text:
    DE BLANC v. STATE.
    No. 13991.
    Court of Criminal Appeals of Texas.
    April 8, 1931.

      Shelton & Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is theft; penalty assessed at confinement in the penitentiary, for a period of five years.

The appellant was a bank messenger. He wore a uniform identifying him as a messenger of the Texas Bank & Trust Company. The Texas Bank & Trust Company had an account-at the Austin National Bank, both of which were situated in Austin, Tex., and had mutual business transactions. It was customary to transfer money from one bank to the other by the bank messenger. The appellant had acted in the capacity mentioned for a long time. On the 31st day of December, 1929, he entered the Austin National Bank and applied to the note teller for $5,000. The money was delivered to him and he signed what was termed a “debit slip,” of which the following is a copy:

Debit Austin, Texas, 12 — 31 1929 Texas Bk & Trust Co. £ § o ot PQ Ph 53 r-* ⅛ o o o ⅞ 103 2 000— 53 3 000— 5 000— H. De Blanc.'

Touching the custom of the banks with reference to debits in connection with the matter,' the following is taken from the testimony: “We did not charge that against the Texas Bank & Trust Company. The slips go through the clearing house and are handled the same as if somebody else checks on the Texas Bank & Trust Company. We would have gotten our money in clearing house settlement. We get a settlement at 11:00 o’clock every morning, the difference between their cheeks and ours. They would either give us a check on one of their correspondent banks, or we would give them one.”

The appellant was not authorized or directed by the Texas Bank & Trust Company to get the money from the Austin National Bank, and he did not deliver the money to the Texas Bank & Trust Company.

The debit slip mentioned above was never honored. The Austin National Bank delivered the money to the appellant under the circumstances detailed above, to be delivered by him to the Texas Bank & Trust Company agreeable to the custom applicable to debit slips such as above described.

In Segal’s Case, 98 Tex. Cr. R. 485, 265 S. W. 911, 35 A. L. R. 1331, it appeared that the accused purchased goods on credit. It was contended upon the trial that Segal, having at the time he bought the goods no intent to pay for them, characterized him as guilty of the offense of theft. This theory was rejected by the court upon the ground that the owner of the goods had the intention at the time of parting with both title to and possession of his goods.

In the present instance, the appellant invokes the principle mentioned and maintains that his offense is not theft for the reason that, the Austin National Bank intended to part with both possession of and title to the $5,000.

Many of the cases cited and discussed in Segal’s Case, supra, are illustrative of the fact that whether it was the intent of the owner to part with the possession only or possession and title is the basis of the distinction between the offense of theft and swindling. They, however, also illustrate the point that such intent is not the sole distinction. For example, the false pretext which results in the delivery of the property may embrace, not only the false representation of a past event, but a condition subsequent. Pertinent cases are the following:

In the case of Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85, the facts were, in substance, as follows: Sims owned two hogs'. Anderson proposed to buy them. Sims consented to sell them at $7 a piece, and at that price an agreement was made with Sims to sell and Anderson to buy the hogs. Anderson offered to pay Sims if he would deliver the hogs at the home of Anderson. Sims declined, but referred him to Kellum, and, in consideration of $1 to be paid by Anderson, Kel-lum removed the hogs to Anderson’s home. Anderson, represented at the time of the purchase that he had the money at his home. Sims' demanded cash and said he needed the money to pay a note and would not sell on credit. When the hogs reached Anderson’s home, Sims demanded his money and Anderson refused to pay it. Upon these facts Anderson was held guilty of theft by false pretext. It is to be noted that Sims parted with the possession of his hogs with the intent to vest in Anderson the title also. However, such intent was based uppn Anderson’s representation that he had the money at his home which would be delivered to Sims upon reaching Anderson’s home. Upon this misrepresentation of fact that he had the money at his home and the assurance that it would be paid upon the delivery of the hogs, Sims permitted Anderson to take possession of the hogs, but upon the facts, including the falsity of Andersoffs representation that he had the money to pay for the hogs upon their delivery and would do so, the conviction of Anderson for theft by false pretext was sustained.

In the case of Hedge v. State, 89 Tex. Cr. R. 236, 229 S. W. 862, 864, 14 A. L. R. 889, the facts were as follows: Watkins owed Hedge $636.79, and by mistake delivered to him a check for $1,061, which was $424.21 in excess of the indebtedness of Watkins to Hedge. The conviction of’ Hedge for the offense of theft was sustained by this court in a comprehensive opinion by Judge Latti-more, in which it was said: “If appellant received the check in question, knowing at the time that it represented a larger amount than was due him, and intended at the time of its reception to appropriate to his own use such amount as might be in excess of what was his, and did so appropriate it, his action would be theft.”

The Theft Statute (article 1413, P. 0. 1925) reads as follows: “The taking must be wrongful, so that if the property came into the possession of the person.accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

Article 1545, P. 0. 1925, defining swindling reads thus: “‘Swindling’ is the-acquisition of any personal or movable property, money or instrument of writing conveying or securing a valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the party justly entitled to the same.”

Article 1549, P. C., is as follows: “Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in.such manner as to come within the meaning of theft or some other offense the rules herein prescribed with regard to swindling shall not be understood to take any such case out of the ‘ operation of the law which defines any such other offense.”

The facts in the case of Anderson v. State, supra, as well as the reason of the court in affirming the judgment, are illustrative of the point, which seems to have been overlooked in some of the decisions of this court, that, where the facts are such as would warrant a prosecution upon either swindling or theft, the indictment should be for theft. The prosecution should be for swindling only in cases in which the facts would not sustain a conviction for theft, or a conviction under some other provision of the Penal Code penalizing the fraudulent acquisition of property. In the case under discussion, the following remarks are made: “If, however, the facts in this case should be held to constitute swindling under article 1421, yet it cannot be gainsaid that the facts would authorize a jury to find that the possession of the hogs was obtained by fraudulent pretext, with the intent to deprive the owner of their value, and with the intent to appropriate the property to his own use and benefit, and under such circumstances he would also be guilty of theft by fraudulent pretext.” Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85, 88.

The decision of this court in the case of Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908, seems authority for the proposition that, where the property obtained upon false pretext is money which the criminal at the time intends to steal, but which the owner' parts with on the belief that 'the money will be used in converting it into a larger sum of money by a represented investment which the criminal had no intention of making, the offense is theft by false pretext. The opinion of this court written by Judge Lattimore, with the concurrence in the result by the other members of the court, is an interesting history of the transaction, which is summarized as follows: The appellant represented that she had a secret connection with a particular oil driller from whom she would receive inside information about wells which were drilling before they were completed, which information would enable her to double and treble the money turned over to her to be invested in such a venture. Upon such representation the appellant received from Dora Wilson a large sum of money. After the first transaction, the appellant represented to Miss Wilson that her investment had largely increased her funds, and upon such representation acquired from Miss Wilson an additional sum of money to be dealt with in the same manner as above described, and, as an assurance to Miss Wilson against the loss of her money, the appellant executed a note in favor of Miss Wilson for the money received. The note was not paid and was never intended to be paid, so the jury found. The appellant absconded without making restitution of any of the money.

Announcement of the legal effect, on the appeal, which would have resulted from proof that the intent of the owner of the money was to vest title thereof in the Texas Bank & Trust Company does not seem necessary. There is no specific proof that such was the intention. The evidence may support the inference that, while the owner expected a return of its money on the following morning, it was not essential that it should receive the identical bills which were delivered to the accused. Even if it were established as a fact that in parting with the money it was not the expectation of the owner to have returned to it the identical bills delivered, but merely the equivalent of the bills, it would not, in the judgment of the writer, be fatal to the conviction. This view is supported by the cases cited above, notably Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85; Rundell v. State, 90 Tex. Cr. R. 410, 235 S. W. 908; Diguowitty v. State, 17 Tex. 521, 67 Am. Dec. 670; Hawkins v. State, 58 Tex. Cr. R. 408, 126 S. W. 268, 137 Am. St. Rep. 970, to which may be added G-lascow v. State, 50 Tex. Cr. R. 635, 100 S. W. 933.

The soundness of the criticism of the indictment upon the ground that it fails to name the agent of the corporation is met, we think, by many of the decisions of this court to the effect that an indictment naming the corporation is sufficient. Among the eases so holding are Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928; Modica v. State, 94 Tex. Cr. R. 403, 251 S. W. 1049; Houghton v. State (Tex. Cr. App.) 32 S.W.(2d) 837.

There was no reason for calling upon the jury in the charge of the court to determine whether any of the other officers or employees of the bank consented to part with the money in question. The person to whom the representations were made and who delivered the money described the transaction. Some of the other officers of the bank described the workings of the institution. All of the testimony, so far as it was developed, enforces the conclusion that the appellant’s false representations to the teller who delivered the money were the sole cause of its going into his possession. The case of Cantrell v. State, 105 Tex. Cr. R. 560, 289 S. W. 406, and others cited by the appellant, are not deemed relevant.

In Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670, the accused had executed a written obligation to pay money to Erancis. After Erancis died, Dignowitty said to Mrs. Eran-cis that he would like to see the contract. She produced the paper and delivered it to Dignowitty, who put it into the fire and it was burned up. The conviction for theft of the bond was sustained.

In Hawkins’ Case, 58 Tex. Cr. R. 408, 126 S. W. 268, 137 Am. St. Rep. 970, the accused represented that he could buy whisky. This statement was made to Terna, who acted upon it and delivered to Hawkins a dollar which Hawkins received with the avowed purpose of buying for Terna a bottle of whis-ky. Hawkins appropriated the dollar to his own use and was convicted of theft. The delivery of the dollar to Hawkins was induced by his false statement that he knew of whis-ky for sale and would use the dollar in buying whisky for Terna. In parting with the dollar Terna did not vest the title in Hawkins, but gave it to Hawkins that he might use it for the benefit of Terna as had been represented. Tema did not expect the return of the dollar.

In Ruling Case Law, vol. 17, p. 13, upon the citation of many precedents, the following statement is made: “If a person, with a preconceived design to appropriate property to his own use, obtains possession of it by means of fraud or trickery, the taking under such circumstances amounts to larceny, because in such eases the fraud vitiates the transaction, and the owner is still deemed to retain a constructive possession of the property, and the conversion of it is a sufficient trespass, or, as is sometimes said, the fraud or trick practiced on the owner is equivalent to a trespass.”

That in the present case the appellant acquired possession of the money by means of false pretense with the intention at the time to appropriate the money to his own use and deprive the owner of its value is manifest from the evidence and the finding of the jury. It is obvious that the owner did not intend to vest the title to the property in the appellant. There was no contract of bailment between the owner and the appellant. His representation was to the effect "that he had a right to receive the money for the Texas Bank & Trust Company. His pretense that he had a right to receive the money, and his implied assurance that he would not appropriate it to his own use, are likewise false, and were fraudulently made to deceive the owner and had that effect. We find in the evidence no basis for a charge to the jury that the title to the money passed to the accused. See Modica v. State, supra.

The query . on cross-examination of the witness Turner, the teller of the Austin National Bank who delivered the money to the appellant, whether the title to the money passed to the Texas Bank & Trust Company when delivered to the defendant, was calling for a legal- conclusion, and its exclusion was not error. The ownership of the property was a question of law to be derived from the proven facts. See Howard v. State, 77 Tex. Cr. R. 185, 178 S. W. 506.

The several bills of exception, as well as the special charges requested, have been carefully examined and considered in the light of the record, also the able brief prepared by the appellant’s counsel. A discussion of them in detail is pretermitted, as the remarks above made are deemed sufficient to express the views of the court on all matters presented:

The judgment is affirmed.


source: Caselaw Access Project

author: LATTIMORE, J.'

license: Public Domain

text:
    SNOWDEN v. STATE.
    No. 14132.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    H. C. Keen, of Beaumont, for appellant.
    Lloyd -W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.'

Conviction for robbery; punishment, ten years in the’ penitentiary.

The record is here without statement of facts or bills of exception. The indictment appears in all things regular, and is followed by the charge of the court and the judgment. However, we note in the sentence that same fails to accord to appellant the benefit of the Indeterminate Sentence Law (Code Cr. Proc. 1925, art. 775). He was sentenced for a term of ten years. The sentence will be reformed so as to direct that appellant shall be confined in the penitentiary for a period of not less than five nor more then ten years, in accordance with the indeterminate sentence law.

As reformed, the judgment will be affirmed.


author: CHRISTIAN, J.

text:
    SALAMY v. STATE.
    No. 13705.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    State’s Rehearing Denied April 22, 1931.

      F. H. McGregor, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is negligent homicide of the second degree; the punishment, a fine of $500.

Appellant made a motion to quash the indictment on the ground that it charged no offense; the specific objection now urged being that negligence was not alleged. An inspection of the indictment discloses that the pleader contented himself with charging that appellant was in the performance of an unlawful act; that is, that he was driving an automobile in excess of 20 miles per hour on a street within an incorporated city. Nowhere in the indictment is it charged that there was negligence and carelessness on the part of appellant.

Article 1231, Penal Code, defines negligent homicide in the first degree as follows: “Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action.

Article 1239 of the Penal Code provides: “Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.”

An unlawful act is defined in article 1210, Penal Code, as follows:

“1. Such acts as by the penal law are called misdemeanors; and
“2. Such acts, not being penal offenses, as would give just occasion for a civil action.”

Article 1238, Penal Code, reads as follows: “The definitions, rules and provisions of the preceding articles of this chapter, with respect to negligent homicide of the first degree, apply also to the offense of negligent homicide of the second degree, or such as is committed in the prosecution of an unlawful act, except when contrary to the following provisions.”

In Flynn v. State, 43 Tex. Cr. R. 407, 66 S. W. 551, Judge Henderson, speaking for the court, said: “Our statute defines negligent homicide of the second degree as a homicide committed by negligence of the party doing it, while such party was in the performance of an unlawful act, the same being within the category of misdemeanors, or, such act not being a penal offense, would give just occasion for a civil action. It also provides that the homicide must be the consequence of the act done or attempted to be done, and there must be no apparent intention to kill.”

In Van Arsdale v. State, 94 Tex. Cr. R. 169, 249 S. W. 863, 864, Judge Lattimore used language as follows: “The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the act of appellant; that such homicide resulted from his carelessness and negligence; the apparent danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act.”

In Harr v. State, 98 Tex. Cr. R. 1, 263 S. W. 1055, 1056, Judge Lattimore, speaking for the court, used this language: “Four counts were submitted to the jury, each charging negligent homicide in the second degree; that is, homicide by negligence in the performance of an unlawful act.”

Form No. 508, Willson’s Texas Criminal Forms (4th Ed.), in charging negligent homicide of the second degree, includes an allegation of negligence and carelessness. It appears from the statute and decisions construing it .that the homicide must have resulted from the negligence and carelessness of the accused. It would follow that the indictment is insufficient in failing to set forth one of the statutory ingredients of the offense.

Appellant testified in his own behalf. The following charge of the court was timely. and properly objected to: “The court charges and instructs the jury that they are the sole judges of the facts in the case and the weight and credibility of the testimony given by any witness, either for the state or defense, and that they may take into consideration their interests, surroundings, or any other fact which would influence said witness in giving such testimony, either for the state or for the defense.”

In Harrell v. State, 37 Tex. Cr. R. 612, 40 S. W. 799, a charge in substantially the same language as the foregoing was condemned by this court as being upon the weight of the evidence. Again, in Shields v. State, 39 Tex. Cr. R. 13, 44 S. W. 844, the charge was condemned ; attention being called to the fact that when the accused testifies in his own behalf, the giving of the charge is reversible error.

Appellant contends that the proof is insufficient to establish the allegation that the automobile was operated on Main street in an incorporated city, to wit, Borger. We have some doubt as to the sufficiency of the proof to establish this allegation. However, in view of the fact that the case must be reversed, we pretermit a discussion of the question.

The judgment is reversed, and the prosecution ordered dismissed.

PER CURIAM.

Tlie foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

The state has filed a motion for rehearing in which it is urged that our original opinion holding the indictment bad is incorrect. Negligence in the performance of an unlawful act is án element of the offense of negligent homicide of the second degree. If the indictment avers that the killing occurred while the accused was engaged in the commission of a misdemeanor, omitting any averment of negligence in connection therewith, we do not think it sound to say that the statutory element -of negligence can be inferentially read into the indictment. In addition to authorities cited in our original opinion we also refer to Haynes v. State, 88 Tex. Cr. R. 42, 224 S. W. 1100. In drawing indictments, the safer practice always is to follow approved precedents. Allen v. State, 97 Tex. Cr. R. 467, 262 S. W. 602.

The motion for rehearing is overruled.


author: MORROW, P. J.

text:
    DUNCAN v. STATE.
    No. 14142.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    H. Otto Studer and Curtis Douglass, both of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for fishing with artificial bait in the fresh waters of the state; penalty . assessed at a fine of $25.

In the information it is charged that the appellant “did then and there unlawfully fish with artificial bait in fresh waters of this State, to-wit, Graham .Creek, in Wheeler County, Texas, during the month of April, 1929, to-wit, on the 21st day of April, A. D., 1929.”

In article 951, P. C. 1925, it is made unlawful to fish with artificial bait of any kind in the fresh waters of this state during the months of March and April. In the statute it is said further: “This article shall not apply to any artificial lake, pond or pool, owned by any person, firm, corporation, city or town, that does not have as its source of water supply a river or creek or is not subject to overflow from a river or creek.”

The sufficiency of the information is attacked upon several grounds. Apparently it is defective in failing, by averment, to show that the place where the fishing is alleged to have been done was not within the exception quoted abpve contained in the statute. See Branch’s Ann. Tex. P. C. § 510, and cases collated, among them Keith v. State, 58 Tex. Cr. R. 418, 126 S. W. 569; State v. Duke, 42 Tex. 455.

The testimony of the sole prosecuting witness was to the effect that, using field glasses, he saw the appellant fishing. From his testimony we quote: “I could not tell what he was fishing with, hut I saw something bright gleam and shine in the air as he cast his line into the water. I took this bright article that was on his line to be a spinner. I then went down to where the defendant was. ⅜ * * At the time I arrested him, I did not see any spinner on his line, nor did I look or examine his person. I saw a box of fishing tackle sitting there in his car but did not examine it. * |⅜ * I cannot positively swear that it was a spinner which I saw the defendant using. * * * I was not close enough to positively identify it. In my opinion, I took it to be a spinner. * * ⅜ I did not examine the defendant to ascertain whether or not he had a spinner on or about his person.”

Appellant testified that he was fishing with worms in Simms Lake and did not use a spinner ; that he had never used artificial bait in the lake mentioned. Moreover, the proof is wanting that the fishing was in Graham creek, which was one of the specific aver-ments of the information.

We think the evidence is not sufficient to support the verdict.

The judgment is reversed, and the prosecution ordered dismissed.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    CATES v. STATE.
    No. 13301.
    Court of Criminal Appeals of Texas.
    April 30, 1930.
    Rehearing Withdrawn May 28, 1930.
    A M. Wolford, of McKinney, for appellant.
    J. E. Abernathy, Co. Atty., of McKinney, and A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder; the punishment confinement in the penitentiary for two years.

The evidence is sufficient to support the finding that appellant made an assault upon Maggie Murphree with the intent to murder her. The state offered in evidence appellant’s confession, which was to the effect that he shot the injured party with a pistol because she had left his home and married another man. It appears that appellant and the injured party had lived in the same house, although they were not married.

It was charged in the indictment that appellant “did then and there unlawfully and voluntarily make an assault in and upon Maggie Murphree with the intent to then and there murder the said Maggie Murphree.” Appellant moved to quash the indictment on the ground that it was not alleged that the assault was made with malice aforethought. The motion to quash was properly overruled. We quote from Tucker v. State (Tex. Cr. App.) 26 S.W.(2d) 638, as follows:

“Murder is now defined by our statute * * * to be the voluntary killing of a human being, and article 1160, P. C., plainly says: ‘If any person shall assault another with intent to murder, he Shall be confined,’ etc. This court must follow the law and interpret the law, but is not empowered to make laws. It is unquestionably true that under the present law a person may be convicted of assault tó murder and sent to the penitentiary for a term of years when there is no specific requirement in the charge oi the court trying him, that the jury must find as a necessary fact that the killing [assault] was upon malice aforethought. The jury must be told in a charge for this offense that the accused cannot be convicted unless the jury believe beyond a reasonable doubt that in whatever assault he may have made there was the intent to kill. This the court below did in the case before us. The Legislature originally put malice aforethought into murder, and consequently,-into assault to murder; they have now seen fit to take it out to the extent that it is no longer a necessary element in either offense. The boundary line in such eases as the one before- us, between aggravated assault and assault to murder is, was there an intent to kill? Whether there is or not is a question of fact.”

Shortly after the shooting, appellant was arrested without a warrant of arrest having been issued and taken to the county-attorney’s office, where he made a confession. Appellant objected to the introduction of the confession upon the ground that it was obtained in violation of law, inasmuch as appellant had not been taken before a magistrate immediately upon his arrest. The opinion is expressed that the objection was properly overruled. It is not necessary to decide whether the officer was in the wrong in failing to take appellant before a magistrate. Appellant was not forced to make the confession. He could have remained silent. His confession was taken in strict compliance with the provisions of article 727, O. O. P. The confession was not to be excluded under article 727a, O. O. P., which provides that no evidence obtained in violation of the statutory law will be admitted against the accused in a criminal case. Carter v. State (Tex. Cr. App.) 22 S.W.(2d) 659; Pena v. State, 111 Tex. Cr. R. 218, 12 S.W.(2d) 1015.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

We find in this record a sworn request made by appellant herein asking that he be permitted to withdraw his motion for rehearing and accept the affirmance. The request is granted. The motion for rehearing is withdrawn. The original judgment of af-firmance will stand.


author: LATTIMORE, J.

text:
    GOREE v. STATE.
    No. 14239.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Thos. G. Binkley, of Graham, for appellant. ■
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, four years in the penitentiary.'

This is rather a peculiar case; Appellant and some other parties were engaged in a game of cards-out in the woods. Appellant’s 16 year old son was present, but seems not to have engaged in the game. Mr. George, the alleged injured party, was constable. He observed the card game in progress, and after some time approached the parties and made a remark about their having selected a cool place. They scrambled to eonceal the cards and money. There is some evidence of some of the parties having had intoxicating liquor. Some words passed between Mr. George and the ,young son of appellant, and a difficulty ensued in which. Mr. George was cut with a knife, the cut inflicting a wound some three and one-half inches long on the left breast. There seems 'no question but that the knife which inflicted the cut was in the hands of appellant. The testimony for the s^ate tended to show that the assault upon the officer was unprovoked on the part of appellant. The' defensive testimony was that the officer threw his hand upon his pistol while engaged in a wordy discussion with appellant’s son, and, believing the officer was about to shoot the boy, appellant drew his -knife and struck the officer with it

Appellant urges very strongly the insufficiency of the testimony. In view of the fact that we are of opinion the case should be reversed, for reasons hereinafter set forth, we express no opinion about the testimony further than to say that in the condition the record is before us there is some doubt as to the sufficiency of the testimony to show the deadly character of the knife used by appellant. There is no testimony as to the length of its blades or its size. In fact what we deem to be the chief reason for a reversal of this case turns upon said knife.

The sheriff of the county took the wit-, ness stand for the state and produced a knife which he said was handed to him by Ottie Keel shown :by other evidence to be one of the parties present at the difficulty. The sheriff testified that he had had this knife in his possession since he had obtained it from Keel. The state then introduced Mr. Keel, who testified that he was present at the difficulty but did not see the blow struck inflicting the cut upon Mr. George, but that he did see appellant’s son have a knife in his hand immediately after the cutting, which knife witness took into his possession and later gave it to Mr. George, the injured party. Mr. George testified that the knife used by appellant passed into the possession of Ottie Keel and was given by Ottie Keel to the sheriff. Appellant's son said he had no other knife except the one used by his father. The knife referred to by the sheriff and produced by him was introduced in evidence and was before the jury. Appellant on the witness stand in his own behalf testified denying that the knife used by him was the knife produced by the sheriff, but swore that the knife he had and used was a smaller knife than this one.

Dr. Griffin for the state testified as to the character of wound inflicted upon George, but at no time did he say that it was serious. However he did say that the knife shown him was such weapon as that death could be inflicted by its use. In his charge to the jury the court told them that, if one made an assault upon another with a deadly weapon under such circumstances and in such manner as evinced an intent to kill him, etc., they should find appellant guilty.

In connection with his motion for new trial, appellant presented the affidavit of the sheriff in which he said that he was mistaken in his testimony in this case when he produced before the jury a knife which he said was the one given him by Ottie Keel. He further said in his affidavit that the knife produced by him was not said knife. It also appears that there was some discussion in the jury room that appellant claimed the knife used by him not to be the knife produced by the sheriff in order to try to make it appear to the jury that the knife used by him was in fact a smaller knife.

Taking into consideration the above facts, in view of'the fact that appellant was not given the lowest penalty, and that the knife exhibited before the jury and by their trusted sheriff identified substantially as the one used by appellant is now shown not to be that knife, it seems to us that these facts necessitate a reversal of this case, and that it be sent back for a trial in which the identity of the knife may be correctly stated and put before the jury, to the end .that they may be better informed whether the knife actually used by appellant was in fact a deadly weapon.

The judgment will be reversed, and the cause remanded.


text:
    MOYE v. STATE.
    No. 14299.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    M. E. Gates, of Huntsville, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


text:
    GREEN v. STATE.
    No. 14167.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Lee P. Pierson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The record is before us without any bills of exception, and the only question is the sufficiency of the testimony. Examining the statement of facts, we observe that officers, with a search warrant apparently regular, went to appellant’s premises and there found some 30 gallons of whisky and a quantity of beer. Appellant was not at the house when they entered, but appeared during their search. They had found only a young woman in the house before the appearance of appellant, from whence the officers did not know. When he appeared, he told the officers not to molest the young woman, that what was on the premises was his. Appellant took the witness stand in his own behalf and admitted that he told the officers that-the beer on the premises was his. The jury heard the testimony, and they have resolved the facts against appellant. We think their judgment fully justified.

No error appearing, the judgment will be affirmed.


author: HAWKINS, J.

text:
    DUNCAN v. STATE.
    No. 14159.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    Sam S. Devall, of Hallettsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

The state used only one witness, the sheriff, who, acting under proper warrant, searched appellant’s premises. Under, a chicken coop near the residence, he found a gallon jar of whisky. In the garage he found two or three quarts of whisky. Following a trail some distance from the residence, he found in a “potato house, kind of log house,’’ eight or ten barrels of mash, a still, and two furnaces; the ashes or bricks about the furnaces were still hot. No evidence was offered by appellant.

The only bill of exception found in the record recites that appellant objected to the testimony of the sheriff on the ground (as we understand it) that the information upon which the affidavit was predicated had been received from an intoxicated person. The bill might be dismissed as wholly insufficient, in that it fails to set out what evidence the sheriff gave. But, waiving that, it seems to present no error. The affidavit recites that the two affiants had been informed by a party (naming him) while intoxicated that appellant was manufacturing and .selling on described premises intoxicating liquor, and that he had thereon a still and equipment designed for the purpose of such manufacture. We presume appellant based his objection on the theory that information received from one under the influence of intoxicating liquor was not reliable. In the present instance, it proved to be most accurate. Under .cross-examination regarding the matter, the sheriff said the party was not drunk, but had been drinking, and was under the influence of liquor, that he had arrested the party- and placed him in jail, and it was some three or four hours later the information was given upon which, the affidavit was based.

Finding no error in the record, the judgment is affirmed.


author: CHRISTIAN, J. MORROW, P. J.

text:
    FULLER v. STATE.
    No. 14219.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Rehearing Denied April 29, 1931.

      J. S. Bracewell, and Ohas. B. Spiner, both of Houston, for appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

It was uncontroverted that appellant and Cecil Dickerson took a check in the sum of $34.90 from E. E. Parker. This check had been issued to Parker by the Hughes Tool Company. At the time of the taking appellant and his companion exhibited a pistol. While Parker’s hands were up one of the parties took the check out of his pocket. They thereafter cashed the check and divided the proceeds.

Appellant made a motion to quash the indictment on the ground that the check was not sufficiently described. It was alleged in the indictment that appellant took “from the person and possession of said E. E. Parker one check of the value of $34.90, said check being a check issued by the Hughes Tool Company to E. E. Parker, the same being the property of the said E. E. Parker.” We deem this description sufficient. In the • case of Fulshear v. State, 59 Tex. Cr. R. 376, 128 S. W. 134, 135, the appellant was charged with the theft of a certain pay check No. 1716, issued by the Texas & New Orleans Railroad, of the value of $64.47, alleged to be the property of one N. Templet. In holding the description sufficient, Judge Ramsey, speaking for the court, said: “Here the number of the check was given, the name of the person drawing same, the person to whom payable, and the amount of the check. It is not claimed that in fact appellant was surprised, nor can it be readily seen how in the nature of things he could have been surprised under the allegation by the production of the evidence here tendered and admitted,”

In Pye v. State, 74 Tex. Cr. R. 322, 171 S. W. 741, the writer of the opinion expressed the view that the description of the property alleged to have been stolen as “one vendor’s lien note for the payment of $8,000 and of the value of $8,000” was insufficient. The cases of Calentine v. State, 50 Tex. Cr. R. 154, 94 S. W. 1061, 1062, 123 Am. St. Rep. 837, and Patrick v. State, 50 Tex. Cr. R. 496, 98 S. W. 840, 841, 123 Am. St. Rep. 861, 14 Ann. Cas. 177, were referred to as supporting the conclusion of the writer. A majority of the court were of the opinion that the description was sufficient. In Calentine v. State, supra, it was said; “The property alleged to have been stolen is a promissory note of the value of $31.80, but it is not alleged by whom the note was executed, nor is the amount of the note stated, or its face value, the date of its execution or the date of its maturity, nor the date when it was made payable; nor do the complaint and information contain any matters of description which would enable defendant to plead either an acquittal or a conviction in bar of a subsequent prosecution for the same alleged offense.”

The description of the note was held insufficient. In Patrick v. State, supra, the description of the railroad tickets alleged to have been stolen was as follows: “Did then ana there unlawfully and fraudulently take from the possession of S. M. Gibson six railroad tickets, reading from Texarkana, Texas, to Kansas City, said tickets of the value of fourteen and 6¾00 dollars each, and of the aggregate value of eighty-seven and 8¾00 dollars; the same being corporeal personal property of and belonging to the said S. M, Gibson.” This description was held insufficient.

The Patrick and Calentine Cases were, in effect, overruled in Pye v. State, supra. Later, in Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561, 563, this court, speaking through Presiding Judge Morrow, held that an indictment for robbery in setting forth the property as “one check of the value of $12.35, the same being the property of the said John Long,” did not sufficiently describe the property alleged to have been taken. Reference was made to the fact that in charging the offense of robbery, as in charging theft, the description of the property taken is essential. Pye v. State, supra, was, in effect, overruled. In the case of Burns v. State, 112 Tex. Cr. R. 328,16 S.W.(2d) 538, it was held that, in an indictment charging embezzlement, the description of the property as “a certain check in the sum of five hundred .dollars of the value of five hundred dollars, the same being then and there the corporeal personal property of and belonging to the said C. O. Harper,” was insufficient'. Holland v. State, supra, was cited in support of the holding.

Neither Holland’s Case nor Burns’ Case holds that a check, when made the basis of an indictment for robbery or embezzlement, should be minutely described. They go no further than to hold that the mere description of the property as a check of a certain named value is insufficient. Giving effect to the holding in such cases, we find nothing therein that militates against the sufficiency of the description in the present case. Moreover, Fulshear v. State, supra, is authority for upholding, the sufficiency of the indictment under consideration. Again, a more detailed description of the property in question is given than was set forth in the indictments in the Oalentine and Patrick Oases. If it should be conceded that Pye v. State, supra, was, in effect, overruled in Holland’s Case, the opinion is expressed that the description here is sufficient, when tested by the principles controlling. The law does not require minuteness of detail, but demands only that the particular offense be set out with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Ford v. State, 108 Tex. Cr. R. 626, 2 S.W.(2d) 265. We do not doubt that the description in the indictment here is sufficient to meet the demands of the law.

It is appellant’s contention that the court should have instructed the jury not to consider his confession if they had a reasonable doubt as to whether it was voluntarily made. We doubt whether the issue was raised. In any event the matter is not properly before us for review, inasmuch as appellant’s •objections to the charge of the court fail to show that they were presented to the court before the main: charge was read to the jury. The caption- of these purported exceptions is identical with that found in the record in Gibson v. State, 88 Tex. Cr. R. 281, 225 S. W. 538, 541, as is also the notation of the judge. In Gibson’s Case, speaking for the court, Judge Lattimore said: “Referring to our ruling upon his objections to the charge of the court, in which we said we could not consider the same because not properly verified, appellant insists that the caption of the paper ¡purporting to set forth such objections is as follows: ‘Now comes the defendant, and before the court has read and delivered his charge to the jury, and makes the following objections to the court’s charge.’ And the contention is made that this is sufficient, and also that the trial court indorsed on said paper, ‘Refused,’ by mistake. In the case of Salter v. State, 78 Tex. Cr. R. 325,180 S. W. 691, it was held, in an opinion written by the presiding judge of this court, that, where exceptions are taken to the charge before being read to the jury, same must be verified in some way so as to inform this court that such procedure actually occurred. The fact that the caption of the paper purporting to contain such exceptions recites that it contains the objections presented before the charge was read is not a verification by the trial court of the fact of such presentation, and unless there be some such verification apparent on the paper, or else we be so informed by a bill of exceptions approved as the law directs, we would be compelled to hold that we could not consider the matter urged as objections to the charge. In the instant case there is no such bill of exceptions, and as the paper purporting to contain the exceptions not only has not- the approval of the trial court, but is by him marked, ‘Refused,’ we could not. consider same.”

In Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097, this court, in an opinion by Judge Hawkins, reiterated the holding in Gibson’s Case. In Benson’s Case, as in the case at bar, the only indorsement or notation on the purported exceptions and objections to the court’s charge was the word “Refused” over the judge’s signature. The caption of the purported exceptions recites the fact that appellant presented, his objections to the charge of the court before said charge was read to the jury. While appellant brings forward a bill of exception wherein it is recited that he objected to the charge of the court on the ground that the issue as to whether the confession was voluntary was not submitted to the jury, it is nowhere shown in said bill that the objection was presented to the court before the charge was read to the jury.

A careful examination of appellant’s contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The appellant’s motion for rehearing is overruled upon the authorities and remarks appearing in .the opinion on motion for rehearing in Fuller v. State (Tex. Cr. App.) 37 S.W.(2d) 1037, this day decided.


text:
    FULLER v. STATE.
    No. 14213.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    Rehearing Denied April 29, 1931.
    J. S. Bracewell and Chas. B. Spiner, both of Houston, for appellant.
    O’Brien Stevens, Cr. Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for five years.

The record is before us without a statement of facts. In the absence of a statement of facts we find one question calling for review. Appellant filed a motion to quash the indictment on the ground that the check alleged to have been taken from the injured party was not sufficiently described. An examination of the indictment discloses that the description of the check is .substantially the same as that contained in the indictment in the case of Freddie Fuller v. State (Tex.. Cr. App.) 37 S.W.(2d) 1034, this day decided. In that case we held the description sufficient.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In the light of the precedents cited in the original opinion in Fuller v. State, 37 S.W.(2d) 1034, namely, Fulshear v. State, 59 Tex. Cr. R. 376, 128 S. W. 134; Pye v. State, 74 Tex. Cr. R. 322, 171 S. W. 741; Calentine v. State, 50 Tex. Cr. R. 154, 94 S. W. 1061, 123 Am. St. Rep. 837; Patrick v. State, 50 Tex. Cr. R. 496, 98 S. W. 840, 123 Am. St. Rep. 861, 14 Ann. Cas. 177; Holland v. State, 110 Tex. Cr. R. 384, 10 S.W.(2d) 561, the opinion is expressed that the description of the property in the indictment is sufficient. Mr. Branch, in his Ann. Tex. P. C., p. 1312, § 2424, citing many precedents, to some of which reference is made below, declares that a particular description of the property stolen is not required, but that a general description is sufficient; and that a written instrument need not be set out by its tenor. See Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670; Gaines v. State (Tex. Cr. App.) 77 S. W. 10.

The motion for rehearing is overruled.


text:
    CLIFTON v. STATE.
    No. 14298.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Donald M. Duson, of El Campo, and E. Hawes, Jr., of Wharton, for appellant.
    Lloyd W. Davidson,- State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery; the punishment, confinement in the penitentiary for twenty-five years.

The record is before us without a statement of facts or bills of exception. No question is-presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has-been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: ' CALHOUN, J.

text:
    DARNELL v. STATE.
    No. 14297.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Donald M. Duson, of El Campo, and E. Hawes, Jr., of Wharton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' CALHOUN, J.

Offense, robbery .with firearms; penalty, twenty-five years in the penitentiary.

The record is before this court without either statement of facts or bills of exception, and nothing is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    SHEFFIELD v. STATE.
    No. 14126.
    Court of Criminal Appeals of Texas.
    April 15, 1931.
    E. T. Tates, of Brownsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being 18 months in the penitentiary.

Officers armed with a.search warrant found in appellant’s yard, in a hole about 12 feet from the back door of his house, three quarts of intoxicating liquor. The containers had been broken. About 25 yards from the rear of the house in a basket which had been covered with clothes taken from a clothesline they found an assortment of liquor, consisting of 9½ pints of whisky, 1½ pints of Habenero, 3 pints of Mescal, and 2 ⅛ pints of gin. Thirty or forty yards from the residence in the horse lot they found a 5-gallon can of alcohol buried in the ground. Across the road from appellant’s house in and near a canal were found four sacks of miscellaneous intoxicating liquor, each sack containing two or three bottles. When the officers found the liquor across the road, appellant, who up to that time had remained silent, said that particular, liquor was not Ms, but that all they had found on his place belonged to him.

Appellant did not testify, and- offered no defensive evidence whatever.

In the brief filed for appellant we find many propositions advanced and questions suggested which are not raised by the bills of exception. We are necessarily restricted to a consideration of points brought forward by the bills.

Bill of exception No. 3 reflects that the court would not permit counsel for appellant to ask one of the affiants who signed the affidavit for the search warrant “if he actually swore to it before the justice of the peace, or if he merely signed it and the justice of the peace then put his jurat on it.” We assume that by the question appellant was attempting to bring himself within the principle announced in Armstrong v. State, 107 Tex. Cr. R. 553, 298 S. W. 604; Moore v. State, 112 Tex. Cr. R. 142, 15 S.W.(2d) 617; Puga v. State, 112 Tex. Cr. R. 431, 17 S.W.(2d) 55. Unfortunately the bill omits any information as to what answer was expected from the witness. In this respect it is fatally defective. See authorities collated in Branch’s Ann. Tex. P. C., § 212, p. 136, and under note 2, art. 667, Yernon’s Tex. O. O. P., vol. 2.

Bill 4 recites that the state introduced a sack of liquor found in an uninclosed place some 40 yards from appellant’s house, over objection that such liquor was not covered by the search warrant nor proved to be appellant’s. This liquor was found across a road in and near a canal at a point 35 or 40 yards from appellant’s house. No other person lived near there except appellant. His nearest neighbor was several hundred yards from the point where the liquor was found. The fact that appellant at the time it was found disclaimed ownership of it would not make its introduction erroneous. It was found so near appellant’s house that under all the circumstances of the case it raised a reasonable inference that it belonged to him. Beside, no objection seems to have been urged to evidence of the fact that the liquor was found, but only against the introduction of the liquor itself. Unless we misapprehend the facts, the location of this particular liquor was such that the officers needed no search warrant to make the search for and seizure of it lawful. Wolf v. State, 110. Tex. Cr. R. 124, 9 S.W.(2d) 350; Greenwood v. State, 110 Tex. Cr. R. 478, 9 S.W.(2d) 352; Worth v. State, 111 Tex. Cr. R. 288, 12 S.W.(2d) 582. This discussion also disposes of bill of exception No. 6.

When the officers found the liquor in or near the canal across the road from appellant’s house, he made the statement that it was not his, but that all the other liquor which had been found belonged to him. Proof of his statement was objected to on the ground that he was in custody of the officers. This is stated as a ground of objection only. It is not certified in the bill that he was in custody. From an examination of the statement of facts we doubt if he was arrested until after he had made the statement mentioned. Even if he was in custody, the statement appears admissible' as res gestee.

No objection appears to have been urged to any evidence secured as a result of the search based upon the claimed defect in the search warrant or affidavit upon which it was predicated. Bills 1 and 2 reserve exception to the admission in evidence of the affidavit and warrant themselves. We have frequently held that, where the sufficiency of the affidavit and warrant is questioned to admit evidence secured by a search thereunder they should ordinarily be exhibited to the judge in order that he may rule intelligently regarding the matter, and that statements and recitals contained in the affidavit or warrant are hearsay and should not be given to the jury. Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577; Broyles v. State, 110 Tex. Cr. R. 77, 7 S.W.(2d) 555; McFarland v. State, 110 Tex. Cr. R. 101, 7 S.W.(2d) 955; Booth v. State, 110 Tex. Cr. R. 548, 9 S.W.(2d) 1032; Dillon v. State, 108 Tex. Cr. R. 642, 2 S.W.(2d) 251.

Objections were urged to the introducv tion of the affidavit and warrant upon many grounds, but it does not appear necessary to discuss them. If the affidavit and warrant were defective, it would not avail appellant to. have objected to their admission save as the recitals therein might have been hearsay, and prejudicial to appellant. No objection was urged to either the affidavit or warrant upon this ground.

The punishment assessed against appellant was confinement in the penitentiary for eighteen months. In pronouncing sentence, the court inadvertently failed to give effect to the indeterminate sentence law, and directed that he be incarcerated in the penitentiary for the full term of the verdict. The sentence is reformed to direct his confinement in the penitentiary for not less than one year nor more than eighteen months.

As thus reformed, the judgment will be affirmed.


text:
    Ex parte MINUS.
    No. 14292.
    Court of Criminal Appeals of Texas.
    April 8, 1931.
    Bruce W. Teagarden, of San Antonio, and Joe W. Caldwell, Jr., of Asherton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an appeal from the refusal to discharge the appellant upon a writ of habeas corpus.

The arrest was upon a complaint under article 923d, P. O. 1925, which reads as follows: “The Commissioner or any of his deputies shall have the right to search the game bag or any other receptacle of any kind whenever such Commissioner or his deputy has reason to suspect that such game bag, or other receptacle or any buggy, wagon, automobile or other vehicle may contain game unlawfully killed or taken, and any person who refuses to permit the searching of the same, or who refuses to stop such vehicle when requested to do so by the Commissioner or his deputy, shall be fined not less than ten nor more than one hundred dollars.”

The relator is on bail pending the appeal.

There was filed in this cause on the 26th of March, 1931, a certified copy of a motion by the county attorney to dismiss the prosecution in' the trial court, also a certified copy of the order of the justice of the peace granting the motion to dismiss the case. The appellant has filed his opposition to the dismissal of the appeal pending in this court. The authority of the prosecuting officer to dismiss pending cases in the trial court with the consent of the presiding judge is declared by article 577, C. C. P. 1925. The precedents under the statute are uniform to the effect that the dismissal of the prosecution with the consent of the presiding judge is conclusive. See Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 435, and other cases collated in Vernon’s Ann. Tex. C. C. P. 1925, vol. 1, p. 501. See, also, Ryan v. State, 81 Tex. Cr. R. 632, 198 S. W. 582.

It has often been held that an appeal in a habeas corpus matter will be ■ dismissed, where it appeared that the applicant was not in custody. See Branch’s Ann. Tex. P. 0. § 240, and authorities cited, including Ex parte Peyton, 2 Tex. App. 295, and many others. The precedents cited deal with the law as it stood prior to the enactment of chapter 43, Acts of 40th Leg. (1927), Regular Session, p. 66 (Vernon’s Ann. C. C. P. art. 857a). The law formerly governing the matter is found in title 3, chapter 7, C. C. P. 1925, art. 144.

The dismissal of the prosecution in the present case manifestly vacates the recognizance, so that there is no custody, or right te the custody, of the accused; the effect of such dismissal ousts the jurisdiction of this' court to pass upon the questions of law presented in the appeal.

The appeal is dismissed.


author: FLETCHER, Special O. J.

text:
    HALL v. WILBARGER COUNTY et al.
    No. 3474.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1931.
    Rehearing Denied April 15, 1931.

      Storey, Beak & Storey, of Yernon, for appellant.
    Luther Hoffman, of Wichita Palls, and J. V. Townsend, of Vernon, for appellees.
   FLETCHER, Special O. J.

This is an appeal from a judgment rendered in the county court of Wilbarger county, Tex., in a condemnation proceeding, wherein the commissioners’ court and ,the county court of said county undertook to condemn a right of way for a federal-aided state highway through appellant’s farm, which consists of about 100 acres situated in said county and lying about three miles west of the town of Vernon, the county seat thereof.

In 1928, the commissioners’ court of said county, acting by and through its county engineer, proceeded to. lay out and have constructed diagonally across said farm a federal-aided state highway, 80 feet in width, and which is known as Lee Highway, being State Highway No. 28.

It does not appear from the record before us that a petition signed by freeholders of the precinct through which it was proposed to build the road had been filed seeking the establishment of such road, nor that notice and advertisement of such intention was ever issued or made. It does not appear from the record that appellees filed any pleading of any kind in such proceeding until a few days before the trial in the said county court.

After the case was filed in the county court, and on February 22, 1930, appellees filed therein what is designated “Answer to the Contest.” This pleading contains a general demurrer, general denial to appellant’s pleading, and the further allegations that all the requirements of the laws .of Texas with respect to the condemnation of private property for highway purposes had been complied with, and that appellant’s land had been taken in a lawful manner, and that such proceeding under which the land was taken was in all things lawful and authorized under the laws of the state of Texas; that a jury of view had been appointed, and that appellant had participated in a hearing before such, jury of view, which found that 3.21 acres of his land would be taken for the construction of such highway, which highway extends across Wilbarger county. It .was further alleged that the reasonable cash value of the land so taken was, at the time of the taking, $200 per acre, and that the amount of damages sustained by appellant as a result of the .taking of his land and the building of the road across his farm was $742, which sum the said county tendered to him. It was further alleged that the sum of $200 per acre allowed by the jury of view1 was more than the actual cash value of the land at the time it was taken for highway purposes, and that, in fact, aside from the value of the land actually taken, appellant had sustained no damages, but, on the contrary, the benefits accruing to him and the remainder of his land by reason of the building of .the road are far in excess of any damages sustained by him.

This pleading further alleged that the land taken by said county was for the purpose of laying out, constructing, and maintaining across such county what is known as Lee Highway. The pleading does not describe appellant’s land. It wound up with a prayer that appellant’s damages be ascertained and that a decree be entered condemning the land taken for said right of way and that title to such easement be vested in Wilbarger county.

In reply to appellees’ pleading, the appellant filed his answer and cross-action, which contains a general demurrer, and pleas attacking the jurisdiction of both the commissioners’ court and the county court, as follows:

(a) Because the proceeding is one to condemn property for a state.highway known as Lee Highway No. 28, and the commissioners’ court of Wilbarger county had no authority to institute or conduct such a proceeding, such authority being vested by law in the state highway commission under article 6674n, Vernon’s Ann. Civ. St.

(b) Because, under the statutes, before appellant’s land can be condemned for state highway purposes the state highway commission must make a bona fide effort to agree with the owner of land upon the amount of damages, which was not done prior to the institution of the condemnation proceeding.

(c) Because the aforesaid statute contemplates that any proceeding to condemn land for a state highway shall be instituted by the Attorney General in behalf of the state of Texas, wherefore, Wilbarger county nor its commissioners’ court nor the county court thereof, nor any officer thereof, had any authority to institute and prosecute the proceeding, and therefore the county court of Wil-barger county has no jurisdiction.

(d) Because no petition, as required by article 6705, R. S. of 1925, was ever made or filed with the said commissioner's’ court, praying for the establishment of such road,- and no notice by written advertisement for twenty days of the intended application was posted, as required by said article 6705. That, as shown by the orders of the commissioners’ court, and as stated in the road notice issued by the jury of view to complainant, the proceeding to open and establish the road across complainant’s land was instigated by only three persons, without a petition, and that the commissioners’ court, upon request >of said parties and without authority of law, proceeded to appoint a jury of view to lay out said road; that because such action was taken by the commissioners’ court and the county judge without a petition, and because notice of the appointment of the jury of view was not served, as required by statute, all action taken by the jury of view and the report filed by such jury and the attempted award of damages are void and confer no jurisdiction upon this court .to condemn said premises, nor to try the case.

Appellant alleged that thereafter he filed with the jury of view, under protest, his claim for damages, itemized as .required by law, aggregating $5,000, which claim recites . that it is made without prejudice to or waiver of any of defendant’s (appellant’s) legal rights. Appellant further alleged several items and causes of injury and damage to him and his land by reason of the construction of said highway across his farm, and prayed for his damages.

After the parties had introduced their evidence, the court submitted the case to the jury upon special issues, in response to which the jury found that the value of appellant’s land taken for said highway right of way, at .the time it was taken, was $200 per acre; and that there was no difference between the market value of the remaining portion of appellant’s land just prior to and just after the construction of the paved road.

After the verdict of the jury was returned and before the judgment was entered of record, it appears that appellees filed in the proceeding and attached to their pleading an exhibit which contained a description of appellant’s land. The exhibit appears to have been filed and attached to the said pleading without the knowledge or consent of appellant.

Upon the verdict of the jury the court rendered judgment condemning appellant’s land so taken for highway purposes,' vested the title to such easement in Wilbarger county, and allowed appellant $642 damages, which sum is the actual market value of that part of the land appropriated for the highway as found by the jury.

The record further discloses that the road in question was laid out and constructed as a state highway and that it is designated as such; that the right of way is 80 feet wide; and that there has been laid upon that right of way a pavement 18 feet in width. Extending west the road enters appellant’s land at an angle of about forty degrees south of west. The road continues on that angle for a distance of 1,746 feet to a point where it leaves his farm. The farm is in the form of a rectangle, the longest lines of which extend north and south. The road cuts the farm in two tracts, the tracts being about equal to each other in area, forming an acute angle on the east and west sides of the farm.

The state highway commission is not a party to this suit, and it does not appear that such commission participated in the condemnation proceeding in any manner.

The power to exercise the right of eminent domain must be conferred by statute. The proceeding is a harsh one, and the provisions of the statutes enacted upon the subject should be strictly followed and strictly construed in favor of the owner of the property sought to be taken thereby. When conferred, the exercise of, the right is ,a special statutory proceeding. In speaking with reference to the pleadings and proof in special statutory proceedings, our Supreme Court, in the case of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1089, through Chief Justice Cureton, said:

“Having determined that the above named requisites of a ca.use of action to set aside an award and the county designated by the statute are jurisdictional, the conclusion follows .that they must be alleged and proven. A proceeding of this type is a special one brought under statutory power to enforce a statutory cause of action in derogation of the common law, and there can be no presumption of jurisdiction. Jurisdictional allegations are an integral and necessary part of the case, without the statement of which there is no cause of action. * * *
“The rule is well settled in most jurisdictions and in this state ‘that there is no pre'sumption of jurisdiction where a court, although it is one of general jurisdiction, exercises special statutory powers in a special statutory manner or otherwise than according to the course of the common law, since under such circumstances the court stands with reference to the special power exercised on the same footing with courts of limited and inferior jurisdiction.’ ”

The rule above stated has been held to apply to condemnation proceedings. Ryan v. State (Tex. Civ. App.) 21 S.W.(2d) 597, in which the court said: “The only right of eminent domain and condemnation proceeding to acquire same is that given by statute. The general rule is that where the cause of action and remedy for its enforcement are derived from the statute, its provisions are mandatory and exclusive and must be complied with or the action is not maintainable.”

Article 6705, R. S. of 1925, provides: “The commissioners court shall in no instance grant an order on an application for any new road, or to discontinue an original one, or to alter or change the course of a public road, unless the applicants have given at least twenty days notice by written advertisement of their intended application, posted up at the court house, door of the county and at two other public places in the vicinity of the route of such road. All such applications shall be by petition to the commissioners court, signed by at least eight freeholders in the precinct in which such road is desired to be made or discontinued, specifying in such petition the beginning and termination of such road, provided an application to alter or change a road need not be signed by more than one freeholder of the precinct.”

Appellees’ petition filed in the court below upon which the case was tried fails to allege that the requirements of this statute were complied with in laying out the road. Such matters are jurisdictional in a proceeding of this kind, and the petition fails to state a cause of action. The trial court should have sustained appellant’s general demurrer. Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162.

It is true appellees pleaded that all the requirements of the laws of the state of Texas with respect to condemning appellant’s land for such highway purposes had been complied with. The allegation is not tantamount to a specific allegation that a petition signed by eight freeholders of the precinct in which the road is located was made and that written advertisement had been made of the intended application to locate such road as required by the statute. The allegations in the petition are too general and are only conclusions that the statutory requirements were complied with.

Under the authority of Haverbekken v. Hale, supra, the mere fact that appellant' appeared before the jury of view and participated in a hearing before them did not cure the jurisdictional defects. The public generally, at least of that county, had a right to be heard on the application to build the road. The people affected, by taxation or otherwise, were interested in the road project and had the right to appear and contest the building of it. Article 6705 provides for advertisement to be posted. Article 6709 provides that written notice shall be served upon the landowner, his agent or attorney, through whose land the road may run. By these provisions, we think, the Legislature intended that the advertisement to be posted is for the purpose of informing the public generally, and that it is not to be regarded as exclusive information to such landowners whose lands may be affected by the road. We conclude that the advertisement by posting notices of the intended application to lay out the road is a jurisdictional step to be taken before a commissioners’ court can proceed.

Article 6704 provides that the commissioners’ courts shall classify all public roads in their counties. Subdivision 1 of the statute prescribes that first-class roads shall- be “not less than forty feet nor more than sixty feet wide.” in this case the commissioners’^ court' undertook to lay out a first-class highway 80 feet in width. At the time the road involved in this case was located, we think, commissioners’ courts of this state could not, in any instance, condemn a right of way for a highway more than 60 feet wide.

Article 6674b co-ordinates all the state highways of this state into one general system.

Article 6674c provides that commissioners’ courts of each county in the state may aid in the construction and maintenance of any section or sections of macadamized, graveled, or paved roads in said county constituting a part of the state highway system, and may enter into contracts with the state highway department for that purpose.

Article 66743 provides that all further improvements of said state highway system with federal aid shall be made under the exclusive and direct control of the state highway department and with appropriations made by the Legislature out of the state highway fund. The further improvement of said system'without federal aid may be made by the state highway ss'stem either with or without county aid.

Article 6674f provides that the total cost of all state highways made with county aid shall be paid out of the state highway fund; that the county or road district in which any such improvement may be made shall reimburse said fund in such amounts, and in such proportion of the total cost of improvement, as may be agreed upon between the state highway department and the commissioners’ court of the county.

Article 6674g provides that said county aid shall be paid to the state highway department for deposit in the state treasury to the credit of the state highway fund. It shall be paid by warrants issued by the county clerk and countersigned by the county judge and approved by the commissioners’ court upon accounts of the state highway department certified by the state highway engineer.

Article 6674n provides as follows: “Whenever, in the judgment of the State Highway Commission, the use of any timber, earth, stone, gravel, or other material, convenient to any road being constructed or maintained under the provisions of this Act will facilitate such construction or maintenance or whenever in the judgment of said commission it is necessary or expedient to construct or reconstruct any such road over a new or wider right of way, the State Highway Commission shall have the right to use any such materials most convenient to such roads and to acquire such land or lands for the public use and benefit as may be necessary for the new or wider right of way. In such cases the owner of such materials or land shall be paid therefor out of the State Highway Fund. Provided, that should the owner of such land or materials and the State Highway Commission fail to agree upon the amount to be paid therefor, then the Attorney General at the request of the State Highway Commission shall proceed to condemn the same for and on behalf of the State of Texas in the same manner as near as may be that commissioners’ courts of certain counties may condemn materials under the provisions of Articles 6894 and 6895, Title 119, Revised Statutes, 1911, such condemnation proceedings to be held in the county in which such material or land so to be condemned may he situated. The highway commission’s portion of the expense of such proceedings shall be paid out of the State Highway Fund.”

It appears from these articles of our statutes that all the state highways of this state are under the exclusive control and' management of our state highway department; that whenever a county undertakes to aid in the construction or maintenance of a state highway within its borders it must make its contract to do so directly with the state highway department, dnd it must pay its aid money to that agency of the state for the purpose of reimbursing the state highway fund.

In the case-of Singeltary v. Heathman, 300 S.W. 242, 245, the Court of Civil Appeals at Galveston, in discussing such issue, said: “But there being no such specification, and the highway for which the money was voted to be expended being not only a part of the state highway system, but also a recipient of federal aid as such, its ownership, location, and control were vested exclusively in the state highway commission (Robbins v. Limestone County; 114 Tex. 345, 268 S. W. 915) subject only to the qualification that, under the United States Highway Act of 1921 [23 USCA §§ 1-25], the approval of a location on the ground by the federal bureau of roads must first be had before construction work could begin.”

That case reached the Supreme Court of this state on a writ of error, Heathman v. Sin0gletary, 12 S.W.(2d) 150, 153, and in discussing the matter, Judge Short, for the Commission of Appeals, said: “It is further held that the commissioners’ courts of the state never exercise any jurisdiction over the highways except by virtue of the laws of the state, as enacted by the Legislature, and that since article 5, sec. 18, of the Constitution, conferring on the county commissioners jurisdiction over all county business, does not, in terms, confer on that body power over county roads, the Legislature has the authority to take away the jurisdiction once conferred upon commissioners’ courts over public highways of the state and transfer it to another agency. This the law has done as to state highways.”

We conclude that at the time the road involved in this ease was laid out and constructed, the commissioners’ court of Wilbar-ger county had no power to institute and prosecute the proceeding to condemn any part of appellant’s land for state highway purposes; and since the state highway department was not a party to the proceeding, the county court below was without jurisdiction to proceed with the matter. Watt v. Studer (Tex. Civ. App.) 22 S. W. (2d) 709; Central P. & L. Co. v. Willacy County (Tex. Civ. App.) 33 S.W.(2d) 476.

Appellees suggest in their brief that appellant, by appearing and participating in the hearings and proceedings, and by written agreement, and also by oral agreement in open court, has waived the right to question the jurisdiction of the county court. It was within the power of appellant to waive the personal notice to himself. Crawford v. Frio County (Tex. Civ. App.) 153 S. W. 388. But he could not waive the twenty days’ advertisement of the intended ^ application to lay out the road. That information is for the public generally, and is a jurisdictional step without which there is no jurisdiction. Haverbekken v. Hale, supra.

One paragraph of the written agreement referred to reads: “It is further agreed that if the county court case aforesaid goes to trial before a special judge, that plaintiff, Judge Hall, will dismiss the District Court case heretofore referred to, and will not make application for injunction; that until the case is dismissed the status quo of the District Court ease shall be maintained as at present, and in event it is not dismissed under this agreement the defendants in that suit will enter their appearance for the January, 1930, term of court, and will file their answer or answers on or before appearance day.”

It is seen by the language used that no agreement was made to dismiss such case. The language itself refutes any such agreement. It placed appellant under no obligation to dismiss. He was to dismiss or not to dismiss at his option. The language is empty.

Another part of the agreement reads: “It is further agreed that the plaintiff, Judge Hall, will not contest the condemnation proceedings heretofore had as to his land on Highway No. 28 as to any alleged irregularities or illegalities.”

We do not understand why appellant was styled “plaintiff” in the agreement. He was, as a matter of fact, the defendant.

It was then agreed in open court that all matters in controversy would be eliminated and .waived except the value of the land taken, and the damages and benefits, if any, to appellant’s land not taken.

It is within the power of parties to a lawsuit to waive simple irregularities affecting their rightsbut they cannot waive such matters as jurisdiction in the court to hear and determine their controversies. They cannot create a court. The law of this state has established the several courts thereof and has firmly fixed their jurisdictions. The jurisdiction of a court as fixed by law cannot be changed by the parties to a suit pending therein. It is the duty of every court to inquire for the purpose of ascertaining if it has jurisdiction over the subject-matter and the persons to the suit. If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is void. It is an empty proceeding which the law will not recognize as having any effect. Appellate courts, however, do have jurisdiction to arrest such a proceeding, to declare its invalidity, and to set it aside. This the appellate court will do on its own motion. We conclude, therefore, that appellant could not waive any jurisdictional matters in the trial court; and neither does the doctrine of es-toppel apply so as to confer jurisdiction. The county court of Wilbarger county was without jurisdiction to take any step in the proceeding before it other than to dismiss it for the want of power to hear and determine the conflict. 15 C. J. 844, § 164; 15 C. J. 802, § 101.; 7 R. O. L., 1039, § 70; Perkins v. U. S. F. & G. Co. (Tex. Com. App.) 299 S. W. 213; Williams v. Steele, 101 Tex. 382, 108 S. W. 155, 157.

The exhibits referred to, as having been filed and attached to appellees’ pleading after the trial of the case, were stricken out by the trial court on motion <5f the appellant. The court was correct in this action. Litigants have no right to amend or supplement their pleadings after the trial of the ease. A proper pleading is a jurisdictional step to be taken before the court can hear and determine the controversy. The pleading of appellees upon which the ease was tried should have described appellant’s land. Wilson v. Newton County (Tex. Civ. App.) 269 S. W. 227; Parker v. F. W. & D. C. Ry. Co., 84 Tex. 333, 19 S. W. 518.

In view of further litigation over the subject-matter, we have been asked to discuss other points brought forward in the record, especially with respect to the rules of law governing the measure of damages, if any, and the benefits, if any, to appellant and his land by reason of the construction of said highway across his farm.

Not only does the law abhor a multiplicity of suits, but, we think, it abhors any disposition on the part of an appellate court to fail or refuse to pass upon all questions brought before it, which have arisen or may likely arise affecting the merits of the controversy.

Article 3265, R. S. 1925, bearing upon the rule of damages, under the exercise of the right of eminent domain, subdivision 4 thereof, reads as follows: “In estimating either the injuries or benefits, as provided in the preceding article, such injuries or benefits-which the owner sustains or receives in common with the community generally and which are not peculiar to him and connected with his ownership, use and enjoyment, of the particular parcel of land, shall not be considered by the commissioners in making their estimate.”

Appellant contends that the testimony of the witnesses of the appellees, when analyzed, shows that they fixed the amount of appellant’s damages to the remainder of his land at fifty to seventy-five dollars per acre, and that their testimony further shows that they offset this specific injury by the increased value of the land resulting from the construction of the road through that community; that the substance of their testimony is that while the farm was damaged from fifty to seventy-five dollars per acre, the general benefit occasioned by the coming of the road, in the increased market value of the land, which was common to the community, offset and balanced the amount of damages and benefits; and that the jury, in answering the issue, adopted their theory. We have examined the testimony of the witnesses and believe that appellant’s construction of the effect of their testimony is correct.

It was shown by the testimony that, before the building of the road across appellant’s land, there was a state highway on the north and west sides thereof, and a private road on the east side, giving him ample road facilities to market, church, and school.

The increased market value of the land brought about by the construction of the paved road is not such benefit standing alone as can be offset against actual damages done to the farm. Such improvement must result in benefits peculiar, to that tract of land, such as a resulting drainage or other condition that actually improves the land as a farm — being a farm before the road was laid —and which increases its intrinsic or usable, value. If there were no suitable roads available to the land, and the new road to or across the farm brought about a benefit which was not common to the other land in the neighborhood, it would be a benefit to be considered, for over the new road the farmer would have an outlet to market, to church, and school, which was not enjoyed before. If the construction of the road does no more than. in-_ crease the market yalue._of_the_ land, it might only result in increased taxes, which would detract from its income. However, any increase in taxes brought about by the increased value of the land by reason of the improvement it appears would be common to all the land in the community through which the road passes and would, therefore, not be the basis of damages resulting to any particular' tract of land.

It might be said that a paved highway, such as the one named in this case, is an improvement over the dirt roads, and that the use of the paved road results in a benefit and enjoyment of the farm not had until the new road was built. But this sort of benefit would be common' to all the land in the vicinity of. the route of the road, and not peculiar to any certain tract of land along the highway, and therefore, under the statute, could not be offset against actual damages. Likewise, the injuries resulting from the construction of the road, such as the noise and annoyance of the highway traffic, cannot form the basis for damages because it is common to the community generally.

In the case before us it appears that the road across appellant’s farm cuts it in two irregularly formed tracts, the two tracts being about equal to each other in area, and forming an acute angle of about forty degrees in each tract, with its complimentary obtuse angle on the opposite side of the highway, resulting in inconvenience in cultivating the area lying at and near the vertices of the acute angles. The rows in the field will have to be shorter than before the road was made, thereby causing a waste of time in turning from one row to another in the cultivation of the crop. This condition has also brought about the inconvenience and expense of building a crossing over the highway in order to pass from one tract to the other. There is some evidence in the record indicating that the building of such road across appellant’s farm has brought about a condition that causes his farm to overflow with water from rainstorms. All these matters and conditions should be considered in arriving at the damages sustained by appellant. But the increased value of the land and the usable value of the paved road, being common to all the land in the vicinity, of the route of the highway, and not peculiar to appellant’s farm, should not be considered. Articles 3265, 6771; Anderson v. Wharton County, 27 Tex. Civ. App. 115, 65 S.W. 643; Shirley v. Russell, 149 Va. 658, 140 S. E. 816; Williamson v. Read, 106 Va. 453, 56 S. E. 174; Cook v. Eastland County (Tex. Civ. App.) 260 S. W. 881; Eastern Texas Ry. Co. v. Eddings, 51 Tex. Civ. App. 166, 111 S. W. 777; Harris County v. Gerhart, 115 Tex. 449, 283 S. W. 139; Angelina County v. Bond (Tex. Civ. App.) 16 S.W.(2d) 338; Palo Pinto County v. Gaines (Tex. Civ. App.) 168 S. W. 391; Voss v. Harris County, 33 Tex. Civ. App. 249, 76 S. W. 600.

We approve the holding in the case of Shirley v. Russell, supra, with the exception that we do not think it can be held as a matter of law that dirt roads are not adequate or suitable to travel or transportation by motor vehicles. ' We think that depends upon’ the manner in which such roads are maintained, the character of the soil, and the weather.

The trial court submitted to the jury the following special issue: ‘‘What is the difference in the reasonable fair market value, if any, of the balance of the defendant’s land just prior to the building of the highway over said land and just after said highway was built?”

Appellant objected to said issue being submitted. Based upon what has been said about such market value, and upon the authorities above cited, we think the court erred in submitting said issue to the jury. The jury found there was no difference, and in arriving at that finding they may have, and probably did, offset the increased market value of the land traversed by the road against the damages occasioned thereby to such land as a farm. The question to be determined in this case is whether the usable valué of the land as a farm has been increased or diminished by the building of the road. And in arriving at a solution of the question, neither the increased market value of the land nor the usage of the paved highway by appellant, his employees or tenants, should be considered because such benefits and enjoyment of the highway are common to the community generally.

The judgment of the county court is reversed and the condemnation proceedings dismissed. The costs in the trial court and in this court are taxed against Wilbarger county.

On Motion for Rehearing.

In our former opinion rendered in this case we held that commissioners’ courts of this state, at the time the road involved herein was laid out, had no power to condemn, in any instance, a right of way for a public road more than sixty feet in width. We wore in error in making any such holding. It appears that in 1927 the Legislature (chapter 178, § 1 [Vernon’s Ann. Civ. St. art. 6704]) amended article 6704 of the Revised Statutes of 1925 by substituting the word “eighty” for the word “sixty” in subdivision 1 thereof, which gave commissioners’ courts the right to condemn a right of way for county roads not to exceed eighty feet in width. That act was again amended in 1929 (chapter 197, § 1 [Vernon’s Ann. Oiv. St. art. 6704]). But the amendment of 1927 was in force when the road here involved was laid out and constructed. In passing upon the powers of commissioners’ courts with respect to such matters, we overlooked the act of 1927. To that extent the appellees’ motion for rehearing is granted and that part of our opinion which declares that commissioners’ courts of this state, .at the time the road ip question was laid out, had no power to condemn, in any instance, a right of way for a public road in excess of sixty feet, is withdrawn.

On all other matters we incline to the views, heretofore expressed by us and, with the exception above noted, the motion for rehearing is overruled.