author: SMITH, Justice.

text:
    C. H. LANGDEAU, Receiver for I. C. T. Ins. Co., Petitioner, v. REPUBLIC NATIONAL BANK OF DALLAS, Respondent. C. H. LANGDEAU, Receiver for I. C. T. Ins. Co., Petitioner, v. MERCANTILE NATIONAL BANK AT DALLAS, Respondent.
    Nos. A-7728, A-7729.
    Supreme Court of Texas.
    March 13, 1963.
    Cecil C. Rotsch, Austin, Keith, Mehaffy, McNicholas & Weber, Beaumont, Cureton & Lanham, Waco, for petitioner.
    Dan Moody, Austin, Leachman, Gar-dere, Akin & Porter, Dallas, for Republic National Bank of Texas.
    Carrington, Johnson & Stephens, Dallas, for Mercantile National Bank at Dallas.
   SMITH, Justice.

This suit originated in the 98th District Court of Travis County, Texas. The petitioners, two national banks, filed separate pleas of privilege to be sued in Dallas County, Texas, the county of the residence and location of each bank. These pleas were overruled by the trial court, and a judgment in each cause was accordingly entered. On appeal, the Court of Civil Appeals for the Third Supreme Judicial District of Texas, at Austin, Texas, reversed the judgments of the trial court and the causes were remanded with instruction to that court to render judgment sustaining petitioners’ pleas of privilege and transferring the causes as to petitioners to any Civil District Court of Dallas County in accordance with the provisions of Rule 89, Texas Rules of Civil Procedure. Tex.Civ.App., 331 S.W.2d 349. The controlling facts are fully stated by the Court of Civil Appeals. The parties stipulated the issue in that Court:

“The only issue involved in said plea of privilege hearing was the issue of whether the provisions of the federal statutes entitled said Defendants to have said plaintiff’s action against them transferred to the state court in Dallas County, Texas, or whether state statutes on venue of such action are controlling.”

Langdeau’s petition for writ of error was granted by the Supreme Court of Texas, and on November 23, 1960, this court reversed the judgment of the Court of Civil Appeals and affirmed that of the trial court. 161 Tex. 349, 341 S.W.2d 161.

The Supreme Court of the United States granted the national banks’ petitions for writs of certiorari. On January 21, 1963, the judgments of this Supreme Court were reversed and the causes were remanded for further proceedings not inconsistent with the opinion and judgment of the United States Supreme Court. 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523.

The law question involved in all courts, and the statutes relied upon by opposing parties to support their respective positions, is stated by Mr. Justice White writing for the United States Supreme Court:

“Each appellant filed a plea of privilege, as provided by the Texas Rules of Civil Procedure, asserting that it was located in Dallas County, Texas, and was therefore immune from suit in Travis County under the provisions of Rev.Stat. § 5198 (1878), 12 U.S.C. § 94, which provides:
“ ‘Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such as-
sociation may be established, or in any State, county, or municipal court in the county or city in which said
association is located having jurisdiction in similar cases.’
“Appellee, [Langdeau] on the other hand, relied upon Texas Insurance Code, Art. 21.28, Section 4, V.A.T.S. of which provides :
“‘(f) New Lawsuits. The court of competent jurisdiction of the county in which the delinquency proceedings are pending under this Article shall have venue to hear and determine all actions or proceedings instituted after the commencement of delinquency proceedings by or against the insurer or receiver.’ ”

The Court, after noting its jurisdiction to hear the appeals under § 1257, 28 U.S.C., sustained the position of the banks, holding that national banks may be sued only in those state courts in the county where the banks are located, citing Charlotte National Bank v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282, which involved a suit against a national bank brought in a county other than that in which the bank was located.

In accordance with the judgment of The Supreme Court of the United States, this court now sets aside its former judgment and renders judgment affirming that of the Court of Civil Appeals.

      . Mr. Justice Clark took no part in the consideration or decision of these cases: Mr. Justice Harlan dissented; Mr. Justice Black and Mr. Justice Douglas, while agreeing with the Court that the judgments were final, dissented on the merits of these eases.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Robert Taylor SHARP, Appellant, v. The STATE of Texas, Appellee.
    No. 35533.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Hal Adams, Walt Bondies and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is driving while intoxicated) the punishment, thirty-one days in jail and a fine of $200.

Officer Thomas R. Breedlove testified that on the night in question he and his partner, Officer Litherland, were riding in a squad car on East Illinois Avenue in the city of Dallas; that around 1:50 o’clock, a. m., they observed a Chevrolet automobile, driven by appellant, changing lanes in front of them; that they followed the automobile for four blocks and then stopped appellant after observing his vehicle weaving in the lanes of traffic. The officer testified that when appellant got out of the automobile he stated that he had drunk five or six beers at a party. In describing appellant’s actions and appearance Officer Breed-love stated that appellant had the odor of alcohol on his breath, that his speech was confused, he staggered when he walked, his eyes were bloodshot, his face was flushed, and expressed his opinion that at such time appellant was intoxicated.

Officer Litherland, called as a witness by the state, corroborated Officer Breedlove’s testimony and expressed his opinion that on such occasion the appellant was intoxicated.

As a witness in his own behalf, appellant admitted driving the automobile on the occasion and that he had drunk three or four bottles of beer at the home of a friend, Joe Lucre, but, in effect, denied that he was intoxicated. His testimony relative to the amount of beer he had consumed and his claim of sobriety was corroborated by Lucre when called as a witness in his behalf.

The jury resolved the disputed issue of intoxication against the appellant, and we find the evidence sufficient to sustain their verdict.

The record contains no formal bills of exception and no informal bills are reserved in the statement of' facts. There are no objections to the - court’s charge and no brief has been filed on behalf of appellant.

A separate transcript of the jury argument certified to by the official court reporter is brought forward in the record. The transcript is not approved by the court or by counsel for the state and the appellant. In the absence of such approval, the transcript does not constitute an informal bill of exception to the argument of state’s counsel, as authorized by subsection (c) of Sec. 2 of Art. 759a, Vernon’s Ann. C.C.P., • and presents nothing for review. McClain v. State, 166 Tex.Cr.R. 304, 313 S.W.2d 615.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Jimmie Warren CARROLL, Appellant, v. The STATE of Texas, Appellee.
    No. 35529.
    Court of Criminal Appeals of Texas.
    March 27, 1963.
    Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Rogers, Jack Hampton and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant pleaded guilty before a jury to the burglary of a sheet metal building housing a manufacturing company. Evidence was introduced sustaining the allegations of the indictment. It included the written confession of the appellant made while he was in jail, to Detective Mayberry, and a subsequent oral confession in which the appellant told Detective Mayberry he had given a pistol he took from the burglarized premises to his landlady, and which was corroborated by the landlady’s testimony and the recovery of the pistol.

All of the other property stolen was recovered and returned.

Over objection, and after the appellant had sought to have the attorneys representing the state and the witnesses instructed not to refer to an attempted burglary at the time he was taken into custody, A. J. Sanders, private patrolman for a protective agency, was permitted to testify that when he arrested the appellant about 10:50 P.-M. the night after the burglary for which he was on trial, the appellant was standing by a broken window of a place of business which his company served.

The jury having heard the evidence showing the commission of the burglary charged, and the arresting officer’s testimony tending to show the commission of an extraneous offense the following night, assessed the maximum punishment of 12 years.

The testimony showing that the appellant was arrested as he was standing at a broken window should not have been admitted.

It is true that in Cade v. State, 107 Tex.Cr.R. 276, 296 S.W. 520, 522, and perhaps other decisions, statements may b.e found that, standing alone, indicate the rule to be that “any evidence as to what the appellant was doing at the time he was arrested is admissible as á part of the res gestae of the arrest.” This is not so in all circumstances.

Mr. Sanders did not arrest the appellant for the burglary of the manufacturing company building. He acquired no information from the appellant that was relevant to such burglary or that led to the recovery of stolen property.

Appellant' was not armed, and did not resist arrest or attempt to flee.

Appellant’s guilt was settled as a matter of law when he pleaded guilty before the jury. The evidence in such cases is submitted to enable the jury to decide what punishment to assess. Art. 502, Vernon’s Ann.C.C.P.; Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83.

It is the jury’s province to assess, under legitimate testimony, an adequate punishment. Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869. That the defendant may have committed another unrelated offense is not legitimate evidence for that purpose.

The admission of evidence, not otherwise relevant, which tended to show that the appellant attempted to burglarize the building which had a broken window was prejudicial and deprived the appellant of a fair trial on the question of the punishment that the jury should assess for the burglary to which he pleaded guilty.

The judgment is reversed and the cause remanded.


text:
    William H. O’BEIRNE, Appellant, v. The STATE of Texas, Appellee.
    No. 35298.
    Court of Criminal Appeals of Texas.
    March 13, 1963.

      Charles E. Anderson, El Paso (court appointed counsel) for appellant.
    Edwin F. Berliner, Dist. Atty., Sam W. Callan and Oscar G. Galvan, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for theft by bailee of property of the value of $50 or over; the punishment, two years in the penitentiary.

The state’s evidence was undisputed that on April 11, 1962, the appellant rented a Chevrolet automobile of the market value of $3,155 from Airways Rent-a-Car in the city of El Paso. Appellant’s reservation for the automobile was taken over the telephone by Wayne Hansen, president of the company, who directed his secretary to deliver the automobile to him. The rental agreement which appellant signed before the automobile was delivered to him in Ed Paso by the secretary provided that he return the vehicle on April 15,-1962, and was conditioned that the vehicle should not be used outside this state nor be removed from the state without the prior written consent of the lessor.

It was the state’s theory that appellant converted the automobile to his own use by taking it to New Mexico without the consent of the owner.

In support thereof, the state called the witness Wayne Hansen, the president of the company and owner of the Chevrolet automobile, who testified that on the day in question, after receiving a telephone call from his secretary, he called the state police in Alamogordo, New Mexico,, to apprehend the automobile and that they picked it up in Alamogordo within an hour and a half after it was rented to appellant. He further testified that he did not give appellant permission to take the automobile outside the State of Texas and that he sent someone (he did not remember whom) to Alamogordo to pick up the automobile and that person returned it to him the following night.

The state also called Deputy Sheriff Don Whitley, who testified that on April 14, 1962, he went to Alamogordo, New Mexico, and took custody of the appellant, who was there confined in jail, and returned him to El Paso County, Texas.

We find the evidence insufficient to show that appellant removed the automobile from this state and took the same to New Mexico.

No witness testified that he saw the automobile in New Mexico after it was rented to appellant.

The testimony of Hansen, the owner of the automobile, that it was apprehended in Alamogordo, New Mexico, by the state police and was picked up in New Mexico by someone and returned to him in El Paso was clearly hearsay. On cross-examination he admitted that he did not go to New Mexico to get the car.

It is held that hearsay evidence is actually not evidence at all and cannot support the verdict of a jury. 24 Tex.Jur.2d 51, Sec. 557; Pitcock v. State, 168 Tex.Cr.R. 223, 324 S.W.2d 866.

We are unable to agree with the state that the proof of appellant’s arrest in New Mexico and the other facts and circumstances were sufficient to show that he took the automobile outside the state.

Because of the insufficiency of the evidence, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Charles Edward BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35560.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Dallas, George Milner and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

The conviction is for embezzlement upon .a plea of guilty before a jury; the punishment, five years.

The record contains no statement of facts •on the main trial or formal bills of exception. No brief has been filed in appellant’s behalf.

Appellant’s motion for new trial alleges that he was under seventeen years of age on the date of his trial. A statement of facts of the evidence adduced on the hearing of the motion accompanies the record. It shows that appellant, while testifying on the motion for new trial, stated that although he knew he was not seventeen he testified on the main trial that he was eighteen years of age because he thought he could get probation.

If appellant was not of sufficient age to authorize his conviction for a felony, he should have so shown on the main trial. Jones v. State, 157 Tex.Cr.R. 382, 248 S.W. 2d 928.

No reversible error appearing the judgment is affirmed.

Opinion approved by the Court.


text:
    Floyd TATE, Appellant, v. The STATE of Texas, Appellee.
    No. 35325.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Rehearing Denied April 3, 1963.

      John G. Cramer, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgour-ides and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on March 30, 1962, appellant was found guilty of burglary and his punishment assessed at a term of two years. The imposition of sentence was suspended and probation was granted.

Two of the nine conditions of his probation were that he: (1) commit no offense against the laws of this or any other state or the United States; and (2) avoid persons or places of disreputable or harmful character.

On July 26, 1962, the District Attorney filed a motion to revoke probation alleging, that appellant had violated the conditions of his probation on July 15, 1962, in com-, mitting the offense of felony theft. The state filed its amended motion during the hearing alleging that appellant on July 15, 1962, committed the offense of receiving and concealing stolen property and associated with known criminals and persons of vicious habits.

Hearing was had on August 2 and 3, 1962. The state introduced the written statement of the appellant in which he states that on the night of July 14, 1962, he was riding in a car with several other boys when they stopped at a service station; that after leaving the service station he first heard that two of the boys got some money at the service station and then they gave him ten dollars of the money. The operator of the service station testified that while he was servicing a car at the front several boys in another car were there. After they left he missed a bag containing about $150 in money, but that he could not identify the appellant as one of the group. The testimony of the probation officer shows that Ronald Vallier, one of appellant’s companions on July 14, was on probation for a felony offense; and that of his personal knowledge he did not know that appellant had violated any terms of his probation.

Testifying in his own behalf, the appellant admitted signing the statement, but states that before he signed it he drew two lines across each of the sentences which read that he heard the other boys say that the money came from the service station, and that they gave him ten dollars. He denied that he knew about or had any connection with the theft from the service station, that he heard anything about it or that they gave him any money.

It is contended that the general order revoking probation which is herein set out is not sufficient to make it effective because it contains no findings and conclusions upon which the court based its actions in making and entering said order.

The revocation is based upon the following order:

“On this the 3rd day of August, A.D. 1962, it appearing to the Court that the defendant, FLOYD TATE, had violated the terms of the Adult Probation heretofore accorded him herein, it is therefore the Order, judgment and Decree of the Court that the said probation be revoked and set aside.”

The hearing upon whether probation should be revoked is not a criminal trial,. Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135; Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566.

The order of revocation is not rendered fatally defective for the failure to recite the findings on which it was based. However, where request is made of the trial court to make such findings the failure to comply therewith may call for a reversal. 33 Tex.Jur.2d 530, 531, Sec. 35.

In the absence of any request of the trial court to make findings upon which it based its order of revocation appellant’s contention presents no error.

Appellant relies on McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748, for a reversal. What was said in McBee as to findings in an order of revocation was advisory only.

The motion for revocation, the trial amendment and the evidence are sufficient to authorize the court to make and enter the order revoking probation.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Frank Garza RAMIREZ, Appellant, Benny Ramarze Salas, Appellant, v. The STATE of Texas, Appellee.
    Nos. 35527, 35528.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    No attorney on appeal for appellant.
    Henry Wade, Dist. Atty., Harold Adams, Steve Guittard, H. Gordon Montgomery and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellants were separately charged by information with unlawfully carrying a pistol.

By agreement these cases were tried together before the court without a jury upon a plea of not guilty. They were found guilty and the punishment against each of them was assessed at ninety days in jail.

On arriving at the scene of a disturbance, in response to a call, Officers Adams and Womack found five men getting into an automobile. The appellant Salas, who was sitting on the right side of the front seat, opened the door and began backing out with his hands around his waistline. Officer Adams testified that he noticed Salas “toss his right arm” toward the floor board of the rear of the car. Immediately after appellant Salas had gotten out of the car Officer Adams found a pistol containing 7 live shells on the floor board in the back of the car.

At the time the officers approached the car, the appellant Ramirez was seated under the steering wheel on the driver’s side. On a further search of the car Officer Adams found a pistol containing 6 live shells under the front seat on the driver’s side.

The appellants did not testify or offer any evidence. No brief has been filed by either appellant.

The evidence is sufficient to support the convictions and no error appearing the judgments are affirmed.

Opinion approved by the Court.


text:
    William F. THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 35503.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Fowler Roberts, Dallas, for appellant.
    Henry Wade, Dist. Atty., Sam Paternos-tro, Tom Reese, and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is operating a motor vehicle upon a public highway while intoxicated; the punishment, 6 months in jail and a fine of $50.

Police Officer J. M. Lewis testified that on April 3, 1962, at approximately 8 P.M., after he and his partner, Officer F. G. Woodrow, had observed that it had no tail lights and had weaved off on the shoulder of Northwest Highway, in Dallas, they pursued an old model pickup, which the appellant was driving. The witness further testified that during the pursuit the pickup never returned to the pavement before it made a weaving left hand turn onto Bickham, where, the truck weaved in against some trees and into a shallow ditch before coming to a stop.

The officer related to the jury that after he walked up and was standing beside the pickup he noticed a strong odor of alcoholic beverage on the appellant.

The witness further testified that appellant staggered when he got out of the pickup; that as he talked back to the squad car he staggered and swayed; that when appellant got in the squad car he stated: “ * * * that he had had several drinks during the day while he was working.”

The statement of the defendant was a part of the res gestae and the trial court did not err in admitting the officer’s testimony in regard thereto. Cline v. State, 163 Tex.Cr.R. 141, 289 S.W.2d 291; Suiter v. State, 165 Tex.Cr.R. 578, 310 S.W.2d 81.

The officer, after getting into the squad car, observed that appellant’s eyes “were awful red and bloodshot and watery”; and that his speech was slurred and it would take him a while to decide what he wanted to say.

The witness further testified that there was an unopened quart of wine and an empty half-pint whisky bottle in the pickup, the wine being on the front seat.

The officer expressed the opinion that appellant was intoxicated.

Officer F. G. Woodrow gave similar testimony relating to the stopping of the pickup and appellant’s appearance and demeanor. He also stated that it was his opinion that appellant was intoxicated.

Appellant testified in his own behalf and offered other witnesses.

The jury resolved the issue raised by the evidence against appellant and assessed a punishment within the terms of Art. 802, P.C., Vernon’s Ann.P.C. art. 802, under which he was prosecuted.

The evidence is sufficient to sustain the jury’s verdict.

We overrule the appellant’s contention that the trial court erred in refusing to charge upon circumstantial evidence.

The opinion testimony of the officers, which reflected that appellant was intoxicated, was tantamount to direct evidence. Flack v. State, 169 Tex.Cr.R. 201, 332 S.W.2d 704; Hayes v. State, 162 Tex. Cr.R. 660, 288 S.W.2d 771; Kimbro v. State, 157 Tex.Cr.R. 438, 249 S.W.2d 919; Richardson v. State, 109 Tex.Cr.R. 403, 5 S.W.2d 141. It is where the record reflects no opinion testimony and the intoxicated condition is proven as a matter of inference from facts in evidence that a charge on circumstantial evidence is required. Warren v. State, 131 Tex.Cr.R. 303, 98 S.W.2d 197.

No reversible error appearing, the judgment is affirmed.


text:
    Charles Fray COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 35317.
    Court of Criminal Appeals of Texas.

      Feb. 13, 1963.
    Rehearing Denied March 27, 1963.

      Aultman & Riley, by Randell C. Riley, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., John Brady, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for aggravated assault; the punishment, eighteen months in jail.

The statement of facts shows that it does not contain all of the evidence adduced upon the trial on the merits. Therefore the sufficiency of the evidence to support the conviction cannot be appraised. Mitcham v. State, 169 Tex.Cr.R. 152, 332 S.W.2d 714; Wheeler v. State, Tex.Cr. App., 338 S.W.2d 735.

Appellant insists that the trial court erred in refusing his motion for new trial because of jury misconduct.

The motion alleged that during the deliberations of the jury one of the jurors who wanted to assess the punishment at eighteen months told those who were for a lesser punishment that he knew the time appellant would get as credit for good time, and that appellant would serve nine months or one year if given eighteen months. Then, because of such information, all jurors voted for eighteen months, believing they were assessing a lesser sentence.

The state controverted the motion for new trial and an affidavit of one juror was attached.

In support of his motion the appellant called 3 jurors. Their testimony shows that after they had found the appellant guilty the foreman of the jury told them, and also-showed them by figuring on some paper,, that if the punishment was assessed at eighteen months then he would have to-serve approximately one year. The foreman of the jury testified that at the time of this discussion some of the jurors thought one year was sufficient, while others held out for two years; and after the discussion they all agreed to assess the punishment at eighteen months in jail.

The information given by the foreman of the jury and the discussion by the jury of the time it would take appellant to-serve eighteen months reveals no untrue or incorrect statements. It being common-knowledge that an inmate receives credit under certain conditions, the juror’s statements and the discussion were not prejudicial to the rights of the appellant and no-error is shown. Art. 5118a, Vernon’s Ann. R.C.S.; Napier v. State, 166 Tex.Cr.R. 361, 314 S.W.2d 102; Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929; Massey v. State, 170 Tex.Cr.R. 352, 340 S.W.2d 291.

Formal Bills of Exception Nos. 3, 4 and 5 were refused by the trial court for the reasons thereon stated when presented to him for approval. Appellant did not accept the trial court’s reasons for refusing to approve the bills, and no bystanders bills were filed. The refused bills cannot be considered. Art. 760d, Vernon’s Ann.C.C.P.; Beale v. State, 171 Tex.Cr.R. 319, 350 S.W.2d 207; Cook v. State, Tex.Cr.App., 356 S.W.2d 149.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Leo W. BLAKE, Appellant, v. The STATE of Texas, Appellee.
    No. 35417.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    Stewart & White by Thomas D. White, Charles M. Leftwich, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James S. Shatto, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is embezzlement; the punishment, two years in the penitentiary.

The indictment charged that on or about the 15th day of March, 1961, the appellant did unlawfully and fraudulently embezzle $970 in money belonging to one B. J. Stahl-man.

It was shown by the state’s evidence that appellant was the manager of Cash-Way, Inc., a retail lumber business in the city of Houston. B. J. Stahlman, the injured party, was vice-president and general manager of the company and also president and general manager of Stahlman Lumber Company, which furnished materials to Cash-Way, Inc.

On March 29, 1961, it was brought to Stahlman’s attention that a shortage had occurred in the Cash-Way company business around March 15 or 16. Upon investigation it was ascertained that there was a shortage of $970 in the company funds on March 15. The investigation also revealed that on such date a check in the amount of $970 given the company by O. C. Meador for purchase of building materials had been deposited to the company account at the bank hut no sales ticket was issued for the materials. The investigation further disclosed that other sales on such date totaled the exact amount of the check deposited hut that the cash from those sales was not deposited in the bank.

Stahlman, the prosecuting witness, testified that after the shortage was discovered he contacted the appellant, who was out of the city, and requested that he return to Houston as soon as possible; that on March 29, appellant did return and reported to his office around 4 o’clock, p. m., at which time Jim Clegg, an attorney for the company, and Officers Carpenter and Schultea,, of the sheriff’s department, were present. Stahl-man testified that he then proceeded, in the presence of the two officers and the attorney, to engage appellant in conversation relative to the shortage and that in the conversation appellant admitted he had been taking money from the company and that he took the money from the Meador check on March 15.

Following his admission of guilt, appellant was placed under arrest and taken to the sheriff’s office, where he made and signed a written confession to Officer H. C. Carpenter, which was introduced in evidence by the state. In his confession appellant admitted taking money from the company from various checks and particularly the $970 Meador check.

Testifying as a witness in his'own behalf, appellant denied taking the $970 from Cash-Way, Inc., and denied that he told the injured party, Stahlman, that he took the money. Appellant also repudiated his written confession made to Officer Carpenter and testified that the reason he signed the statement was to help Stahlman recover from the bonding company the money which was missing from the business.

On cross-examination of the state’s witness Stahlman, appellant sought to show that a civil suit had been filed by Stahlman Lumber Company, Inc., against appellant and the bonding company, Fidelity and Deposit Company of Maryland, to recover the sum of $31,086.75 alleged to have been taken by appellant. The state objected to such testimony on the ground that it was immaterial, which objection was by the court sustained. In the absence of the jury, appellant perfected his bill of exception by showing, upon further cross-examination of the witness, that such suit had been filed and was pending. Appellant again sought to offer such testimony before the jury, stating to the court that it was being offered to show bias upon the part of the prosecuting witness and also to impeach his testimony given in the jury’s presence that he did not know that such suit had been filed. This offer was by the court refused.

The testimony should have been admitted. Stahlman testified before ' the jury that he did not know of such suit being filed. Appellant should have been allowed to show that such suit had been filed. It is well settled that great latitude is allowed in cross-examination when its purpose is to bring out facts which will give to the jury the attitude, motive, and interest which may be affecting the testimony of a witness. Hughes v. State, 163 Tex.Cr.R. 575, 294 S.W.2d 846. For the purpose of discrediting him, it may be shown that a prosecuting witness has brought a civil suit for damages based upon the same occurrence as that for which the accused is being prosecuted. 45 Tex.Jur. 77, Sec. 222; Vyoral v. State, 88 Tex.Cr.R. 34, 224 S.W. 889; Branford v. State, 165 Tex.Cr.R. 314, 306 S.W.2d 725. The prosecuting witness, Stahlman, gave testimony most damaging to appellant and, under the record, the court’s refusal to permit appellant to show that a suit had been filed against him (appellant) and the bonding company by the company of which the witness was an officer and stockholder was error.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Donald L. YANCEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35491.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is sodomy; the punishment, two years.

Trial was before the court on a plea of nolo contendere.

The testimony of the boy on whose sexual parts the appellant was charged in the indictment with having used his mouth for the purpose of having carnal copulation, and the confession of the appellant show without question the appellant’s guilt, as charged.

No brief has been filed in appellant s behalf. The proceedings appear to be regular and we find no error which would warrant reversal.

The sentence provides for appellant’s confinement for a term of not less than one hour nor more than two years. It is reformed so as to provide that he be confined for a term of two years, the minimum punishment for the offense of sodomy having been assessed. Art. 524 Vernon’s Ann. P.C.

As reformed, the judgment is affirmed.


author: BELCHER, Commissioner. McDonald, judge.

text:
    Oscar C. O’BRIEN, Appellant, v. The STATE of Texas, Appellee.
    No. 34834.
    Court of Criminal Appeals of Texas.
    Jan. 30, 1963.
    Rehearing Denied March 13, 1963.

      J. B. Sallas, Crockett (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Lee P. Ward, Jr., and Walter A. Carr, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder, with the punishment assessed at death.

The deceased and his wife returned to their home about 10 P.M., September 4, 1961. Shortly after their return they retired for the night. The wife of the deceased testified that about 1 A.M. she was awakened by her husband’s voice saying he thought he had been cut and asking her if she had seen anyone come into the room and hit him, and she replied in the negative. She saw some blood on his undershirt in the center of his chest area. Then the deceased was immediately taken to the hospital.

Audrey Pipkins, sister of the appellant, testified that about 1 A.M., September 5, the appellant came to a cafe where she was working, showed her a knife, and told her he had just cut James (deceased). While testifying she identified a knife that was exhibited to her as looking like the one the appellant showed her at the cafe.

Officer Walker, of the Homicide Division of the Houston Police Department, testified that several physicians were present when he first saw the deceased at the hospital. Later, when the deceased said he thought he was dying, he told Officer Walker that the appellant had stabbed him. Shortly ■thereafter the appellant was apprehended, and as a result of a conversation with him the appellant led the officers about ten miles -to a place where he pointed out a knife in the grass which he said he used to. stab the deceased. Officer Walker further testified that he saw the physicians remove a broken knife blade about an inch and a quarter long from the heart of the deceased; and that they delivered the blade to him which he exhibited at the trial and he also exhibited the knife appellant used to stab the deceased and when placed together they completed the blade.

The testimony of two physicians reveals that they performed an autopsy on the body of the deceased which disclosed a broken knife blade about one and one-half inches long in the heart of the deceased which caused his death.

In a signed written statement made to Officer Rogers by the appellant he admitted going into the bedroom where the deceased was sleeping, called to him, and as he raised up he cut him with his knife.

The appellant testifying in his own behalf stated that he had been living in the same house with the deceased and his family from January to September 4, when he and the deceased had an argument in the afternoon of September 4; that about 7 P.M., the deceased told him if he slept there that night he would kill him so the appellant left. He testified that he returned to the house about 1 A.M., and wanted to sleep but was afraid and decided he would talk with the deceased; that he called the deceased, who was in bed, and when he got up he began reaching for something under the pillow and being in fear of his life he stabbed the deceased with a knife and walked out; and that he knew that the deceased had a knife and a pistol.

The court charged the jury on the law applicable to murder with and without malice, and self defense against real and apparent danger.

It is contended that this conviction cannot stand on the ground that the statements of the appellant introduced by the state that he had “just cut a boy” and “I just got the urge to cut James (deceased) up a little” were exculpatory and absolved him of malice, which statements the state failed to disprove.

A similar contention was considered in Tyson v. State, 142 Tex.Cr.R. 152, 151 S.W.2d 841, where the state offered the res gestae statement of the appellant that “I only shot him in the leg”; the accused was assessed thirty years for murder with malice. There it was held that such statement did not exculpate the appellant from guilt and was not exculpatory. This holding is here applicable and controlling. However, in the instant case no complaint was made of the failure of the court to charge on exculpatory statements. The appellant testified in the case and admitted stabbing the deceased but claimed that he did so in self-defense.

The appellant strenuously insists that the knife not being a deadly weapon per se or used in a deadly manner and considering the facts 'and circumstances surrounding the killing, the evidence is insufficient to support a conviction for murder with malice.

Upon a careful and thorough consideration of the evidence it is concluded that it is sufficient to warrant the jury’s finding that the appellant was guilty of murder with malice as charged.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

Appellant contends that the trial court fell into error in failing to charge the jury on the effect of his statements introduced by the state that he had “just cut a boy” and that he “just got the urge to cut James [the deceased] up a little”, it being appellant’s position that those statements were exculpatory and were relied upon by the state and that they were not disproved.

We do not think the statements were exculpatory. They did not exculpate appellant from guilt. Moreover, appellant testified in the case, and the state did not rely upon the statements to show his guilt. Had appellant’s counsel timely requested a special charge or had he taken objection to the action of the court in failing to charge on the effect of the statements— which he did not do — we express the opinion that the court would not have erred in refusing the request or in failing to charge on the effect of the statements, in view of the record before us.

Appellant also contends that the weapon used was not a deadly weapon, per se, and was not used in a deadly manner.

It is our view that it may be presumed that death was designed, from the manner of the use of the knife, and that such intention clearly appeared. Appellant made no request of the court for a charge on the knife not being a deadly weapon, nor did he except or object to the failure of the court to give such charge. We find no merit in appellant’s contentions. They are ■overruled.

Remaining convinced that we correctly disposed of this case in our original opinion, appellant’s motion for rehearing is overruled.


author: McDonald, judge.

text:
    Albert JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 35544.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Phillip B. Baldwin,, Doyle Curry, Marshall, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted in the District Court of Harrison County, upon his plea of guilty, for the offense of burglary, and his punishment was assessed at three years in the penitentiary.

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

Appellant, in his brief, complains that the trial court should have granted a new trial.

The facts relied upon are not shown in the record by formal or informal bill of exception.

Where the record does not contain the evidence nor any bills of exception, matters such as are set up in the motion for new trial cannot be intelligently reviewed. Jackson v. State, Tex.Cr.App., 159 S.W. 846.

There is no statement of facts on the motion for new trial.

No reversible error appearing, the judgment is affirmed.


text:
    H. K. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 35323.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Rehearing Denied March 27, 1963.

      James B. Turner, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is violation of an ordinance of the City of Houston which provides that it shall be unlawful to park or stand any vehicle other than a commercial vehicle in any truck loading zone during certain hours.

The prosecution arose in the corporation court. Trial de novo in County Criminal Court at Law No. 2 was before a jury. This appeal is from a judgment rendered on the jury’s verdict assessing a fine of $125.-00.

The appellant was charged and convicted for a like offense and the judgment was affirmed in Stecher v. State, 358 S.W.2d 380.

While other grounds of reversal are raised, the controlling question, as we see it, is whether the vehicle which appellant parked in a zone marked as a truck loading zone was a commercial vehicle.

In the prior case an ordinance of the City of Houston was introduced which defined trucks or commercial vehicles as “Every motor vehicle designed, used or maintained primarily for the transportation of property.”

In the trial from which this appeal was taken such ordinance was not introduced and the court, in his charge, gave the jury the definition of a “commercial motor vehicle” taken from Art. 6675a-l (i) and (j) Vernon’s Ann.Civ.St.:

“Our Statutes further provide that a commercial motor vehicle means any motor vehicle, other than a motorcycle or a passenger car, designed or used primarily for the transportation of property, including any passenger car, which has been re-constructed so as to be used, and which is being used, primarily for delivery purposes. Our Statutes further define a passenger car as meaning any motor vehicle designed or used primarily for the transportation or persons.” (“or” substituted for “of”, evidently by typographical error.)

The motor vehicle of the appellant is described in our opinion in appellant’s former appeal above cited. The evidence as to the use being made thereof is not materially different. We hold that such vehicle was not a commercial vehicle under the statute.

Ordinances of the City of Houston were introduced authorizing the city traffic engineer to determine the location of curb loading zones and the placing and maintaining of appropriate signs indicating such zones, and providing that such signs or markings in place shall constitute prima facie evidence that same were installed by the traffic engineer pursuant to such authority.

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

The judgment is affirmed.


author: WOODLEY, Presiding Justice.

text:
    Pete Flores MASSIATE, Appellant, v. The STATE of Texas, Appellee.
    No. 35474.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Irving L. Bates, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James Ernest Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Justice.

The offense is the unlawful possession of marihuana; the punishment, enhanced by two prior convictions for burglary, life.

The prior convictions were proved and stipulated.

The facts are undisputed.

Officers Westbrook, Creed and Dotson had under surveillance some marihuana plants that were growing alongside the creek in a brushy area of the Coliseum tract said to be owned by Bexar County.

On May 10,1962, the officers observed the appellant arad one Manuel Guajardo come from the road and pick up a 5 gallon tar bucket which they filled with water from the creek and proceeded to water the plants.

There were 19 plants in one group and 10 in another. They occupied two small cultivated areas and were some 9 or 10 inches in height. The plant groups were some 18 to 20 feet apart.

After they watered the plants, the appellant and Guajardo were taken into custody.

Appellant’s confession was introduced in evidence without objection. In it he stated that he and Guajardo went to the location for the purpose of watering some marihuana plants that they had planted two months before, and that they went into the brush because they saw Detective Creed coming down the hill, and while they were hiding in the brush he came up and arrested them.

The plants were pulled up by the officers and were examined and analyzed by George Taft, chemist for the Department of Public Safety, and found to be marihuana.

Appellant’s first contention is that the court erred in refusing his requested definition of “Possession”.

No exception to the court’s ruling is shown in the record, and the question is not before us for review. See Medlock v. State, Tex.Cr.App., 356 S.W.2d 312, and cases cited.

We observe, however, that the court adequately defined “possess” in his charge as meaning the care, management and control of the narcotics. Cuellar v. State, 169 Tex.Cr.R. 604, 336 S.W.2d 159.

The second contention is that appellant never came into possession of a narcotic drug because the marihuana plants were not severed from the soil until the officers pulled them up; because there was not a sufficient amount of marihuana in the plants to be applied to the use commonly made of such, and there was no narcotic drug contained in the plants pulled up by the officers.

The appellant’s expert witness Frederick W. Bieberdorf, Senior Research Biologist at Southwest Research Institute, identified the plants offered in evidence as Cannabis Sativa or Marihuana plants. He testified, however, that the narcotic in such plants is produced only in the flowering heads of the pistillate or female plant, and the plants in evidence not having reached the flowering stage, there was no more than a microscopic bit of narcotic, if any, in the marihuana plants.

Whether the marihuana plants were narcotic drugs, possession of which is unlawful, does not rest upon the biologist or chemist’s definition or classification, but upon the statute under which this prosecution was had.

Art. 725b, Vernon’s Ann.P.C. makes it unlawful for any person to possess or have under his control any narcotic drug (Sec. 2(a). “Narcotic drugs” means, among other things, Cannabis (Sec. 1(14).

The term “Cannabis” as used in the statute “ * * * shall include all parts of the plant Cannabis Sativa L., whether growing or not * * *. The term ‘Cannabis’ shall include those varieties of Cannabis known as Marihuana, Hashish and Hasheesh.” (Sec. 1(13).

Construing these provisions of Art. 725b, V.A.P.C., we affirmed conviction for the possession of growing marihuana in Sparks v. State, 161 Tex.Cr.R. 100, 275 S.W.2d 494. See also Ramirez v. State, 135 Tex.Cr.R. 442, 125 S.W.2d 597, where the same result was reached in a conviction under a prior statute.

In Getters v. State, Tex.Cr.App., 340 S.W.2d 806, we held that no proof was required that the marihuana seed were viable.

The statutes and the authorities cited support the state’s position that the evidence is sufficient to sustain the jury’s finding that appellant unlawfully possessed marihuana, a narcotic drug.

We see no merit in appellant’s remaining contention under which' he would distinguish this case from the Sparks and Ramirez cases by the fact that the marihuana plants found to be possessed by the appellant were growing upon property belonging to Bexar County, the appellant being a naked trespasser. In Ramirez v. State the marihuana was growing on the premises of the defendant. In Sparks v. State the marihuana plants, around which Sparks was digging, were growing on Mrs. McKay’s land. We see no reason to apply a different rule because the County was the owner of the land rather than an individual.

The judgment is affirmed.


text:
    James MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35510.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    Buck C. Miller, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault; the punishment sixty days in jail.

The complaint and information charged appellant with having committed an aggravated assault upon one William R. Gray, with a pistol, the ground of aggravation being that the assault was made with premeditated design and by the use of means calculated to inflict great bodily injury.

Gray, the injured party, testified that he was co-manager with his wife of the North Line Terrace Apartments in the city of Houston. Appellant lived in one of the apartments with his wife and small child. Gray testified that on the night in question, while he was making his usual “rounds” about midnight, he met appellant with his wife and daughter in front of their apartment. Appellant inquired what he was doing there and he answered that he was making his “rounds” and asked appellant why he inquired. Appellant replied that he would show him why, then went inside the apartment, put a package on the table, came outside and “kind of danced along the side of the apartment.” Gray stated that appellant then “whipped” out a pistol which looked like a .45 calibre, six inches long, and struck him across the face with it. He further testified that he was “staggered” and “dazed” from the blow and bleeding profusely and that he went to the Doctors Hospital for emergency first aid treatment. He further stated that he had “a brand new bite now” and that part of his face was paralyzed.

Deputy Sheriff Snow testified that in his opinion a pistol which appeared to be a .45 with a six-inch barrel, when swung and struck against a person’s head, would be calculated as a means to inflict great bodily injury.

Appellant did not testify but called as a witness in his behalf his wife, Mrs. Kathryn Mitchell, who gave her version of the difficulty.

Mrs. Mitchell testified that when she and appellant returned from a grocery store to their apartment on the night in question, Gray, the injured party, was at the front “pounding profusely” on the door. She asked: “ ‘What is the matter with you ?’ ” and Gray, who had been drinking, replied: “ ‘I want to see your husband,’ ” stating that he was there to “straighten out” her husband. Appellant then came around the corner to where they were standing and asked Gray what was the matter. Gray replied: “ T want to see you,’ ” and used abusive language. Appellant then went inside the apartment and Mrs. Mitchell blocked the doorway, saying to Gray: “ ‘You are not coming in here and causing any trouble.’ ” While Gray was at the doorway and she was blocking his entrance, a struggle ensued between them as he started into the apartment. While they were struggling in the doorway, appellant pushed his wife aside and struck Gray with his fist. ,

Appellant also called two of the owners of the apartments, who testified that it was Gray’s wife — and not Gray — who was hired as manager of the projects.

Testimony was also adduced to the effect that the apartment had been rented to appellant by one of the owners, over Gray’s protest, and that on the day appellant moved into the apartment he had some difficulty with Gray’s wife over some keys and cursed her.

In submitting the issue of appellant’s guilt to the jury the court fully instructed the jury on the right of appellant to prevent an intrusion upon the lawful possession of his property and to act in defense of his wife against an unlawful attack being made or about to be made upon her by the injured party.

The jury resolved the disputed issues against appellant, and we find the evidence sufficient to sustain their verdict.

Appellant predicates his appeal upon certain claimed errors in the court’s charge.

No objections were made to the charge but appellant presented certain requested charges to the court which were refused.

Appellant’s first complaint is to the court’s failure to define the term “premeditated design” in the charge. A requested instruction defining the term was presented by appellant to the court, and refused.

The court in his charge instructed the jury as follows:

“You are instructed that in connection with the term ‘premeditated design’ that the premeditation must have existed in the mind of the accused before the time of the said assault, if one was committed.”

It is the state’s contention that the term “premeditated design” is of such common usage and so generally understood that it need not be defined.

With such contention we agree. In the early case of Atkinson v. State, 20 Tex. 522, the Supreme Court of this State in discussing the meaning of the term “premeditated and deliberate killing,” as used in the murder statute, said:

“They are not technical words,, with a defined meaning by the common law. They are familiar words in common use, employed in the statute, not to extend or enlarge the meaning of the words malice aforethought, but to designate a class of offenses * *

In Weatherford v. State, 159 Tex.Cr.R. 278, 263 S.W.2d 166, this court, in declining to pass upon a similar complaint to the trial court’s charge because the exception had not been properly preserved, referred to the term “premeditated design” as one commonly used and accepted.

Appellant further insists that the charge was erroneous because the court failed to instruct the jury that the premeditation must exist in the mind of the accused at the very time of the assault.

Appellant, in his requested instructions, made no request for such an instruction. However, a careful reading of the charge as a whole reflects that the jury were required to find, before convicting appellant, that he was acting with premeditated design at the time of committing the assault. The contention is overruled.

Appellant next contends that the court failed to instruct the jury as to the distinguishing features between aggravated and simple assault. Such contention is based upon the court’s refusal to give appellant’s requested instruction to the jury that if his conduct resulted from rash or sudden impulse it was only a simple assault and if the difficulty between appellant and the injured party was a result of provocation arising at the time, appellant would not b@ guilty of an aggravated assault.

The court in his charge defined simple and aggravated assault in the language of the statute and instructed the jury that if they found appellant guilty of an assault but had a reasonable doubt as to whether such assault was aggravated, to acquit him of aggravated assault and find him guilty of simple assault. Such charge was sufficient. The court’s instruction to the jury with reference to reasonable doubt in favor of defendant—if they had such doubt—as to the degrees of assault, rendered harmless any error in refusing to give the charge requested. Hodges v. State, 73 Tex.Cr.R. 378, 166 S.W. 512, relied upon by appellant is not here controlling, because in that case no instruction was given the jury with reference to any reasonable doubt in favor of the accused. between the two degrees of assault.

Appellant’s remaining complaint is to the court’s failure to give his requested instruction on the right to defend himself against an unlawful attack being committed upon him by the injured party.

Since appellant did not testify, we must look to the testimony of his wife in determining whether the issue of self-defense was raised. We have concluded that her testimony that appellant struck the injured party as she was struggling with him in the doorway did not raise the issue of self-defense but only the issues of whether appellant was acting in defense of his wife or to prevent an intrusion upon the lawful possession of his property, which issues were submitted by the court to the jury.

Such defense not being raised by the evidence, the court did not err in refusing the requested instruction.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    David Sustaita RUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35555.
    Court of Criminal Appeals of Texas.
    March 20, 1963.
    No attorney on appeal for appellant.
    James E. Barlow,, Dist. Atty., James Ernest Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is robbery, with a conviction for an offense of like character alleged for enhancement under Article 62, Vernon’s Ann.P.C.; the punishment, life.

The prior conviction for robbery in De Witt County and appellant’s identity as being the person so convicted was established by the records, fingerprint comparison, and by the testimony of the Honorable Wiley Cheatham, District Attorney, who prosecuted the case.

The injured party Ramirez, a recent arrival in San Antonio, testified that, while at Connie’s Lounge on the night in question and while in the act of paying for some beer, he inadvertently displayed a sum of money which was in his wallet; that appellant and another man who was in his company were customers at the lounge, but Ramirez was unable to positively identify the other man. Ramirez stated that as he left the lounge about closing time a pickup truck passed him as he was walking home, and when he passed a lighted private garage the pickup truck came to a halt in front of him. He stated that appellant and another man got out, came back to him, stuck two long knives into his ribs, and demanded his money; that appellant said, “If you are going to squeal,, it will go bad for you,” at the same time reaching in his pocket and extracting his billfold and the contents. He stated that he went to the house where he was staying a short distance away, locked himself in, and the following morning reported the incident to the police.

Lydia Garcia testified that she was employed at Connie’s Lounge on the night in question; that appellant and one Abraham Sotelo as well as Ramirez were present; that as Ramirez left appellant remarked to her he thought he (Ramirez) had money on his person, and she replied he always did; that as it was then closing time she left, as she had planned, in a pickup truck with appellant and Sotelo; that they saw Ramirez walking, and appellant, who was the driver,, brought the pickup to a halt and he and Sotelo alighted; that she became frightened and drove away. She stated that she later returned to the vicinity, picked up appellant and Sotelo, after which appellant showed her a wallet, said that it belonged to Ramirez, and gave her $20.00.

Appellant did not testify but called his father who testified that appellant was gainfully employed at the time in question and was living with him; however, he was unable to supply an alibi for appellant on the night in question and stated that appellant was not arrested for some five or six days after the offense was alleged to have occurred.

Officer Morin testified that Ramirez reported the matter to him the day after its occurrence and that after some six or seven days of investigation a complaint was filed against appellant and he was arrested.

We find the evidence sufficient to support the conviction.

No bills of exception appear in the record; no brief has been presented; no evidence adduced at the hearing on the motion for a new trial is before us; and no reversible error is reflected by the record.

The judgment is affirmed.


text:
    Mary Louise STOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 35477.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    LeRoy Peavy, Houston, for appellant.

      Frank Briscoe, Dist< Atty., Gus J. Zgourides and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted for the offense of felony theft on April 14, 1960. Her punishment was assessed at two years’ confinement in the penitentiary hut execution of sentence was deferred and she was placed on probation under the Adult Probation laws of this state.

On January 5, 1962, the state, through its district attorney, filed a motion to revoke the probation, alleging therein that appellant had violated the terms and conditions of her probation in that on or about December 10, 1961, she was picked up with, a person of disreputable character for forging money orders; that she failed to report to her probation officer as directed; and that she failed to make restitution as directed. The state set out in its motion that these things required of the appellant to be performed were among the conditions imposed at the time appellant was accorded probation.

On October 5, 1962, after having held a hearing on the state’s motion to revoke appellant’s probation the court found that she had violated the terms of her adult probation previously accorded her, and ordered that the “Sentence herein become now operative.” It is from that order that appellant prosecutes this appeal.

It is appellant’s position that the warrant of arrest must issue and the arrest must be made during the term of the probation assessed in the judgment. Appellant cites Section 5 of Art. 781b (now, Art. 781d, Sec. 8), Vernon’s Ann.C.C.P., and several cases in support of her position.

The mere fact that a motion has been filed during the probation term alleging a violation of the conditions of probation will not authorize revocation after such term has expired. Only the court’s action authorizing the arrest of the probationer, followed by diligent effort to apprehend and hear and determine the claimed violation, can authorize revocation after the probation term has ended.

The order of the court placing appellant on probation prescribes, among other conditions, that she shall — part (i) — “make restitution,” but it does not direct the payment of any sum, on any date, to anyone, as a requirement. Nor does part (d) of the order do more than state that defendant shall “Report to the probation officer as directed.” The order does contain as one of its terms as set forth in part (c) that defendant shall “Avoid persons or place of disreputable or harmful character.”

The probation officer, Charles J. Hearn, by reading from some paper or instrument, testified as to the terms of probation imposed by the judge upon appellant that among the conditions of probation were that appellant “Report to the probation officer as directed,” “Avoid persons or places of disreputable or harmful character,” and “Make restitution or reparation in any sum that the Court shall determine, to-wit $90 to J. M. Lucky at $10 a month, beginning July the 1st, 1960.”

We cannot determine from the record before us what the paper or instrument was that the witness Hearn was reading from.

We have also been unable to find in the order granting probation any requirement that appellant report to the probation officer at any specific time.

We find the evidence insufficient to support the allegation that appellant associated with persons of disreputable character.

It is incumbent upon a trial judge to incorporate in his order granting probation the conditions upon which the accused is probated, so that the accused and the authorities may know with certainty what those conditions are. Glenn v. State, 168 Tex.Cr. R. 312, 327 S.W.2d 763. The conditions imposed by the court in the order granting probation to appellant, upon which the rev-qcation is predicated, do not meet these requirements.

The judgment is reversed and appellant is ordered discharged.


text:
    Pauline SULLIVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 35313.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Rehearing Denied April 3, 1963.
    Robinson, Wilson & Graham by James K. Graham, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for State.
   WOODLEY, Presiding Judge.

The offense is murder; the punishment, 5 years.

The evidence shows that the deceased died as the-result of a stab wound in the chest inflicted by the appellant with a knife.

The homicide occurred at the front of the home of appellant’s mother. The appellant and her child were living there also. She had gone out with the deceased several times and he was among those present at the house from about 4:30 P.M. until the homicide occurred about 11:30 P.M.

No witness testified to having seen the appellant stab the deceased, and the knife was not found.

When an officer arrived and found the dead man he inquired of those present if they had seen or heard anything that went on outside. The appellant “ * * * said she didn’t know what happened; hadn’t heard anything either.” When the officer said the man was dead, the appellant fainted. When she came to the officer asked the appellant if she stabbed him. She said “Yes, but I didn’t mean to hurt him. * * * I just slapped at him with that knife.”

All of the evidence shows that there was no trouble until about 11:30 P.M., at which time the appellant made known that she wanted the deceased to leave.

A witness for the state testified that the appellant told him to get out of the house, in language that need not be stated here, and he started backing out with his hands raised saying “Okay”, and she was hitting him as he was just off the porch.

Another witness for the state testified that the appellant was trying to put the deceased out of the yard and she heard her say “Get out. I done asked you to get out and I mean for you to get out. Get out of my mother’s yard.” A lick was heard and shortly thereafter the deceased asked to be taken to the hospital.

The appellant testified, and her voluntary statement or confession was introduced in evidence.

She testified that the deceased wanted her to go out with him, and she didn’t want to go; that she asked him to go home and leave her alone, but he just stayed around and continued to try to get her to go with him and she kept saying “No”; that he was drinking; had drunk some wine and some beer that day.

She testified that about two weeks before the killing she told the deceased she didn’t want to go with him because she didn’t want any trouble from his wife, Nate, at which time deceased told her “ * * * he wasn’t going to stand no quitting.” She further testified that about noon on the day of the homicide she saw deceased hit his wife and knock her down three times.

Appellant’s version of the killing was that the deceased pulled her out the door on to the porch, saying he wanted to talk to her; that he asked her why she didn’t want to go “and so he snatched me off the porch, * * * he had me by the right hand and he jerked me off the porch * * when she was “just a little piece from the porch,” he slapped her; “He just hit me up the side of the head real hard with his hand * * * it made my ears ring on the inside. * * *

“Q. And, at that time, did he still have ahold of your right arm?
“A. Yes, sir.
“Q. And what did you do at that time?
“A. Well, I just went and got my knife and hit at him like that. (Indicating)
“Q. All right. Now, when you reached and got your knife, where was that knife?
“A. I had it laying up against my breast * * * at the edge of the top of the brassierer * * *
“Q. All right. And how long was it from the time he hit you until you hit at him with the knife?
* * *
“A. Well, it wasn’t much longer after he hit me.”

Appellant further testified that she had no intent to kill or hurt the deceased; that she was hitting at him with the knife because she was scared; “I was scared he may beat me up like he did Nate. Scared he would beat me. * * * I just didn’t want him to hit me anymore.”

Two grounds are urged for reversal, both of which relate to the court’s charg£.

The first point is “The trial court erred in limiting appellant’s right of self-defense to a situation where she had no intent to kill.”

The court properly stated the law of self-defense against an unlawful attack giving rise to a reasonable apprehension of death or serious bodily injury.

The objection was addressed to the paragraph of the charge applying the law of self-defense wherein the court charged: “ * * * if you believe that, acting upon such reasonable appearance of danger or fear of death or serious bodily — , if any, at the hands of the said Walter Lee Moring', the Defendant, Pauline Sullivan, reached into her blouse and pulled out a knife, and without any intent to kill the said Walter Lee Moring, cut the said Walter Lee Mol-ing, with a knife, from which he died, or, if you have a reasonable doubt thereof, you will find the Defendant Not Guilty of any Offense.”

The second contention is “The trial court erred in refusing to charge the jury on appellant’s affirmative defense of relieving herself from illegal restraint.”

Assuming that the questions are properly before us, these complaints as to the charge, if valid, do not call for reversal of the conviction unless the error' in the charge was calculated to injure the rights of the defendant, or deprive her of a fair and impartial trial. Art. 666 C.C.P.

We are in accord with the holdings in Vinson v. State, 55 Tex.Cr.R. 490, 117 S.W. 846, and Manis v. State, 41 Tex.Cr.R. 614, 58 S.W. 81, cited by appellant, which are to the effect that intent to kill or formed design to kill does not foreclose the right of self-defense against an assault threatening death or serious bodily injury.

The appellant repeatedly denied any intent to kill or harm the deceased. Although she did not claim fear of death or serious bodily injury, it was upon the appellant’s testimony alone that the issue of self-defense was submitted.

The court tracked the defendant s version of the killing in the instruction first complained of. In view of her testimony, the error was not such as to call for reversal. Art. 666 C.C.P.

The second complaint cannot be sustained because the evidence did not raise the issue. The appellant did not testify that she stabbed the deceased in order to free herself from his hold upon her arm and there was no testimony from other sources raising such issue. Matterson v. State, 142 Tex.Cr.R. 250, 152 S.W.2d 352, cited by appellant, has no application under these facts,

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

The judgment is affirmed.


author: HUGHES, Justice.

text:
    G. H. SPURLOCK et ux., Appellants, v. Naomi BURNETTE et vir, Appellees.
    No. 11056.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1963.

      Frank D. Kerbow, Austin, for appellants.
    Brown, Sparks & Erwin, Austin, for ap-pellees.
   HUGHES, Justice.

This is a suit for damages resulting from the collision of a 1956 Cadillac sedan driven by Appellant Mrs. Pauline Spurlock and a 1959 Chevrolet driven by Mrs. Naomi Burn-ette. The collision occurred about 5:30 p. m., February 9, 1961, at the intersection of West Forest Drive and U. S. Highway 290, known locally as the Fredericksburg Road. The Highway, at this point, runs in a general east-west direction. West Forest Drive intersects Highway 290 from the south and a STOP sign placed about ten feet back from the Highway on West Forest Drive requires southbound traffic on this street to stop before entering the Highway. The Highway, at this point, was outside the city limits of Austin, but the STOP sign was inside the city.

At the time of the collision, the weather was clear and the streets were in good condition.

Mrs. Burnette was driving south on West Forest Drive and Mrs. Spurlock was driving west on U. S. Highway 290 just prior to the collision. Both ladies were alone in their cars. There were no known eye witnesses to the collision other than the drivers of the cars. They each testified to the careful manner in which the car driven by her was being operated immediately before the collision.

Mrs. Spurlock’s version of the occurrence is that she was driving at a speed of 35 or 40 miles per hour, the legal speed being 60 or 55 miles per hour. She was keeping a proper lookout and observed a car, Appel-lees’, stopped at the STOP sign on West Forest Drive. The next thing Mrs. Spur-lock knew Appellees’ car was in front of her and, although she quickly applied her brakes, she ran into it.

Mrs. Burnette’s version of the occurrence was that being thoroughly aware of the STOP sign since she lived within three blocks of it and observed it frequently, she approached the STOP sign, intending to stop, but that when she applied her brakes, about 5(y from the sign, the brakes failed and the car went out into the Highway where the Spurlock car struck it.

The evidence shows that the Burnettes did not know and had no reason to know or suspect that the brakes on their car were ■faulty or defective. The évidence also shows, from witnesses other than the parties, that the brake fluid had leaked from the Burnette car as it approached the Highway on this occasion.

Trial was to a jury which exonerated both parties of negligence and found that the collision was the result of an unavoidable accident.

In Appellants’ Motion for a new trial the only errors assigned are that certain jury findings are “without any support in the evidence and is (are) against the un-contradicted testimony.” These are “no evidence” assignments. We are confined to the' assignments made and cannot enlarge them so as to embrace, as Appellants do in the points in their brief, the ground that the •findings of the jury are against the overwhelming weight of the evidence. Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379.

The jury found: Mrs. Burnette did not fail to keep a proper lookout; that her fail.ure to yield the right of way to Mrs. Spur-lock was not negligence; that her failure to sound the horn immediately prior to the collision was not negligence; that her failure to turn her car to the right immediately before the collision was not negligence; and that the collision was the result of an unavoidable accident.

It is these findings that Appellants say have no evidence to support them.

Regarding the lookout kept by Mrs. Bur-nette, she testified:

Well, Mrs. Burnette, did you see the car approaching you? a
No, I certainly didn’t. <;
You'didn’t see it approaching? at
I was so frantic, I didn’t know what I was doing. <;
Because your brakes were out? pi
Yes, sir, I didn’t have any brakes. <
“Q And do you recall whether or not you looked to your right or to your left?
“A I had no reason to, I was so' frantic, I was just scared to death.
“Q You had you hands—you were-fully occupied trying to get your car stopped?
“A I certainly was.”

The question is whether Mrs. Burnette-kept a “proper lookout.” This term was defined in the charge as “such a lookout as a-, person of ordinary prudence in the exercise of ordinary care would have kept under the-same or similar circumstances.”

As Mrs. Burnette approached the STOP' sign it was of little concern to her that Mrs. Spurlock’s car was nearing the intersection: or that other traffic on the Highway was. .or was not present. Her duty was to stop., regardless of the existence of traffic on the Highway. This Mrs. Burnette intended to-do and would have done but for the failure-of the car brakes. The fact that Mrs.. Burnette did not see the Spurlock car is not conclusive evidence that she was not keeping a proper lookout under the circumstances then existing. The time lapse between the frightening brake failure and the-collision was so short as to make Mrs. Bur-nette’s conduct during this period a matter for jury appraisal.

It is our opinion that the jury finding that Mrs. Burnette did not fail to keep-a proper lookout is supported by evidence. See Beckham v. Herrin Transportation Co., 344 S.W.2d 953, Houston Civil Appeals, and Dudley v. Carlson, 273 S.W.2d 918, writ; ref., n. r. e., Austin Civil Appeals.

Mrs. Burnette did not yield the right-of way to Mrs. Spurlock; neither did she-sound her horn. These acts, or failures to-act, were found by the jury not to constitute-negligence. This term was defined in the-charge in the usual manner and is gauged by the conduct of the ordinarily prudent man, under the same or similar circumstances. The jury necessarily and very wisely has a wide range of discretion in determining what conduct is or is not negligent. We believe the circumstances of this case are such that the jury findings of no negligence are well within the latitude of the jury’s prerogatives. The violation of penal statutes, if reasonably excused, is not negligence as a matter of law. Cunningham v. Suggs, 340 S.W.2d 369, Eastland Civil Appeals, writ ref., n. r. e.; Phoenix Refining Co. v. Powell, 251 S.W.2d 892, San Antonio Civil Appeals, writ ref., n. r. e.

Having disposed of all of Appellants’ points properly before us and finding no error, we affirm the judgment of the Trial Court.

Affirmed.

      . The respective husbands, G. H. Spurlock and Herbert F. Burnette, were parties.


author: BARROW, Justice.

text:
    OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellant, v. Mills KING, Appellee.
    No. 14057.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearings Denied March 20, 1963.
    Clemens, Knight, Weiss & Spencer, F. N. Welmaker, San Antonio, for appellant.
    Groce & Hebdon, Charles L. Smith, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from a take-nothing judgment entered on appellee’s motion for summary judgment. Appellant, Occidental Life Insurance Company of California, hereinafter referred to as Occidental, filed suit within the two-year contestable period to cancel a $500.00 deductible major medical expense insurance policy issued to ap-pellee, Mills King, and for return of benefits already paid under this policy. Occidental alleged that the written application for the policy contained a false answer to the question of other insurance owned by King and that this false answer was made willfully, with intent to induce Occidental to issue the policy and was therefore material. King denied that the answer was false, and, in the alternative, alleged that the question was subject to two or more constructions. Both parties filed motions for summary judgment and, after a hearing, the trial-court granted King’s motion.

The motions were based upon depositions of Mr. and Mrs. King, and the deposition of Frank J. Hynes, Occidental’s agent who sold the policy in question. Occidental also filed an affidavit of the Assistant Manager of its San Antonio office. There are some matters not in dispute. Prior to March, 1960, Mr. and Mrs. King had a policy with Mutual Benefit Health & Accident Ass’n of Omaha, which provided for small medical benefits, among these, it paid $5.00 per day for up to 30 days hospitalization. In response to Mutual’s inquiry, Mrs. King sent a card on which she indicated an interest in more hospitalization insurance. This “lead” was given to Hynes who contacted her several weeks before the application in question was completed. He discussed several policies with her, and she also talked to other agents. About March 10, 1960, Mrs. King advised Hynes that she and Mr. King desired to purchase the Occidental policy, and he went to their house to complete the application. Hynes filled out the application form by asking Mrs. King the questions. Mr. King was not present. Question No. 14, reads as follows: “In what companies and amounts do you or any proposed members have hospital, medical or surgical expense insurance?” The answer as completed is “None.” After completing this form, Hynes took the application to the office of Mr. King, who signed it and gave Hynes a check for the first year’s premium. The application form included a representation that the answers were true and correct to the best of applicant’s knowledge and belief. In March, 1961, the policy was renewed by payment of the annual premium. On April 13, 1961, King sustained an accidental injury requiring hospitalization. He filed a claim with Occidental under this policy and in the claim form set out that he had other accident insurance with General American Life Ins. Co. Occidental paid substantial sums under its policy, and then filed this suit. The General American policy had medical benefits which permitted King to recover double benefits on part of his medical expenses from the April, 1961, accident.

There are other facts in the record which are either disputed or which, by reason or their being testified to solely by an interested party, cannot be taken as established. Mrs. King testified that Hynes told her, in connection with her answering Question No. 14, that the Mutual policy was “piddling and immaterial.” Mrs. King testified that she did not think that the General American policy was included, as it was an “accident” policy for her husband only. She further testified that she thought she was answering the questions truthfully and had no intent to deceive. Mr. King testified that he had forgotten about the General American policy which he had taken out in 1950, and that he did not recall increasing the limits of this policy in 1958. King testified that he had no intent to misrepresent his coverage on the application, and that it was a bona fide mistake.

Occidental’s officer, in his affidavit, stated that the General American policy should have been set forth in answer to Question No. 14, and that the double coverage made King over-insured. Occidentals manual contained instructions not to issue a major medical policy where the applicant was over-insured and specifically where the applicant had over $1,000.00 hospitalization insurance. Hynes admitted that he did not explain Question No. 14, i. e., he made no inquiry as to King’s automobile or house policies which included medical benefits, although he admitted that most people in King’s financial circumstances had such coverage.

In their briefs, both parties refer to the answer to Question No. 14 as a representation. Thus, the rule to be applied is stated in Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, as follows:

"It is also well settled in this State that to avoid a policy of insurance because of misrepresentations, the burden is on the insurer to plead and prove, not only that the answers made by the insured were false or untrue, but that the insured knew, or should have known, that they were untrue, and that he made them willfully and with the intention of inducing the insurer to issue him a policy.”

Furthermore, Art. 21.16, V.A.T.S. Insurance Code, provides that regardless of the policy provisions, in order to render a policy void because of false answers in an application, it must be shown upon trial that the misrepresentation was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and that whether it was material and so contributed shall be a question of fact. See also, Trinity Reserve Life Ins. Co. v. Hicks, Tex.Civ.App., 297 S.W.2d 345, no writ history.

We cannot say from the record made in this summary judgment proceeding that these matters are established for either party as a matter of law. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

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


author: MASSEY, Chief Justice.

text:
    William Andrew PANNELL, d/b/a Jack Panneli Realty Co., et al., Appellants, v. Jonnie Davis ASHWORTH, Appellee.
    No. 16389.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1963.

      Ben L. Adams, Jr., Houston, for appellants.
    Bernard Kay, Houston, for appellee.
   MASSEY, Chief Justice.

The appeal is from a judgment for plaintiff awarding damages because of defendant’s breach of contract to sell (or to contract to sell) plaintiff’s realty for the sum of $17,500.00. A sale was made for $14,-025.00.

Whether the sale was to be made at not less than a price of $17,500.00 was not a question. The single special issue submitted read as follows: “Do you find from a preponderance of the evidence that the Plaintiff had knowledge of the terms of the sale for $14,025.00 before July 22, 1960, the date upon which she signed the deed?”. The jury’s answer was “we do not”. By the form of submission it is apparent that it was what is commonly called “a defendant’s issue”, with the burden placed upon the defendant. There was no objection to the form of the issue or its submission.

Defendant did present and request the submission of the following special issue. “Do you find from a preponderance of the evidence that the Plaintiff, Jonnie Davis Ashworth, knew or should have known that the sale price of the property in question was $14,025.00 before she signed the deed?”. The court refused to submit the issue. Defendant contends this was reversible error.

By the time the case was submitted to the jury plaintiff obviously had elected to stand on the proposition that defendant’s act in contracting to sell plaintiff’s property at a price below that authorized constituted a breach of contract. Plaintiff’s subsequent execution of the deed in the belief that such action was upon a contract to sell at the price of $17,500.00 had no effect upon the question of defendant’s liability, but served only to establish the damages to which she was entitled because of the breach. Indisputably, defendant could escape liability only in the event it could be shown that plaintiff, in executing the deed and delivering the property, had knowledge of the material fact., i. e., that the price to be received was $14,025.00.

Actually we do not believe the requested issue was raised. The question was raised as to whether plaintiff, in the exercise of ordinary care, should have known that the price was $14,025.00. But this would not be a pertinent issue in an instance such as this, even had plaintiff’s lack of knowledge been the result of her own carelessness in inquiring or her neglect to ascertain the facts. See 3 American Jurisprudence 2d, p. 559, “Agency”, sec. 173, “Knowledge of material facts”. Even in those jurisdictions where a modification of the rule is recognized a principal must have actual knowledge of the facts which-would put him on inquiry. Such a defense would not be available against an ignorant principal who is unaware of his ignorance, and this is the situation in the instant case. The requested issue was properly refused.

Defendant could avoid liability only by raising the question as an issue and prevailing upon the jury to find that plaintiff did have knowledge that she was selling her property at the lower figure rather than at the figure contracted between defendant and herself. In this defendant failed.

Defendant also complains because certain evidence was excluded concerning an agency relationship with the man who was plaintiff’s husband at time of the transaction. The property was the separate property of plaintiff. The evidence defendant desired was not made a part of the record before us. We fail to understand how the fact of any such agency relationship could have benefited defendant. The point of error is overruled.

Judgment is affirmed.