author: LEDDY, J. CUBETON, O. J.

text:
    ROSE v. O’KEEFE.
    No. 1263—5658.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Coke & Coke and Thomas G. Murnane, all of Dallas, for plaintiff in error.
    Austin C. Hatchell, of Longview, and John Davis, of Dallas, for defendant in error.
   LEDDY, J.

We adopt the following statement of the case made by the Court of Civil Appeals;

“Plaintiff in error R. W. O’Keefe owned property known as the ‘North Texas Building’ situated in the city of Dallas. The property was incumbered by a valid lien thereon to secure indebtedness amounting to more than $110,000. November 23, 1925, O’Keefe borrowed $36,500 of I. E. Rose, deceased husband of defendant in error, Mrs. Pauline Rose. At the time he borrowed the $36,500, O’Keefe made a promissory note to said I. E. Rose for $40,000, payable three years from its date (said November 23), and stipulating-for interest payable semiannually as it accrued at the rate of 8 per cent, per annum from its said date; and at the same time executed and delivered a deed conveying the property mentioned to a trustee to secure the payment of the note according to its tenor and legal effect. O’Keefe paid the $1,60u interest due on the note May 23, 1926, according to its terms, and the $1,600 interest thereon due November 23, 1926, and on April 6, 1927, in conformity to an agreement between him and defendant in error (said I. E. Rose having died October 7,1926, and defendant in error being the sole devisee of his estate, valued at $400,000, and independent executrix of his will), conveyed said North Texas Building property to herthe consideration of such conveyance being the cancellation of the $40,000 note, on which additional interest amounting to $1,200 had accrued, the payment of about $4,000 taxes due on the property, the payment of $2,774.65 in, cash on his (O’Keefe’s) account, and the assumption by her of the payment of his said indebtedness of about $110,000 and $3,300 interest accrued thereon secured by said first lien on the property. This suit by O’Keefe against Mrs. Rose, as an individual and as executrix aforesaid was on the theory that the contract covering the $36,500 loan was usurious within the meaning of the statute (title 79, R. S. 1925 [articles 5069-5074]), and that he therefore was entitled to recover of Mrs. Rose double the amount of the interest he paid in performance thereof, or, if he was not entitled to recover double the amount of such interest, was entitled to recover back the sum he had paid as interest.
“Mrs. Rose’s contention at the trial 'was that the contract covering the $36,500' loan, evidenced by the note and trust deed referred to was not usurious, and that O'Keefe had not paid to her and her deceased husband on account thereof interest in excess of the amount they were lawfully entitled to demand and receive of him. She contended, further, that, if the contract covering- said loan was usurious, and if O’Keefe had paid usurious interest thereon, his claim on account thereof was satisfied in the transaction wherein he conveyed the building referred to to her, and further, that O’Keefe wa§ estopped from claiming the liability he was asserting against her.
“It appeared from evidence heard at the trial that in the negotiations for the loan of $36,500 O’Keefe acted by his agent, J. W. Ryan, and the jury found that Rose acted by his agents, J. R. Eldridge and F. L. Pay-ton. The jury found further, in response to an issue submitted to them, that ‘in executing the deed and in cancelling the note in April, 1927 (quoting), it was the intention of plaintiff R. W. O’Keefe that all the matters in controversy between the parties, including the usurious interest claim, if any, should be settled and satisfied by such transaction.’' It was on the finding of the jury set out, it seems, that the court rendered judgment denying O’Keefe a recovery of anything and in Mrs. Rose’s favor for costs.”

The Court of Civil Appeals held that the submission of the issue as to whether O’-Keefe’s claim for usurious interest had been compromised and settled by the conveyance of the building to Mrs. Rose- was not warranted by the pleadings or the evidence. Under this view it reversed the judgment of the trial court and rendered judgment in favor of O’Keefe against Mrs. Rose for $12,609, this sum being double the amount of the alleged usurious intere'st.

The fifth paragraph of the answer of plaintiff in error set forth in detail the transaction by which she purchased from defendant in error the building in consideration, among other things, of the cancellation of the $40,000 note executed by defendant in error. Then followed these averments: “These defendants further say that by virtue of the facts set forth in paragraph 5 herein they have fully paid and satisfied any. and all claims pretended or otherwise that1 the said plaintiff may have against the said I. E. Rose and these defendants, and these defendants plead that accord and satisfaction has been had .and taken place, and that all claims of every kind arising out of said Forty Thous- and Dollars ($40,000) insofar as the said Rose, deceased, and these defendants are concerned, have been fully satisfied and discharged; that no recovery can.now be made of these defendants or any of them.”

We think this pleading was clearly sufficient to pi-esént thé issue as to whether the' de-' fendant in error’s claim for usurious interest was settled by his conveyance.of the building to Mrs. Rose. The question then arises: Was there any evidence to sustain the jury’s finding upon such issue?

Mr. O’Keefe on cross-examination testified as follows: “I wanted to pay my debts was the reason I wanted to sell this property to Mrs. Rose. There was a first lien against this property 'something- like $125,000; I don’t think this note was due; notices had not been posted to sell the property. I don’t know it if they had been posted. The indebtedness I wanted to pay is what is shown by the paper, it was around a $100,000 and I wanted to make clearance of it somehow or other. 1 wanted to get relieved of that large indebtedness. Mr. Joe Ryan is my son-in-law and managed this building for me. I asked him to sell this property to whoever he could. He later advised me that he could sell this property to the Rose Estate by cancelling this note, this note was cancelled and I received in addition thereto, around $2100.00 or $2200.-00, I think it was $2100.00; I think it was $2100.00;: I don’t think it was above $2100.00; maybe it was over $2100; I talked to Mr. Ryan over the telephone once or twice about being willing to convey the property to Rose Estate and cancellation of the $40,000.00 note on condition that I should be paid Twenty-one Hundred odd Dollars; I do not remember how many telephone conversations we had, whether or not he telephoned or wrote about it;' anyway we had either written or oral conversation when I agreed to the contract and authorized Mr. Ryan to go ahead and close it up. When I closed, it up it was my desire to settle everything that existed between me and, the Hose estate; in executing the deed conveying the property to Mrs. Rose both my wife and myself executed the deed while in Dallas. I executed the deed for the sum of $2100:00 and the cancellation of the indebtedness and supposed by doing that I settled all controversy that existed between me and the Bose Estate.”

On redirect examination he testified: “In answering * * * this morning, I meant by saying settlement that is the items that were considered in the settlement, was the assumption of the $110,000.00' and the cancellation of the $40,000.00 note, and as far as clearing up anything else that didn’t enter by mind. ⅜ ⅜ * j never settled or intended at any time to settle, the usurious payment question.”

Mr. Reid, witness for defendant in error, who^ handled the trade with Mrs. Rose, testified:' “It -was a satisfactory adjustment; Mr. Ryan told me this was an adjustment of all differences between O’Keefe and the Roses.”

It was undisputed that Mr. Ryan was acting as the duly authorized agent of O’Keefe in negotiating the sale of the building to Mrs; Rose. ' , .

The testimony was conflicting on the issne as to the market value of the building at the time it was conveyed to Mrs. Bose. There was very substantial evidence offered by plaintiff in error showing that such value was not in excess of $150,000.. In fact, some of the testimony tended to show its value to be as low as $125,000. Taking into consideration the interest on the first lien, delinquent taxes in the sum of $4,000, the unpaid current operating expense of the building amounting to $2,274, and the allowance of a portion of the April rents in the sum of $500 to O’Keefe, it appears that Mrs. Bose paid approximately $158,000 for the fcuilding, or $8000 more than it was shown to be worth by the testimony ‘of several competent witnesses.

No request was made for a finding as to the market lvalue of the building at the time it was conveyed to Mrs. Bose. This being a subsidiary issue, it will be presumed in support of the judgment that the court found Mrs. Bose paid for the building a sum above its market value in excess of the amount of the alleged usurious interest. Article 2190, R. S. 1925.

The law is settled in this state that a contract which provides for usurious interest may be purged of the taint of usury by a subsequent agreement of the parties if such agreement be based upon a new or independent consideration. Gilliam v. Alford, 69 Tex. 271, 6 S. W. 757; Cotton States Building Co. v. Jones, 94 Tex. 497, 62 S. W. 741; Stout v. Nat. Bank, 69 Tex. 384, 8 S. W. 80S; Whitlow v. Culwell, 16 Tex. Civ. App. 266, 40 S. W. 642.

Mr. Webb, in his Work on Usury, says: “As said by an accurate legal writer on the subject: ‘It is not essential that the amount of the usury paid should actually be returned to the debtor; it is sufficient if he receives a valuable and bona fide consideration for the settlement and release of the usury; as where the debtor in payment of an usurious debt conveys property to the creditor at a price clearly exceeding its real value in consideration of the releasing the usury.’ ”

The same principle is recognized in Bomar v. Smith (Tex. Civ. App.) 195 S. W. 964, 975, in which Judge Talbot, discussing the elimination of usury by subsequent settlement, says: “The precise question does not seem to have been decided by any appellate court of this state, but we think the tenor of our decision indicates that, in order for a usurious contract to be purged of its usury by a new contract into which a new consideration has entered, the A-alue of such consideration must be equal to the full amount of the usury.”

It will be noted that upon cross-examination O’Keefe testified -clearly and positively that in conveying the property to Mrs. Bose it was his intention to settle and liquidate all matters and claims between them. This testimony, standing alone, was not only sufficient to sustain an affirmative finding by the jury on the issue of settlement, but absolutely demanded such a finding. It is true the witness on redirect examination attempted to modify or explain his statement in regard to 'this matter. This merely presented an inconsistency in his testimony upon the point, which, like any other conflict, was within the peculiar province of the jury to reconcile. Texas & N. O. Ry. Co. v. Buch (Tex. Civ. App.) 102 S. W. 124; Austin Fire Insurance Co. v. Adams-Childers Co. (Tex. Com. App.) 246 S. W. 365; Young v. Blain (Tex. Com. App.) 245 S. W. 65, 66.

In the last-cited case there was involved a contradictory statement in the testimony of one of the parties to the suit. It was decided that this was a matter for the jury to determine. In passing upon the question the court stated: “But, even if there be an inconsistency in her testimony, the jury had the right to accept portions of it and reject other parts. It is their peculiar privilege to adjust inconsistencies in the evidence of a witness in case they develop.”

The view expressed by Mr. O’Keefe on cross-examination was corroborated by his Avitness Keid, who testified that Mr. Byan, the duly authorized agent of O’Keefe in negotiating the sale of the building to Mrs. Bose, stated to him during the course of the transaction 'that the adjustment being made was a satisfactory one and that it was “an adjustment of all differences detween O’Keefe and Bose.”

In view of the condition of the record, as above shoAvn, we are unable to say that it does not contain sufficient testimony to support the jury’s finding that O’Keefe intended to settle and adjust all claims, including the usurious interest, with Mrs. Bose, by the conveyance of the building for the consideration agreed upon.

Defendant in error complained by proper assignment in the Court of Civil Appeals, and here complains, of the action of the trial court in refusing to permit him to testify that it was not his intention to settle his claim for usury by the conveyance of the building to Mrs. Bose. Error in refusing to permit the witness to answer the question propounded is, a harmless one, as the record shows lie did in fact testify that he had no intention of settling his claim for usury by the conveyance of the property to Mrs. Rose.

AVe recommend that the judgment of the Court of Civil Appeals be reversed, and the judgment of the trial court affirmed.

CUBETON, O. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: SHARP, J. CURETON, C. J.

license: Public Domain

text:
    THE LEADER, Inc., et al. v. ELDER MFG. CO.
    No. 1470—5708.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    Wynne & Wynne and Angus G. Wynne, all of Kaufman, for plaintiffs in error.
    Carter & Berwald and Elihu E. Berwald, all of Dallas, for defendant in error.
   SHARP, J.

The Elder Manufacturing Company instituted this suit in the county court of Kaufman county against The Leader, Inc., to recover upon four checks aggregating $302.40, and a writ of attachment was at the same time issued and placed in the hands of the sheriff for execution. The writ was executed and return made thereon. Thereafter a re-plevy bond was tendered to the sheriff and accepted by him. A motion to quash the affidavit and bond was made by William Gold-stein, and the trial court entered judgment quashing the affidavit and bond in attachment. The record shows that the Elder Manufacturing Company filed an amended petition on the same day that the motion to quash the affidavit and bond were filed and alleged that it complained of The Leader, Inc., and The Kemp Leader, Inc., alleging them to be one and the same.

• The trial court gave judgment for the Elder Manufacturing Company against The Leader, Inc., but quashed the affidavit and bond in attachment. An appeal was made to the Court of Civil Appeals and the judgment of the trial court was reversed, and judgment rendered that the Elder Manufacturing Company have judgment against the sureties on the re-plevy bond for the full amount of the judgment rendered in favor of Elder Manufacturing Company against The Leader, Inc., 25 S.W.(2d) 274. Writ of error was granted.

Plaintiffs in error contend that it affirmatively appearing from the record that the bond and affidavit in the attachment proceedings were quashed, and that the replevy bond was never introduced in evidence, but on the contrary was expressly excluded, the Court of Civil Appeals erred in rendering judgment against the sureties on the replevy bond, based upon evidence not admitted upon the trial, for since the Court of Civil Appeals has no power to find facts in the first instance, it could not enter judgment against the sureties on the bond which was excluded from evidence.

It is undisputed, as shown by the record, that the replevy bond was never introduced in evidence, but, on the contrary, plainly shows that the bond was excluded. The rule is well established in this state that the Court of Civil Appeals has no power to find fadts in the first instance, and under R. S. 1925, article 1856, authorizing that court on reversal of a judgment to render such a judgment as the trial court should have rendered, “except when it is necessary that some matter of fact be ascertained,” where a judgment is reversed the Court of Civil Appeals cannot render a judgment for the other party based on evidence not admitted on the trial, but must remand the case to the trial court. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17; Eidson v. Reeder et al., 101 Tex. 202, 105 S. W. 1113; Abbott Oil Co. v. San Antonio Brewing Ass’n, 104 Tex. 574, 141 S. W. 517; Nast v. S. A. U. & G. Ry. Co. (Tex. Com. App.) 261 S. W. 1011.

It is also equally well settled in this state that where an attachment of property replevied by defendant is quashed, the. bond shóuld be discharged. Kildare Lumber Co. v. Atlantic Bank, 91 Tex. 95, 41 S. W. 64; Mitchell & Co. v. Bloom et al., 91 Tex. 634, 45 S. W. 558; Hayes v. Davis (Tex. Civ. App.) 18 S.W.(2d) 704.

We sustain this assignment.

Plaintiffs in error further contend that the Court of Civil Appeals erred in holding that, William Goldstein, as a surety on the replevy bond, had no right to attack the sufficiency of the affidavit and bond in attachment, under which the property replevied was attached; that right being given exclusively to the defendant.

The record further discloses that William Goldstein was cited as president of The Leader, Inc.; that the replevy bond was signed by The Kemp Leader, Inc., by William Goldstein, secretary and treasurer, as principal, and by William Goldstein as one of the sureties. It also shows that in the motion filed by Goldstein to quash the affidavit and bond it is not stated whether the motion was filed on behalf of The Kemp Leader, Inc., or by him as surety. The trial court in its findings says that the findings were made and filed on defendant's motion to quash the attachment proceedings, thus showing that the court considered the motion filed on behalf of The Leader, Inc. The court quashed the affidavit and bond.

The Court of Civil Appeals evidently construed the motion filed by Goldstein to quash the affidavit and bond as being filed by him as surety and not for The Leader, Inc., and held that, being a surety on the replevy bond, he had no right to attack the validity of the affidavit and bond. To sustain its conclusions the Court of Civil Appeals cite the following authorities: Goodbar v. Bank, 78 Tex. 461, 14 S. W. 851, 852; Roos v. Lewyn, 5 Tex. Civ. App. 593, 23 S. W. 450, 24 S: W. 538; Hart v. Jopling (Tex. Civ. App.) 146 S. W. 1075; Calvert v. Bennett (Tex. Civ. App.) 286 S. W. 303.

Let us briefly review the authorities cited by the Court of Civil Appeals and ascertain if they support the conclusions of that court. The case of GooSbar, White & Co. v. National Bank involved the right of subsequent attaching creditors to question the sufficiency of the affidavit for attachment, and it does not appear that the question of suretyship was involved in that opinion. Chief Justice Stay ton held:

“The statute provides that ‘every original attachment issued without affidavit and bond as herein provided shall be abated on motion of defendant.’ Rev. St. art. 159.
“In accordance with this statute, the right to abate an attachment, on account of defects in affidavit or bond, has been restricted to defendants, and has not been allowed to creditors subsequently causing the same property to be attached. Nenney & White v. Sehluter & Oo., 62 Tex. 328; Bateman v. Ramsey, 74 Tex. 592, 12 S. W. 235.”

An inspection of the Revised Statutes of 1925 discloses that the Legislature omitted that article entirely from the codification of the laws of this state, hence the holding of the Supreme Court in that case based on the foregoing article, which is no longer in the statutes, is not controlling or applicable in this case.

The case of Roos v. Lewyn et al. involved the question that where an attachment has been merged in a judgment, a claimant of the attached property cannot in a trial of the right of property question the sufficiency of the affidavit on which the attachment issued, and, if he could, it would have to be by a special plea in the nature of abatement before pleading to the merits. We have no difficulty in distinguishing that case from the case at bar. ,

The case of Hart v. Jopling involved the proposition that the truth of the allegations of an affidavit for attachment cannot be controverted to abate the writ, and the sureties on a bond in replevy of attached property cannot procure abatement of the attachment writ for any falsity in the affidavit for attachment. It is evident that the rule announced in that case is not applicable to the facts in this case. The attachment in the case of Calvert v. Bennett was never quashed, and the particular question here under consideration was not involved.

The view we take of this case renders the question immaterial as to whether the motion filed to quash the affidayit and bond by William- Goldstein was filed for The Leader, Inc., or for himself as surety on the re-plevy bond. In our opinion, the sureties upon a replevy bond in attachment proceedings have a right to protect their interests by moving to quash the affidavit and bond, as was done in this case, and by interposing a defense to the suit. The names of the sureties on a replevy bond may not appear on the docket as parties to the suit, but we think that in view of their interests and connection with the suit, they have a right to question the sufficiency of the affidavit and bond in the attachment proceedings. This question has been settled by the decisions of this state. Burch v. Watts, 37 Tex. 135; Hodde v. Susan, 58 Tex. 389; Mitchell & Co. v. Bloom, 91 Tex. 634, 45 S. W. 558.

In the case of Ilo-dde v. Susan, supra, Chief Justice Willie says: “Here, then, we have all the characteristics of a party to a suit combined in such surety. This court has heretofore held that a surety on an attachment bond might move to quash it (Burch v. Watts, 37 Tex. 135), and that a surety on the bond of a defendant in a distress warrant suit might take a writ of error to the supreme court. Weir v. Brooks, 17 Tex. 638.”

The record further shows that the trial court heard testimony upon motion to quash the affidavit and bond and found that the bond and affidavit had been materially altered after they had been executed and filed with the clerk of the court. We do not feel justified in disturbing the action of the trial court in quashing the affidavit and bond. It follows from what has been said that the Honorable Court of Civil Appeals erred in reversing the judgment of the trial court and rendering judgment in this case.

We, therefore, recommend that the judgment of the Court of Civil Appeals be reversed and that the judgment of the trial court be in all respects affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, ds recommended by the Commission of Appeals.


author: SHORT, P. J. CURETON, C. J.

text:
    CITY OF WICHITA FALLS v. SULLIVAN et ux.
    No. 1266—5670.
    Commission of Appeals of Texas, Section B.
    June 10, 1931.
    Thelbert Martin, of Wichita Falls, for plaintiff in error.
    W. J. Townsend, of Lufkin, for defendants in error.
   SHORT, P. J.

The defendants in error, who are husband and wife and the owners of a block of land in the city of Wichita Falls, upon which they had several houses, in one of which they lived, the others being rented, recovered a judgment against the plaintiff in error in the sum of $1,050 in the district court as damage to their property from surface flood waters caused to be thrown thereon by the alleged negligent acts of the plaintiff in error in grading certain streets in the vicinity of the property damaged. From this judgment the plaintiff in error carried the case to the Court of Civil Appeals at El Paso, where the judgment of the district court was reversed and judgment rendered in favor of the defendants in error for $259, being the amount of depreciation in the rental value of the property. 22 S.W.(2d) 982.. The writ of error was granted upon the conflicts alleged.

The Court of Civil Appeals in its opinion, after stating that the property was acquired by the defendants in error before the streets were graded in that section of the city, makes this statement of the facts and the result of the suit:

“About January, 1927, the city graded the streets in that section. No culverts or drainpipes were placed at the' street intersections surrounding appellees’ property.
“In consequence of the grading and failure to place culverts or drainpipes at the street intersections, the natural flow of the water was obstructed, the water concentrated and caused to back and stand on appellees’ land after rains.
“Appellees brought this suit against the city of Wichita Falls to recover damages alleged to have been sustained by the facts stated.
“All issues raised by the pleadings and evidence were found by the jury in plaintiffs’ favor.
“Upon the findings, judgment was rendered in plaintiffs’ favor for $1,050 ; being $700 for depreciation in the value of the property, $250 for loss of rentals, and $100 for ‘discomfiture’ ‘by reason of inhaling obnoxious odors’ ‘by reason of said premises being overflowed.’ ”

The plaintiff in error, in its several assignments of error, presents substantially the same legal question in this case which it presented in the case of City of Wichita Falls V. W. M. Maudlin and wife, 39 S.W.(2d) 859. The substance of these assignments is that plaintiff in error, in grading the streets in question, was doing so for the benefit of the public in general, and was acting in a governmental capacity and exercising a governmental function, and was In no way legally liable to the defendants in error for the alleged dam^ ages, or any, of them.

We.have discussed this question sufficiently in the Maudlin Case, reaching the conclusion that none of these assignments should be sustained. We refer to the opinion in the last-named case for our views on this question. The other assignments of error are, in our opinion, without merit, and all of them should be overruled.

We recommend that the opinion of the Court of Civil Appeals, reversing the judgment of the district court and rendering a judgment for $250, in favor of defendants in error, be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


author: LATTIMORE, J. HAWKINS, J.

text:
    Ex parte HARRIS.
    No. 13735.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied June 24, 1931.
    See, also, 28 S.W.(2d) 813, 70 A. L. R. 1066.
    Scott, Casey & Hall and Barret Gibson, all of Marshall, for appellant.
    John Taylor, Co. Atty., of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

At a hearing before the Honorable Reuben A. Hall, district judge, upon a habeas corpus petition alleging restraint in general terms, appellant was remanded to custody, and has appealed to us. He was under arrest by-virtue of a capias issued upon a mandate-which followed the affirmance of a felony-judgment against him.

As far as we comprehend the complaint, of appellant, it was that the indictment against him was void because a man sat on. the grand jury who could not read and write; also because another man was present at, and-participated in, the deliberations of said' grand jury who wSs unauthorized so to do.' We cannot agree with either contention as presented in this record. Neither proposition was so supported’before the trial court as to cause us to believe he was wrong in his remanding order. Williams, the alleged illiterate grand juror, was the only witness offered on the question of his ability to read and' write. Answering questions, he said: “I can read and write a little bit. * * * I can read ordinary typewriting or printing from studying a little bit; I have to'get my glasses and study it over a little bit before I can read —recount of my eyes. * * * I can sign my name. ⅜ * * It has been a long time since I tried to write a letter. * * * I signed the grand jury report., * * * I can ■read and write sufficiently to get money from tije bank.” Neither any statute of this state nor any decision known to us makes ineligible pro tanto for grand jury service a man who can read and write as this witness testified he could.

On the other point made, we note that the transcript of the proceedings had in the trial court starts with the admission or agreement of both the state and defendant, as follows: “That the grand jury was empaneled March 11, 1929, * * * That the grand jury adjourned * * * March 15/ 1929.” It is true that following the agreed statement each side introduced various matters, and that the state introduced what is called a “Report of Grand Jury,” of date March 15, 1929, which contains the statement that “the grand jury has permission to recess subject to call at any time during the March term 1929 of this court,” but the record here is silent as to who made such report or how tho quoted statement came to be a part of same, and said document, if pertinent, was primarily for construction by the trial court in the light of the surrounding facts. All these matters were before the trial court and counsel for both the state and appellant, who had access to them. With this report of the grand jury at hand, both the state dnd appellant agreed before the trial court that the grand jury had adjourned. Article 872 of our Code of Criminal Procedure plainly provides that, when the grand jury is ■discharged for the term, it may be reassembled at any time during the term, and vacancies therein may be filled. The matter has been fully discussed in Trevinio v. State, 27 Tex. App. 372, 11 S. W. 447; Matthews v. State, 42 Tex. Cr. R. 31, 58 S. W. 80, and Millikin v. State, 107 Tex. Cr. R. 332, 296 S. W. 547. It appears here that, when the grand jury were called together, one of the men who had served thereon was absent. Of course, had this been a reconvening of the original grand jury after a temporary recess, there would have been no need for summoning another man, or completing the panel, since, under the law, the remaining eleven would and could have functioned as a grand jury. Not so if they were re-impaneled after being discharged for the term. ' See Trevinio v. State, supra. Since a grand jury cannot be legally impaneled with more or less members than the twelve fixed by statute, it was imperative, if they were called back after discharge for the term, that there be twelve present and impaneled — and the act of the court in causing the summons and impanelment of the twelfth man was in entire accord with the precedents and statutes.

Appellant primarily — and the state in reply — each presented to this court affidavits which, out of desire to settle the whole controversy, we considered in preparing an opinion heretofore handed down, but which affidavits should not have received our attention, and said former opinion is for that reason withdrawn. The jurisdiction of this court in this case is involved no further than to pass on the questions presented to, and passed on by, the court below upon the hearing following the granting of the writ. The matters contained in said affidavits should have been investigated, presented, and decided in the trial court, and, upon the record there made, the appellate jurisdiction of this court being properly invoked, they might have all been before us.

Substituting this for the former opinion, which is withdrawn, and giving to appellant the right, if he desires, to file a motion for rehearing herein as in the first instance, the judgment of the trial court is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Relator still insists that the trial court had no right to re-impanel the grand jury, but that, if he did have such right, then nothing appears in the record to show that it was ever re-impaneled or who composed the claimed re-impaneled body which returned the indictment against relator.

We may be confused as to what the record before us shows, but believe it reveals the following: Eirst, that the grand jury was originally impaneled on March 11, 1929. In the order of such impanelment is contained the names of the twelve men composing the grand jury, which included one McDaniel. Second, the grand jury was re-impaneled on April 8th. The order then recites: “All of the grand jurors for the March term, 1929 being present in open court, with the exception of G. M. McDaniel, who is out of the city, the court instructed the sheriff to select one man to complete the body and O. G. Hope was substituted, and all the grand jurors were sworn by the court and instructed as to their duties, who afterwards retired for deliberations.”

From the foregoing recitals it seems clear that the grarid jury which was re-impaneled was composed of eleven men who were on the original grand jury; the twelfth man being Hope, who was substituted for McDaniel. The fact that all the grand jurors were again sworn, including Hope, and instructed as to their duties, seems to justify the conclusion that the grand jury was. re-impaneled.

It must be confessed that the record is somewhat confusing by the use of the terms “recessed,” “adjourned,” and “re-convened,” as they were applied to the grand jury in question. But it must be borne in mind that the regularity of the court’s action is to be presumed, and that the burden is on relator to show the contrary. The court’s action in remanding relator must be presumed to have been based upon a finding that the grand jury which returned the indictment against relator was a legally constituted body, and we do not feel authorized under the record before us to' hold to the contrary.

The motion for rehearing is overruled.


author: LATTIMORE, J. MORROW, P. J.

text:
    SNYDER v. STATE.
    No. 14432.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Rehearing Denied June 17, 1931.
    Baker & Adams, of Dallas, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for- the State.
   LATTIMORE, J.

Conviction ■ for theft; punishment, two years in the penitentiary.

The indictment in this case contained two counts, one charging theft of an automobile and the other charging the receiving and concealing of said property. The court below submitted both counts to the- jury, and they returned a general verdict of guilty, which the court applied to the first count in the indictment and adjudged appellant guilty of the theft of an automobile of the value of more than $50. The, sentence imposed followed the judgment.

• We find in the record three bills of exception. The first complains of the refusal of a motion to quash in which appellant attacked the indictment because it did not name or describe the stolen property further than to state that same was an automobile. We think this sufficient under all the authorities.

The second bill sets up that appellant presented five special charges, each of which was refused by the court, to which appellant excepted. The special charges referred to are not set out in bill of exception, nor do we find them anywhere in the record. Such a bill calls for no further consideration at our hands.

The remaining bill complains of the overruling óf a motion in arrest of judgment, in which sáme alleged defect in the indictment was set up, as is above mentioned. We perceive no error in the overruling of said motion.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Pointing to certain exhibits attached to his motion for new trial, the appellant claims in his ¡motion for rehearing that in stating that there were no special charges requested this court was mistaken. An examination of what is termed Exhibit B, the documents to which the appellant refers in his motion, bear no evidence .showing at what stage of the trial they were presented to the court; neither do they bear the signature of the appellant or his counsel. They are, however, marked “Refused” under the signature of the judge presiding. In the main, they relate to the contention of the appellant that the circumstances -were sufficient to require the court to submit the law of accomplice witness with reference to the evidence given by the witness Hill. The law set forth in articles 658, 659, 660, and 666, C. C. P., makes manifest the will of the Leg islature, as enacted in the statutes, that to warrant consideration on appeal the action of the trial court in refusing to give a special instruction to the jury, the request therefor shall be presented before the court delivers his charge to the jury. In the construction of these statutes, the uniform holding of this court is that, in order to be considered upon appeal, the record must show that the special charge was presented to the trial judge before the argument began and before the court’s charge was given to the jury. Nothing is found in the record on the' present appeal mating evident that there was compliance with the statutory directions mentioned.

The exhibits mentioned, attached to the , motion for new trial, are not in a condition to invoke the consideration of this court as attacks upon the charge of the trial court. See Jones v. State, 74 Tex. Cr. R. 205, 167 S. W. 1110, and numerous other cases collated in Vernon’s Tex. Cr. Stat. 1916, vol. 2, p. 525, note 63, wherein it is said: “Defendant’s requested charges, not shown to have been presented to the court or acted upon by it before the charge and argument, could not be considered on appeal.” See, also, Vernon’s Ann. Tex. C. C. P. 1925, vol. 2, pp. 266, 267, notes 11 and 12.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    McDONOUGH v. STATE.
    No. 14240.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    Rehearing Denied June 24, 1931.
    Sehenck & Triplett, of Lubbock, for appellant. ' ‘
    Lloyd W. pavidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for three yeaz-s.

Officers followed appellant along a street in the town of Plainview, and, when he stopped the automobile in which he was driving, instituted a search. Appellant drew a pistol, but was immediately disarmed. The 'search disclosed 30 gallons of whisky.

Appellant did not testify in his own behalf. His wife testified that appellant’s mother used whisky for medicinal purposes. Appellant’s mother testified that she had asked appellant to buy the whisky for her for use in massaging her body and as medicine to be taken internally. It appears from the testimony of the mother that she was 80 years old and in ill health.

There is no question as to the legality of the search.

Bill of exception No. 1 brings forward objections to questions propounded to appellant’s wife by the district attorney. In each instance the court sustained the objection, and the witness did not answer the question. The court qualifies the bill of exception with the statement that the questions were asked 1 in the usual manner, and- that appellant’s objections were promptly sustained. We deem it unnecessary to set out the numerous questions brought forward in this single hill of exception, “it occurs to us that the hill of exception is multifarious, and not entitled to consideration. However, we have examined the questions of which complaint is made, with the view of determining whether the questions, within themselves, were calculated to prejudice appellant. We find nothing in the questions of a prejudicial nature.

Immediately before the state offered its testimony, appellant’s attorney announced to the court, in the presence of the jury, that appellant admitted that the officers found 30 gallons of whisky in the automobile in which he was riding, and further admitted that he was transporting said liquor. Thereafter, in developing its case, the state identified the whisky taken from appellant’s automobile and introduced it in evidence. Appellant objected on the ground that he had admitted that he transported the whisky and that its introduction would be prejudicial to his rights. The court properly admitted the whisky. Kelly v. State, 102 Tex. Cr. R. 395, 278 S. W. 449; Robinson v. State, 99 Tex. Cr. R. 460, 270 S. W. 175; Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant files a brief motion for rehearing in which are found no citation of authorities, no discussion of any supposed error in the original opinion, and we see no reason for indulging in any extended discussion thereof.

The motion for rehearing will be overruled.


author: HAWKINS, J. DATTIMORE, J.

text:
    CHAPMAN v. STATE.
    No. 14269.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Rehearing Denied June 24, 1931.
    Nolan Queen, of Weatherford, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for manufacturing intoxicating liquor; punishment assessed being two years’ confinement in the penitentiary.

The motion for new trial was overruled on October 20, 1930, at which time notice of appeal was given, and ninety days allowed for filing statement of facts and bills of exception.

The statement of facts was not filed in the lower court until the 26th day of .January, 1931, which was ninety-eight days after notice of appeal. Under the provisions of article 760, C. C. P. (1925), subdivision 5, the statement of facts cannot be considered because of the delayed filing.

, There appears in the transcript three bills of exception"; one complaining of the denial of continuance and the other two complaining of the reception of certain evidence. It is impossible to appraise any of these bills in the absence of a statement of facts, and, not being able to consider the statement of facts, the bills are ineffective.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

By supplemental transcript filed in this record it is now shown that appellant’s motion for new trial was overruled on October 29, 1930, and that a statement of facts was filed within the ninety days thereafter. The motion for rehearing will be granted to the extent of considering said statement of facts and the bills of exception dependent thereon.

As to the complaint of the overruling of the application for continuance, same shows no diligence as to the absent witnesses. The-indictment was returned the 3d day of October ■ 1930. No application for process was made until the 14th of said month. The application for continuance shows that the witnesses were not served. No process, or return thereon, appears attached to said application. No affidavit from either of the witnesses is attached to the motion for new trial.

Another bill complains of the admission of the testimony of Mr. Reynolds to the effect that, after the arrest of appellant, he poured out a quantity of whisky. There seems a curious idea in the minds of men charged with violation of what are commonly called the liquor laws of this state to the effect that, if they can destroy the liquor found in their possession, it will somehow aid them in escaping prosecution or conviction. The fact that this defendant endeavored to destroy the testimony against him, or the liquor that was found in his possession at the time of his arrest, would be provable. Any attempt to run witnesses out of the country or to destroy inculpatory evidence is admissible. The bill shows no error.

The third bill of exception brings forward appellant’s objection to proof that he and those with him were seen to load into a car on the morning before his arrest what looked to be sugar. The testimony shows that a quantity of sugar was found in the vicinity of the still.

Appellant’s claim, if we understand the record, is that he was employed by one Hicks to do farm work. He said that Hicks came to his place on the morning before his arrest and employed him. Witnesses testified that they saw appellant and Hicks load a couple of white sacks of what the witnesses took to be sugar; said sacks containing about one hundred pounds each. At the time of his arrest-on the premises of Hicks, appellant was in the garage where there was_a still in operation — whisky was running out of the coil and dripping into kegs. The full paraphernalia of a still, together with mash, sugar, dried fruit, yeast cakes, etc., were in the garage. Two one hundred pound sacks of sugar were among the articles. We think the court properly admitted this testimony.

We have examined the facts, and believe them to justify the conclusion of the jury that appellant was engaged in the manufacture of intoxicating liquor at the time the officers found him in said garage. He and Hicks were in there together. Appellant .talked to the officers; made threats against them in case he was reported and convicted.

The motion for rehearing is overruled.


author: CHRISTIAN, J. MORROW, P. J. LATTIMORE, J.

text:
    HARRIS v. STATE.
    No. 13733.
    Court of Criminal Appeals of Texas.
    Jan. 7, 1931.
    State’s Rehearing Denied June 17, 1931.
    Roy Johnson, of Galveston, for appellant.
    Owen D. Barker, Co. Atty., of Galveston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery by assault; the punishment, confinement in the penitentiary for five years.

Appellant is a negro woman, who,.according to her own testimony, was a prostitute at the time she was charged with the robbery of Arthur Leiser, a white man. In front of appellant’s door was a gallery, which, according to the testimony of the arresting officer, was about “shoulder high,” with five or six steps. Going from the sidewalk in front of the house to the bottom step of the gallery, one would have taken six or seven steps. According to the testimony of the injured party, it was just within the door fronting the gallery that appellant robbed him. Touching the assault, we quote the testimony of Leiser as follows:

“I walked two and one-half blocks and this girl right here grabbed me and she sai(J ‘Where are you going, honey?’ I said ‘It’s none of your business,’ and she grabbed me by the waist and started scuffling, and it took me by surprise. It was like lightning struck me, and before I knew it she had me backed in the door, and she reached in my pocket and took the $80.00. I didn’t miss it, but my clothes were all tom loose, and she put the pocket-book back, and I'got about as far as from me to you (about ten feet away), and I looked and I said ‘My God, that woman has my money,’ and I ran back there, and as I hit the front door she and some other girl came out. She said ‘You are a damned liar. You haven’t any money.’ I said ‘If you don’t give me my money I am going to get a policeman.’ She said ‘Go get a policeman. I will tell him you stayed with me.’ ”

On cross-examination, the witness testified that appellant did not drag him rip the steps and into the room. He declared that she had him up there before he realized anything had happened. He further testified that his arms and legs were free but that appellant held him around the waist. It appears further from his testimony that lie did not discover that his money was gone until he noticed that his poeketbook was crossways in his back pocket. The transaction occurred about 11 o’clock in the morning. The arresting officer came upon the scene in a few minutes after the alleged assault. He searched appellant but found no money. The house' was not searched. According to the testimony of this witness, he being a state’s witness, appellant stated to him that she had not taken the injured party’s money. She said that he had “stayed with her,” having come into her room voluntarily. The witness further testified that Reiser, the injured party, told him at the time that appellant took hold of him as he was passing her house and told him to come into 'her room; that as she was pulling his coat he went with her; that as he got into the "room appellant felt around the back of his pants; that she took his poeketbook out of his back pocket, extracted Ms money, and replaced the poeketbook. On the examining trial, the injured party testified that appellant grabbed him by the arm, with the statement that she would show him “a good time for four bits”; that he jerked away, and she grabbed him around the waist; that before he knew it appellant had him right in'her doorway. He further testified on the examining trial that he did not feel appellant get his poeketbook, and did not learn that she had gotten it until he found the purse crossways •in his.back pocket. The bed in appellant’s room showed that it had been recently occupied. There was a bowl nearby, with water in it.

Appellant strenuously insists that the evidence is insufficient to support a conviction for robbery by assault. In Reese v. State, 91 Tex. Cr. R. 457, 239 S. W. 619, it was said that the actual or threatened violence to the person antecedent to the robbery is a distinguishing element between “robbery” and “theft.” In Rylee v. State, 99 Tex. Cr. R. 482, 236 S. W. 744, Judge Hawkins, speaking for the court, said that the degree of force is immaterial so long as it is sufficient to compel one to part with his property. In view of the conflict found in the testimony touching the assault, we are unwilling to give our sanction to a judgment convicting appellant of the offense of robbery. The actual violence to the injured party antecedent to the alleged robbery is not, in ouy opinion, sufficiently demonstrated by the testimony found in the record. The res gestee statement of the injured party, testified to by the arresting officer as a state’s witness, is in direct conflict with the testimony given by the injured party on the trial. If believed, it warranted the conclusion that he voluntarily followed appellant into the room when she took hold of his coat. Moreover, there is serious conflict between the statement given by Reiser on the examining trial touching the assault and his testimony given on the main trial. Both statements were made under the ‘sanction of an oath. In the light of the entire record, we are unable to reach the conclusion that the evidence is sufficient to support the conviction.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On State’s Motion for Rehearing.

MORROW, P. J.

On the trial, the injured party, Arthur Reiser, gave testimony tending to show that the appellant, by the use of force, took $80 in money from him. The arresting officer testified that the injured party made a statement to him immediately after the robbery. The record reflects that this statement was res geste. We quote the statement' as follows: “My testimony is that this man told me at that time, while he and I and Rose Harris were in the room of Rose Harris, that Rose Harris got hold of him by the coat and told Mm to come in, and he said, ‘She pulled my coat and I went in there,’ and he said, ‘After I got in there she kept feeling around my pants, and around the back of my pants.’ 1-Ie said she took Ms pocket-book out of his back pocket and p.ut it back in, and he showed me the empty pocket-book.”

The foregoing statement was received as original evidence. If believed by the jury, it would have warranted the conclusion that the injured party went into the appellant’s room voluntarily and that there was no actual or threatened violence to his person antecedent to the robbery. The appellant testified that the injured party was in her room, but denied that she took his money, and declared that she did not forcibly push him up the steps to her door. She said that she was sitting in her window and called to Leiser, and he came voluntarily into her room. Leiser admitted that he did not discover that his money was gone until he left, and did not know when it was taken. According to his testimony, he found that his pocketbook was crossways in his back pocket, and, upon making an examination, he found that $80 had been taken* therefrom.

The actual or threatened violence to the person antecedent to the robbery is a distinguishing element between “robbery” and “theft.” Reese v. State, 91 Tex. Cr. R. 457, 239 S. W. 619. The degree of force is immaterial as long as it is sufficient to compel one to part with his property. Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744. One of the ingredients of theft from the person is that the theft must,be “committed without the knowledge of the person from whom the property is taken, or so suddenly,as not to allow time to make resistance before the property is carried away.” Article 1438, P. C., 1925. Where force is used, the offense is robbery and not theft from the person. Gallagher v. State, 34 Tex. Cr. R. 306, 30 S. W. 557. We are not prepared to say, after reviewing the testimony, that the version of the injured' party given upon the trial, if believed by the jury, would not warrant the conclusion that the appellant took the property by use of force. On this question, however, we entertain grave doubt. The opinion is expressed that the res gestas statement of the injured party, testified to by the officer, when considered in connection with the appellant’s testimony, would have justified the jury in concluding that no force was used. The jury might have believed from the facts in evidence that the appellant took the property without the knowledge of the injured party; no antecedent force being present. In the latter event, the offense was theft from the person and not robbery. If the appellant was guilty of theft from the person, she should have been acquitted on the indictment presented against her, namely, robbery by assault. The issue having been raised by the testimony, the court should have instructed the jury, in substance, to acquit appellant if they had a reasonable doubt that she committed an assault upon the injured party. Some doubt is entertained touching the identity of the alleged offense; that is to say, whether robbery or theft from the person. The writer does not feel satisfied that the conviction should be upheld on this appeal. Because of the peculiar circumstances- attending the transaction, the apparent conflict between the res gestas declaration of the injured party and his testimony given upon the trial, together with the serious question as to the identity of the offense, assuming that one was committed, the writer is of the opinion that the State’s motion for a new hearing should be overruled.

LATTIMORE, J.

(dissenting).

I cannot agree to the disposition made of this case by the overruling of the state’s motion for rehearing. ' The exceptions to the court’s charge were not apparently presented to the trial court, and are not approved by him, but bear this significant notation apparently made by the clerk of the trial court: “Filed March 20, 1930 as of date February 11,1930.” There is no bill of exception bringing forward any exceptions to the charge. The two special charges which appear in the record bear no certificate, and make no showing as to when presented to the court below, and the refusal of same is not complained of by any bill of exception, and same cannot be considered by this court.

I cannot assent t.o this court’s right to interfere on the facts and reverse, when same show that a man holding a responsible position, having the apparent confidence of his employers, acting in direct pursuance of their instructions at the time of the occurrence forming the basis of this prosecution, who swears to the fact of an assault upon him and the taking of his money by this negro prostitute, and who immediately app'ealed to the authorities and gave testimony before a jury which believed him, and a court who heard and saw the witnesses, and is in a far better position than this court is to judge of their credibility, who doubtless knew the officer who testified to the statement made by the prosecuting witness, contrary to the testimony given by said witness upon this trial, which officer, according to prosecuting witness, refused to search either the defendant or her house on the occasion of the alleged robbery in order to try to recover the stolen money.

Even if the statute did not make the jury the judges of. the credibility of the witnesses and the weight of their testimony, I could not believe, in the light of the testimony in this record, that a man with his wife and little child would go from Galveston to Houston in the morning, take quarters at one of the best hotels in the city, leave there at once to go-see a customer, the route to whose place took him through the negro quarters, and that such man would voluntarily go into the room of a negro prostitute and have carnal knowledge of her, and go at once outside and raise a hue and cry that he had been robbed, thus initiating a matter of disgrace to himself and his family, his reputation and standing, and which would probably cause him to lose his position. This man testified that he was in the street passing the woman’s place, and that she caught hold of him and started scuffling with him, and before he could prevent her she had backed him in her door and had reached in his pocket and taken his money, that he did not miss it, but his clothes were torn loose, and that when he got about ten feet away he discovered his money was gone. He said he at once ran back, hit on the front door, and when the woman came he demanded his money. She called him a damned liar, and when he said he would get a policeman she said, get one, she said she would tell him he stayed with her, which was what she did. The policeman called refused to search for the money, but let the woman go back in her house.

It is suggested in the opinion of my Brother MORROW that the court should have charged the, jury to acquit if they had a reasonable doubt that the woman assaulted prosecutor. The court told the jury that before they could convict they must believe beyond ■a reasonable doubt the money was taken by means of an assault. Such complaints are not properly before this court for criticism in the absence of some exception taken to the charge.

I cannot agreé to this reversal, and respectfully record my dissent.


author: CHRISTIAN, J. MORROW, P. J.

text:
    COPE v. STATE.
    No. 14283.
    Court of Criminal Appeals of Texas
    May 20, 1931.
    Rehearing Denied June 17, 1931.
    Samuei K. Wasaff, of Midland, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the' penitentiary for one year.

Operating under a search warrant, officers wept to a filling station for the purpose of making a search for intoxicating liquor. As they entered the building, appellant came out of the door with two half-gallon fruit jars full of whisky. The officers also found a half pint of whisky in a back room of the house. Appellant offered no testimony.

The court charged the statute making possession of more than a quart of intoxicating liquor prima facie evidence of possession for the purpose of sale, and defined the term “prima facie evidence.” In his argument to the jury the district attorney referred to the fact that the statute makes the possession of more than a quart of intoxicating liquor sufficient evidence to establish a fact unless rebutted and explained. Appellant objected to the argument and the objection was overruled. It is stated in the bill of exception that the argument was injurious for the reason that it amounted to a reference to the failure on the part of appel-Iant to take the stand and testify in Ms own behalf. Unless this reason be taken as a statement of the ground of objection, there is nothing in the bill of exception to indicate that appellant objected to the argument on the ground that it constituted a reference to his failure to testify. To be sufficient a bill of exception hringing forward an objection to an argument must disclose the grounds of the objection. Texas Jurisprudence, vol. 4, page 395; Easton v. State, 107 Tex. Cr. R. 676, 298 S. W. 594; Bryant v. State, 109 Tex. Or. R. 32, 2 S.W.(2d) 846. Treating as a ground of objection the statement that the argument was injurious because amounting to a reference to appellant’s failure to testify, it is observed that there is nothing in the bill of exception supporting such ground of objection. A mere statement in a bill of exception of a ground of objection is not a certificate on the part of the trial jiidge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. If the bill should be held to be sufficient to bring forward for review the .matter complained of, the opinion is expressed that the language used by the district attorney was not a reference to appellant’s failure to testify. It was no more than a reference to the definition of the term “prima facie evidence” as embodied in the charge of the court.

The judgment is affirmed. •

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

The following is the declaration of counsel to which reference is made in the original opinion: “The Legislature of the State of Texas, in which you gentlemen have representation, so declared that is the law and has declared that more than one quart is ample evidence to prove conclusively that it was-for the purpose of sale, conclusively, unless rebutted and explained, conclusive evidence when it stands alone and unrebutted.”

The sole point made against the argument is the claim that it is an indirect reference to the failure of the appellant to testify in his own behalf, therefore violative of article 710, C. C. P. Prom the bill, it appears that at the time of his arrest there were no. persons1 present save the officers who testified in behalf of the state, the appellant (A. L. Cope) and his brother (M. K. Cope). M. K. Cope was under indictment for the same offense. I-Iis testimony was not available to the accused. The action of the court in failing to disniiss the indictment against M. K. Cope is not before the court for review; nor does it appear that M. K. Cope was tendered by the appellant as a witness, nor that he would have given testimony explaining the purpose for which the appellant possessed the liquor. It is not shown by averment or certificate of the trial court that there were no other means available to the accused to explain the purpose for which he possessed the liquor in question.

The applicable rule is thus.stated: ’ “The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one; that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence, to which remarks may reasonably have been applied by the jury, the statute is not transgressed.” Boone v. State, 90 Tex. Cr. R. 377, 235 S. W. 580, 582.

In making the remarks, counsel did not offend against the statute. However, we are not to be understood as approving the language used in the argument.

“Conclusive” has been judicially interpreted as “decisive; irrefutable; uncontro-vertible.” State v. Brandenberger, 151 Iowa, 197, 130 N. W. 1065; State v. Kauffman, 20 S. D. 620; 108 N. W. 246; Woodruff v. Chapin, 83 Conn. 330, 76 A. 294; Covington. County v. Fite, 120 Miss. 421, 82 So. 308. There is a fundamental difference between “conclusive evidence” and “prima facie evidence.” The Legislature has not undertaken, in article' 671, P. C., to declare that proof that one possesses more than a quart of intoxicating liquor is conclusive evidence that the liquor is possessed for the purpose of sale. It is made prima facie evidence, that is, evidence which, if believed by the jury, will warrant them in concluding that the liquor is possessed for sale. The decision of the effect of the testimony is for the jury to make, guided by the charge of the court, and keeping in mind their power of passing on the credibility 'of the witnesses, the weight of the testimony, and the presumption of innocence. Wigmore on. Evidence (2d Ed.) vol. 2, page 1057.

In the present case, the evidence of the possession of more than a quart of intoxicating liquor is definite and undisputed, and the instructions given the .jury by the court are not subject to exception, but are in accord with the interpretation of article 671, P. C., relating to “prima facie evidence,” as shown in many of the decisions of this court. Among them are Newton v. State, 98 Tex. Cr. R. 582, 267 S. W. 272; Stoneham v. State, 99 Tex. Cr. R. 54, 268 S. W. 156; Reynosa v. State, 100 Tex. Cr. R. 218, 272 S. W. 452; and other cases collated in Vernon’s Ann. Tex. P. C. 1925, under article 671, pp. 471, 472, and the 1930. Supplement thereto, page 46. See, also, Louis v. State, 102 Tex. Cr. R. 440, 278 S. W. 205; Jackson v. State, 103 Tex. Cr. R. 258, 280 S. W. 836; Johnson v. State, 112 Tex. Cr. R. 528, 17 S.W.(2d) 1074; Ratliff v. State (Tex. Cr. App.) 25 S.W.(2d) 343.

The motion for rehearing is overruled.


author: LATTIMORE, J.

text:
    GOODMAN v. STATE.
    No. 14259.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    Wright Stubbs, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft; punishment, two years in the penitentiary.

Appellant complains of the fact that the court, in charging upon the burden of proof in regard to a suspended sentence, told the jury that the burden was upon appellant to show by a preponderance of the testimony that he was entitled to such suspended sentence. If the charge of the court as prepared prior to the time of the taking of appellant’s exception contained any such statement, it was eliminated. The charge as it appears in the record contains no reference to the preponderance of proof. The charge as it appears in the record is a, correct statement of the law.

Appellant pleaded guilty to the theft in question. He complains by two bills of exception of the admission of testimony regarding the finding of different number plates in the alleged stolen car when it was recovered from his possession; also of the fact that he was seen to drive in the alleged stolen ear to another car which was parked in front of the residence of the witness, and from said parked car appellant was seen to take his coat and hat and transfer them to the alleged stolen ear. These matters seem proper in the development of the transaction. The car which was parked in front of the residence of Mr. Todd, the witness referred to, show evidence of having been in a wreck. This car was later carried by the officers to the city hall, where it was put in the automobile pound, and was later claimed by a representative of an automobile insurance company who testified that the car bore a Houston number. The state undertook to show whose car this was, and, upon objection of appellant, was. not permitted to so show.

Appellant complains of the argument of the district attorney wherein he asked the jury why they should give this boy a 'suspended sentence when in other cases men had been given long penitentiary sentences for theft of articles not valued as much as this car: The bill of exception presenting this complaint sets out that a number of the jurors who sat upon the trial of this case had also sat during the same week upon the case of another man who had been given four years in the penitentiary upon a plea of guilty to burglary and theft. It would appear very questionable indeed whether the state’s attorney had the right to make an argument based upon facts transpiring relative to other cases which had been tried during the week by the same jurors and to use these happenings as the basis for an appeal to said jury to refuse appellant the benefit of a suspended sentence.'

Another bill of exception complains of the argument of the state’s attorney in saying to the jury: “It looked funny that the defendant’s attorney would not allow me to show who actually owned the car.” This bill sets out that the state’s attorney had attempted to show that defendant had stolen another car beside the one involved in the case upon trial, and that, as a part of its effort to show that appellant had come to a point near the home of witness Todd in another car which he had stolen, the state’s attorney had attempted to prove who was the owner of said car parked near the residence of Mr. Todd, and, upon objection, the testimony had been excluded. We are of opinion that appellant’s right to a suspended sentence cannot be defeated by proof of his connection with other and independent thefts from the one involved in the ease on trial. It appears probable that the jury declined to give to this young man the benefit of the suspended sentence because of such proof.

Another bill complains of the refusal of a special charge in which appellant sought to have the jury told that they should disregard the testimony tending to show that appellant was in possession of another and different car, supposed to have been stolen or had been in possession of another and different car from the one alleged to have been stolen in this ease. In view of the fact that appellant had pleaded guilty to this theft, and that there could be no purpose apparently in showing him connected with another stolen car other than an effort to defeat his application for a suspended sentence, we are of opinion that the substance of this charge should have been given to the jury.

For the errors mentioned, the judgment will be reversed and the cause remanded.


text:
    GARCIA v. STATE.
    No. 14275.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    M. J. Raymond, A. A. Alvarado, and F. B. Guerra, Jr., all of Laredo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Appellant, after conviction for deserting his destitute wife and child, appealed from an order of the district court of the forty-ninth judicial district requiring him to pay to his wife and child the sum of $10 per week, beginning November 3, 1930.

It is insisted by the state’s attorney with this court that this is not a criminal matter, nor one of which this court has any jurisdiction.

Section 5, art. 5, of the Constitution of this state, fixes the jurisdiction of the Court of Criminal Appeals, and restricts such jurisdiction to consideration only of criminal cases upon appeal and matters affecting the jurisdiction of this court and the granting of certain writs. We nowhere find any statute or constitutional direction authorizing this court to consider or determine the legality of orders such as form the basis for the appeal now pending herein.

Believing this court without jurisdiction, the appeal is dismissed.


text:
    ARMITAGE v. STATE.
    No. 14274.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    W. C. Witcher, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, one year in the penitentiary.

We regret that the statement of facts in this case was filed too late to be considered. Appellant’s notice of appeal is dated November 17, 1930, and the statement of facts was filed February 16, 1931. This was too late.

We find in the record what purports to be a bill of exception complaining of the refusal of a continuance. We are sorry we cannot consider said purported bill because it does not bear the approval of the trial court. The only other hill of exception is a copy of the motion of appellant for a new trial and presents nothing for review. ■

Finding no error in the record, the judgment will be affirmed.


author: MORROW, P. J.

text:
    GARNER v. STATE.
    No. 14225.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    W. D. Colvin, of Ennis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

On the 20th of May, 1931, a judgment of af-firmance was entered. Attention has since been drawn to the fact that the record reveals no sentence. In the absence of a sentence, this court is without jurisdiction of the appeal.

The judgment affirming the case is set aside, and the appeal is dismissed.


text:
    ARNOLD v. STATE.
    No. 14365.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    T. T. Thompson, of Clarksville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, two years in the penitentiary.

The record is here without statement of facts or bills of exception. The indictment, the charge of the court, the judgment and sentence appear in regular form. No error appearing, the judgment will be affirmed.


author: LATTIMORE, J. . HAWKINS, J.

text:
    FREEMAN v. STATE.
    No. 14201.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    Rehearing Denied June 24, 1931.

      Robertson & Eriberg, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J. .

Conviction for burglary; punishment, twelve years in the penitentiary.

This case was here on appeal at a former time; the opinion being reported in Freeman v. State, 30 S.W.(2d) 330. The facts in this record appear to be substantially the sáme as on the former appeal, at which time the opinion was expressed that the evidence was sufficient to justify the verdict. The circumstances so closely connected appellant with ■the burglaix and so strongly supported the theory that ho was a principal therein, as to seem to leave very little room for doubt of his guilt.

We think the motion to quash the indictment was correctly overruled. We know of no authority in this state requiring that an indictment charging in terms that the offense was the second offense committed by the accused should allege that he had not been pardoned. In our opinion the burden'of showing that he had been pardoned in such manner as that the former offense could not be plead or used in order to bring about a heavier penalty would be one which should be pleaded and proven by the defense.

Appellant contended that he was., entitled to have a charge on alibi, and excepted to the court’s charge for its failure to so state, and he also presented a special charge, the refusal of which is complained of. In our judgment the trial court did not err in failing or refusing to submit the defense of alibi. Appellant did not take the stand and testify. As supporting any theory of alibi, his only defensive testimony was that of a friend who testified that he saw appellant in Fort Worth some time during the morning after the burglary at Electra on the night preceding. There is nothing in the record to show that Electra is at such distance from Fort Worth as to indicate or lead to any inference that the presence of appellant in the latter city on the morning of the 2Gth would not be an easy matter, even if he had been implicated in the burglary at Electra the night before.

As we understand this record, the testimony of Mr. Williams was reproduced before the jury by Mr. Anderson from .notes made by Mr. Anderson during the examining trial of appellant, at which time, in the presence of appellant and his counsel, said witness Williams, since deceased, gave testimony in behalf of the state. The testimony of Mr. Williams, while reduced to a written form from notes made by witness Anderson, was not introduced in written form before the jury. The testimony written out from the notes was used by Mr. Anderson to aid him and refresh his recollection as he gave oral testimony. We do not think the bill complaining of the testimony of Mr. Kuntz that ’ the written instrument handed him was a correct statement of the testimony of deceased witness Williams as given at the preliminary hearing—that is, that it contained the substance of his testimony as it was reproduced •Upon a former trial—-is objectionable. Evidently the state was using Mr. Kuntz to support Mr. Anderson in reference to the correctness of the written statement used by Mr. Anderson to refresh his recollection as he gave oral testimony on this trial, reprodue- • ing the former testimony of Mr. Williams at the examining trial.

There are a number of bills of exception complaining of arguments; lengthy excerpts from the arguments by the state both in opening and closing being set -up in numerous bills of exception. The matters complained of would be of no general interest and shed no light upon any question pertaining generally to the practice, and to discuss them would unnecessarily lengthen this opinion. Each of the bills of exception thus complaining has been examined, and none of them are believed by us to present any error.

Believing the record to manifest that appellant has had a fair trial and that no error appears, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention to his complaint that the jury discussed his failure to testify. The evidence developed on the hearing of the motion for new trial was brought forward by statement of facts and not by bill of exception, and in some way the point was overlooked.

. A¥e have examined the evidence taken from the jurors regarding the matter and think the trial judge properly ruled against appellant on the point. It seems that one of the juror's said h^ wondered why appellánt did not testify, and the foreman of the jury remarked that this was a matter they could not consider. The trial court was justified in concluding that it was not considered or discussed, but was barely an illusion to the failure of appellant to testify. See cases collated in note 40, under article 710, A'ernon’s Tex. O. O. P. vol* 2, among them being Bogan v. State, 78 Tex. Cr. R. 86, 180 S. W. 247; Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902.

We deem it unnecessary to again discuss, the matters which were disposed of in the original opinion.

The motion for rehearing is overruled.


author: HAWKINS, J.

text:
    TYLER v. STATE.
    No. 13807.
    Court of Criminal Appeals of Texas.
    June 3, 1931.
    W. A. McIntosh, of Gilmer, and J. M. Elliott, of Memphis, for appellant.
    Hamilton, Fitzgerald & Grundy, of Memphis, James C. Mahan, Dist. Atty., of Wellington, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder; punishment being assessed at death.

The prosecution grew out of the killing •of a young man by the name of Bryan Nall who resisted an attempted robbery. Because of the necessary disposition of the appeai, a detailed statement of the facts is not called for.

Issue was joined upon a motion by appellant for change of venue and evidence heard thereon. It does not appear therefrom that the court abused his discretion in denying the motion.

. Many other questions are presented which will not occur on another trial, and a discussion of them is pretermitted.

It is made to appear by bills of exception 5 and 7 that, after the special venire had been exhausted, the trial court directed the clerk to draw from the box containing the list of remaining jurors fifteen additional names, and place them on the venire list. He then directed the sheriff to summon these men from whom the jury was completed. Appellant objected to this procedure on the ground, among others, that the talesmen were not selected in accordance with the law. Article 596, C. C. P. (1925), reads as follows: “On failure from any cause to select a jury from those summoned upon the special veni-re, the court shall order the sheriff to summon any number of men that it may deem advisable, for the formation of the jury.”

It is appellant’s position that the discretion is vested in the sheriff^ as to- the selection of talesmen, and that the court was acting without authority to proceed in the manner shown in securing additional prospective jurors. For a time after the Legislature provided for drawing additional special venire lists (see article 593, C. C. P.), our court was in some confusion in regard to the proper manner of selecting talesmen after the venire panel had been exhausted. This is evidenced by the opinion in Keith v. State, 59 Tex. Cr. R. 63, 94 S. W. 1044, which was followed in the original opinion in Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329. Upon rehearing the original opinion in Mays’ Case; supra, was changed. See Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329. The Keith Case was in effect overruled. The final holding was that the provision now found in article 593, C. C. P., regarding additional special venire lists, did not affect the manner of selecting talesmen when the venire drawn in the case had been exhausted, but that article 596, C. C. P., directed the manner of selecting talesmen, which is by the sheriff. Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345. Since that time it has been held that it was not error for the court to refuse defendant’s request to have the talesmen selected other than by the sheriff. Bennett v. State, 95 Tex. Cr. R. 70, 252 S. W. 790, Russell v. State, 84 Tex. Cr. R. 245, 209 S. W. 671. See, also, Riley v. State (Tex. Cr. App.) 81 S. W. 711. If it is not error to refuse accused’s request to ignore article 596, C. O. P., in selecting talesmen, it is hard to combat appellant’s position that it is error to ignore said article over appellant’s protest. We do not discuss the matter further, as the suggestions already made will prevent a recurrence of the matter upon which the complaint is predicated.

One ground of the motion for new trial was based on an averment that the jury discussed the failure of appellant to testify and considered that fact against him. Upon a hearing of the motion, six jurors testified. It developed that, soon after the jury retired, they agreed upon the question of guilt, but it was some eighteen or twenty hours later before the death penalty was agreed on. The reference to appellant’s failure to testify was after the agreement as to his guilt had been determined.

Mr. Stout, one of the jurors, testified that some one referred to appellant’s failure to testify. He said: “I. think it was a kind of general discussion. * * * I made the remark that it was not permissible to discuss that, and Mr. Wolfe who was foreman of the jury said the judge had not instructed them not to discuss it. ⅜- ⅜ * This matter was in open discussion- there. Somebody mentioned it and I said, ‘I don’t think we ought to discuss it,’ and then Mr. Wolfe' said the court had not charged on it and he thought maybe we could discuss it. As -far -as I know it wasn’t mentioned after that. * * * I don’t believe the expression was nsed ‘If the defendant wasn’t guilty why didn’t he go on the stand and say so,’ the burden was put on the attorneys as to why they didn’t put him on the stand, and someone said, ‘If he wasn’t guilty why didn’t they put him on the stand and let him testify.’ We were' all around the table discussing the merits and demerits of the ‘case when this discussion came up, and someone said, T don’t know why they didn’t, put the defendant on the stand and let him testify himself.’ ”

Mr. Stringer, another juror, testified: “The matter was brought up two or three times in regard to the defendant not going on the stand as a witness. I think it was' remarked about pretty generally. * * * Erom the discussion I rather think some of them considered that perhaps he was afraid to take the stand, and I made the remark that I would have been glad if he had gone on the stand so I could have studied the slant of his mind. This matter was brought up two or three times, all different ones. I don’t remember who they were.”

Mr. Rothfus, another juror, testified that he was the juror who was holding out on the question of the penalty, and that he heard a discussion among some of the jurors about appellant not having taken the stand in his own behalf. This juror said he was up in the bedroom at the time, and that the discussion was among the jurors who were down stairs; that he heard it mentioned a time or two. Mr. Slover, another juror, said he heard some one say something about the defendant not having testified in his own behalf; he said he did not recollect distinctly that this was referred to but one time. “The words that I remember hearing and the only one that I can swear to was ‘If he wasn’t guilty, why didn’t he go on the stand and say so.’”

The four jurors mentioned were used by appellant upon the hearing of the motion; the state used two jurors, Messrs. Russell and Lamb. The extent of their testimony was that during the deliberations of the jurors they did not hear any discussion of defendant’s failure to testify. Mr. Lamb would not say there was no such discussion, but said he did not hear any, and, if any occurred, he did not remember it.

Article 710, C. C. P. (1925), provides: “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken, as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause. * * *»

The great number of reversals because of • a violation of this statute illustrates very clearly the futile efforts of legislation to control the workings of the human mind. In the present instance, there” may have been no “general discussion” among the jurors of the fact that appellant did not testify in the sense that all the jurors were engaged in the discussion, but it is perfectly apparent from the evidence heard that some of the jurors were discussing as a circumstance against appellant the fact that he had not taken the witness stand, the very thing the statute forbids. They seem not only to have discussed it, but also considered the question as to whether it was not proper for them to do so under the circumstances. It may be regretted that reversals are frequently called for under the terms of the statute, but, as long as it remains the law, this court may not ignore it, but is under the solemn duty to enforce it. The violation of the statute by the jury seems to be a matter the trial courts have little control over, as it is a natural and unconscious rebellion of the juror’s mind against the terms imposed by the statute. It is unnecessary to cite many authorities ; they will be found collated in note 40 under article 710, Vernon’s Tex. C. C. P., vol. 2, among them being Thorpe v. State, 40 Tex. Cr. R. 346, 50 S. W. 383; and Haynes v. State, 84 Tex. Cr. R. 6, 204 S. W. 430.

The judgment must be reversed and the cause remanded.


author: HAWKINS, J. MORROW, P. J.

text:
    BROOKS v. STATE.
    No. 14119.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Rehearing Denied June 17, 1931.

      Donald & Donald, of Bowie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for aggravated assault; punishment being assessed at a fine of $100.

The record is here without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The contention is made that the conviction for an aggravated assault cannot be had under an indictment for an assault with intent to murder. Such an indictment includes aggravated assault and simple assault. See Bittick v. State, 40 Tex. 117; Green v. State, 8 Tex. App. 71, and many other cases collated in Branch’s Ann. Tex. P. C. § 1628.

In the present instance, the record shows that the appellant was tried under an indictment for assault with intent to murder, and the jury returned a verdict of aggravated assault, which disposes' of the higher grade of assault.

The criticisms of the charge of the court are untenable. There were no exceptions presented to the charge. The evidence before the trial court is not brought forward for review. Without the evidence, an ap-praisement of tfie charge is not possible. The idea that the charge is fundamentally bad because it authorized the consideration of the offense of aggravated assault under the indictment, as stated above, is not regarded as sound.

In the judgment it is declared that the state of Texas “do have and recover of the defendant, the said fine of $100.00 and all costs of this prosecution, that he be committed to jail until such fine and costs are paid, and that execution issue against his property in the amount of such fine and costs.” It is the appellant’s contention that, since the prosecution was established upon an indictment charging a felony, and by the verdict of the jury he was found guilty merely of a misdemeanor, he cannot be imprisoned for the costs of the felony prosecution. The exact point was decided against the appellant’s contention in Overstreet v. State, 12 Tex. Cr. R 182, 15 S.W.(2d) 1039.

The motion for rehearing is overruled.


author: HAWKINS, J. LATTIMORE, J.

text:
    COLLINS v. STATE.
    No. 14257.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Rehearing Denied June 24, 1931.
    Mike Reinhardt, of Royse City, for appellant.
    Lloyd W. Davidson, State’s .Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for rape; punishment being seventeen years in the penitentiary.

The offense is alleged to have been committed on an eleven year old girl, the daughter of a woman with whom appellant appears to have been living, though not married to her.

No good can result from setting out the evidence in .detail. It is sufficient to support the verdict.

In the motion for new trial appellant averred that the verdict was arrived at by the jury adding together the years each thought proper punishment and dividing the result by twelve. Attached to the motion was the affidavit of four of the jurors,- which affidavits were introduced in evidence upon the hearing of the motion. The affidavits are identical. They go no further than to state “that in arriving at the punishment to be assessed the jury averaged the several assessments of the individual jurors and divided the aggregate by the number of the jurors, and that the result of the calculation was seventeen, and that the said seventeen years was adopted by the jury as the punishment to be assessed.” L. E. Pierce, one of the jurors who made the affidavit, was used as a witness by the state on the hearing. He was foreman of the jury. He testified that the jurors were consideralbly divided on the penalty, and that he suggested that each juror should put down on paper the number of years the respective jurors thought appellant should be given and hand them to him, and that he would add them together and divide the result by twelve; that there was no understanding that they would abide by the result; that the result of the experiment was greater than seventeen years, and he thought too high, and that he never announced the result; that later in trying to arrive at a penalty some one suggested fifteen years, others were in favor of twenty, some in favor of five, that his individual opinion was that ten years was enough, and that they finally agreed on seventeen years. Another juror testified for the state that he did not know what the result of the addition and division was, but that the foreman said it was much higher than the seventeen years agreed on. •

We find no error in the court’s action in overruling the motion for new trial. The evidence produced upon the hearing justified the trial court in finding that the conduct of the jury amounted to no more than an experiment, with no agreement to be bound by the result. Many authorities are collated in section 656, Branch’s Ann. P. C. of Texas, among them are Leverett v. State, 3 Tex. App. 213; Cravens v. State, 55 Tex. Cr. R. 519, 117 S. W. 156, 157, 16 Ann. Cas. 907. Perhaps the latest case on the subject is Harris v. State (Tex. Cr. App.) 26 S.W.(2d) 225.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In'his motion for rehearing, appellant raises only the question of the sufficiency of the testimony, and calls attention to a number of minor contradictions therein. The parties to the transaction are negroes, and the prosecutrix was a negro girl eleven years of ■age. She asserted positively that appellant had intercourse with her about the time mentioned.. She is corroborated by the testimony of a physician who examined her.

Discrepancies in dates and days and other matters but raise fact issues, the settlement of which are for the jury, and this court will rarely disturb their conclusion. In fact we never do so when the only contention relates to such minor matters. We believe the record to contain testimony sufficient to justify the jury in arriving at a verdict of guilty.

The motion for rehearing will be overruled.