author: STEAKLEY, Justice. SMITH, Justice

text:
    A. J. WOOD, Jr., Petitioner, v. PARKER SQUARE STATE BANK, Respondent.
    No. A-10867.
    Supreme Court of Texas.
    March 23, 1966.

      Prothro & Sellers, Wichita Falls, for petitioner.
    Nelson, Montgomery & Robertson, Wichita Falls, for respondent.
   STEAKLEY, Justice.

On August 1, 1962, the Respondent bank loaned Lincoln Enterprises, Inc., the sum of $125,000.00, evidenced by a promissory note payable in five annual installments. The note was secured by a duly recorded deed of trust lien on 34.6 acres of land in Wichita County. The provisions of the deed of trust regarding future indebtedness are involved here. The first provision quoted below was added to the printed deed of trust form; the last quoted was a part of the printed form:

“ * * * (as well as all other indebtedness which may accrue and become owing in the future either as maker, endorser, guarantor or surety (direct or contingent) and all interest charges and attorney’s fees thereon, and all extensions and renewals thereof, then this conveyance shall become null and void and these presents shall be released in due form at grantor’s expense) * *
* * * * * *
“And this conveyance is made for the security and enforcement of the payment of said indebtedness and also to secure the payment of any and all other sums of money which may be advanced for or loaned to grantors by the beneficiary, his heirs or assigns.”

On January 23, 1963, Petitioner loaned Lincoln Enterprises, Inc., the sum of $50,000.00, evidenced by a promissory note and secured by a deed of trust covering the same land. The lien was expressly subordinated to the August 1, 1962, deed of trust lien held by the respondent bank.

On October 3, 1963, Lincoln Enterprises, Inc., executed a note of $21,248.46, payable to Wayne K. Horton ninety days after date. The note represented funds previously advanced by Horton to Lincoln over a period of several years. Horton was an employee of respondent bank to which he was indebted. On October 26, 1963, the bank purchased the Lincoln note from Horton and a portion of Horton’s indebtedness to the bank was paid out of the sum paid Horton for the note. It is undisputed that prior to the purchase of this note the bank had actual knowledge of Petitioner’s note and second lien.

In January, 1964, the bank foreclosed its lien on the land and claimed that it also secured the Horton note. By agreement of the parties Petitioner bought the land at the trustee’s sale, paid Respondent the balance due on the $125,000.00 note, and placed the sum of $21,980.00, the sum then due on the Horton note, in escrow pending a judicial decision as to the rights of the respective parties. Petitioner thereupon instituted suit for a judicial declaration that the bank was not “entitled to add the sum due under the note of October 3, 1963, executed by Lincoln Enterprises, Inc., in favor of Wayne K. Horton, to the amount of its first lien on the above property so as to make such sum first and superior to the lien in favor of your Plaintiff [Petitioner here].” Petitioner also alleged that the respondent bank was estopped to so assert the superiority of its lien. Both parties moved for summary .judgment and that of the respondent bank was granted. The Court of Civil Appeals affirmed. 390 S.W.2d 835. We reverse the judgments below and render judgment for Petitioner.

The parties appear to have assumed in their pleadings and motions, and in their presentations to the Court of Civil Appeals and to us, that the acquisition by the bank of the Horton note was a future advancement or other indebtedness within the contemplation of the parties and of the terms of the deed of trust which Lincoln Enterprises gave the bank. Petitioner argues here, as he did below, that the bank does not have priority over its second lien to the extent of the Horton note indebtedness because the bank was not obligated to acquire the Horton note and did so voluntarily with notice of Petitioner’s second lien. The Court of Civil Appeals decided the case adversely to these contentions upon the authority of Freiberg v. Magale, 70 Tex. 116, 7 S.W. 684 (1888), and its line of cases.

Freiberg established the rule in Texas that a mortgage can be made to cover future debts which will be good not only between the parties but as to purchasers from the mortgagee with notice of the mortgage. The mortgage there considered was given to -secure a specific debt, together with any other debt the mortgagor might thereafter owe the mortgagees by reason of the sale of merchandise, or in any other manner. The specific holding was that the mortgage included an indebtedness thereafter arising out of the guarantee by the mortgagee of certain debts of the mortgagor, and was not confined to debts arising from the sale of goods to the mortgagor. In referring to the provisions of the mortgage there under review the Court said “These frequent repetitions leave no doubt that the instrument was intended to cover every character of debt that Owens [the mortgagor] might in future owe to the mortgagees during the existence of the mortgage.” Freiberg, however, is inapposite to the case at bar. The mortgagees there guaranteed the mortgagor’s debts in question before they accrued and became owing and before the intervening sale of the mortgaged goods to a third party. The guarantees were immediate advances of credit for the benefit of the mortgagor and, indeed, were at his request. The case did not involve the problem here presented where the senior lienholder has voluntarily purchased a third party debt of the mortgagor in a transaction of no benefit to the mortgagor and not at his request. The rule in such a situation has been stated to be as follows:

“A mortgagee, buying up claims held by third persons against his mortgagor, cannot include them in his mortgage and compel their settlement as a condition to redemption, or have them included in a foreclosure decree, unless with the consent of the mortgagor and in cases where no subsequent purchaser or lien creditor will be prejudiced. Even where the mortgage is so drawn as to cover any demands which the mortgagee may hold against the mortgagor, the mortgagee cannot by virtue of the instrument buy up outstanding claims against the mortgagor and include them in the security, unless a provision that he may do so is clearly and unequivocally expressed, since a stipulation of this character ordinarily can cover only such demands as arise directly out of dealings between the parties to the instrument.” 59 C.J.S. Mortgages, § 178 c, p. 224.

We recently held in Moss v. Hipp, 387 S.W.2d 656 (Tex.Sup.1965), that mortgage stipulations securing future indebtedness apply only to those debts which were reasonably within the contemplation of the parties. In Moss, Falls borrowed $3,500.00 from Hipp in 1960 to make a down payment on a tractor-trailer. In 1961 Falls borrowed the remainder of the purchase price from the American National Bank and as security for his note to the bank in the sum of $5,471.28 gave the bank a chattel mortgage on the tractor-trailer which contained broad lien provisions securing “ * * * any other note or indebtedness now or hereafter by me/us owing at any time during the existence of this mortgage.” Falls was unable to meet the payments on the note of the bank whereupon Hipp paid the entire balance and took an assignment of the note and chattel mortgage on December 9, 1962. Moss was a garage mechanic who repaired the tractor on several occasions from October 10, 1961, to August 22, 1962. He was not paid and brought the suit to foreclose his constitutional lien on the tractor. We held that the “dragnet” clause in the chattel mortgage did not secure Hipp’s original $3,500.00 loan; in so doing we said:

“Provisions of this type apply only to indebtedness which was reasonably within the contemplation of the parties to the mortgage at the time it was made. See National Finance Co. v. Fregia, Tex.Civ.App., 78 S.W.2d 1081 (writ dis.); Republic Nat. Bank of Dallas v. Zesmer, Tex.Civ.App., 187 S.W.2d 227 (no writ); 15 Am.Jur.2d Chattel Mortgages § 80; 14 C.J.S. Chattel Mortgages § 110. The trial court found as a fact that it was not within the contemplation of the parties to the note and chattel mortgage that the original loan would be secured by the mortgage, and the record does not show as a matter of law that the mortgage was intended to secure indebtedness of that nature. In view of the trial court’s finding, therefore, we hold.that the mere acquisition by respondent of the note secured by the chattel mortgage did not give him a lien on the tractor to secure the original loan.”

The positions of the parties when viewed before the assignment of the unsecured note in the case at bar and before the assignment of the note and mortgage in Moss are similar. Here, Lincoln Enterprises as mortgagor, Parker Square State Bank as senior lienholder, Horton as holder of the unsecured note, and Wood as the junior mortgagee, occupy the same respective positions as Falls, American National Bank, Hipp, and Moss. The only factual difference between the two cases is that in Moss the holder of the unsecured note purchased the note secured by the mortgage containing the “other indebtedness” clause from the senior lienholder; whereas here, the senior lienholder purchased the unsecured note. These converse situations are basically two' sides of the same coin. Here, as in Moss, there is no showing that the mortgagor intended that his property be security for anything other than future advances made directly to him or on his behalf, and with respect to dealings between him and the holder of the mortgage.

The cases considering the problem are annotated in 172 A.L.R. 1079 at page 1091. The cases are there noted where the courts have adopted the view that in future indebtedness provisions, often referred to as “dragnet clauses,” the mortgage is security for such indebtedness of the mortgagor as may be acquired by the mortgagee. Also noted are the cases where the courts have taken the opposite view, namely, that the security of the mortgage containing such provisions does not extend to claims purchased or otherwise acquired by the mortgagee against the mortgagor. The courts adhering to the latter view speak variously in terms of such future indebtedness provisions covering only demands directly arising out of the dealings between the mortgagor and the mortgagee; that the words “and all other indebtedness” will be construed to mean indebtedness of the same nature as that previously described in the instrument; that it is plain the parties contemplated and meant that the additional indebtedness that the mortgage would secure would be one arising out of a transaction inter partes-, that it was not contemplated or meant that the mortgagee could buy up third party debts which after the purchase would be secured by the mortgage; and that a mortgagee buying up claims held against his mortgagor by third persons cannot have them embraced in, and secured by, his mortgage, or included in the foreclosure decree, unless the language of the instrument provides in the clearest and most unmistakable terms for their inclusion, and unless such stipulation was expressly called to the mortgagor’s attention and he assented thereto. These policy expressions are basically sound.

In the case at hand there is no suggestion in the pleadings of the parties, or in their agreed stipulation of facts, or in their affidavits supporting their respective motions for summary judgment, of any agreement regarding future indebtedness other than the agreement represented by the terms of the deed of trust given to the bank. Moreover, all matters considered by the trial court have been brought forward and there are no presumed findings in support of its judgment. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; and see Rolfe v. Swearingen, 241 S.W.2d 236 (Tex.Civ.App. 1961, writ ref. n. r. e.).

It is clear that the purchase by the bank of the Horton note did not represent a sum of money “advanced for or loaned to” Lincoln Enterprises within the terms of the printed deed of trust form. The further question is whether the added parenthetical provision broadly purporting to extend the deed of trust lien to “all other indebtedness which may accrue and become owing in the future either as maker, endorser, guarantor or surety” includes unsecured third party obligations of Lincoln Enterprises voluntarily acquired by the respondent bank. We hold that it does not. The more reasonable construction of this general language is that it referred to obligations directly arising between Lincoln Enterprises and respondent bank, i. e., where Lincoln became obligated to the bank as the maker of an obligation, or became liable in a secondary capacity in favor of the bank. In any event, these provisions do not constitute an agreement between Lincoln Enterprises and the respondent bank that third party debts then or later owing by Lincoln Enterprises as maker, or in a secondary capacity, to which the bank is a stranger, would be brought within the security of the deed of trust lien upon their voluntary acquisition by the respondent bank. It follows that the Horton note is not included in or covered by Respondent’s lien.

The judgments of the trial court and of the Court of Civil Appeals are reversed. Judgment is here rendered that Respondent, Parker Square State Bank, is not entitled to add the sum of $21,980.00 to the amount of indebtedness secured by its first lien on the property in question; and that Petitioner, A. J. Wood, Jr., is entitled to retain the sum of $21,980.00 which was placed in escrow by him pending a judicial declaration of the rights of the parties.

SMITH, Justice

(dissenting).

I respectfully dissent. The provision added to the deed of trust form should be construed as being an unequivocal and plainly stated agreement that indebtedness such as the Horton note was within the contemplation of the parties at the time the deed of trust was executed. The deed of trust embraced a third party debt such as we have here. The economic welfare of a lender or a borrower should not be jeopardized by a narrow construction of language in an instrument which rather definitely shows that an indebtedness such as Horton’s was within the contemplation of the parties to the bank’s deed of trust. I respectfully differ with the Court in its construction of the terms of the deed of trust. The second lien is inferior to the bank’s lien.

      . The case came to this Court from the sustainment of demurrers to the petition, and a dismissal of the suit upon a declination to amend, on the ground that the petition did not state a cause of action. The petition alleged that the guarantees in question were made at the special instance and request of the mortgagor.

      . Nix v. Hopper, 18 Ala.App. 240, 90 So. 35 (1921); Collins v. Gregg, 109 Iowa 506, 80 N.W. 562 (1899); First National Bank v. Byard, 26 N.J.Eq. 255 (1875); Lamoille County Savings Bank & Trust Co. v. Belden, 90 Vt. 535, 98 A. 1002 (1916).

      . Martin v. Halbrooks, 55 Ark. 569, 18 S.W. 1046 (1892); Lightle v. Rotenberry, 166 Ark. 337, 266 S.W. 297 (1924); Berger v. Fuller, 180 Ark. 372, 21 S.W.2d 419 (1929); Provident Mutual Building & Loan Ass’n v. Shaffer, 2 Cal.App. 216, 83 P. 274 (1905); First National Bank v. Combs, 208 Ky. 763, 271 S.W. 1077 (1925); Lashbrooks v. Hatheway, 52 Mich. 124, 17 N.W. 723 (1883); Strong Hardware Co. v. Gonyow, 105 Vt. 415, 168 A. 547 (1933), which distinguished the Lamoille County case, supra note 2. Cf. Poulter v. Weatherford Hardware Co., 166 S.W. 364 (Tex.Civ.App. 1914, no writ hist.); Sullivan v. Murphy, 212 Iowa 159, 232 N.W. 267 (1930).


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Eddie ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 39278.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 20, 1966.
    W. T. Wood, Jr., Gilbert I. Low, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft with two prior convictions for non-capital felonies alleged for enhancement; the punishment, life.

The State’s proof established and appellant testified that he purchased a 1957 De Soto automobile in Chicago. In paying for the same, part in cash and part in a worthless check, he used the operator’s license belonging to one Billy Newton as identification in order to secure Illinois license plates. Appellant was arrested three months later in Fort Worth seated in a 1957 Chevrolet which had the Illinois license plates for the De Soto attached thereto. Newton testified that he had lost his operator’s license, as well as his billfold and all its contents, in a Fort Worth Bar some time prior to the day in question.

It was further shown that the owner of the Chevrolet left it at a filling station in Beaumont for servicing and that when he came to get it after the filling station had closed, it was missing, and the De Soto in question without license plates was found in its place. He later identified his Chevrolet in the custody of the Fort Worth police.

The prior convictions were established, and appellant admitted that he had served the consecutive sentences therein alleged, as well as other felony sentences.

Appellant’s first contention is that a variance exists between the allegation in the indictment that he stole the Chevrolet from its owner and the proof, which showed that the filling station operator had possession thereof at the time of the theft. We do not agree and have concluded that Thomas v. State, 80 Tex.Cr.R. 282, 203 S.W. 773, and Emerson v. State, 33 Tex.Cr.R. 89, 25 S.W. 289, support the State’s contention that possession was properly alleged in the real owner.

Appellant’s testimony clearly eliminates the question of the State’s failure to prove the sequence of the prior convictions.

There is no merit in appellant’s contention that he should have been served with copies of the prison records concerning the prior convictions prior to trial. Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154; Turley v. State, 168 Tex.Cr.R. 363, 327 S.W.2d 580; and the cases there cited.

We overrule appellant’s contention that the evidence is insufficient to show that he intended to permanently appropriate the Chevrolet to his own use and benefit or that the court erred in charging the jury thereon.

The court properly instructed the jury in his charge that they might not consider appellant’s prior convictions as any evidence of appellant’s guilt of the primary offense.

Appellant’s contention that the court erred by not charging on alibi requires a more detailed discussion of the evidence. While it is true that appellant testified that he did not steal the Chevrolet in Beaumont, he did not state definitely that he was not in Beaumont on the day it was stolen. He traces his movements from Chicago to Jackson, Alabama, and thence to Fort Worth, but he was so indefinite as to dates that the trial court was justified in refusing to submit the defense of alibi. In fact, appellant’s testimony does not show where he was on the day charged in the indictment. While testifying concerning his trip from Alabama to Fort Worth, he said, “I am still not sure about those dates.” Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73, and the cases there cited are authority supporting the court’s action in declining to charge on alibi. See also 31 Tex.Jur.2d, sec. 114, p. 670.

Appellant’s other contentions have been reviewed and are found to be without merit.

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


text:
    Lois COX, Appellant, v. The STATE of Texas, Appellee.
    No. 39377.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Marion H. Gibbons, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, three years in the Department of Corrections.

This lengthy record develops in detail a disturbance between appellant and one Golden in Golden’s yard. We see no materiality in whether or not appellant tried to run over Golden with her automobile in his yard or why he threw a brick through her windshield, because the offense for which appellant is on trial occurred after she left the Golden house and was apprehended by the arresting officers while she was driving upon a public highway. It was their testimony that while stopped and while talking to Golden, a Lincoln automobile driven by appellant and traveling some 25 miles per hour, ran into Golden’s Renault automobile, backed up, hit it again, knocking it into a ditch, and then drove away. They gave chase and when appellant’s automobile was finally brought to a halt, she used abusive language toward them, smelled of intoxicants, staggered when she walked from her automobile to the police car, refused to give her name, spoke in a very slurred manner, and the officers were “unable to get a coherent answer from her.” They expressed the opinion that she was intoxicated.

Appellant, testifying in her own behalf, admitted the prior conviction for misdemeanor driving while intoxicated and stated that her vision was impaired on the night in question when Golden removed her glasses and threw a brick through her windshield, and denied that she had consumed any intoxicants on the day in question.

The jury resolved this disputed issue as to appellant’s intoxication against her, and we find the evidence sufficient to support the conviction.

By brief it is contended that the court erred in not permitting the attorney for appellant to inquire into the specific details of an altercation between Golden and appellant’s witness Ogburn, who testified concerning the reputation of Golden as a peaceful, law abiding citizen.

Appellant has cited no case in support of his contention. Since we have concluded that Golden was not a material witness to the offense here charged, his reputation was not in issue, and this being so, clearly the specific details upon which the witness Ogburn based her opinion were not relevant, and the court’s refusal to permit such question did not constitute reversible error.

Finding no reversible error, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Clarence GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38911.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 20, 1966.
    Tom Upchurch, Jr., Amarillo (on appeal only), for appellant.
    Naomi Harney, County Atty., Charles W. Fairweather, Asst. County Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The conviction is for possession of a dangerous drug, barbiturates; the punishment, one year in jail and a fine of $350.00.

Deputy Sheriff DeBose testified that he and Deputy Sheriff Ball went to appellant’s cafe, known as the Gay Paree, and the following excerpt from his testimony summarizes most of the facts relied upon by the state:

“Q: After you walked into the place, tell the Court what you observed there inside the Gay Paree.
A: We aalked (sic) into the Gay Paree. There was quite a few people inside. They was all standing up talking. After we was in there about 5 or 10 minutes, we noticed Garrett walk in the place. So he had a talk with 2 or 3 people. So he nodded his head and walked out and stayed out about 3 minutes and came back. So Clarence (Ball) and I decided that we would ask him out and talk with him. So we had got a lot of reports that he was selling pills and we asked him about it. So he said he didn’t have anything but we could look if we wanted to. So we taken him out because we didn’t want to embarrass him and we looked. So in his left sock we found a bag — a white bag. We found a white bag and we asked him could we look in his car — ■ and he said that we could but the car was locked, so he opened the door. Clarence (Ball) looked in the car and under the underside of the dashboard he pulled out a little white jar I guess about that tall and maybe about that wide.
Q: Was that jar almost full of pills?
A: Almost full.”

Dr. Jack Wyatt was qualified as an expert with 32 years experience in chemical analysis. He testified that he had analyzed the chemical content of the pills in the white paper bag and the bottle, and that they were barbiturates — a dangerous drug that is habit-forming.

Deputy Sheriff Ball testified to substantially the same facts as had his fellow officer, DeBose.

Appellant did not take the witness stand, nor did he present affirmative evidence in his behalf. We find the state’s evidence sufficient to support the jury’s verdict of guilty.

Appellant contends that the conviction must be reversed because the evidence was obtained by unlawful search and seizure after an unlawful arrest. From the record, it appears that appellant consented to the search of his person and also to the search of his automobile, and is therefore in no position to complain of the search. Merwin v. State, 172 Tex.Cr.R. 244, 355 S.W.2d 721. Also, while there were objections to Deputy Ball’s testimony concerning the search, Deputy DeBose’s testimony set out above disclosed the same facts, without objection to their admissibility. Further, when the barbiturates were introduced into evidence, no objection was made on this ground. Under these circumstances, any possible error was waived. Garza v. State, 172 Tex.Cr.R. 468, 358 S.W.2d 622, 623.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Felipe RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 39508.
    Court of Criminal Appeals of Texas.
    April 6, 1966.

      Henrichson & Bates, by James S. Bates, Edinburg, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary; the punishment, two years.

Raul Gutierrez testified that he owned and operated a tavern in a one-room building with a store room which he closed about 11:45 p. m.; that his brother notified him about 2 a. m. that he had seen a car and some men at his tavern, and on going to the tavern he found that the glass panel in the rear door had been broken, the bar across the inside of the door had been removed, and the door was open; that some peanuts, chewing gum, and about ten cases of beer which were in the building when he closed were missing; and he did not give anyone his consent to break and enter the tavern and take anything therefrom.

Noe Gutierrez testified that he lived next door to his brother’s tavern, and on returning home about 1:40 a. m. he saw a 1956 Oldsmobile parked at the tavern and four cases of beer beside the car on the ground and some peanuts and candy behind the car; that as he approached he saw four men and all ran from the scene, but he never recognized any of them; that he noted the license number of the Oldsmobile, and while gone to notify his brother, someone drove it away.

Guadalupe Gauna testified that he met the appellant, Ramiro Suarez, and Juan Ramos at an inn where they stayed until about 12:45 a. m.; that because of his drunken condition he had rested in Suarez’s car a short time before the appellant, Suarez, and Juan Ramos came, and they left but soon stopped because, “The boys wanted to make a breákin”, and, “They said they were going to take some beer from that tavern”, and the three boys got out and went to the tavern but he remained in the car, and after about ten minutes Suarez came and moved the car to the tavern; that he never agreed to help and said nothing, just sat in the car, and the beer was brought out and placed beside the car, and at this time they saw the lights of another car coming and they all ran from the scene. Gauna testified that he told the boys he would go with them but just to sleep in the car so he could drive his car home when they got back; and that he never acted as a lookout and had nothing to do with the burglary.

The testimony of Ramiro Suarez sufficiently reveals that he, the appellant, and Juan Ramos, either alone or as principals, forcibly and without the consent of Raul Gutierrez entered his tavern building and took therefrom several cases of beer without his consent; and that at this time they saw the lights of a car which was approaching and they ran away from the tavern. He further testified that Guadalupe Gauna was with them after they left the inn but he stayed in the car.

The appellant did not testify or offer any testimony in his behalf.

Appellant contends that the witness Suarez was an accomplice as a matter of law, and that the witness Gauna is an accomplice as a matter of fact, and that there is no other evidence connecting the appellant with the commission of the burglary. Therefore, the evidence is insufficient to support the conviction.

The trial court charged the jury that the witness Suarez was an accomplice as a matter of law.

The evidence raises a fact issue as to whether Gauna was an accomplice witness. The court in his charge defined the term “accomplice” and submitted the issue as to whether Gauna was an accomplice, with an appropriate instruction as to the corroboration required to convict upon accomplice testimony.

The jury resolved the accomplice issue against the appellant, and it is concluded that the evidence supports their decision. Rich v. State, 150 Tex.Cr.R. 167, 199 S.W.2d 178; Garza v. State, 164 Tex.Cr.R. 9, 296 S.W.2d 267.

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

Opinion approved by the court.


text:
    Clem H. LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 39247.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Jack C. Morgan, Kaufman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is burglary with two prior non-capital convictions alleged for enhancement; the punishment, life. Our original opinion dismissing the appeal is withdrawn and the following substituted in lieu thereof.

Appellant has furnished this Court with a supplemental transcript affirmatively showing that his notice of appeal was entered of record in the criminal minutes of the district court as required by Article 827, Vernon’s Ann.C.C.P. We will therefore now proceed to consider the case on its merits.

The evidence adduced in behalf of the State reflects that Mancil Smith on returning to his service station on the night in question noticed that the lights were out in the grease and wash rack and that two men, without his permission, were loading tires therefrom into a truck which had been driven into the station. A window on the side of the station had been broken; after gaining entry through this portal, the garage doors could be easily opened to allow entry of the truck. Smith then went to the police station and summoned Dispatcher Pitts, who returned to the building with him. As they appeared on the scene, Officer McGehee, who had been called by radio, arrived at the rear door of the station and observed the appellant pull the rear door down and run for the front door. Pitts and Smith, who had arrived at the front of the station, saw the appellant run through the station office and jump through the plate glass door, at which time he was apprehended.

Beside the station a truck was found containing some thirty Atlas tires.

Appellant, testifying in his own behalf, admitted that on his plea of guilty he had been convicted of offenses in 1956 and 1959 and had served his time on each. He further testified that while watching television on the night in question a boy had come by his mother’s house and offered him “about $50” to help him load some tires, that he had agreed and that the station was open and lighted when he had loaded the tires. He testified that he saw the officers drive up and had pushed on the front door and fallen through it.

The jury resolved the conflict in the testimony against appellant, and we find the evidence sufficient to sustain the conviction.

Appellant first contends that the trial court erred in failing to grant his motion to quash the indictment on the ground that the list of grand jurors selected by the jury commissioners showed an impossible date in that it stated that during the July Term, 1965, the commissioners selected the grand jurors who were to serve at the February Term of 1965.

The appellant’s bill of exception number one affirmatively shows that District Clerk Robinson made a clerical error in transcribing the list and that the sealed envelope filed January 14, 1965, whereupon were affixed the names of the jury commissioners contained the following writing: “The List of Grand Jurors selected at the July Term, 1964, for the February Term of 1965, of the District Court. * * * ” Viewed in this light we find no reversible error in the trial court’s refusal to grant the motion to quash.

The appellant next complains that the State was allowed to read the enhancement allegations of the indictment over his objection. The record does reflect that the State read the indictment; however, nowhere does the record reflect that appellant objected to the reading of the prior conviction alleged for enhancement or offered to stipulate thereto. Such contention is overruled. Taylor v. State, Tex.Cr.App., 398 S.W.2d 559.

The appellant next contends that the trial court erred in allowing evidence of appellant’s previous burglary convictions alleged for enhancement because there was no final conviction in either. The basis for such argument as we understand it is that each of the individual judgments of conviction in the causes were not signed by the trial court.

The record reflects that the trial court signed the judgments en masse by affixing to them the following certifications. In the first cause alleged for enhancement:

“The foregoing 38 entries examined and approved in open court, this 23 day of June, 1956.
Attest: Mrs. Elworth Robinson
Clerk, District Court, Kaufman County, Texas
A. A. Dawson
Judge, 86th Judicial District.”

In the second cause alleged for enhancement : '

“The foregoing 20 entries examined and approved in open court, this 1st day of February, 1960.
Attest: Mrs. Elworth Robinson
Clerk, District Court, Kaufman County, Texas
A. A. Dawson
Judge 86th Judicial District of Texas.”

It was shown by the testimony of District Clerk Robinson that the judgments in question were included within the above certifications. We find this authentication sufficient to make the judgment complete and final. It should also be noted that the appellant admitted that he had served the first prior conviction alleged.

We find no merit in appellant’s contention that reversible error is reflected in the argument of the prosecutor that the evidence showed that each time appellant got out of Huntsville, he got into further trouble.

In testing the sufficiency of the evidence to support the enhancement allegations, the record reveals that under the majority rule in Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383, the State failed to prove as alleged in the indictment that the second prior burglary conviction in 1959 was a conviction for an offense committed by appellant after his burglary conviction in 1956.

It is the majority rule that the date on or about which the offense is alleged in the indictment to have been committed in the 1959 conviction is not proof of the date of the offense. An indictment for burglary may be presented within five years, but not afterwards. Article 179, V.A.C.C.P. The writer has in Rogers v. State, supra, and later cases failed to agree with such holding, but the majority rule prevails, and this conviction under Article 63, Vernon’s Ann. P.C. cannot be upheld.

The judgment is therefore reformed under Article 62, V.A.P.C. to provide for appellant’s confinement in the Texas Department of Corrections for a period of twelve years. Hamilton v. State, Tex.Cr.App., 397 S.W.2d 225.

As reformed, the judgment is affirmed.


text:
    C. T. EWING, Appellant, v. The STATE of Texas, Appellee.
    No. 39265.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 20, 1966.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is burglary of a motor vehicle; the punishment, two years in the penitentiary.

The record reflects that James R. McClellan, a detective of the San Angelo Police Department, was in the vicinity of the Topper Club at about 11 p. m. on November 30, 1964 when he saw appellant leaning inside the open right door of an automobile parked outside the club. When McClellan approached the car, appellant turned around and the officer saw a portable radio in his hand. Officer McClellan further testified that the right front vent window of the automobile had been broken and the hole in it was large enough to accommodate a person’s arm. A yellow-handled screwdriver was found about three feet from the car, and appellant’s automobile was parked nearby, with the trunk open and the motor running. The trunk of appellant’s car was modified in such a manner that it could be opened and closed from inside the car.

Robert G. Harper testified that he worked for the Texas Highway Department, that he owned the automobile in which appellant was leaning when found by the policeman, and that he owned the radio appellant had in his possession when apprehended by the officer. The witness testified that he had parked his car outside the Topper Club at about 9:30 p. m. that evening, that he left it locked, and that the vent window was not broken at that time. He stated that he did not give appellant permission to enter his car or to take the radio.

Appellant did not testify or present evidence contrary to the facts set out above, which are sufficient to sustain his convic-' tion.

There are no formal bills of exception. Appellant objected to the court’s charge because it included no instruction as to the law of circumstantial evidence and also because it did not instruct that the failure of the defendant to testify could not be taken as a circumstance of his guilt. However, the charge contains instructions on both subjects. We note, however, that a charge on circumstantial evidence was not required under the facts presented. Hall v. State, 161 Tex.Cr.R. 460, 278 S.W.2d 297.

Finding no reversible error, the judgment is affirmed.


author: PER CURIAM. BELCHER, Commissioner.

text:
    Loy Gene BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39363.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Bobby L. Cummings, Gatesville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $100.

The record does not reflect that a notice of appeal was given and entered of record during the term of court at which conviction was had, as required by Art. 827 Vernon’s Ann.C.C.P.

In the absence thereof, this Court has no jurisdiction to entertain the appeal. The appeal is dismissed.

ON APPELLANT’S MOTION TO REINSTATE APPEAL

BELCHER, Commissioner.

By an affidavit of the County Clerk filed in this Court, the appellant seeks to show that he gave notice of appeal. The clerk’s affidavit recites that the trial court’s docket sheet reflects that the appellant gave notice of appeal in open court on August 26, 1965. This does not meet the requirements of Art. 827, C.C.P., which was in effect at the time, and the notation on the docket sheet is not sufficient to confer jurisdiction on this Court. Morales v. State, 171 Tex.Cr.R. 124, 345 S.W.2d 537; Oatman v. State, Tex.Cr.App., 383 S.W.2d 586.

The motion to reinstate the appeal is overruled.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Bobby Joe YEAGIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39282.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 20, 1966.
    Fred A. Carver, Joe R. Goodwin (on appeal only), Beaumont, for appellant.
    W. C. Lindsay, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery; the punishment, 10 years.

The indictment alleged that appellant and two others “did unlawfully make an assault in and upon the person of Doris Grisham, and then and there by said assault and by violence to the said Doris Grisham, and by putting the said Doris Grisham in fear of life and bodily injury and then and there by using and exhibiting a firearm, to-wit, a pistol,” did take from her person and possession without her consent Forty-Six Dollars current money of the United States with intent to deprive her of said property and to appropriate the same to their use and benefit.

After the jury had been selected and sworn to try the case, and after a portion of the indictment, including the firearms allegation, had been read to the jury, the assistant district attorney made an oral motion to dismiss the portion of the indictment that alleged firearms and elected to proceed to trial on the remaining portion.

The trial judge granted the state’s motion to dismiss “that portion of the indictment alleging robbery by firearms,” and “granted the election of the state to proceed to trial on the portion of the indictment that alleged simple robbery by assault and robbery by violence and robbery by putting in fear.”

The trial court then instructed the jury to disregard the reading of the indictment which had theretofore taken place and directed the state to re-read the indictment omitting therefrom the words “and then and there by using and exhibiting a firearm, to-wit, a pistol.”

The indictment, omitting the allegation as to firearms, being read to the jury, appellant chose not to enter a plea and the court entered a plea of not guilty for him.

The evidence offered by the state was to the effect that at about 10 P.M. appellant and his co-indictee, Charles Kervin Lowe, entered a drive-in grocery in Houston of which Doris Grisham was in sole charge. Lowe had a scarf over his face and a shotgun in his hand. Appellant had a white stocking over his face with eye holes cut out and had a knife. The two men ordered Doris Grisham into the storeroom and appellant took $46.00 in money out of the cash register.

Appellant’s confession was found by the trial judge to have been voluntarily made and was admitted in evidence.

At the conclusion of the evidence, the trial judge submitted the case to the jury as a robbery by assault case, with no reference to firearms. The jury found appellant guilty as charged in the indictment and assessed his punishment at 10 years confinement in the penitentiary.

Appellant’s first and most serious ground for reversal relates to the oral granting of the state’s oral motion to dismiss the portion of the indictment alleging the “using and exhibiting of firearms, to-wit a pistol.”

The formal bill of exception as qualified, in addition to the facts stated, reflects that the assistant district attorney in his voir dire examination of the jury panel stated that this was to be a trial of the defendant on a charge of robbery by firearms, to-wit, a shotgun and by the use of a knife; that the attorney for the state at no point in the voir dire examination stated that he would not seek the death penalty; that no effort was made to qualify the individual jurors as to the death penalty, and that each side exercised IS peremptory challenges (the maximum number allowed in capital cases).

Appellant contends that there was no effective dismissal of the portion of the indictment alleging the use of a pistol because of the absence of any written motion and of any entry in the court’s minutes or recital in the judgment reflecting the court’s consent.

He relies upon Ex parte Traxler, 147 Tex.Cr.R. 661, 184 S.W.2d 286; Woods v. State, Tex.Cr.App., 211 S.W.2d 210; and Malley v. State, 125 Tex.Cr.R. 265, 69 S.W.2d 765.

Appellant’s formal bill of exception certifies that the motions were made and were granted by the court and that the indictment as read to the jury, to which a plea of not guilty was entered for the defendant, contained no allegation as to the use of firearms.

Unlike Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538, where the indictment charged the offense of robbery only by an assault with a pistol, the indictment herein alleged all phases of the statute defining robbery and further alleged “and then and there by using and exhibiting a firearm, to-wit, a pistol.”

Even if the allegation as to the use of a pistol was not eliminated other than by the court’s failure to submit robbery with firearms, proof that a shotgun and knife and not a pistol were used in the robbery would not constitute a fatal variance under the holdings of this court in Wiggington v. State, 153 Tex.Cr.R. 574, 223 S.W.2d 232; Gonzales v. State, 88 Tex.Cr.R. 248, 226 S.W. 405; Weaver v. State, 52 Tex.Cr.R. 11, 105 S.W. 189.

Appellant’s remaining claim of error is the failure of the trial court to charge the jury on the voluntary nature of the confession.

Appellant did not testify and offered no evidence before the jury raising an issue as to the voluntariness of the confession. The trial court heard the evidence and found the confession to have been voluntarily made, in accordance with the statute in effect at the time. The sufficiency of the evidence to support his findings is not challenged.

The trial court did not err in failing to submit the issue of voluntariness to the jury, there being no evidence before the jury raising such issue. 1 Branch’s Ann.P.C. 2d Ed., Sec. 88.1, p. 96; Anderson v. State, Tex.Cr.App., 391 S.W.2d 732.

Washington v. State, Tex.Cr.App., 388 S.W.2d 200, is distinguishable upon the facts.

The judgment and sentence recite that appellant was adjudged guilty of Robbery by Firearms. Both are reformed so as to conform to the jury’s verdict and the court’s charge and to read “Robbery” instead of “Robbery by Firearms.”

As reformed, the judgment is affirmed'.


text:
    Johnnie SHAKOUR, Appellant, v. The STATE of Texas, Appellee.
    No. 39118.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 20, 1966.

      John W. L. Hicks, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F, Dally, James C. Brough and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The appeal is from a conviction for violation of the Texas Regulatory Loan Act (Art. 6165b Vernon’s Ann.C.S.) Section 5(a) of which provides in part that no person shall, without first obtaining a license from the Regulatory Loan Commis-ioner of the State of Texas (created by the act) “engage in the business of making loans with cash advances of One Thousand Five Hundred Dollars ($1,500) or less, and contract for, charge or receive, directly or indirectly, on or in connection with any such loan, any charges, whether for interest, compensation, consideration or expense or other thing or otherwise, which in the aggregate are greater than such person would be permitted by law to charge if he were not a licensee under this Act.”

Trial was before the court on a plea of not guilty. Appellant was found guilty and assessed a fine of $500, such being the minimum punishment provided for the violation of Section 5(a) of the Act.

The complaint and information alleged that on or about July 16, 1964, appellant did without first obtaining a license from the Regulatory Loan Commissioner unlawfully engage in the business of making loans by loaning and advancing $50.00 to Claud Williams and in connection with such loan contracting for charges which in the aggregate were greater than ten per cent (10%) per annum of the amount of the loan.

The state’s evidence shows that appellant, known to the witnesses as Johnnie Green, was engaged in the business of making small loans.

On July 29, 1964, he had 401 loan accounts upon which he placed a value of $23,000.00.

One of the loan accounts was that of Claud Williams in the amount of $69.00.

Williams testified that he had made loans from appellant for three or four years; that on July 16, 1964, he borrowed $50.00 from him, $69.00 to be repaid in September; that he paid the $69.00 and received a $5.00 refund from appellant.

The state’s evidence further shows that appellant had never obtained or applied for a Regulatory Loan License. It was not shown that he was exempt or ineligible under Section 6 thereof.

The maximum legal interest which can be charged by a person who is not licensed under the Regulatory Loan Act is ten per cent per annum. Art. 16, Section 11, Constitution of Texas, Vernon’s Ann.St.

One licensed under the act may charge as much as $19.00 interest on a $50.00 loan for a four month period. Whether such a charge by a licensee is excessive or exorbitant is for the legislature. One not a licensee or borrower has no standing to complain that only a licensee may charge more than ten per cent per an-num.

Appellant’s claims of error are all predicated upon the contention that the Texas Regulatory Loan Act and various sections thereof are invalid in that they violate the due process clause of the Constitution of the United States and the Constitution of this state.

The Texas Constitution, Art. 16, Sec. 11, prior to its amendment in 1891 provided that by contract the parties might agree upon any rate of interest not to exceed 12 per cent per annum, all interest in excess being usurious, and the legislature was directed to provide pains and penalties to prevent and punish usury.

Section 11 of Article 16 of the Constitution of Texas was amended in 1891 so as to provide that all contracts for a greater rate of interest than 10 per cent per an-num should be deemed usurious, and the legislature was again directed to provide appropriate pains and penalties to prevent the same.

Section 11, of said Article 16 of the Constitution of Texas, was amended in 1960 and now provides:

“The Legislature shall have authority to classify loans and lenders, license and regulate lenders, define interest and fix maximum rates of interest; provided, however, in the absence of legislation fixing maximum rates of interest all contracts for a greater rate of interest than ten per centum (10%) per annum shall be deemed usurious; provided, further, that in contracts where no rate of interest is agreed upon, the rate shall not exceed six per centum (6%) per annum. Should any regulatory agency, acting under the provisions of this Section, cancel or refuse to grant any permit under any law passed by the Legislature; then such applicant or holder shall have the right of appeal to the courts and granted a trial de novo as that term is used in appealing from the justice of peace court to the county court.”

This Section furnished ample authority for the enactment of the Texas Regulatory Loan Act, including the penal provisions of Section 5 thereof applicable to persons other than licensees.

The undisputed evidence shows that appellant, who was not a licensee, in violation of such act engaged in the business of making loans and made the loan as alleged in the information contracting for an interest rate greater than ten per cent per annum.

The provisions of the Act are severable. Section 31 provides:

“If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.”

One of the provisions of the act was set aside without disturbing the remainder of the act by reason of the severability clause in Miskell v. Termplan Inc., Tex.Civ.App., 381 S.W.2d 129.

Other provisions were considered in Parker v. State, 383 S.W.2d 869, wherein the Court of Civil Appeals concluded that the Texas Regulatory Loan Act is broad enough to apply to one not a licensee performing within its scope.

Appellant did not attempt to avail himself of the provisions of the statute so as to permit his being classified, licensed and authorized to contract for a rate of interest in excess of ten per cent per an-num. He is in no position to complain of portions of the statute which affect only those who do apply and those who are licensed.

We do not deem it necessary for this court to pass upon appellant’s attack upon various requirements for obtaining a license under the Texas Regulatory Loan Act. Such questions are for the courts having jurisdiction in civil cases which, under the provisions of Art, 16, Sec. 11 of the Constitution of Texas, may be invoked by appeal from a denial of an application or from a cancellation of the permit of a licensee.

We hold that as applied to a person other than a licensee thereunder, the penal provisions of Section 5 of the Texas Regulatory Loan Act making it an offense for anyone other than a licensee to engage in the business of making loans of $1,500 or less and to contract for, charge or receive interest at a rate in excess of ten per cent per annum, are not invalid.

We note, however, that the Texas Regulatory Loan Act does not deprive appellant of the right to engage in the lawful business of making loans at interest rates not exceeding ten per cent per annum, the maximum interest allowed under the constitution in the absence of a statute such as authorized by Art. 16, Sec. 11.

The judgment is affirmed.


text:
    Tom Victor MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 39208.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.
    Rehearing Denied April 20, 1966.

      J. E. Jackson, Fred Whitaker, Carthage, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape; the punishment, twenty years.

This case was reversed on a former appeal. Martin v. State, Tex.Cr.App., 385 S.W.2d 260.

The prosecutrix, age 15, on the day charged in the indictment, testified that the appellant, her father, had played with her breasts and private parts, and told her that all girls after age thirteen did that” with their father; that he also told her that if she did not believe it to read Genesis 19:30-38, and she identified her father’s Bible and the place it was marked in Genesis; that while she and her father were alone at home on April 30, 1963, he, for the first time placed his private parts. into her private parts, and again had intercourse with her in October, 1963; that she had never been married, and had never had intercourse with any man except her father, and that appellant was the father of her baby born January 21, 1964.

The appellant made and signed a written statement, which, omitting the formal parts, reads in part as follows:

“My name is Tom Victor Martin and I am 49 years of age. * * * Sometimes around the last of April, 1963, I was at home with my daughter Vickey Martin, I had been drinking pretty heavy, and I started playing with her private parts, then I took my private part out and I put it in her private part. * * * The last time I had anything to do with her like that was several days before I went to Canada which was about the 12th of October, 1963. I was drinking then. I am very sorry for what I have done.”

The appellant testified that while he was working in Canada in November, 1963, he received a telephone call from his wife, telling him that his daughter Vickie was pregnant; that he then talked to Vickie and asked her if she had lost her mind, and that he told her to get things straightened out; that he returned to Shreveport, which is about thirty miles from his home, in a company truck; that he did not commit the act charged but related facts and circumstances which revealed that his daughter could have been keeping company with a married man; and he offered witnesses whose testimony revealed opportunities for such association with another man. Appellant admitted that his signature appeared on the written statement, but that its contents relating to the prosecutrix were not true, and he signed the statement because he thought the district attorney could and would help him.

After a hearing was held in the absence of the jury on the voluntary nature of appellant’s written statement, the trial court made an independent finding that said statement was voluntarily made.

It is contended that the court erred in admitting evidence of extraneous crimes.

Both prior and subsequent acts of fondling and intercourse may be introduced in a statutory rape case. Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147; Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366; Smith v. State, 170 Tex.Cr.R. 518, 342 S.W.2d 445.

Error is urged because the jury discussed during their deliberation that appellant had been given a lie detector test and had probably failed it.

On the hearing on the motion for new trial no juror testified that the appellant was in fact given a lie detector test, and when it was mentioned some jurors stated that there was no evidence of a test and that they did not know. In the absence of any proof of a test or that such a test was considered, no error is presented.

Appellant contends that the jury committed reversible error in reading and considering that portion of the Bible which the prosecutrix testified that appellant told her was authority for her acts with him and referred her to those parts he had marked in Genesis 19:30-38. The Bible with the verses marked was identified by the prose-cutrix, but neither the verses nor the Bible were offered in evidence. No motion was made to instruct the jury not to consider them. Even though the verses were read from another Bible in the jury room, this matter in light of the record does not call for a reversal.

Reversal is urged on the ground that the jury discussed and considered the parole law. The jury did discuss the parole law and that a prisoner would usually become eligible for parole. No juror knew the provisions of the parole law and no one undertook to state them. No assertions of fact were made except there was a parole law which would under a good record by the appellant be applicable to him. No error is presented. Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929.

Complaint is made to the admission of the testimony of Dr. Smith that he delivered the baby of the prosecutrix which was born January 21, 1964, over appellant’s objection that it was repetition, inflammatory, and prejudicial. Dr. Smith also testified that if the infant was conceived in April, 1963, it would be a full term or near term baby. He further testified that the baby he delivered was normal “and was at or near term” baby. This offense is alleged to have been committed in April, 1963. The admission of the testimony was not error.

It is contended that reversible error was committed when the jury, during its deliberation, discussed and considered the punishment of life assessed the appellant on a former trial, and in considering the punishment assessed another man on a plea of guilty for rape on his minor daughter in Panola County in spring of 1964, and also considered the penalty given another man tried for the same offense in Panola County in spring of 1964. The punishment assessed the other two men for similar offenses is not shown.

The appellant called four jurors and the state called three. No reasons appear for the failure of either side to call the other five.

The testimony does not reveal that any juror or jurors considered or determined the punishment assessed the appellant in this case in the light of his former punishment or that of the other two men convicted in Panola County.

In the amended motion for new trial, reversal is sought on the grounds that appellant’s request for counsel was denied, that he was not advised of his right to counsel or his right to remain silent, or his right to an examining trial.

The record reveals that the appellant, age 49, went to Canada in October, 1963, where he was employed in an oil field; that on November 22, 1963, his wife by telephone told him that the prosecutrix was pregnant, that he was the cause, and she also told him that, “You better not come home”; that about December 5 or 6, 1963, he left Canada in his employer’s truck and arrived in Shreveport about 7 or 8 p. m., December 7, where his employer had an office; that he registered at a hotel under an assumed name. The next morning appellant telephoned his wife at his home in DeBerry, Texas, which is thirty miles from Shreveport but no one answered. Next, he called a friend in Shreveport, and then by telephone talked with his sister who lived near his home.

After one day in Shreveport, appellant telephoned Sheriff Spradley in Carthage about 3 p. m., and asked if he had a warrant for him and told Spradley where he was. The appellant testified that he voluntarily signed a waiver of extradition in Shreveport, and in custody of Deputy Sheriffs Poss and Henigan they arrived at the jail in Carthage about 6:30 p. m., December 9, 1963. The next morning about 9 a. m., the appellant was taken to the office of the district attorney where they talked about fifteen minutes and he was returned to jail. The appellant having agreed to take a lie detector test was taken to Dallas where he remained over night and was returned to Carthage the next day, arriving about 3 p. m. The appellant was taken to the office of the Justice of the Peace, W. D. Bush, about 4 p. m., where in the presence of Bush and Deputy Sheriff Poss, the district attorney gave the appellant the statutory warning pertaining to any written statement that he made; and Justice Bush identified a written statement which he testified was read to the appellant who then signed it in his presence, after he had told him he did not have to sign it.

The appellant testified that while in custody he asked to talk with an attorney but the officer refused to call or allow him to call an attorney, and he was not at any time advised of his right to counsel. On examination by the state the appellant admitted that he never asked or was refused the use of a telephone.

The testimony of the state reveals that the appellant never requested at any time to see an attorney and there is no evidence that an attorney was denied the right to see him; and he was never denied the use of the telephone.

From the time the appellant left Canada about December 5 or 6, and during the time he telephoned his friend and his sister while in Shreveport, and before telephoning Sheriff Spradley telling him where he was and then signing a waiver of extradition, he was aware of what he would be facing in Carthage and was free to seek any aid or advice he wanted before going to Carthage in custody of the sheriff whom he had voluntarily telephoned.

The issue of the voluntary nature of the written statement was properly submitted to the jury.

The other contentions presented have been considered and they do not reveal error.

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

Opinion approved by the Court.


text:
    Ex parte Sidney H. BIDDIX.
    No. 39494.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    No Attorney of Record on Appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Wisconsin, where he stands convicted of the offense of felony theft and sentenced to an indeterminate term of not more than two years in Wisconsin State Prison, probation having been granted and revoked.

The Executive Warrant of the Governor of Texas, the Requisition of the Governor of Wisconsin and supporting documents were offered in evidence at the hearing and are deemed sufficient to support the judgment remanding appellant to custody to be delivered to the agent of the State of Wisconsin.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Eddie WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39214.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1966.
    Rehearing Denied April 20, 1966.

      No Attorney of Record on Appeal, for appellant.
    Henry Wade, Dist. Atty., James H. Miller, James B. Zimmermann and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, fifty years.

The state’s evidence was undisputed that the deceased was killed by a bullet fired from a 30.06 rifle in the hands of appellant. The killing occurred in the city of Dallas in the vicinity of the intersection of Sanger and Ervay Streets. Witnesses to the killing testified that shortly before 10 p. m. on the night in question the appellant was seen standing behind a telephone pole in front of a liquor store, with the rifle in his hand. At such time he was looking across the street where three people, one of whom was the deceased, were arguing. Appellant walked across the street to where the three were standing and proceeded to put the rifle in the deceased’s side. The deceased started backing toward the street, with his hands in the air, and appellant followed and punched him in the side with the rifle. As the deceased was backing with his hands in the air, appellant said “ ‘If you scratch, I’ll kill you,’ ” to which the deceased replied “ T ain’t got nothing, man.’ ” After the deceased had backed into the street, the fatal shot was fired and the deceased fell to the ground.

Appellant was taken into custody at the scene by two city detectives who were in the vicinity at the time. They also took possession of the rifle, which at the time contained one spent shell and two live cartridges in the magazine.

Testifying as a witness in his own behalf, appellant related that, prior to the shooting on the day in question, he and the deceased, who was his third cousin, had been together, drinking. There had been an argument between them over a knife and some cigarettes which were missing from his apartment. Appellant stated that after the argument he left his apartment with his rifle and went to the street intersection near the the liquor store, where he saw the deceased and another cousin, Lee Allan Buster, coming up the street. Appellant then stood by the telephone pole and told Lee Allen to take a pistol out of the deceased’s pocket. After Lee Allen took an object out of the deceased’s pocket the deceased walked out in the street and appellant motioned to him with the rifle to go on. Appellant stated that when the deceased walked up to his right the barrel of the rifle hit the asphalt and the deceased fell. Appellant swore that he did not pull the trigger intentionally and that he did not intend to fire at the deceased.

The court submitted to the jury the issue of appellant’s guilt of murder with and without malice, aggravated and simple assault, and also submitted the defense of accident.

The jury by their verdict rejected appellant’s explanation of the killing, and we find the evidence sufficient to sustain the judgment of conviction.

The record contains no formal bills of exception and there were no objections to the court’s charge.

In his second amended motion for new trial, appellant’s sole complaint was that the court erred in permitting the state to show that there was blood on the rifle from which the fatal shot was fired.

The record reflects that after appellant had testified that he was at least fifteen or twenty feet from the deceased when the shot was fired, the state recalled Dr. Earl Forrest Rose, the Dallas County medical examiner who performed the autopsy upon the deceased and who gave a further description of the wound on the deceased. He described the same as a loose contact type of wound where the muzzle of the gun was in loose contact up to a half inch from the skin.

Chemist Louie Anderson, of the Dallas County -criminal investigation laboratory, was then called and testified that he ran a test on certain foreign material on the front portion of the barrel of the rifle and determined that it was blood. The chemist testified that he was unable to determine whether it was human blood because the stain was too old at the time the test was made.

Appellant objected to the chemist’s testimony on the ground that it had not been shown that it was the deceased’s blood on the rifle and was therefore immaterial and prejudicial.

We perceive no error in permitting the state to make such proof.

The rifle used by appellant in the killing was introduced in evidence without any objection from appellant.

There was a conflict in the testimony as to whether the deceased was shot from close range or from a distance. Witnesses for the state swore that just before the shot was fired appellant was pushing the deceased with the barrel of the rifle. This was in conflict with appellant’s testimony that when the shot was fired he was between fifteen and twenty feet from the deceased.

Proof that there was blood on the rifle would tend to shed light on the conflict in the testimony as to where the rifle was located when the fatal shot was fired.

The judgment is affirmed.

Opinion approved by the court.


text:
    Aubrey McGee GAINES, Appellant, v. The STATE of Texas, Appellee.
    No. 39378.
    Court of Criminal Appeals of Texas.
    April 6, 1966.
    Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harryette Ber-cu, Curtis D. Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault to murder with malice; the punishment, 10 years confinement in the Texas Department of Corrections.

The evidence reveals that appellant and Juanita Dodson lived together for about one year, and that this relationship was terminated on December 26,1964, when the witness Dodson left appellant and moved into the residence of Mabel Choice, the complaining witness. At about 11:30 on February 21, 1965, appellant knocked on the door of that house and told Mrs. Choice that he would like to see his “old lady,”- and was told that they were all going to bed and did not want to be disturbed. This brief exchange was conducted with the door open only to the extent allowed by the safety latch with which the door had been secured. Mrs. Choice shut the door without further conversation and, as she did so, she heard a shot, and a bullet tore through the door, going through the living room, where at least two children slept, then into the kitchen, where it struck the kitchen wall. Mrs. Choice testified that, “If I had of been standing in front of the door, it would have went through my head.” Three more shots were fired in rapid succession, one going through the door and striking the door facing, another lodging in the bottom of the screen door, and the fourth bullet striking the ceiling of the porch.

Donita Dodson, daughter of Juanita Dodson, testified that after appellant fired the four shots, she peeked out the window and saw him running toward a white car. She also testified that appellant had been to the house on an earlier occasion wanting to see the witness’ mother, but that she had told him that her mother did not feel like being bothered, and appellant left in a blue truck.

Appellant’s testimony was the only evidence offered in his behalf, and his version of the transaction was that he had a pistol in his back pocket when he came to the house the second time, and that after he was told that Juanita Dodson did not want to see him, he related, “It was kind of cool right then so I stuck my hands in my back pockets to keep them warm and the gun went off.” It was his contention that he did not intend to.shoot anyone. On cross-examination he testified without objection that he had received a suspended sentence for burglary in 1953.

The evidence is sufficient to support the conviction for assault with intent to murder with malice. Rodriguez v. State, Tex.Cr.App., 375 S.W.2d 289; Escobar v. State, 162 Tex.Cr.R. 115, 282 S.W.2d 873. Appellant’s motion for new trial based on insufficiency of the evidence was properly overruled.

It is contended that the trial court committed reversible error in not granting appellant’s motion for a mistrial after the state introduced evidence of what appellant contends was an extraneous offense. After showing that Juanita Dodson had been in the hospital several days before the shooting, and that appellant had visited her, the following testimony was elicited:

Q: “Do you recall one time in particular when he had something with him?”
A: “Yes.”
Q: “What was it that he had with him?”
A: “Some kind of a gun, I don’t know what kind it was.”
(Counsel for appellant): “Now your Honor, I’m going to have to object here. This is certainly prejudicial.”
(Counsel for the state): “It goes to show the circumstances surrounding the shooting.”
THE COURT: “Sustain the objection and instruct the Jury to disregard it.”
(Counsel for appellant): “And further we move for mistrial.”
THE COURT: “Overrule your motion.”
(Counsel for appellant): “Note our exception.”
THE COURT: “But, the Court will instruct the Jury to disregard . it.”

The careful trial judge excluded the testimony and twice admonished the jury that it would not he considered, and any error which may have been committed was cured by this action. We find no error in the court’s refusal to'grant a mistrial.

The judgment is affirmed.


text:
    Tito SANDOVAL and Marvin Foster, Appellants, v. The STATE of Texas, Appellee (3 cases).
    Nos. 39175-39177.
    Court of Criminal Appeals of Texas.
    March 30, 1966.
    No attorney of record on appeal for appellants.
    James E. Barlow, Dist. Atty., Wm. J. Condon, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal by the sureties in a bond forfeiture case.

No brief for the appellants has been filed.

Appellee’s brief, filed prior to the submission of the appeal, points to Rules 414, 415 and 416, Rules of Civil Procedure, applicable in bond forfeiture cases under Art. 866 C.C.P., and prays that the judgment of the trial court be in all things affirmed, or in the alternative, that the appeal be dismissed for want of prosecution.

Rule 416 provides:

“When appellant has failed to file his brief as provided in the foregoing rules, the appellee may, prior to the call of the case, file his brief, which the court may in its discretion regard as a correct presentation of the case, and upon which it may, in its discretion, affirm the judgment of the court below without examining the record.”

Pursuant to said rule, the judgment is affirmed.


author: HUGHES, Justice.

text:
    COMMUNITY SAVINGS AND LOAN ASSOCIATION, Appellant, v. R. L. FISHER et ux., Appellees.
    No. 11369.
    Court of Civil Appeals of Texas. Austin.
    March 9, 1966.
    Rehearing Denied April 6, 1966.

      Raymond L. Kneese, Fredericksburg, Bryce A. Taylor, Burnet, for appellant.
    Harold G. Kennedy, Austin, for appellees.
   HUGHES, Justice.

This is a declaratory judgment case in which the principal question is whether a borrower who procures a 5% discount loan the note providing that “In the event of prepayment of the entire balance before maturity, the holder agrees to credit to said note all unearned interest * * * ” is charged with knowledge, as a matter of law, that “the sum of digit method” is the method by which the rate at which interest was earned is computed.

Appellees had no knowledge of this or any other method of computing interest or rebate of interest on a 5% discount loan.

Mr. Reuben Eckhardt, Treasurer of appellant, testified that the “sum of digits” method was the customary way of figuring interest rebates in his organization on discount loans.

The facts are these:

Mr. R. L. Fisher and wife, Barbara Ann Fisher, on June 23, 1960, procured a loan from Fredericksburg Savings and Loan Association, now the appellant, secured by a deed of trust lien on certain described realty. The note executed by the Fishers was in the principal sum of $10,800.00 payable in 120 installments of $90.00, without interest. The note recited, “The original net amount of this note is $7,200.00. The note also contained the provision that “In the event of prepayment of the entire balance before maturity, the holder agrees to credit to said note all unearned interest ⅜ ⅜

A loan settlement statement of the same date as the note, and furnished by appellant, recited, “Rate of Interest Disc — 5%.”

There is no dispute about the amount of money paid by appellees on the note. On September 18, 1964, they had paid on the note, principal and interest, the sum of $8,584.93. On such date appellees tendered to appellant the sum of $145.07 as payment in full of the balance due on such note, principal and interest, as of October 1, 1964, plus $75.00 prepayment fee, or a total of $220.07.

On this date, the loan had run for 51 months. Appellees calculated the interest paid on the note by taking the amount of interest earned on $7,200.00 for one month at 5%, $30.00, and multiplying this by 51, which is $1,530.00. This when added to the money actually received equals $8,730.00. The difference between this amount and the amount of payments made $8,584.93, is $145.07, which amount, appellees have tendered. The Trial Court accepted this calculation and has rendered judgment accordingly.

Appellant’s “sum of the digits” method is explained by Mr. Eckhardt as follows:

“This is a method whereby it closely resembles simple interest. In other words, when your loan balance is raised, higher percentage of interest is returned; as your principal decreases, interest decreases, and it is figured according to the number of years the loan has to run. Each number of years has a separate chart we go by.
* * * * * *
Q In the usual method of business operation in your organization, do you make use of any tables or other aids that are used in calculating such rebates when partial payments are made?
A Any other aids ?
Q Do you make use of any tables or any other previously calculated result?
A We use the standard tables on all these discount type loans.
Q You refer to a standard table. Is that a table that is prepared by your organization ?
A It is prepared by our organization from five years on up, and our so-called accounting guide, it just goes up to a period of five years, so we prepared these charts from five years on up.
On June 10, when this prepayment was made of $2500.00, our record showed balance on this loan was $7961.74. At this time, the loan had run a term of thirty-five months, so, looking at our chart showed that .50344 of the total discount had been earned up to this point. Of course, total discount was $3600.00. Multiplying this out would give us $1812.-38. This can be considered as being unearned discount up to this date. Subtracting this from his — what we call — gross balance, left us a net balance of $6149.36. His prepayment at this time was $2500.00. That left him a net amount due of $3649.36, and his monthly payments on this note for the full term, I believe, was $90.00. That is to be applied on the face of the note. Now, since he just had $3649.36 to be paid, net balance due, we had to refigure what term would be required at which $90.00 per month would repay this net amount, and we determined it to be four years, so we re-added, went through the same procedure as Mr. Kennedy went here, and gave him interest at discount for term of four years, which was $729.87, the discount for the term which would be remaining term to pay off this net amount here was our gross amount, see, $4379.23, so this amount would be paid off, if normal payments had been made and no other lump sum payments would have been made, it would take four years to pay off this loan at $90.00 per month.”

On cross examination Mr. Eckhardt testified:

“Q Now, your tables that you have drawn up to do this figuring by, isn’t it true that that basically figures out about 8.59, or 8.6 per cent on the unpaid balance.; isn’t that about what your tables would gear the thing to?
A .On the average, it would be eight and a half or nine per cent. Right.
Q And your position in your lawsuit is that you are entitled to, under your tables, about 8.5 or 9 per cent on the unpaid balance and not 5 per cent on the total amount; isn’t that what we are getting down to ?
A Well, we are entitled to more money when there is a bigger outstanding balance than where later on, when there is a small balance; we prorate the interest according to that table over the amount of outstanding indebtedness.
* * * * * *
Q Mr. Eckhardt, I will ask you to observe the note which has been offered in evidence. Do you observe anywhere on the face of that note a statement that this will be discounted according to the terms of any banking table or any other table on prepayment?
A No, sir, does not.”

The court elicited from Mr. Eckhardt this testimony:

“Mr. Eckhardt, on Plaintiffs’ Exhibit No. 3, at the top of the page this loan settlement statement, where it says ‘Rate of Interest,’ there follows the word ‘Disc — 5%.’ Will you explain to me what that means ?
A ‘Disc’ is provision for discount of 5%.
THE COURT: What does ‘discount at 5%’ mean?
A Well, I understand it to be, it is the interest for the term of the loan added to the face amount of the note. In other words, a ten year note at 5% discount would be fifty per cent as to the face of the note.
THE COURT: And as you understand it, that is the difference between a straight 5% loan and dis- •• count 5% loan?
A Yes, sir.”

The balance of principal due on the loan calculated under the “sum of digits” method is $874.09.

It is our opinion that the judgment of the trial court, consistent with appellees’ method of computing the amount of unearned interest on the note under facts, should be, and it is hereby, affirmed.

We believe that the amount of interest to be rebated should be calculated on the same basis as it was calculated at the inception of the loan. This method, as the facts conclusively show, was that 5% per year on the total amount of money advanced, $7200.00, for the full loan period, 10 years, was calculated and the amount, $3600.00, was added to the face of the note, $10,800.00. This demonstrates that the interest was calculated on the basis of $360.00 per year and, in our opinion, it should be rebated on the same basis.

Appellant’s contention that the interest earned and unearned should be calculated on a scale proportioned to the amount of unpaid principal is not, remotely, within the contemplation of the parties as evidenced by the terms of their agreement.

We hold, under this record, that the “sum of digits” method of calculating rebate of unearned interest under a discount loan is not so commonly known or understood that appellees were, as a matter of law, charged with knowledge of it or bound by it.

Appellant argues that the judgment of the trial court would result in rendering the note usurious in the last year. However this may be, appellant cannot take advantage of it for the reason that the defense of usury is personal to the borrower.

Appellant also contends that if interest earned is not to he computed by the method it advocates and is to be calculated on the basis of 5% annually of the principal of the note, that the principal of the note should be taken to be $10,800.00 and not $7,200.00.

We overrule this contention. The face of the note was $10,800.00, but the interest bearing principal of the note was $7,200.00, the amount of cash advanced to the borrower. The $3,600.00 added to the face of the note was interest, not principal.

The judgment of the trial court is affirmed.

Affirmed.


author: COLEMAN, Justice.

text:
    Milton DENTON, Appellant, v. YELLOW CAB COMPANY, Inc., et al., Appellees.
    No. 14702.
    Court of Civil Appeals of Texas. Houston.
    March 17, 1966.
    Rehearing Denied April 7, 1966.
    James B. Turner, Jerome Pope, Houston, for appellant.
    Banister, Boswell & O’Toole, John R. Banister, III, Houston, for appellee.
   COLEMAN, Justice.

This case resulted from an automobile collision which happened on the Gulf Freeway in Houston, Texas. Judgment was entered for the defendant on a jury verdict finding the plaintiff guilty of contributory negligence in failing to keep a proper lookout.

Appellant’s only point of error is a “no evidence” point, i.e., that the trial court erred in submitting the issues concerning appellant’s lookout to the jury. McDonald v. New York Central Mutual Fire Insurance Company, Tex.Sup., 380 S.W.2d 545. Only that evidence tending to establish a duty to keep a lookout on the part of appellant, and a failure on his part to keep such a lookout as should have been kept under the circumstances, can be considered by this Court. Moore Van & Storage, Inc., v. Yellow Manufacturing Acceptance Corporation, Tex.Civ.App., 365 S.W.2d 229; Sartain v. Southern National Life Insurance Company, Tex.Civ.App., 364 S.W.2d 245, ref., n.r.e.

The Gulf Freeway at the point of this accident is a six-lane divided highway with overpasses at intersecting streets. The minimum speed limit is forty miles per hour and the maximum fifty miles per hour. Appellee was driving her taxi in the middle lane of the Freeway toward Houston. Appellant was driving a small Renault sedan in the outside lane. As these vehicles neared the top of the overpass, a Plymouth car traveling in the inside lane some twenty to twenty-five feet ahead of the Renault veered into the middle lane. The taxi driver glanced to the right and saw no car in the outside lane. She immediately hit her brakes and simultaneously pulled to the right. Each lane is twelve feet in width. When the taxi had crossed into the outside lane of traffic about two feet, it hit the Renault on the left door about the middle of the car, causing it to overturn. The taxi stopped some five or six feet from the point of impact. Both cars had been traveling 45 to 50 miles per hour. The traffic was moderate to heavy.

Appellant testified that he saw the Plymouth as it veered into the middle lane when he was twenty to twenty-five feet behind. Two other cars were in the center lane, but they apparently drove on because he did not see them after the collision. He could not describe them. When he saw the Plymouth “stop or something”, he "“went right straight on” because the traffic was moving and was pretty busy “and that’s when it happened.” He testified he did not see the taxi until “just as it hit me.”

This brief résumé of the testimony supports the jury’s findings on the issues in question. Appellant contends that he was under no duty to keep a lookout to the rear. Appellee’s testimony that she was “a car length or two” behind the Plymouth when it blocked her lane of traffic is consistent with that of appellant that he was 20 to 25 feet behind the Plymouth when he noticed its erratic movement. Neither this testimony, nor the fact that the right front fender of the taxi struck the Renault at about the driver’s door on the left side, establishes that the taxi was traveling to the rear of the Renault immediately prior to the accident. The fact that the driver of the taxi made an emergency application of the brakes while traveling some 50 miles per hour at the time she turned to the right, and stopped six feet from the point of impact, suggests, if, indeed, it does not establish, that she was in front of the Renault immediately prior to the application of the brakes.

Under the circumstances established by the evidence in this case, appellant had the duty to keep a proper lookout for vehicles to the front and left side of his vehicle. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Herb MEYER, aka Herbert Meyer dba Classic Motors, Appellant, v. Jim HENERY, dba Jim Henery Body Shop, Appellee.
    No. 11373.
    Court of Civil Appeals of Texas. Austin.
    March 9, 1966.
    Byron Lockhart, Austin, for appellant.
    Baker & Watkins, Thomas H. Watkins, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from the action of the judge of the County Court at Law No. 2 of Travis County, Texas, in disregarding the demand for a jury trial, and in- rendering a default judgment.

The appellant was the defendant in a civil action in the court and had seasonably demanded a jury and had paid the jury fee, and had not waived a trial with a jury.

The trial judge without hearing evidence and on the basis of the pleadings rendered judgment for the plaintiff for $198.93, $68.93 the amount of a check and $130.00 as attorney’s fee.

The judgment recited that the verified pleadings of the plaintiff were considered, and that there were no verified pleadings by defendant, and that all parties waived demand for a jury.

Appellant in his motion to set aside and vacate the judgment, alleged the demand for and payment of a jury fee and that such jury demand had not been waived. This motion was overruled.

The court erred in disregarding the demand for a jury trial, and was without authority to enter the judgment.

The right of trial by jury is guaranteed by the Texas Constitution, Sec. 15, Art. 1, Vernon’s Ann.St. Rule 216, Texas Rules of Civil Procedure. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428; Barker v. Kidd, Tex.Civ.App., 357 S.W.2d 490, n. w. h.; Sec. 17.9, Appellate Procedure in Texas.

The judgment of the trial court is reversed and the cause remanded.

HUGHES, Justice

(concurring).

This appeal purports to be a sixty day appeal as well as an appeal by writ of error under Arts. 2249, 2249a and 2255, Vernon’s Ann.Tex.Civ.St., and applicable rules of civil procedure.

I do not determine the validity of the sixty day appeal for the reason that, in my opinion, the case is properly before us by writ of error.

The only objection which appellee makes to the writ of error appeal is that appellant is precluded by Art. 2249a from resorting to this method of appeal because he participated in the actual trial of the case in the trial court.

It is true that appellant did participate in the trial in the justice court. He did not, however, participate in the trial in the county court to which the justice court case was appealed. It is on these facts that appellee would apply Art. 2249a. I disagree.

Trial in the county court on an appeal from a justice court is de novo. Rule 264, T.R.C.P. This means that the judgment rendered in the justice court is vacated and that in the county court the cause is tried anew. The county court, on such appeals, is in no sense an appellate court. It does not review the justice court trial, correct errors therein, nor may it affirm the judgment or remand the cause to the justice court. Hall v. McKee, 179 S.W.2d 590, Tex.Civ.App. Fort Worth.

It is, therefore, my opinion that the trial court within the purview of Art. 2249a is the court rendering the judgment from which the writ of error is sued out. Such court, in this case, was the county court. Since appellant did not participate in the county court trial, he is not precluded from appealing by writ of error.

Barker v. Kidd, by this Court, cited by the majority, holds that it is error to discharge a jury lawfully requested and try an issue of fact before the court even though the adverse party or his counsel, who requested the jury, fail to appear at the trial.

There was at least one issue of fact before the trial court — the amount of reasonable attorney’s fees. Smith v. Texas Co., 53 S.W.2d 774, Tex.Com. of Appeals; Tex.Jur.2d, Vol. 7, Attorneys at Law, Secs. 119 and 125.

Whether there are other questions of fact because of the state of the pleadings, I do not determine for the reason that in all likelihood neither the pleadings nor the evidence will remain unchanged.

I concur in the judgment reversing and remanding this cause.