author: WALKER, Justice.

text:
    HOME OF the HOLY INFANCY, Petitioner, v. William S. KASKA, Jr., Respondent.
    No. A-10705.
    Supreme Court of Texas.
    Nov. 3, 1965.
    Rehearing Denied Jan. 12, 1966.
    Sneed & Vine, J. P. Darrouzet, Austin, for petitioner.

      Coffee, Ritter & Goldston, Austin, for respondent.
   WALKER, Justice.

The question to be decided in this case is whether a father has custodial or other rights in his child conceived before the marriage of the parents and born after the annulment of such marriage. The suit was instituted by William S. Kaska, Jr., the father, against Home of the Holy Infancy, defendant, seeking custody of the child and other relief. Summary judgment for defendant was rendered by the trial court on the basis of the pleadings and certain admissions by the plaintiff. The Court of Civil Appeals reversed such judgment and remanded the cause to the district court. 387 S.W.2d 944.

All facts alleged in the petition as well as those admitted by plaintiff in response to a request for admissions can be accepted as true for the purpose of this appeal. As previously indicated, plaintiff is the father of the child in question. He and the mother were ceremonially married on June 13, 1963. The mother was pregnant with the child at that time, and was unmarried when the child was conceived. After living with plaintiff for about two weeks following their marriage, the expectant mother left him and sought an annulment of the marriage.

Plaintiff consented to the annulment because he thought the child would be legitimate and also because the mother assured him that he could have the child when it was born. Judgment annulling the marriage on grounds of fraud, duress and coercion was rendered on September 6,1963, and the child was born after the decree was entered. This judgment has now become final, and no attack is made thereon.

The mother disappeared after the annulment was granted, and it was some time before plaintiff was able to locate her. He persisted in his efforts and finally learned that she had placed the child for adoption with defendant, a duly licensed child placement agency, and that the child had been declared dependent and neglected under a fictitious name by the Juvenile Court of Travis County. Plaintiff had no notice of these proceedings, and the child was not, in fact, dependent and neglected. He discussed the matter with one of defendant’s officials, who admitted that she knew of plaintiff’s marriage to the child’s mother and the subsequent annulment thereof, told plaintiff that defendant placed the child with a good Catholic family for adoption two days after birth, and refused to give plaintiff any information that might enable him to identify or locate the child. Plaintiff has not consented to the adoption of the child.

The Court of Civil Appeals reasoned that the case is not ripe for summary judgment because it is not clear from the allegations of the petition whether defendant has custody of the child. According to the parties, that is not the controlling question in this appeal. As they construe the petition, the suit is an action for custody of the child and, in the alternative, for an equitable bill of discovery to determine its name and whereabouts. Defendant admits that it may have either the child or the information sought by plaintiff. The only ground urged in support of the summary judgment is that plaintiff has no rights in the child and therefore is not entitled to maintain this suit.

Plaintiff recognizes, and we think properly so, that he has no standing to sue unless the child was legitimated by the marriage of its parents which was subsequently annulled. Many courts hold that the father of an illegitimate child is entitled to custody and control as against all but the mother, provided he is suitable and the best interests of the child will be served thereby. See 10 Am.Jur.2d Bastards § 62; Annotation, 37 A.L.R.2d 882. These decisions must be considered, however, in the light of the statutory and case law of the particular jurisdiction. The statutes of California, for example, make both parents responsible for the support of an illegitimate child, and provide that the child will be legitimated if acknowledged by the father, received by the latter into his home and otherwise treated as a legitimate child. An award of custody to the father in that state is thus entirely consistent with his duty of support, and also conducive to legitimation under the statute. See Guardianship of Smith, 42 Cal.2d 91, 265 P.2d 888, 37 A.L.R.2d 867.

There are no similar statutes in Texas, and here a father is not under a common law or statutory duty to support his illegitimate child. See Lane v. Phillips, 69 Tex. 240, 6 S.W. 610; Beaver v. State, 96 Tex.Cr.Rep. 179, 256 S.W. 929, 30 A.L.R. 1073. The Legislature has expressly provided, moreover, that the father’s consent shall not be necessary for the adoption of an illegitimate child. Article 46a, Vernon’s Ann.Tex.Civ.Stat. There is an early decision. holding that the father has a prior right to letters of guardianship where the mother is deceased, Barela v. Roberts, 34 Tex. 554, but it is one thing to permit the father to assume the responsibilities imposed by law upon a guardian and an entirely different matter to recognize rights of custody when there is no corresponding duty to support. We adhere, therefore, to the common law rule that a father has, by virtue of the blood relationship alone, no rights in his illegitimate child. See Timmins v. Lacy, 30 Tex. 115; Cleaver v. Johnson, Tex.Civ.App., 212 S.W.2d 197 (no writ); Re M., [1955] 2 Q.B. 479, 51 A.L.R.2d 488. This brings us to the legitimation statute upon which plaintiff relies.

Section 42 of the Probate Code provides, in part, as follows:

“ * * * Where a man, having by a woman a child or children shall after-wards intermarry with such woman, such child or children shall thereby be legitimated and made capable of inheriting his estate. The issue also of marriages deemed null in law shall nevertheless be legitimate.”

The last sentence of Section 42 has no-direct bearing on this case, because plaintiff’s marriage was not one “deemed null in law” within the meaning of the statute. See Defferari v. Terry, 128 Tex. 521, 99 S.W.2d 290. Plaintiff contends that his child was legitimated by the first sentence quoted above, and consequently that he is entitled to maintain a suit for custody of or information concerning the child. There are a number of questions which must be resolved in determining whether that is the effect of the statute as applied to the facts of this case. The first question is whether Section 42 legitimates a child for all purposes or merely confers rights of inheritance.

The title of Section 42 as it appears in the Probate Code is “Inheritance Rights of Illegitimate Children,” but it has been pointed out that this heading is a misnomer in so far as the last two sentences of the' statute are concerned. See 8 Baylor Law Rev. 110. These provisions, which are quoted above, can be traced to Section 15 of a statute enacted by the Congress of the Republic in 1840. 2 Gammel’s Laws of Texas 306. The original statute dealt generally with descent and distribution, but Section 15 provided only for legitimation of illegitimate children and made no reference to rights of inheritance. It was not until 1848 that the words “and made capable of inheriting his estate” were added. 3 Gam-mel’s Laws of Texas 129.

There are differences in the legitimation statutes of the various states. Several provide that the child shall be deemed legitimate for all purposes from the time of birth. Even without this or some similar provision, most jurisdictions hold that the effect of the statute is to confer the status of a child conceived and born in lawful wedlock. See Allison v. Bryan, 21 Okl. 557, 97 P. 282, 18 L.R.A.,N.S., 931, and decisions there cited; 8 Baylor Law Rev. 110; I Speer, Marital Rights in Texas, 4th ed. 1961, § 132. “All the reciprocal responsibilities and duties of the parent-child relationship obtain between a father and his legitimated child.” 10 Am.Jur.2d Bastards § 57.

The basic provisions of our legitimation statute were borrowed from a Virginia statute upon the same subject. See James v. James, Tex.Civ.App., 253 S.W. 1112 (wr. ref.). The Supreme Court of Appeals of Virginia has held that a child legitimated by their statute enjoys the same legal relationship with the father as a legitimate child, and that the father of a child born to a marriage deemed null in law may therefore be given custody upon annulment of the marriage. Henderson v. Henderson, 187 Va. 121, 46 S.E.2d 10. In reaching these conclusions, the court said:

“The language of our statute is clear, sweeping and direct. There are no words of limitation or qualification. The issue of marriages decreed null in law, without regard to the grounds of nullity, are legitimated. They are consequently endowed with all the rights of legitimate issue for all purposes and in their relation with other persons. They are put on a par with children born in lawful wedlock. They inherit their father’s name, are his heirs apparent, and are entitled to look for and demand from him his care and protection. On the other hand, he has the right to their custody, control and maintenance to the same extent as if they were the issue of a valid marriage. * * *
“We have not construed section 5270 as solely a statute of inheritance. The precise question here raised has never before been presented to this court. It is true that section 5270 is found in the chapter of the Code, headed ‘Descents and Distributions.’ The section does relate to the right of inheritance; but that is only one of the rights it confers upon a legitimated child. It was not enacted for the purpose of relieving either parent of any legal or moral obligation to their child, but for the benefit of the child, and the child is entitled to all the benefits that flow therefrom. * * * ”

It has been held in this state that the father is entitled to custody of his child born to a putative marriage, and the Texas legitimation statute was cited in support of the holding. Templeton v. Walker, Tex.Civ.App., 179 S.W.2d 811 (wr. ref.). The question in James v. James, supra, was whether a legitimated child might inherit directly from the paternal grandparents. Speaking for'the Court of Civil Appeals at San Antonio, Justice Smith pointed out that it was clearly the intention of the Legislature to provide for full legitimation and concluded that upon the marriage of the parents their child previously born was “thereby legitimated for all purposes.”

To hold otherwise would do violence to the plain provisions of the statute. The first two sentences of Section 42 stipulate that “for the purpose of inheritance” and “for the purpose of determining homestead rights, the distribution of exempt property, and the making of family allowances,” an illegitimate child shall “be treated the same as if he were the legitimate child of his mother.” When the Legislature has expressed in such clear language its intention that an illegitimate child shall be treated as legitimate for certain limited purposes, the last two sentences obviously mean that the child shall be legitimated for all purposes when the specified conditions are satisfied. We hold that the legal, relationship between a father and his legitimated child is the same as that existing between a father and his legitimate child.

Another problem of statutory construction is presented by the fact that plaintiff married the mother before the birth of their child. By its terms Section 42 applies “[w]here a man, having by a woman a child or children shall afterwards intermarry with such woman.” It might be argued that legitimation occurs only when marriage follows the birth of the child, but this would leave a hiatus of several months in the statutory scheme. The Legislature could not have intended that result, and it is certainly true that the father is “having by a woman a child” during the period of gestation. In our opinion the statute operates whenever a valid marriage occurs after conception of the child. See Gravley v. Gravley, Tex.Civ.App., 353 S.W.2d 333 (wr. dis.). We now come to the last and most difficult question in the case.

Defendant insists that the statute has no application because the marriage was annulled. We generally think of an annulment as placing the parties in the same position as if they had never married. In Garcia v. Garcia, Tex.Civ.App., 232 S.W.2d 782 (no writ), the court stated that a suit for annulment presumes that there never was a valid marriage and that it should therefore be declared void. According to the New York Court of Appeals, it is the rule of the common law that children born of a voidable marriage which is subsequently annulled are illegitimate unless legitimated by statute. See Price v. Price, 124 N.Y. 589, 27 N.E. 383, 12 L.R.A. 359. The same court has also held that a child conceived and born out of lawful wedlock is not legitimated by the subsequent marriage of the parents which is later annulled for duress even though the New York statute declares that marriages procured by force shall be void from the time their nullity is declared. Re Gilbert, 235 N.Y. 390, 139 N.E. 550, 27 A.L.R. 1117.

In more recent and better reasoned cases, the courts have recognized that the doctrine of relation back is a legal fiction which must be utilized with some discrimination where the annulment of a marriage is involved. See Bass v. Ervin, 177 Miss. 46, 170 So. 673; Taylor v. Taylor, 249 Ala. 419, 31 So.2d 579; Succession of Barth, 178 La. 847, 152 So. 543, 91 A.L.R. 408. A child conceived and born during the existence of a voidable common law marriage has been held to be legitimate despite the annulment of the marriage. Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1. The court reasoned that:

“The annulment of the now existing voidable common-law marriage status cannot bastardize the child, Charlotte May Jones, who was born prior to any decree of annulment, since the judicial decree setting aside a merely voidable marriage status does not operate retrospectively as against the legitimacy of children born to the parties where such children would have been considered legitimate under the annulled voidable common-law marriage prior to any decree of dissolution of same, had such annulment decree never been rendered.”

The rule that an annulled marriage is void ab initio was also considered in Sefton v. Sefton, 45 Cal.2d 872, 291 P.2d 439, where the Supreme Court of California said;

* * * [T]he doctrine of ‘relation back’ [with respect to annulments of marriages] is not without its exceptions. The doctrine was fashioned by our courts to do substantial justice as between the parties to a voidable marriage. It is a mere legal fiction which has an appeal when used as a device for achieving that purpose. The test for determining the applicability of the doctrine as applied to voidable marriages is whether it effects a result which conforms to the sanctions of sound policy and justice as between the immediate parties thereto, their property rights acquired during that marriage and the rights of their offspring. * * *
“* * * [I]n cases involving the rights of third parties, courts have been especially wary lest the logical appeal of the fiction should obscure fundamental problems and lead to unjust or ill-advised results respecting a third party’s rights. Thus the exceptions to the theory of ‘relation back’ should have their typical application to situations affecting an innocent third party. * * Logic has long ago yielded to principle in the solution of the problem of determining the status of the children of annulled marriages. While a strict application of the doctrine of relation would reach back to deprive those children of their legitimate status, they are, of course, protected against the stain of illegitimacy not only where the marriage is voidable * * * but also where the marriage is totally void.”

The Florida statute provides that upon intermarriage of the parents their illegitimate child shall be deemed legitimate for all purposes, and the Supreme Court of that state has held that a child conceived and born out of wedlock was legitimated by the subsequent marriage even though the marriage was annulled about a year later. Re Ruff’s Estate, 159 Fla. 777, 32 So.2d 840, 175 A.L.R. 370. The court observed that the child was not made a party to the annulment suit, and that the marriage was not void but only voidable. It concluded that so far as the legitimacy of the child was concerned, the annulment decree was effective as of the time when entered and did not render the marriage void ab initio.

There are a number of considerations which persuade us to adopt the Florida rather than the New York approach to this problem. As pointed out in James v. James, supra, legitimation statutes are enacted for the humane purpose of abrogating the harsh rule of the common law and should be liberally construed to effectuate their obvious purpose. The law favors legitimacy, and it is the public policy of our state as declared by the Legislature that the legitimacy of children shall not be affected by the divorce of their parents and that the issue of some utterly void marriages shall nevertheless be legitimate. See Article 4639, Vernon’s Ann.Tex.Civ.Stat. The marriage in this case was not void but voidable. It was in all respects valid until set aside. If it had not been annulled, plaintiff’s child clearly would be legitimate. In our opinion the child should not be bastardized merely because the marriage was dissolved by annulment for antenuptial causes rather than by divorce for postnup-tial causes.

The annulment decree may relate back to the time of the marriage as between the parties to the former suit, but it will not be given that effect in determining the legitimacy of their child. On the basis of the facts now before us, we hold that the child is legitimate and that plaintiff is entitled to maintain the present suit. This does not mean that he is entitled to custody of the child, because that question can be determined only after all of the facts have been fully developed.

The judgment of the Court of Civil Appeals is affirmed.


source: Caselaw Access Project

author: HAMILTON, Justice. GREENHILL, Justice

license: Public Domain

text:
    Patricia Dean BOSWELL et al., Petitioners, v. W. B. HANDLEY et al., Respondents.
    No. A-10681.
    Supreme Court of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 12, 1966.

      Brooks, Tarlton, Wilson & Gilbert, Fort Worth, for petitioners Patricia Dean Boswell et al.
    Storey, Armstrong & Steger and Paul S. Adams, Jr., Dallas, for petitioner Republic National Bank of Dallas.
    Carter, Gallagher, Jones & Magee and Ben T. Warder, Jr., Dallas, for respondent W. B. Handley.
    Stigall & Maxfield and Snowden M. Leftwich, Jr., Dallas, for respondent Dean Memorial Children’s Home.
    Leachman, Gardere, Akin & Porter, Dallas, for respondent W. B. Dean.
   HAMILTON, Justice.

This is a suit for a declaratory judgment instituted by Patricia Dean Boswell, joined by her husband, Bruce L. Boswell, and John Henry Dean, III, against W. B. Handley, individually and as co-trustee of the testamentary trusts created under the will of Mrs. Carrie Slaughter Dean, deceased; W. B. Dean, individually and as successor co-trustee under such testamentary trusts; the Dean Memorial Children’s Home, a charitable corporation; the Attorney General of the State of Texas; and Republic National Bank of Dallas, as co-trustee under such testamentary trusts. Patricia Dean Boswell and John Henry Dean, III, are beneficiaries of the testamentary trusts created under the will of Carrie Slaughter Dean, their grandmother. In the suit for declaratory judgment the beneficiaries of the trusts seek a construction of the will of Mrs. Dean and a declaration of their rights under Section III thereof, referred to variously as the forfeiture or in terrorem clause, to determine that, in the event they file, or join in the filing of a suit to surcharge the former co-independent executors of said estate, Han-dley and Dean, for mishandling and waste of said estate during its period of administration, such suit by them would not result in a forfeiture of their rights as beneficiaries under such will.

The trial court granted petitioner Boswell’s motion for summary judgment. The Court of Civil Appeals reversed and remanded the case for a new trial. 386 S.W.2d 300. We affirm the judgment of the Court of Civil Appeals.

Respondents contend that the motion for summary judgment was improperly granted because there was no certified or verified copy of Mrs. Dean’s will and the order probating it upon which to give such relief.

The legal problem presented in this case arises because the petitioners did not attach to their pleadings, affidavits, or motions for summary judgment a certified or sworn copy of the last will and testament of Mrs. Carrie Slaughter Dean and of the order showing that said will had been duly probated. Petitioners did include in their un-sworn pleadings a purported copy of a will, known to all parties as “Exhibit A.” All of the defendants below answered with a general denial and with the exception of the Attorney General of Texas, incorporated various portions of the “will” into their answers. The Dean Memorial Children’s Home asked for affirmative relief by way of a cross-action since it was the next beneficiary in the event of a forfeiture by the petitioners.

Petitioners then filed their unverified motions for summary judgment relying upon sworn affidavits. Controverting affidavits were filed, but there was nothing attached to the affidavits of either party nor did the affidavits of the petitioners refer to “Exhibit A.”

Petitioners rely upon the case of Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962), as controlling in this situation. They contend that since there was no objection in the trial court concerning the absence of the sworn or certified copy of Mrs. Dean’s will and the order probating it being attached or served with their affidavits, then an assignment of error to that effect comes too late when raised for the first time before the Court of Civil Appeals. See also Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.1963, error ref. n. r. e.), relying upon Youngstown, supra.

We distinguish Youngstown Sheet & Tube Co. v. Penn for the following reasons. In that case, the plaintiff sued The Texita Oil Company on a sworn account and for foreclosure of its materialmen’s lien on the Mallard “A” and Mallard “B” leases in Ata-scosa County. Plaintiff by amended petition alleged that Texita was a partnership composed of certain named individuals. Three of these individuals, the defendants, filed a verified answer denying that they were partners in Texita, and further denied that they had engaged in a partnership with Texita in the development and operation of the two leases. Defendants’ motion for summary judgment was granted and the Court of Civil Appeals affirmed. Of the affidavits filed in support of their motion for summary judgment, one referred to a photostatic copy attached to the defendants” original answer and stated that such instrument was executed by the three defendants and Texita concerning the operation of the Mallard “B” lease.

We held that those affidavits were subject to exception in the trial court because, among other defects, sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit. However, we went on to hold that:

“ * * * objections of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” 363 S.W.2d 230, 234.

A different situation and -result prevailed with respect to the Mallard “A” lease. No attempted incorporation by reference -of that operating agreement into the defendants’ affidavits was made, nor was such attached to the motion for summary judgment or to any of the pleadings. It simply was not in the record. We therefore held on the basis of Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), that the defendants had not discharged their burden of showing that they were entitled to judgment as a matter of law, regarding the Mallard “A” lease.

The distinction that we draw is that in Youngstown, supra, as to the Mallard “B” lease, there was a reference to the copy of the operating agreement attached to defendants’ answer. By sworn affidavit defendants stated that such was executed by the parties. A copy of the affidavit was served on the plaintiff, as was a copy of the defendants’ original answer with the photostat of the operating agreement attached. We held that in those circumstances the copy constituted a sufficient basis upon which a motion for summary judgment could either be granted or denied, in the absence of an exception by the opposing party.

In the case before us petitioners did not attempt in their sworn affidavits to adopt by reference the copy attached to their pleadings, known as “Exhibit A.” A duplicate of petitioners’ pleadings, including “Exhibit A”, had been served upon the respondents. The same was true in regard to petitioners’ affidavits that they filed in support of their motions for summary judgment. However, in the affidavits of the petitioners, “Exhibit A” was never sworn to be a true and correct copy of the duly probated will of Mrs. Carrie Slaughter Dean, As it now stands, petitioners’ exhibit attached to their pleadings cannot come within the rule set out in the Youngstown case.

Instead, we agree with the Court of Civil Appeals, which holds that this case is controlled by Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961). In that case we held that where the defendant failed to attach to his motion for summary judgment either sworn or certified copies of the record and judgment in an earlier suit that there was nothing in the record upon which the appellate court could rely to determine whether that motion had been properly granted. As a result we held that the judgment could not stand.

The facts in this case before us are substantially the same. True enough, there was nothing in the Gardner record of the prior judgment, not even a purported copy of that judgment. Here there is a copy which is not certified or verified to be the duly probated will of Mrs. Carrie Slaughter Dean. Rule 166-A has not therefore been complied with and the motion for summary judgment should have been overruled by the trial court. Rule 166-A (e), Texas Rules of Civil Procedure.

However, petitioners contend that there are certain judicial admissions concerning Mrs. Dean’s will that appear in respondent Handley’s controverting affidavit and in the pleadings of the other respondents because they utilize “Exhibit A” or parts of it. We have examined respondent Handley’s affidavit and the strongest inference or “admission” is that there is a will of Mrs. Carrie Slaughter Dean. It does not refer to the will as that copy attached to petitioners’ pleadings known as “Exhibit A”. This could hardly be said to cure the defect of petitioners’ motion for summary judgment.

As to the alternative theories set forth in the various pleadings of the respondents, we note that they all have general denials as well. This, of course, puts the petitioners in a position of having to prove every material fact of their cause of action, even though through alternative pleadings respondents assumed the existence of the will or that the copy was a true and correct one. Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949); Dallas Ry. & Terminal Co. v. Hendricks, 140 Tex. 93, 166 S.W.2d 116 (1941). These cases are the latest word concerning the effect of a general denial by this court.

Petitioners point out that the respondents objected for the first time before the Court of Civil Appeals to the absence of a verified or certified copy of Mrs. Dean’s will. Since this was a nonjury trial, no motion for new trial was required to be filed. Rule 324, T.R.C.P. However, petitioners argue that even though not required to do so, respondents did file a motion for new trial and are therefore limited to the errors assigned therein. This question has been decided to the contrary by this court in Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101, 104 (1939). See McDonald, Texas Civil Practice, Vol. 4, p. 1427 § 18.04.

There is no verified or certified copy of the will nor a sworn or certified copy of the order probating such before the court upon which to base petitioners’ motion for summary judgment. Therefore, the judgment of the Court of Civil Appeals is affirmed.

GREENHILL, Justice

(dissenting).

Rule 1 of the Texas Rules of Civil Procedure says in part that the purpose of the rules is to expedite the trial of cases with the least possible expense to the litigants; that the proper objective of the rules is to obtain a just, fair, and equitable adjudication of the rights of litigants; and that the rules should be given a liberal construction. Certainly this rule is intended to apply generally. What the majority opinion says, at least to me, is that Rule 1 does not apply to Rule 166-A which deals with summary judgments. With summary judgments, we are back to a strict and technical construction of the Rules of Civil Procedure.

The will in question was actually before the trial court in all of the ways set out in the Court’s opinion. We are nevertheless requiring the litigants and their counsel to expend the time and money to retry this case because of a matter about which there was actually no controversy in the trial court. In my opinion this Court should decide the merits of the case.


text:
    LANE-WELLS COMPANY, Petitioner, v. CONTINENTAL-EMSCO COMPANY, Respondent.
    No. A-10812.
    Supreme Court of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 12, 1966.

      Patterson, McDaniel, Moore & Browder, Houston, for petitioner.
    L. L. James, Tyler, for respondent.
   WALKER, Justice.

This is a controversy between claimants who furnished services, materials and supplies used in drilling an oil and gas well on the Swift Ranch Lease in Leon County. Each of the claimants perfected and has a valid and subsisting mechanic’s and mate-rialman’s lien under the provisions of Chapter 3 of Title 90, Texas Revised Civil Statutes 1925. The well was a failure, but certain tubing and casing supplied by Continental-Emsco Company, one of the claimants, was salvaged and sold under orders of the court. The trial court held that the lien of Continental-Emsco on the materials so supplied by it is prior and superior to the liens of Lane-Wells Company and the other claimants, and the Court of Civil Appeals affirmed. 389 S.W.2d 555. In our opinion all of the liens are of equal dignity.

None of the claimants has or asserts any lien other than that conferred by the statutes mentioned above, and the only question to be decided is the relative standing of their statutory liens. The history and development of the applicable statutes has an important bearing on the contentions advanced. For many years there was no statutory lien generally available to laborers and materialmen in the oil and gas industry. See Oil Field Salvage Co. v. Simon, 140 Tex. 456, 168 S.W.2d 848. In 1917 the Legislature enacted a comprehensive statute which was later codified as Chapter 3 of Title 90, Texas Revised Civil Statutes 1925. Acts 1917, p. 28, ch. 17. Section 1 of the original Act, which became Article 5473, provided as follows:

“Any person * * * who shall, under contract, express or implied, with the owner of any land, mine or quarry, or the owner of any gas, oil or mineral leasehold interest in land * * * perform labor or furnish material, machinery or supplies, used in * * * drilling * * * any such oil or gas well * * * shall have a lien on the whole of such land or leasehold interest therein * * * and upon the materials and supplies so furnished, and upon said oil well, gas well Hi ‡ ‡ 99

This statute was amended in 1929 to include one who hauls material, machinery and supplies among those who might acquire a lien thereunder, and to provide that the lien of such person would extend to the materials and supplies so hauled. Acts 1929, 41st Leg., p. 477, ch. 223, § 1. It was again amended in 1957 by adding the language quoted in italics below, and Article 5473 now provides as follows:

“Any person * * * who shall, under contract, expressed or implied, with the owner of any land, mine or quarry, or the owner of any gas, oil or mineral leasehold interest in land * * * perform labor, furnish or haul materials, machinery or supplies used in * * * drilling * * * any such oil or gas well * * * shall have a Hen on the whole of such land or leasehold interest therein * * * and upon the materials, machinery and supplies so furnished or hauled, and upon all other materials, machinery and supplies owned by such owner and used in * * * drilling * * * such oil or gas well * * * and upon said oil well, gas well *

Continental Emsco says that before the 1957 amendment, a materialman was held to have a prior and superior lien upon the materials and supplies furnished by him, and cites Wagner Supply Co. v. Bateman, 118 Tex. 498, 18 S.W.2d 1052; Wotola Royalty Corporation v. Bethlehem Supply Co., Tex.Civ.App., 152 S.W.2d 480 (affirmed 140 Tex. 9, 165 S.W.2d 443); and Hoffman v. Continental Supply Co., Tex.Civ.App., 120 S.W.2d 851 (reversed 135 Tex. 552, 144 S.W.2d 253). It then points out that the provision extending the lien to “materials and supplies so furnished” was carried forward when the statute was amended in 1957, and argues that each ma-terialman is still entitled to a first and superior lien upon all materials which he furnishes. We do not agree.

Prior to the 1957 amendment, the supplier and the hauler were the only persons given a lien upon personal property which had not become affixed to and a part of the realty. See Security Banking & Investment Co. v. Flanagan, Tex.Com.App., 254 S.W. 761. Except as between the hauler and the supplier, there could be no question as to the priority of statutory liens upon personalty. The relative standing of liens acquired under the statute on property subject thereto was not presented to the appellate court in either Wotola or Hoffman. The controversy on appeal in Wagner Supply Co. v. Bateman, supra, was between Bate-man, who asserted a laborer’s lien, and Wagner Supply Company, which had a chattel mortgage as well as a statutory ma-terialman’s lien upon materials it had supplied. In the course of the opinion it was pointed out that the materialman’s lien “was a first lien, which did not lose its priority, since we have held that the merchandise supplied was removable from the well and premises, and Bateman had no lien thereon.” (Emphasis supplied.) Bateman could not acquire a lien under the statute upon material furnished by another which had not become a part of the realty, and this is the reason given for the conclusion that the “first lien” of Wagner Supply Company “did not lose its priority.” It can fairly be inferred from what the Court said that the lien would have lost its priority if the materials had become affixed to the realty so as to entitle other claimants to a statutory lien thereon.

In the present case the Court of Civil Appeals reasoned that when the lease owner purchases material for drilling a well, his title to such material is burdened with a lien in favor of the supplier for the purchase price. Since the 1957 amendment extends the statutory lien to “all other materials, machinery and supplies owned by such owner,” the court concluded that any lien acquired under this provision of the statute attaches to whatever title may be held by the owner and is therefore subject to the lien of the supplier. While Article 5473 may be subject to this construction when considered alone, the statute by its terms does not purport to regulate priorities and the Legislature has dealt specifically with that subject elsewhere.

Article 5476, which is part of Chapter 3, provides that “Liens herein created shall be enforced within the same time and in the same manner as provided in the preceding Chapter.” This or a substantially similar provision has been included in the laws applicable to mechanic’s and materialmen’s liens on mineral and leasehold estates since the original statute was enacted in 1917. The preceding chapter is Chapter 2 of Title 90. It contains the several statutes governing liens arising from the furnishing of labor or material for the construction of buildings and other similar improvements. One of the statutes in Chapter 2 is Article 5468, which provides as follows:

“Except as provided in the succeeding article, the liens for work and labor done or material furnished, as provided in this chapter, shall he upon an equal footing without reference to the date of filing the account or lien. In case of foreclosure, if the proceeds of the sale of any property described in any account or lien are insufficient to discharge all the liens against the same, such proceeds shall be paid pro rata on the respective liens; provided, such accounts or liens shall have been filed and suit brought as provided by this law. Nothing in this law shall in any manner affect the contract between the owner and original contractor as to the amount, manner or time of payment of said contract price.” (Emphasis supplied.)

The succeeding article is Article 5469. It requires an owner to retain ten per cent of the contract price of the building for thirty days after completion, and gives mechanics and artisans who have complied with the applicable statutes a preference lien, ratably among themselves, upon the fund so retained. If the owner fails to retain such fund, the artisans and mechanics are given, ratably among themselves, a lien upon the property which is superior to that of other claimants. There is no provision in Chapter 3 requiring an owner to retain part of the contract price, and Article 5469 deals with priorities rather than the enforcement of liens. In our opinion it has no application to liens arising under the provisions of Article 5473.

Distribution of the proceeds of foreclosure is, however, an essential step in the enforcement of a lien. Since Article 5468 requires that the proceeds of foreclosure be paid pro rata on the respective liens and the Legislature has directed that liens arising under the provisions of Chapter 3 he enforced in the same manner as provided in Chapter 2, it seems clear to us that all Chapter 3 liens are of equal dignity.

The judgments of the courts below are reversed, and the cause is remanded to the district court with instructions to enter judgment in accordance with this opinion.


author: McDONALD, Presiding Judge. MORRISON, Judge.

text:
    Felix SALAZAR and Jesus Torres, Appellants, v. The STATE of Texas, Appellee.
    No. 38368.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 24,1965.
    Second Motion for Rehearing Denied Jan. 12, 1966.

      Bert Kirk, Cuero, Arthur L. Lapham, Victoria, for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The appellants were jointly indicted, tried, and convicted for the murder of one Pete Rosales and each assessed punishment at confinement in the penitentiary for a term of ninety-nine years.

The convictions were under the second count of the indictment, which charged that, while acting together, the appellants did unlawfully, voluntarily, and with malice aforethought, kill the deceased by cutting him with a knife.

It was shown by the state’s testimony that on the day in question the deceased came to a beer place in Westhoff which was owned by Alex Anzaldua. The two left the place to try out an automobile which the deceased had purchased that day. After they left, the two appellants and some companions came into the place. Steve Rosales, the father of the deceased, then left the place and went to a cafe, where he informed Anzaldua that “there was a little noise going on” over at his place. Anzaldua and the deceased, accompanied by the deceased’s brother Simon Rosales, then returned to Alex’s place in the deceased’s automobile. When An-zaldua went inside, the appellant Torres was standing by the bar and asked: “Where is that m_ f_ Pete Rosales?” Someone then hit Anzaldua and knocked him out the door. The two appellants then came outside, where an altercation ensued between them and the deceased, Pete Rosales, and his brother Simon. In the fighting, the appellant Salazar produced a pistol and fired some shots, two of the bullets striking the deceased and two striking his brother Simon. Appellant Torres jumped on the deceased and started cutting him with a knife.

It was further shown that when Constable Clyde Whitehead arrived upon the scene, both appellants, whose hands were bloody, handed him their bloodstained knives. Salazar said, “ ‘I did not shoot him, we cut him,’ ” and Torres said, “‘Somebody hit me and I pulled out my knife and started cutting him * * * I just kept cutting him after he fell.’ ” At such time, the deceased was lying on the ground and, in the words of the officer, “His head was cut nearly completely off,” and there was a large gash over his heart and one across his stomach and there were big gashes across his left arm and leg.

Dr. Paul Obert described the wounds upon the deceased’s body and testified that the bullet wounds did not cause death but that the cause of death was massive bleeding from a cut on the neck which went into the big artery.

Appellants testified as witnesses in their own behalf. Appellant Torres testified, in substance, that in the affray he acted in his own self-defense. Appellant Salazar testified that he acted both in his own self-defense and in defense of the appellant Torres.

The court, in his charge, instructed the jury on the right of self-defense and defense of another as to the appellant Salazar and the right of self-defense as to the appellant Torres.

The jury, by their verdict, rejected the defenses interposed by appellants and we find the evidence sufficient to sustain the judgment of conviction.

The appellants predicate their appeal upon certain informal bills of exception.

In the first bill, complaint is made to certain questions propounded to the witness Steve Rosales, the father of the deceased, with reference to whether the deceased was married and if he had a family. The record reflects that after the questions were asked and the witness testified that the deceased was married and had a family of eight, appellant objected on the ground that such procedure was “highly improper,” and asked for a mistrial. The objection and the request for a mistrial were by the court overruled. Complaint is also made in the bill to similar questions propounded to the witness as to the marital status of his son Simon.

While under the case of Cavarrubio v. State, 160 Tex.Cr.R. 40, 267 S.W.2d 417, cited by appellants, such an inquiry is recognized by this court as being irrelevant and immaterial, we are unable to agree that the court’s action in permitting the witness to give the testimony calls for a reversal of the conviction. Appellants’ objections to the questions were not timely made. We have been cited no case, and know of none, where a conviction for' murder has been reversed solely because of proof offered by the state that the deceased was married and left children surviving.

By bill of exception # 2, appellant complains that the court erred in permitting the state’s witness Simon Rosales to exhibit to the jury the two bullet wounds on his body which he received in the difficulty, over the objection that exhibiting the wounds was highly prejudicial and inflammatory. It is the appellants’ contention that exhibiting the wounds, as described in the record, was reasonably calculated to inflame the minds of the jury. The record reflects that after the witness had exhibited one of the wounds, the jury was taken out and counsel for the defense stated:

“Let the record reflect the witness is showing and has exhibited to the jury his body. That he has pulled his shirt up and he shows the jury a scar across his abdomen about the area of his sternum approximately three and a half to four inches in length. The said scar is purple. It stands out vividly. And also it is a raised scar or proud flesh.”

The trial court at no time certified that the facts related by defense counsel were true and correct.

As stated in 5 Tex.Jur.2d 330, Sec. 200:

“The statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts that form the basis of the objection are true. It only shows that such an objection was made, and is accordingly insufficient. Further, mere recitals in a bill, not verified by the certificate of the judge, or otherwise revealed by the record, cannot be considered as showing injury.”

And in Salinas v. State, Tex.Cr.App., 363 S.W.2d 265, this court held that where there were no photographs or description of the scars which would authorize this court to conclude that they had an ugly, ghastly, or revolting appearance or condition such as would be reasonably calculated to influence and prejudice the rights of the appellant before the jury, no error was shown.

In the case at bar, there was no showing that the facts as set out in appellants’ objection were true, and therefore show no injury to the rights of the appellants.

Bill of exception # 3 complains of the court’s action in permitting the state to show by the witness Simon Rosales that he was treated by a Dr. Davis, of Cuero, for the bullet wounds in the affray and remained in a hospital for four days, over the objection that such testimony was immaterial and irrelevant.

We fail to perceive any reversible error in admitting this testimony.

Other informal bills of exception complain of the court’s action in permitting the state to elicit testimony concerning a conversation which took place at the American Cafe in Cuero between appellant Salazar and David Rosales, a brother of the deceased some three or four months after the killing.

Salazar admitted, on cross-examination, that he confronted Rosales and a cousin of deceased in the restaurant, saying to them that he heard they had been looking for him, and asking them if they still wanted trouble. David Rosales testified that appellant on the same occasion called him a son-of-a-bitch, told him to leave the cafe, and said, “Don’t make some kind of move because I will shoot your head off.” Appellant contends this evidence is irrelevant, immaterial, and prejudicial. Statements made by a slayer before, at the time of, and after the homicide are pertinent evidence to show express malice. In Lewis v. State, 29 Tex.App. 201, 15 S.W. 642, the accused, in his defense to a murder indictment, claimed the decedent had been killed accidentally while the accused and decedent were fighting. A witness for the state rebutted this theory by testifying that defendant had told him, in a conversation occurring sometime after the killing and in a distant part of the state, that he, the defendant, had killed the deceased and that he wanted to kill certain friends of deceased. The Court of Appeals found no error in the admission of the testimony as to the desire to kill other acquaintances of the deceased, saying, “We think the testimony objected to was relevant and admissible. It was relevant to the issue of express malice. It tended to show that the defendant’s enmity towards the deceased was so intense that it embraced her friends * * * it was because of his malice towards her that he entertained malice towards them,” citing even earlier cases: Garza v. State, 11 Tex.App. 345; McKinney v. State, 8 Tex.App. 626; Duebbe v. State, 1 Tex.App. 159.

Again, in Russell v. State, 89 Tex.Cr.R. 572, 232 S.W. 309, in rebutting the defendant’s contention that he killed the decedent in self-defense, it was shown that defendant became very angry upon learning that a friend had been beaten up by a hotel proprietor and his employees, and testimony that defendant stated that he pursued the hotel proprietor through 40 rooms to kill him was admissible as evidence of malicious temperament in the action against defendant for the death of one of the hotel employees.

And in a prosecution for murder, testimony that defendant had told deceased’s wife that he killed deceased because deceased had been killing defendant’s dogs was admissible in rebuttal of defendant’s claim that he killed deceased for insulting defendant’s wife. Hughes v. State, 97 Tex.Cr.R. 607, 262 S.W. 745.

The accused pleaded self-defense in Carson v. State, 57 Tex.Cr.R. 394, 123 S.W. 590, (reversed and remanded on other grounds). Evidence of statements of the accused, made after the killing, showing intense dislike and ill will towards decedent, was admissible to show this state of mind and to illustrate accused’s attitude respecting the killing.

These holdings are now reflected in Art. 1257a, Vernon’s Ann.P.C. See Branch’s Ann.P.C. 599, par. 2240. The present rule was announced by Judge Hawkins, in Ivey v. State, Tex.Cr.App., 212 S.W.2d 146, where it was held that any competent evidence which tends to defeat the defense urged in a criminal action is admissible, though it tends to show an extraneous offense.

Appellant contends that his actions were predicated on fear for his safety and the safety of his friend, Torres, and that he acted in self-defense. Salazar’s conduct and statements in the cafe tended to show a malicious temperment and ill feeling toward the Rosales family, and was admissible to rebut the self-defense theory developed by appellants.

Finding no reversible error, the judgment is affirmed.

ON APPELLANTS’ MOTION FOR REHEARING

MORRISON, Judge.

The appellants assert, and we agree that the question as to the exhibition of scars on the body of deceased’s companion is before us for consideration. We are not, however, impressed with the claim that reversible error is reflected thereby. We cannot bring ourselves to conclude that the mere exhibition of scars standing alone constitutes reversible error.

The burden is upon the appellants to impress this Court with the gruesomeness of the exhibition. This was done to the writer’s satisfaction in Burns v. State, Tex.Cr.App., 388 S.W.2d 690. These appellants have failed to do so in the case at bar. See also Grims v. State, 158 Tex.Cr.R. 35, 253 S.W.2d 52, and McMurrey v. State, 145 Tex.Cr.R. 439, 168 S.W.2d 858.

Appellants’ motion for rehearing is overruled.


author: McDONALD, Presiding Judge.

text:
    Ex parte Henry P. VERNON, Appellant.
    Nos. 39097, 39098.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 12, 1966.

      Van H. Hendrix, Vernis Fulmer, Nacog-doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant is under two indictments for the offense of rape. He sought to he discharged on hail. After hearing, the Honorable J. C. Gladney, District Judge, held that appellant was entitled to be admitted to bail in the sum of $15,000.00 in each case and remanded him to jail until such time as bail in this sum was furnished. This appeal is from Judge Gladney’s orders.

In the absence of a showing that an effort has been made to furnish bail in the amount fixed following the habeas corpus hearing, we must decline to entertain the complaint that the $15,000.00 bond in each case is excessive. Ex parte Shaw, 170 Tex.Cr.R. 315, 340 S.W.2d 818; Ex parte Swaim, 168 Tex.Cr.R. 391, 328 S.W.2d 299.

The judgments are affirmed.


author: DICE, Commissioner. MORRISON, Judge

text:
    Leonard HAMILTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38600.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 12,1966.

      Daylee Wiggins, Phillip Bordages, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Ken Parker, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for forgery; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

The indictment, in separate counts, charged that on or about the 21st day of September, 1964, the appellant did forge and pass as true an instrument of the tenor following :

It was also alleged that appellant had theretofore been convicted of two felonies less than capital, the first conviction being in the Criminal District Court of Jefferson County on November 23,1959, in Cause No. 22308, for the offense of “forgery and passing” and the second conviction in the same court on May 23, 1961, in Cause No. 23469, for the offense of burglary, committed after the prior judgment of conviction had become final.

The state’s evidence shows that the witness Mrs. Wanda Meriwether was employed as a clerk at Landry’s Drive In in the city of Beaumont. On the morning of September 19, 1964, when Mrs. Meriwether went to the store to open the business she discovered that the place had been burglarized and ninety-one blank “Bondified” money orders were missing. She stated that the last three digits on the stolen money orders started at 710 and ran through 800.

It was shown that on September 21, 1964, one Alton Frazier Mack, Jr., went into the Gem package liquor store in the city of Beaumont and cashed a money order (state’s exhibit 9) in the sum of $91.65, of the tenor set out in the indictment.

Mack, who was serving a three-year probated sentence for forgery of the endorsement of the money order in question, upon being called as a witness by the state, testified that on September 21, 1964, he met appellant at a club and appellant asked him if he knew where he could get a check cashed. When the witness stated that he believed he “could,” appellant produced the money order (state’s exhibit 9), which was “already made out.” The witness related that after going to several liquor stores they went to the Gem Cut Rate Liquor Store, where he took the money order into the store and cashed it, after endorsing it on the back. He further related that after they left the store, appellant gave him $25 out of the proceeds.

It was further shown that on September 23, Officers Austin and Cole went to appellant’s home around 6 a. m., with a warrant for his arrest upon a charge of forgery and passing a forged instrument. Appellant was placed under arrest and at such time the officers found under a mattress a number of blank money orders similar to those missing from Landry’s Drive In. A check protector was also found under some clothes behind a dresser.

From his home, appellant was taken to the police station where, after being questioned, he made, a written confession, which, however, was not introduced in evidence. Subsequent to giving the confession appellant was taken before a magistrate.

On the following day, September 24, two specimens of handwriting (state’s exhibits 10 and 11) were given by appellant after being duly warned by Officer Gene Wilson that the same could be used against him.

Paul W» Hanson, questioned-document examiner for the State Department of Public Safety and a handwriting expert, testified that he had examined the handwriting on state’s exhibits 9, 10, and 11, and that in his opinion the writing on the face of the money order (state’s exhibit 9) was by the person who did the writing on state’s exhibits 10 and 11.

Proof was made in the manner approved by this court by the introduction in evidence of certified copies of certain indictments, judgments, and sentences, together with authenticated prison records and comparison of fingerprints, that appellant had been convicted on November 23, 1959, in the Criminal District Court of Jefferson County, in Cause No. 22308, of the offense of forgery, and that thereafter, on May 23, 1961, he was convicted in the same court, in Cause No. 23469, of the offense of burglary. However, no proof was made by the state that the conviction in 1961 was for an offense committed after the 1959 conviction had become final.

The indictment for burglary, in Cause No. 23469, was returned on April 27, 1961, and charged that the offense was committed on or about the 31st day of December, 1960. An indictment for burglary may be presented within five years but not afterward. Art. 179, Vernon’s Ann.C.C.P. Under the indictment, proof that the burglary was committed prior to the date of appellant’s conviction for forgery on November 23, 1959, would support the conviction.

In the absence of proof that appellant’s conviction for burglary in 1961 was for an offense committed after his conviction in 1959 for forgery, had become final, his punishment cannot be enhanced under Art. 63, supra. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383; Cowan v. State, 172 Tex.Cr.R. 183, 355 S.W.2d 521.

Appellant did not testify or offer any evidence in his behalf other than his testimony before the court in the jury’s absence on the question of whether he voluntarily gave the two specimens of handwriting.

The issue of appellant’s guilt of both forgery and passing as true the forged instrument was submitted to the jury upon a charge on the law of principals.

The jury by their verdict found appellant guilty of forgery and that he had been twice legally convicted of the two felony offenses alleged in the indictment.

We overrule appellant’s contention that the evidence is insufficient to support the conviction because the state failed to prove that he made the instrument in writing (state’s exhibit 9) without lawful authority. The evidence shows that state’s exhibit 9 was one of the blank money orders stolen from the Landry Drive In.

Mrs. Meriwether testified that she, her mother, and Mr. Landry were the only three people who had the authority to issue the money orders. As is pointed out in the state’s brief, the very fact that the money order was stolen negates any possibility of appellant’s having “lawful authority” to make it.

We also overrule appellant’s contention that there was a fatal variance between the allegation of the indictment that appellant made the instrument in writing and the proof because the maker of the instrument shown in state’s exhibit #9 appears to be Travelers Express Company, Inc. While the money order introduced in evidence bears the printed name, “Travelers Express Company, Inc.” and the facsimile signature of its treasurer, as maker, the evidence shows that it was appellant who filled in the face of the instrument by writing the date, “9-19-64,” the name of the purported purchaser, “Sam Brussard,” the address of the purported purchaser, “3010 Jone St., Baton Rouge, La—,” the purported payee, “Frank Terrell,” and the amount, $91.65.

One is guilty of making a false instrument who, knowing the illegal purpose intended, writes or causes to be written the signature or the whole or any part of the forged instrument. Art. 991, V.A.P.C.; 25 Tex. Jur.2d 527-528, Sec. 4.

Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.2d 316, and Landrum v. State, 118 Tex.Cr.R. 132, 42 S.W.2d 1026, cited by appellant, are not here controlling, because in those cases the accused was charged by indictment with making a false instrument in writing, to-wit: a check, and the proof showed that the forgery was of the endorsement on the back of the check.

The court did not err in admitting the two specimens of appellant’s handwriting (state’s exhibits 10 and 11) in evidence over the objection that they were not voluntarily made and in compliance with the requirements of Art. 727, V.A.C.C.P.

In the absence of the jury, it was shown by the testimony of Officer Gene Wilson that appellant was duly warned before giving the handwriting specimens and that the same was voluntarily done. Appellant testified that before giving the specimens of handwriting he was beaten by Officer Cole but made no claim that he was threatened or harmed by Officer Wilson. On cross-examination appellant admitted that he did write the specimens voluntarily.

The court made an independent finding that the two specimens were voluntarily given by appellant. Such finding is amply supported by the record. No issue was raised by appellant before the jury as to the voluntary giving of the specimens.

The contention urged by appellant that he was denied due process of law by the court’s action in permitting the state to read to the jury the enhancement portions of the indictment alleging the two prior convictions and make proof thereof has been by this court overruled. Wright v. State, Tex.Cr.App., 364 S.W.2d 384; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189; Oler v. State, Tex.Cr.App., 378 S.W.2d 857; Ex parte Reyes, Tex.Cr.App., 383 S.W.2d 804; Crocker v. State, Tex.Cr.App., 385 S.W.2d 392. See, also: Breen v. Beto, Fifth Circuit Court of Appeals, 341 F.2d 96.

While appellant’s punishment cannot be enhanced under Art. 63, supra, because the proof fails to show that his conviction in 1961 was for an offense committed after his conviction in 1959 had become final, his punishment may be enhanced under Art. 62, V.A.P.C., as a subsequent conviction for a non-capital felony offense of like character by reason of his conviction for forgery in 1959, and his punishment fixed at the maximum term of seven years, provided by Art. 995, V.A.P.C., for the offense of forgery. Haines v. State, Tex.Cr.App., 391 S.W.2d 58.

The judgment and sentence are reformed to provide for appellant’s confinement in the Texas Department of Corrections for a term of seven years.

As reformed, the judgment is affirmed.

Opinion approved by the court.

MORRISON, Judge

(dissenting).

I agreed to the reformation of the sentence in Haines v. State, Tex.Cr.App., 391 S.W.2d 58, because the indictments were not introduced in the cases which were there alleged for enhancement. They were in Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383, and they are in the case before us here. I adhere to my views expressed in my dissent in Rogers v. State, supra.


author: DICE, Commissioner.

text:
    Ben F. VICK, Appellant, v. The STATE of Texas, Appellee.
    No. 38676.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Rehearing Denied Jan. 12, 1966.

      Wm. Brode Mobley, Jr., Corpus Christi, •for appellant.
    Sam L. Jones, Jr., Dist. Atty., W. DeWitt Alsup and Douglas Tinker, Asst. Dist. Attys., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for theft by false pretext; the punishment, five years.

Prosecution was based upon a general theft indictment which charged the fraudulent taking of certain corporeal personal property of the value of over $50 from one A. I. Blum.

The state’s evidence shows that the injured party, Blum, owned and operated a store in the city of Corpus Christi known as Blum’s Stag Shop. On December 8, 1964, appellant went into the store and purchased a man’s suit, a pair of shoes, and some ties. In the transaction, appellant represented to the injured party that his name was B. J. Seal and that he was a minister of the gospel. A ten per cent discount was given to appellant and the total amount of his purchases was $98.56. In payment of the merchandise, appellant gave the injured party a check drawn on the Gulfway National Bank, of Corpus Christi, with the name of Parkway Church of Christ printed thereon, for the sum of $200. The check was payable to “B. J. Seal-Minister” and signed by “Wm. D. Martin, Treasurer.” On the back of the cheek appeared the endorsement, “B. J. Seal, 509 Fairfield.” The injured party accepted the check, gave appellant the difference in cash, and appellant left with the merchandise and money.

The check was then taken to the bank and was not paid because of insufficient funds in the account. It was shown that appellant was not a member of the Parkway Church of Christ and that there was no minister in the church by the name of B. J. Seal or treasurer by the name of William Martin. Proof was also made that appellant had gone to the Gulfway National Bank in Corpus Christi and ordered some checks with the name Parkway Church of Christ printed thereon. At such time, appellant represented to the bank’s employee that he was William D. Martin and, after making a $10 deposit in the account, received three hundred printed checks.

Appellant’s written confession was introduced in evidence, without objection, in which confession he admitted having forged the check in question and giving it to the injured party in payment for the clothing.

It was also stipulated by appellant and the state that the check in question was a forgery and that it was made by appellant.

No evidence was presented by appellant other than his stipulation.

We overrule appellant’s contention that the evidence is insufficient to support the conviction. The evidence shows that appellant obtained the property from the injured party with intent to defraud him of the value thereof and to appropriate it to his own use and benefit and did so appropriate it, by the giving of a worthless check. This has been held sufficient to sustain a conviction for theft by false pretext. Gibbs v. State, 158 Tex.Cr.R. 145, 253 S.W.2d 1002; Westover v. State, 167 Tex.Cr.R. 589, 322 S.W.2d 279; Richardson v. State, 169 Tex.Cr.R. 244, 332 S.W.2d 736; and Dinsmore v. State, 169 Tex.Cr.R. 504. 335 S.W.2d 612.

We also overrule appellant’s contention that he cannot be convicted of theft by false pretext under a general theft indictment because the evidence shows a commission of the offense of forgery. The fact that the evidence adduced showed that in the transaction appellant also committed the offense of forgery and passing a forged instrument did not bar his prosecution and conviction for theft by false pretext.

In Lewis v. State, 171 Tex.Cr.R. 231, 346 S.W.2d 608, we said:

“Under the doctrine of carving, the State may carve and prosecute for any offense it may elect which grows out of the same transaction. I Branch’s Ann.P.C. 2nd Ed. 625, sec. 654; Martinez v. State, 165 Tex.Cr.R. 244, 306 S.W.2d 131. The fact that testimony relied upon by the State to show the offense charged against an accused also develops facts which constitute another independent crime does not prevent a conviction for the offense on trial. Fuentes v. State, 163 Tex.Cr.R. 410, 292 S.W.2d 117.”

Appellant’s objections to the court’s charge are not shown to have been made in writing, as required by Arts. 658 and 659, Vernon’s Ann.C.C.P., and are not properly before us for review. Waite v. State, 169 Tex.Cr.R. 484, 334 S.W.2d 816.

We have, however, examined the charge and find no error therein.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Billy Ray VENABLE, Appellant, v. The STATE of Texas, Appellee.
    No. 38574.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Rehearing Denied Jan. 12,1966.

      Adelfa. B. Callejo, Dallas, for appellant
    Henry Wade, Dist. Atty., Curtis Glover, Donald Koons and W. John Allison, Jr., Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $75.

Trial was before the court upon a plea of not guilty.

At the conclusion of the case the trial judge made the following findings:

“At the end of the State’s case the defense made a motion to find him not guilty on the part of the Court which the Court overruled. At that time the Court had heard three officers who testified in their opinion the Defendant was intoxicated to a certain degree. Officer Apple with five years experience, Officer Schafer with about ten years and Officer Livingston with about nine years, Officers Schafer and Livingston being the arresting officers. They testified as to the erratic driving of the car, about it sliding around the corner there and about it going around that other corner and hitting that concrete culvert and going into the ditch. At that time the circumstances were sufficient for the Court to overrule the motion of not guilty. Later the Defendant testified he was not driving the car and testified he met this man Williams down at the tavern. He said he had two or three beers down there and Williams testified he had six or eight. The Defendant said he was suspicious of Williams to start with and he was wondering about Williams driving the car. Now, when you get down to circumstantial evidence, it’s possible they could have changed drivers at the scene of the accident. It was dark and the officers got there shortly aft-erwards and the ear was tilted and they could have swapped places. On the other hand the Court finds that the Defendant knew that Williams had six or eight beers and was under the influence of intoxicating liquors and permitted him to drive that car on a public street and highway in Dallas County, Texas, on the date in question.
“The Court will hold as in the Ft. Worth case and find that the Defendant knew that Williams was under the influence of intoxicating liquor and was a passenger in the front seat of the car and find him guilty under that Ft. Worth case. In view of the Defendant’s testimony and the fact that he was not driving himself I am going to assess a $75.00 fine and three days in the County Jail.”

The “Ft. Worth case” referred to in the findings of the court is shown to be Joiner v. State, 161 Tex.Cr.R. 526, 279 S.W.2d 333, wherein we said:

“It is now the settled law in this State that the owner of an automobile who permits another whom he knows to be intoxicated to drive the same while he is a passenger therein may be criminally responsible for the acts of the driver, provided there is shown the existence of the elements necessary to constitute him a principal. Brewer v. State, 140 Tex.Cr.R. 9, 143 S.W.2d 599 * * *”

The pertinent facts from the standpoint of the defense are quoted from his brief: “Sometime after 7 P.M., Tuesday, April 7, 1964, George Williams, the helper of the Appellant Marble Setter arrived at Doc’s Drive-Inn on Second Avenue, Dallas, Texas. While at Doc’s, Williams telephoned Appellant at his home requesting to borrow one of the Appellant’s two automobiles as he had frequently in the past. Appellant arrived at Doc’s with the vehicle at approximately 8:15 P.M., whereupon Appellant and Williams in the ensuing approximate U/z hours had 2 or 3 beers each. At that time, approximately 9:45 P.M., Appellant and Williams, left Doc’s Drive-Inn for the purpose of taking Appellant to his home. Appellant allowed Williams to drive his automobile. Williams drove along Second Avenue for approximately 3 miles to Fern Street. Approximately 3 to 4 blocks before the automobile got to Fern Street, Officers Livingston and Shaffer in an unmarked squad car first noticed and followed Appellant’s vehicle at an approximate distance of one block. At Fern Street Appellant’s vehicle made a sudden turn to the left, proceeded approximately 40 feet and in attempting a ‘U’ turn drove off the roadway, hit the culvert and went into the ditch. Officers Livingston and Shaffer arrived at the scene shortly thereafter and found the Appellant at the steering wheel attempting to drive his vehicle out of the ditch. At this point the officers determined both Appellant and Williams were intoxicated. After several unsuccessful attempts by Appellant to drive the automobile out of the ditch, Appellant and Williams both got out of the automobile and the officers placed them under arrest.”

Appellant testified that the reason he allowed Williams to drive his automobile from the Drive-Inn rather than drive it himself was that he “wanted to see if he had had too much to drink to take the car out.”

“Q. Did you have suspicions in your mind that he might be a little loaded?
“A. Well, I didn’t know how long he had been there, and I didn’t want to let the car go out if he had had too much to drink.
“Q. If he had had too much would you have told him no ?
“A. Yes, I would have told him no.
“Q. Well, do you feel like he had had too much to drink out there ?
“A. No, I don’t think he had had too much.
“Q. Did he handle the car all right?
“A. He seemed to handle it fine.”

To the contrary, the state’s evidence was that the car was being driven in a dangerous or hazardous manner, weaving from lane to lane. This, the officers testified, was what attracted their attention and caused them to pursue the car until it went into the ditch.

We find the evidence sufficient to sustain a finding by the trial judge that appellant knew that Williams was under the influence of intoxicating liquor and permitted him to drive his car on a public street.

The evidence is also sufficient to sustain a finding that appellant drove his automobile upon a public street and into the culvert and ditch while intoxicated.

Either of such findings is sufficient to sustain the judgment of the trial court finding appellant guilty of “driving a motor vehicle upon a public road in Dallas County, Texas, while under the influence of intoxicating liquor,” as charged in the information.

“The mere fact that a decision was given for a wrong or insufficient reason will not result in a reversal since, if the decision is correct on any theory of law applicable to the case, it will be sustained.”

5 Tex.Jur.2d 606, Appeal and Error — Criminal, Sec. 402; Washington v. State, 91 Tex.Cr.R. 546, 239 S.W. 961; Fields v. State, 160 Tex.Cr.R. 498, 272 S.W.2d 120.

The judgment is affirmed^


author: MORRISON, Judge.

text:
    Ex parte Jesse Coy KIMBROUGH.
    No. 38518.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 12, 1966.
    Jesse Coy Kimbrough in pro. per.
    Leon B. Douglas, State's Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner, an inmate of the Department of Corrections, made application to the Judge of the 91st Judicial District Court for writ of habeas corpus. Judge Sparks made the writ returnable to this Court, and this Court required the Judge of the 90th Judicial District to certify the facts. We enclosed with such order a copy of a letter from petitioner’s mother addressed to this Court.

The Judge of the 90th Judicial District has certified certain facts, and we find therefrom that petitioner was represented by counsel and did in fact plead guilty to three felonies with an agreement by the then District Attorney that he would recommend to the Court that all three sentences run concurrently and that such recommendation was accepted by the Court. We find no merit in petitioner’s claim of an illegal search.

The writ of habeas corpus is denied.


text:
    James Croft ONG, II., Appellant, v. The STATE of Texas, Appellee.
    No. 38693.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Rehearing Denied Jan. 12, 1966.

      L. R. Winborn, Dallas, for appellant.
    Henry Wade, Dist. Atty., Malcolm Dade 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 driving while intoxicated, subsequent offense; the punishment, a fine of $1500.00 and two (2) years confinement in the county jail.

Although state’s counsel failed to point out the omission, we observe that the statement of facts accompanying this record bears the approving signature only of counsel for the state. Neither counsel for the appellant, the appellant himself, nor the trial court has approved the statement of facts.

Under Art. 759a, Vernon’s Ann. C.C.P., a statement of facts must be approved by the defendant or his counsel and the attorney representing the state, or the trial court. Hubert v. State, 164 Tex.Cr.R. 372, 299 S.W.2d 293; Donley v. State, 165 Tex.Cr.R. 650, 310 S.W.2d 567; Works v. State, 171 Tex.Cr.R. 3, 343 S.W.2d 706; Beale v. State, 171 Tex.Cr.R. 319, 350 S.W.2d 207.

Not having been approved as required by law, the statement of facts, here, is not subject to consideration by this court.

In the absence of a statement of facts, nothing is presented for review.

We observe that the judgment provides for two (2) years confinement in the county jail and a fine of $1500.00, while the sentence provides for confinement for two years in the state penitentiary. In order to comply with the terms of the judgment, the sentence is reformed so as to read, “James Croft Ong, II. shall be confined in said county jail for two (2) years and until such fine of $1500.00 is paid in accordance with the provision of law.” Art. 847, V.A. C.C.P.; Binder v. State, Tex.Cr.App., 253 S.W.2d 433.

As reformed, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    John William PETERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38727.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1965.
    Rehearing Denied Jan. 12, 1966.

      Billy C. Powell (On Appeal Only), Houston, J. Robert Harris (On Appeal Only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and C. A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for indecent exposure to a child; the punishment, eight years.

The testimony of the state reveals that the prosecutrix, (a female), age 9 at the time of the alleged offense, went with her stepmother and stepsister, age 3, to a wash-ateria. They parked the car in front, placed the clothes in a washer and returned to the car. In a brief time the appellant parked his car in front and entered the washateria. When the mother and girls went to change the clothes to the drier, the appellant, with his back to them, was using the rest room with the door open, and then he sat in a chair and began looking at a magazine. The mother returned to the car, and as the girls were returning the appellant grabbed the youngest by the arm but soon released her. The prosecutrix noticed that his trousers were unzipped and his privates were half-out. She told her stepmother, who asked her to get the license number of his car and she did.

The prosecutrix testified that while they were folding the clothes on a table after they had dried, she saw the appellant nearby looking toward her around the magazine which he was holding in his left hand, while with his right hand he was holding and playing with his private parts which were half-out of his pants; and she told her stepmother who looked toward appellant.

The mother testified that when she looked toward the appellant, he had his clothes down and had his private parts out “about half” in view and kept playing with them, and she immediately took the girls and the clothes and went home.

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

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

Opinion approved by the Court.


text:
    George E. THAYER, Appellant, v. The STATE of Texas, Appellee.
    No. 38519.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    Rehearing Denied Jan. 12, 1966.

      Clyde W. Woody (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Frederick M. Stove, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of marihuana; the punishment, two years.

Officers Farrar and Tissue of the Houston Police Narcotic Squad, testifying in the absence of the jury on the question of probable cause authorizing an arrest without a warrant, stated that at 8:55 p. m. on the night in question they received information from a source, whom they considered to be a credible and reliable person, that Henry Zepeda, Louis Cerreno and appellant would meet at Prince’s Drive In within a very few minutes and that a narcotic drug transaction would there be consummated. They further testified that they went at once to Prince’s Drive In and there saw the three named individuals, whom they already knew, in their respective automobiles.

Before the jury they testified that Zepeda got out of his automobile and approached appellant’s automobile, that they saw appellant reach out and secure from Zepeda, a penny match box and that they immediately placed both parties under arrest. The match box which was recovered from appellant’s hand was shown by the testimony of an expert to contain sufficient marihuana to make 12 to 15 cigarettes. From Ze-peda’s person they recovered three similar boxes. Traces of marihuana were discovered in appellant’s shirt and pants pockets as well as in empty sacks found in the garage of the home where appellant resided with his mother.

Appellant, testifying in his own behalf, admitted being at the place at the time in question, but denied that he had received any box from Zepeda and stated that Ze-peda had only passed his automobile and had spoken to him before he (Zepeda) was arrested and the boxes were found on his person.

The jury chose to accept the officers’ version of the transaction, and we find the evidence sufficient to sustain the conviction.

The one serious question with which we are met in this case is the correctness of the trial court’s ruling when he sustained the State’s objection to appellant’s question to the officers, in the absence of the jury, as to whether or not they knew if the person whom they considered credible and reliable had ever been convicted of a felony in this or any other state. While this was not an inquiry as to their informant’s identity, we have concluded that it comes within the same category. We adhere to our ruling in Artell v. State, Tex.Cr.App., 372 S.W.2d 944, and hold that since there was no showing that the informant took any material part in bringing about the offense or that he was present when the offense was committed and could have been a material witness as to whether or not appellant committed the crime, that any inquiry concerning him would not be permitted. In Artell, supra, we relied upon the cases which appear in the Annotation in 76 A.L.R.2d 262, Sec. 20, p. 307. See also Lopez v. State, Tex.Cr.App., 397 S.W.2d 76, this day decided.

Appellant has cited us no opinion of the Supreme Court of the United States which would lead us to believe that we were in error in Artell.

Having so concluded, the judgment is affirmed.


author: DIXON, Chief Justice.

text:
    DALLAS HANDBAG COMPANY, Appellant, v. MAJESTIC FACTORS CORPORATION, Appellee.
    No. 16605.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1965.
    Rehearing Denied Nov. 26, 1965.
    Oster & Kaufman, Dallas, for appellant.
    Goldberg & Alexander, and G. Dennis Sullivan, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Majestic Factors Corporation, domiciled in the State of New York, sued appellant Dallas Handbag Company, a corporation, on a check in the amount of $927.18 signed by Dallas Handbag Company payable to the order of Cornell Handbag Company and endorsed unconditionally by the latter company to appellee.

Payment of the check was stopped on order of appellant. Appellant has not been paid the amount of the check.

The instrument is regular and unconditional on its face. So too is the endorsement of the payee, Cornell Handbag Company, as shown on the back of the check. Appellee alleges that it is a holder in due course. In a trial without a jury judgment was rendered for appellee for the full amount of the check.

The trial court filed findings of fact and conclusions of law. The court found that at the time the check was endorsed it was regular on its face and was received by appellee in good faith for value without notice of any infirmity in the instrument or defect in the title of the endorser, Cornell Handbag Company. The court concluded that appellee is a holder in due course and is entitled to judgment for $927.18 plus interest.

In answer to written interrogatories Sidney W. Dorman, secretary-treasurer and office manager of appellee and in charge of appellee’s books and records testified in substance as follows: the check dated November 12, 1962 was endorsed on November 15,1962 by the payee Cornell Handbag Company to appellee in part payment of an indebtedness of $7,556.31 owed to ap-pellee by Cornell Handbag Company, the amount of the said indebtedness being thereby reduced to $6,629.13; appellee had no notice or knowledge of any defect or counterclaim with respect to the check; and though written demand was made on appellant no payment has been made by appellant to cover the check. It is undisputed that appellant did not order payment stopped on the check until November 18, 1962 — three days after it had been endorsed by Cornell Handbag Company and received by appellee.

By way of defense appellant pleaded that it had ordered merchandise from Cornell Handbag Company, which merchandise after being received was discovered to be defective; that it had so notified Cornell Handbag Company; that the check was subsequently issued and sent to Cornell Handbag Company by mistake; that the account had been assigned to appellee without notice to or the knowledge of appellant; and that appellee had notice of appellant’s claim and furthermore appellee as an assignee of the account is in no better position defensively than its assignor, Cornell Handbag Company; therefore appellee is not a holder in due course of the check in controversy.

The record contains copies of an assignment from Cornell Handbag Company to Morris Silver, Inc., of a number of accounts totaling $2,438. Among them was an account of Dallas Handbag Company for $945.00. There is also an assignment of these same accounts by Morris Silver, Inc., to Majestic Factors Corporation. There is no evidence that either of these assignments was filed for record pursuant to Art. 260-1, Vernon’s Ann.Civ.St.

In two points on appeal appellant contends that (1) the law of contracts, not the Negotiable Instruments Act, is applicable; and (2) even if the Negotiable Instruments Act should be considered applicable appellee is not a holder in due course because (A) appellee had knowledge of a condition precedent and (B) appellee had knowledge of failure of consideration before it received the check.

We see no merit in appellant’s points. There is ample evidence to support the court’s findings and conclusions. Negotiable Instruments Act, Art. 5935, Sections 52 and 56, V.A.C.S. An antecedent or pre-existing debt constitutes value or consideration under the Negotiable Instruments Act. Art. 5933, Sections 24, 25 and 26, V.A.C.S.; Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281, 283. Merely suspicious circumstances (we do not say that the circumstances here were suspicious) or gross negligence are not sufficient to prevent recovery in the absence of a finding of bad faith. Kone v. Security Finance Co., supra, 313 S.W.2d at page 285. There is no finding and no evidence of bad faith in this case. In fact the court found that appellee received the check for value in good faith.

Obviously if any fact issues were raised by the evidence under either the contract theory of appellant or the negotiable instruments theory of appellee they were resolved by the court adversely to appellant’s contentions and are binding on this court.

Appellant claims that it notified Cornell Handbag Company by letter that the merchandise in question was defective, but the letter itself was not introduced and verbal testimony as to its contents was excluded by the court on objection by appellee.

Notwithstanding the sending of the above letter if it was sent, and notwithstanding any defects in the merchandise received, if there were any, appellant thereafter sent the check now in controversy to Cornell Handbag Company in payment of the account. Appellant did not see fit to issue its stop payment order until six days after the check was issued and three days after it had been negotiated by endorsement to appellee.

Appellant claims that the issuance of the check was a mistake. But there is no evidence to support the claim. Appellant’s vice-president was a witness. His counsel sought to ask him this question: “Would you state whether or not the check issued was erroneous or, that it was issued in error?” If the witness had been permitted to answer the question his answer would have been, “I feel that it was.” However, the court sustained objection by appellee and the question and answer were excluded.

Appellant also sought to introduce a purchase order dated August 27, 1962 whereby it ordered certain merchandise from Cornell Handbag Company, on which purchase order there is a notation “Balance Cancelled 5 Nov”. But this document was also excluded on objection by appellee.

Appellant is seeking a reversal based in part at least on evidence which was excluded by the trial court, to which exclusion appellant has raised no points of error. Under the circumstances we cannot consider such evidence. Cruse v. Daniels, Tex.Civ.App., 293 S.W.2d 616, 619; Foreman v. Texas Employers’ Ins. Ass’n, 150 Tex. 468, 241 S.W.2d 977, 979; Thompson v. Larry Lightner, Inc., Tex.Civ.App., 230 S.W.2d 831, 832; Cusack v. Cusack, Tex.Civ.App., 107 S.W.2d 1021.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . If the purchase order had been admitted there would have been evidence that seven days after the cancellation on November 5, 1962 of the balance of the order, appellant issued the check in controversy dated November 12, 1962 in payment of that part of the merchandise called for on the order which had already been received by appellant.