text:
    FERRILL v. BRYSON.
    No. 1042.
    Court of Civil Appeals of Texas. Waco.
    March 26, 1931.
    Rehearing Denied April 23, 1931.
    See, also, 25 S.W.(2d) 1001.
    Gib Callaway, of Brownwood, for appellant.
    G. E. Smith, of Comanche, for appellee.
   ALEXANDER, J.

This was a suit in trespass to try title brought by C. V. Bryson against W. C. Fer-rill. It is a second appeal of the same case. 25 S.W.(2d) 1001. Ferrill owned the northwest quarter of section 26 E. T. R. Co. land in Comanche county, and Bryson owned the remainder of the section. The dispute was over the east boundary line of the northwest quarter section. The case was submitted to the jury on special issues, and, based on the answers thereto, the court entered judgment for the plaintiff. The defendant appeals.

The evidence shows that in 1923 the appellant erected a fence on what he claims to be the east line of his land. The appellee claimed that the fence as built by appellant was placed about 221 varas east of where the same should have been placed, and that by reason thereof the appellant has taken possession of a part of appellee’s land. The patent to the northwest quarter section was issued in 1898, and the patent to the remain der of the section was issued in 1890. There appears to be a conflict in, or overlapping of, the two surveys. An old fence was erected some time prior to the year 1891 running at an angle across the north half of section 26 and intersecting a fence near the north line of the section. It was located somewhere near the dividing line between the northwest quarter and the northeast quarter of said section. However, this fence did not run in a straight line and did not run at a right angle to the north line of the section. The appellant alleged that he and appellee, as the owners of the respective tracts of land, recognized that the old fence was not on the true line between the two tracts, and that there was a dispute, between the owners as to the location of the true line, and that in 1923 he and appellee mutually agreed on the true line between the two tracts of land; that the new line as located by them should govern them in the future as to the ownership of the land; and that by mutual agreement he erected a fence on the new line as agreed to by the parties, and that both parties had since recognized the new fence as being on the true line between their respective tracts. The new fence as erected included the land in dispute as a part of the northwest quarter section.

At the conclusion of the evidence, the appellant requested the court to submit to the jury special issues as to (a) whether in 1923 there was a dispute between the parties as to the true location of the east line of the northwest quarter section, (b) whether the parties agreed to build a fence from the “Holman corner” on the north line of the section straight south, which fence should be the true line between the two tracts of land, and (c) whether the fence was so erected. The court refused to submit these issues and the appellant assigns error.

It is the contention of the appellee that there was no evidence to justify the submission of these issues. The appellee, Bryson, testified that he had had the land in question under fence long enough to hold the same by limitation. He denied that there was any dispute as to the true location of the line and denied making the agreement to erect the fence at the place where it was afterwards built. On the other hand, Ferrill testified that there was a dispute as to the true location of the line, and that he and Bryson mutually agreed to erect a fence through the land in question beginning at the “Holman corner” on the north and running due south. He further testified that Bryson furnished a part of the post for the erection of the fence, and that he (Ferrill) afterwards constructed the fence according to the agreement.

Where the true line between the parties is in doubt, and there is a dispute as to its true location, the parties may, by oral agreement, locate the line on what they consider to be the true line, and such agreement will be binding on the parties, notwithstanding it may later be ascertained that the line was not established on its true location. Cooper v. Austin, 58 Tex. 494; Levy v. Maddox, 81 Tex. 210, 16 S. W. 877; Lecomte v. Toudouze, 82 Tex. 208, 17 S. W. 10-17, 27 Am. St. Rep. 870; McKeon v. Roan (Tex. Civ. App.) 106 S. W. 404. However, in order for such an oral agreement to be valid, there must have been doubt, and a dispute between the parties as to the true location of the line. Harn v. Smith, 79 Tex. 310, 15 S. W. 240, 23 Am. St. Rep. 340; Cook’s Hereford Cattle Co. v. Barnhart (Tex. Civ. App.) 147 S. W. 662; Ware v. Perkins (Tex. Civ. App.) 178 S.W. 846.

(3, 4] In this case there was doubt as to the true line. The patent to the northwest ■quarter ealled for the north line to run 1,171 varas. The patent to the northeast quarter section ealled for the north line to run 1,091 varas, making the north line 2,262 varas in length. The line was actually only 2.041 varas in length. Bryson was claiming that the line should be somewhere west of the old fence, and, in all events, that he had title by limitation to the old fence. Bryson’s right to hold the land to the old fence by limitation had never been litigated. It depended on parole testimony and was therefore an uncertainty. Ferrill was claiming that his line should begin at the “Holman corner” and run due south. The “Holman corner” was east of the old fence. Ferrill’s testimony that the parties mutually agreed to locate the line where the new fence was afterwards erected was sufficient to raise a question of fact for the jury. The trial court should have submitted to the jury the special issues requested by the appellant and above referred to.

The other errors complained of will not likely arise on another trial. The judgment of the trial court is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: ALEXANDER, J.

license: Public Domain

text:
    BOONE et ux. v. CITY OF STEPHENVILLE et al.
    No. 1046.
    Court of Civil Appeals of Texas. Waco.
    April 2, 1931.
    J. A. Johnson, of Stephenville, for appellants.
    Chandler & Keith, of Stephenville, for ap-pellees.
   ALEXANDER, J.

This was a suit brought by the city of Ste-phenville and Dr. J. B. Gordon against W. G. Boone and wife to enjoin the defendants from closing the west end of an alley that runs from east to west through block 96 of the city of Stephenville.' The alley connects Graham street on the east with Belknap street on the west. The defendants own a lot on the north side of the alley at the west end thereof, and Dr. J. B. Gordon owns a lot on the south of the alley at 'the west end thereof. The city claimed that the alley had been dedicated by the former owners thereof as a public alley and that the city had accepted the dedication and worked the street, and further claimed that the alley ¡had been continually used as a public thoroughfare for more than forty years, and that by reason thereof the city had a right by prescription to have the alley kept open. The plaintiff Gordon.claimed that at the time he purchased his property on the south of the alley, more than twenty years before this suit was filed, said alley was a public thoroughfare and that he had bought his property in recognition thereof and that he had used the alley continually since that time and that he had a right to have it maintained as a public thoroughfare. The defendants’ deeds included a greater portion of the alley in the field notes to their property. They constructed a curb across the west end of the alley and have so obstructed the same that it cannot be used by the public. The case was tried before a jury, and at the conclusion of the evidence, the court instructed the jury to return a verdict for the plaintiffs, and on such verdict entered judgment for the plaintiffs compelling and requiring the defendants to remove all obstructions from the alley and perpetually enjoining them from in any manner obstructing the alley and passageway. The defendants appeal.

The appellant complains of the action of the court in giving an instructed verdict for the plaintiff. In determining whether or not the court properly instructed a verdict for the plaintiff, the rule is that the evidence must be considered most favorably to the defendants. A trial court is not authorized to direct a verdict for the plaintiff unless the evidence is of such a character that as a matter of law no other verdict could be rendered.

We have examined the evidence very carefully and do not find in the record sufficient evidence on which to base an instructed verdict showing either a dedication by the owner or an acceptance by the city. There is-no evidence that either Boone or any prior ■owner of the property did any act or made any declaration showing as a matter of law an intention to dedicate the property for public use. In order to constitute a dedication of land for the purpose of a highway, the intent of the owner to so dedicate the same must be shown by his acts and declarations, and such acts and declarations must show a clear intent to dedicate the land absolutely and irrevocably to the use of the public and that the public has acted upon the faith of such acts and declarations. Ladies’ Benev. Soc. v. Magnolia Cemetery Co. (Tex. Civ. App.) 268 S. W. 198, at page 211; Evans v. Scott, 37 Tex. Civ. App. 378, 83 S. W. 874, 877. There was no resolution by the city council accepting or recognizing the alley as a public alley. The city had never worked the alley nor otherwise assumed control or jurisdiction over it. There was some evidence that the city had a map on which the alley was shown, but such map is not shown in the record.

Therefore, if appellees are entitled to use the property as a public alley, it must he on the sole ground that they have acquired such right by prescription. A right to use private property as a public thoroughfare may be acquired by prescription, but in order to do so it is necessary to show that an uninterrupted user of the way has been made by the public under an adverse claim of right for the statutory period of limitation. The use by the public must be with the actual or implied knowledge of the owner, adversely, under claim or color of right, and not merely by the owner’s permission. Ladies’ Benev. Soc. v. Magnolia Cemetery Co. (Tex. Com. App.) 288 S. W. 812, at page 815; 29 C. J. 373. The right to an easement by prescription rests upon the presumption that the owner of the land has granted the easement and that the grant has been lost. City of Austin v. Hall, 98 Tex. 591, 57 S. W. 563; Porter v. Johnson (Tex. Civ. App.) 151 S. W. 599, at page 601; Phillips v. Texas & P. Railway Co. (Tex. Com. App.) 296 S. W. 877, 880.

The evidence in this case shows that the alley in question has been open and used by the public for approximately forty years. It was at one time fenced on both sides. At the time the alley was first opened, Mrs. Geren owned the lot now owned by appellants, and a man by the name of Shappard owned the lot now owned by Dr. Gordon. The lots run lengthwise with the alley. Shappard began negotiations with Mrs. Geren to have the alley opened so that he could get into the back of his lot. Mrs. Geren testified that she told Shappard: “I wouldn’t give no alley there at all; if it is going to be a public alley, I don’t want it. * * * Mr. Shappard said: ‘You can close it up at any time you want to; the City wont have a thing in the world to do with it; you can close it up at any time in the world that you see fit.’ * * * I never dedicated it to the City in any way. People passed through there just like any other opening, you know; they just passed in and out over that place. We always love to have some thing other people could use as much as they wanted to; if they wanted to use the whole lot, it was agreeable with us, our neighbors and friends ¡here. I .never- intended- for the public to have that property; they couldn’t have it because it would ruin my land. I have always claimed it, as my home place; I always told them that the alley couldn’t go to the City.”

The evidence of Mrs. -Geren directly rebuts the presumption that there was ever such -a grant. Moreover, in order for the long-continued use of a roadway by the public to raise the presumption that there was such grant, it must not only be continuous and uninterrupted for the full ten years, hut the use by the public must be adverse under a claim of right. The adverse claim is the very foundation of the right. Use, with the permission of the owner, will never ripen into prescription. ladies’ Benev. Soc. v. Magnolia Cemetery Co. (Tex. Com. App.) 288 S, W. 812, at page 815; Id. (Tex. Civ. App.) 268 S. W. 198, 212; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874, at page 876; Phillips v. Texas & P. Railway Co. (Tex. Com. App.) 296 S. W. 877, 880; 29 C. J. 373-378. This adverse claim of right may be proved by circumstantial evidence, sufficient to sustain the conclusion, but it must nevertheless be proved in some way by legal evidence, else the alleged prescriptive right fails, Ladies’ Benev. Soc. v. Magnolia Cemetery Co., supra, and the burden of proof is on the claimant to prove such ad verse claim, Texas West. Ry. Co. v. Wilson, 83 Tex. 153, 18 S. W. 325; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874, 875; 29 C. J. 391. The adverse use of the property and the claim ¡of right thereto may be inferred from the circumstances of the manner of the use thereof, Hall v. Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Texas & P. Ry. Co. v. Gaines (Tex. Civ. App.) 27 S. W. 266, but it is generally a question of fact to be ascertained by the jury, Texas West. Railway Co. v. Wilson, 83 Tex. 153, 18 S. W. 325; Ladies’ Benev. Soc. v. Magnolia Cemetery Co. (Tex. Com. App.) 288 S. W. 812; 9 R. C. L. 782, 2 Tex. Jur. 114; Hill v. Crosby, 2 Pick. (Mass.) 466, 13 Am. Dec. 448; Crosier v. Brown, 66 W. Va. 273, 66 S. E. 326, 25 L. R. A. (N. S.) 174. There was no positive evidence that the use of the property by the public was adverse under a claim of right. The only evidence of such adverse claim was the inference to be drawn by the jury from the circumstances of the use of the property. Since the disposition of the case was dependent on the inference to be drawn from the circumstances in evidence showing the adverse use of the property, the jury, and not the court, should have been permitted,,to-draw the inference. Stooksbury v. Swan, 85 Tex. 563, 571, 573, 22 S. W. 963, 966; Early-Foster Co. v. W. F. Klump & Co. (Tex. Civ. App.) 229 S. W. 1015, 1023.

As to the adverse claim' of Dr. Gordon, there was evidence that at the time the appellant Boone bought his lot in 1928, Dr. Gordon told him and others that the alley was not a public alley and that he was not “fighting’’ the closing of the alley. In order for adverse claim to ripen into prescription, the claim must be continuous and uninterrupted. A single act of acknowledgment by the claimant of the owner’s title is fatal to the right. Tex. West. Railway Co. v. Wilson, 83 Tex. 153, 18 S. W. 325, at page 326. It has been held that even an act of acknowledgment of the superior title after the running of the period of limitation goes to show that the use has not been adverse. 91 R. C. L. 782.

The court should not have given the instructed verdict for appellees, but should have submitted the facts to the jury. The judgment of- the trial court is reversed, and the cause remanded for a new trial.


author: PLY, C. J.

text:
    KRETZSCHMAR v. CHRISTENSEN.
    No. 8587.
    Court of Civil Appeals of Texas. San Antonio.
    April 1, 1931.
    Rehearing Denied April 22, 1931.

      Kleberg & Eekhardt and T. S. Cyrus, all of Corpus Christi, for appellant.
    Sidney P. Chandler, of Corpus Christi, for appellee.
   PLY, C. J.

Appellee sued appellant to recover the sum of $675 on a contract to close the flow of salt water into a well of fresh water, or, in the alternative, on a quantum meruit for labor performed, and also to foreclose a mechanic’s lien on certain real estate on which the well is located. The cause was tried without a jury, and judgment was rendered in favor of appellee for $525.

It was the contention of appellant that ap-pellee agreed to work on the well and guaranteed that he would shut off the salt or brackish water and secure “sweet” water for $300. Rojas, the agent and son-in-law of appellant swore to those facts, and he was corroborated by his wife. Appellee denied that he gave any guaranty as to the quality of the water or agreed to accept $300 for his labor. He swore that Rojas agreed to pay him $25 a day. He worked with assistants on the well'for 24 days. Appellee had no knowledge of any instructions to Rojas as to obtaining a guaranty as to the quality of the water, or that he was limited to pay only $300. There is testimony which would sustain a conclusion that Rojas was a general and not a special agent to contract for labor on the well.

The evidence indicates that Rojas was in charge of the property of appellant in Nueces county and he lived in another county. He was held out as the agent of appellant. Appellee contracted with Rojas as the. agent of appellant, without having notice of special authority alone being conferred upon him in connection with the well. The secret instructions given by appellant to his agent cannot be used as a shield to assist appellant in resisting payment of debts.

It was not error to allow proof of •the admission of appellant in his answer that Rojas was authorized to contract for labor on the well in the sum of $300, and appellee could use that admission to prove agency without admitting the truth of allegations as to guaranty and as to the sum to be paid for the well. However, if it be conceded that the whole was to be taken as true, it did not bind appellee without proof that he knew of the instructions to Rojas when he made the contract. Appellee denied that knowledge of the limitation of power to contract imposed by the father-in-law upon his son-in-law and agent.

This ease involves nothing but questions of fact, based upon the credibility of the contractor and the son-in-law, that credibility to be determined in this instance by the trial judge, in the absence of a trial by jury. The propositions are overruled, and the judgment should be affirmed.

Appellant failed to copy his assignments of error into his brief, and has sought to correct that error by attempting to file a supplemental brief after this cause had been submitted. We do not think such practice permissible or to be encouraged. However, the propositions have been considered ns though based on assignments of error duly copied into the brief, and have been overruled.

The judgment is affirmed.


text:
    MANSUR v. MANSUR.
    No. 8594.
    Court of Civil Appeals of Texas. San Antonio.
    April 8, 1931.
    See, also, 21 S.W.(2d) 38.
    Boyles, Brown & Scott and Prank G. Dyer, all of Houston, for appellant.
    Seabury, George & Taylor, of Brownsville, for appellee.
   PLY, C. J.

Appellant filed a suit for divorce against appellee, but afterwards took a nonsuit, and her cause was dismissed. Appellee filed an answer to appellant’s petition and also filed a cross-action against appellant for a divorce, on the grounds of incompatibility of temper and disposition which rendered their living together insupportable; that appellant had in 1925 filed a complaint against him for. failure to contribute to the support of herself and the children, of whom there were three, at that time ranging from about four to twelve years of age. Since that time another child has been born. The third ground was that appellant falsely charged that appellee and his brother were concealing the property of appellee so as to prevent her from obtaining any part of it; that appellant had compelled appellee to give a note for $3,000, signed :by two sureties, before she would, return to and live with them, and had collected $1,000 of the money from the sureties; tfrat appellant had influenced the children so that they did not love him, and that appellant had, pending this suit, filed a complaint that appellee had failed to pay an allowance made by the district court; of $100 per month, with the intent to procure his punishment for contempt of court. It' is admitted by appellee that; neither of the grounds set out in the petition, standing alone, formed a sufficient basis for a decree of divorce, but it is claimed that, when considered in connection, one with the other, they created a line of conduct and system of action that rendered their living together insupportable, and formed a sufficient ground for divorce under the statute.

Where a systematic course of conduct extending through the years is relied upon by a spouse to justify a divorce on the ground of cruelty, which renders the marriage yoke insupportable, the acts of the marital complaining party must be such as not to have added fuel to the fire and to have created the circumstances which led to the conduct of the other. The criminations and recriminations between the parties had extended through many years. If the wife was .guilty of acts of an aggravating and irritating character, the evidence does not disclose a husband faithful and kind. If the wife forsook the home ⅛ go back to her relatives, her abandonment of the home seems to follow the departure of her husband from the home, and a failure to provide sufficient maintenance for her and the children. If the evidence is to be credited, he, who was the creator of her condition, left the wife when she went down into the valley of the shadow of death to give birth to four children at times through the years. At this most critical period in a woman’s life, when he should have been with her to protect and comfort her, he was gone and only returned when she had borne him a child and had regained her strength and ability to again add to his desire and pleasure. Then would follow weeks of absence upon the part of appellee when the time neared for the culmination of an event caused by him. Inadequate funds to support the wife and children and forced trips to the home of her girlhood followed. If under all these circumstances the wife at times forsook the sweet conversation and humble demeanor of a saint it cannot be a marvel. Several of the incidents relied upon by appellee to Constitute the chain which formed a condition Insupportable to appellee occurred years before they were alleged in the cross-action, and some of them before the course of life began which, like the Irish conductor’s “jerkwater” train, could be described as “off again, on again, gone again.” He willingly gave the note to appellant to convince her he intended to • support her and the children, until at some time when the wanderlust again moved him to depart. No charge of inconstancy or impurity was brought against the wife. It could not be expected that children would be inordinately fond of a father who often abandoned them and did not make adequate provision for their maintenance and support. The evidence failed to disclose any effort on the part -of the appellant to alienate the affections of the children from the wandering father. If, as asserted by appellee, appellant hurled a bottle at him, he in turn replied with a dinner plate. If she has sinned, he is in no position to cast the stones of condemnation and destruction at her.

We hear men and women and complacent judges, urging severing of the marriage ties and destruction of homes because couples are not as happy as they might be, but there is no law, human or divine, outside of communistic Russia, that sanctions divorces on such grounds. The day of companionate marriages, which is a mild modernistic name for a baser temporary union of the sexes, has not yet arrived in America.

As hereinbefore stated, most of the causes assigned for a divorce were condoned, a child being begotten and born after most of the links had been destroyed by reconciliation and the chain of studied insults and injuries claimed by appellee so battered and dismantled as to amount to' nothing upon •which to base the severing of the marriage ties. The record fails to.reveal any affection for fhe children upon the part of appel-lee, and it cannot be expected that the children would have any affection for him, but he should not be allowed to evade the duty devolved upon him of contributing to the support of the children and their mother.

The judgment is reversed, and judgment is here rendered that the divorce be denied and appellee pay all costs of suit.


author: FLY, C. J.

text:
    BUSTOS v. LOPEZ.
    No. 8583.
    Court of Civil Appeals of Texas. San Antonio.
    March 25, 1931.
    Rehearing Denied April 22, 1931.
    T. H. Ridgeway, of San Antonio, for plaintiff in error.
    G. Woodson Morris and Harry B. Berry, both of San Antonio, for defendant in error.
   FLY, C. J.

This is an action on a claim bond given by plaintiff in error for a certain automobile which had been levied on under an execution issued under a certain judgment obtained by defendant in error against Joe Bustos. Plaintiff in error claimed the automobile by virtue of a purchase from the father of defendant in error, Francisco Lopez. On a trial of the right of property, defendant in error recovered the sum of $338, as the value of the automobile and interest.

It seems that Francisco Lopez instituted a suit against Joe Bustos or Jose Lopez, Jr., for a Chevrolet car and obtained judgment for the car. Afterwards the car was seized under a writ issued in the original suit. Jose Bus-tos, Sr., filed a claim to the car. This suit should have been confined to that claim, but it drifted into a contest between Jubento Lopez and his son Francisco Lopez and the elder Bustos and the two Lopezes as to the ownership of the car.

There was crimination and recrimination between fathers and sons and between the two Lopezes and charges of lying and forgery. Each of the fathers claimed the car. Out of the tangle of testimony the court rendered a judgment on the claim bond given by the elder Bustos. He was to pay a certain sum, or, in the alternative, might return the car. There was testimony to sustain the judgment, and it was rendered, and this court is in no position to pass upon the jumbled mass of contradictions and absurd claims in the testimony.

There is no merit in this appeal, and the judgment is affirmed.


text:
    WELDER v. FIRST STATE BANK OF SKIDMORE.
    No. 8570.
    Court of Civil Appeals of Texas. San Antonio.
    March 11, 1931.
    Rehearing Denied April 15, 1931.
    L. D. Stroud, of Beeville, for plaintiff in error.
    Charles Troy, of Beeville, for defendant in error.
   FLY, C. J.

This writ of error was prosecuted from a judgment for $692.16, and a foreclosure of a chattel mortgage on twenty-five cows and fifteen calves.

The only assignment of error assails the judgment on the ground of a want of jurisdiction in the county court to render a judgment under the allegations of the petition, in that the value of the cattle on which the mortgage was given was not alleged. It is contended that a failure to give the value of the cattle was a failure to allege such facts as would give a court of limited jurisdiction power and authority to render a judgment.

There is nothing in the record that tends to show that the cattle had a less value than $1,000, and if there be a want of jurisdiction it must rest on the proposition that a failure to allege the value ,of the cattle was fundamental error and rendered any judgment rendered by virtue of such pleadings null and void. The decisions of this court, as jvell as other appellate courts of the state, hold that when a debt, of which the county court has jurisdiction, is secured by a chattel mortgage, the jurisdiction is fixed by the value of the property described in the mortgage. The ruling is uniform and unbroken. Richardson v. Hethcock (Tex. Civ. App.) 173 S. W. 1006; Hodgkinson v. Hartwell (Tex. Civ. App.) 226 S. W. 457; Marshall v. Stowers (Tex. Civ. App.) 167 S. W. 230; Lunsford v. Pearce (Tex. Civ. App.) 19 S.W.(2d) 71.

We will not dismiss this cause, as prayed for by appellant, as it is more than probable that he owes the debt, but will give the ap-pellee an opportunity to amend so as to fix jurisdiction and collect his debt

The judgment is reversed, and the cause remanded.


author: GREENWOOD, J.

text:
    CAULK v. ANDERSON et al.
    No. 5222.
    Supreme Court of Texas.
    April 1, 1931.
    E. 0. Davis and- Emmett B. Cocke, both of San Antonio, and T. M. Pierce, of St. Louis, Mo., for plaintiff in error.
    Denman, Eranklin & Denman, of San Antonio, for defendants in error.
   GREENWOOD, J.

Plaintiff in error, John R. Caulk, brought this suit to recover of defendants in error, T. D. Anderson, Thomas H. Eranklin, Erank G. Huntress, and M. O. Judson, as executors of the will of Geo. W- Brackenridge, deceased, a balance of $10,000, alleged to be the reasonable value of surgical and medical services rendered by plaintiff in error to said decedent. Plaintiff in error pleaded that Geo. W. Brackenridge was a highly successful business man of advanced age, owning an estate worth more than $1,000,000; that the services rendered by plaintiff in error involved his relief from great suffering and the prolongation of his life; and that the performance of such services required the highest professional skill based on long experience.

Besides demurrers and limitations, defendants in error answered with a general denial and a special plea of payment by Geo. W. Brackenridge of $5,000 in full satisfaction of any demand of plaintiff in error, and that, if said sum was not so received, then defendants in error were entitled to recover of plaintiff in error $4,000 because his services were not reasonably worth more than $1,000.

The jury found a special verdict to the effect that $10,000 was reasonable compensation for the services of plaintiff in error, and that the $5,000 was not paid or accepted in full settlement. ' Judgment was rendered in favor of plaintiff in error for a balance of principal and interest amounting to $7,279.-17, which was reversed by the honorable Court of Civil Appeals. 5 S.W.(2d) 816.

The first ground assigned by the Court of Civil Appeals for ordering a reversal of the trial court’s judgment was the absence of evidence that defendants in error were trustees and executors of the will of Geo. W. Brackenridge, deceased, at the date of the trial. The amended origina] petition, on which the case was tried, averred that Geo. W. Brackenridge died December 28,1920, leaving a lawful will, which was afterwards admitted to probate by the county court of Bex-ar county, Tex., and in which defendants in error were appointed independent executors and trustees of said will; and that the county court designated defendants in error as such trustees and executors. The prayer of the petition Vas for judgment for the amount of the claim sued on against defendants in error in their capacities as executors. The facts set up in the petition showed no liability to plaintiff in error save from the estate of Geo. W. Brackenridge, deceased.

The answer on which the case was tried is signed by the attorneys for “defendants Thomas H. Franklin, et al., independent executors and trustees of'the estate of Geo. W. Brackenridge, deceased.” Among other^ facts, the executors and trustees specially alleged in their answer that plaintiff in error held' $5,000 paid him by Geo. W. Brackenridge with knowledge that the estate considered that said sum was paid in full settlement of plaintiff in error’s claim, and that plaintiff in error should not be allowed to maintain an action for any further sum without refunding the $5,000 “to the said executors and trustees.” Defendants in error, after alleging that $1,000 was reasonable compensation for all services rendered Geo. W. Bracken-ridge, by plaintiff in error, avefred that plaintiff in error ‘‘has become bound and indebted unto them and legally promised to pay to them the said sum of $4,000 with legal interest,” and they pray for the recovery from plaintiff in error of $4,000 and interest in their capacities as executors and trustees.

It thus appears that plaintiff in error and defendants in error united in pleading that at the date of the trial the defendants in error were the duly appointed and acting trustees and executors of the probated will of Geo. W. Braelcenridge, deceased. The Court of Civil Appeals should not have reversed a judgment for failure to prove a fact admitted by all parties. We have already declared at the present term that the decisions of the Supreme Court “are conclusive that there is no need to prove a fact admitted in pleadings of all parties.” Lafield v. Maryland Casualty Co. (Tex. Sup.) 33 S.W.(2d) 187, 189.

By special exceptions to certain aver-ments of the amended original petition, by objections to the introduction of testimony, and by requested instructions, defendants in error urged that the wealth of Geo. W. Brack-enridge could not be properly considered by the jury in determining the reasonable value of medical and surgical services rendered unto him. The trial court permitted plaintiff in error to plead and prove Brackenridge’s wealth, and refused to instruct the jury to disregard the proof. The Court of Civil Appeals concluded that such action of the trial court constituted reversible error. The difficult and important question for determination, on this writ of error is whether the jury may rightly consider the wealth or poverty of a patient in fixing the reasonable value of the services of his physician and surgeon.

The authorities are divided on the question. The reason for the rule denying the admission of testimony showing the patient’s financial condition is clearly stated in a leading case by the Supreme Court of Iowa, as follows: “But the value of a service depends upon the difficulty of rendering it, and the skill required in its performance, and, sometimes, upon the results accomplished, and not upon the riches or the poverty of the person for whom the service is performed.” Robinson v. Campbell, 47 Iowa, 328.

The Iowa Supreme Court supports this conclusion on page 627 of 47 Iowa, by arguing: “There is no more reason why this charge should be enhanced on account of the ability of the defendants to pay, than that the merchant should charge them more for a yard of cloth, or the druggist for filling a prescription, or a laborer for a day’s work.”

Our examination of the decisions, such as Swift v. Kelly, 63 Tex. Civ. App. 270, 133 S. W. 901, 903; Morrissett, Exec., v. Wood, 123 Ala. 391, 26 So. 307, 82 Am. St. Rep. 127; Cotnam v. Wisdom, 83 Ark. 601, 104 S. W. 164, 12 L. R. A. (N. S.) 1093, 119 Am. St. Rep. 157, 13 Ann. Cas. 25; Morrell v. Lawrence, 203 Mo. 363, 101 S. W. 571, 574, 575, 120 Am. St. Rep. 660, 11 Ann. Cas. 650, discloses no other reason for the rule excluding this sort of testimony.

We cannot accept the contention that this question can be rightly determined by regarding the physician’s and surgeon’s professignal services as involving no elements differing from a merchant selling a yard of cloth or a laborer digging a ditch. Such a view disregards the essential purpose of the employment of the physician or surgeon, which is to relieve the pain, restore the health, avert the death, and prolong the life of a human being. Since a cardinal object of the employment is to prolong the life and restore the health of a human being, any evidence bearing on the pecuniary value of such life and health cannot be logically ignored in the search for the truth as to reasonable compensation for the services rendered under the employment. Even the Iowa Supreme Court in the decision referred to above intimates that results accomplished cannot be always ignored in arriving at reasonable compensation for the physician or surgeon.

The true principle which must govern our decision underlies the settled rule in this state in negligence cases that, in ascertaining pecuniary loss in cases of death from personal injuries,' or in ascertaining pecuniary loss from permanent personal injury, the jury may consider, not only the age and occupation and the habits and health of the deceased, or of the injured party, but the amount and value of his property and his earning capacity. Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 304, 305; Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 160, 81 S. W. 282, 1 L. R. A. (N. S.) 198: Gulf C. & S. F. Ry. Co. v. Younger, 90 Tex. 392, 38 S. W. 1121; Chicago, R. I. & G. Ry. Co. v. Trippett, 50 Tex. Civ. App. 279, 111 S. W. 761-763.

In pointing out the testimony which ought to be offered to enable a jury to correctly determine the pecuniary loss of parents from the death of a son, the Supreme Court said:

“This testimony would include the circumstances of the deceased; his occupation, age, health, habits of industry, sobriety and economy, his skill and capacity for business, the amount of his property, his annual earnings, and the probable duration of life. Pierce on Railroads, 396; 2 Thomp. on Neg., 1290, both citing numerous authorities in notes.
“In the case now before the .court, though there was testimony showing that the deceased had at one time contributed some property to the plaintiffs, and had at some time previously to his death thus contributed two-thirds of his wages yet the plaintiffs did not show his pecuniary circumstances, and what his wages had been or. then were, though it was evident that this testimony was easily accessible.
“Without such evidence the verdict of the jury could have been but little more than a merely speculative one, and the court had no standard by which to determine its correctness.” Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 304, 305.

' In the case of Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 160, 81 S. W. 282, 283, 1 L. R. A. (N. S.) 198, the rule admitting testimony to show one’s financial circumstances in death cases is held applicable to the ordinary action for permanent personal injuries, in the opinion it -is said: “In eases of the former class the beneficiaries are not entitled to recover all that the deceased might have earned, had he lived, but only so much thereof as they would probably have received, whereas, in cases of the latter class, the plaintiff is entitled to recover for all that he has probably been deprived of earning by the infliction of the injury.”

Had the patient Brackenridge suffered permanent injury or lost his life as the proximate result of negligence in the performance of plaintiff in error’s services as physician or surgeon, no one could question that he, or a dependent relative, might have proven his wealth and business capacity, under the established law in Texas, in an action to recover the damages for which plaintiff in error would have been liable. Such testimony would be admissible because it would help to arrive at the pecuniary value of the patient’s health and life. Eor the same reason testimony of a patient’s wealth is admissible as a fiircumstance to determine the value of services resulting in his restoration to health and capacity to perform his customary duties, as well as the prolongation of his life.

In expressly approving a charge in a death case, authorizing a jury in assessing actual damages, to consider among other matters the amount of the decedent’s property, the Supreme Court of Kansas, through Justice Brewer, said: “That the purpose of the statute was to give to the survivors compensation for the value of the life taken away, may be conceded; and therefore all the elements which go to make that life valuable, are proper matters of consideration. ⅜ ⅜ * In the very nature of things it seems to us an exact and uniform rule for measuring the value of the life taken away to the survivors, is impossible. The elements which go to make up the value are personal to each ease. All that can well be done is, to say that the jury may take into consideration all the matters which go to make the life taken away of pecuniary value to the survivors, and, limited by the amount named in the statute, award compensation. * * * The instructions as given in this case find abundant support in the latest and best decisions, and do not present matters other than those proper for the consideration of the jury.” Kansas P. Ry. Co. v. Cutter, 19 Kan. 91, 92.

The Secretary of the Interior of the United States, in reviewing a report, soon to be available, of a Committee on Costs of Medical Care, sponsored by the greatest American foundations, states that in this country there is a “sliding scale for the costs of the same medical service, which may vary from $25 to $10,000, according to the wealth of the individual.” Hence, patient and physician must concur in regarding the patient’s ability to pay as a matter to be properly taken into consideration in fixing, by express contract, fair medical fees. That which parties quite universally regard as important or even controlling in fixing the value of a certain service by express agreement ought not to be required to be wholly ignored in a conscientious effort to arrive at the reasonable value of the same service when that value has not been agreed upon.

Adopting this view, the court in Schoenberg v. Rose (Mun. Ct. N. Y.) 145 N. Y. S. 831, 833, declared: “The deceased left a very large estate, evidence as to the value of which was received over the objection of the defendants’ counsel. ⅜ ⅞ * The financial condition of a patient is an element that it may be assumed is considered by both physician and patient when the services are contracted for, rendered, and accepted, and may also be considered by the court in determining the reasonableness of the charge; and that element should apply to a case where there-is and was no contract, but a mere fiction of the law creating one.”

The Supreme Court of Pennsylvania in following the rule in Louisiana, which is the converse of that declared in Iowa in Robinson v. Campbell, supra, stated: “What would be a proper charge for the same service to a man fully able to pay would be excessive to a man of limited means, and what would be willingly done for the indigent, ’without thought of financial reward, should be compensated for by one who can afford to pay on the scale which doctors of repute measure as the proper one. Only oh such a basis can those who devote their lives to ministering to human suffering 'in some degree be fairly paid. Succession of Levitan, 143 La. 1025, 79 So. 829, 3 A. L. R. 1646; Young Bros. v. Succession of Yon Schoeler, 151 La. 73, 91 So. 551. As was said in the Levitan Case: ‘It is a matter of common information that physicians and surgeons do not regulate their charges by any fixed standard of pecuniary value, but, to a certain extent, base them on the ability of the patient to pay, and, on that basis, more frequently than otherwise, perhaps, are but poorly compensated.’ ” Pfeiffer v. Dyer, 295 Pa. 311, 145 A. 284, 285.

The services of an attorney in capital cases most nearly correspond to those of the surgeon in capital operations to avert imminent death. In capital cases, how could it be reasonably denied that a jury might reasonably consider the client’s income and estate and the excess of the value of his services in its management over the income which might otherwise be derived from the estate, in estimating either the pecuniary benefit to accrue to the client from an acquittal or the responsibility and burden of the attorney? And, this court has said that, where the burden of the attorney is increased or diminished thereby, the jury may consider the wealth or poverty of the client in determining the reasonableness of the attorney’s fee. International & G. N. Ry. Co. v. Clark & Dyer, 81 Tex. 50, 16 S. W. 631; Hamman v. Willis, 62 Tex. 510.

The Texas doctrine here accords with the opinion of Associate Justice Grier of the Supreme Court of the United States in Lombard v. Bayard, 15 Fed. Cas. 795, No. 8469, 1 Wall. Jr. 196 (affirmed in 9 How. [50 U. S.] 530, 13 L. Ed. 245), where it is said: “Every gentleman of the bar well knows that there cannot be any one rule of charges in the nature of a horizontal tariff for all eases. Often, where the parties are poor and the matter in contest is small, counsel receive but very inadequate compensation for their exertion of body and mind; and for myself I know that for some of the most severe la-bour of my professional life I have been the least well paid. In other cases, where the parties are wealthy, and the sum in controversy large, they will receive a tenfold greater compensation for perhaps a tithe of the same labour. In some eases the whole sum in dispute would be poor compensation. In others, five per cent, of it will be very liberal. Hence, in all cases, professional compensation is gauged not so much by the amount of the labour, as by the amount in controversy, the ability of the party, and the result of the effort. And this is perfectly just.”

Our conclusion is that the Court of Civil Appeals erred in reversing the judgment of the district court because plaintiff in error was permitted to plead and prove Geo. W. Brackenridge’s wealth.

A final reason given by the Court of Civil Appeals for reversing the judgment of the district court was the admission of testimony of plaintiff in error to transactions with and statements by Geo. W. Brackenridge, though he was not called to testify by opposing parties in violation of article 3716 of the Revised Statutes.

Plaintiff in error urges that this testimony was not forbidden by the statute because defendants in error were sued as trustees. The petition states no cause of action against defendants in error in any other capacity than as executors representing Geo. W. Bracken-ridge’s estate. Not a fact is averred on which they could otherwise be adjudged liable. Had any issue been tendered against defendants in error in any other capacity than as executors, still the testimony ought to have been excluded under the rule announced in Spencer v. Schell, 107 Tex. 47, 48, 173 S. W. 867, 868, where the Court, in an opinion by Chief Justice Phillips, held that the testimony mentioned in the statute was inadmissible where the action was brought by a party in a representative capacity, though that party was also suing in her individual right. In that opinion it is said: “If the suit be one by or against an heir in which ‘judgment may be rendered for or against him as such,’ the statute applies. In determining the scope of its operation, it is evident from its language that no account is to be taken that the judgment may operate for or against the heir in some other capacity. That the judgment may so operate is not by statute recognized as the test of its application. But what it cimsti-tutes as the test and inquiry is: May such a judgment be rendered as will operate for or against him in the capacity of an heir? If so, unless called by him, the adverse party is rendered an incompetent witness as to transactions with or statements by the decedent. The clause in the statute, ‘in which judgment may be rendered for or against them as such,’ means this, or it means nothing. To hold the' adverse party a competent witness as to such testimony in a suit like the present one would necessitate that the statute be construed as operative in actions by or against' heirs, only where judgment might be rendered for or against them exclusively as such, the effect of which would be to engraft an additional provision upon it.”

The judgment ’of the district court having been properly reversed by the Court of Civil Appeals, for the admission of testimony which was not allowed by the statute, it is ordered that the judgment of the Court of Civil Appeals be affirmed. The case is remanded to the district court for a new trial in accordance with this opinion.


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

text:
    SHAEFFER et al. v. SMYTH et al.
    No. 1441—5659.
    Commission of Appeals of Texas, Section. A.
    April 15, 1931.
    Goggans & Allison, James E. Gray, and R W. Gray, all of Dallas, for plaintiffs in error.
    Goree, Odell & Allen and D. L. Gambill, all of Port Worth, and Dabney, Goggans &1 Ritchie, of Dallas, for defendants in error.
   SHARP, J.

This case was tried before the Honorable P. O. Beard, judge of the Seventy-First judicial district, sitting for the Honorable Royall R. Watkins, judge of the Ninety-Fifth judicial district. Judgment was rendered deny-' ing plaintiffs any recovery against the defendants on April 5, 1928. An appeal was made to the Court of Civil Appeals for the Fifth supreme judicial district at Dallas, and the ease by an order of equalization of the Su-; preme Court was transferred to the Court of Civil Appeals for the Eighth supreme judicial district at El Paso. Motion was made by the defendants in error to the Court of Civil Appeals at El Paso to strike out the statement of facts, which motion was sustained. 22 S. W.(2d) 1088. A writ of error was granted.

The first question for decision is: Did the Court of Civil Appeals at El Paso err in sustaining the motion to strike out the statement of facts? The fact's pertinent to the motion ar.e set out as follows:

It appears from the record that the statement is not certified by the official stenographer, but at the end thereof is an agreement signed by counsel that it was a full, true, and complete statement in narrative form of all material evidence adduced upon the trial. No contention is made that it is not a true and correct statement of the testimony introduced. Below this agreement appears the following:

“Examined, approved and ordered filed as a part of the record in this case.
“January 28-’29.
“P. O. Beard, By Rpyall R. Watkins,
“Presiding Judge.”

It further shows that the transcript and statement of facts were filed on January 22, 1929, in the Court of Civil Appeals for the Fifth judicial district at Dallas, and the statement of facts refiled in that court on January 28, 1929, in accordance with an order of that court made upon motion of plaintiffs in error, asking'that they be allowed to so file same. This case was later transferred from the Court of Civil Appeals at Dallas to the Court of Civil Appeals at El Paso, and was filed in the latter court on June 25, 1929. The case was set for submission on October 30, 1929, and at that time the defendants in error filed a written motion to strike out the statement of facts then on file, “because said 'purported statement of facts was not and has not been approved, signed or authenticated in compliance with article 2239 of the Revised .Civil Statutes of Texas for 1925 and because .said purported statement of facts was not land has not been submitted to the judge who tried this case in the lower court and has not been found by such judge to be correct and has not been approved and signed by such .judge in compliance with article 2243 of the ■Revised Civil Statutes of Texas.”

The Court of Civil Appeals sustained the motion and affirmed the judgment on December 12, 1929.

Judge Claude M. McCallum, judge of the 101st judicial district court of Dallas, Tex., ;made the following affidavit:

“My name is Claude M. McCallum and I am Judge of the 101st Judicial District Court of Dallas County, Texas. During the year 1928 I was presiding Judge of the Civil District Court of Dallas County, Texas. During this time there were numerous cases taken up by appeal where the Statement of Facts and bills of exception were not signed by the out of town Judge authorized by law to preside in the Dallas Courts. Due to the inconvenience, delay and frequent hardships resulting to attorneys and parties having to secure the signature of the out of town Judge at considerable distance from Dallas, it has been frequently the custom to sign the out of town Judge’s name with his consent, sometimes given verbally, and sometimes written to us to sign, and sometimes telephoned, to the statement of facts where both parties have agreed to the statement of facts. The legality of this procedure has been accepted as being correct and valid. I also know, of my own knowledge,'that frequently statement of facts are not seen or read by the trial judge, even when present. He simply accepts the stenographer’s statement and the agreement on both sides that the statement is correct. In other words, the approval by all parties usually is sufficient for the trial judge to approve the statement.”

Judge Royall R. Watkins made two affidavits. He said:

“The case of Charles C. Shaeffer, Trustee, et al. vs. J. C. Smyth et al., which was numbered C3193 upon the docket of the 95th Judicial 1 district Court, was tried before Honorable r. O. Beard, as Judge of that court at that time.
“On or immediately prior to January 22, 1929, Mr. R. W. Gray, an attorney for the plaintiffs in said ease, came to me and advised me that he was carrying the case to the Appellate Court and that his time had about expired for getting the Statement of Facts approved and filed. It is my recollection that he stated that the very day upon which he was talking to me was the last day that he had to get the Statement of Facts approved and filed. He further stated that he had attempted to get in touch with Judge P. O. Beard, who had tried the ease as aforesaid, but had been unable to do so. Pie requested that I sign and approve the Statement of Facts, but I refused to do so, upon the ground that I had not tried the case and had no authority to do so, I got in touch with the office of Goree, Odell & Allen by telephone and asked for L. L. Gambill, who I understood was handling this ease for the defendant, but was unable to reach him, and thereupon talked to Mr. W. M. Odell of that firm. I asked Mr. Odell if his firm, as attorneys for the defendant, would agree for me to sign the statement of facts as requested by Mr. Gray, and Mr. Odell replied that he was unable to do so. I did not sign or approve the Statement of Facts.
“I recall that while Mr. Gray was in my office we tried to call Judge P. O, Beard at Marshall, Texas, but received the report that he was not there but was in Dallas and we were unable to get in communication with him.
“My next connection with the matter was on January 28, 1929. At or immediately pri- or to that time I received a communication from Judge P. O. Beard, either by way of a letter or by a telephone conversation, and I am reasonably certain that it was by letter. The substance of that communication was that Judge Beard stated that Mr. Gray had been unable to reach him to get him to approve the Statement of Facts in the above case. He asked that I ‘take care of them,’ or ‘try to look after them,’ or words to that effect, and requested that I sign the Statement of Facts for him.
“I then signed the Statement of Facts in the manner as shown by the Statement of Facts, towit, ‘P. O. Beard, by Royall R. Watkins, January 28,1929.’ I did not look at, examine or in any way pass upon the Statement of Facts, but simply signed Judge Beard’s name, by me, at his request, as will appear from the Statement of Facts.”

In the second affidavit it is said: “My name is Royall R. Watkins and I am Judge of the Ninety-Fifth Judicial District Court of Dallas County, Texas. At the time that I signed Judge P. 0. Beard’s name by his direction to the Statement of Facts in the case of Shaeffer, et al. vs. Smyth, I considered his authorization sufficient authority to validate the act. In one or two cases within my knowledge in my Court such authorization has been given where both parties have agreed to the Statement of Facts and agreed that I could sign the same for the Judge Presiding.”

Article 2092, Vernon’s Annotated Civil Statutes, provides rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction. Among other provisions and subdivisions it contains the following:

“21. * * * The judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own court room try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending, and every judgment and order shall be entered in the minutes of the court in which the case is pending and at the time the judgment or order is rendered, and two or more judges may try different cases in the same court at the same time, and each may occupy his own court room or the room of any other court. The judge of any such court may issue restraining orders and injunctions returnable to any other judge or court, and any judge may transfer any case or proceeding pending in his court to any other of said courts, and the judge of any court to which a case of proceeding is transferred shall receive and try the same, and in turn shall have power in his discretion to transfer any such case to any other of said courts and any other judge may in his court room try any ease pending in any other of such courts.”
«24. * * *. Any ju(jge may hear any part of any case proceeding pending in any of said courts and determine the same, or may hear and determine any question in any case, and any other judge may complete the hearing and render judgment in the case.
«25. * * * Any judge may hear and determine demurrers, motions, petitions for injunction, applications for appointment of receivers, interventions, pleas of privilege, pleas in abatement, all dilatory pleas, motions for new trial and all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting, and the judge in whose court the case is pending may thereafter proceed to hear, complete and determine the case or other matter, or any part thereof, and render final judgment therein. Any judgment rendered or action taken by any judge in any of said courts in the county, shall be valid and binding.”

The foregoing subdivisions of article 2092, supra, are applicable to the civil district courts of Dallas county.

In the case of Walter Pratley v. Sherwin-Williams Company of Texas, 36 S.W.(2d) 195, 196, recently decided by this section of the Commission, the foregoing sections of article 2092, supra, were construed. It was contended in that case that Judge P. 0. Beard, the same judge who participated in this case, did not take any part in the proceedings had in the ease from the presentation of the pleadings to the rendition of the judgment, his only act being the hearing of and entering an order overruling the motion for new trial; therefore he was not the judge before whom the cause was tried, and that he did not have the authority to extend the time for filing the statement of facts therein, but that power rested only with Judge 1-Iare, who, like Judge Beard, was called from his district to try cases in the district courts of Dallas county, and who was the judge before whom the cause was tried. In that case it was held that Judge Beard had the right to make the order extending the time, for- the filing of the statement of facts.

In the foregoing opinion it was said: “In many of the district courts of this state the dockets had become congested with cases, and to meet this condition article 200a, Vernon’s Annotated Texas Statutes, dividing the state into nine judicial districts, was adopted. It further provides the ways and means of how the services of the various district judges of Texas may be utilized in the trial of eases. It was evidently the purpose of the Legislature in -enacting the article aforesaid known as the Administrative Judicial Districts Act to devise means of utilizing the services of the various district judges of this state by authorizing their transfer from one district to another to facilitate the disposition of cases and to try and dispose of accumulated business.”

In the course of the opinion it was further said:

“The right of appeal from a case tried in the courts of this state is a valued one and is guaranteed by the Constitution and the decisions. Shelton v. Wade, 4 Tex. 150, 51 Am. Dec. 722; Eppstein v. Holmes, 64 Tex. 560; 3 Tex. Jur. § 3, p. 35.
“It is a further well-settled rule in this state that statutes giving and regulating the right of appeal are recognized as remedial in their natur-e and should receive a liberal construction in furtherance of the right of appeal. Shelton v. Wade, 4 Tex. 150, 51 Am. Dec. 722; Eppstein v. Holmes, 64 Tex. 560; 2 R. C..L. § 6, pp. 29 and 30.”

In view of the foregoing statutes, we think the sound rule to be that, where a statement of facts has been accepted and approved by counsel for both sides, the judge who actually heard the evidence in the case may properly request and direct any judge to sign his name thereto in approval thereof, and the statement of facts so- signed and approved is entitled to consideration.

Therefore, in view of this record,- in our judgment the Court of Civil Appeals erred in sustaining the motion to strike out the statement of facts.

The Court of Civil Appeals in its opinion held that: “In the absence of a statement of facts, none of the assignments and propositions submitted by plaintiff in error show any error.”

We have examined the assignments and propositions submitted by plaintiff in error, and, in our opinion, they raise questions of fact, and, perhaps, mixed questions of fact and of law.

Therefore we recommend that the judgment of the Court of Civil Appeals should be reversed and the cause remanded to that court for further consideration.

CURETON, C. J.

Judgment of the Court of Civil Appeals reversed, and the cause remanded to the Court of Civil Appeals for further consideration, as recommended by the Commission of Appeals.

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


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

text:
    ELDER v. STATE.
    No. 13846.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1930.
    Rehearing Granted March 18, 1931.
    State’s Rehearing Denied April 15, 1931.
    W. H. Browning, of Lampasas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, two years in the penitentiary.

There are no bills of exception in this record. This being the way all complaints of procedure must be brought before us (article 667, C. C. P.), we are without power or right to consider any question presented in the able brief filed by appellant’s counsel, save such as pertain to the suffieience of the testimony. The sheriff of the county testified that he saw appellant come from a certain domino parlor with a paper sack or package in his hand, get in a car and drive off down by the Barnes Lumber Company, then turn back to the bridge by Hensley’s filling station. Witness followed and drove his car up to a point just behind the one driven by appellant. He testified that looking through the glass in the back of appellant’s car he observed the occupants put their hands up to their mouths as if drinking. He said that appellant got out of his ear, leaving the car door open, and that witness walked to said car and saw the package or paper sack setting on the floor of the car in such position as would have been between the driver’s feet. Witness took the package and found it to contain a half gallon of whisky. He said appellant got from under the steering wheel when he got out of the car. Cross-examined, this witness affirmed that he was positive he saw appellant take said package to the car. Another state witness corroborated the sheriff as to the fact that -appellant got out of the driver’s seat of his car at the filling station, and that there was setting there in the ear a paper sack which had in it a half gallon of whisky.

Appellant testified that he drove the car in question to said filling station, but said he had no package before he got in the car, put none in the car, and knew nothing of the presence of any package. He introduced a number of witnesses who testified that they saw him just before he got in the car, and saw no package in appellant’s hand.

The testimony for the state, if believed by the jury, would be sufficient to make out a case against appellant for transporting intoxicating liquor. While this testimony is strongly combated by that offered for appellant, it is the rule of our statutes and all of our decisions that the jury are the exclusive judges of the weight of the testimony as well as the credibility of the witnesses, and when there is any testimony in the record which, if accepted by the jury, will suffice, we invariably decline to reverse such case.

In his.motion for new trial appellant set up misconduct of the jury. We have examined the testimony of the jurors heard by the court when said motion was presented. The alleged misconduct was that some one said in the jury room that appellant had done other things which would justify his being sent to the penitentiary. All the jurors testified on the hearing of the motion. No one of them would claim to have made any remark about appellant’s past, but several of them testified that they heard some such remark, but that it was at once stopped by the foreman who said nothing of that kind could be considered. A large number of the jurors said they did not hear any such remark, and most of those who said they did hear it stated that they had already agreed upon their verdict at the time they heard such remark. Several of the jurors testified that at the time they heard the remark made they had already voted that appellant was guilty, and had also fixed by their agreed verdict the amount of his penalty. When the record presents to the trial court such condition of conflict, we have always said that the action of the trial court in overruling the motion for new trial, based on such misconduct, would be upheld by us. Manley v. State, 92 Tex. Cr. R. 37, 244 S. W. 533; Kelly v. State, 95 Tex. Cr. R. 138, 252 S. W. 1065; Rosamond v. State, 97 Tex. Cr. R. 639, 263 S. W. 1067; Ross v. State, 98 Tex. Cr. R. 567, 267 S. W. 499. The remark made, if any was made, was but a passing remark which was promptly rebuked, and the exact language of which no one of the jurors could give.- It would be manifest that if it was made after the jury had agreed upon their verdict, it could be of no harm to the accused. The discretion of the trial court must be shown to have been abused. We do not think this has been shown.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

Responding to the motion for rehearing, we have carefully considered the testimony of each of the twelve jurors who testified upon the hearing of the motion for new trial, to see if there be evidence of the presence of any illegal factor in the jury’s deliberations which might have caused or contributed to the verdict finding appellant guilty and fixing his punishment at two years in the penitentiary.

That in the jury room, after retirement, the past record of appellant in regard to other violations of law was mentioned, seems beyond doubt. The jurors divided in testimony as to when appellant’s past misdeeds were referred to, but a majority seemed to agree that while it may have been after all had voted guilty, it was before agreement as to penalty. It is in testimony that after agreeing that appellant was guilty, nine jurors were for a penalty of one year and three for two years. The latter penalty was finally agreed upon, which establishes that in some way and by some argument the views of nine men as to penalty were changed. If, as stated, after the vote was first taken on the penalty it was then said by some juror that whether guilty of this offense or not appellant had done enough other things for which he ought to be in the penitentiary, and upon a subsequent vote on the penalty nine jurors had changed to a greater penalty than before, this would át least be persuasive that such statement may have been harmful. Upon more careful scrutiny we are led to believe the record open to the suggestion of injury resulting from such misconduct. We give to appellant the benefit of the probability.

The motion will be granted, the judgment of affirmance set aside, and the judgment of the trial court will now be reversed and the cause remanded.

On State’s Motion for Rehearing.

MORROW, P. J.

A re-examination of the testimony touching the misconduct of the jury makes evident to the writer that the facts render a reversal of the case imperative.

One or two jurors did not hear the objectionable remarks or any comment upon them. With that exception, all of the jurors testified that the occurrence took place before they had agreed upon a verdict fixing the penalty. One of them, when recalled by the state, modified his testimony, but the modification is not deemed to have been such as to have justified the finding against the accused. The greater portion of the questions directed to the jurors related to their opinion that they were -not influenced by the improper testimony. The court has often said that such inquiry was not pertinent and cannot be considered on appeal. See Mitchell v. State, 36 Tex. Cr. R. 318, 33 S. W. 367, 36 S. W. 456. In many other cases the same announcement has been made. '

The state’s motion for rehearing is overruled.


author: CALHOUN, J.

text:
    Ex parte CONWAY.
    No. 14303.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Robert Cralle and B. L. Bradley, both of Groesbeck, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

This is an appeal from a judgment of the Seventy-Seventh district court of Limestone county, Tex., upon a hearing in vacation of relator’s application for a writ of habeas corpus had before said court on the 23d day of February, 1931. The pertinent facts shown are as follows: On the 28th day of November, 1930, relator was indicted by the grand jury of the Eighty-Seventh district court of Limestone county, Tex., for the offense of murder, the indictment alleging that relator, on or about the 25th day of September, 1930, with malice aforethought killed one Jake Spurlock. Relator pleaded guilty on his trial on the 15th day of February, 1931, to the offense of murder without malice, and the jury found relator guilty of murder without malice, and assessed his. punishment at two years’ confinement in the state penitentiary. The evidence introduced by the state upon said trial showed that the offense for which relator was tried and convicted occurred on September 16, 1927, more than three years prior to the presentment of the indictment therefor. No appeal from said judgment of conviction was taken, but on the 19th day of February, 1931, attorneys for relator applied to the judge of the Seventy-Seventh district court of Limestone county for a writ of habeas corpus, alleging facts substantially as above. Said writ was granted, and a hearing was finally had on said application on the 23d day of February, 1931, relator’s contention being that the offense for which he was tried and convicted in the Eighty-Seventh district court was barred by the three-year statute of limitations, the evidence in said hearing showing said offense occurred more than three years prior to the presentment of the indictment therefor, and the court so found in the judgment. It was held that the offense was not barred and that the relator be remanded, from which judgment relator has appealed to this court.

The relator contends that the trial court erred in holding that, although the offense of murder without malice for which relator was convicted and sentenced occurred more than three years prior to the presentment of the indictment on which he was tried, said offense and the prosecution thereof was not as a matter of law barred by the three-year statute of limitations. The relator contends further that, because the present statute relating to the offense of murder provides that the court shall instruct the jury on the trial of the case that, unless from all the facts and circumstances in evidence the jury believes that the defendant was prompted and acted with malice aforethought, they cannot assess the punishment at a period longer than five years, said statute must be construed as comprising two separate and distinct offenses, one murder with malice aforethought and the other murder without malice aforethought, and that all unlawful homicides lacking the elements of malice aforethought are wholly analogous to the offense of manslaughter, which was part of the criminal jurisprudence of this state for many years, and that therefore the offense for which relator stands convicted is barred after three years under article 180 of the Code of Criminal Procedure, which provides: “An indictment for any other felony may be presented within three years from the commission of the offense, and not afterward; except murder, for which an indictment may be presented at any time.”

Under these conditions the only question that is necessary to be decided in the disposition of this appeal is whether or not the Legislature in the enactment of the present law pertaining to murder created two offenses. Appellant’s contention has been held untenable by this court in the case of Herrera v. State, 36 S.W.(2d) 515, 517, not yet reported [in State Report], and in which a motion for rehearing has been overruled, and in which case it is announced as a correct construction of our present murder statute that there is now only one offense, and that is the offense of murder, for which “the legal penalty is death or confinement in the state penitentiary for any term of years not less than two, dependent upon the proof. If however, the jury finds that there is an absence of malice aforethought, they are privileged to assess no higher penalty than confinement in the penitentiary for five years.”

It necessarily follows that, there being but one offense created, that of murder, and that offense not being barred under the statute of limitations above quoted, the trial court was correct in his holding that the offense of which appellant was convicted was not barred.

The judgment is affirmed.

PER OURIAM. '

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


author: LATTIMORE, J.

text:
    MITCHELL v. STATE.
    No. 14224.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    P. A. Dale, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, two years in the penitentiary.

An unbroken line of authorities in this state lay down the rule that, when one is charged with burglary with intent to commit some felony, it is necessary that the indictment set out the constituent elements of the felony which the state charges the accused intended to commit after his entry into the building. Reed v. State, 14 Tex. App. 666; Treadwell v. State, 16 Tex. App. 643; O’Brien v. State, 27 Tex. App. 448, 11 S. W. 459. The indictment in the instant case fails to allege that appellant intended to take from the possession of its named owner corporeal personal property in said house. This is one of the necessary elements of the crime of theft; this being the felony which the state set up in its indictment appellant intended to commit after entry. There are many other authorities in point It seems unnecessary to attempt to analyze them.

The indictment appearing to be bad, the judgment will be reversed, and the prosecution ordered dismissed.


text:
    McDONALD v. STATE.
    No. 14207.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    York & Neeld, of Houston, for appellant.
    O’Brien Stevens, Cr. Dist. Atty., of Houston, and Llóyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, aggravated assault; punishment, sixty days in the county jail.

The record is here without either statement of facts or any bill of exception, and no reversible error appears therein.

We find in the record a motion signed by the assistant criminal district attorney of Harris county and the attorney for appellant asking that this cause be dismissed. This court will not dismiss said appeal in the absence of a sworn affidavit by the appellant in person asking to have said appeal dismissed.

The judgment is affirmed.

PER CURIAM.

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


text:
    SLONE v. STATE.
    No. 14198.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The conviction was for theft of turkeys, and the punishment assessed at twenty-five days in the county jail.

Creed Williams, the owner of the turkeys alleged to have been stolen, testified that he missed four of his turkeys around 6 o’clock on the morning of the 10th day of February, 1930. He subsequently identified three of his turkeys in the possession of the Potter Produce Company in Ballinger, Tex. The said Williams was corroborated in the identification of the turkeys found in the possession of the produce company as being his turkeys. Representatives of the produce company testified that the appellant brought the turkeys identified by Williams to their place of business and sold them on the 10th day of February around 8 o’clock in the morning.

The appellant’s defense was that of an alibi. There was also testimony to the effect that a man by the name of Claud Fugit had about this time borrowed the automobile belonging to appellant’s father, which automobile corresponded to the automobile being driven at the time the turkeys were delivered to the produce company. There was also testimony to the effect that there was a striking resemblance in the size and age of Fugit and the appellant.

The case was submitted to the jury under the law of circumstantial evidence, and appellant’s affirmative defense of an alibi was submitted.

Appellant’s bills of exceptions Nos. 1, 2, and 4 complain of permitting the introduction of testimony showing the idéntifieation of the turkeys as belonging to the injured party by the witnesses Williams, Howard Kelley, and Ralph Tankersley. The said testimony was objected to because it was the opinion and conclusion of said witnesses. The witness Williams testified positively that they were his turkeys, that he found them at the prod-' uce company, and that the turkeys belonged to him. The other two witnesses testified that they were acquainted with the turkeys of the injured party, and were positive in their identification thereof. In our opinion, these bills do not show error.

Appellant’s bill of exception No. 3 complains that, after the state had proven by the witness Creed Williams that he lost some turkeys about the 10th day of February, 1930, and went to the Potter Produce Company at Ballinger and recognized his turkeys at said produce house, the state then, introduced as a witness Deputy Sheriff Bob Sumerall, who, over the objection of the appellant, testified that he arrested the appellant along in Feb>-ruary, 1930, in tlie town of Ooleman, and took the defendant to Ballinger, Tex., and around to the Potter Produce Company at said place; that he knew a Mr. Windham and a negro'there by the name of Dave Jones; that it was on the 17th day of February, 1930, that he took the appellant to Ballinger, and that on said occasion he saw said Windham and said Dave Jones at the Potter Produce Company; that he took the defendant with him into the produce house there, and this negro and Windham saw him there at that time. Appellant objected to each and every part and portion of same, because appellant was under arrest and in the custody of said deputy sheriff, and because said alleged facts were making the appellant give testimony against himself, and was exhibiting the appellant to the other state’s witnesses, Jones and Windham, for the purpose of making the appellant give testimony against himself, and because same was immaterial, irrelevant, improper, and waá in effect permitting the witness Sumerall to give to the jury his opinion that the appellant was the man who had stolen the turkeys, and was highly prejudicial,

The bill does not show that there was any conversation between the parties at the time as to the identification of the appellant, nor that they were asked to identify the appellant, nor that any evidence was offered thereafter on the trial of this case to this- effect. .This bill does not show error.

By bill of exception No. 5 appellant complains of the action of the court in refusing to allow appellant to testify as a witness in his own behalf, after the evidence was closed and the witnesses excused, but before any argument was had, that on February 9, 1930, he was at home at his. father’s and stayed there all night, which the evidence showed was some forty miles or more •from the home of the state’s witness, Creed Williams, from where the turkeys in question were taken. Appellant further complains of the refusal of the court to allow his mother and father to testify on the same issue, who would have testified that the appellant stayed all night at their home on the night of February 9, 1930, and was not away from there during the entire night. The court refused to admit this testimony or any part of it from either of said witnesses, stating as his reason that the witnesses had been excused, that no testimony from the state had been introduced, or attempted to be introduced, showing that any of the state’s witnesses saw the appellant on said night at or near the place or in the neighborhood of Creed Williams. The bill further shows that the evidence was tendered for the purpose of showing that the appellant could' not have been at Creed Williams’ place, where the turkeys were alleged to have been missing, on the night of February 9, 1930, said Williams having testified that he missed the turkeys on the morning of February 10, 1930, and that said testimony was .material and was offered for the purpose of showing an alibi.

The main defense of the appellant in this case was an alibi, and, the testimony showing that the turkeys were at the home of the witness Williams on the evening of February 9, 1930, and were gone at 6 a. m. the next morning, February 10, 1930,'it was very material for the appellant to show, if- he could, where he was during the night of the 9th. In our opinion, it should have been admitted in evidence. It is not shown that it would have impeded the progress of the trial or in any way interfered with the due and orderly administration of justice. It is within the judicial discretion of the trial court whether testimony shall be permitted during the argument, and whether the testimony proposed to be introduced during the argument is in rebuttal or not is immaterial, if it ■ appear to be necessary to a due administration of justice. Branch’s P. C. § 378; Gonzales v. State, 32 Tex. Cr. R. 620, 25 S. W. 781; Reynolds v. State, 71 Tex. Cr. R. 454, 160 S. W. 362; Raleigh v. State, 74 Tex. Cr. R. 484, 168 S. W. 1050. It is only when this discretion is clearly abused that the action of the trial court will be reviewed. But the discretion of the trial court is not so broad if the proffered evidence is material and bears directly upon the main issue in the case and is offered before the argument begins; it would not be within the discretion of the trial court to exclude it, unless it was offered under conditions which would impede the progress of the trial or in some way interfere with the due and orderly administration of justice. Stone v. State, 91 Tex. Cr. R. 313, 239 S. W. 209; De Derosa v. State, 74 Tex. Cr. R. 604, 170 S. W. 312. The refusal of the court to allow the introduction of said testimony, same being material to the main issue in the case, was such error as calls for a reversal of this case.

Bills of exceptions Nos. 6, 7, and 8 complain of the argument of the district attorney in his closing speech to the jury. As this case will have to be reversed upon another issue, and the argument complained of is not likely to occur on another trial, we do not deem it necessary to discuss said bills.

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

PER OURIAM.

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


text:
    BURNELL v. STATE.
    No. 14134.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Joe Ellington, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The record is here without any bills of exception. The indictment correctly charges the offense, and is followed by the charge of the court and the judgment. The sentence, however, directs that appellant be confined in the penitentiary for one year for possessing “liquor” for purposes of sale. We have no such offense known to our law. Appellant was found guilty by the jury of the possession of intoxicating liquor for purposes of sale. The evidence is amply sufficient to support the judgment. The sentence will he reformed so as to direct appellant’s confinement in the penitentiary for the offense of the unlawful possession of intoxicating liquor for purposes .of sale.

As reformed, the judgment will be affirmed.


author: MORROW, P. J.

text:
    BURNELL v. STATE.
    No. 14135.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Joe Ellington, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for a period of three years.

Possessed of an alias capias for the arrest of the appellant, some officers were waiting for him. Observing him in his automobile, they intercepted him, prevented his escape, and arrested him. In the automobile which he was driving immediately before the time of his arrest there was a ten-gallon keg containing whisky. According to the state’s testimony, the keg was uncovered, and was observable without any search of the automobile. However, the appellánt claimed the keg was covered with an overcoat:

The appellant reserved no bill of exception to the introduction of the evidence touching the presence of the' whisky in his automobile. In his motion for new trial he advances the proposition that the capias for his arrest carried with it no authority to search the automobile. The appellant testified in his own behalf, and admitted the possession and transportation of the whisky. The appellant’s admission that he transported it was available as a basis for conviction to the state, although the officers’ testimony to the same effect might have been illegally received. See Bonilla v. State, 108 Tex. Cr. R. 603, 2 S.W.(2d) 248; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Frey v. State, 109 Tex. Cr. R. 168, 3 S.W.(2d) 459; Sifuentes et al. v. State, 109 Tex. Cr. R. 398, 5 S.W.(2d) 144; Sherow v. State, 110 Tex. Cr. R. 539, 9 S.W.(2d) 353; Kitchens v. State, 111 Tex. Cr. R. 45, 10 S.W.(2d) 999; Benoit v. State, 36 S.W.(2d) 168, not yet reported [in state report].

The question of the illegal search which the appellant attempts to raise in his motion for new trial is not presented for review, and is not decided.

The evidence is deemed sufficient to support the verdict.

In writing the judgment and sentence, the Indeterminate Sentence-Law is ignored. Under the statute, article 775, O. O. P., 1925, the judgment should condemn the appellant to suffer confinement in the state penitentiary for a period of not less than one nor more than three years. In that particular the judgment is reformed, and, as reformed, it is affirmed.


author: HAWKINS, J. LATTIMORE, J.

text:
    ROBINSON v. STATE.
    No. 14009.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Denied April 22, 1931.
    Bozeman & Cathey, of Quitman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

The motion for new trial was overruled on the 13th day of June, 1930, at which time notice of appeal was given and ninety days granted in which to file statement of facts and bills of exception.

The time expired on the 11th day of September. The statement of facts and all bills of exception were approved and filed on the 12th day of September, which was one day beyond the period of extension. Under such circumstances neither the statement of facts nor bills of exception may be considered. Subdivision 5, art. 760, C. C. P. (1925); Newsome v. State, 105 Tex. Cr. R. 325, 288 S. W. 212; Triggs v. State, 105 Tex. Cr. R. 578, 289 S. W. 391. Many other eases to the same effect will be found collated in Vernon’s Ann. Tex. C. C. P., art. 760, note 36.

It is noted that the judgment condemns appellant to be guilty of “selling liquor,” and the sentence is likewise faulty. Selling liquor is no offense unless the liquor be intoxicating. The judgment and sentence will be reformed to adjudge appellant to be guilty of selling intoxicating liquor, and, as' thus reformed, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant accompanies his motion for rehearing by a statement of the district clerk giving his interpretation of a docket entry of the trial judge upon the date the motion for new trial was overruled in the court below. Also a statement from the trial judge in relation to a showing upon the jail docket of the date of the release of the appellant, and upon this showing appellant asks us to consider the bills of exception as having been filed* within the time required by law.

The transcript before this court when the original opinion was written, the correctness of which was certified by the district clerk, shows that the criminal minutes of the district court contained the entry of the overruling of appellant’s motion for new trial as of the date stated in our original opinion. We further note that the sentence pronounced against appellant, which is recorded in volume 3, page 513, of the criminal minutes of the court, which sentence is never pronounced until after the overruling of the motion for new trial, is of the same date, June 13th. Said transcript further shows tha.t at page 127, volume E, of the criminal minutes of said court, appears an entry of the recognizance for appeal executed by the appellant and his sureties. The date of this recognizance appears Jane 12th. We are not impressed with the fact that the bills of exception were filed within the time required by the statute. This court .accepts as correct the minutes of trial courts, and cannot overturn or decline to give credit to same upon such showing as is made here.

The motion for rehearing will be overruled.


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

text:
    Ex parte GORDON.
    No. 14205.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Rehearing Denied April 22, 1931.
    Gordon O. MeGehee and J. A. Collier, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an habeas corpus appeal. By way of a writ of habeas corpus, appellant sought release from custody resulting from an arrest as a fugitive from justice. It appears that he was held on an executive warrant from which we quote as follows: “Whereas, it has been made known to me by the Governor of the State of Michigan that Anthony Gordon stands charged by complaint and warrant before the proper authorities, with the crime of assault with intent to kill and murder committed in said State, and that the said defendant has taken refuge in the State of Texas, and Whereas, the said Governor, in pursuance of the Constitution and Laws of the United States, has demanded of me that I cause the said fugitive to be arrested and delivered to William A. Fuller who is, as is satisfactorily shown, duly authorized to receive him into custody and convey him back to said State, and, Whereas, said demand is accompanied by copy of said complaint and warrant duly certified as authentic by the Governor of said State, etc.”

It is shown that attached to the requisition of the Governor of Michigan is a document called the executive warrant, which is a statement under oath charging the accused with assault to murder. The appeal seems based upon the proposition that the executive warrant is invalid in using the word “complaint” descriptive of the charge against the accused instead of the word “affidavit.” The document attached to the Governor’s executive warrant contains the requisites demanded by article 1000, O. O. P. 1925, which states that the eomplaint shall name the accused, the offense, the state from which he fled, the state in which the offense was committed, and that it was in violation of the criminal laws of the demanding state. In our statute, title 5 O. G. P. (articles 212-303), the affidavit upon which the warrant of arrest may be issued is described as a “complaint.” See article 221, O. G. P. In extradition eases the words “complaint” and “affidavit” have been regarded by this court as synonymous. See Ex parte White, 39 Tex. Cr. R. 497, 46 S. W. 639; Ex parte McDaniel, 76 Tex. Cr. R. 184, 173 S. W. 1018, Ann. Cas. 1917B, 335. Moreover, the presumption that the Governor’s warrant justifies tlie arrest is indulged in the absence of proof or inherent defect showing the contrary. See Ex parte Nix, 85 Tex. Cr. R. 307, 212 S. W. 507; Ex parte Roselle, 87 Tex. Cr. R. 470, 222 S. W. 248; Ex parte Cheatham, 50 Tex. Cr. R. 53, 95 S. W. 1077; Ex parte Stanley, 25 Tex. App. 378, 8 S. W. 645, 8 Am. St Rep. 440.

In the present ease, the Governor’s warrant is regular on its face and in accord with title 14, Tex. C. O. O. (articles 997-1008), covering, the subject of fugitive from justice. The burden of proof which rests upon the appellant to overcome the presumption in favor of the accuracy of the recitals in the warrant has not been discharged. See Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174; Ex parte Jones, 82 Tex. Cr. R. 627, 199 S. W. 1110; Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490; Ex parte Ponzi, 106 Tex. Cr. R. 58, 290 S. W. 170; Ex parte Celey, 110 Tex. Cr. R. 454, 10 S.W.(2d) 94; Ex parte Yawman, 113 Tex. Cr. R. 20, 18 S.W.(2d) 647; Ex parte Southard, 104 Tex. Cr. R. 14, 282 S. W. 223.

The law contemplates that the habeas corpus hearing be before the court without a jury. Ordinarily the order of the court, after hearing the testimony, is to remand the accused to custody or discharge him. See articles 152-158, C. C. P. In such cases the ruling of the trial court upon the evidence is not ordinarily material, for the reason that on appeal, if there be evidence improperly received or rejected, the reviewing court can disregard or consider the evidence according to its merit. See Ex parte Lambert, 76 Tex. Cr. R. 50, 172 S. W. 783; Ex parte Walck, 25 Tex. App. 168, 7 S. W. 665; also Ruling Case Law, vol. 12, p. 1250, § 68.

The bills of exception have been examined, and in them nothing has been perceived which vitiates the judgment remanding the relator.

The complaint of the introduction of the so-called criminal warrant, even if improper, could not affect the result. As heretofore stated, neither it nor other evidence found in the record is such as to overturn the presumption of the authority of the Governor of Texas to issue the executive warrant under which the appellant is held. The. same may be said with reference to the objection to the oral proof of a witness touching the laws of Michigan. The warrant of the Governor of'Texas declares that the requisition is accompanied by complaint and warrant duly certified by the Governor as authentic, and that the accused was charged by complaint with a felony. The presumption of regularity would not be overcome by the receipt in evidence on behalf of the state of improper testimony. By the statement last made, however, it is not intended to convey the idea that the testimony was improper. The witness testified to his knowledge of the laws of Michigan. If the laws of Michigan are as he states them, then the executive warrant would support them. If the evidence is inadmissible, then the statement'in the warrant that the appellant is charged by complaint is sufficient under the laws of Texas to authorize his detention.

The judgment is affirmed, and the appellant is remanded to custody.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for rehearing appellant cites no new authorities, and brings forward no new propositions. We think no need exists for restating the legal conclusions set out in the logical opinion of Presiding Judge MORROW. We call attention to the testimony of the officer of the state of Michigan as forti-. fying the statement in our opinion that the words “complaint” and “affidavit” are convertible terms in our practice; that a complaint under the laws and. practice of the state of Michigan is an instrument in writing signed and sworn to by the complainant.

We think the case properly decided, and the motion for rehearing will be overruled.