author: WALKER, Justice. SMITH, Justice GRIFFIN, Justice

text:
    W. S. SWILLEY et al., Petitioners, v. Mrs. Norah McCAIN et al., Respondents.
    No. A-8947.
    Supreme Court of Texas.
    Jan. 15, 1964.
    Rehearing Denied Feb. 19, 1964.

      Hamblen & Hamblen, Fulbright, Crook-er, Freeman, Bates & Jaworski, Austin C. Wilson and Uriel E. Dutton, Houston, for petitioners.
    P. Harvey, John C. Randolph, Taylor J. Hughes, Able & Graham, Houston, for respondents.
   WALKER, Justice.

This suit in trespass to try title was instituted by George Grozier, a person of unsound mind acting by his next friend, against W. S. Swilley. After the deaths of the original parties, their heirs and successors in title were substituted as plaintiffs and defendants. The property in controversy is an undivided j4s interest in Lot No. 3, and an undivided interest in Lot No. 5, of the subdivision of the George Young tract located in the southwest portion of the Victor Blanco Grant in Harris County. Trial was to a jury, but the only issues submitted or requested dealt with defendants’ claim of title by adverse possession. While these issues were answered in the negative, the trial court rendered judgment for defendants on the basis of its conclusion that the plaintiffs had failed to show title in themselves. The Court of Civil Appeals affirmed as to Lot No. 5, but reversed and rendered judgment for plaintiffs as to the interest claimed by them in Lot No. 3. 354 S.W.2d 588.

Lorenzo de Zavalla, Jr., acquired title to three leagues of the Victor Blanco Grant by conveyance from his father dated Sept. 8, 1835. Defendants have a regular chain of title emanating from H. Masterson, to whom Zavalla conveyed the three leagues in 1903. The record also shows, a deed from Zavalla’s mother, Emily Hand, to George Young dated January 15, 1854, conveying a tract of 2,000 acres out of the three leagues. The land now in controversy, as well as that involved in the earlier cases discussed below, is part of this 2,000-acre tract. Plaintiffs claim through and under George Young, but no conveyance from Zavalla to his mother has been found. Instead of attempting to obtain a jury finding that a deed was made by Zavalla to Emily Hand, plaintiffs relied upon the proceedings in two former suits involving different parts of the 2,000-acre tract and the position taken by defendants and their predecessors in title in one of such suits.

In 1865 the land conveyed by Emily Hand to George Young was partitioned by the heirs of the latter into nine tracts, one of which was set apart to the widow and one to each of the children. Jane Young, the mother of George Grozier, received Lot No. 5 in the division, and her younger brother Malcolm, received Lot No. 3. Malcolm later died without having been married, and Jane Young inherited from him an undivided Yu interest in Lot No. 3. Jane married John Grozier and had four children: John, Robert, George and Hettie Ann. Upon her death each of the children inherited an undivided 14 interest in Lot No. 5 and an undivided Yse interest in Lot No. 3. One of the children, John, then died without issue, and his interest in the two lots passed one-half to his widow and one-half, jointly, to his sister and two brothers. If the George Young title is superior to that acquired by H. Masterson through his conveyance from Zavalla, George Grozier thus became vested with an undivided %4 interest in Lot No. 5 and an undivided 14s interest in Lot No. 3. These are the interests which plaintiffs seek to recover in the present suit.

In 1905 H. Masterson instituted an action in trespass to try title against the heirs of George Young in the District Court of Harris County to recover the land set apart to the children in the partition mentioned above. George Grozier was named as one of the defendants in the original petition, but the cause was severed as to him and several of the other heirs. The main case was then tried before a jury, which found that “there was a deed made to 2,000 acres of the Victor Blanco Grant by Lorenzo de Zavalla, Jr. to Emily Hand.” Judgment was rendered on the verdict in favor of the heirs who were parties to that cause, and Mas-terson appealed. The Court of Civil Appeals affirmed the judgment of the trial court, holding that the jury finding was supported by the evidence. Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626 (wr. ref.). This is the first case upon which plaintiffs rely. The severed cause against George Grozier, who was then a person of unsound mind, was settled by his guardian ad litem. Under the terms of the settlement, $150.00 was paid by Masterson for George Grozier’s interest in Lot No. 5. Judgment was entered approving the settlement, and decreeing that .Masterson recover title and possession of such tract. Lot No. 3 is not mentioned in the judgment.

Masterson’s title was subsequently acquired by W. S. Swilley, under whom defendants claim. In 1946 Swilley, his wife and three daughters brought an action in trespass to try title against W. H. Wagers in the District Court of Harris County to recover 235.36 acres out of Lots Nos. 4 to 8, inclusive. After the death of W. S. Swil-ley, the suit was prosecuted by his executrix and the other original plaintiffs. Wagers was a naked trespasser. In response to his demand, the Swilleys filed an abstract of the title upon which they relied, listing therein: (1) the instruments showing title in Zavalla; (2) the 1903 conveyance by Zavalla to Masterson; (3) the chain of conveyances by which W. S. Swilley acquired title from Masterson; (4) the 1854 conveyance by Emily Hand to George Young; (5) the presumption of a deed from Zavalla to Emily Hand predating her deed to George Young and conveying the land therein described; (6) the proceedings in the Masterson case; and (7) prior possession and the statutes of limitation. The district judge concluded from the evidence introduced that the Swilleys had established record title in themselves, and the jury found in their favor under the three and five year statutes of limitation. Judgment was accordingly rendered for the Swilleys. The Court of Civil Appeals affirmed, holding inter alia that under the rule of stare decisis the superiority of the George Young title was established by the decision in the Masterson case. Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673 (wr. ref. n. r. e.). This is the second case upon which plaintiffs now rely.

The Court of Civil Appeals held in the present case that the compromise judgment in the severed cause against George Groz-ier effectively divested the latter, at least as against collateral attack, of any interest in Lot No. 5. It further concluded: (1) that under the doctrine of stare decisis, the judgments in the Masterson and Wagers cases are available to plaintiffs as muni-ments of title; and (2) that since the Swil-leys had successfully asserted the presumption of a deed from Zavalla to Emily Hand in the Wagers case, they are now estopped to take a contrary position to the prejudice of the plaintiffs. Plaintiffs also say that the contentions made by the Swilleys in the Wagers case, the judgment in that proceeding, and the judgment in the Masterson case constitute admissions against interest. They contend that a deed from Zavalla to his mother has been proven thereby as a matter of law, just as it would be by an unimpeached recital in a subsequent conveyance executed by Zavalla. See Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442.

The judgments in the two earlier cases are not available to plaintiffs as muni-ments of title in the ordinary sense, because they were not parties to either of those proceedings and do not claim under anyone who was. We assume without deciding that in view of the position taken by the Swilleys in the Wagers case, the judgments, jury verdicts and other papers filed in both of the former suits were properly received in evidence as admissions against interest. See Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189. Such proceedings do not, however, conclusively prove that in fact a deed was executed and delivered by Zavalla to Emily Hand prior to his conveyance to H. Masterson. Reliance on the presumption of a lost deed and the successful assertion of the proposition that a prior decision is stare decisis of that issue may bind a party under principles of res judicata, estoppel or stare decisis, but cannot be regarded as having the same probative force as a recital of fact in a subsequent instrument executed by the grantor.

It is necessary at this point to notice two differences between the doctrine of res judicata and the rule of stare decisis. After a question of law or an issue of fact has been litigated and adjudicated in a court of competent jurisdiction, the same matter cannot be relitigated in a subsequent suit between the same parties or those in privity with them. This is by virtue of the doctrine of res judicata, which thus extends to both questions of law and issues of fact but binds only the parties to the first suit and those who claim under them. It may not be invoked by one who is not bound by the judgment in the earlier proceeding. See Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174; Read v. Allen, 56 Tex. 182; 30A Am.Jur. Judgments § 324 et seq. The judgments in the Masterson and Wagers cases are not res judicata here, because plaintiffs were not parties to either of those suits and do not claim under anyone who was.

As originally conceived and as generally applied, the doctrine of stare de-cisis governs only the determination of questions of law and its observance does not depend upon identity of parties. After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties. As a general rule the determination of a disputed issue of fact is not conclusive, under the doctrine of stare decisis, when the same issue later arises in another case between persons who are strangers to the record in the first suit.

Expressions by some of our Courts of Civil Appeals suggest that an adjudication of the location of a boundary line will control the location of the same line in a subsequent suit between different parties even though the first case turned upon an issue of fact or the questions of law involved in the later litigation are not the same. See Patterson v. Peel, Tex.Civ.App., 149 S.W.2d 284 (wr. ref.); Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784 (wr. dis.); McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068 (wr. dis.) ; Porter v. State, Tex.Civ.App., 15 S.W.2d 191 (no writ). Another intermediate court has refused to disregard orthodox limitations on the doctrine of stare decisis even in boundary cases. See Dunn v. Land, Tex.Civ.App., 193 S.W. 698 (no writ); Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505 (wr. dis. judg. cor.). See also Hodges, Stare Decisis in Boundary Disputes: Let There Be Light, 21 Tex.Law Rev. 241. No light can be thrown on that problem here, but it is our opinion that a decision upholding a jury finding that a missing deed was executed and delivered as against the contention that such finding had no support in the evidence is not stare decisis in a subsequent suit between different parties of the fact so found by the jury in the first case.

The principle of stare decisis does not make the Masterson case conclusive as to the superiority of the George Young title in the present suit. Plaintiffs say that they, have not contended that it is, but they do insist that the holding of the Wagers case as to the effect of the Masterson decision is stare decisis. We do not agree. The conclusion reached • by the intermediate court on that question in the Wagers case was unsound, and we did not unqualifiedly approve all of law declared in its opinion. See Rule 483, Texas Rules of Civil Procedure. A review of the application for-writ of error discloses, moreover, that approval of the stare decisis holding was not. necessarily involved in our denial of the writ of error. The holding of the intermediate court as to the effect of the Mas-terson decision is not, therefore, binding upon either defendants or this Court under the doctrine of stare decisis. See Conley v. Abrams, Tex.Civ.App., 7 S.W.2d 674 (wr. ref.); 14 Am.Jur. Courts § 74; 21-C.J.S. Courts § 198.

Defendants are not estopped to deny the superiority of the Goerge Young title. Ordinary equitable or quasi-estoppel may preclude a party from asserting a right inconsistent with his unsworn allegations or admissions in a former action, but such es-toppel arises only in favor of the parties to the first suit and those in privity with them. Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269; Railroad Commission v. Arkansas Fuel Oil Co., Tex.Civ.App., 148 S.W.2d 895 (wr. ref.); American Surety Co. of New York v. Martinez, Tex.Civ.App., 73 S.W.2d 109 (wr. ref.) ; Blackburn v. Blackburn, Tex.Civ.App., 163 S.W.2d 251 (no writ); 31 C.J.S. Estoppel § 121; 19 Am.Jur. Estoppel § 72 et seq. Judicial estoppel, which may be invoked by strangers to the record in the former proceeding, rest's upon statements made under oath in the course of such action. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292.

In Texas the presumption of a grant which arises from long possession and enjoyment of property coupled with other corroborating circumstances is one of fact, and as a general rule the trier of fact must determine whether the inference of a grant or conveyance is warranted by the evidence. Herndon v. Vick, 89 Tex. 469, 35 S.W. 141. See also Masterson v. Harrington, supra; Carlisle v. Gibbs, 44 Tex.Civ.App. 592, 98 S.W. 192 (no writ). The present record contains very little evidence of the type usually offered in support of the presumption, and certainly does not show as a matter of law that Zavalla made a deed to his mother before the conveyance to H. Masterson. Since no jury finding on that issue was obtained or requested and • the superiority of the Emily Hand title is not conclusively established by the proceedings in the Masterson and Wagers cases, the trial court properly rendered judgment for the defendants. We do not reach the question decided by the Court of Civil Appeals with reference to the effect of the compromise judgment in the severed cause against George Grozier.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.

GRIFFIN and SMITH, JJ., dissenting.

SMITH, Justice

(dissenting).

I respectfully dissent. Since it is my view that the plaintiffs, Mrs. Norah McCain et al., established title and were entitled to judgment awarding them title to both Lot 3 and Lot 5, this dissent is written in the light of the points of error presented in plaintiffs’ application for writ of error as well as the points upon which Swilley’s application was granted. I think a discussion of plaintiffs’ points will point up the soundness of my position in regard to the question upon which this court has rested its decision, and at the same time present plaintiffs’ position that the judgment in the severed portion of Cause No. 35,613, Masterson v. McDonald et al., dated February 16, 1911, was void. This dissent will be devoted to two basic propositions. One, that George Grozier, who was an original party defendant in the Masterson v. McDonald suit, and who was an original party plaintiff in the present suit, and his heirs, the present plaintiffs, are not to be denied their title to Lots 3 and 5 because of the rule announced in Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174. That case simply has no application to the present case. It will be demonstrated further in this opinion that the severance of George Grozier’s cause of action from the original suit in Masterson v. McDonald, supra, did not change his status as a party plaintiff. Therefore, in my opinion, the Court is in error in concluding that the plaintiffs do not claim under anyone who was a party to the original Master-son suit. The Kirby case has no controlling effect for the further reason: that case involved the finding of a jury on a fact question involving limitations contained in a trial court judgment, and not a «matter of law determined by an appellate court. Therefore, the trial court judgment was not a muniment of title. Whereas, by the Swil-leys’ own admissions, George Grozier had an interest in the land involved in Masterson v. McDonald, supra, in the subsequent suit of Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673, wr. ref. n. r. e., which was the same land of which Lots 3 and 5 involved in this suit is a part. This leads to my second position, which is, that while the Masterson case, on the question of the lost deed may not by itself be stare decisis, yet the judgment in Wagers v. Swilley,. supra, construing the Masterson judgment and its effect, was stare decisis, -the same as the construction of a will or any other instruments would have been, and the holding in Wagers that the lost deed had been established as a matter of law and that Master-son had no title to the land involved except the Young title, was stare decisis and binding on all parties. The holding in Wagers that there was a lost deed as a matter of law and the Court’s construction in Wagers of the effect of the judgment in Masterson, under which the Swilleys claimed, was admissible as admissions against interest and the Swilleys, therefore, under this theory are judicially estopped to deny the holdings in Swilley v. Wagers, supra. This is true for the reason that as plaintiffs in the Wagers suit, the Swilleys filed an abstract of title among other things stating that “they claimed the property by virtue of the presumed deed from Lorenzo de Zavalla to Emily Hand, predating the deed from Emily Hand to George Young dated January 15, 1854.” The Swilleys further asserted in Wagers that they claimed the land by virtue of:

“15. Deed from E. D. Hand and wife, Emily Hand, to George Young, dated January 15, 1854, recorded in Volume V, page 271 of the Deed Records of Harris County, Texas
“16. Presumption of a deed from Lorenzo de Zavalla, Jr. to Emily Hand, predating the instrument described in Item 15, conveying the same property therein described.”

Admissions in favor of the presumed grant from Lorenzo de Zavalla, Jr., to Emily Hand were contained in the abstract of title, wherein it was stated by the Swil-leys that the instruments that they listed were “abstract of their title to the land involved in this suit.” The Swilleys listed in the abstract of title the proceedings in the Masterson case and the judgment therein together with the mandate of the Court of Civil Appeals. This demonstrates that the Swilleys affirmatively claimed title to the land sued for through the Masterson judgment. That judgment recited that there was a missing deed which had transferred the property from Lorenzo de Zavalla, Jr., to the next predecessor in Swilleys’ chain of title, Emily Hand. The opinion affirming the Masterson case was also introduced in evidence by the Swilleys as a muniment of title. The Swilleys were successful in having the Court hold with them on the sole points that there was a lost deed from Lorenzo de Zavalla, Jr., to Emily Hand covering the property involved herein, and that the Masterson case (which divested H. Masterson of any claim to the de Zavalla Title, except through the Young heirs) was a muniment of title. These admissions, coupled with others, in their chain of title, and in open court by their (Swilleys’) attorney, unimpeached, established the lost deed and the superiority of the Young heirs’ title as a matter of law, especially since prior possession and all other circumstances supported the presumption of the lost deed in George Young, a common source. Under this record, the McCains were entitled to rely upon and did establish a lost deed from Lorenzo de Zavalla to Emily Hand. Under the doctrine of judicial estoppel, the Swilleys are judicially estopped, having taken the position above outlined, and the Court having rendered judgment upholding such position. They are bound by judicial estoppel as a matter of law. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292. In the Long case, this court quoted with approval the rule announced in 31 C.J.S. Estoppel § 121, p. 390, that:

“Under the doctrine of judicial es-toppel, as distinguished from equitable estoppel by inconsistency, a party is es-topped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary of the assertion sought to be made.”

Such rule is equally applicable to the present case. In support of the rule in C.J.S., supra, this court in Long cited the cases of Grier v. Canada, 119 Tenn. 17, 107 S.W. 970; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313. It was also held that it was not necessary that the party invoking the doctrine of judicial estoppel should have been a party to the former proceedings, citing Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 72 A.L.R. 587; Corder v. G. B. Sprouse & Co., 20 Tenn.App. 486, 100 S.W.2d 1001.

The holding in the case of Wagers v. Swilley, supra, that Lorenzo de Zavalla, Jr., had conveyed the title to 2,000 acres to Emily Hand, George Young’s Grantor, before 1854, and that Masterson v. Harrington, supra, was a muniment of title, and, therefore, there was no break in the title, is stare decisis. All material contentions here presented by the Swilleys were concluded against them in the Wagers case. The holding in Wagers was necessarily approved even though this court refused the application in Swilley v. Wagers, with the notation “writ refused, n. r. e.” That this is true is well stated by the McCains in their Counter Point Two:

“Since the only matters decided by the Court of Civil Appeals in Wagers v. Swilley (supra) was on the same set of facts as were presented in the case at bar, and it based its decision solely on its holding, that there was: (1) a lost deed from Zavalla, Jr., to Emily Hand, as a matter of law, as claimed by the Swilleys; and (2) That the judgment in Masterson v. Harrington (supra) (in which it was found there was such a lost deed to the property involved herein) was a muniment of title, as claimed by the Swilleys; and (3) The Court expressly refused to pass on or consider as material the points of Swilleys on the finding of adverse possession; the ‘Refusal of Writ of Error by the Supreme Court No Reversible Error’ could only mean that the Supreme Court approved the judgment on those grounds, and the case is available to Plaintiffs as stare decisis or estoppel by judgment, and admissions against interest. The Court of Civil Appeals did not base its decision or specifically find that the case of Master-son v. Harrington was stare decisis. It simply found that it was a muniment of title which the Petitioners claimed under and which contained the admission of the lost deed; along with the decision of Wagers v. Swilley that established the title through the Young heirs by stare decisis.”

The chains of title and the facts which were introduced in the present case are substantially the same as the facts that are recited to have existed in the decisions of Masterson v. Harrington, supra, and in Wagers v. Swilley, supra. The trial court erred in failing to admit in evidence the opinions of the Court of Civil Appeals because of recitals against interest and for the further reason that they were decisions on the law and title of the very land and facts involved herein. It would be a great injustice to hold that this court did not approve the basic holding in Wagers merely because we refused the writ, n. r. e., or because the refusal of the writ in the Master-son case in 1912 did not have the same meaning as the notation “refused” has today. Clearly, the rule that where the Supreme Court has decided certain questions relative to certain property, such decisions become stare decisis as to such questions, when raised in a subsequent action between different parties on the same facts, and respecting the same property, should be applied in this case. I would apply this rule, which has support in the following authorities :

State v. Franco-Amer. Sec., Tex.Civ.App., 172 S.W.2d 731, wr. ref. want of merit; O’Rourke v. Clopper, 22 Tex.Civ.App. 377, 54 S.W. 930, wr. ref.; Benavides v. Garcia, Tex.Com.App., 290 S.W. 739; Noland v. Weems, Tex.Civ.App., 141 S.W. 1031, wr. dis’m.; Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784, 795, wr. dis’m.; Hennegan v. Nona Mills, Tex.Civ.App., 195 S.W. 664, (1917), wr. ref.; Blaffer v. State, Tex.Civ.App., (1930), 31 S.W.2d 172, 190; Case-Pomeroy Oil Corp. v. Pure Oil Company, Tex.Civ.App. (1955), 279 S.W.2d 886, wr. ref.; W. T. Carter & Bro. v. Rhoden, Tex.Civ.App., 72 S.W.2d 620, wr. dis’m.; Allen v. West Lbr. Co., Tex.Com.App., 244 S.W. 499; Hermann v. Allen, 103 Tex. 382, 128 S.W. 115, (1910).

The Blaffer case, supra, quotes from Porter v. State, Tex.Civ.App., 15 S.W.2d 191, the rule that “though the parties to and lands involved in two actions are different, yet the same original surveys, boundary lines, and acts of the same surveyors, which determine the second action, having been involved in the other prior action, the determination of those matters by the highest court of the state in the prior action are binding and conclusive in the subsequent action, not as res judicata, but under the doctrine of stare decisis.” I recognize that this rule of stare decisis only applies to the decisions of the Supreme Court, yet I think it applies here. Our refusal, n. r. e., in the Wagers case amounts to a decision of this court. I feel quite certain that had this court disagreed with the basic holdings in the Wagers case, it would have been compelled to grant the writ. This court actually “refused” the writ in the Masterson case. The law questions involved in this latter case and on these questions, if presented today, the writ, no doubt, would be “refused.” It would be drawing a rather fine technical line to hold otherwise.

Since the McCains have the superior title to the land involved, they are entitled to recover against the Swilleys.

The defendants, Swilleys, claim title to Lot 5 under a final judgment, dated February 16, 1911. This is the same judgment referred to earlier in this opinion. The judgment is void and cannot support the Swil-leys’ claim to title. My position that the judgment is subject to collateral attack is based on the rule announced in 49 C.J.S. p. 824, infra.

The McCains, as plaintiffs, proved their inheritance of a %4ths interest in Tract No. 5 of the George Young Subdivision in the Victor Blanco Survey in Harris County, Texas. The Swilleys, in defense, offered and relied upon this judgment of February 16, 1911, entered in the severed part of the original cause No. 35,613, styled Masterson v. McDonald et al. The other part of this same cause went up on appeal as Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626, wr. ref. In that case the Court of Civil Appeals held that George Grozier’s relatives (heirs of George Young the same as he was an heir of George Young) had record title to the other undivided interest in the tracts which they had inherited through the same source as George Grozier inherited his undivided interest from George Young.

George Grozier was a defendant in the original Masterson suit. Masterson, the plaintiff, alleged in his petition that George Grozier was a lunatic and was confined in a state insane asylum. He had no regularly appointed guardian. The Court appointed A. R. Hamblen, a lawyer, as guardian to “defend the suit.” Mr. Hamblen filed a plea of “not guilty” on behalf of the lunatic, George Grozier. Mr. Hamblen also filed a similar answer on behalf of other defendants.

The record reflects that Masterson v. McDonald was a jury case. However, from the wording of the judgment of February 16, 1911, it appears that some form of severance had taken place and the jury relieved of its duties.

When Mr. Hamblen filed the plea of “not guilty” on behalf of the lunatic, George Grozier, the plaintiff’s title to all the land, tracts one through eight, was put in issue. As to George Grozier, the plaintiffs neither tried the title question, nor did they dismiss as to him. The title question was tried after the so-called severance, but the judgment in the main suit did not dispose of the George Grozier alleged interest in the title. The judgment entered was adverse to Mas-terson, the plaintiff. That judgment, as heretofore indicated, was affirmed in Mas-terson v. Harrington, supra, and writ of error was refused by this court. On February 16, 1911, just eleven days after the judgment was entered against Masterson, a judgment was entered in favor of Master-son against George Grozier, but Masterson did not recover the title. This severed portion of the case was tried before the same judge who presided in the main suit. George Grozier was in Court to defend his title to land and the only issue to be tried was the title question. The judgment shows on its face that it is void because the Court after finding that George Grozier had an interest in the land, proceeded to approve a settlement or compromise wherein Mas-terson paid $150.00. In that manner, Mas-terson attempted to divest George Grozier, the lunatic, of his title. The judgment shows on its face a transaction of business in the District Court affecting a lunatic’s property rights, whereas, the exclusive jurisdiction was vested in the County Court. Mr. Hamblen was appointed by the Court to defend the suit. From the recitations in the judgment, the Court did not find that Masterson had discharged his burden of establishing a superior title as against George Grozier, but to the contrary, the Court and Masterson recognized that an interest in the title was vested in George Grozier. George was not in Court to agree to or resist a sale of his inheritance.

I have no quarrel with the law relied upon by the Court of Civil Appeals, but say that the quotation from 44 C.J.S. Insane Persons § 151, p. 329, has no application here.

49 C.J.S. Judgments § 421, p. 824, which reads:

“A judgment is subject to collateral attack where the want of jurisdiction is with respect to the subject matter, or where, although the court has jurisdiction of the parties and the subject matter, the judgment is void for want of jurisdiction with respect to the power of the court to render the particular judgment or decree, as where the court, in entertaining jurisdiction and rendering judgment in a particular case, exceeds the powers conferred on it by constitutional or statutory provisions.”

does have direct application to the present case. See Messner v. Giddings, 65 Tex. 301; Ex parte Hughes, 133 Tex. 505, 129 S.W.2d 270.

There is no law which authorizes a district judge, with or without the assistance of a guardian ad litem, to traffic in the land of a lunatic defendant in a trespass to try title suit pending in his court. The issue as to title in this case should have been tried by the Court just as it was in the main suit. Had that been done, there can be no doubt but that the same judge under the identical title facts would have entered a judgment against Masterson. When Masterson made his offer of compromise and when the judge turned aside from the trial of title to consider the amount of money offered for the lunatic’s inheritance, the Court ceased to have any authority or jurisdiction to proceed. The Court had only the authority to try the title suit. Furthermore, the guardian ad litem had no authority to accept the compromise or to act as he did. See Wright v. Jones, Tex.Com.App., 52 S.W.2d 247.

There has been no trial of the title suit as between Masterson and George Grozier, an original defendant in the main suit. Article I, Section 19 of our Constitution, Vernon’s Ann.St. provides that:

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

George Grozier either owned the land or he did not. He either wins or loses the title suit on the proof made. The fact that the plaintiff, Masterson, was willing to pay money for George Grozier’s title does not alter the law. In a title suit, if the parties are sui juris, then they can halt the proceedings and enter into agreements and the judge can approve such agreements, but where a defendent is a lunatic represented by a guardian ad litem, no such agreement can be made that will deprive the lunatic of his title to land in consideration of the payment of money. Ex parte Hughes, supra; Brown v. Wood, Tex.Civ.App., 239 S.W.2d 195, wr. ref.; Crier v. Cowden, Tex.Civ.App., 251 S.W. 822, wr. ref.

For the reasons stated, the judgment of the trial court should be reversed and judgment here rendered for the McCains.

GRIFFIN, Justice

(dissenting).

I agree with the holding of the Court of Civil Appeals in this case. The Swilleys, having relied on the Masterson judgment in the Wagers case and having obtained a judgment based on such reliance, they cannot now take a position contrary to the one on which they prevailed.

      . Although his name also. appears in the record as Lorenzo de Zavala, Jr., he is referred to herein as Zavalla because that is the spelling used in Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626 (wr. ref.).


source: Caselaw Access Project

author: HAMILTON, Justice.

license: Public Domain

text:
    Russell S. HARDIN et al., Petitioners, v. CENTRAL AMERICAN LIFE INSURANCE COMPANY, Respondent.
    No. A-9645.
    Supreme Court of Texas.
    Jan. 8, 1964.
    Rehearing Denied Feb. 19, 1964.
    Brock, Wright, Waters & Galey, Cleddie F. Edwards, Lubbock, H. P. Kucers, City Atty., Dallas, for petitioners.

      Nelson, McCleskey & Harriger, Don Graf, Lubbock, with above firm, for respondent.
   HAMILTON, Justice.

The respondent, Central American Life Insurance Company, a domestic life insurance company having its home office in Lubbock, Texas, filed this suit to set aside ad valorem tax assessments made upon furniture, fixtures and automobiles owned by the company and located in Lubbock County, Texas, and to enjoin the collection of taxes asserted to be due by reason of such assessments. The taxing units (i. e., state, county, city and school) answered and brought a cross action for delinquent taxes based upon the assessments. Judgment in the trial court was for the taxing units. The Amarillo Court of Civil Appeals reversed and rendered for the respondents. 367 S.W.2d 935.

The respondent insurance company filed rendition sheets for each of the taxable years in question 1956 through 1961, which they assert was in accordance with Article 4.01 of the Insurance Code, V.A.T.S. Typical of such rendition sheets is the one for 1960, which is as follows:

Assets (per statement) $6,988,838 Personal property not included in statement 25,000*
TOTAL ASSETS $7,013,838
LESS: Real Estate $ 677,773
U. S. Bonds 1,322,045
Reserves 6,159,024
TOTAL DEDUCTIONS $8,158,892

It can readily be seen that when the deductions are made from the total value of the personal property that the value of the remaining assets would be zero. The “personal property not included in the statement” (see* above) consisted entirely of furniture, fixtures and automobiles against which the taxing units are assessing personal property taxes regardless of deductions.

The decision of this case involves the interpretation or the construction of Article 4.01 of the Insurance Code, which is substantially as follows:

“Insurance companies incorporated under the laws of this State shall * * be required to render for state, county and municipal taxation all of their real estate as other real estate is rendered. All personal property of such insurance companies * * * shall be valued as other property is valued for assessment in this State in the following manner: From the total valuation of its assets shall be deducted the reserve being the amount of the debts of insurance companies by reason of their outstanding policies in gross, and from the remainder shall be deducted the assessed value of all real estate owned by the company and the remainder shall be the assessed taxable value of its personal property. [All real estate, furniture, fixtures, and automobiles owned by any such company shall be rendered for taxation in the city and in the county where such property is located. All other personal property owned by such company shall be rendered for taxation in the city and county where the principal business office of any such company is fixed by its charter.]” (In brackets added in 1958 amendment.)

The petitioners contend that the total valuation of the insurance company’s assets from which the allowed deductions may be made does not include furniture, fixtures and automobiles or tangible property of the insurance company, but only includes intangible assets and that if this construction is not given Article 4.01, then said article is unconstitutional because it provides for an exemption of such personal property and is in violation of Article VIII, Section 1 of the State Constitution, Vernon’s Ann.St., the pertinent part of which is as follows: “* * * All property * * * whether owned by natural persons or corporations * * * shall be taxed in proportion to its value, which shall he ascertained as may be provided by law. * * * ”; and Article VIII, Section 2, which is as follows: “ * * * and all laws exempting property from taxation other than the property above mentioned shall be null and void.” (The property in question is not “above mentioned”.)

The Court of Civil Appeals held that “all personal property” as used in Article 4.01 means all personal property of every kind and character, including furniture, fixtures and automobiles, that the deductions allowed were to be taken from the total valuation of its assets, including tangibles and intangibles, and that the statute was a valuation statute and not an exemption statute, therefore not in violation of the Constitution. We agree with the Court of Civil Appeals.

Whether or not Article 4.01 makes a distinction between tangible and intangible personal property was decided in another context under another provision of the Insurance Code in City of Dallas v. Texas Prudential Insurance Company, 156 Tex. 36, 291 S.W.2d 693. That case involved the situs of furniture and fixtures for tax purposes. A provision of the Insurance Code provided that “ * * * For the purpose of state, county, and municipal taxation, the situs of all personal property belonging to such companies shall be at the home office of such company.” In holding that furniture and fixtures, as well as intangible assets, were taxable in the county of the home office of the insurance company, and not in the county where located, the court stated:

“ * * * We must give effect to the positive and unambiguous language of the statute.” 291 S.W.2d at p. 696.

In the instant case, we must give such effect to the statute. Article 4.01 states that "* * * All personal property of such insurance companies * * * shall be valued as other property is valued for assessment in this State in the following manner: From the total valuation of its assets shall be deducted the reserve * When the Legislature utilized the language “all personal property”, it could not have meant anything other than that furniture, fixtures and automobiles be included as well as intangible assets.

The petitioner taxing units argue that if the intent of the Legislature, prior to 1957, was to treat “all personal property” similarly, that intent is clearly changed by the 1958 amendment and a very definite distinction drawn between tangible and intangible assets. We agree that the Legislature did, by its 1958 amendment, make a distinction between tangible and intangible assets. However, such distinction is only drawn for purposes of locating situs for the different types of assets. Such amendment in no way affected the classification of property to arrive at assessed taxable value of personal property. Although this conclusion seems apparent from the wording of the amendment itself, the Court of Civil Appeals correctly pointed out that the caption and emergency clause show the limited purpose of the amendment to be to change the situs of certain tangible personal property to the place where such property is located. 367 S.W.2d at p. 938.

Petitioners’ argument that the construction placed upon Article 4.01 by the Court of Civil Appeals should be avoided because such would be unconstitutional is likewise without merit. We think the question of whether the allowance of the deduction of the reserve from the total evaluation of the insurance company assets amounts to an exemption of property owned by the insurance company and therefore violates Article VIII, Sections 1 and 2, of the Constitution of Texas, was settled by the case of Republic Insurance Company v. Highland Park Independent School District of Dallas County, 129 Tex. 55, 102 S.W.2d 184.

In that case, the court had before it the construction of Article 5057a, 1925 Revised Statutes, which in substance is now the second paragraph of Article 4.01 of the Insurance Code and deals with domestic fire and casualty insurance companies. That statute was in substantially the same language as the first paragraph of Article 4.01, the substance of which is quoted above. The difference in the two provisions is that the reserves of life insurance companies and fire and casualty insurance companies are defined differently. In both situations the statutes provide for a method of determining the valuation to be placed upon assets of the insurance companies for taxation purposes. This the Legislature clearly had a right to do under the Constitution. The Constitution, after providing that all property shall be taxed in proportion to its value, further provides that such values “shall be ascertained as may be provided by law.” Article .VIII, Section 1, Constitution of Texas. The Legislature has simply provided that in arriving at the valuation of assets of an insurance company, account must be given to the reserve.

The question was squarely met in the Highland Park case and it was determined that the statute was a valuation statute, not an exemption statute violative of the Constitution, by this language:

“The question is not one primarily of exemption of property from taxation, but is the fixing of a standard of valuation of personal property for taxation.” 102 S.W.2d at p. 193.

We hold that the formula for determining the value of personal property under Article 4.01, as above construed, does not amount to an exemption prohibited by the Constitution of Texas.

The judgment of the Court of Civil Appeals is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Aubra Lee CROMER, Appellant, v. The STATE of Texas, Appellee.
    No. 36443.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.

      Brown & Shuman by Dean Shuman, Lubbock, for appellant.
    Fred E. West, County Atty., Broadus A. Spivey and Wm. Quinn Brackett, Asst. Dist. Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is speeding; the punishment, a fine of $101.00.

Trial was before a jury in County Court at Law No. 2 of Lubbock County upon a complaint upon which the appellant had been convicted in Justice Court and had appealed.

The complaint alleged, and the court’s charge required the jury to find, in order to convict, that the appellant on or about December 31, 1962, drove a passenger car on a public highway in Lubbock County at the unreasonable, imprudent and unlawful speed of 76 miles per hour which was then and there a greater speed than was reasonable and prudent under the conditions then existing, at which time and place the prima facie reasonable and prudent speed limit applicable was 55 miles per hour.

The evidence shows that the appellant was, on the 31st day of December, 1962, at approximately 7:18 P.M., driving and operating an automobile on Highway 87 South of Lubbock when he was stopped by Texas Highway Patrolmen J. M. Cowan and H. D. Cleckler, Jr., who immediately prior thereto were parked at a location some 20 to 30 feet off the paved highway at the edge of a cotton field with lights off.

Installed in the patrol car was a radar set known as the Traffic Master 400 which was described as a portable type radar set used by the Highway Patrol throughout the state.

The officers were operating the speed testing device or radar when the appellant drove by at a speed which the officers testified was registered or measured by the radar at 76 miles per hour.

The evidence shows that the posted prima facie reasonable and prudent speed at the location was 55 miles per hour at the time in question.

There is evidence in the record tending to show that there were special hazards in the zone, and testimony from one of the patrolmen that even before the appellant entered the radar beam he could see him coming around the curve and could tell by the way he was approaching and by the sound of his vehicle that he was driving faster than he should have been. However, the patrolmen agreed that their testimony as to the speed the appellant was driving was based upon their observation of a reading of the meter on the radar set they were operating.

The appellant was the only other witness. He testified that it was a rather dark night but the weather was perfect and the visibility was perfect when the patrolmen stopped him; that the ’62 Lincoln Continental he was driving was new — had been driven 1500 to 2000 miles — ; the power brakes were in good condition; the lights were on and were working properly; the tires were good and there was nothing mechanically wrong with the car.

The appellant testified that he was nc-t going 76 miles per hour; that he had been driving' around 50 miles per hour but could not say how fast he was going when he passed and saw the lights of the patrol car. He also testified that he was not driving at a speed that was dangerous and estimated his speed at between 50 and 55 miles per hour.

The jury resolved the fact issues against the appellant and by their verdict found him guilty as charged in the complaint.

Three grounds are relied upon for reversal.

The first and second relate to the contention that the prosecution emanated from an arrest made by officers who, in violation of Art. 803a Vernon’s Ann.P.C., were designedly remaining in hiding and lying in wait unobserved in order to trap those persons, including the appellant, suspected of violating the speed law. Appellant’s first complaint is that the court erred in refusing to grant his motion for instructed verdict. His second point is that the court erred in failing and refusing to charge the jury concerning the fact issue.

The state’s position is that no lying in wait unobserved or designedly remaining in hiding, in violation of Art. 803a V.A. P.C., is shown by the evidence and that even so, Art. 803a is and has been declared and held by this Court to be unconstitutional and void.

While there would appear to be merit in the state’s position that the automobile in which the officers were operating the radar was not hidden, but was visible to oncoming traffic, Art. 803a contains a proviso that “any officer pursuing or lying in wait in any vehicle other than a motorcycle shall be held to be designedly remaining in hiding as defined in this Act.”

We are in accord with the state’s position that Art. 803a V.A.P.C. which contains such provision and which makes it the duty of the district or county attorney to dismiss any and all prosecutions wherein it is shown that the arrest was made by designedly remaining in hiding or lying in wait unobserved in order to trap those suspected of violating the laws of this state relating to speed is unconstitutional for the reason set out in Scoggin v. State, 117 Tex.Cr.R. 294, 38 S.W.2d 592, holding other portions of the statute void. This Court so held in Ex parte Heiling, 128 Tex.Cr.R. 399, 82 S.W.2d 644. Such has been the ruling of the Attorney General since 1939. Atty. General’s Opinion No. 0-431 dated March 7, 1939.

We direct attention to the fact that the opinion in Ex parte Heiling shows that the charge was that the arresting officer designedly remained in hiding as well as that he was not wearing the uniform, etc., required by Art. 803a.

Appellant’s remaining claim for reversal is that the court erred in failing to grant his motion for instructed verdict for the insufficiency of the evidence.

This claim is predicated upon the contention that the conviction is based solely upon testimony by two non-expert witnesses concerning matters with which they are not familiar or trained to understand, and that the test of accuracy of the radar set, as to the speed of appellant’s automobile, required under the opinion of this Court in Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311, was not met. •

The patrolmen agreed that they had not been trained and were not experts on the mechanics of the radar set, or how to repair it, but testified that they had received instructions and had been trained in its operation and how to properly test it for accuracy.

The testimony of the patrolmen shows that they made tests, both some hour before and immediately after the appellant’s speed was measured. These tests were made by the use of a tuning fork that was furnished them with the set, which when struck and held before the radar causes the radar meter to show a reading of 65 miles per hour. This, according to their instructions, was the reading which would show if the radar set was operating correctly.

The other test was by driving the patrol car with the radar set on, measuring the speed of the car against still objects and comparing the reading shown by the radar meter and the patrol car speedometer. Both tests, the patrolmen testified, showed that the radar set was operating correctly.

The patrolmen testified that they tested the radar set immediately after the appellant left because he had led them to believe there would be a trial.

In Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311, the test of accuracy by comparison of the speedometer reading of 60 miles per hour as the patrol car passed the radar unit was held insufficient because there was no showing what the radar unit registered at such time. Here the readings were shown to be identical.

This appears to be the first case to reach this Court where the use and accuracy of a portable radar set installed in an automobile has been brought before us.

The testimony of the officers regarding the radar measured speed of appellant’s automobile was introduced without objection. The question then is not as to its admissibility, but whether it has probative value and is sufficient to sustain a finding by the jury that the appellant was driving at an unlawful speed.

We hold that the testimony of the patrolmen as to the speed shown by the radar set they were trained to operate and to test for accuracy, and which they did operate and test and found accurate, was sufficient to sustain a finding by the jury that the appellant was driving at a speed in excess of 70 miles per hour.

To sustain the contention of the appellant would be to require the state, in every prosecution involving the speed of a vehicle in which it relied upon radar measurement, to call witnesses who could qualify as experts in the field of radar; who understood the principles by which speed was measured and registered on the set and the repair of radar sets, and who were qualified to testify as to the manner and means whereby the accuracy of a radar set may be tested by the use of a tuning fork, as well as the accuracy of the tuning fork furnished with the set.

All this aside, the testimony of the officers shows that the radar and speedometer test showed the same measurement of speed. We are not prepared to hold that the state was required to call qualified experts and prove the accuracy of the speedometer in the patrol car. The testimony introduced was sufficient evidence of the accuracy of the radar to give probative value to its measurement of speed.

We find the evidence sufficient and no reversible error appears.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

We are once again met with the problem which confronted us in Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93, regarding scientific tests. In the case at bar, the accuracy of the radar unit depended upon the accuracy of a tuning fork or the speedometer of the patrol car. Neither was shown to have been checked by anyone.

In Holley v. State, Tex.Cr.App., 366 S.W.2d 570, which reached this Court last year, there was proof that the speedometer had been calibrated for accuracy either at Austin, Corpus Christi or San Antonio at least every three months, plus the fact that the tuning fork had been brought to Austin and checked for accuracy by technicians.

No such proof as to either the speedometer or the tuning fork appears in the the case at bar. Attention is called to a portion of our opinion in Wilson v. State, 168 Tex.Cr.R. 439, 328 S.W.2d 311, wherein we said, “Patrolman Spellman testified that he oversaw the calibration of the speedometer of the patrol car in March, that it was calibrated in June and no correction was needed * *

I would reverse this conviction because of the insufficiency of the evidence to show that the scientific device, which furnished the only proof upon which this conviction may be sustained, was accurate.


author: WOODLEY, Presiding Judge.

text:
    Jimmy B. HARTGRAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 36476.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    J. W. Reid, Abilene, (On Appeal Only), Clay Coggins, Roby, for appellant.
    Clyde Boose, County Atty., Sweetwater, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction upon an indictment alleging that the appellant contributed to the delinquency of nine named children under 17 years of age “by acting in conjunction with said minor children in causing, encouraging and permitting said minor children to drink alcoholic beverages, to wit beer, which action on the part of the said Jimmy B. Hartgraves tended to injure and debase the morals, health and welfare of said minor children * *

The court, in his'charge, instructed the jury that the evidence showed that one of the named children was over 17 years of age and that there was no evidence that another of said children was present, and submitted the case to the jury and authorized a conviction upon a finding beyond a reasonable doubt that the appellant contributed to the delinquency of the remaining seven children in causing and encouraging them to drink beer, as alleged in the indictment, and the further finding that each or either of said seven children was over 10 and under 17 years of age.

The jury found the appellant guilty and assessed his punishment at 30 days in jail and a fine of $100.

We overrule the appellant’s contention that the indictment should have alleged that the named children were delinquents (or were dependent and neglected children). We do not agree that Art. 534 Vernon’s Ann.P.C. is violated only when the child is a delinquent and the accused contributes to his or her further delinquency.

The word “permitting,” which appears in the indictment, may be treated as surplusage. The court’s charge did not authorize a conviction upon a finding that the appellant “permitted” the children to drink beer.

We find no error in the overruling of appellant’s exception to the indictment.

The appellant filed an amended motion for new trial alleging, among other grounds, that the verdict of the jury and the judgment of the court were contrary to the law and the evidence, and further alleging that he would not be able to get a full, correct and complete statement of facts in the case because the veteran court reporter would be unable, due to his physical condition, to transcribe his notes and recordings sufficient to reflect a true, correct and full statement that would incorporate all of his informal bills of exception.

No statement of facts appears in the record.

The contention that the appellant has been deprived of a statement of facts on appeal is presented as ground for reversal by what is denominated a Bystander’s Bill.

This bill of exception was filed with the clerk of the trial court within the time allowed by Art. 760d Vernon’s Ann.C.C.P. The trial judge did not refuse to approve the bill within the time allowed by said statute. Under the terms of said Art. 760d, the bill must be considered as approved.

The bill of exception incorporates the affidavit of bystanders and certifies that appellant’s counsel tendered to the county attorney and to the trial judge a statement of facts adduced at the hearing of his motion for new trial which they refused to approve, though neither disputed the accuracy thereof.

The statement of facts in the bill of exception sets out the testimony of counsel for the appellant which supported the allegations of his motion for new trial and the bill of exception certifies that such testimony was not disputed by the state by any testimony, or from any source, on the hearing.

Other affidavits made and filed prior to the filing of the bill of exception appear in the transcript. They support rather than challenge the fact that the court reporter who was receiving a salary from the county and had taken the oath was, because of physical and other disability, incompetent and unable to perform his duties and that his notes and recordings could not be read or understood.

We do not reach the issue of whether appellant’s counsel had knowledge of the incompetency of the reporter, or whether the affidavits raising that issue may be considered.

No statement of facts was prepared by the trial judge, as provided in Art. 759a, Sec. 1, subd. E, V.A.C.C.P.

The facts certified in the bill of exception show that without any fault of his own or that of his counsel, the appellant has been deprived of a statement of facts relating to the hearing of his motion for new trial, if not a statement of facts on the trial. Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081; Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975.

The judgment is reversed and the cause remanded.


author: McDonald, judge.

text:
    Hector G. ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36458.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    Joseph Chacon, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft of corporeal personal property over the value of $50.00; the punishment, 3 years confinement in the state penitentiary.

Appellant plead guilty to the offense charged, after being properly admonished as to the consequences of his plea by the Court. The record also reflects that the appellant properly waived a jury trial, through his attorney and in person.

The appellant relies on Pitcock v. State, 168 Tex.Cr.R. 223, 324 S.W.2d 866, in contending that there is not sufficient evidence to support his conviction on his-plea of guilty.

In the instant case, after his plea of guilty, appellant was placed on the stand and testified that each and every allegation contained in the indictment was true and correct; that he was the same Hector G. Alvarez named in said indictment, and that he took possession of the tape recorder, over the value of $50.00, without the owner’s consent and with the intent to appropriate it to his own use. He further testified that the theft in question took place in Bexar County, Texas.

We find this testimony of appellant, in conjunction with his plea of guilty, sufficient to support the conviction. The testimony of appellant from the witness stand is a judicial confession and as such needs no corroboration. Martin v. State, 109 Tex.Cr.R. 101, 3 S.W.2d 90; Guerra et al. v. State, 138 Tex.Cr.R. 120, 134 S.W.2d 679; Fancher v. State, 167 Tex.Cr.R. 269, 319 S.W.2d 707; McCormick and Ray, Texas Law of Evidence, Vol. 2, Section 1223.

The Pitcock case, supra, relied upon by appellant, is easily distinguished from the case at bar, as in that case the appellants plead guilty but did not testify and thus a judicial confession was not present.

No reversible error appearing the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Lloyd Ray YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 36433.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    John Robert Florence, Kilgore, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the subsequent offense of driving while intoxicated; the punishment, one year in the Texas Department of Corrections.

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

Two officers testified that they saw the appellant driving his automobile back and forth across the center stripe on the highway at a fast rate of speed; and that after he had stopped, they observed his actions and conduct and based thereon, they expressed the opinion that he was intoxicated.

Proof of the prior conviction alleged was introduced and that the appellant was the same person so convicted.

Testifying in his own behalf, the appellant admitted he had drunk one can of beer and had another can with him when arrested, but he denied that he was intoxicated. He attributed any unusual physical condition to the long hours he had been working, and also testified that the steering gear of the car was defective which caused the erratic manner in which it was operated.

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

In his amended motion for new trial, appellant alleges that the testimony of Albert Pryor was unavailable to him because he was out of the county during the trial. Pryor was not summoned, no continuance was requested in order to later obtain his testimony, and appellant announced ready for trial. No error is presented.

Appellant’s complaint in said motion that he was not permitted to argue to the jury in rebuttal to the closing argument of the state shows no error. Art. 648 C.C.P.

The further complaint in the motion is that a member of the jury was related to the appellant within the third degree of consanguinity or affinity. This complaint cannot be presented by an informal bill of exception under the provisions of Art. 760e Vernon’s Ann.C.C.P. However, it is observed that the testimony on the hearing of the motion fails to show that any inquiry was made on the voir dire examination of the jury panel touching their relationship to the appellant. In the absence of a showing that such inquiry was made, appellant will not be heard to complain of such relationship after verdict. 1 Branch’s Ann.P.C.2d 541, Sec. 565; Perkins v. State, 120 Tex.Cr.R. 399, 46 S.W.2d 672. Further, there is no showing that the appellant exhausted his peremptory challenges and thereafter an objectionable juror was forced upon him. Rogers v. State, 109 Tex.Cr.R. 330, 3 S.W.2d 455.

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

Opinion approved by the Court.


author: BELCHER, Commissioner. MORRISON, Judge.

text:
    Ex parte Henry WILSON.
    No. 36300.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1963.
    Rehearing Denied Feb. 5,1964.

      Victor R. Blaine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James I. Smith, Jr., and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

By writ of habeas corpus filed in the County Court at Law No. 1 of Harris County, the appellant attacks as void the judgment of conviction for the offense of negligent collision as defined by Ordinance No. 41-39 of the City of Houston.

Appellant was convicted in the Corporation Court of the City of Houston under a complaint charging the offense of negligent collision and fined $25. Upon his appeal to the County Court at Law No. 1 he was again convicted and assessed a fine of $5. It is from confinement by virtue of a commitment issued under said judgment that appellant applied for a writ of habeas corpus. The writ was granted, and after a hearing the appellant was remanded to custody, and from such order he appeals.

It is contended that Subsection A of Ordinance No. 41-39 of the City of Houston, upon which this conviction rests, is void upon the grounds it defines the same offense as is defined in Art. 827a, Sec. 8, Subsec. 1(a), Vernon’s Ann.P.C., but prescribes a different punishment.

It is apparent that an essential element of the offense defined by the ordinance is a collision caused by the negligent operation of a motor vehicle in the manner prohibited by said ordinance.

Art. 827a, Sec. 8, Subsec. 1(a), V.A.P.C., regulates only the speed of motor vehicles on a public highway.

The foregoing ordinance and article are each applicable to a different set of facts. Therefore appellant’s contention cannot be sustained. Ex parte Dickson, 159 Tex.Cr.R. 117, 261 S.W.2d 709; Ex parte Mooney, 106 Tex.Cr.R. 156, 291 S.W. 246.

The ordinance not being in conflict with Sec. 8 of Art. 827a, V.A.P.C., or any other penal statute which has been called to our attention, the trial judge did not err in remanding appellant to custody.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In our original opinion, we failed to point out that this prosecution was had prior to the repeal of Art. 827a, Sec. 8, Subsection (l)(a) Vernon’s Ann.P.C., and the enactment of Art. 6701d, Art. XIX, Sec. 166(b) Vernons Ann.Civ.St. However, we remain convinced of the soundness of our original opinion.

Appellant’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Ex parte William OLIVER.
    No. 36516.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Jon N. Hughes and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant is held in custody by the sheriff of Harris County to answer twelve indictments charging him with certain felony offenses. Seven of the indictments charge appellant, in separate counts, with the offenses of conspiracy to commit felony theft and felony theft; two of the indictments charge him with the offense of conspiracy to commit felony theft; and three charge him with the offense of felony theft as a second offender.

Bond having been set at $1,000 in each case, in the total sum of $12,000, appellant sought his release from custody by petition for writ of habeas corpus presented to the Honorable A. H. Krichamer, Judge of Criminal District Court No. 4 of Harris County.

In the petition, appellant alleged that he was being illegally confined and restrained of his liberty in that there was no evidence to support the allegations contained in the indictments. Appellant further alleged that the bail which had been set was excessive in amount and he was unable to make same. Prayer was that he be discharged, but, in the event the court did find that there was evidence upon which to hold him, that the court reduce the amount of bail to a reasonable sum.

Judge Krichamer duly issued the writ of habeas corpus and, after a hearing, denied appellant’s application for discharge and remanded him to custody of the sheriff.

From such order, appellant gave notice of appeal.

At the hearing, the state offered in evidence the indictments and capiases issued in the twelve cases charging appellant with the offenses of conspiracy to commit a felony and felony theft.

Appellant sought to quash the second count in seven of the indictments, on the ground that the allegations were insufficient to charge an offense.

Appellant also sought to offer testimony that the charges against him were maliciously made, in support of his contention that there was no evidence upon which to base the prosecution. This testimony the court refused to hear.

C. C. Divine, appellant’s counsel, upon being called as a witness, testified that he had tried to make bond for appellant but that he had been unable to obtain anyone who would agree to make bond for him in excess of $5,000. Attorney Divine further stated that appellant owned both real and personal property in Harris County but did not, in his testimony, establish its value.

Claudell Scott, called as a witness by appellant, stated that he was engaged in the business of posting bail bonds in criminal cases and that he would make bond for appellant up to $5,000.

Under the record, we find no error in the court’s refusal to discharge appellant.

It is a well-settled rule that where an indictment is regularly presented in a court of competent jurisdiction by a grand jury regularly organized and there is a valid law under which the prosecution can be maintained, habeas corpus cannot be used to test the validity of the indictment, however irregular or insufficient in its averments. Ex parte Brannon, 163 Tex.Cr.R. 311, 290 S.W.2d 914; Ex parte Mitchum, 91 Tex.Cr.R. 62, 237 S.W. 936.

The sufficiency of the evidence to support the accusation in an indictment may not be tested by habeas corpus. Ex parte Mauck, 158 Tex.Cr.R. 200, 254 S.W.2d 128.

It is also the rule that the proper amount of bail must, of necessity, rest largely in the discretion of the trial judge. Ex parte Mathews, 154 Tex.Cr.R. 60, 204 S.W.2d 992.

We are unable to say, under the record here presented, that the trial judge abused his discretion in refusing to reduce the amount of bail in each of the twelve cases against appellant.

The judgment is affirmed.

Opinion approved by the Court


text:
    Ex parte Erwin L. BROWN.
    No. 36646.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    Harold Seay, Galveston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an original application for a writ of habeas corpus.

It has now been made known to this Court that relator is no longer confined, and the question raised by his application has become moot.

The application for writ of habeas corpus is ordered dismissed.

Opinion approved by the Court.


text:
    Edward F. WOOD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36440.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1964.
    Rehearing Denied Feb. 19,1964.
    Bryan Wingo, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is assault to murder with malice; the punishment, eighteen years in the penitentiary.

Appellant lived with his wife and children in the city of Corpus Christi. One of the children, Tracie Lynn Wood, the injured party, was about two years old. On March 27, 1963, appellant’s wife came to the fence of a next-door neighbor, with the injured party wrapped in a blanket. At such time, the child’s eyes, face, and head were swollen and she appeared to be in a stupor.

Later in the day, Deputy Sheriff W. H. McNellis went to appellant’s residence and brought appellant’s wife and the injured child to the district attorney’s office, where a complaint was made against appellant, upon which a warrant was issued for his arrest.

Officer McNellis then took the mother and child to a hospital, where the child was examined and treated by Dr. John M. Ether-idge.

Dr. Etheridge, in describing the child’s condition when he first saw her at the hospital, testified that she was asleep or unconscious and having twitching movements of the arms and legs; that her breathing was difficult because of swelling about the face; that her head was swollen out of shape from bruises and contusions, her eyes were swollen closed, her lips were swollen, and there were severe bruises behind the ear; and that she had a brain concussion and there were areas of hair not present on her head. The doctor stated that in addition to injuries to her head and face, the child had thirty other bruises on the rest of her body, two of which were one and a half inches long and three-fourths inch wide and shaped like a belt buckle. He also stated that the child was unable to eat because of the swelling and was fed liquids for thirty-six hours; that her condition was critical and could have caused death. The doctor further testified that some of the wounds were fresh and not over twelve to eighteen hours old but that a majority of the wounds were between eighteen to twenty-four hours old and that all were inflicted within seventy-two hours. He further testified that the wounds about the head and body could have been made by a fist or hand of a person the size of appellant. It was shown by the testimony that the child remained in the hospital for five days.

It was further shown that on the day in question, appellant was arrested and, after being duly warned, made and signed a written statement to the officers in which, omitting the formal parts, he stated as follows:

“I am Edward F. Wood and 28 yrs. old and I live at 902 Lewis Lynch Dr., Corpus Christi, Texas. I was feeding my 2yr. old child and she refused to eat her food. I slapped her with my open hand in her face about seven or eight times. I then made her stand in the corner for about 1% hours to punish her. I then put her back in bed and made her stay there till noon and made her eat. This fnst took place about 8: A.M. 3/25/1963. I made her go back to bed after dinner and kept her. She never cryed all after_noon long. [I made her get up and eat her supper. I then gave her a bath and I could see what I had done to her, I didn’t take her to the Dr. becouse she ate good both of the other meals.]
“I pulled her hair out of her head every time she would fall after I hit her. I have made this child stand in the corner for 1 Yz hours or longer for as long as she has been big enough to stand. Her name — Tracie Lynn Wood. I have done the same thing to all of the other kids for as long as I have been married to my wife (Sandra Lee Wood). I slapped Sharon Ann Friday because she spit her food out as I was trying to feed her. She is one year old in Fete ary. I Slapped her only one time on the right side of the face. Tracie is sc ear of water and one time while I was watering the yard I turned the water hose on her and she cryed. I also whipped Tracie with a belt to make her stand at the wall, 3/25/63_ after I had slapped her and pulled her hair out. I haven’t worked or supported these childmi since before Christmas, but I have been drawing unemployment from the State of Wyo. Tim statement is true and ccorrect — the best of my knowledge

Appellant did not testify and, other than calling his wife and daughter for the purpose of identification, offered no evidence.

We first overrule appellant’s contention that the evidence is insufficient to sustain the conviction.

The evidence, viewed in the light of appellant’s confession, the tender years of the child, and the injuries inflicted, is sufficient to sustain the jury’s finding appellant guilty of assault with intent to murder with malice aforethought. See: Hignett v. State, 170 Tex.Cr.R. 342, 341 S.W.2d 166, and Brumbelow v. State, Tex.Cr.App., 364 S.W.2d 232.

Complaint is made by appellant to certain portions of the jury argument of state’s counsel.

We find no reversible error in the argument and will discuss only that portion of the argument which appellant insists was a reference to his failure to testify.

In the assistant district attorney’s opening argument to the jury he, among other things, stated:

“We have discussed with you before, both sides did when you were sitting out here as a panel being questioned, the idea that you judge the credibility of all of the witnesses. As you have noticed, the only witnesses in this case were put on by the State, all of the evidence elicited from these witnesses is consistent; none of it is in confliction * *

Appellant’s objection to the argument was, in substance, that it was a reference to his failure to testify, which objection was by the court overruled.

The statement objected to was not a direct reference to appellant’s failure to testify.

While such statement might be construed as an indirect reference to appellant’s failure to testify, to come within the prohibition of the statute, Art. 710, Vernon’s Ann. C.C.P., the implication must be a necessary one — that is, one that can not be reasonably applied to the failure of the accused to produce other testimony than his own. Alvear v. State, 170 Tex.Cr.R. 378, 341 S.W.2d 426; Clark v. State, Tex.Cr.App., 362 S.W.2d 647.

Under the record in the present case, it would appear that appellant’s wife could have testified with reference to the child’s injuries. It is the rule that the state may comment upon the failure of the accused to produce his wife as a witness. Purifoy v. State, 163 Tex.Cr.R. 488, 293 S.W.2d 663; Urteago v. State, 169 Tex.Cr.R. 160, 333 S.W.2d 133.

Deason v. State, 167 Tex.Cr.R. 324, 320 S.W.2d 670, relied upon by appellant, is not here controlling, because in that case the bill of exception certified that the argument complained of was a comment upon the failure of the accused to testify, and, under the record in that case, this court was in no position to say that the trial court’s certification was incorrect.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.


text:
    Thurman Odell TRUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 36421.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    Rebearing Denied Feb. 19,1964.

      Rex Emerson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

The indictment alleged the primary offense of robbery by assault and two prior convictions for the offenses of robbery.

In his charge the court submitted to the jury the issue of appellant’s guilt of the primary offense and whether he had been previously convicted of one of the prior alleged offenses.

No statement of facts of the evidence adduced upon the trial accompanies the record.

Appellant predicates his appeal upon three claimed errors.

He first contends that the court erred in permitting the state to use the prior conviction for robbery to enhance the punishment, because it could not be determined from the allegations of the indictment whether the conviction was for a capital or an ordinary felony. The indictment, to which appellant filed no exception, after alleging the date of the primary offense charged that appellant “was then and there a person who had theretofore been convicted of two felonies less than capital * and then alleged the two prior convictions for robbery by date, number, style of the case, and the court in which the convictions were had. The contention is without merit.

The other two claimed errors urged by appellant pertain to the court’s charge. In the absence of a statement of facts, the alleged errors in the charge cannot be considered. Snyder v. State, 168 Tex.Cr.R. 482, 329 S.W.2d 292, and Fields v. State, Tex.Cr.App., 353 S.W.2d 470.

We do observe, however, that there is no merit in appellant’s contention that the court’s instruction to the jury to acquit him if they did not believe him guilty of the primary offense constituted a denial of' trial by jury on the issue of whether he had been previously convicted of the offenses alleged for enhancement. Under the court’s instruction, a finding by the jury that appellant was not guilty of the primary offense would have eliminated from the case any issue as to whether he had been previously convicted of the felonies alleged.

Finding no reversible error, the judgment is affirmed.

Opinion approved by the court.


author: ARCHER, Chief Justice.

text:
    Donald R. LANG, Appellant, v. Jack M. BASS, Jr., et al., Appellees.
    No. 11131.
    Court of Civil Appeals of Texas. Austin.
    Jan. 22, 1964.
    Gerald H. Fortnery, Houston, for appellant.
    Bracewell, Reynolds & Patterson, William Key Wilde, David C. DuBose, Houston, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order of the trial court sustaining defendants’ plea to the jurisdiction and dismissing plaintiff’s cause of action.

The appeal is predicated on three points to the effect that the trial court erred in sustaining the plea to the jurisdiction because the defendants were not parties to a prior suit; there could be no estoppel because the cause of action is different from that on which plaintiff prevailed in the prior suit and there was no pleading or proof of any injury to the defendants.

The cause is before this Court on an agreed statement of facts as follows:

“Plaintiff, DONALD R. LANG and Defendants, JACK M. BASS, JR. and C. L. K. & N. COMPANY, a partnership composed of Harold W. Clark, Beverly W. Landstreet III, Edward L. Kirkpatrick, Jr., and William Nelson II, acting herein by and through their respective attorneys of record, hereby agree that the following is a brief statement of this case and the facts proved on the hearing on said Defendants’ Plea to the Jurisdiction herein:
“This is an action for debt evidenced by a promissory note, as reflected in Plaintiff’s Original Petition herein. Plaintiff is alleging in this suit that the Defendants entered into a joint venture for the purpose of operating a sulphur mine in which all of said Defendants allegedly own interests. Plaintiff is seeking judgment against said Defendants jointly and severally for the balance due as reflected by said Plaintiff’s Original Petition. It is an undisputed fact that Plaintiff herein had recovered a judgment on the 6th day of November, 1961, in Cause No. 581,292 styled Donald R. Lang vs. United States Sulphur Corporation, and Thomas H. Murphy in the District Court of Harris County, Texas, a true copy of Plaintiff’s Original Petition and the judgment in said cause being attached hereto marked Exhibits ‘A’ and ‘B’ respectively. It is undisputed that this judgment was entered by consent of the parties thereto and that the note referred to in the petition and judgment in said Cause No. 581,292 is the same note referred to in Plaintiff’s Original Petition herein. It is also undisputed that said judgment referred to herein as Exhibit ‘B’ remains unsatisfied except to the extent set out in Plaintiff’s Original Petition in this cause. The foregoing facts were the only facts proved and were the only facts considered by the Court in arriving at its judgment of dismissal.
“The only issue of law involved in this case is, to-wit:
“1. Whether the taking of judgment in said Cause No. 581,292 estopped Plaintiff, herein, from maintaining the cause of action alleged herein against the Defendants, Jack M. Bass, Jr. and C. L. K. & N. Company, a partnership composed of Harold W. Clark, Beverly W. Landstreet III, Edward L. Kirkpatrick, Jr., and William Nelson II.
“We agree that this cause upon appeal may be decided upon this agreed statement in accordance with the Provisions of the Rules of Civil Procedure, Rule 378, and determined accordingly.”

We believe that the court improperly sustained the plea to the jurisdiction and in dismissing the cause of action.

As is set out in the statement of facts appellant Lang in a prior suit, finally reduced to judgment, on the same note as the one involved in this case, and foreclosed on certain stock and obtained $7,-000.00. Appellant sued the parties to the prior suit but not the appellees herein. It was on the above basis that appellees pled to the jurisdiction of the court.

We do not believe that the taking of judgment in Cause No. 581,292 estopped plaintiff herein from maintaining this cause of action.

44 Tex.Jur.2d, Sec. 139, Partnership, reads in part as follows:

“Because the partner’s liability is joint and several, the judgment is not a bar, however, to a subsequent suit against another partner on the same claim. And a judgment against one or more partners individually on a firm debt does-not bar an action against other partners who were not parties in the former suit.”

Burton v. Roff, 292 S.W. 159, Tex.Com.App., Sec. B, opinion adopted by Supreme Court.

Davis et al. v. First Nat’l Bank of Waco, 139 Tex. 36, 161 S.W.2d 467, 144 A.L.R. 1, Tex.Com.App., Sec. B, opinion adopted by the Supreme Court.

See 44 Tex.Jur.2d Sec. 247, as to pleadings and see also Articles 2033 and 2223, Vernon’s Ann.Civ.St. as to service etc.

The judgment of the trial court is reversed and the cause is remanded for trial.

Reversed and remanded.