author: McDonald, judge. MORRISON, Judge

text:
    Robert Thomas SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 36663.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    Rehearing Granted May 27, 1964.

      J. M. Donald, Jacksboro, on appeal only, for appellant.
    Doug Crouch, Dist. Atty., John A. Brady and Jack Ray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is passing a forged instrument; the penalty, three years in the state penitentiary.

The record reflects that the trial was had on June 24, 1963, and a plea of nolo con-tendere entered. Notice of appeal was given in open court on the same date. The statement of facts included in the record was filed in the trial court on February 3, 1964, and thus was not filed within 90 days from the date notice of appeal was given as is required by Sec. 4, Art. 759a, Vernon’s Ann.C.C.P. Further, the statement of facts, while approved by the attorneys for the State and the defendant personally, was not approved by the trial judge. The transcript contains no request for an extension of the time for filing nor an order extending same.

As stated in Mobley v. State, Tex.Cr.App., 365 S.W.2d 173, a statement of facts not filed within ninety days after the date notice of appeal was given (1) or extension of said time by the trial court, and (2) not approved by the trial judge cannot be considered. Art. 759a, supra. In other cases we have considered statements of facts not so approved and filed, and have ordered reversals upon the grounds that an appellant has been deprived of a statement of facts, but only upon a satisfactory showing that the accused and his counsel have exercised diligence in the matter and that the failure to secure the proper approval and file the statement of facts in time has been due to no fault or negligence on their part. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223.

It is the duty of counsel for appellant to see that a statement of facts is properly filed in time and the accused is charged with the same duty. Salter v. State, Tex.Cr.App., 351 S.W.2d 885.

There is no showing that appellant or his counsel in the instant case has been deprived of a statement of facts which can be considered by this Court or that diligence has been used in an effort to secure a properly approved and timely filed statement of facts. Fleming v. State, 161 Tex.Cr.R. 519, 279 S.W.2d 340; Hagler v. State, 163 Tex.Cr.R. 63, 288 S.W.2d 789; Seales v. State, Tex.Cr.App., 311 S.W.2d 854.

In the absence of a statement of facts which may be considered, we cannot pass upon the question of the sufficiency of the evidence nor upon appellant’s informal bills included therein.

Appellant’s contention that the judgment and sentence were “prepared” before the trial commenced is not borne out by the record.

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

ON APPELLANT’S MOTION FOR REHEARING

On original submission of this cause we did not consider the statement of facts appearing in the record because the same was not filed with the clerk of the trial court within ninety days after the date notice of appeal was given as required by Sec. 4 of Art. 759a, V.A.C.C.P.

By affidavit it is made known that both appellant’s trial counsel and the Judge who presided at the trial, died pending the appeal. We have concluded that the late filing of the statement of facts was through no fault or laches on the part of appellant, and we therefore consider the same.

The conviction was upon the second count of an indictment alleging that appellant fraudulently passed a forged instrument in writing, to-wit, a check on the Citizens National Bank in the sum of $181.-52 payable to Toys and Sports Inc. or order, signed Charles J. Williams, Route #1, Azle, Texas, dated December 20, 1962 and bearing the stamp “Insufficient Funds.”

The evidence reflects that appellant, using the name Charles J. Williams, acquired a drivers license and later, using the license for identification, opened a checking account in the Citizens National Bank of Weatherford, Texas. Subsequent to the opening of the account, appellant went to a store in Fort Worth known as Toys and Sports Inc., and purchased a custom made rifle, together with some shells and a gun case. In making the purchase appellant identified himself at the request of the store manager as Charles J. Williams, Route 1, Azle, Texas, again exhibiting the drivers license. The store manager, then accepted the check in the amount of $181.52, in payment for the items heretofore mentioned. The check in question, upon being forwarded to the Citizens National Bank of Weath-erford, was by that bank not paid but was returned with the following notation marked thereon, “Returned by reason of insufficient funds.”

It was shown that no person by the name of “Charles J. Williams” resided in the vicinity of Azle, Texas.

We are constrained to agree with appellant that the evidence presented is insufficient to support the jury’s verdict.

To constitute the offense of forgery, the instrument must purport to be the act of another. Art. 988 P.C. “Another,” as used in said article, includes all other persons, real or fictitious, “except the person engaged in the forgery.” The state’s evidence shows that appellant drew the check upon an account he had himself opened under the name he signed to the check, identifying himself by an operators license he had applied for and received under said name.

Carnalan v. State, 110 Tex.Cr.R. 550, 9 S.W.2d 1034, contains the following language, “If the fictitious name is one which the accused is in the habit of using, and one by which he is known and does business, a conviction cannot be sustained.” Also, “ * * * Nor is it forgery when the offense is not the assumption of the name of a supposed third person, but the adopting of an alias or alternative name by the party charged.”

The above rule fits squarely upon the fact situation in the instant case, as the appellant seems to have merely adopted an alias or alternative name, obtained a drivers license under it, opened a bank account and written checks, all under his adopted alias. Thus the act did not purport to be that of another.

Dunlap v. State, 169 Tex.Cr.R. 198, 332 S.W.2d 727, also supports our position with the following language, “An instrument signed in an assumed name and passed by the person signing it as his own act is not forgery in that it does not purport to be the act of another.” By way of illustration, to show how the signing of a name by which the defendant was sometimes called, may sustain a forgery conviction, Dunlap cites Ware v. State, 124 Tex.Cr.R. 639, 65 S.W.2d 310. In Ware, the accused falsely represented his name to be Perry Scott (the name signed to the checks) when in fact his name was Perry Scott Ware. The controlling factor in affirming the conviction in that case was the fact that there was no testimony showing that he had any kind of business relations or had been engaged in any commercial transaction under the name Perry Scott.

In the instant case appellant had engaged in business relations under the name affixed to the check, by obtaining a drivers license, opening a bank account and drawing checks, some good and others returned for insufficient funds. Thus Ware, supra, is distinguished from the case at bar.

It appears that appellant stands convicted for passing a forged instrument upon evidence showing the fraudulent giving of a check upon which was stamped insufficient funds.

Appellant’s motion for rehearing is granted, the order of affirmance is set aside, and accordingly, the judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

It is only necessary to quote a portion of appellant’s confession to illustrate the fallacy of my brethren’s opinion herein. He stated the reason for using the name of Charles J. Williams in these words:

“The reason I got the license in this name, was because my wife Geneva Smith and myself decided to set up a way to cash forged checks for our own personal gain. * * * ”
“I asked the man if I could give him this check and he advised me that I could if I had the proper identification. * * * So I showed him the Charles J. Williams drivers license and he accepted the check.”

Surely the concerted plan to enter into a program of forging checks could not meet the test of engaging in a business as is discussed by Judge Lattimore in Ware v. State, 124 Tex.Cr.R. 639, 65 S.W.2d 310.

This is a far stronger case than Dunlap v. State, 169 Tex.Cr.R. 198, 332 S.W.2d 727, in which I also dissented. I respectfully dissent to the reversal of this conviction.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. DICE, Commissioner.

license: Public Domain

text:
    Raymond Bernard JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 36699.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    Rehearing Denied May 6, 1964.
    Second Motion for Rehearing Denied June 10, 1964.

      Maurice Amidei, Fort Worth (Court-appointed for appeal only), for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery; the punishment, IS years.

The indictment was in two counts, the first alleging robbery with firearms and the second robbery.

The original indictment is before us. A printed form for indictment for robbery with firearms was used for the first count.

The appellant seeks to treat the portion of the second count of the indictment and the constitutionally required conclusion, “against the peace and dignity of the state,” as not being a part of the indictment because it is upon a separate sheet attached by tape to the remainder of the indictment.

No authority is cited to sustain such contention.

The trial court found no merit in appellant’s contention in this regard and neither do we.

The evidence reflects that about 9:30 the night of January 4, 1963, appellant and a. companion, Cecil Dean Hart, after being served in the dining room of Holiday Inn Motel, located in Fort Worth, Texas, walked to the cashier, Mrs. Donna Harless, and presented their ticket as though they were going to pay their bill. Instead of giving her any money, Hart pointed a gun toward Mrs. Harless. While Hart unsuccessfully attempted to get the dining room cash register open, appellant proceeded into the lobby where he approached Miss Dean Morris, the desk clerk, and at gun point told her to step back and be quiet and not to touch the telephone or she would get hurt. Appellant, who unsuccessfully attempted to open the registration desk cash register, removed $270.00 to $280.00 therefrom after Miss Morris opened the drawer upon his demand.

The police, upon their arrival at the Holiday Inn, were given a description as to the color and make of the get away car and of its occupants, by Will Sharie.n, a porter who had watched the departure from a window.

R. F. Canfield, a patrolman for the Texas Department of Public Safety, having received a report of the robbery and a description of the get away car and its occupants, observed such a car and followed and stopped it.

The driver, who proved to be Cecil Dean Hart, got out and came to the patrol car. He had an empty holster inside his trousers and a loaded snubnose pistol in his pocket.

The second occupant of the stopped car drove it away.

Other officers who received information by radio attempted to stop the vehicle. They pursued it for some 40 miles, at speeds up to 100 miles per hour. The chase ended with officers finding it wrecked near Jacks-boro. There was blood on the steering wheel and front seat, and a .32 caliber H & R Pistol on the front seat. The driver was not located that night.

The appellant was apprehended the following morning some 10 or 12 miles from the wrecked car, after a foot race across a pasture. A .38 caliber hammerless Smith and Wesson Pistol was found in the pocket of the top coat he was wearing. Except for its serial number this pistol matched the pistol taken from Cecil Dean Hart. When apprehended, the appellant had injuries on his face which he told the officers he received in a car wreck.

Both Hart and the appellant were identified by Donna Harless in a police line up, and the appellant was identified by said Donna Harless and other witnesses as one of the two men who came to the Holiday Inn wearing top coats and committed the acts stated.

Dean Morris, named in the indictment as the victim of the robbery, identified the appellant as the man who produced a pistol and removed the money from the cash register after she opened the drawer, upon his demand. She testified that she was scared-

Two attorneys represented the appellant at his trial.

The statement of facts contains numerous informal bills of exception they perfected.

Sentence was pronounced on July 29, 1963, and notice of appeal given in open court was incorporated therein.

On September 4, 1963, the trial court entered order appointing Honorable Maurice Amidei, practicing attorney of the Fort Worth Bar, to represent the appellant and perfect his appeal to this Court.

The order recites that appellant’s trial attorney had requested and been granted permission to withdraw from the case at bar and that the defendant was unable to secure counsel.

The statement of facts and bills of exception are properly before us. There is no showing in the record when the two attorneys who represented the appellant at his trial withdrew or why they withdrew, and no showing that the appellant was prejudiced in the matter or denied the right to counsel on appeal.

More than 20 bills of exception are presented by counsel appointed by the court to represent the appellant on appeal, and many informal bills of exception were preserved by appellant’s counsel at the trial and are shown in the statement of facts.

Bill No. 15 complains that the state’s wit-mess J. T. Lynch “ * * * referred to a ■conversation involving the former record ■ of the defendant and involving whether or ■not the defendant intended to lead this kind of life or whether or not he intended to go straight.”

The objection to this testimony was made for the first time when the bill of exception was prepared. The objection comes too late.

Bill No. 16 complains that the holster taken from Cecil Dean Hart was introduced which had attached a card upon which was shown information placed thereon by the police, including information that it was stolen property.

The bill shows that over the objection of the appellant the tag was removed at the request of the attorney for the state and a plain tag substituted.

In the absence of any showing that one or more jurors obtained the information or saw the writing on the tag, no error is shown by this bill.

Bills of Exception complaining of argument to which there was no objection show no error.

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

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant complains that in our opinion on original submission we were in error in overruling, without discussion, his points of error Nos. 5 and 6, which were that the trial court erred in overruling his motion to dismiss the indictment on the ground that he was not taken immediately before a magistrate after his arrest, as required by Art. 217, Vernon’s Ann.C.C.P.

An examination of the record reflects that no written motion to dismiss the indictment on such ground was made by appellant, as required by Art. 513, V.A.C.C.P. We observe, however, that the failure to take appellant immediately before a magistrate would not vitiate the indictment. Campbell v. State, 172 Tex.Cr.R. 431, 358 S.W.2d 376.

By point of error No. 8, which we did not discuss, appellant insists that the trial court’s action in ordering the jury retired during his cross-examination of the witness Dean Morris to determine the admissibility of certain testimony constituted a denial of appellant’s right to he confronted by the witness against him, as guaranteed by Art. 1, Sec. 10, of the Constitution of this State, Vernon’s Ann.St.

Clearly, there is no merit in the contention, as the record shows that the testimony given by the witness was in the presence of appellant

By points of error Nos. 11, 12, and 13, appellant complains of certain testimony given hy the witnesses Carrie Woodward and Officer R. F. Canfield on the ground that it was hearsay.

The record reflects that the testimony of the witness Woodward was not hearsay but a narration of certain events occurring at the time of the robbery, which was admissible as part of the res gestae. With reference to the testimony of the witness Canfield, the record shows that the officer was permitted to testify that he had received a radio report of the robbery and description of a certain automobile, but he did not relate the contents of the report.

The testimony was not subject to the objection of hearsay. Bevins v. State, 110 Tex.Cr.R. 52, 7 S.W.2d 532; Lufkin v. State, 144 Tex.Cr.R. 501, 164 S.W.2d 709.

Appellant’s remaining point of error, No. 14, is to the court’s action in sustaining the state’s objection to a certain question propounded by him to the witness Canfield.

The bill of exception does not show what the answer of the witness would have been and therefore presents nothing for review. Mays v. State, 165 Tex.Cr.R. 123, 304 S.W.2d 118.

Remaining convinced that a proper disposition was made of the case on original submission, the motion for rehearing is overruled.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Roy Lopez MENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36947.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    Rehearing Denied June 10, 1964.
    No attorney of record on appeals.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is driving a motor vehicle upon a public highway while intoxicated, the minimum punishment for which is 3 days in jail and a fine of $50. (Art. 802 Vernon’s Ann.P.C.)

The judgment appealed from was rendered upon the verdict of a jury assessing a fine of $50, but no jail term.

The punishment assessed being less than the minimum provided by law, reversal of the conviction is required. Compian v. State, Tex.Cr.App., 363 S.W.2d 468, and cases there cited.

The judgment is reversed and the cause is remanded.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Ernest FONTENOT, Appellant, v. The STATE of Texas, Appellee.
    No. 36382.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    Rehearing Denied June 10, 1964.
    Charles William Tessmer, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Don Nicholson, Edwin Davis, A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

In view of our disposition of the case, a recitation of the facts will not be deemed necessary. Our prior opinions are withdrawn and the following is substituted in lieu thereof. The offense is possession of marijuana; the punishment, ten years confinement in the state penitentiary.

Appellant’s bill of exception No. 2. in the first paragraph states exactly and in unequivocal terms the action of the court about which appellant complains. We quote therefrom:

“This Bill of Exception complains of the action of the Court, over objection and exception of Defendant, after completion of the jury list under the procedure of Articles 626, 627, and 628 VAC CP at the demand of the parties hereto, in permitting then, upon demand by the State’s counsel, a second shuffle, not authorized by law.”

This complaint is, we think, meritorious and' should have been granted. Appellant was-here objecting to the action of the trial court in allowing the state a second shuffle, not authorized by statute. This obj ection is. brought forward in this bill of exception, certified to by the trial court as correct, approved and ordered filed by the trial court.. The bill reflects that the trial court contravened the statute by his action. In this, state of the record the bill reflects error regardless of the course of action pursued' subsequently by appellant; that is, whether or not appellant moved to quash the panel in writing or orally. Error was committed calling for a reversal for the reason that the trial court refused to have the jurors names drawn in the manner required under Arts. 626, 627 and 628 of Vernon’s Ann.C.C. P., even in the absence of a showing of injury to appellant.

In concluding that no injury need be shown in order to warrant a reversal, we make reference to Branch’s 2nd Ed., Vol. 1, Sec. 543 where the following language is to be found:

“An infringement of the jury law will require a reversal without reference to whether injury to the defendant is shown. When the statute prescribes the method of procedure and compliance therewith is promptly and timely demanded, the trial court is not authorized to permit infringements of the jury law.”

Citing many cases including Bell v. State, 92 Tex.Cr.R. 342, 243 S.W. 1095; Moore v. State, 132 Tex.Cr.R. 403, 105 S.W.2d 250; Smithwick v. State, 155 Tex.Cr.R. 292, 234 S.W.2d 237 and Adams v. State, 50 Tex.Cr.R. 586, 99 S.W. 1015 in which no motion to quash the jury panel appears to have been made. We also observe that in De Joyas v. State, 141 Tex.Cr.R. 520, 150 S.W.2d 254, no mention of a motion to quash is made. Judge Morrison, in his dissenting opinion on original submission, referred to 35 Tex.Jur.2d, Sec. 95, p. 144, as follows:

“Some violations of the statutes are sufficient to cause a reversal without any specific showing that the appellant suffered injury. The right of trial by jury stands on a higher plane than expediency; and fair trial by jury means a jury selected according to the law regulating their selection and em-panelment. The law has ordained a tribunal for the trial of criminal cases, and has provided the method of selecting a jury, and there is no authority to resort to any injury by the failure of the court to follow the statutory method.”

Lair v. State, 169 Tex.Cr.R. 220, 333 S.W.2d 389 and Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110, were cited in our original opinion in this cause in support of the proposition that injury must be shown in appellant’s bill before reversible error would be reflected. The Lair case cites Ellis v. State, 69 Tex.Cr.R. 468, 154 S.W. 1010, in support of this proposition and Howell cites Lair. It should be noted that Ellis had been expressly overruled in Bell v. State, 92 Tex.Cr.R. 342, 243 S.W. 1095 prior to its being cited in Lair. Thus we conclude that the Howell and Lair cases are in error in so far as they do not conform to the law herein stated.

We shall pretermit a discussion of appellant’s complaint about improper jury argument for the reason that same will probably not occur upon another trial.

Accordingly, the appellant’s motion for rehearing is granted, the order of affirmance is set aside, and the judgment is reversed and the cause remanded.

On Appellant’s Motion for Rehearing

WOODLEY, Presiding Judge

(dissenting).

Rule 223, Rules of Civil Procedure, formerly Art. 2138, R.C.S.1925, provides:

“In counties governed as to juries by the laws providing for interchangeable juries, the names of the jurors shall be placed upon the general panel in the order in which they are drawn from the wheel, and jurors shall be assigned for service from the top thereof, in the order in which they shall be needed, and jurors returned to the general panel after service in any of such courts shall be enrolled at the bottom of the list in the order of their respective return; provided, however, that the trial judge upon the demand of any party to any case reached for trial by jury, or of the attorney for any such party, shall cause the names of all the members of the general panel available for service as jurors in such case to be placed in a receptacle and well shaken, and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may he selected to try such cause, and such names shall he transcribed in the order drawn on the jury list from which the jury is to be selected to try such case.”

The jury panel from which the jury was selected to try the appellant was drawn from the members of the general panel upon demand of the state.

Appellant’s trial counsel, according to the bill of exception, objected and moved to quash the new panel as illegally constituted because a jury panel had been drawn from said general panel upon demand of the defendant.

Art. 608, C.C.P. provides that a challenge to the array must be in writing setting forth distinctly the grounds of such challenge. No written challenge or motion is found in the transcript.

Art. 608, C.C.P. further provides: "when made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.”

No affidavit appears to have been made or evidence offered in support of the challenge to the array of jurors.

Appellant’s able counsel on appeal rely upon a bill of exception as a substitute for the required challenge to the array. This they cannot do. Arts. 608 and 641 C.C.P.; Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360; Carroll v. State, 104 Tex.Cr.R. 11, 282 S.W. 233; Barrera v. State, 165 Tex.Cr.R. 552, 309 S.W.2d 437; Walker v. State, 171 Tex.Cr.R. 379, 350 S.W.2d 561.

In Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360, the defendant’s bill of exception No. 13 complained that after the list of jurors for the week had been exhausted the sheriff summoned additional jurors, as instructed by the trial judge, from the north end of the county.

In the original opinion Judge Christian noted that the court had no authority to instruct the sheriff to select jurors from any particular section of the county but the bill was held insufficient to manifest prejudicial error.

The original record reveals that Evans’ motion for rehearing took the position that appellant here takes; quoted the same section of Branch’s Ann.Statutes (Sec. 523, page 270) (2d Ed. Vol. 1, Sec. 543) and insisted, as appellant insists, that the infringement of the jury law required reversal without reference to whether injury to the defendant was shown. The motion for rehearing directed attention to the defendant’s challenge to the array of jurors which appeared in the transcript upon the same ground.

The opinion on rehearing, by Judge Latti-more, pointed out that the challenge to the array was not supported by affidavit of anyone, as required by Arts. 608 and 641, C.C.P., and this being true the court saw no error, aside from which the court said the matter was discussed and correctly decided on its merits in the original opinion.

The second motion for rehearing, again asserting that a reversal was required without reference to whether injury to the defendant was shown and citing numerous authorities, was overruled.

The reversal of this conviction upon the bill of exception without the appellant having complied with Arts. 608 and 641, C.C.P. and without any showing of injury or prejudice is contrary to the prior holdings of this Court and in direct conflict with Evans v. State, supra.

I respectfully dissent.


author: MORRISON, Judge.

text:
    Alex REEVES, Appellant, v. The STATE of Texas, Appellee.
    No. 36934.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    Rehearing Denied June 10, 1964.
    Herbert C. Martin, Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., B. G. Compton, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder with malice; the punishment fifteen years.

The State’s witnesses plus appellant’s written confession show that during the course of an argument in a cafe, appellant cut the unarmed deceased in the stomach with a knife and pursued him as he fled into the alley where he hit him with a board until someone intervened. In a stipulation in which appellant personally joined, it was agreed that deceased met his death as the result of knife wounds in the stomach. Appellant testifying in his own behalf stated that when deceased put his hand in his pocket, he cut him with the knife because he did not know what deceased had in his pocket. He admitted hitting deceased with a board after they left the cafe, but stated that he desisted when he saw that “there was no more fight in him.”

The sole question presented for review is the failure of the court to grant appellant’s motion for new trial which alleged jury misconduct which necessarily occurred, if it did, during their deliberation. No affidavit of a juror is attached to the motion for new trial and none of the jurors were called as witnesses by appellant at the hearing, nor were subpoenas issued for their attendance at such hearing. All that appellant has is an affidavit made by his attorney which asserts that he had spoken to some of the jurors (not naming them) and that they told him that during their deliberations they had discussed the length of time appellant would have to serve on a given sentence, but that no juror was willing to sign an affidavit setting forth such facts.

Reliance is had upon Clark v. State, 163 Tex.Cr.R. 54, 289 S.W.2d 288. In that case the attorney swore that he had spoken to Mr. Bloomingdale, the foreman, and that Bloomingdale had told him of certain discussions of the law between the jury and the bailiff, in violation of Article 673 Vernon’s Ann.C.C.P., and he further swore that the bailiff had told him of this unauthorized conversation, but that both men refused to make affidavits to such effect. In Clark also the appellant asked that each member of the jury as well as the bailiff be summoned so that they might be examined touching the facts set forth in his counsel’s affidavit. This request was by the court refused. In the affidavit before us here, no juror is named and none were summoned or examined. In Moore v. State, 160 Tex.Cr.R. 642, 275 S.W.2d 673, and McCoy v. State, 161 Tex.Cr.R. 179, 275 S.W.2d 676, several of the jurors did appear at the hearing on the motion for new trial and testified as to the jury misconduct which occurred within the jury room. We would not be inclined to extend the rule in the above cases and hold the vague and indefinite affidavit before us here, without proof or offer of proof to support it, shows that jury misconduct actually occurred. We are not impressed with appellant’s contention that the statement made by the court when he overruled the motion constituted a finding that the alleged jury misconduct had actually occurred.

Finding no reversible error, the judgment is affirmed.


text:
    Hulen Rufus CARROLL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36918.
    Court of Criminal Appeals of Texas.
    May 6, 1964.
    Rehearing Denied June 10, 1964.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Allen L. Stilley and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of amphetamine, a dangerous drug; the punishment, 730 days in jail.

No brief has been filed in appellant’s behalf and the record contains no formal bills of exception and no exceptions relating to the court’s charge.

The state’s evidence shows that upon a search of appellant’s apartment under authority of a search warrant a brown bottle was found in a drawer of a chest of drawers which contained 47 tablets, each containing approximately 10 milligrams of amphetamine.

The appellant arrived at the apartment after the tablets had been found and, according to the state’s evidence, admitted ownership of the pills and said he got them from a doctor and would have to check to see which one.

The jury resolved the fact issues against the appellant and the evidence is sufficient to sustain the jury’s verdict.

The informal bills of exception reserved in the statement of facts, viewed in the light of appellant’s testimony and the evidence elicited from the state’s witnesses without objection, show no reversible error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Robert McLANE, Appellant, v. The STATE of Texas, Appellee.
    No. 36670.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    Tom Moore, Jr., Waco, for appellant.
    Don Hall, Dist. Atty., Bob Hillin, Asst. Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault ; the punishment, enhanced under Art. 62, V.A.P.C., by reason of a prior conviction for an offense of like character, life imprisonment.

The state’s evidence was undisputed that on the night in question an armed bandit wearing a woman’s silk stocking over his head entered the Hickory Stick restaurant ■on North 18th Street in the city of Waco and robbed the place by assaulting the cashier, Marguerite Darden, and taking $758.12 from the cash register.

Mrs. Darden, called as a witness by the state, described in detail the robbery and positively identified the appellant as ' the man who robbed her. She stated that the stocking which appellant was wearing fit loosely over his head and had a runner in it, and that during the robbery she studied and could discern his facial features. She further testified that soon after the robber fled from the scene, some men brought a photograph into the place which she identified as a picture of the robber and that the following day she identified appellant at a police line-up as the man who committed the robbery.

Two photographs brought to the restaurant soon after the robbery were introduced in evidence by the state without objection, as state’s exhibits Nos. 1 and 2, and were shown by appellant’s own testimony to be his photographs.

Rev. Eddie Hundley, who was seated at a table in the restaurant with his family at the time of the robbery, upon being called as a witness by the state, also positively identified the appellant, at the time of the trial, as the robber. Rev. Hundley testified that at the time of the robbery he studied the facial features of the man, and after the man fled he identified one of the pictures exhibited at the scene as a picture of the man who had been in the place.

Proof was made that appellant had been previously convicted in the same court, in the year 1957, of the offense of robbery, as alleged in the indictment.

As a witness in his own behalf, appellant admitted having been previously convicted of the offense of robbery, as charged, but denied that he was in the Hickory Stick restaurant on the night in question and committed the robbery.

In his testimony, appellant described in detail his actions and movements on the night in question and the places where he went.

Several witnesses in the restaurant at the time of the robbery were called by appellant to testify. With the exception of one of them, each testified that due to their distance from the robber or to the distortion of his features by the stocking they were unable to identify appellant as the guilty party. The witness Jacob Green, an employee of the restaurant, testified that appellant looked like the man. On several occasions during questioning of the witnesses by appellant’s counsel as to appellant’s identity, a silk stocking was placed over appellant’s head and face in order that they could observe the extent of distortion of his facial features.

In his charge, the court submitted to the jury the appellant’s defense of alibi. Such defense was by the jury rejected in their verdict.

We find the evidence sufficient to support the judgment.

Appellant predicates his appeal upon four points of error.

By points Nos. 1 and 2, appellant insists that the court erred in permitting the two state’s witnesses, Marguerite Darden and Rev. Eddie Hundley, to testify that prior to identifying him in court they each identified him from a picture and in a police line-up. It is appellant’s contention that such was, in effect, bolstering and supporting the witnesses and therefore improper.

An examination of the record reflects that no objection was made hy appellant to the witnesses’ testimony with reference to their having identified him at the police lineup. Nor does the record reflect that appellant made any objection to the testimony of the witness Hundley'with reference to his observing a photograph at the scene which was of the man who had been in the restaurant and committed the robbery. Over appellant’s ■ objection, Mrs. Darden was permitted by the court to testify that soon after the robbery a man came into the place with a picture and “from what I could glimpse of it, I thought they had already caught the robber * * I went over there then and asked him to let me see the picture and when I looked at the picture, I said then, ‘well, you’ve already caught him.’ That that was the man that had robbed us.”

The record reflects that the picture was ■one of two pictures brought to the scene, within five or ten minutes after the robbery, by news editor William M. Veal, Jr., of radio and television station KWTX in Waco. In the testimony, reference is made to the pictures having been brought to the scene immediately after the robbery.

Under the record it appears that the actions and spontaneous statements of Mrs. Darden at the scene shortly after the robbery were a part of the res gestae and admissible as such. Pilcher v. State, 32 Tex.Cr.R. 557, 25 S.W. 24; Tinsley v. State, 52 Tex.Cr.R. 91, 106 S.W. 347; Clements v. State, 106 Tex.Cr.R. 628, 294 S.W. 589.

Appellant’s third point of error is that the court erred in permitting the state’s witness, Ranger Perry Dickerson, upon 'being called in rebuttal by the state, to testify that he was present in the jail •cell of appellant and heard him state that he did not want to say anything when asked by the district attorney if he would '.like to make a statement.

This testimony was admitted over appellant’s objection that it constituted statements made by him while under arrest and without proper warning. While statements made by an accused under arrest and not reduced to writing after proper warning are ordinarily inadmissible, the statement made by appellant in the instant case was properly admitted by the court, under Art. 728, V.A.C.C.P., as part of a conversation which had been given in evidence by appellant.

On his direct examination, appellant testified :

“Until I was indicted * * * I thought I was going to the electric chair, because the district attorney of this county told me that If I didn’t sign a statement and clear up these cases, that my life was in jeopardy, that I was going to the electric chair.”

Since appellant testified to part of the conversation with the district attorney, the state was authorized under the statute to offer other portions of the conversation. Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133.

Appellant’s last point of error is that the court erred in refusing to grant his motion for new trial on the ground of jury misconduct. In his motion, appellant alleged that during deliberations the jury received other evidence when one of the jurors, Charles W. Ortlip, Jr., borrowed a silk stocking from a female juror and placed it over his head in order to make a demonstration so that the other jurors could determine whether the state’s witnesses Darden and Hundley could identify the person who committed the robbery while such person was wearing a lady’s silk stocking over his head.

The motion was sworn to and supported by the affidavit of appellant’s counsel, in which he stated that:

“ * * * said jurors have discussed this occurrence freely and fully with counsel for Defendant, but none will agree to sign the affidavit to that effect.”

A motion to strike the motion was filed by the state on the ground that it was not supported by the affidavit of a juror or someone in position to know the facts.

Such motion to strike was by the court overruled, and testimony was submitted on the motion for new trial.

Upon the hearing, eleven of the jurors testified. From their testimony it was shown that the jury deliberated about an hour and a half before reaching their verdict and only one vote was taken on the question of appellant’s guilt. Each juror stated that his or her mind was made up that appellant was guilty, when the jury left the courtroom to begin their deliberations.

During their deliberations, one of the jurors asked if a woman’s 'stocking could be stretched. Thereupon, the juror Ortlip borrowed a stocking from a woman juror and placed it over his head. Some of the jurors testified that they did not pay any attention to the incident,' as they had seen similar demonstrations in the courtroom. Others' stated that they did observe the demonstration but that there was no real discussion of it. One of the jurors testified that the stocking episode “came around in a joking manner between the foreman and Mrs. Hansen.” Another juror testified that the incident “came up through [his] kidding of Mrs. Hansen.”

While as a general rule it is improper for a juror to perform experiments or demonstrations in the jury room, it is not every demonstration that calls for a reversal of the conviction. In the recent case of Ingram v. State, Tex.Cr.App., 363 S.W.2d 284, we said:

“In the absence of a showing that some new fact, hurtful to- appellant, was discovered by the examination and experiment, which influenced the jury in the case, such action by the jury would not require the granting of a new trial,”

citing Smith v. State, 90 Tex.Cr.R. 24, 232 S.W. 497, and also Smith v. State, 152 Tex.Cr.R. 399, 214 S.W.2d 471.

The record reflects that on several occasions during the trial there were demonstrations with stockings placed over the head of appellant as well as other persons. On one occasion, appellant’s counsel and three other men entered the courtroom with stockings over their heads.

Under the record and the evidence adduced, the trial court was authorized to conclude that no new fact, harmful to appellant, was discovered by the demonstration in the jury room which influenced the jury in the case. In refusing to grant a new trial, no abuse of discretion is shown.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Clifford Ray ELLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36991.
    Court of Criminal Appeals of Texas.
    May 27, 1964.

      James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Frank Watts, John Vance and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, forty years.

The evidence of the state reveals that about 4 p. m., while the deceased and Robert Rollins were repairing deceased’s truck in a vacant space between a beer tavern and the street, the deceased in looking for a rubber hose found it in appellant’s car, and he then hit appellant with the hose. At this time the appellant said: “I’ll be back; I’m going after a gun.” In an hour or two the appellant returned in a car, stopped behind the truck, and as he, with a shotgun in his hand, walked toward the deceased, who was standing near the truck with both hands in the air, saying “Clifford (appellant) don’t shoot,” the appellant shot the deceased and he fell to the ground. Appellant put his gun in his car and drove away. The witness Rollins said that the appellant “started to get another shell to shoot him again,” but when he told him he was going to call the police the appellant left; that he never heard the deceased make any threats; and that the deceased had no weapons in his hands or about his body at the time he was shot.

In response to a radio report about 4:10 p. m., Officer Middleton, while on the way to the scene of the shooting, met the appellant in his car and, after pursuing him with the car’s red lights flashing for six or seven blocks, the appellant stopped. A shotgun found in the car was shown to be the gun used in shooting the deceased.

The testimony of a physician shows that the death of the deceased was caused by a gunshot wound in the abdomen.

Testifying in his own behalf, the appellant stated that while talking to the deceased and Rollins near the truck, he learned they were looking for a rubber hose and he told deceased he had one in the back of his own car. The deceased asked to see it. After giving it to appellant, the deceased, while walking alongside appellant’s car, saw his (deceased’s) hose in the front seat of appellant’s car, picked it up and hit him with it. Appellant said to him: “I didn’t take your hose. I was going to loan you mine.” The deceased replied: “Well, I’ll break you from that,” and picked up a piece of iron pipe, which he soon dropped, and walked away. In a brief time Rollins told the appellant: “You better get gone; he’d (deceased) gone over there to the house for his pistol.” Appellant further testified that he bought six or eight bottles of beer and went home and about “an hour or so” later when he was leaving home his companion said: “You better put that old thing (shotgun) in the car and let him see it, at least he’ll know that you are protected, and he (deceased) won’t bother you.” When they drove into the lot to get more beer at the tavern the deceased started to his truck, and appellant “stopped him just about the time he started to get in the car door, and just about, he said, ‘Wait just a minute,’ said, ‘Let’s talk this over,’ and I hold him, ‘Okay, I don’t want you to be shooting me,’ because the boy done told me where he went after, and he walked on up to me, and he was, I would say not more than three and a half feet at the most, if that much, and I got the gun pointed at him, and well, just talking, and the next thing I know, he grabbed ahold of that barrel and, well, that is when that doggone thing exploded, hit him in the side.” On cross-examination the appellant testified that the deceased did not have any weapon in his hand when he shot him.

The owner of the tavern testified that he never saw the shooting, but was in the tavern when it occurred, and that afterwards he saw in deceased’s truck a pistol containing one shell which he delivered to the police.

The appellant in his brief contends that “it is reversible error for District Attorney on cross-examination to ask Defendant’s witness if he had heard about the Defendant fleeing from an alleged stolen automobile and if said witness had heard about a vagrancy conviction in another state, when no other evidence is offered by state to support District Attorney’s insinuation that Defendant was criminal generally.”

From the evidence on the main trial it is shown that the contention of the appellant arose as follows:

“Q. Now, you know this man’s general reputation for being a peaceful and law-abiding citizen, is that right?
“A. Yes, sir.
“Q. Well, in that connection, let me ask you if you had heard that in Raleigh, North Carolina, in February of 1953 he had been convicted of being a vagrant, a crime of vagrancy?
“A. No, sir, I didn’t.
“Q. You hadn’t heard anything about that? A. No, sir.
“Q. Had you heard that on the 23rd of August this year, that he was arrested along with two other persons while they were fleeing from a stolen car in the one hundred block of Pryor Street here in Dallas? A. Yes, sir.”

Appellant: “Your Honor, I’m going to object to that specifically with reference to 1953 conviction that would make this Defendant a minor of tender years, and any kind of an apprehension when he was that particular age would be completely inadmissible.

“The Court: Well, is it in the testimony about what the age of the defendant is?”
Appellant: “Well, the Defendant testified that he was twenty-five or twenty-six now, and in ’53 that would make him about fifteen or sixteen years old.
“The Court: I sustain the objection to any conviction while he was a minor, if that is when it was, but I’m not certain.”
State: “Well, that’s all right; we’ll just ask no more questions.
“The Court: All right, any further questions ?”
Appellant: “No, pass the witness.”

No objection was made to the question asking about the vagrancy conviction. No motion was made to exclude the evidence about the appellant fleeing from a stolen car, or to instruct the jury not to consider it, or to declare a mistrial. No exceptions were reserved to any act or failure to act on the part of the court pertaining to the vagrancy conviction or the stolen car. Therefore no error is shown. Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447.

The court charged the jury on the law of murder with and without malice, the law of self defense as to real and apparent danger, the law of accident, and also submitted the issue of the suspension of his sentence to the jury.

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

Opinion approved by the Court


author: McDonald, judge.

text:
    Borden Franklin FOWLER, Appellant, v. The STATE of Texas, Appellee.
    No. 36781.
    Court of Criminal Appeals of Texas.
    April 29, 1964.
    Rehearing Denied June 10, 1964.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Roy B. Johnson, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is failure to stop and render aid; the punishment, one year in jail and a fine of $1,000.00.

The testimony of Lorine Jones, the injured party, and witness for the state reflects that she was a passenger in a 1959 Dodge automobile belonging to Rufus J. Wallings-ford, her brother-in-law. A collision occurred at the intersection of 19th and Texas in Lubbock, Texas. The car in which the injured party was riding was struck on the right-hand side from the door up toward the hood. Mrs. Jones was,in a daze immediately following the accident and came to, or waked up, in the hospital where she remained five or six days. She had sustained injuries to her side and head, but no bones had been broken. The injured party further testified that she was treated by Dr. Brid-well and that she wears glasses now but did not prior to the accident in question.

Rufus Wallingsford testified that he was driving the 1959 Dodge with Lorine Jones as a passenger when the accident occurred; that the car that struck him was a De Soto, probably a ’54 or ’55, grayish in color, with a De Soto emblem on the back. Witness Wallingsford further testified that the car that struck them did not stop but went on by and he could not see who was driving as it was dark. On cross-examination he (Wall-ingsford) testified that he did not know the license number of the model of the De Soto which struck him and that Mrs. Jones complained of her back and hip, was in pain and shock, but was not unconscious after the accident.

James Edward Jones, the 14 year old son of the injured party, was an occupant of the Dodge when the accident occurred. His testimony concerning the accident coincided with that of Lorine Jones and Rufus Wall-ingsford. He testified that he thought the car which struck them was a De Soto and that it did not stop to see if anyone was injured or take his mother to the hospital.

Lonnie Foote, a police officer for the city of Lubbock, testified that he was called to investigate the accident and upon arriving, only one car was present at the scene, it having damage on the right front side up toward the front.

Upon an investigation of the accident, a ’53 green De Soto was found in the 2800 block of Avenue H in a parking lot, some 10 blocks from the scene of the accident. Three men were seen by the De Soto, one being the appellant, trying to pull the left front fender off the wheel, using a board.

Through Officer Foote’s testimony we see that he located appellant’s car some 25 minutes after the accident occurred. When Officer Foote walked up to appellant’s car, appellant stated: “We are trying to get the fender pulled out so we can go back to the scene of the wreck.” Officer Foote then asked who owned the car and who was driving it to which appellant stated that it was his car and he was driving it.

It should be noted at this point that the testimony of Officer Foote concerning appellant’s statement that he (appellant) was the driver and owner of the De Soto was objected to as inadmissible both as not being part of the res gestae and also as a statement made after appellant was under arrest.

It was stipulated that Lorine Jones was a passenger in the automobile in question and was injured and if a doctor were called, he would testify to her injuries.

Appellant contends that the above evidence is insufficient to support the verdict of the jury. In discussing this question we must first consider whether the testimony of Officer Foote, concerning statements made by appellant to the effect that it was his car and he was driving it, was admissible.

It is well settled that no single rigid principle governs the admissibility of evidence as res gestae. 24 Tex.Jur., Sec. 581. To be admissible as res gestae, statements or declarations must be substantially contemporaneous with the principal fact or transaction although they need not be precisely contemporaneous with it. 24 Tex.Jur. 585. The time element, however, is not the controlling factor insofar as admissibility of the evidence is concerned. The controlling factor being spontaneity or whether the statement made was instinctive. In other words, the statement or declaration must have been made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.

In Phillips v. State, 137 Tex.Cr.R. 206, 128 S.W.2d 393, appellant shot the deceased and walked several blocks to the Sheriff’s Office where she stated that she had come to give herself up and that she, “shot Charley”. She went on to tell about a quarrel and the subsequent shooting. The statements were held to be admissible notwithstanding the fact that she was probably under arrest.

In Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110, when the arresting officer arrived at the scene of the accident, appellant was seated in his automobile. Appellant, at the officer’s request, produced his drivers license. While the officer was questioning the owner of the panel truck, appellant left the scene on foot. The officer then left the scene in an attempt to find the appellant but being'unable to do so returned to the scene where he saw appellant lying down in some grass. The officer’s testimony that when he went to appellant and asked him to get up appellant “giggled” and said, “You know I’m pretty drunk,” was admitted as res gestae in spite of the time which must have elapsed between the officer’s first arrival and the statement and in spite of the fact that appellant was probably under arrest.

In the instant case appellant’s statement was made at a time when he was still attempting either to leave the scene of the accident or return to it, and when he was first discovered with an automobile which had been involved in the accident. We feel the statement attributed to him by Officer Foote was properly admitted as res gestae under the above cases. See also Cline v. State, 163 Tex.Cr.R. 141, 289 S.W.2d 291. It should further be pointed out in this regard that in Leahy v. State, 111 Tex.Cr.R. 570, 13 S.W.2d 874, the rule was stated. The rule is that the appellate court “will presume that any statements testified to were made at a time and place and under circumstances which render them admissible.” In the light of our conclusion that the statements by appellant, that it was his car and he was driving it, were properly admitted and the further circumstance connecting his automobile with the collision, i. e., the identification of the model and make of appellant’s automobile, the location of the damage on his car, the fact that it was the only accident investigated in the area by Officer Foote, and the proximity of appellant’s car to the point of collision, we conclude the evidence is sufficient to support the jury’s verdict.

Appellant next contends that there is a fatal variance between the allegations in the indictment and the proof relative to the name of the injured party. The indictment alleged in part that the injured party was Loraine Jones. During the course of the trial it was discovered and shown that the injured party’s name was actually Lorine Jones. The court, in its charge to the jury, directed them to find appellant not guilty unless they believed that the names, “Usually are or can be pronounced the same or are usually pronounced in such a wav that the names are indistinguishable.” In Rodriquez v. State, Tex.Cr.App., 363 S.W.2d 472, this court speaking through Judge Woodley stated, “It has been held that when the question of idem sonans arises at the trial it is a fact for the jury to decide under proper instruction of the court.” See also, Weitzel v. State, 28 Tex.App. 523, 13 S.W. 864 and Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653. The court so charged the jury in the instant case and having been so charged the jury’s verdict reflects its belief that the names are indistinguishable. We are not constrained to overturn a verdict of the jury which was present and heard the pronunciation of the names in question by the parties involved, it being well settled that the sound, not the spelling of the name, is controlling. Pedrosa v. State, 155 Tex.Cr.R. 155, 232 S W.2d 733; Jones v. State and Rodriquez v. State, supra. It should be pointed out further in this regard that it was agreed and stipulated “that Lorine-Jones, the lady who was a passenger in this-automobile, was injured in this automobile and if a doctor were called, he would testify to that effect.” No objection to the charge as given, or requested charge, appears in the transcript. Thus following our decisions under Art. 666 of Vernon’s Ann.C.C.P., -we conclude appellant’s further complaint to the charge in this regard is without merit.

Appellant’s further contention is-that the indictment is fundamentally defective and insufficient to charge an offense as-there is no offense of failure to stop and render aid by that name in the State of Texas. The indictment alleges in part as follows; that “* * * Borden Franklin Fowler did then and there unlawfully fail to stop and render aid to the said Loraine Jones, the person occupying said motor vehicle and injured as aforesaid, all necessary assistance in this, * * The appellant insists that the insertion of the word “aid” after the term “unlawfully failed to stop and render,” renders the indictment fatally defective. With this contention we cannot agree. In the absence of the insertion of the word “aid,” the instant indictment has been approved repeatedly by this court and can be found in Texas Practice,, Criminal Forms, Vol. 7, Sec. 1480. We further observe that the indictment correctly tracks Art. 1150 of Vernon’s Ann. Penal Code in all things pertinent to a statement of the offense and feel the appellant was clearly informed of the charge against him. If anything, the above insertion can be considered as mere surplusage. Morgan v. State, 145 Tex.Cr.R. 276, 167 S.W.2d 765.

Finding each of appellant’s contentions to be without merit, and no reversible error appearing; the evidence being sufficient to sustain the verdict, the judgment is affirmed.


text:
    Roy McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 36861.
    Court of Criminal Appeals of Texas.
    May 27, 1964.
    E. P. Williams (on appeal only), Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital, life.

The indictment alleged the theft of 200 pounds of copper wire of the value of $100 from Odell Burch on or about the 14th day of February, A.D. 1963. It also alleged a conviction for felony theft in 1961 and a conviction in 1953 for burglary.

The sufficiency of the evidence to sustain the jury’s finding that the appellant was guilty of theft of copper wire of the value of $50 or over is challenged.

Odell Burch, named in the indictment as owner of the copper wire, was general manager of San Patricio Electric Co-op with office and storeyard in Sinton.

On .February 14, 1963, the date on or about which the offense was alleged to have been committed, a coil of copper wire weighing 200 pounds ■ or more was in the quonset hut inside the cyclone fenced area. It belonged to the Co-op and was under the control and custody of Odell Burch.

Burch testified that he had sold and purchased copper wire and was familiar with the prices and values of such wire in San Patricio County and that area of the state and that 200 pounds of such wire was of the value of $100.

About a week after February 14th, 1963, the coil of copper wire was found to be missing.

Appellant’s confession was introduced in evidence which included the following: “On February 14, 1963, I came to Sinton, San Patricio County, Texas in my 1954 Pontiac. When I arrived at Sinton I went to the San Patricio Electric Co-op warehouse where I stole some copper wire, the San Patricio Electric warehouse is located near the railroad tracks and on the street that goes right through Sinton. I put the -roll of copper wire in the back seat of my car and then I took the stolen wire to the Industrial Salvage Yard that is on Hi-way 44 in Corpus Christi, Texas. I sold the wire for $21.25. I did not have permission to go— the San Patricio Electric Co-op and get this wire, or nobody had sent me the San Patricio Electric Co-op to get the wire. * * ie»

There was also evidence to the effect that corrosion found in the appellant’s car was compared and found to be the same corrosion as that found in the storeroom.

The appellant repudiated his confession and testified that he did not steal the wire.

He testified that he signed the statement because he was under duress and that he was not warned until after he made it.

C. B. Owen testified that he told the appellant that he did not have to make any statement about the matter and that any statement he did make could and would be used in evidence against him on his trial for anything concerning which the statement was made, and that he thereafter gave him a statement which was typed by Deputy Zapata in the Sheriff’s office, read over and voluntarily signed by the appellant. He denied that he threatened the appellant in any way.

Deputy Owen denied that the appellant was put in a cell with rattlesnakes or prodded with a cow prodder or struck or that anybody put a snake on him or was about to put a snake on him, as appellant claimed in his testimony.

The confession was admitted in evidence upon the testimony of Deputy Sheriff Owen and Zapata.

After the appellant testified and gave evidence to the effect that it was coerced and was not voluntary and was not given after statutory warning, no effort was made to have the confession withdrawn.

The issues as to the confession were submitted to the jury with instructions to disregard and not consider it if they found or had a reasonable doubt that the warning was not given or that it was not freely and voluntarily made or that it was induced by duress, force, threats, coercion, fear, fraud or other improper influence imposed at Refugio, on the road from Refugio to Sinton, at Sinton, or at any other place.

We see no error. Flores v. State, 171 Tcx.Cr.R. 598, 352 S.W.2d 287.

Theft of copper wire of the value of over $50 being established by the evidence, appellant’s identity as the person who committed the theft may rest alone upon his confession. Smith v. State, Tex.Cr.App., 361 S.W.2d 390; Morgan v. State, 170 Tex.Cr.R. 412, 341 S.W.2d 438; Smith v. State, 157 Tex.Cr.R. 21, 246 S.W.2d 187.

The prior convictions were proved as alleged and the appellant admitted that such convictions were final convictions and that he had served the sentences in the penitentiary.

In view of such admission the question as to the appellant being the defendant in the prior convictions alleged for enhancement of punishment was not submitted to the jury, and such submission was not required. Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pullen v. State, 129 Tex.Cr.R. 23, 84 S.W.2d 723.

Each of ten formal Bills of Exception appearing in the transcript bears the endorsement of the trial judge: “On this the -th day of February A.D. 1964, the Court, having duly considered the foregoing Bill of Exception No.-does hereby approve said bill so far as, but only so far as, the facts asserted therein are established by the record in this case, and such bill is refused and disallowed to any extent that it asserts any fact not established by the record in this case.”

Each of said formal bills also bears the notation, over the signature of appellant’s counsel: “Under provisions of C.C.P. Art. 760d, amended 1959, Defendant approves reasons assigned by judge, by notation hereon and Bill now stands approved with reasons of Judge as qualifications.”

As qualified, these bills show no error.

Bill No. 1 relates to the overruling of appellant’s motion to quash the indictment alleging that Negroes were arbitrarily excluded from the panel from which the grand jurors that returned the indictment were chosen.

Bill No. 1 was further qualified: “With reference to the portion of such bill contending that the indictment was bad because returned by grand jurors chosen from a panel from which negroes were arbitrarily excluded, the Court hereby certifies, as an additional reason for refusing said bill, the following, viz: That no evidence was adduced by the defendant in connection with the hearing on his ‘MOTION TO QUASH’ the indictment showing or tending to show what the population of San Patricio County is, or what percentage of such population consists of negroes, or how many qualified voters who were negroes were residing in San Patricio County, or how many negroes, if any, in said county are qualified for Grand Jury service, or that the jury commissioners arbitrarily excluded negroes from the panel from which was chosen the grand jurors who returned the indictment herein.”

No evidence having been offered in support of the allegations thereof, the motion to quash the indictment was properly overruled. Addison v. State, 160 Tex.Cr.R. 1, 271 S.W.2d 947; Bates v. State, 166 Tex.Cr.R. 177, 312 S.W.2d 675; Butcher v. State, 151 Tex.Cr.R. 458, 208 S.W.2d 899.

Bill No. 3 complains of the overruling of appellant’s motion for new trial on the ground of newly discovered evidence, but the evidence heard by the court is not before us.

Bill No. 1 also complains that the indictment does not reflect the dates of the commission of the offenses for which he was previously convicted.

The conviction for felony theft was alleged to have been on the 26th day of January, 1961, prior to the commission of the theft of wire on or about February 14, 1963. The conviction for burglary was alleged to have been on the 30th day of November, 1953, and it was alleged that it was a final conviction for an offense committed prior to the commission of the offenses set forth in the previous paragraphs of the indictment. This was sufficient under the rule stated in Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219; Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98, each of which was reversed for failure of the state to prove the allegations as to the prior convictions; and Guilliams v. State, 159 Tex.Cr.R. 81, 261 S.W.2d 598, which was reversed because the indictment was insufficient.

The remaining qualified bills have been considered and show no reversible error.

The judgment is affirmed.


author: BELCHER, Commissioner. MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Richard Mora GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 36628.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Rebearing Denied May 6, 1964.
    Second Motion for Rebearing Denied June 10, 1964.
    Arturo C. Gonzalez, Del Rio, for appellant.
    Alton R. Griffin, Dist. Atty., William M. Laubach and George H. Nelson, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is the possession of marihuana; the punishment, twenty-five years. The testimony of three officers reveals that the appellant was apprehended at a bus station in Lubbock as he approached a bus then scheduled for departure to Plain-view. Upon a search of the appellant by the officers, they removed a tobacco can from the inside of the sock on his left foot. The can contained a quantity of plant substance. The officers expressed their opinion that the plant substance was marihuana. The testimony of a chemist who made an analysis of the plant substance shows that it was marihuana. When the tobacco can and its contents were offered in evidence by the state, the court inquired of the appellant if he had any objection, to which he replied “No sir. In fact, we concede it is marihuana.”

The appellant did not testify or offer any evidence.

Appellant strenuously insists that his arrest was illegal, that the search of his person resulting in the finding of the marihuana was invalid, and that the introduction of the marihuana into evidence was error.

No objections were made to the testimony of the three arresting officers that a search of appellant’s person resulted in finding in his sock a tobacco can containing a plant substance which in their opinion was marihuana, to the testimony of the chemist that the can contained marihuana, or to the introduction in evidence of the can and its contents. The failure to timely and properly object to such evidence and its introduction into evidence waived any complaint as to the search. Haykel v. State, 158 Tex.Cr.R. 359, 255 S.W.2d 1014; Williams v. State, 166 Tex.Cr.R. 617, 317 S.W.2d 537; Burns v. State, Tex.Cr.App., 353 S.W.2d 860.

The evidence being sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

We shall discuss appellant’s contentions in the order in which they are raised in his brief. He asserts that we failed in our original opinion to pass upon the question of whether the trial court erred in refusing his “motion to supress the marijuana” and his requested charge to instruct the jury to find appellant not guilty unless they found the search to be legal. Both were made after the testimony concerning the contraband, and the contraband itself had been introduced without objection. He relies upon the text found in 2 Branch’s Ann.P. C., Sec. 405, p. 426, which reads as follows:

“If illegal testimony has been introduced by the State, without objection, it is error to refuse to withdraw it on defendant’s motion. Graves v. State, 14 App. [113] 120; Burke v. State, 15 App. 156; Clark v. State, 23 App. [260] 262, 5 S.W. 115; Mann v. State, 27 App. 580, 11 S.W. 640; Capps v. State, 40 Crim. 103, 48 S.W. 517; Morton v. State, 43 Crim. [533] 536, 67 S.W. 115; Stone v. State, 45 Crim. [91] 93, 73 S.W. 956; Lightfoot v. State [Cr.App.] 78 S.W. 1075; Hearne v. State, 50 Crim. 431, 97 S.W. 1050; Davis v. State, 65 Crim. 271, 143 S.W. 1161; Rosamond v. State, 97 Crim. 569, 263 S.W. 297.”

It should be noted that the most recent case cited in support of this text was decided by this Court in 1924.

A review of the authorities since that date will clearly _demonstrate that the text does not accurately state the law as presently interpreted by this Court. In Brown v. State, 155 Tex.Cr.R. 347, 235 S.W.2d 142, this Court said:

“Under these circumstances we find no objection to such testimony, but merely find a request that this testimony be stricken from the record after the same had been heard. * * *
This is a motion to strike out certain testimony and not an objection thereto. This motion should have been made at the time same was offered or given.”

In Renfro v. State, 156 Tex.Cr.R. 400, 242 S.W.2d 772, we said:

“The objection was first made after the witness had answered, and no reason is shown for not objecting timely thereto. The bill is insufficient to show reversible error in the court’s refusal to strike the testimony.”

In Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, we said:

“From this, U appears that no objection was made at the time the testimony was given and, coming as it did at the conclusion of the evidence, is too late.”

In Curry v. State, 161 Tex.Cr.R. 283, 276 S.W.2d 832, we said: .

“The record reveals that no objection was made at the time this testimony was admitted, and no reason is advanced why the obj ection was not made at that time. In the absence of a timely and appropriate objection, no error is shown.”

In Wyatt v. State, 162 Tex.Cr.R. 134, 282 S.W.2d 392, a charge similar to the one in the case at bar was requested, and we said:

“If the search was illegal, appellant should have urged an objection to the evidence obtained thereby at the time it was offered. This he did not do, but his counsel stated, ‘No objection, Your Honor/ when the marihuana cigarette was offered. He thus waived any objection to the marihuana cigarette being offered in evidence.”

In Ludwig v. State, 164 Tex.Cr.R. 295, 298 S.W.2d 166, we said:

“Appellant by his failure to object when he had opportunity to do so, waived any error in the admission of the testimony mentioned.”

In Williams v. State, 166 Tex.Cr.R. 617, 317 S.W.2d 537, we said:

“At the conclusion of the State’s evidence, appellant filed a motion requesting the court to withdraw from the jury’s consideration the testimony of all the State’s witnesses concerning the marijuana cigarette on the grounds that her arrest had been illegal. The record reflects that no objections were made on the grounds contained in the motion at the time the witnesses testified.”

In Crowson v. State, Tex.Cr.App., 364 S.W.2d 698, 699, we said:

“No objection was made to the answer and no motion made at that time to withdraw the same from the jury’s consideration. According to the court’s qualification of the bill, the motion to strike was not made until after both sides had rested. Such a motion came too late to preserve error.”

For the first time on rehearing appellant cites Hall v. Warden, Maryland Penitentiary, 313 F.2d 483, wherein the United States Court of Appeals, Fourth Circuit, held that the fruits of an illegal search will not support a conviction whether objected to or not. We do not deem Hall to be controlling because the search in that case was clearly illegal. It was made of Hall’s hotel room after he had been placed under arrest, and there was no showing of urgency. The opinion in that case pointed out that the court was not dealing with a search of Hall’s person incident to a lawful arrest. In the case at bar, Officer Aycock testified that at 3 :30 p. m. he received information from a confidential source that appellant had bought a can of marihuana and was preparing to leave the city on a bus at 3:50 p. m. and that upon receipt of such information he proceeded immediately to the bus station where he saw appellant approaching the bus. Though the facts before us aré not as fully developed as they were in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, we have concluded that they are sufficient to authorize the search in this case.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(concurring).

I concur in the overruling of appellant’s motion for rehearing and the conclusion that the facts are sufficient to authorize the search.


author: MOORE, Justice.

text:
    L. L. ADAMS, d/b/a Adams Motor Company, Appellant, v. EASTEX FINANCE COMPANY, Appellee.
    No. 35.
    Court of Civil Appeals of Texas. Tyler.
    May 14, 1964.

      C. L. Stanford, Canton, Boulter, Fowler & Tunnell, Tyler, for appellant.
    Martin Z. Sammons, Jr., McLendon & Tyner, Tyler, for appellee.
   MOORE, Justice.

This suit was filed by appellee, Eastex Finance Company, against appellant, L. L. Adams, a used car dealer, for the recovery of a deficiency judgment upon a series of promissory notes which Adams had theretofore executed for the purchase of twenty-two automobiles which the finance company had financed under what was termed as a “floor plan” method of financing, as well as for the recovery of damages resulting from a breach of contract by appellant in failing and refusing to repurchase from appellee thirty-nine automobiles, which ap-pellee repossessed from customers of appellant under the “retail plan” of financing.

Appellant answered with a plea of accord and satisfaction and a general denial. Although his answer shows that he is not in accord with any of the steps taken by the finance company in the termination of the business relationship, he does not seek any affirmative relief by reason of the method employed by appellee.

Under the “Floor Plan” the finance company agreed to advance Adams the funds with which to purchase automobiles for resale, according to the following agreement.

"FLOOR PLAN Notes representing loans secured by motor vehicles purchased for resale shall be payable one month after date. Out of the proceeds of each of said loans, we shall retain a discount of $3.00 flat, and place in reserve the sum of $10.00 for credit to your collateral reserve account. All such loans draw interest at the rate of 7% per annum from date. The net advance to you on floor plan loans shall not exceed our estimated wholesale value of the motor vehicle given as security, as determined by Wholesale Value Schedules furnished you from time to time. Prior to the renewal or extension of any note, we may at our option, require a reduction to reduce the note commensurate with the current wholesale value of the security. * * *
“We are to retain in our possession certificates of title and/or other evidence of ownership to all motor vehicles floor planned until the notes secured by same are fully paid.”

Under the retail plan the parties agreed as follows:

“RETAIL PLAN Unless otherwise agreed upon in writing at the time of purchase, notes are to be endorsed without recourse, provided however, that any vehicle repossessed by us for nonpayment of the note, for any other reason, will be repurchased by you when delivered to your place of business, for the amount of the unpaid balance then owing, less a reasonable allowance for unearned discount and insurance; and providing further, that in the event we are unable to repossess any motor vehicle within the period of six months after default, by reason of conversion, seizure by any Governmental Agency, or for any other reason, the unpaid balance of any such note may be charged to reserves hereafter accumulating to your credit.”

Approximately seven months after commencing operations under these plans, appellant fell in arrears in the payment of all twenty-two notes which he had executed to the finance company on automobiles which he had purchased and was offering for sale under the “Floor Plan”. Twelve of the notes were secured by chattel mortgages upon the respective vehicles, granting mortgagee the authority to take possession of and sell same at public or private sale, with the mortgagor agreeing to pay the deficiency. There were no separate chattel mortgages granting such power on the other ten automobiles; however, the notes executed by appellant did recite that the vehicles were mortgaged as security for the debt in accordance with an agreement theretofore made by the parties.

During the latter part of November, 1960, appellee, Eastex Finance Company, after having given appellant a week’s notice, went upon appellant’s used car lot at Grand Saline, Texas, and repossessed all twenty-two automobiles financed under the “Floor Plan”, taking them to Tyler where they were sold.

At the time of the trial appellee had been compelled to repossess the thirty-nine automobiles which appellant had sold his customers and which had been financed by the company under the “Retail Plan” because of the failure of appellant’s customers to pay the installment notes.

After a trial before the court, without a jury, the court, in his finding of fact and conclusions of law, found that all twenty-two promissory notes executed by appellant to the finance company covering automobiles financed on the “Floor Plan” was past due and no cash payments had been made thereon ; that the deficiency, after allowing credit for the sale price of the twenty-two automobiles and the allowance for appellant’s reserve account, was $7,952.04, including interest; that appellant gave no express consent to appellee to remove the automobiles from his lot, and that the price at which appellee sold the automobiles after repossessing same were reasonable prices; that appellant endorsed to appellee “without recourse” thirty-nine promissory notes executed by his customers for the purchase of automobiles; that all thirty-nine customers defaulted in the payment of the notes and appellee repossessed all thirty-nine automobiles because of non-payment; that some of the repossessed automobiles were offered to appellant for repurchase, but that he refused to repurchase same; that the difference between the face amount of the thirty-nine notes and the amount appellee received for the automobiles upon resale was $16,229.86, after allowing all reserves and other credits.

The court concluded, as a matter of law, that all of the twenty-two notes executed by appellant under the “floor plan” were due and unpaid; that appellant’s failure to repurchase the vehicles repossessed by ap-pellee under the “retail” notes constituted a breach and an anticipatory breach of the contract; that appellee was forced to repossess the thirty-nine vehicles in order to mitigate its damages for breach of the contract and that since appellant breached the “Retail Plan” contract appellee was entitled to be placed in the same position he would have occupied had the contract been completely performed by the appellant, i. e., appellee was entitled to judgment for damages in an amount equal to the unpaid balance due on retail notes in default after allowance of all credits.

Based upon such findings and conclusions, judgment was rendered for appellee, Eastex Finance Company, for $24,181.90, to which appellant excepted and perfected this appeal.

Appellant excepted to the findings made by the trial court, and has assigned seven points of error for a reversal of the judgment.

By point one, appellant alleges that the finding by the court that the market value of the twenty-two automobiles repossessed from appellant’s used car lot was not comparable in value with the unpaid balance due on all the notes is contrary to the great weight and preponderance of the evidence. The finding on “comparable value” was in no way essential in support of the judgment and was immaterial. Appellant’s point of error assigned thereto therefore becomes immaterial and is therefore overruled. Apparently the only reason for the complaint upon this finding was because appellant felt it was to some extent contrary to his defense of accord and satisfaction, but even so, the question of “comparable value” not being an essential element of accord and satisfaction, the point assigned would still be immaterial. Furthermore, the failure of the court to make finding upon any of the elements of accord and satisfaction was not made the basis of any assignment of error.

By points two, three, and four, appellant takes the position that the evidence does not support the finding by the court that the twenty-two floor plan notes were past due and unpaid and no payments were made thereon by appellant and the finding that appellee resold the automobiles for reasonable prices, and by point five appellant contends that there is no evidence to support the finding by the court that the “Floor Plan” notes were secured by chattel mortgages. These assignments are overruled. We have reviewed the entire record and find that there is ample evidence to support each of these findings. The rule well established that if there is any evidence of probative force to support a finding of fact by the trial court, such finding is binding on this court. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Since appellant did not seek any affirmative relief for fraud, conversion, or breach of contract growing out of the foreclosure of the chattel mortgages, some, if not all, of the findings were immaterial to any issues in the case.

Point six alleges the trial court erred in finding and concluding that appellant failed to repurchase all of the vehicles repossessed by appellee under the “Retail Plan” notes and that such amounted to a breach and an anticipatory breach of the contract because same was not supported by the evidence. Appellee’s agent, Dewey Chelf, testified that he had offered some of the repossessed vehicles to appellant but that he refused to accept any of them saying that he was unable to pay for them. The court chose to accept this testimony and base findings of fact thereon, and we are bound by this finding under the rule pointed out above.

In point seven appellant contends that as a matter of law the court erred in holding that the contract was breached and as a result thereof appellee had the right to sell the vehicles which he repossessed under the retail plan and sell same and recover judgment on the deficiency, less credit for his reserve account, because the contract did not authorize appellee to sell the vehicles. Appellant argues that since the notes were sold to appellee “without recourse” appellee cannot now bring suit upon the notes. This would no doubt be true if appellee had brought this suit for the purpose of collecting on the promissory notes. But as was pointed out in the beginning, this portion of the suit was not brought for the purpose of collecting on the notes hut was brought against appellant for damages resulting from his breach of his contract whereby he agreed to repurchase all the automobiles repossessed from his customers because of their failure to pay their notes which appellant had assigned to appellee. Appellant’s refusal to repurchase the repossessed automobiles which were tendered to him constituted a breach of the contract as to those automobiles tendered. Such conduct, we think, then raised a fact issue as to whether or not appellant intended to repudiate the entire contract calling for the repurchase of the remaining automobiles. Based upon appellant’s acts and conduct in this regard, the trial court found that appellant did not intend to repurchase any of the remaining automobiles repossessed in the future, which constituted an anticipatory breach of the entire contract. Under these circumstances, appellee was relieved of the responsibility of continuing to make a tender of each of the automobiles repossessed. In other words, appellee, being the innocent party, had no duty to continue performance or hold himself in readiness to performance, but had the right to rescind the contract and sue for damages for the breach of the contract. Young v. Watson, Tex.Civ.App., 140 S.W. 840; Main v. Hopkins, Tex.Civ.App., 229 S.W.2d 820.

As pointed out above, all thirty-nine of the retail plan notes were in default and appellee had repossessed and sold all of the automobiles covered by these notes before this suit was filed. Under the terms of the agreement appellant was obligated to repurchase each of the automobiles and to pay appellee an amount equal to the unpaid balance on each of the notes. Appellant having breached the contract, appellee was entitled to damages equal to the pecuniary loss suffered and was entitled to be placed, as nearly as possible, in the same position that he would have occupied had the appellant performed the contract. Pollack v. Pollack, Tex.Com.App., 46 S.W.2d 292.

In answer to appellant’s argument that appellee had no authority to repossess and sell the vehicles, we observe that attached to each of the retail notes, which were executed by appellant’s customers, was a chattel mortgage securing payment and authorizing repossession and sale. Appellant assigned all thirty-nine mortgages to appellee along with the notes. Appellee, being the owner of the chattel mortgages by reason of the assignment, had the authority to repossess the automobiles and sell the same under the terms of the chattel mortgages, as well as a duty to mitigate the damages. Appellant’s sixth and seventh points are overruled.

The judgment of the trial court is affirmed.

DUNAGAN, Chief Justice, took no part in the consideration or disposition of this case for the reason that he presided as trial judge on the case in the court below.


author: MURRAY, Chief Justice.

text:
    Herman O. KELLNER et al., Appellants, v. TEXAS OSAGE COOPERATIVE ROYALTY POOL, INC., et al., Appellees.
    No. 14267.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1964.
    Rehearing Denied May 27, 1964.

      Ronald Smallwood, Fred V. Klingeman, Karnes City, for appellants.
    House, Mercer, House & Brock, San Antonio, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by appellants against appellees in the District Court of Karnes County, Texas, seeking to cancel two deeds executed by Henry Kellner, Sr. and wife, Mary Kellner, dated October 16, 1929, conveying one-half of the oil, gas and other minerals in lands located in Atascosa and Karnes Counties, and fully described in the petition, to T. Fred Evins, W. M. Morgan and J. R. Klumpp, as trustees of Texas Osage Co-operative Royalty Pool, and to Flag Oil Company of Texas, a Texas corporation, and further seeking a declaratory judgment and an accounting from certain of the appellees. The trial court found the two deeds to be valid, and further found that the ten children of Henry and Mary Kellner each owned a Vio interest in the Headright Certificate No. 208, given to Henry and Mary Kellner as part of the consideration for the above deeds, and that each of the children would be entitled to have stock issued to them on a pro rata basis, upon surrender of said Headright Certificate No. 208. From this judgment Herman O. Kellner and wife, Louise Kellner; Oscar A. Kellner and wife, Etta Lee Kellner; Edgar Kellner and wife, Ava Ray Kellner; Henry R. Kellner and wife, Melanie Kellner; and Nora K. Hier-holzer and husband, Wilfred Hierholzer, have prosecuted this appeal.

A pre-trial was held in this case and a pre-trial order entered, approved and signed by attorneys for all the parties, in which it is stated that appellants agreed that the two deeds were valid when executed by Henry and Mary Kellner; and the trial court properly so held in his judgment. There is nothing to indicate that these deeds have since become invalid.

The judgment was rendered upon a motion for summary judgment, and in view of the admissions made and the undisputed facts, there was no error in the trial court’s judgment in refusing to set aside the two mineral deeds. Meiners v. Texas Osage Co-op. Royalty Pool, Inc., Tex.Civ.App., 309 S.W.2d 898. Henry and Mary Kellner during their lifetime owned in fee simple all of the land here involved, and are the common source of title as to all parties concerned. They executed the two mineral deeds above described and received as a part of the consideration Headright Certificate No. 208. Thereafter, Mary Kellner died on October 25, 1942, leaving all of her property to her husband, Henry Kellner, Sr., who died on November 23, 1946, leaving all of the property to his ten children, share and share alike. The mineral deeds were executed to the three trustees, T. Fred Evins, W. M. Morgan and J. R. Klumpp, who were operating under a declaration of trust for the Texas Osage Cooperative Royalty Pool. The controversy here relates to the proper construction of paragraphs 15 and 16 of this declaration of trust which are as follows:

“Fifteenth
“It is specifically understood and agreed and the certificate holders by the acceptance of their certificates of interest in this trust (whether by original issue or transfer) agree that at any time it may be deemed practicable by the trustees (after receiving competent legal advice) that a corporation organized and created under the laws of Texas for the purpose of receiving the property of the trust estate and carrying on the purpose of this trust may be formed, such action may be taken; the trustees hereunder acting as incorpo-rators and first Board of Directors thereof, and the certificate holders hereunder shall receive shares of corporate stock in exchange for and in lieu of the trust certificates issued hereunder, said shares to represent a proportion of the entire capital stock of said corporation identical with the proportion of the interest in the trust represented by the trust certificates held by them. The trustees hereunder are authorized and empowered to make proper conveyance of all the trust estate to said corporation and to execute and deliver all documents necessary or proper in the premises. Upon the complete investiture of said corporation with all of the right, title and interest or the property in the trust estate this trust shall be null and void.
“Sixteenth.
“This trust shall continue for twenty-one years after the death of the last survivor of the following named persons: Dorothy Jean Gilliland, daughter of A. W. Gilliland of Oklahoma City, Oklahoma; Sally Clarkson Blake, daughter of Aldrich Blake of Oklahoma City, Oklahoma; Maryanna Rupley, daughter of Ira L. Rupley of San Antonio, Texas; Ira Boyd Hensley, son of Primus V. Hensley of San Antonio, Texas; Ralph C. Rubley, Jr., son of Ralph C. Rupley, Sr., of Houston, Texas; Robert W. King, son of A. E. King of Oklahoma City, Oklahoma; John Evans Lybrand, son of Walter A. Lybrand, of Oklahoma City, Oklahoma; provided, however that if at any time after the expiration of a period of fifteen years from the date hereof the annual income of this trust is less than One Thousand Five Hundred Dollars ($1,500.00), and it is the unanimous opinion of the trustees hereunder or the Board of Directors of the corporate successor of this trust (if any) that the income from the trust estate or properties is not likely to increase beyond said amount, then and in that event, this trust may be dissolved in a manner agreeable to the law of the State of Texas.”

Appellants contend that there is a conflict between paragraphs fifteen and sixteen of the declaration of trust. We do not agree. These two paragraphs must be construed together, and if possible in such a manner as to give meaning to both. When this is done it is plain that there is no conflict. Under the terms of paragraph fifteen the trustees could form a corporation, transfer all of the trust properties to the corporation, and thus terminate the trust. This the trustees did on August 19, 1941. Thus the provision in paragraph “Sixteenth” to the effect that the trust shall continue for twenty-one years after the death of certain named persons became impossible, because the trust had already terminated in a legal manner under the provisions of paragraph “Fifteenth.” The corporation may yet be terminated under the second part of paragraph sixteen if the income should be less than $1,500 per year and the other circumstances stated in paragraph sixteen have arisen and the conditions stated therein have been complied with. When this construction is placed upon paragraphs fifteen and sixteen of the trust agreement there is no conflict and the intention of the creators of the trust becomes apparent.

The trial court properly found that Head-right Certificate No. 208 issued by the trustees to Henry Kellner, Sr., and wife, Mary Kellner, for 1.90 shares of stock in the newly formed corporation was personal property' — -the certificate so stated at the time Henry and Mary Kellner accepted it.

The trial court properly found that each of the ten children of Henry and Mary Kellner, named in the judgment, was entitled to a one-tenth interest in the head-right certificate, and that each was entitled to have stock issued to him or her in lieu of such interest on a pro rata basis, if and when the headright certificate is surrendered to appellees in the manner and within the time stated in the judgment.

Appellants attempted to take the deposition of D. N. Cushing, one of the trustees of the Texas Osage Cooperative Realty Pool, which privilege was denied to them by the trial court. The trust estate is now in the hands of the corporation and has been since August 19, 1941. Appellants are not stockholders in this corporation because they have not as yet surrendered their interest in Headright Certificate No. 208, and received their pro rata share of stock in the corporation. They are not entitled to an accounting from the corporation until they become stockholders. The trial court properly held that appellants will become entitled to all the rights and privileges of stockholders if and when they become stockholders. Appellants consented to the order restraining them from taking the deposition of D. N. Cush-ing after he furnished them certain information in an affidavit executed by him, and appellants did not attempt to withdraw such consent until just before the trial began. This request to withdraw their consent came too late.

We do not agree with appellees’ contention, made in their cross-point, to the effect that the demands of the Kellner children for the issuance of stock came too late and was barred by the four-year statute of limitations, or was a stale demand. There is no time stated in Headright Certificate No. 208, within which such demand must be made.

The judgment is affirmed.