author: SPEER, J.

text:
    CRAYTON et al. v. PHILLIPS.
    (Nos. 911-4983.)
    Commission of Appeals of Texas, Section B.
    March 28, 1928.
    1. Limitation of actions @=l82(3) — 'Trespass to' try title @=35(2) — Generally, under general issue following plea of not guilty in trespass to try title, plaintiff may prove any fact authorizing recovery and- defendant any defense thereto, except limitations.
    In general, under general issue following plea of not guilty in trespass to try title, plaintiff may prove any fact authorizing a recovery, and the defendant may prove any defense to the plaintiff’s case, except limitations.
    2. Trespass to try title @=I — Essential nature of proceeding is to try title and recover pos- . session.
    The essential nature of a trespass to try title proceeding is to try title and recover possession.
    3. Trespass to try title @=33 — Liberal rule of pleading applies only to trying title and recovering possession, not as to additional relief.
    Liberal rule of pleading applies to action of trespass to try title within the limitations of such cause of action, that is, within the trying of title and recovery of possession, but beyond such cause of action the rule has no application.
    4. Trespass to try title @=33 — Affirmative relief cannot be granted defendant in trespass to try title, unless specially pleaded.
    In action of trespass to try title, affirmative relief not within the proceedings to try title and to recover possession cannot be granted to defendant, unless specially pleaded.
    5. Evidence @=3432, 461(4) — Parol evidence that grantees gave no consideration, and that . parties intended smaller interests to pass than stated in deeds, held inadmissible.
    Parol evidence that the grantees gave no consideration, and that the grantor and grantees intended a smaller interest to pass than that stated in the deeds, held not admissible in action of trespass to try title, brought by the innocent purchaser at foreclosure sale held pursuant to mortgage given by grantees.
    6. Costs @=234 — Refusal to tax costs against appellee on reforming judgment, appellee’s re-' covery not being affected, held not error.
    Refusal to tax costs against appellee on court’s reforming, though affirming, judgment for appellee as between appellants only, appel-lee’s recovery not being affected in any way by the reformation, held not error.
    7. Partition @= 12(3) — Partition of land of deceased husband’s estate among widow and children held not required, where widow resided on land as her homestead (Const, art. 16, § 52).
    That trial court had not partitioned remaining land of deceased husband’s estate among widow and children in rendering judgment against them for part thereof in action of trespass to try title held not error, since widow resided on land as her homestead, and, under such circumstances, such partition is expressly forbidden by Const, art. 16, § 52.
    ■ Error to Court of Civil Appeals of Third Supreme Judicial District.
    Suit by E. B. Phillips in trespass to try title and for partition against Lizzie Crayton and others. The judgment of the trial court was reformed and affirmed by the Court of Civil Appeals (297 S. W. 888), and defendants bring error.
    Affirmed.
    W. A. Moyrison, of Cameron, for plaintiffs in error.
    E. A. Wallace, of Cameron, and J. W. Garner and E. A. Camp, both of Rochdale, for defendant in error.
   SPEER, J.

The case is thus stated by Justice Blair of the Court of Civil Appeals:

“The suit is one in trespass to try title and for partition of certain lands and arose out of the following facts: After the marriage of Mach and Lizzie Crayton they acquired by separate purchases five contiguous tracts of land in Mi-lam county, aggregating 368 acres. They had seven children, Eelix, H. J., S. M., Jerry, and William Crayton, sons, and two daughters who are now Ada Bailey and Jennie Bradford. By a deed, dated October 10, 1890, Mach Crayton conveyed to his son, Éelix, a designated 40 acres out of the 368 acres. By separate deeds, dated September 24, 1904, ¿lack and LizziA Crayton conveyed to their sons, H. J. and S. M., each a designated 50 acres out of the 368 acres. The above deeds contained covenants of general warranty, but the one to S. M. Cray-ton provided that he should pay grantors during their lifetime an annual stipend of $35, and recited a lien upon the crops raised on the land to secure its payment. Mack Crayton died intestate in 1916, leaving his widow, Lizzie, and their seven children surviving him, and the widow continued to live on the portion of the land not theretofore deeded to the three sons, or on about 228 acres of the original 368 acres. In February, 1917, the son S. M. Crayton died intestate, leaving as survivors his widow, Octavia, and several children, and his widow continued to occupy the 50 acres deeded to him on September 24, 1904. By a general warranty deed, dated March 8, 1917, Lizzie, the widow of Mack Crayton, conveyed to her son William an undivided 50 acres out of the original 368 acres, the deed describing by metes and bounds the original five tracts. By general warranty deed, dated August 3, 1917, Lizzie, the widow of Mack Crayton, and her son, Jerry, conveyed to the sons, William and H. J. Crayton, an undivided 50 acres out of the 368 acres, the deed describing by metes and bounds the original five tracts. By a general warranty deed dated November 17, 1917, Lizzie, the widow of Mack Crayton, joined therein by all of her children, except S. M. Crayton, deceased, conveyed to her son Eelix a designated 10 acres out of the 368 acres. William and H. J. Crayton mortgaged to W. W. Clarke the undivided 100 acres conveyed to them by the deeds dated March 8, 1917, and August 3, 1917, which said undivided 100 acres was later sold to appellee under an order of the district court of Milam, county in satisfaction of the mortgage debt. Appellee then brought this suit in trespass to try title and for partition against the widow, Lizzie Orayton, and her six living children above named, and against Octavia, the widow of the deceased son, S. M. Orayton, and her children. All of the defendants, except Felix Orayton, who made default, answered in the suit either in person or by attorney ad litem, and at the conclusion of the evidence the court instructed the Jury to award to Octavia, widow of S. M. Orayton, and her children, the 50 acres deeded to S. M. Orayton on September 24, 1904, to award to H. J. Oray-ton the 50 acres deeded to him on September 24,1904, to award to Felix Orayton the 50 acres deeded to him by the deeds dated October 10, 1890, and November 17, 1917, to award to ap-pellee an undivided 100 acres out of the original five toacts aggregating 868 acres, after deducting therefrom, the three tracts of 50 acres each specifically awarded as above stated, and to award to the widow, Lizzie Orayton, and her daughters, Ada Bailey and Jennie Bradford, the remainder of the land, and as between ap-pellee and Lizzie Orayton, Ada Bailey, and Jennie Bradford, the remaining 218 acres was ordered partitioned so as to set apart to appellee a ‘100-acre undivided interest’ therein.”

. The Court of Civil Appeals made some slight reformation in the judgment, and affirmed it. 297 S. W. 888.

Lizzie Orayton, Ada Bailey, and Jennie Bradford sought and obtained a writ of error to the judgment of the Court-of Civil Appeals, and they present assignments of error predicated upon the action of the trial court in striking out the testimony of Lizzie Orayton and William Orayton to the effect that the deeds of Lizzie Orayton to William, and to William and Henry Orayton, were without consideration, and were intended by both parties to convey only the inherited interests of the grantees therein.

The contention of plaintiffs in error in support of their assignments is based for the most part upon the recognized liberal rule of pleading under our statute in trespass to try title cases. This action being one of trespass to try title in which the defendants pleaded the general issue and not guilty, it is argued, under this liberal rule, that the evidence stricken out was properly admissible, and should have been considered to defeat the plaintiff’s recovery.

While the rule of pleading is liberal, nevertheless it has its limitations. Generally stated, under the general issue following a plea of not guilty in a trespass to try title case, the plaintiff may prove any fact authorizing a recovery, and the defendant may prove any defense to the plaintiff’s case, except limitations. The essential nature of such a proceeding is to try the title and to recover the possession. This is the cause of action. And, to the limits of such cause of action the liberal rule of pleading applies, but beyond this cause of action the statutory rule has no application. In other words, if, in addition to the cause of action to recover title and possession, there arises the necessity for affirmative relief, such as the cancellation of a deed or the like, there must be special pleading for this injection of a new and different cause of action from the statutory proceeding.,

As early as Ayres v. Duprey, 27 Tex. 593, 86 Am. Dec. 657, it’was held:

“In actions of trespass to try title, the defendant, it is true, is not required to put in any other plea than that of not guilty. The obvious meaning of this is, however, that it is unnecessary for him to file any othef plea, to authorize him to make any defensé applicable to this action; but unquestionably, if he wishes to assert an independent, equitable right, not involved in the issue as to title directly in con-* troversy, he should present the facts by proper averments, and bring the necessary parties before the court to enable it to grant the relief to which he may be entitled.”

In Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596, discussing a judgment in a trespass to try title case, interposed as a plea of res ad judicata, the Supreme Court says:

“This we understand to be the true doctrine, and the principle that all matters are concluded that might have been litigated has not been differently applied by the judgments of this court in cases cited by appellants. The stateT ment has always been made with reference to some matter that was comprehended within the issues in the former action and not concerning causes of action distinct from those before asserted and adjudicated. If, as we have said, the matter now set up by plaintiffs constitutes a different cause of action from that which they formerly sought to maintain, they were not, under the authorities cited, bound to enforce it in their first action. Freeman on Judgments, 256. That it is such we think the decisions of this court leave no doubt. Nothing but evidence of title was admissible or could have been made admissible under the former issues without jhe introduction of a different cause of action (citing Ayres v. Duprey, 27 Tex. 604 [86 Am. Dec. 657] and other cases). The substance of these decisions applicable here is that a right of action to set aside such a deed as that defendants hold, not void, but merely voidable by direct attack and upon equitable terms, cannot be enforced under the pleadings-in the action of trespass to try title. * * * A defendant when sued in trespass to try title may plead not guilty, thus making the issue of title, and may also plead specially such a right as that which plaintiffs here set up; but when he does so lié, in substance, asserts in reconvention a different cause of action against the plaintiff from that which plaintiff asserts against him.”

But the rule just discussed is a rule of pleading, and not one of evidence. If the deeds by Lizzie Orayton needed to be set aside as an impediment to her right to recover, and if an attack had been made in the pleadings, the rule of evidence would forbid the destruction of the deed by parol evidence, except upon a showing of such equity, as would cancel or reform the instrument. Such affirmative relief could be had for mutual mistake in a proper case, hut such relief could not be had as 'against bona fide purchasers, in the absence of notice.

In Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825, a husband conveyed community property to his wife. Subsequently, and after divorce, the wife sued him, claiming the property as her separate estate. The defendant sought to avoid the deed by showing that in making the instrument the purpose was to “keep peace in the family,” and that he did not intend thereby to convey it to her or to make it her separate property, but the intention was that it should remain the community property. The Supreme Court, holding against the husband’s contention, said:

“There can, therefore, be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted consistently with correct principles to show that he did not so intend. The evidence admitted does not come within the rule which sometimes permits the true consideration of an instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature. * * * The statement in the deed from Kahn to his wife is more than the mere statement of a fact. Under the decisions referred to, its legal effect is to show the character of the right to be created by his deed and is as much a contractual recital as any in the instrument, and belongs to that class of particular and contractual recitals which, in deeds, estop the parties from denying them. Another limitation upon the rule is that a grantee in a deed will not be permitted to defeat it as a conveyance by showing that there was no consideration, and the effort here is to defeat the deed as a conveyance of the property to Mrs. Kahn in her separate right, which would be to make it wholly inoperative, since the legal title was already in the community estate. Evidence that no consideration passed would doubtless be admissible where such fact would be of any im-' portance upon the issues of a case, but it could not have the effect of defeating the operation of the deed.”

The deeds from plaintiff in error lizzie Crayton conveyed respectively an undivided 50 acres of land in the five tracts of land mentioned in the statement of the case, and their legal effect thus to vest title in the grantees could not be destroyed or varied under any sort of pleadings upon the testimony stricken out.

It is next complained that the Court of Civil Appeals erred in refusing to charge the costs of appeal against the defendant in error because of the order of that court reforming the judgment concerning the recovery by Octavia Crayton and her children of the 50 acres deeded to S. M. Crayton, deceased. Assuming that the order of the Court of Civil Appeals reforming the judgment was such as would entitle plaintiff in error Lizzie Crayton to her costs in respect to the recovery by Octavia and her children, it does not follow that such costs should be taxed against defendant in error, for the recovery was not by him, and the reformation in nowise affected any judgment recovered by him.

It is next complained that the Court of Civil Appeals erred in not reversing the judgment of the trial court because that court had not partitioned the land amongst the plaintiffs in error Lizzie Crayton, Ada Bailey, and Jennie Bradford. The Court of Civil Appeals did “reform the judgment so as to specifically decree a partion of their respective interests in the land awarded them (plaintiffs in error), and the trial court will instruct the commissioners appointed to make the partition, taking into consideration the homestead interest of Lizzie Crayton.” But it is insisted that this is indefinite and insufficient, and amounts to no partition at all. But, whether the order is subject to the criticism or not, it is certain the assignment of error here can not be sustained.

The plaintiff’s petition sought a partition between the plaintiff and the defendants as a whole. By defendants’ first amended original answer all of the defendants pleaded:

“All these defendants come now and deny that the'plaintiff has any right or interest in or to or the possession of any of said land, but, if it should be held or ascertained that they are mistaken in this, then they pray that, upon final trial, all of said property be partitioned and apportioned between the respective parties hereto as their right may appear, and for all relief and costs of suit that may be proper and appropriate in the premises to do them full justice.”

The amended pleading further alleges: "

“She further shows to the court that during her husband’s lifetime their homestead was erected and maintained on the unsold portion of tract No. 1 described in the plaintiff’s petition, and the unsold portion of tract No. 2 and upon which their dwelling house was then and is now erected and has been continuously occupied as a residence by herself and her former deceased husband for more than 30 continuous years, and is still her homestead, upon which she is now actually residing. * * * That at the death of her said husband she became entitled, and is now entitled, to a homestead exemption of 200 acres, which is not subject to partition, and that her homestead consists of the tract of land surrounding her said residence, and that she is entitled to have the same partitioned and apportioned to her in accordance with law, and she now designates her said homestead, which was in fact the homestead of herself and her said husband during his lifetime, the unsold portion of said first two tracts described in plaintiff’s petition and for sufficient amount out of the tracts joined thereto to make her the said portion of 200 acres and for all relief in relation thereto as may be mete and proper.”

It is thus apparent the answer of the lefendante sets forth facts which negative their right to a partition of the property apportioned to them. Such right of partition is expressly forbidden by the Constitution, art. 16, § 52. But, if this were not,the case, we would nevertheless not be justified in reversing the defendant in error’s recovery or in-taxing him with the costs of a reformation of the judgment in respect to a 'matter in which he asserts and has no interest whatever. It is no concern of his whether plaintiffs in error do or do not partition the land amongst themselves. He has never resisted such right.

All assignments of error should be overruled.

We therefore recommend that the judgment of the Court of Civil Appeals be affirmed.

GURETON, C. J. The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.
      @»For other cases see same topic and KEY-NUMBER in all Key1Numbered Digests and Indexes


source: Caselaw Access Project

author: LEDDY, J.

license: Public Domain

text:
    MONTRIEF & MONTRIEF v. FORT WORTH GAS CO. et al.
    (Motion No. 7999; No. 850-4927.)
    Commission of Appeals of Texas, Section B.
    April 11, 1928.
    1. Trial <§=3351 (2) — Statute does not authorize trial court to determine issue involving complete ground of recovery which was not submitted to jury (Rev. St. 1925, art. 2190).
    Rev. St. 1925, art. 2190, relative to the effect of failure to submit issues to the jury, does not authorize trial .court to .determine an issue involving a complete ground of recovery which has not been submitted to the jury, but applies only to such omitted issues as are incidental to and support issues of fact which are submitted and found by the jury.
    2. Trial <⅜=>351 (2) — Cause of action constituting independent ground of recovery must, in absence of submission to jury and request therefor, be held to have been waived.
    A cause of action, urged by way of cross-action, constituting an independent ground of recovery, which was neither submitted to the jury nor was request for submission made, must be held to have been waived.
    3. Trial 3=3351 (2) — Rendering judgment on cross-action held erroneous, where basic issue was not submitted to.jury.
    Trial court’s rendering judgment on cross-action held, erroneous, where the basic issue was not submitted to, and finding made thereon by, the jury.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    On motion for rehearing. Motion overruled.
    1⅜ former opinion, see 2 S.W.(2d) 276.
    See, also, 297 S. W. 244.
    Thompson & Barwise and B. Y. Thompson, all of Fort Worth, for plaintiffs in error.
    McLean, Scott & Sayers, Capps, Cantey, Hanger & McMahon, and Slay, Simon & Smith, all of Fort Worth, for defendants in error.
   LEDDY, J.

Plaintiffs in error insist in their motion for rehearing that the judgment of the trial court in favor of Henry Bragg against them should be reversed and rendered because the undisputed evidence shows that they were not guilty of negligence, which was the proximate cause of the injury complained of. We are unable to agree with this contention. We think the question as to whether plaintiff in error’s negligence was a proximate cause of Bragg’s injuries, in the state of the evidence, was properly one for the jury.

It is further insisted that the judgment of the trial court should he affirmed as rendered, because the evidence shows as a matter of law that the Fort Worth Gas Company was guilty of active negligence as against merely passive negligence on the part of plaintiffs in error.

Plaintiffs in error by proper plea asserted the above by way of cross-action against its codefendant, the Fort Worth Gas Company. It did not, however, request that such issue be submitted to the jury, notwithstanding it is admitted that the questions of active and passive negligence were disputed matters of fact. It is asserted that the trial court having rendered judgment for them over against their codefendant, a finding in their favor on such issues will be implied, and article 2190, R. S. 1925, is relied on to sustain this position. This article of our statute, under the construction given it by our Supreme Court, does not authorize a trial court to determine an issue involving a complete ground of recovery which has not been submitted to the jury, but only applies to such omitted issues as are incidental to and support the issues of fact which are submitted and found by the jury. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591 (not yet officially reported).

The issue of active and passive negligence constituted an independent ground of recovery. In fact, it was the sole basis of the cross-action in favor of plaintiffs in error against the Fort Worth Gas Company, and inasmuch as the case was being tried to a jury, a failure to request the submission of the issue upon which such cause of action was based was a waiver thereof. Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902; San Antonio Public Service Co. v. Tracy (Tes. Civ. App.) 221 S. W. 637; G. H. & S. A. Ry. Co. v. Price (Tex. Com. App.) 240 S. W. 524.

It follows that we must bold tbe judgment of tbe trial court erroneous, as it was not authorized to render a judgment upon said cross-action until tbe issue upon wbicb it was based was submitted to, and a finding ’ made tbereon, by tbe jury.

The motion for rehearing should be overruled.
      <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CRITZ, J.

text:
    CARL v. SHORE et al.
    (Motions Nos. 7901, 7884; No. 902-4656.)
    Commission of Appeals of Texas, Section A.
    April 11, 1928.
    On motion of C. H. Carl, plaintiff in error, to correct judgment (No. 7901), and also on motion for rehearing by tbe defendants in error (No. 7884).
    For original opinion, see 299 S. W. 860.
    See, also, 284 S. W. 289.
   CRITZ, J.

In our original opinion we stated that O. H. Carl and the 61 defendants in error organized and formed the stock association and partnership under the name of Hereford Sanitarium, each having an equal interest therein. Under the record we should have stated that plaintiff in error and 70 defendants in error' organized the association and partnership. Further, the record shows that the ownership of the association was divided into 63 parts, and that plaintiff was the owner of one sixty-third of the entire capital, and tbe other sixty-two sixty-thirds were owned as follows: Renfro & Sons, a partnership composed of E. Renfro, John Renfro and Cris Renfro, owned one sixty-third ; Smith & Guinn, a partnership composed of C. R. Smith and George Guinn, owned one sixty-third; G. & R. Grocery, a partnership composed of Frank Gyles and James Rutherford, owned one sixty-third; Witherspoon & Kenney, a partnership composed of Verne Witherspoon and E. W. Ken-ney, owned one sixty-third; Foster Bros., a partnership composed of Leonard Foster and Arch Foster, owned a one sixty-third; Jones & McLean, a firm composed of J. B. Jones and Bobo McLean owned one sixty-third, and Brand Publishing Company, a partnership composed of Seth Holman and W. R. Steckman, owned one sixty-third, and the balance of the stock was owned a one sixty-third interest each by tbe other named defendants in error.

We therefore recommend that tbe original judgment heretofore rendered by this court be set aside and a new judgment entered so as to conform to the above findings, and that said judgment further provide for execution as to the proportionately increased liability of all solvent partners on return of unsatisfied execution against insolvent defendants. In all other respects our recommendation is as in the original opinion. '

We have read and carefully considered the motion for rehearing filed herein by the defendants in error, and we still adhere to the views as expressed in our original opinion as corrected above. We therefore recommend that said motion be in all things overruled.


text:
    MALOTT v. CITY OF BROWNSVILLE.
    (Motion No. 8050; No. 818-4853.)
    Commission of Appeals of Texas, Section B.
    April 11, 1928.
    On plaintiff in error’s motion to reform judgment.
    For former opinions, see 298 S. W. 540; 300 S. W. 29.
   SPEER, J.

On motion for rehearing, we recommended that the former r judgment of affirmance be modified so that the judgments of the Court of Civil Appeals (292 S. W. 606) and the trial court in so far as they adjudged the ordinance in question to be valid be reversed and the judgments refusing the writ of injunction sought by plaintiff in error be affirmed ([Tex. Com. App.] 300 S. W. 29). In entering the judgment, however, it was ordered that such judgments “in so far as they adjudged the ordinance in question to be valid, be reversed and here now rendered declaring the said ordinance invalid.” This latter order was not contemplated by the recommendation and indeed is violative of the considerations for which we reversed at that point.

We recommend therefore that the order herein of December 7, 1927, be corrected so as to eliminate therefrom, in connection with the order reversing the judgments adjudging the validity of the ordinance, the words “and here now rendered declaring the said ordinance invalid,” to the end that the validity or invalidity of said ordinance be not adjudged and that the final decision of this case be without prejudice to either party upon that issue, should the matter at any time arise.'


author: ^ CHEISTIAN, J.

text:
    LUCAS v. STATE.
    (No. 11208.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    T. Criminal law <S=o394 — Admitting testimony of manufacturing liquor resulting from search based on affidavit not stating grounds of belief held error (Code Cr. Proc. 1925, art. 727a).
    In prosecution for manufacturing intoxicating liquor, where officers entered dwelling house of accused under search warrant issued upon affidavit made upon information and belief, grounds of belief not being therein exhibited, admission of testimony of officers touching results of search held error under Code Cr. Proc. 1925, art. 727a, providing no evidence obtained in violation of Constitution or laws of state shall be admitted against accused on trial in any criminal case, in view of article 4a.
    2. Intoxicating liquors @=3248' — Warrant to search dwelling, based upon affidavit made upon information and belief, not showing dwelling was used for purpose denounced by statute, held unauthorized (Pen. Code 1925, art. 691).
    Warrant to search private dwelling occupied as, such, based on affidavit made upon information and belief in which there is no given fact, circumstance, or detailed information showing or tending to show that dwelling is used for purpose denounced by Pen. Code 1925, art. 691, is unauthorized, and search thereunder is illegal.
    Commissioners’ Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Jerry Lucas was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. G. Walter, of Yernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ^ CHEISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment confinement in'the penitentiary for one year.

Operating under a search warrant, officers discovered a still in operation in a house occupied by appellant. Although appellant’s wife, who had become sick, was at the home of John Lucas at the time of the raid, we think the record reflects the fact that the house entered by the officers was appellant’s private dwelling. The wife of appellant was, according to one of appellant’s witnesses, staying at the home of John Lucas during her illness.

The affidavit upon which the search warrant was issued was made upon information and belief, and the grounds of belief were not therein exhibited. Appellant timely objected to the testimony of the officers touching the results of the search and excepted to the action of the court in admitting the testimony.

. A warrant to search a private dwelling, occupied as such, based upon an affidavit made upon information and belief in which there is given no fact, circumstance, or detailed information showing or tending to show that the dwelling is used for a purpose denounced by article 691, P. G. 1925, is unauthorized,, and a search thereunder is illegal. Ghapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Ferguson v. State (Tex. Cr. App.) 300 S. W. 69.

- An illegal search is penalized by statute. Article 4a, O. C. P. 1925. Article 727a, O. O. P. 1925, provides:

“No evidence obtained * * * in violation * * * of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

It was error to admit, over appellant’s objection, the testimony of the officers touching the results of the search.

For the error pointed out, the judgment is reversed and the cause remanded.

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


author: MARTIN, J. MARTIN, J.

text:
    FORRESTER v. STATE.
    (No. 10797.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    Rehearing Denied April 11, 1928.
    1. Criminal law <⅜=>1162 — Materiality and prejudicial character of given fact must be measured by relation to entire case.
    The materiality and prejudicial character of a given fact must be measured by its relation to the entire case as, of necessity, it cannot be detached and isolated from all of its surroundings and thus measured to determine its prejudicial character.
    2. Homicide <⅜=>338(1) — Evidence that defendant had separated from wife without procuring divorce prior to living 'with deceased held not prejudicial.
    In prosecution for murder 'where there was evidence of a meretricious relation between defendant and wife of deceased, evidence that defendant had married and separated from his wife prior to his living with deceased and that he had never been divorced held not prejudicial error.
    On Motion for Rehearing.
    3. Criminal law <§=»l 134(10) — Reviewing court will look to evidence produced at trial, in passing .on refusal of continuance.
    Reviewing court will look to evidence produced at trial, in passing on refusal of continuance for absent witness.

      4. Criminal law <@=>595(Os 598(2) — Refusing continuance ' for absent witness in homicide case held not error, in view of materiality of testimony and lack of diligence.
    Trial court’s refusal to grant motion of defendant in murder prosecution for a continuance, for purpose of producing witness who would testify’that shortly after the homicide he carefully observed defendant and saw no blood about his. person or clothing, held not error, where it did not appear that testimony would have changed result of trial, and where, on the whole, diligence was lacking to procure attendance of witnesses.
    5. Homicide <3=300(3) — Charge relative to self-defense held not erroneous since acquittal was not authorized unless defendant believed he was in danger of death or bodily injury (Pen. Code 1925, arts. 1223, 1226).
    Charge relative to defendant’s killing adversary in self-defense held, under Pen. Code 1925, arts. 1223, 1226, not erroneous in that acquittal was not, under such charge, authorized if jury believed deceased attacked defendant, or if jury had reasonable doubt thereof; authorization of acquittal not being proper, in absence of showing defendant’s belief that he was in danger of death or serious bodily injury.
    6. Homicide <3=109 — Law of justifiable homicide requires attack or threatened attack with apparent intent to kill or seriously injure, reasonable grounds for believing attack placed! defendant in danger, and actual belief in danger (Pen.-Code 1925, arts. 1223, ■ 1226).
    ^ The law of justifiable homicide requires, under Pen. Code 1925, arts. 1223, 1226, the co-existence of three things: (1) An attack or threatened attack with apparent intent to kill or do serious bodily injury, as viewed from the defendant’s standpoint. (2) Reasonable grounds for believing that such attack or threatened attack placed defendant in danger of death or serious bodily injury. (3) Actual belief in the existence of such danger.
    7. Homicide <3=276 — Under justifiable homicide defense, attack with deadly weapon leaves to jury only question of defendant’s belief in danger (Pen. Code 1925, arts. 1223, 1226).
    Where attack on defendant with a deadly weapon has been proved, Pen. Code 1925, arts. 1223, 1226, foreclose to court and jury the issue whether attack was made by deceased with intent to kill or do serious bodily injury, as viewed from defendant’s standpoint, ana whether there existed reasonable grounds for believing attack or threatened attack placed defendant in danger of death or serious bodily injury, leaving to jury the issue, on question of justifiable homicide, whether defendant actually believed in the existence of the danger.
    8. Homicide <3=116(30 — Jury must find defendant feared death or serious bodily injury before acquittal on justifiable homicide defense is authorized (Pen. Code 1925, arts. 1223, I226i).
    The jury must find the existence of fear of death or serious bodily injury before an acquittal on the ground of justifiable homicide, pursuant to Pen. Code 1925, arts. 1223, 1226, is authorized.
    9. Criminal law <3=778(2), 1043(2) — Charge on presumption deceased intended to kill defendant held inaccurate, but not reversible, in absence of specific attack.
    * In murder trial, charge to effect that, if jury believed that at time deceased was shot he was making or about to make a violent attack on defendant or another jn defendant’s presence with an iron bar, the law presumes deceased intended to kill defendant or the other person, or both, held inaccurate but not cause for reversal, where not attacked on grounds specified.
    10. Criminal law <3=1170½( I) — Witness’ non-responsive answer relative to appearance of relationship between defendant and deceased’s wife held not ground for reversal.
    Where jury had heard defendant admit that he and deceased’s wife slept in hotel room together, nonresponsive answer of the wife’s father that things did not look right to him in defendant’s and the wife’s relationship held not prejudicial, where answer was stricken as not responsive and no special charge was asked to disregard it.
    Commissioner’s Decision.
    Appeal from District Court, Nolan County; W. P. Leslie, Judge.
    J. W. Forrester was convicted of murder, and he appeals.
    Affirmed.
    Stinson, Coombes & Brooks, of Abilene, John J. Ford, of Sweetwater, L. B. Allen, of Roby, and W. W. Hair, of Abilene, for appellant.
    Beall, Beall, & Beall, of Sweetwater, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MARTIN, J.

Offense, murder; punishment, 25 years in the penitentiary.

A former appeal of this case is reported in 93 Tex. Cr. R. 415, 248 S. W. 40, 26 A. L. R. 537, where there will be found a full statement of the facts.

Appellant strenuously insists that there was error in forcing the appellant to testify, while a witness for himself; that he had been married and separated from his wife prior to his living with deceased, and that he had never been divorced. This question would appear serious upon a casual reading of the authorities. Due to the rather frequent recurrence of this particular question and the'present condition of the authorities with reference thereto, we have endeavored to give it a painstaking investigation.

There are two lines of authorities dealing with this exact question, one in homicide and assault cases, and the other in rape cases. We will briefly review these.

In Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380, appellant was indicted for aggravated assault upon his wife, and the court, speaking through Judge Hurt, held that testimony was inadmissible that he had been married and divorced as many as four times, the court observing that it may have been prejudicial in view of the penalty assessed, which was a fine of $500 and-1 year in jail.

In the nest case of Jennings v. State, 42 Tex. Cr. R. 78, 57 S. W. 642, the appellant was charged with killing his stepson and was forced to testify, over objection that he had had three wives; that the first one died; the second one quit him; and the third one obtained a divorce from him. Judge Henderson, delivering the opinion, said that its tendency could only prove hurtful to 'appellant, and when this is the case the only safe rule is to reverse the judgment. Judge Brooks dissented because the error was harmless.

Stripling v. State, 47 Tex. Cr. R. 117, 80 S. W. 376, was an aggravated assault case, and the court held this character of testimony harmless in view of the minimum punishment assessed.

The case of Hightower v. State, 53 Tex. Cr. R. 487, 110 S. W. 750, was an assault to murder case, in the trial of which the state proved that appellant was married previously to a woman by the name of Ada, and then to a woman by the name of Mary, from both - of whom he was separated and divorced, and was married also to a woman by the name of Catherine, who died, and whose funeral he refused to attend. The court held this testimony inadmissible in that it could serve only to prejudice the rights of appellant.

The ease of Fischel v. State (Tex. App.) 14 S. W. 391, was an assault to murder case on one Wasseman, whom the husband charged with being responsible for the institution of divorce proceedings by his wife. One Meyers testified that 'the defendant told him he had had four wives. This was held inadmissible without any discussion further than to say that the same was prejudicial.

Lasater v. State, 88 Tex. Cr. R. 452, 227 S. W. 949, was a manslaughter conviction, and the court, speaking through Judge Latti-more on motion for rehearing, says:

“We have concluded that it was material error to allow the state to place before the jury facts relative to the marriages of appellant and that he had been sued by each of Ms wives for divorce” (citing the Webb, Hightower, and Jennings Cases, supra).

It will be noted that in all of the above cases it was proved that appellant had been married several times, afid in all of them but one had had divorce suits. We have not found any case where a reversal was ordered because of proof of only one marriage, unattended by other prejudicial circumstances.

Rape cases discussing this question are as follows:

In. Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849, a reversal was ordered where it was proved, over objection, that appellant had a wife and two children, there being in this case no issue of the fact of intercourse.

Smith v. State (Tex. Cr. App.) 74 S. W. 556, is-the same case as above.

Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 1912C, 126, was a case of rape by fraud, one of the fraudulent representations by appellant to prosecutrix being that he was a single man. The court held that in view of the charge it was permissible to prove that he was a married man, but error to prove that he had children.

In the case of Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, the court, speaking through Judge Ramsey, says:

“It became not only admissible, but highly important, to prove the fact that appellant was at the date and time of the intercourse a married man, as lending support to the state’s contention, and as evidence of a line of conduct out of harmony with any innocent purpose.”

In this case the act of intercourse was in dispute and the female under 15 years of age.

Judge Harper, in the case of Smith v. State, 80 Tex. Cr. R. 82, 188 S. W. 984, held that the admission of this character of testimony would not be error since it was necessary to show that he was not married to the prosecuting witness. No authorities are cited by him, and his language appears to be in precise conflict with the case of Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849.

In the recent case of McDuff v. State, 103 Tex. Cr. R. 668, 281 S. W. 1073, it was held inadmissible to prove that appellant had a wife and two children, and in the tlagood Case, 106 Tex. Cr. R 450, 292 S. W. 904, it was held admissible to prove that appellant was a married man, it appearing that same was res gestas.

From, the above it will be noted that such character of testimony has not uniformly been held inadmissible, nor could there be any reason for so holding as applied to all cases irrespective of the facts proved. The materiality and prejudicial character of a given fact must be measured by its relation to the entire case. Of necessity, it cannot be detached and isolated from all of its surroundings and thus measured to determine its prejudicial character. So, the above testimony, as any other, must be considered in its relation to all the evidence introduced. Thus considered, its admission, in our opinion, was not-harmful.

The state’s theory and evidencé was that a criminal intimacy existed between appellant and the wife of deceased, and that this furnished the motive for the killing in which no self-defense existed. Two issues were thus tendered for determination: (1) That of erim-Inal intimacy; and (2) tliat of homicide without justification.

Upon the first issue the inference of criminal intimacy alone is open for determination, the fact upon which it rests being admitted; namely, that appellant and the wife of deceased slept in a room alone together in a hotel in the little town of Rotan. The appellant admits this, leaving only the inference of a criminal intimacy from this admitted fact to be found by the jury. Would proof of his then having a lawful wife likely cause the jury to resolve this inference against him? Rather it would seem that proof of an existing marital obligation tends somewhat to render the existence of such intimacy less probable. Keeping in mind the important fact that appellant admits the truth of the state’s evidence of the hotel episode, we cannot believe that the conclusion to be drawn therefrom would likely be adversely influenced by proof of a marital status which- did not comport with such criminal conduct.

Upon the second issue of whether an unlawful homicide occurred, it seems clear that a jury, believing that the state had established the fact of criminal intimacy as a motive, would not be influenced to decide such an issue adversely to appellant any quicker if he were married than if he were single. The important and controlling distinction between this and the rape cases died lies in the fact that in this case it was the status of the female which made the evidence of, intimacy particularly prejudicial, whereas in the rape cases it was the status of the appellant which rendered same so. In the instant case, the criminal intimacy was with a married woman whose status precluded an intimate association alike as well to single as married men. Certainly, in ordinary felonies, as arson, forgery, and the like, it is not ordinarily prejudicial to prove that the appellant is married. Having established the fact that a man, taking advantage of the hospitality and confidence of his boyhood friend, stole the affections of his wife and despoiled her, what difference could it make whether such an act was committed by a man married or single? Proof of the association and criminal intimacy of a married man with a young girl in a rape case might tend to inflame the jury much more than in the ease of a single man whose status does not preclude his association with her, but in the case of a married woman neither of these any more than the other has the right to her association. It might be added further that whatever harmful effect, if any, it had, was lessened because proof of the marriage status of appellant tended to disprove the state’s theory that appellant wanted to possess himself of the wife of deceased, since his marriage status precluded the consummation of such purpose by either a common law .or a statutory marriage to her.

We believe tliat, under the peculiar circumstances of this case, there was no prejudicial error in the admission of this testimony.

The court charged upon the exculpatory and mitigating facts contained in the confession of appellant in accordance with a holding of this court on the previous appeal. Complaint is made of this charge for various reasons, hut an examination of same shows that it is, with the exception of its context, in the exact language of a charge approved in the cases of Jones v. State, 29 Tex. Cr. R. 21, 13 S. W. 990, 25 Am. St. Rep. 715, and Pharr v. State, 7 Tex. App. 472. Besides, the court affirmatively instructed on self-defense in accordance with the defensive issues raised by such confession, as well also as giving the customary charge on the law of murder. This fully protected appellant’s rights. Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206.

We have examined appellant’s remaining bills of exception, and, finding no error in any of them, 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.

MARTIN, J.

In a motion for rehearing appellant vigorously insists that his motion for a continuance should have been granted by the trial court, and that we erred in not so holding. By one F. E. Fulsom appellant alleges that he could have proved that shortly after the homicide he “carefully observed the defendant, both his person and his clothing, as to any blood about the defendant or his clothing, and that there was none.” It is alleged the materiality of this arises from the fact that the proved circumstances of the killing were such that, in all probability, whoever did the killing would have 6-lood spots on his body or clothing, and that deceased, Posey, had blood specks on himself, thus indicating he himself had murdered his wife and then committed suicide; and further, that the state proved the presence of a bloddy rag in a pan of water in the room after the killing, which tended'to show that appellant had washed blood from his person or clothing. It was perhaps an hour after the killing -before Fulsom arrived and saw appellant. It was not contended by the state that there were any evidences of blood on appellant at that time. Appellant testified -he . had none, and it was not denied or attempted to be. It is not alleged in the motion, as it is in the brief, that appellant could have proved by the witness that the clothing bore no evidence of having had blood stains removed from it. Many other persons were around appellant with said witness who appear to have been present at the tpial, and they are not shown to have been hostile, and no satisfactory reason is given for not hav-ihg used them to prove the same facts to which Fulsom would have sworn.

This court will loot to the evidence produced on the trial in passing on this bill; Willison v. State, 7 Tex. App. 400; Branch’s P. -O. 183. Appraising it in the light of the entire record, we do not believe it reasonably probable that the testimony of this witness would have changed the result of the trial.. Moreover, it further appears that witness resided in Williamson county. No attachment was asked for. The trial continued for several days. It seems that diligence was lacking in attempting to procure the attendance of the witness.

Appellant’s evidence raised the issue of an attack by the deceased, Posey, upon him, with an iron bar. Responding to this evidence the court charged, in paragraph 19 of his instructions, on the presumption arising from the use of a deadly weapon, under article 1223, P. O. 1925, in the following language:

“You are charged that, if you believe from the evidence that at the time B. F. Posey, the deceased, was shot by the defendant the deceased was making or about to make an unlawful or violent attack upon the defendant, J. W. For-rester, or was making or about to make an unlawful or violent attack upon Mrs. Maggie Po-sey, with an iron bar capable of producing death or serious bodily injury, then and in that event the law presumes that the deceased intended to kill the defendant or Mrs. Maggie Posey, or both of them.”

1[5] It is insisted that he should have made application of this to the facts, and that, same as given was only an abstract statement of the law. If we comprehend appellant’s point, it is that in immediate connection with said instruction an acquittal should have been authorized if the jury believed that an attack of the above character was made by deceased or if they had a reasonable doubt thereof. The books are full of cases where reversals have been ordered for failure to charge the statute on the presumption arising from the use of a deadly weapon, but we are without precedents to guide us in the determination of the exact question raised by appellant, so far as we have been able to ascertain. The case of Smith v. State, 57 Tex. Or. R. 461, 123 S. W. 698, is cited by appellant in support of his position. However, the exact point was not under consideration in the Smith Case, as is apparent from an analysis of same. No charge of any kind had been given in that case upon the presumption from the use of a deadly weapon, and the court contented itself merely with saying that a quoted special charge was, in substance, article 676 (now 1223, P. O. 1925) and should have been given, citing authorities. The authorities cited do not discuss appellant’s contention in this case and seem to go no farther than to hold, as many others do, that this article of the statute should have been given in charge. The Smith Case has been subsequently followed in Medford v. State, 89 Tex. Cr. R. 6, 229 S. W. 504, and Bankston v. State, 76 Tex. Cr. R. 507,175 S. W. 1068, without apparently noticing that- the special charge requested contained more than the language of the statute, and each of these - cases merely reaffirmed the doctrine that what is now article 1223, P. C. 1925, must in such case be given in charge. Other cases recognize that a charge must be given similar to the one in the instant case where the alleged weapon was not per se deadly.

The effect of sustaining appellant’s position would be to hold that the right to kill exists if the party slain was using a deadly weapon irrespective of the slayer’s belief that he was in danger of death or serious bodily injury.

Chapter 12 of the Penal Code 1925 contains the law of justifiable homicide in Texas. The said article 1223 is a part of this chapter. There has been set into this same chapter following article 1223, article 1226, reading as follows:

“The attack upon the person of an individual in order to justify homicide must be such as produces a reasonable expectation or fear of death or some serious bodily injury.”

This article imperatively requires the presence of a reasonable expectation or fear of death in the mind of the slayer before the right to kill exists. Its terms are plain, unequivocal, and certain, and in precise opposition to appellant’s theory which is only a deduction from the language of article 1223.

What place in the law of self-defense does article 1223, P. C. 1925, occupy? A cardinal principle of the law of self-defense long recognized was expressed by Judge Ector in the following language:

“To justify homicide * * * it is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief.” Blake v. State, 3 Tex. App. 589.

Speaking of the legal effect of article 1223, Judge Davidson says:

“The law provides that under such circumstances the accused will have the right to so believe, and as a matter of law the statute fixes the intent upon the party making the assault.”

The law of justifiable homicide requires the coexistence of these three things:

(1) An attack or threatened attack with apparent intent to kill or do serious bodily injury, as viewed from the defendant’s standpoint.

(2) Reasonable grounds for believing that such attack or threatened attack placed the defendant in danger of death or serious bodily injury.

(3) Actual belief in the existence of such danger.

The second is a corollary of the first.

An attack with a deadly weapon being proved, article 1223 forecloses the first two of these issues, but leaves the third open to proof. That is to say, neither the court or jury in such case may further speculate upon the intent of the deceased or whether the slayer had reasonable grounds for believing himself in danger of death or serious bodily injury, and can only pass upon the existence of the third issue, finding the defendant not guilty if they believe same existed or have a reasonable doubt thereof. The jury in all homicide eases must find the existence of a fear of death or serious bodily injury before an acquittal is authorized. The defendant might have good grounds for not fearing any harm to himself, even though his adversary were attacking with a deadly weapon. Would it be a sound rule to announce that the defendant in such case would have the right to kill without believing himself in danger? We think not.

The charge of the court in the instant case was very comprehensive on self-defense, and its paragraphs, taken together, fully comply substantially with the views herein expressed, and gave the appellant all he was entitled to.

The charge, taken as a whole, in effect assumed in ease of such an attack: (1) An intent to kill by deceased; and (2) that such an attack was reasonable grounds for a. fear by appellant of death or serious bodily injury. The third required issue, viz., a belief or fear of death or serious bodily injury, was properly submitted, and found by the jury against appellant.

While the court should have so connected paragraphs 18 and 19 in such way that the jury would have understood they were to be considered together, we do not think this omission was such error as justifies ¿ reversal.

Paragraph 19 of the court’s charge, first quoted above, is inaccurate, and its form is not commended. Under other facts, it would be a charge on the weight of the evidence, and the necessary clause “from the manner of its use” was omitted. It was, however, not attacked in these particulars.

Witness Hall, father of Mrs. Posey, stated in the presence of the jury, when asked if he had occasion to observe the conduct of appellant with his daughter, that “things didn’t look right to me.” This answer was stricken as not responsive. No special charge was ¿sked to disregard this. The court did all he was asked to do to remove its harmful effect, if any it had, and we do not think the matter presents such prejudicial error as would require reversal. Especially is this true in view of appellant’s own admission as to his conduct with deceased’s wife. The jury, having heard appellant admit that he and Mrs. Posey slept alone in a hotel room together all night, could not, in our opinion have gotten badly excited over or been prejudiced by the above statement.

• Other questions are presented, which have been carefully examined, and are in our opinion without merit. Their importance does not seem to justify extending this opinion by any further discussion. ,

Believing that' we correctly disposed of all legal questions in the original consideration of this case, appellant’s motion for rehearing is overruled.

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.
      @=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <3=>For other oases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes


author: MARTIN, J.

text:
    HUBBARD v. STATE.
    (No. 11453.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1. Criminal law <&wkey;I092(7), 1099(6) — Where motion for new trial was overruled and court adjourned June 4, statement of facts and bills of exception filed September 6 are not entitled to consideration (Code Cr. Proc. 1925, art. 760).
    Where defendant’s motion for new trial was overruled and court adjourned June 4,1927, statement of facts and bills of exception not filed until September 6 were not timely filed and not entitled to consideration, and will be stricken on motion of state under Code Cr. Proc. 1925, art. 760.
    2. Indictment and information &wkey;»i 10(3) — Information for violating loan brokers law fol- . lowing language of statute is sufficient (Pen. Code 1925, arts. 1127, 1129; Rev. St. 1925, arts. 6162, 6/63).
    In prosecution for violating loan brokers law as defined by Pen. Code 1925, arts. 1127, 1129, and Rev. St. 1925, arts. 6162, 6163, information following language of statute is sufficient, especially in absence of any exception.
    3. Pawnbrokers and money lenders <&wkey;l — Legislature may regulate business of loan broker.
    Business of loan broker is one within power of Legislature to regulate.
    4. Pawnbrokers and moneylenders <&wkey;2 — Renal provisions of loan brokers law held valid (Pen. Code 1925, arts. 1127, 1129; Rev. St. 1925, arts. 6162, 6163).
    Legislature did not exceed its constitutional power in attempting in Pen. Code 1925, arts. 1127, 1129, and Rev. St. 1925, arts. 6162, 6163, to prevent by penal laws the weak and helpless from becoming prey of loan brokers.

      5. Constitutional law <⅜=>46(1) — Where information for violating loan brokers law alleged ' failure to give borrov/er ticket, reviewing court is- not required to pass on validity of provision requiring keeping of book (Rev. St. 1925, art. 6163).
    ■ Where information for violating loan brokers law alleged defendant’s failure to give borrower ticket under Rev. St. 1925, art. 6163, it is not necessary for reviewing court to determine validity of provision requiring loan broker to keep well-bound book in which he shall register transactions and which shall be kept open for inspection, since violation of clause as charged could arise independent of clause as to keeping book.
    6. Criminal law <&wkey;1207— In prosecution for violating loan brokers law, statute not effective until after conviction cannot affect penalty (Pen. Code 1925, art. 13).
    In prosecution for violating loan brokers law, Acts 40th Leg., 1st Called Sess. (1927), c. 17, redefining offense, which did not become effective until two days after trial and conviction of defendant, can have no effect on penalty, and Pen. Code 1925, art. 13, has no application.
    Commissioners’ Decision.
    Appeal from Harris County Court at Law No. 2; Ray Scruggs, Judge.
    W. M. Hubbard was convicted of violating the loan brokers law, and he appeals.
    Affirmed.
    Hunt, Teagle & Moseley and Earle Adams. Jr., all of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was convicted of violating the loan brokers law as defined in articles 1127 and 1129 of the Penal Code 1925, and articles 6162 and 6163, R. C. S. 1925; punishment, a fine of $150.

Appellant’s motion for new trial was overruled, and court adjourned on June 4, 1927. The statement of facts and all of appellant’s bills of exception were not filed until September 6, 1927. As neither were timely filed, they are not entitled to consideration and are stricken upon motion of the state. Article 760, C. C. P. 1925; Miller v. State, 98 Tex. Cr. R. 621, 267 S. W. 487; Parker v. State, 83 Tex. Cr. R. 81, 200 S. W. 1083; Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418.

Most of the questions raised on this appeal by this action pass out of the case. A brief has been, filed suggesting that the law is unconstitutional and that the complaint and information are 'insufficient to charge any- offense. The information follows .the language of the statute and is in our opinion sufficient, 'especially in the absence of any exception to 'same. One of the objections stressed in "the brief is that the information fails to charge any employment by the parties named as having made the assignment of their wages, and fails also to expressly aver that either had any- wages due them. The information sets out in hsec verba the written assignment of the wages in question, and this instrument on its face shows that the assignors had wages and salaries due or to come due for the months of December and January, 1927, from the Texas & New Orleans Railroad Company. The information expressly avers that appellant took this as security for the payment of a loan and the interest thereon as an assignment of the wages Of the assignors. The information in its entirety fully meets the objections made by appellant in his brief.

The constitutionality of the law is questioned. In the case of Juhan v. State, 86 Tex. Cr. R. 63, 216 S. W. 873, this court said:

“We have no doubt that the business of the appellant is one whose regulation is within the police power of the state, and that reasonable restriction thereof may be provided by the Legislature.”

This same view was reaffirmed in the recent case of Brand v. State, No. 10669 (Tex. Cr. App.) 3 S. W. (2d) 439, motion for rehearing overruled March 7, 1928, not yet officially reported.

We reiterate the opinion that the business of a loan broker is one within the power of the Legislature to regulate, and that it did not exceed its constitutional power in attempting, as was its apparent intention, to prevent by penal laws the weak and helpless from becoming the prey of modern Shylocks.

It is insisted that that part of article 6163, Revised Statutes 1925, which provides in substance that each loan broker shall keep a well-bound book in which he shall register all his transactions, etc., which shall be kept open for inspection, is unreasonable and indefinite in that it does not provide who shall have the right of inspection' or provide any regulation or restriction for such inspection. While we are not inclined to agree with the contention of appellant, the question is not necessary to a decision of this case, as we find that the information in the instant case contains the averment that the appellant did not then and there give to the borrower a ticket showing the amount of cash actually received, and did not then and there give such borrower any ticket showing the amount of money'to be paid back by the borrower, etc. We think that a violation of this particular clause of the statute, which is a part of said article 6163, could arise independent of the said 'clause under attack; and since the verdict can be made to apply to this latter allegation, it is not necessary to specifically pass bn the point raised -by appellant.

Another suggestion is made in the brief that the penalty could be less under the acts of the Special Session of the Fortieth Legislature (chapter 17), which redefined the offense in question. This law, -under the acts of the Fortieth Legislature, did not become effective until June 6,1927, two days after the. trial and conviction of appellant; hence article 13 of the Penal Code invoked by appellant has no application.

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.
      <gx?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <®^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and'Indexes


author: MORROW, P. J.

text:
    CLARK v. STATE.
    (No. 11494.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Criminal law &wkey;!092(7) — Bills of exceptions, filed over 90 days after notice of appeal, are too late for consideration (Code Cr. Proc. 1925, art. 760).
    Under Code Cr. Proc. 1925, art. 760, bills of exceptions, not filed within 90 days after notice of appeal, are too late to form basis of complaint.
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    James Clark was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    F. P. Adams, of Jasper, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Transporting intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The evidence of both the state and the appellant is to the effect that the appellant was in possession of a jar of whisky. That of the state supports the conclusion that the appellant transported the whisky. This was controverted by the appellant’s testimony and by that of his witnesses. The issue of fact thus presented for solution was submitted to the jury and determined in favor of the state.

In the record there are copied three bills of exceptions, all of which were filed November 15, 1927. The motion for new trial was overruled and notice of appeal given on the 11th day of August. Under the statute, but 90 days after notice of appeal are allowed within which to file the statement of facts and bills of exceptions. See article 760, C. C. P. 1925; McDowell v. State, 100 Tex. Cr. R. 208, 271 S. W. 1116; Mann v. State, 102 Tex. Cr. R. 210, 277 S. W. 1085; and other cases collated in Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, Supplement, p. 13. The bills were too late to form the basis of complaint. They have been read, however, but we find naught in them which would authorize a reversal.

The judgment is affirmed.


author: DATTIMORE, J.

text:
    SISK v. STATE.
    (No. 11495.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Criminal law <§=^992 — Judgment and sentence for forgery were improper, where verdict was for passing forged'instrument.
    Where charge to jury submitted only question of defendant’s guilt of passing a forged instrument, and verdict was in accordance with the charge, it was improper for the court to enter judgment and render sentence for forgery.
    2. Criminal law <&wkey;982 — Evidence of defendant’s connection with alleged attempt to pass another check held inadmissible in forgery prdsecution in which defendant sought suspended sentence, notwithstanding defendant’s denial of connection with another check.
    In prosecution for forgery, in which defendant sought a suspended sentence, admission' of testimony concerning defendant’s connection with a man subsequently tried for passing or attempting to pass bad check held error, notwithstanding defendant’s testimony that he had not at any time been connected with any other check, since isolated evidence of separate criminal connection was immaterial on issue of defendant’s good reputation.
    3. Criminal law <&wkey;369(4), 982 — In forgery prosecution, testimony concerning defendant’s connection with another forgery held not competent on guilt or suspending sentence.
    In prosecution for forgery, in which defendant sought suspended sentence, testimony concerning defendant’s alleged connection with another forgery case in a different county was inadmissible to show defendant’s guilt or to disprove good reputation on question of suspended sentence, where it was not shown that he had ever been legally charged with, or tried for, that transaction; and admission of such testimony was error requiring reversal.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    ’ Will Sisk .was convicted of forgery, and he •appeals.
    Reversed and remanded.
    Fred C. Chandler and Ernest W. Belcher, both of Stephenville, for appellant. ■
    A. A. Dawson, State’s Atty., of Austin, -for the State.
   DATTIMORE, J.

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

In passing, attention is called to the fact that the charge of the court submitted to the jury only the second count in the indictment wherein appellant' was charged with the passing of a forged instrument, and to the fact that the judgment and sentence are for forgery, which is not in consonance with the verdict and the charge of the court. We frequently have to call the attention of trial courts to inaccuracies and errors of this kind, which should be avoided.

Appellant filed an affidavit asking for a suspended sentence, which was denied him by the verdict of the jury. As materially affecting this issue, complaint is made in bills of exception Nos. 1 and 2 of the admission of testimony from witness Riley, and of matters elicited from appellant on cross-examination when he took the witness stand. Bill No. 1 shows that the witness Riley stated that a man named Auguston brought a check into his store at Granbury, Tex., and attempted to cash it. He said that Auguston was accompanied by a man who looked like appellant. Auguston was arrested.and subsequently tried for said offense. When appellant took the witness stand in his own behalf, he was examined and asked relative to this same transaction. This bill is qualified by the trial judge, whp states in effect that he let said testimony in because appellant had testified on direct examination that he had not at any time been connected with any other check. This explanation, in our opinion, fails to remove the error. The fact that appellant affirmed in general terms that he had never been connected with any other check would not authorize the state, when the only issue before the jury was as to appellant’s good reputation, to prove an isolated instance, a separate criminal connection with a totally different cheek from the one involved in the case on trial.

It seems to us that each bill manifests error. Mr: Riley was not a character witness for the defense, but was a witness for the state, and testified directly during the state’s rebuttal, and went into details of another forgery case in a different county in an effort to connect appellant therewith. This could not be done for the purpose of showing appellant’s guilt herein, and apparently such was not its purpose. Nor could such proof be made in order to let the jury conclude appellant did not have a good reputation, and therefore should not be given a suspended sentence. It was not shown that appellant had ever been legally charged with, or tried for, the Granbury transaction.. See Johnson v. State, 91 Tex. Cr. R. 582, 241 S. W. 484; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; McKnight v. State, 98 Tex. Cr. R. 355, 265 S. W. 892; Bowman v. State, 98 Tex. Cr. R. 349, 265 S. W. 1038; Waters v. State, 91 Tex. Cr. R. 592, 241 S. W. 496; Moore v. State, 91 Tex. Cr. R. 118, 237 S. W. 931; Pettiett v. State, 100 Tex. Cr. R. 255, 272 S. W. 473. We are unable to say that, had this evidence been excluded, the jury would' not have seen fit to grant appellant a suspended sentence. This is a valuable right, and the admission of the testimony may have deprived appellant thereof. We also desire to call attention to the fact that in the charge of the court herein it is stated that appellant pleaded guilty. In the judgment it is recited that he pleaded not guilty.

For the admission Of the testimony above mentioned, the judgment is reversed, and the cause remanded.
      @3»For otter oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    Ex parte RICHARDS.
    (No. 11793.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Grand jury <&wkey;>36 — Jurisdiction to enter contempt judgment held to rest on accused’s refusal to answer question by grand jury concerning criminal matter within, its authority (Code Cr. Proc. 1925, art. 387).
    Jurisdiction of court to enter contempt judgment under Code Or. Proc. 1925, art. 387, for refusing to answer questions propounded by grand jury, rests on accused’s refusal to answer question propounded in investigation by grand jury, of criminal matter within scope of its authority.
    2. Habeas corpus &wkey;92(3) — On habeas corpus to obtain release from contempt judgment, court must determine whether relator refused to answer proper question by grand jury.
    On habeas corpus proceeding to obtain release from contempt judgment, rendered for relator’s refusal to answer question by grand jury, court must determine whether relator has refused to answer proper question.
    3. Grand jury <&wkey;36 — Contempt judgment held unauthorized under judgment and record failing to show proper question which relator re- . fused to answer, requiring relator’s discharge.
    Judgment committing relator for contempt in refusing to answer questions of grand jury, silent concerning inquiry or purport of question and record void of facts showing that inquiry directed to relator was proper question, and failing to show whether grand jury was investigating offense within its jurisdiction or that defendant refused to answer, held not to show jurisdiction by court to enter order committing relator for contempt, and required discharge of relator on habeas corpus proceeding.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Habeas corpus proceeding by Colquitt Richards. From an order refusing to release relator, lie appeals.
    Reversed, and relator ordered discharged.
    Adams & McAlister, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an appeal from an -order of the district judge refusing to release the appellant from a- contempt judgment upon a habeas corpus hearing. The judgment is in the following language:

“On this, the 2d day of March, A. D. 1928, it appearing to the court that Colquitt Richards had refused to answer questions propounded to him by the grand jury of Nacog-doches county, Tex., it • is the opinion of the court that said Colquitt Richards should be ordered to jail until such time as he shall see fit to answer such questions propounded to him by said grand jury. It is so ordered, adjudged, and decreed.”

From the statement of facts it appears that on the 3d of March the grand jury was in session; that the appellant was incarcerated in jail and was restrained by virtue of the order copied alcove; that questions were propounded to him, “which questions were pertinent to the crime supposed to have been committed, and that the defendant was promised immunity from prosecution for any law violation connected with the supposed crime under investigation.” The evidence gives no further information touching the nature of the proceeding. The only witness testifying to the act of contempt was the county attorney. From his testimony it appears that certain questions, the nature of which is not disclosed, were propounded to the appellant, and, quoting:

“He answered those questions in an evasive manner * * * and refused to give full and truthful answers thereto. * * * He did not refuse to talk at all; he talked quite a bit, as well as I remember.”

This testimony was received over the objection of the appellant as a mere conclusion of the witness.

The witness Steve Christopher testified:

“As to an incident that occurred in March of this year on the night of the party at Oscar Harris’ in Nacogdoches county, and whether Mr. Colquitt Richards went with me and my brother Emile to Dad Hawkins’ house to buy some whisky, he went with me and my brother Emile over to Dad Hawkins’ about the 23d of December, 1927, to buy some whisky.”

The testimony' of Emile Christopher was in substance the same as that of Steve Christopher.

The statute covering the subject reads thus:

“When a witness, brought in any manner before a grand jury, refuses to testify, such fact shall be made known to the attorney representing the state or to the court; and the court may compel the witness to answer the question, if it appear to be’ a proper one, by imposing a fine not exceeding one hundred dollars, and by committing the party to jail until he is willing to testify.” Article 387, C. C. P.-1925.

The jurisdiction of the court to enter the order in question rests upon the refusal of the'accused to answer a proper question, that is to say, a question propounded in the investigation by the grand jury of some criminal matter within the scope of its authority. See Ex parte Jennings, 91 Tex. Cr. R. 612, 240 S. W. 942, 22 A. L. R. 1351. On a habeas corpus hearing, it is the office of this court to determine whether the relator has refused to answer a proper question. From the case of Ex parte Miller, 91 Tex. Cr. R. 607, 240 S. W. 944, we quote:

“If it was not such a question, then the court is without jurisdiction to enter a judgment of contempt against the witness. The court is without jurisdiction to hold a witness in contempt when the refusal is not contempt. Holman v. State, 34 Tex. 673; Gould v. State, 61 Tex. Cr. R. 195, 134 S. W. 364 [695]; Snodgrass v. State, 43 Tex. Cr. R. 364 [65 S. W. 1061]; Degener v. State, 30 Tex. App. 566 [17 S. W. 1111].”

In the present instance, neither the judgment of commitment nor the evidence adduced upon the hearing shows that the court had jurisdiction to enter the order committing the relator for contempt. The judgment mentioned is silent touching the nature of the inquiry or the purport of the question, and the record is void of facts showing that the inquiry directed to the appellant was a proper question, and also fails to show whether the grand jury was investigating any offense within its jurisdiction. Moreover, the refusal to answer is not shown.

A further discussion of the matter is not deemed desirable. We refer, however, to the treatment of the subject in Ex parte Jennings, 91 Tex. Cr. R. 612, 240 S. W. 942, 22 A. L. R. 1351; Ex parte Miller, 91 Tex. Cr. R. 607, 240 S. W. 944; and to the authorities to which reference is made in the opinions mentioned.

The judgment is reversed, and the relator ordered discharged.
      other cases see same topieand KEY -NUMBER, in all Key-Numbered Digests and Indexes


text:
    SCHWEINLE v. STATE.
    (No. 11430.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Fish i&wkey;15 — Conviction for attempting to catch fish by use of explosives held sustained by evidence.
    Evidence held sufficient to sustain conviction for unlawfully attempting to take and catch fish from a fresh-water stream by the use of explosives.
    2. Criminal law <&wkey;945(l) — Newly discovered evidence must be such as would likely change result, to warrant new trial.
    To entitle a party to a new trial upon the ground of newly discovered evidence, the evidence must be such as would likely change the result.
    3. Criminal law <&wkey;945(2) — Refusal of new: trial, in prosecution for catching fish by use of explosives, for newly discovered evidence that other people were seen coming from creek after explosion, held not error.
    .In prosecution for attempting to catch fish from fresh-water strea'm by use of explosives, In which' conviction was based on testimony as to presence of defendant near scene of explosion and his endeavor to escape, refusal of new trial on ground of newly discovered evidence that other persons proceeded away from stream after explosion held not error, since testimony did not necessarily contradict that upon which conviction was based, and probably would not have changed result of trial.
    4. Criminal law <©=>1038(4), 1056(1) — Court’s charge is not presented for review in misdemeanor case, where appellant fails to present special written instructions with exceptions to their refusal.
    Failure of appellant, in misdemeanor case, to present special written instructions and to point out refusal of such special instructions requested by bill of exceptions, presents nothing for review in connection with court’s charge.

      '• Commissioners’ Decision.
    Appeal from Montgomery County Court; W. H. Lee, Judge.
    Theodore Schweinle was convicted of unlawfully attempting to catch fish from a fresh-water stream by the use of dynamite and explosives, and he appeals.
    Affirmed.
    McCall & Crawford, of Conroe, for appellant.
    A. A. Dawson, State’s Atty., of Austin', for the State.
   MARTIN, J.

Appellant was ehargéd' by information with unlawfully attempting 'to ¡cake and catch fish from a fresh-water stream by the use of dynamite and explosives. Iiis punishment was assessed at 30' days’ confinement in .the county jail and a fine of $25.

It is insisted that the evidence was insufficient. Witness Dulaney was riding near' Spring creek bottom and observed three men in a Ford car going into the bottom. Shortly thereafter he heard two explosions. Thereafter he heard a third explosion further down the creek. Riding rapidly to the scene of the first two explosions, he found the water mud- . dy. The leaves on the trees above the water hole were wet and dripping with water. Several dead fish were strewn on top of the water, One was pulled out and was bruised and bloodshot; every bone in its body appeared to be broken, according to witness. Some paper wrappings from sticks of dynamite were on the ground near this water hole, and there was an old chunk in the water with a string tied to it. He went to the scene of the third explosion, got on his horse, and'started away, and hearing a Ford engine start, he ran and intercepted it and found three men in it, including appellant, apparently in a great hurry to get away. Appellant said, “Xou did’nt see us put dynamite in the creek.” The next morning witness, in company with another, followed three chains of tracks from where appellant’s car was located to the scene of the first explosions and down the creek to the scene of the other explosion, and dead fish were found there. These sanje tracks went from the last point back to the appellant’s car. A search above and below the scene of the different explosions revealed no other human tracks.

The court charged on principals and circumstantial evidence. In our opinion the evidence was sufficient and amply so to sustain the conviction.

Motion for new trial was made based upon newly discovered evidence. An affidavit of one William Craig was filed, to the effect that he was fishing near the mouth of and up and down Walnut creek, a tributary of Spring creek, on the day of the alleged explosion of dynamite; that he heard these explosions, and about 15 or 20 minutes thereafter he observed two cars of people coming out of Spring creek bottom and traveling the same route that he had come from Harris county and going in that direction. This testimony needs no analysis from us to show that it does not necessarily contradict the testimony of Dulaney, and in our opinion would not h*.ve changed the result of the trial if it had been available to appellant. “It is a well-settled rule, that to entitle a party to a new trial upon the ground of newly discovered evidence, the evidence must be such as would likely change the result.” Burns v. State. 12 Tex. App. 269; Hutchinson v. State, 6 Tex. App. 468; Vernon’s C. C. P. 1925, vol. 3, p. 13. The showing made for a new trial is deficient in other particulars not necessary to mention.

Complaint is made of the court’s charge. Appellant presented no special written instructions in tile low.er court covering the points which he now claims were not correctly charged upon, and in the absence of these, with a bill of exception to the refusal of such special instructions, there is nothing presented for review in this character of a case. This being a misdemeanor case, the appellant should have asked special instructions and carried forward his point by proper bills of exception to the refusal of such special instructions. Robbins v. State, 60 Tex. Cr. R. 523, 132 S. W. 770; Vernon’s C. C. P. 1925, vol. 2, p. 289.

No error appearing in the record, the judgment is affirmed.

PER CTJBIAM. 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.
      <§=3Fo- other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BLACK v. STATE.
    (No. 11500.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    Embezzlement t&wkey;44(2) — Evidence held insufficient to show intent of theft by bailee.
    Evidence A eld insufficient to support conviction for theft by bailee, where it was not plain that defendant acted with fraudulent intent or that claim to money was not grounded on facts justifying him in believing he had title.
    Commissioners’ Decision.
    Appeal from District Court, Bexar County; C. J. Matthews, Special Judge.
    E. W. Black was convicted of theft by bailee, and he appeals.
    Beversed and remanded.
    Heilbron, Kilday & Howard, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, theft by bailee; punishment, two years in the penitentiary.

The sufficiency of the evidence is questioned. The prosecution grew out of a transaction in which prosecuting witness delivered. to appellant $100 as earnest money on the purchase of a house and lot in San Antonio, which witness contracted to purchase from the owner through appellant as agent. No deed or possession of the premises under contract was ever delivered to witness, and it was proved that no part of the $100 was ever returned to witness. The evidence is not entirely clear, and the facts do not seem to have been fully developed. Some of the evidence is sharply conflicting. The .following facts, however, seem undisputed:

(1) That appellant had the property listed for sale as .agent.

(2) That he contracted same as agent. to witness by an instrument in writing, which contained, among other things, stipulations, which, in substance, provided that the contract was to be consummated within 30 days, provided title was good and that failure to perform by buyer entitled seller and agent to the $60 then put up as earnest money with appellant.

(3) That subsequent payments on, the earnest money were made until the total amount was $100, the ■ last of these being made on June 24,1926.

(4) On July 24, 1926, appellant wrote witness:

“I am ready to proceed with our contract to close sale to you of property located at 1014 Delaware street. * ⅝ * Phone me Mission 1631, or write just what you want to do about the deal.”.

(5) Witness through his attorneys on July 26, 1926, replied to the above letter, in part, as follows:

“There is really nothing to say about- the matter. It strikes us that you have in your possession $100 that belongs to Mr. Shields, and it is rather a difficult task to pry you loose from the money. * ⅞ ⅜ Therefore, we will give you to July 29, 1926, to refund this money to us or to Mr. Shields, and, in case you fail to do so, we will try to have the authorities take a complaint against you for swindling.”

The appellant had conducted the prosecuting witness to the owner’s local representative in San Antonio who promised to get a definite .answer from the owner, who appears to have been a nonresident, within two or three days. The local representative was not used as a witness by the state. Apparently while appellant was making an effort to get the property for witness, negotiations were broken off with a threat of prosecution. Under terms of the contract, appellant had a right to retain the money in question if the buyer defaulted.

It has been said:

“Mr. Greenleaf says: ‘Where the goods were taken under a claim of right, if the prisoner appears to have had any fair color of title, or if the title of the prosecutor he brought into doubt at all, the court will direct an acquittal, it being improper to settle such disputes in a form of process affecting men’s lives and liberties or reputation.’ ” Evans v. State, 15 Tex. App. 38.
“Where the taking is open and under a claim of right, the question of title should be settled in a civil suit. Seymore v. State, 12 Tex. App. 391.” Branch’s P. C. p. 1337.

There is some disputed incriminating testimony not herein recited, but the above apparently uncontradicted facts raise in ohr minds such a grave doubt as to the proved guilt of the appellant that we- are not able to give our sanction to this conviction.

It is not plain from the proved facts that appellant acted with a fraudulent intent, or that his claim to the money was not grounded upon facts which justified him in believing he had title to the money in question: Stallings v. State, 29 Tex. App. 220, 15 S. W. 716. A fuller development of the facts may show otherwise.

The judgment is reversed and the cause remanded.

PER CURIAM. The .foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.
      <®=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CHRISTIAN, J.

text:
    GUNTER v. STATE.
    (No. 11384.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Searches and seizures <&wkey;3(I) — “Probable cause” authorizing search without warrant is reasonable ground of suspicion supported by circumstances warranting cautious man in belief of guilt.
    “Probable cause” justifying officer to search and seizure without warrant is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant cautious man in belief that person is guilty of offense with which he is charged.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]
    2. Criminal law <&wkey;394 — Testimony of transporting liquor seized by searching, automobile without warrant held inadmissible, in view of lack of evidence showing probable'cause.
    In prosecution for transporting intoxicating liquor, admitting evidence obtained by search of automobile without warrant held error, in view of lack of evidence showing officers acted on knowledge amounting to probable cause.
    3. Criminal law <&wkey;419, 420(12) — In prosecution for transporting intoxicating liquor, admitting affidavit and warrant for search of building near automobile containing liquor held error as hearsay.
    In prosecution for transporting intoxicating , liquor, where officers searched automobile without warrant and found liquor, admitting in evidence over objection affidavit and search warrant on which officers searched building near by held error; statements therein being hearsay.
    4. Criminal law <S&wkey;l 169(1) — Improper receipt of hearsay evidence which is obviously harmful is reversible error.
    In criminal prosecution, improper receipt of hearsay evidence which is obviously harmful is reversible error.
    Commissioner’s Decision.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    W. H. Gunter was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Jones & Brown, of Breckenridge, for appellant.
    A, A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Officers had a search warrant for the search of the Walnut Rooms in the city of Breckenridge. Appellant, in company with his wife and one Cooper, drove up in a Chevrolet áutomobile and parked in the street at the curb next to said Walnut Rooms. Appellant owned the car. On' parking the car) appellant and his companions went to the front of Walnut Rooms; the same being the main entrance to the building. Officers had' completed their search of the house and were searching on the outside when appellant drove up. The officers did not know appellant nor his companions, and did not know to whom the Chevrolet car belonged. One of the officers followed appellant and his companions to the front entrance of the building for the purpose of ascertaining their identity. Another officer went to the car, searched it, and found therein a half gallon jar of whisky about two-thirds full and a quart jar about half full of whisky. Said officers were not armed with a, warrant authorizing the search of the car, and did not know before making the search that it contained intoxicating liquor. The officer making the search testified that he had no more reason “to suspicion this car of containing •intoxicating liquor than he would any other car that may have driven up to the Walnut Rooms and parked.” He further stated that he would have searched any car he had seen .driving up to said building.

Appellant objected to the receipt of the evidence touching the results of the search, on the ground that the search was made without a search warrant, and that the officers had no information or knowledge of facts constituting probable cause. The court overruled the objection and qualified appellant’s bill of exception No. I as follows:

“The witness Deason testified that he had information that whisky was to be delivered to the Walnut Rooms, and that they were watching the premises for that reason, and would have searched any ear stopping there during that time.”

In Battle v. State, 105 Tex. Cr. R. 568, 290 S.W. 762, this court held that:

“The search of an automobile upon the public highway may be made without warrant where the seizing officer has knowledge or information of facts constituting ‘probable cause.’ ”

Probable cause has been defined as:

“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Landa v. Obert, 45 Tex. 539.

We find nothing in the record which would justify the conclusion that in searching appellant’s car the officers acted upon knowledge amounting to “probable cause.” It follows that the learned trial judge fell into error in admitting their testimony touching the results of the search.

The propriety of receiving in evidence, over appellant’s objection, the affidavit and search warrant upon which the officers acted in searching Walnut Rooms, is not discerned. There seems to have been no issue upon which the contents of such instruments were relevant. The statements contained therein were hearsay. Their admission was error. Where the improper receipt of such evidence is obviously harmful, the error is reversible. Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577.

The judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.
      «gsoFor other cases see same1 topic and KEY-K UMBEIt in all Key-Numbered Digests and Indexes