author: NORVELL, Justice. GREENHILL, Justice

text:
    FIRST STATE BANK OF WICHITA FALLS, Petitioner, v. OAK CLIFF SAVINGS & LOAN ASSOCIATION, Respondent.
    No. A-10273.
    Supreme Court of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 17, 1965.

      Malone, Seay & Gwinn, Dallas, for petitioner.
    Coke & Coke, Jere D. Turner with firm, Dallas, Bailey & Williams, Lawrence R. Maxwell, Jr., with firm, Dallas, for respondent.
   NORVELL, Justice.

Upon proper motions, the trial court rendered summary judgment in favor of Oak Cliff Savings & Loan Association against American Bank & Trust Company for the sum of $6,337.67. The American Bank was awarded a recovery over against First National Bank in Dallas, which likewise recovered from First State Bank of Wichita Falls. The bank last named was also awarded a recovery over against Perry T. Grisham and Fredda B. Grisham. The actual parties at interest in this litigation are Oak Cliff Savings & Loan Association and First State Bank of Wichita Falls. The Court of Civil Appeals affirmed. 379 S.W. 2d 952.

In essence, the petitioner, First State Bank of Wichita contends that the judgments below should be reversed (1) because the negligence of the respondent, Oak Cliff Savings & Loan Association, occasioned or contributed to the payment of the proceeds of a check to Fredda Grisham (this was asserted defensively and by action over against Oak Cliff), and (2) because Fredda Grisham occupied the position of an “impostor in law” with reference to Oak Cliff, the drawer of the check, and hence the loss should be borne by the savings and loan association and not by the Wichita Falls bank, which paid out the money to the so-called impostor.

In our opinion these contentions cannot be sustained and accordingly we affirm the judgments of the courts below.

The Facts Disclosed by the Summary Judgment Evidence

This cause resulted from a swindle perpetrated by Mrs. Perry T. (Fredda) Gris-ham, who, in some way, learned that there was a sum of money on deposit at the Oak Cliff Savings & Loan Association at Dallas to the credit of Flora Grisham, Independant Executrix of the Estate of I. T. Grisham. Fredda Grisham was a resident of Wichita Falls, Texas, where Mrs. Flora Grisham also resided. On May 31, 1961 Fredda Grisham appeared at the First- State Bank of Wichita Falls and represented that she was Flora Grisham; that she wished to withdraw such money as she might have on deposit with the Oak Cliff Savings & Loan Association and deposit the same with said First State Bank of Wichita Falls. She stated that she did not remember the exact amount on deposit with the savings and loan association; so a draft was prepared directed to Oak Cliff in favor of the Wichita Falls bank. This draft was signed by Fredda Grisham as “Flora Grisham, Independent Executrix of the Estate of I. T. Grisham” and no certain sum was set forth therein. The word “balance” appears on the face of the draft and the collection letter stated, “Draft on you by Flora Grisham, Independent Executrix of the Estate of I. T. Grisham. Please remit through First National Bank in Dallas — Balance.”

It is not the practice of savings and loan associations to honor drafts as such and, accordingly, this draft was not paid. The savings and loan association, however, prepared a check dated June 2, 1961 drawn on the American Bank & Trust Company payable to “Flora Grisham, Independent Executrix of the Estate of I. T. Grisham” for $5,669.05, the amount of the Grisham account. This check was forwarded to the First National Bank in Dallas with a request that the check be not released until the pass book of the savings account had been obtained so that it could be forwarded to Oak Cliff.

After a number of telephone calls from the First National Bank in Dallas, Mrs. Beatrice Martin, an officer in charge of accounts for Oak Cliff, received a call from J. R. Cummings, an officer of the Wichita Falls bank. As to this telephone conversation, Mrs. Martin stated in her deposition that Mr. Cummings “identified himself as an officer of the (Wichita Falls) bank and said that we (Oak Cliff) were working a hardship on our customer by demanding that the pass book be surrendered for it seemed that the pass book had been lost and could not be surrendered. * * * I told him our standard practice was to require the pass book. He indicated that they knew the customer, that a real estate transaction was involved, and that they needed their funds desperately. * * * Upon the word of an officer of the bank, I told him we would release the check. * * * I called Mrs. Walton at the (First National) bank and told her we would release the check. * *

Had Mrs. Martin’s version of this conversation been incorrect or untrue Mr. Cummings could have easily corrected or contradicted it. In his affidavit Cummings simply stated that after making inquiries of the First National Bank in Dallas he “contacted Beatrice Martin, Vice President of the Oak Cliff Savings & Loan Association, regarding the pass book and at that time she waived the presenting of the pass book and did not require us (the Wichita Falls bank) to obtain affidavit of lost pass book and she notified First National Bank in Dallas to release Oak Cliff Savings & Loan Association check to us in payment of the draft, which we had sent for collection.” The check was accordingly released to the Wichita Falls bank and delivered by it to Fredda Grisham, who endorsed it as “Flora Grisham, Independent Executrix of the Estate of I. T. Grisham.” The proceeds thereof at the request of Fredda Gris-ham were deposited in the Wichita Falls bank to the credit of the account of “Mr. and Mrs. Perry Grisham.” Seemingly, this circumstance did not arouse the suspicions of the officers of the Wichita bank. These funds were later withdrawn from the account and presumedly dissipated by Fredda Grisham and her husband.

Mrs. Flora Grisham is the widow of I. T. Grisham, deceased, who had opened the account with Oak Cliff. In the spring of 1962 she requested payment of the money in the account of “Flora Grisham, Independent Executrix of the Estate of I. T. Grisham.” The fraud of Fredda Grisham was then discovered. Oak Cliff paid Mrs. Flora Gris-ham and brought suit against American Bank & Trust Company for an unauthorized payment out of its funds on deposit with said bank. American asked for a recovery against First National upon its endorsement of the check of June 2, 1961, and that bank requested similar relief against the Wichita Falls bank. The Wichita Falls bank pleaded over against Oak Cliff, contending that the unwarranted payment of the proceeds of the check to Fredda Grisham was occasioned by the acts and omissions of Oak Cliff.

The Asserted Negligence of Oak Cliff

It is conceded by the parties that under a contract of deposit, a bank obligates itself to pay funds to such persons or entities as the depositor may direct and to no others; that a depository bank which pays out money upon a forged endorsement may not legally charge the amount so paid out to the depositor’s account in the absence of unusual conditions, and that ordinarily the bank paying out funds upon a forged endorsement must stand the loss.

The Wichita Falls bank paid out the funds in the case now before us and now contends that the American bank (Oak Cliff depository bank) had a good defense against the demand of Oak Cliff for the return of the money paid out on the forged endorse'ment which it (the Wichita Falls bank) is entitled to assert in this suit. Seemingly, it is also asserted that there are special circumstances existing between Oak Cliff and the Wichita Falls bank which would render it unfair or inequitable for the bank to be charged with the loss occasioned by Fredda Grisham’s fraudulent conduct. This position is stated by Mr. Cummings, the Wichita Falls bank official, in his affidavit as follows:

“Had we been placed on notice of any kind by Oak Cliff Savings & Loan Association that the purported signature of Flora Grisham, their own depositor, was not the true signature of Flora Grisham, the subject money would not have been delivered to Mrs. Perry Grisham, we would not have guaranteed her endorsement and we would have required additional verification of such signature before clearing such check.”

The Wichita Falls bank attempts to raise some species of estoppel which would prevent the enforcement of the general rule that the loss falls upon the party who pays out money upon a forged endorsement. In our opinion the position of the Wichita Falls bank cannot be sustained either upon the premise that such bank stood in the shoes of the Oak Cliff depository bank (American) or upon the theory that Oak Cliff misled the Wichita Falls bank and thus caused them to cash the check and deliver the proceeds to a forger. The check drawn by Oak Cliff was an order to pay “Flora Grisham, Independent Executrix of the Estate of I. T. Grisham” the sum of $5,669.05, and unless such sum was paid to the named payee, it could not lawfully be charged against the Oak Cliff account. This legal situation is not modified nor the liability of the Wichita Falls bank avoided because Oak Cliff, at the time American paid the check, had no signature card in its files signed by Flora Grisham or the circumstance that it held in its files a letter signed by the genuine Flora Grisham, as well as the purported draft signed by the spurious Flora Grisham. It is not customary for banks to make inquiry of depositor’s files before ascertaining the identity of persons presenting checks for payment as payees. If inquiry as to identity had been made, we might have a different situation, but a depositor is not required to volunteer information nor to anticipate that its depository will pay out funds upon forgeries. We agree with respondent that petitioner’s arguments might have some application to the duty owed to one investing or depositing money with Oak Cliff, hut the lack of a signature card in Oak Cliff’s files does not lessen the duty which the American bank (and hence the Wichita Falls bank) owed to Oak Cliff. The facts of Liberty State Bank v. Guardian Savings & Loan Association, 127 Tex. 311, 94 S.W.2d 133 (1936) go far beyond the facts of this case in that there an estoppel was sought to be urged upon a failure to promptly notify the bank that money had been paid out upon a forged endorsement, which delay allegedly operated to prejudice the bank’s attempts to recover such money. It was not a case in which an estoppel was sought to be raised because of some action taken by a depositor in causing payment to be made upon a forgery. However, a forged endorsement was involved and a depositor’s duty with reference thereto was discussed. This Court said:

“A bank paid the check of its depositor upon a forged indorsement of the payee. The jury found the depositor negligent in not sooner discovering the forgery. The Court of Civil Appeals held that the depositor owed no duty to examine the indorsement, and could not therefore be charged with negligence for failure to do so. There was no •question but that the depositor promptly notified the bank upon learning that the indorsement was forged. In rendering judgment for the depositor, the court merely reannounced and followed a rule of general acceptation, stated in 3 R.C.L. p. 535, § 165, in this language: ‘The duty imposed upon the depositor to examine his pass book and vouchers does not extend to an examination of the signatures of the payees on the returned vouchers, as it is the duty of the bank to determine the genuineness of a payee’s indorsement, and the depositor is not expected to know his signature, and the fact that an agent in the employ of the depositor has forged the payee’s indorsement does not affect the •rule.’
“In addition to the authorities cited in the opinion of the Court of Civil Appeals, we cite the following: 6 Tex.Jur. p. 308, § 159; 7 C.J. p. 608, § 415; Texas Bank & Trust Co. of Sweetwater v. Withers (Tex.Civ.App.) 60 S.W.(2d) 1061; case notes in 15 A.L.R. 166, and 28 A.L.R. 1437.”

Liberty Mutual Ins. Co. v. First National Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237 (1952) presented a state of facts which in some respects are similar to those disclosed by the present record. It was held that the circumstance that an employee of Liberty Mutual Insurance Company had issued a number of fraudulent checks payable to fictitious payees did not excuse the bank in paying out the insurance company’s funds on faked endorsements. Liberty State Bank v. Guardian Savings & Loan Association was said to set at rest the duty of a depositor to examine the endorsement upon checks written by it.

The Theory that Fredda Grisham was an “Impostor in Law”

Perhaps a more serious problem is presented by the contention that the “impostor” doctrine has application to this case. The term “impostor” or “impostor at law” in the law of negotiable instruments is a phrase of art and its selection as a technical term may not have been a happy one. It was stated in United States v. Bank of America National Trust & Savings Association, 9 Cir., 274 F.2d 366, 81 A.L.R.2d 1358 (1959) that, “In a certain sense, all forgers are impostors and, similarly, impostors in connection with commercial paper in a broad sense are usually forgers.” Usually a forger is an impostor (in the popular sense) insofar as the paying bank is concerned as he represents that he is the payee designated in the bill or check he presents. However, an “impostor in law” must be one who imposes upon the maker of the check or bill. The rationale of the “impostor” rule is simple of statement. It is that one who makes a mistake must bear the loss occasioned thereby. If the maker of a check believes that A is B (to whom he owes an obligation) and draws an order with the expectation that A shall receive the proceeds thereof, such maker is liable for his own mistake. However, if the maker draws a check payable to B and A represents to a paying bank that he is B and thus receives the proceeds of the check, A is not an impostor in relation to the maker and the paying bank may not charge the amount of money paid out against the maker of the check. The mistake was that of the paying bank. The impostor rule is not always easy of application however. See dissenting opinions in United States v. Continental-American Bank & Trust Co., 5 Cir., 175 F.2d 271 (1949) and Atlantic National Bank of Jacksonville v. United States, 5 Cir., 250 F.2d 114 (1957) and A.L.R. Annotations following the report of United States v. Bank of America National Trust & Savings Association, supra, 81 A.L.R.2d 1358. There is danger of confusing names of persons with persons. The impostor rule gives effect to an intention to pay a particular flesh and blood person regardless of name.

In the Atlantic National Bank case, cited above, Judge John R. Brown, writing for the majority, described the case then before the Court of Appeals as being the “classic case of an impostor.” This description seems correct as to most cases where the impostor doctrine is invoked and there is no actual face to face confrontation between the maker and the impostor. Generally, as was the case in Atlantic National, we find rather widespread swindling operations involved, such as the assertion of fictitious claims and the issuance of checks to fictitious persons in purported settlement thereof. See Annotation, 81 A.L.R.2d 1365. However, the impostor rule is not stated in the terms of multiple operations, although it seems that a multiplicity of actions or maneuvers may be relied upon to establish a belief or intention on the part of the maker of a check to pay the person regarded as an impostor.

The rule is generally stated as including three elements, namely, (a) a fraudulent representation by a swindler to the drawer of the check that he is the intended payee, (that is, the swindler must be an impostor insofar as the drawer or maker is concerned), (b) a belief by the drawer that the swindler is the person he pretends to be, and (c) a conscious and intentional delivery of the check to the swindler by the drawer, induced by the belief that the swindler is the person he pretends to be. Montgomery Garage Company v. Manufacturers’ Liability & Insurance Company, 94 N.J.L. 152, 109 A. 296, 22 A.L.R. 1224; Annotation, 81 A. L.R.2d 1365.

Undoubtedly in this case the Wichita Falls bank was deceived by the representations made to it by Fredda Grisham. This circumstance, however, as a practical matter, presents an almost insurmountable burden to the acceptance of its contention that Oak Cliff should bear the loss occasioned by the swindler. The Wichita Falls bank, believing that Fredda Grisham was Flora Grisham, prepared the draft which was sent to Oak Cliff. Mr. Cummings, the Wichita Falls bank official, believing that he was dealing with Flora Grisham, called Oak Cliff and held the telephone conversation which resulted in a waiver of presentation of the pass book relating to the Flora Grisham account. Every circumstance that could be urged in support of the hypothesis. that Oak Cliff intended to pay the flesh and •blood person who stood in Wichita Falls hank and whom no official or employee of Oak Cliff had ever seen, (so far as this record shows) is based upon some action taken by the Wichita Falls bank. The only written communication between Fredda Gris-ham and Oak Cliff, if such it can be called, was the draft which, while prepared by the Wichita Falls bank, was actually signed by Fredda Grisham. If the issuance of the check on the American bank was intended as an acquiescence to the request contained in the draft it was conclusively shown that Oak Cliff did not intend to pay the person who signed the draft unless the pass book was first delivered. This evidenced a clear intention to pay the owner of the account. If liability be shifted to Oak Cliff it must be predicated upon its waiver of the requirement that the pass book be delivered. Yet this action was taken as a result of a telephone conversation with the Wichita Falls bank. Mrs. Martin’s uncontradicted version of this transaction indicates that she decided to waive the pass book requirement because of what was said to her by the officer of the Wichita Falls bank and her assumption that such bank would (as it did) guarantee the validity of the Flora Grisham, independent executrix, endorsement. The conclusion is inescapable that while Fredda Grisham was an impostor as to the Wichita Falls bank, she did not bear that relationship to Oak Cliff.

Conclusion

The evidence adduced here by deposition and affidavit would have compelled the giving of an instructed verdict for Oak Cliff if presented in the conventional or usual form of trial. The summary judgment was proper. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Zamora v. Thompson, Tex.Civ.App., 250 S.W.2d 626, wr. ref. (1952); McDonald, Texas Civil Practice § 17.26.5.

CALVERT, C. J., and GREENHILL, J., dissenting.

-POPE, J., not sitting.

GREENHILL, Justice

(dissenting).

An impostor is one who, “by assuming a character or identity' not his own, fraudulently induces the drawer . . . of a check to draw ... a check to him in his assumed identity and to deliver the check to him believing him to be the person he pretends to be and the payee . of the check.” Annot., 81 A.L.R.2d 1365, 1367 (1962).

A forger is a person who “without fraudulent representations to the drawer of a check that he is the intended payee of the check, comes into possession, by interception, theft, or the like, of a check in which a third person is named payee and obtains payment thereof by counterfeiting the payee’s indorsement” 81 A.L.R.2d at 1367.

As stated in the annotation, the distinguishing features between an impostor case and a forger case are:

“(1) either by face-to-face dealings or by correspondence the impostor fraudulently induces the drawer of the check to believe that he is the intended payee . . . whereas the forger does not make such representations to the drawer, (2)' the drawer consciously and intentionally delivers the check to the impostor personally or through an intermediary, believing the impostor to be the payee . . . whereas the drawer does not consciously or intentionally deliver the check to the forger, and (3) the impostor case involves a dual imposture — first to the drawer . who delivers the check or draft to the impostor, and then to the impostor’s indorsee, whereas the forger case involves only a single imposture — to the forger’s indorsee.” 81 A.L.R.2d at 1368.

Section 3-405 of the Uniform Commercial Code of 1958 states the rule more simply: “(1) An indorsement by any person in the name of a named payee is effective if (a) an impostor by use of the mails or otherwise has induced the maker or drawer to issue the instrument to him or his confederate in the name of the payee . . . .” Almost two-thirds of the states have enacted the Code, and it has been placed on the State Bar’s present legislative agenda by the Board of Directors of the State Bar of Texas. See 27 Texas Bar Journal 943 (Dec. 1964). This Section 3-405, above quoted, is in House Bill 9 and in Senate Bill 141 now before the Legislature.

As I understand this rule as applicable here, it says that “An indorsement by any person [Fredda] in the name of a named payee [Flora] is effective [to hold the drawer, Oak Cliff] if (a) an impostor [Fredda] by use of mails or otherwise [mails and telephone here], has induced the maker or drawer [Oak Cliff] to issue the instrument to him [Fredda] or his confederate in the name of the payee [Flora] . . . .” In my opinion, this is what happened, and the impostor rule is applicable. Inasmuch as the Uniform Commercial Code has been adopted by a great majority of the states and has been recommended for adoption in this state by our Bar, it would seem appropriate to me for this Court to follow the rule set out in the Code. It apparently has worked well in the other states.

The facts appear to me that Fredda did cause Oak Cliff to issue the check. She initiated and signed the draft herself which started the transaction. Fredda (not the Wichita Falls bank) was the impostor, though Fredda was able to get the Wichita Falls bank to do some of her work for her by subsequent telephone calls on her behalf. The Wichita Falls bank was acting for her in attempting to get Oak Cliff to release the money and to issue the check. The transaction was certainly not an independent venture of the Wichita Falls bank. The fact that the Wichita Falls bank may have been negligent (which has not yet been proved) does not keep this from being an impostor case. Whether that bank should be required to bear the responsibility by virtue of its participation or its own negligent acts does not determine the applicability of the impostor rule. That is another matter. In this regard, the case has been decided, without a determination of the facts, upon summary judgment.

It is recognized that for most of us, this is an unfamiliar and remote concept of the law. I repeat the facts one more time, as I see them, in order to attempt to make clear the applicability of the impostor rule to them:

Fredda Grisham signed a draft, using Flora Grisham’s name, which directed Oak Cliff to pay the balance of the account to the Wichita Falls bank. Just as if it had been face-to-face, by letter, or by phone, this was a representation by Fredda Gris-ham to Oak Cliff that she was Flora Gris-ham. Fredda was an impostor. Oak Cliff did not honor the draft as such but prepared a check payable to “Flora Grisham,. Independent Executrix of Estate of I. T.. Grisham.” Oak Cliff was thus induced to. draw that check because it believed that the-impostor was Flora Grisham. As one court, put it, Oak Cliff did not know Fredda was not Flora. Uriola v. Twin Falls Bank & Trust Co., 37 Idaho 332, 215 P. 1080 (1923). The check was forwarded to a Dallas bank with instructions not to release it until the passbook was obtained. This amounted to a conscious and intentional delivery of the check to the impostor through an intermediary. See Gen. Am. Life Ins. Co. v. Nat’l Bank of Commerce, supra; 81 A.L.R.2d at 1381-83, 1388. The delivery was completed. when Oak Cliff believed or accepted Fredda Grisham’s representation, as related by the Wichita Falls bank, that the passbook was lost. Upon indorsement of the check and receipt of the proceeds, she and the case came within the impostor rule announced in the A.L.R. annotation and the Uniform Commercial Code.

There are a few cases in which, although the facts fit the requirements of the impostor rule, courts have held that the one who •cashes or pays the check [the Wichita Falls bank] must bear the loss. See cases cited •81 A.L.R.2d at 1392-95. The rationale of these cases is that the drawer [Oak Cliff] was not negligent, but the drawee or person who cashed the check [the Wichita Falls bank] was negligent to such an extent that the drawer should be relieved of liability. In the case at bar, allegations of negligence are made by each party against the other. In its reply to Oak Cliff’s request for admissions, the Wichita Falls bank denied that its officer, J. R. Cummings, represented to Oak Cliff that the passbook had been lost, and, claiming to know the facts, induced Oak Cliff to waive the demand that such passbook be surrendered. If negligence is a factor, then Oak Cliff has the burden of proving that the Wichita Falls bank owed it some duty which was breached, and that this conduct was the proximate cause of the loss.

I dissent on the basis that this is an impostor case and should be treated as such. Once that has been decided (and the majority opinion declines to do so), then the decision would have to be made as to whether (1) the impostor rule would simply be applied as a rule of negotiability, and Oak Cliff could not recover, or (2) whether, even assuming the impostor rule) the cause should be remanded for a trial on the facts with regard to negligence of the Wichita Falls bank, and perhaps the Oak Cliff bank, under the cases discussed just above. This latter course appears to be a minority view, but from the standpoint of justice it has a good deal to recommend it. The Court would have to choose between a fixed and simple rule of negotiable instruments in aid of dispatch of business and commerce, or attempt to do justice in the individual case. Since the Court does not reach the problem, it is unnecessary to express any opinion thereon.

CALVERT, C. J., joins in this dissent.

      . Petitioner relies upon Red Ball Motor Freight, Inc. v. Bailey, Tex.Civ.App., 332 S.W.2d 411, wr. ref. n.r.e. (1960). This case involves a series of swindles which an employee perpetrated upon the Red Ball Motor Freight Lines, Inc. However, the most distinguishing feature between the cited case and present one is the circumstance that a check was not involved in Red Ball. Here there is no dispute that the American bank (whose position petitioner says it is entitled to occupy) was the depository bank of Oak Cliff and that the instrument drawn by Oak Cliff against the American bank in favor of Flora Grisham was a check. The written instruments involved in Red Ball were described as claim drafts in which Red Ball, according to the Court of Civil Appeals, was both a drawer and a drawee. In stating the question to be decided in the case, the Court of Civil Appeals said, “If the instruments are checks and the depository banks are drawees unquestionably the case of Liberty Mut. Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237, is applicable and the depository banks are-liable to Red Ball on the 161 instruments involved.”

      . In the interest of brevity, this dissent ■will not contain a detailed analysis of the cases, but will discuss the general rules and direct attention to the excellent A. L.R. annotation, gee Employers Casualty Co. v. Nat’l Bank of Commerce, 140 Tex. 113, 166 g.W.2d 691 (1942); First Nat’l Bank v. Whitaker, 136 Tex. 117, 147 S.W.2d 1074 (1941); Gen.Am.Life Ins. Co. v. Nat’l Bank of Commerce, 348 S.W.2d 393 (Tex.Civ.App.1961, n.r.e.).


source: Caselaw Access Project

author: SMITH, Justice. NORVELL, Justice

license: Public Domain

text:
    Ex parte Gordon L. YATES.
    No. A-10406.
    Supreme Court of Texas.
    Feb. 10, 1965.

      Clyde, Hines & Craig, Fort Worth, for relator.
    Ernest May, Fort Worth, for respondent.
   SMITH, Justice.

Relator, Gordon L. Yates, applies here for a writ of habeas corpus from an order of commitment entered by the judge of the 153rd District Court of Tarrant County, Texas. The commitment was ordered pursuant to a judgment entered by the Court on September 18, 1964, adjudging Yates guilty of civil contempt for failure to comply with the Court’s judgment entered in a divorce suit on December 3, 1963. The Relator seeks release from the custody of the sheriff of Tarrant County, Texas, on the ground that the action of the judge in finding him guilty of civil contempt for failure to obey that portion of the divorce judgment dealing with the community property owned by Gordon L. Yates and his wife, Mary Ruth Yates, at the time of the divorce, amounts to an imprisonment for debt in violation of Article I, Section 18, of the Constitution of the State of Texas, Vernon’s-Ann.St.

The order of commitment recites that the defendant, Gordon L. Yates, is “* * * adjudged to be guilty of civil contempt, and is remanded to the custody of the sheriff of Tarrant County, Texas, for three days- and thereafter until he purges himself by payment of all arrears of the judgment against him * *

We have concluded that the judgment of contempt is void insofar as it directs that Yates shall remain in custody “until he purges himself by payment of all arrears of the judgment.”

Relator’s wife filed a suit for divorce and division of the community property. During the pendency of the cause, relator was-enjoined from disposing of any of the community property. Trial was had before-a jury; and, after the jury had retired,, counsel for the wife moved for a non-suit. The Court permitted the non-suit and discharged the jury. Thereafter, the court determined that it was lacking authority to-grant the nonsuit and recalled the foreman of the jury to have him sign the verdict. This “verdict” was in favor of relator, and his counsel entered a motion for judgment,, while the wife’s counsel moved the court to declare a mistrial. The court declared a mistrial, after which the wife amended her petition and the cause came on again for trial.

On December 3, 1963, the Court entered its judgment dissolving the marriage, and ordered a division of the community property.

In April, 1964, after the divorce judgment became final, Mrs. Yates filed a motion to have the relator adjudged in contempt of the Court for disobedience of the partition decree. In determining whether or not Yates is guilty of contempt, this Court is particularly concerned with that provision of the divorce judgment which reads:

“(3) The plaintiff shall have $67,-920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More than said sum is evident by a promissory note of said corporation to the defendant’s order. He shall deliver said note to the plaintiff as security for her payment, but may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest per annum on the unpaid balance of $67,920.75. * :¡: »

It is apparent that Mrs. Yates and the Court proceeded upon the theory that the failure of relator to exercise the right to redeem the Gordon Yates Lumber Company note in the manner provided in the judgment constituted a willful and contumacious act punishable by contempt. It is also apparent from the record in this proceeding that relator, before the entry of the divorce judgment, and without the knowledge of the Court, pledged the note to a bank as .security.

On September 3, 1964, after the Court had granted relator several postponements, the Court proceeded with the hearing and found relator guilty of civil contempt. However, the Court’s order of commitment was withheld in order to give relator a reasonable opportunity to purge himself of •contempt by paying to Mrs. Yates all unpaid monthly installments as provided in the divorce judgment.

On September 18, 1964, Yates was ordered committed for his failure to purge himself of contempt.

The order of commitment contains the following fact findings:

1. Relator willfully concealed the pledging of the note until after the partition decree.
2. Relator never intended to perform the partition decree.
3. Relator has always intended, and now intends, to defraud the wife of her rights adjudged by the decree.
4. Relator has been continuously able to perform the decree, and his refusal to do so is willful and contumacious.

The case does not come before us as one in which relator is being committed for pledging the note in violation of the court’s injunction against disposition of community property during the pendency of the divorce action.

Assuming without deciding that the recitation in the divorce judgment that Yates “may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest * * * ” is decretal in nature and forms a part of the divorce judgment, we, nevertheless, hold that the court could only assess the appropriate punishment for willfully concealing the pledging of the note. Therefore, that portion of the order of commitment which remands Yates to the custody of the sheriff of Tarrant County, Texas, for three days is left undisturbed.

We cannot agree with the respondent’s argument that the case of Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961), rules the present case. In the Preston case, the trial court found that Preston had in his possession the sum of $21,000 of community property, and that $10,000 thereof had been awarded to Preston’s wife. The trial court in the Preston case did not order that any sum of money be paid to Mrs. Preston, but ordered Preston to pay the money into the hands of the court The money was in the possession of and in complete control of Preston. The only purpose in ordering Preston originally to pay over the $21,000 to the clerk of the court was so that the court would have possession and control over the community property in order to carry out its duty to make a division between the parties. In holding the acts of Preston to he contumacious, this Court cited Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224, 226 (1936), wherein it was held:

“The rule is established that a court having jurisdiction of the parties and the res of the litigation has undoubtedly authority to order the surrender of property held by the defendant or any other person who is a party to the suit.”

Another case, cited with approval by this Court in the Preston case, is that of Ex parte Latham, 47 Tex.Cr.R. 208, 82 S.W. 1046 (1904). The appellate court in the Latham case declined to follow the relator’s contention that the trial court was not authorized to imprison him for debt. The appellate court in Latham held that since it was competent for the trial court to make partition of the community property then the trial court was authorized to require the relator to turn over the community property conceded then to be in his hands for the purpose of distribution, and further the court was authorized to enforce its decree by a contempt proceeding.

This Court held that the order entered in the Preston case was not void, and that the facts demonstrated that the enforcement of the order would not constitute imprisonment for debt in violation of Article I, Section 18, of the Texas Constitution. The basis for this holding was the fact that the order merely directed Preston to “pay over money in his possession that rightfully belongs not to him but to his wife.” The judgment of divorce did not purport to decree that Preston was indebted to his wife. The judgment of divprce siñaply ordered a division of the money- and-directed Preston to pay over to the clerk of the court that portion which had been awarded to the-wife.

We decline to apply the rule announced in the Preston case to the factual situation presented in this case. The order holding Yates in contempt conforms to the facts in evidence. The order itself reveals that the money which Yates was being ordered to pay to Mrs. Yates was not property found to be owned by Mrs. Yates and in the possession of Yates, but was money to be earned by Yates in the future. The order does not, as in Preston, make a division of the property and direct a surrender to the-clerk of the court property held by Yates. The record clearly shows that Yates is being imprisoned for debt in violation of the Texas Constitution. Therefore, that portion of the order which remands Yates to-the custody of the sheriff of Tarrant County, Texas, until he “purges himself by payment of all arrears of the judgment against him * * js void. However, that portion of the order finding Yates in contempt: for willfully concealing the pledging of the note until after the partition decree is held' to be valid.

The relator Yates is ordered remanded to the custody of the sheriff of Tarrant County, Texas, and the relator Yates shall remain in such custody until he has completed serving the three day jail sentence-provided in the judgment of the trial court. Upon completion of the sentence, the relator shall be discharged from custody and his-, sureties released from liability on his bond..

NORVELL and STEAKLEY, JJ., dissenting.

NORVELL, Justice

(dissenting).

I respectfully dissent.- The relator should' 'be remanded to the custody of the sheriff of Tarrant County to be held until he purges himself of contempt. The order of commitment.must.be construed in connection with the provisions of the divorce decree which effects a division of the community property between relator and his former wife. The divorce decree provides that, “The plaintiff (Mary Ruth Yates) shall have $67,920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More than said sum is evidenced by a promissory note of said corporation to the defendant’s order. He shall deliver said note to the plaintiff as security for her payment, * * *”

I interpolate here to say that undoubtedly the relator could purge himself of contempt here and now by delivering to Mrs. Yates the promissory note mentioned and placing her in the position she purportedly occupied under the court’s decree at the time it was rendered. The opinion of the Court states that prior to the entry of the divorce decree, the relator had pledged the note to a bank. This circumstance is in actuality wholly immaterial to the real issue of this case. The gravamen of relator’s offense is concealment which in effect amounted to a representation that the note was a part of the community estate and hence available for the purposes of effecting a just settlement of such estate between husband and wife. The question of whether relator is able to deliver the note to Mrs. Yates is material only upon the issue of the ability of relator to purge himself of contempt in failing to carry out the trial court’s decree.

The divorce decree was somewhat unusual in that it contained an option provision. After the wording above quoted the decree proceeds as follows: “but (he) may redeem the note by installment payments of $500.00 per month principal and one twelfth of four per cent interest per annum on the unpaid balance of $67,920.75.”

In the order of commitment the Court found that the relator has made a fraudulent pledge of all the community estate; that he has wilfully concealed this circumstance from the Court and that relator “has always intended, and now intends, to defraud the plaintiff of her rights adjudged by the decree; that he has been continuously able to perform the decree, and that his default is wilful and contumacious.”

Had the order of commitment simply provided that the relator be remanded to the custody of the sheriff until he complies with the provisions of the decree, there could be no doubt as to its validity. Ex parte Latham, 47 Tex.Cr.R. 208, 82 S.W. 1046 (1904). When the divorce decree and the order of commitment (the contempt order) are construed together, as they must be, the legal effect is the same. Certainly the contempt order cannot enlarge or add to the provisions of the decree. As long^ as one follows the provisions of the decree, he cannot be held liable for contempt. However, a trial judge may in his discretion allow something less than a full performance to operate as a purge of contempt. In all events, the person charged with contempt is in no position to complain that something less than full performance is required of him in order to obtain a release from custody.

In the present case, that portion of the order which permits relator to urge himself of contempt refers to the option payments rather than to the delivery of the note, although as above pointed out, the ability to purge cannot and is not restricted to the option payments. The record discloses the reason for such provision. It is shown that the relator had made a number of $500.00 monthly payments and had, through counsel, assured the Court that he would continue to make such payments. The handling of divorce settlements, child support payments and the like present difficulties which at times are aggravated by personal ánimos-ities. Much patience and ingenuity is often required of the district judge in determining these problems and in preventing persons laboring under the stress of their emotions from taking actions which would probably result in financial loss to the parties directly involved as well as their dependents. It is all right to split the blanket down the middle if one doesn’t care much about the kind of a blanket that remains, but when a going business concern is involved some other form of division than one in kind is often called for. The divorce decree in this case, while unusual in provision (as is usually the case in a complicated business property situation) represents an attempt to save and’ protect the property rights of both parties. Violations of its terms should not be taken lightly, and all reasonable in-tendments or constructions of the divorce decree and the ancillary order of commitment should be given effect so as to support and not destroy the efficacy of tire judgment.

There is no debt involved here. The relator has violated the provisions of a property settlement decree. He has not delivered the note to his former wife as he was ordered to do. He has not made the required monthly payments essential to his redemption of the note under the optional provisions of the decree. The trial court has found that he is able to perform and until inability to so perform is demonstrated to this Court, the relator should be held in custody. Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Harvey v. Harvey, Colo., 384 P.2d 265 (1963).

The optional nature of the monthly payment provision in the divorce decree in itself prevents the same from being a “debt”. If such payments were not made, an action for a money judgment for debt could not be maintained thereon because of its optional nature, although other remedies may be available. In Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A.,N.S., 1140 (1908) this Court said:

“There are many instances in the proceedings of the courts where the performance of an act may be enforced by imprisonment and would not come within the prohibition of the Constitution, although it might involve the payment of money. * * * If it (the order involved in the case) were not complied with the plaintiff in the case could not maintain an action in any other court in this state to enforce the payment. 4 Ency.Pl. & Pr. 432, 433. It seems to us clear that the order entered by the court did not in any sense constitute a debt against the defendant, Davis.”

In this case we have a direct violation of a court decree designed to protect the vested property rights of the wife in the community and yet it is held that a “debt” is involved, despite the fact that no debt is created by the divorce decree. It is somewhat interesting to note that one rationale of the holding that alimony (where permitted by statute) is not a debt is that “the (alimony) order is in effect a decree of distribution of property, requiring payment to the wife of her share of the estate,” and the function of a contempt decree is not merely to punish for the failure to pay money but rather to force one to carry out the decree of a court when he is able to do so and his refusal to perform is wilful and contumacious. 30 A.L.R. 130, 1. c. 133, Annotation, “Alimony or maintenance as debt within constitutional or statutory provisions for debt.”

STEAKELY, J., joins in this dissenting opinion.

      . In part, the judgment provides as follows : “Upon the evidence the Oourt finds that the estate is wholly personal and all community property, of value $191,101.51. The Court finds that the plaintiff should be charged $6,500.00 for alimony received pending the suit, and that she is now entitled to property of value $89,050.75. To effect the division of the estate the Court deems just and right, it is now ORDERED, ADJUDGED and DECREED:
      (1) On or before December 6, 1963, the defendant shall pay the plaintiff $5,-000.00.
      (2) The plaintiff shall have the interest of the estate in two promissory notes of Glen Yates, Inc. * * *
      (3) The plaintiff shall have $67,920.75 of the debt of Gordon Yates Lumber Company to Gordon L. Yates. More "than said sum is evident by a promissory note of said corporation to the defendant’s order. He shall deliver' said note to the plaintiff as security for her payment, but may redeem the note by instalment payments of $500.00 per month principal and one twelfth of four per cent, interest per annum on the unpaid balance of $67,920.75. » * * ”

      . In connection with the pledge of this note, relator says that he was acting “on advice of counsel” and perhaps it should be said that such advice was not given by the attorney who represents the relator in the present proceeding. It is not shown here that the alleged pledge to the bank was valid or would render it impossible for relator to deliver the note to Mrs. Yates as required by the divorce decree even if a reacquisition of the note be necessary.


author: GRIFFIN, Justice.

text:
    Doyle O. BRAWLEY, Petitioner, v. William L. BOWEN et al., Respondents.
    No. A-10401.
    Supreme Court of Texas.
    Feb. 24, 1965.
    Jackson, Walker, Winstead, Cantwell & Miller, John L. Lancaster, III, and Jack Pew, Jr., Dallas, for petitioner.
    Joe N. Chapman, Raymond R. Johnson, Sulphur Springs, for respondents.
   GRIFFIN, Justice.

Respondents, William Bowen and Roy Bailey, brought this suit against petitioner, Doyle Brawley, to recover damages resulting from an automobile collision. Bailey was a passenger in Bowen’s car. At the time of the accident, petitioner and respondents were all traveling west on Highway 30, a four-lane divided highway in Hopkins County, Texas. Petitioner was in the left-hand lane and respondents were in the right-hand lane. Petitioner’s car drove into the rear of respondents’ car as the latter moved into the left-hand lane, preparatory to making a left-hand turn.

The respondents both sued petitioner for damages resulting from physical injuries which they alleged were sustained in the accident. In addition, Respondent Bowen asked for $500.00 damages to his car. The causes were consolidated, and the case was. tried before a jury which returned a verdict (a) exonerating petitioner on all counts of primary negligence, (b) convicting Respondent Bowen on three counts of contributory negligence, (c) finding that neither of respondents sustained damages from any physical injuries caused by the accident and (d) finding that Respondent Bowen’s car was damaged to the extent of $100.00. On the basis of this verdict, a take-nothing judgment was entered against both respondents. The respondents moved for a new trial on the basis, among other things, of jury misconduct. After a hearing on this motion, at which four of the jurors testified, the motion was overruled-On appeal, the Court of Civil Appeals reversed and remanded, holding in effect that jury misconduct had occurred as a matter of law, 381 S.W.2d 693. We reverse the judgment of the Court of Civil Appeals and affirm the trial court’s judgment.

Respondents alleged the following acts of jury misconduct in their motion for new trial: (a) that Juror Hollingsworth stated that he knew the plaintiffs and that they were “fakes,” trying to get something for nothing, (b) that the jurors made a prior illegal agreement to answer all special issues to keep respondents from recovering .anything, (c) that Juror Hollingsworth •gave unsworn testimony, based on his experience as a mechanic, as to the amount •and the cause of the damage to Bowen’s ■car, and (d) that the jurors discussed whether Respondent Bowen carried insurance and that Juror Hollingsworth stated that Respondent Bailey should actually be suing Respondent Bowen because Bowen probably carried insurance which covered passengers in his car.

Where no express findings are filed, it is presumed on appeal that the trial ■court found all controverted facts in support of its judgment overruling the motion and that no misconduct occurred. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770 (1932) ; Milstead v. Aynesworth, 341 S.W.2d 942 (Tex.Civ.App., 1960, writ refused, n. r. e.). If the evidence offered at the hearing on the motion for new trial is conflicting as to whether or not misconduct occurred, the decision of the trial court on the question is binding on appeal. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943); Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62 (1945) ; State v. Wair, 163 Tex. 69, 351 S.W.2d 878 (1961).

At the hearing on the motion for ■new trial, Jurors Harrelson and Dollar were called by respondents and Jurors Jenkins and Holley were called by petitioner. Juror Harrelson testified as follows: Juror Hollingsworth made a speech just after the jury foreman had been selected, in which he stated that he knew the plaintiffs, he did not think they were honest, he did not think they were hurt and that they were trying to get something for nothing; Hollingsworth said that the questions should be answered so that the plaintiffs would not get anything, and the jury decided not to give the plaintiffs anything before any of the questions were answered; Hollingsworth also said that he was a garageman and could see things in the pictures of the damaged car that the other jurors could not see; he said the damage was caused in a previous accident and he could fix the damaged light for $10.00; Hollingsworth stated that Bailey (the passenger) should be suing Bowen (the driver) instead of the defendant, because Bowen’s insurance probably covered passengers in Bowen’s car. On cross examination, Mrs. Harrelson said that a vote was taken on each issue and no one told her to vote a certain way on any issue. Juror Dollar corroborated Mrs. Harrelson’s testimony on all points.

The substance of Juror Jenkins’ testimony was as follows: Juror Hollingsworth did make a speech just after the jury retired, in which he said “he thought” the plaintiffs were faking and were out for money they did not have coming; Hollings-worth did not say he knew the plaintiffs; the jury did not decide who should win or lose the lawsuit before the questions were answered; he (Jenkins) did not hear Hol-lingsworth say he was a garageman, although Hollingsworth did say he could see things in the pictures which the others could not see; all of the jurors looked at and commented on the pictures; Hollings-worth did say the damages were exaggerated and could be repaired “for $30.00 or $50.00 or something like that”; there was some discussion as to why Bailey was suing the defendant and not Bowen, but there was no discussion about insurance — how much or who had it.

Juror Holley gave this testimony: He (Holley) did not hear Hollingsworth say that he knew the plaintiffs, that they were faking, that they were trying to get something for nothing, that the questions should be answered against plaintiffs or that Hol-lingsworth could see more from the pictures than the others; there was no discussion as to who should win or lose the suit and each of the questions was discussed and voted upon separately; Hollingsworth did explain the pictures to the jury because they asked him to, but he did not say that the damage was caused in a previous accident; Hollingsworth did say the damage could be repaired for $50.00; there was some discussion as to why Bailey was not suing Bowen, but the foreman “cut it short.”

The above testimony is conflicting on all of the grounds of jury misconduct alleged in the motion for new trial. Therefore, the trial judge’s implied finding that jury misconduct did not occur is binding on this Court.

We have examined the points of error which respondents urged in the Court of Civil Appeals. The only points, other than those involving jury misconduct, were objections to the trial court’s refusal to give two special requested issues, and the concomitant issues of negligence and proximate cause.

In view of the fact that we are reversing and rendering this decision on the above grounds, the other points of error raised in petitioner’s application for writ of error become immaterial.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.


author: BELCHER, Commissioner.

text:
    Billy Charles GRAHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 37756.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Charles R. Wheeler, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Grady Hight and R. J. Adock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is assault with intent to murder; the punishment, five years.

While the appellant was sitting at the bar in a lounge, the injured party, Martin, and his companion, Kinney prepared to leave. Kinney had previously bought a six-pack of beer and a carton of cigarettes, which he had placed on the bar near where the appellant was sitting. In leaving, Martin attempted to pick up the beer and cigarettes but the appellant ordered him to leave them alone. Martin left the beer and cigarettes on the bar and walked toward the door. At this time, the appellant took a knife from his pocket and approached Martin, who was standing near the door. Although several persons, according to the evidence, tried to stop the appellant, he cut Martin with the knife under the arm and on the left leg. When the appellant started to cut Martin again, Kinney hit him on the head with a beer bottle. Then appellant whirled around and when he was unable to find out who hád hit him, he put his knife in his pocket and left the lounge.

Officer Clayton testified that he arrived at the scene of tiie difficulty shortly after it occurred; and that soon thereafter he apprehended the appellant at his home. The appellant told Clayton that he had cut the man in the lounge and that he used the knife he then had' in his pocket. When Clayton told appellant, after he had examined the knife, that he did not believe it was the knife that was used, appellant said he had thrown the knife he used onto the school ground. After going to the school ground, the appellant told Clayton: “Well, let’s go back to the house and get the knife.” While testifying, Clayton identified the knife that appellant said he used and then he made measurements of it. It was 9.38 inches long, with two blades, each blade being 4J4 inches in length. Clayton testified that both blades were wet with water and had small particles of blood on them.

The physician, who examined the injured party at the hospital, testified that he suffered a stab wound in the arm pit about two and one-half inches in depth, severing both the artery and veins, and four major nerves of the upper extremity, which took about four hours to repair; and that the injured party had undergone five operations as a result of the same wound, and had a limited use of his arm and fingers; and that such wound was a serious one which would likely have caused death if immediate medical treatment had not been received.

The appellant did not testify but called his mother as a witness. She testified that when appellant arrived home he had blood on top of his head and also on his shirt and jacket, and that he was not drunk.

There are no formal or informal bills of. exception, and no objections to the court’s charge.

The evidence is sufficient to warrant the jury’s finding that the appellant is guilty, as charged, and supports the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Carl Wayne MARCOM, Appellant v. The STATE of Texas, Appellee.
    No. 37905.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    No attorney for appellant on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order revoking probation following a conviction for the offense of burglary, with punishment assessed at four years in the penitentiary.

The state moves to dismiss the appeal because no sentence appears in the record.

In the absence of a sentence, this court is without jurisdiction to entertain the appeal. Downs v. State, 169 Tex.Cr.R. 635, 336 S.W.2d 746.

The appeal is dismissed.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Octave HOWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 37763.
    Court of Criminal Appeals of Texas.
    Feb. 10, 1965.
    Rehearing Denied March 17, 1965.
    Charles Owen Melder, Houston, on appeal only, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and F. M. .Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is unlawfully carrying a pistol; the punishment, enhanced by two prior convictions for like offense, four years in jail.

The sufficiency of the evidence is questioned.

The prior convictions for carrying a pistol alleged in the complaint and information were proved. The judgments of conviction were introduced and testimony was offered as to the identity of the defendant and the time of the commission of the offenses. On cross-examination the appellant admitted that he had been previously convicted as alleged.

Ethel Broadway testified that she saw appellant in the bedroom or middle room of her mother’s home on the date alleged in the information; that he had a pistol in his hand; that he struck her; threatened to kill her and “snapped” the pistol at her. She called her mother who was in the kitchen and she came and ordered appellant to get out of the house. He said he wasn’t going anywhere and started “cussing” and fighting with her. Appellant fired the pistol into the floor in the living room and the witness’ sister was sent next door to call the police.

As the police were arriving at the house, appellant threw the pistol under the divan where the officers found it.

. The witness Ethel Broadway testified that appellant at first told her not to tell the police “he throwed it under the divan” but that she told them where it was.

Lucille Jordan, mother of Ethel Broadway, corroborated her daughter’s testimony as to appellant having the pistol in her home and firing it into the floor of her living room.

Patrolman C. B. Terpstra, of the Houston Police Department, who responded to the call to go to the address, testified that when he arrived someone called out “he has a gun.”

Upon entering the house he found appellant and two women in the living room. Appellant was immediately searched ' after they pointed at him.

Officer Terpstra was asked and answered :

“Q. Did you find anything when you searched the defendant?

-“A. Yes, sir, we found á blackjack.-

“Q. -Do you have it with you?

“A. Yes, sir.

“Mr. Stover: (Assistant District Attorney) I would like to have this black- ■ jack marked for identification purposes as State’s Exhibit No. 3.”

Appellant’s counsel then objected and his objection was sustained. He moved for a mistrial, which motion the court overruled.

It will be noticed that the evidence was before the jury before any objection was made and there was no motion or request to have the evidence withdrawn. Under such facts no reversible error is shown.

If there was any error in the trial court’s rulings, it was against the state when the cautious trial judge sustained appellant’s objection on the ground that “it is not the offense for which he is charged.” Art. 487, Vernon’s Ann.P.C.; Giacona v. State, Tex. Cr.App., 372 S.W.2d 328; Yaffar v. State, 171 Tex.Cr.R. 341, 349 S.W.2d 730; Ross v. State, 169 Tex.Cr.R. 313, 334 S.W.2d 174.

Patrolman Terpstra further testified that Miss Broadway told him that appellant threw the pistol behind the couch and he found the pistol which was introduced in evidence there. He also testified that he saw a bullet hole in the floor of the living room; found a fired cartridge in the pistol.

Appellant testified that the pistol was one he had previously bought and given to Ethel Broadway. He denied that he took the pistol to Lucille Jordan’s house or that he fired it. It was his testimony that Ethel had the pistol and her mother had a knife or dagger when they “called the law” and that Ethel handed the pistol to the police when they got there.

Appellant also denied that he threw the pistol behind the couch or that the officers found it there; that he fired the pistol into the floor; that anyone fired the pistol while he was there; that he had ever fired the gun, or that he “ever had the pistol at all .out there that day.”

We find no merit in the contention that appellant was not shown to have moved about with a pistol. The state offered proof that he had the pistol in his hand in the bedroom and in the living room of the home of Lucille Jordan, fired it and threw it behind the couch where it was found. Ethel Broadway testified, on cross-examination: “Q. Are you stating the defendant brought this pistol to your house ? A. He brought it to the house.”

The jury decided the fact issue against the appellant and we find the evidence sufficient to sustain the conviction.

Appellant’s complaint as to the court’s charge was not raised in his objections and exceptions to the charge, hence need not be discussed other than to observe that it relates to the prior convictions and the application of Art. 61 P.C.

Appellant complains of the overruling of his motion to quash the information upon the ground that the reading of the allegations of the prior convictions to the jury would be so prejudicial that he could not receive a fair trial.

The complaint is further urged that appellant was in fact deprived of a fair trial by reason of the allegation and proof of his prior convictions for carrying a pistol.

The state may allege and prove a previous conviction for the purpose of enhancing the punishment under the applicable enhancement statute. (Arts. 61 to 63 P.C.) Stephens v. State, Tex.Cr.App., 377 S.W.2d 189, and cases cited. See also Wigginton v. State, Tex.Cr.App., 386 S.W.2d 532.

Our disposition of appellant’s claim of error in the overruling of his motion-for mistrial based upon the testimony to the effect that a blackjack was found in the search of the appellant’s person disposes of the complaint as to the argument of the prosecuting attorney directing attention to such testimony.

No reversible error appearing, the judgment is affirmed.


text:
    August LOHSE, Appellant, v. The STATE of Texas, Appellee.
    No. 37433.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied March 17, 1965.

      Clyde Vinson, William C. McDonald, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is rape; the- punishment, five years.

No statement of facts accompanies the record.

Appellant’s sole contention on appeal is that the indictment under which he stands convicted is void because (1) it does not allege venue — i. e., that the offense was committed in Tom Green County, Texas, and (2) it fails to charge an offense because it does not allege that he “unlawfully” committed the assault and rape upon the female.

Such contentions were urged by appellant in his motion to quash the indictment, which was by the court overruled.

The indictment reads, in part:

“THE GRAND JURORS, duly selected, organized, sworn and impaneled as such for the County of Tom Green, State of Texas, at the January term, 1963, of the 51st District Court of said County, upon their oaths present in and to said Court that on or about the 15th day of September, A.D.1962, and anterior to the presentation of this Indictment, in the County and State aforesaid August Lohse did, in and upon Johnnie Sue Hathcock, a female, then and there under the age of eighteen years, did make an assault, and the said August Lohse did then and there ravish and have carnal knowledge of the said Johnnie Sue Hathcock, the said Johnnie Sue Hathcock not being then and there the wife of said August Lohse; against the peace and dignity of the State.” (Emphasis supplied.)

We find the allegations of the indictment sufficient to allege venue and to charge an offense.

The use of the words m the County and State aforesaid” and “then and there,” being words of reference in the indictment, after the county and state had been named, was sufficient to allege that the offense was committed in Tom Green County, Texas. See: Owens v. State, 162 Tex.Cr.R. 212, 283 S.W.2d 749, and cases therein cited.

The failure to allege that the assault and rape was “unlawfully” committed by appellant did not vitiate the indictment, as the state need not aver in express terms that the act charged was unlawfully done, where the facts alleged clearly show it to be unlawful. Veevers v. State, 172 Tex.Cr.R. 162, 354 S.W.2d 161. The facts alleged in the instant indictment show the act charged to be unlawful.

The judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge. WOODLEY, Judge McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Clovis PATTERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37322.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied March 3, 1965.

      Z. D. Allen, Crampton & Crampton, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Stanley M. Vickers and Thomas F. Keever, Asst. Dist. Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is sodomy; the punishment, two years.

In view of our disposition of this appeal, a statement of the facts is deemed unnecessary.

Bill of Exception No. 1 reads as follows:

“BE IT REMEMBERED, that on the trial of the above styled and numbered cause, that while Z. D. Allen, one of the attorneys for the Defendant, was arguing the case to the Jury he said ‘where is Alfred Bohannon, he was indicted for this same offense, the State could call him, but we * * * ’ and started to argue further the State’s failure to call the co-indictee Alfred Bohannon, as a witness.
“One of the Attorneys representing the State, at this point objected to said argument as follows:
“ ‘If the Court please we object to the Defendant’s Counsel arguing anything about Bohannon not being called as a witness by the State. It would be reversible error for us to call Alfred Bo-hannon to —witness stand— and force him to claim his Constitutional immunity’. Which objection was by the Court sustained and Defendant’s Counsel was not permitted to argue further the States failure to call Bo--hannon as a witness.
“The defendant' then and there in open' Court excepted and moved for a mistrial, and here and now tenders this her Bill of Exceptions and asks that the same be signed and filed as a part of the Record in this case.”

Appellant relies upon Offerle v. State, 136 Tex.Cr.R. 44, 123 S.W.2d 350, which is authority for the rule that an accused has the right to comment during argument upon the State’s failure to call a co-indictee who was available as a witness for the State under Article 711 Vernon’s Ann.C.C.P., as interpreted by our Court of Appeals in the early case of Rangel v. State, 22 Tex.App. 642, 3 S.W. 788, and consistently followed by this Court through the years.

Unless we followed the rule announced in Offerle, we would preclude an accused from arguing the failure of the State to call any witness available to them which would be in direct conflict with the long established rule permitting either side to comment upon the failure of his adversary to call available competent witnesses. This rule and the cases supporting it are found in 56 Tex.Juris. 2, Sec. 259 and 261.

The State contends that since, as they say, Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706, it has been reversible error for the State to call as a witness a co-indictee who claims his privilege against self incrimination, that the accused should not in all fairness be allowed to argue the failure of the State to call such an accomplice witness. A cursory examination of Washburn will reveal that it was really reversed because the State was permitted to propound 21 pages of fact laden questions to the accomplice Nelson, after his counsel had advised the court that Nelson would claim his privilege, and after Nelson had declined to answer each question as it was propounded and then the State was permitted to offer evidence which corroborated and supported the facts and circumstances embraced in the questions previously propounded to Nelson. Such a holding was proper, but only to that extent does it alter the well established rule that each party may properly argue the failure of the opposition to call available and competent witnesses.

For the error of the Court in prejudicially limiting appellant’s argument, the judgment is reversed and the cause remanded.

Upon further prosecution of this accused, we recommend the form of the indictment set forth in Quillin v. State, 79 Tex.Cr.R. 497, 187 S.W. 199, S A.L.R. 773, rather than the one before us here.

WOODLEY, Judge

(dissenting).

The only evidence introduced in the trial before the jury was the testimony of a 33 year old Inspector for the Texas Liquor Control Board. His testimony shows that he was in King’s Lounge, in Wichita Falls, on the afternoon of July 21, 1963, engaged in an undercover assignment, when the defendant, a female, in his presence and in the presence of others in the Lounge, did the act charged in the indictment; that is, she did “voluntarily permit one Alford E. Bohannon to use his mouth on Defendant’s sexual parts for the purpose of having carnal copulation.”

It is the view of the writer that the indictment is sufficient to charge the appellant as a principal with Alford E. Bohan-non in the act of sodomy defined in Art. 524 Vernon’s Ann.P.C.

The statute reads in part:

“[Wjhoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation * * * shall be guilty of sodomy, and upon conviction thereof shall be deemed guilty of a felony, and shall be confined in the penitentiary not less than two (2) nor more than fifteen (15) years.”

Under the law of principals, the participants agreeing to the act are equally guilty. Jones and Beckham v. State, 165 Tex.Cr.R. 472, 308 S.W.2d 48.

One who agrees to the commission of an offense and is present when it is committed is a principal, regardless of whether he aided in the illegal act. Brown v. State, 146 Tex.Cr.R. 602, 177 S.W.2d 64; Montoya v. State, 150 Tex.Cr.R. 158, 199 S.W.2d 164.

The court’s charge, to which there were no exceptions, instructed the jury on the law of principals and required the jury to find that the appellant did the acts charged in the indictment in order to convict.

The jury’s verdict found appellant guilty and assessed the minimum punishment upon undisputed evidence showing that Bo-hannon used his mouth on appellant’s sexual parts and that she not only permitted him to do so but was the principal actor in the crime. This verdict is set aside upon the ground that the formal bill of exception set out in the majority opinion reflects that the trial court prejudicially limited appellant’s argument.

The writer is in accord with the holding in Washburn v. State, 299 S.W.2d 706. The opinion in that case sets out Washburn’s contention as follows:

“ * * * that the trial court erred in permitting the state to call Andrew H. Nelson, a co-defendant, to the witness stand in the presence of the jury and require him to claim his privilege against self-incrimination and refuse to testify.”

In regard to this contention, this Court said:

“The trial court committed error in permitting the state to call the witness Nelson, a co-defendant, to the stand and require him to claim his privilege against self-incrimination and refuse to testify in the presence of the jury. Such refusal to testify was prejudicial because it could be used as" an incriminating fact against the appellant.”

The Court quoted with approval from 18 Tex.Jur. 238, Sec. 142, as follows:

“Unless the witness has agreed to turn state’s evidence, the prosecution ought not to place him on the stand; to do so and wring from him a refusal to testify, affording to the jury an opportunity to consider the refusal as a circumstance of guilt, has been said to be ‘certainly prejudicial.’ ”

The majority opinion departs from the rule in Washburn and, in effect, declares that the state may call a co-defendant separately indicted as a witness against one charged with acting as a principal with him in the commission of the offense and require him to testify or to claim his privilege against self-incrimination and refuse to testify. The majority give no effect to the fact that both principals are represented by the same lawyer, or to the fact that the witness has not agreed or been asked to agree to turn state’s evidence, or to the fact that unlike the Offerle case, the state was bound to prove, in order to convict the defendant on trial, that the co-defendant the state is criticized for not calling as a witness was also guilty of the act of sodomy.

In Offerle v. State, relied upon by appellant, Tidwell, his co-defendant, had pleaded guilty to the theft of the calf and according to the testimony had stated to the officers that he told Offerle the calf they butchered belonged to him. Offerle’s affirmative defense was that he believed Tidwell’s statement. Under these circumstances it was held that it would have been proper for counsel for Offerle to direct the jury’s attention to the fact that Tidwell had not testified for the state and that the state’s failure to call Tidwell was indicative of the fact that he would adhere 'to his statement that he told Offerle that the calf allegedly stolen from Bridwell’s ranch belonged to him (Tidwell).

Appellant’s co-defendant had not pleaded guilty, and the record indicates that had he testified he would have denied that any act of sodomy occurred.

If appellant had desired to have Bohan-non’s testimony that no act of sodomy was committed, there was available to her the severance statutes, Arts. 651, 652 C.C.P.

She did not seek the benefit afforded by these statutes or request that Bohannon be tried first. Loshe v. State, 160 Tex.Cr.R. 561, 272 S.W.2d 517.

I respectfully dissent

ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

We have carefully reviewed our opinion in this cause in view of the forceful motion filed herein by the State. True, the facts in the Offerle v. State case, 123 S.W. 2d 350, are different from the case at bar. Judge Christian wrote the opinion for the Court in Offerle’s case and cited with approval Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396. The holding in Bowlin was : “It is always permissible for counsel for either side to comment on the failure of the opposing side to call witnesses which may throw light upon the transaction under investigation * * * ”. We are not in a position to speculate as to whether or not the co-indictee or co-principal, Alfred Bohannon, might have “thrown light” upon the transaction had he been called by the state as a witness. The record reflects that approximately 7 persons were present in the King’s Lounge the afternoon of the alleged offense, but the state called only one witness, the Liquor Control Board Inspector. Bohannon might have denied the transaction entirely, or he might have re"fused to testify. We cannot anticipate what he might have done. On the other hand, had he been called and placed upon the stand and then refused to testify upon .the grounds that his testimony would tend ■to .incriminate him, then surely the State would not have pursued the matter further because of what we said in Washburn v. State, 299 S.W.2d 706. We reiterate that the'holding in the Washburn case is sound, but it has no application here.

We remain convinced that this case was properly disposed of in our original opinion. Accordingly, the State’s Motion for Rehearing is overruled.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Judge

(dissenting).

The majority reaffirm the holding in Washburn v. State, 299 S.W.2d 706, that it is prejudicial error to permit the state ,to call a co-defendant to the stand and require him to claim his privilege and refuse to testify in the presence of the jury, and approve the rule quoted with approval in Washburn v. State: “Unless the witness has agreed to turn state’s evidence, the prosecution ought not to place him on the stand; to do so and wring from him a refusal to testify, affording to the jury an ■opportunity to consider the refusal as a circumstance of guilt, has been said to be ‘certainly prejudicial.’ ”

Despite the fact that Bohannon was represented by one of the counsel who represented the appellant, and he had not agreed to turn state’s evidence and it would Rave been prejudicial error for the state to have called him as a witness at appellant’s trial, the majority set aside her conviction upon the ground that one of her ■counsel was not permitted to argue the ■state’s failure to call Bohannon and commit the prejudicial error.

■ To such holding I respectfully dissent.,


author: MORRISON, Judge.

text:
    Holland DEMING, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 37866.
    Court of Criminal Appeals of Texas.
    March 3, 1965.
    Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Vance, Frank Watts and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to rape; the punishment, 50 years.

Prosecutrix, a public health nurse, testified that on the morning in- question while on her accustomed rounds visiting in the homes of those to whom she rendered service, she observed a particular young colored man near several of the houses where she stopped, that finally he approached her and in response to her inquiry offered to show her where she might find a certain family. At her invitation he got in the automobile with her, but after traveling several blocks in both directions, she stopped at a corner in order to look up a certain street. The street on which she stopped had houses on one side but vacant lots covered with tall grass on the other. She stated that at this juncture appellant grabbed her around the neck with his left arm and put a ball point pencil to her throat saying “Don’t scream, IT1 kill you.” When she inquired if he wanted her money, he replied, “No, I want some pussy”, and threatened to put the pencil through her throat and instructed her to “back the car up.” She testified that he released his hold momentarily but then jerked her back and began to hit her on the face, breaking her glasses and cutting the inside of her lip. Finally she was able to extricate herself from his grasp and ran down the street screaming for help. She soon arrived at the home of a colored family, reported that she had been assaulted by a colored man and asked for help. The man who was present refused, but a woman accompanied her back to her automobile. She then drove to her office, reported the matter to her supervisor, and the police were notified. Her superior and the doctor in charge of her service and the officers who responded to the call testified as to her bruised condition. That afternoon she identified appellant in a police lineup.

Appellant was arrested a short time after the prosecutrix reported the matter and within an hour signed a written confession which coincides with prosecutrix’ testimony. When the confession was offered in evidence the court inquired “Object?”, to which counsel replied “not at this time.” When the prosecutor began to read the confession counsel stated, “We only have this objection, Your Honor, that the proper predicate has not been laid for the introduction of the statement.” When the court admonished the prosecutor “Prove that he signed this statement,” the prosecutor reminded the court that the witnesses had testified as to the warning and the signing, and the court overruled the objection and the confession was read to the jury. No request was made to retire the jury, and at this juncture in the case there had been no evidence to indicate anything as to involuntariness.

Appellant, testifying in his own behalf, gave substantially the same account of the transaction except that he stated that pros-ecutrix had questioned him as to his marital status and that he then proposed “intercourse” and “I guess she got scared.” He stated that as she fled the automobile he slapped her because he then realized that she was going to get him in trouble and denied that he choked her or intended to have intercourse with her against her will. As to the confession he testified that the arresting officers were Mr. Patton, whom he knew, and Mr. Bice, that upon their arrival at the City Hall he rode up in the elevator with Mr. Bice, who slapped him and hit him in the stomach, that Mr. Hall, who took the statement, told him that if he signed the confession it would keep him from getting the electric chair and contended that Hall did not properly reduce into writing what he had told him. He admitted that he spoke to Officer Patton alone before he signed the statement.

All of the officers named and a non-officer witness to the confession denied any brutality or deception in securing the confession and stated that the entire transaction consumed not more than an hour after they arrived at the City Hall. Officer Patton testified that appellant asked to speak to him alone while he was being interrogated by Mr. Hall and stated, “He wanted to know what to do in regards to signing the statement. I told him that I couldn’t give him any legal advice. He would just have to let his conscience be his guide and do whatever he thought was right.” Appellant was. not called in rebuttal after Patton testified. We have not detailed the testimony of the 18 witnesses who testified, but the above constitutes the salient points in the case.

Appellant’s sole contention on appeal is that the evidence is insufficient to support the conviction. We observe at the outset that the prosecutrix and appellant were strangers of different races and had been together only a few minutes before prosecu-trix fled screaming from her automobile. Prosecutrix weighed 115 pounds while appellant. was tall and weighed 17S pounds. Appellant introduced several pictures of the underprivileged area where this offense was alleged to have been committed and one of them does depict that one side of Norwich Street, on which it is agreed they were traveling, is covered with thick underbrush and trees and no houses are visible, which rebuts appellant’s assertion that appellant would not be expected to consummate his purpose in this “fairly well populated area of West Dallas.”

Adams v. State, Tex.Cr.App., 215 S.W.2d 327, upon which appellant relies, is easily distinguishable because in that case there was no stated purpose of an act of intercourse. In Dyer v. State, Tex.Cr.App., 215 S.W.2d 885, also cited in appellant’s brief, there was no physical contact between the appellant and the prosecutrix, according to her testimony.

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


author: McDONALD, Presiding Judge. WOODLEY, Judge MORRISON, Judge. WOODLEY, Judge

text:
    Harry Remer URBAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37122.
    Court of Criminal Appeals of Texas.
    Jan. 13, 1965.
    Rehearing Denied March 3, 1965.

      Charles W. Tessmer, Emmett Colvin, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., William F. Alexander, Jim Miller, C. M. Turlington .and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., .Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted of the offense of engaging in the business of bookmaking as denounced by Art. 652a, Vernon’s Ann.P.C.; his punishment was assessed at confinement in the state penitentiary for a term of three years.

The pertinent parts of the statute are:

“Art. 652a. Bookmaking; definition; penalty”
“Section 1. Any person who takes or accepts or places for another a bet or wager of money or anything of value on a horse race, * * * shall be guilty of book making and upon conviction be punished by confinement in the State Penitentiary for any term of years not less than one (1) nor more than five (5) or by confinement in the county jail for not less than ten (10) days nor more than one (1) year and by a fine of not less than One Hundred ($100.00) Dollars nor more than One Thousand ($1,000.00) Dollars.
“Sec. 2. Any person, who shall within a period of one (1) year next preceding the filing of the indictment commit as many as three (3) acts which are prohibited under Section 1 of this Act shall be guilty of engaging in the business of book making and upon conviction shall be punished as provided in Section 1 of this Act.”

The State’s evidence reflects that J. C. Davidson, a police officer of the City of Dallas working in plain clothes, placed, and appellant accepted, bets on horse races on three separate days in December of 1961.

The State, over objection that it was hearsay, was permitted to introduce the indictment into evidence. It is the state’s position that the indictment was offered for the purpose of showing the date of presentment to the Court in this case, for that purpose only, and for the record alone. The state also contends that since the indictment had been read to the jury that the part introduced before the court could not have caused injury to appellant.

Appellant challenges the sufficiency of the evidence because the trial court instructed the jury not to consider the indictment as evidence of guilt; therefore, the jury could not have found that the three acts of bookmaking could not have been proved to have been within one year prior to its filing.

We have concluded the learned trial court fell into error in not sustaining appellant’s objection to the admission of the indictment. The indictment was clearly hearsay. It constituted no proof. Hearsay evidence is not actually evidence at all. 24 Tex.Jur.2d, p. 51, Sec. 557; Ex Parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357; Doyle v. State, 168 Tex.Cr.R. 458, 329 S.W. 2d 286. Although it was properly read to the jury and also the jury might properly have taken the indictment into the jury room during its deliberations, the indictment was still merely a pleading of the state. If the indictment was not offered by the state as evidence to show the date of presentment, but only for the record, for that purpose alone and for the purpose of showing the court the date of presentment, then no proof was given to the jury. However, we are constrained to disagree with the state’s position for the reason that this hearsay evidence shown by the indictment was also before the jury. It was the jury’s ■ task to find, and not the court, that the three acts alleged in the indictment were committed within a period of one year next preceding ' the filing of the indictment. These three acts must necessarily have been determined by facts derived from evidence to give support to a verdict of guilt. The state asserts that the date of presentment or filing of the indictment is not evidence of guilt, but a fact to he determined to compute the period of limitations. If the state’s position is sound, then surely and certainly this was an evidentiary fact. Appellant’s guilt could not be established without evidence to sustain the allegation contained in the indictment that the three acts transpired within one year prior to the filing of the indictment; so the conclusion is inescapable that the indictment was offered into evidence by the state to show that limitation had not run on the offense charged.

The state earnestly insists that the doctrine of judicial notice applies in this case and that the indictment as read shows the acts to have been committed within less than one year prior thereto. The state says that judicial notice takes the place of proof and is of equal force and that the evidence is sufficient to support the conviction. However, the record here does not reflect that the Court took judicial notice. No request was made that the Court judicially notice the indictment or anything else. The Court did not indicate that it had judicially noticed the indictment, nor certainly was there a showing that the Court instructed the jury to consider the indictment under the doctrine of judicial notice. We doubt that it would have been proper for a court to have judicially noticed a vitally contested bit of' imperative proof, such as the three essential dates in the indictment, anyhow. We think the state was relegated to proof and should have and could have adduced evidence pertaining to these dates without relying upon the indictment. Certainly the clerk of the court and the Minutes of the Court could have supplied this vital evidence. We feel that the Court’s instruction in the charge to the jury effectively destroyed any credence that the jury might have placed upon the indictment initially. This phase of the court’s charge was as binding as any other part of the charge of the court.

The writer expresses the view that an indictment is an integral part of the state’s pleading and it is a useful and essential guide to the jury in its deliberations to test and weigh the evidence against the allegations contained in the indictment in order to determine if the state’s proof supports these various allegations contained in the-indictment. However, it would constitute fallacious reasoning to adopt the view that this pleading of the state became evidence, without proof.

We find no necessity to pass upon appellant’s other contentions. Upon another trial hereof, the complained of error in the courf s charge will no doubt not arise again. We express the further view that no error is reflected in the action of the trial court in failing to instruct the court reporter to take down all of the voir dire examination of the jury panel, in view of the court’s qualification of this bill of exception and the acceptance by appellant’s counsel of the bill as qualified.

Finding the evidence insufficient to sustain the verdict, the judgment is reversed and the cause remanded.

WOODLEY, Judge

(dissenting).

An indictment is “presented” when it has been duly acted upon by the grand jury and received by the court Art. 184 C.C.P.

“The fact of a presentment of indictment in open court, by a grand jury shall be •entered upon the minutes of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond.” Art. 394 C.C.P.

This was done and the date it was done was perpetuated and shown by the minutes •of the court, Vol. 44, Page 462 as Recorded March S, 1962.

The cause was given its number and the clerk endorsed on the indictment his file mark: “Filed Mar 5 11:43 A.M. ’62.”

There is no merit in the contention that the evidence is insufficient to sustain the conviction because there was no proof before the jury that the indictment was presented or filed on March 5, 1962, or the contention that proof of the date the indictment was presented did not constitute proof of the date of the filing of' the indictment

In the early case of Kennedy v. State, 9 Tex.App. 399, the Court of Appeals said:

“The records must show the fact of the presentment of the indictment, and that fact must be entered of record. * * * This was done, and the date upon which it was done was perpetuated and shown with certainty by the record. Under such circumstances, the record would be the surest and best evidence of the fact both of the date and the presentment, and in case of variance in the dates of the filing the record would control * * *. Suppose there had been no file-mark upon the indictment, would the failure or omission of the clerk invalidate the indictment? By no means; because the omission or failure of the clerk in this respect could be supplied, and would- be, by reference to the records, kept and authenticated by the court. These records, and they alone, import verity .with regard to judicial proceedings.”

The date of the presentment of an indictment, the filing of the indictment and the record entry of the presentment of the indictment, if correct, necessarily correspond.

“Presented” and “filed” in this connection refer to the same date.

“Presentment” and “filing”, in connection with indictments, have been used interchangeably by this Court in passing upon pleas of limitation. Duncan v. State, Tex.Cr.App., 59 S.W. 267.

One instance of the use of “filed” where companion statutes use “presented” referring to the same day is Art. 183 of the Limitation Statute.

The use of the word “filing” in the indictment, rather than the word “presentment,” which is used in Sec. 2 of Art. 652a V.A.P.C., did not change the sense or affect the validity of the indictment.

Art. 410 Vernon’s Ann.C.C.P. provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it-is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

The indictment presented and filed on March 5, 1962, was introduced in evidence for the purpose of showing the date it was presented. The court, in his charge, instructed the jury that it was presented on March 5, 1962. The charge required the jury :to find, in order to convict, that appellant “did take or accept * * * as many as three separate bets and wagers of money on horse races within a period of one year next preced_the presentment of the indictment, which was presented on March 5, 1962, to-wit, the sum of five dollars on or about the said 19 day of December, A.D. 1961, the sum of five dollars on or about the 16 day of December, A.D. 1961, and the sum of five dollars on or about IS day of December, A.D. 1961, * *

No issue was raised as to the date the indictment was presented and filed and the trial court did not err in charging the jury as to such date.

,The. contention regarding the state of the record with reference to whether the indictment was before the jury as evidence is quite like'the contention we overruled in Petty v. State, 166 Tex.Cr.R. 569, 317 S.W.2d 54.

The state’s evidence was that appellant made the bets on December 19th, 16th and 15th, 1961, which were dates “within a period of one year next preceding the filing of the indictment.” There was no testimony regarding bets made more than one year prior to March 5, 1962.

I respectfully dissent to the reversal of the conviction.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

To sustain this conviction it was essential that the State offer proof for the jury’s consideration that the offenses occurred within a 12 months period next preceding the filing of the indictment.

The State has filed an extensive brief in which are cited a number of cases dealing with the construction of instruments and pleadings or a collateral attack thereupon, but not a single case in which the question of the sufficiency of the evidence was being discussed. So at most what went before the jury was a stamp on the back of the indictment. The indictment bears the name, “Mrs. Thornton, Clerk of Court”, as a witness, and yet she was not called. We should not be asked to affirm a conviction without proper proof of an integral element of the case when proof was available and not offered.

The State’s motion for rehearing is overruled.

WOODLEY, Judge

(dissenting).

The dissent of the writer on original sub-, mission was addressed in part to appellant’s contention that “presentment” is a distinguishable act from that of “filing” and that the statute refers to the “filing” of the indictment, whereas the indictment alleged that the bets were taken within a period of one year next preceding the presentment of the indictment.

In connection with this point appellant cited Flores v. State, 143 Tex.Cr.R. 382, 158 S.W.2d 1012.

The state’s motion for rehearing cites this case and others which sustain its contention that the filing of the indictment evidences the date of presentment.

Ex parte Leifeste, 127 Tex.Cr.R. 445, 77 S.W.2d 675, cited in Luna and Luna v. State, Tex.Cr.App., 387 S.W. 660, sustains the state’s contention that an official file mark on a document serves as evidence of the fact of filing.

The state’s motion for rehearing should be granted, not only because of the erroneous holding that the file mark on the indictment was hearsay and of no weight as evidence, hut because no proof of the date the indictment was “returned”, “presented” or “filed” was required. The trial court was authorized to take judicial notice of such facts and date and instruct the jury as he did. Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360; Dunn v. State, 92 Tex.Cr.R. 126, 242 S.W. 1049; Baker v. State, 79 Tex.Cr.R. 510, 187 S.W. 949.