author: SMITH, Justice.

text:
    Betty HENDRICKS et vir, Petitioners, v. Alton B. CURRY et ux., Respondents.
    No. A-10794.
    Supreme Court of Texas.
    March 30, 1966.
    Rehearing Denied April 27, 1966.

      Coleman & Whitten, Denton, for petitioners.
    G. H. Kelsoe, Jr., Dallas, for respondents.
   SMITH, Justice.

This is an appeal from two judgments of the trial court, both affirmed by the Court of Civil Appeals. 389 S.W.2d 181. One of the judgments was entered by the trial court in Cause No. 26,909, and the other was entered in Cause No. 26,910. Appeals from the two judgments were prosecuted on separate transcripts, but they were briefed together in the Court of Civil Appeals and were consolidated by that Court into one cause. They have been briefed and presented as one cause in this Court.

The record shows that in Cause No. 26,-909 the trial court, on December 2, 1963, adjudged the minor daughter of Betty Hendricks, then Betty Shellenberger, to be a dependent and neglected child, and awarded custody of the child to respondents herein, Alton B. Curry and wife. Thereafter, on July 17, 1964, the trial court denied a motion to set the judgment aside. In Cause No. 26,910 the trial court by judgment dated July 17, 1964, decreed an adoption of the child by the Currys. We sever Cause No. 26,910 from Cause No. 26,-909; and as to it, we reverse the judgments of the Court of Civil Appeals and trial court and here render judgment denying the Curry’s petition for adoption. We reverse the judgments of the courts below in Cause No. 26,909 and remand the cause to the trial court for a new trial of the issue of custody. The facts leading to the two judgments follow:

On June 3, 1963, Betty Shellenberger, an unwed mother, gave her consent in writing for the adoption of her infant daughter. On the same day the child was placed in the care and custody of the respondents, Mr. and Mrs. Alton B. Curry, for the purpose of adoption. The evidence shows that the mother gave her written consent to adoption of the child upon assurance of an attorney, acting for the Currys, that the people he represented were “wonderful, high-class people” and would “give the child a real home.” The proposed adoptive parents were not identified to Betty by the attorney. She later discovered their identity. On November 18, 1963, the Cur-rys filed adoption proceedings in Dallas County, Texas, the birthplace of the child. On December 2, 1963, the mother filed a withdrawal of her consent to adoption of the child and filed a petition for a writ of habeas corpus by which she sought custody and control of the child. On the same day, the Currys, who had become residents of Denton County on November 30th, dismissed the adoption proceeding pending in Dallas County; and also on the same day they filed the two causes, above noted, in the District Court of the 16th Judicial District of Texas, a district comprised of Den-ton and Cooke Counties. The suits were filed in Denton County.

In Cause No. 26,909, the Currys sought a judgment under Article 2330, Vernon’s Texas Civil Statutes, adjudging the child to be a dependent and neglected child, and awarding custody of the child to them. The only grounds alleged for adjudging the child to be dependent and neglected were that until petitioners took her the child was dependent upon the public for support, that she was destitute, homeless and abandoned, and that she did not have proper parental care or guardianship. On the day the proceeding was filed, the Court, without notice to the mother and after an ex parte hearing held in Cooke County, entered a judgment declaring the child to be a dependent and neglected child, terminated all parental rights of the mother, and awarded custody of the child to the Currys.

In Cause No. 26,910, the Currys petitioned for leave to adopt the child, alleging that the natural mother had consented to her adoption. To their petition they attached the consent to adoption which had been executed by the mother on June 3, 1963. On the day the petition was filed, the court appointed an investigator and ordered that a report be made within thirty days. The court, on the same day, set the adoption petition for hearing on January 13, 1964. On December 17, 1963, the Currys filed an amendment to their adoption petition in which they set up the judgment of dependency and neglect as an additional basis for granting the petition.

On January 2, 1964, Betty Shellenberger filed a petition in Cause No. 26,909 in which she sought to have the judgment of December 2, 1963, declared void and set aside, and to have the care, custody and control of the child returned to her. In an amended petition, Betty (Shellenberger) Hendricks and her husband challenged the jurisdiction of the court to hear the cause and enter the judgment of December 2, 1963, in Cooke County, since the cause was pending in Denton County, and, in addition, sought a full hearing on the issue of dependency and neglect. On January 2, 1964, Betty Shellenberger also filed in Cause No. 26,910 a petition in intervention, in which she was later joined by her husband, and in which they prayed that the Curry’s petition to adopt the child be denied. Both causes were set for trial on May 4, 1964, and, after a joint and full hearing, the judgments described in the beginning of this opinion were rendered and entered on July 17, 1964. At the request of the Hendrickses, the trial court filed extensive findings of fact and conclusions of law in support of its judgments.

The judgments adjudicated three separate and distinct issues: (1) The status of the child as a dependent and neglected child under Article 2330; (2) adoption of the child by the Currys; and (3) the right to custody and possession of the child. These issues will be discussed in the order in which they are listed. But we must first dispose of the jurisdictional question.

We hold that the trial court had jurisdiction to hear the evidence and enter the judgment of December 2, 1963, in Cause No. 26,909 in Cooke County. Denton and Cooke counties are in the 16th Judicial District of Texas. The Currys and the child were resident citizens of Denton County. Under Section 2, Article 1919, Vernon’s Texas Civil Statutes, District Courts of judicial districts containing more than one county may, with certain exceptions, hear and determine in any county in the district any nonjury, noncontested or agreed case pending in the district. This was a nonjury case and does not fall within any of the exceptions listed in such article.

On the first of the three issues listed above, we hold that there is no evidence of probative force to support the judgment declaring the minor girl to be a dependent and neglected child on December 2, 1963, when the original judgment was entered. The judgment did not indicate which of the grounds alleged in the petition was made the basis of the judgment. The only relevant findings of fact, made after the hearing on May 4, 1964, are as follows:

“That said child was approximately six months of age at the time of the initial hearing in said cause on December 2, 1963, under the age of 16 years, and was dependent upon the public for her support, was destitute, homeless and abandoned until petitioners undertook her support. Said child had not the proper parental care or a home until petitioners gave her a home, and no guardian had been appointed of her person or estate.”

It is doubtful that these findings will support the judgment of dependency. As we read them, all of the findings, except possibly the finding that the child was “dependent upon the public for support,” relate to the time when the child was placed in the possession of the Currys some six months before the hearing and adjudication. Article 2330 defines a “dependent” or “neglected” child as one “who is dependent upon the public for support or who is destitute, homeless or abandoned; or who has not proper parental care or guardianship * * *.” These provisions do not contemplate that an adjudication may be based solely upon conditions which existed in the distant past but no longer exist. But for purposes of this opinion we will assume that the findings relate to the time of the hearing and adjudication, and will examine the record for supporting evidence as of that time.

It is not seriously suggested by the Currys that there is evidence to support a finding that at any time from June 3rd to December 2nd the child was destitute, homeless or dependent upon the public for support. Indeed, the record shows as a matter of law that she was not. Admittedly, the child had no legal guardian of her person or estate. Our inquiry narrows, therefore, to determining whether there is in the record evidence of probative force that on December 2, 1963, the child was an “abandoned” child or that she did not have proper parental care.

The trial court’s finding of abandonment is based upon the admitted fact that the mother gave up possession of her child and consented to its adoption. The mother testified that before executing the consent to adoption she was assured by the attorney obtaining it that she could withdraw consent at any time prior to six months’ residence of the child in the home of the adoptive parents. However, this testimony cannot be used as evidence of non-abandonment; the trial judge had a right to disbelieve it, and he evidently did disbelieve it inasmuch as he refused to find that the assurance had been given. We are thus left with the bare question of whether “abandonment” within the meaning of Article 2330 can be found as a fact from . execution by a parent of a written consent to adoption and delivery of possession of the child to the proposed adoptive parents. We hold that it cannot.

It is settled law in this State that consent to adoption of a child, where required, can be withdrawn at any time before an adoption decree is entered. Wilde v. Buchanan, 157 Tex. 606, 305 S.W.2d 778 (1957); Boyed v. Wilson, Tex.Civ. App., 258 S.W.2d 223 (1953), writ refused. It follows that the acts of a parent in executing a consent to adoption and delivery of possession of a child pursuant thereto are done with the reserved legal right to withdraw consent at any time before entry of an adoption decree. With this legal ■right reserved, the parent does not “abandon” the child. A child is “abandoned” within the intent and meaning of Article 2330 when it is “deserted” by its parent or parents. One of the illustrations given by Webster’s Third New International Dictionary of the meaning of the word “abandonment” is “desertion of a child by its parents.” In the situation indicated, the child is not “deserted”; the acts are usually done, as they unquestionably were in this case, for the purpose of better providing for the child’s welfare. See Guardianship of Baby Girl Rutherford, 188 Cal. App.2d 202, 10 Cal.Rptr. 270, 98 A.L.R.2d 410 (1961). Article 46a, the adoption statute, requires parental consent to adoption except in certain circumstances. One of the circumstances in which consent is not required is where “a living parent or parents shall voluntarily abandon and desert a child.” In that context “abandonment” was defined in Strode v. Silverman, Tex. Civ.App., 209 S.W.2d 415, 419 (1948), writ refused, n. r. e., in this language:

“Voluntary abandonment, as used in the adoption statute, * * * is used more in a sense of a wilful act or course of conduct, and such as would imply a conscious disregard or indifference to such child in respect to the parental obligation that the parent owes to such child.”

See also Lee v. Purvin, Tex.Civ.App., 285 S.W.2d 405, 408 (1956), writ refused, n. r. e. The definition is a sound one and should also be followed in determining whether a child is an “abandoned” child within the meaning of Article 2330. It is all too plain to permit of quibbling that the acts of Mrs. Hendricks in signing the written consent to adoption and in giving up possession of her child were not such acts “as would imply a conscious disregard or indifference to such child” in respect to the parental obligations she owed her child.

Neither, we hold, does the evidence in the record support the finding that on December 2, 1963, the child had not proper parental care. The term, “parental care,” as used in the statute is purely descriptive; it refers to the kind and quality of care which should be, and ordinarily is, provided by parents. Webster’s Third New International Dictionary defines the word “parental” as “appropriate to, characteristic of, or resembling a parent,” as well as “of or relating to a parent.” See also 67 GJ.S. p. 625. The statute does not provide that a child is dependent and neglected when it is not provided proper care by its parents. If it did, we would have a different problem. “Parental care” may be provided by persons who occupy a parental position in the life of a child, either permanently or temporarily. Even the word “parent” when used in a statute is sometimes interpreted to include one who merely occupies the position of a parent. See Snowden v. State, 12 Tex.App. 105, 41 Am. Rep. 667-669 (1882), in which it was held that a statute providing that “the exercise of the right of moderate restraint or correction given by the law to the parent over the child” did not amount to an assault and battery, applied to a brother who stood in loco parentis to his younger sister.

We recognize that our interpretation of the term, “parental care,” does not conform to an interpretation given it by some of the Courts of Civil Appeals. See Bee v. Robbins, Tex.Civ.App., 303 S.W.2d 827, 831 (1957), no writ history; Spangler v. Breashears, Tex.Civ.App., 359 S.W.2d 206, 208-209 (1962), writ refused, n. r. e.; Hendrick v. Voss, Tex.Civ.App., 334 S.W.2d 308, 315 (1960), no writ history. We are satisfied, however, that the interpretation we have given it more nearly conforms to the true intent and purpose of the Legislature in enactment of the statute. What are now Articles 2330-2337 first became a part of our statutory law in 1907. See 13 Gammel’s Laws of Texas 135. By their enactment the Legislature asserted the overriding interest of the State in the “care, education, maintenance and moral and physical training” of its children. See DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944). One of the ways in which the statutes undertake to guard the interest of the State is by authorizing courts to commit the maintenance, education and training of dependent children to persons who can and will give them proper care. Article 2335. If proper “parental care,” as used in Article 2330, means proper care by a child’s parents, it would be the duty of a court to declare a child dependent once again as soon as its care was undertaken by those awarded custody in the first adjudication. It would be a paradox to hold in cases such as this that a child does not have proper “parental care” when it is being cared for by persons to whom it has been delivered for adoption, but that it does have proper “parental care” when it is being cared for by the same persons under an award of custody by a court. Moreover, if the term means care by natural parents, courts on their own motion or on petition of total strangers would be required to declare dependent every child in a foster home regardless of the kind of care, training and education it was receiving.

That part of the judgment in cause No. 26,909 which adjudicates the minor girl to be a dependent child and terminates the parental rights of Betty Hendricks must be vacated. When it is vacated, there remains no legal basis for the judgment of adoption in Cause No. 26.910 inasmuch as Mrs. Hendricks withdrew her consent to adoption before the judgment was rendered and entered.

Only the issue of custody remains for our disposition. The legal right to custody of the child was in its mother on both December 2, 1963, and July 17, 1964; but the mother voluntarily surrendered possession and actual custody on June 3, 1963. By her pleadings filed in the two causes she sought to regain possession of hsr daughter. Under a long line of decisions by this Court, jurisdiction of the trial court was thus invoked to decide whether the child’s welfare and best interests would be served by restoring possession and actual custody to the mother, the legal custodian, or by awarding both legal and actual custody to the Currys. Legate v. Legate, 87 Tex. 248, 28 S.W. 281 (1894) ; State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900); Dunn v. Jackson, Tex. Com.App., 231 S.W. 351 (1921), holding approved; Davis v. Sears, Tex.Com.App., 35 S.W.2d 99 (1931), judgment approved; DeWitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944). After a full hearing on May 4, 1964, the trial court awarded full custody of the child, legal and actual, permanently to the Currys, and thereafter made extensive findings of fact to support a legal conclusion that the best interests of the child would be served thereby.

We have held that the trial court erred in adjudicating the minor girl to be a dependent child. Rule 503, Texas Rules of Civil Procedure, directs that judgments not be reversed for harmless errors, and provides: “* * * and if it appear to the court that the error affects a part only of the matter in controversy, and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error.” The issues of dependency and custody are severable. The trial court made ultimate fact findings of Mrs. Hendricks’ “unfitness” to have custody of her child and that an award of custody to the Hendrickses would not be in the child’s best interests, and made detailed subsidiary fact findings in support thereof. It seems clear from the findings, however, that in deciding the custody issue the court gave great weight to a finding that Mrs. Hendricks “abandoned” her child, a fact which we have held is not supported by evidence. Under these circumstances we are not authorized to sever the issues in Cause No. 26,909 and affirm the judgment of custody.

The case is severed into two causes as they were filed in the trial court. The judgments of the Court of Civil Appeals and trial court in Cause No. 26,910 are reversed and judgment is here rendered denying the petition of Alton B. Curry and wife, Ann Curry, to adopt the Shellen-berger child. The judgments of the Court of Civil Appeals and trial court in Cause No. 26,909 are reversed and the cause is remanded to the trial court for a new trial of the custody issue, and with directions to vacate the judgment declaring the child to be a dependent child and terminating the parental rights of Mrs. Hendricks and to render judgment denying that relief.

      . Emphasis ours throughout.


source: Caselaw Access Project

author: WALKER, Justice.

license: Public Domain

text:
    Lillian M. DENNIS, Petitioner, v. DIAL FINANCE & THRIFT COMPANY et al., Respondents.
    No. A-10969.
    Supreme Court of Texas.
    April 6, 1966.
    Connally Lockhart and Sam H. Wilds, Amarillo, Henry T. Ray, Amarillo, for petitioner.

      Clayton, Kolander, Moser & Templeton, Amarillo, for respondents.
   WALKER, Justice.

As this case reaches us, it is an action for the recovery of money obtained by fraud and exemplary damages. The suit was instituted by Lillian M. Dennis, petitioner, against Dial Finance & Thrift Company and Bernard Justus, respondents. On the basis of the verdict and the undisputed evidence, the trial court rendered judgment in favor of petitioner and against respondents, jointly and severally, for $68.58 actual damages and $3,250.00 exemplary damages. The Court of Civil Appeals concluded that there is no evidence to show malice, and accordingly modified the trial court’s judgment to eliminate the recovery of exemplary damages. 392 S.W.2d 717. In our opinion the findings of the jury are supported by the evidence, and the cause will be remanded to the Court of Civil Appeals for a determination of whether the amount of exemplary damages awarded by the jury is excessive.

Dial is engaged in the business of lending money, and Justus is manager of its Amarillo office. On December 7, 1959, Dial advanced $716.65 to petitioner and her husband, Leonard W. Dennis. As evidence of the indebtedness, petitioner and Dennis executed a note to Dial for $900.00, payable in 18 monthly installments of $50.00 each and secured by a chattel mortgage on their furniture. Petitioner and her husband were divorced about four months later. She kept the furniture, but he continued making payments on the note with some degree of regularity.

After the divorce petitioner decided to move to Santa Fe, New Mexico. She told Justus of her plans and received his permission to take the furniture with her, which she did. Petitioner promised at that time to pay the note if her former husband failed to do so. By the middle of July, 1960, Dennis had paid $250.00 on the note but was two installments in arrears. He went to Dial’s office and discussed his situation with Justus. There is a conflict in their testimony regarding this conversation, but the evidence will support the conclusion that Justus agreed to accept $550.00 in full payment and settlement of the note. In any event Dennis paid $550.00 to Dial by a check marked “Acct. in full,” and the note was returned to him. Entries were also made on Dial’s records showing that the account had been settled for $550.00.

A few days later Justus telephoned petitioner at the place where she worked in Santa Fe. He informed her there was a balance of $100.00 due on the note and inquired whether she could pay the same. Upon being advised that she did not have the funds, he told her to think the matter over, that he would call back in a few days, and that it would be necessary to take possession of the furniture if the balance was not paid. When Justus telephoned her a second time and was again advised that she was unable to pay, he agreed to settle the claim for $68.58. He warned her that the furniture would be picked up if the $68.58 was not paid within two weeks. Later petitioner was telephoned by another representative of Dial, who also threatened to take the furniture if she did not pay. Petitioner sold her deep freeze and used the proceeds to pay the $68.58 to Dial. Entries were then made on Dial’s records to show that the account was reopened with an unpaid balance of $68.58, and that such balance was promptly paid.

Only five issues were submitted to the jury, but the fifth is identified in the charge as Special Issue No. 7. By their answers to the five issues, the jury found: (1) that Justus agreed to settle and discharge the note for a paymejif'of $550.00 by Dennis; (2) that after' Dennis paid the $550.00, Justus represented to petitioner that the note was unpaid; (3) that such representation was fraudulently, maliciously or wil-fully made; (4) that petitioner relied on such representation in making the $68.58 payment; and (7) that petitioner is entitled to recover $3,250.00 as exemplary damages from Dial. Respondents made no objection to Special Issue No. 3, to the definition of “malicious act” accompanying same, or to the instruction given in connection with Special Issue No. 7.

The Court of Civil Appeals reasoned that while the representation made by respondents was wrong, their conduct cannot be regarded as wanton or malicious. In support of this conclusion, it relied primarily on Ware v. Paxton, Tex.Sup., 359 S.W.2d 897, which was an unreasonable collection efforts case. We held there that the evidence failed to show a campaign of harassment that might properly be characterized as malicious and wanton misconduct, and in the course of the opinion quoted from 25 C.J.S. Damages, § 123(5), as follows:

“The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.”

As pointed out by the Court of Civil Appeals in the present case, respondents did not conduct an extended campaign of harassment and intimidation, there is no evidence of abusive language, and the whole transaction took place within a period of ten days. These circumstances would be material if petitioner were relying on unreasonable collection efforts to show malice, but that is not the basis of her claim. According to the pleadings, she originally sought damages for unreasonable collection efforts, but no issue concerning that ground of recovery was submitted or requested. The case went to the jury as an action to recover money obtained by fraud.

It is generally recognized that exemplary damages may properly be awarded when the plaintiff has suffered actual damage as the result of fraud intentionally committed for the purpose of injuring him. See Hubby v. Stokes, 22 Tex. 217; Oliver v. Chapman, 15 Tex. 400; Graham v. Roder, 5 Tex. 141; 24 Am.Jur. Fraud and Deceit, § 222 ; 37 C.J.S. Fraud § 144. Several other Texas decisions in this general area of the law are cited and reviewed in Briggs v. Rodriguez, Tex.Civ.App., 236 S. W.2d 510 (wr. ref. n. r. e.). The plaintiffs there were induced by false representations to pay the defendant $300.00 they did not owe. Exemplary damages were awarded by the jury, and the defendant contended on appeal that such award was improper because the action for recovery of the $300.00 was not based upon fraud but upon an implied contract to return the money wrongfully obtained. This contention was rejected, and the allowance of exemplary damages was upheld.

A person who intentionally misrepresents facts for the purpose of injuring another is guilty of wanton and malicious conduct. The allowance of exemplary damages in cases of wilful and deliberate fraud does not, therefore, do violence to the rule quoted above. Under the evidence in the present case and the findings of the jury, the note was settled and paid in full by petitioner’s husband. With knowledge of that fact, respondents set out deliberately to defraud one of their former customers who owed them nothing. When convinced that petitioner was unable to pay the $100.00 originally demanded, they decided to and did take what they could get. We thus have a case of manifest, wilful and flagrant fraud, and in our opinion the facts proven support the finding of the jury in response to Special Issue No. 3.

Respondents have directed our attention to a number of their points of error in the Court of Civil Appeals, but only one of them can be considered here. Petitioner waived her claim to exemplary damages against Justus when she went to the jury with no issue submitted or requested concerning the amount of such damages he should be required to pay. See Van Deventer v. Gulf Production Co., Tex.Civ. App., 41 S.W.2d 1029 (wr. ref.). The judgment of the Court of Civil Appeals is correct, therefore, in so far as it relieved Justus of any liability for exemplary damages.

As we construe respondents’ Point No. 21 in the Court of Civil Appeals, it presents the contention that the amount of exemplary damages awarded by the jury is excessive. This question was not reached by the intermediate court, and we have no jurisdiction to decide it. The judgment of the Court of Civil Appeals is accordingly reversed, and the cause is remanded to that court for a consideration of respondents’ Point No. 21.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Lindy Q. MIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 35106.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 11, 1966.
    Lucius D. Bunton (Court Appointed), Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Mike Berry, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary of a private residence at night; the punishment, enhanced by proof of two prior convictions of felonies less than capital, life imprisonment.

Appellant’s conviction was affirmed by this Court on March 20, 1963, and is reported in Mixon v. State, 365 S.W.2d 364. Two days before this conviction became final, the Supreme Court of the United States handed down its opinion in Douglas and Meyes v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, which established the rule that an indigent has a right to be represented by counsel on an appeal of his conviction. Upon a showing that appellant was indigent and had requested and was denied counsel for his above-mentioned appeal, this Court, in a habeas corpus proceeding, set aside its order affirming appellant’s conviction and ordered the trial court to appoint counsel to represent him on appeal or, in the alternative, to release appellant from custody. Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417. Able counsel was appointed, and he is to be commended for the diligence with which he has represented appellant on this appeal.

The facts are set out in Mixon v. State, supra, and we remain convinced that appellant’s contention concerning the invalidity of the two convictions alleged for enhancement purposes was properly disposed of in that opinion.

Appellant challenges the sufficiency of the evidence to support the allegation in the indictment that he “did then and there at night, by force, threats and fraud, break and enter the private residence of Kenneth Smith * * He concedes in his brief that anyone “breaking” into a place has used force, but contends that there is no evidence in the record that appellant broke into the residence of Smith, or that his entry was otherwise accomplished by force.

Article 1394, Vernon’s Ann.P.C. defines “breaking,” and says that the entry in question must be made with actual force, but that the slightest force is sufficient. The statute further states that “it may be by lifting the latch of a door that is shut, or by raising a window, the entry at a chimney, or other unusual place * *

The evidence, discloses that Mr. Smith had a drive-in restaurant and an apartment, and that the apartment was in a separate two-story building located about fifty feet from the restaurant; that this apartment consisted of three rooms and was located on the second floor. Mr. Smith stated unequivocally that this upstairs apartment had only one door, but had “windows and things.”

Mrs. Smith testified that she was awakened and thought she heard someone in the house, and asked her husband if he had shut the back door, to which he answered, “yes.”

At the close of evidence, appellant asked for a directed verdict on the ground that the state had failed to show that entry was made by force because it was not shown that the door was closed. The state was granted leave to re-open the presentation of evidence and recalled witness Kenneth Smith. The following testimony was developed :

Q: “Mr. Smith, back again to the offense in question on the 21st day of April, 1962, I would ask you, sir, did you give your consent to this defendant to take articles of clothing from your home?”
A: “No, I didn’t.”
Q: “Did you give him your consent to him (sic) to enter the house?”
A: “No.”
Q: “Was the door open or shut?”
A: “Shut.”

There is sufficient evidence here from which the jury could conclude that appellant gained entry by opening the only door to the apartment. An entry into a house through a door that was closed is an entry by force. Warden v. State, Tex.Cr. App., 366 S.W.2d 786, and cases there cited. Appellant attaches import to the fact that Mrs. Smith, in her testimony, referred to “the back door” while Mr. Smith at one time mentioned “the front door.” Mr. Smith supervised a chain of restaurants spread over a wide area of the state. The Smith’s permanent residence was at Sweet-water, Texas, and the apartment herein discussed was occupied by Mr. Smith only when he was overseeing those restaurants in or near Odessa, the site of this burglary. Mrs. Smith’s visits to the apartment were even less frequent, as the maintenance of their child in school and other exigencies did not always permit her to travel with her husband. Under these circumstances, it would not be unusual for the couple to offer different descriptions of the door to this apartment. At least the inference that might be drawn from their testimony — that is, that there were more than one door to the apartment — would not be sufficient to overcome Mr. Smith’s statement that the apartment had but one door.

Appellant cites several cases to support his contention that the evidence is insufficient to sustain his conviction. We find that they are each distinguishable. Jones v. State, 25 Tex.App. 621, 7 S.W. 669, was reversed because there was no evidence at all tending to show how the accused entered the house he was accused of burglarizing. The court stated, “There may have been another door open, through which the defendant may have entered the house * * In Thomas v. State, 131 Tex.Cr.R. 269, 97 S.W.2d 955, there was no evidence showing the condition of other doors in the house, or that the door shown to be bolted was the only door in the house. Newman v. State, 55 Tex.Cr.R. 273, 116 S.W. 577, is not in point. It was reversed because appellant had an alibi for the time the burglary was committed, and there was no corroboration of accomplice witness’ testimony. In Livingston v. State, 133 Tex.Cr.R. 437, 112 S.W.2d 190, there was no evidence at all as to the condition of the barn allegedly broken into prior to the time the offense was supposed to have occurred. In Castro v. State, 115 Tex.Cr.R. 291, 29 S.W.2d 760, the state relied upon circumstantial evidence to connect the defendant with the crime, and it, was shown that one door to the burglarized premises was open prior to the alleged offense. In Luce v. State, 128 Tex.Cr.R. 287, 81 S.W.2d 93, the evidence showed that a door to the residence broken into had been open for several days, and that other persons had also been in this residence. In none of these cases was the defendant found in the place he was accused to have entered by force.

There is no evidence in the record that appellant entered the apartment by some way other than through the only door leading into it. He was found inside the apartment. Considering the fact that the apartment was on the second floor, it is difficult to picture any other manner of entry which would not be considered made at an “unusual place” as contemplated in the statutory definition of “breaking” set out above. See Parrish v. State, 138 Tex.Cr.R. 150, 134 S.W.2d 271; Rogers v. State, 128 Tex.Cr. R. 218, 80 S.W.2d 967; Holland v. State, 47 Tex.Cr.R. 623, 85 S.W. 798; Knotts v. State, Tex.Cr.App., 32 S.W. 532; Alexander v. State, 31 Tex.Cr.R. 359, 20 S.W. 756.

An examination of Warden v. State, Tex.Cr.App., 366 S.W.2d 786; Benton v. State, 164 Tex.Cr.R. 618, 302 S.W.2d 138; Hall v. State, 161 Tex.Cr.R. 460, 278 S.W.2d 297; and the authority cited in these cases leads us to the conclusion that the evidence is sufficient to sustain the conviction.

We overruled appellant’s contention that the jury should have been charged on the law of circumstantial evidence. Montgomery v. State, 55 Tex.Cr.R. 502, 116 S.W. 1160, a case which also supports our conclusion as to the sufficiency of the evidence.

We find no reversible error in the record, and the judgment is affirmed.

WOODLEY, Judge

(dissenting).

The writer agrees that the evidence is sufficient to support the conviction and the record shows no reversible error in the trial of the case. Such was the unanimous holding of this Court in the appeal from the conviction now affirmed three years ago in Mixon v. State, reported in Tex.Cr.App., 365 S.W.2d 364 to 366.

The writer dissents from this second af-firmance of the same conviction upon the same record for the reason stated in his dissent in Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417, that being that the appeal, having been finally disposed of some three years ago, is not pending in this Court for review and re-affirmance on the same record.


author: DICE, Commissioner.

text:
    Montgomery Fly CAMERON, Appellant, v. The STATE of Texas, Appellee.
    No. 39056.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 27, 1966.

      Luther E. Jones, Jr., Corpus Christi, Cofer, Cofer & Hearne, by Hume Cofer, Austin, for appellant.
    James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

Prosecution was upon an indictment for ordinary theft which charged that on or about the 24th day of September, 1964, the appellant did unlawfully and fraudulently take money of the United States of America of over the value of $50 from one Charles J. Hedlund.

It was shown by the state’s evidence that in December, 1963, the appellant received as a gift from a woman in San Antonio two Cabochon emerald cuff links which had been specially cut and mounted by Julius Cohen, a jeweler in New York City. The two cuff links weighed 58.31 carats and had an appraised value of $3,400. It appears that the cuff links were not to appellant’s liking and he contacted the jeweler, Cohen, relative to trading them for some other cuff links. Early in 1964, Cohen went to San Antonio and took the two cuff links back to New York with him. A number of letters were then written by appellant to Cohen and on March 30 appellant requested that the cuff links be returned to him. Cohen testified that they were immediately sent to appellant by registered mail and that later, in April, 1964, a trade was made whereby appellant would receive some sapphire cuff links, and the two emerald cuff links were returned to him (Cohen) in New York. Cohen testified that he had possession of the two emerald cuff links from the time he received them in April, 1964, until he delivered them in Houston to Sgt. Brookbank, of the Alamo Heights police department, in January, 1965. The two emerald cuff links were positively identified by Cohen and introduced in evidence as state’s exhibit #1.

It was further shown that appellant had a jewelry floater policy with the. Aetna Casualty and Surety Company of Hartford, Connecticut, and that on January 10, 1964, the same was amended by adding Item #14, described as one pair of gold Cabochon emerald cuff links weighing 58.31 carats and valued at $3,400.

On July 27, 1964, appellant called the witness Travis Bailey, who was the representative of the Aetna Casualty and Surety Company in San Antonio, and reported that the two emerald cuff links had been lost. Bailey went to appellant’s office, and appellant again stated that the cuff links had been lost, or had disappeared. At such time appellant requested that the loss not be referred to the police as he did not want any publicity in the matter.

Appellant’s claim was thereupon referred to Charles Hedlund, a claims representative in San Antonio for the company. After investigation and a conference with appellant in which appellant stated to the adjuster that the cuff links were lost, Hedlund prepared a statement of claim which was referred to as a proof of loss and delivered it to appellant’s office with a draft dated September 22, 1964, signed by the witness as representative of the Aetna Casualty and Surety Company, payable to appellant in the sum of $3,400. On September 23, 1964, appellant signed the proof of loss and on September 24, 1964, the draft was deposited to appellant’s personal and separate account in the National Bank of Commerce in San Antonio.

Testifying as a witness in his own behalf, appellant swore that he did not return the two emerald cuff links to Cohen in April, 1964, and that he (appellant) had possession of them in San Antonio when they were discovered missing some time during the week of July 20, 1964. He further swore that the cuff links introduced in evidence as state’s exhibit #1 were not the two missing cuff links.

The court submitted the issue of appellant’s guilt to the jury upon the state’s theory of theft by false pretext and authorized the jury to convict appellant if they found from the evidence beyond a reasonable doubt that he obtained possession of the money from Charles J. Hedlund by fraudulently representing to him that he owned a set of cuff links which were lost, stolen, or misplaced.

The charge given by the court was substantially the same as that given in King v. State, Tex.Cr.App., 213 S.W.2d 541, which is set out in 5 Branch’s Ann.P.C.2d 130-132, See. 2683.1.

We do not agree that the instruction given by the court omitted as an essential element of the offense the actual appropriation of the money. The charge, taken as a whole, included such element in the court’s definition of the offense and application to the facts and fairly submitted the issue of appellant’s guilt to the jury.

Nor do we agree that the court erred in refusing to give a charge on circumstantial evidence. The testimony in the case is tantamount to direct evidence that appellant obtained the money from the injured party, Hedlund. It is the rule that where there is direct evidence that the accused took the property and his fraudulent intent is to be inferred from the main fact proven, no necessity exists for a charge on circumstantial evidence. See: Green v. State, 144 Tex.Cr.R. 221, 161 S.W.2d 1074, and cases there cited.

It is insisted that there was a fatal variance between the allegation in the indictment that the taking of the money was from the possession of Charles J. Hed-lund and the proof because the evidence showed that Hedlund did not have the actual control, care, and management of the money at the time of the taking. Metzger v. State, 168 Tex.Cr.R. 268, 325 S.W.2d 396, is cited and relied upon in support of such contention.

The record does not support appellant’s contention.

The witness Hedlund, in whom possession of the money was alleged in the indictment, testified that he was the claims representative for Aetna Casualty and Surety Company and had held such position for twelve years. He explained in detail how reserve funds were set up in his office to pay claims, and swore that he was authorized to pay the claim. As a representative of the company he was shown to be a special owner of the money, and the state was authorized to allege ownership in him. Art. 402, Vernon’s Ann.C.C. P.; Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.

The fact that the draft issued to appellant was not paid until it was received by the drawee bank in Hartford, Connecticut, five days after being deposited in San Antonio does not support appellant’s contention of variance. The record is clear that appellant received the money when the draft was deposited to his account in the hank in San Antonio on September 24. The fact that he received a draft, which he deposited, rather than money does not present a variance. McMorries v. State, 161 Tex.Cr.R. 608, 279 S.W.2d 90.

Metzger v. State, supra, cited by appellant, is not applicable, because in that case the person in whom possession of the money was alleged in the indictment was not an officer, member, or investor in the corporation which lost the money and could not, in law, have been the special owner of the same.

Appellant insists that his conviction violates due process of law because the record does not show that there was evidence to support the jury’s verdict in the case.

It is appellant’s contention that because the court’s charge authorized the jury to convict him upon a finding that he fraudulently represented that the set of cuff links was “lost, stolen, or misplaced” and there was no proof that he represented that the cuff links were stolen it is impossible to determine whether the verdict had any factual basis in the evidence.

While there was no proof that appellant represented that the cuff links were stolen, there was proof in the record that he represented that they were lost or misplaced. The general verdict of guilty can be applied to that portion of the charge submitting the question of his misrepresentation that they had been lost or misplaced, which has support in the evidence. 57 Tex.Jur.2d 66, Sec. 434; Blankenship v. State, 166 Tex.Cr.R. 51, 310 S.W.2d 579.

The contention is overruled.

In a most exhaustive brief and in oral argument, appellant insists that his conviction for theft by false pretext under the indictment for ordinary theft constitutes a denial of due process.

Appellant recognizes the many decisions by this court holding that a conviction for theft by false pretext under the provisions of Art. 1413, Vernon’s Ann.P.C., may be had upon an ordinary indictment for theft but insists that these decisions are wrong and should be overruled.

It is insisted that the indictment for ordinary theft presented against appellant did not include all the essential elements of the offense of theft by false pretext—■ such as the element of appropriation—and therefore constituted a denial of his right to demand the nature and cause of the accusation against him, as guaranteed by the Sixth Amendment to the Constitution of the United States, which was made obligatory upon the States by the recent decision of the Supreme Court of the United States in Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644, among other authorities, is relied upon in support of appellant’s contention.

It is also insisted that appellant’s conviction under the ordinary theft indictment which omitted an essential element of theft by false pretext constituted a denial of his right to equal protection of the law, under the Fourteenth Amendment to the Constitution of the United States, because an accused who was being prosecuted for the same offense upon an indictment for theft by false pretext would be protected by the rule that each essential element of the offense must be alleged or the indictment is fatally defective.

We have carefully considered the argument and authorities presented by appellant, and remain convinced that the decisions by this court holding that a conviction for theft by false pretext may be had upon a general indictment for theft are sound and should not be overruled.

Art. 1410, V.A.P.C., defines theft in general, as follows:

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”

Art. 1413, supra, provides:

“The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

Theft by false pretext, as defined in Art. 1413, supra, is but another form of theft.

Under the provisions of Art. 1413, supra, the only difference between theft by false pretext, defined therein, and ordinary theft is the circumstances by which the property comes into possession of the accused.

Under either statute, Art. 1410 or 1413, supra, to constitute theft the original taking must be wrongful and fraudulent.

In the early cases of Smith v. State, 35 Tex. 738, 739, and Maddox v. State, 41 Tex. 205, it was held that ordinary theft and theft by false pretext were not different offenses but only different in the facts and circumstances surrounding the taking, which need not be averred in the indictment.

We adhere to the holding that such facts and circumstances are evidentiary matters which need not be alleged.

Cole v. State of Arkansas, supra, cited by appellant, is not here applicable, because in that case the conviction of an accused was affirmed by the Supreme Court of Arkansas for an offense, under one section of a statute, for which he was neither charged nor tried in the trial court.

Here, appellant was charged, tried, and convicted for the one offense of felony theft as denounced and defined in Articles 1410 to 1419, Title 17, Chapter 8, of Vernon’s Annotated Penal Code of this State.

Dejonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, also cited by appellant, is not here applicable, because in that case the conviction was upon a charge not made in the indictment.

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

Opinion approved by the court.


text:
    Neal HILLIARD, Appellant, v. The STATE of Texas, Appellee.
    No. 38240.
    Court of Criminal Appeals of Texas.
    March 23, 1966.
    Rehearing Denied May 11, 1966.
    C. C. Divine, Francis L. Williams, Houston, for appellant.
    Carol Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant and Chester C. Divine, alias “Andy” Divine, Roy Dean Berger, A. L. Phipps, Mary Alice Zaid, and Alfred Divine were jointly charged by indictment with the offense of felony theft.

The indictment alleged that on or about the 14th day of August, 1963, the defendants did fraudulently take and steal $111.25 in money from one O. C. Jones.

Upon the granting of a severance, the appellant was separately tried and convicted and his punishment assessed at confinement in the penitentiary for a term of ten years.

The statement of facts in narrative form was prepared and certified by the trial judge after the parties were unable to agree upon one within seventy-five days after the giving of notice of appeal.

We first overrule appellant’s contention that the judgment should be reversed because he has been deprived of a statement of facts in question-and-answer form, as requested in his pauper’s affidavit filed in the cause.

The record reflects that notice of appeal was given on March 25,1964.

Soon thereafter, appellant’s counsel contacted the court reporter, M. I. Mondshine, relative to the cost of a statement of facts and, after being apprised of the cost, advised that his client could only pay for the same at the rate of $100 per week. The court reporter agreed to furnish the statement of facts and commence transcribing his notes as soon as the first down payment of $100 was made. The official court reporter was not thereafter paid any money and no further request to furnish the statement of facts was made of him.

On June 23, 1964, and September 17, 1964, motions were filed by appellant to extend the time for filing the statement of facts. Orders entered by the court on such motions extended the time for filing to November 17, 1964.

On November 12, 1964, appellant filed in the cause his pauper’s oath requesting that the court reporter prepare a statement of facts in question-and-answer form. On such date it was so ordered by the court.

Subsequently, motions for extension of time to file the statement of facts were filed by appellant, which motions were granted and orders entered by the court extending the time for filing to July 12, 1965.

On July 12, 1965, a hearing was held by the court relative to the preparation of the statement of facts, at which time it was ascertained that the court reporter’s notes had been lost. It was shown at the hearing that the tenure of the court reporter had terminated on April 15, 1964, and that his notes taken in the case had been lost subsequent to that date. It was further shown that the state had prepared a statement of facts to which appellant’s counsel would not agree and that counsel for appellant declined to prepare a statement of facts.

Thereupon, the trial court announced that the court would prepare a statement of facts — which is the statement of facts now filed in the record.

While appellant was entitled to a statement of facts in question-and-answer form under the provisions of Art. 759a, Vernon’s Ann.C.C.P., upon the filing of a pauper’s oath, it was incumbent upon him to exercise due diligence to procure the same. Murphy v. State, 129 Tex.Cr.R. 623, 91 S.W.2d 738. The delay of nearly eight months in filing the pauper’s oath after giving notice of appeal does not reflect the exercise of diligence. Had the pauper’s oath been filed before the court reporter left office on April 15, 1964, the statement of facts could have been furnished in question-and-answer form. Under the record, a reversal of the conviction is not called for, and the contention is overruled.

The state’s proof shows that appellant was Grand Master of the National King Solomon Lodge, A.F and AM, U. S. A., of Houston, Texas, and also a co-owner of the subordinate Golden Eagle Lodge No. 1. A1 Phipps was employed by appellant, selling memberships in the Golden Eagle Lodge.

O. C. Jones testified that on July 31, 1963, he gave Phipps $85 as the “first payment” for membership in the Golden Eagle Lodge after Phipps had induced him to join that organization. He testified:

“I told him * * * I wanted to be a mason, and that further, I wanted to visit my father’s lodge and the lodges of my friends * * * Phipps replied that not only could I visit these lodges, that I would be welcome in any Masonic Lodge anywhere in the world. Phipps told me that once a person was made a Mason that he could visit any other lodge or transfer his membership to any other lodge.”

On August 13, 1963, initiation ceremonies were conducted for Jones in the law offices of C. C. Divine, after which Jones was given a membership card identifying him as a 33rd Degree Mason. The card was signed by appellant. The next day, August 14, 1963, Jones gave a check for $111.25, payable to National Grand Lodge, in payment on the initiation. Jones further testified that when he attempted to gain admittance into other Masonic Lodges he found that he was not welcome at these lodges and that he then realized he had not been made a Mason and attempted to get his money back, but his request was refused.

Five other witnesses testified that they had been induced to join the Golden Eagle Lodge #1 under circumstances virtually identical to the transaction involving the witness Jones.

The following testimony of A1 Phipps is found in the narrative statement of facts:

“ * * * Neal Hilliard had formed a Golden Eagle Lodge and he got me interested in selling memberships in the Golden Eagle Lodge. He told me to carry a Bible and those people that would be interested, to have them swear on the Bible that they would not tell anyone of their other friends that they were going through the obligations and ceremonies of joining this Golden Eagle Lodge. I never told any of these people the location of Neal Hilliard’s lodge over on Andrews Street and Neal Hilliard told me not to mention this because the- Golden Eagle Lodge was to be a lodge of all white people and the lodge over on Andrews Street, the National King Solomon Lodge at 711 Andrews, was mostly a Negro lodge. I went to a meeting in which C. C. Divine, Roy Dean Berger, Neal Hilliard, William Byrd, Mary Alice Zaid and Max Allen Russell and Alfred Divine were present. * * * The money that was to come in through dues and initiation— it was agreed that it would be split up as follows: the salesmen would get twenty per cent of any membership sold, five per cent would come off of the top to go to the offices of C. C. Divine, and Neal Hilliard was to get the remaining portion. Neal Hilliard was in charge of this meeting — so far as I am concerned, Neal Hil-liard is the Lodge.
«* * *
“When I would get the initial $85 such as the $85 I received from O. C. Jones, I would take it down immediately and get a cashier’s check in exchange for the check given me by the prospective new member and I would take this money to Neal Hilliard. I did this in O. C. Jones’ case. I also took the $111.25 check given to me by O. C. Jones to Neal Hilliard. When I got the money to Neal Hilliard, he would give me my commission immediately. The reason I did this — I had a little larceny in my heart.
« * * * I 80],} thirty to forty members at an average fee of $170.
“Neal Hilliard told me that I am a black man — but you set up a white lodge and it will be recognized all over by white lodges everywhere and you be sure and tell these people that this lodge will be recognized by lodges everywhere.”

Felix Dickson testified that he was Most Worshipful Grand Master of the King Solomon Grand Lodge and that appellant was suspended in 1957 for “unmasonic” conduct and had not been a member after that date. He stated that:

“ * * * All other grand lodges in Texas are clandestine lodges but the lodge that I am affiliated with and the Grand Lodge of Texas, which is a white lodge.
“I am aware that there are many other Negro Grand Lodges within the City of Houston, Texas. All of these lodges are clandestine, the same as Neal Hilliard’s is.”

John H. Crooker, Sr., Houston attorney, testified that he was a Master Mason and had attended the Grand Lodge of Texas for forty-nine years, and that it was the only recognized grand lodge in the state; that he had served as Grand Master of Texas at one time; and also that:

“The National King Solomon Grand Lodge and the Golden Eagle Lodge No. 1 are not recognized as being either a Grand Lodge or a regular lodge or any other kind of lodge by any true Masons. None of these organizations can make a person a Mason. These organizations are not recognized in Masonry and have no power to make a person a Mason regardless of what kind of ceremony that they perform. A person who goes through some kind of ceremony by either of these organizations will not be allowed to visit the meetings in any other Lodge.”

Ralph Coppock, Worshipful Master of the Jack Demolay Lodge and also a Houston attorney, testified similarly and stated that it would be a Masonic offense for a true Mason to be affiliated with the Golden Eagle Lodge or with the National King Solomon Grand Lodge.

William Byrd testified that he had joined the lodge at the inducement of Roy Dean Berger, co-owner with appellant of the Golden Eagle Lodge No. 1, and that he was given a “quick initiation” and a card saying he was a Master Mason, and that he paid $85 for the membership. He thereafter worked as a salesman for appellant, being paid on a forty-per-cent-commission basis for each lodge membership sold. He stated that he was told by appellant to tell prospective members that if they joined they would be entitled to go to any lodge in the world.

Appellant testified that “Masonry is and always has been a business to me.” He denied that he told salesmen selling memberships to tell prospects they would be accepted in any lodge anywhere, stating that he knew better than that. He admitted that Phipps brought him the initiation fees and he cashed the cashier’s checks and gave Phipps his part, but it was his theory that he endorsed the checks as Grand Master of the National King Solomon Grand Lodge and that the money was for the lodge. When asked why cash was used, he answered that the Grand Lodge never had enough money to open a bank account. Appellant testified that he kept no record as to where the money went, because it was supposed to be up to Roy Berger, the co-owner of the lodge, “to keep up with all of this.”

The court, in his charge, instructed the jury on the law of principals and charged the jury that the witness A. L. Phipps was an accomplice, and instructed as to the corroboration necessary to convict upon accomplice testimony.

The issue of appellant’s guilt was submitted to the jury upon the state’s theory of theft by false pretext. Under the court’s instruction, the jury was authorized to convict appellant if they found from the evidence, beyond a reasonable doubt, that A. L. Phipps’, while acting as a principal with appellant, obtained possession of the $111.25, in money, from O. C. Jones by fraudulently representing to the said Jones that by paying said sum of money he would be a member of a regular Masonic Lodge — which membership would entitle him to sit in any Masonic Lodge located anywhere.

We overrule appellant’s contention that the evidence is insufficient to support the judgment of conviction.

Recently, in Cameron v. State, Tex. Cr.App., 401 S.W.2d 809, this court reaffirmed the rule that a conviction for theft by false pretext may be had upon a general indictment for theft.

The fact that the false representations made by Phipps pertained to future happenings did not render the evidence insufficient. It is the rule that false promises or representations as to future happenings by which a person is induced to part with his property may form the basis of the offense of theft by false pretext. 55 Tex.Jur. 2d 294 — 299, Sec. 18; Johnson v. State, 144 Tex.Cr.R. 392, 162 S.W.2d 980.

We also overrule the contention that appellant’s conviction for felony theft cannot be sustained because the proof showed that he was guilty of certain misdemeanor offenses denounced by Articles 581 and 582, Vernon’s Ann.P.C., relating to false statements and unlawful solicitations of membership in fraternal benefit societies. The fact that the evidence adduced may have shown that in the transaction appellant committed other offenses does not prevent his prosecution and conviction for the offense of felony theft, charged in the indictment. Lewis v. State, 171 Tex.Cr.R. 231, 346 S.W. 2d 608; Vick v. State, Tex.Cr.App., 397 S.W.2d 229.

Nor for such reason was the grand jury without authority to return the felony indictment against appellant nor the district court without jurisdiction to try him for the offense charged.

Article 1, section 10, of the Texas Constitution, Vernon’s Ann.St., makes an indictment by the grand jury the only way— except where circumstances not here in point are present — in which a prosecution for felony theft can be originated. The authority of the grand jury is not limited to felonies. Texas Constitution, Article V, Sec. 17. The Harris County Criminal District Court No. 2 has original jurisdiction over all criminal cases of the grade of felony. Article V, sec. 8, Texas Constitution; Articles 54, 52-25, 52-39, 52-158, C.C.P. of 1925.

Appellant’s objection to the court’s charge and his requested charges have been considered and reflect no error. The other contentions have also been considered and do not present error.

The judgment is affirmed.

Opinion approved by the Court.

WOODLEY, J., not participating.


author: DICE, Commissioner. MORRISON, Judge McDONALD, Presiding Judge.

text:
    Teddy Joe ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
    No. 39310.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.

      Charles W. Tessmer, Dallas (On Appeal Only), Frank S. Wright, Dallas (On Appeal Only), for appellant.
    Henry Wade, Dist. Atty., Tom F. Reese, Charles L. Caperton and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the subsequent offense of drunk driving, a felony; the punishment, one year in jail and a fine of $200.

The sufficiency of the evidence to support the conviction is challenged.

It was shown by the state’s testimony that while driving a pickup truck upon a public street and highway in Dallas County, appellant was involved in a collision with another motor vehicle. The collision occurred around 12:40 a. m. on Industrial Boulevard, a six-lane divided highway, when appellant’s vehicle — while traveling north— crossed over into the lanes of traffic for southbound vehicles and collided with an Oldsmobile automobile.

Alfred Shelby, who was traveling north on the highway and witnessed the collision, testified that when he went to appellant’s pickup after the accident he (appellant) was lying on the ground with his feet up in the truck. He stated that at such time appellant groaned like he was hurt. He further stated that he did not see appellant walk or hear him talk, and expressed no opinion as to appellant’s sobriety.

Otto Brown, another witness to the collision who observed appellant at the scene, gave a similar description of his appearance but stated that he could not say that appellant was drunk.

Officer J. H. Martin testified that as the result of a call received at 12:45 a. m., he went to the scene, where he helped put appellant in an ambulance to be carried to Parkland Hospital. Officer Martin testified that when he got near appellant he could smell a strong odor of alcoholic beverages but that he did not talk to appellant and formed no opinion as to his sobriety.

Officer William A. Smith testified that he went to the scene of the accident and from there to Parkland Hospital, where he talked to the appellant, who was on a roller table covered with a sheet. At such time appellant complained of pains in his left leg and arm. Officer Smith testified that appellant was not under arrest and that when he asked him how the accident happened appellant first said there had not been an accident and then said “the reason he had the accident was he couldn’t see because of fog. His windshield wipers didn’t work.” The officer stated that on the night in question there was no fog. He further stated that at the time he talked to appellant at the hospital his speech was slurred and “incoherent in places” and that he was cursing a lot. The officer further stated that appellant’s breath had a strong odor of alcoholic beverage and that he said he had been drinking beer. The officer expressed his opinion that appellant at the time was “very intoxicated.”

Proof was made of the prior misdemean- or conviction alleged in the indictment.

Testifying as a witness in his own behalf, appellant stated that the reason for his driving over into the wrong lane of traffic was that he fell asleep. He stated that he had had nothing to drink and was not intoxicated. He also stated that he was unconscious after the collision until 4 or S o’clock that morning and did not remember seeing any officer and if he did any cursing it was because of pain and agony from a leg injury.

It is insisted that the evidence is insufficient to sustain the conviction because Officer Smith, the only witness to express an opinion that appellant was intoxicated, based his opinion upon facts which were as consistent with injury as with intoxication. Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, and other cases recognizing the rule announced therein are cited in support of his contention.

We do not agree that Vasquez v. State, supra, is here controlling, under the facts. In Vasquez v. State it was undisputed that following an accident the accused was unconscious in the hospital before he was observed by the witness who expressed the opinion that he was intoxicated.

In the instant case there is a dispute in the testimony as to whether appellant was conscious or unconscious after the accident. Appellant swore that he was unconscious, while Officer Smith swore that he was conscious. This fact, alone, distinguishes the • case from Vasquez, supra.

The evidence is sufficient to establish the corpus delicti and support the judgment of conviction.

The judgment is affirmed.

Opinion approved by the Court.

MORRISON, Judge

(dissenting).

I am unable to distinguish this case from the unanimous opinion of this Court in Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, upon which appellant relies. In Vasquez, as in the case at bar, there was evidence that the accused had been drinking, but the only witness who testified that in his opinion appellant was intoxicated, arrived at his opinion from facts which were just as consistent with injury as with intoxication. In both cases there were other witnesses who had an opportunity to observe the appellant, and they were not called. The distinction sought to be made by the majority opinion is without validity.

I further dissent because appellant did not personally join in the stipulation as to the prior conviction.

I respectfully dissent.

ON APPELLANT’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Appellant urges that the majority has failed to distinguish the material facts in this case from those in the case of Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, where a conviction for driving while intoxicated was reversed because of insufficient evidence.

The evidence in Vasquez shows that two witnesses who had been in the company of that defendant prior to his automobile accident, and had had ample opportunity to form an opinion as to whether or not he was intoxicated, refused to testify that he was drunk. The only witness who expressed an opinion that Vasquez was intoxicated based his opinion on the fact that Vasquez smelled of beer and that his conduct at the hospital was irrational. “In Vasquez, we were careful to spell out the description of accused’s conduct which was more indicative of mental derangement than the standard symptoms of intoxication.” Mendoza v. State, 169 Tex.Cr.R. 88, 332 S.W.2d 335, 337. The fact that Vasquez was unconscious when the patrolman went to the hospital to interview him, and apparently remained in that state until almost two hours after the accident, is significant in that it tends to show that Vasquez suffered injuries which would account for this irrational behavior. Moreover, there was testimony that this abnormal behavior continued long after the accident and that appellant’s conduct was still irrational at the time of his trial. Considering this evidence, this Court concluded that the jury could not find, beyond a reasonable doubt, that Vasquez was intoxicated.

We remain convinced that the evidence in this case does not preclude such a finding. Here, witness Brown testified that appellant drove his automobile as if he were drunk, and the record bears out this opinion and does not support appellant’s contention that he fell asleep at the wheel. Officer Martin testified that he noted a strong smell of alcohol when he approached appellant at the scene of the accident, but he did not have sufficient opportunity to observe appellant to form an opinion as to whether he was intoxicated. Officer Smith did have such an opportunity at the hospital, and his testimony of appellant’s slurred speech, strong alcoholic breath, and conduct comport much more strongly with a conclusion that appellant was “very intoxicated” than did the testimony in Vasquez. Completely absent here is evidence that, appellant’s irrational behavior persisted past a reasonable “sobering-up” period.

Appellant also urges that this Court erroneously affirmed his conviction because the state failed to prove that he had been previously convicted of the misdemeanor offense of driving while intoxicated, as alleged in the indictment.

At the beginning of the trial, the following transpired:

(COUNSEL FOR STATE): “This is stipulated. In other words, that means both sides have agreed to this. This is in evidence just as if we brought the witnesses in here to testify to it and prove it up.”
“It is hereby agreed and stipulated by and between Counsel for the Defendant and Counsel for the State and by the Defendant himself in open court that if the Clerk of the County Criminal Court of Dallas County, Texas were present in Court and sworn as a witness, she would testify that in a case on the docket of said Court No. 72479 on the 21st day of December, 1962 in the County Criminal Court, in Dallas County, Texas and the style of the case, State of Texas versus Teddy Joe Alexander, she would testify that this is one and the same Teddy Joe Alexander and was convicted in that Court on the 21st day of December, 1962 of the misdemeanor offense of driving and operating a motor vehicle while intoxicated and under the influence of intoxicating liquor. She would further testify that the Court then and there had jurisdiction and this conviction occurred and the judgment thereon became final prior to the first day of February, 1964 which is the date of the offense alleged in this indictment.”
(THE COURT): “Is that agreed to by?”
(COUNSEL FOR APPELLANT) s “That is agreed to by.”
(THE COURT): “All right, all sides, that is the facts so, it will be unnecessary for any further proof of that.”

Trial judge and prosecutor were careful to explain, in layman’s terms, the effect the stipulation would have on the conduct of the trial. The stipulation dictated by the prosecutor specified that both counsel and appellant were parties to the agreement. While appellant did not personally voice his assent, but remained silent throughout this colloquy, we have concluded that this stipulation by appellant’s counsel, and appellant’s acquiescence thereto, are sufficient to obviate the necessity for further proof of the prior conviction. Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873. This case is unlike Brookhart v. Janis, 86 S.Ct. 1245, April 18, 1966, where it was held that counsel does not have the power to waive his client’s constitutional right to have a trial in which he can confront and cross-examine the witnesses against him, because, in that case, the waiver by counsel was found to be contrary to the desires of his client as expressed in open court.

Appellant’s motion for rehearing is overruled.


author: McDONALD, Presiding Judge.

text:
    John GIBSON et al., Appellants, v. The STATE of Texas, Appellee.
    No. 39286.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 11, 1966.
    Cox & Hurt, Plainview, for appellants.
    William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is a consolidation of four bond forfeiture proceedings wherein the sureties alone appeal.

The record shows that appellants, as sureties, entered into appearance bonds after four indictments were presented charging the principal herein with the commission of felony offenses. The first cause was set for trial on October 27, 1964, at which time the principal failed to appear. He also failed to make an appearance on May 26, 1965, when the remaining causes were called for trial. Judgments nisi were entered against the sureties, and the record shows that on September 2, 1965, prior to these judgments becoming final, the principal returned to custody. Appellant’s prayer for a remittitur in whole or in part was refused by the trial court, who ordered a total forfeiture of $11,000 on the four bonds.

On appeal, the sureties contend that Article 439, Vernon’s Ann.C.C.P., now Article 22.16, Code of Criminal Procedure, 1965, compels a remittitur of all or part of this forfeiture because of the mitigating circumstances shown in the statement of facts, and they seek reversal of the trial courts’ judgment, or in the alternative, that this court overrule the trial court’s refusal to grant a remittitur.

A review of the statement of facts discloses that the sureties went to great length in attempting to locate the principal in order to return him to custody and trial. Although they were unable to produce itemized accounting of expenses incurred in their efforts to secure the return of the principal, Gibson, appellant’s estimation was that between $3,000 and $4,000 was spent by the sureties for telephone calls, correspondence, wanted circulars, photographs, and fees to detective agencies and individual investigators. $318 in expenses incurred by the County Sheriff’s Office was reimbursed by the sureties. The sheriff testified that he knew nothing the sureties could have done to effect the re-arrest of the principal that they did not do. It is this diligence in their efforts to return the principal for trial which appellants contend dictates that this forfeiture should be remitted.

Appellant does not deny that the principal was in court on October 26, 1964, and was aware that his cause was set for trial on the following day; that he left his residence and took all his possessions with him and did not appear when his case was called, or when any of his other three cases were called; that there was evidence that he was at one time in San Francisco, at another time in Pennsylvania, where he was under arrest for a while; that he continued his flight to Louisiana after being released on bond in Pennsylvania; and that only after avoiding apprehension for about ten months did he turn himself in to Deaf Smith County officers.

Article 439, supra, provides:

“If, before final judgment is entered against the bail, the principal appear or be arrested and lodged in jail of the proper county, the court may, at its dis-cretions remit the whole or part of the sum specified in the bond or recognizance.” (Emphasis added)

Appellants rely upon Johnson v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574; Ricard v. State, 171 Tex.Cr.R. 456, 350 S.W.2d 938; and Williams v. State, 159 Tex.Cr.R. 443, 265 S.W.2d 92, to support their contention that the trial court erred in failing to grant a remittitur as authorized by this statute.

In Johnson and Ricard, the trial judge was laboring under the impression that he had not authority or discretion to reduce the amount of forfeiture. In a concurring opinion in Ricard, this writer pointed out that discretionary power is vested in the trial court and his failure to exercise such power — that is, his failure to even consider the matter of a remittitur and make a decision one way or the other — would be an abuse of discretion susceptible to remedy by this court. In concurring in the affirmance of that judgment conditioned upon partial remittitur by the state, it was this member of the court’s view that:

“By the majority opinion in this case we are giving to the trial court an opportunity to do that which he thought he had no authority to do, or, if he disagrees with us, then he may try the lawsuit again.
“7 do not doubt the power of the trial court to decline to remit, but I think the trial court clearly demonstrated by his statements that he did not consider he possessed any authority to remit in this case.” Ricard, supra. (Emphasis added)

The record in Williams v. State, 159 Tex. Cr.R. 443, 265 S.W.2d 92, discloses that the possibility of a remittitur was never brought in issue in the trial court, and there is no indication that the trial court exercised any discretion -on this point. The defendants in their answer to the judgment nisi made no prayer for a remittitur other than the general prayer “for such other and further relief, special and general, as they may be entitled to in the premises.” The defendants also moved for an instructed verdict or, alternatively, dismissal of the jury and judgment rendered that the state take nothing. Again, there was no request for a remittitur. The same is true of their motion for new trial. In short, there is no indication that the trial judge was ever called upon to grant a remittitur or that he exercised discretion on that point, which brings that case in point with the Ricard case. The facts in that case show that the principal absented himself for only about 38 hours, during a weekend, and that no expense was incurred in his reapprehension. In addition, the record shows that the principal, who was one of the appellants, had been held in contempt for his absence and given the maximum penalty of three days in jail as well as a fine of $100. He had also been tried for violation of the liquor law, the charge which led to the making of the bond forfeited, and had received 90 days in jail and a $150 fine. This Court held that:

“Under the circumstances here present, we are of the opinion that the court should have exercised his discretion and remitted a part of the sum specified in the bond herein sued upon.” 265 S.W.2d 92, 95.

If that case stands for the proposition, which I do not concede it does, that this Court will review de novo the record of a bond forfeiture proceeding and determine whether or not a remittitur should be awarded, after the trial court has found that the principal willfully absented himself, and has decided that the circumstances do not merit remittitur, then, that case stands alone in so holding.

The state cites Johnson v. State, 68 Tex.Cr.R. 51, 150 S.W. 890, where this Court stated:

“This discretion (to grant remittitur) is confided to the trial judge, and not to this court; and it would only be in those instances where the record disclosed he had abused the discretion confided in him would we be authorized to disturb the judgment. If Johnson willfully and intentionally absented himself to prevent a trial of his case at that term of the court, and the court so found as a fact, making a forfeiture of the full amount of the bond final would not be an abuse of his discretion.” 150 S.W. 890, 891.

In Williamson v. State, 68 Tex.Cr.R. 53, 150 S.W. 892, where-the same question was considered, the following was stated:

“It is no defense in a case of this kind for the sureties to show that they were not at fault and had nothing to do with the appellant purposely and willfully escaping and not complying with the provisions of the bond. If that were true, bail bonds would be a farce, and none of them could ever be collected, and an accused person could, from term to term, make and forfeit his bond and prevent a trial, and his sureties would incur no liability. It is true the law does not seek to punish the sureties. But when they go on such bonds it is contemplated that if the accused does not comply therewith, and purposefully and willfully forfeits the same, that they shall pay the amount, unless, in the discretion of the lower court, a part or all of it is remitted.” 150 S.W. 892, 893.

Article 439 authorized the trial judge, at his discretion, to remit forfeitures in cases which merit such action, such as where the accused fails to appear due to a mistake, or unavoidable delay, or any other situation where forfeiture if full would, in the trial judge’s opinion, be inequitable.

In the case at bar, the trial judge heard the evidence; he saw the witnesses; he is aware of the expense incurred by the court and county as a result of the principal’s failure to appear; he knows to what extent the jury and court were inconvenienced by the principal’s unauthorized absence; and he knows to what extent his trial docket has been disrupted by the changes necessitated by the principal’s failure to appear for trial. He has exercised his discretion and has declined to grant any remittance, which is within his power, and this Court will not overturn his decision.

Counsel for the sureties argues that, as a matter of public policy, remittiturs should be encouraged in cases coming under the terms of Article 439, because a refusal to grant the same would deprive the state of valuable aid which the bondsmen might give the officers in their efforts to apprehend principals who “jump bail.” We are not overly concerned with this possibility. Insuring that the principal appear before the court at the time designated is the bondsmen’s “stock in trade” and, unless he is able to perform this service consistently, he will not long be in business. It therefore behooves bondsmen, as sound business practice, to impress upon the court and the principal alike that “bail jumpers” for whom they are surety will inevitably be caught and returned to trial. The realization that their bond will be forfeited in the event the principal fails to appear might have the effect of making bondsmen somewhat more selective as to which persons they will act as surety, and it might increase the surveillance exercised by the surety over the principal while he is at large on bond, but it should not lessen the ardor with which the surety pursues the principal who fails to appear for his trial.

Appellants contracted with the state to pay a total of $11,000 in the event Gibson, the principal, failed to appear at the times set for his trials. For entering into this contract they received a fee commensurate with the risk they knew they were assuming. Generally speaking, sureties are in the business of making bond, they are acquainted with morals and characteristics of their clientele, they are aware of the possible consequences of the surety-principal relationship, and are not inexperienced in the applicable law. People far less knowledgeable of the law are consistently held to the terms of the contracts into which they choose to enter. Gibson did not answer the docket call of any of his four causes, and we see no abuse of discretion in the trial court’s decision that the bond be forfeited.

The judgment is affirmed.

MORRISON, J., dissents.


author: MORRISON, Judge.

text:
    Howard BIRCHFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 39019.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 11, 1966.

      John D. Rienstra, Jr., Beaumont, for appellant.
    W. C. Lindsay, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Our prior opinions are withdrawn and the following substituted therefor.

The conviction is under the Securities Act Art. 581-29 (C), Vernon’s Ann. Civ. St.: the punishment, two years.

The State’s evidence reflects that appellant, after having been removed as president of the corporation in question, sold stock in such corporation to one Ragsdale representing that he was president, and that the money which Ragsdale paid him would be used to get the mining venture into operation, but that such funds were not paid to the corporation. Appellant did not testify or offer any evidence in his own behalf.

The indictment contained three counts and at the conclusion of the testimony the State elected to prosecute upon the third count, which was submitted to the jury in the court’s charge.

In the third count it was charged that appellant did unlawfully and fraudulently sell to Kenton Ragsdale 1,000 shares of common stock of Pacific Fluoride Company, Inc., and did “then and there commit fraud upon said Kenton Ragsdale by willfully, fraudulently and knowingly representing that the said Howard Birchfield was president of the said Pacific Fluoride Company, Inc., and that the proceeds from the sale of said stock would be used for the benefit of the said Pacific Fluoride Company, Inc., and that the said Howard Birch-field then and there knew that said representations were false and the said Howard Birchfield made said false representations for the purpose of inducing the said Kenton Ragsdale to purchase said security and the said false representations were misrepresentations of material fact.”

In order to support such count it became incumbent upon the State to prove the falsity of these alleged misrepresentations. In order to establish the first, the State called an officer of the corporation who began to testify as to the contents of the minutes. At this juncture appellant’s counsel objected on the grounds that the minutes themselves would be the best evidence. The State then offered the minutes of the corporation showing that a stockholders’ meeting was called, that it was held and that appellant was discharged as president prior to the date charged in the indictment. When the instruments were offered, appellant made the following objection:

“ * * * The defendant has no objection to the Waiver of Notice of the Original Meeting of the Stockholders and Incorporators held March 8, 1963, nor is there any objection to the Waiver of Notice of a meeting to be held March 8, 1963, nor the Minutes of such meeting. However, the defendant would object to the portion of State’s Exhibit Number Eleven which is entitled, ‘Request for Special Meeting of Board of Directors’, to be held on May 27, 1963, for the reason that such request contains countless self-serving declarations, conclusions of law and of fact, and constitute hearsay. The same objection as far as the Waiver of Notice of such Special Meeting to be held May 29. Also such contents are highly inflammatory. The defendant further objects to the portion of State’s Exhibit Number Eleven, which is the Minutes of a Meeting of Board of Directors of this company, held May 29, 1963, for the reason such Minutes contain countless conclusions of law and of fact — highly inflammatory and self-serving matters and constitute hearsay.”

State’s Exhibit Eleven was a bound volume of 24 unnumbered pages wherein is found the corporation charter and waivers of notice and the minutes of the stockholders’ meetings. As will be seen from the above objections, they were leveled at the “Request for Special Meeting of Board of Directors”, the “Waiver of Notice of Such Special Meeting”, and the “Minutes of the Meeting of Board of Directors”. Parts of each instrument were admissible and necessary in order to establish the State’s case. Clearly an objection to the whole without pointing out the objectionable portions was insufficient to apprise the trial court of the portion of the document counsel considered objectionable. Galan v. State, 164 Tex.Cr.R. 521, 301 S.W.2d 141 and Huff v. State, 145 Tex.Cr.R. 82, 165 S.W.2d 717. '

Appellant’s second contention is that the court erred in failing to charge the jury to acquit if they found that appellant came under the exception contained in Paragraph I of Section 5 of Article 581 V.A.C.S. Clearly, appellant’s case does not come within such exception (which became effective after the date charged in the indictment) because there is ample evidence of public solicitation. The witness Zonker testified that she wrote letters for appellant to certain companies listed in the Houston telephone book in which appellant stated that stock in Pacific Fluoride was available at one dollar a share. The witness Simpson testified that he introduced appellant to numerous acquaintances of his in Beaumont - and that appellant offered stock for sale to them and sold stock to a number of named individuals. There was the further evidence of the brochures which were typed in appellant’s Houston office and given by appellant to each person he contacted relative to the sale of stock. Tumbleweed Bowling Corporation v. Matise, Tex.Civ.App., 388 S.W.2d 479, cites with approval Securities and Exchange Commission v. Ralston Purina Co., 346 U.S. 119, 73 S.Ct. 981, 97 L.Ed. 1494, as holding that public solicitation need not be open to the whole world. Article 581-22, subd. E, V.A.C.S. is no solace to appellant, because we hold that the conduct enunciated above constituted public solicitation.

In our original opinion we held the indictment and the charge defective because they failed to allege and instruct the jury that the injured party relied upon the fraudulent representations made by appellant. In support of such holding we cited several civil cases which hold that one of the essential elements of fraud is that the injured party relied upon the fraudulent representation. We have now concluded that we were in error.

Article 581-29, V.A.C.S. is a penal statute which provides as a basis for this prosecution that “Any person who shall: * * * C. Engaged in any fraud or fraudulent practice in the sale, offering for sale or delivery of, invitation of offers, or dealing in any other manner in any security or securities shall be deemed guilty of a felony * *

Appellant relies upon a portion of the definition of fraud and fraudulent practice contained in Article 581-4, subd. F, V.A.C.S.

Since reliance upon the fraudulent representation would not be an essential element of an offer for sale, or invitation of offers, or dealing in any other manner in any security, we cannot bring ourselves to conclude that it was the intention of the Legislature to require one quantum of proof in cases where sales were actually made and another quantum of proof where an offer to sell was made. This is especially true where the several different ways a violation of the statute may be committed are embodied in the same paragraph of the statute. Since reliance need not be proven, it need not be alleged.

Appellant next contends that the court erred in permitting the witness Zonker to testify that Mrs. Jenson, who worked in appellant’s office, was also known as Jan Birchfield. The answer of this witness about appellant’s living with her was withdrawn from the jury’s consideration by the prudent trial court. For all this record reveals this might have been appellant’s wife who was sometimes referred to by her former married name. At any rate, we further find that elsewhere in the record the woman in question was known as Mrs. Howard Birchfield, and no objection was made to such testimony.

Cabiness v. State, 66 Tex.Cr.R. 409, 146 S.W. 934, disposes of appellant’s contention as to the disjunctive submission in the court’s charge.

Appellant’s last contention is that the evidence was insufficient to prove that appellant knew on the day charged in the indictment that he was no longer president of the company in question. An examination of the testimony of the witness Shile reveals that appellant met with a number of the stockholders on June 8, 1963, prior to the commission of this offense, at which time he told appellant that he was no longer president. He further testified that he did not see him again or talk to him about the fact that appellant had been removed as president at the May 29th stockholders' meeting prior to rceiving a letter postmarked after the commission of the offense in which appellant admits that Shile had told him that he was no longer president. These facts together with evidence that appellant moved to Houston and opened an office (at the other end of the State from Amarillo where the corporation maintained its records) shortly after this meeting on June 8, would authorize the jury to conclude that he knew he was no longer president.

The record reveals that appellant has been in confinement in the Jefferson County jail since September 12, 1964. The trial court has the authority under Article 42.03, Vernon’s Ann.C.C.P. to give him credit for such time on his sentence.

The State’s motion for rehearing is granted; the judgment of reversal is set aside and the judgment is now affirmed.