author: CRITZ, C. GURETON, C. J.

text:
    McMULLEN et al. v. SIMS et al.
    No. 1431—5637.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.

      Douglas & Scott, of Lubbock, and J. M. Harris, of Snyder, for plaintiffs in error.
    Bean & Klett, of Lubbock, and Leon Moses, of Post, for defendants in error.
   CRITZ, C.

This suit was instituted in the district court of Garza county by Mrs. Helen T. McMullen and Mrs. Beverly S. McMullen, joined by their respective husbands, against Y. B. Sims,' L. R. Sims, Mrs. Laura Sims, a widow, and the Eirst National Bank of Post, Tex. The two plaintiffs are the two daughters named in the will of E. C. Sims, deceased, hereinafter set out. Mrs. Laura Sims is the mother of the deceased. The father of the deceased is dead. The purpose of the suit is to recover for the plaintiffs the estate of E. C. Sims, deceased, and to require an accounting by V. B. Sims. The suit requires the construction of the will of E. C. Sims, deceased.' We here copy such will, omitting formal parts:

“The State of Texas, County of Garza
“Know all men by these presents: '
. “That I, 'E. C. Sims, of Garza County, Texas, being of sound and disposing mind, and desiring to make provisions and arrangements for the handling and management of my estate, and for passing and conveying title thereto, in _ case of my death, make and publish this my last will and testament, revoking any and all wills heretofore made by me.
“1. It is my desire and I so direct that my executors hereinafter appointed shall fully pay off, satisfy and discharge all legal indebtedness and obligations due by me at the date of my death, including my last medical, physician and funeral bills and expenses.
“2. Having in mind the pending separation of myself and wife, Gladys Johnson Sims, pre-supposing a divorcement of such marriage and a continued separation, and there now being no community property rights existing between myself and wife, she having received and taken all of her separate and individual as well as her interest in the community property prior to this date, and entertaining a strong fatherly love for my two girl children, Helen Trix Sims and Mildred Beverly Sims, and to the end that my said children may be provided for should they at any time hereafter become in want and in need of a support, I hereby give and bequeath unto my brother, V. B. Sims, all and entire of my estate of which I may die possessed of, including all of my real and personal property, bills receivable, life insurance policies or any and all other demands, annuities or other incomes or sources of income.
“3. It is my desire and I so direct that my said brother, V. B. Sims shall take and hold said properties of and belonging to my estate and to handle same according to his best judgment in such a manner that said estate may be placed and conducted upon an income basis, that is, that moneys belonging to my said estate shall be invested or loaned at interest in a safe manner so as it may be continually bringing and bearing an income, and that the real estate may be so managed, handled and controlled as to produce an income either in rents or leasage, and that my personal property be converted into cash at such time and in such manner as to produce the best results in sales and prices, the proceeds of such matters and things to be kept and maintained in one common fund to be known and continued as the E. 0. Sims estate. I hereby confer upon my said brother as legatee hereunder full power and authority to make and execute any and all instruments necessary to the handling and disposition of my said estate for carrying out the purposes of this my last will and testament.
“4. It is my desire and I hereby direct that should my said two daughters or either of them hereafter become in a state of want or in need of funds necessary to meet their wants so as to prevent them from being embarrassed for the want of funds to meet their actual living and necessary expenses in a reasonable economical manner of living, then that my brother, legatee hereunder, shall pay such sum or sums as may be actually necessary to relieve any such want or need to my two said daughters, or either of them, it being my desire that they my said daughters shall be each treated as nearly alike in being made recipients of the funds of m.y said estate to be paid for meeting their necessities for. a living and support as hereinabove indicated.
“5. Should my father and mother, or either of them, at any time become in the state of want or in need of funds for a support and with which to pay the actual expenses necessary to their living in ease with a reasonable degree of economy, then I direct that my said brother pay to my said father and mother, or to either of them, such funds of my estate as may be necessary to relieve such want or need to which they may be subjected, though I do not now anticipate that such conditions will ever exist as to my said father and mother unless some dire adversity or calamity should befall them.-
“6. I hereby nominate and appoint my father, S. D. Sims, my brothers, V. B. Sims, and L. R. Sims as executors of this my last will and testament, directing that my said father and said brother V. B. Sims shall have full power and authority as executors of this my last will in counseling with each other in carrying out the provisions of this my last will, and should they for any reason not be able to agree upon any matter, thing, or issue pertaining to the administration of my said estate, then shall they call in for consultation L. R. Sims the other and third executor herein appointed, and any two of said three executors agreeing upon said matter of controversy shall control in the decision of such matter, such two or three executors so acting together is only necessary under this will in determining as to the transaction to be had in and about the administration of my said estate, but the signature of my said brother V. B. Sims shall only be necessary to any conveyance or other instrument in writing to give same full force and effect in parsing title or otherwise perfecting any transaction required to be in writing pertaining to the affairs of my" said estate and I direct that my said executors shall not be required to give bond, and that no other or further proceedings be had in the courts of the country in probating this my last will other than filing and making proof of same and in preparing and filing an inventory of my estate in the manner ordinarily required in the administration of estates.
“7. It is my desire and I direct that my life insurance policies one of which is now made payable to my estate and the other to my said two girl children as the beneficiaries therein, which said policy so payable to my said children I shall now take steps to have changed so that same will be payable to my estate, and that said policy be collected and the proceeds or funds thereof be put into the general fund of my estate in the same manner as any and all other proceeds of my said estate and that same be administered hereunder in like manner as other funds of my said estate, the funds of my said estate not paid out under the provisions of this my last will to be and remain in the hands of and as the property of my said brother V. B. Sims.” .

We shall first proceed to construe this will, and in order to do so we must announce certain well-established rules of construction. These rules are as follows:

1. There are no arbitrary or unbending rules in the construction of a will, as no two wills are in all details alike. In construing a will form should be subordinated to substance, and if the testator’s intention can be ascertained, from a reading of the whole will, such intention must be given effect, however informal the language may be. ⅛0 Oyc. p. 1396.

2. AVhere the testator’s intention is manifest, from the context of the will and surrounding circumstances, but is obscured by an inaccurate mode of expression, the language will be subordinated to the intention, and in order to carry out the intention of the will the court will, so far as possible, depart from the strict words, and read a word or phrase in a sense different from that which is ordinarily attributed to it, and for such purpose may change the language of the will, such as rejecting superfluous words, or restricting them in their application. This rule, of course, only applies where it is necessary in order to effectuate the testator’s intention, clearly apparent from the will. Where the language of the will is plain and unambiguous, the court cannot give it a meaning different from that warranted by its words merely for the purpose of carrying into effect a conjecture or hypothesis as to the testator’s intention by changing such language. 40 Oyc. 1399.

3. Where an ambiguity exists in a will, unless there is a manifest intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution will be applied as an aid ⅛ the construction of the will. It follows that such a construction should be given the will as favors the heirs at law, or next- of kin in preference to disinheritance. 40 Cyc. 1412.

4. In determining the intention of a testator, separate statements and clauses should not be considered alone, but the whole will should be taken together, and each part construed with relation to the language used in other parts so as to give effect to the general intention thereby ascertained. If possible, the will should be so construed as to form one consistent whole. The whole scheme of the will should be kept in mind and the will construed from its four corners so as to give effect to the clearly expressed intention of the testator. 40 Oyc. 1413.

Now bearing in mind the foregoing rules of construction, and applying them to the inStant will, let us construe tlie same so as to give 'effect to the purpose and intent of the testator as expressed by the will.

When we construe this will from its four corners; when we subordinate form to substance; when we consider from the context of the will, and the circumstances and purposes of its execution, what the testator wanted to accomplish; when we consider that the manifest and expressed intention of the testator was primarily to provide for his two daughters, whom he expressed a strong fatherly love for, and whom by all natural and statutory laws he was bound t.o care for and support, they at the time being minors; and when we consider the entire will, and not separate statements or clauses—we are led to the inevitable conclusion that testator intended to will and did will his property to Y. B. Sims as trustee for his daughters, just as completely, and just as effectively as if he had written the word trustee into the will. In other words, we are convinced that it was not the intention of testator to give to V. B. Sims any title to his estate except as a trustee for the two daughters. We think that as expressed by the will testator also intended to charge the property with the care of his father and mother, in case they needed it, but that he considered this a secondary and remote contingency.

We therefore hold that V. B. Sims only took title-to this property as a trustee for the two daughters of testator, and that he has never had any other title thereto. We further hold that the real title has vested at all times since the testator’s death in said two daughters.

It is further manifest to us that while the father and mother (the father is now dead) were not intended to have any title to the estate, still it was intended to burden it with their necessary wants should they become in need.

Since we have held the title vested in y. B. Sims by the will is that of a trust, we must proceed to decide the other issues in the case regarding him as such.

It is the duty of a trustee under a will to carry out and perform the instructions of the will, which created the trust. In this connection we hold that his rights and powers, as well as his duties, must be ascertained by an inspection of the will, which is the instrument by which the trust was created. As to the performance of the duties of a trustee the general requirements are that he must act in good faith, and exercise that degree of care and diligence that an ordinarily prudent and careful man would exercise in the management of his own affairs. 39 Cyc. 293.

We shall now proceed to examine the record, including the statement of facts and findings of the trial judge, to ascertain if the trustee has violated the trust in such a manner as to justify or require his removal.

When we come to examine this will, we find that the trustee is required to do three principal things, as follows:

1. He is required to preserve the integrity of the estate and keep it producing revenue;

2. He is required to look after the needs of the two daughters, and use the funds of the estate so that they do not come to want ; and

3. In the event of need he is required, to use the funds of the estate to supply the needs of the father and mother of the testator in case they come to want.

With reference to the first requirement, it is shown conclusively that the trustee has not kept the estate revenue producing. He has collected large sums of life insurance, and has had large sums 'in cash on hand at various times, but has made no effort to lend the same; he has used the land for his own benefit without accounting to the estate for any rentals; and he has practically dissipated the cash and personal property of the estate. In fact, we hold, as a matter of law, that the trustee has violated the trust in his business-management of the estate.

With reference to the second requirement, it is shown that at the time of testator’s death the two girl children of testator were minors, and in need of support. It is further shown that they had no means of support and education except the funds that were given them by their mother’s relatives. It is further shown that they have both married men of limited means and are now and for some, time past have been in need of assistance. In the face of all this it is shown that V. B. Sims has never given them any assistance out of the estate, and when called on to do so asserted his own title to the property-adverse to the -two daughters. We therefore hold as a matter of law that the trustee has-violated the terms of the trust in this particular.

With reference to the third requirement, we find that the testator’s father is dead, and there seems to be no contention that the mother is in need of any aid from the estate at this time, or that she is liable to become in-need.

Erom the above we conclude that the trustee has been guilty of such violation of the trust imposed upon him -that he should be removed, and required to render an accounting of his trusteeship up to the date of the removal.

We further conclude that the coh-tents and provisions of this will disclose that the trust thereby created was intended to be personal in the brother of the testator, Y. B. Sims, and was not intended to extend as a trust beyond the time that Y. B. Sims should administer the same in person. Furthermore, there seems to be no good reason for further continuing it.

We therefore conclude that no new trustee should be appointed, but that the two daughters should recover the estate, burdened with the duty to aid the mother of the testator should she come to want.

The record discloses that V. B. Sims claims credit for certain moneys which he contends the testator owed him prior to his death. In regard to this matter it is contended by the two daughters that Y. B. Sims is disqualified to testify by article 3716. We think V. B. Sims is a legal representative of the estate within the meaning of the statute. Furthermore, he must act as an executor in the payment of debts. He is therefore disqualified as a- witness.

It is shown that Y. B. Sims claims credit for several thousand dollars paid to attorneys to prosecute parties accused of murdering E. C. Sims: The trial court held this expenditure illegal because in violation of the express terms of the will. This holding was correct. The Court of Civil Appeals, 22 S.W.(2d) 313, also held the expenditure illegal, but held that the matter was immaterial at this time because there is sufficient money on hand to pay the amount allowed by the trial court for the two daughters. Of course this ruling of the Court of Civil Appeals is erroneous in view of our holding that the daughters are now entitled to recover the estate.

The two daughters contend that V. B. Sims should be held to account for failure to keep the moneys belonging to the estate drawing interest. Under the will it was his duty to do this. Under the law it was his duty to exercise reasonable diligence to do so. On another trial this matter can be adjusted by the application of this rule.

We think we have sufficiently discussed the law to enable the trial court on another trial to legally adjudicate the amount due by V. B. Sims to the estate.

We recommend that the judgments of the Court of Civil Appeals and the district court be both reversed, and the cause remanded to the district court with instructions to remove the trustee and award the title and possession of this estate to the two daughters of the testator, burdened with the care and support of the testator’s mother, should she ever come to want, and further that V. B. Sims be required to make a full and complete accounting of his trusteeship, and that the two daughters have judgment against him for the amount shown to be due by him to the estate.

GURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded with instructions as recommended . by the Commission of Appeals.

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


source: Caselaw Access Project

author: SHARP, J. OÜRETON, C. J.

license: Public Domain

text:
    STINNETT et al. v. PARAMOUNT-FAMOUS LASKY CORPORATION OF NEW YORK et al.
    No. 1367—5519.
    Commission of Appeals of Texas, Section A.
    April 1, 1931.

      Moroney & Moroney and W. M. Taylor, all of Dallas, for plaintiffs in error.
    Ctavath, deGersdorff, Swaine & Wood, of New York City, and Phillips & Phillips, M. W. Townsend, and Tom Scurry, all of Dallas, for defendants in error.
   SHARP, J.

For a partial statement of the nature .and result of this ease, we adopt the admirable statement made by Chief Justice Gallagher in the opinion of the Court of Civil Appeals, 17 S.W.(2d) 125, which is as follows:

“This suit was instituted by appellees, R. J. Stinnett and S. Charninsky, against appellants, Paramount Famous Dasky Corporation and six subsidiary corporations, to recover $150,000 actual and $300,000 exemplary damages for the alleged ‘wanton, malicious, deliberate and unlawful destruction of plaintiffs’ 'business, in violation of the laws against trusts and conspiracies in restraint of trade,’ etc. They further alleged that they were forced to sell out and retire from the ownership of the Capitol Theater (in Dallas) and to retire as operators from the class A theater business, and that their business and livelihood as operators of such theaters had been wrongfully and illegally destroyed by appellants.

“Appellees, on September 30, 1923, owned the lease on a building in Dallas known as the Capitol Theater, which had theretofore been run as a second class moving picture house. They then organized the Capitol Amusement Company, a corporation, with $10,000 capital stock. Appellees each subscribed and paid for $3,000 of said stock, and H. Charninsky subscribed and paid for $500 thereof. The remainder thereof was sold to other parties. The annual rental on said lease was $30,000. Appellees, or one of them, had prior to the organization of said corporation deposited with the landlord the first month’s rent. Immediately on perfecting such organization said deposit was replaced with money of the corporation and the original deposit returned. Thereafter the corporation paid the rental on said lease. Appellees Stinnett was president, H. Charninsky vice president, and appellee S. Charninsky secretary and treasurer of said corporation. Within a few months after the organization thereof, appellees Stinnett and S. Charninsky acquired all the capital stock of said corporation except one share, which was retained by H. Charninsky. Said corporation immediately upon its organization began the operation of said Capitol Theater as a class A moving picture show. Subsequently it bought and paid for the fixtures and equipment used therein and made necessary improvements on the building. Appellees together acted as managers of said theater. Each drew from the earnings thereof an annual salary of $10,-800. H. Charninsky was also employed by said corporation and paid an annual salary of $5,200. After the payment of said salaries and other expenses, the remaining earnings of said corporation were distributed among the stockholders thereof as dividends. Appellees state in their testimony that they operated said theater ‘through’ said corporation, and that they always treated the proposition as a partnership between them.

“Appellees from the first experienced some difficulty in securing high class films for exhibition in said theater. Some pictures were secured by them from Harold B. Franklin, alleged to have been agent and manager in the distribution of films for all the defendants, and some from other sources. In January, 1925, Franklin agreed with Charninsky to release to him for exhibition in said theater one-half of the pictures produced by First National and available for exhibition during the coming season of 1925-26. Shortly thereafter friction developed between said Franklin and appellees, and according to the testimony of Charninsky, Franklin attempted to evade compliance with said contract by refusing to meet him for the purpose of making selection of the pictures they were to have for exhibition, respectively. Finally, however, by subterfuge, Charninsky secured a meeting and the pictures available were apportioned according to said agreement. The increasing friction culminated a day or two later in a final interview between Charninsky and Franklin, in which Franklin became greatly excited and cursed and indicated a purpose to assault him. The conclusion of said interview was a declaration by Franklin that he would not renew said contract and would see that Charninsky did not get a decent picture to operate said theater. Appellees became alarmed at said threat, and notwithstanding they had under contract sufficient pictures to run said theater until the fall of 1926, they decided that they would sell the same. On November 7, 1925, they did sell the same to Universal Pictures Corporation for a net profit on their investment of $29,700. Said sale was effected by appellees transferring the lease, which remained in their name, to said corporation, and by also transferring to it their entire capital stock in said Capitol Amusement Company. H. Charninsky also transferred to it the share of stock held by him. Appellee Charninsky was thereupon employed by said corporation as manager to operate said theater, and continued as such until said corporation leased the theater to another company.”

The ease was submitted to the jury upon special issues, and they found that plaintiffs were entitled to actual damages sustained by them in the past in the sum of $60,000, and that the damages which they would sustain in the future amounted to $90,000, and they awarded plaintiffs the further sum of $187,500 as exemplary damages. The trial court, upon motion, required plaintiffs to remit certain amounts, and the judgment finally entered in favor of plaintiffs and against defendants amounted to the sum of $318,770, from which judgment the defendants appealed to the Court of Civil Appeals, and the judgment of the trial court was reversed. 17 S.W.(2d) 125.

At the conclusion of the testimony introduced by plaintiffs, the defendants and each of them requested the trial court to instruct the jury to return a\verdiet for each of the defendants. The trial\court refused this instruction, and submitted\the case to the jury upon special issues. Among others, the following special issues were submitted:

“Issue No. 3. In carrying out such agreement, if any, and in exercising such control, if any, did the defendants exclude or prevent the plaintiffs from procuring, by contract or otherwise, in advance, and in accordance with the custom, if any, in vogue among picture show operators, high-class films suitable and sufficient in number, for profitable use in the Capitol Theatre in Dallas, as then operated and intended to be operated in the future by plaintiffs, (if they did so intend) for exhibition in said theatre during the seasons of 1920 and 1927? Answer-‘Yes’or‘No.’
“To which the Jury answered ‘Yes.’
“Issue No. 4. In pursuance of said agreement hereinbefore inquired about, and in carrying out the same, if any such agreement there was, did the defendants threaten the plaintiffs in substance and to the effect that the defendants would see to it that the plaintiffs got no more good pictures for their picture show business? Answer ‘Yes’ or ‘No.’
“If you have answered Issues Nos. 3 and 4 in the affirmative, then answer — ■
“Issue No. 5. At the time said threat, or threats, if any was made, was it the intention of the defendants to carry out such threats, if such were made, and could and would the defendants have prevented the plaintiffs from procuring the class of pictures they desired to get in sufficient numbers necessary to operate said Capitol Theatre profitably in the future? Answer ‘Yes’ or ‘No.’
.“If you have answered Issue No. 5 in the affirmative, then answer — •
“Issue No. 6. At the time the plaintiffs sold out the Capitol Theatre in Dallas, then by reason of the said agreement and control of •high-class films by defendants, if such there was, or by reason of’ said threat or threats, if such were made, or by reason of such agreement, control, and threat or threats, if any, did the plaintiffs have reasonable grounds to fear and did they fear that they would be unable to procure high-class films' in the future and would not be able to operate the Capitol Theatre as a profitable business after exhausting the films then on hand or under contract, and were they thereby caused to sell out said Capitol Theatre and cease to operate the same? Answer ‘Yes’ or-‘No.’
“In this connection, I instruct you that in determining your answers to the foregoing issues you may look to all the facts and circumstances in’ evidence in this case; and, further, that if in response to’Issue No. 1, and that in response to subsequent issues you have found that the defendants were attempting to carry out said agreement' during the. time in question, then during such time the act's or statements, if any, of any one of the defendants, through its authorized agent or officer, or agents or officers, in carrying out such agreement, and in furtherance thereof, would he binding on all, and in law would be deemed to have been said or done by them all.
“To which the Jury answered as follows:
“To Issue No. 4, we answer ‘Yes.’
“To Issue No. 5, we answer ‘Yes.’
“To Issue No. 6j we answer ‘Yes.’ ”

Objections wore made by the defendants to the action of the trial court in giving special issues Nos. 5 and 6, above described, because, among other reasons, they were multifarious and duplicitous and embrace two separate and distinct questions of fact for the jury to pass upon.

The plaintiffs testified that they became alarmed at the threats made by Franklin that he would not renew the contract that had already been made between plaintiffs and one of the defendants, and, notwithstanding' they had under contract sufficient pictures to run said theater until the fall of 1926, they decided that they would sell the same. On November 7, 1925, they did sell the same to the Universal Pictures Corporation for the sum of $75,000, and, after deducting various amounts in the way of expenses and other items, they received a net profit on their investment of $20,700; that the sale was effected by plaintiffs transferring to the corporation all the stock that they, as well as H. Charninsky, owned in the Capitol Amusement Company, .and that everything they owned in the Capitol Amusement Company was transferred to the new corporation, and that thereafter S. Charninsky was employed by said new corporation as manager to operate said theater .and continued as such until said corporation leased the theater to another company.

We are of the opinion that the special issues above described are subject to the objections urged. These issues, in the form submitted, violate article 2189, R. S. 1925, iii that they combine two separate and distinct questions of fact, one of which might be answered by the jury “No” and the other “Yes” or vice versa. We sustain these assignments. Article 2189. R. S. 1925; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517; Lumberman’s Reciprocal Ass’n v. Wilmoth et al. (Tex. Com. App.) 12 S.W.(2d) 972.

Article 21S9, Revised Civil Statutes, among other things, íwovides: “Such special issues shall be submitted distinctly and separately. Each issue shall be answered by the jury separately. In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such'issues.”

, In the case of Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S. W. 517, 521, the Supreme Court, in an opinion by Judge Greenwood says: “The statutes make it the duty of the court in trials by jury; First, to submit ali the controverted fact issues made by the pleadings; second, to submit each issue distinctly and separately, avoiding all intermingling ; and, third, to give such explanation and definition of legal terms as shall be necessary to enable the jury to answer each issue.”

The defendants further contend that the trial court erred in permitting the witness Charninsky to testify over their objections to the profits made by the Capitol Amusement Company during the time preceding the sale thereof, because such testimony was a conclusion of fact and of law, and was secondary evidence; the books of the company constituting the best evidence.

While Simon Charninsky was testifying as a witness for the plaintiffs on direct examination by plaintiffs’ attorney, and after the witness had testified that he was part owner of the Capitol Amusement Company and that he sold the Capitcd Theater in November, 1925, because of throats made by H. B. Franklin not to let the plaintiffs have any more pictures, in answer to numerous questions by his attorneys he was permitted to testify to the weekly, monthly, and annual earnings of both himself and Stinnett, and it developed in the examination of the witness that his figures about which he was testifying were taken from a report made for plaintiffs by H. E. Gordon & Co., accountants, at his request, which report was compiled from the books of the Capitol Amusement Company, covering a p¿riod from September, 1923, to November, 1925.

Defendants objected to the testimony because plaintiffs had been requested to produce the books of the Capitol Amusement Company, which would be the best evidence, and that a round statement as to what his profits were would be a conclusion of fact and of law. The trial court overruled the objection and permitted the witness to testify that they made in one year $43,000 ; that at the time they sold out they were making from $700 to $1,200 per week.

Neither the books nor the statement of Gordon & Co. were offered in evidence by either plaintiffs or defendants, and it was not shown who kept the books and whether they were correctly kept or that the statement made by Gordon & Co. was a correct and accurate statement made up from the books, and it is not shown that the witness Charninsky was in any way connected with the entries, or any of them, that were made in the books, or that he was testifying independently of his own knowledge from the matters contained in the books, from which the auditor’s report was compiled. The record is entirely silent that the books were correctly kept by some person whose duty it was to keep the books as a part of his regular course of business.

We sustain this assignment. Stark v. Burkitt, 103 Tex. 437, 129 S. W. 343, 344; Baldridge v. Penland, 68 Tex. 441, 4 S. W. 565.

In Stark v. Burkitt, supra, the Supreme Court lays down the following rule: “To authorize the introduction of book accounts in evidence, it must be proved: (1) That the book or books contain original entries of transactions pertinent to the business in question. (2) It must appear that the entries were made in the regular course of business at or near to the time the transactions were had. (3) That the entries must be such as to indicate what the charge is for; that is, what the transaction was. (4) That the entries were made by one who was authorized to do so, and that he did the acts so recorded himself, or that he made the record upon information derived from one who was authorized to do so. (5) That the transactions were regularly entered, and that the books were correctly kept. 17 Cyc. p. 371 et seq.; Taylor v. Coleman, 20 Tex. 778; Ward v. Wheeler, 18 Tex. 264; Burnham v. Chandler, 15 Tex. 444; Bupp & Robbins v. O’Connor, 1 Tex. Civ. App. 328, 21 S. W. 619. The evidence did not comply with these requirements.”

The burden of proof to establish their case rested upon plaintiffs, and because counsel for the defendants cross-examined the witness Charninsky upon a matter which had been referred to in direct examination did not waive their objection to that testimony. Cathey v. M., K. & T. Ry. Co. of Texas, 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103.

Defendants further assign as error the action of the trial court in refusing to instruct the jury to return a, verdict for the defendants because the pleadings and the undisputed evidence as a matter of law show that the sole cause of action against defendants belongs to the Capitol Amusement Company, a corporation, and that plaintiffs have no cause of action either in their individual capacities or as stockholders of the Capitol Amusement Company.

Plaintiffs in their petition allege that the defendants formed a conspiracy which violated -the Anti-Trust Daws of' the United States (15 USCA § 1 et seq.) and of this state (Rev. St. 1925, art. 7426 et seq.) to- prevent plaintiffs from obtaining pictures with which to operate their shows, and that, by reason thereof, the plaintiffs were prohibited from operating- picture shows, and therefore werei forced out of business and were compelled to sell their business at a great sacrifice.

The general rule announced in 14 C. J., § 1444-C, p. 924, reads as follows: “As a general rule an action to redress or prevent injuries to the corporation cannot be maintained by a stockholder or the body of stockholders in their own names or in the corporate name, but the action must bo brought by, and in the name of, the corporation itself. This is true, although the injury to the corporation may incidentally result in the destruction or depreciation of the value of the stock. And the fact that the complaining stockholder is the owner of all or substantially all of the capital stock does not enlarge his rights in this respect. The stockholders cannot as individuals recover on a cause of action vested in the corporation, although all unite in the action.”

Many authorities can be cited in support of this rule, some of which are as follows: Evans v. Brandon, 53 Tex. 56; Hamilton v. Cushman Mfg. Co., 15 Tex. Civ. App. 338, 39 S. W. 641; volume 6 Fletcher’s Cyc. Corps., § 3768, page 6272; Green v. Victor Talking Machine Co. (C. C. A.) 24 F.(2d) 378, 59 A. L. R. 1091; Thompson on Corporations (3d Ed.) 7th vol. p. 593, § 5595.

In reaching his final conclusion in this case, Chief Justice Gallagher says: “The cause.of action for injury to or destruction of the property of a corporation or the impairment or destruction of its business is nevertheless vested in the corporation, as distinguished from its stockholders. In such cases the injury to the corporation is direct and the injury to the holders of its stock remote. A recovery by the corporation inures to their benefit in proportion to their respective holdings and affords them compensation for the indirect or consequential loss sustained by them” (citing authorities).

The foregoing general' rule announced by the text-writers and decisions is predicated upon the proposition that the rights of the stockholders are merged in the rights of the corporation, and, if the stockholders sustained any loss or injury, it would inure to the corporation and to the individual stockholders in proportion to their respective holdings in the company.

However, the rule stated above is not so inflexible that it has no exceptions. In 14 C. J. § 1445-B, p. 929, it is said: “The general rule does not prevent stockholders from suing to restrain, or recover damages for, wrongful acts which are not only wrongs against the corporation but also violations of duties arising from contracts or otherwise and owing directly to the injured stockholders.”

It is earnestly contended-by plaintiffs that the Capitol Amusement Company figured only incidentally in the suit filed by them against the defendants; that it was the ruthless and illegal acts of defendants that drove them out of the moving picture business, and that, by reason of such acts on the part of defendants, plaintiffs were not permitted to continue, either through a corporation or individually, in the moving picture business in which they had been successfully engaged for many years.

Plaintiffs further contend that the general rule stated does not apply to their cause of action; that they were injured in a way that t)he corporation, which owned no physical assets and had no interest in the lease, could not have suffered injury; that this suit was not filed to redress the wrongs, if any, the corporation suffered; they sued for the wrong suffered by plaintiff's individually. In support of their contentions, plaintiffs cite, among others, the following authorities: Aransas Pass Harbor Co. v. Manning, 94 Tex. 558, 63 S. W. 627; Pacific Eire Insurance Co. v. Morris (Tex. Com. App.) 12 S.W.(2d) 971; Ritchie v. McMullen (C. C. A.) 79 F. 522, 533; Vierling v. Baxter, 293 Pa. 52, 141 A. 728, 729; St. Johnsbury & L. C. Railway Co. v. Hunt, 55 Vt. 570, 45 Am. Rep. 639; 14 C. J. § 1445-b p. 929.

In the case of Ritchie v. McMullen, supra, in an opinion by Judge Taft, who afterwards became Chief Justice of the Supreme Court of the United States, in answer to the contentions made “that the wrongs committed were injuries to the corporations only, and that Ritchie, as a stockholder, could have no redress directly against the wrongdoers, and must find a remedy, if at all, in the enhancement in value in his stock caused by a recovery of damages by the corporation,” said: “As the very object of the conspiracy and wrongs done was to cause Ritchie to cease to be a stockholder, it might be difficult to point out how such an indirect remedy could benefit him after the wrong had been completed and he had parted with 'his ownership of the stock. It is undoubtedly true, as the circuit court held, that a stockholder, merely as such, cannot have an action in his own behalf against one Who has injured the corporation, however much the wrongful acts have depreciated the value of his shares. Smith v. Hurd, 12 Metc. (Mass.) 371 [46 Am. Dec. 690]; Allen v. Curtis, 26 Conn. 456; Wallace v. Bank, 89 Tenn. 630, 15 S. W. 448 [24 Am. St. Rep. 625]; Hersey v. Veazie, 24 Me. 1 [41 Am. Dec. 364]; Conway v. Halsey, 44 N. J. Daw, 462; Porter v. Sabin, 149 U. S. 478, 13 S. Ct. 1008 [37 L. Ed. 815], But wo are of opinion that this principle has no application where the wrongful acts are not only wrongs against the corporation, but are also violations by the wrongdoer of a duty arising from contract or otherwise, and owing directly by him to the stockholders.”

The foregoing rule announced by Judge Taft in the case of Ritchie v. McMullen was cited with approval in the case of General Rubber Co. v. Benedict, 215 N. Y. 18, 109 N. E. 96, L. R. A. 1915F, 617.

In the case of Vierling v. Baxter, supra, the rule announced by Judge Taft, already quoted, was approved, and in the opinion in that case the Supreme Court of Pennsylvania said: “The action of the lower court was based on the conclusion that the wrongs complained of were to the corporation and all the stockholders and could be redressed only by the corporation or in its name. No fault can be found with this legal principle where the facts justify it; but the gravamen of plaintiff’s complaint is not damage to the corporation or to stockholders in general, but to himself individually. He avers that by reason of the fraudulent conspiracy he was deprived of his patents, of his machinery, of his stock, of his salary, of his royalties, etc. So far as these wrongs or any of them were committed against him personally, there is no reason why the action may not be maintained.”

We think the rule is settled in this state that a stockholder, merely as such, cannot . have an .action in his own behalf against one who has injured the corporation, however much the wrongful acts have depreciated the value of his shares. 14 C. J. § 1444-c, p. 924; Evans v. Brandon, 53 Tex. 56; Hamilton v. Cushman Mfg. Co., 15 Tex. Civ. App. 338, 39 S. W. 641; Thompson on Corporations (3d Ed.) vol. 7, p. 593, § 5595.

It is also settled that, if a suit is brought for and on behalf of the corporation, the-burden rests upon plaintiff to allege and prove that the plaintiff has in good faith made an effort to obtain action by the corporation or must allege and prove such a state of facts as to clearly show that an appeal to the directors or stockholders' would be in vain. If it appears that the wrongdoers are in complete control and management of the corporation, this fact dispenses with the necessity of an appeal to them or the corporation. Barthold v. Thomas (Tex. Com. App.) 210 S. W. 506.

It is well • to keep in mind that modem business methods have created new and complex conditions, resulting in the formation of many combinations of capital and power. Much legislation has been enacted curbing the power of trusts and monopolies. Our federal and state laws condemn trusts and monopolies, and they are considered inimical to the public welfare and against public policy. We are in entire accord with the proposition that the well-recognized rules of law and equity should not be so strictly construed as to produce an irremediable situation or a total failure of justice, but, under proper pleadings and proof, those rules should, if necéssary, be relaxed to promote the ends of justice and to furnish the litigant a forum in which to redress his alleged wrongs.

In applying these principles, we think it equally well settled that, if it appears from the pleadings and the proof that the wrongful acts are not only wrongs committed against the corporation, but also violations of duties arising from contracts or otherwise and owing directly to the injured stockholders, the stockholder should be permitted to file and maintain a suit for injuries sustained as a stockholder and as an individual. 14 O. J. § 1445-b, p. 929; Ritchie v. McMullen, supra; Vierling v. Baxter, supra.

■ Since this case "will be reversed and remanded for a new trial, we suggest that, in our opinion, plaintiffs have not, in the development of this phase of the case, sufficiently complied with the exceptions to the general rule herein stated.

We forego a consideration of the other assignments presented, because they will not likely arise during another trial.

For the reasons herein stated, we recommend that the judgment of the Court of Civil Appeals reversing and remanding this cause to the trial court for another trial be affirmed.

OÜRETON, C. J.

Judgment of the Court of Civil Appeals reversing the judgment of the district court is affirmed, and the cause remanded for a new trial in accordance with the opinion of the Commission of Appeals.

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


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

text:
    AUTOMOBILE INS. CO. et al. v. TEAGUE et al.
    No. 1187—5522.
    Commission of Appeals of Texas, Section B.
    April 15, 1931.
    E. G. Senter and Thompson, Knight, Baker & Harris, all of Dallas, for plaintiffs in error.
    Billingsley & Billingsley and Smith & Smith, all of Fort Worth, for 'defendants in error.
   SHORT, P. J.

In this case there were two applications for writ of error successfully prosecuted, one by the plaintiffs in error, the Automobile Insurance Company, and the Fire & Marine Underwriters Agency, the two companies being substantially the same, and the other by the Century Insurance Company, Limited, of Ed-inburg, Scotland.

The judgment rendered in the Court of Civil Appeals reforms the judgment rendered in the district court, which was in favor of the Chickasaw Lumber Company, a partnership in so many words, but as' well, substantially, also in favor of H. R. Teague, the original plaintiff, against the plaintiffs in error, jointly and severally in the sum of $2,176.70, with interest thereon'at the rate of 6 per cent, from July 20, 1927, and all costs, so as to make the judgment read in favor of the Chickasaw Lumber Company against the Century Insurance Company for $702.16 and against the plaintiffs in error for $1,474.54. 19 S.W.(2d) 599.

The original suit was instituted by H. R. Teague, the owner of a recently erected dwelling house, which had been partially destroyed by fire, against the Automobile Insurance Company, which h¿d issued to him, some twenty days before the fire occurred, a fire insurance policy on the dwelling in the sum of $4,200, paying the annual premium due thereon, and also against some other parties, who were afterwards dismissed from the case, and who need not further be mentioned. The Chickasaw Lumber Company, a partnership, which' had originally erected the building, and afterwards had repaired it, under a contract to do so at its own expense, having a written lien thereon to secure the payment of the contract price, filed a plea of intervention in which it impleaded, the Century Insurance Company.

In the building contract, by virtue of the terms of which the lumber company originally erected the dwelling, and afterwards repaired it when injured by the fire, is a recitation in substance that Teague agreed to keep the improvements insured in the sum of at least $4,000. Evidently in pursuance of this obligation the owner, Teague, took out a policy of insurance during the time the dwelling was being erected, with the Automobile Insurance Company, in the sum of $2,100, paying the premium thereon, and after the building had been nearly completed, some twenty days before the fire occurred, he had this policy of insurance canceled, and another issued for $4,200, paying the premium due thereon. After the fire had injured the building, its owner, I-I. R. Teague, submitted proof of his loss to the Automobile Insurance Company, whose adjuster accepted same, and agreed with the owner upon the amount of ltiss he had sustained, upon the faith of which the lumber company, in pursuance of its contract, repaired the building and restored it substantially as it had originally been, incurring an expense of about $2,400. Before the Automobile Insurance Company had finally paid over the money, which its adjuster had agreed it was liable to pay, it discovered for the first time the fact that tin the 31st day -of March the lumber company had taken out a policy of insurance in the name of the owner and for their benefit, with the Century Insurance Company in the sum of $2,000. This was done without the knowledge on the part of the contractors that the owner had secured insurance on the dwelling, and also without any knowledge on the part of the owner. It appears that all the parties acted in good faith, but in ignorance of what the others had'done until the agreement had been reached between the owner and the Automobile Insurance Company that the latter were liable for the loss and the amount of it.

Each of the policies of insurance contained this provision: “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if the insured, now has, or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part of this policy.” (Italics ours.) The Automobile Insurance Company, as well as the Century Insurance Company, pleaded the provision above quoted, claiming that under the undisputed facts, each of said policies was void. The judgment rendered by the trial court recites .the fact, the trial having been to the court without the intervention of the jury, that H. R. Teague and the Chickasaw Lumber Company are entitled to judgment against the Automobile Insurance Company, and that H. R. Teague is indebted to the Chickasaw Lumber Company for more than the amount of the loss sustained, as well as thg fact that the Century Insurance Company was not liable to the owner or to the lumber company, upon which facts judgment was rendered in favor of the lumber company against the Automobile Insurance Company for the above-named sum, and it wás further decreed that I-I. R. Teague and the Chickasaw Lumber Company take nothing against, the Century Insurance Company. To this judgment the Automobile Insurance Company excepted and gave notice of appeal to the Court of Civil Appeals. •

The Supreme Court, on November 26, 1930 [32 S.W.(2d) 824], upon the recommendation of Section B, affirmed the judgment of the district court solely upon the ground that the plaintiffs in error had not filed a legally sufficient supersedeas bond, but afterwards a motion was granted permitting the Automobile Insurance Company to file a new bond [37 S.W.(2d) 155], which has been done, and it therefore now becomes our duty to decide the case upon its merits.

It is the contention of the Automobile Insurance Company, as well as that of the Century Insurance Company, Limited, of Edin-burg, Scotland, that neither is liable to H. R. Teague, or to the Chickasaw Lumber Company, because each policy issued by these companies, respectively, expressly provided that it should be void in the event of other insurance above the amount permitted in it. The amount of the policy issued by the Automobile Insurance Company is for $4,200, and that of. the policy issued by the Century Insurance Company is for $2,000. The date of the former is May 12, 1927, and the date of the latter is March 31, 1927, while the date of the first policy taken out by the owner was March 30j 1927, and the date of the building contract was March 24, 1927. This provision of the policies in question was material to the risk assumed in 'issuing them, and was also a reasonable one. Had the lumber company been authorized by the owner to take out the policy it did, after he had taken out the policy he did, this provision would have been violated, and would have rendered nugatory the obligations of both insurance companies, which otherwise they would have assumed. In other words, it is the contention of the Automobile Insurance Company that both the owner and the lumber company forfeited all rights which they otherwise would have had, by reason of the fact that the lumber company took out another policy with the Century Insurance Company, notwithstanding the fact that the owner was not aware of this action on the part of the lumber company, and notwithstanding the further fact that the lumber company was ignorant of the fact that the owner had taken out a policy covering the same risk and for their benefit.

It also appears from the record that the building, when fully completed, which was the subject of these policies of insurance, was to cost only the sum of $4,500, and that at the time the $2,100 policy was taken out, on March 30, 1927, a very small portion of the work necessary to be done, in order to complete the building had been done. This situation evidently was the controlling factor on. the part of the owner, in carrying out his obligations to the contractor to insure the building for at least $4,000. It is always proper, in construing a written contract, to do so in the light of the circumstances surrounding the parties. Lipscomb v. Fuqua, 103 Tex. 585, 131 S. W. 1061; Borden v. Patterson, 51 Tex. Civ. App. 173, 111 S. W. 182; Hoffer Oil Corp. v. Hughes (Tex. Civ. App.) 16 S.W.(2d) 901; Dublin Electric & Gas Co. v. Thompson (Tex. Civ. App.) 166 S. W. 113. The owner and the contractor had agreed that the owner would take the risk of damage or destruction to the materials, which were contemplated to be used in the final completion of the building, by taking out a policy of insurance and paying the premium in such an amount as that should the materials be destroyed at any time the contractor would lose nothing. So the owner did take out a policy of insurance for $2,100 and did pay the premium on this policy. Later, when the building was about-completed, evidently having in mind his obligation to protect the contractor from loss in case of damage or destruction of the building, he had this first policy canceled and had another issued for $4,200, paying the premium on that policy, and also evidently intending all the while to perform the obligation he had assumed to keep insured from the time of its inception until its completion, the building in question in such a sum as would carry out the contract he had made with the contractor. ' According to the undisputed facts the owner did discharge this obligation, and the Automobile Insurance Company, through its adjuster, did agree with the owner that it was liable for the loss occasioned by the partial destruction of the building. After it found out that the contractor had taken out a policy of insurance with the Century Insurance Company, it sought to evade its liability solely upon the ground that each of these policies had this provision inserted. Of course, the courts will declare a contract to be forfeited when the language is so clear and unmistakable that it was the intention of the parties for a forfeiture to occur,-under the conditions clearly stated, but the courts will not declare a forfeiture, unless they are compelled to do so, by language which will admit of but one construction, and that construction is such as compels a forfeiture.

This record presents the situation that the Automobile Insurance Company would have paid this loss without question had it not discovered, before the money was actually delivered to the owner, or the contractor, who seems to have been entitled to it, that the contractor had on March 31, 1927, when the first policy issued by the Automobile Insurance Company was in existence, procured from the Century Insurance Company another policy on the same building, and so the rights of the Automobile Insurance Company, as well as its liabilities, must be determined by considering whether the Century Insurance Company had become liable to the owner by reason of it having issued the policy at the request of the Chickasaw Lumber Company. If the owner authorized the Chickasaw Lumber Company, on March 31, 1927, to procure the issuance of this policy from the Century Insurance Company, knowing that he had the day before procured the issuance of a policy of insurance on the same building from the Automobile Insurance Company, then giving due effect to the provision under discussion, embraced in the policies, neither the Automobile Insurance Company nor the Century Insurance Company would have been obligated to pay this owner anything whatever, and, of course, unless the owner was entitled to recover on the policy, the Chickasaw Lumber Company would not, because it had only a lien on the money, and if no money was forthcoming, no lien could attach.

The Automobile Insurance Company cites us to no authority holding that, under these circumstances the rights of the owner became forfeited, though it does cite us to Insurance Company v. Edens (Tex. Civ. App.) 235 S. W. 671, wherein it appears that the person occupying the - position of Teague, the owner in this case, had such knowledge through his duly authorized agent. Here, if it should be conceded that the lumber company was the duly authorized agent of the owner, it appears that this agent had no such knowledge, at the time it acted, that a policy of insurance had been taken -out on the building. However, we are convinced that a proper construction of the language in the contract, in the light of the situation of the parties and their evident intention, compels the conclusion that the lumber company was not the duly authorized agent of the owner when it took out the policy on the building with the Century Insurance Company, and if no such authority in fact existed, considering the situation reflected by the record, then the owner cannot be penalized by forfeiting his contract with the Automobile Insurance Company by reason of the unauthorized act of the lumber company.

The contract, executed by Teague and 'wife to B. F. Richardson, the contractor, who aft-erwards transferred his rights to the Chickasaw Lumber Company, provides, among other things, that the contractor would, at his own expense, construct a certain building of five rooms, in consideration of $4,500 to be paid in the future, and evidenced by a promissory note, and also provided for an express mechanics’, materialmen’s, laborers,’ and contractors’ lien on the property and the improvements, wherein, after reciting the situation, the owner agreed to keep the improvements on said premises insured in the sum of at least $4,000 for the benefit of the contractor, and in which it is provided that a failure to keep said improvements so insured shall authorize the contractor to have the property insured- at the owner’s expense. The record does not disclose that there was any such failure on the part -of the owner to keep the premises insured. Upon the other hand, it does disclose the fact that the contractor was not authorized to insure the property, until such failure had occurred.

The evident, ultimate, and vital purpose of the parties to the contract, between the owner and the contractor, was to secure the contractor against loss or damage to the property by requiring the owner, at his own expense, to insure it in some solvent insurance company for the benefit of the- contractor. Should we abandon this ultimate purpose of the parties, as reflected by the contract, by giving controlling effect to another provision, wherein it is provided that the contractor shall have the right to select the insurance company, with which the property was to be insured, we are confronted by the fact that the record does not affirmatively disclose that the contractor exercised this privilege of selecting the insurance company, and by the further fact that the contractor has so far suffered no loss by the act -of the owner in failing to insure the property in some solvent insurance company, rendering immaterial, under the state of the record, this particular provision of the contract between the owner and the contractor, since it must be assumed that the Automobile Insurance Company is solvent in the absence of proof to the contrary.

We therefore conclude that the act of the Chickasaw Lumber Company, in procuring a policy of insurance from the Century Insurance Company, was not the act of the owner, so as to penalize him with a forfeiture of the benefits he sought to procure for himself and for the Chickasaw Lumber Company, by procuring the issuance of the policy of March 30, 1927, and the cancellation of said policy and the issuance of another on May 12, 1927. • The provision in all of these policies, which we have mentioned, has been held by the courts to be a reasonable one, and the purpose sought to be accomplished a "proper one; but the courts will not permit insurance companies to use this provision to escape payment of their just obligations, wherein no such situation exists, as the parties contemplated should exist, when this provision should be made applicable.

The Court of Civil Appeals, in its opinion, in reforming the judgment of the district court, evidently concluded that the policy of May 12,1927, issued by the Automobile Insurance Company at the instance of the owner, and that of March 31, 1927, issued by the Century Insurance Company at the instance of the Chickasaw Lumber Company, were valid obligations on the part of the respective insurance companies, in favor of the owner, and incidentally in favor of the Chickasaw Lumber Company, and apportioned the losses sustained by the owner between these companies. The application of the Century Insurance Company calls in question the correctness of this conclusion reached by the Court of Civil Appeals. Since we have concluded that the policy issued by the Century Insurance Company was mot authorized to be issued by the. owner, it necessarily follows that the owner has no cause of action against the Century Insurance'Company and that the Court of Civil Appeals erred in so holding.

We recommend that the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.

CURETON, C. J.

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


author: SHORT, P. J. CURETON, C. .1.

text:
    AUTOMOBILE INSURANCE COMPANY OF HARTFORD, CONN., et al. v. H. R. TEAGUE et al.
    Motion No. 9407; No. 1187—5522.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.
    See, also, 19 S.W.(2d) 599; 32 S.W.(2d) 824.
   SHORT, P. J.

The plaintiff in error has filed a motion in the Supreme Court for permission to file, at this time, a new bond amending its original bond filed herein, payable to H. R. Teague, Chickasaw Lumber Company, and Century Insurance Company, Limited, of Edinburg, Scotland, and to any and all other parties adverse to it herein, in the amount and conditioned as required by law, because the Supreme Court, in its opinion adopted, as rendered by Section B of the Commission of Appeals, has held that the appeal bond heretofore filed by the plaintiff in error was and is defective, in that, it is not payable to all adverse parties, and because it was its purpose and intention to file a bond payable to all adverse parties, and believed, in good faith, that it had filed such bond.

Having held that the appeal bond filed by the plaintiff in error is fatally defective, and therefore having declined to discuss the merits of the case, and believing that the law permits the filing of a new bond, under such circumstances, we recommend that the motion be granted, and that the plaintiff in error be given twenty days within which to file with the clerk of the Supreme Court a new bond, duly approved by the proper authorities, as the law provides in such eases.

CURETON, C. .1.

Previous judgment of this court is set aside, and plaintiffs in error given 20 days in which to file a sufficient appeal bond.


author: • CHRISTIAN, J.

text:
    FULLER v. STATE.
    No. 14217.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    J. S. Braeewell and Chas. B. S-piner, both of Houston, for appellant.
    O’Brien Stevens, Cr. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   • CHRISTIAN, J.

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

C. S. Daniels lost a Chrysler roadster of the value of $400. The state introduced in evidence appellant’s voluntary confession wherein he admitted that he took the automobile. After the officers recovered the car, the injured party Identified it as being his property.

The court declined to approve two of appellant’s bills of exception, and filed in lieu thereof his own bills. Appellant attempts to bring forward two bystanders’ bills. Omitting the formal parts, the certificate of the bystanders is in the following form:

“We, the undersigned citizens of the State of Texas, hereby attest that we are fully informed and understand the contents of the foregoing bill of exceptions; that we were bystanders in the court and present when the matters related in said bill of exceptions occurred, and we are fully cognizant of said matters and the other bills of exceptions, which the judge, presiding at said trial, has refused to sign are correct and truly presents the facts as they really transpired.”

The foregoing certificate made by three bystanders was duly sworn to. Article 2237, subd. 9, Revised Statutes 1925, reads as follows:

“Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill ■ as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as part of tbe record relating thereto.”

There is nothing in the certificates appended to said bills of exception attesting to the correctness of the bill presented by appellant. Hence the objection of the state to the consideration of said bills must be sustained.

The judgment is affirmed.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    FULLER v. STATE.
    No. 14218.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    J. S. Bracewell and Chas. B. Spiner, both of Houston, for appellant.
    O’Brien Stevens, Cr. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

A. R. Harris lost a Ford coupé on August 12, 1930. On the same day officers found the automobile at the home of appellant’s sister. Appellant was in bed at his sister’s home when the officers discovered the ear. The keys belonging to the car were found in appellant’s pocket. Appellant did not testify in his own behalf.

The indictment was returned September 10, 1930. On October 14,1930, the case was called for trial. Appellant had been in jail since his arrest on August 12, 1930. An attorney appeared in court at the time the case was called for trial and volunteered to represent appellant, provided a postponement could be obtained for a reasonable time. It appears from the allegations in appellant’s motion to postpone the case that this attorney was at the time engaged in preparing for the trial of a civil ease which was set for October 15, 1930, and in which case the attorney had been employed prior to tendering his services to appellant. It was further averred in the motion that the attorney was not familiar with the facts of appellant’s case. It was requested that the case be postponed for one week. While appellant in part predicated his motion for a new trial upon the refusal of the court to postpone the case, he failed to offer any proof in support of the allegations con.tained in the motion. Reliance seems to have been had solely upon the fact that the attorney was not willing to proceed with the trial on October 14, 1930, because of the fact that he was employed in a civil case which was to be called for trial on the following day.

In the motion for new trial, there is nothing revealing what would have been done had the attorney been, present other than that which was done. The record does not suggest the absence of any witnesses due to the absence of the attorney from the trial. No suggestion is made in the motion of any evidence that might have been adduced in appellant’s favor. It is not shown that any improper evidence against him was received. As far as the record reflects the matter, appellant, by his own neglect, failed in advance to make arrangements with attorneys to represent him. He had been under arrest more than two months at the time his case was called for trial. There is nothing to show that he had made any effort to procure the services of counsel during such time. While it is true that he was incarcerated in jail, he had relatives who appeared and testified at the trial. The record fails to reveal that he requested his relatives to procure the services of counsel for him. There were few witnesses to the transaction out of which the prosecution grew. It appears that they were all present in court, and testified. It is manifested by the record .that it would have consumed but little time for the attorney volunteering his services to have talked to the witnesses and acquainted himself with the facts. The civil case in which he was employed was not to be called for trial, according to the allegations in the motion, until the following day. There is nothing in the record to show that the case against appellant could not have been tried in a few hours if the attorney had proceeded with the trial.

In a felony case of less than capital, the law does not make the presence of an attorney essential. It recognizes the right of the accused to be represented by counsel, but imposes upon him the duty of using diligence in securing representation. Sowells v. State, 99 Tex. Cr. R. 465, 270 S. W. 558. Appellant apparently by his own neglect failed in advance to make arrangements with attorneys to represent him. In his motion for new trial, he sets up no equitable ground and no de-fence upon which this court might feel warranted in concluding that the presence of an attorney would have brought about a more favorable result of the trial. Sowells v. State, supra. Under the circumstances, we are of the opinion that appellant was not deprived of counsel in such way as to bring the case within the rule laid down in Daugherty v. State, 33 Tex. Cr. R. 173, 26 S. W. 60, and Kuehn v. State, 47 Tex. Cr. R. 637, 85 S. W. 793. See Johnson v. State, 84 Tex. Cr. R. 567, 208 S. W. 928.

The judgment is affirmed.

PER CURIAM.

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


author: MORROW, P. J.

text:
    SPURLOCK v. STATE.
    No. 14247.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Hood Kizziar and Olin Blanks, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is robbery with firearms; penalty, confinement in the penitentiary for a period of 35 years.

The indictment is regular and regularly presented.

Neither bills of exception nor statement of facts are found- in the record. No ruling or action of the trial court is presented for review. No fundamental vice in the trial has been perceived.

The sentence is wrong in failing to give effect to the Indeterminate Sentence Law (Code Cr. Proc. 1925, art. 775). The judgment and sentence should condemn the appellant to confinement in the state penitentiary for a term ©f not less than 5, nor more than 35 years. In that particular the judgment is reformed, and, as reformed, it is affirmed.


text:
    COOK v. STATE (two cases).
    Nos. 14049, 14051.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Rehearing Denied April 8, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is swindling, a misdemeanor; the punishment, confinement in jail for thirty-days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed. -

PER CURIAM.

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

HAWKINS, J., not sitting.


author: HAWKINS, J.

text:
    HANLAN v. STATE.
    No. 14103.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    James W. Witherspoon and John A. Coffee, both of Hereford, 'for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being two years in the penitentiary.

Appellant’s motion for new trial was overruled on August 28, 1930, and 80 days after adjournment of court given in which to file statement of facts and bills of exception. Court adjourned on August 29th. All bills of exception were filed on November 18th. The state’s attorney calls it to our attention that this was 81 days after court adjourned, and 82 days after notice of appeal. See article 760, C. C. P. In the absence of a further extension order, the bills of exception were filed too late and may not be considered. The statement of facts was filed within 90 days, and under said article 760 may be considered.

Officers found in appellant’s house a quantity of whisky in pint bottles and half-gallon jars; also a bottle capper and a ten-gallon, keg ; also more than 100 empty bottles, some described as “beer bottles,” others as “flat bottles” or flasks.

The evidence supports the verdict, and the judgment is affirmed.


text:
    LOFTUS v. STATE.
    No. 14027.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    J. Y. Patterson and A. B. Cates, both of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor ; punishment being • two years in the penitentiary.

The indictment charged appellant with having sold to one B. J. Timmins “spirituous, vinous and malt liquor, capable of producing intoxicátion.” Timmins testified that he and two other men went to appellant’s tent to get “some liquor and some beer * * ⅜ we asked him if he had anything to drink. He said yes, he had liquor and heer. I bought a pint of liquor and the other parties got a ease of beer.”

Timmins further testified that, after they reached town, the sheriff got after them, and that he broke the bottle of “liquor” on tlie sidewalk. The sheriff testified that Tim-mins and the .other parties with him were driving through the public square at a great rate of speed, and that he intercepted them and stopped the car; that Timmins “threw a pint bottle of liquor against the sidewalk and broke it.” There is not a word of testimony found in the record as to the kind of liquor purchased by Timmins. This court will take judicial knowledge that “beer” is intoxicating, but there was no claim that Timmins bought any beer, and the record shows affirmatively that the other parties with him bought the beer. This court will also take judicial knowledge that whisky is an intoxicating liquor, but there is no testimony in this record that the “liquor” referred to by the sheriff and Timmins was whisky, or any other character of intoxicating liquor.

In this state of the record this court can do nothing less than reverse because of an absence of proof that the liquor claimed to have been sold by appellant to Timmins was intoxicating.

The judgment is reversed, and the cause remanded.


text:
    BURKS v. STATE.
    No. 14102.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Martin, Shipman & Winters, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of cotton; the punishment, a fine of $50 and confinement in jail for 30 days.

N. O. Holland lost 200 pounds of cotton from his wagon, which was in his field. An investigation disclosed cotton on the ground around the wagon and the tracks of two men. The loss occurred September 21, 1929. On the same date appellant sold 190 pounds of seed cotton to the Farmers’ Grin in Abilene, receiving a check payable to himself in the sum of $8.07. Albert Magill, an accomplice witness, testified that he and appellant went to Mr. Holland’s field in his (Magill’s) car at night and took about 190 pounds of cotton from the wagon. He testified further that they sold the cotton to the Farmers’ Gin in Abilene; that appellant received a check therefor, which was later cashed and the proceeds divided between' the parties. The purchaser of the cotton did not attempt to testify that appellant and the accomplice came to his gin and sold him cotton. He merely testified that the cheek presented to him represented the amount paid by him for 190 pounds of cotton on the date disclosed by the check. There were some automobile tracks in the vicinity of the cotton wagon, but the officers were unable to follow the tracks. They testified that one of the tracks was made by a badly worn casing. The state made no effort to show that the car driven by the accomplice on the occasion of the theft would make tracks similar to those found in the vicinity of the cotton wagon. No witness testified to having seen appellant and the accomplice together near Holland’s premises; nor did any witness testify that he saw the parties together at the gin when the cotton was sold. There was nothing to show what kind of cotton Holland lost. Appellant described the cotton he sold to the gin as “Boleys.” He said: “ ‘Boleys’ are a poor grade of cotton.” Appellant denied that he had engaged in stealing cotton with the accomplice witness, and testified that the cotton he sold the gin belonged to him. He said that he had raised it on his place. He denied going to the Farmers’ Gin with the accomplice witness.

It is the contention that the accomplice witness was not sufficiently corroborated. The state’s attorney before this court expresses the opinion that the evidence is insufficient. The opinion is expressed that the contention must be sustained. The corroboration merely shows the commission of the offense. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the accused with the offense committed. The corroboration is not sufficient if it merely shows the commission of the offense. Article 718, O. O. P.; Timmons v. State (Tex. Cr. App.) 29 S.W.(2d) 770.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


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

text:
    RAGSDALE v. STATE.
    No. 14046.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Rehearing Denied April 8, 1931.
    Alex P.- Pope and Truman Warren, both of Tyler, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for a period of two years.

The indictment is regular and regularly presented. The motion for new trial was overruled and notice of appeal given on July 8th. Ninety days were allowed within which to prepare and file the statement of facts and bills of exception, which time expired on October 7, 1930. The bills of exception found in the record were filed October 11th, and the' statement of facts filed October 21,1930, both of which dates were more than ninety days after the motion for new trial was overruled. By the statute, article 760, C. C. P., this court is precluded from considering either the statement of facts or the bills of exception.

The judgment and sentence fail to taire note of the Indeterminate Sentence Law. The judgment should condemn the appellant to confinement in the state penitentiary for a term of not less than one nor more than two years. The judgment is reformed to that effect, and, as reformed, it is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Article 775 of our Code of Criminal Procedure, providing for the indeterminate sentence, makes no reference to the form of the judgment in the court below. In our original opinion directing that the terms of said statute be complied with, we ordered that the judgment be reformed, but failed to make the-same order as to the sentence. The sentence pronounced against appellant will be corrected so as that he will be therein sentenced to not less than one nor more than two years in the penitentiary. Further than this the motion for rehearing will be overruled.


text:
    WEST v. STATE.
    No. 13999.
    Court of Criminal Appeals of Texas.
    March 25, 1931.

      W. E. Myres, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

Pat Jackson, for the state, testified that he and the appellant agreed upon an exchange by which Jackson received five gallons of whisky in consideration for groceries delivered to the appellant. Jackson was under indictment. From his testimony we quote: “And the grand jury indicted me for the possession of this liquor that I got on this fifth day of October, which is the same liquor that I got from Willis West. I am now under indictment for it. It has never been dismissed so far as I know. I suppose it is still pending.”

Howard Jackson testified for the state that at Griffith’s house he received from the appellant two cases of whisky which the witness conveyed and delivered to Pat Jackson. Ed Mitchell, a state’s witness, assisted in putting the whisky in Jackson’s ear. Mitchell testified that the appellant transported the whisky to Griffith’s store.

Appellant requested the court to instruct the jury that each of the witnesses was an accomplice witness. Pat Jackson was under indictment for possessing the identical whisky with the,possession of which the appellant was charged and in this case convicted. A cotransporter, possessor, or purchaser of whisky is exempted from the operation of the accomplice statute. See article 670, P. C. But Jackson being indicted for the same offense growing out of the same act, that is, the possession of the whisky obtained from the appellant, was by reason of the indictment an accomplice witness. While the indictment was pending, Pat Jackson was not a competent witness for the appellant. His testimony was available to the state, but, unless the state saw fit to dismiss the prosecution against him, his testimony was qualified by the accomplice witness statutes, article S2, P. G., and article 711, C. O. P. See, also, Durham v. State, 110 Tex. Cr. R. 25, 7 S.W.(2d) 92. While it is possible that the acts of Howard Jackson and Ed Mitchell might classify them as principals, they were obviously co-transporters or possessors with the appellant, and by reason of article 670, P. C., we think they were not, under the facts, shown to be accomplice witnesses. See Bailey v. State, 104 Tex. Cr. R. 432, 284 S. W. 574; Odell v. State, 105 Tex. Cr. R. 646, 290 S. W. 164.

The failure of the court to instruct the jury that the indictment of Pat Jackson for the same offense characterized him as an accomplice witness as a matter of law, and that his uncorroborated testimony would not justify a conviction, necessitates a reversal of the judgment.

The judgment is reversed, and the cause remanded.


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

text:
    HARDISON v. STATE.
    No. 13591.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied April 15, 1931.
    W. B. Howard, of Childress, and C. C. Small, of Wellington, for appellant.

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

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

We find in this record no bills of exception. The facts show that appellant’s premises were searched with his consent, and in a hole in the barn under a pile of maize was found a quantity of beer in a barrel with ice around it, and in a cabinet in the house nine pints of whisky were found. When the whisky was found one of the officers asked appellant what he had to say, and he replied that he had nothing to say. Appellant’s stepson testified and claimed that he had put the beer and whisky - where they were found. The trial court instructed the jury that, if they found that the whisky belonged to or was in the possession of said stepson, or if they had a reasonable doubt of this, they should acquit.

Appellant presented a number of exceptions to the charge of the court. Each of these exceptions has been carefully considered, and is not deemed to point out anything in the charge which was wrong.' We do not think it necessary to have charged upon principals under the facts of the case, and we think the court’s definition of possession was legally correct and applicable to the facts.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The sufficiency of the evidence is challenged. ' Three officers testified. They had no search warrant, but were given specific permission 'by the appellant to search his premises. After making a search of the dwelling house without finding any intoxicating liquor, the officers searched the barn. There they found a quantity of beer. Some of it was in a tub with ice around it, and some was in a barrel. There were sixty-seven pint bottles. The barn was about thirty or forty feet from the dwelling house. The appellant was present when the beer was found. After searching the barn, the officers again searched the dwelling house. The appellant was present. One of the officers proposed to search the cabinet which was in the pantry. The wife of the appellant, in his presence, said to the officers: “You have been in there four or five times.” By taking out some nails, the officers opened the cabinet and found therein nine pint bottles each full . of whisky. The officers said to the appel- ' lant, “Now, Tom, what have you got to say?”' Appellant replied, “I haven’t got a thing to say.” '<

Keys, a stepson of the appellant, testified that he found nine pints of liquor which he deposited in the cabinet in the pantry which he had built and with the construction of which he was familiar. When he hid the liquor in the cabinet there was no one present. None of the people were at home. Having an engagement with Brooks to go on a fishing trip, Keys arranged for seventy-two bottles of beer to be delivered to him about dark on Saturday night; that he hid the bottles of beer in the barn under the floor of the maize bin. Keys was under indictment in a liquor case. He was not present when the officers came, but said that the whisky belonged to him.

Brooks testified that he saw Keys in possession of nine pints of whisky, which Keys hid, hut the witness did not know where it was put. Brooks was present when the officers came to search the place. He saw the officers carry away the liquor. He said that the beer was intended to be used on a fishing trip. He had iced some of the beer and claimed it.

Appellant told the officers that the top of the cabinet was stationary. It appeared to be stationary, but, when the nails were taken out, the whisky was found therein. The nails were loose and appeared to have been taken out a number of times. They were removed by the officers without much effort.

In the motion for a rehearing the statement of the appellant, “I haven’t got a thing to say,” is criticized as improperly received. It was proved without objection, and no question of its admissibility is presented here for •review.

•Objections were addressed to several paragraphs of the court’s charge and to the charge as a whole upon the ground that it was not definite in instructing the jury that there could be no conviction of the accused unless it was shown that he possessed the intoxicating liquor for the purpose of sale. Such an instruction was embraced in the general charge and was emphasized 'in a special charge drawn by the appellant’s counsel and given to the jury by the court as a .part of its instruction.

The complaint of that part of the charge which dealt with the,^subject of prima facie evidence is not deemed tenable. It is apparently in line with the instruction approved in Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794, and other cases in which that case has been substantially followed.

We fail to perceive any error in failing to submit to the jury the question of principal offender. The jury were specifically told that, if the whisky found in the appellant’s house belonged to and was in possession of Johnnie Key, or if there was a reasonable donbt In the minds of the jury as to whether it belonged to him, there should be an- acquittal.

The evidence is deemed sufficient to support the conviction.

The motion for rehearing is overruled.


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

text:
    PERKINS v. STATE.
    No. 13935.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    State’s Rehearing Denied April 15, 1931.
    R. C. Roland and O. M. Lord, both of Beaumont, for appellant.
    Hollis M. Kinard, Co. Atty., of Orange, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for ninety-nine years.

Appellant killed W. C. White f>y shooting him with a pistol. Deceased, who was a peace officer, went with Leonard Carr to the home of appellant. Appellant, was in bed, but invited the parties to enter his room. Carr left for the purpose of buying some cigarettes. Deceased remained in appellant’s room. Upon returning to appellant’s home, Carr was advised by appellant that he (appellant) had killed deceased. It was found that deceased had been shot several times. It was the state’s theory that appellant had sent Carr away for cigarettes in order that he might kill deceased. Appellant testified, in substance, that deceased drew a pistol in an attempt to kill him, without provocation on his (appellant’s) part, and that he shot deceased because he believed his life was in danger. He testified further that he had given deceased a drink of whisky; that deceased asked him for more whisky; that he told deceased that he did not have any more; that deceased cursed him, struck him, and told him to get out of bed qs he was going to kill him; that deceased was under the influence of liquor.

The court instructed the jury that homicide committed under the influence of sudden passion arising from an adequate cause was neither excused nor justified by law, but might be considered by the jury in determining the punishment to be assessed. The expression “under the immediate influence of sudden passion” was defined, as was the term “adequate cause.” Following these definitions the court instructed the jury as follows: “And in order to warrant you in assessing the punishment for murder at a period of five years or less, it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, sudden resentment or terror sufficient to render the mind incapable of cool reflection, but also that such state of mind actually existed at the time of the commission of the offense, and that it was produced by adequate cause.”

In applying the law to the facts, the court charged the jury as follows: “Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, N. E. Perkins, ⅜ * * voluntarily and with malice aforethought shoot and thereby kill W. C. White as- charged in the indictment, and that such shooting was not in defense of himself against an unlawful attack from deceased, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, as viewed from his standpoint alone, and you further find from the evidence beyond a reasonable doubt that said killing, if any, was committed with malice aforethought, or was committed under circumstances coming within the definition of adequate cause, as these terms have been herein defined to yon, then you will find the defendant, N. E. Perkins, guilty as charged -in the indictment, and assess his punishment at death, or confinement in the penitentiary for any term of years not less than two years. But, unless you believe from the evidence beyond a reasonable doubt that the said N. E. Perkins acted with his malice aforethought, you cannot assess the punishment of the defendant at a longer period than five years.”

A written objection sufficient to direct the court’s attention to the vice in the charge was timely presented. Construed in connection with the instruction first quoted herein, we deem the charge to be misleading and contradictory. Appellant was tried under the present murder statute. The minimum penalty is two years. Chapter 274, Acts 1927, 40th Legislature (Vernon’s Ann. P. C. arts. 1256-1257b). It is provided in the statute that, unless the jury believe from all the facts and circumstances in evidence that the defendant was prompted and acted with his malice aforethought, the punishment cannot be assessed at a period longer than five years. Disclaiming any intention to hold that it was proper for the court to define “adequate cause” and the expression “under the immediate influence of sudden passion,” it is observed that the charge defining said terms is tantamount to an instruction that, if appellant acted under the immediate influence of sudden passion produced by an adequate cause, malice aforethought would not be present. Having thus instructed the jury, the court, in applying the law to the facts, charged the jury that, if the offense was committed under circumstances coming within the definition of adequate cause, the penalty assessed would be death or confinement in the penitentiary for any term of years not less than two: The instruction was manifestly erroneous in that it authorized a penalty in excess of five years for murder without malice. It was contradictory of that part of the court’s charge wherein the jury were instructed that, unless they believed from the evidence beyond a reasonable doubt that appellant acted upon malice aforethought, the penalty assessed could not exceed five years. Appellant was entitled to a clear, succinct, and unambiguous charge, and one which in no respect contradicted other portions of the charge. Henry v. State (Tex. Cr. App.) 54 S. W. 592, and authorities cited. It is observed that the penalty assessed was ninety-nine years. The opinion is expressed that the error demands a reversal of the judgment.

Attention is called to the fact that, after defining adequate cause, the court instructed the jury that the punishment could not be assessed at five years or less unless the jury believed that there was an absence of malice aforethought at the time appellant fired the fatal shot. This instruction was manifestly erroneous. The minimum penalty for murder with or without malice is two years. We do not predicate a reversal on this error'.

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

PER CURIAM.

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

On State’s Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing it is claimed that an inspection of the original charge of the court will disclose that the word “not” was written between the words “or was committed under circumstances,” etc., in the part of the charge quoted in the original opinion. In the motion it is also claimed that said word “not” appears to have been erased, leaving the verbiage of the charge as quoted in the opinion.

It is suggested that the court request that the original charge be sent here for inspection; The idea advanced is that, if this court should, on inspection of the original charge, decide that the erasure was made after the charge was road to the jury, the particular fault in the charge criticized in the original opinion would be eliminated. Before passing on the appeal a. certified copy of the charge was obtained on the possibility of a mistake in copying it in the transcript. The certified copy verified the correctness of the transcript. When the alleged erasure was made is a question of fact which this court has no means of solving. It would therefore be useless to have the original charge. We will add, however, that in the charge other errors appear, as indicated in the original opinion, which errors would preclude an affirmance of the judgment.

The motion for rehearing is overruled.