author: MORROW, P. J.

text:
    LEWIS v. STATE.
    No. 14078.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Carl T. Harper, of Madisonville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is rape upon a female under the age of eighteen years; penalty assessed at confinement in the penitentiary for a period of five years.

The proof is evident that the prosecu-trix was under eighteen years of age on the 28th day of April, 1929. According to her testimony, the prosecutrix was riding with the appellant and was a-ssaulted by him. In her direct testimony, she makes out a case of rape by force. Upon that character of rape her cross-examination develops an issue of fact because of her failure to make outcry and report the occurrence and by her admission of subsequent acts of intercourse with the accused. The verdict settled the question in favor of the State.

The appellant introduced no testimony save that which bore upon his application for a suspended sentence.

The only bill of exception contained in the record reads as follows:

“Be it remembered, that upon the trial of the above entitled and numbered cause, after the Court had prepared its charge and before same was read to the Jury, defendant in open Court excepted to paragraphs Nos. 5, 6 & 7, and offered special charge No. 1, which was by the Court overruled, to which the defendant in open Court excepted, because defendant’s contention being that paragraphs Nos. 6 & 7 of the Court’s general charge do not contain the law applicable to the facts in the (case) on trial.”

The exception is too general to require review. The statute requires that objections to the court’s charge be specific in pointing out the grounds of complaint. See article 658, O. O. P. 1925.

The indictment was returned January 17, 1930, and laid the date of the offense as of the 6th day of October, 1929. The first act of intercourse took place on April 28,1929. The complaint of paragraphs 6 and 7 of the court’s charge is framed upon the idea that if, on the date laid in the indictment, the prosecutrix was unchaste, there could be no conviction. The contention is unsound. See Branch’s Ann. Tex. P. C. § 439, and cases collated, among them, Johnson v. State, 1 Tex. App. 118. The prosecution relied upon the act of April 28, 1929, shown by the evidence to have been the first act of intercourse, and the record is bare of any evidence that prior to April 28, 1929, the prosecutrix was unchaste. A like contention was made in a special charge presented by the accused, to the refusal of which exception is reserved. We have perceived no evidence in the record to the effect that the prosecutrix was unchaste prior to her first act of intercourse ■ with the appellant.

The judgment is affirmed.


source: Caselaw Access Project

author: CHRISTIAN, J. MORROW, P. J.

license: Public Domain

text:
    LIMBRICK v. STATE.
    No. 13791.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 1, 1931.
    Adams & Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

Appellant, a negro, lived near Will Williams, the owner of the alleged stolen hogs. It is fairly inferable from ’the record that the hogs of the various members of that community were well known to the neighbors. Williams’ hogs were marked crop and under and over bit in the left ear and two splits in the right.' “Two big black barrows” belonging to Williams disappeared shortly before the 28th of December, 1929. These hogs ran on the range with six shoats and a sow. The sow and six shoats were later found by Williams on their accustomed range, but the two black barrows had completely disappeared. The lost hogs were about two years old, were black, weighed about 200 pounds, and were in Williams’ mark. About the same time the hogs disappeared there was found in appellant’s smokehouse two butchered hogs weighing about 200 pounds each; The heads were gone, but the hair on the legs showed that the hogs were black. Near the house was a pile of black hog hair which had been partly burned. Several witnesses for the state testified that, if appellant had any hogs on the range, they had never seen them. Two days after he lost his hogs Williáms instituted a search which led him to some tracks. Touching his investigation, the witness testified, in substance, as follows: Coming to a “drain” he found the tracks of two large hogs, a sow and six shoats, as well as the tracks of some dogs. Following these tracks he found some blood and shotgun shells. From this point it appeared that something had been dragged through the snow and placed on a “slide.” Following the tracks of the “slide” and of a mule the witness came to appellant’s house. There he observed the black hog hair, above referred to, 'and also evidence of hogs having been cleaned near the house. Engaging in conversation with appellant, the witness made some inquiry concerning his lost hogs. Appellant stated to him that if anybody had killed the hogs they'had riot been brought to his house. Voicing his desire to see the heads of the hogs, the injured party was told by appellant that he would let him see them if he had a search warrant. Leaving appellant’s home, the witness got the sheriff and returned for the purpose of looking into appellant’s smokehouse. There he and the sheriff found two butchered hogs weighing about 200 pounds each, with a little black hair on the feet. The heads were gone and were never produced by appellant. Mark Dyerley, a neighbor of appellant, testified for the state, in substance, that shortly before December 28, 1929, he saw appellant’s boys with some dogs driving two big black hogs belonging to Williams, the injured party; that these hogs were black and weighed about 200 pounds each; that after the boys and dogs had driven the hogs out of his sight he heard a gunshot about a half mile away. The witness did not testify as to whether the boys had a gun at the time he saw them. He said that appellant was not with them. However, his statement did not negative the idea that appellant was at the point where the gun was fired. Another witness for the state testified to having seen appellant and his boys cleaning two large black hogs weighing about 200 pounds each. This witness said he did not notice the marks.

One of appellant’s boys, who was 15 .years of age, testified that he and his brother went on the range at the instance of their father to hunt their father’s hogs; that their dogs got after some of the injured party’s hogs, but that they did not kill any of them, as they were advised by state’s witness Dyerley that the hogs belonged to the injured party; that thereafter they found two of their father’s hogs and killed them; that their father was not with them, at the time they killed the hogs; that they borrowed a “slide” and took the hogs to their father’s house, where he helped clean them; Appellant testified,. in substance, that he was away from home on the occasion his boys killed some hogs; that prior to leaving home he had told his boys to go on the range and hunt for his hogs; that when he returned from town the boys had already killed two hogs and- had brought them home; that he carefully examined them and determined that they belonged to him’ before cleaning them; that his wife had already cooked their heads when Williams asked him about his lost hogs; that he did not decline to let Williams see the meat in the smokehouse. Appellant’s wife gave substantially the same testimony. ’

. Appellant contends that the evidence is insufficient to connect him with the original taking of the hogs. The court gave a charge covering the law of circumstantial evidence. The sufficiency of the circumstances in .the first instance is a question for the jury. The duty of this court in its reviewing capacity is to determine whether there be any evidence in the record upon which the verdict might have foundation. Bradford v. State, 88 Tex. Cr. R. 122, 224 S. W. 901. All of the circumstances taken together are, in our opinion, sufficient to support the conviction.

Appellant filed his motion to quash the indictment on the ground that it was not alleged that the hogs were fraudulently taken. The word “fraudulently” was misspelled in the indictment, the pleader having spelled it “fraudently.” It is the rule that “bad spelling of the word ‘fraudulent’ will not vitiate an otherwise good indictment for theft if the sense is not affected and the meaning cannot be mistaken.” Branch’s Annotated Penal Code, section 2425; State v. Earp,. 41 Tex. 487; St. Louis v. State (Tex. Cr. App.) 59 S. W. 889.

Bill of exception No. 3 relates to appellant’s objection to the testimony of the injured party and of the sheriff touching the result of the search of appellant’s smokehouse. It is merely stated in the bill, as a ground of objection, that the sheriff had no search warrant. The bill is insufficient. A mere statement of a ground of objection in a bill of exception is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569. It may be added that appellant took the witness stand and testified to the fact that the slaughtered hogs found by the officer were in the smokehouse. Having testified to substantially tbe same facts embraced in tbe testimony of tbe officer touching tbe result of tbe search, appellant is in no position to assert that tbe reception of said testimony, if error, was harmful. Jones v. State (Tex. Cr. App.) 27 S.W.(2d) 180.

A careful examination' of appellant’s contentions leads us to tbe conclusion that error is not presented.

Tbe judgment is affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe Judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

MORROW, P. J.

A reconsideration of tbe record in tbe light of tbe appellant’s motion for rehearing leaves tbe court of tbe opinion that on tbe original bearing tbe proper disposition was made of tbe appeal.

Tbe motion is overruled.1


author: CHRISTIAN, J.

text:
    CORNELIUS v. STATE.
    No. 14100.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    N. U. Dalby, of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN, J.

Tbe offense is theft; the punishment, confinement in the penitentiary for two years.

Appellant calls in question tbe sufficiency of the .evidence. We deem tbe evidence insufficient to show that the automobile in which appellant was found riding with other parties belonged to Paul Clay, as charged in tbe indictment. Mr. Clay testified that he lost his automobile. 1-Ie did not undertake to describe the ear in any way. As far as his testimony was concerned, it might have been ■a Buick, Ford, or some other make. 1-Ie did not give the engine number, license number, or any other number. He did say he gave the officers the number of the city and county license. He testified that he had not seen the car since it had been taken. Further, he said the sheriff had delivered to him a flashlight and some pliers which belonged to him. W® quote the entire testimony of the sheriff of Bowie county as follows:

“I saw the car. I had never seen it before, but identified it by the numbers — the highway number and the serial number and a special number of the Southern Distributing Company — I checked all that. You asked me what condition the car was in — the rods were all burned out. I could not bring it home. I found a flashlight and a pair of pliers that Mr. Clay identified. One of the boys had them the sheriff told me, but I have forgotten which one.”

Appellant, Blackie Smith, and Tig McClure were seen riding in a Buick sedan in Bar-stow, 644 miles away from the scene of the theft. Mr. Buchanan, the witness who saw them, notified the sheriff at Pecos. The witness was unable to say who was driving the car. The arresting sheriff did not testify as a witness. No witness testified -to having found the flash-light and pliers in the possession of appellant, or in the possession of either of his companions. The only testimony in the record touching their possession of these articles is found in the hearsay statement of the sheriff of Bowie county to the effect that the arresting sheriff told him he had taken said articles from one of the boys riding in the Buick sedan. While it is true that the sheriff of Bowie county testified that he identified the car by certain numbers, he did not say that the numbers had been given him by the owner of the car; neither did he say that they were the owner’s numbers. Testifying for appellant, Blackie Smith said:

“I stole that car. John Cornelius - (appellant) was at home when I picked him up. I picked him up about 9:30 or 10 o’clock. Tig McClure was with me when I picked him up. John Cornelius did not know anything about this being a stolen car, I told him the car belonged to my father. I did not tell him anything about this being a stolen car until we got to Pecos. McClure did not know that this was a stolen ear. I did not tell Cornelius that this was a stolen car until we got out a few miles outside of Pecos. I told him I was driving that car to El Paso to my father.”

Tig McClure, appellant’s other companion, testified as follows:

“I was with Blaekie Smith when we came by to pick John Cornelius (appellant) up. He was at home. I judge that was between 9:30 and 10 o’clock at night, I do not know exactly the time. I did not hear Blaekie Smith tell John Cornelius anything about this being, a stolen ear. I did hear Blaekie say that the car belonged to his father and that he was taking it to him at El Paso.”

Nowhere in the testimony of appellant’s companions do we find an admission that the Buick sedan discovered by the officers near Pecos belonged to Paul Clay. Blaekie Smith, in effect, said he stole the car that he, appellant, and Tig McClure were riding in, and that appellant did not know that it was stolen. In order to reach the conclusion that appellant was found in the possession of an automobile belonging to Paul Clay, we must supply inferences not justified by the facts. It was incumbent upon the state to prove beyond a reasonable doubt the car alleged to have been stolen belonged to the owner named in the indictment. We are constrained to hold that this burden was not discharged. Kellar v. State, 112 Tex. Cr. R. 404, 16 S.W.(2d) 824.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: HAWKINS, J.

text:
    HAYS v. STATE.
    No. 14023.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    J. E. Cunningham and Martin, Shipman & Winters, all of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor; punishment being five years in the penitentiary.

Appellant lived in the city of Abilene, Taylor county, Tex. L. L. Hurley testified that in the latter part of March, 1930, he went to the home of .appellant some time after dark to borrow from appellant a truck for the purpose of moving witness’ household goods; that appellant said he had some whis-ky which he desired to have “re-run,” and asked witness to go with him to the- still; that they loaded five or six cases of whisky on the truck at appellant’s house and drove to a still located in Callahan county; that C. T. Wright was in charge of the still; that the whisky was conveyed by appellant and witness to the still, and other cases of whisky substituted for it, which they took back to appellant’s home in Abilene; that witness then took the truck away with him for the purpose of moving his household goods.

•Mrs. Janie Wright, the wife of C. T. Wright, testified that she was present at appellant’s house when Hurley came there, and gave evidence supporting Hurley’s version of the transaction. When Mrs. Wright was tendered as a witness, some question was raised as to her competency because her husband was under indictment; he was brought into court, and waived any objection to his wife giving testimony. Appellant did not testify, but used his wife as a witness. She testified that Hurley came to the house desiring to borrow appellant’s truck, claiming he wanted it for the purpose of moving his household goods; that appellant at first refused to let him. have it, claiming .that Hurley and Wright had been using the truck to haul whisky, and that he (ap-pellant) did not want to get into trouble; that some angry words passed between them, but finally appellant let Hurley have the truck, and that he drove it away; that appellant did not go with him, but remained at home all night; that Hurley returned the truck some time during the night. She testified that Jack Neel was present during the conversation between Hurley and appellant, and that Neel spent the night at her house.

The record shows that the still was in Callahan county, and was raided on this same night, which was March 24,th. The officers found Wright at the still. It further shows that the still was located on land which had been leased to one George Roberson. The record also shows that Hurley was under indictment charged with transporting the identical liquor for the transportation of which appellant was convicted, and that Wright was under indictment growing out of his connection with the still.

The indictment against appellant contained two counts; the first charging transportation of intoxicating liquor and the second possession of such liquor for the purpose of sale. Only the first count was submitted to the jury. The offense was alleged to have occurred on or about the 24th day of March. Appellant filed an application for continuance because of the absence of a number of witnesses, among them being Jack Neel. The case was called for trial on the ISth day of June. The application avers that the indictment was returned near midnight of June 12th, and that appellant was apprised of it on June 13th, on which date he made application to the clerk for process for his witnesses, including Neel; that the clerk issued the process and placed them in the hands of the proper officers, but that the process had not been returned, and that none of appellant’s witnesses were present. It was set up in the application that the state would prove that there was found at the still two large tanks for holding mash which would be identified by one Wills as tanks which he had made for appellant; that he could prove by Neel that he saw appellant sell and deliver these tanks to one George Roberson. The following averments are also Sound in the application for continuance-.

“That the state will likely prove by its witnesses, to-wit: Charlie Wright and one L. L. Hurley, or one or both of them, that said still, implements and intoxicating liquor and other matters and things charged in the indictment herein were owned and operated and transported by this defendant * * * and the state will further prove by the witnesses C. T. Wright and L. L. Hurley, one or both of them, that said Hurley worked at the operation of the still found by the sheriff of Callahan County, and which it is alleged belonged to and was in the possession of defendant, and that said Hurley and said Wright were working for the defendant in the operation of said still and in making whisky therewith, and that the said Hurley with the defendant transported some of said whisky so made from said still to Abilene, Texas, and from Abilene, Texas, to said still, and both of said witnesses will testify that said still and other equipment, including the two barrels similar to the ones made by witness Wills were owned by the defendant, and that they were working for defendant in the operation thereof, and in the use thereof of said tanks for the manufacture of intoxicating liquor.”

Continuance was denied and exception properly reserved by bill No. 1.

Other bills of exception show that, after Hurley and Mrs. Wright had testified, appellant stated to the court that he was surprised at their testimony; that in filing his application for continuance appellant had expected Hurley to testify to an entirely different transaction and transportation claimed to have occurréd about a week prior to the time the still was raided, but had no knowledge that Hurley or Mrs. Wright would give testimony regarding any such transaction as claimed by them upon the trial. Appellant presented a written application to withdraw his announcement, claiming that the evidence given by the witnesses was not true either in whole or in part; that appellant had never talked with the witness Hurley, and did not know his whereabouts since the time he came to appellant’s house on the night in question to borrow the truck, but had ascertained from other sources what he understood Hurley would testify in regard to another transaction ; that he undertook to learn from the district attorney whether he would use Hurley as a witness," but that the district attorney declined to say whether he would or not. Hurley was not under process as a witness in this case, but was present in court in obedience to a bond in his own case. It is stated in the bill complaining of the court’s refusal to permit appellant to withdraw his announcement that he again called the court’s attention to the diligence used to secure the witness Neel, and advised the court in said application that, if Neel was present, appellant could prove by him that Neel was at appellant’s house at the time Hurley came there on the night the still was raided and heard the conversation between appellant and Hurley in i-egard' to the loan of the truck, and would also testify that he (Neel) remained at appellant’s house that night and saw Hurley leave the house alone in the truck; that appellant did not go with him, but remained at home the entire night; and that some time during the night Hurley returned with the truck and waked Neel up parking tEe truck in the yard. Attached to the motion for new trial is Neel’s affidavit in which he makes oath that, if present, he would have given the testimony indicated; that he had' no knowledge 'that process had been issued for him. The state resisted appellant’s motion for new trial based on the action of the court in overruling the original application for continuance and denying request to postpone or continue after trial had begun, on the ground that it was shown by the application for continuance itself that appellant knew Hurley would be a witness; that Hurley resided in Abilene, the same town where appellant resided; that he and Mrs. Wright were present in court when the case was called for trial; and that appellant and his attorney had opportunity to talk to the witnesses and were lacking in diligence in not ascertaining what the witnesses would testify.

Our state’s attorney confesses error on the part of the learned trial judge in denying appellant’s motion for new trial, citing in support of his conclusion Bascom v. State (Tex. Cr. App.) 24 S.W.(2d) 437; Baimonte v. State, 101 Tex. Cr. R. 622, 276 S. W. 921, 41 A. L. R. 1527; Adams v. State, 102 Tex. Cr. R. 326, 277 S. W. 638; McGahee v. State, 102 Tex. Cr. R. 399, 278 S. W. 208. The record presents such an unusual situation we have thought it appropriate to consider the question raised regardless of the state’s confession of error.

The case presents a rather unusual situation. We have found none reported in which the question presented arose in a similar manner. The diligence of appellant to secure the witness Neel cannot be doubted. Upon the trial, the state’s case must have taken a turn different from that anticipated by appellant as indicated in his application for continuance. No evidence was introduced with reference to the “mash tanks” or other implements found at the still; hence Neel’s expected testimony as set out in the original application became immaterial; however, his presence became doubly important, in view of the state’s evidence as developed and of Neel’s affidavit attached to the motion for new trial. Article 551, C. C. P., reads as follows:

“A continuance or postponement may be granted on the application of the State or defendant' after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial can not be had.” - <

The state combated the effort of appellant to postpone or continue after the trial had begun on the ground that “reasonable diligence” would have discovered what evidence Hurley and Mrs. Wright would give. This may be true, but it would have in no wise aided appellant in securing Neel’s presence by whom he could have combated their testimony and supported that of his wife.' Of course, if appellant had ascertained in advance what Hurley and Mrs. Wright would testify, it would have enabled him to set up in his application for continuance that he could meet it with Neel’s evidence. After their testimony had been given, if appellant had continued with the trial without then raising objection, he could not on appeal urge that he was surprised in the absence of a request to postpone or continue. Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967. It must be borne in mind that appellant had not announced “ready,” but had been forced into trial after continuance was denied. In most, if not all, of the cases arising under article 551, C. C. P., accused has sought a continuance or postponement to secure witnesses for whom no diligence whatever had been used because their presence was not deemed necessary for any purpose, but whose testimony became material on account of some development during the trial.

As illustrative we cite Rankin v. State, 57 Tex. Cr. R. 132, 122 S. W. 25; Hodde v. State, 8 Tex. App. 382; Roach v. State, 21 Tex. Cr. App. 249, 17 S. W. 464. The case last cited is nearer in facts than others to the present case. As soon as the state’s witnesses Hurley and Mrs. Wright had given their evidence, appellant immediately apprised the court that he had expected Hurley to testify to a different transaction, and that, if the casé was postponed or continued, the witness Neel (to secure whom appellant had used diligence) would give testimony directly to the contrary of Hurley’s. This was confirmed by the affidavit of Neel attached to the motion for new trial. While appellant may not have brought himself strictly, within the statute permitting postponement or continuance after the trial has begun, yet we are of opinion that under the -peculiar circumstances of this case appellant was entitled to a new trial. Hurley was an interested witness, being under indictment for the identical offense ior which appellant was be: ing tried, and was properly treated as an accomplice witness by the court. Mrs. Wright was not a disinterested witness. Her husband was under indictment for complicity in the unlawful enterprise. Mrs. Hays was an interested witness, being appellant’s wife. So far as the record discloses, Neel was the only disinterested witness claiming to know anything about the particular transaction relied on by the fetate, and his testimony would have supported that of appellant’s wife and made a complete defense to the state’s ease.

The judgment is reversed, and the cause remanded.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    SANDERS v. STATE.
    No. 13907.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Denied April 8, 1931.
    R. M. Johnson and Paul S. Colley, Jr., both of Palestine, for appellant.
    T. B. Greenwood, Jr., Dist. Atty., of Palestine, and Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

E. O. Cox, deceased, was a peace officer. An attempt on his part to arrest appellant resulted in a difficulty. According to the state’s testimony, appellant cursed deceased and' struck him. Appellant and his witnesses testified that deceased cursed appellant and hit him over the head with his pistol. Appellant was finally placed in jail by deceased, but was released on bond on the following morning. The homicide occurred in a restaurant where deceased was sitting at the counter. Using a shotgun, appellant fired three times through the window of the restaurant from the outside. Each -of the -shots took effect, and resulted immediately in the death of deceased. According to the testimony of state’s witnesses, appellant went to a store some time prior to the homicide with another party for the purpose of securing a shotgun and some shells. Appellant’s companion purchased the shells and rented the shotgun. Thereafter appellant took the shotgun, entered a rent ear, and rode to the vicinity of the restaurant. Alighting from the car, appellant immediately opened fire Upon deceased. It was the further version of state’s witnesses that deceased was making no demonstration at the time, but was merely sitting at the counter ,in the restaurant with his face toward the window through which appellant fired. Appellant testified that -he armed himself and went to the restaurant for the pur'pose of having deceased explain to him why he had been threatening to kill him. He said that as he alighted from the car with the shotgun deceased made a motion as if to pull a pistol and he fired upon deceased for the purpose of protecting his life. Several witnesses for appellant testified that they had heard deceased threaten to kill appellant.

Appellant contends that the evidence is insufficient to show that he acted upon his malice aforethought in killing deceased. This contention cannot be sustained. We deem it unnecessary to enter into a discussion of the question.

Appellant’s motion for new trial was based in part on alleged newly discovered evidence. Attached to the motion were the affidavits of several witnesses whose testimony he claimed to be material. Again, it was alleged in the motion for new trial that a prejudiced juror had, without fault on the part of appellant, sat in the trial of the case. If any evidence was heard on the motion it is not brought forward for review, either by bills of exception or statement of facts. The order of the court overruling the motion for new trial recites that evidence was heard thereon. Where the order recites that the court heard evidence on the issue, this court must presume that the action in overruling the motion was correct and that the trial court acted upon evidence that was sufficient to justify his action. Harcrow v. State, 97 Tex. Cr. R. 274, 261 S. W. 1046; Hughey v. State, 98 Tex. Cr. R. 413, 265 S. W. 1047; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Sykes v. State, 109 Tex. Cr. R. 39, 2 S.W.(2d) 863; Rios v. State, 110 Tex. Cr. R. 68, 7 S.W.(2d) 535; Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that we should consider his motion for new trial and the affidavits attached thereto as.showing newly discovered evidence of a material character, and that he did not have a fair jury. ' We have examined the authorities cited by appellant and others.

It is admitted that unless we can consider tile affidavits attached to the motion for new trial as substantiating appellant’s contention, his claims are unfounded.

While it is unquestionably true, as appears from many of the early opinions, that this court declined to consider as evidence mere sworn pleadings or affidavits attached to the pleadings, some distinction was recognized in the case of Crouchette v. State, 99 Tex. Cr. R. 581, 271 S. W. 99, between affidavits attached to the motion for new trial, and those attached to other pleadings, based on the statutory direction, in effect, that the court in passing upon a motion for new trial might hear evidence by affidavit or otherwise. However, in the case last above cited, after discussing the question, the clear statement is made that even though there be affidavits attached to the motion for new trial, if the order overruling such motion recites that evidence was heard, this court will adhere to the proposition that the trial court thereby intends to announce that other evidence was heard beside the attached affidavits, and the presumption of correctness on the part of the lower court will be indulged. The same proposition is announced in Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167; Jones v. State, 103 Tex. Cr. R. 282, 280 S. W. 588; Purswell v. State, 107 Tex. Cr. R. 121, 294 S. W. 1107; Rios v. State, 110 Tex. Cr. R. 75, 7 S.W.(2d) 535. These authorities all seem to be against the contention of appellant, and we regard them as announcing the settled law of this state. Following them, we regret that we are unable to agree with appellant’s contention, and the motion for rehearing will be overruled.


text:
    HANEY v. STATE.
    No. 14005.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 1, 1931.
    Will S. Payne, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft of cattle; the punishment, confinement in the penitentiary for' two years.

It is alleged in the indictment that appellant “did then and there unlawfully and fraudulently take one head of cattle, belonging to Dr. A. Carmicheal, from the possession of the said Dr. A. Carmicheal, without the consent of the said Dr. A. Carmicheal, and with the intent then and there to deprive the said Dr. A. Carmicheal of the value of the same and to appropriate it to the use of him the said Ira Haney.” Appellant made no motion to quash the indictment, but now contends that its allegations are insufficient to show that it was appellant’s intent at the time of the taking to deprive the owner of the value of the property. We think it is clearly and directly alleged that appellant had the intent at the time of the taking to deprive the owner of the value of said one head of cattle. It is observed that the indictment follows the form laid down by Mr. Branch in his Annotated Penal Code (section 2549).

Possession of the stolen animal was alleged to have been in Dr. A. Oarmicheal. Appellant contends that the proof fails to support the allegation as to possession. Dr. Oarmicheal lived in the town of Granbury. He owned 650 acres of land, which was situated about 9 miles from town. Part of the land was in cultivation and some of it was used as a pasture for cattle belonging to Dr. Oarmicheal. Touching his visits to his farm, the witness said: “I live in the town of Granbury, Hood County. This pasture is about 9 miles from here; as to how often I go down to the pasture, I have been averaging about twice a week; and later about twice a month, selling, and working over there.”

John Moulder lived on the farm, having rented the cultivated land from Dr. Oarmi-cheal. Under his contract he was permitted to keep his (Moulder’s) cattle in the pasture. Dr. Oarmicheal testified that Moulder agreed to keep up the fences and to look after his (Carmicheal’s) cattle. In one place in his testimony on cross-examination, Dr. Oarmi-cheal testified that his cattle were in the care of John Moulder. On redirect examination he testified as follows: “John Moulder did not have any interest in my cattle or my pasture, in the world, except as a renter; he had a bunch of cattle in it, a few head.”

On recross-examination the witness testified: “Mr. Moulder had control, he controlled that pasture down there for me; I mean by that, he looked after my cattle in it. He had the custody of the cattle; they were in his custody.”

Upon being examined by the court, the witness said: “I had the management of these cattle altogether, except he was to keep up the fence; and see that none got out. That was his job. I had the management, the control, and care of those cattle.”

We quote further from the cross-examination of the witness: “It is true that John Moulder was down there and had this place rented fi-om me. He put his cattle in that pasture, and kept up the fences. I told him that I wanted him to keep the fences up, and not let the cattle get out. I had cattle to get out in the adjoining south pasture, and he had gone after them frequently, and what he was to do was what I wanted him to do in that respect. I sometimes went down there oftener than twice a month. He would look after the cattle; but as to his having the management, control and care of the cattle, he, of course, he would bring them'back when they got out, and fix the fence, and that was the contract with him.”

Appellant did not object to the charge of the court for its failure to submit the question as to whether the actual control, care, and management of the stolen animal was in Moulder. He insists that we' should hold under the facts that possession of the stolen animal was improperly alleged in the true owner, Oarmicheal. In other words, it is Ms position that the proof shows that Moulder had the actual control, care, and management of said animal. The facts are not unlike "those developed in the case of Yarbrough v. State, 107 Tex. Or. R. 127, 295 S. W. 927. In that case the indictment charged the theft of cattle alleged in possession of W. A. Bobbitt. It appears that Bobbitt had about five sections of land four miles from Paducah, in which town he lived. Part of the land was pasture, part in cultivation. The appellant’s father had farmed part of Bobbitt’s farm land for several years, being a renter on shares. Bobbitt had about 150 head of cattle in his pasture, which he from time to time employed the appellant’s father to haul feed to, and occasionally, when -away for any considerable time, he would get appellant’s father to look after the cattle. It was the general understanding and agreement between appellant’s father and Bobbitt that Bobbitt was to look after the fences and windmills. The appellant’s father testified to renting the farm land from Bobbitt on the halves and looking after the cattle when Bobbitt was away for any considerable length of time. It was not claimed that the appellant’s father had any right of disposal of the cattle, or to move them from place to place, or to do anything to or with them, ex.cept to see that they were fed, and, if they got out of the pasture, to bring them back. The trial court submitted the issue of management, care, and control to the jury. This court reached the conclusion that the jury were warranted in concluding that possession was properly alleged in Bobbitt. See, also, Hartman v. State,. 85 Tex. Cr. R. 582, 213⅛ S. W. 936. In the present ease, it might be that appellant would have been entitled to have the issue as to the actual control, care, and management submitted to the jury. He sought no instruction touching this matter, but contented himself with requesting the court to instruct the jury to acquit him. We feel unauthorized, under the facts, to sustain appellant’s contention.

The evidence is sufficient to support the conyietion. Dr. Oarmicheal missed his cow in March. He found her in appellant’s possession in July. Appellant pointed her out to the sheriff and said that she belonged to Dr. Oarmicheal, but declared that he had won her from the injured party’s son in a game of dice. The doctor’s son testified that he had never engaged in a game of dice with appellant, and said that he did not deliver the animal in question to appellant, and had not given him permission to take said animal. Appellant did not testify in his own behalf and offered no witnesses.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

As stated in the original opinion, the indictment charges that the property was fraudulently taken. This is in accord with article 1410, P. C., also Willson’s Cr. Forms, p. 327, form No. 640, and likewise with the form prescribed in Branch’s Ann. Tex. P. C. § 2423. The criticism in the motion is deemed untenable.

The contention that the failure to charge on the law of the possession of recently stolen property was fundamental error is likewise untenable. Assuming such a charge to have been appropriate, its omission was waived by the -failure to demand it at the time of the trial. See article 660, C. C. P. 1925.

The motion is overruled.


author: HAWKINS, J. .

text:
    LAWLEY v. STATE.
    No. 13299.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Robert Cralle, of Groesbeek, for appellant.
    A. A. Dawson, State’s Atty., of Canton, for the State.
   HAWKINS, J. .

Appellant was held in contempt by the judge of the Fifty-Fourth district court at Waco. From the judgment appellant gave notice of appeal, and entered into recognizance to abide the judgment of this court. On October 15th an opinion was delivered affirming the judgment. No briefs either for the state or appellant were furnished on original submission.

Appellant now presents a motion for rehearing in which is incorporated many things which might be appropriate- to submit in a hearing on the merits in the trial court, but which absolutely have no place in a motion for rehearing.

We are concerned with one thing only in the motion, and that is the proposition that this court is without jurisdiction of the. appeal. No doubt exists as to the correctness of the proposition. An appeal does not lie from a judgment of contempt. Crow v. State, 24 Tex. 12; Ex parte Kilgore, 3 Tex. App. 249; Carter v. State, 4 Tex. App. 165; Borrer v. State (Tex. Cr. App.) 63 S. W. 630; Borrer v. State (Tex. Cr. App.) 63 S. W. 1133; Long v. State, 82 Tex. Cr. R. 403, 199 S. W. 619, 620, in which the following language is ■ found: “From a judgment for contempt this court can give relief only on writ of habeas corpus when the relator is in custody.” Pegram v. State, 72 Tex. Cr. R. 176, 161 S. W. 458. Many other eases will be found collated in Texas Jurisprudence, vol. 9, under §§ 45 and 48.

Our former opinion is withdrawn, and the appeal is dismissed.


text:
    HAWKINS v. STATE.
    No. 14105.
    Court of Criminal Appeals of Texas.
    April 1, 1931.
    ; ■ Elmer L. Lincoln, of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder, punishment being five years in the penitentiary.

The indictment is sufficient. The record is here without bills of exception or statement of facts. In such condition nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, J. CHRISTIAN, J. MORROW, P. J. I/ATTIMORE, J.

text:
    FRIDAY v. STATE.
    No. 13740.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1930.
    Appeal Reinstated Feb. 25, 1931.
    Rehearing Denied April 1, 1931.
    W. E. West, of Canton, and Earl M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

The recognizance on appeal is fatally defective in failing to show that appellant had been convicted of a felony. If we understand the corrected recognizance brought forward in a supplemental transcript, appellant did no more than to draw a new recognizance and file it with the clerk. He and his sureties did not enter into a new obligation. It does not appear that the court was in session at the time. There is nothing in the record to show that said instrument was entered in the minutes of the court. We do not understand that a defective recognizance can be amended in the manner shown by this record. We quote article 835, C. C. P., as follows: “When an appeal is taken from the judgment of any court of this State, by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and the court to which appeal is taken determines that such bond ,or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond, on such terms as the court may prescribe.”

The' appeal is dismissed. Appellant is granted fifteen, days from this date in which to perfect his appeal.

PER CURIAM.

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

CHRISTIAN, J.

A sufficient appeal bond haying been filed,; the appeal is reinstated and the cause considered on its merits.

It is alleged in the indictment that ap? pellant “did then and there unlawfully in and upon J. G. White mate an assault with the intent then and there to murder the said J. G. White.” Appellant moved to quash the indictment on the ground that it was fatally defective in failing to allege that the assault was “made with malice aforethought.” The motion was properly overruled. The offense of assault with intent to murder is defined in article 1160, Penal Code, as follows: “If any person shall assault another with intent to murder, he shall be confined in the penitentiary not less than two nor more than fifteen' years.”

In Tucker v. State (Tex. Cr. App. 26 S.W. (2d) 638, it was held that under the present law a person may be convicted of an assault with intent to murder and sent to the penitentiary for a term of years when there is no specific requirement in the charge of the court that the jury must find as a necessary fact that the killing was upon malice aforethought. In the case of Paul King v. State (Tex. Cr. App.) 36 S.W.(2d) 490, delivered February 25, 1931, it was held that malice aforethought is not now a necessary element in assault to murder cases. Stated in another way, it was the holding of the court that it is not necessary to use “malice aforethought” in the indictment for assault to murder, or to define or submit said words upon the trial of an. assault to murder case.

It was uncontroverted that appellant shot J. G. White with a pistol and seriously injured him. According to the testimony of the state, the injured party was sitting on a bench in front of a meat market when appellant approached him with a pistol and said: “If you have anything to say, tell your story you d-d s- of a b-. I am going to kill you.” White replied: “What the devil is the matter with you, you s-of a b-, are you crazy?” Appellant said: “By G-— you heard what I said.” He then shot the injured party, who grabbed him and tried to take the pistol from him. A scuffle ensued. Finally an officer approached and disarmed appellant. Appellant testified, in substance, that J. G. White had wrecked his ■home; that his wife had told him that White had had sexual intercourse with her in a room over the bank; that upon his first meeting with White after learning of his conduct toward his wife he shot him because he had ruined him home. Touching his condition of mind at the time he fired upon the injured party, appellant said: “When I heard Jim White’s voice, it gave mg an ague, and I just couldn’t stand it and I walked to the door and ‘seen’ him and I walked and got my gun and shot him — it was more burden than I could stand.” Several witnesses for appellant testified that they had seen J. G. White and appellant’s wife together in the bank building appellant referred to in his testimony.

Appellant’s application for a continuance was predicated itpon the absence of his wife, it being alleged that she would testify, if present, that J. G. White had been having sexual intercourse with her for several months prior to the difficulty in which her husband shot him, and that she had advised her husband of their illicit relations on the day appellant assaulted the injured party. The application was properly overruled. Appellant admitted that he intended to kill the injured party, and testified that his mind was in such condition as to be incapable of cool reflection because of the fact that he had learned from his wife that the injured party had ruined his home. Under the holdings of this court it was not incumbent upon the state to prove that appellant acted upon his malice aforethought in order to sustain a conviction for assault with intent to murder, provided the assault was made with the intent to kill. Paul King v. State, supra. The absent testimony would have shed no light upon any issue, but would merely have tended to show an absence of malice aforethought at the time appellant made the assault.

Appellant objected to the charge of the court on several grounds, among them being that the court failed to„ define “malice aforethought,” and instruct the jury to acquit appellant of assault with intent to murder if they had a reasonable doubt as to whether he acted upon his malice aforethought. Another objection was that the court omitted from the charge an instruction covering the law of aggravated assault. Again, reference is made to Paul King v. State, supra. Giving effect to the holding of this court, we must hold that the exceptions were not well taken.

The judgment is affirmed.

PER CURIAM.

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

MORROW, P. J.

The foregoing opinion of -the Commission of Appeals has the approval of the majority of the judges of the Court of Criminal Appeals. In writing the opinion the Commissioner expressed the views of the court stated in the majority opinion in King v. State (Tex. Cr. App.) 36 S.W.(2d) 490, this day decided. The writer’s views, however, are in accord with those expressed in the dissenting opinion in the King Case, supra.

In' my judgment the court should have instructed the jury on malice aforethought. See dissenting opinion in King’s Case, No. 13819.

On Motion for Rehearing.

I/ATTIMORE, J.

Appellant moves for a rehearing upon four grounds persuasively stated in his motion. Same are that we erred in declining to hold the indictment defective; in not holding that the court should have charged on malice aforethought; in not holding that the court should' have submitted aggravated assault, and in'not holding that the case should have bepn continued because of the absence of the appellant’s wife.

This court has consistently held it not necessary to charge that the assault was with malice aforethought in an indictment for the offense of assault to murder, even under former murder statutes. Small v. State (Tex. Or. App.) 32 S.W.(2d) 860.

■ We have so recently expressed our views in regard to the lack of necessity under existing laws to submit the law of malice aforethought in the case of a trial of one for assault with intent to murder, where the averments of malice aforethought are not in the indictment, as to render it unnecessary for us to repeat such statements here. Paul King v.- State (Tex. Or. App.) 36 ,S.W.(2d) 490, opinion February 25,1931.

It is true that by the terms of our statute, article 695, O. O. P., an assault with intent to commit murder includes all assaults of an inferior degree, so that upon appropriate facts, where the charge is assault with intent to murder, it would be proper to submit the law of aggravated assault, yet when the assault was admittedly by shooting with a pistol, and the accused himself testify that he intended by such assault to kill the party shot by him, we are not able to see where the trial c.ourt erred in refusing to submit the question of aggravated assault. It has never been held that an issue should be submitted by the judge which is not raised or supported by some testimony in the case. We see no good to come from an attempt to analyze or reconcile, with present holdings, the decisions rendered by this court when manslaughter was in our statute, and when convictions were permissible for aggravated assault in cases when the indictment charged assault to mur'der, upon evidence which showed a voluntary assault under circumstances which indicated a mind agitated by such emotion' as to render it incapable of cool reflection. Manslaughter has been eliminated by statute; and a homicide now — which would formerly have been but manslaughter — is murder. Perforce then, an assault less than fatal under present laws, which have made murder of what was manslaughter, if shown to be upon such facts as would make it now murder had death ensued, would be an assault to murder. This court cannot retain offenses no longer in the law, nor create them when they have no other legal ground or justification for existence than our ipse dixit.

Examining the remaining contenfion, we observe that the application for continuance appears properly refused, not only upon the ground discussed in the original opinion, but also because no diligence was shown to secure the presence of the absent witness. As a matter of fact, discussion of the proposition is needless, as we fail to find any bill of exception in the record taken to the refusal of the continuance. ■

The motion for rehearing will be overruled.


author: LATTIMORE, J.

text:
    LOVELADY v. STATE.
    No. 13972.
    Court of Criminal Appeals of Texas.
    March 18, 1931.

      Fairchild & Redditt and R. C. Musslewhite,. all of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

We find much sharp controversy in the facts as to whether an animal appropriated and sold by appellant was a heifer or a steer; the solution of this question relating itself materially to the question of guilt. The alleged theft was committed quite a while pri- or to the trial, but on the trial a hide was brought to the courthouse in a sack. The hide seems to have been exhibited in the courtroom. State witnesses testified it was a hide sold by appellant to a witness about the time of the disappearance of the alleged stolen animal, and that it was the hide of a bull yearling. Appellant had engaged to sell, about the time of the occasion in question, a heifer. He delivered the meat of an animal purporting to be that of a heifer which he had engaged to sell.

After the conclusion of the argument, and by agreement of both sides, the jury were permitted to view and examine the hide referred to. It is not clear whether they examined it alone or in the presence of any outside party. That the result of their examination of said hide was vigorously debated in the jury room is apparent. One juror, who had been engaged rather extensively in the business of skinning cattle and selling their meat and hides, affirmed positively in the jury room that as a result of his examination he was able to tell his fellow jurors that the hide in question was off a bull. This was admitted by the juror upon the hearing of the motion for new trial, and was affirmed by other jurors, who expressed their deference to the opinion of said juror in stating that this was a bull hide, and stated same had weight with them in arriving at that conclusion. In addition to the above, it was set. up in the motion for new trial that the jury conversed with other persons in violation of law. As we understand the record, the room in which the jury were kept was contiguous to the jail in which were a number of prisoners. Several jurors affirmed that the same juror who asserted his ability to distinguish the sex of the slain animal by his examination of said hide, talked with a woman prisoner in the jail while the jury were in retirement. The juror referred to admitted that he talked with the woman, but said she merely asked him if he would make her bond, and that he told her he would see about it after they were discharged. Other jurors affirmed that they, saw him talking to her five or ten minutes. Still other jurors affirmed that the same gentleman, while on the jury, expressed his opinion of a certain state witness who was known to him to be a truthful upright man; that he said of one of the witnesses for the defense that he was a dope fiend. This court cannot lend its sanction to a verdict and judgment in a case where it appears that the statutes against the jury receiving evidence after their retirement and forbidding them to converse with any person regarding the case so plainly appear to have been violated. The authorities upon, these matters are numerous and well understood. Bouldin v. State, 8 Tex. App. 335.

Where it appears upon the hearing of the motion for new trial that a juror has conversed with outside persons, the burden is upon the state to show that such conversation was not regarding the case under consideration and was not of such nature as that injury might result. This record appears plain upon the proposition that the jury received testimony after their retirement of such nature as to vitiate the verdict. We are not satisfied that the state discharged its burden to show that the conversation with outside parties was not about the case.

The judgment will be reversed, and the cause remanded.


author: LATTIMORE, J. MORROW, P. J.

text:
    ORTIS v. STATE.
    No. 13570.
    Court of Criminal Appeals of Texas.
    Oct. 29, 1930.
    Rehearing Denied April 1, 1931.

      John Gauntt and Frank B. Tirey, both of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, two years in the penitentiary. '

A group of ■ officers went to appellant’s house and found him at home. They were armed with a search warrant, but without telling appellant they had same, he was ashed if he would permit them to search the house, and, according to the testimony of the state, replied that it was all right. One of the officers wished to know if it was all right with his wife, and appellant asked her in Spanish, and then informed the officers that it was all right.with his wife. The search revealed a still and a large quantity of intoxicating liquor.

There are two bills of éxeeption, one complaining of the admission of the testimony of the officers upon the ground that the affidavit for search warrant was insufficient, same having been made upon information and belief. We deem it not necessary to go into the merits of a discussion of this objection, or an analysis of the contents of the affidavit for search warrant; there being no dispute over the fact that appellant gave the officers permission to enter and search his premises.

The other bill of exceptions complains of the failure of the court to submit the law of circumstantial evidence. The still and liquor were in appellant’s house at the time of the search. He was present, and no other person was there save appellant’s wife and some small children. We do not think it was necessary for the court to charge on circumstantial evidence. Johns v. State, 100 Tex. Cr. R. 65, 271 S. W. 926; Jenkins v. State, 99 Tex. Cr. R. 550, 270 S. W. 852.

No error appearing, the judgment will be affirmed.

HAWKINS,- J., absent.

On Motion for Rehearing.

MORROW, P. J.

That the evidence is sufficient to show that the premises were searched with the consent of the appellant, that is, that he waived the search warrant, is combated in the motion' for rehearing.

Roberts, a peace officer, gave testimony in substance as follows: He went to -the home of Ortis, who came to the door and permitted him to enter. Roberts and Holt, the district attorney, were together. They said to Ortis: “We want to look the place over.” Ortis replied, “All right.” Holt asked Ortis if he had any objection to their searching the place, and Ortis replied that he had none. The officer observed the appellant’s wife lying on the bed in the room and requested the appellant to ascertain from her whether she had any objection to .their searching the place. The appellant spoke to his wife in Spanish. She made some reply which the officer did not understand. Ortis said “Go ahead”; that it would be all right for the parties to search his place. After obtaining permission to search the place, without disclosing the fact that they had a search warrant, Roberts gave the search warrant to the appellant. Another witness gave substantially the same testimony touching the permission to search the premises as did Roberts and Holt. No objection is shown to have been made to the search, either by the appellant or his wife. In the house there were found a 300-gallon copper still running, a number of barrels of mash, and about 17 gallons of whisky. Whisky was running from the still. There were other utensils bearing upon the intent. The appellant introduced no testimony.

We are constrained to regard the testimony such as to show the appellant’s consent to the search of his premises under circumstances which would constitute a waiver of his sub- . sequent right to complain of the absence of a search warrant or of the faults therein. There are numerous precedents upon the subject. Among them are Gonzales v. Sutie, 113 Tex. Cr. R. 122, 18 S.W,(2d) 618; Williams v. State, 112 Tex. Cr. R. 307, 17 S.W.(2d) 56, 57; Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202; Bannister v. State, 112 Tex. Cr. R. 158, 15 S.W.(2d) 629; McPhail v. State (Tex. Cr. App.) 26 S.W.(2d) 218; Cornelius on Search and Seizure (2d Ed.) p. 67, §§ 20-23;. also p. 80, § 28, notes.

The motion for rehearing is overruled.


author: DUNKLIN, J.

text:
    SHADE v. ANDERSON et al.
    No. 12438.
    Court of Civil Appeals of Texas. Fort Worth.
    March 14, 1931.
    John B. Rhea and Robert Carswell, both of Wichita Falls, for appellant.
    Kay & Akin, of Wichita Falls, for appel-lees.
   DUNKLIN, J.

A. A. Anderson entered into a written contract with the state of Texas, represented by the state game, fish, and oyster commissioners, to construct a duplex superintendent’s residence in Archer county in accordance with the provisions of the State Statutes and according to the specifications and plans annexed to and made a part of the contract. At the time the contract was entered into, Anderson also furnished and delivered to one of the commissioners a bond, which will be hereinafter set out.

Fred E. Shade was employed by Anderson’s foreman and representative as a carpenter to do certain work on the building, and, while engaged in that service, he sustained an injury, and this suit was instituted by him to recover damages for that injury.

The suit was against A. A. Anderson, who it was alleged executed the bond as principal, and Harry Shack, W. T. Martin, J. W. Nor-wood, H. B. Hines, and G. W. Norwood, as sureties on the bond. A claim of liability against all of the defendants was based upon the terms of that bond.

It was further alleged, in substance, that, independently of the bond, the defendant Anderson was liable to the plaintiff for damages as a result of the injuries sustained by the plaintiff by reason of the-fáct that plaintiff was injured as the result of the negligence of one of Anderson’s employees and while plaintiff was working on the building as a carpenter under an employment by Ander,-son. The charge of negligence was based upon allegations in substance that, while plaintiff was working at the front and side of the house, cutting in a door frame, a piece of building timber three feet long, two inches thick, and four inches wide fell from the roof of the house, striking plaintiff’s • head and severely injuring him, that the piece of timber had been negligently and carelessly left on the roof without securing it, by one of Anderson’s employees, and that the employee so leaving it knew or should have known, in the exercise of- ordinary care, that the piece of timber would likely fall from the roof and endanger the safety of employees working around the side of the house, as plaintiff was working when he was injured, and that plaintiff did not know of its presence on the roof until it hád fallen and struck him on the forehead.

In answer to special issues, the jury found that plaintiff sustained the injury alleged in his petition, including paralysis of one of his sides; that the same was caused by the negligence of one of the defendant Anderson’s employees; that such negligence was the proximate cause of plaintiff’s injury; and that the sum of $3,750 would be a reasonable compensation for the injuries which plaintiff sustained.

Judgment was rendered in plaintiff’s favor against the defendant Anderson for the sum of $3,750, the amount assessed by the jury, but denying plaintiff any recovery against the other defendants, to wit, Harry Shack, J. W. Norwood, H. B. Hines, W. T. Martin, and G. W. Norwood. It further appears from the judgment that plaintiff had already taken a nonsuit as to defendants Harry Shack and J. W. Norwood. Erom a denial of recovery against the other sureties, plaintiff appeals.

Article 5160 of the Revised Statutes of 1925 reads as follows: “Any person, firm, or corporation entering into a formal contract with this State or its counties or school districts or other subdivisions thereof or any municipality therein for the construction of any public building, or the prosecution and completion, of any public work, shall be re; quired, before commencing such work, to execute the usual penal bond, with the additional obligation that such contractor shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract. Any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the State or any municipality on the bond of the contractor, find to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claims and judgment of the State or municipality. If the full amount of the liability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due the 'State or municipality, the remainder shall be distributed pro rata among said interven-ers.”

Article 5161 gives the right to a creditor of the contractor to institute suit on the bond in the. absence of any suit by the payee of the bond.

Following is the bond introduced in evidence by the plaintiff as the bond sued on:

“Know all men by these presents:
“That I, Á. A. Anderson, of Wichita County, and the State of Texas, as principal, and H. B'. Hines and J. W. Norwood, of Wichita County, and State of Texas, as surety, are held and firmly bound unto the State of Texas, and twenty five represented by the Game, Fish and Oyster Commissioner, in the penal sum of Two Thousand Seven Hundred ($2,-700.00) Dollars, lawful money of the United States, to be paid to the said State of Texas, for which sums of money well, and truly to be paid, we bind ourselves, our heirs, successors, executors and administrators, jointly and severally, firmly by these presents.
“Sealed with our seals and dated this 1st day of October, A. D. 1927.
“The condition of this obligation is such that if the said bounden principal, A. A, Anderson, shall in all things well and truly perform all the terms and conditions of the foregoing- contract, to be by him performed, and within the time therein mentioned, and shall pay all lawful claims fop labor performed and material furnished in and about the construction of said house, and shall have paid and discharged all liabilities for injuries which have been incurred in and about the said construction, under the operation of the Statutes of the State, then this obligation is to be void; otherwise to be and remain in full force and virtue.
“Done in the presence of:
“Harry Shack [Seal.J
“W. T. Martin [Seal.]
- - H. B. Hines [Seal.J
“— - J. W. Norwood [Seal.]”

The bond was more onerous than that provided by the statute, in that one of the obligations embodied in it was that the principal would discharge “all liabilities for injuries which have been incurred in and about the said construction.” However, that fact would not of itself be sufficient to enable the defendants to escape liability, if, as shown in the record, it was executed voluntarily by the defendants, and if it was otherwise valid as a common-law obligation. Watkins v. Minter, 107 Tex. 428, 180 S. W. 227; Sullivan v. City of Galveston (Tex. Civ. App.) 17 S.W.(2d) 478; 5 Cyc. pp. 751, 752.

Nor could there be any valid objection to the binding effect of the bond that it was not signed by Anderson, the principal, since the evidence shows without .dispute that he delivered it with the intention that it should become effective. 10 Tex. Juris, par. 152; 13 C. J. p. 305.

And, if the principal was bound by the bond, then the sureties could not escape liability merely on the ground that the bond was not signed by the principal. 21 R. C. D. p. 964; 50 C. J. p. 30.

In 10 Texas Juris par. 280, p. 483, .this is said: “To entitle a third persomto sue on a contract, it must have been made for his ■benefit as its object, and he must be the party intended to be benefited. It is not necessary that he-be.named in the contract, however,' nor even that the particular person to be benefited be known when the contract v?as made; it is sufficient if a third person be in some measure pointed out and designated as the one intended. The person for whose benefit the contract is made must accept it. But a formal acceptance is not necessary; demanding payment of an indebtedness assumed by the promisor or bringing suit upon the contract is a sufficient acceptance.” ■

The liability of the defendant Anderson for the negligence of his servant and by reason of which the judgment was rendered against him was wholly independent of the bond, and therefore whether or not he was also hound by the bond is wholly immaterial.

However, the alleged liability as against the other defendants depended wholly upon the terms of the bond as alleged in plaintiff’s petition; and there was a fatal variance between the bond offered in evidence by the plaintiff, set out above, and the terms of the bond alleged in plaintiff’s petition and on which a recovery was sought. In plaintiff’s petition it was specifically alleged that that bond was signed by the defendants “Harry Shack, W. T. Martin, G. W. Norwood, H. B. Hines and J. W. Norwood, as sureties, with the said A. A. Anderson as principal therein,” and that the bond was “in the sum of Twenty Seven Hundred Twenty Five and 00/100 ($2,725) Dollars.” It was further alleged that a copy of the bond was attached-to the petition as Exhibit A. The exhibit so attached also recites that it was given in the penal sum of $2,725, and the only signers thereto are Harry Shack, W. T. Martin, H. B. Hines, and G. W. Norwood; J. W. Norwood’s name being omitted. As shown in the copy of the bond offered in evidence, set out above, the penal sum named 'is $2,700, and the names signed thereto were as follows: Harry Shack, W. T. Martin, H. B. Hines, and J. W. Norwood; G. W. Norwood’s name being omitted.

In Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398, in an opinion by.'Chief Justice 'Stayton, the following is said: “It is elementary that one suing upon a contract must recover upon the contract alleged, or not at all. If he proves a contract essentially different from that alleged, he must fail. Gammage v. Alexander, 14 Tex. 418; Parker v. Beavers, 19 Tex. 411; [East Line & R. R:] Railway v. Scott, 75 Tex. 84, 12 S. W. 995.”

In Shipman v. Fulcrod, 42 Tex. 248, the following was said:

“It is a well-settled rule of pleading that the facts constituting the cause of action must be set forth with substantial accuracy. In Gammage v. Alexander, 14 Tex. 418, it is said to be a rule of pleading, as old as the science itself, that a contract, when sued upon, must be correctly stated, and if the evidence differ from the statement, the variance is'fatal, to the action. (Roseborough v. Gorman, 6 Tex. 314; Mims v. Mitchell, 1 Tex. 443; Hall & Jones v. Jackson, 3 Tex. 305.)
“It is equally well settled that allegations' which are descriptive of the identity of the writing set forth, such as names, sums, magnitude, dates, durations, terms, and the like, . must, in general, be precisely proved. (1 Greenleaf’s Evidence, 58; 1 Starkie’s Evidence, 332, 373, 374.)”

In New Amsterdam Casualty Co. v. Harrington (Tex. Com. App.) 290 S. W. 726, 727, it is said: “Our statutes provide that the judgment of the court shall conform to the pleadings, the nature of the cause proved, and the verdict. While the judgment in this case conforms to the pleadings and verdict, it does not conform to the nature of the cause proved. The proof is at such variance from ■the cause of action alleged that the court would not be warranted in sustaining the judgment. Western Union Tel. Co. v. Smith, 88 Tex. 9, 28 S. W. 931, 30 S. W. 549; Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567; Bank of Garvin v. Freeman, 107 Tex. 523, 181 S. W. 187.”

See, also, 21 R. C. L. p. 608, par. 152; 49 Corpus Juris, p. 804, par. 1187.

In view of that manifest variance, the trial court did not err in denying plaintiff a recovery . against any of the sureties on the bond who were not dismissed from the suit; and accordingly all assignments of error addressed to that ruling are overruled, and the ¡judgment of the trial court as to those sureties is affirmed. The judgment rendered against the defendant Anderson is left .undisturbed ; he having failed to prosecute any appeal therefrom and no complaint being made thereof by him in this court.


author: LOONEY, J.

text:
    THE PRÆTORIANS v. KRUSZ.
    No. 10899.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1931.
    Rehearing Denied March 28, 1931.

      T. W. Davidson, of Dallas, for appellant.
    Leake, Henry, Wozencraft & Frank, of Dallas, for appellee.
   LOONEY, J.

The Praetorians, a fraternal benefit society, with its home office in Dallas, managed generally by a body of officers called the “Supreme Senate,” arid maintaining local councils in charge of an officer known as “Worthy Recorder,” issued to William J. Krusz a certificate or policy of life insurance, agreeing to pay the sum of $5,000 to Mae Krusz, wife of insured, immediately upon receipt of satisfactory proof of his death while the certificate or policy was in force.

Insured died on January 18, 1930, satisfactory proof of death was made, and, on payment being refused,' this suit was instituted by the beneficiary to recover upon the policy.

The defendant contended below, and contends here, that, at the time of death, the policy had lapsed by reason of the failure of insured to pay monthly dues, or premiums, ac- ■ cording to the contract. Plaintiff replied that the dues were paid soon after being delinquent, were accepted and retained by defendant, the forfeiture was waived, and thereafter, by certain unequivocal acts, defendant recognized the continued validity and existence of the insurance contract, and estopped itself to insist upon forfeiture as a defense to the suit.

The case was tried before the court, without a jury, resulting in judgment in favor of plaintiff for the full amount of the policy, with interest; from which this appeal is prosecuted.-

The pertinent facts relied upon by the parties, in support of their respective contentions, will be found in the following statement: The certificate or policy provides that: “The insured has the privilege of paying dues hereunder monthly. * * * If the insured elects to pay monthly, such payments shall be due on the first day of each and every calendar month and must be paid by the twentieth of each month. * ⅜ * Failure to make any payment as provided shall automatically lapse this certificate. * * * Upon lapse of this certificate by failure to pay dues, the same may be reinstated by submitting satisfactory evidence of good health and insur-ability and upon payment of all arrears, together with dues for the current month. * * * change, modifications or alteration of this certificate shall be made unless endorsed thereon by the president, vice-president or the secretary of the Praetorians. The Praetorians shall not be bound by any promise or representation made by any person unless made in writing by one of said officials. It is agreed by the insured holding this certificate that the certificate, charter or articles of incorporation, the constitution and laws of The Praetorians, and the application herefor, and the medical examination signed by the appellant, with all amendments to each thereof, shall constitute the agreement between The Praetorians and the insured.”

The pertinent provisions of the constitution and laws of the order are these:

Section 8 of article 17, in so far as is material, reads: “Each council shall annually, at the first meeting in February, nominate a Worthy Recorder, whose nomination shall be certified to the Board of Directors. * * * The Worthy Recorder shall collect all dues and keep a record of the proceedings of the council. ’ * . * * Sec. 9, Worthy Recorders must close all collections not later than 12 o’clock noon of the twentieth day of each month. The Recorder must send in his report to the Supreme Secretary without delay with a draft, money order or cashier check to cover. ⅜ * ⅜ ”

Section 2 of article 20 reads: “All dues shall be payable for each month on or before the first day thereof and must be made not later- than the 20th. Sec. 3. It shall be the duty of every member to see that his dues are paid in time to his Worthy Reeofder. * * * Members failing to pay dues on time in accordance herewith shall lapse immediately without notice, and all rights, privileges and benefits shall cease at once, except as to any paid up and extended values to which they may be entitled as hereinafter provided. * * *»

Section 1, art. 26, on the subject of rein-statements, provides: “Recorders have no authority to reinstate members who have lapsed. * * * Sec. 2, Any member whose dues shall not be paid as herein provided shall immediately lapse. To effect reinstatement when lapsed for less than 30 days, a member, while in good health, may deposit with his Worthy Recorder all unpaid dues including those for the current month, and when the Worthy Recorder has satisfied himself that the member has been in continuous good health since the day of lapse, and when the Supreme Senate has received and accepted such dues the reinstatement shall be effective, but not otherwise. Sec. 3, To •effect reinstatement, when lapsed for more than 30 days and less than six months, a member shall furnish a certificate of health signed by him and a like certificate of a medical examiner on form prescribed by the Supreme Senate, and shall pay to his Recorder all dues, including those for the current month. Reinstatement shall not be effective until such statements have 'been approved by the president or secretary, and notice thereon mailed to the member.”

The record discloses that insured failed to pay dues for November, 1929, and the policy automatically lapsed; he was not reinstated during the month of December, nor did he pay dues during that month; on January 7, 1930, he became ill with appendicitis, on the 13th was taken to a hospital for an operation, on the 14th he was operated upon, but, prior thereto, his brother-in-law, James G. Muns-ford, at the instance of the beneficiary, wife of insured, paid the delinquent dues for both November and December, at the local council of the Praetorians, of which insured was a member; the dues were received by the local recorder ; a receipt therefor in the usual form was given; no question was asked as to the condition of health of insured; no demand was made for certificates of health, as provided in the by-laws; and, not being asked in regard to the matter, Munsford volunteered no statement as to the illness of insured.

On January 15, 1930, the day following receipt of these dues, the recorder mailed to insured the customary notice, demanding payment of the January dues, not then delinquent, as follows:

“Dallas, Texas January 15, 1930
“Worthy Prmtorian:
“Please send Praetorian dues for the month of January, 1930, and oblige. Payments are due on the first and should b'e paid before the 20th of each month.”

In compliance with this demand, Muns-ford, for insured, paid these dues to the recorder on January 18, 1930, prior to but on the day of the death'of insured.

The method of handling lapses and rein-statements is disclosed somewhat by the fact that the certificate in suit was automatically lapsed in February, March, April, May, June, July, August, September, and October, 1929, for failure of insured to pay dues promptly, but, as they were paid in each instance within a few days after the lapse, the recorder, it seems, accepted payment without inquiry or any showing by insured as to his continuous good health. Mr. Rogers, the recorder, testified that, when a member is more than 30 days delinquent, his instruction was to demand health certificates, and as a rule he complied, but not uniformly, that in the rush of business sometimes the matter was overlooked; that after a lapse, he endeavored to induce the member to reinstate, his instruction being to collect all money due the order; that he knew when he accepted payment of November and December dues, without demanding health certificates, the policy had lapsed; and thereafter, on January 15, 1930, mailed to insured notice demanding payment of dues for the month of January, 1930, collected same, and after the death of insured reported the collections and remitted the amount, $15, to the home office. The dues were retained by appellant, and no effort was made to return same, until paid into the registry of the court, after the institution of this suit.

As before stated, these facts constitute the basis for the respective contentions of the parties.

The contentions of appellant may be reduced to these: That the certificate sued upon having lapsed for nonpayment of dues, insured was ineligible for reinstatement during his final illness; that the recorder of the local council, of which insured was a member, was not authorized to revive the dormant contract; that no act of his performed in line of duty could be given the effect of waiving the forfeiture; and. that, under the facts, appellant is not estopped to insist upon same as a complete defense to the suit.

It is obvious that Worthy Recorder Rogers was appellant’s only agent with authority to collect current and delinquent dues from members, and to demand and receive, in the instances provided in the laws of the order, health certificates, as a condition precedent to the reinstatement of a lapsed certificate ; therefore, when Munsford paid the delinquent dues for insured, Rogers could have demanded health certificates, and was not compelled to accept the arrearages in the absence of a showing as to the then condition of the health of insured; however the delinquent dues were accepted by the recorder, with full knowledge that the policy was in a lapsed condition. The recorder was not only the clerk of the local council, but appellant’s exclusive agent within the scope outlined above; that is, was authorized to represent the order in collecting dues, and in demanding health certificates as a condition precedent to reinstatement. It follows, therefore, that the Pnetorians, through its said agent, was charged with the knowledge he acquired, and was hound toy the acts he performed, within the scope of this exclusive agency.

It cannot be said, in any true sense, that the recorder' reinstated the lapsed policy. Having waived, as he was authorized to do, the presentation of health certificates, having accepted payment of delinquent dues, without inquiry as to the health of insured, he was left without discretion in the premises ; reinstatement followed as a matter of course and of right, and not as a matter of grace, or of discretion on the part of the recorder, or any other officer of the order. If health certificates had been demanded 'and furnished by insured, when the dues were tendered, the recorder, in such instance, should have reported same, either to the president or secretary of the order, as provided in section 3 of article 26 of the Constitution, as follows: “Reinstatement shall not be effective until statements (certificate of health signed by insured and a like certificate signed by a medical examiner) have been approved by the president or secretary, and notice thereof mailed to the member.” However, having waived the production of health certificates, there was nothing to report and nothing to be considered by either the president or secretary; hence action under this provision of the laws was obviated.

After accepting payment of the delinquent dues, the recorder mailed the customary notice, demanding of insured payment of current dues for January, 1930; and in compliance with the demand, Munsford, for insured, made payment prior to, but on the day of, insured’s death.

In view of this situation we hold that, by collecting the arrearages for November and December, with full knowledge of the forfeiture, without a showing as to the condition of insured’s health, and thereafter, by demanding and collecting current dues for January, 1930, and by retaining the dues collected, delinquent and current, appellant, by each and all of the acts recounted, waived the forfeiture, recognized the continued existence of the policy, and is now estopped to insist upon forfeiture as a defense.

Analogies will be found to different phases of the case, and the rules of law applicable thereto were announced, in the cases cited below, the leading one, however, being that of Bailey v. Sovereign Camp W. O. W. (116 Tex. 160, 286 S. W. 456, 457, 288 S. W. 115, 47 A. L. R. 876), decided by the Supreme Court, presided over by special judges, reversing the Court of Civil Appeals (277 S. W. 782). This case is directly in point on the facts; delinquent dues were paid to the clerk of the local lodge during the period of the last illness of the insured, as in the present case; at the time of payment, no representation was made by the insured, and no demand was made upon him for a certificate or showing as to the true condition of his health, just as in the case at bar, and the clerk of the local lodge was without any knowledge whatever as to the condition of insured’s health, as is true in the instant ease. The Texar-kana court denied recovery, holding that, under the facts, there existed neither a waiver of forfeiture nor an estoppel to insist upon that defense. We will quote liberally from this case, because, in our opinion, the cumulative effect of the case law of this state is reflected thereby, and .that the doctrine announced rules this case. Among other things, the court said:

“ * * ⅜ Upon receipt of said arrearages and. dues on June 12,1922, the defendant order did not have to accept same, and Bailey had no absolute right to make such payment after the expiration of the 10-day period without also furnishing a written statement and warranty of good health and nonuse of -intoxicants as-provided in section 66, subd. (b), of said by-laws.
“This brings us to a well settled rule in the law of insurance, which is as follows: When, under a policy of insurance, a forfeiture has been worked and the insurer has knowledge of the existence of facts which constitute the forfeiture of the certificate or policy, any unequivocal act done after the forfeiture has become absolute, which recognizes the continued existence of the certificate or policy, or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof. See Calhoun v. The Maccabees (Tex. Com. App.) 241 S. W. 101, and eases therein cited. * * *
“In this case it is undisputed that the insurer did have knowledge of the facts constituting the forfeiture. When Bailey failed to pay his assessment during the month of May and within 10 days thereafter, the local clerk at Fort Worth knew that the dues had not been paid, and that Bailey’s benefit certificate had become forfeited, and that reinstatement could only become effective by the furnishing of a written statement and warranty, as provided in the by-laws, in addition to the payment of said dues. The clerk of the local camp was also the agent of the defendant order, and the order is charged with the knowledge secured by him in the scope of his agency, and knowledge and notice acquired by the local clerk in the performance of his duty are as a matter of law imputed to the principal. See Calhoun v. The Maccabees, supra, and authorities therein cited. Therefore the defendant order was charged with the knowledge imputed to it by law that Bailey had forfeited his certificate and he had not made payment for reinstatement within the 10-day period. ⅜ ⅞ *
“This brings us to the question as to whether or not there was an unequivocal act of the' insurer recognizing the existence of the policy and 'benefit certificate, and which, was wholly inconsistent with the forfeiture. The defendant order accepted the dues and premium upon Bailey’s certificate on the 12th day of June, 1922, and accepted same without requiring a written warranty, a thing they were not forced to do. Nothing could be more inconsistent with the forfeiture of an insurance policy or certificate than the. acceptance and retention of the premium paid for the protection afforded by the policy, as was done in this instance. * * ⅞ ”

Also see Equitable Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625; Sovereign Camp v. Putnam (Tex. Civ. App.) 206 S. W. 970; Calhoun v. Maccabees (Tex. Com. App.) 241 S. W. 101, 103; Maccabees v. Johnson (Tex. Civ. App.) 273 S. W. 612; Sovereign Camp v. Hines (Tex. Civ. App.) 273 S. W. 927 ; Stone v. Brady (Tex. Civ. App.) 2 S.W.(2d) 538; Home Insurance Co. v. Puckett (Tex. Civ. App.) 17 S.W.(2d) 849.

It is insisted, however, that the receipt given by the local recorder to Munsford, when the delinquent dues were paid, gave notice to insured that the payment would not be effective for reinstatement unless he was at that time in good health. The receipt had printed on the reverse side the following language: “If any part of the payment for which the receipt is issued is for dues more than thirty days past due, it is received upon the condition and agreement that he or she has no claim whatever upon the order until said member’s application for reinstatement is accepted by the Supreme Senate (home office). If not accepted, then the amount of this receipt is to be refunded to the member.”

It was riot shown that the attention of either Munsford, the insured, or the beneficiary was called to this language, or that either assented thereto; in fact, Munsford testified that he knew nothing of its existence until after the death of insured. However that may be, the recorder, having waived the provision requiring the presentation of health eertificatés as a condition precedent to reinstatement, thereby waived the only provision of the contract that would have authorized the imposition of the condition printed on the reverse side of the receipt, and, being subsidiary to the main provision, was also waived.

In view of the way appellant administered the provisions of its laws, relating to forfeitures and reinstatements, as revealed by the record, we are constrained to believe that, had Krusz recovered from his illness, forfeiture of the policy would never have been mentioned ; hence we adopt, as pertinent, language used by the Supreme Court in a similar situation in the Bailey Case, supra; the court said: . “Insurance companies cannot so gamble on the lives of their policy-holders. Having accepted the wager in accepting the premium, the order was bound by the consequences.”

After examining appellant’s authorities and carefully considering all assignments, we have concluded that no error is shown, and that the judgment of the trial court should be affirmed.

Affirmed,