author: HAMILTON, Justice. CALVERT, Chief Justice

text:
    J. W. THIGPEN, Petitioner, v. Robert C. LOCKE et ux., Respondents.
    No. A-8908.
    Supremo Court of Texas.
    Dec. 5, 1962.
    Rehearing Denied Jan. 16, 1963.

      Fulbright, Crooker, Freeman, Bates &-. Jaworski, Houston, for petitioner.
    Dougal C. Pope, Houston, for respondents.
   HAMILTON, Justice.

This is a suit to set aside two deeds exe- - cuted by Mr. and Mrs. Robert C. Locke-(plaintiffs) by which they conveyed title to • a Flouston lot and grocery store to J. W. Thigpen (defendant). The trial court instructed verdict for Thigpen, and the Court: of Civil Appeals has reversed and remanded. 353 S.W.2d 249. Thigpen is petitioner here

Respondents’ theory is that the first deed is void because intended as a mortgage on 'business homestead property. Since petitioner does not rely on this deed, it need not he considered.

As to the second deed, dated January 2, 1951, respondents also pleaded home■stead protection, but this apparently has been waived as it was not argued in the "briefs. The other basis of respondents’ ■prayer for cancellation of the second deed is •equitable in nature, asserting three separate grounds for the imposition of a constructive trust.

On January 2, 1951, the Lockes executed ■three instruments: (a) a warranty deed conveying fee simple title to the lot and store to Thigpen; (b) a five-year lease of the premises back to the Lockes; and (c) a bill of sale to Thigpen covering all the fixtures in the grocery store. All of these instruments are acknowledged and otherwise formally in order.

Respondents’ version of the facts is as follows:

Since 1947 the Lockes had been in the •grocery business, having paid about $2,700 for their lot and building. In 1947 the Lockes met Thigpen, the “trust officer” of a local bank. According to Locke’s testimony, Thigpen helped them to get a loan and after that they became close friends. They saw •each other frequently, and Thigpen bought meat from the Lockes’ grocery store. Thig-pen helped them to get other loans and personally guaranteed one of them.

In 1949 Thigpen himself loaned respondents $5,000 and took a deed (the first deed) to the lot and grocery store as a mortgage. During 1949 Thigpen suggested that the Lockes form a corporation for the purpose of operating the grocery business, and the Lockes agreed. Respondents did not hire their own attorney but left the details of incorporation entirely up to Thigpen, who selected an attorney, signed as incorporator, and advanced $1,000 as capital stock, which was repaid. The lot and store were never conveyed to the corporation, but the Lockes endorsed all their shares of stock back to Thigpen as security for the $5,000 debt.

After the corporation was formed Thig-pen’s son, and later Thigpen himself, kept the books for the business. Thigpen was a director, vice president, and owner of two shares; Mr. Locke was president and, with his wife, owner of the 58 other shares. Locke testified that Thigpen often acted as business advisor to him in the management of the grocery business.

After the incorporation Thigpen continued to loan the respondents or the corporation money until their indebtedness reached almost $10,000. At this point — around November or December, 1950 — Locke spoke to Thigpen about taking bankruptcy, but Thig-pen urged him not to do so because he (Thigpen) would lose all of his investment. Locke testified that he then told Thigpen: “I want to pay everybody, I don’t want to lose my property, and if you and I can work out something so you can get your money, I will be glad to do it.” On January 2, 1951, Thigpen presented the instruments in question to respondents for their signatures. The Lockes testified that they did not read the instruments before signing.

According to Locke, he understood their transaction was that respondents would lease the property to Thigpen. Thigpen would sublet to the corporation, collect the rent, pay the expenses on the property, and apply whatever was left over from the rent payments to the indebtedness of the Lockes until the $10,000 was paid off. Respondents testified that Thigpen told them that it would be paid off in five or six years, after which time they could reclaim their property.

The instruments reflect an absolute sale of the land and fixtures and a lease back to the Lockes under which they were to pay rent for the continued use of the property as a grocery business. Thigpen assumed a vendor’s lien of about $3,500 on the property.

The only evidence other than Locke’s testimony that respondents thought they were signing a lease as lessors rather than a deed is found on the face of the printed lease agreement: the Lockes signed that instrument on the line marked “Lessor”. The body of the lease agreement identifies Thig-pen as lessor and respondents as lessees.

Immediately after signing the papers on January 2, 1951, the Lockes moved to another town and began selling chickens, leaving Locke’s brother in charge of the store.

A few months after the execution of the deed, lease, and bill of sale the Lockes executed another instrument which Mr. Locke did not remember reading; this was a bill of sale on the grocery store stock transferred to Thigpen in satisfaction of arrear-age in rent payments to Thigpen under the lease of January 2, 1951. This bill of sale describes the property and expressly refers back to the deed and lease of January 2, 1951.

The Court of Civil Appeals has held that it was error for the trial court to instruct verdict because (a) whether or not there was a confidential relationship is a jury question; (b) there was some evidence from which a jury could infer that there was a confidential relationship; and (c) respondents’ suit was not as a matter of law barred by the statute of limitations, but that there was a fact issue raised as to the reasonableness of respondents’ five or six years’ delay in attempting to get back their property. Petitioner Thigpen’s application for writ of error was granted on points of error complaining of these three holdings.

As stated above, respondents have pleaded and argued on appeal three separate grounds for the imposition of a constructive trust; (I) Thigpen was guilty of actual fraud; (II) this was not an absolute conveyance but a mortgage transaction; and (III) there was a relationship of trust and confidence and breach of fiduciary duties-constituting constructive fraud and giving rise to a constructive trust.

I.

Under the first ground respondents seek to invoke the rule that equity will impose a constructive trust to prevent one who-: obtains property by fraudulent means from being unjustly enriched. Scott on Trusts, Vol. I, § 44.1, p. 251. The respondents'' pleadings allege, and their reply brief argues, two inconsistent factual theories of actual fraud: (A) that this was an agreement whereby respondents voluntarily deeded the property to Thigpen in return for his oral promise to reconvey when the $10,-000 debt had been paid off, which promise-Thigpen did not intend to honor at the time he made it; and (B) that Thigpen led respondents to believe that the instrument was-not a deed but a lease and that they signed believing it to be a lease.

The first theory of fraud alleged is-based on the rule of Turner v. Biscoe, 141 Tex. 197, 171 S.W.2d 118, that when a grantor voluntarily conveys land to a grantee upon the false oral promise that the grantee will reconvey, such is actual fraud justifying the imposition of constructive trust. The requisite fraudulent misrepresentation is as to the grantee’s state of mind. Respondents contend that they have met their burden of offering some evidence on both elements of this theory of fraud and that it was therefore error for the trial court to sustain the instructed verdict against them. We do not agree that there is any evidence in the record of the first theory of actual fraud. Instead, we think that on the trial respondents elected between the two theories and offered testimony only on the theory that they did not know what they were signing. The rule of Turner v. Bis-coe, supra, is based upon the premise that the grantor consciously deeded his land away on the strength of an oral promise by grantee that he would reconvey, not that he thought he was granting a leasehold.

Mr. Locke’s testimony as to what they understood the agreement to be is as follows :

“Q. Would you mind stating in your own words just what that agreement was ?
“A. The corporation was going to continue to operate the store; the corporation was going to give Mr. Thigpen the right to collect the rent off of my property and apply such rent that was collected against the indebtedness I owed him or the Bank of the Southwest, whichever it was, and that is what I thought I was executing when I executed * * * —
******
“Q. Now in that connection, what line does your own signature appear on?
“A. [Locke looking at the instrument] Lessor.
******
“Q. In connection with your conversation with Mr. Thigpen about him, that he was going to collect the money, collect the rent off of this property and use the money to pay expenses, pay the loan on the property, the expenses on the property and what was left pay himself, pay the rest of it to himself, was anything ever said about how long he thought it would take before he would get his money back?
“A. Between five and six years, that was the reason for the five-year lease.
* * * * * *
*‘Q. As a result of the conversation you had with Mr. Thigpen, in other words, at the time you had it before these papers were signed -in January of 1951, would you mind stating whether or not it was your understanding that you and Mrs. Locke would lease this property to Mr. Thigpen ?
“A. Right, sir.”

This testimony taken most favorably to the respondents does not give rise to the inference that they consciously deeded the property on any oral promise to reconvey. The question of whether or not there was some evidence of fraud under Turner v. Bis-coe must be answered in the negative.

As to the contention that there was some evidence on the second theory of actual fraud, petitioner has interposed the rule that a party to an arms-length transaction is charged with the obligation of reading what he signs and, failing that, may not thereafter, without a showing of trickery or artifice, avoid the instrument on the ground that he did not know what he was signing. Indemnity Insurance Company of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553. This rule is but a narrower application of the principle that the party claiming fraud has a duty to use reasonable diligence in protecting his own affairs. “In an arm’s-length transaction the defrauded party must exercise ordinary care for the protection of his own interests and is charged with knowledge of all facts which would have been discovered by a reasonably prudent person similarly situated. And a failure to exercise reasonable diligence is not excused by mere confidence in the honesty and integrity of the other party.” Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197.

There is no evidence of active trickery or deceit in this record. But respondents contend that they were relieved of the duty to read the instruments because of the relationship of trust and confidence, that, on the contrary, Thigpen as a fiduciary owed them the duty of fully disclosing to them what it was they were signing, and that failure to disclose is sufficient deception to take the case out of the rule in Indemnity Insurance Company of North America v. Macatee, supra. In the interest of clarity we lay that question aside until we reach our discussion of the points of error dealing with confidential relationship.

II.

The second main ground upon which respondents base their claim of entitlement to a constructive trust is that this was intended as a security transaction and not an absolute conveyance. The doctrine which respondents seek to invoke here arises from the equitable rule that parol agreements may be proved to show that what appears to be an absolute conveyance is actually a mortgage, irrespective of fraud. Bradshaw v. McDonald, 147 Tex. 455, 216 S.W.2d 972; Wilbanks v. Wilbanks, 160 Tex. 317, 330 S.W.2d 607; 4 Pomeroy Equity Jurisprudence, (5th ed., 1941) § 1196, p. 581. This rule covers the, case in which a grantor voluntarily conveys property to a grantee who orally promises to reconvey, presumably intending at the time to keep his promise but who subsequently refuses or fails to perform.

It is true that some courts give the grantor relief in these security arrangements by way of the constructive trust device, reasoning that the breach of the oral agreement is evidence which may be considered in determining whether or not there was fraud in the original agreement, but the usual view is that mere breach of contract is not fraud and that it may not be evidence of fraud. The constructive trust, according to the latter view, requires actual or constructive fraud or other inequitable behavior at the time the original transaction is entered into. 54 Am.Jur., Trusts, § 231, p. 177.

It is well settled in Texas that an absolute deed may be shown by parol evidence to be a mortgage, Bradshaw v. McDonald, supra; Wilbanks v. Wilbanks, supra, but the Texas courts generally have not based relief on the constructive trust device. This court has held that mere breach of an oral contract is not fraud and that subsequent breach is not evidence that may be considered in determining whether or not there was fraud in the original transaction. Turner v. Biscoe, supra. This court has also, held that actual or constructive fraud is essential to a constructive trust. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158. There are, however, cases to the contrary. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938.

But whatever the state of the Texas decisions in this area, they do not apply to-respondents’ case; for, as we have pointed, out above in our discussion of the fraud-ground, there is no testimony by the Lockes-tending to show that they consciously deeded, their property to Thigpen; their testimony consistently is that they believed they were, leasing it to him.

III.

We have eliminated respondents’ first two-grounds; if they are entitled to a constructive trust, it must be on the ground that they had entered into a relationship .of trust and. confidence with Thigpen. Respondents’ theory is that Thigpen breached his fiduciary duty by failing to fully disclose to-them that they were signing a deed rather than a lease. If there is a confidential relationship, respondents would be relieved of' the duty of reading the instruments and: could' justifiably rely on their fiduciary, Thigpen, to treat them with the utmost fairness. The effect of establishing the relationship of trust and confidence would be to remove from the case the rule of Indemnity Insurance Company of North America v. Macatee.

Petitioners’ points of error complain that the Court of Civil Appeals erred in holding-that the existence of confidential relationship is a fact question for the jury, erred in holding that there was some evidence to go-to the jury, and erred in holding that limitations had riot as a matter of law run against respondents’ cause. 1

Restatement of Restitution defines the confidential relationship as existing “ * * * where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment or advice of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transferor.” Restatement of Restitution, § 182, Comment on clause (b), p. 735.

In the cases of Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985, and Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, this court recognized that confidential relationships may arise not only from the technical fiduciary relationships such as attorney-client, trustee-cestui que trust, partner and partner, etc.—which as a matter of law are relationships of trust and confidence—but may arise informally from “moral, social, domestic or purely personal” relationships. 54 Am.Jur. 173, § 225, “Trusts”. (Quoted in Fitz-Gerald v. Hull, supra.) The existence of the fiduciary relationship is to be determined from the actualities of the relationship between the persons involved.

Taking the testimony as a whole and most favorably to the respondents, we hold that in this case there is not such evidence of justifiable trust and confidence as will create a fiduciary relationship. We may assume that respondents did trust Mr. Thigpen; they have testified so time and time again, but mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship so' as to avoid the statute of frauds. Businessmen generally do trust one another, and their dealings are frequently characterized by cordiality of the kind testified to here. If we should permit respondents to set aside their conveyances on such slender evidence, the security of contracts and conveyances in this state would be seriously j eopardized.

In Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 562, Judge Smedley said:

“ * * * We realize that a constructive trust does not arise on every moral wrong and that it cannot correct every injustice. [Citation omitted.] It must be used with caution, especially where as here proof of the wrongful act rests in parol, in order that it may not defeat the purposes of the statute of wills, the statute of descent and distribution, or the statute of frauds.”

Our holding in no way detracts from the principle that a relationship of trust and confidence may be shown to arise informally from purely personal relationships. All we hold is that respondents do not testify to facts—other than their own subjective feelings—which show that their relationship with Thigpen was anything more than a debtor-creditor relationship.

We reaffirm the principle that parties to a contract have an obligation to protect themselves by reading what they sign. Unless there is some basis for finding fraud, either actual or constructive, they may not excuse themselves from the consequences of failing to meet that obligation because they unwisely trusted the other party. Indemnity Insurance Company of North America v. Macatee, supra; Courseview, Inc., v. Phillips Petroleum Co., supra.

In view of our holding in this case it is not necessary for us to reach petitioner’s point of error dealing with the statute of limitations.

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

CALVERT, C. J., and WALKER and STEAKLEY, JJ., dissenting.

CALVERT, Chief Justice

(dissenting).

Our decision in MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334, holds, on an issue squarely presented, that a business relationship not meeting the legal standards of a partnership or joint venture or any other legal relationship giving it a technical fiducial character may yet be such a confidentiál relationship as to impose fiducial duties and obligations upon the parties to it. In that case we deliberately disavowed any holding that MacDonald and Follett were either tenants in common or cotenants in certain oil royalty interests and predicated our decision on a holding that they were nothing more than joint owners, a relationship which we recognized does not in and of itself constitute a technical fiducial relationship. We nevertheless held that evidence of dealings between the parties raised a fact issue as to whether there was such a confidential relationship as to impose fidu-cial duties and obligations on one to the other and to form the basis for imposition of a constructive trust. We said:

“ * * * Whether or not joint owners of overriding royalty interests sustain relations of trust and confidence toward each other depends upon the facts and surrounding circumstances. * * *
“This is a suit in equity and in that realm the conduct of parties is judged by refined standards. No rules can be prescribed and no attempt should be made to formulate rules for the measurement of conduct by courts of equity, but that such conduct must be measured by standards exacting the utmost fidelity between the parties is universally recognized.”

In Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261, we quoted with approval from 54 Am.Jur. 173, Trusts, § 225, and thus recognized that a constructive trust may be predicated upon an .abuse of confidence which springs from “either a technical fiduciary relationship or of an informal relationship where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.”

Our late decisions seem thus to commit us to the conclusion that a relationship of trust and confidence predicating the imposition of a constructive trust can grow out of business associations. There is not the slightest indication in our decisions, or in any other coming to my attention, that a business association of debtor and creditor is an exception to the rule.

One other holding in MacDonald v. Fol-lett is important to the proper disposition of this case. With the issue squarely drawn before us, we held that whether facts existed which would create a confidential relationship was for the jury or trier of the facts to decide. In the later case of Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 999, we held that whether a confidential relationship existed as a predicate for imposition of a constructive trust was “a question of fact.” It could hardly be otherwise once we recognize that confidential relationships are not confined to legal relationships but may grow out of informal social and business relations. As in most fields of the law, we will have cases in which we can say that the evidence establishes conclusively that there was or was not a confidential relationship, but there will be others in which the evidence will leave the ultimate inference to be drawn in that grey zone in which the trier of facts has always functioned in our system of jurisprudence. Our difficulties begin, of course, when we are called upon to determine whether the evidence in a particular case creates a grey zone,

In this case the trial judge concluded that the evidence did not raise a question of fact as to the existence of a confidential relationship between the parties and instructed a verdict for Thigpen. In determining whether that action was erroneous we must follow the familiar rule of considering only the evidence and the inferences arising therefrom which tend to establish a confidential relationship. Unfortunately, when we have completed that task we are still without an easy answer to the problem because we have no precise rule to measure the probative force of the evidence and the inferences we have considered. One of the best statements of a rule of measurement which I have found is in Collins v. Nelson, 193 Wash. 334, 75 P.2d 570, 574, as follows:

“To establish a fiduciary relationship upon the violation of which fraud is sought to be based, there must be something more than mere friendly relations or confidence in another’s honesty and integrity. There must be something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.”

The majority opinion sets out in paragraphs 5, 6, 7, 8 and 9 most of the evidence which it is claimed authorizes a finding of a confidential relationship. That and such other evidence as seems relevant, together with what I regard as reasonable inferences therefrom, will be included in my summary.

In mid-1947 Locke needed money. He and Thigpen were brought together by a mutual friend. Thigpen aided Locke in obtaining the needed loan. From that incident a casual personal and business relationship developed, with Thigpen making some of his purchases at Locke’s store. In July 1949 Thigpen learned that Locke needed $5,000.00 and that to obtain a loan in that amount was willing to execute a note for $6,000.00. Thigpen made the loan of $5,000.00 and took Locke’s note for $6,000.-00. Thigpen had Locke execute a deed conveying to him the real property in which the grocery business was located. Thig-pen’s testimony shows that this deed was intended by him to be nothing more than a mortgage. Locke’s testimony is that he did not read the instruments executed on that occasion and did not know he had executed the deed until his deposition was taken in connection with this suit.

If the dealings between the parties had terminated at that point and Locke’s legal rights turned on the existence of a confidential relationship as excusing his failure to read the instruments he signed, I would conclude that the evidence fails as a matter of law to raise a fact issue as to its existence. But their dealings did not end at that point; and the two-years’ friendship and 1949 loan may be considered as a part of the whole picture which existed in January 1951 when the second deed was executed.

A jury could find that from the date of the 1949 deed, Thigpen practically took over the direction of the financial affairs of the grocery business. The business dealings between the parties became informal and lax. Locke did not make some of the promised regular payments on his note but Thigpen took no action to force prompt payment. Thigpen made advances to and payments on Locks’s behalf without at the time requiring any written promise to repay, being content to assimilate the advances into a written obligation at some later date. In January 1950 Thigpen guaranteed a line of credit of $1,000.00 for Locke without requiring security. Locke began to rely on Thigpen as his business adviser. He took Thigpen with him to a conference with another grocer when he was considering joining a chain arrangement. Thigpen advised against it and Locke abandoned the idea. Thigpen advised incorporation of the grocery business. Locke accepted the advice. Thigpen arranged for the preparation of the articles of incorporation and paid in the $1,000.00 capital, taking the risk of obtaining reimbursement from profits of the business. He took two shares of the stock himself and became vice-president and a director of the corporation. He was not satisfied with Locke’s bookkeeping system, or lack of one, and had a system installed. Thig-pen and his son kept the books. According to Thigpen’s testimony the corporation never really functioned. The business did not prosper.

Such was the state of the business dealings of the parties in November or December 1960. To all intents and purposes the parties were jointly interested in and jointly operating the grocery business; perhaps not as a technical partnership but most certainly as some type of joint undertaking. A jury could conclude that of the two Thigpen had become the dominant and Locke the servient figure in the business. The record does not record a whisper of dissension or ill-feeling between the two. Locke’s debts were worrying him. He considered bankruptcy and mentioned it to Thigpen. He said he wanted to pay his debts and didn’t want Thigpen to lose his money. Thigpen advised against bankruptcy. Locke abandoned the idea when Thigpen suggested a way out: If Locke would lease the real property (to which Thigpen already had a deed) to him, Thig-pen would pay all of Locke’s debts total-ling some $9,900.00, lease the business back to him for $75.00 per week, pay all taxes, insurance, etc., and apply the balance of the rentals to the indebtedness until fully paid, which would take five or six years, and then would turn the property back to Locke. Locke agreed.

In January 1951 Locke executed a deed to the real property and a bill of sale to the fixtures. At the same time he and Thig-pen executed a written lease agreement of the business which recited that Thigpen was lessor and Locke was lessee but was signed by Mr. & Mrs. Locke as lessor and by Thigpen as lessee. Locke’s testimony is that he did not read the instruments because he understood they were being executed to carry out the December agreement and because of his trust and confidence in Thigpen. He did note that he signed one of the instruments as lessor, and this was in keeping with his understanding of the agreement to lease to Thigpen. When asked specifically why he did not read over the papers before he signed them, he answered: “I never did read any papers from Mr. Joe. He handled everything for me, all the contracts, I never had any trouble and didn’t anticipate any.”

Do the evidence and the reasonable inferences therefrom, related above, raise an issue of fact as to the existence of a confidential relationship between Locke and Thigpen when the deed was executed in 1951? I think they do. At the time of, the execution of the instruments Locke and Thigpen had been personal and business acquaintances for three and a half years; they had occupied a business relationship of debtor and creditor for one and a half years; each had an investment in the business which by their joint efforts they were seeking to protect; Thigpen’s conduct over the one-and-a-half-year period was such as to inspire and justify a special confidence; many of his own dealings with and on behalf of Locke were too lax to indicate an arms-length relationship, indicating instead a reciprocal trust and confidence; Thigpen was the adviser, the dominant adventurer, and Locke was the advised, the servient adventurer.

In my opinion a trier of facts would be justified in finding that such a confidential relationship existed as to excuse Locke’s failure to read the instruments he signed in January 1951. The question does not turn on whether all of the things done by Thig-pen during his association with Locke can be related to the conduct of a careful creditor, but rather on whether the association and the conduct of the parties to it were such as to create a special relationship of trust and confidence justifying Locke in failing to read the instruments as should have been done by a party to an arms-length transaction.

It will be understood that what I have said does not mean that Locke’s version of the agreement preceding the execution of the 1951 deed and his statement that he did not read or know he was executing a deed must be believed. Thigpen’s version of the agreement is that Locke wanted out of the grocery business and willingly conveyed the real estate and the fixtures and equipment of the business upon Thigpen’s assumption and payment of Locke’s debts amounting to some $9,900.00. The testimony simply presents a controverted fact issue which it is the duty of the trier of facts, and not of this court, to resolve.

I recognize that the imposition of constructive trusts in cases such as this may broaden the possibilities of fraud in avoiding business transactions which the Statute of Frauds would otherwise protect. Bogert states in his work on Trusts and Trustees, 2nd Edition, p. 150: “In various cases efforts have been made to secure an adjudication that parties in business relations were in a confidential relation to each other, but the courts have been inclined to deny such a finding, except in exceptional cases.” But we have already faced up to the unsatisfactory results which may ensue and weighed them in the scales of justice. In Schiller v. Elick, 150 Tex. 363, 240 S.W.2d 997, 1001, we said:

“It might be argued that this holding imposes a higher standard of business ethics upon the parties to a real-estate transaction than the law has a right to expect. The growth of the law has been consistently towards higher ethical standards, [cases cited]. Extending the term ‘fiduciary’ beyond formal relationships (as, for example, guardian and ward) widens the possibility of attack by perjury upon legal instruments, but this has been determined as not controlling in Fitz-Gerald v. Hull, supra, and cases there cited.”

It cannot be said that the right of action is barred by the statute of limitations as a matter of law. The suit developed by the evidence is not one to cancel a deed for fraud but is one to impose a constructive trust. The cause of action did not accrue until Locke knew or by the exercise of diligence should have known of the breach of confidence. The representation to him, according to his testimony, was that the property would be turned back to him when the rents had paid the indebtedness, which would take five or six years. Five years from the date of the transaction expired in January 1956. Locke testified that he learned from Thigpen of the execution of the deed and that the property would not be returned to him later in 1956. His suit was filed on January 13, 1958. It is not shown conclusively that he should have obtained this information at an earlier date.

I would affirm the judgment of the Court of Civil Appeals.

WALKER and STEAKLEY, JJ., join in this dissent.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Carroll Lynn McCAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35149.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.

      John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and I. D. McMaster, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of barbiturates; the punishment, 1½ years in jail.

Appellant and her companion Glenda Ki-ger were shopping in a J. C. Penney Store in Houston when several pairs of gloves dropped from a bundled-up coat Glenda was carrying. She ran from the store but was apprehended and taken to the manager’s office on the seventh floor. The appellant did not leave the store. After Glenda was brought back appellant went to the manager’s office and offered to pay for the goods which had been taken by Glenda. She remained there until officers arrived.

Officer J. D. Walker grabbed appellant’s wrist as she pulled her hand out of her coat pocket. Over objection that the evidence was obtained as the' result of an illegal search, the state was permitted to prove that three bottles were taken by Officer Walker from appellant’s hand, which with their contents were introduced in evidence, and was permitted to prove that in one of the bottles there were 28 red capsules which contained a barbituric acid derivative; that another contained demerol or isonipecaine, a clear liquid; and that in the third were found 7 brown capsules containing amphetamine.

The sole ground upon which reversal is sought is the refusal of the trial court to grant appellant’s motion for instructed verdict, the contention being that the evidence as to the barbiturates found in appellant’s possession was obtained as the result of an unlawful search incident to an illegal arrest.

We need not pass upon the question of whether the barbiturates and the evidence showing that such drugs were found in appellant’s possession was unlawfully obtained, for the reason that the appellant testified at the trial:

“I had one of the bottles in my pocket and he pulled my hand out and took the bottle out of it.” * ' * *
“Q. All right. And how did he get the other two bottles?
“A. He put his hand in-my pocket and got the other two.”.
* * * * * *
“Q. You knew those three bottles were in your coat pocket, did you not ?
“A. Yes, sir, I did. * * *
“A. They were in my pocket but they weren’t mine.
“Q. You knew they were in your pocket, did you not ?
“A. Yes, sir.” * * *
“Q. Without knowing what you were doing you merely took this stuff from her and put it in your pocket ?,
“A. Yes, sir.” * * *
“Q. And you are trying to tell this jury that you don’t know what was contained in those bottles?
“A. No, sir, I have never seen it.”

As we understand the record, appellant admitted having in her possession the three bottles' which the officer testified he took from her hand, her defense being that she had received the bottles from a woman whose name she did not know, and that she did not know what was in them.

The appellant having testified and admitted that she possessed the bottles, one of which contained a barbiturate, is in no position to complain of the introduction of the evidence of the officer to the same effect. Rodriguez v. State, Tex.Cr.App., 329 S.W.2d 282; Welch v. State, 143 Tex.Cr.R. 529, 154 S.W.2d 248, 155 S.W.2d 616.

The jury resolved the fact issues against appellant and the evidence is sufficient to sustain their verdict.

The judgment is affirmed.


author: McDonald, judge.

text:
    Guadalupe GUAJARDO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34788.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    See also 354 S.W.2d 141.
    Bonilla, Thomas & De Pena by Harold A. Thomas, Corpus Christi, for appellant.
    Sam H. Burris, Dist. Atty., and John L. Campos, Asst. Dist. Atty., Alice, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, life imprisonment.

The evidence reflects that following an. evening of heavy drinking, the appellant got into a fight with several friends. Appellant’s testimony reflects that, after running from the scene of the scuffle, a car tried to run him down. He ran home and got a revolver, but his mother seized the cartridges and refused to give them to him.

His mother testified that a car pulled up in front of the house just as her son got there and that the occupants were yelling .and cursing the appellant.

The appellant went to several neighbors’ homes in search of ammunition, but was unsuccessful. He decided to break into a friend’s home, where he knew shells were kept. In the dark, he found four or five shells, which he thought were rat shot. (The evidence reflects that the deceased was hit by one “rat shot” and one regular .22 calibre bullet.)

The sheriff of Duval County was called to the house, apparently by a neighbor, and caught the appellant just as he crawled out of a window. In a few moments, several other police officers arrived, and the appellant was turned over to Constable Pedro Sendejo. As the sheriff and some of the others checked the house, they heard Sende-jo say to the appellant “not to get curious, to get your hands out of your pockets.” Shortly thereafter, two shots were fired.

Deputy Sheriff Molina testified that he saw the appellant shoot the deceased and heard him say, “they were not going to take him, nobody was going to arrest him,” and saw the appellant run across the street into a vacant lot.

When the sheriff heard the shots, he ran around the house and found Sendejo in the arms of Deputy Sheriff Amaya. Sende-jo said, “He got me,” and died within a few minutes.

The officers went to appellant’s house, which was located one-half a block north of Oscar Garcia’s house, where the shooting occurred, and found the appellant’s father holding the appellant, who was hollering “that he would not give up, that he would rather be killed than give up.” When the sheriff got there, appellant had a .22 calibre gun in his right hand, which he surrendered to the sheriff.

Appellant was then taken to the Duval County jail, where he wrote out a confession to the county attorney and admitted his guilt.

The issue of insanity was raised by file appellant, and there was expert testimony on both sides. The jury resolved this issue against him.

The sole contention urged by appellant in his brief is that the assistant district attorney made an improper argument in his opening remarks to the jury. The following is that portion complained of:

“Now, Mr. Burris and I, we know, and you all know, of course, you are charged here, that in this case you can send this man to the electric chair; and we feel, the State of Texas through its District Attorney and Assistant District Attorney, feel that this case warrants the approval of a death penalty. However, if in your mind you feel that you cannot, within your conscience, give this man the death penalty, then we submit to you: give him life imprisonment or ninety-nine years in the penitentiary. Just remember that the purpose of punishment is not only to punish the offender; that’s not the only purpose. The purpose of punishment also is to deter other would-be crooks. So bear that in mind, that you are the conscience of your community. You are going to speak out for this community and let the rest of the state know exactly what this community thinks about people that kill law officers.
⅞= * ⅜ * * *
“Okay. Yes, you are the conscience of this community. You speak for this community, and the State of Texas feels that this case warrants the imposition of the death penalty, and if that can’t be done, if you cannot do it within your own conscience, then by all means we respectfully request that you give him life imprisonment, or ninety-nine years in the penitentiary.”

We think this was clearly a plea for law enforcement and permissible under the holdings of Scarborough v. State, Tex.Cr.App., 344 S.W.2d 886, and Lockett v. State, 155 Tex.Cr.R. 55, 231 S.W.2d 416.

In Scarborough, supra, the prosecutor argued:

«⅜ * * by your verdict under the law and the facts let me know and let this court know what the penalty for murder of this type is in Dallas County.”

and that:

“ * * * ‘the law is no stronger than the weakest heart on this jury’.”

In Lockett,, supra, the assistant district attorney said:

“When this day is over and you men have returned a verdict in this case, history will record whether or not a killer like that defendant sitting over there, can continue to shoot and murder men and go free in Lubbock County, Texas. History will record how you stand on this matter; history will record the fact that if a killer like this defendant sitting over there can do what he has done and go free, that there is no need for ever trying another man for murder in Lubbock County. You are making history in this case and don’t forget that.”

We have carefully reviewed the various informal bills of exception and find no reversible error reflected by any of them.

Finding the evidence sufficient to sustain the jury’s verdict and no reversible error appearing, the judgment is affirmed.


text:
    Charles Lee ROBERTS, Appellant, v. The STATE of Texas, Appellee.
    No. 35029.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rehearing Denied Jan. 16, 1963.
    John Bradshaw, Houston, for appellant.
    Frank Briscoe, Dist. Atty., and Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from an order revoking probation. Some two months prior to the entry of this complained-of order, appellant had been placed on probation, pursuant to a plea of guilty to the offense of felony theft, for a period of three years. One of the conditions and terms of probation imposed upon appellant was that he “Commit no offense against the laws of this or any other State or the United States.” The state alleged that appellant had violated the terms and conditions of his probation by committing the offense of aggravated assault.

The record at the hearing for revocation of probation reflects that appellant and another youth engaged in an altercation at a drive-in. This fight resulted in appellant’s adversary receiving a head injury inflicted by appellant with a small screwdriver. The evidence is conflicting. Appellant takes the position that he was acting in defense of his younger brother at the time of the1 fight and was also acting in defense of himself, his position being that he did not violate the law. The state’s evidence is to the contrary.

This appeal is predicated upon the sole contention that the trial court erred in revoking the probation and abused his judicial discretion in doing so.

The trial judge was the trier of facts. He was in position to observe the demeanor of the witnesses and to test their credibility and the weight to be given their testimony. The trial court concluded, after hearing' the' evidence, to adopt the state’s version of the transaction and resolve the issue of defense of another and self-defense, against appellant.

We-find'the evidence sufficient to sustain the action of ^.the trial court. To hold otherwise, .we. would have to reach the conclusion (that self-defense was shown as a matter of law. This we are not ready to do.

Revocation of probation is discretionary with the trial court. We find no abuse of discretion. Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 217; Stratmon v. State, Tex.Cr.App., 333 S.W.2d 135.

The judgment is affirmed.


author: WOODLEY, Presiding Justice.

text:
    William Alfred GURLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35080.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    Charles L. Ballman, Borger, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Justice.

The offense is operating a motor vehicle upon a public highway while intoxicated; the punishment, 3 days in jail and a fine of $100.

Texas Highway Patrolman Harvey De-harde testified that he observed the appellant driving an automobile on State Highway 70 on the wrong side of the highway; that he followed and stopped appellant’s car; that he opened the door and asked appellant to get out “and he did, and he almost fell when he got out. He went down to his knees, and he collected himself again and leaned against the car.” He further testified that he observed appellant for about 30 minutes; “He smelled heavily of alcoholic beverage, his breath did, and his face was extremely flushed—His eyes were all blood shot and glassy looking—he had extreme difficulty in standing and walking.” He expressed the opinion that appellant was intoxicated.

Patrolman Deharde’s partner, Patrolman Kenneth Harrison, gave similar testimony. Deputy Sheriff Luther Daves, who observed appellant after the patrolman brought him in, also expressed the opinion that appellant was intoxicated.

Testifying in his own behalf, the appellant admitted having consumed three cans of beer but denied that he was intoxicated.

The jury accepted the state’s version and the evidence is sufficient to sustain their verdict.

The sole ground for reversal advanced in appellant’s brief relates to the overruling of his motion to quash the information. The contention is that there was no valid complaint because the affiant had not been administered an oath at the time of signing the complaint as complainant.

The complaint appearing in the record is regular in form and shows to have been sworn to by Harvey Deharde before Jack M. Allen, County Attorney, on June 23, 1960.

When the case was called for trial on May 21, 1962, appellant’s counsel’s request that he be permitted to interrogate the complaining witness Deharde was granted and he was examined about “the matter of the information and complaint both being corrected.”

The testimony of the witness in advance of the trial appears in the statement of facts in question and answer form, which also shows the following: At the conclusion of the examination, appellant was. granted time to prepare a written motion. The motion made orally was that the information and complaint be quashed be-.: cause the complaining witness Deharde had testified that at the time of signing the complaint he did not know whether or not he was under oath, did not ,kn.ovy. if: he. w.as sworn; did not remember the County Attorney being there when he signed the complaint, and testified that he didn’t remember whether or not anyone administered an oath and did not know whether or not anyone administered an oath.

The court agreed that the motion could be reduced to writing and filed ‘later; and overruled it, and appellant excepted.

The transcript contains : a motion to quash the information incorporating the oral motion. It was filed May.29, 1962, and shows to have been presented and' overruled on May 21, 1962, with' permission granted to reduce the motion to writing at a later day. The transcript does not show any other ruling of the court or any exception to the overruling of the motion to quash.

As we view the record, the supposed-' error of the court in overruling appellant’s' motion to quash the information is not be- - fore us for review.

The motion appearing in .the tran-. script is deficient in that it is not shown that-the motion was overruled and that exception was reserved to such ruling.

The motion appearing as a part of the statement of facts in question and answer form cannot be considered, both because it was orally made, and because Art. 759a, Sec. 6, Vernon’s Ann.C.C.P. requires that the statement of facts relating to any motion heard in the case shall be filed with the clerk separately from the facts bearing upon the guilt or innocence of the defendant.

We have examined the testimony, shown in the hearing however; and find that the officer testified that he signed.the complaint m the clerk’s office and “I held up my hand and said ‘I swear this is true’ like I normally do,” but he did not remember that the county attorney was there.

If before us, no error is shown in the overruling of the motion to quash.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Jerry Robert RIDDLE, Appellant, v. The STATE of Texas, Appellee.
    No. 35010.
    Court of Criminal Appeals of Texas.
    Dec. 5, 1962.
    Rehearing Denied Jan. 16, 1963.
    Ben Henderson, Dallas, for appellant.
    Henry Wade, Dist. Atty., Neal English and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is driving while intoxicated; the punishment, confinement in jail for four months and a fine of $200.

The record is before us without a statement of facts.

By informal bill of exception presented in a transcript of the jury argument in the case, appellant complains of a remark made by state’s counsel during his closing argument, in which counsel stated that he was vouching for the testimony of the officers in the case. The bill of exception certifies that the court sustained appellant’s objection to such statement, instructed the jury to disregard the same, and overruled appellant’s motion for mistrial.

As a general rule, bills of exception to jury argument cannot be appraised in the absence of a statement of facts of the evidence adduced upon the trial. Walker v. State, 169 Tex.Cr.R. 531, 335 S.W.2d 843,

It is only where the bill of exception sets out all of the facts necessary to enable the court to determine the matter that a complaint to jury argument may be considered in the absence of a statement of facts. 5 Tex.Jur.2d, Sec. 166, page 263; Melton v. State, 103 Tex.Cr.R. 590, 281 S.W. 560.

While counsel in jury argument should not attempt to bolster the credibility of his witness, in the absence of a statement of facts of the evidence adduced upon the trial in the present case, including the testimony of the officers, we are unable to say that the remark of state’s counsel was injurious to appellant and calls for a reversal of the conviction. Elliott v. State, 156 Tex.Cr.R. 502, 243 S.W.2d 839; Barnes v. State, 159 Tex.Cr.R. 78, 261 S.W.2d 597; Rice v. State, 161 Tex.Cr.R. 89, 275 S.W.2d 105.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Erasmo SALINAS, Appellant, v. The STATE of Texas, Appellee.
    No. 35085.
    Court of Criminal Appeals of Texas.
    Nov. 28, 1962.
    Rehearing Denied Jan. 16, 1963.
    Longoria & Evins, Edinburg, Bridges & Oxford, Mission, for appellant. ■
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for-the State.
   BELCHER, Commissioner.

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

The injured party and the appellant are first cousins. On the date of the alleged offense both parties were interested as heirs in an estate which had not been settled.

The injured party testified that he stopped at appellant’s pool hall and asked him what had happened to some cattle of the estate, that appellant replied "I don’t know a damn thing” and walked away. Later the injured party went to see his uncle in a store near the pool hall. In a short time the appellant came in the back door of the store, began cursing the injured party, shot him in the back with a 25 automatic pistol and after he turned appellant shot him twice more in the body. One bullet-passed through the body and two lodged in the body.

The arresting officer testified that when he asked the appellant what happened he replied, “I put my foot in it. At a moment of anger I shot a man”, and then delivered the pistol' used.

. The physician who examined the injured party expressed, the opinion that he suffered almost fatal gunshot wounds and if rapid medical attention had not been given such wounds would have caused his death.

The appellant, testifying in his own behalf, stated that the injured party cursed him at the pool hall, told him he had a pistol witirMiich-to kill him but he did not see it, then appellant went home and got .his pistol to protect himself and that the injured party had threatened him before. 'Then h.e met,the injured party in a store and said, “Here you are,. you- s — - o- a ⅞-” and shot him only for protection because thé injured party-had told him he fyrottld kill' him,, but he- did not-intend to kill the injured party; that he heard no threats and saw no movements nor gun at the time, but the injured party had had a gun on a previous occasion. He admitted that he told the arresting officer that “I told him T-stúck my foot”, and testified that he shot the -ihjured party “ * * * with anger”. - ,

Appellant contends that the trial court erred in 'périnittiñ'g the injured, party to exhibit the ‘scars' made by the bullets from appellant’s pistol on the ground that they solved no disputed issue, were not in the same condi(ioq as they were immediately after the .shooting, and included a scar made by the physicians in an operation after the shooting.-

While testifying the injured party raised his shirt and pointed out to the jury the places on his body where he was shot; the first shot he said was in the spine, the bullet passing through his body and coming out in front, that scars also show where two other bullets entered and lodged in his body but his testimony is indefinite as to their location. He explained that a scar on the front of his abdomen was made by the surgeon during an operation to extract the two bullets and to repair the internal injuries.

The operator of the store was the only witness present during the shooting to testify other than the appellant and the injured party. He stated that the appellant shot four times. Although indefinite and uncertain, from part of his testimony it appears that the injured party was shot in the left part of the back on his waist line, another shot missed his head, and to the questions: “Are you indicating that he shot him from the side, from his side?” the witness answered “Yes”. * * * “Q. . But, Delio (injured party) was not giving his back to Erasmo (appellant) when he was shot? A. No, sir.”

The testimony of the injured party and the appellant about whether the first shot was in the back or the front of the body is in direct conflict; that of the operator of the store is indefinite as to where all the shots struck the body. There are no photographs or description of the scars that would authorize this Court to conclude that they had an ugly, ghastly or revolting appearance or condition such as would be reasonably calculated to influence and prejudice the rights of the appellant with the jury.

The complaint of the exhibition of the scars to the jury under the record presented does not show error. 4 Branch 2d, 175, Sec. 1816.

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

Opinion approved by the Court.


author: 'WOODLEY, Presiding Judge.

text:
    Joe ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
    No. 35156.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgourides and Edward N. Shaw, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   'WOODLEY, Presiding Judge.

The offense is the unlawful possession of amphetamine; the punishment, one year in jail.

The undisputed evidence, including the testimony of the appellant, shows that when arrested he had in his pocket an unlabeled vial in which were 5 or 6 tablets or pills.

Toxicologist Robert F. Crawford testified that he ran a chemical analysis on the contents of the vial which showed that each of the five grain tablets contained amphetamine.

The appellant testified that the pills or tablets were given to him by a truck driver, and that he so informed the arresting officer. He testified that he did.-not -examine them and did not know what they were or know that they contained amphetamine. The arresting officer testified that appellant told him he got the tablets from Dr. Thomas.

The jury resolved the issue against the appellant and the evidence'is sufficient to sustain the verdict.

No brief has been filed in appellánt’s behalf, and there are no bills 6f exception, and no exceptions relating to the court's charge.

The judgment is affirmed.


text:
    Aubrey MERKEL, Appellant, v. The STATE of Texas, Appellee.
    No. 35112.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for felony theft; the punishment, enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital, life.

Appellant has filed no brief; there are no formal bills of exception.

Among the corporeal personal property the indictment alleged were stolen were the following items, with the value alleged and the value shown by the state’s evidence:

Description of property Value shown Value by State’s alleged evidence

1 hydraulic jack $15.00 $20.00

1 chain boomer 7.50 10.00

2 ratchet wrenches 7.50 10.00

9 open end wrenches 10.00 15.00

3 box-end wrenches 15.00 22.00

1 grease gun 4.00 4.00

1 Nylon Fleece lined

Jacket 10.00 10.00

A witness called by the defense testified that the value of the items other than the jacket would be $48.54. Taken in the light most favorable to the state, the testimony of the defendant’s witnesses shows that the value of the property taken exceeded the reasonable market value of $50.

In regard to his return to the area where the truck was parked,'Mr. Wall related:

• “This man-here* had his car parked behind the éa-fe and he had everything loaded but the jack, and when he saw us he stood up and looked at us. When he saw us, he opened the back door, throwed the jack in, and I told Gene, I said, ‘That looks like my jack’. So, •as I got out of the pickup he jumps in his car and goes over to Mr. Burnham’s scales, behind his feed store.
“Q. Who does? A. Mr. Merkel.
“Q. That is this defendant? A. Yes, sir.
“Q. You identify him as the man?
A. Yes, sir.
“Q. Good. A. And when I looked in my tool box, well, all my stuff was gone, and looked in the truck, and spark plugs and everything was gone out of it.”

Three persons who observed appellant removing the tools from the truck testified. One of them, Clay Lynn, an eleven year old boy, had taken down the license number of the car into which appellant placed the items taken from the truck.

While appellant was being placed under arrest his woman companion drove off in the car but was stopped within ten minutes. A search of the car produced the above described items which were identified by Mr. Wall as the property taken from his truck.

Mr. Wall stated that the items taken were his property and that they were taken from his possession without his permission, knowledge or consent.

Two of the prior convictions alleged were proved and appellant’s identity as the defendant so convicted was established by the introduction into evidence of the records of the Texas Department of Corrections, including certified copies of the judgment and sentence in each case, and the testimony of an expert who compared the fingerprints which were a part of the record in each case and known prints of the defendant and testified that the fingerprints were made by the same man, and the testimony of two witnesses who identified the appellant as the defendant previously convicted.

The evidence is sufficient to sustain the conviction and no error appears.

The judgment is affirmed.


author: McDonald, Judge.

text:
    Ruth Virginia JOLLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34695.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    Rehearing Denied Jan. 2, 1963.
    James J. Shown, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, Judge.

This is a conviction for the felony offense of driving while intoxicated, as defined in Art. 802b, Vernon’s Ann.P.C., with punishment assessed at confinement in the penitentiary for one and one-half years.

The state’s testimony shows that on the date alleged, appellant was seen driving her 1950 Buick automobile at an unlawful rate of speed, over the center line in the lane of traffic coming from the opposite direction on Second Avenue, a public street in the city of Dallas; that a patrolman with the Dallas police department, upon observing the incident, stopped the automobile, placed appellant under arrest, and at the trial below identified her as the driver of said automobile; that two other police officers arrived upon the scene after appellant was stopped; that each officer had the opportunity to observe appellant’s condition, which was described as follows: “Had an odor of strong, an alcoholic odor” coming from her breath; eyes “were flushed in red * * * very erratic on her feet, swaying and unable to stand.” Based upon these facts and previous experiences with people who were known to be under the influence of intoxi-eating liquor, the officers expressed their . opinion, that at such time appellant was intoxicated.

Appellant, testifying as 'a witness in her own behalf, denied that" she was intoxicated ■ and stated that she hád not consumed any intoxicating beverage on the date in ques- ' tion, but that she had taken some pepto-bismal for a stomach ulcer. She further'1 testified that she was driving without .the use of her glasses.

J. T. May, a doctor of optometry, called. as a witness by appellant, testified that he had treated her during the past few years for an eye disorder which impaired her vision but that the defect had been corrected by the prescription for glasses.

The jury resolved the disputed issue of intoxication against appellant, and we find the evidence sufficient to sustain their verdict.

There are no objections to the court’s charge, and only one formal bill of exception-appears in the record.

By said formal bill, appellant complains of the overruling of her motion for new trial based on the ground that the statement of facts prepared by the court reporter is incorrect. A hearing was had on the motion, and the evidence there adduced is incorporated in appellant’s bill. The formal bill, which is approved by the trial court, reflects no- error. The contention is overruled.

Appellant has also brought forward, in a supplemental transcript, the statement of facts heard on her motion for a change of venue, together - with numerous newspaper clippings offered by her in support of her change-o f-venue motion. The motion is rather unique in that it does not allege the usual allegation that .a prejudice exists against the defendant in Dallas County; instead, the motion alleges that there exists in Dallas County so great a prejudice against the offense alleged that she cannot obtain a fair and impartial trial in said county.

We have carefully reviewed all the evidence adduced at the hearing on said motion, and we perceive no error in the action of the trial court in overruling it. We express the opinion that said motion is -not in compliance with the terms of Art. 562, Vernon’s Ann.C.C.P., which, briefly stated, only enumerates .two causes for the granting of a change of venue, namely:

(1) prejudice either exists against the defendant in the county where the prosecution is commenced, preventing him from getting a fair and impartial trial, and (2) there is a dangerous combination against him .instigated by influential- persons, by reason of which he cannot expect a fair trial,

and that the cause alleged by appellant for seeking a change of venue is not within the purview of the statute, supra.

The trial court has discretion in passing upon change of venue, and the applicant for a change of venue has the burden to prove the existence of the prejudice against him preventing a fair and impartial trial, such issue to be determined by the trial court. Handy v. State, 139 Tex.Cr.R. 3, 138 S.W.2d 541; Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003.

Appellant contends, by brief filed by her counsel, that several informal bills of exception reflect error. We think that the most serious contention made by appellant by any of these informal bills was that the trial judge fell into error in announcing a ruling on an objection, which ruling, appellant contends, “assumed that appellant' had been convicted and so stated before the jury.”

Dr. J. T. May testified as a witness for appellant. The doctor was asked: “Do you see the defendant in the court room today?” He responded “Yes, sir, but I don’t know her under-this name.” Appellant’s testimony reflects that she had been married twice. Upon cross-examination she was asked: “Were you known as Virginia Burton?” Objection was taken by her counsel, and then the court ruled: “Sustained, about Virginia Burton, anything that was brought out. Now, I don’t know whether that was the one the doctor referred to, but if it is, he has a right to go into that.” The witness replied: “That was my maiden name.” The court stated: “Well, I don’t know what name it was. He never did say.” Appellant was then asked if she had also been known as Vivian Mur-dock. Objection was taken, and the court then ruled : “Here is my ruling on it. * * The part the doctor referred to I think you can ask her about that name she used there, anything about the name she used in this other offense, but any other matters, I sustain that. Go ahead.”

The appellant then testified that the doctor knew her by the name of Rudell Virginia Heath, her maiden name. She was then asked by state’s counsel if she had been known as Vivian Murdock, at which time objection was taken and a motion for a mistrial made. The court then ruled: “Sustain that. I don’t know whether you understood my ruling or not, but listen to me, now. * * * There was two things I am permitting you to ask about names. That is all, and don’t ask it anymore. One is the first one was about what name she used in the conviction. The other was about the doctor; anything else don’t use the name, don’t use it any more, and if you do I will grant a mistrial if you do it anymore, sustain it and disregard it, Ladies and Gentlemen of the Jury.”

It is appellant’s position that the court assumed that she had been convicted and so stated before the jury. We observe that no objection was taken to this ruling of the court. We further observe that all the evidence about the appellant’s prior conviction for DWI was either admitted without objection or by stipulation, the appellant’s counsel and the appellant, herself, agreeing to the stipulation.

There was no controversy whatsoever about this evidence or the prior conviction. We find no merit in appellant’s contention, and it is overruled.

We have carefully examined the other contentions, urged in appellant’s brief, reflected by the remaining informal bills of exception, and conclude that none of them reflect error. They are all overruled.

The judgment is affirmed.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    Jessie Paul PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 34886.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 2, 1963.

      Foreman & Walsh, Houston, for appellant.
    Jules Damiani, Jr., Dist. Atty., and Pete Urbani, Jr., Asst. Dist. Atty., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is a misdemeanor conviction in the Juvenile and County Court No. 2 of Galveston County for the offense of negligent homicide of the second degree; the punishment, confinement in jail for 18 months.

The state’s evidence reveals that while the appellant was driving an automobile upon a public street he failed to observe a stop sign at a right angle intersection of two streets and struck an automobile passing through said intersection on the other street, which resulted in the death of two persons riding in the other automobile. There was no stop sign on the other street.

Appellant and his companion testified that they were traveling on the street without the stop sign and that the other automobile was traveling on the street with the si op sign and failed to observe the stop sign. Appellant testified that he turned his car in an attempt to avoid the collision but the other automobile struck his car.

The jury .resolved the issues of fact against the appellant and it is concluded that the evidence is sufficient to support the conviction of the appellant as charged.

Appellant contends that this cause should be reversed on the ground that the official court reporter did not attend this trial and take full shorthand notes in accordance with the provisions of Art. 2324, Vernon’s Ann.Civ.St.

A narrative statement of the evidence adduced on the trial, certified by the trial judge, accompanies the record. The judge certifies in the narrative statement that no court reporter attended the trial of this case.

The court in which this cause was tried was created by a Special Act of the Legislature. Tex.Gen. and Sp.Laws, 57th Leg., Ch. 291, p. 623 (1961). Section 12 of said Act in part provides:

“The judge may also appoint a court reporter when he deems it necessary to record and preserve testimony, utilizing the services of the .regular district and county reporters when possible.”

In the absence of any showing that the court had appointed a court reporter, it is not necessary to appraise the contention presented by appellant. Further, there is no showing that a .request was made at any time to the trial court for a reporter in this case.

There are no formal bills of exception.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing complains of the absence of any order transferring the case from the district court in which the indictment was returned to the court where the case was tried.

Supplemental transcript has been filed in this Court which contains an order entered in the minutes of said district court transferring the case to the County Court of Galveston County, and an order transferring the case from that court to the court in which the case was tried.

Appellant’s motion for rehearing is overruled.


author: DICE, Commissioner. MORRISON, Judge.

text:
    George E. HANCOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 34804.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    Rehearing Denied Dec. 5, 1962.
    Second Rehearing Denied Jan. 16, 1963.

      Foster, Lewis, Langley & Onion, by James C. Onion, and Frank Y. Hill, Jr., San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, John Flinn, Dist. Atty., S inton, for the State.
   DICE, Commissioner.

Appellant was charged by indictment duly presented in and to the 36th Judicial District Court of McMullen County with the offense of unlawfully entering upon'the enclosed land of another and hunting with a firearm.

Trial was had in the county court of the county after transfer of the cause to that court by the district court, resulting in the conviction of appellant, with punishment assessed at a fine of $50.

The conviction is under the first count of the indictment, as drawn under the provisions of Sec. 1(a) of Art. 1377b, Vernon’s Ann.P.C.

In said count it was alleged that on or about the 1st day of November, 1961, in McMullen County, Texas, the appellant

“ * * * then and there unlawfully enter upon the enclosed land there situated of another, to-wit, land under the control, care and management of Don A. Norton, who then and there had the said land in his actual care, control and management, without the consent of the said Don A. Norton, and the said George E. Hancock did then and there hunt with a firearm * *

The state’s proof shows that on the date alleged the appellant was hunting deer from a stand on a ten-acre tract of land in McMullen County, which was owned by his cousin. The ten-acre tract was enclosed by a four wire fence and was within a 2,000-acre tract of land owned by the Naylor Ranch Co. The 2,000-acre tract, known as the “chain” pasture, was under lease to Naylor Morton, and under the care, control, and management of Don Norton, the ranch manager.

Norton testified that on the afternoon in question while he was riding in the 2,-000-acre pasture he heard a rifle shot and that he proceeded to where he could see appellant, with- a firearm, climbing out of his stand on the 10-acre tract; that he went to appellant and engaged him in conversation;' that after talking to him he left and as he was riding away he saw a dead buck deer .on the ground; that he. rode away and in six or seven minutes he saw the appellant walking around, without a rifle, in the 2,000-acre pasture; that he (Norton) returned, and appellant stated: T knew I hit him,’ ” and that he had wounded the deer on his tract. Norton testified that he then went to the deer, which was lying on the ground in the chain pasture 189 feet from the southeast corner of the 10-acre tract, and upon examination ascertained that it had been shot but one time, in the shoulder, and that its back was broken. He further stated that he found no evidence that the deer had come from the 10-acre tract, and expressed the opinion that the deer could not have moved from where it was shot. He further testified that he did not give appellant permission or consent to go upon the land and shoot a deer.

Sheriff Melvin Naylor testified that he examined the deer; that the bullet had gone through the back and had broken the backbone; and he expressed his opinion that it could not have moved after being shot.

Appellant, testifying in his own behalf, admitted shooting the deer but swore that he first shot the animal from his stand, when it was inside the 10-acre tract, and that after it jumped the fence he fired another shot from the stand, which did not hit its mark. Appellant swore that he did not carry his rifle into the big pasture but left it at his stand before crossing over the fence. He further testified, and was supported by the testimony of a fellow hunter, that the deer’s back was not broken by the shot and that it could have traveled after being shot.

Appellant insists that for various reasons the evidence is insufficient to support the conviction. It is first contended that the evidence fails to show that he entered upon the enclosed lands with a firearm. It is appellant’s contention that in the absence of such proof the state failed to prove the mode, manner, and means by which it was charged the offense was committed.

While the proof does not show that appellant physically entered the enclosed lands with a firearm, it is sufficient to warrant the conclusion that he shot the deer in the enclosed 2,000-acre pasture from his stand in the 10-acre tract. His act of shooting into the 2,000-acre pasture with his rifle and killing the deer clearly constituted an entry and trespass, and entry upon the enclosed lands of another, and hunting with a firearm.

The word “enter” is defined by Webster’s New International Dictionary, Second Edition (1960), as meaning:

“To go or come in, to a place or condition; to make or effect an entrance * * * To go in (upon lands) * * *. To come or go into; to pass into the interior of; to pass within the outer cover or shell of; penetrate; pierce *' * * to cause to go (into), or to be received (into) ; to put in; to insert; to cause to be admitted ⅜ * * tt

In the offense of burglary of a house, an entry may be committed by discharge of firearms into the house with intent to injure any person therein. Art. 1393, V.A.P.C.; Jones v. State, Tex.Cr.App., 342 S.W.2d 585.

It is next contended that the state failed to prove that the ranch managed by Norton on or about November 1, 1961, was located in McMullen County and that it was the land described in the indictment. The contention is further made that the evidence is insufficient because the state failed to prove by competent evidence that Naylor Morton was the lessee of the land.

The record reflects that the ranch manager, Norton, testified that he had the care, control, and management of the ranch located in the “northwest section of the county” and that the area where the deer was found shot was in McMullen County. This testimony located the land as being in Mc-Mullen County and was sufficient to identify it as the land described in the indictment.

It is appellant’s contention that because Naylor Morton testified he had the lands under lease but no lease was introduced in evidence, such evidence fails to prove that he was the lessee of the land by virtue of the provisions of Art. 1377b, Sec. 1(d), P. C., which provides that “Proof of ownership or lease of such enclosed lands shall be made as in trespass to try title suits.”

Although no lease to Naylor Morton was introduced, the evidence shows that he and ranch manager Norton had prior possession of the enclosed lands, which was sufficient to create the presumption in a trespass-to-try-title suit that they had title to the land and the legal right to possession thereof. See 41-A, Tex.Jur., Trespass to Try Title, Sec. 30, page 545. It is also pointed out that the right to possession of the land by Morton and his ranch manager, Norton, was in no way disputed by appellant.

Appellant’s last contention is that because the evidence shows he had the right to use the 10-acre tract and had the right of ingress and egress over the 2,000-acre tract of land he should have been prosecuted under Sec. 2(a) of Art. 1377b, which prohibits such a person from entering or attempting to enter upon the surrounding land owned by another, without consent of the owner, proprietor, lessee, or person in charge, and to hunt or attempt to hunt with firearms.

While Sec. 1(a) applies to a person hunting on enclosed lands of another and Sec. 2(a) is applicable to persons who hunt or attempt to hunt upon land which wholly or partially surrounds land which they claim the right to use, both sections of the statute make it unlawful for a person to enter upon the described lands of another without the consent of the owner, proprietor, lessee, or person in charge, and to “Hunt or attempt to hunt with firearms * * Clearly, the state could elect under which section of the statute and for which offense growing out of the same transaction it would prosecute the appellant. Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928, and Lewis v. State, Tex.Cr.App., 346 S.W.2d 608.

The evidence is sufficient to support appellant’s conviction under Sec. 1(a) of Art. 1377b, supra, of unlawfully entering upon the enclosed lands of another and hunting with a firearm.

The judgment is affirmed.

Opinion approved by the court.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant earnestly urges this Court to hold that a fatal variance exists between the allegation in the indictment that he “did then and there unlawfully enter upon the enclosed lands * * * and did then and there hunt with a firearm” and the proof that he did not physically enter but shot across said enclosed lands.

Reliance is had upon Tibbs v. State, Tex.Cr.App., 341 S.W.2d 932, and Fuller v. State, 120 Tex.Cr.R. 66, 48 S.W.2d 303. Reference should also be made to Fannin v. State, 168 Tex.Cr.R. 593, 331 S.W.2d 47.

In Tibbs (negligent homicide), the indictment alleged that the accused drove an automobile “into and against the said Gary Wilks,” and we held this was not supported by proof that the automobile in which Wilks was riding drove into accused’s automobile while it was standing still.

In Fuller (failure to stop and render aid), this Court held that where the statute provided two ways in which the offense might be committed proof that it was committed in a manner other than that charged in the indictment would constitute a variance.

In Fannin (aggravated assault with motor vehicle), we held that an information alleging that accused collided with Linda Hamilton could not be supported by proof that the automobile in which Linda Hamilton was riding ran into and struck the side of the automobile being driven by accused.

The above statement of the holdings, we have concluded, distinguishes them from the case at bar.

In our original opinion, we held that entry might be effected by shooting across the lands of another for the purpose o.f killing deer upon such land. With this conclusion, we remain in accord. This being so, the question before us here is not one of variance, but whether it was incumbent upon the State to have alleged the manner whereby entry was effected.

Since the offense was charged in the terms of the statute, it will be considered sufficient in the absence of a motion to quash, setting forth particularly that he was not informed from the same as to how he was alleged to have effected such an entry.

No such motion appears before us here.

Appellant’s motion for rehearing is overruled.


text:
    Algie SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 35147.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is conspiracy to commit a felony (Article 1622, V.A.P.C.) ; the punishment, two and a half years in the penitentiary.

The indictment alleged in the first count that on or about the 24th day of August, 1960, the appellant and Frank Brown, Charles King, Robert Swain, Alfred Swain, and Odell Pyles did unlawfully

“conspire, combine, confederate and agree and did enter into a positive agreement together and between themselves, to unlawfully and fraudulently take and steal checks and current money of the United States of over the value of fifty dollars, from various persons, whose name, identity and descriptions were then unknown *

Upon the granting of a severance, appellant was separately tried and convicted under the first count of the indictment.

At the trial, the state introduced in evidence a written statement made by appellant to Officer E. R. Williams on December 18, 1960, after having been duly warned.

In the statement appellant related that on August 24, 1960, the date alleged in the indictment, his friend Charlie King called him “to come over to his house that there was a deal on” and asked him if he “wanted to be in on it,” to which question appellant replied “yes” and that he would be over. Appellant thereafter went to King’s house and he and King then met his other co-indictees at a Weingarten’s store. After this meeting and after one of the group made a telephone call and came back to the table and said “Come on; let’s go,” they all got into King’s car and started driving around town. When they .reached Austin Street they had an accident with a truck belonging to the Warren Plumbing Company. After the accident, one of the party talked with the driver of the truck and obtained his signature to a paper stating that the accident was his (the truck driver’s) fault. The group immediately made claim to an insurance company and each was paid a certain amount for his alleged injury sustained in the accident. The appellant was paid $500.

After a meeting of almost the same group on September 13, 1960, they got together again the next day at Weingarten’s and co-defendant King told appellant “ * * we had a deal going on” and asked him if he wanted to go and appellant replied " ‘Yes.’ ” Appellant stated that they then got in King’s car and after driving around a short time he saw a “vegetable truck backing into 'a parking place” and that “Then all of.a sudden we hit it.” One of the group obtained the information as to what insurance company carried the insurance on the vegetable truck, and after contacting the insurance company they were each paid $200. Each of the group paid King one-third of the money obtained, because “he was the one that had made the deal up.”

Appellant, in the statement, related:

“What I mean by deal is that we would get together and go do some odd jobs and later have a wreck and collect on the insurance. I knew the accidents we were having were on purpose to collect the insurance.”

Appellant further stated that on October 11, 1960, after borrowing a car, almost the same group of persons were told by one of the co-defendants, Robert Swain: * * * we had a deal on,” and while, driving down. Milam Street they hit a red truck. One of the group “did all of the talking,” the police were called to make an investigation, and appellant went home. He was later picked up by Robert Swain and taken to the insurance company in order to collect on their claim.

To corroborate the confession, the state called various witnesses.

Daniel Carpenter, the driver of the Warren Plumbing Company truck, testified to his involvement in the collision on August 24, stating that after the accident and while excited he did sign a statement in which he admitted striking the King car and acknowledged that he was in the wrong but that, after time for reflection, he realized that he was in the .right.

Oscar Avera, claim superintendent for Commercial Union North British Group,, representing the insurance carrier for the-Warren Plumbing Company, testified that on August 20, 1960, the appellant came to-his office to make a claim arising out of the accident with the Warren company vehicle;, that appellant was accompanied by the five other men who were riding in the car with him; and that King gave him the handwritten note of the driver of the Warren truck. He further testified that appellant was paid $500 on his claim and the others were paid amounts ranging from $400 to' $900, each.

John R. Saur, insurance adjuster for the American Surety Insurance Company, testified that in connection with the accident, on September 14, with the vegetable truck appellant was paid on his claim $258 and the various other occupants of the automobile in collision with the truck were paid different amounts.

Willis T. McBride, employed as an insurance 'adjuster for the Hartford Insurance Group, testified that his company carried the liability insurance on Watson Bros, vehicles. Shortly after October 12, 1960, the appellant, with four or five others, presented to the witness’s company a claim arising out of an accident with one of the Watson Bros, trucks, on Milam Street. The insurance company did "not pay the claim made by appellant nor the claims made by the others. The witness took a statement from the appellant regarding the accident, but appellant would not sign it.

Testifying as a witness in his own behalf, appellant denied having entered into any conspiracy or agreement to steal any money or checks, and stated that the accidents in which he was involved were bona fide accidents and were not planned. In his testimony he repudiated his written confession, stating that he signed it because he was scared by reason of threats made by Officer Williams.

Appellant’s sole contention on appeal is that the evidence is insufficient to sustain the conviction. With such contention we agree.

There is no evidence, outside of appellant’s written confession, showing his guilt of the offense charged.

It is well settled that a confession, alone, is not sufficient to support a conviction. It must be corroborated. There must be proof that the offense was committed— that is, the corpus delicti must be proved. The confession may be used to aid in proving the corpus delicti but is not alone sufficient. Watson v. State, 154 Tex.Cr.R. 438, 227 SW.2d 559; Ellison v. State, 155 Tex.Cr.R. 336, 235 S.W.2d 157; Board v. State, Tex.Cr.App., 320 S.W.2d 668; and Marsh v. State, Tex.Cr.App., 342 S.W.2d 435.

The extrinsic evidence offered by the state in the instant case only shows that appellant was involved in the automobile collisions and was paid claims which he made to the insurance companies for injuries alleged to have been sustained. There was no proof, outside of appellant’s confession, that the claims for insurance were fraudulent.

While such evidence corroborates that portion of appellant’s written confession relating to the automobile collisions, it does not corroborate his admission in the confession of the conspiracy to commit the crime of theft.

The crime of conspiracy is complete when the unlawful agreement is entered into. Witt v. State, 146 Tex.Cr.R. 627, 177 S.W.2d 781.

The mere showing by extrinsic evidence that after the conspiracy was alleged to have been entered into appellant was involved in the automobile collisions and was paid insurance claims is not sufficient to corroborate his admission in the confession of an agreement and conspiracy entered into to steal checks and money.

The judgment is reversed and the cause is remanded.

Opinion approved by the court.