author: BELCHER, Commissioner.

text:
    William Everett REED, Appellant, v. The STATE of Texas, Appellee.
    No. 33987.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Don Wilson, Robert C. Benavides, Dallas, for appellant.
    Stanley C. Kirk, Dist. Atty., Stanley M. Vickers, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary with two prior convictions for offenses less than capital alleged for enhancement; the punishment, life.

The testimony of the pharmacist who closed the drug store about 9 P.M.; the officers who later discovered the forced-open front door of the building which led them to discover the appellant and his companion in the drug store with the cash register broken open, the narcotics drawer 'open, the appellant’s companion with socks on his hands and two bottles of narcotics in his pockets; the owner who testified that he had given no one his consent to break and enter the building or take any property therein; is sufficient to sustain the conviction for burglary.

Proof was offered of two prior convictions alleged for enhancement, and that the appellant was the same person so convicted.

The appellant did not testify or offer any evidence.

The sole contention presented for reversal is that the trial court erred, at the close of the evidence, by proceeding with the trial in the absence of the appellant.

At his trial, the appellant, who was on bail, entered a plea of not guilty and was present during the presentation of all the evidence. When the evidence closed, about 5 P.M. on March 13, 1961, the Judge announced to all parties, including appellant, that court would recess until 8 A.M., March 14, 1961, at which time the trial would resume.

When the court reconvened the next morning, all parties were present in court except the appellant. About two hours were spent trying to locate him, but to no avail. Following this, the bond of the appellant was forfeited. The court then submitted its charge to the jury, which was followed by the argument of counsel, and the jury returned its verdict of guilty in the absence of the appellant, and the judgment was entered.

Thereafter, the appellant was arrested on April 7, 1961, and appeared in open court to be sentenced on April 11, 1961. At that time, in response to the court’s inquiry why he had left during the trial of his case, the appellant stated that when the court recessed about 5 P.M. March 13, he “knew he had had it”, so he went to Dallas where he remained until his arrest. He further stated that his failure to be present at his trial when the court reconvened was voluntarily done; that he was not persuaded or advised to leave, or prevented from returning at such time. The court found in the judgment that the appellant voluntarily absented himself from said trial at the close of the evidence.

Article 11, Vernon’s Ann.C.C.P. provides that:

“The defendant in a Criminal prosecution for any offense, may waive any right secured him by Law except the right of a trial by a Jury in a felony case when he enters a plea of not guilty.”

Article 692, V.A.C.C.P. reads in part as follows:

“In felony cases the defendant must be present when the verdict is read unless his absence is wilful or voluntary.”

It is the prevailing rule where the offense is not capital, and the accused is on bail, that after the trial has begun in his presence and he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the' trial. On the contrary, as authorized by the above statutes, this operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. 16 Tex.Jur.2d 465, Sec. 293; Ex parte Cassas, 112 Tex.Cr.R. 100, 13 S.W.2d 869; Ballou v. State, 113 Tex.Cr.R. 493, 22 S.W.2d 666; Hadley v. State, 163 Tex.Cr.R. 571, 294 S.W.2d 717.

The record affirmatively shows that the appellant voluntarily absented himself from the trial after announcing ready and being present during the presentation of all of the evidence.

For reversal, the appellant relies on Article 580, V.A.C.C.P., and the decisions based on its provisions. It is evident from the facts of this case that it is not here applicable.

The judgment is affirmed.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Charles Robert CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34298.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.

      Charles Robert Chapman, pro se.
    W. G. Walley, Jr., Acting Crim. Dist. Atty., W. T. Wood, Jr., Asst. Crim. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from a conviction, upon a plea of guilty before the court, for burglary of a house owned by Loyce Powell without her consent, with the intent to commit theft. Appellant was assessed a term of 5 years.

The statutes relating to the waiver of a jury in a non-capital felony case provide that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant, and that in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same. Art. 12, Vernon’s Ann.C.C.P.

There is evidence that Lois Powell worked for E. E. Biscamp as his secretary and that Mr. Biscamp owned the building in which his office was located, but there is no evidence from which the court could find that Loyce Powell or Lois Powell exercised any custody or control over the building or the office.

“The conviction will be reversed where the undisputed proof shows that the premises did not belong to and were not in possession of the person or parties named in the indictment as owner.” 4 Branch’s Ann.P.C.2d, Sec. 2515, p. 836.

The judgment is reversed and the cause remanded.


text:
    Charles Robert CHAPMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34299.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Charles Robert Chapman, pro se.
    W. G. Walley, Jr., Acting Crim. Dist. Atty., W. T. Wood, Jr., Asst. Crim. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from a conviction for burglary with punishment assessed at 5 years. The allegations and proof as to the ownership of the building are the same as in Chapman v. State, No. 34,298, Tex.Cr.App., 353 S.W.2d 851, this day decided, a burglary on a different date being alleged.

Our disposition of the companion case requires that this conviction also be set aside.

The judgment is reversed and the cause remanded.


author: MORRISON, Judge.

text:
    Frank FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 33941.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.

      William E. Davenport, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault to murder; the punishment, 8 years.

The injured party Garza testified that, while he was standing at the bar in the Copa Caban on the night in question engaged in conversation with another patron, appellant, who was seated at one of the tables, without any warning or provocation, shot him with a pistol. He was carried to the hospital where he was treated for a few days. Trini Lopez, the owner of the bar, testified that he heard a loud noise, saw Garza fall with a “lot of blood on him,” and then saw his bouncer Mata and another man disarm appellant at the table. Mata testified that he heard a noise and then sawr appellant with a pistol in his hand, that he disarmed appellant and later the man who assisted him turned the pistol over to Officer Williams. Williams identified the .25 caliber pistol introduced in evidence as being the one turned over to him by Mata and another.

Appellant, testifying in his own behalf, stated that he shot Garza because he had a knife in his hand “and I thought he was going to cut me” and because he believed his life and that of his brother were in danger. He testified about prior troubles with some of Garza’s kinsmen. Appellant’s brother and another witness corroborated his testimony, but no witness testified to any overt act on the part of Garza.

In rebuttal, the State called witnesses who testified that appellant’s reputation for being a peaceable and law abiding citizen was bad.

The careful trial judge submitted the issue of self-defense and defense of another; the jury resolved what conflict there was in the evidence against appellant, and we find it sufficient to support the conviction.

In his brief and in argument, appellant complains of the overruling of his motion for new trial which alleged that the prosecutor committed error during the course of his argument and that new evidence had been discovered. We find no statement of facts on the hearing on the motion and no formal bills of exception, and the argument is not preserved by informal bills of exception. An exhibit attached to the motion for new trial does not prove itself and cannot be substituted for a bill of exception.

Nothing is presented for review. Young v. State, 156 Tex.Cr.R. 454, 243 S.W.2d 587; Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757; and Spigner v. State, Tex.Cr.App., 335 S.W.2d 605.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Douglas W. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 34165.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    , No’ attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H.. Robertson, Jr., Theodore P. Busch, Asst. Dist. Atty., Houston, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, enhanced by two prior convictions for felonies less than capital life.

The state’s evidence shows that am automobile of the value of $250, belonging' to E. C. Rust, was parked in front of his place of business in Harris County between 7 and 9:30 o’clock P. M. Mr. Rust discovered that it was missing and notified the-police.

Officer Means, of the Pasadena Police Department, received a description of the automobile and, some 30 minutes later, found it parkéd in Pasadena.

Upon investigation, Officer Means found: the appellant lying down in the seat on the passenger side of the car and one Shaver-seated on the driver’s side. Both appellant and Shaver were wearing coveralls and' gloves. A loaded pistol was found on the floor on the passenger side and appellant had a switch blade knife with a blade 4-inches long on his person. The ignition .switch on the automobile had been wired' around, making it unnecessary to use a key.

Mr. Rust testified that the key was not in-the automobile and that he did not give-anyone his consent to take the car.

The prior convictions were proved by the prison records and comparison of fingerprints in the manner which has been held sufficient, and the allegation that the second; prior conviction was for an offense committed after the first, conviction had become final was proved by testimony showing-the date of the said offense.

Appellant offered no evidence and no brief has been filed in his behalf.

The evidence is found sufficient to sustain the conviction. Alexander v. State, Tex.Cr.App., 340 S.W.2d 493.

The indictment appears to be sufficient and the trial court did not err in overruling appellant’s motion to quash.

The court’s ruling on appellant’s objections to the charge is not before us for review, exception above the judge’s signature being required. Kliesing v. State, 165 Tex.Cr.R. 585, 309 S.W.2d 445. We have examined the charge, however, in light of the objections and find no error which, had exception been properly reserved, would warrant reversal.

The judgment is affirmed.


author: DICE, Commissioner. MORRISON, Judge.

text:
    James E. BUSH, Appellant, v. The STATE of Texas, Appellee.
    No. 33890.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Rehearing Denied Feb. 14, 1962.

      Billy J. Moore, Ennis, for appellant.
    Bruce Allen, County Attorney, Waxa-hachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for felony theft with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life imprisonment, as provided by Art. 63, Vernon’s Ann.P.C.

The indictment was returned by the grand jury on February 7, 1961 and charged theft of money of the value of Five Hundred Dollars from one L. C. Hackler.

After return of the indictment, appellant filed in the cause, on April 21, 1961, two motions in which he alleged that he had been adjudged a lunatic on February 14, 1924, in the County Court of Navarro County and that his attorney had reason to believe that appellant was presently insane and was insane at the time of the commission of the offense. In one motion, appellant requested the court to send him to a mental institution for diagnosis and observation before being placed on trial and in the other motion, appellant requested the court to, “ * * * appoint and pay for a competent independent psychiatrist’s services so that the Defendant can adequately prepare his defense * * * and for suspension of the proceedings for a period of time sufficient to enable the psychiatrist to observe, diagnose, and evaluate the Defendant’s mental condition * * ⅜»

The two motions were by the court overruled.

On April 24, 1961, appellant filed in the cause a motion for a preliminary insanity hearing in which he alleged that he was incompetent at the time to make a rational defense and requested the court to impanel a jury to try the issue of his mental competency at such time and at the time of the alleged commission of the offense-charged against him.

In response to the motion, a jury was. duly selected and impaneled by the court on April 24, 1961, to try the issue of appellant’s insanity.

After a hearing, the jury returned into-court their verdict finding appellant sane at the time of the hearing and sane on October 21, 1960, the date the offense was alleged to have been committed.

On April 25, 1961, the case against appellant for the offense charged in the indictment was called for trial.

Appellant entered a plea of “Not Guilty”' to the indictment by reason of insanity.

At the trial it was shown by the testimony of the injured party that on the date alleged in the indictment a collection of' old coins, of the value of $600, were stolen, from his home. Appellant was arrested the-following day and some old coins were-found in his pickup. Appellant orally confessed to the officers that he had stolen the-coins from the injured party and accompanied them to a place where he stated he-had abandoned a metal box which contained the coins and had burned some of' the papers which were in the box. At such place the officers found a metal box which, the injured party identified as the box im which he kept the collection of coins. Certain coins and papers were also found by the officers. The coins were identified by the injured party and his wife as similar to the ones stolen from their home and the-wife identified certain writing on coin, wrappers as being her writing. The coins, recovered by the officers, which were in denominations of pennies, nickels, dimes, and quarters, were shown to have a value of over $50.

Proof was made by the State of the two-prior convictions alleged in the indictment and evidence was introduced showing that; appellant was the person so convicted.

Appellant offered in evidence, on the is•sue of insanity, a certified copy of a judgment entered in Cause No. 3,387 in the County Court of Navarro County, on February 14, 1924, wherein appellant was adjudged to be a lunatic in a lunacy proceeding.

The State called lay witnesses who expressed their opinion that appellant was of sound mind, both at the time the offense was alleged to have been committed and at the time of trial. Dr. John Compton, a physician and County Health Officer of Ellis County, upon being called as a witness by the State, testified that he had examined appellant on two occasions and expressed his opinion that appellant was a person of sound mind at the time of trial and on the date the offense was alleged to have been committed.

The court, in submitting the issue of appellant’s guilt to the jury, charged on the law pertaining to appellant’s defense of insanity and required the jury to find whether appellant was sane or insane, both at the time of trial and at the commission of the alleged offense.

The jury by their verdict found appellant guilty of the primary offense and that he had been previously convicted of the two alleged felony offenses and on the issue of insanity found appellant sane, both at the time of trial and on the date the offense was alleged to have been committed.

The evidence is sufficient to support the jury’s verdict.

We shall discuss the contentions presented by appellant in his brief and in oral argument.

He first contends that the charge given by the court, both at the preliminary trial and on the main trial, with respect to the definition of insanity, as applicable to the time of trial, was erroneous because the court’s definition was based upon the “right and wrong” test of insanity rather than -whether appellant knew the nature and consequences of his acts and was able to advise and assist his counsel in preparing a rational defense.

We need not pass upon the sufficiency of the court’s charge given at the preliminary trial as no appeal lies from such trial. Appellant may not on this appeal complain of alleged procedural errors at the preliminary trial. Pena v. State, Tex.Cr.App., 320 S.W.2d 355.

The court in the instant trial instructed the jury in connection with the charge on insanity as follows:

“In order for a person to be insane under the law, his mind must be so affected or mentally diseased that his reason is dethroned to the extent that he does not know the nature, quality, or consequences of his act at the time, that is, he does not know the difference between right and wrong.”

The “right and wrong” test of insanity, used by the court in the definition, is the legal test of insanity in this State. Simpson v. State, 163 Tex.Cr.R. 385, 291 S.W.2d 341 and Freeman v. State, 166 Tex.Cr.R. 626, 317 S.W.2d 726.

Art. 932b, Vernon’s Ann.C.C.P., provides in part as follows:

“Section 1. In any case where the question of the insanity of a defendant is raised and the issue is tried alone before the main charge or is tried in connection with the main charge, the jury shall state in their verdict whether the defendant was sane or insane at the time the offense is alleged to have been committed and whether the defendant is sane or insane at the time of the trial.”

This statute clearly requires a finding by the jury on both the issue of present insanity of the accused and insanity at the time of the alleged offense, where such issues are raised.

In the early case of Guagando v. State, 41 Tex. 626, it was held that the question to be determined at a preliminary insanity hearing is whether the accused is mentally competent to make a rational defense. Where, as in this case, an accused has been accorded a preliminary insanity hearing on the day before the main trial, the court would not be required to grant him another such hearing on the day of the main trial. Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661.

We hold that the learned trial judge correctly submitted to the jury the issue of appellant’s insanity, both at the time of commission of the offense and at the time of trial, upon the legal test of insanity recognized in this State, which is the ability to know the nature and consequences of one’s acts and the difference between right and wrong.

Appellant next urges as error the court’s action in refusing to provide appellant with a competent independent psychiatrist, or in the alternative to send appellant to a mental hospital for observation.

The Constitution of Texas, Art. 1, Sec. 15-a, Vernon’s Ann.St., relates to the commitment of one found to be insane. It does not relate to insanity as a bar to prosecution or as a defense in a criminal case. A defendant in a criminal case may successfully plead insanity as a bar to prosecution or punishment, or as a defense, though the evidence may not be such as would authorize his commitment.

We find no provision in the constitution or statutes which requires a court to appoint a psychiatrist for one charged with a crime or order that he be sent to a hospital for observation. In Ellzey v. State, 158 Tex.Cr.R. 604, 259 S.W.2d 211, this Court held that the law of this State does not require a trial court to send a person charged with an offense, prior to an adjudication of insanity, to an institution for diagnosis or observation. The prior adjudication of insanity of appellant, in the lunacy proceeding, would not require such an order. We find no error in the court’s refusal.

Complaint is made to the court’s action in refusing appellant’s request for an extension of time in which to file an amended motion for new trial based upon newly -discovered evidence. While the complaint is not before us by a proper bill of exception, we observe that appellant’s request was not made until after the term of court had expired at which his original motion for new trial was overruled and notice of appeal was given. The court was without jurisdiction after expiration of the term to grant appellant’s request for extension of time. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133.

The remaining complaint relates to certain other alleged errors in the court’s charge given at the preliminary insanity hearing which appellant cannot urge on this appeal. Pena v. State, supra.

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

Opinion approved by the Court.

MORRISON, Judge.

In a highly professional brief and oral argument, appellant urges that we, were in error in our original holding that he was not under the Constitution of the United States entitled to the appointment of a psychiatrist, to be compensated by the State for his examination of appellant and for his time while testifying, in the event he concluded that appellant was a person of unsound mind. This Court does not turn a deaf ear to appellant’s claims of his constitutional rights, as will be seen from our opinion in which we granted relief to him in Ex parte Bush, 166 Tex.Cr.R. 259, 313 S.W.2d 287. But we are not inclined to extend the holding of the Supreme Court -of the United States in United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549, when that Court said, “We cannot say that the State has that duty by constitutional mandate.”

Appellant next contends that we erred in our disposition of his complaint as to' the court’s charge on the question of insanity. What we attempted to say was that the question of appellant’s sanity, and thus his ability to make a rational defense, was decided adversely to him on April 24 and that it became unnecessary to re-adjudicate that question on April 25.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


text:
    Donald Wayne BURNS, Appellant, v. The STATE of Texas, Appellee.
    No. 34118.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    Donald Wayne Burns, appellant, pro se.
    Henry Wade, Dist. Atty., Dallas, William F. Tucker, Jack Hampton and Phil Burle-son, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for robbery with firearms; the punishment, fifty years.

This is a companion case to that of Blaylock v. State, Tex.Cr.App., 347 S.W.2d 718.

The evidence of the state in this case is substantially the same as that shown in the decision of Blaylock’s case, supra. L. M. Box, the owner of the store, and his wife, while testifying in the instant case, identified the appellant as the person who pointed the pistol toward Box as he and Blaylock took about $500 in money from Box’s billfold and the cash register.

No objection was made at the time of the admission in evidence of a written statement made by the appellant. In the statement, appellant said that he “whipped out” his .32 revolver and told the man that all they wanted was the money which he and Blaylock then took from Box’s billfold and the cash register.

The appellant did not testify or offer any evidence.

The appellant complains of the testimony of Mrs. Box during her cross-examination as to the identity of the two men that came into the store.

When Mrs. Box was being questioned about her observation of the men in the lineup, she was asked by appellant’s counsel if the police wanted to make sure she could identify the two men. She replied that she did not think so as she “had seen one of them twice that robbed us twice”. Following her reply, appellant’s counsel said that it was not responsive and moved for a mistrial, which was overruled. Then, at appellant’s request, the court instructed the jury to disregard the answer because it was not responsive to the question. No error is shown.

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

Opinion approved by the Court.


text:
    Donald Wayne BURNS, Appellant, v. The STATE of Texas, Appellee.
    No. 34117.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    Donald Wayne Burns, appellant, pro se.
    Henry Wade, Criminal Dist. Atty., William F. Tucker, Jack Hampton, Phil Burle-son, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State,
   BELCHER, Commissioner.

The conviction is for robbery with firearms ; the punishment, fifty years.

Grace Box testified that on October 14, while she was alone in the liquor store which she and her husband operated, the appellant, whom she identified while testifying, came in about 1:30 P.M. She showed him various merchandise, but he said the prices were too high, and when another person came in the appellant left saying he would return. As the second customer left, the appellant returned to make a purchase. When she started to place the merchandise in a sack, the appellant pointed a pistol toward her, saying for her to put all the money in the sack instead of the merchandise. She put approximately $1650 in money in the sack against her will and without her consent, because she was in fear of bodily injury and her life. Then appellant ordered her into a room in the back. Through a glass window in the door of the back room, she observed the appellant return to the front of the store where she “got a good look at him” as he hesitated for a brief time, walked to the center of the street, and then ran. She immediately notified the police of the robbery.

On October 30, the appellant was apprehended by the officers in Houston while carrying a loaded .32 revolver in the center of his back underneath his shirt and belt. Shortly thereafter he was returned to Dallas. The .32 revolver was introduced in evidence on the trial.

The state introduced in evidence a written statement signed by the appellant on November 1, 1960, and it reads in part as follows:

“My name is Donald Wayne Burns. * * * On October 14th of this year I went to a gun shop on South Ervay Street and bought a .32 revolver. I paid $25.00 for this gun, then rode the Ervay bus to South Dallas, got off on Colonial and walked over to S. Lamar Street near Hatcher, I had planned to rob one of the liquor stores at this location. I used to live in this part of town and knew the area pretty good and thought I could get away easier. When I got there I saw a woman in Pat’s Liquor Store by herself, so I decided to rob it. I went in and there was a colored man in the store. I left and came back and he was still there. I think he bought a case of beer. After he left I told the woman to give me a fifth of Ten High. When she got the whiskey I pulled the gun on her and told her to put the money in the sack and forget about the whiskey. She put the money in the sack, then I locked her in the back room and left, walked over and caught the bus and rode back to town. I got about $1600.00 out of this robbery.”

The appellant did not testify but recalled the state’s witness Grace Box who testified that shortly after the robbery she “picked out a man” in a police line-up, and that he was not the appellant. On further examination by the state, she identified the appellant as the person who robbed her. She also testified that the gun introduced in evidence was “exactly like it” — the one used by appellant during the robbery.

Appellant insists that his arrest was illegal, and the search of his person resulting in the finding of the revolver was invalid, and the introduction of the revolver in evidence was error.

No objection was made at the time the evidence was introduced showing the search and finding of the revolver on appellant’s person on the ground that it was an unlawful search. No error is presented. Haykel v. State, 158 Tex.Cr.R. 359, 255 S.W.2d 1014; Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356.

Appellant complains of the introduction of his written statement in evidence. He objected thereto on the grounds that he did not read it, and that it was signed under duress.

There is no evidence to support his objection. The testimony of Officer Lea-velle shows that he gave the appellant the statutory warning before the appellant made the written statement to him, and that the appellant read the statement and then signed it. Officer Leavelle denied making any promises or threats to the appellant during the making of the statement. No error appears in the admission of the written statement in evidence.

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

Opinion approved by the Court.


text:
    Cleveland SKATES, Appellant, v. The STATE of Texas, Appellee.
    No. 34028.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    M. D. Emerson, Paris, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for misdemeanor theft by false pretext; the punishment, five days in jail and a fine of $100. ■

About 1 A. M., the appellant, a city police lieutenant, and Officer Kemp stopped and searched an automobile in which Elton Crabtree, Ralph Reese, Bobby Collier, David Smith and Doyle Cameron were riding. Some of them had been drinking beer. The officers found a case and a six-pack of beer in the boy’s car which they took and placed in their car. Cameron and Collier, while testifying, identified the appellant as one of the two officers who stopped and searched their car. The testimony shows that “they” (referring to the officers) first said that Ralph Reese and Elton Crabtree were to be fined $17 each. When this sum could not be raised, “they” said “they” would let them go for $15 each. Crabtree, the alleged injured party, testified that he knew the money was for a fine which he had to pay, gave his billfold containing $20 to his companion Doyle who then and there paid one of the officers his fine of $15, receiving $5 back; and, that this whole transaction occurred on a public street where the officers had stopped them. Then the officers followed them to the city limits as they left going to their homes outside the city.

Officer Kemp testified that he was in the patrol car with the appellant when they stopped the automobile in which the four young men were riding; that some of them had been drinking and had beer in the car, and he got no part of it; that no arrests were made, that he saw no money change hands, and that they followed the car as these persons left town to near the city limits. Then the appellant gave him $15 which appellant indicated was part of the fine, and that he later threw the money and the beer under a culvert.

The chief of police testified that he was the custodian of all of the reports of arrest by the city officers, the money paid for fines and what the fines are paid for; and that such records did not show that Elton Crab-tree and Ralph Reese paid any fines.

Testifying in his own behalf, the appellant denied his presence or participation in the occurrence as related by the state witnesses Crabtree, Collier, Cameron, Smith and Officer Kemp. According to his testimony, he was at home during this period of time. He called several witnesses who corroborated his testimony.

Appellant insists that error was committed during the cross-examination of the state’s witness Cameron as to the identity of the appellant. The basis of this complaint is that Cameron volunteered a non-responsive statement of an occurrence at a hearing before the Civil Service Commission. The statement complained of was that “they brought a picture and I pointed the picture out. They brought a picture in there”. To which statement there was no objection, or motion to strike or a motion for a mistrial. On re-direct examination, the attorney for the state said to Cameron, “you referred to something about a picture of Lt. Skates (appellant)”. To which appellant objected on the ground that it was an attempt to bolster the witness and was prejudicial. Although the objection was overruled, the witness never gave any testimony pertaining to the picture. The nature of the statement or the question on redirect examination does not show error.

He further insists that the court erred in permitting the state, in rebuttal, to recall the witness Cameron and prove by him that the appellant was one of the officers “down there that night”, over his objection that it was an attempt to bolster its witness and was prejudicial. From the record, it is concluded that the trial judge did not abuse his discretion in permitting the state to recall and make the proof complained of by the witness Cameron. Art. 643, Vernon’s Ann.C.C.P.; 42 Tex.Juris. 100, Sec. 73; 44 Tex.Juris. 1184, Sec. 171.

Appellant complains that the court’s charge instructed the jury: “Among other things that if the defendant obtained possession of the money by representing to Elton Crabtree at the time that he, the said Elton Crabtree, was assessed a fine in the 'sum of $15, and that such money would be applied to the payment of such fine * * He objected to the instruction on the ground that there was no evidence authorizing the submission of this issue.

The single count indictment was in the form ordinarily used for charging felony theft. The court in submitting the case as one of theft by false pretext, among other findings, required the jury to find the facts as set out in appellant’s objections shown above before they could find him guilty. The evidence was sufficient to authorize the submission of such issue to the jury. In this objection, there appears no error.

The appellant further objected to the court’s charge on accomplice testimony “for the reason that the same does not require that the corroborating evidence tend to connect the defendant with the commission of the offense charged and not merely with the offense”.

An examination of the court’s charge on accomplice testimony shows that it is substantially the same as the charge set out in 2 Branch’s Ann.P.C.2d 44, Sec. 747(1). Authorities are cited in support of this charge, hence no error is shown. It is observed that excluding the testimony of the accomplice, the evidence is sufficient to sustain the conviction.

The appellant also objects to the part of the court’s charge saying that “the said Elton Crabtree, or other person holding the same for him, parted with the possession of such money as a result of and in reliance on such representation, if any, of the said Cleveland Skates”. He urges that such a charge would allow the jury to find the appellant guilty of taking money from the injured party upon a finding that the “other person” paid the money as a result of the representations made to the “other person”, and his reliance thereon.

The evidence shows that the “other person” was present and merely aiding the injured party in paying his fine. In considering the charge as a whole, it is clear that the reliance mentioned did not apply to the “other party”, and that his connection according to the evidence, could not be construed as appellant insists. Hence, no reversible error is presented. Art. 666, V.A. C.C.P.

In his brief, appellant insists that if the evidence shows the commission of any offense it is not theft, but that of misapplication of city funds, a failure to report collections, bribery, or failure to arrest an offender, hence this conviction cannot stand.

There being evidence sufficient to support a conviction for the offense charged in the indictment, we need not consider whether the evidence was such as would also sustain a conviction for some other offense.

The evidence is sufficient to support the jury’s finding, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Herbert Lemuel BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34058.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.

      Joe McNicholas and Hugh Snodgrass, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., James K. Allen, First Asst. Dist. Atty., Ben Ellis, Paul French, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery with a firearm; the punishment, death.

The State’s evidence is undisputed that appellant came into the drive-in grocery store where Ellis Dodson, the complaining witness, was working, on September 4, 1960; that the store belonged to Dodson’s son; that appellant ordered a cold drink; that at this time there were other persons in the store and the other persons left and appellant said, “Give me another of the same”; that Dodson went to the icebox or refrigerator to get the cold drink and when he turned around he saw appellant standing by him pointing a gun at him; that while pointing the gun at him appellant told Dodson to give him his purse; that at this time appellant’s gun was pointed at Dodson’s body; that Dodson was in fear of losing his life or of suffering serious injury at the hand of the appellant; that Dodson gave appellant his personal money, about $146.00, out of his purse and appellant put the money in his pocket; that appellant said, “Let’s go to the cash register”; that when Dodson got to the cash register appellant said, “Open it up”; that appellant said, “Give me the money,” which was approximately $200.00, and during this time Dodson had both of his hands up in the air and appellant pulled the trigger on the gun; that the gun misfired and that appellant pulled the trigger again and the gun fired this time, the bullet hitting Dodson in the abdomen; that Dodson knocked the gun out of appellant’s hand, to the floor, and appellant grabbed Dodson and they scuffled and fell on the floor; that appellant got a hammer and knocked Dodson in the head with it; that Dodson knocked the hammer out of appellant’s hand; that during the scuffle Dodson got his gun from the shelf by the cash register and tried to shoot appellant but appellant got his gun about the same time; that appellant shot Dodson again, this time in the finger, breaking the bone all to pieces; that appellant next shot Dodson in the chest while they were still struggling; that Dodson tried to shoot appellant but couldn’t pull the trigger of the gun because his finger was broken; that appellant then shot Dodson again in the stomach and more than one time; that appellant took the gun from Dodson; that Dodson went outside the store and appellant followed him out and shot Dodson with his own gun, the number of times unknown to Dodson, and that appellant then ran off.

Dodson further testified that before being shot he had done everything that appellant had ordered and directed; that Dodson had not made any move whatsoever to resist appellant; that during the scuffle Dodson bit appellant on the side of the neck and brought blood; that several people came up after appellant had run off; that an ambulance took Dodson to Baylor Hospital where he stayed a total of 42 days; that Dodson is still under a doctor’s care; that Dodson saw appellant two and one-half months later at a line-up at City Hall.

J. D. Goodson, a mechanic, testifying for the State, stated that he went in a store on Colonial and saw appellant and Dodson tussling over a gun; that he ran out of the store; that Dodson came out of the store and said, “Somebody help me”; that appellant ran out of the store with the gun and shot Dodson three times, while standing about eight feet from him; that Dodson went to the ground; that appellant threw the gun down and ran; that Goodson called the police.

Jerry Don Byrom, City of Dallas police officer, testifying for the State, stated that he got a radio message to go to 4919 Colonial ; that he saw Dodson on the floor; that he called an ambulance; that Dodson gave him a description of the person who had robbed him; that he recovered two guns at or near the scene.

Robert E. Dugger, City of Dallas police officer, said that he saw Dodson on September 4, 1960, at 4919 Colonial and that he found a gun outside the building on the sidewalk.

Roosevelt Eubanks, testifying for the State, related that he knows appellant; that appellant was living with him on September 4, 1960; that he last saw appellant on that date between 9:00 and 9:15; that about twenty minutes later police came and he gave them permission to search his house.

State’s witness B. L. Senkel, testifying for the State, stated that he was a detective in homicide and robbery, City of Dallas Police Department; that he saw a .22 caliber gun which had five empty cartridges and one loaded cartridge in the cylinder; that the loaded cartridge had a firing pin mark on it; that there were two loaded cartridges and four empty cartridges in the other gun; that he went to where appellant was staying with Eubanks; that he first saw appellant on January 16, 1961, in Portland, Oregon, in jail where appellant was booked under the name of Ricky Crestón; that he returned appellant to Dallas.

The State adduced testimony from Dr. Ross L. Curtis, Jr., to the effect that he was a licensed and qualified physician with a specialty in general surgery; that he saw Dodson on September 4, 1960, in the emergency room at Baylor Hospital; that Dodson was “considered to be very critical; even almost to the point of death”; that Dodson was suffering from gun shot wounds; that Dodson remained in very critical condition for about one week and that Dodson is still under his care.

City of Dallas police officer E. R. Beck, as a State’s witness, testified that he went to the Eubanks residence where appellant was living and found appellant’s pants and shirt under the bed in his room and that the shirt had blood on the left side by the collar.

The appellant did not testify in his own behalf. The only testimony adduced by appellant was from his mother, Lillie Mae Dunson, and his aunt, Mattie Lee Nelson, in support of his defense of insanity. The mother stated that appellant was 19 years of age, born on June 15, 1941; that appellant was not of sound mind, that he got hit on the head while in high school and that he had been acting strangely ever since in that he would burst out in laughter and sit in the middle of the floor and play with toys and that his head was hurting him a lot. The aunt stated that appellant was not normal, that he was of unsound mind, and that he played with toys like he was a two-year old child.

The careful and able trial judge fully submitted appropriate issues of insanity and all other issues raised by the evidence. No exceptions or objections were taken to the court’s charge. The jury found appellant sane on both issues of insanity and found him guilty as charged in the indictment and assessed his punishment at death. We find the evidence amply sufficient to sustain the jury’s verdict.

By brief and oral argument, appellant’s counsel urges a reversal of this cause on what he terms “equitable grounds.” Appellant contends that since his acts did not result in death, and because of his age, we should reverse the case because the punishment is excessive. The punishment assessed is within the limits prescribed by statute. In Mitchell v. State, 124 Tex.Cr.R. 598, 63 S.W.2d 1026, in affirming a robbery by firearms case, this Court said:

“The robbery was a bold one. The jury heard all the testimony, and have assumed responsibility for a death penalty.”

Under the facts in this case, we do not find the punishment too severe nor excessive. We find no basis to disturb the punishment assessed by the jury.

Appellant complains that the indictment is defective in not charging him with using either “a” gun or “two” guns. We find the indictment to be in the usual form, which has been approved many times. It charges appellant with committing the robbery by exhibiting “a firearm, to-wit: gun.” While the evidence may show that appellant emptied his own gun on Dodson before using Dodson’s gun, it does not cause a variance. Appellant, being charged with robbery by use of and exhibiting a firearm, did just that. The taking of the money, the robbery, was completed before the second firearm or gun came into being in the cause. We find the charging of exhibiting “a firearm, to-wit: gun” proper. Appellant’s contention is overruled and is without merit.

Finding no error, the judgment is affirmed.


text:
    Clarence Elmo KING, Appellant, v. The STATE of Texas, Appellee.
    No. 34223.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1962.
    Guy H. McNeely, Wichita Falls, for appellant.
    Leon B. Douglas, State’s Atty., of Austin, for the State.
   BELCHER, Commissioner.

The appellant stands convicted of operating a motor vehicle while his operator’s license was suspended; the punishment, four months in jail and a fine of $400.

The evidence is sufficient to show that the appellant was operating an automobile upon a public highway on May 19, 1961. In making its proof that appellant’s operators license was suspended on such date, the state relies alone on a certificate of the Custodian of the Driver and Vehicle Division of the Texas Department of Public Safety, which was introduced in evidence.

The certificate reciting suspension of License No. 2249173 in 1947, 1948, and 1953 does not appear to be a record of the Texas Department of Public Safety or a certified copy thereof, nor do such suspensions appear to be relevant or material to the charge of operating a motor vehicle on May 19, 1961, hence should not have been admitted in evidence.

Only three types of licenses are authorized under Art. 6687b, Vernon’s Ann.Civ. St. These are “operators”, “commercial operators”, and “chauffeurs”, and they are specially defined in the act.

The certificate shows that the appellant was issued an original Texas Operator’s License No. 2249173 on November 20, 1942. The certificate further shows that on September 16, 1947, appellant’s Texas Commercial Operator License No. 2249173 was suspended. The same type and numbered license of appellant was subsequently suspended on June 18, 1948, and again on April 25, 1953. It also shows that “The permanent driver’s license #2249173 has been removed from the record of Clarence Elmo King because of Non-renewal activity”. The date of the removal of the license is not shown. It is not shown what type of license No. 2249173 was when it was removed from appellant’s driving record or whether it was cancelled on the issuance of appellant’s commercial operator’s license, which was later suspended. There is no evidence showing that the appellant had a valid operator’s license on May 19, 1961, or if he did that it was suspended.

For the reasons pointed out, the evidence is insufficient to show that appellant’s operators license was suspended as alleged, and it does not support the conviction.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: STEPHENSON, Justice.

text:
    M. L. BAGLEY, Appellant, v. M. K. HIGGINBOTHAM, Appellee.
    No. 6511.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1962.
    Rehearing Denied Feb. 7, 1962.
    E. E. Davis, Dayton, R. E. Biggs, Liberty, for appellant.
    John T. Buckley, Cleveland, for appellee.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court denying a mandatory injunction. In a former suit, appellant recovered a judgment against appellee for the title and possession of a strip of land upon which a house was situated. While that case was on appeal, appellee moved the house from the land. The judgment was affirmed by the Court of Civil Appeals, 346 S.W.2d 142 and writ of error denied by the Supreme Court. The appellant then filed this suit as a separate action, to compel appellee to move the house back upon the land and deliver possession to appellant. This relief was denied by the trial court.

This was not a case in which an injunction was sought to preserve the status quo. The removal of the house had already been completed before this action was filed. Appellant alleged in the application for the injunction that he had no other adequate remedy at law. However, no evidence was offered to show the insolvency of appellee, nor to show the appellant would suffer irreparable damage if the injunction was denied. This case is controlled by the rule of law as set forth in the case, Humble Oil & Refining Co. v. Luckel, Tex.Civ.App., 154 S.W.2d 155, as follows:

“The general rule is ‘that an injunction will not be granted when the person seeking it has a plain and adequate legal remedy as efficient to the ends of justice as the remedy in equity.’ Hill v. Brown, Tex.Com.App., 237 S.W. 252, 253; First National Bank in Orange v. Coyle, Tex.Civ.App., 95 S.W.2d 1337. * * * Appellees’ action for damages on this count, * ⅜ * had matured before this suit was instituted, for which they had an adequate remedy at law. * * * Appel-lees made no allegation that appellants were insolvent; in fact, the solvency of the Humble Oil and Refinery Company is a matter of such general information that it falls within the judicial knowledge of the court.”

Appellant did not offer any evidence that appellee was insolvent and unable to respond in damages; hence he failed in his proof to negative the existence of an adequate legal remedy. Lewis v. Clark, Tex.Civ.App., 129 S.W.2d 421; and Jeffers v. Rondeau, Tex.Civ.App., 1 S.W.2d 380. See, also, Raine v. Searles, Tex.Civ.App., 302 S.W.2d 486. The granting of an injunction in violation of this time honored provision, that is, in face of an adequate remedy at law, constitutes an erroneous, abuse of the discretionary powers vested in the chancellor. Burdette v. Bell, Tex.Civ.App., 218 S.W.2d 904.

The matter of good faith improvements was not raised by the pleadings nor determined by the judgment in the first case.Such case was more in the nature of a boundary dispute. The able trial .judge, who tried both cases, undoubtedly concluded that this issue must be determined in some future action. This rule of law is stated in Deal v. Carlton, Tex.Civ.App., 237 S.W.2d 1000, as follows:

“It has long been the rule in Texas that a defendant in a trespass to try title action does not lose his equity to recover for improvements made in good faith upon the land of another merely because he does not assert same in the trespass to try title action to evict him, but that he can later bring an independent suit therefor. Long v. Cude, 75 Tex. 225, 227, 228, 12 S.W. 827; Murphy v. Benson, Tex.Civ.App., 245 S.W. 249.”

The judgment is affirmed.


author: WILLIAMS, Justice.

text:
    LONE STAR GAS COMPANY, Appellant, v. J. W. MURCHISON and R. B. Sanders, Appellees.
    No. 15947.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 5, 1962.
    Rehearing Denied Feb. 2, 1962.
    Roy E. Pitts, Archie D. ICroney, and Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Luther C. Johnston, Palestine, and Justice, Justice & Kugle, Athens, for appellant!
    E. Tate McCain, Jr., Palestine, Wallace H. Scott, Jr., Hart and Hart, James P. Hart, Austin, for appellees.
   WILLIAMS, Justice.

This appeal presents a question of first impression in Texas. The primary question presented is whether title to natural gas, once having been reduced to possession, is lost by the injection of such gas into a natural underground reservoir for storage purposes.

Lone Star Gas Company, a natural gas public . utility company, brought this suit against J. W. Murchison and R. B. Sanders, in the District Court of Henderson County, Texas, for, taking, appropriating and converting to their own use natural gas alleged to belong to Lone Star. Appellant, Lone Star, sought to recover the value of the gas taken, as well as punitive damages, and an injunction against the continuing conversion of its gas. Appellees, in their countervailing pleadings, attack the jurisdiction of the District Court of Henderson County, Texas on the theory that the cause of action asserted by appellant was, in reality, a collateral attack upon a certain Railroad Commission orders and therefore exclusive jurisdiction was vested in the District Court of Travis County, Texas perforce Art. 6049c Vernon’s Ann.Civ.St. Subject to this plea, appellees leveled a number of special exceptions to appellant’s petition based primarily on the proposition that appellant had lost title to the natural gas in question when same had been injected into an underground reservoir for storage purposes. The trial court overruled the plea to the jurisdiction and sustained appellees’ special exceptions, holding that appellant’s petition did not state a cause of action and therefore dismissed the suit. In so doing the trial court specifically held that the appellant’s petition revealed that title to its gas had been lost, hence there could be no conversion. From this judgment, appellant appeals contending, in eight points of error, that the trial court erred in holding that appellant’s petition failed to state a cause of action; that the court erred in holding that the appellant lost title to the gas injected for storage; that the trial court erred in holding that the rule of capture applies to gas stored by appellant in underground reservoirs; that the court erred in sustaining various special exceptions; and that the court erred in dismissing appellant’s suit. Appellees, by counterpoints one and two, contend that the trial court was correct in dismissing appellant’s suit because there was no jurisdiction of the subject matter and further that appellant’s petition had failed to state a cause of action. By cross-point appellees assail the action of the trial court in overruling their plea to the jurisdiction.

We have concluded that the pivotal question presented by this appeal is propriety of the trial court’s action in holding that Lone Star’s pleadings failed to state a cause of action and in dismissing the suit. Accordingly, we consider first appellant’s points one through eight, and in doing so we must necessarily center our attention upon the petition. There are no disputed facts presented for determination. Since the Court below disposed of this case by sustaining special exceptions the facts alleged by Lone Star in its pleadings must be taken as true. Grimes v. Talbot, Tex.Civ.App., 233 S.W.2d 206; City of San Antonio v. Earnest, 144 Tex. 83, 188 S.W.2d 775. The petition is best presented by copying same haec verba:

THE PETITION
“Now comes the plaintiff, LONE STAR GAS COMPANY, a corporation organized under the laws of the State of Texas with its principal office in Dallas, Texas, complaining of the Defendants, J. W. Murchison and R. B. Sanders, both of whom reside in Henderson County, Texas, and for cause of action respectfully shows:
“I.
“Plaintiff is a natural gas public utility and is engaged in the business of transporting and distributing natural gas to the public and serves a large area of consumers of gas for domestic, commercial and industrial uses. The demand for gas fluctuates so that during each year there are periods of very high demand for gas by consumers served by Plaintiff and periods of very low demand. By staring gas during periods of low demand and withdrawing the same during the periods of high demand Plaintiff can efficiently meet the peak demands of the consumers on its system and at the same time furnish a more constant and uniform outlet for producers of gas. By storing gas, Plaintiff, during periods of low consumer demand, can purchase larger quantities of gas from gas wells, and larger quantities of cas-inghead gas produced from oil wells, and thus improve the market for gas and help prevent the waste of casing-head gas. The only feasible and the safest method of storing gas is underground storage. For storing gas Plaintiff uses underground storage in areas geographically and geologically situated so as to allow gathering and storage of surplus gas during low demand periods and the withdrawal and transportation thereof to the consumers on Plaintiff’s system in periods of high or peak demand.
“II.
“The Tri-Cities Bacon Lime Field, situated in Henderson County, Texas, is an exhausted gas field lying below the depth of 7,500 feet and constitutes a reservoir suitable for storing gas. Gas produced elsewhere can be injected therein for storage and later withdrawn as the need arises. When production of gas from said field was commenced in the year 1942, said field then contained approximately 22.5 million MCF of gas placed in such reservoir by natural forces and referred to herein as ‘native gas’. The abbreviation ‘MCF’ as used in this petition is an abbreviation meaning 1,000 cubic feet. After production was commenced from said field many wells were drilled therein which produced gas therefrom and withdrew the native gas from said Bacon reservoir; and on April 23, 1956, and effective April 9, 1956,. the Railroad Commission of Texas made and entered its order classifying said Bacon field as a gas storage reservoir, and a copy of said order is attached to this petition and marked Exhibit ‘A’, and by reference incorporated herein and made a part hereof as though set out in full herein.
“III.
“Before commencing the storage of of gas as hereinafter alleged, Plaintiff acquired and ever since has been and now is the owner of and in possession of all the wells in said Bacon Lime Field (hereinafter sometimes called ‘Bacon storage reservoir’) and the leases upon which said wells were drilled insofar as they covered, among other formation, said Bacon Formation. By instrument effective on or about January 1, 1956, the persons then owning said leases, together with the owners of the land covered thereby, and the owners of the minerals subject to said leases, entered into a unit operating agreement with Lone Star Producing Company granting to said company, among other things, the right to inject extraneous gas and store the same in said Bacon storage reservoir, and prior to the Railroad Commission order alleged above herein Plaintiff acquired and ever since has been and now is the owner of all the rights of Lone Star Producing Company under said unit operating agreement. After said order of April 9, 1956, was made by the Railroad Commission of Texas classifying said Bacon Field as a gas storage reservoir Plaintiff expended over $2,000,000.00 in installing equipment annd facilities to use said Bacon storage reservoir for the storage of gas. In November 1956, Plaintiff commenced and has thereafter continued to inject in said Bacon storage reservoir extraneous gas belonging to Plaintiff and in Plaintiff’s possession in Plaintiff’s pipe lines. ‘Extraneous gas’ as used in this petition means gas which was not produced from said Bacon Lime Field but produced elsewhere and acquired and owned by Plaintiff. All of the extraneous gas injected by Plaintiff in said Bacon storage, reservoir, as alleged in this petition, was gas in Plaintiff’s pipe line acquired by Plaintiff from other sources and was injected by Plaintiff in said Bacon storage reservoir for storage purposes in order that Plaintiff would have gas in storage to withdraw to meet the demands of consumers served by plaintiff in times of high demand. Plaintiff after commencing such gas injection has from time to time withdrawn gas from said reservoir to meet the demand of consumers served by Plaintiff. After Plaintiff commenced injecting gas in said Bacon storage reservoir no withdrawal of gas have been made by anyone other than Plaintiff except the Defendants in 1959 commenced and have continued to take and appropriate extraneous gas stored in said reservoir by Plaintiff as hereinafter alleged.
“IV.
"The tract of land of 89.05 acres, more or less, in Lot No. 12 in the Jacob Tator Survey, Henderson County, described in that certain oil and gas lease dated September 15, 1958, made by W. W. Jackson and wife, as lessors, to J. W. Murchison, as lessee, and recorded in Volume 37, Page 407, Lease Records of Henderson County, Texas, is herein referred to as ‘said Jackson tract’. Said Jackson tract lies in the Southwest part of said Bacon storage reservoir, and a small portion of said reservoir extends under said Jackson tract. In 1956 when Plaintiff commenced storing gas in said Bacon storage reservoir no well had ever been drilled on said Jackson tract. Said Jackson tract was not then under an oil and gas lease, and Plaintiff did not acquire a lease on said Jackson tract, and the owners of said Jackson tract were not parties to the unit operating agreement alleged above in paragraph III hereof.
“V.
“In September of 1958 the Defendant J. W. Murchison obtained from W. W. Jackson and wife, as lessors, an oil and gas lease covering said Jackson tract, the lease dated September 15, 1958, and referred to above herein. And thereafter said Defendant Murchison assigned an interest in said lease to the Defendant R. B. Sanders. By the end of November 1958, Plaintiff had injected for storage a cumulative net total of 19,034,479 MCF of gas in said Bacon storage reservoir (over and above the amount withdrawn from said storage reservoir by Plaintiff) all of which 19,034,479 of gas constituted extraneous gas contained in said Bacon storage reservoir which had been injected by Plaintiff for storage and belonged to Plaintiff, there being no native gas then left in said reservoir. Soon thereafter, in December 1958, Defendants commenced a well on said Jackson tract and thereafter drilled the same into the Travis Peak Formation, lying below the Bacon Formation, and at a depth of approximately 8,400 feet Defendants completed said well as a small producing gas well in the Travis Peak Formation. This well, drilled by Defendants, went through said Bacon Storage Reservoir; and in May, 1959, Defendants tapped said Bacon storage reservoir by perforating the casing in said well in said Bacon storage reservoir, and Defendants then commenced and have continued to take large quantities of gas from said gas Bacon storage reservoir and sell the same. None of the gas taken by Defendants from said Bacon storage reservoir is native gas; all of the native gas originally contained in said reservoir had been produced from said reservoir long before Defendants commenced taking gas therefrom, and no person other than Plaintiff has injected any gas in said Bacon storage reservoir. The gas so taken and appropriated from said Bacon storage reservoir by the Defendants is extraneous gas belonging to Plaintiff stored by Plaintiff in said Bacon Storage reservoir as hereinabove alleged. Neither of the Defendants has injected any gas in said Bacon storage reservoir, but Defendants have taken and appropriated from said storage reservoir through said well and converted many millions cubic feet of said extraneous stored gas belonging to Plaintiff, the exact amount of which is not known to Plaintiff but is well known to the Defendants, all to the Plaintiff’s damage in the amount of $37,000.00; and in this connection Plaintiff alleges that Defendants have so taken and converted an amount of gas having a reasonable market value in excess of $37,000.00 and having a value to Plaintiff above said amount.
"VI.
"Defendants have sold said gas taken and appropriated by them as alleged above and retained the proceeds therefrom for themselves. In the alternative Plaintiff says that Defendants have thus been unjustly enriched at the expense of the Plaintiff to the extent of the value of said gas taken and appropriated by Defendants from said Bacon storage reservoir and that the Defendants should be compelled to account to Plaintiff for the proceeds of the sale of the gas, the exact amount of which is well known to the Defendants.
“VII.
"Defendants acted wilfully, wantonly, intentionally, and maliciously in tapping said gas storage reservoir and in taking, appropriating and converting to their own use the extraneous gas stored therein by Plaintiff, as hereinabove alleged, and Plaintiff is entitled to punitive or exemplary damages from Defendants in the amount of $75,000.00.
“VIII.
“Defendants have continued to take and appropriate said extraneous gas stored by Plaintiff in said Bacon storage reservoir and have threatened to continue, and Plaintiff is informed and believes Defendants will continue to do so unless restrained by this honorable court. Plaintiff does not have an adequate remedy at law to prevent such continued and multiple takings by Defendants, and Plaintiff is therefore entitled on final hearing to an injunction permanently enjoining Defendants from taking such gas.”

Plaintiff’s prayer was for the value of the extraneous gas taken by defendants and converted by them, as alleged, also recovery on the theory of unjust enrichment, for exemplary damages and a request for permanent injunction.

TRIAL COURT’S JUDGMENT.

The trial court, in the material portion of his order said:

“The Court is of the opinion that Plaintiff as a matter of law lost title to the gas injected for storage by Plaintiff in the Bacon Lime Storage Reservoir when it migrated under the Jackson tract and was produced by Defendants from their well on the Jackson tract. Hammonds v. Central Kentucky Natural Gas Co., 255 Ky. 685, 75 S.W.2d 204. The rule of capture as stated in Brown v. Humble Oil & Refining Company, 126 Tex. 296, 83 S.W.2d 935, [87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393] applies to the gas injected by Plaintiff for storage. Therefore, the Court finds that Plaintiff’s petition fails to state a cause of action, and the Defendants’ exceptions to Plaintiff’s petition must be sustained.”

OPINION

It is of utmost importance to understand that we are not here dealing with natural gas as it exists in its natural state. We are concerned here with what is known as “extraneous gas” which means gas which has been produced elsewhere, acquired and owned by Lone Star and then, for purposes of storage, injected into the Bacon storage reservoir underlying about 4,000 acres in Henderson County, pursuant to authority of the Railroad Commission of Texas. A distinction which must be applied between the status of natural gas, as such, and “extraneous gas”, as defined, is a controlling feature of this appeal. The law of Texas relating to the original capture of natural gas from underlying structures is well settled by the Supreme Court in Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393. On the other hand the direct question of ownership and status of extraneous gas has never been presented to Texas Courts. It is of paramount importance, in approaching this question, to bear in mind the nature of the suit by Lone Star. The action is simply one seeking damages and redress from the conversion of gas which appellant contends is its personal property. Nothing more is here presented. Appellees expend a great deal of space in their brief to the argument that appellant has trespassed upon their property. The status of this record is such, however, that we must, as Ulysses “lash ourselves to the mast and resist Siren’s songs” of trespass, or similar contention. This, for the simple reason that no action seeking redress or claimed trespass is here presented. The simple question upon determination is one of title and ownership, i. e., did the title and ownership of the extraneous gas herein involved, which appellant acquired and stored in the underground reservoir for use, pass from appellant to appellees ?

The case relied upon by the trial court, and the one which appellees ask us to embrace as the law of Texas, is Hammonds v. Central Kentucky Natural Gas Company, 255 Ky. 685, 75 S.W.2d 204, decided in 1934 by the Court of Appeals of Kentucky. In that case the defendant, Gas Company, had exhausted a gas field of about 15,000 acres and then brought in gas from distant fields and stored in this exhausted reservoir. Hammonds owned 54 acres within this field which was never leased to the gas company. Plaintiff brought suit to recover for use and occupation on the theory of trespass. The court first admitted that natural gas, when severed and brought under dominion and into actual possession at the surface, becomes the personal property of the one who has extracted it under a right to do so. The question, said the Kentucky Court, is whether that gas, having once been reduced to possession and absolute ownership having vested, was restored to its original wild and natural status by being replaced in a similar reservoir or nature, taking the place of other gas which once occupied that same subterranean chamber. The court, applying the doctrine of animals ferae naturae, reasoned, as follows:

“In seeking for an analogous condition in the law, the courts, since the early Pennsylvania case, have compared natural gas and oil to that of animals ferae naturae. The analogy, as we have' seen formed the basis of the all but universal doctrine of property in these wandering minerals. So we may look to that analogous law. From the beginning, wild animals have been regarded as quasi property of the entire human' race. It is the recognition of land titles rather than of any individual property in the game that prevents its pursuit, and, barring all questions of trespass, exclusive property in birds and wild animals becomes vested in the person capturing or reducing them to possession. But unless killed, this is a qualified property, for when restored to their natural wild and free state, the dominion and individual proprietor - ship of any person over them is at an end and they resume their status as common property. 3 C.J. 18, 19. So, too, are fish collective property so long as they remain unconfined in their natural element in a public stream, and not even the owner of the soil over which the stream flows owns the fish therein, although he may have the exclusive right of fishing in the stream where it runs over his land. And, as in the case of wild game, a qualified property in an individual may be acquired by catching and confining fish within a private pond so they cannot escape. If, however, the fish escape and are found at large in their proper element, they again become public property and are subject to appropriation by the first person who takes them. 26 C.J. 597.
“If one capture a fox in a forest and turn it loose in another, or if he catch a fish and put it back in the stream at another point, has he not done with that migratory, common property just what the appellee has done with the gas in this case? Did the company not lose its exclusive property in the gas when it restored the substance to its natural habitat?” (Emphasis supplied).

Concluding that the gas company had lost its title to the gas which had been reinjected, the court said:

“We are of the opinion, therefore, that if in fact the gas turned loose in the earth wandered into the plaintiff’s land, the defendant is not liable to her for the value of the use of her property, for the company ceased to be the exclusive owner of the whole of the gas — it again [becomes] mineral ferae naturae.”

The Hammonds case was followed by the same court in Central Kentucky Natural Gas Co. v. Smallwood, Ky., 252 S.W.2d 866 and by dictum in Protz v. Peoples Natural Gas Co., 93 Pittsb.Leg.J. 239, aff. 94 Pittsb.Leg.J. 139. It was cited with approval in West Edmond Salt Water Dist. Ass’n v. Rosecrans, 204 Okl. 9, 226 P.2d 965 in a case following the disposal of salt water by reinj ection.

Hammonds, in its application of ferae naturae doctrine, has been the subject of violent adverse criticism by many authors and law review writers.

Summers, “Oil and Gas”, permanent Ed. Vol. 1, p. 173, states:

“All of these analogies of oil and gas to solid minerals, in subterranean waters, and to animals ferae naturae are false, for the reason that the physical and economical facts of oil and gas from which the legal relations of the landowner respecting them are actually determined, are different from the physical and economic facts of the substances with which they are compared.”

In 21 U.Kan.City L.Rev. 217, 220 (1954), the author says:

“If the law pertaining to minerals in this country is to retain its stability and uniformity, it is mandatory that this vicious analogy between natural gas and animals ferae naturae which has reared its ugly head be destroyed without delay.”

In 36 Va.L.Rev. 947 (1950), it was said:

“ * * * the public has an undoubted interest in the production and distribution of fuel gas. The health and well-being of great numbers of people are involved and can not be postponed to the selfish desires of a few. Since the efficient and economical distribution of natural gas in many areas demands its storage in exhausted strata, the strata must be made available.”

One of the most distinguished and outstanding authorities on oil and gas law in Texas, A. W. Walker, Jr., in 16 Tex.L.Rev. 370 said:

“It is unfortunate that our law as to oil and gas developed before scientific information was available as to the exact nature of oil and gas reservoirs. Throughout all of the earlier decisions are to be found statements indicating the prevailing erroneous opinion that oil and gas in their natural state possessed the quality of free migration. Even as late as 1921, one of the Texas ■courts indulged in the fanciful statement that oil and gas ‘are supposed to percolate restlessly about under the surface of the earth, even as the birds fly from field to field and the beasts roam from forest to forest’.
“In the absence of common-law precedent, and without the benefit of scientific information, it is not surprising that the courts sought by analogy to compare oil and gas to other types of property such as wild animals, subterranean waters, and solid minerals, -with reference to which there was .ample common-law precedent upon which to determine property rights. These ugly analogies in the light of modern scientific information have been ■disproven, and the courts have come to -.recognize that oil and gas, as commonly found in underground reservoirs are ■really sui generis, and we are rapidly ■developing a special jurisprudence .adapted to the peculiarities of these ■particular minerals.”

William Jarrell Smith, another outstanding authority on oil and gas litigation, ■speaking on the subject “Rights and Liabilities on Subsurface Operations”, Eighth .Annual Institute on Oil and Gas Law and Taxation, Southwestern Legal Foundation, .said:

“It seems to me that this ferae na-turae doctrine has long since served its -purpose. Back in the days when people did not have such concept of subterranean conditions, it could be excused. * * * If you are going to use the animal theory, then it seems to me that we are dealing with a domestic .animal. If a horse strays over on a neighbor’s land, the neighbor may be •entitled to his damages, but he does not, by virtue of the trespass, acquire title to the horse.”

For similar criticism see 13 Tex.L.Rev. 378; 41 W.Va.L.Quarterly 431; 48 Harvard L.Rev. 855; Kulp, “Oil and Gas Rights” p. 526; Stamm, “Legal Problems in the Underground Storage of Natural Gas”; 36 Tex.L.Rev. 161; 19 Minn.L.Rev. 483; Woodward, “Recent Developments in the Law of Oil and Gas”; 1961 proceedings of the Section of Mineral & Natural Resources Law, Am.Bar Association.

It was not until 1960, 26 years following Hammonds, that we find an adjudicated case which repudiates the holding of the Kentucky Court. In White v. New York State Natural Gas Corp. et al. (U.S.Dist.Ct.Western Dist. of Pa.), 190 F.Supp. 342, plaintiff, as owner of an interest of the proceeds from the sale of gas produced by certain wells in Pennsylvania brought suit to restrain the restriction of production. The defendant Gas Company admitted that it was curtailing production, but alleged in defense that the native reserve gas had been exhausted from the drainage area of the wells, and that present production was of storage gas which had migrated from adjoining fields and defendant therefore contended that the production of this gas for the plaintiff’s benefit would be a wrongful taking of the gas belonging to the storage companies. Plaintiff countered that such would not constitute a defense claiming, under the doctrine of animal ferae naturae, that the injector of gas into a natural underground reservoir loses title to the gas. The court refused to follow the Kentucky authority on Hammonds, saying:

“The pivotal issue in this case is whether title to natural gas, once having been reduced to possession, is lost by the injection of such gas into a natural underground reservoir for storage purposes.
“ * * * application of the ferae naturae analogy apparently has been limited to the original ‘capture’ of native gas and oil. Insofar as title to gas and oil in place is concerned, the Supreme Court has long considered as firmly established the rule that ‘ * * oil and gas are minerals, though not commonly spoken of as such, and while in place are part of the land’ (Kier v. Peterson, 41 Pa. 357, 362 * * *); * * *
“Once severed from the realty, however, gas and oil, like other minerals, become personal property.
" * * * title to natural gas once having been reduced to possession is not lost by the injection of such gas into ’ a natural underground reservoir for storage purposes(Emphasis ours.)

The decision in the White case has been the subject of a recent law review discussion by Reasoner entitled “Injector of Natural Gas into a Natural Underground Res-^ ervoir Retains Title to the Gas”. 40 Tex.L.Rev. #2, pp. 290-294, wherein the author says:

“The court’s decision is an eminently sound one. The analogy between oil and gas and animals ferae naturae is inappropriate and should not be allowed to result in decisions which would needlessly hinder an industry so vital to the economy as the underground storage of natural gas. In contrast with animals, oil and gas are inanimate, insentient, and move only in accordance with the physical laws of gravity and pressure. They are not ‘wandering and fugitive’ but collect in reservoir traps where they almost invariably stay until man interferes with them. Moreover, natural gas, unlike wild animals, is the basis of one of the country’s largest and most vital industries.
“The policy arguments in favor of the court’s decisions are extremely strong. It has become essential to build up a large storage reserve in the summer months to meet the heavy demands of the northern cities which are thousands of miles from the gas fields of the-Southwest. Natural underground reservoirs are the only economically feasible way to store such reserves. The public’s vital concern with such storage is evidenced by the fact that numerous states have passed ‘underground storage condemnation’ statutes. In addition, at least three states have passed statutes which state explicitly that the injector of natural gas retains title to-it. Thus the decision is clearly in the public’s interest, in that it removes a. prospective hinderance to the utilization of exhausted gas fields for storage-reservoirs.
“The legal problems resulting from underground storage of gas are far from resolved. This case is, however,, a very salutary step in overcoming the psuedo-logical analogy of the Ham-monds case and in bringing the realistic approach to problems in this area which the complex necessities of our industrial society require.”

Several states have enacted legislation-which provides explicitly that the injector of natural gas retains title thereto. Colo.. Rev.Statutes Ann., Chp. 100, § 100-9-7;. Mo.Ann.Statutes Title 25, § 393.500; Okla. Statutes Ann. Title 52, § 36.6 (1960).

Appellees seeking to apply the analogy of percolating waters, rely upon Rock Creek Ditch & Flume Co. v. Miller, 93 Mont. 248, 17 Pac.2d 1074, 80 A.L.R. 200, where it was held that the person had reduced water to possession lost his title to it when it was allowed to go into the ground and become a part of the percolating water. We find no valid analogy between percolating-waters and stored gas. Our Supreme-Court, in passing upon a similar question, in Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 4 A.L.R.2d 191, said:

“In the absence of common law precedent, and owing to the lack of scientific information as to the movement of these minerals, some of the courts have sought by analogy to compare oil and gas to other types of property such as wild animals, birds, subterranean waters and other migratory things, with reference to which the common law had established rules denying any character of ownership prior to capture. * * *
“In the light of modern scientific knowledge these early analogies have been disproven, and courts generally have come to recognize that oil and gas, as commonly found in underground reservoirs, are securely entrapped in a static condition in the original pool, and, ordinarily, so remain until disturbed by penetration from the surface.”

The question of title to waters which have been captured and placed in a drainage ■ditch was passed upon in Harrell v. F. H. Vahlsing, Inc., Tex.Civ.App., 248 S.W.2d 762, wherein an opinion by Justice Norvell, now on the Supreme Court, it was held that ■one who had captured water and placed it in a drainage ditch did not lose title thereto.

For an interesting discussion of the question of title to water in such a situation see Weil “Water Rights” (3rd Ed.) § 38.

There can be no doubt that gas which has been produced is personal property. Thus, in 31-A Tex.Jur. 27, it is said: “When oil or gas is removed from the soil it becomes personalty.” Chaffin v. Hall, Tex.Civ.App., 210 S.W.2d 191; Stephens v. Stephens, Tex.Civ.App., 292 S.W. 290; 98 C.J.S. Witnesses § 415, p. 218; 24 Am. Jur. 519-20.

Assuming the existence of title to the gas as personal property while held above the ground by the owner the question remains does such ownership cease by the act of the owner in storing it in a well-defined storage reservoir. The owner of personal property does not lose his title thereto by not having the property on his person or on his land unless there is abandonment, and abandonment requires an intent to abandon, which is not present in this case. In 1 Tex.Jur. 10, it is said: “The doctrine of abandonment rests primarily on intention. Indeed, it is common in cases dealing with this subject to find it said that abandonment is a question of intention. Accordingly there must have existed an intention to abandon before property or a right therein can be lost.” Contrary to the theory of abandonment we find in this record a positive statement of intention on the part of appellant to reclaim its gas as it is needed to satisfy the demand of consumers during times of high fuel consumption.

From the available authorities on this subject and based upon what we consider to be sound and logical reason, especially in the light of advanced knowledge and scientific achievement in the oil and gas industry, we are of the opinion that the rule of the Hammonds case should not be embraced as the law in Texas. An exegesis of the Hammonds opinion, when considered in the light of present day development of the gas industry, is unimpressive. The analogy of wild animals upon which Ham-monds is founded fails to undergird the ultimate decision of that case. Gas has no similarity to wild animals. Gas is an inanimate, diminishing non-reproductive substance lacking any will of its own, and, instead of running wild and roaming at large as animals do, is subject to be moved solely by pressure or mechanical means. It cannot be logically regarded as personal property of the human race as are wild animals, instead of being turned loose in the woods as the fanciful fox or placed in the streams as the fictitious fish, gas, a privately owned commodity, has been stored for use as required by the consuming public being, as alleged by appellant, subject to its control and withdrawal at any time. Logic and reason dictates the application of the White decision rather than Hammonds, to the end, that in Texas, the owner of gas does not lose title thereof by storing the same in a well-defined underground reservoir. It follows, therefore, that the trial court was in error in applying the Hammonds doctrine and thereby holding that Lone Star had lost title to its gas by storing it.

As noted, the trial court also cited Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393 in support of this judgment, thereby holding that the rule of capture as stated in Brown also applies to gas injected for storage. The case of Brown v. Humble Oil & Refining Co., (Supra), does not involve stored gas, but is a rule 37 case involving a permit to drill a well in the East Texas Oil Fields. The Supreme Court, in a comprehensive opinion, discusses the Texas law which recognizes the ownership of oil and gas in place and gives to the lessee a determinable fee therein. There has never been a serious question raised concerning this law in Texas, but it must he remembered that the decision relates only to the original capture of gas and has no proper application to the factual situation under consideration, i. e., gas which has been originally captured and subsequently restored.

Cases cited by appellees such as Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961; Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558, 4 A.L.R.2d 191; Ryan Consolidated Petroleum Corp v. Pickens, 155 Tex. 221, 285 S.W.2d 201, all deal with the law of original capture and hence not applicable to the factual situation here presented. We have been cited no case by ap-pellees in Texas holding that the doctrine of original capture applies with equal force to stored gas. It is our opinion that the trial court erred in applying the rule of original capture to a situation as presented here.

From what we have said it seems obvious to us that the trial court committed error in holding that Lone Star had failed to state a cause of action, and sustaining the special exceptions to the pleadings and in dismissing plaintiff’s lawsuit. Appellant’s first through eight points are sustained.

We turn now to a consideration of appel-lees’ cross-point wherein it is seriously contended that the District Court of Henderson County, Texas had no jurisdiction to hear and determine this case.

As related above, Lone Star’s petition alleged that the Railroad Commission conducted a hearing on the question of whether Lone Star should be authorized to conduct gas storage operation in the Bacon Lime Reservoir in the Tri-Cities Field. Having found that this reservoir was suitable for underground gas storage operations, the Railroad Commission, on April 23, 1956 issued its order providing detailed regulation of wells for injecting gas into that reservoir, a portion of which extended under the 89.05 acre tract known as the Jackson Lease upon which the Lone Star affirmatively pleaded it did not have a lease. Lone Star alleged that, pursuant to the Railroad Commission’s order referred to, it began to conduct a program for the injection of gas into the Bacon Lime Reservoir. Thereafter, in December 1958, the appellees commenced to drill a well on the Jackson Lease, first completing it in the Travis Peak Formation and thereafter, also completing it in the Bacon Lime Reservoir and began the production of gas from such well. It was this, gas that Lone Star alleged belonged to it and for which it asked judgment for payment and damages. Upon the hearing on the plea to the jurisdiction filed by appellees, testimony was introduced in the trial court revealing that on March 23, 1959, Lone Star protested to the Railroad Commission against the application of appellees for permission to dually complete their Jackson well, one of the completions to be in the Bacon Lime zone. After hearing, the Railroad Commission denied Lone Star’s protest and approved the application of appel-lees to dually complete their Jackson well, a part of which being in the Bacon Lime zone. The record also shows that Lone Star next filed an application with the Railroad Commission seeking an amendment to rules relating to the Bacon Lime Reservoir or in the Tri-Cities Field, the effect of such application being to seek a regulation of production from the Bacon Lime Reservoir so that the correlative rights and property may be protected. Following a hearing the Railroad Commission denied Lone Star’s application for an additional field rules or amendments. Appellees contended in the trial court, and contends here, that Lone Star’s remedy, if any, lay in appeals from such Railroad Commission’s orders to the District Court of Travis County, Texas pursuant to § 8, of Art. 6049c Vernon’s Ann.Civ. St., and that, having failed to appeal therefrom, appellant is precluded from bringing this suit in the District Court of Henderson County, Texas relying upon such authorities as Railroad Commission v. DeBardeleben, Tex.Civ.App., 297 S.W.2d 203, aff. 157 Tex. 518, 305 S.W.2d 141; Railroad Commission of Texas v. Texas Company, Tex.Civ.App., 298 S.W.2d 666; Dailey v. Railroad Commission, Tex.Civ.App., 133 S.W.2d 219; Corzelius v. Harrell, Tex.Civ.App., 179 S.W.2d 419; Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364; Magnolia Petroleum Co. v. Edgar, Tex.Civ.App., 62 S.W.2d 359; West Texas Compress & Warehouse Co. v. Panhandle & S. F. Ry. Co., Tex.Com.App., 15 S.W. 558 and Texas Steel Co. v. Fort Worth & Denver City Ry. Co., 120 Tex. 597, 40 S.W.2d 78. These cases deal primarily with spacing rules, permits, and regulatory orders which we deem are not analogous to the factual situation here.

The statute relied upon by appellees, Art. 6049c § 8, Vernon’s Ann.Civ.St. provides that any interested person affected by any rule, regulation or order of the Railroad Commission shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, or the members thereof, as defendants, to test the validity of said rules, laws, regulations or orders. It is immediately apparent that this suit is not one brought under § 8 of Art. 6049c to review any Railroad Commission order, rule or regulation. Lone Star’s petition does not seek to annul or set aside any rule or order of the Commission, nor is the Railroad Commission or the members thereof, parties to this suit. No relief is sought against the Commission or any of its members. The petition reveals nothing more than a common law cause of action for conversion of property and a prayer for damages. No question of venue is here presented inasmuch as it is undisputed that the appellees are residents of Henderson County, Texas.

In determining the question for jurisdiction the allegations of plaintiff’s petition are to be taken in good faith and determinative of the cause of action. Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466. See also Jones v. Maples, Tex.Civ.App., 184 S.W.2d 844, writ ref.; Ellis v. Houston & T. C. Ry. Co., Tex.Civ.App., 203 S.W. 172, Writ Ref., and Hilley v. Hilley, Tex.Civ.App., 305 S.W.2d 204, writ ref. n. r. e.

This suit is one for adjudication concerning the title and ownership of gas. Simply stated, appellant says it owns the gas which has been taken by appellees. The appellees say that appellant has lost its title to the gas. The Railroad Commission of Texas has no jurisdiction to adjudicate ownership of property and we find no authority which justifies the usurpation by the Railroad Commission of the rights of courts in this regard. We find nothing in the orders of the Railroad Commission relied upon by appellees to attempt to determine the title controversy presented by the pleadings here. The Railroad Commission is nothing but an administrative body appropriately clothed with authority to perform salutary functions of economic nature for the conservation of natural products. Its function is to administer conservation laws only and not to take the place of courts in their historical jurisdictional field.

The Supreme Court in Magnolia Petroleum Co. v. Railroad Comm., 141 Tex. 96, 170 S.W.2d 189 said:

“The function of the Railroad Commission in this connection is to administer the conservation laws. When it grams a permit to drill a well it does not undertake to adjudicate questions of title or rights of possession. These questions must be settled in the courts.”

The question of jurisdiction presented by-appellees is untenable and must be overruled. Whelan v. Placid Oil Co., Tex.Civ.App., 274 S.W.2d 125; F. A. Gillespie & Sons v. Railroad Commission, Tex.Civ.App., 161 S.W.2d 159; Pan American Production v. Hollandsworth, Tex.Civ.App., 294 S.W.2d 205; Pan American Petroleum Corp. v. Railroad Commission, Tex.Civ.App., 318 S.W.2d 17; Novak v. Brunner, Tex.Civ.App., 320 S.W.2d 439; Nugent v. Freeman, Tex.Civ.App., 306 S.W.2d 167; Ryan Consolidated Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201; 31-A Tex.Jur. § 430, p. 756.

The judgment of the trial court is reversed and remanded for trial on the merits.

YOUNG, J., not sitting.