author: RYAN, C. CURETON, C. J.

text:
    SOUTHWEST NAT. BANK OF DALLAS v. UNDERWOOD et al.
    No. 4918.
    Supreme Court of Texas.
    Feb. 18, 1931.
    Touchstone, -Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Adams & Harrell, of Dallas, for defendants in error.
   RYAN, C.

H. F. Underwood and W. L. Wood, a-partnership, instituted this suit in the district court of Dallas county, to recover from the Southwest National Bank of Dallas the sum of $3,149.83, with interest at the legal rate from April 1, 1924, deposited by then1 with the bank and by it paid out on forged checks.

The petition charges negligence on the part of the bank, its officers, agents, and employees, in failing to discover said forgeries ■before paying the forged cheeks, and that the losses to plaintiffs, because of the bank’s payment thereof, were due to and directly caused by such negligence.

The bank specially pleaded that the checks were forged by one Andre, plaintiff’s employee, who was in charge of their office, in possession of their books and passbooks, with authority to make deposits, receive' their passbook, monthly statements, and canceled checks from the bank and receipt for same in plaintiffs’ name; that said Andre as plaintiffs’ agent did so receive and, receipt for said statements and canceled checks with their knowledge and consent and by their express authority, all of which led the bank to believe that Andre was their duly authorized agent and representative.

It was further specially pleaded that, if certain sums of money were improperly paid out, it was plaintiffs’ duty to so report to the bank, and, because of their failure to do so, the bank was unable to protect itself against said forgeries, which it would have done had plaintiffs examined such statements within the reasonable time prescribed by the bank’s rules, wherefore plaintiffs are estop-ped to recover the amount of such checks.

The trial court sustained exceptions to that portion of the bank’s answer pleading-negligence and estoppel; the Court of Civil Appeals held that the pleading in question presented a valid defense, and that the trial court erred in sustaining such exceptions, but concluded that, in view of certain facts found by the jury, in their opinion, decisive of the controversy, fhe error was harmless, and this without regard to the issues sought to be presented in the pleading.

The evidence shows that every month, beginning with the statement dated December 31, 1923, and ending with that dated March 31, 1924, Andre called for and obtained the bank’s monthly statement of account and canceled checks, and signed receipts therefor in the name of “H. F. Underwood & Company, by L. C. Andre”; he then withdrew Hie forged checks and placed the others in a letter file in their office; ■ a bank statement accompanied each group of checks.

The jury found, in answer to special issues submitted, that during the period from December 1, 1923, to and including March 31, 1924, the bank paid out $3,149.83 upon checks not authorized by the plaintiffs, Underwood & Co.; that the bank, its officers, agents, and employees, were negligent in failing to discover that said cheeks were unauthorized by the plaintiffs, and that plaintiffs first learned during April, 1924, that the bank had made such unauthorized charges.

The jury further found that the plaintiffs were negligent in failing to discover, prior to the time that they did so discover, that the bank had charged said unauthorized checks to their account; also that it was a rule or custom of the banks in Dallas, including the defendant bank, to deliver statements of their depositors’ accounts to certain employees of said depositors as might call for such statements, but plaintiffs had no actual knowledge of such rule or custom, and had no knowledge of such facts and circumstances as would put men' of reasonable business prudence on inquiry or notice as to the existence of such rule or custom.

The jury further found that the bank’s statements of December, 1923, January and February, 1924, delivered to Andre by the bank, were placed in the files of plaintiffs in their office immediately after they were so delivered, and the failure of plaintiffs to examine said statements directly contributed to the payment by the bank of the checks in controversy.'

The trial court, on such findings, rendered judgment for the plaintiffs Underwood & Co., which was affirmed on appeal by the Court of Civil Appeal^ for the Fifth Supreme Judicial District. 295 S. W. 253.

The bank concedes its liability to the amount of forged checks paid by it until December 31, 1923, but denies liability for any forged checks drawn in the depositors’ name and paid by it after that date, on the ground that it was the duty of Underwood & Co. to examine the returned checks and statements rendered on December 31, 1923, and monthly thereafter, within a reasonable time, and notify the bank, if they questioned the signature, or the authority of Andre to have drawn the checks in question, or the correctness of the account, failure to do which caused the bank to conclude that such checks were authorized, were properly drawn, and had &e depositors’ approval, and such failure was negligence and the proximate and direct cause of the bank having paid such cheeks. The bank therefore contends that (he depositors are estopped from now questioning such payments made after December 31, 1923!

The defendants in error contend that, as the bank’s defense or claim against them as depositors is based on their negligence, they may defeat that claim by showing that the bank was also guilty of negligence; that is,.by showing that the bank was negligent in honoring the questioned checks, in the first instance, and before, the depositors’ negligence in failing to examine the returned checks and statements occurred.

A bank is bound to know the signatures of its customers and cannot charge the amount of forged checks paid ,by it against the account of the depositor whose name was forged unless such payments are properly attributable to the negligence or other fault of the depositor which misled the bank into paying such forged checks. 7 O. J. pp. 683, 688.

Where the bank is negligent in payment of forged checks, it will not be excused merely by reason of the fact that negligence is also1 attributable to the depositor, unless the depositor’s negligence is shown to have been the proximate cause of the conduct of the bank in paying such checks and of the resultant injury to it by reason thereof.

The modern rule is thus stated by the author of. Morse on Banks and Banking (5th Ed.) § 466:

“The point in issue has . sometimes been said to be that of negligence. The drawee who has paid upon the forged signature is held to bear the loss, because he has been negligent in failing to recognize that the hand writing is not that of his customer.
“But it follows obviously that if the payee, holder, or presenter of the forged paper has himself been in default, if he has himself been guilty of a negligence prior to that of the banker,, or if, by any act of his own he has at all contributed to induce the banker’s negligence, then he may lose his right to east the loss upon the banker.”

The bank is liable in any event, for the forged checks paid by it prior to the statement (with canceled cheeks) of date December 31, 1923. The jury found that the plaintiffs below (Underwood & Co.) were negligent in failing to discover prior to April, 1924, that the bank had charged unauthorized checks to their account, that the statements of December, 1923, January and February, 1924, were placed in their files immediately after they were delivered to Andre, and that their failure to examine these statements directly contributed to the payment by the bank “of any or all of said checks in controversy” ; the jury also found that the bank, its officers, agents, and employees, were negligent in failing to discover that unauthorized checks had been paid by it, but this finding is not limited to the period of time after December 31, 1923, but includes all such unauthorized checks, including those paid prior to that date.

If the bank’s officers, before paying forged or altered checks, could by proper care and skill have detected the forgeries, then it cannot receive a credit for the amount of these cheeks, even if the depositor omitted -all examination of his account. Leather Manufacturers’ Nat. Bank v. Morgan, 117 U. S. 96, 6 S. Ct. 657, 29 L. Ed. 811; 3 R.C. L. p. 539.

The depositor’s negligence is immaterial unless it is of a kind that directly and proximately affects the conduct of the bank in the performance of its duties. Jordan Marsh Co. v. Nat. Shawmut Bank, 201 Mass. 397, 87 N. E. 740, 22 L. R. A. (N. S.) 250.

In Weinstein v. National Bank of Jefferson, 69 Tex. 38, 6 S. W. 171, 174, 5 Am. St. Rep. 23, the facts were -that appellant, a depositor in the bank, was absent during the period of the transactions involved in that suit, from December, 1885, to August, 1886, but his business was in charge of his brother, A. Weinstein, as his agent and attorney in fact. On February 27, 1886, and also on June 12, 1886, the cashier of the bank balanced Weinstein’s passbook, and returned all checks which had been paid by the bank up to those dates respectively. In August, 1886, A. Weinstein discovered or claimed to have discovered that a number of checks which had been paid by the bank and charged to his account had been forged. The checks were embraced in the accounts balanced in the passbook and were returned with the passbook when balanced on the dates above named. The bank pleaded a general denial and also, in substance, that plaintiff’s agent having at the dates named received the passbook and checks, and failed to use due diligence to detect and denounce the forgeries, plaintiff was estopped from questioning the correctness of the account. By trial amendment, the hank alleged that, by reason of the negligence and failure to examine and report any errors or forgeries therein, it was debarred the right and opportunity of protecting itself; and, further, that, if the first account had been examined and the forgeries reported, the bank would not have paid the other cheeks alleged to have been forged. A judgment for the bank was affirmed; the court held that a bank is not liable to a depositor for money paid out by it on forged checks if the depositor after receiving a statement of his account, by which he is enabled to ascertain the forgery, neglects to inform the bank thereof in a reasonable time, and thereby if loses the opportunity of recovering the money which it could have secured if promptly informed, it being the duty of a depositor to know whether his account with a bank is correct or not and promptly to report a forgery when detected,- and, should he negligently fail to make the examination and consequent discovery (when he could have discovered it), it is as if he had expressly admitted the genuineness of the checks, and he will not be permitted to deny the fact, provided the bank be prejudiced by his failure. It was further held that an estoppel may be created, not only when the party sought to be concluded knows the material facts he is charged with having represented or concealed, but also when he is in such position that he ought to have known them, so that knowledge will be imputed to him.

Judge Gaines, who wrote the opinion in that case, cited Leather Manufacturers’ Bank v. Morgan, 117 U. S. 96, 6 S. Ct. 657, 29 L. Ed. 811, as sustaining the above views, but does not go to the length of holding that the law would presume that the bank was prejudiced merely by the negligence of the depositor in failing to detect and discover the forgery. Said he: “We are not prepared to say whether such a deduction may be legitimately drawn from it [the opinion in that case] or not; hut, if so, we do not wish to be understood as assenting to that doctrine. We think that is a matter for the jury under appropriate instructions from the court.”

In Eifth National Bank of San Antonio v. Iron City National Bank of Llano, 92 Tex. 436, 49 S. W. 368, the facts were that one Richardson, cashier of the Llano Bank, directed the San Antonio bank to charge the former bank with the amount of two notes owing ■ by Richardson to the latter bank, which was done. At the end of the month, as was shown to be customary among banks, the San Antonio -bank sent the Llano bank a detailed statement of the account between them for the month, as it had done at the end of the previous month, among the items of which appeared the said charge as having been made in payment of Richard-, son’s notes. This statement showed a balance due the Llano bank, which it drew out-a few days afterwards. Subsequently, .the Llano bank brought suit against the San An-; tonio bank to recover such amount, on the ground that Richardson had no authority to direct the application thereof to the payment of his individual notes. The San Antonio bank pleaded that the Llano bank was estopped from denying such authority of its cashier.

' The statement sent as aforesaid was found months afterwards in the vaults of the Llano bank where such papers were usually kept by it, and it had thereon the “O. K.” of its bookkeeper and certain figures by him showing the balance in the San Antonio • bank, which was drawn out as aforesaid.

Judge Denman said in the opinion in that ease: “From these facts the jury might have found that the statement was received by the Llano bank a few days after it was sent. The rule of law is well settled that it became its .duty to examine same within a reasonable time, and notify the San Antonio bank if it questioned the authority of Richardson to have said notes charged to its account, as It appeared from the face of said statement had been done; and that its failure so to do will estop it from denying such authority if such failure has operated to the prejudice of the San Antonio Bank.”

It was conceded that no notice was given until the suit was filed after Richardson had been indicted and became a fugitive from justice, but the opinion, continuing, says that, had the notice been promptly given when the statement was received, the San Antonio bank might have been able (1) ⅛0 show by Richardson that he had the proper authority, or (2) to have by legal proceedings or moral suasion in some measure protected itself against loss.

So here, had the depositor within a reasonable time examined the returned statements and as a result of such examination discovered the forgeries and notified the bank, it could have protected itself, at least to the extent of the future forgeries. Calvin Coal Co. v. Bank (Tex. Civ. App.) 286 S. W. 901.

The majority of the suits brought by depositors to recover payments made on forged or fraudulently altered checks result from the crimes of some trusted employee of the depositor, and usually the court has to deal with a series of successful forgeries. In such eases, after his passbook has been balanced and returned to a depositor with any of the forged or fraudulently altered checks, the authorities practically agree that, in the absence of negligence on the part of the bank, the failure of the depositor to notify the bank within a reasonable time that such checks have been forged or fraudulently altered will, if the delay is caused by his negligence in not using due care and diligence in examining the passbook or statement and vouchers, or in giving notice, if he had discovered the forgeries, and such negligence caused injury to the bank and the latter was thus prejudiced by such failure of the depositor, constitute a defense by the bank to the depositor’s suit for the money subsequently paid out on similar checks. 3 R. C. L., §§ 167 and 168; First Nat. Bank of Richmond v. Electric Co., 106 Va. 347, 56 S. E. 152, 7 L. R. A. (N. S.) 744, 117 Am. St. Rep. 1014; Brown v. Bank, 109 Va. 530, 64 S. E. 950, 17 Ann. Cas. 119. And these are matters for the jury to pass .on under appropriate instructions. Weinstein v. Nat. Bank of Jefferson, 69 Tex. 38, 6 S. W. 171, 5 Am. St. Rep. 23; 3 R. C. L. § 168.

In Critten v. Chemical Nat. Bank, 171 N. Y. 219, 63 N. E. 969, 57 L. R. A. 529, the New York Court of Appeals, while holding that the duty of examining the returned statements and checks and notifying the bank of any forgeries in the drawing of such checks rests upon the depositor, does not accept the doctrine asserted in some of the cases that, by negligence in its discharge or by failure to discover and notify the bank, the depositor either adopts the checks as genuine or ratifies their payment or estops himself from asserting they are forgeries, but does, hold that, if the depositor by his negligence in failing to detect forgeries in his checks and give notice thereof caused loss to the bank, either by enabling the forger to repeat his fraud or by depriving the bank of an opportunity to obtain restitution, he should be responsible for the damage caused by his default, but beyond that, his liability should not extend; that the question was not one of ratification or estoppel but of liability of the depositor to the bank based solely on the loss to the bank caused by the depositor’s negligence.

So that, under either rule, it becomes a question of negligence, whether of the bank or of the depositor, and whose negligence was the proximate cause of the loss. If the depositor was negligent in failing to examine the returned checks and statements and in discovering the forgeries and so reporting to the bank, and such negligence was the proximate cause of the bank’s paying the subsequently drawn checks, and this resulted in injury to the bank, then the depositor must suffer the loss; conversely, if the bank was negligent because it could by proper care and skill have detected the forgeries before paying the' forged checks, and such negligence was the proximate cause of the. loss, then the bank must suffer the loss.

If the bank were negligent, the plaintiffs (depositors) would be estopped from claiming against it, only because their own negligence was directly connected with the forgeries and was the proximate and not remote cause of the bank’s negligence. New York Produce Exchange Bank v. Houston (C. C. A.) 169 F. 785.

Defendants in error cite Coleman Drilling Co. v. Bank (Tex. Civ. App.) 252 8. W. 215, in support of their contention that the bank was negligent in, and therefore liable for, the payment of the forged checks in question and could have discovered the forgeries before payment by the exercise of ordinary care and skill, notwithstanding the depositors’ negligence in failing to examine the monthly statements and discover the forgeries therein.

That case is not authority here. There it was found that, although the plaintiff Coleman was guilty of subsequent negligence in failing to call for and secure his monthly-statements, examine the same and discover the forgeries .among the canceled cheeks, the bank’s employees were primarily negligent in failing to discover the forgeries before payment of the checks. Under such a finding, of course, the depositor’s subsequent negligence was not the proximate cause of the bank’s prior negligence.

It follows, therefore, that the bank’s answer presented a valid defense and the trial court erred in sustaining exceptions thereto. The Court of Civil Appeals erred in holding that such action of the trial court was harmless, in view of the jury’s findings, without regard to the issues sought to be presented in such answer.

There can' be no harmless error where the affirmative defenses of a defendant, acknowledged to be valid, are thus stricken and he is denied the opportunity to present evidence in support of such defenses and to have same affirmatively submitted to the jury.

The judgments below are reversed, and the cause remanded for another trial, in accordance with this opinion.

CURETON, C. J.

The foregoing is adopted as the opinion of the Supreme Court, and the judgments of the district court and Court of Civil Appeals are reversed, and the cause remanded.


source: Caselaw Access Project

author:
HARVEY, C.
      CURETON, C. J.

license: Public Domain

text:
    SIBLEY v. SOUTHLAND LIFE INS. CO.
    No. 5340.
    Supreme Court of Texas.
    Feb. 18, 1931.
    I. M. Williams, of Dallas, for plaintiff in error.
    Seay, Seay, Malone & Lipscomb, of Dallas, for defendant in error.
   HARVEY, C.

This is an action for deceit founded upon a false representation and a false promise made by the plaintiff in error S. W. Sibley and the Kean Lumber Company to the defendant in error, the Southland Life Insurance Company, in a land transaction. The insurance company recovered judgment for damages against both defendants. Sibley alone appealed, and the judgment was affirmed by the Court of Civil Appeals. 11 S.W.(2d) 250.

In its petition, the insurance company alleges, and the proof shows, that Sibley engaged one J. C. Ellis, a joint broker for all the parties, to negotiate a trade of twenty-two houses and lots in San Jacinto Lawn, an addition to the city of Dallas, for certain lands belonging to the insurance company. Title to the San Jacinto Lawn property was vested in the Kean Lumber Company, a corporation, in which Sibley was heavily interested. The property was incumbered by liens securing various notes, aggregating $96,800, upon some of which Sibley was primarily liable as maker. It was falsely represented by Sibley and the lumber company that each of the twenty-two lots was improved with a brick veneer dwelling house. The construction work on some of these houses was incomplete at the time, but Sibley, as well as the lumber company, promised that all said work would be completed after the trade was effected. This promise was found by the jury to be false. Said representation and promise were communicated by Ellis to the insurance company, and were inducing causes of the latter company making the trade. • Pursuant to .said representation, Sibley and the lumber company caused twenty-two brick veneer houses fo be pointed out to the insurance company, as being the ones offered for trade. Among the ones so pointed out was a brick veneer house on lot No. 6. It was represented that said improved lot was lot No. 7 which was in fact a vacant lot. A written contract was made between the lumber company and the insurance company, and the trade was subsequently concluded by the passage of deeds between the insurance company and the lumber company. In acquiring lot No. 7, the vacant lot, the insurance company relied on the representation that it was improved as stated and the representation that lot 6 was lot No. 7. The difference between the value of lot No. 6 and of lot No. 7 was $1,850. The uncompleted houses on the other lots were not completed by the lumber company or Sibley in accordance with their respective promises, and the insurance company subsequently completed said houses at a cost of $1,866.06. The amount of damages awarded by the trial court’s judgment is made up of said sum of $1,866.06 (less admitted credits) and said sum of $1,850.

As has been said, this action is purely ona for ‘deceit. The measure of damage applicable to the case is the chief subject of inquiry presented in this appeal. Article 4004 of the statutes, which was originally passed in the year 1919, provides in part as follows:

“Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock companies shall consist of either a- false representation of a past or existing material fact, or false promise to do some act in the future which is made as a material inducement to another party to enter into a contract and but for which promise said party would not have entered into said contract. * '* * All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract. ⅜ * * ”

Although some of the provisions contained in the above article of the statutes have been held to be invalid (Clem v. Evans [Tex. Com. App.] 291 S. W. 871, 51 A. L. R. 1135), the above-quoted provisions are valid. Prideaux v. Roark (Tex. Com. App.) 291 S. W. 86S. The rule here provided for measuring the damages in actions for deceit, involving real estate transactions, is applicable to the present case. The rule announced in the year 1906, in the case of George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456, and followed in Booth v. Coward (Tex. Com. App.) 265 S. W. 1026, has been supplemented, if not superseded, by the above statutory rule. The averments of the petition of the insurance company, the evidence, and the. fact findings of the jury supply means for measuring the damages resulting from the false representation to the effect that each of the twenty-two lots had a brick dwelling house on it. The evidence and the averments of the petition show, and the jury found, that, as to one of those twenty-two lots, said representation was false. This lot was lot No. 7, which was in fact vacant; but lot No. 6, an improved lot, was represented to be lot No. 7. The value of this vacant lot and the value of said improved lot were alleged in the petition and shown by evidence; and were found by the jury in answer to special issues on the subject. The, amount of damages recovered by the insurance company on account of said false representation equals the difference between these two values, as found by the jury. In this respect a proper measure of damage was applied. But with respect to the false promise concerning the uncompleted work on the other dwelling houses a different situation is presented. Neither the value of these properties in the condition they were at the time, nor what they would have been worth had said promise been fulfilled, is alleged or proved. Nor did 'the jury make any fact finding in that respect. The cost of completing the work, for which the trial court gave judgment, is a circumstance which might have some bearing in determining the amount of damages recoverable under the statute, but it does not, of itself, constitute an independent item of damage. Since the pleading and proof fail to show the amount of damages, if any, that the insurance company is entitled to recover on account of the false promise, the trial court erred in awarding a recovery in that respect.

Sibley contends that his promise regarding the completion of the buildings carries but secondary liability to answer for the default of the lumber company in the respect mentioned, and, being oral, is not enforceable. Considered in a contractual aspect, his promise would probably be subject to the rule invoked. But, as has already been shown, the cause of action growing out of such promise, which the insurance company asserts herein, is grounded in tort and not in contract. Responsibility for the tort committed is not affected by the fact that the false promise was made orally.

It is further contended that the fact issue of a false promise by Sibley, and other issues collateral to that issue, are not raised by the evidence. We have made no examination as to this, since the evidence may not be the same at another trial.

Because of the error pointed out, the judgment of the trial court should be reversed, and the cause remanded.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: ORITZ, C. CURETON, C. J.

text:
    SECURITY NAT. FIRE INS. CO. et al. v. KIFURI.
    No. 5358.
    Supreme Court of Texas.
    Feb. 18, 1931.
    Nelson Lytle, T. M. West, and Hardy & Hardy, all of San Antonio, for plaintiffs in error.
    David E. Hume, of Eagle Pass, for defendant in error.
   ORITZ, C.

This suit was originally Aled by A. Kifuri, hereinafter called plaintiff, against the Security National Fire Insurance Company, the Fireman’s Fund Insurance Company, and the National Liberty Insurance Company,- on three insurance policies in the sums of $3,000, $3,000, and $4,000, respectively. All of these policies insured the property therein protected for one year, from the 16th day of July, 1927; all expiring July 16, 1928.

. All three of the policies insured the property described therein in the following language:

“Mercantile Building Form.
“$3,000.00 On the one story metal roof G. I. & Stucco Building and additions attached thereto, including foundations, awnings (except cloth awnings), permanent piping and Ax-tures for heating, lighting and water service, while occupied for the following purposes only: lee Factory, and situated as follows: No. 444 and 445 S. side Church Street, in Eagle Pass, Texas, being Lot No. 1 & 2, Block No. 7R5NH, Map Page 8, File No. 769.
“$ Nil On Store and Office Furniture and Fixtures, including Counters, Shelving, Iron Safes, Typewriters and Cash Registers, while contained in the building above described.
“$ Nil On-
“No insurance attaches under any of the above items unless a certain amount is spec-iAed and inserted in blank space immediately preceding the item.”

All three of the policies also contained the following clauses with reference to concurrent insurance:

“Total concurrent insurance permitted, including this policy, $15,000.00 as follows: $15,000.00 on.Building; $ - on Furniture and Fixtures; $-on-.
“It is understood and agreed that no other insurance is permitted unless the total amount allowed, including this policy, is entered in blank space in paragraph next above.”

All of the policies also contain the following clause, with reference to proportion of liability:

“This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by Are, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto. Liability for re-insuranoe shall be speciAcally agreed hereon.”

The suit was based on three respective Texas Standard Are insurance policies issued by the above-named three companies, and in his petition the plaintiff alleges that the building was a total loss, and he sued each insurance company for the full amount of each insurance policy. The petition, however, had the policies attached to it, and it makes them parts thereof. The prayer for relief is for judgment, as upon a liquidated demand, against the two defendants first mentioned for $3,000 and interest each, and the third for $4,000 and interest, together with costs, and the petition also prays for general and special relief.

The record shows that the three insurance companies were joined as codefendants in one suit over their protest and that each filed separate pleas in abatement which were duly overruled, after which they filed separate pleas of misjoinder of causes of action and of parties defendant. These pleas were also overruled.

After the overruling of the pleas in abatement and misjoinder, each insurance company filed separate supplemental answers containing general and special exceptions and general denials, which exceptions the court overruled in detail, and the case proceeded to trial before a jury as one joint suit upbn special issues.

In response to the special issues submitted, the jury found: (a) That the plaintiff furnished the insurance companies with proof of loss sixty days before filing suit, which was retained by them without objection;, (b) that the difference in value between the bare building without considering any appliances, parts, piping, or machinery, before dnd after the fire, was $6,000; (c) that the difference in value between the building equipped as an ice factory, in its condition before the fire, and its value after the fire, was $12,222; (d) that some of the machinery, ice factory appliances, and piping had become affixed to the building or had become a part of the permanent piping and fixtures for heating, lighting, and water service; and (e) that the value of the machinery, ice' factory appliances, and piping which had become affixed to and a part of the building was $6,222.

By proper assignments the insurance companies complain of the holding of the Court of Civil Appeals [12 S.W.(2d) 235] to the effect that there is no misjoinder of parties or causes of action in attempting to sue the three insurance companies in one joint suit on the three separate policies!

In connection with the assignment on this question of misjoinder, the insurance companies cite the case of Hartford Fire Insurance Company v. Post, 25 Tex. Civ. App. 428, 62 S. W. 140, and contend that the holding in the instant case is in conflict with the holding in the Post Case.

The Court of Civil Appeals attempts to distinguish the facts in the instant case from the facts in the Post Case, but we are of the opinion that a careful reading of the opinion in that case will disclose that there is a direct conflict between the holding of the Court of Civil Appeals at San Antonio in the instant case and the holding of the Court of Civil Appeals at Galveston in the Post Case. In fact, we think the language of the two policies in the Post Case, and the language in the three policies in the instant case fixing the proportion of liability in case of partial loss, is not only the same in legal effect, but the same in actual language. It therefore becomes necessary to settle the conflict.

Under the foregoing record the Supreme Court is of the opinion that since the three policies here involved all in effect provide-that in case of partial loss each company shall only be liable for the proportionate amount that its insurance bears to the whole insurance, all parties, insured and insurers, are jointly interested in ascertaining the amount of loss so that the proportionate liability of each insurance company can be ascertained. It follows from this that all three insurance companies are sufficiently jointly interested in the subject-matter of the litigation to justify all being joined as defendants in one suit. We therefore overrule the pleas of misjoinder filed by the several insurance companies. This overrules the holding in the Post Case.

By proper assignments the insurance companies contend that the policies of insurance here sued on as written do not cover all the ice-making machinery and fixtures contained in the building. We sustain these assignments. The policies cover a “One story metal roof G. I. & Stucco building, and additions thereto, including foundations, awnings (except cloth awnings), permanent piping and fixtures for heatmg, lighting and water service.” (Italics ours.) Under the plain wording of the policies, they only cover such piping "and fixtures as are permanent, and are used for heating, Ughting, and water service.

The récord discloses that many items for ice-making machinery and fixtures, not for heating, lighting, or water service, and not a part of the building proper, were included in the recovery. The policies as written do not cover the things attached to the building that would be classed, in law, strictly as fixtures, except such as are used for heating, lighting, and water service. Also there is no allegation of fraud, accident, or mistake contained in the plaintiff’s petition, and no effort to reform the contracts.

On account of the fact that the recovery includes items for ice-making machinery and fixtures not covered by the policies, the judgments of the Court of Civil Appeals and district court should be reversed, and the case remanded to the district court for a new trial.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: RYAN, O. OURETON, C. J.

text:
    FRAME et al. v. WHITAKER et al.
    No. 5245.
    Supreme Court of Texas.
    Feb. 18, 1931.
    T. H. Ridgeway, of San Antonio, for plaintiffs in error.
    Huson & Huson, of San Antonio, for defendants in error.
   RYAN, O.

This suit was brought by Fannie S'. Frame, for herself and as guardian of her minor child, Betty Lu Frame, against W. W. and G. W. Whitaker, to cancel a certain oil and gas lease of a portion of their home tract of land, executed on October 17, 1918, by D. A. Frame and Fannie S. Frame, his wife, to the Whitakers and C. Y. McBeth, the latter having assigned his interest in the. lease to W. AY. Whitaker.

David A. Frame died testate on May 1, 1925, leaving surviving his wife, Fannie S. Frame (to whom he was married on January 29, 1907), the child Betty Lu, born December 19, 1922, and five grown children of a previous marriage.

The child, Betty Lu, was born after the will was executed on May 5, 1907, and was not provided for therein, and therefore succeeded to the same portion of her father’s estate as she would have been entitled to had he died intestate. Article 8292, Rev. Stat. 1925.

It was alleged in the petition that, under the terms of her deceased husband’s will, the property involved herein was bequeathed to Eannie S. Erame, but Betty Lu perforce the statute is the owner of an undivided one-sixth interest therein, and said Eannie S. Erame is the owner of the remaining five-sixths interest.

Eannie S. Frame is the duly qualified and acting guardian of the estate of her child, Betty Lu, and such guardianship was and is still pending in the county court of Bexar county. Alleged failure to comply with the lease contract on the part of the Whitakers was made the basis of the cancellation sought.

When the lease was executed and at his death the land was the separate property of D. A. Frame.

It was also alleged in the petition that Eannie S'. Erame has executed a will, as she has the right to do under the will of D. A. Frame, deceased, in which she has bequeathed the land in question to her daughter, Betty Lu.

The defendants filed a general and twenty-two special exceptions to the petition and an elaborate answer covering some ten pages of the transcript; the exceptions were overruled by the trial court. The defendants also filed pleas to the jurisdiction and in abatement, which were sustained by the court, the effect of which is to hold that E. W. Frame, the independent executor of the will of his father, D. A. Frame, is a necessary party plaintiff, and that Mrs. Eannie S. Frame and daughter are. without power to bring the suit, unless joined by the executor. The cause was thereupon dismissed at the plaintiffs’ cost, but without prejudice to the rights of the executor or legal representatives of the estate of D. A. Frame, deceased, to action on the same subject-matter.

It was alleged and shown that E. W. Frame qualified and is the acting independent executor under the last will and testament of D. A. Frame, deceased, which was duly established and probated in the county court of Bexar county, and that he has refused, through his attorneys, to join in this suit.

The trial court’s judgment of dismissal was affirmed by the Court of Civil Appeals. 7 S. W.(2d) 140.

The will of D. A. Frame, as probated, after the usual revocatory clause as to any and all previously made testamentary dispositions of his estate, and the requirement that his just debts be paid, devises to his wife in the second clause as follows:

“Second — I give, devise and bequeath to my wife, Mrs. S. F. Frame, my farm located in Bexar County, Texas, and consisting of about 331 acres located on the Medina River and known as a part of the old Stanfield Farm to he used by her during the. term of her natural life, but she shall not sell or dispose of the same in any way during her life time, provided however that she may dispose of the same by will to whom-so-ever she may desire; and I also give to my said wife all.of the stock consisting of cattle and horses and any and all animals, also all farming utensils, furniture and other property located upon said farm at the time of my death there being no restriction what-ever in her handling and disposing of the same.as she may see proper, the above restriction applying to real estate only.”

And to four of his grandchildren as follows:

“Third — I give, devise and bequeath to each of the following named grand-children the sum of Five Thousand Dollars, ($5,000.00) namely: Jennie Smith, daughter of Mrs. Kate Smith, Five Thousand Dollars, ($5,000.-00), Carl Yakey, son of Hattie Yakey, Five Thousand Dollars, ($5,000.00), Fred Bowers, son of Susan Bowers, Five Thousand Dollars, ($5,000.00). Ralph Frame, son of O. R. Frame, Five Thousand Dollars, ($5,000.00). The above amounts shall be paid in cash to each of said four grandchildren or their legally qualified guardian, by my executor herein-after named as soon as the same can be realized out of cash or property which I may have upon hand at the time of my death, or to which I may be entitled, provided however that none of the property given to my said wife shall be taken to pay said legacies.”

. And to his son, E. W. Frame, residuary legatee, as follows:

“Fourth — All of the residue of my property remaining after the foregoing legacies have been paid I give, devise and bequeath to my son E. W. Frame.”

E. W. Frame was appointed independent executor and trustee, as follows:

“Sixth — Having full confidence in my son E. W. Frame, I herely nominate, constitute and appoint him sole independent executor and trustee of this my last will and testament and of my said estate and it is my desire that he shall act and be independent of .the Probate Court and of all other Courts and that he shall not be required to give any bond or any security whatever for carrying out this trust and no action shall be had in the Probate Court, or in any other Court except to probate this my last will and testament and to file an inventory of my estate.”

In order to decide the question of parties, it is necessary to construe the above, will and ascertain what title vested in Mrs. Fannie S. Frame, to the land in question, under the provisions of tie will. If slie took only a life estate, with power to dispose of same by will, then E.-W. Frame, individually, as residuary legatee (in ease she should not so dispose), would be a necessary party to the suit. The fact that she’ has already made a will does not alter this, as she may revoke or destroy such will at any time. If E. W. Erame is a necessary party and refuses to join as a plaintiff, he should be made a party defendant.

In construing wills, the intention of the testator must be ascertained, if possible, and, if it is not in contravention of some established rule of law or public policy, must be given effect. Haring v. Shelton, 103 Tex. 11, 122 S. W. 13; Laval v. Staffel, 64 Tex. 372; Brooks v. Evetts, 33 Tex. 732; Bell County v. Alexander, 22 Tex. 351, 73 Am. Dec. 268; 40 Cyc. 1386.

All its provisions must be looked to for the purpose of ascertaining the real intention of the testator, and, if this can be ascertained.from the language of the instrument, then any particular paragraph which, if considered alone, might indicate a contrary intent, must yield to the intention manifested by the whole instrument. McMurry v. Stanley, 69 Tex. 227, 6 S. W. 412; Darragh v. Barmore (Tex. Com. App.) 242 S. W. 714; 29 R. C. L. 204.

We think that, when this will is considered and construed as a whole, it discloses the purpose and intent of the testator to convey to Mrs. Erame a fee-simple title, with a restriction that she should not sell it during her lifetime. The will recites: “I give, devise and bequeath to my wife * * * my farm consisting of about 331 acres located on the Medina River and known as a part of the old Stanfield Earm.” This, clearly, if no other provision had been inserted, would vest the fee-simple title in her. The will, from the language following, evidences the intent on his part that it was only her right to sell or dispose of it during her life-time which the testator had in mind when he provided, “But she shall not sell or dispose of the same in any way during her life time”; he follows this by authorizing her “to dispose of the same by will to whomsoever she may desire.”

The will, then, in the same clause, devises to her certain described personal property, “there being no restriction whatever in her handling and disposing of the same (meaning the personal property), the above restriction applying to real estate, only.”

In the next clause of the will there is devised $5,000 each to certain named grandchildren, provided that none of the property given to the wife shall be taken to pay the legacies to them, and in the fourth clause it is provided that all the residue of the testator’s property after the foregoing legacies are paid shall go to the son, E. W. Erame.

The opening paragraph of the will express-' es a clear purpose of the testator to dispose of his entire estate, and not to die intestate with reference to any part thereof.

We think that, when this will is viewed and construed in its entirety, it clearly evidences the purpose to convey the fee-simple' title to the land to Mrs. Frame, and the attempt to restrict her right of alienation during hex lifetime is futile. She is expressly given the right to dispose of the property in question by will.

The clause in regard to her using same during her lifetime is in the same sentence with the attempted prohibition against sale, and the testator used this language of prohibition as a part of the restriction against sale, and not for the purpose of creating a life estate as such.

When the prohibition against disposition during lifetime and the provision giving the right to dispose by will are considered together, it is evident that the testator intended to provide a restriction against the alienation (during her lifetime) of property that he had given her. Such a restriction would be void even if it applied only to a life estate. Laval v. Staffel, 64 Tex. 370; Bouldin v. Miller; 87 Tex. 359, 28 S. W. 940; Hamilton v. Jones, 32 Tex. Civ. App. 598, 75 S. W. 554.

Article 1291, Rev. Stat. 1925, provides that: “Every estate in lands which shall thereafter be * ⅜ » Revised to one although other words heretofore necessary at common law to transfer an estate in fee simple be not added, shall be deemed a fee simple, if a less estate be not limited by express words or do not appear to have been * * * devised by construction or operation of law.” Chief Justice Gaines, in Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160, held that, if, in the will there considered a fee-simple estate was conveyed, a provision that the devisees shall not sell is clearly void, and, if only a life estate was conveyed, the clause restricting its alienation is equally void.

As it does not so clearly appear from the language of the will that a less estate was intended to be created, the devise will be deemed to be in fee simple. May v. Town Site Co., 83 Tex. 502, 18 S. W. 959; Darragh v. Barmore (Tex. Com. App.) 242 S. W. 714; Diamond v. Raton, 58 Tex. Civ. App. 263, 124 S. W. 196: 28 R. C. L. 316.

In this connection, we do not intend to intimate that an estate in land cannot be conveyed or bequeathed for life only, with authority on the part of the devisee or grantee to sell or bequeath by will, and with remainder over to a particular person, if suqh de-visee or grantee fails to convey or bequeath by will; that such may be done is settled by the authorities. Weir v. Smith, 62 Tex. 1; Young v. Campbell (Tex. Civ. App.) 175 S. W. 1100 (writ of error refused).

We hold simply that in this case, when the will is viewed and considered from every angle, it indicates the purpose and intent on the testator’s part to devise the land to his wife, ánd then restrict her right of alienation, and that such clause of restriction is vo^'

It follows that, whether Mrs. Frame dies testate or intestate with reference to this land, E. W. Frame has no contingent remainder interest therein, and therefore individually is not a necessary party to this suit,

Neither is he, as independent executor, a necessary and indispensable party hereto. The record and the findings of the Court of Civil Appeals show that there, are no debts due by the estate to any person whomsoever.

It is contended that Mrs. Frame is asserting a claim for $5,000 by reason of the following instrument, viz.:

“April 19, 1922.
“I promise to pay my wife on conditionary the sum of Five Thousand (5000.00) Dollars providing she stays with me while I live and take care of things as she always has done; this note not due for six months after my death and to be at' no interest until due. This note to have no lien on my property while I live, Providing that should my wife die before me this note will become due to her father Curtis Stanfield. This 20 April 1922.
“[Signed] D. A. Frame,”

—which it is claimed is either a codicil to the will or a valid obligation against the estate, and therefore this land, or a part thereof, would be liable for the payment thereof.

We held in No. 5459, E. W. Frame, Executor, v. Fannie S. Frame, 36 S.W.(2d) 152, this day decided, that no obligation thereunder exists, and such instrument is invalid for all purposes as a claim against the estate of D. A. Frame; therefore it furnishes no reason why the executor, as such, should administer on this land or have any control/over it.

Mrs. Frame and Betty Lu Frame, a daughter born after the execution of the will, took the title to the land as soon as D. A. Frame died. Article 3314, R. C. S. 1925.

We have carefully examined the pleadings and statement of facts, and we can discover no reason why E. W. Frame, either individually or as executor, is a necessary party to this suit, either as plaintiff or defendant. He has no interest in the land individually, and can have none, and there is no pleading or proof that would show that creditors’ rights .can be affected either directly or indirectly by the result. Under such a state of the record, Mrs. Frame and her daughter, who was born after the making of the will, and who is pretermitted therein under article 8292, own the entire fee in this land, and they have the right, as such owners, to prosecute a suit to forfeit and annul the lease in question.

The judgments below are reversed, and the cause remanded to the district'court for another trial.

OURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will he entered in accordance therewith.


author: RYAN, C. CURETON, C.

text:
    FRAME v. FRAME.
    No. 5459.
    Supreme Court of Texas.
    Feb. 18, 1931.

      White, Wilcox, Taylor & Gardner, of Austin, for plaintiff in error.
    Edwin G. Black and T. H. Ridgeway, both of San Antonio, for defendant in error.
   RYAN, C.

This suit was brought in the district court of Bexar county by Mrs. Fannie S. Frame, the surviving wife of D. A. Frame, deceased, against E. W. Frame, independent executor, under the last will and testament of said D. A. Frame, deceased, to recover upon the following instrument:

“April 19th, 1922.
“I promise to pay to my wife on condition-ary, the sum of Five Thousand ($5000.00) Dollars, providing she stays with me while I live and take care of things as she always has done; this note not due for six: months after my death, and to bear no interest until due. This note to have no lien on my property while I live. Providing that should my wife die before me, this note will become due to her father, Curtis Stanfield. This April 20th, 1922.
“D. A. Frame.”

The facts show that plaintiff continued to live with her husband after the execution of said instrument until the time of his death, and that both before and after its execution she had performed her household duties, and had performed certain services for her husband in keeping the simple farm accounts, selling butter, and other services of like nature. These services were claimed by the plaintiff to have constituted a sufficient consideration for the instrument sued upon so as to entitle her to recover thereon against the executor.

The executor’s defensive contentions are: (1) The requirement that the wife continue to live with her husband until his death, and take care of things as she always has done, does not constitute a valid consideration for the note, and is contrary to public policy; (2) the contract was wanting in the wife’s capacity to enter into, the same not being for necessaries furnished her or for the benefit of her separate estate; (3) earnings accruing from the services of the wife are community property, and not recoverable in a suit by the wife against the husband’s executor.

The executor also filed a cross-action against plaintiff for recovery of $1,504.25 withdrawn by Mrs. Frame from her husband’s bank account the day before and upon the day of his death. Mrs. Frame defended against such cross-action by attempting to offset against same a claim asserted in behalf of herself and her minor child for statutory allowance for support for one year, and for the value of a Liberty bond alleged to have been converted by the executor, and on account of certain sums claimed to have been paid out by her for funeral expenses and expenses of last sickness of her husband.

The case was tried without a jury, the court finding against Mrs. Frame and in favor of 'the executor as to the $5,000 instrument sued upon; and in favor of the executor on his cross-action for the recovery of $1,504.25, but as to the last item it rendered judgment in favor of Mrs. Frame upon the offsets claimed by her, the net result being that neither party recovered a balance against the other.

On appeal, the Court of Civil Appeals -approved the trial court’s judgment on the executor’s cross-action, but reversed and rendered the remainder of the judgment so as to award Mrs. Frame a recovery for the amount sued for on the note. 14 S.W.(2d) 865. ’

Upon the trial, it was shown that, prior to the execution of the note, 'Frame and his wife had lived on the farm owned by him at the date of his marriage for about 15 years, during which time Mrs. Frame did the ordinary housework, cooked for hired hands, collected rents from tenants, and helped to look after and supervise the work of clearing and grubbing more than two hundred acres of the land; that she often made trips to town to buy parts for farm implements, and made one or two trips to town each week to sell butter and other products of the farm; that she did a great deal of labor in connection with the operation of the farm, which it is asserted was outside of her ordinary duties as a housewife.

It is claimed in her behalf that the contract evidenced by the note sued upon was one which she had the legal capacity to enter into ; that it was supported by a valid consideration, and, as the undisputed evidence disclosed full compliance with its terms, she was entitled to a judgment for the amount stipulated.

The instrument shows upon its face that it was payable only upon condition that Íthe wife “stays with me while I live and take care of tilings as she has always done,” and is therefore contractual; the consideration being such future services to be performed by the wife. These are services reasonably contemplated to he performed by the wife under the surrounding circumstances, are implied in the marital contract, and furnish no consideration for the obligation. As pointed out by Judge Hutcheson in Re Gutierrez (D. 0.) 33 F.(2d) 987, even in those jurisdictions where the wife is authorized generally to make contracts, she may contract with her husband only for such services as are outside of the purely domestic relations implied in the marital contract.

It is conceded that, at the time the instrument was executed in 1922, the wife had “taken care of things” for her husband, that is, had assisted in looking after the management of the farm, in marketing its products, ' in collecting and paying out money and drawing checks on the bank therefor, and that she lived with, and ministered to, the deceased as a good and provident wife — that she continued such services after the execution of the instrument precisely as she had done before. These did not constitute extraordinary services outside the pale of her purely domestic, marital relations. The evidence discloses no domestic discord and no misconduct on the husband’s part entitling the wife to a separation or divorce.

The instrument has none of the characteristics of a valid gift passing a present title. It is not claimed to be a will,' and was not sued upon as such. There is no element ■"•"of estoppel in the transaction.

Mrs. Frame performed, after the execution of the instrument, exactly the same character of services which she performed before; she was not put in a worse condition through the execution of the instrument; and noth-_ing in the evidence even suggests the idea that any of her acts were influenced by it.

The husband’s agreement to pay his wife for services rendered as a housekeeper or for the performance of other duties im-posed upon her by the marital relation is void, for the reason that she owed such serv-ices independently of any contract, is therefore without consideration, and for the further reason that it is against public -policy. McKay v. .McKay (Tex. Civ. App.) 189 S. W. 520; Roberts v. Frisby, 38 Tex. 220 ; 8 Corpus Juris, p. 231; 30 Corpus Juris, pp. 676, 677; L. R. A. 1917D, pp. 269 to 272; Blaechinska v. Howard Mission, 130 N. Y. 497, 29 N. E. 755, 15 L. R. A. 215; 2 Elliott on Contracts, § 756.

We are cited to In re Gutierrez (D. C.) 33 F.(2d) 987, as sustaining the right of Mrs. Frame to recover herein. In that case was involved the right of Mrs. Gutierrez, wife of a bankrupt, to recover for six months’ salary for services rendered in the capacity of foreman or head clerk in the bankrupt’s store. Judge Hutcheson held that such earnings constitute community property, and that under the statutes'of Texas the wife'may contract with her husband in regard thereto, making the claim therefor a provable claim in bankruptcy, so long as such services are outside of the purely domestic relations implied in the marital contract.

There is no conflict between that case and our holding here.

Our conclusion is that no valid consideration existed for, the obligation, neither was it for necessaries furnished the wife or for the benefit of her separate estate.

The trial court based his judgment denying a recovery on the answer to the question of whether, in the event of a recovery, the proceeds would belong to the “wife’s separate estate,” or would be “community property,” because, if such proceeds would be community property, the effect of the recovery would be vain and of no practical effect — it would merely be to take certain money from the estate to he returned to the estate. And again ■there would in such case arise the anomalous situation -of the plaintiff suing the estate’s legal representative for the use and benefit of the estate, but not founded on any allegation of waste, delinquency, or mismanagement of the estate.

The trial coui*t correctly found, in answer to that question, that such recovery would be community property, and not the wife’s separate estate.

Our statutes do not make the personal earnings of the wife her separate property as is attempted to be done with reference to rents and revenues derived from her separate property. Kerr v. Tyler Guaranty State Bank (Tex. Civ. App.) 283 S. W. 601.

The statute (Rev. St. 1925, art. 4614) declaring rents and revenues derived from her separate real estate to be her separate property was beyond the power of the Legislature to enact, in view of article 16, § 15, of •the Constitution, which declares that only such property as was owned by the wife before marriage or acquired after by gift, devise, or descent constitutes her separate estate, and such statutes are invalid, because the Constitution furnishes the sole measure of her separate estate, and the Legislature can neither add to, nor take away from, this. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799; Gohlman v. Whittle, 114 Tex. 548, 273 S. W. 808.

Husband and wife have no power to change, by mere agreement made in advance, the status of community property yet'to come into existence, to that of wife's separate property. Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; 31 C. J. 73.

It is true the husband can change the status of community property and convert it into separate property of the wife. This, however, can only be done after such property has been acquired and its status fixed in accordance with the provisions of the Gonsti-' tution of this state. Here the husband was never afforded the opportunity to change the status of this property after its acquisition, as under the express terms of the contract Mrs. Frame’s right to the «amount stipulated therein did not. accrue until she had performed the agreed services up to the time of her husband’s death.

The proceeds of a collection of this instrument would represent, money paid on account of services rendered by Mrs. Frame, earned by her during the marriage, and would therefore be community property and constitute assets in the executor’s hands- to the same extent as other community property, to be used in the payment of debts, expenses of administration, and so forth. Rev. Stat. 1925, art. 4620.

At the time of D. A. Frame’s death, there was on deposit to his credit in bank the sum of $1,504.25, proceeds of the sale of a portion of his separate estate. Mrs. Frame was given, and exercised for years prior thereto, the authority of drawing checks against the bank account, at will.

On the day of and before deceased’s death, Mrs. Frame withdrew from said account in bank the sum of $1,000, and immediately after his death she withdrew the balance, amounting to $504.25. The executor by cross-action sought the recovery of these sums and interest thereon.

Some time before Frame’s death, he gave his wife a Liberty bond in the sum of $500 as her separate estate. Before his death, Frame executed a note to the bank for a loan, and secured the same by depositing Mrs. Frame’s said bond and" another for like amount owned by him. This note was not paid before Frame died; the executor, after his qualification a's such, procured from the bank both said bonds, sold them, and applied the proceeds in payment of said note. Mrs. Frame also sought recovery of the value of said Liberty bond, claimed by her -as her separate property, also for her claim for twelve months’ maintenance; as provided by ¡statute. The trial court found that $609 is a reasonable allowance therefor.

The evidence shows that Mrs. Frame paid out of the funds so withdrawn from the bank the sum of $400 for funeral expenses and expenses of D. A. Frame’s last illness. The trial court balanced these two items of reasonable allowance and expenses of funeral and last illness -against the item of $1,000 withdrawn from the bank as aforesaid. He found that the item of $504.25 withdrawn after Frame’s death (which canceled any authority on the part of his wife to cheek against the bank account) was unlawfully withdrawn, and must be accounted for to the executor, but this is offset by the value of the Liberty bond appropriated by the executor in payment of Frame’s note and debt to the bank. The trial court therefore denied any recovery to eitüer party on account of these items; this portion of the judgment was affirmed by the Court of Civil Appeals.

The executor in his application for writ of error complains of such disposition of these items, but, in oral argument before us, his counsel frankly stated' that these claims, though recoverable, in his opinion, would not have been urged but for Mrs. Frame’s suit to recover on the note, and that no insistence would be made on the assignments, if we should conclude that Mrs. Frame is not entitled to any recovery on the $5,000 obligation. Having concluded that she is not.en-U titled to such recovery, we do not pass on| said assignments. . ’

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.

CURETON, C.

The foregoing is adopted as the opinion, of the Supreme Court, and the judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.


author: CHRISTIAN, J.

text:
    PENNEBAKER et al. v. STATE.
    No. 13975.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Prank R. Graves, of Port Worth, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an appeal from a judgment forfeiting an appearance bond.

The record discloses that judgment nisi was entered against Grace Roberts1, principal, and T. S. Pennebaker and R. R. Roberts, sureties. Upon final hearing, judgment was rendered against the sureties. No disposition of the case was made as to Grace Roberts, the principal, and the judgment was not made final as to said principal. Hence this court is without jurisdiction. Cox et al. v. State, 34 Tex. Cr. R. 94, 29 S. W. 273.

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.


author: CALHOUN, J.

text:
    McGowan v. STATE.
    No. 13908.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Art Schlofman, of Dalhart, and L. N. Taylor, of Clayton, N. M., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction is for burglary, and the punishment was assessed at five years in the penitentiary.

The storehouse of George W. Vaughn, in which was situated a post office, was burglarized. The knob and combination to the safe in the post office was broken off and something like $100 was taken therefrom. Registered letters were torn open and such money therein, if any, was taken. Also five or six pads of money order blanks and otter items used in tte post office were taken. Benton Walker-, an admitted accomplice, testified ttat tte appellant and one Hester French, together with him, committed the offense and testified to a conspiracy to commit the burglary 'by said three persons having been entered into. The accomplice testified that, while tte others entered the place and robbed it, he stood watch while the offense was being committed. According to the testimony of the ' accomplice, considerable preparation was made to commit the offense and a series of acts were done so as to lay a predicate for an alibi in defense of the crime. The accomplice testified that after the offense was dommitted they went into the state of Colorado and there divided the proceeds.

Appellant’s bill of exception No. 6 complains of the failure of the court to sustain his objection to the testimony of the admitted principal, Benton Walker, to the effect that on tte night of the burglary of the post office by the appellant, Hester French, and said witness, they also pried open a window of the office of the Big Joe Lumber Company, and that there was no money there, and that they did not take anything, and also to the testimony of said witness that the three of them had also broken in to the Sells Hardware Store some time previous-to the burglary of the post office. The appellant objected to said testimony because it was a separate offense and not the offense for which the appellant was now on trial, proved no issue in the case, was prej- ' udieial, irrelevant,' immaterial, and did not prove or tend to prove any system, intent, or fact in this cause for which the appellant was on trial. The court overruled said objections, and permitted said testimony to go to the jury unlimited, to which appellant duly excepted.

In the admission of said evidence we are of the opinion that the court was in error. There was no evidence offered except the evidence of the admitted accomplice tehding to connect the appellant with either of said burglaries. It has been held by this court that evidence of extraneous crimes may be admitted to develop the res gestee, to connect the defendant with the case on trial, or to show intent. Also it is asserted as a general proposition that such evidence may be introduced when it tends to show system, but the authorities draw a distinction between the doctrine of system and systematic crime. The question of system will not apply unless it is for some of the purposes stated. Gone v. State, 86 Tex. Cr. R. 291, 216 S. W. 196; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501; Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869.

In the case of Smith v. State, supra, it appeared that it was the theory of the state that Smith and Capers entered into a conspiracy to commit the crime of arson as to different houses. Gapers testified against Smith, and on the trial the court permitted testimony with reference to arson as to other houses than that charged. This court, in passing upon this question, used the following language: “These transactions were independent of the one for which this conviction was obtained. The court seemed to believe, from his qualification of the bill, that, if there was a conspiracy to burn houses, this would permit evidence of all the otter cases of arson testified by Capers, on the theory of system. Where evidence of an extraneous kind is admitted, it must be to show intent to develop the res gestse, identity of the defendant, or show system. That a party may be systematically a thief, or destroyer of houses by burning, op in the participancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identify a party, or to show intent, is one thing, but to prove systematic crime, or that an accused is a confirmed violator of the law is a very different proposition. And extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions, and this to connect the defendant with the crime for which he is being tried. This evidence does not come within these exceptions. The fact that other houses may have been burned and appellant may have participated in them does not of itself connect the defendant with the arson charged in the indictment under this record.”

This evidence as tq said extraneous crimes was of a material character and in our opinion prejudicial to the accused. The jury assessed the punishment at five years in' the penitentiary, and we are unable to say what effect this testimony had upon the jury in fixing said punishment, and, if doubt is entertained as to whether it was prejudicial or not, it should be resolved in favor of the accused. Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869; Barth v. State, 39 Tex. Cr. R. 381, 46 S. W. 228, 73 Am. St. Rep. 935; Henard v. State, 46 Tex. Cr. R. 90, 79 S. W. 810; McCandless v. State, 42 Tex. Cr. R. 58, 57 S. W. 672.

Appellant’s bills of exception Nos. 1 and 5 are to the refusal of the court to give the jury instructions to find the appellant not guilty, based upon the ground that the state failed to produce and offer evidence corroborating the evidence of the accomplice Benton Walker. Considering all the evidence offered by the state, we think there was sufficient evidence corroborating. the accomplice connecting the accused with tte offense charged to warrant the issue of corroboration being submitted to the jury.

Appellant’s bill of exception No. 3 complains of the refusal of the trial court to give a requested charge on circumstantial evidence. The testimony of the accomplice in this case having made a clear case by direct evidence, the charge on circumstantial evidence by the court was not required, although.the direct evidence only came from the accomplice. Wampler v. State, 28 Tex. App. 352, 13 S. W. 144; Thompson v. State, 33 Tex. Cr. R. 217, 26 S. W. 198; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 263, 265.

Appellant’s bill of exception No. 4 complains of the action of the trial court in admitting testimony to the effect that the accomplice pointed out some place where he thought the money .orders stolen were hidden. This bill of exception is in question and answer form and contains remarks of the court and the attorneys and is not accompanied by a certificate of the trial judge showing the necessity therefor in order to elucidate the facts or questions involved and therefore carfhot be considered. Salinas v. State, 113 Tex. Cr. R. 142, 18 S.W.(2d) 663; Kelly v. State, 112 Tex. Cr. R. 514, 17 S.W.(2d) 460; Eindley v. State, 112 Tex. Cr. R. 468, 17 S.W.(2d) 47.

It is not necessary to discuss appellant’s bill of exception No. 2 complaining of the failure of the trial court to grant the continuance asked for, because that will not likely appear on another trial.

For the error pointed out, the judgment of the trial court is reversed and 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.


text:
    MILLER v. STATE.
    No. 13886.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Jno. B. Dittler and Rogers & Smith, all of Big Spring, for appellant.
    Uloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

State’s witness Merrick, who was a deputy sheriff, testified, in substance, as follows: The witness was driving on the Bankhead Highway when he noticed appellant’s car parked in the road. Appellant’s wife was sitting in the car. Appellant was in a pasture about fifty yards from the pasture fence. He had a half-gallon fruit jar in his hand and was walking toward the car. The witness stopped and started toward appellant, who ran to a tree and broke the jar. Going into the pasture, the officer found that the jar had contained whisky. Appellant was arrested and carried to town. Shortly after appellant had been taken to town the officer made a search of the pasture in the vicinity of the place where the whisky had been broken and found a half-gallon jar of whisky in some brush.

Appellant testified that he had gone into the pasture to answer a call of nature and was climbing through the fence to return to his car when the officer approached. He denied that he had at any time had any whisky in his possession, and declared that he did not break a jar on a tree, as testified to by the officer. He denied that he had possessed liquor on the occasion in question, and declared that the whisky the officer testified he found in the pasture under some brush did not belong to .him.' Appellant’s wife testified that she and her husband stopped the car on the highway in order that her husband might go to the pasture to answer a call of nature.

It appears from bill of exception No. 2 that the state had made an effort to prove that appellant and the woman who was with him on the occasion he was arrested were not married, and that the court had refused to permit any evidence to be introduced touching the relationship of the parties. In his closing argument, as shown, in the bill of exception, the district attorney used language as follows:

“At least he was not married to her about a year and a half ago when he was living with her.”

It is certified in the bill .of exception that the remarks above quoted were made by the district attorney in an effort to convince the jury that the woman who had testified in the case that she was appellants wife did not in fact sustain such relationship to appellant. Appellant objected to the argument on the ground that it was prejudicial and was made by the district attorney for the purpose of prejudicing appellant; that it led the jury to believe appellant was living in adultery with the woman who had testified that she was his wife; that said argument had no bearing on the case except to inflame the minds of the jury against appellant, in causing them to believe he was an immoral person and a criminal generally. The following is stated in the bill as a fact:

“The court sustained said objection and instructed the jury not to consider said statement so made by the district attorney to the jury. Nevertheless, said statement was made to the jury as aforesaid and in their presence and hearing, and the same was prejudicial to the defendant and could not be withdrawn from their consideration, and was appropriated by the jury upon the trial of this case as an argument in the case.”

In Dock McKee v. State of Texas (Tex. Cr. App.) 34 S.W.(2d) 592, 593, on motion for rehearing, delivered January 28, 1931, a similar statement of fact was held by this court to constitute a certificate on the part of the trial judge that the argument in question was prejudicial. We quote the language of Judge Hawkins in that case, as follows:

“We are quite sure the learned trial judge did not intend to certify that the argument was prejudicial and uncalled for, and' that if he had thought so he would have granted a new trial. He doubtless, understood the bill to be as contended for by the state, but the bill is before us and must be appraised on its face. The portion of the bill referredyto does not appear as ground of objection to the argument, nor as reasons for excepting to the ruling of the court, but appears as the statement of a fact. The bill is almost exactly like the one dealt with in Roberts v. State (Tex. Cr. App.) 27 S.W.(2d) 159.”

There was nothing in the evidence to support the statement that appellant was living with his wife before he married her. The statement of the district attorney was susceptible of the construction that the relationship between the parties had been adulterous. It was calculated to lead the jury to believe that appellant was immoral and a cripiinal generally, and that the woman who gave testimony tending to exculpate appellant was unworthy of belief, by virtue of the fact that she was of low moral character. Although unsworn as a witness, the district attorney gave testimony in argument obviously prejudicial to appellant. We are unable to reach the conclusion that the withdrawal from the consideration of the jury of the improper remarks saved appellant from harm. It is the rule that if the argument is of such nature as to be obviously hurtful and .prejudicial it will call for á reversal notwithstanding the fact that the court instructed the jury to disregard such argument. Branch’s Annotated Penal Code, § 362; Smith v. State, 44 Tex. Cr; R. 137, 68 S. W. 995,100 Am. St. Rep. 849; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342;. Boyd v. State, 108 Tex. Cr. R. 221, 299 S. W. 645. See, also, Stanchel v. State, 89 Tex. Cr. R. 358, 231 S. W. 120; Walker v. State, 84 Tex. Cr. R. 136, 206 S. W. 96. 97; Hilson v. State, 96 Tex. Cr. R. 550, 258 S. W. 826.

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: CHRISTIAN, J. MORROW, P. J.

text:
    RUSHING v. STATE.
    No. 13424.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1930.
    Rehearing Denied Feb. 25, 1931.
    Leave to File Second Petition for Rehearing Denied March 18, 1931.

      Baker & Baker, of Coleman, for appellant.
    Lloyd ,W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The state’s witness testified that he purchased a pint of whisky from appellant at a filling station. Testifying in his own behalf, appellant denied that he was at the filling station, and declared that he had no transaction with the witness.

Bill of exception No. X reflects the complaint of appellant that his counsel was unduly restricted in his voir dire examination of the jurors. The inquiry of counsel was: “Are you in favor of the law of reasonable doubt in criminal cases?” The court declined to permit the question to be asked, but advised appellant’s counsel that he might explain to the jurors the law of reasonable doubt and presumption of innocence, and might ask if they were prejudiced against either of said laws, and if for any reason they would hesitate to follow the court’s charge relative to said laws. Counsel declined to ask the questions, but the court explained the law of reasonable doubt and presumption of innocence to the jury and propounded to them the questions counsel for appellant had declined to ask. Under the holding of this court in R. F. Ward v. State, 31 S.W.(2d) 638, delivered October 6, 1930, the court was within his discretion in such ruling.

In bill of exception No. 3 appellant contends that his counsel was unduly restricted in the cross examination of the state’s witness Barringer. This witness had testified on direct examination that the sale of whisky occurred in the afternoon. On cross-examination he was asked by appellant’s counsel if he would say that the transaction did not take place at 11 o’clock in the morning. The witness replied that he was not positive whether it was in the morning or in the afternoon. Whereupon appellant’s counsel asked the following question: “Do you now swear to the jury that it did not take place in the morning at eleven o’clock?” The district attorney objected on the ground that the question had been answered. The court sustained the objection. We are unable to reach the conclusion that the bill presents error. It appears that the witness had answered the question propounded to him by appellant’s counsel.

It appears from bill of exception No. 4 that Mrs. Smoot, a witness for appellant, had testified on direct examination that she was at the place where state’s witnesses claimed to have bought whisky from appellant, and that appellant was not there at said time. Upon cross-examination the district attorney asked the witness where her husband was. Appellant objected and the objection was sustained. The question was not answered. We are unable to tell in what particular the asking of the question would have prejudiced the rights of appellant. Ward v. State, supra.

Bill of exception No. 5 relates to the argument of the district attorney to the effect that a cousin of appellant was charged in the federal court with a felony. It appears from the bill of exception that this cousin, in testifying for appellant, admitted that he was charged with a felony in the federal court. It was proper for the district attorney to discuss the matter as affecting the credibility of the witness.

In Ms argument to the jury, the district attorney stated that appellant’s reputation was not good, as he “would not be hanging around such a place” if he had a good reputation. Appellant objected to the remarks and the court declined to instruct the jury to disregard them, although appellant presented a written instruction covering the matter. The hill is qualified with the statement that 'the argument .was in response to the argument of appellant’s couúsel to the effect that a hard-working negro of good reputation should1 not be convicted on the evidence adduced by the state. It is the rule that the accused is not entitled to complain of the argument of state’s counsel which is occasioned and justified by the argument of his own counsel. Section 363, Branch’s Annotated Penal Code.

Failing to find reversible error, 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.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing the appellant renews his complaints of the various matters discussed in the original opinion.

As reflected by the bill of exceptions, the action of the court with reference to the voir dire examination of the members of the jury panel was not an undue abridgment of the appellant’s conceded right to acquire, by examination of the jurors, information upon which he might intelligently form a conclusion with reference to challenges. In the action of the court upon the subject nothing is perceived which is in conflict with the announcement of this court in the case of Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267. In the Plair Case it was held that it was an undue restriction of the appellant’s right to deny him the privilege of propounding a proper question to the members of the panel individually, they being assembled in the courtroom for examination. The question involved was whether in the minds of the jurors there was a feeling against the suspended sentence law as would prevent them from giving the accused the benefit of such law if the facts proved were such as to demand it. In the present case, the question was whether each individual juror was in favor of the law of the presumption of innocence. In denying the appellant’s counsel the privilege of asking the question mentioned, the court stated to counsel that he was privileged to explain to the jurors what the law was, and what the court would charge on the law of reasonable doubt and presumption of innocence, and that counsel might ask them if they were prejudiced against either of said laws. Upon the counsel’s refusal to adopt such procedure the court stated to the members of the jury that they were to presume that the accused was not guilty until his guilt was proved by legal and competent evidence beyond a reasonable doubt, and that their oaths as jurors would bind them to obey the law; that if any of them were prejudiced against the law of reasonable doubt or presumption of innocence, or if upon that subject there was any hesitation upon the part of any of the jurors, they should indicate it. As the bill is understood, it reflects the complaint of the action of the court in refusing to allow counsel to ask each of the jurors whether he was in favor of the presumption of innocence and reasonable doubt. The bill does not manifest the complaint of the refusal of the court to permit' each of the jurors to state, in response to a proper question, whether he would accord or deny the benefit of the law on the-presumption of innocence and reasonable doubt. As the matter is presented, the procedure followed is not deemed such as to warrant a reversal of the judgment.

Nothing in the decision of this case is intended to change or modify the announcement of this court touching the respective rights of court and counsel in the selection of the jury panel, as reflected by the opinions of this court in the eases of Kerley v. State, 89 Tex. Cr. R. 199, 230 S. W. 163; Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Barnes v. State (Tex. Cr. App.) 88 S. W. 805; Gilmore v. State, 37 Tex. Cr. R. 81, 38 S. W. 787; Plair v. State, 102 Tex. Cr. R. 628, 279 S. W. 267; and Ward v. State (Tex. Cr. App.) 31 S.W.(2d) 638. The right of the accused for such purposes to interrogate the individual juror is, in the mind of the writer, not open to question; nor is the judicial discretion of the court to control the extent of the examination and limit it to proper questions debatable. As stated above, an inquiry, as in the present case, as to whether the jurors are in favor of a general law of the state is not deemed a proper question.

From bill No. 6, as qualified, it appears that in his argument to the jury counsel for the appellant said that “a hard-working negro of good reputation' should not be convicted on the evidence in this case.” In reply state’s counsel said: “The defendant’s reputation is not good. If it were he would not be hanging around such a place.”

The court refused to instruct the jury to disregard the argument of state’s counsel mentioned. The bill does not inform this court whether the appellant’s reputation was an issue in the case or whether there was testimony upon the subject. Neither does the bill disclose to what reference was made by counsel for the state in using the language “hanging around such a place.”.

A further discussion than that made in the original opinion of the other matters of which the appellant complains is unnecessary.

The motion for rehearing is overruled.

On Second Motion for Rehearing.

In his application for leave to file a second motion for rehearing, the appellant complains that bill of exception No. 3 was overlooked. The witnesses Brand and Barring-ton were under the rule. Brand testified for the state that thg sale took place in the afternoon. He was excused, and Barrington was called. He also testified that the sale took place in the afternoon. On cross-examination, the witness testified that he did not recollect telling the appellant’s counsel that the sale took place at about 11 o’clock in the morning.. , Appellant’s counsel then asked Bar-.rington if he would now say that the sale did not take place at 11 o’clock in the morning. The witness replied, “I will say to you I was not positive whether it was morning or afternoon.” Appellant’s counsel then said, “Do you now swear to the jury that it did not take place in the morning at eleven o’clock?” The objection that the witness had given an answer to the question was sustained. Apparently the witness had answered the question. We think the bill shows no error. We will add that the bill fails to show the materiality of the inquiry.

The application to file a second motion for rehearing is denied.


author: LATTIMORE, J.

text:
    STRAYLEY v. STATE.
    No. 13878.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    Rehearing Denied March 18, 1931.
    McGaugh & Darroch, of Brownwood, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

The facts .support the verdict. Same show that upon permission officers searched appellant’s car and found therein three half-gallon jars of Whisky. Appellant testified that he had same for his own personal use and for medicine for his wife. These theories were pertinently submitted and solved by the jury adversely to appellant’s contention.

We find in the record two bills of exception each complaining of argument made in behalf of the state. The first complaint is of the argument to the effect that appellant did not need to drive from Waco to San Saba in order to get liquor for his own use or for medical purposes, that there were any number of bootleggers in the city of Waco from whom he could buy liquor for his own use, and, if he wanted liquor for his wife’s use, he could get it from the doctors in Waco and would not be getting rot gut liquor from bootleggers in San Saba county. This was objected to upon the ground that there was no evidence in the record warranting any argument that appellant made the trip from Waco to San Saba for the purpose of purchasing liquor, and there was no evidence that the defendant could buy liquor from any number of bootleggers in Waco, or that he could obtain prescription liquor in Waco. We find nothing in the bill of exceptions in any wise certifying to the correctness of the facts relied upon in the objections made. For aught the bill shows, the testimony in the case may have been entirely in accord with the claims made by the state’s attorney in his argument. We are unable to see the analogy between this argument and that condemned in Tubb v. State (Tex. Cr. App.) 25 S.W.(2d) 339, 340. The argument objected to in the Tubb Case appeared to be an entire misstatement of the law and in a manner wholly contrary to that stated by the court in his charge to the jury. In the case before us, the discussion was as to facts, and,, as observed, there is no showing as to these facts.

The argument complained of in the second bill of exceptions, if we understand same, consisted only of an expression of the conclusion of the state’s attorney that the jury would have a right to convict upon proof of possession of more than a quart of intoxicating liquor, even though the accused should have claimed that he possessed same for his own use or for medicine. We see no reason for doubting the correctness of such argument.

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


author: MARTIN, J.

text:
    REASONER v. STATE.
    No. 13770.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1930.
    Rehearing Denied March 18, 1931.
    MeGaugh & Darroch, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, two years in the penitentiary.

Witnesses Charles Andrews and Wes Richardson jointly occupied a building in the town of Brownwood; the latter subrenting from the former and operating in said building a repair shop located in a small space cut off from the remainder of the room by a railing. This room was entered in the nighttime and a pistol then in the custody of Wes Richardson for repairs was stolen therefrom. Early the next morning after the burglary at night, appellant was in possession of a pistol on the streets of Brownwood, which was identified as having come from the burglarized premises. Some few days after this, the exact time not appearing, appellant made a statement to an officer that he had purchased this pistol.

It is insisted that there is a fatal variance between the allegations of the indictment and the proof offei-ed, In that the indictment alleges that the house in question was occupied and controlled by Wes Richardson, while the proof shows that it was owned exclusively and controlled by Charles E. Andrews. We regard the evidence as conclusively showing that the room in question was jointly occupied and controlled by the two. Article 402, C. O. P., provides in part: “Where one person owns the property, and another person has the possession of the same, the own- • ership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in ail or either of them.”

This article'refers not only to a technical joint possession, but as well to a case where the parties exercise a joint or common possession of the property. Bailey v. State, 50 Tex. Cr. R. 398, 97 S. W. 694. See algo Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349; Russell v. State, 86 Tex. Cr. R. 580, 218 S. W. 1051.

Nor was there any error in the state proving want of consent in Charles E. Andrews, who was not named in the indictment. Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585; Alsup v. State, 69 Tex. Cr. App. 117, 153 S. W. 624, 627; Branch’s P. C. § 2345.

The exact status of appellant’s explanation is involved in some doubt. The court, however, gave the appellant the benefit of a defensive charge upon explanation made by the appellant of his possession of the pistol to the effect that, if the jury believed it was reasonable, consistent with his innocence, and probably true, to aquit. The real defense was that he had purchased the pistol and same should have been affirmatively charged, but there was no exception to the court’s failure to give this charge, nor do we find any special charge correctly presenting such issue. It is stated by Mr. Branch in his Penal Code; “If the trial court is bent on charging on ‘recent possession and explanation,’ the following form is as nearly correct as can be devised under the authorities.” This is followed by a form of charge. See Branch’s P. C. § 2465. It is further stated in this paragraph; “An explanation is of no consequence to either side unless it involves some defense; hence an affirmative charge on the defense involved in the explanation is all that is required and is the safest and fairest way of submitting the issue to the jury.” See McWhorter v. State, 11 Tex. App. 585; Mathews v. State, 32 Tex. Cr. R. 355, 23 S. W. 690.

It is further insisted that the charge given was error because it failed to charge the jury to acquit unless the state had proven the falsity of the explanation given by defendant. This is not a correct proposition of law. No such charge is demanded in this character of cases. Appellant undoubtedly had in mind those cases holding such a charge necessary where the state itself has introduced the confession of defendant containing defensive matter and relies in whole or in most part upon such a confession for a conviction. While the defense of appellant should have been submitted in- a different manner, the error, if any there was, is not properly presented here for review. We are not to be understood, however, as holding that such an error if it had been presented properly would operate to reverse the ease under the instant facts.

While the testimony is regarded as being meagerly sufficient, we are not prepared •to say that the verdict of the jury was without evidence to support it. In this case the state proved that the burglary was committed by some one, and that defendant was a few hours thereafter found in possession of stolen property from the burglarized premises, and, the jury having found appellant guilty and such finding having been approved by the trial court, it is our duty, under the authorities, to sustain the conviction on appeal, there not appearing any facts or circumstances which in our opinion are sufficient to overcome the • conclusion of guilt based on the above facts. See Branch’s P. C. § 2346; Payne v. State, 21 Tex. App. 184, 17 S. W. 463; Morgan v. State, 25 Tex. App. 513, 8 S. W. 487.

Finding no error in the record, 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.