author: LEDDY, J. OURETON, O. J.

text:
    COUNTZ et al. v. MITCHELL et al.
    No. 1246-5676.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.

      J. S. Braeewell, of Honston, for appellants.
    Dean & Humphrey, of Huntsville, for appel-lees.
   LEDDY, J.

The Court of Civil Appeals for the First Supreme Judicial District presents the following certificate and questions:

“This appeal, which is now pending in this court on motion for rehearing, is from an order of the court below denying a temporary injunction in a suit for injunction brought by appellants against appellees.
“The suit is brought 'by the trustees of Common School District No. 2 of Walter County against the County Superintendent of Schools, the County Board of Education, and the County Commissioners Court, to restrain any declaration of the result of an election held in several school districts of the county adjoining the Hu-ntsville Independent School District to determine the question of the annexation of the adjoining districts to the Huntsville District, and to restrain ‘the entering of any order by virtue of said election which would purport in any manner to affect or impair the rights of Common School District No. 2’, and to require defendants to continue to recognize plaintiffs as the lawful trustees of School District No. 2.
“The election, the result of which is sought to be annulled, was held in pursuance of the following resolutions of the County Board of Education passed on August 5, 1929:
“ ‘Whereas, the County Board of School Trustees of Walker County, Texas, has been for some months engaged in the task of grouping the Common School Districts of Walker County for rural high school purposes, and it appearing to the Board that it will be for the best interest of the Common School Districts adjacent to the Huntsville Independent School District, and particularly the districts hereinafter named, and that the pupils of said Common School Districts will have better high school privileges by annexing the territory in said' Districts hereinafter set forth to the Huntsville Independent School District;
“ ‘Be it therefore resolved by the County Board of School Trustees of Walker County, Texas, that the following School Districts, to-wit, Common School Districts No. Two, Nine, Twelve, and the Phelps Independent School District, should be annexed to the Huntsville Independent School District, as provided by Articles 2922a and 2922c of the Revised Civil Statutes of 1925, as amended by the Acts of the Thirty-Ninth Legislature, Chapter 50 [59] page 204, and by the Acts of the Fortieth Legislature, First Called Session, page 206, Chapter 78; and it further appearing to said County Board of Trustees that said territory, proposed to be annexed to the Huntsville Independent School District, aggregates more than one hundred (100) square miles, but does not contain more than seven (7) Common School Districts ; and it further appearing to said Board that, in order to effect said annexation of said School Districts, it will be necessary for an election to be held throughout the entire territory to be affected by such annexation, and that the County Judge of Walker County is authorized to and is the proper official to issue the Order for such an Election:
“ ‘It is further resolved that the Hon. P. H. Singeltary, County Judge of Walker county, Texas, be and he is hereby requested to order an election, to be held in the entire territory, including the Huntsville Independent School District, Common School Districts No. Two,’ Nine, Twelve, and the Phelps Independent School District, for the purpose of determining whether .the territory embraced within the said Common School District shall be annexed to and made a part of the Huntsville Independent School District, under the laws of the State of Texas, aforesaid.
“ ‘It is- further resolved that a copy pf this resolution, signed by the Chairman of the Board and attested by the Secretary, be delivered to the said Hon. P. H. Singeltary, County Judge of Walker County, and shall serve as a formal request of thiá Board for ■the issuance of said Election Order.’
“A copy of these resolutions duly signed and attested was presented to the County Judge, and in compliance with the request therein contained, the following proclamation and order of election was made:
“ ‘The State of Texas, County of Walker.
“ ‘Whereas, I, P. H. Singeltary, County Judge in and for Walker County, Texas, have heretofore received from the County Board of School Trustees of Walker County, Texas, a copy of an order or resolution duly adopted and. entered of record- by the said County Board of School Trustees of Walker County, Texas, on the 5th day Of August, 1929, grouping and undertaking to group Common School Districts Numbered Two, Nine, Twelve, and the Phelps Common School District, with the Huntsville Independent School District, and undertaking to organize a rural high school district by said grouping, and by annexing said Common School Districts to the Huntsville Independent School District; and
“ ‘Whereas, the combined territory of the four Common School Districts sought to be annexed to the said Huntsville Independent-School District, and the Huntsville Independ ent School District exceed one hundred (100) square miles, such grouping of said Common School Districts with the HuntsyiÚe Independent School District, for the purpose of forming a. rural high school district, can not be effected except by an election submitted to the qualified voters residing in said Common School Districts and said Independent School District, and which said order and resolution of the County Board of School .Trustees of Walker County requests me to order an election for the purpose of annexing the territory embraced within said Common School Districts to the Huntsville Independent School District, under and by virtue of Articles 2922a and 2922c of Chapter 19a, Title 49, of the Revised Civil Statutes of the State of Texas of 1925, as amended by the Acts of the Thirty-ninth Legislature in 1925, page 304, [204] Chapter 59, and as amended in 1927 by the Fortieth Legislature, First Called Session, page 206, Chapter 78; and
“ ‘Whereas, after considering said resolution, requesting such election, and it appearing to me, in my official capacity as County Judge of Walker County, Texas, that it will be for the best interest of the citizens residing in said territory and for the best interest of the patrons of the public schools affected by such election, that such election be granted:
“ ‘Now, therefore, I, P. H. Singeltary, in my official capacity as County Judge of Walker County, Texas, do hereby order that an election be held on the 30th day of November, 1929, in the territory embraced by the Huntsville Independent School District, as created and amended by an Act of the Thirty-first Legislature on March 9, 1917, Chapter 45, page 180, Local and Special Laws passed by the Thirty-fifth Legislature at its regular session, and as enlarged by the annexation of Common School Districts Eighteen and Nineteen, by an order and resolution of the County Board of School Trustees of Walker County, Texas, duly made .and entered of record as of the first day of, June, 1929, to which said Huntsville Independent School District the territory hereinafter described is proposed to be annexed, and the territory now included in the Huntsville Independent School '.District, together with that included in the Districts to be annexed thereto, in accordance with, this Election Order, and which said election shall also be held in the territory comprising said other School Districts as follows: .
“ ‘Common School District No. Two as set forth.and defined on page 91 of the Minutes of the County Board of School Trustees of Walker County, Texas; also in Common School District No. Nine, as defined in Book “H,” page 114, of the Minutes of the Commissioners’ Court of "ÍValker County, Texas; also in Common School District No. Twelve, as defined in the Minutes of the Commissioners’ Court of Walker County, Texas, Book “B,” page 295; also in the Phelps Common School District, as created and defined by Special Act of the Legislature, approved March 28, 1917, Chapter 92, page 365, of the Local and Special Laws of the Thirty-Fifth Legislature.
“ ‘That said election shall be held at the regular voting places in the territory affected, as follows:
“ ‘In Election Precincts No. One and Fourteen at Huntsville, Texas ; in Election Precinct No. Eight at Phelps; and in Election Precinct No. Ten at Bath; and the regular election officers heretofore appointed by the Commissioners’ Court of Walker County, Texas, are hereby designated as the officers of said Election.
“ ‘Said election shall be held in accordance with the provisions of the Election Laws of the State of Texas, and all qualified voters residing in said territory shall be entitled to vote at said Election.
“ ‘All voters residing in the Huntsville School District and in Common School District No. Two shall vote at Huntsville, Texas; all voters residing in the Phelps Common School District and in Common School District No. Nine shall vote at Phelps; and all voters residing in Common School District No. Twelve shall vote at Bath.
“ ‘Those in favor of the proposition to annex said territory to the Huntsville Independent School District shall have written or printed on their ballots the following:
“ ‘ “For the annexation of the territory to the. Huntsville Independent School District.”
“ ‘And those opposed to said proposition shall have written or printed on their ballots:
“ ‘ “Against the annexation of territory to the Huntsville Independent School District.”
“ ‘The returns of said election shall be made to the County Clerk of Walker County, Texas, and shall be canvassed by the Commissioners’ Court of Walker County, Texas, and the result thereof declared and entered of z-ecord in the Election Records of Walker County, Texas, and foe result certified by the County Clerk of Walker County, Texas, and to the Board of Trustees of the Huntsville Independent School District.
“ ‘The Sheriff of Walker County shall give notice of said election by posting copies of this order in at least one public place in each School District in which said election is ordered for three consecutive weeks before the date of election, and he is further directed to have a copy of said order of -election published for three weeks prior to said election in some newspaper of general circulation that has been continuously and regularly published for .one year, previous to the date of this order, in Walker County, Texas, the date of the first publication being riot less than twenty-one (21) days prior to the date of election.
“ ‘Dated at Huntsville, Texas, this SOth day of October, 1929.
“ ‘P. H. Singeltary, County Judge,
“ ‘Walker County, Texas.
“ ‘Attest: S. W. Robi-nett, County Clerk,
Walker County, Texas.’
“This order of election was duly posted and published, as therein directed, ’by the Sheriff of Walker County, and the election was duly and regularly held and conducted on the day named in the order.
“The returns from the election show that, in the two voting precincts of the Huntsville District in which the voters of that and Common School District No. 2 voted as directed by the order, 242 votes were east ‘for’ and 30 ‘against’ annexation. At the other voting places -named in the order the total number of votes ‘for annexation’ was 21, and ‘against annexation’ 14.
“It appears from the record that the voting places named in the order are all the regular voting places of the voters in the territory embraced in the order. It is further shown that while the Phelps School District was created an independent district by an act of the legislature passed in 1917, it .had not functioned -as such for a number of years, but was organized and functioning as a common school district, and was so recognized by the commissioners’ court and school authorities of the county.
“Each of the districts involved in the creation of the proposed rural high school district has the scholastic population required by Article 2922a, before cited.
“The questions presented by this appeal are not wholly free from doubt, and because of this fact and of the obvious advantage to the public of having -a final decision of these questions as early as possible, we deem it advisable to certify for your decision the questions hereinafter stated which arise upon the foregoing statement of the case, and are properly presented by appellants’ brief.
“Eirst: Was the election void under Articles 2922a and 2922c because the -trustees of Common School District No. 2 did not consent to the proposed annexation of that district to the Huntsville Independent School District for the purpose of forming,-with the other districts named in the order of election, a rural high school district?
“Second: Was the election void because not called by the authority empowered by the statute to make the call?
“Third: Was the published notice .of the election for more than twenty-one days prior to the day on which the election was held sufficient?
“After due consideration we have answered the first two questions in the negative and the thix-d in the affirmative, but upon -motion for rehearing, for the reasons before stated, we have concluded the questions should be certified for your decision.”

Eor the reasons given by the Court of Civil Appeals in its opinion, with which we are in accord, the first question certified is answered in the negative. The second and -third questions we answer in the affirmative.

Appellants contend that the election was held without lawful authority and is void because it was called and -the time -and place fixed for its holding by the county judge instead of the county board of trustees.

Appellees insist that the county judge was the proper authority to call the election, but, if not, then that such election was in effect called by the county board of trustees because the county judge in ordering the election copied the order passed by such board.

An election -held at the time and place fixed by law is valid even though no order or call has been issued therefor, as the right to hold such an election is derived from the law and not from any notice. O. J. vol. 20, § 79, p. 96.

. A failure to give notice of such an election does not render the same nugatory, -as every person is required to take notice of what the statute prescribes. People v. Cowles, 13 N. Y. 350; People v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; Mechem on Public Offices and Officers, § 174; R. C. L. Vol. 9 § 13.

But, where the election is a special one, to be called and the time and placed fixed by some authority, it is essential to the validity thereof that it be called or ordered by the very authority designated by law and none other. Adsit v. Secretary of State, 84 Mich. 420, 4S N. W. 31, 11 L. R. A. 534; Stephens v. People, 89 Ill. 337; State v. Langlie, 5 N. D. 594, 67 N. W. 958, 32 L. R. A. 723; Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am. St. Rep. 786, and note.

The validity of the election in question can only be sustained upon the 'theory that the county judge has been vested by law with authority to order the same. We are unable to find any provision of law which authorizes the county judge to call the election described in article 2922c, R. S. 1925, and counsel for appellee have not cited us to any st-atute which attempts to confer such authority. The county judge has been authorized in various statutes to oi’der -special elections provided for, but there is no statute conferring general power upon the county judge to order special elections. If such a statute existed, it might be inferred that the Légis-lature in enacting article 2922c intended for the county judge to exercise the power conferred-thereby to order the election in question.

Nor is there any provision in the rural high school act, of which article 2922c is a part, expressly conferring authority upon the county board of trustees to order the election provided for in said article, and if such power exists it must be held to be conferred by implication.1

The Legislature will be presumed to have known at the time of the passage of the rural high school act that there was no general statute placing the duty upon the county judge or any other officer or tribunal to order the character of election provided for in article 2922c, hence it must have contemplated that this authority was to be exercised by the county board of trustees in whom was expressly vested the power to form rural high school districts by grouping common or independent districts. In certain instances the county trustees are authorized to form such districts without the necessity of submitting the question to a determination of the electorate of the districts involved. Article 2922a, R. S. 1925, as amended by Acts 39th Leg. (1925) e. 59, and Acts 40th Leg. (1927), 1st called Sess., c. 78 (Vernon’s Ann. Oiv. St. art. 2922a). They are also directed to form rural high school districts under the conditions specified in section 2922c, but their authority in this respect is limited to there first being an approval of the majority of the qualified voters of the proposed district at an election called for such purpose. Under these circumstances we think it may be reasonably and fairly inferred that it was within 'the contemplation of the lawmaking body that the agency charged with the duty of forming such districts and of their supervision was clothed with power to call the election required, fix the time and place thereof, canvass the result, and thus determining whether the proposed district should be created. This construction is permissible under the rule -that a statute should be so construed as to permit in the fullest manner the accomplishment of the apparent policy and object of the Legislature in enacting it.

It is immaterial that there was a full and fair expression of the voters of the proposed district, as there can be no valid election if the same has not been called by lawful authority. The rule on this question is thus stated in Oye. vol. 15, p. 317: “There can be no valid election without -some lawful authority behind it. The right to hold an election cannot exist or be lawfully exercised without express grant of power by the Constitution or Legislature.”

If it had been shown that the entire electorate of the district to be affected had unanimously voted in favor of the question submitted in -the election, it would not result in a legal annexation of the school districts to the Huntsville independent district, for if the election was illegally called, the vote therein was without any legal effect whatever, Supervisors of Marshall County v. Cook, 38 Ill. 44, 87 Am. Dec. 282; Stephens v. People, 89 Ill. 343.

In the last-cited case it was held that an election to authorize the issuance of county bonds called by the county court instead of the supervisors of the county as required by law was without authority of law and bonds issued in pursuance thereof were absolutely void.

We are u-nable to assent to the correctness of the proposition announced by the-. Court of Civil Appeals in its opinion in this ease that because the county judge in ordering the election copied the resolution passed by the county board of trustees in his order the practical result was that the election was ordered by such trustees. The record shows that the trustees by resolution merely petitioned the county judge to order the election. They did not attempt to fix the time nor the place for holding same. It is essential that the time and' place for holding a special election must either be fixed by law or appointed by the legally authorized officials. Town of Hendersonville v. Jordan, 150 N. C. 35, 63 S. E. 167; McCrary on Elections § 141; Kenfield V. Irwin, 52 Cal. 164; State v. Young, 4 Iowa, 561; C. J. vol. 20, § 87, p. 101.

If the duty of calling the election in question devolved upon the county board of trustees, then that agency, and it alone, was authorized to fix the time and place for holding such election. It could not delegate the performance of this duty to the county judge of the county.

It also appears that the Legislature has failed to fix the length of time for giving notice of such an election. In the absence of such provision, we think the law implies there must be a reasonable time. C. J. vol. 20, § 87, p. 101; Kenfield v. Irwin, 52 Cal. 164.

Inasmuch as the Legislature has in a number of statutes calling for elections upon similar questions provided for twenty-one days’ notice thereof, we think it may be said as a matter of law that the giving of such notice for this length of time would constitute reasonable notice, and it is for this reason we answer the third question in the affirmative.

We recommend that the questions certified be answered as indicated herein.

OURETON, O. J.

Opinion answering certified questions adopted and ordered certified.


source: Caselaw Access Project

author: CRITZ, J.

license: Public Domain

text:
    SAXON et al. v. ATCHISON, T. & S. F. RY. CO.
    Motion No. 9518; 1409-5601.
    Commission of Appeals of Texas, Section A.
    May 20, 1931.
    Winbourn Pearce and Walker Saulsbury, both of Temple, for plaintiff in error.
    Turney, Burges, Culwell & Pollard, of El Paso, for defendant in error.
   CRITZ, J.

The railway company, in its motion for rehearing, earnestly insist that there is an utter failure of evidence in the record to show how the accident in the instant case happened. We have again carefully examined the statement of facts, and still adhere to the holding in our original opinion, 36 S.W. (2d) 228, 230, that the evidence raises a fact issue as to how the accident was produced. In this connection,’however, we withdraw the last paragraph of the original opinion, beginning with the words, “It is true that the evidence shows,” etc., and ending with the words, “this issue was fairly presented to the jury and found as above stated,” and substitute therefor the following:

There is warrant in the evidence for the inference that the deceased intended to get on the train, but we are unable to find any evidence in the record, and none has been pointed out to us, showing that he actually made the attempt; that is, that he actually caught hold of the train. On the other hand, there is circumstantial evidence to, in law, support a fact finding that he was caused to stumble and fall under the train, by stepping into the hole or soft place in the pathway along the side of the track and in which pathway he was running. This issue was fairly presented to the jury and found as above stated.

Nor can it be said that the inference of taking hold of, and falling from, the train, was equally as warranted as the finding made by the jury. The evidence places the deceased, when last seen, in the pathway running toward the soft place, where the footprint was found, and within a few feet of same. . It would be a more reasonable inference that the deceased continued in what he was actually doing for the few additional feet necessary to travel than that he changed his course and took hold of, and was thrown from, the moving train. Moreover, “it is presumed that deceased proceeded with diligence and due care” (A., T. & S. F. Railway Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281, 283, 74 L. Ed. 896), and that he “did not voluntarily place himself in a position of peril” (Missouri, K. & T. Railway Co. v. Luten, 228 S. W. 159, 160, Supreme Court of Texas), which presumption “is proper to be considered by the jury as a circumstance weighing in favor of the contention of the plaintiffs, and may have been so considered by the jury” (same case last cited).

We.recommend that the motion for rehearing be in all things overruled.


text:
    GERNETH et al. v. GALBRAITH FOX WORTH LUMBER CO.
    Motion No. 9531; No. 1411-5605.
    Commission of Appeals of Texas, Section A.
    May 20, 1931.
    ■See, also, 6 S.W.(2d) 215.

      H. D. Stuart and R. R. Bell, both of Oklahoma City, Old., and W. S. Moore, of Gaines-ville, for plaintiffs in error.
    Will D. .Garnett, of Gainesville, and Under-' wood, Johnson, Dooley & Simpson, of Amarillo, for defendant in error.
   CRITZ, J.

This ease is before us on motion for rehearing filed by the lumber company. We have read and carefully considered this motion, and while we still adhere to the views expressed in our original opinion, 36 S.W.(2d) 191, on the matters therein discussed, we find that the motion calls to our attention an assignment of error which we overlooked in our former opinion. This matter is presented by the lumber company’s bill of exception No. 5. This bill reads as follows: ’

“Be it remembered that upon the trial of the above numbered and entitled cause in the District Court of Cooke County, Texas, said trial beginning on September 10th, and the jury returning its verdict on September 13th, 1928, the following proceedings were ha.fi, to-wit:
“The argument of said case was concluded about 4:30 p. m. September 12th, 1928, and the jury retired under the charge of the Court to deliberate upon its verdict.
“That after having deliberated from about 4:30 p. m. September 12th, 1928, the jury, at about 10 a. m. September 13th, 1928, knocked upon the door to the jury room where said jury was deliberating; that the Sheriff of Cooke County viz, Jake Wright, answered the knock of the jury and was informed that the jury wished to communicate with the District Judge, Honorable Alvin C. Owsley ; that the Sheriff communicated the request of ihe jury to Judge Owsley, who was upon the bench hearing an argument on exceptions in another case; that Owsley requested said attorneys (none of whom was an attorney in the Gerneth case) to suspend their argument, and in the absence of plaintiffs’ and defendant’s counsel in the above entitled cause, and without their consent, and without calling them to court and requesting their consent, the Honorable Alvin C. Owsley, District Judge, before whom this cause was tried, left the bench and walked into the jury room where the jury was deliberating in said cause, and the door was closed or partly closed behind him, and conferred with and communicated with said jury; that said District Judge remained in said jury room about two or three minutes with the door to said jury room closed, or partly closed; that after having been in said jury room alone with said jury for about two or three minutes, tire door to the jury room was opened and said District Judge resumed his place on the bench," and advised said other attorneys they might proceed with their argument.

That when ■ the foregoing action upon the part of the District Judge occurred, neither the plaintiffs’ nor the defendants’ attorneys were in court, and said District Judge went into said jury room and remained thereon alone with the jury for about two or three minutes with the do.or closed, or partly closed, and that this was-done without notifying the attorney’s for either plaintiffs or defendant, or notifying them- that the jury desired to consult with the District Judge; and that said conference was held between the-jury and said Judge in the jury room during deliberation, with the door closed or partly closed, and the communications between them were had in said jury-room and not in open court.

“That upon being advised as to the foregoing facts, as hereinabove set out, on September 13th, 1928, on the same day, defendant’s counsel went to the District Judge and informed him that the defendant reserved an exception to the action and conduct of the said Judge in going into the jury room alone with the jury during their deliberations and communicating and conferring with said jury with the door closed, or partly closed, and excepted to the action aDd conduct of said District Judge in remaining with said jury In said room alone for about two or three minutes, in the absence of counsel for both plaintiffs and defendant, and without their knowledge, and without requesting their presence when said request was made by the jury to communicate with the Court.
“Defendant so objected and excepted in open court on September 13th, 1928, to the action of the District Judge, as hereinabove set out, because under the law the only manner in which the Court shall confer with the jury after it has retired to deliberate upon its verdict, is clearly stated and laid down, and the trial judge is permitted to give no further instructions or confer with the jury in any manner, except in open court; and because the trial judge conferred with and communicated with the jury alone during their deliberations in the jury room with the door closed or partly closed, in the absence of and without the knowledge or consent of plaintiffs’ or defendant’s counsel and not in open court, said District Judge committed reversible error.”
“And defendant here now in open court tenders this, its bill of exceptions, and prays the Court that the same may be examined, signed and approved by the Court, and ordered filed as a part of the record in this cause.”

We think the above bill presents error which must result in remanding this cause to the district court for a new trial. Our statutes very completely and carefully prescribe the conditions in which a jury shall deliberate on its verdict. Also such statutes very carefully define the manner in which, and the conditions under which, the jury may confer with the trial judge and receive additional instructions from him. R. O. S. of Texas 1925, arts. 2194-2198.

Obedience to the above statutory provisions is necessary to preserve the right of trial by jury in an open forum. When the trial judge violates these statutes by communicating with the jury at a place not in open court, error is committed, and reversal must follow regardless of the question of injury. Texas Midland R. R. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Oas. 137; Parker v. Bailey, 15 S.W.(2d) 1033,1035 (Tex. Com. App. opinion approved); Corn v. Crosby County Cattle Co. (Tex. Com. App.) 25 S.W.(2d) 290.

Plaintiff in error very earnestly contends that the matter of the misconduct of the trial judge in the instant case is not properly presented for review because no evidence was heard by the trial court touching the matter presented in the bill. In support of this contention plaintiff in error cites, among others, the following cages: Harris v. Smith (Tex. Com. App.) 265 S. W.'546; Puett v. Brady (Tex. Civ. App.) 16 S.W. (2d) S32.

In the Harris Case, supra, it is shown-that the matter of misconduct of the trial judge was presented in the trial court by three affidavits attached to the motion for a new trial. No evidence whatever was heard touching the matter, and no bill of exception was reserved except the general bill based on the order overruling the motion for a new trial. Of course, such a record presented nothing to the appellate court for review. Ex parte affidavits prove nothing with reference to such matters. It follows that there was nothing in the record to support the alleged misconduct of the trial judge.

It is true that the opinion in the Harris Case says: “Our construction of article 2021 is that, if communication by the court with the jury has been alleged in the motion for new trial, the only way for the court to determine whether a new trial shall be granted because of such communication is for the court to hear evidence thereon by examination in open court.” We think the above expression in the Harris Case is error and should not be followed.

In the Puett Case, supra, which is by the Court of Civil Appeals, the above set out portion of the opinion in the Harris Case is quoted with approval. Of course, when we overrule this portion of the opinion in the Harris Case we also overrule the same holding in the Puett Case. At this point we cali especial attention to the fact that the quoted portion of the opinion in the Harris Case is dicta, and was not at all necessary to a decision of that case.

In the case at bar the matter of misconduct on the part of the trial judge is fully presented by bill of exception duly approved and certified to by the very judge who committed the act of misconduct. In such a case it would be idle to have the trial judge hear evidence. The matter must of necessity occur in the presence and hearing of the court, who personally knows of all the facts relating thereto. In such a case the error is properly presented by bill of exception duly approved by the trial judge.

At this point we wish to say that it is not intended by this opinion to hold that' the judge who tried .this case committed any moral wrong. The misconduct involves only a legal error.

Eor the reasons stated we recommend that the motion for rehearing filed herein by the lumber company be granted; that the former judgment of this court reversing the judgment, of the Court of Civil Appeals and affirming the judgment of tie district court be set aside; and that a new judgment be' now here rendered as follows: That the judgments of the Court of Civil Appeals and district court be both reversed and set aside, and this cause remanded to the district court for a new trial.

CURETON, C. J.

Previous judgment set aside, and the judgments of the Court of Civil Appeals and District Court are both reversed, and cause remanded, as recommended by the Commission of Appeals.


author: ■LEDDT, J. CURETON, C. J.

text:
    DALLAS RY. & TERMINAL CO. v. DARDEN.
    No. 1264-5664.
    Commission of Appeals of Texas, Section B.
    May 16, 1931.

      Worsham, Rollins, Burford, Ryburn & Hincks, of Dallas, for plaintiff in error.
    Smithdeal, Shook, Spence & Bowyer and. Caldwell, Gillen, Francis & Gallagher, all of Dallas, for defendant in error.
   ■LEDDT, J.

Defendant in error, who was sixty-six years of age, conducted a small suburban store in the city of Dallas, situated on Bowen street, over which street plaintiff in error operated a double track line of street railway. The track nearest defendant in error’s place of business was located about ten feet from the curb, approximately six feet of which space was paved and the remainder nearest to the curb being rough and unpaved. On the occasion in question defendant in error’s automobile was parked near the curb in front of his place of business. He received an order for some drugs to be delivered, got in his car, and drove in an angling, direction toward the street car line, in order to avoid driving over the rough portion of the street next to the curb. Upon reaching the car line, one of plaintiff in error’s street ears approaching from the rear collided with his automobile, inflicting upon him serious and permanent injuries.

He recovered a judgment against plaintiff in error, based upon favorable findings of a jury, which determined that he was free from contributory negligence, and his injuries were not the result of an avoidable accident, but were proximately caused by the negligence of plaintiff in error’s motorman in operating said street car in the following respects: (a) The discovery of defendant in error’s peril in time to have avoided the accident by the use of the means at his command; (b) failure to lessen the speed of the car after acquiring knowledge of defendant in error’s position upon the track; (c) failure to give proper warning by sounding the gong; (d) operating tke car at an excessive rate of speed; (e) failure to exercise proper care to keep a lookout for persons upon the track; (f) failure to keep the car under proper control.

The first proposition presented by plaintiff in error in its application for writ of error is as follows: “The issue of accident being raised, as found by the Court of Civil Appeals, and being in fact raised by the pleadings and the evidence, the Court of Civil Appeals erroneously held that the error of the trial court in placing the burden of proof upon the defendant was harmless.”

• If the issue of unavoidable accident was raised by the evidence, the error of the trial court in placing the burden of proof on such issue upon plaintiff in error was not a harmless one. Rosenthal Dry Goods Co. v. Ilille-brandt (Tex. Com. App.) 7 S.W.(2d) 521.

In its original opinion, 23 S.W.(2d) 739, 743, the Court of Civil Appeals did not find whether the issue of unavoidable accident was raised by the evidence, but on rehearing it expressly found that such issue was not raised. Its conclusion upon this point on rehearing is thus stated: “The language of the original opinion disposing of appellant’s assignments attacking the court’s charge on the issue of unavoidable accident leaves room for an inference that this charge was held to be harmless solely on the ground of the findings of the jury on other issues. We thought then and think now that the manner in which the court submitted the issue of accident, while erroneous, was harmless, because that issue was not raised by the evidence. The testimony as to how the collision occurred was very definite, and clearly showed that the resulting injury was due either to the negligence of the motorman in charge of the street car, or to the plaintiff in driving his automobile on the track in front of the street ear. There was no support in the evidence for the conclusion that the collision occurred without fault of either party. The submission of that issue was objected to by the ap-pellee .upon the grounds here stated, and that objection should have been sustained. We therefore conclude that the judgment should not be reversed for the erroneous submission of an issue not raised by the evidence.”

The granting of the application for a writ of error in this ease was no doubt induced by the statement in the application that the Court of Civil Appeals found the issue of unavoidable accident was raised by the evidence. The above quotation from the opinion of that court shows, however, that it found directly to the contrary.

A careful review of the facts contained in the record convinces us that th'e finding of the Court of Civil Appeals that such issue was not in the case is correct; hence its conclusion that the error in the charge on this issue was harmless is a sound one.

An unavoidable accident is one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every man bound to exercise. If the accident complained of could have been prevented by either party, by the use of means suggested- by common prudence, it was not unavoidable. Galveston, H. & S. A. Ry. Co. v. Gormley (Tex. Civ. App.) 35 S. W. .488; Hodgson v. Dexter, 12 Fed. Cas. 283, No. 6565; Smith v. Southern Ry. Co., 129 N. C. 374, 40 S. E. 86; Wilson v. Roach, 101 Okl. 30, 222 P. 1000; Dygert v. Bradley, 8 Wend. (N. Y.) 469.

It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the iss’ue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of -each particular ease must be examined with the view of ascertaining whether there is presented a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law.

No such theory is presented by the evidence in this case. If the defendant in error, as contended by plaintiff in error, drove his automobile in an angling direction from the curb and on to its railway track, it was the duty of the motorman, in the exercise of proper caution, to keep a lookout to discover his approach and give warning by sounding the gong. If this was done, and defendant in error drove his car on the track at such a distance from the street car that it could not have been stopped by the motorman, when the street car was in plain view and the warning signal being sounded, then clearly the accident was the result of his own negligence. On the other hand, if he drove the automobile on the railway track when the street car was such a distance away as to render him free from any negligence, then the operator of the street car was guilty of negligence in not avoiding the accident by the use of the means at his command.

The collision between the street car and defendant in error’s automobile occurred upon a street in broad open daylight, at a time when there were no obstructions of any kind between the street car and the automobile. ■ There was nothing to obstruct the view of defendant in error toward the street car, and the automobile was at all times in plain view of the motorman. It would be going too far to say that, when a street car and an automobile are operated upon a street, under such conditions as are here shown, a collision between the two cannot be avoided by due and proper care upon the part of both parties. To so hold would be in effect to declare that in all eases where a collision occurs between a street car and an automobile the issue of unavoidable accident is necessarily presented.

Our conclusion is, the evidence, when most favorably construed, does not present the issue of unavoidable accident. Wichita Falls Tr. Co. v. Craig (Tex. Civ. App.) 250 S. W. 733; Russell v. Bailey (Tex. Civ. App.) 290 S. W. 1108; Boyles v. McClure (Tex. Com. App.) 243 S. W. 1080.

It is next insisted that the trial court erred in submitting defendant in error’s diminished capacity to earn money as an element of recovery, because such issue finds no support in the pleadings.

The petition of defendant in error, after alleging facts showing his injuries and the extent thereof, contains the following allegations: “That by reason of said injuries plaintiff’s capacity to labor and earn money has been completely destroyed up to this time, and plaintiff says will be greatly, if not completely, impaired* and destroyed for all future time. Whereby he has suffered damages in the sum of $15,070.00.”

The allegations of the petition were sufficient to justify the submission of the issue as to defendant in error’s diminished capacity to labor and earn money. Similar allegations were held to be adequate in the case of International & G. N. Ry. Co. v. Cruseturner, 44 Tex. Civ. App. 181, 98 S. W. 423, 425, in which a writ of error was denied by the Supreme Court. The court, in passing upon the sufficiency of such allegations, said: “It was not necessary for appellee to allege in his petition the amounts he could earn before and after he received his injury. It was sufficient to allege the facts showing his injuries, and the extent thereof, and that his earning capacity had been diminished by reason of such injuries, with an allegation of the amount of damages he had sustained by reason of such injuries, and the proof on the trial would furnish the jury with sufficient data upon which to base their verdict.”

To the same effect are the following cases: Texas & P. Ry. Co. v. Crawford, 54 Tex. Civ. App. 196, 117 S. W. 193; Missouri, K. & T. Railway Co. of Texas v. Johnson (Tex. Civ. App.) 37 S. W. 771; Farmers’ & Mechanics’ Nat. Bank v. Marshall (Tex. Civ. App.) 4 S.W. (2d) 165; St. Louis S. W. Railway v. Laws (Tex. Civ. App.) 61 S. W. 498; Memphis Cotton Oil Co. v. Tolbert (Tex. Civ. App.) 171 S. W. 309; Missouri, K. & T. Railway Co. v. Vance (Tex. Civ. App.) 41 S. W. 167.

It is also insisted it was improper to permit defendant in error to testify, over plaintiff in error’s objection, that he had lost not less than $100 per month because of inability, in his injured condition, to wait on the trade at his place of business. The evidence was not objected to as being improper as the opinion and conclusion of the witness. The grounds of the objection were “that said damages were too remote, that the same did not constitute a proper measure of damages and there were no pleadings upon which to base said testimony.”-

It appears that defendant in error was the owner of a drug store which he personally operated. While loss of profits from such a business is not the proper measure of damages in this character of an action, yet defendant in error’s inability to carry on his business in the usual way and consequent loss of profits were circumstances which might properly be considered by the jury in determining whether his capacity to labor and earn money had been lessened.

It has frequently been decided that the loss of profits from a personally operated business may be received in evidence and considered by the jury for the purpose of determining the extent of an injured party’s diminished earning capacity. Texas Electric Ry. Co. v. Worthy (Tex. Civ. App.) 250 S. W. 710; Galveston, H. & S. A. Ry. Co. v. Mallott (Tex. Civ. App.) 6 S.W. (2d) 432; San Antonio Traction Co. v. Crisp (Tex. Civ. App.) 162 S. W. 422; Ridge v. Norfolk, 167 N. C. 510, 83 S. E. 762, L. R. A. 1917E, 215; Baxter v. Philadelphia & Reading Ry. Co., 264 Pa. 467, 107 A. 881, 9 A. L. R. 504, and note.

Finally, it is insisted that the witness Edwards was improperly permitted to testify that some time after the accident he timed a street car entering Bowen street at McKinney avenue until it got in front of defendant in error’s store, and it took about 12 or 14 seconds to run such distance.

Plaintiff! in error argues that the testimony of this witness as to an observation made by him at a different time and under different conditions from those existing at the time of the accident was inadmissible. The principal reason urged against the admissibility of this testimony is that the experiment made by the witness was not under conditions similar to those existing at the time of the accident, the alleged dissimilarity being that the witness timed a street car which did not stop at the street intersection immediately above where the collision occurred, when the evi; dence in this case showed the street car which collided with defendant in error’s automobile stopped to take on passengers at such intersection. An inspection of the bill of exception taken to the admission of this evidence shows no such objection was made in the trial court; the only objection being that the experiment proposed to be shown was not made at the time of the accident, and was “immaterial, irrelevant, and prejudicial.”

While the testimony may have been open to the objection that the experiment testified to by the witness was not made under conditions substantially similar to those existing at the time of the accident, it was not subject to the objections actually made, as experiments of this character, made subsequent to an accident, have often been determined to be material and admissible. Baker, v. Loftin (Tex. Civ. App.) 198 S. W. 159; Ft. Worth & D. C. Railway Co. v. Yantis (Tex. Civ. App.) 185 S. W. 969; Kansas City, M. & O. Railway Co. v. Hall (Tex. Civ. App.) 152 S. W. 445; Freeman v. Moreman (Tex. Civ. App.) 146 S. W. 1045; Houston & T. C. R. Co. v. Ramsey, 43 Tex. Civ. App. 603, 97 S. W. 1067.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals. '


author: CRITZ, J. cuReton, C. J.

text:
    HARVESON et al. v. YOUNGBLOOD.
    No. 1443-5665.
    Commission of Appeals of Texas, Section A.
    May 16, 1931.
    A. C. Heath, of Fort Worth, and George T. Burgess, of Dallas, for plaintiffs in error.
    F. M. Bransford, of Fort Worth, for defendant in error.
   CRITZ, J.

This suit was filed in the district court of Tarrant county, Tex., by T. H. Youngblood against F. V. Sprowls et ah, to establish and foreclose a mechanic’s lien on lot No. 10 in block No. 8, Berkeley addition to the city of Fort Worth, in Tarrant county, Tex., and to recover judgment against Sprowls for $794. Judgment in the district court was for Young-blood, granting him the relief prayed for. This judgment was affirmed by the Court of Civil Appeals. 23 S.W.(2d) 879. The opinion on rehearing does not seem to be published.

It seems from the record that Sprowls made an oral contract with Youngblood to do certain plumbing and install certain plumbing fixtures in a house he (Sprowls) was erecting on the above lot for an agreed price of $794. Youngblood completed the contract according to its terms, and on failure of Sprowls to pay therefor Youngblood took the necessary steps to establish and fix a mechanic’s lien by filing the affidavit required by law with the county clerk of Tarrant county, Tex. Youngblood sues Sprowls as the original owner of the lot and maker of the contract, and alleges that the other defendants are claiming some character of right in the property. He then alleges that any claims held by any of the defendants are inferior to his lien.

It seems from the record that Rogers et al., the then owners, by deed' dated February 8, 1927, conveyed the lot in question to Sprowls for a recited cash consideration of $2,500. Prior thereto Sprowls signed a contract dated September 20, 1926,- with one E. F. Gunn, for the erection of certain improvements on lot No. 11 in block No. 8 of the above addition, and in this contract executed a note and lien on lot 11 to Gunn for $12,000. It seems that the description of the lot was a mistake, and that it was intended to describe lot 10. On September 22,1926, Gunn transferred and.assigned this lien and note to John Quarles Company, a corporation; and same was filed for record on the same day. By deed dated February 10, 1927, and filed for record February 26,1927, Sprowls and wife conveyed lot 10 to Q. A, Harveson for a recited consideration of $7,000 casli and a $6,500 note, secured by a vendor’s lien and deed of trust. The $6,500 note was transferred to the Lincoln National Life Insurance Company.

On February 14, .1927, Harveson and wife, for tbe purpose of extending tbis note, executed tbeir note to tbe life insurance company in the same amount, and at tbe same time executed a deed of trust on lot 10 to secure the payment thereof. Tbis instrument was filed for record February 26, 1927. It is shown that tbe sale from Rogers et al. to Sprowls, tbe sale from Sprowls and wife to Harveson, and tbe loan .by the life insurance company were all closed simultaneously on February 26,1927, and that part of tbe money paid by tbe insurance company was used to pay Rogers et al. tbe $2,500 cash consideration recited in their deed to Sprowls, and that substantially all of tbe balance of tbe $6,500 advanced by tbe insurance company was paid to John Quarles Company on tbe note given by Sprowls to Gunn and transferred by Gunn to Quarles Company. We refer to tbe opinion of the Court of Civil ’Appeals for further statement of tbe case. The pleadings of the several parties are sufficient to raise tbe questions we shall discuss.

By their first assignment of error the plaintiffs in error contend that the Court of Civil Appeals erred in not reversing the judgment of tbe district court, and in not bolding that Harveson and tbe life insurance company were subrogated to tbe rights of tbe holder on a vendor’s lien on account of having paid the consideration for the sale from Rogers et al. to Sprowls, and also in not bolding that they were subrogated to the mechanic’s lien executed to Gunn by Sprowls, which lien was also paid out of tbe proceeds of the insurance company’s loan to Harveson, and in not holding that these liens were at least equal to Youngblood’s lien.

The Court of Civil Appeals declined to pass on tbe above assignment bolding the same not properly presented by tbe brief, and in so holding said:

“As to tbis contention insofar as not disposed of in our original opinion, we have to say that upon a re-examination of' the assignments of error and propositions presented, we find only one assignment of error, to-wit, the 33rd, on page 13 of appellants’ original brief, which in direct terms present tbe contention above indicated. But tbe proposition following thi¡3 assignment, to-wit, the 23rd, to be found on page’19 of appellants’ original brief, complains of an entirely different matter, viz: Tbe introduction of certain testimony complained of as inadmissible, as will be seen by the following quotation of tbe proposition:
“ ‘23rd Proposition. Tbe contract inquired about being in writing, properly executed by the parties, filed for record in the office of the County Clerk of Tarrant County, the testimony of said witness, was incompetent to vary, change or modify tbe terms thereof, in tbe absence of proper pleading of fraud, accident or mistake. (Under 33rd Assignment of Error-, Transcript 49).’ ”
“From tbe statement of tbe assignment and proposition thereunder, it is apparent that tbe proposition is not germane to tbe assignment as required by Rule 30, promulgated for observance by the Courts of Civil Appeals, and under the rules, assignments of error must be followed by propositions, and to entitle a complainant to a review of tbe question, thé proposition must be germane to tbe assignment. See Rule 30, and Randals v. Pecos Valley State Bank [Tex. Civ. App.] 162 S. W. 1190; Columbia [Columbian] Nat. Fire Ins. Co. v. Dixie Co-op. M. O. House [Tex. Com. App.] 276 S. W. 220.”

Tbe plaintiffs in error contend that tbe Court of Civil Appeals erred in holding that tbe only proposition contained in tbe brief based on tbe assignment mentioned is tbe twenty-third proposition, but that tbe twenty-seventh and twenty-eighth propositions, to be found on page 20 of the brief, present the issue. Tbe two propositions are as follows:

27. “Since defendant Lincoln Life Insurance Company and Foster and Son purchased 'said Sprowls note for $6500.00 and tbe vendor’s and deed of trust lien reserved and retained by Sprowls to secure the payment of same for a valuable consideration paid, without notice of plaintiff’s said claim or lien, they were subrogated to all rights, liens and remedies of defendant Sprowls, and were entitled to a judgment in tbeir favor against tbe plaihtiff Youngblood. (Under thirty-ninth Assignment of Error, Tr. page 50).”

28. “Since Harveson purchased said property for valuable consideration paid and Lincoln National Life Insurance Company and Foster ■& Son advanced their money to take up, renew and extend a valid and subsisting prior lien'thereon, without notice of Young-blood’s claim or lien, they were subrogated to such original purchase money and building .liens, and were not affected by any claim or lien of Youngblood, and tbe judgment adverse to them is erroneous. (Under Thirty-ninth Assignment of Error, Tr. page 50.)”

Tbe thirty-ninth assignment of- error reads as follows: “The Court erred in rendering any judgment whatever against these defendants in that tbe defendant Q. A. Harveson in purchasing the property in controversy, and the Lincoln National Life Insurance Company and J. E. Foster and Son in making the loan thereon, took up, renewed and extended prior existing debts and liens thereon intended originally by the parties thereto to have been created and fixed thereon, and were therein and thereby subrogated to the rights, liens, remedies and equities of tire original holders of such liens upon said property.”

We are somewhat doubtful as to whether the above propositions are sufficient to raise the issues here presented. However, we will give the plaintiffs in error the benefit of the doubt and pass on the assignment.

The deed of trust to the insurance company contains the following clauses:

“We hereby request and authorize the Lincoln National Life Insurance Company to advance any money necessary to satisfy the present owner or owners of any prior note or notes where a release or transfer of said note or notes may be executed by the owner or owners thereof, and we hereby agree that the said company, its successor or assigns may be subrogated to all the righs, liens, remedies, equities, superior title, interest in lands and benefits held, owned, possessed and enjoyed at any time by any owner or holder thereof. We further agree if it becomes necessary for said company to advance any sums greater than the amount for which the debt secured hereby is given, said advancement may he for the taking up vendor’s lien, past due taxes, insurance, premiums, liens for labor or material, procuring deeds or any other instruments, to perfect the title in us.as grantors, and this deed of trust shall secure such advancement. ⅜ * *

“The indebtedness hereby secured is in renewal and extension of one note for $6,500.00 dated February 14, 1927, executed by Q. A. Harveson, secured by vendor’s lien retained in deed of even date therewith from F. V. Sprowls and wife, Etta B. Sprowls, to said Q. A. Harveson, and by deed of trust of even date therewith to A. C. Heath, Trustee, and it is expressly understood and agreed that the taking of this deed of trust shall in no way or manner waive, affect or impair the validity of the liens securing same, but any and all liens securing same shall remain in full force and effect until the final payment of the note hereby secured, and the said The Lincoln National Life Insurance Company, or any other owner or holder of the note hereby secured is hereby subrogated to all the liens title, interest and remedies thereunder.”

As above stated, it was conclusively shown that the sale from Rogers et al. to Sprowls, the sale from Sprowls and wife to Harveson, and the loan by the insurance company were all consummated at the same time and as one transaction. It is also shown that the life insurance company in effect paid to Rogers et al. the consideration for the conveyance to Sprowls. At the time Youngblood contracted to do this-work, and most of the time while it was going on, the title to the property stood on the record in the name of Rogers et al., and, so far as the record shows, Sprowls had no .title thereto. It was necessary, in order for Sprowls to get title, that his sale to Harveson be consummated, and in order for this to be done the loan by the life insurance company had to be obtained and closed. In other words, had the life insurance company not advanced the money to pay for the lot, title thereto would have remained in Rogers et al. We think under these circumstances the life insurance company is sub-rogated to the rights and equities of an original vendor, and holds a purchase-money lien.

It is contended by Youngblood that he had no notice of these matters. The record shows that Sprowls had no title to the lot at the time his contract was made and for some time thereafter, but that the title thereto was vested of record in Rogers et al. Youngblood was charged with notice of what the- record showed, and therefore knew that Sprowls had no title of record. This certainly put him on inquiry, and charged him with notice of what the inquiry would have disclosed.

We think that the contentions that the insurance company should be subrogated to the mechanic’s lien given by Sprowls and wife to Gunn should be overruled. This lien covered a different lot from the lot here involved. It is contended that this was a mistake, and that the lien was intended to cover lot 10. As between the parties this may be true, but there is no showing that Youngblood had any notice of such mistake. Also we think it is conclusively shown that this loan from Sprowls to Gunn was spurious and fraudulent and never intended to be binding on any one. Gunn was an employee of Sprowls. He never had any binding contract to furnish any material for improvements on this lot, but was merely an employee of Sprowls working by the day. 'It was understood at the time of making that he was not bound by his contract. The Gunn lien was for $12,000, and Quarles Company had full notice of the above facts. The Quarles Company admitted through its agent that the loan was made to Gunn, who was an employee of Sprowls, for $12,000, when there was no obligation on Gunn’s part to do or to furnish anything, and that the Quarles Company took the transfer to same with full notice thereof.

For the error regarding the $2,500 purchase-money lien we recommend that the judgments of the Court of Civil Appeals and of the district court be both reversed, and the cause remanded to the district court for a new trial.

cuReton, C. J.

Judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.

       Not to be published by order of court.


text:
    ROBERT THOMPSON & CO., Inc., v. CITY OF SAN ANTONIO et al.
    No. 1444-5667.
    Commission of Appeals of Texas, Section A.
    May 16, 1931.
    Douglas & Black, of San Antonio, for plaintiff in error.
    T. D. Cobbs, Jr., City Atty., and Joseph Ryan, former City Atty., both of San Antonio, for defendants in error.
    Bruce W. Teagarden, of San Antonio, amicus curise.
   CRITZ, J.

This suit was filed in the district court of Bexar county, Tex., by Robert Thompson & Co., a corporation, against the city of San Antonio, and certain of its governing officers, for a mandatory injunction to compel the issuance to Thompson & Co. of a permit to construct a drive-in filling station on a certain lot owned by Thompson & Co. in such city. Trial in the district court resulted in a judgment for Thompson1 & Co. ’ This- judgment was reversed and rendered by the Court of Civil Appeals. 23 S.W.(2d) 796. The case is in the Supreme Court on writ of" error granted on application of Thompson & Co.

It is now made to appear that, since this case was decided by the Court ⅜ Civil Appeals, Robert Thompson & Co. has garted with all title to the property in question here; therefore it-can Have no further interest-in this suit except as to the matter of costs. Courts of 'justice will not continue litigation to settle costs when the subject-matter of the litigation has become moot.

We therefore recommend that this ease be dismissed at the cost of the plaintiff in error.

CURETON, C. J.

This cause is dismissed, as recommended by the Commission of Appeals.


author: CALHOUN, J.

text:
    ROGERS v. STATE.
    No. 14182.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    John E. Sentell, of Snyder, for appellant.
    Bloyd W. Davidson,’State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, the unlawful carrying of a pistol; punishment, a fine of $106.

Bill of exception No. 2 relates to the remarks 'of the court to the jury after they had failed td- agree upon a verdict. The bill shows the following: That after -the evidence and argument of counsel had closed, and after the jury had deliberated on its verdict for about three and a half hours, Judge Horace Holley, the judge presiding at said trial, went alone into the jury room while they were considering their verdict and engaged in conversation with members of the jury, and in the hearing-of all of the jury asked, concerning the verdict, how the jury stood, whereupon the foreman replied “Four, to two.” The judge then said, “Two of you are awfully contrary,”' whereupon the foreman said, “One. has. .come over.” The bill-further shows that he talked to them as to whether they wanted'to go'to supper or continue their deliberations without, supper. The bill shows that the jury at the time of this conversation stood four for conviction and two for acquittal, and, in about fifteen or twenty minutes after the above conversation, the jury returned a verdict of guilty against appellant.

The judge trying the case had no right to go into the jury room while they were considering- their verdict and to discuss the same with them. • The statement of the court to the jury that two of them were “awfully contrary” drives us to the conclusion that under the circumstances the ¿rial court’s statement might easily be construed by said two jurors who stood out for acquittal as directed at them and as evidencing a desire on the part of the court that they should agree to what the others had agreed on. Under the circumstances, we believe this was manifestly error, and calls for a reversal. See Womack v. State (Tex. Cr. App.) 35 S.W. (2d) 723; Golden v. State, 89 Tex. Cr. R. 525, 232 S. W. 813; also Lagrone v. State, 84 Tex. Cr. R. 609, 209 S. W. 411.

The judgment is reversed, and cause remanded.

PER CURIAM.

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


author: CHRISTIAN, J.

text:
    SHANNON v. STATE.
    No. 13857.
    Court of Criminal Appeals- of Texas.
    May 6, 1931.
    O. C. McDonald, of Wichita Falls, for appellant.
    Williams & Bell, of Childress, and Dloyd W.' Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for four years.

Appellant and deceased, Troy Taylor, had been friends. On the day of the homicide they had attended a baseball game. Deceased and One Inman made a bet with other parties; appellant holding the stakes. Appellant placed the money in his outside shirt pocket. Inman slipped the money out of appellant’s pocket unknown to appellant. After the game, appellant was called upon for the money, and, believing that deceased had slipped it out of his pocket, he started to feel about deceased’s person. Deceased became angry, and seemed to think that his honor had been questioned. Inman produced the money, and gave deceased -his 'half of the winnings. Appellant got in his car and started to leave. Deceased pursued him around the public square and forced appellant’s car into the' curb.. He threatened to kill appellant. Being in fear of deceased, appellant secured a pistol and bought some shells at a hardware store. He also got one Goodwin to go to the home of deceased to see if he could explain matters and get deceased in a good humor with him. Appellant then went to the city marshal and told -him of the trouble he was having with deceased. He told the marshal that he was going to leave town for a few weeks in order to avoid trouble with deceased. He asked the marshal to go with him to his home in order that he might get his grip and clothes for the journey. The marshal complied with appellant’s request. He did not enter the house, but left as appellant was in the act of unlocking his front door. The killing occurred immediately upon appellant entering his house. Deceased had gone to appellant’s home and awaited appellant’s arrival. The screen was cut and a window had been raised. Appellant was unaware that deceased had secreted himself behind the front door when he entered the house. As appellant entered the house, deceased assaulted him and brutally beat him with the handle of an andiron. In the struggle, deceased tore appellant’s shirt off. The struggle ceased for a moment, and appellant be'gan to wash the blood from his face. Deceased followed him, saying: “I might as well finish you.” The parties exchanged shots, and deceased was killed. Appellant immediately surrendered to the officers. His shirt was torn, and he was bloody. The foregoing facts were testified to by appellant and his witnesses.

The state proved by deceased’s widow that appellant and deceased had been engaged as partners in the whisky business, and that a few nights prior to the homicide a dispute-had arisen over.a settlement in which appellant appeared to have become angered.

The court charged on self-defense.

Appellant objected to the testimony of deceased’s widow to the effect that appellant and deceased were engaged in the whisky business. In connection with her statement that the parties were so engaged, the witness testified to a controversy which had arisen between the parties relative to a division of profits. The opinion is expressed that the testimony was properly received. It was appellant’s theory that deceased had broken into his house and awaited his return in order to kill him. It was the state’s theory, given support by the testimony, that the whisky belonging to appellant and deceased was kept at appellant’s house, and that deceased had a right to be in said house. Moreover, according to the testimony of the witness, deceased appeared to have become angered when the controversy arose over the division of profits. We are unable to say that the testimony did •not fairly tend to raise an inference as to a motive on the part of appellant to kill deceased. Section 1879, Branch’s Annotated Penal Code; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 135.

Appellant’s witness Goodwin gave material testimony in behalf of appellant. In an effort to impeach said witness, the state, over proper objection by appellant, elicited from Mrs. Taylor, wife of deceased, the following testimony: “I was at home just shortly prior to the death of my husband. Vashtine Goodwin come to my home which was just a few minutes before the shooting. I had a conversation with him then and Vashtine Goodwin made the statement to me, ‘Omar, Boyd is going to kill Troy because he does not like a bone in his body, but I can’t make Troy (deceased) understand, and Boyd (defendant) would have killed him downtown this afternoon if it had not been for me.’ ”

The court limited the testimony above quoted to the purpose of impeachment. In the case oi Drake v. State, 29 Tex. App. 265, 15 S. W. 725, 727, a witness for accused was asked upon cross-examination the following question: “On the evening or night of August 27, 1887, the day Guinn was shot by your father, at or near the store of Charles Rast, on Austin street in the city of Waco, Texas, and in the presence of Hugo Robinson, Street Bacon, Bob Fleming and Todd Zeigler, did you not say that you knew your father was going to kill Guinn before you left your father’s house that morning?” The witness answered that he had not made any such statement. Thereafter the state proved by Robinson and other witnesses that the witness did make the statement set forth in the question. In holding the testimony inadmissible, this court, speaking through Judge Willson-, said: - .

“But the opinion or conclusion of the witness Drake, Jr., as to the intention and purpose of the defendant to kill the deceased cannot be brought within this or any other exception to the general rule. He could have detailed and presented to the minds of the' jury the facts upon which his knowledge— or, what is the same thing, his opinion- — as to defendant’s intention and purpose was predicated. He could have- stated the words or acts of the defendant tending to develop such intent and purpose. Hence - we say it was not competent to call for jor prove a statement made by the witness, which, statement was nothing more than his opinion or conclusion. We must and do hold, therefore, that error was committed in allowing the witness Drake, Jr., to be impeached in the manner stated and shown by the defendant’s bill of exception. We regard this error as material and reversible, notwithstanding the instruction of the court to the jury limiting their consideration of the impeaching testimony to the purpose for which it was admitted. It was proved by the positive testimony of four witnesses that the witness Drake, Jr., the son of the defendant, a few hours after the homicide stated that he knew that his father was going to kill the deceased before he did kill him. While it is true that this statement was not criminating evidence against the defendant, and the jury were so instructed by the court, its probable effect upon the minds of the jury was to not only discredit the testimony of the witness Drake, Jr., whose testimony was very material to the defendant, but also to prejudice and influence the minds of the jury upon the main issue. It is not probable that the jury, in the consideration of the main issue, did or could divest their minds of the statement proved by four witnesses to have been made by the witness Dr alie, Jr. If the jury believed that he made such statement, would it be natural for them to obey the' instruction of the court, and restrict their consideration of it to the impeachment of the witness? They might endeavor to do so, and believe they were doing so, and still be involuntarily and unconsciously influenced thereby.”

The holding in Drake’s Case has never been overruled. On the contrary, the doctrine therein announced has been approved in an unbroken line of decisions, among them being the case of Jones v. State, 89 Tex. Cr. R. 577, 232 S. W. 847. See, also, Theriot v. State, 89 Tex. Cr. R. 428, 231 S. W. 777; Wood v. State, 85 Tex. Cr. R. 268, 211 S. W. 782; Finks v. State, 84 Tex. Cr. R. 536, 209 S. W. 154, 155; Henley v. State, 81 Tex. Cr. R. 221, 195 S. W. 197. Giving effect to the announcement of the decisions, we are constrained to hold that reversible error is presented.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: HAWKINS, J.

text:
    TAYLOR v. STATE.
    No. 14353.
    Court of Criminal. Appeals of Texas.
    May 13, 1931.
    D. L. Broadus, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for robbery with firearms, punishment being fifteen years’ confinement in the penitentiary.

The record is before this court without statement of facts or bills of exception. In this condition nothing is presented for review. Our attention is called to the fact that in passing sentence upon appellant the court omitted to give appellant the benefit of the Indeterminate Sentence Law as provided for in article 775, C. C. P. The sentence is reformed to direct appellant’s incarceration in the penitentiary for not less than five nor more than fifteen years.

As thus reformed, the judgment is affirmed.


text:
    HILL v. STATE.
    No. 13138.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    W. R. Parker, Virgil R. Parker, and Clarence Parker, all of Fort Worth, for appellant.
    Stinson, Hair, Brooks & Duke, of Abilene, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, burglary; penalty, confinement in the penitentiary for three years.

This is the second appeal in this ease. The former is reported in 113 Tex. Cr. R. 85, 18 S.W.(2d) 1086.

The state relied wholly upon circumstantial evidence for conviction, there being no testimony in the ease directly showing the number of men participating in the burglary or the identity of any person or persons who took part in or were present at the time of the commission of the offense. The bank in the' town of Peacock was burglarized. A recently discharged pistol was found the next morning. The burglars evidently fled, leaving the safe which had been carried from the bank, an automobile trailer, and the pistol. Among tracks leading to the bank appeared those of a deformed foot. This case is brought before this court for review upon the assignment that the verdict of the jury is not sufficiently supported by the evidence.

The witness T. O. Osborn testified that on Saturday, April 24, 1925, he lived in Claire-mont, Kent county, Tex., and was running a garage on the west side of that town. He testified that 'appellant with a party of men drove up to his garage about 2 or 3 p. m.; that it was on the Saturday before the robbery of the bank early Monday morning on the 26th; that they made some purchases and inquired the way to Benjamin and other points; that he talked with the appellant; that there was a man with a mustache in a Chevrolet car, and appellant was sitting in the car with this man; that there was a trailer attached behind this ear; that there were several other men in the party and there were two or more other cars.

S. A. McCombs, sheriff of Kent county, testified that he saw appellant and a party of men on the Clairemont-Gerard Road on Saturday afternoon before the bank burglary early Monday morning near Ducks creek; that he talked with the appellant, who made some inquiries as to roads. This testimony described practically the same party of men and automobiles as that of the witness Osborn.

J. L. Goggin testified that he saw a party of men near his home as they were leaving-the Rising Star sehoolhouse early Sunday morning; that the party consisted of about five men; and that they had about the same type of automobiles with the trailer attached that the two preceding witnesses had testified about. This witness did not testify that the appellant, Arthur Hill, was among the men seen.

The witness I. D. Rogers testified that he saw a party of men and automobiles with a. trailer attached to one of them on the road near the Rising Star sehoolhouse in Kent county on Sunday, April 25th, before the burglary of the hank early the following Monday morning. He testified that’ they were driving towards the town of Peacock. Witness did not identify the appellant, Arthur Hill, as one of the parties.

Oly Gray testified that on Sunday, the day before the robbery, he saw apparently the same party of men and automobiles at about-2 or 3 o’clock near the crossing of the Peacock-Dayton road over the Brazos river near Peacock. He identified the appellant as one of the parties; that later at about sundown he returned by said place and again • saw this party of men at the same point. This is the last testimony showing the whereabouts of this party of men and automobiles before the burglary occurred.

No witnesses identified other than by a meager description any of the other men in the party of which appellant was claimed to be one. No witness put the appellant in company with anybody in the town o.f Peacock at any time during the burglary or otherwise. No witness put any man of this party in the town of Peacock at any time before, during the burglary, or after it. There is no testimony as to what occurred from the time this party of men were last seen about sundown by witness Oly Gray until the witness R. A. Hays testified that a Chevrolet car passed him at a filling station at the edge of Peacock about 5 o’clock Monday morning going west. He testified that there were two cars in this party, but did not identify anybody by description or otherwise. Several witnesses identified the trailer found at the bank to the best of their knowledge and belief as being the same trailer seen by them . attached to the car in which appellant was seen traveling. Witnesses testified that the morning after the discovery of the burglary that there was blood on the sidewalk and a discharged pistol, also footprints of a man apparently crippled in one foot. It was proven By other witnesses that one Defty Puller, a cripple, some week or ten days later died in a Fort. Worth hospital from a gunshot wound in his foot; also, that appellant knew this man and sometimes associated with him; and that he visited him before his death at the hospital. The man Lefty Fuller was not identified by any one by name or description who saw the party of men at any of the places testified to, either before‘the burglary or in the route of the automobile leaving Peacock early the morning after the burglary. There was also testimony that the pistol found at the bank was a pistol similar to one which Lefty Fuller owned prior to the-burglary. There, was the testimony of the witness Dorothy Star, who testified that Lefty Fuller was brought to her house with a bullet wound in his ankle on Tpesday after the robbery. She also testified that Fuller was a cripple and had been shot in the left foot, and that he had a pistol similar to the one found at the scene of the burglary. Dr. Lit-tlepage testified that he attended Lefty Fuller for a gunshot wound in the ankle about the 28th day of April; that the appellant’s mother called him to come to see Fuller; that Fuller was injured in the left ankle; that said Fuller lingered for about ten days before he died. He also testified that appellant, Arthur Hill, was not at the house when he called to see Fuller, but he saw him at the hospital one time.

We have set out the substance of all the evidence relied upon by the state in this case for a conviction, evidence. The appellant offered no

We quote from Branch’s Ann. P.,0, •of Texas, § 2369, as follows: “To sustain a conviction for burglary it should appear not only that a burglary as charged has been committed but there should also be proof to a greater degree of certainty than a mere probability or a strong suspicion that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction charged against him.” Citing Green v. State (Tex. Cr. App.) 31 S. W. 386; Munson v. State, 34 Tex. Cr. R. 498, 31 S. W. 387; Bowen v. State, 60 Tex. Cr. R. 595, 133 S. W. 256; Lawrence v. State, 66 Tex. Cr. R. 346, 146 S. W. 928. See also Reed v. State, 113 Tex. Cr. R. 412, 22 S.W.(2d) 456.

Conceding that the evidence showed a probability or strong suspicion that the appellant was a participant in the commission of the burglary charged, does the evidence point to the guilt of the appellant with the cogency which the law demands to overcome the presumption of innocence and to exclude every •reasonable hypothesis except the guilt of the •accused? To sustain a conviction, suspicious circumstances short of the measure mentioned are not enough. We do not believe the •evidence in this case measures up to the certainty required in cases dependent wholly upon circumstantial evidence for a conviction, and so believing, the judgment is reversed and- the cause remanded.

PER CURIAM.

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


author: MORROW, P. J. LATTIMORE, X

text:
    Ex parte COLLINS et al.
    No. 14390.
    Court of Criminal Appeals of Texas.
    April 29, 1931.
    Appeal Reinstated May 6, 1931.
    Rehearing Denied May 20, 1931.
    John M. Mathis, Sr., and Horace Soule, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

This is an appeal from an order of the district judge denying bail. As understood from the record as it comes here, the trial was had in vacation. When the trial, is had in vacation, the statute demands that the proceedings bear the certificate of the judge. See article 857, C. C. P.; also Ex parte Young, 87 Tex. Cr. R. .128, 219 S. W. 1102; Ex parte Townsley, 87 Tex. Cr. R. 252, 220 S. W. 1092; Ex parte Lozano, 88 Tex. Cr. R. 112, 225 S. W. 59; Ex parte Francis, 91 Tex. Cr. R. 398, 239 S. W. 957; Ex parte Walker (Tex. Cr. App.) 35 S. W.(2d) 1048. The record fails to show a certification by the trial judge.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The record having been duly certified by the trial judge, the appeal is reinstated.

The appellants were charged by indictment with robbery with firearms. On a habeas corpus hearing they were denied bail. This is an appeal from that judgment.

Proof of the commission of the robbery and the identity of the accused is evident. It is likewise evident that they used firearms as a bludgeon and in connection with their, threats to kill the inmates of the bank in which the robbery took place to compel their submission to the wills of the accused.

No brief is before us, and we are not therefore made aware of the contention of counsel for the appellants. However, we assume tliat reliance is had upon the fact that, because no one was killed in committing the robbery, the infliction of the death penalty is improbable to a degree which would entitle the appellants to bail. There are recent precedents which would rebut such an assumption, notably Allen v. State (Tes. Or. App.) 21 S. W.(2d) 527, in which, under similar circumstances, the death penalty was assessed in the trial court and affirmed by this court.

The judgment denying bail is affirmed.

On Motion for Rehearing.

LATTIMORE, X

The fact that the appellants engaged in the robbery with firearms is entirely undisputed in the record. The conclusion of the trial court, based on the facts heard, is ordinarily upheld, unless we believe his action in the premises an abuse of his discretion. The opinion of Presiding Judge MORROW, as evidenced by what we formerly said in this case, indicated his view that the facts justified the refusal of bail. We have carefully perused the motion and brief of appellants in this case, and are of opinion that the motion for rehearing should be overruled, and it is accordingly so ordered.

The inclusion of Buster Dunn as one of the appellants, in stating the style of the case, was a clerical error.


author: MOJtROW, P. J.

text:
    WILLIAMS v. STATE.
    No. 14352.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    W. J. Durham, of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MOJtROW, P. J.

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

No statement of facts accompanies the record. The indictment is regular and regularly presented.

There was a motion to continue, but there is no bill of exception complaining of the court’s action in refusing the motion. However, in the absence of a statement of facts, the matter cannot be appraised.

In the judgment and sentence, the court failed to take note of the indeterminate sentence law (Code Cr. Proc. 1925, art. 775) under which the judgment should be amended so as to condemn the appellant to confinement in the penitentiary for a period of not less than two nor more than five years. In that particular, the judgment is reformed, and, as reformed, it is affirmed.


text:
    MYERS v. STATE.
    No. 14417.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to commit the offense of robbery; punishment • being assessed at six and a half years’ confinement in the penitentiary.

It is made known to the court by proper affidavit that, pending the appeal, appellant escaped from the jail of Clay county where he was being held until the case was finally disposed of. Under the provisions of article 824, O. C. P., said escape terminates the jurisdiction of this court.

The appeal is ordered dismissed.


text:
    COLBAUGH v. STATE.
    No. 14193.
    Court of Criminal Appeals of Texas.
    May 13, 1931.
    Thos. B. Cooper, of Big'Lake, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the fraudulent disposition of mortgaged property, punishment being two years in the penitentiary.

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

The judgment is affirmed.


text:
    HUDSPETH v. STATE.
    No. 14416.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of property of more than $50 in value; punishment assessed being confinement in the penitentiary for six years.

It is made known to the court by proper affidavit that pending the appeal appellant escaped from the jail of Clay county where he was being held until the ease was finally disposed of. Under the provisions of article 824, C. C. P., said escape terminates the jurisdiction of this court.

The appeal is ordered dismissed.


text:
    MARTIN v. STATE.
    No. 14106.
    Court of Criminal Appeals of Texas.
    May 13, 1931.

      Storey, Deak & Storey, of Vernon, for appellant.
    John Myers, Dist. Atty., of Vernon, and Nat Gentry, Jr., of Tyler, and Lloyd W. Davidson, State’s A tty., of Austin, for tbe State.
   CHRISTIAN, J.

Tbe offense is making a false entry in a book of a state bank; the 'punishment, confinement in tbe penitentiary for two years.

Omitting tbe formal parts, tbe indictment reads as follows: “On or about tbe 7 day of December, A. D. 1929, and anterior to tbe presentment of this indictment, in tbe county and state aforesaid one R. E. Martin was then and there assistant cashier, teller, clerk and agent of a certain state bank, then and there known as Tbe Farmers State Bank of Vernon, Texas, -which said state bank bad theretofore been duly and legally incorporated under and by virtue of tbe laws of tbe State of Texas and was then and there carrying on a banking business in the City of Vernon, in Wiibarger County, Texas, under tbe banking laws of the State of Texas, and he, tbe said R. E. Martin, did then and there in Wilbarger County, Texas, knowingly make and cause to be made in a book then and there belonging to and used by tbe said state bank in tbe transaction of its banking business and then and there known and designated as ‘Teller’s Cash Book’ a certain false entry in words and figures as follows to-wit: ‘47788.62’ tbe said false entry being then and there made and appearing in said book to tbe right of and opposite tbe word ‘Deposits’ and then and there indicating and in effect declaring that the totalTndividual Deposits received by said bank on said date or on some previous date and éarried into tbe business for entry on said date amounted to tbe sum of $47,788.62, whereas, in truth and in fact tbe individual deposits received by said bank on said date or on some previous date and carried into the business for entry on said date did not amount to tbe sum of $47,788.62, which be, • tbe said R. E. Martin then and there well knew, and that said false entry was then and there made by the said R. E. Martin with the intent to injure and defraud the said state bank and with the intent then and there to deceive the Banking Commissioner of the State of Texas and any examiner authorized by law to examine the affairs of said bank.”

Appellant filed a motion to quash the indictment on the ground that it could not be' ascertained therefrom whether the deposits received on December 7, 1929, amounted to $47,788.62, or whether the deposits on December 7,1929, in connection with the deposits received on previous dates, but carried into the business for entry on December 7th, amounted to $47,788.62. It was specifically urged in the motion that the averment “that the individual deposits received by said bank on said date or on some previous date and carried into the business for entry on said date amounted to the sum of $47,788.62,” rendered the indictment vague, indefinite, and uncertain as to the facts relied upon to establish the falsity of the entry. Stated in another way, it is appellant’s contention that the-use of the disjunctive “or” in the connection disclosed by our italicizing of that word left uncertain whether it was intended to charge that the deposits received on December 7th alone were related to the false entry or whether the deposits received on December 7th, in connection with deposits received on previous dates and carried into the business for entry on Deóember 7th, were related to the false entry. We are in doubt as to whether the averment is sufficiently definite. It is the rule that the particular act of which the state complains must be set forth in plain and intelligible words, so that the accused may know what he will be called upon to answer. Branch’s Annotated Texas Penal Code, § 493; Lagrone v. State, 12 Tex. App. 426. In view of the fact that the error hereinafter discussed will necessitate a new indictment if the state desires to further prosecute appellant, we deem it unnecessary to determine whether the motion to quash should have been sustained. We assume the new indictment will be so-drawn as to obviate the criticism heretofore mentioned.

Appellant contends that there is a disagreement between the allegation that the deposits actually received did not amount to $47,788.62 and the proof. The testimony on the part of the state was uncontroverted to-the effect that a correct entry of the amount of the deposits on the date in question would have been $53,746.57. Thus it is seen that the deposits received on Decemljer 7th, together with deposits received on previous dates, but carried into the business for entry on December 7th, exceeded the amount shown by the entry by the approximate sum of $6,-000. It is appellant’s position that the averment that such deposits “did not amount to. the sum of $47,788.62” is tantamount to an allegation that the true deposits were under the sum last mentioned.

When used as a verb, the word “amount” is defined in the Oentury Dictionary and Cyclopedia as follows: “To reach or be equal (to) number, quantity, or value; come (to) as a whole.” Further it is defined: “To ascend; climb; amount.” 'Again: “To rise-in number, quantity, or value, so as to reach or be equal to; come to.” We think it is clear that a positive averment that the deposits clid not amount to $47,78S.62 would be commonly understood to mean that' the amount of such deposits was.less than $47,-788.62. It was incumbent upon the state to •allege the facts relied upon to establish the falsity of the entry. W. C. Jones v. State (Tex. Cr. App.) 38 S.W.(2d) 587, delivered May 6, 1931. The reason for the rule is that the accused is entitled to know wherein and to what extent the entry alleged to have been made by him was false. Crow v. State, 49 Tex. Cr. R. 103, 90 S. W. 650.

Appellant was apprised by the aver-ments in the indictment that the deposits in question were less than the sum indicated by the alleged false entry. The proof on the part of the state showed that such deposits exceeded the amount of the alleged false entry by approximately $6,000. The law demands that the particular offense be- set out with such certainty that a presumptively innocent man, seeking to know what he must meet, may ascertain fully therefrom the matters charged against him. Harden v. State, 85 Tex. Cr. R. 220, 211 S. W. 233, 4 A. L. R. 1308. Appellant, being presumptively innocent, was informed by the indictment that the state would show that the deposits in question were less than $47,7S8.62, and that the entry was false, in that it indicated that the deposits were in an amount in excess of those actually received and carried into the business. Looking to the indictment, a presumptively innocent man would expect the state to prove that some of the deposits carried into the business of the bank on December 7th were fictitious, and that the true deposits were less in amount than $47,788.62. Certainly a presumptively innocent man seeking to know what he had to meet would not have been apprised that the state would prove that the entry was false, in that the deposits received by the bank on the date in question were approximately $6,000 in excess of the amount represented by the entry.

It is fundamental that the evidence should correspond with and support the material allegations. Knight v. State, 71 Tex. Cr. R. 36, 158 S. W. 543; Chaves v. State, 101 Tex. Cr. R. 367, 275 S. W. 1006. It was incumbent upon the state, in order to establish the falsity of the entry as laid, to prove that the true deposits were less than $47,788.62. This the state failed to do. On the contrary, in proving the facts establishing the falsity of the entry, the state showed that the true deposits exceeded the sum of $47,788.62 (the entry alleged to be false), by approximately $6,000. Appellant raised the question under discussion in the trial court.

The judgment is reversed, and (the cause remanded.

PER CURIAM.

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