author: HAWKINS, J.

text:
    STINE v. STATE.
    No. 14172.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    J. E. Edmondson, of Bellville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for forgery; punishment- being two years in the penitentiary.

Our state’s attorney calls our attention to the fact that the bond executed by appellant after adjournment of court in order to secure his release pending his appeal is approved by the sheriff only. Article 818, O. C. P., requires such bond to be approved by both the sheriff and the district judge who tried the case. In the absence of such approval as required by the statute,' the appeal will be dismissed. See Bledsoe v. State (Tex. Cr. App.) 23 S.W.(2d) 726, and many other cases collated in Vernon’s Texas C. C. P. vol. 3, p. 191, under said article 818.

Appellant may have fifteen days from this date to file and bring to this court by supplemental transcript the proper bond, in the event he desires further to prosecute his appeal.

The appeal is dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    MITCHELL v. STATE.
    No. 14110.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    See, also, 27 S.W.(2d) 800.
    J. E. Mangum and Adams & Adams, all of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment being two years in the penitentiary.

The house claimed to have been burglarized was alleged to have been controlled by W. T. Eussell, and the property therein to have belonged to him.

The point' is made here that the record shows no proof as to want of consent of Pus-sell, either as to entry of the house or to the taking of property therefrom. We have examined the statement of facts carefully in ■regard to this matter. Although Pussell testified upon the trial, it does not appear that ¾½ was ever ashed regarding his want of 'consent, either to the entering of the house or the taking of the property.

In Wisdom’s Case, 42 Tex. Or. R. 579, 61 S. W. 926, it was said: “Where the alleged owner is a witness, and fails to give direct and positive testimony to his want of consent * ⅜ * such want of consent will not he inferred from other circumstances in evidence.”

It is recognized in the opinion that under certain conditions want of consent may he proved by circumstantial evidence, but that this is not permissible where the witness who could give direct testimony on the point is present and testifies. The Wisdom Case was followed in Caddell v. State, 49 Tex. Cr. R. 133, 90 S. W. 1013, 1014, 122 Am. St. Rep. 806, and in Hunt v. State, 89 Tex. Cr. R. 404, 231 S. W. 775. See, also, Russell v. State, 86 Tex. Cr. R. 580, 218 S. W. 1(61, and Moray v. State, 61 Tex. Cr. R. 549, 135 S. W. 569. It may be thought that in Brown v. State, 58 Tex. Cr. R. 336, 125 S. W. 915, a different rule is announced. There the alleged owner was not present at the trial and ,of course did not testify. The state necessarily had to resort to proof of circumstances to show the want of consent, and no objection was interposed to that character of testimony. In .the present case' nothing appears in the statement of facts which would indicate .that the state was attempting to show want .of consent by proof of circumstances. There was no necessity for it; the owner was present and giving testimony in court. The state apparently overlooked making the necessary proof on a vital averment in the indictment. In Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227, the. owner of the burglarized premises gave direct testimony to want of consent to the entry of the premises, but only circumstantially to lack of consent to taking the property therefrom. Under the facts of 'that' case the rule announced in Brown’s Case was thought applicable. When the facts are understood, 'neither the Brown nor Meredith Cases are thought to be in conflict with the Wisdom, Caddell, and Hunt Cases. The judgment must necessarily be reversed for lack of evidence upon the point mentioned.

It was claimed that the house in question had been broken into about the last of March. At that time only a small table was missed. Some six months later, with appellant’s permission, his house was searched. A small table, two old hats, and some postcards which Bad been received by members of the Eussell family were fofind. 'Appellant at that time accounted for his possession' of the property by explaining that he' had bought it from Mr. R. N. Dixon. We aré asked to hold as a matter of law that proof of possession of the property six months after the burglary Was too remote for the jury to base thereon an inference that appellant was the taker. Our decisions on the subject are not harmonious, as may be discovered from an examination of the reported cases. The character of the property will under the circumstances of each particular cáse necessarily have some bearing on the question. We are not inclined to agree with appellant in his position on this point.

We suggest that, in view of appellant’s claim that he bought the property from Mr. Dixon, it would be much more satisfactory to have Mr. Dixon’s version of the matter or some explanation of why it was not forthcoming.

Upon the point first discussed, the judgment must be reversed, and the cause remanded, and it is so ordered.


author: CALHOUN. J.

text:
    BYRD v. STATE.
    No. 14141.
    Court of Criminal Appeals of Texas.
    April 29, 1931.

      R. H. Cocke, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN. J.

The conviction was for receiving stolen property and the punishment assessed at two years in the penitentiary.

The indictment in this ease contained one count, which charged that the appellant, Clyde Byrd, “did then and there unlawfully and fraudulently receive from M. L. Mooney, one head of cattle then and there belonging to E. W. Blain, and which said cattle had theretofore been acquired by the said M. L. Mooney, in such manner as that the acquisition comes within the meaning of the term theft, and the said Clyde Byrd did then and there fraudulently receive said cattle then and there well knowing the same to have been so acquired.”

The state’s case was made by the admitted accomplice, M. L. Mooney, who testified in effect that in the fall of 1927 he was living in Oklahoma, about three and a half or four miles east of the Texas state line, and that the appellant at that time was living at Shamrock, in Wheeler county, Tex. He testified that he was acquainted with the appellant at that time, and saw him at different times during the fall of 1927. He testified that in the fall of 1927 he had a conversation with the appellant with reference to his handling cattle that he would steal; that said conversation occurred in Collingsworth county near Aberdeen; that the first conversation occurred in October or November, 1927; that he told the appellant he would go down. in Oklahoma and see one George Bliss about stealing some cattle; that he had to be with George to get the cattle out of there. The substance of the understanding between the said Mooney and appellant was that said Mooney would go into Oklahoma and steal some cattle and bring them into Texas and deliver them to the appellant, and that the appellant was to sell the cattle and receive $5 a head therefor; that, in pursuance of this agreement, he, Mooney, and one Knight went into the state of Oklahoma and stole 28 head of cattle, the greater, portion of which belonged to one Blain; that the cattle were driven across the state line, placed in a pasture, and appellant notified thereof ; that appellant sold four head of the cattle, and the price agreed upóú as- between himself and the accomplice for the four head was $50 apiece, and that in consequence of their agreement the appellant paid him $180; that appellant sold these cattle, and subsequently sold about 23 other head to a man by the name of George for $800, for which the said Mooney received $685 from appellant, Which was his part coming from said cattle under their agreement. He further testified that, just before he went into Oklahoma and got the cattle, the appellant asked him when he would go, and he told him that he would go to-morrow; that he further told the appellant that he was going to get the cattle, and asked him how many to get, and the appellant said it did not make any difference, and asked the witness to let him know when he got back. He further testified that the appellant never bought any of the cattle from him; that he took the cattle and got the money out of them and sent the witness his part of it; that he did not sell the cattle to Clyde Byrd; and that said Byrd did pot have any money with which to buy cattle.

The issue raised is whether the evidence proves a case of theft and not one of receiving stolen property. In the case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, the facts showed' that Smith and others entered into a conspiracy to steal cattle which were in Erath county, the plan agreed upon being that the others should take possession of the cattle in Erath county and bring them to Barker county and deliver them to Smith, who would remove them to Tarrant county, sell them, and divide the proceeds. This court held Smith to be a principal in the theft because the conspiracy was not completed until the cattle were sold, and the selling of them seemed to be Smith’s part of the undertaking. The Smith Case on page 133 of 21 Tex. App., 17 S. W. 558 is a companion case to the one first cited.

In the 'Case of Burow', Jr., v. State, 85 Tex. Cr. R. 140, 210 S. W. 805, Judge Morrow, in passing on a motion for rehearing, stated the rule laid down in Smith v. State, supra, to he to the effect that, where persons enter into a conspiracy to commit the crime of theft of property, contemplating that one or more of the conspirators shall take .the property from the possession of the owner and deliver it to another conspirator not present at the time of the taking to be by him converted, and the proceeds distributed among all, and that, when this conspiracy is carried into effect by the taking of the property from the possession of the owner by one or more of the conspirators, delivering it pursuant to agreement to another to be converted by bam pursuant to 'the previous agreement, to the end that the proceeds may be distributed, all are .principals within the meaning of the. statute. ...

Among cases illustrating the rule prevailing in this state upon this subject is that of Mason v. State, 31 Tex. Cr. R. 311, 20 S. W. 564, 566, from which the following quotation is taken; “Again, it is well settled that where it is proved that the persons charged by their act pursue the same object or purpose, one performing one part and another another part of the same, so' as to complete it with a view to the attainment of the same object, the jury will he justified in the conclusion that they were engaged in a conspiracy to effect that object; and, under o.ux statute, such acting together would make all principal offenders, whether bodily present or not at the place of the offense. And they are all principal offenders when acting and together, as long as any portion of the object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished.”—citing Smith v. State, 21 Tex. App. 108, 17 S. W. 552; Willey v. State, 22 Tex. App. 408, 3 S.W. 570; Miller v. State, 23 Tex. App. 38, 3 S. W. 573; Collins v. State, 24 Tex. App. 141, 5 S. W. 848; McFadden v. State, 28 Tex. App. 241, 14 S. W. 128.

This construction of the statute set out in the cases above cited as to wha>t constitutes a principal has since said eases been accepted and applied by this court as an established interpretation of the statute. For a fuller discussion as to who constitutes a principal within the meaning of the statute, see cases above cited, also opinion on motion lor rehearing in the case of Kolb v. State, 88 Tex. Cr. R. 503, 228 S. W. 210.

Upon this issue the sole question is, Do the facts in this case show that the appellant was a principal in the theft -of said cattle by reason of the conspiracy to steal the same? The facts in this case show that there was an agreement and understanding between the appellant and the witness Mooney whereby Mooney was to go into Oklahoma, steal some cattle, bring them into Texas, and deliver them to appellant. Appellant was to sell the cattle and receive so much per head therefor. This was done, and we ¡believe that the appellant was a principal under the rule laid down in the Smith Case, supra, because the transaction, as shown by the evidence, was not complete as to any of the conspirators until the cattle were sold and the proceeds distributed.

In the ease of Brown v. State, 15 Tex. App. 581, it was held that theft and receiving stolen property were separate offenses. See, also, Gaither v. State, 21 Tex. App. 527, 1 S. W. 456; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Fernandez v. State, 25 Tex. App. 538, 8 S. W. 667; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58. “A theft must be perfected before that of receiving stolen property can be perpetrated, and the receiver of the stolen property must be another person than the thief.” Brown v. State, supra. The guilty receiver of stolen goods cannot himself be the thief nor can the thief be guilty of the crime of receiving stolen goods which he himself has stolen. Moore v. State, 83 Tex. Cr. R. 302, 203 S. W. 51; Crawford v. State, 31 Tex. Cr. R, 51, 19 S. W. 766.

We are of the opinion that the uncon-troverted evidence shows, if true, that the appellant was a principal in the theft of the cattle, and, being a principal to the theft, he cannot be guilty of the crime of knowingly receiving said stolen cattle, and. can only be convicted of the offense of which the evidence shows him guilty, and for this reason the judgment of the trial court cannot be sustained.

' Appellant also raises the issue that the testimony of the accomplice witness, Mooney, showed the taking of the cattle charged in the indictment to be in the state of Oklahoma, and that there is no proof that the taking of said cattle, as taken in the state of Oklahoma, was a felony under the laws of said state or constituted the crime of theft therein. Upon examination of the statement of facts, we note that it does not contain the laws of the state of Oklahoma, and there is no proof that the taking of said cattle in the state of Oklahoma constituted the crime of theft therein. Under article -1559, P. O., it is made an offense, among other things, to bring into this state any property acquired by theft, and that the parties so bringing said stolen property within the state shall be punished as if the offense had been committed in this State. Article 1560, P. C., of the statute, provides that “to render a person guilty under the preceding article it must appear that by the law of the foreign country, State or territory from which the property was taken and brought to this State the act committed would also have been * * *' theft.” See Fernandez v. State, 25 Tex. App. 538, 8 S. W. 667; Clark v. State, 27 Tex. App. 405, 11 S. W. 374; West v. State, 27 Tex. App. 472, 11 S. W. 482.

The other alleged errors complained of we deem unnecessary to discuss under our holding.

The judgment is reversed, and cause remanded.

PER OURIAM.

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


author: CHRISTIAN, J.

text:
    FUNSTON v. STATE.
    No. 14306.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Reynolds & Heare, of Shamrock, for appellant.
    Lloyd W.' Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for two and one-half years.

Officers saw appellant driving his car away from the home of Bert Clark. After appellant had driven the car approximately 200 feet, the officers stopped him and asked permission to search. Appellant having consented to the search, got out of the car, opened the right-hand door, took out three pint bottles of whisky, and broke them. A search of the car disclosed some empty whis-ky flasks and some ordinary paper sacks. One of the officers ran his hand over appellant’s body to see if he had a gun. He noticed a knot on each side of appellant, but made no further investigation after appellant had stated that he was ruptured and had on a truss. Appellant was arrested and placed in the car of one of the officers for the purpose of taking him to jail. The other officer drove appellant’s car. After they had driven approximately '10 miles and within about 15 minutes after tbe arrest, appellant stated to the officer with whom he was driving that he had eaten some liver and onions, and was sick, and requested that he be permitted to leave the car for the purpose of answering a call of nature. Immediately upon stepping out of the car appellant unbuttoned his overalls, reached down to the place where he said he was wearing a truss, took out a pint bottle of whisky in each hand, and proceeded to break both bottles. A further search of the car disclosed another bottle with whisky in it. Appellant testified, in substance, as follows: He lived in Reydon, Okl. 1-Ie had come into Texas for the purpose of selling cream separators. On the evening before his arrest he had loaned his automobile to Bud Adair. Adair kept the car about two and one-half hours before he i*etumed it to ap>-pellant. About 10 o’clock the next morning appellant started to Allison. Adair did not accompany him, having gone on with, some one else. Going through Allison, appellant drove five or six miles to Mr. Tips’ place for the purpose of selling a cream separator. He then drove back to the Bert Clark place, which was a mile from Allison. He stopped his motor at Clark’s' place and later had to crank his ear, Clark was not at home. As he took "the crank out 'of the automobile it hung on an old sweater. He found five bottles wrapped up in the sweater, which he took to be whisky. The sweater looked like one he had seen Bud Adair wearing. ’ After cranking the car appellant drove about 200 feet before being stopped by the officers. At this point we quote appellant’s testimony as follows: “I did not know at that time there was a pint bottle partially filled with whis-ky behind the seat in that car; nor did I at any time know there was a box of rubbers up behind the seat of the car. The officer's arrested me there at that time. I broke 3 pint bottles of whisky there on the running board. The reason I did that was that I had heard people say if they caught you with the whis-ky, and you broke it you would break the evidence. I thought it was- whisky in those bottles at that time, — I was pretty sure it was, and that was my reason for breaking them. That was not my whisky, and I did not have it there for the purpose of sale. I did transport it there about 150 feet. I did not know at the time I left Reydon that morning there was whisky in the car, and the first time I knew it was when I pulled the crank from under the sweater and hung it on the sweater, and I heard the bottles rattle.”

On cross-examination by the state, appellant testified that he broke the whisky he was carrying under his overalls for the purpose of destroying the evidence. He gave no reason for having hidden the two pint bottles in his clothing.

Bills 'of exception 1 to 5, inclusive, relate to appellant’s objection to the testimony of the officers touching his act in breaking two pints of whisky while he was being carried to jail, and, further, are concerned with the action of the court in permitting the officers to testify that appellant advised them, in substance, before breaking the whisky that it was necessary that he leave the car for the purpose of answering a call of nature. The specific objection was that the provisions of article 727, O. G. P., relating to confessions while under arrest had not been complied with. It is recited in the bills that the parties had driven approximately six miles from the scene of the arrest, and that appellant’s act in breaking the liquor and his statement in connection therewith occurred about ten minutes after his arrest. The opinion is expressed that the objections were properly overruled. Statements made while under arrest, if properly part of the res gestse, are not affected by the rule rejecting confessions while in custody. We deem the statement made by appellant within the rule of res gestse. Wright v. State, 111 Tex. Cr. R. 240, 13 S.W.(2d) 111, 112.

As to appellant’s act in breaking the whisky, the rule laid down in Underhill’s Criminal Evidence (3d Ed.) § 163, and quoted with approval in Wright v. State, supra, is applicable. We quote: “Thus it may be shown that he attempted to escape, or fled from justice or that he destroyed evidence or endeavored to fabricate evidence. Such facts may, with correctness, be assumed to form a part of the res gestse, though not contemporaneous with the principal transaction. If this is so, there can be no impropriety in receiving the declarations accompanying them.” In Kelly v. State, 102 Tex. Cr. R. 395, 278 S. W. 449, a similar situation arose. The accused had been arrested and was being taken to jail. While en route to jail in an automobile, he seized a pair of pliers and broke one of the fruit jars containing the whisky. The trial court permitted the state to prove the' act of the accused over his objection that he was under arrest. This court held that the objection was not tenable, and said that it would be a remarkable situation if an accused should be permitted to destroy the evidence against him, and then deny the state the right to prove such destruction by merely showing that he was under arrest at the time. The conclusion was reached that the fact that the accused was under arrest afforded no reason for refusing the testimony that he destroyed the. evidence.

It is recited in bill of exception No. 6 that appellant testified that Bud Adair, after returning appellant’s automobile, had arranged to go with appellant to Allison on the-following morning. After making this statement, appellant offered to testify that Bad Adair told him (appellant) about 8 o’clock in the morning that he would not wait for him, but would go in a ear with another man, and meet him (appellant) in Allison. Over the state’s objection appellant was not permitted to prove what Adair said to him. It is stated in the bill of exception that appellant offered the testimony for the purpose of showing all the facts and circumstances relative to his relationship with Bud Adair, and as showing the opportunity which Adair had to place whisky in the ear, with the probable intention of having the same transported to Allison, and there securing same. It is further stated in the bill that it was appellant’s defensive theory that some one else had placed the whisky in his car and that he did not know that same was there until he discovered it at Clark’s place. We are unable to perceive the relevancy of the proffered statement. Appellant admitted that he knowingly transported the whisky. If Adair had placed the liquor in the car, appellant would not have been excused. Appellant takes the position that the enhanced penalty was probably assessed because the jury believed the whisky belonged to him and that his story concerning Adair’s connection with appellant’s automobile was untrue. It is observed that appellant was permitted to testified fully to his relationship with Adair and his loan of his automobile to him on the evening preceding the search. On page 18 of the statement of facts we find the following statement made by appellant on his direct examination: “It was about 10 o’clock the next morning when I started to Allison as near as I can tell. However, Adair did not go to Allison with me. He went with someone else. I do not know who; he left about 8 o’clock that morning. I did not see him leave, but I thought I heard the car leaving, which was right after I had the conversation with him.”. Under the circumstances, we do not think the statement that Adair told appellant he was going to leave ahead of him with another man, and would meet him in Allison, could have been of benefit to appellant. Such statement was calculated to impress the jury with the view that appellant and Adair were acting together in transporting the whis-ky.

Bill of exception No. 7 presents the following occurrence: After it had been shown by state’s witnesses that appellant was arrested within a short distance of the homo of Bert Olark and that whisky had been found in his car, appellant offered to testify that he was at Mr. Clark’s place for the purpose of attempting to collect some money Mr. Clark owed him. Upon objection by the state the statement was rejected. It is recited in the bill of exception that it was contended by the state that appellant was on a bootlegging expedition into Texas, transporting and possess-ing whisky for the purpose of sale; and that it was appellant’s theory that he did not discover the whisky in his car until he had reached Mr. Clark’s place, where he had gone on a lawful mission. We are unable to determine from the bill of exception how the testimony could have been of benefit to appellant. As far as the recitals in the bill are concerned, he did not offer to testify as to the nature of the transaction out of which the debt grew. The statement that Mr. Clark owed him some money which he was attempting to collect, standing alone, when viewed in' the light of the testimony of the state to the effect that appellant had a quantity of liquor in his car, was calculated to lead the jury to believe that Clark owed appellant for whisky. Although appellant had testified that he was engaged in the business of selling cream separators, he did not offer to state whether Mr. Clark owed him money for cream separators. Appellant testified! as shown in the statement of facts on page 18, that he had gone to Mr. Tips’ place before going to Clark’s residence, to see about selling Tips a cream separator. He followed this with the statement that he went back by Clark’s place but found that he was not at home. If the testimony relative to appellant’s purpose in visiting Tips on the morning in question did not convince the jury that appellant was on a lawful mission, it would appear that the statement that Clark owed him money, without any explanation as to how the debt arose, would have added little weight to the testimony already in the record. While expressing the view that the learned trial judge should have permitted appellant to make the statement in question, we are unable to reach the conclusion that its rejection contributed to the assessment of a penalty in excess of the minimum.

Bill of exception No. 8 recites that appellant was not permitted to testify that he had in his car at the time of,his arrest some small cream separator parts and rubbers for cream separators. .If the court rejected this testimony, he evidently relented and thereafter permitted the statement to be made to the jury. On page 23 of the statement of facts we find the following testimony on the part of appellant: “The reason I had the paper sacks in the back end of the ear was, that people along the road frequently stopped me and wanted cream separator rings and parts, and I would drop them along. I had those parts with me in the ear at that time.”

Bill of exception No. 11 recites that appellant placed in issue his general reputation for being a peaceable and law-abiding citizen; and that John Porter, sheriff, testified that he knew appellant’s reputation in the community in which he resided for being a peaceable and law-abiding citizen, and that it was bad. It is set out in the bill as a ground of objection that it had not been shown that the witness knew the general reputation of appellant in the respect mentioned. There is nothing in the bill in verification of the objection. In his brief appellant confesses that the bill of exception is defective and requests us to look to the statement of facts for the purpose of determining whether a sufficient predicate was laid. This court will not ordinarily look to the statement of facts to aid a bill of exception. Branch’s Annotated Texas Penal Code, § 213; Harris v. State, 07 Tex. Cr. R. 251,148 S. W. 1074. A mere statement of a ground of objection is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Annotated Texas Penal Code, § 209; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569.

We have discussed all questions briefed by appellant,.and have carefully examined other matters presented by the record, but not briefed. The opinion is expressed that the record fails to manifest reversible error.

The judgment is affirmed.

PER CURIAM.

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


author: MORROW, P. J.

text:
    Ex parte BELFLOWER.
    No. 14411.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Reynolds & I-Ieare, of Shamrock, for appellant.
    Raymond Allred, Dist. Atty., of Pampa, and Lloyd W. Davidson, State’s Atty, of Austin, for the State.
   MORROW, P. J.

The appellant was charged by complaint with murder. On the hearing his bail was fixed in the sum of $10,000. On the showing that his efforts to make bond have been without avail and that he is without property to secure bondsmen, he now seeks a reduction of his bail, suggesting that he might be able to make a bond in the sum of $5,000.

A brief summary of the testimony is as follows: The witness Bryan resided at Shamrock, Tex. While engaged in a conversation upon the street with one Otto Markham, he observed the appellant and his wife, who drove their car to the curb and stopped. After stopping the car, the appellant called to Markham and said he wanted to talk with him on a matter of business. A few minutes, later, the appellant came and shook hands with Bryan and said: “You have been knowing me a long time, haven’t you? * * * Have you ever known of me mistreating anybody? * * * Mr. S. E. Walker has insulted my wife, and if he don’t apologize, something is liable to happen.”

About that time Walker, the deceased, came out of a business house and was accosted by the appellant. The appellant did not appear to be angry or excited at the time. A conversation took place which Bryan did not hear, but he heard Walker say, “Your wife was not insulted,” or “I did not insult her.” Appellant turned to Bryan and said, “Now, you heard me ask Mr. Walker to apologize, didn’t you?” The appellant went to his car, got his rifle, came back, and said, “Walker, you are not going to get by with this.” • He then put the gun to his shoulder and fired one shot which killed the deceased.

Markham testified that, while conversing with the appellant on some business matters, the latter indicated that he wished to see Walker. He approached Walker and had a conversation with him; the witness in the meantime conversing . with Mrs. Belflower. Walker was asked by the appellant to apologize to his wife. Walker replied that he would not apologize to Mrs. Belflower or anybody else as he had nothing to apologize for. As Walker started away, the appellant went to his automobile, got his rifle, and said, “Walker, Walker, Walker,” and fired. Prior to his conversation with Walker the appellant appeared calm, but after the conversation he appeared agitated and nervous. Before the homicide and while in town, the appellant and his wife brought some eggs to a store for sale. The keeper of the store made a price of the eggs, and after the homicide they were delivered by Mrs. Belflower, who received payment for them. The eggs were in the car at the time of the tragedy.

We are not prepared to say that the amount of bail fixed by the trial court is excessive. No direct testimony is perceived to the effect that Walker had insulted the wife of the appellant. The testimony goes no further than to show that Bryan was told by the appellant that "Walker had insnlted his wife, and, unless he apologized, something would happen. Walker was accused by the appellant of insulting his wife, but Walker denied it. The appellant’s wife was . available to him as a witness on the hearing. She failed to testify to any insults by Walker.- In view of the record before it, this court does not feel justified in overturning the conclusion reached by the judge who heard the witnesses and fixed the amount of bail.

The judgment is affirmed.


author: CALHOUN, J. MORROW, P. J.

text:
    MILLSAPS et al. v. STATE.
    No. 13949.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied May 20, 1931.
    David E. O’Fiel, of Beaumont, and R. O. Roland, of Eastland, for appellants.
    Hollis M. Kinard, Co. Atty., of Orange, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellants, Jack Millsaps and James Mill-saps, were jointly indicted, charged with the offense of the murder of Howard Booth, and a penalty assessed of twenty-five years in the penitentiary.

Deceased was injured on the 28th day of November, 1929, and. died on the 24th day of December, 1929. He was first seen after the injury was inflicted by A. M. Kirk on the 28th day of November at about 5 o’clock in the morning, before daylight. He awakened Kirk by pushing against the front door of his house, the Kirk house being on the main highway in Orange county between the cities of Beaumont and Orange. He was taken to a hospital in Beaumont. At the hospital the deceased was visited by J. D. McClain and J. E. Watson, who were detectives on the police force of the city of Beaumont, and one George L. Gibson, deputy sheriff of Orange county. Eater on in the day and before noon, the appellants were apprehended and taken to the hospital and into the ward in which deceased was a patient. 'In the presence of the appellants and said officers, the deceased identified appellants as being the persons who had inflicted two stab wounds in his chest and various lacerations on his head and face. Later on during the same day the deceased made a written dying declaration to the county attorney of Orange county accusing appellants of inflicting the injuries mentioned. The deceased remained in the hospital in Beaumont until the 7th day of December, when he was transferred to the Hermann - Hospital in Houston, where he died on the 24th day of December.

Dr. J. G. Elynn testified that he examined the deceased on December 8,1929, and at that time found that deceased had two stab wounds on the left chest, which were at that time complicated with the lung^ and that the deceased had multiple abrasions and contusions about the scalp and face; that at the time he was in a state of extreme shock from loss of blood and infection, the stab wound of the left lung causing a complete collapse, -leaving only one lung for breathing, and with each breath this punctured wound in the chest would drain blood and pus, and would sputter air. That the deceased developed a state of delirium from the infection, with occasional intervals of semiconsciousness, each day losing vitality until his death occurred. The said physician testified that upon his experience as a physician and surgeon the condition and injuries of deceased without doubt produced his death.

Deceased’s dying declaration was as follows:

“I, Howard Booth, on this 28th day of November, 1929, realizing that I am dying and that there is no hope of recovery, do hereby-make the following written declaration:
“Last night I got into a car with two men at Shane’s Garage and they told me they Were going to take me to the hotel; but instead they drove across the Neches River bridge and across the railroad track. After we got across the railroad track one of the men struck me and this one and I then had a scuffle. As we were fighting the other one hit me over the head and they stabbed me with a knife. They took $75.00 in money out of my pocket. Officer Johnnie McClain brought these two men up here to the hospital this morning. They were the same two men who' attacked me and took my money. They were in a Chevrolet car. They said they were brothers. As they started off one kicked me in the side. They had turned in the Chevrolet and had gotten a Hudson.”

The appellants pleaded not guilty and offered as their principal defense an alibi.

Appellants by bill of exception No. 1 complain of the action of the trial court in refusing to allow them to file an amended motion for new trial. The appellants were convicted on June 13, 1930, and thereafter appellants filed their motion for new trial. When said motion for new trial was filed the court notified counsel for appellant that all motions would be disposed of on June 26th at 9 o’clock a. m. At said time, counsel for appellant had not yet filed their amended motion sought to be considered. We have examined appellant’s said motion for new trial, embrace ing some thirteen pages, and are unable to determine that any benefit would have accrued to the appellants by filing the amended motion or that any injury resulted from its denial. The privilege -of filing an amended motion for new -trial is not absolute, but the discretion rests with the trial judge to refuse it, and in the absence of an abuse of this discretion, the action will not be reviewed. Carusales v. State, 47 Tex. Cr. R. 1, 82 S. W. 1038; Kinney v. State, 65 Tex. Cr. R. 251, 144 S. W. 257; Tores v. State, 74 Tex. Cr. R. 37, 166 S. W. 523.

Appellants’ bills of exception Nos. 2, 3, and 4 complain of the following remarks made by state’s counsel in his closing argument to the jury:

“The defendants (meaning Jack and James Millsaps) were out there on this road driving a screw driver into the body of Howard Booth.”

“This undershirt (meaning a torn piece of underwear which the testimony showed was in an automobile found in the possession of Jack Millsaps or in the rear of his residence, and which was recovered by the officers on a search of said ear at the time the said Jack Millsaps was arrested, but it had not been identified as the clothing of the deceased, or his property) was torn off of the deceased.”
“No, they (meaning the defendants, Jack and James Millsaps) were not at Mrs. Crowley’s, because they were out there murdering Howard Booth.”

To all of said remarks, the judge in his qualification states that the remarks of the county attorney in his closing argument to the jury were in response to and were provoked by statements of the appellants’ counsel preceding said county attorney. Also in his qualification to bill No. 2, he states that the piece of undershirt referred to was introduced in evidence. Under the trial judge’s qualification showing that said remarks were in response to and provoked by the statements of appellants’ counsel preceding them, no reversible error is presented. Kemper v. State, 63 Tex. Cr. R. 1, 138 S. W. 1025; Scott v. State, 101 Tex. Cr. R. 598, 276 S. W. 283; Hardin v. State, 104 Tex. Cr. R. 178, 283 S. W. 517.

By bill of exception No. 5 appellants except to the refusal of the court to give a requested charge that appellant James Millsaps’ application for suspended sentence should not be taken as any evidence of guilt on his part. There is nothing in this bill or in the record showing that there was any contention by the state that the filing of such application was evidence of guilt, and in the .absence of such an issue, it wa-s not necessary for the court to give such a charge. Hughes v. State, 78 Tex. Cr. R. 154, 180 S. W. 259; Hendley v. State, 94 Tex. Cr. R. 40, 250 S. W. 174; Campbell v. State, 84 Tex. Cr. R. 89, 208 S. W. 348.

By bill of exception No. 6, after the trial court had entertained a motion to strike from the record appellants’ amended motion for new trial, appellants complain of the refusal of the court to hear' the oral testimony of one George A.-Giddens, claiming that said evidence would establish the fact that said Jack and James Millsaps were on Milam street in the city of Beaumont continuously on the morning of Thanksgiving Day, 1929. and during the time it is alleged that the offense for which they were being tried was perpetrated at some other place, and that said evidence would have corroborated the testimony of the appellants and of the witness Lita Crowley. The purported newly discovered evidence mentioned in said bill of exception is not contained in appellants’ amended motion for new trial, and there is no affidavit attached to said motion to show the truth of this allegation, nor is there any showing why said affidavit could not be obtained, nor is there any showing why the evidence could not have been procured before, and the trial judge in his' qualification to said bill states that the said George A. Giddens lived within a short distance of the Crowley place. The bill presents no reversible error.

By bill of exception Nb. 7 appellants complain of certain remarks of the trial court in the presence of the jury, while the witness H. M. Kinard was testifying on cross-examination by the appellant regarding the dying declaration by the deceased Howard Booth. The court qualified said bill as to what occurred as follows: “The witness, Hollis M. Kinard had testified to having taken the declaration referred to herein. Defendants’ counsel had cross-examined him at length concerning the details of taking such declaration. Said counsel for defendants had asked the identical questions referred to several times and said questions were repetitions of former questions. The witness had testified several times that he had written down in the statement the exact words of the deceased as nearly as he could and when defendants’ counsel insisted upon asking the witness over and over concerning that part of the statement the court' did remark that the witness had already answered that question.”

As qualified, the bill shows no error.

Appellants’ bill of exception No. 8 contains appellants’ exceptions to the court’s charge and is some seven pages long. The court in his main charge to the jury defined murder, malice aforethought, adequate cause, deadly weapon, principals, and aggravated assault. The court also charged on alibi and the affirmative defenses set out by appellant. On the whole the charge was a fair and impartial one, and if any error was committed, it is not shown; the appellant not having filed any brief or authorities.

Bill of exception No. 9 is virtually an objection to the introduction of deceased’s dying declaration and sets out the testimony in question and answer form of the witness Hollis M. Kinard, county attorney of Orange county, Tex., who testified regarding the taking of said dying declaration and under whose testimony said declaration was admitted. The bill contains five or six pages of question and answer testimony and is qualified by the court as follows: “The witness, Hollis M. Kinard testified that he took the dying declaration of the deceased, Howard Booth, that at the time of making such declaration the said.Howard Booth was conscious of approaching death and believed there was no hope of recovering; that such dying declaration was voluntarily made and was not made through persuasion of any person; that such dying declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement ; and that the said Howard Booth was of sane mind at the time of making the declaration. The said witness was cross-examined at length by counsel for the defendants and no part of his testimony showed any departure from the above.”

The bill as thus qualified shows that the dying declaration of the said Howard Booth was admissible and no error was shown in the admission thereof.

Finding no error, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

.In their motion for rehearing the appellants reiterate the various complaints of the procedure in the trial court that were brought forward in the original hearing of this appeal.

In the opinion heretofore rendered by this court each of the hills of exception is treated in detail. In the light of the motion for rehearing, the record has been re-examined. The opinion is entertained that the conclusion reached upon the original hearing is correct. A further discussion would be but a repetition of that which has been written by this court.

The motion is overruled.


text:
    RILES v. STATE.
    No. 14279.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Thad E. King and J. H. Phipps, both of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, death.

Touching the circumstances, prosecu-trix, Mrs. Dorothy Griffice, testified, in substance, as follows: Leaving her home about 9:15'p. m., she walked down Twenty-Third street in the city of Galveston for the purpose of meeting 'her husband, who worked at ■Levy’s. For some reason her husband failed to appear, and, it being too late to go elsewhere, she walked down Post Office to Twenty-First "street until she came to the alley between Avenue L and Avenue M. She noticed a negro standing near the alley. He startled her by saying: “Is Frank there?” She had an uncle named Frank Bautsch, and, believing the negro referred to her uncle, she had just started to answer him when he grabbed her by the throat and dragged her down the alley. Cursing her for a bastard, the negro threw her on the ground on her back and got on top of her, saying to her, in substance, that he was going to have sexual intercourse with her. Tearing her clothes, he tried to make her open her underwear. She fought him to her utmost, but he choked her until she was exhausted, saying that, if she screamed, he would kill her. She weighed 95 pounds. The negro was large and powerful. Notwithstanding her. efforts to prevent-the outrage, the negro succeeded in having sexual intercourse with her. Having completed the act, he .jumped up and ran away. At this point we quote the testimony of prosecutrix on direct-examination as follows: “All of a sudden he jumped up and I dropped my purse. My watch had a clasp that if you touched it a little it would ⅝11 off, and I dropped that, and he jumped up off of me and ran, and the minute he let me go I screamed, and there was some people living in a house overlooking the alley, and they had some lights up there and I saw him. I got a good look at the fellow. I saw his face just as plain as day. I could even tell the way he was dressed. The light was overlooking the alley. The minute he got up I screamed and I believe a lady came to the window and asked who was down there, and I said to catch that negro. He was running real close to the garages. Anyway they said to come upstairs, and I said ‘No, I can’t’ or something. Anyway they came down and I don’t remember what I said to them, but I told them to look for 'my watch. I was worried about that, and I wanted my purse too, and the man said ‘Where do you live,’ and I told him. I don’t remember what I said, but he brought me home and left me at the gate at 2008 Avenue M, just about a block away from the place.”

Touching her identification of appellant, prosecutrix testified on cross-examination as follows: “I saw him standing there, and when he was right over me I could not help see his whole face. I saw some people, passing the alley just before he jumped off, as I said before, but they never did come back, and I didn’t know Who they were. It was pretty far down the alley. There were some lights shining from a window above the alley. I mean there is a garage right where he dragged me on the opposite side, and over that-there is a house, and there were some lights up there, and I got a good view of his face, and I can tell you the way he was dressed too. The house with the lights in it was on the north side of the alley, on the south side.. I absolutely know what he looked like and he makes about the seventh person I have viewed, and I absolutely know it is him. I still had presence of mind enough to remember his appearance. I am not sure whether I lost consciousness or not during the attack. Everything was as if in a dream, but I absolutely know what he looked like, and I know what he did to me. I don’t mean everything was like a dream from the time I first started across the alley. I mean when he dragged me by the throat, and when he dragged me down the alley. His grab was so tight on my throat. Everything was clear all right. I saw his face absolutely, and I know what he did to me. I heard the questions he asked me. There is no doubt in my mind that that is him. I remember those things clearly. I am positive he made those statements to me. I 'certainly noticed his features — anybody with that face, and look at those big lips — everything. During the time of this occurrence and the time, when I first saw the defendant I described him to Sergeant Biaggne. * *■ * I am positive that the man who attacked me is the defendant. Why I can shut my eyes and see his face.”

Mr. Vanskike and his wife, who lived in the house near the alley, testified to having heard a woman scream. Upon making an investigation, they found prosecutrix in the alley. She told them that she had -been assaulted and robbed. They discovered- red marks on her throat, and her face looked like she had been strangled or choked. She was gasping for breath. Her clothing was ragged, and looked like it had been torn. She told the witnesses that the negro had sexual intercourse with her. There was a mark in the sand which looked like it had been made by the toe of a shoe. These witnesses said there was a light from their window into the alley, but that it was not very bright. According to their statement, they were unable to see the scene of the struggle without the use of a flashlight. The mother of prosecutrix testified that her daughter immediately reported the matter to her upon arriving home. She , said prosecutrix screamed and fell upon the bed, saying, “Oh mother, mother, am I hurt?” The clothing of prosecutrix was torn, and on her back were small bits of grass. There were imprints on her neck, and her eyes were bulging out. She told her mother that a negrohad assaulted her and had sexual intercourse with her. An officer testified that he went to the scene of the outrage and found imprints of large feet and places in the sand appearing to have been made by the toes of 'shoes. Taking prosecu-trix to jail at a later date, the officer showed her six or seven negro men for the purpose of seeing if she could identify her assailant. There were two men standing and one sitting on a bench. Appellant was standing some dis'-tance-back of these men. At the command of the officer he came a little closer. Upon seeing him, prosecutrix -backed out of the room, and, pointing her finger at appellant,, said: “That is the man.” All of this testimony went in without objection.

Prosecutrix testified that the attack occurred on March 29th, but stated that it was on Friday night. After the state had rested its case, appellant placed several witnesses on the stand in an effort to establish an alibi. Mr. Uhr, one of the witnesses, testified that he-was timekeeper and material man for W. A.» Kelso in Galveston; that he had on his pay roll the name of W. Wilson for the night of March 29th; that he did not know whether it was appellant or not who worked on the occasion in question under the name of Wilson ; that W. Wilson did not work for him on the night of March 2Sth, having begun his labors on the night of the 29th of March. H. J. Devlin testified that appellant was at work for Mr. Kelso on the night of March 29th but that he was not employed nor at their place of business on Friday night, March 28th. Appellant did not testify in his own behalf, and offered no further testimony. After it had been shown that appellant was working for Mr. Kelso on the night of March 29th, the state placed Geo. A. Seale, editor of the Galveston Tribune, on the witness stand. Mr. Seale testified that he published a story with reference to the assault on prosecutrix; that the Galveston Tribune was an afternoon daily paper; that it was published at about 2:45 p. m. on March 29th; that it carried a story of the assault which showed that it occurred on Friday night, March 28th. He said further: “If the event had occurred on the night of March 29th it could not have appeared in the issue of the Galveston Tribune on the afternoon of the 29th.” The paper was offered in evidence merely for the purpose of showing the date of March 29, 1930, the story contained therein not going to the jury. Although it had been clearly established -by the state’s testimony that the offense occurred on March 28th, and notwithstanding the fact that appellant’s witnesses had only given testimony showing that he was at work at Kelso’s on March 29th, appellant made no effort to offer testimony tending to show that he was at another and different place on the night prosecutrix was assaulted.

We are unable to reach the conclusion that the evidence iá insufficient to support the conviction.

In his motion for new trial, appellant averred that he did not have a fair and impartial jury to try him, in that one Quoyser, who served as a juror, was prejudiced against him, and had so expressed himself prior to qualifying as a juror. The specific averment touching the alleged prejudiced juror was that, prior to being selected as a juror, he had said “I know what he will get. if I am on that jury.” It was further averred in the motion that, upon his voir dire examination the juror stated that he had formed no opinion that would influence a verdict if selected as a juror. Upon a hearing, Cecil Davis testified that he heard the juror say to another man while he was standing on the courthouse steps that he had been summoned for jury service in a case in which a negro was charged with raping a white woman, and that he knew what he would do if left to him; that when he got through with the negro they would not be able to find a piece of him anywhere. The witness testified that he did not advise appellant or his counsel of the matter until after the jury had rendered a verdict, but did state to a party who was sitting by him in the courtroom that the juror should not have answered on his voir dire examination that he had not formed any opinion, as he had heard him say prior to his examination that he had formed an opinion. This witness admitted that he was voluntarily engaged in raising .money in an endeavor to aid appellant in an effort to secure a new trial. He had gone to the office of appellant’s attorney and told him to prepare an instrument to be used in securing money, as he had lots of friends among his church people who would subscribe to aid appellant in securing a new trial. He testified further that he had secured offerings from various people and had promise of further contributions. He said that he attended appellant’s trial.

The juror to whom the statement was attributed testified that he talked to a Mr. Zapp and Mr. Steding while he was standing on the courthouse steps waiting his turn to be called as a juror; that he told the parties to whom he was talking that he had been summoned for jury service, and that, if he served on the jury, he would give appellant a fair trial; that he would not take the life of the accused without giving him a fair trial; that he said further to them that he had formed no opinion as to the guilt or innocence of appellant ; that he did not state what he thought about the case, and no question was asked him about the matter'; that he told said parties that the fact that appellant was a negro would not be taken into consideration by him at all. The juror also testified that at the request of appellant’s attorney he had gone to his office after the trial, and that appellant’s attorney had asked him if he made the remark before the trial, “I know what I would do if I get on the jury.” He said he told appellant’s counsel that he did not think he had used those words, but .that,-if he did, he meant that if he got on the jury he would give appellant a fair trial. We quote the testimony of the juror at this point as follows: “I told you that I did not remember the exact words 1 said. I said ‘All I can tell you is the frame of mind I was in, and from that frame of mind if I did use those particular words or terms .of speech they meant just one thing. I knew what I would do if I got on the jury — - that I would give that man a fair trial.’ * ¾ * That remark about there would not be any pieces left of him, or anything to that effect is entirely new. I never heard that before. I never heard the remark T know what I would do with him if left to me. When I got through with him you could not find a piece of him.’ Mr. Phipps did not say anything about that at all to me. I did not make any such remark, as far as I can remember to Mr. Steding or any one else on the courthouse steps, nothing in that trend at all. The answers I made on the voir dire examination reflected my frame of mind at that time beyond the shadow of a doubt.”

In an inquiry of this kind the law vests in the trial jud£e the discretion to determine the issues upon which the evidence is conflicting. The trial court may disregard testimony of witnesses who are interested or impeached. Davis V. State, 101 Tex. Or. R. 352, 275 S. W. 1029. That the trial court has broad discretion in determining the truth or falsity of an averment in the motion for new trial is well settled. The witness Cecil Davis was admittedly interested in the outcome of appellant’s case. He had voluntarily engaged himself in securing contributions to aid him in an effort to obtain a new trial. It was the province of the trial court to disregard the testimony of the witness because of his interest in the case. While it is true that the juror, in concluding his testimony, testified that he did not make the statement attributed to him “as far as he remembered,” we find that in other parts of his . testimony he declared emphatically the statement was entirely new to him. Moreover, he testified that in conversing about the matter he had declared that he had no opinion about the ease, and that he would give appellant a fair and Impartial trial. We are unable to reach the conclusion that the learned trial judge abused the discretion Tested in him in determining that the juror was unbiased.

In Branch’s Annotated Texas Penal Code, § 565, p. 288, we find the following statement: “When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant’s guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on the issue will be sustained by the appellate court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge.”

See Meadors v. State, 101 Tex. Cr. R. 336, 275 S. W. 829, and McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172.

In his motion for new trial appellant attempts to set up purported remarks alleged to have been used in argument by the prosecuting attorney. No objections to these remarks are brought forward in bills of exception. As presented, we are at a loss to understand just what happened. There being no bill of exception complaining of any argument, there is nothing before us in regard to such matter. This court has committed itself to the proposition that ordinarily objection to the argument must be made at the time it occurred in order that the attorney making may, if he sees fit, withdraw or explain it. Sears v. State, 106 Tex. Cr. R. 219, 291 S. W. 547; Ross v. State (Tex. Cr. App.) 7 S.W.(2d) 1078; Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485.

A careful examination of appellant’s contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

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


author: LANE, J.

text:
    KENYON et al. v. JOHNSON.
    No. 9461.
    Court of Civil Appeals of Texas. Galveston.
    March 20, 1931.
    Rehearing Denied April 9, 1931.
    Austin Y. Bryan, Jr., of Houston, for appellants.
    Frankljn & Blankenbecker, of Houston, for appellee.
   LANE, J.

On the 16th day of January, 1928, Howard Kenyon arid J. E. Browne each owned an undivided one-half interest in and to a certain lease of certain lands executed to them by one John Warren, by virtue of which lessees were granted the exclusive right to exploit. and develop the land for rock and gypsum, subject to certain terms and conditions set out in the lease.

On the date above mentioned, Howard Kenyon and J. E. Browne, acting under the rights conferred by the lease, entered into a written contract with Harry K. Johnson wherein it is substantially recited that:

Whereas, Kenyon and Browne had theretofore entered upon said land and made extensive developments of the same in the way of tests, shafts, and drilling operations, and were at such time actively and continuously developing the land hy building of shafts thereon and making tests of minerals contained in and thereunder; and whereas, such operations had necessitated the expenditure of the sum of $17,500 in cash by Kenyon and Browne; and whereas to effectuate the production and sale of the minerals referred to it was at such time the desire of Kenyon and Browne to organize a Texas corporation for the purpose of buying and taking over their interests, rights, privileges, etc., held by them hy virtue of the Warren lease; and

Whereas, such parties concluding that it was necessary to make further expenditures of moneys in the continued development of said minerals and in making sale thereof; and

Whereas, H. K. Johnson is desirous of associating himself with Kenyon and Browne and becoming the purcháser of an undivided one-third interest in and to the rights held hy Kenyon and Browne by reason of said lease; and

Whereas, J. E. Browne and Howard Kenyon, called first parties, and Harry K. Johnson, called second party, have agreed to associate themselves together and have agreed that Johnson should become the purchaser of an undivided one-third interest in the rights of Kenyon and Browne in the lease, they have entered into the following written stipulations and agreements:

First. That J. E. Browne and Howard Kenyon, for and in consideration of the sum of $10 paid and other valuable considerations hereinafter stated, was selling and conveying to Harry K. Johnson an undivided one-third interest in the lease made by John Warren to first parties on the 7th day of May, 1927, covering 982 acres of land situated in Harris county, Tex.

Second. That in consideration of such sale to him, Harry K. Johnson agrees that from the date of the execution of the instrument he would assume one-third of the costs incurred by Browne and Kenyon in preliminary work in the exploration of the land and making tests, etc., and that he would pay a one-third portion of all expenses which might be thereafter incurred in the continued development of the land and properties for commercial production and sale of such minerals as might be produced, and that as a part of said assumption of such one-third part of such expenses, past and contemplated, he further agrees, as part payment of the one-third of the expenses theretofore incurred by parties of the first part which he had assumed, to pay to parties of the first part $1,250 on January 15, 192S, and the same amount on the 1st and 15th days of each month thereafter until he has paid a total sum of $5,000, it being expressed that it was contemplated by the parties to the agreement that it would be necessary to expend the sum of $5,000 in the com»-pletion of the shaft that was then being pul down on the properties by parties of the first part.

Further stipulations of the agreement are substantially: “That after the advancement of said $5000.00 by Party of the Second Part, if any further monies are needed for said preliminary work, development and preparation of said properties and minerals therein and thereunder, for the commercial production and sale thereof, Party of the Second Part agrees and binds himself to make such further advancements in money, until such additional advancements, if any shall be determined to be neeessary by a majority of the Parties hereto, shall make Party of the Second Part’s advancement equal to an undivided one-third proportion of the total advancement made by all of the Parties to this contract, provided however, that said $5000.00 specifically referred to heretofore, shall be included and considered in determining Party of the Second Part’s undivided one-third portion of the total amounts expended, the purpose and spirit of this provision being to require Party of the Second Part to assume a one-third proportion of the total amount expended and to be expended, if same is expended, in the event that the covenants and conditions hereinafter contemplated and set out are not performed and carried out” (italics ours); that the parties agree to organize and incorporate a company to be known as Tidewater Gypsum Company of Texas, under the laws of Texas, for the purpose of purchasing and buying the interest of the parties in the lands, minerals, etc., which said interest the parties agree to convey to said company.

The contract also contains the following provisions: “Party of the Second Part hereby expressly agrees and binds himself to Parties of the First Part and hereby wstrrants to Parties of the First Part that he will within six months from the date of the incorporation of said Company, and the transfer of the interests of the Parties hereto, to said Company, effect a loan to said contemplated Company in an amount not to exceed One Hundred and Thirty Five Thousand Dollars ($135,000.00) net, either by making said loan himself, or procuring said amount by the sale of all or any part of said $150,000.00 of bonds contemplated herein, at not less than ninety cents (90⅜ of par, said Bonds not to extend more than Five (5) years and to contain redemption clause that same can be redeemed on or before maturity at accrued interest and 5% bonus or premium on 90 days’ written notice of intention to redeem. That Parties of the First Part hereby agree and bind themselves that Party of the Second Part, if necessary to said loan or sale of Bonds, may bind said contemplated corporation to issue as much as twenty-five per cent (25%) of the stock of said corporation to the lender of said proposed loan, as a bonus for the making of said loan.”

After stipulating that 8 per cent, of the stock of the contemplated corporation to be issued should be issued to one J. J. I-Iargan, it is stated that it is expressly agreed that the party of the second part shall effect the loan mentioned within sica months after the incorporation of the company; that a failure on the part of the second party to perform any of the terms and agreements of the contract within- the time provided therein shall, at the election of the parties of the first part, forfeit any and all rights, claim, or interest of party of the second part in and to said properties.

It is also stated that it is agreed that second party is required to perform all the terms and agreements of the contract before his interest in the lease contract, or stock issued by the contemplated corporation, shall become absolute and vested.'

The contract further provides as follows: “It is expressly understood by and between the Parties hereto that in the event Party of the Second Part shall make default in the performance of any of the covenants or obligations herein set out, within the time called for or in the manner herein provided, then, in such case, this contract shall immediately, at the option of the Parties of the First Part, after written notice to Party of the Second Part, be terminated and any sums of money paid or advanced by Party of the Second Part for work, labor or material contributed by Party of the Second Part to the common venture, shall, at the option of the Parties of the First Part, be retained by them as their specified, ascertained and liquidated damages, by them sustained by reason of such default of Party of the Second Part.”

It is also provided that the parties shall keep such books, records, notations, and evidences of the amounts of moneys, work, and labor to be expended or that may be expended in the preliminary development of the minerals mentioned, so that all parties to the contract may know their respective rights, obligations, and interests.

H. K. Johnson paid the four $1,250 items called for in the contract at the times such payments became due, the last being made on the 1st day of March, 1928. He also paid a further sum of $700 when- called upon to do so on the 22d day of March, 1928, and he also paid a bill for the company of $100 at the request of Kenyon and Browne._ He also obligated himself, at the request of Kenyon and Browne, to pay $2,000 due by the company for certain machinery.

The working of the mine and the expenditure of the money contributed by the parties for the development of the property weré under the exclusive control of Kenyon, or of Kenyon and Browne; Johnson having -nothing to do with either the working of the mine or the expenditure of the money.

On the 20th day of June, 1928, thirty days before the six months given him by the terms of the contract in which to procure a loan for the company had expired, Johnson desiring to have the mine inspected for the purpose of ascertaining what it showed as to gypsum deposit sent an inspector to the miñe to make an inspection, but he was, under the direction of Kenyon, denied the right of inspection. It was conceded that without the information sought by Johnson he was in no position to procure the loan for the company.

On the 20th day of June, 1928, thirty days before the six months allowed Johnson by the contract to procure a loan for the company had expired, Howard Kenyon and J. E. Browne wrote Johnson as follows:

“Houston, Texas, June 20th, 1928.
“Mr. Harry K. Johnson,
“Ben Milam Hotel Bldg.,
“Houston, Texas.
“Dear Mr. Johnson:
“This is to call your attention to the terms of the contract between yourself and ourselves, that is J. E. Browne and Howard Kenyon, of date the 16th day of January, 1928, with respect to certain gypsum deposits at Hockley, Texas, owned originally by ourselves in which you took a one-third interest under the terms of the contract referred to above.
“This is further to call your attention to the fact that you have defaulted and failed to perform the conditions, covenants, agreements and considerations set out in said contract and as palled for therein, within the time provided for said performances on your part, and by virtue of the forfeiture paragraph on page eight of said contract, copy of which you have, we are now formally electing to declare a forfeiture on your part, of any interest in the mineral lease on said gypsum and/or rock deposits referred to in our contract of January 16, 1928, and here now formally advise you of such election, and further formally declare a forfeiture of any and all right, title, interest, claim or privilege in and to said gypsum and/or rock deposit under and by virtue of said contract and to any right, title, claim, or interest in or to any or all stock in the Tidewater Gypsum Company of Texas, which may possibly have been issued to you, and further declare that said contract of January 16, 1928, is at an end, is null and void and of no further force and effect.”

After the receipt of this letter Harry K. Johnson brought this suit against Howard Kenyon and J. E. Browne to recover from them the sum of $5,800, same being the amount paid by him to them under the contract above mentioned.

After alleging the execution of the contract by himself on'the one part and Howard Kenyon and J. E. Browne on the other, the payment by him of the $5,800 mentioned in our statement, and the assumption by him to pay a $2,000 obligation of the company, Harry K. Johnson alleged, substantially, that he had complied with all the terms and conditions of the contract and that he had at all times been ready, able, and willing to carry out his part thereof whenever he was called upon so to do, but that defendants Kenyon and Browne, notwithstanding his performance of his part of the contract up to June 20, 1928, and his willingness to continue to so perform his part thereof, on said date declared the contract at an end and refused to be further bound thereby, thus terminating . the same; that they notified him that they had elected to declare all his rights in the properties and the money paid in by him forfeited to them; that he at no time refused to go on with the performance of the contract, nor did Kenyon and Browne, prior to the 20 th day of June, 1928, notify him at any time that they had determined that additional advancements should be made by plaintiff to make his advances equal to one-third of the total sum made by all the parties to the contract; that they at no time demanded of him ijie payment of any sum other than that paid by him so as to make his payment equal to one-third of the payments made by all the parties.- He alleged that while defendants represented to him that they had, prior, to the execution of the contract, advanced to the enterprise the sum of $17,500 in cash, as a fact they had not advanced such sum, but that as the amount so advanced by them is peculiarly within the knowledge of defendants, he is unable to allege the exact amount so advanced, but he does' allege that up to the 20th day of June, 1928, the time defendants 'declared his interest had been forfeited, he had advanced as much as each of the defendants had advanced.

Plaintiff alleged further that on the 20th day. of June, 1928, “more than thirty days prior to the time when plaintiff was to effect the loan in an amount not to exceed $135,000.-00 as provided for in said contract, the defendants wrote this plaintiff that they had elected to declare a forfeiture of any interest in the s$id lease and of any right, title and interest plaintiff had in said lease and • declared that the contract between plaintiff and defendants to be at an end and of no further force and effect; that prior to said time no notice whatever had been given him by defendants that it had been determined by them to be necessary that additional advancements should be made by him in order that his undivided one-third proportion of the total advancements should equal their respective advances nor did defendants ever at any time notify this plaintiff of how much, if any, additional advances they had determined were required of him. As a matter of fact said defendants by their said letter of June 20, 1928, elected to declare the contract at an end without calling upon plaintiff or notifying him as to what their determination, if any, was as to how much additional money should be required and without calling upon him for such advance. As a matter of fact said défendants declared said contract at an end without giving plaintiff any notification of their intention so to do, and without calling upon him to advance any sum or any particular sum of money whatever and without notifying him in any manner as to what determination, if any, they had reached with respect to what additional advances, if any, would be expected of him.”

Plaintiff further alleged: “That having contracted to borrow on behalf of the company and on its credit $135,000.00, under the conditions and as in said contract alternativély set forth, and desiring to have a report upon the shaft which defendants had beefa drilling and which the plaintiff had advanced money to assist, this plaintiff desired to have the said shaft inspected for the purpose of ascertaining specifically what the shaft as thus far drilled actually showed as to the gypsum deposit, and in pursuance of such purpose this plaintiff on or about the 20th day of June, 1928, sent an inspector to &e alleged mine, having given him a letter of introduction to those in charge of said alleged mine in order that said inspector might see and examine the same. Plaintiff alleges that said defendant Howard Kenyon, acting for both defendants, refused to permit the said mine to be inspected, thus prohibiting plaintiff from obtaining any information with respect to the same and making it impossible for plaintiff further to do anything with respect to obtaining a loan upon said property, aná that plaintiff and his agent were thus refused by defendants and defendants’ agents all access to and necessary information with respect to said mine upon which plaintiff had agreed and expected and was prepared and able and willing to make said loan. Plaintiff further says that said inspection was the right to which he was entitled under the contract, and the refusal to permit said inspection constituted such a flagrant and highhanded breach of the contract as that further performance by plaintiff was thereafter impossible and constituted on the part of defendants such- a substantive breach of the contract while the same was in force and effect as to require said defendants under the law to return the money to plaintiff he had advanced under said contract.”

Defendants answered by a general demurrer, by fourteen special exceptions, and for special answer averred that the plaintiif had not complied with the terms of the contract, in that he had failed to contribute money as required of him, though his attention was called to the expenditures being made, and the fact that he was behind in his contribution, and that -defendants had advanced, up to the 20th of June, 1928. approximately $35,-000, of all of which Johnson was advised; that Johnson had only advanced $5,700 and willfully failed to make further advances after being advised to. do so, though he was required so to do under the terms of the contract, and therefore defendants, under 'the terms of the contract, declared him in default and cancelled the contract when it became apparent that he could not make the advancements required of him by the terms of the contract.

All demurrers and exceptions addressed to the plaintiff's petition were overruled. The ease was tried before a jury, to whom the court submitted the following special issue: “After plaintiff Johnson had completed payment of his $5800.00 advancement, did or did not Kenyon and Browne notify him to make further advancements in money?” The answer of the jury to such issue was: “They did not.”

Upon the verdict of the jury and the evidence, the court rendered judgment that Harry K. Johnson should recover “from Howard Kenyon and J. E. Browne jointly and severally the sum of $5800.00, with interest thereon, etc.; that all interest of Harry K. Johnson in the contract sued on, the lease held by Kenyon and Browne, and any proceeds arising from such lease in money, notes, cash or obligations of any kind or character, as well as the interest of Harry K. Johnson in any capital stock or obligations, bonds or notes of the Tidewater Gypsum Company of Texas be in all things declared null and void and of no force and effect.”

It further decreed that the contract between the parties to be at an end and of no further force and effect, “and that such conditional interest held by said Harry K. Johnson under the terms of said contract between plaintiff herein and Howard Kenyon and J. E. Browne, defendants herein, as to said leasehold interest, therein conveyed in and to the property therein described and the proceeds thereof, if any, and the conditional interest of the said Harry K. Johnson in and to any capital stock, obligations, note or bond of the said Tidewater Gypsum Company. of Texas be in all things divested out of the said Harry K. Johnson and title to same vested in the said Howard Kenyon and J. E. Browne, an undivided one-half interest to said J. E. Browne and Howard Kenyon each respectively.”

Howard Kenyon and J. E. Browne have appealed.

By appellants’ propositions 1 to 7, inclusive, it is urged that the court erred in overruling appellants’ general demurrer and their fourteen special exceptions addressed to the plaintiff’s petition and in not sustaining the same, and in not rendering judgment for ¿p-peilant upon their request therefor.

We overrule the contentions so made. In determining the sufficiency of the petition the well-settled rule requires that the court should give to the petition every reasonable intendment in favor of its sufficiency. After a careful consideration of the plaintiff’s petition and applying the rule stated, we have reached the conclusion that it is not subject to either the general demurrer or any one of the special exceptions addressed to it which were overruled by the trial court.

By their fifth proposition appellants insist that the court committed fundamental error in rendering judgment for appellee .upon his petition, in that such petition and the contract made a part thereof show that the contemplated Tidewater Gypsum Company of Texas was an indispensable party to the litigation, as its rights and interests would be so affected by the result of the suit as to require it to be made a party to the same, and therefore no effective judgment could be rendered in this cause without its presence before the court. '

There is no merit in appellants’ contention. Nowhere is it disclosed by the plaintiff’s petition, or by anything in the answer of the defendants, that there was such a corporation as the Tidewater Gypsum Company of Texas. The only reference made in the entire record, including the statement of facts, to the Tidewater Gypsum Company, is the recital in the contract entered into between Kenyon and Browne and Harry K. Johnson. In such contract it is recited only that the parties agreed to organize a corporation. There is no evidence, so far as we have been able to find, that such a company was ever chartered. No stock of the company, as far as shown, was ever issued to Johnson or to any one else. The whole theory of the suit by both parties seems to have-been that it was strictly one by Johnson against Kenyon and Browne as individuals. Johnson’s suit is one to recover from Kenyon and Browne $5,800, which he alleges they received from him and wrongfully withheld from him. It is not shown that the contemplated company, as a separate .entity from Kenyon and Browne and Johnson, had any interest in the subject-matter of this suit. Though the judgment in the cause was rendered on the Oth day of June, 1029, and appellants’ motion for new trial filed on the 29th day of June, 1929, and amended on the 24th day of September, 1929, no complaint was made in either that the Tidewater Gypsum Company was not made a party to the suit. Indeed, it is apparent that the contention that such company was an indispensable party was an afterthought which occurred to appellants for the first time when they filed their assignments of error on the 5th day of December, 1929, six months after the judgment in the cause had been rendered. We do not feel called upon to further discuss a proposition of law submitted in the brief that is foreign to any issue presented by pleadings and which was in no way presented during the trial of the cause.

As shown in our preliminary statement, the contract between the parties of date January 16, 1929, provided that Johnson was to advance to the joint enterprise four payments of $1,250 each, the first on January 15, 1929, one on the 1st of February, 1929, one on the 15th of February, 1929, and one on the 1st of March, 1929, a total sum of $5,000; that after the advancement of the $5,000 was made, and if any further moneys were needed for the carrying on of the preliminary work or development of the properties and minerals, that Johnson should make such further advances, if it is determined, that sue)i advances were necessary by a, majority of the parties, until such additional advances shall make Johnson’s advances equal to one-third portion of the total advances made by all the parties.

Appellants contend that the evidence shows that appellee was advised by them that the majority of the parties to the contract, after the $5,009 had been paid by appellee, and after he had paid a further advancement of $800 and had assumed an obligation of $2,000 that said majority of the parties had decided further advances were needed to carry on the work of development and they had advised Johnson that such advances were so needed, and that after being so advised appel-lee Johnson failed to make his advances equal to a one-third portion of the total advances made by all the parties, and that by reason of such failure Johnson forfeited all his rights in the enterprise and the money he had paid, as a matter of law, and that the court erred in not so holding and in not directing a verdict in appellants’ favor; but if they are mistaken in such contention, the finding of the jury is so against the great weight and preponderance of the evidence as to be clearly wrong, and therefore the judgment should be reversed and the cause remanded.

Appellee, on the other hand, contends that the evidence was sufficient to support the finding of the jury that after appellee had paid the $5,800 appellants did not notify him to make further advancements in money.

We have carefully examined the entire statement of facts and have reached the conclusion that there was ample evidence to support the finding of the jury.

Appellant also contends that the judgment should be reversed for this: That a schedule showing the advancements made by them was introduced in .evidence and placed in the hands of the court stenographer ; that before the case was submitted to the jury appellee got from the stenographer such schedule and failed to return same; and that by reason of such fact the schedule did not go to the jury for its consideration thereof, to the injury of appellants.

Upon the, complaint of appellants of such alleged misconduct on the part of appellee, the trial court, upon a request of appellants for a finding of facts and conclusions of law with reference to such alleged misconduct, found that: “Just before the jury retired and after the conclusion of the testimony, the plaintiff, Harry K. Johnson, went into the office of said G. L. Leach, stenographer, and asked to be given the schedule introduced by defendants and that same was given to him.” That Johnson did not return the schedule pri- or to the retiring of the jury or at any time since, but that all the individual vouchers, checks, receipts, and canceled bills from which the schedule was made were offered in evidence and were taken by the jury into the jury room, and that the schedule was only a résumé of the vouchers, cheeks, and receipted bills that went to the jury; that counsel for defendants in his argument to the jury discussed the data contained in the schedule and argued to the jury from a copy of such schedule the total amount of the items contained in the schedule as well as the several items going to make up the schedule.

Conclusions of Law.

f‘I further conclude that even though this schedule did not go to the jury room with the jury it would not be grounds for a new trial, because the jury saw the exhibit while they were in the jury box and saw each item of such exhibit established by documentary evidence by means of a cheek of vouchers or receipted bills, and the evidence of such expenditures reflected in such schedule was before the jury in its original form of checks, vouchers and receipted bills, and such documents were really of higher value than the schedule itself.”

Having reached the conclusions shown, the court overruled defendants’ motion for a new trial based upon the alleged misconduct of plaintiff.

Taking into consideration the facts and conclusions found by the trial court, we are not prepared to hold that the court abused his discretion in overruling appellants’ motion for new trial. '

Having reached the conclusion that appellants have presented no cause for a reversal of the judgment, the same is affirmed.

Affirmed.


author: PELPHREY, C. J.

text:
    COMMONWEALTH CASUALTY CO. v. THOMPSON.
    No. 2527.
    Court of Civil Appeals of Texas. El Paso.
    April 9, 1931.
    Rehearing Granted April 16, 1931.
    Paul Moss, of Odessa, for appellant.
    John F. Weeks, of El Paso, for appellee.
   PELPHREY, C. J.

This is an appeal from.a judgment on an accident insurance policy. The judgment was for $250 on the policy, $30 interest, and- attorney’s fees of $100.

Appellee claimed $25 per week for ten weeks, under the provisions of a policy issued to him by appellant, and in addition 12 per cent, interest and $250 attorney’s fees, under the provisions of article 4736, Revised Statutes.

Appellant’s assignments present the following questions: (1) That the judgment for penalties is not supported by the pleadings or the evidence; (2) that the attorney’s fee allowed is excessive; and (3) that appellee failed to show by a preponderance of the evidence that he was injured by actual contact with a moving conveyance, or that he was wholly prevented from attending to any and all kinds of business and labor for ten weeks, as a result of his injuries.

Appellee’s petition, as to the penalties, contained the following allegations:

“Plaintiff further represents that he made proofs of his claim as required by law and that the defendant company refused to pay same or any part thereof. Plaintiff says that said proof has been filed with the Company for more than ninety days before the filing of this amended petition and that more than thirty days have elapsed since plaintiff made demands upon the Company for the payment of said claim which defendant has failed to do and that by failure of the defendant company to pay said claim for two .hundred and fifty dollars 'that the said defendant company became liable to pay said plaintiff and policy holder in addition to said two hundred and fifty dollars twelve per cent, damages on account of said loss and reasonable attorney fees’which this plaintiff alleges to be two hundred and fifty dollars.
“Plaintiff says that he has had to employ an attorney to file this suit and prosecute the same to judgment and that a fee of two hundred and fifty dollars is reasonable for a fee for such services.”

We think the above was a sufficient pleading to support the judgment for penalties. While there is no allegation of a specific demand and refusal, yet the allegations “that more than thirty days have elapsed since plaintiff made demands upon tiie company for the payment of said claim which defendant has failed to do,” taken in connection with the allegation “that the defendant company refused to pay same or any part thereof,” meet the requirements of law, and the first assignment is overruled.

The second assignment, questioning the sufficiency of the evidence to show a demand and a refusal, we think must be sustained. We have read the statement of facts, and find no proof of a demand for payment having been made.

Nor does the filing of proofs of loss, as contended by appellee, constitute such demand as will justify the recovery of the penalties. Mutual Life Ins. Co. v. Ford, 103 Tex. 522, 131 S.W. 406; National Casualty Co. v. Mahoney (Tex. Civ. App.) 296 S.W. 335.

The Supreme Court, in Mutual Life Ins. Co. v. Ford, supra, held that this statute was highly penal and must be strictly construed, and it therefore follows that, before an in? surance company can be held, the claimant must allege and prove that demand was made and payment refused.

Appellant’s fourth assignment reads: “The judgment is erroneous, because plaintiff failed to show by a preponderance of the evidence, that he was injured by actual contact with a moving conveyance and was from the date of such injuries continually and wholly prevented from attending to any and every kind of business or labor for ten consecutive weeks.” A copy of the assignment is presented as its fourth proposition.

We think it is clearly established that we must reverse a judgment where there is no evidence to support it, Cox v. Hamilton, 21 Tex. 777; Johnson’s Adm’r v. Shaw, 41 Tex. 428; Buckner v. Carter (Tex. Civ. App.) 137 S.W. 442; Blair & Hughes Co. v. Watkins & Kelley (Tex. Civ. App.) 179 S.W. 530, but that we are not at liberty to disturb a verdict of a jury or a judgment of the trial court because of a mere preponderance of the evL dence, and that we may set them aside only when they are palpably against the weight of evidence, clearly wrong,- show passion or prejudice, or are in such conflict with the justice of the case as to- render them unconscionable. 3 Tex. Jur. Art. 769, pp. 1097-S, and cases cited.

By the above assignment and proposition appellant inferentially admits that there was some evidence as to the matters complained of; therefore we must look to the assignment to determine whether it presents the question as to the judgment being so palpably and flagrantly against the weight and preponderance of the evidence as to lead to the conclusion that the judgment was in such obvious conflict with justice as to render it unconscionable.

It has been held that an assignment that the preponderance • of the evidence does not justify jury’s finding does not raise the question. 3 Tex. Jur. art. 568; Railway Co. v. Jones (Tex. Civ. App.) 187 S. W. 717; Lumber Co. v. Knox (Tex. Civ. App.) 168 S.W. 32.

We have concluded that the assignment fails to call for a review of a question within our power to review, and therefore should not be considered.

The evidence being insufficient as to the judgment for penalties, it must be reversed, and the cause remanded.

On Motion for Rehearing.

In our original opinion we held that the judgment of the trial court should be reversed and the cause remanded by reason of the insufficiency of the evidence to support the judgment for the penalties.

Appellee now presents his motion for rehearing, and asks ■ permission to waive his right to recover such penalties, and prays that we affirm that part of the judgment for the $250 recovered on the policy.

That part of the judgment calling for a reversal having been eliminated by such waiver, the former judgment is set aside, and judgment now rendered affirming the judgment of the trial court except as to penalties.


author: PER CURIAM.

text:
    HARRIS, County Judge, et al. v. ELDER et al., County Com’rs.
    No. 2572.
    Court of Civil Appeals of Texas. El Paso.
    April 11, 1931.
    Rehearing Denied April 13, 1931.

      Mead & Metcalfe, of Marfa, and W. Van Sickle, of Alpine, for appellants.
    Brian Montague, of Del Rio, J. A. Thomas, Lloyd Kerr, and Louis D. Gayer, all of San Angelo, and H. A. Forman, Oo. Atty., and Roy R. Priest, Dist. Atty., both of Rankin, for appellees.
   PER CURIAM.

This is an appeal from an order of Hon. C. R. Sutton, judge of the Eighty-Third judicial district, temporarily enjoining the holding of a county seat election in Upton county, Tex. The ground alleged in the application and upon which the relief was granted was that a valid election for the changing of the county seat of said county from 'the towD of Rankin, Tex., had been held within five years prior to the one attempted to be held.

After appellees’ petition had been filed, 'the district attorney of the Eighty-Third judicial district and the county attorney of Upton county filed a petition .in intervention on behalf of the state of Texas adopting the allegations in appellees’ petition. Appellants duly filed their contest of the petition, and upon hearing the temporary injunction was granted.

Appellants here contend that the holding of an election is a political right, and that the courts are without authority to interfere therewith. They have cited a number of authorities, among which are: Robinson & Watson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067; Id., 98 T.ex. 267, 83 S. W. 182; Townsen, County Judge, et al. v. Mersfelder, 49 Tex. Civ. App. 289, 109 S. W. 420; The City of Dallas v. Railway Co., 105 Tex. 337, 148 S. W. 292; Winder v. King (Tex. Com. App.) 1 S.W. (2d) 587.

We have reached the conclusion that the last-mentioned' case is th.e latest expression of the views of the Supreme Court on the question before us and controls the disposition of this appeal.

In that case the district court refused to enjoin the holding of a county seat election, and that judgment was affirmed by the Court of Civil Appeals. 297 S. W. 689.

After a writ of error had been granted by the Supreme Court, plaintiffs in error filed an application praying that court to enjoin defendants in error from holding the election, canvassing and declaring the result of the ballots cast, or taking any steps whatever towards the removal of the county seat until further orders of the court.

The Supreme Court granted the relief as to the carrying into effect of the result of the election, but expressly refused to restrain the holding of the election. The case was then referred to Section A of the Commission of Appeals, and Critz, J., wrote an opinion for the Commission affirming the judgments of the district court and the Court of Civil Appeals.

The Supreme Court, while it did not adopt the opinion or the reasons given by Judge Critz, entered its judgment affirming the judgments of the trial court and the Court of Civil Appeals as recommended by the Commission.

Under such ’ circumstances, we think it clear that the Commission, before the writing of its opinion, was fully aware of the views of the Supreme Court on the question involved, and wrote the opinion in conformity with the action theretofore taken by that court.

We cannot escape the conclusion that the Supreme Court by its action on the application, whether its reasons were identical with those given by Judge Critz in his opinion or not, was of the opinion that, under the facts of that case, plaintiffs in error were not entitled .to have the holding of the election enjoined.

Whatever its reasons, the action was well supported by the other authorities above mentioned.

The Supreme Court in that ease, under a state of facts practically identical with the facts here, refused the relief here granted by the trial court.

Therefore the order granting the injunction must be reversed, and the injunction dissolved.