author: McClendon, o. j.

text:
    EQUITABLE CASUALTY & SURETY CO. v. NOWLIN.
    No. 7556.
    Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1931.
    Rehearing Denied March 11, 1931.
    H. B. Sanders, of Dallas, for appellant.
    W. H. Nunn, Sam Burnap, and Wilcox & Graves, all of Georgetown, for appellee.
   McClendon, o. j.

Nowlin (appellee) sued the surety company (appeilant) upon a bond given by the latter in favor of the former guaranteeing a building contract. Upon a directed verdict, Nowlin recovered judgment against the surety company for $4,000, the full amount of the bond, with legal interest from November 1, 1929. The surety company has appealed, and presents three points which we will consider in the following order:

I. That it was not liable because Nowlin (had the right to credit the amount of his loss upon a note given the contractors in payment for the building, which note the contractors had transferred to Griffith.

2. That interest was not allowable because Nowlin had merely obligated himself to pay the amount of his loss.

3. That the court improperly admitted evidence to the effect that the mechanic’s lien and note given by Nowlin to the contractors and the assignment thereof to Griffith were not in fact executed until July 31, 1929. although bearing previous dates.

The first point presents the controlling question in the case. The material facts, which are undisputed, follow:

Nowlin as owner entered into a building and mechanic’s lien contract with Perkins and Marinich (to whom we will refer as contractors), whereby the latter' were to erect for the former a garage building at Georgetown, for the sum of $11,000, represented by a promissory note for that amount, payable to the order of the contractors. The contract further provided:

“It is further agreed that a failure to complete said improvements, or failure to complete the same according to contract, shall not defeat said indebtedness and lien, but in such ease the indebtedness and lien upon said premises and improvements shall exist in favor of said party of the second part, his heirs and assigns, for said contract price, less such an amount as would be reasonably necessary to complete said improvements according to the said plans and specifications.”

This contract bore date July 11, 1929, but was not acknowledged by the contractors until July 30, 1929, at Dallas, and by Nowlin until July 31, 1929, in Williamson county. The note bore date July 11, 1929. The contractors made an agreement with Griffith, under which he was to furnish them money and material to the amount of the note to be used in the construction of the building; and the contractors indorsed the note and executed an assignment of the note and mechanic’s lien to Griffith. This instrument bore date July 18, 1929, but was not acknowledged until July 30, 1929, at Dallas. On July 30, 1929, the contractors applied to the surety company for a $4,000 bond guaranteeing the contract. This application stated:

“All cash to be paid when job finished. Griffith Lumber Company, Georgetown, Texas, will furnish money to pay for all labor and supplies. Percentage reserved from payments until completion — none will be paid until completed. Date work is to be commenced —soon as bond made.”

On the same day the surety company executed the bond sued upon, in which the latter was “held and firmly bound unto D. D. Nowlin and all laborers, material men and subcontractors, who furnish labor or material' in the building of the improvements hereinafter mentioned.” The 'bond obligated the surety to .full compliance with the contract by the contractor, and that the surety would indemnify Nowlin for all loss incurred by any default of the contractors, “and shall pay off and discharge any and all just claims of laborers, materialmen and subcontractors,'for labor and material furnished in the erection and building of said improvements.”

The record shows without controversy that Griffith fully complied with his agreement with the contractors and furnished them money and material to the full amount provided in the contract, all of which was used in the building; and that the contractor then abandoned the work and Nowlin had the contract completed at a cost in excess of $4,000. This latter was done under an agreement between Nowlin and Griffith, whereby Griffith furnished the money and material and Nowlin obligated himself to pay the amount thereof. There is no issue raised upon the question of amount.

In the view we take of the ease, it is immaterial whether the mechanic’s lien, note, and assignment were executed so as to become effective on their respective dates or whether all of the instruments were delivered on July 31, 1929. The surety company actually knew and was charged with knowledge of the contents of the mechanic’s lien which showed on its face that a negotiable promissory note had been executed in full payment of the contract price. It also knew that Griffith was financing the job, and it was charged with knowledge, if it did not in fact have it, that the note and mechanic’s lien had been or would be assigned to Griffith as security for his outlay.

The decision of the question here presented is controlled by the case of Galbraith-Foxworth Lumber Co. v. Long (Tex. Civ. App.) 5 S.W.(2d) 162, in which a writ of error was refused by the Supreme Court. The facts in that case are in every essential the same as in the case at bar. There, however, the lumber company (assignee of the mechanic’s lien note) was the plaintiff in the court below, the owner having refused to pay the note. The surety was impleaded and all parties were before the court. The same contention was made by the surety in that case as in the case at bar. The opinion in that case, which is by Chief Justice Jones of the Dallas court, gives a very careful analysis of the issues presented and of the respective rights of the parties. It was held that the provision in the mechanic’s lien contract whereby the note might be credited with the amount reasonably necessary to complete the contract was an optional privilege to the owner which he might exercise instead of resorting to the liability of the surety. He was, however, not required to do so, and the opinion expressly holds he might have paid the note in full and brought his action against the surety. He was allowed his credit upon the note, but the lumber company was given judgment for the amount of that credit against the surety on the general principles of subrogation, the holding being that as between the lumber company and the surety the latter was primarily liable to 'the owner. We do not think it necessary to more fully detail the views expressed by the Dallas court. The reasoning is clear and convincing and the conclusions reached are in our opinion sound.

The surety company relies upon the earlier case of Indemnity Ins. Co. v. Bassett (Tex. Civ. App.) 299 S. W. 714, by the ©1 Paso court, in which a writ of error was also refused. We have examined the application for writ of error in the Long Case and find that one of the grounds of jurisdiction asserted was a conflict between the holding of the Dallas court in the Long Case and that of the ©1 Paso court in the Bassett Case. We quote from the application:

“The Court of Civil Appeals for the Fifth District held in the instant case that it was the duty of plaintiffs in error to pay the full amount of the note to the Lumber Company, irrespective of the expenses incurred by them in completing the contract and of their claim for damages, and further held that plaintiffs in error might have made such a voluntary payment to the Lumber Company and there-afterwards have recovered their damages from the bonding company. The El Paso Court of Civil Appeals held, under identically the same facts, that a voluntary payment made by the owner of the property to the holder of a mechanic’s lien note could not be recovered from the sureties.”

We shall not attempt to distinguish or reconcile the two decisions. The holding in the Long Case we think is conclusive of the instant case, and we regard the refusal of the application for writ of error on the above-quoted ground in the application as a necessary approval of the opinion in the Long Case. For which reasons, and because we believe the Long Case was correctly decided, we follow the holding in that case. .•

The point with reference to interest is overruled. The contention in this regard is that since Nowlin had not paid Griffith the amount necessary to complete the building, but was merely under legal obligations to pay, he was not entitled to recover interest from the surety company. It is immaterial we think whether Nowlin had paid Griffith this amount. His obligation to pay was absolute and the liability of the surety to reimburse him accrued when that obligation was incurred, interest from which date at the legal rate was a proper charge.

What has already been said disposes of the objections to the evidence that the mechanic’s lien contract, note, and assignment were not executed until July 31, 1929. All of these instruments were part of the same transaction, and whether they were executed at different dates has no material bearing upon the rights of the parties. Furthermore, it conclusively appears that all of these instruments were in contemplation of the parties when each was executed, and as shown by the application for the 'bond, they were dependent upon the execution of that instrument.

The trial court’s judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: COBBS, J.

license: Public Domain

text:
    BENAVIDES v. BENAVIDES et al.
    No. 8543.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1931.
    Rehearing Denied March 11, 1931.
    N. A. Rector, of Laredo, for appellant.
    Phelps & Phelps, of Laredo, for appellees.
   COBBS, J.

The appellant- herein instituted this suit in the district court of Zapata county, Tex., for partition of a part of porcion No. 4, consisting of 1,800 acres of land, in Zapata county, and by order of said court the venue was changed to the district court of Webb county, Forty-Ninth judicial district.

The case was tried before the court without a jury who rendered a judgment for partition in accordance with the findings of fact" filed herein. There was much testimony submitted as to the several interests claimed by each party. The court after hearing all the evidence, pro and con, entered his decree of partition. The only findings that seem to be important to notice are those contained in paragraphs 10 and 11, which are as follows:

“10. I find that by descent, distribution and purchase, the 1800 acre tract of land in Por-cion No. 4 is owned in fee as follows:
“Jesus Garcia Benavides, plaintiff, owns one-eighth (⅛) plus 25 acres purchased from Maravillo and less 40 acres sold to the inter-vener, Manuel Martinez Garcia.
“Rafael Garcia Benavides owns one-half (½) thereof.
“Ignacio Garcia Benavides owns one-fourth (½) thereof.
“The heirs of Ramon Garcia Benavides, as set forth in Paragraph 5 hereof own one-eighth (⅛) thereof, less the 25 acres sold by Poliearpo Maravillo to Jesus Garcia Bena-vides.
“I charge each portion above with the pro rate acreage required to make the share of the heirs of Ramon Garcia Benavides, deceased, (charging that share also with its proportional part) 300 acres.
“11. I find the ownership of the parties in the 974.34 acre tract in Porcion No. 3 to he as follows:
“Elvira Garcia de Garcia, wife of Melquí-ades Garcia, is the owner of 243½; Rafael G. Benavides is the owner of 277 acres therein; Ignacio G. Benavides is the owner of 69⅜ acres therein; Wenceslada Pena Vda. de Benavides is the owner of a life estate and Ramon Garcia Pens is the owner in fee of 69¾ acres therein; the plaintiff, Jesus Garcia Benavides is the owner of 69⅛ acres therein and the heirs of Ramon Garcia Bena-vides, deceased, as heretofore found, are the owners of 69⅛ acres by inheritance and 176.84 acres by purchase.”

We think the evidence supports the court’s findings.

There are not many intricate questions of law to be considered, and such as they are we overrule. We think the court correctly held that the deed from Marshall I-Iicks to ’ Jesus Garcia Benavides put no title in Jesus Garcia Benavides. If it did, it was to be held in trust by him for the benefit of himself, Ignacio Garcia Benavides, and Rafael Garcia Benavides, in shares proportionate to their interests or ownership therein.

We sustain the findings and conclusions of the trial court that Rafael Garcia Benavides has 862.5 acres in the 1,800-acre tract out of porcion Nq. 4; Ignacio G. Benavides, 431.25 acres; Jesus Garcia Benavides, 200.625 aeres; Manuel Martinez Garcia, 40 acres; and the heirs of Ramon Garcia Benavides, deceased, 265.625 acres. And the ownership of the parties in the 974.34 acres in porcion No. 3 is, as above set out in paragraph 11, of the court’s findings.

This case has been fairly tried and the evidence supports the judgment, and it will accordingly be affirmed.


author: HIGGINS, J.

text:
    SHAW v. WHITFIELD et al.
    No. 2494.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 12, 1931.
    John Perkins and Mae M. Ament, both of Alpine, for plaintiff in error.
    Van Sickle & Fisher, of Alpine, for defendants in error.
   HIGGINS, J.

This is a suit by Shaw against Guy S. Gibson, J. A. Whitfield, and J. M. Turner.

The only complaint here made of the judgment of the court below is the denial of foreclosure against Whitfield of a chattel mortgage.

The record discloses due service upon Whitfield but no answer filed. The judgment recites his appearance in person and by attorney “and the matters of fact as well as of law were submitted to the Court without the intervention of a jury.” The judgment also recites “the plaintiff stated in open court he was not seeking any judgment against J. A. Whitfield, and J. M. Turner.”

The first two propositions assert that in the absence of pleading filed by Whitfield, the court was without jurisdiction to render judgment in favor of Whitfield denying plaintiff foreclosure of the chattel mortgage. The failure of Whitfield to file an answer presents no jurisdictional question. Such failure entitled plaintiff in error to judgment by default (article 2154, R. S.) against Whitfield, but this right he waived by proceeding to trial without taking advantage of Whitfield’s default in answering. 34 C. J. 177; Looney v. Linney (Tex. Civ. App.) 21 S. W. 409; W, T. Rawleigh Med. Co. v. Mayberry (Tex. Civ. App.) 193 S. W. 199.

Certainly the matter presents no error in view of the fact, as shown by the recitation in- the judgment, that plaintiff in error in open court stated “he was not seeking any judgment against J. A. Whitfield.”

Complaint is also made of the admission of certain evidence offered by Whitfield. The record shows no> bill of exception to the admission of the evidence.

Furthermore, the admission of the evidence could not possibly be reversible in view of the admission by plaintiff in error in open court that he was not seeking any judgment against Whitfield.

This disposes of all questions presented in the brief.

Affirmed.


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

text:
    K. M. REGAN et al., Relators, v. J. H. WALKER, Commissioner, et al., Respondents.
    No. 1171—5572.
    Commission of Appeals of Texas, Section B.
    March 4, 1931.
    E. F. Smith, of Austin, for relator.
    Robert Lee Bobbitt, Atty. Gen., and W. W. Caves, Asst. Atty. Gen., for respondent Walker.
    Lea, McGrady, Thomason & Edwards, of El Paso, for other respondents.
    R. J. Randolph, of Austin, for intervener.
   SHORT, P. J.

This is a companion case to that of Hugo Freels, Relator, v. J. H. Walker, Commissioner of the General Land Office, et al., which was submitted at the same time as was this case. An opinion having been written by Judge Leddy of this Commission in the Freels Case, which has been adopted by the Supreme Court, and the pertinent facts being the same in this case as in the Freels Case, it is only necessary to state the few facts necessary to differentiate the two cases. 26 S.W.(2d) 627, rehearing denied 45 S.W.(2d) 408.

The relators in this case allege the undisputed facts to be that they are the owners of the southeast part of section 92, block 1, certificate 3/546, W. & N. W. Ry. Co. survey, in Loving county, Tex., containing 186.2 acres of land; the entire section 92 being a fractional section containing 286.2 acres, Hugo Freels, the relator in the first case mentioned, being the owner of the remaining 100 acres. The rights of these relators to the 186.2 acres of land are based upon the same legal conclusions upon which we base the rights of Hugo Freels to the 100 acres of land.

In this case the intervener, M. L. Frazier, occupies the same relation to the land involved as the intervener, M. L. Davis, occupied in the Freels Case, and, since the facts are the same in relation to the two tracts of land, it necessarily follows that the conclusion we reached in the Freels Case with reference to the rights of the intervener, Davis, is the same conclusion we have reached as to the rights of the intervener, Frazier.

The opinion written in the Freels Case discusses fully and satisfactorily the pertinent principles of the law applicable to the facts, and we see no necessity for an extended discussion in this case.

We therefore recommend that the writ of mandamus prayed for by relators be awarded, and that the prayer of intervener be denied.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted, and mandamus awarded relator, and prayer of intervener denied, as recommended by the Commission of Appeals.


author: CHRISTIAN, J.

text:
    Lester COLE v. STATE.
    No. 14228.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    H. M. Hood, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

Upon written request of appellant,' duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

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


author: LATTIMORE, J.

text:
    Vardra FANCHER v. STATE.
    No. 14156.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    D. T. Moore, of Aquilla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

We find with the record an affidavit in proper form sworn to before the district clerk of Hill county, by the appellant, asking that his appeal be dismissed.

The appeal is dismissed at the request of the appellant.


text:
    W. C. HICKEY v. STATE.
    No. 14145.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied March 11, 1931.
    See, also, 34 S.W.(2d) 1116.
    A. A. Dawson, of Canton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for rape; punishment, twenty-five years in the penitentiary.

The record is before us without any bills of exception. Nor does any testimony appear to have been introduced in behalf' of the accused. The prosecuting witness, a girl 13 years old, testified fully to acts of illicit intercourse between her and the appellant. She is corroborated by a doctor who examined her, and by her mother, as to her age.

No error appearing, the judgment will be affirmed.


text:
    Sam HORLACHER v. STATE.
    No. 14158.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    J. M. Marshall, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating. liquor; punishment, one year in the penitentiary.'

We find with the record an affidavit in due form by the appellant asking that his appeal be dismissed. The request is granted.

The appeal will be dismissed.


author: CALHOUN, J.

text:
    Albert JONES v. STATE.
    No. 14241.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Chas. Roach, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, sale of intoxicating liquor; -penalty, one year in the penitentiary.

No bill of exception or statement of facts appears in the record. Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal and stating that he desires to accept the judgment and sentence rendered against him in the trial court.

The motion is granted, and the appeal dismissed.

PER CURIAM.

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


text:
    Tom SHOOK v. STATE.
    No. 14128.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Robertson & Friberg and Gerald Coffey, all of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment,, confinement in the penitentiary for thirty years.

No bills of exception are found in the record. The jury were warranted in concluding from the evidence that appellant threatened to kill Oscar Dougherty, and that he thereafter killed him by cutting and stabbing him with a knife. Such facts were not controverted. Appellant offered no testimony.

The judgment is affirmed.

PER CURIAM.

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


author: MORROW, P. J.

text:
    Alfred THOMPSON v. STATE.
    No. 14243.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; penalty assessed at confinement in the penitentiary for a period of 1 ½ years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is ordered dismissed.


author: LEVY, J.

text:
    H. L. PEARSON, Appellant, v. Mrs. D. D. BREWER, Appellee.
    No. 3806.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1930.
    Rehearing Denied Dec. 31, 1930.
    Edgar Wright, of Paris, for appellant.
    W. F. Moore, of Paris, and A. B. Robbins, of Clarksville, for appellee.
   LEVY, J.

The action was by the appellant against the appellee. A general demurrer was sustained to the petition. The appeal is by the appellant to revise that ruling of the court.

By the petition, the appellant, claiming the right of use and possession of a certain strip of land, sought an injunction to compel the appellee to remove from such strip of land a certain portion of her building claimed to be located on such piece of ground. The petition sets forth at length the pleadings, issues, judgment rendered by the district court, and judgment on appeal by the Court of Civil Appeals in a former suit between the same parties concerning the land. The plaintiff in the case claimed that, by the decrees in the former suit, title and possession to the particular strip of land now in suit was vested in him. The claim of title in the plaintiff was rested by him purely in virtue of the decrees pleaded, and he does not plead ownership otherwise.

The case was presented and argued to the trial court, as is done here, on the theory of the legal effect of the decrees of the court pleaded in the petition. The trial court concluded that, in the light of all the decrees and matters pleaded, the petition alleged no title in the plaintiff to the strip of land now in litigation. It is unnecessary to here set out the allegations of the petition.

It is believed that the trial court did not err in the ruling so made by him, and the judgment is affirmed.


author: WABKER, J.

text:
    Eula RICHARDS v. WALD TRANSFER & STORAGE COMPANY.
    No. 2038.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 22, 1931.
    Howth, Adams & Hart and Elton Cruse, all of Beaumont, for appellant.
    King, Wood & Morrow, of Houston, for ap-pellee.
   WABKER, J.

Appellant having failed to brief this case, it is ordered that appellee’s motion to dismiss on that ground be, and the same is hereby, sustained. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.(2d) 811.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Perry Lester THRESHER, Jr., Appellant.
    No. 48749.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1961.

      Virgil Conkling III, No. Kansas City, Robert E. Coleberd, Liberty, for appellant.
    Thomas F. Eagleton, Atty. Gen., Daniel J. Leary, Sp. Asst. Atty. Gen., for respondent.
   HOUSER, Commissioner.

Perry Lester Thresher, Jr., was convicted of first degree murder and sentenced to life imprisonment. Defendant appealed but filed no brief, so we examine the nine assignments of error in his motion for a new trial. Supreme Court Rule 28.02, V.A.M.R.

The information charged that on April 23, 1960 in Clay County defendant wilfully, premeditatedly, deliberately and of his malice aforethought assaulted, struck, hit and beat Constance Rebecca Williams with a stick of wood while attempting to perpetrate rape upon her, thereby inflicting a mortal wound from which she died.

Assignments one and nine (that the state did not make a submissible case on the charge of murder in the first degree) require a review of the evidence. The principals in this tragedy were Perry Lester Thresher, Jr., the defendant, a 19-year-old married man known to his friends as “Tarzan”, and the victim, Mrs. Constance Rebecca Williams, referred to throughout the trial as “Beckie.” Mrs. Williams, a young married woman whose husband was overseas, previously had been married to Bobby Lee Dayton, age 28, but that marriage ended in divorce. Those who participated in the events which led up to the death of Beckie, in addition to the principals, include Bobby Lee Dayton; one Charles Dobson; Carolyn Thresher, wife of defendant, and Fay Car-rol Thresher, 16-year-old sister of defendant. The state introduced evidence tending to show these facts: Early on the afternoon of April 22, 1960 Dayton and defendant were at the home of friends in Kansas City. Dayton asked defendant to call Beckie by telephone and ask her to meet Dayton. Defendant refused but defendant’s wife agreed to and did make the call. Beckie met Dayton in response thereto. Beckie and Dayton left the house together and were gone for an hour. They returned, picked up defendant and Dobson, and the four went to Mickey’s Tavern on 27th Street. From then until about lip. m., except for intervals when one or more of them would leave the group, these four (defendant, deceased, Dobson and Dayton) were together, traveling from place to place in automobiles, and drinking in taverns. During that period all of them did some drinking of beer and whiskey. Defendant drank “mostly beer all afternoon”, and three shots of whiskey. They ate very little food. Dayton left the group before 11 p. m. and did not return. Between 11:30 p. m. and midnight defendant, deceased and Dobson went to the home of defendant’s mother. There Beckie prevailed upon Fay to go with them, saying that she was “scared” and did not want to go by herself. Defendant, deceased, Dobson and Fay drove to a tavern, where the men bought six cans of beer. Then they drove to the “drag strip”, where they remained for 15 or 20 minutes. At this stage defendant “was about passed out.” Thereafter the four drove to the city dump in Clay County. Dobson and Fay were in the front seat; defendant and Beckie in the rear. Dobson parked the car and turned off the lights. Beckie suggested that they get out of the car and walk around a little. As defendant and Beckie left the car she turned the radio on full blast. The two started walking toward the river, leaving Dobson and Fay in the car. A few minutes later Fay and Dobson heard a scream. They turned the radio down, started the car and drove in the direction of the scream. Using the flashlight they tried to locate Beckie and defendant, but failed. They parked the car again, waited a while (perhaps as much as five minutes), and then heard another scream, and then another. They got out of the car and Dobson said “It sounds like it’s coming from the railroad track.” They turned the flashlight on and ran to a level spot by a wooded area. There they discovered Beckie, lying on her back on the ground with nothing on but a brassiere and the long pants (pedal pushers) which she had been wearing. These pants were pulled down. Defendant had torn the woman’s clothes “off of her.” She was lying on her white panties, which were “all torn” in small pieces. Defendant was lying on top of Beckie. He had no shirt on and his pants were down to his knees. Dobson started to turn around and walk away. He thought they “were just having an affair.” Defendant jumped up and said “I hurt her * * * I must have hurt her.” Dobson walked closer, where he could see better, and noticed that Beckie had blood on her face and shoulders. Her eyes were “just a little bit open and her mouth was open * * * and she was moaning * * *.” Dobson asked defendant why he hurt her and defendant said, “She bit me.” Dobson asked defendant what he hit her with and defendant replied, “A stick.” Defendant said, “We have to take her to a hospital.” Fay was told to grab Beckie’s shoe and purse. Defendant picked Beckie up in his arms and started carrying her to the car. Dobson walked alongside carrying the flashlight. Beckie was bleeding and there was blood on defendant’s chest. Beckie slipped out of defendant’s arms “because she was all bloody” and went to the ground. Fay said that when she fell to the ground she struck her head on a “level” rock, but Dobson did not see Beckie strike her head on a rock and saw no rock on the ground. Dobson said she “slipped” out of one of defendant’s arms and “went down to the ground easy.” Dobson then helped defendant carry Beckie to the car. No effort was made to put her clothes back on, but at defendant’s request Dobson took off his shirt and wrapped the shirt around her. The men then threw the beer cans out of the car and drove to a hospital. At about 2 a. m., April 23, she was examined by a doctor, who found her partly clad, bleeding severely, unconscious, and choking on her own secretions. She never regained consciousness. Suction therapy was instituted to maintain an air passage and keep her alive. She had four deep lacerations on the right side of her head, a minor laceration behind the ear, a laceration on the ear. She was bleeding from the nose, mouth and ear, and was severely bruised about the left side of the head, eyes and left shoulder. She was suffering from increased intracranial pressure or contrecoup hemorrhage. She required the care of a neurosurgeon and none being available at that hospital, was sent to General Hospital. At the first hospital, after the police arrived, defendant told the police “It was all my fault. She bit me and I hit her”; that he did not know what he hit her with, “He’d picked up something and hit her.” He said “He did it”; that he had torn off her clothing, and several times stated “It’s my fault, and take me down, I’ll pay for what I’ve done.” The officers smelled alcohol on his breath. At the hospital a detective asked defendant what happened to the victim. In answer defendant said “he had struck her with a piece of wood. I asked him why she had bitten him, * * * and he replied that he wouldn’t answer, that he didn’t want to say anything that would hurt her reputation.” At 3:55 a. m. Beckie was examined at General Hospital by a doctor who found her in shock, unconscious, with lacerations of the scalp, contusions and bruises of the face, and evidence of a head injury. She lived about one minute. An autopsy revealed that the cause of death was massive skull fractures, cortical contusions, cerebral lacerations, and a large blood clot between the bone and the brain. In the opinion of the doctor in charge of the autopsy death was due to injuries received between 11 p. m. April 22 and 2 a. m. April 23, 1960, and that the striking of the deceased with a stick by the defendant could have caused her death. The police took Dobson from the hospital to the scene at the city dump. There they found a stick or wooden tree limb about 20 inches long and 1⅝⅛ inches in diameter. Shown to defendant the latter stated that the piece of tree limb looked like the stick he hit the deceased with. Photographs were taken at the scene. Beginning at 5 a. m. April 23 a confession was taken from defendant, typed in question and answer form and signed by defendant. That afternoon defendant signed another statement at the Clay County Courthouse. The statement taken in the early morning, in the office of the homicide unit of the Kansas City Police Department by Detective Louis Roberts, in the presence of Sgt. John Garnett, showed that after having been advised of his constitutional rights and informed that he was not required to make a statement and was entitled to consult friends and attorney, defendant was willing to waive these rights and make a statement with reference to the fatal beating, knowing that it could be used in court against him in the event of a trial. It further indicated that defendant had known Beckie quite a while, almost two years; that she had stayed at the home of defendant and his wife; that he did not know why “he tried to f... her”; that he guessed it was because of Dayton; that one day Dayton had relations with Beckie in his house “practically in front of us,” and “I guess that is why I tried to get her because he did and I thought I could too.” Defendant further stated that Beckie and Dayton left Mickey’s Tavern together on the afternoon of April 22; that Dayton “took Beckie somewhere and when he came back he was bragging about how he did it to her. I guess that’s what gave me that crazy notion.” Defendant stated that after they arrived at the dump that night “She wanted to get out and go walking. I was in a daze and kept stumbling around. She got cold so I took off my shirt and put it around her.” They got to talking about her and her former husband and sat down on the ground.

“A. All I can remember is her biting me on the arm.
“Q. What happened after she bit you? A. Oh, I was mad and I hit her.
“Q. What did you hit her with? A. Something laying around. Just a stick. She had hold of my arm and was scratching me and everything.
° £ to to ol Cu O P O ⅞ tí n> •t £ <■ ’¡o <L) 4H
“Q. Did she fall down when you hit her? A. No, sir, she was already down.
* * * ⅜ ⅜ *
“Q. I am going to show you a piece of a tree limb and ask you if this is the stick you hit her with? A. It looks like it.
“Q. Will you scratch your initials on it for identification? A. Yes, sir.” (scratches initials P.L.T. on club)

The statement given to the Sheriff of Clay County related the following version of what happened: “We stopped and sat down. Beckie layed down on her back. She said Bobby had held her down and had a sex relation with her and I said ‘Like this?’ And that is all I remember until my sister called and said she was ready to go. * * * Q. Did you strike her? A. I don’t remember striking her but I must have because there wasn’t anyone else around.”

The foregoing facts, together with the reasonable inferences to be drawn therefrom, made a submissible case of homicide committed in an attempt to perpetrate rape which, by force of Section 559.010 RSMo 1959, V.A.M.S., is deemed murder in the first degree. There was ample evidence from which the jury could find beyond a reasonable doubt the fact of Beckie’s death; the criminal agency of someone other than the deceased causing the death, and that defendant administered fatal blows to the head and body of the deceased in an attempt to rape her. The corpus delicti was sufficiently proved, thus rendering the extrajudicial admissions and confession of defendant clearly admissible. Defendant’s admissions and confession were sufficient to complete the case against him. From the direct and circumstantial evidence, and the extrajudicial statements of the defendant the jury could find beyond a reasonable doubt that defendant knew that Beckie had continued to maintain illicit relations with her former husband after her divorce and remarriage; that this aroused in him a lustful desire to secure her favors; that with their inhibitions released by the prolonged drinking spree in which they had engaged that afternoon and evening, defendant attempted to have intercourse with Beckie when they were alone together in a dark and secluded place; that she resisted, screamed, called him a vile name, held his arm, scratched and bit him; that he became angry, struck her on the head a number of hard blows with a stick, blows which rendered her unconscious and reduced her to a state of submission and eventually produced her death; that he then tore off her clothes, pulled down his pants, got in position and was about to perpetrate a rape upon her prostrate body when interrupted by Dobson and defendant’s sister. Upon proof of homicide committed in an attempt to commit rape the law supplies the essential ingredients of murder, namely, malice, premeditation and deliberation. State v. Cole, 354 Mo. 181, 189 S.W.2d 541, and cases cited. There was substantial evidence to support the verdict of the jury.

Exhibits 1 and 2, photographs of that area of the city dump where Dobson and Fay found defendant and Beckie on the ground, were properly admitted in evidence as against defendant’s objections that they were not properly identified; prejudicial in that they did not tend to connect defendant with the crime and showed a spot which the jury could have speculated was a blood stain; threw no light on any material issues ; were no evidence of defendant’s activities; and did not tend to establish the conditions existing at the place of the alleged crime. At the request of Detective Roberts, Dobson took the officers and Harry Hicks, a photographer connected with the Kansas City Police Laboratory Corps, to the scene of the crime. There Hicks took the pictures Exhibits 1 and 2, which show the surrounding ground, the grass, some tree trunks, sticks, limbs and twigs, a beer can and some dark spots. Dobson, present when the photographs were taken, stated that Exhibits 1 and 2 were fair and accurate representations of the scene of the events to which he had testified. Detective Roberts, present when the pictures were taken, identified them as pictures of the area pointed out by Dobson. The identification was sufficient. Demonstrative evidence of this kind is admissible if it throws any relevant light on a material matter at issue. State v. Moore, Mo.Sup., 303 S.W. 2d 60 and authorities cited, loe. cit. 65. These exhibits, showing that at the scene there were numerous clubs and sticks of the size and kind that defendant said he used to beat Beckie, would be material in support of defendant’s admission that he hit Beckie with a stick, to show that the parties were at a place where numerous sticks and clubs were lying around handy, in easy reach of the defendant, and to illustrate the conditions existing at the place of the crime, including the fact that the scene of the crime was a lonely, secluded area. In view of the evidence of the considerable amount of blood which Beckie lost, the dark spots in the pictures were proper for the jury to consider. The trial court properly exercised its discretion in admitting Exhibits 1 and 2.

Exhibits 6 and 7, photographs of the upper body and head of the deceased, taken after her death at General Hospital by a member of the Kansas City Police Department, were properly admitted in evidence as against defendant’s objections that they were inflammatory and gruesome; that they did not tend to connect defendant with the crime; that they threw no relevant light on any material issue; that they did not show what change occurred in the condition of her head before and after her head was struck on the rock mentioned in evidence; and that there is nothing to show that the condition revealed was not caused by the fall. A doctor had shaved away the hair and the pictures revealed five large, wide, open lacerations. The purpose of Exhibits 6 and 7 was to show the nature, extent and severity of the blows administered to the head of the victim. These photographs were material to the state’s theory that blows were struck with a large wooden stick wielded by defendant of sufficient force and violence to fracture the skull of the deceased and to cause her death, and they tended to negative defendant’s suggestion that Beckie’s fall from the defendant’s arms may have' caused her death. “It is proper to show the condition of the body of deceased * * *; the existence of wounds, their nature, location, ⅜ * * appearance, * * 40 C.J.S. Homicide § 248, a. (2), p. 1191. Even if the pictures were inflammatory and gruesome, as contended, it is not a sufficient cause for their rej ection that the sight of them would tend to agitate the feelings of the jurors, if the exhibits satisfy the rule as to the admission of demonstrative evidence. State v. Moore, supra, 303 S.W. 2d loc. cit. 66, and cases cited; State v. Laspy, Mo.Sup., 298 S.W.2d 357, loc. cit. 361, and cases cited. The trial court properly exercised its discretion in admitting Exhibits 6 and 7.

Exhibit 11, a stick of wood approximately 20 inches long and 1½ inches in diameter, found at the scene of the crime by Detective Roberts within three hours after the commission of the crime, was properly admitted in evidence over defendant’s objection that it was never properly identified as having been used by defendant. “Subject to the qualifications of relevance and identification, instruments employed by the defendant in the commission of a crime are admissible in evidence to show the nature of the instrument used.” Wharton’s Criminal Evidence, Vol. II, § 677. Defendant objects that no laboratory tests were made for fingerprints, blood, hair, or flesh on the stick, and that there were many other sticks of wood of similar size and dimension at the scene. No such identification was necessary in view of the fact that defendant himself sufficiently identified Exhibit 11. Exhibited to him and asked if that was the stick with which he hit her, defendant said “It looks like it.” Then de-fendánt scratched his initials (P.L.T.) on the stick for identification. This was sufficient to authorize the admission of the stick in evidence to illustrate the type and kind of weapon used. In State v. Reeves, Mo., 195 S.W. 1027, loc. cit. 1031, this Court, passing upon the admissibility in evidence of an iron bar and a piece of board which where said to have been found at or near the place where the homicide occurred, said, 195 S.W. loc. cit. 1031: “The deceased was killed by some implement of that character, and, as these things were found at a place where they might have been used, and Byrd said he saw something like the iron bar in Steve’s hand that night during the fight, there was no error in allowing them to be introduced in evidence for what they were worth. State v. Gartrell, 171 Mo. 489, loc. cit. 507, 71 S.W. 1045.”

Dr. Charles Wheeler examined the autopsy report, conferred with the doctors who actually performed the autopsy, examined some photographs and slides of the organs of the deceased taken at Dr. Wheeler’s direction, and examined the organs of the body after they had been removed. Defendant assigns as error the action of the court “in permitting Dr. Charles Wheeler to testify in response to a purported hypothetical question propounded by the state that the injuries to deceased’s head if caused by being struck by a stick of wood could have produced death.” Defendant urges that the doctor was not qualified to answer the question and give an opinion because he merely examined the organs and did not view the body of the deceased, and that the hypothetical question invaded the province of the jury and was therefore prejudicial. We find no error in either respect. The record indicates that Dr. Wheeler was well qualified by education, training and experience, and we find him qualified to testify as a medical expert on the subject matter under consideration. The state had a right to frame a hypothetical question upon its own theory of the facts. State v. Francies, Mo.Sup., 295 S.W.2d 8. The question carefully delineated the principal facts upon which the state relied, including the act of defendant in striking the deceased about the head with a stick. It was the doctor’s opinion that, assuming the truth of the facts hypothesized, the injuries received caused damage to the brain which in turn caused the death. The hypothetical question as framed did not invade the province of the jury, but properly called upon the witness as an expert to express an opinion upon a matter as to which he was qualified, based upon sufficient means of knowledge.

Defendant assigns as error the introduction into evidence of Exhibit 13, the confession taken by the Kansas City Police Department, because “the statement was obtained about four or five hours after the alleged crime, * * * when defendant was suffering from the effects of excessive drinking and at a time when his eyes were bloodshot, he smelled of liquor, and his balance was not good.” The officers who took the confession indicated that while defendant was partially under the influence of intoxicants, he was not affected to the point where he did not know what he was doing or saying; that he was not drunk at the time the statement was taken, but appeared to know everything he told the officer; that he was cooperative and appeared to be anxious to “get it off his chest and tell his story.” Under this evidence the jury could find that defendant had sufficient mental capacity to know what he was saying. “The fact that accused was more or less intoxicated when he confessed does not exclude the confession if he had sufficient mental capacity to know what he was saying.” State v. Smith, Mo.Sup., 342 S.W.2d 940, loc. cit. 941, quoting from 22 C.J.S. Criminal Law § 828, p. 1452. But defendant makes the point that he was a 19-year-old boy, not represented by counsel, with no member of his family present, in police headquarters, in the presence of policemen and no one else, and was not advised of his constitutional rights until after he had been partially interrogated and had answered several interrogatories. There is no contention that he was denied counsel or the right to have an attorney or a member of his family present, or that he was never advised of his constitutional rights. In the confession defendant acknowledged that he was advised of his constitutional rights; that he did not have to make a statement, and that he was entitled to consult with friends or attorney, but that he waived those rights, and agreed to make a statement about the affair, knowing that it could be used in court against him. The only questions put to defendant before he was informed of his constitutional rights pertained to his name, age, birthplace, residence address, persons with whom he lived, and his place of employment. No questions relating to the crime, or any of the events leading up to the crime, were asked before defendant was apprised of his constitutional rights. There is no intimation that the confession was obtained by force, duress, promise of reward or leniency, or other improper means. The evidence is overwhelming that the confession was given freely and voluntarily. There was no prejudice to the rights of defendant under these circumstances. The court did not err in receiving Exhibit 13 in evidence.

Defendant’s next assignment is error in admitting in evidence Exhibit 14, the statement given the Clay County Sheriff’s office on the afternoon of April 23, 1960, and particularly the underscored part of the following answer: “Q. Did you strike her? A. I don’t remember striking her, but I must have because there wasn’t anyone else around,” because this “is merely a conclusion, a guess, a speculation on the part of the defendant and not admissible in support of the alleged crime charged in the information.” The admission of the last part of the answer “ * * * there wasn’t anyone else around” was proper. This was a statement of fact, admissible under the rule that “Any statements made' by a defendant, which tend to incriminate' him and connect him with the crime charged, are admissible when voluntarily" made.” State v. Sinovich, 329 Mo. 909, 40 S.W.2d 877, 881. Under the ruling in State v. Tyler, Mo.Sup., 306 S.W.2d 452, 456, there is a serious question whether defendant properly objected to the part deemed inadmissible, but assuming (not deciding) that the “I must have” part of the answer was inadmissible, it was harmless. Defendant, taken by surprise in the act of attempting rape, instantly volunteered that he had hurt Beckie; and positively stated that he had hit her with a stick. Again, at the hospital, defendant told the police repeatedly' that he “did it”; that it was his fault, and that he would pay for what he had done. Shortly thereafter, at the police station, he made a voluntary statement which was reduced to writing in which he positively, unequivocally and in detail related the facts of the beating, and identified the kind of club he used. Under these circumstances defendant was not prejudiced by that part of his answer that he “must have” struck her.

Finally, defendant assails Instruction No. 8, the verdict-directing instruction on murder in the first degree, on five grounds. None of the complaints is meritorious. The first paragraph properly instructs the jury on the law, that homicide in an attempt to perpetrate rape is deemed murder in the first degree and that upon a finding that such a homicide was committed, the attempt to perpetrate rape stands in lieu of deliberation and premeditation and warrants a finding of murder in the first degree. The first paragraph is not subject to the complaint that it states conclusions of law and authorizes a verdict but fails to hypothesize facts. The facts necessary to be found to authorize a conviction are properly hypothesized in the second paragraph, which is not erroneous for failure to define the term “credible evidence.” That term is sufficiently plain and meaningful and does not require definition. Nor does the second paragraph instruct the iurv on a crime not charged in the information, namely, attempt to ravish and carnally know, as alleged. As a predicate to a finding of attempt to perpetrate a rape the jury was required to find that defendant “wilfully, and feloniously did forcibly and against the will of * * *, make an assault upon her, the said * * * and feloniously and forcibly and against her will attempt to ravish and carnally know her, * * The wording objected to is descriptive of the elements of the crime of attempt to rape, is consistent with the statutory definition of rape contained in Section 559.260 RSMo 1949, V.A.M.S., and properly predicated the finding required to be made by the jury in order to convict. There was no deficiency in not requiring a finding that the offense was committed “in spite of her utmost resistance.” The “utmost resistance” doctrine has no application where the woman’s will is overcome by personal violence, or by putting her in fear of personal violence. State v. Moore, Mo.Sup., 143 S.W.2d 288, and cases cited, loc. cit. 289. Nor was there a failure to define the words “attempt to perpetrate a rape.” On the contrary, these words were sufficiently defined by the predicate above quoted.

A painstaking review of this entire record reveals no reversible error. Defendant, represented by capable lawyers, was accorded a fair and impartial trial. The verdict is proper in form and substance; the punishment is authorized by law, Section 559.-030, RSMo 1949, V.A.M.S.; allocution was granted; the judgment is proper in form and substance, and sentence was duly imposed. The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.

       Now 23 C.J.S. Criminal Law, § 828, p. 229.


author: WALKER, Justice.

text:
    KANSAS UNIVERSITY ENDOWMENT ASSOCIATION et al., Petitioners, v. R. V. KING et al., Respondents.
    No. A-7992.
    Supreme Court of Texas.
    Oct. 3, 1961.
    Rehearing Denied Nov. 1, 1961.

      Ernest A. Knipp, Houston, for Kansas University Endowment Ass’n and others, Howard S. Hoover, Sam Williamson and Henry V. Broady, Houston, of counsel.
    H. Fletcher Brownj Houston, for Gladys Deering and others.
    Walker F. Johnston, Taylor J. Hughes and Birch B. Kirk, Houston, for Jessie Loraine O’Reilly and others.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for respondent R. V. King, Austin C. Wilson, Houston, of counsel.
    Hamblen, Bobbitt & Hamblen, Houston, for Willis and Blanche Culmore.
    DeLange, Hudspeth & Pitman, Houston, for Houston Title Guaranty Co. and others.
    P. Harvey and Gordon S. Tate, Houston, for R. P. Lynn and others.
    F. T. Baldwin, Houston, for J. S. Wel-boan.
    Eastham & Williams, Houston, for Cyrus S. Gentry and others.
    Steeger, Dohoney, Jones & Caldwell, Houston, for non-appealing parties Marie A. W. White and others.
   WALKER, Justice.

This suit as originally filed was an action in trespass to try title for the recovery of title to and possession of certain lots and blocks in the Collins Tract Addition to the City of Houston. Almost a century ago two persons, Baker and Tankersley, thought they owned a tract of land which contained 259 acres. They subdivided and partitioned the same on the basis of their construction of the field notes used in certain deeds, and in the years that followed different parts of the subdivision were conveyed by lot and block number. It now appears that the parties actually owned only 244 acres, and there is not enough land available on the ground to locate all of the lots and blocks in accordance with the recorded plat. With minor exceptions the adjoining property on all sides has been subdivided and is thickly populated.

One of the questions to be decided is whether the tract which Baker and Tan-kersley intended to divide lies wholly within the survey patented to Charles B. Stewart, assignee of J. S. Collins, on March 1, 1841. In so far as the present proceeding is concerned, there is no dispute as to the location of the survey lines on the ground and no material discrepancy between the lines as so located and the field notes in the patent. The dimensions of the Collins Survey as set out in the patent, the location of adjoining surveys, and the 259-acre tract described below are shown on the following map:

By deed dated November 26, 1841, Charles B. Stewart conveyed to Darius Gregg a tract of land described by metes and bounds in the conveyance and said to contain 259 acres. Substantially the same description was used when the property was conveyed by Darius Gregg to B. F. Tankersley and W. R. Baker on April 28, 1847. These two conveyances are hereinafter referred to as the Gregg deeds. The description appearing in the 1847 instrument is as follows :

* * * two hundred and fiftjf-nine (259) acres of land, out of a survey granted to Chas. B. Stewart of four & one third labors of land in Harris County. Beginning on the west boundary line of two leagues of land granted to Harris & Wilson lying on the north bank of Buffalo Bayou at the North east corner of said Survey of Stewart, at a mound in the prairie, Thence west thirteen hundred and sixty four varas to a Stake for 2d. corner, Thence south thirteen hundred & sixty five and a half varas to stake for 3d. corner, Thence east five hundred & thirty four varas to 4th corner, Thence North four hundred & ninety two varas to 5th. Corner, Thence east eight hundred & eight varas to Harris & Wilsons line, Thence north with said line eight hundred & seventy three & a half varas to the place of Beginning.

Since the most westerly west line of the Collins Survey is 1206 varas in length, the 259-acre tract extends some 159½ varas into the S. M. Harris Survey if its boundaries are located in accordance with the beginning corner, courses and distances set out in the Gregg deeds. The called distance for the north line of the 259-acre tract is 22 varas greater than the sum of the called distances for the two south lines. Under settled rules of construction, the upper south line must be extended 22 varas so as to give effect to the call for adjoinder with the Harris and Wilson Survey. See Camp v. Gulf Production Co., 122 Tex. 383, 61 S.W.2d 773; Maddox v. Turner, 79 Tex. 279, 15 S.W. 237; Kirby Lumber Co. v. Gibbs Bros. & Co., Tex.Com.App., 14 S.W. 2d 1013. When that is done, the course and distance description encloses a tract of approximately 259 acres, of which about 15 acres is in the S. M. Harris Survey. So far as the present record discloses, however, none of the persons named thus far owned any interest in such Survey. The portion of the 259-acre tract which lies within the Collins Survey is hereinafter referred to as the 244-acre tract.

B. F. Tankersley died in 1859, and his widow, Mrs. Gertrude E. Tankersley, was appointed administratrix of his estate. The record indicates that his interest in the land may have been acquired with her separate funds. Be that as it may, Mrs. Tank-ersley and W. R. Baker executed a partition deed dated July 10, 1861. After reciting that the parties owned, and had laid off into numbered blocks and streets for the purpose of division, 259 acres of the J. S. Collins Survey described by metes and bounds in the instrument, Baker transferred to Mrs. Tankersley all of his title and interest in odd-numbered Blocks Nos. 1 to 115, inclusive, “according to a map made by W. E. Wood,” and Mrs. Tanker-sley quitclaimed to Baker all of her interest in even-numbered Blocks Nos. 2 to 116, inclusive. The description of the 259-acre tract in this deed is substantially the same as that used in the Gregg deeds except that the Harris and Wilson Survey is not mentioned in the last two calls. No plat was recorded with the deed, and the original W. E. Wood map referred to therein has not been introduced in evidence.

On June 14, 1862, there was filed for record in the office of the County Clerk of Harris County a plat identified as “Map of the Collins Tract Addition to the City of Houston.” A sketch of the Addition prepared by the Texas Highway Department is published as part of the opinion of the Court of Civil Appeals in Armstrong v. City of Houston, Tex.Civ.App., 272 S.W. 2d 556, 558-559. Although not an exact reproduction of the recorded plat, this sketch will be of assistance in understanding the questions now presented for decision. Any statements in this opinion regarding the map or plat refer to the recorded plat and not the published sketch.

Although the plat shows no directions and makes no reference to any survey or natural feature, it is to be presumed that the same was drawn in the conventional manner with reference to the points of the compass. See Lunn v. Scarborough, 6 Tex.Civ.App. 15, 24 S.W. 846 (no writ). The platted area is divided into 116 blocks, and each block is subdivided into lots. The outside dimensions of the subdivision are shown on the plat in feet. With but a single exception, these agree exactly with the distances called in the partition deed. The only discrepancy in this respect is that the plat shows the lower south line to be 1,544.5 feet (556 varas) in length, whereas the deed calls for 534 varas. There is a notation on the plat “drawn by Th. Kosse.” Other recitals indicate that J. Brashear was County Clerk and that the instrument was recorded by his deputy, H. Brashear.

The subdivision was never laid out on the ground, and the plat obviously is the result of an office survey. The only existing street hearing a name found on the plat is Labadie, which runs along the north line of the S. M. Harris Survey. There are .also streets on the north and east lines of the Collins Survey, but these are known, respectively, as Kelly Street and Hirsch Road. Aside from certain encroachments along the upper south line and lower east line, the land available on the ground today for laying out the subdivision is the 244-acre tract. Just when the 15-acre shortage was discovered is not clear, but the proper method for locating the blocks of the Collins Tract Addition has long been a disput•ed question.

Resort to the district court for a determination of that question became necessary when proceedings were instituted to condemn a highway right-of-way across part of the Addition. In City of Houston v. Culmore, 154 Tex. 376, 278 S.W.2d 825, it was held that since the conflicting claims to the various lots and blocks could not be resolved without the aid of the district court, the condemning authority might proceed in one action against all parties asserting an interest in the land. The damages assessed by the jury for the value of the land taken have now been deposited in the registry of the county court to await an adjudication of title, and it was to obtain such adjudication that the present suit was instituted.

There are between 300 and 400 parties to the suit represented by more than thirty attorneys. The basic positions taken by the different groups of parties in the trial court may he summarized as follows:

(1) The theory urged at the outset by the original plaintiffs, The Kansas University Endowment Association et al., is that the north and east lines of the platted area coincide with the corresponding lines of the Collins Survey, and that the record title must fail as to any land covered by the plat which was not owned by Baker and Tankersley. Under this approach, the record owners of approximately one and one-half tiers of blocks shown on the plat as being located immediately north of Labadie Street would have no title. Subject to a 22-vara shortage along the. lower east line, all other blocks could be laid out in accordance with the dimensions shown on the plat.

(2) Another theory is that the upper east line of the platted area coincides with the east line of the Collins Survey and the lower south line with the north line of the S. M. Harris Survey. Under this approach the record owners of the north one and one-half tiers of blocks would have no title, and a substantial portion of the land owned by Baker and Tankersley would be left undivided.

(3) A third theory, which was suggested to the trial court hut not urged except by motion for rehearing in the Court of Civil Appeals, is that the doctrine of equitable apportionment affords the only practical solution to the problem of locating the plat on the ground.

(4) R. V. King and others contend that the plat cannot be located on the ground. They also say that there is nothing to connect the plat with the W. E. Wood map referred to in the partition deed. If either of these contentions is sound, any party whose claim depends upon a conveyance by reference to the plat will be unable to establish record title.

On its own motion the trial court severed out all claims to specific tracts of land and directed that an action for a declaratory judgment as to the location on the ground of the perimeter lines of the Collins Tract Addition should first proceed to judgment. According to the pre-trial order, which was incorporated in the judgment later entered, it was the intention of the court “to provide a final judgment which will locate on the ground, if possible, a beginning point, a reference from which by latitude and departure the exact location by metes and bounds of any specified parcel could be secured in the severed cases.” It was also ordered that the judgment in the declaratory judgment proceeding should be res adjudicata as to the location of the perimeter lines only, and that such action would be without prejudice to the rights of the individual parties to seek relief with respect to their specific tracts “except that it will locate a reference point from which their land must be located.”

Four special issues were submitted to the jury at the conclusion of the evidence on the trial. The last three were conditioned on an affirmative answer to Special Issue No. 1, which inquired whether the recorded plat is a copy of the map referred to in the partition deed. After being advised that the jurors were unable to agree on an answer to such issue, the court withdrew the case from the jury and entered judgment finding and concluding as a matter of law:

(1) That the land actually owned and which was subj ect to partition by Baker and Tankersley is the 244-acre tract;

(2) That it was the intention of Baker and Tankersley to partition the 244-acre tract; and

(3) That said land so owned by them is the land covered by the recorded plat.

The Court of Civil Appeals reversed and! remanded for a new trial, because it concluded that there is evidence to support a finding that the lower south line of the Addition coincides with the north line of the S. M. Harris Survey. 337 SAV^d 295. Since that- is where the judgment of the trial court places such line, the intermediate court apparently construed such judgment as a determination that blocks within the Addition should be laid out in accordance with the theory urged by The Kansas University Endowment Association. There is considerable disagreement among the parties as to the effect of the trial court’s judgment, but we find nothing to indicate that any particular locative theory was either adopted or rejected. The conclusion that Baker and Tankersley intended to partition the 244-acre tract might well constitute a predicate for application of the doctrine of equitable apportionment. See Great Plains Oil & Gas Co. v. Foundation Oil Co., 137 Tex. 324, 153 S.W.2d 452.

The recorded plat is the only map of the Collins Tract Addition or Collins Addition to be found in the public records of Harris County. Its shape and outside dimensions conform in every respect except one to the. description of the 259-acre tract as set out in the Gregg deeds. In extending the lower south boundary of the Addition 22 varas, the maker of the plat undoubtedly was attempting to correct the discrepancy between the called lengths of the north and two south lines. The 22 varas should have been added to the upper south line, but it is clear that the plat was drawn on the basis of the field notes in the partition deed. There are 116 blocks shown on the plat, which is the number called for by the partition deed. The blocks bearing odd and even numbers form a checkered pattern. While there are several short blocks of varying sizes, these are so dimensioned that the total area of all even-numbered blocks is substantially the same as that of the odd-numbered blocks.

If the plat is not a copy of the Wood map, someone went to the trouble and expense of preparing and filing a drawing which differs from such map and yet conforms in a remarkable degree to information regarding the map that is found in the partition deed — a plat which, when taken in connection with the deed, works an eminently fair and advantageous division of the property. That this would have been done less than a year after the deed was executed and while the parties were still alive seems quite improbable. It is much more likely that a copy of the Wood map was drawn in the county clerk’s records by Thomas Kosse. The only evidence tending to identify Kosse is a deed recital indicating that he worked in W. R. Baker’s office.

Any doubt as to the authenticity of the plat is dispelled by the fact that the parties later recognized and adopted the same. It is in this respect that the present case differs from Welder v. Carroll, 29 Tex. 317, where the coincidences between a map in the office of the district surveyor and the one which should have been with the grants were held to raise a question for the jury as to whether such map either accompanied the grants or was the original plat from which copies to go with the grants were taken. By deed dated September 9, 1862, W. R. Baker conveyed to Gustav Erichson Blocks Nos. 28, 30, 32, 36, 38 and 40 “in the Collins Tract Addition to the City of Houston on the north side of Buffalo Bayou according to a map thereof recorded in Harris County Record of Deeds Book Z page 138.” Several years later Mrs. Gertrude E. Wright, formerly Gertrude E. Tankersley, joined by her husband, conveyed 52 odd-numbered blocks, ranging from No. 1 to No. 115, to Gustave Ranger. This deed recites that the blocks conveyed are part of 259 acres out of the J. S. Collins Survey “and the same property conveyed by deed of partition to G. E. Tank-ersley by William R, Baker as appears of record in Harris County Book Y page 393 less certain Blocks heretofore sold by G. E. Tankersley * * * and to better describe the property hereby conveyed, the plan of the subdivision into Blocks referred to in the deed of partition between W. R. Baker and G. E. Tankersley is hereby referred to as the description of the hereinafter mentioned blocks in what is known as Collins Addition to Houston.” There are also deeds from -the two children of B. F. and Gertrude E. Tankersley conveying their interest in 44 odd-numbered blocks, ranging from No. 5 to No. 115. One of these deeds recites that the blocks conveyed are “out of the Collins Addition to the City of Houston, County of Harris and State of Texas, according to the map or plat of same on record in the County Clerk’s office of said County.” According to the other conveyance the property is part of the J. S. Collins Survey and “designated on the map or plat of the subdivision of 259 acres of said survey as follows: [Blocks designated by number] of the Collins Addition to the City of Houston.”

In view of the long lapse of time and the circumstances mentioned above, we think the evidence in the present record establishes conclusively that the plat is a copy of the W. E. Wood map mentioned in the partition deed. “A reasonable certainty is all * * * the law requires. Conviction beyond all peradventure of doubt is unnecessary.” Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 249. This brings us to the question of how the plat should be located on the ground.

Although equitable apportionment has an obvious appeal as a solution for that problem, we have concluded that such doctrine cannot be applied here. Unlike the Great Plains case, there is nothing to suggest whether or where the boundaries of the land Baker and Tankersley expected to divide were located on the ground at the time. And we find no evidence to support the conclusion that they intended for the plat either to begin or stop on the north line of the S. M. Harris Survey. If, as contended by some of the parties, it were proper to lay the plat out on the ground from south to north, beginning with the north line of the S. M. Harris and giving each block and street its full platted dimensions, some 24 acres immediately north of the upper south line of the 259-acre tract would be left unplatted and undivided. This could hardly be in accordance with the intention of the parties at the time they made their division.

It is argued that the south line of Labadie Street as shown on the plat was meant to be the north line of the S. M. Harris Survey, because the partition deed and other instruments in the chain of title describe the 259-acre tract as being part of the Collins Survey. We do not agree. In each of the deeds the general statement is followed by a specific metes and bounds description which does not call for either the south line of the Collins or the north line of the S. M. Harris. The boundaries of the 259-acre tract, when located by the beginning corner, courses and distances set out in the Gregg deeds, include about 15 acres of the S. M. Harris Survey, and this is needed to make up the quantity of land which the parties said was being conveyed. There is thus a conflict between an inadequate general description on the one hand and a legally sufficient particular description reinforced by a specifically designated quantity of land on the other. Under such circumstances the particular description ordinarily prevails over the general. See Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003; McAnally v. Texas Co., 124 Tex. 196, 76 S.W.2d 997; Tucker v. Angelina County Lumber Co., Tex.Com.App., 216 S.W. 149; Annotation, 72 A.L.R. 410.

If Charles B. Stewart had owned the S. M. Harris Survey by conveyance from the record owner or by adverse possession, the Gregg deeds would have effectively conveyed the entire 259-acre tract described therein. It does not appear that the survey lines were marked on the ground when the division was made. Since the evidence does not show when Labadie Street was opened or by whom it was named, the fact that a street by that name now runs along the north line of the S. M. Harris Survey does not tend to show that it was one of the boundaries Baker and Tankersley had in mind. Neither the numbers of the blocks in the Addition nor the location of a street in an adjoining subdivision platted nearly 85 years later is of any real significance in that respect.

When the partition deed and other instruments in the chain of title are read in connection with the plat, it seems clear to us that the parties intended to divide the tract of land which they thought was conveyed by the Gregg deeds. Such tract is bounded on the east by the east line of the Collins Survey, on the north by the north line of such Survey, and is dimensioned as shown on the plat. Baker and Tankersley were mistaken as to their title, but it cannot fairly be said that the causes contributing to such error operated equally on all parts of the plat. When title fails to part of a tract which has been platted or otherwise subdivided as intended by those who thought they owned the same, there is no rule of law requiring one remote grantee to share his land with another.

The plat can and should be located on the ground by placing the northeast corner of the platted area, i. e. the intersection of the north line of Adams Street and the east line of York Street, at the northeast corner of the J. S. Collins Survey. The north and east lines of said streets, respectively, coincide with the corresponding lines of such Survey. The streets, blocks and lots in the Addition should be laid out from these points of reference in accord-anee with the detailed dimensions shown on the recorded plat. Although this is the locative theory of the surveyor Atkinson, no weight has been given to his argumentative conclusions. We agree with him, however, that it is the only theory that is consistent with the facts disclosed by the record. Since Baker and Tankersley apparently did not own the approximately IS acres out of the S. M. Harris Survey covered by the plat, the record title to all blocks and parts of blocks lying in that Survey will necessarily fail. The record title to the east 22 varas of Lot 8, Block 53, and of Blocks 49, 50, 51, and 52 will also fail.

Thus far we have been considering questions which the trial court set out to determine in this severed cause. When the severance was ordered, the district judge stated that he was acting under the provisions of Rule 174, Texas Rules of Civil Procedure, which authorizes the court, in the furtherance of convenience and to avoid prejudice, to order a separate trial of any claim or issue. The court probably was led into such error by the opinions of this and other courts in which the terms “separate trial” and “severance” have been treated as synonymous. For a comparison of the two terms and an analysis of the Texas decisions, see Hall, “Severance and Separate Trial in Texas,” 36 Texas Law Review 339. As there pointed out, severance is dealt with by Rule 41, which provides that “any claim against a party may be severed and proceeded with separately.” A severance divides the lawsuit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment. The separate trial contemplated by Rule 174 results in an interlocutory order determining the claims or issues so tried, but there is only one final judgment which is entered after all claims and issues involved in the suit have been tried.

An issue that is tried separately under Rule 174 need not constitute a complete lawsuit in itself. Severance is proper, however, only where the suit involves two or more separate and distinct causes of action. Each of the causes into which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controversy. See Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438; Pierce v. Reynolds, Tex., 329 S.W.2d 76. A severable cause of action may be tried separately under the provisions of Rule 174, but an issue that might properly be the subject of a separate trial is not necessarily severable.

The present case demonstrates the soundness of these rules. Its presentation and consideration on appeal has been considerably complicated by the fact that the parties are unable to determine the effect of the trial court’s conclusions on their individual claims. The location of the perimeter lines of the Collins Tract Addition is not an independent cause of action. It is merely one of the subsidiary questions that must be resolved in passing upon the title to specific lots and blocks in the Addition. The order of severance fragments the case instead of splitting it along a proper line of cleavage. Objection having been made in the trial court and the point having been preserved in the Court of Civil Appeals, we hold that the severance was erroneous and that the severed causes must be reconsolidated. Any statements in our former opinions indicating that Rule 174 deals with severance are incorrect and should be disregarded.

In disposing of this case, the trial court must be free to consider and adjudicate the claims of all parties, many of which are interwoven and dependent upon each other. The judgment of the Court of Civil Appeals is accordingly modified to provide expressly that the reversal and remand shall be effective as to all parties, including those who appealed and those who did not appeal. See Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385. The judgment of the intermediate court as so modified is affirmed, but the district court will be governed by this opinion. We recognize that the evidence on the second trial may be different from that found in the present record, and in that event the district court must determine whether such evidence warrants or requires conclusions different from those here expressed.


author: MORRISON, Judge.

text:
    Ex parte Sammy J. DOWNEY.
    No. 34038.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1961.
    No attorney for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, an inmate of the penitentiary, seeks his release by writ of habeas corpus alleging that he has served the sentences against him. From the record we learn the following :

On August 6, 1956, relator was convicted in the 47th District Court of Potter County in Cause No. 9734 for the felony offense of driving while intoxicated and was sentenced to five years but the execution of such sentence was probated and relator was placed on probation. Subsequently, on May 5, 1958, relator was convicted of a felony in Cause No. 695 in the District Court of Ochiltree County and sentenced to four years and six months. Thereafter, on January 22, 1959, the District Court of Potter County entered an order revoking probation in Cause No. 9734 and ordered that such sentence should commence after relator had served the term in Cause No. 695. It is this order which relator attacks and claims the right to be released because he has served in excess of four years and six months.

We are not dealing with a case in which the imposition of sentence was suspended, but here we have a case in which a man was sentenced on August 6, 1956, and then after revocation was re-sentenced on January 22, 1959, in the same case.

After the expiration of the 1956 term of court, the trial court could not add further conditions to such sentence which were not, and under the facts could not have been, a part of the sentence at the time it was imposed.

Ex parte Minor, 167 Tex.Cr.R. 170, 319 S.W.2d 114, presents an identical situation and requires that the writ of habeas corpus be granted and relator ordered discharged.

It is so ordered.


author: WOODLEY, Presiding Judge.

text:
    William Carrol PERRY, Appellant, v. STATE of Texas, Appellee.
    No. 33480.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    Raeburn Norris, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

The indictment was returned August 5, 1960, and trial was had November 18, 1960.

The undisputed evidence showed that on August 30, 1959, the date of the killing, appellant was 16 years of age, and the court in his charge gave effect to Art. 31, P.C., which provides that a person, for an offense committed before he arrived at the age of 17 years, shall in no case be punished with death.

The evidence shows without dispute that, shortly before 1:00 A.M. on the night in question, the appellant and William Bagley secured a pistol and boarded a Houston Transit System bus for the purpose of robbing the operator.

After riding a short distance, the appellant and Bagley signaled for a stop, walked to the front of the bus, demanded the money from the operator and took the money changer containing some $3.70, and the transfer punch. Appellant then shot the operator twice with a .22 caliber pistol, causing his death shortly thereafter.

Prior to announcing ready for trial appellant filed five motions to quash the indictment herein, all based upon the fact that the appellant was adjudged to be a juvenile delinquent and committed to the custody of the Texas Youth Council upon a petition filed in Juvenile Court alleging that he unlawfully carried a pistol at the same time and place the indictment alleged that he murdered the deceased.

Evidence was introduced upon said motions, and all were overruled.

The evidence shows without dispute that a petition was filed in Juvenile Court on September 15, 1959, alleging William Car-rol Perry to be a delinquent child “in that on or about the 30th day of August, 1959, he did unlawfully carry on and about his person a pistol” and he was committed to the custody of the Texas Youth Council; that on September 14, 1959, William Bagley was indicted for the murder of the bus driver but the grand jury, being informed that he was 16 years of age, took no action against the appellant; that a new grand jury is empaneled in Harris County every three months; that the case against the appellant was next presented to the grand jury for the August 1960 term, the district attorney having purposely waited until the appellant was 17 years of age before presenting the matter; that the appellant became 17 years of age on August 3, 1960, and was indicted on August 5,1960.

It is settled law in this state that one who commits a crime at an age within that prescribed by the juvenile law is, nevertheless, amenable to criminal prosecution for that crime upon attainment of the age of 18 years in case of a female person, and 17 years in case of a male person. Dendy et al. v. Wilson et al., 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217; Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983; Elliott v. State, Tex.Cr.App., 324 S.W.2d 218; Peterson v. State, 156 Tex.Cr.R. 105, 235 S.W.2d 138; and Roberts v. State, Tex.Cr.App., 219 S.W.2d 1016.

The cases cited sustain the trial court’s action in overruling the motions to quash the indictment.

Art. 180, C.C.P., provides that an indictment for murder may be presented at any time.

The responsibility for presenting indictments in felony cases in this state rests upon the various grand juries which, with or without the consent, knowledge or participation of their district attorneys, have full power to investigate suspected offenses and to return such indictments as they see fit. No district attorney has authority to compel a grand jury to return an indictment nor power to prevent their doing so.

Appellant seeks to distinguish the Dearing case by the fact that Dearing was adjudged a juvenile delinquent for acts not connected with the offense for which he was indicted. Even though we should agree that the juvenile court judgment was a conviction for the offense of unlawfully carrying a pistol, it is well settled that such a conviction would not bar a subsequent conviction for murder, though the pistol was used in the killing and both offenses were alleged to have been committed on or about the same day. Nichols v. State, 37 Tex.Cr.R. 616, 40 S.W. 502; Ford v. State, Tex.Cr.App., 56 S.W. 918; Young v. State, 87 Tex.Cr.R. 184, 222 S.W. 1103; Thomas v. State, 40 Tex. 36.

The judgment is affirmed.


text:
    Roosevelt WILEY, Appellant, v. STATE of Texas, Appellee.
    No. 33521.
    Court of Criminal Appeals of Texas.
    June 7, 1961.

      Jack C. Altaras, Gean B. Turner, Cleburne, for appellant.
    Justin A. Kever, Dist. Atty., San Angelo, Glyndon M. Hague, Dist. Atty., Cleburne, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, death.

A prior death penalty conviction against this appellant was reversed because of certain jury misconduct and procedural errors. Wiley v. State, Tex.Cr.App., 332 S.W.2d 725.

It was shown that truck driver Canada was in the habit of carrying large sums of money on his person in the form of bills of large denomination; that he had a regular route from San Angelo to Sterling City, with intermediate stops, for the Gandy Milk Company; that he left San Angelo at 5:00 A.M. on the morning in question; that appellant and another colored man were seen to abandon Canada’s truck many miles farther north of Sterling City in the residential section of the City of Big Spring at approximately 8:30 A.M. on the morning in question. They immediately purchased two new suits of clothes with bills of large denomination, and some jewelry; took a bath, changed clothes, and stated that they were on their way to Houston. They were arrested before leaving Big Spring.

Appellant and his companion made both oral and written confessions, but appellant’s written confession was not introduced in evidence. Appellant’s companion, who was serving a life sentence for the crime in question, testified fully as to appellant’s participation therein.

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

We shall discuss the facts more fully in connection with the contentions advanced by counsel by brief and in argument.

It is first contended that the court erred in permitting the introduction of the large sum of money found on appellant’s person following his arrest on the grounds that such arrest was illegal. In the absence ■of the jury on the issue of probable cause, the court heard testimony from the officers concerning reports they had received about the Gandy truck having been abandoned in the residential section of Big Spring, many miles away from its usual route; about the fact that Gandy did not employ colored drivers, but that two colored men were seen walking away from the truck as it was parked; about two colored men soon thereafter buying complete new clothing ensembles plus some jewelry and stating that they were on their way to Houston, plus the fact that they had rented a cab, had gone to a house, taken a bath and had left their old clothes. This, we have concluded, constituted probable cause to believe that the truck had been stolen and that the thieves were preparing to flee and authorized their arrest without a warrant. See Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W. 2d 41; Warren v. State, 130 Tex.Cr.R. 456, 94 S.W.2d 463; Ware v. State, 151 Tex.Cr. R. 228, 207 S.W.2d 868; and Williams v. State, 155 Tex.Cr.R. 439, 236 S.W.2d 136.

Appellant’s next complaint requires a more thorough discussion of the facts. He alleges that the court erred in admitting the oral confession of appellant which led to a discovery of the body of the deceased. Immediately upon their arrest, appellant and his companion McDade were taken to the courthouse, were placed in separate rooms, and were questioned by different teams of officers.' Within a matter of • minutes, McDade confessed, but told the officers that they had left the body of the deceased three to five miles from Sterling City. He made no mention of the proximity of a furniture truck which they had stolen in Odessa the previous evening to the place where they hijacked and killed the deceased. The officers relayed this information to other officers on the ground, who searched the area mentioned with negative results. They then took McDade into the room where they were questioning appellant and informed appellant that McDade had told all; some few minutes later appellant told the officers that they had left the body of me deceased across the railroad track some 300 feet from the furniture company truck ten or fifteen miles southeast of Sterling City. This information was relayed to the officers making the search, and the body was found. This, we have concluded, made the oral confession admissible. Williams v. State, 115 Tex.Cr.R. 28, 27 S.W.2d 233; Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831; Warren v. State, supra;. Coleman v. State, 151 Tex.Cr.R. 582, 209 S.W.2d 925; and Grimes v. State, 154 Tex.Cr.R. 199, 225 S.W.2d 978.

Appellant’s last complaint relates to argument. No objection was made. In King v. State, 156 Tex.Cr.R. 508, 243 S.W. 2d 846, a death penalty conviction, we held no reversible error was reflected by argument not objected to where no mandatory provision of the statutes is violated and no new and harmful fact is injected into the case.

Finding the evidence sufficient and no reversible error appearing, the judgment of the trial court is affirmed.


text:
    Francis Earl BULLOCK, Appellant, v. STATE of Texas, Appellee.
    No. 33442.
    Court of Criminal Appeals of Texas.
    May 24, 1961.

      Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Jack Pevehouse, George Milner, Jr., Phil Burle-son, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is negligent homicide; the punishment, a fine of $1,500.

The complaint and information alleged that appellant was engaged in the performance of the unlawful act of operating an automobile “on Walton Walker Boulevard, at a point and place thereon between the City limits of the City of Dallas South of Jefferson Blvd., there situate, and Mountain Lake Road, in the City of Dallas, ⅜ * *_ 1!

We overrule appellant’s first contention and hold that this was a sufficient allegation that the place referred to was in the City of Dallas.

The complaint and information further alleged, in part, that at such place and point appellant drove said automobile “at a rate of speed in excess of 50 miles per hour, the maximum lawful rate of speed at such place and point on said boulevard established by ordinance of the City of Dallas, a municipal corporation under the laws of the State of Texas” and while in the performance of said unlawful act, through negligence and carelessness, caused the death of John Motten Rhodes.

It was further alleged that appellant did so drive such motor vehicle that it, moving at such unlawful rate of speed, struck and collided with an automobile driven by one Lester David Hueris, and following said collision and before the motion of the same was arrested, said vehicle driven by appellant struck and collided with a motor vehicle driven by Ann Sleeth, in which John Motten Rhodes was a passenger, and that John Motten Rhodes was thereby killed.

There was also allegation that “the body and person of the aforesaid John Motten Rhodes was then and there wounded, mangled and crushed.”

The appellant summarizes the evidence in his brief, from which we quote:

“A summary of the State’s evidence shows that on the early morning of May 13, 1959, appellant was driving a 1949 model Plymouth automobile north on Walton Walker Road in the City of Dallas, Texas, at a speed of between 70 to 90 miles per hour; that he first struck an automobile (front to back) driven by one Pluens traveling in the same direction, then veered to the left and collided head on with a Chevrolet sedan traveling south driven by Miss Ann Sleeth. Decedent, John Motten Rhoades, aged 72, was a passenger riding in the back seat of Miss Sleeth’s car.

“Both appellant’s and Miss Sleeth’s automobiles were demolished. Appellant, Miss Sleeth and a lady passenger riding the front seat of Miss Sleeth’s car were all seriously injured and hospitalized.

“Decedent, John Motten Rhoades, was found dead in the back seat of Miss Sleeth’s car when police arrived at the scene five minutes after the accident. A Mr. Hancock who was also riding the back seat of the Sleeth car was uninjured.”

The sufficiency of the evidence is questioned, appellant’s proposition being that there is no proof as to the cause of John Motten Rhodes’ death, and no evidence that his body was wounded, mangled or crushed.

There was evidence that before the accident John Motten Rhodes “was in good health. He was on the job every day. He was full of energy and life and seemed to be in good health.”

The automobile in which Mr. Rhodes was riding was hit head on by the automobile appellant was driving. Both cars were “demolished.” Mr. Rhodes had a bleeding laceration on his forehead. The officers, who arrived shortly after the accident, “found no pulse, no heart beat, no breathing.” He was pronounced dead upon arrival at the hospital.

Mr. Rhodes was sitting behind the driver, Miss Sleeth, who survived the accident but was rendered unconscious. She gave this description of her injuries: “* * * my face was crushed here (indicating), was cut here (indicating) and I was cracked here (indicating). It was crushed here on this; side and was all distorted, pushed around this way, my teeth were knocked out and my lip was cut clear through, here and here, I had ribs broken on both sides, and had a. broken pelvis and a broken leg, and a real bad cut here (indicating).”

Mrs. Blake, seated beside Miss Sleeth, suffered a crushed knee, her pelvis was broken in several places, her chest was. “smashed”, she had lacerations on her chest, arm and shoulder, and her right shoulder and right foot were injured.

There is nothing in the record to suggest or show any intervening cause, and we deem the evidence sufficient to sustain the allegation that John Motten Rhodes’ death resulted from the collision. Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381; Dempsey v. State, 163 Tex.Cr.R. 96, 289 S.W.2d 238.

The absence of evidence to sustain the allegation of the information that Mr. Rhodes’ body was “mangled” and “crushed” does not constitute a fatal variance. Such allegations may be treated as surplusage. Hilty v. State, 120 Tex.Cr.R. 304, 49 S.W.2d 786.

Appellant next complains that his request for a charge on circumstantial evidence was refused. We do not agree that such charge was necessary under the evidence stated. Landry v. State, 156 Tex.Cr.R. 350, 242 S.W.2d 381; Jarnigan v. State, Tex.Cr.App., 345 S.W.2d 754.

It is also contended that the trial court erred in refusing to submit to the jury the defensive theory that the accident was unavoidable and occurred while appellant was driving at a lawful speed.

The court’s charge required the jury to find, in order to convict, that appellant was engaged in an unlawful act, to wit, operating an automobile on a public road in the City of Dallas at a speed greater than the maximum legal speed at said location as fixed and provided by ordinance of the City of Dallas.

Evidence was introduced showing such maximum speed to have been fixed at 50 miles per hour, and appellant testified and the state’s evidence shows that he was exceeding said speed limit.

In view of the evidence, appellant’s testimony to the effect that his brakes failed to work, if true, would not constitute a defense. Menefee v. State, 129 Tex.Cr.R. 375, 87 S.W.2d 478. We see no error.

The remaining claim of error relates to the cross-examination of appellant, the contention being that a mistrial should have been granted when he was questioned about having been arrested for theft.

Objection was sustained to the question, but appellant’s motion for mistrial was overruled.

These facts alone would raise a serious question. However, the record shows that appellant testified on direct examination that he had never “been convicted of any offense whatsoever” in his whole life, and when he was asked on cross-examination if he intended to include anything “in the way of arrest which did not result in any convictions,” appellant’s counsel stated in effect that he had no objection if the question was asked in good faith. When appellant was again asked about an arrest for investigation of theft, appellant’s objection was sustained and the jury instructed to “not consider the questions as to arrest.” Motion for mistrial was then made and overruled. Under the record, we find no error calling for reversal.

The judgment is affirmed.