author: KRUEGER, Judge. GRAVES, Judge.

text:
    BROWN v. STATE.
    No. 21163.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied Oct. 23, 1940.

      Thos. B. Bartlett, Jr., of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is forgery. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant first complains of the action of the trial court in declining to sustain his motion to quash the indictment because, in addition to charging forgery, it charged that the defendant had theretofore, on the Sth day of February, A. D., 1934, been convicted in the District Court of Curry County in the State of New Mexico, in cause No. 1533 on the docket of said court, of the offense of burglary, — an offense of like character as the one herein charged and that said conviction had become final against him. We think that the court should have sustained the appellant’s motion and stricken that part of the indictment charging the former offense because burglary is not an offense of like character or of the same nature as forgery; but the court, in his charge to the jury, declined to instruct them relative to the former conviction of burglary alleged to have been committed in the State of New Mexico, which was tantamount to a withdrawal thereof from the consideration of the jury. Appellant nevertheless contends that the reading of the indictment to the jury and advising them of the former conviction in the State of New Mexico was highly prejudicial to him. We are not prepared to agree with the appellant in his contention, for the reason that there is no statement of facts in the record and in the absence of such a statement we are unable to determine whether any injury resulted to him by reason of the court’s action. Appellent was awarded the lowest punishment prescribed by law for the offense of forgery. The evidence adduced against the appellant may have been so strong and convincing that no other verdict than one of guilty could have been rendered by the jury. It is obvious that the jury did not consider and could not under the instruction of the court have considered the charge of former conviction in the State of New Mexico because they assessed the lowest punishment against him.

Appellant has a number of bills of exception in the record a great number of which are qualified by the trial court. However, in the absence of a statement of facts we are unable to appraise the same. Vernon’s Ann.Tex.C.C.P., Vol. 3, Art. 760, note 6 and cases cited thereunder.

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

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant again complains of the trial court’s action in allowing the reading to the jury of the third count in the indictment in which a conviction for an offense of burglary had been also alleged in an effort to enhance the penalty in this forgery case, and also of the fact that in qualifying the jury the State’s attorney asked the jury relative to the presence of any prejudice in their minds against the law enhancing the punishment of a second offender.

We do not see what reason, if any, the said attorney could have had in questioning the jury relative to the operation' of the enhancement statute. The jury had naught to do with affixing such enhanced punishment in the event of a second conviction. Had the trial court submitted all the counts in the indictment to the jury, and had their verdict been predicated upon the third count therein, they would only have been required to find, as to the question of guilt, the amount of' punishment being a matter of law for the court to have attended to. See Harbert v. State, 136 Tex.Cr.R. 301, 124 S.W.2d 1005; also see Art. 62, Penal Code.

It is worthy of note that the trial court submitted the first count in the indictment alone, which charged the act of forgery, and also instructed the jury to not consider the other two counts in the indictment for any purpose. We also note from bill of exceptions No. 10 that the appellant made no objection to the purported statement to the jury on their voir dire qualification relative to appellant being charged as a second offender until the trial court was preparing to read his charge to the jury, at which time the appellant objected to such charge, we presume orally, because same did not so charge the jury not to consider the statement made to them by the district attorney relative to the alleged second offense. It is also worthy of note that on January 8, 1940, the date of the trial of this case, appellant filed his objections in writing to the court’s charge. Nowhere in said objections is there mention made of any objection or exception thereto because of its failure to charge as complained of in bill No. 10, which bill we find to have been filed on March 16, 1940. The statute, Art. 658, C.C.P., Vernon’s Ann. C.C.P. Art. 658, requires that all objections and exceptions to the court’s charge shall be presented in writing, distinctly specifying each ground of objection. We do find in the record such a document, containing nineteen paragraphs, objecting and excepting to the court’s charge, but nowhere therein do we find set forth the objection contained in bill No. 10.

The purpose of requiring the filing of such objections in writing is to call the matter to the trial court’s attention and give it an opportunity to correct the charge if found to be incorrect. 'See Spadachene v. State, 137 Tex.Cr.R. 26, 127 S.W.2d 466.

We further observe that this bill is incomplete as an objection to the statement made by the district attorney because the same does not show an objection thereto, but is entirely predicated upon the proposition of the court’s failure to charge the jury not to consider such statement.

It is also to be noted that the jury awarded appellant the lowest penalty affixed to the offense of forgery, and although the conviction must have been had on circumstantial evidence, we do not think the unwarranted pleading, alleging forgery and burglary to have been offenses of a similar nature, would have been sufficient to have caused a jury to have unfairly convicted this appellant; nor do we think that the mention of such a prior conviction by the district attorney could have had such a great weight with such jury that it caused a conviction herein regardless of testimony. We have not been aided by a statement of facts herein, and are forced to gather but meager ones from the bills of exception, in which we do find that apellant obtained three blank checks on the Marlin National Bank from one Baughn in a store, and he and one Lloyd Fulton went back in the store with these blank checks; soon thereafter Fulton shows up with three forged checks, and cashed them. Fulton and appellant then rode out of the town together. We do not know what other or further facts were presented to the jury in the absence of such a statement. We find that the trial court charged on the law of principals, and it seems to us that-the jury had the right to say that Fulton and appellant were acting together in the making of these forged instruments in Baughn’s store, and that appellant was actively engaged therein as a principal. We can go no further in the facts on account of appellant’s failure to furnish us with a statement thereof.

We do not feel justified in penalizing the State because of the reading of a defective third count in the indictment to the jury, but not submitted to them by the court, unless we are convinced that such a procedure operated to cause the loss of some right to the appellant. To do so would eventuate in a reversal in every instance in which the State might fail in its proof of an alleged second offense, even if proper to plead but not susceptible of proof at such time, although pleaded in good faith. Such a rule would be an unfair burden placed upon the exigencies of a trial.

We overrule the motion for a rehearing.


source: Caselaw Access Project

author: KRUEGER, Judge. CHRISTIAN, Judge.

license: Public Domain

text:
    MILLER v. STATE.
    No. 20903.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    Rehearing Denied Oct. 23, 1940.
    David E. Hume, of Eagle Pass, Geo. C. Herman, of Crystal City, and D. H. Jones, of Uvalde, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is aggravated assault and battery. The punishment assessed is a fine of $100.

The indictment upon which appellant was tried, contains two counts. The first charges that on or about the 24th day of March, 1939, Arch Miller in the County of Zavala and State of Texas, did inflict serious bodily injury upon Q. P. Ailen. The second count charged that on or about said date, Arch 'Miller in said county and state did make an assault upon Q. P. Allen with a deadly weapon by striking him, the said Allen, on the head with a pistol. When the case was called for trial, appellant waived a jury and submitted all questions of fact and law to the court. The trial court decided the issues of fact adversely to appellant’s contention and assessed the punishment as above indicated. From this judgment appellant has appealed to this Court. He brings forward two questions for review. The first is that the evidence is insufficient to warrant and sustain his conviction for the offense of aggravated assault and battery. The second is that the court erred in overruling appellant’s first application for a continuance. We will discuss these matters in the order in which they are presented.

The state’s testimony, briefly stated, shows that at the time of the alleged assault, a rodeo was in progress in Crystal City. Appellant had been requested by other rangers to be present on the occasion to assist in the capacity of a peace officer. About the time that the rodeo performance was to start, Q. P. Allen went into the arena, where Prof. Fly turned his watch over to him while Fly took part in the roping contest. About this time appellant walked up to Allen, kicked him and ordered him out of the arena. When Allen remonstrated, the appellant struélc him with a 45-calibre pistol. At this juncture the Sheriff of Frio, County and severál state patrolmen appeared on the scene, took Allen to a car and then to jail, where he was confined without being given any medical attention until the next day. Dr. Urban, who treated Allen’s .injuries, testified that he found a lacerated wound on the left side of the head. That he cleaned it and took four stitches in it and sewed it together. That a 45-calibre pistol or six shooter in the hands of a man the size of the appellant ordinarily would inflict that kind of a wound. That such a weapon, wielded by a man of the defendant’s strength against the head of another, would be considered a deadly weapon; that that character of a weapon, being wielded by a man of Mr. Miller’s strength as a bludgeon against the head of another, could be a deadly weapon. We quote further from his testimony: “I will say that it is one capable of inflicting a deadly wound. * * * I find that a scalp wound can be serious and it cannot be serious. In my professional judgment, that is in my opinion, it was just good luck that it did not result in serious injury. * * * It was more serious because it had been neglected than it otherwise would have been.”

Appellant testified that he held a ranger’s commission and was present at the rodeo. He stated that Allen got in the way of the chute where the calves were let out of the pen. That Mr. Sellers, who could not get Allen out of the way, called for some officer to get “that drunk out.” That he walked over to where Allen was and Allen began to curse and abuse him. He then slapped Allen down, but Allen fought back, whereupon appellant drew his pistol to strike him, but it slipped out of his hand and he did not hit Allen with it. A number of the other officers testified that Allen was drunk and that they carried him to jail, but saw no wounds on his head or any blood flowing therefrom. Some of the other witnesses corroborated the appellant. It will be noted that an issue was raised as to whether Allen was drunk, whether appellant struck him with a pistol, and whether a 45-calibre pistol in the hands of a man possessed with the strength of the appellant, was a deadly weapon when used as a bludgeon. The court decided these issues adversely to appellant, and we think that his conclusion is justified by the testimony. A deadly weapon is one which, from the manner of its use, is calculated or likely to produce death or serious bodily injury. Therefore, we would not be justified in holding the evidence insufficient to sustain the conclusion of the court that the pistol, as used in appellant’s hands at the time, was a deadly weapon.

We are thoroughly in accord with the authorities cited by appellant but do not think they have application to the facts of this case. See Hardin v. State, 47 Tex.Cr.R. 493, 84 S.W. 591; 4 Tex.Jur. p. 870; Hilliard v. State, 87 Tex.Cr.R. 15, 218 S.W. 1052, 8 A.L.R. 1319.

With reference to the court’s action in overruling appellant’s motion for a continuance and the court’s action in overruling appellant’s motion for a new trial based thereon, we notice from the motion that the testimony of the absent witnesses would have been but cumulative of the testimony given by some of the other witnesses. The court may have concluded that if their testimony had been before him it would not have changed the result. Consequently, the overruling of said motion presents no reversible error.

All other matters complained of by appellant have been carefully examined by us and are deemed to be without merit.

No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing

CHRISTIAN, Judge.

In his motion for rehearing appellant earnestly insists that the evidence is insufficient to support the judgment of conviction.

In view of the fact that the case was tried without the intervention of a jury, the findings of facts by the trial judge are as conclusive on the Court of Criminal Appeals as the verdict of a jury. Article 706, Code Cr.Proc., reads as follows: “The jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence.”

Our re-examination of the testimony in the light of appellant’s motion for rehearing leaves us of opinion that the testimony of the state was sufficient to support the finding of the trial judge. The question of the credibility of the witnesses is not for us, but was solely for the trial judge. The .conflict in the evidence having been settled by him, and his conclusion finding support in the testimony, we would not be warranted in reversing the judgment. See Parker v. State, 92 Tex.Cr.R. 476, 244 S.W. 529. As said in Vana v. State, 93 Tex.Cr.R. 202, 246 S.W. 1034, “The verdict of the jury, however, settling the conflict in behalf of the state, is conclusive upon this court.” In Williams v. State, 100 Tex.Cr.R. 50, 271 S.W. 628, 629, Judge Morrow used language as follows : “The evidence adduced by the state, ■ though controverted, is sufficient to support the verdict, and the solution of the issue by the jury is binding upon this court.”

The motion for rehearing is overruled.

PER CURIAM.

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


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    GATES v. STATE.
    No. 20765.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Rehearing Denied Oct. 23, 1940.

      Jo Ed Winfree, Sr., of Houston, W. S. Poston, of Groveton, and S. F. Hill, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is murder; the punishment assessed is confinement in the State penitentiary for a term of twenty-five years.

The record shows that the homicide occurred at a beer tavern in Trinity County, Texas. It appears that the deceased had imbibed rather freely of both whisky and beer. He had knocked one person down and when appellant went to quell the disturbance a difficulty arose which resulted in the killing. Appellant admitted the killing but contended that his action was in self-defense as the deceased was cutting him with a knife. This issue was very hotly contested.

Appellant was indicted in Trinity County, Texas, at the February Term, 1938. The case was transferred by change of venue to the district court of Walker County, and was by that court, on its own motion, transferred to the district court of Polk County, Texas.

Appellant’s first contention is that the court erred in overruling his motion questioning the jurisdiction of the district court of Polk County. He offered no proof in support of his motion, but insists that the order transferring the cause from Walker to Polk County is void on its face for several reasons: (1) That the order states no legal reason for a change of venue; (2) that the defendant not being present in court at the time the venue was changed from Walker County, and this being a capital case, the order is void; (3) that the defendant voluntarily submitted himself to the jurisdiction of the court in Polk County, and was neither placed in jail in Walker County nor entered into a recognizance in Walker County as the order changing the venue directed.

Appellant’s contention that the order states no legal reason for a change of venue is without merit. The cause was transferred from Walker County to Polk County on the court’s own motion as provided by Art. 560, C.C.P. This article provides that: “Whenever in any case of felony the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the' grounds for such change of venue.”

In the instant case while the order of the trial judge does not follow the exact language of the statute in stating that a trial, alike fair and impartial to the accused and the State, could not be had in Walker County, it does state facts to support a conclusion that both the defendant and the State could get a fairer and better trial in Polk County than would be possible in Walker County. At any rate, the appellant introduced no facts to show that the trial judge abused his discretion in this respect and to overturn the presumption that he did his duty. It is our understanding that the revision upon appeal of such an order as was here made can only be had where it is shown that the rights of the accused have been materially prejudiced by the action of the court in changing the venue. See Rothschild v. State, 7 Tex.App. 519; Bohannon v. State, 14 Tex.App. 271; Henderson v. State, 104 Tex.Cr.R. 495, 506, 283 S.W. 497; Norwood v. State, 116 Tex.Cr.R. 283, 34 S.W.2d 590; Parrish v. State, 134 Tex.Cr.R. 545, 116 S.W.2d 706. Having introduced no facts to support his contention, the presumption obtains that the trial judge acted in accordance with the statute.

The defendant’s contention that the order made by the judge in Walker County was void, as he was not present in court at that time, is also without merit. It appears from the record that he was ill at the time. This question has been passed on before by this court. In Phipps v. State, 100 Tex.Cr.R. 607, 272 S.W. 209, this court held that in preliminary matters of this nature, occurring before the actual trial, it was not necessary that a defendant be present. See Rothschild v. State, 7 Tex.App. 519.

Appellant’s complaint because the record indicates that he neither entered into a recognizance nor was placed in jail in Walker County as directed by the order changing the venue from Walker County to Polk County, and that this order thus shows itself to be void, is untenable. The record does seem to indicate that appellant surrendered himself to the jurisdiction of the court in Polk County, but we do not think appellant can now be heard to complain that the order was void because it was not obeyed in these directory matters. Appellant relies in his contention on language appearing in the case of Harris v. State, 71 Tex.Cr.R. 463, 160 S.W. 447. That case, however, was explained and qualified in the case of Haley v. State, 88 Tex.Cr.R. 649, 228 S.W. 208, 210. It is made to appear in the Haley case that neither of these things are a condition precedent to the jurisdiction of the court trying the case. As stated by Judge Hawkins on motion for rehearing: “Presuming the order of the court changing the venue to be regular and for good cause, then to say that the execution or nonexecution of a recognizance would have anything to do with conferring a right to try him on the new forum' seems illogical, because that right already existed by virtue of the order, and the subsequent articles are directory as to how his presence in the new forum is assured.”

By bill of exceptions No. 10 appellant complains of the following remarks by a private prosecutor in his closing address before the jury: “I guarantee you Harry Diminge is one of the best officer witnesses I have ever seen.”

Diminge was one of the State’s witnesses, and appeared to be a peace officer. It was appellant’s contention that the deceased had a knife with which he cut appellant’s jacket at the time deceased was killed, and appellant’s jacket with numerous cuts therein was exhibited before the jury, and it was claimed that such cuts were in the jacket at the time appellant was arrested by the officers, among whom was Diminge, who testified, along with others who gave like testimony, that there were no cuts in such jacket at the time of appellant’s arrest.

There had not been any effort to impeach the witness Diminge, and of course no testimony relative to his excellence as a witness nor to his truthfulness was admissible. Upon an objection to this complained of statement the court promptly instructed the jury to disregard the same; however,- the appellant reserved a bill of exceptions to the making of the statement. It is not every objectionable statement not borne out by the record that will result in a reversal of a case. It will be observed herein that the prosecutor merely stated that- Diminge was one of the best officer witnesses he had ever seen, — not that he was the most truthful, not that his testimony was credible, and should be believed under oath, and it is not shown that such prosecutor claimed to know any more, nor saw any more, than the jury might have known or seen from their observation of this witness while on the stand. There is naught to show that this remark was not based upon the witness’ demeanor while on the stand, and we note that the trial court very promptly upon objection instructed the jury to disregard such remarks. We are cited to the Jones case, Jones v. State, 129 Tex.Cr.R. 620, 91 S.W.2d 341, 342, in which the prosecutor said to the jury in argument, speaking of two peace officer-witnesses for the State: “The men are officers of long years of experience and have rendered faithful service and are worthy of Belief; I have worked with them.”

In the Thomas case, Thomas v. State, 109 Tex.Cr.R. 578, 6 S.W.2d 118, the following language was used by the prosecutor: “I know George Norris [State’s witness], I had known him several years, and when he told me that he had bought intoxicating liquor from the defendant, I believed him and still believe him.”

This man Norris was the only State’s witness to the sale and this court held that such a statement was testimony relative to the witness’ character and truthfulness and was error. To the same effect are the objectionable remarks in the Parker case, Parker v. State, 124 Tex.Cr.R. 600, 64 S.W.2d 786, and the Thomas case, supra, and the Parker case were reversed because of such remarks.

There is a further bill of exceptions No. 3 to the remarks of the prosecuting attorney made in the closing argument herein, as follows: “Dolph Zackary has been as busy as a dirt dobber all day around this court house. He is a henchman of Joe Ed. Winfrey.”

Mr. Winfrey was an attorney for the appellant, and the trial court’s qualification to this bill shows that Zachary was a witness for the appellant “and had been present throughout the, trial of the case, being both in and out of the court room at recess time talking with counsel for the defendant and said witness being referred to in the argument of Mr. Foreman as having an interest in the case as shown by his activities. Upon objection being made to said argument the court instructed the jury to disregard the same, and not consider it for any purpose.”

The fact that Mr. Zachary had been as busy as a dirt dauber all day around the court house does not seem to us to be such a serious reflection on anyone that it could not be removed by the trial court’s prompt instruction to the jury. As to the latter part thereof, that is: “He is a henchman of Joe Ed. Winfrey,” it is necessary for us to go outside the definition of the word “henchman” in the dictionary in order to find any reflection on anyone in such statement. Mr. Webster in his International Dictionary says the word means “An attendant, a servant, a follower; now ebrefly used as a political cant term.” If such a term has any sinister meaning such is not found in this dictionary. Surely the statement that Zachary was a henchman of Mr, Winfrey did not operate to damage Zachary before the jury, nor did it discredit his testimony, for he gave none on the trial. That he was an attendant, a servant or follower .of Mr. Winfrey we do not think operated to Mr. Winfrey’s discredit. True it is that Mr. Winfrey was an attorney for appellant and actively engaged in the trial of this case, well known surely in that community as well as throughout that portion of the State, and a person of such known probity and honor that a mere reference to a person as his henchman could not have been such a serious reflection upon the.high character of Mr. Winfrey that same would militate against appellant to such an extent that it could not be removed by the trial court’s instruction to disregard the reference thereto. '

We are aware of the holding in the Kentucky case of Herald Publishing Co. et al. v. Feltner, 158 Ky. 35, 164 S.W. 370, by the Court of Appeals of that State wherein it was held that the publication of a statement that the plaintiff was a “henchman” of one Hargis, who was a person of notoriously bad character, a fugitive from justice, and an outcast, — was a libeling of the plaintiff Feltner by implying that Felt-ner was ready to do the work of this man Hargis, although unlawful. In that instance it was first necessary to connect the supposed “henchman” up with the Breathitt County feudist Hargis, and after such connection the offensive inference that was objected to applied to one who was denominated a “henchman” and not to the one whom he was supposed to be associated with as a henchman. It is also to be noticed that the phrase complained of must of necessity be connected with one of notoriously bad character, and instead we find such herein connected with a reputable attorney, engaged in the proper practice of his profession, and under the circumstances we see no reason to say that a statement that Zachary was an attendant, a servant, a follower of Mr. Winfrey, would shed any degree of odium upon either of them. We do not think such error is evidenced by such remarks that could not be removed by the trial court’s prompt instruction.

Appellant also complains of the court’s action in declining to sustain his application for a change of venue. This application was not supported by two com-purgators as required by law. Hence it might not be considered. He now contends that he interviewed a number of citizens of Polk County who told him they knew appellant could not get a fair and impartial trial in said county, but that they (the citizens) could not afford to verify the application because the deceased and his widow had too many influential friends and relatives in the .county. That he offered to make proof thereof, but the court declined to hear the proof. The bill fails to disclose such state of facts. If the facts existed as he now contends, he should have set them up in his motion and if he offered proof relative thereto and the court declined to hear the evidence, then it should have been brought forward by a proper bill of exceptions.

We have examined all further bills of exception and see no error reflected therein.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant reiterates his contention that the district court of Polk County was without jurisdiction to proceed with the trial. It is appellant’s position that the order of the district court of Walker County changing the venue to Polk County is void, in that it fails to state that the judge was of the-opinion that a trial, alike fair and impartial' to appellant and the state, could not be had' in Walker County. The change of venue to Polk County was upon the court’s own, motion. Article 560, C.C.P., reads as follows : “Whenever in any case of felony-the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, can not, from any-cause, be had in the county in which the-case is pending, he'may, upon his own motion, order a change of venue to any county-in his own, or in an adjoining district, stating in his order the grounds for such; change of venue.”

It does not appear, that appellant questioned the sufficiency of the order of transfer until he filed his motion for new trial:. It is true that he filed a written protest-against a trial in Polk County and embraced therein the order changing the venue-to such county. However, the reasons asserted by appellant in support of his contention that the case should not be tried ⅛ Polk County were that the transfer “was-, voidable, irregular, unfair, and against good practice, and against the public policy of' this State”; that the transfer was made-for the purpose of imposing an “extra and. added punishment of this defendant”'; that, such transfer was made because- the appellant was -ill at the time the case was set. for trial in Walker County and was, preparing to seek a continuance; that the action of the district judge of Walker County in transferring the case on his own motion, without attempting to get a jury was arbitrary. Appellant failed to point out in his; protest that the order changing the venue-embraced no statement that the judge of" the district court of Walker County was. satisfied that a trial, alike fair and impartial to appellant and to the state, could not be had in Walker County. As. already-pointed out, no specific contention was made-that the order of transfer failed to comply with the provisions of Article 560, supra, until the motion for new trial was filed and presented. The complaint came too late.

The order of transfer was not void, notwithstanding its failure to embrace a statement to the effect that the judge of Walker County was satisfied that a trial, alike fair and impartial to appellant and to the state, could not be had in Walker County. Baker v. State, 87 Tex.Cr.R. 213, 220 S.W. 326, 327. As said in Baker’s case: “The court having power granted by the Constitution to change the venue, its failure to observe the legislative regulations requiring that the reason for the change be embraced in the order would not vitiate the order, in the absence of an abuse of discretion, which, to receive attention on appeal, would have to appear in some authentic form, recognized by law, so that this court would know that there was an abuse of discretion. In the absence of some authentic information to the contrary, the presumption that the court did not transcend its authority obtains. * * * ” The order not being void, it follows that, under the circumstances reflected by the record, the district court of Polk County was not without jurisdiction to proceed with the trial. See Taylor v. State, 81 Tex.Cr.R. 347, 197 S.W. 196, 201.

Appellant reiterates his contention that the district court of Polk County was without jurisdiction because of the fact that the order of transfer failed to show the proper reasons for not changing the venue to one of the counties adjoining Walker County. It is observed that under Article 560, supra, when the venue is changed upon the court’s own motion the court is authorized to transfer the case to any county “in his own, or in an adjoining district.” If we comprehend the record, appellant failed to make the contention now under consideration until he filed and presented his motion for new trial. This was too late. Under the circumstances, the district court of Polk County was not without jurisdiction. See Taylor v. State, supra.

Appellant renews his contention that bill of exception No. 8 reflects reversible error. It is observed from the bill that appellant filed an application for a change of venue but failed to procure the affidavits of compurgators; that when the case was called for trial appellant offered to testify to the effect that he had talked to a number of citizens in an effort to obtain compurga-tors ; that these citizens had stated to him that they did not believe he could obtain a fair and impartial trial in Polk County but that they were unwilling to sign as compurgators in view of the prominence of deceased’s relatives living in Polk County. The court declined to permit appellant to give such testimony and apparently sustained the state’s exception to the application for a change of venue. Under the decisions of this court the bill of exception fails to reflect error. In Sanchez v. State, 90 Tex.Cr.R. 518, 236 S.W. 734, 736, this court said: “A motion to change the venue upon the ground of prejudice was prepared and sworn to by the appellant, but com-purgators were not obtainable. These were essential to require its consideration as an application upon the part of the appellant.” We quote from Gibson v. State, 53 Tex.Cr.R. 349, 110 S.W. 41, 47: “It has even been held that, where there was filed an affidavit alleging the existence of so great a prejudice in the county against him as to prevent a fair trial, but that persons could not be induced to make affidavit of such prejudice, and defendant asked for process for certain persons, residents of the county, who, affiant believed, would testify to the existence of such prejudice, the application did not comply with the statute. Mitchell v. State, 43 Tex. 512; Wall v. State, 18 Tex. [682] 683, 70 Am.Dec. 302. This question was fully considered in the case of Willis Macklin v. State (decided at the recent Dallas term) [53 Tex.Cr.R. 197] 109 S.W. 145, where we reached the same conclusion and made the same holding.”

After carefully considering all other complaints set forth in the motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing' is overruled.

PER CURIAM.

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


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    Ex parte NEWBERG.
    No. 21035.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied Oct. 30, 1940.
    Wallace B. Moore and Ivan Irwin, both of Dallas, for appellant.
    H. P. Kucera, City Atty., W. B. Pope, Asst. City Atty., and Leo Darley, Asst. Cr. Dist. Atty., all of Dallas, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Relator was charged by complaint in the Corporation Court of Dallas, Texas, with numerous violations of ordinance No. 2919, as afterwards amended by the passage of ordinance No. 2939, commonly called the Dance Hall Ordinance of Dallas. She sought release upon a writ of habeas corpus. before the judge of the County Criminal Court; failing this, she has appealed to this court.

In substance the dance hall ordinance of the City of Dallas, Texas, divides dance halls into four classes, to-wit, Class A, -Class B, Class C, and Class D. We are only concerned with Class A in this case as the other classes relate to private dances and dancing schools. The ordinance provides that all night clubs and cabarets, where food or beer or wine is served on the premises, including cafes and restaurants, where patrons are provided with a place to dance are Class A dance halls. With certain exemptions, which are hereinafter more specifically mentioned, all Class A dance halls must pay a license fee of $250 per year and must have in attendance at all times during a dance a special police officer of the City of Dallas, Texas, for which the operator of such dance hall must pay the sum of $5 to the Assessor and Collector of Taxes of the City of Dallas, Texas.

Relator attacks this amended, ordinance on many grounds. The first ground being directed to Section 8 of the original ordinance which provides that in all public dance halls coming under Class “A” there must be present at all times during any dance or ball therein given, and until thirty minutes after such dance closes, a special police officer who shall be detailed by the Chief of Police of Dallas for that purpose, and that the proprietor or licensee of such dance hall shall on the first day of the succeeding month pay into a special fund of the City of Dallas the sum of $5 per day that such dance is conducted, said sum to be paid by the dance hall operator, and kept in a special fund for the purpose of paying the salary of such police officer. In other words, the dance hall operator cannot operate unless there is present at such dance a special police officer of the City of Dallas, and such operator must pay in advance the sum of $5 per day for the services of such officer.

We are cited to no decisions of this State upholding such a charge. However, we do find decisions of other states in agreement with such a charge, and making same payable upon the part of the proprietor of a dance hall or theater. We also find decisions to the contrary.

That the City of Dallas, operating-under a Home Rule Charter, has the right to reasonably regulate public Dance Halls, we take it, is conceded by relator; and that a reasonable license fee may be charged therefor. The powers granted to Home Rule cities under the Constitution are broad, and governed only as to limitations by legislative enactment. We held in Le Gois v. State, 80 Tex.Cr.R. 356, 190 S.W. 724, 725, that: “The Legislature of a state has all power to enact laws, except as it may be inhibited by the Constitution of the state or nation. It does not have to look to the Constitution for a grant of power to enact laws, but only to see if it is inhibited from acting. And a city does not since the adoption of section 5 of article 11 longer have to look to the Legislature for a grant of power to act (this being given by the Constitution), but only look to acts of the Legislature to see if it has placed any limitations on the power to act granted by section 5 of article 11. If the Legislature has placed no limitations on the power of a city to act, and the provision is inconsistent with no provision of the Constitution or the general laws of the state, the power of the city is as general and broad as is the power of the Legislature to act. We no longer must look to the Legislature to grant to a city power to amend its charter or to insert therein any given provision, but we only look to the acts of the Legislature to see if .that body by any provision adopted has placed any limitations on the power of a city to act in the matter. If therein we find no limitation placed on the city to aménd its. charter in any given particular, and such provision is inconsistent with no provision of the Constitution and no general law of the state, the city has the authority to so amend its charter and adopt such provision without any grant of power further than that conferred by section 5 of article 11 of the Constitution. The authority and power is therein granted and conferred on the city by a higher power than the legislative body — the sovereign speaking through its written Constitution.”

Under the statute, Art. 1175, Secs. 22 and 23, R.C.S., this city has the power to regulate and .license dance halls; the contention of relator being that the classification of dance halls in this ordinance was unreasonable and arbitrary, and the amount of license fees exorbitant.

In the disposition made of this case it is only necessary at this point to say that we think that the city has the power to classify these places of public amusement into the classes here found, and to tax them for license purposes as set forth in' the ordinance. Relative to the exemption of halls with 750 seats from the attendance of a peace officer, it is not necessary for us to set forth any holding thereon in the light of what we are going to now say. 4

We are aware of the holding in the case of Tannenbaum v. Rehm, 152 Ala. 494, 44 So. 532, 11 L.R.A.,N.S., 700, 126 Am.St.Rep. 52; also the case of New Orleans v. Hop Lee, 104 La. 601, 29 So. 214, and also the case of Harrison v. Baltimore, 1 Gill, Md., 264; also the Connecticut case of Hartford v. Parsons, 87 Conn. 412, 87 A. 736, Am.Cas.1916A, 1182, as well as some few other jurisdictions that hold that a municipality has the right to demand that the owner of a theatre or other place of amusement provide for the presence of its policemen or firemen at such performances, and such municipality can compel the owner or operator of such place to pay the attending policeman or fireman his wage, which must however be a fair and reasonable one.

We are also aware that although there are not found any Texas cases on either side of this controversial question that has disturbed our Brethren of other states, we do find well-reasoned cases holding contrary to the above announced doctrine, as well as 1 Dillon on Mun.Corp., 4th ed., Sec. 398, as well as McQuillin on Mun. Ord., Sec. 188. We do find in Chicago v. Weber, 246 Ill. 304, 92 N.E. 859, 862, 34 L.R.A.,N.S., 306, 20 Ann.Cas. 359, the following: “In every building in the city where large numbers of people are employed or where the public go in crowds, the safety of those in the building would be promoted by having a member of the fire department there, and, if the discharge of the duty to the public who attend theaters may be charged to the owner, the same requirement may be made of the owner of every other building where the public are invited or attend in numbers. The city has power to establish a fire department, to erect engine houses, and provide fire engines and other implements for the prevention and extinguishment of fires; but that duty is a duty to the public. If there is power to charge the expenses of performing that public duty to the owner of a theatre, there is also power to do the same thing with respect to other owners, and the members of the fire department could be parceled out and stationed in private buildings, so that practically the whole expense of the fire department would be paid by individuals or corporations. If the city has authority to do that, it could accomplish the same result with policemen, who are in the direct exercise of the police power, and thgy might be stationed in every building where disorder or violation of the law might occur and the expense be charged to the owner. That the city cannot perform its duties to the public in that way is manifest.”

We also find practically the same holding in Waters v. Leech, 3 Ark. 110, and again in O’Neil v. Providence Amusement Co., 42 R.I. 479, 108 A. 887, 8 A.L.R. 1590, in which latter case it was held that the city had no power to prescribe’ the amount of wage to be paid to a fireman to be stationed in a theatre during theatrical performances therein.

While recognizing that this is a mooted matter, and that there are no cases reported in our State that we find in point, we are called upon to write hereon as of first impression in Texas.

It appears reasonable to us to say that in matters of policé protection, it being the one herein presented, cities possess the taxing power as well as the licensing power, with the proceeds of which it would seem to us that the duty would devolve upon such city to furnish needed police protection to all persons engaged in lawful occupations, and regardless of whether such occupations demanded much or little policing. That such is a public function, and should be offered to all alike, and the expense thereof borne by all alike from the public funds. To allow these expenses to be borne by private parties would, if carried to its final conclusion, result in the proprietor of a large store, where thousands of people might congregate, to be called upon to bear a substantial part of the city police salaries, or a portion of the city firemen’s salaries. Again, a populous neighborhood where a series of burglaries had been committed and a police patrol could be thrown in such a district and each resident thereof be called upon to bear his proportionate part of the salaries paid such police while on this patrol. Again, in the event of a disturbance, or an affray, could it not be said that no policeman will be sent to such scene unless a payment of say $5 is made in order to pay his salary for such day? Or again, in the event of a fire in some remote portion of the city, could it not be said that no firemen will be sent thereto unless pay for their services is satisfactorily arranged for, and in advance? To carry such reasoning to its final conclusion, the private citizenship might find all the city policemen, and firemen might have their salaries fastened upon those unfortunate enough to be engaged in some business regulated by the city authorities, thus relieving the municipality of one of its reasons for being called into existence as a portion of our political economy.

We think that Section. 8 of this ordinance, providing for the payment of $5 per day for a city policeman to be in attendance at any dance given -in Class “A” hall, offends against the Fourteenth Amendment to the Constitution of the United States, and infringes against the private right of contract, and that such Section 8 is void and of no force' and effect.

We also note that Section 13 of said ordinance provides that in the event any section of this ordinance should be held invalid by a proper court, then such holding shall not affect the remaining sections of such ordinance. We think Section 8 is separable, and its failure will not affect the remaining portions of such ordinance.

We find also that the complaint under which relator is held contains three other and further counts which state a legal accusation against her, and we therefore affirm the judgment of the lower court remanding relator to the custody of the Chief of Police of Dallas.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

We have examined the State’s motion for rehearing with interest, but are not persuaded that the conclusion reached in our original opinion was erroneous. To write further on the question involved would be only an elaboration of what was expressed heretofore. As there pointed out, the courts are at variance in different jurisdictions. We followed those whose reasoning most appealed to us.

The motion for rehearing is overruled.


author: LOONEY, Justice.

text:
    McKINNEY v. TEXAS LIFE INS. CO. et al.
    No. 13046.
    Court of Civil Appeals of Texas. Dallas.
    Aug. 3, 1940.
    Rehearing Denied Oct. 12, 1940.
    Ross Huffmaster, of Kaufman, for appellant.
    A. D. Mabray, of Waco, for appellees. .
   LOONEY, Justice.

This appeal is from an order, dissolving a temporary injunction. The material facts are these: On November 28, 1939, F. H. McCown recovered judgment in the Justice Court of Precinct No. 1, McLen-nan County, Texas, against J. D. McKinney, for the sum of $69.30. No appeal was prosecuted from the judgment. The suit was based upon a promissory note, executed by McKinney, payable to Mc-Cown, being the initial premium for a policy issued by Texas Life Insurance Company, insuring the life of McKinney in the sum of $1,000, McCown being- soliciting agent for the Insurance Company. In due time, McCown caused an execution to issue on the judgment; placed same in the hands of the sheriff of Kaufman County, to be levied upon property belonging to McKinney, subject to execution, and it also seems that, later, an alias was issued for the same purpose, and placed in the hands of the constable of Precinct No. 1 of Kaufman County, Texas.

In this situation, McKinney instituted the present proceedings against McCown, the Insurance Company, the Sheriff of Kaufman County, and the Constable of Precinct No. 1, seeking both temporary and permanent injunctive relief, alleging fraud in the procurement of the note sued upon, in that, he was induced to make application for the policy of insurance, to execute the note and accept the policy issued by the Company, because of certain misrepresentations, deceptive and fraudulent practices by McCown, the agent, praying that the policy be canceled (same being tendered in Court for that purpose), and that all claims, demands and charges against him, growing out of or incident to the transactions, be also canceled, and that, upon final hearing, the defendants be perpetually enjoined from exacting, demanding, or claiming anything from plaintiff on account or by reason of the transactions set forth, and that, pending final hearing, plaintiff be granted a temporary writ, enjoining defendants from, in any manner, levying upon any property belonging to the plaintiff, etc.

The court granted a temporary writ, as prayed; thereupon, defendant McCown filed a motion to dissolve, alleging as grounds therefor that,, under Art. 4656, R. C.S., and Subd. 17 of Art. 1995, the court below was without either venue of the cause, or jurisdiction of the subject matter; and furthermore that, under the facts alleged, the court was not authorized to grant the writ. The motion to dissolve was sustained, and the writ dissolved, from which, plaintiff appealed. The only question presented for our consideration is, whether the court abused its discretion.

We think the district court had jurisdiction of the subject matter. The requirements of Art. 4656, to the effect that, writs granted to stay proceedings in a suit, or execution on a judgment, shall be returned to the court rendering the judgment, or in which the suit is pending, controls both venue and jurisdiction of cases coming within the meaning of the statute. See Honea v. Graham, Tex.Civ.App., 66 S.W.2d 802; Friedrich v. Brand, Tex.Civ.App., 28 S.W.2d 279; Murph v. Bass, Tex.Civ.App., 276 S.W. 767; Long v. Martin, Tex.Civ.App., 260 S.W. 327-331, and Price & Beaird v. Eastland County, etc., Co., Tex.Civ.App., 211 S.W. 478-480. But Art. 4656 has no application whatever to justice courts, being applicable alone to district and county courts. The amount involved being below the jurisdiction of the county court, the district court alone had jurisdiction of the suit to enjoin enforcement of the justice court judgment (see Lyons Bros. Co. v. Corley, Tex.Civ.App., 135 S.W. 603), but the venue, in our opinion, is controlled by Subd. 17 of Art. 1995, R.C.S., providing that: “Suits to enjoin the execution of a judgment or to stay proceedings in any suit shall be brought in the county in which such judgment was rendered or in which such suit is pending.” See Foust v. Warren, Tex.Civ.App., 72 S.W. 404.

The grounds alleged by plaintiff for equitable relief should have been urged defensively, to the suit on the note in the justice court; this, plaintiff failed to do, but permitted judgment to go against him, and now seeks injunctive relief, as a means of appeal. This, he is forbidden to do. Thacher Medicine Co. v. Trammell, Tex.Civ.App., 279 S.W. 307, 309; Galveston etc., Co. v. Dowe, 70 Tex. 1, 6 S.W. 790; Pye v. Wyatt, Tex.Civ.App., 151 S.W. 1086; Hayes v. Bone, Tex.Civ.App., 69 S.W.2d 180. Plaintiff’s petition, in our opinion, failed to allege a cause of action, and for that reason alone, the court did not err in dissolving the writ theretofore erroneously issued. Friedrich v. Brand, Tex.Civ.App., 28 S.W.2d 279, 282; Hayes v. Bone, Tex.Civ.App., 69 S.W.2d 180.

The record discloses that, the defendant McCown filed a plea of privilege, seeking to have venue of the cause changed to the District Court of McLennan County. Plaintiff contends that, by filing the motion to dissolve the temporary writ, the defendant waived his plea of privilege. We do not think so. Although the question of venue is not properly before us for decision on this appeal, yet, in view of the contention of counsel, we express the opinion that, venue relates alone to the trial of a cause upon its merits, and not merely to interlocutory orders that have no relation to an • issue, either of law or of fact, going to the merits of the case. See Thacher Medicine Co. v. Trammell, Tex.Civ.App., 279 S.W. 307; Rex Refining Co. v. Morris, Tex.Civ.App., 72 S.W.2d 687, and authorities cited.

For reasons heretofore stated, we think the court acted properly in dissolving the temporary injunction, therefore, affirm the judgment.

Affirmed.


author: NORVELL, Justice.

text:
    HOLTERMANN et al. v. CONRAD.
    No. 10715.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 18, 1940.
    Rehearing Denied Oct. 21, 1940.
    J. Marvin Ericson, of Corpus Christi, for plaintiffs in error.
    Purl & Pearson and B. Ray Smith, all of Corpus Christi, for defendant in error.
   NORVELL, Justice.

The suit was originally filed by V. L. Conrad against defendant H. H. Holter-mann upon a promissory note. Conrad died while the case was pending in the trial court and Mary E. Conrad, as independent executrix of the last will and testament of V. L. Conrad, was substituted as party plaintiff.

The note declared upon is for the principal sum of $1,100, dated May 1, 1936, signed by the defendant and due thirty days after date. The defendant by his pleadings admitted the execution of the note, but sought to avoid liability thereon by. pleading under oath a failure of consideration, and specially alleging that on March 27, 1936, the Corpus Christi, San Angelo and Roswell Railroad had employed Conrad as a civil engineer to perform certain services in connection with the proposed location and construction of á proposed railroad from San Diego, Texas, to Freer, Texas, and that Conrad had failed to complete the work he contracted to do.

At the conclusion of the testimony the court peremptorily instructed the jury to return a verdict for the plaintiff, and judgment for the amount of the note, less an admitted credit, was entered against the defendant who has appealed. The parties will be designated as in the trial court.

Defendant’s contention in brief is, that the note of May 1, 1936, is to be construed as a part of the contract of March 27, 1936; that the contract thus evidenced is indivisible, in that it provided for certain services to be rendered by Conrad, which under the contract could not be completed until the final construction of the proposed road; that the railroad had never - been completed and therefore Conrad, or his legal representative, can not recover as the pleadings contain no quantum meruit count.

The contract, in one paragraph, provided that Conrad should survey a preliminary and finally located line for the proposed railway; take or prepare cross-sections, property ties, individual right-of-way descriptions from survey notes, and complete necessary plats and information for the location of drainage structures and the letting of construction contracts. It was necessary that these services be rendered prior to actual construction. The contract, in a separate paragraph, also provided that during construction Conrad should stake all lines and “perform all his duties that are necessary during the construction of a road-bed.”

The provision for compensation to Conrad was “five per cent of all construction costs as the money is spent, and for further consideration, the C. G, S. A. and R. Railroad agrees to pay the Engineer (Conrad) in current funds, as compensation for his services hereunder, Eleven Hundred ($1100.00) Dollars, which shall be paid as follows: Weeky installments of One Hundred Twenty-Five ($125.00) Dollars each, the first installment to begin on the day on which the actual survey starts. This latter consideration, namely, Eleven Hun-, dred ($1100.00) Dollars to be deducted from the gross 5% fee when final payment of said 5% is made.”

The contract also contained a provision that Conrad should give a bond in the sum of $1,100 for the completion of services to be performed by him prior to the start of' actual construction.

The weekly payments provided for in the contract were not paid and, as a result of Conrad’s demands, the defendant, who was president of the railroad, gave his note to Conrad “so the work would not stop.”

On August 12, 1936, W. T. Neilon, secretary-treasurer of the railroad company, released the bond for $1,100 given by Conrad in accordance with the terms of the contract, stating that the contract had been fully and satisfactorily completed.

The defendant’s contention under the facts of this record can not be sustained. Plaintiff’s cause of action is based upon a promissory note, and defendant was ¡not an accommodation maker thereof. Robertson v. City National Bank of Bowie, 120 Tex. 226, 36 S.W.2d 481. It was based upon a valid consideration and the burden is on defendant to show that the consideration has failed. Shaw v. McShane, Tex.Com.App., 50 S.W.2d 278; Newton v. Newton, 77 Tex. 508, 14 S.W. 157; Brown v. Weir, Tex.Civ.App., 293 S.W. 916.

Even if the contract be considered in connection with the note as contended for by defendant, the note and the circumstances surrounding its execution show that it was executed subsequent to the date-of the contract between the railroad company and Conrad, and that the parties at the time treated the contract as divisible-insofar as the defendant was concerned. He was not obligated personally upon the original contract. He was, however, interested in having the work go ahead, and agreed that if Conrad would go ahead he-would pay him the $1,100 item provided for in the original contract. The evidence indicates that the defendant and the railroad' company considered this $1,100 as being the sum to be paid for preliminary work prior to construction. The release of Conrad’s bond indicates that this work was completed. However that may be, there is no evidence under proper pleadings that Conrad failed to go ahead with his work under his agreement with defendant made at the time the • note in question was- executed. It was not pleaded that he failed to perform any part of the work preliminary to-construction, or that he failed to work any particular week. This being true, under our construction of the contract as it existed after the transaction of May 1, 1936, which gave rise to the note sued upon, there was no issue of failure of consideration to be submitted to the jury, and the trial court was correct in instructing the-jury to find for the plaintiff, and its judgment is accordingly affirmed.


author: ALEXANDER, Justice.

text:
    REID v. RAMSEY.
    No. 2250.
    Court of Civil Appeals of Texas. Waco.
    Oct. 10, 1940.
    J. S. Simkins and Claude L. Milburn, both of Corsicana, for appellant.
    J. C. Jacobs, of Corsicana, for appellee.
   ALEXANDER, Justice.

• This suit originated in the Justice Court. It is a suit on two promissory notes and to foreclose a chattel mortgage lien. Appellant raises the contention that the amount sued for was above the jurisdiction of the Justice Court and, as a result, the County Court, from which the appeal is prosecuted to this court, was without jurisdiction.

The petition set out the notes with the amounts and dates of payments that had been made thereon and prayed for judgment for balance of principal, interest and attorney’s fees. By calculating the interest that had accumulated on the notes to the date of the payments and applying the payments first to the discharge of the accumulated interest as we are required to do, in the absence of an intention to the contrary, J. I. Case Co. v. Laubhan, Tex.Civ.App., 64 S.W.2d 1079, and the balance to the discharge of principal, and then adding ten per cent to the balance as attorney’s fees as prayed for by the plaintiff, the amount sued for exceeded $200. The amount sued for was therefore above the jurisdiction of the Justice Court and, as a consequence, the County Court from which the appeal was prosecuted was without jurisdiction. 26 Tex. Jur. 876; Childress Oil Co. v. Wood, 111 Tex. 165, 230 S.W. 143.

The judgment of the trial court is reversed and the suit dismissed.


author: JACKSON, Chief Justice.

text:
    LOVE v. SPUR INDEPENDENT SCHOOL DIST. et al.
    No. 5199.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1940.

      M. F. Billingsley, of Munday, for plaintiff in error.
    Edgar Hutchins, of Greenville, for defendant in error State of Texas.
    O. B. Ratliff, of Spur, for defendants in error City of Spur and Spur Independent School Dist.
   JACKSON, Chief Justice.

The State of Texas as plaintiff instituted this suit in the District Court of Dickens County to recover against the defendant C. L. Love for the State and said county certain delinquent ad valorem taxes, interest, penalties and costs claimed to have been properly levied and assessed and due the State and County on Lots Nos. 3 and 4 in Block 42 in the town of Spur for the years 1930 to 1936, inclusive. The petition of the plaintiff sets out in detail the delinquent tax, interest, penalty and cost as disclosed by the delinquent tax records of the county which so far as are necessary to this appeal are as follows:

Lot Block Town Years Total Taxes

3 &-4 42 Spur 1930 $ 37.00

1931 48.03

1932 63.75

1933 46.14

1934 44.02

1935 37.98

1936 37.77

Total Taxes. $314.69

Penalty & Interest 89.18

Cost . 3.00

Grand Total. $406.87

The suit was filed in accordance, with the requirements and provision of article 7345b of Vernon’s Civil Statutes of the State of Texas Annotated, and the plaintiff impleaded the City of Spur, a municipal corporation, which intervened in the suit, and by sufficient pleadings, sought a judgment against C. L. Love for the delinquent taxes, interest, penalties and cost alleged to have been properly levied and assessed against the lots above described for the years 1928 to 1938, inclusive, by the City.

It set out in detail the delinquent tax record of the City involved, which so far as required to a consideration of this appeal is as follows:

The Spur Independent School District, a municipal corporation, was also implead-ed by the plaintiff, intervened in the case and asked for a judgment against C. L. Love for the delinquent taxes, interest, penalties and cost which it claimed to have properly levied and assessed against the lots heretofore described for the years 1929 to 1937 inclusive. The school district pleaded in detail the delinquent taxes disclosed by the delinquent tax record of the district and for the purpose of this appeal we set out the following:

The plaintiff and each of the interveners under sufficient allegations ask a foreclosure of their respective tax liens which the law creates against the property to secure the payment of the taxes.

On September 8, 1939, the case was called for' trial and the court found that C. L. Love, though duly and legally cited, failed' to appear and answer but wholly made default. The cause proceeded to trial, and on the evidence submitted the court found that the City of Spur and the Spur Independent School District were each impleaded and each intervened in the suit, and he adjudged that the State and County were entitled to recover taxes, penalty, interest and cost in the sum of $414.73. The’City of Spur was adjudged taxes for $365.74, penalty, $36.57, interest, $131.78, cost, $4, or a total of $538.09. The Spur Independent School District recovered a judgment for taxes in the amount of $333.-75, penalty, $28.27, interest, $107.02, cost, $9, or a total judgment in the sum of $478.-04. The interest was calculated to the date of the judgment.

C. L. Love, who will hereinafter be called defendant, by a writ of error prosecuted an appeal from these judgments to this court.

The defendant challenges as error the judgments of the court contending that they permit a recovery of penalties in excess of 8% on the taxes in the judgments for the City of Spur and the Spur Independent School Districts.

Neither the plaintiff nor either of the intervenors favored this court with a brief.

Article 7336, Revised Civil Statutes of 1925, provided in effect that a penalty of 10% on the entire amount of delinquent taxes should accrue and be collected as penalty. Thereafter in 1934 article 7336 was amended by the Fourth Called Session of the Forty-Third Legislature, c. 10, § 2, Vernon’s Ann. Civ. St, art. 7336, and reduced the penalty on delinquent taxes to 8%, but the amendment became effective ninety days after the date of the adjournment of said session November 10, 1934/ Article 7336d provides that the State or any county or other subdivision of the State “except such cities, towns, villages, special school districts and independent school districts which do not adopt the provisions of this section” shall collect penalty on a different basis but this last article has no application to the case under consideration for the reason the record fails to show that its provisions were adopted by the City of Spur or the Spur Independent School District. Therefore the penalty would be ’ calculated according to article 7336 and article 7336 as amended by the Forty-third Legislature.

It will be noted from the delinquent tax record of the City heretofore set out that it charged 10% penalty for the years 1928 to 1938, inclusive, when under the law it should, have charged only 8% penalty for the years 1935 to 1938, inclusive, which would have reduced the penalty due the City by $1.97.

The judgment in favor of the City for $1.97 penalty in excess of the legal amount is a mistake which in our opinion comes under the doctrine of de minimis and does not require a reversal or modification of the judgment. Texas & N. O. R. Co. v. Stumberg, Tex.Civ.App., 115 S.W. 2d 1126; Lewis v. Lewis, Tex.Civ.App., 125 S.W.2d 375; Wichita Falls & Oklahoma Ry. Co. et al. v. Pepper, Tex.Civ.App., 101 S.W.2d 365. We also note that in 1930 the Spur Independent School District charged a penalty of but $2.40 on delinquent taxes of $48. This was to the defendant’s advantage in the sum of $2.40.

An examination of the schedule of the delinquent tax record of the Spur Independent School District heretofore set out discloses that the School District charged 10% penalty up to and including 1933 but' only 8% penalty thereafter and the defendant is entitled to no deduction therefrom.

The defendant complains of the failure of the court to find and announce in his judgment the reasonable “fair value” of the property on which taxes were due for the years 1935 and all prior years as required by article 7345b, section 5. The defendant did not appear in the trial court, did not attack the assessed value of the property, did not furnish a statement of facts, nor does he contend in this court that his property was not assessed at a “fair value”. The statute provides that the burden of proof shall be on the owner of delinquent property to establish the “fair value” as provided therein.

In Burson v. City of Silverton, Tex.Civ.App., 138 S.W.2d 921, this court in an opinion by Associate Justice Folley determined this question in principle against the defendant’s contention.

The defendant by proper assignments challenges the jurisdiction of the District Court to foreclose a tax lien on real estate since such action is void because repugnant to and inconsistent with Article 8, Section 13 of the Constitution of the State of Texas, Vernon’s Ann. St.

In State Mortgage Corporation v. State, Tex.Com.App., 17 S.W.2d 801, the Commission of Appeals says: “Summary procedure provided or forecasted in the Constitution (section 15, art. 8) does not preclude enforcement of the lien through user of equity jurisdiction.” Citing authorities. This seems to be conclusive. See also Newman v. City of El Paso. Tex.Civ.App., 77 S.W.2d 721.

The judgment is affirmed.


author: DUNKLIN, Chief Justice.

text:
    FIRESTONE v. HALL, District Judge, et al.
    No. 14212.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 27, 1940.
    O. O. Franklin, of San Angelo, for relator.
    McDonald & Anderson, Bullington, Humphrey & Humphrey, Frank Ikard, Ralph P. Dickson, and James Prothro, all of Wichita Falls, and Houston McMurry, of Henrietta, for appellee.
   DUNKLIN, Chief Justice.

Mrs. C. W. Firestone, a feme sole, has presented to this court her application for leave to file her petition for a writ of mandamus, to compel Honorable Earl P. Hall, Judge of the District Court of Clay County, Texas, to enter a judgment in her favor against Tom Firestone and twelve of the heirs of Lucinda Firestone, deceased, áll of whom were made parties defendant to the application for leave to file. The petition for writ of mandamus is attached to the application to file, and the right asserted for that relief is predicated upon the proceedings in Cause No. 6313 in the District Court of Clay County, Texas, instituted by Carman Firestone Sims and eleven others, as heirs of Lucinda Firestone, deceased, against Tom Firestone, to set aside two certain deeds of conveyance to the mineral interest in 200 acres of land in Clay County, executed by Lucinda Firestone, as grantor, in favor of defendant, Tom Firestone, dated September 5, 1938, on three grounds: First, because said Lucinda Firestone was of unsound mind when the deed was executed; second, on the ground of undue influence exerted upon her by Tom Firestone; and, third, because no valuable consideration passed to said grantor for said conveyances.

It was further alleged by plaintiffs in their suit that oil had -been discovered in the land, having a value in excess of $100,-000, and all of the rents, revenues and royalties from the land had been collected and appropriated by Tom Firestone for his own use and benefit, in denial of any rights in the plaintiffs to participate therein.

The defendant, Tom Firestone, filed an answer in that suit. He specially denied that Lucinda Firestone was of unsound mind at the time of the execution of her conveyance to him; he also denied that there was a want of consideration for the execution of the deed, coupled with the further denial of the exercise of any undue influence upon her, inducing its execution. He further alleged that in 1930 one Warren A. Boger executed his deed of conveyance to Lucinda Firestone to the mineral interest in the 200 acres, in satisfaction of an indebtedness he then owed to her, and on September 5, 1938, Lucinda Firestone, now deceased, conveyed to him, the defendant Tom Firestone, the same interest.

Tom Firestone also filed a cross action in trespass to try title against all the plaintiffs in the suit, and all other heirs of Lucinda Firestone, and also against W. A. Boger and his minor children, who are also grandchildren of Lucinda Firestone:

Further allegations were that W. A. Boger is now of unsound mind. A guardian ad litem was appointed to represent his interest and the interest of his minor children.

John Firestone, of Harris County, John S. Firestone, of Clay County, Lewis Firestone and C. W. Firestone, former husband of the plaintiff in the petition for mandamus, were all made parties defendant to that cross action, all of whom filed disclaimers of any right, title or interest in the land in controversy.

W. A. Boger, through his attorney and guardian ad litem, filed a plea of not guilty and also specially alleged that at the time of his conveyance of the mineral interest in the land to Lucinda Firestone, on December 18, 1930, he’ was the owner and in lawful possession of the premises, as against all other parties to the suit. In the alternative, he alleged that at the time he executed the deed of conveyance to Lucinda Firestone, he was of unsound mind, for which that deed should be held for naught. Following those pleadings, he alleged that on March 16, 1938, Lucinda Firestone had recovered judgment in trespass to try title against him and his minor children, in the District Court of Clay County, quieting title in Lucinda Firestone to the mineral interest in the land in controversy, as against any claim of interest by W. A. Boger or his minor children, but that said judgment was procured by fraud, and was therefore without force or effect.

The relator, Mrs. C. W. Firestone, is the widow of C. W. Firestone, who died during the pendency of the suit, and at the request of Tom Firestone she was also made a party defendant to Tom Firestone’s cross action in trespass to try title. After she was thus made a party, she filed a plea of not guilty to that cross action and in addition thereto a plea for affirmative relief and cross action, in which she claimed an interest in the minerals upon the theory of resulting trust, based upon allegations that at the time the property was conveyed to Lucinda Firestone by W. A. Boger, on December 18, 1930, she was the owner in her own separate right of the promissory note executed by W. A. Boger and his wife, Helen Boger, and that W. A. Boger executed the deed to Lucinda Firestone in consideration of the cancellation of that note owned by relator, and other .notes owing by said Boger to Lucinda Firestone; the resulting trust so claimed being based upon the allegations that the surrender of relator’s note against Boger was a part of the consideration paid by him to Lucinda Firestone as purchase money for the property, and that Tom Firestone and all the other heirs of Lucinda Firestone, now deceased, took any and all interest claimed by them,' chargeable with that trust, which was never repudiated by Lucinda Firestone.

The relator, Mrs. C. W. Firestone, further alleged that on August 31, 1938, Lucinda Firestone executed a deed of conveyance to the property in controversy, which was the same property which she had acquired from W. A. Boger, which deed had been duly filed for record in the Deed Records of Clay County, but that the said conveyance did not affect the rights of Mrs. C. W. Firestone owned by her by reason of the resulting trust in her favor already alleged, notwithstanding the fact that after such conveyance Tom Firestone repudiated said trust.

Following those allegations, Mrs. C. W. Firestone sought an accounting by Tom Firestone for the royalties and revenues collected by him after oil had been discovered on the property, and for recovery of a personal judgment for a large portion of those revenues, which, according to allegations in the pleading, Tom Firestone had converted to his own use, in denial of relator’s claim of right to any interest therein.

In relator’s application for the writ of mandamus, the purport of, the pleadings above referred to are alleged, without setting them out in haec verba, followed with further allegations that upon those pleadings and the evidence introduced, the case was submitted to a jury on special issues, the substance of which, together with the jury’s findings thereon, were as follows:

Issue No. 1. On September S, 1938, when Mrs. Lucinda Firestone executed to Tom Firestone a deed with warranty of title to the mineral interest in the land in controversy, she had mental capacity to execute the same.

Issue No. 2. On December 18, 1930, when Warren A. Boger executed a like deed to Mrs. Lucinda Firestone to the same property, he had sufficient mental capacity to execute the same.

Special Issue No. 3 was as follows: “Do you find from a preponderance of the evidence that the making and execution of the warranty deeds dated August 30th, 1938, from Lucinda Firestone to Tom Firestone were procured by undue influence, as undue influence has been defined above, on the part of Tom Firestone or Mrs. Lou Firestone?” The jury made no finding on that issue because of their inability to agree upon the same.

Special Issue No. 4. “Do you find from a preponderance of the evidence that C. W. (Pat) Firestone made a gift of the $1050.00 note dated June 1, 1921, to his wife, Mrs. C. W. (Pat) Firestone a few days after they were married on March 22, 1922? (Answer ‘Yes’ or ‘No’). Answer: Yes.”

Special Issue No. 5. “Do you find from a preponderance of the evidence that the $1050.00 note dated June 1, 1921, signed by Helen and W. A. Boger, payable to Corwin Firestone, was not paid by the Bogers prior to 1925 ? (Answer ‘It was not paid’ or ‘It was paid’, as you find the facts to be. Answer: It was not paid.”

Special Issue No. 6. “Do you find from a preponderance of the evidence that th $1050.00 note dated June 1, 1921, signed by Helen and W. A. Boger, payable to Corwin Firestone, was used by Mrs. Lou Firestone as a part of the consideration for the mineral interest in the 200 acres in .Clay. County, Texas? (Answer ‘Yes’ or‘No’). Answer: Yes.”

Special Issue No. 7. “Do you find from a preponderance of the evidence that Mrs. C. W. (Pat) Firestone was the owner of said $1050.00 note on December 18th, 1930 ? (Answer ‘Yes’ or ‘No’). Answer: Yes.”

Special Issue No. 8. “Do you find from a preponderance of the evidence that the $1050.00 note, dated June 1, 1921, signed by Helen and W. A. Boger, payable to Corwin Firestone, was used on December 18th, 1930, by Mrs. Lou Firestone as a part of the consideration for the mineral interest in the 200 acres from W. A. Boger, with the knowledge and consent of Mrs. C. W. (Pat) Firestone? (Answer ‘Yes’ or ‘No’). Answer: Yes.”

Special Issue No. 9. “Do you find from a preponderance of the evidence that at the time of the execution and delivery of the warranty deed from W. A. Boger to Mrs. Lou Firestone, on December 18, 1930, to the mineral interest 'to the 200 acres of land, that Mrs. Lou Firestone agreed with Mrs. Pat Firestone that she would hold in trust for her 21/67ths of the title to said minerals? (Answer ‘Yes’ or ‘No’). Answer: Yes.”

Special Issue No. 10. “Do you find from a preponderance of the evidence that Mrs. Lou Firestone, on December 18, 1930, recognized the ownership of Mrs. C. W. (Pat) Firestone, in 21/67ths of the mineral interest in the 200 acres of land? (Answer ‘Yes’ or ‘No’). Answer: Yes.”

Special Issue No. 11. “Do you find from a preponderance of the evidence that Mrs. Lou Firestone thereafter repudiated the trust interest of Mrs. C. W. Firestone (if you have found that Mrs. C. W. (Pat) Firestone has any interest in and to said property) ? Answer ‘Yes’ or ‘No’. Answer : No.”

After the return of that verdict, the plaintiffs in that suit filed a motion for the court to enter an order declaring a mistrial as to plaintiff’s petition, and order a retrial. That motion was made by the attorney for the plaintiffs, who also, at the same time, as attorney for Mrs. C. W. Firestone, filed a motion for judgment in her favor against Tom Firestone and each and all of the plaintiffs and cross defendants, for 21/67ths interest in and to the mineral interest, and 21/67ths of all- the rents, royalties and revenues claimed by her in her pleadings against Tom Firestone, setting out in her motion the findings of the jury upon the special issues above set out.

Counsel who filed both those motions has filed here his verified statement that his action in filing both was consented to and approved by both plaintiffs and relator. However, that explanation does hot change the legal effect of those motions.

Thereafter, on July 12, 1940, Judge Earl P. Hall, judge presiding, entered this judgment:

"Carman Firestone Sims et al. v. Tom Firestone. In the 97th District Court of Clay County, Texas, July 12th, A. D. 1940. Judgment.

“This the 12th day of July, A. D. 1940, in the above entitled and numbered cause, came on to be considered by the court the jury’s findings in said case, and after having examined the same the court finds that the jury did not answer all the pertinent questions propounded to it by the court, and that the same results in a mistrial for the reason that all the parties to the suit are interested in the same tract of land and that only one fina! judgment can be entered in such cases.

“It is therefore ordered, adjudged and decreed by the court that the jury’s findings result in a mistrial, and all parties are placed in status quo.

“Earl P. jHall, Judge Presiding.”

No statement of the evidence introduced on the trial of that case is shown in relator’s petition for the writ of mandamus.

The petition for mandamus presented here is to compel the trial judge to render judgment in favor of Mrs. C. W. Firestone against plaintiffs in that suit and all other parties thereto for an undivided 21/67ths interest in the mineral rights in controversy, and for personal judgment against Tom Firestone for $5,065.41, on account for revenues collected by him, accruing from development of the property for oil production. In support of the petition, relator-has cited Art. 7386, Rev.Civ.St., reading: “Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.”

Also this announcement by our Supreme Court, in Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531: “In an action of trespass to try title against several defendants, each claiming a separate part of the land * * *, there may be more than one final judgment. It would follow that the fate of the judgment in favor of one or more of the defendants is not dependent upon the result of a motion for new trial, or to vacate the judgment made by the other defendants.”

Also several other authorities of like import, including Louisiana & Texas Lumber Co. v. Southern Pine Lumber Co., Tex. Civ.App., 216 S.W. 281, error refused; State v. Dayton Lumber Co., Tex.Civ.App., 164 S.W. 48; Cotton v. Coit, 88 Tex. 414, 31 S.W. 1061; Kansas City, M. & O. Ry. Co. v. Cave, Tex.Civ.App., 174 S.W. 872; 25 Tex.Jur., p. 467, and decisions there cited.

Those decisions have proper place in appeals from final judgments in the trial court, but they have no application to this proceeding for the writ of mandamus sought.

In the first place, it was within the discretion of the trial judge to order a mistrial; s secondly, the order of mistrial was interlocutory, from which no appeal would lie, and was made long before this application for the writ of mandamus was presented here. And this attempt to require the trial judge to vacate the order already made setting aside the verdict of the jury, and render final judgment in favor of the relator, is forbidden by the familiar rule announced in 28 Tex.Jur., para. 32, p. 573, supported by numerous decisions cited: “Mandamus is not an appropriate proceeding for reviewing the action of a trial court. On the contrary, it is well settled that the writ cannot take the place, or be used to perform the office, of an appeal or writ of error, particularly when the court from which it is sought has no appellate or revisory control over the court against which relief is asked. And generally mandamus is not the proper remedy by which to correct or reverse erroneous rulings or judgments of an inferior tribunal, although in certain cases it may issue to compel an inferior court or judge to vacate or set aside a void order or judgment.”

Moreover, even on appeal from a final judgment denying relator the relief sought, in the absence of a statement of facts, it could not be said that reversible error was shown, in view of certain special defenses pleaded by plaintiffs and Tom Firestone, such as pleas of limitation to the enforcement of the parol trust claimed by relator in the property;' amount realized by Tom Firestone from operation of the lease for oil, and amount of offsets due him for expenses incurred, etc.; none of which was determined by the jury. Neither did relator in her application for the writ of mandamus allege that those defenses were determined by the jury or by the court. Nor did she negative the finding by the court that the jury did not answer all the pertinent questions propounded to it by the court and that all the parties to the suit are interested in the land in controversy. Watkins v. Huff, Tex.Civ.App., 63 S.W. 922; Id., 94 Tex. 631, 64 S.W. 682; Johnson v. Elliott, Tex.Civ.App., 168 S.W. 968, writ refused; City of El Paso v. Carroll, Tex.Civ.App., 108 S.W.2d 251, writ refused; Paschall v. Renshaw, Tex.Civ.App., 142 S.W.2d 717.

Accordingly, the relator is denied permission to file her application for the writ of mandamus sought.


text:
    TEXAS COMPENSATION INS. CO. v. ZACHRY.
    No. 2246.
    Court of Civil Appeals of Texas. Waco.
    Oct. 3, 1940.
    Rehearing Denied Oct. 24, 1940.
    John H. Bickett, Jr., and C. M. Means, both of Dallas, and Sam H. Allred, of Hillsboro, for appellant.
    Scott & Wilson and W. M. Zachry, all of Waco, for appellee.
   ALEXANDER, Justice.

This is a workman’s compensation case. The employee alleged that while he was digging with a pick, his right arm jerked and snapped, and, as a result, the median epicondyle of the right humerus was disunited from the rest of the bone. In other words, a portion of the bone of the upper arm at the elbow to which the muscles of the lower arm were attached was torn loose. He alleged that it was necessary to have an operation on the arm to replace the fractured portion of the bone; that as a result of the operation the nerves of the arm became and are now impinged, his entire nervous system is shocked and impaired, he has continued to lose weight and is now suffering from a low grade infection, all of which causes such pain throughout his body as to render him wholly incapable of work. A trial before a jury resulted in judgment for total and permanent disability. The insurance company has appealed.

There was some evidence tending to show that the employee had suffered a somewhat similar injury on a former occasion. Appellant’s 'first proposition raises the contention that the trial court erred in not submitting to the jury an issue as to the effect of the former injury upon his present condition. The record discloses that no such issue was requested by the appellant, and, for that reason, no error is presented on account of the failure to submit such an issue.

The jury, in answer to issues Nos. 1 to 11, found that the employee received an injury while in the course of his employment which resulted in his incapacity to work and that such incapacity was not partial but was total and permanent. Special Issues Nos. 14 to 17, inclusive, as submitted to the jury, and their answers thereto, were as follows:

“Special Issue No. 14: Do you find from a preponderance of the evidence, if any, that the injury, if any, sustained by plaintiff, W. B. Zachry, on December 2nd, 1937, was not confined solely to his right arm?

“Answer ‘It was not confined solely to his right arm,’ or ‘It was confined solely to his right arm.’ ”

To which the jury answered: “It was not confined solely to his right arm.”

“If you have answered the -foregoing issue that ‘It was confined solely to his right-arm/ and in that event only you will answer the following issue, .otherwise you need not answer same.”

“Special Issue No. IS: Do you find from a preponderance of the evidence, if any, that the injury, if any, to plaintiff’s right arm, affected parts of his body other than his said arm? Answer ‘Yes’ or ‘No.’”

To which the jury did not answer.

“If you have answered Special Issue No. IS ‘Yes’ and in that event only you will answer Special Issue No. 16, otherwise you need not answer the same.”

“Special Issue No. 16: Do you find from a preponderance of the evidence, if any, that said injury, if any, to plaintiff’s right arm, together with effects, if any, of said injury, if any, on parts of his body other than his right arm, have caused plaintiff to suffer total incapacity to labor ? Answer ‘Yes’ or ‘No.’”

To which the jury answered “Yes.”

“Special Issue No. 17: Do you find from a preponderance of the evidence, if any, that said total incapacity to work, if any, caused by the injury to plaintiff’s right arm, together with effects, if any, of said injury on parts of his body other than his right arm, is permanent? Anwer ‘Yes’ or ‘No/ ”

To which the jury answered “Yes.”

Appellant contends that since the jury, in keeping with the court’s charge, did not answer issue No. 15, that is as to whether the injury to the employee’s arm affected other portions of his body, the verdict was insufficient to support the judgment of total disability. Of course, if the injury was confined solely to the employee’s arm- and did not affect other portions of his body, he could not recover for total disability, even though it resulted in the total loss of the use of his arm. However, we believe that even though the jury did not answer issue No. 15, there were sufficient findings to show total disability within the statute. The jury, in answer to issue No. 5, found that the injury sustained by the employee on the occasion in question “caused total incapacity to work, as that term has been herein defined, on the part of W. B. Zachry.” In answer to issue No. 14, the jury found that the injury was not confined solely to his right arm. If this last finding was correct, then the injury must necessarily have affected other portions of his body. In other words, if the injury was not confined -solely to his right arm, it must have affected other parts of his body, and the failure of the jury to answer issue No. 15, as to whether it affected other parts of his body, became immaterial. There was ample evidence to support the jury’s finding that the injury was not confined solely to the arm. The appellant did not object to the form of the submission of the issues, nor did it object to the court receiving the verdict without an answer to issue No. 15. Under the circumstances, we think there was a sufficient submission of the controlling issues in this case.

We have considered all other assignments and find no reversible error.

The judgment of the trial court is affirmed.