author: SMITH, Justice. CALVERT, Chief Justice NORVELL, Justice

text:
    Jerry Irving BLOOM, Petitioner, v. TEXAS STATE BOARD OF PHARMACY, Respondent.
    No. A-10431.
    Supreme Court of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.
    Wynne, Jaffe & Tinsley, Dallas, Parker & Williams, Irving, for petitioner.
    Waggoner Carr, Atty. Gen., Austin, J. C. Davis and Paul Phy, Asst. Attys. Gen., for respondent.
   SMITH, Justice.

The Respondent, The Texas State Board of Pharmacy, after notice and hearing on the 19th day of April, 1963, found Jerry Irving Bloom, a registered pharmacist, guilty of the charge of violating Article 4542a, Section 12(h), Vernon’s Annotated Statutes. Section 12(h) provides that the Pharmacy Board may in its discretion cancel, revoke or suspend the license of any pharmacist if the Pharmacy Board finds after hearing that a licensee has engaged in the act of “substitution” in the dispensing of drugs. The Act defines “substitution” as meaning “ * * * the dispensing of a drug or a brand of drug other than that which is ordered or prescribed without the express consent of the orderer or pre-scriber.” Section 12(h) goes further to provide that:

“If the consent of the orderer or preserver for substitution by the licensee is obtained, a notation shall be made by the licensee on the prescription stating that such consent has been obtained and by whom such consent was given, and such notation shall, in addition, specify the drug or brand of drug so substituted.”

On May 3, 1963, Bloom filed in the District Court of Dallas County, his appeal from the Pharmacy Board’s order suspending his pharmacist’s certificate. The petition alleged that the Pharmacy Board’s findings were not reasonably supported by substantial evidence, and that the evidence wholly failed to establish a violation of the law as charged; that the action of the Pharmacy Board was arbitrary, illegal, invalid and of no effect in that the order was not only without support in substantial evidence, but to the contrary the evidence showed that he had not violated the law, as charged; that he “had acted in good faith, had no intention to violate any law or regulation governing Plaintiff’s conduct as a registered pharmacist and that there was no basis for any complaint against the Plaintiff.” There is no contention that the druggist was negligent in any respect or that he filled the prescription by mistake.

On May 3, 1963, the trial court entered a temporary restraining order without notice to the Pharmacy Board based upon Bloom’s verified application therefor, restraining and enjoining the Pharmacy Board from enforcing its April 19, 1963, order.

On May 10, 1963, the Court, after considering Bloom’s pleadings, the Pharmacy Board’s general denial and the evidence offered by both parties, granted a Writ of Injunction decreeing that the Temporary Restraining Order entered on May 3, 1963, be “continued in force and effect as a Temporary Injunction” pending final hearing of the cause.

On August 26, 1963, after a hearing of the cause on its merits, the trial court rendered its judgment granting a permanent injunction in favor of Bloom and against the Pharmacy Board, holding that the Pharmacy Board’s order was not reasonably supported by substantial evidence and was invalid. The trial court ordered that “the Defendant Texas State Board of Pharmacy, its servants, agents and/or employees be, and they are hereby, restrained and enjoined from enforcing or carrying out its order of April 19, 1963, and from suspending, revoking or cancelling Plaintiff’s certificate and license to practice pharmacy, * *

The Pharmacy Board, on appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, won from that Court a judgment reinstating its order of April 19, 1963, and dissolving the permanent injunction which had been granted by the trial court on August 26, 1963. 382 S.W.2d 496.

We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The facts are undisputed. Bloom dispensed a substance in two small bottles to a representative of A. H. Robins Company by pouring said substance from a one-gallon container, Bloom’s Exhibit 5, bearing the A. H. Robins Company “Donnatal” label. The one-gallon “Donnatal” container had been purchased by Bloom’s employer from a wholesale drug house; Bloom had never tampered with, or altered the contents of the Donnatal container; Bloom had no reason to believe that the bottle contained anything other than Donnatal; and Bloom believed that the substance dispensed was actually Donnatal. In addition to these admitted facts, the Pharmacy Board gives emphasis to the fact that fifteen tests were made by an A. H. Robins Company chemist in making an analysis of the dispensed substance, and that, in the opinion of the chemist, the substance analyzed was “definitely imitations of Donnatal elixir.” The record shows that ten of the fifteen tests showed that the substance analyzed was different from the A. H. Robins Company Donnatal elixir specifications. The chemist admitted that five of the tests “ran the same on the substance that came out of Plaintiff’s Exhibit 5, as run on Don-natal.” The chemist testified on cross-examination that the A. H. Robins Company did not ship Donnatal directly to the Dorchester Pharmacy, but shipped it to a wholesaler in Dallas, Texas, and that he did not know “what happened to this bottle while it was in the hands of the wholesaler.”

The principal contention of Bloom is that the evidence shows conclusively that he did not violate the law in any manner when he filled the prescriptions describing a drug known as “Donnatal.” The Pharmacy Board takes the position that the Statute, especially Section 20 of Article 4542a, supra, which provides that the practice of pharmacy in the State of Texas is a professional practice affecting the public health, safety and welfare, does not require intent to violate the Statute, and that the Legislature did not intend to make scienter an element. If intent is not required, then the order is supported by substantial evidence.

The answer to the question turns on our interpretation of the Statute, particularly the meaning intended to be given by the Legislature to the word “substitution” contained in the Statute. We hold that when the Legislature defined the word “substitution” in the Act as meaning “ * * * the dispensing of a drug or a brand of drug other than that which is ordered or prescribed without the express consent of the orderer or prescriber,” it meant to provide that before a guilty finding will be allowed to stand, the evidence must establish a conscious substitution. We recognize that it is not the province of this Court to substitute itself for the Pharmacy Board in determining the wisdom or advisability of the order in question, but this Court will only sustain the order upon a determination that the Pharmacy Board’s conclusions are supported by substantial evidence. In sustaining the judgment of the trial court in this cause, we recognize the rule that the Pharmacy Board’s order is presumed to be valid, and the burden rests with Bloom to show that the Pharmacy Board’s order of April 19, 1963, is not reasonably supported by substantial evidence. Under our decisions an administrative order is reasonable, as a matter of law, if it is supported by substantial evidence. The evidence in this case shows conclusively that Bloom had no intention to substitute one drug for another. The Pharmacy Board cites Sutherland Statutory Construction, 3rd Edition, Vol. 3, Section 7202, pp. 397-398, in support of its contention that statutes such as this, which are enacted for the protection and preservation of public health, should be liberally construed in order to accomplish their objectives. The Pharmacy Board contends that Bloom has no escape from the force of the Statute, which provides a penalty for the violation, merely because he acted without fault.

We decline to adopt the view expressed by the Pharmacy Board that this Statute “dispenses with the conventional requirement for criminal conduct * * * awareness of some wrongdoing” and that “in the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in relation to a public danger.” This was the view expressed in the case of United States v. Dotterweich, (1943) 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48, and adopted by the Court of Civil Appeals in this case. The Pharmacy Board, in urging this court to adopt its view, lifts from the case of United States v. Hohensee, (3 Cir. 1957) 243 F.2d 367, 371, cert. den. 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136, the statement of the Court that:

“the Act imposes criminal sanctions as a means of regulating activities so dangerous to the public welfare as not to permit of exception for good faith or ignorance. A person acts at his peril in this field.”

In the Hohensee case the defendants were indicted on nine counts for causing the introduction and delivery for introduction into interstate commerce of misbranded drugs contrary to the Federal Food, Drug and Cosmetic Act, 52 Stat. 1040, 21 U.S.C. § 321 et seq. Act, 21 U.S.C., defined “labeling” as meaning “ * * * all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” “(g) The term drug means * * * (2) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.” The Act prohibited the “introduction or delivery for introduction into interstate commerce of any * * * drug * * * that is adulterated or misbranded.” In addition to the label on the drug container, the defendants delivered lectures and distributed printed material dealing with most chronic diseases. The Court in holding that the Act imposes sanctions as a means of regulating “activities so dangerous to the public welfare as not to permit of exception for good faith * * * ” was concerned with a different Act than involved in the present case, and was dealing with a factual situation reflecting fraud and misrepresentation of a drug through the use of false and misleading literature. The Court cited the case of Kordel v. United States, (1948) 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52, to support its holding. The Kordel case is factually very similar to the facts in Hohensee. In Kordel the misbranding consisted of statements in circulars or pamphlets distributed “to consumers by the vendors of the products, relating to their efficacy.” Kordel supplied the pamphlets as well as the products to the vendors. Of the twenty counts in the information filed against Kordel, seven charged that the drugs and literature were shipped in the same cartons. The literature involved in the other counts was shipped “separately from the drugs and at different times— both before and after the shipments of the drugs with which they were associated.” The main issue presented in Kordel was the question of whether the separate shipment of the literature saved the drugs from being misbranded within the meaning of the Act. The Court held that “the phrase ‘accompanying such article’ is not restricted to labels that are on or in the article or package that is transported.” The Kordel case involved the use of false and misleading literature designed for use in the distribution and sale of drugs. Under the record thus presented, the United States Supreme Court affirmed the conviction of Kordel for the offense of introducing or delivering for introduction into interstate commerce mis-branded drugs. In both the Hohensee and Kordel cases the judgment of the Court was based on facts showing a fraudulent misrepresentation through the use of false and misleading literature.

It is argued that the absence of the word “knowingly” or the word “intentionally” from the Statute indicates that “the Legislature was declaring the public policy of this State to be that the substitution of one drug or brand of drug for that ordered or prescribed would be sufficient ground for revoking, cancelling or suspending a pharmacist’s license, regardless of the good faith or unawareness of wrongdoing on the part of the pharmacist.”

The Court of Civil Appeals in adopting this theory and in holding that Bloom should be held guilty, says that such a public policy is quite consistent with that declared by our Supreme Court in Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 840, 142 A.L.R. 1424. This case held that “a retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though the food is in sealed containers bearing the label of the manufacturer and the retailer has no means of knowing that the contents are unfit for human consumption.” We find no case in this or any other jurisdiction which applies this rule to a factual situation where, as here, all of the evidence establishes a complete unawareness of any wrongdoing. See Whiteley v. Webb’s City, 55 So.2d 730 (Fla., 1951); Watkins v. Jacobs Pharmacy Co., 48 Ga.App. 38, 171 S.E. 830 (1933); People’s Service Drug Stores v. Somerville, 161 Md. 662, 158 A. 12, 80 A.L.R. 449 (1932).

In the case of Garner v. Texas State Board of Pharmacy, (1957) Tex.Civ.App., 304 S.W.2d 530 (err. ref.), which the Court of Civil Appeals distinguishes, the Board revoked the license of a pharmacist under the authority of Article 4542a, Sec. 12(f), V.A.T.C.S., which says that the Board may revoke such licenses when the holder thereof “directly or indirectly, aids or abets in the practice of pharmacy any person not duly licensed to practice under this Act.” The evidence showed that Garner, the pharmacist, did not know that his employer had filled a prescription in his absence, but there was evidence that drugs were missing which Garner never checked. If a pharmacist may be held innocent of this violation in the absence of knowledge which he could have easily obtained, it seems that the petitioner here, who has not more seriously endangered the public by dispensing a drug so much like that ordered that it takes a complete and thorough chemical analysis to tell the difference, should not be branded as unprofessional for acting as prudently as the circumstances allowed. Thus, it is seen that knowledge was required in Garner. We see no reason why this subsection of the Act under consideration should be construed differently. Since Bloom had no intention to substitute one drug for another, the Pharmacy Board’s order is not supported by substantial evidence.

Our decision on the points discussed renders it unnecessary to pass upon Bloom’s remaining points of error.

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

GRIFFIN, NORVELL and STEAK-LEY, JJ., dissenting.

CALVERT, Chief Justice

(concurring).

I concur in the judgment entered.

I agree that under a proper construction of the statute, scienter, or knowledge of substitution, is essential to the right of the Board to suspend the license of a licensee.

WALKER, J., joins in this opinion.

NORVELL, Justice

(dissenting).

I do not agree with the Court’s approach to this case nor the decision herein which in effect reduces the responsibility of a professional pharmacist to that of a mere label reader. This is not a criminal case but one involving a statute designed to protect the public interest by providing for a board of professionals to govern and control the practice of pharmacy. This Court has now re-written a portion of the statute by redefining the statutory definition of the term “substitution” contained in Article 4542a, § 12(h) by inserting the word “knowingly” therein. This in itself is a substitution of sorts and to my mind runs contrary to the clear intent of the Legislature. It also makes readily available the time honored defense of “I didn’t know it was loaded”, and runs counter to the experience of the federal authorities in effecting an efficient control over drugs and foodstuffs. I do not believe that the doctrine of caveat emptor should be applied to purchases of processed foodstuffs, drugs and medicines. Surely a professional pharmacist is in a much better position to know the nature and properties of chemicals that go into a prescription than is the patient-consumer. And this is true, no matter how complicated the chemical formula of a drug may be. A duty is owed by any profession to the public which it purports to serve. In my opinion the professional board has fairly discharged the obligations enjoined upon it by law. The penalty assessed by it was neither harsh nor unreasonable. This Court should not interfere with its action.

I am wholly in accord with the able opinion of the Court of Civil Appeals, 382 S.W.2d 496, and hence pretermit further discussion. I respectfully dissent from the order reversing the Court of Civil Appeals.

GRIFFIN and STEAKLEY, JJ., join in this dissent.

      . “On the 11th day of April, 1963, came on to be heard the complaint filed with the Texas State Board of Pharmacy, charging you with the offense of violating Article 4542a, Revised Civil Statutes of Texas, Section 12 and (h), Sub-section - and-; And the Texas State Board of Pharmacy having heard the evidence and testimony in regards to the above charges and complaints, and after due deliberation thereon, did find you the said JERRY IRVIN & BLOOM guilty as charged; And it was accordingly ordered by the Texas State Board of Pharmacy that: Tour pharmacist’s certificate #11253 be suspended for three (3) years and all but the first sixty (60) days of said suspension be placed on probation under the condition that no violation occurs during the three (3) year period of suspension. Upon the receipt of this notice you will return your certificate No. 11253 and your renewal license #3540 to the Board’s office. At the end of ’sixty (60) days, the certificate and renewal will be returned to you.”

      . Fourteen of thse tests were: (1) the refractive index test; (2) the specific gravity test; (3) the pH. test; (4) the color absorbency test; (5) the taste test; (6) the odor test; (7) the alcohol test (this test was 22.9 per cent, and was within the specifications for Donnatal elixir); (8) the phenobarbital content test (this test showed 14.0 milligrams per 5 cc’s., and this was lower than Robins Company minimum specifications of 15.4 milligrams); (9) the alkaloid test (this test was positive and normal with Donnatal elixir); (10) the optical rotation test; (11) the optical rotation test again after sixty minutes (the first test showed the optical rotation was 23.2 degrees — the second optical rotation test showed the rotation was minus 10.00 degrees. The chemist testified that the lowest for Donnatal would be plus 86 degrees); (12) the fructose test (the sample contained fructose; “this is entirely different from Donnatal elixir”); (13) the reducing sugar test; and (14) the running of a tracer test. Although the chemist testified to making these tests, he admitted that he could not determine what the substance was.

      . “The practice of pharmacy in the State of Texas is declared a professional practice affecting the public health, safety, and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in the State of Texas. This Act shall be liberally construed to carry out these objects and purposes.”

      . “Since a very early time the courts have been committed to the doctrine of giving statutes which are enacted for the protection and preservation of public health an extremely liberal construction for the accomplishment of their objectives. The public and social purposes served by such legislation greatly exceed the inconvenience and hardship imposed upon the individual, and therefore the former is given greater emphasis in the problems of interpretation. Therefore the courts are inclined to give health statutes a liberal interpretation despite the fact that such statutes are primarily penal in nature and frequently impose criminal penalties. In most cases the proper enforcement of health laws is dependent upon administrative officers and agencies upon whom the efficacy of such legislation is dependent. While the courts have usually employed a rather rigid interpretation of statutes granting powers to administrative agencies, this rule has notably been relaxed in the interpretation of statutes granting powers to boards having control over public health.”


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    REPUBLIC NATIONAL BANK OF DALLAS et al., Petitioners, v. Charley H. STETSON et ux., Respondents.
    No. A-10443.
    Supreme Court of Texas.
    April 28, 1965.
    Rehearing Denied May 26, 1965.

      Bradford Pickett, Liberty, Baker, Botts, Shepherd & Coates, Wm. R. Choate, Houston, with above firm, for petitioners.
    Zbranek & Friend, Liberty, for respondents.
   POPE, Justice.

Republic National Bank of Dallas, as executor of the estate of Wirt Davis, sued Charley H. Stetson in trespass to try title to recover two enclosures occupied and claimed by Stetson. Stetson, by counterclaim, asserted ten years’ limitation title to the enclosed tracts but he contended that Davis orally gave him enough additional acreage to total 160 acres. The jury found that Stetson had perfected limitation title to the two enclosures and also that Wirt Davis Sr. on March 28, 1947, orally gave Stetson the enclosures “plus sufficient additional acreage to aggregate 160 acres.” The trial court rendered judgment for Stetson for 160 acres, and the Court of Civil Appeals affirmed. 382 S.W.2d 775.

Plaintiff Bank urges that (1) Stetson, by executing two acknowledgments of tenancy after he perfected limitation title, destroyed his own claim to limitations, because the tenancy agreements operated as estoppel by deed, (2) one of the tenancy agreements was in fact a deed, and (3) the oral gift was void because it did not describe the lands given. The parties stipulated that plaintiff Bank had record title to the lands subject to Stetson’s claims of limitations and parol •gift. It is our opinion that plaintiff Bank is wrong in the first two contentions and that Stetson’s judgment for the two enclosed tracts should be affirmed. Bank’s third contention is sound. The judgment awarding Stetson an additional undescribed eighty-one acres located somewhere outside his fences is reversed and rendered for plaintiff bank.

The jury found that Stetson perfected limitation title to the two enclosures prior to March 28, 1947, and those findings are not challenged. Stetson proved that he held continuous adverse possession beginning in 1921 when he fenced one tract of 59.9 acres and another non-contiguous tract of 19.9 acres. Wirt Davis, Sr., owned about 60,000 acres of which Stetson’s two enclosures were a small part. After Stetson fenced the tracts, he did not see Davis, the record owner, until 1934. He saw Davis again in 1940 when Davis, according to Stetson, orally told him that he was giving Stetson 160 acres including his fenced enclosures. Davis died in 1945. On March 28, 1947, a date after limitations had matured title in Stetson, Writ Davis, Jr., sent his foreman to bring Stetson to his attorney’s office. Stetson then signed an acknowledgment of tenancy agreement. This document stated that Stetson’s original entry was as a tenant, that he had always been a tenant, that Stetson knew of no adverse claims to the land and that he at that time was a tenant of the Davis Estate. On November 5, 1954, Stetson, at the behest of Wirt Davis, Jr., signed a second acknowledgment of tenancy, but the instrument omitted all description of land, including the county where the land was located. Some time later the description was added.

Stetson had matured title to the two enclosed tracts before he executed either of the two acknowledgments of tenancy, and they did not divest him of that title. Plaintiff Bank argues that Stetson is bound by the recital of facts contained in his acknowledgment of tenancy and that he is estopped to dispute them. Stetson insists that once his title was acquired through adverse possession it was not thereafter divested by declarations to the former record owner that his possession was not adverse.

A limitation title once consummated, is as full and absolute as any other perfect title, and it is not lost by a subsequent oral statement by the limitation owner that he never intended to claim by limitations. Jobe v. Osborne, 128 Tex. 509, 97 S.W.2d 939 (1936) ; Bruce v. Washington, 80 Tex. 368, 15 S.W. 1104 (1891); 2 C.J.S. Adverse Possession 807 § 208. A written acknowledgment of tenancy by one who has perfected title is also ineffective to divest a limitation title. The precise point was faced in Franklin v. Smith, 265 S.W. 715 (Tex.Civ.App.1924, writ ref.), the court writing:

* * * appellant contends that since it was shown by the undisputed evidence that on the 21st day of September, 1914, appellee Smith executed an instrument whereby he acknowledged that he was a tenant of those owning the record title to the land he now claims by limitation, and since it was shown that appellee’s wife had thereafter contracted with such owner to purchase a part of said land, appellee Smith is estopped from claiming title by limitation.
“We think an answer to the two prop-positions is: * * * and, second, that it having been shown that appellee Smith had perfected his title by limitation prior to the execution of the acknowledgment of tenancy, and prior to the proposed purchase by his wife, such acknowledgment and proposed purchase would not affect the title so acquired by limitation. Such acts on the part of Smith and wife could not serve to destroy their title theretofore acquired and perfected by limitation. Limitation title, like all other sorts of titles, cannot be defeated by a mere gratuitous acknowledgment that takes place subsequent to its acquisition.”

In Brown v. Fisher, 193 S.W. 357 (Tex.Civ.App.1917, writ ref.) the facts showed that Fisher took possession of the land in October 1899. In November 1909, he signed an acknowledgment of tenancy, and Brown filed suit in 1913. Fisher answered by a plea of the ten-year statute of limitations.' In affirming a trial court judgment for Fisher, the Court of Civil Appeals stated:

“ * * * the jury in this case found that appellee was in peaceable and adverse possession of the land in controversy for the full period of ten years prior to November 11, 1909, which was the date of the acknowledgment of tenancy by appellee, and therefore if the jury’s finding on that issue is supported by the evidence, which we hold it is, the acknowledgment of tenancy after the title by limitation was complete would not have the effect to divest title so acquired by appellee out of him, and such acknowledgment of tenancy could only be considered by the jury in passing upon the question of whether the possession theretofore held by ap-pellee had been adverse, hut the same could have no other effect.”

In similar situations, an owner was not estopped by offering to purchase the land in question from the record owner, Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942); nor by partition deeds, Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955); nor by making disserving recitals in a partition deed, Illg v. Garcia, 92 Tex. 251, 47 S.W. 717 (1898); nor by recitals in a boundary agreement, Perry National Bank v. Eidson, 161 Tex. 340, 340 S.W.2d 483 (1960).

Plaintiff Bank relies upon Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626 (1941) in support of its argument that an acknowledgment of tenancy, instead of constituting mere evidence against Stetson, was a legal estoppel. In Greene v. White a grantee under a deed with reservations of the minerals was held estopped by the deed which he accepted and by acts of ratification of the deed. The es-toppel defeated the limitations claim. The deed and subsequent ratification make the difference between that case, where estop-pel is proper, and this one, where it is not.

The second acknowledgment of tenancy, the one dated February 5, 1954, contained the additional clause that “ * * the Undersigned does hereby grant, assign and convey all his right, title and interest in all lands owned or claimed by the Undersigned lying within the boundaries of the tract above identified to the heirs and legal representatives of the estate of the late Wirt Davis.” These words of grant suggest that the principles of Greene v. White may make that acknowledgment effective as an estoppel by deed. However, the undisputed evidence shows that the instrument was signed in blank, and Stetson gave no authority to anyone to fill in the description or alter the document. There being no land described in the deed, it could not operate as a conveyance. Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 849-850 (1946) states the rule that “in all instruments for the conveyance of lands the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty; otherwise, the instrument is void under the Statute of Frauds.” Accord, Reserve Petroleum Co. v. Hodge, 147 Tex. 115, 213 S.W.2d 456, 7 A.L.R.2d 288 (1948); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Norris v. Hunt, 51 Tex. 609 (1897); Johnson v. Granger, 51 Tex. 42 (1879); 4 Lange, Tex.Land Titles, § 601. We conclude, therefore, that neither of Stetson’s acknowledgments operated as an estoppel against his limitation claim.

Plaintiff Bank urges that the acknowledgments, in any event, were sufficient to prove an estoppel in pais. Plaintiff Bank requested only a part of the issues which comprise the elements of an estoppel in pais, Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). The issues were refused by the trial court, and Bank failed to preserve the point before the Court of Civil Appeals. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979, 980 (1948). Its argument that it was entitled to judgment as a matter of law upon this theory cannot be sustained since the evidence presented disputed issues of fact.

Plaintiff Bank’s contention that Stetson failed to prove that Wirt Davis, Sr. made a parol gift to Stetson of eighty-one acres is sustained. Stetson asserted adverse possession only to the seventy-nine acres inside his two enclosures. His claim of ownership of enough to make a total of 160 acres is based entirely upon his pleadings and proof of a parol gift. The jury found that in 1940 Wirt Davis, Sr. orally gave Stetson the lands described in plaintiff’s petition, that being the enclosures, plus sufficient additional acreage to aggregate 160 acres; that Stetson “had possession of said premises with the consent of said Wirt Davis, Sr., or his agents,” and that “Stetson made permanent and valuable improvements on said premises in reliance on said

Stetson at no time has furnished any identity of the eighty-one acres outside his enclosures which he says Wirt Davis gave him. The land was identified hy no fences, no description, no pleadings, no evidence. It could not be located by the improvements inside the enclosures. When questioned at the trial, Stetson first said that Davis gave him the “home place” and that it contained 160 acres. He did not otherwise identify or locate the land. On closer questioning he testified that Davis did not mention the acreage. At the end of the trial, no one knew or had data from which he could determine the boundaries of a tract of 160 acres which would include the two enclosures. To solve the problem, the court ordered a surveyor to locate 160 acres including and surrounding Stetson’s enclosures. In the absence of authority for this procedure with respect to a parol gift of undescribed lands, the courts below have reasoned that the situation is analogous to that of an adverse possessor whose constructively possessed lands have been so located. The Court of Civil Appeals relied upon Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902 (1924) in which case the trial court ordered a survey which would include the lands actually possessed and an additional acreage of lands constructively possessed by the adverse claimant for a total of 160 acres.

There is no analogy between a parol gift of unidentified lands and constructive possession of unidentified lands. The acquisition of lands by limitations and by parol gift proceed upon contrary theories. The statutes permit adverse possession, but prohibit parol gifts. The policy behind statutes which permit adverse possession is the settlement and repose of titles. Wilson v. Daggett, 88 Tex. 375, 31 S.W. 618 (1895). The Statute of Frauds, Article 3995(4), Vernon’s Ann.Civ.St., and the Statute of Conveyances, Article 1288, V.A. C.S., prohibit parol conveyances of land, and the reason for those rules is the avoidance of uncertain and unsettled land titles resting in parol, fraud and perjury. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116, 15 A.L.R. 216 (1921) said:

“Regardless of the disposition of other courts to engraft other exceptions upon a plain and salutary statute which had its origin in prolific frauds and perjuries with which parol contracts concerning lands abounded, this court has always refused to further relax the statute. We think the wisdom of its course has been justified.”

A conveyance of realty must be in writing or fall within the strict requirements of the exceptions which have been strictly enforced. See Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191 (1951); 4 Lange Tex.Land Titles, 270, § 423. It is settled law that the description in a written conveyance must furnish within itself or by reference to some other existing writing, the means or data by which the particular land conveyed can be identified. Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468 (1955); Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945).

In Tidwell v. Cheshier, 153 Tex. 194, 265 S.W.2d 568 (1954) the description was “the following described property lying and situated in the County of Ellis, State of Texas, being approximately 154.63 acres of land in Ellis County, Texas, in two tracts, being out of the Benjamin Monroe Survey, W. J. Ely Survey, F. E. Witherspoon Survey” ; in Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187 (1953) the description was “4,000 of the 5,000 acre block No. 2 hereinabove referred to, said 4,000 acres to be selected by Buyer leaving Sellers 1,000 acres equitably checker-boarded * * in Matney v. Odom, supra, it was “four (4) acres out of the East end of a ten-acre block on the P. Chireno Survey about 2 miles East from the courthouse of the city of Tyler, Smith County, Texas, located on the North side of the Kilgore highway,”; in Douglass v. Texas-Canadian Oil Corp., 141 Tex. 506, 174 S.W.2d 730 (1943) it was “37.1 acres of land in Wood County, Texas,”; in Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935), it was “100 acres out of Blocks 8 and 9 of the subdivision of Jose Maria Pineda Survey, which was patented to Adolphus Stern * * * ”; in Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264 (1886) it was “fifty acres of the J. M. Moss survey, abstract No. 462, situated near the town of Burlington, in Montague county, Texas”; and in Jones v. Carver, 59 Tex. 293 (1883) it was “a piece of land supposed to be forty acres”. In each of these cases, the description was insufficient to satisfy the Statute of Frauds because it did not furnish the means to identify the land.

The description of the land which Stetson asserts that Wirt Davis, Sr. gave him falls short even of that which courts have rejected in the cases cited. Stetson did not know the boundaries of the land given. We can think of no reason that the description of land which is the subject of a parol gift should not be governed by the settled rule for written conveyances. Indeed the dangers which the statutes sought to guard against are greater in the case of oral conveyances. The parol gift of undescribed land to Stetson was void.

We affirm that part of the judgments of the courts below which awarded Charley H. Stetson title and possession of the lands within the two Stetson enclosures. We reverse the judgments below and render judgment that, with respect to the other lands in suit, Stetson take nothing on his cross-action.

SMITH, J., not sitting.

      . “Before Me, the undersigned authority, on this day personally appeared Charley Stetson, well known to me to be a credible person, who being by me first duly sworn on oath deposes and says:
      “That he is a resident citizen of Liberty County, Texas, and is fifty four years of age, * * *. In the Fall of 1916, he moved with his Unde, the said Bud Smith, to the Martinez Survey No. 2 and that he and his Uncle together established the farm where he now lives, said farm being known as Sand Prairie in lower Gammergrass Prairie * * * that affiant went to live on said farm with his Uncle, Bud Smith, as agents for Capt. Talifierro, who owned an interest in the Martinez Surveys Nos. 2 and 8 at that time; * * * That all the time he has been living on said land he has been there as a tenant at will and agent of Capt. Talifierro, protecting said land and preventing any unauthorized use or cultivation or fencing of said land, and that since the time, when Wirt Davis ae-quired said Martinez Surveys Nos. 2 and 8 he has been there as the tenant at will of the said Wirt Davis. That affiant has for the past twenty years farmed a portion of said Martinez Survey No. 2 * * *. That in all the time that affiant has lived on said Survey he knows of no one who has asserted any claim or title against said Wirt Davis or his grantors
      “Affiant further states that he acknowledges himself to be a tenant at will of the children of the said Wirt Davis and of the Executor and Trustee of his Estate, and that he makes no claim to any right, title or interest to any part of said Martinez Surveys Nos. 2 and 8 and the Thomas Cope Survey.
      “/s/ Charley Stetson
      “Sworn to and subscribed before me this 28th day of March, A.D.1947.”

        “/a/ C. R. Wilson
      “Notary Public Liberty
      “County, Texas”

      . “The Undersigned further acknowledges that he is not now and never has occupied or claimed any lands in this county adversely to the claim or title of the late Wirt Davis, his heirs, or the legal representatives of his estate; and in consideration of being allowed to occupy the lands more particularly described in the first paragraph as the tenant at will of the heirs and legal representatives of the estate of the late Wirt Davis, the Undersigned does hereby grant, assign and convey all his right, title and interest in all lands owned or claimed by the Undersigned lying within the boundaries of the tract above identified to the heirs and legal representatives of the estate of the late Wirt Davis.”

      . “Q. Let’s clear up one thing, Mr. Stetson. In this conversation where you say that Wirt Davis, Sr., gave you this home place, how much acreage was that?
      “A. 160 acres.
      “Q. I ask you just a simple question: Presuming that he did give it to you at that time, I think you have testified now on this trial that he gave it to you the first time he ever saw you.
      “A. Yes, sir.
      “Q. And said, ‘Take that 160 acres, Charley.’
      “A. He didn’t tell me 160 acres. He just told me, ‘Charley, I know that is your home. I want you to have it. I told him when he come there and started on me, I said, ‘Now, Mr. Wirt, I can’t be responsible for people in here’ * *


author: DICE, Commissioner.

text:
    Theodore Timothy MATULA, Appellant, v. The STATE of Texas, Appellee.
    No. 38197.
    Court of Criminal Appeals of Texas.
    May 19, 1965.

      J. Lawton Stone, court appointed counsel on appeal only, San Antonio, for appellant.
    James E. Barlow, Dist. Atty. John G. Benavides, Raymond A. Wietzel and Earl C. Hill, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, twelve years.

The state’s evidence shows that on the night in question, Officer Donald L. McKenzie, of the city of San Antonio, while on routine patrol around 2:36 a. m., discovered that a building occupied by the B. & M. Mattress Company at 1312 South Hackber-ry, had been broken into and burglarized. Entrance into the building had been gained through a door by prying a hasp therefrom. A safe in the building had been moved from the front office to a back room, where it was lying on its back with the knob knocked off and the door open. Approximately $440, some of which was in an Alamo National Bank money bag, was missing from the safe. A coke machine had been broken into and the money in the machine taken. A coin changer was also missing from the coke machine. An attempt had been made to break into a cookie vending machine.

It was further shown that on the night in question and for some two days before, several officers of the city of San Antonio had occupied an apartment in a certain house in the city, where they observed, and heard conversations between, the appellant and some companions, who varied in number from seven to eight, in an adjoining apartment. Two of the officers were familiar with appellant’s voice and also some of his companions’, so as to positively identify them.

On the night in question, the appellant and two of his companions, Floyd Mene-ley and Gene Kester, were seen by the officers shortly after midnight to drive up in and get out of a Pontiac automobile and go into the adjoining apartment, which was under surveillance. After they had gone inside, a conversation, through the wall, was overheard by the officers, between appellant and his companions about a burglary. In the conversation appellant was heard to say that they “went over a fence and jumped over some mattresses.” The sound of tools rattling could be heard. Some money was heard to hit the floor and Mene-ley said that “getting into this safe was easy, that he had knocked the dial and punched the pin, and then peeled the safe.” Kester stated that “it didn’t make him sore pushing the safe.” The counting of money could be heard and Meneley and Kester were talking about how the money was being split. Between 3 and 5 a. m., Meneley was observed by the officers to leave the apartment with something in his hand and cross over a fence and throw the object into a nearby pond.

It was further shown that between 6:30 and 7 a. m., warrants were secured by the officers for the arrest of appellant and his companions, Meneley and Kester. Around 8 a. m., the officers entered the apartment under surveillance and executed the warrants by placing appellant and his two companions under arrest. Incident to and contemporaneous with the arrest, a search of the apartment was conducted by the officers in which a blue zippered bag containing a large number of burglary tools was found on the living room floor. In the search, approximately $440 in money was found in possession of appellant and his two companions. A bank money bag containing $147.50, similar to the one missing from the safe, was recovered from Kester. The officers also found in the pond where Meneley threw the object into the water a money changer similar to the one taken from the coke machine in the burglary.

In the absence of the jury, an offer was made by the state to stipulate the prior conviction alleged in the indictment for enhancement but appellant refused to enter into such a stipulation and demanded that proof be made of the allegation. In response thereto, the state offered in evidence without any objection from appellant certain authenticated prison records of the Texas Department of Corrections which included photographs, fingerprints, and copies of the judgment and sentence in Cause No. 62,165, styled The State of Texas vs. Theodore Matula, on the docket of the 144th District Court of Bexar County, in which the defendant named therein was convicted in said court of burglary. Proof was made by the testimony of a fingerprint expert that appellant was the person so convicted.

Appellant did not testify but called one witness in his behalf who testified that on the day preceding the burglary he had dinner with the appellant in the city of Galveston at 12 noon and that he last saw him at 3 p. m. in that city.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence.

We overrule appellant’s contentions that the evidence is insufficient to sustain the conviction.

The claim of a fatal variance between the allegation and the proof as to the date of the prior conviction is without merit. The indictment alleged that appellant was previously convicted on the 23rd day of May, 1963. While the copy of the judgment introduced in evidence recited that the trial and conviction was on the 23rd day of May, A.D. 19563, the sentence introduced in evidence shows that the conviction was on the 23rd day of May, A.D. 1963.

The further claim that appellant was not sufficiently identified as the person so convicted is without merit. Officer S. O. Hartman, of the identification bureau of the San Antonio police department, whose qualifications as a fingerprint expert were shown, testified that he took the appellant’s fingerprints and compared them with the fingerprints contained in the prison records, and that in his opinion they were made by the same person. His testimony was sufficient to show identification. Robertson v. State, 168 Tex.Cr.R. 35, 322 S.W.2d 620.

We also overrule appellant’s contention that the introduction in evidence of the records of the Texas Department of Corrections, under the authority of Art. 3731a, Vernon’s Ann.Civ.St., constituted a denial of his constitutional rights of cross-examination and confrontation, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. In Spencer v. State, 164 Tex.Cr.R. 464, 300 S.W.2d 950, it was held that records of the Texas Prison System were properly admitted in evidence over objection that the accused was not allowed to cross-examine the person or persons who took the fingerprints and photographs. Pointer v. State of Texas, 85 S.Ct. 1065, April 6, 1965, cited by appellant, is not here controlling because that case dealt with the denial of the right of an accused to cross-examine and be confronted with a witness whose testimony was being reproduced against him at his trial. Here, only records were introduced.

The further contention urged by appellant that reading to the jury the allegation in the indictment of the prior conviction and making proof thereof before the jury had an opportunity to pass upon his guilt or innocence constituted a denial of due process has been by this court rejected. See: Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also: Breen v. Beto, Fifth Circuit Court of Appeals, 341 F.2d 96; Ex parte Stephens, Tex.Cr.App., 388 S.W.2d 199, cer. denied, Stephens v. Texas, 85 S.Ct. 1344.

We have carefully examined appellant’s informal bills of exception and perceive no reversible error.

The judgment is affirmed.

Opinion approved by the court.


author: DICE, Commissioner. MORRISON, Judge MORRISON, Judge.

text:
    Wanda Jean BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 36705.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    Rehearing Denied May 13, 1964.
    On Motion to Vacate Judgment June 27, 1964.
    Judgment Reversed March 8, 1965.
    See 85 S.Ct. 942.
    On Remand from United States Supreme Court May 19, 1965.

      Clyde W. Woody, Houston, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is possession of marihuana; the punishment, five years in the penitentiary.

The state’s evidence shows that on the night in question Ranger Sgt. Jim Paulk and Deputy Sheriffs E. N. Buie and Jim Smith went to appellant’s residence in Ev-erman, Tarrant County, with a warrant of arrest for the appellant’s husband, Billy Joe Barnes. The arrest warrant had been issued by Justice of the Peace F. R. Land, of Lubbock County, upon complaint made by Ranger Paulk before an assistant district attorney (of Lubbock County), charging Billy Joe Barnes and one Johnny Leach with felony theft. The officers, at such time, also carried with them a search warrant purportedly issued by Justice of the Peace J. W. Boorman, Precinct No. One, Place No. Two, of Tarrant County, authorizing a search of the residence of Billy-Joe Barnes for stolen property.

When the officers arrived, Ranger Paulk and Deputy Buie went to the front door and after they had knocked for a considerable length of time someone answered from inside: “Who is there?” Buie replied that he was from the sheriff’s office and had a warrant of arrest. When no one opened the door and quite a bit of commotion was heard on the inside, Officer Buie proceeded to break and enter the house through a window and admit Sgt. Paulk through the door. As Officer Buie was going down the hall he observed the appellant coming out of a half bath in a bedroom. He immediately went into the bathroom, which had only one entrance and exit, and saw a substance which he recognized as marihuana, in the commode, which was in the process of flushing. At such time he grabbed some of the substance from the commode. The substance, upon being examined in the Fort Worth police department crime laboratory, was found to be marihuana. After finding the marihuana in the commode, Billy Joe Barnes was arrested by Sgt. Paulk in a back bedroom, the appellant was placed under arrest, and one Wanda Jean Finchum, who was in another bedroom, was also arrested.

Following the arrests, the officers then proceeded, with the assistance of Deputy Smith, to go outside and search the premises. In the search they found in the back yard under a rock a bottle containing a substance which, upon being examined, was shown to be marihuana.

Appellant did not testify or call any witnesses who gave testimony on the issue of her guilt.

Appellant insists that the marihuana was illegally obtained by the officers under both a void search warrant and warrant of arrest and that for such reason her conviction cannot be sustained.

This contention was first urged by appellant in her motion to quash the indictment on the ground that the grand jury had utilized illegal evidence in returning the indictment against her.

While the court did hear evidence in support of appellant’s motion, it is the rule that the character of testimony or quantum of proof before the grand jury will not be inquired into on a motion to quash the indictment. Terry v. State, 15 Tex.App. 66; Edwards v. State, 73 Tex.Cr.R. 380, 166 S.W. 517. An indictment may not be quashed on the ground that the grand jury received improper evidence. 30 Tex.Jur.2d, Sec. 50, pages 625-628; Dockery v. State, 35 Tex.Cr.R. 487, 34 S.W. 281; Buchanan v. State, 41 Tex.Cr.R. 127, 52 S.W. 769; Bell v. State, 92 Tex.Cr.R. 342, 243 S.W. 1095.

In her brief, appellant refers to her motion to quash the indictment as also a motion to suppress evidence, and urges that we hold such motion to have been well taken.

Recently, in Padgett v. State, Tex.Cr.App., 364 S.W.2d 397, we said:

“While used extensively in the federal courts of this country, a motion to suppress evidence in advance of proffer does not obtain in this state. Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114; Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Spencer v. State, 157 Tex.Cr.R. 496, 250 S.W.2d 199; Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Gonzales v. State [172 Tex.Cr.R. 556], 361 S.W.2d 393. The motion does not qualify as an informal bill under Art. 760e, Vernon’s Ann.C.C.P. We find no authority to suggest a change, and we still follow the rule in this state that timely objection is to be made at the time the evidence is offered. Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715, and cases there cited.”

We adhere to such rule, here.

Upon the trial, the state conceded that the search warrant in the hands of the officers on the night in question was invalid and relied upon the validity of the arrest warrant to justify the officers’ entry upon the premises and seizure of the marihuana.

We shall therefore address ourselves to the question of the validity of the arrest warrant.

Appellant insists that the warrant was invalid because the affidavit upon which it was issued did not state sufficient facts to satisfy the requirements of the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States as interpreted by the Supreme Court of the United States in the cases of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.

The affidavit executed by Sgt. Paulk for the arrest warrant, omitting the formal parts, alleges:

“* * * That heretofore, to-wit: on or about the 29th day of May, A.D. 1962, and before the making and filing of this Complaint, in the County of Lubbock and State of Texas, Billy Joe Barnes and Johnny Leach did then and there unlawfully and fraudulently take from the possession of Southwestern Bell Telephone Company herein called ‘owner’ good and lawful United States currency of the value of over Fifty and No/100 ($50.00) dollars, the same then and there being the corporeal personal property of the said ‘owner,’ from the possession of the said ‘owner,’ without the consent of the said ‘owner,’ and with the intent then and there to deprive the said ‘owner’ of the value of the same, and to appropriate same to the use and benefit of them, the said Billy Joe Barnes and Johnny Leach against the peace and dignity of the State.”

The affidavit and warrant of arrest issued thereon clearly meet the requisites of Articles 219 and 222 of the Code of Criminal Procedure of this State and are valid.

The federal authorities relied upon by appellant are not here applicable, because in those cases the court was passing upon the reasonableness of a search incident to an arrest without warrant or the legality of an arrest warrant issued under Rule 4 of the Federal Rules of Criminal Procedure.

Under the provisions of Art. 223, V.A.C.C.P., the warrant of arrest issued by the magistrate in Lubbock County authorized an arrest in any county of this state. The officers, being legally on the premises, were authorized under Art. 242, V.A.C.C. P., to forcibly enter the house upon being refused admittance.

While legally on the premises, the officers were authorized to seize from the commode that contraband which was in plain view and, having found evidence of a violation of the law, had the right to search the entire premises. Turner v. State, 119 Tex.Cr.R. 323, 45 S.W.2d 205. The arrest of appellant’s husband under a valid warrant authorized a search of the place where the arrest occurred. Lucas v. State, Tex.Cr.App., 368 S.W.2d 605; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION TO VACATE JUDGMENT

MORRISON, Judge

(dissenting).

My brethren overrule appellant’s motion to vacate our judgment herein, and I respectfully dissent. No mandate has been issued, and on June 15, 1964, the Supreme Court of the United States reversed the case of Aguilar v. Texas, 84 S.Ct. 1509.

In light of this decision, I feel that our original opinion of affirmance should be withdrawn; the judgment set aside and reversed for the following reason. Although the contraband in the case at bar was acquired by the officers by means of an arrest warrant based upon a complaint that charged an offense in unequivocal terms, the complaint does not show on its face to have been made by a person who acquired his knowledge by personal observation. In fact, the complaint did not contain affirmative allegations that the affiant spoke with personal knowledge of the matters contained therein, did not indicate any source of the complainant’s belief, and did not set forth any other sufficient basis upon which the finding of probable cause could be made. By specific objection made during the course of the trial, the question of the sufficiency of the affidavit was called to the trial court’s attention and was presented as grounds for reversal on appeal in this Court. The affidavit did not state the facts upon which affiant’s belief is based or the facts upon which the belief of affiant’s informant was based or facts showing the credibility of affiant’s informant.

Such was the case in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, wherein it was held that the complaint was insufficient and that the warrant of arrest used in the federal prosecution was therefore illegal. Until the decision in Aguilar, supra, the rule in Gior-denello had not been applied to state warrants. In Aguilar, the Supreme Court made it clear that the rule in Giordenello was based upon the Fourth Amendment to the Federal Constitution and not upon the Court’s supervisory powers.

This being true, I have concluded that the affidavit upon which the arrest warrant is based does not meet the constitutional requirements set forth in Aguilar and Gior-denello, and the arrest and incident search were unlawful. It should be clearly understood that in my view, such a holding would apply only to those cases in which the fruits gained in the search were admitted into evidence at the trial and the sufficiency of the affidavit of the arrest or the search warrant was challenged in the trial court and in this Court, or the constitutional question is otherwise preserved for review. See also Etchieson v. Texas, 84 S.Ct. 1932, wherein the judgment of this Court in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, was vacated by a per curiam opinion citing Aguilar v. Texas, supra.

On Remand from United States Supreme Court.

MORRISON, Judge.

The offense is possession of marihuana; the punishment, five years.

On original submission we affirmed this conviction. We stayed the issuance of the mandate, and the opinions are not yet reported.

On writ of certiorari, the United States Supreme Court, in a Per Curiam opinion citing Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 and Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, reversed the judgment of this Court affirming the conviction, and the case was remanded for proceedings not inconsistent with the opinion of the Supreme Court. Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, March 8, 1965.

The holding of the Supreme Court of the United States requires that the conviction be reversed.

The judgment is reversed, and the cause is remanded.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Horace CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 37634.
    Court of Criminal Appeals of Texas.
    March 17, 1965.
    Rehearing Denied. April 28, 1965.
    Second Motion for Rehearing Denied June 2, 1965.
    Bliss Daffan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ruben W. Hope, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Our opinion affirming the conviction is withdrawn.

The offense is aggravated assault; the punishment, two years in jail and a fine of $500.

The complaint and information alleged that David L. Cain and Horace Carter (appellant) committed the assault upon Robert Brooks. Severance was granted and Cain testified as a witness for the state.

The evidence shows that, following an argument between appellant and Brooks in a tavern, which resulted in their being asked to leave, Brooks was assaulted on the outside of the tavern and serious bodily injuries were inflicted upon him.

The state’s evidence was to the effect that appellant inflicted the injuries upon Brooks with a hammer, as alleged in the information.

Appellant’s testimony was that Cain inflicted the injuries with a pipe or stick. He denied that he hit Brooks or that he had anything to hit him with.

All of the evidence shows that only Brooks, Cain and appellant (Carter) were present when the assault was committed.

In his amended motion for new trial appellant alleged, newly discovered evidence and attached thereto affidavits of Norman Westmoreland and Joyce Pickett, to the effect that about 10:30 (which was some hours after the assault) David L. Cain told them “I just hit a man in the head with a hammer,” and when asked who he had hit, said “Brooks — you know Brooks.”

The trial judge overruled the amended motion for new trial without hearing, though the allegations as to newly discovered evidence were not controverted.

Appellant’s bill of exception complaining of the overruling of his motion on the ground of newly discovered evidence was refused by the court who assigned as reason that the defendant did not show diligence in obtaining the testimony of West-moreland, and stating that the official papers in the case “reveal that Norman West-moreland was subpoenaed in this case at earlier settings on January 20, 1964 and March 23, 1964.”

The trial judge’s order of refusal also states that the testimony of Westmoreland would not have been admissible as original evidence.

Bystanders bills were filed by the defense and by the state, the principal difference being that the defendant’s witnesses swore that Norman Westmoreland “was not subpoenaed to appear and testify at a setting of said cause on January 20 or March 23, 1964,” whereas the controverting affiants swore “that two subpoenaes were issued upon application by the defense for Norman Westmoreland as a witness at earlier settings of the case on January 20, 1964 and March 23, 1964.”

Had the state controverted the allegations of the motion for new trial as to the newly discovered evidence the court would have been in position to pass upon the contention of the appellant that subpoenas were issued for Westmoreland upon application of counsel for Cain, to testify for Cain at his trial, and that appellant did not know and had no reason to believe that Cain had confessed to Westmoreland that he and not appellant inflicted the injuries upon Brooks.

The trial court was in error in overruling appellant’s motion for new trial without hearing evidence on the allegations of newly discovered evidence.

Also, the trial court was in error in concluding that the newly discovered evidence to the effect that Cain had confessed that he alone committed the assault would not have been admissible as original evidence for the defendant. Harrison v. State, 47 Tex.Cr.R. 393, 83 S.W. 699; Du Bose v. State, 10 Tex.App. 230; Blocker v. State, 55 Tex.Cr.R. 30, 114 S.W. 814; Chenault v. State, 83 Tex.Cr.R. 104, 201 S.W. 657.

We note, in this connection, that the newly discovered evidence was consistent with the testimony of the injured party, Brooks, given at the examining trial, that Cain committed the assault.

Appellant’s motion for rehearing is granted, the order affirming the conviction is set aside and the judgment is now reversed and the cause remanded.

ON MOTION FOR REHEARING

MORRISON, Judge.

The State challenges our consideration of the bystanders bill of exception on the grounds that one of the affiants thereto was not an uninterested looker-on.

We are not authorized to compare the signature on an appearance bond appearing in a supplemental transcript filed by the State since the rendition of our original opinion and to conclude that it was executed by the same person who signed appellant’s bystanders bill of exception as a compurgator.

State’s motion for rehearing is overruled.


author: BELCHER, Commissioner. MORRISON, JUDGE.

text:
    Ex parte Almond G. FOSKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 37970.
    Court of Criminal Appeals of Texas.
    March 31, 1965.
    Rehearing Denied May 12, 1965.
    Robert A. (Boh) Heath, Henry Sanchez, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Ripley E. Woodard, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order issued in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Michigan.

On the hearing of the writ the state introduced in evidence the executive warrant issued by the Governor of Texas which appears regular on its face. It made out a prima facie case authorizing the'remand of appellant to custody for extradition. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579.

Appellant contends that the trial court erred in refusing his offer in evidence of the authenticated copies of the supporting papers accompanying the governor’s warrant, and again erred in refusing his request for a continuance in order to obtain authenticated copies of such papers for his use in rebutting the prima facie presumption that he was subject to extradition. Further, he contends that the trial court erred in remanding him because his testimony, the testimony of his witnesses, and the complaint upon which the governor’s warrant is based defeats the prima facie case by showing that he was not in the demanding state at the time of the commission of the crime, or that he thereafter fled from the state.

In his brief it is insisted by the appellant “that the Trial Court erred in remanding the Appellant for extradition to the State of Michigan, since the State was never able to establish a prima facie case, as the testimony of Appellant and of his witnesses plus the record clearly and uncontradictedly show that the Appellant was not a fugitive from justice and the subject of extradition.”

In support of his contention, appellant points out in Relator’s Exhibit D-17, page 112, the pertinent part of the complaint upon which this proceeding is based, which pertinent part reads as follows:

“The Complaint, on oath and in writing of Donovan Neville taken and made before Basil F. Baker, a Municipal Judge of the City of Flint, in said County, upon the 3rd day of June, A. D., 1964, who being duly sworn, says that heretofore, to wit, on the 9th day of January, A. D. 1964, at the city of Flint, and in the County aforesaid Almon Foskett, having been charged with the offense of leaving the State while in arrears in child support, a felony, and the case of the People of the State of Michigan versus Almon Foskett, Case No. 17996 charging the said Almon Foskett with leaving the State while in arrears in child support, a felony, having been set for trial on January 9, 1962, before Donn D. Parker, Circuit Judge, for Genesee County, Michigan, the said Almon Foskett did unlawfully and feloniously abscond from the County of Genesee and from the State of Michigan, and as a result the bail bond in the amount of Two Thousand ($2,000.00) Dollars insuring the appearance of said Almon Foskett at the said trial was forfeited by the said Judge Donn D. Parker, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan, wherefore the said Donovan Neville prays that the said Almon Foskett may be apprehended, and held to answer this complaint, and further dealt with in relation to the same as law and justice may require.”

“ * * * Further, the Appellant points out that the uncontradicted testimony of the Appellant and his witnesses clearly and unequivocally shows that the Appellant was not in the demanding state at the time alleged in the complaint, and clearly and unequivocally show that he did not thereafter flee from the demanding state. The Appellant here is not inquiring into his guilt or innocence, but merely whether or not he is a fugitive from justice.”

The statute of the State of Michigan defining the offense here charged is as follows:

“Section 28396 (1) ABSCONDING ON OR FORFEITING BOND WHERE FELONY CHARGED; PENALTY, Sec. 199a. Any person who shall abscond on or forfeit a bond given in any criminal proceedings wherein a felony is charged shall be deemed guilty of a felony. (CL ’48, 750.199a [Pub.Acts 1949, No. 94].)”

The governor’s warrant recites that appellant is charged in the State of Michigan with the crime of absconding and forfeiting bond where a felony is charged.

On cross-examination the appellant testified as follows:

“Q: How long has it been since you left the State of Michigan, Mr. Foskett?
“A: I left there the first of November, 1961.
* * * * * *
“Q: And were you under a bail bond, released under a bail bond at that time?
“A: Yes, sir.
“Q: What was the amount of that bond?
“A: It was my understanding it was $2000.
* * * * * *
“Q: You were under bail bond when you left Michigan to appear in a non-support case and you knew it, is that correct?
“A: Yes.
* ‡ ‡ * ‡ ‡
“Q: Did you ever go back to Michigan to make your appearance on that bail?
“A: No, sir, I haven’t.
* * =k * * *
“Q: And you knew that your bond would be forfeited, is that correct?
“A: Yes.
“Q: Why didn’t you go back anyway later?
“A: I couldn’t tell you.
“Q: Instead of going back to Michigan you changed your mind and went elsewhere ?
“A: Yes, sir, I wound up in Texas.
“Q: And it is your contention since you arrived in Texas in December of 1961 and you have been here ever since is that what you are claiming?
“A: That is right.
“Q: You don’t deny you are the man who is wanted in this case in Michigan, do you?
“A: Well, as I understand it now I am the same man.
“Q: You do have the same name and you do have such a charge against you?
“A: Yes, sir.”

The state is not bound by the date alleged in the accusatory pleading and may prove that the offense was committed before, on, or after the date alleged, if the date is proven to be anterior to the presentment of the indictment or information and not so remote as to be barred by limitation. 1 Branch 2d, 457, 459.

In Ex parte Beeth, 142 Tex.Cr.R. 511, 154 S.W.2d 484, 485, this court said:

“ * * * the complaint charges the offense occurred in September, 1939, a date he was not in the state, but his testimony affirmatively shows he was therein within a few months of the date alleged. If there were no such testimony, the state would be bound by the date in the complaint; but, in the state of the record, the state is not bound by the September, 1939, date. The state is not bound by such date either at trial or on extradition proceedings. Branch’s Annotated Penal Code, Sec. 439, p. 231, and authorities there cited; Williams v. Robertson, 339 Mo. 34, 95 S.W.2d 79; People of State of Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S.Ct. 58, 52 L.Ed. 121; Keeton v. Gaiser et al., 331 Mo. 499, 55 S.W.2d 302; Scott on Interstate Extradition, page 144.
“Prosecution will be sustained by proof of a date anterior to the presentment of the indictment or complaint, provided it be within limitation. Under the law of Arizona, as shown by the proof (S.F. 13, 14), the crime charged is a felony. In the absence of proof to the contrary, the law of Arizona on limitation would be the same as Texas and there is no proof concerning limitation under Arizona law, Article 180, C.C.P. of Texas, thus controls, and April, 1939, is within the three-year period there prescribed.
“In the case of Williams v. Robertson, supra, the authorities are reviewed on the subject of the state being bound, in an extradition proceeding, by the date alleged in the complaint, and establish that it is not so bound.”

The testimony of the appellant showing that he was in the State of Michigan during the limitation period and prior to the filing of the complaint against him and before he absented himself from the state was sufficient proof that he was in the demanding state on the date the offense was committed.

The refusal to admit in evidence the supporting papers offered by the appellant and the denial of the continuance, when considered with appellant’s testimony, was not reversible error.

The appellant being properly remanded for extradition, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, JUDGE.

Upon reconsideration of this case we have concluded that we properly decided this appeal, but upon an incorrect theory. As stated, appellant was charged in the State of Michigan with “Absconding and forfeiting bond where felony is charged”, which itself is a felony under the laws of Michigan. Appellant’s absconding resulting in the forfeiture of his bond, which forfeiture occurred on January 9, 1962, constituted the gravamen of the Michigan felony upon which this extradition is sought.

Appellant by his own testimony placed himself in Texas on such date. Section 6 of Article 1008a Vernon’s Ann.C.C.P. authorizes the surrender of a person who commits an act in this State intentionally resulting in a crime in the demanding State. This is such a case.

Appellant’s motion for rehearing is overruled.


author: MORRISON, Judge. DICE, Commissioner.

text:
    Michael Daniel CONLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 37809.
    Court of Criminal Appeals of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.
    Second Motion for Rehearing Denied June 2, 1965.

      Richard W. Vaughan (court appointed), Houston, John W. O’Dowd (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Bohn Phillips, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with two prior felony convictions alleged for enhancement; the punishment, life.

Hardwareman McKinnon testified that on the day charged in the indictment he observed appellant and one Hefty, who were strangers to him, in his neighborhood store, and that appellant engaged him in a long conversation about various items of merchandise. After their departure he noticed that a television set with a value of $140.26 was missing and later in the day discovered that a Waring blender was also gone. Both items which he identified in detail were returned to him a few days later by the police, and he identified both appellant and Hefty in a police lineup.

Officer Kirkpatrick testified that a few days after the theft he had occasion to arrest appellant at a tourist court, and when they opened the trunk of an automobile parked adjacent to the cabin they were occupying he discovered the Waring blender in question.

Officer Kimble testified that he had a conversation with appellant and Hefty while they were in custody, and as the result of such conversation he recovered the television in question at Rock’s Drive-In. He stated that it was not his practice to reduce confessions to writing where he recovered the stolen property.

The prior convictions were stipulated. Appellant did not testify or offer any evidence in his own behalf.

Appellant contends that the court erred in not affording him a separate hearing prior to permitting the officers to testify as to the finding of the blender and the television. It should be noted that none was requested nor was any issue raised by cross examination or otherwise as to the volun-tariness of appellant’s statement to the officers about where they might find the stolen merchandise.

Appellant’s reliance upon Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, cannot be sustained because no issue of voluntariness was raised. See Foster v. State, Tex.Cr.App., 386 S.W.2d 288, decided February 3, 1965; Miller v. State, Tex.Cr.App., 387 S.W.2d 401, decided February 3, 1965; and Garrett v. State, Tex.Cr.App., 387 S.W.2d 53, decided January 27, 1965.

Appellant was indicted under the name of Michael Daniel Conley. When he personally and by counsel stipulated that Michael Daniel Conley had been convicted in the prior cases alleged in the indictment for enhancement, he thereby stipulated that he was the same person.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant strenuously insists that the evidence was insufficient to establish the two prior convictions alleged for enhancement.

It is first contended that although the two prior convictions were stipulated, appellant was not identified as the person so convicted. Franklin v. State, 154 Tex.Cr.R. 375, 227 S.W.2d 814, is cited and relied upon in support of appellant’s contention.

In our original opinion we held that when appellant, indicted under the name of Michael Daniel Conley, personally and by counsel stipulated that Michael Daniel Conley had been convicted in the prior cases alleged for enhancement he thereby stipulated that he was the same person. We adhere to such holding. It should also be pointed out that, in addition to the stipulation, the state introduced in evidence certain authenticated prison records which contained, besides the judgments and sentences in the two cases, a photograph and physical description of the inmate, Michael Daniel Conley, named therein. With the photographs and physical description before them, the jury could conclude that appellant, who was present in the courtroom, was the person named in the two judgments of conviction. Such fact, alone, distinguishes this case from Franklin v. State, supra, cited by appellant. Also, in Franklin v. State, supra, the accused, who was prosecuted as “Yvonne Franklin alias Viola Ducrest,” did not stipulate that the person named in the indictment had been previously convicted but merely stipulated that one Yvonne Franklin was the same person as Viola Ducrest, the latter being the name of the defendant in the two prior judgments of conviction.

It is next contended that there was a fatal variance between the allegation and the proof as to the date of one of the prior convictions. Having stipulated that the prior conviction was on the date (May 29, 1957) alleged in the indictment, appellant is in no position to urge such contention.

The contention now urged by appellant in his motion for rehearing that reading to the jury and offering proof of the allegations of the indictment charging the prior convictions, before determining the issue of his guilt of the primary offense, constituted a denial of due process has been rejected by this court. See: Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also: Breen v. Beto, Fifth Circuit Court of Appeals, 341 F.2d 96.

The motion for rehearing is overruled.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Milton Mason SANSOM, Appellant, v. The STATE of Texas, Appellee.
    No. 37967.
    Court of Criminal Appeals of Texas.
    April 21, 1965.
    Rehearing Denied May 26, 1965.
    Gib Callaway, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, a fine of $50.00 and three days in jail.

By a narrative statement of facts, it is shown that Highway Patrolman Morgan was proceeding along a highway in Brown County when he met an approaching automobile being driven by Jackie Monroe and observed appellant seated therein on the passenger side of the front seat. He noticed that the automobile was “wobbling”, and after passing the same, the patrolman turned his patrol car around and drove up behind them. He turned on his flashing red signal light and stated that “I could see enough through the back window of the car that I could tell that the two men in the front had exchanged, and as above stated, when I drove up beside the car, Sansom (appellant) was under the wheel and the other man sitting on the seat beside him.” In response to the officer’s flashing red signal, appellant brought the automobile to a halt.

Morgan stated that appellant was “drunk” and that Monroe was “very drunk”. A search of the automobile disclosed several bottles of Vodka, a quart of whiskey, and one or two dozen beer cans, some of them empty and some still unopened.

Officers Fowler and Reynolds stated that the appellant was “drunk” and that Jackie Monroe was in the car and was also “drunk”.

The appellant testified that after purchasing “a lot of whiskey and beer” and beginning their journey along the public road, “I realized that Jack Monroe was very drunk, and I was under the influence of liquor”. According to appellant''-' Monroe would not let him drive and when the “motorcop” flashed his red light he forced his way under the wheel and immediately drove the automobile onto the shoulder of the road and stopped. He further stated that’ “I took the wheel solely and only for the purpose of stopping the car in obedience to the officer’s signal.”

Appellant contends that the trial court erred when it refused to give his special requested charge #2, which reads as follows:

“If you believe the defendant took the wheel in this case for the purpose of parking said car, and with no intention of running away, you will acquit the defendant. * * * ”

We have concluded that appellant’s contention is without merit and deem our holding in Butterfield v. State, 167 Tex.Cr.R. 64, 317 S.W.2d 943, to be controlling. If appellant here is found in a predicament, it is of his own doing, and he may not by such conduct claim the benefit of a defense to which he is not entitled.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Ex parte Henry Roland STARR.
    No. 38406.
    Court of Criminal Appeals of Texas.
    May 12, 1965.
    Eldon Lee Bell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kenneth E. Blassingame, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Relator was convicted in Criminal District Court of Dallas County of a felony and on April 6, 1965 was sentenced to a term of not less than 1 day nor more than 120 days in the penitentiary, sentence credited so as to begin December 28, 1964.

Relator has served the 120 day sentence without having been delivered to the Department of Corrections. The District Attorney of Dallas County agrees that he should be released immediately.

A question having arisen as to whether the Sheriff is authorized to release a prisoner he is ordered to deliver to the State Department of Corrections, and whether in view of Art. 119, Vernon’s Ann.C.C.P. a District Judge has authority to order a prisoner released, relator applied for and was granted a writ of habeas corpus by District Judge Henry King, returnable to this Court as provided in Art. 119, V.A.C. C.P.

The undisputed facts showing that relator has served his sentence of 120 days, the Sheriff of Dallas County is directed to release him.

No motion for rehearing will he entertained. The clerk is directed to issue mandate forthwith.


text:
    John Cecil McKENZIE, Appellant, v. The STATE of Texas, Appellee.
    No. 38272.
    Court of Criminal Appeals of Texas.
    May 19, 1965.
    Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jim Miller, Neil English and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of marijuana; the punishment, fifteen years.

Narcotic officers Taylor and Zapata testified that on the night in question they parked their unmarked police car which was equipped with a long antenna and proceeded toward a cafe. As they did so, appellant and a companion drove up, parked their automobile in a lighted parking lot near the cafe and proceeded toward its entrance. While facing the officers, they appeared to nudge each other and each man tossed a roll of tin foil under or near an air conditioner which protruded from the cafe window. The officers rushed to the tin foil rolls, examined the contents, and from their experience on the narcotic squad, concluded that it resembled marijuana, and they then apprehended the two men. Appellant’s companion had not entered the cafe at the time of his capture, but appellant had and was in the back of the cafe. The chain of custody was established, and by expert testimony it was shown that each package contained marijuana.

Appellant called Mrs. Bradford, the manager of the cafe, who testified that appellant had been in the cafe long enough to ask her for some change before the officers entered and arrested him. He also called Mr. Phillips who testified that appellant entered his barber shop while Walter Brown was in the barber chair, that appellant told Brown that he had returned his automobile and that after appellant left he heard a commotion and went to the door of his shop and observed that the officers had placed appellant under arrest. Brown corroborated Phillips testimony. Appellant, testifying in his own behalf, denied that he had thrown any object to the ground.

The jury resolved the conflict in the testimony against appellant, and we find the evidence sufficient to support the conviction.

Questions were propounded to appellant and his witness Bradford concerning a threat made by appellant’s companion, with whom he was arrested on the night in question, toward Officer Taylor in the hall of the courthouse during the noon hour recess in appellant’s presence. Appellant relies upon Rodriquez v. State, 170 Tex.Cr.R. 275, 340 S.W.2d 41, and Houghton v. State, 171 Tex.Cr.R. 91, 345 S.W.2d 535, which were reversed because of the admission of evidence relating to extraneous offenses not related to the charge then before the court. In these cases, there were timely objections whch were overruled. In the case at bar, objection was made to the questions propounded to the witness Bradford, and they were sustained. When the question was asked appellant, no objection was made.

The State relies upon Richard v. State, 97 Tex.Cr.R. 448, 261 S.W. 587. See also our recent opinion in Baimbridge v. State, 171 Tex.Cr.R. 395, 350 S.W.2d 923. Both cases are authority for the rule that any threat made by the accused toward the prosecuting witness is admissible. The questions in the case at bar were couched on the premise that both appellant and his companion at the time of arrest were present when the threat was made. The appellant and his witnesses denied that they heard any such threat; no proof was offered showing that such threat had been made, and appellant’s counsel assured the court that he had been present “out there” in the hallway and that appellant “didn’t hear it.” From this we gather that some incident did occur in the hallway; therefore, the questions were not asked in bad faith and do not constitute reversible error.

The objection to the question asked Mrs. Bradford about “junkies” was promptly sustained, and the appellant asked for no further relief. No error is preserved. Matlock v. State, Tex.Cr.App., 373 S.W.2d 237. It also appears that the word “junkies” was used on redirect examination of Officer Taylor, and no objection was made thereto.

We find no error in the questions propounded to the witness Brown because Officer Zapata testified without timely or proper objection to the finding of marijuana particles in the automobile which appellant testified he had just returned to Brown prior to his arrest.

Finding no reversible error, the judgment is affirmed.


text:
    William Marlon BRAMLETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38088.
    Court of Criminal Appeals of Texas.
    April 21, 1965.
    Rehearing Denied June 2, 1965.
    Winder-& Weatherly, by W. Alfred Winder, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., John A. Brady, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The appeal is from a conviction upon a plea of guilty before the court with punishment assessed at four years for violation of Art. 1536 P.C., which reads:

“If any carrier to whom any money, goods, or other property, shall have been delivered, to be carried by him; or if any other person, who shall be intrusted with such property shall embezzle or fraudulently convert to his own use any such money, goods, or property, either in the mass, as the same were delivered or otherwise shall be punished as prescribed for theft.”

The agreed facts show that a check in the sum of $1463.00 was delivered and intrusted to appellant at a department store by one of the payees in the check to be carried to a certain bank and cashed and the proceeds returned to the payee; that the check was cashed at the bank and the proceeds received by appellant, who failed to deliver same to the owner or to account therefor.

It is appellant’s contention and sole ground for reversal that he was not “a carrier” as alleged in the indictment.

The authorities he cites are civil law decisions relating to who are common carriers and are not deemed applicable.

Art. 1536 P.C. is one of several statutes relating to embezzlement and conversion by one intrusted with the property of others.

“Carrier,” as used in Art. 1536 P. C., includes anyone who is intrusted with money or property for delivery according to an agreement or undertaking. 21 Tex.Jur.2d, Sec. 24, p. 612.

See also Reside v. State, 10 Tex.App. 675; De Gaultie v. State, 31 Tex. 32.

The judgment is affirmed.