author: DAVIS, Commissioner.

text:
    BETH-ELKHORN CORPORATION et al., Appellants, v. James THOMAS, Workmen’s Compensation Board of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.

      Harry C. Campbell, Pikeville, for appellants.
    C. W. Napier, Jr., Hazard, for appellees.
   DAVIS, Commissioner.

The Workmen’s Compensation Board awarded compensation to James Thomas at the rate of $38.00 per week for a period of 425 weeks, based upon the Board’s findings that Thomas is totally, permanently disabled from silicosis. The Board’s award was upheld by the circuit court. The em-ployer (appellant Beth-Elkhorn, as corporate successor to Bethlehem Mines Corporation) seeks reversal, and presents these assignments of error: (1) KRS 342.185 required appellee to file his claim within three years of his last injurious exposure to silicosis, and this was not done; (2) the amount of benefits due, if any, should be fixed as of the date of the last exposure, not by statute applicable when disability first became manifest; (3) KRS 342.316(4) bars the claim because appellee was not injuriously exposed for two years immediately next before his disability, and (4) if the foregoing bases for reversal are decided adversely, then the Special Fund should be required to pay whatever claim is allowed.

There is no material dispute as to the facts. Thomas was employed in the mines of appellants for several years, until he voluntarily ceased his employment on May 25, 1960. He was injuriously exposed to silicosis for more than two years immediately prior to May 25, 1960, but as of that quitting date he was not disabled, nor had he experienced any distinct manifestation of silicosis. The Board found that Thomas first experienced manifestation of his sili-cotic condition in September, 1963, and fixed the date of his disability as September 26, 1963; the claim for compensation was filed with the Board on December 11, 1963.

Our recent ruling in Kiser v. Bartley Mining Co., Ky., 397 S.W.2d 56, is dis-positive of the first point advanced. Here as there, since the three year limitation period formerly prescribed in KIRS 342.185 was deleted, effective June 16, 1960, and before it had run against Thomas’ claim, it has no effect in the case.

The second contention of appellant requires consideration of the effect of a 1962 amendment to KRS 342.316(5). In 1960, when Thomas ceased working in the mines, KRS 342.316(5) provided in pertinent part as follows:

“The amount of compensation payable for disability due to occupational disease * * *, and the time and manner for its payment, shall be the same as provided for accidental injury or death under the general provisions of the Workmen’s Compensation Act, but in no event to exceed such amounts and, provided further that the time of the beginning of compensation payments shall be the date of the employee’s last injurious exposure to the cause of the disease, or the date of actual disability, whichever is later * * * »

In 1962 the just quoted statute was amended, so that the phrase following the words “Workmen’s Compensation Act” now reads: “ * * * but in no event to exceed such amounts as were in effect at the time of the last injurious exposure * *

The maximum weekly benefits payable, pursuant to KRS 342.095, were $32.00 per week when Thomas ceased working in 1960. The rate had increased to $38.00 per week at the time of the award. It is our view that the maximum award available to Thomas, and for which the employer could be liable, was fixed at $32.00 per week, as of the date of the last employer-employee relationship between Thomas and the appel-lee. We think this view comports with our decisions in Collier v. Hope Coal Co., Ky., 269 S.W.2d 278, and Thomas v. Crummies Creek Coal Co., 297 Ky. 210, 179 S.W.2d 882, and cases there cited. An increase in the maximum award allowable is a change in the substantive liability as opposed to a change in remedial procedure. Accordingly, the award allowing $38.00 per week instead of $32.00 per week was erroneous.

By an amendment effective June 16, 1960, KRS 342.316(4) now provides:

“(4) In claims for compensation due to the occupational disease of silicosis or any other compensable pneumoconiosis it must be shown that the employee was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death.”

The words “immediately next” did not appear in the statute when Thomas ceased to work in May, 1960. In two recent opinions we have made reference to the effect of KRS 342.316(4) as amended. See Lovell v. Osborne Mining Corporation, Ky., 395 S.W.2d 596, and Chapman v. Eastern Coal Corporation, Ky., 385 S.W.2d 78. In Lovell the employee had had out-of-Kentucky exposure (in West Virginia) which intervened between his last Kentucky exposure and his manifestation of disability. In Chapman no such out-of-Kentucky exposure appeared.

We are now persuaded to the view that the rationale in Chapman v. Eastern Coal Corporation, Ky., 385 S.W.2d 78 was erroneous, although the view we shall more fully explain herein accords with the result reached in Lovell v. Osborne Mining Corporation, Ky., 395 S.W.2d 596.

An examination of KRS 342.316 in its entirety, in light of our decisions in Alva Coal Corporation v. Trosper, Ky., 375 S.W.2d 406; Brock v. International Harvester Co., Ky., 374 S.W.2d 507, and Stephens Elk-horn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504, makes it apparent that the Legislature and this court have taken cognizance of the established medical fact that the last injurious exposure to silicon particles is rarely ever coincident with the first manifestations of disability resulting from silicosis. A literal construction of KRS 342.316(4) would require that any silicosis claimant must be able to show that his exposure had continued to the very day of his disability. We cannot construe the statute as having such a meaning, since to do so would lead to an absurd and unreasonable conclusion. See Commonwealth of Kentucky, Dept. of Highways v. Wilkins, Ky., 320 S.W.2d 125; Kentucky Mountain Coal Company v. Witt, Ky., 358 S.W.2d 517; Jefferson County Board of Election Commissioners v. Russell, Ky., 323 S.W.2d 864; Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (decided May 20, 1966).

In order to give significance to KRS 342.316(4) and reconcile it with KRS 342.-316(3) and the cited decisions of this court, we are impelled to the view that it is only when “injurious exposure” in Kentucky for two years has been interrupted by “injurious exposure” outside Kentucky that KRS 342.316(4) comes into play. We are persuaded that the legislative intent evinced by the cited section of the statute is to guard against an influx of potentially disabled silicotic victims to Kentucky from other states in which they were “injuriously exposed.” That was the factual situation in Lovell v. Osborne Mining Corporation, Ky., 395 S.W.2d 596, and the result in Lovell was in accord with this decision. However, in Chapman v. Eastern Coal Corporation Ky., 385 S.W.2d 78, there was no out-of-state exposure. To the extent that the decision in Chapman v. Eastern Coal Corporation, supra, is in conflict with the views expressed herein, it is overruled.

Finally, appellant asserts that the Special Fund is solely responsible for any compensation due appellee, based upon appellant’s construction of KRS 342.316(13) (a). The basis for this argument is that there is no proof that appellee’s disability resulted from his last exposure while in appellant’s employ. We are not able to accept that contention. There is a complete absence of any proof to remotely suggest that appellee had any injurious exposure except that which he endured while in appellant’s service. The cited statute is not applicable to the case at bar.

The judgment is affirmed in so far as it affirms an award for total permanent disability, and it is reversed in so far as it fixes the rate of compensation at $38.00 per week, with directions to enter a new judgment fixing the rate of compensation at $32.00 per week.

MONTGOMERY, J., dissenting.

      . In Chapman v. Eastern Coal Corporation, supra, the same result could have been reached under KRS 342.316(3), since Chapman’s last injurious exposure occurred more than five years before his disability.

      . Webster’s International Dictionary, 2d Ed., includes in the definitions of “immediately” such expressions as: “without interval of time; without delay; straightway.”


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    James BRYANT et al., Appellants, v. CITY OF DANVILLE, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    James F. Clay and James F. Clay, Jr., Danville, for appellants.
    James G. Begley, Danville, for appellee.
   CULLEN, Commissioner.

Appellants, James Bryant and some of his neighbors, own properties on the shores of Lake Herrington, in Garrard County. They brought this action against the City of Danville alleging that the city, which for years had supplied water from its municipally owned system to the appellants’ properties, was threatening to discontinue the service. The complaint sought a declaration of rights and an injunction against discontinuance of the service. Judgment was entered dismissing the complaint for failure to state a claim upon which relief could be granted. Bryant and his co-plaintiffs have appealed.

The appellants base their claim solely on a contract embraced in a deed of 1924 from appellants’ predecessor in title to the City of Danville. By this deed the grantor, Mrs. Bettie W. Ely, conveyed to the city .64 acre on the Dix River (where it enters Herrington Lake) as a site for a pumping station, and gave the city an easement over another tract of 3.56 acres to run a water line from the pumping station to the edge of the lake (from which point the line would run under the lake to the opposite shore and thence on to the city). The deed contained these provisions:

“The second party also agrees and does hereby grant unto said Bettie W. Ely for the use of her remaining lands five barrels of water per day, to be taken from its system of water pipes which it may lay under this grant, whenever said water is available in its main line pipes, it being understood that the second party will put in a corporation cock, reducing valve and connecting lead pipe but that first party shall furnish and maintain the meter. (Our emphasis.)
“This water right may be assigned by said Bettie W. Ely to the owner of the residue of her lands and shall be treated as an appurtenance thereto.
“Said meter reading to be calculated monthly and any excess water used over said daily allowance of 250 gallons or 5 barrels to be paid for at the standard rates charged the same class of consumers in said city.”

Appellant Bryant is the owner of the main portion of the original Ely lands, in-eluding the piece over which the easement was granted. The other appellants purchased parcels of the Ely lands.

The city constructed a pumping station on the .64 acre tract in 1924 and a large water main from the station across the easement, under the lake, and on to Dan-ville. The main Ely property and the parcels sold off from it were supplied water from the main. This was “raw” water directly from the river. In 1936, after silting problems had developed at the pumping station the city constructed a new pumping station at another place on the lake. Thereafter the original station was no longer used, although for a period of years it was maintained on a standby basis. Finally, in 1954, the original station was completely abandoned and the city reconveyed to Bryant’s immediate predecessor in title the .64 acre tract and the easement rights obtained in the 1924 deed.

From 1936 until the time this lawsuit was brought the water supplied to the appellants’ properties came from the city’s filtering plant, some miles away toward Danville. The pipe running from the original pumping station across the easement and under the lake was no longer a source of supply to the city but was simply a delivery facility for servicing customers. The appellants paid for the water the same as other customers. The pipe from the pumping station to the other side of the lake served no one other than the appellants.

The instant controversy was initiated when the city discovered that the pipe beneath the lake had developed a substantial leak, causing the loss of thousands of gallons of water per day, and the city announced plans to close the pipe off at a point across the lake from the appellants’ properties, thus terminating their service.

We think it is perfectly obvious that the parties to the 1924 deed never dreamed of the water’s running over the easement in any direction other than from the original pumping station. They were contracting for water service from the then immediate source of supply. They had in mind that so long as the Ely lands were to be burdened with a facility for a public water service the occupants of the lands should receive water also. But when the original pumping station was discontinued the pipe across the easement ceased to be a facility for public water service; it ceased to be a “main” and was relegated to the status of a lateral serving only the Ely properties. The city no longer derived any benefit from the continued use of the easement other than what benefit might be considered to arise from the opportunity to sell water to the Ely properties, and that cannot be considered to outweigh the benefit to the occupants of the Ely properties from having water available to buy.

The contract did not require the city to see that water always was available in the pipe across the Ely lands. It required the city only to supply water to those lands when it was available. This plainly meant available from the pumping station on its way to the main city system; not pumped back from the main city system towards the station.

It is plain to us, and we think the parties all understood, that after the discontinuance of the pumping station, or at least after the complete abandonment of the station and the reconveyance of the easement, the contract was dead and the status of the appellants became simply that of normal, noncontractual consumers. They received water because the city chose to supply it to them — not because they had any remaining rights under the 1924 contract.

The appellants seek to make some point of the fact that the city as late as January of this year undertook to exercise dominion over the pipe that runs over the Ely lands, by digging around it. The city at that time was looking for the leak that was causing the substantial loss of water. The pipe in question served several of its consumers (the appellants). The city’s efforts to find a leak in that pipe in no way change the fact that the city does not have in the pipe the “available” water that was contemplated by the 1924 contract.

It is our conclusion that the appellants do not have any right arising out of the 1924 contract to continued water service from the city, and that the circuit court correctly dismissed the complaint.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    James Edward ROARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.

      James Edward Roark, pro se.
    Robert Matthews, Atty. Gen., Joseph Eckart, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

In this proceeding under RCr 11.-42 appellant’s motion was overruled without a hearing. The grounds of the motion were (1) appellant was denied a preliminary hearing, and (2) he has newly discovered evidence relating to the issue of guilt. On the first ground there is no intimation of prejudice; on the second ground there is no suggestion of the nature of the newly discovered evidence.

Appellant contends he was entitled to an evidentiary hearing because the Commonwealth filed no response to the motion. Since the motion on its face did not present a ground on which relief could be granted, no response was necessary.

The lack of a preliminary hearing did not deprive appellant of any constitutional rights. See Carson v. Commonwealth, Ky., 382 S.W.2d 85; Yates v. Commonwealth, Ky., 386 S.W.2d 450; Walker v. Commonwealth, Ky., 386 S.W.2d 452; Warner v. Commonwealth, Ky., 386 S.W.2d 455; Commonwealth v. Watkins, Ky., 398 S.W.2d 698.

Newly discovered evidence relating to the issue of guilt has not been recognized as a ground for granting relief under RCr 11.42. Johnson v. Commonwealth, Ky., 391 S.W.2d 365; Fannin v. Commonwealth, Ky., 394 S.W.2d 897; Bell v. Commonwealth, Ky., 395 S.W.2d 784. The Supreme Court case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 770, does not require a change of view. Nor does the motion present facts which would justify the granting of coram nobis relief. See Wallace v. Commonwealth, Ky., 327 S.W.2d 17.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Willie ALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, L. D. May, May & May, Pikeville, Foster J. Collis, Jackson, for appellant.
    Earl R. Cooper, Marcus Mann, Salyers-ville, C. Kilmer Combs, Ashland, for ap-pellees.
   WILLIAMS, Judge.

For the purpose of constructing a portion of the Mountain Parkway, the Commonwealth condemned 5.27 acres of appellees’ land in Magoffin County. On the land taken was appellee Allen’s residence, a garage with a cellar and utility room attached, a large barn and a chicken house. In fact, all the improvements were taken. Appellee was left with 33.73 acres, mostly hill land, and divided by the highway. A Magoffin Circuit Court jury returned a verdict of $18,000 difference between the before and after value of the property.

Appellant argues that the verdict of $18,-000 was so palpably excessive as to strike one at first blush that it was given under the influence of passion and prejudice and in complete disregard of the evidence and instructions. The witnesses for the Commonwealth testified the difference in the before and after value was approximately $10,000, whereas the witnesses for the landowner set the figure at a high of $23,000. Witnesses for both sides were qualified to the satisfaction of the trial court, and no valid objection was made to the final conclusions reached by any of them.

Although the award of the jury was very generous, it was within the scope of the testimony offered, and we are unable to say that it was given under the influence of passion and prejudice and in disregard of the evidence and instructions.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Boyd L. BOGGS et al., Members of the Laurel County Fiscal Court et al., Appellants, v. Wayne REEP et al., Individually and as Members of the Laurel County Free Public Library, Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.

      Coleman D. Moberly, London, for appellants.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, Charles R. Luker, Jr., London, for appel-lees.
   WADDILL, Commissioner.

This action was commenced by the ap-pellees, as individuals and as trustees of the Laurel County Public Library District, to compel the appellants, Laurel County Fiscal Court and its individual members, to levy a tax of ten cents on each one-hundred dollars worth of property assessed for local taxation pursuant to KRS 173.720. In their answer .appellants concede that appellees complied with the provisions of KRS 173.720 to organize a library district for Laurel County but alleged that the statute is unconstitutional. The trial court held the statute did not violate the Constitution of Kentucky and ordered appellants to levy the prescribed tax.

On this appeal it is contended that the statute is unconstitutional in that it permits the 50‡ limitation imposed by Section 1S7 to be exceeded; it permits establishment of a taxing district without a vote of the people, contrary to the intent of Section 157; it requires the levying of taxes for purposes of local concern contrary to Section 181 as interpreted, and, because of the subsequent enforcement of the full assessment requirement of Section 172, this tax will be confiscatory.

The statute in question (KRS 173.720) was enacted by the 1964 General Assembly and provides:

“Districts shall be organized in the following manner:
“(1) Upon the filing of a duly certified petition of fifty-one percent or more of the number of duly qualified voters who voted in the last general election in each county to be included within the territorial limits of the proposed district, the fiscal court of each county in the proposed district shall adopt a resolution ordering the levy of a tax of not more than twenty cents on each one hundred dollars worth of property assessed for local taxation. Such petition shall be filed with the fiscal court in each county in the proposed district not later than ninety days after the date of the first signature on the petition. A certified copy of the order of the fiscal court shall be filed within thirty days with the county court clerk who will add the levy to the next annual tax bill of the county or counties concerned.”

Subsections (2) and (3) prescribe the form of the petition. Subsection (4) provides:

“(4) All special ad valorem taxes authorized by KRS 173.710 to 173.800 shall be collected in the same manner as are other county ad valorem taxes in each county affected and shall be turned over to the board as the governing body of the district. The special ad valorem tax shall be in addition to all other ad valorem taxes.”

Considering the various grounds of unconstitutionality in the order presented, we first observe that Section 157 of our state constitution, insofar as pertinent to appellants’ argument, provides:

“The tax rate of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates * * * for counties and taxing districts, fifty cents on the hundred dollars * *

Laurel County is presently levying the maximum tax permitted it under this Section. It is contended that KRS 173.720 violates this Section by increasing the county tax to an amount in excess of the maximum allowable. However, KRS 173.715 recognizes that a library district has the power to tax and under KRS 173.720 the county merely collects the tax as agent of the library district. Hence, it is manifest that the library tax is not a part of the county tax within the prohibition of Section 157 but is a tax levied by a new authorized taxing district created pursuant to statutory authority. In City of Covington v. District of Highlands of Campbell County, 113 Ky. 612, 68 S.W. 669, in considering a similar objection, it was stated:

“We are not prepared to say, however, that the creation of taxing districts, * * *, is contrary to the spirit or to any express provision of the present constitution. * * *, general provision for such form of government [a taxing district], to be applied to particular localities, dependent upon a compliance with some general statute upon that subject, is quite clearly permitted.”

We conclude that KRS 173.720 does not contravene Section 157 as to the maximum tax allowed. Cf. Lambert v. Board of Trustees of Public Library, 151 Ky. 725, 152 S.W. 802.

It is next contended that since Section 157 does not permit an indebtedness in excess of the taxing authority’s annual revenue without a vote of the people, a taxing district cannot be created without such a vote. The analogy is indeed strained. The questioned statute in nowise creates or even contemplates creation of an indebtedness of any taxing authority. We have previously observed that districts for specific purposes may be created without the consent of the residents affected. Cf. Fraley v. Beaver-Elkhorn Water District, Ky., 257 S.W.2d 536; Rash v. Louisville & Jefferson County Metro. Sewer District, 309 Ky. 442, 217 S.W.2d 232. See also 63 C.J.S. Municipal Corporations § 1360. We conclude that the method of establishing a library district is reasonably suited to its purpose and does not contravene Section 157.

The third argument relates to an alleged violation of Section 181. A library is not of local concern and therefore the inhibition of Section 181 is not applicable. Board of Trustees, Newport Public Library v. City of Newport, 300 Ky. 125, 187 S.W.2d 806; also see Board of Trustees of P. & F.R.F. of City of Paducah v. City of Paducah, Ky., 333 S.W.2d 515.

Finally it is contended that the tax levied for the library district is confiscatory because full assessment under Section 172 will produce revenue nearly five times greater than that contemplated for library needs. However, KRS, Chapter 132 (as amended in 1965) restricts tax rates to revenues collected during 1965. Although the library tax was not collected in 1965, it is clear that it would have been but for the unauthorized refusal of appellants to levy it. The amount that would have been collected in 1965 establishes the compensating tax rate provided in Chapter 132. We hold that the provisions of this Chapter govern the tax to be collected for the Laurel County Library District.

The judgment is affirmed.

      . Both cases were overruled on another aspect in McClellan v. Louisville Water Co., Ky., 351 S.W.2d 197.


author: POPE, Justice.

text:
    D. H. ARNOLD et al., Petitioners, v. CROCKETT INDEPENDENT SCHOOL DISTRICT, Respondent.
    No. A-10824.
    Supreme Court of Texas.
    May 18, 1966.
    Rehearing Denied June 29, 1966.
    Adams & Cranberry, Crockett, for petitioners.
    Jack McCreary, Mitchell & Gilbert, Austin, for respondent.
   POPE, Justice.

Crockett Independent School District sued D. H. Arnold and others for recovery of delinquent taxes for the years 1959 through 1962 and for the foreclosure of tax liens upon real and personal property. The trial court, without a jury, awarded judgment for the School District and the Court of Civil Appeals affirmed that judgment. 389 S.W.2d 608. Two questions are presented by this appeal. The first is whether the judgment of foreclosure is void because it does not describe the properties in such a manner that they can he located and identified with reasonable certainty. The second question is whether the taxpayers are estopped to question the descriptions used in the assessments and judgment since they previously furnished the tax assessor the descriptions about which they now complain. The judgments of the courts below are reversed in part and affirmed in part.

The taxpayers, in rendering their property in 1958, described each separate tract but grouped several tracts together in schedules. They did not furnish a rendition for the years 1959 through 1962. For those years the assessor used the taxpayers’ descriptions and methods and made his assessments in bulk as to all the tracts within each schedule. The judgment of the trial court also followed and used the descriptions and method employed by the taxpayers and the assessor by grouping the tracts into schedules. Schedules I, II, III, IV, X, and XI present no problem, since the descriptions of the several properties included in those schedules are adequate. We affirm the judgment for delinquent taxes and foreclosure with respect to those schedules. Schedules V, VI, VII, VIII, IX,'XII, XIII, XIV, and XV each contain several tracts of land which are adequately described as well as other tracts that are so defectively described that they cannot be located by the descriptions in the judgment or elsewhere in the record. The descriptions in some instances fail to locate a tract within a city or platted subdivision. Moran Corporation v. Brashear, 339 S.W.2d 557 (Tex.Civ.App.1960, writ ref.). Other descriptions are of small tracts that are unlocated with respect to larger tracts of which they are a part. Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599 (1948); Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946).

The general rule is that a judgment for foreclosure of a tax lien upon real estate which, though aided by the judgment roll, fails to describe a definite tract of land is void. Adams v. Duncan, supra; Greer v. Greer, supra; Devine v. Keller, 73 Tex. 364, 11 S.W. 379 (1889); Moran Corporation v. Brashear, supra. Many of the descriptions do not satisfy that rule.

School District urges that the taxpayers are estopped to question the descriptions because they supplied both the descriptions and schedules which the district used in making the assessments. A taxpayer may be estopped from attacking the assessments when the assessor adopts the descriptions and methods used by the taxpayer. Electra Independent School District v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645, 649 (1943); Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); French Independent School District of Jefferson County v. Howth, 134 Tex. 211, 134 S.W.2d 1036 (1940); State Mtg. Corp. v. Ludwig, 121 Tex. 268, 48 S.W.2d 950 (1932); McMahan v. State, 147 S.W. 714 (Tex.Civ.App.1912, writ ref.). The reason for the rule is that a taxpayer’s inadequate description, together with his own knowledge, makes known to him the property that is assessed and he is not misled. McMahan v. State, supra; Scollard v. City of Dallas, 16 Tex.Civ.App. 620, 42 S.W. 640 (1897, writ ref.); Denman v. State, 85 S.W.2d 252 (Tex.Civ.App.1935, no writ); Grace v. City of Bonham, 26 Tex. Civ.App. 161, 63 S.W. 158 (1901, writ ref.).

The question presented is not, however, whether the assessments are valid. Our problem is whether the judgment of foreclosure is void because it does not describe the properties upon which the tax liens are ordered foreclosed. A judgment establishing and ordering foreclosure of a tax lien produces consequences which concern or may concern rights of persons other than the taxpayer, and a different rule applies in testing the sufficiency of the description in the judgment. An estoppel does not supply the descriptive data essential to a judgment of foreclosure of a tax lien. This difference between the requirement for assessments and judgments is explained in Garza v. City of San Antonio, 231 S.W. 697, 700 (Tex.Comm.App. 1921). Accord: Denman v. State, 85 S.W.2d 252 (Tex.Civ.App.1935, no writ). We hold, therefore, that the judgment contains land descriptions that are so defective that the land can not be located or identified; and, as to those lands, the judgment of foreclosure is void.

Our disposition of the case presents a further problem. Included in each of the questioned schedules are some tracts which are adequately described and other tracts which are not. The judgment fixes the tax liability and the lien in bulk for taxes owing on all the tracts within a schedule. Some unknown and indistinguishable amount of taxes allocable to un-described lands is included in the schedules. The void portion of the judgment can not be severed from the valid portion. We must reverse as to the entire schedules.

In W. T. Waggoner Estate v. Electra Ind. School Dist., 157 S.W.2d 721, the Court of Civil Appeals reversed a judgment of the trial court because the judgment foreclosing a lien on certain town lots failed to describe the lots. The cause was remanded with instructions to the trial court to render judgment for the taxes as it had previously done but also to hear evidence and describe the lots. The Supreme Court, though modifying a portion of the judgment of the Court of Civil Appeals, affirmed that part of the judgment relating to the town lots but also instructed the trial court to describe the property in the judgment. 140 Tex. 483, 168 S.W.2d 645, 648. It is our opinion that this case should be disposed of in the same manner.

The cause of action with respect to Schedules I, II, III, IV, X, and XI is severed from the remainder of the suit, and as to those schedules the judgments of the courts below are affirmed. That part of the judgment which foreclosed tax liens upon property listed in Schedules V, VI, VII, VIII, IX, XII, XIII, XIV, and XV is reversed and the cause is remanded to the trial court for another trial with instructions that the court receive proof of the properties which the taxpayers rendered and describe the properties with such certainty in the judgment that they can be located and identified.

      . Schedule V of the judgment illustrates the problem:

      “Lots 1, 2, 3, 4, in Block 1, Depot Addition, Crockett, Texas
      “Abstract 423, A. E. Gossett Survey E ⅛ of SE Pt. Outlot 83
      “Abstract 423, A. E. Gossett Survey N ⅜ of SE Pt. of Outlot 83
      “Abstract 423, A. E. Gossett Survey W ⅝ of SE Pt. of Outlot 83
      “Lot 1-B of the Wooters Second Addition to town of Crockett
      “Abstract 1360, J. H. Painter Survey, 14.60 acres
      “Lot 1 in Wooters Second Addition to town of Crockett, Houston County, Texas
      “Abstract 926, Levi Speer Survey, 4.9 acres
      “Abstract 926, Levi Speer Survey, 60 acres
      “Abstract 926, Levi Speer Survey, 68 acres
      “Abstract 896 Henry Renfro Survey, 160 acres
      “Personal property assessed to D. H. Arnold, consisting of cattle
      “PROPERTY YEAR TAX PENALTY & INTEREST
      “Real and personal property described above 1969 §703.44 §239.17
      1960 703.44 196.96
      1961 743.34 163.54
      1962 743.34 118.93
      §2,893.56 §718.60.’


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

text:
    Frank R. ROJAS, Appellant, v. The STATE of Texas, Appellee.
    No. 39635.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied June 22, 1966.
    Emmett Colvin, Jr. (appointed counsel), Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stinson, Jr., Scott Bradley and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Appellant was convicted, upon a. plea of guilty, of the felony offense of driving while intoxicated, and his punishment was assessed at five months confinement in jail.

The trial was on February 3, 1966, and governed by the provisions of the Code of Criminal Procedure of 1965, which became effective January 1, 1966. Appellant, being arraigned (Article 26.01, Vernon’s Ann.C. C.P.) for the purpose of fixing his identity and hearing his plea (Article 26.02, V.A. C.C.P.) and having been admonished by the court (Article 26.13, V.A.C.C.P.), persisted in pleading guilty (Article 26.14, V.A.C.C. P.). A jury was duly selected, impaneled and sworn in the case. Appellant’s having entered a plea of guilty to the indictment, evidence was presented, and the jury was then instructed by the court to find appellant guilty.

Appellant objected to the court’s charge on the ground that it failed to authorize the jury to assess punishment. The objection was overruled.

We need go no further than this point in order to properly dispose of this case. In overruling the objection, the court was proceeding under Article 37.07, V.A.C.C.P. It is appellant’s contention that he should have proceeded under Article 26.14, V.A. C.C.P.

Article 37.07, supra, by its terms applies to pleas of not guilty alone.

Article 26.14, supra, provides:

“Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment, and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”

When the time came for the judge to charge the jury in accordance with the terms of Article 26.14, supra, the defendant had not waived the right to trial by jury in accordance with Article 1.13, supra, and nothing had occurred during the trial to cause the plea of guilty to be withdrawn.

In cases where Article 37.07, supra, is applicable the time for waiving the right to have the jury assess the punishment does not arrive until such jury has found the defendant guilty, hence it cannot be said that appellant had waived such right “in accordance with Article 37.07.”

To the contrary, he objected to the court’s charge because the question of punishment was not submitted to the jury.

A former draft of the Code had made provisions for election prior to the selection'of the jury. This, and the possibility that the plea of guilty may be withdrawn during the trial, may explain the reference to Article 37.07 in Article 26.14.

It therefore follows that the trial court reversibly erred when he did not submit the question of punishment to the jury in accordance with the terms of Article 26.14, supra, as requested by the appellant.

The judgment is reversed, and the cause is remanded.

DISSENTING OPINION

McDONALD, Presiding Judge.

The majority opinion correctly recites the sequence of events in this cause, and I shall not restate them other than to mention that the jury retired to consider their verdict, after appellant’s objection was overruled, and returned a verdict into court finding appellant guilty as charged.

After the return of the verdict, the court inquired: “Does the defendant elect for the Court or for the Jury to assess the punishment?” Counsel for appellant responded with the following statement: “As I understand the Article, your Honor, we do not make an election. The Court assesses the punishment. We do not make an election.”

The jury was discharged and the court proceeded to hear evidence on the question of the punishment to be assessed in the case. Appellant objected on the ground that the court was erroneously proceeding under Art. 37.07 of the Code of Criminal Procedure, which is “inapplicable to all cases except those cases involving capital offenses or wherein the accused had plead not guilty.”

At the hearing before the court it was shown by stipulation of the parties that appellant had been previously convicted of a misdemeanor offense of drunken driving (not alleged in the indictment) and also of a felony offense of drunken driving. Appellant, by such stipulation, did not waive his objection to the admissibility of the evidence but again renewed his objection, on the ground that Art. 37.07 “has no application to this cause, in that the defendant has plead guilty,” and made further objection to the evidence of the misdemeanor conviction on the ground that it was for “a crime not involving moral turpitude” and “not encompassed even within Art. 37.07.”

After hearing the evidence, the court fixed appellant’s punishment at five months in jail and pronounced sentence in the cause.

Two grounds of error are presented by appellant in his brief filed in the trial court in support of his motion for a new trial.

The first ground urged is, in substance, that the court erred in utilizing the alternate procedure provided by Art. 37.07 of the code in determining appellant’s guilt and the punishment to be assessed, for the reason that such article has no application to a felony case where the plea is “Guilty.”

The second ground is that, for the same reason, the court erred in permitting evidence to be offered of appellant’s prior criminal record. It is also urged that if Art. 37.07, supra, were applicable to the case the court erred in admitting evidence of the prior misdemeanor conviction for driving while intoxicated, which is an offense not involving moral turpitude. It is insisted that the phrase, “prior criminal record,” used in Art 37.07 does not encompass misdemeanor offenses not involving moral turpitude.

To pass upon the errors urged by appellant it is necessary to consider certain articles of the Code of Criminal Procedure.

Art. 37.07 of the code reads, in part, as follows:

“Verdict must be general; separate hearing on proper punishment
“(1) The verdict in every criminal action must be general. When there are special pleas on which a jury is to find, it must say in its verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, it must find that the defendant is either guilty or not guilty.
“(2) Alternate procedure.
“(a) In felony cases less than capital and in capital cases where the State has made it known that it will not seek the death penalty, and where the plea is not guilty, the judge shall, before the argument begins, first submit to the jury the issue as to the guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed; provided, however, that in the charge which submits the issue of guilt or innocence there shall be included instructions showing the jury the punishment provided by law for each offense submitted.
“(b) If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense charged where the same is not absolutely fixed by law to some particular penalty except when the defendant, upon the return of a finding of guilty, requests that the punishment be assessed by the same jury. In the event the defendant elects to have the jury fix the punishment in cases where the punishment is fixed by law, the court shall instruct the jury that if they find the defendant is the same person who was convicted in the prior conviction or convictions alleged for enhancement, they should set his punishment as prescribed by law.
“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”

Art. 26.14 of the code reads as follows:

“Jury on plea of guilty
“Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment Is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 and 37.07 shall have waived his right to trial by jury.”

Art. 1.13 of the code reads, in part, as follows:

“Waiver of trial by jury
“The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. * * * ”

It is apparent to the writer, from reading the above statutes, that it was the intention of the legislature to provide for an alternate procedure, in certain felony cases, whereby there would be a separate determination of the guilt of an accused and the punishment to be assessed.

Upon a finding of “Guilty,” it becomes the responsibility of the judge to assess the punishment except where the defendant requests that the punishment be assessed by the same jury.

Regardless of whether the punishment be assessed by the judge or by the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation, and his character.

While Art. 37.07 refers only to certain felony cases where the plea is “Not guilty,” I think that such article — when read in connection with Art. 26.14 of the code — is also applicable to cases where the plea is “Guilty.”

Art. 26.14, by its own terms, applies to felony cases where a plea of guilty, or nolo contendere, is entered, and provides that “a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.”

The reference in Art. 26.14 to the waiver of a trial by jury, in accordance with Art. 37.07, clearly evidences an intention of the legislature that the provisions of Art. 37.07 shall be applicable to felony cases where there is a plea of guilty.

The writer thinks that Art. 37.07 is applicable to felony cases enumerated therein where a plea of guilty has been entered by the accused.

In the instant trial, appellant waived his right to have the jury assess the punishment, and it became the responsibility of the trial judge, since appellant did not request the jury to assess his punishment.

I would overrule ground of error #1.

I would also overrule appellant’s ground of error #2.

The prior misdemeanor conviction for driving while intoxicated, although not for an offense involving moral turpitude, was admissible as a part of appellant’s “prior criminal record,” under the provisions of Art. 37.07, I think.

To be admissible under this provision of the statute it is not necessary, in my judgment, that the prior misdemeanor conviction be for an offense involving moral turpitude, as would be required if it were offered for the purpose of impeachment under Art. 38.29 of the code.

I dissent to the reversal and would affirm the judgment.

OPINION ON STATE’S MOTION FOR REHEARING

WOODLEY, Judge.

It has been the statutory law of this state since the Original Code that where a defendant in a felony case persists in pleading guilty, and the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon. O.C. 476, Art. 502 C.C.P.1925, Art. 26.14 C.C.P.

As early as 1885 the Court of Appeals held that such provision was mandatory and said:

“It is not a provision, insofar as it requires evidence to be submitted, which is intended solely for the benefit of the defendant. It is intended, also, and more especially, to protect the interests of the State, by preventing aggravated cases of crime to be covered up by the plea of guilty, so as to allow the criminal to escape with the minimum punishment fixed by law.” (Harwell v. State, 19 Tex.App. 423)

In view of the state’s concern as to the effect of the majority opinion in future trials, before the Legislature has the opportunity to amend the admittedly ambiguous statutes, it is deemed proper that we express our views as to the effect of the separate paragraph found in Art. 37.07, Sec. 2(b), which reads:

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant' as to the prior criminal record of the defendant, his general reputation and his character.”

The prior decisions of this court have been that a jury called to assess the punishment upon the defendant’s plea of guilty to the crime charged may not receive or consider evidence of other offenses unless admissible under the usual rules applicable to criminal prosecution where the plea is not guilty. Carroll v. State, Tex.Cr.App., 365 S.W.2d 786; Salinas v. State, 146 Tex.Cr.R. 358, 175 S.W.2d 253; Williams v. State, Tex.Cr.App., 215 S.W.2d 627; Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869; Hopkins v. State, Tex.Cr.App., 68 S.W. 986.

The decisions mentioned do not appear to follow the majority view. 96 A.L.R.2d 815.

Unlike eases where evidence as to extraneous offenses may deprive a defendant of his right to a fair trial on the issue of guilt, no constitutional question or statutory construction was involved in the Texas cases above cited. The reason assigned was that such evidence was not legitimate or was not competent.

Since the enactment of the above quoted portion of Art. 37.07, Sec. 2(b) C.C.P., our prior opinions holding that similar evidence is not legitimate, competent or admissible before a jury impaneled under Art. 26.14 to assess the punishment are no longer applicable or controlling.

The Legislature has not seen fit to adopt the procedure used in most jurisdictions whereby the judge, after pre-sentence investigation and report, assesses the punishment, but has through Articles 26.14 and 37.07, in a large measure, accomplished their purpose and intent “to take the blindfold off” of the jury that has the responsibility of assessing the punishment.

1. Art. 1.13 furnishes a procedure whereby the punishment must be assessed by the court without the benefit of evidence such as provided for in Art. 37.07, Sec. 2(b). (This is so because Art. 1.15 requires that the evidence introduced showing the guilt of the defendant be accepted by the court as the basis of its judgment.)
Without the consent and approval of the court and the attorney representing the state, the defendant may not waive a jury under Art. 1.13.
2. The alternate procedure provided for in Art. 37.07, Sec. 2, C.C.P., whereby: “the issue as to guilt or innocence of the defendant is first submitted to the jury without authorizing the jury to pass upon the punishment to be imposed,” is not applicable where the case is submitted to the jury on .a plea of guilty, or in a capital case where the state is seeking the death penalty, and the punishment in such cases must be assessed by the jury and not by the judge.
3. Art. 26.14, as construed in the majority opinion on original submission, furnishes the only procedure whereby the attorney representing the state may require that the punishment be assessed by a jury. It applies where the defendant persists in pleading guilty to a felony and the jury is instructed to find him guilty.
4. In view of the provision of Art. 37.07, Sec. 2(b), evidence may now be offered before a jury impaneled to assess the punishment “as to the prior criminal record of the defendant, his general reputation and his character,” whether such jury is impaneled pursuant to Art. 26.14 or after the jury verdict of guilty has been returned.
5. A conviction for the misdemeanor offense of drunk driving other than that alleged in the indictment is admissible at either such trial as a part of the defendant’s prior criminal record.

In further support of our holding that the trial court erred in declining to submit to the jury the question of the punishment to be assessed, we point out that some of the provisions of Art. 36.01 cited by the state cannot be followed in a trial on a plea of guilty where the jury is impaneled to assess the punishment.

Section 5 of said Article provides:

“The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel.”

Section 5 could not apply to a trial on a plea of guilty. If a defense was offered at such a trial it would be the duty of the court to withdraw the plea of guilty.

Section 8 provides:

“In the event of a finding of guilty, Ae trial shall then proceed as set forth in Article 37.07.”

This provision is consistent with the express provisions of Art. 37.07 applicable to trials where the plea is not guilty.

If it was the intention of the Legislature that the alternate procedure provided in Art. 37.07 should apply where the plea is guilty, why did they not say so in said Article instead of saying “and where the nlea is not guilty * * .” ?

The state’s motion for rehearing is overruled.

CONCURRING OPINION ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

It appears from the State’s motion for rehearing that they have misconstrued the majority opinion. It should be noted that we said, “We need go no further than this point to dispose of this case.”

While I agree with the result reached by Brother Woodley, I would not gratuitously castigate the Legislature, and I do not agree with him that they should amend the Code which they so recently enacted. The interpretation we here give the same renders any amendment unnecessary.

I would, however, call attention, which he has failed to do, to Sec. (f) of Article 37.07, V.A.C.C.P. which reads: “Nothing herein shall be construed as affecting the admissibility of extraneous offenses on the question of guilt or innocence.”

We are here holding, as I see it, that where a plea of guilty is before the jury there is no reason or necessity for a separate trial as to punishment, and the trial court should proceed in an orderly manner, hearing both the evidence as to accused’s guilt of the primary offense and evidence to his prior criminal record, his general reputation and character, but not receive evidence of extraneous offenses unless they form a part of his prior criminal record.

I agree that the State’s motion should be overruled.

DISSENTING OPINION

McDONALD, Presiding Judge.

I dissent to overruling the State’s Motion for Rehearing for the reasons stated in my dissenting opinion on original submission.


author: DICE, Commissioner.

text:
    Nelson CHEVALLIER, Appellant, v. The STATE of Texas, Appellee.
    No. 37480.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied April 21, 1965.
    Certiorari Denied June 20, 1966.
    See 86 S.Ct. 1933.

      Will Gray, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

The conviction is for murder; the punishment, death.

The indictment charged that the appellant "did with malice aforethought kill Castina Nelson by pouring caustic soda, commonly known as lye, in her mouth and down her throat.”

The state’s evidence shows that appellant and the deceased, Castina Nelson, though not legally married, lived together as husband and wife.

During the early morning hours of January 21,1964, the deceased came to the door of a neighbor’s house in her nightgown and with blood oozing from her mouth. The deceased, being unable to talk and having the appearance of being burned about the face and mouth, was taken to a hospital in an ambulance and died some ten days later.

When examined at the hospital by Dr. V. F. Mersol, the deceased had burns over her face, scalp, and shoulder, burns in the mouth, tongue, and pharynx, and, in addition, a stab wound in the neck. The burns found on the body were described by the doctor as being “compatible with someone taking caustic soda, lye, and pouring it into the mouth and down the throat of a person.”

An autopsy performed upon the body of the deceased by Dr. Robert Bucklin revealed that the cause of death of the deceased was pneumonia resulting from chemical burns to the tongue, mouth, throat, respiratory tract, gastro-intestinal tract, and lungs. It was shown by the testimony of Dr. Bucklin, also, that the burns to the mouth, lips, tongue, and respiratory tract of the deceased were “compatible with burns left by some substance such as caustic soda,” also known as lye.

It was further shown that before the deceased was taken to the hospital, certain city officers came to the neighbor’s house and then proceeded to the residence of appellant and the deceased. When they entered the house, the officers detected a strong odor of gas and discovered a gas hose pulled away from a connection in the living room and the gas turned on. Upon entering the back bedroom, the officers found it very much disarranged and the gas on in that room. Two other gas jets, one in the bathroom and the other in a front bedroom, were found open. In the bathroom the officers found blood, hair, and dirty clothes on the floor. There were also smears of blood on the bathtub and on the windowsill of a partially opened window. The officers also found in the bathroom a knife with blood stains on it and found a can on top of a shelf. A piece of electric wire which appeared to have been cut from an extension cord was found in a front bedroom.

While the officers were in the house the telephone rang and a person whose voice was identified as appellant’s talked to one of the officers. In the conversation appellant stated: “ T guess you all are looking for me. * * * I’m Nelson Chevallier,’ ” and when asked what happened appellant told the officers that he and his wife had a fight, that he slapped her and cut her with a knife. Appellant stated that he then turned on the gas, disconnected the hoses to the heaters and poured lye on his wife. In the conversation, appellant gave the officers the address where he could be located.

Subsequent to the conversation, appellant was taken into custody at the address given and, following his arrest and after being duly warned, made and signed a written statement in which he admitted committing the acts of violence upon his wife which caused her death.

In his confession appellant stated, in part, as follows:

“Tonight about 1:30 or twenty _ till two I Got up from the front bedroom, where I had been sleeping, and went to the kitchen and got me some water. After I got me a drink I went into Castinas bedroom on the way to the bathroom. Caste.ua was asleep in the back bedroom. She started sleeping in the back bedroom since Sunday night. We had a_argument Sunday because Castina brought up a woman that I used to go with in New Orleans. Since this she has been sleeping in the back bedroom and I have been sleeping in the front bedroom. After I went thru Castinas bedroom and into the bathroom I turned on the light in the bathroom and that woke Castina up. When she woke up she started in on me telling me that I could’nt sleep because I was thinking about Jesse, the woman that I used to go with in New Orleans. When she said this I picked up a piece of extention cord that was in the bathroom and went into her bedroom and hit her with it. I told her that she was always bringing that up and I told her that I had told her before that stuff like that is going to get you killed. Then me and her went to tussling. Then she promised me that she would’nt say that any more. Then I knocked her down in the bathroom door [sic] and she still had a1hold of me. Then I grabbed my knife off of the shelf in the bathroom and stabbed her in the neck, I’m not sure how many times I stabbed her but I know that I stabbed her once for sure. Then I set down on the side of the bathtub and I saw that she was still bleeding and suffering and I told her I might as well go ahead and finish you off because I haven’t ever had nothing but trouble out of you. I told her that she just wanted to use me. She did’nt answer me. Then I went to the kitchen and got some lye and made some lye water. I put two spoonfuls of lye into about a third of a glass of water and went back into the bathroom and poured it on her mouth. After this I went into the front bedroom and set on the bed and thought. After I thought for a few minutes I thought to myself ‘Well by the time that they find you you’I be dead’. Then I got up and went into the living room and took the hose off of the heater and turned on the gas. Then I went to the backbedroom and turned on the gas jet. There is no heater in the backbed room so I did’nt have to do any disconnecting. Then I went thru the bathroom. I don’t remember if I turned on the gas in the bathroom or not. I do remember that the heater in the bathroom was turned over while we were scuffling. After I turned on the gas I went in my bedroom and put on my clothes. During the fight I had on my pajamas, and went into the living room and set down for about five minutes thinking. I thought well they’l^find her so I had better try to get away. * * * I then went to my .Aunt’s phone and called back to the house on Alabama and talked to the officers. At first I told the officer that I was at Lyons Avenue and Dan St. I told the Officer that he could pick me up there if they wanted me. While I was talking on the phone my Aunt heard me and started crying. I then asked my uncle what the address was and he told me 1813 Dan St. I then told the officer that I was talking to that I would be waiting for them and that I would turn the light on. After a short wait I saw a police ear pull up in front of the house. I opened the door and told the officers that I was coming. I got me a drink of water and left the house and met the officers.”

It was further shown that an analysis made by Chemist Robert F. Crawford of the substance in the can found in the bathroom of appellant’s residence revealed that the can contained sodium hydroxide, which the chemist testified is also known as caustic soda and commonly known as lye. Chemist Crawford testified that two spoonsful of lye in a third of a glass of water would be poisonous and capable of producing death.

Appellant’s defense was that of insanity and in support thereof he called as witnesses, Dr. A. H. Vogt, a psychiatrist, and Charles P. Woodruff, a public school teacher, both of whom expressed the opinion that appellant was a mental defective who did not realize the nature and quality of his ácts.

The state joined issue by calling as witnesses, Dr. David J. Wright, Jr., a psychologist, and Dr. Benjamin Sher, a psychiatrist, both of whom expressed the opinion that appellant was of sound mind and capable of understanding the difference between right and wrong and the nature and consequences of his acts. Lay witnesses were also called by the state who expressed the opinion that appellant was of sound mind.

The court, in his charge, submitted to the jury appellant’s defense of insanity and also the defense of accident.

The jury, in their verdict finding appellant guilty of the offense charged, also found him to have been sane at the time the offense was committed and at the time of trial.

The evidence is amply sufficient to support the verdict and the punishment assessed.

We overrule appellant’s contention that the court erred in denying his motion to quash the indictment, in which it was urged that the indictment was fatally defective in failing to charge him with murder by poisoning, under Arts. 1197-1199 of Vernon’s Ann.Penal Code.

The indictment, as drawn, charges appellant with murder under the general murder statute, Art. 1256, V.A.P.C. While the indictment could have been drawn charging murder under the provisions of Arts. 1197-1199, supra, the state had the right to prosecute appellant under the general murder statute, Art. 1256, supra. Alvarez v. State, 109 Tex.Cr.R. 62, 2 S.W.2d 849; Cooper v. State, 171 Tex.Cr.R. 412, 351 S.W.2d 235.

We also overrule appellant’s contention that the court erred in failing to instruct the jury that before convicting him they must find from the evidence beyond a reasonable doubt that he had the specific intent to kill the deceased.

As heretofore mentioned, the indictment was not drawn under Arts. 1197— 1199, supra. An instruction on specific intent to kill or injure was not required in submitting the case under Art. 1256, supra, in view of the uncontradicted evidence showing appellant’s intent to kill the deceased. Furthermore, the court’s charge on accident was inclusive of any question of intent to kill. Cole v. State, 157 Tex.Cr.R. 469, 250 S.W.2d 201.

Appellant insists that the court erred in permitting the state to offer testimony by the witness Evelyn Levy that two days before the killing the deceased delivered some insurance policies to her and that at such time the deceased was “upset” and told the witness to deliver the policies to Adelene Hebert, a sister of the deceased, over the objection that such testimony was hearsay. The same objection was made to the testimony of the witness, Adelene Hebert, when she stated that she received the deceased’s life insurance policies from Evelyn Levy.

The record reflects that the court sustained appellant’s objection to any testimony of the witness with reference to what the deceased said but overruled the .objection to any testimony with reference to what the deceased did, and instructed the jury not to consider the answer of the witness when she stated the deceased was upset. The only testimony actually admitted by the court over appellant’s objection was that the deceased delivered some insurance papers to Evelyn Levy with instructions that they be delivered to someone, and that they were later delivered to the deceased’s sister, Adelene Hebert. Such actions on the part of the deceased and the witnesses would not come within the hearsay rule, with the exception of that portion of the the testimony that the deceased told the witness Levy to give the policies to someone. We perceive no reversible error in the court’s ruling and in the admission of such testimony.

The contention is urged that the state failed to discharge its burden of proving the allegation of the indictment that the means and instrumentality used in killing the deceased was “caustic soda, commonly known as lye.” It is also contended that the court erred in admitting the can of lye in evidence, as state’s exhibit #8, and the testimony showing the results of an analysis of its contents because the can was not properly identified as the one removed from the bathroom of appellant’s home.

State’s exhibit #8 was identified by Officer Dudley as the can he found in appellant’s bathroom and which he turned over to Officer Muckleroy. Officer Muck-leroy identified the exhibit as the can he recovered' from the scene and testified that he, personally, took the exhibit to the office of the city chemist and toxicologist and delivered it to Chemist McDonald.

Robert F. Crawford, employed by the city of Houston as a chemist and toxicologist, testified that he examined the substance in the can (state’s exhibit #8) and determined that the can contained sodium hydroxide, which is also known as caustic soda, commonly known as lye. Under the evidence, the can was sufficiently identified as the one taken from the appellant’s residence and the content thereof was shown to be caustic soda commonly known as lye, as alleged in the indictment. We are unable to agree that because it was shown that “caustic soda” is a “caustic alkali” the evidence is insufficient to support the allegation of the indictment or that the court erred in refusing to give certain instructions requested by appellant with reference to the means used in causing the death of the deceased.

Error is urged by appellant to certain comments made by the court during the trial.

The first comment was made while Officer Hutchens was testifying on direct examination that the person with whom he had the telephone conversation at the scene was the appellant. When an objection was made by appellant that there was no showing that the witness knew it was the appellant with whom he was talking, the court stated: “There’s no showing it wasn’t [sic]. He said he did.” Upon objection to the court’s comment, the court told the jury: “The jury will not consider any remark of the Court for any purpose,” and overruled appellant’s objection and motion for mistrial.

In view of the court’s instruction to the jury, we find no reversible error.

The other comment of which appellant complains occurred during jury argument.

An examination of the record reflects that appellant made no objection to the court’s comment. Hence, his complaint is not before us for review.

Appellant complains that the court failed to properly instruct the jury on the law" of accident and mistake and apply the law to the facts.

On the question of accident and mistake, the judge instructed the jury as follows:

“No act done by accident or mistake is an offense. Now, therefore, if you believe or have a reasonable doubt thereof that the Defendant, through accident or mistake, poured lye water into the deceased’s mouth, you will acquit the Defendant.”

The instruction amply protected the rights of appellant upon such issue.

Appellant’s remaining contentions are that he was deprived of due process of law under the Fourteenth Amendment to the Constitution of the United States because he was denied a fair hearing and determination on the issue of the voluntariness of his alleged confession, as required by the decision of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 908; and that he was denied his rights under the Fifth Amendment to the Constitution of the United States and compelled to give evidence against himself and was denied his rights, under the Sixth Amendment to the Constitution of the'United States, to the assistance of counsel, contrary to the standards applicable under the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

We have carefully reviewed the record and find that it does not support the contentions urged by appellant.

The record reflects that when the confession was offered by the state, the jury was retired and a hearing was conducted by the court upon the admissibility of the same.

At the hearing, appellant did not question the proof offered by the state as to the voluntary nature of the confession.

Officer C. J. Lofland testified that after giving appellant the legal warning he took the statement from him; that the statement was then reduced to writing and after being read to appellant by Officer Thornton appellant signed it.

The only question raised by appellant at the hearing was whether certain initials, “N. CH,” at the bottom of page one of the confession were his, and the only objection made to the confession was that it had not been shown that the initials were those of appellant and that he had “affirmed” page one of the statement. Such objection was by the court overruled.

Under the record, the court did not err in admitting the confession in evidence, and Jackson v. Denno, supra, has no application.

There is nothing in the record to support appellant’s contention that he was denied the assistance of counsel, as was done in Escobedo v. U. S., supra.

The judgment is affirmed.

Opinion approved'by the Court.


author: HUGHES, Justice.

text:
    FRENSHIP RURAL HIGH SCHOOL DISTRICT, Appellant, v. The CENTRAL EDUCATION AGENCY of the State of Texas et al., Appellees.
    No. 11396.
    Court of Civil Appeals of Texas. Austin.
    May 25, 1966.
    Rehearing Denied June 15, 1966.

      Elmer V. East, Lubbock, Gaynor Kendall, Austin, for appellant.
    Nelson, McCleskey & Harriger, James A. Walters, Johnny R. Phillips, Lubbock, for appellees.
   HUGHES, Justice.

This appeal is from a summary judgment rendered by the trial court sustaining an order of the Central Education Agency of the State of Texas which upheld the disan-nexation of approximately three and one half sections of land from the Frenship Rural High School District, appellant, and the annexation of such land to the Shal-lowater Independent School District. The latter district is located in Lubbock County. Frenship is located partly in Lubbock and Hockley Counties.

This case has wended its way through the school agencies as required by law and has been properly appealed to the courts. No point is made as to any deficiency in these respects and no point is made that the order complained of by Frenship is not supported by evidence or that it is in any respect arbitrary.

The single point made by Frenship.is:

“Point I — The petition for detachment failed to conform to the mandatory requirements of Article 2742f, Vernon’s Civil Statutes, in that it was not limited to a single territory, but instead sought detachment of two separate and distinct territories from Frenship Rural High School District. The order of the State Board of Education, which assumed to require that such multitract petition be granted, was consequently void. The District Court’s Judgment sustaining the order should therefore be reversed, and judgment rendered that the disputed areas are still within the boundaries of plaintiff school district.”

The stipulated material facts are:

1. On or about the 12th day of November, 1963, Berlin Haught and seventeen other signatories filed with the County Board of School Trustees of Lubbock County, Texas, a petition signed by the said Haught et al. as petitioners, praying for detachment of the lands therein described from the Frenship Rural High School District, and for annexation of the lands to the Shal-lowater Independent School District.

2. The lands sought to be detached are described by metes and bounds in the detachment petition. The lands included within the petition do not comprise a single territorial tract, but instead constitute two distinct tracts or territories separated from each other by a distance of approximately one-half mile. Specifically, the lands described in the petition as the South one-half of Section 28, Block JS, Lubbock County (a 320-acre tract owned by Theo Lide, and hereinafter referred to as “territory No. 1”) is not contiguous to, but is physically separated from and one-half mile distant from the other tract or territory described in the petition (embracing Sections 32, SI, 52 and a portion of Section S3, Block P, Lubbock County, and hereinafter referred to as “territory No. 2”). The two territories are separated by intervening lands within Frenship Rural High School District which are not included within the detachment petition.

3. Both territory #1 and territory #2 lie adjacent to and each is contiguous to the common boundary lines separating Frenship Rural High School District and Shallowater Independent School District. Neither territory constitutes (nor do both aggregate) as much as ten per cent (10%) of the area of Frenship Rural High School District, and detachment of both territories would not reduce Frenship Rural High School District to an area of less than nine square miles.

4. Mr. and Mrs. Theo Lide, who signed the petition, constitute a majority of the qualified voters residing within territory #1; they are both over fifty years of age, and their children are all adults. At the time of filing of the petition, and at all times since, no child of, or below, scholastic age has resided within territory #1.

5. Berlin Haught and the fifteen other signers of the petition are residents of the territory #2, and they constitute a majority of the qualified voters residing within territory #2.

Sec. 1 of Art. 2742f, Vernon’s Ann.Tex. Civ.St. provides :•

“Section 1. In each county of this State the County Board of Trustees shall have the authority, when duly petitioned as herein provided, to detach from and annex to any school district territory contiguous to the common boundary line of the two districts; provided the Board of Trustees of the district to which the annexation is to be made approves, by majority vote, the proposed transfer of territory and provided, further, that where the territory to be detached exceeds ten per cent (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached. The petition shall give the metes and bounds of the territory to be detached from the one and added to the other district and must be signed by a majority of the qualified voters residing in the said territory so detached. Upon receipt of the said petition, duly signed, and upon notice of the approval of the proposed annexation by the Board of Trustees of the district to which the territory is to be added, the County Board of Trustees shall pass an order transferring the said territory and redefining the boundaries of the districts affected by said transfer, the said order to be recorded in the Minutes of the County Board of Trustees. Provided that no school district shall be reduced to an area of less than nine square miles.”

Citing Wortham Independent School District v. State ex rel. Fairfield Consol. Independent School Dist., Tex.Civ.App., 244 S.W.2d 838, Waco, writ ref., n. r. e. to the effect that Art. 2742f should be strictly followed failing which the attempted disan-nexation is void, appellant points to the use of the word “territory” in the statute and contends that the singular word does not include the plural of it and that since more than one territory was included within the disannexation petition, the subsequent order of disannexation is void.

We are not in agreement with this contention for the principal reason that Rule (4) of Art. 10, V.T.C.S., provides that in the construction of civil statutes “The singular and plural number shall each include the other, unless otherwise expressly provided.”

It is not expressly provided in Art. 2742f that only one territory may be included in the petition.

We understand that this is bufa rule of construction and that if it clearly appeared that the intention of the Legislature was to prohibit the consideration of a petition calling for the disannexation of more than one territory, we would honor such intention. However, we are unable to find any such ■intention.

Appellant points to our opinion in District Trustees of Tennessee Colony Common School Dist. v. Central Education Agency, Tex.Civ.App., 256 S.W.2d 151, writ, ref., n. r. e., where the Court noted that the word “territory” was used in the singular in Art. 2742f. In that case a single petition sought the disannexation of three separated tracts only one of which had the requisite number of qualified petitioners. The trial court sustained the validity of the proceedings only as to the tract which had the proper number of petitioners. We affirmed the judgment of the trial court although the validity of this portion of the trial court’s judgment was not before us. If, as appellant contends, the inclusion of more than one tract in a single petition makes the petition and any order based on it void, then the trial court in Tennessee erred in its disposition of that case and we probably erred in affirming its judgment even though its validity in this respect was not affirmatively presented to us. It is our opinion that the trial court correctly ruled in Tennessee and that such case rather than being helpful to appellant is against its contentions here.

In Munday Independent School District v. Knox City Independent School District, 152 Tex. 89, 254 S.W.2d 381, the Court, in a proceeding under Art. 2742f, held that five separate detachment petitions, each legally sufficient when considered alone, must be jointly considered when the obvious effect of their separate consideration was to violate the statute. Since such petitions must be jointly considered, it follows, we believe, that they could have been embodied in one instrument.

If separate petitions must be considered jointly to avoid a violation of Art. 2742f, we see no reason for holding that a joint petition relating to two separate but related tracts may not be utilized when to do so violates no statute and results in prejudice to no one. It was certainly proper that these two tracts be considered for dis-annexation at the same time and their inclusion in the same petition was appropriate and not illegal.

We affirm the judgment of the trial court.

Affirmed.

      . See International-Great Northern R. Co. v. Railroad Commission of Texas, Tex.Civ.App., 281 S.W. 1084, Austin, writ, ref.


author: WILSON, Justice.

text:
    James L. JOHNSON et al., Appellants, v. GOLDEN TRIANGLE CORPORATION, Appellee.
    No. 4463.
    Court of Civil Appeals of Texas. Waco.
    May 26, 1966.
    Rehearings Denied June 16, 1966.

      Carrington, Johnson & Stephens, Marvin S. Sloman, Nesbitt, Bentley, Walden & Shytles, Edwin A. Nesbitt, Dallas, for appellants.
    Ñaman, Howell, Smith & Chase, J. Rodney Lee, Albert Witcher, Waco, for ap-pellee.
   OPINION

WILSON, Justice.

The lessor, Golden Triangle, recovered judgment for rents in a non-jury trial against Philco as alleged assignee of the original lessee, Johnson. Findings and conclusions were filed. We affirm.

Philco’s principal contention concerning the rent claim is that there is no showing in the record that it became an assignee so as to be liable for rents. Golden Triangle leased the premises to Johnson for a five-year term by written agreement, to be used for a coin-operated dry cleaning and laundry business. Philco furnished the equipment and financed the operation, called a “Pilot Store”, through Philco Finance Corporation. The business was not profitable, and when Johnson’s financial difficulties made it impossible to continue, the business was “transferred by Johnson to Philco.” The transfer was accomplished by a written “termination agreement” which contained, along with a stipulation for repurchase of “products,” the following provisions :

“Purchase of Pilot Stores. At termination date, Philco will purchase from Johnson, and Johnson will sell, deliver and release to Philco, free and clear of all liens and encumbrances (other than those contemplated to be discharged by the performance of this agreement), all right, title and interest which Johnson has or may have in coin-operated laundry and dry-cleaning establishments (hereinafter called ‘Pilot Stores’ including (but not limited to) personal property described in” attached schedules.

As to “its” leasehold interests in premises occupied by Pilot Stores, Johnson covenanted that they were accurately set forth in “Pilot Store Leases”; that lease requirements had been complied with; and that there were no other agreements affecting occupancy. The termination contract also provided:

“Johnson covenants and agrees that when called upon to do so at any time or from time to time, he shall deliver to Philco or its nominee any and all instruments in form acceptable to counsel for Philco assigning all rights and interests of Johnson in and under the leases and other agreements described” in the schedules.

Philco never requested delivery of any instruments of assignment, and none were delivered. The latter fact is emphasized in support of Philco’s argument that there was no written assignment. We do not agree. Philco had required Johnson to obtain a landlord’s waiver and consent to assignment of the lease. It assumed physical possession of the inventory and other personal property on the premises, continuing the occupancy, and paying to lessor the stipulated rental for several months. On the date it executed the termination agreement Philco notified its creditors (but not Golden Triangle) in writing that it had contracted to purchase from Johnson “all leasehold interests” in the Golden Triangle establishment.

Philco’s argument that the written assignment was never effectuated because no separate instrument of assignment was delivered is unconvincing. Such an additional instrument was required to be delivered only if Philco requested it. The termination agreement itself contained a written assignment. By it all property “including (but not limited to) personal property” was transferred. The term “property”, of course, absent evidence of a contrary intent, included Johnson’s leasehold interest in realty. Womack v. Womack, 141 Tex. 299, 172 S.W.2d 307, 308. That Philco did not call for delivery of a separate additional document does not affect the sufficiency of the general transfer. Jackson v. Knight, Tex.Civ.App., 194 S.W. 844, writ, ref. The assignee is liable for rents under the original lease. Davis v. Vidal, 105 Tex. 444, 151 S.W. 290, 42 L.R.A.,N.S., 1084.

Our holding is not in conflict with Cooper v. Astin, Tex.Civ.App., 343 S.W.2d 713, no writ. There was no written assignment in that case.

It is said by appellant that lessor should be held to have declared a forfeiture so as to terminate liability for rent by the following language in its letter to Johnson in January, when he was delinquent in rental payments: “In the event said rental payments are not brought up to date immediately, Golden Triangle hereby gives notice to declare the lease forfeited in accordance with provisions of said lease agreement.” Appellant relies on Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95. The present lease provided that at lessor’s option it might be forfeited if default continued ten days after notification of intention to declare the lease forfeited. In our opinion the quoted language did not constitute a declaration of forfeiture so as to end appellants’ liability. It was a conditional notice or warning that lessor intended to declare a forfeiture upon the contingency that default continued.

Appellants’ other points and appellee’s cross-points have been considered and are overruled. Affirmed.


author: CADENA, Justice.

text:
    Romulo A. MUNGUIA et ux., Appellants, v. Manuel T. PAIZ, Appellee.
    No. 14493.
    Court of Civil Appeals of Texas. San Antonio.
    May 18, 1966.
    Henry Beltran, San Antonio, for appellants.
    George' C. Reed, San Antonio, for ap-pellee.
   CADENA, Justice.

This is an appeal from a summary judgment in a trespass to try title suit rendered against appellants, Romulo A. Munguia and wife, Nelda Marie Munguia, defendants below, in favor of appellee, Manuel T. Paiz.

Appellee filed his petition in the statutoiy form of trespass to try title, to which appellants interposed a plea of not guilty. Ap-pellee then filed a motion for summary judgment, to which was attached a certified copy of a deed signed by appellants conveying the land in question to appellee. The motion was further supported-by the affidavit of the person who prepared the deed, detailing some of the transactions between the parties, and stating that before Mrs. Munguia executed the deed he explained to her, separately and apart from her husband, the nature of the transaction and the reasons and considerations for the conveyance. The deed is properly acknowledged by both the husband and the wife.

The warranty deed recites a consideration of $10.00 and other good and valuable consideration, receipt of which is acknowledged, “and further consideration that this deed is made subject to” a described promissory note secured by a deed of trust.

In answer to the motion for summary judgment, appellants asserted that there was additional consideration for the conveyance, not expressed in the deed, and that there had been a failure of such consideration. Appellants made no allegations of fraud, and filed no pleadings seeking a cancellation or rescission of the deed.

After a hearing, the trial court granted the motion for summary judgment and awarded appellee title and possession of the land in question.

Even if it be assumed that parol evidence was admissible to show that the deed did not recit.e the full consideration for the conveyance, and assuming that there has been a total or partial failure of consideration, appellants’ pleadings and counter-affidavits presented no defense to appellee’s suit. The applicable rule is tersely stated in Stuard v. Vick, Tex.Civ.App., 9 S.W.2d 494, 496, wr. dism., as follows: “It is well settled by the decisions in our state that mere failure by a grantee to perform a promise, which formed the whole or a part of the consideration inducing an executed conveyance of real estate, gives rise to no right of rescission in the grantor.”

Stated differently, a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will, despite such failure, operate to convey title. 6 Thompson, Real Property (1962 Replacement), § 3124; 26 C.J.S. Deeds § 21, p. 618. The authorities on this question are exhaustively discussed in Tripplehorn v. Ladd-Hannon Oil Corporation, Tex.Civ.App., 8 S.W.2d 217, wr. dism.

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    Emily BRIDGES et al., Appellants, v. Clarence BRIDGES, Appellee.
    No. 6818.
    Court of Civil Appeals of Texas. Beaumont.
    May 19, 1966.
    Rehearing Denied June 15, 1966.
    John’s, Willard & Hannah, Beaumont, for appellants.
    Tom Featherston, Port Arthur, D. F. Sanders, Beaumont, for appellee.
   PARKER, Justice.

Plaintiff Clarence Bridges sued the defendants, Emily Bridges, Gladys Howard and Clifton Howard, Jr., for the title to and possession of various tracts of land, some of which he alleged to be his separate property and other tracts he alleged to be property of the community estate he equally owned with his divorced wife, Emily Bridges. He alleged fraud in order to cancel and annul certain instruments and, having done so, to recover title and possession to such tracts of land or, in the alternative, to recover such tracts of land upon the basis that community funds of Clarence Bridges and Emily Bridges were used in purchasing the property with the legal title thereto being vested in one or more of the defendants under the theory of constructive or resulting trust. Upon stipulation of the parties some of the tracts of land were disposed of in the judgment of the trial court. As to other tracts of land the controversy was resolved by final judgments in severed causes of action. Upon a jury verdict judgment was rendered on the “Smith Street property” restoring and vesting in Clarence Bridges and Emily Bridges, share and share alike, the title thereto. As to what is known as the “Kansas Street property” the title by the judgment was vested in Clarence Bridges as his sole and separate property. As to the Smith Street property, the court found that it was incapable of being partitioned and ordered that it be sold with the net proceeds of such sale divided equally between Clarence Bridges and Emily Bridges. It is only as to the judgment affecting the Smith Street and Kansas Street properties that the defendants have appealed.

In response to special issues, the jury found (1) that there existed a confidential relationship between Clarence Bridges and Emily Bridges in the payment of a note and indebtedness on the Smith Street and Kansas Street property; (2) that Clarence Bridges relied upon the said confidential relationship with Emily Bridges in the payment of the said note and indebtedness; (3) that said reliance by Clarence Bridges was reasonable under all the attending circumstances ; (4) that Emily Bridges fraudulently failed to make the payments on said note and indebtedness causing them to be overdue and foreclosed by deed of trust sale; (5) that Emily Bridges arranged with Gladys Howard and/or Clifton Howard, Jr. to purchase the Smith and Kansas Street properties for said Emily Bridges; (6) that Clarence Bridges did not know for a reasonable time before the foreclosure sale that the confidential relationship previously existing between him and Emily Bridges had ceased at the time the property on Smith and Kansas Streets were sold at the foreclosure sale to Clifton Howard and Gladys Howard; and (7) that Clarence Bridges, in the exercise of ordinary care, would not have known for a reasonable time before the foreclosure sale that the confidential relationship previously existing between him and Emily Bridges had ceased at the time the property on Smith and Kansas Streets were sold at the foreclosure sale to Clifton Howard and Gladys Howard.

The defendants in the trial court will be designated as appellants or by their proper names. The plaintiff in the trial court will be designated as appellee or by proper name.

Appellants’ first three points of error are that there was no evidence of fraud on the part of appellants for which reason the trial court erred in overruling appellants’ motion for a directed verdict, appellants’ motion for judgment non obstante veredicto and in submitting special issues Nos. 4 and 5 to the jury. Appellants’ first three points of error are “no evidence” points. The evidence favorable to the jury’s findings will be considered in passing upon these points. The evidence bearing upon fraud is as follows:

Emily Bridges was married to Clifton Howard on October 24, 1929. They had two children, Clifton Howard, Jr., born "in 1928, and Gladys Howard, born in 1941. Clifton Howard died intestate on January 10, 1946. Emily Bridges married Clarence Bridges on October 25, 1947. To this marriage two children were born: Clarence Bridges, Jr., born in 1948, and Alice Bridges, born in 1951. They were divorced September 16, 1959. Emily Bridges had a high school education and attended college part of one year. She was employed by Jefferson County Water Control and Improvement District No. 11 in Port Arthur, Jefferson County, Texas. Among her duties was the issuance and signing of checks. She was secretary-treasurer and a director of said Board. Emily Bridges received the following amounts from Jefferson County Water Control and Improvement District No. 11:

Feb. 9, 1959 Director’s Fee $ 500.00
Feb. 11, 1959 1,437.00 ($1,080 rent; $207 repayment of loan; $150 car expenses)
Mar. 23, 1959 Director’s Fee 100.00
Apr. 16, 1959 “ 100.00
May 28, 1959 “ 300.00
June 3, 1959 “ 100.00
Dec. 9, 1959 “ 35.00
Dec. 17, 1959 “ 30.00
Dec. 18, 1959 “ 600.00
$3,202.00

All of such money was community property and in her possession and actual control together with $3,500.00 she received in March of 1958.

Clarence Bridges was uneducated, could not read, but could draw his name. He testified that his wife, Emily, handled all business matters, paid bills and installment payments on notes. Clarence Bridges authorized and relied upon his wife’s attending to all business matters at all times pertinent to this action. Clarence Bridges was an employee of Gulf Refinery.

Admittedly, the Kansas Street property was originally a part of the separate estate of Clarence Bridges. On October 25, 1950 Clarence Bridges and wife, Emily, executed a deed of trust to R. L. Rutan, trustee, covering the Kansas Street property to further secure the payment of their vendor’s lien note of even date in the amount of $4,450.00 payable to C. L. Lazenby and wife as part of the purchase price for the Smith Street property. This note and lien was transferred and assigned to Mary Skeff and subsequently acquired by Tom Moore Feathers-ton. On April 21, 1959, Featherston transferred and assigned same to Clifton Howard, trustee for the Gladys Howard Trust. This trust agreement was prepared by Featherston, is dated April 2, 1959, and terminated when the beneficiary attained 21 years of age with title then vesting in Gladys Howard. $900.00 was placed in this trust by Clifton Howard.'

In March of 1958 Emily Bridges sued Clarence Bridges for divorce, employing Featherston as her attorney. Clarence Bridges continued to live in their homestead on a 5 acre tract, continued to give her money to make the payments on the Lazen-by and other notes, continued to allow her to collect the rents and to retain royalty on oil from a separate property. Nevertheless, Emily Bridges led him to believe that she had paid the notes on the community mortgages until after the deed of trust sales hereinafter mentioned. At the time Clifton Howard, as trustee, acquired the Lazenby note and liens he had no money. His mother, Emily Bridges, did have money, which, was community property. The only source Clifton Howard had to obtain money was from his mother who admitted she had enough money to send those kids up there (referring to Clifton Howard and Gladys Howard) $900.00, although not at one time. Clifton Howard stayed with his mother and his step-father, Clarence Bridges, immediately prior to Clifton Howard’s placing said $900.00 in trust for his sister, Gladys Howard. Emily Bridges received $1,437.00 on February 11, 1959 from the Water Board. After the divorce suit was filed Emily Bridges admitted that she conferred with her children, Clifton Howard, Jr. and Gladys Howard, about the properties here involved, at which time she was really taking care of the notes. There is probative evidence that they agreed to acquire these properties and exclude Clarence Bridges from any interest therein. The holder of the notes which were allowed to become delinquent was Clifton Howard, Jr. as trustee for Gladys Howard. He appointed Featherston as substitute trustee for Rutan. All three, Emily Bridges, Clifton Howard, Jr. and Gladys Howard, knew of the trustee sale to come up. Emily Bridges did not advise Clarence Bridges of such planned foreclosure sales, although living in the same house with her. Featherston, as substitute trustee, sold the Kansas Street property at the trustee sale to Clifton Howard as trustee for the benefit of the Gladys Howard Trust for $50.00. The date of the trustee sale was July 7, 1959. The Smith Street property was community property of Clarence Bridges and wife, Emily Bridges. Likewise, on the Smith Street property, Featherston, as substitute trustee, at trustee sale on June 2, 1959, sold the Smith Street property to Clifton Howard as trustee for the benefit of the Gladys Howard Trust for the sum of $820.86.

The evidence justifies the conclusion that Emily Bridges with community funds in her possession deliberately violated her agreement with Clarence Bridges to pay the installments on the note given to the Lazenbys so that foreclosure sale under the deed of trust might be had. After the divorce suit was filed Clarence Bridges continued to live in the same house as his wife, Emily, together with his children by the marriage to Emily Bridges. This home was on a five acre tract as to which there is no argument. He was paying some $47.00 every two weeks to Emily Bridges for the support and maintenance of his children. Emily Bridges was collecting the rents from properties other than the homestead. To summarize, it appears that Emily Bridges and her children, Clifton Howard, Jr. and Gladys Howard, using money that belonged to the community estate of Clarence Bridges and wife, Emily Bridges, placed the legal title of property that originally belonged to Clarence Bridges or to Clarence and Emily Bridges in themselves or some of them. In the charge of the court “confidential relationship” was defined, and as part of the instruction to the jury with reference thereto, the court stated “the existence of a marital relation, standing alone, does not thereby carry a presumption of confidential relation.” The jury found there was such a confidential relationship. With Emily Bridges occupying a position of trust, she took advantage of Clarence Bridges in their dealings, with the co-operation of Clifton Howard and Gladys Howard. There is probative evidence that Clarence Bridges was defrauded of his interest in these properties by Emily Bridges and her children by a former marriage, taking advantage of his trusting ignorance. The divorce decree was entered September 16, 1959, but there was no adjudication of property rights as between them. Appellants’ points of error 1-3, both inclusive, are overruled.

Appellants’ points 4 and 5 assert error of the trial court in admitting testimony as to prior property transactions between Emily Bridges and her deceased former husband, Clifton Howard, and as to the amount of attorney’s fees received by Mr. Featherston for the reason that the transactions were unrelated. It seems that she had obtained a deed from Clifton Howard, Sr. to certain property in 1939. This deed was admitted for the limited purpose of showing her knowledge of property transactions and that she had a history of being able to acquire property in her name. The attorney’s fee received by Featherston was for representing the Water Board No. 11. As to the 1939 deed the point of error is overruled. As to the fees Featherston received from the Water Board, this evidence was harmless under Texas Rules of Civil Procedure, rule 434, and this point of error is overruled.

The judgment of the trial court is affirmed.