author: WOODLEY, Presiding Judge.

text:
    Fred Arispe CRUZ, Appellant, v. STATE of Texas, Appellee.
    No. 33770.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Appellant represented himself.
    Charles J. Lieck, Jr., Cr. Dist. Atty, Jack Paul Leon, Harry A. Nass, Jr., Asst. Cr. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery; the punishment, 35 years.

The indictment alleged that appellant assaulted and robbed Herbert G. Cannon of a wallet, on or about April 20, 1960.

The State’s evidence shows that Cannon was working part time at the Lone Star Ice and Food Store an Pleasanton Road, in San Antonio. John A. Sonnier, the night manager, was present.

Mr. Cannon testified that he and Mr. Sonnier closed the place of business about 11 P.M. on April 20, 1960, and while they were in the process of taking the money out of the cash register, appellant came to the front door; that he indicated to appellant by motion that the place was 'closed; that he and Mr. Sonnier placed the money in the safe and left by the back door. The door locked automatically and neither he nor Mr. Sonnier had a key with which to re-open it.

According to the testimony of Cannon and Sonnier, appellant and another Latin American ran up to them at the back of the building and appellant, with a pistol in his hand, told Cannon: “Hold it right there. Give me the money.”

After they explained that they had no key to the building, appellant and his companion searched them and attempted to open the door with the keys Cannon and Sonnier had. They then took Cannon’s billfold or wallet and what money he had in his pockets and ordered Cannon and Sonnier to lie down on the grass and remain there about 20 minutes.

Appellant and Robert Baray Lopez were arrested shortly after 9 P.M. on April 22, 1960, by Officer Tackett who testified: “They were sitting together on the curb.” Two pistols were found on the person of Lopez.

The undisputed evidence, including the testimony of appellant, shows that Herbert G. Cannon and John A. Sonnier identified . appellant ⅛ a. police linepp as one: of the robbers.. Both Cannon and Sonnier identified him at the trial. ;

Appellant’s testimony and that of .his witnesses was to the effect that he was with Mary Castro and Anita Mora on the night of April 20, 1960, and they went to the carnival. Pie testified that he was not at the Lone Star Ice Station on Pleasanton Road on April 20, 1960, and had never been there; that he had never seen Mr. Cannon or Mr. Sonnier until he saw them at the police lineup when they picked him out.

On cross-examination appellant admitted that, while he was awaiting trial in this case, he escaped from a deputy sheriff who had him handcuffed to a chair in the courthouse, and was recaptured some three hours later.

Appellant testified on cross-examination that he had twice been convicted of possession of marihuana.

Appellant also testified that he did not even know Robert Baray -Lopez and was not with him, though they were in the same location when arrested, and that he had not been with him.

The jury rejected appellant’s claim of alibi and resolved the issue of his guilt against him. The evidence is sufficient to sustain their verdict. Ramirez v. State, Tex.Cr.App., 335 S.W.2d 228; Easley v. State, Tex.Cr.App., 336 S.W.2d 428, and Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829, sustain our holding.

Appellant was dissatisfied with the services of his counsel and it is apparent that in preparing his appeal he has not followed the advice of counsel familiar with proper procedure.

We have examined the many complaints he has attempted to present. As applied to the record herein, no merit is found in any of them.

Appellant is in no position to complain that he was charged and found guilty of ordinary robbery whereas the evidence was that firearms were used. See Carr v. State, 158 Tex.Cr.R. 337, 255 S.W.2d 870.

Robert Baray Lopez was not a competent witness in behalf of appellant, he having been indicted also for the robbery, and the trial court did not err in declining to have him brought from the penitentiary on a bench warrant, as appellant requested.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Ex parte Travis CARROLL.
    No. 33902.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    Wear & Cornett by Frank D. Wear, Paris, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal from an order issued in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Kansas.

The executive warrant of the Governor of Texas, which appears regular on its face, and the accompanying and supporting documents were introduced in evidence. These documents include, among others, the requisition, copies of the complaint signed before a magistrate, the affidavit of the injured party, and the warrant. They made out a prima facie case that the accused is a fugitive from justice and subject to extradition. Ex parte Gesek, 164 Tex.Cr.R. 652, 302 S.W.2d 417.

The appellant did not testify or offer any evidence.

Appellant contends that the evidence is insufficient to show that he is charged with a crime against the laws of the State of Kansas, In support of his contention, he points out that the Kansas requisition recites that he is charged with “the Crime of Issuing a No Funds Check”, and that there is no such offense in Texas.

There is no showing of the laws of Kansas. In the absence of a showing that they are different to those of Texas, it will he assumed that they are the same. The appellant insists that since Art. 567b, Sec. la, Vernon’s Texas P.C., makes it an offense to give a check without sufficient funds with intent to defraud, and the Kansas complaint not alleging that he gave the check “with intent to defraud”, no crime is charged in this cause, and that he is entitled to discharge.

The Kansas complaint accompanying the record charges that the appellant did unlawfully, wilfully, and feloniously draw, make, utter, issue, and deliver to the injured party a certain described check. It further alleged that he knew at the time of the making, drawing, uttering, and delivery of said check that he had no funds or credits with the hank with which to pay the check upon presentation.

It is concluded that the allegations of the complaint are sufficient to substantially charge the appellant with issuing the check with the intent to defraud. Art. 1008a, Sec. 3, Vernon’s Ann.C.C.P.

The evidence was sufficient to authorize the trial court to conclude as he did and remand appellant for extradition.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Jessie DAGLEY, Appellant, v. STATE of Texas, Appellee.
    No. 33912.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is cattle theft; the punishment, 5 years.

The injured party Mein eke testified that he saw his seven head of cattle in his little field pasture on the Plantersville Road at 5:30 P.M. on January 13 hut that when he returned at 6:00 A.M. the following morning four of them were missing. He testified that later in the day he identified his four head of cattle at Houston Packing Company.

O. P. McGrew testified that he bought the four cattle from appellant at the Houston Packing Company at 7:30 A.M. on January 14 and that appellant gave his name as Jessie Dagley, stating that he lived at Trinity, Texas.

Sheriff Johnson testified that he found a hoot heel and a shoe impression near the pen at Meineke’s pasture, made a plaster cast of the same, later compared them with the shoes worn by appellant and found them to fit perfectly.

A check payable to “Jesse Dagley, Trinity, Texas” drawn on the Houston Packing Company dated January 14 in the sum of $570.50 and endorsed “Jesse Dagley” was introduced in evidence.

Appellant, testifying in his own behalf, stated that he had left his home in Houston to go on a date, that he returned home after midnight and was drinking coffee at 6:45 the next morning when one Jack Fussell drove up to his house and offered him $10 to sell a load of cattle which he had in a truck out in front, that he agreed to do so and went to the Houston Packing Company, where he sold the four head of cattle described by Meineke to McGrew and received from him the $570.50 check introduced in evidence, which he cashed and turned over the proceeds to Fussell less the $10 for his services and $20 on an old debt due him by Fussell. Appellant’s explanation for having given Trinity as his address was “l was fixing to go up there and go into the chicken business.” He also called his daughter and his brother-in-law, and their testimony •tended to support his claim that he had ■spent the night in question at home.

In rebuttal, the State called Jack Fussell, who testified that on January 13 he and appellant were drinking and riding around, that they turned off the road to Planters-ville where they saw a small herd of cattle, that they were able to pen four of them, that later while a train was passing nearby they cut the gap and loaded the cattle into the truck which he was driving and then proceeded to the Houston Packing Company, where appellant sold the cattle for $570 and some cents, which he and appellant divided equally. Fussell was at the time of this trial serving a term in the penitentiary for this theft.

The sole question presented for review is the sufficiency of the evidence to support the conviction. We call attention to the evidence as to the comparison of the plaster cast with appellant’s shoe plus the fact that appellant gave a fictitious address when he sold the cattle. In Donihoo v. State, 160 Tex.Cr.R. 338, 269 S.W.2d 680, we held that evidence of possesssion of recently stolen property in the hands of the accused was sufficient to corroborate the testimony of the accomplice witness.

Finding the evidence sufficient and no reversible error appearing, the judgment of the trial court is affirmed.


text:
    Charles Glenn EDWARDS, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 33707.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.

      Rex Emerson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Houston, Samuel H. Robertson, Jr., and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marijuana; the punishment, ten years.

While four police officers were executing a search warrant for a residence, the appellant arrived and stated that he lived there. They then presented him the warrant which he examined. During the search of the appellant, certain particles and dustings were removed from his shirt pocket, the pockets of the trousers he was wearing, and from two pairs of trousers in a closet. The appellant then told Officer Chavez that he would show him where he had the remainder of the marijuana. “He stated there would be four Prince Albert cans of marijuana along with a match box containing marijuana seeds”. Appellant then directed him to the bathroom where he pointed to the lower portion of the heater, which he stated would have to be removed with a screw driver. Following appellant’s directions, he found the four Prince Albert cans and a penny match box.

The evidence shows that the officers had no information as to the location of the marijuana- in back of the bathroom wall heater before the appellant told them about it and directed them to it.

A chemist .testified that the four Prince Albert cans contained a total of 160 grams of marijuana, that the penny match box contained marijuana seeds, and that the dustings taken from appellant’s clothing were particles of marijuana except for that found in one pair of the trousers.

Testifying in his own behalf, the appellant stated that he had been living at the place in question for four days at the time of the search. He denied having any knowledge of any marijuana in his pockets or in his apartment, or that he had told officers where it was and then directed them to it. He further stated that the officers beat him for about one hour trying to get him to reveal where the marijuana was located. He denied telling anyone that he went to Mexico and bought the marijuana with $500 furnished him by another person.

In rebuttal, the State offered proof that he had said that he had gone to Mexico and bought the marijuana with $500 furnished by another person, and that after he was released on bond in this case, he told Officer Strickland that all he had the marijuana for was to smoke. Proof was also offered that he had been previously convicted of three burglaries and two felony thefts.

There are no formal bills of exception.

It is contended that the court erred in permitting Officer Chavez to testify that when the appellant arrived he asked him who lived there and the appellant replied that he did, on the ground that he was under arrest.

The statement of appellant that he lived there was admissible as it was made during and coincident with the search of his house. Sewell v. State, Tex.Cr.App., 342 S.W.2d 579. Further, the appellant, while testifying, stated that he lived at said place.

Error is urged in the admission in evidence of the fruits of the search on the ground that it was obtained by virtue of a void search warrant.

Although the warrant was marked for identification, it was never introduced in evidence, hence the search warrant is not in the record and its sufficiency cannot be appraised.

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

Opinion approved by the Court.


text:
    Eugene ANDERSON, Appellant, v. STATE of Texas, Appellee.
    No. 33886.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    No attorney on appeal, for appellant.
    Edwin F. Berliner, Dist. Atty., Jack N. Ferguson, Oscar G. Galvan, Asst. Dist. Attys., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to rape; the punishment, ten years.

The prosecutrix, age 23, testified that she was watching television in the living room of her home about 10:30 P.M. and was alone, except for her baby and an eleven year old niece who were asleep, when she heard a noise and went to the kitchen to investigate. While testifying at the trial, she identified the appellant as the person who jumped her in the kitchen, struck her with a stick about five very hard blows on the head and face, knocked her to the floor, and tried to gag her by putting a cloth in her mouth. He put his knee between her legs and felt of her private parts and her breast with his hands; that when he was twisting her arm he told her to “hush up”, as she had been screaming, or he would break her arm. During this time, he ripped her Kimono and tore off one of the buttons. When she asked the appellant if he would take $10.00 and leave her alone, he said “all right”, but he again told her to hush up and continued to twist her arm while she went to a closet for her purse from which she took $10. Then appellant grabbed the money and ran out of the back door.

The prosecutrix immediately went to a neighbor’s home, reported her experience, and the police were notified. She described to the officers the person who attacked her, and although she did not know his name, she stated that she knew him by sight as he had lived in the neighborhood since he was a young boy, and then gave the name of the street where he lived. The neighbor, Mrs. Galbadon, testified that the prosecutrix was pale, scared, and bloody when she arrived at her home.

A search of the house was made by the husband of the prosecutrix and the officers immediately after the report of the attack. They found a stick and a torn handkerchief with blood spots on them and long strands of hair on the handkerchief and in the cracks of the broken stick, and also blood on the door and living room floor.

The appellant did not testify but called several witnesses who testified that he was in Juaraz and not El Paso at the time the offense was committed according to the state’s testimony. He also called other witnesses who corroborated the testimony of the alibi.

The issue of alibi raised was submitted to the jury and was resolved against the appellant.

No formal bills of exception appear in the record. The informal bills have been con- • sidered and they reveal no error.

The evidence is sufficient to warrant the jury’s finding that the appellant is guilty as charged.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    J. H. HOLLIS, Appellant, v. STATE of Texas, Appellee.
    No. 34109.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    Appellant represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

In Cause No. 11,425, in the District Court of Van Zandt County, on October 20, 1956, appellant was sentenced to serve life in the penitentiary for the offense of murder with malice. The original sentence was irregular in that it did not give' effect to the indeterminate sentence law and require appellant to serve not less than two, years nor more than life in the penitentiary.' Appellant filed a motion to enter sentence nunc pro tunc on August 25, 1959, to correct such defect. Thereafter, a bench warrant was issued and appellant returned to Van Zandt County, and a motion to'enter judgment nunc pro tunc was filed by the criminal district attorney. Order nunc pro tunc was entered'July 3, 1961, correcting the defect.

This is an appeal from the nunc pro tunc hearing.

Appellant filed a motjon for new trial on entry of the sentence nunc pro tunc, alleging numerous errors committed during the trial of the case, not on the entry of the judgment nunc pro tunc. Appellant' complains of acts during and before trial.

Appellant adduced testimony at the hearing given him by the careful trial judge on the motion for new trial, none of his allegations being supported'by any evidence. We find no merit in appellant’s contention.

The nunc pro tunc, sentence read not less than five years nor more than life. The sentence should have read and is, now reformed to read not less than two years nor more than life. Art. 775, Vernon’s Ann. C.C.P.; Jackson v. State, 136 Tex.Cr.R. 574, 126 S.W.2d 965.

We finding no reversible error. The nunc pro tunc proceedings were all regular, the sentence being reformed as above stated.

The proceedings are affirmed.


text:
    Manuel PEREZ, Appellant, v. STATE of Texas, Appellee.
    No. 33538.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.
    Moisés Vicente'Vela,'Harlingen, Garcia & Warburton, Brownsville (On Appeal Only), for appellant.
    F. T. Graham, Dist. Atty., Brownsville, •Joel William Ellis, Asst. Dist. Atty., Brownsville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Our former opinion is withdrawn.

The offense is driving while intoxicated, as a second offender; the punishment, one year in jail.

One Bill of Exception is found in the record. It certifies that the court refused to permit the defendant to change one of his peremptory challenges and strike the name of Mrs. Hardinger instead of another juror he had struck by mistake.

The record shows that counsel for the defendant made his request before the list of jurors chosen had been prepared by the clerk and, according to said counsel’s affidavit, “before either defendant or affiant had seen the list furnished said clerk by counsel for the State, and not knowing what if any strikes the State had made thereon.”

It is insisted that it was within the discretion of the court to refuse counsel’s request, and that no abuse of discretion is shown.

When appellant’s counsel made his request the lists were in the hands of the clerk but had not been brought into the courtroom or compared. ' ■ .

After said request had been denied and the list of jurors chosen had been completed, and after some of the jurors had been called, counsel for the State discovered that he had struck only six names from the list whereas he had placed circled numbers from 1 to 6 opposite these six names and a circled number 7 opposite the name of the Juror Olivares, intending to strike his name also.

The court granted the request of counsel for the State and permitted the name of the Juror Olivares to be stricken and he was replaced.

If either request was to be allowed it should have been that of defense counsel made before the lists showing the peremptory challenges had been compared.

We conclude that the court abused his discretion in refusing to permit the defendant to change his challenge marked by mistake.

The appellant’s motion for rehearing is granted; the opinion and order affirming the conviction is withdrawn and the judgment is now reversed and the cause remanded.


text:
    Lee Otha COOPER, Appellant, v. STATE of Texas, Appellee.
    No. 33874.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    Percy Foreman (On Appeal), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Plouston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The single count indictment upon which appellant was convicted' for murder with malice charged that, while driving an automobile, he voluntarily and with malice killed the deceased by colliding with and striking him with an automobile. The punishment was assessed 'at 25 years..

The evidence shows that the appellant, the deceased, and several other persons had spent the evening visiting, and some of them, including the appellant and the deceased, were drinking beer and whiskey. About 1 A.M., the appellant, his sister, Arnell (also referred to herein as Nell), and the deceased left a drive-in in appellant’s automobile going to Houston. Arnell was driving but soon stopped to let the appellant drive. When they opened the car door to get out in order to change drivers, the light came on inside of the car, and Ar-nell discovered that her money was missing from her purse. She accused the deceased of taking it, and after he denied having taken it, she reached in his shirt pocket and recovered the money.

According to the appellant’s written statement, introduced by the state, he got mad at the deceased for getting his sister’s money, they had a “cuss fight”, and the appellant refused to let the deceased ride with them any further. The appellant then drove away, and the deceased started walking hack toward the drive-in which had closed at 1 A.M. The statement further recites:

“ * * * after I had started to driving * * * I turned around and started towards him as he was walking on the highway and I picked up some speed with my car before I got to where John (deceased) was and then I was going somewhere around SO to 55 miles per hour and then when I was real close to him I saw that he was not going to jump out of the way as I thought that he would and by that time I was to._, close to him to keep from hitting him and the right side of the car hit John.
“As soon as I hit John I put on my brakes and stopped the car as John had came up on the hood of the car and then fell off. When I got stopped John had rolled off the hood of the car and fell in the ditch. * * *.
“While I was waiting for the Police to come I told Nell that we had got our self in some trouble and that we should tell the Police that we were driving down the street and this man was walking along the road and stepped out and we was unable to avoid hitting him. When the Police came that is what we told them and we came to the Police Station and made statements that this was what happened.”

An officer testified that the point of impact was on the 48 feet wide, 4 lane highway some. 5 feet from the edge of the shoulder.

The testimony of a physician who examined the body of the deceased showed that his death was caused by a skull fracture. He also testified that the alcoholic content of the blood of the deceased was 0.118% which was indicative of intoxication.

Testifying in his own behalf, the appellant stated that he had drunk a lot of beer, and some scotch, and was intoxicated; that when they stopped to change drivers he refused to let the deceased ride any further because he had taken his sister’s money and then drove away. After traveling a short distance, he stated that he decided to return and get the deceased because he had known him all his life, and he had done nothing to him to make him angry. He further testified that he expected the deceased to be on the opposite side of the highway from where he was when hit, and that his act of driving his car into the deceased was an accident, and that he did not intend to injure or to kill him.

The appellant called his sister, Arnell, as a witness and her testimony was substantially the same as given by him.

The appellant introduced the following from his written statement: “I thought I would scare John (deceased,) a little”, which was not offered by the state. While testifying, he denied making the above-quoted statement and said that it was placed in there because “that’s what the officer wanted”.

The appellant contends that the trial court erred in refusing to submit the following requested charge to the jury:

“If from the evidence you believe, or have a reasonable doubt, that the acts of defendant, if any, causing death of John Allen Hall were done by accident while defendant was driving an automobile intoxicated, then, in such event, you would not be authorized to find defendant guilty of any offense under the indictment in this case and it would be your duty to acquit him and say by your verdict ‘Not Guilty’.”

In support of his contention, he insists that the testimony raised the theory of murder under Art. 802c, Vernon’s Ann.P.C., which is not charged by or included within the averments of an indictment charging murder with malice; and that a finding that he was guilty of murder under 802c, supra, would constitute a defense in this case and authorize his acquittal.

The evidence of appellant’s statements, attitude, and conduct toward the deceased at the time his sister missed and recovered her money when they stopped to change drivers, his refusal to let him ride any further, then to turn around after traveling a short distance and begin picking up speed as he drove towards the deceased walking on the highway, until he was too “close to him to keep from hitting him and the right side of the car hit John (deceased)”, and his false statements about it when first asked by the officers is sufficient to warrant the conviction for murder with malice.

In Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105, and Lopez v. State, 162 Tex.Cr.R. 454, 286 S.W.2d 424, the doctrine of implied malice was recognized and applied to murder by the operation of an automobile in such a reckless manner as to evidence a disregard of the lives of others and that malice might be inferred therefrom.

The fact that the evidence relied on by the state to show murder with malice also developed facts which constitute the offense of murder under art. 802c, supra, does not prevent the conviction for the offense of murder with malice as alleged in the indictment, or constitute a defense authorizing his acquittal. Under either charge, although only one was here alleged, the appellant cannot avail himself of the fact that he killed the deceased by accident or mistake while driving drunk as a defense, when on trial for killing the deceased with malice by colliding with and striking him with an automobile. Johnson v. State, 153 Tex.Cr.R. 59, 216 S.W.2d 573(7).

The act here involved is the killing of the deceased. In charging the appellant with the commission of such act, the state had the right to carve the offense it chose. January v. State, 66 Tex.Cr.R. 302, 146 S. W. 555; Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928; Martinez v. State, 165 Tex.Cr.R. 244, 306 S.W.2d 131.

In submitting the case to the jury, the court charged on murder with and without malice, negligent homicide, simple assault, unavoidable accident, and the issue of suspended sentence.

The refusal of the requested charge was not error.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Esmond Pickens GUE, Appellant, v. STATE of Texas, Appellee.
    No. 33882.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.

      Charles W. Tessmer, Dallas, for appellant.
    Henry Wade, Cr. Dist. Atty., John Rogers, O. H. Harris, Robert Maloney, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

Dallas Police Officers Walker and Turner testified that at 12:30 A.M. on the night in question they observed an automobile being driven slower than the minimum speed on the expressway, that it would slowly go-over into a traffic lane other than the one in which it was traveling and t-hen suddenly whip back'and into the traffic lane bn the other side, that the red light on their police car was turned on and the automobile came to a halt on the shoulder. They testified that appellant was in the automobile alone, dressed in pajama pants, a houserobe, sox and no shoes; that they detected a strong smell of intoxicants on appellant’s breath; that appellant said he had been drinking highballs at home; that his speech was slurred, his eyes were watery, and his face was flushed; that he staggered when walking back to the police car, and both of the witnesses expressed the opinion that appellant was intoxicated, although appellant had volunteered the opinion that he was not drunk.

Appellant called reputation witnesses and testified himself that upon his arrival at home that evening his wife had fixed him three, four, or possibly, five, bourbon highballs before dinner; that after midnight he decided to go downtown to his office and was apprehended by the officers, whom he had passed on the freeway while exceeding the speed limit, and that even though he had been drinking he did not consider that he was drunk.

He also called his personal physician, who testified that he talked with appellant on the telephone shortly after his arrest and had no trouble understanding him, and his wife, who testified that as was their custom she fixed three or four gin mixed drinks for appellant before dinner on the night in question, that he “almost always” drank gin, and that after a late dinner she retired for the evening.

The jury resolved the conflict in the evidence against appellant, and we shall discuss the three questions presented by brief and in argument. The first is the most interesting. It is concerned with the testimony of Officer Walker in which he related that when he and his companion arrived at the jail with appellant they carried him before the “supervisor on the desk.” We quote that which followed:

“Q. Did he have a chance to observe the Defendant? A. Yes, sir.
“Mr. Henderson: If - your Honor, please, certainly that would be a violation of the best evidence rule. It would be speculative, hearsay, prejudicial, conclusion.
“The Court: Well, there’s been no effort to elicit any conversation. The question was whether the officer had a chance to observe him. Now, I’ll overrule it. If they go farther, you object, Mr. Henderson.
“Q. (By Mr. Maloney) After this officer had a chance to observe the De- . fendant, was the Defendant booked on any charge, and if so, what charge ? A. Yes, sir, investigation of DWI.”

The first question and answer were not incriminating. The court properly overruled the objection but cautioned counsel to be on guard and object again if the State sought to “go further.” The second ..question and answer may have been damaging to appellant and improper, but no objection was leveled thereto, and therefore no error is presented for review. This disposition of this question precludes the necessity of determining whether the rule announced in Byrd v. State, 89 Tex.Cr.R. 371, 231 S.W. 399, Priest v. State, 162 Tex. Cr.R. 66, 282 S.W.2d 390, and Johnson v. State, Tex.Cr.App., 320 S.W.2d 831, upon which appellant relies, shall have application here.

The second question arises out of the cross-examination of appellant’s wife. Appellant’s contention is predicated upon the assumption that no objection is necessary. Though the opinion in Brock v. State, 44 Tex.Cr.R. 335, 71 S.W. 20, 60 L.R.A. 465, might be construed as supporting appellant’s .contention, we have concluded that this question was put to rest in our relatively recent opinion on rehearing in Williams v. State, 161 Tex.Cr.R. 500, 279 S.W.2d 348, 350, wherein we said:

“An accused will not be permitted to introduce his wife as a witness in his behalf, remain silent during her cross-examination, and secure a reversal in the event any part of her cross-examination impinges upon, the rule forbidding the use of the wife as a witness against her husband.”

At most-, the cross-examinationcom-plained of related to a conflict between, appellant and his wife as to the type of alcoholic beverages which he consumed on the night in question, plus the fact that appellant’s wife testified that it would have been physically possible for him to have drunk something further after she retired but that he never did drink after eating. We find no error reflected by this contention.

The last contention seems to be that the prosecutor overreached appellant in his cross-examination. The prosecutor asked appellant:

“Q. Now, would they (the officers) be mistaken if they said that was not so? A. Well, I think they cooked up that story, Mister.
“Q. In other, words, you feel those officers are lying? A. I do. I feel like they made up that story and are stuck with it.
* * * * * *
“Q. * * * when they say that you were weaving out there on Central Expressway that night, they were lying, is that correct? A. That’s my opinion.”

When finally an objection was interposed, the court sustained the same as to the word “lying,” but overruled the objection as to a question concerning their “making up a story.”

In view of the preceding questions to which no objections were made, we perceive no error in the court’s ruling as to the last. Such also is the case as to the questions concerning how much it took to intoxicate appellant. Prior to the asking of the question to which an objection was interposed, appellant had testified, without objection, that it took three-fourths of a fifth of liquor to make him drunk.

Finding no reversible error, the judgment of the trial-court is affirmed.

WOODLEY, Presiding Judge

(concurring).

As to the questions propounded to Officer Walker, our holding should be that there was no error. I concur in the affirmance of the conviction.


text:
    Robert Mennet FOUGA, Appellant, v. STATE of Texas, Appellee.
    No. 33719.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1961.
    Ralph E. Cadwallader, San Antonio, for appellant.
    Charles J. Lieck, Jr., Dist. Atty., Richard -M. Casillas and Andrew L. Jefferson, Jr., Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the misdemeanor offense of wilfully deserting, neglecting, or refusing to provide for thé support and maintenance of his children under eighteen years of age, in violation of Art. 602, V.A.P.C., as amended by Senate Bill 47, Chap. 222, Regular Session of the 56th Legislature, page 504. Trial was had before the court without the aid of a jury, upon a plea of not guilty.' The court found appellant guilty and punishment was assessed at confinement in the county jail for a period ’of 'six month's.

Appellant contends that Art. 602, supra, under which he was tried and convicted, is unconstitutional because said article, as enacted by the Regular Session of the 56th Legislature, contains more than one subject —his contention being that the definition of acts which constitute a misdemeanor and the definition of acts which constitute a felony cover more than one subject. Appellant further contends that the caption of the act amending the statute in question omits mentioning an intent to change the penalty provided for in the body of the act. It is appellant’s position that these contentions advanced by him make the act unconstitutional as being contrary to Art. 3 of Sec. 35 of our Constitution, Vernon’s Ann.St., which says, in substance, that no bill, with certain exceptions (being general appropriations bills), shall contain more than one subject, which shall be expressed in its title.

The caption of the act that appellant complains of reads as follows:

“An Act amending Article 602, Penal Code of Texas, 1925, and adding a new Article to be numbered Art. 602-A, so as to define what shall constitute wil-fully deserting, neglecting or refusing to provide for the support and maintenance of a wife in necessitous circumstances and to define what shall constitute wilfully deserting, neglecting or refusing to provide for the support and maintenance of one’s child or children under eighteen years of age; fixing a penalty; providing that a second conviction for a like offense and conviction for deserting and leaving the state shall be a felony; providing for a severance of any part of this Act held invalid; and declaring an emergency.”

Briefly, Art. .602, as enacted by the Regular Session of the 56th Legislature, defines the offense of wilfully deserting, neglecting, or refusing to provide for the support and maintenance of a wife in necessitous circumstances and the offense by either parent of wilfully deserting, neglecting, or refusing to provide for the support and maintenance of a child ■ or children under eighteen years of age; The offense is made a misdemeanor punishable by confinement not to exceed two years in jail.

The act, as amended, raised the age of children from “under sixteen years of age” to “under eighteen years of age.” The prior act provided for confinement in the penitentiary for not more than two years and also contained a provision for confinement in jail and a provision for a fine of not less than $25 nor more than $500, or by such fine and imprisonment in jail.

Art. 602-A is identical to Art. 602, except that Art 602-A makes a subsequent offense a felony, so the question here presented is whether the caption of Senate Bill 47, as passed by the Regular Session of the 56th Legislature, was sufficiently broad to authorize the enactment hereinabove summarized.

Appellant relies upon Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, and Gilbert v. State, 122 Tex.Cr.R. 542, 56 S.W.2d 880, 881. Both cases cited by appellant involved the same act and caption — namely, Art. 1316 of the Penal Code, which was “An Act to amend Article 1316, Chapter 1, Title 17, of the Penal Code of 1925; further defining the offense of an attempt to commit arson; and declaring an emergency.” The caption made no mention whatsoever of any penalty to be included in the amending article. Its purpose was clearly restricted to “further defining the offense of an attempt to commit arson.” The legislature, in those two cases, not only added to the ingredients compounding the crime in further defining the offense, but actually made a change in the penalties therefor.

As stated by Judge Christian in the Rot-ner case, supra:

“There was a material change in the penalty. The caption of the amenda-tory act restricted the purpose of the bill to- a change in the definition of the offense. The framers of the bill thus informed the public and their fellow legislators that the purpose of the bill was to change the definition. In changing the penalty, the bill went beyond the express limitation of its caption, and, under section 35 of article 3 of our Constitution and authorities, this destroyed its effectiveness as a law.”

In Gilbert v. State, supra, Judge Morrow stated:

“The omission from the caption of any notice of an intention to change the penalty renders the amending act inoperative.”

We do not think the 56th Legislature was laboring under such restriction. To the contrary, the caption of the enactment under review in clear and unambiguous language placed the public and the legislature on notice that the purpose of the act was, among other things, to add “a new Article,” fix “a penalty,” and to provide for a second conviction and conviction for deserting and leaving the state. We think there is no semblance or analogy between the authorities cited by appellant and this case.

We think the case of Ex parte Garcia, 125 Tex.Cr.R. 208, 67 S.W.2d 609, is controlling here. In that case, as in the instant case, this court had Art. 602, V.A.P.C., for review. In Garcia, the amendatory act made a felony of what theretofore had been a misdemeanor. Appellant there asserted that the change in penalty in the new law was not within the scope of the proposed amendment “prescribing fines, penalties and punishments.” Judge Lattimore distinguished Garcia from Rotner and Gilbert, both of which cases were cited by appellant in Garcia’s case. On motion for rehearing in the latter case, Judge Hawkins said:

“Appellant takes issue with our statement in the original opinion that the holding in Rotner v. State [122 Tex. Cr.R. 309], 55 S.W.2d 98, is not controlling in the present case. In Rotner’s Case, we were dealing with a law which Changed the penalty in the body of the act, whereas the .caption omitted any reference to the ‘penalty,’ but conveyed only the idea of a proposed change in the definition of the offense. Such is not true of the caption we are now dealing with. It specifically gives notice that the body of the act proposed to prescribe ‘fines, penalties and punishments.’”

As to the case at bar, the caption of the act gives notice that the purpose of the proposed enactment was to add a new article, define the offense, fix a penalty, provide for subsequent convictions, and for a conviction for desertion by leaving the state. In enacting the article under which appellant was tried, the 56th Legislature. did nothing more than carry out its purpose as announced in the caption of the act.

Art. 3 of Section 35 of the Texas Constitution does not prohibit the enactment of a bill making the first offense a misdemeanor and. subsequent convictions a felony.

We feel that the instant case was correctly disposed of by the trial court, and the judgment is affirmed.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Wanda Louise TUMLIN, Appellant, v. STATE of Texas, Appellee.
    No. 33654.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.

      M. Gabriel Nahas, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Clyde Bracken, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $100.

Police Officer Jack Scott, of Bell-aire, saw an automobile parked near a drug store about 3 :20 A.M. Appellant was sitting in the parked car.

As the officer stopped the patrol car he was driving alongside of the parked car, a man was walking across the street from the direction of the drug store to the car and got in on the driver’s side. The officer asked him if he was having trouble and he said his car would not start.

Observing that the man started the car without difficulty and drove away, the officer noted the license number and checked the drug store which he had been informed someone had attempted to break into a week or ten days before. Finding the door facing the street where he had seen the man walking had been pried open, the officer pursued and overtook the automobile, notifying the police dispatcher.

Fie searched the driver but found nothing in the way of weapons on him. Auxiliary Patrolman Donald Perkinson arrived on the scene after the car was stopped. Fie testified that when he first saw her, appellant was sitting upright but as he approached she was “ducking down or bending down in some manner.” He searched the car and found a .32 caliber pistol under the seat which she occupied. He testified that after the night in question appellant attempted to reclaim the pistol.

We find the evidence sufficient to sustain the conviction.

It is contended that the arrest of appellant was unlawful, and that the search of the automobile as an incident to such unlawful arrest was unlawful and the evidence obtained thereby was inadmissible under Art. -727a Vernon’s Ann.C.C.P.

The search was not made as an incident to the arrest of appellant for the offense of unlawfully carrying on or about her person a pistol, but as an incident to the search of the driver of the automobile in the investigation of the burglary or attempted burglary of the drug store.

The contention that such search was unlawful is overruled. The case of Giacona v. State, 164 Tex.Cr.R. 325, 298 S.W.2d 587, cited and relied upon by appellant, does not seem to be in point. If so, it is overruled.

The facts stated are sufficient to show-probable cause for the search of the automobile.

The judgment is affirmed.

MORRISON, Judge

(concurring).

I agree to the affirmance of the conviction but see no necessity in overruling Giacona v. State, supra. In the case at bar, the person of appellant was not searched and so the rule announced in Giacona has no application.


text:
    Gregory Michael O’BRIEN et al., Appellants, v. STATE of Texas, Appellee.
    No. 33783.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a bond forfeiture case.

Gregory Michael O’Brien was charged with drunk driving and when his motion for new trial was reached and called his appearance bond in the sum of $500, with E. Colley Sullivan and M. E. Fields as sureties, was forfeited, he having failed to appear.

Citation issued February 22, 1961, was served on the sureties commanding that they appear by filing written answer “at or before 10 o’clock A.M. of the Monday next after the expiration of twenty (20) days after March 6th, 1961, the date of commencement of the next term of said court, and show cause why the forfeiture of said bond should not be made final.”

Motion to quash the citation was filed April 10, 1961, and on April 28, 1961, the motion was granted.

On May 26, 1961, judgment final was rendered and was signed and entered May 31, 1961.

On June 8, 1961, sureties on said bail bond excepted to the overruling of their motion for new trial and thereafter superseded the judgment with a supersedeas bond.

Appellant’s first point of error is that the court was without authority to render final judgment because, after their motion to quash the citation, they had not been re-served and had not waived service.

Under the terms of Art. 2092(8), Vernon’s Ann.Civ.St., applicable in Dallas County, as well as Rule 122 of the Rules of Civil Procedure which made the provisions of said section of the statute applicable to all courts, appellants were deemed to have been duly served so as to require them to answer on Monday next after the expiration of 20 days after the day the citation was quashed, and, having failed to do so, judgment by default was authorized.

Appellant’s second point of error is that the judgment nisi is fundamentally defective and at variance with the final judgment in that the judgment nisi renders judgment against the principal for $500 and “in addition thereto renders a judgment against each of the sureties additionally for the same amount.” We overrule this point.

The liability of the sureties on a bail bond or recognizance is several as well as joint, and it is immaterial whether it be stated in the judgment nisi or the citation to be joint or several, or joint and several. Allee v. State, 28 Tex.App. 531, 13 S.W. 991; Dunn v. State, 121 Tex.Cr.R. 30, 53 S.W.2d 307; Moreland v. State, 122 Tex.Cr.R. 452, 55 S.W.2d 1044.

The judgment is affirmed.

Appellants having superseded the judgment by supersedeas bond, judgment is rendered against the sureties on said super-sedeas bond for the performance of the judgment herein affirmed.


author: DICE, Commissioner.

text:
    Jimmy STOCKDALE et al., Appellants, v. STATE of Texas, Appellee.
    No. 33786.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    P. P. Ballowe, Dallas, for appellant.
    Henry Wade, Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal by E. Colley Sullivan, as surety upon the appearance bond of Jimmy Stockdale, from a final judgment of the County Criminal Court No. 2 of Dallas County, forfeiting said bond.

The bond dated September 22, 1960, in the penal sum of $300 was conditioned that the principal appear instanter in County Criminal Court No. 2 of Dallas County to answer a misdemeanor charge.

Judgment nisi was entered on March 30, 1961. Citation was issued on April 4, 1961, directed to the sheriff or any constable of Dallas County, Texas, commanding said officer to summon the said E. Colley Sullivan, as surety, to be and appear before the' County' Criminal Court No. 2 of Dallas County; at the next term thereof to show' cause ■ why • said forfeiture should not be made final; The sheriff’s return thereon recites'that the'same was executed “by deliv-' efing'to the within defendant-surety, to wit: E. Colley Sullivan, at 2:35 o’clock P.M., April 7, 1961, in person, a true-copy of this citation.”

Final judgment by default was rendered against the principal and appellant-surety on May 26, 1961.

Appellant insists that the court erred in rendering the final judgment against' him because the officer’s return on the citation failed to show the date appellant was served with citation and for the further reason that the judgment by default was based upon an amended citation and it was not shown that notice of the proposed amendment had been served upon the appellant.

The officer’s retúrn on the citation, as above set out certifies that it was served upon the appellant on April 7, 1961.

There is no showing that the citation was amended. The record does reflect that a motion was filed by the state for permission to amend the officer’s return on the citation to show that it was served on April 7, 1961. Such an amendment is authorized by Art. 435, Vernon’s Ann. C.C.P., and Rule 118, Texas Rules of Civil Procedure; The final judgment entered by the court in the cause recites that the motion to amend the officer’s return was-considered and granted after due notice had been given to the appellant-surety. This Court is bound by the recitations in the court’s judgment. Miller v. Permenter, 234 S.W.2d 459, Tex.Civ.App. 1950, Ref. N.R.E.

Under the record, the appellant’s contentions are without merit.

The judgment is affirmed.

Appellant having superseded the judgment by supersedeas bond, judgment -is. rendered against the sureties on said supersedeas bond for the performance of-the judgment herein affirmed.

Opinion approved by the Court.


text:
    Lucky Earl McKEE and Clifton I. Jones, Appellants, v. STATE of Texas, Appellee.
    No. 33840.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1961.

      Martin & Smith, Austin, for appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment assessed against each of the appellants, two years.

Clifton I. Jones has filed his affidavit stating that he does not desire to prosecute his appeal further, and moves that as to him the appeal be dismissed.

The motion is granted and the appeal of Clifton I. Jones is dismissed.

The state sought an enhanced punishment against the appellant McKee under Art. 63, P.C., and to that end alleged in the indictment that he had twice previously been convicted of a felony less than capital, one conviction being for forgery in 1957; and the other, driving while intoxicated, subsequent offense, in June 1960.

Appellant sought to quash the portion of the indictment alleging prior convictions, contending that a felony conviction for driving while intoxicated cannot be used for the purpose of enhancement under said Art. 63, P.C.

We do not agree.

We have held that Art. 802b, Vernon’s Ann.P.C., provides the punishment applicable to every subsequent, felony offense of driving while intoxicated. Edwards v. State, 166 Tex.Cr.R. 301, 313 S.W.2d 618; Ex parte Bateman, 166 Tex.Cr.R. 452, 314 S.W.2d 842.

It does not follow that such punishment may not be enhanced under Art. 63 because of prior convictions for felonies less than capital other than drunken driving. Tomlin v. State, Tex.Cr.App., 338 S.W.2d 735.

We are aware of no reason why a felony conviction for driving while intoxicated may not be used, as any other conviction for a felony less than capital, to enhance the punishment for burglary or any felony less than capital other than driving' while intoxicated. ' ' ’ '

In any event, the jury' did not' find that appellant McKee had been previously convicted but found him guilty of burglary and assessed the minimum punishment, and no injury to the appellant is shown. See Oakley v. State, 167 Tex.Cr.R. 630, 323 S.W.2d 43.

The record contains no statement of facts and no error appears.

The judgment as to the appellant Lucky Earl McKee is affirmed.


text:
    Abundio GARZA, Appellant, v. STATE of Texas, Appellee.
    No. 33964.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1961.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is operating an automobile without the owner’s consent; the punishment, thirty days in jail and a fine of $25.

In examining the complaint and information we find the statutory requisite of Art. 1341, Vernon’s Ann.P.C., is not properly alleged as to the value of the automobile operated without the consent of the owner, Manuel Valdez.

The above article, as amended by act of the 56th Legislature, 1959, makes it necessary to allege the value of a motor vehicle in cases of this kind, and fixes punishment, misdemeanor, under Sec. “a” when the vehicle is valued at less than $200; and under Sec. “b” when the vehicle is valued at more than $200 a possible punishment may be assessed for any term not exceeding three years in the penitentiary.

Even though no objection has been urged, we regard the above error as fundamental; accordingly, the cause is reversed and the prosecution ordered dismissed.


author: McDonald, judge. MORRISON, Judge

text:
    Howard E. HULTIN, Appellant, v. STATE of Texas, Appellee.
    No. 33515.
    Court of Criminal Appeals of Texas.
    Oct. 2, 1961.

      William H. Scott, Jr., Ellis F. Morris, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Áttys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Murder with malice is the offense, with punishment assessed at confinement in the penitentiary for life.

Since there is little controversy regarding the facts of this case, we shall state them briefly:

On the evening of April 21, 1960, Michael Wayne Lethcoe, Jimmy South, and Jean and Janet Travis observed appellant, then sixteen, years of age, walking down Idaho Street, in Houston, about six feet behind Linda Faye Ruble. After appellant had followed her for some distance, it appeared that he was hitting her, and the boys started running toward appellant and Linda. As they approached, the girl ran past them and fell in the street, and appellant disappeared behind some bushes in a residential driveway. The boys followed and found him, at which time appellant said to them, “Come on, kids,” and then drew a knife and started toward the boys. The boys then separated and began running. Appellant threw the knife — a large hunting knife — at Michael Lethcoe, striking him in the back and cutting through the flesh close to his shoulder blade and then glancing off and cutting his arm. After this, appellant disappeared. The boys approached the little girl, Linda, who was lying in the street and bleeding badly. Accompanied by her father and the two boys, Linda was taken to a hospital. She was pronounced dead on 'arrival.

After his arrest, appellant made both a written and' an oral confession, which led to the discovery of the knife he said he-threw in the bushes.

In his written confession, appellant related the following: He had heard the boys at school tell of their relations with girls and had wondered “ ‘what it would be like.’ ” He had the feeling that if he asked a girl to go out with him she would refuse and he did not want to be “turned down.” On the day in question he got home about 6:15 p. m., but decided to go out and have “relations with some girl,” intending to force the girl into such relations since he “did not want to be turned down.” He took his hunting knife, about twelve or fourteen inches long, put it in his belt and walked toward Idaho Street. When he reached that street he observed Linda Faye walking toward a grocery store on Chocolate Bayou Road, at which time he concealed himself in some bushes and waited for her to come back from the store. When he saw her coming he walked up to her, telling her he had a knife and that she should take a right turn on New York Street. The girl only looked at him and began walking away, at which time appellant started stabbing her with his knife. The girl screamed, dropped the groceries she was carrying, ran a little way, and then fell. Appellant was “jumped” by the two aforementioned boys as he tried to enter a wooded area to the south of Idaho Street. He stabbed the Lethcoe boy and threw his knife at him, after which he retrieved the knife and returned home. Shortly thereafter, as related in the confession, an officer came to the house and took appellant “around the corner to where this happened.”

Appellant offered the defense of insanity, and an expert witness testified in his behalf that he was insane at the time he committed the offense.

This testimony was rebutted by the state’s witnesses, and the jury found against appellant upon this issue.

In order to fully understand the issues raised by appellant it is necessary to present a history of his case in the juvenile court:

The offense occurred on April 21, 1960. On April 27, 1960, the district attorney of Harris County filed, through his assistant, •a petition in juvenile court alleging that appellant was a delinquent child, and alleging as grounds therefor an assault up•on Michael Wayne Lethcoe with intent to murder, and alleging a second count of aggravated assault upon the boy. On July 20, 1960, appellant’s attorney, William H. Scott, Jr., who represented him in the delinquency proceeding in juvenile court and also represented him in the criminal district court of Harris County, filed a supplemental petition in juvenile court alleging that appellant did, on April 21, 1960, voluntarily and with malice aforethought hill Linda Faye Ruble by stabbing her with a knife. The district attorney filed a motion to strike the supplemental petition. The judge of the juvenile court heard argument and was presented with briefs on the issue and then overruled the motion to strike. Appellant then pleaded guilty, through his attorney, William H. Scott, Jr., to aggravated assault upon Michael Lethcoe and to the murder of Linda Faye Ruble. On July 21, 1960, the juvenile court found appellant to be a delinquent child, on account of the commission of the two offenses.

Appellant was then committed to the Texas Youth Council, which, in turn, placed him in the State School for Boys at Gates-ville for an indeterminate period of time not to extend beyond his reaching twenty-one years of age.

On August 26, 1960, the appellant became seventeen years of age.

An indictment was returned against appellant by the Harris County grand jury on September 19, 1960, for murder, with malice aforethought, of Linda Ruble. Appellant was taken to Houston for trial. All further proceedings, including this trial and conviction, occurred, then, after appellant became seventeen years of age, the case being set for trial in Criminal District Court of Harris County on a charge of murder with malice and the trial beginning November 28, 1960, in said court and terminating in conviction on .December 2, 1960, with punishment assessed,at life imprisonment.

By brief and oral argument, appellant’s very able counsel predicates this appeal upon five propositions, in which it is insisted that the trial court committed material and fundamental error.

We shall, first, enumerate the various propositions relied upon by appellant: •

In his first proposition, appellant says that error was committed by the trial court in denying his motion to quash the indictment for want of jurisdiction, for the reason that the juvenile court, alone, had jurisdiction over the person of appellant because of his previous conviction for the same offense, under the Juvenile Delinquency Act. Appellant preserved this matter by his formal bill of exception #4.

Appellant next complains that the trial court erred in overruling his motion to quash the indictment by reason of the course of deliberate delay by the district attorney, which delay was calculated to deprive appellant of his rights under the Juvenile Delinquency Act. Appellant insists in his motion and the undisputed evidence adduced thereon that the district attorney deliberately delayed presenting the offense to the attention of the grand jury, for the purpose of preventing him from exercising his rights as a juvenile under the law, and thereby deprived him of such'fundamental right. This matter is preserved as formal bill of exception #6.

Appellant next complains that the trial court committed error in overruling his motion to quash the indictment by reason of double jeopardy, or, alternatively, former conviction, because he had previously been subjected to the exercise of the police power of the state available to it in his conviction as a juvenile delinquent — which motion and the undisputed evidence adduced thereon before the court reflected that appellant had previously been adjudged a juvenile delinquent by reason of the same offense for which he was here indicted. Appellant preserved this point by his formal bill of exception #5.

By his fourth proposition, appellant complains, as follows, that: (a) The trial court committed error in overruling his motion to exclude the testimony of Jimmy Hugh South relative to events witnessed by him on the day of the homicide in question, which motion and undisputed evidence adduced thereon before the court showed that this witness had previously testified against him (appellant) in the juvenile hearing concerning the same offense. This matter was preserved in appellant’s formal bill of exception #1. (b) Error was committed in the overruling of the motion to exclude the testimony of Michael Wayne Lethcoe as to events witnessed by him on the date of the homicide, the motion and the evidence reflecting that said witness had previously testified against appellant in the juvenile hearing on the same offense. This matter was preserved in formal bill of exception #2. (c) The trial court committed error in overruling the motion to exclude and suppress the written statement elicited from appellant by the police officers — which statement had previously been introduced in evidence against him in the juvenile hearing as to the same offense. This matter was preserved in formal bill of exception #3. These subdivisions (a), (b), and (c) constitute appellant’s complaint brought forward in his fourth proposition.

Lastly, appellant complains of the action of the trial court in overruling and denying his special plea of previous conviction, which complaint is preserved in formal bill of exception #7; further error is claimed by reason of the trial court’s refusing him permission to present such special plea to the jury, being preserved in formal bill of exception #8.

As we view the appellant’s contentions, they are all predicated upon and arise as a result of his interpretation and construction of Art. 2338-1, Vernon’s Ann.Civ.St., commonly referred to as the Juvenile Delinquency Act.

Said act must be construed in connection with Arts. 5143c and 5143d, subsequently enacted, and with Art. 5143a, V.C.S.

Under Art. 2338-1, the term “delinquent child” means any female person over the age of ten and under the age of eighteen, and any male person over the age of ten and under the age of seventeen years: (a) who violates any penal law of this state of the grade of felony; (b) or who violates any penal law of this state of the grade of misdemeanor where the punishment prescribed for such offense may be by confinement in jail; (c) or who habitually violates any penal law of this state of the grade of misdemeanor where the punishment prescribed for such offense is by pecuniary fine only; (d) or who habitually violates any penal ordinance of a political subdivision of this state; (e) or who habitually violates a compulsory school attendance law of this state; (f) or who-habitually so deports himself as to injure or endanger the morals or health of himself or others; (g) or who habitually associates with vicious and immoral persons.

Sec. 21 of the Act provides that an appeal may be taken by any aggrieved party to the Court of Civil Appeals and the case may be carried to the Supreme Court by writ of error or upon certificate, as in other civil cases.

The Act was passed in 1943, by the 48th Legislature, and amended in 1959 by the 56th Legislature. It has been construed many times by the courts.

In considering the Juvenile Act we must first examine the pertinent constitutional and statutory provisions:

We find that Art. V, Sec. 8, of the Constitution of this state, Vernon’s Ann.St. vests original jurisdiction in all criminal cases of the grade of felony in the district courts. Art. 54, C.C.P., vests original jurisdiction in all criminal cases of the grade of felony in the district courts and criminal district courts.

Art. 51, C.C.P., enumerates the courts that have criminal jurisdiction. The juvenile court is not listed among them.

Art. 1, Sec. 10, of our Constitution states that no person shall he held to answer for a criminal offense unless on an indictment of a grand jury, except in cases in which the punishment is by fine and imprisonment other than in the penitentiary.

Art. 1, Sec. 14, of the Constitution states that no person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

Art. 31, Vernon’s Ann.P.C., provides that:

“A person for an offense committed before he arrived at the age of seventeen years shall in no case be punished with death.”

The Juvenile Act did not repeal this article, but should be construed with it. Dearing v. State, 151 Tex.Cr.R. 6, 204 S.W. 2d 983.

The trial judge gave effect to this statute in instructing the jury as to the punishment applicable.

From a perusal of the foregoing constitutional and statutory provisions, it is obvious that the legislature did not vest in the juvenile courts of this state exclusive, continuous, uninterrupted jurisdiction over males past seventeen years of age who were indicted for felonies, although these same seventeen-year-old males previously have been adjudged by a juvenile court to be delinquent children.

It is also apparent that the juvenile courts of this state have no criminal jurisdiction.

Although elemental, it is also vividly clear that an accused cannot be tried in Texas for a criminal offense of the grade of felony except on an indictment of a grand jury.

The various courts of civil appeals, the Supreme Court, and this court have all construed the Juvenile Act many times. In every instance, these courts have all construed — without exception — juvenile proceedings to be civil and not criminal proceedings.

On account of the gravity of the questions here presented and because this is a case of first impression, we have carefully reviewed all of these cases. We shall set forth many of them below:

We think the Supreme Court correctly construed the Juvenile Act in Dendy et al. v. Wilson et al., 142 Tex. 460, 179 S.W.2d 269, 151 A.L.R. 1217, not only holding it to be constitutional but also stating that the Act does not undertake to convict and punish a child for the commission of a crime. It defines a “delinquent child,” and this definition furnishes the basis for proceeding against such a child, under the Act. The only issue to be determined at the trial is whether the juvenile is a “delinquent child” within the meaning of the Act. A juvenile court is not a criminal court. The proceedings in the juvenile act are civil in nature, and the customary rules of evidence in civil cases must be followed.

In Robinson v. State, Tex.Civ.App., 204 S.W.2d 981, it was held that a juvenile proceeding was a civil proceeding and that it made no difference whether the juvenile was under arrest, legal or illegal, at the time the confession was made.

Judge Graves stated in Dearing v. State, supra [151 Tex.Cr.R. 6, 204 S.W.2d 989]:

“While the appellant is confined and punished by reason of his delinquency, he is not being confined and punished for the crime of burglary. True it is that because he has committed an offense denounced as penal, that such was the reason of his delinquency having been determined and his confinement is caused by the fact of his being a delinquent child; and although in the absence of such burglarious act, his delinquency could not be established, nevertheless his confinement, and therefore punishment, is for being a delinquent child and not for being a convicted burglar.”

In Ex parte Rheude, involving a petition for a writ of habeas corpus and appellant alleging that he was unlawfully restrained of his liberty under and by virtue of a judgment issued out of the county court of Reeves County, as a juvenile court, this court, speaking through Judge Woodley on April 11, 1956, and reported in 289 S. W.2d 239 held that appellant was lawfully restrained under the terms of Arts. 5143c and 2338-1, V.C.S., and any question as to the validity of the statute, or the judgment or commitment under which appellant was held in custody is for the civil courts, on habeas corpus.

In re Gonzalez, Tex.Civ.App., 328 S.W. 2d 475, 477 (n.r.e.), it was stated that in a proceeding to determine delinquency “A jury trial may be had only by complying with the Texas Rules of Civil Procedure.” It was further held in the Gonzalez case that evidence need not be sufficient to establish delinquency beyond a reasonable doubt, as in a criminal case, but must be of probative value to adjudicate a juvenile as a delinquent, in accordance with the Rules of Civil Procedure.

Ex parte Yelton, 298 S.W.2d 285, held that the Court of Civil Appeals had jurisdiction of habeas corpus proceedings. Lazaros et al. v. State, Tex.Civ.App., 228 S. W.2d 972, held that a proceeding declaring a child to be delinquent is a civil and not a criminal proceeding.

In State v. Thomasson, 1955, 154 Tex. 151, 275 S.W.2d 463, 464 the Supreme Court held:

“The purpose is not to. convict and punish but to guide and direct. By this action it is not sought to convict these children of the commission of a crime measured by Texas standards to be a felony, but to'adjudge them to be delinquent in that they have committed such an offense.”

The case of Wood v. State, 349 S.W.2d 605, this court said in opinion' delivered May 17, 1961:

“At the time of the indictment and trial the appellant was 17 years of age or over and was, therefore, amenable to prosecution for the crime with which he was charged. The fact that he had previously been adjudicated a juvenile delinquent and was still such at the time of indictment and trial, did not deprive the district court of jurisdiction to try him so long as at the time of said indictment and trial he was of the age of 17 years. We know of no authority to the contrary nor have we been referred to any.”

In the case of Roberts v. State, Tex.Cr. App., 219 S.W.2d 1016, 1017, where the same contention was advanced, the court said:

“We cannot subscribe to the doctrine that as long as this appellant was under a commitment to the state school, that is, until his twenty-first birthday, he could not be further punished for any offense committed until after he had reached such twenty-first birthday. We do know that there are numerous precedents allowing his trial upon an offense committed while in the age of juvenility, such trial occurring after he had passed such age of juvenility. See Arrendell v. State, 60 Tex.Cr.R. 350, 131 S.W. 1096; McLaren v. State, 85 Tex.Cr.R. 31, 209 S.W. 669; Dearing v. State, Tex.Cr.App., 204 S.W.2d 983 * *

After construing the provisions of the Penal Code and of the Juvenile Act in an exhaustive’ analysis of these statutes, the, court, in Dearing v. State, supra, concluded:

“Having reached the conclusion that the trial court had the legal right to try appellant for the offense with which he stood charged, it also had the right to take him from the State’s training school and bring him before the bar of justice to be dealt with as provided by the Penal- Code . of this State. Otherwise, he would be immune from prosecution until he had reached the age of [twenty-one] 21 years. This, in our opinion, was not the intention of the Legislature at the time they enacted the Juvenile Statute.”

From an examination of the provisions of Arts. 2338-1 and SÍ43a, V.C.S., it is noteworthy to observe that no distinction is made “in regard to delinquency, based on the kind or character of law violation, but specifically makes a delinquent child of him who is under the prescribed age and violates any” provision of said statutes defining a “delinquent child.” 15 Tex.Jur., Sec. 7, p. 8, citing Davis v. State, Tex.Cr. App., 21 S.W.2d 1068.

A court of competent jurisdiction means a court that has jurisdiction of the offense. 12 Tex.Jur. Sec. 224, p. 539. A juvenile court has jurisdiction over a juvenile. It is a civil court. It has no jurisdiction over felonies. The district courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony.

One of the requsite elements of “jurisdiction” is jurisdiction over the subject matter. The expression “subject matter,” as used with reference to the problem of jurisdiction, in criminal law, refers to the offense. 16 Tex.Jur.2d 346, Sec. 190. The term “jurisdiction,” as used in the statute, “includes the three essentials necessary [sic] to the jurisdiction of a court; the court must have authority over the person and the subject matter; and it must have power to enter the particular judgment rendered.” 16 Tex.Jur .2d 357, Sec. 200.

From what we have said, it is apparent that the Juvenile Delinquency Act (Art. 2338-1) is, in its entirety, a civil statute and the proceedings thereunder including the commitment provided by Art. 5143d, V.C.S., are civil and not criminal in nature.

As noted earlier, appellant did not, personally, enter the plea of guilty before' Judge J. W. Mills in the juvenile court. His attorney entered the plea of guilty for him. The judgment and commitment do-not reflect that appellant was admonished concerning the consequences of the plea entered for him. He was not tried for murder, and the judge does not so recite. He was tried by the court without a jury on an allegation not contained in an indictment returned by a grand jury. While it is true that the attorney for appellant pleaded guilty to the two offenses alleged in the petition and supplemental petition in the juvenile court, the judgment of that court' reflects that it found the allegations true and supported by the evidence, and, thereupon, the court found appellant to be a delinquent child. In no sense of the word did the juvenile court find appellant guilty of murder and the disposition of appellant by the juvenile court was certainly not pursuant to a conviction for murder in the criminal district courts of this state.

In the case of Dunn v. State, 92 Tex.Cr. R. 126, 242 S.W. 1049, 1054, where, by agreement, appellant had been tried by a jury composed of eleven jurors for the offense of murder, the court held that “ ‘One tried by a jury less in number than required by law is in no jeopardy, and he may be tried again.’ ” The opinion further states: “To say that ‘he was tried before 11 jurors’ states nothing constituting jeopardy.”

Since all appellant’s contentions revolve around the construction of the Juvenile Act, Art. 2338-1, V.C.S., we feel that it is unnecessary to separately answer each contention.

We think appellant’s first contention is fully answered by the opinion of this court in Dearing v. State, supra.

Appellant’s second contention may be answered by the observation that Art. 2338-1, V.C.S., does not give to a juvenile a vested right to be tried immediately following the commission of an offense. It merely provides that if he or she is proceeded against before reaching the age of 17 or 18, respectively, such proceedings shall be in the Juvenile Court. Elliott v. State, Tex.Cr.App., 324 S.W.2d 218.

One answer to the contention concerning jeopardy is that the juvenile court never acquired jurisdiction over the offense for which appellant is now being prosecuted because that crime was injected into the juvenile proceeding's by appellant’s counsel. It has long been the rule in this state that counsel may hot admit the existence of incriminating facts or agree that his client is guilty of the crime charged. Crawford v. State, 161 Tex.Cr.R. 554, 278 S.W.2d 845, and cases there cited. This would apply to written pleadings as well as oral admissions.

Appellant’s contention as to the testimony of the witness South is answered by calling attention to the fact that South actually testified in the present trial. Sec. 13 of Art. 2338-1, supra, merely prohibits the introduction into evidence of the judgment in the delinquency proceedings or a reproduction of the evidence adduced at such hearing. It was clearly not the intent of the legislature to prohibit proof by a competent witness merely because he testified to the same facts at a juvenile hearing.

Appellant’s complaint concerning the introduction of his written confession, which had theretofore been introduced in the juvenile proceedings, presents no error. The confession had been introduced at the juvenile hearing by appellant’s counsel, who alone charged him with the murder.

What we have said concerning the question of jeopardy disposes of the necessity of discussing the propriety of submitting the question to the jury.

We will add, however, that the provisions of Sec. 13 of Art. 2338-1, prohibiting the use of evidence adduced against the child in the juvenile court, must be construed in connection with Secs. 32 and 33 of Art. 5143d dealing with the same subject. We do not construe these statutes to mean that such provision makes one who testified in a juvenile hearing incompetent to testify in a criminal trial in the district court. Sec. 13 of Art. 2338-1 not only excludes the evidence given in the juvenile court, it also excludes “the disposition of a child.”

The adjudication of delinquency was made only 36 days before appellant attained his 17th birthday. It is also evident from the record that appellant committed the murder on April 21, 1960, only four months and five days prior to his 17th birthday, and became 17 years old on August 26, 1960. Peterson v. State, 156 Tex. Cr.R. 105, 235 S.W.2d 138, refutes appellant’s contention as to undue delay.

While my interpretation might make it possible for some ten-year-old murderer to be incarcerated at Gatesville as a delinquent until he attains his seventeenth birthday and then be indicted and tried and given a life sentence, the writer feels that the power to prevent such occurrence is a legislative and not a judicial function. Just as, in its wisdom, the legislature enacted Art. 31, V.A.P.C., so may it, in its wisdom, take care of such contingency that, while remote, could arise—as appellant’s counsel pointed out in his exhaustive and ably prepared brief.

Appellant earnestly insists that the case of Van Hatten v. State, 97 Tex.Cr.R. 123, 260 S.W. 581, holding that the provisions of the delinquency statute are criminal in character, is here controlling'.

In examining Van Hatten we find that this decision was handed down in 1924 and came under the terms of Art. 1197, C.C.P., Acts of 1911. This case cites with approval Ex parte McDowell, 76 Tex.Cr.R. 1, 172 S.W. 213, which was a 1914 decision pursuant to the terms of the same article of the Code of Criminal Procedure, 1911, as cited in the Van Hatten case.

It is evident to us that the Juvenile Act was criminal in nature at the time of the decisions in these two cases and that the article controlled juveniles and their disposition was codified in the Code of Criminal Procedure of this state.

We think that both Van Hatten and McDowell must be distinguished from the holding of this court in Ex parte Rheude, supra, and other cases decided after Art. 2338-1, V.C.S., was enacted. In order to resolve any doubt, we here so hold.

Appellant also relies upon the cases of Watson v. State, 1922, 90 Tex.Cr.R. 576, 237 S.W. 298, and Walker v. State, 1932, 119 Tex.Cr.R. 330, 45 S.W.2d 987 both of which cases construed the juvenile law under the old article of the criminal code prior to the enactment by the legislature of the present articles with which we are here concerned. We do not regard these cases as here controlling.

We feel that appellant’s contentions are all without merit. They are all overruled. The evidence is abundantly sufficient to support the conviction.

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

MORRISON, Judge

(concurring).

I agree to the affirmance of this conviction because it was appellant’s counsel who made the charge and introduced the evidence about the murder at the juvenile hearing.


author: WILSON, Justice.

text:
    George E. MARSHALL et al., Appellants, v. CITY OF WEST UNIVERSITY PLACE, Appellee.
    No. 3737.
    Court of Civil Appeals of Texas. Waco.
    Oct. 12, 1961.
    Rehearing Denied Nov. 2, 1961.
    Holman, Saccomanno & Clegg, Houston, for appellants.
    Paul Strong, Houston, for appellee.
   WILSON, Justice.

Appellants are the owners of twelve lots fronting on the north line of Bellaire Boulevard, which is the south boundary of the. City of West University Place, a suburb of Houston. They failed in efforts before the city zoning and planning board, the City Commission, and the District Court to have their lots rfezoned from residential to business designation on allegations of changed conditions. They assert the action of the Commission is arbitrary, capricious, unreasonable and an abuse of discretion; and that appellee’s 1937 zoning ordinance is unconstitutional as applied to their property, as being confiscatory and having no substantial relation to public welfare.

Appellants’ basic position here is to the effect that they are “out of court” if we apply the tests and rules of presumed validity stated in City of Dallas v. Lively, Tex.Civ.App., 161 S.W.2d 895, 898, writ refused. We are asked to reconsider and modify those principles in this case. They have heretofore been reconsidered and confirmed in City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 45; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477, 480, 481 and cases cited. Writ of error was granted in City of El Paso v. Donohue, Tex.Civ.App., 344 S.W.2d 185. We will not re-state those rules which impose on appellants the extraordinary burden of showing that “no controversial or issuable facts or- conditions existed” which authorized exercise of discretion reposed in the municipality in its denial of their application.

From stipulations and unchallenged findings of the trial court it is established that in 1937 the city adopted a zoning ordinance by which the western half of the city, including plaintiffs’ lots, was restricted to residential use. Initial validity of the ordinance is conceded. When the ordinancé was adopted plaintiffs’ lots were also restricted by deed covenants, subsequently, expired, to residential use. All but two of their lots were acquired after adoption of the ordinance.

Bellaire Boulevard, south boundary of the lots, is 200 feet wide, being divided by an esplanade. Across this boulevard opposite plaintiffs’ property is another suburban municipality, the land in which has been unrestricted or zoned for business use at all material times.

Of the lots involved, four contain single family dwellings built before 1940, one of which is rented; the other lots are vacant. Appellee’s population has increased from 6,000 in 1947 to 17,500 at time of trial. Plaintiffs’ lots are contiguous, except for intervening streets, extending the entire width of two blocks and part of another. In 1940 the ordinance was amended to permit construction of a two-story telephone exchange across a street immediately east of the property in question. In 1946 the remainder of the block east of the telephone exchange, and a large portion of a block still further east adjacent to South-side Place (another city) were re-zoned for retail business purposes and are occupied by retail business establishments. In 1953 the ordinance was amended to permit construction of a Y. M. C. A. building, with parking and play area, on a tract fronting Bellaire Boulevard at the west end of the twelve lots here involved. The sector three blocks east of plaintiffs’ lots in the City of Southside Place is zoned for business use.

Plaintiffs say that as late as 1950 the surrounding area was “still residential in character,” but thereafter its character was altered by changed conditions so that their property is now completely undesirable and no longer suitable for residential purposes; that refusal to re-zone prevents the only use to which it is reasonably adaptable; and that its value has been so reduced as to result in confiscation. They contend the ordinance is invalid as to them, based on further findings of the trial court of changes in condition: traffic on Bellaire Boulevard has increased tenfold; the growth of the area in retail business has resulted in part from re-zoning by appellee; business use of the area across Bellaire from appellants’ land; complete use of all West University Place residential lots, and virtually complete use of all business lots. They rely on the further finding that their property is no longer “desirable” for residential purposes, the court having refused to find it was no longer “suitable” therefor. They urge the court failed to balance equities, having found reduction in value in their lots under the circumstances; and that their value for business use would be four times as great as present residential value. The court determined, among numerous other findings, that lots immediately to the rear of plaintiffs would suffer a small reduction in value if plaintiffs’ lots were rezoned, but would be more desirable, under proper regulation, as residential property; and that residential building loans were available to plaintiffs only at excessive interest rates and in reduced amounts.

The court found that each of appellants’ lots were reasonably capable of use for single family residential purposes. The evidence shows that they now have a substantial, though reduced, value. It was also found that appellee’s present water lines for fire protection are inadequate and would be overtaxed by the re-zoning sought; that fire hazards might possibly be increased, although appellants could prevent this by enforcement measures; that “severe traffic and parking conditions” would be increased to a small degree; that “the possibility of increased crime'Within a business area can place an additional burden on an already undermanned police department”; that traffic hazards would be somewhat increased on Bellaire, which, “already running at approximately full capacity, would have some additional traffic” in a presently congested area; that additional traffic generated by business establishments on these lots might result in street construction, right-of-way acquisition and repair expenditures costing $32,000. The city had previously denied eleven other re-zoning applications, and after successfully resisting the attack in Gullo v. City of West University Place, Tex.Civ.App., 214 S.W.2d 851, writ dis., appointed a citizens committee in 1953 to study zoning problems in “fringe areas” such as plaintiffs’. The committee report recommended against further zoning changes in such border territory. The court here found that granting plaintiffs’ requests would be regarded as a precedent for other lots.

Art. 1011i, Vernon’s Ann.Civ.Stats., provides that neither the State Zoning Act nor appellee’s zoning ordinance applies to the telephone building east of the tracts in question; and the court concluded that the Y. M. C. A. building on the west was j permissible use in a residential district, not being devoted to business use.

Appellants’ case presents a persuasive appeal to equity, but from this record we are unable to say that the action of the city was arbitrary or unreasonable, or that there is a clear abuse of municipal discretion, or that there is no issuable fact authorizing the city’s exercise of the discretion vested in it under applicable rules.

We do not consider the facts here to be comparable to those in City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038.

Appellants attack the action of the city on the ground that the conduct, desires and protests of other property owners in the immediate vicinity were given weight and consideration. Twenty-five owners of residences behind plaintiffs’ properties petR tioned the zoning and planning board to deny appellants’ application, and their vigorous protests at the public hearing appear to have influenced action of city officials. Appellants were represented by counsel at the hearings, and there is nothing to indicate action without full opportunity for appellants to be heard; and they did express themselves fully. The voluminous record shows existence of issuable and controversial facts and conditions supporting exercise of discretion in the action taken, and does not establish appellee relinquished or delegated its discretion and authority to the protestants. Art. lOlle contemplates consideration of the interests and desires of owners such as those protesting here, and such consideration did not invalidate the action taken. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d 704, 708; Reichert v. Hunter’s Creek Village, Tex.Civ.App., 345 S.W.2d 838, 844, writ ref. n. r. e.; Gullo v. City of West University Place, Tex.Civ.App., 214 S.W.2d 851, 853, writ dis.

We have considered each of appellants’ points, which are overruled.

Affirmed.


author: WALTER, Justice.

text:
    STATE of Texas, Appellant, v. TEXAS STANDARD LIFE INSURANCE COMPANY, Appellee.
    No. 3647.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 13, 1961.
    Bob E. Shannon, Asst. Atty. Gen., for appellant.
    T. C. Wilkinson, Brownwood, tor appel-lee.
   WALTER, Justice.

Texas Standard Life Insurance Company was granted permission to sue the State of Texas. In a non-jury trial, the insurance company recovered judgment against the State for $1,500 paid the Board of Insurance Commissioners as fees under an alleged mutual mistake of fact and implied duress. The State has appealed, contending the Court erred (1) in entering judgment for the insurance company because, during the 1954-1958 period, the insurance company was authorized to write insurance under Article 3.53 of the Texas Insurance Code, V.A.T.S. (2) in finding that the insurance company had paid said fees as a result of a mistake of fact (3) in finding that the Board accepted said fees under the belief that the company was writing insurance under said Article 3.53 because there is no evidence to support such finding (4) in finding that the insurance company paid said assessments under implied duress and (5) in its finding of fact number 5 because same is contradictory and inconsistent. The State also contends the holding that the insurance company never intended to write insurance under said Article 3.53, but intended to confine its activity to Article 3.50, is contrary to the great weight and preponderance of the evidence.

The insurance company’s charter authorized it to write life, health and accident insurance. Article 3.53 of the Texas Insurance Code governs individual credit health, life and accident insurance. Article 3.50 of said code governs group credit life insurance. For the privilege of writing credit insurance under Article 3.53, an annual fee of $300 is required. No such fee is required under Article 3.50.

The insurance company was incorporated under the laws of the State of Texas on June 21, 1954. On September 1, 1954, the president of the insurance company requested the Board to furnish him the maximum rate schedules and other information about writing insurance under Article 3.53. On September 21, 1954, the insurance company wrote the following letter to the Board:

“In accordance with the provisions of Section 7, Article 3.53 of the 1951 Texas Insurance Code we submit herewith for approval:
“(a) Form for written application for credit insurance.
“(b) Form of credit insurance policy to be issued by the Texas Standard Life Insurance Company.
“ (c) Certificate for individual coverage in excess of group protection.
“We shall thank you to advise when these forms are approved.”

The Board made the following reply:

“We acknowledge receipt of the policy and application forms submitted with your letter of September 21. Our records do not reveal payment of the $300.-00 fee assessed by Board Order dated March 19, 1954, a copy of which is herewith enclosed. Therefore, we are unable to approve the individual credit policy form at this time.
“Since Article 3.53 specifically exempts from its operation those policies which are issued by authority of Article 3.50, the group creditor policy can be written without payment of the $300.00 fee. The draft of the group contract is being referred to the Actuarial Division for its review.”

Texas Standard submitted to the Board of Insurance Commissioners specimen policies of group life insurance to be written under Article 3.50. It also submitted specimen policies for credit life insurance and credit health and accident insurance to be written under Article 3.53. The forms for writing insurance under both articles were approved by the Board. During each of the years that the insurance company paid the annual $300 fee, it could have legally written insurance under both articles. After the insurance company had paid the 1958 assessment, it concluded that said assessments had been erroneously made and collected because it had not been writing credit life or credit health and accident insurance as defined in Article 3.53, but had been writing group credit life insurance under Article 3.50.

While testifying, the president of the insurance company was asked, “Well, since you did write for these materials, did you think that at some future date that you might want to write under 3.53 ?, he answered, “Didn’t know. We might * * * We don’t write individual policies now. We might sometimes because we’re authorized to.” and, when asked,, “Then you contemplate that you, perhaps, sometimes in the future might write it?”, he answered, “Might do it, yes.” Our Supreme Court in the case of Stanolind Oil & Gas Company v. State, 136 Tex. 5, 145 S.W.2d 569, 570, held: “The authorities hold that where a litigant admits positive and definite facts, which if true would defeat his right to recover, and such statements or admissions are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, he is conclusively bound by such admissions, and cannot successfully complain if the court directs a verdict against him.”

Our Supreme Court in Pennell v. United Insurance Co., 150 Tex. 541, 243 S.W.2d 572, 576, said, “The settled general principle applicable here is that ‘as between individuals, money voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.’ ” In the case of Stegall v. McLennan County, Tex.Civ.App., 144 S.W.2d 1111, 1113, (Dis.J.C.), the court held, “We think the rule in Texas is: ‘When money is paid under a mutual mistake of law, the mistake of law, in and of itself, is no ground for recovering it back. All persons are equally presumed to know the law, and in such case both parties are equally at fault, and equally innocent of wrong done. To admit ignorance of law to be legally recognized as a fact sufficient in itself to prevert the will of the parties doing the act, so that it should be said and held that the will did not concur with the act done, thereby relieving him from the responsibility for and the consequences of the act, would render the administration of the law impracticable; and hence the rule is founded upon a political necessity, as well as upon public policy.” ■“The distinction between a mistake of fact and a mistake of law is that a mistake of fact exists where a person understands the facts to be other than they are, whereas a mistake of law exists where a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.” 58 C.J.S. Mistake, page 832.

We find said assessments were not made under a mutual mistake of fact and the insurance company is not entitled to recover said assessment. The evidence shows conclusively that the president of the insurance company had read the applicable portions of the insurance code and had been furnished all applicable information by the Board. The evidence further conclusively establishes that the insurance company was authorized and had the privilege of writing insurance under Article 3.53. If they were laboring under any misapprehension as to the legal consequences of these facts and circumstances that would be a mistake of law, not a mistake of fact.

The judgment is reversed and rendered that the insurance company take nothing.