made no comments whatever upon the charge. The opinion is expressed that the trial court was warranted in overruling appellant’s objection. The mere reading of the charge of the court did not constitute an allusion or reference to the failure of appellant to testify. In Wimberly v. State, 109 Tex. Cr. R. 581, 6 S.W.(2d) 120, 121, it appears that the district attorney, in his closing argument, used language as follows: .“The defendant in a criminal case has every right guaranteed to him, and is given the benefit of the presumption of innocence and the reasonable doubt; he is not required, and cannot be required, and cannot be com•■pelled, to take the witness stand and testify as a witness in his own behalf.”

In holding that the language of the district attorney, in the connection in which he used it, was not a reference to the failure of the appellant to testify, Judge Lattimore used language as follows: “It is customary for trial courts to instruct the jury that the accused does not have to testify, and that his failure to testify cannot be taken as a circumstance against him, and it has been held that the attorney for the state in his argument, who reads that portion of the court’s charge, and makes no comment upon it, commits no reversible error. Unless something should appear in the statement made from which this court might conclude that the language used was such as to induce the jury to consider against the accused the fact that he did not testify, we would not be inclined to hold such action reversible error. The statement made by the district attorney in this, instance was in almost the exact language used by the court in the charge, and it does not appear to have been made with any sort of purpose of calling the jury’s attention to the fact, or in any wise using it against the accused. We do not believe the action amounted to more than a casual reference.”

See, also, McPhail v. State, 114 Tex. Cr. R. 635, 26 S.W.(2d) 218; Boyd v. State, 114 Tex. Cr. R. 160, 21 S.W.(2d) 733.

As shown by bill of exception No. 3, the district attorney,' in his closing argument to the jury, used language as follows: “I want to tell you there is positive testimony corroborating the testimony of Jack Rancher and that his testimony is legitimately before this jury for if this court had not known that there was positive testimony corroborating the witness Rancher he would have given you a charge on circumstantial evidence, and he did not give you a charge on circumstantial evidence, not one single line in this charge regarding circumstantial evidencewhich shows that the court knew there was positive evidence corroborating .the witness.”

Appellant objected to this argument on the ground that it left the impression upon the minds of the jury that the trial judge believed and knew that there was positive testimony corroborating the accomplice witness. The court overruled the objection, and declined to instruct the jury not to consider the statement. Appellant offered no written charge withdrawing the remarks. The argument was not proper. The accomplice witness testified that he was with appellant when he stole the chickens, and that he and appellant went to the chicken house of the injured party and carried the chickens away. The fact that the only direct testimony came from the' accomplice did not make it necessary to charge on "circumstantial evidence. Branch’s Annotated Penal Code, § 1874; McKinney v. State, 48 Tex. Cr. R. 402, 88 S. W. 1012. In determining the effect of the argument, it is proper to look to the facts and circumstances in evidence. Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 9 S.W.(2d) 358, 60 A. L. R. 290. Looking to the record, we find that the uncontroverted evidence of guilt is plain. The stolen chickens were discovered in appellant’s garage the day after they were taken. Mr.'. Craddock, the owner of the chickens, positively identified the chickens as being his property. On the day the chickens were stolen, appellant and Jack Rancher, the accomplice witness, were seen by witnesses in appellant’s automobile about two miles from the scene of the theft with Some chickens in the car. The accomplice witness testified that he and appellant stole the chickens and placed them in appellant’s garage. Appellant offered no testimony. We think it is clear that the argument . could not have contributed to the assessment of a penalty in excess of the minimum. The evidence of guilt being plain and uncontradicted, the opinion is expressed that we would not be warranted in predicating a reversal of the judgment upon the remarks under consideration.

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.


author: HAWKINS, J. LATTIMORE, J.

text:
    SMITH v. STATE.
    No. 14071.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Rehearing Denied Nov. 4, 1931.
    Crane & Hartwell, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to murder, punishment being assessed at two years’ imprisonment in the penitentiary. Our state’s attorney calls attention to the recognizance entered into pending appeal, a defect in which makes a dismissal necessary.

The' recognizance in question departs materially in verbiage from that prescribed by article 817, C. C. P.; notwithstanding that, it might be held good were it not for its failure to require appellant “to abide the judgment of the Court of Oriminal Appeals of the State of Texas.” In lieu of the requirement just quoted, the present recognizance makes the appearance of appellant in the court below “subject to notice of appeal in the Oriminal Court of Appeals at Austin, Texas.” -We cannot regard such language as substantially complying with article 817, C. C. P. Nowhere in the present recognizance does appellant bind himself to abide the judgment of this court.

Many cases upon the point will be found collated in the notes under article 817, Vernon’s Ann. Tex. C. O. P. yol. 3.

If appellant should desire to further prosecute his appeal, he may have fifteen days from this date to file in the court below and bring to this court a bail bond pending appeal as required by article 818, O. O. P.

The appeal is dismissed.

On Motion to Reinstate Appeal.

LATTIMORE, J.

The appeal in this case was dismissed at a former day of this term because of a defective recognizance. Appellant moves to reinstate the appeal, accompanying his request with a certified copy of a recognizance which seems to have been entered into on October 17, 1931. The trial term of the court below ended August 29, 1930. Under statutory prescription a recognizance entered into after the adjournment of the trial term is a nullity. Kogar v. State, 110 Tex. Cr. R. 636, 10 S.W.(2d) 546; Johnson v. State, 101 Tex. Cr. R. 561, 275 S. W. 1036; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105. Article 818, C. C. P., provides for the giving of an appeal bond where there is a failure to enter into a recognizance during the trial term of the lower court.

The motion to reinstate the appeal wiil be refused.


author: OALHOUN, J.

text:
    FREDERICK et al. v. STATE.
    No. 14678.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    L. E. Eason, of Beaumont, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   OALHOUN, J.

The offense is theft; the punishment, confinement in the penitentiary for two years.

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.


text:
    FREDERICK et al. v. STATE.
    No. 14679.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    L. E. Eason, of Beaumont, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the'punishment, confinement in the penitentiary for two years.

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.


text:
    WILLIAMS v. STATE.
    No. 14764.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    T. R. Florey, Jr., of Mt. Pleasant, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for four years.

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.


author: CHRISTIAN, J. ■

text:
    WILLIAMSON v. STATE.
    No. 14690.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J. ■

The offense is passing a forged instrument; the punishment, confinement in the penitentiary for two years.

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.


text:
    WILLIAMSON v. STATE.
    No. 14691.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is theft; the punishment, confinement in the penitentiary for two years.

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.


text:
    GATSON v. STATE.
    No. 14774.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Truman Warren, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus'tin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

No sentence appears in the record. This court is without jurisdiction, in the absence of sentence.

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.


text:
    BRITON v. STATE.
    No. 14704.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    J. Franklin Spears, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

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 CURIÁM.

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:
    BRITON v. STATE.
    No. 14703.
    Court of Criminal Appeals of Texas.,
    Oct. 21, 1931.
    J. Franklin Spears, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

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.


text:
    ALFORD v. STATE.
    No. 14754.
    Court of Criminal Appeals of Texas.
    Oct. 21. 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is selling intoxicating liquor; 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.


text:
    HOLLAND v. STATE.
    No. 14756.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one. year.

The recoid 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.


text:
    PILGRIM v. STATE.
    No. 14763.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Wills & Wills, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is carrying a pistol; the punishment, confinement in jail for 90 days.

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.


text:
    CRAWFORD v. STATE.
    No. 14662.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is forgery; penalty assessed at confinement in the penitentiary for a period of five years.

It has been made known to this court by the affidavit of the sheriff of Jasper county that the appellant escaped from custody on the 16th of May, 1931, and did not voluntarily return within ten days. By reason of such escape this court is deprived of jurisdiction of the appeal. See article 824, C. C. P.

The appeal is ordered dismissed.


author: LATTIMORE, J.

text:
    CRAWFORD v. STATE.
    No. 14663.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for forgery; punishment, five years in the penitentiary.

We find filed with this record an affidavit made by the sheriff of Jasper county, Tex., the county in which the conviction was had, stating that pending this appeal the appellant escaped from custody and has not voluntarily returned. Under the law this necessitates a dismissal of the appeal, and it is accordingly so ordered.


text:
    SMITH v. STATE.
    No. 14753.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is manufacturing intoxicating liquor; 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.


author: BARCUS, J.

text:
    POCHYLA v. CRALLE et al.
    No. 1082.
    Court of Civil Appeals of Texas. Waco.
    Oct. 1, 1931.
    Rehearing Denied Oct. 29, 1931.
    S. J. T. Smith, of Waco, for appellant.
    R. C. Cralle and Ira Lawley, both of Groes-beck, for appellees.
   BARCUS, J.

In July, 1926, appellant by warranty deed granted and conveyed to J. K. Stroud and ap-pellee R. M. Cralle, 1,265 acres of land in Hamilton county, less 185½ acres sold to Albert Wenzel, the deed containing the recitation that “it is the purpose of this deed to convey the entire acreage herein stated, except the 185-½ acres deeded to Albert Wen-zel, making the acreage conveyed in this deed to grantees, 1079-½ acres,” and then described the entire tract by metes and bounds. The deed from appellant to Albert Wenzel referred to in the deed to appellee Cralle described the 185½ acres by metes and bounds, and then recites that in addition thereto it granted and conveyed to Wenzel an easement for the purpose of ingress and egress across the remaining portion of appellant’s land, so that Wenzel could-reach the highway.

In August, 1927, J. K. Stroud by warranty deed granted and conveyed to appellee Cralle his undivided half interest in the 1,079½ acres which he and Cralle purchased from appellant in July, 1926.

Appellee Cralle instituted this suit to recover from appellant and J. K. Stroud $750 damages which he alleged he had suffered by reason of the easement which appellant had sold Wenzel across the land which he, Cralle, purchased from appellant and appellee Stroud; his contention being that the easement was an incumbrance upon his title, and that; since appellant had given a warranty deed containing the implied covenants set out in article 1297 of the Revised Statutes, he was entitled to his damages. He alleged that the land taken by virtue of the easement was 15 acres, which was of the value of $750. In the alternative, he alleged that, if he was not .entitled to the value of the land taken, the market value of the entire tract of land by reason of the easement was diminished to the amount of $750.

Appellee Stroud filed cross-action against appellant, asking for judgment against appellant for whatever amount appellee Cralle might recover against him. The cause.was tried to the court and resulted in judgment being entered for appellee Cralle for $375 against appellant, and for the same amount against appellee Stroud, and a "judgment in favor of Stroud against appellant for $375.

There was no testimony offered as to the value of the land actually taken for the use of the easement. The cause was submitted to the jury, and judgment rendered by the trial court evidently on the theory contained in appellees’ pleadings that the entire tract of land had been depreciated in value by reason of said easement. The only testimony on the measure of damages was given by the witnesses John Richards and appellee Cralle. Richards testified: “The exercise and use of the right-of-way or easement across the land would damage same something like a thousand or fifteen hundred dollars.”

Appellee Cralle testified: “The value of the use and enjoyment of the land by me was diminished something like $1200.00 by reason of the easement.”

Appellant objected to tbe above testimony of Richards and Cralle, for the reason that it was not the proper measure of damage and called for a conclusion of the witnesses and invaded the province of the trial court, and was irrelevant and immaterial. The trial court overruled said objections, and appellant, by various assignments and propositions, presents the action of the trial court as error. We sustain these assignments, in so far as they relate to the proper measure of damage. In cases of this character, the proper measure of damage is the difference in the value of the land at the time of purchase without the easement, and its value with the easement. 15 C. J. 1328, § 234, 7 R. C. L. 1182; 8 Am. & Eng. Enc. (2d Ed.). 179. Clearly, appellee would not be entitled to what he thought the use of the land to him had been damaged.

Appellant contends that there is no evidence in the record tending to show the difference in the value of the land at the time same was purchased with the easement and what it would have been worth without the easement, and that the judgment of the trial court is therefore without support in the evidence. We sustain this contention. The only testimony offered relative to the value of the land at the time of the purchase was the recitation in the deed stating that appellee paid $14,976.85 in cash and executed notes for $12,-155.65, and assumed notes aggregating $10,-650. Appellee Cralle testified that the recitation in the deed as to the consideration paid was correct, except that the cash consideration named was an exchange of land rather than the payment of any cash. There was no evidence offered as to the actual value of the land given in exchange. None of th.e witnesses stated what the value of the land was or would have been at the time of purchase without the easement. Neither was there any testimony offered as to what the land would have been worth at the time same was purchased with the easement thereon.

During the trial-of the cause, appellant offered to prove by Mr. Haney, the real estate man who negotiated the sale, and by himself, that at the time of the sale appellees were notified of the fact that the deed to Wenzel contained the easement, and that he (appellant) was only selling to them, and that appellees were buying, the land in controversy burdened with said easement. The trial court excluded this testimony on objection of appellees on the ground that it tended to alter, vary, and contradict the terms and covenants of the written deed from appellant to appellees.

Since appellant did not plead that the property conveyed to appellees was not correctly described in the written deed, said testimony was properly excluded. If the description contained in the deed by accident, mistake, fraud, or oversight, failed to describe the land actually sold by appellant and purchased by appellees, then, under appropriate-pleadings, the excluded testimony would be admissible.

The courts hold that the statutory covenant of warranty contained in a deed only binds the grantor for the land actually sold, whether same is accurately described in the deed or not. Hannes v. Scholz (Tex. Civ. App.) 120 S. W. 1056; Meade v. Jones, 13 Tex. Civ. App. 320, 35 S. W. 310; Laufer v. Moppins, 44 Tex. Civ. App. 472, 99 S. W. 109; Weir v. McGee, 25 Tex. Supp. 21.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded.


author: ALEXANDER, J.

text:
    DALLAS RY. & TERMINAL CO. et al. v. SMITH et al.
    No. 1143.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1931.

      Worsham, Rollins, Burford, Ryburn & Hincks, W. B. Handley, Allen Charlton, and 0. J. Shaeffer, all of Dallas, for appellants.
    McCormick, Bromberg, Leftwich & Car-rington and L. O. Huvelle, all of Dallas, for appellees.
   ALEXANDER, J.

This was an action brought by Mrs. Gladys Smith, joined by her husband, against the Dallas Railway & Terminal Company, and Houston H. Nichols and L. L. Nichols, a firm operating under the name of Nichols Auto Rent Company, for injuries alleged to have been sustained by Mrs. Smith by reason of her having been struck by a street car operated by the Dallas Railway & Terminal Company and a taxicab operated by Nichols Auto Rent Company. A trial was had before a jury and resulted in a verdict and judgment for the plaintiffs against the defendants, jointly and severally, in the sum of $4,000. All defendants have appealed.

Counsel for the plaintiff opened the argument of the case, and at the conclusion of his argument the case was submitted to the jury without argument on the part of the defendant. The appellants complain of the argument of counsel for the plaintiff before the jury. The argument complained of was in part as follows:

“If they (the street ear company) have done •this woman a great wrong and caused her to suffer from this injury, as man to man I ask you to make them pay, and pay, and pay, as they have made her suffer. I don’t believe there is one of you here who would see one of your own folks in an accident of that kind, yes, your own wife, but would feel you were entitled to pay, some compensation in money —there is no sufficient money in this world to cure and heal an injury of this sort. But you need not get that small I am sure, nay, I would not go through it for fifty thousand or a hundred thousand, and I don’t believe you would, gentlemen.”
“Now then, we get into the great question of what would compensate them for the injuries sustained by Mrs. Smith. That is another proposition, take it to your home, men, take it to your home.. What would compensate you if your wife went through what this liffle woman has gone through? There is no doubt that she has been injured and seriously injured, and has suffered and will suffer and continue to suffer. Give us what you think you would want your wife to have— what you think you would be entitled to.”

The above argument was an appeal to the prejudice of the jury and calculated to induce the jury to abandon their position as fair and impartial jurors and to assume the position of a partisan or claimant in the case. The jury was told to give the plaintiffs, not what would reasonably compensate her for the injuries sustained, as directed in the court’s charge, but what they would want or think they were entitled to if they were the plaintiffs in the case. This was an appeal to the jury to apply an improper measure of damages contrary to that given in the charge. Such argument was unwarranted and calculated to prejudice the rights of the appellants. Brown Cracker & Candy Co. v. Castle (Tex.Civ.App.) 26 S.W.(2d) 435.

It has been held that where the argument is calculated to injure the rights of the complaining party and there is reasonable doubt of its harmful effect,, the case must be reversed and the burden is not on the appellant to show that his rights were in fact prejudiced. Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765.

Counsel for the plaintiff in his opening argument further said:

“We are at a disadvantage in trying this case many months after the injury has occurred, and nature has healed her condition, apparently, on its face, but do not forget that she is internally and permanently and seriously injured, in that she may never get over it. You have heard of various doctors turning out soldiers from the hospitals after the war, presumably and apparently upon their face well, and you have heard and read in papers months and years later where they have been returned to the hospital and where they probably died from the original injury received during the war; an injury that— who knows wha’t this will bring upon Mrs. Smith in later years?”
“You all know that between there Elm Street on Elm or off side, we have five thea-tres, and'at night that is a very busy place. Thousands of people cross at Stone Street coming and going from the theatres. It is a passageway that the street cars and taxicabs should take notice of and respect the life of human beings who have a right to be on the street, as well as they. But, no, they have got to the point where they believe they own the street because they make their living on the street, and you as pedestrians have no rights. Just think of it. Two of the most reckless and dangerous instruments that travel our thoroughfares — the one man street car and a taxicab coming from opposite directions and entrapping this woman.”

The above argument placed before the jury information to the -effect that government physicians had turned out soldiers as being in sound health who were in fact in unsound health, and thus raised the inference that the medical witnesses who had testified in this case had made a similar mistake. There was no evidence in the record that the government physicians had made such mistakes and such evidence, if it had been offered, would have been Inadmissible. Yet, counsel was allowed to introduce such evidence by his own un-sworn, ex parte statement. Neither was there any evidence that there were five theaters located near the scene of the accident and that thousands of people crossed the street at the place of the accident coming and going from theaters. This argument was improper. Brown Cracker & Candy Co. v. Castle (Tex.Civ.App) 26 S.W.(2d) 435.

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


text:
    ATWOOD COTTON BREEDING FARMS v. MIDWAY FARMERS’ CO-OPERATIVE SOC.
    No. 890.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 25, 1931.
    Rehearing Denied Oct. 16, 1931.
    A. R. Stout, of Ennis, for appellant.
    Carl Rountree and Philip Yonge, both of Bamesa, for appellee.
   LESLIE, J.

The appellee, Midway Farmers’ Co-operative Society of Dawson county, Tex., a corporation, plaintiff in the trial court, brought ■this suit against the appellant, Atwood Cotton Breeding Farms of Ellis county, Tex., a corporation, alleging in substance that, on or about February 1, 1930, appellee purchased in Dawson county, Tex., from the appellant, 600 bushels of cottonseed, and agreed to pay therefor in Lamesa, Tex., $1,-410 upon delivery, freight prepaid; that the seed were understood to be for planting purposes, and were to be free from cockleburs and other foreign substance rendering them unfit for the ■ purposes intended; that the seed were shipped to Dawson county, consignee shipper’s order, notify Midway Farmers’ Co-operative Society, bill of lading with draft attached for the amount of the contract price of the seed; that the appellee paid the draft in Dawson county, Tex., and there received the bill of lading, as well as the title and possession of the seed. Said draft, bill of lading, etc., carried proper in-dorsements . and transfers from the shipper to the purchaser.

It was further alleged that the seed were to be state Certified Texas Special Field Culled Kasch cottonseed, and to conform to certain standards of quality, but that, after they were paid for and received, it was ascertained that the appellant had failed to carry out the contract and that the seed were of a quality and grade inferior to that contemplated by the contract, and therefore unfit for planting purposes, which rendered the seed worthless to the appellee and entitled it to a recovery of the purchase price, etc., of the seed, or such portions thereof as it was unable to market.'

The appellant filed its plea of privilege in due form to be sued in Ellis county, where the shipment originated. This plea was controverted by the appellee, who set up that the appellant was a private corporation, and that it had made with the appellee a written contract performable in Dawson county, Tex., and establishing the venue of this suit in said county.

At the hearing upon the plea of privilege, the trial judge overruled the same, and this appeal follows.

By various propositions the appellant contends that the venue of this cause should be in Ellis county, the domicile of the defendant. Its various contentions are to the effect that, since the Midway Farmers’ Cooperative Society signed an order for cottonseed which it bought from the appellant, another corporation, subject to acceptance and confirmation of said appellant corporation, and both the written order and written confirmation of said sale, provided that all payments on account of the contract due either “the seller or buyer” were payable in Ellis county, the residence of the defendant; and, since the order and confirmation further provided that the whole agreement was contained therein, and that no oral statement of any agent could vary the same, and in the absence of any pleading or proof of fraud inducing the contract, the trial court should have sustained the plea of privilege and transferred the cause of action to Ellis county. Stated more briefly and in different language, the propositions are to the ■ effect that, since the appellant and appellee agreed in writing that “all amounts due seller or buyer account of this contract are payable at the office of Atwood Pedigreed Seed Farms at Ennis, Texas, at par,” the venue of the suit should have been laid in Ellis county instead of Dawson county, as was done; that, such being the written agreement between the parties, both of which are corporations, the fact that a part of the cause of action, if any, may have arisen in Dawson county, would not and could not be any limitation on the agreement that both parties had the right to mate and did make.

No question of fraud is presented by 'the record, and that phase of the case will not be discussed.

For the purpose of passing upon the issues arising out of the venue question, the plaintiff’s pleadings and the controverting affidavit to the plea of privilege are deemed sufficient as a basis for claiming the venue of the suit in Dawson county under exception 5 to the general venue statute (Rev. St. 1925, art. 1995); that exception being: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.”

From the testimony it appears that the appellee, Midway Farmers’ Co-operative Society, a corporation, signed an order for the cottonseed which it purchased from the appellant, the Atwood Cotton Breeding Farms, another corporation, subject to the acceptance and confirmation of said appellant corporation, and both the -written order and written confirmation of said sale provided that all payments on account of the contract due either the seller or the buyer were payable in Ellis county, the county of appellant’s residence. If this represents substantially the entire, transaction, and the shipment and delivery of the cottonseed had been made in pursuance thereof, there would be considerable doubt as to the correctness of the order of the trial court in overruling the appellant’s plea of privilege, for we find in the original order and confirmation the following language relative to the character of seed and performance of the contract. The seed were to be: “Field Culled Kasch cottonseed at $2.35 per bushel, delivered to me at Rosser, Texas, and Ennis, (Ellis County) Texas, with freight charges fully prepaid to my station. All amounts due seller or buyer account this contract payable at Ennis, Texas.”

From the appellant’s standpoint,, there is nothing else in the contents of the initial order and confirmation that would suggest that the contract of purchase and sale of the cottonseed was anything other than as indicated by these instruments." The testimony shows that the order was developed and agreed upon by negotiations that took place between the agent of the Atwood Cotton Breeding Farms and the, agent of the Midway Farmers’ Co-operative Society, in Dawson county, when the agent of the former called upon the agent of the latter in said county. It was out of such negotiations that the order and confirmation were submitted to the home office of the Ellis county corporation.

However, it further appears from the plaintiff’s pleadings, its controverting affidavit, and the undisputed testimony, that the actual agreement and understanding carried out by the parties, and which resulted in the sale and delivery of the cottonseed, were entirely different to that indicated by the above initial negotiations. What occurred was this: The appellant, Atwood Cotton Breeding Farms, shipped the carload of cottonseed in question to Lamesa, Dawson county, Tex., consignee shipper’s order collect, notify Midway Farmers’ Co-operative Society, and attached to a draft for the purchase price the bill of lading issued by the carrier of the seed. When the draft and bill of lading reached the bank at Lamesa, the appellee, upon being notified, paid the same. By virtue of said instruments, with the seller’s usual indorsements thereon, title and possession of the seed were obtained by the purchaser.

Such a transaction has been many times held to constitute a contract in writing by the seller to deliver to the buyer at destination the subject-matter of the contract, and that suit for a breach of such contract may be brought by the buyer against the seller in the county of destination. Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 961, 60 A. L. R. 672; Berlowitz v. Standley et al., 117 Tex. 362, 5 S.W.(2d) 963; Malone et al. v. Dawson, 117 Tex. 377, 5 S.W.(2d) 965, 60 A. L. R. 665; Seley et al. v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399; Scott & Mayhall v. Lubbock Grain & Coal Co., 113 Tex. 127, 252 S. W. 164.

Tbe shipment baying been thus made, and the purchaser having acquired the bill of lading with proper indorsements, and title and possession to the seed by virtue thereof, it clearly appears that the appellee correctly lays the venue of said suit in Dawson county under said exception 5, and is there entitled to a trial on the merits to determine whether or not the cottonseed received were in fact of a quality inferior to that contracted for, as alleged in the pleadings, and the resulting damages, if any.

The opinion of our Supreme Court in Marcus v. Armer, supra, furnishes the solution to all the material issues presented by the appellant on this appeal. This ■ is the latest and most definite, expression by that court interpreting the legal effect of a bill of lading and draft attached as evidencing a written obligation upon the part of a seller of goods to deliver the same in the county of the purchaser’s residence, and declaring that for a breach of such written contract suit is maintainable in the county of the purchaser’s residence. The opinion also clearly indicates the effect to be given to the original contract or negotiations that, in tbe instant case, preceded the actual consummation of the deal, as evidenced by the shipment and delivery of the seed on bill of lading attached to draft, etc. It is this original purported contract upon which the appellant relies as the contract in writing fixing the venue of this cause in Ellis county. No effect can be given to that contract in determining the issues here presented, in the Marcus v. Armer Case there purported to be such an original contract, and it was oral. .In the instant case it appears to have been in writing. The shipment of goods involved in the Marcus v. Armer Case was in a manner the same as that by which the cottonseed in the instant , case were shipped and delivered. In commenting upon the right of the parties to change the initial contract or understanding ’in such cases, our Supreme Court said: “However, the parties had a perfect right, if they so desired, to change the original contract, and to provide for the cottonseed to be shipped from Bertram in advance of the payment of the full purchase price, and to bind the sellers to deliver the seed at Austin upon payment there of the balance of the purchase money. While the question is one involved in much confusion of thought, we have concluded that we conform to the real intention of the parties, when we construe the shippers’ .order bill of lading and attached sight draft, in this case, as an offer in writing by the sellers, accepted by the buyer, modifying the original verbal agreement so as to make Austin the place of delivery of the cottonseed, and so as to prevent the title to the seed from passing to the buyer until payment of the draft.”

That is exactly what occurred in the instant case, except that the contract in the instant case was in writing, whereas the one in the case referred to was “verbal,” but, if an oral contract can be so modified, as held by our Supreme' Court, we see no reason why a written contract cannot be modified under the same circumstances by a subsequent written contract- relating to the same subject-matter. The written contract by which the seed were delivered to the purchaser in Dawson county simply superseded the initial contract or negotiations made prior thereto. It pertained to the subject-matter, and the parties had a right to make it.

For the reasons assigned, the judgment of •the trial court is affirmed.


author: HALL, C. J.

text:
    HART v. TEXAS EMPLOYERS’ INS. ASS’N.
    No. 3647.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1931.
    Rehearing Denied Oct. 28, 1931.

      L. B. Godwin, of Pampa, and Kimbrough & Boyce, of Amarillo, for appellant.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellee.
   HALL, C. J.

This is a workmen’s compensation case. Hart sued the'appellee insurer to set aside an award of the Industrial Accident Board and to recover compensation for injuries resulting to him while he was employed by the Crescent Carbon Company, alleging that the Carbon Company held a policy issued by the appellee. The ease was dismissed for want of jurisdiction.

He filed his original petition March 17, 1930. Citation was duly issued and served, and was returned and filed on March 21,1930. He alleges that on the 13th day of March, 1930, the Industrial Accident Board made and entered its final ruling, award, and decision, “from which plaintiff duly appealed by filing written notice of intention so to and by filing this suit, all within twenty days of the date of said judgment of said Board.”

• On 'November 10, 1930, the appellee answered by general demurrer and general de-fiial. Thereafter, on December 31, 1930, the appellee filed its verified plea to the jurisdiction, in which it alleges that the final award of the Industrial Accident Board was rendered on the 13th day of March, 1930; that this suit was filed on the 17th day of March, 1930, at which time no notice had been given by plaintiff to the Industrial Accident Board that he would not abide by the board’s award; and it is further alleged that the only notice ever given by plaintiff to the board of his dissatisfaction 'with the award was filed with said board on the 20th day of March, 1930; by reason of which facts the district court had no jurisdiction.

It is held in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, tliat the giving of the notice required- by the statute that the party appealing will not abide by the award of the board is jurisdictional, but it is not held that the giving of such notice prior to the filing of the suit is a jurisdictional prerequisite. The evidence shows that the notice was given and the suit was filed within the twenty days prescribed by statute for giving the notice. We think this was sufficient to give the court jurisdiction. It may be conceded that the statute contemplates that the notice should be given before the filing of the suit, but it does not in express terms require that the proceedings should be taken in this order. The result of the appellant filing the suit before giving the notice is that his action was prematurely brought, but it is said in 1 C. J. 1152: “The premature commencement of an action is not a jurisdictional matter but is one which may be waived as by a failure seasonably to interpose an objection upon this ground and it is ordinarily held that if defendant, without objection, appears and pleads to the merits of the action, he cannot thereafter object that it was prematurely commenced.”

This seems to be the general rule. Anthony v. Smithson, 70 Kan. 132, 78 P. 454; Kleiner v. O’Kelley, 22 N. M. 624, 167 P. 1; Braender Rubber & Tire Co. v. Dueth-Henes Corp., 207 Ill. App. 155; Simmons v. Harris, 7 Baxt. (Tenn.) 325.

The general rule is that, when a suit is prematurely filed, it may be abated' by the filing of a proper' plea in abatement in the due order of pleading; that is, before the defendant has answered to the merits. However, as stated above, the defendant answered on November 10, 1930, by general demurrer and general denial, and did not at any time move to abate said suit because it had been prematurely filed. The filing of an answer had the effect of waiving this defect, and a plea filed subsequent to the filing of the answer would have been too late, and must have been overruled. Duenkel v. Amarillo Bank & Trust Co. (Tex. Civ. App.) 222 S. W. 670. For the same reason the plea to the jurisdiction was also waived because, upon the filing of the suit and the service of the notice upon the board within the twenty days, the district court had jurisdiotion of the subject-matter and of the parties.

As said in 1 Tex. Jur. § 95: “Premature institution of an action is a ground for abating it, tbe objection being raised by verified plea in due order unless tbe fact appears from tbe face of tbe petition. * * '* In tbe absence of a showing of prejudice, it would seem tbat reversible error is not committed in overruling the plea if the objection no longer exists at the time of tbe filing of tbe plea and at tbe time of trial.”

That tbe appellee and tbe board bad tbe Statutory notice cannot be denied, and it is not shown tbat tbe failure, to give tbe notice before filing tbe suit has in any way prejudiced tbe rights of any one. Tbe provisions of tbe Workmea’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.) are to be liberally construed, and, while substantial compliance with its provisions is required, tbe objection urged here is purely technical, and we think tbat the trial court erred in sustaining tbe plea to tbe jurisdiction and dismissing tbe case.

Tbe judgment is therefore reversed, and tbe cause remanded.


author: SELLERS, J.

text:
    TYLER COMMERCIAL COLLEGE v. HESLEP.
    No. 4038.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 25, 1931.
    Rehearing Denied Oct. 1, 1931.
    Butler, Price & Maynor, of Tyler, for appellant.
    Warren, Lasseter & Warren, of Tyler, and Sheffield & Coates, of Helena, Ark., for ap-pellee.
   SELLERS, J.

This suit was instituted in the county court of Smith county, Tex., by tbe appellee against the appellant on September 19, 1930, to recover of appellant tbe sum of $218, being tbe amount of tuition paid by appellee to appél-lant for a business course in its college.

Appellee alleged in bis petition tbat -be paid said sum of money for a business course in tbe appellant college, but tbat tbe appellant refused to permit tbe appellee to complete his course, but, on the contrary, expelled him from tbe institution without reasonable grounds, and that thereby appellant bad breached its contract with appellee.

Tbe appellant answered by general demurrer, general denial, and by specially answering tbat it did not expel appellee from its .college, but tbat it only suspended him for violating the rules of tbe college and was ready and willing to receive him back as a student, provided be would observe tbe rules of tbe college. Tbat it, the appellant, bad offered to accept tbe appellee back as a student to continue bis course in tbe college if and when be would obey tbe rules of tbe college for tbe government of tbe school and student body. Tbat tbe appellee refused to do so, and tbat at no time bad tbe appellee been expelled by tbe appellant.

At the trial of tbe case in tbe county court December 16, 1930, before tbe court and jury, a verdict was rendered in answer to special issues submitted to tbe jury by tbe court, upon which verdict tbe court entered judgment for tbe appellee for tbe sum sued for. Tbe appellant in due time perfected its appeal to this court, and tbe case is now before this court for review.

At tbe close of tbe evidence, the appellant requested tbe court to instruct tbe jury to return a verdict for tbe defendant. Tbe court refused to so instruct tbe jury, and such .refusal is made tbe basis of tbe appellant’s second assignment of error on this appeal, which assignment is as follows': “Tbe appellee sued for tbe refund of tuition in tbe appellant college by reason of having been wrongfully expelled from tbat institution and tbe uncon-tradicted proof having shown that tbe appel-lee was not expelled from tbe college but was simply suspended until be agreed to observe tbe rules for tbe government of the college, there was a fatal variance between tbe allegation and tbe proof and tbe court erred in not giving tbe defendant’s instructed verdict in its favor.”

In tbe light of the record of this case, and especially of tbe testimony of Pope Heslep himself, this assignment will be sustained. It is perfectly clear to this court, and, in fact; uncontradicted in tbe record, tbat appellee was not expelled from appellant college, but at most was only suspended for two weeks for repeated violation of tbe rules governing tbe student body of tbe college, and bad tbe ap-pellee so desired at tbe end of tbe two weeks’ suspension period, or even now, could return to appellant college and continue his studies by simply presenting himself and observing the rules of the college.

Because of the error herein discussed, the judgment of the trial court will be reversed, and judgment here rendered for appellant.


text:
    KATZ v. NIX.
    No. 1149.
    Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1931.
    Rehearing Denied Nov. 5, 1931.
    Tom Whipple and A. D. Emerson, both of Waxahaehie, for appellant.
    J. T. Spencer, of Waxahaehie, for appellee.
   ALEXANDER, J.

. This was an action in damages brought by the plaintiff Rv E. Nix, against the defendant, Joe Katz. The plaintiff owned a lot in the city of Waxahaehie on which there was situated a mule barn. The defendant owned the adjoining lot. The plaintiff alleged that the defendant piled junk iron by the side of and against the barn and caused a change in the flow of the surface water, so that the water flowed under the barn and weakened the foundation, and that the weight of the junk iron pushed the barn off of the foundation. The plaintiff alleged various items of damages. The case was submitted to the jury on a general charge, and resulted in a verdict for the plaintiff for the sum of $125. The defendant appealed.

The appellant complains that the verdict of the jury is unsupported by the evidence. We have examined the record very c'arefully and find that there is ample evidence to support the verdict of the jury. The plaintiff testified to a state of facts which, if believed by the jury, would have entitled him to much greater damage than that allowed by the verdict. It seems to be the appellant’s contention that it was the duty of the jury to either accept or reject the plaintiff’s testimony in toto, and that, since the jury did not allow the plaintiff the full damages shown by his testimony, the court must assume that the jury rejected his testimony, and therefore the verdict is unsupported by the evidence. We do not understand this to be the rule. The credibility' of plaintiff and the weight to be given his testimony was for the jury. The jury had a right to accept plaintiff’s testimony as being true as to a part of the damages claimed by him, and to reject the balance.

The appellant in his brief also complains because the verdict of the jury does- not point out which particular item of damages claimed by the plaintiff and testified to by him was sustained by the evidence. If the appellant desired a specific finding on each item of damages, he should have requested that the case be submitted on special issues.

Finding no error in the record, the judgment of the trial court is affirmed.


author: LEVY, J.

text:
    AMERICAN INDEMNITY CO. v. JAMISON.
    No. 4042.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 20, 1931.
    Rehearing Denied Oct. 29, 1931.

      King, Mahaffey, Wheeler & Bryson, of Tex-arkana, for appellant.
    A. L. Robbins, of Clarksville, for appellee.
   LEVY, J.

(after stating the case as above).

In the appellant’s brief there is raised the two points that: (1) Evidence sufficient to legally establish the market value of the automobile is wanting; and (2) the sum of the recovery is excessive. The adjudication of the amount was based, seemingly, upon the finding of fact that the sedan was practically wrecked by the upset. ■

It is obvious that if the sedan must be regarded as in a state of dilapidation or injured to the extent of being a total loss for all practical purposes, the market value of the automobile at the time of the accident would measure the indemnity payable under the policy, and in such event its actual market value must needs be shown hy competent evidence to prove the fact. The appellee offered, as data for the determination of the market value, evidence, in substance, that he bought the sedan “new” in the latter part of March, 1930, and paid therefor in cash “$1,-030.00,” and that it was not afterward deteriorated by use but was well cared for and carefully used from the date of purchase to the date of the policy of insurance. The accident happened on August 1, 1930, and the insurance policy was dated July 30, 1930. And otherwise than stated, precise evidence bearing upon or going to show the cash market value of the sedan is wanting. Though the price paid by the appellee was not conclusive of the market value, yet was some evidence of that value at the Jilace where the purchase was made, and might be taken into account with other evidence. If, besides showing that he bought the sedan “new” and that it was not afterwards from the date of purchase deteriorated by use, the appellee had gone further and proved, which was not done, that he had bought it in the ordinary course of trade from a regular dealer in such make of automobile, such factual elements, in the absence of other evidence to the contrary, would seemingly suffice to show the present market value of the sedan. 22 G. J. § 140, p. 184, and § 147, p. 186. The applicable general rule is quoted from 3 Sutherland on Damages (3d Ed.) § 654: “When the cost was the price at which a regular dealer in such articles had sold it when new, in the ordinary course of trade, it is evidence of the market value; and if afterwards deteriorated by use, like furniture, its present value can be ascertained by reference to the former price and the extent of depreciation.”

And assuming that the findings should be taken in the view of meaning that the sedan was not a total loss but could be restored to sound condition by the use of new parts in the place of the injured parts, still there would appear no affirmative finding of the cost of such replacements upon which adjudication of the amount could be made otherwise than measured by the value of the sedan. The finding was that the replacement of the new parts “would cost more than the value of the automobile at the time of the accident,” and the value of the sedan was taken as the cost of the replacement of the new parts. The point made by the appellant is controlling of the appeal.

The judgment is reversed, and the cause is remanded for another trial.