author: BELCHER, Commissioner.

text:
    Robert F. HANCOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 39526.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Rehearing Denied June 1, 1966.

      Frank R. Jewell, Dallas, for appellant.
    Henry Wade, Dist. Atty., James H. Miller, James B. Zimmermann and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, five years.

The indictment alleged the theft of fifty-nine documents in writing which were computer programs, and that they were taken on or about November 10, 1964, from the possession of Dan Wilkins. The programs were not set out in the indictment but each was sufficiently described for identification.

The appellant, an employee of Texas Instruments Automatic Computer, a corporation (hereinafter referred to as TI), and William Bennett Smith III, an employee of an insurance company, first became acquainted with each other in May, 1964, and on September 1, 1964, began sharing together an apartment in Dallas. The appellant told Smith his job was classified and for security reasons he could not talk about it, but soon they began discussing computers, computer programs, and the value of computers, as the appellant had been a computer operator and was then engaged in writing and re-writing computer programs and was in possession of computer programs; and he told Smith they would be of great value to Texaco, one of TI’s clients. Upon appellant’s suggestion and offer to finance, Smith agreed to go to Houston and approach Texaco about the purchase of the programs. After a meeting was arranged by telephone with Texaco in Houston for October 16, the appellant gave Smith an index listing all the programs he had and also gave him one program to verify the authenticity of those listed in the index. The appellant gave Smith his walking cane to carry for protection if Texaco tried to take the index and programs from him. After a meeting with two representatives of Texaco, Smith returned to Dallas and told the appellant that the representatives after examining the material, which they said was very valuable, stated that they could not enter into any confidential negotiations. To this report the appellant became very upset, but when nothing developed during the next few days the appellant asked Smith to again contact Texaco, which he did. In a short time, Don Sims, purportedly of Texaco, told Smith by telephone while appellant listened on an extension, that they were interested in the programs, and if Smith would bring them to Houston they would examine them and be in position to begin discussions on the price, and they agreed to meet November 11.

The appellant gave Smith the programs, took him to the airport, and Smith made the contact in Houston with a man using the name of Don Sims, who said he was in the computer department. Smith showed Sims the index and a program, then Sims asked for the other programs and Sims* companion examined each of them. When Sims asked for a price, Smith, believing he was an agent of Texaco, offered to sell the programs for five million dollars. At this time Sims took possession of all the material Smith had and then revealed that his name was Dale Simpson, an investigator, and told Smith he would meet him at a nearby office. Smith immediately telephoned the appellant saying, “We are in a heck of a lot of trouble,” and the appellant replied, “Yes, I know it,” and Smith returned to Dallas.

Dan Wilkins testified that he was the manager of the Dallas Computer Center of Texas Instruments; that he knew the appellant, who began working at TI as a computer operator and later began writing and rewriting computer programs; and that the programs shown him by Dale Simpson were the same listed in the indictment. It was stipulated that Dan Wilkins had read the indictment in this case, and that the items listed in the indictment were his corporeal personal property and in his care, control, and custody as a manager of TI, and he did not, for those programs listed in the indictment, give permission to remove them from the premises.

Testimony was introduced that each of the programs listed in the indictment had a reasonable market value of more than fifty dollars; that all the programs listed in the indictment had a reasonable market value of approximately two and one-half million dollars; and that the appellant did not have consent to take and appropriate said programs to his own use and benefit.

Testifying in his own behalf, the appellant admitted his employment at TI and that he had been engaged in writing and rewriting computer programs at the time here in question, and that all of the programs listed in the indictment were included in his assignment; that TI wanted to complete the program production schedule as soon as possible, and for appellant to comply with the plan of speedy production he would have to take this material to his apartment and work on it both at home and the office, and Wilkins consented to this work plan; that he began working on the programs at home immediately and continued until he left TI, and during this period he had at home at least 75 or 100 copies of programs. During this time Smith was present when he worked on programs at home and was aware of and showed interest in the programs. Appellant further testified that the first time he knew he was charged with improperly taking the programs from TI was on November 11, when he was told by a security officer at TI that Smith at that moment was in Houston offering a large number of programs for sale to Texaco, and it appeared he had furnished these programs to Smith; that he was then placed on suspension and it was so emphatic it scared him and he insisted on advising with an attorney; that when he arrived at the apartment Smith called from Houston saying he was in trouble, and appellant asked him what it was about and Smith replied that he would tell him when he got home; that he never gave Smith any programs or directed him to sell any; that he had missed the programs in question but thought he had misplaced them.

It is contended that the computer programs alleged to have been stolen do not constitute corporeal personal property and were not the subject of theft.

Title 17, Chapter 8 of the Penal Code, entitled Theft In General, in Art. 1418, Vernon’s Ann.P.C., defines “property” in part as follows:

“The term ‘property’, as used in relation to the crime of theft, includes * * * all writings of every description, provided such property possesses any ascertainable value.”

It is evident that the computer programs as alleged and the evidence in support thereof show that such property is included and comes within the meaning of the provisions of the statutes defining the offense of theft.

Appellant contends that the trial court erred in permitting the state to prove the contents of the documents as charged in the indictment by oral testimony over his objection that the documents themselves were the best evidence and should be introduced in evidence.

The indictment is in the ordinary form for charging felony theft. None of the computer programs was set out in the indictment, but each of them was sufficiently described for identification. No complaint was made at the trial or on appeal to the sufficiency of the indictment. The computer programs were produced and available during the trial but were not introduced in evidence. Their introduction into evidence in light of the pleadings and the evidence was not required. Fulshear v. State, 59 Tex.Cr.R. 376, 128 S.W. 134; 55 Tex. Jur. (2) 465, Sec. 202. However, it is pointed out that the state offered the programs several times during the trial to the appellant and his attorney for examination hut they never availed themselves of the offer. The programs were also made available to the jury, but for security reasons the state requested that they not be formally introduced in evidence, which request the trial court granted. The testimony of the appellant reveals that he was familiar with each of the computer programs described in the indictment.

It is contended that the testimony of the witness Smith pertaining to the computer programs was not admissible on the ground that they were illegally obtained by the state.

Dale Simpson, an investigator employed by Texas Instruments and Texaco, testified that after determining that Smith had exhibited and offered for sale computer programs to representatives of Texaco which belonged to TI, he contacted Smith in Houston on November 11; that at the meeting Smith exhibited to Simpson and his companion the computer programs which they examined, and then he (Simpson) identified himself, took possession of the computer programs which are the programs involved herein, and left, taking them to Dallas.

From the facts it is evident that Simpson had reasonable grounds to suppose and believe that the computer programs were stolen, and under Art. 325, Vernon’s Ann.C.C.P., he had the right to prevent the consequences of theft by taking possession of the programs and delivering them to a peace officer. The programs were legally obtained and were admissible in evidence. Lasker v. State, 163 Tex.Cr.R. 337, 290 S.W.2d 901.

It is insisted that there is no evidence showing the market value of the computer programs in Dallas County.

Robert C. Dunlap, Jr., testified that he had degrees in science and geology and had done graduate work in geophysics and geology at Harvard; that he was vice-president of Texas Instruments and had been employed by them thirty-two years; and that he was president of Geophysical Services, Incorporated. He further testified as follows:

“Q How long have you been associated with the, and connected with the computer aspect of the business?
“A Since it began (ten years ago).
* * * * * *
“Q All right, sir. I’ll ask you if you are familiar with the computer programs that are listed in that Indictment?
“A Yes, sir.
“Q Are those computer programs that are listed in that Indictment, are they computer programs of Texas Instruments ?
“A Yes, sir.
“Q Now, are there what I would think of as competitors in that field, that is, seismic programs as competitors ?
“A Yes, sir. I think we were the first to introduce this type of technology. Other people are working in the area now.
“Q Now, let me ask you this: In the past, have companies or competitors or whatever you want to call it, have they made requests of your organization seeking perhaps to purchase programs from you?
“A. Yes, sir.
“Q Would those include the packages or the lists of programs included in the Indictment ?
“A Yes, they do.
Appellant’s Attorney: Excuse me, Your Honor, I object to that as hearsay.
The Court: Overruled.
“Q Assuming that Texas Instruments, the Science Services Division, assuming that the programs listed in the indictment were going to be sold, what person in the whole Texas Instruments organization would be the one to decide, first of all, what value we ask for ?
“A I would be the one.
“Q Now, in relation to these computer programs and the seismic computer programs, is there a market for these — by that, I mean if you were willing to sell them to a willing buyer a willing buyer under no compulsion to buy, I have to state that to you because that’s the way the law says it, could you find a buyer— Do you understand my question?
“A I do, and certainly there is a market.
“Q Now, in regards to this Indictment, sir, I’ll ask you if each of those programs in that Indictment, thinking about each one of them separately, yet from the standpoint of you as a willing seller under no compulsion to sell and a willing buyer under no compulsion to buy, in order to arrive at a reasonable market value of each one of those programs there separately, a reasonable market value for each one of those, would it be more than $50.00 ?
“A Yes, sir.
“Q Now, in relation to the entire computer programs, the entire package listed in that Indictment, can you give me any opinion, your own opinion, based upon your knowledge of the business and circumstances— can you give me any opinion what the reasonable market value of all of those programs would be?
“A Yes, sir.
“Q What would that be?
“A A minimum figure would be approximately two and a half million dollars.
“Q Now, is that being conservative ?
“A Yes, sir.”
On cross-examination Dunlap testified:
“Q Now, you say that there is a market for these programs here in Dallas County ?
“A I said there’s a market. I am sure there’s one in Dallas County.
* * * * * *
“Q These programs, Mr. Dunlap, were developed by the employees of Texas Instruments, right?
“A That is right.
“Q They are for use only by the personnel of Texas Instruments?
“A That’s right.
“Q You maintain a degree of secrecy and security concerning these?
“A Yes, sir.
“Q And the fact that these programs, insofar as we know, the fact that these programs are superior to any other programs, that gives you an economic advantage over other competitors ?
“A Well, that’s our opinion.
“Q Are the contents of these programs known only to the people within the Texas Instruments company?
“A Yes, sir.
* * * * * *
“Q And at times a great deal of money and effort is expended in the development of a program?
“A That’s right.
“Q Now, these particular programs listed in this Indictment, insofar as you know, are they unique within this particular field of geophysical use with computers?
“A Insofar as we know.”

Dan Wilkins, manager of the computer center for Texas Instruments, testified in part as follows:

“Q Do they (computer programs) have anything to do with operations that Texaco is interested in?
“A Well, yes, Texaco have purchased from us two of our TIAC computers and they are in the process of trying to find oil with them.
“Q Of the programs that you read in the Indictment, would Texaco have any more interest in those programs than they would in any other programs that you all have out there?
“A Well, at that time, these were—you might say our hottest thing going— they were what we were selling as service with or to Texaco based on the use of these programs.
“Q These are programs listed in the Indictment ?
“A Yes, sir.”

This evidence was sufficient to authorize a finding that the computer programs as alleged had a market value in excess of fifty dollars each.

The refusal of the trial court to require the state to elect the count upon which it sought a conviction is urged as ground for reversal.

The indictment alleges only one count which includes and describes each of the fifty-nine computer programs. In submitting the case to the jury, the trial court required the jury to find beyond a reasonable doubt that the appellant, either alone or acting together with another as principals fraudulently took the fifty-nine computer programs described in the indictment before they could find him guilty; or if they had a reasonable doubt thereof, to acquit him. In considering the evidence in light of the allegations in the indictment, the motion to elect was properly refused. 30 Tex.Jur.(2) 609, Sec. 41.

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

Opinion approved by the court.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Jesse ALMENDAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39554.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Rehearing Denied June 1, 1966.

      Ray Stevens, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Charles E. Bonney and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is arson; the punishment, two years.

The state’s testimony shows that appellant lived in a house at 6825 Avenue P. in the city of Houston, which house was owned by E. G. Wessels.

Mrs. Gloria Dean Gilmore, a neighbor who lived in the third house down the street from appellant, testified that on the night in question, shortly after midnight, she observed the appellant and his wife sitting in an automobile parked in appellant’s driveway; that they appeared to be angry and appellant got out of the car, slammed the door, and went inside his house. Some thirty seconds later, appellant’s wife got out and followed him inside the house. The witness then left her home and went across the street to a neighbor’s house, which was directly in front of appellant’s home. From the front porch of the neighbor’s house she could hear a noise coming from appellant’s house which sounded like “furniture being pushed around and broken glass.” The witness testified that she then went to her home to get some cigarettes. As she was returning to her neighbor’s house, her neighbor stated that there was “a fire across the street.” The witness then observed a fire at appellant’s house and proceeded on to the neighbor’s house and called the fire department. The witness stated that, shortly thereafter, two arson investigators arrived at the scene and after talking to her they went to appellant’s house and opened the door. At that time she observed appellant inside the house, dressed in slacks, without a shirt, and “fixing to start out the door.” She stated that appellant then turned around and went back through the house and she later saw him in custody of one of the investigators. She further testified that when the firemen arrived at the scene they went inside the house and brought out appellant’s wife, who was then limp and “looked like she was dead.” At such time the wife had a black eye and a bruise on the side of her face.

H. G. Wooten, an arson investigator for the city of Houston, testified that he and his partner, B. A. Cook, arrived at the scene at 1:41 o’clock, a. m., and after talking briefly to Mrs. Gilmore they went to appellant’s house, where he observed smoke coming out the window and could see flames on the east side; that when he opened the front door he saw the appellant, dressed only in his trousers, coming toward the door; that they asked him if anyone else was in the house and he replied “no, that he was the only one.” Appellant then turned around and ran toward the back. Just before he entered another room they again asked him if anyone else was in the house and he replied he was the only one, and kept going. The witness testified that about this time his partner stepped over and picked up a lady who was lying on the floor and who was later identified as appellant’s wife. The wife appeared to be unconscious and had a bruise on the side of her face and had a black eye. The witness testified that at such time he and his partner observed six separate and distinct fires burning in the house and that there were piles of women’s clothing burning at the point of origin of each fire. Near each fire there were struck and unstruck matches. At two of the fires window curtains were burning and wallpaper was burning in two of the rooms. The witness stated that part of the house was actually burning and charred; that the wood underneath the canvas and wallpaper was burning and at two of the points of origin there was a small bit of charring on the window sill. The witness further testified, without objection, that in his opinion the six individual points of origin were of an incendiary nature. The witness further stated that the furniture in the house was disarranged and broken; that a mirror was broken and a lavatory was pulled off the wall in the bathroom and water was running on the floor. He further swore that in leaving the house appellant jumped over his wife’s body and ran out the back door.

E. G. Wessels, the owner of the house, testified that two days after the fire he went to the address and talked to appellant; that at such time appellant stated that he had an accident and said, “ ‘Don’t bother, I’ll fix all this’ ”; that when the witness stated he intended to make a claim appellant said, “ ‘You won’t have any losses, I’ll fix it.’ ” Appellant further related to the witness that he and his wife had gone out on a party and “ ‘We were doing some celebrating and I guess we overdid it * * * and the mattress had caught fire.’ ” The witness swore that he did not give appellant permission to set his house on fire.

Appellant did not testify or call any witnesses in his behalf.

The issue of appellant’s guilt was submitted to the jury upon a charge of circumstantial evidence.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction.

It is insisted that the conviction cannot be sustained because the facts proven did not exclude every other reasonable hypothesis except that of appellant’s guilt and particularly the hypothesis created by the witness Wessels’ testimony that the cause of the fire was an accident.

With such contention we do not agree.

While the witness Wessels did testify that appellant stated the fire started in a mattress and was an accident, the evidence —together with the other facts and circumstances — was sufficient to exclude the hypothesis of an accident or any other reasonable hypothesis except that of appellant’s guilt. In this regard it should be noted that the court was not requested to submit and did not submit in his charge to the jury the defense of accident.

We conclude that appellant’s presence in the house at the time of the fire, together with all the other surrounding facts and circumstances, is sufficient to sustain the finding of the jury that appellant committed the offense charged. Boroquez v. State, 158 Tex.Cr.R. 568, 258 S.W.2d 318; Rogers v. State, 161 Tex.Cr.R. 536, 279 S.W.2d 97.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Glen Ray DOVE, Appellant, v. The STATE of Texas, Appellee.
    No. 39450.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Rehearing Denied June 1, 1966.

      Robert D. Batjer, Jr., Nelson Quinn, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with a prior conviction for burglary alleged for enhancement; the punishment, 12 years.

The witness Dugan testified that he was employed by the Mac Andrews Appliance Store, that at the close of business on October 22, 1964, he locked up the store and that on the following morning when he came to work, the officers were there investigating a burglary.

Robert Andrews testified that he opened his son’s place of business on the morning of October 23, 1964, and discovered that the door to the safe had been forced open, that a vent in the air conditioner in the ceiling had been broken in, that the back door, though closed, was not latched and that a stereo, several radios and some money were missing.

Mac Andrews testified that the serial number on a stereo and a transistor radio which were returned to him by the police corresponded exactly with those on the invoices in the files of his business.

Parole Officer Spiller testified that appellant had been paroled under his supervision in July 1964, and that on November 4, appellant appeared at his office to make his monthly parole report. During this interview he ascertained that appellant had made misrepresentations about his employment and was unable to explain satisfactorily the sum of money which was in his possession, at which time the parole officer reprimanded appellant for leaving the county without permission.

Parole Officer Linn testified that he was present while appellant was being interviewed by Spiller, and he went out to the street to check the license number of appellant’s auto and found a Betty Moore seated therein and that on the front seat a portable radio was in open view. He accompanied Betty Moore back into the building, and subsequently he and Officer Spiller took appellant and Betty to an apartment where they found a stereo and other transistor radios which were later identified by Mac Andrews as having come from his store. At the time such evidence was offered, appellant’s counsel said to the court, “We have stated that we will not object to the search. * * * ” A further examination of the automobile revealed a paper sack containing quarters, a pair of tin snips, a coal chisel, several large screw drivers and a four pound sledge hammer.

Sgt. Emerson and Lt. Strickland also testified that they accompanied the other officers to the apartment where appellant said he lived. They further testified that appellant opened the door for them when the apartment was searched, that they also found evidence in the form of letters and women’s clothes that Betty Moore lived in and shared that apartment with appellant, and that at 2:30 that afternoon appellant was booked for investigation of a parole violation.

The prior conviction was established by proof and by stipulation.

Appellant did not testify in his own behalf, but called his mother who testified that on the night in question she had gone to an apartment where appellant resided with Betty Moore and that the two of them accompanied her to her rural home where they spent the night.

We shall discuss the contentions advanced by counsel by brief and in their argument.

It is appellant’s primary contention that the unexplained possession of recently stolen property as shown by the record is insufficient to support this conviction for the burglary in question. Reliance is had upon the holding of this Court in Prather v. State, 128 Tex.Cr.R. 342, 81 S.W.2d 528, where this Court said that the presence of stolen property in a house occupied by Ike Prather, Sibyl Norton and Ike’s brother, Qifford and his wife, was not sufficient standing alone to sustain the conviction. The Court there held that appellant’s brother, who was shown to have been an occupant of the house, was equally as capable of having committed the theft. In the case at bar we have no other occupant of the apartment save Betty Moore, who the jury might reasonably have concluded was physically incapable of kicking in the bottom of the air conditioner, dropping from the ceiling to the floor and then forcing entry to a safe by use of a four pound sledge hammer, a chisel and a punch.

In our recent opinion in McKnight v. State, Tex.Cr.App., 399 S.W.2d 552, also relied upon by appellant, the witness Firestone had an equal opportunity with the accused of stealing the motor in question, and an equal opportunity of storing it where it was found; in addition, Firestone, after fleeing the state, had written the accused letters in which he threatened to implicate him in the theft of the motor if his demands were not met.

It is clear to us that each case cited above can easily be distinguished on the facts from the case at bar, and that they are not controlling. The State relies upon the holdings of this Court in Adame v. State, Tex.Cr.App., 372 S.W.2d 545; Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747, and Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575, which we deem to be more nearly in point and to control the disposition of appellant’s contention in this regard.

Appellant next contends that the court erred in declining to declare a mistrial when one of the officers described the items found in the automobile, the title to which appellant’s mother testified was in appellant’s name, as “several large tools which would appear to be burglary tools.” The trial court promptly sustained appellant’s objection as to the conclusion of the officer and twice instructed the jury not to consider the same for any purpose. It is next contended that the court erred in failing to grant a mistrial when one of the officers testified “I was talking to him with reference to some previous burglaries.” Again the court promptly sustained the objection and twice instructed the jury not to consider the answer. It should be noted that appellant was on parole from a conviction for a previous burglary.

It is next claimed that the court erred in permitting the prosecutor to ask appellant’s mother if she had not made statements to others, including the judge who tried this case, that she did not know where appellant was on the night of October 22, 1964. Each time the question was propounded, the witness qualified her answer describing her mental processes; the court permitted the question to be asked until she gave an unequivocal denial, and then instructed the prosecutor to discontinue the interrogation. Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706, relied upon by appellant does not call for a reversal of this conviction based upon the contention set forth above.

It is next urged that the court erred in failing to grant a mistrial when one of the officers in recounting his conversation with appellant about his parole violations stated “and then he admitted. * * * ” The record does not reflect what appellant admitted, and all of the officers testified that he was not under arrest at the time the conversation took place. The prudent trial court sustained appellant’s objection to the answer and instructed the jury not to consider the answer for any purpose.

We construe the prosecutor’s argument as nothing more than a plea for strict law enforcement which we have held proper in Henderson v. State, 163 Tex.Cr.R. 573, 295 S.W.2d 215, and Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260. By no stretch of the imagination could our holding in Cox v. State, 157 Tex.Cr.R. 134, 247 S.W.2d 262, upon which appellant relies, be held applicable to the argument before us here.

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


author: WOODLEY, Judge.

text:
    Robert Earl McILWAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39566.
    Court of Criminal Appeals of Texas.
    May 18, 1966.

      George S. McCarthy, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., John W. Broadfoot, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, death.

The badly decomposed body of Sergeant Robert John Roeske was found in a locker of his room in Barracks 3419 at the Amarillo Air Force Base on July 6, 1965.

Evidence was offered showing that his death was caused by choking and strangulation with a necktie, as alleged in the indictment.

A written confession of appellant, made to Detective Lieutenant Charles Hollis of the Amarillo Police Department on the night of July 15, 1965, was admitted in evidence following a hearing before the court in the jury’s absence.

At the hearing, appellant testified and elicited from Lieutenant Hollis and other officers testimony to the effect that upon being advised of his right to an attorney he asked to use the telephone to call Mr. Miller, at the Worth Hotel, appellant’s testimony being that he wanted to call Miller so that he could call an attorney.

The trial judge disposed of the issue of denial of the right to counsel in his ruling at the conclusion of the hearing:

“In my opinion this statement is admissible. The indications are that the man knew that he was wanted by the police, and had opportunity at that time to arrange for an attorney; was alone in a room with a telephone, by his own admission for some hour or so, and had opportunity at that time to use it if he wanted to. I see no indication of any merit whatever in any contention that the statement is not admissible. The Reporter will enter this as the order and finding of the Court in this case. The confession will be admitted.”

Appellant further testified at the hearing before the court that prior to making the statement he talked to Captain Wynne in a back room in the Petroleum Building for at least an hour and a half, and Capt. Wynne gave him two polygraph tests; that after the first test Capt. Wynne told him he was lying. Appellant also testified:

“Q. Did he say anything to you with reference to making a statement, or signing a statement ?
“A. Yes, he did.
“Q. What did he say?
“A. He first asked me questions about whether I would rather be shot by a gun—
“Q. Questions about what?
“A. About the way I wanted to die, if I had to die, — by the electric chair, the gas chamber, with a gun, or something like that. He told me I could make a statement and that it would be easier on me.
“Q. If you made a statement?
“A. Yes, sir.
“Q. What if anything did he .say, if you didn’t make a statement?
“A. He said that if I didn’t make a statement that he would request the death penalty.
“Q. Did you know he was a police officer at that time?
“A. No, I thought he was just a regular civilian.
“Q. Did he ever identify himself as to what he was or who he was ?
“A. No, he didn’t.
“Q. Did anyone else?
“A. Not that I know of.
“Q. When did you first learn he was a captain with the police?
“A. I think I learned the following day who he was, on the morning of the 16th.
⅜ ⅝ ⅜ ‡ ‡ ⅜
“Q. And do I understand that Captain Wynne told you that if you made a statement it would be easier for you?
“A. Yes, sir.
“Q. And if you didn’t, he asked you how you wanted to die?
“A. Yes, sir.
“Q. That’s all.”

Captain Wynne was not called to testify.

The state contends that appellant’s testimony is contradicted by the testimony of Lt. Hollis after the hearing in the jury’s absence that appellant “wasn’t mistreated in any way.” We do not agree.

In his testimony before the court Lt. Hollis testified that he left Captain Wynne’s office about 10:30 and later returned and took the statement, and testified:

“Q. Did Prather ever leave Captain Wynne’s office?
“A. Yes, sir.
“Q. With you?
“A. Yes, sir.
“Q. Who remained there when you and Prather left?
“A. Captain Wynne, Captain Nicholson; the two OSI Agents, and the defendant — I don’t know, there may have been some news men there, at the time.
******
“Q. Captain Wynne operates a commercial polygraph concern there, does he not?
“A. Yes, sir.
* * * * * *
“Q. Do you know whether or not the defendant was interrogated by Captain Wynne, privately, outside of your presence, in his private office, where the polygraph machine is?
“A. I am sure he was interrogated outside of my presence.
“Q. There in the Petroleum Building?
“A. Yes, sir.”

Assuming, however, that an issue of fact was raised as to whether Police Captain Wynne made the statements attributed to him by appellant, it is clear that such fact issue was not resolved by the trial court as required. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Harris v. State, Tex.Cr.App., 384 S.W.2d 349; Dixon v. State, Tex.Cr.App., 383 S.W.2d 928.

The record reflects the following:

“Mr. McCarthy: I presume that the Court will at some time prepare a statement of facts with reference to this?
“The Court: The Statement of Facts speaks for itself. I make findings only as to conclusions of law.
“Mr. McCarthy: Note our exception.”

The judgment is reversed and the cause remanded.


text:
    Robert Vernon BRUCE, Appellant, v. The STATE of Texas, Appellee.
    No. 39528.
    Court of Criminal Appeals of Texas.
    April 27, 1966.
    Rehearing Denied June 1, 1966.
    Charles W. Tessmer, Emmett Colvin, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Charles Caper-ton, Tom F. Reese and W. John Allison, Jr., Asst. Dist. Attys., Dallas and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted of the offense of murder with malice, the jury assessing his penalty at life in the penitentiary.

The summary of the evidence in appellant’s brief fairly presents the facts and is substantially as follows:

The daughter of the appellant, aged 12, at the time of the shooting, lived with her parents, the appellant and his now deceased wife. The daughter testified that on December 22, 1964, the morning of the shooting, she, her mother, and the appellant only were in the house; that on the previous night, her father was drinking when he came home and she heard her mother say that night to her father that if he did not stop drinking that she was going to have him put into the hospital; that her mother and father never had any arguments; that she was awakened by hearing the shot fired; that her mother and father were talking that morning before she heard the shot, her father talking in a loud voice; that she heard her mother’s voice but that her mother did not sound like she was mad or arguing; that she heard her father fussing about a truck transaction that he had with some other people; that she heard appellant say the morning of the shooting that he was going to get on to those people that he had had truck transactions with, or words to that effect.

Officer Walker testified that he received a call to appellant’s address on the morning of December 22, 1964; that, receiving no response to his knock, he entered and saw nothing in the living room, he turned toward the hall and bedroom and saw the appellant standing there in the room and the deceased on the floor; that he asked appellant what had happened, and that appellant, who was partially crying, said he did not know why he did it and that he, appellant, kept asking over and over again if she was dead and saying that he “did not mean to do it”; that he found the weapon on the shelf in the closet (presumably the hall closet); the weapon being admitted into evidence — a .22 calibre pistol; that the gun was found on the shelf and that the shelf was in the back of a closet; that the gun was lying on the right as you face the closet on the outside; that he was of the opinion that appellant had been drinking.

The cause of death, according to the pathologist, was a gunshot wound of the chest.

C. L. Sheffield, brother of the deceased, testified to the bad reputation of appellant as a peaceful and law-abiding citizen, and that in the spring of 1959, when he was staying with appellant without paying rent, appellant came and he was drinking and in an ensuing argument struck the deceased with his hand, knocking her to the floor.

The wife of Sheffield testified that on June 28, 1963, she called the home of appellant and upon appellant’s answering the phone, she asked to speak to the deceased, and appellant stated, “Well, I just shot her.” “* * * What shall I do?” “* * * Well, I think she is dead.”

The owner of a sporting goods store, one Brantley, testified to selling appellant weapons and that on December 16, 1964, appellant purchased a pistol and box of ammunition ; that on December 17, he returned the pistol and after accepting the pistol back he questioned the appellant and appellant stated that he “ * * * drove around all afternoon — I was going to kill my wife with it” or something to that effect; he further testified that appellant said that he had talked himself out of it or something, threw the shells away, and said he was not going to do it.

The appellant, testifying in his own behalf, related certain difficulties he had been having with a trucking concern located in Houston, Texas; that on the morning in question, the matter was preying on his mind and he was discussing this with his wife, the deceased, the discussion being that which his daughter heard; that he had been drinking the prior evening; that as he discussed the Houston matter with his wife he became mad, jumped up, and said he was going to Houston to settle it; and he probably was talking in a loud voice at the time; that he was not mad at the deceased nor she at him; that he went to the closet to get his pistol (as people in the trucking business get pretty rough at times) and the deceased ran after him into the closet; that as he turned around they met head-on at the entrance of the closet, he having the gun in his hand; that he thought he jerked the gun back and away, but that the next thing he knew she had her hand on her chest, called his name, and fell to the floor face downward; that he then went to the telephone, stated that he had shot his wife, and asked the operator to send an ambulance; that his daughter came in at that time and he believed that is why they found him standing in the middle of the room; that he had no recollection of the telephone conversation testified to by Mrs. Sheffield; that he did not recall any conversation about shooting his wife, with witness Brantley; that he caused the trigger of the gun to be pulled; that he probably jerked'it with his hand in trying to step aside in going around the deceased as he met her coming into the closet.

The appellant’s mother testified that appellant had some nervous problems and drinking problems; that he had never been convicted of a felony; that appellant had never hurt deceased nor any of the children; that appellant was ill in the Army and came out much worse, one of the doctors stating that he should not have been released when he was.

The appellant insists that the evidence is insufficient to support the conviction on the ground that the state, in making out its case in chief, proved exculpatory statements made by the appellant to officer Walker upon his arrival at the scene of the shooting which it did not disprove.

The appellant relies upon the following portion of the testimony of officer Walker as being exculpatory, to wit: “he (appellant) didn’t mean to do it,” that is, he did not mean to shoot the deceased.

The appellant testified on the trial and his testimony corresponds and is consistent with his alleged exculpatory statement, and the theory advanced in said statement and in his testimony was fairly submitted in the charge of the court to the jury.

The submission of the defensive theory raised by said statement and his testimony rendered inapplicable the general rule as to exculpatory statements. 31 Tex. Jur. (2) 697, Sec. 128; 1 Branch (2) 105, Sec. 95; Redman v. State, 162 Tex.Cr.R. 524, 287 S.W.2d 676; Stewart v. State, 168 Tex.Cr.R. 166, 324 S.W.2d 229.

It is observed that in submitting the case, among other instructions, the court charged the jury that they could not convict the appellant unless they found beyond a reasonable doubt that the killing of the deceased by the appellant, if he did, was with the specific intent to kill, or if they had a reasonable doubt thereof to find him not guilty.

The court also charged the jury that if they believed that the shooting, if any, was accidental or if they had a reasonable doubt thereof to acquit him.

Further, the court instructed the jury that if at the time of the shooting the appellant did not intend to kill the deceased, or if they had a reasonable doubt thereof, to find him not guilty.

There were no objections or requests regarding the court’s charge.

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

Opinion approved by the court.


text:
    Richard MOATS, Appellant, v. The STATE of Texas, Appellee.
    No. 39642.
    Court of Criminal Appeals of Texas.
    May 18, 1966.

      See also Tex.Gr.App., 402 S.W.2d 923.
    Marcial A. Knapp, Angleton, for appellant.
    Tom Kenyon, Dist. Atty., Wallace N. Shaw and Ogden Bass, Asst. Dist. Attys., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is sodomy; the punishment, three years.

The prosecuting witness, a boy sixteen years of age, testified that on the occasion in question he had run away from home and spent three nights with the appellant in a trailer, in Freeport. On the first night, which was on Saturday, the two looked at pictures of girls “that were not fully clothed.” On the second night, after they had gone to bed, the appellant, with consent of the prosecuting witness, committed an oral act of sodomy upon him. The next night the same thing happened.

Following his arrest, appellant made and signed a written confession to chief of police N. H. Lassiter, which statement was introduced in evidence as state’s exhibit #1.

Prior to admitting the exhibit in evidence, a hearing was held by the court, in the absence of the jury, with reference to the execution and voluntary nature of the confession. In the hearing, chief Las-siter testified that appellant freely and voluntarily made the confession after having been duly warned and that no request was made by appellant to consult with counsel.

Appellant testified that he was told and led to believe that things would go “easier with him” if he gave the statement. This was denied by chief Lassiter.

At the conclusion of the hearing, the court made an independent finding, duly entered of record, that appellant freely and voluntarily made and signed the' written confession after having been duly warned. The court further found that appellant expressly waived the right to counsel when informed by officer Lassiter that he was entitled to counsel.

In the confession, appellant related, in effect, that on the night in question, when the prosecuting witness was spending the night with him, he committed the oral act of sodomy.

Appellant did not testify.

The evidence is sufficient to support the judgment of conviction.

Appellant’s sole claim of error, on appeal, is that his court-appointed counsel was not allowed ten days to prepare for trial, as provided by Art. 494, Vernon’s Ann. C.C.P., which was in force at the time of trial.

He attempts to first present such contention by a purported formal bill of exception, #1. The bill, as presented to the trial judge, alleged that the court erred in overruling appellant’s first application for a continuance because his court-appointed counsel had not been allowed ten days to prepare for trial and that he was not prepared to go to trial on the date set. The bill of exception was approved by the trial judge, with certain qualifications. In the qualifications to the bill, the court certifies that counsel was appointed more than ten days prior to the date of trial. Appellant excepted to the court’s qualifications to the bill but filed no bystanders bills.

We are unable to agree that the court’s action on the bill was tantamount “to no action at all,” as in Moore v. State, Tex.Cr.App., 380 S.W.2d 626.

Under the record, nothing is presented for review by the bill. Wortham v. State, 169 Tex.Cr.R. 164, 333 S.W.2d 158; English v. State, 170 Tex.Cr.R. 56, 338 S.W.2d 446; Williams v. State, Tex.Cr.App., 398 S.W.2d 931.

It is next insisted that if the formal bill cannot be considered, the alleged error is presented as an informal bill of exception, under Art. 760e, V.A.C.C.P., by appellant’s motion for continuance filed in the cause, together with the court’s order thereon showing his exception to the court’s ruling.

The motion for continuance was not sworn to by appellant, as required by Art. 545, V.A.C.C.P., and hence was properly denied. McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521.

The judgment is affirmed.

Opinion approved by the court.


text:
    Richard MOATS, Appellant, v. The STATE of Texas, Appellee.
    No. 39643.
    Court of Criminal Appeals of Texas.
    May 18, 1966.

      Marcial A. Knapp, Angelton, for appellant.
    Tom Kenyon, Dist. Atty., Wallace N. Shaw and Ogden Bass, Asst. Dist. Attys., Angelton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order revoking a suspended sentence.

The record shows that on February 22, 1965, appellant was convicted in the District Court of Brazoria County, in Cause #6627, of the offense of sodomy and his punishment was assessed at five years in the penitentiary. On application of appellant, the sentence was suspended by the court during appellant’s good behavior, and he was released upon his own personal recognizance in the sum of $1,000.

On November 22, 1965, a motion was filed by the state to make final the suspended sentence, which motion alleged that on October 26, 1965, during the period of the suspended sentence, the appellant had been finally convicted in said court in Cause #6628 of the offense of sodomy and sentenced to serve three years in the penitentiary.

On November 29, 1965, the court, after notice and hearing, entered an order setting aside the suspended sentence granted appellant and sentenced him to serve an indeterminate term of not less than two nor more than five years in the penitentiary in accordance with the original judgment of conviction.

Notice of appeal was duly given by appellant, in open court, from the order setting aside the suspended sentence and, contrary to the state’s contention, is shown to have been duly entered of record in the minutes of the court.

Appellant’s sole contention on appeal is that the court erred in revoking the suspended sentence because the conviction upon which the revocation was predicated had not become final.

With such contention we agree. The record shows that judgment was rendered in Cause #6628 on October 26, 1965. Sentence was pronounced on November 29, 1965, and notice of appeal was given by appellant on that date. This is the judgment of conviction which has this day been affirmed in Cause No. 39,642, Moats v. State, Tex.Cr.App., 402 S.W.2d 921. Such judgment of conviction was not final on November 29, 1965, when the court’s order was entered making final the suspended sentence given appellant in Cause #6627.

Under the provisions of Art. 779, Vernon’s Ann.C.C.P., in force at the time the suspended sentence was made final by the court, it ,was only upon a final conviction of another felony that the court was authorized to take such action. Williams v. State, 122 Tex.Cr.R. 83, 53 S.W.2d 628; Adams v. State, 136 Tex.Cr.R. 331, 125 S.W.2d 583.

We do not agree with the state’s contention that because the court could not set aside the suspended sentence after January 1, 1966, because of the repeal of the suspended sentence law (Arts. 776-781, V. A.C.C.P.) by the enactment of the Code of Criminal Procedure of 1965 (Art. 54.02), the court was authorized on November 22, 1965, to revoke the suspended sentence granted in Cause #6627 before the sodomy conviction in Cause #6628 had become final.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    Kathryn TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 39631.
    Court of Criminal Appeals of Texas.
    May 18, 1966.
    No attorney on appeal.
    Henry Wade, Dist. Atty., James H. Miller, E. John Emmett and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, thirty years.

Joyce Weathersby, age fifteen and daughter of the deceased, testified that she and her mother lived alone; that the appellant telephoned four or five times between 6:45 and 7 p. m. asking for the deceased, but she had not returned from work; that appellant wanted deceased to take her husband to work before 8:30 p. m.; that when the deceased could not reach appellant because her telephone was busy they went to appellant’s house, arriving about 8:30 p. m.; that they knocked on the door of appellant’s upstairs garage apartment and entered when the appellant called from the kitchen for them to “Come in,” and as the deceased walked to the kitchen door the appellant, not saying anything, came from the kitchen and struck the deceased in the chest, but she (Joyce) never saw any object in her hand; that after appellant struck deceased again the appellant said, “You like my husband, don’t you?”, and deceased putting her hands up for protection said, “What is wrong with you?”; that in a struggle which followed they moved toward the door, and the appellant pushed the deceased and Joyce down the stairs and then the appellant pursued the deceased until she fell; that an ambulance was called and the officers soon arrived.

Perry Lee Ray testified that he heard a girl screaming for her mother to come on, and on going to the door he saw a girl and a woman, and when the woman fell the third time he saw the appellant, whom he identified while testifying, come to the door and say, “I killed the so-and-so, she was going to try and jump on me about my own husband.”

Officer Brown testified that when he arrived at the scene about 8 p. m., blood was coming from the left side of the upper part of the chest of the deceased; that he traced blood drops from the body to the stairway of the garage apartment, and on entering the apartment found no one there.

Officer Boles testified that in response to a radio dispatch he went to a certain residence, and when he knocked on the door, the appellant appeared and told him she wanted to give up, that she had killed Georgia Stanfield (deceased) by stabbing her with a paring knife which she handed to him. While testifying, Officer Boles identified a knife exhibited to him as the knife the appellant gave him.

Dr. Rose testified that he performed an autopsy on the body of the deceased, and his examination revealed that she had suffered a stab wound in the left chest two and one-fourth inches deep, and expressed the opinion that the stab wound with a knife in the left side of the chest was the cause of her death.

Testifying in her own behalf, the appellant stated that the deceased had been in her home weekly for several months, and her husband had told her (appellant) that he loved the deceased; that when the deceased entered her apartment she said, “Where is your husband?”, and she (appellant) replied, “You’re not in love with my husband, are you?”, and the deceased answered, “Yes, and I’m going to take him away from you if it’s the last thing I do.” At this time in the front room, the deceased hit the appellant across the head with her purse which staggered the appellant, and she ran into the kitchen with the deceased in pursuit, and she (appellant) got a knife in the kitchen and stabbed the deceased in the chest; that she could have, but does not remember stabbing the deceased again, and next remembers when all three were on the ground at the bottom of the stairway; and that she later telephoned the officers and gave them the knife when they arrived.

There are no formal bills of exception; and no objections to the court’s charge and no requested charges were presented.

The informal bills have been considered and they reveal no error.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DENTON, Chief Justice.

text:
    TEXAS BANK & TRUST COMPANY OF DALLAS, Appellant, v. CUSTOM LEASING, INC., Appellee.
    No. 7604.
    Court of Civil Appeals of Texas. Amarillo.
    April 25, 1966.
    Rehearing Denied May 23, 1966.

      Stigall & Maxfield, Dallas, Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Key, Carr & Clark, Lubbock, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the trial court overruling appellant’s plea of privilege to be sued in Dallas County, the county of its residence. Suit was filed by Custom Leasing, Inc., against George W. Gentry and wife, Alma Gentry, Gentry Construction Company and James E. Lyles, for the amount due under an equipment lease contract, and to recover possession of the equipment so leased. In the alternative, Custom Leasing sued Texas Bank & Trust Company of Dallas on an alleged cause of action based on implied and express warranties contained in a sight draft and attached instruments being held by that bank against some of the equipment leased under the above mentioned lease contract. The attached instruments included a chattel mortgage held by the bank on the equipment which was acquired by the bank prior to the purchase and lease-back arrangement between Custom Leasing and Gentry Construction Company. Plaintiff’s controverting affidavit sought to retain venue in Lubbock County under Sections 5 and 23 of Article 1995, Vernon’s Ann.Civ.St. The trial court, without a jury, overruled the bank’s plea of privilege and it has perfected this appeal.

In April, 1964 James E. Lyles contacted Custom Leasing and represented himself to be an officer of the Gentry Construction Company. They entered into an agreement whereby Gentry Construction Company would sell certain trucks and equipment to Custom Leasing, who would in turn lease the trucks and equipment back to Gentry Construction. Lyles furnished Custom Leasing certain information which included a financial statement of Gentry Construction; a depreciation schedule of the equipment; a tax return and personal financial statement of George W. Gentry, President of the company; together with other pertinent information. Appellant bank had held a mortgage on the equipment for approximately a year prior to this transaction. During Lyles’ negotiations with Custom Leasing, he called the bank to ascertain the amount due on the mortgage. Custom Leasing agreed to pay off this indebtedness and pay over to Custom Leasing the difference between the bank’s indebtedness and the agreed purchase price of the trucks and equipment. On or about April 23, 1964 a bill of sale which appeared on its face to be executed by George W. Gentry as President of Gentry Construction Company and the executed lease agreement were delivered to Custom Leasing by Lyles. Simultaneously with the delivery of these instruments Custom Leasing delivered to Lyles its check in the amount of approximately $5,700.00 payable to Gentry Construction. Lyles then gave Custom Leasing a check for the first month’s lease payment. On April 28, 1964, the president of Custom Leasing examined and accepted a sight draft of appellant bank at the First National Bank of Lubbock, and thereupon delivered a Custom Leasing check to the Lubbock bank in the amount of $19,089.00. The draft contained a chattel mortgage held by the bank, a corporate resolution of Gentry Construction, which is not in evidence; and a Power of Attorney from George W. Gentry, individually, to James E. Lyles. The chattel mortgage had been previously recorded in the proper register of Midland County. When the mortgage was received by Custom Leasing it contained the written notation:

“To the County Clerk
This is your authority to release the within described mortgage.
The Texas Bank & Trust Company.”

and signed by its cashier. In the course of events Gentry Construction became delinquent in the monthly lease payments and this suit was filed.

Appellant and appellee stipulated as to the testimony of Mr. and Mrs. Gentry and Lucille Lacy, an examiner of questioned documents. The stipulation was to the effect Mr. and Mrs. Gentry testified they had not executed any of the instruments involved and purported to have been executed by them; they further testified they had authorized no one to execute any of the instruments in their behalf. Mr. Gentry further testified Lyles was not a Vice-President of Gentry Construction Company on any of the dates material to this case, and that he had no authority to execute the chattel mortgage to appellant bank. It was further stipulated that Mrs. Lacy testified that the purported signatures of Mr. and Mrs. Gentry on the documents were spurious. It was expressly agreed by the parties hereto that they were not stipulating as to the truth of the testimony of these witnesses, but there was no evidence introduced to refute any of such testimony.

It is well settled that in order to sustain venue under Subdivision 23 of Article 1995, it is necessary for a plaintiff to allege and prove: (1) That the defendant bank is a private corporation; (2) That the plaintiff has a cause of action against the defendant; (3) That the cause of action or a part thereof arose in the county of suit. It is undisputed appellant bank is a private corporation. The question is then presented whether or not Custom Leasing has pleaded and proved a cause of action against appellant bank, and whether such cause of action or a part thereof ■ arose in Lubbock County. Appellant pleaded a cause of action based on express and implied warranties attached to the sight draft and by brief appellee further contends it has also pleaded a cause of action of money had and received.

The sight draft, presumedly drawn by appellant bank, contained the following printed statement:

“In payment of transaction, evidenced by papers enclosed herein, covering sale of the following automobile, which is subject to buyer’s acceptance:”

which is followed by the typewritten words:

“Equipment, Chattel Mortgage, Power of Attorney, Release Gentry Construction.”

This was followed by the printed statement:

“I/we hereby claim that I/we have title to said automobile, and authority to transfer same and further warrant that said automobile is free and clear of all liens and encumbrances except as follows : -

No liens or encumbrances were listed. Ap-pellee argues that the appellant bank in effect transferred or assigned the said draft and the enclosed instruments to Custom Leasing; and that the written instruction to the county clerk to release the chattel mortgage was not in fact a release but was for the convenience of Custom Leasing in the event it decided to have the mortgage released. They further reason that the so-called release did not purport to release the maker, Gentry Construction, from any liability whatsoever. They contend that since this transaction was consummated in Lubbock County, venue would properly be held in that county. Reference made on the sight draft of “title to said automobile” is, in our opinion, of no significance. Obviously if any warranty, express or implied, did attach it must apply to the machinery or equipment involved in this transaction. All parties were fully aware of the equipment they were dealing with. We are simply holding the warranty, if any, will not be defeated by reference in the sight draft to “automobile”.

At the time the negotiations were begun between Lyles and Custom Leasing, appellant bank held a chattel mortgage on the Gentry equipment. According to this record there were no other mortgages outstanding. A chattel mortgage is a lien only and title to the property so mortgaged remains in the mortgagor, Gentry Construction. Barron v. San Angelo National Bank (Tex.Civ.App.) 138 S.W. 142 (Writ Ref.). Stephens v. Cox (Tex.Civ.App.) 255 S.W. 241. Barton v. Lary (Tex.Civ.App.) 283 S.W. 920. At the time Lyles closed the sale and lease agreement with Custom Leasing, title to the equipment was in Gentry Construction. This is true whether the chattel mortgage was valid or forged. A mortgagor retains all rights of ownership to the mortgaged property, subject only to the express rights of the mortgagee; such rights of ownership include the right to sell the property, subject to lien retained by the mortgagee. Nunn v. Padgitt Brothers (Tex.Civ.App.) 161 S.W. 921. This right was exercised by the attempted sale of the equipment to Custom Leasing as evidenced by the bill of sale executed on its face by Gentry Construction. This sale did not affect the purported lien held by appellant bank, and at the time Custom Leasing accepted the bank’s sight draft and the enclosed instruments Custom Leasing had apparent title to the equipment. The title had never been in appellant bank. The bank thus had no title to transfer or assign to Custom Leasing.

Upon acceptance of the sight draft and the chattel mortgage with the authority of the County Clerk to release the chattel mortgage and payment of the amount due on the chattel mortgage, Custom Leasing was simply discharging the Gentry Construction debt. This is consistent with the stated intention of the parties. Mr. Martin, one of Custom Leasing’s employees who participated in the negotiation with Lyles testified: “We agreed to pay off a mortgage on this equipment for Gentry Construction Company and lease it back to Gentry Construction Company.” Upon the payment of that debt, the mortgage, being but an incident of the debt, was thereby extinguished. American Type Founder Company v. First National Bank of Teague (Tex.Civ.App.) 156 S.W. 300. A lien in itself is neither property nor a debt, but a right to have satisfaction out of property to secure the payment of the debt; and therefore is not subject to assignment without the debt. Windham v. Citizens National Bank (Tex.Civ.App.) 105 S.W.2d 348 (Error Dis.); 6 Am.Jur.2d, Assignments, Section 26, page 210. There was no debt to transfer or assign and the appellant bank could not transfer its lien which had been extinguished by the payment of the debt. We therefore conclude Custom Leasing failed to prove its pleaded cause of action of express or implied warranty attached to the sight draft or the instruments it contained. It therefore has failed to prove a cause of action or a part thereof arose in Lubbock County.

Appellee also relies on Subsection 5 of Article 1995 to retain venue in Lubbock County. The contention is its cause of action is based upon a contract in the form of the sight draft which expressly provides that it is payable only through the First National Bank of Lubbock, Texas. Appellee, by its petition, sought to obtain a refund of the money it paid over to appellant bank. In support of its claim for the return of the money it relies on the sight draft and its contents to show a breach of an express or an implied warranty. The fact the draft was accepted and paid in Lubbock County becomes immaterial in view of the fact the primary obligation sought to be enforced is the refund of money paid. Under Subsection 5 the controlling fact is that the particular obligation sought to be enforced is required by contract to be performed in a particular county expressly named. Traweek v. Ake (Tex.Civ.App.) 280 S.W.2d 297. Johnston v. Bracht (Tex.Civ.App.) 237 S.W.2d 364. May v. Perkin (Tex.Civ.App.) 227 S.W.2d 393. McKinney v. Moon (Tex.Civ.App.) 173 S.W.2d 217. Since the asserted obligation to refund the money was not required under the terms of any of the instruments relied upon to be performed in Lubbock County, the exception under Section 5 is not applicable to maintain venue in that county.

We think the same reasoning and conclusion must be reached in answer to plaintiff’s contention in regard to its cause of action of money had and received. In order to support this cause of action, reliance is had upon the same instruments. Under this contention the particular obligation sought to be enforced is also refund of the money paid. The authorities cited above are applicable to this asserted cause of action.

The order overruling appellant’s plea of privilege is reversed and the cause is ordered transferred to Dallas County.


author: FRASER, Chief Justice.

text:
    Roland I. PERUSSE, Appellant, v. Patricia Godley PERUSSE, Appellee.
    No. 5826.
    Court of Civil Appeals of Texas. El Paso.
    April 27, 1966.
    Rehearing Denied May 18, 1966.
    Irion & Rash, El Paso, for appellant.
    Collins, Langford, Pine & Woodard and John A. Langford, El Paso, for appellee.
   FRASER, Chief Justice.

This is an appeal from an order of the District Court of El Paso County, Texas granting and sustaining a plea in abatement. The question before this court is whether or not the appellant, Roland I. Perusse, is entitled to a trial in the District Court below to seek and obtain a divorce from the appellee, Patricia Godley Perusse.

The appellant is a resident of El Paso County, Texas, and is employed as a professor of political science at Texas Western College. He and the appellee were married on February 19, 1944, in Bayside, New York. There were three children born of the marriage, only two of whom are subject to the jurisdiction of the Texas court because of their age. Nancy Jean Perusse is a female child, now ten years of age, and Dawn Louise Perusse is a female child, now fourteen years of age. On September 3, 1964, in the State of Maryland, the parties voluntarily agreed to separate as husband and wife. Pursuant to this agreement, the appellant had the custody and control of Nancy and the appellee of Dawn.

Subsequently, appellant filed his original petition in the court below on July 6, 1965. Therein he sought a divorce from appellee pursuant to the provisions of Art. 4629(1), Vernon’s Ann.Tex.St., as well as custody of Nancy. Non-resident citation was issued by the clerk of the court on July 23, 1965, and service was obtained on the appellee in Maryland on August 9, 1965. On July 22, 1965 the appellee instituted a divorce proceeding in the Circuit Court for Montgomery County, Maryland, sitting as a Court of Equity. This action sought a divorce “a mensa et thoro” pursuant to the provisions of Art. 16, section 25 of the Annotated Code of Maryland 1957, and also prayed for the custody of Dawn. The appellee filed her plea in abatement on or about September 3, 1965, and sought to have the Texas divorce proceeding abated because of the alleged Maryland divorce proceeding.

Thereafter, appellant Perusse filed an amended original petition in the court below on September 8, 1965, which amplified his original petition by also seeking custody of Dawn. Non-resident citation was subsequently issued and served on the appellee in Maryland. Thereafter, the appellee filed an amended petition in the Maryland court on September 20, 1965, also seeking custody of both minor children.

On November 2, 1965, appellee filed an “Amended Plea in Abatement” in the court below, which proceeded to a hearing on November 10, 1965. Therein, the trial court ordered that this cause be abated, “provided that the Court is furnished with an authenticated copy of the amended or other pleadings wherein an absolute divorce is prayed for in the cause now pending in the State of Maryland, wherein the Defendant is Plaintiff and the Plaintiff herein is Defendant; and it is further Ordered that no order sustaining said Plea should be entered of record until such time as said authenticated copy is furnished to the Court.”

The record does not show that the proof required above by the court’s order was ever furnished. Appellant then filed his “Motion for Rehearing” asking that the plea in abatement be denied or modified by the court so that it would be final in nature, rather than interlocutory. The court heard this motion for rehearing on December 10th. We think it advisable to include some of the wording of the first “Order” of the trial court with reference to the plea in abatement. The court stated as follows:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that said Plea in Abatement be, and is hereby sustained, provided that the Court is furnished with an authenticated copy of the amended or other pleadings wherein an absolute divorce is prayed for in the cause now pending in the State of Maryland, wherein the Defendant is Plaintiff and the Plaintiff is Defendant; and it is FURTHER ORDERED that no order sustaining said Plea should be entered of record until such time as said authenticated copy is furnished to the Court.”

This is the last paragraph of the Order and is dated November 10, 1965 and signed by the trial judge. After this order was entered, plaintiff Roland I. Perusse filed his motion for rehearing, and on December 10, 1965 the trial court issued another order in which he stated that the motion (presumably the motion for rehearing) should be granted. The court then goes on to say that it is ordered, adjudged and decreed that the plea in abatement heretofore filed herein on behalf of the defendant, Patricia Godley Perusse, “is hereby in all things granted”; and that the cause pending in El Paso County “is hereby abated” pending outcome of the divorce action between the same parties in Montgomery County, Maryland, in cause numbered 30,292.

We shall treat appellant’s four points together, for the sake of clarity and brevity. These points generally complain of the court’s action because appellant’s original suit for divorce was filed before any suit was filed in Maryland; that the two actions, one in Texas and the other in Maryland, are not the same in nature or in the relief prayed for; and lastly, that appellant, by filing his amended petition in September, 1965, complied with the residential requirements for this type of action. We believe that appellant’s position and his points of error must be sustained for the following reasons.

The record shows that at the time appellant filed his amended petition, which complied then with the residential requirements for a divorce suit in Texas, the appel-lee had filed for a divorce “a mensa et thoro” in Maryland which, according to the references in the record here, is actually, viewed from a Texas standpoint, a legal separation and not an absolute divorce. For example, neither party can re-marry, and for other purposes, such as adultery, both parties are considered to be still married. Therefore, the plea in abatement filed attempted to abate a suit in Texas which was for a complete and final divorce, on the basis that a suit for legal separation had been filed in Maryland. It has long been held that a cause may be abated only where both actions or causes of action are the same and ask for the same relief. 1 C.J.S. Abatement and Revival § 40; 1 Tex.Jur.2d, Abatement and Revival, § 34; Payton v. Hurst Eye, Ear, Nose & Throat Hosp. & Clinic (Tex.Civ.App.), 318 S.W.2d 726 (reh. den.); Hatten v. City of Houston (Tex.Civ.App.), 373 S.W.2d 525 (err. ref., n. r. e.). A full and complete divorce comparable to that sought by appellant in Texas is described by the Maryland laws as a divorce “a vinculo matrimonii”. It is clear, therefore, that at the time the court here heard the matters involved, and issued its two orders, that the appellee in the Maryland court had not filed or asked for anything more than a “bed and board” legal separation. This, in our opinion, would not suffice to abate the complete divorce decree asked for by appellant. This matter is well set out in 31 A.L.R.2d 442, which states the following at page 447:

“On the other hand, the pendency of action between the same parties for separation on the ground of abandonment and nonsupport was held not to bar an action for absolute divorce in Hall v. Hall (1912) 150 AppDiv 688, 135 NYS 741. The decision was rested on the ground, among others, that ‘the two actions are brought on different grounds for different relief,’ the court relying upon Conrad v. Conrad (1908) 124 AppDiv 780, 109 NYS 387, where it was held that it was not proper to unite in the same complaint a cause of action for absolute divorce and one for separation on the ground of abandoment.
“That an action for an absolute and one for a limited divorce are based on different causes of action was also intimated in Cook v. Cook (1912) 159 NC 46, 74 SE 639, 40 LRA NS 83, Ann Cas 1914A 1137, infra, § 4, under heading ‘Where defendant in first action has not asked for affirmative relief.’ ”

Therefore, it seems clear to us, and we so hold, that at the time the court signed its final order abating the suit in Texas (the date of which was December 10, 1965), there was no suit filed anywhere legally comparable to the one pending in El Paso County.

Also, it must be pointed out that the court’s first order expressly stipulated that the plea would be granted only if documentary evidence were presented to the court showing that appellee had a cause pending in Maryland wherein she was asking for an absolute divorce. This first order, as stated here, further says that no order sustaining such plea (plea in abatement) should be entered until this documentary evidence had been filed and presented in the District Court of El Paso County, Texas. We feel that it is important to .point out that after this first order, the appellant filed a motion for rehearing and, in the second order dated December 10, 1965, the trial court specifically says that he is hearing a motion for rehearing; but then he goes to state that appellee’s plea in abatement is in all things granted and the suit filed in El Paso County, Texas shall be abated until the disposition of the suit filed in Maryland. It is not clear to us on what grounds the court granted this second order without the requirements set forth in the first order having been complied with, especially in view of the fact that the second order recites that it is in answer to a motion for rehearing dealing with the original plea in abatement. In other words, the second order does not appear to be an independent action or a stay or plea in abatement of itself, but is based, by the court’s own language, on a motion for the rehearing of matters pertaining to the first order granted November 10th.

Lastly, the record shows that the Maryland court, in a suit bearing a different number (31,360) than the original suit filed by appellee (No. 30,292), recites that such court did, on March 8, 1966, sign a Decree of Divorce a mensa et thoro, and dealt with the custody of the children, including an order for custody and injunction. The Maryland court then issued a show-cause order requiring the appellant to show cause why the appellee should not be given permanent control and custody of all three children. Then we find another properly authenticated copy of an order by the same court bearing the same number — to-wit, 31,360 — which is described as an Order of Publication, and states that the “object of this suit Is to procure a decree of divorce a vinculo matrimonii for the plaintiff, Patricia G. Perusse, from the defendant, Roland I. Perusse, and for permanent care and custody of the two minor children.” So it is obvious that appellee did not file or petition for a complete divorce, comparable to the one filed for by appellant here in El Paso County, until the month of March, 1966. Therefore, the two orders or pleas in abatement, or whatever they may be, were issued by the El Paso court long before appellee had filed a similar suit in the State of Maryland. For that reason, the justifications of comity and abatement, in our opinion, do not here exist.

We should like to point out that the issue of residency is not jurisdictional, but is a fact matter to be determined by the trial court. Bomar v. Bomar (Tex.Civ.App.), 229 S.W.2d 859; Earhart v. Earhart (Tex.Civ.App.), 358 S.W.2d 878. It has also been held that the time of filing the amended petition should be considered as “the filing of the suit” within the purview of the divorce statutes. Bateman v. Bateman (Tex.Civ.App.), 188 S.W.2d 866; Whitsett v. Whitsett (Tex.Civ.App.), 201 S.W.2d 114. In the case before us, it is clear that when appellant had filed his amended petition in September of 1965, he had complied with and fulfilled the residence provisions of the Texas divorce statutes.

Appellee claims that the orders here are not invalid because they are actually merely a stay of proceeding, but in her brief she refers to the transcript wherein it is stated by the court that the “Plea in Abatement be sustained”. We do not feel that appellee’s contention that this is an interlocutory order can be sustained. Examination of the record reveals that if the Maryland court proceeds with its proposed complete divorce (a vinculo), there will be nothing left to pass on in El Paso County; and so the only interlocutory feature would be that appellant in El Paso County would simply have to wait until his rights had all been disposed of in Maryland in a matter filed some four months after appellant had questioned and appealed from the orders in El Paso County, and some six months after he had filed a similar suit in El Paso County, Texas. It must be remembered that a pleading is what it is, and not always what the pleader may say or interpret it to be; and here we see nothing but finality for the rights of the appellant if appellee is permitted to go ahead with her court action in Maryland. Appellee, of course, argues that appellant did not have a valid suit for divorce before appellee filed her suit in Maryland. We do not believe this contention to be correct because, as stated above in Bateman v. Bateman (supra), it has been held that the time of filing the amended petition is to be considered as the time of “the filing of the suit.” In any event, the suit filed by ap-pellee in Maryland was not the same type of action that the appellant was seeking to maintain in El Paso County, Texas, and was not proper justification to abate or stay the Texas suit.

In conclusion, we find that the appellant had on file in September, 1965 a cause asking for complete divorce and which, at that time, fulfilled all residence requirements set up by the State of Texas. At the time both orders were filed by the District Court of El Paso County, appellee had on file only a suit for legal separation. It seems useless to argue that these are the same types of action or, as the cases hold, “the same cause”. The relief just simply is not the same in each case. Furthermore, the wording of the orders executed or decreed by the District Court of El Paso County clearly sets forth that the second order was in response to a motion for rehearing, and was not a new or separate plea in abatement. The first order is in reference to the plea in abatement, and it requires authenticated documentation, that, as we have pointed out above, appellee simply did not produce. Therefore, we feel that the trial court was not justified in granting either order, and his discretion therein would not be sufficient to warrant him to execute the orders as he did.

Appellant’s points are therefore sustained, and we hold that the appellant is entitled to the relief he asks for.

The two orders of the District Court of El Paso County, Texas, dated November 10 and December 10, 1965, respectively, are therefore vacated and held for nought, and the holdings of the trial court therein are accordingly reversed and rendered in accordance with this opinion.


text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Otis D. COGGINS, Jr., et al., Appellees.
    No. 5784.
    Court of Civil Appeals of Texas. El Paso.
    April 27, 1966.
    Rehearing Denied May 18, 1966.

      Waggoner Carr, Atty. Gen., Austin, Brady S. Coleman, Howard M. Fender, Hawthorne Phillips, T. B. Wright and Douglas Chilton, Asst. Attys. Gen., Austin, for appellant.
    Bruce C. Sutton, Alpine, for appellees.
   FRASER, Chief Justice.

The Attorney General for the State of Texas has filed his Appellant’s Motion for Rehearing in the above styled and numbered case. Upon consideration of this Motion and other authorities, we have reached the conclusion that our former opinion was incorrect. Therefore, the former opinion in this case is withdrawn and the following opinion is substituted therefor:

OPINION

This is an appeal from the judgment of the District Court of Brewster County, Texas, setting aside an Order of the Assistant Administrator of the Texas Liquor Control Board, dated January 8, 1965, suspending for 30 days the Package Store Permit No. 33951, the Local Cartage Permit No. 34240, and the Beer Retail Off-Premises License No. 188800, issued to Otis D. Coggins, Jr. and Kenneth Stucke, C & S Package Store, 706 East Holland Avenue, City of Alpine, County of Brewster, State of Texas. Appellant, by its point of appeal has attacked the ruling of the District Court in its setting aside of the above stated Order.

It is undisputed, and so stipulated, that on October 31, 1964, at the C & S Package Store, Alpine, Texas, Mrs. Otis D. Coggins sold beer to a person named Howard David Burnett, a person under the age of 21 years. The appellees here have never denied the sale or challenged the age of the purchaser, but both parties appear to brief this matter on the question of whether Mrs. Coggins “knowingly” sold the beer to this minor, and/or whether there was substantial evidence as to such matter before the Assistant Administrator in Austin, Texas to justify the Order of the Assistant Administrator as set forth above.

The record reveals that the investigator for the Texas Liquor Control Board was seated in his car across the street from the package store, and that Mrs. Coggins was aware of the fact and knew what his business was. This particular package store has a drive-in window, and it appears that this young man drove up in his car pulling a trailer, at approximately 5:30 P.M., October 31, 1964, and at the time was returning from a rodeo or a practice for one, and was, as the evidence reveals, somewhat dirty from his previous activities. This young man is six feet three inches in height, married, and at the time of the purchase was wearing a dark hat.

It is apparent from the record that the investigator, Mr. Cherry, as well as the appellees, testified in the District Court at Alpine, Texas. The testimony of the investigator was to the effect that the boy looked to him to be much younger than 21, and for that reason he followed him after he made the purchase, and the boy admitted that he was 18, and it appears that he hadn’t been 18 very long. Mrs. Coggins, who made the sale, said that the boy drove up about 5:30 in the evening in an automobile, and that at the time he was wearing a dark hat. It appears that he had just come from the rodeo and was probably somewhat dirty. Mrs. Coggins further testified that he looked to her to be about 22 or 23 years old, and for that reason she did not ask him for any evidence of his age or identification of any kind. It is obvious, therefore, that Mr. Cherry thought the boy looked under 21, and Mrs. Coggins thought he looked over 21.

In as much as this is a substantial evidence case, we must judge the matter of the Board’s action on the basis of evidence admitted in the judicial proceeding. The burden here is on the holder of the license to prove that the Texas Liquor Control Board acted arbitrarily or capriciously in suspending the license of the package store for 30 days. It has been judicially held that whether the action of the agency is supported by substantial evidence must be determined by the court from a consideration of the entire record in the case, as that record has been made in the trial court. The test is not whether the evidence admitted preponderates against the administrative decision, nor whether there is merely some evidence to support the decision. Rather the test is whether the administrative decision can find reasonable support in substantial evidence, and this is determined by the evidence presented to the judicial tribunal. Texas State Board of Reg. for Pro. Eng. v. Trimble, 388 S.W.2d 331 (Tex.Civ.App. wr. ref.); Board of Firemen’s Relief & Retirement F. Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965 (1951); Texas Co. v. Texas Employment Commission, 261 S.W.2d 178 (Tex.Civ.App. ref., n. r. e.). In the case of Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, supra, it is stated:

“The party aggrieved by the administrative decision is not entitled to a trial de novo in court but must assume the burden of satisfying the courts that the administrative decision is illegal, arbitrary, or capricious; that is, that it is not reasonably supported by substantial evidence.”

See also Texas State Board of Medical Examiners v. Scott, 377 S.W.2d 104 (Aus.Civ.App., Feb. 1964), where the cause was reversed and remanded for new trial because the trial court had submitted it to a jury under the preponderance of evidence rule.

Here, it is stated in the appellant’s brief as follows: “The only question before this Court, then, is whether beer was sold ‘knowingly’. The Appellant submits that it was.” On the basis of the facts recited above, it is clear that Mrs. Coggins knew Mr. Cherry, the investigator, and saw him sitting in his car just across the street, Also, the record shows that this establishment had had one three-day suspension some months before. We do not know what was in the affidavit which was the evidence presented before the Liquor Control Board, but, judging this case on the basis of what was presented before áhe District Court, we find no evidence that Mrs. Coggins “knowingly” sold beer to a minor. We believe, as the trial court must have believed, that under no circumstances would Mrs. Coggins (knowing that the inspector for the Liquor Control Board was sitting in his car across the street, obviously watching her place of business) have “knowingly” sold beer to a minor. We do not believe that reasonable minds could differ as to this conclusion. It approaches the unbelievable that Mrs. Coggins would have “knowingly” violated the law by selling beer to a minor as the situation existed at the time of the sale. The extent of the evidence is that the boy was a minor and that the agent thought he looked under 21, but we do not find any evidence showing that Mrs. Coggins thought or should have thought that he was under 21; in other words, that she “knowingly” sold beer to a person under 21 years of age.

The Order of the Texas Liquor Control Board is therefore canceled, and the decision of the trial court is in all things affirmed.


author: MURRAY, Chief Justice.

text:
    Charles Vance PFEIFFER et ux., Appellants, v. Bob Ray BISSETT et al., Appellees.
    No. 14469.
    Court of Civil Appeals of Texas. San Antonio.
    May 4, 1966.

      Sidney P. Chandler, Corpus Christi, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, for appellees.
   MURRAY, Chief Justice.

This is a divorce suit instituted by Bob Ray Bissett in the District Court of Jim Wells County, Texas, against his wife, Helen Elaine Bissett, seeking a divorce on the grounds of cruel treatment. The defendant filed an original answer containing a general denial; thereafter Anna Lou Pfeiffer and Charles Vance Pfeiffer, the mother and stepfather of Mrs. Bissett, filed a petition of intervention in the cause. The plaintiff filed a motion to strike the intervention, and the trial court after hearing the motion granted it and struck the intervention from the suit.

On October 4, 1965, the court heard the divorce suit and granted plaintiff a divorce from defendant, awarded custody of their one-year-old son, David Ray Bissett, to the mother and ordered the father to pay $25 a month for the support of the child. Charles Vance Pfeiffer and Anna Lou Pfeiffer gave notice of appeal to this Court.

Appellants’ first point of error is as follows:

“The judgment entered in this cause is void because the Court did not have jurisdiction over the person of the Defendant, Helen Elaine Bissett.”

It is appellants’ contention that inasmuch as no citation was issued and served on defendant, and there was no waiver of service as provided 'for in Rule 119, T.R. C.P., the court had no jurisdiction over the defendant and the judgment is void. We overrule this contention. The defendant filed an answer signed by an attorney of her own choice, Hon. Ted Anderson of Corpus Christi, Texas. This answer constituted an appearance in the case by the defendant and eliminated the necessity of issuing and serving a citation on the defendant. Rule 120, T.R.C.P.; Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957); Clagett v. Neugebauer, Tex.Civ.App., 376 S.W.2d 768; White v. Zoning Bd. of Adjustment of Arlington, Tex.Civ.App., 363 S.W.2d 955; Hart v. Hunter, 52 Tex.Civ.App. 75, 114 S.W. 882.

Appellants’ second point is as follows:

“Obviously the Interveners have a jus-ticiable interest in the welfare of the grandchild David Ray Bissett and it was error to dismiss and strike the petition of intervention from this case.”

As a general rule the husband and wife are the only proper parties to a divorce suit. 20 Tex.Jur.2d, § 78. The mother and father of the wife who are interested in the welfare of the child may intervene in the divorce case, subject to having their intervention stricken on motion of the husband for good cause shown. 44 Tex.Jur.2d, § 41, p. 192. Before this case can be reversed because the petition for intervention was struck, it must be shown under the provisions of Rule 434, T. R.C.P., that the rights of interveners were prejudiced. Interveners pled, among other things, that their daughter, Helen Elaine Bissett, was a proper person to have the custody of her child, and asked the court to award the custody of the child to her or to some other proper person. They further asked the court to award at least $100 a month for the care and support of the child, and here complain because the award was only $25 a month, which was to be paid to the wife, who was given custody of the child. Under these facts the inter-veners below have failed to show that they have been injured in any way by the striking of their petition for intervention.

Interveners here contend that the evidence was insufficient to justify the granting of a decree of divorce to the husband. As far as this record shows, both the husband and wife were satisfied with the decree of divorce and neither gave notice of appeal. Interveners have no justi-ciable interest in this divorce that gives them a right to ask that the judgment be set aside for insufficiency of evidence. In fact, the interveners would have no authority and no right to give notice of appeal from that part of the judgment which granted the divorce.

The trial judge did not abuse his discretion in striking the petition for intervention, and the interveners have failed to show that they have suffered any injury as a result of their petition having been stricken by the trial judge.

The judgment granting the divorce, awarding the custody of the child to its mother, and ordering the husband to pay $25 per month for the support of the child is affirmed.