author: SHORT, P. J. CURETON, C. J.

text:
    AMERICAN SURETY CO. OF NEW YORK v. AXTELL CO.
    No. 1233-5608.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.

      Wilson, Randal & Kilpatrick, of Lubbock, for appellant.
    Schenck & Triplett, of Lubbock, and E. W. Bounds,* of Port Worth, for appellee.
   SHORT, P. J.

The following statement and certified questions are from the Court of Civil Appeals of the Seventh District:

“On August 6,1927, M. C. Nevels entered into a contract with Hockley County to furnish the material and do the work for all necessary plumbing in the courthouse to be thereafter built at Leveiland, the county seat of said county. On August 8, 1927, Nevels executed his bond as such contractor in the usual form, with the appellant surety company as surety.
“The Axtell Company filed this suit, alleging the insolvency of Nevels and sought to recover against appellant surety company a balance of $3,823.17, alleged to be due from Nevels for materials furnished him in complying with his contract with Hockley County.
“The Surety Company answered, alleging that the appellee had failed to give the statutory notice by filing an itemized statement of its account with the County Clerk of Hock-ley County or with the contractor within thirty days after the date of the delivery of the material, as provided by Art. 5160, as amended by the Act of the 40th Legislature ' at its First Called Session in June, 1927. Appellant further alleged that the account had 'been paid by Nevels, the principal obligor, but that the amounts paid by him and directed to be applied to the account in suit had been misapplied by the appellee to other accounts due it from Nevels. It further alleged that it had been released by reason of the fact that appellee had extended the date of payment of the account and included the amount thereof in certain notes payable monthly over a long period of time without the consent of the surety company.
“By supplemental petition the appellee alleged that the amendment to Art. 5160 was in violation of the Constitution of the State of Texas and of the Constitution of the United States, prohibiting the passage of laws which would impair the obligation of a contract and also violated other articles of the Constitution of the United States.
“The case was submitted to the jury upon special issues, in response to which the jury found that Nevels did not pay the Axtell Company in full for fixtures and materials used in building the Hockley County courthouse; that he still owed the Axtell Company $2,735.-76; and that the Axtell Company did not accept Nevels’ notes in settlement, extension or renewal of the indebtedness sued upon in this' action. From a judgment entered in accordance with the verdict, the surety company has appealed.
“By Sec. 10, Art. 1 of the Constitution of the United States, it is declared that no state shall pass any law impairing the obligation of contracts and by Art. 16, Sec. 1, of the Constitution of Texas, it is also provided that no law impairing the obligation of contracts shall be made. Vernon’s Anno. Texas Statutes, Art. 5160 provides that any person contracting with any county for the construction of any public building, shall execute the usual penal bond obligating him to promptly pay all persons supplying him with labor and material in the prosecution of the work. It further provides that any person, company or corporation who has furnished labor or materials used in the construction or repair .of any such building and payment for which has not been made, shall have the right to intervene in any suit on the bond of the contractor to have their rights and claims adjudicated. This original act was passed in 1913. It was amended first in 19-27 by the 40th Legislature (First Called Session, page 114, chapter 39, sec. 1). This amendment became effective ninety days after June 7, 1927, or on September 5, 1927. The amendment added to the original act a provision, in effect, that all claims for material should be itemized and sworn to by the owner or his authorized agent and filed with the contractor or with the county clerk of the county in which said work ½ being prosecuted, within thirty days from the date of the delivery of said material; and any claim filed after said thirty days should not be secured by said bond. No effort was made to comply with this provision of the Act. (The Act was again amended by the 41st Legislature in 1929, but this last amendment has no application to the case before us.)
“The evidence shows that the Axtell Company furnished Nevels no materials until after Sept. 5,1927, when the Amendment became effective.
“Being unable to agree as to the effect of the Act upon the liability of the appellant, we certify to Your Honors the following questions:
“(1) Is the Act as amended applicable to the contract of suretyship?
“(2) Does- it impair the obligations of the appellant and Nevels contract in violation of Art. 1 sec. 16 of the Constitution?
“(3) Does the Act as amended operate retrospectively and require the Axtell Company to file its claim in accordance with its provisions as a condition precedent to its right to recover upon the bond?
“(4) Under the facts and the amended Act, is the appellant Surety Company liable to the Axtell Company?”

The original law on this subject was enacted in 1913, and its provisions remained unchanged until the amendment which became effective September 5, 1927 (Laws 1927, 1st Called Sess., c. 39). This original law was incorporated in Vernon’s Annotated Civil Statutes, volume 15, page 69, as article 5169. The law enacted in 1927 (Vernon’s Ann. Civ. St. art. 5160, note) is substantially in the language of the original law, but it further provides in so far as its provisions are applicable to the questions asked that all claims for material used in the construction of any public building or public work and payment for which has not been made shall be itemized and authenticated by the owner or his authorized agent and filed with the contractor or with the county clerk of the county in which said work is being prosecuted within thirty days from the date of the delivery of the material and that any claim filed after said thirty days shall not be secured by said bond.

Under the facts stated in the certificate, the appellee did not comply with this provision of that law. The language of the original law, as well as that of the amended law, as above stated, required the contractor, before commencing the execution óf a. public work in pursuance of a formal contract with the State or any of its subdivisions, to execute a bond with the additional obligation “that such contractor shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in said contract.” The original law,, as well as the law as amended in 1927, provided further that “any person, company or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene ¿nd be made a party to any action instituted by the state or any municipality on the bond of the contractor, and to have their rights and claims adjudicated in said action and j.udgment rendered thereon.” In construing the original law the adjudicated cases do not contain any suggestion that its provisions had a retrospective effect, nor indeed could there have 6een any basis for such suggestion for the reason that previous to the enactment of the original law Texas had not enacted any law on this subject. Evidently the provisions of the original law were not intended by the Legislature enacting it to have a retrospective effect. When the bond was executed in this case and had been approved by the proper authorities, by virtue of its terms and the law in force at that time, there was imposed upon the surety the obligation upon default of the principal to pay all persons supplying the principal with labor and material in the prosecution of the work provided for in the contract, the value thereof to the extent of any sum not otherwise legally previously appropriated in the discharge of the obligation to the state or subdivision. The identity of the person or persons supplying the labor and material, or either, together with the value of such labor or material so furnished, in the very nature of the situation must await the developments incident to the prosecution of the work. As said by the Supreme Court of the United States in Guaranty Co. v. Pressed Brick Company, 191 U. S. 425, 24 S. Ct. 142, 48 L. Ed. 242, which is quoted with approval in Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621, 622, by the Supreme Court of this state, speaking through Justice Greenwood: “The guarantor is ignorant of the parties with whom his principal may contract, the amount, the nature, and the value 'of the materials required, as well as the time when payment for them will become due.” By the very terms of the contract in this case, as well as the law written into the contract, it must have been contemplated by the surety that its principal in the course .of the discharge of his duties under the contract would be under the necessity to procure the materials required, and to obligate himself to pay for such the reasonable value thereof. The person or corporation from whom such materials were afterwards procured and which were in fact furnished, while unknown at the time the bond was executed, was nevertheless a prospective party to such contract, and became an actual one, when the materials had been furnished by him or it, which were used in the construction of the building and payment for which had not been made by the contractor according to the terms of the agreement under which such material had been supplied and which had been used in the construction of the building. The obligation of a surety under the terms of the contract and the bond is coeval with the undertaking to perform; it originates with the contract itself, and operates anterior to the time of performance. Ogden v. Saunders, 12 Wheat. 213, 349, 6 L. Ed. 606.

So under the facts of- the certificate, the appellee was protected in its rights by the provision of the contract and the bond under the law then in force as measured by the ultimate facts afterwards developed, because the facts show that the appellee did furnish the contractor material which was used in the construction of the building.

This was the effect of the original law, and as the original law is the same as the law afterwards amended in 1927, it follows that the surety became liable to pay the material man the value of the material furnished and used as a matter of law.

The amendment of 1927 did not Impair this right of the appellee, for the reason that the law by virtue of which the appellee was given this right was the same after the enactment of the law of 1927 as it was previous to that date. The amendment in so far as it is applicable to the facts in the certificate merely required, in addition to what the law required as heretofore -discussed, that whenever any person, company, or corporation has furnished materials used in the construction of a public building and payment of which has not been made, he or it shall have the right to call upon the surety for payment, provided that before doing so he or it shall nave filed with the contractor or with the county clerk the claim for the materials so furnished and used, duly itemized and authenticated, within thirty days from the date of the delivery of the material. This amendment in no wise impaired the obligation of the surety to pay the claim of appellee.

The caption to the bill which was made the basis of the amendment shows that it was an act amending article 5160 of the Revised Statutes of 1925, “providing more adequate and better regulations and provisions in connection with bonds where a person or persons, firm or corporation, enter into a formal contract with this State or its counties * * * for the construction of any public building * * ⅜. prescribing what bonds shall be executed in connection therewith and the obligation that they shall contain relative to making payments to all persons supplying labor and materials in connection with the contract; providing more particularly what debts shall bq secured by said bonds and providing for filing claims under oath with the contractor or with the county clerk.” Laws 1927, 1st Called Sess., c. 39.

We have italicized certain words in the above quotation for the purpose of emphasizing the apparent fact that it was the purpose and intention of the Legislature, in amending the original law as it did, to reg-uláte more specifically than the old law had regulated, the procedure to be followed by any person or corporation who had furnished materials used in construction of a public building, under circumstances such as are detailed in tlie certificate. The appellee in this ease had a vested right under the facts to he protected by the provisions of the contract and the bond, the moment the bond was executed and approved, provided, however, that it should be able to show that it had furnished material which had been used in the construction of the building, payment of which had not been made, and that previous to the institution of this suit, it had filed with the contractor or the county clerk its claim for material, duly itemized and authenticated, within thirty days from the date of the delivery thereof. The obligation of a bond is not impaired by a subsequent statute regulating the remedy for its enforcement. 12 Corpus Juris, par. 730; Paschal v. Perez, 7 Tex. 348; Ward v. Hubbard, 62 Tex. 559.

The appellee had no right to demand a recovery for any amount of the surety, until it had furnished the material which had been used in the construction of the building for which payment had not been made by the contractor, and yet it had a vested right the moment the bond had been executed and approved to make this demand of the surety when it could allege and establish the fact that it had complied with the proceedings prescribed by the law. by virtue of which its vested right had originated. The law in existence at the time the material was furnished and used in the construction of the building prescribed that in order to enforce its demand thus originating against the surety, as a prerequisite to making this demand in addition to alleging and proving that it had furnished the material which had been used in the construction of the building for which payment had hot been made, the further allegation and proof that it had previous to making the judicial demand by filing the suit filed with the contractor or with the county clerk its claims for material, duly itemized and authenticated, within thirty days from the date of the delivery thereof. It was incumbent upon the appellee, in order to avail itself of the rights secured to it by the provisions of the law, to allege and prove that ft had done everything which that law required it to do, in the absence of a showing that the law since right of appellee has become vested, had been so changed as to impair this right, or that it had been so changed as to make the enforcement of the right impossible by the use of reasonable diligence. All that the amendment demanded of the appellee in this case, in addition to what the original law required of him, was to file with the contractor or county clerk within thirty days from the delivery of the material an itemized and authenticated statement of its claims. This could have been done without unreasonable effort. This provision of the law is plain, simple, and its purpose obvious.

To arrive at the intention of the Legislature, in enacting the amendment of 1927, to article 5160, which was the original act of the Legislature on this subject, it is the duty, of course, to look primarily to the act itself as an entirety; and to understand the legal effect of the amendment enacted by the Legislature, it must be considered in connection with the original act-, and that which had been done thereunder. A particular section of an act of the Legislature, when enacted, must be construed in view of the existence of the original statute as it stands after the amendment is introduced; it and all sections of the old law must be regarded as a harmonious whole, as connected with and naturally acting upon each other. Shipley v. School District (Tex. Com. App.) 250 S. W. 159, 160; Cole v. State, 106 Tex. 472, 170 S. W. 1036. “Words used in the original act will be presumed to be used in the same sense in the amendment. An amended act is ordinarily to be construed as if the original statute had been repealed, and a new and independent act in the amended form had been adopted in its stead; or, as frequently stated by the courts, so far as regards any action after the adoption of the amendment, as if the statute had been originally enacted in its amended form. The original provisions appearing in the amended act are to be regarded as having been the law .since they were first enacted, and as still speaking from that time; while the new provisions are to be construed ¿s enacted at the time the amendment took effect. It will be presumed that the Legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment.” 36 Oyc. par. 10, p. 1165.

So the amendment of 1927, to the law of 1913, under this rule of construction did make some change in the existing law, and it is the duty of the courts to give some effect to the amendment. The effect, according to the plain import of the language used in this amendment, is merely to say to those furnishing material, under the circumstances stated in the certificate, for the construction of any public building, or the prosecution or completion of any public work,' payment for which had not been made, shall have a right to recover from the contractor, or his sureties, on the bond executed, the value of such unpaid material so furnished, upon the condition only that such claims shall be itemized and authenticated by the oath of the owner or his agent, and filed with the contractor, or with the county clerk of the county in which said work is being prosecuted, within thirty days within the date of said delivery.

The amendment of 1927 to the original law in so far as it is applicable to the facts stated in the certificate does not either enlarge, abridge, or modify the obligation of a contract; it merely modifies the remedy by sped-fying the method by 'which the remedy shall be pursued. It does not make ány substantial interference with the obligation of the contract itself. National Surety Co. v. Architectural Decorating Co., 226 U. S. 283, 33 S. Ct. 17, 20, 57 L. Ed. 221. The distinction between a law which enlarges, abridges, • or modifies the obligation of a contract, and a law which merely modifies the remedy, is discussed by the Supreme Court of the United States in Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439, 23 S. Ct. 234, 47 L. Ed. 249, wherein it is said by that court, speaking through Mr. Justice Harlan: “It is well settled that while, in a general sense, the laws in force at the time a contract is made enter into its obligation, parties have no vested right in the particular remedies or modes of procedure then existing. It is true the legislature may not withdraw all remedies, and thus, in effect, destroy the contract; nor may it impose such new restrictions or conditions as would materially delay or embarrass the enforcement of rights under the contract according to the usual course of justice as established when the contract was made. Neither could be done without impairing the obligation of the contract. But it is equally well settled that the legislature may modify or change existing remedies, or prescribe new modes of procedure, without impairing the obligation of contracts, provided a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.”

While, as we have seen, the amendment of 1927 does not operate retrospectively, there seems to be an idea that nevertheless this amendment could not affect the appellee in this case, upon the basis that it had acquired a vested right, under the facts stated in the certificate, to make the appellant liable for the default of its principal. In order for the amendment to affect appellee in a retrospective manner, it must have had a fixed right, or a definite interest in the bond in question prior to the time the amendment took effect. If it did not have such right or interest, but,, on the contrary, this right or interest in the bond did not vest or accrue until after the amendment took effect, then clearly -the amendment operated prospectively as to it, and is applicable' to its claim. It is the delivery of the material that gives the materialman a right against the bond, and if the material was not delivered until after the amendment covering the right of said materi-alman became effective, then clearly the'ma-terialman’s right is controlled by the amendment. Under the facts stated in the certificate there was no previous contract existing between the appellee and the appellant. There was no contractual obligation on the part of appellant t.o appellee, and the bond was of no benefit to the appellee until it occupied the position of a materialman, and it did not 6c-cupy this position until the time it actually delivered the material. Of course, as was said by Justice Story [2 Gall. 138, Fed. Cas. No. 13,156], quoted with approval in Sherwood v. Fleming, 25 Tex. Supp. 408: “Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed, must be deemed a retrospective law.” This quotation is also cited with approval in Sturges v. Carter, 114 U. S. 511, 5 S. Ct. 1014, 29 L. Ed. 240. The question is discussed also in Hamilton v. Flinn, 21 Tex. 713, wherein the quotation from' Justice Story is again eite'd with approval, and wherein it is stated that: “Laws do- not have a retroactive effect, although they may benefit individuals and the public, unless they prejudice the right of a third person already acquired. The test then, of retroactivity, is not whether there is a hope, expectancy or a mere inchoate right, but whether a vested right ‘to possess certain things according to the laws of the land,’ is impaired or defeated.” In treating the subject of retroactivity or retrospectivity, at 12 C. J. 1084, § 778, it is said: “A retrospective law is one that relates back to, and gives to, a previous transaction some different legal effect from that which it had under the law when it occurred. In this connection the terms ‘retrospective’ and ‘retroactive’ are used interchangeably.” The general law is that statutes operate prospectively, but they may operate retrospectively when it is apparent that such was the intention, provided no impairment of vested rights result. Cox v. Robison, 105 Tex. 426, 150 S. W. 1149. We only -mention this rule to avoid a possible conclusion that we have indicated that no statute could operate retrospectively, since the facts stated in the certificate, under our construction of the legal questions involved, do not embrace this question. According to the facts stated in the certificate at the time'this amendment took effect, the appelleé had furnished no material, and of course the contractor owed it no money, -and consequently it had no right or interest in the bond. The entire matter revolves around the point as to the time when an interest or right became fixed in the bond, and the only method of ascertaining when such interest or right became fixed is by ascertaining the time when the material was delivered.

In concluding its opinion in National Surety Co. v. Architectural Decorating Co., supra, the court uses this language: “In the case now¡ before us, we agree with the Minnesota supreme court in the view that the requirement of a preliminary notice to the obligors as a condition precedent to an action upon the bond affects the remedy, and not the substantive agreement, of the parties. And although the statute as it stood'when the bond was given * * * • must be treated as if written into the contract, it still imposed a condition not upon the obligation, but only upon the remedy for breach of the obligation. Therefore, the subsequent statute * * * effected merely a change in the remedy, without substantial modification of the obligation Of the contract.”

In the case from which the above quotation was taken, the facts are substantially the same as the facts in this case, except that at the time the bond was executed the law provided that “no action shall be maintained on any such bond unless within ninety days after performing the last item of work, or furnishing the last item of skill, tools, machinery, or material, the plaintiff shall serve upon the principal and his sureties a written notice specifying the nature and amount of his claim and the date of furnishing the last item thereof,” while at the time the suit was filed on the claim this law was amended so as to require the notice of claim to be given ninety days “after the completion of the contract and acceptance of the building by the proper public authorities” instead of within ninety days “after performing the last item of work or furnishing the last item of skill, tools, machinery, or material.” This change in the law went into effect before the company had furnished the materials upon which the action was based and at the time the action was commenced the person 'furnishing the material had not given notice in time to comply with the provisions of the law as it existed at the time the bond was executed, but did give su(& notice in time to comply with the amended law. The Supreme Court of the United States held that the change in the law as above indicated did not impair the obligation of the contract, but only modified the remedy by changing the method by which the right could ■be enforced. Cooley’s Const. Lim., pars. 293, 374; Farmers’ Life Insurance Co. v. Woltets (Tex. Com. App.) 10 S.W.(2d) 698; Frank v. State Bank & Trust Co. (Tex. Com. App.) 10 S.W.(2d) 704.

We therefore recommend that question No. 1 be answered in the affirmative; that questions Nos. 2 and 4 be answered in the negative; and that question No. 3 be answered that the act as amended does not operate retrospectively, but that it did require appellee to file its claim in accordance with its provisions as a condition precedent to its right to recover upon the bond.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


source: Caselaw Access Project

author: SHORT, P. J. OURETON, C. J.

license: Public Domain

text:
    ÆTNA CASUALTY & SURETY CO. v. WOODWARD et al.
    No. 1271-5847.
    Commission of Appeals of Texas, Section B.
    March 18, 1931.

      Harry P. Lawtter and H. B. Sanders, both of Dallas, for plaintiff in error.
    Tomas G. Pollard, of Tyler, Bishop & Holland, Wynne & Wynne and Justice & Sigler, all of Athens, and Leffingwell & Dixon and M. S. Church, all of Dallas, for defendants in error.
   SHORT, P. J.

On August 1, 1927, C. W. McBride entered into a formal contract with the Malakoff independent school district, having thereafter on August 6, 1927, executed a bond with the plaintiff in error as its surety, as provided by article 5160, R, S. 1925, for the construction of a school building to be used by said district as such. McBride proceeded with tte construction of this building, under the supervision of W. D. Puterbaugh, who was tte authorized supervisor of construction of said building, and also a member of the school board. However, before the building was completed McBride abandoned the contract. Among other terms of the contract, McBride agreed to pay for all the material furnished and for all the labor performed in the construction of said building, according to the specifications. He failed to do this.

This suit was commenced by the defendants in error I. D. and O. T. Woodward in the district court of Henderson county against O. W. McBride, Malakoff independent school district of Malakoff, of Henderson county, the Aetna Casualty & Surety Company (McBride’s surety on his bond), the First National Bank of Malakoff, and all in-terveners who might file petitions of intervention, several of which pleas of intervention were in fact filed. The case was tried before a jury, who answered the only issue submitted, to the effect that the supervisor did not pay to the contractor more than 80 per cent, of tte amount of labor and materials which were used by him in the construction of the school building in question. Among other provisions in the contract was one prohibiting the contractor from being paid more than 80 per cent, of the amount of labor and material, the purpose being to have the school district retain in its hands 20 per cent, of the amount of labor and materials, until after the contractor had completed the building,- according to the specifications. The plaintiff in error has attacked this finding of fact as being contrary to all tte evidence in tte case. However, the court rendered a judgment for the original plaintiffs, I. D. and O. T. Woodward, for the sum oi $580.50 against tte defendant O. W. McBride, and his surety, the plaintiff in error, as well as in favor of certain interveners for various amounts, except the Dallas Plumbing Company, which was held to be entitled, in satisfaction of its judgment, amounting to $5,563.25, out of certain moneys in the registry of the court, placed by the Malakoff ■independent school district, as funds which McBride would have been entitled to had he complied with tte terms of his contract, and further directing that any balance of said funds should be prorated among tte other persons recovering judgments in proportion to their respective recoveries, and these payments are ordered to be credited upon the judgments against McBride and tte plaintiff in error, his surety. The plaintiff in error, only, prosecuted an appeal to the Court of Civil Appeals at Waco, where the judgment of the district court was affirmed. 31 S.W.<2d) 679.

I. Zi. and O. T. Woodward, the original plaintiffs, performed certain work in connection with tte construction of said building under a contract by C. W. McBride, the contractor, the amount and value of which is not questioned, nor is their right to recover questioned by the plaintiff in error, whp admits the justice of this recovery by this defendant in error, under the pleadings and proof. This pleading of I. L. and O. T. Woodward is to the effect that the date of tte contract was August 1, 1927, and that of the bond was August 5, 1927, and that between said dates, and the 27th of December, 1927, these plaintiffs, under a contract with McBride, performed certain labor and furnished certain material of the value of $1,730.50, for which McBride had paid all except $580.-50, which balance these original plaintiffs claimed the right to' recover against McBride and his surety, for the reasons above indicated, and for the additional reason, as alleged, that they, within thirty days from tte day their claim accrued and became payable, had filed with McBride and with the Mala-koff independent school district, each a sworn statement of the indebtedness due them for labor performed and material furnished. This particular allegation, as well as the other material ones, was supported by uncontradicted testimony. So the plaintiff in error here, while admitting the right of the original plaintiffs to a recovery of the sum claimed, because of the allegations in their petition and tte proof made in support thereof, contend that none of the claims of any of the interveners against McBride were for labor performed, or for material furnished in the construction of the building, ace chargeable against it as McBride’s surety for the reason that there was neither pleading nor proof, such as was made by the original plaintiffs, that any of said interveners liad, within thirty days from the date that their respective claims had accrued and become payable, filed with the contractor, or with the county clerk of Henderson county, a sworn itemized statement of the indebtedness due them either for labor performed or for materials furnished in behalf of McBride, in the furtherance of the completion of the contract, which McBride had entered into on the 1st day of August, 1927, since it appeared, from the pleadings and proof, that all of said labor performed and all of said materials furnished had been performed for or furnished to McBride after the 5th day of September, 1927, on which date article 5160, as amended by the Acts of the Legislature of 1927, 1st Called Sess., c. 39 (Yernon’s Ann. Civ. St. art. 5160, note), had become effective, requiring the filing of said account either with the contractor or with the county clerk, within thirty days after the claim had accrued, which amendment, to article 5160, provided that in order that one performing labor or furnishing material, under the circumstances shown by the facts in this case, which had remained unpaid by the contractor, in order to hold the surety of the contractor liable for its failure to pay such amounts, must, within thirty days from the accrual of the claim, file a sworn statement with the contractor, or the county clerk, duly itemized. An examination of .the record in this case shows that the Malakoff independent school district had. obligated itself to pay McBride 80 per cent, of the amount due for labor and 80 per cent, of the amount due for material, every two weeks. The amendment to article 5160, R. S. 1925, requires that all claims for labor shall be filed within thirty days from the date that said claim accrued, and further provides that all claims for material shall be so filed within thirty days from the date of the delivery of said material. Since the contract provides that payment shall be made for this labor, and for .this material every two weeks, it is only necessary to show when each particular labor was performed to determine when the claims for such labor accrued, respectively, this being done by adding two weeks to the respective dates when the labor was done. This is true for the reason that until the amendment to article 5160 of R. S. 1925 became effective, which was September 5, 1927, there was no law requiring any laborer or materialman, doing the things specified in article 5160, to do anything as a prerequisite to his right to make the surety of the contractor responsible for his failure, as a contractor, to make payment according to contract, either for the labor done or the material furnished. An inspection of the record in this case shows that the following named interveners, in whose favor judgment was rendered against the plaintiff in error, did not comply with the amendment to article 5160, there being no allegation in any plea of intervention that they did, and the record further shows that no labor was done, and no material furnished the contractor until after September, 5, 1927, to wit': Intervener Jet Crawford, who recovered a judgment for $216 for labor; intervener Dallas Plumbing Company, who claimed to have performed labor and delivered material from September 19, 1927, to February 23,1928, who recovered a judgment for $5,563.25; inter-vener Malakoff Fuel Company, who recovered a judgment for . labor performed and material delivered, beginning September 17, 1927, up to and including February 2, 1928, for the sum of $384.82.

The court rendered judgment in favor of the following parties for the following sums: I. L. and O'. T. Woodward, $580.50; Central Texas Iron Works, $462.69; Texas Clay Products Company, $434.15; Malakoff Fuel Company, $384.82; Jet Crawford, $216.00; George Oriddle, $48.65; Hawn Lumber Company, $2,734.73; Dallas Plumbing Company, $5,563.25; against the defendants C. W. McBride and Mstna Surety Company, jointly and severally; that Malakoff independent school district should recover nothing against any party except cost and that the First National Bank of Malakoff recover nothing against anybody except cost; that out of the fund of money tendered into court by the Malakoff independent school district, through the First National Bank of Malakoff, a banking corporation, that the sum of $5,563.25, should be paid to the Dallas Plumbing Company, and the balance of said sum be prorated among the other interveners, to wit.:■Central Texas Iron Works, Texas Clay Products Company, Malakoff Fuel Company, Jet Crawford, George Oriddle, and I-Iawn Lumber Company, in proportion to their respective sums decreed to them; that the 2Etna Casualty & Surety Company should have judgment against C. W. McBride and his in-demnifier Dodd, jointly and severally, for the total amount herein decreed against it, in favor of the respective parties named; and that the RStna Casualty & Surety Company should recover nothing against the Malakoff independent school district. That the Dallas Plumbing Company should recover nothing against W. D. Puterbaugh and Roy I. Wier, and the Malakoff independent school district, and the First National Bank of Malakoff, and that the prior claim or lien asserted by I. L. and O. T. Woodward should be denied. Interest was also allowed at the legal rate on these sums.

However, an inspection of the record also shows that the following interveners delivered material to the contractor or performed labor for him on divers and sundry dates, previous to September 5, 1927, as well as previous to the date following September 5, 1927, when, under the contract, their claims against the contractor matured and were payable, the exact amount of which, and their several rights, under the facts which may be established by another trial, cannot be ascertained ■ by us: Central Texas Iron Works, for material, $462.69 ; Texas Olay Products Company, for material, $434.15; 1-Iawn Lumber Company, for material, $2,734.73. Neither of these interveners either pleaded or proved compliance with the amendment to article 5160, which became effective September 5, 1927. However, previous to ’September 5, 1927, the law did not compel interveners to do anything towards giving any one any notice of the amount of the existence and amount of their several claims in order to make surety of the contractor liable for their unpaid claims.

Under several assignments of error the plaintiff in error' submits several propositions, the substance of all of which is to the effect that intervening creditors, either laborers or materialmen, are entitled to recover from the surety only by virtue of statutory provisions, and who plead and prove compliance with the statutory requirements as to filing sworn itemized notice of unpaid claims with the contractor or the county clerk within thirty days after the delivery of the material or the accrual of the claims for labor, as provided by article 5160, R. S. 1925, as amended by the Acts of the 40th Legislature, First Called Session, p, 114, which became effective on September 5, 1927. We sustain each and all of these assignments, being of the opinion that the proposition above stated is a correct one.

'■ Having discussed this particular question, in answer to certain certified questions presented to the Supreme Court by the Court of Civil Appeals of the Seventh District, in American Surety Company of New York v. Axtell Company, wherein the Supreme Court, in adopting our opinion, in answer to these questions, has given its approval to the views therein expressed on this question, we deem unnecessary a restatement of them here, preferring to adopt our opinion in that case as our view of this question in this case. 36 S. W.(2d) 715.

Such being our construction of article 5160, as amended by the Acts of 1927, and it appearing from the record that • the intervener Dallas Plumbing Company, who claimed to have performed labor and delivered material to the contractor from September 22, 1928, and the intervener Jialakoff Fuel Company, who claimed to have performed labor and delivered material to the contractor beginning September 17, 1927, up to and including February 22, 1928, and the intervener Jet Crawford, who performed labor for the contractor more than thirty days after the first pay day, when he began to perform said labor for the contractor, none of whom pleaded or proved that, they filed an itemized, authenticated statement of their account, either with the contractor of the county clerk of Henderson county, as provided by the amendment of the Acts of 1927, all of whom recovered judgments against the plaintiff in error for the sums claimed, besides interest accrued, in the district court, which were affirmed by the judgment of the Court of Civil Appeals, it is our opinion that the judgments in favor of these parties should be reversed. The record failing to show that, as to the interveners Central Texas Iron Works, Texas Clay Products Company, and 1-Iawn Lumber Company, facts which will enable us to determine the exact amount for which the plaintiff in error is due each of said interveners, but inasmuch as the record does show that each of these interveners are entitled to recover some amount against the plaintiff in error, it is our opinion that the judgments rendered against the plaintiff in error in favor of these inter-veners should be reversed, and as to them the cause should be remanded to enable the trial court to determine the exact amount due each of these interveners, for which the plaintiff in error is liable, under the law, as declared by us in American Surety Company of New York v. Axtell Company. It will be noted from an inspection of article 5169, as amended by the Acts of 1927, that one suing for labor performed for a contractor, under circumstances of this case is required to give the notice, mentioned in that ’ amendment, of the claim within thirty days from the date ■the claim accrued. Under the circumstances of this case, the claim for labor would not accrue until two weeks after the labor had been performed, by virtue of the terms of the contract. Since Malakoff independent school district was only required to pay the contractor for labor, as well as for material, every two weeks after the labor had been performed, and the material had been delivered, it further appears, from the language used in this amendment, that the notice for all claims for material delivered to a contractor must be given within thirty days from the date of the delivering of the material, and not from the accrual of the claim. So in determining the rights of those interveners who furnished material, under our construction of the law, it will be necessary for the trial court to determine the exact date each item of material was delivered, and allow the in-terveners, delivering such material, to recover against the plaintiff in error judgment for the value of all material delivered previous to the 5th day of September, 1927, since the date of the delivery of the material would determine the rights of the parties under the law, as it existed, by virtue of the amendment of 1927, and not the date of the accrual of the claim, as in the case where the claim is for labor performed. This distinction is due to the difference in the language used in reference to notice where the claim, is for labor, and where it is for material, and also by yirtue of the terms of this particular contract.

It is true that the record shows that the Dallas Plumbing Company, which was allowed to appropriate substantially all of the money which had been retained by the school district, as the 20 per cent, of the price to be paid the contractor when the building was completed, under and by virtue of an assignment made by the contractor to it of this fund. The plaintiff in error assigned this action of' the trial court as error in the Court of Civil Appeals, which assignment was overruled. This action of the Court of Civil Appeals has been assigned as error in the application for the writ of error. In support of this assignment the plaintiff in error submits this proposition : “A surety executing a bond for the faithful performance of the contract is as-signee, as a matter of law, of all retained and unpaid funds and no previous contracts or assignments between any other parties can deprive the surety of such funds for the purpose of liquidating claims of unpaid credit, with a proportionate unpaid share to each.” We sustain this proposition. Prairie Bank v. U. S., 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412; Union Indemnity Company v. Benton County Lumber Company, 179 Ark. 752, 18 S.W.(2d) 327. It also appears that the materials furnished to and labor performed for the contractor by the Dallas Plumbing Company were charged from September 19, 1927, to February 16, 1928, while the records show, without dispute, that the contractor abandoned the contract on December 27, 1927. It is also true, as shown by the record, that the Dallas Plumbing Company, on December 27, 1927, furnished the contractor an itemized, sworn statement of its claim; but there is no allegation in the plea' of intervention, by the Dallas Plumbing Company, that it had given the notice required by the amendment of 1927. There being no allegation, this proof, even if it was material to any jssue in the case, would not serve to aid this intervenor. This is specially true since the record shows that the plaintiff in error specially excepted to the sufficiency of the plea of intervention, because of the want of this allegation, which exception was, by the trial court, overruled, to which the plaintiff in error reserved an exception.

The record further shows that the original contract price was $35,400.08, 20 per cent, of which is $7,0S0.01, and that the contractor was paid $28,320.97. The record further shows that the school district, after the contractor abandoned the work, spent in completing the building the sum of $1,378.93, which, deducted from the $7,080.01, left $5,701.08, in the hands of the school district, which • belonged to the contractor, subject to the payment of the unpaid claims for material and labor. While these claims, in the aggregate, apparently exceed the amount left of the 20 per cent, retainage in the hands of the school district after it had completed the building, yet the proportionate part, to which each claimant is entitled, is not shown by sufficient facts in the record to enable us to determine their respective shares thereof. Moreover, the judgment rendered in favor of the plaintiff in error against the contractor and his indemnifier, by the district court, and affirmed by the Court of Civil Appeals, may undergo, upon another trial, a material change, dependent upon the facts ascertained upon another trial, all of which, in our opinion, under the construction we have given to article 5160, as amended by the Acts of 1927, requires a reversal of the judgments of both courts, as to all the parties, except the judgment rendered in favor of the original plaintiffs, I. L. and O. T. Woodward, and also the judgment rendered in favor of the Malakoff independent school district, and the First National Bank of Malakoff, W. A. Ruterbaugh, and Roy I. Wier, the judgment in favor of the parties named last being merely one for cost.

We therefore .recommend that the judgments of the Court of Civil Appeals and of the district court, in favor of the Malakoff independent school district and the First National Bank of Malakoff, Tex., W. D. Puter-baugh, and Roy I. Wier, be affirmed. As to the remaining parties, defendants and inter-veners, we recommend that the judgments of the Court of Civil Appeals and of the district court be reversed and the cause be remanded, for -further proceedings not inconsistent with this opinion. We further recommend that I. L. and O. T. Woodward recover all cost against the plaintiff in error incurred in the prosecution of their claim against said plaintiff in error, and that the plaintiff in error recover of all the other parties, except the First National Bank of Malakoff and the Malakoff independent school district, W. D. Ruterbaugh, Roy I. Wier, and I. L. and O. T. Woodward, all costs incurred in the Supreme Court, and that the costs incurred in the trial court and Court of Civil Appeals be apportioned and adjudicated by-the district court upon another trial, according as the law and facts shall indicate.

OURETON, C. J.

Judgments of the district court and Court of Civil Appeals both in part reversed and remanded, and in part affirmed, and costs taxed, all as recommended by the Commission of Appeals.

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


author: DATTIMORE, J. MORROW, P. J.

text:
    KUYKENDALL v. STATE.
    No. 12987.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1930.
    Rehearing Denied Jan. 28, 1931.
    Second Rehearing Denied April 8, 1931.
    A. G. Mueller, of Ulano, and G. A. Walters, of San Saba, for appellant.
    J. E. Abernathy, Co. Atty., and W. O. Dowdy, Asst. Co. Atty., both of McKinney, and A. A. Dawson, State’s Atty., of Canton, for the State.
   DATTIMORE, J.

Conviction for cattle theft; punishment, two years in the penitentiary.

Appellant sold some beef carcasses about sunup March 6th to Watson. Facts were developed upon investigation of how-he came by these beeves which seem to the writer to furnish enough support to the inference that the cattle were stolen, to justify the jury in concluding that they were. I will recite some of the facts. Appellant brought these carcasses to San Saba about sunup on the morning of the 6th. He.said he bought them from Don Gray, and that the animals were in Gray’s mark and brand, and tha,t they were .butchered at Gray’s ranch. He also stated that he would show the officers the hides off said animals. He brought the beef to town in a Ford car to which was attached a trailer. The officers went with him back to Gray’s ranch. Here they found Gray 'and one Pat Chestnut. When Gray was asked about the hides referred to, he said he had just sold them to a man who lived up somewhere about Eden, and said the man had gone off down a road which Gray indicated. The testimony shows that the night before had been rainy, and' that it was drizzling that morning. . The officers took the road indicated by Gray and followed it several miles, but saw no fresh car tracks, and were informed at the first house to which they came that no such car had passed. They returned to Gray"s, and after some conversation went on back to San Saba. Pat Chestnut testified that after the officers left going up the road indicated by Gray, as taken by the hide buyer, Gray said to appellant, “I have thrown them off the track,” or have “fooled them.” That appellant replied to Gray: “Don, we are up against it, and I think we had better kill seven more, and get those hides and turn them over to Mr. Urquhart.” (Urquhart was the sheriff.) To this Gray replied that he would not kill any more; that cattle were worth $65 a head. Appellant said that they had better kill seven head of Gray’s1 cattle with Gray’s mark and brand on them. After this conversation, Chestnut said he left and went out through Gray’s pasture, 'and presently observed under a big tree, blood, offal, etc., indicating that animals had been freshly or recently butchered at this place. He here observed the tracks of a car having a trailer. He followed these tracks down a pasture road to where he ran across a fire still burning in which were heads and hides of cattle. He said the car and trailer tracks went further on, and he followed them to where another fire was still burning and in which were articles similar to those in the first fire. He said the hides looked as though they had been rolled up and pitched in the fire. The fires were still burning when he went by the places shortly after noon of the 6th. Testimony was introduced showing that the grand jury had been unable to ascertain the name of the owner of the seven animals referred to. It was in testimony that Gray told the officers when they reached his ranch that the animals killed by him and appellant were his, and that he had sold them to appellant. Appellant testified in line with this that he had been dipping cattle for Gray, and had bought a remnant and that they butchered them the afternoon and evening of the 5th of March. He admitted that they butchered them at a tree some hundreds of yards north of the ranch house. He said he did not take the hides to town with him when he carried the beef, partly because he could get a better price for the hides at Llano than he could at San Saba, and that he expected to have the hides taken to Llano. He also admitted that the hides of the animals were left at the place where they were butchered, and that he supposed they were there when the officers went out to Gray’s making their investigation. He said he knew they suspected him of stealing the cattle, but admitted that he made no offer to take them out and show them the heads for the purpose of satisfying them he had bought animals in Gray’s mark and brand. Appellant admitted that he had •been convicted for cattle theft before, and for other violations of the law.

It occurs to the writer that this evidence is sufficient to justify the jury in believing that the animals in question were stolen either by appellant alone, or by appellant acting with Gray. In such case we do not think it necessary to show that any particular animals had been at any time seen or known as estrays or running on any of the ranges in San Saba county for a sufficient length of time to establish that they belonged to unknown owners.

The state introduced Mr. Lang, who testified that he had lost seven head of cattle at or about the time of this alleged theft. We do not think this testimony was admissible. The fact, it is said in the Dawson Case (Tex. Cr. App.) 61 S. W. 489, of the admission of such testimony would be a sufficient basis for the reversal of the judgment, the opinion stating that if appellant stole the cattle of Moore, one of the witnesses who testified to the recent loss of cattle, he should have been indicted for the theft of Moore’s cattle; if he stole cattle belonging to the Matador Cattle Company, also shown to have recently lost cattle, he should have been indicted for the theft of cattle from the Matador Cattle Company, but having been indicted for the theft of cattle from an unknown owner, the proof mentioned should not have been made. We find in this record no objection made, however, to the testimony of Mr. Lang. Tfcie matter is discussed here •largely -because of the qualification plaeéd by the learned trial judge upon a bill of exceptions complaining of the refusal of a charge .relative to the Lang cattle, in which qualification the judge seems to be under the impression that it is proper to prove the loss of other cattle belonging to known owners at or about the time of the alleged theft.

We do not believe that the special instruction asked regarding the loss of the Lang cattle was a correct announcement of the law. Same merely sought to have the jury told that they would not be authorized to convict the defendant because Lang lost cattle, and that such evidence was admitted merely as “a circumstance of said occurrence.”

There are a number of bills of exception, each of which has been considered, but none of which are believed to present reversible error.

The judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

Appellant relies on Melton v. State (Tex. Cr. App.) 56 S. W. 67, Dawson v. State (Tex. Cr. App.) 61 S. W. 489, and Clements v. State, 43 Tex. Cr. R. 400, 66 S. W. 301, 303, as holding that to sustain a conviction for theft of property from an unknown owner, there must be proof in the record showing that said property had the status of belonging to some unknown owner prior to the time same was taken by or found in possession of the accused. We briefly analyze said cases:

In the Clements Case, supra, the three calves alleged to have been stolen were brought by the accused to Brigman’s pasture. Not a particle of testimony in the record supports the hypothesis that they were es-trays or had ever been seen by any witness in the county or neighborhood of Brigman’s pasture before they appeared in appellant’s possession. To this extent the analogy between the facts in the Clements Case and those in the instant case is exact. Clements made statements as to who he got said calves from, which statements were' shown by the state to be false. In this, also, that case is like the instant case. The Clements Case upon its facts, its reasoning, and,its conclusions, is authority against the appellant and not in his favor. The judgment in that case Was affirmed upon proof that the name of the owner was unknown to the grand jury and at the time of trial, and upon proof further that the explanation of Clements and his claim of purchase were shown to be false. In the opinion in that case-Judge Henderson states that upon authority of the Melton Case, supra, and the Dawson Case, supra, it was urged in behalf of the defense that inasmuch as there was no pToof made that cattle were shown to be in that section'belonging to an unknown owner, and no cattle were missed which belonged to an unknown- owner, the testimony was insufficient. The conclusion of Judge Henderson was adverse to this contention. He distinguishes the case about which he was writing from each of those referred to. We think the Melton Case, supra, is easily different from both the Clements Case and the instant case. The Melton Case was reversed for the refusal of a charge that if at the time the accused killed the alleged stolen animal he believed it belonged to Youngblood, he should be acquitted. The proof in that case showed that Mr. Young-blood had authorized Melton to kill animals on tlie range belonging- to him, and appellant testified that when he killed the alleged stolen animal he thought he was killing one of Youngblood’s cattle. However, there are some expressions in the opinion in the Melton Case referring to the failure of the state to “identify” the particular animal as belonging to an unknown owner, which we- feel sure, from what was said by the same eminent judge in his opinion in the Clements Case written later, -were intended only - to mean that the state had failed to prove that this particular animal belonged to an unknown owner.

Judge Henderson, in the Clements Case, distinguishes the Dawson Case, supra, on the ground that same went off on the proposition that when the state alleged the ownership of the animal to be unknown, it was incumbent on the state to prove such allegation; also, that when there was no evidence to show that the animals found in possession of the accused belonged to an unknown owner, the conviction could not stand. In his opinion on rehearing in the Clements Case, supra, Judge Henderson recognized that there were some things said in the Dawson Case which were out of line, and he went further and said that if there be in the Dawson Case, supra, any expressions indicating as the view of this court that the alleged stolen animal must, prior to the theft, be known-as the property of some unknown owner, and identified as such, such expressions are not the law, and any of same which do not harmonize with the holding in the Clements Case would be overruled. The final announcement in said opinion -on rehearing in the Clements Case is as follows:

“Now, whether the animal -was known in the community at the time as an estray or an animal belonging to some unknown owner, and this was the animal alleged to have been stolen, as was the condition in Melton’s Case (Tex. Cr. App.) 56 S. W. 67, or whether the animal shown to have been stolen was not previously known in the community, or on some account'the state was not able to identify the animal as the property of any person, would make no difference. In either event, the state not being able to identify the property as belonging to a known owner, it would be the property of an unknown owner, and would be covered by our statute authorizing the allegation that it was the property -of an unknown owner.”

It follows that we do not agree with the appellant’s contention that this case must be reversed because of what was said in the cases just discussed.

When the indictment charges the theft of -property of an unknown owner, the question of variance arises if it be shown on the trial that the averment was made by the grand jury arbitrarily or without sufficient diligence to ascertain the name of the owner. If it appear from the evidence adduced upon the trial that in making the averment, the grand jury could, by reasonable diligence, have ascertained the name of the owner of the property, a variance developed. A variance will not result from the averment, however, when made after proper inquiry though on the trial the proof may show the name of the owner of the property. Jorasco v. State, 6 Tex. App. 238; Jorasco v. State, 8 Tex. App. 540; Hellums v. State, 55 Tex. Cr. R. 356, 116 S. W. 590. In a trial for theft under an indictment charging that the owner of the alleged stolen property was unknown, it is deemed necessary to introduce such evidence as will justify the jury in concluding that in the respect mentioned the indictment speaks the truth as to the inability of the grand jury to know the owner and that in the county such cattle were stolen by the accused. See Wharton’s Or. Ev. (10th Ed.) vol. 1, § 97; Underhill’s Cr. Ev. (3d Ed.) § 463; Jorasco v. State, supra. Under such an indictment proof of the guilt of the accused and the identity of the cattle may be made by circumstances; that is, by infer--enees from proven facts. The acts, conduct, and declarations of the accused are competent evidence bearing upon the issues. See Wharton’s Cr. Ev. vol. 1, § 748, p. 1492. In § 749, of the same text, it is said: ■

“The holding back of evidence may be used as a presumption of fact against the .party who holds 'back such evidence in all cases in which it could be produced.
“While the accused in a criminal case may j;ely upon the presump-tion of innocence, and any failure on' his part to offer evidence is not an admission of guilt, or even a presumption against him, still; where it appears that he has within his power evidence which is not available to the State, which would show the actual facts, his suppression of such evidence warrants the jury in drawing an inference that its production would be unfavorable to him.’?

Erom Burrill on Circumstantial Evidence, p. 451, the following quotation is taken:

“There is no dtoubt that the mere fact of possession of stolen property, which has been satisfactorily identified, if both recent ’ and exclusive, is, in itself, sufficient to raise a presumption strong enough, if unrebutted, to warrant the conviction of the possessor. But such presumption may be materially strengthened by accompanying circumstances, the most prominent of which will now be considered.
“1. Proximity of the person of the accused to the place frtom which the property was stolen, about the time of the larceny, is a strong corroborative circumstance of the concommitant-class.
“2. The concealment of the stolen property is a strong circumstance against the possessor. Under this head may be classed acts intended to destroy the identity of the property ; such as the erasure of marks or names upon it, etc.”
It has often been said that the killing of an animal with the intent to steal it is a sufficient taking of the animal. In Hall’s Case, 41 Tex. 287, the accused was convicted of the theft of two hogs. The court said:
“The hogs were killed in the woods, out of the immediate custody of the owner. By the act of killing, under such circumstances, the defendant may fairly be held to have had the hogs under his control and in his possession.”

In the present instance, the jury was warranted in finding the appellant’s explanation of his possession of the animals a fabrication. Gray was prosecuted for the same offense and his ease was affirmed. See Gray v. State (Tex. Cr. App.) 33 S.W.(2d) 457. There is no evidence found in the record which could have been interpreted by the jury as indicating that the appellant was the innocent receiver of animals stolen by some other person.

A rehearsal of the evidence is deemed unnecessary. It in substance appears in the original opinion. The conduct of the appellant and his alleged confederate Gray, as pointed out in the original opinion, was such as would justify the jury in concluding that after stealing the cattle, every tangible fact leading to their identity had been designedly obliterated by the appellant and Gray. Every means of making specific identification of the cattle by marks, brands, or color, had been destroyed.

Finding nothing in the record warranting a reversal of the conviction, the motion for rehearing is overruled.

On Appellant’s Request for Leave to File Second Motion for Rehearing.

Appellant has requested leave to file a second motion for rehearing in which our attention is directed to the Lane Case (Tex. Cr. App.) 45 S. W. 693. This was an earlier case than any of those mentioned and analyzed in our opinion on rehearing. It was not referred to in any of them. We would be inclined to follow the Clements Case, 43 Tex. Cr. R. 400, 66 S. W. 301, it being later than the Lane Case, if they are thought to be in conflict, for the reason that the exact point now before us was evidently given more consideration in the Clements Case.

Appellant calls our attention to an oversight in not discussing his claimed newly discovered evidence set up in his motion for new trial. It occurs to us that the slightest diligence before the trial would have resulted in finding the evidence claimed to have been newly discovered.

The request for leave to file second motion •for rehearing is denied.

HAWKINS, J.


author: CHRISTIAN, J.

text:
    REED v. STATE.
    No. 14189.
    Court of Criminal Appeals of Texas.
    March 4, 1931.
    Owsley & Owsley, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Appellant files in this court after the adjournment of the term of court at which he was convicted his affidavit in which he states, in substance, that he is not guilty of the offense for which he has been convicted. Reference is made in the affidavit to a statement sworn to by Lee Goodson, which also appears to have been originally filed in this court long after the adjournment of the term of court at which appellant was convicted. Goodson’s affidavit is to the effect that he saw one Pruitt rob the injured party, and that appellant did not participate in the commission of the offense, and was not present. Appellant states in his affidavit that he was not acquainted with Goodson, and had no knowledge of him until long after his trial and conviction. These affidavits cannot be considered for any purpose. Cassel, v. State, 94 Tex. Cr. R. 23, 249 S. W. 1079; Rea v. State, 77 Tex. Cr. R. 565, 179 S. W. 706; Cassius v. State, 110 Tex. Cr. R. 456, 7 S.W.(2d) 530; Williams v. State, 111 Tex. Cr. R. 378, 13 S.W.(2d) 112.

No bills of exceptions are found in the records.

Prank Evans, the injured party, testified that appellant came into his store with Bob Holley and another man, exhibited a pistol, and directed him to hold up his hands. He said he refused to obey appellant’s command, and endeavored to defend himself; that the parties beat him until he was unconscious ; that they then tied his hands and feet. Taking approximately $20' from the cash drawer, a pair of gloves and flashlight, the parties left the store. Upon regaining consciousness the next morning, the injured party called for help. Appellant and Bob Holley were arrested. The gloves belonging to the injured £>arty were found under a mattress in appellant’s room. The flash-light was found in the room of Bob Holley. We deem it unnecessary to recite other facts and circumstances found in the record supporting the testimony of the injured party as to the identity of his assailants. Appellant offered no testimony.

Being of the opinion that the evidence' is sufficient to support the conviction, the judgment is affirmed.

PER CURIAM.

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

HAWKINS, J., not sitting.


author: CALHOUN, J.

text:
    DURBIN v. STATE.
    No. 14017.
    Court of Criminal Appeals of Texas.
    March 11, 1931.

      Bogard & Anderson, of San Augustine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, manufacture of liquor; punishment, one year in the penitentiary.

The sheriff of San-Augustine county and one of his deputies testified that they caught the appellant making whisky. Appellant pleaded guilty to said charge and filed his plea for suspended sentence in due time and offered evidence to the effect that he was only 21 years of age and had never been convicted in •this state or any other state of a felony. Appellant did not testify.

Two matters are brought forward for review. One relates to the argument of the •district attorney and the other to the failure of the court to grant appellant a new trial on account of the jury receiving other testimony after their retirement.

Bill of Exception No. 4 complains of the action of the trial court in refusing to give appellant a new trial on the ground that, after the jury had retired to consider its verdict, but before said verdict had been reached or agreed on by the jury, said jury was given and obtained other and new testimony not adduced on the witness stand against appellant, which said new evidence and testimony is fully set out in an affidavit of one of said jurors, attached to said motion for new trial. The affidavit attached to appellant’s motion for a new trial, which affidavit was offered in evidence on said motion, was substantially as follows: That, after the jury had received the case, on the first ballot cast, four of the jurors voted in favor of giving the appellant a suspended sentence, but a portion of said jury, some three members, were opposed to the .granting of a suspended sentence. That these jurors who were opposed to the granting of a suspended sentence purported to know the appellant and his family, and, before a verdict was reached, stated to the remaining jurors, that the entire family, consisting of three boys, was in trouble. The jury discussed this matter, and it was reprc-sented to them that an older brother was then in jail in Hemphill, Tex., under sentence to the penitentiary, and that another brother was in jail in San Augustine county waiting trial on a whisky ease, and one the jurors stated that none of said family would work and that they had done nothing all year but make whisky and give trouble. A great deal of talk was made among the jurors as to the general reputation of the family and the older brothers of appellant. That after this conversation one of the members of the jury who had been in favor of a suspended sentence stated that, if that was the kind of people they were, he was not in favor of giving a suspended sentence to appellant. Thereafter one of the jurors made the statement that if a suspended sentence were given and defendant should thereafter be convicted of a felony, he would have to serve both terms, and one of the jurors remarked that the suspended sentence would not be invoked and pointed as an instance the case of Arthur Durbin, an older brother of appellant, and one of the jurors also remarked that appellant had not asked for a suspended sentence but only his lawyer had. That thereafter, under the persuasion of the talk and discussion and under the urging of some of said jurors who were desirous of being turned loose, the last juror in favor of a suspended sentence relented and voted in favor of conviction without suspended sentence.

Said bill of exception, as approved by the judge, is to the effect that the motion for a new trial and the affidavit of the juror was not contested by the state, nor was it in any, manner controverted; that the appellant did not testify as a witness in his own behalf; that his reputation or the refutation of his' family was not put in issue, nor was there any testimony showing that any of them had a bad reputation or were in trouble in the criminal courts, or that they had not followed a legitimate employment. The bill of exception further certifies as a fact that the only testimony heard by the court on the motion for new trial was the affidavit aforesaid and that the court found the matter set out in the affidavit of the juror to be true. It is a well-established principle of law in this State that a new trial will be granted where the jury after having retired to deliberate upon the case have received other testimony. The statute (Rev. St. 1925, art. 2234) is mandatory so far as it relates to other testimony, and this ground for new trial is on a different basis and under a different subdivision of the statute from misconduct. When the unsworn “other testimony” is received by the jury, the court will not speculate as to probable injury when it is against tbe accused. Branch’s P. 0. § 566; Mason v. State (Tex. App.) 16 S. W. 766; Burlesan v. State (Tex. App.) 15 S. W. 175; Blocker v. State (Tex. Cr. App.) 61 S. W. 391. The right to a suspended sentence is a valuable right, and the appellant was certainly not bound by the reputation that his brothers bore, nor was he bound by the reputation of his family, and, it being conclusively shown that all the additional testimony received was against the accused and that these matters entered into the verdict that was rendered against him on his plea for suspended sentence, we hold that same constitutes reversible error.

As to the bill complaining of the argument of the district attorney referring to the failure of the appellant to testify, we pass same without discussion, in view of the fact that the case must be reversed on other grounds.

For the error discussed, 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.


text:
    DUKE v. STATE.
    No. 13973.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    A. E. Masterson, of Angleton, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for t§n years.

Appellant and Sam Stapleton were jointly indicted for the murder of W. E. Holmes. A severance being had, Stapleton was first placed on trial, and convicted. On appeal to this court the judgment of conviction was affirmed. See Stapleton v. State, 113 Tex. Cr. R. 543, 22 S.W.(2d) 939.

Several hours before the homicide, appellant, Sam Stapleton, and the sons of Staple-ton had had some trouble with deceased. According to the testimony of state’s witnesses, deceased and some of his friends were in a negro house. Appellant and his companions entered the house, approached deceased and his friends, and cursed them. Deceased struck appellant and Sam, Stapleton with his fist, whereupon appellant and his companions left the house. Several hours later deceased and his associates started back to the penitentiary farm where they were employed as guards. They met appellant, Sam Stapleton, and Stapleton’s sons in the road. Witnesses for the state testified that Sam Stapleton shot deceased with a shotgun. According to the state’s version, deceased,was unarmed. The state’s testimony was further to the effect that appellant said to deceased at the time of the difficulty in the negro house: “I will see you again.” Further, according to the version of the state, when the parties met on the road several hours after the difficulty in the negro house, deceased had gotten out of the car in which he was riding and walked up the road. State’s witness Woodley, who was in the car with- deceased, testified, in substance, that appellant walked up to the car and asked him: “Ain’t you the s-s of b-s that whipped us up over there?” The witness having replied in the negative, appellant said: “Yes, I believe you are the G- d-d s- of a b-that whipped up on us out there.” The witness again replied 'in the negative, and appellant said, according to the testimony of the witness: “Where is the other two fellows that were in there with you?” The witness said: “They ain’t nobody in here with me.” Appellant replied: “You are a G- d- liar. There was while ag<r,” The witness then told appellant , that the parties had gotten out and gone up the road, answer to this, appellant said:’“I believe you are the G-d-b-d that whipped, us up.” The witness again denied the.charge, and appellant then told him that he apologized to him if he was not the man. The parties then shook hands. About the time this conversation between appellant and the witness ended, deceased came up to the car. Sam Stapleton, who was standing nearby with a shotgun, raised.the gun as some one said: “There is one of the s-s of b-s now.” Stapleton fired three shots at deceased. Appellant had a shotgun in Ms car, but had no arms on his person. No witness for the state was able to testify that appellant said anything to Stapleton or to deceased. It appears that, at the time Stapleton fired upon deceased, appellant was on the opposite side of the automobile from Stapleton and deceased, talking to one Fenn, who testified in appellant’s behalf. In

Appellant denied that he had entered into a conspiracy with Sam Stapleton to kill deceased. He admitted that he had a shotgun in his car, but stated that he had carried the gun from his home for the purpose of shooting ducks. He declared that he said nothing to Stapleton at the time he fired upon deceased, and that he did not encourage him, by acts or words, to attack deceased. He testified that he did not know that it was Staple-ton’s intention to attack or kill deceased. Further, he testified that he had no intention to kill deceased.

Appellant timely and .properly objected to the charge of the court because of its failure to submit an instruction covering the law of circumstantial evidence. We think the charge should have been given. Such evidence as is found. in the record against appellant is wholly circumstantial. No one testified that appellant took part in or advised the homicide. The state’s evidence negatives any immediate act of appellant. Sam Stapleton fired the fatal shots. Appellant’s connection as a principal in the transaction depended upon inferences to be drawn from other facts in evidence. The state relied upon circumstances to show that appellant advised or' encouraged the homicide. It is well established that, when the actual killing is done by another, the mere presence of the accused does not deprive him of the privilege of having his criminal connection with the offense determined by the rule of circumstantial evidence. Burrell v. State, 18 Tex. 713; Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82; Joyce v. State, 90 Tex. Cr. R. 265, 234 S. W. 895; Tipton v. State, 95 Tex. Cr. 205, 253 S. W. 301.

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.


text:
    WILSON et al. v. STATE.
    No. 13701.
    Court of Criminal Appeals of Texas.
    March 11, 1931.

      Taylor, Muse & Taylor, of Wichita Falls, for appellants.
    Sam B. Spence, Dist. Atty., and Geo. W. Anderson, Asst. Dist. Atty., both of Wichita 'Falls, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is accepting a bribe; the punishment, confinement in the penitentiary for two years.

It was alleged in the indictment that appellants were “the duly qualified and acting deputy constables of precinct No. 1 of Wichita County, Texas, and peace officers.” Appellants made a motion to quash the indictment on the ground that deputy constables are not peace officers within contemplation of article 36, Code of Criminal Procedure, which reads as follows: “The following are ‘peace officers’: the sheriff, and his deputies, constable, the marshal or policemen of an incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person specially appointed to execute criminal process.”

Appellants were prosecuted under the provisions of article 174, Penal Code, which denounces as an offense the acceptance of or agreement to accept a bribe by any sheriff or other executive or peace officer. Article 6878, Revised Statutes 1925, provides for the election of constables. Article 6879, Revised Statutes 1925, reads as follows: “When in any such justice precinct there may be a city of eight thousand, or more inhabitants, such constable may appoint no more than two deputies who shall qualify as required of deputy sheriffs; and provided, that, when in any such justice precinct there may be a city of forty thousand or more inhabitants, such constable may appoint five deputies and ho more, who shall qualify as required of deputies; provided, such constable shall first make written application to the commissioners court of his county, showing the necessity .therefor, giving the name of each proposed appointee, for the approval and confirmation of said court. In justice precincts which do not contain a city of eight thousand or more inhabitants, said constable may appoint no more than one deputy who shall qualify in such manner as is required by law.”

Article 6869, Revised Statutes 1925, prescribes the manner in which deputy sheriffs are required to qualify. It is true that article 36 of the Code of Criminal Procedure does not provide that a deputy constable is a peace officer. However, this article was enacted long prior to the time that provision was made for the appointment of deputy constables. We think it was the intention of the Legislature in providing for the appointment of deputy constables to impose upon such officials the duties required of peace officers. If such were not the ease, the civil statutes to which reference has been made are without efficacy. Having clothed deputy constables with the power and authority of their principals, was it the intention of the Legislature to exempt such officers from the operation of the statute denouncing as an offense the acceptance of a bribe by a peace officer? We think not. To so hold would give effect alone to the provisions of article 36, Code of Criminal Procedure, without regard to the civil statutes relating to the appointment of deputy constables. The statutes in question were by the Legislature brought forward in the Penal Code, Code of Criminal Procedure, and Civil Statutes in the revision of 1925. It is the rule that “all consistent statutes which can stand together, though enacted at different dates, relating to the same subject, * * * are treated prospectively and' construed together as though they constituted one act.” Lewis’ Sutherland Statutory Construction (2d Ed.) vol. 2, § 443. We quote from the text last mentioned, as follows: “Statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times. Acts in pari materia should be construed together and so as to harmonize and give effect to their various provisions. This -is especially the case when the acts are passed at the same session. * * * Statutes constituting a system should be so construed as to mate that system consistent in all its parts and uniform in its operation.”

We quote further: “While all statutes pertaining to crimes and their punishment should be strictly construed, and nothing left ■to intendment, they should not he so construed as to thwart the evident will and intention of those who enacted them, where that intention is plainly and fairly deducible from the law itself.” State v. Bishop, 128 Mo. 373, 384, 31 S. W. 9, 29 L. R. A. 200, 49 Am. St. Rep. 569; Lewis’ Sutherland Statutory Construction, vol. 2 (2d Ed.) § 528. We think it was the plain intention of the Legislature in enacting article 6879, Revised Statutes, to bring deputy constables within the definition of peace officers, and that such officers are amenable to prosecution for accepting a bribe.

In, their motion in arrest of judgment, appellants alleged that they were indicted by an illegal grand jury. It appears that the grand jury which indicted appellants had been selected by a jury commission appointed by the judge of the Thirtieth district court. Said grand jury reported at the January term, 1930, of said court. Thereafter the court adjourned, and the grand jury was discharged. After the adjournment of the Thirtieth district court, the judge of the Seventy-Eighth district court entered an order reassembling the grand jury that had served in the Thirtieth district court, and directed the sheriff to summon the members thereof. This appears to have been done pursuant to the provisions of Senate Bill No. 36, chapter 6, Acts of 1915, which provided that the judge of the Seventy-Eighth district court should have authority at any time he might think it necessary to recall, reassemble, and reimpanel the grand jury last impaneled in the Thirtieth district court. The sheriff having summoned the grand jurors,' they were sworn and tested as to their qualifications, and thereafter duly sworn and impaneled. Appellants had been arrested prior to the impanelment of said grand jury. Their attorney was present when the grand jury was impaneled, and requested and secured special instructions to said grand jury relative to the investigation of the offense with which appellants were charged. No challenge to the array was made.

The act relating to the reassembling of the grand jury last serving in the Thirtieth district court by the judge of the Seventy-Eighth district court was not brought forward in the ■revision of 1925. Article 372, O. O. P., provides: “A grand jury discharged by the court for the term may be reassembled by the court at any time during the term. If one or more of -them fail to reassemble, the court may complete the panel by impaneling other men in their stead in accordance with the rules provided in this chapter for completing the grand jury in the first instance.”

The judge of the Seventy-Eighth district court was without authority under the terms of the foregoing article to reassemble the grand jury theretofore serving in the Thirtieth district court. However, the members composing the grand jury were qualified. They were sworn and tested as to their qualifications and properly sworn and impaneled as grand jurors. Article 358, O. C. P., provides: “Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications' and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge.”

Article 359, Ü. O. P., provides: “By the array of grand jurors is meant the whole body- of persons summoned to serve as such before they have been impaneled.”

Article 360, O. O. P., reads as follows: “A grand juror is said to be ‘impaneled’ after his qualification® have been tried and he has been sworn. By' ‘panel’ is meant the whole body of grand jurors.”

Article 361, C. C. P., provides:

“A challenge to the array shall be made in writing for these causes only^
“1. That those summoned as grand jurors are not in fact those selected by the jury commissioners.
“2. In case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them.”

Article 506; O. O. P., reads as follows:

“A motion to set aside an indictment or information shall be based on. one or more of the following causes, and no other:
“1. That it appears by the records of the court that the indictment was not found by at least nine -grand jurors, or that the information was not based up on a valid complaint
“2. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the samé.”

Appellants’ attack goes to the organization and the manner of selecting the grand jury. Conceding that the selection and organization were not in strict compliance with statutory requirements, the opinion is expressed that the objection came too late. Appellants were under arrest at the time the grand jury was impaneled. Hence they were not within the exception to the operation of articles 358 and 506, which exception is to the effect -that the accused may by motion to quash take advantage of the same question which would have been available in the challenge to the array provided he had not been arrested or the offense had not been committed at the time of impaneling the grand jury which returned the indictment against him. Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443, and authorities cited. Another exception may be found in the decisions holding that the acts of purported grand juries composed of more or less than 12 men may be attacked, even after conviction upon the ground that such bodies are not in fact grand juries but attempted to function as such in violation of article 5, § 13, of the state Constitution. Powell v. State, supra; Ex parte Reynolds, 35 Tex. Cr. R. 437, 34 S. W. 120, 60 Am. St. Rep. 54. This exception has no application in the present case. A third exception to the application of the provisions of articles 358 and ,506 may be found where the record shows an arbitrary disregard of the statutory provisions relating to the manner of selecting grand jurors. The instant ease fails to fall under this exception. In view of the fact that the case at bar falls within none of the exceptions, we are constrained to hold that articles 358 and 506 have application, and that the attack upon the grand jury by motion in arrest of judgment cannot be upheld. Powell v. State, supra.

Over timely and proper objection, the court charged the jury as follows: “You are, however, instructed that such corroborative testimony need not be direct and positive, independent of the testimony of said J. J. Crow; but such facts and circumstances as tend to support his testimony and which satisfy the. jury that he is worthy of credit as to the facts essential to constitute the offense of bribery as hereinbefore defined to you will fulfill the requirements of the law as to corroboration. It is for you to say from all the evidence before you whether he has been sufficiently corroborated.”

In Walker v. State, 94 Tex. Cr. R. 653, 252 S. W. 543, 547, the court instructed the jury as follows: “Proof of such facts and circumstances as tend to support the testimony of the accomplice and which satisfy the jury that he is worthy of credit as to those facts, essential to constitute the offense of murder and which tend to connect the defendant or defendants with the commission of the offense charged, satisfies the law,” etc.

In condemning the charge in Walker’s Case, Judge Lattimore said: “The danger and mistake of such a charge is thus made to appear by the transposition of a comma, for it needs no argument to demonstrate that the jury may not convict on the testimony of an accomplice whose evidence is corroborated no further than is necessary to satisfy the jury that the accomplice is worthy of credit as to those facts which are essential to constitute the offense of murder, and which tend to connect the defendant with such crime. If the purpose of the lawmakers had been to only require that the jury be satisfied that the accomplice was worthy of credit, they wc-uld have said so, but they did not. The charge under consideration is so worded as, in effect, to say that the test of corroboration is: Does if satisfy the minds of the jury that the accomplice is worthy of credit? This is not the test laid down in the law. Murphy v. State, 65 Tex. Cr. R. 55, 143 S. W. 616, and Cole v. State, 70 Tex. Cr. R. 459, 156 S. W. 929, present similar charges; the Oates Case, 67 Tex. Cr. R. 488, 149 S. W. 1194, does not. There are other things in the Forson [90 Tex. Cr. R. 271, 234 S. W. 913], Murphy, and Cole Cases, supra, which may be permitted to stand, but in so far as said opinions conflict with this one they will be overruled.”

In Pryor v. State (Tex. Cr. App.) 29 S.W. (2d) 776, a charge in substantially the same language as the one in the instant case was also condemned by this court, and the case of Walker v. State, supra, cited in support of the holding. J. J. Crow testified to having paid appellants a sum of money in order to regain his release after they had arrested him for transporting intoxicating liquor. The court instructed the jury that Crow was an accomplice witness. The state relied largely upon circumstances to corroborate the accomplice. Giving effect to the decisions of this court, we must hold that the charge under consideration presents reversible error.

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.