author: BARROW, Justice.

text:
    CITY OF CORPUS CHRISTI, Texas, Appellant, v. MISSOURI IMPROVEMENT COMPANY, Appellee.
    No. 13819.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1961.

      I. M. Singer, Corpus Christi, for appellant.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellee.
   BARROW, Justice.

This suit was brought by appellee, Missouri Improvement Company, against appellant, City of Corpus Christi, Texas, in statutory form of trespass to try title, seeking to recover title to a strip of land 60 feet wide and approximately 1,100 feet long, which land is now a portion of Lipan Street, one of the main streets of the City of Corpus Christi. Appellee’s suit is based upon the provisions of a deed dated November 8, 1950, wherein Missouri Improvement Company conveyed to the City of Corpus Christi that strip of land for street purposes, subject to the following conditions :

“(a) That the said premises be used solely and exclusively as a public street, and for no other purpose ;
“(b) That no assessment shall be levied, for a period of twenty-five (25) years from the date of these presents, upon any property abutting the property hereby conveyed, to cover any portion of the cost of grading, paving, curbing, or drainage (including storm sewers and gutters placed on, upon and along or under the property so conveyed) or any part of the cost of the maintenance of the said property as a public street.”

These conditions were followed by a provision for forfeiture and reversion of the land in the event of a breach thereof. It was upon an alleged breach of the conditions that appellee sought recovery of the title to said strip of land.

The appellant answered by plea of not guilty and various defenses not material to this appeal, and by cross-action sought to recover judgment upon two certificates of special assessment for street improvement of Lipan Street, assessed against ap-pellee as an abutting property owner.

Both parties presented motion for summary judgment. The trial court had before it on the hearing of the motions, the pleadings of the parties, a map of Lipan Street prepared by the City Public Works Department, showing the property involved, the abutting property, and certain improvements hereinafter discussed, the “paving assessment” rolls, and the affidavits of Sam Davidson, Engineer of the City Public Works Department, and Drahn Jones, Director of the City Public Works Department. The trial court overruled appellant’s motion and sustained appellee’s motion, but denied appellee a recovery of title to the land and limited recovery to holding for naught and setting aside the paving assessments claimed by appellant against appellee’s abutting property.

The following undisputed facts are shown by the record in this cause: Shortly after the execution of the deed from appellee to appellant, the appellant entered upon the strip and installed storm sewers and constructed a paved street 40 feet wide in the center of the strip, leaving a strip 10 feet wide on each side of the street. The record does not reflect what was done with the two narrow strips, except that Sam Davidson, in his affidavit, said that the entire sixty-foot strip had been used for no other purpose than for street purposes. About the month of August, 1958, appellant repaired Lipan Street, including the strip involved herein, by repaving the forty-foot center strip, and constructed a concrete sidewalk adjacent to the property line on each side of the street, together with driveways into the various properties, including that of appellee, on each side of the street, leaving a six-foot strip between the sidewalk and the paved street. In connection with said improvements, appellant by ordinance dated August 27, 1958, levied a paving assessment against abutting property owners, including appellee, to pay a part of the cost of such improvements. On the 29th day of April, 1959, appellant issued two paving certificates against ap-pellee’s abutting property, one against the property on the north side of the street for the sum of $2,036.22, and one against the property on the south side for the sum of $1,940.17. Appellee filed this suit within fifteen days after the adoption of the above mentioned ordinance.

Appellant makes but two main contentions on this appeal. The first contention is that inasmuch as appellant levied the assessment in accordance with the provisions of Article 1105b, Vernon’s Tex.Civ. Stats.,, and appellee did not appeal from its action within fifteen days after the adoption of the City ordinance, as provided in Sec. 9 of said Article, appellee is barred and estopped from making any attack on the validity of the paving certificates. We overrule that contention. Sec. 9 of Article 1105b, provides:

“Anyone owning or claiming any property assessed, or any interest therein, or any railway, street railway, or interurban assessed, or any interest therein, who shall desire to contest any such assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto, or with reference to such improvements, or on. account of any matter or thing not in the discretion of the governing body, shall have the right to appeal therefrom and from such hearing by instituting suit for that purpose in any court having jurisdiction within fifteen (15) days from the time such assessment is levied; * * (Emphasis added.)

The section then provides that anyone who shall fail to so appeal shall be barred and estopped from contesting or questioning said assessment. The statute is broad in its terms and does not attempt to prescribe the type or manner of suit, so long as the nature of the suit brings into question the right of the City to make such assessment. It is not questioned that appellee’s suit was filed within the fifteen-day period, but appellant contends that it is not an appeal as provided by Sec. 9, supra. We do not agree. The suit is in statutory form of trespass to try title. It is broad in scope, and in this case it places in issue the question of whether or not there has been a breach of the express condition in the deed, so as to revert title in appellee, and therefore directly places in issue appellant’s right to make the assessment involved. See, Article 7364, Vernon’s Tex.Civ.Stats., and Rule 783 et seq., Texas Rules of Civil Procedure. Undoubtedly, the issue of the validity of the assessment was raised in this suit.

Appellant’s second contention is that under the undisputed facts shown on motion for summary judgment, it has not .breached any of the conditions contained in the deed and, therefore,, it is entitled to judgment both on appellee’s suit and on its cross-action as a matter of law. Having heretofore stated that the material facts are not in dispute, it remains only to be determined which of the moving parties is entitled to judgment. In connection with appellant’s second contention, it argues that it is using all of the sixty-foot strip exclusively for street purposes. At the same time it argues that sidewalks and driveways are not streets, and therefore paving sidewalks and driveways are not paving within condition (b) of the deed. In our opinion, these arguments are so obviously contradictory that they cannot both be true. Under the plain unambiguous terms of the deed, appellant obligated itself to use all of the sixty-foot strip exclusively for street purposes, and for no other purpose. And under equally plain terms it obligated itself not to levy any assessment against appellee for a period of twenty-five years, “to cover any portion of the cost of grading, paving, curbing, or drainage (including storm sewers and gutters placed on, upon and along or under the property so conveyed) * * If, as appellant argues in the first instance, sidewalks and driveways are no part of the street,, then appellant has breached the first condition in the deed; but if, on the other hand, as argued in the second instance, the entire sixty feet is being used exclusively for street purposes, and no other purpose, then the assessment made by appellant to pay the cost, or any part of the cost, of paving sidewalks and driveways located wholly on the sixty-foot strip, falls within the second condition in the deed. However, we are of the opinion, under the facts in this case, that sidewalks and driveways so located must he considered as a part of the street. Grapotte v. Adams, 130 Tex. 587, 111 S.W.2d 690. Under the facts in this case, appellee is entitled to one of two remedies: (1) to have a forfeiture declared and have the title to the land revert to it; or (2) to enforce the contract and require that paving be done at the expense of the City. Appellee makes no complaint of the court’s refusal to declare a forfeiture. Appellant is in no position to complain of the court’s judgment requiring it to comply with its contract. We think it is important here to note that appellant makes no contention that its act in making said contract and accepting said deed, whereby it waived its right to exercise the authority to assess appellee’s property under the provisions of Article 1105b, is ultra vires.

The judgment is affirmed.


source: Caselaw Access Project

author: HAMILTON, Justice. SMITH, Justice

license: Public Domain

text:
    REPUBLIC NATIONAL BANK OF DALLAS, Independent Executor of the Estate of Ray K. Glenn, Deceased, Petitioner, v. Leonard STREALY, Respondent.
    No. A-8331.
    Supreme Court of Texas.
    Nov. 1, 1961.
    Rehearing Denied Dec. 6, 1961.

      Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, with firm, for petitioner.
    Elmo Irby, Fort Worth, for respondent.
   HAMILTON, Justice.

This case involves the question of the legal effect of a negotiable instrument where the place of payment had been left blank but was filled in by the holder without express authority of the maker.

On December 31, 1953, Leonard Strealy executed a note in the principal sum of $8,838.15, payable to the order of Ray K. Glenn “at-”. At the time of making delivery of the said note both parties lived in Fort Worth. Later Glenn moved to California and then to Dallas, where he died about four years after the date of the note. The Republic National Bank of Dallas, the petitioner here, became independent executor of his estate. Payment on the note had always been sporadic, but shortly after Glenn’s death Strealy signed an agreement with the Republic National Bank agreeing to make regular payments. After several payments to the bank Strealy once again became delinquent. On October 9, 1958, the bank sued Strealy in the District Court of Dallas County for the balance claimed to be owing on the note. Strealy filed a plea of privilege to be sued in Tarrant County, the county of his residence. After the plea was filed, counsel advised the bank that it had the right to insert the words “Dallas, Texas” in the blank space in the note after the word “at”, thus indicating that the note was made payable in Dallas. This was done, and the bank’s attorney immediately notified the respondent and his attorney of the filling in of the blank and of the legal authority upon which they had relied. However, before any action was taken on the plea of privilege, the petitioner took a nonsuit in the Dallas County action and commenced this suit in the 153rd District Court of Tarrant County, Texas.

Petitioner’s cause of action was based upon a verified account and alternatively on the note, alleging the balance owing on the note to be $3,640.36. Strealy did not file a general denial, but pleaded that the verified account was untrue in whole or in part and that the note was avoided by the action of the bank in filling in “Dallas, Texas” in the space in the note left blank for the place of payment; that such action constituted a material alteration of the note, that it was fraudulently done, and that it discharged respondent from liability on the note and underlying debt. The substance of Strealy’s testimony was that he had not given any express authority for anyone to fill in the blank space with a place of payment.

The bank’s motion for directed verdict was overruled, the court submitted a single special issue to the jury, and the jury answered that the action of the plaintiff in writing “Dallas, Texas” into the note in question was for the sole purpose of fraudulently preventing the transfer of the suit to Tarrant County. Petitioner’s motion for judgment non obstante veredicto was overruled and judgment was rendered that petitioner, Republic National Bank, take nothing. This judgment was affirmed by the Court of Civil Appeals, which held that the petitioner avoided the note by materially altering it and thereby also avoided the underlying debt because the alteration amounted to a species of legal fraud. 343 S.W.2d 284. We reverse the judgments of the trial court and Court of Civil Appeals and render judgment for petitioner.

The bank contends that the insertion of a place of payment in a blank space provided for that purpose is not a material alteration as defined in Section 125 of Article 5939, Texas Civil Statutes (Vernon 1948), and that it had the right to fill in such blank under Section 14 of Article 5932, and that regardless of its legal right to do what it did there was no evidence of fraud on its part. Respondent, Strealy, contends that Sections 124 and 125 of Article 5939 control, and that the filling in of the blank space was a material alteration which avoids the instrument and that such action constituted fraud, which discharges the underlying debt.

We hold that Section 14 of Article 5932 governs in this case.

Section 124 of the Negotiable Instruments Act (Art. 5939, V.C.S.), provides that “Where a negotiable instrument is materially altered * ⅜ * it is avoided * *

Section 125 of the Negotiable Instruments Act (Art. 5939, V.C.S.) defines a “material alteration” as:

“Sec. 125 Any alteration which changes:
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“3. The time or place of payment;
* ⅜ * * * ⅝
“Or which adds a place of payment where no place of payment is specified, * * * is a material alteration.”

The filling in of blank spaces of negotiable instruments is governed by Section 14, Article 5932, V.C.S., which reads:

“Where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein. And a signature on a blank paper delivered by the person making the signature in order that the paper may be converted into a negotiable instrument operates as a prima facie authority to fill it up as such for any amount. In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up strictly in accordance with the authority given and within a reasonable time. But if any such instrument, after completion, is negotiated to a holder in due course, it is valid and effectual for all purposes in his hands, and he may enforce it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.”

At first glance it might appear that these sections are in conflict. Section 14 authorizes completion of the instrument by the filling in of blanks, but Section 125 says that the adding of place of payment where no place of payment is specified is a material alteration, and Section 124 says a material alteration will avoid the note.

The Legislature did not intend these sections to be in conflict, and if they can be reasonably harmonized so as not to be in conflict it is the court’s duty to so construe them. Hill v. State, 54 Tex.Cr.R. 646, 114 S.W. 117.

In order to resolve the seeming conflict between Sections 14 and 125 it is necessary to become involved with semantics. Section 125 talks only of “changes” and “additions” which constitute a material alteration. Section 14 deals with “completions” by filling up blank spaces left in the instrument. In construing this language it appears probable that the Legislature intended “changes” to mean the marking out, erasing, detaching, or writing over of parts of an already completed instrument, and the word “addition” to mean the insertion of a new clause or wording where no blank is provided. See for example cases and annotations in 5 Uniform Laws Annotated (Part 2), Section 125 (Uniform Negotiable Instruments Act). We believe that Section 125 is not applicable to completing a note by filling in of blanks.

In the case of Citizens’ State Bank of Earlham v. Martens, 204 Iowa 1378, 215 N.W. 754, 757, The Supreme Court of Iowa was also faced with the problem of a conflict between Section 14 and Sections 124 and 125. That court said:

“ * * * "When harmony, uniformity, and enforcement of all portions of the act are possible, it is our duty so to proceed in order that no part will be discarded and the entirety made effective. Truly, a material alteration will work an avoidance; also 'change of place of payment’ may amount to such ‘material alteration’; but not so if the transaction involves the ‘filling in’ of a blank intended therefor, within the purview of said Section 9474. * * * [Sec. 14 NIL]
* * * * * *
“Therefore Section 9474 [Sec. 14 NIL] prevails where the facts and circumstances are such as are therein contemplated, and in that contingency sections 9585 and 9586 [Secs. 124 and 125 NIL] have no bearing on the situation.”

Therefore, if the filling in of a blank is not a material alteration under Section 125, Section 124 would not apply to avoid the note, as it applies only “where a negotiable instrument is materially altered * *

Another indication of the intention not to call “filling in the blank” a “material alteration” can be derived from comparing the legal effect of a materially altered note in the hands of a holder in due course not a party to the alteration (Sec. 124), with a note that has had a blank filled in contrary to authority given or not within a reasonable time and then negotiated to a holder in due course (Sec. 14). In the first instance the innocent holder can enforce payment of the note, but only in the amount of the original tenor. Whereas, in the case of an unauthorized filling in of blanks, when it is negotiated to a holder in due course after the unauthorized completion, “it is valid and effectual for all purposes in his hands, and he may enforce .it as if it had been filled up strictly in accordance with the authority given and within a reasonable time.” Sec. 14. If filling in the blanks is a material alteration, would not Section 124 allow a holder in due course to enforce payment of a note only according to its original tenor? What then would be the effect of the last sentence of Section 14? In order to harmonize these two sections of the Negotiable Instruments Act, we must say that the filling in of blank spaces is not an alteration; therefore, in cases involving the filling in of blanks left in negotiable instruments, Section 14 must be applied.

In applying Section 14 to petitioner’s act of filling in the words “Dallas, Texas” it must be determined whether this act was done strictly in accordance with the authority given. The general rule seems to be that where a writing containing unfilled blanks has been delivered there is implied authority to fill in the blanks, the instrument remaining valid. See Mazanec v. Lincoln Bonding & Ins. Co., 169 Neb. 629, 100 N.W.2d 881; Simpson v. First National Bank of Roseburg, 94 Or. 147, 185 P. 913, 917; Holman v. Higgins, 134 Tenn. 387, 183 S.W. 1008, L.R.A.1916F, 1263; Curlee Clothing Co. v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677; 7 Am.Jur., “Bills and Notes”, Sec. 67; 3 Tex.Jur.2d, “Alteration of Instruments”, Sec. 34; 10 C.J.S. “Bills and Notes” § 136c(3); 8 C.J. “Bills and Notes”, Sec. 315.

As this court pointed out in Curlee Clothing Co. v. Wickliffe, supra, the authority to fill .in the blank spaces in negotiable instruments did not originate in a uniform negotiable instruments law. The law is summarized in the Curlee case as follows [126 Tex. 573, 91 S.W.2d 679]:

“Long before the Negotiable Instruments Laws was in force, the general rule was announced that where a party to a negotiable instrument intrusts it to the custody of another, with blanks not filled in, such negotiable instrument carries on its face an implied authority to fill in the blanks and perfect the instrument, so far as consistent with its printed words.”

Numerous authorities say that Section 14 of the Negotiable Instruments Law is declaratory of the common law. Saxon v. McGill, 179 Ark. 415, 16 S.W.2d 987; Diamond Distilleries Co. v. Gott, 137 Ky. 585, 126 S.W. 131, 31 L.R.A.,N.S., 643; Linthicum v. Bagby, 131 Md. 644, 102 A. 997; Stephens v. Underwood, Tex.Civ.App., 157 S.W.2d 936, no writ history; Brown v. Thomas, 120 Va. 763, 92 S.E. 977; 10 C. J.S. “Bills and Notes” § 136.

In Diamond Distilleries Co. v. Gott, supra, it is said [137 Ky. 585, 126 S.W. 132]:

“ * * * Manifestly a note executed and delivered by the maker in the form originally presented by the one under consideration is not upon its face a completed instrument. When one executes and puts in the hands of another a note provided with a blank line or space, apparently intended to be filled with the name of a bank, or other place of payment, any holder in due course of the note has prima facie authority to fill such blank; and especially would such authority be implied where the blank line or space immediately follows a word which unmistakably indicates that it is to be filled with the place of payment. The word ‘at’ in the note executed by appellee with the blank or space following it was well calculated to produce in the minds of any holder of the note a reasonable belief that the filling of the blank with a place of payment was necessary to complete the instrument, and that he was authorized, if not invited, to fill it. Indeed, if the blank therein was not such a one as the framers of the statute, supra, contemplated should be filled by the ‘person in possession thereof,’ it would be difficult to conceive of a blank that would justify the prima facie right to fill it conferred by the statute.”

The Court of Civil Appeals held that the instant case is outside the scope of Section 14 because it concluded an instrument without a place of payment is not “wanting in any material particular”, a requirement of that section. No case was cited supporting such holding and we have found none. The precise point was considered by the Supreme Court of Iowa in Johnston v. Hoover, 139 Iowa 143, 117 N. W. 277, and the court specifically held that an instrument with the space for a place of payment left blank is wanting in a material particular. We agree with that holding.

The Supreme Court of Vermont in Howard National Bank v. Arbuckle, 92 Vt. 86, 102 A. 477, held that a “material particular” does not mean such as may be necessary to make the instrument a negotiable note, but includes “any particular” proper to be inserted in such an instrument.

Respondent contends that even if petitioner did have prima facie authority to fill in the place of payment, the prima facie authority was rebutted by the testimony that respondent did not give Glenn authority to fill in the blank and that both parties lived in Tarrant County at the time of the execution and delivery of the note. In the first place the authority under Section 14 is not given just to the payee in the note, but is given to any “person in possession” of the note. No one knows where any “person in possession” might live; therefore, the fact that both of the original parties to the instrument lived in Fort Worth creates no presumption as to place of payment. The testimony that the respondent did not give Glenn express authority to fill in the note amounts to no more than evidence that there was no agreement with reference to the filling in of the place of payment in the blank space. This is not sufficient to rebut the authority given by the statute to the possessor of the note. It can only be overcome by evidence of an express agreement as to a particular place of payment, or that no place shall be filled in.

In Citizens’ State Bank of Earlham v. Martens, supra, the maker of the note testified that he had left the place of payment blank and did not authorize anyone to fill in the place of payment in the blank. The Supreme Court of Iowa said:

“This is not sufficient to overcome the statutory presumption; for assertion is not made that the act was prohibited or in violation of an express agreement.”

See also: Simon v. Mittelman, 258 Mich. 266, 241 N.W. 816; State Bank of Finley v. Doronen, 50 N.D. 583, 197 N.W. 150; Lincoln Deposit & Trust Co. v. Sanker, 305 Pa. 576, 158 A. 255; Ellis J. Gomez & Co. v. Hartwell, 97 Vt. 147, 122 A. 461.

The provision of Section 14 which reads “In order, however, that any such instrument when completed may be enforced against any person who became a party thereto prior to its completion, it must be filled up * * * with the authority given and within a reasonable time”, appears to be in the form of a statutory condition precedent which must be pleaded in stating the cause of action. 33 Tex.Jur., “Pleadings”, Sec. 42. In his pleadings petitioner claimed authority under Section 14. If there is no express agreement with reference to such authority, then the prima facie authority granted by the first sentence of the statute acts to supply the “authority given”.

However, the statute supplies nothing to relieve the requirement of pleading and proving reasonable time as to the filling up of the blank on the part of the petitioner. It had the burden of pleading and proving this in the trial court. Petitioner failed to plead “reasonable time”, and it had no such issue submitted to the jury. Failure to meet this burden prevents petitioner from enforcing the note, as this court cannot say as a matter of law that the blank was filled up within a reasonable time.

However, it is the opinion of this court that the underlying debt in this instance has not been extinguished even though the note is unenforceable, The case of Otto v. Halff & Bro., 89 Tex. 384, 34 S.W. 910, which is a material alteration case (plaintiff scratched out “maturity” and wrote in “date”) and not a completion case, puts forth a test we think applicable when there is a question as to whether or not the underlying debt should remain when a note is made unenforceable through some action or inaction on the part of the holder.

Essentially this case says the debt is good unless there is a showing by the maker that there was an agreement or understanding that the note given was accepted as payment of the original account, or that there is fraudulent intent behind the action or inaction which made the note unenforceable. Neither of these requirements was met to avoid the debt in the case before us. There was no pleading of novation nor showing of any such agreement by respondent.

As to fraudulent intent, Otto v. Halff says the law will inflict the penalty of forfeiture of the debt if such intent is found. In the case at bar the petitioner filled in the blank space of the note on advice of counsel. This advice was given after consideration of competent legal authority which in fact did give petitioner authority to fill in the blanks. Petitioner immediately notified respondent of the action and even cited the authority on which reliance was made, thereby showing good faith in taking such steps.

The jury found against the petitioner, saying, “Such action was for the sole purpose of fraudulently preventing a transfer of the suit to Tarrant County, Texas”. Under the facts of this case, we find that there was no evidence of fraud on the part of the petitioner.

The Court of Civil Appeals relies on the case of Benson v. Adams, Tex.Com.App., 285 S.W. 818, in determining that petitioner was guilty of a “species of legal fraud”. [343 S.W.2d 287.]

The present case is distinguishable from Benson v. Adams. That case involved an obvious material alteration, i. e., the erasure of the words “at Plano” and writing in the words “at Houston”. In the instant case there was no material alteration, but a filling up of blanks authorized by statute.

In Benson v. Adams the petitioner testified that the notes were taken as payment of the goods and merchandise. In our case there is no evidence that the note was taken as payment for respondent’s debt.

Finally, citing among other cases Otto v. Half?, supra, Commissioner Bishop said:

“ * * * [I]t was necessary for him to show that the alteration was innocently made without any intention to defraud, and thereby rebut the presumption of fraud which arises from his wrongful act. (Cases cited.) * * * Adams testified that he knew he had no right to change the place of payment of the note. He knew he was committing a wrongful act which in law he had no right to commit. Certainly one cannot admit his guilt and at the same time claim innocence.” [285 S.W. 819.]

The case before us is obviously without testimony that the petitioner “knew he had no right to change the place of payment of the note.” In fact it is clear that petitioner thought he had the right to insert the words “at Dallas”, and relied on statutes and authorities to support this belief. Benson v. Adams does not apply in this case.

Respondent asserts that if the note is not good, the debt is barred by the two and four year statute of limitations. By letters written within two years of filing of suit, and by testimony in court, respondent admits the debt. Therefore the two year and four year statutes of limitation do not bar the debt in this case.

It is the opinion of this court that the note in question is unenforceable; however, the underlying debt remains. The judgments of the trial court and Court of Civil Appeals are reversed and judgment rendered for petitioner in the amount of $3,640.36, plus 6% interest from July 10, 1958.

SMITH, Justice

(concurring).

The filling in of blank spaces of negotiable instruments is governed by Section 14 of Article 5932, Vernon’s Annotated Civil Statutes of Texas. The insertion of a place of payment in a blank space provided for that purpose is not a material alteration as defined in Section 125 of Arti-cle 5939, Vernon’s Annotated Civil Statutes. Strealy pleaded that it was such a material alteration as to render the note void, and that the fraudulent action of the bank in filling in the place of payment discharged the underlying debt. We have held against such contention. In so doing, we have held that the bank was in legal possession of the note; that the note was wanting in a material particular, namely, the place of payment was not inserted in the blank space provided therefor at the time of delivery, -and that under such circumstances the bank had a prima facie authority to complete the note.

The bank pleaded that it acted "in good faith reliance on the law as plaintiff supposes it to be that plaintiff had implied authority to fill in the blank following the word ‘at’ on the promissory note executed hy defendant, filled in said blank with the words ‘Dallas, Texas’. Thus, plaintiff, suing on the note, asserts its claim based •either on the note as it existed before it was thus changed, or on the note after it was thus changed, alternatively.”

Of course, the bank sued alternatively upon the promissory note and upon the obligation underlying it. The bank also pleaded for attorneys fees in connection with •such alternative actions.

Strealy did not defend on the ground that the act of the bank in filling in the place of payment was not performed within a reasonable time. There are no pleadings and no evidence was tendered or introduced that Strealy suffered any injury as a consequence ■of the bank’s authorized act in filling in the blank space in the note. Strealy’s only defense was that the note was avoided because petitioner materially altered it.

Thus, it remains that the prima facie authority, granted by Section 14 of the Negotiable Instrument Act, to fill in an instrument wanting in any particular, can be overcome only by evidence of an express agreement or stipulation by the maker as to the place of payment. In the absence of such an agreement or stipulation by Strealy, it must be presumed that the bank was authorized to fill in “Dallas, Texas”, or any other place of its choice. The burden of proving such an express agreement and the violation thereof was on Strealy. See Citizens State Bank of Earlham v. Martens, 204 Iowa 1378, 215 N.W. 754 (Sup.Ct. Iowa).

Certainly, the note was wanting in material particular. See Howard National Bank v. Arbuckle, 92 Vt. 86, 102 A. 477, for a definition of “material particular” as used in the Negotiable Instrument Act. When the note was completed it was just as though “Dallas, Texas” had been a part of the note from its inception. The holder of the note was not only authorized to fill in the blánk and thereby complete the instrument, but the bank in this case was invited to do so. See Diamond Distilleries Co. v. Gott, 1910, 137 Ky. 585, 126 S.W. 131, 31 L.R.A.,N.S., 643. Not only that, the record in the present case shows that Strealy’s action was in accordance with his express agreement that he would make payments under the note to the bank in Dallas, Texas. However, the bank as the “person in possession” had, by statute, “prima facie authority” to type “Dallas, Texas” in the blank space, and was not required to rely upon the authority to do so, which is clearly evidenced by his letter of agreement of February 3, 1958.

It is true that under Section 14, N.I.L., the implied authority of the bank to fill in the blanks continued for “a reasonable time”. What “a reasonable time” is depends upon the circumstances of each case. See Article 5948, Section 193, Texas Negotiable Instrument Act. The fact that the blank was not filled in until after an action was commenced on the note, Allen v. Rousevill Cooperage Co., 157 Va. 355, 161 S.E. 50, or even that the blank had not been filled in until a trial was actually in progress, Cassetta v. Baima, 106 Cal.App. 196, 288 P. 830 would not mean that an unreasonable time had elapsed. The blank in our case was filled up within a reasonable time as a matter of law. This is especially true in the absence of any pleading or proof that Strealy suffered injury as a direct result of the delay of the bank in actually filling in the blank, an act which had been impliedly authorized upon delivery of the note. Why should the bank be required to prove that it acted within a reasonable time when there was no denial or claim that it had not so acted.

While in the case of Finley v. Rose, 189 Ky. 359, 224 S.W. 1059, 1060, it is not expressly held that the burden rests upon the maker of the note to prove that the blank space for place of payment was filled in within a reasonable time, no one can read the opinion without reaching the conclusion that such is the effect of the holding. In that case, the Court held that a delay of seven years in filling in a blank did not prevent recovery upon the note involved. The Court said:

“Manifestly, plaintiffs, as holders of the note, had the right to fill in the blank and make the note payable to themselves as executors, with the consequent right to bring the suit in their names. * * * In so holding, the original purpose of the parties is carried out and no right of the makers is injuriously affected. We therefore conclude that the insertion of the name of the deceased holder as payee was not fatal to a recovery on the note. * * * It is therefore insisted that the blank was not filled in within a reasonable time * * * but where, as in this case, only the name of the payee is left blank, and both of the jomt makers are alive, and the note has never been negotiated so as to cut off defenses, we are unable to perceive how the rights of the makers have been prejudiced by the delay of seven years.” [Emphasis added.]

No injury to Strealy has been shown in the present case. The argument that Strealy was caused injury by the suit being filed in Dallas County is untenable. In fact, the suit filed in Dallas County was dismissed, and the present cause of action was filed in Tarrant County, Texas, the County of Strealy’s residence. The case was tried to a court and jury in Tarrant County. The jury found the bank guilty of fraud, and that the bank did not act “in the good faith belief that it had the legal right to do so [fill in the words ‘Dallas, Texas’] under the laws of the State of Texas.”

There was no evidence raising the issue of either fraud or bad faith. Therefore, the bank’s motion for an instructed verdict should have been granted. Further, the bank’s motion for judgment notwithstanding the jury verdict should have been granted.

Judgment should be here rendered that the bank recovered on the note in accordance with its prayer. That prayer is :

“By delivering to Ray K. Glenn a promissory note with the space for a place of payment left blank, Respondent impliedly authorized Mr. Glenn to fill up the blank space with a place of payment convenient to himself. Under the express provisions of Section 14 of the N.I.L., Petitioner (who stood in Mr. Glenn’s shoes) had the right, prima facie at least, to insert ‘Dallas, Texas* in the blank space, as it did. If there had been an express agreement between the parties that the note was not to be paid in Dallas, Petitioner’s authority would have been limited by such agreement, and it would have been required to fill up the blanks ‘strictly in accordance with the authority given.* There was, however, no evidence of such an agreement. On the contrary, the undisputed evidence showed that Respondent had agreed with Petitioner that he would make his payments under the note in Dallas, Texas. Thus, when Petitioner wrote ‘Dallas, Texas* in the blank space, it was in full compliance with the law and with the understanding and practice of the parties. The note, therefore, is still in effect, and Petitioner is entitled to its judgment thereon.”


author: McDonald, judge.

text:
    Tony Buster BAIMBRIDGE, Appellant, v. STATE of Texas, Appellee.
    No. 33737.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Howard O. Lake, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and I. D. McMaster, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is for driving while intoxicated; the punishment, thirty days in jail and a fine of $50.

It is undisputed that the appellant was driving an automobile upon a public highway at the time and place alleged.

Two officers testified that they saw the appellant immediately after he had stopped his automobile, smelled the odor of alcohol on his breath, heard him talk and saw him walk, and, based upon their observation of appellant’s manner of driving, they expressed the opinion that he was intoxicated.

Testifying in his own behalf, the appellant denied that he was intoxicated but said that he had previously drunk four or five beers. He called two witnesses who corroborated his testimony of nonintoxication.

The jury resolved the issue of intoxication against the appellant, and the evidence sustains their verdict.

The appellant compains of the following testimony of Officer Mahoney:

“As I got through shaking him down and he was walking in the cell as I closed the door to his cell he said ‘I will kill you for this.’ ”

The only objection to such testimony was as follows:.

“Objection and ask the Court to declare a mistrial it being prejudicial and highly inflammatory and has no place in the record.”

The objection was overruled and exception thereto reserved.

Officer Mahoney was one of the two arresting officers and he testified that he saw the appellant driving an- automobile while intoxicated.

If we regard the statement of the appellant to Officer Mahoney as an effort on the part of appellant to prevent the officer from testifying against him or an effort to prevent the officer from testifying the truth against appellant, the statement would be admissible in evidence as proof that one charged with crime threatened or attempted to intimidate a witness against him. 23 Tex.Jur.2d 195, Sec. 135; Richard v. State, 97 Tex.Cr.R. 448, 261 S.W. 587; Deisher v. State, 80 Tex.Cr.R. 428, 190 S.W. 729. We make the observation that the statement made was not in the nature of an oral confession.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    George Washington MAY, Appellant, v. STATE of Texas, Appellee.
    No. 33708.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    Ben Hagman, Weatherford, for appel-ant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction for the felony offense of drunk driving (Art. 802b, Vernon’s Ann.P.C.); the punishment, 18 months in the penitentiary.

The indictment was in two counts, both alleging that appellant on or about July 2, 1960, drove an automobile upon a public highway in Palo Pinto County while intoxicated.

The first count further alleged that appellant had theretofore, on April 15, 1957, been convicted of the misdemeanor offense of driving a motor vehicle upon a public highway in Parker County while intoxicated and had theretofore, on April 8, 1958, been convicted in Parker County of the misdemeanor offense of driving a motor vehicle upon a public highway while intoxicated.

The second count alleged the latter conviction, but made no reference to the conviction in 1957.

It is appellant’s contention that, because of the 1957 conviction, the offense of which he was convicted in 1958 was a felony though no prior conviction was alleged and the County Court of Parker County being without jurisdiction to try felony cases, the 1958 conviction was void. We overrule this contention.

We held in Williams v. State, Tex.Cr. App., 342 S.W.2d 581, and in Coker v. State, 158 Tex.Cr.R. 141, 253 S.W.2d 668, that where no previous conviction is alleged, the offense of driving while intoxicated is a misdemeanor of which the county court has jurisdiction. We reaffirm said holdings.

Appellant complains that the allegation of two separate and distinct prior convictions is improper and prejudicial. We do not agree.

We have held that in alleging prior convictions for enhancement of punishment under Art. 63, P.C., more than the required number of convictions for felonies less than capital may be alleged, proof of two being sufficient. White v. State, 157 Tex.Cr.R. 171, 247 S.W.2d 396; Johnson v. State, 155 Tex.Cr.R. 325, 235 S.W.2d 180; Ex parte Bonds, 148 Tex.Cr.R. 198, 185 S.W.2d 984.

Appellant would have us apply a different rule where, as here, the prior conviction is an element of the felony offense of driving while intoxicated. This we decline to do.

We hold that in a prosecution for drunk driving the offense is a misdemeanor unless a prior conviction is alleged and proved; and that where the accused has been previously convicted of drunk driving, the indictment may allege one or more such convictions, proof of the primary offense and one such prior conviction being sufficient to sustain a conviction for the felony offense defined in Art. 802b, V.A.P.C.

Appellant’s complaint that the trial court erred in refusing his motion for a continuance because of the absence of a material witness is not properly before this Court for review because it is nowhere shown by affidavit, or otherwise, what the witness would have testified to had he been present at the trial. We would not be warranted in reversing the conviction without a showing that the witness would have testified to something material to the defense. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643.

Appellant also contends that the court erred in admitting into evidence a certified copy of the misdemeanor judgment in the 1958 conviction, in that it did not show upon its face that it had been properly entered into the minutes in the Parker County Court. An examination of the record shows that the instrument was properly certified by the Clerk of Parker County as being a true, correct and complete copy of the recorded judgment rendered in said cause and it was not error to admit it into evidence.

The sufficiency of the evidence is not questioned. The testimony of the state’s witnesses describing the appearance and conduct of appellant, and the odor of alcohol about him, was evidently accepted by the jury as true. The appellant’s testimony that he was not intoxicated, and the evidence offered to corroborate him, was not.

The remaining claims of error have been considered and are overruled.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ex parte Billy Burl CLAYTON.
    No. 33836.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Paul W. Leech, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Edward T. Miller, Jack Pevehouse, Phil Burleson, Asst. Dist. Attys., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, his brother and his attorney appeared before the Honorable Glenn W. Byrd, Justice of the Peace of Dallas County, for the purpose of holding an examining trial concerning a charge of driving while intoxicated, second offense. During the course of that hearing, Judge Byrd held all three parties in contempt of court and assessed a punishment against each of them at one day’s confinement in jail and a fine of $25.

Relator and his brother made application to this Court for a writ of habeas corpus, and this Court ordered them produced before County Criminal Court No. 1 and that cause be shown why they were restrained of their liberty. A hearing was had before such court, who ordered relator remanded to custody, and he appeals. The record is before us, and from it we learn the following: That as they prepared to enter the examining court room, it was agreed between the three of them that relator’s brother should sit with relator’s attorney at the counsel table, that relator should sit in the court room in an effort to see “if we could get the officers to make a mis-identifi-cation.”

It was the testimony of the attorney representing the State at such hearing that the relator’s attorney “by pointing his finger and nodding his head” in answer to the court’s inquiry indicated that relator’s brother, seated next to him, was in fact relator. While it is true that relator’s attorney testified that he made no such motion and merely stated to the court that relator was present, the honorable court who held this hearing was the exclusive judge of the facts proven and credibility of the witnesses.

Relator testified that he was seated in the court room during the entire proceedings and could see and hear all that was transpiring.

As soon as the judge learned the true identity of the parties, he held them in contempt.

The only case which appears to be pertinent is Ex parte Bailey, 142 Tex.Cr.R. 582, 155 S.W.2d 927. A careful analysis of Judge Hawkins’ opinion therein is necessary for a proper disposition of the case at bar. In that case, the court held that an agreement to misrepresent one’s identity plus the act of doing so to the prosecutor out of the hearing of the court did not constitute contempt. We agree that the mere agreement to perform the act of subterfuge would not have constituted contempt, but we further hold that when relator saw and heard his attorney in answer to the court’s inquiry indicate his brother as being him and remained silent, then he became guilty of an act of contempt of the court.

Ex parte Bailey is here controlling, and the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Frank CANNON, Appellant, v. STATE of Texas, Appellee.
    No. 33825.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Dean & Nowlin, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $250.

Two highway patrolmen testified that they pursued the appellant after they saw him fail to observe a stop sign, while driving his pickup on a public highway, and that he twice drove over the center line to his left hand side of the highway before he stopped about one mile beyond the stop sign; that they smelled the odor of alcohol on his breath; that his eyes were bloodshot and glassy. When asked if he had been drinking, he replied that “he had consumed all that he had”, but did not state when this had occurred. They further testified that they knew he had previously suffered a disability in his legs, yet at the time this occurred, they said that he was more than usually unsteady while walking. They also expressed the opinion that he was intoxicated.

Sam Harrison testified that he observed the appellant shortly after his arrest and expressed the opinion that he was intoxicated.

The appellant did not testify or offer any evidence in his behalf.

Appellant complains of the admission of Officer Keffer’s opinion, that the appellant could have walked a line if he had not been intoxicated, over his objection that the witness was not qualified, and that the question called for pure speculation.

The evidence shows that the officers had known the appellant for several years, and that he had previously suffered leg injuries and ■ was unsteady to a “certain extent” while walking. Officer Keffer testified, without objection, that at the scene the appellant “suggested that he (appellant) walk a line and he picked out a tire track that ran along the shoulder of the highway and attempted to walk down this track.” * * * and “his feet became entangled and he nearly fell. So, he laughed and said we should find another line.”

There was evidence before the jury of appellant’s ability to walk prior to his arrest in this case, and at the time in question, hence the admission of the officer’s opinion in view of the record was not reversible error.

The judgment is affirmed.

Opinion approved by the court.


text:
    Ex parte John Leonard LEE.
    No. 34206.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    John Leonard Lee, in pro. per.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an original application for a writ of habeas corpus brought by the relator John Leonard Lee, seeking his release from the Texas Prison System.

Relator was on March 4, 1957, convicted upon a plea of guilty in Cause No. 21041 in the Criminal District Court of Jefferson County for the offense of felony theft, and his punishment assessed at two years. He attacks the sufficiency of that portion of the Jefferson County sentence which attempts to cumulate it with additional sentences. It reads as follows:

“Defendant duly sentenced. And the said defendant, John Leonard Lee, having on the 26th day of February, A. D. 1957 in Harris County, Texas, been duly and legally convicted on 5 cases, and his punishment therefor having been assessed and adjudged at confinement in the penitentiary for 8 years, and he having on the 26th day of February, 1957, by said court, been sentenced in due form of law in accordance with said convictions, it is further considered, ordered and adjudged that the punishment herein adjudged against the said defendant John Leonard Lee, shall begin when the said judgments and sentences on the preceding convictions shall have ceased to operate.”

The attempted cumulation is ineffective in that the designation of the Harris County court is absent. Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673; Ex parte Merritt, 195 Tex.Cr.R. 87, 261 S.W.2d 596, and cases cited therein.

We have been furnished with a certificate from the Texas Prison System showing that relator has served both sentences unless the cumulation be held effective.

In view of the authorities heretofore cited, we hold that the relator is entitled to be discharged.

It is so ordered.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Mike MARTINEZ, Appellant, v. STATE of Texas, Appellee.
    No. 33537.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    George T. Thomas, Roger D. Brown, Big Spring, for appellant.
    Justin A. Kever, Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

The indictment, returned November 7, 1960, alleged that appellant, on or about May 7, 1957, killed Taylor L. Garrett by shooting him with a gun.

Trial was upon a plea of guilty, appellant having filed application for suspended sentence.

The evidence introduced by the state included the following:

The deceased, Taylor Garrett, was employed at a Gulf Service Station in Sterling City. About 9 P.M. the witness Gruny, who operated a service station across the street, saw an automobile which he described as a “’51 Ford” at the Gulf Station and saw the deceased and some boys there. He heard some shots and saw the car pulling out of the driveway at a “terrific speed”, going toward San Angelo. He saw the deceased staggering across the driveway hollering “Boots, Boots.” He told his son to call the sheriff and he ran to the deceased, arriving just as he fell face down. He was present when the sheriff and deputy sheriff arrived, and when Dr. Swann pronounced Taylor Garrett dead, and the body was removed.

San Angelo Police Officer R. G. McKnight testified that a road block was set up in San Angelo; that a “light tan ’50 Ford” ran the block and he pursued it until it overturned. He identified appellant as one of four young teenagers who were in the car. He testified that appellant was in the front seat, and he identified a pistol introduced in evidence' as that which he noticed laying next to the windshield in the upturned car.

Nicky Rocha testified that he was with appellant when they stopped at the service station and he saw appellant shoot Mr. Garrett. He testified that he was with appellant in Big Spring when they went to St. Thomas Church and took the car and some beer, then picked up two boys, Herman and Doyle; that after drinking some of the beer they started toward San Angelo. It was his testimony that he was driving the car and that he stopped at the service station in Sterling City because Herman and the appellant said they wanted to go to the bathroom.

“Herman and Mike (appellant) got out and they went in the bathroom; then Herman started out and Mike then went into the service station, * * * and when I last looked up Mr. Garrett was struggling with Mike.”

Nicky further testified that after the appellant shot Mr. Garrett they “took off * * * and headed for San Angelo;” that he drove at about 90 miles per hour; that appellant “was kind of scared and drunk”; that they drove through a road block and finally turned the car over.

On cross-examination he testified that appellant had the pistol when they were walking from school; that some of the boys shot at some cans and bottles before they left Big Spring; that appellant wanted them to go to Mexico with him; that he did not hear anybody say anything about holding up the filling station; that after the shooting appellant and Herman got in the car, appellant said “Let’s go,” and Herman said “You killed him,” and the appellant said “I didn’t mean to.”

The state introduced without objection the voluntary statement of the appellant in which he stated that he, Herman and Nicky “decided to rob a gas station in Sterling City. We stopped at a Gulf Station * * * Herman and I got out of the car and went into the rest room to see if the gun was loaded, * * * We both went inside the station, I pulled the gun on the man and told him to open the cash register. He grabbed me by the neck and started pulling me outside and was hollowing ‘Boots’. When we got outside I shot him first in the leg one time and I got him five times in the stomach. We jumped in the car and Nicky drove 95 and 100 miles an hour, I told him to step on it harder.”

Appellant testified that Herman said they needed some money; that after they used the rest room “Herman and me stepped in front of the door. * * * we were going to try to scare him to give us the money, and when we saw he didn’t get scared * * * Herman ran to the car, and I started to run to the car too when he grabbed me. * * * he started struggling around with me, and I was trying to get away from him, and I figured if I shot the gun * * * he would let me loose, and I started firing, but I didn’t— I wasn’t pointing the gun at him. * * * ”

He denied that he intended to shoot or kill the deceased or that he knew he had killed him, but testified that he kept firing until lie was out of shells, “I didn’t know I hit him until he fell down” and didn’t know how many times the deceased had been shot until the officers told him.

Appellant was nearing his 14th birthday when Mr. Garrett was killed. The indictment was returned after appellant reached the age of 17 years.

Appellant pleaded guilty, but after hearing the evidence, including the testimony of the appellant, the careful trial judge withdrew the plea of guilty and entered the plea of not guilty.

The court, in his charge, gave effect to Art. 31, P.C., the appellant not having arrived at the age of 17 when the offense was committed, and death was not submitted as an applicable punishment.

Prior to answering ready for trial, appellant filed a plea of former conviction as a bar to prosecution under the murder indictment, alleging that he had been adjudged a juvenile delinquent in the County Court and committed to the “State Youth Development School for Boys at Gatesville, Texas.” Attached to said motion is the petition alleging Mike Martinez to be a male child 13 years of age and alleging as facts which appeared to bring him within the provisions of the Delinquent Child Act that on or about May 7, 1957, he made an assault upon T. L. Garrett and “by said assault, and by violence upon the said T. L. Garrett, and by putting the said T. L. Garrett in fear of life and bodily injury, attempt to fraudulently take from the person and possession of the said T. L. Garrett the personal property of the said T. L. Garrett, with the intent then and there to appropriate said property to the use and benefit of him, the said Mike Martinez ⅜ * *

Also attached to said plea is an order finding Mike Martinez guilty of the acts alleged in the petition; adjudging him a delinquent child and committing him to the custody of the Texas State Youth Development Council for an indefinite time, not extending beyond the time he should reach the age of 21 years, and ordering his delivery to the custody of the State Youth Council by delivering him to Gatesville State School for Boys, Gatesville, Texas.

No evidence appears to have been offered in support of the plea and no issue was submitted to the jury or requested in regard thereto.

The only evidence found in the statement of facts which may be said to relate to the Juvenile proceeding appears in the testimony of the appellant wherein he was asked and answered:

“Q. You were tried here in court and sent down to the State School for Boys, weren’t you? A. Yes, Sir.
“Q. How long did you stay down there? A. A year and a month.
“Q. Outside of that, have you ever been convicted of any other offense? A. No, Sir.”

The sole ground for reversal is the contention that this prosecution for murder was barred by reason of the Juvenile Court proceeding in which Mike Martinez was adjudged a delinquent because of an assault upon T. L. Garrett with intent to rob him; was committed, in accordance with Sec. 12 of Art. 5143c, Vernon’s Ann. Civ.St., to the State Youth Development Council, and appellant testified that he was in the State School for Boys for a year and a month. (Art. 5143d V.C.S., which, among other provisions, changed the name of the Council, went into effect May 23, 1957, a week after the commitment of Mike Martinez by the County Court of Sterling County.)

To agree with appellant’s contention that this prosecution was barred we would first have to agree that the plea required no supporting proof: that the appellant Mike Martinez was the same person as the Mike Martinez who was committed as a juvenile delinquent; that T. L. Garrett, who was alleged to have been assaulted with intent to rob, and Taylor L. Garrett, who was murdered, were one and the same; and that the assault in the service station by presenting a pistol, with intent to scare and thus obtain money from the cash register, and the shooting of the victim, first in'the leg and then five times in the stomach after the parties got outside, were not separate acts.

Should we agree that under the facts a conviction under an indictment for assault with intent to rob would bar a subsequent conviction under an indictment for murder, without regard to whether the evidence introduced was the same and whether or not evidence was introduced in the trial for assault to rob showing that the victim was shot and killed, we would then reach the question of whether such a commitment of an accused as a juvenile delinquent is a bar to his prosecution after he reaches the age of 17, either as double jeopardy or under the due process clause of the Constitution of the United States.

We do not agree that the assault made in the service station by presenting a pistol, coupled with the demand that the cash register be opened, was the same illegal action as the shooting of the victim in the driveway thereafter, first in the leg and then five times in the stomach.

The rule in Doggett v. State, 130 Tex.Cr. R. 208, 93 S.W.2d 399, applies only where the state relies upon the same evidence, the same facts and the same transaction in the second conviction as that previously used. In that case the victim was shot and killed when he failed to comply with the order to put up his hands, and money was taken from his pockets. It was stipulated that the murder indictment grew out of no other shooting of the deceased. This Court said: “In the present instance, the proof is conclusive that, in the appellant’s conviction for murder, he was convicted of the same transaction and upon the same evidence as that upon which he was previously convicted of the offense of robbery with firearms.” Doggett v. State, supra, 93 S.W.2d at page 405.

There is no showing in the record before us that evidence was introduced in the Juvenile Court showing that appellant shot or killed the person he had attempted to rob, and no such proof was necessary. The assault with intent to rob was complete when appellant presented a pistol with intent to scare the service station operator and cause him to comply with the demand that he open the cash register. The subsequent shooting and killing, on the driveway, was a separate assault which did not necessarily require proof of a previous assault with intent to rob.

Taylor v. State, 41 Tex.Cr.R. 564, 55 5.W. 961, is deemed applicable. See also Dodge v. State, 124 Ohio St. 580, 180 N.E. 45, 81 A.L.R. 699, 701.

Under the record, we hold that the commitment of the accused as a juvenile delinquent was not available as a defense to the murder indictment returned after he reached the age of 17 years, and that no denial of due process of law or violation of the principles of fundamental fairness is shown. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W.2d 983; Perry v. State, Tex.Cr. App., 350 S.W.2d 21, and Hultin v. State, Tex.Cr.App., 351 S.W.2d 248, sustain our holding.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

Under the opinion of the Supreme Court of this State in Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217, it is' the settled law that the passage of the present Juvenile Delinquency Act in nowise deprives a minor of all the constitutional rights held by an adult. This being true, it naturally follows that this accused is entitled to have the courts protect his constitutional right not to be tried twice for the same offense. He was tried once for assault with intent to rob, which he committed at the age of thirteen, and served that term of confinement. It is the established law in this State that under our Constitution robbery and the murder arising out of such robbery are the same offense. Opinion on rehearing in Doggett v. State, 130 Tex.Cr.R. 208, 93 S.W.2d 399, and cases there cited. He should not now be tried again because of the protection afforded him by the Constitutions of this State and of the United States. United States v. Dickerson, 106 U.S.App.D.C. 221, 271 F.2d 487, and In re Poff, D.C., 135 F.Supp. 224, support the views I here express.

To uphold this conviction would authorize the confinement of a juvenile for the maximum term prescribed by law for the offense committed and then a retrial after he attains the age of seventeen, and a subsequent reconfinement for another maximum term. Such a situation would surely he a deprivation of due process because it would be discriminating against the minor because of his age.

I respectfully dissent to the affirmance of this conviction.


text:
    Orville Gene HOWELL et al. v. STATE of Texas, Appellee.
    No. 33756.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Collins, Langford & Pine, by John A. Langford, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal by V. G. Apodoca from a bond forfeiture. Suit was by the state against Orville Gene Howell, as principal, and V. G. Apodoca, as surety, for forfeiture of a bail bond in the sum of $400. Judgment was entered by the trial court against both principal and surety for the sum of $400.

Appellant predicates his appeal upon one point or proposition. He contends that the trial court erred in overruling his special exception, which was that the bail bond upon which the forfeiture was based did not contain the statutory language and conditions as set out in Art. 275a, Sec. 1, Vernon’s Ann.C.C.P. It is appellant’s contention that since this statutory condition provides “for the defendant’s personal appearance before the court or magistrate designated therein, and for any and all subsequent proceedings had relative to the charge,” the bail bond upon which said forfeiture is based is void and of no force and effect in that said bond is conditioned as follows:

“The condition of the above obligation is such that whereas the above named principal is charged in the El Paso County Court at Law of El Paso, Texas, with a misdemeanor. Now if the said above named principal shall well and truly make his appearance before the El Paso County Court at Law, El Paso County, Texas, in El Paso County, Texas, at its present term, now in session, on the Instanter and there remain from day to day and term to term of said Court, until discharged by due course of law, there to answer said accusation against him, this obligation shall become null and void; otherwise to remain in full force and effect.”

The able trial judge made findings of fact and conclusions of law which reflect that the only reason the bail bond was forfeited was for the failure of the principal to make his appearance in the named court and at the named time, to answer the charge of “driving while intoxicated,” which he failed to do. Under the conditions of the bond herein involved, the principal was legally bound to make his appearance. The bond was forfeited purely and only on this premise and the conditions contained in the bail bond. The bail bond was not forfeited relative to the principal’s failure to appear at any or all subsequent proceedings had in connection with the charge. We cannot find where the principal or the appellant (surety) suffered any harm by the omission of the complained-of language from the bail bond. We think the bail bond involved was a valid and binding obligation on the principal and surety, and that, if anything, the bail bond was less onerous on the obligors in its present form that it would have been had it been in the form complained of by the appellant. See 9 Tex.Jur.2d 432; Whitaker v. Sanders, Tex.Civ.App., 52 S.W. 638.

In Hines v. State, 168 Tex.Cr.R. 381, 327 S.W.2d 755, we held the bond — the conditions of that obligation being identical to the one at bar — to be valid and binding on principal and sureties.

Finding no error, the judgment is in all things affirmed.


text:
    Cleopha DAVIS, Appellant, v. STATE of Texas, Appellee.
    No. 33867.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.
    Florence, Garrison & Holt, by Lowell C. Holt, Gilmer, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawful possession of wine in a dry area for the purpose of sale; the punishment assessed by the jury, 90 days in jail and a fine of $250.

The complaint, regular on its face, purports to be signed by C. D. Matthews and sworn to before the County Attorney who presented the information.

Upon the trial, C. D. Matthews testified that he signed the complaint in the County Attorney’s office, but did not swear to it.

Such evidence not being controverted, appellant moved to quash the complaint and information.

Art. 415, Vernon’s Ann.C.C.P. provides that no information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.

In the absence of a written complaint duly verified, the prosecution cannot be maintained. Thomas v. State, 107 Tex.Cr. R. 405, 296 S.W. 310.

The judgment is reversed and the prosecution ordered dismissed.


author: McDonald, judge. WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Bethel Raymond FAIRRIS, Appellant, v. STATE of Texas, Appellee.
    No. 33614.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.
    Rehearing Denied Nov. 22, 1961.
    No attorney on appeal, for appellant.
    John W. O’Dowd, Houston (of counsel for appellant on rehearing only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was found guilty by a jury of the primary offense of robbery by assault. The indictment charged an habitual criminal, it being alleged that before the commission of the instant offense of robbery by assault, he had been convicted of the prior offenses of burglary and robbery by assault. In addition to finding appellant guilty of the instant or primary offense, the jury rejected appellant’s plea of not guilty and further found that he had previously been convicted of robbery by assault, an offense of like character and of the same nature. The punishment provided by law is life imprisonment in the penitentiary, which was assessed appellant by the court after the jury’s finding of guilt on both counts of the indictment.

The evidence reflects that at about 10:15 p. m., on the evening of September 15, 1960, William Marvin Hall, accompanied by Joy Dale Scales, returned to Hall’s house at 808 West Main in Houston, Harris County, Texas. A short time after they had entered the house the appellant and his companion, holding guns, stepped out from behind a door. Even though appellant and his companion were wearing women’s stockings and handkerchiefs across their faces, appellant was positively identified by both Hall and Miss Scales. After forcing Hall and Miss Scales to lie down on the floor, appellant and his companion tied their hands securely behind their backs. Then they took them to an upstairs bedroom where, for a period of longer than an hour, appellant and his companion tortured, beat, and burned them with cigarettes in an effort to make them tell where they believed Hall was concealing a large sum of money. The pair had already taken approximately $250 from Hall’s coat. Hall told appellant that his money was at his gift shop located on the Old Spanish Trail in Houston, and also told him that an employee, Shirley Dunn, was the only one who had a key to the gift shop. Appellant then forced Hall to call Shirley Dunn and have her bring the key to Hall’s house. Shortly thereafter, Shirley Dunn and her boy friend arrived at Hall’s residence. Joy Dale Scales had been untied and she admitted the couple into the room, and they were immediately tied by the appellant and his companion. After a conference in another room, the appellant and his companion decided that the appellant’s companion would take the key and go to the gift shop to obtain the money. The companion left and appellant stayed to guard the four prisoners. When appellant went into the kitchen to get a glass of water for Hall, Hall, with his hands tied, leaped head-first through a window in the living room and ran down the street. Appellant then ran from the house. The companion of appellant came back shortly thereafter and upon learning what had happened, also fled from the scene. Appellant and his companion were arrested later and were positively identified in a police lineup by Hall, Joy Dale Scales, and Shirley Dunn.

A woman’s stocking and handkerchief, found near Hall’s house the next day by a neighbor, were delivered to the police. Upon inspection, human hairs were discovered in the stocking, which Chemist and Toxicologist Crawford testified had many similar characteristics, and no dissimilar characteristics, to the known samples of hair from the head of appellant.

A white Buick, 1960, automobile, bearing a license plate No. PY 3712, which had been purchased a short time before by the appellant, was seen by police officers a short distance from Hall’s house shortly after the incident occurred, and was seen to drive away at a high rate of speed.

Appellant’s defense was that of alibi. Through the testimony of Margaret Davis, an admitted common prostitute, he attempted to show that he was in Dallas on the evening that the offense occurred. Margaret Davis testified that she and another girl picked up the appellant in Houston and took him to Dallas, where he registered at the Town House Motel.

Ross N. Baird, of Dallas, testified that he saw appellant in Dallas on the evening of September 15, 1960, and talked to him concerning the employment of appellant at a later date.

Appellant did not testify in his own behalf.

The evidence is amply sufficient to prove the primary offense of robbery by assault.

Because of the variance in the alleged date of the conviction and that appearing in the judgment of conviction of the first prior offense of burglary, the state was unable to prove that particular offense.

The state did amply prove that the appellant had been convicted of the prior offense of robbery by assault in 1953, as alleged in the indictment.

The jury rejected the defense advanced by the appellant to the primary offense and found him guilty of that offense and that he had been convicted of the prior alleged robbery by assault.

The record contains no formal bills of exception. The appellant made no objections to the court’s charge, and no requested charges were presented.

Several informal bills of exception appear in the statement of facts, none of which require discussion, as all of them are without merit.

Appellant’s counsel filed no brief.

Finding no reversible error and deeming the evidence abundantly sufficient to support the verdict, the judgment is affirmed.

On Appellant’s Motion for Rehearing

WOODLEY, Presiding Judge.

Appellant contends that the indictment is fatally defective and will not support an enhancement of punishment under Art. 62, P.C. He cites and quotes from the majority opinion on rehearing in Granado v. State, Tex.Cr.App., 329 S.W.2d 864, 868:

“It has now been called to our attention that the indictment before us fails to allege that the offense set forth in paragraph 4 was a like offense or one of the same nature as the primary offense charged. This Court has repeatedly held that such is an essential allegation in order to sustain a conviction under Article 62, Vernon’s Ann. P.C. The omitted allegation is one of substance, and its omission is fatal.”

The case before us demonstrates the fallacy of the quoted holding.

Art. 62, P.C., provides: “If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

The indictment herein alleged the offense of robbery by assault, a felony less than capital.

The prior conviction alleged to enhance the punishment was for a like offense; robbery by assault, a felony.

As a matter of law the offense in the pri- or conviction was “the same offense, or one of the same nature,” as the offense for which appellant was tried and convicted.

Reference is made to the writer’s dissent in Granado v. State, supra, and cases there cited, and to his concurring opinion in Gibbs v. State, Tex.Cr.App., 336 S.W.2d 625, 626.

Had the indictment further alleged that the prior conviction for robbery by assault was for an offense of like character and of the same nature as that charged against him, to-wit robbery by assault, no additional proof would have been required to sustain such allegation and no evidence to the contrary could have been produced.

We agree that the Court should be reluctant to overrule its prior decisions. However, when a prior holding is clearly wrong, the Court should not cast itself in the position of relying upon its previous errors to justify another.

The quoted holding in Granado v. State, supra, is overruled, as is appellant’s motion for rehearing.

On Motion for Rehearing

MORRISON, Judge

(dissenting).

In writing for the majority in Granado v. State, supra (1959), I cited ten authorities which supported the holding of the Court. My brother, who dissented in Granado and who today writes for the majority, says that Granado is “clearly wrong.” I again call attention to the authority which supports the holding in Granado and respectfully dissent.


author:
MORRISON, Judge. McDONALD, Judge
      WO.ODLEY, Presiding Judge MORRISON, Judge.

text:
    Oliver RICARD et al., Appellants, v. STATE of Texas, Appellee.
    No. 33297.
    Court of Criminal Appeals of Texas.
    June 14, 1961.
    Rehearing Denied Nov. 22, 1961.
    John J. Fagan, Dallas, for appellants.
    Henry Wade, Criminal Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is a bond forfeiture proceeding. This record shows without question that prior to the entry of the final judgment appellant had been arrested at the sureties’ expense, had appeared before the court, plead guilty, was assessed a jail term, and was serving such term at the time of the entry of the judgment in the bond forfeiture proceeding.

This is the type of case envisioned by Article 439, Vernon’s Ann.C.C.P., which reads as follows:

“If, before final judgment is entered against the bail, the principal appear or be arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.”

The court in the case at bar appeared to be laboring under the impression that he had no such discretion except in a certain limited type of cases.

In compliance with the rule set forth in the opinion of this Court on rehearing in Williams v. State, 159 Tex.Cr.R. 443, 265 S.W.2d 92, we hold the judgment of forfeiture 'to be excessive in the sum of $250; and, accordingly, if appellee files a remit-titur in that amount within 20 days, the judgment will he reformed and affirmed; otherwise, the cause will be reversed and remanded.

McDONALD, Judge

(concurring).

I concur in the disposition of this case by Judge MORRISON.

In reviewing the statement of facts, it is noted that the trial judge stated that he had read all the cases he could find on the law and that he had come to the conclusion that the only discretion he had in a given fact situation was when a defendant had an excuse for not being present in the trial court.

The careful trial judge, I think, earnestly endeavored to correctly interpret and apply the law in this case when he made the foregoing statement, and I infer from such statement and two other separate and almost identical statements made by him that he would possibly have exercised his discretion and granted a remittitur had he felt that he possessed the authority to do so. I feel that in a proper case, wherein — as I view it here — discretionary power is vested in the trial court, his failure to exercise such power would constitute an abuse of discretion.

In abstractly viewing “abuse of discretion,” one might well conclude in a given case that the trial court created harm, and thus an abuse of his discretion, by exceeding the bounds of his authority.

On the other hand, the lack of action on the part of the trial court and his failure to remedy a harmful situation might possibly bring about equally as much harm as would his exceeding the bounds of reasonable discretion.

It is evident that Art. 439, V.A.C.C.P., does vest broad discretion in the trial court to remit the whole or part of the sum specified in the bond or recognizance.

There is no statutory authority giving discretionary power to this court. At the same time, it is elemental that this court does have the right, power, and authority to review the acts of the trial court in abusing his discretionary power.

The two early appeals in bond forfeiture cases decided in 1912, namely: Johnson et al. v. State, 68 Tex.Cr.R. 51, 150 S.W. 890, and Williamson et al. v. State, 68 Tex.Cr.R. 53, 150 S.W. 892, are cited in some quarters as authority for saying that discretionary power to grant remittiturs is not vested in this court.

It was held in the Johnson case that only in those instances where the record disclosed that the trial court had abused the discretion confided in him would this court be authorised to disturb the judgment. This court discussed the facts in the case and pointed out that the trial court had found as a fact that Johnson had wilfully and intentionally absented himself to prevent a trial of his case at the certain term of court, and this court found that making final a forfeiture of the full amount of the bond would not be an abuse of the trial court’s discretion.

I feel that the holding of this court in the Johnson case allows sufficient latitude to authorize us to disturb a judgment of the trial court.

Much has been said with reference to the statutory provisions leaving this matter discretionary with the lower court and not with this court. If this court properly reviews cases involving an abuse of discretion by a trial court, then it certainly should have some latitude in correcting cases of the trial court’s abuse of discretion other than to simply reverse and remand the case for another trial.

By the majority opinion in this case we are giving to the trial court an opportunity to do that which he thought he had no authority to do, or, if he disagrees with us, then he may try the lawsuit again.

I do not doubt the power of the trial court to decline to remit, but I think the trial court clearly demonstrated by his statements that he did not consider he possessed any authority to remit in this case.

WO.ODLEY, Presiding Judge

(dissenting).

I do not agree that the trial judge abused his discretion in making final the judgment against Ricard and his sureties for $350, the amount they contracted to pay in the event Ricard failed to appear at the time set for his trial.

The appellant’s sureties signed the bond in consideration of a fee based upon the amount of the obligation they assumed. The principal’s failure to appear in December 1959 was wilful and accomplished his purpose, which was to avoid a trial and cause his case to be continued and trial postponed for some eleven months.

Art. 439, Vernon’s Ann.C.C.P. does not require the trial judge to remit any part of the sum specified in the forfeited appearance bond. It merely provides that the court may at its discretion do so.

The appellants, at the hearing in the trial court, did not request or seek a remission of a part of the judgment nisi forfeiting the $350 bond. They sought to set aside the forfeiture.

Appellants in this court do not seek or pray for remission of any portion of the amount for which the forfeiture was made final, but to set aside such final judgment.

It is my position that this court is without authority to require remittitur of any part of the final judgment appealed from, and that a remission of $250 of the $350 judgment nisi is not justified under the record.

On State’s Motion for Rehearing.

MORRISON, Judge.

We erroneously referred in our original opinion to “appellant,” whereas the phrase should have been “the principal.” Our original opinion is corrected in this respect.

The State now calls our attention to the fact that the principal did not appeal. The judgment as to him, therefore, remains undisturbed. Remittitur having been filed, the judgment rendered against the appellant sureties is reformed so as to provide for the recovery against them of the sum of $100 and all costs. As reformed, the judgment is affirmed.

The State moves that we amend the style of the case in view of the fact that the principal did not appeal. An examination of the records of this Court reveals that appeals in bond forfeiture cases have consistently been styled in the trial court and in this Court in the name of the principal in the forfeited bond “et al.” without regard to whether the appeal was by one or more sureties alone, or by both the principal and his sureties.

Appellants having superseded the judgment by supersedeas bond, it is ordered that judgment be entered against the sureties thereon for the performance of the judgment as reformed and affirmed.

The State’s motion for rehearing is overruled.