author: GRIFFIN, Justice. PER CURIAM. HAMILTON, Justice HAMILTON, Justice'

text:
    SKELLY OIL COMPANY, Petitioner, v. Gertrude L. ARCHER et al., Respondents.
    No. A-7884.
    Supreme Court of Texas.
    Nov. 29, 1961.
    On Rehearing Feb. 21, 1962.
    Concurring Opinion April 4, 1962.

      C. L. Swim, Tulsa, Okl., Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for petitioner.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for respondent,
   GRIFFIN, Justice.

This action was brought by Mrs. Gertrude Archer et al. against Skelly Oil Company in trespass to try title and, in the alternative, for termination of an oil and gas lease on four and three-fourths sections of land upon which the primary term had ended. The lease was entered into between Mrs. Archer as lessor and Skelly Oil Company as lessee, on August 5, 1943, for a primary term of ten years, and the property described in the lease was in Hansford County, Texas, and covered all of Sections 4, 282, 285 and 292, and the S/2 and NW/4 of Section 284, except ½ of the minerals in the SE/4 of Section 284 never owned by the lessor, totaling 3,040 acres more or less. The parties named as plaintiffs below, other than Mrs. Gertrude Archer, acquired their interest by conveyance from Mrs. Archer after the original oil and gas lease was executed.

This is the second appeal of the case. On the first trial motion for summary judgment by Skelly Oil Company was sustained, the effect of which was a holding by the trial court that the lease was valid and in force as to the entire 3,040 acres covered thereby. On appeal from that judgment the case was reversed and remanded for trial on the merits as to the effect of the provisions of the rider attached to the lease contract and with regard to whether the two gas wells situated on the leased acreage were producing in paying quantities. The Court of Civil Appeals’ opinion on the former appeal is reported in 314 S.W.2d, at page 655. Application for writ of error to this court was refused, no reversible error, with per curiam opinion reported in 159 Tex. 154, 317 S.W.2d 47.

The oil and gas lease in issue was entered into on a form commonly used in Texas and contained a habendum clause as follows :

“It is agreed that this lease shall remain in force for a term of ten years from date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.”

Subsequent to the habendum clause is the usual clause providing for payment of ⅛ of production, and following the royalty provision is the annual rental provision providing for the payment of $3,040.00 annual delay rental. Attached to the lease contract, directly over the above-mentioned annual rental payment clause, is a typewritten rider as follows:

“In the event of gas production being obtained on the above 3,040 acre lease, not more than 640 acres shall be held by each well, and annual rentals shall be paid on the balance of the acreage. In the event that a gas well is drilled, the revenue from same shall be equal to, or exceed the amount of the annual rental payments, based on one well to each Section. In no event shall the payments received by the lessor amount to less than $3,040.00 during any 12 months period. This rider and provision shall be controlling over any conflicting provisions contained in the printed form attached hereto and made a part hereof.”

Trial of the action now before this court was to a jury in the District Court of Hans-ford County, Texas. At the close of the evidence the court held:

“ * * * as a matter of law and also by uncontroverted facts as shown by the evidence and the testimony and the Court now finds and holds that the oil and gas lease in question dated August 5, 1943, has terminated as to Section 4, Block ‘P H&GN RR Co. Survey; all of Section 282, Block 2, GH & H RR Co. Survey; and the South half (S/2) and the Northwest Quarter (NW/4) of Section 284, Block 2, GH&H RR Co. Survey, all in Hansford County, Texas, same having terminated at the expiration of the primary term of said lease, to-wit: August 5, 1953, and further, that said oil and gas lease which is recorded in Volume 9, page 286, Lease and Contract Records of Hansford County, Texas, is a valid and subsisting lease covering Section 285, Block 2, GH&H RR Co. Survey, Hansford County, Texas, same being continued after the primary term of said lease down to the date of trial by virtue of production of gas in paying quantities from said Section 285.” (Emphasis added.)

The above holding left only Section 292 for consideration in the trial. One special issue was submitted to the jury, and this issue inquired if the gas well on Section 292 had failed to produce gas in paying quantities for the three-year period subsequent to the primary term, August 5, 1953, to August 5, 1956, the evidence having been limited by the court to this period. The jury answered that the well had failed to produce in paying quantities. On the basis of the holding by the trial court and the jury verdict, judgment was entered that respondents have title and possession of Sections 4, 282, 292 and the South half (S/2) and the Northwest quarter (NW/4) of Section 284, and that the lease was to continue in full force and effect as to Section 285. Upon appeal by Skelly the trial court’s judgment was affirmed. Tex.Civ. App., 334 S.W.2d 855.

There has been no oil discovered or produced on any of the land covered by Skelly's lease. Prior to the expiration of the primary term of the lease a gas well was brought in on Section 285 and another well on Section 292, and both wells were producing gas at the time of the trial.

No complaint is made in this court of the judgment of the trial court and Court of Civil Appeals’ holding that Skelly’s lease is in full force and effect as to Section 285, Blk. 2, Hansford County, Texas. Therefore, that judgment is here affirmed.

Petitioner Skelly Oil Company seeks to have the lease declared valid and subsisting in its entirety as to all of the four and three-fourths sections described therein.

On the first appeal of this case, and being an appeal by the Archers from the trial court’s action in favor of Skelly, the Court of Civil Appeals said that to uphold the summary judgment it must be held as a matter of law that the oil and gas lease, with the rider attached, extended the lease beyond the primary term on all the land described in the lease by virtue of production of gas on Sections 285 and 292 during the primary term. Skelly makes the same contention on this appeal. As to this point, the Court of Civil Appeals on the first appeal reversed and remanded the summary judgment thus overruling the above contention. 314 S.W.2d 655; 159 Tex. 154, 317 S.W.2d 47, wr. ref. N.R.E.

The only significance of our refusal of writ of error, “no reversible error”, on the former appeal, in so far as the construction of the lease is concerned, was to Approve the'judgment of the Court of Civil Appeals and necessarily, therefore, to reject Skelly’s contention that, as a matter of law, production in paying quantities from a single well would extend the life of the entire lease beyond the primary term. Our action did not have the effect of approving the construction placed on the lease by the Court of Civil Appeals.

On retrial of the case — from which this is an appeal — Mrs. Archer pleaded, alternatively, that if the lease with rider attached was ambiguous, all parties intended by attachment of the rider to modify the provisions of the lease so that after the expiration of the primary term each well producing in paying quantities would hold only 640 acres; that is, that as to all sections on which there was not a well producing in paying quantities the lease would terminate. Testimony was offered by the Archers in support of this pleading. At the conclusion of the testimony the Archers filed a motion for an instructed verdict, in the first two paragraphs of which it moved the court to find, as a matter of law, that their construction of the lease was a correct one. The court granted Paragraphs 1 and 2 of such motion, and it was pursuant to that action that the court included in its judgment the finding, hereinabove quoted, “as a matter of law cmd, also by uncon-troverted facts as shown by the evidence and the testimony.” (Emphasis added.)

We have concluded that the attachment of the rider makes the lease ambiguous. Not only is its meaning uncertain and doubtful, thus meeting the test of ambiguity announced in Neece v. A. A. A. Realty Company, 159 Tex. 403, 322 S.W.2d 597, our latest decision on the subject, but it is also subject to more than one reasonable meaning, unresolvable by rules of interpretation, thus meeting the stricter test of ambiguity laid down in Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154. The primary object of courts in construing written contracts is to arrive at the intention of the parties. The provisions of the rider may be interpreted as modifying the rights and obligations of the parties only during the primary term of the lease. This is the interpretation for which Skelly contends. They may be interpreted as modifying the rights and obligations of the parties throughout the life of the lease. This is the interpretation for which the Archers contend. But if they are interpreted as modifying the rights and obligations of the parties throughout the life of the lease, they may be further interpreted as meaning that after the primary term the entire lease could be kept alive by production from a single well plus the payment of a sufficient sum to equal $3,040, annually. This is the construction originally given by Skelly as is shown by Skelly’s annually tendering checks to the amount of $3,040. Any one of these interpretations would be equally reasonable, or unreasonable, as the case may be, and the proper construction therefore becomes a fact question.

The burden was on the Archers, as plaintiffs, to prove their case. They could prove it in either of two ways: by securing a holding that the lease was unambiguous and could be given only the construction for which they contend, or, if the lease were ambiguous, by introducing evidence that the parties intended it to have the construction which they gave it. Neece v. A. A. A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 599, 603. While contending that the lease was unambiguous, the Archers nevertheless introduced evidence bearing on the intention of the parties. If the evidence on this issue was conflicting, the Archers also should have secured submission of an issue to the jury. This they did not do. Instead, in response to their motion, the trial court found, “as a matter of law and also by uncontroverted facts as shown by the evidence and the testimony,” that the parties intended the lease to have the meaning attributed to it by the Archers. Skelly’s theory of the case has been — and is — that the lease with the rider attached is unambiguous. In none of its pleadings filed in the trial court, nor in any of its briefs in the Court of Civil Appeals or this Court, has Skelly asserted that there is any ambiguity in the lease contract with the rider attached. Neither has it challenged on appeal the correctness of the action of the trial court in deciding questions growing out of an ambiguous situation in favor of the Archers as a matter of law rather than submitting the same to the jury. Skelly by Points 4 and 7 in its briefs in the Court of Civil Appeals contended that the uncon-troverted evidence and the terms and provisions of the lease showed that the lease had not terminated as to any of the land. This contention is consistent with Skelly’s theory of the case that the lease is unambiguous. We do not agree with this contention. Skelly does not in this Court seek to change the theory on which it tried this case. It must stand upon its contention that, as a matter of law, the rider did not modify the habendum clause of the lease and that, therefore, production in paying quantities from a single well would, as a matter of law, keep the entire lease alive after the expiration of the primary term. We rejected this construction of the lease on the first appeal by denying Skelly’s application for writ of error, and we reject it now.

To sustain its position that the lease had not terminated on any of the land described therein, Skelly placed principal reliance upon the cases of Waggoner Estate v. Sig-ler Oil Co., 1929, 118 Tex. 509, 19 S.W.2d 27; Henshaw v. Texas Natural Resources Foundation, 1949, 147 Tex. 436, 216 S.W. 2d 566; Lido Oil Co. v. W. T. Waggoner Estate, 1930, Tex.Civ.App., 31 S.W.2d 154, wr. ref.; Johnson v. Montgomery, 1930, Tex.Civ.App., 31 S.W.2d 160, wr. ref.; and Glasscock v. Sinclair Prairie Oil Company, 185 F.2d 910, U.S.C.A. (5th Cir., 1950), and a Texas case.

None of these cases are in point nor controlling in the case at bar. The two Wag-goner cases are the same case but different appeals. The wording of the lease there involved was different from our lease and rider. There was no rider attached to the lease in either of the Waggoner cases. In those cases cancellation of the lease was sought on the basis that the lessee Oil Company had failed to properly develop the leased premises and, therefore, the leases had expired.

The Henshaw case, 147 Tex. 436, 216 S.W.2d 566, bears not the slightest resemblance to our case, either as to facts or the legal principles involved. It was a suit between joint venturers in which one sought to forfeit and cancel the interest of the other in the common property.

In Johnson v. Montgomery, 1930, Tex. Civ.App., 31 S.W.2d 160, wr. ref., the parties to an oil and gas lease provided for a primary term of five years and the lease to last as long thereafter as oil or gas, or either of them, was produced from said land. Only two gas wells were completed on the land during the primary term. Under the terms of a contract contemporaneously executed by the lessors and lessee in the oil and gas lease (and which contract by reference made the lease a part of the contract) when lessee commenced a test well on any section he had the right to select three (3) other sections to be freed from paying delay rentals. The lessee had selected three additional sections for each well. At the end of the primary term, lessors brought suit to cancel and forfeit the lease as to all the 22,485 acres covered by. the original lease, except the eight sections in the two blocks with the two gas wells. Among other contentions lessors claimed that by virtue of freeing the eight sections under the lease from delay rentals under the contract, the habendum clause of the lease had been changed so that it held only such eight sections and terminated as to the balance. As to this contention the court held the contract covered only the delay rentals due under the primary term and did not affect the duration of the estate beyond the primary term. Such holding was correct under the contract there involved. There can be no question that the contract involved in that case made no attempt to change or modify the habendum clause of the lease, but applied only to the delay rentals which were payable only during the primary term. No language is used — as is found in our case — that one gas well should hold not more than 640 acres out of the total acreage covered by the lease.

In the case of Glasscock v. Sinclair Prairie Oil Co., 185 F.2d 910, 911 (5th Cir., 1950), the lease contained a provision that drilling or reworking operations, or production from any well on the land should continue the lease in force only in so far as the lease covers the tract on which the well was located, and not to exceed 640 acres to be selected by lessee. It then proceeds, “The aforementioned rental payable by Lessee” to cover deferment of drilling operations for twelve months each “ * * * during the primary term shall be reduced by * * One Dollar ($1) per acre for each acre of land included within any tract or tracts which Lessee is holding or entitled to hold on the due date of the rental payment in question * * The court held that the provisions of the paragraph from which we have quoted applied only to the delay rentals payable during the primary term. The court further said these provisions were to insure the lessor a continuation of the rental payments instead of a cessation of such payments in the event of drilling or production under the lease. It was pointed out that without this provision the drilling, reworking operations or production from one well would have caused a cessation in payment of the entire delay rentals during the primary term. To avoid this the provisions insured the lessor a continuation of delay rental payments with only a credit of $1 per acre per unit of 640 acres on which there was located a well. Under the language of the instrument under consideration in the Glasscock case, it is very plain that only the primary term was involved.

This holding makes it unnecessary to discuss any of Skelly’s points of error in the application, except those complaining of the court’s charge and instructions in connection with the one issue submitted inquiring if the gas well on Section 292, Block 2, had failed to produce in paying quantities from the end of the primary term, August 5, 1953 to August 5,1956.

Skelly assigns error to paragraphs four and five of the general instructions contained in the court’s charge to the jury. Paragraph 4 is as follows:

“The words, ‘paying quantities’, as used in this charge and as applied to a gas lease, mean that the gas discovered must be sufficient to pay the lessee a profit, though small, over operating and marketing expenses, although it may never repay the cost of drilling the well.”

Paragraph 4 is a correct statement of the law as applied to the case before us where it is sought to keep the lease alive beyond the primary term by production from the well or wells on the leased land. In our case that land is Sec. 292, containing 640 acres. Summers: Oil and Gas, Permanent Ed. Vol. 2, Sec. 306, p. 330. 13 Oil and Gas Reporter 516; Garcia v. King, 1942, 139 Tex. 578, 164 S.W.2d 509; Clifton v. Koontz, 1959, 160 Tex. 82, 325 S.W.2d 684, syl. 7, 79 A.L.R.2d 774. We hold there was no error in the court’s defining “paying quantities” as it did.

Paragraph 5 is as follows:

“In determining 'operating and marketing expenses’, as that term is used in this charge, if any there be, you may consider such expenses as taxes, overhead charges, labor, repairs, depreciation on salvable equipment, if any, and other such items of expense, if any. In this connection, you are instructed not to consider any costs or expenses in connection with the original drilling of the well.”

Skelly’s objections to this paragraph are that it permitted the jury to take into consideration “depreciation on salvable equipment.” Skelly also objects that overhead charges are not proper items to be taken into consideration in determining whether or not a well is producing in paying quantities.

In Clifton v. Koontz, 1959, 160 Tex. 82, 325 S.W.2d 684, we were not called upon to pass on the question whether or not depreciation on producing equipment, which is salvable, should be charged.

An address entitled “Production in Paying Quantities: Technical Problems Involved”, delivered by Mr. Edwin M. Cage to the Tenth Annual Institute on Oil and Gas Law and Taxation, p. 61, § 90 et seq., discusses these two items. He says with regard to depreciation:

“All this points up the one inescapable conclusion that the bookkeeping entry of depreciation is in no sense an ‘out-of-pocket’ lifting expense and it should never be included as an item to be deducted from revenue to determine whether a lease is still producing in paying quantities. There is a possibility, however, that the lessor in a carefully prepared case could establish ‘actual depreciation’ (as distinguished from the bookkeeping entry) as a legitimate charge to lifting expense. For example, in pumping a well the lessee may be using some equipment which has been ‘written off’ completely and on which lessee is no longer taking any depreciation. Still that piece of equipment may have a current salvage value. To some extent continued operations are wearing out that equipment and reducing its salvage value. The proof may be difficult and the reduction in value may be slight, but the fact remains that there is ‘physical depreciation’ which is properly chargeable to lifting expense.
“But you say, ‘This is not out-of-pocket money.’ Perhaps not, in the literal sense, but it is certainly an out-of-pocket asset in the same sense as if a lessee supplied his fuel and grease from a warehouse stockpile rather than from current cash purchases. In either situation the consumption of the asset can only be attributed to the lifting expense of the well.”

While our well has no pumping equipment, it does contain certain items of salvable equipment necessary to produce the gas from the well — -and not a part of the drilling and completion expense — the life of which is being used up in producing the gas sold from the well. This equipment should be depreciated if the evidence shows it is subject to depreciation as a part of the expense in producing and marketing the gas.

As to the overhead charges, Mr. Cage in his address concludes that they are more difficult for the lessee to explain than depreciation. He concludes that those items of overhead charges which can be traceable to the actual expense of production of the well’s product for marketing should be considered in determining whether or not the well is producing in paying quantities. Whitaker v. Texaco, Inc., 283 F.2d 169, headnotes 9-10, (10th Cir., 1960).

In the case at bar Skelly’s witnesses testified that in arriving at the figure of net profit from the well on Section 292, there were no charges of minor repairs, depreciation of salvable equipment, well inspections, and other items of expenses for this particular well. The witnesses said these items would ordinarily be performed by the local people in charge of the operations and would not show up on the vouchers submitted to their offices for recording. One witness testified that although it took labor for conditioning the well, repairs and supplies, etc., there was no evidence of any allocation of these items in figuring the net profit as shown on the exhibits relied upon to show a profit in operation.

Skelly complains that the court’s charge permits the jury to consider taxes, labor and repairs, “and other such items of expense, if any,” in determining whether or not the well was producing in paying quantities. The labor, repairs, and taxes (in this case only gross production taxes and ad valorem taxes were inquired about or testified to) which were allocated to this well and which were used on this well in order to properly produce the well or keep it producing, are proper items of expense to be considered. We find no error in the “other such items of expense”, and do not believe that this phrase led the jury into error.

According to the testimony of Skelly’s accounting witness, Jiths of the production from this well made the following net profits:

August 1953-August 1954 $ 48.04
August 1954-August 1955 88.15
August 1955-August 1956 183.24

The only expenses charged against Skelly’s ji^ths production were ad valorem taxes, gross production taxes, and district expenses. This last item was an allocation on a per well basis of the district administrative and supervisory expenses for supervising all of the wells in this district. As said above, Skelly’s witness admitted that other expenses would be incurred for this particular well, and that such expenses had not been considered in determining whether or not this well had made a net profit for the company.

“These conflicting theories and methods of calculation were before the jury. The question of whether or not an oil well is producing in paving quantities is a question of fact for the jury. Woodson Oil Company v. Pruett, Tex.Civ.App., 281 S.W.2d 159; Bain v. Strance, Tex.Civ.App., 256 S.W.2d 208; Clark v. Holchak, 152 Tex. 26, 254 S.W.2d 101; Garcia v. King, 139 Tex. 578, 164 S.W.2d 509.” Sullivan and Garnett v. James, Tex. Civ.App., 1957, 308 S.W.2d 891, at 893, n. r. e.

In view of the evidence in this case and the reasonable inferences a jury is permitted to draw, we cannot say there was no evidence to support the jury’s finding that the well on Section 292 failed to produce gas in paying quantities during the period inquired about.

The judgments of the trial court and the Court of Civil Appeals are affirmed.

SMITH and HAMILTON, JJ., dissenting.

On Motion for Rehearing

PER CURIAM.

On further consideration we have concluded that there is in the record no evidence of probative force to support the finding of the jury that the well on Section 292 is not producing in paying quantities.

The jury was instructed that in answering the issue it should determine whether Skelly was making a profit, though small, after deducting certain expenses, including cost of repairs and depreciation on salvable equipment. Gross income from the well over the three year period has been small indeed. There is evidence in the record of some repairs on well equipment. No doubt there is some salvable equipment which is depreciating. But there is in the record no evidence of the cost of the repairs; nor is there evidence of what equipment is salvable, the cost thereof, ,or a proper rate of depreciation In short, there was no evidence introduced upon which the jury’s answer to the issue can rest; it is founded upon speculation and surmise. At best the evidence is nothing more than a mere scintilla, and that is not enough to support the jury’s answer to the issue or the judgment terminating the lease on Section 292. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The error affects only the part of the judgment terminating the lease on Section 292. There is no reason why that part of the judgment may not be severed and reversed and the remainder of the judgments of the courts below be affirmed. Rule 503, Texas Rules of Civil Procedure.

Having concluded to reverse the judgments in so far as they terminate the lease on Section 292, we come next to the question of whether judgment should be here rendered for Skelly because of the failure of the Archers to discharge their burden of proving that the well was not producing in paying quantities or whether in the interest of justice this phase of the case should be remanded to the trial court for retrial. Rule 505, Texas Rules of Civil Procedure. Considering the record before us as a whole, we have concluded that justice will be best served by a remand for retrial. Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376; London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619.

This case was tried before our decision in Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774. On retrial the burden will be on the Archers to prove that Skelly was not making a profit from operation of the well. If they fail to produce evidence which establishes that fact as a matter of law or fail to obtain a fact finding, supported by evidence, to that effect, the lease should not be terminated. If, on the other hand, the evidence establishes as a matter of law that Skelly was not making a profit from the well or if there is a fact finding, supported by evidence, to that effect, the lease should yet not be terminated unless the evidence establishes as a matter of law or the Archers obtain a fact finding, supported by evidence, that a reasonably prudent operator would not have continued to operate the well under the circumstances. In a jury trial this latter issue can be submitted conditionally.

The motion for rehearing is granted. The judgments of the trial court and Court of Civil Appeals cancelling the lease on Section 292 are reversed, that issue is severed and as to it the cause is remanded to the trial court for retrial. The judgment of the Court of Civil Appeals is otherwise affirmed.

HAMILTON, Justice

(dissenting).

The dissenting opinion delivered on November 29, 1961, is withdrawn, and the following is substituted therefor:

I respectfully dissent from the Court’s opinion.

It appears to the writer that the contract is unambiguous and should be construed by this Court. The rider, which deals with the subject of payment of rentals in case of discovery of gas, is in conflict with the rental-paying provision of the main body of the lease, and no ambiguity arises when the rider is construed in connection with such provision. The question of ambiguity arises only when an attempt is made to lift a part of the first sentence in the rider, that is, “one well will hold only 640 acres” out of context and apply it to the habendum clause, the subject matter of which is wholly foreign to the subj ect matter of the rider.

It appears that where two possible constructions could be placed upon a contract, one of which would cause a conflict between two provisions and another would harmonize the two provisions, that the latter would be the reasonable construction and the other would not be reasonable. This rule of construction is supported by a decision of this Court in Universal C. I. T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154, cited by the majority opinion in support of its holding that the contract is ambiguous. The Court in that case, after stating that the primary concern of courts is to ascertain and give effect to the true intention of the parties, said:

“To achieve this object the courts will examine and consider the entire writing, seeking as best they can to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless.”

It is clear from a reading of the rider that its subject matter is the payment of rentals, in case of gas production. No other subject is dealt with. The first three sentences therein deal with the matter of payment of rentals. The first two sentences simply modify the rental provision in the lease, so as to provide that in case of gas production, rentals are payable on all the acreage except the 640 acres per well, and even the 640 acres on which a gas well is drilled is not entirely exempt. If the royalty does not amount to as much as the annual rental on 640 acres, the difference is to be made up so that the revenue therefrom is not to be less than the rentals would have been for that acreage.

The third sentence simply says what is meant by the rider. That is, that payments under the lease, regardless of gas production, shall never be less than the rentals provided for in the lease ($3,040.00) during any twelve months’ period. The lessor, for whose benefit this rider was placed on the lease, put her own interpretation on the rider by adding the third sentence to the first two sentences. It adds nothing to the contract except to make certain that the lease is not divisible. The Court of Civil Appeals says it was added for emphasis. I think we should give effect to that emphasis.

The fourth sentence makes the rider provision controlling over conflicting provisions contained in the main body of the lease. Full effect is given to this sentence when the rider is construed as modifying the rental payment provision in the lease. No one contends that the rider is ambiguous as applied to the rental payment provision, and everyone admits that the rider and rental payment provisions are in conflict.

It should be held that since the rider refers only to the payment of rentals, it necessarily follows that it applies only to the primary term. Its purpose was to assure to the lessor during the primary term a continuance of the rental payments without any reduction in the total revenue received after production of gas was obtained. This construction is in accord with that given similar provisions by the courts of Texas and by the Fifth Circuit Court. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Lido Oil Company v. W. T. Waggoner Estate, Tex.Civ.App., 31 S.W. 2d 154, error refused; Johnson v. Montgomery, Tex.Civ.App., 31 S.W.2d 160, writ refused; Glasscock v. Sinclair Prairie Oil Company, 185 F.2d 910, 5th Cr.Ct.

The Waggoner Estate v. Sigler Oil Company case involved a lease which provided that one well would hold 2000 acres in a square around the well, and rentals were to be paid on the balance of the acreage. Suit was to cancel the lease on all acreage outside that held by each well. Only 3000 acres were involved, the rest of the 87,000 acres having been assigned to the Waggoner Estate. The suit was primarily for cancellation on account of non-development. However, the primary term had expired. The court held that the lease was valid as to the acreage outside of the 2000 acres agreed to be held by one well. It did not discuss the matter which we have before us, but in the Lido v. Wag-goner Estate case, which was the second appeal of the same case, the court, at page 159, 31 S.W.2d, specifically construed the former opinion by the Supreme Court as, holding that the proviso that one well would hold 2000 acres applied to the rental payment period only.

The Glasscock v. Sinclair Prairie Oil Company case, instead of saying that one well would hold only 640 acres, says that “production from any well thereon shall continue this lease in force only in so far as this lease covers a tract for each such well * * * containing' not more than 640 acres”, rentals to be paid on balance of the acreage. (Emphasis ours.) Each of these cases had a similar habendum clause and a similar rental payment provision to that contained in the Archer lease, and in each of the cases it was held there was no ambiguity and that the provision applied only to the rental payment provision and did not apply after the primary term.

Under the above authorities and the accepted rules of construction, I would hold the lease to be valid and binding as to the entire acreage covered thereby, since it is undisputed that there is paying production on Section 285.

SMITH, J., joins in this dissent.

HAMILTON, Justice'

(concurring on motion for rehearing).

While adhering to my dissent filed herein, I concur in the per curiam opinion of this court delivered February 21, 1962, holding that there was no evidence of probative force in the record to support the finding of the jury that the well on Section 292 is not producing in paying quantities. However, I would render judgment holding the lease valid as to Section 292 rather than remand the case for new trial as to this section only.

Since this case is being remanded as to Section 292 in the interest of justice, this court, in order to be consistent, should also remand the case as to Sections 4, 282, and the south half of the northwest quarter of Section 284 in the interest of justice. On the trial of the case the Archers went into the matter of the cost of repairs and depreciation, but failed to make proof of any such expenses of operation. They had as much opportunity to make such proof as they will ever have on another trial.

This court in its original opinion upheld the judgment of the trial court canceling the lease as to Sections 4, 282, and the south half of the northwest quarter of Section 284 on the theory that the lease was ambiguous and that the trial court made an implied finding that the parties intended that a producing gas well would hold only one section after the end of the primary term. This court held that no attack was made on such finding of the trial court, and on this ground rendered judgment canceling the lease as to said sections.

It is evident why Skelly made no attack on such finding of the trial court. The parties did not try this case on the theory on which this court decided the case. The Court of Civil Appeals did not decide the case on this theory. Neither of the parties briefed the case on this theory in the Court of Civil Appeals or in this court. It appears that this is one of the situations in which it was intended that Rule 505, Texas Rules of Civil Procedure, should be applicable. I would not sever the issue as to Section 292, but would remand the entire cause as to the four sections here involved to the trial court for retrial.


source: Caselaw Access Project

author: MORRISON, Judge. ' McDonald, judge.

license: Public Domain

text:
    Joe D. SNEED, Appellant, v. The STATE of Texas, Appellee.
    No. 34183.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Rehearing Denied April 18, 1962.

      Doss Hardin, Fort Worth, Ross Hardin, Dallas,' Davis & Griggs, Fort Worth, for appellant.
    Henry Wade, Criminal Dist. Atty., William F. Alexander, Ben F. Ellis, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge. '

The offense is rape; the punishment, death.

Roy Eugene Lee testified that about 1:30 A.M. on the night in question he and a companion were on their way to work and discovered a car in the ditch beside the road with the headlights on, the radio playing, the driver’s door locked, and the window on the driver’s side “bashed in”; that on the shoulder of the road there was a woman’s white shoe; that about ten feet further up the road there was another shoe and beyond this a woman’s bag; that he called the police, who reported to the scene and determined that the car belonged to a Mr. Moosberg.

Mrs. Moosberg, the prosecutrix, testified that on the night of June 15, 1960, she had been visiting friends and was returning home alone in her automobile about 1:00 A.M.; that appellant drove his automobile up beside her, forcing her off the road; that she tried to back away but lost control and her automobile ended up crossways of the road; that she had the doors of her automobile locked and the windows up; that appellant approached the driver’s side and smashed his fist through the window; that she fled through the right hand door of the automobile and ran up the road, losing her shoes and purse; that she looked back and saw appellant pushing her car by hand from the roadway into a ten-foot deep ditch; that appellant got into his own automobile, overtook her, and forced her into his car; that he made her wipe blood from cuts on his right arm and hand; that he demanded money and she told him she had lost her purse; that he took her to a deserted area and forced her down in the seat, tore her dress and forced her to submit to an act of intercourse; that after consummating the act of intercourse appellant took her to a service station, gave her two dimes to make a telephone call and left her; that she called her husband and told him where she was; that as she finished the call to her husband a police car pulled into the station driveway and she reported to the police what had happened to her; that she went with the police and retraced the route over which she had been driven by appellant and showed them the place where she had been raped; and that the police took her to Parkland Hospital for a vaginal examination.

She further testified that on July 16, 1960, one month later, she saw appellant at a drive-in restaurant, recognized him, and asked her husband to drive closer to appellant’s car, which was a different car than he had been driving on the night of the rape, and took down the license number; that her husband called the police, who arrested appellant; and that after viewing the freshly healed scars on his right hand and arm, which she had described to the police earlier as the ones she was forced to clean on the night of the rape, she reaffirmed her identification of appellant.

Dr. Wharton, a duly licensed and qualified physician, testified that he examined Mrs. Moosberg in the early morning hours of June 16, 1960, and found “an abundant quantity of sperm in her vagina” and a bruise on the top right side of her hipbone.

Dallas police officers testified that they removed prosecutrix’s automobile from the ditch and examined and photographed it; that they preserved blood drippings found on the shattered window, which were determined to be the same type as that of appellant; and that they removed a good identifiable fingerprint from the unshattered portion of the driver’s window which was later identified, after comparison, as that of appellant.

The State offered into evidence without objection, appellant’s confession to the offense.

Appellant did not testify or offer any testimony in his behalf, and we find the evidence sufficient to support the conviction. We will now discuss the contentions advanced by counsel in brief and argument.

He contends that the court erred in permitting the State to ask leading questions. With this contention, we cannot agree. Appellant’s confession, which was placed in evidence without objection, admitted all the material facts of the offense and made out as strong a case against him as the testimony of the witnesses to whom the alleged leading questions were propounded. Recently, in Bell v. State, 166 Tex.Cr.R. 340, 313 S.W.2d 606, we quoted from Hill v. State, 144 Tex.Cr.R. 57, 161 S.W.2d 80, as follows:

“Asking harmless leading questions is not commended; yet, we note that the courts seldom reverse a case because questions are leading.”

We have carefully examined the questions complained about and find that the court sustained most of appellant’s objections and instructed the State to rephrase them, and we do not find an abuse of discretion in his rulings on the other questions.

Appellant also contends that the court erred in not granting his motion for a mistrial when the court allowed the State to introduce into evidence certain blood stained seat covers and then ordered them withdrawn from evidence when the State failed to connect them with the offense. He presents this matter by an informal bill of exception and contends that the jury had already seen the seat covers and the court’s instruction to disregard them could not cure the error.

When the court’s attention was called to the fact that the State had not completed the proof as to the chain of custody, the court instructed the jury to disregard the exhibits and stated that the jury had not seen them because they were in a sack. While it is true that the exhibits had been identified by another witness, in the absence of anything in the record to the contrary, we must be bound by the court’s qualification of the informal bill when he stated that they had not been exhibited to the jury as they were still in the sack. Be that as it may, we observe that the blood which was found on the seat covers was not that of prosecutrix but came from appellant’s arm. State’s Exhibit 16, which was admitted without any objection to the effect that it was inflammatory, is a picture of the front seat of the automobile in question with the plastic seat covers in place.

Finding no reversible error, the judgment •of the trial court is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

It is strenuously urged that this Court •erred in its original opinion when it was stated that the trial court instructed the jury to disregard the seat cover exhibits. Appellant contends that such an instruction does not appear in the record.

A careful reexamination of the statement •of facts reveals that such an instruction was given in response to a request by appellant’s •counsel.

Remaining convinced that proper disposition was made of this cause on original submission, appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner.

text:
    Roberta GRABER, Appellant, v. The STATE of Texas, Appellee.
    No. 34348.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carol S. Vance, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the misdemeanor offense of unlawful assembly under Arts. 439 and 449, Vernon’s Ann.P.C.; the punishment, a fine of $100.

This is a companion case to Shelton et al. v. State, Tex.Cr.App., 356 S.W.2d 801. The appellant and five others were jointly charged with the offense as therein shown. Severances were granted to the appellant and Robert Lynn Simpson and only the appellant is on trial in this case.

The evidence of the state is substantially the same as that introduced in the Shelton case, except that it shows more fully the acts and conduct of the appellant at the time and place in question.

The appellant, a female of the white race, testified in her own behalf and called several witnesses whose testimony supported her version of the facts. While testifying, she admitted going to Burleson’s restaurant in the union station, but states that she did not arrive until about 6:45 P.M. She further stated that she stood with others near the entrance of the restaurant, but that she did not go there for the purpose of preventing persons' from entering the restaurant.

The jury resolved the issues of fact against the appellant and, the evidence being sufficient to support the conviction, the judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge. McDONALD, Judge MORRISON, Judge.

text:
    Ex parte Carol Jean JOSEPH.
    No. 34330.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Foreman & Walsh, by William F. Walsh, Houston, for relator.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Jno N. Hughes, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for respondent.
   WOODLEY, Presiding Judge.

This is an original habeas corpus proceeding attacking the validity of the order of District Judge Arnold H. Krichamer holding the relator in contempt of court for refusing to testify, and ordering the relator to be confined in jail until she purged herself by agreeing to testify.

One Michael Said Coury was on trial before Judge Krichamer, in Criminal District Court No. 4 of Harris County, for the offense of pandering. The indictment, drawn under Art. 519 P.C. as amended in 1959 (Art. 519, Vernon’s Ann.P.C.), alleged that on or about the 5th day of July, 1961, in Harris County, Texas, Coury “did then and there unlawfully, by means of duress, force, and by whipping and beating her about the head and body and by threatening to take her life, procure and force one Carol Jean Joseph, a female, without her consent, to remain a prostitute.”

The relator herein, the female person named in said indictment, was called as a witness for the state and, being sworn, testified that she met the defendant Coury around March; had known him some eight or nine months; that she first met him at Yale Motors in Houston; saw him next three nights later at the Turf Club; next saw him a week later when she had a date and went out with him, and that up until that time she had never engaged in or been a prostitute.

She further testified that she dated Coury a few times after that but did not “discuss any sort of occupation for you.”

The witness, relator herein, upon advice by her attorney, refused to answer the questions : “How long did you go with Michael Coury before you became a prostitute?” and “When was it you first became and engaged in being a prostitute?” and “When was it you first became a prostitute ?” She persisted in her refusal to testify in answer to such questions after the attorney representing the state had offered her immunity and after she was informed by Judge Krich-amer that she “would be granted complete immunity in any answers to questions you give except as to perjury. You will be given immunity to any answer to further questions, you will be granted immunity from prosecution.”

The grounds stated by the witness, relator herein, for refusing to testify were that her testimony “might tend to incriminate her” ; “might bring a moral stigma and moral degradation” upon her; “I might incriminate myself.”

Art. 521, P.C., provides in part that the female shall be a competent witness to testify for or against the accused as to any act or words with him or by him with another in her presence, and that “no testimony or statement given by such female during the trial for any such offense above named shall be used against her in any criminal prosecution.”

Relator stated that her answer would incriminate her as to offenses for which she was liable and for which prosecution might be brought in the county court, in justice courts and in corporation courts in Travis, Jefferson and Galveston Counties.

Relator’s first contention is that the immunity offered did not constitute a complete substitute for the privilege against self incrimination provided by Art. 1, Sec. 10 of the Constitution of Texas, Vernon’s Ann.St., because there was no agreement as to immunity which would authorize the trial judge to compel her testimony.

We overrule such contention. Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29; Ex parte Copeland, 91 Tex.Cr.R. 549, 240 S.W. 314; Hughes v. State, 62 Tex.Cr.R. 288, 289, 136 S.W. 1068; Hinesman v. State, 34 Tex.Cr.R. 76, 29 S.W. 482.

In Ex parte Copeland this Court said:

“It has long been the practice to extend immunity through the action of .the district attorney with the sanction of the trial judge. Immunity so extended has uniformly been held binding upon the state. Young v. State, 45 Tex.Cr.R. 202, 75 S.W. 23; Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682, 40 Am.St.Rep. 763; Barrara v. State, 42 Tex. 260; Bowden v. State, 1 Tex. [Cr.] App. [137,] 143; Fleming v. State, 28 Tex.App. 234, 12 S.W. 605.
“The point is here raised that, while the state may be bound by appropriate action of the district attorney and the trial court, it is not competent for the court to compel one to give the testimony under such a guaranty, but that, notwithstanding the immunity thus tendered, he would have the right to maintain his silence. This view was rejected by this court in Hughes v. State, 62 Tex.Cr.R. [288,] 289, 136 S.W. 1068; Ex parte Napoleon, 65 Tex.Cr.R. 307, 144 S.W. 269; Ex parte Higgins, 71 Tex.Cr.R. 618, 160 S.W. 696; Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29. In these cases, it was held that by virtue of the statutes of this state, it was within the power of the district ■court to compel one to testify, although his testimony tends to show that he had transgressed the criminal laws of the state, where he was guaranteed immunity by the promise of the district attorney with the sanction of the trial judge duly entered of record.”

Relator next contends that no statute has "been enacted which would authorize the ■court to compel her to testify without her agreement. \

In Hughes v. State, supra, the statute, ■now Art. 653, Vernon’s Ann.C.C.P., was ■construed as providing a means whereby .any person can be compelled to testify. Referring to a witness in the assault with intent to murder case, this Court said:

“If the state will file in the court an unconditional agreement not to prosecute Lucian Hughes for making this assault, and the trial judge approves such an agreement, then Lucian Hughes can be compelled to testify in this character of case.”

'See also Ex parte Copeland, supra.

Arts. 653 and 577, V.A.C.C.P., together with other provisions of the Code relating to the dismissal of a prosecution by the court upon motion of the attorney for the state, furnish all of the statutory authority necessary to empower the district attorney and the court to grant immunity •to the witness and require her to testify.

The remaining contention presents the •question of whether the witness could refuse to testify because she would be unprotected as to other distinct offenses concerning which she was sure to be cross-examined.

Appellant correctly points out that the authority or power to grant immunity to a witness does not extend to distinct offenses. It does, however, extend to the particular case then on trial and any connected offense which the witness, in good faith, discloses as a part thereof, though in truth the connected offense constitutes a separate crime. Ex parte Park, 37 Tex.Cr.R. 590, 40 S.W. 300; Hinesman v. State, 34 Tex.Cr.R. 76, 29 S.W. 482.

The question then resolves itself into whether the witness protected by the provisions of Art. 521 P.C. and the grant of immunity could decline to answer the questions propounded to her and to testify regarding the offense against her because she was sure she would be interrogated on cross-examination and incriminate herself as to distinct offenses. We conclude that she could not.

It is not difficult to see how the relator’s testimony regarding the offense for which the defendant was on trial could incriminate her. If, as the indictment suggests, she was a common prostitute, her status as such is said to be a crime of personal condition which would authorize her conviction under the vagrancy statute in any county where she might be.

We find it extremely difficult, however, to picture a situation where the relator could be required to testify on cross-examination and incriminate herself as to a separate crime totally disconnected and not disclosed as a part of the offense of causing her to remain a prostitute by whipping and beating her and threatening to take her life, on or about July 15, 1961. If such condition did exist, and the cross-examination was proper, she could then claim her privilege.

The following quotation from Wharton Criminal Evidence, taken from Ex parte Park, 37 Tex.Cr.R. 590, 40 S.W. 300, is deemed pertinent on appellant’s last contention.

“To protect the witness from answering, it must appear from the nature of the evidence which the witness is called to give that there is reasonable ground to apprehend that, should he answer, he would be exposed to a criminal prosecution. The witness, as will be seen, is not the exclusive judge as to whether he is entitled on this ground to refuse to answer. The question is for the discretion of the judge, and, in exercising this discretion, he must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence. But, in any view, the danger to be apprehended must be real, with reference to the probable operation of law in the ordinary course of things, and not merely speculative, having reference to some remote and unlikely contingency.”

Relator’s confinement under the contempt order being lawful, the relief prayed for is denied and she is remanded to custody.

McDONALD, Judge

(concurring).

I concur in the disposition of this case by virtue of the holding of this Court in the opinion by Judge Lattimore in Ex parte Copeland, 91 Tex.Cr.R. 549, 240 S.W. 314, cited in the majority opinion.

DISSENTING OPINION

MORRISON, Judge.

The majority concede that Article 521, supra, does not grant such immunity as would operate as a substitute for the privilege against self-incrimination guaranteed by Section 10 of Article I of our Constitution. The applicable portion of the act reads as follows:

“No testimony or statement given by such female during the trial for any such offense above named shall be used against her in any criminal prosecution.”

As will be seen from 12 T.L.R. 17, 41, most of the immunity statutes of this State have been construed except the one set forth above.

A similar statute was before the Supreme Court of this State in Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217. It provided “ * * * any evidence given, in the (juvenile) court shall not be admissible as evidence against the child in any case or proceeding in any other court * * *.” Judge Sharp, in writing for the Court, said:

“The argument is made on behalf of the State that the Act provides express immunity to those who testify. We find no such immunity in the Act. It merely provides that evidence given in the juvenile court shall be inadmissible in another proceeding. Under the settled law> that is not sufficient. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29; Ex parte Copeland, 91 Tex.Cr.R. 549, 240 S.W. 314.”

All that Article 521, supra, does is to. prohibit the re-use of testimony in a subsequent proceeding. It does not compel the-witness to testify, as do other immunity statutes. It does not prohibit the use of information gained by means of interrogating the witness, as does the statute which was approved by this Court in Ferrantello v. State, 158 Tex.Cr.R. 471, 256 S.W.2d 587.

Without a statute, there can be no grant’ of immunity. Judge Cardozo, speaking for the New York Court of Appeals in Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489, 87 A.L.R. 418, said:

“There is no record in the books of even a single instance, or none in any event has been brought to our attention, in which a witness, claiming privilege, has been compelled to reveal a crime upon the basis of an inherent power in the inquirer to relieve him from its consequences.”

This statement by such a profound scholar would clearly outweigh the admitted dictai which may be found in Ex parte Copeland, supra, and the dicta in Hughes v. State, 62 Tex.Cr.R. 288, 136 S.W. 1068, by Judge Harper. In fact, in Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29, this Court stated that the courts had no inherent power to grant immunity. Consistent with this view are the holdings of various Supreme Courts of other states as follows: State ex rel. Benemovsky v. Sullivan, Fla., 37 So. 2d 907; People v. Conzo, 301 Ill.App. 524, 23 N.E.2d 210; People v. Rockola, 346 Ill. 27, 171 N.E. 559; Temple v. Commonwealth, 75 Va. 892; Ex parte Werner, 46 R.I. 1, 124 A. 195; Apodaca v. Viramontes, 53 N.M. 514, 212 P.2d 425, 13 A.L.R.2d 1427; and Karel v. Conlon, 155 Wis. 221, 144 N.W. 266. See also Isaacs v. United States, 8 Cir., 256 F.2d 654, 661; Hooley v. United States, 209 F.2d 234; Foot v. Buchanan, 5 Cir., 113 F. 156; 3 Jones on Evidence 1652, sec. 888; 98 C.J.S. Witnesses § 439, p. 263; 8 Wigmore on Evidence (3rd Ed.) 529, sec. 2284; 4 Nichols Applied Evidence 3708, secs. 61, 62.

The majority find in Article 653, V.A.C. 'C.P., the necessary statutory grant of immunity. It reads as follows:

“The State’s attorney may, at any time, under the rules provided in this Code, dismiss a prosecution as to one or more defendants jointly indicted with others; and the person so discharged may be used as a witness by either party.”

This statute was passed merely for the purpose of making one or more of the accused persons competent witnesses. When so rendered competent, the witness is like any other witness, and his right to refuse to incriminate himself is the same as that of any other witness and there is nothing in Article 653 which deprives him of such right.

Thus, even in cases where Article 653 is applicable, I fail to find anything in it authorizing the prosecutor and the court to thrust upon a witness, against his will, a grant of immunity. Saucier v. State, 156 Tex.Cr.R. 301, 235 S.W.2d 903, and Bills v. State, 166 Tex.Cr.R. 28, 305 S.W.2d 614.

Since I fail to find any statutory provision which would give the witness immunity against self-incrimination, T must necessarily conclude that she was within her constitutional rights in refusing to testify.

I am not unmindful of relator’s profession, the nature of the offense on trial, and the stigma attached to both, but I feel that we should construe the law as we see it with the Constitution as a guide. The Legislature may easily correct this deficiency in the law at their convenience, but it is not for this Court to do so. As Chief Justice Cardozo said in Doyle v. Hofstader, supra:

“A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price for relieving itself of the bother of awaiting a session of the Legislature and the enactment of a statute in accordance with established forms.”

I respectfully enter my dissent and would order the relator discharged.


author: DICE, Commissioner. WOODLEY, Presiding Judge.

text:
    N. B. GENTRY, Appellant, v. The STATE of Texas, Appellee.
    No. 34315.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Rehearing Denied April 18, 1902.

      Richard W. Davis, Glenn W. Lewis, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, 10 years in the penitentiary.

The State’s testimony shows that on the day in question, as the witness, George Win-, ham, was crossing the Oakes Street bridge over the Concho River in the city of San Angelo around 6:30 P.M. in his automobile, he saw two men standing on the bridge near the railing facing each other. The men appeared to be tussling and, as the witness passed, he observed one pushing the other and saw one of the men go over the side of the bridge. The man remaining on the bridge, who was wearing a two tone coat and a felt snap-brim hat, then looked over the bridge railing and proceeded to walk fast from the bridge. The witness then drove to his home and reported the incident to the police.

The proof shows that in response to the call, the police went to the scene where the dead body of the deceased was recovered from the water near the bridge. The deceased, on such date, lacked only a few days of being seventy years of age. An autopsy performed upon the deceased by Dr. Raleigh Trotter, a pathologist, disclosed various bruises on the forehead, the right side of the chest and at the base of the neck, several broken ribs and a rupture of the blood vessel to the left of the breast bone where the collar bone connects and a considerable amount of hemorrhage extending downward into a space between the lungs and heart. The cause of death of the deceased was expressed by Dr. Trotter as severe trauma from the injuries, superimposed upon ill health which the deceased was suffering.

It was shown by the testimony that on the evening in question the appellant and the deceased had been together drinking beer in two cafes. Both were under the influence of intoxicating liquor. Around 6 P.M. they left the Coney Island Cafe together which was two blocks from the Oakes Street bridge. Forty minutes later appellant returned to the cafe and said to the witness Scott “You think I ain’t going to drown them all this morning, every son-of-a-bitch before morning, you just read the pap'ers” and at the time stated he was going to chloroform Scott.

Around 10 P.M. the officers went to appellant’s residence on North Oakes Street. At such time appellant was at home and accompanied the officers to the police station. When leaving the house appellant picked up a hat and coat and brought them to the police station. The hat and coat were introduced in evidence as exhibits by the State. Appellant, when wearing the hat and coat, was identified by the State’s Witness Winham later that night at a police lineup and at the trial as looking like the man whom he saw on the bridge on the night in question.

Appellant did not testify but called Chief of Police Melvin James who testified that he observed appellant’s hands on the night of his arrest and that they appeared to be normal.

The court submitted to the jury in his charge the issues of appellant’s guilt of murder with malice and of aggravated assault. The issues of accident and cause •of death were also submitted and the jury was instructed on the law relative to circumstantial evidence.

The jury by their verdict resolved the issues against appellant and we find the evidence sufficient to sustain their verdict.

Appellant predicates his appeal upon two main contentions.

He first contends that the court erred in admitting, over his timely objection, the testimony which showed that when appellant returned to the cafe on the evening in question he stated that he was going to drown “every son-of-a-bitch before morning” and that he was going to chloroform the witness Scott. Appellant insists that the admission of such testimony was in violation of the rule that evidence of antecedent threats made by an accused is not admissible unless the threats were directed against the deceased or a class of persons which included him.

It is the State’s contention that the testimony was admissible to show the condition of appellant’s mind at the time of the killing and to show guilty knowledge on the part of appellant that he had just thrown someone in the river.

While the rule relied upon by appellant with reference to the admissibility of evidence of antecedent threats made by an accused is correct, such rule has no application in the present case to the statements made by appellant after the killing.

Art. 1257a, Vernon’s Ann.P.C., provides in part as follows:

“In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”

In 4 Branch’s Ann.P.C., par. 2240, page 599, it is stated:

“The relevant declarations or statements of the defendant made before or after the homicide or difficulty in question, which are a part of the res gestae, or which show or tend to show motive, intention, state of mind, malice, premeditation, animus, or ill will toward the deceased, or which explain his purpose or refute his explanation, are admissible against him.” Authorities cited.

In Flores v. State, 151 Tex.Cr.R. 478, 209 S.W.2d 168, it was held that evidence of the acts and conduct of the accused after the killing was admissible to show malice, intent and condition of his mind at the time of the killing.

In the instant case appellant’s statements were made at the cafe some forty minutes after the killing and were admissible as bearing upon the condition of his mind at the time of the killing. His statements at the cafe clearly showed a heart regardless of social duty and fatally bent on mischief and were admissible upon the issue of malice.

The evidence of appellant’s statement at the cafe relative to his “going to drown” people was also admissible on the question of his identity to prove that it was he who had killed the deceased and pushed him over the railing of the bridge into the water. McGee v. State, 31 Tex.Cr.R. 71, 19 S.W. 764; LaGrone v. State, 61 Tex.Cr.R. 170, 135 S.W. 121 and Smith v. State, 135 Tex.Cr.R. 327, 119 S.W.2d 1039.

In admitting such testimony the court did not err.

Appellant next insists that the court erred in overruling his motion to quash the indictment.

Appellant alleged in the motion that the indictment was insufficient because it did not describe with sufficient certainty the instrument used in committing the offense or allege that the nature of the instrument was to the Grand Jury unknown and that the indictment was ambiguous, uncertain, and confusing.

The indictment charged that appellant killed the deceased by “striking him with some instrument and in a manner and means to the Grand Jury unknown.”

While the instrument was not described, the indictment charged in substance that appellant killed the deceased in some manner and by some means, instrument or weapon to the Grand Jury unknown. Such an allegation is sufficient. 29 Tex.Jur. 2nd, par. 128, page 150; Walker v. State, 94 Tex.Cr.R. 414, 251 S.W. 235; Bookman v. State, 112 Tex.Cr.R. 233, 16 S.W.2d 123 and Stanley v. State, 120 Tex.Cr.R. 450, 48 S.W.2d 279.

Proof was offered by the State that the Grand Jury which returned the indictment against appellant was unable to' determine the instrument .used in the killing or the manner and means the instrument was used in striking and killing the deceased.

In overruling the motion to quash the indictment the court did not err.

The bills of exception appearing in the record have been examined and do not present reversible error.

We commend appellant’s court appointed counsel upon the discharge of their duties-in both the trial court and on the appeal before this Court in such a capable and scholarly manner.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANTS MOTION FOR-REHEARING

WOODLEY, Presiding Judge.

Appellant complains of our disposition: of his contention that the trial court erred in overruling his motion to quash the indictment. He urges that there is quite a difference between the allegation that the deceased was killed by “striking him with some instrument and in a manner and means to the grand jury unknown” and the-approved form of indictment alleging that the defendant killed the deceased in some-manner and by some means, instrument or weapon to the grand jury unknown.

We have again examined the indictment,, and the motion to quash, in the light of appellant’s motion for rehearing.

The first ground of the motion to quash reads: “The indictment is duplicitous in. that same charges N. B. Gentry ‘did then and there unlawfully and willfully and voluntarily with malice aforethought kill H. A. Daniel by striking him with some instrument’ and in the same count charged the defendant ‘did then and there unlawfully and wilZfully and voluntarily with malice aforethought kill H. A. Daniel in a manner and means to the Grand Jury unknown.’ ”

This appears to be a proper construction of the indictment, but we do not agree that the motion to quash should have been sustained.

An indictment for murder may, in a single count, allege jointly different means of killing without rendering the indictment duplicitous. Corona v. State, 108 Tex.Cr.R. 317, 300 S.W. 79; Whiteside v. State, 111 Tex.Cr.R. 116, 12 S.W.2d 218; Stanley v. State, 120 Tex.Cr.R. 450, 48 S.W.2d 279; 29 Tex.Jur.2d, Homicide, Sec. 128, at p. 152.

We remain convinced that this appeal-was properly disposed of on original submission.

Appellant’s motion for rehearing is overruled.


author: McDonald, judge.

text:
    Francisco Garcia MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34504.
    Court of Criminal Appeals of Texas.
    April 11, 1962.
    William E. Davenport, Snodgrass, Smith, Rose & Finley, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is fondling the sexual parts of a male under 14 years of age; the punishment, confinement in the penitentiary for 6 years.

J. W. Nowlin, a male 12 years of age, testified that on the night of July 23, 1961, he attended a show at the Roxy Theater in the City of San Angelo; that about 10 or 11 P.M., he left the theater, started home and first observed appellant near a Post Office; that appellant offered to take him home, but instead, took him out to a pasture near the Holiman School, stopped the automobile and proceeded to disrobe; that appellant made him remove his clothing and started “messing” with his private parts. The boy further testified, “ * * * he (appellant) put his mouth on my private part * * * ” and had him put his private part in appellant’s rectum.

Thomas Flowers, a patrolman for the City of San Angelo, testified that on the night in question, around 10:30 or 11 P.M., while on patrol duty near the Holiman School, he noticed an automobile parked near the school and put his spotlight upon it; that the automobile started up and moved out; that after a short chase he overtook the automobile and found appellant driving and observed that his “breeches” were down around his knees. The patrolman further stated that J. W. Nowlin was an occupant of the automobile and aft-ter hearing Nowlin’s story, he took appellant into custody.

Detective Gary Simpson, of the San Angelo Police Department, testified that on July 24, 1961, appellant made and signed a written statement, after proper warning, which was introduced in evidence by the State, wherein he admitted the alleged sexual acts.

Appellant, testifying as a witness in his own behalf, admitted his relationship with the youth and stated that this was his first act of sexual deviation. He further stated that prior to this occurrence, he had consumed 10 or 12 bottles of beer, which was double the amount of which he normally partook and that he had never been convicted of a felony in this State or any other State.

Eugene Martinez, father-in-law of appellant, testified that his son-in-law’s reputation as a peaceable and law-abiding citizen was good.

Dr. Everrett L. Sutter, a Doctor of Philosophy and Psychology, testified that he had treated some 57 cases of sex deviation and had success in 55. He further stated that he could not advance an opinion as to appellant’s condition or chances of recovery as he had not examined him.

There are no objections to the court’s charge. Appellant predicates this appeal upon two formal bills of exception and several informal bills of exception.

Appellant’s formal bill of exception No. 1 relates to the overruling of his motion for continuance, based upon the allegation that the expert testimony of Dr. Sutter was necessary for the proper defense of appellant. A statement of facts, setting forth the testimony heard at the hearing, accompanies the record before us. It is shown by such, that appellant had made an appointment with Dr. Sutter after his arrest and before the day of trial, but that he failed to keep said appointment. During this time appellant was released on bail. The doctor testified that had appellant kept his appointment, then he would have had time to evaluate, examine and come forward with a conclusion as to appellant’s present condition. The bill of exception does not show an abuse of discretion on the part of the trial court in overruling the motion for continuance.

By formal bill of exception No. 2 appellant complains of the overruling of his amended motion for new trial based upon jury misconduct.

The conduct complained of is that during their deliberations, the jury received new evidence in the form of a discussion about a film on sex deviation which was recently shown by the local PTA and the remark of one juror that he knew a prominent citizen of the community who was generally known as a sex deviate, but that such could not be proved.

An affidavit by one of the members of the jury accompanies the motion, but said affidavit fails to mention the discussion pertaining to the film. It is not error to overrule a motion for new trial where jury misconduct is alleged when the motion is not supported by affidavit. Roberson v. State, 160 Tex.Cr.R. 381, 271 S.W.2d 663 and Clifton v. State, Tex.Cr.App., 339 S.W.2d 902. An essential element of this rule of law is that each separate allegation in the motion must be supported by affidavit.

As to the mention of the prominent person, this is not such new evidence that can be consrued as detrimental to appellant. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

In the absence of a showing of an abuse of discretion by the trial court in overruling a motion for new trial, this Court will not set aside a judgment of conviction. Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86; Grizzell v. State, supra, and Phillips v. State, Tex.Cr.App., 328 S.W.2d 873.

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


author: WOODLEY, Presiding Judge.

text:
    Leport WALTON, Appellant, v. The STATE of Texas, Appellee.
    No. 34489.
    Court of Criminal Appeals of Texas.
    April 11, 1962.
    Pope & Heitler, Tyler, for appellant.
    Weldon Holcomb, Dist. Atty., Henry L. McGee, Jr., and Jack G. Norwood, Asst. Dist. Attys., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawful possession of whisky in a dry area for the purpose of sale, two prior convictions for like offenses being alleged for enhancement; the punishment, two years in jail and a fine of $1,000.

Calvin Jernigan, Inspector for the Texas Liquor Control Board, accompanied by Johnnie Perdue and James Rogers, Police ■Officers of the City of Tyler, searched the Economy Cafe in said city under authority ■of a search warrant which named the appellant herein as the person who occupied and was in charge and in control of said cafe.

The warrant was served on appellant, who was in the front part of the cafe.

Six half pint bottles of Old Crow Whis-ky were found in the cafe, two in a stone ■crock of sugar and 3 under the water heater in the kitchen, one in the soft drink box in the rear of the dining room.

It was stipulated that the area was dry, ■and by evidence and stipulation the two previous convictions of appellant upon pleas of guilty to the possession of whisky in a dry area for the purpose of sale were ■established.

Appellant’s first four claims for reversal relate to the testimony of Police 'Officer Johnnie Perdue and are presented as informal bills of exception 1 to 4 inclusive.

Bill 1 complains that on cross-examination, in answer to the question “But you don’t like him (appellant) a bit in the world and that is your testimony?” the witness answered “Yes, sir; because in my opinion he is a bootlegger and I don’t have no use for him.”

The court sustained appellant’s objection to the statement of the witness and instructed the jury not to consider it for any purpose. Appellant reserved exception to the court’s overruling of his motion for mistrial.

The complaint must be considered in light of the fact that the witness had testified that he was not friendly with appellant and carried no good feeling or will toward him “not a bit in this world”, and that appellant had asked the witness if it was not a fact that he was mad at the appellant because he had brought a law suit against him for false arrest, to which the witness replied that appellant had not sued him for false arrest.

In view of the evidence and the court’s instruction to the jury, no reversible error is shown. Kilgore v. State, 111 Tex.Cr.R. 440, 15 S.W.2d 21.

Bill 2 complains that the court overruled his objection and his motion to strike the question and answer (referring to people working at the Economy Café) “who were they working for, if you know?” to which the witness had answered “For Leport Walton.” We see no error.

Bill 3 complains that the court overruled his objection and motion to have the jury instructed not to consider the witness’ answer: “How do I know it? They have told me.”

Appellant’s counsel had asked the witness to tell the jury how he knew that the persons referred to in the preceding bill were working for appellant, and the answer is shown to have been in response to such question.

The fact that the witness further testified on cross-examination that the statements referred to were not made in the presence of the appellant did not render the answer inadmissible.

Bill 4 shows that after having testified on direct and on cross-examination that the premises searched, known as the Economy Cafe, was under the control of appellant on the day of the search, and having testified on cross-examination that he knew that to be true of his own knowledge, and after the witness had testified that he had never seen the persons above mentioned get paid, the witness was asked by appellant’s counsel, and answered:

“Q. Now you say that the premises were controlled by Leport Walton on that date and you know that? A. Yes, sir.
“Q. You know that of your own knowledge, don’t you sir?
“A. I believe it with my soul and heart.”

The hill complains that the court overruled appellant’s objection to the answer of the witness and his motion that the entire testimony of the witness with reference to the control of the premises on the day of the search be stricken.

We are aware of no authority supporting this claim of error and are cited to none.

There was ample evidence from other sources sufficient to sustain a finding that appellant was in control of the premises, and the case was submitted to the jury as one of circumstantial evidence.

Appellant’s remaining informal bill he relies on in his brief complains of the overruling of his objection to the answer of Officer Rogers: “He attempted to leave after that.”

The answer was in response to the question asking the witness to “tell the jury, please, what Leport Walton did.”

The overruling of the objection upon the ground “Conclusion and is repetition” was not error warranting reversal.

Appellant’s remaining claims of error relate to the court’s refusal to give special requested charges.

No exception to the court’s rulings in this regard are shown in the record, hence these claims of error are not before this Court for review. See Medlock v. State, Tex.Cr.App., 356 S.W.2d 312, and cases there cited.

The judgment is affirmed.


text:
    Luther W. SHELTON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 34062.
    Court of Criminal Appeals of Texas.
    April 4, 1962.
    George Washington, Jr., Hamah R. King, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Edward D. Michalek, Jr., Walter A. Carr, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The convictions are for the misdemeanor offense of unlawful assembly under Arts. 439 and 449, Vernon’s Ann.P.C.; the punishment, a fine of $500 against each appellant.

The four appellants are Negroes who were jointly charged with two members of the white race with intentionally aiding each other by purposely grouping at the entrance of the restaurant to illegally prevent the restaurateur from rightfully pursuing his occupation.

The evidence shows that J. D. Burleson, who had been the lessee from the railroad since 1954, was the owner and operator of a restaurant located in the Union Terminal Building in the City of Houston. The restaurant contains 6,000 square feet, with double doors opening into a passageway which leads to the lobby of the Union Station and another door facing on the railroad tracks, and food is served from 6 A.M. to 10 P.M. daily.

Burleson testified that about 3 P.M. on February 27, 1961, when the appellants attempted to enter the door between the restaurant and the terminal lobby, he prevented them from entering by securely closing its doors.

The evidence further shows that the appellants at times were assembled together and also among other persons at the lobby entrance door of Burleson’s restaurant; that they were in such proximity to one another that the customers were unable to enter the restaurant, and that some were pushing and shoving while standing in the group; and that Burleson did not want the appellants inside of his restaurant. Burle-son was unable to serve the numerous customers who tried to enter the restaurant from the time the appellants arrived until they were removed by the officers because of their concerted acts and conduct at the entrance of the restaurant.

The arresting officer, while testifying, identified each of the appellants and said that they were just outside the double doors between the restaurant and the terminal lobby when he arrived about 7:30 P.M.; and also that there were 30 to 40 other persons at and near the door of the restaurant.

Appellant Graves was the only appellant to testify and no other evidence was offered in their behalf.

The Appellant Graves testified that he and Appellant Jones, accompanied by two girls, went to the restaurant about 6 P.M.; that he had no intent and purpose of preventing Burleson from operating the restaurant, and that they were arrested about 8:30 P.M.

The jury resolved the issues of fact against the appellants, and the evidence being sufficient to support the convictions, the judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Archie D. BEATY, Appellant, v. The STATE of Texas, Appellee.
    No. 34491.
    Court of Criminal Appeals of Texas.
    April 4, 1962.

      Pope & Heitler, Tyler, for appellant
    Weldon Holcomb, Dist. Atty., Jack G. Norwood and Henry L. McGee, Jr., Asst. Dist. Attys., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the offense of receiving and concealing stolen property; the punishment, 10 days in jail and a fine of $100.

The stolen property described in the information was two hub caps of the value of $7.50.

The State’s proof shows that the appellant operated an automobile wrecking yard where he engaged in buying and selling wrecked automobiles and parts. The injured party, James Bedgood, owned an automobile which was equipped with Dodge Lancer chrome 4-spinner bar bullet hub caps. He had painted the checker dots brown over red to match the color of his car. The name of a former owner, “Stine”, was inside some of the hub caps. In November, 1960, two of the hub caps were stolen from the automobile. The injured party then went to the appellant with the two hub caps which were left, showed them to him and asked that he be on a lookout for the missing hub caps. At such time appellant stated he would be on the lookout for them. Later, on February 8 or 9, 1961, the injured party recovered the two hub caps at the police station and put them back on his automobile. That night, while he was in a theatre, all four hub caps were stolen from his automobile. The next day, February 9, the injured party’s father went to appellant’s place, described the stolen hub caps to appellant and asked that he watch out for them. Appellant stated at such time that he knew the hub caps. Several days later the father .returned and asked appellant if he had seen the hub caps and appellant stated that he had not. On February 23, the father returned to appellant’s place of business and found one of his son’s missing hub caps hanging on the wall. The name ‘Stine” was inside the hub cap. When asked where he got the hub cap, appellant stated that “he traded a negro some fender skirts for it” and “This is the only one” that he had traded for. After the officers were called the father then found in a stack of hub caps on the floor another hub cap which had been stolen from his son’s automobile. Appellant then stated that he had traded for the two hub caps. It was shown that the reasonable market value of the two hub caps was $15.

Testifying as a witness in his own behalf, appellant stated that he had traded for the two hub caps with a colored man whom he did not know. Appellant further stated that he did not know the hub caps were stolen and that had he known he would not have acquired possession of them.

In his brief and in oral argument appellant complains of the court’s action in overruling certain objections which were made to the court’s charge and in refusing a special requested charge.

The record reflects that the court did overrule appellant’s objections to the charge and refused the requested charge but there is no showing that appellant reserved any exception to the court’s ruling.

In the absence of a timely exception to the court’s ruling, the court’s action in overruling the objections to the charge and refusing the special requested charge is not properly before us for review. Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291 and Carpenter v. State, Tex.Cr.App., 345 S.W.2d 412.

Appellant insists that the evidence is insufficient to sustain the conviction because it does not show that he knowingly received and concealed the stolen property which the jury, under the court’s charge, was required to find, before finding him guilty.

The State’s evidence shows that before receiving the two hub caps appellant had been advised on three occasions that hub caps of similar description had been stolen from the injured party, which was sufficient to warrant the jury’s conclusion that appellant received the same, knowing they were stolen.

The evidence further shows that the two hub caps had been mixed with other hub caps at appellant’s place of business (one on the wall and the other in a heap on the floor) and was sufficient to warrant the jury’s finding that appellant knowingly concealed the same. It is held that the word “conceal” is not to be given the liberal construction of hiding, but the handling of property in a manner that would throw the owner off his guard in his search for the same. See 5 Branch’s Ann.P.C.2nd, Sec. 2722, pages 163-164; Barker v. State, 109 Tex.Cr.R. 67, 2 S.W.2d 851.

The judgment is affirmed.

Opinion approved by the Court.