text:
    WHITE v. STATE.
    No. 13889.

    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.

      Baker & Parish, of Ballinger, and Baker & Baker, of Coleman, for appellant.
    Lloyd W. TVavidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of seed cotton of the value of $35; the punishment, a fine of $50 and thirty days’ confinement in jail.

I. G. Holloway lost approximately $35 worth of seed cotton out of his wagon. An accomplice witness testified to going with appellant to the wagon and stealing the seed cotton. The state offered in evidence appellant’s written confession, wherein he admitted his guilt. Testifying in his own behalf, appellant denied any ¡participation in the theft of the seed cotton and declared that the officers induced him to make the confession. He testified that the officers took him to the sheriff’s office, where they told him that they knéw he was guilty of stealing the seed cotton ; that he denied his guilt; that the officers told him that they had two boys in jail who had made statements that they had helped him (appellant) steal the cotton, and that they also had other eyewitnesses to prove it; that he again told them that he had nothing to do with the transaction; that the officers then told him that he also had a charge against him of transporting intoxicating liquor, which they would dismiss if he would pay a $50 fine for theft of the seed cotton; that they stated to him that it was a penitentiary offense to steal any amount of seed cotton, but that if he would plead guilty they would let him out with a fine; that he finally told the officers that'he was not guilty but that he would rather pay a $50 fine than, have a felony charge against him; ■ that he then made the confession. The officers denied the matters testified to by appellant.

Appellant objected to the charge of the court for its failure to submit to the jury an instruction that if they had a reasonable doubt as to whether the confession was freely and voluntarily made, to disregard it. A written requested instruction covering the issue was submitted to the court. The state’s attorney before this court expresses the opinion that the trial court fell into error in declining to submit the issue. We are constrained to hold that the issue was raised. The charge should have been given. Branch’s Annotated Penal Code, § 75; Sparks v. State, 34 Tex. Cr. R. 88, 29 S. W. 264; Paris v. State, 35 Tex. Cr. R. 93, 31 S. W. 855; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130.

Over proper objection, the court permitted the state to prove by its witness Tub-berville that appellant stated to him, after they had been placed in jail, that he had told the officers everything about'taking the cotton except where it had been placed. The state also proved by the sheriff’s wife, over appellant’s objection, that she heard appellant and Tubberville talking about the cotton while they were under arrest and in jail, and that appellant stated that he had told the officers everything about taking the cotton except the place where it had been hidden. Under the terms of article 727, C. C. P., the objection was well taken. Holmes v. State, 100 Tex. Cr. R. 635, 273 S. W. 849; Patella v. State, 106 Tex. Cr. R. 652, 294 S. W. 571.

The judgment is reversed, and the cause remanded.

PER OURIAM.

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.


source: Caselaw Access Project

author: LATTIMORE, J. HAWKINS, J.

license: Public Domain

text:
    HOSTETTER v. STATE.
    No. 13896.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1931.
    Rehearing Denied March 11, 1931.

      C. P. Hubbeart, of Big 'Lake, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction in the county court of Reagan county as a delinquent child; punishment, ■five years in the State Reform School for Boys at Gatesville.

Our attention is called by our state’s attorney with this court to the fact that this record contains no notice of appeal. It is provided by our statute that thi§ character of case is in procedure a criminal case, and we have held same to be governed by the rules prescribed in that class of cases. A prerequisite to this court taking jurisdiction of an appealed case of this kind is that notice of appeal must be given and entered of record. None appearing, the appeal will be dismissed.

On Motion to Extend Time to Perfect Record.

HAWKINS, J.

The appeal was dismissed on the 21st day of January because no notice of appeal appeared in the record. On February 5th appellant filed in this court a request for extension of time to perfect the record, basing the request upon an averment that notice of the disposition of the case was misdirected and was delayed in reaching him. There is no showing in the motion that notice of appeal was in fact given, and no facts stated which would indicate that any further delay would avail appellant anything. Up to this time no supplemental transcript has been filed showing any effort to bring the ease within article' 827, C. C. P. (1925) regarding the entry of notice of appeal.

Under the circumstances, we do not feel authorized to grant appellant’s motion, and the same is overruled.


text:
    McCLEARY v. STATE.
    No. 13658.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1930.
    Rehearing Denied March 18, 1931.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Appellant’s motion for new trial was overruled on March 15, 1930, and as a part of the order then made the court granted to appellant “the statutory time” in which to file his bills of exception. Under the terms of articie 760, O. C. P., the statutory time for filing such bills is thirty days from the adjournment of the trial term of the court. Said term ended March 22,1930. The bills of exception herein appear to have been filed May 13, 1930. There appears in the record an undated order extending the time for filing such bills. There is no showing'in the record either by any file mark upon this extension order or any other showing that this order was made within thirty days after the adjournment of court. The trial court is not authorized to extend the time for filing bills of exception after the time already allowed, either by order or by statute, has expired. We cannot consider these bills of exception in this condition. Rocha v. State (Tex. Cr. App.) 27 S.W.(2d) 823.

The officers found appellant with eight or nine quarts of whisky in his ear. The defensive theory was that same was being transported for medicinal purposes, and the law applicable was fully and fairly submitted in the ' charge. The jury have passed on the issues of fact and decided them adversely to appellant.

The judgment will he affirmed.

HAWKINS,' X, absent.

On Motion for Rehearing.

HAWKINS, J.

On further deliberation, the majority of the court are of opinion that an order entered by the trial court reciting that “the statutory time” is allowed to file bills of exception and statement of facts ought not to be construed as limiting such time to the thirty days allowed by article 760, O. O. P., independent of an extension order, where the record fails to show otherwise that it was the court’s intention to limit the filing within said thirty days. We think such holding in the original opinion in this case and in Logan v. State (Tex. Cr. App.) 27 S.W.(2d) 171, is erroneous.

Whether the bills of exception in the present record should be considered seems to turn upon another point; hence it is not necessary-to elaborate the reasons supporting our con-elusion in the matter mentioned. Our Brother LATTIMORE adheres to the views expressed by him in the Logan Case and in the original opinion herein. We suggest that it would be much more satisfactory if the extension orders were more definite.

The intention of the trial court ought always be given effect if th.at intention is discoverable from the record. The undated order mentioned in the original opinion did undertake to extend the time for filing the bills beyond the thirty-day period. It is plain from such effort that the court had not by the use of the term “statutory time” in the order theretofore made understood that he had extended the time for filing bills beyond the thirty-day period. If he had understood his former order to have that effect, it would have been-'useless and unnecessary to do again what he thought had already been done. Prom the record, therefore, we think it clear that the first order was intended to restrict the time for filing bills to the thirty days given by article 760, C. C. P.

The pertinent question here seems to be whether the undated and únfiled subsequent extension order can be given effect for any purpose. It is appellant’s position that, in the absence of an affirmative showing from the record that the extension order was made after the thirty days had expired, this court ought to presume that the trial court would not have made the order of extension at a time when he was unauthorized to do so;. that is, after the expiration of the thirty days.

It has been the consistent holding of this court since Griffin’s Case, 59 Tex. Cr. R. 424, 128 S. W. 1184, that, to be -effective, an order extending the time for filing bills of exception and statement of facts must be made within the time granted by the law or before the expiration of a former extension. It has also been many times held that, where the adjourning date of the trial term was not shown in the transcript, the record could not be considered, because without such adjourning date it would not appear from the record whether the bills of exception had been filed within the proper time. Bennett v. State, 91 Tex. Cr. R. 422, 239 S. W. 951; Mandosa v. State, 88 Tex. Cr. R. 84, 225 S. W. 169; Sherman v. State (Tex. Cr. App.) 28 S.W.(2d) 801.

It has furthermore been held that, although a bill of exception appears in the transcript bearing the trial judge’s approval, still it will not be considered, unless the record shows the date of its filing in the lower court. Oliver v. State, 58 Tex. Cr. R. 50, 124 S. W. 637; Martinez v. State (Tex. Cr. App.) 40 S. W. 280; Childress v. State, 92 Tex. Cr. R. 215, 240 S. W. 1029; Pendelton v. State (Tex. Cr. App.) 26 S.W.(2d) 240. The holdings in the two instances mentioned can be based only upon the'demand that the record must show affirmatively that the bills of exception were filed in the lower court, and also that they were filed within the time required by law. In most of the cases dealing with the subject of extension orders the record affirmatively shows the order was made after the thirty days had expired or after the expiration of time granted by a prior extension order, but, in Elbury v. State (Tex. Cr. App.) 25 S.W.(2d) 846, and in Rocha v. State (Tex. Cr. App.) 27 S.W.(2d) 823, the court was dealing with the same character of order found in the present record; that is, one not dated and bearing no file mark. In both eases the order of extension was held ineffectual. In Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483, 484, is found the following statement:

“Where statements of facts or bills of exception in the' lower court are filed after 30 days from the final judgment, or adjournment for the term, as the case may be [it being under the present statute from notice of appeal], the record itself shall show that such an extension of time was properly granted,by the order of the lower court.”

Unless the record affirmatively' shows the date of the extension order to have been made at a time permitted under the law, it would not show that it was “properly granted.”

The extension order in the present case may or may not have been made before the expiration of the thirty days allowed under article 760, C. C. P. It is undated, and bears no file marls. It is impossible to Isnow from tbe record whether the order was made át a time permitted under the law as construed by this court; hence we must respectfully decline to consider the bills of exception.

The motion for rehearing is overruled.


author: CHRISTIAN, J.

text:
    DE HART v. STATE.
    No. 14175.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Callaway & Callaway, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

It is stated in the recognizance that appellant “stands charged in this court with the offense of unlawful possession of intoxicating liquors,” and that he “has been convicted in this court of the offense of unlawful possession of intoxicating liquors.” There is no such offense known to our statute. Unless appellant possessed the intoxicating liquor for the purpose of sale, his possession thereof did not offend against the laws of Texas (Rev. St. 1925, § 5075). Moore v. State, 112 Tex. Cr. R. 142, 15 S.W.(2d) 617. The recognizance is fatally defective in failing to show that appellant has been convicted of an offense. When the accused is at large, this court is without jurisdiction, in the absence of a proper recognizance or appeal bond. Moore v. State, supra, and authorities cited.

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.

HAWKINS, J., not sitting.


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

text:
    BENOIT v. STATE.
    No. 13890.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied March 18, 1931.

      D. E. O’Eiel and J. A. Veillon, both of Beaumont, 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.

A deputy sheriff armed with a search warrant went to appellant’s home for the purpose of making a search for intoxicating liquor. Before advising appellant of his purpose, the officer told him that he would like to buy a pint of whisky. Appellant said that he had two grades, the best whisky being one and a half dollars a pint. The officer told appellant that he wanted the best, and appellant delivered him the pint of whisky, for which the officer hánded him a $5 bill. The officer then showed appellant his official badge. Appellant said: “You have got me.” Before beginning the search appellant stated to the officer that he had two pints of whisky in the kitchen. The officer immediately instituted a search of the house, with the result that he found the two pints of whisky where appellant had stated he would find them, and also ten empty pint bottles. The foregoing facts were testified to by the officer.

Appellant testified, in substance, that he delivered a pint of whisky to the officer, but received no money therefor; it being his intention to give the liquor to the officer. He denied that he had sold intoxicating liquor. He further testified that when the officer showed him his badge he went with him and showed him where he could find the other two pints of whisky; that he did not know whether the officer found any empty bottles in his house, and did not believe there were any empty bottles there at the time the search was made.

In an effort to impeach appellant, the state offered in evidence his testimony taken at the examining trial, wherein appellant stated that he sold the officer a pint of whisky for one dollar fifty cents.

The only bill of exception found in the record relates to the action of the trial court in permitting the officer to testify that he found two pints of whisky and ten empty pint bottles in appellant’s kitchen; it being urged as a ground of objection that this testimony related to an extraneous and independent offense, which shed no light on the transaction for which appellant was .being tried. It is the general rule that evidence of other crimes committed by the accused' should not be used against him. Nichols v; State, 97 Tex. Cr. R. 174, 260 S. W. 1050. There are exceptions to the rule, one of them being that proof of other offenses is admissible if such proof is a part of the res gestae of the offense for which the accused is being tried. Branch’s Annotated Pendí Code, § 2347; Nichols v. State, supra. "We quote from Underhill on Criminal Evidence (3d Ed.) § 152, as follows:

“If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is- itself a detail of the whole criminal scheme.” ■

The whisky was found in appellant’s kitchen immediately after the sale was made to the officer. ■ Proof of its possession wife pant of the res gestee -of the offense for which appellant was being tried. It may be added that appellant testified on his direct examination that he told the officer where to look for the whisky. He admitted that he had it in his possession, but denied that he possessed it for the purpose of sale. In the state of the record, if it should be held that the testimony touching the result of the search was improperly received — and we hold the contrary —-appellant would be in no position to complain.

The judgment is affirmed.

PEE CUEIAM.

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

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that in receiving the evidence of the search of the premises and the discovery of two pints of whisky there was a transgression of the rules of evidence, excluding proof of other offenses. The state’s witness Keeney testified that -he purchased a pint of whisky from the appellant. In his own testimony the appellant admitted that he delivered a pint of whisky to Keeney, but claimed that it was a gift and not for sale; that he had no whisky for sale. Appellant testified that in addition to the whisky which he delivered to Keeney he had two more pints of whisky on hand. This testimony, coming from the appellant, was substantially the same as that against which'the bill of exception is directed and apparently comes under the rule that does not permit a reversal because of the reception of testimony over objection when the same testimony is in evidence without objection. See Bonilla v. State, 108 Tex. Cr. R. 603, 2 S.W.(2d) 248; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Prey v. State, 109 Tex. Cr. R. 168, 3 S. W.(2d) 459; Sifuentes et al. v. State, 109 Tex. Or. R. 398, 5 S.W.(2d) 144; Sherow v. State, 110 Tex. Cr. R. 539, 9 S. W.(2d) 353; Kitchens v. State, 111 Tex. Cr. R. 45, 10 S.W.(2d) 999. However, in the present instance the appellant testified in his own behalf that he made no sale but made a gift of a pint of whisky to the prosecuting witness.

The indictment contained one count charging the sale of whisky and one charging the possession of intoxicating liquor for the purpose of sale. Apparently the testimony to the effect that upon the search there were found in the appellant’s possession two pints of whisky besides the pint delivered to the prosecuting witness was, at the time the evidence . was received, admissible as bearing upon the count charging the possession for the purpose of sale. That count was not submitted to the jury. The complaint, however, is of the reception of evidence of the result of the search and not of the failure of the court to withdraw it.

The motion for rehearing is overruled.


author: LATTIMORE, J.

text:
    CASTANON v. STATE.
    No. 14010.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Webb & Pelts, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. >
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.

The facts show without dispute that on the occasion in question appellant drove a car in which was a jug containing intoxicating liquor, along a public highway. He took the stand in his own bebalf, and defended on the proposition that he borrowed the ear from a man named Garcia, and did not know there was any liquor in the car at the time he so drove same. On cross-examination he admitted that he did not know Garcia very well, also that the car in which said liquor was transported was at the time of trial the car of appellant, and that he had made no effort to obtain the testimony of Garcia, etc. The jury were justified in rejecting the testimony of appellant and concluding him guilty.

Bill of exceptions No. 1 brings forward objections to the testimony of the officer who observed appellant driving the car and discovered the whisky in it and arrested appellant. The grounds of objection are that the facts detailed by the officer were not sufficient to show the existence of probable cause for the search, which was without a warrant. It is needless for us to discuss the lack of merit of the proposition. Appellant took the stand himself, and admitted all the facts thus testified to by the officer. The authorities are too numerous to need citation. When the evidence obtained by a search, the authority for which is questioned, is put before the jury from some other source without objection, the error, if any, of such admission will be of no avail.

The next bill of exceptions contains only the objection of the appellant to a question propounded to him while on the witness stand as to whether he was making Garcia’s deliveries for him that day. We see no merit’ in the bill. It was part of a proper cross-examination of the accused. Another bill complains of the refusal of what would have been tantamount to a peremptory instruction in favor of the accused. The bill presents no error. There was no necessity for the court setting out in Ms charge to the jury the instances in which one may lawfully transport intoxicating liquor. No such defense is interposed in this case,

- The judgment will be affirmed.


author: CALHOUN, J. HAWKINS, J.

text:
    MICHOT v. STATE.
    No. 13428.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    State’s Rehearing Denied March 11, 1931.
    Sid B. Malone, of Beeville, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted in the district court of Live Oak county as an accomplice to the offense of fence cutting, and his punishment assessed at imprisonment in the penitentiary for one year.

The appellant complains of the sufficiency of the second count of the indictment under which the jury found him guilty. The first count of the indictment charged this appellant and one Oscar Johnson jointly as principals with the offense specified in article 1353, P. O.; that is, the offense of willfully and wantonly cutting, injuring, and destroying a fence with the intent to injure the owner thereof. The second count purported to charge this appellant singly as an accomplice to the commission by Oscar Johnson as principal’ of the offense charged in the first count, the elements of this second count being that appellant unlawfully and willfully promised the said Oscar Johnson a reward to secure the commission of the offense by the said Oscar Johnson. The third count purported to so charge this appellant as such accomplice, the elements in this last count being the advising, commanding, and encouraging of said principal to commit the offense charged in the first count. The court submitted the jury all three counts.

The second count in the indictment under which the jury found the appellant guilty reads as follows:'

“And the Grand Jurors aforesaid, upon their oaths aforesaid in and to said Court do further present that Eugene H. Michot on or about the 17th day of June, 1929, prior to the commission of said offense by the said Oscar Johnson as aforesaid in the County and State aforesaid, did unlawfully and wilfully promise the said Oscar Johnson a reward, favor and inducement, to-wit: Did promise the said Oscar Johnson the sum of Ten Dollars in order to secure the commission of said offense by the said Oscar Johnson, the said Eugene H. Michot not being present at the commission of said offense by the said Oscar Johnson.”

The appellant contends that said second count is fatally defective, in this: That though it purports to charge the offense of an accomplice to the offense created by árticle 1353, P. O., still said count neither includes nor charges the essential elements constituting the main offense denounced by said .article, nor does said count charge the commission of said main offense by the principal, but merely assumes the commission of the offense by the principal, Oscar Johnson.

This contention we think is correct. The second count of the indictment fails to charge the principal with the crime. A valid indictment should charge the principal with the crime and then the accomplice with the statutory act constituting him an accomplice. This the second count in the indictment fails to do and is therefore fatally defective. Poston v. State, 12 Tex. App. 408; Rix v. State, 33 Tex. Cr. R. 353, 26 S. W. 505; Smith v. State, 21 Tex. App. 107, 17 S. W. 552.

The jury having found the appellant guilty under the second count alone, we presume that they intended to acquit him on the other two counts.

Because of the fatal defect in the account under which he was convicted, the judgment is reversed and cause dismissed.

PER CURIAM.

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

On State's Motion for Rehearing.

HAWKINS, J.

The state files a motion for rehearing, in which it is urged that we were in error in that part of our opinion regarding the indictment attempting to charge appellant as an accomplice in the second count. It is urged that what is said to be a second count should be regarded as a second paragraph of the first count. We think the construction thus insisted on would be entirely illogical. It can scarcely be imagined that the pleader would in the first paragraph charge appellant with being a joint principal with Johnson in cutting the fence, and in a second paragraph of the same count have also attempted to charge appellant, with being an accomplice to himself as a principal.

The motion for rehearing is overruled.


text:
    COSTELLO v. STATE.
    No. 14054.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Perkins & Perkins, of Rusk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Appellant was suspected of being a peddler of whisky. The officers were watching him. He passed by on the street one day where certain officers were with other people, and one of the group said, “I bet he is going after whisky now.” The officers followed appellant, and saw him come' out of the house of one Murphy. They stopped him, searched him, and found on his person three pints of whisky. The officers affirmed upon the trial; that they had some other information regarding appellant, but they declined to divulge same.

We do not believe these officers justified in arresting this appellant without a warrant upon any hypothesis that he was' committing a felony within their view, or that they had probable cause for believing that he was transporting intoxicating liquor,. such as would justify their' searching him. without a warrant. The officers did not testify that they saw any outline of bottles un-. der appellant’s clothes or anything to suggest that he had on his person said intoxicating liquor, other than as above detailed. Appellant was walking along the streets with his hands in his pockets at the time he was. detained. There is no proof that appellant' had engaged to bring whisky to any person, or that he had sold any of same, or that he. had promised to sell same, or that the officers knew any more about the purpose of his journey along the street than as above indicated.

We are constrained to believe the arrest of appellant unwarranted, and that no right of search existed as an incident to a lawful arrest; also that the evidence as to what was found upon appellant’s person as = a result of the search by the officers was subject to the objection made by appellant when this testimony was offered against him upon the trial.

There is no evidence in this record save that of the two officers in question.

For the errors indicated, the judgment will Jae reversed, and the cause remanded.

HAWKINS, J., not sitting.


author: MORROW, P. J.

text:
    RATLIFF v. STATE.
    No. 13995.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Roy F. Formway, of Roby, and Glover En-■gledow, of Olairemont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus■tin, for the State.
   MORROW, P. J.

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

This is the second appeal of this case. See Ratliff v. State, 25 S.W.(2d) 343.

The jury was told that, in order to convict the appellant, the state must prove that the liquor was possessed for the purpose of sale. The court instructed them that the possession by the appellant of more than one quart of intoxicating liquor was prima facie evidence that be possessed it for the purpose of sale, “but the defendant is entitled to introduce evidence showing that he had such liquor in his possession for lawful purposes.” The jury was also instructed that a person had the legal right to possess intoxicating liquor for medicinal purposes; that if the liquor was possessed by the appellant for medicinal purposes, or if there was a reasonable doubt in the minds of the jury upon that subject, they should acquit him. Exception was reserved to the charge because the court failed to instruct the jury touching the appellant’s right to possess the liquor for beverage purposes, and, under the evidence and the facts, the accused was clearly entitled to such ,an instruction. He had been a heavy drinker for fifteen years. He had several quarts of whisky in his possession. The doctrine declared that the appellant’s long habit of drinking whisky could not be suddenly ceased. The instructions given are so framed as to leave the impression upon the jury that, unless the whisky was possessed by the appellant for medicinal purposes, he should be convicted. The facts are not' different from those on the former appeal (Ratliff v. State, supra), and the instructions given upon the present trial are in substance the same as those given upon the former trial.

The judgment is reversed and the cause remanded.


text:
    GARCIA v. STATE.
    No. 13856.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied March 18, 1931.

      L. D. Stroud and Alex F. Cox, both of Bee-ville, for appellant.
    Lloyd W. Davidson, State’s Afty., 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 18 months.

The motion for new trial was overruled on May 5, 1930, at which time notice of appeal was given. The statement of facts and bills of exception were filed August 4, 1930, which was more than 90 days from the date notice of appeal was given. Article 760, subdivision 5, Code of Criminal Procedure, provides that the time for filing statement of facts and bills of exception “shall not be so extended as to delay the filing thereof within ninety days from the date the notice of appeal is given.” Smith v. State (Tex. Cr. App.) 27 S.W.(2d) 217, and authorities cited.

No question being presented for review, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

In deference to the affidavit of the appellant’s counsel setting up facts upon which he contends that the bills of exception and statement of facts should be considered, we have examined the documents and make upon them the following comments: Acting under a search warrant, the officers found in the house and on the premises of- the appellant something over two gallons of whisky and a number of bottles and containers. Some of them bore the odor of whisky. The appellant admitted the ownership of the whisky. He introduced no testimony.

Bill of exception No. 1 contains more than twenty pages of typewritten matter, most of which is the reproduction of the stenographer’s notes in question and answer form. The bill is accompanied by no certificate of the trial judge that the preparation of the bill in question and answer form was necessary to illustrate the controverted point. The statute forbids the consideration of such a bill in the absence of a certificate of the trial judge showing the necessity for the procedure. See article 760, C. C. P., subd. 3; also Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029; Vernon’s Ann. Tex. C. C. P., vol. 2, p. 368, where many cases are collated upon the subject.

From that part of the bill which is not in question and answer form, it is made evident that the appellant is complaining of the sufficiency of the search warrant and the affidavit upon which it is based. Neither the affidavit nor the search warrant is set out in the bill either in substance or in detail. See Morgan v. State (Tex. Cr. App.) 27 S.W.(2d) 208, and cases there cited ; also Texas Jurisprudence, vol. 4, §§ 212-217. This court is without knowledge of their contents and manifestly would be without data upon which to appraise their sufficiency. We gather from the bill that it was an effort to attack the affidavit upon evidence not apparent upon the face of the affidavit. It seems fchdt the contention made was that the makers of the affidavit did not sign it, though the contrary is shown on the face of the affidavit. As qualified, the bill states affirmatively that the testimony showed that it was signed by the makers of the affidavit. The qualification controls the bill.

Bill No. 2 reflects an objection by the appellant to the testimony of the officers acquired by virtue of the search warrant. The bill fails to set out, either in detail or in substance, the search warrant, and also fails to -set out the testimony against the receipt of which the objection is addressed. See Tex. Jur. vol. 4, § 212.

Bill No. 3 challenges the ruling of the court in the receipt of testimony of an unnamed witness upon the ground that it was a declaration made in the absence of the accused. The bill fails, by any specific statement, po show that the appellant was absent and also fails to set out, in whole or in substance, the testimony given by the witness.

The evidence is sufficient to support the verdict. No error justifying a reversal has been perceived or pointed out.

The motion for rehearing is overruled.


author: ■ CALHOUN, J.

text:
    ROBIE v. STATE.
    No. 14073.
    Court of Criminal Appeals of Texas.
    Jan. 14, 1931.
    Rehearing Denied March 18, 1931.
    Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ■ CALHOUN, J.

Conviction for having and possessing a still and equipment for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

The appellant raises the question of the sufficiency of the evidence and the question of the admissibility of the evidence offered by the state. The evidence is undisputed, and shows the following facts:

Appellant had under lease a farm consisting of about 740 acres. There were various' sets of improvements on the place. Appellant worked about 300 acres. He resided in what was termed the “main house” or “dwelling” on the 740 acres. Some three or four hundred yards distant from this house was what was called in the evidence an “old house.” It was not in any manner used by the appellant in connection with the residence. The facts showed that no one occupied same as a residence- or that it was in any manner at the time being used and occupied either by the appellant or any one else as a private residence or for other purposes. The officers, when they searched the house, found all the windows were nailed over with boards on the outside and sacks tacked up on the inside of the windows. There was no furniture in said old house. The officers found in said house nine round tanks made out of sheet iron. They had been emptied out, and they showed signs of there having been something in them which had been poured out the front door, corn chops and sugar where it ran off. The sheriff also testified that he also found in said house a horn or spout for a still; that he found also a burner and a brick furnace where a still had been sitting, and that the burner was on top of the brick, and that there was nothing else in the house. A barrel was found at the outside of the door, and a coil was found about 50 feet out in the mesquite from the house. The evidence further showed from the testimony of the witness W. A. Peterson, deputy sheriff, that he' went with Sheriff Hughes, and that he found a copper still and a worm; that he found said still and worm about 125 yards west of the old house searched, and that the still was on the ground and had brush piled over it, and that there was a trail leading from the old house west to where the appellant lived; that he carried this still to the old house, where the tanks were, and that he and the Sheriff brought them to town, and that they still had them at the jail; that the nine tanks they found at the old house had a little stuff in the bottom of the tanks, and that by stuff he meant mash. The still and the coil were offered in evidence.

The appellant offered no evidence except the testimony of J. C. Gist, who testified that he owned the farm situated about 3 miles northwest of the town of Eula; -that there were about 740 acres in the place; that he had leased 10 acres in the southeast corner of said tract of land to the Magnolia Pipe Line Company; that said tract was fenced off separately, and that the rest was leased to the appellant; that the appellant paid money rent on the pasture and rent of one-third and one-fourth on the balance of the farm, and that there were about 300 acres in cultivation ; that the house where the appellant lived is an entirely separate and distinct set of improvements from the house where the officers made the search, and that the house searched was a right smart little piece from the house in which appellant lived; -that they were not connected with one another; that “at this old house where they found the still, there is nothing in the world but just a house, built kinda for a barn; just a kind of a shed to it. It is just what I call an out-house on the place. I call it a rent house. When I lived there I used it-for a rent house.” The appellant had charge of this house. “He had the care, custody and control of it. He got his water right there in the yard where he lived. There is a spring up there at the other house. There are two stock springs up there.”

The peace officers, when they went to the premises of appellant, had a search warrant which authorized them to search the residence, outhouses, garage, and cellar of B. E. Robie on the J. 0. Gist farm, located about three miles northwest of Eula in Callahan county, Tex. The evidence shows that they did not search, or attempt to search, the residence of appellant in which he was living or any of the outhouses about the residence. Under the law, the authority given the officers under such search warrant was limited to the search of the premises described therein, and the search warrant describing said premises as the residence of appellant would not be authority for searching the residence or any other part of the premises, if connected with the residence under and by virtue of said search warrant alone. The description of the place in the affidavit limits and controls the description in the warrant. McTyre v. State, 113 Tex. Cr. R. 31, 19 S.W.(2d) 49.

Was the place where the equipment was found so situated as that á' search warrant was necessary to search same?

Appellant seems to contend that article 1, § 9, of the Constitution of Texas, which grants security of his possessions from all unreasonable searches and seizures, and article 4, C. C. P. (1925), because it applied to the entire property under his control, were violated by the trial court when it admitted the evidence of the officers above related. This contention of the appellant has been held adversely against -him by this court in the case of Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W. (2d) 350, in an-able and exhaustive opinion by Presiding Judge Morrow, and this opinion has been followed by this court in the ease of Worth v. State, 111 Tex. Cr. R. 288, 12 S.W.(2d) 582. In the case of McTyre v. State, 113 Tex. Cr. R. 31, 19 S.W.(2d) 49, it was held that search of Tyoods, fields, ravines, or open spaces not connected with the place of business or dwelling house owned 'by the same individual, though without a warrant, was not unreasonable. Such is the holding in the case of Wolf v. State, above cited, and Worth v. State, above cited. Also Turner v. State (Tex. Cr. App.) 20 S.W.(2d) 764. In the case of Greenwood v. State, 110 Tex. Cr. R. 478, 9 S.W.(2d) 352, 353, the próof showed-that the house which was searched without a search warrant was an outhouse or cotton house on a farm, not a private residence, and that the defendant did not reside there. It is true that the original affirmance was upon the ground that the officers saw the still, the mash and barrels through an open door, and that the appellant in that case was sitting near some jugs and the still, and that the officers had the right to-search said house, regardless of any search warrant, by reason of an offense committed in the view of the officers, but, in passing upon, motion for rehearing, Judge Morrow held, as an additional reason why said motion for rehearing should be overruled, that “the place in which the offense was committed was not the residence nor the place of business of the appellant, nor does it appear that its proximity to his residence or place of business -was such as to-make it necessary that the officer searching it possess a search warrant” — citing Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W.(2d) 350; Brent v. Commonwealth, 194 Ky. 504, 240 SW. 45, 46; State v. Zugras, 306 Mo. 492, 267 S. W; 804; Cotton v. Commonwealth, 200 Ky. 349, 254 S. W. 1061; Richardson v. Commonwealth, 205 Ky. 434, 266 S. W. 1; Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898. This holding is cited by Judge Eattimore in the case of Turner v. State (Tex, Cr. App.) 20 S.W.(2d) 764, in support of his-holding in that case.

The undisputed evidence in this case showing that the old house searched was some three or four hundred yards distant from the-residence of the appellant, and that said house was not a building being used for any purpose in connection with the residence of the appellant, it therefore was not within the curtilage of the appellant. We hold thatthe-trial court did not err in receiving the evidence offered. The uncontradieted evidence-offered was sufficient to sustain the conviction.

Judgment affirmed.

PER CURIAM.

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


author: HAWKINS, J.

text:
    OTTO v. STATE.
    No. 13909.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Art Schlofman, of Dalhart, and R. H. Be-ville, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

Appellant drove his automobile into Eads’ Garage in Dalhart about 10 or 12 o’clock at night in order to get a light so he could see to do some work on his car. With appellant at the time were O. L. Green, Green’s wife, and some children. While they were in the garage one of the men gave Eads a drink of whisky out of a jar. Eads was under the impression it was appellant who gave him the drink. Eads was a deputy sheriff. He started to jail with the parties in their car. On the way a sack was thrown or kicked out of the car. It was found to contain a half-gall'on jar of whisky and also a broken half-gallon jar. When they got to the jail Green got out of the car. While Eads was trying to get the jailer up to open the jail door appellant drove off with Green’s wife and the children. Later he and Mrs. Green were also taken into custody. All three of them were indicted for transporting intoxicating liquor. Both Green and his wife were used as witnesses by the state. At the trial it was appellant’s claim that he did not throw or kick the whisky out of the car, did not put it in there, and had no knowledge that it was there. On the other hand, it was claimed by the Greens that they did not .throw or kick it out, had not put it in the car, and denied that they had any knowledge it was there.

At appellant’s request the court gave a special charge instructing the jury that, if appellant did not know of the presence of the whisky in the car, he should be acquitted, although he may have been driving the car and in control of it. Bills of exceptions Nos. 1 and 2 complain of the refusal of two other special charges upon the same subject. The court committed no error in refusing them, as appellant’s rights were fully protected by the special charge given.

Bill of exception No. 3 in part reflects that appellant offered to prove that Green had the reputation of handling intoxicating liquor in the community where he resided, and also had the reputation of being a bootlegger. No effort was made to show by this witness that Green’s general reputation for truth and veracity was bad. His veracity could not be attacked by proving his reputation in thd particulars inquired about. Hays v. State, 90 Tex. Cr. R. 355, 234 S.,W. 898; Walker v. State, 105 Tex. Cr. R. 141, 287 S. W. 497.

Bill of exception No. 3 also recites that appellant offered to prove by the witness Cannon that during the time officers were searching for appellant' that Green’s house was ■searched, and that the officers found over the floor of his house intoxicating liquor, where containers had been broken. If this was a provable fact under the circumstances of the present case, it had already gone into the record from the state’s own witness. No issue was made as to'the truth of such testimony; hence the refusal to permit Cannon to testify regarding the same matter would present no error upon which a reversal could be predicated.

By written objection to the charge, appellant complained that the court had . omitted to charge upon accomplice testimony. This presents an error for which the judgment must be reversed. Article 670, P. C. (1925) provides that a purchaser, transporter, or possessor of intoxicating liquor shall not he held to he an accomplice witness; that is, the mere fact that he may have been a purchaser, cotransporter, or copossessor would not characterize him as an accomplice witness. The identical question here presented was passed upon in Durham v. State, 110 Tex. Cr. R. 25, 7 S.W.(2d) 92. It was there recognized that, under said article 670, a cotransporter was not an accomplice witness generally, but the witness Smith in that case, who was a cotransporter with Durham, had been indicted by the state for the same offense charged against Durham, and, by force of the indictment against Smith, he was held to have been an accomplice witness. The reasons for such holding are set out in the opinion in Durham’s Case and also in Lowe’s Case, 98 Tex. Cr. R. 502, 267 S. W. 270. The effect of an indictment against a witness foir the same offense for which accused may be on trial was more recently considered in Herrera v. State (Tex. Cr. App.) 27 S.W.(2d) 211. See, also, Newton v. State, 94 Tex. Cr. R. 291, 250 S. W. 1036; Oates v. State, 48 Tex. Cr. R. 131, 86 S. W. 769; Herring v. State (Tex. Civ. App.) 42 S. W. 301, and Grissman v. State, 93 Tex. Cr. R. 15, 245 S. W. 438. Reverting to the Durham Case, supra, it was before the court three times. The opinion on the first appeal is reported in 106 Tex. Cr. R. 85, 290 S. W. 1092. There it was announced that Smith was an accomplice witness, without stating the reason. The opinion on the second appeal is reported in 110 Tex. Cr. R. 25, 7 S.W.(2d) 92, and shows clearly that Smith was under indictment for the same offense as Durham, and hence article 670, P. C., was not operative. On the third appeal, which is reported in 112 Tex. Cr. R. 395, 16 S.W.(2d) 1092, it was stated in the opinion that, under the terms of article 670, P. G., Smith was not an accomplice witness. Without a close reading of the opinion if might appear to be in conflict with the former holdings in the saíne .case. But it will be noted in the last opinion there is the statement that the indictment against Smith had been dismissed. - This action on the part of the state removed the onus ■of an accomplice witness which the state had placed on him by such indictment, and again rendered operative article 670, P. C. In the present case both Green and Mrs. Green had been indicted for the same offense (transporting the same intoxicating liquor) for which appellant was on trial. Green had pleaded guilty and been given a suspended sentence. He could not be called by appellant to testify by reason of article 711, C. C. P. (1925), being old article 791, which forbids those indicted for the same offense to be used as witnesses-for each other. Majors v. State, 100 Tex. Cr. R. 304, 273 S. W. 267. At the time of the trial the indictment against Mrs. Green was still pending. By reason of the indictments both Green and his wife were accomplice witnesses as a matter of law. Appellant was entitled to have the jury so instructed in response to the objection to the charge for omitting to instruct upon that subject.

Por this error, the judgment must be reversed, and the cause remanded, and it is so ordered.


text:
    JONES v. STATE.
    No. 13805.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    Rehearing Denied March 11, 1931.
    J. S. Bracewell, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of hogs; punishment, two years in the penitentiary.

There are six bills of exception in the record. Each has been carefully considered. It is so well settled by the uniform decisions of this court that a bill will not be held to present error unless such error is made manifest by the recitals of the bill, that we deem it unnecessary to cite authorities. It is not sufficient to set out that the defendant objected to certain testimony or a certain proceeding for reasons which may be set out at little or much length, unless the bill also contain in some way a certificate of the facts relied upon by the appellant as sustaining the objections thus stated and from which this court may know that the matter complained of was erroneous. Each of the bills in this record seems open to the objection that not enough is stated in any of them to enable this court to say therefrom that the matter complained of was erroneous.

The facts are substantially that Mr. Jordy lived on a farm adjoining-one belonging to appellant, who lived in Houston {it the time of the transaction forming the basis of this prosecution. About the first of October Mr. Jordy turned his hogs out on the range. AYhen he went to look for them in the early part of December, seven black hogs said to average around 125 pounds in weight, belonging to the same litter, each marked under-slope in both ears, were missing. Mr. Jordy said that in a barn on the premises of appellant he found “where hogs had been killed and blood was all around on the ground.” He further said that he went over to Rollie Cansler’s house and saw where some hogs had been cleaned, the hair of which hogs was black. He never did see the hogs after they were killed. The state introduced a negro man named York, who testified that in the early part of December appellant and Rollie Cansler came to him and appellant wanted witness to go out and help clean some hogs; •that they went to Rollie Cansler’s house and there cleaned seven black hogs, eáeh marked underslope in both ears; that the heads of the hogs were cut off and left at Cansler’s home, the carcasses of the hogs being carried the night after they were cleaned to Houston. York said he did not know the hogs were stolen but thought to the contrary. Mrs. Cansler, wife of Rollie, testified that on that same day appellant came to her house to see her husband, but she informed him that her husband and Eugene Wofford had gone away somewhere; that appellant waited until her husband and Wofford came back; and that the three of them then went away in a car together, coming back later with the carcasses of some dead hogs. She affirmed that these' carcasses were left at her house, and that Wofford remained there to build a fire around a pot to heat some water; that hex-husband and appellant went away in a car and came back later with a negi-o man and moi'e carcasses of hogs, the total number being seven; that said hogs were black; that they were cleaned at her house, and the heads cut off and left there; that the carcasses were carried away that night somewhere. ' Her mother, who was present, corroborated Mrs. Cansler in most of her testimony, and also said they — apparently referring to appellant and the others — said they bought the hogs from a negro.

Four of the heads of the slain hogs were given to a Mr. Daski, who said that the hair of these hogs was black, and that they were marked with an underslope in each ear, which was the mark of Mr. Jordy, and also that no one else gave said mark in that section but Jordy.

This is the substance of the testimony. While not as satisfactory as it might be, wé are not prepared to say that the jury was not warranted in believing appellant to have been connected with the original taking of the hogs while they were alive.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In a motion which appeals strongly to us by reason of its fairness and understanding of the principles of law controlling in cases of this character, appellant renews his contention that the testimony is not sufficient under the rules of circumstantial evidence to connect him with the original taking of the hogs. It is frankly conceded in the motion that cited cases are of little value because of the varying facts in each case. Notwithstanding this admission, we have carefully examined the cases to which we have been referred'.

About the only general conclusion to be derived therefrom is that it is the duty of this court in its reviewing capacity to deter»mine whether there be any evidence in the record upon which the verdict of the jury might be based. In determining that question the evidence should be viewed in the strongest light from the standpoint of the state to ascertain if it makes the guilt of appellant reasonably certain. Taylor v. State, 87 Tex. Cr. R. 330, 221 S. W. 611; Mason v. State, 108 Tex. Cr. R. 452, 1 S.W.(2d) 283.

Some time in the forenoon" appellant appeared at the home of Rollie Cansler and inquired for him. His wife informed appellant that Rollie and one Wofford had gone away but would soon be back. After they returned appellant and the two others talked together for a time and then the three of them left. When they returned they brought with them some dead hogs. Wofford' remained to build a fire around the pot for the purpose of heating water preparatory to dressing the hogs. Appellant and Cansler again went away. On this trip appellant got the negro-York to aid in dressing the hogs, and they went to the place where appellant had formerly lived, where they got other dead hogs which they also took to Cansler’s. Appellant’s conduct and conversation was evidently such as to impress York with the idea that appellant was the owner of the hogs, for he testified that he thought they belonged to appellant. The trip to Houston with the hogs must already have been in contemplation when appellant first talked to York, because he was promised tha-t he would he taken to Houston. Considering appellant’s activity in the matter, it seems scarcely reasonable to infer that he entered into an unlawful enterprise regarding the hogs which had already been inaugurated by Cansler and Wofford. The most reasonable hypothesis seems to be that the three of them were acting together in the enterprise from its inception and that appellant was one of the original takers of the hogs. We still feel that under the facts the jury was not without evidence upon which to predicate their verdict- and that we would be unauthorized to disturb it.

The motion for rehearing is overruled.


text:
    Ex parte YBARRA.
    No. 14273.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    L. D. Stroud and Ney Wade, both of Bee-ville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

This is an appeal from an order of the district judge of the Thirty-Sixth judicial district remanding appellant to the custody of the sheriff.

The state’s attorney with this court calls attention to the fact that the transcript herein shows to have been delivered by the clerk of the trial court to appellant’s counsel and not to have been sent by said clerk, in the manner prescribed by law, to the clerk of this court. We regret that we cannot consider the transcript under such showing. Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Lowrey v. State, 92 Tex. Cr. R. 311, 244 S. W. 147.

The appeal will he dismissed.

HAWKINS, J., not sitting.


text:
    MORRIS v. STATE.
    No. 14165.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Reynold M. Gardner, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

The record is here without statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.


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

text:
    WHITE v. TAYLOR et al.
    No. 1289-5354.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    E. J. McLeroy, of Center, Fred A. White, of Port Arthur,- and Hitching & Kenna, of Beaumont, for plaintiff in error.
    James M. Sanders and W. W. Lane, both of Center, for defendants in error.
   HARVEY, J.

This suit was brought in the district court of Shelby county, by the plaintiff in error, Fred A. White, against the defendants in error, Boyer Taylor and others. The trial court rendered judgment in favor of the latter, and White sued out a writ of error. The Court of Civil Appeals affirmed this judg-' ment, after having sustained the motion of the defendant in error to strike out the statement of facts which appeared in the record. 11 S.W.(2d) 374, 375. The Supreme Court has granted White’s applicátion for writ of error, on the alleged ground of conflict between the ruling of the Court of Civil Appeals, on the motion to strike out the statement of facts, and that of the Court of Civil Appeals for the Second District in the case of Golden West Oil Company v. Golden Rod Oil Company, 285 S. W. 627.

The facts relevant to the motion to strike out, and the respective contentions of -the parties, are thus stated in the opinion of the Court of Civil Appeals:

“This is an appeal by writ of error. The term of court wherein this case was tried convened February 13, 1928, and adjourned March 23,1928. By law it could not continue in session eight weeks. Final judgment was entered in this case on March 13, 1928. The statement of facts was filed in the trial court June 30th, with the following approval by the trial judge:
“ ‘The above and foregoing 49 pages of typewritten matter having been agreed to by the parties to the above entitled and numbered cause as the statement of facts therein, and having been examined by me and found to be correct, is approved by me and signed as the statement of facts therein. This 22nd day of June, A. D. 1928. R. T. Brown, Judge Fourth Judicial District.’
“No order extending the time of filing was ever requested by plaintiff in error, nor was such an order made by the judge. Plaintiff in error gave due notice of appeal, and duly filed an appeal bond April 11th, but, abandoning his appeal, filed his petition for writ of error and writ of error bond May 14th. Service of citation in error was had on May 14th. On the facts stated, defendants in error have moved to strike out the statement of facts on the ground that it was not duly filed in ac-. cordanee with the provisions of article 2246, Revised Civil Statutes, 1925. Plaintiff in error has offered no excuse for not filing the •statement of facts sooner, nor for his failure to ask and secure an extension of time for filing. By his answer he insists that the statement of facts was duly filed within the time required by article 2246, and the general law regulating the filing of the statement of facts. ' Since his appeal is by writ of error and the statement of facts was filed in time so as not to delay its filing together with the transcript of the record in the appellate court within 90 days from the filing of the writ of error bond, plaintiff in error insists that it was duly filed. He further insists that the 80 days allowed for filing statement of, facts in appeals by writ of error run from the filing of the writ of error bond rather than from and after adjournment of the term of court wherein the case was tried.”

In the case of Golden West Oil Company v. Golden Rod Oil Company, supra, the Court of Civil Appeals at Fort Worth,' under a state of facts the same in material respects as in the instant ca'se, held, in effect, that the approval of a statement of facts by the trial judge implies the granting of an extension of time for filing, as authorized by subdivision 3 of article 2246 of the statutes. That holding has been expressly approved in an opinion written by Judge Ryan of Section B, and adopted by the Supreme Court. Luse v. Gibson, 23 S.W.(2d) 328. Guided largely by those cases, we have concluded that the approval by Judge Brown, of the statement of facts in the instant case, on June 22, 1Q28, implies an extension of time for the filing of the statement of facts to such an extent as would not delay the filing of said statement of facts, together with the transcript of the record, in the appellate court within ninety days after the filing of the writ of error bond, as prescribed by the statute. Since the statement of facts in question was filed in the lower court at such a time as not to delay the filing of the record in the Court of Civil Appeals, the latter court erred in sustaining the motion to strike same.

We therefore recommend that the judgment of the Court of Civil Appeals, affirming the judgment of the trial court, be reversed and that the cause be remanded to the Court of Civil Appeals for .further consideration by that court.

CURETON, C. J.

Judgment- of the Court of Civil Appeals is reversed and the cause remanded to the Court of Civil Appeals for further consideration, as recommended by the Commission of Appeals.

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


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

text:
    ADAMS v. BANKERS’ LIFE CO. et al.
    No. 1204-5561.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    Homer L. Baughman and Samuels, Poster, Brown & McGee, all of Forth Worth, for plaintiff in error.
    Houtchens & Clark and J. H.' Craik, all of Fort Worth, for defendants in error.
   RYAN, J.

This litigation involves the proceeds of a policy of insurance in the amount of $3,000 issued July 24, 1923, by the Bankers’ Life Company on the life of T. J. Adams, Sr., who died on June 22, 1926.

Ida M. Adams, wife of the insured, was named beneficiary in the policy, but under its terms the insured had the right of revocation and changing the beneficiary.

The policy shows indorsements, as follows:

First indorsement:

“Notice received and accepted of the change of beneficial interest herein by the insured, from Ida M. Adams, wife, to Jennie Ethel Adams, daughter, of the insured with the right of revocation. Des Moines, Iowa, March 4, 1924. Bankers Life Company, by G. W. Fowler, Secretary, Attest: L. C. Rima.”

Second indorsement:

“Notice received and accepted of the change of beneficial interest herein by the insured to Ida M. Adams, wife, of the insured with the right of revocation. Des Moines, Iowa, Jul. 1,1925, Bankers Life Company, by G. W. Fowler, Secretary, Attest: H. L. Rhodes.”

Third indorsement:

“Notice received and accepted of the change of beneficial interest herein by the insured to The Administration or Executor of the insured with the right of revocation. Des Moines, Iowa, Jan. 4, 1926. Bankers Life Company, by G. W. Fowler, Secretary, Attest: 33. R. Turby.”

Therefore, at the time of the insured’s death, the policy on its face was payable to the insured’s administrator, or executor, and the proceeds became part of the insured’s estate.

On December 30, 1925, the insured, on a company blank, assigned the policy to Dr. T. H. Westbrook as collateral security for any valid pecuniary claim against the assignor existing at the time of settlement of the policy; the remainder of said policy, if any, being unaffected by the assignment. On the same date, the insured executed formal assignment of the policy to Dr. Westbrook, from which we quote as follows:

«i ⅜ * * consideration therefor being for a certain indebtedness owing by the said Thomas J. Adams, Sr., to the said T. H. Westbrook and for future indebtedness. It being understood and agreed between the parties that said T. H. Westbrook has and will in the future pay the premiums on said insurance policy; the said T. H. Westbrook having waited on said Thomas J. Adams, Sr., as a physician, and the said Thomas J. Adams, Sr., owing to the said T. H. Westbrook for said services and future services which said T. H. Westbrook may render to the said Thomas J. Adams, Sr.
“It being expressly agreed and understood between the parties that said assignment is to secure the said T. H. Westbrook for said services rendered to the said Thomas J. Adams, Sr., during the past, and such services as may be rendered in the future, and the premiums that have been paid by the said T. I-I. West-brook in the past and that may be paid in the future by the said T. H/ Westbrook.
"It being agreed and understood that in the event said Thomas J. Adams, Sr., at any time in the future reimburse the said T. H. West-brook for said premiums which said T. H. Westbrook has paid, and pay him for his services, then said assignment is to become null and void, otherwise to remain in full force and effect. Said T. H. Westbrook hereby agreeing to continue medical aid as he may deem proper and necessary, for and in behalf of the said Thomas J. Adams, Sr., and to keep the premiums on said policy of insurance paid up.”

By holographic will dated May 7, 1926, the insured refers to the insurance policy issued by the Bankers’ Life Company of Des Moines, Iowa, “which was transferred to Dr. T. H. Westbrook to secure a doctor’s bill and for services rendered and to be rendered,” and directs that “all doctor bills and funeral expenses be paid first, then the bill owing to the Natatorium Laundry, and the residue to my wife.” By said will Dr. T. H. Westbrook and the insured’s sister, Mrs. Ben J. Barrow, are appointed “trustees” of his estate, and directed to turn over to his wife all personal property not used to pay the above-named debts, “which are the only debts he desired to be paid.”

Mrs. Ida M. Adams filed this suit in the district court of Tarrant county against the Bankers’ Life Company and Dr. T. H. West-brook for the recovery of the proceeds of said policy and for cancellation of the assignment to Dr. Westbrook and of the change in beneficiary, made by the insured, wherein the insured’s estate was named as such beneficiary instead of her, on the ground that her husband, the insured, was of unsound mind at the time of the change in beneficiary and execution of the assignment, and on the further ground that the assignment was procured by fraud and undue influence on the part of Dr. Westbrook.

Only the insurance company and Dr. West-brook individually were named as defendants in the first amended original petition, on which plaintiff went to trial, and the prayer was for a judgment canceling and anulling the change in beneficiary from “this plaintiff to the estate of Thomas J. Adams, and any assignment from Adams to Dr. T. H. West-brook, and that she be declared to be the beneficiary in said policy of insurance, and have judgment against the defendants for the amount due thereon, with interest, costs of suit and general relief.”

No legal representative, either administrator or executor, of the estate of the deceased insured, was made a party to the suit; neither does the petition allege that no administration was pending on the estate and that there is no necessity therefor.

The insurance company filed general demurrer to plaintiff’s petition, admitted issuance of, and liability under, the policy, tendered the proceeds thereof into court, with the averment that it is informed and believes that proceedings have been commenced in the county court of Tarrant county in the matter of the estate of Thomas J. Adams, Sr., deceased, but that no administrator or executor had as yet qualified or been appointed therein; that if, and when, an executor or administrator is qualified, he should be made a party defendant in this cause, and required to appear and set out the nature of Ms claim, if any, to the fund in controversy.

Defendant Westbrook pleaded in abatement the pendency of proceedings in the county court for administration of Adams’ estate, by reason of which further cognizance of this case should not be taken other than to dismiss or abate the hearing thereon until the county court shall finally dispose of the matters before it in the matter of said estate. The plea in abatement was overruled by the trial court, and the case resolved itself (as well in the Court of Civil Appeals, as in the district court) into a contest hetweeen the plaintiff, Mrs. Ida Adams, who claimed as the original beneficiary named in the policy, on the one hand, and the defendant Westbrook, individually, on the other hand; his contention being that the insured changed the policy for the purpose of securing the payment of a substantial doctor’s bill for services rendered and money advanced to the insured during his last illness. Westbrook’s prayer was that there be adjudicated to him the amount of his debt for services and moneys advanced, and that plaintiff, Mrs. Ida Adams, be estopped from claiming that said assignment is invalid and that he (Westbrook) is not entitled to be paid out of the proceeds of said policy, and from claiming such proceeds in so far as the same may affect his debt. The son and daughter, only surviving children of Adams, disclaimed any interest in the proceeds of the policy, and adopted their mother’s pleadings.

Trial was had before a jury, who found, in answer to the first special issue submitted, that the deceased was of unsound mind at the time he signed the transfer of the policy and assignment introduced in evidence; the trial court accordingly entered its judgment in favor of plaintiff, Mrs. Ida M. Adams, for the recovery of the money deposited in court by the insurance company, less $100 attorney’s fee; that the change of beneficiary and assignment in question be set aside and canceled, that the deceased’s surviving children take nothing; and that Dr. Westbrook pay all costs of suit.

On appeal to the Court of Civil Appeals at Fort Worth [IT S.W.(2d) 116], the judgment of the trial court was reversed,- and the cause remanded for a new trial, on the ground that elements of equity and estoppel were presented, which should have been submitted as issues to the jury, on the theory that Mrs. Adams was estopped and should not be permitted to recover without making compensation out of the proceeds of the policy for the reasonable value of the services and advances so made, Dr. Westbrook having alleged and offered to prove that the deceased was in destitute and necessitous condition, that medical services and advancements of money, including two payments of premiums on the policy involved, constituted necessaries which the wife failed or refused to supply, and which he, with her knowledge, consent, and acquiescence, did furnish, and that the change of beneficiary in the policy, including the assignment thereof, was, with her knowledge and consent, made to secure him in payment for the services performed and cash advanced by him.

The Court of Civil Appeals found that the testimony of defendant tended to support these allegations, and that the trial court refused to submit such issues to the jury. The Court of Civil Appeals did not pass on the plea in abatement or the trial court’.s action in overruling it', although properly assigned as error.

Opinion.

The issue in this case is, To whom Should the proceeds of the policy be paid?

Under the terms of the policy, as changed under the insured’s direction, such proceeds are payable to his executor or administrator. Mrs. Adams contends that, when the insured directed such disposition thereof to he made, he was of unsound mind, and therefore such direction should be given no effect, with the result that she still remains the beneficiary and the proceeds payable to her.

Dr. Westbrook’s claim, if any he has, is against the estate of the insured, and his only claim against the policy is if and when it is adjudged a part of the insured’s estate, and then only in the manner provided by law through its establishment and classification in the probate court, after presentation to, and approval by, the executor or administrator.

If the proceeds of the policy are a part of the insured’s estate, then he may have his lien thereon recognized and established by the probate court in a proper administration of the estate.

. If the proceeds of the policy are not a part of the insured’s estate, but belong to Mrs. Adams, then Dr. Westbrook has no claim or lien thereon, and can collect his claim against her deceased husband only out of whatever may constitute the estate and applicable thereto^

Mrs. Adams’ contest for the proceeds of the policy, therefore, is not with Dr. Westbrook to determine the ownership of the policy, but with her husband’s estate, which can be represented only by an executor or administrator properly appointed by the probate court. Such proceeds belong either to her husband’s estate, by virtue of change in beneficiary of the policy, or to Mrs. Adams, if such change was ineffective because the insured was of unsound mind when he caused such change to be made.

The estate of Thomas J. Adams, Sr., represented by an executor or administrator legally appointed- by the proper probate court. Is an indispensable party to tbis litigation involving the proceeds of such policy; a necessary party is one so vitally interested in the matter that a valid decree cannot he rendered without his presence as a party, Bingham v. Graham. (Tex. Civ. App.) 220 S. W. 105; no effective judgment disposing of the policy and its proceeds can be rendered divesting the insured’s estate thereof, until such efetate through its proper legal representative is before the court trying the issue, Laas v. Seidel, 95 Tex. 442, 67 S. W. 1015; Richardson v. Vaughan, 86 Tex. 93, 23 S. W. 640; Bluitt v. Pearson, 117 Tex. 467, 7 S.W..(2d) 524; Modern Woodmen v. Yanowsky (Tex. Civ. App.) 187 S. W. 728; Townes Texas Pleading (2d Ed.) 258.

The executor or administrator has the right to the possession of the estate (except such as may be exempted by law) as it existed at the death of the testator or intestate, and he must recover such possession and hold such estate in trust to be disposed of according to law, Rev. Giv. Stat. 1925, art. 3314; he is required to collect by suit or otherwise all debts •due the estate, Canfield v. Newman (Tex. Civ. App.) 265 S. W. 1052; McCelvey v. McCelvey, 15 Tex. Civ. App. 105, 38 S. W. 473.

The nonjoinder of the estate through its executor or administrator appointed by the county court of Tarrant county, where an application therefor was then pending [O’Neil v. Norton (Tex. Com. App.) 29 S.W.(2d) 1060, 1061; Cowart v. Miner (Tex. Com. App.) 29 S. W.(2d) 1007], is fatal to the recovery sought; such executor or administrator should be made a party to this suit; the Court of Civil Appeals failed to pass on the question, and disposed of the case apparently on the theory that the insured’s estate is not a necessary party, and that the only parties interested in the policy and its proceeds are Mrs. Adams and Dr. Westbrook.

The nonjoinder of a party necessary to the main issue is fundamental, and requires either a dismissal of the suit or a stay of proceedings until such party can be brought in. This is the' rule, no matter when or how the absence of such party may become apparent. De La Vega v. League, 64 Tex. 205; Buffalo Bayou Ship Channel Co. v. Bruly, 45 Tex. 8.

The .objection of nonjoinder of such a party may be made by plea in abatement, general demurrer, special exception, motion for new trial, suggestion of fundamental error on appeal, or otherwise; whenever it comes to the knowledge of the court, the result must be the same — either the dismissal or stay of the case. Townes Texas Pleading (2d Ed.) p. 288; 1 Tex. Jur. p. 144.

We therefore recommend that the judgment of the district court be reversed and the cause remanded for a new trial m accordance with this opinion, and that the judgment of the Court of Civil Appeals so reversing and remanding be affirmed, but only for the reasons set out herein.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversing that of the district court is affirmed, and the cause remanded for further proceedings in accordance with the recommendations of the Commission of Appeals, as recommended by the Commission of Appeals.

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


author: SHORT, P. J. CURETON, C. J.

text:
    BELL et al. v. WESTERN UNION TELEGRAPH CO.
    No. 1231-5604.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    John L. Dodson, of Del Rio, for plaintiffs in error.

      Henry G. Russell, of Pecos, and Francis R. Stark, of New York City, for defendant in error.
   SHORT, P. J.

The plaintiffs in error filed this suit against the defendant in error, alleging a damage of $2,500, resulting from the negligent failure of the defendant in error to transmit the following telegram:

“October 17, 1928.
“John T. Peavey, 220 Binz Building, Houston Texas.
“Depending on terms and representations made in our correspondence we accept the proposition of trade. Have owner wire confirmation and send his abstracts to me and I will send our abstracts to you for examination. When deeds approved will close. Will pass deeds through John T. Dandridge.
“Ira J. Bell.”

The case was tried to the court alone upon testimony offered by the plaintiffs in error, the defendant in error having offered none. The court filed findings of fact and conclusions of law, after having rendered judgment for the defendant in error. Upon appeal to the Court of Civil Appeals the judgment of the trial court was affirmed. 21 S.W.(2d) 39.

The statement of facts support the material findings of fact, as found in the record filed by the district judge. These findings of fact, in so far as they are material to the question of law presented, are as follows: That the telegram was sent as alleged; that it was not delivered and failure to deliver constituted negligence; that if it had been delivered in due time the trade would have been consummated; that the plaintiffs in error suffered a loss of $2,500 by reason of their failure to consummate the trade, which would have been consummated had the telegram been delivered in due time.

The record further discloses that the agent of the owner of the property located in the city of Houston was expecting to receive from the owners of ranch property, located in Reeves county, an immediate reply either accepting or rejecting the proposition, which the agent had made to them. Upon the other hand, it is also apparent from the record that the owners of the ranch property, after having sent the telegram, were expecting to receive from the owner of the Houston property a message confirming the proposition which had been made by the agent., It is also apparent that the failure of defendant in error to deliver the message sent by the owners of the ranch property created a situation which resulted in a mutual misunderstanding of the parties, and, before this misunderstanding had been cleared up by correspondence, the owner of the Houston property had reached the conclusion that the owners of the ranch property had declined, to accept the proposition made by the agent and had disposed of the property to other parties. It is also in-ferable from the testimony of the owner of the Houston property that he would have confirmed the proposition made by his agent, and that the trade would have been consummated had the message been delivered to the agent without delay, and that this was the real cause of the failure of the parties to consummate the trade. The owners of the ranch property, being without information, requested in the telegram, that the owner of the Houston property confirm the proposition of trade, made by the agent, the reasonable conclusion to be drawn of this situation is that the owner of the Houston property had refused to confirm the acts of his agent. The agent of the owner of the Houston property having failed to receive any reply to his proposition, made to the owners of the ranch property, the owner of the Houston property reasonably concluded that the former had declined to accept the proposition made by the agent. Had the telegram been delivered without delay, no such misunderstanding of the parties would have arisen.

But the trial judge concluded, as a matter of law, that the plaintiffs in error, under the facts found, had a cause of action against the owner of the Houston property, but did not have any against the defendant in error, which view of the law the Court of Civil Appeals concluded was correct, under the following authorities: Telegraph Company v. Killian (Tex. Civ. App.) 1 S.W.(2d) 378; Telegraph Company v. Gardner (Tex. Civ. App.) 278 S. W. 278; Telegraph Company v. Fletcher (Tex. Civ. App.) 208 S. W. 748.

The authorities cited by the Court of Civil Appeals in support of its opinion are not applicable to the facts of this case. In each of the authorities cited, supra, the facts show that the contract between the parties was completed by the filing with the telegraph company of a telegram of unconditional acceptance of an offer, which was made with directions to accept by telegram, which situation resulted in a completion of the contract without reference to the delay of the message of acceptance to the offerer. In this ease the telegram filed with the telegraph company was not an unconditional accept;» anee of the offer made by the agent. There’ is a condition attached to the acceptance. That condition was that the owner of the Houston property should wire to the owners of the ranch property a confirmation of the proposition which had been made by the person assuming to act as the agent of the owner of the Houston property, and, until this condition had been met, the contract was incomplete. Neither party to the transaction, at the time the telegram was filed, under the circumstances, was in a position to compel the other party to complete the contract, for the reason that the contract w'as not a completed one at that time.

The Supreme Court in granting the writ of error in this case, made this notation: "When Bell’s telegram requested confirmation we are inclined to the view that the Telegraph Company was liable for any resulting damages.”

The record in this case shows that the negotiations resulting in the sending of the telegram had been conducted by correspondence between Ira J. Bell, one of the plaintiffs in error, at Pecos, Tex., and one John T. Peavey, at Houston, Tex., the latter being alleged in the petition 'to be the agent of the owner of the Houston property, and the former being the owners of certain ranch lands in Reeves county, Tex., each piece of property being incumbered with a lien. The title to each piece of property is not called in question by the record at the time the telegram was sent. The owners of the ranch property, at the time the telegram was sent, did not know to' whom the Houston property belonged, nor did they know that Peavey was authorized by the owner of the Houston property to consummate the trade. Apparently the purpose of the telegram was to secure confirmation from the owner of the Houston property of the authority of Peavey to make the trade, and apparently the owners of the ranch property desired this confirmation before they were willing to accept, as genuine, the terms and representations made by Peavey in his letters to them, submitting the proposition of trade made by Peavey, and before they would be willing to send their abstract of title to Pea-vey for examination, or to go to the trouble and expense of examining the abstract of title to the Houston property.

The Court of Civil Appeals discloses its idea of the law of this case by the use of this language: “The case made by the .petition shows that Calloway [the owner of the Houston property], acting through his agent, Pea-vey, submitted to appellants an offer to exchange, requesting a reply by wire. This offer appellants accepted by delivering to ap-pellee for transmission and delivery to Pea-vey a telegram of acceptance. Upon this state of facts the contract to exchange was completed by the filing with appellee of the telegram to Peavey, and, for the breach of such contract by Calloway, appellants have a cause of action against Calloway, but none against appellee for negligent delay in the transmission and delivery of the message to Peavey.”

In speaking of a similar situation in Western Union Telegraph Company v. Turner, 94 Tex. 304, 60 S. W. 432,433, the Supreme Court of this state said: “The language of the message was sufficient to suggest that it was intended as the acceptance of an offer involving a business transaction, and to make it the duty of the company, if it desired further information, to request it. Telegraph Co. v. Adams, 75 Tex. 535, 12 S. W. 857, 6 L. R. A. 844 [16 Am. St. Rep. 920], The most that can be said in favor of defendant on this proposition is that it appeared to its agent that the filing of the message, without delivery of it to the addressee, might or might not have the effect of completing a contract; its effect in this regard depending on other facts not disclosed. The obvious purpose of the message was to communicate to those to whom it was addressed notice of the acceptance of an offer, and the party whose rights depended upon the delivery of such notice was entitled to have it properly sent and delivered; and it was wholly immaterial to-the company which party that was. Or, if its action could in any way properly have depended on its knowledge of this fact, it was its duty to seek further information.”

The holding of the Court of Civil Appeals in this case, in substance, is: That the filing of the message by Bell with the agent of defendant’ in error for transmission and delivery to Peavey, the agent of Calloway, closed the contract for the exchange of properties, and Bell’s cause of action is against Calloway, and not against defendant in error for negligent delay in the transmission and delivery of the message to Peavey. This holding of the Court of Civil Appeals, under the facts of this case, is erroneous. A proper construction of the language of the telegram reasonably indicated to the defendant in error that, while there was a business transaction involved and on the eve of consummation, yet the sender of the telegram required, as a prerequisite to the closing of his part of the trade, that the proposition which had previously been made in the correspondence to him by Peavey, who was only acting as the agent of the owner, the reception of a wire from the owner to him confirming what Peavey had represented to him in the correspondence, and it further indicated to the agent of the defendant in’error that, unless this confirmation should be wired to him by the owner of the Houston property, the trade might not be consummated. In other words, the proper construction of the language of the telegram is such that, without this confirmation being received by the plaintiffs in, error, from the owner of the Houston property, the former would not be in a position to enforce a specific performance of the contract against the owner of the Houston property. The minds of the owners of the respective pieces of property had not met at that time.

It is true that, under the facts found by the trial judge and approved by the Court of Civil Appeals, the plaintiffs in error have suffered a loss of $2,500 on account of the failure of the defendant in ierror to discharge its duty as indicated by the language of the message placed in its hands for delivery, but we have not been able to reach the conclusion that the owner of the Houston property had disposed of this property to other parties at the time the contents of the telegram had been delivered. This owner of this property, among other things, testified as follows: “My name is J. O. Calloway. * * * I owned the duplex apartment house located at 4110 and 4112 St. Emanuel Street, Houston, Texas, for a period of time immediately prior to October 20, 1928.” (It will be noted that the telegram was dated October 17, 1928, and the information contained in the telegram was delivered to the agent of the owner of the Houston property six days later.) Speaking of the proposed exchange to which the telegram had reference, the witness says: “The reason the exchange was not made was because I waited for several days to hear from Mr. Bell accepting the proposition that I had made and- having not heard from him within a reasonable time, I contracted with other parties to make a trade of my property; I learned sometime later, however, that the reason that I did not hear from Mr. Bell was because of the non-delivery of the telegram that Mr. Bell had promptly transmitted to Mr. John T. Peavey, but which message was never delivered to Mr. Peavey. I do not now own said apartment house. I waited for several days to hear from Mr. Bell but did not hear from him. I then entered into a contract to trade my property to other parties and have since said time made another trade and disposed of the property.” It will be noticed from an inspection of the testimony of the owner of the Houston property, above quoted, that he is very indefinite as to what he did with reference to his property and to whom he disposed of it, and the date of the transaction, all of which he knew definitely. The telegram was sent on the 17th of October, and, though the telegram was not delivered, a copy of it was received on the 23d of October. If the owner of the Houston property, J. O. Calloway, had not made ⅞ binding contract wjth any one else on the 23d of October, then under the findings of fact by the trial judge he, being in a position to carry out the contract -wRh. the plaintiffs in error, failed to do so. "'Though his testimony leads to the inference that at the time the information contained in the telegram-had been received he had already legally contracted to sell the property to some one else, yet, in view of the general nature of his statements on that subject, and in view of the fact that he had definite information as to the date when he had disposed of the property, and to whom he disposed of it and other information which the court was entitled to have, and which the plaintiffs in error could have elicited from the witness, we are not satisfied that the plaintiffs in error have discharged the burden which the law placed upon them of showing by satisfactory evidence that the defendant in error is liable to pay them the damages resulting from its failure to deliver the telegram promptly on account of the fact that the proximate cause of the damage sustained by the plaintiffs in error was the inexcusable negligence of the defendant in error in failing to deliver the telegram it contracted to deliver.

Such being the state of the record and because of the error of the Court of Civil Appeals heretofore discussed, as well as on account of the failure of the plaintiffs in error to show by testimony evidently within their power, if such testimony in fact existed, that, at the time the contents of the telegram were actually received by the agent of the owner of the Houston property, the latter had at that time justifiably concluded that the plaintiffs in error had declined to make the exchange of property, and in addition thereto that he had made a legally binding contract to dispose of the property to others, we recommend that the judgments of the Court of Civil Appeals and that of the district court be reversed, and that the cause be remanded to the district court for another trial.

CURETON, C. J.

Judgments of the Court of Civil Appeals and district court are both reversed, and cause remanded, as recommended by the Commission of Appeals.

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