author: SPEER, J. ÜURETON, C. J.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. WRIGHT et al.
    (No. 868-4968.)
    Commission of Appeals of Texas, Section B.
    March 28, 1928.
    1. Courts <8=323 — Though jurisdiction may not be conferred by agreement where it depends on facts pleaded, parties may stipulate that facts exist.
    Though jurisdiction cannot be conferred by agreement of parties, where jurisdiction is dependent upon facts pleaded, parties may stipulate that such facts exist, and thereby show jurisdiction.
    2. Master and servant <©=>417(5) — Stipulation showing jurisdiction held sufficient proof on appeal of insurer suing to set aside compensation award that notice of injury and claim for compensation were filed within statutory time (Rev. St. 1925, art. 8307, § 4a).
    Where, in suit by insurer to set aside compensation award, it was stipulated that within statutory time insurer perfected its appeal to district court and that cause is properly before such court for hearing, it was a sufficient predicate as an allegation of jurisdiction, and dispenses with proof of alleged jurisdictional facts showing that notice of injury and claim for compensation were filed within time required by Rev. St. 1925, art. 8307, § 4a.
    3. Trial <®=»35l (2) — Issue as to lump sum payment to compensation claimant, not having been submitted to jury, was waived by claimant.
    Where, in employee’s suit under Workmen’s Compensation Act (Rev. St. 1925, arts. 8306-8309), for compensation for injuries, there was a jury trial and cause was submitted on special issue, but issue of right to lump sum payment was not submitted nor requested by either party to be submitted, held, that it was waived by plaintiff, and trial court had no authority to render judgment for lump sum upon the hearing for judgment after jury had been discharged.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Suit to set aside an award of compensation by the Texas Employers’ Insurance Association, insurer, against W. E- Wright, employee, and another. Judgment for defendants was affirmed by the Court of Civil Appeals (297 S. W. 764), and the insurer brings error. Judgments of district court and Court of Civil
    Appeals reformed, and, as reformed, affirmed.
    Lawther, Pope, Leachman & Lawther and Neth L. Leachman, all of Dallas, for plaintiff in error.
    J. H. Randell, of Denison, for defendants in error.
   SPEER, J.

The defendant in error secured an award before the Industrial Accident Board for injuries received, and upon appeal by the association to the district court of Grayson county, the claimant again recovered, and, upon appeal to the Court of Civil Appeals, this judgment was affirmed. 297 S. W. 764.

The question presented to us, though urged in different forms, is fairly stated in plaintiff in error’s proposition as follows:

“In a suit to set aside an award of the Industrial Accident Board under the Employers’ Liability Act it is necessary for the party claiming compensation to allege and prove that claim for compensation for injury in the course of the employee’s employment was given to the Industrial Accident Board and the insurer within six months after the happening thereof; and failure so to do is jurisdictional and defeats said cause.”

The statute upon which this proposition is predicated provides:

“Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in ease of death of the employe, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the board.” Rev. Civ. Stat. 1925, art. 8307, § 4a.

As corollary to the proposition announced, it is further asserted that “jurisdictional allegations are an integral and necessary part of the case, without which there is no cause of action”; upon the face of the proceeding the question of ‘jurisdiction of the subject-matter arises without objection by either party. Such want of jurisdiction of the subject-matter cannot be waived by the parties nor disregarded by the court; “no presumptions or intendments will be indulged in to give a court jurisdiction, especially so in a , proper statutory proceeding where all the statutory provisions are mandatory and exclusive.”

.While these corollary propositions are accurate statements of the law, and while plaintiff in error’s major proposition may for the decision be assumed to be correct, we think the assignments presenting alleged error should be overruled, because there is in the record the following stipulation:

“It is agreed between the parties to this suit that this matter was presented under the statute to the Industrial Accident Board, and that within the statutory time the insurance association perfected its appeal to this court, and this cause is now properly before this court for hearing.”

While it is true that jurisdiction cannot be conferred by agreement of the parties, it' is nevertheless equally true that where jurisdiction is dependent upon facts pleaded the parties may stipulate that such facts exist and thereby show jurisdiction. The evident purpose of the agreement quoted was to show jurisdiction in the district court over the case then pending before it. The stipulation is a sufficient predicate as an allegation of jurisdiction, and necessarily dispenses with the proof of the facts upon which jurisdiction rested if such proof should be held to be essential. We think the agreement is conclusive upon all issue of facts necessary to confer full jurisdiction upon the district court. It includes not only the ground of due appeal within státutory time, but every other ground or fact necessary to confer jurisdiction upon the district court. This being-true, it is unnecessary for us to discuss the proposition relied upon independent of the agreement quoted.

It is next complained that it was error to permit the claimant, over the association’s objection, to reproduce evidence as to a lump sum upon the hearing for judgment on July 19, 1926, “forty days after the trial of the cause before a jury,” and after the jury had been discharged. The propositions asserted under this assignment are to the effect, first, that in order to authorize a lump sum settlement it is necessary for the claimant to allege and prove that his is a “special case,” and that “manifest hardship and injustice would otherwise result” unless such lump settlement is awarded; second, that the association was entitled to a determination of this matter by the jury; and others which, however, we think are embraced in the two propositions stated.

We must sustain the assignment complaining of this action of the trial court. There was a jury trial, and the cause- was submitted upon special issues. The issue of the right to a lump sum payment was not submitted, nor was it requested by either party to .be submitted. Being as it was an independent issue not submitted nor requested to be submitted in whole or in part, it was waived by the plaintiff, and the trial court had no authority to render judgment thereupon for the complainant. Ormsby v. Ratcliffe (Tex. Sup.) 1 S. W. (2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S. W. (2d) 591.

We recommend that the judgments of the trial court and of the Court of Civil Appeals wherein defendants in error recovered judgment for the payment of a lump sum be reversed, and that the' judgment of the trial court in favor of defendant W. E. Wright against the Texas Employers’ Insurance Association for the sum of $7 per week for 401 weeks beginning May 1,1925, and in favor of J. H. Randell, attorney representing W. E. Wright, for one-third of said recovery, and of the Court of Civil Appeals affirming the judgment of the trial court, be affirmed.

ÜURETON, C. J.

• Judgments of the district court and Court of Civil Appeals reformed so as to allow defendants in error and their attorney the weekly payments as specified in the opinion of the Commission of Appeals, and, as reformed, said judgments are affirmed.

       — -TTnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARVEY, P. J.

license: Public Domain

text:
    ANDERSON et al. v. WARD et al.
    (Nos. 1077-4944.)
    Commission of Appeals of. Texas, Section A.
    March 28, 1928.
    1. Mortgages <S=s>497(2), 587 — -Foreclosure judgment and sale does not affect rights of record, owner of undivided interest, not made party.
    Record owner of undivided interest in real estate, not made party to suit to foreclose mortgage thereon, is not affected as to his rights in the land by the judgment and foreclosure sale.
    2. Limitation of actions <&=>!26 — Right of holder of trust deed to foreclose as against record holder of undivided interest, not made party in prior foreclosure suit, held subject to iimi- , tation.
    Right' of action of holder of trust deed to foreclose, as against interest of record holder of undivided interest not ‘joined in previous foreclosure suit, held subject to bar of four-year statute of limitation, since such defendant’^ rights were not affected by the judgment and sale in the prior proceedings.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by W. W. Ward and others against Mrs. J. S. Anderson and others, in which defendant named asserted a cross-action. A judgment for plaintiffs in the main action and for defendant named in the cross-action was affirmed as to the main action and reversed as to the judgment rendered in the cross-action (297 S. W. 281), and defendants bring error.
    Judgment of Court of Civil Appeals affirmed.
    Holland & Cousins, of Beaumont, for plaintiffs in error.
    Stephenson & Dies, of Orange, for defendants in error.
   HARVEY, P. J.

On February 1, 1908, W. A. Ward, S. W. Sholars, and John T. Hart executed to Mrs. J. S. Anderson, the plaintiff in error, their promissory note for the sum of $3,000, payable February 1, 1909. To secure the note they executed a deed of trust on a certain tract of 400 acres of land in Orange county, in which each of the payors in the note owned an undivided one-third interest. The note was never paid. The deed of trust conferred on the trustee therein the usual power of sale to enforce the payment of the note, if the same was not paid at maturity. This power of sale was never enforced, or requested to be enforced. On January 21, 1914, W. A. Ward, for and in consideration of $350 cash and natural love and affection, conveyed to his son, W. W. Ward, his one-third interest in the land, by warranty deed. This deed was duly recorded on January 25, 1914. •

On September 30, 1916, Mrs. Anderson filed suit against W. A. Ward, S. W. Sholars, and ■John T. Hart to recover on the $3,000 note and to foreclose the lien on the land. W. W. Ward was not a party to that suit. On October 30, 1916, judgment was rendered- in the suit, in favor of Mrs. Anderson, for the amount of the note and for foreclosure of the lien. Order of sale was duly issued and executed; Mrs. Anderson buying in the land at the sale. On April 7, 1925, W. W. Ward conveyed to K. W. Stephenson and Martin Dies an undivided one-half of his one-third interest in the 400-acre tract of land.

On October 1, 1925, the three last named parties brought this suit in trespass to try title against Mrs. Anderson and two others, who claim parts of the 400-acre tract under Mrs. Anderson.' In answer to the suit, Mrs. Anderson set up, among other things, a cross-action, seeking foreclosure of said deed of trust lien, as against the plaintiffs in this suit. The latter pleaded the four-year statute of limitation in bar of the foreclosure sought by Mrs. Anderson. The trial court rendered judgment in favor of the plaintiffs for the one-third interest in the land, and in favor of Mrs. Anderson, foreclosing the deed of trust lien as prayed in her cross-action. From this judgment the plaintiffs appealed, and the Court of Civil Appeals (297 S. W. 281) affirmed that part of the judgment which awarded the plaintiffs the land sued for, but reversed that part which foreclosed the deed of trust lien in favor of Mrs. Anderson, and rendered judgment, in that respect, in favor of the plaintiffs, who are the defendants in error here.

It is our opinion that the judgment' of the Court of Civil Appeals is correct. At the time Mrs. Anderson filed her foreclosure suit in September, 1916, W. W. Ward held the title to the third interest claimed herein by the defendants in error, and his deed therefor was properly of record. He was not a party to that suit, and therefore the judgment and foreclosure sale in the suit did not affect his rights in the land. Bradford V. Knowles, 86 Tex. 508, 25 S. W. 1117, and authorities there cited. As to him, and those who claim title under him, suit to foreclose the lien created by the deed of trust in question, was barred by the four-year statute of limitation long prior to the filing of Mrs. Anderson’s cross-action in the present suit.

We recommend that the judgment of the Court of Civil Appeals be in all things affirmed.

OURETON, O. J. Judgment of the Court of Civil Appeals affirmed.
      @=»For other caaea see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARVEY, P. J..

text:
    McFADDIN v. JEFFERSON COUNTY DRAINAGE DIST. NO. 6.
    (No. 1076-4822.)
    Commission of Appeals of Texas, Section A.
    March 28, 1928.
    1. Drains <⅞=>68 — Statute providing tax for maintenance and payment of legal debts held to comprehend payment of all legal claims against drainage district (Rev. St. 1925, art. 8138).
    Rev. St. 1925, art. 8138, providing for district tax for purpose of maintaining and repairing drainage improvements of drainage districts and for payment of legal debts and demands against district, helé to comprehend tax not only for payment of claims for labor and material used in making repairs, but also all other claims for payment of which district is legally liable.
    2. Drains <©=367 — Constitution authorizing tax for construction of drainage system authorizes tax for payment of claims for property damage arising from drainage improvement (Const, art. 3, § 52; art. I, § 17).
    Const, art. 3, § 52, authorizing a defined district tax for construction and maintenance of pools, lakes, reservoirs, dams, canals, and waterways-, for purpose of drainage or in aid thereof, helé to impliedly grant power to Legislature to tax for payment of just claims for direct damage to private property arising from system of drainage improvements, especially in view of article 1, § 17, providing no person’s property shall be damaged without adequate compensation.
    3. Drains <®=57 — Landowner claiming damage from overflow caused by drainage improvement cannot restrain expenditure of district’s funds, statute affording means of payment (Rev. St. 1925, art. 8138).
    Landowner having claim against drainage district for damage to land alleged to have been result of overflow caused by drainage improvement helé not entitled to restrain expenditure of funds of district in order that he might bring action to satisfy his claim, under Rev. St. 1925; art. 8138, affording landowner means for satisfaction of such judgment as he might recover.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.

      Suit by W. P. H. McFaddin against Jefferson County Drainage District No. 6. To review an order of the Court of Civil Appeals (291 S. W. 322), reversing an order of district court granting temporary injunction, plaintiff brings error.
    Affirmed.
    Howtli, Adams & Hart, of Beaumont, for plaintiff in error.
    Oliver J. Todd, Cbas. S. Pipkin and A. D. Moore, all of Beaumont, for defendant in error.
   HARVEY, P. J..

Jefferson county drainage district No. 6 is legally organized as a drainage district under tbe provisions of chapter 7, tit. 128, of the Revised Civil Statutes. The district voted bonds and with proceeds thereof has heretofore constructed an extensive system of drainage improvements in the district. A balance of $78,000 from the bond proceeds was left after completing the work above mentioned. The district now proposes to construct additional drainage ditches and improvements, supplementary to the main system already constructed; for which additional improvements the $78,000 now op, hand is intended to be spent.

The plaintiff in error brought this suit for-damages in the sum of $50,000, alleged to have been caused by the drainage improvements heretofore constructed, and for injunction to restrain the trustees of the drainage district from expending the $78,000 now on hand and from constructing the proposed additional drainage improvements. As grounds for such injunction he alleges, in substance, that Taylor’s bayou is a natural water course which runs through the drainage district; that he owns a large tract of land bordering upon and in the vicinity of the bayou, some distance below the drainage district; that the system of drainage improvements that has been constructed causes the surface water of the drainage district to be collected and thrown with great rapidity and volume into Taylor’s bayou, greatly overtaxing the natural capacity of that stream, and thereby causing the waters from the bayou to overflow the lands of the plaintiff in error and damage same; that unless the expenditure by said district of the funds now on hand be restrained, the. plaintiff in error will have no means of collecting his claim for damages. The plaintiff in error, as further ground for injunction, alleges that the proposed additional drainage improvements will cause further damage to his land, and seeks to enjoin the construction of .those additional improvements. The trial court granted a temporary injunction restraining the trustees of the district from expending the $78,000 now on hand, and from constructing the additional drainage improvements 'that are proposed. From the order granting such temporary injunction the drainage district appealed, and the Court of Civil Appeals reversed the order of the trial court and dissolved the temporary injunction.

Article 8138 of the statutes makes provision for a district tax for the purpose of maintaining and repairing the drainage improvements of a drainage district, and to pay legal debts and demands against the district. The purposes for which this tax is provided comprehend not only the payment of claims for labor and material used in making repairs, but also all other claims for the payment of which the district is legally liable. It therefore becomes necessary to examine the Constitution for the purpose of determining the power of the Legislature to authorize a tax for such purposes, without a vote of the people of the district.

Section 52 of article 3 of the Constitution authorizes a defined district, under legislative provision and by vote of the people therein, to issue bonds for “the construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes 0f * * * drainage * * * or in aid thereof.” The same section also expressly empowers the Legislature to authorize a tax in the district for the purpose of paying the interest and principal of the bonds so issued. These constitutional provisions contemplate the construction of drainage improvements of an enduring and permanent nature for the purpose of permanently securing to the people of the district the benefits resulting from their construction and maintenance. The improvements that are authorized are of such character that, in the natural course of things, their maintenance is capable of causing damage to private property. It is believed, therefore, that, by implication arising from such provisions, the Legislature is given power to authorize a tax in the district, as occasion requires, for the purpose of keeping such improvements in a perpetual state of efficiency and of paying all valid claims against the district which arise from the maintenance and operation of those improvements. This view is not wholly without support of judicial precedent. For it has been held in the case of Ogburn v. Barstow, Ward County Drainage District (Tex. Civ. App.) 230 S. W. 1036, in which case the writ of error was denied, that the Legislature has implied power, under these constitutional provisions, to authorize this tax for the purpose of maintaining and keeping in repair the drainage improvements which are constructed in pursuance of the provisions of section 52 of article 3 of the Constitution and of bhe statutes on the subject. No sound reason is discovered for excluding from such provisions an implied grant of power to the Legislature to make like provision for the payment of just claims for direct damage to private property. Additional support for this implied power is gained from a consideration of that provision of section 17 of article 1 of the Constitution, which reads as follows:

“No person’s property shall lie taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.”

This provision comprehends such direct ■damage to private property as results from the maintenance of improvements made for the public benefit, by a political subdivision ■of the state, under authority from the state. Nussbaum v. Bell County, 97 Tex. 91, 76 S. W. 430; Harris County v. Gerhart, 115 Tex. 449, 283 S. W. 139. The provisions of section 52 of article 3, as we construe them, accord in every respect with the constitutional provision just referred to, in that by said section the Legislature is impliedly invested with power to make suitable provision for adequate compensation, in every case, for Such direct damage to private property as results from the maintenance of the drainage improvements there authorized. Without the intervention of legislative authority in this respect, compensation, in many cases, would not be susceptible of judicial enforcement; and in such cases the abatement of the offending improvements would be the only recourse open to the eitizen for the enforcement of the rights guaranteed to him by the provisions of section 17 of article 1 of the Constitution. Besides, cases would often arise in which the abatement of the improvements would not redress an infringement of those-rights.

It is our opinion that if an action lies in favor of the plaintiff in error for the recovery of the damages claimed by him — a question we find unnecessary to decide at this time — the provisions of article 8138 of the statutes afford means having constitutional warrant, for the satisfaction of such judgment as the plaintiff in error may recover. Injury to him cannot result from the mere fact of expenditure of the district funds now on hand. He therefore is not entitled to restrain 'the expenditure of those funds.

With regard to that feature of the order of the trial judge, which temporarily enjoins the construction of the additional drainage improvements that are proposed to be made, the Court of Civil Appeals has found, in effect, that the evidence contained in this record does not support the allegations of additional injury to the lands of plaintiff in error in case the proposed additional improvements are constructed. In the light of the record before us, we cannot say that the Court of Civil Appeals has erred in this respect.

For the reasons which we have stated, and for those reasons only, we recommend that the judgment of the Court of Civil Appeals dissolving the temporary injunction granted by the trial judge be affirmed.

OUEETON, O. J. Judgment of the Court of Civil Appeals affirmed.
      <®=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SPEEE, J.

text:
    SALLEY v. AMICABLE LIFE INS. CO.
    (No. 908-4977.)
    Commission of Appeals of Texas, Section B.
    March 28, 1928.
    1. Insurance ®=384(2) — Provisions requiring repayment of agqnt’s commissions and permitting declining of application, without giving reasons, authorized-company’s return of premiums upon any reason deemed sufficient.
    Provisions in contract of insurance agent that, in case of company’s return of premiums on policy issued, agent should repay his commissions, together with stipulation that company will not disclose reason for declining an application, authorized insurance company to decline application or return premiums upon any policy previously issued upon any reason deemed by it to be sufficient, in agent’s suit for recovery of .commissions.
    2. Insurance <§=»84(2) — Insurance agent receiving and holding policies applied for held not entitled to commissions, where applications were rejected and policies recalled.
    Under agency contract providing that, in case of company’s return of premiums on policies issued, agent should repay amount of com-’ missions received, agent was not entitled to recover from insurance company premiums on policies which' had been issued and delivered to him for unconditional delivery to beneficiaries, nor on policies as yet unissued, where agent had not delivered policies which he held, but had merely notified contemplated assignee that he was holding policies until all of them should be received, and where during such time company exercised its right to decline application and recall policies.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Suit by E. -C. Salley against the Amicable Life Insurance Company. Judgment for defendant was affirmed by the Court of Civil Appeals (297 S. W. 612), and plaintiff brings error.
    Affirmed.
    Gordon O. McGehee and E. H. Ward, both of Houston, for plaintiff in error.
    Williams, Williams, McClellan & Lincoln, of W"aco, and Maurice Hirsch. and Ben J. Brown, both of Houston, for defendant in er-rdr.
   SPEEE, J.

This suit was instituted by E. C. Salley against the Amicable Life Insurance Company to recover the agent’s commissions upon certain insurance policies written by the agent. As to three of the policies it was .alleged the same had been issued by the company and delivered to the agent for unconditional delivery to the beneficiaries, but that the defendant had arbitrarily and without reason or cause demanded the return of the policies, which demand had been complied with over protest; and as to the remaining six of the batch of nine, it was alleged that proper applications had been taken by .the agent for desirable and eligible applicants, and that without just cause the defendant company had arbitrarily refused to issue policies, all to an amount of damages stated.

The defendant answered, tendering the general issue, and likewise pleading specially the provisions "of the agency contract upon which plaintiff sued, entitling it to refuse ánd decline any application tendered without having to..give any reason therefor, and that for reasons considered sufficiént to itself it had recalled the three policies previously sent to the agency and had declined to issue the remaining six, wherefore it was not indebted to the plaintiff in any amount whatever.

The trial court sustained a general demurrer to the cause with respect to the six unissued policies and heard evidence with respect to the three policies that were sent to the plaintiff. At the conclusion of the testimony the trial court summarily instructed the jury to return a verdict for the defendant. Upon appeal this judgment was affirmed. (Tex. Civ. App.) 29T S. W. 612.

While the ruling of the trial court with respect to both questions above mentioned was made the subject of a separate assignment in the Court of Civil Appeals, nevertheless the appellant recognized that an unfavorable ruling upon his assignment of error complaining of the peremptory instruction would be finally decisive of every question in the case and expressly stated in his brief that:

“If the court should overrule said assignment of error, it disposes of this case without the necessity of considering any of the other assign- ' ments of error in the case.”

While technically such holding might not be decisive upon the other questions presented, yet undoubtedly the right to recover commissions for the six policies not issued could .not be sustained if the 'right to such commissions for the policies actually issued could not be maintained.

The Court of Civil Appeals' referring to appellant’s statement said:

“Accepting that, statement as both binding and true, it is only necessary to determine that question,”

—and then proceeded to consider the alleged error with reference to the instructed verdict. We have • carefully considered the opinion by Justice Graves upon this point and thoroughly agree with it. It is clear,. we think, as pointed out in that opinion, there had been no delivery of the policies to the beneficiaries nor to ■ the plaintiff in error as agent for the beneficiaries.

In sending, these policies to the agent, the company wrote:

“We are inclosing this policy issued as applied for, together with assignment blanks as requested.”

Accompanying this form of assignment was the following:

“Notice: The rules of the company require that if a policy shall be assigned the assignment must be in writing and should be signed by the insured and previous assignee, if any, and the company shall not be required to nor tice such assignment until the duplicate thereof is filed in the home office of the company. The company will not assume any responsibility for the validity of an assignment. The acknowledgment should be made before a notary public and certified by him under his official seal. Both the original and duplicate of the assignment should be sent to the home office, one copy being retained by the company and the other returned.”

There is nothing in plaintiff in error’s testimony that would support his contention he held' the policies after their receipt as the agent for the beneficiaries, such testimony being:

“That he talked to Miss Rayburn, the secretary and general manager of the Producers’ Credit Company [the contemplated assignee of policies]. That he recognized her voice, being acquainted with her. That he notified her he had these policies, and that the policies would, be held until the receipt of the balance of the. policies which were being issued, and that all of the policies would be delivered at the same time, and she said that would be satisfactory. That after the policies were sent to him through the mail he received a communication from the company, in writing, with reference to returning the policies.”

The letter referred to stated:

“It seems that the three policies forwarded to you have not been delivered, and we ask that these policies be returned to the office. I give you below the policy numbers and names of the applicants,” etc.

After still another letter demanding the return of the policies, plaintiff in error wrote the company:

“I am just in receipt of a letter from Mr. Blair asking for return of three policies issued on my Llano business. I am unable to understand the meaning of this letter and also have not heard anything from you in answer to my letter regarding the issuance of the balance of the business. I have been waiting for this business to get issued so I could make a trip to Llano and make delivery of the business on one trip,” etc.

Still later he again wrote the company:

“I am holding the policies which have been issued, and the only reason I have not delivered the same is due to the fact that I have been waiting for you to issue the balance of the business so I could make delivery on one trip,” etc.

This testimony, in connection with that referred to by the Court of Civil Appeals, conclusively shows the three, policies had not been delivered to the beneficiaries nor to the agent for unconditional delivery to them.

But whether there had been an actual delivery or not, the agency contract, a copy of which was attached to the plaintiff’s petition, stipulated:

“That if the company shall return the premiums on a policy issued under this or any previous contract, the agent shall repay the company, on demand, the .amount of commissions received on the premiums so returned.”

This clearly contemplates that even after actual issuance and delivery of a policy, upon return by the company of the premium paid, it would thereupon be entitled to recover from the agent the amount of commissions he had received on the premiums so returned. This stipulation along with that quoted by the Court of Civil Appeals, to the effect “the company will not disclose the reason for declining an application,” authorizes the company to decline any application or to return the premiums upon any policy previously issued and delivered upon any reason deemed by it to be sufficient. We have carefully considered the evidence of the reasons which prompted the company to demand the return of the policies issued by it and to refuse to issue the others, and are' clearly of the opinion those reasons were sufficient, as .matter of law, to negative any contention that the action in this respect had been arbitrary and without cause or reason.

We therefore recommend that the judgment of the Court of Civil Appeals affirming the judgment of the trial .court be affirmed.

CURETON, C. J. Judgments of the district court and Court of Civil Appeals both affirmed, as.recommended by the Commission of Appeals.

•PIERSON, J., not sitting.
      <§=>Eor other eases see same topic and KEY-NUMBER to all Key-Numbered Digests and Indexes


author: MARTIN, J.

text:
    WHITE v. STATE.
    (No. 11419.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    1. Rape <⅜=>43(I) — 'Testimony showing mentally diseased condition of prosecutrix was admissible in prosecution for rape by force and without consent.
    In prosecution for rape by force and without female’s consent, testimony showing mentally diseased condition of prosecutrix was admissible.
    2. Witnesses <§=41 — Prosecutrix is incompetent as witness in rape prosecution, based on her mental incapacity to consent.
    In prosecution for rape under indictment charging that prosecutrix was so mentally diseased as to have no will to oppose act, prose-cutrix is incompetent as a witness against defendant.
    3. Rape <§=⅜>1 (6) — State, by introducing prose-cutrix as witness in prosecution for rape by force, vouches for her sanity.
    In prosecution for rape by force and without consent, state, by introducing prosecutrix as a witness, vouches for her sanity.
    4. Rape <§=351 (4) — Prosecutrix’s testimony held insufficient to sustain conviction of rape by force and without consent.
    Prosecutrix’s testimony held insufficient to sustain conviction for rape by force and without prosecutrix’s consent.
    Commissioners’ Decision.
    Appeal from District Court, Taylor County ; M. S. Long, Judge.
    D. M. White was convicted of rape by force without prosecutrix’s consent, and he appeals.
    Reversed and remanded.
    Kirby, King & Overshiner, Letcher D. King, and E. W. Wilson, all of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The first.count of the indictment charges appellant with the rape of Jewel Spain, “she being then and there so mentally diseased at the time of said carnal knowledge as to have no will to oppose said act of carnal knowledge, and the said D. M. White then and there knowing her to be so mentally diseased.” The second count charges rape by force and threats, and the third count charges rape by force without her consent. The first two counts of the indictment were dismissed, and the case was submitted on the third count.

The verdict of the jury found appellant guilty under the third count, and assessed his punishment at 15 years’ confinement in the penitentiary.

Complaint is made of the introduction of testimony showing the mentally diseased condition of prosecutrix. This was admissible under the circumstances of this case on the issue of rape by force and without consent. Segrest v. State (Tex. Or. App.) 57 S. W. 845; Baldwin v. State, 15 Tex. App. 275.

Prosecutrix was introduced as a witness by the state. If the case had been submitted under the first count of the indictment and under the evidence as produced by the state, she would have been incompetent as a witness against appellant. Lee v. State, 43 Tex. Or. R. 285, 64 S. W. 1047; Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987; Cokeley v. State, 87 Tex. Cr. R. 256, 220 S. W. 1099. Such count, however, was dropped, and, the trial being upon the count charging rape by force, her sanity was vouched for by the state, quoting:

“Is she a competent witness? The state said so. * * * When the prosecution introduced her as a witness, it said to the jury, ⅛ effect, that the witness was then sane, and was sane at the time when the events happened of which she is called upon to testify.” Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987.

With, this presumption of sanity obtaining, she testified to the immediate facts surrounding the alleged criminal act as follows:

Direct examination:

“You know what happened back there. He threw me down. He taken hold of me. He put his hands on me. He put his hands right here (indicating). Then he laid me down. I hollered. The defendant did that, you know what. I know what a man’s private parts are, what his male organs are. I know what my private parts are. He put his private parts into my private parts. It pained me, hurt me. I tried to keep him from doing it that night. I can’t holler very loud. I can’t holler any louder than that (indicating). * * * I did not tell him that he could do that to me. I tried to get away from him. He wouldn’t let me. He had hold of me on my arm. I tried to get away from him, and I couldn’t.

OrOjSS-examination:

“All the time he was doing this, I was doing nothing. I didn’t resist, I screamed. * * * When he pulled me in behind this lumber yard, I never done nothing; never said anything. I didn’t -resist, I just went in there. I know for sure whether this defendant’s male organ entered my female organs; it didn’t. If it had entered it, I would have been aware of the fact.”

Redirect examination:

“I have understood all that he has been asking me about. The defendant that night put his male organ into my female organ. I didn’t ask him to do that. I didn’t refuse to let him do that. When he started behind this lumber yard with me, I did not go willingly; he had hold of me; he never turned me loose. I told him I wanted to go home. I says, ‘Mr. White, let’s go home:’ He says, ‘No; stay here.’ He took me to the alley behind the lumber yard, and laid me down on the ground.”

Recross-examination:

“After he took me back there, I told him I didn’t want to do that, and that is all there was to it. He didn’t wrestle with me; he just got on me; I just laid down and he got on top of me. I didn’t make any outcry or attempt to get out from under him. I could have got out from under him if I had wanted to.”

The court charged the jury in part as follows:

“The force used must have been such as might reasonably be supposed sufficient to overcome all resistance within her power, taking into consideration the relative strength of the parties and other circumstances in the case.”

Mr. Branch lays down the rule as to the' forcee necessary in rape cases in the following language:

“Threats apart, every exertion in the power of the woman, under the circumstances, must be made to prevent the penetration of her person, or consent will be presumed.” Branch’s P. O. p. 998; Mooney v. State, 29 Tex. App. 257, 15 S. W. 724.

The definition of force given by the court in his charge and quoted above seems to have correctly stated the rule. Measured by this, is the testimony sufficient to sustain a conviction under the third count of the indictment? Her final testimony, after being twice examined by the state, answers the question:

“I just laid down, and he got on top of me. I didn’t make any outcry or attempt to get out from under him. I could have got out from under him if I had wanted to.”

Under her evidence and the plain terms of the law, we have no alternative except to reverse and remand this case upon the insufficiency of the evidence to sustain the third count of the indictment, and it is accordingly so ordered.

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.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LATTIMORE, J.

text:
    Ex parte GORE.
    (No. 11756.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    1. Statutes <®==5205 — Court should look to all parts of legislative act as originally enacted, even though separated by codifiers or subsequent Legislature.
    It is duty of court to look to all parts of a legislative act as originally enacted in order -to properly construe the law, even though codifiers or some subsequent Legislature should separate the different? sections of such act so that they appear in different parts of the statute.
    2. Pardon <⅜=>4 — Power to parole held solely within control of Governor, and not within control of courts (Code Cr. Proo. 1925, arts. 959, 962).
    Construing Code Or. Proc. 1925, arts. 959, 962, together and as originally enacted, held, that the power to parole, pardon, etc., is vested solely in the Governor, and is not within control of the courts.
    Original application for habeas corpus by Jack Gore for relief from confinement in the state penitentiary.
    Writ denied.
    Gates & Swanger, of Huntsville, for applicant.
    ■ A. A. ,Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

By an original application for habeas corpus applicant seeks relief from confinement in the state penitentiary where he is held hy virtue of a final conviction of a felony.

On June 15, 1927, applicant began serving a sentence of 1 year in the penitentiary. Attaching to his application for habeas corpus ■ a certificate of good conduct by the penitentiary authorities, he asserts that, under article' 6194 of the Revised Civil Statutes of 1925, he is entitled to 24 days’ commutation for good behavior. Said article appears to grant 2 days per month for good conduct off the first year of a penitentiary sentence. Applicant also insists that, under the terms of article 962, 1925 C. C. P., he is entitled to have this court declare him entitled to a parole, and states in this connection that he has submitted his application for parole to the Governor of Texas and the honorable board of pardon advisers, and that they have declined summarily and without reason or explanation to grant him the desired parole. He prays that this court grant him relief.

Article 962, supra, when considered alone, seems to direct the parole of any prisoner in our penitentiary, who so desires, 3 months before the expiration of his time of service, after deducting from the sentence all commutations for good’behavior. Mathematical computation makes plain the fact that if applicant is entitled to 2 days’ per month commutation for good behavior since June 15, 1927, and is also entitled to add to such commutation 90 days during which he is entitled to be paroled, he is now so entitled. Article 962 appears in our laws first in the Acts of the Thirty-Second Legislature, ch. 43, as part of section 3 of said chapter. Sections 1 and 2 of said chapter and act now appear in our statute as articles 959 and 960, respectively of our O. O. P. 1925. The last-mentioned two sections were parts of chapter 5, Acts of Hirst Called Session of Thirty-Third Legislature in 1913, which act was enacted to take the place of chapter 132, Acts Regular Session of Thirty-Third Legislature, which latter act was held violative of our Constitution in Ex parte Marshall, 72 Tex. Cr. R. 83, 161 S. W. 112. From the caption of said chapter 5 we learn that its purpose was to amend chapter 132 of the Acts of the Regular Session, supra. Section 2 of said chapter 5, supra, now article 959, C. C. P. 1925, reads as follows:

“Meritorious prisoners who may be in prison under a sentence to penal servitude may be allowed to go upon parole, outside of the building and. jurisdiction of the penitentiary authorities, subject to the provisions of this title,, and to such regulations and conditions as may be made hy the board of prison commissioners, with the approval of the Governor. Such parol shall he made only by the Governor, or with his approval.’’

It is perfectly manifest that it is the duty of this court to look to all parts of a legislative act as originally enacted in order to properly construe the law, even though cpdifiers or some subsequent Legislature should separate the different sections of such act so that they appear in different parts of our statute. It is plain that article 962 must be construed in connection with article 959 just quoted. In Ex parte Nelson, 84 Tex. Cr. R. 570, 209 S. W. 148, we substantially held in line with the declaration of said article 959, supra, that the power to parole, to pardon, etc., is one confided by our Constitution to the Governor of this state, over whose discretion in such matters this court has no control or right of review. To discuss the matter at length or attempt to cite authorities would be but putting ourselves to the useless task of explaining that which is already plain; that is, that the power to parole is not one within the control of this court, but is inherent in the office of Governor. It being admitted that an application for parole has been presented to the Governor and by him-refused, there appears no ground given by the statute to applicant for standing upon his application here.

The writ of habeas corpus will be denied.
      @5»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    THOMAS v. STATE.
    (No. 11172.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied March 28, 1928.
    1. Criminal law <©==> 1171(1) — Action of state’s attorney in tendering unidentified analysis of liquor held harmless, where testimony definitely established Intoxicating character of liquor.
    In prosecution for possession of intoxicating liquors for the purpose'of sale, wherein testimony sufficiently established possession of choc beer, and that it was intoxicating liquor, action of counsel for the state in tendering analysis or tendering paper, intimating that it was analysis without proper identification, during argument of defendant’s counsel that state had not analyzed liquor, held harmless, though state’s counsel was unwarranted in doing so.
    I
    On Motion for Rehearing. 1
    2. Criminal law 1165(1)— Appellate court where evidence is plain and lowest penalty inflicted, will not reverse for matters only ere--ating prejudice.
    When the evidence, is plain and violation of law is made out and the lowest penalty, inflicted, appellate court will not reverse for matters whose only effect could be tp create prejudice in minds of jury against accused.
    Appeal from District Court, Grayson Coun-’ ty; F. E. Wilcox, Judge.
    Charley Thomas was convicted of the possession of intoxicating liquor for the purpose. of sale, and he appeals.
    Affirmed.

      Jas. D. Buster, of Sherman, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ' MORROW, P. J.

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

Roberts, an officer, testified that, possessed of a search warrant, he searched the premises of the appellant and found about a gallon of what was called “choc beer” in his house, and between 20 and 25 gallons of “choc beer” in a shed just back of the house; that he tasted the “choc beer” in each of the places and that it was intoxicating liquor. He said:

“I don’t know just what per cent, of alcohol it did hare in it. I did not have it analyzed. * * * I do not know how much alcohol it had in it, but a pretty, good per cent, though.”

When the witness said he did not have it analyzed, he added', “I do not know whether that was the occasion or not, but I carried it up to Mr. Brouss; I believe I did.” The state’s attorney then said, “Here is the analysis.” Counsel for the defendant objected to the analysis until somebody came and identified it. The objection was sustained. '

Counsel for the defense, in his argument to the jury, said:

“Why didn’t the state have this choc analyzed, if it had any alcohol in it? They ought not to ask a jury to guess a man in the penitentiary.”

Thereupon state’s attorney said, “If you want the .analysis, here it is.” The court instructed the jury not to consider the remarks ©f the county attorney. Other like exchanges of comments by the opposing counsel were made, and instructions to disregard those of the prosecution were given to the jury.

Under the facts, counsel for the state was not warranted in interrupting the remarks of appellant’s counsel by tendering the analysis or tendering the paper which intimated that it was the analysis. The court properly sustained the objection to the document because there was no proof that it was the analysis. However, in view of the record, we fail to perceive the possibility of harm to . the appellant from the procedure. There was but one witness who testified, and his testimony was definite that he had tasted the liquid which was found upon the appellant’s premises; that it was what was known as “choc beer” and was intoxicating liquor. This was not controverted by any testimony. There was no effort to impeach the state’s witness, and no testimony was offered by the appellant. In that state of the record, it seems manifest that there could have been no more favorable verdict to the appellant upon the undisputed facts.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In passing on the contentions made by appellant, it must be borne in mind that the accused was given the lowest penalty, and that no testimony was before the jury save that of the one state witness, who testified positively to the fact that he found in appellant’s possession a large quantity of choc beer, that he drank some of it, and that it was intoxicating liquor. In view of these facts, we are unable to conclude that the conduct of the district attorney, either in what was done during the introduction of evidence or in the argument, even if deemed by the trial court to be of such nature as to call for an instruction to the jury not to consider it, should call for reversal. When the evidence is plain and a violation of the law is made out, and the' lowest penalty inflicted, we do not reverse for matters whose only effect could be to create prejudice in the minds of the jury against the accused.

The motion for rehearing will be overruled.
      ©~>For other eases see same topic and KEY-NU1 BER in all Key-Numbered Digests and Indexes


author: LATTIMORE, J. HAWKINS, J.

text:
    GOODEN v. STATE.
    (No. 11433.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    Rehearing Denied April 4, 1928.
    1. Criminal law <&=sl091(4) — Bill of exceptions to testimony, not setting out ground of objection thereto, held without merit.
    Bill of exceptions to testimony of witness concerning alteration of instrument, not setting out ground of exception to testimony, held without merit.
    2. Criminal law <⅜^1120(8) — Bill of exceptions held not to show testimony violated immunity arising from arrest, where no act of defendant, testimony of which might be objectionable, was set out.
    Bill of exceptions to testimony of witness relating to officer’s requesting defendant for alleged forged check, and turning over of check to officer by defendant, charged with attempting to pass forged instrument, reciting that testimony was objected to on ground that defendant was under arrest, did not show violation of right to immunity arising from arrest, where bill set out no conversation or act of defendant, testimony of which might be objectionable.
    3. Forgery <©=344(1/2) — Evidence held to sup-' port conviction for attempting to pass forged check.
    Conviction for attempting to pass forged instrument held sustained by evidence showing defendant approached prosecuting witness with $7,000 check, which he claimed to be his property, which he attempted to pass to witness, and which check was shown to be forged.

      On Motion for Rehearing.
    4. Criminal law <§==»1 028 — Court of Criminal Appeals can consider only questions which were before trial court.
    The Court of Criminal Appeals is a reviewing court only, and can only consider such questions as were before trial court.
    5. Criminal law 1139 — Affidavits showing defendant was not at place of crime, filed originally in Court of Criminal Appeals after trial and perfection of appeal, cannot be considered on appeal.
    Affidavits showing defendant was not at place of alleged crime on date charged, obtained and filed in Court of Criminal Appeals originally, after trial and after appeal was perfected, cannot be considered by Court of Criminal Appeals, though affidavits would have been pertinent on motion for new trial based on newly discovered evidence,' if filed in trial court.
    Appeal from District Court, Bexar County ; C. J. Matthews, Special Judge.
    Jack Gooden, alias Edward E. Atkinson, was convicted of attempting to pass a forged instrument, and he appeals.
    Affirmed.
    E. B. Simmons, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for attempt to pass a forged instrument; punishment, two years in the penitentiary.

Considering both the original and the supplemental transcripts, there appear hut two bills of exception. The first sets up appellant’s objection to the testimony of witness Hart, who was shown to be an assistant cashier of a bank with many years’ experience in that position, and who testified that his opinion of an instrument in writing shown him was that in same there had. originally been written the figure “3,” but that same had been changed to the figure “2.” The bill of exceptions does not even set out the ground of appellant’s objection. The bill is manifestly without merit. The other bill sets out the fact that witness Harris was with the prosecuting witness on a street in San Antonio, and they were looking for a man whp had tried to pass to the prosecuting witness a $7,000 check. Appellant was seen and recognized and approached by said parties. Prosecuting witness had a conversation with appellant, and the officer asked appellant for the check, which he had in his possession, and appellant turned same over to the officer. It is stated in the bill that this testimony was objected to on the ground that defendant was under arrest. We perceive nothing in the testimony in any w¡ay violative of the right of immunity arising from the arrest of the party. The bill sets out no conversation, and no act of appellant, testimony of which might be objectionable under the rule mentioned.

We have carefully examined the facts, and do not deem it necessary to discuss same, further than to say that they support the conclusion that appellant approached the prosecuting witness with a $7,000 check, which he claimed to be his property, and which he attempted to pass to the witness, and which check was shown to be forged.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant says in his motion that the indictment averred the date of the offense to have been March 21, 1927, whereas the proof showed it to have been committed on March 16,1927. He states that he could have proved that he was in Corpus Christi on the 16th day of March, and not in San Antonio, and hence could not have committed the offense in the latter city on the date claimed. He attaches to his motion affidavits from parties in Corpus Christi supporting this averment, and asks this court to consider them. We have many times stated that this is a reviewing court only, and can only consider such questions as were before the trial court. The affidavits referred to have no place in the record. They would have been pertinent on motion for new trial based on newly discovered evidence, if filed in the trial court, provided accused 'could have brought himself within the principles applying to newly discovered evidence; -but this court cannot consider them, when they are obtained and filed in this court originally long after the trial was had, and after appeal was perfected.

The motion is overruled.
      ®s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J. DATTIMORE, J.

text:
    HUBBARD v. STATE.
    (No. 11388.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied April 4, 1928.
    I. Criminal law 171 (3)— District attorney’s remarks in argument regarding period of time between issue of alias capias not in evidence and accused’s árrest held not reversible error.
    In liquor prosecution, in which defendant’s counsel had argued that another had been convicted of same offense with which accused was charged, but that accused had not been tried for more than year after the other party’s conviction, district attorney’s remarks c.alling attention to fact that indictment was filed in December, 1925, but that alias capias showed' he had not been arrested until January, 192T, where alias capias was not in evidence, held '-not reversible error, where judge instructed jury to consider nothing but facts in evidence, and accused’s guilt appeared plain, and minimum penalty was awarded.
    On Motion for Rehearing.
    2. Intoxicating liquors @=>236(20) — Evidence held sufficient to sustain conviction for transporting liquor.
    In prosecution for transporting intoxicating liquor, evidence held sufficient to sustain conviction.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Jimmie Hubbard was convicted of transporting intoxicating liquor, and be appeals. Affirmed.
    Dickens & Dickens, of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

The evidence produced by the state, we think, shows appellant’s guilt beyond question. He did not testify, and called no witness to combat the incriminating facts proven against him. This statement disposes of bills of exception 1 and 2, which challenge in different ways the sufficiency of the evidence. As qualified, bill of exception No. 3 shows no error.

Appellant objected to the argument of the district attorney wherein, he called attention to the fact that the indictment against appellant had been filed in December, 1925, but that an alias capias showed that he had not been arrested until January, 1927; the objection being that the alias capias was not in evidence, and that the remarks of the district attorney was an insinuation that appellant had been “dodging arrest.” In approving the bill, the learned trial judge explained that appellant’s counsel had argued that one Wade had been convicted of the same offense with which appellant was charged, but that appellant had not been tried for more than a year after .Wade’s conviction, and commented upon the “strange procedure.” It was in reply to such argument that the district attorney alluded to the alias capias. The learned trial judge further certifies that he instructed the jury that they were to consider nothing but the facts in evidence. Conceding that the district attorney should not have referred 'to a return on the alias capias — it not having been introduced in evidence — still we cannot regard the circumstance as calling for a reversal. Appellant's guilt appears plain, and the minimum penalty only was awarded. -Hence injury resulting from the incident .seems unlikely.

- The court was not in error in refusing a special charge on accomplice testimony. The evidence does not appear to raise such an issue, especially in view of article 670, P. C.

The judgment is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

Responding to appellant’s courteous motion for rehearing, we have again examined the record with a view of determining the sufficiency of the testimony .to show appellant guilty of transporting intoxicating liquor. The state witness testified positively that appellant came to her house at night with a grip which he asked to leave there for a while. The next morning witness looked in the grip, and it contained whisky. During the day appellant came and removed part of the liquor, and later he removed it all. It will thus be seen that he was guilty of transporting both ways.

Being unable to agree with the proposition that the evidence does not support the verdict, the motion for rehearing will be overruled.
      <§^oFor other cases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes


author: CHRISTIAN, J.

text:
    SMITH v. STATE.
    (No. 11526.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    1. Homicide <§=>250 — Evidence held to support conviction for murder.
    In prosecution for murder, evidence showing that defendant, after being arrested by sheriff and deputy sheriff, killed both officers as he was being taken to town, held sufficient to support conviction.
    2. Criminal law <§=>1086(14), 1090(1) — Only sufficiency of evidence is reviewable on appeal from conviction, in absence from record of bills of exception, or exceptions to court’s charge.
    Where, on appeal from conviction for murder, there were no exceptions to court’s charge, and no bill of exceptions appeared in record, only question for determination was sufficiency of evidence.
    Commissioners’ Decision.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Bill Smith, alias Roy Miller, alias Joyce Sheppard, was convicted of murder, and he appeals.
    Affirmed.
    Roy Formway, of Roby, and Brandon Shap-ard, of Anson, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death. This case was tried in Jones county on a change of venue from Fisher county.

Appellant had been arrested by Bob Smith, sheriff of Fisher county, and Jake Owens, deputy sheriff of said county. After the arrest, they were proceeding in an automobile to town. The sheriff was driving the car, and Lloyd Conatser, who had been in appellant’s home at the time the arrest was effected, was riding on the front seat with the sheriff. Appellant was on the left-hand side on the rear seat, and on the same seat with him on his right was Jake Owens, the deputy sheriff. The state’s testimony shows that while the parties were driving along the road appellant shot the sheriff in the back with a pistol. Whereupon a scuffle ensued between appellant, Conatser, and Owens. Dtfring the scuffle two shots were fired,. After these shots were fired, Owens got out of the car and started around in front of the car. Appellant got out behind him and shot him in the back. The sheriff and deputy were almost instantly killed. After the shooting, Conatser and appellant returned to appellant’s home, secured appellant’s car, and with their wives fled. Appellant was arrested in Kentucky and returned to Texas. The present conviction was for the murder of Jake Owens.

Appellant contended that when he killed Owens he believed his life was in danger.

There were no exceptions to the court’s charge, and no bills of exception appear in the record. The only question for the determination of this court is the sufficiency of the evidence. The evidence is amply sufficient to support the verdict and the judgment rendered thereon.

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.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FLORES v. STATE.
    (No. 11369.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    Rehearing Denied March 28, 1928.
    I.Homicide <3=332 — That act, providing saving clause for amendatory act, became effective before amendatory act, did not result in repeal of former when latter became effective (Acts 40th Leg. [1927] c. 274, § 3a; Acts 40th Leg. 1st Called Sess. [1927] c. 8).
    Where Legislature, after enactment of Acts 49th Leg. (1927) c. 274, abolishing offense of manslaughter, and before such amendment became effective, passed emergency act amending section 3a to take place of saving clause Act June 9, 1927 (Acts 40th Leg. 1st Called Sess. [1927], c. 8), saving clause so enacted was not repealed by original amendment at time it took effect, though effective date of original amendment was subsequent to that of the additional act.
    2. Statutes <3=5 — Legislature, having omitted saving clause from amendatory act, had authority to pass as emergency measure further amendatory act during special session (Acts 40th Leg. [1927] c. 274, § 3a; Acts 40th Leg. 1st Called Sess. [1927] c. 8).
    Legislature, after passing amendment which abolished offense of manslaughter (Acts 40th Leg. [1927] c. 274), had power to pass an act amending section 3a at subsequently called special session, which act approved June 9, 1927 (Acts 40th Leg. 1st Called Sess. [1927] c. 8), provided saving clause, and to pass such act as an emergency measure, though by so doing it became effective before original amendatory act, and, under such circumstances, both acts were considered in determining status of offenses committed prior to passage of original amendment.
    3. Homicide <3=32 — Conviction for manslaughter on June 10, 1927, held sustained, notwithstanding act abolishing offense of manslaughter, in' view of amendment (Pen. Code 1925, art. 14; Acts 40th Leg. [1927] c. 274, § 3a).
    Conviction for manslaughter on June 10, 1927, held sustained under Pen. Code 1925, art. 14, notwithstanding Acts 40th Leg. (1927), c. 274, which abolished offense of manslaughter and became effective on June 15, in view of Act of June 9, 1927 (Acts 40th Leg. 1st Called Sess. [1927], c. 8), amending section 3a to exclude offenses committed prior to the taking effect of the amendment.
    On Motion for Rehearing.
    4. Statutes <3=129 — Legislature may amend Its own laws, passed at same or previous session.
    Legislature has right and power to amend its own acts in their passage from the introduction of the bill to its final passage, and may change laws passed at the same or any previous session, as well as those passed by prior Legislature.
    Appeal from District Court, Bexar County; W. W. McCrory, Judge.
    Miguel Flores was convicted of manslaughter, and he appeals.
    Affirmed.
    Hogan & Matthews and Dave Watson, all of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manslaughter ; punishment, five years in the penitentiary.

Against the correctness and justness of the conviction and th.e punishment therefor, appellant makes but one point. He,was put on trial June 6, 1927, for murder alleged to have been committed in November, 1925, arid on June 10th was convicted of manslaughter. On June 24th he filed a motion in arrest of judgment, setting up that by the Act of the Fortieth Legislature (chapter 274, Acts Regular Session) the offense of manslaughter -was abolished, which act became effective 90 days after the adjournment of the Legislature, or on June 15, 1927. Further it is claimed that said act had no saving clause relating to cases of manslaughter theretofore committed, whether pending in the trial courts or appellate courts. He also set up that the first called session of said Legislature was convened on May 9, 1927, and that same attempted to enact a law amending section 3a of said chapter 274, supra, so as to provide that no offense committed prior to the taking effect of said chapter 274 should be affected by the provisions of said chapter, but that in such case the offender should be proceeded against and punished under the law as it existed before the taking effect of said chapter. This act (Acts 40th Leg. [1st Galled Sess.] c. 8) amending said section 3a, was approved June 9, 1927, and, having passed with the emergency clause and a sufficient vote, became effective as of that date. Against the effectiveness of the amending act of the special session, for the purpose intended, it is urged that in some way, because the amending act was made to take effect prior to the time of the taking effect of said chapter 274, of which the amending act was an amendment, that the subsequent taking effect of said chapter 274 on June 15th operated to repeal the amending act, as well as the old law on the subject of manslaughter. We are cited to no authorities so holding, and find ourselves unable to follow the involved reasoning offered in support of appellant’s contention.

Chapter 274, supra, after its final passage by the Legislature and its approval by the Governor, might have been amended or repealed during the same sitting of the Legislature which passed it, and we think the argument—that the change made in said chapter by the amending act of the special session was beyond the powers of the lawmakers—has no support in precedent, reason, or authority. We are of opinion that, when chapter 274, supra, became effective June 15, 1927, the act of the special session amending section 3a became a part of the amended law of murder by which the offense of manslaughter was repealed and that the law so passed did not affect offenses theretofore committed against the old law.

At the time appellant was convicted on June 10, 1927, the amendment of the special session had been approved and was effective as such amendment. When the; motion for new trial was acted upon, and appellant was seh-tenced on June 24, 1927, chapter 274 as amended had become effective and was the law.

We find nothing in the record leading us to conclude that the trial, judgment, and sentence of appellant were not regular, and, no error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant predicates his motion for rehearing on two propositions: First, that the Acts of the Regular Session of the Fortieth Legislature expressly abolished the offense of manslaughter. Said act became effective after this conviction, and therefore this proceeding would have to be dismissed. Second, that the Acts of the Special Session of the Fortieth Legislature, amending the acts of the regular session relative to murder, did not revive the offense of manslaughter, and same therefore no longer exists upon our statutes.

There seems no question as to the proposition that the offense of manslaughter no longer exists under our statutes. It might also be conceded that, unless the Legislature correctly inserted a saving clause in the act abolishing manslaughter, then under all the authorities, and under the provisions of article 14, P. G. 1925, this conviction would have to be reversed, and the proceedings dismissed.

It seems trite to say that the Legislature has the right and power to amend its own acts in their passage from the introduction of the bill to its final passage. It need not be debated that the Legislature may amend and change its own laws passed at any session, either at that or any subsequent session. It is equally true that one Legislature may amend or change the acts of a prior Legislature.

The law relative to murder, as passed by chapter 274 of the Regular Session of the Fortieth Legislature, did not contain any saving clause by which parties who had theretofore been guilty of the offense of manslaughter, or who might be guilty of such offense subsequent to the passage of the bill but before its taking effect as a law, might be proceeded against. After the passage of the bill and the adjournment of the Legislature, this defect was apparently discovered and in a special session of the Legislature an amendatory act was passed in entire accordance with the mandates of our Constitution in reference to such matters. Chapter 274, Acts of the Regular Session of the Fortieth Legislature, was amended by chapter 8 of the Special Session, and the amenda-tory act manifests no effort to amend any section or part of the law by reference to its title only, but section 3a of chapter 274 was specifically amended by the insertion of a saving clause, the amended section 3a being set out fully in chapter 8, and we observe no reason whatever for appellant’s complaint thereat. He cites the case- of Hazelrigg v. Hazelrigg, 169 Ky. 345, 183 S. W. 933, but same seems entirely inapplicable. We quote from the opinion in that case:

“The act of 1914 [chapter 20] states in its title and in the body of the act that its pur-' pose is-to amend and re-enact sections 1833 to 1851, inclusive, of the Statutes [Ky. St. 1909], but it does not re-enact or publish at length the law it seeks to amend, except in subsection one which amends section 1849 of the statutes. It results, therefore, if said act is, in fact, an amendment of the existing law, as it says it is, that the Legislature, in the enactment of this act, except in subsection 1, entirely disregarded the plain provisions of this section of the Constitution.”

Plainly an act purposing to amend eighteen sections of a former law, which actually set out at length only one of said eighteen sections, would be deemed definitely violative of the Constitution which requires the amenda-tory act to republish and set out in full the proposed amendments. We see no sort of reason for discussing the proposition again advanced, that, because the amendatory act took effect before the taking effect of chapter 274, supra, of which it was an amendment, when chapter 274 did take , effect, it repealed the amendatory act. We get nothing out of such proposition. It is clear that section 3a was properly amended, and, by reason of such amendment, became a part of the original chapter 274, and that, when chapter 274 became effective, amended section 3a was a part thereof. This law took out of our statutes the offense of manslaughter, but did so with the saving clause, which makes appellant’s contention without merit. His offense was committed before the taking effect of said general law. He was and will be correctly proceeded against as under the old law.

The motion for rehearing is overruled.
      <3=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MARTIN, J. LATTIMORE, J. MARTIN, J.

text:
    WEBB v. STATE.
    (No. 11393.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied April 4, 1928.
    Appellant’s Application for Leave to File Second Motion for Rehearing.
    On Motion for Rehearing.
    Í. Criminal law <©=>! 092 (8)— Merely turning over bills of exception to judge and attempting to make him appellant’s agent for filing thereof is not required diligence.
    Appellant’s merely turning over to judge the bills of exception and attempting to make him the agent of appellant for filing them is not such diligence in following up such bills as is required by those interested in having them filed.
    2. Criminal law @=31092(8) — Evidence held not to show sufficient diligence to excuse defendant’s failure to file bills of exception within time allowed.
    Affidavits presented on motion for rehearing, together with original bills accompanying motion, held not to show sufficient diligence to excuse defendant’s failure to file bills of exception within time allowed, since affidavits set forth no reason for not presenting bills earlier, and no effort to obtain from trial court an additional extension of time for filing was shown.
    Commissioners’ Decision.
    .Appeal from District Court, Potter County ; Henry S. Bishop, Judge.
    O. W. Webb was convicted of robbery with firearms, and he appeals.
    Affirmed.
    J. W. Culwell and Works & Bassett, all of Amarillo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, robbery with firearms ;' penalty, ten years in the penitentiary.

None of appellant’s bills of exception were filed within the time provided by law, and no question is presented for review except the sufficiency of the evidence. This, in our opinion, being sufficient to support the verdict of the jury, 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.

On Motion for Rehearing.

LATTIMORE, J.

Effort is made in connection with appellant’s motion to show excusing cause for failure to have his bills of exception filed within time. We have considered the affidavits appended to the motion, viz., of the trial judge, the district clerk, and counsel for the appellant, together with the original bills which also accompany the motion, but regret that we are unable to conclude same show cause sufficient to excuse said failure. The motion for new trjjal was overruled July 2d and an order made allowing 80 days from said date in which to file bills of exception, which time expired September 20th. The bills were filed October 1st, ten days too late. The clerk’s affidavit attached to this motion shows that he filed the bills the day they were brought to him, but he does not remember who brought same. The affidavit of the judge shows that he has no independent recollection of when said bills were presented to him, nor when same were approved, nor to whom he delivered them after approval. Appellant’s attorney makes affidavit that he delivered said bills to the court on September 14th, and that only twice thereafter (date not given)'did he speak to the court about them, on each of which occasions the court told him he had not approved them but would do so and' file them with the clerk. The bills of exception appear to have been approved oh September 15th; in fact, the original bills considered with the affidavits accompanying the motion ^present a strange situation. Examination of said bills shows that four of them were approved on September 30th, and one on September 27th, the entry of such approval being in ink and in the handwriting of the trial judge. At some time, evidently after the entry of these dates, same were canceled by the drawing of lines through said dates, and the figure 15 was written in as the date of the approval. If in fact these bills were approved on the dates originally appearing; it would plainly manifest negligence on the part of appellant as having failed to follow up his bills and see that they were approved. We cannot understand or sanction such practice as the changes made in these bills indicate. If the bills were in fact approved on September 15th by the trial court, it would be inexcusable and neglect on the part of appellant to permit them to lie in the office of the trial judge for 16 days thereafter, before filing. Bills of exception under all our authorities must be followed up by those interested in having them filed. Merely turning them over to the judge and attempting, to make him the agent of appellant for such filing is not diligence. Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; Sullivan v. State, 62 Tex. Cr. R. 410, 137 S. W. 700; Chavario v. State, 72 Tex. Cr. R. 240, 161 S. W. 972; Gowan v. State, 73 Tex. Cr. R. 222, 164 S. W. 6; Sorrell V. State, 79 Tex. Cr. R. 437, 186 S. W. 344. No excuse or reason appears for not presenting the bills to the trial court sooner. Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215, 23 A. L. R. 1374. The attorney for accused has no right to attempt to make another his agent and' excuse himself for the negligence of such other. Riley v. State, 95 Tex. Cr. R. 539, 255 S. W. 179. As to the strictness of the diligence demanded, see Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902. No effort is shown to obtain from this court an additional extension of time. Wilson v. State, 98 Tex. Cr. R. 319, 265 S. W. 697; Kennedy v. State, 99 Tex. Cr. R. 167, 268 S. W. 959.

Being of the opinion that the record fails to show diligence sufficient to excuse the failure to filé said bills of exception within the time allowed, the motion for rehearing will be overruled.

On Appellant’s Application for Leave to File Second Motion for Rehearing.

MARTIN, J.

We have carefully examined appellant’s motion for leave to file second motion for rehearing. All questions raised have been fully discussed, and we think correctly disposed of, in the opinion by Justice Lattimore on original motion for rehearing.

Appellant’s said application is therefore denied.

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.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMAS v. STATE.
    (No. 11337.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    ■Criminal law <@==>736(2) — When state’s evidence . justifies admissibility of confession, voluntary character of which is put in issue, such issue is for jury.
    When evidence for state makes out clear predicate justifying admissibility of confession, and voluntary character of confession is put in issue by testimony introduced by defendant, issue of fact is raised which proper practice requires to submit to jury.
    Appeal from District Court, Live Oak County; T. M. Cox, Judge.
    Garrett Thomas was convicted.of murder, and he appeals.
    Affirmed.
    Neil E.. Beaton, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder punishment, death.

The facts of this case are of such nature as to make them revolting in the extreme. Appellant, a negro, was permitted to spend the-night at the home of deceased, whose family consisted of himself and a 14 year -old daughter. At some time during the night deceased, was struck on the head, receiving a blow that fractured the skull and. penetrated the-brain and caused death before morning.. The girl affirmed the facts of the presence of appellant, who came to the home of her father and herself in the nighttime; that her father instructed her to give appellant his supper, and invited him to remain on the premises for the night; that during the night she was awakened by the strange conduct of her father,' who was rolling and tossing in his bed, moaning and groaning and carrying, on; that the appellant took her to his bed. and got upon-her and attempted to have intercourse with her; that appellant admitted to her that he had struck her father with an-, axe.

There is but one bill of exceptions in the ¡record, objection to the consideration of which appears; but in view of the fact that this is a death penalty case, we have considered said bill. Same relates to the admissibility of appellant’s confession. The confession was introduced by the state. The predicate for its introduction seems to have-been in entire conformity with the statute. It was shown that appellant was warned in accordance with the statute, and that he-made and signed said written confession, which was introduced. Appellant introduced' a witness whose testimony raised the. issue.of the voluntary character of such confession. In this condition, of the record the-learned trial judge correctly submitted the-issue of the voluntary character of the confession to the jury in a charge very favorable to appellant and seeming to cover every possible phase of the law applicable, and presents same in such manner as that no exception is addressed thereto. In addition to this, the court further instructed the jury that in case they concluded the confession to have not been voluntarily made, then they should consider this a case of circumstantial evidence, etc. We regard this as an instruction very favorable to the accused, and one not demanded in view of the other testimony. It may be regarded as well settled that when the evidence for the state makes out a clear predicate justifying the admissibility of a confession, and the voluntary character of the confession is put in issue by testimony introduced by the defendant, an issue of fact is thus raised, and in such case the authorities in this state seem uniformly to hold that the proper practice is to submit the issue to the jury. This was done in' the instant case. No other questions are raised. The facts seem to entirely justify the infliction of the extreme penalty.

Finding no error in the record, the judgment will be affirmed.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHRYAR v. STATE.
    (No. 11376.)
    Court of Criminal Appeals of Texas.
    March 21, 1928.
    1. Homicide <⅜=>169(1) — Asking accused in murder case if his son had not forbidden him to beat his wife held not objectionable, as permitting district attorney to give testimony.
    In prosecution for- murder, in which state’s theory was that accused killed deceased in the dark, believing him to be accused’s son, permitting district attorney to ask accused if his son had not prohibited him from beating accused’s wife held not improper, as against objection that district attorney was giving testimony. .
    2. Criminal law <3=721 ½ (I)— State may comment on accused’s failure to produce his wife as witness if she apparently should know facts favorable to him.
    It is,the general rule that when it appears from evidence that accused’s wife knows facts which, if true, would be to his interest, the state may comment in argument on failure of accused to produce his wife as a witness.
    3. Criminal law <3=706 — District attorney’s action in tendering to accused his wife as witness in murder case held not reversible error.
    In prosecution for murder, in which accused testified that he killed deceased because he had improper relations with accused’s wife, and witness for defense, who had testified, on issue whether accused and his wife were living together, that shortly before homicide he had seen accused in rooming house with a woman whom accused claimed was his wife, identified accused’s wife as the woman he saw, held that action of district attorney in thereafter tendering to accused his wife as a witness, though not to be commended, was not reversible error.
    Í. Criminal law <©=»1111 (3) — -Under court’s qualification- of bill, held permitting accused’s ten year old daughter to testify against him over objection that she was not qualified was, not error.
    Action of court in permitting ten year old daughter of accused to testify against him in murder prosecution held not error, as against objection that witness was not qualified on account of her age, where court’s qualification of' accused’s bill showed that witness was qualified.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Moses Chryar was convicted of murder, and he appeals.
    Affirmed.
    J. A. Collier, of Houston, for appellant.
    Horace Soule, Crim. Dist. Atty., and Nat H. Davis, Asst. Crim. Dist. Atty., both of Houston, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, death.

According to the state’s testimony, appellant was standing on the sidewalk in the dark when deceased, Walter Taylor, came down the street. Without warning appellant shot deceased. Deceased ran a few steps and fell. Appellant followed him and shot him while he was lying in the street. Appellant’s son was about the size of and resembled deceased, and on the occasion of the homicide wore clothing similar to that worn by deceased. It was the state’s theory that appellant attempted to kill his son because, of domestic troubles which he (appellant) believed his son had brought about, and that on the occasion of the homicide he thought deceased was his son. Evidence in support of such theory was introduced by the state. Appellant testified that he killed deceased because he had had improper relations with' his (appellant’s) wife.

There were no objections to the court’s, charge. Five bills of exception are brought forward.

Bill of exception No. 1 is concerned with appellant’s contention that the court erred in permitting the district attorney to ask appellant if his son had not prohibited him from beating his (appellant’s) wife. The ground of objection was that the district attorney was giving testimony. As far as the bill of exception is concerned, no facts are stated therein which would negative the propriety of the question. The bill merely contains the question, the negative answer given by appellant, and the ground of objection. In view of the fact that the extreme penalty was assessed we have consulted the statement of facts to determine whether error was committed in permitting the district attorney to ask the question complained of. We are of the opinion that under the facts the question complained of was proper as against the objection made. If the conduct of appellant’s son had been such as to create in appellant’s mind ill will and hatred toward him, the interference of his son with the mistreatment by appellant of his (appellant’s) wife would have 'supported the state’s theory that appellant intended to hill his son 'át the time he shot deceased. Hence testimony to such effect would have had material bearing on the appellant’s state of mind at the time the homicide was committed.

By bill of exception No. 2 appellant complains of the action of the district attorney in tendering to him his wife as a witness. It was an issue as to whether appellant arid his wife were living together. Á defense witness testified that she had seen appellant shortly before the homicide ⅜, a-, rooming house with a woman whom appel-’ 1-ant claimed was his wife. Appellant’s wife, being under process, was at this juncture brought into the courtroom by state’s counsel for the purpose of being identified by the witness. After having been identified by the witness, state’s counsel tendered to appellant his wife as a witness. It was appellant’s theory that he killed the deceased because of improper relations with appellant’s wife, and in support of such theory he testified in effect that his wife had advised'him that she and deceased were having illicit relations. It is. thus seen that appellant’s wife was in the position to support his contention that'!he killed deceased because of the fact that he had alienated 'his wife’s affections and engaged in reprehensible conduct where she was concerned. It is the general rule that when it appears from the evidence that the wife of the accused knows facts which, if true, would be to his interest, the state may comment in argument on the failure of the accused' to produce his wife as a witness. Cole v. State, 92 Tex. Cr. R. 368, 243 S. W. 1100, and authorities cited; Coffey v. State, 60 Tex. Cr. R. 73, 131. S. W. 216; Branch’s Annotated Penal Code, § 372, and authorities • cited. In the case of Cole v. State, supra, and Norwood v. State, 80 Tex. Cr. R. 563, 192 S. W. 248, exceptions to the rule last stated were noted. The facts of the instant case, however, are not within the exceptions announced in said cases. In Coffey v. State, supra, in passing on the question under consideration here, the court was confronted, with a similar state.of facts. While under cross-examination the appellant in that case stated that he thought he could prove certain facts by his wife which were favorable to him. The state thereupon tendered to him his wife as a witness. íhis court, speaking through Judge Ramsey, said it found no reversible error in the action of the state and referred to the fact that it was well settled that argument and allusion can be made ,to the failure of the accused to use his wife as a witness. In the case of Holland V. State, 60 Tex. Cr. R. 117, 131 S. W. 563, the question opw under consideration was discussed by Judge 'McCord, and the action of the district attorney in tendering to the accused his wife as a witness was held under the facts of the case not to constitute reversible error. However, -it was stated in the opinion that the 'conduct of the district attorney in the respect 'mentioned was improper and ill-, advised. In the case of Moore v. State, 45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 489, 108 Am. St. Rep. 952, 2 Ann. Cas. 878, ' the court held that the action of the district attorney in placing the accused’s wife on the witness stand and asking her questions proving or tending to prove that the accused had married her for the purpose of suppressing her testimony was prejudicial error, in that it forced the accused to object to his wife testifying against him and aided the theory of the state that the accused had married the witness for the purpose of suppressing her testimony. In Coffey v. State, supra, in drawing a distinction between the facts of the Moore Case and those then under consideration, Judge Ramsey said:

“But in that case counsel for the state went further, and not only placed Mrs. Moore upon the witness stand, but in the presence of the jury asked her certain questions concerning' the facts of the case, with the result that Moore felt impelled and called upon to object to her testifying, and the proof went much further than merely showing that Moore’s wife was present and able to give testimony, if desired, but manifestly, while not in terms so stated, the court must have held that the facts in the Moore Case [45 Tex. Cr. R. 234, 75 S. W. 497, 67 L. R. A. 489, 108 Am. St. Rep. 952, 2 Ann. Cas. 878] were in legal effect a use of the wife against the husband as a witness.”

We are of the opinion that the action of the district attorney in tendering .appellant’s wife to him as a witness was not to be commended. However, the case of Coffey, supra, is direct authority for our holding in the instant case that such action on the part of state’s counsel did not constitute reversible error. Under {he facts of the case at bar we are unable to reach the conclusion that the tender of the wife of appellant to him as a witness could have been more harmful than allusion in argument by the state’s counsel to.his failure to use her as a witness.

By bill of exception No. 3 appellant complains of the action of the court in permitting his ten year old daughter to testify against bim. The court’s qualification of appellant’s bill shows that the witness was thoroughly qualified. Hence, against the objection that the witness was not qualified on account of her age, the bill fails to manifest error.

Bills of exception Nos. 4 and 5 complain of the argument of the district attorney. We are unable to agree with appellant that said bills as qualified manifest reversible error.

Finding no error warranting a reversal, 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.