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

text:
    HILL et al. v. ELLSWORTH et al.
    No. 1412-5607.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.

      Knollenberg & Cameron and S. J. Dodson, lall of El Paso, for plaintiffs in error.
    E. W. Earl, of El Paso, for defendants in error.
   HARVEY, P. J.

On February 23, 1927, C. S. Hill sold to G. Q. Ellsworth a tract of 341 acres of land in Culberson county. A general warranty deed to the land was executed by Hill to Ellsworth, and the latter took possession under the deed. Ten dollars of the purchase price was paid in cash, and Ellsworth executed his promissory notes for the balance, which amounted to $3,400. To secure payment of the notes, the vendor’s lien was expressly reserved in the deed. The deed provided that “the said C. S. Hill retains one sixteenth (½6) of R oil and mineral rights herein on said land.” This suit was brought by Hill to recover on said purchase-money notes and to foreclose the vendor’s lien. Ellsworth answered, and, in paragraph 3 of ihis answer, set out in' full the deed above mentioned, and followed same with these allegations:

“That by the terms of said deed it was agreed 'and understood that the plaintiff did. grant, sell and convey to this defendant said land, together with fifteen-sixteenths of the oil and mineral rights therein, and defendant in buying said land relied solely upon the agreement and representations set forth in said deed as being true and believed that same conveyed to him fifteen-sixteenths of the oil and mineral rights in said land, as well as the surface rights, but otherwise made no investigation of the title to said land; ■that the agreement set forth in said deed that same was conveying fifteen-sixteenths of the oil rights in said land was a material part of the contract, for the reason that defendant was buying said land for oil purposes; and defendant alleges that so believing and relying upon said agreements and representations made by the plaintiff in said deed, he executed said notes aggregating $3400.00 herein sued on, and received said deed, all of which he would not have done but for said agreements and representations, and the fact that said deed by its terms conveyed and defendant believed he was getting fifteen-sixteenths of the oil and gas as well as other minerals in said land, which were a part of the consideration of said notes.
“But defendant alleges that in the year 1908 said land was unsold public free school land of the State of Texas and. was classified by the Commissioner of the General Land Office as mineral and grazing land, and as such was sold by the State of Texas to one J. P. Christian, on or about December 26, 1908, and in making such sale, under the general laws of the State of Texas reserved and retained all of the oil and minerals in said land, and the purchaser received no interest therein; that on or about September 19, 1914, said J. P. Christian conveyed said land to C. H. Richards, by general warranty deed, and in like manner said C. H. Richards conveyed said land to plaintiff, C. S. Hill, on October 25, 1916. That by said deed from plaintiff to defendant of February 23, 1927, hereinbefore described, no part of the oil and mineral rights in said land were acquired by this defendant from plaintiff, but in fact that only the surface rights passed thereby on account of the prior reservations made by the State by general laws that said land, by reason of the general laws of the State, is open to locations by the public for all minerals in said land, except as to the oil and ga^ therein, and that as to the oil and gas in said land defendant has no rights of ownership therein, except that under the so-called Relinquishment Act of 1919 defendant, as owner of the surface, has the right to sell or lease the oil and gas in said land, as agent for the State of Texas, but not as owner, and as and when so sold or leased he will be required to pay to the State of Texas one-half of any bonus or cash payment received and one-half of all rentals or royalties received or provided for; that the State has and is claiming a first and prior claim and liens for the sums due it; that defendant is not allowed by the law to develop the oil and gas in the land himself, but can only sell or lease the same in the manner above stated. That defendant did not become aware of the status of the title to the oil and gas rights in said land until after the decision of the Supreme Court of Texas in the case of Greene v. Robison, Commissioner, imported in 117 Tex. 516, 8 S.W.(2d) page 655, up to which time he believed that said conveyance to him from plaintiff was good and carried fifteen-sixteenths of the oil and mineral rights in said land, which decision construed the said Relinquishment Act, and as construed by said Court in said ease, defendant has acquired no estate in- the oil and gas in said land, and said Court interpreted said Act to fix a minimum price of ten cents per acre per annum as rental for a sale or lease of the oil and gas, and the value of one-sixteenth of the gross production free of cost to the State, for which the State is willing to sell the oil and gas, and the agent (the land owner) is authorized to secure the highest price obtainable for the benefit of the fund to which the land belongs, like amounts received by the State to be paid by the purchaser to the owner of the soil. If a bonus is paid, if a larger royalty or other amounts are contracted for, the Statei and the owner of the soil received equally in like amounts.
“Defendant alleges that by reason of the failure or want ¡of title to said oil and gas rights in said land, as above set out, said land was ¡on February 23, 1927, has ever since been, and is now, of less value than the said agreed purchase price, and that defendant .has been damaged in the sum of the said notes, hei’ein sued on.
“Defendant further alleges that by reason ¡of the facts stated above said notes so given for said land were given in part consideration for public domain of the State, that the title conveyed or property conveyed has failed or is Wanting in whole or in part, and that said notes are without consideration and void, or in the alternative are partly without consideration and void; that this defendant has rescinded said contract; that the plaintiff has failed to keep, but has broken, the covenants, agreements and warranties of said deed, to defendant’s damage; that defendant has heretofore tendered and now tenders to plaintiff all of defendant’s rights, title and interest in said land, being all that he ¡acquired from plaintiff, a deed thereto, and possession thereof, said land being vacant and unimproved, never having produced any income to this defendant, but plaintiff has refused to rescind said contract and to cancel said notes, 'and to receive said deed.
“Wherefore, defendant prays that plaintiff take nothing by this suit; that said notes be cancelled and plaintiff be reinvested with the title to said land, and the deed ¡of trust lien, securing same, on property in El Paso County, Texas, described in plaintiff’s petition, be canceled and the cloud on the title to. said property cast by said deed of trust be removed ; and in the alternative that the amount of said notes be offset or reduced to the extent of defendant’s said damages; for costs of suit, and all other and further relief, in law or in equity, that he may be justly entitled to, as he will ever pray.”

The trial court sustained a general exception to said paragraph of the answer. Judgment was rendered in favor of Hill for the amount of the notes and for foreclosure. The case was appealed. The only complaint of error involved in the appeal relates to the action of the trial court in sustaining the general exception to paragraph 3 of the answer of Ellsworth. The Court of Civil Appeals [21 S.W.(2d) 741] reversed the judgment of the trial court, and remanded the case. Both parties were granted a writ of error.

It appears from the 'above allegations of the answer that Ellsworth, in buying the land, relied on the “representations and agreements contained in said deed.” But since the deed contains no representations respecting title, we take it that no issue of fraud, on the part of Hill, is presented; nor is it thought that the issue of mistake, such as calls for the cancellation of the notes, is raised. So these well-recognized grounds of equity jurisdiction do not ¡enter into the discussion.

According.to the allegations of this paragraph of the answer, there is a total failure of title to' the mineral estate in the land conveyed by the deed. Title to the mineral estate is sho wn to be in the state; and to this extent the consideration for the purchase money notes failed. Lamb v. James, 87 Tex. 485, 29 S. W. 647; Rayner Cattle Co. v. Bedford, 91 Tex. 642, 44 S. W. 410, 45 S. W. 554. This issue of partial failure of the consideration for the notes is sufficiently presented; but the facts alleged do not show an equitable ground for cancellation of all the notes. Although the vendor’s lien was expressly reserved in the deed, thereby rendering execu-tory for some purposes the conveyance evidenced by the deed, the conveyance, for the purpose of determining the right of cancellation of the notes, as asserted by Ellsworth, must be treated as executed and not execu-tory. Ogburn v. Whitlow, 80 Tex. 239, 15 S. W. 807. The question, then, comes simply to this: Does the total failure of title to a material part ¡of the land purchased under an executed conveyance, which is accompanied by the vendor’s warranty of title, the vendee being ignorant, at the time of the purchase, of the deficiency of title in the respect mentioned, afford the vendee adequate ground, in the absence of fraud or mistake, for having all the purchase-money notes canceled? Hue regard for contract rights requires a negative answer to the question. Under such a state of facts, a court of equity would not be justified in canceling, in so far as they are valid, the purchase-money obligations of ¡the vendee. Justice does not require that the vendee be relieved entirely of his promise to pay.

By the conveyance for which the notes sued on were given, Ellsworth acquired title to the land except as to the mineral estate held by the state. The conveyance operated also to transfer to him certain statutory rights and privileges which pertained to ownership of the soil. That is to say, he became privileged as owner of the soil, to lease the l'and for ¡oil and gas purposes, as agent for the state, and to receive from the lessee, for his own use, one-sixteenth of the ¡oil and gas produced, as well as a share of the rentals accruing under the lease, provided such rentals exceeded a prescribed amount. Greene v. Robison, 117 Tex. 516, 8 S.W.(2d) 655. Yet notwithstanding all this, Ellsworth was entitled under his pleading, in the absence of special exception, to prove the necessary facts entitling him to an abatement of the gurchase-money notes to such extent as to confine Hill’s right of recovery on the notes to such part of the agreed consideration, for the conveyance, with interest, as was made up of the value, at the time of the conveyance, of the land (exclusive of the mineral estate) and the incidental rights and privileges, respecting the mineral estate, which passed under the deed. Williams v. Finley, 99 Tex. 468, 90 S. W. 1087.

For the reasons shown, the trial court erroneously sustained the general exception to paragraph three of Ellsworth’s answer.

We recommend, that the judgment of the Court of Civil Appeals, reversing the judgment of the trial court, he affirmed.

CURETON, C. J.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    TUNNELL et ux. v. REEVES et ux.
    No. 1410-5603.
    Commission of Appeals of Texas, Section A.
    March 4, 1931.
    Maury Hughes and T. F. Monroe, both of Dallas, and G. O. Crisp, of Kaufman, for plaintiffs in error.
    Horace O. Williams and Autry Norton, both of Dallas, for defendants in error.
   SHARP, J.

Mrs. Clara Reeves, joined by her husband, J. A. Reeves, brought this cause by writ of habeas corpus to recover possession of her minor child by her former husband, from H. H. Tunnell and wife. The case was tried before the court without a jury. The trial court awarded the care and custody of the child to H. H. Tunnell and wife. An appeal was taken by Mrs. Clara Reeves and husband to the Court of Civil Appeals for the Fifth Supreme Judicial District, and that court reversed the judgment of the trial court and rendered judgment that the minor child be awarded to its mother, Mrs. Clara Reeves. 21 S.W.(2d) 365. The Supreme Court granted the writ of error.

H. H. Tunnell and wife, plaintiffs in error here, contend that the Court of Civil Appeals exceeded its authority in overturning the findings of fact by the trial court and in rendering final judgment. We think this assignment must be sustained.

The trial court filed the following findings of fact and conclusions of law:

“I find that Howard Arthur Hicks is a juvenile five years of age and is at the present time in the custody of his aunt and uncle, I-I. I-I. Tunnell and wife, Lillian Tunnell; that said child has been in their custody about three years; that the mother of said child, now Mrs. Clara Reeves, turned said child over to I-I. H. Tunnell and his wife, for the purpose of rearing and educating him and keeping him as their own; that at the time said child was turned over to them that said child was in the State of Oklahoma with a relative, and that at the reguest of the mother of said child, who was a widow, H. H. Tunnell and his wife went to Oklahoma and obtained said child who was at that time just a small infant.
“I further find that it was the understanding and agreement by and between the mother and guardian of said child and the aunt and uncle that said child should be adopted by them if they so chose, and that said child was never again to be returned to its mother; that in pursuance of this agreement, contract and understanding, H. ⅞ Tunnell and his wife took said child t to their home at Crandall, Texas, and there have cared for him as their own. In this connection, it is the finding of the court that I-I. H. Tunnell, the uncle of said child, and his wife, are upstanding and outstanding people in that community; that H. H. Tunnell is a farmer and owns the Chevrolet agency in said town; that he is a man of some means and has an income of between 36,000.00 and 310,000.00 a year. That H. H. Tunnell and his wife have no children other than this child, Howard Arthur Hicks, the child in controversy.
“It is the finding of the court that said child has had every care and is now being reared in a Christian atmosphere and in wholesome surroundings, and that H. H. Tun-nell and his wife are the proper and fit persons to have the care, custody and control and education of said child. In this connection, I further find that the mother Mrs. Clara Reeves, has recently married a man by the name of J. A. Reeves; that J. A. Reeves was a widower and that he had three children by his first wife, and that Mrs. Clara Reeves, the mother of said child, has three other children of tender age; that these six children, — that is, the three children of Mr. Reeves and the three children of Mrs. Reeves, are living, in a four room house in Dallas; that J. A. Reeves makes only a small salary and that he has no other income save and except that of his employment.
“I find that Mrs. Clara Reeves has never made any demand of any kind for the return of-her child until about three weeks before the filing of this suit; that during the time that said child has been with H. H. Tunnell and his wife they have brought the child to visit his mother at various 'times and on every occasion that the mother has reguested to see the child.
“It is the finding of the court that shortly before the marriage of Mr. and Mrs. J. A. Reeves, that is, on or about the 1st day of January, 1929, that Mrs. Reeves threatened to place all of her children in an orphan’s home so that she could remarry.
“It is the further finding of the court that the said Mrs. Clara Reeves, "the mother of this child, lias on various occasions when said child has visited her been very harsh and severe with said child, and that she has chastized said child severely by Striking him unnecessarily, and that by acts and conduct on the part of the mother of said child she has rendered herself unfit in a degree to have the custody, care and control of said child.
“I find that said child is healthy and happy in his present surroundings, and that no person has suffered by virtue of said child being in the custody of H. H. Tunnell and his wife.
“Conclusions of Law.
“I conclude as a matter of law that H. H. Tunnell and his wife are the proper and fit persons to have the care and custody and control of the child, Howard Arthur Hicks, and that J. A. Reeves and his wife are not the proper and fit persons to have the care, custody and control of said child. And, further, it is the finding of the court that the conduct on the part of the mother of said child by surrendering said child over to H. H. Tunnell and wife is equivalent to abandonment, and that new relations and conditions have arisen which would make it manifestly unjust to the child to break this new relationship and restore him to his mother and step-father.
“I further conclude that it is for the best interest of said child that he remain in the custody of H. H. Tunnell and his wife.”

The Court of Civil Appeals in its opinion held in effect that there was no evidence to warrant the trial court in making the following findings of fact and conclusions of law:

(a) “That the said Mrs. Clara Reeves, mother of this child, has on various occasions, when said child visited her, been very harsh and severe with said child.”
(b) “That by acts and conduct on the part of the mother of said child she has rendered herself unfit in a degree to have the care and control of said child.”
(c) “That J. A. Reeves and his wife are not the proper and fit persons to have the custody, care and control of said child.
(d) “That the conduct on the part of the mother of said child by surrendering said child over to H. H. Tunnell and his wife is equivalent to his abandonment.”

The Court of Civil Appeals further finds as to the other finding of fact by the trial judge that the evidence is sufficient to support same.

As we construe the opinion of the O.ourt of Civil Appeals it is in effect held that there is no evidence or facts to support the finding of the trial judge, and reversed and rendered the ease, which holding gives the Supreme Court power to review the evidence. Marshburn v. Stewart, 113 Tex. 518, 254 S. W. 942, 260 S. W. 565; Tweed v. Western Union Tel. Co., 107 Tex. 247, 255, 166 S. W. 696, 177 S. W. 957; Beck v. Texas Co., 105 Tex. 303, 148 S. W. 295.

We have carefully considered all the evidence introduced in the trial court, and in our opinion it tends to support the findings made by the trial court. The trial judge after seeing the witnesses and hearing their evidence hold that the mother of the minor child on various occasions had been very harsh and severe with the child and that by her acts and conduct she has rendered herself unfit in a degree to have the care and control of the ^child, and further found that J. A. Reeves and his wife are not the proper and fit persons to have the custody, care, and control of the child; and that it is to the best interest of the child that it remain in the custody of H. H. Tunnell and wife.

In view of the findings made by the triál judge above copied, the Court of Civil Appeals' was not authorized to overturn the findings of fact and render.final judgment to the contrary, if there was any evidence in the record sustaining the finding by the trial court. Patrick v. Smith, 90 Tex. 267, 38 S. W. 17; Houston & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Choate v. S. A. & A. P. Ry. Co., 91 Tex. 406, 44 S. W. 69.

The rule is clearly stated by the Supreme Court by Judge Brown in Houston & T. C. R. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415, 417, as follows: “In the exercise of its appellate jurisdiction, a court of civil appeals may draw from the evidence conclusions of fact different from those arrived at by the jury or judge, and it may reverse the judgment of the lower court, and remand the cause, for the reason that the verdict and judgment are against the weight of the evidence. But the determination’ of questions of fact as the basis of a final judgment involves the exercise of original jurisdiction which has not been conferred upon the courts of civil appeals.”

The Court of Civil Appeals, in support of its opinion, cites the case of State v. Deaton, 93 Tex. 243, 54 S. W. 901, 902. An analysis of the facts in the Deaton Case, as compared with the facts in this case, will, in our opinion, show a clear distinction. The findings made by the trial court in the Deaton Case are, in our judgment, unlike the findings made by the trial court in this case. Judge Brown in the Deaton Case says: “Under the facts found by the trial court, there is no question as to the moral or other qualifications of the plaintiff for the discharge of her parental duties to the child, Austin Dillard; but the trial court, upon the facts, expressed the conclusion ‘that' the interest and welfare of the child, Austin Dillard, will be as well, if not better, subserved by remaining with the respondent and his wife, who have adopted it as their own, than if his possession and custody were given to his mother, the applicant herein.’ ”

The trial judge in this case,, as heretofore stated, found that the mother of the child had been harsh and severe with the child, and, among other things, found that she had rendered herself unfit, in a degree, to have the care of the child, and further found that J. A. Reeves and his wife are not the proper and fit persons to have the custody, care, and control of said child. The trial judge did not rest his findings there, but found that it is to the best interest of the child that it remain in the custody of H. H. Tunnell and wife. We do not think the opinion in the Deaton Case is authority to support the opinion of the Court of Civil Appeals in this case.

The Court of Civil Appeals further holds that the disqualification of Mrs. Clara Reeves for the proper discharge of her duties, not having been put in issue by the pleadings, the trial court erred in awarding the custody, care, and control of the minor child to H. H. Tunnell and wife, and, as a matter of law, should have made that .award in favor of Mrs. Clara Reeves, and by reason thereof reversed the judgment of the trial court and rendered judgment awarding the child to Mrs. Reeves.

As shown by the record this is a habeas corpus proceedings instituted by Mrs. Clara Reeves and husband against H. H. Tunnell and wife for the custody of her minor child. The paramount question for the trial judge to decide was: Under all the circumstances how could the best interest of the child be promoted and protected? In laying down well-established. rules as a guidance for the trial court, this question has been ably and fully discussed by our Supreme Court in many cases. Some of the most noted decisions being as follows: Legate v. Legate, 87 Tex. 248, 28 S. W. 281, 282; State v. Deaton, 93 Tex. 243, 54 S. W. 901.

The writ of habeas corpus is used in this state as a form of procedure for the purpose of litigating questions as to the proper custody of children and ascertaining what would be to the best interest of the child, to society and to the state, and is addressed to the equity powers of the court, and the power is given to the courts to make the change as a remedial right. The trial judge sits as a court of chancery, exercising broad equitable power, and the rules regulating the exercise of that power are and should be liberally construed. He should hear all legitimate testimony bearing upon the question, unhampered by narrow technical rules.

With reference to the office,of a writ of habeas corpus in a case of this kind, the Supreme Court through Judge Denman in the case of Legate v. Legate, supra, says: “The writ of habeas corpus has long been resorted to as the proper proceeding in order to determine whether a minor is unlawfully restrained of his liberty; and when, by means of such writ, a minor of such tender years as to be lacking in discretion has been brought before the court, it has not only inquired into and relieved against the unlawful restraint, if any, but has, in addition, or perhaps as a necessary incident, determined to whom the custody of the minor rightfully belonged.”

Again we quote from the opinion of Judge Denman in the Legate Case, as follows: “The question as to whose custody will be most beneficial to the infant is one of fact, of which this court has no jurisdiction, but which is to be determined in the first instance by the district court, upon hearing all the evidence tending to shed any light upon these two homes, and the people inhabiting them, including their entire connection with, affection for, and present and future ability to care and provide for this little girl, in order that the court may be enabled to determine, upon the whole case, the difficult question of the fact above stated.”

It is true that a habeas corpus proceeding in this state is defined under established rules as a civil action. It is also true that the trial court is to pass upon the main question for decision as to what is the best interest of the child itself. It is a question of fact, and we think that all of the issues incident to and connected with this question are and should be subordinate. The decision of the court should' be reached upon hearing of all the evidence tending to shed any light upon the question. In our judgment it is more a matter of evidence than a matter of pleading.

Believing as we do, after a careful consideration of the testimony contained in this record, that the evidence tends to sustain the findings made by the trial court, we must assume that the trial judge was endeavoring to award this child to the person best fitted to care for it under well-established rules of ' law. His. judgment should be construed fairly to see if it cannot be harmonized with the law. It is our judgment that the Court of Civil Appeals erred in its construction of the facts and the law and in reversing and rendering the judgment as it did.

Therefore, for the reasons herein stated, we recommend that the judgment of the Court of Civil Appeals reversing and rendering the judgment herein be reversed, and the judgment of the trial court be affirmed.

' CURETON, C. J.

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


author: HAWKINS, J.

text:
    JACKSON v. STATE.
    No. 13968.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    I. T. Ward and P. B. Ward, both of Cle-burne, and Pat Russell, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for violation of the provisions of the Sunday Law, punishment being a fine of $25.

No bills of exception are brought forward. There is found in the record what purports to be a statement of facts which appears to have been signed by the attorneys, but it does not bear the approval of the trial judge. .Without this the statement of facts cannot be considered.

The judgment is affirmed.


text:
    CAMPA v. STATE.
    No. 13984.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    T. B. Monroe, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted for aiding and abetting a party who was alleged to have been operating a motorbus without having a license as required by law. See subdivision (e) § 4, and section 14 of chapter 270, Acts Regular Session, Fortieth Legislature, and amended at the First Called Session of the Forty-First Legislature, c. 78, §§ 2, 5 (Vernon’s Ann. Civ. St. art. 911a, § 4 (c) and Vernon’s Ann. P. C. art. 1690a). Punishment was assessed at a fine of $50.

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

The judgment is affirmed.


author: CALHOUN, J.

text:
    CAMPA v. STATE.
    No. 13985.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    T. B. Monroe, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted of aiding and abetting a party in operating a motorbus without having displayed upon the front of said mo-torbus an identification metal plate issued by the Railroad Commission identifying said vehicle as being a motorbus authorized to operate as provided by law. Punishment was assessed at a fine of $50.

The record is here without statement of facts or any bill of exception, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    WOODARD v. STATE.
    No. 13964.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    A. R. Rucks, of Angleton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for ten years.

The parties involved are negroes. The homicide occurred at a wedding. According to the testimony of the state, deceased, Neal Austin, Jr., was talking to three parties when appellant walked up behind him, hit him with his fist, and kicked him. Resenting the blow, deceased turned and struck at appellant with his fist. Appellant then drew a pistol and shot deceased. Deceased died a short time thereafter.'

Appellant testified, in substance, that deceased had been paying undue attention to his wife for some time prior to the homicide, and that he had remonstrated with him. He said that on the night of the homicide he told deceased to quit talking to his wife, and that deceased had cursed him. He denied that he struck deceased, and declared that he merely walked up to him and asked him to quit talking to, his wife. He said that deceased struck at him; that they fought for a few minutes; that deceased made a move as if to pull a pistol, telling him (appellant) that he would kill him; that when deceased made such demonstration, he shot deceased, as he believed his life was in danger. Other witnesses gave testimony supporting appellant’s theory.

No bills of exception are found in the record.

The evidence being sufficient to support the conviction, the judgment is affirmed.

■ PER OURIAM.

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


author: LATTIMORE, J.

text:
    McCOWN v. STATE.
    No. 13572.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    T. A. Bledsoe, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Appellant was arrested in possession of two bottles of whisky. He had shortly before driven up in a car to a negro restaurant in the town of Hamlin, Tex., from which he was expecting to go on to Stamford presently. According to the state’s contention a hatbox was on the running board of the car, and in this were several other bottles of liquor. Appellant’s theory of the case was that said hatbox and its contents belonged to a negro woman named Edna, whom appellant had picked up at Rotan and was carrying for accommodation to Stamford on his way back to Abilene; that when the party got to Hamlin and stopped for supper, and had gone into the restaurant, Edna asked him to get her hatbox and bring it into the restaurant, that she was afraid it would be stolen.' Appellant testified that Edna went with him out to the car, and on the way out told him there was whisky in the hatbox. He also claimed that when he unlocked the ear door, she took the hatbox out, set it on the ground, and left it there, and that he opened it and put one bottle of whisky in his hip pocket, and was in the act of putting another in another pocket when the officer stepped up and arrested him. Appellant further testified he was going to take it into the restaurant. He suggests no reason why he was going to take the bottles of whisky out of the hatbox and dispose of them around his person as he stood outside of the car, and before taking the box into the restaurant.

Appellant was corroborated to some extent by another negro woman named Nellie. The woman Edna swore for the state that she had no whisky in her hatbox, did not go out to the car with appellant, and knew nothing of the whisky until after appellant’s arrest and the officer came back up to the restaurant. She further testified that appellant and Nellie kept company with each other and went together a lot. We observe that the testimony of appellant himself suggests the truth of this latter fact. He said he was going from Abilene to Rotan on the day in question to get a negro boy whose mother hired him to make the trip; that he took Nellie with him because she asked him to take her to Stamford, but when they got to Stamford she concluded to go on with him to Rotani They did not get the boy but started back without him. The whole story as detailed by the appellant is full of inconsistencies arid contradictions.

The facts and the people who narrated them were before the jury which had the right and duty to pass upon the testimony and accept or reject such of same as they saw fit. The judge before whom the case was tried is one of the most careful in this state. Edna said that, after they got to Hamlin and she and Nellie went into the restaurant, appellant went outside, and it was about thirty minutes after that before she learned of his arrest. The jury would be entirely warranted in believing that appellant was in the act of putting the whisky in the hatbox for the purpose of continuing its transportation, or of believing that appellant had the whisky in any other place of concealment that might have suited him about said ear. He was found in possession of it, and his explanation was hot ae-cepted by the jury. In this connection we note that the trial judge told the jury that, before they could convict, they must find beyond a reasonable doubt that defendant knew said whisky was in the car at the time and that it was transported, and, unless they so believed, they should acquit the defendant. We think nothing appears in the record indicating passion or prejudice on the part of the jury, but on the contrary appellant seems to have had a fair trial, and was accorded the lowest penalty.

The judgment will be affirmed.


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

text:
    ROACH v. STATE.
    No. 13936.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Rehearing Denied March 4, 1931.
    R. M. Gardner, of Amarillo, for appellant.
    Eloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for swindling in an amount of less than $50; penalty, confinement in the county jail for a period of ninety days..

The indictment appears regular. The record is before us without statement of facts and bills of exceptions. No fundamental error has been perceived.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant moves for a rehearing herein, asserting that the indictment is fundamentally defective. We have again examined the indictment. The contention of appellant seems to be based on the proposition that in a swindling case, and where the party swindled is alleged to be a corporation, this could not be sufficient to constitute swindling, for a corporation is not an individual person. We cannot agree to the contention. A corporation can be the victim of swindling. Nasets v. State (Tex. Cr. App.) 32 S. W. 698; Faulk v. State, 38 Tex. Cr. R. 78, 41 S. W. 616; Spurlock v. State, 45 Tex. Cr. R. 284, 77 S. W. 447. We think the indictment sufficient.

The motion for rehearing will be overruled.


text:
    REEVES v. STATE.
    No. 13990.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    ■ J. E. Bradley, Scott Reed, L. W. Shepperd, and Ira Lawley, all of Groesbeck, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

In the condition of the record it is needless for us to discuss the questions raised. The attention of this court has been called to the proposition that the trial judge who tried this case has certified, over his signature, in substance, that certain arguments made in the trial of such case were duly objected to, were not warranted by the evidence, were not in the record, were highly prejudicial to the accused, and were calculated to inflame the minds of the jurors against the accused, and were not responsive to nor warranted by any statement or argument of counsel for the defendant. It is impossible for this court to conceive how any district judge can make such certificate and permit such ease to come to this court on appeal at the expense of the people and delay in the trial of persons accused of crime.

We find in this record nine bills of exception, numbers 2 to 10, inclusive, each bill complaining of argument, and in each of them appears the following statement: “All of which statement or argument was not warranted by the evidence adduced, was not in the record, and was highly prejudicial to defendant, and was calculated to inflame the minds of the jurors against defendant, and it was not responsive to nor warranted by any statement or argument by counsel for defendant.” Each bill further shows due objection. This court can do no less than to reverse cases when the certificate of the trial judge to the bill of exceptions certifies, regarding the argument, to facts such as appear in the above quotation. It is to be hoped that more care will be exercised in the scrutiny of bills of exception in order that records may not come before us with such recitals in the bills of exception. If such recitals do not state the facts, they should not be approved. If ■ such recitals are true, new trials should be granted.

The judgment of the trial court will be reversed, and the cause remanded.


text:
    McLAIN v. STATE.
    No. 13405.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Sturgeon & Birmingham, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant pleaded guilty. He developed the fact that Cap Henderson had, at the last term of the court, been convicted in a companion case, and his punishment assessed at five years confinement in the penitentiary.

Bill of exception No. 1 sets forth appellant’s motion for a new trial. The bill also contains the testimony heard upon the trial of a companion case against Cap Henderson. This testimony is substantially the same, as far as the state’s case is concerned, as that found in the record in the present case. It is averred in the motion fqr new: trial that the juror J. W. Buster sát as a juror in the companion case; that appellant and his counsel had no knowledge that said juror had theretofore sat in the trial of the case of Cap Henderson; that the juror was asked upon his voir dire examination if he had any opinion as to the guilt or innocence of appellant, and if there was anything that would prevent him from fairly and impartially passing upon the question as to whether he should receive a suspended sentence. The juror was not asked if he had served in the companion case. The motion for new trial was sworn to. It is appellant’s contention that the juror was absolutely disqualified, and that he (appellant) should not be charged with lack of diligence in failing to question the juror touching his service in the companion case, inasmuch as he and his counsel were not aware that he had previously sat as a juror in said case. The juror was not disqualified, although subject to be challenged for cause. A different question would be presented had appellant not failed to diligently press the statutory inquiries as to the ground for challenge. It is the rule that ordinarily, in the absence of any fraudulent purpose on the part of the juror, or any injury to the accused, the failure to question a juror touching service upon a companion case constitutes a waiver of the right to thereafter complain. Mitchell v. State (Tex. Cr. App.) 27 S.W.(2d) 800; De Shazo v. State, 104 Tex. Cr. R. 511, 284 S. W. 561, 562. The motion for new trial was a mere pleading. We quote from De Shazo v. State, supra, as follows:

“Without intimating that it is true of this case, suppose the attorneys for the accused at his former trial should learn that one of the jurors who sat in said former trial had had a change of heart, and, upon his being offered as a talesman in the succeeding trial, should conclude that they would take him and say nothing about his former service. We do not think that it would be contended but that they, might do this if they desired. We would hardly think it likely in any case that the attorneys for a man charged with crime would want to challenge a juror in advance if they knew he was for acquittal. The record in this case shows that part, if not all, of the same'attorneys who represented appellant on this trial were defending him on the former trial. Appellant himself testified that he did not remember Mr. Ballard as one of his former jurors. The record does not show any question to the juror on his voir dire as to his former service. The clerk’s office contained a list of the jurors who served on the former trial. Appellant’s attorneys not having asked any question of the juror, and nothing appearing in the record to indicate any fraudulent purpose on the part of said juror, or any injury to appellant, we hold that the objection, if any was waived.”

The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, J. LATTIMORE, J.

text:
    RHODES v. STATE.
    No. 13803.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied Feb. 25, 1931.
    See, also, 28 S.W.(2d) 548.
    - Lon A. Brooks, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

Only one bill of exception is brought forward. The state’s attorney calls our attention to the fact that it was filed too late. The motion for new trial was overruled on the 9th day of April, and 60 days from that date granted in which to file statement of facts and bills of exception. The sixty days expired on the 8th day of June. The bill was not filed until the 14th day of June, six days too late. The bill cannot be considered. Article 760, C. C. P. (1925); Bivens v. State, 111 Tex. Cr. R. 561, 15 S.W.(2d) 7; Phipps v. State, 112 Tex. Cr. R. 502, 17 S.W.(2d) 811. Other cases are found in note 36 under article 760, Vernon’s Ann. C. C. P. of Texas, vol. 3.

The statement of facts was also filed on the 14th day of June, but, this being within 90 days from the overruling of the motion for new trial, it may be considered under the provisions of section 5 of article 760, C. C. P. (19215). Erederickson, the alleged purchaser, testified positively that he bought two gallons of whisky from appellant at a time when Rives was with witness; that in leaving town in a car in which the whisky was witness ignored a stop sign, was chased by a motor cop, had a wreck, and that he and Rives were injured and taken to a hospital. Rives’ evidence supported Erederickson. The motor cop related the incident of chasing appellant’s ear, the wreck, and about finding some jars, containing whisky in the car, and others broken with whisky over the floor of the car. Appellant denied the sale. He claimed that, appellant was at his house not to buy, but to sell, whisky. Other evidence, was introduced by appellant seeking to show that appellant had gotten a load of whisky in Fort Worth, a part of which was in the car when wrecked. The issues of fact raised by the testimony were settled by the jury in the state’s favor.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case was affirmed at a former day of this term. The only bill of exceptions in the record appeared to have been filed too late. Appellant accompanies his motion by a properly certified supplemental transcript in which is brobght forward an extension order made in due time by the trial court, allowing to appellant additional time within which to file statement of facts and bills of exception. The bill referred to was filed within the time comprehended by said order of extension, and will now be considered.

Said bill of exceptions complains of argument of the state’s attorney. The bill is qualified at some length by the trial judge. No exception was taken to the qualification. It appears from the qualification that counsel for the defense had severely criticized the state witnesses, and had argued to the jury that they were testifying falsely to protect the alleged purchaser of the liquor charged to have been sold by appellant, and that in what was said by the district attorney he was but replying to the argument and critic cism of the defendant’s attorney. Appellant admitted while a witness on this trial that he had been convicted for possessing intoxicating liquor for purposes of sale. We have carefully examined the testimony with a view of determining whether or not the statement made by the-, prosecuting- attorney was one of such nature as might be calculated to injuriously affect the rights of the appellant. We are unable to believe it of such nature.

The motion for rehearing will he overruled.


author: MORROW, P. J.

text:
    SCHULTZ v. STATE.
    No. 13717.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    W. J. Baldwin and J. R. McDougald, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Assault with intent to murder is the offense ; penalty assessed at confinement in the penitentiary for three years.

William Broderick, a taxicab driver, was employed by the appellant to take him to Sabine Pass. After traveling some distance from the city, the car was stopped at the request of the'appellant,-who claimed that he desired to answer a call of nature.' Before getting into the car again, he told Broderick that one of the tires appeared to be in need of air. Broderick got out of the car, and, when he stooped to look at the tires, he was struck by the appellant with some instrument a number of times, rendered unconscious for a time, and seriously injured. Appellant then took possession of the car and left. Witnesses who saw Broderick described him as very bloody, covered with dirt, looking very bad. He was bruised and bleeding. There were several wounds on his head, requiring a number of stitches, and keeping him in the hospital for five days. When pursued, the appellant left his ear and got into a bog. In the car an officer found a bloody cap and a piece of iron about eighteen inches long and three or four inches thick, wrapped with a white rag which was saturated with blood. The car was afterwards identified as that which had been taken from Broderick.

Appellant defended upon the ground that he was so drunk that he did not know what had happened. Broderick testified that he saw the appellant drink some, but that he did not appear to be drunk. Appellant was a sail- or, and claimed that another sailor whom he did not know had given him some liquor which deprived him of his senses; that he drank other liquor also; that he had no knowledge of his conduct in assaulting Brod-erick; that he came to his senses about daylight, and found himself in the mud and water somewhere near the Texas Refinery; that he was arrested in that locality.

On cross-examination, appellant testified, in answer to a question propounded by state’s counsel, that he was staying at a rooming house in Port Arthur, Tex., conducted by Ella Burns, a colored woman.- On reeross-ex-amination, he was asked if it was not a house of prostitution. A bill of exception shows that objection was made to the question, but it fails to show that there was any answer to the inquiry.

Two other bills of exception complain of the refusal of special charges on the subject of the use of intoxicants. The jury was given special charge No. 2, requested by the appellant, which special charge adequately instructed them that intoxication did not excuse the crime, but was a matter that might be taken into consideration by the jury in fixing the penalty in the event of a conviction. The charge given gave the accused the full benefit of the law, as declared in article 36, P. O. 1925.

Failing to find any reversible error in the record, the judgment is affirmed.


text:
    PRITCHARD v. STATE.
    No. 13937.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    E. O. Northcutt, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction for embezzlement of property oyer $50; punishment, two years in the penitentiary.

The record in this case shows that upon the trial of this cause the appellant did not file any plea for suspended sentence, provided for under article 776, G. C. P. There was no issue as to a suspended sentence submitted in the court’s charge to the jury. The jury returned into court the following verdict:

“We, the jury, find the defendant, O. E. Pritchard, guilty of embezzlement in an amount of over $50.00 value, as charged in the indictment, and we assess his punishment at confinement in the penitentiary for two (2) years.
“W. P. Martin, Foreman.
“We, the Jury, recommend a suspended sentence.
“W. P. Martin, Foreman.”

Said verdict was received by the court as written, and judgment entered thereon by the trial court, fixing appellant’s punishment at confinement in the penitentiary at two years, as assessed by the jury, but entirely ignoring that portion of .the verdict which recommended a suspended sentence. This fairly raises the question as to whether a trial judge may receive a verdict which as part thereof, as in this case, recommended a suspended sentence, and then enter a judgment which ignores such recommendation.

In the case of Bessett v. State, 78 Tex. Cr. R. 110, 180 S. W. 249, 250, the majority of -this court, speaking through Judge Prender-gast, held in effect that, when no plea for suspended sentence was filed before trial and the jury nevertheless returned a verdict of guilty recommending a suspended sentence, the action of the court in entering up a judgment and sentence upon such verdict, disregarding the recommendation to suspend, was proper, since a judge has no power to suspend a sentence unless proper plea is filed before trial. In that case, Judge Davidson, filed a dissenting opinion, holding that: “If it be held that the defendant could not get the benefit of the suspended • sentence without his sworn application, then the jury returned a verdict which they were not authorized to do, and the court did not have any authority to receive it. An illegal verdict is a paradox. If illegal, it is not to be received or enforced. If he did not like the verdict and thought it was illegal, he should have sent the jury back and required them to find a proper verdict.”

He calls- attention to C. C. P. (1911), art. 773 (now article 696), and, continuing, says: “If the verdict is illegal, the court cannot legalize it by receiving it.”

In the case of Champion v. State, 113 Tex. Cr. R. 172, 19 S.W.(2d) 63, 65, which was a trial for forgery, the-jury returned a verdict of guilty and assessed the punishment at two years in the penitentiary and recommended a suspended sentence. The trial court refused to receive the verdict because the issue of suspended sentence was not submitted to the jury and with the consent of the jury struck out the recommendation for suspended sentence, and then received the verdict. This court, speaking through Judge Lattimore, affirmed said case upon the ground that article 696, C. C. P., authorizes judges of courts to reduce verdicts to proper form with the consent of the jury, and it is only when the jury refuses to have their verdict altered that it is deemed necessary under the plain terms of said article to return the verdict to them and send them back for further deliberation. He cites many cases in support thereof. The case was affirmed upon the ground that the trial judge refused to receive -the verdict as returned until, with the consent of the jury, the recommendation for .'suspended sentence was stricken out. The dissenting opinion of Judge Davidson id the case of Bessett v. State, hereinbefore mentioned, was cited at length in said opinion with approval and in summing up what was held in said opinion by Judge Davidson, Judge Lattimore said: “It seems plain from this opinion that Judge Davidson’s reasoning was to the effect that if the court had changed and reformed the verdict, or, upon the jury refusing to have this done, had retired them, in either event there would have been no need for a reversal.”

Continuing, Judge Lattimore -says: “The proposition that the court cannot receive a verdict, discharge the jury, and thereafter change the verdict in any material part, has been often affirmed by this court, and is in accord with its uniform holdings. In Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998, 1003, we said: ‘The court could not accept the verdict of the jury and permit it to stand, and yet refuse fo abide by it.’ ” Citing Essery v. State, 72 Tex. Cr. R. 414, 163 S. W. 17; Coleman v. State, 75 Tex. Cr. R. 66, 170 S. W. 150.

Judge Hawkins, in the same case in his concurring opinion, says: “I believe the opinion of the majority of the court in Bessett v. State, 78 Tex. Cr. R. 110, 180 S. W. 251, is erroneous. I am in full accord with the dissenting opinion of Judge Davidson in that case to the effect that a trial judge may not receive a verdict which as a part thereof recommends a suspended sentence and then enter a judgment which ignores such recommendation.”

It is our opinion that the trial court in this case, having entered an unauthorized judgment upon the verdict, which he ought not to have received, makes it necessary for us to reverse the judgment and remand the cause.

Reversed and remanded.

PER CURIAM.

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


text:
    PRUETT v. STATE.
    No. 13944.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    M. W. Burch and Grady Woodruff, both of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction for transporting intoxicating liquor; punishment assessed at sixteen months in the penitentiary.

An admitted cotransporter, one Lillard Green, testified that he lived five miles east of Slidell in Wise county, Tex.; that he went with Allen Pruett, the appellant, who had ashed that he come to Decatur with him; that they were in Slidell, and that appellant had some liquor (whisky), and he wanted the witness to go down the road with him, and that they went down the road and threw the liquor out of the car. They then came back to Decatur and got a stove for appellant; that while they had the liquor they were in Allen Pruett’s car, and that he was driving; that they stopped on the road at a little culvert or bridge and threw the liquor out, between Decatur and Slidell; that the appellant told him that he was going to sell the liquor to one Bryan Blair; that they went back to town and saw the said Blair; that the appellant called Blair out'to the car; they had a conversation with him about borrowing some money; that they then all got in the car and went back to where the liquor was thrown,'but that it was gone; that the appellant and B.ryan Blair had a fight in the road about the whisky; that the appellant hit. Blair on the side of the head and skinned him; that the appellant did all the driving.; that there was something like a pint or a quart of whisky in .a jar in the car. Said witness was corroborated by another state witness who witnessed the transaction as to seeing the liquor thrown out of the ear and afterwards getting the liquor and destroying it.

It was appellant’s defense and he so testified that he was present but had nothing to do with the transportation of the whisky. The state’s witness, Lillard Green, was the one who was transporting the whisky and driving the car, and that all the appellant had to do with the transaction was that he assisted in the drinking, of the whisky.

Appellant excepted to the charge of the court and presented special requested charges 2 to 6, inclusive, the exceptions and objections being that the court had not limited the jury in their consideration of the law of principals by a charge that the appellants mere presence would not constitute him a principal. The appellant had testified, in substance, that he was merely present and riding in said automobile and exercised no control over and had no physical possession of the whisky. The court in his charge gave the following instruction to the jury: “If-you believe and find from the testimony that the whiskey in question alleged to have- been transported was owned by Lillard Green and was under his control, and that Allen Pruett was merely present riding in said automobile and exercised no control over, and had no physical possession of the whisky, he would not be guilty unless he, by words or acts, encouraged the transportation of said whisky, and if there is a reasonable doubt in your mind as to whether or hot the said Allen Pruett did exercise control or dominion over or had physical possession of the whisky in question, or did by some word or act encourage the transportation of said whisky, you will find the defendant not guilty.”

This, in our opinion,. fully covered in an affirmative manner the defense set up by the appellant in this ease and did not call for any of the special instructions asked for and -complained of in said bills of exception.

Bills of exception Nos. 7 and 8 complain of the charge of the trial court in defining the word “transport,” upon the ground that the definition in said paragraph No. 2 limited and was not a correct and legal definition of said word or term as applied to the law in this case. The court defined the word “transport” in his charge as follows: “The word ‘transport,’ as herein used, means to move or carry from one place, or locality, to another place, or locality.”

In Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425, 426, Judge Morrow, Presiding Judge, speaking for the court, says: “The statute does not define ‘transport.’ Under the law, it is to be given the meaning ‘understood in common language,’ taking into consideration' the context and subject-matter. .Penal Oode, art. 10. In common' language, ‘transport’ signifies the carrying or conveying from one place, locality, or country to another. Cyc. of Law & Proc., vol. 38, p. 946.”

If it was necessary for the court in this case to give a definition of the word “transport,” the definition given was substantially correct and presents no reversible error.

Bills of exception Nos. 9, 10, and 11 complain of the action of the court in giving in his main charge the definition of principals, because as to who were or who were not principal offenders was not an issue in this case. Under the evidence in this case, we think the court properly charged on the law of principals.

By bill of exception No. 13 appellant complains of the introduction by the state of certain testimony by witness O. M. Quisen-berry, the objection being that such testimony was hearsay testimony and no proper predicate had been laid for impeachment that would authorize the introduction of said testimony. In said bill of exception no facts are stated showing why the evidence was objectionable. It does not disclose the predicate or condition under which the testimony was admitted. It does not show as a fact that a proper predicate had not been laid, and, a mere statement of that matter as a ground of objection being insufficient, said bill does not call for our review. Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959; Carmona v. State (Tex. Cr. App.) 65 S. W. 928; Revels v. State, 88 Tex. Cr. R. 36, 224 S. W. 689.

Appellant’s bill of exception No. 14 complains of the trial court’s failure to give a charge on the law of circumstantial evi-denee. In this case there was direct and positive evidence of the transporting of intoxicating liquor; therefore no charge on circumstantial evidence was called for.

We note that the verdict and judgment in this case assess appellant’s punishment at sixteen months in the penitentiary, and that the sentence also fixes his punishment at sixteen months in the penitentiary. The sentence will therefore be reformed and the punishment fixed at an indeterminate term of not less than one year nor more than sixteen months in the penitentiary, and, as so reformed, the judgment will be affirmed.

PER CURIAM.

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


text:
    HADNOT v. STATE.
    No. 13792.
    Court of Criminal Appeals of Texas.
    Jan. 28, 1931.
    Rehearing Denied March 4, 1931.
    Adams & Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Transporting intoxicating liquor is the ‘offense ; penalty assessed at confinement in the penitentiary for one year.

Ivory Hadnot gave testimony for the state. While traveling in an automobile, the witness, Erank Hafford, and Tat Hadnot purchased a gallon of whisky from a stranger whom they met on the highway. After purchasing the whisky, the three put it in their car and carried it to the Dixie schoolhouse. Erom there the parties carried the whisky for some distance and hid it. It was not purchased for sale, but for the purpose of drinking. The witness said: “I saw the whisky hidden. I was interested in it and assisted in carrying it to a place to hide it. We finally drank it all. We hid it for our own use.”

Hafford testified that he, Tat Hadnot,- and Ivory Hadnot purchased a gallon of whisky and took it to their car; that they drank part of the whisky and afterwards took it in the car to another place, where they hid it.

It seems that the parties were all negro boys, and that the appellant had a good reputation as a peaceable law-abiding citizen.

It is suggested that, in assisting in hiding the whisky, the state’s witnesses so connected themselves with the criminal act as to characterize them, as accomplice witnesses. We have been referred to the case of Campbell v. State, 103 Tex. Cr. R. 97, 280 S. W. 778, in which the witness Spencer testified that he owned 57 quarts of whisky which were secreted in a pasture; that he purchased from Campbell an interest in his business in ex-chage for the 57 quarts of whisky. The two (Campbell and Spencer) went to a schoolhouse where the whisky was hidden. It was loaded into Campbell’s car, and he drove away with it. The offense charged was the transportation of whisky. Spencer was not corroborated. Being the seller of the whisky, he was an accomplice witness.

In the present case, the offense charged is unlawfully transporting intoxicating liquor. The appellant was a participant in the transporting; so were the witnesses. The three joint owners of the whisky, in hiding it, committed no offense. That it was not for sale is shown by the state’s evidence. We are therefore unable to escape the conclusion that article 670, P. C., declaring that the transporter is not an accomplice witness, operates upon the present facts so that the uncorroborated testimony of Ivory Hadnot and Erank Hafford was available to the state to convict the accused.

The judgment is affirmed.

On Motion for Rehearing,

LATTIMORE, J.

Appellant urges again that Ms conviction cannot be sustained upon the ground that the state witnesses admitted that they went with appellant on the occasion in question, contributed to the purchase of the liquor alleged to have been transported, and then went back with appellant in his car over the highway. He insists that they thus became and were accomplices. We again call attention to the fact that by express provision of our statute purchasers and transporters of intoxicating liquor, while accomplices, may give testimony which will support a conviction for the offense of transporting such liquor. We have examined the case of Adams v. State, 105 Tex. Cr. R. 175, 287 S. W. 499, cited by appellant in bis motion, but observe that same was a case where the parties were charged with the possession of a still for the manufacture of intoxicating liquor, and that what we said in that case regarding certain witnesses as accomplices and their testimony can have no application here.

The motion for rehearing will be overruled.


author: MOBBOW, P. J. '

text:
    MACHA v. STATE.
    No. 13798.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    James A. Harrison, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MOBBOW, P. J. '

The offense is the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

Under a search warrant the appellant’s dwelling house was searched on the 6th day of December, 1929, and the officers found therein two gallons of whisky, a number of empty pint flasks, an empty five-gallon jug, and four empty gallon jugs. The whisky was found in a room occupied by the mother of the appellant who, according to the officers, was blind and paralyzed. She was lying on the bed and the whisky was under it. The officer said that he did not believe that the appellant’s wife was there at the time.

Two witnesses testified that they had bought whisky from the appellant. One of them claimed that he had bought two pints on credit but afterwards paid the appellant for them. The witness said that he was under indictment for transporting the two pints of whisky which he had purchased from the appellant.

Appellant testified in his own behalf and denied both of the transactions. He also testified that his mother was 78 years of age, blind, and paralyzed; that his wife, at the time of the trial, was in a hospital, having undergone an operation for cancer which rendered it impossible for her to attend court. The appellant introduced testimony showing that his reputation as a law-abiding citizen was good. This was not controverted.

Appellant sought to continue the case because of the absence of his wife, asserting that she would testify to the same facts controverting the testimony of the state’s witnesses touching the sale of any whisky by the appellant; that she would also testify to her sickness and to that of the appellant’s mother; that she would corroborate the testimony of’the appellant to the effect that Dr. Lancaster had prescribed the use of whisky for each of the women. She would also testify that the appellant had never sold any whisky within her knowledge nor kept any liquor for sale. The application was the second one sought because of the absence of the appellant’s wife. At the present trial she was not subpoenaed for the reason that she was detained in a hospital in New Orleans where she had undergone an operation for cancer.

While testifying in his own behalf the appellant sought to explain that the reason his wife was not present was because of her illness. Objection that this was immaterial was sustained. In view of the fact that the appellant defended upon the ground that he had the whisky found in his possession for the use of his wife and that she would give testimony supporting that theory, especially since he had made aplication for a continuance on account of her absence and there being no controversy that her absence was due to her serious illness, his right to explain her absence would seem to be a material right which should not have been denied him.

The complaint in bill of exception No. 4 of the refusal to sustain his motion to quash the affidavit for the search warrant shows no error.

In bill No. 5 it appears that the jury, after deliberating for some time, requested the court to inform them whether it would be permissible for them to give the appellant a suspended sentence if they found him guilty. The court instructed them in writing that they must look to the original charge and ,be governed by it. As a matter of fact, the appellant was more than twenty-five years of age and the suspended sentence was not available to him.

For the reason stated, the judgment is reversed, and the cause remanded.


text:
    HATCHER v. STATE.
    No. 13946.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

An officer followed an automobile occupied by appellant and two other men. Appellant was driving the car. When the car stopped a search was made, with the result that two half-gallon jars of whisky were found near the feet of appellant and one of his companions. The jars were in a paper sack. A witness for the state testified that he saw appellant in conversation with a man who later came to the car and placed a paper sack in the car; and that after this occurrence appellant and his companions drove away. The testimony of the state was to the effect that the search was made after the paper sack had been placed in the car and transported by appellant and his companions upon a public highway. Appellant testified, in substance, that the automobile belonged to one of his companions; that he entered the car for the purpose of riding around; that the parties stopped at a filling station to buy some gasoline and he (appellant) got out of the car and went inside; that when he returned there were two paper sacks in the car; that he did not know what the sacks contained, and had no knowledge that there was whisky in the automobile.

In his closing argument, the county attorney used language as follows: “Gentlemen of the jury: After this jury had been selected a lawyer in this town told me that I would not get a conviction in this case because I had a man on this jury who would not convict in a liquor case.”

It is stated as a fact in the bill of exception that the argument was made for the purpose of prejudicing the jury; that there was nothing in the record to support it; that the remarks were not invited by appellant’s counsel; that said argument was of such prejudicial character that its effect could not be withdráwn from the jury. The argument was obviously hurtful and prejudicial. It was calculated to improperly influence the jury to accept the state’s version of the transaction upon which the prosecution was predicated, and to deprive appellant of the right to have the credibility of the witnesses freely 'discussed by the jury. The issue of guilt was closely contested. It is the general rule that, “if the improper argument by state’s counsel is of such grave character as to render it obviously injurious and prejudicial, and the matter is presented by a proper bill of exception, the fact .that no special charge was asked instructing the jury to disregard the argument would not of itself deprive the defendant in a proper case of a reversal.” Branch’s Annotated Penal Code, section 362; Murmutt v. State (Tex. Cr. App.) 67 S. W. 508, 510; Robbins v. State, 47 Tex. Cr. R. 312, 83 S. W. 690, 122 Am. St. Rep. 694; Jenkins v. State, 49 Tex. Cr. R. 457, 93 S. W. 726, 122 Am. St. Rep. 812; Boyd v. State, 108 Tex. Cr. R. 221, 299 S. W. 645.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    HIGHTOWER v. STATE.
    No. 13874.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Estes & Estes, of Granbury, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for four years.

Appellant, a negro, cut Claud Wallace, a white man, on the head with a small pocket knife. According to the testimony of the doctor, the injured party would have bled to death unless he had immediately received proper medical attention. The injured party testified, in substance, that appellant came into his store and asked for a can of Prince Albert smoking tobacco, and he asked appellant if he had his money, and he replied that he did; that he gave him the tobacco ; that appellant gave him a dime; that he told appellant that would not pay for it, as the tobacco sold for 15 cents a can; that appellant said: “Give me the dimé. I don’t have to buy here; I will buy it somewhere else”; that later appellant returned to the store; that he asked appellant if he had the other nickel; that appellant replied that he did not have to buy the tobacco there; that he (the injured party) started toward appellant, telling him not to get smart, and saying to appellant: “You s- of a b-. I will kick you out of the house”; that he and appellant clinched and appellant cut him on the head with a knife. The injured party testified that appellant’s general reputation for being peaceable and law-abiding was good. Many other witnesses testified to the same effect. The state made no attempt to prove the contrary. Some of the witnesses present in the store said that they did not see appellant take the knife out of his pocket after he entered the store. The knife was described as a small knife. Appellant did not testify in his own behalf.

The court charged on assault with intent to murder, aggravated assault, simple assault, and self-defense. Appellant made an application for a suspended sentence, which was duly submitted to the jury. The injured party, according to his own testimony, cursed appellant and told him that he would kick him out of the house, and approached him as if to attack him. The parties clinched and fought until separated. It was incumbent upon the state to prove beyond a reasonable doubt that appellant intended to kill the injured party. On this point we are in such grave doubt as to the sufficiency of the evidence as that we are unwilling to permit the conviction to stand.

The judgment is reversed and the cause remanded.

PE® CURIAM.

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


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    WOMACK v. STATE.
    No. 13905.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    W. R. Parker and John Morison, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Bill of exception No. 3 relates to tlie remarks of the court to the jury upon being advised that they were unable to agree upon -a verdict. The court certifies that the following occurred:

“The court asked the jury whether or not they had agreed on a verdict and upon being advised that they had not the court asked the jury how they stood numerically and upon being advised by a member of the jury that they stood eleven to one the court then •asked of the jury who the one man was that was holding out against the eleven, to which the court received no response. The court then stated to the jury that his reason for wanting to know who the one man was was •so he could inquire of said juror whether or not there was a possibility of his changing his vote, to which statement the court again received no response., The court then stated to the jury that his purpose was to prevent a mistrial if possible, as mistrials cost the county money. The court then asked the jury how they had conducted their balloting and was informed by a member of the-jury that it; was done secretly. The court then stated to the jury that he suggested that they go back into the jury room and take an open ballot and in that; way they could find out who the one man was who was holding out against the eleven and that they could then discuss the case and evidence with him. The court further stated to the jury that it was not his intention to influence any member of -the jury; that they . and each of them were entitled to their opinions and had a right to stand by it. One member of the jury at that point informed ■the court that when the jury first retired they stood ' ten to two for conviction and that he was one of the two who had voted for an acquittal but that he came over for guilty, leaving the count eleven to one for conviction. The court again suggested to the jury that they retire and take, an open ballot and see if they could agree, whereupon said jury retired and within approximately five minutes, returned a unanimous verdict of guilty into the court.”

A similar situation was presented in Golden v. State, 89 Tex. Cr. R. 525, 232 S. W. 813, 814. , In that case the jury advised the trial judge that they had been unable to reach a verdict. The court asked them if they thought.they could reach a verdict, and the •foreman replied in the negative. The court then advised the jury that, while it was not his purpose to punish them by keeping them together, yet it was expensive to try cases, and the court was unable to see why a verdict in a case in which the testimony was short and clear could not be reached. Further, the court stated to the jury that he had no power or right to make them reach a verdict. Being advised by the jury that they had agreed upon the question of the appellant’s guilt or innocence, the court asked them upon what point they were unable to agree, and the' foreman replied that they were unable to agree as to the suspension, of the sentence. The court then asked the jury, how they stood numerically on this question, and was advised that they stood ten to two. The court asked: “Do you two gentlemen think you can ever agree to a verdict in this case?” One of the jurors replied in the negative, and the other stated that he thought they could if the court would send them back. Whereupon the court said: “Then, gentlemen, retire and try to get a verdict in this case. It is the desire of the court that you get a verdict, and if you are unable to get a verdict after you retire, I will discharge you a little later.” In reaching the conclusion that the remarks of the court constituted error, Judge Lattimore, speaking for the court, said:

“It seems that after having so expressed himself, the court spoke directly to the two jurors who had not found the evidence clear enough to lead them to agree to a conviction without suspended sentence, and asked them if they thought they could ever agree to a verdict. One of them answered that he thought if the court would send them back they could; the other replied that he did not think they could. The court then told them to retire and try to get a verdict; ■that it was the desire of the court that they get a verdict. This, was manifest error. These two men had agreed, as far as they were concerned, on a verdict of guilty with the suspended sentence. The expression to them by the court of his wish to know if they could agree on a verdict was obviously an inquiry as to whether they could agree with the others of the jury; and we are unable to rid ourselves of the belief that under the circumstances the toial court’s statement of his desire that they should get a verdict might easily be construed by said two jurors as directed at them, and as evidencing a desire on the pari; of the court that they should agree to what the others had agreed on.”

In Lagrone v. State, 84 Tex. Cr. R. 609, 209 S. W. 411, 415, Presiding Judge Morrow, speaking for the court, said:

“It is a most delicate undertaking to have verbal communications with the jurors touching the case on trial after the retirement of the jury, and should be attempted only upon rare occasions and impelled by the soundest reasons, and too much caution cannot be exercised in the effort to avoid impressing the jury with the idea that the court entertains any impressions of the ease which he wishes them to know, and putting before them matters which should not enter into or affect their deliberations, such as the expense incident to a mistrial, should in all cases be avoided. To the jury the language and conduct of the trial court have a special and peculiar weight.”

The state’s attorney before this court confesses error. We are driven to the conclusion that under the circumstances the trial court’s statement that it was his object to prevent a mistrial, if possible, as trials cost the county money, might easily have been construed by the juror who stood out against the eleven as directed at him, and as evidencing a desire on the part of the court that he should agree to what the others had agreed on.

For the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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


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    SURRATT v. STATE.
    No. 13216.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Alex Pope, of Dallas, and Gentry & Gray, of Tyler, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   LATTIMORE, J.

Conviction for operating a motor vehicle on a public highway while intoxicated; punishment, two years in the penitentiary.

We find in the record three bills of exception. Bill No. 1 was taken to the admission of Hunter’s testimony as follows: “His condition wasn’t quite as bad when he came in there as it was when Mr. Bean arrested him. It was a little worse when he arrested him than it was when he first came in.” On the proposition that if the accused was not as drunk when he came into the garage as he was when arrested, we fail to see how proof of this fact could have hurt appellant’s case. The issue before the court was whether appellant was under the influ’enee of intoxicating liquor when he operated his car on a highway prior to the time he entered said garage, and if testimony was offered of his condition when arrested, by the state as supporting' the proposition that some time prior thereto he was intoxicated while on the street, the testimony objected to would seem favorable to the appellant’s side of the ease.

Bill of exceptions No. 2 is qualified by the trial court and shows no error.

The issue of misconduct of the jury, presented in bill No. 3, was decided by the court against appellant after hearing a number of the jurors testify upon the presentation of the motion for new trial. The affidavit of one juror attached to said motion, and the oral testimony of the same juror before the court, supported the proposition that a Mr. Love, another juror, made a statement in the jury room before the verdict was agreed upon, which if made and believed might have reflected on the truth of certain defensive testimony. However, other jurors affirmed on the hearing that what Mr. Love said in this regard was after their verdict had been reached both as to guilty and the penalty. Mr. Love testified that he made some such remark, but that it was after the verdict and’ penalty had been agreed upon. We have uniformly held that in a condition of conflict such as is presented here, the court’s action adverse to the fact of misconduct is no abuse of his discretion. • There were no exceptions to the court’s charge. The evidence seems ample to support the verdict and judgment.

The judgment will be affirmed.


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    WILLIAMS v. STATE.
    No. 13895.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Upton & Upton, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for libel; punishment, a fine of $500.00.

It appears from bill of exceptions No. 9 'that the court gave a special charge asked by appellant, and that during the argument of the case, and in the closing argument of the county attorney, he said to the jury: “That said charge did not apply in this case and would apply only in a civil case.” The argument was objected to as being in direct confliot with the court’s instruction and as calculated to lead the jury to believe that said charge did not apply to this case and was not proper, and the appellant requested the court to instruct the jury not to consider the argument The objections appear to have been overruled. That the argument was manifestly improper is apparent, and the point has been decided by this court in favor of appellant’s contention. There is also complaint of another argument made by said county attorney to the effect that before he filed the complaints against appellant he discussed the matter with the district attorney, and on his advice filed said complaints, and that he had also discussed the same with eminent counsel of the city. It is apparent that discussion of this kind should not have been indulged. The only effect of such argument would be to put behind the prosecuting attorney’s opinion that of the district attorney and of other eminent counsel. In none of the other matters presented by bills of exception do we think error is shown.

Appellant was an attorney in Dallas representing a mortgage company which had purchased a number of notes and accounts from a San Angelo concern which dealt in such securities. A bond had been made ip San Angelo and signed by Mr. W. W. Foreman. The appellant wrote a letter to Mr. Foreman in which he plainly .stated that the owner of the San Angelo concern, . calling him by name, had misappropriated and converted the funds represented by the notes and accounts which were listed in the letter. We think the indictment sufficiently charged the offense, and that the charge of the court correctly presented the law of the case.

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


author: LATTIMORE, J. HAWKINS, J.

text:
    OWENS v. STATE.
    No. 14118.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1931.
    Rehearing Denied Feb. 25, 1931.
    See also 28 S.W.(2d) 133.
    W. H. Browning, of Lampasas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction tfor driving automobile while intoxicated; punishment, ten days in the county jail and a fine of $100.

Our attention is called by the state’s attorney with this court to the fact that appellant’s motion for new trial herein was overruled on September 6, 1929. The statement of facts was filed December 18th thereafter. Under the law the statement of facts must be filed within ninety days after the overruling of the motion for new trial and giving of notice of appeal. Manifestly this statement is filed too late to be considered. There are no bills of exception. Tbe indictment, tbe charge of.tbe court, tbe judgment, and sentence as entered nunc pro tunc, appear regular.

Tbe judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We bave examined tbe transcript as re-guested by appellant in order to verify tbe adjourning date of tbe trial term of court, as well as tbe date upon wbicb appellant’s motion for new trial was overruled and notice of appeal given.

We regret that tbe result of our investigation still leaves us of opinion that the statement of facts may not be considered. Article 760, O. O. P. (1925), is binding upon this court and may not be ignored by us.

Tbe motion for re-bearing is overruled.