author: CRITZ, J.

text:
    THOMPSON et al. v. NORTH TEXAS NAT. BANK.
    No. 1438—5653.
    Commission of Appeals of Texas, Section A.
    April 15, 1931.

      Worsham, Rollins, Burford, Ryburn & Hincks, Saner, Saner & Jack, and I. M. Williams, all of Dallas, and Tom Whipple, of Waxahachie, for plaintiffs in error.
    Thomas, Storey & Grady, of Dallas, for defendant in error.
   CRITZ, J.

This suit was begun in the district court of Dallas county by North Texas National Bank against D. G. Thompson, R. K. Erwin, I. M. Williams, Mrs. Ella K. Gibson, and W. J. Rutledge, trustee in bankruptcy of Texas Mortgage Company, a corporation. Later Rutledge, trustee, was dismissed. The ease was tried with a jury, but at the conclusion of the evidence the court peremptorily instructed a verdict in favor of D. G. Thompson, Mrs. Ella K. Gibson, and I. M. Williams. The court also peremptorily instructed a verdict in favor of the bank against R. K. Erwin. The jury returned a verdict as instructed, and judgment was entered accordingly. The reason for the instructed verdict against Erwin does not concern us, as he did not appeal therefrom. The North Texas National Bank appealed to the Court of Civil Appeals at Dallas, which court originally reversed the judgment of the district court in favor of Thompson, Mrs. Gibson, and Williams, and rendered judgment against them for the bank, but on rehearing this judgment was changed so as to remand the cause for a new trial. 23 S.W.(2d) 494. The case is in the Supreme Court on writ of error granted on application of Thompson, Mrs. Gibson, and Williams.

It appears from the record that on July 29, 1921, T. J. Cole, I. M. Williams, D. G. Thompson, R. K. Erwin, and Mrs. Ella K. Gibson, all stockholders and directors of Texas Mortgage Company, executed and delivered to the Southwest National Bank of Dallas, Tex., the following instrument of guaranty.

“Limited Guaranty

“For the sum of One Dollar ($1.00) and other valuable consideration, I, we, or either of us, jointly and severally, guarantee the payment and agree and promise to pay at Dallas, Texas, to the Southwest National Bank of Dallas, its successor, successors or assign, at maturity or at any time thereafter as demanded by it, all notes, discounts, overdrafts and any and all indebtedness or obligation. whether joint or several, or both, or primary or secondary, contract of tort, for which The Texas Mortgage Company of Texas, Dallas, Texas, is, or are, now, or hereafter may become, liable or indebted to the Southwest National Bank of Dallas, its successor, successors or assign, provided, however, that my or our liability hereunder shall not exceed the sum of Twenty Thousand Dollars ($20,000.00), and the payment of said sum of Twenty 'Thousand Dollars ($20,000.00) under this contract to said Southwest National Bank of Dallas, its successor, successors or assign, by. the subscriber or subscribers hereto, such payment to be applied to the indebtedness of the principal debtor as may be determined by the Southwest National Bank of Dallas, its successor, successors or assign, shall satisfy and discharge the obligation of this instrument.

“I, we, and each of us hereby waive notice of acceptance of this guaranty and all. other notices in connection herewith, or the indebtedness or obligation guaranteed thereby and waive diligence, presentment, notice, protest and suit on the part of the bank, its successor, successors or assign, in the collection of any indebtedness or obligation hereby guaranteed. This guaranty is a continuing one and shall continue to apply without regard to the form or amount of the indebtedness or obligation guaranteed, which the bank, its sue-cessor, successors or assign, may create, renew, extend or alter, in whole or in part, without notice to the undersigned from time to time as it may elect without affecting the obligation of this guaranty, and it is hereby expressly agreed that the bank, its successor, successors or assign, may surrender, release, exchange or alter any collateral or other security held by it for the claims hereby guaranteed, either in whole or in part, without affecting the obligation or liability of the undersigned on this guaranty, and this guaranty shall be and continue effective notwithstanding any legal disability of the principal debtor to incur the indebtedness or obligation, in whole or in part.

“This instrument shall bind me, us, and each of us, severally and jointly, until the Southwest National Bank of Dallas, its successor, successors or assign, shall have received notice in writing, that the subscriber hereto giving such notice elects to be no longer bound by this guaranty, after which time this instrument shall bind the subscriber hereto giving such written notice <mly as to the indebtedness or obligation then existing and renewals or extensions in whole or in part of the then existing indebtedness or obligation, but shall continue in full force and effect at the option of the bank, its successor, successors and assign, as to all other subscribers hereto not giving such written notice.”

After the execution and delivery of the above instrument of guaranty, the mortgage company became indebted to the Southwest National Bank in the sum of $4,000, evidenced by á negotiable promissory'note. This'note was an asset of such bank and unpaid on May 13, 1925. On or about this last-named date the Southwest National Bank and North Texas National Bank entered into the following written contract:

“This agreement, this day made and entered into by and between the Southwest National Bank of Dallas, Texas, hereinafter styled party of the first part, and North Texas National Bank of Dallas, Texas, hereinafter styled party of the second part, wit-nesseth;
“That the party of the first part does hereby sell, assign and agree to deliver any and all of the assets of any kind, character and description except its corporate name and charter, unto the party of the second part, hereby authorizing, empowering and directing -the President, either of the Vice-Presidents, 'or the Cashier of the party of the first part .to transfer by endorsement, all notes, bills of j exchange or other evidence of debt owned Jby the party of the first part, unto the party of the second part; to execute and deliver all and any deeds or other instruments necessary to convey title to any real estate owned by party of the first part unto party of the second part, and to transfer and deliver all bank balances due from other banks by means of drafts and all means, and to deliver all cash, checks, or equivalent of money owned by parity of the first part unto party of the second ¡part, it being the intention of this agreement ¡to sell, transfer and deliver -by any and all ¡means all of the assets of the party of the 'first part, except its corporate name and charter, unto the party of the second part.
“2. That in consideration that the party of ,the first part shall and does sell, assign and deliver all of the assets of every kind, description and character, its corporate name and charter alone excepted, unto the party of the second part as hereinafter set out.
“Now, therefore, party of the second, part does hereby assume all of .the liabilities of the party of the first part, except its liability to its shareholders; and party of the second part hereby further agrees to select from the assets of the party of the first part a sufficient amount of assets to equal in value the liabilities assumed by party of the second part.
“The party of the second part shall hold all assets taken over under this transfer from the party of the first part over and above the total selected as hereinbefore, provided and set up on its books to offset all liabilities of record except to shareholders of the party of the first part; that said assets shall be so held for a period of one year from the date of transfer to indemnify it in assets set up on its books and to guarantee it against loss thereon for said period of one year; that party of the second part shall have the power of substitution and the privilege of exchange between the assets sot up on its books and the residue of assets taken over from party of the first part; that after the expiration of one year from the date of this transfer, the party of the second part agrees to deliver to such duly appointed liquidating agent as may be selected by party of the first part, all' remaining assets taken over from the party of the first part and above what shall have been at that time permanently accepted by party of the second part equal in value to the amount of liabilities of record assumed by party of the second part, said remaining assets to become the property of the sharé: holders of the party of the first part, to be further administered and distributed by the duly appointed liquidating agent of party of the first part for the use and benefit of its shareholders.”

After the execution of the above contract, and by virtue thereof, the North Texas National Bank became the owner of the above $4,000 note. This note was delivered to the North Texas National Bank, together with the contract of guaranty. Later the Texas Mortgage Company paid the $4,000 note to the North Texas National Bank.

On February 1, 1926, after the above $4,-000 note had been discharged, the North Texas National Bank loaned Texas Mortgage Company $20,000, evidenced by the note here sued on. The North Texas National Bank relies on the contract of guaranty above set out as the basis of its suit against the signers of such guaranty contract.

It appears from the undisputed record that the Southwest National Bank was a banking corporation doing business at Dallas, Tex., prior and up to about' the time the contract between it and the North Texas National Bank was entered into. On Saturday night after the contract between the two banks was signed the Southwest National Bank ceased active business as a bank, and on the following Monday morning the North Texas National Bank opened its doors for business in the house formerly occupied by the Southwest National Bank. The business went forward without any intermission. The North Texas National Bank paid the obligations of the Southwest National Bank, including the checks drawn on the Southwest National Bank, and honored all deposit slips and passbooks of the Southwest National Bank. In-fact the new bank took up where the old bank had left off, and fulfilled the obligations of the old bank as to depositors and all other matters. The Southwest National Bank ceased to do a banking business and went into liquidation. The South west National Bank, however, retained its corporate charter and name. Furthermore, at the expiration of the year provided in the contract the North Texas National Bank selected the assets of the Southwest National Bank it chose to keep under the provisions of the above contract and delivered back to the Southwest National Bank the remaining assets amounting to about $2,000,000 in face value, but only about $200,000 in actual value.

For convenience we shall hereafter refer to the Southwest National Bank as the first bank and the North Texas National Bank as the second bank.

From the statement we have made it is evident that the second bank asserts its right of recovery in this case on the ground that it, under the facts and circumstances of this case, is a successor and assign of the first bank within the meaning of the contract of guaranty. The Court of Civil Appeals upholds this contention, and in doing so also holds that the rule of strict construction does not apply to a compensated surety.

Thompson et al. contend that the guaranty contract is not assignable except in so far as it may secure an existing indebtedness in the hands of the first bank. In this connection it contends that the contract under the facts and circumstances of this case only secured the existing indebtedness owed to the first bank at the time the assets of the first bank were assigned to and taken over by the second bank.

The guaranty contract by its very plain and express terms is to the first bank, its successors and assign. It expressly states that it is a continuing contract and applies without regard to form, amount, etc., to any indebtedness which the bank, its successor, successors, or assign may create, renew, extend, or alter, in whole or in part.

The contract expressly states that it is for the benefit of the first bank, and its successors and assign. It then by its very plain terms gives the successor and assign exactly the same rights that are given to the first bank. In this connection it expressly gives the successor and assign the right to create a new debt. If it only applied to the first bank and its successors and assign to the extent of a debt created in favor of the first bank, the provision that it applies to the first bank, its successor and assign, as to' debts to be created, would be rendered meaningless. In other words, the instrument by its very terms provides that it can be taken by a successor or assign of the first bank, and the successor or assign is given exactly the same rights that the first bank is given, not only as to extensions, renewals, and alterations, but as to the right to create an obligation.

When we come to consider the last clause of the instrument, the above construction is doubly fortified and rendered absolutely free from doubt. This clause expressly provides that it binds the signers jointly and severally until the first bank, its successor or assign, shall receive notice in writing that the signer giving the notice elects to he no longer bound. It is then provided that, after the giving of such notice, the signer giving the notice shall only be bound for existing obligations, and renewals and extensions thereof, but that the obligation shall continue in full force, at the option of the bank, its successor, successors, and assign, as to all subscribers not giving the notice. Here the contract by its express terms gives the first bank, and also its successors and assigns, the right to continue to make loans on the guaranty contract and bind the signers jointly and severally until they give the notice therein provided. The contract by its express. terms provides for this notice to be given to the successors or assign as well as to the first bank. If the successor or assign has no right to make a loan or create a debt secured by the contract, then the requirement that the successor or assign be given the notice is an idle and vain provision, and the stipulation that the contract shall continue to bind those not giving the notice to the first bank, its successors or assigns, would mean nothing.

From what we have said it is evident that the contract of guaranty is not so worded that it is personal alone to the first bank as to the right to create a debt, but by its very plain language it gives the first bank the power to transmit to a successor or assign the right to act under such contract, the same as the first bank, and thus give a successor or assign an equal right to create a debt which the first bank had. This is the only construction this contract can be given, whether it be strictly or liberally construed with reference to the rights of the signers. In other words, the contract in plain and unambiguous language gives the first bank the right to transmit to a successor or assign all rights possessed by the first bank.

If the second bank came into possession of the guaranty contract as a successor or assign of the first bank, and made the loan to the Texas Mortgage Company relying on the guaranty contract, and in pursuance thereof, then the guarantors are liable and bound to the se'cond bank the same as if the loan had been made by the first bank. The record is conclusive that the second bank made the loan in pursuance of and relying on the guaranty contract. We shall therefore proceed to determine whether the second bank is a successor or assign of the first bank.

The word “successor” is defined by Webster’s New International Dictionary to mean “one that succeeds or follows; one who takes the place which another has left, and sustains the like part or character; one who takes the place of another by succession,” etc.

In International & G. N. Co. v. Smith County, 65 Tex. 21, cited by the Court of Civil Appeals in the instant .case, it is shown that the state, by legislative act, granted a railway company exemption from taxation for a certain number of years. The exemption was in favor of the railroad company named, its successors and assigns. The properties involved which belonged to the railroad particularly named in the act were subsequently sold to another company. Smith county and its officers attempted to collect the taxes on such properties in the hands of the purchasing company, contending among other things, that the sale worked a relief of the exemption, because the same was a personal privilege to the original company and not its assign. Oür Supreme Court speaking through Judge Stayton rejected this contention and held that the words “successors and assigns,” as used in the statute meant whomsoever should succeed to the property and corporate rights of the company, to whom the exemption was given.

The word “successor,” as used in an ordinary deed to a corporation, of course, has a definite meaning by force of the very character of the instrument.

From the discussion it is evident that the general meaning of the word “successor” is defined by Webster, supra. However, the exact meaning as applied to a contract wherein the word is used must depend largely on •the kind and character of the contract, its purposes and circumstances, and the context.

When we come to consider the guaranty contract in the light of its attendant circumstances, and its own tenor and wording, we find that all of the signers were stockholders and directors in a corporation which desired to establish a line of credit for the corporation. They all executed a contract which by its very terms inured to the benefit of the successor of the bank to which it was delivered, and by its very terms was assignable. ‘It is shown that the first bank to which it was given decided to cease business, and to liquidate its assets. To consummate this purpose the first bank entered into a contract with the second bank by the terms of which the first bank conveyed to the second bank all of its assets, “of every kind, character and description,” except its name and charter. The second bank assumed all of the liabilities of the first bank of every kind and description, except to its stockholders. In consummating the contract between the two banks, an actual physical delivery of all of its properties, papers, books, and records, and all other property of every character and description took place. The second bank took over all of the deposit accounts of the first bank, and continued the business at the same place just as though there had been no change in ownership. The checks drawn on the first bank were honored by the second bank, and in fact as far as the transaction of the business was concerned the change in ownership had no effect on the customers of the .bank. The $4,000 note of the mortgage company guaranteed by the contract here sued on was actually delivered to the second bank. Also the contract of guaranty was actually delivered to the second bank. The fact that the second bank had taken over the first bank was open and notorious, as also was the fact that the first bank had ceased business.

We think under the above facts and circumstances the second bank was the successor of the first bank within the meaning and contemplation of the contract of guaranty.

We are further of the opinion that the contract between the two banks, together with the attendant circumstances, demonstrate conclusively and as a matter of law an assignment of the contract of guaranty. The contract between .the two banks expressly provides that the 'first bank sells and delivers to the second bánk all of its assets of every kind and character, etc. If the guaranty contract was an asset in the hands of the first bank within the meaning of the contract.between the two banks, it wag certainly assigned by the second bank. It is certain that the bank so understood the contract, for they made an actual physical delivery to the second bank of this contract, together with absolutely everything the first bank owned. In other words, the two banks themselves demonstrated that they intended the contract to operate as a transfer of all rights owned or held by the first bank except its name and charter. Finally, were a controversy to arise between the banks as to who was the holder of this contract under the facts of this record, no court would hold that the first bank still held or owned the same.

Thompson et al. also contend that, even if it be conceded that the second bank is a successor or assign of the first bank, still they are not bound in the instant suit because the second bank never notified them of its acceptance of the guaranty contract. If it be conceded that a guaranty of this nature ordinarily requires acceptance, still the instant contract expressly waives notice of acceptance in the following language: “I, we, and each of us hereby waive notice of acceptance of this guaranty, and all other notice in connection herewith,” etc.

This waiver, under the terms of the instrument cannot be construed as personal alone to the first bank.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

OURETON, C. J.

The judgment of the Court of Civil Appeals reversing and remanding the' cause is affirmed, as recommended by the Commission •of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in, its opinion.


source: Caselaw Access Project

license: Public Domain

text:
    NATKIN ENGINEERING CO. v. ÆTNA CASUALTY & SURETY CO.
    No. 14401-5657.
    Commission of Appeals of Texas, Section A.
    April 15, 1931.
    Winfrey & Lane, of Dallas, for plaintiff in error.
    Harry P. Lawther and William M. Cramer, both of Dallas, for defendant in error.
   CRITZ, J.

Plaintiff in error, Natkin Engineering Company, a partnership, sued the defendant in error, .¿Etna Casualty & Surety Company, a corporation, in the district court of Dallas county, Tex’, upon a contractor’s bond, executed by W. T. Munroe Company, as principal, and the casualty and surety company, as surety. Trial in the district court resulted in a judgment for the casualty and surety company. This judgment was affirmed by the Court of Civil Appeals. 22 S.W.(2d) 717. The case is in the Supreme Court on writ of error 'granted on application of the engineering company.

An inspection of the record and the opinion of the Court of Civil Appeals discloses that, when the case was presented to the Court of Civil Appeals, none of appellant’s assignments of error were contained in the brief. This appearing, the Court of Civil Appeals, finding no fundamental error, affirmed the judgment of the district court.

The engineering company then filed a motion to amend their brief and for rehearing. Both of these motions were overruled. The Court of Civil Appeals then proceeded to. express its views on the merits of the ease declaring the questions presented properly decided by the district court.

The assignments contained in the application for the writ of error complain of the rulings of the Court of Civil Appeals on the merits of the case, hut no complaint is made of the refusal of the Court of Civil Appeals to allow the appellant to amend its brief .by including therein its assignments of error.

In this state of the record we think that the judgment of the Court of Civil Appeals should be affirmed, regardless of the question of the correctness of their ruling on the issues here presented. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844, 846; Texas Jurisprudence, vol. 3, par. 588.

In the above case the Court of Civil Appeals for the Tenth district certified to the Supreme Court the following question: “ ‘First Question. Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, should the Court of Civil Appeals confine its consideration of the case to fundamental error apparent on the face of the record, or. should it in the exercise of its discretion, if the ends of justice require, consider the points or propositions presented in such brief as ground for reversal, notwithstanding such failure?’ ”

Section B of the Commission, in an opinion by Judge Speer which was adopted as the opinion of the Supreme Court, answered the above question as follows: “First. Where an appellant or plaintiff in error wholly fails! to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the ease to those fundamental errors apparent on the face of the record. Its authority to revise the action of the'lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power. While it is not necessary that the assignments required to be filed below should be literally copied into the brief, yet they must be at least substantially reproduced. Rule 32, Court of Civil Appeals, and rule 101a, district and county courts; Seby v. Craven Lumber Co. (Tex. Civ. App.) 259 S. W. 1093; Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1104; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; Carey v. Tex. Pac. Coal & Oil Co. (Tex. Civ. App.) 237 S. W. 309; Green v. Hall (Tex. Com. App.) 228 S. W. 183. There is a substantial difference between an assignment of error and a proposition submitted thereunder. The one complains of some action of the court, and the other merely sets forth the reasons why such action is erroneous. It takes the assignment to reach the ruling, and it is the ruling that is to be reviewed by the appellate court. Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734; McDaniel v. Turner (Tex. Civ. App.) 269 S. W. 496; International, etc., Ass’n v. Griffing (Tex. Civ. App.) 264 S. W. 263; Ford v. Flewellen (Tex. Civ. App.) 264 S. W. 602; Chenault v. Honaker (Tex. Civ. App.) 261 S. W. 825.”

It follows from the above holding that the Court of Civil Appeals was without authority to pass on anything in this case except fundamental error. No such error appears.

The case was therefore correctly affirmed.

We express no opinion as to the merits of the controversy, because the questions thus presented are not properly before us.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

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


author: HARVEY, P. J.

text:
    Ex parte BARRETT et al.
    No. 1422—5696.
    Commission of Appeals of Texas, Section A.
    April 20, 1931.
    Jessie Tate, Henry Lee Taylor, and Douglas & Black, all of San Antonio, for relators.
    Morriss & Morriss and Reed Cozart, all of San Antonio, for respondents.
   HARVEY, P. J.

This is a habeas corpus proceeding instituted in the Supreme Court by the relators, Thurman Barrett and two others, against whom the district court of Bexar county has entered a judgment imposing upon them a punishment, as for contempt of said court.' The material facts are, in effect, as follows: Harlendale is an unincorporated town in Bexar county, and contains some 3,500 inhabitants, including 1,300 qualified voters. In July, 1930, upon petition of the required number of inhabitants of the town, an election was ordered by the county judge to be held on August 9, 1930, for the purpose of determining whether or not certain territory lying in the town should be incorporated as a town. The territorial boundaries of the proposed corporation, as same are set out in the petition for the election, and in the election order, embraced but a part of the town. On August 8, 1930, W. J. Morrison, and a number of other resident property taxpaying voters of the town of Harlendale, presented to the acting’ judge of one of the district courts of Bexar county a petition seeking an injunction to restrain the officers of said election from holding said election, on the ground that the election was not authorized by the statutes, in that a large portion of the town and a large number of its inhabitants and voters were not included within the boundaries of the proposed corporation. Some of the petitioners for injunction reside and own property within the proposed boundaries. Others reside in the part of the town that lies outside of the proposed boundaries,, but own property lying inside said boundaries. The petition alleged in detail the above-stated facts as rendering the election and the proposed incorporation invalid. In substance the facts relating to the election are the same as in the case of State v. Stein (Tex. Com. App.) 26 S.W.(2d) 182. The judge issued a temporary injunction to restrain the holding of said election. The relators, being the officers to conduct said election, disobeyed the injunction and proceeded to hold the election. Afterwards they were cited for contempt because of this disobedience, and, after a hearing, the court entered a judgment imposing punishment on them. They are held in restraint under said judgment.

The holding of an election is a political function, and courts have no power to inquire into the validity of an election until it is completed. Regardless of whether the election be one which conforms to statutory requirements or not, the bare fact that the election is held would not affect private rights. Consequently the matter of stopping the progress of an election, merely for the purpose of - inquiring into its validity, lies outside of the general scope of judicial power. This constitutional principle, though sometimes overlooked, has been recognized and applied in a number of well-considered eases, and must be treated as settled. Dallas v. Street Railway Co., 105 Tex. 337, 148 S. W. 292; Winder v. King (Tex. Com. App.) 1 S.W.(2d) 587; Leslie v. Griffin (Tex. Com. App.) 25 S.W.(2d) 820; Robinson v. Wingate, 98 Tex. 267, 83 S.W. 182 (approving the opinion of the Court of Civil Appeals in 36 Tex. Civ. App. 65, 80 S. W. 1067).

The district court of Bexar county had no power to. restrain the holding of the election in question. The writ of injunction, therefore, lacked the support of judicial authority. The writ, it is to be observed, did not relate to a matter to which the jurisdiction of the court was erroneously or improvidently applied, but related to a matter of which the court could take no jurisdiction at all. The injunction was void, and the contempt proceedings based upon it is likewise void. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063; 6 R. C. L. p. 505.

We recommend that the relators be discharged.

OURETON, C. J.

The opinion of the Commission of Appeals is adopted, and relators discharged.


author: LEDDY, J.

text:
    BRITISH AMERICAN ASSUR. CO. OF TORONTO, CANADA, v. MID-CONTINENT LIFE INS. CO. et al.
    No. 1257—5644.
    Commission of Appeals of Texas, Section B.
    April 15, 1931.

      E. G. Senter, of Dallas, for plaintiff in error.
    T. M. West, of San Antonio, andJDaven-port, West & Ransome, of Brownsville, and J. Franklin Spears, of San Antonio, for defendants in error.
   LEDDY, J.

There is no controversy as to the facts in this ease, as the trial court’s findings are not' challenged by any of the parties hereto.

It is disclosed that defendant in error, A. A. Maupin, owned a five-acre tract of land near Harlingen, Tex., upon which was situated a residence. The defendant in error, Mid-Continent Life Insurance Company, held a valid and subsisting lien against said property to secure the payment of vendor’s lien notes, upon which Maupin was liable, in the principal sum of $4,500, the total amount due upon said indebtedness at the timé of the trial being $5,806.49.

The mortgagee holding this indebtedness, without the knowledge of defendant in error Maupin, procured the issuance of a fire insurance policy by plaintiff in error, British American Assurance Company, in the sum’ of $4,000, covering the building on the premises, the same being in favor of Maupin with the usual loss payable clause to the mortgagee. Defendant in error Maupin subsequently learned of the issuance of this policy, and, after receiving such knowledge, procured the issuance in his favor, without any loss payable clause to the mortgagee, a policy by the defendant in error Continental Insurance Company of New York in the sum of $4,000, covering the same property.

The residence insured by these two policies was subsequently destroyed by fire, and this suit was instituted by the Mid-Continent Life Insurance Company against the British American Assurance Company on the policy, to which was attached the loss payable clause in its favor, and it also sought to recover against the Continental Insurance Company of New York upon an assignment of the amount due under its policy by the assured Maupin.

The trial court rendered judgment in favor of the Mid-Continent Life Insurance Company against the British American Assurance Company for the full amount of its policy and in the sum of $1,500 against the Continental Insurance Company of New York under its policy for $4,000. The recoveries thus awarded amounted to $5,500, tlie agreed value of the property destroyed.

The Court of Civil Appeals, 21 S.W.(2d) 1106, reversed the judgment against the latter company, but affirmed the recovery for the full amount of the policy issued by the British American Assurance Company.

Each of the policies covering this property contained the standard concurrent insurance clause, which reads as follows: “This entire policy, unless otherwise provided by an agreement endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

•Under the settled law of this state the violation of the fdregoing stipulation against other insurance rendered each of these policies void and barred any recovery thereon by the assured. New Orleans Ins. Ass’n v. Griffin, 66 Tex. 232, 18 S. W. 505; East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Orient Ins. Co. v. Prather, 25 Tex. Civ. App. 446, 62 S. W. 89; Wilson v. Ætna Ins. Co., 12 Tex. Civ. App. 512, 33 S. W. 1085; Hartford Fire Insurance Co. v. Post, 25 Tex. Civ. App. 428, 62 S. W. 140; Providence-Washington Ins. Co. v. Levy & Rosen (Tex. Com. App.) 222 S. W. 216; Ætna Ins. Co. v. Waco Co. (Tex. Com. App.) 222 S. W. 217; Ætna Ins. Co. v. Jackson (Tex. Civ. App.) 282 S. W. 656, 657; Boatner v. Home Ins. Co. (Tex. Com. App.) 239 S. W. 928.

It is argued that the second policy taken out by the assured is valid because he was not responsible for the issuance of the first. The evidence shows the first policy was procured without his knowledge or consent by the mortgagee, who paid the premium thereon. Maupin, however, had expressly contracted to insure the property in favor of the mortgagee and agreed, if he failed to do so, the latter was authorized to obtain such insurance. He was duly notified of the issuance of the first policy, and that the premium therefor had been charged to his account. Under such circumstances the policy inured to his benefit.' In any event he became bound by its terms when he acquired knowledge of its issuance and thereafter permitted it to continue in force. Camden Fire Insurance Co. v. Sutherland (Tex. Com. App.) 284 S. W. 927, 928.

It is also claimed that, because this commission held in the above-cited case the second policy procured by the assured was valid and enforceable, such decision is •authority for a similar holding in this ease. That decision was based solely upon the proposition that the company at the time of the issuance of the second- policy was shown to have had full knowledge of the existence of the first. That such fact formed the basis of the holding plainly appears from the opinion rendered by Judge Powell. In the course of the opinion it is stated: “As we have already shown, Sutherland had insurance largely in excess of the concurrent insurance allowed by the policy in suit, and, under the provision last quoted [concurrent insurance clause], the policy in suit would be absolutely void but for the fact that the plaintiff in error [Oamden Insurance Company] had knowledge of the Lloyd’s policy in such a way as to be now estopped from setting up this provision of the contract.”

It is thus seen that the right to recover on the policy sued upon by Sutherland was due to the existence of facts sufficient to estop the insurance company from taking advantage of the clause rendering the policy void in case of additional insurance. In the case at bar no basis exists for an estoppel, as neither insurance company, prior to the destruction of the property by fire, consented to or had any knowledge whatever of the policy issued by the other.

While the policy issued by the British American Assurance Company was void as to the owner or mortgagor, such fact does not operate to prevent a recovery by the mortgagee, the Mid-Continent Life Insurance Company, as the mortgage clause expressly provides that the policy as to the mortgagee shall not be invalidated by any act or neglect of the owner or mortgagor. The-mortgagee was not shown to be in any way responsible for the issuance of the second policy, nor did it have any knowledge of the existence thereof prior to the date the property was destroyed.

Plaintiff in error, British American Assurance Company, specially pleaded that its policy contained a stipulation in the mortgage loss, payable clause, which provides: “On payment to such mortgagee of any sum for loss or damage hereunder, if this 'company shall claim as to the mortgagor or owner no liability existed, it shall to the extent of such payment, be subrogated to the mortgagee’s right of recovery and claim upon the collateral to the mortgage debt, without impairing the mortgagee’s right to sue; or it may pay the mortgage debt, and require an assignment thereof and of the mortgage.”

Plaintiff in error in this court concedes liability to the mortgagee for the face of the policy, but strenuously insists that the trial court should have given effect to the above stipulation and subrogated it to the security rights of the mortgagee to the extent that the recovery against it reduced the mortgagor’s indebtedness.

The clause relied upon is one found in all standard fire insurance policies. It is held with practical unanimity by the courts throughout the country, including our own. that where a policy contains this clause, and is void as against the assured because of his violation of some provision avoiding the same, the court should give effect to the agreement for subrogation by putting the insurance company in the place of the mortgagee to the extent the indebtedness against the owner has been reduced by payment under the policy. Alamo Fire Insurance Co. v. Davis, 25 Tex. Civ. App. 342, 60 S. W. 802; Washington Fire Ins. Co. v. Cobb (Tex. Civ. App.) 163 S. W. 608; Boatner v. Home Ins. Co. (Tex. Com. App.) 239 S. W. 928; Walker v. Queen Ins. Co., 136 S. C. 144, 134 S. E. 263, 52 A. L. R. 259 and note; Savings Bank v. Schancupp, 108 Conn. 588, 144 A. 36, 63 A. L. R. 1521 and note; Jones on Mortgages (8th Ed.) 506; Cooley’s Briefs on Ins., p. 628.

Under the terms of the policy there is recognized a marked distinction between the liability of the insurance company to the mortgagee and to the insured, its terms disclosing a clear purpose to create a liability to the mortgagee when none would exist as to the insured. In such event the parties have expressly agreed that, upon payment by the insurance company of the loss to the mortgagee, the former shall be entitled to recover through the collateral to which it may be subrogated, money which, as against the mortgagor, it should not have been compelled to pay.

There is no room for doubt as to the validity of such a stipulation for subrogation. The Supreme Court of Missouri, in Mosby v. Ætna Ins. Co., 285 Mo. 242, 225 S. W. 715, 717, in discussing the validity of such a provision, said: “Neither positive law nor considerations of public policy prevent the making or enforcement of a contract provision of this sort. We see no reason why the parties are not free to enter into such an agreement if they see fit. The authorities, in cases in which the facts are such as those in the case at bar, are quite one way.”

Some courts have gone so far as to hold, under a state of facts similar to those here involved, that an insurance company is entitled to subrogation, even though the policy contains no express provision therefor. Such rule is declared by the Supreme Court of Kansas in First National Bank of Springfield v. F. & M. Ins. Co., 104 Kan. 278, 178 P. 413. The conclusion was reached that, where the insurance company had paid the amount stipulated in a loss payable clause to the mortgagee, but had a valid defense as against the insured because of his breach of a provision of the policy, it was entitled to be subrogated to the security held by the mortgagee.

The subrogation clause was placed in the policy for the express purpose of protecting the insurance company against the assured’s violation of the provisions thereof. For the court to decline to give effect to same would nullify the provisions for forfeiture to which the assured has expressly consented and thus make another and different contract from that which the parties have made for themselves.

The payment by the insurance company to the mortgagee under the policy on the mortgagor’s indebtedness inured to the latter’s benefit to the extent his debt was thereby reduced. It, for all practical purposes, constituted a recovery by him under the policy: To deny the insurance company subrogation,- under the circumstances, would allow the assured to obtain the full benefit of a policy which because of the violation of its conditions he is not in good conscience entitled to receive. He should not be permitted to receive indirectly a benefit from the policy which the law, because of his conduct, forbids him from receiving directly.

The judgments of the trial court and the Court of Civil Appeals will be reversed, and .judgment here rendered as follows: In favor of the Mid-Continent Life Insurance Company against the British American Assurance Company of Toronto, Canada, for the sum oi $4,000, with interest thereon at the rate ot 6 per cent, per annum from October 18, 1927; that the Mid-Continent Life Insurance Company take nothing as against the Continental Insurance Company of New York, and said company recover its costs in all courts; that a lien be decreed to exist in favor of the British American Assurance'Company of Toronto, Canada, against the property belonging to A. A. Maupin, covered by the mortgage held by the Mid-Continent Life Insurance Company, to secure the payment of the sum herein awarded, against said company, and that said lien be foreclosed against A. A. Maupin, and said property ordered sold as under execution, such sale being subject to the lien held by the Mid-Continent Life Insurance Company for any indebtedness remaining under its mortgage after the application of the amount herein awarded. The costs of the trial court will be assessed against plaintiff in error, and all costs of appeal aré adjudged against the Mid-Continent Life Insurance Company.

CURETON, C. J.

Judgments of the district court'and Court of Civil Appeals reversed, and judgment rendered for plaintiff in error, as recommended by the Commission of Appeals.


author: CHRISTIAN, J.

text:
    MOORE v. STATE.
    No. 14048.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    R. T. Jones, of Henderson, and Gentry & Gray, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor ; the punishment, confinement in the penitentiary for one year.

Motion for new trial was overruled on July 21, 1930, and notice of appeal given on the same date. The statement of facts was filed in the trial court on October 24, 1930, which was more than 90 days after notice of appeal was given. This was too late, the 90 days allowed by the statute having expired. Article 760, C. C. P. 1925; Simmons v. State (Tex. Cr. App.) 28 S.W(2d) 1084.

The judgment is affirmed.

PER CURIAM.

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


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

text:
    HANEY v. STATE.
    No. 14006.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    State’s Rehearing Granted April 1, 1931.
    Will S. Payne, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

The indictment alleges that appellant “did then and there unlawfully take one head of cattle,” etc., omitting the word “fraudulently.” The use of the word “fraudulently” is indispensable in charging theft under our statute. Byrd v. State, 89 Tex. Cr. R. 371, 231 S. W. 399; Prim v. State, 32 Tex. 158; Conner v. State, 6 Tex. App. 455; Young v. State, 12 Tex. App. 614; Muldrew v. State, 12 Tex. App. 617; Sloan v. State, 18 Tex. App. 225; Ortis v. State, 18 Tex. App. 282; Ware v. State, 19 Tex. App. 13; Chance v. State, 27 Tex. App. 441, 11 S. W. 457; Doxey v. State (Tex. Sup.) 12 S. W. 412; Watt v. State, 61 Tex. Cr. R. 662, 136 S. W. 56; Baldwin v. State, 76 Tex. Cr. R. 499, 175 S. W. 701; Newman v. State, 113 Tex. Cr. R. 517, 23 S.W.(2d) 367. In Byrd v. State, supra, it was held that an allegation that the appellant “did unlawfully take, steal and carry away” was not equivalent to an averment' that he “did then and there fraudulently take,” etc.

The judgment is reversed, and the prosecution ordered dismissed.

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.

From the supplemental transcript filed in connection with the state’s motion for rehearing, it is made to appear that, in copying the indictment in the transcript, the clerk, by inadvertence, omitted the word “fraudulently,” which was, in fact, embraced in the indictment. The record, as corrected, eliminates the fault upon which the order reversing the case and ordering a dismissal was based. From the corrected record it is shown that the indictment in appropriate language charged that the appellant did “unlawfully and fraudulently take one head of cattle,” etc.

No bills of exception are found In the record.

The contention is made that the proof fails to support the allegation in the indictment that the property was in the possession of Dr. A.. Carmichael. Reference is made to the opinion in the case of Haney v. State (Tex. Cr. App. No. 14,005, delivered Feb. 25, 1931) 36 S.W.(2d) 1033, for a discussion of the question. The testimony touching the matter of variance is the same as that set forth in the opinion last mentioned.

The state’s motion for rehearing is granted, the judgment of reversal and order of dismissal are set aside, and the judgment of the trial court is now affirmed.


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

text:
    TURNER v. STATE.
    No. 13713.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    State’s Rehearing Denied April 8, 1931.
    Vickers & Campbell, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for murder; penalty assessed at confinement in the penitentiary for a period of eight years.

This is the second appeal of this case. The opinion on the former hearing will be found in 112 Tex. Cr. R. 245, 16 S.W.(2d) 127.

The controverted legal question involves the proper treatment of the testimony of the witness Esther Turner. M. B. Turner was killed at his home. Those present were Mollie Turner, the appellant, and Esther Turner, the witness. Mollie Turner had two sons, John and Claude, who were working in the field at the time of the homicide. Immediately after the killing, Mollie and Esther Turner went to John and Claude Turner and reported the tragedy to them. Mollie Turner was weeping and Esther Turner related the circumstances which showed the killing to have been accidental; that is, that it occurred in a struggle for the possession of a pistol which the deceased was attempting to use against the appellant, Mollie Turner. John Turner was the husband of Esther Turner. From the field, all those mentioned went to the Turner home where in the barnyard lay the body of the deceased, M. B. Turner. Cobb, the justice of the peace, and Sanford, the sheriff,' were there, and in their presence Esther, Turner related the incidents of the tragedy in harmony with the previous statements made to John and Claude Turner. On' the succeeding day Mollie and Esther Turner were arrested and placed in jail. On the day of their arrest, Esther Turner described the homicide to the witness Maddox as she had previously described it to her kindred and to the sheriff and others. This was vouched for by the testimony of the witness Maddox. Two days after the arrest, the sheriff, at the request of Joe Pennington, father of Esther Turner, conducted her from the jail to the office of Mr. Lockhart, an attorney, whom Pennington had consulted with the view of retention in the prosecution of Mollie Turner. At the office of the attorney Esther Turner related the incidents of the tragedy as she had related them on the occasions mentioned above. Her father, who was present, claimed to Lockhart that she was in fear of the appellant. This Esther Turner persistently denied in the presence of Lockhart and in the presence of her father. Efforts were made to induce her to change her statement, but she declined to do so. According to Lockhart, there were several subsequent conversations with Esther Turner with the same result as above. At one of these interviews there was no one present except Esther Turner and himself, and at none of these conversations was the appellant or John Turner present. Upon the present trial, Esther Turner admitted that she had made the statements imputed to her by the various witnesses named above. Pennington, the father of Esther' Turner, did not testify.

Appellant testified and related the circumstances of the killing in accord with the first statement made by Esther Turner at or near the time of the tragedy. On the present trial Esther Turner’s description of the tragedy was in full accord with' the state’s theory that Mollie- Turner murdered the deceased. Esther Turner- declared that the reason she fálsified in her relation of the incidents of the-tragedy was she feared Mollie Turner, by whom-the witness had been threatened. She testified that she first related the true facts to her husband, John Turner, on the following evening and was told by him to keep quiet; that she had to help his mother, and, if she did not do- so, he would kill her; that she heard her husband tell the appellant that she (Esther Turner) would not disclose the true facts. This was denied by John Turner and the appellant.

'After the tragedy, Esther Turner lived with her husband at the home of his mother, the appellant, for about five years. She then Went’ to her father’s home where she remained silent touching the matter for about eighteen months. At that time she claims to have-disclosed the truth, first- to her aunt and next to her father. She had sued her husband, John Turner, for a divorce and he had entered a contest. Before the first trial of this case, the contest had been withdrawn and. the divorce granted.

On' the former trial the court declined to instruct the jury on the subject of accomplice testimony and tell them to determine whether Esther Turner was an accomplice witness. For such failure the judgment was reversed.In the opinion of the court the following language is found: “In this ease Mrs. Esther Turner said, as we understand the record, that she was influenced by threats made by appellant, possibly repeated by witness’ husband, when she made the statement corroborative of appellant’s story to the effect that' the shooting was accidental, at the time she talked to the Turner boys in the field, and the sheriff, and the justice of the peace. As we understand it, appellant was present at each of these times and places, and it would seem that the issue of duress * * * was in the case.” Turner v. State, 112 Tex. Cr. R. 248, 16 S.W.(2d) 127, 129.

It is to be noticed that on the previous trial the record failed to show that the appellant was not present at the time the statement of Esther Turner was made to various parties recounting the incidents of the tragedy. On the trial, however, from which this appeal is prosecuted, it is made to affirmatively appear that she reiterated the statements a -number of times in the absence of the appellant. From the testimony as now developed it appears that the statement was made to officers on the day of the tragedy, before the body of the deceased was removed, under circumstances apparently negativing duress and before the alleged threats to the witness were made.

The state now relies upon the testimony of Esther Turner in which she declares that she was present at the time M. B.'Turner was killed, and that Mollie Turner murdered him. If that be true, and such is the basis of the conviction, then the statement of Esther Turner, to which reference has been made above, characterizes her as an accomplice witness. In her statements repeatedly ipade she declared that the death of M. B. Turner resulted from an accidental discharge of a weapon in his possession. One who knows that a crime has been committed and purposely gives aid in order that the offender may evade arrest or trial or the execution of his sentence is an accessory under article 77, P. C. When one who is in the attitude of an accessory becomes a witness, his testimony is tested by the rule applicable to an accomplice witness. Article 718, C. C. P. See Howard v. State, 92 Tex. Cr. R. 221, especially pages 231, 232, 242 S. W. 739, 743; Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912; Littles v. State, 111 Tex. Cr. R. 500, 14 S.W.(2d) 853.

As the record at present appears, the admissions of Esther Turner upon the trial classify her as an accomplice witness. That she made the admissions was proved by those to whom she made them and admitted by her. There is no contention that they were not made. In the present instance the element of duress passes out of the case. Duress ceases to operate when its object is freed from its influence. Esther Turner could not have been in duress while she made the statements to Lockhart under the protection of her father and the sheriff, in the absence of the appellant and in the presence of her friends. She continued to suppress the truth, as she now declares it, while in the home of her father, separated from her. husband, and disconnected from the family of the appellant for many months, and did not reveal it until in a divorce action her husband opposed her will. To amount to duress the threat or act must portend immediate injury in the event the party threatened refused to aid in the criminal act. Wharton on Homicide, p. 68. If, after the danger is passed, the person threatened continues to aid in preventing prosecution, he cannot be excused on. the ground of duress. See Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991; Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A. 357, 38 Am. St. Rep. 137; Baxter v. People, 3 Gilman (8 Ill.) 368; Leach v. State, 99 Tenn. 584, 42 S. W. 195; Rizzolo v. Com., 126 Pa. 54, 17 A. 520; Paris v. State, 35 Tex. Cr. R. 82, 31 S. W. 855. See also Servina v. State, 109 Tex. Cr. R. 443, 5 S.W.(2d) 510.

The charge of the court should have, in appropriate language, made it clear to the jury that Esther Turner was an accomplice witness, and that no conviction could be founded upon her testimony unless her statements were corroborated by other evidence, as required by article 718, C. C. P. Such an instruction was requested and exception reserved because of its omission.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, J.

In our original opinion reference was made to certain statements of the witness Esther Turner with the conclusion that such statements “characterized her as an accomplice witness.” It is then said in the opinion: “One who knows that a crime has been committed and purposely gives aid in order that the offender may'evade arrest or. trial or the execution of his sentence is an accessory under art. 77, P. C. When one who is in the attitude of an accessory becomes a witness, his testimony is tested by the rule applicable to an accomplice witness.”

' The state calls attention to the fact that Esther Turner was a daughter-in-law of appellant, and therefore could not be an accessory under article 78, P. C. (1925) which reads as follows: “The following cannot be accessories; The husband or wife of the offender, his brothers and sisters, his relations in the ascending or descending line by consanguinity or affinity, or his domestic servants.” It may be conceded that the state’s position in this regard is correct. See Smith v. State, 51 Tex. Cr. R. 137, 100 S. W. 924; Fondren v. State, 74 Tex. Cr. R. 552, 169 S. W. 411. We understand one of the contentions of the state to be that, Esther Turner being excluded by the terms of said article 78 from prosecution as an accessory, she cannot be held to have been an accomplice witness as a matter.of law. We think the conclusion contended for by the state does not necessarily follow. Of course, if the facts show that a witness was connected with the crime as an “accessory,” under article 77, P. C. (1925), and could be prosecuted as such, the party would by reason of the statute be an accomplice witness when called by the state to testify. But if such witness be excluded as an accessory by the terms of article 78, P. C. — that is, if the witness could not be prosecuted as an accessory under the terms of said article — it by no means follows that said witness by his conduct might not so connect, himself with the case as to characterize him as an accomplice witness as a matter of law when called by the state to testify. We think it a sound proposition ordinarily that one who would be liable to prosecution as an accessory but for the exemption of article 78, P. C., would fall under the classification of an “accomplice witness” when called by the state to testify.

We are not able to distinguish this case from Littles v. State, 111 Tex. Cr. R. 500, 14 S.W(2d) 853. There Ellis testified on the trial to facts making out a case of murder against accused. His statements theretofore made to officers were that the killing was an accident, the effect being to aid accused to evade prosecution. In the original opinion in that case it was said that evidence which would characterize Ellis as an accessory would also classify him as an accomplice witness. The contention of the state on motion for rehearing there was the same as is now urged by the state in this case. There it was contended that Ellis was a “domestic servant,” therefore could not be an accessory in the crime under article 78, P. C. That contention was sustained as sound, but Ellis was still held to have been an “accomplice witness.” In this case Esther Turner testified to facts which, if true, would make appellant guilty of murder, but her former statements were to the effect that the killing was accidental. It is the contention here that Esther Turner cannot be an accessory to the crime under article 78, P. C., because she was the daughter-in-law of appellant. That contention appears sound, but, under tbe undisputed facts, as to ber statements prior to tbe trial, we see no reason for bolding other than that she was an accomplice witness. See Conant v. State, 51 Tex. Cr. R. 610, 103 S. W. 897; Eldridge v. State, 111 Tex. Cr. R. 451, 14 S.W(2d) 1036.

We commend tbe able district attorney who filed for tbe state tbe motion for rehearing. It shows much labor expended in the investigation of authorities to which we are referred. We have carefully examined them. It must be admitted that some are confusing by reason of expressions such as “accessories” and “accomplices” when it would have been more accurate to have designated the parties referred to as “accomplice, witnesses.”

Believing the correct conclusion was reached in our original opinion, the motion for rehearing is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    WALL v. STATE.
    No. 13794.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1930.
    Rehearing Granted April 1, 1931.
    L. D. Hartwell, of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

There are five bills of exception in -the record. In each of same certain testimony is set out as having been admitted over objection, and the objection made is also stated. No facts are certified in any of said bills from which this court might ascertain whether the objection made was good or not. Such bills are of no avail. The rules are plain and have been referred to in hundreds of cases. The bill in and of itself must manifest that the objection is well taken; that is, there must be stated facts, surroundings, and circumstances from which this court may see that error was committed in the introduction or rejection of testimony. The state’s testimony shows a sale by appellant' of whisky for which he received payment. The facts controverting the state’s case were before the jury, and the law of the case was submitted in a manner apparently acceptable to appellant.

The facts being sufficient to make out a case against appellant, and no error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The state’s witnesses made out a case of the sale of whisky. L. A. Wall, the father of appellant, testified to an alibi for him, claiming that appellant was at the time of the alleged sale sick in bed with the “flu.”

Bills of exception Nos. 1, 2, 3, and 5 complain of the state’s cross-examination of the witness in some particulars. We think bill of exception No. 5 presents error. A discussion of the other bills is pretermitted.

Bill of exception No. 5 shows that, while L. A..Wall was being cross-examined and after he had testified that appellant had worked some in different places at such work as he could get, he was then asked by state’s counsel the following question: “You know he had the reputation of being a bootlegger did-n’t you?” The bill recites that appellant’s objection to the question was sustained by the court and the jury instructed not to consider the question nor the answer of the witness. The answer of the witness, if any, is not set out in the bill. That the state had no right to make any such proof as the question was intended to elicit is definitely decided in Burns v. State, 94 Tex. Cr. R. 533, 252 S. W. 508; Gothard v. State, 94 Tex. Cr. R. 538, 252 S. W. 508; Wilmering v. State, 100 Tex. Cr. R. 169, 272 S. W. 463; McMullen v. State, 98 Tex. Cr. R. 229, 265 S. W. 582, 583; Lovelady v. State, 95 Tex. Cr. R. 571, 255 S. W. 415; Mitchell v. State (Tex. Cr. App.) 32 S.W.(2d) 199. Even if appellant had put in issue his general reputation for truth and veracity, or as a law-abiding citizen, it would not authorize the state to prove, or attempt to make proof, that he bore the reputation of a bootlegger. It was especially so held in Burns Case, supra. The bill of exception not reciting the answer of the witness, if any was given, it then becomes necessary to determine what the effect of the question was, even though the court promptly sustained objection to it and directed the jury not to consider it. Even if the question was unanswered, it is extremely doubtful if the evil effect of the question itself could be relieved against, although the court acted promptly and did all he could by directing the jury not to consider the improper question. The writer had occasion to express himself in the following language in Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029, 1033, where accused had not put his reputation in issue, and the state was attempting to do so: “We frequently decline to reverse cases where improper questions were asked and objections were promptly sustained; but we can scarcely conceive a question which in and of itself could be more hurtful to an accused than one calling for an answer which would put in issue his general reputation. It places him in the unfortunate attitude of having to let the question pass unchallenged, thereby permitting the state to do.what it plainly has no right to do, or of objecting thereto in the presence of the jury, leaving the very natural impression upon them that he feared an answer which would have been detrimental to him.”

In the present case, even though appellant may have put his general reputation in issue as to truth and veracity, or as a law-abiding citizen (which it is discoverable from the record he did not do), the state had no right to ask the question it did, and any kind of an objection would reach it. Appellant was put in the embarrassing attitude suggested in the quotation from the opinion in the Childress Case. See, also, Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430; Farar v. State, 112 Tex. Cr. R. 199, 15 S.W.(2d) 1050; Day v. State (Tex. Cr. App.) 34 S.W.(2d) 871; Coon v. State (Tex. Cr. App.) 35 S.W.(2d) 419, 420. In all of the cases referred to questions arose very similar to the one discussed in the present case. In Farar’s Case, supra, the principle is discussed at some length by both Presiding Judge Morrow and Judge Lattimore, and in Coon’s Case by Judge Lattimore, who said: “We cannot gauge the evil effect upon the jury of such' improper question.”

In the present case punishment was assessed at more than the minimum. As was said in the Harrison Case, supra, with reference to an argument, it is impossible for us to know to what extent the improper question contributed -to this result. We cannot say from the record that it did not contribute to it.

The motion for rehearing should be granted, the judgment of affirmance set aside, and the judgment of the trial court reversed, and the cause remanded, and it is so ordered.


author: CALHOUN, J.

text:
    DESHAZO v. STATE.
    No. 14092.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    H. L. Edwards of Nacogdoches, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   CALHOUN, J.

Under an indictment charging an assault with intent to murder one Bud Collins, appellant was convicted of aggravated assault, and his punishment assessed at a fine of $50 and thirty days in jail.

The'State’s testimony shows an unprovoked cutting by the appellant of said Bud Collins with a knife, while the testimony of the appellant shows that it was committed in self-defense from an actual attack on the part of said Bud Collins. The facts seem to show that the parties got into a difficulty at a box supper; that they got to scuffling or wrestling, which eventually ended in a fight or an attack by one upon the other, the state’s theory being that the appellant made the attack and committed the assault and inflicted several wounds upon the prosecuting witness, Bud Collins. On the other hand, the testimony of the appellant was to the effect that the assault was committed in self-defense and while the said Bud Collins was attacking the appellant and after he had struck him with his fist and a pair of knucks and broken his nose.

The appellant excepted to the court’s charge upon the grounds that it limited appellant’s right of self-defense only as against an unlawful attack producing a reasonable expectation or fear of death or serious bodily injury, and that in doing so his limitation of the rights of the appellant was too restrictive and contrary to the law; that the appellant had a legal right to defend himself from any unlawful attack on the part of the party assaulting, and to limit the rights of the appellant to defend himself against an attack producing a reasonable expectation or fear of death or serious bodily injury is denying the appellant his rights under the law, and resulted in prejudice to his legal rights, and is telling the jury that he cannot defend himself from any unlawful attack on the part of the party assaulting.

The learned trial judge charged upon self-defense, but throughout the charge he made the right of the appellant to an acquittal depend on the ground of self-defense against an attack upon the part of Bud Collins producing a reasonable expectation or fear of death or serious bodily injury.

The evidence in this case was conflicting as to whether the appellant was being attacked by Bud Collins, and, if attacked, whether with knucks or only with his fists. This evidence raised the issue of aggravated assault, and that issue was properly submitted to the jury by the court. The jury was noc anywhere in said charge instructed as to the right of the appellant to defend himself against an unlawful attack upon the part of the witness Collins, even though it was not of sufficient gravity to evidence a purpose to either kill or seriously injure appellant. Aggravated assault being one of the issues in this case, as well as assault to murder, a charge which only authorized an acquittal if it reasonably appeared to appellant that he was in danger of dearth or serious bodily in-, jury was too restrictive of the rights of appellant under the decisions of this court, which have uniformly held that one charged with any grade of assault has the right of self-defense against any unlawful attack, even though such attack does not amount to an effort to inflict death or serious bodily injury. Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Nash v. State, 108 Tex. Cr. R. 474, 1 S.W.(2d) 635; Forest v. State, 108 Tex. Cr. R. 159, 300 S. W. 51; Hix v. State, 51 Tex. Cr. R. 432, 102 S. W. 405, From, these authorities we are forced to the conclusion that the trial judge was in error in his charge so excepted to, and that the appellant’s contention should be sustained.

Appellant by bill of exception complains that, after the appellant had pleaded not guilty and was duly sworn, he testified on direct examination for himself, and that the trial court permitted the state on cross-examination of appellant over his objection to ask the following question and elicit the following answer: “Q. One time before this, didn’t you cut Tom Looney? A. Yes.”

This testimony was excepted to by the appellant at the time it was offered for the following reasons, to wit: “It is prejudicial to. the defendant; immaterial and serves no. purpose. Another transaction which does not show system, intent or identity, and is proof of a disconnected act of violence on another-party; which also tends to show that the defendant is a criminal in general.” The court overruled said objection and required the appellant t'o testify that he had cut said Tomi Looney, to which appellant then and there; excepted. The facts in this case show that: there was no denial by appellant in person or-through his witnesses that he did not cut the-witness Collins, the offense with which he-was charged. There was no question of identity, intent, or system raised by the evidence. Said evidence was not part of the res gestae-of the offense, but simply proof that appellant had at some time before cut some other-person, which was not in any way connected, with the offense charged against the appellant.

Every person charged with a crime should be tried on the merits of each case and proof' of extraneous crimes which dqes not go to-show intent, identity, or system, or which is not a part of the res gestse, is not admissible if it could only show that the defendant was a criminal generally. See Branch’s P. C. § 166, for collation of authorities. Gray v. State, 77 Tex. Cr. R. 221, 178 S. W. 337; McClary v. State, 73 Tex. Cr. R. 430, 165 S. W. 572; Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 939, 940. The admission of such evidence is under the authorities such error as calls for a reversal of this case.

For the error shown, the judgment of the trial court is reversed, and 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.


text:
    WEBB v. STATE.
    No. 14223.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Yiekers & Campbell, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was indicted in the district court of Hockley county, Tex., and convicted on the first count of the indictment charging the unlawful transportation of intoxicating liquor. Punishment was assessed at one year in the penitentiary. Sentence was duly passed, excepted to, and notice of appeal given, and this cause is regularly before this court on appeal and for review.

There is no statement of facts or bill of exception in this record, and the only matters that can be considered on this appeal relate to alleged errors in the charge of the trial court called to our attention in appellant’s brief.

One of the objections to the charge of the court to the jury was the refusal to give a requested peremptory instruction to adquit the appellant. Also objection to all portions of the court’s charge on principal offenders, especially to paragraphs 4 and 5 because the evidence herein does not raise the issue./ These propositions! cannot be considered in the absence of a statement of facts, and the court can only look to the language of the charge as written and determine whether or not the court’s charge presented fundamental error.

Appellant objected to tha,t part of the court’s charge on principals, which read as follows: “You are instructed that all persons are principals who are guilty of acting together in the commission of an offense.”

Appellant objected to this language because the court infers that an offense has been committed herein, and in effect so instructs the jury. The charge on principals is in the language of the statute, and a charge in the language of the statute is correct where the evidence supports the theory presented. Branch’s P. C. § 686; Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583; Slain v. State, 65 Tex. Cr. R. 495, 145 S. W. 366, 367; Espinoza v. State, 73 Tex. Cr. R. 237, 165 S. W. 208, 214.

Appellant also objects to paragraph 3 of the court’s charge, defining the word “transport” as follows: “As used in this charge the word ‘transport’ means to carry or to convey anything from one place to another.” This was objected to on the ground that same is an incorrect statement of the law, prejudicial to the appellant, and authorized a conviction of appellant whether or not he transported spiritous liquors on the occasion as charged in the indictment.

The court was merely defining what was meant by the word “transport” as used in another paragraph of the court’s charge. If it was necessary for the court in this case to give a definition of the word “transport,” the definition given was substantially correct and presents no reversible error. Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425.

No reversible error appearing in. tlie record, the judgment of the trial court is affirmed.

PER OURIAM.

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


author: LATTIMORE, J.

text:
    DUNBAR v. STATE.
    No. 14120.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    F. O. Fuller and E. E. Fuller, 'both of Houston, and H. S. Lilley, of Conroe, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, ten years in the penitentiary.

The state’s theory, supported by much evidence, was that following intimacy between deceased and appellant, both of whom were married, appellant got a divorce from her husband for the purpose of marrying deceased; that thereafter no marriage took place, but on the day of the homicide she saw him in company with another woman and demanded to know why he was treating her as he was, and stabbed him twice or three times with a knife, which resulted in his death in a few moments. Four or five eyewitnesses testified for the state that deceased did nothing and said nothing to appellant at the time, but that she got upon the running board of the car in which he was with a woman, reached over the other woman and stabbed deceased, who got out of the car. Witnesses swore that appellant said she had told the s- of a b-that she was going to kill him; also that after stabbing him she started around the car toward him,' but was stopped by witnesses who told her she had already killed him. These witnesses denied any threatening demonstration on the part of deceased, but affirmed that deceased drove up to the place in a car with another man and two women; that he got out of the car with one of the women and went into a little café; that while he was in the café appellant walked up to the car, and that upon deceased coming out and getting in the car the assault took place as above stated.

The defense put witnesses on the stand who swore that prior to the homicide deceased had threatened appellant. Appellant herself gave a rather rambling and somewhat incoherent story of her relations with deceased, his treatment of her, her movements on the day of the homicide, and claimed that when she cut deceased he had made a move as though to get a pistol, and she thought he was going to attack her.

Appellant has two bills of exception complaining of the rejection of testimony, to the effect -that something like a year -before the killing her then husband appealed to one of the witnesses by whom the testimony was offered, and who was an officer, for protection from deceased who was trying to get appellant to leave her husband and come and live with him. Manifestly such testimony was objectionable as hearsay, and we further fail to see any relevance whatever.

It appears that, after the exceptions to the court’s charge were presented, said charge was changed evidently to meet the objections, and the charge appearing in the record seems not open to any of the exceptions leveled at same. If any exceptions were taken by appellant after the charge was amended or corrected, same do not appear in'the transcript.

The special charges, refusal of which is complained of in bills of exception Nos. 4 and 5, seem to be fully covered by the main charge. We are also of opinion that the special charge set out in bill of exception No. 2, which complains of its refusal, was correctly rejected as being on the weight of the testimony. We are of opinion that the record shows this appellant to have received a fair trial, and that under the facts the jury were inclined to be merciful to her possibly because she was a woman.

No error appearing, the judgment will be affirmed.


author: BAROHS, J.

text:
    WICHITA FALLS & S. RY. CO. v. HAMILTON.
    No. 1039.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1931.
    Chandler & Keith, of Stephenville, for appellant.
    Oxford & McMillan, of Stephenville, for ap-pellee.
   BAROHS, J.

This suit was instituted by appellee against appellant to recover damages for personal injuries received by him as well as damages to his automobile which were received in a collision between his automobile and a moving train. The record shows that the train crew of appellant came into Dublin with twenty-four ears of freight; that it Avas necessary for them to do some switching to transfer some of said cars to another railroad; that, in doing said switching, the train crew hooked' two oil cars -and one box ear on the front of the engine, and pushed same ahead of it; that, as said cars were being pushed across a street in Dublin, the front car struck appel-lee’s automobile and caused the alleged damages. The collision occurred about 9:30 at night. ■

The cause was tried to a jury and submitted on a number of special issues. The jury found that it was negligence for appellant to push the box car and oil tanks in front of the headlights on the engine; that it was negligence for appellant to fail to have a brakeman or flagman on the front end of said oil tanks to signal or warn appellee of the approaching train; that it was negligence for appellant to fail to have a flagman at the street crossing where the collision occurred, and found that each of said acts Avas a proximate cause of the injury. The jury further found that appellee did not fail to keep a proper lookout at the time ho attempted to cross the railroad track; that ho did not fail to listen for the approach of the train or for the signals given; that he did not fail to slacken his speed sufficiently to enable him to .look for the approaching train; that he Avas not guilty of negligence in failing to stop his car before he attempted to cross the track; that he Avas not driving his car at a negligent rate of speed at the time he crossed the railroad track, and further found that the collision was not an unavoidable accident.

Appellant submitted to the trial court and requested that it give same a correct definition of the words “proper lookout” as used in the issue,which asked whether appellee failed to keep a proper lookout for the approaching train. The trial court refused to submit the tendered definition or any other definition of “proper lookout,” and appellant assigns error. We sustain this assignment. Article 21S9 of the Revised Statutes requires the trial court, in submitting special issues, to submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and,render a verdict on such issues. The Court of Civil Appeals in Northern Texas Traction Co. v. Jenkins, 260 S. W. 175 (error dis.), a case very similar to this, specifically held that it Avas error for the trial court to refuse to define the term “a proper lookout.” The above-quoted authority Avas cited with approval by the Commission of Appeals in Robertson & Mueller v. Holden, 1 S.W.(2d) 570, when it held that it was error for the trial court to refuse to define the words “new independent cause,” and was again cited, with approval by the Court of Civil Appeals in Eastern Texas Electric Co. v. Rhymes, 1 S.W.(2d) 688 (error dis.), where it Avas held that it was error for the trial court to refuse to define the term “emergency.”

For the error stated, the judgment of the trial court is reversed, and the cause re-mandedv