author: CALVERT, Chief Justice. NORVELL, Justice

text:
    RIVER OAKS GARDEN CLUB, Petitioner, v. CITY OF HOUSTON et al., Respondents.
    No. A-9313.
    Supreme Court of Texas.
    June 26, 1963.
    Rehearing Denied Oct. 17, 1963.

      Butler, Binion, Rice & Cook, Tom Alexander, with above firm, Houston, for petitioner.
    R. H. Burks, City Atty., Houston, Homer T. Bouldin, Asst. City Atty., for respondents.
   CALVERT, Chief Justice.

River Oaks Garden Club sought a judgment in the trial court, pursuant to the Declaratory Judgment Act, Art. 2524 — 1 , declaring certain property owned by it to be exempt from ad valorem taxes assessed by the City of Houston and Houston Independent School District for the years 1959 and 1960, and from those to be assessed in future years. The trial court rendered judgment so declaring.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment declaring that the property was not exempt from such taxes. 360 S.W.2d 855. We affirm the judgment of the Court of Civil Appeals.

Petitioner’s claim to exemption is asserted under the provisions of Secs. 14 and 20 of Art. 7150. They read in pertinent part as follows:

“14. Art Galleries, etc. — All property belonging to Art Leagues and Societies of Fine Arts, whether incorporated or not, which are devoted wholly and without charge to the promotion of education and learning, including Art Galleries and exhibits therein contained, the land upon which the same are situated, which is devoted exclusively to such purposes, and also all land, money, pictures and other works of art and all other personal property which may be necessary and in actual use for the purpose of carrying out' said educational feature.
******
“20. American Legion and other Veterans’ Organizations. — Hereafter all buildings, together with the lands belonging to and occupied by * * * any non-profit organization chartered or incorporated under the Texas Statutes for the purpose of preserving historical buildings, sites and landmarks, not leased or otherwise used with a view to profit, shall be exempt from taxation in this State. * * * ”

Petitioner is incorporated as a non-profit corporation. Its purposes as set forth in an amendment to its Articles of Incorporation adopted in November, 1959 are as follows:

“The purpose of the River Oaks Garden Club shall be the creation of a Society of Fine Arts, devoted wholly and without charge to the promotion of education and learning in the field of the fine art of gardening and related fine arts.
“Further, the River Oaks Garden Club shall maintain the historical building on the premises known as the Old Smith County School and is incorporated for the purpose of preserving the building which is not to be leased or otherwise used with a view to profit.”

By the purposes thus expressed in the amended Articles of Incorporation, petitioner has sought, in clear language, to bring its property within the exemptions of Secs. 14 and 20, quoted above. For purposes of this opinion we may assume it has done so. However, if its exemption is not authorized by the Constitution, it has done so to no avail.

Legislative authority to exempt property from taxation is found in Sec. 2, Art. VIII of the Constitution. Vernon’s Texas Constitution. The section is quite lengthy and no good purpose would be served by quoting it in full. Petitioner contends that its right to exemption under the quoted provisions of Sections 14 and 20 of Article 7150 is authorized by the language of Sec. 2, Art. VIII which empowers the Legislature to exempt “institutions of purely public charity.”

Because of the wording of Sec. 2, Art. VIII, as it was written originally, we held in Morris v. Lone Star Chapter No. 6, Royal Arch Masons, 68 Tex. 698, 5 S.W. 519, that it did not authorize exemption of institutions of purely public charity as such but only that property which was owned by such institutions and was used exclusively by them for purely public charity. We have adhered to that construction through the years in spite of frequent changes in internal language and punctuation in the section, and have denied exemption of property, not used exclusively by the owner for purposes of purely public charity. See City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S.W. 978; State v. Settegast, Tex.Com.App., 254 S.W. 925; Benevolent & Protective Order of Elks v. City of Houston, Tex.Civ.App., 44 S.W.2d 488, writ refused; City of Longview v. Markham-McRee Memorial Hospital, 137 Tex. 178, 152 S.W.2d 1112.

The record in this case discloses that the property in question is not being used exclusively by River Oaks Garden Club; that other non-profit organizations are permitted the use of the property without charge. The Court of Civil Appeals denied tax exemption for that reason. We do not reach the question decided by the Court of Civil Appeals because there are far more basic reasons for holding that exemption of petitioner’s property is unauthorized by the Constitution.

The last clause in Sec. 2, Art. VIII provides that “all laws exempting property from taxation other than the property above mentioned shall be null and void.” Respondents question the constitutionality of the purported exemption in Section 20 but do not question the constitutionality of that in Section 14.

Our Constitution containing the provision for exemption of institutions of purely public charity was ratified on February 15, 1876. In August of the same year the Legislature passed “An Act defining what money and property is subject to taxation or exemption, and the mode of listing the same.” 8 Laws of Texas 1111. Among the exemptions provided in Sec. 5 of the Act was, “All buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions, not leased or otherwise used with a view to profit * * That exemption still exists. Sec. 7, Art. 7150. Neither the Constitution nor the early statutes defined an “institution of purely public charity.” Nor, so far as we have been able to discover, had the courts of this state defined the term before 1905.

In 1905 the Legislature amended the Statute relating to the exemption of property from taxation, 12 Laws of Texas 314, and for the first time defined an institution of purely public charity, as follows:

“An institution of purely public charity under this act is one which dispenses aid to its members and others in sickness or distress, or at death, without regard to poverty or riches of the recipient, also when the funds, property and assets of such institutions are pledges [sic] and bound by its laws to relieve, aid, and administer in any way to the relief of its members when in want, sickness and distress and provides homes for its helpless and dependent members and to educate and maintain the orphans of its deceased members or other persons.”

Except for changing the word “pledges” to “placed,” the definition has been preserved through the years and now appears as a part of Sec. 7, Art. 7150. While the primary purpose of the legislative definition was probably to insure that exemption was accorded property of organizations dispensing charity only to a small segment of society, included also is the concept that an institution of purely public charity is one which dispenses aid to the sick, the distressed and the needy, by providing for their basic needs. The necessary converse of the legislative definition is that an organization cannot be an institution of purely public charity unless its funds, property and assets are pledged and used to provide for the basic needs of the sick, distressed and needy, whether the benefits be extended only to a small segment of society or to the public generally.

This Court suggested a definition of an institution of purely public charity, without reference to the statutory definition but largely in the same terms, in City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S.W. 978, 981, where we said:

“In our opinion, the Legislature might reasonably conclude that an institution was one of ‘purely public charity’ where: First, it made no gain o.r profit; second, it accomplished ends wholly benevolent; and, third, it benefited persons, indefinite in numbers and in personalities, by preventing them, through absolute gratuity, from becoming burdens to society and to the state.”

Here, again, the primary purpose of the definition suggested was to meet the contention that an institution which dispensed aid only to its own members was not an institution of purely public charity; but here again, also, is the concept that an institution of purely public charity is one whose charity benefits persons “by preventing them, through absolute gratuity, from becoming burdens to society and to the state.” We did not leave our meaning in that respect in doubt. We continued:

“Charity need not be universal to be public. It is public when it affects all the people of a community or state, by assuming, to a material extent, that which otherwise might become the obli-ation or duty of the community or the state.”

The necessary converse of that statement is that an organization is not an institution of purely public charity within the-meaning of the constitutional exemptioni unless it assumes, to a material extent, that' which otherwise might become the obligation or duty of the community or the state..

The courts of some states construe constitutional and statutory tax exemptions, accorded institutions of purely public charity liberally, some strictly. See Zollman’s-American Law of Charities, pp. 460-468. The courts of Texas have been committed’ to a strict construction since an early date.. See Morris v. Lone Star Chapter No. 6,. Royal Arch Masons, 68 Tex. 698, 5 S.W. 519. Moreover, a strict construction seems-more in harmony with the intent of the people when they adopted the Constitution in 1876, and conforms to our announcement in Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1151, that “The fundamental rule for the government of courts in the interpretation or construction of a Constitution is to-give effect to the intent of the people who-adopted it.” The action of the delegates-in the Constitutional Convention of 1875-on various tax exemption proposals, as reflected in the Journal of the Convention, indicates that they intended that exemptions-from taxes be narrow and limited.

In Morris v. Lone Star Chapter No. 6,. Royal Arch Masons, 68 Tex. 698, 5 S.W. 519, 520-521, we stated the underlying reason for a strict construction of the “used exclusively” provision of the constitutional tax exemption, as follows:

“The reason of these rules would seem to he that it is hut just and equitable that the property of all persons and associations of persons should hear the burdens of government in equal proportion; and hence it is to he presumed that the law-makers did not intend to make an exception in favor of any class unless that intention be clearly expressed.”

In Massachusetts General Hospital v. Inhabitants of Belmont, 233 Mass. 190, 124 N. E. 21, 25, the Supreme Judicial Court of 'Massachusetts stated the rationale for exemption from taxes of property of charitable institutions as well as a sound reason for strict construction in these words:

“One ground upon which exemptions from taxation of charitable institutions like the complainant can be justified in .a constitutional sense is that they minister to human and social needs which the state itself might and does to a greater or less extent undertake to satisfy. The ultimate obligation of the ■state thus is discharged by the private •charity. To that extent the state is relieved of its burden. [In re] Opinion of [the] Justices, 195 Mass. 607, 609, 84 N.E. 499. An exemption from taxation is in the nature of an appropriation of public funds, because, to the extent of the exemption, it becomes necessary to increase the rate of taxation upon other properties in order to raise money for the support of government.”

With the foregoing discussion of the law in mind, we now examine the facts in the record before us to determine whether petitioner is an “institution of purely public charity” within the meaning of the constitutional provision.

The property for which exemption is sought is in the City of Houston and is owned by petitioner. Situated on the property is the Old Smith County Schoolhouse, a landmark in Harris County of historical value. Petitioner has, at considerable expense, renovated the building and beautified the grounds. One area is devoted to experimental gardening. The building and grounds are open six days a week to any members of the public generally as care to visit, without charge. There is a library in the building and a few ornamental works of art about the premises. Petitioner holds its regular meetings in the building, and, on occasions, invites speakers on gardening, horticulture, flower-arrangement, etc. Such members of the public generally as care to do so may attend the lectures, without charge. The building is not used by petitioner for social functions. Other non-profit organizations with similar purposes are permitted to use the building for their meetings, without charge. Some of the organizations which have been using the building are The Houston Symphony Society Women’s Council, The Amarylis Society, The African Violet Society and The Gulf Coast Botanical Research Society. In additional to beautifying its own grounds, petitioner has spent some $4,000 on beautification of a section of Memorial Drive. It publishes a book on gardening which is available in Houston and Southeast Texas.

We hold on the facts here stated that petitioner is not an institution of purely public charity. Admittedly, its main activity is to educate and enlighten its members, and such other persons as care to attend its meetings or read its book, in the art of growing and arranging flowers. That activity may be one which the state or local government could finance from taxes, a question we need not decide, but it is certainly not an activity which either the state or local government is under a duty or an obligation to finance in providing educational opportunities and benefits to its society.

If petitioner may claim tax exemption as a constitutional “institution of purely public charity,” there can be no end of exemptions accorded clubhouses and meeting places owned by small groups of persons of common aesthetic interests who associate themselves to promote and enjoy their particular interests. All they would need do would he to declare theirs to be a society of fine arts, devoted exclusively to education and learning in the field of their particular interests, and admit the public, without charge, to their clubhouse and meetings. It is but a half stride from the art of gardening to the art of interior decorating, and less than a half stride to the art of dramatics. Many others are but a stride away.

The Constitution provides separate exemptions of properties owned and used for educational purposes and of properties owned and used for charitable purposes. The exemption in the field of education is of “all buildings used exclusively and owned by persons or associations of persons for school purposes.” Sec. 2, Art. VIII, Constitution. If an organization uses its property exclusively for school purposes, the property is exempt whether the operation be purely charitable or for profit. The exemption is justified because by the operation of schools the state or community is relieved of its obligation to provide through taxes for the formal education of its youth. Cassiano v. Ursuline Academy, 64 Tex. 673. Respondent does not claim exemption under this provision, and could not do so successfully. And yet, it seeks the same result by claiming exemption as a purely public charity because of its educational contributions in gardening and flower arrangement, principally to its own members, which neither the state nor the community is obligated to provide. We cannot believe that such an exemption was ever intended by either the framers of the Constitution or the people who adopted it.

We are not to be understood as holding that property of an institution of purely public charity, devoted to the promotion of education, cannot be exempt from taxes unless it be used exclusively for school purposes. We would have an entirely different question if exemption were sought for property owned and used exclusively by an institution or foundation whose purpose was to grant scholarships or otherwise to aid in providing formal education to deserving-persons.

Apposite here is Dickison v. Woodmen of the World Life Ins. Soc., Tex.Civ. App., 280 S.W.2d 315, writ refused. In that case Woodmen of the World claimed tax exemption for its property under Art. 10.39' which expressly declares that every fraternal benefit society is a charitable and benevolent institution and directs that their property shall be exempt from taxation. The court denied exemption on the ground that Woodmen was not in fact an institution of purely public charity and that it could not be made one by mere legislative declaration. No more may a charter declaration of a worthwhile purpose make an institution one of purely public charity if it is not one in fact.

Having concluded that petitioner is not an institution of purely public charity, we need not decide the constitutionality of the exemption quoted above from Sec. 20‘, Art. 7150; nor need we decide whether petitioner would be an institution of purely public charity if its sole purpose and activity were the preservation of the Old Smith County Schoolhouse. The fact that an organization performs some charitable acts or engages in some charitable activity is not enough to qualify it for the tax exemption provided in Sec. 2, Art. VIII of the Constitution. Masonic Temple Ass’n v. Amarillo Independent School Dist., Tex.Civ.App., 14 S.W.2d 128, writ refused; B.P.O.E., Lodge No. 151 v. City of Houston, Tex.Civ.App., 44 S.W.2d 488, writ refused; Dickison v. Woodmen of the World Life Ins. Soc., Tex.Civ.App., 280 S.W.2d 315, writ refused.

In sustaining the validity of a charitable trust created in a will, the Waco Court of Civil Appeals, relying on the Restatement of Trusts and certain legal texts and encyclopedias, stated the “Charitable purposes include (a) the relief of poverty; '(h) the advancement of education; (c) the advancement of religion; (d) the promotion of health; (e) governmental or municipal purposes; and (f) other purposes the accomplishment of which is beneficial to the community.” Powers v. First National Bank of Corsicana, Tex.Civ.App., 137 S.W.2d 839, 842, affirmed, 138 Tex. 604, 161 .S.W.2d 273. See also Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497, 502, 168 A.L.R. 1326. But we are not here con■cerned with the purposes for which charit.able trusts may be created; rather, we are here concerned with the intent of those who framed and adopted the Constitution in ■extending tax exemptions to properties own-id by institutions of purely public charity. Valid charitable trusts may be institutions of purely public charity within the meaning of Sec. 2, Art. VIII of the Constitution, '.but they are not necessarily so.

It may well be that all property of all nonprofit organizations or institutions whose ■activities are in any way beneficial to any segment of society should be exempt from -taxes. For like reason, it may be that all property used exclusively for purposes beneficial to society should be exempt from taxes ■even though owned by persons or organizations otherwise bent on earning profits. But those are not the exemption provisions of ■our present Constitution. The way to provide them is by amendment of the Constitution.

The judgment of the Court of Civil Appeals is affirmed.

NORVELL, Justice

(dissenting).

I am unable to agree with the narrow and restricted concept of the term “charity” which for the first time this Court has .•adopted with reference to the constitutional power of the Legislature to grant tax ex•emptions to charitable institutions. The ■constitutional grant upon which the legislative power rests has in some respects been narrowly construed, but a restrictive construction has not heretofore been applied in determining whether or not a particular activity is charitable. In my opinion, it is not only unnecessary but unfortunate to restrict the meaning of the term “charity” to those actions which tend to prevent individuals from becoming burdens to society and to the State, or to those activities which either the state or local government is under a duty or an obligation to finance in providing educational opportunities and benefits to its society. This is charity in its most restricted and narrow sense. The test of preventing persons from becoming burdens to society and the State is only properly used to determine whether an activity or trust with a limited class of beneficiaries can be properly classified as a charity. And to say that charities in the educational field must be restricted to those activities which the state or local government is under a duty or obligation to finance is to adopt a standard which is both overly restrictive and highly uncertain. Where and when may we expect agreement as to educational subjects which the state or local government is under an obligation to finance? However, while my difference with the Court may not be as deep as a well, it rather approaches such proportions, and hence there is nothing to be gained by discussing the variations of wording in which the rule adopted by the Court might be couched. The import of the Court’s holding is clear: the only charity which is eligible for legislative exemption is one whose activities will directly lessen a financal burden which would otherwise be borne by the taxpayer. This is not my concept of a charity.

The Texas courts have definitely adopted the classification of charitable purposes set forth in the American Law Institute’s Restatement of Law of Trusts. See, Powers v. First National Bank of Corsicana, Tex.Civ.App., 137 S.W.2d 839, affirmed 138 Tex. 604, 161 S.W.2d 273; Frost National Bank v. Boyd, Tex.Civ.App., 188 S.W.2d 199, affirmed, Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326.

It was said by this Court in the case last cited that:

“The authorities leave no doubt that the words ‘charitable purposes’ have a fixed meaning in law and that a judicial determination may be made with satisfactory certainty in every case where the question of whether a given purpose is or is not charitable arises. Chapter 4 of the statutes of 43 Elizabeth, enacted in 1601, known as the Statute of Charitable Uses, although not adopted in Texas, ‘is regarded by many authorities as the principal test and evidence of what the law will consider charitable uses,’ and the enumeration of those uses as set out in the preamble to the act was accepted as authoritative in Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273.
“Illuminative in this regard is the following quotation from Zollman’s American Law of Charities, § 187, p. 123: ‘It must never be forgotten that the words “charity” and “charitable” are technical terms. Since the statute of Elizabeth, they have had a technical meaning both in England and America, including even those states in which the statute has been repealed or has not been re-enacted or adopted. “They are lifted from their popular and lexicographical meaning. In them survives a ■ history from which they have derived a special significance. They condense volumes of controversy and decision into a phrase which must be now read by the growing light under which it has been developed.”
“And the following excellent definition of ‘charity’ and ‘a charitable use’ is evolved in 2 Perry, Trusts and Trustees, 7th ed., § 697, p. 1182: ‘It will be seen that the words “charity” and “a charitable use” have a somewhat technical meaning in the law. * ⅝ * The word “charity” in its widest sense, denotes all the good affections men ought to bear toward each other; in a more restricted sense, it means relief or alms to the poor; but in a court of chancery the signification of the word is derived from the statute of Elizabeth, [and a public charity need have no special reference to the poor.] Hence it has been said that those purposes are considered charitable which are enumerated in the statute, or which by analogy are deemed within its spirit or intendment. * *
“Current legal concepts of what are charitable purposes are well gathered into the following classification in II Restatement, Trusts, § 368, p. 1140:
“ ‘Charitable purposes include
(a) the relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the promotion of health;
(e) governmental or muncipal purposes ;
(f) other purposes the accomplishment of which is beneficial to the community.’ ”

The charter of the River Oaks Garden Club provides that:

“The purpose of the River Oaks Garden Club shall be the creation of a Society of Fine Arts, devoted wholly and without charge to the promotion of education and learning in the field of the fine art of gardening and related fine arts.
“Further, the River Oaks Garden Club shall maintain the historical building on the premises known as the Old Smith County School and is incorporated for the purpose of preserving the building which is not to be leased or otherwise used with a view to profit.”

In my opinion the River Oaks Garden Club, under and by virtue of its charter, is an organization for the advancement of education; and hence is a corporation created for charitable purposes under the definition contained in the Restatement.

Admittedly, the Powers and Boyd cases were concerned with charitable trusts. They involved the rule against perpetuities which is a public policy doctrine designed to insure that real property remain a comparatively free article of commerce. An exception to the rule is recognized in the case of charitable trusts upon the theory that the removing of property from the stream of commerce is offset or overbalanced by the public good derived from the charitable institution. In determining whether or not the concept of a “charity” as developed in the field of charitable trusts is valid in the area of tax exemption, it is well to bear in mind that a tax exemption is based upon a similar premise to that supporting an exception to the rule against perpetuities, namely, that the contribution to the public good made by the charitable institution overbalances the public loss which is caused by removing the property from the tax rolls.

Article 8, § 2 of the Texas Constitution, authorizes the Legislature to exempt from taxation “all buildings used exclusively and owned by persons or associations of persons for school purposes * ⅛ * and [all] institutions of purely public charity * *.” Morris v. Lone Star Chapter No. 6, R.A.M., 68 Tex. 698, 5 S.W. 519. The use of the word “public” in connection with the word “charity” really adds nothing to it. The term “public charity” is quite commonly used in legislative enactments exempting from taxation those institutions engaged in ■“purely public charity”; but accurately speaking, all charities by definition must be public. Powers v. First National Bank of Corsicana, Tex.Civ.App., 137 S.W.2d 839, 1. c. 842. The word “purely” as used in the Constitution refers to the qualify of the charity, i. e., “that it should be wholly altruistic in the end to be attained, and that no private or selfish interest should be fostered under the guise of charity.” City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978. Insofar as this case is concerned, the “charity” of the constitutional provision relating to tax exemption is essentially the same as the “charity” considered by the courts in relation to the law of trusts and has been regarded as analogous by this Court. Powers v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273. The difference in wording employed in the Constitution and that employed by the courts in discussing charitable trusts is of little or no significance.

I do not regard any of the Texas authorities cited by the Court of supporting its restricted view of charity. The statute of 43 Elizabeth anedates the Texas Constitution of 1876, and hence the framers thereof, being concerned with the preparation of a basic legal document, may be supposed to have used terms of recognized legal significance. It is reasonable to conclude that the term “charity” was used in its legal and technical sense rather than to designate something in the nature of a dole, restricted to such objectives as would prevent poor and indigent people from becoming burdens to society and to the State. It has been said on respectable authority that “man does not live by bread alone.”

The relief of poverty is one type of charity, and a commendable one at that. It is mentioned first in the classifications set forth in the Restatement. As heretofore pointed out, when this kind of charity is involved and there is a restriction upon the class of beneficiaries, the element of preventing the members of the restricted class from becoming burdens to society is an important consideration. In other classifications of charity it may have little or no significance.

The 1905 Act now carried forward as Article 7150, § 7, Vernon’s Ann.Tex.Stats., does not purport to define an institution of purely public charity in the constitutional sense.

In Morris v. Lone Star Chapter No. 6, R.A.M., 68 Tex. 698, 5 S.W. 519, this Court made no attempt to state an all-inclusive definition of “charity” or “charitable purposes.” The Court expressly pretermitted a decision of whether the property-owning corporation was a charitable institution. The property involved was a Masonic Temple, and a portion of the building: had been leased for profit. This was the turning point of the case. The Court concluded that the building was not used exclusively for purely charitable purposes. The use contemplated by the Constitution was held to be “the actual and direct use for the purposes of the association, and not a use by others for revenue, although that revenue may be exclusively appropriated for the objects of the charity.”

In City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978, the only charitable use or purpose involved was the relief of poverty. The charter of the benevolent association as set forth in the agreed statement of facts provided that:

“The purpose for which said corporation is formed is to provide for the relief of needy Masons, their wives, widows, mothers and children. * * ”

In this category of charities, the objective of preventing individuals from becoming burdens to society is an important consideration. However, the building owned by the association was used by the San Jacinto Lodge of Perfection No. 6 and the Rose Croix Chapter No. 5, which were Scottish Rite Lodges. The holding of this Court was that as the agreed statement of facts showed that the two Lodges mentioned were engaged in the work of the Masonic order which was “not an order 'that does nothing but dispense charity.’ But it does dispense charity,” such Lodges were not engaged in purely charitable activities

In Dickison v. Woodmen of the World Life Ins. Soc., Tex.Civ.App., 280 S.W.2d 315, wr. ref., it was held that the Woodmen of the World Life Insurance Society, which owned the property claimed to be tax exempt, was not an institution of purely public charity. The Court said:

“The question is then narrowed to the inquiry of whether or not an association or society which is authorized to issue benefit certificates in the nature of life insurance on a contractual basis and apply its assets acquired from assessments or any other source to the payment of such certificates, can reasonably be classified as an institution for the accomplishment of 'ends wholly benevolent’. City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S.W. 978, 981.
“Under the Texas decisions, despite the attempted legislative classification, it must be held that such ends are not wholly benevolent and such an organization as here involved is not an institution of ‘purely public charity’ within the constitutonal definition.” [280 S.W.2d 315, 319]

The other authorities cited by the Court are of similar import. They represent a restrictive or conservative view of charity only in that they hold that the organization claiming the exemption must have purely charitable objectives unmixed with non-charitable objectives or purposes. The case last mentioned is illustrative. An organization which sells life insurance and also maintains a hospital is not an institution of purely public charity.

Similarly, the use to which the property is put must be wholly charitable and unmixed with non-charitable uses. Morris v. Lone Star Chapter No. 6, R.A.M., 68 Tex. 698, 5 S.W. 519; City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978.

I have no quarrel with those cases, but they do not stand for the proposition that no organization or no use may be classed as charitable unless the activities of the organization or the uses made of its property be such as will tend to directly lessen a financial burden which would otherwise be borne by the taxpayer. Had the framers of the Constitution intended to limit the tax exemption authorization to the relief of poverty, they could have easily said so instead of employing the broader term of “charity.”

The promotion of the fine arts of gardening and related fine arts and the maintenance of historical buildings may not tend to prevent persons from becoming charges upon society; such activities may not be those which the state or local government is under a duty or obligation to finance (although there may be some argument about historical sites); yet under the legal definition of “charity,” they should be classed as charitable activities and hence within the meaning of the constitutional provision which authorizes the Legislature to grant tax exemptions. And here I would not enter the metaphysical field in order to attempt a distinction between that which may be classed as educational and that which is merely aesthetic. Whenever such distinctions are attempted, the tendency is to substitute a subjective standard for one which should be objective, and regard that which we consider worthwhile as being educational and that in which we have little or no interest as being merely aesthetic. In this area the Legislature has some discretion. It need not exempt all activities which may be classed as “charitable” in the constitutional sense. In my opinion, the Legislature is constitutionally authorized to exempt the property of organizations such as the River Oaks Garden Club from taxation. They may not be schools, but they are organizations for the advancement of education.

As the constitutional provision is not self-enacting and constitutes a mere authorization, it follows, as above indicated, that the exemption claimed must be not only within the permissible terms of the Constitution, but also within the actual provisions of the exempting statute. Santa Rosa Infirmary v. City of San Antonio, Tex.Comm.App., 259 S.W. 926. Article 7150, Vernon’s Ann. Tex.Stats., contains some twenty-one sections purporting to exempt from taxation certain described properties under the authorization contained in Article 8, § 2, of the Texas Constitution. All of these are different in wording, and confusion may result from attempts to apply statements of courts made in construing one article to the problems of construction encountered in determining the meaning of another article. For the purposes of the present case, however, it is apparent that the property of River Oaks Garden Club comes clearly within the exemption set out in Article 7150, § 14, which reads as follows:

“14. Art Galleries, etc. — All property belonging to Art Leagues and Societies of Fine Arts, whether incorporated or not, which are devoted wholly and without charge to the promotion of education and learning, including Art Galleries and exhibits therein contained, the land upon which the same are situated, which is devoted exclusively to such purposes, and also all land, money, pictures and other works of art and all other personal property which may be necessary and in actual use for the purpose of carrying out said educational feature.”

So far, I am in agreement with the Court of Civil Appeals. In its opinion that court cited the case of Power v. First National Bank of Corsicana, Tex.Civ.App., 137 S.W. 2d 839, aff’d 138 Tex. 604, 161 S.W.2d 273, as adopting a definition of charity which is applicable to the granting of tax exemptions. Seemingly also, that court was of the opinion that had the use of the property been exclusive with the petitioner, and had the property been used in accordance with the terms of its charter, the statutory tax exemption of Article 7150, § 14, would have been applicable. The reversal of the trial court’s judgment by the appellate court resulted from the conclusion, arrived at reluctantly, that “the use of the property in question by other organizations, even though such organizations have similar purposes and use patterns” destroyed the tax exemption.

This holding by the Court of Civil Appeals is much narrower than the holding of this Court. Under the opinion of this Court the property owned by petitioner could never meet the requirements for tax exemption although it be used exclusively by the petitioner and in strict conformity with its charter. Under the holding of the Court of Civil Appeals, it is the use of the property by other organizations that renders the property ineligible for tax exemption.

If the premise be accepted that “charitable purposes” as defined in the Powers and Boyd cases are applicable to the tax exemption authorization provision of the Constitution (as I think it should be), the mere fact that a charitable use is sometimes made of the property by some organization other than the owner, should not affect the tax exemption classification of the property so long as no charge is made for such use. In the present case the Court of Civil Appeals accurately describes the use of the property made by others as being of a similar pattern to the uses made of the property by the petitioner. This Court’s opinion names some of the users of the property, i. e., Houston’s Symphony Society Women’s Council, the Amaryllis Society, The African Violet Society and the Gulf Coast Botanical Research Society. All have purposes which are cultural in nature and similar to the purposes designated in petitioner’s charter. On principle, it is illogical to say that the petitioner could promote education along botanical lines and its property would be tax exempt; but that if the property were used temporarily and rent free by the Gulf Coast Botanical Research Society for a similar purpose, the property would lose its tax exemption.

In a sense, whenever a tax exemption is granted, the State and its political subdivisions indirectly contribute a portion of the funds necessary to support the organization owning the property. The organization need not, however, be one that is eligible for tax support in order that its property be entitled to tax exemption. Churches and religious organizations are examples of institutions which may not be supported by taxation, yet their properties may be tax exempt. Once it be determined that certain activities are worthy of indirect State support through tax exemptions, it is difficult to justify the line of demarcation recognized by the Court of Civil Appeals. That court, quite obviously, made the “exclusive use by owner” distinction because of its belief that prior decisions of this Court so required.

In the quotation from City of Houston v. Scottish Rite Benevolent Association, 111 Tex. 191, 230 S.W. 978, set forth in the opinion of the Court of Civil Appeals, an exclusive use by the owner of the property is mentioned. However, the question of whether a use of property permitted by a benevolent association as owner thereof is a use by the association or a use by someone temporarily in charge thereof may become an elusive and at times a somewhat insubstantial inquiry. For example, should a speaker paid by the Gulf Coast Botanical Research Society deliver a lecture upon a botanical subject in the building owned by the River Oaks Garden Club and special invitations be sent to members of both organizations and a general invitation issued to the public, would it be correct to say that the use of the building for such purpose was not a use by the River Oaks Garden Club? The factual situation suggested may be varied in detail, but each variation will serve to demonstrate the irrelevance of the inquiry insofar as the policy of the law supporting tax exemption is concerned. If the owner be a charitable organization and the use of the property be charitable, then the exemption should be upheld.

To my mind, the Scottish Rite case supports rather than militates against this thesis. The property was owned by the benevolent association. It was used, however, by two Masonic Lodges mentioned in the opinion — San Jacinto Lodge of Perfection No. 6 and Houston Chapter of Rose Croix No. 5. This Court considered the nature of the use of the premises by these two Lodges as being highly important, although they were not the owners of the property. If it would have been sufficient to the decision of the case to simply point out that the benevolent association as owner was not using the building to the exclusion of all other organizations, why was it necessary to discuss whether or not the Masonic lodges were charitable organizations? The Court did not turn its decision upon the circumstance that the use of the property was not exclusive with the owner, but upon the proposition that the use made of the building by the non-owning lodges was not a purely charitable use. In its opinion this Court said:

“By the very manner and terms of this property’s acquisition, it was required to be used, as it was in fact used, by the two Masonic orders, ‘to enable them to pursue their work as Masonic lodges,’ such work being, as agreed, only partly charitable.
“To the extent that the property was used by Masonic organizations, whose activities included other fields than charity, it was not, and could not be, used exclusively by an institution of purely public charity. Not being used exclusively by an institution of purely public charity, the claim to exemption under the constitutional provision fails, and our answer to the certified question is that the property was subject to taxation.” 230 S.W. 978, 981.

I find no basis in either the constitutional provision nor in the applicable statutory wording to support the “exclusive use by owner” theory. We should be wary of the uncritical adoption of statements made in court opinions where the issue of “exclusive use by owner” was really not involved. I submit that the Scottish Rite case, when considered in the light of the contentions raised and the matters actually determined by the Court, supports my position here. The non-owning users of the building were not purely charitable organizations; hence there was no valid tax exemption. In the present case, it appears that the non-owners who make temporary uses of the building are using the same for educational and charitable purposes. The tax exemption should therefore be upheld. I agree with petitioner’s statement that:

“The requirement is that the Garden Club use the premises exclusively for the promotion of education and learning, without charge. The fact that other organizations of the same purpose and use-pattern are allowed to assist in-fulfilling that purpose, under the control of the Garden Club, meets the letter and the theory of Section 14 and Article 8, Sec. 2 of the Constitution, as construed by our Courts.”

I would reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. Accordingly, I respectfully dissent from the order of the court affirming the judgment of the Court of Civil Appeals.

GRIFFIN, SMITH and GREENHILL, JJ., join in this dissent.

      . All references to statutes are to Vernon’s Texas Civil Statutes unless otherwise indicated.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    A. T. BAUCUM, Petitioner, v. The GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Respondent.
    No. A-9502.
    Supreme Court of Texas.
    Oct. 2, 1963.

      Carter, Stiernberg, Skaggs & Koppel, Harlingen, for petitioner.
    Strickland, Wilkins, Hall & Mills, Mission, for respondent.
   CULVER, Justice.

The principal question presented by this appeal is whether or not respondent, The Great American Insurance Company of New York, made a valid tender under the terms of its automobile liability insurance policy so as to successfully halt the running of interest on the full amount of the judgment rendered against its insured, Jesus R. Hernandez.

On April 1, 1960, the petitioner, A. T. Baucum, obtained a judgment in the District Court of Cameron County, Texas, against Jesus R. Hernandez, d/b/a Rosary Floral and Nursery Company, and Jacinto Hernandez, jointly and severally, for the sum of $81,636, together with interest thereon from April 1, 1960, until paid at the rate of six per cent per annum, for personal injuries arising out of an automobile collision. This judgment was affirmed on appeal, (Hernandez v. Baucum, Tex.Civ.App., 344 S.W.2d 498), and has now become final, this Court having refused the application for writ of error, no reversible error, on May 24, 1961.

Baucum brought this action against insurer as liability insurance carrier on June 30, 1961, to recover the amount of that judgment to the extent of the limit of insurer’s liability, plus interest on the full amount of the judgment from April 1, 1960, until paid, and all costs of court incurred in that cause. Insurer admits that it is liable under the terms of its policy in the sum of $25,000, together with all costs of court and interest on the entire judgment from April 1, 1960, to June 15, 1960. It denies, however, that it is liable for the interest on the judgment from June 15, 1960, contending that it made a valid tender on June 14, 1960, which halted the running of interest on that date. The trial court granted summary judgment for insurer and this has been affirmed by the Court of Civil Appeals. 364 S.W.2d 713.

The stated limit of insurer’s policy is $25,000 for bodily injury liability to each person. The policy contains the following provision:

“II. Defense, Settlement, Supplementary Payments
“With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
* * * ‡ ⅜ Jfc
“(b) (2) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limits of the company’s liability thereon;” (Emphasis added)

We have recently decided that this provision obligates the insurer to pay interest on the entire judgment until it has paid, tendered, or deposited in court the amount of its liability. Plasky v. Gulf Insurance Company, 160 Tex. 612, 335 S.W.2d 581.

It is undisputed that insurer has not paid or deposited in court its part of the judgment. The question here is whether insurer made a valid tender in June, 1960. We here answer that question in the negative.

On June 13, 1960, the attorney for the insurer wrote a letter to the District Clerk of Cameron County at Brownsville, Texas, to which was attached an instrument referred to as a draft and a copy of a “partial release”. The amount of the draft was $26,008.17, which represented the liability of $25,000 plus interest on the entire judgment from April 1, 1960, to June 15, 1960. The letter stated that the District Clerk was authorized to release the draft to Baucum or his attorneys upon delivery to the Clerk of the original release duly executed by Baucum before a notary public. On the same day, he wrote to Baucum’s attorneys at Harlingen, Texas, enclosing a copy of his letter to the Clerk and the original “partial release”. The letter stated that under its policy of automobile insurance issued to Jesus Hernandez, the insurer was obligated to pay the sum of $25,000 on the judgment together with interest on the entire judgment from April 1, 1960, to June 15, 1960. A copy of the letter to the District Clerk was also sent to Baucum at his residence in McAllen, Texas. Neither Baucum nor his attorneys ever replied to this letter nor have they sought delivery to them of the draft. It still remains in the custody of the District Clerk.

Baucum contends that insurer did not make a tender in compliance with the terms of the policy for the following reasons: because of the medium of tender; the delivery of the instrument to a third person who had no authority to receive such an instrument and was therefore acting merely as agent for insurer, at a different city from either the residence of Baucum or his attorneys ; the lack of relinquishment of control over the instrument by insurer; the accompanying of the tender with conditions which the insurer had no right to impose or demand; the failure of insurer to include costs of court then accrued; and the inadequacy of the amount tendered.

A tender is an unconditional offer by a debtor or obligor to pay another, in current coin of the realm, a sum not less in amount than that due on a specified debt or obligation. Somerton State Bank v. Maxey, 22 Ariz. 365, 197 P. 892, 14 A.L.R. 1117; Walker v. Houston, 215 Cal. 742, 12 P.2d 952, 87 A.L.R. 937; Equitable Life Assur. Soc. of United States v. Boothe, 160 Or. 679, 86 P.2d 960. A valid and legal tender of money consists of the actual production of the funds and offer to pay the debt involved. The tenderer must relinquish possession of it for a sufficient time and under such circumstances as to enable the person to whom it is tendered, without special effort on his part, to acquire its possession. Universal Credit Company v. Cole, 146 S.W.2d 222, Tex.Civ.App.1940, no writ history.

The instrument in question here was “payable through Pirst National Bank in Dallas” to the order of Baucum and his attorneys. The instrument recited on its face that it was in partial payment of the judgment rendered against the Hernandez Brothers. The instrument also contained other information, such as the claim number, policy number, date of loss, and names of the insured, claimant, insuring company, and agent. We assume that instrument was a check.

We agree with the proposition stated by the Court of Civil Appeals that when a tender is refused on other grounds one will not be heard later to complain of the medium of payment. However, Bau-cum gave no reasons for rejection. He merely maintained his silence. We disagree, however, with the Court of Civil Appeals that the insurer, by delivering the check or draft to the District Clerk, had thereby relinquished all control over the same. The draft was not received T>y the Clerk in his official capacity but rather as the agent of the insurer to deliver the check to Baucum when called for and the proper release had been executed. At any time before this should occur it would be the Clerk’s obligation to deliver the papers back to the insured’s attorney upon request.

The policy provided that the insurer could stop the running of interest by doing one of three things: by payment, by tender or by deposit in the registry of the Court. If the insurer had adopted either the first or the third mode, entire control would have been relinquished. The principal reason why the delivery of the check to the Clerk falls short of a compliance with the terms of the policy, is that it has never been actually tendered to Baucum or his attorneys. We believe the situation here would be no different if insurer had notified Baucum to come to the insurer’s office, sign the release and a check for the full amount due would be delivered to him. Wardlaw v. Woodruff, 175 Ga. 515, 165 S.E. 557.

Where the contract authorizes payment or tender at a certain place such as a bank, the result of tender of payment there made is the same as if an actual tender had been made to the payee. Gulf Production Co. v. Perry, Tex.Civ.App., SI S.W. 2d 1107, writ refused. Implicit in that decision therefore is the obligation to make the tender to Baucum or his attorneys in person since insurer was not authorized to do otherwise.

Silence on the part of the payee would not constitute a waiver of the elements of a valid tender. He is not required to accept or reject until a tender has been made. At common law where no place of payment is specified or fixed by law the rule is that the tenderer must seek the tenderee and make a tender to him if he can be found by the exercise of due diligence. Berley & Kyzer v. Columbia, N. & L. Ry. Co., 82 S.C. 232, 64 S.E. 397; Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. 590; Kingston v. Anderson, 3 Wash.2d 21, 99 P.2d 630

The argument is made that since it is the established custom of insurance companies and attorneys in this locality to discharge judgments by the issuance and delivery of drafts payable to the claimant and his attorneys or payable to the Clerk for disbursement, the action of the insurer in this case would satisfy the requirements of a valid tender. In our opinion the custom at best would only serve to render unnecessary the tender of the debt in money. The transaction here is not the mere satisfaction of a judgment but rather the satisfaction of insurer’s liability in order to stop the running of the interest on the balance of the judgment.

While we are convinced that, had Bau-cum’s attorneys proceeded to the Clerk’s office and delivered the partial release, which incidentally the insurer had the right to demand, the check or draft would have been delivered by the Clerk and paid in due course, it is clear, however, that the law places no such burden on the petitioner.

The application of the rule does produce a harsh result since undoubtedly the insurer proceeded in good faith and might reasonably have anticipated that Baucum and his attorneys would accept the proposal made to them. Attorneys in their dealings with each other may normally expect a reply to a written communication and either an acceptance or rejection of an offer, but on the other hand these parties are not to be condemned at law for relying strictly on their legal rights.

We therefore hold that the petitioner is entitled to a judgment against the insurer for the sum of $25,000, plus interest on the judgment for $81,636 from the date of rendition until the date of payment and for all costs of court in both proceedings. The judgments of the trial court and Court of Civil Appeals are both reversed and the cause remanded to the District Court for the entry of a judgment in conformity with the views above expressed.


author: NORVELL, Justice.

text:
    H. M. REED, Petitioner, v. T. W. BUCK, Jr., Respondent.
    No. A-9449.
    Supreme Court of Texas.
    July 10,1963.
    Rehearing Denied Oct. 17, 1963.

      Gay & Meyers, Austin, for petitioner. Harry S. Pollard, Austin, for respondent.
   NORVELL, Justice.

On August 31, 1953, Glen Malcolm Shine and T. W. Buck, Jr., executed a promissory note in the capacity of makers. The note was assigned to petitioner, H. M. Reed, by J. H. (Dude) Stelfox, the payee named therein. The note was not paid and Reed brought suit against respondent, T. W. Buck, Jr., alleging that the whereabouts of Shine was unknown to the petitioner. The trial court rendered judgment in favor of Reed.

The trial judge filed findings of fact and conclusions of law. Among the findings of fact were the following:

“26. On February 7, 1955, the day this suit was filed, and for many months prior thereto, the residence of Glen Malcolm Shine was unknown to H. M. Reed, J. H. (Dude) Stelfox and T. W. Buck, Jr., and H. M. Reed used reasonable diligence prior to filing this suit to ascertain the residence of Glen Malcolm Shine but could not do so.
“27. On October 1, 1953, Glen Malcolm Shine was actually insolvent and such condition persisted to the date this suit was filed.”

The trial judge’s conclusions of law were as follows:

“1. T. W. Buck, Jr., was an accommodation maker of the note. * * *
“2. H. M. Reed was not a holder in due course of said note.
“3. H. M. Reed was entitled to sue T. W. Buck, Jr., without joining Glen Malcolm Shine as a party to said suit.
“4. T. W. Buck, Jr., is justly indebted to H. M. Reed in the amount of $15,370.03 plus interest at the rate of ten per cent per annum until said debt is paid.”

The Court of Civil Appeals held that it conclusively appeared that Shine was not insolvent and that the trial judge’s finding that Reed had used reasonable diligence to ascertain the residence of Shine was against the overwhelming preponderance of the evidence. (As to overwhelming preponderance of the evidence, see King v. King, 150 Tex. 662, 244 S.W.2d 660.) The judgment of the trial court was reversed and the cause remanded for another trial. 363 S.W.2d 479.

In his application for writ of error, the petitioner takes the position that as Buck was actually a maker of the note as distinguished from an endorser or one signing in some other capacity than a maker, he is entitled to sue Buck without joining the other co-maker, Shine, even though Buck may have signed the note as an accommodation to Shine and both Reed and his assignor, Stelfox, had knowledge of this fact.

There are Texas authorities which so hold.

In Ritter v. Hamilton, (1849) 4 Tex. 325, Mr. Justice Lipscomb writing for the Court held that even though Hamilton had signed a promissory note as an accommodation to Vining, he could be sued without the joinder of Vining. It was said that:

“It was the bill of each of them, and on which the payee could maintain an action against them jointly or against any one of them. They are in law all principals.”

The holding of the Court is brought sharply into focus by the dissent of Chief Justice Hemphill who stated his belief “that when a party is a surety to a note, he must be sued as a surety, whether it appear on the face of the note that he is a surety or not.”

In Ennis and Reynolds, Administrators, v. Crump, (1851) 6 Tex. 85, the Court in an opinion by Mr. Justice Wheeler affirmed the holding of Ritter v. Hamilton. In this case, Chief Justice Hemphill noted that although he had not concurred in the holdings of Ritter v. Hamilton and the earlier case of Scott v. Dewees, 2 Tex. 153, he nevertheless recognized that “those decisions have settled the law for the Court,” and he did not “feel authorized to dissent further or depart from the rules established by those cases.”

In Head v. Cleburne Building and Loan Ass’n, Tex.Civ.App. (1893) 25 S.W. 810, no wr. hist., the Court said:

“The obligation being joint and several, it is well settled that defendants cannot plead that they are sureties, for the purpose of avoiding suit without their co-obligor Pearson being joined. To the plaintiff, they are all principals. Ritter v. Hamilton, 4 Tex. 325; Lewis v. Riggs, 9 Tex. [164] 165; McDonald v. Holt, 1 White & W.Civ.Cas.Ct. App. 1014; Ennis v. Crump, 6 Tex. 85.”

The question is one of parties. The cases cited by petitioner stand for the proposition that when one ostensibly contracts as a principal, he may be sued as such without joining another in the suit who likewise contracted as a principal, even though in truth and in fact, he is an accommodation maker for the other and this circumstance is known to the payee in the note.

As noted by the Court of Civil Appeals these cases have never been overruled, but likewise they have not been cited in recent years. Because of this latter circumstance, the Court of Civil Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away. Perhaps a re-examination of the holdings of the cases mentioned is called for, but Ritter v. Hamilton and Ennis v. Crump are decisions of this Court and unless there is some good reason for overruling them, they should not be disregarded.

As indicated above, we regard the question as being one of procedure relating to necessary parties, and have come to the conclusion that the greater good will be served by adhering to the rule of Ritter v. Hamilton than in departing therefrom.

The petitioner urges that there are sound policy reasons why a distinction should be made between an accommodation maker and an accommodation endorser or guarantor. The holder of a note is interested in payment. He may make various contracts with an accommodator before he advances his money or passes title to an article in a sale. Where the accommodator joins with the party accommodated and agrees that “I, we, or either of us agree to pay,” there is no reason to say that the agreement is something different from what it plainly says on the face, namely, that both makers are jointly and severally liable on the obligation and that consequently the payee or his assignee may sue either or both of the makers on the obligation. While as between the accommodator and the one accommodated, the relationship of principal and guarantor may exist, the ac-commodator did not contract with the payee of the note in the capacity of a guarantor or surety. He contracted as a principal and the circumstance that the payee may know of the relationship between the ac-commodator and the one accommodated, would not affect the legal relationship between payee and the accommodator which is that of principal and creditor because the accommodator contracted in the capacity of a maker.

From a procedural standpoint, the rule is highly practical which permits a note creditor to sue a debtor in the contractual capacity which the debtor assumed at the time the obligation was made. Substantial fact issues may develop in cases similar to this, where one signing as a maker claims to be a surety. Examples of these questions may be given: Is the holder of the note a holder in due course? Is the person who signed as a maker actually a guarantor or surety? It is not an efficient procedure which requires a determination of fact issues in order to decide a problem of parties. In some instances, the settlement of such issues cannot be avoided, but in the circumstance now under consideration, it may be avoided — and without serious detriment to the accommodation maker. He may bring the principal debtor into the suit if this may be accomplished without an unreasonable delay of the case, or he may file an independent suit against the principal to recoup the loss occasioned by his being forced to pay the obligation.

We do not regard the later case of J. I. Case Threshing Machine Co. v. Howth, 116 Tex. 434, 293 S.W. 800, as overruling or modifying Ritter v. Hamilton. In Howth, the Court discussed at some length the question of whether J. I. Case Threshing Machine Company was a holder in due course and held that one “who is an immediate party to a negotiable note on its original completion, is not intended to have the rights of 'a holder in due course.’ ”

In the present case, the trial judge found that Reed was not a holder in due course. He stood in the shoes of Stelfox, the payee in the note. However, if the original payee be entitled to recover on the note in a suit against Buck alone, then Reed, the assignee of the note, could likewise recover.

It was further held in the Howth case that:

“A complete defense to the suit of a holder of a nonnegotiable note in behalf of an accommodation maker would be established by his pleading and proving that the holder of the note had made a binding agreement with the principal obligor to extend the note for a definite time, with knowledge of the status of the accommodation maker and without his consent.”

The Court was obviously speaking of a plea in bar — an extension of payment which was not consented to by the obligor secondarily liable upon the note. The right of a surety to plead and prove any defense he might have to the suit on a note is well recognized in this State. Brinker v. First National Bank, Tex.Comm. App., 37 S.W.2d 136, following J. I. Case Threshing Machine Co. v. Howth, supra. The defense of an unauthorized extension of the time of payment of an indebtedness is available to a party secondarily liable (as between those bound to pay the note) although he actually signed as a maker. But the cases so holding are not contrary to Ritter v. Hamilton, which is essentially a decision relating to parties and procedure and not to pleas in bar and defenses in toto or pro tanto.

We hold that when a party signs a note in the capacity of a maker, the payee (or one standing in the shoes of a payee) may sue such maker singly and proceed to judgment upon the note without joining in the suit another or others who may also appear upon the note as co-makers. If in truth and in fact one of the co-makers stands in the relationship of a surety to another co-maker, the burden evolves upon the one claiming a surety’s rights to set up those rights by proper pleading and bring into the suit such other parties as may be required to afford him appropriate relief. Rules 30, 31 and 32, Texas Rules of Civil Procedure. We do not have before us a case in which a party defendant signed a negotiable instrument which shows upon its face that he signed in some other capacity than that of a maker.

The wording of Section 29 of the Uniform Negotiable Instruments Act (Article 5933, § 29, Vernon’s Ann.Tex.Civ. Stat.) indicates that one who contracts as a maker is presumed liable upon a promissory note even though he is an accommodation party and this fact is known to the payee of the note or a party holding under the payee. Section 29 provides that:

“An accommodation party is one who has signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”

Cases from other American jurisdictions support the proposition that when one signs as a maker, he may be sued as such, although he is an accommodation maker and the party accommodated is not made a party to the suit. In Peoples’ Finance & Thrift Co. of Portersville v. Moon et al., 44 Cal.App.2d 223, 112 P.2d 24, the Court of Appeals said:

“Most of the points raised by the appellant depend upon his contention that since he signed the note for the accommodation of Moore, which fact was known to the respondent, he thereby became a surety on the note rather than a comaker thereof and that as such surety he was released from liability by the failure of the respondent to collect the amount due from Moore’s estate. This contention requires little consideration. This was a joint and several note and the appellant was an accommodation party and accordingly liable as one of the makers thereof.”

At times, the party accommodated is not even a party to the negotiable instrument. Crawford v. Austin, Tex.Civ.App., 293 S.W. 275, wr. dis. In such a case even though the payee named in the note or check knows that the maker is an accommodated party, he may nevertheless sue such party without joining any other person. In Schwenker v. Teasdale, 206 Wis. 275, 239 N.W. 434, the court said:

“One may be an accommodation party on a note without receiving value therefor and solely for the purpose of lending his name to some other person and be liable on the instrument to a holder for value, and this notwithstanding such holder at the time of taking the instrument knows him to be only an accommodation party. The purpose of the note was understood by appellant. Under the evidence, there can be no question about the validity, and, so far as the maker is concerned, his agreement is that evidenced by the note and is binding upon him.”

On principle it is difficult to distinguish between a case where the actual borrower is not a party to the note and one where he is. The cases do not hold that because a lender knows that the money advanced upon a promissory note will be used by a person who is not a party to the note and not by the maker of the note, the lender, in case of default, must sue the actual beneficiary in the transaction which gave use to the note. Similarly, when the accommodating party signs as a maker together with a comaker who is the actual beneficiary, no good reason exists why he should not be sued in the capacity which he voluntarily assumed. The relation is contractual and one which free contracting parties may determine by their agreement.

A similar rule is applicable when a maker asserts that actually an indorser is primarily liable upon a negotiable instrument. In Home Savings Bank of Davenport v. Kelley, 205 Iowa 514, 218 N.W. 288, the defendant as a special defense pleaded that he had executed the note sued upon as am accommodation to P. F. McCarthy, the in-dorser on the note; that this circumstance-was known to the plaintiff, but that McCarthy had not been made a party to the suit. This special defense was held subject to demurrer and the defendant was held accountable as a maker.

The authorities seem to agree that an accommodation maker is primarily liable upon the note signed by him insofar as a holder for value is concerned, even though such holder knew that one maker was in the position of a surety as between himself and the other makers. 11 C.J.S. Bills and Notes, § 739, p. 289. In fact such knowledge would not in itself prevent a party acquiring the note from being a holder in due course as well as a holder for value. In American Jurisprudence, it is said that:

“Under the provisions of the Uniform [Negotiable Instruments] Act, an accommodation maker is deemed primarily liable to a holder for value, and the fact that the holder knew at the time of taking the instrument that such a maker was one for accommodation only does not prevent the holder from taking the instrument as a holder in due course.” 8 Am.Jur. 209, Bills and Notes, § 457.

Parties to a negotiable instrument are generally held to be liable in the capacity in which they sign the instrument and suable accordingly. Of course, as above pointed out, where the payee (or one holding under him with knowledge of the fact) knows that one of them signed as an accommodation to the other and that as between the makers themselves one is secondarily liable, he cannot change the agreement or increase the burden of the accommodation maker by extending the time of payment, releasing security and the like. However, pleas in bar are not involved in the question of whether an accommodation maker may be sued by the holder of a negotiable instrument without joining the other comaker in the suit. On the point, we adhere to the rule of Ritter v. Hamilton.

As respondent was the prevailing party in the Court of Civil Appeals, it becomes our duty to examine his brief filed in that court to ascertain whether or not there exists any other grounds than those mentioned in the opinion of the Court of Civil Appeals upon which the judgment of the court may be affirmed.

The respondent as defendant in the trial court pleaded that the note sued upon was given in payment for a tractor; that Reed was actually the owner of the tractor and Stelfox was his agent; that Stelfox in selling the tractor had made various and sundry misrepresentations with reference thereto; and that there was a total failure of consideration for the note sued upon. Defendant tendered the tractor back to Reed and prayed that Reed take nothing by his suit on the note.

As it conclusively appears from the evidence that the tractor, had some value when it was sold, respondent’s case based upon a total failure of consideration cannot be sustained. Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97. (The holding in Super-Cold with regard to a total failure of consideration was not affected by this Court’s later decision in Dallas Farm Machinery Co. v. Reaves, 158 Tex. 1, 307 S.W.2d 233.) There are no allegations as to the tractor’s value in its condition at the time it was delivered, so that damages could be measured under some theory of fraud or breach of warranty. The most that can be said of the answer is that, despite the failure to pray for specific equitable relief, there was an assertion that the note sued upon should be cancelled upon a tender of the tractor to Reed. This is an affirmative defense and the burden rested upon the respondent to establish the various elements thereof. The trial court by specific fact findings held against the respondent and we have no hesitancy in declaring that such findings have support in the evidence.

The net effect of a number of these findings was simply that respondent had failed to establish various elements of his pleaded defense. Respondent’s brief as appellant in the Court of Civil Appeals contained twenty-two points of error. All were argued together. However, a number of the “no evidence” points attacking specific findings were followed by points asserting that such findings were “against the overwhelming weight and preponderance of the credible evidence as to be clearly wrong and unjust.” The Court of Civil Appeals did not rest its decision upon nor discuss respondent’s affirmative defense, hence that court did not pass upon these “overwhelming preponderance of the evidence” points which are beyond this Court’s jurisdiction. For that reason this cause will be remanded to the Court of Civil Appeals for further consideration.

In order that our holdings may be more readily understood by that court, we will pass specifically upon all of the respondent’s points in his brief filed in the Court of Civil Appeals which raise questions of law within this Court’s jurisdiction:

Points Nos. 1 and 2 are overruled because they are technically insufficient in that they are too general.

Points Nos. 3, 5, 7, 9, 11, 13, 15 and 17 are “no evidence” points and overruled because they are wanting in merit.

Points Nos. 19 and 20 (attacking the finding that the residence of Glen Malcolm Shine was unknown and that H. M. Reed had used reasonable diligence to ascertain the residence of Shine but could not do so) are overruled for the reason that such findings are immaterial to the controlling issues in this case. The reasons for this holding are set out in the forepart of this opinion.

"Points Nos. 20 and 21 purport to attack the conclusion of law that Buck is indebted to Reed in the sum of $15,370.03. These points are too general and technically insufficient to raise a specific question of law.

The remaining points, Nos. 4, 6, 8, 10, 12, 14, 16 and 18 (all “overwhelming preponderance of the evidence” points) have not been determined by us because of our lack of factual jurisdiction.

The judgment of the Court of Civil Appeals is reversed and this cause remanded to that court for further consideration as herein indicated.

      . This finding of insolvency was not attacked by a specific point in the Court of Civil Appeals. In view of our holdings, however, we need not discuss the propriety of the appellate court’s action in setting aside this finding of the trial court.

      . Scott v. Dewees holds that where the principal is deceased, the surety may be sued alone. The case is hardly in point on the question now before us.

      . Prior to the present case, the last time Ritter v. Hamilton seems to have been cited was in 1897 by the San Antonio Court of Civil Appeals in Southern Building and Loan Ass’n v. Skinner et al., 42 S.W. 320, no wr. hist., in which it was said:
      “It is contended by Skinner that no judgment could have been rendered against him without Shoff having been made a party defendant, or an allegation that he was insolvent, or beyond the jurisdiction of the court; Skinner being merely the accommodation maker of the notes for Shoff, of which the appellant association had notice when it acquired the paper. There is clearly no merit in this position. There was no plea touching the nonjoinder of Shofi:. Besides, upon the notes Skinner appeared in the capacity as maker, and Shoff as payee and indorser. Ritter y. Hamilton, 4 Tex. 325.”


author: McDonald, judge.

text:
    Ellus Franklin BUSH, Appellant, v. The STATE of Texas, Appellee.
    No. 35836.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied Oct. 16, 1963.
    L. Eugene Cunningham, Houston (On Appeal Only) for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is a conviction for the misdemeanor offense of driving while intoxicated, with punishment assessed at a fine of $150 and ten days in jail.

A formal bill of exception was presented to the trial court, who refused to approve the bill for the reasons therein stated. The appellant took no further action and neither accepted nor agreed to the court’s reasons for refusing the bill. No bystanders’ bills of exception were filed.

The formal bill of exception is therefore not properly before this court for consideration. Art. 760d, Vernon’s Ann.C.C.P.; Campos v. State, Tex.Cr.App., 356 S.W.2d 317; Cook v. State, Tex.Cr.App., 356 S.W.2d 149; Rogers v. State, 170 Tex.Cr.R. 257, 340 S.W.2d 300; Thompson v. State, 170 Tex.Cr.R. 258, 339 S.W.2d 209.

The record on appeal contains no statement of facts.

All proceedings appear to be regular and nothing is presented for review.

Finding no reversible error, the judgment is affirmed.


author: DICE, Commissioner. WOODLEY, Presiding Judge McDONALD, Judge

text:
    Jack MACKIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35433.
    Court of Criminal Appeals of Texas.
    April 3, 1963.
    Rehearing Denied. June 5, 1963.
    .Second Motion for Rehearing Denied Oct. 16, 1963.
    Irvin W. Shelman, Fort Worth (on appeal only), for appellant.
    Doug Crouch, Dist. Atty.,’ Albert F. Fick, Jr., Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder with malice; the punishment, seven years in the penitentiary.

The State’s evidence shows that on the night in question the deceased and his companion, Don Wingo, were visiting and drinking beer in various bars and lounges in the city of Fort Worth. Around 11:30 o’clock, p. m., they arrived at the 312 Club on East Lancaster Street. Shortly after they entered the place appellant and James Clardy came to the table where they were seated and appellant propounded a derogatory question to Wingo. The deceased arose from the table and Clardy grabbed him around the arms. The owner of the place then had appellant and Clardy return to the table where they had been sitting. The deceased and Wingo then went outside and got in their car. After Wingo backed the car out in the street, appellant and Clardy came outside and began “hollering” at them. The deceased “hollered” back. A shot was fired.

Wingo testified that, at such time, he saw appellant standing outside the place, shooting at him and the deceased. Wingo then drove west on Lancaster Street, with the deceased sitting in front on the passenger side. While he was driving in the vicinity ■of the Anchor Motel, appellant and Clardy drove up alongside his automobile on the right in a Buick automobile. Clardy was driving the vehicle and appellant was seated in front on the passenger side. Wingo testified that at such time he saw a gun— described as a chrome-plated revolver — resting on the window sill of the Buick and pointing toward his car, and that he slowed down. The Buick likewise slowed down. He then proceeded to speed up and the Buick speeded up. While the two cars were maneuvering for position, there was cursing and arguing between appellant and Clardy and the deceased. On the third •occasion when both cars had slowed down and were practically parallel with each other a shot was fired from the Buick and the ■deceased fell to the floor board. Both cars then speeded up, the Buick turning to the right off Lancaster and Wingo proceeding west toward the downtown section of Fort Worth.

Shortly thereafter, Wingo was stopped by an officer and taken to the police station for ■questioning. The deceased was carried to a hospital and was dead from a single gunshot wound to the head, caused by a .38 calibre bullet which was removed from the brain. On the question as to who fired the fatal shot Wingo testified that while he did not lenow who fired the shot he did observe before the shooting that Clardy had a handage on his right hand but that appellant had none on his hand and that there was no bandage on the hand which held the gun he saw on the window sill of the Buick from which the shot was fired.

J. T. Thames, the proprietor of the Anchor Motel, and a maid, Annie May Figures, testified that they witnessed the shooting from in front of the motel. Thames testified that before the shot was fired he observed the passenger’s arm in the Buick “stretched” out, between the steering wheel and windshield, toward the other car. The witness Figures stated that she observed the passenger move his hand “over across the car.”

Appellant did not testify or call any witnesses in his behalf.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence. Under the court’s instructions, the jury were authorized to convict appellant upon their finding from the evidence beyond a reasonable doubt that he killed the deceased by shooting him with a gun, or that he did act together with some other person or persons in killing the deceased, or that some other person or persons killed the deceased but that appellant was present and, knowing the unlawful intent of such person or persons, aided by his acts or encouraged by his words or gestures such other person or persons in killing the deceased.

Appellant’s first contention on appeal is that the evidence is insufficient to support the conviction.

Appellant insists that this court treat the case as one showing a reasonable doubt, because the state did not introduce in evidence a res gestae statement made by the witness Wingo after the shooting, in which he told the police that it was Clardy who shot the deceased.

Reliance is had by appellant upon the rule that where the state relies upon circumstantial evidence for a conviction and the evidence is obviously weak and the record affirmatively reflects that there was testimony available to the state which would throw additional light on the facts — and which the state did not introduce or satisfactorily account for its failure to do so— this court will treat the case as one evidencing a reasonable doubt as to the sufficiency of the evidence. See: 24 Tex.Jur.2d 427, Sec. 745; Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856; Vasquez v. State, 145 Tex.Cr.R. 376, 167 S.W.2d 1030; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251.

While the rule relied upon is recognized by this court, it clearly has no application here, under the facts presented. The purported res gestae statement which appellant says the state failed to introduce in evidence was shown to have been made by the witness in a written statement which he made and signed after being questioned at the city hall. Such statement was clearly not a res gestae statement that would have been admissible as such. Furthermore, the witness testified before the jury that, while he did tell the officers that it was Clardy who shot the deceased, he had concluded, upon reflection, that he did not know who fired the shot.

Appellant complains of certain jury argument of the district attorney. His objections to the argument are not presented by formal bills of exception but as informal bills of exception, under the provisions of subsection (c) of Sec. 2 of Art. 759a, Vernon’s Ann.C.C.P.

In his closing argument to the jury, District Attorney Crouch made a certain statement to the jury, and the following transpired :

Argument by Mr. Crouch:

“Now, a while ago, when Mr. Mays said that he expected Andy Bryan to get up here and say ‘Convict’ because that was his job as Prosecutor-that’s exactly his job as a Prosecutor, because he is prosecuting the guilty. We do not prosecute the innocent.
[“Mr. Mays: Of course, Your Hon- or, — Wait just a minute.]
“Mr. Crouch: We don’t now and we never—
[“Mr. Mays: Pardon me just a minute. We except to that argument, Your Honor. That’s very objectionable, and at this time we ask the Court to instruct the jury not to consider that. You heard it, didn’t you?]
[“The Court: I will instruct the jury that they are the judges of the facts in this case, and shall find the facts as they are.]
[“Mr. Goldsmith: Note our exception.]”

Appellant insists that such argument was manifestly improper because it constituted an assertion by the district attorney as a fact that his assistant was prosecuting the guilty and that he, or his assistants, did not prosecute the innocent. Reliance is had upon Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159, which denounced as improper a statement by the prosecuting attorney to the jury that he would not have filed charges against the accused if he had not known that he was guilty.

We need not pass upon the contention that such argument constituted reversible error, in view of the argument later made by the district attorney, to which appellant made no objection, when he stated:

“We do not prosecute the innocent and we never shall as long as I am district attorney.”

Later in his argument, District Attorney Crouch made the following statement to the jury:

“Now, I want to go on further, and say that under the charge of principals, The State makes no contention who fired the shot. I just merely say that if I were to make a decision as to the best of my judgment, I would say it was fired by this defendant. But it doesn’t make any difference, because there’s evidence aplenty that they were acting together in concert, because one man was driving, the other one was firing, or either one furnished the gun and the other fired so he could drive — ”

Appellant made the following objection, which was by the court overruled:

[“Mr. Goldsmith:] Just a minute, Your Honor. We’re going to object to Mr. Crouch stating as a fact that someone furnished a gun'. He knows there’s no testimony whatsoever in this record that anybody furnished anybody a gun.”
Mr. Crouch then stated:
“Yes, I believe it, that Mr. Mackin furnished the gun, to either use himself, or to let Clardy use it. Makes no difference * *

We are unable to agree with appellant’s contention that the district attorney’s statement was outside the record. The argument was clearly a reasonable deduction from the evidence and does not present error.

The judgment is affirmed.

Opinion approved by the court.

WOODLEY, Presiding Judge

(concurring).

The transcripts of arguments were filed in the trial court and in this Court without having been approved by the trial court, or agreed to by counsel for the state and the appellant or his counsel.

If such transcripts are before us it is by virtue of an order of the trial judge made after this appeal was submitted and argued in this Court, but before an opinion had been handed down, approving them and ordering them filed; and that portion of Art. 759a, Sec. 4, V.A.C.C.P., providing that the approval of the statement of facts after the expiration of 90 days “ * * * shall be sufficient proof that the time for filing was properly extended.”

I would not extend the rule announced in Kinnebrew v. State, Tex.Cr.App., 168 Tex.Cr.R. 198, 324 S.W.2d 554, and reaffirmed in Lookabaugh v. State, Tex.Cr. App., 352 S.W.2d 279.

ON APPELLANT’S MOTION FOR REHEARING.

Rehearing denied.

McDONALD, Judge

(dissenting).

During the closing arguments of the state before the jury, the following transaction occurred:

“Now, a while ago, when Mr. Mays said that he expected Andy Bryan to get up here and say ‘Convict,’ because that was his job as a Prosecutor — ■—that’s exactly his job as a Prosecutor, because he is prosecuting the guilty. We do not prosecute the innocent.
“Mr. Mays: Of course, Your Honor —Wait just a minute.
“Mr. Crouch: We don’t now and we never—
“Mr. Mays: Pardon me just a minute. We except to that argument, Your Honor. That’s very objectionable, and at this time we ask the Court to instruct the jury not to consider that. You heard it, didn’t you?
“The Court: I will instruct the jury that they are the judges of the facts in this case, and shall find the facts as they are.
“Mr. Goldsmith: Note our exception.
“Mr. Crouch: We do not prosecute the innocent and we never shall as long as I am District Attorney.”

I feel that error was properly preserved and these statements by the district attorney require reversal of the judgment

The juxtaposition of the statement, objection, and subsequent statement require this be considered as one transaction, without the need for a repetition of the objection. The purpose of the objection is to put the court and the offending party upon notice of the error allegedly committed, and to give them a chance, where possible, to correct it. This was done in the present case, and to require an objection to the subsequent statement, which was apparently made before the defense counsel’s words had stopped sounding, is to place an unreasonable burden upon the accused and to violate the intent of the legislature as manifested in Art. 759a, Vernon’s Ann.C.C.P., wherein they said: (in Sec. 2)

“(b) Formal exceptions to rulings on evidence, opinions or other actions of the court * * * are unnecessary * * * it is sufficient that a party, at the time the ruling * * * is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and if a party has no opportunity to object to the ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”

The rule as to evidence in criminal cases is quite clear, and I do not here depart from it, though the civil rule is to the contrary, both in this jurisdiction and in others. See: Fort Worth & Denver C. Ry. Co. v. Thompson, 75 Tex. 501, 12 S.W. 742, 743; Fort Worth & R. G. Ry. Co. v. Jones, 38 Tex.Civ.App. 129, 85 S.W. 37; J. I. Case Threshing Mach. Co. v. O’Keefe, Tex.Civ.App., 259 S.W. 222, 226; Long v. Galveston Electric Co., Tex.Civ.App., 59 S.W.2d 228; Crispi v. Emmott, Tex.Civ.App., 337 S.W.2d 314, 318; Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203; Mountain States Creamery Co. v. Tagerman, Cal.App, 237 P.2d 532, 39 Cal.2d 355, 246 P.2d 21 (Calif.); State v. Monninger, 182 N.E.2d 426 (Ind.); Gibbs v. Terry, 281 S.W.2d 712 (Ky.); Jakeway v. Allen, 226 Iowa 13, 282 N.W. 374; Bennett v. Gusdorf, 101 Mont. 39, 53 P.2d 91; Schears v. Missouri Pac. R. Co., 355 S.W.2d 314 (Mo.); Public Service Co. of N. H. v. Chancey, 94 N.H. 259, 51 A.2d 845; In re Ivory, 259 App.Div. 1046, 21 N.Y.S.2d 6; Citizens Bank of Nevada v. Robison, 74 Nev. 91, 323 P.2d 705; Webber v. Yaden, 373 P.2d 1007 (Ore.); Herstein v. Kemper, 19 Tenn. App. 681, 94 S.W.2d 76. See: 5 Am.Jur.2d —Appeal and Error, Sec. 626.

I do say that a common sense rule should be followed and that where transactions, are so interrelated and the ruling clear,, error should not be presumed to be waived.

Additionally, there is authority for consideration of this point, even though no. objection had been made. The holdings by both this Court and the civil courts of this-state reflect that if the error is so prejudicial that an instruction could not cure-the error — as where some mandatory provision of the statutes has been violated or some new and harmful fact is injected into-the case, the courts will consider the argument complained of and order a reversal of the case. King v. State, 156 Tex.Cr.R. 508, 243 S.W.2d 846; Ouellette v. State, 166 Tex.Cr.R. 328, 314 S.W.2d 106; Wiley v. State, Tex.Cr.App., 350 S.W.2d 22; Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054; Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex.Civ.App.).

In Brister v. State, 97 Tex.Cr.R. 395, 262 S.W. 82, the court was presented with the following argument:

“ T say to you, on my oath as district attorney, that there never was tried in this courthouse or any other courthouse-a man more guilty than Henry Brister is in this case. I say to you, on my oath as district attorney of this district,, that he is guilty, and that I believe him-to be guilty, and you will not be doing your duty as jurors under your oaths in upholding the hands of your officers if you do not convict him.’ ”

The trial court orally instructed the jurors, to disregard the statement, yet this Court reversed the judgment and said:

“The respect accorded to the office of district attorney by jurors in every case and to this district attorney would make us hesitate in any case before affirming a judgment when there appeared in the record a statement such as just quoted. We need not comment upon it. A statement made by a prosecuting officer that a man is guilty within his knowledge and belief, unless predicated on his opinion from the evidence, is bad enough; but when a statement is made with distinct reference to and under the oath of office, we believe the matter to be so far erroneous as that the instruction of the court to the jury not to consider it could not remove or prevent the injurious effect of such statement upon the jury.”

In Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632, a private prosecutor argued as follows to the jury:

“ T tried this case twice. I had to convince myself, beyond a reasonable doubt, that this lady was guilty beyond a reasonable doubt, before I could consent to help the State.
* * ⅜ ⅜ * *
“ ‘If we have convinced you in this case like we have convinced ourselves of the guilt of the defendant, you ought to have no trouble in arriving at a verdict.’ ”

The trial court again orally instructed the jury to disregard the remarks, and this Court again reversed the conviction, saying:

“The impropriety of counsel in argument putting before the jury his opinion of guilt or innocence of accused on trial has been declared repeatedly and consistently, as is reflected from the opinions of the court from the beginning of its history.
* * * * * *
“ * * * We have found no reported case in which the opinion of counsel expressed to the jury was couched in similar language to that employed in the present case. It must be admitted that it went further than a mere expression of opinion based upon facts developed before the jury. It carried with it the expression of an abiding conviction of appellant’s guilt, based upon preinvestigation by counsel. Such an opinion would or would not have weight with the jury in proportion as they did or did not have confidence in the judgment of counsel giving the opinion. In a case where the issue of the guilt or innocence of the accused was closely drawn, it might sway the balance against the accused. Necessarily, the effect of such opinion could not be demonstrated, and would be speculative. Whether the effect could be withdrawn by prompt action of the court, as was attempted in this instance, is likewise speculative, depending upon the case in its entirety.”

I do not construe the holding in Rancier v. State, 124 Tex.Cr.R. S2S, 63 S.W.2d 697, as vitiating the language used in Long, supra.

Possibly the best summation on this point is found in Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159. The prosecutor, there, said:

“ ‘I would not have filed the charge against this man if I had not known that he was guilty.’ ”

This Court, in reversing, noted:

“Such argument is never proper.”

See, also, the following cases which, among others, would support the findings: Hardy v. State, Tex.Cr.App., 13 S.W. 1008; Black v. State, 79 Tex.Cr.R. 628, 187 S.W. 332; McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073; Dowd v. State, 104 Tex.Cr. R. 480, 284 S.W. 592; Rushing v. State, 139 Tex.Cr.R. 502,141 S.W.2d 607; Jones v. State, 151 Tex.Cr.R. 115, 205 S.W.2d 590; Alford v. State, 158 Tex.Cr.R. 632, 258 S.W.2d 817; Hickerson v. State, 162 Tex.Cr.R. 446, 286 S.W.2d 437. And see the annotation in SO A.L.R.2d 766, wherein the holding's throughout this country are collected.

Thus, here, the argument, as demonstrated by Long and Brister, supra, is so prejudicial that its effect could not be withdrawn from the jury. Additionally, the argument was objected to in a manner which the writer feels properly preserves the error, and I thus feel that the case should be reversed.

I respectfully enter my dissent to the overruling of appellant’s motion for rehearing without written opinion. I would grant the motion and reverse the judgment.


author: WOODLEY, Presiding Judge.

text:
    Vance E. HANCOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 35910.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1963.
    Richard E. McDaniel, Center, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

After his conviction for drunk driving was affirmed and while the appellant’s motion for rehearing was pending, the appellant’s sworn motion requesting that the appeal be dismissed was filed in this Court.

The motion is granted; the opinion and order affirming the conviction is set aside, and the appeal is dismissed.


text:
    Ex parte J. Loyd PARKER, Jr.
    No. 36021.
    Court of Criminal Appeals of Texas.
    June 29, 1963.
    Rehearing Denied Oct. 16, 1963.
    George Cochran, Fort Worth, Charles W. Tessmer, Dallas, for appellant.
    Doug Crouch, Dist. Atty., Fort Worth, J. Elwood (Dutch) Winters and Albert F. Fick, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order denying bail to defendant in a murder case.

The evidence introduced at the hearing is deemed sufficient to justify the trial judge in finding that the appellant shot his father three times in the back, thereby causing his death.

No evidence was offered showing any justification or excuse for the killing other than insanity of the appellant at the time.

Under the record, a doubt or issue as to the admissibility of appellant’s confession is not controlling. Ex parte Langston, 153 Tex.Cr.R. 360, 220 S.W.2d 468. Ex parte Roark, 124 Tex.Cr.R. 374, 61 S.W.2d 833.

The judgment of the trial court denying bail is affirmed.