author: MORRISON, Judge.

text:
    Dorothy Jenkins BETHUNE, Appellant, v. The STATE of Texas, Appellee.
    No. 35035.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.
    Rehearing Denied Jan. 23, 1963.
    Foreman & Walsh by William F. Walsh, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, life. The appellant, being a female, was charged as a principal.

Prosecutrix testified that she had come from West Texas to Houston looking for work as a vocalist in the entertainment field; that she was in destitute circumstances; that she was introduced to Delmus Bethune, who made some telephone calls and agreed to take her to meet a theatrical agent; that they drove to a motel, where Delmus said the agent was delivering a contract to some other entertainers, but when they entered the cabin designated she found it empty. She testified that Delmus choked her into insensibility and, when she regained her senses, found herself naked and Delmus was pouring ice water on her stomach. On cross-examination, it was developed that during this period of time Delmus had intercourse with her.

It was after the above incident occurred that appellant first appeared upon the scene, knocked on the motel door and was admitted by Delmus. At this juncture, Delmus told appellant that prosecutrix tried to call the police in an effort to report that she had been raped and instructed appellant to hand him a coat hanger which he straightened out and used to beat her. Color photographs of prosecutrix’s neck and legs taken later that morning by the police were introduced and showed bruises about her person. Thereafter, appellant announced that it would be futile for prosecutrix to call the police, as she (appellant) was Delmus’ wife and the police would do nothing even if she killed prosecutrix because she had found her in bed with Delmus. Upon entering the motel room, appellant took a locking device, which when placed on the door would prevent anyone from opening the door from either side without the use of a key, and Delmus locked the motel door. Appellant then informed prosecutrix that if she wanted to live she “had better do what she and Delmus wanted her to do”; that there was no chance for her to escape; that she might as well resign herself to it; and that the next morning she would take prose-cutrix home with her and show her how to make some fast, easy money. On more than one occasion when prosecutrix went to the bathroom, she was accompanied by appellant, who threatened her life unless she “did whatever they wanted me to do.” At some juncture in this proceedings, appellant disrobed; prosecutrix was forced to lie on the bed, and a sex orgy of appalling proportions took place. Prosecutrix was forced, by pulling her hair, to commit acts of oral sodomy on Delmus. Appellant committed similar acts upon prosecutrix; prose-cutrix was forced to submit to an act of rectal as well as vaginal intercourse by Delmus,, and on into the night. Finally, appellant and Delmus went to sleep; prose-cutrix extricated herself from between them on the bed and escaped through the bathroom window. She was picked up in the vicinity of the motel as she was walking barefoot away from the City of Houston by the witness McCreight, who was on his way to work at that early hour of the morning. Prosecutrix was crying and stated she had been raped, was carried to a hospital; the police were summoned, and in the course of their investigation apprehended appellant and Delmus, in the nude, at the motel in question. The police described prosecu-trix’s nervous and bruised condition. This, we think, is a fair summary of the State's case.

Appellant, testifying in her own behalf, admitted that she- had been a prostitute for a number of years, that she had known Delmus for a year before she married him, knew that he associated with other prostitutes and had never seen him work. She stated that on the day charged in the indictment she was separated from Delmus but that she responded to his telephone call and went to the motel in question in a taxi, carrying the locking device, where she found prosecutrix and Delmus. She stated that prosecutrix told her she had been raped and that Delmus instructed her to hand him a coat hanger which he straightened out and used to beat prosecutrix. She denied that any sexual act, normal or otherwise, occurred after her arrival. She admitted she told prosecutrix that if she continued to cry “rape” she could not be responsible for what might happen to her because of Delmus’ violent and dangerous nature, and that all three parties were in the nude in the cabin together most of the night. She denied that she and Delmus were in the business of forcing women into prostitution.

Appellant’s first contention is that the court erred in failing to instruct the jury that they might find her guilty of the lesser included offense of assault. We need not pass upon the sufficiency of the obj ection to call such omission to the court’s attention because we have concluded that the facts did not warrant the giving of such a charge. The assault which is the lesser included offense to the crime of rape, or assault with intent to rape, is one which is perpetrated in furtherance of the design to commit, the sexual offense. Appellant admitted that she handed Delmus a coat hanger with which he committed an assault. This assault was for the sole purpose of preventing prosecutrix from making an accusation of rape after the act of intercourse brought out on cross-examination had occurred. This is a separate and independent assault and is not the type of an assault .whiqhds a lesser included offense to the rape relied upon by the State.

• Appellant also contends that the - court erred in failing to require the State i to elect as to which act of rape they relied upon for a conviction. It should be borne in mind that the evidence shows several , acts of intercourse between Delmus and .prosecutrix occurring in the same bed on the same night. In such a case,, no election ■is required. Ledesma v. State, 147 Tex. Cr.-R. 37, 181 S.W.2d 705; France v. State, !.148 Tex.Cr.R.. 341, 187 S.W.2d 80; and Torres v. State, Tex.Cr.App., 331 S.W.2d 929.

- We find no error in the court’s failure to- elect between a series of acts which were developed by the State and one which was developed by accused.

It is further contended that the court erred in refusing her requested charge to the effect that the force or threats employed in the charge must have been leveled at the prosecutrix prior to the act of sexual intercourse. The court’s charge as given clearly told the jury that the force and threats must have been exerted prior to the commission of the offense and precluded a finding of guilt, such as appellant now suggests, upon the testimony concerning the prior rape and appellant’s admissions that force and threats in which she participated were leveled against prosecutrix in an effort to stop her from reporting the rape.

We have given much thought to appellant’s complaint that the State was permitted to recall the prosecutrix after the defense had rested to propound again to her some of the questions developed on direct examination. We are well aware of the danger that might lie in allowing such a practice. We fail, however, to find here such an abuse as would call for a reversal of this conviction.

Dr. Adel’s testimony was so inclusive as to amount to harmless error, if error at all.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. DICE, Commissioner.

license: Public Domain

text:
    Leo DAMARIS, Appellant, v. The STATE of Texas, Appellee.
    No. 34883.
    Court of Criminal Appeals of Texas.
    Nov. 14, 1962.
    Rehearing Denied Jan. 9, 1963.

      James S. McGrath, Walter M. Sekaly, Joe B. Goodwin, Beaumont (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, W. C. Lindsey, Dist. Atty., and Ken Parker, Asst. Dist. Atty., Beaumont, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction for knowingly using or permitting the use of property for book making (Art. 652a, Sec. 4, Vernon’s Ann.P.C.); the punishment, one year in the penitentiary.

Section 7 of Art. 652a provides “that any party to a transaction prohibited by this Act may be required to furnish evidence and testify, but after so testifying such person shall be exempt from prosecution with reference to any transaction about which he is required to furnish evidence.”

Appellant’s formal Bill of Exception No. 1, filed with the clerk of the trial court within the time provided in Art. 760d, Vernon’s Ann.C.C.P., is before us, the trial court not having refused to approve it within the time allowed by said Art. 760d, V.A.C.C.P.

Bill of Exception No. 1 certifies that evidence was presented which proved all of the allegations of appellant’s Plea in Bar, which Plea alleged that in a cause styled The State of Texas versus Certain Gambling Paraphernalia, appellant “was required to furnish evidence and testify with reference to the identical transaction upon which the present indictment in this cause is predicated; that this testimony was required by the court after the defendant had respectfully refused to answer and claimed his right to refuse to testify on the grounds that an answer to the questions may tend to incriminate him.”

Under the facts certified in said bill of exception the appellant showed himself exempt from prosecution for violation of Sec. 4 of Art. 652a, V.A.P.C., under the terms of Section 7 of said statute.

In Dodson v. State, 89 Tex.Cr.R. 541, 232 S.W. 836, in construing what is now Art. 639, P.C., a part of the gaming law, this Court said:

“It reflects the judgment and declaration of the legislative branch of the government that in the suppression of the gambling vice it was deemed expedient to require participants to give evidence and to extend to them immunity. The option of callhng one who , has engaged in gambling to testify is with the prosecuting officers, but, having exercised the option and secured the testimony by the means provided by the statute, the law operates to make those complying with it immune.”

In Griffin v. State, 43 Tex.Cr.R. 428, 66 S.W. 782, this Court, relying upon what is now Art. 639 P.C., held that the defendant should have been allowed to offer proof that he had been summoned and had testified before the grand jury regarding the transaction upon which his prosecution was based. This language used by Judge Davidson in Griffin v. State is appropriate here:

“If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the state, it exonerates the witness whose testimony is used by virtue of the terms of the statute. Nor does it make any difference at what state of the investigation or trial the evidence of the participant is used.”

For the reasons stated, the judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

DICE, Commissioner.

The state insists that Bill of Exception No. 1 to the court’s action in overruling appellant’s plea in bar should not be considered because the trial court’s attention was never called by the clerk to the filing of the bill, as provided by Art. 760d, V.A.C.C.P.

In construing Art. 760d, supra, it has been the holding of this court that where a bill of exception is filed with the clerk of the court within ninety days after the date notice of appeal is given and no action is taken by the court on the bill within one hundred days after notice of appeal is given the bill must be considered approved by the court. Wortham v. State, Tex.Cr.App., 333 S.W.2d 158, and Lair v. State, Tex.Cr.App., 333 S.W.2d 389.

Recently, in Mansell v. State, Tex.Cr.App., 364 S.W.2d 391, we pointed out that in passing upon bills of exception filed under Art. 760d, supra, and refused by the court after the time allowed by statute had expired, we have consistently declined to consider the failure of the clerk to notify the judge of the filing of such bills, and have considered the bills as filed and approved.

We observe that if, as the státe contends, the bill of exception does not reflect the true facts, the judgment of this court would not be binding in the cause on the issue upon another trial showing different facts.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Miguel BRIONES, Appellant, v. The STATE of Texas, Appellee.
    No. 35192.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.

      Garcia & Warburton by O. B. Garcia, Brownsville, for appellant.
    F. T. Graham, Dist. Atty., Brownsville, Juan E. Gavito, Asst. Dist. Atty., Brownsville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order revoking probation in a burglary case.

On February 2, 1962, appellant entered a plea of guilty in the 138th Judicial District Court of Cameron County to an indictment for burglary and was sentenced to three years’ confinement in the penitentiary.

Execution of sentence was -ordered suspended by the court, and appellant was placed on probation upon certain terms and conditions, among them being that he “Commit no offense against the laws of this or any other state or the United States.”

.On May 23, 1962, a motion was filed by the assistant criminal district attorney of Cameron County to revoke the probation on the ground that appellant had, during the period of probation, committed the offense of burglary, it being alleged that on May 4, 1962, the appellant did unlawfully, by force, threats, and fraud break and enter a house occupied and controlled by Walter P. Hunter, with the intent to commit the crime of theft.

After a hearing on the motion, an order was entered by the court on September 7, 1962, revoking the probation.

At the hearing it was shown by the state’s evidence that Walter P. Hunter was the owner and operator of a hardware store in the city of Brownsville. On May 4, 1962, Hunter closed the business around 6 o’clock, p. m., and went home. Later in the evening he returned to the store between 9:30 and 10:00 o’clock, after hearing a noise over a burglar alarm system connected between his store and his home,, which had the sound of “hammering on steel.” When he returned to the store, Hunter found a window broken on the side of the building opposite an alley and some pieces of glass on top of an oil drum by the window. The window was inaccessible to the general public and was a “welded” type window which could not be opened. Inside the building a hammer which did not belong to Hunter was found lying in front of a steel door which led into the main hardware store, and there was evidence that an effort had been made to pry the door loose.

It was further shown that certain fingerprints (State’s Exhibits 1 and 2) were taken by Police Officer Joe Champion from both sides of the pieces of glass found on top of the oil drum and certain latent fingerprints (State’s Exhibit 3) were also taken from the appellant by the officer. The prints were délivered to the fingerprint division of the Bureau of Identification of the Texas Department of Public Safety for comparison. Fingerprint expert Jack Mercer of the department, whose qualification as an expert' was stipulated, testified that he made a comparison of the fingerprints which revealed that they were identical.

Appellant'insists that the court abused his discretion in revoking the probation because the evidence is insufficient to show that he burglarized the building. It is first contended that the evidence is insufficient because Officer Champion was unable to identify State’s Exhibit 3 as the latent fingerprints taken from appellant. ' ■

While Officer Champion did testify on cross-examination that he had no inde^ pendent recollection of having taken the prints from appellant other than by his, signature on the. card, the officer on his direct examination positively identified the exhibit as fingerprints which he took from appellant. Such discrepancy in the officer’s testimony went to the weight of his testimony rather than its sufficiency to sustain a conviction. Parker v. State, 83 Tex.Cr.R. 81, 200 S.W. 1083.

It is next contended that the proof fails to show that the building was broken into and entered with the intent to steal, as alleged in the state’s motion to revoke. The evidence warrants the conclusion that the building was broken into and entered at night. The act of breaking and entering a house in the nighttime raises the presumption that it is done with intent to steal. Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524.

We find the evidence sufficient to sustain the allegation in the state’s motion that appellant burglarized the building - in question during the period of his probation, and overrule appellant’s contention that .the court abused his judicial discretion in revoking probation. See: Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211, in support of such conclusion.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Joe COMPIAN, Appellant, v. The STATE of Texas, Appellee.
    No. 35201.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated, the minimum punishment for which is 3 days in jail and a fine of $50. (Art. 802 Vernon’s Ann.P.C.)

The judgment appealed from was rendered upon the verdict of a jury assessing a fine of $50, but no jail term.

The punishment assessed being less than the minimum provided by law, reversal of the conviction is required. Malone v. State, 168 Tex.Cr.R. 409, 328 S.W.2d 310; Henderson v. State, 167 Tex.Cr.R. 112, 318 S.W.2d 898, and cases cited.

The judgment is reversed and the cause remanded.


author: BELCHER, Commissioner.

text:
    James B. BUTLER, Appellant, v. The STATE of Texas, Appellee.
    No. 35194.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Plarryette Ber-cu and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from the County Court designated by the statute creating it as the County Criminal Court of Appeals of Dallas County, Texas. Art. 52-159c, Vernon’s Ann.C.C.P.

The appellant was convicted in Corporation Court for operating a motor vehicle without' a license. He appealed to the County Criminal Court of Appeals of Dallas County, Texas, where a trial before the court resulted in a conviction with punishment assessed at a fine of $100.

The jurisdiction of this court in appeals in causes originating in the Corporation Court is limited to convictions where the fine assessed exceeds $100. Trull v. State, 169 Tex.Cr.R. 357, 334 S.W.2d 180.

This court is without authority to enter any order herein other than to dismiss the appeal.

The appeal is dismissed.

Opinion approved by the Court.


text:
    Ray ACKER, Appellant, v. The STATE of Texas, Appellee.
    No. 35140.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Rehearing Denied Jan. 23, 1963.
    No attorney'on appeal for appellant.'
    Henry Wáde, Dist. Atty., John Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, 2 years in the penitentiary.

Sharon Meyer, an eleven-year old girl who was riding her bicycle in the vicinity in question, testified that appellant- and a woman came out of a nearby house, that appellant got into an automobile on the driver’s side and the woman entered on the other side, that appellant . drove the automobile out in the street, where it collided with a parked truck and th'en drove zigzagging down the street until the automobile turned over.

Lloyd Odum, who lived nearby, testified that he heard the noise, went to the overturned automobile, found appellant’ lying partially out of the automobile on the driver’s side; that when he attempted to help the woman from the automobile appellant cursed him; that appellant smelled strongly of alcohol and fell to the ground sometime after he was extricated from the automobile, and expressed the opinion that he was intoxicated. He testified that appellant’s woman companion kept reminding, “Don’t forget, I was driving the car.”

Sharon’s mother testified that when she arrived at the upturned automobile she smelled alcohol on both appellant’s and the woman’s breath, heard them arguing about who was driving, saw appellant trying to escape from the ambulance after it arrived, and expressed the opinion that appellant was intoxicated.

Police officer Lewis testified that when he arrived upon the scene he traced the tracks of appellant’s automobile back to where it had knocked over a mail box and collided with a parked truck. He stated that he heard appellant tell his woman companion to say she had been driving, at which time she shook her head, saw appellant fall as he walked to the ambulance, detected a strong odor of alcohol on his breath, and expressed the opinion that he was intoxicated.

Officer Starks testified that he followed the ambulance to the hospital, that appellant cursed him as he approached him, that he smelled alcohol on appellant’s breath, and expressed the opinion that he was intoxicated.

Appellant introduced the hospital records which, in addition to showing his injuries, also showed that he .had been drinking alcohol. He also called his uncle, with whom he had been drinking beer and whiskey on the day in question, who testified that appellant’s wife was driving the auto- ‘ mobile as they left his house just prior to the wreck. Appellant’s wife also testified that she was the driver. On cross-examination, she denied that she had told officer Starks that appellant was driving.

Officer Starks was called in rebuttal and testified that appellant’s wife, when interrogated at the hospital, first said she had been driving but finally admitted that it was appellant.

The jury resolved the disputed issue as to who was driving against appellant, and we find the evidence sufficient to support their verdict.

There are no formal bills of exception, and the informal bills fail to present any serious question.

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


text:
    Jerry BARNES, Appellant, v. The STATE of Texas, Appellee.
    No. 35098.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    Bryant, Glenn & Thomas by Allen Glenn, Abilene (on Appeal Only), for appellant.
    Leon B. Douglas, Staté’s Atty., Austin, for the State.
   DICE, Commissioner.

The prior opinion delivered in this cause is withdrawn.

The offense is theft of property of the value of over $5 and not more than $50; the punishment, 15 days in jail and a fine of $50.

In the complaint upon which the information is predicated, the affiant states “that I have good reason to believe that '* * but nowhere in the complaint does the affi-ant state that he does believe that the offense was committed.

It has been repeatedly held that, in obedience to the provisions of Sec. 2 of Art. 222, Vernon’s Ann.C.C.P., the affiant to a complaint must state, in addition to his having good reason to believe, that he does believe that the alleged offense has been committed. Cook v. State, 137 Tex.Cr.R. 492, 132 S.W.2d 404; Bell v. State, Tex.Cr.App., 240 S.W.2d 302; and Fowler v. State, 156 Tex.Cr.R. 267, 240 S.W.2d 780.

The complaint being fatally defective, the judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court


text:
    Gonzalo RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35000.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rehearing Denied Jan. 16, 1963.
    Thos. A. Dent, Galveston, for appellant.
    Jules Damiani, Dist. Atty., Galveston,, and Leon B. Douglas, State’s Atty., Austin,, for State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 25 years.

The evidence introduced by. the- state shows that officers, under authority of ⅜ search warrant, entered appellant’s home-where they found 143 grams of ground-up marihuana-in a coffee jar; 190 grams of marihuana in a paper sack and four cigarettes containing marihuana. Appellant’s confession was introduced in which he admitted possessing the marihuana.

The first ground for reversal appears to be upon the erroneous theory that the confession introduced in evidence was not attached to the statement of facts prepared by the court reporter on order of the court upon appellant’s affidavit of- inability to pay for such. The confession marked State’s Exhibit 4, referred to in the statement of facts agreed to by counsel for appellant and counsel for the state and approved by the court is before us, attached to such statement of facts. If appellant’s complaint be that the confession was not copied into the statement of facts we find no merit in such complaint.

Appellant’s remaining grounds for reversal relate to the search warrant and the admissibility of the evidence obtained as a result of the search thereunder.

Art. 316(4) C.C.P. provides that a search warrant name the person in charge of the suspected place and if his name is unknown, that it describe him with accuracy .and direct that he be brought before the magistrate.

The' search warrant described the premises to be searched as being the premises and living quarters of Gonzalo Rodri QUIZ occupied by Gonzalo RadriQUIZ.

A motion was filed by appellant seeking to -quash the indictment and the search warrant because of the variance in the surname Rodri QUIZ in the search warrant and Rodri GUEZ, the name of appellant under which he was indicted. A copy of the search warrant was attached to the motion.

■In support of such motion appellant called Justice of the Peace G. P. Reddell as a witness who identified the search warrant and it was introduced in evidence. Appellant then called as a witness R. R. Cardenas who testified that he lived in Galveston and was an Honorary Consul of Mexico; that he spoke Spanish and had served as interpreter in the courts at Galveston many times. He spelled and pronounced the names Gonzalo Rodri QUIZ and Gonzalo Rodri GUEZ upon request of appellant’s counsel and was asked and answered:

“Q. Now are those the same name? Rodri QUIZ and Rodri GUEZ?

“A. I don’t think so. * * * I never see the second name before. * * * The first name is very common.”

When the state offered testimony as to the search of appellant’s home before the jury, the search warrant was produced and identified in the jury’s absence, and over objection pointing out the variance in the spelling of the surname, the state was permitted to introduce testimony relating to the search, and the marihuana found in such search.

The state’s position is that the variance in the spelling of the name Rodri QUIZ and RodriGUEZ is not material under the doctrine of “Idem Sonans.”

The trial court appears to have agreed with the state for, after hearing the names pronounced by appellant’s witness, he overruled appellant’s motion and objection and admitted the evidence relating to the search.

We do not deem it necessary to cite or discuss the many cases dealing with the doctrine of idem sonans.

Idem sonans means sounding the same. Loven v. State, 145 Tex.Cr.R. 260, 167 S.W.2d 515.

If the attentive ear finds difficulty in distinguishing them when pronounced, names are idem sonans. Identity of sound is .regarded as a surer method of measuring similarity of names than identity of spelling. Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S.W.2d 733.

As to foreign names, it has been held that where evidence is offered on the issue, the question of the application of the doctrine of idem sonans will be determined by such evidence, rather than by the rules of English pronunciation. Hernandez v. State, 53 Tex.Cr.R. 468, 110 S.W. 753.

The record indicates that the state’s objection as to the spelling of the name in the affidavit before the jury was sustained.

It has been held that when the question of idem sonans arises at the trial it is a fact for the jury to decide under proper instruction of the court. Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653.

Be this as it may, there is no showing that appellant sought to have any witness pronounce either of the two names in question before the jury, or that any witness was asked before the jury or would have testified that there was a difference in the sound of the names when pronounced.

Under the record we find no error in the admission of evidence obtained as a result of the search under the warrant.

The judgment is affirmed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Leslie C. BOSTICK, Appellant, v. The STATE of Texas, Appellee.
    No. 35128.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Rehearing Denied Jan. 23, 1963.
    James S. McGrath, Beaumont (on appeal only), for appellant.
    W. C. Lindsey, Dist. Atty., Ken Parker, Asst. Dist. Atty., Beaumont, for the State.
   MORRISON, Judge.

The offense is conspiracy to commit the crime of forgery and passing as true forged instruments; the punishment, 5 years.

In view of our disposition of this case, a recitation of the facts will not be necessary other than to observe that one of appellant’s co-indictees, who had been arrested during the commission of the offense and who had been in custody thereafter, had confessed, plead guilty, was serving his sentence and was brought back on a bench warrant to testify for the State. At the beginning of his testimony, he identified appellant and stated that he knew him on the date charged in the indictment but then denied that appellant had certain checks in his possession or had produced the same for the witness to sign. At this juncture, the prosecutor stated, “Your Honor, at this time the State will allege surprise to what this witness has testified to, and classify him as a hostile witness and proceed accordingly.” Over appellant’s repeated objections that the proper predicate had not been laid, the State, without further proof as to a predicate, was permitted to read the witness’s confession made shortly after his arrest and in the absence of appellant. In ' permitting such evidence, we have concluded that the court fell into error. In the recent case of Crandall v. State, Tex.Cr.App., 340 S.W.2d 36 (1960), this Court reversed a conviction where the record revealed that the prosecutor had not talked to the witness and relied (as in the case at bar) upon the prior statement of the witness without making any effort to refresh the memory of the witness.

Where, as here, the State has the witness in their exclusive custody for a period of one year following the making of the statement and prior to offering the witness, it is incumbent on the prosecutor to take the measures indicated in Crandall before attempting to introduce in evidence a prior statement of the witness which is admissible only as an exception to the hearsay rule.

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

CONCURRING OPINION

WOODLEY, Presiding Judge.

I concur in the reversal of the conviction because appellant’s formal bill of exception No. 1, timely filed with the clerk of the trial court, certifies that at the time the confession of appellant’s co-defendant Anderson was offered it was not shown for what purpose it was offered; that the court refused to instruct the jury that the statement could be considered only for impeachment purposes, and that such. refusal to submit such requested charge was prejudicial to the rights of the appellant.


text:
    Henry Duncan BAXTER, Appellant, v. The STATE of Texas, Appellee.
    No. 35104.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.

      Leonard Brown, San Antonio, for appellant.
    Charles J. Lieck, Jr., Dist. Atty., A. J. Hohman, Jr., Asst. Dist. Atty, San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is contributing to the delinquency of a minor (Art. 534 P.C.); the punishment, 6 months in jail and a'fine of $500.

The information alleged that, appellant contributed to the delinquency of the named boy, who was under 16 years of age, by showing him obscene pictures.

Art. 527, Sec. 2, Vernon’s Ann.P.C. makes it unlawful to knowingly exhibit any obscene picture to a minor. “Obscene” is defined in Sec. 3 of said Art. 527 “ * * * as whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests. Provided, further, for the purpose of this article, the- term ‘contemporary community standards’ shall in no case involve a territory or geographic area less than the State of Texas-”

Under the allegations of the information, it was necessary that the proof show that this statute was violated. Why the state chose to prosecute under Art. 534 P.C. when proof of the same facts would authorize a conviction with a higher punishment under Art. 527, Sec. 2, P.C., is not apparent.

The court in his charge told the jury that it was unlawful to exhibit an obscene picture to a minor. “Obscene” was defined in the charge, but the definition was not that found in the statute making such exhibiting of an obscene picture to a minor an offense. Omitted from the court’s definition was the above italicized portion of the statute.

Appellant’s objection to the court’s charge, that the definition of “obscene” was contrary to and at variance with the definition found in the statute, was well taken.

The state, in relying upon Malone v. State, 170 Tex.Cr.R. 231, 339 S.W.2d 666, overlooks the fact that “obscene” was not defined in Art. 527 as it existed when the Malone case was tried and decided.

The judgment is reversed and the cause remanded.


author: McDonald, Judge.

text:
    Robert JORDAN, Appellant, v. The STATE of Texas, Appellee.
    No. 35195.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.

      No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, Judge.

Appellant was convicted for driving a motor vehicle upon a public highway while intoxicated; the punishment was assessed at a fine of $100.00 and confinement in jail for three days.

There are no formal bills of exception; the only statement of facts is on the hearing of the amended motion for new trial, which alleged newly discovered evidence.

In the absence of a statement of facts on the main trial, this Court cannot properly appraise any error based on newly discovered evidence. In Campbell v. State, 166 Tex.Cr.R. 61, 310 S.W.2d 740, it was held;

“This court cannot properly appraise the merits of the claim that new evidence had been discovered, that it was material to the defense, and would probably produce a different result upon another trial, in the absence of the evidence which was heard upon the main trial or a bill of exception certifying that it contains all the evidence introduced on the trial pertaining to the matter complained of. * * * ”

See 5 Tex.Juris. (2d), p. 265, Sec. 167.

Finding no merit in appellant’s contention, the judgment is affirmed.


text:
    Samuel Leroy MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 35055.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Rehearing Denied Jan. 23, 1963.
    See also 346 S.W.2d 349.
    Raeburn Norris, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgourides and Howell E. Stone, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder ; the punishment, life imprisonment.

The testimony will not he summarized except to state that it is sufficient to warrant the finding that the appellant killed the deceased by shooting her with a gun; and that the testimony of the appellant was that he shot the deceased in self-defense and in defense of his wife.

By formal bill of exception the appellant urges error because of the refusal of the official court reporter to take and the refusal of the trial judge to require her to take full shorthand notes of the closing arguments when timely and properly requested by appellant to do so. After such refusal the appellant was required to proceed in the case over his objection and exception that he was being deprived of a record of the jury arguments including his objections, and exceptions to such arguments, and the rulings and remarks of the court thereon.

The judge in his qualifications to the bill stated that he believed that the law made it appellant’s responsibility to arrange for the making of a record of the arguments, which the appellant refused to do; and that the refusal to take the arguments in the instant case was harmless as he did not recall that any objections were made. But he did not directly and positively find that no objections were made.

Following the filing of the bill as qualified the appellant filed his bystander’s bill. Thereafter, the court filed his bill stating therein that he believed that the appellant’s bystander’s bill did not reflect the true facts in the case. Then the judge directed that subpoenas be issued for the three bystanders to appear in his court. On the hearing they were examined as to matters related in the bill and also about their qualifications as bystanders because of some interest in the case.

A pauper’s affidavit was timely and properly filed by the appellant requesting a transcript of the evidence which was furnished to him.

Art. 2324, R.C.S., Vernon’s Ann.Civ.St. art. 2324, provides as follows:

“Each official court reporter shall:
“Attend all sessions of the court; take full shorthand notes of all oral testimony offered in cases tried in said court, together with all objections to the admissibility of the evidence, the rulings and remarks of the court thereon, and all exceptions thereto; take full shorthand notes of closing arguments when requested to do so by the attorney for any party to such case, together with all objections to such arguments, the rulings and remarks of the court thereon, and all exceptions thereto.”

In considering a similar statute where the trial court had failed to require the court reporter to record the arguments of counsel to the jury under the Court Reporter Act, 28 U.S.C.A. § 753(b), the Fifth Circuit, U. S. Court of Appeals in Stephens v. U. S., 289 F.2d 308, 309, (1961), said:

“The Act is mandatory in its requirements, and it has been held that its very purpose was to satisfy ‘the long-felt need for a verbatim record of all court proceedings, particularly in criminal cases * * * ’
“Since the failure of the court reporter to observe the terms of the statute is undisputed and the result is that a full transcript is not available to us, we do not see how we can, under Rule 52(a), F.R.Cr.P., 18 U.S.C.A., adjudicate that there was no showing that any errors which might have been reflected by the transcript were harmless. This conclusion seems to be in line with whatever jurisprudence is available on the subject.”

The same question as here presented was considered in the following cases: U. S. v. Taylor, 4 Cir., 303 F.2d 165 (1962); Kenton v. State of Oklahoma, Okl.Cr., 369 F.2d 474 (1962).

It is undisputed that appellant’s requests were timely and properly made, that the official court reporter refused to observe the mandatory provisions of the statute, and that the judge refused to require her to comply with it.

It is concluded that the appellant complied with the statute and has been deprived of a right expressly given him by the statute, and under the record here presented it calls for a reversal.

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

Opinion approved by the Court.


author: HUGHES, Justice.

text:
    T. W. BUCK, Jr., Appellant, v. H. M. REED, Appellee.
    No. 11003.
    Court of Civil Appeals of Texas. Austin.
    Nov. 28, 1962.
    Rehearing Denied Dec. 19, 1962.
    Second Motion for Rehearing Denied Jan. 9, 1963.

      Harry S. Pollard, Austin, for appellant.
    Gay & Meyers, Austin, for appellee.
   HUGHES, Justice.

This suit is on a promissory note dated August 31, 1953, in the principal sum of $9,300.00, executed by Glen Malcolm Shine and appellant T. W. Buck, Jr., payable to J. H. (Dude) Stelfox and secured by a chattel mortgage on one H. D. Allis Chal-mers tractor. The note and lien were assigned to appellee H. M. Reed. He sought judgment against Buck on the note for principal, interest and attorneys fees and foreclosure of the chattel mortgage lien. Mr. Shine was not sued.

In a nonjury trial appellee recovered judgment in accordance with his pleading.

Appellant plead that he “executed said note as a co-maker solely for the accommodation of Glen Malcolm Shine, without any past, present, or future consideration therefor to defendant, and J. H. (Dude) Stelfox knew and understood at the time of the execution of said note by Glen Malcolm Shine and this defendant that this defendant had not received and would not receive any consideration of any nature arising from such transaction but was purely án accommodation maker of said note.”

Appellee in his Original Petition filed February 7, 1955,- the only pleading filed by him, alleged, “That the whereabouts of said Glen Malcolm Shine are unknown and that after diligent effort plaintiff has been unable to locate him.”

The Court made the following conclusions of law:

“1. T. W. Buck, Jr., was an accommodation maker of the note described in Paragraph 1 of the Findings of Fact.'
“2. H. M. Reed was not a holder in due course of said note. • •
“3. H. M. Reed was entitled to- sue T. W. Buck, Jr., without joining Glen Malcolm Shine as a party to said suit.
“4. T. W. Buck, Jr., is justly indebted to H. M. Reed in the amount of $15,370.03 plus interest at the rate of ten per cent per annum until said debt is paid.”

The Court also made, among others, the followfing findings of fact:

“26. On February 7, 1955, the day this suit was filed, and for many months prior thereto the residence, of Glen Malcolm Shine was unknown to H. M. Reed, J. H. (Dude) Stelfox and T. W. Buck, Jr., and H. M. Reed used reasonable diligence prior to filing this suit to ascertain the residence of Glen Malcolm Shine but could not do so.
“27. On October 1, 1953, Glen Malcolm Shine was actually insolvent and such condition persisted to date this suit was filed.”

Appellee does not challenge the validity of conclusions of law 1 and 2, and we accept them as correct.

Appellant challenges finding of fact No. 26 on the ground that there is no evidence to support it, and that it is so against the weight and preponderance of the evidence as to be manifestly unjust.

Appellant does not specifically challenge the finding that Shine was insolvent.

Appellant Buck in executing the note to accommodate his co-signer, Shine, became liable to the payee of the note, Stelfox, as a surety on the note for his comaker, Shine. Ward v. Vaughan, 298 S.W.2d 862, Galveston Civil Appeals, and authorities therein cited.

Rule 31, T.R.C.P., provides that no surety shall be sued unless his principal is joined with him except in cases otherwise provided by law. This rule and relevant statutes are set out in Johnson v. J. R. Watkins Company, 337 S.W.2d 477, Austin Civil Appeals, and will not be copied herein.

The two exceptions involved here are that the residence of the principal Shine “is unknown and cannot be ascertained by the use of reasonable diligence” and that Shine is “actually insolvent.”

The burden was on appellee to plead and prove these exceptions. Johnson v. J. R. Watkins, supra. Insolvency was not pleaded, although appellee relies upon this' exception in his brief saying that appellant does not “complain of the finding of the Trial Court to the effect that Shine was actually insolvent from October 1, 1953, to the date this suit was filed.”

There is no evidence to support this finding for the reason that it conclusively appears that Shine was not insolvent within the meaning of this exception. The reason is that this is a foreclosure suit, and it is conceivable that the property sold will pay the debt, or at least part of it. This question was decided in Smith & Co. v. Ojerholm, 93 Tex. 35, 53 S.W. 341, the Court saying:

“ * * * Hence we think that it cannot be said that a principal is insolvent, within the meaning of that statute, when any part of the debt can be made by execution against him. Such is the construction given to similar statutes by other courts. * * * The term ‘insolvency’ has widely different meanings. When a trader is unable to meet his obligations in the regular course of business, he is technically said to be insolvent. Should we apply that meaning to our statute, the indorsee would, in some cases, be excused from suing the maker of the note although he might have ample property to satisfy an execution against him. It is in a case where the principal has property, but is not in a condition to meet his debts as they fall due, that the necessity is the more urgent to bring suit for the protection of the indorser. It cannot be said that a debtor is insolvent within the meaning of our law, as to his creditor, when he holds property against which the creditor may enforce a lien for the payment of the debt.”

With regard to the exception that the residence of Shine was unknown and could not be ascertained by the use of reasonable diligence, it is our opinion that the finding of diligence (No. 26) is against the weight and preponderance of the evidence.

Appellee testified that in August, 1954 he requested his attorney to attempt collection of the note in suit, and to try to locate Mr. Shine; that at that time he did not know where Mr. Shine was and did not know his whereabouts until this case was tried in December, 1961. He also testified that he requested Mr. Stelfox to help find Mr. Shine. What Mr. Stelfox did in this regard, he did not know.

Mr. Meyers, one of appellee’s attorneys made a statement into the record regarding this matter and was questioned about it as shown below:

“MR. MEYERS: What our office did was to write to Madisonville to undertake to locate Mr. Shine and addressed only to Madisonville and not to a specific address, since we did not have a specific address. We also got in touch with Mr. Stelfox, and when I have no idea, to find out whether he knew where Mr. Shine was, and of course we asked Mr-. Buck jn .his .dep-. osition if he knew, and if I recall he testified in 1960 that he had no idea, which was a year and a half ago, or about a year ago and at that time he had no idea where Mr. Shine was * *. •
“MR. POLLARD: May I ask him informally — -Mr. Meyers, did you make inquiry at the Courthouse here as to the address given on the check matter — the address given by Mr. Shine on the check matter ?
“MR. MEYERS: No, sir. At that time when I made the inquiry I did not know a complaint had been filed. I learned that in the deposition.
“MR. POLLARD : Immediately preceding the filing of this suit, did you or Mr. Gay ask Mr. Buck where Mr. Shine was?
“MR. MEYERS: I did not. I don’t know what Mr. Gay did. Mr. Gay did write Mr. Buck a letter with a copy to Mr. Shine, dated August 23, 1954, which I can hand you.
“MR. POLLARD: Now, the copy to Mr. Shine was the one that you referred to as having been written to Madisonville ?
“MR. MEYERS: Correct.
“MR. POLLARD: You did not write a direct letter to Shine himself, but you sent him a copy of the letter that had been written to Buck?
“MR. MEYERS: That is correct.
“MR. POLLARD: And that was in fact sent to General Delivery, Madison-ville, since it was merely addressed Madisonville, Texas?
“MR. MEYERS: Yes, and Madi-sonville is a small town.
“MR. POLLARD: You had no box number but only General Delivery, so from the post office, the general address, they just returned the envelope marked ‘Address Unknown’?
“MR. MEYERS: It says on the thing, ‘Moved, no order,’ I' think. I will hand you the envelope and we can introduce it into evidence.
“MR. POLLARD: I think that is a correct reading of the handwriting.
“MR. MEYERS: It says ‘Moved, no order,’ or ‘No address,’ I guess.
“MR. POLLARD: It looks like it says ‘No order.’ ”

The deposition of appellant was taken October 3, 1960, and in it he testified that he did not then know where Mr. Shine was.

Mr. Shine testified on the trial as follows:

“Q Mr. Shine, please state your full name to the Court and for the record.
“A Glen Malcolm Shine.
“Q Mr. Shine, where do you live?
“A In Houston, Texas
“Q How long have you lived there?
“A I was born and raised and reared there, and this time I have lived in Houston since November of 1953.
“Q Prior to that time had you lived in Houston ?
“A Yes, sir.
“Q Immediately before going back to Houston in 1953, where had you lived ?
“A In Madisonville.
“Q How long did you live over there in Madisonville?
“A Approximately five months.
“Q Do you have any relatives there in Madisonville?
“A Yes, sir.
“Q Who are they?
“A I have a cousin named Tommy Shine, and I have a grandfather named Sam Crabb, and all of my wife’s relatives live there. She was born and raised there, and I have relatives in the Courthouse— the sheriff is my wife’s uncle.
“Q At that time they were acquainted with you, and you were acquainted with them, of course?
“A Yes, sir.
“Q At the time you left there, did they know where you had gone?
“A Yes, sir.
“Q You went from Madisonville back to Houston?
“A Yes, sir.”

Mr. Shine and appellant served together in the Sea Bees in 1943. They had been friends since then. In 1953 while Mr. Shine and his family were visiting with appellant in Austin, Mr. Shine saw the tractor in suit at the Stelfox place of business. Appellant, who was acquainted with Mr. Stelfox, introduced Mr. Shine to him. Shortly thereafter the sale of the tractor to Mr. Shine was made, Mr. Stelfox acting for the owner, Mr. Reed. In connection with this sale Mr. Shine gave to Mr. Stel-fox a $200.00 check drawn on the First National Bank of Madisonville, Texas. This check was not paid on presentation and Mr. Stelfox in October, 1954, filed criminal charges in Austin against Mr. Shine as a consequence. A warrant of arrest promptly issued and was promptly served by the Sheriff at Madisonville on Mr. Shine. The next day, the check having been paid, Mr. Shine came to Austin to confer with the District Attorney, as to which he testified:

“Q At the time that you were talking to the District Attorney here did you or not tell him where you were living and what your address would be ?
“A Yes, sir, that I left forwarding addresses. I told him I contemplated moving to Houston, and I left forwarding addresses to my relatives in Houston. I have many relatives in Houston.”

Bearing in mind that the liability of a surety is “strictissimi juris” and that he is “favorite of the law”, we are firmly convinced that appellee did not exercise reasonable diligence in attempting to locate Mr. Shine before this suit was filed.

All that appellee actually did to locate Mr. Shine was send a letter addressed to him at Madisonville some five months before suit was filed. He did ask appellant six years after the suit was filed if he knew where Mr. Shine was. He did not thus inquire of him before the trial. He never did ask appellant whether he knew how to locate Mr. Shine although he knew they had been very close friends. Appellant made no inquiry of anyone in Madisonville as to his whereabouts although he knew through his agent, Mr. Stelfox, that Mr. Shine had given checks on a Madisonville Bank. He did not ask the Sheriff at Madisonville how to find Mr. Shine although the Sheriff had arrested Mr. Shine on the complaint of Mr. Stelfox, the agent of appellee. If the Sheriff could find Mr. Shine and arrest him, it would, with reason, seem that he should be able to locate him for service of civil process. Nor did appellee make inquiry of the District Attorney in Austin who had filed the charges for Mr. Stelfox.

The Supreme Court of South Dakota in Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5, 10, in discussing a similar matter stated: “Diligence which fails to include a recent inquiry as to his whereabouts of counsel, known to have been retained by defendant in connection with the subject matter, in our opinion, can neither be characterized as reasonable nor due.”

While the District Attorney was not counsel for Mr. Shine, appellee knew or should have known that he would have means of locating Mr. Shine under the circumstances shown by this record.

It is our opinion that this record does not contain sufficient evidence to support ’the finding, and to comply with the law requiring that it be shown, that the residence of Mr. Shine could not be ascertained by the use of reasonable diligence before the institution of this suit against appellant.

The judgment of the Trial Court is reversed and this cause is remanded.

On Motion for Rehearing.

Appellee challenges our conclusion that appellant, accommodation maker of the note sued on, is not suable without joinder of the principal, Shine, saying: “ * * * the decision in this case announces an erroneous rule of law that is contrary to an impressive line of decisions by the Supreme Court.”

The cases cited to sustain this contention are: Ritter v. Hamilton, 4 Tex. 325 (1849); Reynolds v. Crump, 6 Tex. 85 (1851); Lewis v. Riggs, 9 Tex. 164 (1852); Terrel v. Townsend, 6 Tex. 149 (1851); Hooks v. Bramlette, 1 White and Willson Civil Cases 500, Sec. 863 (1880); McDonald v. Holt, 1 White and Willson Civil Cases 567, Sec. 1013 (1881); and Head v. Cleburne Building and Loan Association, 25 S.W. 810, Dallas Civil Appeals (1893).

The basic cases are the first four cases above cited, all decided before 1858. The last three cases merely follow the prior cases.

These cases hold that in order for a surety to have the statutory privilege of having his principal joined with him in a suit on an obligation he must have “contracted as a surety.”

Appellant here did not contract (in writing at least) as a surety. He appears on the note as co-maker or co-principal.

In 1858 (Acts 1858 p. 112) the Legislature enacted a series of statutes regulating the relationship of principal and surety, one of which was new and is present Rule 32 Texas Rules of Civil Procedure, reading:

“May Have Question of Suretyship Tried
“When any suit is brought against two or more defendants upon aiiy contract, any one or more of the defendants being surety for the other, the surety may cause the question of surety-ship to be tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial or at a subsequent term. Such proceedings shall not delay the suit of the plaintiff.”

In 1919 the Legislature enacted a Negotiable Instruments Act, Title 98, Vernon’s Ann.Civil Statutes Art. 5935, Sec. 58, of such Act, reads in part as follows:

“Sec. 58. In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same, defenses as if it were non-negotiable.”

A payee, such as appellee, is not a holder in due course. J. I. Case Threshing Maching Co. v. Howth, 116 Tex. 434, 293 S.W. 800, refusing writ of error to the Dallas Court of Civil Appeals, its opinion being reported in 280 S.W. 238.

This case also stands for the rule that a surety not contracting as such may, as to a holder not in due course, have his surety-ship established and be accorded the rights of a surety. We quote from the Supreme Court opinion:

“The 1925 Revised Statutes retain the articles whereby any surety may have a trial of the question of his sure-tyship, no matter what may be the form of his contract, and whereby any surety may require the prompt enforcement of the contract on which he is surety as soon as it matures. Articles 6244 and 6246, R.S. The statutory rights thus accorded the surety would be utterly defeated if he were compelled to abide by extensions consummated regardless of his will.”

The right of suretyship there enforced was the surety’s right of discharge from liability because of an unauthorized extension of the obligation. This is not a statutory right. Here, the right of suretyship invoked is one conferred by Rule 31, formerly Art. 6251, Title 110, R.C.S.1925, which is a procedural right only.

We believe that the rights of sureties to be protected extend to all statutory and common law rights once the fact of suretyship is established under circumstances binding on the holder of the obligation.

Cases - supporting this ruling are: First National Bank v. Alexander, 4 S.W.2d 298, Amarillo Civil Appeals, writ dismissed; Head v. Texas State Bank, 16 S.W.2d 298, 299, Eastland Civil Appeals; Stetson v. First National Bank of Cleveland, 44 S.W.2d 792, Beaumont Civil Appeals, 1931, writ ref. and Brinker v. First National Bank, 37 S.W.2d, Tex.Com. of App.

From the first case cited, we quote:
“A party who has signed a note as surety for the other maker may avail himself of the protection which the law affords as surety, as against the creditor, where the latter has knowledge of the relation as surety, though that relation does not appear from the. face of the instrument.”

It was pleaded and proved in this case that appellant was a surety and that ap-pellee had notice of this fact from the inception of the transaction.

As to the four principal cases cited and relied upon by appellee, they do not appear to have been overruled; they have simply faded away in the light of subsequent legislation and judicial decisions.

The motion is overruled.

        . There is a general assignment that the judgment is unsupported by any competent evidence.

      . The original envelope is in the record. It bears the notation “Moved No order”.

      . 39 Tex.Jur. pp. 918-19.

      . See also Head v. Cleburne Building and Loan Association, Tex.Civ.App., 25 S.W. 810, Jameson v. Officer, 15 Tex.Civ.App. 212, 39 S.W. 100 and Southern Building and Loan Association v. Skinner, Tex.Civ.App., 42 S.W. 320, which are of similar import.

      . Title 110 R.C.S.1925, Arts. 6244-6252 inclusive.


author: RENFRO, Justice.

text:
    Harris P. HOOVER, Appellant, v. Dorotha M. REDWINE et al., Appellees.
    No. 16378.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 14, 1962.
    Rehearing Denied Jan. 11, 1963.

      James E. Forbis, Decatur, and Thorp A. Andrews, Fort Worth, for appellant.'
    Woodruff, Morgan & Nobles, and<Wm. A. Nobles, Decatur, for appellee. • - -
   RENFRO, Justice.

This suit was brought by Mrs. Dorotha M. Redwine, a widow, to establish her undivided interest in a 100 acre tract of land in Wise County, Texas. On December 4, 1944, Amy Boyd executed a warranty deed to the property in question “for and in consideration of the sum of Ten aqd No/100 ($10.00) Dollars Love and Affection to me paid, by J. H. Redwine as follows : $10.00 cash in hand paid, the receipt of which is hereby acknowledged * * At and prior to the date of the above deed, J. H. Redwine, grantee in the above mentioned deed, and Dorotha were husband and wife and owned as community property a 60 acre farm.

Although there were several parties plaintiff, we will, for convenience, refer to Dorotha M. Redwine as plaintiff.

It is the theory of the plaintiff that the actual consideration for the deed to the 100 acres was the conveyance by J.- H. Redwine and Dorotha Redwine of their community 60 acres to E. H. Huston for $1,600.00 cash, which cash was paid to Amy Boyd and George Redwine. Amy Boyd held legal title to the 100 acres and George Redwine owned a beneficial interest therein.

J. H. Redwine died intestate and left surviving him his wife and twelve children or heirs of deceased children.

Six of the surviving children conveyed an undivided one-twelfth interest each to defendant Harris P. Hoover.

The other children recognized their mother’s claim to an undivided one-half community interest in the land by joining her as plaintiffs in the law suit.

The court’s judgment was in conformity with plaintiff’s contentions, and the interests of plaintiff, the defendant Hoover, and other interested parties were fixed accordingly.

Trial was had before the court without a jury. The court filed the following findings of fact and conclusions of law:

“I find as a fact the following:

“1. That J. H. Redwine and Dorotha M. Redwine (sometimes known as Dortha Redwine) were husband and wife and that J. H. Redwine died intestate in Wise County, Texas in about the year 1951.

“2. That on December 4, 1944, Amy Boyd conveyed the 100 acre tract of land in controversy in this suit to J. H. Redwine for a recited consideration of ‘$10.00 love and affection’.

“3. That on December 8, 1944, J. H. Redwine and wife, Dorotha Redwine owned as community property a 60 acre tract of land situated in Wise County, Texas and did .pursuant to an agreement with Amy Boyd and J. H. Redwine to do so, conveyed said 60 acre tract of land to E. H. Huston for a recited consideration of $1600.00 cash, which was not paid to J. H. Redwine and wife Dorotha Redwine.

“4. That the true consideration for the sale of a 60 acre tract of land was the conveyance of a 100 acre tract of land herein in controversy to J. H. Redwine for the use and benefit of himself and plaintiff, Dorotha Redwine.

“5. That J. H. Redwine and Dorotha Redwine resided upon the 100 acre tract of land herein in controversy from about December 8, 1944, to the date of the death of said J. H. Redwine and that said Dorotha M. Redwine has continued to reside and make her home upon said 100 acre tract of land to the date hereof; claiming to own an undivided ½ interest therein.

“6. That Harris P. Hoover, the defendant herein, had actual notice of Dorotha M. Redwine’s possession of the 100 acre tract of land in controversy prior to, at the time of, and after the purchase of an interest therein.

“7. That Harris P. Hoover, defendant, did not inquire of Dorotha M. Redwine, plaintiff, as to the nature and extent of her claim of interest in and to the • 100 acre tract of land herein in controversy.

“8. That plaintiffs, Pearl McClung, Dolly Grissom, Lewis Redwine, Ethel Donoho, Irene Rogoski, H. J. Redwine, Riith Denny,' C. L. Redwine, Lewis Redwine. and Dolly Grissom, as guardians of the persons and estates of Ruth Redwine, a person of unsound mind, are surviving heirs at law of J. H. Redwine, deceased. ■■.■■■

“I conclude as a matter of law' that:'

“1. The 100 acre tract' of land in controversy in the suit was the community property of J. H. Redwine and wife, Dor-otha M. Redwine and not the separate property of J. H. Redwine.

“2. That plaintiff, Dorotha M. Redwine, owns and is entitled to an undivided ½ interest in and to thé 100 acre tract of land' herein in controversy as her' community share of the same.

“3. That plaintiffs, Pearl McClung, Dolly Grissom, Lewis Redwine, Ethel Donoho, Irene Rogoski, H. J. Redwine, Ruth Denny, C. L. Redwine, Lewis Redwine and Dolly Grissom, as guardians of the persons and estate of Ruth Redwine, a person of unsound mind, own and are entitled to an undivided ¡4 interest in and to the 100 acre tract of land herein in controversy.

“4. That defendant, Harris P. Hoover, is not a bona fide purchaser for value without notice of the claim of Dorotha M. Red-wine because he had actual notice of the residence upon, and possession of said 100 acre tract of land herein in controversy and failed to inquire into the nature and extent of her claim.

“5. That defendant, Harris P. Hoover, as the grantee of James Coy Redwine, Thomas Paul Redwine, Clara Bell Wester et vir, Effie May Lyons et vir, C- C. Red-wine and Alma King et vir, owns and is entitled to an undivided 54 interest in and to the 100 acre tract of land herein in controversy.”

Hoover appeals on fourteen points of error. In his first seven points he challenges findings Nos. 3 and 4 and all of the conclusions of law as being without any evidence to support them, and in the other seven points challenges the court’s findings Nos. 3 and 4 and all of the conclusions of law as being supported by insufficient evidence. None of the other findings of fact are challenged by Hoover.

The deed from plaintiff and her husband to E. H. Huston was executed on December 8, 1944. Plaintiff testified that her husband’s Uncle George told J. H. Redwine that he could sell the 60 acres owned by J. H. and Dorotha but could not sell the 100 acres owned by himself and wanted to “swap” the 100 acres for the 60 acres; the “swap” was made; “Jim and George made the swap”; the 60 acres were conveyed by plaintiff and her husband to E. H. Huston; neither plaintiff nor her husband ever received a cent of the $1,600.00 purchase price for the 60 acres which they conveyed to Huston; the deed to the 100 acre tract had been executed to plaintiff’s husband before they executed the deed to the 60 acre tract; she and her husband never received anything for the 60 acres in money or otherwise, except the 100 acre farm in question; she and her husband moved on the 100 acres in 1944, and she has continued to reside thereon ever since; they moved on the farm before the deeds were executed; the 100 acres have been her homestead since she and her husband moved on the farm. Plaintiff’s son Dan has lived with his mother all of his life.

Dan Redwine testified that before his father and mother conveyed the 60 acres to Huston, a deed had been made to his father conveying 100 acres of land to him; Huston did not pay the $1,600.00 to his (Dan’s) father and mother, although he was not present when the deed was delivered to Huston.

Mrs. Howard Lyons, one of the children who had conveyed her interest to Hoover, testified that she -knew about the alleged, “swap” of the 60 acres for the 100 acre tract, but she did not tell Hoover about the-claim of Dorotha. At one point she testified, referring to Dorotha, “Q She never did agree to give up her interest, and you never would agree to sign the division order unless she did? A That’s right.” She knew all along that her mother had been claiming a half interest in the farm.

James Coy Redwine, another of the children who had executed a deed to Huston, testified that he had heard about the above mentioned “swap” of farms but he did not tell Hoover, but did tell Hoover his mother was claiming a half interest in that farm as long as she lived; the real trouble between witness and his mother was that witness feared his mother would give her half, interest to Dan.

Mrs. Huston. testified she and her husband paid $1,600.00 in cash for the 60' acre farm; the money was put down on the desk of the real estate man who closed the deal and she “really don’t know who took the money.”

Mr. Hoover testified that he thought the 100 acre tract was the separate property of J. H. Redwine because of the love and affection recital in the Boyd deed, and the advice of a lawyer that the recital indicated it was a gift from Amy Boyd to J. H. Red-wine; before buying any interest from any of the children he visited the farm and knew that plaintiff and Dan were living on the farm, and knew that plaintiff at least had a homestead right therein; he never required an abstract of title to the property and took only a certified copy of the Amy Boyd deed to his attorney for examination; he made no investigation as to the status of the title and got no written title opinion from any attorney; he never inquired of plaintiff as to her interest in the farm or her right of possession.

It is contended by Hoover that some of the evidence was hearsay. We find, however, that during the trial the court said: “Let me make a clarification, Counsel, while we’re at it. When I review this matter, and I’m going to review it before I rule, I’m going to weed out some of this testimony I think is inadmissable or possibly inadmissable, so you can be guided accordingly.” We assume that the court did not take into consideration any inadmissible testimony. Waxler v. Klingemann, Tex.Civ.App., 272 S.W.2d 746; Garcia v. Bradley, Tex.Civ.App., 311 S.W.2d 751; Ransom v. Ransom, Tex.Civ.App., 252 S.W.2d 212, error refused; Republic Ins. Co. v. Inverness Estates, Tex.Civ.App., 252 S.W.2d 251, error refused.

Plaintiff was 85 years of age at the time of trial. Her memory for dates and details was faulty but she was firm in her testimony of the “swap” of the community 60 acres for the 100 acres. Her testimony of the “swap” was corroborated by her son, and, in part, by two of her children who were witnesses against her.

The court was the sole judge of the credibility of the witnesses and the weight to be given their testimony. We believe the evidence and the reasonable deductions to be drawn therefrom were sufficient to uphold the trial court’s findings of which complaint is made.

Hoover contends that even though the 100 acre tract was community property, he was an innocent purchaser for value without notice.

As seen in the summary of his evidence above, he was not an innocent purchaser without notice.

In Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 109 A.L.R. 739, it was said: “A purchaser of land must search the records, for they are the primary source of information as to title and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. Smith v. Crosby, 86 Tex. 15, 22, 23 S.W. 10, 40 Am.St.Rep. 818; Leonard v. Benfford Lumber Company, 110 Tex. 83, 216 S.W. 382. He must also make inquiry as to the rights or title of the possessor, for possession is equivalent to registration, in that it gives constructive notice of the possessor’s rights.”

And in Collum v. Sanger Bros., 98 Tex. 162, 82 S.W. 459, it was held: “We think it a safe and salutary rule to require of a prospective purchaser of land to ascertain whether any other be in occupancy of it; and, if there be such possession, to go to the possessor and ascertain the nature and extent of his claim. Possession is evidence of title, and, it seems to us, that common prudence and common honesty demand this course. If so, the possession should be notice to him; * *

In the instant case Hoover had actual knowledge, before he bought any interest in the land, that plaintiff was in possession; that she was the surviving wife of J. H. Redwine. He knew, from her son-in-law, that she at least claimed an undivided one-half interest for life. Although he drove around the farm he did not stop to inquire of plaintiff, or her son Dan, what interest other than homestead right she claimed in the property. Both could and would have informed him that plaintiff claimed an undivided one-half interest as community property.

In view of the whole record, we hold that the evidence was sufficient to support the conclusions reached by the trial court. Our view, in addition to the above authorities, is supported by Buckalew v. Butcher-Arthur, Inc., Tex.Civ.App, 214 S.W.2d 184; Ramirez v. Smith, 94 Tex. 184, 59 S.W. 258; and Park v. Sweeten, Tex.Civ.App., 270 S.W.2d 687, affirmed, 154 Tex. 266, 276 S.W.2d 794.

The judgment is affirmed.


author: BARROW, Justice.

text:
    Elizabeth GEHRKE et al., Appellants, v. STATE of Texas et al., Appellees.
    No. 13984.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 28, 1962.
    Rehearing Denied Jan. 2, 1963.
    Kelley, Looney, McLean & Littleton, Edinburg, for appellants.
    Carter Howard, Cecil Edwards, Edin-burg, G. B. Mallum, Mark Singletary, Fort Worth, Hill, King & McKeithan, Mission, for appellees.
   BARROW, Justice.

This is an appeal from the second order of dismissal of plaintiffs’ action. The first order of dismissal, which was based upon the sufficiency of the ratification filed by plaintiffs’ attorney of a gas unitization agreement involving the land in question, was reversed and remanded by this Court, Tex.Civ.App., 315 S.W.2d 684, no writ history. After the case was remanded special exceptions were filed by the defendants, and they were, for the most part, sustained by the trial court in a pre-trial hearing. Plaintiffs were given leave to amend, and filed their “Second Amended Motion.” The defendants urged that this amendment did not meet the exceptions. The trial court sustained this contention, and upon plaintiffs’ refusal to amend, entered this second order of dismissal.

There is considerable uncertainty concerning the nature of the proceeding filed by plaintiffs. On December 5, 1940, judgment for foreclosure of twenty-five acres of land was rendered in Cause No. E-189, in a suit for delinquent taxes for the years 1930-1939. On May 12, 1950, the parties who were some of the defendants in that tax suit filed this proceeding in the original cause and styled same their “Motion to Set Aside Judgment.” The taxing authorities were named as defendants in all pleadings, -but they did not appear and the record does not reveal any attempt to serve or join issue with any of them. The actual defendants are a group of persons who acquired title under the foreclosure sale, and are referred to as Rutledge and the Sinclair Oil Company, which had a mineral lease from Rutledge. In granting the first order of dismissal the trial court referred to the motion as one in the nature of a bill of review. In the prior appeal of this case, the proceeding was referred to by this Court as “a trespass to try title suit.” Plaintiffs have consistently refused either to clarify the nature of this proceeding or state whether they were making a direct or collateral attack upon the prior judgment. Plaintiffs take the position that this is immaterial in that the judgment is void. They assert that the default judgment is void for the reason that the citation was directed “To the Sheriff or any Constable of Hidal-go County,” and not to plaintiffs, as required by Art. 7345b, Vernon’s Tex.Civ.Stats. By way of counterpoint, defendants assert that the judgment recites that plaintiffs were duly and legally served and the suit was brought under Art. 7328.1 Vernon’s Tex. Civ.Stats., and the citation was in the prescribed form.

The trial court sustained defendants' exception directed to this uncertainty, and ordered plaintiffs to restyle and re-docket this cause as a new and independent cause of action. This exception was not cured by plaintiffs in their amended pleading, but they now state that this was a mere technicality and would not justify the dismissal of the suit. It is true that a misnomer does not change the nature of a pleading, and the jurisdiction of the court is invoked even though improperly styled and docketed. Rule 71, Texas Rules Civ. Proc.; Leach v. Brown, 156 Tex. 66, 292 S.W.2d 329. A different issue is presented here in that the trial court, after sustaining defendants’ exception, correctly gave plaintiffs the opportunity to amend,' Upon plaintiffs’ refusal to amend, the trial' court was empowered to enter an order of dismissal, Ship Ahoy, Inc. v. Whalen, Tex.Civ.App., 347 S.W.2d 662, no writ hist.; Shaw v. Universal Life & Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738, error dism. judgment correct; 4 A.L.R.2d 352.

By applying the rule of Leach v. Brown, supra, and considering the pleading to its fullest effect, we find that the trial court correctly sustained defendants’ exception to the failure of plaintiffs to allege a meritorious defense to the tax suit. Upon plaintiffs’ refusal to amend to meet this exception, the proceeding was properly dismissed. ., !

The question presented by this proposition has been resolved by the recent, opinion of the Supreme Court in McEwen v. Harrison, Tex., 345 S.W.2d 706. In that case Chief Justice Calvert, in considering the application of Rule 329-b, T.R.C.P. reviewed the judicial history of the proceedings, necessary to set aside a default judgment. Rule 329-b provides in' parí 1'' ’“After the-expiration of thirty (30) days from the date the judgment is rendered or motion for new-trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.” The respondent in that case had contended, that the default judgment against him was void for want of legal service of citation and that a void judgment might be set aside in any recognized legal proceeding in the nature of a direct attack. The Supreme Court overruled this contention and construed the correct rule to be as follows: “ * * * when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or .of valid service, of process.”. The Supreme Court then restated the rule that in a bill of review the plaintiff must allege and prove that he was not negligent in suffering the default judgment to be rendered against him and that he has a meritorious defense to the suit.

Therefore, even if we consider the proceeding filed by plaintiffs as in the nature of a bill of review, the trial court correctly dismissed this suit upon plaintiffs’ refusal to amend and. allege a meritorious defense.

The judgment of dismissal is affirmed.


author: CLAYTON, Justice.

text:
    H. L. LEDBETTER, Individually and as Next Friend of Sandra Ledbetter, a Minor, Appellants, v. ASHLAND OIL & REFINING COMPANY, Appellee.
    No. 5551.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1962.
    Rehearing Denied Jan. 9, 1963.

      Perkins, Bezoni, Kirwan & McWhorter, Midland, for appellants.
    Jack Little and James Little, Big Spring, for appellee.
   CLAYTON, Justice.

From a “take nothing” judgment against the plaintiffs, the latter appeal. Parties will be designated as they appeared below.

Suit was brought in the District Court of Midland County, Texas by H. L. Ledbetter, individually and as next friend for his daughter, Sandra Ledbetter, against the Ashland Oil and Refining Company, a corporation, for injuries suffered by Sandra resulting in the loss of her left leg. The defendant was the operator of certain oil and gas wells and properties located in Midland County, Texas known as the B. T. Hale Lease. One of the producing oil wells was located on a farm or ranch belonging to B. T. Hale the surface rights of which were subsequently leased to Alton L. Ledbetter, who with his wife and two children lived in a residence located on said land. Alton L. Ledbetter was the brother of plaintiff H. L. Ledbetter and the uncle of the minor plaintiff Sandra Ledbetter. On February 14, 1960 H. L. Ledbetter and his wife and two children, Sandra and her brother, were visiting at the Alton Ledbetter home. About forty yards from the residence was a barn, and the pumping unit for the oil well was located about 120 yards from the barn. At the time of this visit Sandra was a little over eleven and a half years old. She and some of the other children had been riding horses on the ranch and that afternoon or early evening they had gone out to the barn, ostensibly to saddle and ride the horses again, but instead went over to the oil well pump on the suggestion by one of them that they ride that “horse”. The pump was operating and one of the other children climbed up to the horizontal or “walking” beam and was riding it like a “see-saw” or “rocking horse”. Sandra stepped on the bolt heads which attach the crank to the Pitman arm and was riding this moving equipment by holding onto the Pit-man arm, when in some manner her left leg was caught in and crushed by the moving parts.

In so far as pertinent to this appeal, the, case was submitted to the jury on eight special issues.. In answer to Special Issue No. 1, the jury found that the defendant should have reasonably anticipated that small children would likely frequent the place where the oil well pump was situated and play about it.

In answer to Special Issue No. 2, the jury found that the defendant, through its agents, servants and employees, knew or should have known that the pump, in the condition in which Sandra Ledbetter found it on February 14, 1960, involved an unreasonable risk of injury to children.

By Special Issue No. 5 the jury determined that the failure of the defendant to erect a fence or other protective’structure around the oil well pump prior to the accident was negligence on the part of the defendant, and under Special Issue No. 6 that such negligence was a proximate cause of the injuries sustained by Sandra Ledbetter

Special Issue No. 4 resulted in a finding that the utility to the defendant in maintaining the pump unfenced was slight as compared to the probability of injury to children.

Special Issue No. 3, as originally framed, required the jury to find whether Sandra, at the time and place of her injury, taking into consideration her age, capacity and experience, did, or did not “realize the danger involved” in her playing on the oilfield pump. Upon request from the jury for a definition of “danger involved” the court submitted an amended charge which substituted for the wording “realize the danger involved”, the wording “realize that there was danger of personal injury involved” in her playing on the oilfield pump. The jury thereafter made further inquiry as follows: “Does 'personal injury’ as used in the attachment mean any sort of personal injurv such as bruise, sprain or abraision or does it mean the loss of a leg — as was sustained by Sandra?” The jury was thereupon further instructed: “It means any personal injury to be sustained on account of the machinery”; after which the jury answered the issue that Sandra did realize that there was danger of personal injury involved.

The jury finding on Special Issue No. 9 was that Sandra Ledbetter was negligent in standing on the protruding bolt-heads of the Pitman arm of the pump while the Pit-man arm was in motion, but in answer to Special Issue No. 10 replied that such neg-ligenae was not a proximate cause of the injuries and damages which she and her father sustained.

On other special issues the jury found that the occurrence was not the result of an unavoidable accident, and awarded damages.

As previously indicated, on motions by both the plaintiffs and the defendant for judgment on the verdict the trial court rendered judgment for the defendant.

Plaintiffs (appellants), in their sole point of error, here contend that the trial court erred in overruling plaintiffs’ motion for judgment and entering judgment for defendant (appellee) because under the facts and jury findings in the case the defendant was under legal duty to use ordinary care with respect to the minor plaintiff, but was found by the jury to have been guilty of negligence which proximately caused her injuries and there was an absence of any findings of legal effect with respect to any defensive issues.

We cannot agree with that portion of plaintiffs’ argument that asserts that Sandra was rightfully upon the premises where she was injured and that, arising from her rightful presence there, the defendant owed a duty for her care and protection.

Assuming, without holding, that Sandra was an invitee of her uncle on the premises over which he had leased the surface estate, this invitation of her uncle did not include the right of Sandra to go upon the machinery and equipment being rightfully operated by the defendant, as owner of the dominant estate, on that portion of the premises on which it was conducting oil pumping operations. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954).

If Sandra was not a trespasser on this machinery and equipment, it must be through an implied invitation to her from the defendant to go upon such machinery and equipment, and from this implied invitation the duty of reasonable care toward her safety on the part of the defendant arose.

While there is a wealth of authority dealing with this subject, we feel that the wording of the Texas Supreme Court holding in the 1953 case of Eaton v. R. B. George Investments, 152 Tex. 522, 260 S.W.2d 587, clearly sets out the law of this State applicable to the facts in the instant case. The cited case arose from the drowning of a child in a cattle dipping vat of the defendant. The Supreme Court reversed the decision of the trial court (affirmed by the Court of Civil Appeals) which granted the defendant’s motion for judgment on the verdict. The court based its decision on the prior Supreme Court ruling in Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231. It is necessary to quote portions of the opinion in the Eaton case:

“The judgment of the trial court granting defendant’s motion therefor was rendered on the theory that since the structure was not unusually attractive to children the child had no implied invitation to enter the premises and was no more than a trespasser or bare licensee to whom the defendant owed no duty other than not to wilfully or intentionally injure her.
Sjt ⅜ ⅜ ⅜{ * ⅜
“Whatever may have been the rule in this state prior to the Banker decision, it is now clear that a landowner cannot escape liability for bodily harm to trespassing children caused by a structure or other artificial condition maintained on his land by simply establishing that such structure or other artificial condition was not unusually attractive to children. In the Banker case this court approved and adopted the rule laid down in Volume 2, p. 920, Sec. 339 of the Restatement of the Law of Torts wherein it is said :
“ ‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
‘“(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
“ ‘(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
‘“(c) the children because of their youth do not discover the condition or realize the risk involved in intermed-dling in it or in coming within the area made dangerous by it, and
“ ‘(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.’
“See also Prosser on Torts, Sec. 77, pp. 620-625.”

In the instant case condition (a) above was fulfilled by a jury finding of “foreseeability” on the part of the defendant under Special Issue No. 1, of negligence under Special Issue No. 5 and of proximate cause under Special Issue No. 6. These findings plus the “unreasonable risk” finding under Special Issue No. 2 fulfill the requirements of condition (b) above. In fulfillment of the condition- of subparagraph (d) above, the jury found that the utility to the defendant of maintaining the oil well pump in question unfenced was slight as compared to the probability of injury to children.

It is the provision of subpara-graph (c) above, however, that we feel should be determinative of the case at hand. Did Sandra Ledbetter, because of her youth, not discover that the oil well pump was in operation or realize the risk involved in climbing upon its moving parts while it was so operating? Sandra was a normal child, making average grades in the sixth grade of elementary school, who would have been twelve years Of age on the 28th day of June, 1960 following her accident on February 14, 1960. She had visited the Alton Ledbetter place on occasions previous to her accident, knew of the pump, and had played on it on at least one prior occasion when the pump was not operating. She stated in her deposition that she knew better than to put her leg between the moving parts while the pump was operating, and that if her foot got caught between the parts there was a possibility of getting hurt, in direct contradiction to her later testimony from the witness stand that she did not know that if her foot got caught there would be a possibility of being hurt. However, in her testimony she again said she would not have put her leg in there on purpose. It was open and obvious to Sandra, at her age, with her mental capacity, that the pump was in fact in operation — she “rode” upon its moving parts; and while of course it is not likely that she could have anticipated the very nature of the injury that might result from her behavior, she was of the age and mental capacity to have known, and did know, that in its operating condition the pump presented a very definite hazard to anyone who voluntarily climbed upon its moving parts. The jury found, in answer to Special Issue No. 3, that Sandra “did realize that there was danger of personal injury involved” in her playing on the pump, and such a finding is amply justified by the evidence. Thus we are drawn to the conclusion that Sandra Ledbetter does not come within the category of children described in subparagraph (c) above, who “because of their youth do not discover the condition or realize the risk involved” in going upon or about dangerous structures or other artificial conditions maintained upon land by its possessor. It follows that the rule of liability of the defendant approved and adopted in the Banker case, supra, and followed in the Eaton case, supra, does not apply in the instant case.

It should, be borne in mind that in applying the rule of liability in the Banker case the court was dealing with circumstances involving the death of a five years, ten months old child, and in the Eaton case, the , death of a three years and eight months old -child. So also, in the recent Supreme Court case of Harvey v. Seale, 362 S.W.2d 310, reported in Volume 6, page 15, October 6, 1962 issue of the Texas Supreme Court Journal, cited by appellants in a supplemental brief, liability was applied under entirely different circumstances involving injury to a 9½-year-old, second-grade school child. We feel that these facts, among others, - serve to distinguish these cases from the one at hand.

Plaintiffs-appellants further urge that even the “infant trespasser” or “attractive nuisance” doctrine requires the jury to find no more to entitle plaintiffs to judgment than it found for plaintiffs in this case. If the decisions in the Banker and Eaton cases allow a recovery which is cumulative of (or alternative to) a recovery under the “attractive nuisance” doctrine, we do not believe the latter is applicable under the facts in the case under consideration. In the first place, we do not feel that Sandra Ledbetter was a child of such tender years and immaturity as to have been so unusually attracted by the operating pump that she was oblivious to its dangers. Secondly, these dangers were not concealed, hidden or latent, but were, we feel, obvious and patent to Sandra.

In Stimpson v. Bartex Pipe Line Co., 120 Tex. 232, 36 S.W.2d 473 (1931), the court points out:

“An examination of many adjudicated cases decided by the courts of this and other states wherein it has been held that the attractive nuisance doctrine was applicable .reveals the fact that, in connection with the maintenance of the condition, appliance, or instrumentality claimed to be especially attractive and inviting to children,, there was involved a concealed, hidden, or latent danger, and not merely one of an obvious or patent character. (Citing numerous cases).
“ Tt has been considered,’ says the author of Corpus Juris, vol. 45, § 162, p. 765, ‘that the attractive nuisance doctrine applies only where the danger, is latent and not when it is patent, for the reason that the inefficiency of children who are so little advanced as to be unable to recognize patent dangers-should not be allowed to shift the care of them from their parents to strangers or to impose upon the owners of property a duty and liability where otherwise none would exist.’
“The same principle is announced in Ruling Case Law, vol. 20, p. 86, § 76, wherein the court, in discussing this doctrine, said: ‘If it appears that the injury complained of was produced by a peril of an obvious or patent character a recovery should be denied.’ ”

Under any aspect of this case, in our opinion, Sandra Ledbetter was no more than a trespasser upon the pumping equipment of the defendant, and if this be correct, the defendant owed to her no more duty of protection than not to intentionally, willfully or wantonly injure her. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410, supra. There is no intimation anywhere in the record that defendant acted in such manner. The facts and circumstances of this case also eliminate any duty on the part of the defendant to instruct Sandra Ledbetter, or warn her, of the dangers involved in climbing upon the defendant’s operating pump, since she had the knowledge which instruction would have given her, and knew how to avoid this particular danger — by refraining from putting herself in a position where the pump might hurt her. 38 Am.Jur. 751, § 91; Stamford Oil Mill Co. v. Barnes, 103 Tex. 409, 128 S.W. 375, 31 L.R.A.,N.S., 1218; Franklin v. City of Galveston, Tex.Civ.App., 256 S.W.2d 997 (1953).

If there is no duty on the part of the defendant toward plaintiff Sandra Led-better (except, as stated above, not to intentionally, willfully or wantonly injure her, which defendant did not do) it seems to be immaterial to the disposition of this case whether Sandra was contributorily negligent or not. However, should it be said that our reasoning in this respect is not necessarily determinative of this matter, it might be well to comment on the sub-point strongly urged by the plaintiffs that the finding by the jury of negligence on the part of Sandra (Special Issue No. 9) did not bar recovery, since the jury further found that this negligence was not a proximate cause of the injury and damages sustained (Special Issue No. 10). We have reviewed those cases, such as Little Rock Furniture Mfg. Co. v. Dunn, Tex.Civ.App., 222 S.W.2d 985, wherein it is held that proximate causation is an essential part of a defense of contributory negligence. The careful trial court here submitted the issues of “ordinary care” as applied to Sandra Ledbetter, and “proximate cause”, under definitions that are in compliance with those set ou in the Supreme Court holding in Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201. However, further following the language of the Rudes opinion, it might well be said that under the facts and circumstances of the case before us, reasonable minds could not differ but that Sandra Ledbetter, under what has been shown of her age, intelligence, knowledge and capacity, should be held to the adult standard of the ordinarily prudent person, and that her conduct established contributory negligence as a matter of law.

We have been favored with excellent briefs in behalf of both sides of this case, and our decision herein is not an easy one. However, we feel, from what has been said in all of the foregoing, that plaintiffs’ (appellants’) point of error, and all sub-points thereunder, must be overruled and the judgment of the trial court affirmed.