author: CULVER, Justice.

text:
    SHEFFIELD DIVISION, ARMCO STEEL CORPORATION, Petitioner, v. Mrs. Walter O. JONES, Jr., et al., Respondents.
    No. A-9748.
    Supreme Court of Texas.
    Feb. 26, 1964.
    Rehearing Denied April 15, 1964.
    Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, with above firm, Austin, Butler, Binion, Rice & Cook, James E. Crowther and W. N. Blanton, Jr., with above firm, Houston, for petitioner.

      Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for respondents.
   CULVER, Justice.

This suit was brought against Armco Steel Corporation and Robert McWhirter, its maintenance foreman, for exemplary damages as authorized by law where an employee’s death is caused by homicide from the wilful act or omission or gross negligence of the employer at the time of the injury. Walter Jones, Jr., while in the scope of his employment with Armco Steel Corporation was killed as the result of an explosion in December, 1959. His beneficiaries were paid compensation as provided by the Workmen’s Compensation Act.

The trial court entered judgment against Armco on the jury’s findings of gross negligence but granted the non obstante vere-dicto motion of McWhirter and entered a take-nothing judgment as to him. The Court of Civil Appeals held that the evidence supported the finding of gross negligence as against Armco, but reversed the judgment on other grounds and remanded the cause to the trial court. It affirmed the take-nothing judgment as to McWhirter. 369 S.W.2d 71.

We have concluded that the evidence offered on the trial of this case does not support the finding of gross negligence on the part of the employer and reverse and here render judgment in favor of the petitioner, Armco Steel Corporation.

Armco operates a steel mill in Harris County composed of separate plants, one of which is the coke plant. Coal is there heated under pressure and processed into coke. The gas emitted from that operation enters a primary cooler that extracts the greater part of the tars from the gas and is then conducted through large pipes into precipitators. The precipitator involved, which may be termed a gas purifying machine, is a large metal tank connected with two small tanks commonly called “ears,” one on each side. Electrodes are suspended inside the precipitator which are charged with electricity and cause the tar remaining in the gas to be solidified and attracted to the precipitator walls. A pre-cipitator is about 35 feet high and 20 feet in diameter. There was one of a bank of three precipitators of similar design in the area where the employees were working. The precipitator No. 2 in which the explosion occurred was installed in 1956. The other two had been installed some years earlier. Under normal operations raw gas is piped into the precipitator and clean gas is piped into the ear compartment. The purpose of this is to create a. pressure in the ears to keep out the raw gas which will foul the insulator. When insulators become dirty they will sometimes-crack or break. On the precipitator there-is a vent from which the steam will exit. After precipitator No. 2 was installed, from-the beginning there was difficulty with respect to gas coming into the precipitator after the inlet valves had been closed.. Every second or third time of working on the precipitators there would be an indication of gas. This situation existed over a period of years and was brought to the attention of Mr. McWhirter on several' occasions. One of the motor inspectors-testified that, based on his experience over the years, the reason the gate valves would not close was due to the accumulation of tar in the grooves in which the gate sets- and it is not possible to purge all of the-gas by the use of steam while gas is continuing to leak through the valve. Ordinarily the precipitators were cleaned by the-motor inspectors about once a week. On-such occasions the motor inspectors would: disconnect the electricity lead and then the ears and the precipitators would be steamed to purge them of gas. The steam-also served to dampen the carbon deposits which otherwise when exposed to ■the air had a tendency to smolder and blaze up. The by-products department was ■charged with the responsibility of closing the valves and shutting off the flow of :gas into the precipitator and turning on the steam. When the steam was turned •into the precipitator it would also pass •into the ears. The fact that gas was present in the precipitator after it had 'been steamed was reported to the supervisors on many occasions. It was customary to resteam if the odor of gas was ■present and the motor inspectors had the •right to call for this to be done. After ■the valves were closed and the steam had 'been applied the presence of gas could be fairly well discovered by looking at the ■steam. If it was not discolored the gas •would have been cleared away.

On the morning of the explosion Mr. Jones, the deceased, and Mr. Phillips, both •motor inspectors, were directed to check •out precipitator No. 2. The electric current was shut off and the usual steaming operation conducted. Mr. McWhirter was "told that gas was leaking into the precipi-tator and this fact was also reported to the by-products operator who had the valves ■checked to see if they were closed and the precipitator was resteamed. These two employees decided to clean the insulator in the east ear and then after the lunch hour to change the one in the west ear which ■appeared to be broken.

About one o’clock p. m., when they •opened the door of the west ear, the odor ■of gas appeared to be about the same as it was in the morning. They did not call for the precipitator to be resteamed nor report that fact. They proceeded to clean ■out and remove the carbon deposits and after being engaged in that process for about 15 or 20 minutes the explosion occurred which resulted in the death of Jones and injuries to Phillips. Phillips testified that just prior to the explosion he saw sparks flash in front of him but he could offer no explanation as to what caused the sparks.

' Mr. McWhirter and another foreman had from time to time assured the motor inspectors that the odor they smelled was not gas, but resulted from the fumes given off by the tar deposits and sometimes they used gas masks which were furnished by the company. No gas or explosion meters had ever been used in the area. After the explosion there was a flame coming out of the open gas line which was no longer connected to the left ear. This was the clean gas coming out of a gate valve which will not seal off the gas very long.

In this case the jury found that the valves to precipitator No. 2 were clogged with tar in sufficient amounts to render said valves defective in the use to which they were being put; that Armco failed to provide adequate valves to prevent gas from entering the precipitator No. 2 while work was being performed thereon; that there were inadequate venting facilities on pre-cipitator No. 2, and that insulators on pre-cipitator No. 2 were so located as to subject repairing motor inspectors to an unreasonable risk; and that all of these facts were known to foremen and supervisors and constituted gross negligence. So far as we note, the only defective or inadequate condition of the valves disclosed by the evidence was that prior to the accident in question tar gradually accumulated in the grooves making it increasingly difficult to completely close the valves.

An expert testified that a plug valve would be best adaptable for service in the precipitator rather than the tongue and groove type. But this latter type had been used for a good many years and the fact that Armco could have obtained a better valve on the market and failed to do so would not alone show gross negligence. Similarly, the facts that on other precipi-tators the venting facilities were more adequate and that insulators were arranged so as to be more accessible would not be sufficient to convict Armco of gross negligence.

There is no question here as to the rule of law applicable to cases of this character where exemplary damages are sought In one of the later expressions by this court, Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709, we reaffirmed the definition stated in Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, namely that:

“Gross negligence, to he the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” (Emphasis added.)

Additionally the court quoted from 13 Tex. Jur., p. 241, § 133 as follows:

“ ‘In order that a recovery of exemplary damages may be sustained, the plaintiff must show, not merely that the defendant could have or ought to have foreseen and prevented the loss or injury of which the plaintiff complains, but that he acted intentionally or wilfully, or with a degree of “gross negligence” which approximates a fixed purpose to bring about the injury of which the plaintiff complains. The mental factor is also described in the reports by the terms “malice,” “fraud,” “oppression,” “recklessness,” and the like. Regardless of the expression which is used to describe it, the purpose or intention of the defendant is determinative of. his liability for exemplary damages.’ ”

In the early case of Southern Cotton Press & Manufacturing Co. v. Bradley, 52 Tex. 587, the definition given by the trial court to the effect that gross negligence is a greater or a higher degree of negligence than ordinary negligence was held to be erroneous. The court went further to say that:

“Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise a presumption of a conscious indifference to consequences. Such indifference is morally criminal and if it leads to actual injury may well be regarded as criminal in law.”

Also that:

“A mere act of omission or non-feasance, to be punishable by exemplary damages, should reach the border-line of a quasi-crimmsl act of commission or malfeasance.”

In Bennett v. Howard the defendant’s field superintendent gave instructions to blow the well in under pressure and to run the tubing in under pressure. When he was reminded that that pressure was not customary he replied: “that is the way he wanted it done and he intended it done that way.” It was generally known among the oil men about the gas pressure in that field and that wells were not brought in under pressure such as was done on that occasion. The evidence showed that it was very hazardous to run tubing under pressure and that it had been known to blow out. The Court of Civil Appeals relying on Morton Salt Co. v. Wells, Tex.Civ.App., 35 S.W.2d 454, affirmed 123 Tex. 151, 70 S.W.2d 409, held that a fact question was raised as to gross negligence, being of the opinion that negligence may be gross, not only when it is evidenced by an entire want of care, but even when the exercise of so slight a degree of care as to justify the conclusion that the party was indifferent to the welfare of others. The Supreme Court reversed saying that the testimony “when tested by the rule which has long prevailed in this State [we] find no basis for a recovery of exemplary damages.” This court in that case, after citing and quoting liberally from Texas Pac. Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262; Ford v. Magnolia Petroleum Co., 118 Tex. 461, 17 S.W.2d 36, and Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022, made the following pronouncement:

“We adhere to the rule announced in the cases above mentioned, and any ■ rule to the contrary announced in other cases, in conflict therewith is hereby overruled.”

The respondents do not disagree with the rule laid down in Shuford and other decisions, but rely upon Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409. They request that we take note in that case of the facts relating to inspection, the “care” exercised by the employer in repairing the motor on the previous day and that other than shocking and stinging effects, there was no indication of any serious injury in the several years that the machine had been in use. If these facts are referred to for the purpose of showing that the court in that case held that although an entire want of care was not shown, nevertheless the company was guilty of gross negligence, then we say it has been effectively overruled by Bennett v. Howard, supra, but we do not so construe that opinion. After reciting the facts that the machine in use was so worn as to shock and sting on being touched; that the levers were not properly insulated; that some weeks prior to the accident the rubber casing had been burned back about three feet, and that the deceased was shocked and knocked down while operating the machine the day before he was electrocuted although the defendant’s employee took the motor out and reinstalled it the same afternoon stating that it had been repaired.

The court said that “efforts to render it safe, if any were made, were but of the slightest character.” Aside from that statement by defendant’s employee that the motor had been repaired, the record clearly showed that no care had been taken at all. Obviously the motor had not been repaired and the court was justified, we believe, in concluding that there was an entire want of care in that respect as well.

The issue here is not whether there was negligence on the part of Armco, but whether the negligence was gross as defined by this court in the several cases above cited.

As said in Shuford, supra:

“ * * * There can be no partial exercise of ‘ordinary care.’ It exists, as a degree, in completeness, or it is totally wanting in any given case. While in a given case, ‘ordinary care’ may not exist, yet there may exist at least slight care. * * * ”

It may be said that the accident in this case was the result of negligence because the company did not use the care that was required to avoid the accident. But the absence of this care does not authorize the jury to levy damages upon the company beyond the limit of compensation for the injury actually inflicted. To justify that penalty there must have been some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences. The same rule is followed in most other jurisdictions. See 98 A.L.R. 262.

Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806 holds that when an injury is caused by negligence any attempt to differentiate variations from slight to gross negligence is fraught with maximum difficulty. Wantonness, on the other hand, connotes intentional wrongdoing. Where malicious or wilful injury is not involved, wanton conduct must be alleged and shown to warrant the recovery of punitive damages. Conduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others.

The respondents cite us to certain automobile collision cases and others brought under the guest statute which they say disclose recent developments in the field of “gross negligence” and give additional meaning and clarity to that term as theretofore defined.

In support of the reference, to recent developments in this field respondents cite the following cases: Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022; Higgenbotham v. O’Keefe, 340 S.W.2d 350, Tex.Civ.App., wr. ref. n. r. e.; Union Transports, Inc. v. Braun, 318 S.W.2d 927, Tex.Civ.App., wr. ref. n. r. e.; Goff v. Lubbock Building Products, 267 S.W.2d 201, Tex.Civ.App., wr. ref. n. r. e. The first two are brought under the guest statute. Both of these cases cite and apply the definition of gross negligence as given in the Shuford case.

In Bowman v. Puckett, the defendant was driving his automobile within the city limits of Weslaco on the principal north and south street through the city at such a rate of speed that after colliding with a large palm tree the automobile was so crushed and bent that neither the front nor the rear wheels would touch the ground. Additionally, it was shown that the defendant was driving at that rate of speed with knowledge of the fact that his brakes were defective.

In Rowan the finding of the lower courts of gross negligence was by this court reversed and judgment rendered.

In Higgenbotham the Court of Civil Appeals modified the judgment by ordering a remittitur. There was abundant evidence supporting the jury’s finding that Higgen-botham was driving his automobile while intoxicated and the finding of gross negligence was supported by the evidence.

Union Transports was another case where remittitur was ordered and no exemplary damages were awarded. The court in that case refers to our decision in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, and says we there held “that a combination of acts of ordinary negligence may, under certain circumstances, amount to gross negligence.” The opinion does not stand for that proposition.

In Goff v. Lubbock Building Products the Court of Civil Appeals, after citing the rule laid down in Bennett v. Howard, held that the defendant was guilty of gross negligence so as to warrant the assessment of exemplary damages against the defendant-owner of the truck involved in the collision. The defendant employed as a truck driver a boy 16 or 17 years of age. The defendant was told that the boy had no driver’s license and had little or no experience in driving a truck. The defendant was told on the first day that the brakes on the truck were defective; on the second day the attention of the defendant was again called to the defective condition of the brakes. Some brake fluid was added by one of defendant’s employees which did not remedy the defects. Thereafter the matter was again reported to the defendant. Again the defendant was personally present and saw from the operation of the truck that the brakes would not hold. Later on that day the collision took place as a result of the defective brakes. There was an entire want of care on the part of the employer in that case aside from the adding of the brake fluid, but at that time the cylinder was already three-fourths full of brake fluid and the condition of the brakes was twice called to the defendant’s attention thereafter.

As pointed out by the respondents we have heretofore held with respect to Art. 6701b, § 1, that “heedlessness or reckless disregard of the rights of others” conveys the same meaning as does the term “gross negligence” as that term is defined in Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 and other cases. Southern Cotton Press & Manufacturing Co. v. Bradley, 52 Tex. 587; Rowan v. Allen, supra, and Bowman v. Puckett, supra.

If, as insisted by the respondents, the rule has been somewhat less strictly applied to cases brought under the guest statute, which we do not concede, it is to be borne in mind that under that statute the damages are compensatory and not by way of punishment. On the other hand exemplary damages are awarded in addition to all compensatory damages and as a punishment against the wrongdoer for his quasi criminal action and as an example to others for the same reason that fines are imposed in strictly criminal cases. Piper v. Duncan, Tex.Civ.App., 131 S.W.2d 397, wr. ref. To some extent the distinction is recognized in Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520 where the court said:

“Assuming what may well be the case, that there could be no recovery of exemplary damages against one in Ritter’s position (none were awarded), it yet does not follow that Ritter may not be liable for compensatory damages for the gross negligence of the driver. Exemplary damages for gross negligence are awarded by way of civil punishment of — as distinguished from compensation by — a party who does harm with a callous state of mind. But the matter of charging a principal with compensatory damages for the gross negligence of an agent is simply one of how far the ancient rule of respondeat superior is to apply. The law is correctly stated in Lusk v. Onstott, Tex.Civ.App., 178 S.W.2d 549, 553.”

In that connection the respondents particularly emphasize our decision in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, a guest statute case, and the result reached therein in holding that Lochausen was guilty of gross negligence. Despite some of the circumstances set out in the dissent in that case which would tend to show ordinary negligence, in evaluating that decision, we are necessarily bound by the reviewal of the evidence as set forth in the court’s opinion, namely, that the defendant immediately outside the city limits of the City of El Paso was driving in heavy traffic at nighttime at a speed of 70 to 75 miles per hour following a road that he knew to be “a crooked, winding highway between the hills and the river there,” in attempting to pass a large van-type trailer on a rather sharp curve of from 30 to 45 degrees and in so doing pulled in front of oncoming traffic and thus was forced to cut sharply to the right so closely in front of the truck that the truck driver was compelled to slow his speed; ran into the guard rail at the right-hand side of the highway, then entirely back across over the highway, climbed an embankment and turned completely over, a total distance of some 400 feet or more after having passed the truck. The court was of the opinion that under that statement of facts the jury was justified in finding that the defendant was guilty of gross negligence or as may be interpolated in the words of the guest statute of heedlessness and reckless disregard of the rights of others.

As pointed out above the precipitator, in which the explosion occurred, was installed three years before. Others of a similar design with the same type of valves and with insulators affixed in the same manner had been in use for some 15 years. All had been installed by an independent contractor. So far as the evidence discloses no complaints had been made of the operation of any other precipitators than the one herein involved. During all these years while the precipitators were being cleaned weekly there had not been any explosion. The practice of steaming and resteaming had been a sufficient safeguard. As indicated the steam was introduced for the purpose of purging both the precipitators and the ears of gas and served to dampen the carbon deposits to prevent smoldering. The electric current was always cut off prior to the beginning of the cleaning operations. The duty of closing the valves and steaming the precipitators was assigned to and carried out by employees in the by-products department. The motor inspectors had the right to call for a resteaming if they smelled the odor of gas and frequently did so. Signs were posted to prevent smoking in the area. Safety meetings of employees were held regularly. In the light of 15 years’ experience there would seem to be no reason to suspect that, if the precipitator had been resteamed after the east ear was cleaned in the morning and the carbon deposits dampened shortly before work commenced on the west ear in the afternoon when these two motor inspectors smelled the odor of gas, the explosion would have occurred.

Viewing the evidence most favorably to the respondents any negligence shown to have been committed by the managerial or supervisory employees of Armco appeai-s to be passive or negative rather than positive or affirmative. The evidence fails to meet the requirement that there be an entire want of care so as to raise the belief that the acts complained of were the result of a conscious indifference to the rights or welfare of others. There does not appear to be any indication of wilfulness, wantonness or malice. We therefore hold that there is no evidence to support the findings of the jury that Armco was guilty of gross negligence.

The judgments of both courts are here reversed and judgment rendered that the respondents take nothing.

      . See Art. 16, § 26, Constitution of the State of Texas Voiv 'i Ann.St.; Art. 4673, Vernon’s Ann.Oiv.Stat.; Art. 8306, § 5, Workmen’s Compensation Act.

      . See also Magnolia Petroleum Co. v. Booth, 105 S.W.20 356, Tex.Civ.App. (1937), wr. ref.; Nichols v. Texas Electric Service Co., 206 S.W.2d 860, Tex.Civ.App. (1947), wr. ref. n. r. e.; Aber-crombie v. Scott, 267 S.W.2d 206 (1954), Tex.Civ.App., wr. ref. n. r. e.; Blair et al. v. Champion Paper Co., Tex.Civ. App., 147 S.W.2d 894, wr. ref.

      . Art. 6701b, § 1. “No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Morris ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 36679.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    J. M. Deavenport, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while license suspended; the punishment, a fine of $125.00 and one day in jail. No statement of facts accompanies the record on appeal. However, the transcript contains a motion to quash the complaint on the grounds it did “not sufficiently apprize this defendant under which statute and subsection thereof this defendant stands charged.” The complaint and the information merely charged that appellant drove a motor vehicle upon the public highway when his operator’s license was suspended. This form of complaint and information has heretofore been approved in Deramee v. State, Tex.Cr.App., 372 S.W.2d 701. Such case is hereby overruled insofar as it holds the form of the complaint and information was not subject to the exception. We further observe that we have in Crawford v. State, Tex.Cr.App., 341 S.W.2d 454; Gregg v. State, Tex.Cr.App., 339 S.W.2d 539; Geyer v. State, 162 Tex.Cr.R. 531, 287 S.W.2d 948; Rushing v. State, 161 Tex.Cr.R. 334, 277 S.W.2d 104; and Hines v. State, 157 Tex.Cr.R. 205, 248 S.W.2d 156, held the above form of the information to be proper in a prosecution under Article 6687b, Sec. 34 Vernon’s Ann. Civ.St., but in none of them was there an exception or a motion to quash raising the grounds asserted in Deramee and the case at bar. This form of complaint in a prosecution under Article 6687b, Sec. 34, V.A.C.S. is also set forth in the 1958 pocket part in Willson’s Criminal Forms, 6th Edition as Section 1119, p. 32.

Upon reexamination of The Motor Vehicle Law (Article 6687b V.A.C.S.) and the Texas Motor Vehicle Safety Responsibility Act (Article 6701h V.A.C.S.) which is supplemental thereto, we have concluded that a complaint and information charging the offense of driving while license suspended is subject to exception or motion to quash on the ground that it fails to recite under which Article the license was suspended.

We overrule appellant’s contention that both Articles are unconstitutional because they both charge the same offense but provide different punishments. We hold that each is a separate offense (the difference being the grounds upon which the license was canceled or suspended).

The judgment is reversed and the prosecution under this complaint and information is dismissed.


author: McDonald, judge.

text:
    Jerry S. O’BRIEN, Appellant, v. The STATE of Texas, Appellee.
    No. 36594.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Rehearing Denied April 15, 1964.

      Bernard A. Golding, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The appellant was convicted of the offense of Conversion from an Estate, and his penalty was assessed at ten years’ confinement in the State Penitentiary.

Appellant was jointly indicted as a principal with Clem , McClelland, the former Probate Judge of Harris County. After, McClelland had moved the Court to sever, to place O’Brien on trial first, and for a change of venue, the severance was granted arid the appellant was tried alone.,

Gordon Robert von Stroh, a non-resident of Texas, while in police custody committed suicide. After the death of von Stroh, Captain Cecil Priest, of the Houston Police Department, had a telephone conversation with McClelland, the Probate Judge, regarding the property of the deceased. Mc-Clelland informed Captain Priest that 'he would send the appellant to take charge of the deceased’s property and told him it. would be unnecessary for an attorney to be employed by the deceased’s family.

Mr. Russell Dahl, a brother-in-law of von Stroh, came to Houston from Oregon and . first talked with Captain Priest and, thereafter, went to the courthouse to see Judge McClelland. Dahl had a conversation with Judge McClelland in his office. Following that conversation, Dahl met with the appellant. He did not recall whether he or the Judge first contacted the appellant, but their meeting was a result of the conversation with McClelland. Dahl met with the appellant’,on at least two occasions before he left Houston, and appellant was informed that Dahl had paid the funeral expenses of the deceased and that he had a claim against the estate for the same.

. After returning to Oregon, Mr. Dahl corresponded and had telephone conversations with the appellant concerning the von Stroh estate. In one of the letters, dated October 19, 1959, from appellant to Dahl, appellant advised “I cannot send you.nor anyone any of Gordon’s belongings without the Court’s okeh, and my suggestion is that we sit steady in the boat and wait about a year, at which time the accounting will be due in the court; and if I have been successful in getting enough money together, I will ask that your claim for funeral expenses and other monies you have been out are reimbursed to you”. In a subsequent letter, dated October 25, 1960, the appellant informed Dahl that “According to law when this estate is closed, I will be forced to turn over said estate to the executor according to letters testamentary”. The quoted sentence had reference to the fact that letters testamentary had been issued in California in the estate of Gordon Robert von Stroh.

Dahl’s claim for funeral expenses was not paid by the appellant as administrator of the estate, nor anyone else.

The probate records of the estate, introduced into evidence, revealed that on the 23rd day of March, 1960, the appellant made application to the Probate Court, and in the application it was recited that an insurance policy in the amount of $3,500.00 had been collected, and that the funds on hand in the estate were $3,618.47. The appellant then moved the Court to pay temporary administrator’s fee of $2,000.00 and an attorney’s fee of $500.00. The Court’s order, pursuant to the application, authorized the' payment of $2,000.00 as temporary administrator’s fee and $500.00 as attorney’s fee out of the funds of the estate.

Records from the bank account of the estate in the Citizens State Bank reflected that on March 24, 1960, two checks, one in the amount of $2,000.00 and one in the amount of $500.00, were drawn on the account by the appellant. The $2,000.00 check payable to appellant bore the notation, “Temp. adm. fees per court order #67899”. The check for $500.00 payable to appellant bore the notation, “Attorney’s fees per court order #67899”. The balance of the account remaining after these withdrawals was $1,118.47. Subsequent withdrawals to pay claims of the estate reduced the principal on deposit to $283.65.

The records of the same bank reflect that the appellant had a personal account there and that the check for $2,000.00, drawn as a temporary administrator’s fee, was deposited into that account.

The appellant, testifying in his own behalf, said he was not a lawyer and not licensed to practice law. He had been acquainted with Judge McClelland since Mc-Clelland graduated from the University of Texas in about 1947 or 1948. Judge Mc-Clelland had suggested to him that he become the temporary administrator in the von Stroh estate. He did not draft the order appointing him temporary administrator. It was first seen by him in Judge McClelland’s office at the courthouse.

Appellant denied that he had ever shared or given any part of the fees of any estate to Judge McClelland. Appellant said that he had not had any business transactions with McClelland. He was then confronted with the fact that a check had been drawn upon his account, made payable to Mc-Clelland in the amount of $500.00, on the day after he received $2,500.00 from the von Stroh estate. He then admitted the payment but his explanation was that Mc-Clelland had helped him.with tax matters concerned with the drilling of an oil well, and that the’$500.00 payment was made for the services rendered by McClelland. The original copy of that check was exhibited to him by his counsel, and he said it bore the notation “Legal services oil & insurance matters”. Thereafter, on recross-examination it was shown that the check did not have this notation on it when it was negotiated at the bank.' The words “oil &” had been placed on the original check after it was negotiated at the bank.

In support of the appellant’s explanation, he introduced a statement which he said was presented to him by Judge McClelland for the services. (Defendant’s Exhibit No. 1). Under cross-examination, he denied that the statement was prepared recently in order to cover and explain the transaction of the payment of $500.00 to McCleL land. However, he admitted that the statement could have been made on his typewriter at his house. ■ • -

The appellant called witnesses who testified his reputation for truth and veracity and for being a law-abiding citizen in the community was good.

There were no objections to the Court’s charge. The appellant did not submit to the Court any requested instructions. No formal bills of exception have been brought forward with the record.

The evidence reveals that the total assets of the estate amounted to approximately $3,700.00. Approximately $900.00 in court costs and claims were paid. The appellant had knowledge of the claim for funeral expenses which had the highest legal priority, and it was not paid. The administrator’s fee of $2,000.00 and the attorney’s fee for $500.00 nearly depleted the estate. We observe that it was far from reasonable under the circumstances. O’Brien was not an attorney and not entitled to attorney fees. Judge McClelland was paid attorney’s fees. The jury did not choose to believe the explanation of the appellant. The evidence is amply sufficient to show the guilt of appellant as a principal, along with Clem McClelland, of the conversion from the estate of Gordon Robert von Stroh.

During the course of the trial, the custodian of the probate records of Harris County, Texas, identified applications and orders of the probate court in twenty-eight other estates in which appellant was the legal representative of the estate. These records showed that in each case the appellant was awarded attorney’s fees by the Probate Judge. Representative of such cases was that of Ben Ernest Waite, deceased. The records revealed that the total assets of that estate amounted to $353.06. There were disbursements from the estate by the appellant, as a temporary administrator, of $10.00 for a bond premium and $30.-00 for court costs. The remaining balance was $313.06. The appellant applied to the Court, and an order granting the same was entered for attorney’s fees in the amount of $156.53 and temporary administrator’s fees in the amount of $156.53. The two payments entirely depleted the assets of the estate. It was further shown that no attorney was actually appointed to represent the appellant as temporary administrator in that estate.

It is urged by appellant that the trial court erred in admitting this evidence of other offenses or transactions.

The record reflects that appellant’s defensive theory in the trial was lack of intent or knowledge that he was participating in any wrongful conduct. The charge of the court limiting the jury’s consideration of said extraneous offenses has been approved by this Court in Curry v. State, 169 Tex.Cr.R. 195, 333 S.W.2d 375.

The general rule is stated in 78 A.L.R.2d 1364, “Evidence of other similar offenses tends to characterize an act which might have been committed innocently or under mistake as having been knowingly committed with unlawful intent, since repetition lessens the probability of mistake and points out intention in doing the act charged.” State v. Jansen, 207 Minn. 250, 290 N.W. 557.

Texas follows the general rule and evidence can be offered as direct testimony, and in a case of circumstantial evidence where intent is an issue, but it more often is permitted to come in in the form of rebuttal evidence after the appellant has testified or offered a defense wherein he has stated that he did not intend to do the act. Parnell v. State, 166 Tex.Cr.R. 239, 312 S.W.2d 506; Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897.

Commission of other crimes or transactions may be shown only when the intent accompanying the act is equivocal, or where intent otherwise becomes an issue in the trial. See Sherman v. State, 124 Tex.Cr.R. 273, 62 S.W.2d 146, where the defensive theory was that appellant had no intention at the time he received the- check, to appropriate it to his own use, and he attempted to show his good faith in dealing with the property of the injured party. In affirming the conviction, this court stated, “When an extraneous crime, or other transaction, tends to show intent when intent is in issue, proof of same is admissible.” The court limited the testimony to the question of intent. The same result was reached in Vaughn v. State, 138 Tex.Cr.R. 62, 134 S.W.2d 290; Walker v. State, 139 Tex.Cr.R. 623, 141 S.W.2d 618; Parish v. State, 145 Tex.Cr.R. 117, 165 S.W.2d 748; Vernon v. State, Tex.Cr.App., 338 S.W.2d 728; Hankamer v. State, 142 Tex.Cr.R. 23, 150 S.W.2d 794; Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364.

In Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, relied upon by appellant, there was no charge limiting the testimony as to the extraneous offenses. Also, in that case, intent was not deemed to have been in issue.

In proving appellant’s guilt in the instant case, it was incumbent upon the state to prove intent in the transaction. Appellant’s testimony saying “I didn’t know I was violating the law”, together with his plea of not guilty raised the issue of intent in the transactions.

Thus, the admission of the twenty-eight other similar offenses or transactions, properly limited by the Court’s instruction to the jury, evidences system and was useable by the jury in establishing appellant’s intent in converting the estate in the case at bar.

Appellant’s further contention that intent was not proven is without merit. See Sims v. State, 169 Tex.Cr.R. 466, 334 S.W.2d 818, where evidence of other similar offenses or transactions was found to be sufficient in proving intent to defraud.

The evidence is sufficient to support the jury’s verdict and we find no reversible error.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte James McDONALD, alias James Hamilton.
    No. 36726.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    Harkness & Friedman, by Harry Friedman, Texarkana, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the petitioner to custody for extradition.

Governor Connally honored the requisition of the Governor of Arkansas for the petitioner’s arrest and return to that state to answer the charge of uttering a forged instrument.

The information, as well as the supporting papers, clearly shows that the petitioner is not substantially charged with “uttering a forged instrument.” The charge against the petitioner is violation of the Arkansas Hot Check Law, which is quite similar to the Texas Statute relating to the uttering of a worthless check.

The judgment remanding the petitioner is reversed and the petitioner is ordered discharged.


text:
    Barney Lee STRICKLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 36810.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for the felony offense of drunk driving; the punishment, 30 days in jail and a fine of $350.

The record contains no bills of exception or statement of facts.

The sentence orders the appellant’s confinement in jail for an indeterminate term of not less than 10 days nor more than 30 days, and a fine of $350.00 against him.

Art. 775 C.C.P., which provides for an indeterminate sentence, does not apply to jail terms. It applies only where the punishment is confinement in the penitentiary for more than the minimum term.

The sentence is reformed so as to provide that the defendant be imprisoned in jail for 30 days and be fined $350.00.

As reformed, the judgment is affirmed.


author: DICE, .Commissioner.

text:
    Billy Ray HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36785.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, .Commissioner.

The offense is robbery; the punishment, thirty years.

The state’s evidence shows that the injured party, James Thurmond Hodges, was employed as night attendant at a Fina service station on Highway 77 in Carroll-ton, Dallas County, Texas. Hodges testified that on the night in question, while he was on duty, two men drove into the station in an automobile and then left. Some thirty minutes later the men returned to the station and, after purchasing some oil, again departed. On the second trip, appellant was recognized by the witness as the driver of the automobile. Later, appellant and his companion returned to the station, at which time appellant asked the witness for some “cigarette change” and handed him a five dollar bill. When the witness went into the station and opened the cash register to change the bill, appellant stuck his hand in his shirt and told the witness he “didn’t only want cigarette change, he wanted all of the money.” With his hand still inside his shirt appellant then proceeded to order the injured party and another man by the name of Gordon into a back room. While in the room the injured party, could hear money being taken from the cash register and when he came to the door appellant said: “Don’t get behind me, or you will get hurt.” .Appellant then shut the door to the back room, went outside, and drove off with his companion in the automobile. The injured party testified that on such occasion he was in fear of his life or bodily injury if he did not comply with appellant’s command and that between $95 and $100 was taken from the cash register, without his consent. He further testified that on the night in question the appellant and his companion were intoxicated.

The witness Joe Gordon, called by the state, testified that he was present at the station on the night in question and corroborated the testimony of the injured party as to the details of the robbery.

The state’s proof further shows that appellant was- arrested about a month after the robbery and, after being duly warned, made and signed a written confession in which he admitted having gone to the station on the night in question, with his companion, and committing the robbery.

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

The record presents no formal bills of exception and there are no objections to the court’s charge.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction. This contention we overrule.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge

text:
    Earl MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.
    No. 36618.
    Court of Criminal Appeals of Texas.
    April 1, 1964.

      Sentell & Sentell, by Marvin F. Sentell, Snyder, for appellant.
    George R. Killam, Jr., County Atty., Snyder, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for willfully neglecting and refusing to provide for the support of his child under eighteen years of age; the punishment, eighteen months in jail.

The offense was alleged to have been committed on or about August 24, 1962. The information was filed August 25, 1962.

The statement of facts is in narrative form. There are no formal bills of exception.

Rumell Montgomery testified that she and the appellant were married in 1954; that one child, Vance Lloyd Montgomery, was born of their marriage in 1955; and that they were divorced in December, 1960. The child was awarded to the custody of the mother, and the father was ordered to pay child support, but the record does not disclose the amount he was ordered to pay. She further testified that appellant, age 55, was a good welder and blacksmith, that within her knowledge he was in good health and capable of earning $100 per week and had worked in at least two blacksmith shops; that the only money she received for child support from appellant was paid through the office of the district clerk and that money contributions from the appellant were necessary for the support and maintenance of the child. She also testified that she had been employed in a drug store for about three years and her take home pay was approximately $36 per week, and that she had no other income.

The records of the district clerk reveal that from August, 1960, to May 9, 1962, the appellant paid a total of $228 for child support. According to said records no payments were made after May 9, 1962, to August 24, 1962.

Judge Sterling Williams, District Judge, testified that he granted the divorce to Rumell and Earl Montgomery, and thereafter had several hearings on the nonpayment of child support by the appellant. At one of the hearings the appellant told Judge Williams “I will not pay child support,” and that he would go to jail first, for which he was held in contempt of court and placed in jail on December 19, 1961. On January 3, 1962, appellant was released from jail with the understanding that he would commence child support payments.

The appellant did not testify but offered two witnesses who testified that Vance Montgomery currently was doing fairly well in school.

Although Mrs. Montgomery testified that the appellant was a good welder and was in good health as far as she knew, and capable of making $100 per week, and had worked in two blacksmith shops, the record is barren of any evidence showing when he worked in the shops, the length of time employed, or of any money he received from work in the shops.

The evidence fails to show any period of time that the appellant was ever employed, that he had received any money, or that he had any income or assets, other than the money he contributed by payments to the district clerk. There is no showing that the money he paid was not commensurate with his ability to pay, or that after such payments he had any ability to pay; and there is no affirmative evidence of his physical condition during the period here involved.

Notwithstanding the duty and moral obligation of a father to support his minor child, the conviction for the criminal offense herein cannot stand, unless the evidence is sufficient to show beyond a reasonable doubt that the failure to support was wilful. Cardona v. State, 160 Tex.Cr.R. 541, 273 S.W.2d 73; Marshall v. State, 166 Tex.Cr.R. 601, 317 S.W.2d 209.

Finding the evidence insufficient to support the conviction, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.

WOODLEY, Presiding Judge

(dissenting).

Vance Lloyd Montgomery, the child named in the complaint and information, was eight years of age. The mother testified that in December 1960 she was awarded full custody of the child and Earl Montgomery was ordered to pay child support. She testified that the defendant was a good welder and blacksmith and was in good health as far as she knew, and was capable of making $100.00 per week; that all of the money she received for child support came through the office of the District Clerk of Scurry County, Texas. She testified that the defendant had worked for Merritt’s Blacksmith Shop and C. T. Webb’s Blacksmith Shop and possibly others. She testified that there had been several hearings before the District Judge in regard to the nonpayment of child support by the defendant.

District Judge Sterling Williams was called as a witness for the state and testified that he granted a divorce and awarded custody of the child to the mother and ordered the defendant (the appellant herein) to pay child support; that he had several hearings in regard to his nonsupport; that at a hearing on December 19, 1961, the appellant told him: “I will not pay child support” and said “he would go to jail first”; that he held appellant in contempt and ordered him to jail; that he was released from jail on January 3, 1962, without having purged himself by making child support payments of $10 per week, with the understanding that he was to commence child support payments in three weeks.

On cross-examination, the appellant asked Judge Williams: “Are you testifying here as a judge or a witness?” Judge Williams having answered that he was testifying as a witness, the appellant then asked: “Are you as big a liar here as you are in your office?” The question was not answered and there was no further cross-examination after the bailiff separated them and the trial judge instructed the jury to disregard the disturbance.

The appellant, who chose to represent himself but not to testify under oath in his own behalf and submit himself to cross-examination, told the jury by way of argument that his reason for not paying child support was because “he was always coming up to the District Court for hearings and he was losing jobs as a result of this.”

The undisputed evidence shows that the appellant contributed nothing to the support of his 8 year old son for three and a half months before the complaint was filed. The reason he gave would not excuse his failure to contribute anything for the support of his son for three and a half months. He stated in December that he would not pay child support — would go to jail first. He went to jail and for a time thereafter made contributions for the child’s support.

Appellant made no complaint as to the amount he was ordered to pay but said: “I will not pay child support.” He made no claim before the jury that he was not financially able to make any contribution to his child’s support. Even in cross-examining the child’s mother, the only question he asked which might even suggest that he was not able related to his being in the hospital “in the fall of 1962,” which was after the complaint had been filed, and she answered that she did not know.

The evidence, viewed in the light most favorable to the state, is sufficient to sustain the jury’s finding that the appellant’s failure to support his son was wilful and the judgment should be affirmed.


text:
    Gladys JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 36715.
    Court of Criminal Appeals of Texas.
    April 1, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The indictment alleged that the appellant took money from the person and possession of D. M. Hause without his knowledge and without his consent, and with the intent to deprive him of its value and to appropriate it to her use and benefit.

The indictment further alleged a prior conviction in the State of California for Grand Theft, and a conviction prior to the commission of that offense in the State of Oklahoma for Grand Larceny.

The prior convictions were proved as alleged.

The state relied upon circumstantial evidence to show appellant’s guilt of theft of money from the person and possession of D. M. Hause.

Hause testified that onv December 13, 1962, the appellant came to his auto parts place of business around 3 P.M.,- while he was working on a generator; she grabbed C. V. Wells, who later became a partner in the business, and propositioned him for sexual intercourse. She had her hands all over him. He pushed her away. She then said she had to urinate and was shown an outside rest room. On the way she fell, or claimed to have fallen, and Hause, thinking she was drunk, tried to get her up. She raised up her dress and grabbed him.

Before he could drag her out she turned around and rubbed “her rear end” on him. She then said she had to use the telephone. He did not see her again until she was arrested on March 6, 1963.

Some five minutes after the appellant left, Hause reached for his handkerchief and discovered that the $150 or more he had in his billfold was gone, but the billfold was in his pocket and the checks were still in it.

C. V. Wells gave similar testimony to that of Hause. He testified that he had no money in his billfold and lost none.

The theft of Hause’s money was promptly reported to the police.

The state was permitted to prove that the appellant, on *March 6, 1963, went to an automobile service shop or Transmission Shop in Austin during the noon hour and, after announcing that she wanted to use the bathroom, grabbed Mr. Grady, the proprietor, and propositioned him and he “pushed her back because she was drunk.” She grabbed' him again and then walked out. All of this time Mr. Grady was talking on the telephone. He discovered some 15 minutes later that the $125 he had in his billfold was gone.

A truck driver for Travis Materials testified that the appellant went into the Transmission Shop and some 5 or 10 minutes later she came running by his truck, jumped in a black Ford car parked about a block and a half from the shop and “took off. She was throwing gravel and the car was spinning and digging out when she left.”

Later the same day the appellant was apprehended near Taylor, Texas, while driving such a car.

The state was also permitted to introduce evidence to the effect that the appellant, on or about December 31, 1962, went to the place of business of an Orthopedic Brace Company where the proprietor, Mr. Hess, was at work at his bench, put her hand on him like she was trying to keep from falling and acting “as if she was trying to solicit a street job,” and as though she was drugged or doped. She then left suddenly and the brace maker soon found that his billfold, in’which he had $20 or more, was gone. The billfold was later recovered, its contents other than the money was intact.

Appellant was identified by the witnesses as the person who came to each of the shops, propositioned the owner (each of whom was married and living with his wife), put her hand upon them, and left suddenly, her departure being soon followed by the discovery that the men’s money-had likewise departed.

The evidence regarding the conduct of the appellant and the loss of money from the billfold of Mr. Hess, the brace’ maker, and from the owner of the Transmission Shop was admitted over the objection that it was “irrelevant and immaterial, highly prejudicial. It is at a time different and subsequent to the date alleged in the indictment of December- the 13th.”

The evidence was offered and was admitted only for the purpose of showing identity, intent, motive, malice or common plan or scheme. It was so limited in the court’s charge and the jury was instructed that such evidence could not be considered^ for any purpose unless they believed beyond a reasonable doubt that the defendant committed such other offenses. f

The intent of the appellant in making physical contact with Mr. Hause was material and was uncertain. Proof that the money was taken as well as the intent of the appellant rested upon the circumstances.

The two collateral offenses show more than a similarity in results. They show a common plan and systematic course of action. The peculiar way in which the other business men lost their money upon the same course of conduct by the appellant was a circumstance that was available to the state to prove the appellant’s guilt of theft from the person of Hause. The evidence showed system, not merely systematic crime, and the court did not err in admitting it for the limited purposes stated.

“Where the existence of a plan or system of criminal action is in issue, evidence of other or similar offenses committed by the accused, both before and after the commission of the offense with which he is charged, is admissible to show that the offense charged was part of a common plan, scheme, or system. But to render such evidence admissible, there must be more than a certain degree of similarity in results between the crime with which he is charged and the other crimes committed by him. There must indeed be such a concurrence of common features between the several crimes as will show logically that all of them might well have resulted from a common plan or systematic course of action.” 23 Tex.Jur.2d, 310, Sec. 201.

The evidence is sufficient to sustain the conviction and no error appears.

The judgment is affirmed.


author: McDonald, judge. WOODLEY, Presiding Judge

text:
    Fay Leon BLOUNT, Appellant, v. The STATE of Texas, Appellee.
    No. 36357.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1964.
    Rehearing Denied April 15, 1964.
    Robert C. Benavides, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Edwin L. Davis, Don Nicholson and Stephen W. Guit-tard, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is assault with intent to murder with malice; the punishment, confine- • ment in the state penitentiary for ten years.

The state’s evidence reflects that in the early morning hours of May 22, 1962, appellant’s car made an improper turn from the wrong lane and struck a car driven by Ted M. Akin. Both parties got out to inspect the damage. Appellant became hostile and argumentative and called Akin a “young punk” and told him he couldn’t get away with it. Akin suggested calling the police, but appellant became highly excited, cursed and shoved Akin against appellant’s car. Receiving no help from appellant’s female companion, Mrs. Tidwell, Akin hailed a passing motorist, Troy Cunningham. Cunningham parked his car near the scene and came over to help Akin. He succeeded in separating the two, but the appellant continued to curse Akin and accused him of trying to rob him. Cunningham also suggested calling the police, and in an effort to quieten appellant, told him to get in his car. Cunningham then hailed a cab driver and requested him to phone the police. Appellant then got in his car and his woman companion slid over to the driver’s seat and proceeded to back up toward Cunningham and Akin, who were standing behind appellant’s car. The woman then drove the car away. After instructing Akin to take down appellant’s license number, Cunningham got in his car and followed appellant’s car, which he stopped about 300 feet away. He then went up to the woman driver and advised her that she was violating the law by leaving the scene of an accident, and that since the police had been called it would be better for her to return to the scene. He also said that if she did not return it would be necessary to arrest her.

Appellant according to the testimony of the witness, Cunningham, got out of the car and came around to Cunningham, shoved him against the car and began cursing him. Appellant had his right hand in his pocket and told Cunningham to “Come on, touch me, I am going to kill you”. Appellant then grabbed Cunningham’s pull-over shirt and pulled it over Cunningham’s head and began hitting him. Akin stated that he saw appellant strike Cunningham in the chest, the location of the wounds as developed later in the testimony. Cunningham pulled appellant to the ground and hit him in the mouth to quieten him. Both witnesses, Akin and Cunningham, testified that they heard appellant say to Cunningham at that time, “Boy, you are dead”, and “Don’t you feel anything?” At this juncture Cunningham looked down and saw cuts in his shirt and blood flowing from the cuts. Akin testified that Cunningham appeared to be “bleeding all over”. The injured party stomped on appellant’s hand that had the knife in it, and made him turn loose of the knife. Cunningham testified that he told Akin “that he had a knife in his hand and had cut me”. Akin then “lifted the fellow’s hand up, and kicked the knife out from underneath his hand.” The injured party then held appellant until the police came out very shortly. The police radioed for an ambulance and Cunningham was taken to Baylor Hospital. Cunningham described his wounds as being a cut “about two or two and a half inches in that one”. He indicated with his hands, right in there, (the record not showing the location), and he related that the next day when he and his wife were noticing under the bandage, “we saw two other cuts in there, clean cuts”. The witness further related, in response to a question: “All right, were you treated at the hospital?”, “Yes, sir, he sewed me up there.” Question: “Did you see the stitches that he took in you?” Answer: “Yes, sir.” Question: “How many stitches did he take ?” Answer: “He took ten stitches.” Question: “All right, then you went home, is that right?” Answer: “Yes, sir.” Question: “I will ask you if subsequently, after this time you later had to go back to the hospital for corrective surgery?” Answer: “Yes, sir, I did.” Question: “How long were you in the hospital that time?” Answer: “Thirteen days.” The knife was then identified and introduced into evidence. Officer Hollingsworth testified that the knife was approximately 6 inches long. The witness, Akin, later testified that the wound sustained by Cunningham was on the left side, several inches below the breast, two to two and a half or three inches long. He also testified that Cunningham was bleeding profusely. Mrs. Cunningham testified that the wound in her husband’s left side was located “approximately three and a half or four inches below the left nipple; that the scar remains there and that the scar is about two or two and a half inches in length. The witness was asked: “Was that on the front part of the chest in the vicinity of the heárt”, and she responded:' “Yes.”

While the prosecutor suggested the words “stab” or “stabbing” by some of the questions asked, the injured party, Cunningham, always replied “cuts” or “cuts with a knife.” Appellant’s testimony does not show him to have stabbed the injured party. He used the word “cut” in his testimony.

Appellant cites us many cases in support of his contention that the evidence is insufficient to sustain the verdict.

The State contends that the evidence is sufficient, and it supports its position by citing many cases.

We have striven hard to leave the jury’s verdict undisturbed, and we have closely and carefully examined the cases supporting the State’s position and applied these cases to the case at bar. We do not believe that the evidence is sufficient to support the verdict and sustain the judgment, but we shall distinguish some of the outstanding cases cited, from this cause, prior to disposing of this case.

In Jennings v. State, 367 S.W.2d 670 the question before this court was the sufficiency of the evidence to support the conviction of appellant as a principal. Appellant grabbed the 'officer’s left wrist and right arm and got him off balance while appellant’s son cut the officer. The officér was severely cut and was carried to the hospital in an ambulance. His injuries zuere established by medical testimony.

In Caballero v. State, Tex.Cr.App., 354 S.W.2d 940, the injured party testified he was “stabbed” in the back and side around his spleen; that he was taken to the hospital and an anesthetic administered, and he remained in the hospital 8 days.

Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 1016 is cited in Caballero, supra. Franklin’s weapon was a sotmd bois d’arc stick three or four feet long, and about one and a half inches in diameter; prosecutor was struck on the back of the head with the stick, was stunned and dazed and then struck several additional blows; he was confined to his bed for several days.

Jackson v. State, 48 Tex.Cr.R. 648, 90 S.W. 34, also cited in Caballero, supra, the weapon .used was a stick 2 feet long, 2 inches in diameter, but there was a conspiracy to murder prosecutor shown, so appellant could marry prosecutor’s wife; also, a choking was shown.

Basquez v. State, 114 Tex.Cr.R. 602, 26 S.W.2d 206 cites with approval both Franklin’s case and Jackson’s case. In Basquez, he inflicted a fractured skull on his victim, as well as several deep cuts.

In Daugherty v. State, Tex.Cr.App., 216 S.W.2d 222, the assailant knocked the injured party down, obtained an empty quart bottle, broke the bottom out of it, and with the jagged part thereof struck, beat, and cut the injured party on the head and neck inflicting a serious wound on the neck such that it might have caused the man’s death. In the case at bar, both participants were men, the injured party being much larger and younger than the appellant also the issue of self-defense was raised by the evidence and the jury was charged as to this defense.

Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219, a joint trial under joint indictment charging two brothers with “assault to murder.” Carlos Flores shot Cantu in the arm with a pistol, after the altercation with his brother, Alfredo Flores, was over. Carlos .received 2 years. Alfredo Flores "cut him with a knife which, in the manner used, was a deadly zveapon by zvhich serious bodily injury was inflicted upon him (Cantu).” He received 4 years. The foregoing excerpt is from the exact wording of the opinion by Judge Davidson. The recitation of the facts as stated by him make the evidence sufficient.

Judge Davidson cites Henry v. State, 157 Tex.Cr.R. 88, 246 S.W.2d 891, Hunter v. State, 161 Tex.Cr.R. 325, 275 S.W.2d 803 and Windham v. State, 162 Tex.Cr.R. 620, 288 S.W.2d 90, in his opinion in Flores, supra. In Henry’s case the stab wound was 3Y2 inches deep, he was hospitalized for 3 months and partially paralyzed. In the Hunter case, the assault was made upon a 78 year old man who was feeble and in bad health and the assailant was a man 38 years of age, strong and in robust health. Also there was testimony that only the intervention of a third party prevented the assailant from killing the old man. The Hunter case further contained testimony that the wounds in question were caused by some blunt instrument other than fists.

In Smith v. State, 160 Tex.Cr.R. 227, 268 S.W.2d 144, 145, relied upon in Hunter, a doctor testified that he took some X-ray pictures of the child; there were three separate fractures of the skull involving the right side and the base of the skull. One skull fracture began at the midline and extended downward; the second skull fracture was what is called an “eggshell fracture, just like a cracked egg, and gives a little radiating starlike fracture, and then radiating out therefrom”. Then there were three fractures: one on top of the skull, ■one in the base, and one in the back”. '“There was a fracture involving the upper portion of the tibial bone, which is the large bone of the foreleg, of the right leg near the knee joint.” The appellant’s confession also reflected that he hit the child •several times with his fist on her body and lier head.

In Windham’s case the injured party’s throat was cut with a knife; he underwent surgery and was in the hospital for 5 days; a doctor testified that “ * * * he was bleeding and had a wound on the back of his neck a half inch in length; that the wound went through a portion of the thyroid gland, cut one side of the trachea, •which is the windpipe, and went on behind; ****** kUf. wag gycjj a Wound as •could definitely be calculated to produce serious bodily injury or death.”

Bradshaw v. State, 167 Tex.Cr.R. 469, 220 S.W.2d 833, medical testimony reflects a wound 'in the injured party’s back 3Yz inches in length and 5 inches in depth. .The doctor further expressed the opinion that Jackson (the injured party) would have bled to death had he not received attention such as he received and that the injured party was “going into a light shock.”

Davis v. State, 165 Tex.Cr.R. 294, 306 S.W.2d 353; the- opinion is meager as to the facts, as a Bill of Exception was used to relate them; however, complaint is not made as to the insufficiency of the facts, but about the charge of the Court.

Lott v. State, 164 Tex.Cr.R. 395, 299 S.W.2d 145; we do not regard as being in point here for the reason that this defendant was convicted of the lesser offense of aggravated assault.

Marr v. State, 160 Tex.Cr.R. 216, 268 S.W.2d 150; while there was no description given of the knife and no threats were made, the injured party was admitted to the hospital and remained for 23 days; X-rays revealed blood in his chest, — 2 pints of blood were drawn out — he was given one or two-pint blood transfusions; the presence of blood in the chest caused the heart to be displaced. Judge Morrison said: “Under the foregoing testimony the injury inflicted appears to us to have been a serious one, an injury such as would give rise to apprehension of danger to life, health or limb.”

Mosely v. State, 158 Tex.Cr.R. 623, 259 S.W.2d 225; the injured party was cut by her former husband who had threatened to kill her companion and to cut her throat. He cut her across the face. The wound, according to the opinion by Judge Morrison, presented no danger of death, and the weapon was a pocket knife with a short blade, an officer testified the knife would he calculated to cause death or serious bodily injury.

Hernandez v. State, Tex.Cr.App., 375 S.W.2d 289, had medical testimony adduced by Dr. Cigarroa to the effect that such an instrument as the letter opener shown him may have caused the wound, and that a penetrating wound with such type of weapon can he calculated to produce death.

From the foregoing discussion of the various cases relied upon by the State, it is apparent in all of them that the specific intent to kill was inferred when the instrument used in the commission of the assault is a deadly weapon. Since many of these cases deal with weapons not deadly, the intent to kill on the part of the accused must be ascertained from the surrounding facts and circumstances. In all of these numerous cases affirmed by this Court the surrounding facts and circumstances show either serious wounds or wounds calculated to produce serious bodily injury or death, or an instrument calculated to cause death or serious bodily injury.

A pocket knife is not per se a deadly weapon, and in order to constitute it such there must be evidence to show that it was so used. Fregia v. State, 79 Tex.Cr.R. 334, 185 S.W. 11. It was stated in Fregia, supra: “If weapon is not shown to be deadly, or wounds serious, it is not assault to murder, though defendant said he intended to kill; the desire to kill is not proof that weapon was deadly”. Citing: Cage v. State, Tex.Cr.App., 77 S.W. 806; Foster v. State, 39 Tex.Cr.R. 399, 46 S.W. 231; Sloan v. State, Tex.Cr.App., 76 S.W. 922. As succinctly stated in Hatton’s case, Hatton v. State, 31 Tex.Cr.R. 586, 21 S.W. 679; The means used may be looked to, to show intent. If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts. Hatton shot at Johnson with No. 8 bird shot, but he was too far off to kill him. We think this Court correctly held a shotgun to be a deadly weapon (as it would be in nearly every case that we could conceive of.) We think it important to make a distinction between “stab” and “cut”. “Stab” usually implies to thrust or to plunge. “Cut” usually implies to gash or to slash.

A pocket knife or a pen knife with a blade 2j4 inches long (as was the longer blade of the weapon in this case,) must be used in a deadly manner to constitute it a deadly weapon. The evidence in this case shows a hitting of the injured party by appellant. The injured party did not know that he had been cut until appellant told him. The State showed the length of one of the cuts, but it did not show the depth. The closest that the State came to making a case of assault with intent to murder was the testimony to the effect that the injured party went back for corrective surgery and remained in the hospital for 13 days. However, assuming the position most favorable to the State, that this corrective surgery was necessary on account of the wounds inflicted upon the injured party by appellant, we find nothing in the record to show or even slightly suggest the injuries, cut or cuts were of such a serious nattcre as to likely produce death or serious bodily injury. While it could very well be that the injury was more serious than at first thought and it could have been a deep cut, bleeding internally, making corrective surgery necessary; on the other hand it could have very well been that the stitches pulled loose or became infected. We think the testimony should have shown the character or seriousness of the wound. It occurs to us that the state might have shown by the testimony of the physician who dressed the wound, the depth thereof and whether it was a serious wound, as well as the kind and character of the knife used, or both. This same observation also applies to the state’s failure to properly show and develop the nature and type of corrective surgery performed. We cannot determine from the record the date that the corrective surgery was performed.

Appellant was shown to be 52 years old, weighed approximately 175 pounds and had just been released from the hospital where he had received treatment for a heart ailment, and he described the knife which he used as a “little old penknife”. The injured party, Cunningham, was 34 years old and weighed 210 pounds.

There remains thus only threats which the injured party attributed to appellant. He stated that after the altercation began appellant said, “Come on, touch me, I am going to kill you; just touch me, I am going to kill you, hit me, I am going to kill you.”

The general rule as to assault with intent to murder cases will be found in Fregia v. State, supra, Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744, and 29 Tex.Jur.2d, Sec. 109, p. 127: “So the fact that the accused threatened to kill the person assaulted or stated at the time that he intended to kill him does not warrant a conviction, if there is no showing that the weapon used was a deadly one, and there is no such description of the wounds as would justify the inference that such a weapon was used.” See also Hare v. State, 128 Tex.Cr.R. 203, 80 S.W.2d 963 and Jones v. State, 116 Tex.Cr.R. 30, 28 S.W.2d 146 and Barnes v. State, Tex.Cr.App., 356 S.W.2d 679.

Sadler v. State, Tex.Cr.App., 364 S.W.2d 234, was a murder case in which a physician testified that he did not find anything that could have caused the death except the wounds which he examined and which had been inflicted by blunt force. The facts of that case are stronger than those in the case at bar, especially in view of the fact that death did ensue.

Wood v. State, Tex.Cr.App., 374 S.W.2d 896, involves a father beating his 2 year old daughter. There was medical testimony that the child had a brain concussion, along with numerous other injuries, “that her condition was critical and could have caused death”. It is obvious that the facts are much stronger in Wood, than in the case at bar.

The facts herein do not, under the authorities above cited, and the rule taken from the early case of Franklin v. State, 37 Tex.Cr.R. 113, 38 S.W. 1016, recognized by this Court in its opinion on Motion for Rehearing in the case of Hernandez v. State, supra, and consistently followed since the opinion in Franklin’s case, supra, was rendered in 1897, support the conviction.

Accordingly, the judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting).

The rule referred to in the majority opinion is that if the weapon was not a deadly weapon “ * * * the jury may arrive at the intention of the party from the surrounding facts. If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder.” (Quote from Franklin v. State, 38 S.W. 1016, cited in Hernandez v. State, supra.)

No expert testimony was needed to establish the fact that the knife was an instrument with which it was possible for the appellant to kill Cunningham.

As I see it, the facts viewed in the light most favorable to the state sustain the jury’s finding that the appellant made the assault upon Cunningham, the peace maker, with the intent to kill.

When Cunningham arrived, the appellant, who had the odor of liquor on his breath, was cursing Akin, a Dallas lawyer, and was fighting him. He accused Akin of trying to rob him.

After Cunningham had stopped a cab and asked the driver to call the police and had told the appellant to get in his car and wait, and after he had overtaken the car as it was leaving the scene, and had walked up to the driver’s side and was talking to the driver, the appellant got out on the other side of the car, came around and attacked Cunningham.

The appellant admitted on cross-examination that he got out of the car and went around there to get him (Cunningham).

“Q. But still, you got out'of the car and went around there to get him, didn’t you ?
“A. Yes, sir, I sure did.

When he came around he started shoving ■Cunningham — shoved him up against the •car- — cursed him and with his hand in his jpocket said:

“Come on, touch me, I am going to kill you; just touch me, I am going to kill you, hit me, I am going to kill you.”
'“Q. As he did that, what, if anything, did he do next?
“A. Well, the next thing I know, he had my shirt over my head and really hitting at me.
'“Q. All right; what, if anything, did you do after he pulled your shirt over your head and hit you in the chest there?
■“A. Well, I was wrestling with him, got ahold of both hands, and finally got him down on the ground, and whenever I got to where I could see what I was doing, then I doubled up my fist and hit him in the mouth, and when I did that, he quit. It just took all of the fight out of him and he looked up at me, kind of grinned and says, ‘Boy, you are dead.’
'“Q. What, if anything, did you say ?
•“A. I said, What?’ And he said, ‘Man, don’t you feel it yet?’ Kind of grinning, laughing—
■“Q. And what did you do after he said that ?
-“A. I looked down then and then I saw the knife in his hand and looked over and saw the blood dripping out of my side, then felt .it running, down my side.
“Q.- All right.
“A. And I stomped bn his hand, then, the hand that had the knife in it, and made him turn loose of the knife.”

The knife which was used was introduced in evidence and is before its. It appears to be an ordinary pocket knife, both of its blades being sharp. •

The fact that the- appellant continued his assault with the knife until he was overpowered is a circumstance which the-jury could take into consideration in determining whether he intended to kill.


author: CHAPMAN, Justice.

text:
    T. B. BURROW et al., Appellants, v. James W. McMAHAN et al., Appellees.
    No. 7323.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1964.
    Rehearing Denied March 16, 1964.

      Crenshaw, Dupree & Milam, Lubbock, J. G. Souris, Vernon, Tom Gordon, Abilene, William P. Gibson, Dallas, for appellants.
    Cannon B. McMahan, Oklahoma City, Okl., Jenkens, Anson, Spradley & Gilchrist, Dallas, Morriss, Morriss, Boatwright & Lewis, San Antonio, for appellees.
   CHAPMAN, Justice.

The subject matter of this suit concerns the validity of a deed of trust foreclosure by sale on December 7, 1937, by a purported substitute trustee of a portion of an original indebtedness in the amount of $2,000 due the Federal Land Bank in Houston. The delinquent portion assigned by the named lending agency was a semi-annual interest and amortization installment in the amount of $38.34 reduced from $65 because of the legal reduction in interest rate, together with interest thereon from the maturity thereof.

The case was submitted to the trial court upon an agreed statement of facts in accordance with Rule 263 Vernon’s Ann.Tex. Rules. .

Suit was filed by James W. McMahan and others in trespass to try title against T. B„ Burrow and others to recover certain mineral interests which had been severed from the fee title after a deed of trust had been previously given securing the $2,000 indebtedness above stated. The trial court rendered judgment for James W. McMahan and others for all mineral interests sued for.

On July 22, 1922, Ed Andress et ux., the agreed common source of title, executed and delivered a deed of trust to M. H. Gossett, trustee, securing the payment of a note for $2,000 payable to the Federal Land Bank of Houston. By regular chain of title appellees are owners of mineral interests, described in the stipulation agreement, including the interest claimed by appellants by virtue of the foreclosure by the purported trustee, T. B. Burrow [if the trial court’s judgment was proper]. All conveyances of all such mineral interests to the appellees are prior in time to the purported substitute trustee’s deed of December 7, 1937.

The obligors upon the original indebtedness of $2,000 to the Federal Land Bank became delinquent on the installment above described and such installment was sold 'and transferred by the Land Bank to Dorothy Hofeus. On September 4, 1937, as. the holder of such delinquent installment interests, she executed a purported appointment of T. B. Burrow as substitute trustee. The Land Bank did not assign the entire note and lien to Mrs. Hofeus but only the described delinquent installment.

From the record made here no foreclosure or attempted foreclosure was ever had by the Land Bank, nor by any trustee acting for them; nor have they recognized the attempted foreclosure by Mr. Burrow, because no such action or recognition is included in the agreed statement of facts by which we are bound. White v. State, Tex.Civ.App., 329 S.W.2d 446 (N.R.E.) ; Cousins v. Cousins, Tex.Civ.App., 42 S.W.2d 1043 (writ refused) ; Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491. Our Supreme Court in the last cited case said:

“The courts are without power, in the absence of a provision in the agreed statement providing otherwise, to draw any inference, or find any facts, not embraced in the agreement, unless, as a matter of law, such other inferences are necessarily compelled; and the judgment of the court must only declare the law which necessarily arises from the facts agreed upon.”

We do not believe any inferences are necessarily compelled as a matter of law in this record.

In Hart v. McClusky, 118 S.W.2d 1077 (writ refused) this court had the same type federal land bank deed of trust involved where a Plainview loan association became the assignee of delinquent installments paid by them to the Federal Land Bank for the obligor. The Plainview loan association requested the Land Bank to request the substitute trustee, Mr. Williams, to foreclose their delinquent installments. Mr. Williams, substitute trustee appointed by the bank, by power of attorney appointed H. V. Tull as attorney in fact to execute foreclosure sale. The sale was made and the Plainview loan association, being the highest bidder, purchased the property and then conveyed it to McClusky. He brought a suit in trespass to try title against Hart et ux., who had executed the lien originally to the Land Bank.

The court instructed a verdict for Mc-Clusky. On appeal to this court Hart contended that since the Plainview loan association was the owner and holder of the delinquent installment, it was the only proper party to appoint a substitute trustee to affect the sale. Our court after quoting from the deed of trust as follows: “That an assignee holding any installment or installments of the note hereby secured shall have the same powers as are hereby conferred upon the Federal Land Bank of Houston to request the trustee named herein or his successors as herein provided for, to sell the property herein conveyed.”, then held:

“It will be observed from the quoted provision that an assignee of any installment or installments of the note, upon default in their payment, has the right to call upon the trustee named in the deed of trust or his successors ‘as herein provided for’ to make the sale. There is no provision under which an assignee of a portion only of the indebtedness is authorized to appoint a trustee or substitute trustee. He is confined to the trustee or substitute named in the deed of trust or appointed under its provisions by the Federal Land Bank. * * *
“Under the law, the power to appoint a trustee or a substitute trustee to make sale of one’s property, is not inherent in the creditor. Such authority is derived solely from the deed of trust and its provisions must be strictly followed. If the grantor had been willing to entrust such power of appointment to any assignee who may become the owner of any portion of the indebtedness secured by the deed of trust, it would have been so provided in the deed of trust; but since that power was restricted and confined to the Federal Land Bank, it cannot be enlarged by judicial fiat.” (All emphases herein are ours).

That pronouncement of law was approved by our Supreme Court in a “writ refused” disposition, thus holding that the assignee of a portion only of the indebtedness is confined to the trustee or substitute trustee named in the deed of trust or appointed under its provisions by the Federal Land Bank. Therefore, T. B. Burrow did not come within that holding such as to permit him to act as substitute trustee and his attempt to so act was wholly void and of no effect.

In Johnson v. Koenig, 353 S.W.2d 478 (N.R.E.) where appellants’ asserted title was based solely upon a deed executed by a substitute trustee, David M. Stiles, appointed by the holder of past due installments constituting only a portion of the indebtedness, just exactly as in the instant case, the Austin Court of Civil Appeals held:

“Under the rule announced in Hart v. McClusky, supra, the appointment of David M. Stiles was void and as a result any proceedings by the substitute trustee under the provisions of the deed of trust were void.”

Appellants pleaded Article 5523a Vernon’s Ann.Tex.Civ.St. in bar and urges it as such in this court, contending: “The substitute trustee deed in question recites that the substitute trustee was duly appointed, and that such appointment was on account of the death of M. H. Gossett, trustee, and the refusal to act of A. C. Williams, substitute trustee, and that it was made ‘thereupon and thereafter.’ ”

It is without question in the record that the attempted appointment of Mr. Burrow as a trustee was not by the trustee named in the deed of trust or successors, nor one appointed by the Land Bank under the provisions of the deed of trust. Therefore, under the record here made we believe the authorities have foreclosed appellants’ contention against them.

The Fort Worth Court of Civil Appeals has recently held that Article 5523a was not meant to apply to titles where one with no authority whatever executed a deed calling himself a trustee, but was for the purpose of establishing a period of limitation in which suits may be brought for the recovery of lands on “technical defects.” Campsey v. Jack County Oil & Gas Association, Tex.Civ.App., 328 S.W.2d 912 (N.R.E.). Since Mr. Burrow had absolute want of authority to execute the trustee’s ■deed it did not constitute a “technical de-feet” such as is barred by Article 5523a. Campsey v. Jack County Oil & Gas Association, supra.

Our Supreme Court has said: “A trustee has no power to sell the debtor’s property, except such as may be found in the deed of trust; and the powers therein conferred must be strictly followed.”, Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, and: “It cannot be laid down as a general proposition that whenever a conveyance is regular on its face it operates to pass title between the parties at the time of its execution.” Slaughter v. Qualls, supra.

In Smith v. Allbright, 279 S.W. 852, reversed on other grounds, the Austin Court of Civil Appeals held that even though legal presumptions exist in favor of judicial sales “ * * * it is well settled that no such presumption prevails as to trustee’s sales under powers granted by deeds of trust; the reason for the rule being that the exercise of such powers is a harsh remedy, and that it can only be exercised by strictly complying with the terms and conditions imposed upon the power of sale by the maker of the trust instrument.”

An owner of interests in real property is not bound to search the records to ascertain if subsequent void instruments affecting his title has been placed of record. Campsey v. Jack County Oil & Gas Association, supra.

We do not believe that Dall v. Lindsey, Tex.Civ.App., 237 S.W.2d 1006, relied on by appellants, is in point in our case. Our court in that case held an officer and stockholder of the mortgage company was not disqualified to act as trustee by virtue of being an officer and stockholder, one of the defects raised, and since part of the land was located in Lubbock County foreclosure could be had in that county under Article 3810 V.T.C.S. Thus, the defects raised in the trustee sale were strictly “technical defects,” and Article 5523a was applicable. These are entirely different situations to the instant case, where one who was not a trustee and was completely without authority to act as such called himself a trustee and attempted to act as one in the foreclosure.

Accordingly the judgment of the trial court is in all things affirmed.

      . The deed of trust provided for sale of the land in Plainview, Hale County, but Article 3810 provides the real estate may be sold in either county, where the land is situated in more than one county and notices are given in both or all of such counties.


author: PER CURIAM.

text:
    Hulon BROWN, Relator, v. Howard WALKER et al., Respondents.
    No. 6723.
    Court of Civil Appeals of Texas. Beaumont.
    March 25, 1964.
    Adams & Browne, Beaumont, for relator.
    David Walker, Lufkin, for respondents.
   PER CURIAM.

This is an original application for writ of mandamus. Hulon Brown, Relator herein, is currently the elected, qualified and acting" district attorney of the Second and One Hundred Forty-fifth Judicial Districts of Texas, comprised of the counties of Angelina, Cherokee and Nacogdoches. This court on March 24, 1964, granted Relator leave to file his petition for writ of mandamus, directing certain Democratic Party officials of Angelina County, Texas, to place his name as a candidate for the office of district attorney on the official ballot for the primary election to be held on May 2,. 1964, in said county. The Respondents are the Honorable Howard Walker, Chairman of the Democratic Executive Committee of Angelina County, ánd all other members of the Democratic Executive Committee of said county.

Relator prior to the deadline for having his name placed upon the official ballot of Angelina County mailed to Respondent Walker, by regular mail, his additionally assessed filing fee of $50.00. The date of this deadline was February 15, 1964. One-question presented to us for determination is whether Relator’s additional assessment,, addressed and 'deposited as regular mail, met the requirements of Art. 13.08 of our Election Code, V.A.T.S. as amended Acts-1963, 58th Leg., p. 1017, ch. 424, Sec. Si; requiring all such additional assessments to be mailed to the County Democratic Chairmen by registered or certified letter before the deadline provided for.

Most of the material facts are undisputed. On February 15, 1964, at approximately 11:30 a. m., Relator placed a long distance call from Jacksonville, Texas, to Respondent Walker for the purpose of advising Mr. Walker that Relator was about to deliver a money order of $50.00 which was his additionally assessed filing fee.. Mr. Walker advised Relator to “just mail it”, or words to that effect. He did not state that it should be certified or registered, nor did he advise Relator not to register or certify mail it.- He did advise him to be sure the envelope was postmarked prior to midnight of that day. On said day, Relator promptly mailed, as aforesaid, his additional assessment of $50.00 to Mr. Walker.

After timely notice, Relator and the Angelina County Democratic Executive Committee met at Lufkin, Angelina County, Texas, on Monday night, March 16, 1964. After hearing Relator and "Mr. Walker, the Committee retired in closed executive session and thereafter announced that Relator’s name would not be placed on the primary ballot as a candidate for district attorney. Hence, the application for leave to file petition for mandamus.

Prior to 1963, Art. 13.08, supra, of the Election Code as here pertinent read:

“ * * * In making the assessment upon any candidate the committee shall give due consideration to the importance, emolument, and term of office for which the nomination is to be made and shall, by resolution, direct the chairman to immediately mail to each person whose name has been requested to be placed on the official ballot a statement of the amount of such expenses so apportioned to him, with the request that he pay the same to the •county chairman on or before the Saturday before the fourth Monday in June thereafter. It shall be sufficient to meet the requirements of this law to mail by registered letter to the chairman before the deadline herein provided, as shown by the postmark on the letter, a money order, a certified check, or a good personal check. Acts 1951, 52nd Leg., p. 1097, ch. 492, art. 186.”

Thereafter several Courts of Civil Appeals decisions construed the above quoted portion of Art. 13.08 as not being mandatory in all circumstances wherein a candidate unintentionally failed to pay or deliver his additional assessment before the prescribed time or date or where a candidate failed to forward the same by certified or registered mail. These decisions, having no writ history, are McWaters v. Tucker, Tex.Civ.App., 249 S.W.2d 80; Lake v. Zavalla County Democratic Executive Committee, Tex.Civ.App., 355 S.W.2d 219; and Fisher v. Dallas County Democratic Executive Committee, Tex.Civ.App., 333 S.W.2d 604.

However, the 1963 amendment of Art. 13.08 contained these statements additional to those of the 52nd Leg. herein-before set out:

“ * * * and no person’s name shall be placed on the ballot unless he pays the assessment within the prescribed time * * * but it shall not be sufficient to make the payment by any other type of mail unless it is delivered before the deadline.”

The caption of the 1963 amendment to Art. 13.08 states that one of the purposes for the amendment was for “* * * revising and clarifying provisions relating to payments received by mail after the deadline * *

It appears to us that due to the confusion and uncertainty of the law as it existed prior to 1963, as evidenced by the decisions hereinbefore cited, our Legislature meant to, and did, clearly spell out the requirements' and procedures which a candidate must comply with in order to have his name placed upon an official primary election ballot. It is our opinion that the requirements stated by the 1963 amendment are mandatory and must be strictly complied with. Relator’s contentions to the contrary are without merit.

The other question presented to us is whether or not the additional money was “delivered before the deadline” under the provision of the Art. 13.08 of the Election Code. The Relator’s affidavit and exhibits show he mailed the money order about noon, February 15, 1964, at Jacksonville, Texas. The Jacksonville postmaster made an affidavit that a letter mailed in the Jacksonville post office at any time before 4:30 p. m. Saturday, February 15th, 1964, would depart from the Jacksonville post office at 5 :00 p. m. by truck and would arrive at the Lufkin post office at approximately 6:45 p. m. A receipt was mailed to Relator signed by Respondent Walker, showing the receipt of the money. The information at the top of this receipt shows either that Relator’s letter was postmarked February 15, 1964, with an “O.K. H.W.” or it shows the letter postmarked — “O.K. H.W.” and the receipt is dated February 15, 1964.

Relator contends the receipt shows the money was delivered on time, and it cannot be set aside in the absence of a showing of fraud or wrongdoing.

The affidavit and exhibits of Respondent Walker show the envelope enclosing the money order was addressed to Mr. Howard Walker, Chairman, Democratic Executive Committee, Angelina County, 107 N. 2nd Street, Lufkin, Texas. This envelope was postmarked February 15 P.M., 1964, Jacksonville, Texas. Respondent Walker also swears this envelope and money were not received by him until February 17, 1964.

These affidavits and exhibits presented a disputed issue as to the date of “delivery” of the additional assessment. Respondent’s receipt was not such an instrument the meaning of which could not be explained, changed or altered within the meaning of the parole evidence rule. The date on the receipt was not conclusive, but was subject to collateral attack. Thus, Respondent’s affidavit gives rise to a disputed fact question, i. e.; did Respondent in fact receive Relator’s money order prior to midnight of February 15, 1964? An appellate court does not have jurisdiction to entertain application of mandamus when the sworn petition and sworn answer present a disputed fact question. Rogers, v. Lynn, 121 Tex. 467, 49 S.W.2d 709, 51 S.W.2d 1113; Ferris v. Carlson, Tex.Civ.App., 314 S.W.2d 295; Cantrell v. Carlson, Tex.Civ.App., 313 S.W.2d 624.

By reason of our foregoing conclusions, the application for issuance of writ of mandamus is denied.

Mandamus denied.

Motion for rehearing will not be entertained.