author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    GRANT v. STATE.
    No. 21080.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied Oct. 16, 1940.

      W. C. Wofford, of Taylor, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

This is a companion case to that of N. F. Walker, alias Mr. Wallace, v. State, 141 S.W.2d 618, decided by this court on the 8th day of May, 1940, but not yet reported [in State reports]. The facts in the present case are in all essentials similar to those in that case. Therefore, we do not deem it necessary to reiterate the same here. A mere reference to that case is sufficient.

By Bill of Exception No. 1 appellant complains of the testimony given by A. P. Andres relating to .a certain conversation between the witness and N. F. Walker on the day in question tending to pave the way for the successful operation of a scheme existing between appellant and his co-conspirator to fleece inT nocent and unsuspecting people of their money. The testimony shows that appellant was maneuvering the victim, not only into a frame of mind, but also into .a physical position to be easily victimized. The bill is quite lengthy, covering five pages of legal-cap paper. We see no need- of setting out the alleged objectionable testimony. Any act done in furtherance of the original scheme or conspiracy during its pendency, even though it be out of the presence of one or more •of the co-conspirators, is admissible in •evidence. See Johnson v. State, 128 Tex.Cr.R. 12, 78 S.W.2d 965; Morphey v. State, 119 Tex.Cr.R. 77, 45 S.W.2d 1099; Williams v. State, 111 Tex.Cr.R. 378, 13 S.W.2d 112; Branch’s Ann.Tex.P.C., Sec. 694. Appellant seems to recognize the rule of evidence relating to acts and declarations of co-conspirators, in the absence of one or more of the conspirators, •during 'the pendency of the conspiracy. His contention seems to be, however, that no conspiracy between the alleged conspirators had been shown to exist at the time of the alleged acts and conduct of Walker. The existence of a conspiracy can seldom, if ever, be shown by direct and positive evidence. Their work is done in secrecy and under cover. Consequently, resort must be had to circumstances from which the existence of the conspiracy is logically deducible. Therefore, the conspiracy, cannot, as a general rule, be shown by one witness or one circumstance, but by many which, when connected up and woven into a chain, connect the parties in their unholy alliance. This evidence was one of the links in the chain of circumstances showing how the victim was led into the web as the spider led the fly into its web (by inviting the fly into its parlor).

By Bill No. 2 appellant complains of certain remarks made by the court in reply to an inquiry by appellant’s counsel if he might have a full bill of exception, to all of the testimony given by the complaining witness, Andres, relating to what Walker did and said in the absence of the appellant, Grant. This bill is qualified by the court who states in his qualification that no objection was made by appellant or his counsel to any remark by the court; that he merely objected to the testimony. The bill was accepted by appellant as qualified arid he is bound thereby. The bill as thus qualified fails to show any reversible error.

Bill No. 3 shows that the victim testified that he went to the bank and drew $1,200 for which he obtained from appellant twelve white chips representing $100 each, which he put into the pot; that when the game finally terminated, he had seventeen of the white chips in his pocket which appellant declined to cash, claiming that the witness had taken them from the table. He was then asked if he had known' that the chips were not going to be cashed (redeemed) would he have put his $1,200 into that kind of a game. Appellant objected to the question on the ground that what he would do and would not have done under the circumstances was immaterial and irrelevant and was an attempt on the part of the State to bolster up its own witness. We are of the opinion that this bill is without merit. Appellant was either told or induced to believe that the banker of the game would cash and re•deem the poker chips. Consequently, the State had a right to ask him if he had known that the chips would not be cashed would he have put up $1,200 for twelve chips ? It does not seem to us that it would require much intelligence to know what any man would do under such circumstances.

Bill of Exception No. 4 complains of the following testimony given by A. P. Andres, the complaining witness:

“I got in the car with Mr. Wallace and Mr. Wallace said, ‘I will take you home.’ And I said, ‘No, I don’t want you to take me home’; and we went up the highway a piece and he stopped and said, ‘Give me those seventeen white chips, and I will give you your money.’ And I told him that I wouldn’t do that. ‘I told him that I wasn’t going to give him these seventeen white chips.’ I said, ‘I won’t do that’; and he said, ‘Well, then get 'off.’ I said, ‘I won’t do either; you told me you would take me to town.’ And he reached in his hip pocket and said, ‘Damn it, I told you to get off, and I mean “git”.’ And I got off and when he started off Mr. Wilson was down there a piece.”

The witness further testified, over the same objections by the defendant and under the same ruling by the Court, on redirect examination with reference to the conversation as follows:

“I told him (Walker) that I was going to tell the officers; Walker at that time told me if I would give him those' chips he would go back and try to get Grant to give me my money back. This defendant had already gotten the money and Walker had to ask him for it. Mr. Walker said, ‘Give me the seventeen chips and I will go back and get the $1200.00.’ He was going to see Wilson; and I said, ‘No, I made you that proposition a half dozen times and you wouldn’t do it.’ And he said, ‘Get out of here’. And I said, T won’t do it.’ I said, ‘You told me you would take me back to town’; and he said, ‘Damn it, I told you to get off, and I mean it!’ Walker said he would have to go back and ask Grant to get the money. Yes, if he had had the money right there, he wouldn’t have had to go back and ask him — he would have had it on his person. He had to go back and ask the defendant whether or not he would give him the money. Question: Mr. Wofford asked you whether or not when you were coming in from Walburg to Bartlett — Walker didn’t tell you the defendant here was a big gambler — -I will ask you to state what kind of a man Walker told ' you the defendant was ? Answer: He- told me he was a big oil man. As to whether or not he said he was a big gambler; he said he was a big sport; that he would rather play cards than eat; that he was a big oil man.”

To ( which appellant objected on the ground that at the time of the alleged acts and conversations the parties had separated and the conspiracy had terminated. The court in his qualification of the bill states: “The Jury would have been warranted in finding that the conspiracy was not finally terminated until they had gotten away with the money, and the testimony of the State showed that the defendant and N. F. Walker left Bartlett; after refusing to pay for the seventeen white chips, in company with each other; and the State’s testimony further showed that they were together on a subsequent occasion engaging in a similar transaction for which the defendant stands charged in this case.”

In our opinion, the bill as qualified fails to show error. They had not yet obtained the chips from their victim which was a circumstance supporting his theory that after they led him into the poker game they induced him to give them money for the chips which were to be cashed or redeemed. They knew these chips might be used as evidence supporting the complaining witness as to the poker game, and it may have been a part of their original scheme by some ruse to dispossess the victim thereof and remove the mute and silent evidence. If so, the evidence was admissible. Moreover, the evidence shows that the loot had not 'yet been divided.

Bills of Exception Nos. 5 and 6 are, in our opinion, without merit and are overruled.

Bill No. 7 shows that Walker, one of the conspirators, appeared at Taylor about the time the alleged offense was committed and resorted to the same means, method and tactics to inveigle Jerry Drozda into a poker game with appellant as he did the complaining witness, Andres. This testimony was admissible for the purpose of. showing system and the general scheme of the conspirators.

In Bill No. 8 appellant complains of the testimony of Damon Sharp which is in effect similar to that given by Drozda. Walker used the same mea'ns and method to induce Sharp to engage in a poker game with appellant as he did Drozda. This testimony was admissible for the same reason as that of Drozda.

The testimony given by N. P. Schumann was also admissible as showing system and intent.

Bills of Exception Nos. 10, 11 and 12 are without merit.

By Bill of Exception No. 13 appellant complains of the following remarks by the Assistant District Attorney in his argument to the jury: “The evidence in this case shows that the defendant, L. B. Grant, was arrested at Jasper, Texas, and who was with him? This same N. F. Walker.”

Appellant objected to the remarks ’on the ground that there was no evidence in the record that at the time the defendant was arrested, N. F. Walker was with him and the same was highly prejudicial. There is no certificate by the court to the effect that Walker was not with appellant at the time. Such merely appears from the appellant’s objection. Hence, the bill is deficient and not subject to consideration. In the case of Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538, 539, this court expressly said: “The mere statement of grounds of objection in a bill of exceptions is not equivalent to, nor does it do away with the necessity for, a showing in such bill that the matters stated as grounds of objection are facts.” See Fowler v. State, 89 Tex.Cr.R. 623, 232 S.W. 515; also Tex.Jur., vol. 4, p. 309, § 215,

We think that the court’s instruction as to the law of principals was required. That appellant and Walker, alias Mr. Wallace, were acting together in the unlawful enterprise was abundantly shown by the evidence.

Appellant’s objection to the court’s charge on principals is without merit. It is our opinion that the facts of this case required an instruction by the court on the law of principals.

Finding no reversible error in the record, 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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of the motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The "motion for rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: KRUEGER, Judge. BEAU CPI AMP, Judge.

license: Public Domain

text:
    SPIVEY v. STATE.
    No. 21106.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Oct. 16, 1940.

      J. A. Collier and Charles Murphy, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

It appears from the record that on the 24th day of October, 1939, appellant was tried on three separate and distinct indictments, styled State of Texas v. Antone Spivey, Nos. 47,483, 47,485, and 48,487, in the District Court of Harris County, on a charge of receiving and concealing stolen property.

It seems that appellant entered á plea of guilty before the court in each of the three cases and was assessed a punishment of two years in the state penitentiary in each case. Thereafter, on the 4th day of November, appellant filed a motion denominated a motion in arrest of judgment and for leave to withdraw his plea of guilty.* In the conclusion of his motion he prays that sentence be not passed upon him; that he be permitted to withdraw his plea of guilty, and for such other and further relief as he may be justly entitled to.

It may be true that appellant did not denominate the document as a motion for new trial. Nevertheless, the entire context of the motion shows that he desired a new trial. The grounds specified in said motion, if true, would entitle him to a new trial. Therefore, it occurs to us that it does not make any difference what he denominated his plea. Whether it be,a motion in arrest of judgment or a motion for new trial, it is nevertheless a motion for a new trial. The court heard, considered and overruled the same, to which action the defendant then and there excepted and gave notice to the Court of Criminal Appeals of Texas. This brought the entire case before this court for review.

Article 12, C.C.P., as amended by Acts 1931, 42d Leg. p. 65, ch. 43, sec. 3, Vernon’s Ann.C.C.P. art. 12, reads as follows: “No person can be convicted of a felony except upon the verdict of a Jury duly rendered and recorded, unless in felony cases less than capital, the defendant upon entering a plea of guilty has in open Court in person and with the approval and consent of the Court and the State’s Attorney, as provided in Section 1 of this Act, (Article 10a of Code of Criminal Procedure of the State of Texas), waived his right of a trial by Jury. Provided, however, that it shall be necessary for the State to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the Court as the basis for its verdict, and in no event shall a person charged be convicted upon his plea of guilty without sufficient evidence to support the same.”

It is apparent from the foregoing article of the statute that in every case where the defendant enters a plea of guilty to the court that the State is required to introduce evidence showing the guilt of the defendant, and if the State fails in this respect the defendant is entitled to a new trial. Therefore, upon an appeal from such conviction the accused is entitled to a statement of facts in order to demonstrate to this court the State’s failure in having complied with the law.

On the 21st day of November, 1939, appellant tendered to the Hon. Whit Boyd, Judge of the Criminal District Court of Harris County, bills of exception and a statement of the facts adduced upon the trial in narrative form and requested that the same be examined, approved and filed as a part of the record in the case, which statement of facts was by the court delivered to the District Attorney. The -bills and the statement of facts were signed by the attorneys for the appellant when tendered to the court for approval, but the court failed and refused to approve the same and file them within the time prescribed by law, although requested to do so on several occasions, but he did file and approve a statement of the facts adduced upon the hearing of the motion for new trial. It occurs to us that appellant, without any fault on his part, was deprived of his bills of exception and statement of facts adduced upon the original trial. This court has many times held that when a defendant in a criminal case is deprived of a statement of facts without any fault on his part, the judgment of the trial court will-be reversed and the cause remanded. See 4 Tex.Jur. p. 450, sec. 312; also Little v. State, 131 Tex.Cr.R. 164, 97 S.W.2d 479; Brannan v. State, 137 Tex.Cr.R. 611, 132 S.W.2d 594; Seliger v. State, Tex.Cr.App., 138 S.W.2d 817.

From what we have said it follows that the judgment of the trial court be, and the same is, reversed and the cause remanded for a new trial.

PER CURIAM.

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

On Rehearing.

BEAU CPI AMP, Judge.

The state’s motion for rehearing in this case has been fully considered and we are of the opinion that the case was properly disposed of on original hearing, and that nothing new has been presented which requires further written opinion.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    Antone SPIVEY, Appellant, v. STATE, Appellee.
    No. 21107.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Oct. 16, 1940.
    J. A. Collier and Charles Murphy, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for receiving and concealing stolen property. The punishment assessed is confinement in the state penitentiary for two years.

This is a companion case to that of Antone Spivey v. State, 143 S.W.2d 386. The same grounds are presented here for a reversal of the judgment as in that case, and for the reasons therein stated the judgment of the trial court in the instant case 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.

On Rehearing.

BEAUCHAMP, Judge.

The state’s motion for rehearing in this case has been fully considered. We are of the opinion that the case was properly disposed of on original hearing and that nothing new has been presented which requires further written opinion.


text:
    Antone SPIVEY, Appellant, v. STATE, Appellee.
    No. 21108.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Oct. 16, 1940.
    J. A. Collier and Charles Murphy, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is receiving and concealing stolen property. The punishment assessed is confinement in the state penitentiary for two years.

This is a companion case to that of Antone Spivey v. State, 143 S.W.2d 386. The same grounds are presented here for a reversal of the judgment as in that case, and for the reasons therein stated the judgment of the trial court in the instant case 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.

On Rehearing.

BEAUCHAMP, Judge.

The state’s motion for rehearing in this case has been fully considered. We are of the opinion that the case was properly disposed of on original hearing and that nothing'new has been presented which requires further written opinion.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    MEADOWS v. STATE.
    No. 21151.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied Oct. 16, 1940.
    Ted Chilcote, of Tyler, for ^appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for ten years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.

KRUEGER, Judge.

We have re-examined the record in the light of the motion for rehearing filed by appellant and reached the conclusion that the proper disposition of the appeal was made upon the original submission. The motion is therefore overruled.

PER CURIAM.

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


text:
    LEE v. STATE.
    No. 21079.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Denied Oct. 16, 1940.

      Nossaman & Baker, of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin; for the State.
   KRUEGER, Judge.

Appellant was convicted for knowingly permitting a gaming device, commonly known as a.slot machine, to remain in his possession and on his premises under his control to be used for gaming purposes, etc. His punishment was assessed at confinement in the county jail for a period of thirty days.

The appellant was prosecuted under Art. 630, P.C., which reads as follows: “If any person shall knowingly permit any gaming paraphernalia, table, or device or equipment of a gaming house, of any character whatever to remain in his possession or on premises under his control or of which he is owner and to be used for gaming purposes, he shall be imprisoned in jail not less than thirty days nor more than one year.”

For the.first time in this court appellant challenges the constitutionality of the law under which he was prosecuted and convicted on the ground that the word “premises” is too indefinite and uncertain to make it operative as a penal- statute, and cites us to the case of Smith v. State, 99 Tex.Cr.R. 114, 268 S.W. 742, 743. The prosecution in that case was based on the Tick Eradication Law. This court, in passing on that statute, among other things, said: “The word ‘premises’ has many varied meanings and is governed largely by the setting and sense of the context when used, but there is no fixed legal significance attached to« it that would make it mean in all cases a house or a lot; a farm or a pasturé, or a given quantity of land. * * * This might mean that the owner of cattle could not move them from his cow lot across th*e fence to his pasture, or from one of his pastures across a road or fence to another,” etc.

It will be noted that in that case it is said that the meaning of the word “premises” is governed largely by the setting and sense of the context, and we think that pronouncement is correct. Therefore, we wquM not be justified to separate and isolate the word from the context in an endeavor to ascertain the legislative intent in the use and meaning of the word in the statute. It is obvious that the word “premises” in Art. 630, P.C., has a more restricted meaning than in the Tick Eradication Law. However, the statute under consideration makes it a penal offense for any person to knowingly permit any gaming device or equipment of a gaming house to remain in his possession or on his premises under his control or of which he is the owner arid to be used for gaming purposes. It will be noted that under the article of the statute in question, one who has a gaming device or equipment in his possession to be used for gaming purposes would be guilty whether he had it on the premises of his own or under his control or not. This statute, as we construe it, may be violated in three ways: First, by knowingly permitting a gaming device or equipment of a gaming house to remain in one’s possession to be used for gaming purposes; second, by knowingly permitting a gaming device to remain on premises under his control to be used for gaming purposes; and'third, by knowingly permitting a gaming device to remain on premises of which he is the owner to be used for gaming purposes. Therefore, if it should be conceded, which we do not do, that the word “premises” in this statute is too indefinite and uncertain in its meaning, it would not destroy and nullify the entire statute. In other words, if we should strike down the statute relating to premises under his control or in his possession, it would still leave the balance of the statute in force and effect.

Appellant next contends that the statute is inoperative on the ground that Art. 628, P.C., defines a like offense as that defined in Art. 630, P.C., but prescribes a different penalty. Upon a careful examination of both articles mentioned, we are forced to a different conclusion. They do not denounce the same acts as an offense.

• Appellant complains of the action of the court in permitting the State to prove by F. O. Mangrum and Joe D. Hall, two deputy sheriffs of Grayson County, that on the night of March 30, 1939, théy went to the appellant’s beer tavern located in the town of Bells in said county; that when they drove up and parked their car they noticed a slot machine being played and operated in the warehouse of appellant’s place of business. They entered the same, saw three men about the machine and saw one of them place a nickel therein and turn the lever. Thereupon, they took charge of the machine and carried it to the sheriff’s office, where it was kept until the trial of this case when it was offered in evidence. Appellant based his objection thereto on the ground that the evidence was immaterial, irrelevant and incompetent because the officers went into the appellant’s place of business without a warrant, searched the premises and seized his slot machine. Appellant owned and operated a beer tavern, a public place, which was an implied invitation to the public generally to come therein. Hence, they were not illegally on appellant’s premises. They were invitees. They saw the machine in operation before they entered appellant’s place of business, and they also saw it in operation after they had entered it.

Under Art. 212, C.C.P., a peace officer or any other person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. In the instant case, we think appellant could have been prosecuted under Art. 619, P.C., because he kept a slot machine for the purpose of gaming, a felony. Consequently, this evidence was legally obtained and admissible notwithstanding the State saw proper to prosecute him for a misdemeanor. Therefore, when the officer saw it in operation they had a legal right, without a warrant, to arrest appellant and take charge of the gambling device. Hence, the gaming machine was not improperly admitted in evidence.

Appellant complains of the following remark made by the Assistant District Attorney: “The State has proved that Joe Lee had this slot machine on his premises and nobody denies it.”

If said remark was in fact made, appellant made no objection thereto at the tipie. He raised the question for the first time in his motion for a new trial. It is our candid opinion that appellant waived his right under the law. A person charged with crime may waive any legal right except a trial by jury in felony cases and he can even waive that except in capital cases. See McMillan v. State, 122 Tex.Cr.R. 583, 57 S.W.2d 125. However, the evidence shows that there were at least three persons playing the slot machine when the officers walked in and who were present when the officers took possession of the machine and carried it away. Therefore, if the remark was made and an objection promptly interposed, it would not have been of any avail to appellant, since there were others present who might have been called to deny it.

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

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of appellant’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    GANDY v. STATE.
    No. 20990.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    On Rehearing June 26, 1940.
    Rehearing Denied Oct. 16, 1940.
    C. S. Farmer, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault to murder without malice aforethought and punishment assessed at one year in the penitentiary.

This is the second appeal. The opinion on the first appeal will be found reported in 137 Tex.Cr.R. 412, 129 S.W.2d 661.

The only questions presented are the contention that the evidence does not support the verdict and claimed errors in the trial court’s instructions to the jury.

The purported statement of facts on file here is endorsed as the original statement of facts. It is certified by the Court Reporter, but it is signed only by counsel for appellant and is not approved by the trial judge.- Without his approval the statement of facts may not be considered. See authorities cited in Note 24 under Art. 760, Vernon’s Ann.Tex.C.C.P.; Branch’s Ann.Tex.P.C., Sec. 596; 4 Tex. Jur. p. 419, Sec. 287.

It is apparent that without a statement of facts this court can neither review the sufficiency of the evidence, nor appraise the criticism of the trial court’s instructions to the jury.

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

This cause has been heretofore affirmed, and no consideration was given to the statement of facts because the same was not signed and approved by the district judge who tried the case. It has been made to appear that the signing of such statement was but an oversight upon the part of the district judge, but that the same had received his approval at the proper time. The former judgment of affirmance will now be set 'aside and the case considered upon its merits.

This case comes before us without any bills of exceptions, but with numerous objections and exceptions to the court’s charge, consisting of seventy paragraphs, occupying twenty-seven pages of the transcript; many of which objections, however, were waived by appellant’s attorney in his brief.

We have carefully gone over-these objections to such charge, as well as having read the court’s charge and attempted to analyze such objections in conjunction therewith. We note that the trial court changed his charge in some possibly objectionable features and finally delivered a very comprehensive charge on every conceivable phase of the law that was called for by the facts.

Appellant’s defense consisted of self-defense and defense of his brother W. W. (Bill) Gandy.

Appellant objects to the court’s charge on the law of principals, yet it is shown by the facts that while Bill Gandy was fighting with the injured party Harris, Bill Gandy called to his brother, the appellant, to “cut him,” and “let’s kill him while we have got him,” and the facts further show, from the State’s standpoint, that while Bill Gandy was fighting in - front of Harris, Albert Gandy, the appellant, cut Harris in the- back; that when Hams would turn to fight Albert, Bill would attack him. That the cuts on Harris were serious is shown and not denied. Practically these identical facts have been reviewed by us twice previously. They have been before us in a former appeal of this case, reported in 137 Tex.Cr.R. 412, 129 S.W.2d 661, and again in W. W. (Bill) Gandy v. State, in 140 S.W.2d 182, 183. At neither of the previous trials did the insufficiency of the facts make any impression upon us, nor do we deem them insufficient now. Unquestionably appellant and his brother approached the complaining witness for the purpose of provoking a difficulty with the witness, and were successful in their purpose. The appellant admits that he cut Harris three times with his knife, and the doctor said these wounds were serious and dangerous ones. Appellant pleaded self-defense and defense of his brother, and this issue was fully and fairly submitted to the jury who found against such plea, and found him guilty of assault to murder without malice. We do not think it lies within our province to disturb this- verdict upon these thrice reviewed facts.

Finding no error in the record, the judgment is affirmed.

On Appellant’s Motion for Rehearing.

HAWKINS, Presiding Judge.

In view of appellant’s motion for rehearing we have again examined the court’s charge. When taken in its entirety it does not appear subject to the exceptions against it to the extent of demanding a reversal.

The motion for rehearing is overruled.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    WRIGHT v. STATE.
    No. 21152.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    Rehearing Denied Oct. 16, 1940.
    Jerome J. Byrne, of Lampasas, and A. R. Eidson, of Hamilton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was, charged with receiving and concealing stolen property, knowing same to have been stolen, and upon conviction received a penalty of two years.

There are no bills of exceptions, and the only proposition advanced as error is the failure of the facts to show the quantum of proof in order to uphold this verdict.

That the sheep in question was stolen from Mr. Conley is shown by-the testimony of the -two confessed thieves, and that appellant knew the same to have been stolen is also shown by them. They were accomplices, and so charged to be by the court, and it was also charged that their testimony of necessity had to be corroborated by other testimony, etc.

Appellant took the stand and testified that he was engaged in the business of selling and trading, and that he bought this sheep from these witnesses, Lee and Singleton, without any knowledge upon his part that same had been stolen. That he sold this sheep, among others, in good faith, not knowing same to have been stolen. There was no other fact connecting nor tending to connect him with a guilty knowledge of the theft of this sheep other than its possession, save the fact that both of these accomplices testified that appellant told them to steal some sheep and bring them to him and he would pay for them. Each accomplice corroborated the other, but such is not sufficient. See Branch’s P. C., Sec. 718, p. 367, as a corroboration of the testimony of either.

The possession of recently stolen property has been held to be a sufficient circumstance to show the theft of same by the possessor, nevertheless it has also been held that such possession is not' sufficient to show that such property was received from the thief and concealed, knowing the same to have been stolen. We quote from Hagan v. State, 132 Tex.Cr.R. 338, 104 S.W.2d 857: “The testimony goes no further than to show that appellant and Hoifelter were jointly in possession of the property that had been recently stolen from the prosecuting witness. Their unexplained possession of said recently stolen property might warrant a conviction for theft or burglary, but such possession alone does not. sustain a conviction for fraudulently receiving and concealing said property. Marquez v. State, 126 Tex.Cr.R. 132, 70 S.W.2d 426; Murphy v. State [130 Tex.Cr.R. 610], 95 S.W.2d 133.”

Again we quote from Marquez v. State, 126 Tex.Cr.R. 132, 70 S.W.2d 426, 427: "In the case of Castleberry v. State, 35 Tex.Cr.R. 382, 33 S.W. 875, 60 Am.St.Rep. 53, this court, speaking through Judge Davidson, said: ‘Will the bare fact that the accused received the stolen property be sufficient proof, standing alone, that he knew the property was stolen when he received it? It will not. * * * Each case must depend upon its own facts. But we do hold that the bare fact of receiving stolen goods is not sufficient to show guilty knowledge.’ ”

Appellant proved by many witnesses a good reputation for honesty and fair dealing, and' also for truth and veracity.

It was also shown that the two confessed takers of this sheep failed to implicate appellant until they found out that he had told the officers that he purchased this sheep, among others, from them in good faith.

We do not think there is shown any testimony, outside that of the accomplices, tending to connect this appellant with the theft of this sheep.

The judgment is therefore reversed, and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

After a careful re-examination of the record in the light of the State’s motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM

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


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    REESE v. STATE.
    No. 21008.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    Rehearing Denied Oct. 16, 1940.

      William H. Scott and King C. Haynie( both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a jury for keeping a room and place for the purpose of being used as a place to bet and wager, and to gamble with dice, and he was awarded a penalty of two years in the penitentiary.

The facts show that the officers looked through the windows of a house controlled and occupied by appellant and saw a dice game in progress. They broke into the house and some one extinguished all the lights. The officers turned the lights on and found a fully equipped dice table, with what is called a “do and don’t” diagram thereon, held with thumb tacks, and there was also present on said table all the paraphernalia that usually go with a well-' equipped dice table, such as a “puck”, chips, a croupier’s stick and dice.

Appellant’s defense was that he had invited some friends to his house for a party, and after they had arrived, and before any gambling began, he had gone to sleep on a divan in the room, and had nothing to do with the gambling, nor did he know any gaming was going on at his house. The State attacked such testimony, and probably made some inroads thereon, according to the jury’s verdict.

Appellant’s bill of exceptions No. 1 is very voluminous, and is concerned with the search warrant introduced before the court, as well as the testimony adduced by the State, found by virtue of such warrant, as contended by appellant. This testimony was admissible, we think, on two other grounds than by virtue of the search warrant. In the first place the officers saw the gambling going on, and the gambling paraphernalia, so they say, before they entered the house, and regardless of the right to seize such paraphernalia without a warrant, they certainly had a right to seize the appellant, he being in the act of committing a felony in their presence. See Art. .312, C.C.P. There are no property rights in gambling paraphernalia. Such paraphernalia is a public nuisance, and possession thereof can not be recovered in a suit therefor nor can damage for the destruction of such be recovered in any court in this State. See Art. 634, P.C.

Again we note that appellant took the witness stand and admitted that the gambling paraphernalia, testified to by the officers to have been found in his house, was in said house at the time the raid was made, although he denied ownership of it, and denied knowledge that any game was in progress. We think this testimony of what the officers found was admissible, and overrule bills Nos. 1 and 2.

Bill of exceptions No. 3 complains of the court’s refusal to charge the jury, in substance, that if appellant did not know that a dice game was being played in his residence, and had no interest therein, then he should be acquitted. We think that the main charge of the trial court properly protected appellant’s rights as contended for above in the following charge: “You are further charged that if the defendant permitted the use of his home for the association of certain persons, without knowledge that such persons would operate a dice game therein; or if after such persons gathered at his premises, one or more of them operated a dice game, and the defendant though present had no knowledge of said dice game or interest therein;— or if you have a reasonable doubt whether or not such be the facts, you will acquit the defendant.”

We also think that the above quotation of the court’s charge will dispose of his bill No. 4, which is largely a repetition of his bill No. 3.

Bill of exceptions No. 5 is an exception to the first paragraph of the trial court’s charge wherein the court practically quoted the statute in full under which this prosecution is based, which was also a quotation from the indictment in this cause. Such quotation is alleged to be duplicitous in that it alleges that appellant “did keep and was interested in keeping” certain premises for gaming, etc. We are not impressed with the thought that there are two offenses charged in such a phrase, but think that such allegations are but a conjunctive method of charging the same offense.

Mr. Branch in his Penal Code, p. 259, says: “Duplicity is the joinder in the same count of two or more separate offenses, or the joinder in the same count of two or more phases of the same offense where the punishment is different, * * citing cases.

Again on page 261 he says: “When the punishment is the same, an indictment is not bad for duplicity because it charges in the same count several means of accomplishing the same result,” citing numerous cases.

We also note that such an allegation was contained in the indictment in the Antner case, Antner v. State, 137 Tex.Cr.R. 123, 128 S.W.2d 64.

Appellant’s bill of exceptions No. 6 is a complaint relative to that portion of the court’s charge as to the law of principals, in which it is claimed that such “charge is in the abstract form, and does not charge this defendant, or comport and conform to the facts in this case, with reference to the presence of this defendant at the scene of the offense charged in the indictment.” In the light of this quoted objection we think that no error is shown in this bill. It is overruled.

In the motion for a new trial there was testimony heard relative to the search warrant'in the possession of the officers at the time of this raid on appellant’s house. We see no error evidenced in said testimony, ■nor do we think such warrant was material in this cause, as we have heretofore said.

Appellant contends that he has been indicted under the wrong statute. That if he is guilty of any violation of the law, that such should have been under Art. 627, P.C., rather than Art. 625, P.C., as herein utilized, and he cites us to cases that are claimed to support his contention. Many of such cases are fact cases alone, some of them holding that mere presence .alone at a gambling game would not be evidence that the accused kept such place for the purpose of gambling. With many ■of appellant’s propositions under such, authorities we find ourselves in accord. However, when a question of fact arises, most cases are usually judged upon the particular facts presented.

We think Art. 625, P.C., properly denounces the offense here proven, and that the facts herein presented would not be pertinent to Art. 627, P.C., which we ■quote: “Whoever knowingly permits property or premises of which he is owner, or which is under his control, to be used for any purpose mentioned in the two preceding articles, shall be confined in the penitentiary not less than two nor more than four years.”

It is also worthy of observation that appellant denies that he knew anything about any game being played in his house.

We also note that the facts show that what is commonly called a “crap” table was found in appellant’s house, fully equipped with the usual appurtenances thereto, as well as diagrammed for a “do and don’t” dice gambling game, and gambling was progressing and lots of noise was made within a few feet of where appellant seems to have been peacefully sleeping, although he testified that “while I was asleep they were making a lot of noise and having a lot of fun.” We held in Sanchez v. State, 90 Tex.Cr.R. 156, 233 S.W. 982, 984, that: “It was also urged against said indictment that it did not allege that persons did bet and wager at games played with cards or dice. This is not necessary, and has been so held. Article 559, Vernon’s P.C. [now art. 625 et seq.], prohibits the keeping of a place for the purpose of being used as a place to bet or wager; and an offense would be committed by one who kept said place for such purpose, regardless of whether the purpose had been carried into actual execution and the place used for the purposes intended, or not. Illustrating this: One might fit his house with paraphernalia for gambling, and advertise its purpose, attempt to induce patronage, and be found guilty of keeping, etc., though no one had yet engaged in actual games therein.”

To this same effect is the case of Spears v. State, 109 Tex.Cr.R. 389, 4 S.W.2d 979. Regardless of the playing of any unlawful games, the fact remains that this house was equipped for playing such games, and that it was appellant’s house. That he was present while the dice game was going on is .shown by witnesses, and it was also shown that some one phoned from appellant’s liquor store, and appellant told him to “come on, everything was O. K.,” and witnesses said that appellant was there and saw what they were doing while they were shooting dice on this table; that he would occasionally answer the telephone or bring in a cold drink or something. “As any new players came in, I am pretty positive it was Mr. Reese .who went to the door.” Appellant’s co-indictees Ka-vany and Koehler seemed to be banking the game. Reese did not play. The paraphernalia was there when the witnesses arrived, and some of them were strangers to each other.

We think this appellant was properly charged under Art. 625, P.C., and we also think the facts from the State’s standpoint show that he kept this place for the purpose of exhibiting this gambling game with dice.

We perceive no error in the record, and the judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant’s motion for rehearing insists that there was error in the charge of the court, in that the court instructed the jury that if .the defendant had no knowledge of the dice game, or interest therein, or if they had a reasonable doubt thereof, he should be acquitted. This we consider to be' a proper charge affimatively presenting the appellant’s defense. It is distinguishable from Crawford v. State, 114 Tex.Cr.R. 8, 23 S.W.2d 368, in that Crawford did not have such affirrnative defense. Crawford knew of the still which he was charged with operating but claimed that it belonged to another. The defense is different and calls for a different affirmative charge presenting such defense.

We adhere to the original opinion. The motion for rehearing is overruled.


author: HAWKINS, Presiding Judge. GRAVES, Judge.

text:
    JOHNSON v. STATE.
    No. 21109.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Rehearing Denied Oct. 16, 1940.
    J. Meek Hawkins, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for tapping a storage tank; punishment assessed being one year and six months in the penitentiary.

Prosecution is under Art. 1111b, Vernon’s Ann.Tex.P.C., Vol. 2 Acts 1933, 43d Legislature, Chapter 219, page 732.

Section 2 of said Article reads as follows : “Any person who shall unlawfully tap any pipe line, conduit, or storage tank, constructed for the purpose of transporting or storing crude oil, gasoline, naphtha, natural gas, casinghead gas, or any petroleum product without the consent of the owner, and with intent to injure such pipe line, conduit, or storage tank, or to permit the contents thereof to escape, or with intent to appropriate any portion of the contents of such pipe line, conduit, or storage tank to the use and benefit of the person tapping the same, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than one nor more than five years.”

Section 1, as it applies to the offense here charged, reads: “The term ‘Tapping’ as used in this Act, is the making of any connection with * * * a storage tank constructed for the purpose of * * * storing * * * gasoline * * * whereby such * * * gasoline * * * is permitted or caused to escape from such * * * storage tank, whether such connection be made by opening a valve therein, removing any plug * * * therefrom * * * whereby any such contents of such * * * tank, is permitted to escape.”

Omitting formal parts, the specific charge against appellant is that he did: “ * * * unlawfully tap one gasoline storage tank in which there was stored gasoline, by pulling one plug one and one-half inches in diameter out of the'drainage valve on the drainage manifold of storage tank number 562, and by inserting in said drainage valve one bushing one and one-half inch in diameter attached to a nipple, which said nipple was attached to a rubber hose one inch in diameter, said gasoline storage tank and contents then and there belonging to and being in the custody of and under the control of R. B. Thacker, without the consent of the said R. B. Thacker, the owner thereof, and with the intent then and there to appropriate the contents of said storage tank, to-wit, gasoline, to the use and benefit of him, the said B. F. Johnson.”

The only question necessary to consider is appellant’s contention that the evidence is not sufficient to support the verdict and judgment. No evidence was offered for appellant.

Tank number 562 mentioned in the indictment was one of 13 tanks belonging to the Sinclair Refining Company on what was called the South Tank Farm in Harris County. The tanks were under the control, care and management of Mr. Thacker. The tanks are numbered consecutively from 560 to 572, east and west. Tank No. 562 was a 93,000-barrel tank and was the third tank in line from the east. Around this tank farm was a Cyclone wire fence 6 or 7 feet high with 3 strands of barbed wire at the top. It would be difficult for anyone to climb over the fence, but there were ditches under the fence left for drainage purposes. The farm could be entered by crawling under the fence through these drainage ditches. The tanks were back about 100 feet from the fence. Along the side of the farm was a crude road or trail; not a public road, but it could be used by automobiles and trucks. The west end of the road was not open and vehicles entering from the east were compelled to turn and come out the same way they entered. The company had been missing gasoline, and employees had been instructed to be on the watch.

On the night the incident under consideration occurred at about nine o’clock, Mr. Gann, an employee, was gauging the oil in tank No. 560. He saw a tank truck pass down the road mentioned, going west down behind the tanks. Fie reported the matter to Mr. Cowan, a watchman for the company, and the two. of them went in Mr. Cowan’s car to investigate. As they turned into the road they saw from the lights of their car a gasoline truck parked against the fence opposite tank No. 562. The truck started up hurriedly and moved east meeting their car. They drove in front of the truck, causing it to stop. It had moved perhaps 50 feet from where it had been originally parked opposite tank No. 562 and the' truck tracks led back to that point. Appellant was driving the truck. It had three compartments. The one next to the cab was full of gasoline and the middle one about half full. The lids on all of the compartments were open. From the full compartment something had run down the side of the truck tank. Both Gann and Cowan saw someone whom they did not recognize run away from Tank No. 562, at which time appellant was in the truck. Appellant declined to tell who was with him, and refused to make any explanation whatever when he was stopped.

At a point opposite Tank No. 562, and some 50 feet west of the place where the truck was stopped by Gann and Cowan, was found 300 feet of one-inch hose. It ran from the road under the fence and around the tank to the drainage valve. The end of the hose outside the fence was equipped with a dispensing device similar to that used by filling stations in putting gasoline into automobile tanks. The other end of the hose was about 3 feet from the drainage valve on Tank No. 562. On the end of the drainage valve was inserted a plug which ordinarily was screwed in so tight it could only be loosened with a wrench. The valve itself was found closed, but the plug was so loose it could be turned with the fingers. Underneath this plug was a large spot wet with gasoline. The bushing on the end of the hose would fit into the connection when the plug was removed. This 300 feet of hose did not belong to the tank farm and no hose similar to it was used about the farm.

Tank No. 562 contained a special grade of gasoline prepared for export trade. It was unlike any other gasoline in any of the other tanks on the farm, and unlike any other gasoline sold in Houston. When the 300 feet of hose was rolled up about a quart of gasoline was obtained from the hose; another quart was taken from the full compartment on the truck, and still another quart was taken from Tank No. 562. These three samples were delivered to the man at the Sinclair plant whose duty it was to test the gasoline as to distillate, and he testified that the “contents of all three bottles seemed to be identically the same.” The three bottles were then delivered to the man whose business it was to test the gasoline “as to the antiknock or octane count,” and he testified as follows: “I made a test of those three samples. They tested practically the same as to octane. The octane of all gasoline is not the same. The octane count is a measurement of anti-knock quality of the particular gasoline. The three bottles tested virtually the same. I know the kind of gasoline tank No. 562 contained, and what its octane was. That tank contained our export quality gasoline. The other tanks in the farm do not contain gasoline of the same octane as that particular tank.”

While no witness actually saw appellant tap tank No. 562, the circumstances proven and heretofore set out seem convincing that appellant, acting perhaps together with the unknown party seen running away from the tank, did tap it. The evidence, to our minds, measures up to the requirements as to circumstantial evidence, and excludes every reasonable hypothesis save appellant’s guilt.

The only bill of exception brought forward complains of the argument of the Assistant District Attorney. We discover no serious objection to the language complained of. The trial court, probably throttgh an abundance of caution, instructed the jury not to consider the argument. If it was objectionable in the first instance it was not of such harmful character but that the court’s instruction cured the error, if any.

The judgment is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again urges the insufficiency of the evidence to show that any gasoline was lost by the Sinclair Refining Company out of tank No. 562. 'It is worthy of note, however, that the plug in the pipe coming from such tank, which had been tightly screwed in prior to this occasion, was at the time inquired about but loosely screwed in so that same could be unscrewed with one’s .fingers; and also that there was freshly spilled gasoline underneath where this plug was located. It is also worthy of note that one end of this hose was found near this spilled gasoline, and the other, end near where this truck of appellant’s was standing, when he was approached, by the two special policemen. It is also worthy of note that the hose contained a quantity of special high grade export gasoline, not sold by the Sinclair Company in Houston but only in export trade, and further there was freshly spilled gasoline on the outside of appellant’s truck, and all three compartments of such truck had the hinged doors thereof -open; one compartment thereof filled with gasoline, and another half full therewith.

Taking all the circumstances into consideration, it seems to us that they meet the requirement demanded by the law in that they exclude every other reasonable hypothesis than that of the appellant’s, guilt.

The motion is overruled.


author: BROWN, Justice.

text:
    ANDERSON-BERNEY BLDG. CO. v. LOWRY.
    No. 14103.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1940.
    Rehearing Denied Oct. 4, 1940.
    Marvin Simpson and Robert Harrison, both of- Fort Worth, for appellant.

      H. S. Lattimore, of Fort Worth, for appellee.
   BROWN, Justice.

Appellee, R. E. Lowry, brought suit against appellant, Anderson-Berney Building Company, seeking to recover damages for personal injuries .alleged to have been sustained by him in the defendant’s building, at a time when he was doing a painting job for the defendant, and he alleged that one Countryman, who was the manager of defendant’s building, “approached plaintiff in said building and unknown to plaintiff, who was at that time working and engaged in carrying out a contract with the defendant, and said Countryman struck plaintiff in the back and on the shoulder and in defiant tones, accompanying said blow, demanded of plaintiff why he did not get to work.” He further alleged that Countryman is a man of huge stature, has been employed by the defendant for several years, “and he was well known to be a man who used physical violence upon those persons who are in the building of defendant and employees or contractors, or employees of contractors, and if not actually known, could have been easily ascertained, and would have been known by the exercise of ordinary care, and the act of the defendant in retaining an employee, the said Countryman, at the time the said plaintiff was in the building and on September 8th, 1938, was negligence and the proximate cause of the injury to pjaintiff.”

The defendant answered formally and specially that Countryman was only the building engineer and had no authority or control over the work in which the plaintiff was engaged, or over the plaintiff. That if Countryman did the act of which plaintiff makes complaint, it was not done in the performance of his duties, and same was done in excess of his authority and outside of the scope of his duties; and further that any such act, if done, was nothing more than playfulness on-the part of Countryman, and was purely personal.

The defendant further pleaded that Lowry made application for Workmen’s Compensation from the Insurance Company who carried such insurance for defendant, and that Lowry represented himself to be an employee of the defendant, and was paid compensation", and that he executed a release in which he released the insurance carrier and the defendant from all further liability for the alleged injuries; that plaintiff is estopped in this suit because of his prior acts.

To this answer the plaintiff pleaded:

“Whatever contracts or statements the plaintiff may have signed in connection with the Workmen’s Compensation Insurance "Company carried by the defendant were in fact only to comply with the request and instructions of the agent of said Workmen’s Compensation Insurance Company and defendant, and the said agent was in fact informed by plaintiff that said statements were not true, and the said agent represented and agreed that it was understood that same were not true but were to be so recited in order that settlement with said Massachusetts Bonding & Insurance Company insofar only as any possible liability of it for workmen’s compensation insurance might be carried out, which had been already agreed on, and was accomplished and binding prior to the' time that such statements, if any, were made by the plaintiff, as pleaded by the defendant in its said answer, 'such agent being one Wehmeyer to whom this plaintiff was directed by the defendant to go, and settlement of Three Hundred ($300.-00) Dollars agreed on and paid by the Massachusetts Bonding and Insurance Company was only to relieve the said insurance company of any liability as carrier of workmen’s compensation insurance under article 8306 et sequentia of the statutes of Texas, and was wholly inadequate compensation to 1 his plaintiff for his injuries and was understood by the plaintiff and defendant to be inadequate and was only a settlement desired by the said Workmen’s Compensation Insurance Company of any possible liability as such that might arise from a misconstruction of the facts of the case, and was offered by the said insurance company and accepted by this plaintiff with full understanding by all parties that this plaintiff did not claim to be an employee of the defendant, and there were no facts raising any issue of such relationship except that after the work was completed, during the course of which this plaintiff suffered the injuries complained of in this suit, the defendant refused to pay plaintiff the contract price which he had set and which had been agreed on, and instead paid plaintiff an amount equivalent to wages for the time- employed, and refused to pay more although the plaintiff protested and insisted that such payment was a breach of the contract made by plaintiff and defendant at the time the work was begun, and if in fact the said contracts signed in connection with the compromise with the Massachusetts Bonding and Insurance Company have any legal right on their face other than as herein pleaded, then same were a fraud perpetrated upon this plaintiff by the said defendant and the said Massachusetts Bonding and Insurance Company and their agents, the said Douglas and Wehmeyer, who induced the plaintiff to believe the facts to be as hereinabove pleaded and represented same to be so, and induced this plaintiff to sign said instruments believing same to have no other effect than as above pleaded, and this plaintiff would not have signed same if he had not been so informed and had not so believed.

“Wherefore, plaintiff prays as in his original petition.”

At the close of taking testimony, the defendant requested a peremptory instruction, which was refused.

The cause was submitted ,to the jury on special issues and the following findings were made: (1) That plaintiff was an independent contractor when he fell, (2) “that the act of the defendant’s employee, Countryman, in causing the plaintiff to fall on the occasion in question, was negligence on the part of the said Countryman”, (3) such negligence was a proximate cause of plaintiff’s falling, (4) “that Countryman, in causing the plaintiff to fall on the occasion in question, was acting within the scope of his employment”, (5) “that at and prior to the time of the plaintiff’s falling on the occasion in question that Countryman was in the habit of using physical violence upon persons who were employees or contractors of the defendant”, (6) this habit was known to the defendant, (7) that defendant was negligent in retaining Countryman in its employ, (8) such negligence was a proximate cause of plaintiff’s falling, (9) plaintiff sustained an injury to his hip at the time he fell on the occasion in question, (10) his damages were fixed at $13,000.

In answer to the only defensive issue given by the trial court and requested, the jury found, “that in causing the plaintiff to fall on the occasion of the accident Countryman was not acting in playfulness and that his action was not personal as distinguished from the performance of the duties which he was engaged by the defendant to perform.”

Judgment was rendered for plaintiff, hence the appeal.

Taking the view that we do of this record, we shall not discuss all of the questions laid before us, but. our conclusions will be bottomed on a few controlling issues. There is nothing new in those not discussed and we pretermit discussion of such.

We shall not attempt to discuss the assignments of error in their order as presented.

Special Issue No. 5, submitted over the objections of defendant, is: “Do you find from a preponderance of the evidence that at and prior to the time of the plaintiff’s falling on the occasion in question that Countryman was in the habit of using physical violence upon persons who were employees or contractors of the defendant?”

The objection urged against this issue is, “that this issue is irrelevant and has no proper part in this case and tends to confuse the jury, and to put into their minds for consideration a question which is not relevant or pertinent, to the defendant’s detriment and injury.”

The further objection was made, “that there is no sufficient evidence in the record to warrant the submission” of such issue.

These objections are brought before us in assignments of error Nos. 25 and 28, respectively. We believe both assignments of error are well taken.

It is impossible to escape the conclusion that plaintiff intended by his averments to plead that Countryman committed an assault upon him, accompanied by words and tones exhibiting defiance. “Defiant” means full of defiance, and “defiance” means “provoking to combat — a challenge —a declaration of hostilities.”

“Violence” is force, physical force; force unlawfully exercised. Bouvier, in his Law Dictionary, 2 Bouv.Law Diet., Rawle’s Third Revision, p. 3402, defines “violence” as: “The abuse of force. That force which is employed against common right, against the laws, and against public liberty.”

We have read the Statement of Facts, and we cannot find evidence to support said Issue No. 5. The most that can be said of the testimony in its entirety is that Countryman pranked or played with some of the persons who were employed by or engaged to do work for the defendant.

The record is devoid of any testimony tending to prove that Countryman exhibited ill will toward the employees or persons working for the defendant, or ever struck, or used violence on them, under circumstances which evidenced a display of anger or ill will.

Plaintiff’s suit is not bottomed on the theory that Countryman is a very large man who, while on duty and during business hours, plays roughly with other employees and persons engaged by the defendant to work on the premises, and, because of his great strength and peculiar propensity, injures and hurts such persons, and that this was known to the defendant, who negligently kept him in its employ, knowing that these other employees and persons were subjected to his rough handling and thus daily faced probable injury at his hands.

No such case is presented or attempted to be presented.

It cannot be said that the submission of this irrelevant issue, unsupported by testimony, was not harmful to the defendant.

The act of the court in submitting the issue is tantamount to advising the jury that the evidence on such issue is sufficient to require its submission, and the finding by the jury that the issue in fact exists, when the evidence does not support it, compels a reversal of the cause.

We will next consider the assignment of error which attacks the finding by the jury, in answer to Issue No. 4, that Countryman in causing plaintiff to fall was acting within the scope of his employment.

The issue is: “Do you find from a preponderance of the evidence that Countryman in causing the plaintiff to fall on the occasion in question was acting within the scope of his employment, as that term is defined for you in paragraph IV above ?”

The defendant’s assignment of error urges that: “The finding of the jury to special issue N.o. 4 was contrary to the overwhelming preponderance of the testimony, and was unsupported by the testimony, in that the uncontradicted testimony shows that Countryman was not acting within the scope of his employment, and was not engaged in the furtherance of any of the duties which he was employed to perform, at tfie time of causing the plaintiff to fall; but shows, to the contrary, overwhelmingly and convincingly, that Countryman’s act which overbalanced the plaintiff and caused him to topple over, was nothing more than a crude instance of pranking and playfulness.”

This is presented by the 29th assignment of error.

The court instructed the jury: “An employee is acting within the scope of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed, or an act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the act or a natural, direct and logical result of it.”

Such is the guide given the jury for their consideration in arriving at an answer, from a preponderance of the evidence.

In the first place, there is no testimony even- tending to show that, at the time Countryman slapped the plaintiff on the back, or shoved him, causing plaintiff to fall, Countryman was “engaged in doing, for his master, the act consciously or specifically directed” to be done by the master.

To support such theory, it was necessary to show that the employer had given Countryman supervision and control over the work in which plaintiff was then engaged.

The evidence does not support such theory. The best that can be said of such evidence as was adduced is, that, on occasions, -the manager in charge of the building (who made the contract with plaintiff) sent messages by Countryman to Lowry and to other persons employed on the premises, concerning their work, and was, by the manager, given odd jobs to do about the premises.

All this testimony, considered carefully, does not support the issue of Countryman being engaged in the performance of his duties as an employee when he slapped plaintiff on the back and said what plaintiff asserts he said when he did the act complained about. No evidence tends to show that Countryman was sent to deliver any message to Lowry, and the evidence fails to show that Countryman had any control over Lowry or any supervision over Lowry’s work.

The testimony fully evidences the fact that Countryman and Lowry were on* friendly terms. No animosity or ill will is shown by the testimony.

Lowry testified that he had a man employed to do the painting in defendant’s building and was standing talking to this man and pointing with one hand, and, “While my hand was up, I was showing him where there was some spots up there, why, I got a terrible shoving and blow on my shoulder, with a yell at me, ‘Why don’t you get to work?’ And by that time I had done went into a twist or a fall to the concrete floor * * *. I was in such great pain, and I looked up to see, and it was Mr. Countryman that knocked me down, and he walked over and put his hands down and took hold of my hand and gave me a pull, and I came up * * * and I said, ‘What do you mean?’ And he said, ‘What do you mean?’ something like that, or something of that kind, and I turned and hobbled off.”

On cross-examination, he admitted that he and Countryman- had always been on friendly terms, and speaking of the incident the following testimony appears:

“Q. Now when Countryman came into the room there and shoved you, as you put it, isn’t it a fact that he was just joking with you? A. No, sir; I could not take it that way.

“Q. You do not know of any reason why he would be trying to hurt you, do you? A. Yes, sir.

“Q. What was it? A. He might, to hurry me up to get that painting on the wall done, and to get the job done.

“Q. He was not mad at you, you say, about anything? A. Well, it looked like he was. It looked like he was irritated about something.

“Q. Nothing had happened, though, between you and him prior to that time that would make him mad, at that time? A. I don’t recall anything at that time.”

Soon after the accident, Lowry wrote a letter to Mr. Anderson, telling how and what happened, and said: “Said he was in fun but this is what his fun. has done for me.”

Lowry also made a statement in writing in connection with his claim for compensation, in which he said, speaking of Countryman’s actions and words: “He told me to get out of his way and to let him go to work. He told me that he was joking me at the time he shoved me. He helped me to my feet, and I told him then that I was easily overbalanced. He shoved me pretty hard when I fell to the floor.”

Lowry, attempting to explain away his statements, said that he intended to say that Countryman told someone else that he was only joking at the time.

The undisputed record, from the lips of Lowry, discloses that there was but little to be done on the job, and that -it required about an hour and a half to complete it. It is also undisputed that the premises were not to be occupied by the tenant for some days to come. This evidence utterly destroys Lowry’s theory — his only theory— of the reason for Countryman’s acts and words, viz., that he wanted the work speeded up.

It thus appears that the evidence does not support the theory that Countryman bore any ill will against Lowry, or that he assaulted or intended to assault Lowry at the time, and we do not believe that the facts shown support any theory upon which Lowry can recover damages from the appellant, even if the facts were strong enough to support a verdict that Countryman was acting within the scop'e of his employment at the time; and we hold that the evidence does, not support such an issue.

We will next discuss the latter part of the definition of “scope of employment.”

The evidence not being such as that it supports the theory that Countryman was engaged in doing, for his master, the act consciously and specifically directed, by the master, it is next necessary to inquire whether the act done by Countryman can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the act which was consciously and specifically directed by the master, or that such was the natural, direct1 and logical result of it. The evidence does not tend to support such theory.

Even if the master had directed Countryman to supervise the work being done by Lowry, or if the evidence disclosed that Countryman had any such supervision by reason of the duties imposed upon him by his employment, it could not be said that the specific act complained about can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the duty resting upon Countryman, or a natural, direct and logical result of the performance of such duty.

Volume 29, Tex.Juri., para. 251, pp. 423, 424, says:

“On the other hand, if the occasion is not one for the use of force, or if the force used is in excess of what is justifiable, the master is liable for the assault where he has placed his servant in an employment which requires the exercise of discretion as to whether the occasion is a proper one for using force and as to the amount to be used.

“But where the person assaulted had done nothing which could justify the use of any force whatsoever, and it further appears that the servant committed the assault to satisfy a personal grudge, then no liability attaches to the master.”

The assignment of error is sustained.

The thirty-fifth assignment of error complains of the trial court refusing to instruct the jury peremptorily to find for appellant.

We believe that, under this record, such assigned error should be sustained.

The Supreme Court, speaking through the Commission of Appeals, in American Nat. Ins. Co. v. Denke et al., 128 Tex. 229, 95 S.W.2d 370, 373, 107 A.L.R. 409, said: “Putting the matter in a different way, it may be said that a master is liable for acts of his agent under the doctrine of respondeat superior only where the relationship of master and servant exists at the time and in respect to the very thing causing the injury and from which it arises.”

In support of the opinion, a number of cases are cited, among them being Leachman v. Belknap Hardware & Mfg. Co., 260 Ky. 123, 84 S.W.2d 46, 48, wherein this language is used: “The test is whether there was authority for doing the act causing the injury.”

Applying this doctrine to the instant suit, we ask: Even if the master gave supervisory authority over Lowry to Countryman to watch over the work as it was being done by this independent contractor and to urge him to expedite the work, can it be said that the master authorized Countryman to do the act that caused the injury? Can it be said that the act was an ordinary and natural incident or attribute of the supervisory authority given to the servant, or that it was a natural, direct and logical result of such authority? We do not believe so.

The master did not nor could he be said to have the duty to anticipate that his servant would do the act' that actually caused the injury.

As said heretofore, we pretermit passing upon the assignments of error not discussed.

The judgment of the trial court is reversed and judgment is rendered for appellant.


author: LOONEY, Justice.

text:
    ACTON et ux. v. POINT-O-PURCHASE ADVERTISING CO. et al.
    No. 13094.
    Court of Civil Appeals of Texas. Dallas.
    July 27, 1940.
    Rehearing Denied Oct. 5, 1940.

      Touchstone, Wight, Gormley & Touchstone and M. R. Irion, all of Dallas, for appellants.
    John H. Bickett, Jr., and J. C. Muse, Jr., both of Dallas, for appellees.
   LOONEY, Justice.

This appeal is from an order entered, at the suit of Cain Bagracks Company and Point-O-Purchase Advertising Company (corporations), granting a temporary injunction, restraining Len Acton, appellant, in the respects hereinafter stated.

As the only question presented is whether the trial court abused its discretion in granting the temporary writ, we will make only a limited statement in regard to the nature of the pending litigation between the parties, and the facts giving rise to the lawsuit.

Prior to January 1, 1940, Len Acton and M. K. Davis were engaged in the business of selling certain advertising specialties; operating under two firm names, that is, Cain Bagracks Company and Point-O-Purchase Advertising Company. The advertising matter or commodities dealt in were known as: Bagracks, Four-View Signs, Addoorpulls, Twine Holder, Con-ditionator, and Taxi-Neon. The Bagrack, used in grocery stores, is a receptacle for sacks and bags of various sizes, held by a mechanical device permitting their withdrawal from the bottom, its metal sides being for the display of advertising matter; the Addoorpull is a handle, displaying advertising matter, placed on screen doors in retail establishments; the other items are imitation Neon signs, a Four-View Sign, and the Conditionator, being a cabinet for the display of bread, and to keep same in a sanitary, merchantable condition.

In the trade-name of Point-O-Purchase Advertising Company, the partners contracted with the F. M. Thorpe Mfg. Company, of Lamar, Mo., to manufacture Bag-racks, ship to purchasers on orders sent in, invoice and collect for same, and, after retaining cost of manufacture, the remainder to be held for, or remitted to the firm.

The business pursued by the parties was profitable; during the year 1939, its earnings were sufficiently large to net each partner $15,000, besides $9,000 of uncollected accounts. On January 1, 1940, Acton and Davis caused two corporations to be chartered, bearing the names under which they acted as partners, that is, Cain Bagracks Company and Point-O-Purchase Advertising Company; each with an authorized capital of $1,000, of which $500 was paid in. Acton was president, and Davis, vice president and treasurer, of each corporation; the directors of Cain Bag-racks Company were Davis, Acton and Acton’s wife; the directors of ■ Point-O-Purchase Advertising Company were Acton, Davis and Davis’ wife. The stock in these companies was treated and considered as community property; the wives of the parties taking no active part in the management of the business.

These corporations succeeded, not only to the names under which Acton and Davis operated as partners, but also to all the partnership assets, including contracts on hand, and all rights and interests belonging or pertaining to the business. The method of operating the business was not changed, being handled and conducted as though the partnership was still in existence. The corporations were not competitive; they had the same officers, salesmen, employes, and occupied the same quarters. All sales were credited on books, in such manner, as to equally distribute between the corporations, the total business.

On April 15, 1940, the corporations were safely solvent; owned, among other properties, a deposit of $1,800 in the .Liberty State Bank of Dallas; a Cadillac automobile, certain credits with Thorpe Mfg. Company, and certain samples, sale kits, etc., used by their salesmen. Prior to the date just mentioned, Acton, becoming dissatisfied, desired to acquire full ownership and control of the business and, with that end in view, had several discussions with Davis and, finally, on April 17, 1940, delivered to Davis, in the form of a letter, a “give or take” proposition, that is, he proposed to either purchase or sell on the terms and conditions stated. The letter is lengthy and need not be reproduced in extenso, but excerpts will be quoted, and the .substance otherwise will be stated, as follows; the first paragraph reads: .“After having given 'careful consideration for quite some time to the problem of how to continue the activities of our business in the manner which I believe to be in the best interests for both of us, I am 'convinced that the following proposal is fair. I consider it. also the most practical method of assuring that we both' receive some equitable future benefits from the business in proportion to our individual capabilities and activities in the growth and continuance of the business”; followed by proposing that, an auditor, jointly chosen, should make an audit of the business of the two corporations, showing its status, as of April IS, 1940; that all debts and liabilities of the two corporations, as of that date, should be discharged; that the physical assets should either be partitioned or sold and the proceeds equally divided; that the purchaser should assume the overhead expenses of the two corporations after April 15, 1940; that all remaining moneys, and receivables coming from Thorpe Mfg. Company, on orders taken prior to and including April IS, 1940, should be equally divided; that all orders taken after April IS, 1940, would belong to the corporations; the purchaser agreeing to pay the seller “5% on the gross moneys received from accounts on sales made áfter April 15, 1940”, in consideration of the transfer by the seller to the purchaser, of his 50% stock in the corporations, it being “further understood that for such 5% you are to develop to the ultimate acceptance such items as are now in an incomplete condition and it is further agreed that any new idea, or improvements of those already mentioned which you develop, you are to receive the aforementioned 5% on”; providing further that, no restrictions would be placed upon the future activities of the seller, but that, he would be wholly free to enter into any field of industry, or any type or character of work that he may desire, “whether or not it be in competition with the products of the two corporations”.

In form, the letter was a proposition by Acton to purchase from Davis his interest in the business, but stated: “In offering you this proposition I am also willing to accept it for myself.” This converted the letter into a give or take proposition, but stipulated that he must have an answer by noon Friday, April 19; and, accordingly, before that date, Davis wrote Acton that: “I will take over the two corporations and all our business and settle with you in exact accord with ‘your proposition contained in your letter of April 17, 1940.” On receipt of Davis’ letter, exercising the option to take over the business, Acton immediately withdrew, ceased all active participation in the management of the business, and agreed with Davis on the person to be employed to audit the affairs of the corporations.

However, appellees complained that, immediately thereafter, Acton launched a business, under the name of “Acton Advertising Associates”, for the purpose of selling the identical articles produced and sold by the corporations; sought to appropriate to himself the good will of the business; communicated with salesmen then in the service of appellees, induced them to resign and accept service with Acton Advertising Associates; caused orders previously taken .to be withheld by the salesmen, and sample kits belonging to appel-lees, retained; and immediately began soliciting appellees’ customers for sales of said commodities and articles for the account of Acton Advertising Associates; instructed Thorpe Mfg. Company not to pay appellees any funds due on "orders taken prior or subsequent to April IS, 1940; induced that Company to cancel the manufacturing ' contract existing between it and appellees; wrongfully drew from the Liberty State Bank of Dallas $1,800 to the credit of the business, and procured the issuance to himself of two cashier’s checks for $900 each, using one in furtherance of his own business and, refused to surrender to appellees the other.

Acton’s alleged wrongful conduct provoked the institution, by appellees, of the-present proceedings, seeking injunctive relief, which, as before stated, was granted, Acton being temporarily enjoined, as follows :

“(1) From cashing, hypothecating and/or pledging the $900.00 cashier’s check on the Liberty State Bank of Dallas, Texas, described in the plaintiffs’ petition;

“(2) From withdrawing and/or collecting from F. M. Thorpe Mfg. Company of Lamar, Mo., any moneys or funds belonging to Point-O-Purchase Advertising Company and Cain Bagracks Company, or either of them, and from withdrawing and/or collecting from said Thorpe Mfg. Company any moneys or funds that have accrued or will accrue on orders taken by Len Acton individually or in the name of Acton Advertising Associates since April 19, 1940; except as to any moneys or funds due the said Acton on orders for items other than Bagracks, Four-View Signs, Addoorpulls, Twine Holder, Conditionator,. and Taxi-Neon.

“(3) From using the Cadillac automobile, the property of Point-O-Purchase Advertising Company and Cain Bagracks. Company, for any purpose whatever except in the furtherance of the business of said. Point-O-Purchase Advertising Company- and Cain Bagracks Company;

“(4) From appropriating and/or using the samples, sales kits, and other materials owned by Point-O-Purchase Advertising Company and Cain Bagracks Company, except in the furtherance of sales for the use and-benefit of said corporations;

“(5) From soliciting the customers and prospective customers of Point-O-Purchase Advertising Company and Cain Bagracks Company, and from selling, or attempting to sell, bagracks and other products and merchandise belonging to said corporations, other than for the account and use and benefit of said corporations; and

“(6) From representing to the trade and the public that the corporations, Point-O-Purchase Advertising Company and Cain Bagracks Company, are being liquidated and that he and the Acton Advertising Associates are the successor of said corporations.”

No question is raised as to the right of the corporations to prosecute the suit; nor do we think their right to do so, could be successfully questioned. They were safely solvent; Davis and Acton were sole owners of all stock, therefore, as individuals, were privileged to deal as they chose with the property and property rights of the corporations — of course, not to the prejudice of creditors. See Dysart v. Flemister, Tex.Civ.App., 140 S.W.2d 350, 353.

Appellant contends that the trial court erred in granting the temporary injunction, because the agreement between the parties contained no provision forbidding him to compete with appellees in the sale of the advertising specialties mentioned.

The agreement heretofore set out, after providing for an equal distribution of the physical assets of the corporations, contained provisions clearly indicating that the business, as theretofore conducted, would be continued; stating in effect that the plan of dissolution suggested would continue the business to the best interest of both, under which each would receive future benefits; the purchaser agreeing to pay the seller 5% of gross moneys received from sales after April 15, 1940, in consideration of the seller transferring all stock owned by him in the corporations to the purchaser; specifically stating that the business to be continued in the future was to be the same as before, that is, the sale of Bagracks, Four-View Signs, Addoor-pulls, Twine Holder, Conditionator, and Taxi-Neon.

The transfer by appellant of all his stock represented his entire interest in the business, .including its good will, hence wé think the implication inescapable that, he could do nothing in derogation of the business, or interfere with its future successful operation, without violating the spirit, purpose and intent of the agreement.

The facts involved in Red Top Cab Co. v. Hanchett, D.C., 48 F.2d 236, 238, are strikingly similar to the facts here involved. In that case, the court used the following pertinent language: “The evidence in the present case leaves no room for doubt that defendant, in organizing his competing business, knowingly crippled and injured the plaintiff company, depriving it of selected personnel and using its facilities in the launching of his own project. Plaintiff is entitled to a decree, and in ordering such decree I believe that elective provisions should be made therein.” The cases of Jones v. Campbell-Taggart Associated Bakeries, 5 Cir., 63 F.2d 58, and Coleman v. Hanger, 210 Ky. 309, 275 S.W. 784, by the Supreme Court of Kentucky, also are in point.

We find nothing in the contract forbidding appellant to engage in an enterprise of the same general nature as that pursued by appellees; in fact, that right seemingly is expressly recognized; but we do think that he is forbidden to engage in the business of selling the identical products, dealt in by appellees, upon which the business was established and its future depends.

In view of the evidence, we cannot say that the court abused its discretion in resolving all issues of fact in favor of ap-pellees, or in holding, as evidently it did, that the agreement prohibits appellant from competing with appellees in the sale of the advertising specialties named, or from doing any of the things he was forbidden to do.

It follows that, in our opinion, the court did not abuse its discretion in granting the temporary writ, hence its judgment is affirmed.

Affirmed.