author: HAWKINS, Presiding Judge.

text:
    BROOKS v. STATE.
    No. 20823.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Greenwood & Reeves, of Palestine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for possessing for the purpose of sale in dry area an alcoholic beverage containing alcohol' in excess of ½ of one percent by volume, and not more than 4% by weight, punishment assessed being a fine of $150.

The State, through our State’s Attorney, suggests that perhaps the State’s pleading is defective in omitting to allege the publication of the result of the prohibition election in Anderson County upon which reliance is had to support the claim that said county is dry territory. Appellant did not seek to quash the complaint and information because of said omission but insists that the State’s case falls by reason of a failure to prove publication of the result of said election.

In view of the averments in the complaint and information we are of' opinion that both the State and appellant are not supported in their positions.

Of course, it has been held many times that local option does not -become effective until the order declaring the result of the election therefor has been published as required by the statute. See Branch’s Ann. Tex.P.C. sec. 1232, p. 696; Watson v. State, 135 Tex.Cr.R. 632, 122 S.W.2d 311 and cases therein cited; Sweeten v. State, 135 Tex.Cr.R. 445, 120 S.W.2d 1074 and cases therein cited. It has been held even in cases where the publication of the result of an election as declared by the Commissioners’ Court has been enjoined by court proceedings that the publication must still be made when the injunction is dissolved. Griffin v. State, Tex.Cr.App., 87 S.W. 155; Ex parte Brown, 35 Tex.Cr.R. 443, 34 S. W. 131. It will be observed that in the character of cases last mentioned as well as the others referred to the State relies on the orders and publications of the Commissioners’ Court, which are controlled by the statute, and therein lies the difference between those cases and the one now before us.

It is alleged in the State’s pleading that Anderson County was “dry area” by reason of a valid prohibition election held in said county in July, 1913; that upon a canvass of the returns of said election the Commissioners’ Court declared the result to be against prohibition; that upon a contest of said election duly tried in the District Court it was adjudged that said election had resulted in favor of prohibition. The judgment of the District Court is set out in the State’s pleading, and shows that the State is relying on that judgment, and not upon the declaration of the result by the Commissioners’ Court. .It is true the judgment recites that the clerk of the District Court is directed to select a paper and make publication of the judgment for four successive weeks. There is no proof that such publication was made. We regard that as immaterial. The notice would have apprised those interested in the matter, but there was no statute requiring notice of the judgment of the District Court to be published, and notice was not a prerequisite in making effective the judgment of said court. The judgment itself was notice to the world, as it was very properly held to be in Bickers v. Lacy, Tex.Civ.App., 134 S.W. 763, 765. We copy from the opinion in said case the following':

“The case of Chenowith v. State, 50 Tex. Cr.R. 238, 96 S.W. 19, and others cited by appellant, holding that a local option prohibition law does not go into effect until the county judge has caused publication of the result of the election as prescribed by the article before cited, are cases in which the commissioners’ court had declared the result of the election to be in favor of prohibition, and not cases in which that result was declared by a judgment of a district court in a contest proceeding brought for that purpose. An election contest is a proceeding in rem, and a judgment in such proceeding is binding and conclusive upon all the world. Evans v. State, 55 Tex.Cr. R. 450, 117 S.W. 167.
“Such being the character of the contest proceeding, all persons are charged with notice of. the judgment therein rendered, and therefore no publication of said judgment is deemed necessary, and none is required by the statute. It may be that the district court had no authority to order the publication of the judgment, but such order in no way .affected the validity of the judgment declaring that prohibition carried in such election. The judgment was effective without any publication, and not having been appealed from or set aside, but being in full force and effect, the local option prohibition law against the sale of intoxicating liquors thereby became operative in Leon county * *

It follows from what has been said that under the circumstances mentioned it was neither necessary to allege nor prove the publication of the result of said election.

Complaint is brought forward in bills of exception numbers two and three at receiving in evidence the result of a search of appellant’s premises upon the ground that the search warrant was not introduced in evidence. It would have been improper for the State to have introduced before the jury the search warrant. No complaint is made charging that the affidavit for the search warrant was insufficient or that the warrant itself was irregular.

Bills of exception six and seven present errors which demand a reversal of the judgment. Said bills reveal that over objection of appellant the State introduced in evidence the complaint and information in causes Nos. 9348, 9356 and 9418, which charged appellant with possessing beer for the purpose of sale in Anderson County on August 23, 1938,.and with the same offense on September 8, 1938, and with maintaining on February 7th, 1939 a common nuisance in that he maintained a house in said county where intoxicating liquor was sold without a permit from the Texas Liquor Control Board. It appears from the judgment entered that the two first named cases were consolidated and by agreement a judgment was entered on November 16, 1938, convicting appellant of maintaining a common nuisance, and that a similar judgment was entered on April 4, 1939 in cause No. 9418. These judgments were likewise introduced over objection of appellant. ' The objections urged were that the complaints, in-formations and judgments related to transactions which were separate and distinct from the transactions for which appellant was presently on trial, the charge in this proceeding being that appellant possessed for the purpose of sale an ■ alcoholic beverage on May 20, 1939.

It has been held that where one was on trial for possessing intoxicating liquor for the purpose of sale, it was admissible on the question of intent or purpose to prove sales of such liquor at times not too remote. See Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563; DeShazo v. State, 97 Tex.Cr.R. 490, 262 S.W. 764; Griggs v. State, 99 Tex.Cr.R. 215, 268 S.W. 940; McLendon v. State, 101 Tex.Cr.R. 128, 274 S.W. 159; Moreno v. State, 122 Tex.Cr.R. 178, 54 S.W.2d 509. Further than as indicated this court has not gone. To sanction the evidence of the charges and judgments objected to would in our opinion violate the general rule against proof of other offenses unless they fall within some of the exceptions. ' See Branch’s Ann.Tex.P.C. sec. 166, for collation of many authorities. In Weatherred v. State, 100 Tex.Cr.R. 199, 272 S.W. 471, 472, appears the following very pointed and true statement of the principle here violated: “No principle is better understood than that proof of the connection of A. with a given crime cannot be made by proof of the fact that at a prior date he did a similar thing.” The question under consideration was thoroughly discussed and many authorities were reviewed in Lawrence v. State, 128 Tex.Cr.R. 416, 417, 82 S.W.2d 647. Nothing can be added to what was there said.

The purpose accomplished by introducing the evidence objected to was to lay a predicate for the jury to reach the conclusion, and perhaps support an argument to the same effect, — that because appellant on former occasions had been convicted of practically the same offense as presently charged he was therefore guilty of the offense charged in the present complaint and information.

For the error committed in receiving in evidence the judgments and pleadings in the former cases the judgment must be reversed and the cause remanded, and it is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    CALLOWAY v. STATE.
    No. 20892.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile on a public highway while appellant was intoxicated. Punishment assessed is a fine of $50.

The indictment is in proper form. No statement of facts or bills of exception are found in the record. In such condition nothing is presented for review.

The judgment is affirmed.


author: BEAUCHAMP, Judge.

text:
    McPHERSON v. STATE.
    No. 20895.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    T. B. Sisco, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for the offense of driving an automobile upon a public highway while intoxicated, and his punishment was assessed at confinement in the county jail for five days and a fine of $50.

The record is before this court without statement of facts or bills of exception. The appellant entered a plea of guilty to the offense charged and waived a jury upon the trial.

No error having been shown by thq record before us, the judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    BOONE v. STATE.
    No. 20877.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    R. G. Allen, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   CHRISTIAN, Judge.

The offense is possessing whisky in a container to which no tax stamp was affixed showing the payment of the tax due the State of Texas; the punishment, confinement in jail for thirty days.

Officers went to the home of appellant on the 15th day of July, 1939, and found therein a gallon of whisky in a container bearing no tax stamp showing that the tax due the State of Texas had been paid. According to the testimony of the officers, appellant admitted that the whisky belonged to her. Appellant did not testify but introduced her son who said that “the house where the liquor was found was the home of the defendant and himself.” He also testified that other people lived in the house.

The evidence is deemed sufficient to support the conviction.

If it should be conceded that the search of appellant’s residence was illegal, it is observed that appellant’s son gave testimony showing the presence of the whisky in said residence. Under the circumstances, reversible error is not presented. At all events, the bills of exception in which complaint is made of the search are insufficient, in that they embrace no statements verifying the truth of appellant’s objections. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch’s Ann.Texas P.C., Section 209; Edelen v. State, 103 Tex.Cr. R. 562, 281 S.W. 1078.

The judgment is affirmed.

PER CURIAM.

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


text:
    PRUETT v. STATE.
    No. 20893.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile upon a public highway while appellant was intoxicated. Punishment assessed is a fine of fifty dollars and five days in jail.

The indictment properly charges the offense. The record contains neither státement of facts nor bills, of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    DORRELL v. STATE.
    No. 20867.
    Court of Criminal Appeals of Texas.
    March 6, 1940.

      Henry Adams, of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Cherokee County for violation of the liquor laws and was given a sentence of 120 days in jail.

This appeal is based on two bills of exception. Other questions are raised by the attorney’s brief but are not properly presented to this court for its consideration and will not be discussed.

The first bill of exception relates to a nunc pro tunc order for the purpose of curing an error in the' date involved in the local option election in Cherokee County in 1901. This bill is without merit and is overruled.

By bill of exception No. 2 it is complained that while the defendant was on trial and one of the witnesses presented by him was being cross-examined, the county attorney asked the witness if it was not a fact that the defendant was now under a suspended sentence in a liquor case in the Federal Court at Tyler. The court sustained the objection to this question but, according to the bill, refused to instruct the jury not to consider the question asked. The bill further relates that the county attorney argued to the court in the presence of the jury in favor of his question, stating to the court that he had a right to show by such witness that the defendant’s real and true occupation was not that of a farmer but that his real occupation was that of a bootlegger and that he was a bootlegger. Upon such statement being made the court was requested by proper motion to declare a mistrial, which he refused .to do, and to this ruling the defendant duly excepted. The appellant did not testify in his own behalf, and there is no evidence in the case that he was a bootlegger or that he had ever made a sale of liquor. The evidence discloses that some liquor was found hidden in the woods near his home; that there was a well-beaten path from his place of residence to the spot where the liquor was found; and that there was also mash in a hog trough, indicating that appellant had been making liquor. The evidence is sufficient to sustain the conclusion that the three gallons of liquor found belonged to or was under the control of the appellant, but there is no evidence of the sale.

The bill complaining of this conduct was presented to the county judge and approved by him on November 23, 1939. It was filed with the county clerk on the same day. Four days later and on November 27, 1939, the court filed with the clerk a qualification to this bill which, if accepted by'the appellant, would become a part of the bill and would have the effect of showing that no error was committed. A copy of this qualification appears in the transcript with the original signature of the judge. The caption of the transcript shows that the term of court at which the appellant was tried began on the 5th day of June, 1939, and ended on the 2nd day of September, 1939. There is nothing in the record to indicate that any notice was given to the appellant’s attorney of the filing of the qualification to the bill or that he agreed to such qualification. The provisions of the statute relating to the qualification of bills of exception are frequently overlooked. If the bill presented is not acceptable to the trial judge, he may refuse to sign same and may prepare one of his own. If this is not acceptable to the attorney for the defendant, he may prepare and file a bystanders’ bill. However, when the court attaches his qualification to a bill and the attorney accepts that qualification, it is considered by this court that he has agreed to the same and the qualification will supersede any contrary statement in the bill. It has been held by this court in Bonner v. State, 129 Tex.Cr.R. 597, 90 S.W.2d 250, that whenever the court discovers material errors in bills approved by him, he may, upon fair notice during the term time, after hearing, correct such errors, giving the defendant full right to complain and to present his complaints upon appeal. In the case before us, no notice appears to have been given and under the circumstances herein related the court’s qualification did not become a part of the bill. We are therefore obligated to consider the bill as originally approved on November 23, 1939, and as so approved the bill reflects error requiring that the case be reversed. Upon another trial, if the evidence is the same, a charge on circumstantial evidence would appear to be proper under the facts of this particular case.

The judgment is reversed and the cause remanded.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    JARRELL v. STATE.
    No. 20721.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Rehearing Denied March 20, 1940.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 10 years.

The record shows that Buddy Jarrell and his wife, Lola, together with Buddy’s mother, resided on a farm near the Prairie Grove School House in Johnson County. Appellant and the deceased, Bill Roberson, lived in the same community. In the spring of 1938, Bill Roberson asked Buddy Jarrell to let him have a small tract of land lying in the corner of the Jarrell farm. Buddy Jarrell agreed to let him have the land provided that he, Roberson, would fence it off from the other land. Roberson agreed to do so and himself furnish the material. After Roberson had spent a few days in preparing the ground to be planted, he informed Jarrell that he was unable to procure the necessary wire, posts and staples to fence the land and requested Jarrell to pay him for his labor in plowing a part of said land. Jarrell declined to do so and a controversy arose between them which they agreed to submit to a board of arbitrators, composed of three men. Their decision should be final and each would abide thereby. The men selected as arbitrators met, heard each side, and decided that Buddy Jarrell did not owe Bill Robérson anything for his labor in plowing the land. It seems that Roberson was very much displeased with the decision and made rather serious threats, not only against Buddy Jarrell, but also against his wife Lola Jarrell. Buddy, Jarrell operated a small dairy and on every Tuesday and Friday morning, he and his wife would take the milk from their home over a certain road to the town of Burleson. This was well-known to Bill Roberson. On the morning of April 29, 1938, Bill Roberson secreted himself in a thicket near the road usually travelled by Buddy Jarrell in going to Burleson. When Buddy Jar-rell and his wife came along said road in a car, they observed an automobile grease gun lying in the road. They stopped their car, Buddy got out to pick it up, and when he did so Roberson shot him with a shotgun, killing him almost instantly and seriously injuring his wife, Lola Jarrell. Roberson then walked away in the direction of his home. He was later arrested, and charged with murder, but was released on bond. As soon as Roberson was released, Mrs. Lola Jarrell and her mother-in-law abandoned their home and went to live with the appellant, Sam Jarrell. On the 26th day of October, appellant and his brother went to Venus where Bill Roberson was working as a corn .sheller. When Roberson saw them approach, he sensed danger and immediately grabbed a fellow co-worker and held the man in front of him as a shield. The co-worker made a desperate effort to free himself and finally succeeded. Roberson then fled, at which time appellant fired on him with a shotgun. Roberson succeeded in getting to an automobile, behind which he sought protection. Appellant went back to his truck, procured a pistol, and shot Roberson several times, from the effects of which he died. Appellant testified to many serious threats made against him by the deceased. He further testified that his purpose in going to where the deceased was at work was to get an explanation of these threats; that when the deceased saw him coming up, he grabbed a co-worker, held him in front of himself and ran his hand in the bosom of his shirt, which caused appellant to believe that the deceased was going to draw a pistol. Whereupon he fired upon the deceased; that the deceased then ran to an automobile, extended or at least attempted to extend his hand through the front door of the car which caused him (appellant) to believe that the deceased was attempting to get a gun; that having emptied his gun, he returned to his track, took a pistol therefrom and shot the deceased and continued firing until the deceased fell.

Bill of exception number five shows that appellant offered to prove by Mrs. S. E. Jarrell certain serious threats alleged to have been made by the deceased against appellant, which were communicated to appellant some time prior to the homicide. The district attorney objected to the proof thereof, on the ground that the same were immaterial, inasmuch as the issue of self-defense had not been raised. The court sustained the objection, but advised appellant that in the event such issue was raised, at any later time in the trial, he would give him the opportunity to introduce said testimony. Appellant takes the position that this testimony was admissible in the. first instance under Art. 1257a, P.C., as showing the previous relationships between the parties and appellant’s state of mind, regardless of whether or not the issue of self-defense was raised. We do not deem it necessary to decide this issue, because, if it should be conceded that the proffered testimony was admissible in the first instance, ,and for the reasons stated by appellant, he still would have no just cause for complaint, because he failed to avail himself of the opportunity accorded him by the court to re-offer the evidence when the issue of self-defense was raised. Bills of exceptions Nos. 7 and 10 show that appellant offered similar testimony by two other witnesses, and the court made the same ruling thereon. Consequently, what we have said with reference to bill of exception number 5 applies with equal force to these bills, and they are overruled for the same reason. ' Moreover under the holding of this Court in the case of Mercer v. State, 111 Tex.Cr.R. 657, 13 S.W.2d 689, which relates to the question here presented, it is doubted if there is any merit in appellant’s contention.

Bills of exceptions 1, 4, 6 and 10 are qualified by the Court and as qualified fail to reveal reversible error.

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

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

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

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

The motion for rehearing is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. GRAVES, Judge.

text:
    Ex Parte GALLOGLY.
    No. 20974.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Rehearing Denied March 20, 1940.
    Leake, Henry & Young, of Dallas, and Martin, Moore & Brewster, of Fort Worth, for appellant.
    Ellis Arnall, Atty. Gen., and Herschel E. Smith, Asst. Atty. Gen., both of Atlanta, Ga., and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

It appears from the record before us that Richard G. Gallogly, the appellant, was, in the year 1929, charged with murder by two indictments returned by the Grand Jury of Fulton County, Georgia. He was tried and convicted and- his punishment in each instance assessed at confinement in the State Penitentiary for life. In the early part of October, 1939, he escaped from that State and came.to Dallas, Texas, where he surrendered to the sheriff, stating that he was a “life-termer” and had made his escape from the State Penitentiary of Georgia. On the 11th day of October, 1939, the Governor of Georgia, upon the application of the Solicitor General of said State, issued his requisition addressed to the Governor of this State, who in due time and form issued his executive warrant for appellant’s arrest, and directing that he be delivered to the agents of the State, of Georgia to be taken back to said State.

Appellant applied to the Hon. Grover Adams, Judge of the Criminal District Court of Dallas County, for a writ of habeas corpus. In said application he alleged that he was being illegally restrained of his liberty by the sheriff of Dallas County, and prayed that upon a hearing thereof he be ordered discharged. The court, after a full and complete hearing, remanded the appellant to the custody of the sheriff to be by him delivered to the designated agents of the State of Georgia. From this order, appellant has appealed to this court.

The only contention which appellant makes is that the requisition and the designation of the agents by the Governor of Georgia is not attested to by the Secretary of the State of Georgia, and that neither of them bear the Great Seal of said State. We do not have the original documents before us, but it appears from the record that all the documents were fastened together by a ribbon and the Great Seal of said State impressed thereon at the time they were presented to the Governor of this State. We think this is sufficient to meet the objections here raised. In our opinion it'was not necessary to impress the Great Seal of Georgia upon each document separately. The seal placed on the ribbon which .bound all the documents together related and attached to every document connected therewith. Appellant relies upon the case of Ex parte Pinkus, 114 Tex.Cr.R. 326, 25 S.W.2d 334, 338. We think that the instant case is distinguishable from that case upon the facts. In that case the agents appointed to -receive the relator were named in the requisition, but it did not bear the Great Seal of the State of New York. In that case, this court held that since the names of the designated agents appeared in the requisition only, it would be sufficient as a designation provided the instrument bore the Grea.t Seal of the State of New York. In the instant case, the names of the agent also appears in the requisition, but the requisition bears the Great Seal of the State of Georgia, and is signed by the Governor and properly attested by the Secretary of said ’ State. The requirements of the Pinkus case, supra, are fully met.

The judgment of the District Court Dallas County is affirmed. of

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant’s motion for a rehearing merely -reiterates matters called to our attention in the original submission herein, and which the original opinion, by Judge KRUEGER, has passed upon in its well-considered reasoning.

This motion again calls to our attention relator’s allegation that the designation by the Governor of Georgia of certain agents for the purpose of conveying relator back to his home state did not bear the impression of the Great Seal of the State of Georgia. This as well as all other matters called to our attention have been passed upon satisfactorily to this court in its original opinion, and the motion for a rehearing is therefore overruled.


text:
    GRAY v. STATE.
    No. 20703.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied March 20, 1940.
    Oscar Callaway, of Comanche, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is statutory rape. The punishment assessed is confinement in the state penitentiary for a term of 11 years.

Appellant’s first contention is that the evidence is insufficient to justify and sustain his • conviction. The questions of force, threats and want of consent do not enter into the case as an element of the offense, inasmuch as the indictment charged rape of a girl under eighteen years of age. Hence the only question is whether the proof shows that appellant had an act of sexual intercourse with her — i. e. if penetration was sufficiently established. The state relied entirely on her testimony to establish this element, and if her testimony was entitled to he believed by the jury, the offense would be established. The competency of the prosecutrix to testify was not questioned by appellant. It is his contention that her testimony is so unsatisfactory in every respect that she was not entitled to be believed. She was 13 years of age.

Prosecutrix testified that she met appellant on the square in the town of Comanche, and that he took her to his apartment and there had intercourse with her. Appellant took the stand and denied the act of intercourse, but admitted seeing her on the date in question and walking with her.

On cross-examination, prosecutrix testified as follows: “I can count to one hundred, and could count more, but just don’t want to. I do not know how to tell what time it is by the clock. * * * I have no knowledge of time at all * * *. That is as much as I know about time. When I was in the house * * * he went out the front door three times. He got the hamburger and brought it back and gave it to me, and went back and got a piece of pie while I was eating that * *. Then he got a cold drink. * * * No, I wouldn’t tell my daddy and mother where I went that night. Mr. Bedecker took me in the car and I told him. He just asked me and I told him. My mother and father asked me and I wouldn’t tell. I told my mother and father about it the next morning after the kids went to school.”

Dr. Gray testified that on Wednesday following the Sunday at which time the alleged rape occurred, he examined the prosecutrix and found some irritation of her privates. He further testified as follows: “It was larger than it should be. I recognized that something had been in •there many times before. I so stated to her mother. I found no internal soreness. The child is of a very low grade of mentality. I would say she had the mentality of a child of about five or six. I found that she just followed me in whatever suggestions I made. I wouldn’t think she could be relied on. I asked her a few questions and I noticed she didn’t know exactly what she was saying. Her understanding wasn’t as good as it should be at her age. -At thirteen she ought to be able to answer questions pretty quick and know what you are talking about. She is older in years than in mind. * * * I would not place her in the class of a lunatic, but in the class of feeble-minded or imbecile.” Her father testified that he considered the child as having nearly normal mentality; that from his observation of her at home he knew she could tell time and that she made fairly good grades in school. On direct examination the prosecutrix testified that she knew she was under oath and couldn’t tell anything but the truth; that sbe would break the law if she did not. She testified coherently as to the act, designated the place where it occurred and identified appellant as the man who penetrated her female organ. The examination by Dr. Gray revealed that she had been recently penetrated.

If her testimony is worthy of credit and could be believed by the jury, the evidence is sufficient to sustain appellant’s conviction. We do not believe that the evidence would justify our holding that her mental condition was such that her testimony was without probative force and not entitled to any credit. ' It is probably true that she was mentally subnormal; nevertheless she related many facts and circumstances which were found to be true, or which were admitted by appellant to be true. He admitted that he met her up town when looking at some painted chickens, and that later he was with her near the depot and from there went west with her. She said that he had a cot and some magazines in the room and that was true. She stated that appellant entered the shooting gallery at the front door and opened the back door from the inside to permit her to enter. It was shown that the back door could not be opened from the outside as the screen door was fastened from the inside of the building. Appellant admitted that he got a hamburger and a soda water on the evening in question at about the time related by the prosecutrix. She said that after the act her clothes were wet at the back, and in this she was corroborated by her mother, who subsequently examined the clothes. It is true that she at first declined to tell her mother where she had been and what she had done. In fact she told a lie about it, but testified that the reason she did not tell the truth was that she was afraid her mother would whip her. She seems to have had sufficient mental capacity to realize that she had done wrong and expected to be chastised for so doing. To avoid punishment, she told a lie. This was the most natural thing for a child to do. No charge of lunacy had been filed and no adjudication of her mental condition had been had; consequently the question of her credibility as a witness and the weight to be given to her testimony was one for the jury. Under the circumstances as shown by this record, we think the jury was justified in finding that her testimony was sufficiently reliable to establish penetration. See by analogy Nicholas v. State, 99 Tex.Cr.R. 504, 270 S.W. 555. The authorities relied on by appellant are either cases where force, threats and want of consent were issues, or where the prosecutrix on cross-examination repudiated her story as related on examination-in-chief. Neither line of authorities are applicable to the facts of this case. See McCormick & Ray, Tex.Law of Evidence, p. 421.

Bills of exceptions numbers two and three complain of certain remarks by the district attorney in his closing argument to the jury. We do not think the argument complained of, under the peculiar facts of this case, revealed error of a reversible nature. They seem to have been proper deductions from, and a comment upon testimony which showed an act of intercourse by a grown man upon a feeble-minded girl. See Tweedle v. State, 29 Tex.App. 586, 16 S.W. 544. Bill of exception number four is deficient in that it fails to show what answer, if any, the witness made to the question. Holder v. State, 113 Tex.Cr.R. 81, 18 S.W.2d 661, 4 Tex. Jurs. p. 323.

Bill number five complains of the testimony of prosecutrix’s father to the effect that on Tuesday following the Sunday of the alleged occurrence, the prosecutrix pointed appellant out as the person who had had sexual intercourse with her. We think this testimony was admissible. She did not know his name, but did know and recognize him by his physical appearance, and it was permissible for her father to testify that she was able to identify him some two days later.

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

No error of a reversible nature appearing, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant contends in his motion that the testimony of the thirteen year old girl is so meagre and unsatisfactory that same does not comport with human experience, and is too vague and indefinite to allow a verdict of the jury predicated thereon to stand.

It seems to be true that this girl was probably not fully mentally developed in keeping with her age, and did not seem to be as alert mentally as could be expected of one of her age. The story told by her was not given when she was first requested to tell what she had been doing during the time she was absent from her home on the afternoon and night of the alleged offense herein charged. But when her story was told, much of it was corroborated by others. She was seen in appellant’s company, he a married man, whose wife was absent, and she a weak-minded girl, and her testimony also found corroboration in the fact that others sold to appellant a hamburger and a coca cola, which appellant took away with him, contrary to his usual custom of consuming the same at the place purchased. -

The jury saw this little girl and heard her testimony; they seemed to have given credence thereto, and we see nothing so improbable therein that we would be justified in setting their verdict aside.

The motion is overruled.


text:
    ALLEN v. STATE.
    No. 20902.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    R. S. Ragsdale, of Burkburnett, and Sam B. Spence, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Wichita County with the offense of burglary and his punishment was assessed at confinement in the penitentiary for two- years.

The transcript in the present instance does not contain the proper notice of appeal. In addition to showing a docket entry, we find the following notation at the conclusion of the sentence: “To which the defendant excepted and gave notice of appeal.” Manifestly, this is not such a notice of appeal as complies with the statutory requirement. Art. 827, C.C.P. From the notice given, it does not appear whether the appeal was made to this court or to some other court. The notice of appeal must show that the appeal is taken to the Court of Criminal Appeals. See Tex.Jur., Vol. 4, p. 114, sec. 76; Hill v. State, 108 Tex.Cr.R. 335, 300 S.W. 70; Thweatt v. State, 110 Tex.Cr.R. 603, 9 S.W.2d 1042.

Deeming the notice of appeal found in the record insufficient to confer jurisdiction on this court to consider the appeal, it is therefore dismissed.


author: KRUEGER, Judge.

text:
    SMITH v. STATE.
    No. 20894.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for driving an automobile upon a public highway while intoxicated. The punishment assessed is a fine of $50 and confinement in the county jail for a period of 5 days.

The record is before us without a statement of facts or bills of exceptions. The indictment is sufficient to charge the offense and procedural matters appear to be in due order.

The judgment is affirmed.

PER CURIAM.

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


text:
    DUNCAN v. STATE.
    No. 20899.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Joe Hill, of Henderson, and Gray & Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of two years. This is the second appeal in this case; the opinion of this- Court on the former appeal may be found reported in 136 Tex.Cr.R. 18, 123 S.W.2d 344.

On the former trial, appellant entered a plea of guilty, but on this trial, he sought to justify his act in shooting Mr. Jones on the theory that Jones had insulted Mrs. Lucy Whitehead, appellant’s sister. The state’s contention was that appellant became incensed because Jones ordered him to leave his barber shop. Appellant and some friends were in the barber shop playing a marble machine. During the game appellant used some profane language. At the time, there was a lady in the shop getting a hair cut and Jones courteously requested appellant three or four times to desist from the use of such language, calling his attention to the presence of the lady in the barber shop. Appellant' failed to. heed ■ the request and Jones ordered him out of the shop. Appellant became angry, went away, procured a shotgun, came back in a car, parked it in the middlé of the street in front of the barber shop, and when Jones went out in front of his shop and leaned against the wall, the appellant, without any warning, shot him.

By bills of exceptions numbers one and two, appellant complains of the court’s action in declining to give his special requested instructions numbers one and two to the effect that (1) if the jury believed from the evidence that appellant’s sister, Mrs. Whitehead, told the appellant that Jones had insulted her by an indecent proposal, and that the defendant believed the report to be true, whether it was or not, then the defendant had a right to arm himself, seek Jones, and if, upon the first meeting, he shot him, he would be guilty of no greater offense than an aggravated assault. (2) That if the prosecuting witness, Jones, had made indecent proposals to defendant’s sister,. Mrs. Whitehead, such conduct would constitute adequate causé.

These requested charges are instructions that might have been proper at the time when' we had the manslaughter statute, but since its repeal, it is no longer proper for the court to instruct the jury as to particular acts constituting adequate cause. See Art. 1248, Secs. 1 — 4, Penal Code of 1925, which was repealed in 1927. We note that the court, in his charge, instructed the jury that they might consider all the facts and circumstances, as well as the previous relationships between the parties and the indecent conduct, if any, on the part of Jones toward appellant’s sister, in order to determine appellant’s state of mind and the punishment to be assessed. In our opinion, this instruction was all that he was entitled to under the present law and the facts of this case. See Art. 1257c, Vernon Ann. P.C.; Fuller v. State, 124 Tex.Cr.R. 321, 61 S.W.2d 825.

In our opinion, appellant was not entitled to a charge on aggravated assault, since the weapon used by him was a shotgun and there was no evidence introduced that the appellant did not intend to kill Jones when he shot him. The law presumes, under such circumstances, an intent to kill. To the contrary, appellant testified that he did intend to kill Jones'. Consequently such an issue was not raised. See McCoy v. State, 122 Tex.Cr.R. 298, 302, 54 S.W.2d 530; Scroggins v. State, 119 Tex.Cr.R. 32, 45 S.W.2d 983.

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

PER CURIAM.

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


text:
    CARLISLE v. STATE.
    No. 20898.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    R. G. Allen, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant was charged by indictment with forging a certificate of the County Clerk of Montgomery County to a purported deed of conveyance of real estate. The indictment contains several counts. Appellant was convicted under the first count which set forth the alleged forged certificate in haec verba with the exception that a circle was drawn with the word “Seal” therein, instead of actually impressing the alleged forged seal on the indictment. Appellant takes the position that the introduction of the certificate which carried the purported seal of the County Court of Montgomery County, was at variance with the allegations in the indictment, which showed the seal by a circle with the word “seal” written therein. We do not regard this as a variance. The state was not required to charge in the indictment more than that the certificate bore a seal and when it did so a sufficient predicate was laid for the .introduction of the seal actually used. It was not required to go into detail and particularly describe the seal, although the testimony offered in support of the allegation might have more particularly described the seal than the'indictment. This, of course, would not constitute a variance. We overrule his contention in this respect.

Appellant also complains because the court overruled his plea in the nature of a plea in abatement to the prosecution. He contends that the court should have sustained his plea and dismissed the prosecution, because the district attorney promised appellant immunity if he did testify for the state on the trial of a co-defendant. We do not believe the court committed any error in this respect, inasmuch as it docs not appear that the ¿¡strict attorney, with the approval of the court, agreed to dismiss the prosecution. The authorities in this state hold that the agreement of the trial judge to such a proceeding is necessary. See Turney v. State, 40 Tex.Cr.R. 561, 51 S.W. 243; Hardin v. State, 12 Tex.App. 186, 189; Camron v. State, 32 Tex.Cr.R. 180, 22 S.W. 682, 40 Am.St.Rep. 763; Bowden v. State, 1 Tex.App. 137, 144. However, in some instances the statutes give immunity when one defendant testifies against a co-defendant, without any agreement to that effect by the officers in authority.

Appellant’s next contention is that the court erred in permitting the state, over his objection, to offer in evidence the testimony given by him on the trial of a co-defendant, by which he incriminated himself and furnished evidence which is the basis of this prosecution. He contends that the district attorney and the sheriff prevailed upon him to testify against his co-defendant by a promise that if he did so and did not claim his constitutional right not to give testimony (which might incriminate himself) on the trial of his co-defendant, they would not use any of such testimony as evidence against him. That ⅛ pursuánce of said agreement he took the witness stand in behalf of the state against his co-defendant and gave testimony which also incriminated himself. When the evidence given by appellant on the trial of his co-defendant was sought to be used against him on his trial, he objected thereto. This objection was overruled and the state was ■permitted to offer it in evidence. Appellant then sought to introduce evidence concerning the agreement with the officers, but the court declined to permit him to offer such testimony. In our opinion the learned trial court fell into error. If the state, through its district attorney, entered into such an agreement as contended for by appellant, then the state, in justice and fairness, should respect such agreement. If a conviction cannot be obtained by abiding by the agreement, the state would not be in any worse position than if the defendant had stood on his constitutional rights and had declined to testify on the ground that he might incriminate himself. To permit the state to disregard any such agreement, if in fact it was made, would give it an advantage to the prejudice of the defendant.

This was not a promise of immunity which could be enforced by appellant unless it had been sanctioned by the trial court, but if true it was an agreement not to use testimony against him which he gave upon the trial of a co-defendant and which also incriminated himself. It might be that in some instances it would be tantamount to immunity because the state might not, without the use of his testimony, be able to make a complete case, but in many instances such testimony might be sufficient as independent evidence to sustain a conviction. We think that the court should have permitted appellant to introduce the proferred testimony relative to the agreement and if controverted by the state, then by appropriate instructions to have advised the jury that if they believed such an agreement was made between the state ‘ and the defendant, then to disregard the testimony reproduced by the state against the defendant on his trial. See Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660. While the claimed agreement if established was not legally sufficient upon which to base a claim for immunity, yet it was sufficient to bind the state not to use his testimony against him.

Appellant also complains because the court failed and refused to instruct the jury relative to the law on insanity at the time of trial, as well as at the time of the commission of the offense. The .testimony raising this issue is very meagre and appellant’s testimony, as appears from the record, was intelligently given. Consequently, the court may have concluded that the evidence was not sufficient to require an instruction on present insanity. However, upon another trial, if the evidence, although meagre, is sufficient to raise the issue, it should be submitted to the jury for their consideration.

For the error hereinabove discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    DRAPER v. STATE.
    No. 20904.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The offense is drunkenness in a public place; punishment, a fine of $10.

The record before us fails to disclose that notice of appeal was given and entered upon the minutes of the court below. In the absence of such a showing this court is without jurisdiction to determine the matters presented for review. Art. 827, C.C.P.

.The appeal is dismissed.


text:
    WHITE v. STATE.
    No. 20883.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    L. L. Bruhl and Wilburn Oatman, Jr., both of Llano, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Upon appellant’s plea of guilty to the offense of robbery with firearms, and the waiver of a trial by jury, the court assessed his penalty at five years confinement in the penitentiary.

The record before us contains neither a statement of facts nor bills of exception. The indictment seems to be in proper form. All matters of procedure appearing regular, the judgment will be affirmed.


author: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    LOWRY v. STATE.
    No. 20850.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Denied March 20, 1940.
    Earl Shelton, of Austin, for appellant!
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a sentence of fifteen years in the state penitentiary imposed by ' the District Court of Travis County on a charge of rape.

The record contains no statement of facts, and the consideration which this court may give to the appeal is limited to the contents of two bills of exception.

Bill of Exception No. 1 includes thirty objections made to the court’s charge and embraces several different subjects in a single bill. In approving this bill the court attaches the following qualification: “This Bill of Exceptions is approved with this qualification: that certain of the 'exceptions taken were met by the Court by corrections made in the Charge before the Charge was given. Reference is here made to the Charge as given and the same is incorporated for reference into this Bill of Exceptions, and this Bill is fully approved on all those exceptions not cured by the Court in its Charge, as reflected by the Charge actually given.”

The bill complains of more than one error, some of which, it is very apparent, are not subject to the exceptions made to them. The qualification of the court is to the effect that some of them had been cured. Just which ones is not pointed out. Without the qualification of the court or with it, the bill is defective and presents nothing which this court may consider under the rules, particularly without the statement of facts.

Bill of Exception No. 2 presents an exception to the argument of the prosecuting attorney in closing the case which, under some circumstances, would require a reversal of the case. The language is as follows: “Who was out there to tell it except she and the defendant? If she had submitted to him willingly, why should she have come here and submitted herself to this disgrace? There was no one but she and the defendant out there.”

It is further stated in the bill that the defendant had not testified or taken the stand to testify in this cause; and the bill further states facts showing that at the time and place referred to no one was present except the prosecutrix and the defendant himself, and that no other person could have testified to what occurred. To this bill the court attaches the following qualification :

“That attorney for defendant, Ray Holder, in his argument stated that the testimony of the prosecuting witness, Elsie Eckwall, showed that she had been reading True Story Magazine and True Confession Magazine and movie stories of young women who had gained publicity and that the case of the State’s witness was a perfect case of that type of woman. That hearing it showed that she had made up the story for the purpose of getting into publicity, counsel arguing at length along that line. The argument of the defense counsel was to the effect that the testimony of the prosecuting witness was simulated in order to gain notoriety and publicity. In his closing argument the district attorney made a statement in language substantially as follows, to-wit: ‘Now Mr. Ifolder is talking to you about this woman reading True Story and True Confession and true love stories and trying to get into the movies to make a publicity stunt out of that occurrence out there on the night of this trouble. She was not being helped any among her friends and family by telling what had occurred out there. It was most humiliating to her. You saw her and can see that she is a quiet and inoffensive woman. Why should she have gone among her friends and family and tell a lie about it? Who was out there to tell it except she and the defendant? If she had submitted willingly, why would she have come here and submitted to this disgrace? There was no one but she and the defendant out there.’

“The Court considered the remarks of the district attorney, and especially to the effect, ‘Who was out there to tell it except she and the defendant? If she had submitted willingly, why would she have come here and submitted to this disgrace? There was no one there but she and the defendant’, was in reply to the argument and position taken by the appellant’s counsel, and in the Trial Court’s opinion was not an argument or reference to the failure of the defendant to testify or deny the charge against him.”

Subject to the foregping qualification the court approved the bill. We recognize the difficulty in distinguishing this case from a number of decisions of this court on the subject, but we believe that a distinguishment should be made. Without discussing the authorities, which are numerous, it is generally held where any reference is made to the “failure” to have certain testimony in the case and the evidence discloses that the defendant alone could have given that testimony but he did not testify, it would be held to be an allusion to his failure to testify. It will be noted, however, from the foregoing bill, as qualified, that the attorney was not discussing the “failure” of any testimony but was discussing the testimony as it actually existed, which he was permitted to do. There was no reference to any lack of evidence on any subject. The evidence, according to the qualification of the court, shows that no one else was present except the two parties. The prosecuting attorney had a right to discuss the evidence as it actually existed and he made no allusion to the fact that the defendant could have changed it by his own testimony, nor is there such an inference; neither is there any criticism, actual or implied, because the defendant failed to produce the testimony. The attorney was merely discussing the case as it was presented in reply to the speculative argument of defendant’s counsel as to the motive of the prosecutrix in her testimony. We fail to find any allusion to the defendant’s failure to testify in this statement under the circumstances as presented by the court’s qualification of the bill, and by that we are bound.

There being no error presented in the record on appeal, the case is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

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

The motion for rehearing is overruled.

PER CURIAM.

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


author: PRICE, Chief Justice.

text:
    OUTLAW et al. v. GULF OIL CORPORATION et al.
    No. 3894.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 18, 1940.
    Rehearing Denied Feb. 23, 1940.

      Massingill, Belew, Hill & Paddock, and Ben. M. Terrell, all of Fort .Worth, for plaintiffs in error.
    Gerald C. Mann, Atty. Gen., Geo. W. Barcus, H. Grady Chandler, Robert E. Kepke, and James Noel, Asst. Attys. Gen., P. O. Settle, Wm. L.. Wise, W. E. Allen, and James & Connor, all of Fort Worth, Whitaker, Perkins & Turpin, of Midland, H. L. Stone, of Pittsburgh, Pa., John E. Green, Jr., of Houston, and W. H. Burges, of El Paso, for defendants in error.
   PRICE, Chief Justice.

We adopt as the statement of the nature and result of this suit that contained in the brief of plaintiffs in error. This was an action of trespass to try title brought by the Gulf Oil Corporation, Federal Royalties Company and Clarence Scharbauer against Rex C. Outlaw to recover title to and posr session of a small strip of land alleged to be out of and a part of Sections 21, 22, 27 and .28, Block 44, Township 1. South, T. & P. Railway Company Survey, Ector County, Texas.

In addition to a general demurrer and general denial defendant Rex ■ C. - Outlaw disclaimed any right, title or claim to the lands described in plaintiffs’ petition, save and except a rectangular .strip of land 31 ⅛ by 91 varas, containing Í0.6 acres and lying between and bounded by the patented sections 21, 22, 23 and 27, in said ’Block 44.

The State of Texas, acting for’ itself and in behalf of the Public Free School Fund, filed its intervention, alleging that it was the owner in fee simple of the lands described in the answer of the defendant Outlaw for the benefit of the Public Free School Fund of Texas, subject to State mineral lease No. 22243, executed to Rex C. Outlaw on August 13, 1937. Intervener sued for title to and possession of said land and for damages occasioned by the alleged unlawful acts of plaintiffs.

Plaintiffs filed their answer and cross action against said intervener, and defendant' Outlaw filed his answer to said plea of intervention, disclaiming therein any right, title or claim to the land described in said plea of intervention, save and éx-cept an undivided seven-eighths of all the oil, gas and sulphur and fifteen-sixteenths of all other minerals in and under said land.

At the conclusion of the evidence, on motion of the plaintiffs, the court instructed the jury to return a verdict in favor of plaintiffs against the defendant and in-tervener for title and possession of the land sued for. Judgment was rendered in accordance with the verdict and defendant and intervener have duly perfected a writ of error therefrom.

For convenience the parties will be designated as they were in the trial court. 'Plaintiffs in error being called defendant and intervener, respectively, and the defendants in error will be referred to as .plaintiffs.

There is in reality but one question involved in this appeal. This question is the proper construction of the patent issued by the State of Texas to Section 22, in Block 44, Township 1 South, T. & P. Railway Company Survey in Ector County. If a proper construction of this patent was that the south line of said Section 22 and the north line of Section 27, in the same block, are coincident, the action of the trial court in instructing a verdict was proper and should be affirmed.

A question of fact was involved in the construction of the patent; hence a discussion of the evidence is necessary. The land in controversy is within Block 44, Township 1 South, Ector County. This block was surveyed by virtue of Land Certificates issued to the Texas & Pacific Railroad under an Act of May 2, 1873, whereby twenty sections of land were donated for each mile of road completed. Under this Act the Company was required for each Certificate to survey two sections and return the map and field notes to the General Land Office. The Land Commissioner then was required to number such sections and issue 'patents to the Company for the odd numbered sections. The even numbered sections were reserved 'to the State for the benefit of the Public School Fund.

Under Certificates held by the Company, on or about March 7, 1876, D. L. Cunningham surveyed said Block 44 for the T. & P. and returned his field notes to the General Land Office. Block 44 as surveyed consisted of forty-eight sections. From east to west it purported to be six miles and from north to south eight miles. In making this survey Cunningham ran out and marked the exterior lines of the' block, but did not run the interior lines dividing the block into sections. The interior section lines were an office survey made by Cunningham.

March 26, 1906, patents issued to the T. & P. for the odd numbered sections in accordance with the field notes filed by Cunningham in his construction of such block by sections. Block 44, as divided into sections by this survey, showed all of the sections were tied to each other, and there were no vacancies shown between any of them. In the field notes returned by Cunningham those relating to Section 22 ■read as follows:

“Said survey is situated in Ector ' Co. ■on the Divide between the ■ waters of ■Colorado and Pecos River, about 16 miles .N. 68° W. from Odessa, and known, as Survey No. 22, Township 1 South, Block .No. 44.

“Beginning at a- stake and Earth md. 4 pits, the N.E. Corner of Survey No. 21,
. “Thence S. 13° E. 1900 vrs. St. & Earth md. 4 pits,
‘'Thence N. 77° E.1900 vrs. St. & Earth md. 4 pits,
“Thence N. 13d W. 1900 vrs. St. & Earth md. 4 pits,
■ “Thence S. 77° W. 1900 vrs. to the place of beginning.”

On January 26, 1904, J. C. Beaty made application to purchase said Section 22 at $1.50 per acre, tendered one-fortieth of the purchase price in cash, together with proper obligations for the deferred payments. His application was accepted and the land awarded to him on January 26, 1904. Thereafter, on February 8, 1909, he made due'proof of occupancy and sold and conveyed the Section to J. W. Buchanan, who, as part of the consideration, assumed payment of the balance due on the purchase money. Buchanan purchased a number of other sections in Block 44, among others, Section 27, which he owned on the date Section 22 was patented to Beaty for the benefit of Buchanan.

On September 20, 1912, Buchanan advised the ■ Land Commissioner he desired to make payment and patent Section 22 and other sections in Block 44. The Commissioner advised him that there was an excess in the sections and a resurvey and corrected field notes would be required. Buchanan employed J. R. Wadsworth to make this resurvey. In December, 1912, the corrected field notes as made by Wadsworth were filed with a map and same were passed by the Land Office as correct. ■ Section 22 was recognized by the Commissioner as correct for 652½ acres. Buchanan paid the required amount and patent was duly issued. The description in the patent was as follows:

“Six Hundred Fifty two and ½ (652-½) acres of land situated and described as follows: In Ector County, known as Sec. No. 22, Blk. 44, Tsp. IS, T. & P. Ry. Co. Cert. No. 4352, about 13 miles N.W. from Odessa. Said land having been purchased and fully paid for in accordance with an act approved April 19, 1901. Beginning at the N. E. cor. of Sur. No. 21, iron pipe 3" in S. B. line of Sur. No. 16 this Block.
“Thence N. 74° 40' E. at 37 vs. pass iron pipe 3" same being S. W. cor. Sur. No. 15 and S. E. Cor. Sur. No. 16, this Blk. 1938 vs. iron pipe 3" for N. E. Cor. this sur. and N. W. cor. Sur. No. 23 this Blk.
“Thence S. 15° 20' E. 1900 vs. along W. B. line said Sur. 23 to iron pipe for S. E. Cor. this Sur-, and N. E. Cor. Sur. No. 27 this Blk.
“Thence S. 74° 40' W. along N. Bdry. line said Sur. No. 27, 1901 vs. pass iron pipe 3" same being N. W. cor. of Sur. No. 27 and N. E. cor. Sur. No. 28, this Blk, 1938 vs. to iron pipe 3" for S. W. cor. this Sur. and S. E. cor. Sur. 21 this Blk. '
“Thence N. 15° 20' W. 1900 vs. along E. Bdry line of said No. 21 to the beginning.1’

The map accompanying the field notes o.f • Wadsworth showed all the sections comprising Block 44 as tied to each other and occupying the whole area Within the exterior lines of the block. Corrected field notes were filed by Wadsworth as to Sections 2-, 8, 18, 20, 22, 26, 28, 34, 38 and 46. The four corners of each section are described in the field notes as marked either by artificial monument, in the nature of an iron pipe, or by the adoption of an artificial monument, such as a mound of rock. Each of these monuments is described as likewise being the corner of an adjoining or related section. In the office survey of the sections made by Cunningham throughout the whole block the adjoining surveys bear this relationship to each other. Of course the interior corners of that survey are not marked by monuments.

The purpose of the Wadsworth survey was to determine the excess acreage contained in the ten sections above enumerated which Buchanan was seeking to patent and did pay for and patent. At the time the patent to Beaty to Section 22 was issued we have this situation: The map on file in the Land Office showed the southerly line of Section 22 to be the northerly line of Section 27, which was likewise owned by Buchanan; the field notes describing the Wadsworth survey described the south line of 22 as the north line of 27. It is fair, then, to assume that Wadsworth, in making the survey, intended that the south line of 22 should be the north line of 27; likewise, the Land Commissioner was under that impression and so was Buchanan. It was the intention of the Land Commissioner to convey the title of the State to Beaty for the benefit of Buchanan as same was established by the Cunningham survey, but requiring payment for the excess found therein. A more accurate statement, perhaps, would be to convey Section 22 as the law constructed same in view of the fact that in reality the exterior lines of the block contained more than forty-eight sections of 640 acres each. It will be observed in the Wadsworth field notes for Section 22 that from east to west it is 1938 varas and from north to south 1900 varas. Wadsworth took the excess out of the related odd numbered sections and put it in the related even numbered sections.

Surveyors Cunningham and Wadsworth died before this trial and hence the testimony of neither was available,

The construction of a description in a patent or deed is a legal question. Davis v. George, 104 Tex. 106, 134 S.W. 326.

It is not meant by the foregoing assertion to say that by construction alone of the field notes a boundary may be determined. Far.from it, the actual location of a boundary may depend on a question of fact. Hughes v. Sandal, 25 Tex. 162; Thomson v. Langdon, 87 Tex. 254, 28 S.W. 931; Wilson v. Giraud, 111 Tex. 253, 231 S.W. 1074.

It will be observed that the east boundary line of 22 commences at the northwest corner of Section 23, marked by a three inch pipe, runs south 15° 20' E. 1900 varas along the west boundary line of Section 23 to iron pipe for southeast corner of 22 and northeast corner of 27. It is asserted by the intervener and defendant that this pipe marking the southeast corner of 22 exists today where it was placed by Wadsworth for the southeast corner of 22; that the pipe as placed by Wadsworth is about 100 feet north of the northeast corner of section 27; that a line run, as called for in the notes, would not run along the north boundary line of 27, but the south boundary line of 22 would be 90. or more feet from the north boundary line of 27.

There is no serious disagreement between the expert witnesses of plaintiffs and those of intervener in respect to the exterior boundary lines of Block 44. Both of these witnesses substantially agree as to the monuments found by them called for by Cunningham as demarking the exterior lines of the block. The north line of the block is a well-established line, being the median line of what is known as the T. & P. reservation. The witnesses are likewise in substantial accord in saying that if 22 be established in accordance with the Cunningham field notes prorating the excess, that there would be no vacancy lying south of 22 and north of 27, and the north boundary of 27 would be the south boundary of 22. The divergence between Surveyor Williams, on behalf of the inter-vener, and Surveyor Dwyer, on behalf of the plaintiffs, is as to this iron pipe. Williams accepts same as an artificial, monument intended by Wadsworth to mark the southeast corner of 22; Dwyer refuses to accept same as marking the southeast corner of 22.

A copy of Wadsworth’s map as returned to the General Land Office may perhaps aid in clarifying this opinion, and same is here inserted:

Williams says that the pipe in question is a galvanized iron pipe 3½ inches in diameter. As stated before, Wadsworth’s survey of the interior lines of this section was not an office survey. He did purport to mark the corners of the various sections, and did call for an iron pipe at the southeast corner of 22 described as likewise being the northeast corner of Section 27. Witness Williams established the exterior lines of the block and endeavored to trace the footsteps of Wadsworth in his survey of 22. He testified to the location of other iron pipes set, according to his theory, to mark other surveys in the block made by Wadsworth at or about the time 22 was surveyed. He bases his opinion on various other monuments he found which he says substantially correspond in character and location to those described in Wadsworth’s field notes. Williams testified that at 7612.2 varas from the northwest corner of Section 2, the said block, he found a 3½ inch galvanized pipe which he took to be the pipe called for by Wadsworth in his field notes as the southeast corner of Section 22, in Block 44; that he found what he designated as the Wadsworth pipe at the southeast corner of Section 22 to be 91½ feet north of the patented north line of Survey No. 27 in said block. Williams testified in substance that beginning with Section 2, following the field notes of Wadsworth as filed for said section, he found a galvanized iron pipe at the northeast corner of Section 2 and the northwest corner of Section 1, which he took to be the pipe as called for in Wadsworth’s field notes for Section 2; following the line run by Wadsworth and called for by him in his field notes, Williams testified that he found a 3 inch galvanized iron pipe 1903 varas south of the north boundary line of said block, and that it was within three varas of the distance called for by Wadsworth; he accepted and took the pipe to be that called for by Wadsworth as the southwest corner of Section 2. Further, at the southwest corner of Section 2 he found a galvanized iron pipe which was within a few varas of where Wadsworth said he placed an iron, pipe, and he accepted the pipe to be the one called for as the southeast corner of Section 2.

Proceeding south from the north boundary line of the block along the line which would be the projection of the west boundary line of Section 2, that at 7612.2 varas from the northwest corner of Section 2 he found a three and a half inch galvanized pipe which, in view of the field notes returned by Wadsworth for Section 22, he accepted and took as Wadsworth’s mark and the pipe called for by him as the southeast corner of Section 22. He said the pipe was 12.2 varas further south than Wadsworth called for it to be. Nevertheless he took it to be Wadsworth’s corner for the reason that in surveying Section 2 it had been ascertained that Wadsworth’s, corner was three varas further south than called for; that apparently Wadsworth-gained three varas in each mile. Witness, stated'that at the time Wadsworth was doing his work in Block 44 in 1912 all surveyors were using link chains, and that, would account for Wadsworth’s miles being three varas longer than the mile called, for.

Proceeding south along the same line,, witness said at 11,414 varas south of the northwest corner of Section 2 he found a three and a half inch galvanized iron pipe which he took to be the pipe called for by Wadsworth as the southeast corner of Section 34 in said block.

At 13,316 varas south from the north boundary line of said block and south of the northwest corner of Section 2 of said block, Williams testified that he found a three inch galvanized iron pipe which he took and accepted as the northeast corner of 46, according to Wadsworth’s field notes for said section.

Williams testified that in connection with the survey which he made of Wadsworth’s corrected field notes for said Section 26 he found p, three inch galvanized iron, pipe at a point which he took to be the northeast corner of Section 26 and the southwest, corner of 24 in said block; that he accepted and took this to be the pipe called for by Wadsworth. Proceeding west from this, point the distance called for in Wads-worth’s field notes he found a pipe which he accepted as the northwest corner of Section 26 and also the southeast corner of Section 22. Proceeding south from said pipe 1900.3 varas a fence running east and west was found, and proceeding east along-said fence 1900.6 varas from a straight line drawn south from the northwest corner of Section 2 he found a three inch galvanized iron pipe under said fence which he took and accepted to be the pipe called for by Wadsworth as the southeast corner of Section 26; the pipe was located 9,516-varas south from the north boundary line of said block. Wadsworth’s call for said pipe was 9,500 varas from said north line. Further, a straight line drawn between the pipe which he took to be the northeast corner of Section 26 and the northwest corner of Section 26 is parallel to the north boundary line of said Block 44 and at 38.8 varas north of the north line of survey 27, as such survey 27 was patented.

In surveying Section 38, Williams testified that at the northwest corner of Section 38 he found a three inch galvanized iron pipe 11,415.5 varas south of the north boundary line of Block 44 which he took to be the pipe called for by Wadsworth in the corrected field notes which he returned for Section 38 in said block. Wadsworth, he said, in fact called for this pipe to be an even six miles from the north boundary, hut that it was actually six miles and .fifteen varas. Further, a line projected west from this pipe and parallel with the north line of Block 44 would miss by only 1.5 varas the pipe which he found in the southeast corner of Section 34 and took to be the pipe called for by Wadsworth as the southeast corner of Section 34; that at 13,316 varas south from the north boundary line of said block he found a galvanized iron pipe which he took to be the southeast corner of Section 38, as called for by Wads-worth.

Williams testified that from the iron pipe he took to be the one placed by Wads-worth at the southeast corner of Section 22 and the one called for by Wadsworth in his field notes he could trace the footsteps of Wadsworth in his survey of 22, and that the iron pipe which he took to be the one called for by Wadsworth in his field notes for the southeast corner of Survey 22 was 91⅜ feet or 35.8 varas north of the Cunningham north line of Section 27.

A witness, Charlie Judkins, a chain carrier for Wadsworth in 1912, testified that in November, 1912, Wadsworth did some surveying in Block 44 for Buchanan; that Wadsworth began his work in surveying the various sections in Block 44 on the north side of Buchanan’s pasture; according to his recollection the corners of the various sections surveyed were marked by iron pipe which varied in size from three, three and a half to four inches.

William Alley, County Surveyor of Ector County, testified on behalf of the defendant that he ran a line from the north boundary line to the south boundary line of Block 44, beginning such line of survey at the northwest corner of Section 2; that in surveying the line he had before him the corrected field notes prepared by Wadsworth; in surveying this line he found a three inch pipe at 1903 varas south of the north boundary line of said block, which was only three varas further south from the north boundary line than Wadsworth called for in his field notes for Section 2 in said block; at 3805.8'varas south from the north boundary line of said block Allen found a three inch galvanized iron pipe in the approximate location called for by Wadsworth in his corrected field notes for Section 14; further, that at 7615.2 varas south of the north boundary line of said block he found a three and a half inch galvanized iron pipe which was in the approximate location of the southeast corner of Section 22 as called for by Wadsworth in his corrected field notes; at 9516.8 varas south of said boundary line of said block he found a fence running east and west at or near the south line of Section 26; 11,-419.6 south of the north boundary line of said block he found a three inch galvanized iron pipe in the approximate location called for by Wadsworth in his corrected field notes for Section 34; at 13,322.2 varas south of said boundary line he found a three inch galvanized iron pipe in the approximate location called for by Wadsworth.

The testimony of the expert witness for plaintiffs, Dwyer, is not set out for the reason that in passing upon the propriety of the trial court’s instruction of a verdict the testimony of the losing party must be accorded its full weight. In regard to the testimony of the witness Dwyer, however, suffice it to say, his opinion did not agree with that of Williams as to the pipe in question being the southeast comer of Section 22. He supported his deduction that the pipe in question was not such by measurements on the ground, as to monuments found on the ground.

The testimony of either Williams or Dwyer could, for the most part, have been accepted as representing facts. There were •reasonable deductions supporting the conclusions reached by either witness as to the matters they did not agree upon in their testimony.

In short, we think an issue of fact was raised by this testimony.

As has been stated, the problem here is the correct construction of the description contained in the patent of Section 22 to plaintiffs’ predecessor in title, Beaty. If the iron pipe referred to in the patent was the true northeast corner of 27, there would be no ambiguity here. The westerly call from that point would run along the north boundary line of Section 27 and there would be no vacancy. But, concededly, this iron pipe as located by Williams is not the northeast corner of Section 27. The call is from an iron pipe set for the southeast corner of 22 along the north boundary line of 27. Thus the ambiguity in applying the description to the ground. There is, con-cededly, if we accept the iron pipe as the southeast corner, inconsistency between the calls in the description.

A locative call controls over a descriptive call. We think the call for the pipe is a locative call. Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Oliver v. Mahoney, 61 Tex. 610; Polk v. Reinhard, Tex.Civ.App., 193 S.W. 687; Hays v. Clawson, Tex.Civ.App., 286 S.W. 857; Kyle v. Clinkscales, Tex.Civ.App., 22 S.W. 2d 729; Atlantic Oil Producing Co. v. Hughey, Tex.Civ.App., 107 S.W.2d 631.

A map is a picture of a survey; field notes a description thereof. The survey is the substance, and consists of the actual acts of the surveyor. If existing established monuments are on the ground evidencing these acts, such monuments control. Such established monuments control because same are the best evidence of what the surveyor actually did in making the survey. More, they are part at least of what the surveyor did. 9 Corpus' Juris, 210.

In the case of Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530, it is said: “In determining the location of land in such cases the courts seek to ascertain the true intention of the parties concerned in the survey. But the intention referred to is not that which exists only in the minds of the surveyor. It is defined as that which may ‘be gathered from the language of the grant’ or as ‘the intention apparent on the face of the grant’ (Hubert v. Bartlett’s Heirs, 9 Tex. [97] 104), or ‘the legal meaning of the language of the patent when considered in the light shed upon it by the acts constituting the survey’ (Robertson v. Mosson, 26 Tex. [248], 251 ; Robinson v. Doss, 53 Tex. [496] 507; Brown v. Bedinger, 72 Tex. 247, 10 S.W. 90; Richardson v. Powell, 83 Tex. [588], 591, 19 S.W. 262). When reference is made in the decisions to the intention of the surveyor, the purpose deduced from what he did in making the survey and description of the land is meant, and not one which has not found expression in his acts. Grants are issued by the state and accepted by the grantees upon the acts done by the surveyor in identifying and describing the lands, and the rights of both are to be determined by the legal effect of those acts, and not by intentions which cannot be deduced from a construction of the descriptions in the grants with the aid of the facts constituting the surveys upon which they are based.” In short, it is the expressed intention of the grant that is the material inquiry.

Insofar as the field notes govern an area conveyed, that inquiry is not what the surveyor intended to do, but, if it can be determined, what he actually did. Blackwell v. Coleman County, supra; Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009.

Eliminating the call for this iron pipe as the southeast corner of Section 22, there can be, under the evidence introduced, but little question that the -call would extend to the north line of Section 27. This would be true even though the distance call was insufficient to reach the north line of 27. This construction would fit in with the configuration of the related surveys. The problem, however, is at all times the same—to follow the footsteps of the surveyor. In solving this problem the best evidence available must be given the weight accorded by the most reliable rules for the construction of a grant. Maddox Bros. & Anderson v. Fenner, 79 Tex. 279, 15 S.W. 237.

In the brief of defendant and inter-vener the following proposition is asserted: “Where one accepts a patent based on corrected field notes, he and those claiming under him cannot thereafter maintain any claim to the land included in the original survey but which was excluded from the corrected survey and the patent.” As sustaining this proposition a long list of cases are cited, among which are Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771; Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767; Finberg v. Gilbert, 104 Tex. 539, 141 S.W. 82; Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 104 S.W.2d 3; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259; Humble Oil & Refining Co. v. State, Tex. Civ.App., 104 S.W.2d 174; Montgomery County v. Angier, 32 Tex.Civ.App. 451, 74 S.W. 957. In our opinion the cases cited establish the proposition. Plaintiffs take the position that the proposition is only established by these authorities to the extent that the grantee knew and acquiesced in the exclusion from his purchase of part of the area he sought under his original application. It is true, the situation is somewhat different in this case than in the above cited cases. In most at least the rejection •of the surveyor was at the time of the initiation of the attempted purchase. The Land Commissioner rejected the field notes on stated grounds, and new application was made eliminating the objections stated by the Commissioner. There was, it is true, a conscious relinquishment of the claim. Here, a corrected survey was demanded as a condition precedent to the end that the excess acreage might he determined. There the transactions were execu-tory in their nature. Here executed for the patent was the final consummation of the right of the applicant to the land purchased. The State tendered the patent as final performance. The purchaser accepted it as such.

The filing of the corrected field notes was tantamount to an application to purchase the excess acreage in Survey 22. The original description was amended for this purpose. It was, however, amended by the voluntary act of the patentee. The corrected field notes not only purported to determine the area, but purported to describe and mark its application to the ground. In our opinion, the patent as issued, merges and determines all prior rights held and claimed by the patentee. Anderson v. Robison, 111 Tex. 402, 229 S.W. 459, 238 S.W. 883; Buie v. Miller et al., Tex.Civ.App., 216 S.W. 630.

“The inquiry * * * is directed to the survey as made, and not as it should have been made.” Forbis v. Withers, 71 Tex. 302, 9 S.W. 154.

In order to determine the excess acreage ' contained in Section 22, the establishment of the exterior lines of the block was essential. These lines determined the correct area of 22, could have been determined by calculation. The survey by Wads-worth not only undertook to establish the exterior block lines, but to establish and mark the boundary lines of 22.

Plaintiffs contend that we should disregard the specific description contained in the patent and rely on the general description as the most reliable guide. It is true the area involved came into being .as a tract of Public School Land by virtue of the Cunningham Survey. From and after the filing and acceptance of the Cunningham Survey it was thereafter and how is known as Section 22. But the resurvey as made was for the definite purpose of establishing Section 22 on the ground. Plaintiffs are charged with notice of his survey. It was tendered as a measure of plaintiffs’ right. The Land. Commissioner accepted it as such.

What Judge Hickman said in Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801, 808, applies here: “This is not a suit to reform. The land granted by this patent is that included by the boundaries fixed according to the field notes, and not merely the acreage called for, and our sole inquiry is directed to the survey as made by the surveyor. Blackwell v. Coleman County, 94 Tex. 216, 59 S.W. 530; Forbis v. Withers, 71 Tex. 302, 9 S.W. 154; Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259; Blake v. Pure Oil Co. [128 Tex. 536], 100 S.W.2d 1009.” ■

We think that a general description is always controlled by an actual survey which has been marked on the . ground. This opinion is further confirmed by the fact that the purpose of the survey was to mark out the very limits of the land to be conveyed, and the patent is made with reference thereto.

As has been stated before, the real problem is to determine the footsteps of the surveyor. If this can be determined all other description yields thereto.

What we have heretofore said disposes in substance, according to our view, of the issue of estoppel. If the patent does not include the land at the date of defendant’s application, title thereto was vested in the State. At all times the patentee is charged with notice as to the area actually described in the patent. Plaintiffs’ predecessors accepted this patent in full and final consummation of their rights under their file. It is the exact ad-mensuration of their rights under the law. If a mistake was made it cannot be corrected in this proceeding.

To hold that the State ⅛ estopped to claim this land would be tantamount to extending the boundaries described in the patent by construction.

In our opinion the true location of the south boundary line of Section 22 as established and marked on the ground by surveyor Wadsworth was raised by the pleading and the evidence and should have been submitted to the jury.

There is a question as to the admissibility of evidence that should be discussed. The court sustained the objection of plaintiffs to a certain map or plat made by plaintiffs’ witnesses Dwyer and Zant while in the employ of plaintiff Gulf Oil Company. The map was made during the years 1930-1935. It came from the custody of said plaintiff. If this map or plat was consistent with defendant and intervener’s theory and inconsistent with that of plaintiffs’, we think same was admissible as an admission. A proper predicate is not shown in the statement to make it admissible as to the credibility of either Zant or Dwyer. Nowhere is it shown in the statement that such map was called to the attention of either Zant or Dwyer. It was, however, a record made and kept by plaintiffs, and as such we think same was admissible. Its weight was another question.

Complaint is also made as to the trial court admitting in evidence the Land Office map of Ector. County dated June, 1901; also the map of 1890 of Ector County, and the T. & P. Railway map of 1876. The objection was that such maps were not relevant to prove boundary. We think the maps were admissible. 7 Tex.Jur. 229. These maps may not in and of themselves establish boundary. However, in connection with other testimony same are, in our opinion, relevant. Further, the execution and authenticity of the T. & P. map should be shown.

Reversed and remanded.

On Rehearing.

In the first paragraph of the motion for rehearing defendants in error suggest that there is no jurisdiction to pass upon this appeal. This contention has not been heretofore urged and is based upon an Act of the Forty-Sixth Legislature, known as Senate Bill No. 69, Vernon’s Ann.Civ.St. art. 1883a. It is deemed unnecessary to encumber this opinion by copying the provisions of that Act. Suffice it to say that by its terms it went into effect on the 1st day of January, 1940. Section 1 thereof provides: “No party who participates either in person or by his attorney in the actual trial of the case'in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.”

All parties to this appeal participated in the actual trial of the case in the District Court. Final judgment was rendered herein July 14, 1938. A notice of appeal was given, but same was not perfected. On January 4, 1939 petition for writ of error was filed and thereafter the record was perfected and filed in this Court March 17, 1939.

Article 5, Section 6, of the Constitution, Vernon’s Ann.St. provides: “Said Courts of Civil Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.”

Section 13, Article 1, of the Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

It appears from the Constitution that the right of appeal from a final judgment is a constitutional right. See Eppstein & Co. v. Holmes & Crain et al., 64 Tex., 560; Pendley v. Berry et al., 95 Tex. 72, 65 S.W. 32; Pratley v. Sherwin-Williams Co. of Texas, Tex.Com.App., 36 S.W.2d 195. This right of appeal cannot be denied by the Legislature, but may be regulated by laws prescribing the manner in which such appeals shall be prosecuted. Edwards v. Morton, 92 Tex. 152, 46 S.W. 792, 793.

Defendants in error seek to sustain their position as to lack of jurisdiction by the cases of Nordyke v. Wright, Tex.Civ.App., 298 S.W. 910, and Plummer et al. v. Van Arsdell, 117 Tex. 200, 299 S.W. 869.

To our mind there is a distinction between those cases and the case at bar. In those cases the right of appeal was conferred by Article 2249, R.S.1925, providing that one could appeal from an order granting a new trial. In 1927 that article was amended, Vernon’s Ann. Civ. St. art. 2249 and the provision giving the right of appeal from an order granting á motion for a new trial was repealed. The jurisdiction to pass upon a judgment granting a new trial was conferred by the Legislature and was taken away by the Legislature. In the cases last above referred to the right of appeal from a final judgment was not denied. It might have been presumed that, even though the judgment granting the new trial was improper, the same judgment would be entered on another trial. Expense, vexation and delay might be occasioned, but a right guaranteed by the Constitution would not be denied. No real, substantial ultimate right was denied by the repeal of that law.

Steps having been taken sufficient to perfect the constitutional right of. appeal prior to January 1, 1940, it is our opinion that that Act does not operate to divest the jurisdiction vested prior thereto. Globe Indemnity Co. v. Barnes, Tex.Civ.App., 280 S.W. 275; Walker et al. v. Lyles et al., Tex. Civ.App., 45 S.W.2d 315; Id., 124 Tex. 38, 72 S.W.2d 1113.

The motion to dismiss for lack of jurisdiction is overruled.

^ The equities of the defendants in error as tirged with great force and clarity in their motion for rehearing and on the original hearing appeal to us with great force. However, we are bound to follow the law as we believe it exists. When a patent is issued based on a survey, the actual footsteps of the surveyor are binding and must be followed. This is true despite the fact that it was the policy of the State at the time.to dispose of this land according to a plat and plan, the plan and plat being in accordance with the use for which the land was then conceived to be reasonably susceptible and to be in accordance with the best interest of the State and purchaser.

The estoppel urged against the State is the patent in question. This patent conveys the land in accordance with the Wads-worth survey. In order to establish this survey questions of fact must be determined, for such facts are not established by clear and uncontroverted evidence.

The motion for rehearing is overruled.