text:
    McCoy WATSON, Appellant, v. STATE of Texas, Appellee.
    No. 34018.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, 3 years.

The disposition hereof makes a summary of the facts unnecessary.

The state confesses reversible error in the argument of the prosecuting attorney before the jury wherein he said:

“And you know that the fact of human error is more prevalent in a live witness that it is * * * from other evidence that might be admitted into a lawsuit, and from facts and circumstances that can not be refuted and have not been refuted.
“But facts and circumstances of this type and character leave no doubt whatsoever as to the identity. That is not something that some one can guess about, thats something that is a matter of fact, uncontradicted in this record, that those were the tracks of McCoy Watson.
“If there is any evidence at all that' shows anything other than McCoy Watson’s guilt, it has not been produced in evidence on this case.”

The bill certifies that the appellant did not testify, and that he was the only person who could have testified to the above quoted matter which was argued by the prosecuting attorney before the jury.

Timely and proper objections to such argument were overruled by the court, as was appellant’s motion to declare a mistrial, and to such actions of the court he reserved his exceptions.

An examination of the record confirms the confession of reversible error by the able state’s attorney that the argument complained of constituted a reference to appellant’s failure to testify and violated the mandatory provisions of Art. 710, Vernon’s Ann.C.C.P. Griggs v. State, 166 Tex.Cr.R. 56, 311 S.W.2d 418.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Artie Ancil BRATTON, Appellant, v. STATE of Texas, Appellee.
    No. 33797.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    Clair F. Achenbach, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., George Milner, Jr., Pat McDowell, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated; the punishment, 30 days in jail and a fine of $150.

There are no bills of exception and no objections to the charge.

Officers Douglas L. Jackson and C. A. Knowles testified that shortly after midnight appellant ran a red light at an intersection where they were stopped, and almost hit the squad car; that they overtook appellant; that he had a very slurred speech and was very unsteady on his feet; his eyes were watery and bloodshot; there was a strong odor of alcohol on his breath and he said he had been drinking. The officers expressed the opinion that appellant was “very intoxicated”.

Sergeant Holcomb was contacted and an intoximeter test numbered 443 was taken with appellant’s consent.

Dr. Mason, Director of the Dallas City-County Criminal Investigation Laboratory, testified without objection that an analysis run at the Laboratory revealed that intoxi-meter test No. 443, identified also by information on the slip sealing it with the name of appellant and of Officers Holcomb, Jackson and Knowles, showed .208 percent alcohol concentration in the blood. He further testified that any individual having a concentration of alcohol in excess of .15 percent would be intoxicated, and that this had been lowered to .10 percent by more recent study and tests.

Appellant testified that he consumed five twelve ounce bottles of beer between 8:30 and 11:30 P.M. prior to his arrest, but denied that he was intoxicated. His companion during those hours corroborated him.

The jury resolved the issue against appellant and the evidence is sufficient to sustain their findings.

By brief and oral argument appellant contends that there was fundamental error in regard to the proof regarding the intoximeter test. In the absence of objection to the admission of such evidence, there is nothing before us in this regard.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    George Washington HENAGE, Appellant, v. STATE of Texas, Appellee.
    No. 33658.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    George T. Thomas, Big Springs, for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   WOODLEY, Presiding Judge.

The indictment alleged the burglary of a. coin operated machine with intent to steal personal property therein. (Art. 1402a„ Vernon’s Ann.P.C.) The second count alleged the theft of a coin operated pay telephone of the value of over $50.

Appellant and his court appointed counsel waived the time allowed by statute (Art. 494, Vernon’s Ann.C.C.P.) to prepare for trial, and with the consent of the attorney representing the state, and the approval of the trial judge, waived a jury trial and pleaded guilty to count one of the indictment.

After the evidence was heard, the sufficiency of which is not questioned and which included appellant’s confession, counsel for the state recommended a punishment of 5 years and appellant’s counsel stated there was no objection. The trial judge then found appellant guilty and assessed his punishment at 5 years in the penitentiary.

Appellant waived time for filing motion for new trial and was sentenced the same •day.

Notice of appeal was thereafter given and ¡recognizance on appeal entered into.

The sole ground upon which reversal is ■sought is the contention that appellant was not admonished by the court of the consequence of his plea of guilty as required by Art. SOI, C.C.P.

The judgment recites that the “defendant was admonished by the court of the consequences of said plea, and said defendant persisted in pleading guilty.”

It is appellant’s contention that the record clearly discloses that the defendant was not “admonished” of the “consequences” of said plea.

The statement of facts reveals that the trial judge ascertained from the defendant that he realized that the offense was one for which he could be sent to the penitentiary, •and informed the defendant that the maximum punishment was “at least several years in the penitentiary” and the defendant said he understood this.

Appellant relies upon the absence of any showing in the statement of facts that the court informed him that the punishment for the offense charged in the first count of the indictment was a fine of not less that $100 nor more than $1000, or confinement in the County Jail for not less than 10 days nor more than 2 years, or both fine and imprisonment, or confinement in the State Penitentiary for a period of not more than 5 years; nor does the statement of facts show that •appellant was admonished that the punishment for the offense charged in the second count of the indictment was from 2 to 10 years in the penitentiary.

There are no bills of exception.

We are aware of no statute or decision requiring that the statement of facts show the admonition given to the defendant as to the consequences of his plea of guilty. There is no certification that all the court said in admonishing the defendant appears in the statement of facts herein.

Under these facts we are unable to agree with appellant’s contention that the record shows that he was not admonished as the judgment recites he was.

In Braggs v. State, Tex.Cr.App., 334 S.W.2d 793, 794, cited by appellant, Judge Morrison, in his opinion reversing the conviction, stated: “In accepting appellant’s plea, the court did so in practically the same words as are set forth in our opinion in Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779, and which we held failed to properly admonish the accused of the consequences of his plea as required by Article 501, Vernon’s Ann.C.C.P.”

Judge Davidson concurred in the reversal, but upon -other grounds.

The writer, dissenting, said: “As to appellant being admonished by the court of the consequences of her plea of guilty, the judgment recites that this was done and there is no bill of exception showing the contrary, as there was in Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779.”

It follows that the case of Braggs v. State, supra, may not be construed as holding contrary to this opinion. If so, it is to that extent overruled.

The judgment is affirmed.

MORRISON, Judge

(concurring).

I agree to the affirmance of the conviction because I have concluded that the admonition given was sufficient. I do not, however, agree to the overruling of Braggs v. State, supra, and do not think it is necessary to do so.


author: MORRISON, Judge.

text:
    Adolfo GUTIERREZ, Appellant, v. STATE of Texas, Appellee.
    No. 33559.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    James Haynes, Jr., Laredo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is defrauding with a worthless check; the punishment, 2 years.

All prior opinions are withdrawn.

In view of our disposition of this case, a recitation of the facts is not deemed necessary.

The indictment alleged that by the delivery of the check set forth in the indictment with the intent to defraud, appellant obtained certain property from the injured, party. It further alleged that appellant fraudulently represented to the injured party that the check was good, which representation was false, and that the injured, party at the time of its acceptance believed it was good, and relied upon and was deceived by said deceitful pretenses and fraudulent representations, and by virtue thereof she parted with the possession and. title of said property.

The court, in his charge, made appellant’s^ guilt depend upon the jury’s finding that lié delivered the check with the intent to defraud and thereby acquired the property described in the indictment, knowing that he did not have sufficient funds in said bank to pay the check.

In the charge, the court did not require the jury to find, as the indictment alleged, that appellant made representations to the injured party that the check was good, or that the injured party believed and relied ’ upon said representations, and that by virtue thereof she parted with the possession and title of said property.

In Goodwin v. State, 167 Tex.Cr.R. 485, 320 S.W.2d 852, 853, the conviction was for the same offense as in the instant case. On appeal, it was presented on a similar record. There, it was held:

“Wherever descriptive averments are made in an indictment, whether necessary or not, the proof must meet them as well as all necessary allegations, by corresponding evidence. Kahanek v. State, 83 Tex.Cr.R. 19, 201 S.W. 994; Malone v. State, 135 Tex.Cr.R. 169, 117 S.W.2d 779.
“In swindling cases the false pretense must be proved as alleged. If a different pretense from that alleged was the means by which the property was acquired there is a variance. King v. State, 158 Tex.Cr.R. 98, 253 S.W.2d 434; Branch’s Ann.P.C., 2nd Ed., Sec. 2827.
“ * * * The indictment having alleged that an oral false representation by appellant was made and relied upon, the State was required to prove such descriptive averment in order to convict.”

The grounds for the disposition in Goodwin are here controlling.

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


author: McDonald, judge.

text:
    Ex parte Nina Ruth Elmore MORRIS.
    No. 34127.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Jerry Murad, Fort Worth, for relator.
    Lambert, Russell & Alley, Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for respondent.
   McDonald, judge.

This original habeas corpus proceeding is a sequel to Ex parte Morris, Tex., 342 S.W.2d 558, and a sequel to Ex parte Morris, Supreme Court of Texas, 349 S.W.2d 99.

On July 10, 1959, in Cause No. 13140-C, 153rd Judicial District of Tarrant County, Texas, Leonard’s, a Fort Worth department store, filed suit against James A. Elmore and Nina Ruth Elmore Morris for debt on a promissory note and for foreclosure of a chattel mortgage on certain personal property, including a deep freeze. Nina Ruth Elmore Morris, relator, and her former husband had been held in contempt for failure to deliver the deep freeze and the other personal property, to the sheriff, as previously directed by the 153rd District Court. At the contempt hearing held on August 16, 1960, relator testified that she did not know where the property was located and had not had the same in her possession for almost two years. The Supreme Court discharged both parties on the ground that there was no evidence to authorize a finding that they were in possession of the property and able to comply with the delivery order. Ex parte Morris, 342 S.W.2d 558.

While that proceeding was pending before the Supreme Court, whose opinion which was rendered on February 1, 1961, discharged relator in the above styled case, and within the fifteen-day period provided under the Rules of Civil Procedure to request a motion for rehearing, the District Judge orally ordered a member of the Fort Worth bar, Alford J. Russell, as an officer of that court, who is also shown by the record to be attorney for the Leonard’s Department Store of Fort Worth, the plaintiff in the original suit for possession of the deep freeze, to conduct an investigation and initiate an inquiry into all of the facts pertaining to this cause and the conduct of the parties and the testimony of the parties therein.

An affidavit was filed by such attorney in the District Court on January 26, 1961, charging that relator had given false testimony at the former hearing, held on August 16, 1960, and relator was cited to appear and show cause why she should not be held in contempt for perjury, committed by her at the previous hearing. The evidence introduced at the ensuing hearing on February 13, 1961, disclosed that relator stored the deep freeze with two friends in 1959. It remained in their possession until removed by relator at their request after they read newspaper accounts of the first contempt hearing. The relator did not testify, but through her attorney admitted in effect that her testimony given at the prior hearing was false, and she subsequently surrendered the deep freeze and other property in accordance with the earlier court order. After hearing the evidence, the respondent Honorable Harold Craik, Judge of the 153rd District Court of Tarrant County, Texas, found the relator guilty of contempt of court for having knowingly given false, perjured testimony under oath before the court in the hearing held on August 16, 1960, the court stating at the time that it would enter an order as to the punishment at a later date, within a day or two. At the conclusion of the hearing, the respondent orally ordered Alford J. Russell to prepare a formal brief and motion for rehearing to the Supreme Court in Ex parte Morris, 342 S.W.2d 558, together with a copy of the statement of facts. The Supreme Court on March 1, 1961, overruled the motion for rehearing.

Thereafter, on May 5, 1961, the court rendered its judgment of contempt and entered it on May 26, 1961, against relator, said judgment reciting that relator is held in contempt for giving the false perjured testimony, and quoting:

“It is further ordered that the sum of $2500.00 being the investigation and processing expense of Alford J. Russell, an officer of this Court appointed for such purpose is hereby assessed as court costs against the defendant, Nina Ruth Elmore Morris, and further all costs of court incurred after the date of the judgment rendered May 5, 1960, and signed May 11, 1960, are also assessed against the defendant, Nina Ruth Elmore Morris, as court costs and as punishment for her conduct as aforementioned; it is ordered that the said Nina Ruth Elmore Morris is hereby fined $100.00 and court costs as aforementioned and sentenced to serve 3 days in jail for such contempt. It is further ordered that the said Nina Ruth Elmore Morris shall remain in jail from day to day and month to month thereafter until she shall pay the $100.-00 fine and all costs of the court as aforesaid and the said Nina Ruth El-more Morris shall not be released from jail until she shall have purged herself completely by payment of the $100.00 fine and all costs of court and by serving 3 days in jail.”

Relator was confined to jail on October 9, 1961, by the order of commitment on May 26, 1961, after relator had her second application to the Supreme Court rejected. The Supreme Court’s ruling was that its original habeas corpus jurisdiction was limited (by Article 1737, Vernon’s Ann.Rev. Civ.St.) to cases in which a person has been confined for violating an order, judgment or decree in a civil case, the court stating that it was without power to inquire into the legality of restraint for some other reason.

Relator urges the following contentions as error:

1. The District Court does not have the power to imprison for debt in the nature of a contempt proceeding.

2. The court (meaning the district court) does not have the power to attach court costs in this type of case and imprison for debt for failure to pay the same.

3. Imprisonment for debt is in violation of the Constitution of the State of Texas, Article I, Section 18.

4. The Court has failed to use the remedies provided by law.

5. The subject matter in controversy before this Court is res judicata.

It is respondent’s contention that this Court should not accept jurisdiction of this case, and if it does accept jurisdiction that our acceptance should be limited to the question of whether or not the fine of $100.00 and 3 days in jail is proper under the facts. Respondent contends that we should not go into the question of whether or not the assessment of costs and attorney’s fees are proper because such costs and attorney’s fees accrued as a direct result of relator’s refusal to obey the trial court’s order to deliver the merchandise; respondent further contends that this phase of the case with reference to attorney’s fees and costs is within the provisions of Article 1737, V.A.R.C.S., and that the Supreme Court has jurisdiction where a person is confined for violating an order in a civil case. It is respondent’s position or contention that since the Supreme Court dismissed relator’s application for writ of habeas corpus at the previous hearing, 349 S.W.2d 99, without prejudice the Supreme Court perhaps contemplated an additional hearing.

The respondent further says that the trial court’s judgment of contempt against relator for committing perjury is valid, enforceable and appropriate under the circumstances and is fully supported by the law and the evidence and should be sustained in its entirety.

Without narrating in detail and attempting to reply to the respective contentions of relator and respondent, we think that the matter is properly before this Court for disposition. Section S, Article V, the Constitution of Texas, Vernon’s Ann.St., vests original jurisdiction in this Court in habeas corpus proceedings. It is clear to us that the Supreme Court by its holding regarded the case as one beyond its jurisdiction because of Article 1737, V.A.R.C.S.

We further hold that the trial court’s order of contempt is limited by the terms of Article 1911, V.A.R.C.S.: “The district court may punish any person guilty of contempt of such court by a fine not exceeding one hundred dollars and by imprisonment not exceeding three days.” We concede that a trial court may tax the costs incident to the actual contempt hearing and proceeding itself.

We do not think the trial court was vested with authority to allow an attorney a fee to investigate the contempt of relator and charge it against her as part of the punishment. We observe from the statement of facts relating to the hearing held on February 13, 1961, that the able trial judge was also of the opinion that this “was a matter for which they (the attorneys) could not be reimbursed by their clients. That is a duty of a lawyer as an officer of the Court, and for which he is not compensated by the Court.” When the trial judge later requested an attorney to brief the question as to the court’s authority to allow an attorney’s fee, and the court did so, the court was without authority to allow a fee for such service and require its payment as part of the punishment for contempt. We further note that the respondent judge stated at this same hearing:

“I am going to take the matter of her punishment under advisement for the time being. I don’t know whether this court should handle the matter, or it should he turned over to the grand jury. I just haven’t been able to make up my mind, so far. But I will render a decision sometime in the next day or two.”

The court’s decision was rendered on May 5, 1961, pursuant to the hearing held on February 13, 1961, at which time the trial judge imposed the aforementioned statutory maximum contempt punishment and also $2500.00 by way of attorney’s fees, plus all costs incurred after the date of the judgment rendered May 5, 1960, stating in his order of May 5, 1961, that these costs were “also assessed against the defendant, Nina Ruth Elmore Morris, as court costs and as punishment for her conduct as aforementioned.” We think the trial judge, the respondent, exceeded his authority by the allowance of attorney’s fees and the taxing of same against the relator as part of the punishment for contempt. We have carefully examined all cases cited us by both parties in their briefs. It is elemental in criminal law that the provision of our State Constitution prohibiting imprisonment for debt has no application to criminal proceedings nor to imprisonment meted out as a punishment for violation of the law, and that costs accruing under criminal prosecution and conviction are not a debt within the meaning of Article I, Section 18, Constitution of Texas, which provides: “No person shall ever be imprisoned for debt.” See Ex parte Robertson, 27 Tex.App. 628, 11 S.W. 669; Ex parte Mann, 39 Tex.Cr.R. 491, 46 S.W. 828.

We agree with respondent that Rule 308-A, Texas Rules of Civil Procedure, provide for attorney’s fees and allow the assessment of them as costs in a child support matter. We are also in accord with the holding of the Supreme Court in Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, that the confinement of a person for child support payment and attorney’s fees was not in violation of the constitutional prohibition against imprisonment for debt. We also recognize the fact that the assessment of costs, including fees, is not exceptional under our practice in Texas. Provision is made in our various Rules of Civil Procedure for the taxing of costs in such things as Discovery, Master in Chancery, Auditor, etc. However, we are not here dealing with a case that comes within the terms of any of these various Rules of Civil Procedure. We have been cited no authority in point with the case at bar. Assuming that the trial judge had authority to allow the attorney a fee, which we do not concede, the question then recurs: “Did the trial judge have the authority to tax attorney’s fees as part of the costs and remand relator to jail until the $2500.00 attorney’s fee costs, plus the other costs, were paid?” We think the answer is in the negative.

Since the trial judge clearly exceeded his authority in taxing the attorney’s fees as costs in his Order of Contempt, the entire Order is invalid. This being a collateral attack upon a judgment by habeas corpus, this Court has no authority to reform the judgment. Accordingly, the Sheriff of Tarrant County is ordered to discharge the relator.

Having reached such conclusion, we find it unnecessary to pass upon the question of whether the matter in controversy was decided by the Supreme Court and is therefore res judicata. We also find it unnecessary to determine whether the giving of false testimony in court constitutes contempt of court, as well as the felony offense of perjury.


author: DICE, Commissioner.

text:
    Reynold M. GARDNER, Appellant, v. STATE of Texas, Appellee.
    No. 34133.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an attempted appeal by appellant from an order of the Judge of the District Court, of Dallam County, adjudging him in contempt of court.

In this State there is no right to an appeal from an order of contempt. The only remedy to review such an order is by Writ of Habeas Corpus, when the relator is in custody. 12 Tex.Jur.2nd, sections 57 and 59, pages 535-536. Pegram v. State, 72 Tex.Cr.R. 176, 161 S.W. 458 and Long v. State, 82 Tex.Cr.R. 403, 199 S.W. 619.

The appeal is accordingly dismissed.

Opinion approved by the Court.


author: DICE,- Commissioner.

text:
    Fay Helen GAUTHIA, Appellant, v. STATE of Texas, Appellee.
    No. 34003.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.

      John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE,- Commissioner.

The conviction is for aggravated assault; the punishment, 180 days in-jail and a fine of $150. . .

The record contains no statement of facts and there are no bills of exception.

Appellant predicates her appeal upon the contention that the complaint and information failed to charge an offense because the word “premeditated”, used therein, was misspelled “premediated.” No exception or motion to quash the complaint and information was'filed'by áppellant in the trial court.

We find no merit in the contention.

The complaint and information charged, in separate counts, two different ways by which appellant committed -the aggravated assault upon the injured party. The second count charged aggravated assault by the infliction of serious bodily injury and the third count charged aggravated assault committed with premeditated design and by the use of means calculated to inflict great bodily injury.

Both counts were submitted to the jury and the jury by their verdict found appellant guilty of aggravated assault by the infliction of serious bodily injury, as was charged in the second count of the information. Appellant was not found guilty of aggravated assault when committed with premeditated design, as charged in the third count.

The misspelling of the word “premeditated”, in the third count of the complaint and information would not render invalid such count of the State’s pleadings. It is the rule that the misspelling of a word does not render invalid an otherwise good indictment or information if the sense is not affected and the meaning cannot be mistaken. Weeaks v. State, 163 Tex.Cr.R. 226, 289 S.W.2d 758.

The judgment is affirmed.


text:
    John Robert TURLEY, Appellant, v. STATE of Texas, Appellee.
    No. 33851.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.

      Van Zandt & Sanford, Sherman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault; the punishment, three months in jail.

In view of our disposition of this case, a recitation of the facts is not deemed necessary other than to recite that Officer Bell arrested appellant for speeding, and the assault which constitutes the basis of this prosecution was incident to such arrest.

Appellant and his witnesses testified that Officer Bell, after some heated words with appellant, hit him in the head with a clipboard and that appellant did nothing but engage in a “scuffle” with Bell following this assault by Bell. Appellant further testified that he would have gone with Bell voluntarily if he had not been hit by the clipboard.

Appellant requested a charge to the effect that he had the right to defend himself against the use of greater force by the officer than was required to effect the arrest, and the same was refused. In such refusal, we have concluded that the learned trial court fell into error. We quote from 24-A Tex.Jur., sec. 101, p. 689:

“A defensive theory raised by the evidence should always be submitted to the jury, even though the evidence is conflicting. This is true even if the trial court is of the opinion that the testimony is not entitled to credence.”

Appellant in his brief relies upon Stanfield v. State, 118 Tex.Cr.R. 47, 38 S.W.2d 94, and 6 Tex.Jur.2d, sec. 55, p. 197, and we have concluded that such authority supports his position.

Upon another trial, the question of the argument will probably not occur.

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


text:
    Ramona RAMERIZ, Appellant, v. STATE of Texas, Appellee.
    No. 33885.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.

      Royce E. Ball, Lubbock, for appellant.
    Alton R. Griffin, County Atty., by Sam L. Kelley, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the possession of an alcoholic beverage for the purpose of sale in a dry area; the punishment, a fine of $250.00.

On January 31, 1961, in Cause No. 29,054, appellant’s case was called for trial in County Court at Law No. 2, of Lubbock County. The case was based upon an information and complaint, both duly filed on August 29, 1960. After the jury had been examined, selected, and empaneled, the information was read and appellant entered a plea of not guilty. Immediately afterward, the assistant county attorney discovered that the information contained a variance in that an assistant county attorney, Sam L. Kelley, presented the information but the information bore the signature of J. Q. Warnick, Jr., another assistant county attorney; thereupon the State moved to dismiss the information and the court granted the motion.

Thereafter, on January 31, 1961, a new information was filed in the same Cause No. 29,054, said information being based upon the original complaint filed in said cause on August 29, 1960. Based upon the new information in the same cause number, the case was again called for trial in the same court on March 29, 1961. Prior to the announcement of ready, appellant duly and timely filed a special plea in bar, being a plea of former jeopardy, stating that she had previously been put on trial upon a good and valid information for the same transaction as the one upon which she was now being placed on trial and that the said second trial was, in fact, placing her in jeopardy for the same offense for which she was previously prosecuted.

The special plea in bar was overruled by the court, and appellant excepted.

Appellant was then put upon trial before a jury, the jury finding her guilty as charged and assessing her punishment as aforementioned.

Appellant’s sole complaint by formal bill of exception is to the court’s action in overruling her plea in bar.

Adams v. State, 47 Tex.Cr.R. 35, 81 S.W. 963, and Mimms v. State, 46 Tex.Cr.R. 339, 81 S.W. 965, both involve the validity of informations signed by an officer different from the name of the officer contained in the body of the information. This Court held in these cases that since the law does not require the name of the county attorney to be given in the body of the information the informations were valid. We think these cases are directly in point and are still controlling law in Texas. A person is in legal jeopardy when he is put upon trial in a court of competent jurisdiction upon a pleading sufficient in form and substance to sustain a conviction, when a jury has been charged with his deliverance and when the indictment or information has been read to the jury, and the plea of the accused heard. Hipple v. State (1917), 80 Tex.Cr.R. 531, 191 S.W. 1150, L.R.A. 1917D, 1141; Villareal v. State (1917), 82 Tex.Cr.R. 327, 199 S.W. 642; Steen v. State (1922), 92 Tex.Cr.R. 99, 242 S.W. 1047; Fann v. State (1940), 138 Tex.Cr.R. 580, 137 S.W.2d 1019; Wilson v. State (1946), 154 Tex.Cr.R. 39, 224 S.W.2d 234.

The State has confessed error- in the instant case. We think the original information presented in court at the first trial was valid. Since the information was dismissed by the State after appellant had entered her plea of not guilty, she was placed in jeopardy again for the same offense.

For the reasons stated, the judgment is reversed and the prosecution is ordered dis- , missed.


text:
    Sidney Earl WHEELER, Appellant, v. STATE of Texas, Appellee.
    No. 33901.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is assault with intent to rape; the punishment, 5 years.

Trial was upon a plea of guilty before the court, a jury having been waived in the manner provided by statute.

The 15 year old -prosecutrix testified and appellant’s confession • was introduced without objection. This evidence shows that about 4 P.M. the prosecutrix got off the- school bus and was walking toward her home when appellant stopped his car in front of her, pointed a gun at her and told her to get in. She complied and he drove to a wooded area on a side road, had her remove most of her clothes -and-lay down on the car seat. He put his legs between her knees forcing her legs apart and put his hand on her leg. He leaned over on her, and as he made a move as , to unzip his trousers, the prosecutrix fought and kicked him and he said “O.K. girl, I will kill you.” She replied “Well, you will just have to go ahead.”

Appellant threw up his hands, said he just “wanted to see what kind of a girl I was — wanted to see if I had any fight in me.” He then told her she could put her clothes on and he drove her home.

Appellant testified that he was sorry for what he had done. He offered evidence to the effect that he was married and had two small children, one born after the assault on the prosecutrix.

We find the evidence sufficient to sustain the conviction and no reversible error appears. See Tucker v. State, 157 Tex.Cr.R. 259, 247 S.W.2d 901; Tex.Jur. Vol. 35, p. 803, Sec. 18.

The judgment is affirmed.


text:
    James DAVIS, Appellant, v. STATE of Texas, Appellee.
    No. 33946.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    No attorney for appellant of record on appeal.
    ' Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is assault to murder; the punishment, ten years’ confinement in the penitentiary.

Shirley Langston, a witness for the State, testified .that prior' to. November .3, 1959, she had known the appellant for approximately two and a half years, during which time she had been his employee and had also dated him," that at about a week prior to the date in question she had seen the appellant in Judge Ragan’s court as a result of- the appellant having filed theft charges against her, which charges the judge dismissed; that as she was leaving the courthouse on that date the appellant told her he “was going to shoot me if it was the last thing he did.” She testified that on the night prior to November 3, 1959, she had been working at a lounge for a person by the-name of Jewel-Anderson; that the appellant came in the lounge and they had some conversation, and the appellant slapped her; that there was further conversation between them and the appellant asked to take her home but she refused, reminding him that he had told her lie was going to shoot her, at which time the appellant told her, “No, I will forget ábout that. You come on and I will take you home,” and that she did leave with him at approximately 12:15 A.M.; that they went by the Silver Dollar Drive Inn owned by the appellant, and he went inside for a few minutes, came back to the car, and then they proceeded to another one of appellant’s cafes known as the Silver Dollar No. 2 on Heiner and West Dallas; She testified that at this cafe the appellant had a room built onto and adjoining the cafe; that the_ap-pellant went' through the cafe and entered the room through a door-'into the cafe, and then opened the outside door to the room, through -which she entered; that after they both got into the room the appellant told her he was going into the cafe for a few minutes and would be right back, whereupon she pulled off her clothes and went to bed; that after the appellant had not come back into the room after about thirty minutes, she, using an extension telephone in the room, talked to him in the cafe, and he told her he was going “to- shoot a game of pool and will be right back there”; that about twenty minutes later after she had fallen asleep, the appellant ■ came in, .'got into bed with her and had sexual intercourse with her; that she then asked him to take her home, hut he stated he wanted to “take a little nap and then he would take me home.” She further testified that she awakened him at 2:30 A.M. and told him she was ready to go home, “so he got up and put on his clothes”; and as they started out the door “he shot me the first time” in the thigh and that the appellant, holding her hand and running alongside her, continued to shoot her as she was running toward the street. She identified a .45 caliber automatic pistol as the pistol the appellant had shot her with four times prior to the time “the gun started snapping.” She further testified that the appellant then hollered to Louise Boyd and said, “Louise, bring me another gun and some more bullets,” and, in response thereto, Louise Boyd brought him a revolver and a handful of bullets, and the appellant started shooting her again. She testified that he then drug her back from the street into the room, and, as he was attempting to call the police, he held the gun “down on my kneecap and shot me three times in the kneecap,” and that as she was running out of the place he shot her twice more. She further testified that she escaped to another house and the police and an ambulance were called. She further established venue.

Mrs. Kathy Tyler, a witness for the State and medical records clerk of- the Jefferson Davis Hospital, identified the hospital records of the witness Shirley Langston and testified that such records reflected that said patient was admitted to the hospital on November 3, 1959, with eight .45 caliber pistol wounds of the left thigh and left knee.

James Tyler, a witness for the State and police officer with the City of Houston police department (no relation to the previous witness), testified that as a result of a call he proceeded to 703 West Dallas and saw blood all over the floor; that the appellant was in the room; that he saw two guns there, one a “Colt .38-40 thumb-buster” and a Colt .45. He testified that he followed a trail of blood from the room through an alley to a back porch, where he saw Shirley Langston lying on the floor propped up against the side of the house in a semi-conscious condition.

Jewel Anderson, a witness for the State and employer of the complaining witness, Shirley Langston, on the night before November 3, 1959, testified that Shirley left her lounge with the appellant “about closing time.”

The appellant, testifying in his own behalf, testified that he arrived at his cafe between 12:00 and 1:00 o’clock A.M. and told the people in the cafe he was going •back into his place and lie down; that just as he had dozed off- to sleep, “my door cracked, and it was dark, and I jumped up and grabbed the gun from under my head. At that time, somebody came in and closed the door behind them, and I lay real still, and when they brushed against the bed I shot down on the floor, and then I heard somebody kind of running from one end of the room to the other, and I made three or four shots.” He further testified that after things “quietened down,” “I got up and eased to where I had a string hanging down from the light. I pulled the string down, and there stood Shirley against my dréss'er.” He further testified that he thought' she was a burglar and had for that reason fired the weapon into the floor. He denied that he intended to kill or seriously injure anyone. He further stated that after he discovered the person in the room was ¡ofiirley Langston, she was reaching toward '¿'pistol on the dresser, at which time h‘e shot toward her hand but did not hit her.

Louise Boyd testified that she ha'd a nervous breakdown in December, 1959, subsequent to the shooting on - November 3, 1959, and that- she didn’t remember' the shooting, or taking a gun and some bullets to the appellant. She further .testified -that the appellant was her legal guardian.

Georgia Ann Kelly testified,' but added no new material facts to the case.

The jury resolved the conflicts in the evidence against the appellant. We find the evidence is amply sufficient to support their verdict.

The record on appeal contains no formal .bills of exception.

We have not been favored with a brief by appellant.

Appellant objected to the court’s charge for the failure of the court to submit his right of “self-defense against a threatened assault with a deadly weapon on the part of Shirley Langston.”

The issue of self-defense was never raised in any manner. By appellant’s own •testimony, he had already shot the com- ■ plaining witness thinking she was a burglar. Later, he shot at her because he thought she was reaching for the gun lying on the dresser. This last shot missed her, striking the dresser.

The case of Lackey v. State, 166 Tex.Cr.R. 387, 314 S.W.2d 94, 96, is controlling where Judge Dice, speaking for the Court, stated:

“There is no testimony that prior to the difficulty the deceased spoke any words, did any act, or made any demonstration of hostility toward the appellant, other than, as testified by appellant, to walk toward him. There is no testimony that the deceased was armed at the time. To render a homicide justifiable in self-defense under Art. 1222, Vernon’s Ann.P.C., the person attacked must actually believe that he is in danger of death or serious bodily injury at the hands of his assailant and must have reasonable grounds for so believing. 22 Tex.Jur. Para. 42, p. 442. It is not enough that the party believe himself in danger unless the facts and circumstances were such that the jury could say he had reasonable grounds for his belief. 4 Branch 2d Ed., p. 422, para. 2102; Surges v. State, 88 Tex.Cr.R. 288, 225 S.W. 1103. The facts presented would not have supported a finding by the jury that appellant had reasonable grounds for believing that he was in danger of death or serious bodily injury at the hands of the deceased. Therefore, the issue of self-defense against a deadly attack was not raised. * * * ”

No error is here shown.

Under appropriate instructions concerning appellant’s defense that he thought Shirley Langston was a burglar, the jury found against him.

The informal bills of exception appearing in the statement of facts are completely without merit and reflect no error.

Finding no error, the judgment is affirmed.


author: BARROW, Justice.

text:
    Owen E. LANCASTER, Jr., et al., Appellants, v. Isabel BURRIS et al., Appellees.
    No. 13841.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1961.

      Wolff & Wolff, San Antonio, Arnold W. Franklin, Jourdanton, for appellants.
    Aycock & Steinle, Jourdanton, for ap-pellees.
   BARROW, Justice.

This suit was brought by Isabel Burris, a widow, Alberta Martin, joined by her husband, T. J. Martin, and Madge Matthews, joined by her husband, R. L. Matthews, against Owen E. Lancaster, Jr., Owen E. Lancaster, III, and Blake L. Lancaster, for the partition of two tracts of land, one containing 230 acres, which we will call the first tract, and the other containing 224 acres, which we will call the second tract.

This suit primarily involves the construction and interpretation of the will of Yolanda Burris Lancaster, deceased, wholly written by the testatrix in her own handwriting. Testatrix never had any children, either natural or adopted, and left as her' next of kin, her husband, Owen E. Lancaster, Sr., sometimes known- as “Jack” Lancaster, her mother, Isabel Burris, and her sisters, Alberta Martin and Madge Matthews. Owen E. Lancaster, Sr., died testate, and his property passed under his will to the defendants.

The case was tried to the court upon stipulation of facts and certain documentary evidence introduced by the parties. The trial court found that the first tract of land was the separate property of Yolanda Burris Lancaster, and that the second tract was community property of the testatrix and her husband, Owen E. Lancaster, Sr. These findings are not in any way attacked by appellants. The trial court further found and concluded that testatrix, Yolanda Burris Lancaster, intended by her will that one-half of the property, including her separate property, as well as the community of herself and her husband, Owen E. Lancaster, Sr., should go to her surviving husband, and that the remaining one-half should go to her mother and sisters in equal shares. We are of the opinion that the trial court correctly disposed of the case.

Appellants contend that under the will of the testatrix they are entitled to one-half of the first tract (the separate property) and three-fourths of the second tract (the community property). They suggest only one interpretation of the will which would produce that result. They say that it must be presumed that the testatrix only intended to dispose of her own property. Under that interpretation they would get one-half of her separate property and one-half of her one-half of the community property. Under that construction of the will, they contend that only the one-half of the community land owned by testatrix, along with her separate estate, passed under the will, and one-half thereof was devised to the surviving husband, while at the same time he retained his one-half of the community land. We are of the opinion that the will can not be so construed.

The cardinal rule of testamentary construction is to ascertain and give effect to the intention of the testator as expressed in the language of the will. Avis v. First National Bank of Wichita Falls, 141 Tex. 489, 174 S.W.2d 255; Brady v. Nichols, Tex.Civ.App., 308 S.W.2d 100, affirmed, 158 Tex. 382, 312 S.W.2d 381; Dunham v. Crossland, Tex.Civ.App., 115 S.W.2d 742, aff., 135 Tex. 301, 140 S.W.2d 1095. The presumption is that the testator intended to dispose of his entire estate, Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147; Casey v. Kelley, Tex.Civ.App., 185 S.W.2d 492, and that the testator did not intend to die intestate as;to a part of his estate. Crites v. Faulkner, Tex.Civ.App., 245 S.W.2d 1013. On the other hand, it is to be presumed that the testator intended to confine the devise to his part of the property, and if the will is to be construed as intending to dispose of a co-owner’s part of the property, the language of the will must conclusively evidence such purpose. Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633; Baldwin v. Baldwin, 134 Tex. 428, 135 S.W.2d 92.

With these rules in mind, we are of. the opinion that the will of testatrix expresses her intention in clear, certain and unambiguous language. In referring to the debts to be paid and the real estate devised, she evidenced by clear language that she intended the devise to cover and include all property, both separate and community. The use of the plural pronoun “our” in the comprehensive expression “all of our remaining property,” unequivocally evidences the intent that the devise should include not only her own interest in the community land, but also the interest of her husband. This is made even more evident by the fact that when she got down to the household furnishings and other personal effects, she used the singular “my”, rather than the plural. Moreover, there is nothing in the will to indicate that she intended to die intestate as to her separate estate, nor is there anything in the will to refute the presumption of law that she intended her will to cover all the property she owned or possessed. Therefore, upon the death of the testatrix, the surviving husband was put to an election whether or not to take under the will. Having elected to take under the will, he and those claiming under him are bound by the terms of the will. Lindsley v. Lindsley, supra; Baldwin v. Baldwin, supra; Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328; Long v. Long, Tex.Civ.App., 252 S.W.2d 235; Fairbanks v. McAllen, Tex.Civ.App., 170 S.W.2d 581.

The judgment is affirmed.

      . “Jourdanton, Texas
      “August 26, 1955
      “Will of Yolanda Lancaster
      “I, Yolanda Burris Lancaster, write this as my last Will.
      “It is my wish that our just debts be paid, then it is my desire that all of our remaining property, both money and real be divided as follows: First of all I wish my beloved husband Jack Lancaster, to have one-half for his use and benefit for as long as he shall live to be disposed of by him at his ■ death as he shall see fit, the remaining one-half to be divided equally among my mother Isabel Burris and my two sisters Alberta Martin, and Madge Matthews. I further desire that my personal belongings, my household furnishings, glass, china, silver and bric-a-brac, be divided among my mother and two sisters as they shall choose.
      “It is my further wish that because of the extremely grave nature of the illness of my dear husband, Jack, and to prevent further drain on his strength, my brother-in-law, Jeff Martin, shall be the executor.of my will.
      “Signed Yolanda Burris Lancaster ' “This 26th day of August,-' 1955 at Jour-danton, Texas.”


author: MURRAY, Chief Justice.

text:
    LIVE OAK COUNTY, Texas, Appellant, v. LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee.
    No. 13816.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 8, 1961.
    Rehearing Denied Dec. 6, 1961.
    Harry J. Schulz, Three Rivers, Dan Moody, Jr., Austin, W. L. Hardwick, George West, for appellant.
    Fischer, Wood, Burney & Nesbitt, Wood & Boykin, Corpus Christi, for appellee.
   MURRAY, Chief Justice.

This is a plea of privilege case. The 'suit was originally instituted by Live Oak County/Texas, a political subdivision of this State, hereinafter called appellant or County, against the Lower Nueces River Watér Supply District, another political subdivision of.-the State of Texas, hereinafter called- appellee, or Water District. At the time this suit was filed appellee was in the process of constructing a dam across the Nueces River, which when completed would inundate a portion of the county road'knówn as Lagarto Road. Originally, ’the purpose of the suit was to prevent appel-lee ' from inundating Lagarto Road; until appellee had paid to appellant the damages which would result from the inundation of the road, or, in the alternative, had made suitable arrangements either for the elevation- of said road above the... .anticipated level of the water in the proposed lake, or ,for the payment of the cost of such elevation. At the time of the hearing on the .'plea of privilege.the dam had already been .completed and the water caught in the reservoir had flooded the Lagarto Road. .Now the suit has become a contest between the parties over their respective rights and obligations in connection .with the inundated roadway.

Appellee filed its plea of privilege seeking to remove the venue of this case from Live Oak County to Nueces County, the county of its domicile. To this plea, appellant ■filed a controverting affidavit, and subsequently its first amended controverting affidavit, asserting that the venue of this suit lies, in Live Oak County by virtue of one or more of Subdivisions 9, 14 and 19, of Article 1995, Vernon’s Ann.Civ.Stats.

Subject to its plea of..privilege, appellee filed an answer to appellant’s application for a temporary injunction and a cross-action'. At a hearing, the-trial court granted appellant a temporary injunction but nothing more. On appeal to this Court, such temporary injunction was.dissolved. Lower Nueces River Water Supply District v. Live Oak County, Texas, 312 S.W.2d 696. Application for writ of error was refused, n. r. e., by the Supreme Court. .After such .action by this Court, appellee proceeded tó complete the dam, close the gates and impound the water of the Nueces River, which inundated the bridge and portions of the Lagarto Road, and the same are now under several feet of water..

A hearing was subsequently held before the district court on the plea of privilege and 'controverting affidavits, and after hearing and considering the evidence presented and the argument of. counsel, the trial court granted the plea of privilege, from which action Live Oak County has prosecuted this appeal.

Appellant’s first contention is that appellee had waived its plea of privilege by filing a cross-action and urging its prayer for affirmative relief, both at the hearing before the trial court and on appeal before this Court. We do not find anything in the record before us to indicate that appellee attempted to obtain affirmative relief in the trial court. It is true that at the hearing on the plea of privilege, appellant introduced appellee’s answer setting out the cross-action. This cross-action was expressly made subj ect to the plea of privilege. There was nothing introduced in the trial court to show that appellee in the injunction hearing asked for affirmative relief. We are bound by the record before us. 3 Tex.Jur.2d 652, § 395. We are not required-to search the record on the prior • appeal to determine whether or not appellee there sought affirmative relief in that hearing. 3 Tex.Jur.2d 652, § 396.-

We do not find anywhere in the record that appellant- plead or presented to the trial court any contention that appellee had waived its plea of privilege. Neither the original controverting affidavit nor the amended controverting affidavit contains one word presenting the contention that appellee had waived its plea of privilege. The plea of privilege and the controverting affidavit, or amended controverting affidavit, are the only pleadings to be considered by a trial court in a venue hearing. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Galloway v. Nichols, Tex.Civ.App., 269 S.W.2d 850; Papas v. Harmon, Tex.Civ.App. 263 S.W.2d 269; Gholson v. Thompson, Tex.Civ.App., 298 S.W. 318. Therefore, it seems to us that the contention that appellee had waived its plea of privilege was not raised in the trial court; if it was raised, it is not sustained by the record before us. Such a question can not be raised for the first time in this Court. 3 Tex.Jur.2d, 377, § 108.

Appellant next contends that the trial court should have overruled the plea of privilege and maintained venue of this suit in Live Oak County under Subdivision 14, Art. 1995, which reads as follows:

“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Appellant’s specific contention is that this is a suit by the County against the Water District for damages to its county road known as Lagarto Road, caused by the flooding of the road with water impounded in appellee’s lake. We can not agree. The record shows that at the time the plea of privilege was being heard this suit had become nothing more than a suit by the County against the Water District to require it to pay the cost of the elevating of Lagarto Road. Such a suit cannot be classified as a suit to recover land or damages thereto. Art. 7585, Vernon’s Ann.Civ.Stats., makes it the duty of the Commissioners’ Court of the County to re-locate a road that is to become a part of a reservoir or lake when a water district completes its dam. It also makes it the duty of the Water District to pay the cost of removing bridges and other property interfering with the construction of the reservoir, as well as the cost of building the relocated road. The County, although timely notified by the Water District to remove the bridge and re-locate Lagarto Road, refused to do so until after it was flooded. It did pass an order requiring that Lagarto Road be elevated to such an extent that it would not be flooded by the water of the reservoir. It was estimated that the expense of doing so would be something over $667,000.00. When the suit is finally tried upon its merits it will involve the question of the duties and liabilities between the County and the Water District under the provisions of Article 7585, supra. Whatever rights the County has in this matter and whatever duties the Water District owes, are all fixed and provided for in Article 7585. The damages done to the old Lagarto Road and bridge will be immaterial: This suit is now a suit under the provisions of Article 7585, and is in no sense a suit for land or damages thereto.

Appellant next contends that Live Oak County has venue of this suit because the Water District committed a trespass in that County. We overrule this contention. Under the provisions of Article 7585, the Water District had a right to build the Wesley Seale Dam across the Nueces River. It did not commit a trespass in doing so, and the charges which it will ultimately have to pay will not be for trespass, but will be governed by the provisions of said Article 7585.

Appellant’s contention that venue here is governed by Section 19, Art. 1995, relating to suits against a county, is without merit and is overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    A. P. HART et al., Appellants, v. SINCLAIR OIL & GAS COMPANY, Appellee.
    No. 3921.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1961.
    Rehearing Denied Dec. 18, 1961.
    John Seale, Jasper, for appellants.
    Burton W. Morris, Gaius G. Gannon, Jr., Houston, for appellee.
   McDONALD, Chief Justice.

This is a suit for damages resulting to plaintiffs as a result of defendant’s having appropriated the surface of certain lands, the surface of which is owned by plaintiffs, and one-half of the oil, gas and other minerals is owned by defendant.

Plaintiffs acquired the surface to the lands herein from the East Texas Pulp and Paper Company, and such conveyance was. made subject “to the conditions, reservations, provisions and exceptions (but including all correlative rights, interests and1, privileges)” contained in instruments wherein defendant acquired the mineral interest..

Defendant made well locations and appropriated the surface owned by plaintiffs, to plaintiffs’ stipulated damage of $1971.

Trial was to the court without a jury which entered judgment that plaintiff take-nothing.

The plaintiff appeals, contending that the-Trial Court erred in its construction of the 1916 lease under which defendant deraigned; its title to the minerals.

The case turns on the construction-of the following 2 paragraphs of such instrument, which follow the granting clause..

“Together with all and singular the perpetual right with Grantor and Trust Estate of possession and of ingress and egress at all times for the purpose of exploring, drilling, mining and in. every way operating for such minerals upon such premises and every part thereof, and to remove such minerals from the same, and with the right of erecting upon the premises all such buildings, derricks, tanks, reservoirs, pipe lines, telegraph and telephone lines or other improvements and equipment of every character which such grantees, respectively, their successors and assigns, may find necessary, proper or convenient for the exploration, using, enjoying or removing any and all such minerals, together with every incidental right essential to the complete enjoyment of the properties and privileges conveyed.
“Grantees, respectively, shall have the right particularly to lay pipelines over and upon all the premises at will, and to assign such right in whole or in part to another or others, and in the conduct of operations on the premises to have free use and privilege of water and fuel and waste timber (not covered by Kirby Lumber Company contract and not previously sold), and for the appropriation and use of all necessary quantities of surface for locations for pump stations, tanks, reservoirs and other operating and storage structures, but all such rights shall be exercised with due care, and reasonable compensation made to the then owner of the fee for any damage or injury that may be caused, including compensation to any such owner, other than Grantor or Trust Estate, for the surface appropriated * * *."

As noted, plaintiff acquired his surface interest from the East Texas Pulp and Paper Company and is an owner other than the Grantor or Trust Estate referred to in the foregoing instrument.

If the lease under which defendant drilled its wells had been a conventional oil and gas lease, it would have had the right to use so much of the surface as was reasonably necessary to comply with the terms of the lease and to effectuate its purpose. Warren Pet. Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352; Brown v. Lundell, Tex., 344 S.W.2d 863; General Crude Oil Co. v. Aiken, Tex., 344 S.W.2d 668.

The lease in the case at bar was not in conventional terms, but undertook specifically to provide that “reasonable compensation made to the then owner of the fee for any damage or injury that may be caused, including compensation to any such owner, other than Grantor * * * for the surface appropriated.”

Defendant contends that the agreement to compensate for damage done or surface appropriated is limited to the paragraph in which such agreement is contained, and hence covers injury and surface appropriation inuring only from the laying of pipelines over the premises.

Plaintiff contends that the 2 paragraphs must be construed together and that defendant is bound to pay for injury caused and surface appropriated resulting from drilling and the other items mentioned in the 1st paragraph, as well as for the laying of pipelines, as mentioned in the 2nd paragraph.

The instrument under review gives the lessee the right to appropriate all surface, not only that reasonably necessary to effectuate the purposes of the lease, but in addition such as might be deemed “convenient” to it in its exploration for, and production of, oil and gas. The 2nd paragraph provides that lessee will pay for the surface appropriated (if the then surface owner is other than the original Grantor).

The whole material portion of the instrument must be considered in order to ascertain its meaning. This is true even if the material part consists of different sentences and different paragraphs. Watkins v. Slaughter, 144 Tex. 179, 189 S.W.2d 699.

It is our construction that the defendant's obligation to compensate the surface owner, extends to the activities covered m both the 1st and 2nd paragraphs, and that the Trial Court’s construction of the instrument is erroneous

Plaintiffs’ point is accordingly sustained and the judgment of the Trial Court is reversed and judgment here rendered for plaintiff for $1791., together with interest at 6% per annum from 22nd November, 1960 (the date of the judgment of the Trial Court).

Reversed and rendered.


author: DENTON, Chief Justice.

text:
    Melvin McCOLLUM v. RED RIVER VALLEY PUBLISHING COMPANY.
    No. 7125.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1961.
    Rehearing Denied Dec. 18, 1961.

      Mullinax, Wells, Morris & Mauzy, Dallas, for appellant.
    Joe A. Keith and Frank R. Roark, Jr., Sherman, Gullett & Gullett, Denison, for appellee.
   DENTON, Chief Justice.

This suit was instituted by appellant, Melvin McCollum, against the Red River Valley Publishing Company, appellee, to recover damages resulting from an alleged libelous article appearing in appellee’s newspaper, “The Sherman Democrat,” on October 24, 1959. A jury was duly empaneled and heard testimony from both parties. At the close of the evidence the trial court overruled appellee’s motion for a peremptory instruction. Thereupon the court’s charge, which included three special issues and various instructions, was read and delivered to the jury. The record reveals one of the special issues was answered by the jury. The jury found the language appearing in the article in question was published with actual malice toward the plaintiff. The two remaining issues concerning actual and exemplary damages were unanswered. The trial court then discharged the jury and rendered judgment for the appellee, holding as a matter of law that the published article was not libelous. The record does not contain a statement of facts.

The case was tried to a jury, but was withdrawn from the jury by the trial court. The trial court, in response to appellant’s request, filed detailed findings of fact and conclusions of law. Appellee has come forward with five counterpoints which take the position in effect that these findings and conclusions are surplusages and are of no legal significance. We are convinced this contention is correct. Ditto v. Ditto Investment Co. 158 Tex. 104, 309 S.W.2d 219; Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820; Cox v. Rhodes, Tex.Civ.App., 233 S.W.2d 924 (no writ history); Willis v. Snodgrass, Tex.Civ.App., 302 S.W.2d 706 (refused n. r. e.). In the Ditto case, supra, the trial court discharged the jury and entered a take nothing judgment in favor of the defendant as was done in the instant case. There the trial court also filed findings of fact and conclusions of law without objections. In that case Justice Smith used the following language [158 Tex. 104, 309 S.W.2d 220]:

“The filing of such findings and conclusions was neither necessary nor proper. There is no authority for the filing of findings of fact and conclusions of law under the circumstances we have here.”

The cases cited above are controlling here. We will therefore consider this case on appeal in light of the record as though no findings of fact or conclusions of law had been filed by the trial court.

The original transcript contained the pleadings, appellee’s motion for peremptory instructions, the judgment, and the findings and conclusions referred to above. This court granted a motion by appellant to file a supplemental transcript which contained the trial court’s charge, requests for admissions and the reply to the requests for admissions.

Although we have previously held the findings of fact and conclusions of law have no proper place in this record, we will refer to them only for the purpose of determining the theory upon which the trial court discharged the jury and entered judgment for the appellee. Fancher v. Cadwell, supra. From such findings and conclusions it is apparent the trial court found the article read in its entirety was substantially true; that the headline standing alone was not libelous because it did not identify any person; that the article itself sufficiently explained the headline, and that the article’s contents were substantially true; and concluded the article in its entirety was not libelous as a matter of law.

Appellant’s first four points of error in effect complain of the trial court holding the article was not libelous. These points deal with an alleged erroneous conclusion of law as distinguished from procedural or evidentiary matters. We therefore conclude we are required to review these four points of error despite the absence of a statement of facts. Lane v. Miller & Vidor Lumber Co., Tex.Civ.App., 176 S.W. 100 (error refused); Gates v. Union Terminal Co., Tex.Civ.App., 295 S.W. 939 (refused), 3 Tex.Jur.2d, Secs. 448 and 449. The article together with its headline under consideration appears in the appellant’s pleadings and the requests for admissions. It reads as follows:

“Burglar Nabbed At Victim’s Reception
“Whitewright — Melvin McCollum, 44, of Amarillo, attended a gala grand opening of the new Edwards Chevrolet Co. building here Friday night, but was unexpectedly called away — to jail.
“McCollum has been charged with the Sept. 21 burglary of the White-wright firm. About $600 cash and 16 tires valued at $600 were taken in the burglary the night Edwards moved his stock into the new building.
“Deputy Sheriff Jim Spaugh spent two days staked out at Greenville waiting for him to show up there. But McCollum never went to the Green-ville address where he was expected.
“Friday night McCollum boldly returned to Whitewright and attended the open house at Edwards new location. Carl Edwards, owner, spotted the man and called Spaugh. The Sheriff came immediately to Whitewright and took McCollum in custody. McCollum was still being questioned about the burglary Saturday. He has made no statement, Spaugh said.”

It is well settled that on appeal from a judgment on an instructed verdict or one rendered by the court after the dismissal of the jury, the rule is that in determining whether it is proper to instruct a verdict, the appellate court must review the evidence in the light most favorable to the losing party and must indulge against the instruction every inference that may be drawn from the evidence. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; White v. White, 141 Tex. 328, 172 S.W.2d 295.

We must therefore apply this rule of law in the light of the record before us. The record contains no statement of facts and as the trial court’s findings and conclusions were not properly filed, the latter’s contents can not be considered on this appeal. We are now called upon to decide the question whether or not appellant’s requests for admissions and appellee’s reply thereto are properly before this court for consideration. In the absence of a statement of facts we are unable to determine whether or not the requests for admissions and reply were formally introduced into evidence. The record does reveal they were filed of record in the clerk’s office in accordance with the 1950 Amendment to Rule 169. Assuming, as we must, that the admissions were not formally introduced, we are nevertheless of the opinion the admissions are properly a part of this record for our consideration. Fuller Nurseries & Tree Service v. Jones, Tex.Civ.App., 253 S.W.2d 946 (no writ history); Kansas City Title Insurance Co. v. Atlas Life Insurance Co., Tex.Civ.App., 336 S.W.2d 204 (no writ history). The Fuller case, supra, squarely passes on this point. There the court held [253 S.W.2d 947]:

“For us to give the rule (Rule 169) the meaning attributed to it by appellant would require us to hold that before the admissions could have any effect as such they must be formally introduced in evidence at the trial, and thus require that issues already litigated and determined by the request for admissions and the reply, and about which there is no controversy, must again be determined by a finding of the trial court as to the truth or falsity of the admissions. Such is not the purpose of the rule.”

We think this conclusion conforms to the basic purpose of Rule 169 which is to simplify the trial of a case by eliminating uncontroverted matters. Sanders v. Harder, Tex., 227 S.W.2d 206.

We must therefore look to the newspaper article in light of the pleadings and admissions only to determine the propriety of the trial court rendering judgment for appellee. The admissions filed by appellee admit appellee is a private corporation, incorporated under the laws of Texas; that it owned and published “The Sherman Democrat” on the day in question; that that particular edition was widely distributed; that it contained the article complained of; that the newspaper was sold and delivered to hundreds of subscribers in Grayson County and adjoining counties; that the article in question appeared on page one of the newspaper on the particular date; and it was written by appellee’s agents, servants and employees; that ap-pellee intended that its readers who read the article should rely upon it as being true; and that no retraction of the article had been published. Appellee denied that no subsequent article to the one complained of had been published.

These admissions constitute all of the evidence in the record to be considered. We must therefore look only to them to determine the basic question before us: whether or not the trial court erred in rendering judgment for appellee. To briefly summarize this evidence before us: the article itself appears of record; it was published by appellee and written by its agent ; it was widely distributed; and appellee intended for its readers to rely on the article as being true. We think appellee’s pleadings are sufficient to identify this appellant as being the person referred to in the article.

In view of appellee’s general denial in addition to special denials, the burden of proof was upon plaintiff below to establish by competent evidence every fact necessary to establish his cause of action. It is apparent the record is absolutely void of any evidence as to the truth or falsity of the article. There is no evidence as to any damages, if any, suffered by appellant, and there is no evidence upon which to determine whether the article was a reasonable- and fair comment on this matter of public concern published for general information-Thus we are not in a position to determine whether the article was privileged under Art. 5432, Vernon’s Ann.Civ.St. We can not say the article presents a case of libel per se in view of the lack of evidence concerning the truth or falsity of the article.. Under the limited evidence before us,, viewed in the most favorable light to appellant, we can not say the evidence would support a judgment contrary to that rendered by the trial court. Adams v. A. A. Paton & Co., Tex.Civ.App., 173 S.W. 546 (no writ history); Moreman v. Armour & Co., Tex.Civ.App., 65 S.W.2d 334 (error refused), 4 Tex.Jur.2d, Sec. 756, pages 259 and 260. Appellant’s points of error Nos. 1 through 4 are therefore overruled.

The last two points of error contend fact issues were presented for the jury’s consideration as to whether or not the article described appellant as a burglar* and whether he was described as the one who burglarized the motor company. In order to justify the submission of a special issue to the jury, the issue must be raised both by pleadings and evidence. Rule 277,. Texas Rules of Civil Procedure. These points of error are of such a nature as to require a review of the evidence. There-being no statement of facts, we have no basis for passing on such points of error. Sigmund Eisner Co. v. Sol Frank Co., Tex.Civ.App., 70 S.W.2d 465 (no writ history); Adcock v. Hatley, Tex.Civ.App., 162 S.W.2d 1017 (no writ history), 3 Tex.Jur.2d 696.

The judgment of the trial court is accordingly affirmed.


author: WILSON, Justice.

text:
    Kay FORTUNE et al., Appellants, v. SWAP SHOP et al., Appellees.
    No. 3902.
    Court of Civil Appeals of Texas. Waco.
    Nov. 30, 1961.
    Rehearing Denied Dec. 21, 1961.
    Adams & Browne, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellees.
   WILSON, Justice.

In a collision between meeting vehicles, the parents of minor plaintiffs were killed. The jury found the collision was proximately caused by negligence of defendant truck driver in failing to keep a proper lookout, failing to yield the right of way while attempting to make a left turn and driving his truck while intoxicated. It was found defendant’s truck was not being operated on the left side of the highway, and defendant did not fail to keep the truck under proper control. The jury also found negligence of plaintiffs’ father in driving at an excessive speed and in excess of 60 miles per hour, proximately caused the collision.

Appellants say there is insufficient evidence, or none, to support the latter find-sngs relating to speed and causation. The chief argument is that expert opinion evidence to the effect that decedents’ car was travelling at a speed in excess of 80 miles per hour, introduced without objection, was based on a reconstruction from investigation several days after the accident in which it was assumed the asphalt pavement of the highway was dry; whereas the other evidence, including defendants’ admission, was that it was damp or wet. If it should be said the weight and credibility factors were not for the jury, and this evidence should be disregarded, the remaining testimony as to speed, introduced without objection, was that of highway patrolmen called by plaintiffs. One of these testified the vehicle was moving at a speed of “at least SO”, was going “faster than 50”, and “could have been going” 80 miles per hour. This witness stated he found nothing in his investigation to lead him to conclude “they were driving over 60.” The other patrolman testified that in his opinion from what he “found out there” as a result of investigation made shortly after the collision and before the cars were moved “he was travelling about 60 miles an hour.” The opinion of these witnesses was based on existence of a “damp” or “wet” highway surface. The car left approximately 123 feet of skid marks. The evidence indicates this automobile skidded to its left so as to cross the center line of the highway to collide with defendants’ truck. We think this and other evidence supports the findings.

Irreconcilable conflict between affirmative findings as to speed, and a negative finding on the issue of failure of decedent to keep his automobile under proper control is asserted. It is held there is no irreconcilable conflict. Kimble v. Younger Bros., Tex.Civ.App., 283 S.W.2d 254, 255, writ ref. n. r. e.; Dorsey v. Younger Bros., Tex.Civ.App., 216 S.W.2d 294, syl. 3; Harrison v. King, Tex.Civ.App., 296 S.W.2d 344, 346, writ ref. n. r. e.; Holly v. Bluebonnet Express Co., Tex.Civ.App., 275 S.W.2d 737, 741, writ ref. n. r. e. As to proper control, the proximate cause issue, conditionally submitted, was unanswered. See Little Rock Furn. Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991.

Appellants urge the finding on a discovered peril issue, that defendant truck driver did not realize in time that deceased could not or would not probably extricate himself from his peril, is against the undisputed evidence. Defendant driver testified he signalled for a left turn, swung to his right and turned left toward the center line, “and I realized this car was approaching too fast for me to make the intersection, and I stopped.” At that time decedents! car was 150 to 200 feet away. Defendant driver says he stopped at the line, and the jury finding sustains his testimony. The. car began skidding while about 175 feet from defendant’s truck. There is evidence to show that there was ample room for decedents’ car to pass in a ten foot paved lane with an eight foot adjacent shoulder. The time available was little more than three seconds under favorable evidence in support of the finding. There is no direct testimony on the realization issue. This point is overruled.

A more difficult point is assigned concerning overruling appellants’ motion to declare a mistrial. After the jury was impaneled and before the pleadings were read or evidence begun, a juror advised the court that he had discovered defendant was the father-in-law of “a good friend of his”, and he “kind of felt uneasy with me on the jury.” He testified in chambers he didn’t think this would affect his verdict; “Here’s the only thing I would think about: in case the man does lose the case, being on the jury, what effect it would have on my friendship with his son-in-law. That’s just straightforward.” In answer to the court’s question he then said he felt he could be guided by the evidence and the charge. “Counsel: You say you worry about how your friend would feel? Juror: That’s the whole thing right there. As for myself, I don’t think it will; I can take the evidence and give a fair judgment on the case. But what effect will it have on my friendship between his son-in-law? Because we hunt together quite a bit, and I would hate to lose a friend over something like this. I realize it is throwing a monkey-wrench in the case. You all will have to re-pick a jury.” He then stated he didn’t think “maybe losing his friendship” would affect him. “If he is a good enough friend, which I think he is, it would have no effect on his friendship.” Again insisting these facts wouldn’t affect him: “The only thing I am kind of worried about is how my friend would feel about it. As far as myself, I’m willing to keep on with it, go all the way with it.” He said he would wait until he heard the evidence to make up his mind. On cross-examination he said “it wouldn’t bother him” that he “might lose his friendship.”

The court certifies to us that five days after the jury was impaneled the jurors were brought into court, and inquiry was made as to whether the jury could reach a verdict. This juror “spoke up and emphatically stated he doubted it. You’d be surprised which issue we’re on now.” He further certifies that when this juror failed to agree with others at 9:00 P.M. as to type of sandwiches desired, a woman juror said to him, “You have to be different about everything.” The court also certifies this juror said the son-in-law was his best friend and hunting partner and he was worried. He tells us plaintiffs’ counsel was not apprised of such facts on voir dire examination.

This is not a case in which information relating to a juror’s attitude is developed by post-trial probing after a case is lost. It is not a case in which the court has overruled a challenge for cause, leaving counsel an opportunity to make tactical effort to disqualify an unfavorable prospective juror. Here, counsel was confronted with the reality the juror was a constituent of an impaneled jury, with whom he was compelled to deal with tact and discriminating caution. It was then too late for counsel to take secondary protection1 in a peremptory challenge. It was not even a case in which evidence had been adduced, and time of court, jury and litigants had been needlessly consumed. The court certifies that other veniremen were available on a panel from which another jury could have been selected.

It may be thought difficult at best to induce veniremen to recognize and acknowledge the elusive conscious or subconscious influence, motive or attitude which may predispose reaction to conflicting evidence. Here the juror examining his inmost thoughts, and having reflected on his own qualification, realizing his admission will “throw a monkey-wrench in the case”, candidly tells the court he is worried and “uneasy” about the effect on his friendship with his best friend and hunting companion who is related to defendant, if defendant should lose the case.

In such a situation it is held the affirmation of a juror “that he can set this aside and try the case fairly upon the law and the evidence should be disregarded.” Lumbermen’s Ins. Corp. v. Goodman, Tex.Civ.App., 304 S.W.2d 139, 145, writ ref. n. r. e.; Kansas City Life Ins. Co. v. Elmore, Tex.Civ.App., 226 S.W. 709, 715; Texas Cent. R. Co. v. Blanton, 36 Tex.Civ.App. 307, 81 S.W. 537; 3 McDonald, Texas Civil Practice 978; 26 Tex.Jur., Secs. 178, 188, pps. 747, 753. We think the record shows this juror frankly admitted he was not such an impartial juror as the parties were entitled to, and appellants’ motion should have been sustained.

Appellee says the record disclosing the foregoing facts is not properly preserved because they are not contained in a statement of facts or formal bill of exception. Rule 372, Texas Rules of Civil Procedure, provides that no particular form of words shall be required in a bill of exception, and that where the ruling or action of the court appears otherwise of record, no bill shall be necessary to reserve an ex■ception thereto. The record presented is a certificate authenticated by the trial judge ■ attesting events which occurred. This is -a bill of exception. 4 Tex.Jur.2d Sec. 489. Reversed and remanded.


text:
    Patricia Eloise PINCHBACK, a Minor, by and through H. L. Daugherty, as Next Friend of Patricia Eloise Pinchback, and Patricia Eloise Pinchback, a Minor, Appellant, v. Mary Frances Bowlin PINCHBACK et al., Appellees.
    No. 3918.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1961.
    Rehearing Denied Dec. 21, 1961.

      Marcus & Weller, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   McDONALD, Chief Justice.

This is a will contest filed by Patricia Pinchback, as plaintiff, contesting the will of her father William P. Pinchback, deceased, on the grounds: 1) That deceased testator did not have testamentary capacity to make a will; 2) That testator was unduly influenced by Mary F. Pinchback, Howard P. Castle, R. T. Pinchback, or J. S. Pinchback.

The record reflects that the deceased William P. Pinchback’s first wife died in September 1955. That one child, the plaintiff herein, was born of this marriage; that the deceased loved his daughter very much; that he had all of his insurance ($20,000) payable to her, and executed a will leaving her all of his property. It is further reflected that plaintiff was vested remainder as a child of William P. Pinchback, of her grandmother’s will, to a ⅛ interest in the grandmother’s estate, after the death of her father who received a life estate in such ¼ interest.

In October 1956 William P. Pinchback married Mary F. Pinchback, defendant herein. He thereafter instituted adoption proceedings in July 1957, adopted 2 additional children; and thereafter had the beneficiary of his insurance changed from plaintiff to his 2nd wife for a ½, and the other y/2 to be divided between plaintiff and the 2 adopted children. In September 1957 William P. Pinchback executed a will, revoking his prior will, and leaving everything to his second wife, defendant herein. In latter 1957 William P. Pinchback became ill and was operated on for a lung cancer. In August 1958 he was readmitted to the hospital with a serious condition of cancer.

On 13 September 1958 while in the hospital, deceased executed a new w;ll, (similar to the September 1957 will), and again leaving everything to his second wife. He died on 7 November 1958 of the cancer.

Plaintiff’s suit alleges that the 13 September 1958 will was executed when deceased was without testamentary capacity, and/or as the result of undue influence and impor-tunities by the second wife (or on behalf of' the 2nd wife), at a time when the testator was seriously ill, in pain and shock, and under the administration of drugs used in-treatment of his cancer. Plaintiff further alleged that the will was procured by fraud and/or mistake; and that the testator-thought that plaintiff, his natural daughter,, was taken care of in that she would take a full ¼ undivided remainder interest in his mother’s estate under the provisions of her will.

Trial was to a jury which, in answer to-special issues, found: 1) William P. Pinch-back was of sound mind at the time he executed the will; 2) That the will was-not procured through undue influence of Mary F. Pinchback (the 2nd wife); 3) That the will was not procured through undue influence of Howard P. Castle, R. T. Pinchback, Jr. or J. S. Pinchback. The Trial Court entered judgment on the foregoing verdict that plaintiff take nothing.

Plaintiff appeals on 53 points, which present the following principal contentions:

1) The Trial Court erred in refusing to give plaintiff’s requested charge concerning Article 3716 to the jury.

2) The Trial Court erred in permitting Mary F. Pinchback to testify to various conversations which she had with the deceased.

3) The Trial Court erred in permitting the witnesses Goodwin, Nan Oxford, and J. S. Pinchback to testify that the deceased was of sound mind at the time of the execution of the will.

4) The Trial Court erred in permitting Mary F. Pinchback and Lynn Ross to testify that Judge Langdon told deceased that the 2 adopted children would inherit under the laws of Texas the same as natural children would.

5) The Trial Court erred in permitting the witnesses, Hilla, Isaacs, and Wilson to testify that they never observed anyone trying to pressure deceased to sign the will.

6) The Trial Court erred in permitting the witnesses J. S. Pinchback and W. F. Oxford, Jr. to testify that they had never endeavored to influence the deceased in making a will as to put any provision in it.

7) The Trial Court erred in admitting the testimony of the witness Rosamond Collins as to the relationship which existed between plaintiff and deceased; and in admitting the testimony of the witness Charles Collins as to what he saw and observed in the relation between the Pinchbacks and the 2 adopted children.

8) The Trial Court erred in its definition of “sound mind.”

We revert to plaintiff’s 1st contention: the Trial Court erred in refusing to give plaintiff’s requested charge concerning Article 3716 (the Dead Man’s Statute) as follows: “You are instructed in this case that the contestant Patricia E. Pinchback, is not permitted by law to testify or give evidence before the jury or the court relating to any transaction or conversation, or statement by William P. Pinchback, deceased, over the objection of the proponent Mary F. Pinchback, unless the contestant, Patricia E. Pinchback, is called to testify thereto by the opposite party, proponent, Mary F. Pinchback, et al, or unless the proponent Mary F. Pinchback, waives her obj ection to the admission of such testimony before the court and jury.”

The Trial Court charged the jury as follows: “You are further instructed that in this case Patricia E. Pinchback is not permitted by the law to give evidence relating to any transaction or conversation with, or statement by, William P. Pinchback, deceased, unless the said Patricia E. Pinch-back is called to testify by the opposite party.”

The instruction given by the court was in the exact language of Rule 182a Texas Rules of Civil Procedure, and is a correct instruction. Moreover the requested instruction for all intents and purposes is the same as the instruction actually given. Finally the plaintiff, while requesting a very slightly different instruction, made no objection to the instruction actually given. City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176. The contention is overruled.

Plaintiff’s 2nd contention is that the Trial Court erred in permitting Mary F. Pinchback, 2nd wife and defendant, over objection, (and in violation of the Dead Man’s Statute), to testify as to various conversations which she had with the deceased. Mary F. Pinchback was permitted to testify that she did not ask the deceased to leave plaintiff out of the will; and that deceased (and Judge Langdon) told her that the 2 adopted children would inherit equally with plaintiff under the grandmother’s will. The record reflects that plaintiff called Mary F. Pinchback as a witness in the probate court, by twice taking her deposition in advance of trial, and called her and recalled her as a witness on the trial, and questioned her about the same matter to which objection is made. The objection was waived. Allen v. Pollard, 109 Tex. 536, 212 S.W. 468. Moreover the testimony relative to the rights of the 2 adopted children under the grandmother’s will is in the record from other sources. The contention is overruled.

Contention 3 complains of the admission of testimony from the witnesses Goodwin, Nan Oxford and J. S. Pinchback that the deceased was of sound mind. The witness Goodwin had known deceased since 1948 and worked with him; Nan Oxford was deceased’s sister; and J. S. Pinchback was deceased’s brother. All 3 witnesses were very close to the deceased and showed beyond any doubt that they were in a position to have reached an opinion as to his mental condition. These lay witnesses were qualified to give testimony as to the deceased’s soundness of mind. McCormick & Ray, Texas Law of Evidence 2d Ed., p. 1421 p Edwards v. Hudgins, Tex.Civ.App., (nwh) 347 S.W.2d 745. The contem tion is overruled.

Plaintiff’s 4th contention is levelled at the admission of .testimony to the effect that Judge Langdon, the Judge who granted the adoption of the 2: children to deceased and-defendant stated to deceased that the 2 adopted children, under Texas law, would inherit the same as natural children. .-One of the grounds upon’which plaintiff seeks to set’her father’s will aside is that he thought shé'whs provided for in her grandmother’s will, ánd that misrepresentations were made to' the deceásed- as to plaintiff’s "rights ‘ under' the grandmother’s will. The 'plaintiff having injected the qúestion of the deceased’s knowledge as to the rights of adopted children, the complained- of evidence was admissible, not to establish the truth of the statements made, but to-establish the fact of the making of the statements as to what the testator was told at' the time of adopting the 2 children, as to-their rights of inheritance. Plaintiff alleged that her father cut her out of his will because of a belief that she was to receive-¼ remainder interest of her grandmother’s, estate. The complained of testimony merely is to the effect that the deceased was told' the contrary. Such evidence was admissible. Texas Employers’ Ins. Ass’n v. McDonald, Tex.Civ.App., W/E Ref., 238 S.W.2d 817; McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442. The contention is .overruled.

Plaintiff’s 5th contention is levelled' at the admission of testimony of the witnesses Hilla, Isaacs and Nelson to the effect that they never observed- anyone trying' to pressure deceased into signing the will,. The will was signed by deceased in the-hospital about a week before his death. He had been ih'the hospital for some time with cancer. The witness Hilla was the floor-nurse who saw deceased many times each day and was in and out of his rooiri constantly; the witness Isaacs'was along timer friend of deceased who visited deceased often in the hospital, and was the Notary he called to take his acknowledgment to the will; and the witness Nelson was deceased’s, doctor, in charge of his case, and a frequent visitor to deceased’s hospital room. All were in a position of constant observation of deceased, his room, and his visitors, and whát took place. All testified that they saw no evidence of pressure being put on deceased to sign the will. Such evidence was objected to on the ground that it was opinion evidence, and that detailed facts and observations should have been testified to. We think the evidence admissible as á shorthand rendition of the composite of observations of deceased and his visitors for the period deceased was in the hospital. 23 Tex. Jur. p. 609; p. 658. See also City of Ft. Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125. The 3 witnesses here involved testified as to matters within their actual knowledge as to whether or not when they were present with deceased, anyone was trying to pressure him to sign the will. To require these witnesses to fully and accurately detail everything they saw would be impractical. We think the Trial Court correctly exercised his discretion and permitted the witnesses to give a shorthand rendition of facts based upon their knowledge and observations. The ■contention is overruled.

Plaintiff’s 6th contention is that the Trial Court erred in permitting the witnesses J. S. Pinchback and W. F. Oxford, Jr. to testify that they had never endeavored to influence the deceased in the making of ■a will. J. S. Pinchback was charged by plaintiff with attempting to influence the ■deceased in making his will. His testimony was admissible, as direct evidence by a party charged, with respect to his acts. The testimony of both witnesses was admissible, the objection going to the weight rather that to the admissibility of the evidence. The contention is overruled.

Plaintiff’s 7th contention complains of the testimony of the witness Rosamond Collins that deceased and his daughter’s (plaintiff) relationship was in effect a normal relationship; and further complains of the testimony of the witnesses Charles and Rosamond Collins that deceased loved the 2 adopted children and that the home was a normal home. We think the testimony admissible as a shorthand rendition •of the facts "within the witnesses’ knowledge and observations on the matters testified about.

Plaintiff’s 8th contention is that the Trial Court erred in its definition of “sound mind.” The Trial Court’s definition was:

“By the term ‘sound mind’ is meant that the person making the will must, at the time the will is executed, have sufficient mental ability to understand the business in which he is engaged, the effect of his acts in making the will, the capacity to know the objects of his bounty and their claims upon him, and the general nature and extent of his property.”

The Trial Court then asked the jury if at the time he executed the will he was of sound . mind. The jury answered: “He was of sound mind.” Plaintiff’s objection (among other things) is that the definition fails to instruct on “insane delusion.” We think the definition a correct one under the pleadings and evidence in this case. There was no issue raised as to “insane delusion.” See: 44 Tex.Jur. p. 561; Nass v. Nass, Tex.Civ.App, 224 S.W.2d 280; 149 Tex. 41, 228 S.W.2d 130; In re Hardwick’s Estate, Tex.Civ.App, (nre) 278 S.W.2d 258. The contention is overruled.

All of plaintiff’s points and the contentions thereunder made have been carefully considered, and are overruled.

The judgment of the Trial Court is Affirmed.