text:
    MARTINEZ v. STATE.
    No. 20163.
    Court of Criminal Appeals of Texas.
    May 17, 1939.
    Rehearing Denied May 22, 1940.

      Ramon L. Longoria, of McAllen, and Kennedy Smith, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is the second appeal of this case, the opinion in the first case being found in 134 Tex.Cr.R. 180, 114 S.W.2d 874. In each instance the penalty was death.

In the latter part of December 1934 the decomposed body of a man was found stranded in the Rio Grande River, with a cover for a Model T Ford transmission case tied to the body by means of a rope. This man’s name was not known, but the body evidenced a death by violence, as shown by bruises and fractures of the skull, as well as numerous wounds on the body. There were certain tattoo marks over the body which, together with his height, weight and other characteristics, finally made up the allegations in the indictment relative to his identification, which was never made more definite. Appellant was not apprehended for about two years thereafter, it appearing from the record that he had changed his residence from this State to Mexico, and was undoubtedly a fugitive.

Upon the trial of this case it was shown that this deceased person and a woman, presumptively his wife, were temporarily present in a house belonging to a woman named Teresa Chapa, and were last seen alive by this Chapa woman, when one Placido Handy came to her home and took this man and woman away with him in a car. These unknown persons seemed to be desirous of crossing out into Mexico, and, as shown by the testimony, Placido Handy, together with five others of Mexican extraction, one of whom was appellant, had previously entered into a conspiracy for the purpose of robbing and killing this man and woman, and disposing of their bodies. The conspiracy was carried out, if the testimony is to be believed, in a most brutal manner. The woman was raped nine times, despite her pleas to be killed rather than to be thus treated. The man was beaten, shot, cut and stabbed; the woman, after she had satisfied the lust of these conspirators, was killed by them by beating, shooting and cutting her, and both bodies, weighted with pieces of an old automobile engine, were thrown into the Rio Grande River. Some six weeks thereafter the man’s body was found lodged in the river with its weight still attached, but so far as this record shows the river still keeps its secret as to where the woman’s unsep-ulchred body lies.

The record is voluminoits and contains many bills of exception that evidence great diligence and labor on the part of appellant’s attorneys in their presentation of this case in both the trial court and this court. The questions presented can be finally relegated, however, to practically a few propositions, which we will proceed to discuss.

The first proposition relates to a change of venue, which was asked in a motion properly .filed, and at a hearing thereof a large amount of testimony was adduced. This motion was by the trial court overruled, and his action thereon is brought before us for review in bill of exceptions No. 1, which occupies a major portion of the transcript. This bill of exceptions and the testimony adduced thereunder is identical with bill of exceptions No. 1 in the case of Placido Handy v. State, 138 S.W.2d 541, opinion handed down on April 19, 1939, the same testimony being offered in that case and this instant one. We wrote at length in that case and endeavored to analyze this testimony in a synopsis form, to which opinion we here refer.

It seems in this case that eighty-nine prospective jurors were interrogated, thirty-one of whom were excused because of having formed an opinion; the State used eleven of its peremptory challenges, and the appellant exhausted all of his challenges and was by the court allowed two extra challenges, which were exercised. It seems from the record that no talesmen were required, the jury being finally selected from the original venire. We see no good reason for further going into the matters complained of in this bill, and, in the interest of brevity, we refer the interested reader to what -we said, relative to the motion for a change of venue, in the companion case of Handy v. State, 138 S.W.2d 541, for our views in this matter, and on the strength of that case as authority we overrule this bill of exceptions No. 1.

Bill of exceptions No. 2 presents the following question for our review: The court in its charge to' the jury properly embodied therein a fair and legal charge relative to a confession purportedly made by appellant wherein he implicated himself in this homicide, and which to a large degree was corroborative of the testimony given by one . Jose Rodriguez, a self-confessed accomplice, who testified fully relative to these gruesome details. There was an objection leveled by appellant’s attorneys at such charge, and in place thereof appellant requested the giving of the following charge: “You are instructed as a part of the law of this case, that there has been admitted in evidence a written statement made by the defendant while under arrest and in the custody of officers. In this connection you are instructed that unless you find and believe from the evidence, beyond a reasonable doubt, that the written statement .was made by the defendant of his own free will and accord, without any force, threats or coercion on the part of anyone, and not as a result of any fear of bodily harm, and unless you further find and believe from the evidence, beyond a reasonable doubt, that before such statement was made, the defendant was warned by the officers before whom such statement was made that he did not have to make any statement at all, and that any statement made by him may be used in evidence against him on the trial of the offense with which he stands charged, then you must acquit the defendant and say by your verdict ‘not guilty.’ ”

The basic difference between such paragraphs in the court’s charge being the fact that the court charged the jury that .unless they believed that such confession was freely and voluntarily made, under no persuasion nor promises, and after a proper warning, then they should disregard .same, and went ho further therein. However appellant’s requested charge went further, and, had same been given, it would have directed the jury, in the event that they found such confession to have been improperly made by appellant, that they should acquit him, and say by their verdict not guilty. This element of an acquittal was based upon the proposition, as alleged by appellant’s attorneys, that there was no corroborative testimony of any kind or character in this case as to the self-confessed accomplice’s statement except the confession of appellant, and if the same was not considered by the jury under the court’s instruction relative thereto, then appellant was entitled to an acquittal, because there was no corroboration of the accomplice’s testimony.

We confess this proposition has caused us some concern. Our attention has been called to the case of Ball v. State, 118 Tex.Cr.R. 579, 39 S.W.2d 619, wherein it appears that this court held, in substance, the doctrine laid down by appellant in this bill of exceptions; and that is where a Confession has been introduced in evidence, which confession was claimed to have been involuntarily made, and the question relative thereto has been submitted to the jury, and there being no further corroboration than the confession of the testimony of an evident accomplice, the court should instruct the jury to acquit, in the event they found the confession to have been improperly obtained. We find that such a proposition has also been laid down in Melton v. State, 127 Tex.Cr.R. 399, 77 S.W.2d 243. We do not think, under the circumstances of this case, that such is a sound proposition of law. In the first place, we notice that the court correctly instructed the jury upon the law of accompliceship; that the witness Joe Rodriguez was an accomplice, and that it was necessary not only that his testimony be believed to be true, and that it showed appellant’s guilt, but also that there should be other and further testimony tending to connect the appellant with the commission of the offense, and unless they thus found, that they could not convict the defendant, and that finally they should acquit the appellant unless they believed him guilty beyond a reasonable doubt. The court also charged that they should discard the purported confession of appellant, and not use the same for any purpose, unless they believed same to have been voluntarily made without coercion of any kind, and not even then unless they found other separate and independent evidence outside of and independent of such statement corroborative thereof in some material matter tending to connect the defendant with the killing, if any, and under the facts and charges thus given, unless the contrary be shown, we think it may be presumed that the jury obeyed the court’s instructions therein.

We are further impressed with the thought that the court should not have singled out this one special thing and framed his charge thereon to the effect that a failure to consider one portion of the testimony should result in a verdict of acquittal upon the jury’s part. Such an instruction, we think, would have been upon the weight of the testimony. Suppose the testimony relied upon as a corroboration of the accomplice had been given by the witness A.B. Would the court have been justified in instructing the jury that unless they believed the witness A.B., they should acquit the appellant. Carrying the illustration still further, suppose corroborating testimony was given by both A.B. and C.D. Would not the court be called upon to instruct the jury that they must acquit the defendant unless they believed the testimony of both A.B. and C.D. ? The illustration could be carried on ad infinitum, or at least until the court would find itself in the position of classifying all the testimony, and under the duty of instructing the jury on not only the weight of the testimony, but also its effect, — in regard to each proposition presented.

We have recently been confronted with a similar situation relative to the doctrine of circumstantial evidence, under the proposition that no case falls under the doctrine of circumstantial evidence where there is any direct evidence relative to the accused’s guilt. We have held in late cases that where a confession of the accused is submitted to the jury relative to whether or not same was voluntarily made, with the instruction to use the same only in the event they find same to have been made free from coercion, etc., that it was not necessary to further instruct the jury on the law of circumstantial evidence in the event that the jury should decide that such confession was improperly obtained.

We have heretofore said in Wilkins v. State, 134 Tex.Cr.R. 452, 115 S.W.2d 907, 911, that: “Although it was made an issue as to whether appellant’s confession was voluntary and such issue was submitted to the jury, it was not necessary to charge on circumstantial evidence. See Wilson v. State, 103 Tex.Cr.R. 403, 281 S.W. 844; Langhorn v. State, 105 Tex.Cr.R. 470, 289 S.W. 57; Simmons v. State, 107 Tex.Cr.R. 504, 296 S.W. 513; Dyer v. State, 105 Tex.Cr.R. 374, 288 S.W. 230; Snow v. State, 106 Tex.Cr.R. 222, 291 S.W. 558; Johnson v. State, 82 Tex.Cr.R. 82, 197 S.W. 995.”

We quote from Wilson v. State, supra [103 Tex.Cr.R. 403, 281 S.W. 846]: “The trial court correctly refused appellant’s special charge No. 2, wherein he sought to have the jury told that they should not consider the confession unless they believed its statements to be true, and that, if they found same to be untrue, the case would be one of circumstantial evidence. There was no warrant for said charge, either in fact or law, and for this court to so hold would ingraft on our practice the singling out in any case of the direct testimony on which the state relied, and telling the jury in the charge that, if they did not believe this direct testimony to be true, then the case would be one of circumstantial evidence. The unsoundness of such doctrine needs no discussion.”

We quote from the case of Langhorn v. State, 105 Texas Cr.R. 470, 477, 289 S.W. 57, 61: “Appellant sought also, by his special charge No. 2, to have the jury told that if they considered appellant insane, and because of that fact they did not consider the confession introduced by the state, then the case was one of circumstantial evidence. The instruction was properly refused. If the jury believed the appellant insane, he should have been acquitted, and the charge so informed them.”

In the present case the court instructed the jury that if there be no corroboration of the accomplice’s testimony, then they should acquit the defendant. The court also instructed the jury that they could not convict the defendant on his confession, even though they believed the same to have been voluntarily given, and to be free from coercion, etc., unless there was also separate and independent evidence, outside of the confession, corroborating same in some material matter tending to connect the defendant with the killing of the deceased. The latter portion of such charge was more favorable to the accused than he was entitled to. See Simmons v. State, 107 Tex.Cr.R. 504, 507, 296 S.W. 513; Lawson v. State, 96 Tex.Cr.R. 322, 257 S.W. 559; Dyer v. State, 96 Tex.Cr.R. 301, 257 S.W. 902; Gandy v. State, 99 Tex.Cr.R. 643, 271 S.W. 97; Aven v. State, 95 Tex.Cr.R. 155, 253 S.W. 521.

We quote from the opinion on motion for a rehearing in the Johnson case, 82 Tex.Cr.R. at page 85, 197 S.W. at page 996: “Appellant now contends that the court, in connection with the charge given submitting to the jury whether or not they could consider the confession of appellant proven, up and introduced in evidence, should have charged on circumstantial testimony, in the event the jury should disregard and not consider the confession. * * * In our opinion the case did not require a charge on circumstantial evidence.”

It occurs to us that the same reasoning that sustains the proposition that where the State relies solely upon a confession in order to take the case out of the domain of one of circumstantial evidence, and the vol-untariness of such confession is submitted to the jury for their decision, that' nevertheless it is not the duty of the trial court to charge the jury that in the event they disregard the confession, that such a case, then becomes one of circumstantial evidence ; if such a charge is an improper one under such facts, our reasoning ought to necessarily follow that if a confession is relied upon to take a case out of the realm of a conviction upon the uncorroborated testimony of an accomplice, that it should not be proper nor necessary to anticipate the contingency of the jury disregarding such confession, and instructing them that if they so disregard such testimony, then that there was, no corroboration of such accomplice, and they should acquit the defendant. If such an instruction be given, why should not the defendant also be entitled to a charge of like import wherein the sole eye witness, who had been vigorously impeached, why should not the court tell the jury that if you do not believe the testimony of this eye witness, then you should acquit .the defendant on account of the only further testimony being that of an admitted accomplice. We think the analogy with the above quoted cases and the instant proposition with which we are confronted is close enough to say that they should be decisive of this question, and that the court should not have singled out this one question and instructed the jury that in the event they disregarded the confession of appellant, that they should acquit him. They were instructed that before they could convict appellant they should not only believe the testimony of the accomplice, and that same showed the guilt of the appellant, and that there was further and other testimony corroborative of the accomplice’s testimony, tending to connect him with the commission of the offense, and such corroboration would not be sufficient if it merely showed the commission of the offense. Evidently the jury understood this instruction, and surely knew what was meant by the word “corroboration,” and knew that if they had no other testimony than the appellant’s confession with which to corroborate the accomplice, and they disregarded that, then the inevitable result would have been an acquittal, and we have no reason to say otherwise than that they obeyed this instruction of the court. We are impressed with the conviction that the court went as far as the law justified him in going when he gave the jury these instructions and left the application of their findings to their conscience and sound discretion. To have gone further would soon lead us into the doctrine of special issues and a finding thereon, as is now provided in civil causes.

As to the proposition laid down herein, that it is not the duty of the court to single out certain portions of the facts and charge thereon in connection with the probable finding of the jury on other facts submitted to them, we quote from Hines v. State, 40 Tex.Cr.R. 23, 27, 48 S.W. 171, 172 : “* * * Among other things, it was shown that the defendant had a watch that was shown to have been in the possession of Henry Meyer at the time of the killing. This is the watch in regard to which appellant contends the court should have charged the jury.. The contention seems to be that if the identification of defendant as the slayer of deceased was not sufficiently proved by Gotlieb Meyer, or otherwise than by the watch, the court should have instructed the jury ‘that it was not alone sufficient to connect him with the crime charged in the matter aforesaid.’ This theory of defendant is based upon the supposition that this was the only evidence.* in the case that tended to connect him with the murder, if the testimony of Got-lieb Meyer was discredited by the jury. This, in our opinion, would have afforded no reason for the court to have singled out this particular fact, to the exclusion of the other facts in the case, upon the question of identification. He was not only identified by Gotlieb Meyer as being the man, but there are quite a number of other facts and circumstances in the case that tend strongly to identify appellant as the perpetrator of this homicide. We know of no rule that would require the court to single out each of the different facts that tend to identify or connect a party with a crime, and charge upon each separately. If the court were required to charge the jury with reference to the watch, the rule would have been equally as strong with reference to the testimony of Jim Jackson as to the possession of the cap subsequent to the murder, which appellant had prior to the murder obtained from Willis Dow; and also as to the fact that his discarded shirt was found a few hundred yards distant from where the homicide occurred; as well as other circumstances in the case which tended to connect him with this offense.”

That this court is correct that where a confession is introduced and presented to the jury for determination as to its volun-tariness, and it is the only direct testimony presented, 'nevertheless the case rests not on circumstantial evidence, and should not be thus charged, is held in 24 Texas Jurisprudence, p. 590, as follows: “ * * * nor is a charge as to circumstantial evidence necessary where the defendant’s participation in the crime is shown by the testimony of an accomplice, or by an unequivocal admission or confession of the accused. To relieve the court of the necessity of giving a charge of this character the confession or admission should unequivocally admit the commission of the act charged, but it need not do so in the exact language of the statute defining the crime. A claim that inculpatory statements were made through fear does not alter the rule that admissions or confessions of guilt obviate the necessity of a charge on circumstantial evidence.”

While we have endeavored to reason from analogy in the cases above quoted, we now resort to the instant case, and bill of exceptions No. 2. In order to render proper the requested charge, it is necessary that there be no corroborative testimony at all as to any material fact testified to by the accomplice. To the application of this proposition we are not in full accord so far as these facts are concerned. We find from the testimony that in a short time after the disappearance of the deceased person and his wife, that the appellant disposed of his automobile and fled to Mexico, where he remained for a period of practically two years, as testified to .by the immigration officers, who said they were looking for him, and when he did appear in Texas he himself was armed with a fully loaded pistol, and was in company with another who was similarly armed. That this testimony was admissible is justified, we think, by the following quotation from 18 Tex.Jur. p. 41, as follows :

“The flight or attempted flight of a person after the commission of a crime, while not ‘of itself sufficient to raise a presumption of guilt, is a circumstance which is to be considered by the jury in connection with all the other facts and circumstances in the case as tending in some degree to prove a consciousness of guilt. * * *
“In proving the flight of the accused it is competent to show that soon after the crime he left the county or the state, and that a letter written by him showed that he was a fugitive. It is also relevant to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken, even though this may amount to the commission of another crime.”

Appellant’s bill of exceptions No. 3 relates to the testimony of Charlie Wallis, a senior patrol inspector, wherein he testified that for approximately two years, while in the discharge of his duties, he was looking for the appellant, endeavoring to catch him on‘the Texas side of the river, and that he did not arrest any of the co-conspirators during such time; that witness and other officers were laying for appellant in order to catch him on the north side of the Rio Grande, but did not find him for two years. That the flight of the accused was permissible to be proven we have just shown by the above quotation from 18 Texas Jurisprudence, p. 41. The portion of the above testimony relative to the failure to immediately arrest the other co-conspirators seems to have been brought out by appellant’s attorneys on cross-examination, according to the trial court’s qualification to such bill. This bill does not impress us as evidencing any error.

Bill No. 4 complains of the court allowing the officers who finally arrested appellant to testify that appellant, as well as his companion at such time, were armed with fully loaded pistols, which were taken off their person at such time. We again refer to 18 Tex.Jur., p. 43, wherein it is said: “It is also relevant to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken even though this may amount to the commission of another crime.” See Williams v. State, 90 Tex.Cr.R. 619, 236 S.W. 984; Thompson v. State, 90 Tex.Cr.R. 15, 234 S.W. 401; Taylor v. State, 49 Tex.Cr.R. 710, 90 S.W. 647. This bill also complains of a subsequent action of the trial court in allowing the introduction of a pistol in evidence, which the arresting officers identified as the one taken off the person of appellant at the time he was arrested. And subsequently while the appellant was on the stand, and after he had admitted that on the night of his arrest he and a companion illegally crossed the boundary river from Mexico to Texas, he was asked by the State’s attorney if he was not armed with this gun, exhibiting the one just above referred to, which question was objected to, and exception reserved, and the possession of such gun was denied by appellant. Subsequently the witness Wallis was recalled as well as his companion, in the arrest of appellant, W. C. Greer, and both affirmed the fact that this identical pistol was taken off appellant’s person at the time of his arrest, at which time the appellant’s attorney moved to exclude such testimony from the consideration of the jury, which the court refused to do, and exception reserved. Again subsequently during the closing argument to the jury by the district attorney he is shown in said bill to have said: “coming back from across that river in the dead of night with a companion armed, this man armed , with that weapon,” (brandishing said Exhibit No. 8), which argument was objected to, the objection overruled, and exception noted. 'It is apparent that this bill is multifarious and presents many different propositions, taking place throughout the whole trial of this case, but on account of the severity of the punishment we have considered the same. Brought down to its last analysis, this bill is based upon the proposition that the possession of this pistol by appellant is a separate and distinct offense, and the admission of the same was prejudicial and inflammatory.

The authorities above cited hold that when the flight of the accused has been shown, it is relevant to show his pursuit and capture, including his resistance when overtaken, although such may amount to the commission of another crime. It should surely follow that his preparation for such a resistance in thus arming himself, and surrounding himself with armed companions, would be a matter that was relevant and material to the issue of guilt and a consciousness thereof.

Bill of exceptions No. 5 relates to the fact that the trial court allowed proof, over appellant’s objection, of the fact that at the time of appellant’s apprehension by the officers he was accompanied by one Gil Casares, who was also engaged in an illegal crossing into Texas at nighttime, and was armed with a fully loaded pistol. What we have said previously in regard to bill No. 4 applies to this bill also. We are of the opinion that the circumstances surrounding appellant’s arrest after his flight and seclusion in Mexico for about two years are material and relevant to the question of his guilt herein.

Bill of exceptions No. 6 seems to be based on an objection to the cross-examination of a witness relative to the fact that he had not testified theretofore in this case. We do not see any merit in the objections leveled at such questions, and we overrule this exception, and to the same effect is bill No. 7, and our ruling is the same.

Bill of exceptions No. 8 complains of the fact that while appellant was on the stand he was asked if he crossed the bridge (over the river) or came slinking across the river at nighttime in a boat in an illegal crossing with a companion, and, over appellant’s attorney’s objection, he answered that he passed illegally that night, the objection to such a question being that it tended to show the defendant guilty of a crime other than the one with which he was charged. What we have said relative to bill No. 4 is also applicable in this matter, and controls us in overruling this exception.

Our final conclusion herein is that the case of Ball v. State, 118 Tex.Cr.R. 579, 39 S.W.2d 619, and followed by Melton v. State, 127 Tex.Cr.R. 399, 77 S.W.2d 243,— wherein this court held that where a confession is relied upon as corroboration of the testimony of an accomplice, and such confession was claimed to have been improperly obtained, and the question of its use by the jury has been submitted to the jury, then in such event the court should instruct the jury that in the event that they find such confession to have been improperly obtained, that they should acquit the defendant, — lays down an incorrect doctrine, and we now hold that such a doctrine is an instruction upon the weight of the testimony, and also is a singling out of a phase of the case and a charging directly on testimony that was offered relative to the whole case and for all purposes. So believing, the two cases mentioned above are hereby overruled. These two cases seem to be ones of first impression; they are not supported by any decisions of this State, or of any other state, so far as we can find. They do not come under any analogous reasoning that has been called to our attention, but, if followed to their natural conclusion, they would result in various instructions that would necessarily bear upon the weight of certain testimony submitted to the jury for their determination, and a specific instruction would have to be given for each separate possible finding of the jury on such submitted proposition. We are impressed with the idea that under the doctrine of a corroboration of the accomplice’s testimony the matter could be safely submitted to the jury, and upon their finding of guilt, we have the right to say that, in accord with the State’s testimony, they found the confession properly made, and utilized the same as corroborative of the accomplice. We also see no reason why we could not say that had they found no corroboration of such accomplice, then that they would have followed the court’s instructions and acquitted appellant.

We think this case was properly ánd legally tried, and that the record presents no error.

The judgment is therefore affirmed.

On Motion for Rehearing

HAWKINS, Presiding Judge.

The first point urged in appellant’s motion for rehearing is that bill of exception No. 4 reflects error in permitting proof to be made by the officers who arrested appellant on the night of October 11, 1936 that appellant was at the time of his arrest armed with a double-action 45 Colt’s pistol fully loaded, the objection to such evidence being that it tended to show appellant was guilty of another crime other than the one for which he was on trial, and that the pistol which appellant had was not shown to be the instrument with which the offense being tried was. committed.

Appellant seems to view the evidence complained of as the proof of an independent crime, apparently overlooking what to us appears to be the necessarily related facts that appellant soon after the murder for which he was on trial fled to Mexico, and there remained as a continuous fugitive up to the date of his apprehension. The facts last mentioned, we think, differentiate the present case from those cited by appellant in support of his contention. In the Lawrence case, Lawrence v. State, 128 Tex.Cr.R. 416, 417, 82 S.W.2d 647, no such condition existed as is here present. There it was sought to prove certain acts of the accused entirely independent of the one for which he was on trial, thus forming the basis for an argument that if he had committed the others, therefore, he had also committed the present one. Likewise, in Watson v. State, 88 Tex.Cr.R. 227, 225 S.W. 753, and Riggins v. State, 42 Tex.Cr.R. 472, 60 S.W. 877, there was no question of flight or appellant being a fugitive from the United States. Appellant also cites Locke’s case, Locke v. State, 129 Tex.Cr.R. 432, 88 S.W.2d 110; Reed’s case, Reed v. State, 123 Tex.Cr.R. 452, 59 S.W.2d 377; and Hancock v. State, 123 Tex.Cr.R. 154, 58 S.W.2d 129; Stanchel v. State, 89 Tex.Cr.R. 358, 231 S.W. 120, as supporting his position. In none of them does the question of flight, or being a fugitive appear. They all present instances where proof of other offenses than the one on trial was thought by this court to have been improper.

Appended to bill of exception No. 4 is an explanation by the trial court setting out the facts before him upon which he made the ruling complained of in said bill, and stating his reasons for admitting the testimony sought by appellant to be excluded. We quote from such statement the following:

“Upon the trial ’of this case one Charlie Wallis, a Senior Patrol Inspector of the United States Immigration Service, was called as a witness for the State..and testified in substance that he assisted in the capture of the defendant, near midnight, on the night of October 11, 1936, approximately two years after the date of the alleged offense for which defendant was on trial, and that the capture occurred in a remote and isolated section of Hidalgo County, Texas, on that portion of the Military Road south of Donna, Texas, in said County, and near the Rio Grande River, and near the scene of the alleged murder, and that at the time of said capture the defendant was in company, among others, with his brother, Amiliano Martinez and one Braulio Yanez, both of whom are co-defendants in this cause and under indictment, and that at said time the defendant was armed with a 45 double action Colt Pistol, which was loaded with six shells, and that said defendant was also in company at said time with a companion by the name of Gil Casares, who was also armed with a 38 double action pistol, which was loaded with six shells, and that at said time both guns were ready to be fired.
“The witness Wallis further testified that he had known the defendant for several years prior to the murder and that the defendant had resided all of that time near the scene of the murder, and that the defendant was an American citizen, having been born in the United States, which fact was later admitted by the defendant when he took the witness Stand, and that a very few days after the body of the deceased was found the defendant immediately crossed the river and went to Mexico, where he remained practically all the time until the night of his arrest. Other testimony disclosed that shortly after the body of the deceased was found, the defendant transferred his automobile to one Placido Handy, a co-defendant in this case, also under indictment, and said defendant thereupon went to Mexico, where he remained until he was arrested.
“The witness Wallis further testified that he and other officers attempted to arrest the defendant in connection with this case at about the time he went to Mexico, or shortly thereafterwards, and that they often laid in wait for said defendant down near the banks of the Rio Grande River near the defendant’s residence and the scene of the crime, on information that he was crossing in the dead of the night to pay visits to-relatives on the American side, but they were unable to apprehend and capture himi until the night of' his capture, as above stated.
“Testimony from Wallis and other officers, as well as from the defendant himself, who voluntarily took the stand in this-case, disclosed that the defendant, in company with the above named Gil Casares, illegally crossed the Rio Grande River from a spot in Mexico directly in front of the home of one Felipe Plernandez, a co-defendant in this case and under indictment for this same transaction, to the American side, at a spot near the scene of the crime in this case and close to the residence of this defendant and the residence of this defendant’s. relatives; that the crossing was. made in the dead of the night, near midnight, and was not over a bridge at any port of entry between Mexico and. the United States but was an illegal crossing made by the defendant and his companion, Gil Casares, in a row boat, and that the defendant was apprehended shortly after he made such illegal crossing, at a place and under the circumstances above set out. The witness Wallis further testified that although he and other officers had been trying to apprehend and capture said defendant for a period of nearly two years, this was the first opportunity they had to seize him.
“As heretofore stated, the defendant voluntarily took the stand as a witness on his own behalf, placed thereon by his counsel, and readily admitted that he and his companion, Gil Casares, were making an illegal crossing in the dead of the night from the Mexican side of the river to a place on the American side of the river near h-is home, and that the said Gil Casares was armed with a loaded pistol, yet the defendant positively denied that he himself had a loaded pistol or a pistol of any kind, and he denied that the officers found a pistol upon his person when he was captured.
“It was the State’s theory of this case that shortly after the body of the deceased was discovered in the waters of the Rio Grande River near the scene of the crime, the defendant, although shown to have been an American citizen, born in the United States and living practically all of his life near the'scene of the crime, on the American side of the river, fled into Mexico in order to escape arrest for this particular crime, and that the officers attempted to arrest him shortly afterwards but were unable to arrest him for a period of almost two years; until the night of his actual arrest and capture; that at the time of the defendant’s capture and arrest he was still attempting to evade and prevent arrest for this particular crime, and was returning to the American side, surreptitiously, to pay a hurried visit to his relatives, with an illegal crossing, of said river, and that the fact he and his companion, Gil Casares, who crossed the river with him, were armed with loaded pistols ready to be fired was a material fact and had a material bearing upon whether or not he, the said defendant, had fled and had escaped arrest for this particular crime shortly after the body of the deceased was found, and whether or not he, the said defendant, was a fugitive from justice from this county for this particular crime, as contended by the State, which theory and facts were disputed by the defendant. The Court allowed said pistol to be introduced in evidence by the State to substantiate the State’s theory of flight on the part of the defendant and the fact that the defendant had remained in Mexico, as a fugitive from justice of this County for this particular crime, for a period of almost two years, or almost immediately after the discovery of the body of the deceased, and to substantiate the State’s theory that at the very time of the defendant’s arrest, which was the first opportunity the officers had to arrest him, he was still attempting to evade arrest for this particular crime, and was prepared, by carrying said weapon fully loaded in his person, to resist arrest; on this theory the Court considered such evidence material evidence for the State’s case, * * * ”.

The matters stated in the foregoing explanation are borne out by the record.

The State may prove the flight of accused and the pertinent attendant circumstances, and may also show that accused resisted arrest or threatened to resist arrest. Branch’s Ann.Tex.P.C., Sec. 135; Mitchell v. State, 52 Tex.Cr.R. 37, 39, 106 S.W. 124; Moreno v. State, 71 Tex.Cr.R. 460, 160 S.W. 361. In Walker v. State, 74 Tex.Cr.R. 645, 169 S.W. 1156, it was held admissible for the State to prove that accused made threats to resist any effort to arrest him. In the present case the record shows no resistance or attempted resistance of appellant when he was arrested, or whether the arrest was effected under circumstances which would render futile any effort at resistance. Notwithstanding this, under the circumstances certified by the trial court in explanation of the bill in question, we feel unwarranted in holding that error was committed by the court in admitting proof of the fact that appellant was armed when arrested.

In Hunter v. State, 59 Tex.Cr.R. 439, 129 S.W. 125, 129, accused was in jail charged with murder. He escaped from jail. The sheriff effected his re-arrest on the third day after his escape. The sheriff testified over accused’s objection that when accused was * re-arrested: “* * * that he had a 32 automatic pistol, and a Colt’s and Winchester; that he had plenty of cartridges, including about a box and a half of 32’s and about 75 44’s; that the automatic pistol was a weapon that shot 8 times; and that to fire same all you had to do was to pull the trigger, and it would not stop after it got started unless you threw it in a tub of water.” In passing upon the objection Judge Ramsey, writing for the court, said: /‘There was little or no occasion, we think, to have shown in detail the character of arms that he had, though it would have been competent, we think, to have shown that his escape was under such circumstances and with such arms as implied and indicated an effort to defy arrest, but we are not prepared to hold, especially under the facts of this case, that the introduction of these matters could, in the nature of things, seriously have injured appellant, or that they are sufficient to justify a reversal of the judgment of conviction.”

As throwing some light on the question discussed we refer to Wallace v. State, 93 Tex.Cr.R. 590, 249 S.W. 480; Wynne v. State, 56 Ga. 113; State v. Shaw, 73 Vt. 149, 50 A. 863; Johnson v. State, 120 Ga. 135, 47 S.E. 510; Campos v. State, 50 Tex.Cr.R. 102, 95 S.W. 1042; Cabrera v. State, 56 Tex.Cr.R. 141, 118 S.W. 1054; State v. Lambert, 104 Me. 394, 71 A. 1092, 15 Ann.Cas. 1055, and especially reference is made to the notes thereunder on “Admissibility of Evidence that Accused was armed when Arrested.” The same subject finds treatment in 20 American Jurisprudence, p. 272, Sec. 291.

The second point urged by appellant in his motion for rehearing is that we erred in not holding that bill of exception No. 5 presented error. The bill complains at the reception of evidence from Officer Wallis that when appellant was arrested his companion, Gil Casares, was armed with a pistol. We observe that at page 199 of the statement of facts appellant himself, while denying that he had a pistol at the time of his arrest, testified without objection that Casares had one, saying “because he (Casares) has been an officer there all of the time.” The bill in question may be disposed of on the general proposition so frequently announced that when evidence complained of goes into the record from another so,urce without objection no error is presented. See 4 Tex.Jur. p. 586, Sec. 414; Hudson v. State, 107 Tex.Cr.R. 330, 296 S.W. 573; West v. State, 116 Tex.Cr.R. 468, 34 S.W.2d 253; Pence v. State, 110 Tex.Cr.R. 378, 9 S.W.2d 348; Wagner v. State, 53 Tex.Cr.R. 306, 109 S.W. 169, and cases therein cited; McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54.

The third point in appellant’s motion questions the action of the court in overruling a motion for change of venue. The record on that point is precisely the same as found in Cause No. 20,298, Handy v. State, Tex.Cr.App., 138 S.W.2d 541. The record on the issue mentioned was closely scrutinized as is evidenced by the opinion in Handy’s case. The question was re-examined upon motion for rehearing in said case and the trial court’s action in declining to order a change of venue was sustained. Upon the same record here appellant’s contention is overruled.

Appellant has filed a supplemental motion for rehearing urging that the confession of appellant was obtained in violation of the “due process” clause of the Constitution of the United States (Amendment 14) and comes within the rule announced by the Supreme Court of the United States in Chambers et al. v. State of Florida, 60 S.Ct. 472, 84 L.Ed. —, decided February 12, 1940.

Said’ supplemental motion might be stricken from the record because filed so late, but because of the death penalty having been assessed we 'prefer to deal with the question on its merits.

This court is in harmony with the holding in the Chambers case, supra, as evidenced by the opinions of this court in Blackshear v. State, 130 Tex.Cr.R. 557, 95 S.W.2d 960; Abston v. State, 132 Tex.Cr.R. 130, 102 S.W.2d 428; Abston v. State, 136 Tex.Cr.R. 152, 123 S.W.2d 902, which opinions were written long before the Chambers case was decided. See, also, Sigler v. State, Tex.Cr.App., 139 S.W.2d 277, decided April 24, 1940, not yet reported [in State reports].

The point now urged was not presented on original submission, but since the filing of the supplemental motion we have been at some pains to examine the entire record as it relates to appellant’s present insistence. It is suggested in the motion that the officers obtained three confessions from appellant and that it was not until the third one that its contents were satisfactory to the officers. We think the record fairly construed does not support such a conclusion. Only one confession was used and nothing was said about any others until it was developed by appellant himself on his direct examination. He testified that the first confession related to the killing by himself and some of his co-defendants in the present case of a man named “Con-rado” at a point somewhere on the Rio Grande River. This confession was given sometime either Sunday night or Monday morning. If the officers had any information of the killing of “Conrado” up to the time appellant told them about it the record is silent. The conclusion might be drawn that appellant’s statements were not in accord with other information which the officers had — if they had any at said time about the killing they were investigating. On Monday appellant was taken to the river by some of the officers where he pointed out a place where “Conrado” was killed. Appellant was then taken back to the jail in Edinburg. Later he made a second statement about still another killing in which he and some of his co-defendants were involved. The name of the party killed on the occasion to which the second statement relates was not known, but it had reference to some transaction in which “morphine” figured, and after they obtained the morphine someone called “The Brush” by appellant went to sell it. Neither of these two statements had reference to a killing where a man and a woman were involved. On Wednesday or Thursday appellant made the confession regarding the killing of the unknown rilan and woman involved in the present case. Ap pellant admitted on cross examination that the two prior statements made by him were about other killings than the one for which he was then on trial. Unless we misapprehend the record the foregoing statement fairly explains how three statements became involved in the case, — put into it by appellant’s own evidence.

Appellant tells a story about his claimed treatment by the officers which induced him to make the several confessions which, if true, would put to shame the cruelties of the Spanish Inquisition. He attributes most of the claimed punishment was inflicted upon him by one Ingram, a deputy sheriff. Appellant claimed that Ingram tightened up the hand-cuffs until it was painful, hit him on the head and shoulders with a chain attached to the cuffs; suspended his body with the hand-cuff links over the top of a door and with his toes barely touching the floor; hit him with a blackjack, cursed him, calling him a liar and a s-of a b-. Appellant asserted that Ingram practically put the words of the confession in appellant’s mouth and that he told what was in the. confession because he was directed what to say and that he made and signed the statement “so they wouldn’t hit me any more.” Appellant claimed that Uncle Billy Brewster was present when appellant was being subjected to the treatment described.

It is not amiss to here state that Jose Rodriguez, one of the participants in the killing of the man and woman and the violation'of the woman against her entreaties; testified upon the trial detailing the horrible incidents of the murder of the man and woman, and ravishment of the latter by appellant and his confederates. The confession of appellant corroborates to the minutest detail the evidence given by Rodriguez. To our minds the confession itself refutes appellant’s claim that the statements in the confession were put in his mouth by Ingram or anyone else. The horrible details, it appears to us, could be related only by one present and participating in the crime. Ingram specifically denies all acts of cruelty or punishment and cursing and abusing attributed to him by appellant. He further testified that Brewster did most of the talking to appellant. Uncle Billie Brewster was 67 years old, and had been deputy sheriff for 35 years, and had known appellant for fourteen or fifteen years. He spoke Spanish as well as he spoke English. We quote from his testimony as follows: “I recall when this defendant was arrested and I first saw him in the jail in Weslaco, when I went down there with Mr. George Ingram and we talked to this defendant down there, but no one went down with George and me, although Manuel Munoz was with us after-wards. When we first went there to the jail to talk to this defendant, I did most of the talking and I talked to him some there by myself, but neither I nor George nor any one else down there beat or abused or mistreated this defendant in any way, and George Ingram did not hit him with a blac-kjack or a hilly club or hit him with chains in his face and neither did anybody else. After talking with this defendant down there, we came on up to Edinburg with him and talked to him here in Edin-burg, and, I, myself, did most of the talking to him, but neither George nor I, nor anybody else beat or abused or mistreated Chon Martinez in any way up here and I never saw anybody heat or abuse him, and if anybody is close to Chon it would have been me, and I would not have permitted anybody to have beaten him and if anybody has been with Chon it has been me, except when I have been sick, as, except when I have been sick, I have been around him every day and I have never seen any blood on him at any time. I was in there practically all of the time that Chon made this statement to Mr. Hartley and Mr. Chapa, walking in and out, and I remember when he made the third statement about this particular case here, and he told that story to me before it was taken down in writing and then Chápa was called and it was taken down and signed, and I did not use any force of any kind to get that statement and no force was used at the time that he made the statement to Chapa or at any time, since this defendant has been arrested.”

In addition to Ingram and Brewster the State called as witnesses in rebuttal of appellant’s testimony as to the treatment he claimed to have received, Charlie Wallis, W. C. Greer, Tom L. Hartley, S. B. Bled-soe, C. D. Carnahan, Lee Pettit, Dick Gilliam, Elmer Vickers, J. M. Chapa, A. G. McHenry, Fred J. Meyer, R. T. Daniel and Ben Brooks, Jr. It will be remembered appellant claimed that during- all the time he was giving the statements and during the time he was being questioned by the officers about the several statements made by him he was being abused, cursed and punished by Ingram, and being told by Ingram what statements to make. Unless appellant’s evidence is to be received and believed in preference to the several witnesses above named appellant’s testimony was far from the truth. Certainly the trial court and the jury were justified in rejecting his evidence and accepting that of the other witnesses on the issue joined between the State and appellant regarding the confession.

We doubt if in all the annals of crime in Texas or elsewhere there has been a more diabolical offense than the one reflected by the record before us. That very fact has impelled us to again examine the questions presented by appellant in his motion for rehearing, and to write at length thereon, being jealous that appellant be deprived of no rights to which he is entitled under the Constitution and laws of this state or the United States.

Believing that nothing is presented which calls for a disposition of the case different from that originally ordered, the motion for rehearing is overruled.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    TUCKER v. TUCKER et al.
    No. 5153.
    Court of Civil Appeals of Texas. Amarillo.
    May 6, 1940.
    R. H. Templeton and R. H. Cocke, both of Wellington, for appellant.
    Lewis M. Goodrich, of Shamrock, for ap-pellees.
   FOLLEY, Justice.

This is a partition suit filed by the appellant, Vera Tucker, the second wife of Oliver E. Tucker, deceased, against the children of Oliver E. Tucker by his first wife. During the marriage of Oliver E. Tucker and his first wife, Sadie J. Tucker, three children were born, J. N. Tucker, a son, and Ruth and Erma Tucker, two daughters. The daughters Ruth and Erma, at the time this suit was filed, were married to Levi Reid and Ed Riley, respectively. The three Tucker children were the defendants in the trial court and are the appellees here. The two daughters were joined by their respective husbands as defendants in the trial court and these husbands are appellees herein, but, since such husbands have no interest in the subject matter of this suit, hereafter, when referring to appellees, we shall mean to refer only to the three children above named of the first Tucker marriage.

In 1919, at the time of the death of Sadie J. Tucker, the first wife who died intestate, there was a community estate belonging to the first marriage consisting principally of an equity in 320 acres of land in Collingsworth County, Texas, and certain livestock, farming implements and miscellaneous personal property. In 1923 Oliver E. Tucker was married to the appellant, Vera Tucker. At that time the eldest of the three children was about seven or eight years of age. No children were born of the second marriage.

Immediately after the second marriage Oliver E. Tucker moved upon the land in Collingsworth County with his second wife and the three children of the first marriage. They there resided and farmed the land until 1928. In July of that year Oliver E. Tucker, who had qualified as community survivor of the estate of himself and his deceased wife, traded the equity in the land in Collingsworth County for 200 acres in Wheeler County, Texas. ' In such exchange Tucker executed a vendor’s lien note for $2,000 as part consideration, which amount represented the value of the Wheeler County land in excess of the value of the equity owned by the community estate in the Collingsworth County land. This $2,000 note was transferred to the Federal Land Bank of Houston. Oliver E. Tucker and the appellant, Vera Tucker, renewed and extended this indebtedness and executed a deed of trust to secure the same upon the Wheeler County land.

Immediately upon the purchase of the Wheeler County land the Tucker family as then constituted moved upon the land, farmed it and enjoyed the revenues therefrom until the'death of Oliver E. Tucker in 1933. In 1931, however, prior to her father’s death, Ruth Tucker was married to Levi Reid and thereafter resided in New Mexico. The daughter Erma continued to reside upon the land with her stepmother after her father’s death until she was married to Ed Riley in 1934. The son, J. N. Tucker, resided upon the land with his stepmother until about the time this suit was filed. During the year 1938 the land was rented to a tenant by the appellant but she continued to reside upon the premises.

In January, 1939 this suit was filed by the appellant alleging that she owned a one-half undivided interest in the 200 acres of land in Wheeler County and that the three children each owned an undivided one-sixth interest therein. She further asserted that from her separate funds she had paid a portion of the indebtedness against the property and had paid certain community debts, for all of which she sought an equitable lien on the interest of the appellees in the land. She further alleged that the land was not susceptible of partition, that the land and certain personal property should be sold, and after she had been reimbursed for the money she had advanced from her separate estate, she asked that the balance of the proceeds be paid to the parties as their interests might appear.

The appellees answered denying that the appellant owned a one-half interest in the land but did assert that she owned a one-fourth interest therein and that the appellees each owned an undivided one-fourth interest. They further denied that the appellant had paid any debts of any character from the assets of her separate estate and asserted that such debts had been paid from the rents and revenues from the land. The appellees, however, filed a trial amendment in which the assertion was made that the property involved, belonged to the first community and that the appellant had no interest therein.

The trial was before the court without a jury. Judgment was rendered that the appellees, J. N. Tucker, Erma Riley and Ruth Reid, recover the land in equal shares) subject, however, to an indebtedness ‘ of $668.86 due the Federal Land Bank; that the appellant should recover from the ap-pellees the sum of $1,359.11 found to have been expended by her from her separate estate for the protection of- the estate of the appellees; that such sum be declared a charge against the land; that such land was not susceptible of partition and should be sold subject to the indebtedness due the Federal Land Bank and the proceeds therefrom applied to the payment of' appellant’s claim, the remainder to be divided equally between the three children; and that all of the personal property be sold and one-half of the proceeds thereof be paid to the appellant and the other half divided equally between the appellees. The court also appointed appraisers and a receiver to carry out the orders of the court.

The chief complaints of the appellant here consist of an assertion that the court erred in failing to award her a life estate in the 200 acres of land and further erred in failing to set aside to her a homestead right in her deceased husband’s equity in the land. We think a complete answer to these contentions of the appellant is to be found in the findings of the trial court to the effect that the appellant by her pleadings abandoned her life estate and homestead rights in the property. The appellant asked only for partition of the property, claiming a one-half interest in the same, but at no time did she assert that she was entitled to a life estate or claim any homestead rights in the land. Not having presented such claims to the trial court she cannot successfully urge such matters in this court.

In his findings of fact and conclusions of law the trial court found that the appellant had expended from her separate estate the sum of $1975.34 for the protection of the estate of the appellees; that the value of the personal property on hand at the time the appellant was married to Oliver E. Tucker was $850; that the appellant had collected $191.23 rent from the land in 1938, the only year the land was rented; that the appellees were entitled to a credit of $425, which is one-half of the value of the personal property above mentioned, as an offset to the amount expended by the appellant from her separate funds; and that the appellees were further entitled to a credit of the $191.23 received by the appellant as rent in 1938. Therefore, in balancing accounts between the parties the court offset the $1,975.34 expended by the appellant with the two items of $425 and $191.23, leaving a balance due the appellant in the sum of $1,359.11, which was the amount charged a’gainst the land as above stated.

The appellant contends that, the court erred in failing to allow her a credit for other items alleged to have been expended by her from her separate estate which were not included in the $1,975.34 above mentioned. She further asserts that the court erred in not charging such items against the land of the appellees. The testimony shows that the appellant collected $1,892 insurance money upon the life of her deceased husband, which apparently constituted funds of her separate estate. So far as the record indicates no other property was owned by her in her separate right. Such being true we think the testimony was insufficient to warrant a finding of additional expenditures from her separate' estate over and above the $1,975.34 found by the court, and incidentally, we arc at a loss to know just how the appellant expended $1,975.34 from her separate estate which consisted of only $1,892, but certainly such discrepancy is a matter about which the appellant has no right to complain. There was testimony to the effect that the appellant was a practical nurse and earned some money employed in such capacity, but as to when she earned such money or the amount thereof, the record is entirely silent.

The appellees attempt to present several cross-assignments also seeking reversal of this case. Their chief complaint is that since the appellant enjoyed the rents and revenues from the land that she was therefore not entitled to a lien thereon for the advancements made by her from her separate estate. At the time the appellant so enjoyed the premises she possessed both homestead and life estate rights therein and, therefore, she and the appellees were tenants in common. Under such circumstances, in the absence of an ouster of her cotenants, she would not be liable to the appellees for the rents and revenues from the property. 11 Tex.Jur. 462, para. 39, and authorities cited.

Without extending this opinion further we deem it sufficient to state that under the pleadings, evidence and circumstances of this case, it is our opinion that the trial court made a fair and equitable division of the property between the parties, and that under the record presented no reversible error is shown. Therefore, all of the assignments of the appellant and appellees are overruled without further discussion.

The judgment is affirmed.


author: CODY, Justice.

text:
    ROSE v. BUCHANAN et ux.
    No. 10952.
    Court of Civil Appeals of Texas. Galveston.
    April 18, 1940.
    Rehearing Denied May 16, 1940.
    Wood, Morrow, Gresham & McCorquo-dale and Newton Gresham, all of Houston, for appellant.
    J. W. Ragsdale, of Victoria, and Calvin B. Garwood, of Houston, for appellees.
   CODY, Justice.

Appellees, Buchanan and wife, brought this suit to recover damages for injuries sustained by the wife in Victoria County about dusk on November 24, 1934. Appellees claimed that a loaded motor truck owned by appellant and operated by his employees broke down a bridge on November 18, 1934; which was on a public road in Victoria County, thereby creating a dangerous and hazardous condition; that appellant and his employees neglected to place any warning sign to warn the traveling public of the dangerous condition and failed to notify the proper legal authorities that the bridge had been broken that appellees were driving th'eir automobile along the road and crashed through the bridge, striking the opposite side of the depression which the bridge had spanned, with resulting injuries to Mrs. Buchanan.

Appellant answered by a general demurrer and general denial.

The suit was removed to Harris County on appellant’s plea of privilege and tried before a jury. Appellant introduced no evidence, but depended, in effect, upon a demurrer to the evidence. In response to special issues the jury found that the truck broke the bridge down; that this created a dangerous condition to the traveling public; that Mrs. Buchanan received her injuries as a direct result of the bridge being broken in; that appellant’s employees were negligent in failing to put out any warning sign of the broken culvert and such failure was the proximate cause of the injuries, and assessed damages at $12,-500.

We have concluded that the evidence failed to show, as a matter of law, that appellant violated any duty to appellees, and therefore his motion for an instructed verdict should have been granted.. It is not pretended that appellant, through his employees, made other than a lawful use of the road and bridge in question. We quote the following excerpt from appellees’ brief, as the presentation of appellee’s position:

“It is a fallacious premise for a person to assume that he may, while doing a lawful act in a lawful manner create a condition in which another may be injured, and yet the first party be excused merely because the condition which caused the injuries was done in a lawful manner. There are many incidents * * * in which a person may be doing a lawful act in a lawful manner and yet be responsible for injuries caused as a result of said acts.

“It would be contrary to all rules of fairness to spurn with impunity the rights of others because a person is doing a lawful act in a lawful manner.

“In the present case there is in the ap-pellees’ opinion, and should be, a duty to. warn future travelers or users of a public highway of a dangerous condition created through the acts of the appellant. The act of breaking was not negligence, and is not sought to be proved (negligent), but the omission of appellant in not warning future travel in some manner was negligence.”

Appellees also rely on Simonsen v. Thorin, 120 Neb. 684, 234 N.W. 628, 629, 81 A.L.R. 1000. In that case the defendants accidentally knocked a trolley pole down and did not remove it, and were held liable for injuries to subsequent travelers. The court said in part: “It appears that the defendants, in the operation of their automobile on the public street, accidentally hit a trolley pole without negligence on their part. * * * However, the operation of their automobile was their voluntary act and in the course of such operation they did cause the obstruction to be placed in the street.' They cannot be said to be in the position of a bystander who is under no legal obligation to remove or guard said pole. * * * But when one engaged in the lawful use of the highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others where he knows that said obstruction is calculated to do injury to travelers upon said highway. The negligence in such a case consists of having placed an obstruction upon the street, and leaving it in such a manner as will be dangerous to others using the street. It is unlawful, reads our statute, to ‘cause to be left upon any public road (or) street * * * any * * * broken substance whatever, liable to injure any person * * * or vehicle.’ * * * The situation in such a case is not unlike that of a private contractor who opens up an excavation in the street, which is a lawful act and done without negligence, but he is required to use ordinary care in preventing injury to others.” The writer of the note, following the report of the case in 81 A.L.R., at page 1004, says: “No other case has been found that goes quite so far as does tire Nebraska Court in Simonsen v. Thorin * * * in holding that the owner of a truck which accidentally knocked a trolley pole into the street owed to travelers gsnerally the duty to warn them of the obstruction thus created. * * * A statute making it unlawful to cause any broken substance to be left upon the highway is relied upon as making a violation thereof evidence of negligence.”

It would seem clear that the holding of the Nebraska court is not applicable here. There the defendants not only had the right, but by statute owed the duty to remove the obstructing pole from the highway. Here we can think of no principle upon which it can be said that appellant (defendant below) had either the duty or right to repair the bridge, and it is not even contended that defendant had either such right or duty. Lucas v. Ry. Co., 174 Mo. 270, 73 S.W. 589, 591, 61 L.R.A. 452, referred- to in the Simonsen case in support of the principle that the law imposes no obligation on a mere bystander to repair a dangerous condition (and, of course, none to give warning thereof), which was recog--nized by the Nebraska court, holds: “all of the adjudicated cases wherein a citizen has been held liable for an obstruction or nuisance in a highway have been cases where the person held liable placed the obstruct tion or nuisance on the highway, or was under some duty to remove it.” (Citing authorities.) If the appellant had neither the duty nor the right to repair the culvert, i. e., to remove the dangerous condition, and did not wrongfully cause the dangerous condition, on what principle can the duty be imputed to continue to give warning of such condition until it has been removed by those charged with the duty of maintaining public roads? Above all, if appellant’s employees were operating the truck, at the time the bridge was broken, in a .manner that fulfilled the requirements of the law, how can it be said in legal contemplation that they caused the bridge to break —in such case they were the victims of the breaking of the bridge, and are fortunate to have suffered no injuries. If appellant’s employees were operating the truck on the occasion in question in a manner that fulfilled the requirements of the law, the breaking down of the culvert by such lawful operation was not the fault of appellant, and the excerpt quoted from appellees’ brief above frankly recognizes this, and-does not seek to base appellant’s liability; on the dangerous condition of the road after the culvert was broken down, but upon! appellant’s superior knowledge of that condition, and the alleged duty which such superior knowledge imposed to give warning, of such dangerous condition, and the failure to give warning of such condition. It would scarcely b,e argued that those who used the road during the interval of some four to six days, between the time the culvert war broken down and the injuries of Mrs. Bus lanan occurred, were under any-duty to p'-.t out warnings of the condition of the road with the culvert broken down, though their knowledge of the dangerous condition was equal to that of appellant, and of appellant’s employees. This is true because such subsequent users occupy the status of mere innocent bystanders in relation to the breaking down ól^lie bridge. Now, if an innocent bystander to the breaking down of the bridge was free of^ the duty to post warnings of the broken condition of the bridge, notwithstanding his knowledge of such dangerous condition, how could the first victim of the breaking down of the bridge (i. e., appellant here) be under such a duty? For if the employees of appellant were operating the truck in a manner to fulfill the requirements of the law at the time of the breaking of the bridge, they were, before the law, as surely the victim of- the breaking bridge as were appellees later of the broken bridge. We fail to see how an innocent victim of an occurrence can, by reason of such occurrence, owe any greater duty to the public arising out of such occurrence, than an innocent bystander in relation to such occurrence can owe. We have always understood that fulfillment of the law is a complete justification (that is, makes just or lawful).

When appellees concede that appellant’s truck was operated so as to fulfill all requirements of the law when the bridge! was broken, then no duty remained for ap-; pellant to discharge, and the breaking of! the bridge was but the consequence of the lawful usé of the road at the time the bridge was broken. We are unable to see bow appellant could owe the duty to warn appellees six days later that a dangerous condition, for which he was in no wise responsible, existed.

Appellant relies upon Williams Bros. v. Brannon, 182 Ark. 361, 31 S.W.2d 403, 404. In its facts it is quite similar to the instant case. In reversing and rendering the case the court said: “There is no intimation that appellant was making any unlawful use of the highway, nor is it contended that the mere breaking of the bridge in question by the appellant and its failure to repair the same would render it liable; the contention in this case being that the conduct of the appellant after the bridge was broken in throwing the timbers and planks out to one side and leaving .the ditch open created a dangerous condition, thereby by its voluntary act creating a nuisance, in that such was a wrongful obstruction .and impairment of the public highway.”

As appellant’s employees did no voluntary act changing the structural conformation of the road, including the bridge, the case for the defendant is stronger here than in the Arkansas case.

The court should have instructed a verdict for appellant. The judgment, therefore, will be reversed and here rendered for appellant.

Reversed and rendered.

On Appellees’ Motion for Rehearing.

We do not doubt that the posting of warnings of the dangerous condition of the road because the bridge was broken would have been a public spirited act. But no legal obligation rested on appellant to post, or cause to be posted, such notice because the culvert broke down when his truck was being driven over it. The admission by appellees that appellant is hot liable as a wrongdoer because of the breaking down of the culvert, and that liability for damages can be sustained only on some ground other than appellant being a wrongdoer in connection with breaking down the culvert, such as failure to warn probable, users of the road of its dangerous condition, establishes that. If an obligation topost warnings of the dangerous condition, of the road was not imposed upon appellant' because the culvert broke down while his truck was driven over it, such obligation could have been imposed on appellant only because of the knowledge which his truck-driver acquired when driving appellant’s truck, and because such knowledge is imputed to appellant. In other words, to hold appellant liable for injuries resulting from his truck driver’s failure to perform a public spirited and humanitarian service is pressing the doctrine of the employer’s liability for his employee’s action out of all bounds. And the truck drivers of all other trucks, if any, who learned of the bridge being broken before the injury occurred, were under the same obligation to perform such humanitarian service as was appellant’s truck driver; and it would be" strange if their failure to perform such service rendered their employers liable in damages. However, even if the appellant had been driving his truck in person, we fail to see how his failure to render such public spirited and humanitarian service could render him liable in damages. The truth is that a large sphere of human conduct must be left to the conscience of the individual. The duty which devolves upon one because he possesses special talents, large wealth, or knowledge of particular dangers that others may encounter in the way, to use his talents, wealth, or knowledge for the benefit of others can best be dealt with in the court of the individual’s conscience. The duty of appellant’s truck driver to impart his knowledge of the hazard of the broken bridge to probable users of the road is a duty of this character, a moral duty, and for its breach his employer is not answerable in a court of law.

Motion refused.


author: MURRAY, Justice.

text:
    CLARKSON et al. v. RUIZ et al.
    No. 10672.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    Rehearing Denied April 24, 1940.

      Frank T. Morrill and Perkins & Floyd, all of Alice, and Boone, Henderson, Boone & Davis, of Corpus Christi, for appellants.
    Lloyd & Lloyd, of Alice, Bobbitt, Williamson & Derby, of San Antonio, and Felix A. Raymer, of Houston, for appellees.
   MURRAY, Justice.

This is the second appeal of this case. Our opinion on the first appeal is to be found in 108 S.W.2d 281, 286. It would serve no useful purpose to here reiterate all of the facts stated in that opinion, but it will be sufficient to refer to and adopt that opinion as a part of this opinion, insofar as it is applicable on this appeal.

In our former opinion we affirmed in part and reversed in part the judgment of the trial court, with the following statement: “As to said excepted appellees [Geo. B. Parr, Thelma D. Parr and Humble Oil & Refining Company] the judgment will be reversed and remanded, for the purpose of having the trial court determine whether or not the sale of Clarkson’s interest in Survey 553, by virtue of the power of sale in the deed of trust, was a valid sale, and for the further purpose of partitioning, if proper, Survey 553 between the joint owners thereof; it having been decided that the minor, Eliza Robles, is the owner of a two-twelfths undivided interest in said Survey 553, and whether or not Mrs. Clarkson is the owner of a five-twelfths undivided interest in this survey, being dependent upon whether or not the trustee’s sale is found to be valid or invalid. The trial court should also determine what sums of money, if any, are due by Humble Oil & Refining [Company] to Eliza Robles and to Mrs. Clark-son, if she be found to own an undivided interest in Survey 553.”

In keeping with these instructions the trial court retried the case, submitted the issues to the jury, and rendered judgment in keeping with the jury answers. The decree, among other things, awards the undivided interest in Survey 553, asserted by Mrs. J. F. Clarkson, to Mrs. Thelma D. Parr. From this judgment Mrs. J. F. Clarkson, individually and as independent executrix of the -estate of J. F. Clarkson, deceased, and the cross-defendants, Hood Boone and Jacob S. Floyd, have prosecuted this appeal.

Appellants, by their first proposition, contend that the evidence clearly established the fact that they could not obtain a fair and impartial trial in Duval County, and that the trial judge abused his discretion in refusing to change the venue of this cause. .

Appellants placed a number of witnesses on the stand who testified, in effect, that appellants could not secure a fair and impartial trial in Duval County. Appellees also placed a number of witnesses upon the stand who testified, in effect, that appellants could secure a fair and impartial trial in the county. The trial judge who saw the witnesses and heard them testify resolved this conflicting testimony in favor of appellees and overruled the motion for a change of venue. In doing so he did not abuse his discretion. Gannaway v. Trinity Universal Insurance Company, Tex.Civ.App., 85 S.W.2d 345, writ refused; Herd v. Wade, Tex.Civ.App., 63 S.W.2d 253; Freeman v. Cleary, Tex.Civ.App., 136 S.W. 521, writ refused; Barrow v. Barclay, Tex.Civ.App., 269 S.W. 235, writ refused; Ferguson Seed Farms, Inc., v. Fort Worth & D. S. P. Ry. Co., Tex.Civ.App., 100 S.W.2d 177.

By their second proposition appellants contend that G. B. Parr and his wife, Thelma D. Parr, under all the facts and circumstances, are estopped to assert title to the Clarkson sharé in Survey No. 553. We overrule this contention. It is true that after the sale of the Clarkson interest in Survey 553, by the substitute trustee, G. B. Parr was both a party and an attorney in a partition suit in which a partition was attempted between Mrs. Clarkson and G. B. Parr of this survey. It is also true that the instruments involved in the substitute trustee’s sale (except the deed of trust) were not recorded until about seven years after the sale was held, on October 2, 1928. It is also true that when G. B. Parr and Thelma D. Parr filed their cross-action setting up title to all of Survey 553, they alleged they were joint owners. However, it is also true that Mrs. Thelma D. Parr was not a party to the original partition suit and cannot be bound by anything which her husband may have done in that suit. Any advantage which G. B. Parr may have gained by the partition had in cause No. 3516, was lost when that partition was set aside for lack of proper parties, as pointed out in our original opinion in this cause.

Appellees offered evidence to the effect that Mrs. Parr purchased the Clark-son interest in Survey 553 with her separate money and. took title thereto in her own name. These facts, together with other circumstances, were sufficient to support the implied finding of the trial court to the effect that the Clarkson interest in Survey 553 was the separate property of Thelma D. Parr. Kearse v. Kearse, Tex.Civ.App., 262 S.W. 561, affirmed Tex.Com.App., 276 S.W. 690; Emery v. Barfield, Tex.Civ.App., 156 S.W. 311. Such finding was also supported by the pleadings. Where two parties allege in a trespass to try title suit that they are joint owners of property, proof may be offered that the property is the separate property of either. Art. 1983, R.C.S.1925; 41 Tex.Jur. § 78, p. 557; Anderson v. Anderson, 95 Tex. 367, 67 S.W. 404.

We conclude that, under all the circumstances, Geo. B. Parr would not be estopped to contend that Mrs. Clarkson did not own any interest in Survey 553, but certainly Thelma D. Parr had done nothing to estop her from claiming the Clarkson interest in Survey 553. Thompson v. Crim, 132 Tex. 586, 126 S.W.2d 18; Harle v. Texas Southern Ry. Co., 39 Tex.Civ.App. 43, 86 S.W. 1048; Ayres v. Fellrath, 5 Tex.Civ.App. 557, 24 S.W. 347; First State Bank of Tomball v. Tinkham, Tex.Civ.App., 195 S.W. 880, affirmed 109 Tex. 296, 206 S.W. 927.

The fact that the trustee’s deed to Thelma D. Parr was not recorded for nearly seven years after it was executed would not of itself divest Mrs. Parr of her title to Survey 553. Simonds v. Stanolind Oil & Gas Co., Tex.Sup., 114 S.W.2d 226; Holland v. Blanchard, Tex.Civ.App., 262 S.W. 97, 101.

Appellants’ third proposition is somewhat multifarious and duplicitous, but as we understand the proposition appellants are complaining therein because notice of the sale by the substitute trustee of Survey 553 to Thelma D. Parr was given only by posting of notices and was not also given by publication in a newspaper. The deed of trust, under which the sale was made, provided for a sale of the property in case of default in the payment of the indebtedness, and provided for notice in the following language: “first giving notice of the time, place and terms of the sale for at least twenty days successively next before the day of sale, by posting up written or printed notices of such sale at three public places in the County of Duval, State of Texas, one of which shall be at the Court House door of San Diego of said County, and by giving such other notice as is, or may be, required by law.”

Article 28, R.C.S.1925, which was in effect on and about October, 1928, the time the sale was held, read as follows: “Whenever by law notice is required to be given of any act or proceeding, whether public or private, or relating to a judicial, executive or legislative matter, which notice is now authorized by law or by contract to be made by posting notices in one or more public places, such notices shall be given by publication thereof in a newspaper of general circulation which has been continuously and regularly published for a period of not less than one year, in the county in which said act or proceeding is to occur. Nothing in this article shall be construed to require the publication of any general election notice, public road notice or probate notice when the appraised value of the estate in which same is issued is less than one thousand dollars, nor shall this article apply to sales made under a written contract wherein it is provided that notice of sale thereunder may be posted. All notices published hereunder shall be printed at least once each week for the period of time now required for posting such notices. If no paper should be published in the county where such notice is required to be given, then such notice may be posted as now provided by law. * * *"

It is appellants’ contention that when the provisions of the deed of trust are construed in connection with Art. 28, supra, publication of the notice of sale in a newspaper was required. We overrule this contention.

Art. 3810, R.C.S.1925, provides in part as follows: “All sales of real estate made under powers conferred by any deed of trust or other contract lien shall be made in the county in which such real estate is situated. * * * Notice of such proposed sale shall be given by posting written notice thereof for three consecutive weeks prior to the day of sale in three public places in said county or counties, one of which shall be made at the courthouse door of the county in which such sale is to be made, * * * or the owner of such real estate may, upon written application, cause the same to be sold as provided in said deed of trust or contract lien. * * * ”

It will be noticed that the deed of trust herein provided for notice of sale in the very language of the above article, with the addition, “and by giving such other notice as is, or may be, required by law.” An examination of Art. 28, supra, shows that it contains the following provision: “nor shall this article apply to sales made under a written contract wherein it is provided that notice of salé thereunder may be posted.” C. T. Stansell, Jr., the substitute trustee, gave notice by posting, and- that was all the notice that was required under the deed of trust, or under the statutes.

Appellants’ fourth proposition is without merit and is overruled.

The trial court, by means of a number of special issues, submitted to the jury the matter of appointing the substitute trustee. The jury, by their answers, found that Vicente Salinas, the original payee in the note secured by the deed of trust, asked the original trustee to sell the property, and that such trustee, J. R. Salinas, refused to act, whereupon the then owner and holder of the indebtedness, G. B. Parr, appointed C. T, Stansell, Jr., substitute trustee.

It appears from the record that at the first trial G. B. Parr testified that he asked J. R. Salinas to act as trustee and sell the land and that she refused, whereupon he appointed C.' T. Stansell, Jr., as substitute trustee. Sometime prior to the second trial of this cause the deposition of Vicente Salinas was taken, and in his deposition he swore that he and G. B. Parr, together, asked his wife, J. R. Salinas, to act as trustee and that she refused. However, at the trial Vicente Salinas was called as a .witness and repudiated his deposition and tes-tified that he did not ask J. R. Salinas to act as such trustee. G. B. Parr testified that he and Vicente Salinas, jointly, asked J. R. Salinas to act as trustee under the deed of trust and she refused. J. R. Salinas testified that neither her husband nor G. B. Parr asked her to act- as trustee and that she did not refuse to so act. Under this conflict of evidence the matter was submitted to the jury, and they found that Vicente Sali-nas did request J. R. Salinas to act as trustee and that she did refuse. Appellants contend that these findings of the jury were contrary to the overwhelming weight and preponderance of the evidence and should be set aside by this Court. We conclude that there is evidence to support the findings of the jury. It was the duty of the jury to \*eigh the evidence and pass upon the credibility of the witnesses, and, having given credit to the testimony of G. B. Parr and the deposition of Vicente Salinas, it is not within the power of this Court to say that this testimony could not have been believed by the jury.

Appellants’ sixth proposition is without merit and is overruled.

Appellants next contend that Hood Boone and Jacob S. Floyd were, in effect, innocent purchasers of the interest held by them in Survey 553, they having acquired such interest before any of the instruments' involved in the foreclosure of the deed of trust lien against the Clarkson interest in Survey 553 were recorded, other than the original deed of trust, and before Mrs. Thelma D. Parr asserted any ownership of the Clarkson interest in Survey 553, by virtue of the substitute trustee’s deed to her..

When Mrs. Clarkson decided to institute this suit to set aside the partition granted by the decree in cause No. 3516, whereby she was given the east one-half of Survey 553, and George B. Parr given the west one-half, she employed Hood Boone and Jacob S. Floyd to conduct such litigation for her. She executed to them one note for the sum of $1,000 secured by a lien upon five-twenty-fourths interest in the minerals under the east one-half of Survey 553. This note was dated March 9, 1935, and the instrument securing it filed for record March 12, 1935. Also, on March 9, 1935, Mrs. Clarkson executed a note in the sum of $10,000, payable to Hood Boone and Jacob S. Floyd, secured by a lien on five-twenty-fourths interest of the minerals under the west half of Survey 553. The $10,-000 note provides that it is payable out of five-twenty-fourths of the oil and/or gas produced from the west half of Survey 553, and conditioned that Hood Boone and Jacob S. Floyd had been employed by her to set aside the partition decree in cause No. 3516, and this further stipulation: “It is understood that in the event said suit herein provided for is instituted and said decree is not disturbed as a result thereof, and said property remains partitioned as reflected by said decree herein referred to, then this obligation is to be null and void; otherwise it is to remain in full force and effect,” and “it is still further understood that should said suit be compromised and settled out of court, and I receive less than the interest asserted by me, then this obligation shall be reduced to Five Thousand and no/100 ($5,000.00) Dollars.” It is also shown that at the time these two notes were executed neither Mrs. Clarkson, Hood Boone - nor Jacob S. Floyd knew of the foreclosure of the Clarkson interest in Survey 553, under the deed of trust, nor had Mrs. Thelma D. Parr recorded the deed which had been executed to her by the substitute trustee.

Hood Boone and Jacob S. Floyd, under such circumstances, were not innocent lien holders as to five-twenty-fourths of the minerals under Survey 553, to secure the payment of these two notes. In the first place, their fee was a contingent one. They were to receive only $1,000 if they lost, but $11,000 if they won, and $6,000 if the cause was compromised for less than the property sued for. In the second place, they were employed to bring suit for the very land, the mineral rights under which they were taking a lien on. The west half of the survey had been decreed to belong to the Parrs and the attorneys were bound to know that, unless they could recover an interest in this west half for Mrs. Clarkson, their lien would be worthless. As to the east half, there was the deed of trust from J. F. Clarkson to J. R. Salinas, trustee, for the benefit of Vicente Salinas, on record. The attorneys did not examine the record title to Survey 553. This fact alone would preclude them from being innocent holders of the lien on the minerals under the east half, as against the true owners. West v. Peters, Tex.Civ.App., 287 S.W. 81.

If the attorneys had examined the records they would have found the deed of trust from J. F. Clarkson to Salinas, and that the same had never been released. This would have put them upon inquiry, which, if diligently pursued, would have, in all probability, lead to a discovery of the foreclosure under the power in the deed of trust. Martin v. Thaxton, Tex.Civ.App., 103 S.W.2d 877; Hopper v. Tancil, Tex.Com.App., 3 S.W.2d 67; Houston Oil Co. v. Hayden, 104 Tex. 175, 135 S.W. 1149.

In Pipkin v. Ware, Tex.Civ.App., 175 S.W. 808, it is held that attorneys, employed by a grantor to recover lands by setting aside an earlier conveyance, who as compensation received a conveyance of part of the land in controversy, are not bona fide purchasers.

Appellants’ ninth, tenth and eleventh propositions are without merit and are also overruled.

The judgment is affirmed.


author: WALKER, Chief Justice.

text:
    FARMERS STATE BANK v. CRAWFORD.
    No. 3635.
    Court of Civil Appeals of Texas. Beaumont.
    March 21, 1940.

      Lane & Anderson, of Center, for appellant.
    E. B. Lewis, of Center, for appellee.
   WALKER, Chief Justice.

This suit was filed in justice court, precinct No. 1 of Shelby county, by appellee, E. W. Crawford, against appellant, Farmers State Bank, of Center, Texas, to recover the sum of $186.88. By amendment, M. O. McDowell was made a party defendant. On trial in justice court and on appellant’s appeal to county court, judgment was entered in favor of appellee against appellant, and in appellant’s favor over against McDowell, for $186.88.

The facts are as follows: On or about the 26th day of June, 1934, McDowell sold to appellee on a cash consideration of $4,700 certain real estate, a part of which was in the city of Timpson, Shelby county; both by special agreement and by his warranty deed to appellee, McDowell was obligated to pay all delinquent taxes against this property. At the time McDowell delivered to appellee his deed and appellee paid the cash consideration, they agreed — and appellant was a party to the agreement — that McDowell should deposit with appellant the sum of $309.22, the estimated amount of delinquent taxes, to the account of Crawford and McDowell, and that appellant should hold this money in this account until the taxes were paid. The agreement did not contemplate that the taxes should be paid from this fund, nor that appellant was bound to see that this fund was applied to the payment of the taxes. The agreement was simply that appellant should hold the fund until the taxes were paid, and when they were paid to release the fund, or any balance left therein, to McDowell. Appel-lee testified that the $309.22 deposited to the account of Crawford and McDowell in appellant bank was a part of the purchase price of the real estate, sold to him by McDowell, paid by him to McDowell, and that he was not to receive back any part of the money under any circumstance, and that what was left of the money after the taxes were paid, or after proper receipts and releases therefor had been obtained, belonged to and was to go to McDowell; that it was none of his concern how or with what money McDowell paid the delinquent taxes, or in what manner he satisfied the taxes; that it was agreed at the time the sale was made that McDowell should have time in which to work'out and adjust the taxes, or to ascertain the correct amount of the delinquent taxes owing by him to the Timp-son Independent School District and the City of Timpson. On the day the deposit was made, McDowell, by check on the fund deposited to the credit of Crawford and McDowell, paid the delinquent state and county'taxes against the property sold by him to appellee in the amount of $122.34. On that day appellant transferred the balance of the fund to McDowell’s personal account. Appellee has paid no delinquent taxes against the property, though he has been sued by the Timpson Independent School District and the suit is still pending, for the sum of $151.40; there was no showing that this tax was in fact due. There was no showing as to the amount of delinquent taxes assessed against the property by the City of Timpson. McDowell testified, and there was no testimony to the contrary, that he was able, ready, and willing to pay all taxes chargeable against him under his warranty.

The judgment in justice court, and on appeal in county court, was rendered on the theory that, quoting from appellee’s brief: “The amount of money involved in this suit was and is the money of the plaintiff, E. W. Crawford. * * * All of the facts show that the money in this suit is the money, of E. W. Crawford. * * * This amount of money, to-wit, $186.88, is deposited in the name of Crawford and McDowell and the undisputed proof shows that the amount of money belongs to E. W. Crawford.” Appellee’s theory of his case has no support in the record. The amount of money in controversy was in no sense the property of appellee. This money belonged to McDowell, and was left by him on deposit with appellant to secure the due performance by him of his warranty obligation to appellee.

McDowell’s obligation to appellee on his warranty was in the nature of indemnity against loss, and appellant’s obligation to appellee was to hold the fund in issue as security for the due execution by McDowell of his warranty obligation. Whether or not, on the facts, appellee has a cause of action against appellant is not before us; we simply hold, on the undisputed facts, that the fund in controversy does not belong to appellee.

The judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.