author: BELCHER, Commissioner.

text:
    Willie Mack DANIELS et al., Appellants, v. STATE of Texas, Appellee.
    No. 33696.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Don E. Burdette, Jack Mackin, Toby Goldsmith, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., G. V. M. Minton, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal by Toby Goldsmith and Phil Becker, sureties on the bail bond of Willie Mack Daniels, from the judgment final of Criminal District Court No: 2 of Tarrant County upon a forfeiture of said bail bond.

The principal was charged by complaint in the justice court with robbery and required to give bond in the sum of $2,500 for his appearance in the Criminal District Court of Tarrant County. He entered into such appearance bond with Toby Goldsmith and Phil Becker as sureties, conditioned that Daniels make his personal appearance instanter before Criminal District Court of Tarrant County, “and there remain from day to day and from term to term of said court, until discharged by due course of law, then and there to answer said accusation against him”, which was properly and duly approved on August 1, 1960.

On February 14, 1961, judgment nisi forfeiting said bond was entered in Criminal District Court No. 2 of Tarrant County when said cause was called for trial and the defendant, Willie Mack Daniels, failed to appear.

Scire facias, the citation, was issued and served on the sureties pursuant to the judgment nisi entered in Criminal District Court No. 2 of Tarrant County.

The judgment final recites that the appellants appeared in person and each announced ready for trial.

The appellants contend that a bail bond conditioned for the appearance of the accused before a designated court only, must be forfeited in that court.

Article 52-87a2, Vernon’s Ann.C.C.P., provides that the above-named courts shall have and exercise concurrent jurisdiction with each other in all felony cases, and in all matters and proceedings of which the said Criminal District Court of Tarrant County originally had jurisdiction; and either of said judges of said Criminal District Courts may in their discretion, by proper order, transfer any cause that may at any time .be pending in his court to the other Criminal District Court.

Where there are two or more district courts having concurrent jurisdiction and statutory authority to transfer cases from one to the other, the omission of such order of transfer in the record cannot be complained of by the appellant in the absence of a timely plea to the jurisdiction on that ground. Not being thus raised, the presumption of regularity obtains. Gower v. State, Tex.Cr.App., 332 S.W.2d 328, and McNeal v. State, Tex.Cr.App., 346 S.W.2d 345.

The failure of a bail bond to recite that the principal appear “for any and all subsequent proceedings had relative to the charge” in accordance with the provisions of Article 275a, Vernon’s Ann.C.C.P., does not, as appellant contends in his supplemental brief, vitiate the bond. Ray et al. v. State, Tex.Cr.App., 350 S.W.2d 653.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

license: Public Domain

text:
    James R. WELCH et al., Appellants, v. STATE of Texas, Appellee.
    No. 33697.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Don E. Burdette, Jack Mackin, Toby Goldsmith, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., G. V. M. Min-ton, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from a final judgment entered against the appellants in a bond forfeiture proceeding.

The disposition hereof is controlled by the decision in Daniels et al. v. State, Tex.Cr.App., No. 33,696, 352 S.W.2d 267, this day decided.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Joyce Marie CARR et al., Appellants, v. STATE of Texas, Appellee.
    No. 33698.
    Court of Criminal Appeal of Texas.
    Nov. 29, 1961.
    Don E. Burdette, Jack Mackin, Toby ■Goldsmith, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., G. V. M. Minton, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, dor the State.
   BELCHER, Commissioner.

This is an appeal from a final judgment ■entered against the appellants in a bond •forfeiture proceeding.

The disposition hereof is controlled by the decision in Daniels et al. v. State, Tex.Cr.App., 352 S.W.2d 267.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Kenneth W. CARR et al., Appellants, v. STATE of Texas, Appellee.
    No. 33699.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Don E. Burdette, Jack Mackin, Toby Goldsmith, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., G. V. M. Minton, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from a final judgment entered against the appellants in a bond forfeiture proceeding.

The disposition hereof is controlled by the decision in Daniels et al. v. State, Tex.Cr.App., No. 33,696, 352 S.W.2d 267, this day decided.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Carl R. JONES, Appellant, v. STATE of Texas, Appellee.
    No. 33962.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Alvin G. Khoury, Earl Roberts, Jr., Long-view, for appellant.
    Ralph Prince, Dist. Atty., Longview, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery; the. punishment, 20 years.

W. H. Warlick and his wife were seated at different places in their rural store on the night in question when appellant entered and approached Mrs. Warlick at the cash register with a .45 caliber pistol in his. hand, told her it was a holdup and that he-wanted the money. When Mr. Warlick called out to their son Lewis, another man-entered the store, armed with a smaller caliber pistol, and said, “Be quiet before I blow you half in two.” Appellant repeated the warning. Appellant and his companion, marched the Warlicks to the back of the store, where they were required to lie on the floor and their hands and legs were taped up to prevent movement. On the way to the rear of the store, Warlick observed appellant open the cash register and take out the money. While they were lying on the floor, the Warlicks heard the noise of glass rattling, coming from where they displayed pocket knives and Admiral watches. When they liberated themselves, they found their cash register empty, approximately twenty dollars was missing from a cigar box which they kept under the counter, and that all their Admiral watches and pocket knives were gone. The police at Kilgore were notified. Earlier in the day, Warlick had observed appellant in an old model, large, dark green automobile. The Warlicks picked appellant and his companion out of a police lineup the following day.

Within minutes after the robbery, the constable arrived upon the scene and, after talking to witnesses, broadcast the description of the automobile in which appellant was traveling.

Later that night, the -Shreveport, Louisiana, sheriff’s department received information to be on the lookout for a 1949 model, green Buick bearing a, California license plate. When such an automobile was spotted on the east side of the city parked at a filling station, further inquiries were made by means of the police radio, and appellant and his companion were apprehended. A search of the Buick revealed two pistols, several Admiral watches, and various pocket knives.

Appellant did not testify or offer any evidence in his own behalf.

The Warlicks were positive in their identification of appellant, and we find the evidence sufficient to support the conviction. We shall discuss the contentions in the order advanced by brief and in argument.

The indictment alleged that “money of the United States of the sum of forty dollars” was taken by means of the robbery. Appellant contends that the State has failed to support such allegation. While Warlick testified that all the “money” was taken from the cash register, he did testify further that “twenty or twenty five dollars * * * in cash, money of the United States” was taken from the cash box. Howell v. State, 154 Tex.Cr.R. 8, 224 S.W.2d 228, 232, and the cases there cited are authority for the rule that “proof that less money of the same character was taken than that alleged is not a variance.” The fact that the court charged in the terms of the indictment would not affect this rule.

By bill of exception appellant complains of the action of the trial court in sustaining the State’s challenge for cause of venireman Woodall, who said he was hard of hearing. The bill reflects that the careful trial court conducted an experiment from which he concluded that Woodall’s statement was correct and then excused him.. Bitela v. State, 162 Tex.Cr.R. 319, 285 S.W.2d 726, 727, and the cases there cited are authority for the rule that “for an ac-' cused to show injury resulting from the sustaining of a challenge by the State, he must show that he was forced to accept an objectionable juror.” There is no such showing in the case at bar, and no reversible error appears.

Appellant next complains of the evidence concerning the search of appellant’s person and that of the automobile. According to the bill, in the absence of the jury on the issue of probable cause, the court heard testimony from the deputy sheriff from Louisiana who made the arrest that he had information that a felony warrant of arrest had been issued for appellant and his companion. He testified before the jury, apparently without objection (the statement of facts is in narrative form), that he had learned the description of the automobile and its occupants from a regular police radio broadcast. This is exactly the type of information which this Court held in Vaughn v. State, 134 Tex.Cr.R. 97, 113 S.W.2d 895, and Beeland v. State, 149 Tex.Cr.App. 272, 193 S.W.2d 687, was sufficient to authorize an arrest without a warrant under Article 215, Vernon’s Ann.C.C.P. The original arrest being lawful, the subsequent search of the automobile was authorized. Constant v. State, 155 Tex.Cr.R. 6, 229 S.W.2d 791.

During an examination of the injured party, he stated that he would know appellant’s companion in the robbery if he saw him again. When the companion was brought to the door of the courtroom for identification, appellant objected, and now contends that this was error because the companion was only 17 years old. In Haley v. State, 157 Tex.Cr.R. 150, 247 S.W.2d 400, we held it not error to bring the injured child to the courtroom door so that she might be seen by the jury.

The next bill relates to argument. Warlick testified that when appellant entered the store and made the demand for the money he had so placed himself that both he and his wife would be in appellant’s line of fire. In his argument, the prosecutor observed that this looked like the action of an old hand at the job. We have concluded that this was a reasonable deduction from the evidence and does not constitute reversible error.

At another time in his argument, the prosecutor said:

“The testimony shows that the defendant said, ‘If he makes a move blow him in two,’ and don’t you know, if Mr. Warlick had moved a finger we wouldn’t be trying the defendant for robbery, we would be trying him for murder.”

The objection to such argument was that it was inflammatory and the prosecutor replied that it was so intended. In Thompson v. State, 90 Tex.Cr.R. 125, 234 S.W. 406, this Court held it not reversible error for the prosecutor to argue that the accused had prepared for murder to effect the robbery where the facts, such as we have before us here, authorized such a conclusion.

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


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Vincent Francis TONNAN, Appellant, v. STATE of Texas, Appellee.
    No. 33296.
    Court of Criminal Appeals of Texas.
    June 14, 1961.
    Rehearing Denied Oct. 18, 1961.
    Second Motion for Rehearing Denied Nov. 22, 1961.

      John J. Pichinson (On Appeal), Corpus Christi, Wm. Brode Mobley, Jr. (On Appeal), Corpus Christi, Jon Coffee, Austin, for appellant.
    Harold Vittitoe, County Atty., Falfur-rias, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

Border Patrolman Wright testified that on the night in question he observed a station wagon pass his patrol station without heeding the stop sign, proceed some 50 or 75 yards farther down the road, apply its brakes and almost collide with the back end of a truck; that after coming to a halt the station wagon began to back up, nearly running over his partner Helms; that he stepped up to the vehicle, and that appellant, who was the driver, got out and spoke to him. He stated that appellant smelled of intoxicating beverages, was unsteady on his feet, spoke with a thick tongue, and inquired of him, “Don’t you think I am doing pretty good?” He testified that appellant’s explanation was that he had “topped that hill right there” and had come upon the truck when, in fact, there was no hill in the vicinity; that he expressed the opinion that appellant was intoxicated and in no condition to drive, took his automobile keys from him and instructed him to wait, and that he sent word for the highway patrol to come for appellant.

Helms testified to substantially the same state of facts as had Wright. He said that appellant had quite a bit of trouble forming his words, that his eyes were red, that he staggered, and that he remained there at the station for approximately 45 minutes until the highway patrol arrived.

Highway Patrolman Brothers testified that when he arrived at the border patrol station he asked appellant if he had been drinking and appellant said that he had had a few beers; he noticed that appellant was unsteady on his feet and informed him that he was placing him under arrest for driving while intoxicated. He further testified that he took appellant to the Brooks County Hospital at Falfurrias, where, with appellant’s consent, nurse Hale took a sample of his blood which was placed in a vial and which he, in turn, placed in a container together with a submission form bearing appellant’s name and description, his (the witness’s) signature, and the date of the offense, all of which were mailed to the Department of Public Safety laboratory at Corpus Christi.

Chemist and toxicologist Bickham of said laboratory testified that he received the container with the vial and the submission form bearing appellant’s name and description and Brothers’ signature; that he conducted an examination of the contents of the vial and found the blood to contain .25 per cent alcohol, which, according to standards of the American Medical Association and the National Safety Council, was indicative of intoxication.

Appellant, testifying in his own behalf, stated that he and his wife started out on the morning in question to go bird hunting, carrying a case of beer with them in the automobile; that during the course of the afternoon and early evening he drank “six or seven cans” of beer until he was stopped by the border patrol; that they required him to wait at the station for more than an hour, and that during that time of waiting he drank four more cans of beer. He denied that he was intoxicated at the time he was stopped, but admitted that he was somewhat under the influence by the time the highway patrol arrived.

His wife corroborated his testimony.

The two border patrolmen testified that they did not see appellant drink anything while waiting for the highway patrol and stated that they saw only one can of beer in the station wagon.

It is contended by brief and in argument that the trial court certified error in bill of exception No. 1 in which it is recited that he erred in overruling appellant’s objection to the admissibility of the results of the blood test because proper custody had not been shown and that therefore the evidence was insufficient to convict. Appellant overlooks the recent holdings of this Court in Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808; Bowles v. State, Tex.Cr.App., 324 S.W.2d 841, and the cases therein cited, that, where this Court has the entire matter before us, we will not be bound by a trial court’s certificate of error. The only discrepancy in the chain of custody to which our attention has been called is the fact that the submission form which accompanied the vial showed the date of the offense but not the date when the test was taken and the container itself bore a postmark which resembled the word “alien” whereas the patrolman testified that he mailed the same at Falfurrias. We have concluded that these two omissions and discrepancies, in view of the other undisputed facts, would not render the chain of custody incomplete.

Bill of exception No. 2 relates to the court’s charge and reflects on its face that no objections were leveled to the charge. The charge as given was taken from the records of this Court in Atkinson v. State, 157 Tex.Cr.R. 556, 251 S.W.2d 401, and is set forth in 2 Branch’s Ann.P.C., Sec. 1495.-1, p. 501. For the reasons set forth above, we refuse to be bound by . the court’s certificate of error in such respect.

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

On Appellant’s Second Motion for Rehearing

WOODLEY, Presiding Judge.

The statement of facts filed herein, being a photostat of a purported statement of facts, including a photostat of purported signatures, does not comply with Art. 759a, Vernon’s Ann.C.C.P., and should not have been considered.

We are not impressed with the contention that Bill of Exception No. 1 certifies error requiring reversal. The bill relates to the blood sample tested by a chemist and the testimony as to its alcohol content. It certifies that the defendant “objected and excepted to the introduction of a vial containing the blood of the defendant.”

Appellant’s second motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Fred V. RANGEL, Appellant, v. STATE of Texas, Appellee.
    No. 33668.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    William J. Gillespie, Lubbock, for appellant.
    George E. Gilkerson, Dist. Atty., and George H. Nelson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is indecent exposure to a minor child; the punishment, 3 years confinement in the penitentiary.

The State’s evidence shows that the appellant was arrested around 4:30 P.M., on Christmas Day, 1959, at a theatre in the City of Lubbock by certain officers who had gone to the theatre to make an investigation. When the officers walked to where appellant was seated, they observed him pull the zipper up on his trousers.

The prosecutrix, 12 years of age, testified that on two separate days, December 24th and 25th, 1959, she went to the theatre with her 10 year old sister. She stated that on December 24th, they were seated in the middle section and appellant, while seated on the second row in front of them, was showing his “private piper” which she explained is what a man uses “to go to the rest room.” She stated that appellant placed his hand upon his “private piper”; that she could see his private part and while he was so conducting himself, appellant was looking back “cutting his eyes” towards them and making a “hissing noise.” The prosecutrix testified that when she and her sister returned to the show on December 25th, appellant was in the theatre and she again saw his “private piper” when her attention was directed to appellant making “sort of a hissing noise” through his teeth.

The prosecutrix’s 10 year old sister, upon being called as a witness, corroborated her testimony relative to appellant exposing his private parts to them on both days, December 24th and 25th. The prosecutrix’s 13 year old brother testified that he was also in the theatre on December 24th and 25th. He testified that on December 25th, he saw appellant “playing with his private parts” and at such time appellant made “funny noises” to get his sisters’ attention.

Appellant, testifying as a witness in his own behalf, denied going to The theatre on December 24th; admitted going on December 25th, but denied exposing his private parts on such occasion. Appellant admitted that when arrested the zipper on his trousers was partially open, but explained that it was broken. Appellant testified as to his whereabouts on the afternoon of December 24th and called his wife and other witnesses to corroborate his testimony.

At the conclusion of the testimony the State elected to rely on the transactions occurring on December 25, 1959, and the court so informed the jury in his charge.

The indictment alleges that the offense was committed “on or about December 24, 1959.”

The State was not bound by the date alleged in the indictment and could prove that the offense was committed before, on, or after the date alleged so long as the date was anterior to the presentment of the indictment and not barred by limitations. Madeley v. State, 165 Tex.Cr.R. 351, 307 S.W.2d 584.

The court further instructed the jury that the testimony admitted concerning the transactions on December 24, 1959, was admitted solely for the purpose of showing, if it did, the intent and identity of appellant at the time of the transaction on December 25, 1959, and the jury, if they considered such testimony, should consider it solely for the purpose for which it was admitted and for no other.

We are unable to agree that the court erred in refusing to instruct the jury that they could not consider the evidence relating to the transaction on December 24, 1959, for any purpose whatever. Such evidence was admissible on the question of appellant’s intent and to rebut his testimony and theory that the exposure of his person on, December 25th, was by reason of a defective zipper and therefore unintentional. Sutton v. State, Tex.Cr.App., 343 S.W.2d 452. While the identity of appellant was undisputed, an issue was made as to appellant’s intent in the transaction on December 25th. The court by the charge properly limited the jury’s consideration of the evidence to such issue of intent. Harvey v. State, 57 Tex.Cr.R. 5, 121 S.W. 501.

Complaint is made to the court’s action in overruling appellant’s second application for continuance because of the absence of the witness, Pauline Barrientes. The application was not sworn to by appellant as required by Art. 545, Vernon’s Ann. C.C.P. and was by the court properly overruled. McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521.

We overrule appellant’s contention that the evidence is insufficient to sustain the conviction because it does not show that he intentionally exposed his private parts to the prosecutrix. The testimony of the State’s witnesses that at the time appellant was exposing his private parts, he was looking back toward the two young girls and making a “hissing” sound so as to attract their attention, was clearly sufficient to support the jury’s finding that he knowingly and intentionally, with lascivious intent, exposed his privates to the prosecutrix, as charged in the indictment.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Fonda CRAYTON, Appellant, v. STATE of Texas, Appellee.
    No. 33724.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for transporting whiskey and vodka in a dry area with a prior conviction of an offense of a like character alleged for enhancement; the punishment, 120 days in jail and a fine of $1,000.

Proof was offered that Lamb County was a dry area, and the alleged prior conviction was properly shown. Further, the appellant, while testifying, admitted that he had been so convicted.

The testimony of Deputy Sheriff Mc-Neese, Constable Drake, and the appellant shows that the officers, .while driving an automobile, pursued the appellant, who was alone in his automobile, along a paved public highway in Lamb County for about three miles, and then for more than two miles on a dirt road, until appellant’s car entered and became bogged down in a field where he was apprehended by the officers. The officers testified that the appellant was seen driving from 110 to 115 miles per hour, on the highway, which speed he reduced some after turning on to the dirt road. The appellant testified that his speed during the time was from 55 to 60 miles per hour. While testifying, the appellant admitted that he had 48 half pints of whiskey and vodka in his car during the chase. He stated that he threw some of it out because he thought that it would be better to get rid of it as he was a colored man. The testimony of the officers shows that they saw the appellant throw some of the whiskey out of the car and the other was in the car when he was apprehended.

Testifying in his own behalf, the appellant admitted that he transported the whiskey and vodka, hut said that he had it for his own consumption, and that frequently he gave some of his friends a drink. He further testified that he bought it in a wet area, in Castro County, and was taking it to his home in Lamb County. In explaining the quantity, he said that it was cheaper to buy as he did than from a bootlegger, and also he did not have to make as many trips to the wet area for it. Two witnesses called by the appellant testified that he had given them drinks of whiskey and also to other persons.

In the court’s charge, the appellant’s defense which he had raised by his testimony, in accordance with Art. 666-23a(l), Vernon’s Ann.P.C., was submitted to the jury. It instructed them to find the appellant not guilty if they believed, or had a reasonable doubt thereof, that the appellant was transporting the intoxicants which he had legally purchased in a wet area to his home for his own consumption

Error is urged on the ground that the state was permitted to offer testimony of another separate and distinct offense or offenses committed by the appellant. He argues that they consisted of speeding and two other traffic offenses

In the absence of the jury, the appellant offered evidence that he was charged in justice court with committing three traffic violations on the same date of the commission of the alleged offense on trial. No .evidence of such charges being filed was introduced before the jury. The testimony showing any traffic violations by the appellant while the officers were pursuing him was admissible in evidence for the purpose of showing the legality of the arrest and search.

The complaint made of Deputy Sheriff McNeese being permitted to draw a diagram while testifying, showing the highway and roads traveled by them in pursuing the appellant, does not show any prejudice, hence no error is shown.

The objection to the question and’ answer during the examination of Officer McNeese showing that a man could have thrown whiskey from the road into a field,, on the ground that it was a conclusion,, shows no error as the question was withdrawn, and the court instructed the jury not to consider the answer as any evidence.

Appellant complains of the testimony of Officer McNeese which shows that had he been able to pull up beside the appellant he would have tried to pull him over against his objection that it was supposition and prejudicial.

It is evident that the facts and circumstances in evidence showing the pursuit and apprehension of the appellant would reasonably warrant such a deduction and conclusion by an ordinary person. No error is perceived.

Eliciting testimony from the appellant on cross-examination about the appeal' and affirmance of the prior conviction alleged, which had been previously shown by proof and which he had already admitted while testifying, without objection, shows no error.

The appellant complains of Officer Mc-Necse’s reply to the question asking if he-had forced the appellant to turn west on to the dirt road. The officer answered: “No, sir, I did not sir. The only way was me getting so close to him that he had to”,. and this reveals no error.

The remaining contentions of the appellant have been considered, and they do not show error.

The jury resolved the issue of fact against the appellant, and the evidence is sufficient to sustain their verdict.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Leonard Lytton LOOKABAUGH, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 33755.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    William O. Braecklein, Dallas, for appellant.
    Henry Wade, Dist. Atty., Paul French, O. H. Harris, John Rogers and Phil Burle-son, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary other than to observe that there is no evidence in the record that appellant had ever before been convicted of any offense.

In his argument to the jury, appellant’s counsel urged them to acquit appellant because if they convicted him it would mean that he had to go to jail and that such fact would ruin his life.

In his closing argument, the prosecutor said, “It’s a reasonable deduction, since he went into this, that this isn’t the first time this man has been in jail.” After the motion for mistrial was overruled, the prosecutor continued, “You are not going to degrade him and you’re not going to ruin his life. I can’t go any further. I have been overruled on that.”

As stated, we find nothing in the record to authorize the “reasonable deduction” of the prosecutor that appellant had prior to the commission of this offense been confined in jail on other charges. The testimony reflected no prior confinement in jail. The purpose of argument is to assist the jury in properly analyzing the evidence and arriving at a verdict based on the evidence alone. By this unsworn statement, the prosecutor got before the jury evidence which was outside the record and extremely harmful to accused. We have consistently held that such conduct constitutes reversible error. See Kirk v. State, 159 Tex.Cr.R. 124, 261 S.W.2d 721; Gonzales v. State, 159 Tex.Cr.R. 108, 261 S.W.2d 577, and the cases there cited.

For the error pointed out, the judgment is reversed and the cause is remanded.

WOODLEY, Presiding Judge

(dissenting) .

The sole ground for reversal presented is predicated upon the court’s refusal to declare a mistrial during the closing argument of counsel for the state because said counsel argued:

“The other statement that I don’t think he needed to say, ‘That you’re going to ruin this guy’s life by putting him over here in the jail.’ It’s a reasonable deduction since he went into this that this isn’t the first time this man has been in jail.”

The trial judge sustained appellant’s objection and instructed the jury to disregard such remarks, but overruled appellant’s motion for mistrial.

Appellant’s counsel, who the evidence shows was the roommate of the appellant in their school days, had argued: “Make no mistake about the fact that you have ruined his life if you find him guilty because he has to go to jail. It’s not like * * * a murder without malice case where you can give him a suspended sentence. You’ve got to put him in jail and you’ve got to destroy him. * * *" This appeal, in effect, represented to' the jury'that appellant had not previously served time in jail for an offense.

If in fact the appellant had served one or more jail terms, it is apparent that the jury would have been misled by the argument that the jury would ruin his life if they'convicted him because he would have to go to jail. On the other hand, if appellant had not served time in jail for an offense, the remarks complained of would be so prejudicial as to require that a mistrial be ordered.

There are no formal bills of exception. If the objection to argument of state’s counsel is before us at all, it is by informal bill of exception under Art. 759a, Sec. 2(c), Vernon’s Ann.C.C.P.

Art. 667, C.C.P. as amended in 1953-(Art. 667, Vernon’s Ann.C.C.P.), relates to informal as well as formal bills of exception. It provides in part that where by the argument complained of some new fact is thereby injected into the case the trial court, by qualification or otherwise, may require the bill of exception to reflect any reason whereby the argument complained of would not be error.

The trial judge does not appear to have been given the opportunity to require the record presented as an informal bill to reflect “any reason whereby the argument complained of would not be error”, as required by said Art. 667, V.A.C.C.P. He did not approve the transcript of the argument.

The motion and amended motion for new trial are silent as to any error in the argument or in the overruling of the motion for mistrial.

This case, I think, demonstrates the correctness of the views I expressed in Kinnebrew v. State, Tex.Cr.App., 324 S.W.2d 554, 556, and in Wells v. State, Tex.Cr.App., 324 S.W.2d 860. The presumption is that the trial judge ruled correctly when he declined to order a mistrial during the closing argument.

I would affirm the conviction.


text:
    Jack Earl KEMP, Appellant, v. STATE of Texas, Appellee.
    No. 33868.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    Jack Mackin, Mackin, Goldsmith & Bur-dette, Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary of a private residence at night; the punishment, five years.

The act charged was amply established by the evidence, and appellant, while testifying in his own behalf, admitted that while acting with one McGuire he had participated in the burglary and the sale of the fruits thereof but claimed that he did so because of his fear of McGuire, who always carried a pistol loaded with live shells upon his person and who by means of serious threats against him and members of his family had coerced him into joining him in the criminal enterprise.

This defense was adequately presented to the jury in the court’s charge; they failed to accept it, and we find the evidence sufficient to support the conviction

During the course of the cross-examination of accused, the prosecutor began to question him concerning what McGuire had told the officers at the time he and appellant made written confessions while in the same room together. He was first asked if he heard McGuire say, “My name is Eugene McGuire. I live at 1818 Nora Drive, Arlington, Texas. I am 23 years old and married and have a child.” The court did not err in overruling the objection interposed at this juncture because nothing incriminating against appellant had been elicited. Following this, appellant’s counsel said:

“Mr. Mackin: Your Honor, at this time, each and every portion he reads in connection with the interrogation of the defendant, may I have the same objection?
“The Court: You may repeat it or repeat it by reference. I will overrule your objection.”

We have concluded that it is apparent from the court’s ruling that he intended for appellant to object to each question thereafter or waive his objection thereto. Thereafter, when the questions were asked which might be considered as incriminating, no objections were interposed, and we must hold that they were waived.

Such holding disposes of appellant’s one question presented for review.

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


text:
    Spencer RUSHING, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 33875.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, annd Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery; the punishment, 15 years.

- While testifying at the trial, the manager and two other drug store employees each identified the appellant as the person who •entered the store about 11:55 P.M., exhibited a pistol, and demanded money. The manager testified that she gave him the money which she was counting because she was afraid that he would kill her. She •stated that as he grabbed the money, she stooped behind the counter, and he shot where she had been standing. When she raised up, he shot again, and then fired a third shot as he was fleeing the store.

Two witnesses testified that they were sitting on the porch of a nearby residence when they heard three shots, and that immediately thereafter a man ran from the drug store and passed by them whom they identified as the appellant. Gne of the witnesses stated that she had seen the appellant pass by her home several times in a car, later park it, and that he ran to the same car and fled in it after she heard the shots.

The owner of the drug store testified that when he was getting in his car to leave the store about 10 P.M., he saw the appellant parked in his car not more than eight feet away.

Testifying in his own behalf, the appellant denied committing the robbery and named and described another and different place where he said he was during the time of the robbery. He offered several witnesses whose testimony corroborated his alibi.

The court, in its charge, submitted the appellant’s defense of alibi to the jury, and they found against him.

The evidence is sufficient to sustain the conviction.

There are no formal bills of exception.

Appellant insists that the trial court erred in refusing to grant his motion for a continuance on the grounds of the illness and temporarily impaired hearing of his attorney.

There is no authentication by the trial judge in the record that the motion was presented to and acted on by him. Therefore, nothing is presented for review. Art. 760e, Vernon’s Ann.C.C.P.; Bullard v. State, Tex.Cr.App., 331 S.W.2d 222. Also, no affidavits of the illness or disability of the attorney were attached to the motion for continuance. The record shows that the attorney appeared and participated at the trial. The refusal to grant the motion was not error.

In his brief, appellant contends that the court’s charge to the jury placed a lesser burden of proof on the state than the law requires.

No objections to the charge or requested instructions appear in the record. An examination of the charge shows that the court required the jury to find beyond a reasonable doubt all of the essential elements of the offense charged before they could find the appellant guilty, and then the court applied the law of reasonable doubt thereto. No error appears.

The appellant contends that the trial court erred in refusing his request to perfect his bill of exception in the absence of the jury at the time of the court’s exclusion of proffered evidence.

Thereafter, and before the evidence closed, the court offered the appellant an opportunity to perfect his bill of exception in the absence of the jury, which he declined. In this, no reversible error is presented. Davidson v. State, 162 Tex.Cr.R. 640, 288 S.W.2d 93; Pate v. State, Tex.Cr.App., 345 S.W.2d 532.

Error is urged on the ground that the trial court refused appellant’s request to direct the issuance of process for the members of the jury in order for him to develop evidence showing jury misconduct on the hearing of his amended motion for a new trial.

The sole allegations pertaining to jury misconduct in the amended motion for new trial were: “That the jury, after having retired to deliberate, was guilty of misconduct of such a degree as not to allow the defendant a fair and' impartial trial.” No specific averments of facts of jury misconduct were made. In the motion, he made no request for the issuance of summons for the jury. No affidavit of any kind was referred to or attached to said motion, nor was it stated therein that he had exercised diligence to obtain such affidavit, but was unable to do so

The refusal to cause process to be issued for the appearance of the members of the jury does not show error. Fulcher v. State, 163 Tex.Cr.R. 177, 289 S.W.2d 588.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Earl LINCOLN, Appellant, v. STATE of Texas, Appellee.
    No. 33949.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted upon a plea of guilty of the offense of murder and his punishment assessed at confinement in the penitentiary for a term of 7 years.

The record contains no statement of facts of the evidence adduced upon the trial, and there are no bills of exception.

The judgment rendered by the court upon the jury’s verdict ordered that appellant be confined in the penitentiary for a term of 7 years.

The sentence pronounced by the court ordered that appellant be confined in the penitentiary for a term of not less than 2 nor more than 5 years. The sentence is reformed to comply with the judgment of the court, so as to order that appellant be confined in the penitentiary for an indeterminate term of not less than 2 nor more than 7 years.

As reformed, the judgment is affirmed.

Opinion approved by the Court.


text:
    Roscoe PETTY, Appellant, v. STATE of Texas, Appellee.
    No. 33950.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Leland D. Sutton, Abilene (On Appeal! Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder ; the punishment, six years.

The State’s evidence reflects that appellant without any provocation stabbed the injured party in the stomach with a knife which penetrated four inches and cut the small intestine in five places. The doctor who treated the injured party described the-wound as one which, without prompt medical care, would probably have resulted in death from the loss of blood.

There was a great deal of evidence pro and con on the question of whether appellant had been drinking, but appellant and his wife testified to facts which could be construed as supporting the defense of temporary insanity. Appellant stated that he did not remember anything in connection with the cutting. Under an appropriate charge, this defense was presented to the jury, was by them rejected, and we. find the evidence sufficient to sustain the conviction. We shall discuss the questions raised by brief and in argument.

Appellant first contends that the hearing on the motion for new trial was conducted in his absence. No formal or informal bills of exception appear in the record complaining of such fact, and the question was raised for the first time in this Court on appeal. This Court held in Beard v. State, 164 Tex.Cr.R. 502, 305 S.W.2d 291, that a formal bill was requisite to raise this question. The case at bar is a far stronger case than Beard or Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158, upon which appellant relies, because when the district attorney called the court’s attention to appellant’s absence and the court stated that he did not believe that they might proceed, appellant’s then counsel urged the court to hear the evidence, even though appellant was not present, and agreed to raise no objection to the fact that appellant was not present. Subsequent to the hearing, appellant has employed another attorney (his third in this case), and he now raises the question in his brief. In Beard, we called attention to the holding in Garcia v. State, 5 Tex.App. 337, to the effect that if appellant had complained to the trial court about such hearing being held in his absence the court would have had an opportunity to rehear the evidence in appellant’s presence. We are aware of nothing in Article 755, Vernon’s Ann.C.C.P., as amended, which would prevent this from being done. We do not rely upon waiver, which the court refused to consider in Ruiz v. State, 92 Tex.Cr.R. 73, 242 S.W. 231, but upon the failure of accused to move the court to rehear the evidence in his presence. In short, there is no ruling of the trial court upon which we might predicate a reversal, and the question here raised we do not deem fundamental error.

Appellant next complains of alleged jury misconduct. He relies upon the testimony of five jurors. Juror Keesee testified that sometime prior to the trial he had talked with Dr. Havins, a then member of the Prison Board, was informed that medical treatment was available for inmates, and that he relayed this information to his fellow jurors. He testified further that he explained to his fellow jurors the treatment given first offenders. Juror Starkey testified that an unidentified juror told the other members of the jury about a man who had been sentenced to ten years and had to serve “about three years or something” and that there was a general discussion if the prison authorities thought there was something wrong with appellant the jurors wanted him to get “enough time to get cured.”

Juror Ragsdale testified that there “was a little discussion” to the effect that appellant should be given a longer sentence so that he would have ample time to receive all the treatment he needed but that one juror spoke up and said that such was not a matter for their consideration.

Juror Damron testified that there was some discussion in the jury room about how long appellant would have to serve on a given sentence (he did not elaborate as to what the discussion was) and that one juror said he had heard of a case in which the accused got ten years and was out in “about three years.” Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168, and Washington v. State, 161 Tex.Cr.R. 440, 277 S.W.2d 721, upon which appellant relies, do not support his contention that what has been set forth above constituted such jury misconduct as to call for a reversal of the conviction.

Appellant’s last contention is that his trial attorney was not competent. So far as this record reveals, such attorney was of appellant’s own choosing. In those cases where the court selects and appoints the attorney to represent an accused, this Court reviews carefully the competency of the attorney. Where the acctlsed selects his own counsel, such review is not so searching. Rodriguez v. State, Tex.Cr.App., 340 S.W.2d 61.

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

WOODLEY, Presiding Judge.

I concur in the affirmance of this conviction because appellant was not in custody, but was on bond, and because the question of his absence at the hearing on his motion for new trial is not raised.


author: WOODLEY, Presiding Judge.

text:
    Benito S. FLORES, Appellant, v. STATE of Texas, Appellee.
    No. 33656.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    Floyd D. James, San Antonio, for appellant.
    Charles J. Lieck, Jr., Dist. Atty., Jack Paul Leon and Harry A. Nass, Jr., Asst. Dist. Attys., San Antonio, and Leon B. Douglas, Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced by reason of a previous conviction for burglary, 12 years.

The conduct of appellant’s counsel, which the trial judge has referred to as inattention and negligence, has made the disposition of this appeal more difficult.

The case was briefed and argued by counsel for the appellant as though there was no statement of facts. The State, on the other hand, has filed a brief but has not mentioned the only matter which we have found difficult to decide.

The statement of facts, in narrative form, was approved by the trial judge more than 90 days after notice of appeal was given. Under Sec. 4 of Art. 759a, Vernon’s Ann.C.C.P., as amended in 1959, this is sufficient proof that the time for filing was properly extended, and appellant is entitled to have the statement of facts considered.

The evidence from the state’s viewpoint shows that a small grocery store was burglarized at night; that three young men were spotted by a police patrol car. They ran, scattering some groceries and canned goods. Other similar merchandise was found wrapped in a jacket under an automobile.

Among the groceries and canned goods found was a can bearing a fingerprint which was identified, by comparision with his known fingerprints, as that of the appellant who was apprehended nearby. He directed the officers to the grocery store, the burglary of which had not been discovered. The owner identified some of the groceries and canned goods by his mark thereon.

Appellant was taken to police headquarters where he signed a statement in which he confessed to having burglarized the grocery store.

Sergeant Bernal, to whom the statement was made, testified to the warning given by him. His testimony shows a compliance with Art. 727, V.A.C.C.P. He testified that the statement was voluntarily made after the said warning.

When the confession was offered appellant’s counsel obj ected on the ground it had been secured by an unlawful arrest “as well as illegally beaten out of said defendant by said police officers.” He declined to introduce evidence to support his objection, and the court admitted the confession in evidence. We see no error.

No effort was made to interrogate Sgt. Bernal regarding whether appellant was beaten by him or in his presence.

Appellant thereafter testified in his own behalf. According to his testimony Sgt. Bernal hit him in the stomach, at the place where the groceries were found, while he was handcuffed, causing him to “blackout”; that he started hitting him again when he told Sgt. Bernal he was not guilty; that Sgt. Bernal made him say he had robbed the store, and that at Police Headquarters where he signed the statement, Sgt. Bernal beat him with his fists in the chest or the stomach and said he had to sign it. Sgt. Bernal was not recalled and no other witness denied appellant’s claim that he was beaten at police headquarters.

Under many holdings of this Court and the Supreme Court of the United States, appellant’s testimony, if true, would render his confession inadmissible.

In Holt v. State, 151 Tex.Cr.R. 399, 208 S.W.2d 643, 645, Holt’s testimony that he was beaten and whipped was not denied by the sheriff he testified participated. This Court said “that he was so mistreated must be here construed as an established fact,” and held that the confession was not admissible and no issue was raised for the jury’s determination.

We find it unnecessary to here decide whether appellant’s testimony was such as to require the court to withdraw the confession rather than submit to the jury the issue of its being voluntarily made.

The record does not show that appellant or his counsel sought to have the confession withdrawn after appellant testified, and the record shows no objection, and no requested charge complaining of the manner or form of the charge wherein the voluntary character of the confession was submitted to the jury.

If, as appellant testified, the confession used against him to secure his conviction was obtained as a result of physical mistreatment by Sgt. Bernal, his conviction should be set aside. We are bound, however, to pass upon the appeal from the record before us.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    Pearly HUNTER, Individually and as Guardian of the Estate of Dorothy Ann Murphy, a Minor, Appellant, v. Helen STRUGGS, Guardian of the Estate of Don Henry Hunter, a Minor, Appellee.
    No. 13823.
    Court of Civil Appeals of Texas. Houston.
    Nov. 16, 1961.
    Rehearing Denied Dec. 7, 1961.
    W. D. Avra, Houston, for appellant.
    Russell T. Van Keuren, Don K. Townsend, Houston, for appellee.
   BELL, Chief Justice.

Pearly Hunter, Individually and as Guardian of the Estate of Dorothy Ann Murphy, a Minor, sued Helen Struggs, Guardian of the Estate of Don Henry Hunter, a Minor, to establish ownership of Lot 74 in Block 3 of Carvers Terrace Addition in the City of Houston, and to thereby establish the right to the sum of $1,674.00 that was in the registry of the County Court at Law, this amount being the value paid in condemnation by the State of Texas for the property. Plaintiff’s position was that she, Dorothy Ann Murphy and Don Henry Hunter (also known as Don Henry Johnson) each owned a one-third interest in the property at the time of condemnation and were each entitled to one-third of $1,674.00.

The court, in a trial without a jury, held that Don Henry Hunter was the sole owner of the property and was thus entitled to the total compensation paid for it.

John Hunter is the common source of title.

Before Hunter’s marriage to Pearly, he executed a general warranty deed conveying the property to Don Henry Hunter, but reserving a life estate in himself. The date of this deed is October 5, 1951. Appellant attacks this deed by asserting it was not executed by Hunter or by his authority. Too, appellant says the deed was not valid because the notary who took the acknowledgment did not make a record of the acknowledgment as required by Article 5955, Vernon’s Ann.Tex.St.

Appellant claims under a deed from Pearly and John Hunter executed August 21, 1954, which conveyed the fee to Dorothy Ann Murphy and Don Henry Hunter and reserved to the grantors a life estate. Pearly claims her one-third interest because of a life estate she would have in one-third of Hunter’s property, which was his -separate property.

The execution of the deed to ap-pellee’s ward, Don Henry Hunter, was proven by four witnesses who saw John Hunter .sign the deed. Too, the notary who took the acknowledgment testified Helen Struggs brought the deed to him signed and that he required John Hunter to come before him. He then used ink eradicator to erase Hunter’s name and had Hunter sign the deed before him and- acknowledge it. While Pearly testified John was not able to sign his name because of a paralytic stroke, such evidence but raised an issue of fact as to the execution of the deed. The trial judge found that Hunter did execute the deed. The evidence clearly supports such finding.

Article 5955 does require that a notary public keep a record of all instruments acknowledged before him. The statutes nowhere provide a penalty for failing to do so. Certainly, there is no express or implied provision that such failure in any way affects the validity of the instrument. The thing that makes a properly worded deed effective is its execution and delivery. Here it was delivered to Helen Struggs, the agent of Don Henry Hunter. Acknowledgment by the grantor or by a subscribing witness does not add to its validity as a conveyance except where married women are involved. Such acknowledgment is necessary to authorize the recording of the instrument. No question was raised in this case that appellant, a subsequent claimant, purchased without notice of the prior deed which had a faulty acknowledgment.

The deed into Don Henry Hunter being effective, the subsequent deed into him and Dorothy Ann Murphy was ineffective to convey any interest. The deed into Don Henry Hunter alone was on record at the time of the execution of the deed under which appellant claims.

The deed of October 5, 1951 was properly proven.

We have considered all of appellant’s points and they are overruled.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    STANDARD INSURANCE COMPANY, Appellant, v. James BIGGERS, Appellee.
    No. 3960.
    Court of Civil Appeals of Texas. Waco.
    Nov. 30, 1961.
    Rehearing Denied Dec. 21, 1961.

      Strasburger, Price, Kelton, Miller & Martin, John H. Hall, Dallas, for appellant.
    Hill, Brown, Kronzer & Abraham, Bill Allen, Houston, Bowlen Bond, Teague, for appellee.
   McDONALD, Chief Justice.

This is a workmen’s compensation case. Parties will be referred to as in the Trial Court. Plaintiff was injured in the course of his employment, sustaining injuries resulting in a ruptured or herniated disc in his back. Six days before the date set for hearing before the Board, the defendant insurance earner tendered surgery to the plaintiff. The tender was at first accepted but such acceptance was withdrawn Z days later. The Board replied to the insurance carrier: “In accordance with Rule 5.20, your request for Board action of the request for surgery was not timely filed in accordance with present Board Rules”, and advised that it would not act on the insurance carrier’s demand for surgery.

Trial was to a jury and resulted in a verdict of total and permanent disability. The Trial Court entered judgment for plaintiff on the verdict.

Plaintiff appeals on 23 points, the basic contention of all of which is that: “the Board’s so-called 7-day rule is void because it is in conflict with the Statute on the Rule, and even assuming the Board could proclaim a rule dealing with the general subject matter, the application of it to the facts in this case was arbitrary and capricious.”

Based on the foregoing premise, defendant insurance carrier sought to file pleadings and introduce testimony as to the beneficial effect of surgery upon a herniated disc (and limit liability to compensation for 52 weeks under the penalty provisions of Article 8306, Sections 12b and 12e.)

Rule 5.20 of the Board in essence provides that written demand for or tender of surgical operation must be filed with the Board at least 7 calendar days immediately prior to the hearing. Art. 8307, Sec. 4, Vernon’s Ann.Tex.St, authorizes the Board to make rules not inconsistent with the Workmen’s Compensation Law for carrying out and enforcing its provisions.

We think that Rule 5.20 is both valid and reasonable, both generally and as applied to the facts in the case at bar.

Since the insurance carrier’s demand for surgery was not timely filed with the Industrial Accident Board under its Rule 5.20, the Board had ample authority to refuse the insurance carrier’s demand for surgical operation upon plaintiff. Texas Employers’ Ins. Ass’n v. Curry, Tex.Civ.App., W/E Refused, 347 S.W.2d 334.

The Trial Court did not err in refusing to permit defendant insurance carrier to plead, present evidence on, and submit issues on the beneficial effects of an operation; or to limit plaintiff’s recovery under Article 8306. Texas Employers’ Ins. Ass’n v. Curry, Tex.Civ.App., W/E Refused, 347 S.W.2d 334.

All of defendant’s points and the contentions thereunder made are overruled. The judgment of the Trial Court is affirmed.


author: POPE, Justice.

text:
    Autry BEEN et al., Appellants, v. PRODUCERS ASSOCIATION OF SAN ANTONIO, INC. et al., Appellees.
    No. 13917.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 6, 1961.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellants.
    Frank D. Masters, A. R. Sohn, San Antonio, for appellees.
   POPE, Justice.

Autry Been and others have appealed from an order which temporarily enjoined them from acting as directors of the Producers Association of San Antonio, a milk marketing association. The appeal concerns the validity of a special stockholders meeting which removed the regularly elected directors and elected appellants.

Producers Association is composed of more than four hundred members. At its annual meeting on April 29, 1961, it elected directors. During the summer of 1961, D. T. Perry, a non-member, solicited and obtained requests from the required number of stockholders asking for a special meeting. He delivered the requests to Autry Been, a stockholder, who, on July 7, 1961, called a special meeting for July 14, 1961. Prior to the meeting, the officers and directors protested that the call was illegal and offered to call a legal meeting if requested. They were never requested to call the meeting, and no petition for a called meeting was ever filed with the Association officials. The meeting called by Been was conducted on July 14, at Harlandale High School in San Antonio with about two hundred persons present. The directors who were elected at the annual meeting did not attend. The stockholders voted, 145 to 26, to remove all directors. After ousting the directors, the stockholders elected appellants.

On the afternoon after the special meeting, the ousted directors filed this suit. The court restrained the newly elected directors from acting, and upon trial, one week later, temporarily enjoined them. The court found the facts and concluded, among other things, that the special meeting on July 14, 1961, was invalid because it violated the ten-day notice requirement of Article 5747, Vernon’s Tex.Civ.Stats., and because the request for the meeting was not presented to the Board of Directors so they could call a meeting as required by the Association’s by-laws.

The trial court’s decree is affirmed. It is affirmed because the removal of the directors was contrary to the provisions of Article 5751, Vernon’s Tex.Civ.Stats., and because the July 14 meeting was called in violation of the method required by Article 5747. If the meeting was illegal, the trial court properly granted the temporary injunction. Camp v. Shannon, Tex., 348 S.W.2d 517, 4 S.Ct.Jour. 625. The officers and directors of the Association have done nothing to waive any rights under the statute or the by-laws. They did not participate in the special meeting or its call, and continuously have protested that it was not a valid meeting. Camp v. Shannon, supra.

Article 5751 specifically relates to the removal of directors of marketing associations and states the methods which must be followed. A petition was not filed with the Association Secretary. No charges were lodged against any of the directors, and none were filed with the Association Secretary. Since there were no charges, there was no hearing upon any charges. The notice of the meeting was mailed by Autry Been, a stockholder but not an officer. It stated that the purpose of the special meeting was to determine whether to terminate the terms of any of the directors and to elect new directors.

Appellants seek to justify their disregard of Article 5751, because they believed they were following the provisions of the Association’s by-laws. By-laws which conflict with the statutory requirements for marketing associations are controlled by the statute. This is so because Article 5746, Vernon’s Tex.Civ.Stats., and Art. IX, § 5 of the Association’s by-laws so provide. The by-law which the new directors relied upon was Article V, § 3. It authorizes the removal of a director without cause. It makes no provision for charges, nor that they be filed with any one, nor that the director concerned even know of the complaint or be permitted to defend against it. The conflict between the by-law and Article 5751 is as clear as is the difference between charges and no charges, notice and no notice, hearing and no hearing, opportunity to defend and no opportunity to defend.

Article V, § 3, appears to conflict internally with another of the Association bylaws. Section 23 of the same Article is entitled “Removal from Office.” It provides that in addition to the right to remove without cause, the Association may remove for cause by following the steps provided for the expulsion of a member in Article III, § 4(d). By that method, there must be written charges filed with the Secretary or Board of Directors, a hearing and trial, and ten-days’ notice by registered mail to the one charged.

The new directors reason that the by-law method of removal without cause, charges, notice or hearing is merely another method added to the statutory method which requires all of those protective steps. In our opinion, the one method is the opposite of and in conflict with the other. If the argument that the removal without cause is merely an additional non-conflicting provision, then the whole marketing act could be repealed by the adoption of by-laws which provide procedures other than and different from the statutory requirements. The Legislature would not have concerned itself with the statement of procedures it felt were needed, if it regarded them as surplusage or optional. We do not believe the Legislature would have written into the law that directors could_ be removed for cause if they could be removed without cause. The by-law which permits removal without cause, in our opinion, conflicts with Article 5751.

The trial court’s conclusion that the special meeting held on July 14 was invalid is also correct. Article 5747 states that stockholders have the right to call a stockholders meeting. It declares how that meeting shall be called, however. There must be a petition by ten per cent of the members. That petition must be “filed”. After it is filed, “Such meeting must thereupon be called by the directors.” Notice of the meeting “shall be mailed to each member at least ten days prior to the meeting.” The statute then gives the Association an option to give notice by newspaper. There is no contention that this Article was followed. No petition was filed asking for a special meeting. The Board of Directors were not asked to call a meeting, though the undisputed evidence is that they expressed a willingness to do so if properly requested. The ten-day notice requirement was ignored. Here again the argument is made that the by-laws provided an additional method of procedure. Here too, however, the method followed in calling the meeting contravened the procedures required by the Legislature. Article 5747 states that the special meeting “must thereupon be called by the directors.” 2 Hildebrand, Texas Corporations, § 532. It states that notice of “all meetings” shall be mailed to each member “at least” ten days prior to the meeting. These are not careless words. 18 C.J.S. Corporations § 543.

The by-laws required only five days’ notice for special meetings. We do not pass upon the adequacy of that notice for regular business matters. Stockholders’ special meetings, however, are not usual, and Article 5747, in specifically authorizing them, stated that “Such meeting” must be called by the directors with ten days’ notice. In our opinion, the legislative mandate is dominant and must prevail. International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282, 283. The court’s order temporarily enjoining the new directors from acting as such was proper.

The trial court also temporarily enjoined W. M. Donaho, the Manager of the Association, from selling milk in violation of his contract of employment with the Association, and enjoined the Association from making false reports to the marketing administrator concerning the use of milk belonging to the Association members We find those orders are supported and justified by the evidence.

The decree is affirmed.

MURRAY, C. J., disqualified and not sitting.

      . “Art. 5751. Removal of officer or director
      “Any member may bring charges against an officer or director by filing them in writing with the secretary of the association, together with a petition signed by ten per cent of the members, requesting the removal of the officer or director in question. The removal shall be voted upon at the next regular or special meeting of the association, and by a vote of a majority of the members, the association may remove the officer or director and fill the vacancy. The director or officer against whom such charges have been brought shall be informed in writing of the charges previous to the meeting and shall have an opportunity at the meeting to be heard in person or by counsel and to present witnesses; and the person or persons bringing the charges against him shall have the same opportunity. In case the by-laws provide for election of directors by districts with primary elections in each district, then the petition for removal of a director must be signed by twenty per cent of the members residing in the district from which he was elected. The board of directors must call a special meeting of the members residing in that district to consider the removal of the director. By a vote of the majority of the members of that district, the director in question shall be removed from office. Id.”

      . “Section 3. The term of office of any director may be terminated either with or without cause, at any time, by the action at any general or special membership meeting or by the unanimous action of the other directors, or by the resignation of the director.”

      . “Section 23. Removal From Office. In addition to the provisions of Section 3 of this Article, any member of the Board of Directors may be removed from office at any time for a sufficient cause, in the same manner and in the same way as hereinbefore provided in Article III, Section 4(d), governing the expulsion of members of the Association.”

      . “Section 4(d) Expulsion. The Board of Directors, upon compliance with the procedure herein set forth, may expel members and terminate their membership contract for acts injurious to the Association or grievous misconduct on the part of the member. Charges setting forth the misconduct of the member must be in writing, must be signed by at least one member of the Association, and must be filed with the Secretary or with the Board of Directors of the Association. After the filing of such charges, the Board of Directors, or a committee appointed by the Board of Directors, shall investigate the charges. If the committee reports that the charges are without foundation, the action shall be dropped. If the committee reports and the Board determines that the charges have sufficient merit to warrant consideration, the member so charged shall be notified in writing by registered mail, return receipt requested, addressed to said member at his resident address, and mailed in time to assure that the same shall be delivered to said member and received by said member at least ten (10) days before any hearing. Such notice shall fully advise member of the nature of the charges filed against him and the date and place of the hearing, and such member shall be given an opportunity to appear before the Board of Directors at such hearing and defend himself. In the event the member so charged and notified shall fail to appear and defend himself at such hearing, the Board of Directors, as hereinafter provided, may act upon such charges. In the event the member shall appear and defend himself, the Board of Directors shall act upon such charges and no continuance of such hearing may be had without the consent in writing of the member-charged, and the date for resuming such hearing, time and place being set at such time. At such hearing all members of the Board of Directors present and attending said hearing may vote by written ballot or raised hand, and in the event the member charged appears and defends himself, he shall have the right and election of determining the manner of such voting. All such votes and all evidence pertaining to such charges shall be taken and presented to the Board of Directors only in the presence of the member charged. No member shall be expelled without at least a two-thirds vote of the Board of Directors present and voting for such expulsion, and no hearing shall be held without at least a majority of the Board of Directors being present and attending such hearing.”

      . “Article IV, Section 3. Special Meetings. Special meetings of the members of the Association may be called at any time by order of the President, by order of a majority vote of the Board of Directors, or upon the written request of any twenty-five (25) members of the Association. Such special meeting shall be held in the Oity of San Antonio, Bexar County, Texas, or such other place in the State of Texas as the Board of Directors may from time to time designate. Such order or request shall state the time, place, object and/or purpose of the meeting, and the written notice of such meeting must he published in the ofiicial publication of the organization or in writing and mailed to the members of the Association at least five (5) days before the date of the meeting. At such meeting no matter of business may be taken up or considered except those matters stated in the order, request, and notice. All special meetings shall be open to all members of the Association.”


author: McNEILL, Justice.

text:
    M. C. JORDAN et al., Appellants, v. Dwayne V. OVERSTREET, County Attorney, Appellee.
    No. 6489.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1961.
    Rehearing Denied Nov. 22, 1961.

      Musslewhite & Musslewhite, Lufkin, Graves, Dougherty, Gee & Hearon, Austin, for appellant.
    Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellee.
   McNEILL, Justice.

An election was ordered to be held January 7, 1961, by the County Judge of Hardin County to determine whether the Batson Independent School District and Saratoga Independent School District should be consolidated. For consolidation carried by a big majority in the Saratoga district but returns showed there was only a majority of ten votes for consolidation in the Batson district. Four resident tax paying voters of the Batson district gave notice of contest of the election in said district, which was served upon Dwayne Overstreet, County Attorney of said county, within the 30 day period and suit was also filed within such period naming only the county attorney contestee. A plea to the jurisdiction of the court was filed by con-testee, asserting that since he was not a proper party contestee and none such had been served with notice nor made contestee under Art. 9.31 of the Election Code, V.A.T.S., the court had no jurisdiction to determine the questions raised by the contest. The court in due course overruled this plea. By counter-point appellee raises the issue here. Article 9.31, in pertinent part, reads:

“In any case provided for in the preceding Section [art. 9.30], the county attorney of the county, or if there is no county attorney, the district attorney of the district, or the mayor of the city, town or village, or the officer who declared the official result of said election, or one of them, as the case may be, shall be made the contestee, and shall be served with notice and statement, and shall file his reply thereto as in the case of a contest for office; * * *.”

The principal case relied upon by appellee to sustain his position that he was not a proper party contestee is Hooker v. Foster, 117 Tex. 237, 1 S.W.2d 276. This is the landmark case on the question. There an election was held to determine whether an additional maintenance tax should be levied in the Shiro Independent School District. After the election certain residents of the district contested its result by serving- notice upon and bring'ing a proceeding against the members of the school district. The county attorney of the county was neither served with notice nor made a party contestee, and a plea to the jurisdiction of the district court was urged on account thereof. The trial court sustained this plea and dismissed the suit. The Court of Civil Appeals certified to the Supreme Court the question whether the trial court erred. That court held the trial court did err in sustaining the plea. In reaching this answer the Supreme Court reasoned that since the county attorney was not the legal advisor of the independent school district he was not legally concerned with the proceeding, and only that officer or officers peculiarly or legally concerned with the outcome of the election was a necessary party under Art. 3070 (now Art. 9.31 Election Code).

It was held in Funderburk v. Schulz, Tex.Civ.App., 293 S.W.2d 803, that the county attorney is not a proper contestee in an election contest brought by citizens of a school district attacking a bond election held therein. And this court in Hayter v. Baker, 293 S.W. 331, held he was not a proper party contestee in a suit attacking a city election. But the present is not a suit involving a single unit of the county as is one school district or city. When two school districts are sought to be consolidated, the election must be administered by the county government. Art. 2806, Vernon’s Ann.Tex.St. requires the petition for a consolidation election to be submitted to the county judge, who is required to issue the order calling the election and to issue notice of the election. This article also requires the Commissioners Court to canvass the returns and to declare the result of the election. It is, therefore, the primary duty of the county government to see that a proper election is held and its results declared. In connection with this, it is the duty of the county attorney to advise the county officials upon their action. Neither the school districts involved were proper party contestees since each school board’s “only proper concern would be with a fair determination of contests, not necessarily with upholding as a contestee the declared results of elections.” Funderburk v. Schulz, Tex.Civ.App., 293 S.W .2d 803, 807. The notice and petition here did not expressly make the canvassing body (the Commisioners Court, or one of its members) a party contestee. But since the county attorney is the legal advisor of the court and by force of the very language of Art. 9.31 he is named a contestee, the action was one, in effect, against the members of the Commissioners Court and necessarily brought their action into question. Thus, there is no real distinction whether one or more members of the court was made directly the party contestee. This view comports with the holdings in Rister v. Plowman, Tex.Civ.App., 98 S.W.2d 264, and Baker v. Webster, Tex.Civ.App., 123 S.W.2d 690. The trial court’s ruling is upheld.

Appellants’ first point asserts that the trial court should have ruled that the election had failed to carry for consolidation, because the order of the Commissioners Court declaring the result of the election held in the Batson district, and other evidence, established the proposition did not receive a majority of the valid votes cast. The returns of the election from the Batson voting place made by its officials certified that there were cast 365 votes of which 138 votes were “for” consolidation and 128 votes “against” consolidation. The Commissioners Court on January 9, 1961, canvassed these returns and its order declaring the result of the election in the Batson district stated “there were cast at said election 365 valid and legal votes of which number there were cast for consolidation 138 votes and against consolidation 128 votes.” The order then declared a majority of the qualified voters of said district voted for consolidation. Appellants attack the order of the Commissioners Court declaring this result of the election, asserting that on its face it was shown that a majority did not vote “for” consolidation and that the proposition for consolidation should be declared lost in the Batson district. It is apparent that an error was made either in the figure 365 showing the total number of votes cast or in the number for or against consolidation. The returns of the election are in evidence. The poll list which was made listing each voter’s name revealed that 265 votes were cast in the election. At the trial it was also shown that a Mrs. Walter B. Johnson voted just before the polls closed, and her name was inadvertently left off the list, thus indicating there were actually 266 votes cast. The tally list of the election officials also was in evidence and reflected 138 votes for consolidation and 128 against consolidation. Ordinarily the order declaring the result of an election by the Commissioners Court is conclusive of the number of votes cast. But it appears the order here involved so declaring is self-contradictory. The returns prepared and delivered by the election officials to the Commissioners Court, we think, clearly show that the election officials made a mistake in the total number of votes cast, and the Commissioners Court carried forward the same mistake. The present is a situation comparable to that of a judgment of a trial court. If the judgment is ambiguous, the judgment roll may be examined to relieve the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 107 S.W.2d 564, 567, 111 A.L.R. 1152. The trial court examined the “judgment roll”, the various returns of the election officials, to eliminate the ambiguity in the order of the Commissioners Court, and we think he did so properly.

The 2nd, 3rd, 4th, and 5th points urge that the trial court erred in refusing to grant appellees’ request to open the ballot box because of errors and irregularities apparent. Much stress is laid upon the fact that there were 99 “valid and legal votes” which were cast and unaccounted for. We are not persuaded this is true. The detailed records of the election officials as pointed out next above clearly reflected that 266 votes were cast. It is easily seen that an error in failing to put one voter’s name on the poll list may take place where polls are open from 7 o’clock a. m. until 7 p. m., and the election officials become weary at the close of the long day. Under such circumstances one person’s name could be omitted from the list. In connection with these points, as well as point one, appellants press upon us the case of Sewell v. Chambers, Tex.Civ.App., 209 S.W.2d 363. We have studied that case carefully but we do not believe it controls the present situation. The last paragraph of the Sewell-Chambers case on p. 366 sums up most of the errors there shown to have taken place, but in addition — we think an important addition— votes were recorded and counted as cast by four persons who had not voted at all and the election officials had counted eleven votes of eleven unknown persons. This we think is undoubtedly “some evidence” of fraud under Art. 3130, and this together with the many other irregularities justified the opening and examination of the ballots in the ballot box. While there were, undoubtedly, some irregularities in the election now involved, as will be set out hereinafter, we believe they are not of such character as to compel the action sought by appellants. Unless there is substantial evidence of wrongdoing or fraud we think the discretion of the trial court as to whether the ballot box is opened is one that should control. De La Garza v. Salinas, Tex.Civ.App., 255 S.3W.2d 396.

As a basis for the order calling the election by the county judge there was submitted to him three different sheets of paper at the top of each of which there appears identical language addressed to the County Judge of Hardin County, Texas, requesting him to call an election in the two districts for the purpose of determining whether they should be consolidated for school purposes. Each of these pages was dated November 19, 1960, and bore the signatures of different qualified voters of the Batson district, and no one page contained as many as 20 signatures. The three pages were fastened together and submitted to the County Judge as “the petition” as a basis for calling the election. Appellant’s 6th point contends that since Article 2806, V.A.T.S., provides that on “the petition” of 20 or a majority of the legally qualified voters of each district the county judge shall call such election and since no one of the pages or sheets had the requisite number of signatures, the election was improperly called. To sustain this point we would give precedence to form over substance. We decline to do this. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780; 18 Am.Jur. 244.

Appellee concedes that appellants’ 7th and 18th points are good. The 7th point reflects that two women who had become 21 years of age but held no poll tax receipt nor exemption certificates were improperly allowed to vote, and the 18th point asserts that because three other voters who failed to sign, mark, or make an “X” upon the stub attached to the ballot voted that these were illegal votes. In addition to these five, appellee concedes that two other voters, those of one Fregia and the Rev. Tarver, the votes of which the trial court excluded, should not be counted.

The 8th point asserts the trial court erred in failing to declare the votes of J. D. Daniel and wife, Nancy Daniel, void because they were shown to have been non-residents of the district at the time they voted, and the 9th point asserts that the implied finding of the court that they were residents of the district is against the great weight and preponderance of the evidence. The 10th point asserts that the voter Floyd Hooks was not a resident of the district when he voted and the 11th point claims that the implied finding of the court that he was, is against the great weight and preponderance of the evidence. Whether a person is a resident of a district or not is distinctly one of intention and of fact. McBeth v. Streib, Tex.Civ.App., 96 S.W.2d 992. Even though he may be temporarily out of the district, if his intention is to return, it is generally held that he is a qualified voter in the district. McBride v. Cantu, Tex.Civ.App., 143 S.W.2d 126, 127; Reid v. King, Tex.Civ.App., 227 S.W. 960, 962, by this court; Huff v. Duffield, Tex.Civ.App., 251 S.W. 298. The testimony with reference to the Daniels is that they had lived for years in the Batson district but about 3 months before the election they moved to Amelia in Jefferson County so that Mrs. Daniel, who was expecting a child, would be near her doctor and also since Daniel was working temporarily at High Island it would save gasoline in going to and from work by their living in Amelia. However, they own their home at Batson and left some of their furniture there. They even spent the weekends in Batson during this time. Mrs. Daniel testified that they intended to return to their home as soon as their child was born. Daniel’s testimony threw some cloud on this intent. The trial court resolved the issue in upholding their vote and in this we think he was justified. The voter Floyd Hooks was a single man and lived on what is known as the Wells place about 5 miles out of Batson in the Batson district. On Christmas Eve before the election he came to Batson to stay at a small hotel until he could get better; however, he said it was his intention not to give up the Wells place as that was still his home. The trial court upheld his vote and the evidence justifying a finding either way, we sustain the trial court’s conclusion. McBeth v. Streib, supra.

The 12th point claims that the vote of Dave Como was void because he was given incorrect instructions by Jim Dono-hoe, one of the election officials, thus causing him to vote for consolidation when his true intention was to vote against consolidation. The 13th point is like unto it — the implied finding of the trial court that Como did not vote contrary to his intention is against the weight of evidence. The 14th and 15th points deal similarly with the vote of H. D. Manning and the 16th and 17th points deal similarly with the vote of Paul Stark. The ballot was printed with the words “For Consolidation” above and the words, “Against Consolidation” below. These three voters testified that when they asked Mr. Donohoe how to vote he stated that if they wanted to vote against consolidation they should strike out the bottom line. They claimed that on account of this incorrect instruction they voted for consolidation instead of against it as they intended. However, on cross examination their testimony contradicted their earlier statements. Mr. Donohoe, a man of 80 years, denied giving such incorrect instructions. While on the witness stand he became confused under questioning and at one time did state that he advised them as they contended. However, the trial court heard the testimony, observed the witnesses and we are not inclined to hold that he erred in refusing to exclude the votes of Como, Manning and Stark. The assistance given these voters was not improper. Carter v. White, Tex.Civ.App., 161 S.W.2d 525; McJimsey v. Yates, Tex.Civ.App., 324 S.W.2d 438.

The 19th point urges that the court -committed error in failing to exclude the vote of Mrs. Eva Durham because the ■evidence established as a matter of law that she cast her ballot outside of the voting place in violation of the Election Code. 'Testimony shows that on election day Mrs. Durham was ill and she rode in a car to the back door of the schoolhouse which was the ■entrance to the voting place where she cast Tier ballot. There was no one in the automobile at the time she voted. Art. 8.28 of the Election Code, permitting this method of voting for ill persons was substantially •complied with.

The 20th point asserts that the ■election was void because neither the peti-tion for election, the order calling the election, and notice of time and place of election contained specific metes and bounds description of the Batson School District, in view of the peculiar circumstances of this case. It has been held that no such metes and bounds description is necessary to be given in the instruments mentioned. Baker v. Brown, Tex.Civ.App., 165 S.W.2d 522. But appellants say since there existed confusion as to the boundaries of the district the proceedings should have set forth the boundaries. There was no showing that the confusion kept any qualified voters away from the polls. The point is overruled.

The 21st and last point asserts that the votes of eight persons voting were void because the evidence established as a matter of law that these voters lived outside the Batson School District as it was legally constituted on the date of the election. The original Batson Common School District was formed in 1906 and included a small area lying in and around the town of Batson. The 35th Legislature, at its 4th called session, passed an act creating and establishing the Batson Independent School District which included the area of the original district as well as considerable additional territory. Ch. 3, Special Laws, 35th Leg. This Act described the district by metes and bounds. However, it was shown at the trial that the field notes did not close. The district as constituted appears to be roughly in the shape of a boot, the toe of which points east and the top a little west of north. At the top of the foot or instep the Joel Hawley Survey rests. The field notes call for the boundary to run “thence in a southeasterly direction with the eastern line of the said Hawley League to the southeast corner of the said league.” From that point the next call jumps to “thence North with the East line of the G. Garcia League to its Northeast corner.” The Garcia League lies adjacent to the Hawley League and the easterly line of the Garcia is co-incident with the westerly line of the Hawley. It thus appears that no call exists between the S.E. corner of the Hawley and its S.W. corner, although it was apparently the intent of the Legislature that this call be in the field notes. On account of this hiatus appellants contend that the eight voters mentioned in the 21st point who lived outside of the early boundary of the school district but within the northeast section of the district as described in the 1918 Act of the Legislature, were improperly allowed to vote, and that having voted for the consolidation, the court should have held the proposition lost. However, the regular session of the 39th Legislature passed an Act exchanging certain territories between the Batson Independent School District and the Sour Lake Independent School District. A certain area was taken out of the first district and placed in the second, and another area was taken out of the second district and placed in the first. Sec. 1 of this Act excluded all of the foot of the boot area except most of the heel, and in doing so made the most easterly corner of the Garcia League the most eastern point in the revised Batson district, thus eliminating the hiatus in the field notes of the 1918 Act. The Legislature at the same session also passed H.B. No. 445 which amended the original 1918 Act that created the Batson district, redefining the powers and organization of the Board of Trustee and providing how they should be elected from time to time. This amendment and the other Act exchanging territories between the Sour Lake and Bat-son school districts were approved by the governor on the same date, March 6, 1925. We hold that by the passage of these Acts in 1925 the Legislature cured the error in the original field notes of the 1918 Act and the eight voters were properly allowed to vote in the election.

Appellants’ counsel have ably and earnestly presented the various points in their brief. Hence the detailed discussion above. The question, however, whether the ballot box should be opened in this instance is one determined in the trial court’s discretion. So viewing the matter, we summarize the valid votes for and against consolidation. Deducting the seven votes illegally cast from the total of 138 for consolidation leaves 131 votes for, and the votes against consolidation being 128, we hold the proposition for consolidation carried by three votes and affirm the trial court’s judgment.

Affirmed.