author: SMITH, Chief Justice.

text:
    HOPKINS v. GUNTER HOTEL CORPORATION.
    No. 10849.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 19, 1941.
    Schlesinger, Schlesinger & Goodstein and Charles J. Lieck, all of San Antonio, for appellant.
    Brooks, Napier, Brown & Matthews and Terrell, Davis, Hall & Clemens, all of San Antonio, for appellee.
   SMITH, Chief Justice.

Hopkins sued the Hotel Corporation for damages for injuries sustained by Mrs. Hopkins as a result of alleged poisonous food eaten by her while dining at the hotel restaurant. The jury found in favor of Hopkins on all issues submitted to them, inchtding findings for $120 for physical and mental pain and suffering, and for $472, expenses incurred on account of Mrs. Hopkins’ illness. Judgment was rendered in favor of Hopkins for the sum of the two amounts and he has appealed.

Plaintiff contends, in his first eight assignments of error, that the verdict for $120, for mental and physical pain and suffering, is “contrary to the overwhelming preponderance of the evidence,” is so “grossly inadequate as to shock the conscience of a reasonably prudent person,” and “shows that it is not based upon the evidence admitted under the rulings of the court.” Plaintiff’s counsel has so very forcefully presented these contentions that, at first impression, it appears that the jury’s allowances for damages for suffering and for expenses are so out of proportion as to suggest a distortion of balance, and a miscarriage of reasoning either against the ' one or for the other element of compensation, thereby bringing the case within the category of Boultinghouse v. Thompson, Tex.Civ.App., 291 S.W. 573, and Evers v. Langerhans, Tex.Civ.App., 122 S.W.2d 208. But a closer examination of the record must dispel the momentary distrust of the verdict. For the evidence was such as to warrant the jury in believing that Mrs. Hopkins’ illness was produced, or at least aggravated into its serious phases, by prior illnesses, disease and suffering, for which defendant could not be responsible or liable. The evidence was such as to give the jury a wide discretion in determining the issues of damage -and causal relation, and this Court has not the power or insight to analyze and speculate upon the processes by which the jury arrived at their conclusions. We cannot say the evidence did not warrant their verdict, or any phase of it. We overrule plaintiff’s first through eighth assignments of error.

Plaintiff sought to elicit separately from Mr. and Mrs. Hopkins the statements, which they would have made, if permitted, to the effect that they did not of their own personal knowledge know of anything other than the alleged poisonous food that could have caused Mrs. Hopkins’ illness of which they complain in this suit. This testimony was excluded by the court upon defendant’s objection, in effect, that it called for a conclusion of the witnesses, who were not qualified to so testify. It is obvious that the exclusion of this testimony resulted in no injury to plaintiff, for it could have had no proper effect other than to induce a finding that .the objectionable food caused Mrs. Hopkins’ illness, and the jury answered that very issue in plaintiff’s favor anyhow. We overrule plaintiff’s ninth through twelfth assignments of error.-

In his oral argument one of defendant’s counsel stated to the jury that ■plaintiff “had refused to bring Dr. Nixon in to testify in the case,” as stated in plaintiff’s thirteenth assignment of error, and the same counsel argued that “the doctors who testified for the defendant in the case were forced to come in and testify against their will,” as stated in plaintiff’s fourteenth assignment of error. Plaintiff’s complaints must be restricted to the quoted statements from his assignment of error. Plaintiff complains of this argument as having been materially prejudicial to his case. Even if the argument could be regarded as of a materially harmful nature, we are unable to say from the record as presented to this Court that it was not justified by the record, or provoked by the circumstances of the case. We overrule the assignments.

The judgment is affirmed.


source: Caselaw Access Project

author: NORVELL, Justice.

license: Public Domain

text:
    PERALES v. FLORES.
    No. 10852.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1941.
    Rehearing Denied Feb. 19, 1941.

      Schlesinger, Schlesinger & Goodstein, of San Antonio, for appellant.
    E. P. Lipscomb, of San Antonio, for ap-pellee.
   NORVELL, Justice.

This is an action of trespass to try title brought by appellant, Pedro Perales, administrator of the estate of Florencio Per-ales, deceased, against the appellee, Mary Flores, for the recovery of certain real property situated in Bexar County, Texas. The property stands in the name of Mary Flores and she claims the same as the surviving widow of Florencio Perales, asserting that she contracted a marriage with him which was valid at common law. There were no children of this purported marriage.

The jury impaneled to try the case found: (1) That the property involved was not purchased entirely with money belonging to deceased, Florencio Perales; (2) that Mary Flores and Florencio Perales had entered into a mutual agreement that they would, ^commencing at once, live together for the future as husband and wife”; (3) that in pursuance to such agreement said persons had “lived and cohabited together as husband and wife and held each other out to the public generally as husband and wife.”

Upon these findings judgment was rendered for the appellee.

Appellant asserts that the jury’s findings relating to a common-law marriage are without support in the evidence. Should appellant’s position be sustained, a reversal of the judgment must follow, as it was shown by uncontradicted testimony that the deceased, Florencio Perales, conducted the negotiations which resulted in the purchase of the property. At the time of the purchase, Perales was charged with the commission of a. criminal offense, and for that reason requested that Mary Flores be named as grantee in the conveyance. These circumstances would give rise to a resulting trust in favor of Perales, his equity being in proportion to the amount his payments upon the consideration for the property bore to the total purchase price. Hornbeck v. Barker, Tex.Civ.App., 192 S.W. 276, writ refused; Baylor v. Hopf, 81 Tex. 637, 17 S.W. 230 ; 42 Tex. Jur. 637, sec. 36.

Bearing upon the issue of the existence of a common-law marriage, the evidence shows that during the year 1927 appellee and Florencio Perales entered into an arrangement which was meretricious in character, although both were competent to contract a legal marriage. According to. appellee, the marriage took place in 1929. She gave direct evidence as to the agreement and, over appellant’s objection that such testimony was inadmissible under Article 3716, Vernon’s Tex. Civ. Stats., testified as follows:

“Q. I forgot to ask you about this. When you began going with Mr. Perales, about 1927, ■ what arrangement was made with reference to the manner in which you were living? A. When he started going with me he said he was going to marry me.
“Q; Then when you began living with him what did he do with reference to marrying you? A. He said, ‘Well, I guess there is no use for us to marry. We can live just as good without marrying because many people marry and divorce. We can live happy just the same.’
“Q. What did he say with reference to you living together? A. He said — he meant it was just as good as if I was his wife.
“Q. What did he say with reference to. you living with him ? Did he say he would marry you? State what Perales said. A. When he first started to go with me he said he was going to marry me and aft-erwards — we started going together and afterwards he said, ‘Well, it will be just as good without marrying as marrying because many people marry and divorce and ■ don’t live together. I think just as much of you and it is just the same as if you would be my wife.’ -
“Q. He said he thought just as much of you? A. Yes.
“Q. As if you had had a marriage? A. That he would think just as much of me without being married as if we would be married. The same thing. Just like he would be my husband and I would be his wife.”

Appellant does not assert that the trial court erred in admitting this testimony over his objection, but does contend that such testimony discloses an agreement which cannot be made the basis of a marriage at common law.

The necessary elements of a common-law marriage are set out in numerous Texas cases, among them being Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, L.R.A. 1915E, 1, Ann.Cas.l915C, 1011, and Drummond v. Benson, Tex.Civ.App., 133 S.W.2d 154, writ refused. We are here primarily concerned with the agreement or contract which is necessary to constitute the basis for a marriage at common law, for cohabitation and professedly living together as husband and wife will not constitute a legal common-law marriage if the element of a proper contract be lacking.

In the case of Schwingle v. Keifer, 135 S.W. 194, 196, the late Chief Justice Fly, speaking for this Court, said: “In this case • it has been attempted to prove the contract of marriage between appellant and Jacob Schwingle by the statements of appellant as to a positive agreement, as well as by cohabitation and by his declarations, and reputation in the community in which they lived, and if her testimony fails to sustain such agreement, cohabitation, nor declaration, nor reputation separate, nor combined, will prove marriage. Without an attempt and a failure to prove an agreement to become husband and wife, the other facts might become potent in establishing the marriage, but when the direct testimony as to the agreement fails the other evidence must fail also, for all the indirect or hearsay evidence is builded upon the agreement to become man and wife.”

In affirming this Court’s decision in the Schwingle case, Chief Justice Brown, of the Texas Supreme Court, said:

“A living and cohabiting together as husband and wife, or declarations of the parties that they are husband and wife, do not of themselves constitute a marriage in fact, in the absence of an agreement, express or implied. An agreement, either express or implied, coupled with a proviso or qualification, made at the time of entering into a marriage contract, that either or both of the parties to the contract could dissolve the contract at will would not in law constitute a marriage contract. * * *
“The plaintiff in error was permitted to testify, over objection, although she was incompetent. Edelstein v. Brown, 100 Tex. 403, 100 S.W. 129, 123 Am.St.Rep. 816. The charge of the court was more favorable to her than the law justified.
“Her own statement of the agreement between her and Schwingle showed that it did not in law constitute marriage. If it were the law that they could have created a marriage by contract only, it must have been an absolute agreement to be husband and wife during their lives. She proved that no such agreement was made; therefore there was no marriage. She could not have recovered if there had been no evidence but her statement.” Italics ours. Schwingle v. Keifer, 105 Tex. 609, 153 S.W. 1132, 1133. See also Bell v. Southern Casualty Co., Tex.Civ.App., 267 S.W. 531, writ refused.

Applying the above rules to ap-pellee’s testimony in the present case, even if it be considered that Perales in speaking of “marriage” had reference ‘only to a statutory mamage, the conclusion is inescapable that he intended an agreement creating a status determinable at will. His reference to divorce clearly indicates that he intended to create an arrangement which could be terminated by him without the intervention or approval of the governmental agencies of society. This proviso entered into and formed a part of the contract relied upon to support the alleged common-law marriage. Under the authorities above cited, such an agreement does not create a status recognized as marriage under the common law %s applied in this State. And certainly appellee’s testimony fails to meet the test set out by this Court in King v. King’s Heirs, 16 S.W.2d 160, wherein it was held that the elements of a common-law marriage must be established by clear and satisfactory proof.

Appellant’s assignments attacking the sufficiency of the evidence to support the jury’s findings relating to the alleged common-law marriage are sustained. The judgment of the trial court is reversed and the cause remanded.


author: SLATTON, Commissioner'.

text:
    HARDEE, Sheriff, et al. v. VINCENT et al.
    No. 1855-7602.
    Commission of Appeals of Texas, Section B.
    Feb. 12, 1941.
    E. D. Slough, of Amarillo, for plaintiffs in error.
    Lackey & Lackey, of Stinnett, for defendants in error.
   SLATTON, Commissioner'.

This is a suit brought in the district court for injunction and for damages by Edna Vincent, joined by her husband U. A. (Doc) Vincent, against the sheriff of Hut-chison County, and Tootle-Campbell Dry Goods Company. One of the purposes of the suit was to restrain the levy of an execution issued out of the county court of Hutchison County, Texas, on a judgment rendered on November 3, 1937, in favor of Tootle-Campbell Dry Goods Company against U. A. (Doc) Vincent for the sum of $385.95. The property upon which the levy was about to be made consisted of a stock of merchandise and fixtures situated in a storebuilding at Stin-nett, Texas, alleged to belong to the separate estate of Mrs.' Vincent. A motion to dissolve the temporary restraining order was filed and after hearing evidence the trial court granted a perpetual injunction in accordance with the prayer of Mrs. Vincent. The sheriff and the dry goods company appealed to the Court of Civil Appeals. The Amarillo Court of Civil Appeals affirmed the decree of the trial court. 127 S.W.2d 333. This Court granted a writ of error. Two contentions are presented to this Court, viz.: (1) That the pleadings of Mrs. Vincent are insufficient to show that the property involved belonged to her separate estate: (2) that the evidence failed to show that the property in question was paid for with the funds belonging to Mrs. Vincent’s separate estate. We shall only consider the second contention. The evidence shows that U. A. (Doc) Vincent on the 16th day of December, 1935, transferred and conveyed to his wife, Mrs. Edna Vincent, lot No. 2, block 54, in the town of Stinnett, Texas, and all of the stock of merchandise and trade fixtures contained in said store. The written instruments evidencing such convey-anees were forthwith recorded in the county records. U. A. (Doc) Vincent testified as follows: “The store situated on Lot 2 in Block 54, in Stinnett, Texas, has been continuously operated for several years by myself and wife. This business was commenced with funds belonging to my wife sometime prior to December 16, 1935, but was operated in my name. Since December 16, 1935, the business has been operated under the name of U. A. (Doc) Vincent, which is a trade name. I do not claim any interest in the business whatever. It belongs to my wife, Mrs. Edna Vincent. She gave me a working interest in the business and agreed to pay me $100.00 per month salary. The bank account has been carried in the name of U. A. (Doc) Vincent. The stock of merchandise consists of meat, groceries and dry goods; a gasoline filling station has and is being operated in connection with the business. Nearly all of the dry goods were bought on credit and were sold on credit and customers are still owing for the greater portion. I had charge of the dry goods. My wife had charge of the groceries, and has mostly paid cash for the past year and half.”

Six chattel mortgages were introduced in evidence showing the following transactions :

“Sale by Hobart Mfg. Co. to Vincent of one Coffee Mill, price $133.40, down payment $44.25, balance payable in monthly installments, dated March 27, 1936.
“Sale by Wayne Company to Vincent of two Gasoline Pumps, price $460.00, down payment $46.00, balance payable in monthly installments, dated June 13, 1936.
“Sale by Amarillo Supply Company to Vincent, one Viking Meat Case, Compressor and Meat Block, price $1450.00, cash payment $290.00, balance payable in monthly installments, dated December 9, 1936.
“Sale by Golden Light Coffee Company to Vincent, one Steel Table, 12 Stools and One Griddle, price $136.60, down payment $10.00, balance in monthly installments, dated December 24, 1936.
“Sale by Hobart Mfg. Company to Vincent, Slicer and Scales, price $430.68, down payment $72.33, balance in monthly installments, dated February 4, 1937.
“Sale by Hobart Mfg. Company to Vincent, Coffee Mill and Chopper, price $472.-50, cash payment $116.50, balance in monthly installments, dated March 8, 1937.”

The witness, U. A. (Doc) Vincent, in reference to said conditional sales contracts, testified that the cash payment of $44.25 was the credit allowance for coffee mill traded in which was included in the conveyance of December 16, 1935. There was a credit given for a meat case traded in which was included in the transfer to his wife, dated December 16, 1935. Part of the properties described in the bills of sale have been fully paid for. Vincent further testified that as agent for his wife he purchased the property described in said chattel mortgages and the same were used in his wife’s business and were in the store on Lot 2, Block 54, Stinnett, Texas. Vincent further testified that payments on the meat fixtures had been made from funds arising from the meat department. Payment of the gasoline tanks have been made from money from the filling station business and likewise from the other department. Separate accounts were kept but all cash sales and money received from collections were placed in the cash register and deposited in the bank in a general fund. He further testified that the judgment in favor of the dry goods company against him was for merchandise purchased for his wife’s business.

The evidence quoted is all the proof in the record. It is without dispute. It is settled in this state that “all property acquired by either the husband or the wife during marriage, by onerous title, is community estate, the burden of proving that any portion thus acquired is the separate estate of the wife rests upon the party asserting that fact.” Epperson v. Jones, 65 Tex. 425.

The proof shows that dry goods and fixtures were purchased on a credit and paid for with funds out of the business; that groceries were bought and paid for with cash out of the business. Whether the cash paid for the merchandise and fixtures came out of the capital investment or profits of the business does not appear.

The' testimony of Vincent, to wit: that “he did not claim any interest in the business” and that “it belongecf to his wife”, cannot be given the legal effect of rebutting the presumption of community property for the reason that profits derived from the wife’s separate estate during marriage belong to the community estate of the husband and wife. Epperson case, supra.

It was incumbent upon Mrs. Vincent to show that the money used in the purchase of additional stocks of merchandise and fixtures came out of her separate estate. She attempted to do this by showing that the business belonged to her separate estate at the time of the conveyances to her on December 16, 1935. The case was tried on March 14, 1938, some two years and three months after the conveyances from Vincent. During such time, the stocks of merchandise and fixtures were bought and sold, thus presenting the all-important issue as to whether the money used in the purchases of such additional stocks of merchandise and fixtures was profits from the business or capital investment.

Absent proof that the money so used came out of the capital investment, which is the state of the record, the presumption of the law, that property acquired by either husband or wife during marriage belongs to the community estate of the husband and wife, controls in the present case. It follows from what has been said that the stock of merchandise and fixtures acquired after December 16, 1935, belong to the community estate of Vincent and wife and is liable for the debts of the husband. Smith et al. v. Bailey, 66 Tex. 553, 1 S.W. 627; Middlebrook et al. v. Zapp et al., 73 Tex. 29, 10 S.W. 732; Epperson case, supra.

The decree of the district court granting the injunction which was affirmed by the Court of Civil Appeals will be here reversed,' the injunction dissolved and the cause remanded to the district court.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    FIRST NAT. BANK IN HOUSTON v. WHITAKER.
    No. 2345-7587.
    Commission of Appeals of Texas, Section A.
    Feb. 12, 1941.
    Edward S. Boyles, V. Lee McMahon, and Willard L. Russell, all of Houston, for plaintiff in error.
    Robert L. Sonfield, of Houston, for defendant in error.
   HARVEY, Commissioner.

This suit was brought by David Whitaker, as plaintiff, against the First National Bank in Houston, as defendant, to recover damages in the sum of $2,550, with legal interest, alleged to have been sustained by Whitaker on account of, and as a proximate result of, the negligence of the bank in delivering to one F. N. Pattee a certain cashier’s check for $2,550, and in pa'ying the amount of said check to Pattee. The case came on for trial. A jury was impaneled, but after all the testimony had been introduced, the jury was discharged from further consideration of the case, and the court thereupon rendered judgment against Whitaker. The latter appealed and the Court of Civil Appeals reversed the trial court’s judgment and rendered judgment for Whitaker. 125 S.W.2d 1066. The facts shown in testimony-are substantially as follows:

One W. E. Coffey was the owner of a certain tract of land situated in Wharton County, Texas. On May 26, 1936, a man named F. N. Pattee and a man named H. T. Wick concocted a scheme to perpetrate a swindle. On the date named they prepared a deed which, according to its terms, purported the conveyance of said tract of land. Coffey was named as the grantor in the deed, and “Marvin G. Ellis/' a fictitious person, was named as grantee in the deed. At the same time, the said conspirators prepared another deed which purported the conveyance of said tract of land by Marvin G. Ellis, as grantor, to H. T. Wick. On the same day, both Pattee and Wick went before a notary public, in San Antonio, and Pattee forged the signature of Coffey to the .first deed and, posing as Coffey, acknowledged same before the notary. They then went before a different notary public, and Pattee signed the deed which purported the conveyance of the tract of land by Marvin G. Ellis to Wick. Pattee in signing this deed did not use his real name but used the name “Marvin G. Ellis,” and the notary took and certified to his acknowledgment of the deed. Pattee and Wick then caused the Coffey deed to be put of record in Wharton County. Thereafter, on May 29, 1936, they went to the First National Bank in Houston and there Pattee drew a draft against Wick for $2,550. The draft reads as follows:
“First National Bank in Houston.
“Houston, Texas, May 29, 1936.
“At 10 days after date pay to the order of Marvin G. Ellis $2,550.00, Twenty five Hundred and Fifty & No/100 Dollars, with exchange, value received and charge same to account of Marvin G. Ellis.”
“FI. T. Wick, \
“Houston. J

Pattee attached to the draft the deed to Wick which is described above. The draft, with said instrument attached to it, was, by Pattee, acting under the name “Marvin G. Ellis” which he had assumed, placed in hands of the bank for collection. At the same time he told the collection teller that his postoffice address was “116 Taylor Street, San Antonio, Texas,” and instructed said official to deliver the attached deed upon payment of the draft, and to remit the proceeds to him (giving his name as “Marvin G. Ellis”) at the above address. A few days after this, Wick got in touch with Whitaker and opened negotiations with him looking to the sale of said tract of land to him. Wick submitted to Whitaker a duly certified abstract of title to the land, which contained a copy of the Coffey deed which Pattee had forged and placed of record. Wick told Whitaker that a man named Marvin G. Ellis was the owner of the tract of land, but the latter had executed a deed to him (Wick) for the land for the agreed consideration of $2,550, and had drawn a draft for said sum, and had placed same (with the deed attached) in the First National Bank in Houston for collection. Whitaker’s attorney examined the abstract of title, and also examined the deed attached to the draft in the bank, and said attorney pronounced the title, good. Thereupon Whitaker agreed to buy the tract of land for $3,575, and he, Whitaker, procured a cashier’s check from the South Texas Commercial National Bank of Houston, for the sum of $3,575, and he and Wick went to the First National Bank and a transaction occurred in which Wick, Whitaker and H. FI. Burg-hard, the collection teller of said bank, participated. In reference to this transaction, Whitaker testified as follows:

“On or about June 5, 1936, I went to the First National Bank in Houston. I went there for the purpose of paying a draft in the amount of $2,550.00, which was signed by Marvin G. Ellis, and it had'a deed attached to it. I went to the bank and talked to H. H. Burghard, the teller at the window, who had the draft and deed. I told him that there was a draft left with him, signed by Marvin G. Ellis in the amount of $2,550.00, to which there was a deed attached; that I was buying the land and wanted to pay the draft, and get the deed. H. T. Wick was with me at the time. I was buying the land from Wick. I handed Burghard a cashier’s check of the South Texas Commercial National Bank of Houston, in the amount of $3,575.00, payable to the First National Bank in Houston, which he accepted. At the time I delivered said check to Burghard, I told him I wanted two checks made out — one to Marvin G Ellis in the amount of $2,550, and the othei to H. T. Wick in the amount of $1,025.00; that the amount to be paid to Wick represented his profit in the transaction. Burg hard took the cashier’s check in the amoum of $3,575 and made out two cashier’s checks — one check was made payable to Marvin G. Ellis, in the amount of $2,550.-00. The other check was made payable to H. T. Wick, and was in the amount oi $1025, less approximately $2.55 that the bank charged. I believe the total amount of the check payable to Wick was $1,022.-45. The check payable to H. T. Wick was delivered to him in my presence. He spoke up and told Burghard that he would take the check payable to Marvin G. Ellis and deliver it to him, but I stopped him right there, and told Burghard that I did not want the check due Marvin G. Ellis delivered to Wick or any other person than Marvin G. Ellis; that he was the man who was'entitled to the money and I wanted him alone to get it. Burghard was instructed by me to pay the check only to Marvin G. Ellis. * * * I did that for my own protection, because I knew that if it was delivered like that I would be protected. I did not know any of the parties to this transaction, and I just' wanted to play safe. * * * Burghard said that he would deliver the check to Marvin G. Ellis as -instructed. * * * Burghard, right at the first, showed me the draft and the deed attached to it. The draft was in the amount of $2,550. * * * When I delivered the cashier’s check of the South Texas Commercial National Bank to Burg-hard, he stamped the draft paid and delivered it- to me, together with the deed that was attached to it. * * * At the same time, I had in my possession a deed dated June 5, 1936, executed by H. T. Wick, conveying me the same property described in the deed from Marvin G. Ellis to H. T. Wick. * * * At the time I told Burghard to deliver the cashier’s check for $2,550 to Marvin G. Ellis only, and to no other person, he had before him a receipt dated May 29, 1936, and on the back of this receipt was written the address of Marvin G. Ellis in San Antonio and it was 116 Taylor Street. Burghard turned over the receipt and showed me the address, and stated that ‘Marvin G. Ellis told me to mail the check to him at this address, and that is what I’ll do.’ During all these transactions I never met Marvin G. Ellis. I did not know any man by the name of F. N. Pattee. I did not know that Marvin G. Ellis was a fictitious person. I didn’t know anything about him. * * * It was my intention that the money that I gave the bank in payment of the draft was to be paid to the man who left the draft, with the deed attached, for collection by the bank, and who owned the land.”

A short time after the above transaction between Wick, Whitaker and Burghard occurred, but on the same day that same occurred, Wick and Pattee returned to said bank while Burghard was out at lunch. Another teller was at the collection window. Pattee called for the cashier’s check for $2,550, and same was delivered to him. He and Wick then went to a cafe near by, where Will Cochran, vice-president of said bank, was taking lunch. Wick introduced Pattee to Cochran as “Marvin G. Ellis.” Cochran marked the check “Identified” and signed his name to the notation. Thereupon Pattee, accompanied by Wick, returned to the bank and cashed the check. It is for the payment of this check to Pat-tee that this suit for damages is brought against the bank.

Where a draft is placed in the hands of a bank for collection, and the instrument attached to it for delivery, or the draft itself, is forged or is invalid for some other reason unknown to the bank, no liability is incurred by the bank by collecting the draft and transmitting the proceeds to the customer. This general rule finds abundant support in reason and in the authorities, — and the instant case is governed by it. Counsel for Whitaker insists, however that the rule has no application to this case for the reason that “Marvin G. Ellis” was a fictitious person, and the payment to Pattee of the cashier’s check for $2,550 — the proceeds of the draft — was wrongful. The case of Guaranty State Bank v. Lively, 108 Tex. 393, 194 S.W. 937, 939, L.R.A.1917E, 673, .is relied on as supporting this contention. In that case it is held that “a check which is made payable to a fictitious person without the knowledge of the maker is not payable to bearer, and it is the duty of the bank before paying it to ascertain the existence and the identity of the payee, and, failing to do so, to refuse its payment.” Obviously this holding does not fit the present case for the reason, among others, that no fictitious person was involved in the transaction of collecting the draft and paying over the proceeds to Pattee. Pattee, a real person, acting under the assumed name “Marvin G. Ellis,” placed the draft in the bank for collection. Pie was the person who drew -the draft and to whom the same was payable. He was the person who signed the deed which was attached to the draft. In each instance he employed for the occasion the assumed name: “Marvin G. Ellis.” The bank, being- ignorant of the fact that this was not his real name, was justified in issuing the cashier’s check to him under that name, and in paying the cl;eck. The bank was under no duty to Whitaker, or to anybody else, to make any inquiry as to whether or not the real name of its customer was “Marvin G. Ellis.” The testimony of Whitaker himself shows conclusively that he, too, believed that '“Marvin G. Ellis” was the name of the person to whom the cashier’s check, representing the proceeds of the draft, was to be delivered and paid.

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

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge. ICRUEGER, Judge.

text:
    BERNARD v. STATE.
    No. 21338.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    On Motion to Reinstate Appeal Feb. 19, 1941.
    Maury Hughes, of Dallas, and W. D. Justice, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The record is before us without bills of exception or a statement of facts. It appears from the judgment that appellant waived a trial by jury, entered a plea of guilty, and filed his application for a suspended sentence. The judgment of the court shows that sentence was suspended and further that appellant was ordered released upon entering into recognizance in the sum of $2,000. In view of the fact that the judgment shows that sentence was suspended on application made by the appellant, no appeal could be properly taken by the appellant to this court, as the judgment was not final. Under the circumstances, this court is without jurisdiction.

The appeal is dismissed.

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 to Reinstate Appeal.

ICRUEGER, Judge.

At a former day of this term of court, we dismissed the appeal in the case on the ground that the judgment, as the same appeared in the record, shows that appellant had been awarded a suspension of sentence from which no appeal could be prosecuted to this court.

The State has filed a motion for a rehearing accompanied by a certified copy of the judgment from the clerk of the District Court of Henderson County, as well as an affidavit by the clerk in which it is stated that the judgment found in the original transcript was incorrectly copied therein, when in truth and in fact the judgment, as it appears upon the minutes of said court, does not suspend the appellant’s sentence. Therefore, the State’s motion for a rehearing is granted and the case will be disposed of on its merits.

There are no bills of exception complaining of any matter of procedure; nor is there a statement of facts in the record. Consequently the only matter presented for review is the sufficiency of the indictment which appears to be in due order. Therefore, the judgment of this court dismissing the appeal is set aside, the appeal is reinstated, and the judgment of the trial court is in all things 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.


author: CHRISTIAN, Judge. HAWKINS, Presiding Judge.

text:
    JACKSON v. STATE.
    No. 21274.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Denied Feb. 26, 1941.
    Oscar B. Jones, J. H. Broadhurst, Charles Yonge, and Cecil Storey, all of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Jonas Nabors by shooting him with a gun.

Appellant, who is a white man, was engaged in the taxi-cab business in the City of Longview. Deceased, who was a negro, ran a shoe-shining establishment, and also operated his automobile in hauling negro passengers for pay. On the 25th of February, 1940, after arming himself with a shotgun, appellant drove with a companion in one of his taxi-cabs to Bob Lloyd’s in search of deceased. On arriving at Lloyd’s, appellant, according to his testimony, observed deceased’s car parked there. Stopping his own car, he waited for deceased to appear. In about fifteen minutes deceased came out of the house and appellant called him, saying, “Come over here Jonas.” Instead of complying with the request of appellant, deceased ran toward his (deceased’s) car; whereupon appellant shot and killed him. According to the testimony of the state, appellant shot deceased three or four times; and, further, according to the state’s version, deceased was making no demonstration toward the appellant at the time he was killed. It was the state’s version, given support in the testimony, that appellant killed deceased because of the fact that deceased was his competitor in business and was securing patronage which appellant thought belonged to him.

Appellant testified that shortly before he killed deceased he had been informed that deceased was threatening to kill him. He armed himself and sought deceased for the purpose of talking to him about the matter. He testified that he had no intention of killing deceased but only wanted to talk to him relative to the threats deceased had made to take his life. It was his further version that when he called deceased, deceased ran toward his car, leading him to believe that he was after a gun. At this juncture we quote from the testimony of the appellant, as follows: “I knew in my own mind he had a gun in the car and when he made a break to his car, I shot him. As to whether I was in fear of my life at the time I shot him or not, I knew he would kill me if I didn’t kill him, if he got to that car. I was pretty well excited. They say I shot five times, I don’t remember.”

Appellant also testified to the effect that he had heard that deceased was a violent and dangerous man.

The state’s theory relative to appellant’s motive in taking the life of deceased is shown in the cross-examination of the appellant. We quote from the testimony given by appellant on such cross-examination as follows:

“You have asked me the question if for some time past Jonas (deceased) and I hadn’t had difficulties about Jonas picking up my calls down in Old Field and I will answer no, not Jonas particularly. As to whether I had been going to the City Police Department and asking them to arrest Jonas along with others, will say I asked them to stop these negroes wildcat-ing. In answer to your question if they were negroes that would haul them for less money than I would haul them for, will say I don’t know what they were hauling them for. It was my understanding they were hauling people I should have been hauling. In answer to your question that that was the reason I appealed to the City Officers and on June 22, 1939, I recall marking some money and giving it to a negro to hand Jonas Nabors, will say I don’t know whether I put the marks on the money or not. Mr. Calloway and I marked it and I think he put the marks on it. That is the same Mr. Calloway who testified in this case today. He placed the marks on the money and got the negro to go hire Jonas to take him some place. After the negro got in the car Mr. Callo-way and Mr. - Woodall arrested Jonas and found him with the marked money we had given him to hire him, and after that Jonas pled guilty to operating a cab without a city license and paid his fine. From that time on'when I spoke, to Jonas he would frown at me. I didn’t kill Jonas because he frowned at me. All during the past year from July on down to February 25, Jonas and I had no difficulty. As to how many waterhauls my taxis made to Nelson Street on February 25th, will say we make waterhauls everywhere; in fact, about ten percent of our business is waterhauls. I don’t know how many we made to Old Field that day. We had made some.”

It is shown in bill of exception No. 3 that C. E. Barker, a witness for appellant, operated one of appellant’s taxi-cabs. This witness testified that he knew of no difficulties appellant had had with the deceased prior to the homicide; and, further, that he did not know appellant had filed charges against deceased in connection with the operation by deceased of his taxi-cab. It is further reflected by the bill that state’s counsel asked the witness upon cross-examination if he had not heard appellant refer to the fact that deceased had been “picking up fares” which appellant should have gotten. Upon appellant’s objection to the question being overruled, the witness answered: “The drivers were talking among themselves about Jonas getting calls they was supposed to get. But they never went to Mr. Jackson about stuff like that for it was for them to figure out.” Appellant contented himself with objecting to the answer of the witness on the ground that such answer was “irrelevant, immaterial, hearsay, prejudicial and had no bearing upon the case.” No request was made to withdraw the testimony. However, in view of the fact that the court overruled the objection as stated to the bill of exception, and of the further fact that we deem the error, if any, which was committed in receiving the testimony, to be harmless, we leave undecided the question whether the bill of exception is sufficient. Our conclusion that the error, if any, was harmless follows from the fact that appellant, without objection, gave substantially the same testimony as that of the witness. We refer to the last quotation from appellant’s testimony hereinbefore set out. It is observed from such testimony that appellant had asked the officers to prevent deceased and other negroes from “wildcating”. Further, it is observed from appellant’s quoted testimony that he understood that deceased and other negroes had been hauling people that he (appellant) should have been hauling. Again, it is observed from appellant’s testimony that he had gotten the officers to have marked money used by a negro passenger in paying deceased for service rendered in hauling him. Appellant testified that when deceased was arrested with the marked money in his possession he (deceased) pled guilty to operating a cab without a city license, and paid his fine. In view of appellant’s testimony touching deceased’s alleged activities in operating - a taxi-cab, which apparently were deemed by. appellant to unfairly interfere with his own business, the reception of the testimony of the witness Barker, to which reference has been made, should not work a reversal of the judgment.

Appellant testified, in effect, that he had heard deceased had been in trouble in the state of Louisiana. On this point we quote appellant’s testimony: “I had heard about the trouble that he (deceased) had in Louisiana before he came down here, that some white folks had run him out of town. I hadn’t heard much about that.” In this connection it is shown in bill of exception No. 1 that Alex Lewis, a witness for appellant, had testified that deceased’s general reputation as a peaceable and law-abiding citizen in the community in which he lived was bad. Further, he testified that deceased was a man “who would be reasonably calculated to carry out a threat he would make to kill a man.” After the witness had given such testimony appellant offered to prove by him that deceased had been in trouble in the state of Louisiana, and that his trouble was of such a nature that he had to leave that state and come to Texas. The state’s objection to the proffered testimony was sustained. It is appellant’s contention that the bill of exception reflects error. He cites the cases by this court which correctly announce the general rule as follows: “If self-defense is an issue, defendant may prove anything known to him prior to the homicide about deceased as going to show why defendant acted. Proof of specific acts of unlawful violence committed by deceased on others is admissible, if defendant knew of them prior to the homicide, to show who was probably the aggressor, and to show the state of mind of defendant, and to shed light upon the standpoint of defendant at the time of the homicide.” See Section 2094, Branch’s Ann.P.C., and Beckham v. State, 133 Tex.Cr.R. 206, 109 S.W.2d 764. It is observed that the character of trouble deceased was alleged to have been in in Louisiana is not shown, either in the testimony of the appellant or the bill of exception relating to the proffered testimony of the witness Lewis. As far as the record discloses the matter, deceased might have been guilty of conduct in Louisiaila which was reprehensible and yet been guilty of no specific acts tending to show that he was a violent or dangerous man. For example, the deceased might have been guilty of theft of chickens or gambling and yet not have committed any act of violence indicating that he was a dangerous man. Acts constituting the offenses last mentioned, within themselves, could not be said to show that deceased was probably the aggressor at the time he was killed, or to shed light upon the standpoint of the appellant at the time of the homicide. The cases we have examined in which the rule has been given application have been concerned with proof of specific acts of violence on the part of the deceased. We know of no case holding that proof in general terms that the deceased had been trouble is admissible under the rule announced in Section 2094, Branch, supra, and in Beckham v. State, supra, and the authorities there collated. We do not feel warranted in holding that proof of specific acts of misconduct on the part of the deceased, not shown to have a tendency to characterize him as a violent or dangerous man, is, under the circumstances reflected by this record, admissible. in

Appellant contends that the court should have instructed the jury, in substance, that he had the right to arm himself and seek an explanation from deceased relative to the deceased’s threats to kill him. The charge of the court gave appellant the unlimited right of self-defense. Ordinarily, when such right is given a charge of the nature appellant now contends he should have had is not -required. Be that as it may — and we leave undecided the question as to whether the charge would have been proper — it is observed that appellant failed to except to the charge of the court for its failure to give the instruction on the subject; nor did he present a requested charge covering such subject. Under the circumstances, we are not warranted in reviewing the question.

After carefully examining the record in the light of appellant’s brief, we are of opinion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant still insists that the trial court was in error in declining to permit the witness Lewis to testify that deceased had been in trouble in Louisiana of such character that he had to leave that state and come to Texas. Complaint of this matter was brought forward in bill of exception No. -1, which was treated at some length in our original opinion, to which reference is here made to avoid repetition. In support of his motion on this point appellant cites us to Smith v. State, 67 Tex.Cr.R. 27, 148 S.W. 699; Childers v. State, 30 Tex.App. 160, 16 S.W. 903, 904, 28 Am.St.Rep. 899, and Russell v. State, 11 Tex.App. 288. In both the Smith and Childers cases the incidents sought to be shown regarding the deceased and which the accused knew about, or of which he had been informed, would have characterized deceased as a violent and dangerous man. Therein lies the distinction between those cases and the incident here under consideration. In Russell’s case, we understand the point discussed in the opinion related to proof of acts of violence and assaults by deceased which had been made upon the defendant, which had occurred at times prior to the killing. The exact question now before us was decided in Pollard v. State, 58 Tex.Cr.R. 299, 125 S.W. 390, and Roquemore v. State, 59 Tex.Cr.R. 568, 129 S.W. 1120, and sustains the holding announced in our original opinion.

Appellant also again urges that bill of exception No. 3 presents error calling for a reversal. Upon further consideration we remain of the opinion already expressed that the error, if any, wa's harmless in view of appellant’s own evidence, which is sufficiently set out in our former opinion.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    NAVARRO v. STATE.
    No. 21263.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Rehearing Granted Feb. 19, 1941.

      Collins, Williams, Hatchell & Garrison, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant plead guilty to a charge of assault to murder and asked for a suspended sentence. His case was presented to a jury and he was assessed a penalty of five years in the penitentiary without a suspended sentence. The record shows that the court appointed an attorney to represent him in presenting his plea for a suspended sentence. It shows further that the court admonished appellant of the consequences of his plea of guilty.

The record is before us without hill of exception complaining of the introduction of testimony or any ruling of the court during the trial.

As we understand the things that took place, the appellant had no attorney to represent him when he came into court The evidence was properly presented which would have authorized the jury to have suspended his sentence had they, in their judgment, felt that it was a proper case to do so. After this a motion for rehearing was duly presented and overruled. Thereafter some friend became interested in appellant and secured other counsel to represent him who prepared and presented to the court a motion asking that he set aside the proceedings; set aside his order overruling the motion for new trial and permit him to withdraw his plea of guilty. Among other things, it is alleged that the appellant was a Mexican who did not understand the English language sufficiently to comprehend the result of his act in pleading’ guilty. This motion was ably presented and, as we interpret the order of the court thereon, was overruled because the trial court did not agree to the facts or concur in the “equities” pleaded. There is no contention that the trial judge did not have the power to set the order aside and that question is not here passed upon.

We do find in the record what is denominated a bill ’of exception, which includes the motion filed to set the proceedings aside and grant a new trial. It also includes complaints about various things appearing in the trial, to which no bill of exception was taken at the time. While this instrument was filed in the court below, it apparently had no purpose in that court other than to be transmitted with the record to this court under the name of a bill of exception. It, in fact, is a plea that this court consider the equities of the case; that we substitute our judgment in discretionary matters for that of the trial court. We have no such jurisdiction.

An affidavit was filed originally in this court by the appellant’s attorney, setting out facts which, from his standpoint, would, undoubtedly, have appealed to the trial judge. None of these matters, however, may be considered in this court.

It is suggested that even though the appellant had pleaded guilty, it became the duty of the trial court under the facts to withdraw his plea and enter for him a plea of not guilty. This is based upon excerpts from the testimony of appellant in reply to the question as to why he shot Y’Barbo. To this question he replied that when they first met at this particular time, Y’Barbo went around the house and he thought he was going in the house to get a gun; that Y’Barbo went to the door and could not get in and he came back and started off of the porch to the gate and that is when appellant shot him; that he did so because he thought Y’Barbo was seeking to get a firearm with which to shoot appellant.

The court in qualifying the bill of exception made substantially this statement, and added the following: “The defendant in the trial testified to such state of facts as would have warranted the court in submitting the issue of self defense to the jury had he not entered his plea of guilty.”

When a plea of guilty is entered And the proof contains evidence which, if believed, shows the innocence of the accused, it may and sometimes does become the duty of the trial court to withdraw the plea of guilty and have entered for the defendant a plea of not guilty. This is most frequently true where the mental capacity of the party on trial becomes a proper question under the evidence for the jury. Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538; Edwards v. State, 134 Tex.Cr.R. 153, 114 S.W.2d 572, 573; Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180.

Judge. Davidson said in Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975, 977: “If the defendant .pleads guilty, and the facts should develop that he is not guilty, but acted purely in self-defense, it would be the duty of the court to see that no conviction was had, although a plea of guilty was entered.”

See also Villa et al. v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023, in which Judge Lattimore says under certain circumstances that it would be a better procedure to have the plea of guilty withdrawn and the case concluded upon the entry of a plea of not guilty.

We agree with the question of law raised, but the facts in the trial judge’s certificate and which are quoted as a part of the evidence are not sufficient to warrant a jury in concluding that appellant acted in self defense. If the language of the learned trial judge is to be understood as reaching a conclusion that the testimony which he quotes from the record was sufficient to raise such issue, then we think that conclusion was error and that his certificate does not certify error in the trial. We must consider the entire certificate and would not feel bound by the trial judge’s conclusions on a legal question, Pounds v. State, 128 Tex.Cr.R. 519, 81 S.W.2d 698.

We find no error which may be considered by this court. The judgment of the trial court is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant complains because of' the fact that, as he claims, he was deprived of a statement of facts with no fault upon his part. It appears from an affidavit herein filed by appellant’s attorney, J. J. Collins, that upon the trial of this cause the trial court appointed an attorney to advise with -appellant relative to the filing of an application for a' suspended sentence. That such a plea was filed by the attorney, and after what the trial court considered a proper understanding of the statutory warning, appellant pleaded guilty to the offense of murder, which was charged in the indictment. Appellant and his son were both charged with the same offense in the same indictment. It appears from the record that testimony was offered both by the State and the defendants, ^ and the jury granted appellant’s son’s plea for a suspended sentence, but refused that of appellant, and he was sentenced to a term of five years in the penitentiary. It further appears that no notes were taken by the court reporter relative to the testimony heard at the trial, and upon appellant giving notice of an appeal to this court, neither the trial court, the reporter, the State’s Attorney, nor the counsel appointed by the court were able to make up a statement of such facts from memory, and though demanded by appellant’s later employed attorney, no statement appears in the record.

A motion for new trial was filed by the attorney who had been appointed by the court to represent appellant. The motion was overruled on April S, 1940, to which order appellant excepted and gave notice of appeal to this court. Appellant’s bond pending appeal was fixed at $2,500, and on the same day, April 5th, appellant entered into recognizance and was released pending the appeal. On April 13th, during the trial term of court, but after the jurisdiction of this court attached appellant, through his present attorney, filed a motion requesting the trial court to reopen the case and again consider a motion for new trial.

There is no question but that the trial court had control over its judgments and orders during the term at which they were entered, provided the court had not lost jurisdiction by reason of the notice of appeal. Said notice of appeal was never withdrawn. Article 828, C.C.P. makes it very clear that after notice of appeal is given it suspends and arrests “all further proceedings in the case in the court in which the conviction was had, until the judgment of the- appellant court is received by the court from which the appeal was taken.” The only thing the trial court may do in a case after notice of appeal has been given is to substitute lost or destroyed records. Tores v. State, 74 Tex.Cr.R. 37, 166 S.W. 523. The trial court heard evidence on the motion which had been filed on April 13th, overruled the motion, and appellant undertakes to bring before this court by bill of exception certain things regarding the original plea entered by appellant and other matters. This bill of exception has no part in the record. The trial court was without jurisdiction to entertain the motion or to hear evidence relating thereto.

Appellant urges that he has been deprived of a statement of facts. In so far as the recitals of the trial judge in the so-called bill of exception relates to or throws light on that issue we think it may be considered, the same as an independent statement of the trial judge could be looked to, because it relates to a matter not a part of the trial record, but to something occurring subsequent to the trial.

An accused may appeal his case although he has entered a plea of guilty. Section 1 of Art. 760, Vernon’s Ann. C.C.P. of Texas, as amended by Acts 42d Legislature, 1st C.S., Ch. 34, § 7, reads as follows: “Where the defendant in a criminal case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form.”

Section 6 of said .Art". 760 provides: “When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant. In all cases where the court is required to and does appoint an attorney to represent the defendant in a criminal action, such reporter shall be required to furnish the attorney for said defendant, if convicted and where an appeal is prosecuted, with a transcript of his notes. For each said service he shall be paid by the State of Texas, upon the certificate of the trial judge, one-half of the rate provided by law in civil cases.”

Art. 2324, R.C.S. points' out the duties of the Court Reporter, one of which is to “attend all sessions of the court, take full shorthand notes of all oral testimony offered in every case tried in said court,” etc.

While Section 7 of Art. 760, C.C.P. points out that parties may prepare a statement of facts independent of the notes of the official reporter, in the practical operation of the trial courts attorneys and judges are so accustomed to rely on the reporter that they have ceased to take notes themselves or to charge their minds with the facts developed upon the trial.

The trial judge certifies in the sq-called bill of exception that appellant advised the court that appellant desired to make application for a suspended sentence and that the court appointed an attorney to prepare and present such application, “and that otherwise the defendant was not represented by counsel in the trial of his said cause”; that none of the testimony of the witnesses upon the trial was taken by the court reporter; that the trial judge remembers part of the testimony of some of the witnesses, but that the testimony of other witnesses he does not remember, but could recall substantially what evidence they gave; that counsel now representing appellant requested of the trial judge a narrative statement of facts certified by him.

Appellant’s present counsel, as shown by his affidavit filed in this court, requested the court reporter to furnish counsel with a statement of facts for which he would be paid, and that upon being advised by the reporter that he was not present at the trial and took no notes of the evidence given counsel sought the assistance of appellant in making up a statement of facts, but that appellant was unable to give him any aid whatever; that the attorney appointed by the court to represent appellant would not attempt to make' a statement of facts because he had not taxed his memory with any of the evidence given; that the district attorney was then requested to make up a statement of facts, but he advised counsel for appellant that he (the district attorney) had no sufficient recollection of the evidence to undertake it; that present counsel for appellant then requested the trial judge to make up a statement of facts, but this had not been furnished.

Appellant undoubtedly had the right to appeal; having this right he was also entitled under the provisions of the statutes heretofore quoted to have a statement of the evidence taken upon his trial. Under the circumstances heretofore related it seems that without fault on his part he has been deprived of a statement of facts, and that a reversal of his case must follow.

This case demonstrates the advisability 0f having the court reporter take the evidence even on a plea of guilty, as the failure to do this in the present instance js the primary cause of not having a statement of facts before us.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded,


author: KRUEGER, Judge.

text:
    MOSS v. STATE.
    No. 21425.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Syd Reagan, Robert C. Eckhardt, and Robert S. Vance, all of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of the offense of incest. The punishment assessed is confinement in the state penitentiary for a term of five years.

There are no bills of exception in the record. The' only contention which appellant makes is that the evidence is insufficient to justify and sustain his conviction.

The prosecutrix testified that appellant was her father; that on or about the 1st day of June, 1939, she was seventeen years of age; that on the date mentioned she was living at home with her parents in Texarkana in Bowie County, Texas; that her father was engaged in the manufacture of photoengraving equipment and printing; that his office or place of business was on the same lot on which their home was situated and about fifty feet in the rear thereof; that there were three rooms in the building in which he conducted his business; that one of the large rooms was divided into three very small rooms. On the day in question the prosecutrix and Mildred Rawlinson were at appellant’s place of business. About 2:30 P. M. appellant came into the room, put his arms around the neck of the prosecutrix, felt of her breasts and all over her person, and then did the same to Mildred. He asked the prosecutrix to go into the middle room (which was a dark room) where he had an act of sexual intercourse with her. The prosecutrix testified that this was not the first act; that appellant had been having intercourse 'with her since she was ten years of age; that she first reported this matter on April 10, 1940, and married the following day.

The testimony of the prosecutrix shows that considerable ill feeling was aroused in her mind against appellant because he lectured her ’for playing hookey from school, staying out late at night and for keeping company with the young man with whom she was infatuated and whom she married; that on one or two occasions appellant had whipped her. By her own testimony, she made herself an accomplice and the trial court properly so instructed the jury. In order to sustain this conviction, the record must show that the testimony of the prosecutrix was corroborated upon the material incriminative facts. Now, let us pause here for a moment to analyze the corroborative testimony and see if it meets the requirements of the law. The only testimony offered by the State, in addition to that of the prosecutrix, is that of Mildred Rawlinson, who testified that she and the prosecutrix were at the appellant’s place of business on the day in question; that while there she (Mildred) wrote on a typewriter while the prosecutrix cut papers which were to be used by the appellant in connection with his business; that during the day while they were so engaged appellant came into the office, put his arm around the neck of the prosecutrix and touched her breasts; that he also put his arm around the neck of the witness, Miss Rawlinson, and touched her breasts; that she took his hand and moved over a little to one side. Appellant then talked like he had some pictures back in the adjoining room which he wanted the prosecutrix to help him fix and they went back into that room and remained for some ten or fifteen minutes while Miss Rawlinson remained in the office; that when the prosecutrix returned Miss Rawlinson left for the purpose of going home as it was getting late. The prosecutrix testified that on the following day she went to see a doctor but the doctor was not called to testify as to what he found, if anything, as a result of his examination of her. It is true that there is some testimony corroborating the prose-cutrix as to where she was and what she and Miss Rawlinson were doing at the time that appellant came into the office; that he put his arm around her neck and touched her breasts; and that the prose-cutrix, at the request of the appellant, went into the adjoining room ostensibly with the view of doing some work on pictures, but this testimony is not corroborative of any material incriminative facts. To justify a conviction upon the testimony of an accomplice, it must be corroborated as to material and not immaterial facts. In this respect the State’s evidence fails to meet the requirements of the law.

In the case of McClure v. State, 89 Tex.Cr.R. 407, 231 S.W. 774, the facts are in substance the same as those in the present instance'and in that case Judge Lattimore held that the accomplice was not sufficiently corroborated to justify the conviction. See, also, Masten v. State, 109 Tex.Cr.R. 596, 6 S.W.2d 367; Woolley v. State, 50 Tex.Cr.R. 214, 96 S.W. 27; Bradshaw v. State, 82 Tex.Cr.R. 351, 198 S.W. 942; Cottrell v. State, 91 Tex.Cr.R. 506, 240 S.W. 313.

On the trial of this case the prosecutrix testified to other previous acts of intercourse with the appellant covering a period of seven years, but there is not a scintilla of evidence corroborating her as to any of the former acts. She never made any complaint of the appellant’s alleged conduct until he sought to persuade her, and perhaps restrain her, from keeping company with the young man whom she married two days after the alleged occurrence, and not until she had declined the parental advice, abandoned the home and the family circle and had gone to the home of the appellant’s personal enemy. If the appellant was guilty of the conduct attributed to him by the prosecutrix for the preceding seven years, she never divulged it until the. day before her marriage. Just why she kept it concealed within her breast for these many years or what prompted her to disclose it on the eve of her marriage is not explained but is permitted to remain a mystery.

Inasmuch as we are reversing this case by reason of the insufficiency of the evidence, we have set out the testimony more in detail and at greater length than we would otherwise have done.

Having reached the conclusion that the evidence is insufficient to sustain the conviction, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


text:
    BUTLER v. STATE.
    No. 21381.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    See, also, 138 Tex.Cr.R. 543, 137 S.W.2d 1029.
    Marvin P. McCoy, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for assault with intent to rape. The punishment assessed is confinement in the state penitentiary for a term of 101 years.

The State’s testimony shows that about 8:30 P. M. on January 6, 1939, appellant entered the tent of Mr. & Mrs. William Lueck with a pistol in his hand and made an assault upon, Mrs. Lueck, and did, by putting her in fear of her life, intend to ravish her. Appellant denied that he was at the tent on the night in question. He testified that he was working at a restaurant for Sarah Irwin, and he was corroborated in his plea of alibi by a number of witnesses of his own race. The issue thus formed was determined by the jury adversely to appellant.

By bill of exception No. 1 appellant complains of the action of the District Attorney on cross-examination in asking him , if he had not been indicted in cause No. 46,793 for an assault with intent to rape Mrs. Haley. He replied to the State’s question in the affirmative. It is further made to appear from the hill that after the trial and during- the pendency of the motion for a new trial in the instant case, one Nehemiah Glover confessed to having committed the assault on Mrs. Haley, and upon the hearing of appellant’s motion 'for a new trial, Mrs. Haley testified that she was mistaken in her identification of the appellant as the person who assaulted her; that in truth and in fact Glover was the person who assaulted her and not the appellant. The question relating to the appellant’s indictment in cause No. 46,793 and his reply thereto in the affirmative was not admitted for the purpose of showing the appellant’s guilt in this case but for the purpose of affecting his credibility as a witness, and the court so instructed the jury on the subject. However, the testimony shows that appellant had theretofore been indicted and convicted in four separate and distinct felonies. It is inconceivable how the fact that he was indicted for an assault with intent to rape Mrs. Haley could have prejudiced him with the jury any more than his admitted former convictions. The fact that Mrs. Haley may have been mistaken in her identification of the appellant could in no event be used to show that Mrs. Lueck was likewise mistaken in her identification of him. If appellant had not admitted his former convictions and none had been shown, a more serious question might have been presented; but from all the facts and circumstances disclosed by the record, we do not believe that the bill reflects any reversible error.

By bill of exception No. 2 appellant complains of the action of the District Attorney in the cross-examination of Sarah Irwin, a witness for the appellant, in eliciting from her the fact that she did not testify in behalf of the appellant at his former trial; that she was present at the former trial when he got 100 years. It appears that counsel immediately moved the court to enter a mistrial which the court declined to do, but instructed the jury not to consider the evidence for any purpose whatever. However, the contention is here made that the testimony was so damaging and prejudicial that ‘ the ‘ court could not effectually eradicate the same from the minds of the jury. We are of the opinion that there is merit in his contention.

Article 759, C.C.P., reads as follows: “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.”

If the District Attorney had merely proved by the witness that on the former trial of the appellant in this case she was in attendance upon the court but had not been called as a witness to testify, it would not necessarily require a reversal of the judgment, but when the result of the former trial was disclosed to the jury, it was obviously hurtful, and to what extent it may have influenced the jury to assess the punishment at 101 years, we will not pause to speculate.

In the case of Wyatt v. State, 58 Tex.Cr.R. 115, 124 S.W. 929, 137 Am.St.Rep. 926, the Assistant County Attorney, on cross-examination of the accused, asked him the following question: “Have you not been convicted and given ten years in this case ?” The court immediately stopped the attorney and remarked, “Don’t ask such questions as that. You know you have no right to ask such questions, and if you do it again the court will punish you.” The court then turned to the jury and instructed them that the question was not in evidence and that it was illegal and improper, and that they should not consider it for any purpose whatever. Notwithstanding the court’s action in that case, this court, speaking through Judge Davidson, held that the question propounded was improper and of such prejudicial nature that the court could not effectually withdraw it from the jury. We are of the opinion that knowledge of the result of the former trial had the same effect upon the minds of the jury in the instant case as it did in the case of Wyatt v. State, supra; and upon the authority of that case, we feel that the judgment of the trial court in the present instance should be reversed and the cause remanded, and it is so ordered.

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: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    ORLANDO v. STATE.
    No. 21382.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    On Motion to Reinstate Appeal Feb. 19, 1941.
    A. E. Heidingsfelder and W. W. Wander, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The conviction is for a misdemeanor; the punishment, a fine of twenty-five- dollars.

The recognizance merely shows that appellant has been convicted. It fails to state that the conviction was for a misdemeanor. It being defective in the respect mentioned, this court is without jurisdiction.

The appeal is dismissed.

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 to Reinstate Appeal.

BEAUCHAMP, Judge.

Appellant was convicted of violating the plumbing ordinance of the city of Houston, and assessed a fine of $25.

As we understand the record, the facts are identical and the same question raised in the case decided by us in Clarence Morrow v. State, 147 S.W.2d 248 (not yet reported [in State Report]). For the reasons therein stated, we think that error was committed.

The appeal in this cause was originally dismissed because of an error in the recognizance as shown by the record on appeal. By proper certificate the clerk of the court has corrected the error. Accordingly, the motion to reinstate the - appeal is granted and the judgment of the trial court is reversed and the cause remanded.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    FRANCO v. STATE.
    No. 21186.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 26, 1941.

      Will A. Morriss, of San Antonio, and Arthur Gonzalez, of Del Rio, for appellant.
    Lloyd W. Davidson, State’s' Atty., of Austin, for the State.
   KRUEGER, Judge.

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

This is a second appeal of this case. For the former opinion, see Franco v. State, 132 Tex.Cr.R. 164, 103 S.W.2d 380.

Appellant’s main contention upon the present appeal is that the evidence is insufficient to warrant and sustain his conviction of murder with malice aforethought. It appears from the testimony adduced by the State that on the afternoon in question appellant and deceased met at a beer tavern in the town of Rocksprings. In a very short time after the deceased entered the tavern they became involved in a fist fight. The deceased, without any apparent cause, precipitated the fight by striking the first blow. They were separated by some of the customers. Appellant was escorted from the tavern by two friends while the deceased went to his home which was.but a short distance away. Appellant left the scene of the difficulty, went to the home of a friend and asked to borrow a pistol but was told by the friend that he had none. From there appellant went to his home, procured a pistol and then went to the home of the deceased, called him out to the street and invited him to go with him. After they had walked but a short distance appellant shot the deceased with a large caliber pistol. The bullet entered the body on the left side and made its exit near the spine and on" a level with the point of entrance. The ground at the place where the shooting occurred indicated that a struggle or encounter had taken place.

Appellant took the witness stand and testified that when the deceased entered the tavern he immediately attacked him (appellant) and knocked him down without any cause or provocation. He admitted, however, that when he left the beer tavern, he went to the home of a friend to borrow a pistol and from there he ’ went to his own home; that upon his arrival at home he found his family absent and concluded that they had gone to church. He then took a pistol from his trunk and started to look for his family; that while going up the street he met the deceased who again attacked him, whereupon he fired several shots at the deceased who immediately began to retreat.

Upon the facts as above related the jury found appellant guilty of murder with malice. Can we say, as a matter of law, that the evidence is insufficient to justify and sustain the jury’s conclusion of appellant’s guilt of murder with malice? We think not. To do so would be a usurpation by this court of the functions of the jury. If the jury had accepted the appellant’s version of the unfortunate affair, they no doubt would have rendered a different verdict, but they evidently gave little, if any, ere-dence to his testimony, which was in conflict with that adduced by the State.

The officers who arrested appellant soon after the fatal difficulty testified that they noticed but one bruised place on appellant’s jaw, which he no doubt received in the first encounter at the beer tavern.

Appellant, in due time and form, filed a plea for a suspension of sentence in case of his conviction and supported the same by proof of a general good reputation as a quiet, peaceable and law-abiding citizen. However, the jury declined to recommend the suspension of his sentence.

Appellant addressed a great number of objections to the court’s charge. We have reviewed the same in the light of the objections and reached the conclusion that the charge, although lengthy and somewhat verbose, is a fair and adequate application of the law to the facts. The court instructed the jury upon the law of murder with and without malice, upon the law of aggravated and simple assault, upon self-defense and upon the law relative to a suspension of sentence.

Appellant next complains of the action of the trial court in overruling his motion for a new trial based on misconduct of the jury in this: That the juror, George Gentry, misled him when on his voir dire examination he stated that he had no prejudice against appellant or his race, when in truth and in fact he did have; that if the juror had answered the interrogatories propounded to him by counsel for appellant truthfully and correctly his prejudice would have been disclosed and he would have challenged him. The record shows that both deceased and appellant were Mexicans. In addition thereto, appellant set up several other grounds in his motion upon which he sought a new trial. The court heard evidence relative to the matters urged as grounds for a new trial. Juror Gentry emphatically denied that he enter-, tained any ill will or prejudice against appellant or his race. The trial court decided all controverted issues adversely to him, and the decision on questions of fact will not ordinarily be set aside unless an abuse of discretion is shown. All matters relating to the misconduct of the jury are addressed primarily to the discretion of the trial court. See Rogers v. State, 40 Tex.Cr.R. 355, 358, 50 S.W. 338; Shaw v. State, 32 Tex.Cr.R. 155, 22 S.W. 588; Armstrong v. State, 34 Tex.Cr.R. 248, 30 S.W. 235; Harris v. State, 40 Tex.Cr.R. 8, 48 S.W. 502. The fact that the juror at one time had been a peace officer would not disqualify him. See Young v. State, 91 Tex.Cr.R. 511, 240 S.W. 930. However, if appellant had interrogated the juror relative thereto, he might have discovered such fact, but there is nothing to show that he was questioned on the subject. We, therefore, overruled this contention.

Appellant, for the first time in this court, complains of the trial court’s instruction to the jury to the effect that there was testimony adduced showing that appellant, some years prior to the commission of the alleged offense, was convicted of a misdemeanor and that if they considered said testimony at all, they could only consider it for the purpose of affecting his credibility as a witness. No objection was interposed by appellant to this charge. He contends, however, that it is fundamental error. We cannot agree with him in his contention. This was not such an instruction as violated a mandatory statute or vitally affected his defensive theory. It was but an instruction on a matter collateral or incidental to the case.

No reversible error 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 Motion for Rehearing.

GRAVES, Judge.

Appellant in his motion vigorously attacks the fairness of & certain juror and offers affidavits of soriie of the jurors rela7 tive to proceedings had during the deliberations of the jury. Upon being placed upon the stand, the major portion’of said jurors were not of much benefit to appellant’s theory relative to their misconduct. Much of the matters set forth as misconduct impress us as a fair consideration of the testimony presented to the jury; and some of the allegations in the motion for a new trial seem to be an effort to allow the jury to impeach their own verdict. Such cannot be done. See 29 Texas Digest, New Trial,

The testimony relative to the unfairness of the juror and his alleged enmity to the race to which appellant belonged is brought before us in a question and answer form, covering eighty-five pages, and we find no statement in the trial court’s approval thereof that it was necessary that same be submitted in such form.

However, suffice it to say, the matter relative to the prejudice of the juror was one that appealed largely to the discretion of the trial court. He saw the witnesses; he heard their testimony, and, under the conflicting and sometimes confusing testimony, surely he exercised his best judgment and was within his discretion when he overruled this motion for a new trial and refused to hold the juror an unfair or a prejudiced one.

We are of the opinion that the trial judge did not abuse the discretion confided in him by the law in overruling the motion for a new trial. See 4 Tex.Jur., p. 566, § 396, from which we quote: “A motion for new trial is addressed to the sound discretion of the trial court whose action thereon will not be disturbed on appeal save in those cases wherein the discretion has been abused. This is true whether the motion for new trial is made for mis-, conduct of the jury, for prejudice on the part of jurors, for disqualification of a juror, for refusal of a continuance or for newly discovered evidence.”

The motion for a rehearing will be overruled.


text:
    TOWNSEND v. STATE.
    No. 21392.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    S. H. Townsend, of Lufkin, Glenn Faver, of Jasper, and J. R. Bogard, of San Augustine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the theft of cattle. The punishment assessed . is confinement in the state penitentiary for a term of four years.

Appellant presents two propositions upon which he seeks a reversal. The first is that the evidence is insufficient to justify and sustain the conviction; and the second is .that the testimony relative to the conversation between Travis Parrish and Pud Miller in the absence of appellant was not admissible.' In view of the disposition we are making of the case, we deem it necessary to discuss only the first contention. In order to show the basis for the conclusion we have reached, we think it proper to briéfly set forth the testimony adduced upon the trial.

On the 25th day of June, 1939, while Travis Parrish was looking for his horses and traveling upon a public road, he came up to a gate leading into Amos Townsend’s pasture., A green-colored pick-iip truck was parked near the gate. He saw Amos and John Townsend, Pud Miller, Clint Dickey and the appellant, sitting in the shade of a tree and talking. He inquired of them if they had seen his horses. Appellant replied that they saw them up the roád a short time before. Parrish went up the road, but failing to find his horses, came back by the pasture gate. He then saw Pud Miller and John Townsend standing near the gate. They told him that they had seen his horses in the pasture at the top of the hill. This was in the opposite direction from where appellant said he had seen the horses. At that time, some twenty feet from the fence and inside of the pasture the witness saw three head of cattle. He inquired, “Whose cattle are those ?” Miller replied, “Those are Sam Williams’ cattle.” The witness did not know where appellant was at the time. Parrish did not at first recognize the cows that belonged to Sam Williams, but when Miller said they were Williams’ cattle, he then noticed the mark and brand on them from which he knew that they belonged to Williams. One was an old cow with a bell on, another was a red muley heifer and one was a horned heifer. These cattle were in Amos Townsend’s pasture in San Augustine County. Later that day, the witness passed a pickup truck going toward Amos Townsend’s home. In this truck were Pud Miller, Clint Dickey and the appellant. The witness did not see the truck any more that day; nor did he see the cattle any more. Neither did he know who put the cattle in Amos Townsend’s pasture. The witness had never seen Sam Williams’ cattle in that pasture before. He did not know where the appellant was living during the year 1939 and could not say that he had seen him down there prior to the time in question.

Mr. Leonard Hutto testified that on or about the 25th of June, 1939, he passed by Amos Townsend’s pasture and saw an empty truck near the gate, but did not see any persons near it; that some two and one-half or three hours later he met this truck with some cows on it going toward Zaval-la. There were two persons in the truck, but he did not notice who they were. He recognized the truck and knew that it was the same truck that he had seen parked near the pasture gate. He did not particularly notice the color of the truck but supposed it was a black pick-up. He thought it was a 1938-model Ford truck.

Sam Williams testified to losing the cattle described by the witness, Parrish, which he had seen in the pasture of Amos Townsend. Williams said that he did not give John Townsend or any other person his consent to take the cattle. Williams subsequently found the red muley heifer in the possession of Hays Goree in Madison County-

C. N. Goolsby testified that he lived at Crockett, Texas, and operated an auction ring there; that on the 27th day of June, 1939, Clint Dickey sold three head of cattle through the ring. One was sold to Vernon Marsh, one to Joe Lewis, and one to Carl Lediker.

Joe Lewis testified that he purchased one head of cattle through Mr. Goolsby’s auction ring from Clint Dickey on or about the 27th day of June, 1939, and sold the animal on the same day to Mr. Hays Goree.

Mr. Goree testified that on or about the time in question, he purchased a cow from Joe Lewis; that sometime later, Sam Williams came to his place, identified the cow as belonging to him and took her back with him.

The sheriff of San Augustine County found the hide of a large strawberry roan cow, branded with a Roman Four on the left hip, at the Port City Stockyards in Houston. This hide corresponded in color, size and brand with the cow which Williams had lost.

The appellant did not testify or offer any affirmative defense, but at the conclusion of the State’s testimony he moved the court to instruct the jury to return a verdict of not guilty. This motion was overruled, to which he in due time excepted.

From the foregoing testimony, it will be noted that there is no evidence which connects appellant with the taking of the alleged stolen cattle, nor with the possession or the. disposition thereof. All that the testimony shows is that he, together with‘four other men, was sitting in the shade of a tree near the gate leading into the pasture of Amos Townsend in which the alleged stolen cattle were at the time. There is no testimony from any source as to when the cattle were placed into the pasture, how long they had been there, nor by whom they were placed therein or removed therefrom. Consequently the evidence is wholly insufficient to establish the appellant’s guilt beyond a reasonable doubt. The general rule is that there must be competent evidence pertinently identifying the accused with the transaction constituting the offense charged against him to a degree of certainty greater than a mere probability or strong suspicion to justify a conviction. See Rios v. State, 69 Tex.Cr.R. 233, 153 S.W. 308; Yarbrough v. State, 69 Tex.Cr.R. 150, 151 S.W. 545; Navarette v. State, 103 Tex.Cr.R. 449, 281 S.W. 863.

Having reached the conclusion that the evidence is insufficient to sustain the conviction, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. GRAVES, Judge.

text:
    LATHAM v. STATE.

      No. 21399.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Rehearing Granted Feb. 19, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

It was charged by indictment that appellant while intoxicated drove a motor vehicle upon a public highway. Appellant waived a jury and under the formalities required by statute (Art. 10a and 11, Vernon’s Tex. C.C.P., Vol. 1) entered his plea of guilty before the court.

The record is before this court without bills of exception or statement of. fact. However, our attention is directed to the judgment arid sentence which present an anomalous situation.

The court found appellant guilty as charged and decreed that he be punished by confinement in the penitentiary for a “term of not less than one month nor more than one year.” When he pronounced sentence the court ordered that appellant be confined in the penitentiary for “one year.” It will be readily seen that the judgment and sentence are not in conformity, and we have no data upon which a reformation of the judgment or sentence can be based.

By Art. 802, P.C., Vernon’s Ann.P.C. art. 802, one of the punishments permitted for the “drunk driving” of an automobile upon the highways is confinement in the penitentiary “for not more than two (2) years,” no minimum time being specified. If the trial court was attempting in the judgment to give effect to the indeterminate sentence law (Art. 775, C.C.P., Vernon’s Ann.C.C.P., art. 775, then we observe two things wrong with it. (a) The punishment fixed in the judgment should be as a definite fixed period usually as named in the verdict of the jury, but in the absence of a verdict as fixed by the court. The provisions of the indeterminate sentence law should find expression in the sentence.

If the Court intended to fix appellant’s punishment at one year in the penitentiary,there being no minimum penitentiary time fixed by Art. 802, P.C., — the indeterminate sentence should be for not less" than one hour nor more than one year in the penitentiary. See Davis v. State, 125 Tex.Cr.R. 330, 68 S.W.2d 217; Watson v. State, 131 Tex.Cr.R. 44, 95 S.W.2d 414; Ward v. State, 136 Tex.Cr.R. 369, 125 S.W.2d 290; Martinez v. State, 137 Tex.Cr.R. 434, 128 S.W.2d 398, 131 S.W.2d 971. The sentence in the present case may not be reformed to so read because in conflict with the specific minimum time fixed in the judgment as “thirty days”.

There does not occur to us any way by which we may reform the judgment and sentence under the circumstances here present.

The record seems to demand a reversal, and it is so ordered, and the cause is remanded.

On Motion for Rehearing.

GRAVES, Judge.

This cause has been heretofore reversed because of a defective record in that the sentence and judgment were not in correspondence, and did not conform to the law nor with each other.

We now find from the State’s motion for a rehearing that the judgment actually entered, and a certified copy of which is properly presented to us, was for a period of one year’s confinement in the penitentiary. Under such a judgment this sentence can be reformed.

The State’s motion for a rehearing is granted, the judgment of reversal is set aside, and this sentence is reformed so as to provide for a sentence of confinement in the State penitentiary for not less than one hour nor more than one year. See authorities cited in original opinion.

As thus reformed, this judgment is therefore affirmed.


author: BEAUCHAMP, Judge.

text:
    WILSON v. STATE.
    No. 21396.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1941.
    Davis & Davis, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction in the county court of Denton County in which appellant was charged with theft of a pitcher pump and pipe, and assessed a fine of $50.

The transcript in this case consists of sixty pages. The attorney’s brief contains thirty pages, which is unusually well prepared and a thorough discussion of pertinent questions in the case. There are ten pages in the statement of facts. The value of the property is probably five dollars.

From a study of the statement of facts we are unable to determine how many people possess parts in this remarkable assembly of pieces of pipe and pitcher pump which has given rise to this prosecution. One thing is definite and certain, however —the allegation of ownership is in CarsoSullivan and he testifies, after full information on the subj ect, that he is not the owner. Furthermore, there isn’t the slightest evidence of theft in all of the state’s testimony. This is sufficient to dispose of the case.

If occasion demanded, we would be constrained to sustain practically all of the other complaints which appellant presents but it is sufficient to reverse the case on the ground that the evidence is insufficient to support a conviction.

The judgment of the trial court is reversed and the cause remanded.