author: BEAUCHAMP, Judge.

text:
    REED v. STATE.
    No. 21217.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    C. O. McMillan, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a fine of $100 assessed by the county court of Erath County on complaint charging Johnie Reed with unlawfully transporting ten pints of intoxicating liquor.

The appeal is predicated principally on the insufficiency of the evidence. Ira Tackett, a deputy sheriff, together , with Ross Wright, Jess Brooks and Mr. Wilder, were together and saw Johnie Reed in a 1937 model V-8 tan colored car running very fast, going west. He declined to stop and Tackett took after him, following him for several miles. Appellant gained speed and got out of sight. Witness then says he saw appellant coming out from under a gate, but he jumped in his car and left before the witness reached him. Later witness and others returned to the gate and made a search in that vicinity, resulting in finding nine pints of whiskey and one pint ■of alcohol. These were thirty-seven steps from the gate in a field. They found boot tracks four or five feet apart leading from the gate to the whiskey and return. The size of these tracks were, “about size six ■or seven.”

On cross-examination the witness admitted that he did not see the appellant coming out from under the gate, but, “I stated I saw Johnie Reed coming from under a gate and telling what he was doing, he just raised up. When I saw him raise up he was about six or eight feet from the automobile; just a short distance from the automobile, that was really all I saw, just saw him raise up.”

The witness did not see the appellant with boots on that day and doesn’t know whether he was wearing them or not. He did not see the appellant with any of the whiskey in his possession, but merely found it in a field thirty-seven steps from the gate. According to a number of witnesses, this was a gate used frequently every day by people going in and out to a dairy.

Ray Parr testified that he saw a car stop at this particular point about half or three-fourths of a minute. He thought it was a car driven by Johnie Reed. He did not see- Reed get out of the car. He saw 'Tackett about thirty minués after that, The car which he saw was a light tan coupe. He was present when Tackett returned and saw him searching on both sides of the road. He said that the gate sets back eight or ten feet from the fence. On the east side, the direction of the approach, there was some high blue sage. He says further that you could not see the gate or the road 300 yards away from thé east.

John Wright, a deputy sheriff, testified ■that he saw the tracks leading to the whiskey; that they were made by boots and were three or four feet apart. The size of the boot was a six or seven. He never saw appellant in possession of the whiskey. On cross-examination he said he had known Johnie Reed all of his life and never saw him take steps like the ones leading to the whiskey; that he walks very fast, but takes short steps. He says that the gate sets back into a fence from the road and that a person 300 yards east could not see him raise up at the gate, but he would have to be something like four feet away. He says the brush on the fence row would obstruct the view at the gate.

Robert McDougal, another witness for the state, says that he met the appellant on the highway in front of the pursuing officer and that he was driving a white top Chevrolet, a blue car. He identifies the appellant as the driver. Both cars were traveling very fast and in the same direction headed west.

Vance Johnson, called by the state, testified that he knew Johnie Reed and' Ira Tackett. He saw Johnie Reed on the occasion in question and he was driving a yellow V^8, not a blue Chevrolet.

Robert McDougal, recalled by the state, said that he could not swear what color the car was. On cross-examination he further testified as follows:

“As to my saying this morning that it was a blue Chevrolet, well, uh * * *. No one has been talking to me since noon. No, Mr. Barham has not been talking to me. As to how come me to decide that I don’t remember about the color of the automobile * * * well * * * uh * * * er. * * * I did not talk to anyone. * * * No one has been talk7 ing to me.”

Appellant didn’t testify in his own behalf, but placed a witness on the stand, a shoe salesman, who swore that appellant wore-a number 9-D shoe.

The foregoing.'.constitutes a- fair statement of all the evidence connecting appellant with-the whiskey that was found, and is wholly insufficient to warrant a conviction. Flight is the only evidence of guilt, and ’flight alone is' insufficient.- It might indicate guilt or fear from any other cause, and,; yet, it might not be motivated by either. In no event could it be said to indicate the offense. Standing alone, it is insufficient to warrant a conviction. Murphey v. State, 109 Tex.Cr.R. 524, 5 S.W.2d 988; West v. State, 93 Tex.Cr.R. 370, 248 S.W. 371; Thompson v. State, 124 Tex.Cr.R. 661, 65 S.W.2d 299.

The case is distinguishable from Howle v. State, 122 Tex.Cr.R. 445, 55 S.W.2d 838, in that the whiskey in that case was found in Howie’s possession. Flight was shown as evidence of transportation. In the instant case we have no direct evidence that appellant had ever possessed the whiskey or had any connection with it. The fact that he stopped at a gate, and the state’s own evidence is conflicting on this, is no evidence of his connection with the whiskey in the position where it was found. Hád the tracks leading to and from the whiskey been identified as the tracks of appellant, we would have a different question. In the absence of testimony showing some connection between the whiskey found and the appellant, the evidence was insufficient upon which the jury may find him guilty.

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


source: Caselaw Access Project

author: HAWKINS, Presiding Judge.

license: Public Domain

text:
    DE LA CRUZ v. STATE.
    No. 21197.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Schlesinger, Schlesinger & Goodstein, of San Antonio, for appellant
    Lloyd W. . Davidson, State's Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted of aggravated assault and his punishment assessed at confinement in the county, jail for two years and a fine of one thousand dollars.

It is made known to the court by proper affidavit that since the jurisdiction of this court attached appellant has died.

For the reason stated the appeal is ordered dismissed.


author: KRUEGER, Judge. CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    SOLSONA v. STATE.
    No. 21159.
    Court of Criminal Appeals of Texas.
    June 19, 1940.
    On Appellant’s Rehearing Oct. 16, 1940.
    State’s Rehearing Denied Nov. 20, 1940.

      R. Osterveen and Joe Burkett, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is robbery by assault. The punishment assessed is confinement in the state penitentiary for a term of thirty years.

It appears from the record that on the night of July 2, 1939, the appellant and Salvador de la Cerda got into the automobile of Jesus Perez while parked on Santa Rosa Street in the city of San Antonio. Cerda got under the wheel and drove the car away while appellant and Perez occupied the rear seat. After they had gotten some distance, they struck Perez, threw him out of the car and drove away with it. They were pursued by the officers soon after the offense was committed. Cerda was apprehended that, night while they were in the act of taking the wheels off the car and the appellant was arrested sometime later.

Salvador de la Cerda testified that he knew Fred Solsona, the defendant; that he had known him about. twelve years; that he met Solsona about 11:30 or 12:00 o’clock on the night of July 2nd. He further testified as follows: “When we approached this car it was parked on Santa Rosa Street close to Beuna Vista Street. * * * I don’t know who was in the car when we came up to it. * * * When we started the car Fred said, 'Let’s go.’ Fred started the car and I drove it. * * * At that time I did not have any weapon with me, nor did Fred have anything that I saw. Fred got in on the right-hand side and told me to drive off and I did so; and then the fellow in the back began tangling with Fred. I mean they were fighting, and Fred told me to ke’ep on driving. Fred was cursing him and this other fellow was telling Fred to let him go, and then we drove up to somewhere and Jesus jumped off. * * * When he jumped off we took the car away from him. * * * When this fellow jumped out of the car we drove to the creek. * . * * Fred told me to help him strip the car. * * * While we were stripping the car the officers came up, and when they did so we ran. I ran towards the creek and had gone about fifty feet when I heard shooting and I surrendered. * * * I do not know where Fred was at that time, and did not see him until on the second day after this happened. This man, Fred Solsona, was the man I was with when this occurred.”

Jesus Perez, the owner of the car, testified that he knew the defendant and saw him on the 2nd day of July, 1939. It was about 1:30 A. M., when appellant stood beside Perez’s car on Santa Rosa Street. From- the testimony of Perez we quote: ■ “He came up -to me with a knife. * • * * This defendant was on the left side of the car, and the other fellow was on the right-hand side. * * * He told me to get out of the car, and I was going to get back in the car when they hit me in the back of the neck. I got in between the two seats and one of them jumped in and put a knife in my stomach and told me not to move. * * * At that time I was in the car, and they kept on beating me in the back and in the face. * * * Just one was beating me in the back of the car. The first cut I received was on the wrist, and I was also cut on the right side. * * * When we stopped I was scuffling with one of them. These two men took a quarter from me, and I also lost my car. * * * I do not know what they did with it but they found it with the tires off. * * * They left me unconscious on some street, but I don’t know the name of it. * * * I went to a house after I regained consciousness and telephoned for the law to come and pick me up. •* * * They brought me to the hospital and I stayed there from Sunday until Monday afternoon. * * * I did not give these two men, or either of them, nor anyone else permission to take this property.”

Officers testified to having received information of the alleged robbery. They drove down to the creek and saw two men stripping a car. When they threw the lights on them the men ran. The officers recognized appellant as one of the men who ran from the car. They pursued them and arrested Salvador de la Cerda, but the appellant got away. Appellant was arrested the next morning while asleep.

Appellant testified in his own behalf. He denied having seen Salvador de la Cerda on the night in question. He denied that he had robbed Jesus Perez of the car. He also denied having anything to do with the robbery.

The mother of the appellant testified that her son, Fred Solsona, came home about eight o’clock on the night in question and did not leave any more; that her son went to bed in the ba:ck yard about eight o’clock; that he did not go to bed with his clothes on.

The above constitutes in substance the entire testimony adduced upon the trial. We think the evidence is sufficient to justify the conclusion of the appellant’s guilt.

Appellant contends that his punishment is excessive. We are not prepared to say that it is. The punishment assessed is within the limits prescribed by law for the offense for which appellant was' convicted. If the State’s testimony is to be believed, it was rather an aggravated case. If the defendant’s testimony is to be believed, he should have been acquitted. However, the question of his guilt was submitted to the jury who are the exclusive judges of the facts proved, the credibility of the witnesses and the weight to be given to their testimony.

Appellant brings forward a bystanders’ bill of exception in which he complains of the alleged testimony given by Mr. Hig-don, a deputy constable, who testified: “When we drove over the little hill and our lights picked up the car that they were stripping down in the creek bed where all car strippers go to strip cars, one ran to the right and one ran to the left and the defendant here, Fred Solsona, is the one that ran to the right; I knew it was him from the way he ran; I knew it was him because I have arrested him numerous times for the same thing; he is nothing but a thief and a high-jacker.”

This bill of exception is entirely insufficient because part of the testimony was admissible, at least that part of it up to the point where the witness says, “I know it was him from the way he ran.” The other part of the testimony given by the witness, “I have arrested him numerous times for the same thing, he is nothing but a thief and a high-jacker”, would have been subject to an objection, but the rule has been well established in this state that where a person makes a blanket objection to the admission of the testimony, part of which is admissible and part of which is not, the .objection should be directed specifically to that part which is not admissible. In support of what we have said here, we refer to the cases hereinafter cited and also quote from Tex.Jur. Vol. 4, p. 305, sec. 212, as follows: “A bill of exception complaining of the admission of evidence must point out the particular evidence objected to. A bill containing a general objection to testimony, a part of which is admissible, is insufficient to manifest error if it does not single out the inadmissible portion of the testimony.”

See also Ferguson v. State, 133 Tex.Cr.R. 250, 110 S.W.2d 61; Stanfield v. State, 134 Tex.Cr.R. 197, 114 S.W.2d 545; White v. State, 113 Tex.Cr.R. 257, 20 S.W.2d 196; Leahy v. State, 111 Tex.Cr.R. 570, 13 S.W.2d 874.

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

PER CURIAM.

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

On Appellant’s Motion for Rehearing

CHRISTIAN, Judge.

In his motion for rehearing appellant insists that the objection set forth in his bystanders’ bill was sufficient to single out that part of the testimony of Mr. Higdon to the effect that he had arrested appellant on numerous occasions and that appellant was “nothing but a thief and a hijacker.” Our re-examination of the bystanders’ bill, in the light of the motion for rehearing, leads us to the conclusion that appellant is correct in his contention. According to the bill, the witness Higdon testified as follows: “When we drove over the little hill and our lights picked up the car that they were stripping down in the creek bed where all the car-strippers go to strip cars, one ran to the right and one to the left and the defendant here, Fred Solsona, is the one that ran to the right, I knew it was him from the way he ran, I knew it was him because I have arrested him numerous times for the same thing, he is nothing but a thief and a hijacker.” The bill recites that appellant objected to the testimony on the ground that it was “highly prejudicial to the defendant and invaded the province of the jury, and permitted the witness to testify as to his opinion that the defendant was a thief and a hijacker, and was calculated to and did prejudice the jury.” (Italics ours.)- It is also recited in the bill that the objection was overruled and that the appellant excepted.

The language which we have italicized in the objection appears to refer to the statement by the witness that he was of the opinion appellant was nothing but a thief and a hijacker. In our opinion, such language was sufficient to apprise the trial judge that it, was appellant’s position the witness should not be permitted to testify to the effect that appellant was a thief and a hijacker. That such statement was calculated to prejudice appellant is obvious. It was tantamount to saying that appellant was a criminal generally. It is the uniform holding of the court that an accused is to be tried upon the merits of the charge against him, and that proof of other crimes is not to be received unless such proof comes within one of the recognized exceptions. Enix v. State, 108 Tex.Cr.R. 106, 299 S.W. 430; Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428; Minor v. State, 109 Tex.Cr.R. 468, 5 S.W.2d 775. The statement in question was not admissible under any of the exceptions permitting proof of extraneous crimes. The penalty assessed against appellant was far in excess of the minimum. We are therefore constrained to. hold that the bystanders’ bill reflects reversible error.

The bill appears to be properly in the record and is not contested by controverting affidavits filed in the court below, as authorized by Subdivision 9, Article 2237, R.C.S.1925, which provides as follows: “Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as part of the record relating thereto.”

The decisions of this court are to the effect that the appellate court is “bound by a bystanders’ bill which complies with the statute and is not contested by controverting affidavits filed in the court below, as authorized by the statute.” 4 Texas Jurisprudence, page 288; Tadlock v. State, Tex.Cr.App., 139 S.W.2d 796. It follows that we are bound by the present bill.

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

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 State’s Motion for Rehearing.

BEAUCHAMP, Judge.

The State has filed a motion and presented an oral argument urging that the original opinion entered in this cause. affirming the judgment of the trial court should he sustained, and that the order of court granting the rehearing and reversing the case should be set aside.

We have again reviewed the questions raised, and believe that the discussion in the original opinion and in the opinion on the motion for rehearing fairly and sufficiently discuss the various questions raised, and properly dispose of them.

The State’s motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    JORDAN v. STATE.
    No. 21203.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Otto Mullinax, of Winnsboro, J. E. Brown, of Brady, (on appeal), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of three years.

Upon an inspection of the record, we find an .indefinite verdict and the court, in pronouncing sentence upon appellant, failed to make application of the Indeterminate Sentence Law, Vernon’s Ann.C.C.P. art. 775, due perhaps to the uncertainty of the jury’s verdict.

Appellant was charged with the offense of an assault to murder with malice. The court instructed the jury as to the law on an assault to murder with and without, malice, and also on the law of aggravated assault. The jury returned into court the following verdict:

“We the Jury find the defendant guilty and assess his penalty at three years in the penitentiary.
“A. H. Calvert, Foreman.”

Looking to the verdict as written, it is impossible to tell whether they found him guilty of assault with intent to murder with or without malice. The punishment prescribed by law for an assault with intent to murder with malice is by confinement in the penitentiary for a term of not less than two nor more than fifteen years, while the punishment for assault with intent to murder without malice is by confinement in the state penitentiary for not less than one nor more than three years.

The difficult question arising from such an indefinite verdict, in cases of this nature, is the application of the Indeterminate Sentence Law. Under the circumstances of this case and the provisions of the law mentioned above due to the imperfect verdict, the trial court was in no position to give effect to the Indeterminate Sentence Law, and neither is this court in a position to do so because we do piot know of what grade the jury convicted the accused. In the absence of a determination of that issue by the jury, this court will not be authorized to arbitrarily reform the sentence so as to comply with the Indeterminate Sentence Law. See Johnson v. State, 137 Tex.Cr.R. 82, 128 S.W.2d 384.

In view of the disppsition we are making of this case, we do not deem it necessary to discuss any of the other questions presented as they may not arise again upon another trial.

From what we have said, it follows that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    BARRON v. STATE.
    No. 21200.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Frank Sparks, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the theft of chickens, and by the jury fined the sum of $25.

Appellant pleaded guilty, and the issue presented to the jury by the court was the amount of punishment.

Bill of exceptions No. 1 complains of the circumstance that while the triq.1 of this cause was in progress a class of the public school of Cisco, Texas, came into the court room, evidently for the purpose of observing the procedure in the trial of criminal cases. During an interim in the trial, but in the presence of the jury, the trial court briefly addressed this class and explained to them the procedure relative to the trial of criminal cases, and the charge in this particular case in general terms.

We find naught in such a statement by the court of a harmful nature, nor anything calculated to influence the jury in any way to the detriment of the appellant, nor is anything in such remarks pointed out to us as calculated to influence the trial of this case to the detriment of appellant’s rights. However, we note that immediately upon appellant’s attorney objecting to such remarks, the court did turn to the jury and instruct them to pay no attention to any remarks so made by him to such public school class. Under appellant’s plea of guilty, we do not think a $25 fine evidenced any improper influences as exercised upon this jury.

Appellant’s bill of exceptions No. 2 is based on his objections to the introduction of a written confession signed by appellant, the main objection seeming to be because the warning incorporated therein ijmkes the statement that: “I, T. J. Barron, having been placed under arrest on a charge of theft of chickens do hereby make the following voluntary statement,” etc., whereas in truth and in fact no complaint had been filed at such time against appellant for the theft of said chickens, and therefore appellant’s attorney alleges that appellant was misled into making such statement. While the testimony does show that appellant did not at such time have a complaint filed against him charging the theft of such chickens, he was under arrest at such time on account of such theft, and the preliminary statement in such statement was true, and the truth could certainly not mislead him to his hurt, and especially in view of the light penalty assessed him upon a plea of guilty.

We see no error presented, and the judgment is affirmed. .


text:
    GROUNDS v. STATE.
    No. 21193.
    Court of Criminal Appeals of Texas.

      Oct. 30, 1940.

    A. W. Hodde, of Brenham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of burglary, upon a plea of guilty, and was by the jury assessed a penalty of two years in the penitentiary.

There are no bills of exception in the. record, and the only complaint we find therein is relative to the sufficiency of the testimony to show appellant’s guilt beyond a reasonable doubt. This proposition might have given us concern were it not for the fact that after having received a proper warning, the appellant “persisted in pleading guilty.”

The trial court was not vitally concerned' with the quantum of proof herein; the main proposition presented to it was, not to determine appellant’s guilt, — he had confessed that in open court, — but such testimony was only for the purpose of enabling the jury to determine the amount of punishment, and the matter relative to a suspension of sentence, which was asked for herein.

We quote from the case of Anderson v. State, 118 Tex.Cr.R. 194, 42 S.W.2d 1012: “Under the statute (articles 501, 502, C.C. P.) governing the entry of a plea of guilty, the entry of the plea, after due admoñ-ition, is conclusive of guilt, unless the evidence introduced upon the trial makes manifest' the innocence of the accused. Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975. Upon a plea of 'guilty, the hearing is, not to determine the guilt of the accused, but to enable the jury to assess the punishment. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279; Bennett v. State, 98 Tex.Cr.R. 661, 267 S.W.987.”

Also see Bunch v. State, 123 Tex.Cr.R. 546, 59 S.W.2d 394.

The judgment is affirmed.


text:
    KELLEY v. STATE.
    No. 21206.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    Bowlen Bond, of Fairfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for ⅞ violation of the Local Option Law. The punishment assessed is a fine of $100.

The complaint and information appear regular. The record is before us without statement of facts or bills of exception, in the absence of which nothing has been presented justifying a reversal.

The judgment of the trial court is therefore 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:
    LANGHAM v. STATE.
    No. 21182.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Shead & Smith, of Longview, for . appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given seven years in the penitentiary on a charge of robbery.

, The record contains no bills of exception and the statement of facts was filed 91 days after notice of appeal was given. Furthermore, the statement of facts does not bear the approval of the trial judge. We are, therefore, unable to consider it. Tex.Jur. Vol. 4, page 420, and cases there cited; Floyd v. State, 133 Tex.Cr.R. 614, 113 S.W.2d 894; Page v. State, 135 Tex.Cr.R. 190, 117 S.W.2d 785; C.C.P. Art. 760, Sub. 5.

We find no error apparent in the record. The judgment of the trial court is affirmed.


author: CHRISTIAN, Judge.

text:
    THORNTON v. STATE.
    No. 21165.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.
    Wiley B. Thomas, of Groveton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

Vard Skains testified that on January 8, 1938, he owned seventy-five head of hogs, which ran on the open range; that on or about the -21st day of January, 1938, he missed twenty of his hogs; that, upon instituting a search, he found his hogs in Beaumont in the wholesale meat house of L. Ros-enthal. Mr. Rosenthal testified that appellant sold.him the hogs in question on the 21st of January, 1938. The state introduced in evidence a check given by Mr. Rosenthal to appellant at 'the time the purchase was made. The check appears to have been indorsed by appellant and cashed. Vernon Lister, a witness for the state, testified that, in talking to appellant relative to the theft of Mr. Skains’ hogs, appellant said: “Dutch, I told Jimmie Lee the night we loaded Vardie’s hogs that I had rather have my throat cut than do this kind of business.” Further, he testified that appellant made the following statement to him: “Vardie Skains, the man I got the hogs from, is dirty, dirty, dirty.” Appellant did not testify and introduced no witnesses.

We deem the evidence sufficient to sup-. port the judgment of conviction.

No bills of exception are brought forward.

Appellant filed some objections to the court’s charge, which do not appear to have been authenticated by the trial judge. Hence they are not subject to consideration.

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:
    LEADON et al. v. STATE.
    No. 21210.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    H. H. Wellborn, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The appellants were convicted of the theft of cattle, and their punishment assessed at two years’ confinement in the penitentiary each.

This cause comes before us without any statement of facts or bills of exception. The motion for a new trial contains many matters alleged to be errors committed by the trial court, which we are unable to correctly appraise on account of the absence of a statement of facts and bills of exceptions.

The indictment appears to be in proper form, and all proceedings herein seem to be regular, and we have no other alternative than to affirm the judgment, which is accordingly done.


text:
    DANIELS v. STATE.
    No. 21214.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft. Ori account of two previous convictions for felonies less than capital, which were set forth in the indictment, the penalty assessed was confinement in the penitentiary for life. See Article 63, P.C.

The state proved the two previous convictions. The proof showed that on or about September 16, 1939, someone stole an automobile belonging to Frank Penna. Shortly after the car had been taken it was found in appellant’s possession. The motor number had been filed off and the license numbers changed.

Appellant did not testify.

The evidence is deemed sufficient to support the conviction.

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:
    BROWN v. STATE.
    No. 21209.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    E. R. Wright and S. K. Long, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from a sentence of thirty-five years in the penitentiary for murder. The record is before us without a statement of facts and without bills of exception. We have examined the record and it appears to be regular.

The judgment of the trial court is affirmed.


text:
    POWELL v. STATE.
    No. 21204.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    W. T. Barber, of San Marcos, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $100.

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

The judgment is affirmed..

PER CURIAM.

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


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    FONSECA v. STATE.
    No. 21140.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Rehearing Denied Nov. 20, 1940.
    Carlisle & Henry, of Kaufman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given a two-year term in the penitentiary upon a jury verdict find-, ing him guilty of murder without malice. The appeal is predicated on the failure-of the court to grant the defendant a new trial because of newly discovered eviden.ce-

It is set out that John Galindo, who resided in an adjoining county, was present as a witness in the court but was not placed on the stand and did not testify. It is set out in the motion and denied by the state that the witness had told the prosecuting attorney about seeing a razor open on the ground at the scene of the homicide, but that, though he had talked with the defense attorney through an interpreter, he had not revealed this fact to the defendant and that it was unknown to them. It is not alleged and it is not shown that he was asked anything about it. In the state of the record we are unable to value this testimony as defensive matter. If it should be the theory of defendant that the deceased was attacking him with a razor, the evidence might become pertinent, but no other witness so testified. If that be the defense, then it was certainly incumbent upon appellant’s counsel in the exercise of due diligence to have asked this witness about it when they consulted him prior to or during the trial.

The evidence introduced in support of the motion for new trial does not appear in the record, and it is not possible for this court to say that the trial court abused its discretion in overruling the motion. There is nothing to show diligence on the part of appellant’s counsel and we find no cause for reversal of the case.

The case is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant bases his motion for a rehearing mainly upon the proposition of newly discovered testimony to the effect that he has discovered since the trial that one John Galindo would testify that there was seen near the body of the deceased after he had fallen, and was evidently dead, a white handled straight razor. It appears that this witness was subpoenaed by the defendant and had been talked to by appellant’s attorneys during the trial, and that he had made no mention of having seen such razor, and was not used by either party. We do find, however, what purports to be a copy of his testimony taken before a justice of the peace, which statement was attached to the State’s motion controverting the appellant’s motion for a new trial, in which we find the following: “Bias fell to the ground right near their car and his right arm was open and out behind him and his other hand was sort of down to his side. I didn’t see anything in his hands because his wife rushed out and fell there on top of him crying. I was'there when Mr. Tune came out there but didn’t see any knife.”

We think appellant failed to exercise any diligence to ascertain what the testimony of the witness would have been when they talked to him at the time of the trial. We also think that the trial court would have been justified in finding that such testimony was probably not true.

We think this case has been properly disposed of in our original opinion. The motion is overruled.


text:
    SMITH v. STATE.
    No. 21187.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1940.

      Crane & Gl'arner, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from Willacy County, where a fine of $25 was assessed for violation of a phase of the tick eradication law.

The appellant had purchased five head of cattle from Mr. Hamilton in Cameron County and moved them in a truck to his home in Willacy County. The place of origin of the shipment was a tick infested area and the destination. was within a “free” area. Under the law it is necessary for a party moving the cattle to secure a permit from an inspector of the Livestock Sanitary Commission of Texas or from an inspector from the Bureau of Animal Industry, U. S. Department of Agriculture, Vernon’s Ann.P.C. art. 1525c, § 21. Either permit would authorize the movement, but appellant moved the cattle without a permit from either.

It is stated by appellant that he had purchased the cattle a few days prior to the date alleged and that the seller told him that he would secure a permit to move them. He went for them at rather a late hour and, after loading the cattle, asked for the permit. It transpired the seller had not secured it. He took the cattle on with the intention of securing a permit later. On the way he called by a place where he thought he could secure a permit, but failed to find the inspector; consequently, he proceeded with the transportation of the cattle and unloaded them at his home. - A few days thereafter an inspector came and, upon ascertaining the facts, filed complaint. Appellant then told him he would take them back to Cameron County and secure a permit to return them, but this was not accepted as fulfillment of the law.

We find from the agreed statement of facts nothing which presents any issue, or anything material to the defense. Appellant seems to have the idea that he should have been permitted to prove that the inspectors had previously permitted people to move cattle and granted permits later. In keeping with this, also, he did prove that he had been in the cattle business all of his life and that he had moved a great many cattle from and to-other counties without a permit, securing-the same later. The acts and conduct, either of an individual in the past or of law enforcement officers, will not supersede-the requirements'of the law. What he had done in the past, or what the inspectors-had permitted somebody else to do, earn have no force -as against the acts of the legislature. This disposes of the greater portion of the contentions made on appeal.

Appellant further presents that he cannot be charged with a violation of the-law because Hamilton had promised to get a permit for him; that he had them loaded and that it was late and that he-was suffering from the flu when he learned that the permit had not been secured. It is admitted, however, that he learned this fact and that he did not have a permit when he began transporting the cattle-from the purchase place to Willacy County. He says that because he did not know that he didn’t have a permit that he was ignorant of the facts and is not shown to' have had any intention of violating the law. . To this we cannot agree. A great many cases are cited and discussed in appellant’s brief which lay down proper principles of law, but they can have no application in this case for the reason appellant was charged with moving the cattle without a permit and this it is admitted he did. He is not charged with negligence in getting a permit, but was convicted of a failure to get it. No circumstances were indicated and very likely could not be which-forced appellant to transport the cattle after he found he did not have a permit.. It appears that he was negligent in loading them without first having it; that the violation of the law began thereafter and' at the time when he knew he didn’t have it.

There is no question of “guilty knowledge,” or lack of it. It is not a case, as contended, “where the citizen simply did the best he could under the circumstances without intending in any way to violate a law”, because he was not compelled to take the cattle and did so with full knowledge that the law required him to have a permit. To say that the permit could be obtained later in satisfaction of the law is contradicting the plain language of the statute and- destroys .the purpose of the enactment. After the cattle had been moved, the damage was done and securing of a permit would be a foolish requirement. Such practice cannot be condoned by the courts as a substantial compliance with the law, but, to the contrary, should be condemned as an evasion which renders it purposeless.

Another ground upon which this court is asked to reverse the case is that set out in the motion for new trial and denominated newly discovered evidence. None of this comes within the rule. No diligence was shown upon the part of appellant in securing the evidence, and none of it, so far as we can tell, would have any value on any proper defensive issue.

Complaint is also made that the court permitted an inspector testifying to say in response to appellant’s question as to why he had not prosecuted appellant in Cameron County that he laid the facts before the county attorney of that county and that the county attorney had said that there was no case against Hamilton. We see no point in this evidence and it should not have been admitted. At the same time we are unable to agree that it was helpful to the state or harmful to appellant. It certainly did not prejudice the case, as the jury gave him the lowest fine it was authorized to assess.

Complaint is also made of the court’s charge in the case, much of which is taken up with a discourse on law not applicable to the case before the court, but it does appear that there is a paragraph fairly applying the law to the facts of the case. This being a misdemeanor, it was the duty of the appellant to submit special charges to the county court correcting the errors complained of. He did submit two charges, one asking that appellant be acquitted unless they found that the “defendant had guilty knowledge of a violation of the law or lack of ordinary care.”

Another requested charge was to the effect that if the jury should find that Hamilton agreed to get the permit to move the cattle and defendant relied upon such agreement, then he would not violate the law in moving such cattle. The discussion heretofore given eliminates further necessity for a consideration of these two charges and there is nothing in them attempting to correct any error which the court made in his main charge. We, therefore, have nothing presented for our consideration relative to it.

The principal question in this appeal and which has given the court some concern is that which complains of the manner of the charge laid in the complaint and information in the following language. After alleging the transportation of the cattle, the complaint says: “ * * * without a written permit or certificate of an inspector of the Livestock Sanitary Commission of Texas or of an inspector of the Bureau of Animal Industry, United States Department of Agriculture * * *

It is the contention that the use of the disjunctive conjunction “or” renders it fatally defective. The question was timely raised and decided by the trial court contrary to the defense.

We have come to the conclusion that the use of the conjunction “or” is the proper one. Securing a permit either from the State or Federal authorities, as alleged, would have satisfied the requirements of the law. It is not necessary to get both. The subject is properly treated in Branch’s Annotated Penal Code, page 258, Sec. 503, from which we quote the following: “The use of the word ‘or’ is proper where the doing of either thing would excuse the defendant, and where he is not required to do both. Byrd v. State [72 Tex.Cr.R. 242], 162 S.W. 360.”

The case of Byrd v. State, cited by Mr. Branch, contains a thorough discussion of the subject and many of the authorities thereon. It has frequently been referred to, followed in some and distinguished in other cases, so that it may be said to definitely and clearly state the rule that if the gist of the offense is the failure to do something which it was the defendant’s duty to do, the allegation should follow the statute and use the word “or” instead of “and”. The instant case gives a very clear illustration of the application. The law would have been satisfied had appellant secured a permit either from the state or the federal authorities. If the charge as laid had used the word “and”, it would have been incorrect in that it would have required him to have secured a permit from both. The effect of the allegation in the language stated is to charge that he did not have a permit either from the state or from federal authorities. This was in keeping with the law. Appellant’s exception was properly overruled.

The judgment of the trial court is affirmed.


text:
    GARDNER v. STATE.
    No. 21223.
    Court of Criminal Appeals of Texas.
    Nov. 6, 1940.
    J. F. Mangum, of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with cattle theft, and pleaded not guilty, and filed an application for a suspended sentence. After evidence was heard herein appellant withdrew his plea of not guilty, and was by the court allowed to plead guilty to the charge in the indictment, and the jury found him guilty, in response to the court’s charge, and assessed his penalty at confinement in the penitentiary for a term of two years,, refusing to suspend his sentence.

We are at a loss to see why the trial court allowed the appellant to withdraw his plea of not guilty after the testimony of the first witness was heard. Ed Tate, the first witness, the man whose cow was alleged to have been stolen by appellant, testified on cross-examination by the appellant’s attorney that appellant was of unsound mind. To the same effect was the testimony of Jesse Gardner, appellant’s father, and also the testimony of J. A. Harrison, the appellant’s employer, and also Ernie Bruton testified to the same substantial effect, that appellant was of unsound mind. At this point the court allowed appellant to withdraw his plea of not guilty and accepted a plea of guilty, whereupon Dr. Sam Barclay, a practicing physician and surgeon, was placed upon the stand by the State and testified that, according to his judgment, the appellant was of sound mind, but very timid and shy.

The trial court should not have allowed the withdrawal of the first plea of not guilty, but instead, under the circumstances, should have proceeded under the plea of not guilty and instructed the jury the law in regard to insanity. In fact it was the court’s duty to have entered a plea of not guilty in behalf of the appellant, — in the event appellant desired to plead guilty at any time during the trial, — when it developed in the course thereof that there was an issue as to appellant’s sanity before the jury.

In the Edwards case, Edwards v. State, 134 Tex.Cr.R. 153, 114 S.W.2d 572, that was the course pursued by the learned trial judge, and such a course found sanction in the opinions in the cases of Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538; Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180; Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679; Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975; Johnson v. State, 120 Tex.Cr.R. 368, 48 S.W.2d 274.

For the error in allowing the appellant to withdraw his plea of not guilty and plead guilty in the presence of testimony showing his insanity, this judgment is reversed and the cause remanded.


author: O’QUINN, Justice.

text:
    TAYLOR-FICHTER STEEL CONST. CO., Inc., v. CURTIS et al.
    No. 3609.
    Court of Civil Appeals of Texas. Beaumont.
    July 5, 1940.
    Rehearing Denied Sept. 25, 1940.
    Orgain, Carroll & Bell, of Beaumont,, and K. W. Stephenson, of Orange, for appellant.
    Chas. S. Pipkin, of Beaumont, and Alto V. Watson, II, of Port Arthur, for appel-lees.
   O’QUINN, Justice.

Appellant, Taylor-Fichter Steel Construction Company, Inc., was the principal contractor on the Neches River bridge on the Orange-Port Arthur highway. On the 16th day of August, 1937, appellant submitted the following offer in writing to appellees, Mark Curtis and S. G. Pam-philis, doing business as partners under the name of Associated Painting Contracting Company, to do, as sub-contractors, the work outlined herein and on the terms and conditions therein stated, for and under appellant as principal contractor, which offer appellees accepted:

“Associated Painting Contracting Co.
“P. O. Box 909
“Birmingham, Alabama.
“Dear Sirs:
“Subject to the approval of the State Highway Commission of the State of Texas and Jefferson County, Texas, and its Engineers, and of the P. W. A. of yourselves as sub-contractors, this letter will constitute an agreement between us for the field painting of the Neches River Bridge superstructure, P. W. A. Docket 8080-R.
“1: You are to furnish all materials (as outlined hereafter)., all tools and equipment, all rigging, all labor, all supervision, and all work and incidentals necessary to complete this field painting to the complete satisfaction of the State Highway Commission of the State of Texas and Jeffer--son County and the P. W. A. and their engineers and inspectors, all in accordance with specifications and contract for contract No. 2 superstructure.
“2: The touching up of field driven rivets is not included in your work nor is any cleaning occasioned by concrete operations nor scraping and cleaning of faulty shop coat. Where you are instructed by us to perform such work, you are to proceed with same and it is understood you will be paid for such work at actual cost plus 15%.
“3: Painting is to be performed by you in such manner and at such times and under such atmospheric conditions as specifically outlined in Article III of the Specifications to the satisfaction of the engineers and inspectors, and particular attention is directed to these requirements.
“4: All P. W. A. requirements and general conditions and special labor requirements, as contained in the specifica'tions and contract for contract #2 superstructure are to be considered as specifically written into this agreement and you are to comply with each and every one of them and they are to be an integral part of this agreement. Your attention is especially directed, although not limited to, pages 1 to 21 inclusive, 27 to 47 inclusive, 91 to 94 inclusive, 109 to 112 inclusive and 114 to 127 inclusive.
“5: We have arranged for the purchase of necessary paints and same will be delivered to you to the job ’site and you will be charged for these paints based upon the actual number of gallons of paint used by you at the following rates:
1st field coat at $2.25 per gallon
■2nd field coat at $2.00 per gallon
3rd field coat at $2.50 per gallon
“6: Workmen’s Compensation, public liability and property damage insurance are to be carried by you and certificates on prescribed forms are to be submitted.
“7: You are to furnish us without cost to us satisfactory completion bond.
“8: It is understood that you are to start this work at such times as field conditions permit and that you are to prosecute same as quickly as possible and in keeping with field conditions and so that your work will be completed within the time stipulated in the specifications or such extension of time as granted, by the engineers.
“9. Should any phase of your work be unsatisfactory, we reserve the right, upon issuance of ten days notice to you, to take over the completion of the entire field painting work in such manner as we see fit. Should this step become necessary, we shall have the right to take over and use for the completion of this work all rigging and tools which you have at the job site and no further payments will be made to you until the work is completed. Should the total cost under these circumstances be less than the amount of money owed you, the difference will be due you. Should, however, the total cost be in excess of the monies due you, you and your surety will be liable for this excess cost.
“10: It is understood that you will carry out this work with the use of labor which will in no way interfere with other labor being employed on this project by ourselves and other sub-contractors.
' "11: In consideration of the above, we agree to pay you the sum of Four and 45/100 ($4.45) Dollars per ton based on final tonnage of metal work as determined by the State Highway Engineers. Payments will be made monthly on or before the 15th day of each month for 90%. of work completed during the preceding month. Final payment of 10% retained will be paid within 30 days after you have completed this work.
“This agreement, as stated above, is made with the understanding that it is subject to the approval of yourselves as sub-contractors by both the State Highway Commission of the State of Texas and Jefferson County and the P. W. A. Your acceptance of this letter will constitute an agreement between us.
“Yours very truly,
“Taylor-Fichter Steel Construction Co. Inc.”

This suit was filed by appellees against appellant, praying for the cancellation of this contract, and for $1,308.62 as the reasonable value of the field painting done by appellees on the bridge under the first clause of the contract; and for $2,037.72 as the reasonable value of the work done and material furnished by appellees under the second clause'of the contract; and for $730.88 as the value of certain personal property belonging to appellees alleged to have been converted by appellant; and $5,000 as exemplary damages for the willful conversion of appellees’ property. For cause of action, appellees alleged that the value of the work done under section 2 was to be paid for on the 1st day of the succeeding month, or within a reasonable time, and that appellant breached this clause of the contract by not making the payments as per the contract; and that appellant failed and refused to make payments for the work done under the first clause of the contract, as therein stipulated, thereby breaching the contract, and that, on such breach by appellant, on the 20th day of April, 1938, appellees declared the contract at an end as of that date, and on that date so notified appellant in writing, and that they ceased working under’ the contract. It was further alleged that appellant, on receipt of such notice, took over and proceeded to use on the job appellees’ rigging and tools, used by them on the job, which appellees say constituted a conversion. Appellees sued for the balance claimed by them for the work done on the bridge, and. for the value of their property on the alleged conversion, and for exemplary damages predicated on the alleged conversion.

Appellant answered by .demurrers, general and special denial, and specially as follows: It was alleged that appellees were bound to furnish appellant written estimates of the amounts claim'ed by them before the bills for their work were due and payable; that appellees furnished with certain of their bills such written estimates, and that appellees were estopped to deny that it was their duty to furnish written estimates with their bills. It was further alleged that if the payments were not made within the time provided by the contract, such delay in the payments was the result of appellees’ conduct in failing to furnish the necessary estimates. It was further alleged that appellees waived the time of payment and their right to declare a forfeiture because payment was not made at the time stipulated in the contract, and that appellees were estopped to declare forfeiture because of the appellant’s failure, if it did so fail, to make the payments as per the terms of the contract.

On the conclusion of the evidence, ap-i pellant moved for an instructed verdict, which was refused.

Answering special issues, the jury found the following facts: Appellees had done field painting on the bridge in full compliance with section 1 of the contract; ap-pellees also did certain work under section 2 of the contract, in full compliance with the terms of the contract; the value of the work so done was assessed by the jury. It was further found that appellant had converted certain property belonging to ap-pellees which, after a remittitur, was of the value of $730.88; and, that appellees should recover $2,500 as exemplary damages for the willful conversion of the property. It appearing that appellant was entitled to certain credits as against the damages assessed by the jury, judgment was entered for appellees, after allowing such credits, against appellant in the sum of $5,760.07. The court also confirmed the cancellation of the contract by appellees as of the 20th of April, 1938, and decreed that the contract should be of no further effect from and after that date.

The jury made the following additional findings: Appellees did certain field painting on the bridge during the month of ■ February, 1938, for which appellant failed to pay appellees the 90% provided for in the contract on or before the 15th day of March, 1938; it also found that appellant failed to pay appellees on or before the 15th day of April, 1938, 90% of the field painting done by appellees during the month of March, 1938. Appellant failed to pay by the 1st day of March, 1938, for the work done during the month of February under the second clause of the contract, and also failed to pay for this work within a reasonable time; likewise appellant failed to pay by April 1, 1938, or within a reasonable time, for the work done on the bridge under the second clause of the contract. The jury also found that appel-lees performed certain work on the bridge under both the first and the second clauses of the contract during the month of April, and assessed the value of this work, and that appellant had not paid for this work.

Answering -special issues requested by appellant, the jury found the following facts: Appellees did not agree to present written bills covering work claimed to have been done by them as a prerequisite to payment ; nor did they agree to list and- allow credits on their written bills for amounts due by them to appellant up to the time of presenting their written bills. Appellees did not intend to waive strict compliance by appellant with the contract as to the time of payment. Appellant’s check dated April 11, 1938, for $3,455.10, payable to ap-pellees, was not delivered to Mr. Raptis on April 18, 1938, nor was it delivered to Mr. Raptis on April 19, 1938. Appellees used 187 gallons of the first field coat as supplied by appellant by April 20, 1938; they used 120 gallons of second field coat as supplied by appellant by April 20, 1938. -One-half of the cost of the paint house, constructed by appellant for appellees on the bridge site in December, 1937, was the ■sum of $97. Up to April 20, 1938, appel-lees used 79 gallons of gasoline supplied by appellant. Appellant paid $1.58 express charges for the account of appellees on purchases shipped to Port Arthur. The check delivered by appellant to appellees at Port Arthur in January, 1938, was not tendered in a reasonable time. The check delivered by appellant to appellees in February, 1938, was not tendered in a reasonable time. Appellant’s check of date April 11, 1938, in favor of appellees in the sum of $3,-455.10, was not tendered in reasonable time.

From the judgment against it, appellant has duly prosecuted its appeal to this court.

On the jury’s verdict, in effect, that appellant had breached its contract by failing and refusing to make the payment as per the terms of the contract, appellees had the legal right to declare the contract at an end, and to -cease working on the bridge, on the following proposition by 9 Am.Jur. 53: “The failure to pay an installment of the contract price as provided in a building or construction contract is a substantial breach of the contract, and gives the contractor the right to consider the contract at an end, to cease work, and to recover the value of the work already performed.”

See, also, 7 Tex.Jur. 608; Kidd-Scruggs Co. v. Tyler Hotel Co., Tex.Civ.App., 270 S.W. 566.

We pretermit a discussion of all assignments presenting defenses against the failure to pay for work done under section 2 of the contract. This was work to be assigned appellees only at the option of appellant, and that portion of the contract was at will. The failure to pay for such work on time gave appellees the right of rescission entirely independent of the right of rescission for failure- to pay for the painting under section 1 of the contract. So, if it should be conceded that appellees waived the time of payment as to work done under section 2 such waiver would not defeat their right to claim rescission for a failure to pay as per contract for work done under section 1. 10 Tex.Jur. 334; Read v. Gibson & Johnson, Tex.Civ.App., 12 S.W.2d 620. All payments made by appellant to appellees prior to April 1, 1938, were for work done under section 2 of the contract. We take the following statement from appellees’ brief on the issue of the time of payment for work done under the contract in question:

“The only payments made at all prior to the rescission of the contract by ap-pellees were made for extra work done theretofore. Though the fact that appellant made payments late for extra work would have justified and did justify appel-lees in rescinding the separate provision of such writing for performing extra work under the clear doctrine of the law as above set out, appellees would not have been justified in rescinding the principal contract for field painting if payments had been made on time for such field painting; and conversely it must stand that appel-lees could not be estopped from demanding payment for the principal contract work of field painting on due dates by any acceptance on their part of late payments for the performance of extra work.
“In order that the court may have before it in considering this particular point, I shall here set out the payments made prior to the rescission of the contract by appellees with respect to the different types of work performed as to dates: Extra work performed during the latter part of November and the month of December, paid January 26. Extra work performed during January, paid February 14. Extra work performed during February, check received April 22. Extra work performed during March, check received April 22. Extra work performed during April, recovery had in judgment in court below. A small amount of field painting work performed in January, no payment. Field painting work performed in February, no payment. Field painting work performed in March, no payment. Field painting work performed in April, no payment.
“In the check received by appellees on April 22, there was $416.00 included to apply on field painting work performed prior to April 1.
“These above performances and dates of payment and failures to make payment are undisputed in the record and it can be seen clearly from the record that appellant never made any payment to appellees for field painting work.”

The check received by appellees from appellant on the 22nd of April, 1938, dated April 11, 1938, in the sum of $3,455.-10, was for work done on the bridge prior to April 1, 1938, and included a payment of $416 for field painting under section 1, done prior to April 1, 1938, and this payment of $416 was the first and only payment made by appellant on the field painting. So, on our conclusion that section 1 and section 2 present the issue that the contract was not entire but severable, ap-pellees committed no act estopping them from declaring a rescission for failure to pay for, according to the terms of the contract, the work done under section 1. The fact that appellees indulged appellant in the delay in making payments due under section 1 did not work an estoppel against them to declare the forfeiture under section 1. 13 C.J. 616; 17 C.J.S., Contracts, § 432; Galveston, H. & S. A. Ry. Co. v. Johnson, 74 Tex. 256, 11 S.W. 1113. As stated above, appellees received a check from appellant on the 22nd day of April, 1938, for the sum of $3,455.10, to be applied by them as a credit for work done on the bridge prior to April 1st. This check was not received until after rescission had been declared, and the rights of the parties thus fixed by rescission. The fact that appellees subsequently cashed the check, giving appellant due credit, did not work an estoppel •against them to assert the rescission as declared on the 20th of April.

What we have said overrules all of appellant’s assignments that the court erred in refusing to instruct a verdict in its favor on the ground that appellees, on the undisputed evidence, as a matter of law, were estopped to declare the rescission on the contract on the 20th of April. For the same reason we overrule all assignments against the refusal of the court to submit certain special issues on the issue of estop-pel.

P. V. Pennybacker, one of appellees’ witnesses, testified that the work done by the appellees on the bridge, both under section 1 and section 2 of the contract, was approved, and was completed in accordance with the contract. Appellant complains that the court erred “in refusing the appellant the right, upon cross examination, to show by this witness that none of the work claimed to have been completed by the appellees was completed in compliance with the terms of the contract, but was so defective that it was finally rejected and the appellant was required to re-do the work, which testimony w.as admissible for impeachment purposes of the Engineer Pennybacker, who had charge of the inspection for the state and county and which testimony, if the court had permitted the same for the consideration of the jury, would have been relevant upon a material issue as to whether appellees had complied with the contract and should have been permitted for impeachment purposes of the witness 'Pennybacker upon a material and disputed relative issue of fact.”

Appellant also complains that the court erred “in refusing permission to the appellant to show by its engineer, Kapelsohn, who had charge of the work for the appellant in the construction of the bridge in question, that at least (75%) seventy-five per cent, of the work as done by the ap-pellees in the way of cleaning and scraping and painting was defective, was not in compliance with the provisions of the contract, and was so defective that the Engineer Pennybacker for the state and county, who had authority to act under the contract, finally rejected such work as done by the appellees and required the appellant to redo it at a cost to the appellant of at least seventy-five (75%) per cent.” On the following statement taken by us from appellees’ brief, these contentions are overruled:

“The cleaning, scraping and red-leading of the Neches River Bridge was by the provisions of the contract between the parties to this suit expressly excluded from the work of appellees as follows:
“ ‘The touching up of field driven rivets is not included in your work nor is any cleaning occasioned by concrete operations nor scraping and cleaning of faulty shop coat.’
“Such work was, therefore, the work of appellant, and appellees in doing such work did so under the actual direction and supervision of the officer of appellant in charge of the bridge, S. D. Kapelsohn, and in doing so were merely employees or servants of appellant, and appellees were not responsible for the way the work was done, they having no say about how such work was done and there being no specifications for them to live up to in doing such work, and if such work was not sufficiently done then the party at fault for such work not being done was appellant and not appel-lees, they being only servants of appellant, acting under its direction and supervision.
“And further, a considerable portion of this work was done by other servants and employees of appellant under its direction and supervision, and under the testimony of P. V. Pennybacker, in the bill of exceptions itself, any redoing of such work was caused by faulty cleaning, scraping and re-touching of shop coat operations only, which was the exclusive work of appellant, and any blame, fault or loss occasioned by any failure to properly do such work must be borne by appellant alone, and appellees are entitled to recover as they did recover judgment for the cost of work and labor expended, monies advanced, tools furnished, and supervision furnished for the doing of such work as the employees and servants of appellant.”

We give appellant’s 36th proposition:

“The undisputed evidence showing that appellees never applied any third field coat of paint and only a small amount of second field coat paint and paragraph 11 of the contract as to the making of any payment as to paint, providing:
“Tl. In consideration of the above, we agree to pay you the sum of Four and 45/100 ($4.45) Dollars per ton based on final tonnage of metal work as determined by the State Highway Engineers. Payments will Be made monthly on or before the 15th day of each month for 90% of work completed during the preceding month. Final payment of 10% retained will be paid within 30 days after you have completed this work.’
“None of the work as to the field painting had ever reached the point where it was an occasion for the making of a payment by the 15th of any month or on any other date, and it was therefore error for the trial court to refuse to give appellant’s requested charge No. 2 reading:
‘“Gentlemen of the Jury: You are instructed that you cannot allow the plaintiffs in this suit any recovery as to any sum of money for any of the field painting claimed to have been done by the plaintiffs.’ ”

This contention is denied. On appellant’s theory of the case, appellees were not entitled to payment for any work done until all the work had been completed; the first coat, a second coat, and third coat. The theory of the contract was that the work should be paid for in installments as the work progressed.

The court did not err in refusing to submit certain issues to the jury on the theory that the check for $3,455.10 was received in Port Arthur, but not delivered to appel-lees, on or prior to April 5, 1938. The failure of appellant to pay for the work done in January and February, under section 1, gave appellees the right to declare a rescission; this work was not paid for by the 15th of the month following its performance.

We overrule all assignments complaining of the manner of the submission of the issue of conversion of appellees’ property, and of the finding of the jury as to its value.

We sustain the assignment that the evidence is insufficient to support the finding of exemplary damages. Section 9 of the contract gave appellant the right, on the conditions therein, “to take over and use for the completion of this work all rigging and tools which you have at the job site.” While the facts sustain the finding of the jury on the issue of conversion, there was a bona fide dispute between appellant and appellees on many issues in the execution of the contract. Without bringing forward all these facts and circumstances, it is our conclusion from the record, as a whole, that appellant did not convert the property with “malice” and under circumstances sustaining the finding of exemplary damages.

The judgment of the lower court is in all respects affirmed except as to the issue of exemplary damages; on that issue the judgment is reversed and the cause remanded to.the lower court.

Affirmed in part, and in part reversed and remanded.


author: CODY, Justice.

text:
    YELLOW CAB CO. v. UNDERWOOD.
    No. 11007.
    Court of Civil Appeals of Texas. Galveston.
    July 11, 1940.
    Rehearing Denied Oct. 3, 1940.

      Wood, Morrow, Gresham & McCorquo-dale, M. S. McCorquodale, and Jno. C. Williams, all of Houston, for appellant.
    Vinson, Elkins, Weems & Francis and Frank G. Dyer, all of Houston, for appel-lee.
   CODY, Justice.

Appellee sued appellant for damages in the sum of some $40,000, alleged to have been sustained by him when a passenger in one of appellant’s taxicabs which collided with an ice truck at the intersection of Caroline Street and Polk Avenue in Houston, on March 7, 1937. The ice truck was driven by John Mellar.

The details of appellee’s pleadings are not relevant on this appeal. In addition to suing appellant, Yellow Cab Company, appel-lee also sued John Mellar, who was driving the ice truck with which the taxicab collided : he also sued one John A. Darby, doing business upder the trade name of Dixie Ice Company, on the theory that John Mellar was an employee of Darby; but as Darby was, at the conclusion of the trial, by a peremptory instruction of the court discharged from the case, and no objection is made to such discharge, it is unnecessary here to take further notice of him.

Appellant answered by a general demurrer ; a special exception, the details of which are not here relevant; a general denial; and by way of special answer admitted the ordinance, pled by appellee, relating to the green, amber and red signal traffic lights, which function at certain street intersections in the City of Houston; inclusive of the intersection of Caroline Street and Polk Avenue; appellant further pled that the collision was caused-by the negligence of John Mellar, the driver of the ice truck; appellant also pled that appellee was guilty of contributory negligence.

As John Mellar was exonerated by the judgment of the court, based upon the findings of the jury, and no objection is here urged against such action, his pleadings will not be given.

In answer to special issues, the jury found:

1. That immediately prior to the collision the operator of the Yellow cab was driving at a rate of speed in excess of 20 miles per hour.

2. That such driving was a proximate cause of the collision.

3. That immediately prior to the collision the operator of the Yellow cab was driving without keeping a proper lookout.

4. That such failure to keep a proper lookout was negligence, as that term was. defined.

5. That such negligence was a proximate-cause of the collision.

6. That John Mellar, the driver of the ice truck, was not driving in excess of 20-miles per hour at the time of the collision.

8. That John Mellar did not fail to keep a proper lookout.

13. That the driver of the .Yellow cab drove the cab into the intersection of Caroline Street and Polk Avenue while the traffic light facing him was showing red.

14. That the same was a proximate cause of the collision.

14A. That the operator of the truck, John Mellar, did not drive into the intersection against the red light.

16. Appellee did fail to warn the driver of the Yellow cab to drive slower.

17. But such failure was not negligence.

22. Appellee did fail to warn the driver of the Yellow cab that the traffic light was showing red.

23. But such failure was not negligence.

25. Appellee did fail to warn the driver of the Yellow cab that the ice truck was proceeding into the intersection.

26. Such failure was not negligence.

28. Immediately prior to the collision appellee did fail to warn the driver of the Yellow cab that the ice truck was proceeding at the rate of speed at which appellee believed said truck to be proceeding.

29. But such failure was not negligence.

31. That the act of the driver of the ice truck, immediately prior to the collision, in proceeding at the rate of speed at which he was then proceeding, with respect to the Yellow Cab Company, did not constitute a new and independent cause of the collision.

32. That the act of the driver of the ice truck immediately prior to the collision in question in proceeding into said intersection of Polk Avenue and Caroline Street at the time when he proceeded into said intersection, with respect to the defendant Yellow Cab Company, did not constitute a new and independent cause of the collision.

33. That the act of the truck driver in attempting to drive across the intersection in the manner in which he was driving the truck, with respect to the Yellow Cab Company, did not constitute a new and independent cause of the collision.

35. The red signal lights at the intersection were operating correctly.

38. The driver of the truck drove into .the intersection at a time when the green traffic light was facing him.

41. The collision was not the result of an unavoidable accident.

(The two remaining issues deal with the amount of damages.)

Appellee’s evidence showed that on January 23, preceding March 7, 1937 (the date of the collision in connection with which appellee brought this suit for dam'ages), he had been involved in another automobile collision, when he drove into a concrete pillar, and fractured his left knee cap, which caused him severe pain, and to be confined in a hospital, and required his leg to be kept in a cast until March 5th, two days before the collision which is the subject matter of this suit. And at the time of the collision, March 7, 1937, appellee had not yet returned to work, and was still on crutches. Qn the occasion in question ap-ipellee' was going out to dine with friends. ,He told the cab driver that he was a little nervous and would appreciate it if he would take it easy. The collision is, we believe, sufficiently described by the jury’s findings given above. As a result of the collision, ■appellee was thrown against the front of the back seat and due to his crippled knee he fell backward, striking the back of his head against the back of the seat. He became semi-conscious. The pain in his left leg, head and back was severe. He was taken -to the hospital, where he remained seven days; his leg swelled again for several \veeks. After leaving the hospital he was confined in bed at home for ten days or two weeks. Headaches continued while at home; the headaches left in July (1937). The pain in the back continued until some time in September (1937). And at the time of the trial (May, 1939), he did not suffer, ifrom pain in his back or from pain in his iknee. His hospital bill was $57.50. He was unable to work until the first-part of May. His salary was $184 per month. There was evidence as to his nervousness and insomnia. His doctor bill was $75.

Appellant’s first assignment is that the court erred in refusing to require the jury, ’in answering special issue No. 42, to award only such damages which, in the usual course of events' and general experience, were likely to ensue, and which, therefore, might reasonably have been foreseen and anticipated by the appellant (defendant) at the time the acts in question were committed by the appellant. Special issue No. 42 is, quoting it: “What sum of money, if any, if paid now in cash,- do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff, N. H. Underwood, for his injuries, if any, directly resulting from the collision in question, taking into consideration the following elements of damage and none other:

“(1) Physical pain suffered therefrom by N. H. Underwood, if any.
“(2) Mental Pain suffered therefrom by N. H. Underwood, if any.
“(3) The expense that N. H. Underwood has reasonably and necessarily incurred for hospital services as a direct result of the collision in question, if any.
“(4) The expense that N. H. Underwood has reasonably and necessarily incurred as a direct result of the collision in question, for doctors’ services, if any.”

The jury was not, as appellant complains, turned loose by the form of the issue as framed to assess damages and consider any and all injuries directly resulting from the collision, without regard to whether the damages claimed were such that in the usual course of events and general experience were likely to ensue, and which, when the act was committed, might reasonably have been foreseen and anticipated. But, on the other hand, the jury was limited to the elements of damage enumerated at the conclusion of special issue No. 42. And these enumerated elements of damage are such as are likely to ensue from a collision according to the usual course of events and general experience, and such as the driver of the Yellow cab was by law reasonably bound to have foreseen, and anticipated. In Hughes v. City of Austin, 12 Tex.Civ.App. 178, 33 S.W. 607, 609, it is said: “When an action is for a tort committed, the actual damages recoverable are such as will compensate the injury, and which arise as the necessary result of the act complained of, or. that, under the particular circumstances, may arise as the natural and probable consequences of the wrong committed, [authority] The theory of recovery of consequential damages that arise from torts is not based upon injuries and damages that are within the contemplation of the wrongdoer when the tort is committed, but recovery may be had for all damages which are the natural and proximate consequences of the wrongful act, and as to such consequences he is put upon contemplation of the results that are likely to follow from his conduct, although in fact he may have no actual knowledge that such consequences may result.” And see Humble Oil & Refining Co. v. Wood, Tex.Com.App., 292 S.W. 200; and 13 Tex.Jur. at page 98. It will be noted that the special issues first limited the jury to the assessment of damages, if any, to those “directly resulting from the collision in question”, and then further limited the assessment of damages to the enumerated elements. Had the hospital to which appellant had been taken burned down, and appellee suffered burns, and sought to recover damages for such burns as a direct result of the collision, some such limitation in connection with special issue No. 42 as appellant is contending for might not be out of place. But special issue No. 42 is not subject to complaint that it “wholly fails to include anywhere therein, and there is not included anywhere in the court’s charge with respect to damage, the element of foreseeability.” The first assignment of error is accordingly overruled.

The appellant’s second assignment of error makes the same complaint in connection with special issue No. 43, that the first assignment makes in connection with special issue No. 42. It is likewise overruled.

Appellant assigns error to the refusal of the court to declare a mistrial during the opening argument of appellee’s counsel, when, after having quoted special issue No. 31 to the jury and having read them the court’s definition of the term “new and independent cause”, he made the following argument:

“In other words, gentlemen, if you find— if you have answered — let us just take — if you have answered Special Issue No. 5, if you say ‘We do find the cab driver was not keeping a proper lookout’, and if you answer that that was negligent and that such negligence was a proximate cause of the collision, you cannot find that the speed of the truck was a new and independent cause of the collision. Now, why do I say that?"

At this point the court sustained the objection that the argument informed the jury as to the effect of their answer to the issue, whereupon, appellee’s counsel continued: “The court tells you in his definition of proximate cause that it must be a cause unbroken by any new and independent cause. In other words, if you find that the cab driver was guilty of any of these acts of negligence and that act was a proximate cause, by finding that you find that there was no new and independent cause.” And at this point appellant renewed its objections, and moved for a mistrial. The court sustained the objection but refused to declare a mistrial.

Now it is clear that the argument did inform the jury that if they answered that the cab driver was guilty of acts of negligence which proximately caused the collision, it would be inconsistent or conflicting to answer that the collision was the result of a new and independent cause. And that the jury shall not return conflicting answers into court is a result necessary to any trial, and one devoutly to be desired. Texas Emp. Ins. Ass’n v. Crosby, Tex.Civ.App., 123 S.W.2d 743, 745. In the authority just named, the court said that it was not prejudicial error for counsel to warn the jury against the pitfall of conflicting answers. “If the jury had fallen into it, the trial judge would have been obliged to reject their verdict, advise them of the conflict, direct them to retire and further consider their answers, and reconcile the conflicts.” See St. Louis, S. F. & T. Ry. Co. v. Kaylor, 291 S.W. 216, 218, where the Supreme Court said: “Trial courts should, in a preliminary way, read proposed answers being returned by juries to special issues. If a conflict is discovered by the court, he should state to the jury that the answers are conflicting and, in their present status, would not warrant an entry of any judgment in the case. With that information, the jury should be retired for further consideration of the issues and their answers thereto. But the court should not indicate to the jury, or permit counsel to do so, that it would be to the interest of one of the parties to have a certain issue answered in a certain way.” After all, in answering special issues, a jury is not put on trial by a medieval ordeal, or expected to play blind-man’s bluff, and see if they can by chance win their way to a receivable verdict. If it be the duty of the court to instruct them to the extent that they shall not return conflicting answers, we can see no objection to counsel pointing out what would constitute conflicting answers, under the court’s instructions, designed to prevent conflicting answers. At any rate, if counsel does no more, in arguing special issues to a jury, than to point out conflicts in answers which would prevent the court from receiving a verdict, they have not committed a reversible error. We do not think our holding here is necessarily in conflict with the holding of the Texarkana Court of Civil Appeals in Traders & General Ins. Co. v. Offield, 105 S.W.2d 359, for as we read that opinion the court regarded what was there being done in argument as tipping the jury off as to the effect of their answers, and giving them the cue as to how to answer such issues. If, however, the Texar-kana court meant to hold that it is reversible error for an attorney, in arguing the court’s instructions to the jury, which is designed and intended to elicit answers that are not in conflict, to merely indicate the nature of conflicting answers, without giving the cue how to answer in order to find for one side or the other, then we are compelled to follow the San Antonio Court. In any case, the court sustained the objection, but merely refused the motion for a mistrial. We overrule appellant’s ' third, fourth, and fifth assignments of error.

Appellant’s sixth assignment of error is that the damages awarded by the jury are excessive. The award certainly impresses us as being liberal, but we are unable to say they are excessive, that they require a reversal of the case.

We are unable to see the force of appellant’s seventh assignment, which complains of the definition of unavoidable accident given in connection with special issue No. 41, reading: “In this connection you are instructed that by the term 'unavoidable' accident’ is meant the unforeseen and unanticipated happening of ah event occurring without either the plaintiff, N. H. Underwood, or the driver of the truck, or the driver of the Yellow Cab, being guilty of negligence in doing or permitting to be done, or omitting doing anything, that proximately caused the collision.” If we understand appellant, he contends that, by authority of Dallas Ry. & Terminal Co. v. Price, 131 Tex. 319, 114 S.W.2d 859, it was error to include the mention of Mellar in the definition. If we understand appellant’s contention, the inclusion of the name of Mellar in the definition deprived appellant of the submission of an issue as to whether the accident was unavoidable as between itself and appellee, although the negligence of the truck driver may have caused the accident. Every possibility of negligence proximately causing the collision other than that of the driver of the taxicab was duly submitted. So we fail -to see how appellant could be damaged by the definition, the more so as we fail to find evidence of the accident being unavoidable. Certainly there is no evidence of it being unavoidable as between appellant and appellee. The seventh assignment is overruled.

In its eighth assignment of error appellant complains that the manner and form in which the court submitted special issue No. 2 amounted to a comment upon the weight of the evidence, in that it assumed that appellant’s cab was being driven at a rate of speed in excess of twenty miles per hour immediately prior to the cpllision. Special issues Nos. 1 and 2 are framed to go together. They read literally:

“Special Issue No. 1. Do you find from a preponderance of the evidence that immediately prior to said collision the operator of the Yellow Cab was driving same at a rate of speed in excess of 20 miles per hour?
“Answer ‘We do’ or ‘We do not’.”
“Special Issue No. 2. If you have answered the next preceding special issue ‘We do’, and only in that event, then answer:
“Do you find from a preponderance of the evidence that such driving of said cab was a proximate cause of the collision in question ?
“Answer ‘We do’ or ‘We do not’.”

Appellant contends that the court, instead of employing the form used in special issue No. 2, should have used this form: “If you have found that such cab was being driven at a rate of speed in excess of twenty miles per hour, and only in that event, then answer,” etc.

The assignment is overruled. The meaning of both forms are identical. Anyone capable of understanding, and following, and not being misled by the form advocated by appellant, would, it seems clear to' us, be equally capable of understanding, and following, and not being misled by the form used by the court. The form used by the court in special issue No. 2 makes no assumption as to how the jury should or would answer either special issue No. 2 or special issue No. 1.

The remaining assignments of error are but repetitions, with respect to other issues, of the same complaint as that urged in the foregoing assignment of error; and if we are correct in overruling the foregoing assignment, appellant’s remaining assignments are likewise without merit.

No reversible error having been commit:ted, the judgment of the court below ought to be affirmed, and it is so ordered.

Affirmed.


author: MURRAY, Justice.

text:
    RODRIGUEZ et al. v. SHACKLETT et al.
    No. 10757.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1940.
    Gus B. Mauermann, Albert C. Buss, and Augustus McCloslcey, all of San Antonio, for appellants.
    Terrell, Davis, Hall & Clemens, of San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted in the 73rd District Court of Bexar County on September 22, 1931, by McClellan Shacklett, as plaintiff, against Maria Chavez de Rodriguez, a feme sole, John C. Rodriguez and Mary Matthews, a feme sole, and also David J. Straus and R. O. Huff, trustee, as defendants, seeking to recover upon a promissory note payable to McClellan Shacklett in the sum of $18,000, together with interest, and signed by Maria Chavez de Rodriguez. The note had the following endorsement on the back thereof: “We hereby guarantee the payment of each installment of the within note, both principal and interest, as and when such installments become due.” Signed: John C. Rodriguez and Mary Matthews.

Payment of the note was secured by a deed of trust lien upon the following real estate:

First: Lots One (1), Two (2), Three (3), and Four (4), in Block Forty-Nine (49), New City Block Three Hundred Forty-Eight (348) out of a subdivision of Old Lot No. Thirty-Eight (38).

Second: Lots One (1), Two (2), Four (4) and Six (6) in Block Forty-Two, (42), New City Block Three Hundred Fifty-One (351), in what is known as the Francisco Xavier Rodriguez Suerte, excepting, however, the East 113.5 feet of Lot 6, in Block No. 42.

Foreclosure of this deed of trust lien upon said real estate was also sought by plaintiffs.

On December 16, 1931, McClellan Shack-lett departed this life and Ernest D. Shack-lett and Walter A. Shacklett, each individually and as independent executors of the last will of McClellan Shacklett, deceased, were substituted as parties plaintiff.

On June 22, 1935, plaintiffs filed their third amended petition in which they set up the fact that John C. Rodriguez and Mary Matthews had become guarantors of the payment of the note and a personal judgment was prayed for against them individually.

On February 20, 1936, Plaintiffs filed their fourth amended original petition, in which they set up the fact that Maria Chavez de Rodriguez died intestate, on or about the-day of-, 1935, and that there 'is now no administration of her estate and no need for administration; that John C. Rodriguez, Mary Matthews, R. C. Rodriguez, Rafaela Chavez, Aurelia Rodriguez Sens and husband, Benno Sens, Louis Garcia, Robert Garcia and Stella Garcia are the sole and only heirs at law of the said Maria Chavez de Rodriguez, to whom, upon the death of the said Maria Chavez de Rodriguez, the title to the above-described real estate descended, and prayed for a foreclosure of the lien as to the above-named heirs. ■

On March 21, 1939, plaintiffs filed their sixth amended original petition, in which they alleged, among other things, as follows : “Plaintiffs would now show that this suit was filed on September 22nd, 1931, the defendants therein having been Maria Chavez de Rodriguez, John C. Rodriguez and Mary Matthews, the latter then a feme sole, David J. Straus and R. O. Huff, Trustee; that Maria Chavez de Rodriguez died during the month of July, 1935; no administration of her estate having been taken out, the plaintiffs made parties hereto all the heirs of said Maria Chavez de Rodriguez, the same being the defendants, John C. Rodriguez, Mary Matthews Picnot, Ra-faela Chavez, Aurelia Rodriguez Sens, Louis Garcia, Robert Garcia, Stella Garcia, and Ramon C. Rodriguez; that during the month of February, 1939, the defendant Mary Picnot applied for letters of administration upon the estate of Maria Chavez de Rodriguez, and was, on March 7th, 1939, appointed such administratrix by the County Court of Bexar County, Texas, in Cause No. 27,489 on the docket of that court, and is now the duly qualified and acting admin-istratrix of said Estate.”

Plaintiffs, among other things, prayed for judgment against the estate of Maria Chavez de Rodriguez.

The case was submitted to the jury upon three special issues, all relating to the sanity or insanity of Maria Chavez de Rodriguez at the time she executed the note and deed of trust sued upon herein, and also at the time of the execution of other notes merged into the one in suit.

The jury answered that Maria Chavez de Rodriguez was not of unsound mind' at the time she executed these instruments. In keeping with this verdict judgment was rendered in the sum of $36,847.19, together with interest from April 24, 1939, at 9½ per cent per annum until paid, against John C. Rodriguez and Mary Matthews Picnot (formerly Mary Matthews), the latter individually and as administratrix of the estate of Maria Chavez de Rodriguez, deceased, and a foreclosure of the deed of trust lien on the hereinbefore described real estate as against all the defendants, including all the heirs of Maria Chavez de Rodriguez, deceased.

From this judgment Mary Matthews Pic-not, individually and as administratrix of the estate of Maria Chavez de Rodriguez, deceased, and John C. Rodriguez have prosecuted this appeal.

Appellants contend that there should have been no money judgment against the estate of Maria Chavez de Rodriguez, deceased, because such a claim was barred by the statute of limitation. Appel-lees do not challenge this contention. It is apparent that while this suit was first instituted against Maria Chavez de Rodriguez in 1931, when she died in 1935, her estate was not made a party to the suit, but, on the contrary, the estate was dismissed from the suit by the fourth amended original petition. An attempt was made in 1939 to bring the estate back into the suit and to secure a money judgment against it by the allegations of the sixth amended original petition. By this time the claim was more than eight years past due and barred by the statute of limitation. Art. 5527, R.C.S. 1925.

Appellants further contend that there should have been no money judgment against John C. Rodriguez and Mary Matthews Picnot, becattse they were only endorsers or guarantors of the note in suit and had been released by the holder of the note agreeing, to accept payment of the note in installments in a different amount than that provided for in the note, without the knowledge or consent of the guarantors. This contention likewise is not challenged by appellees and is sustained by us.

Appellant Mary Matthews Picnot, as administratrix of the estate of Maria Chavez de Rodriguez, deceased, next complains because the depositions of a number of witnesses taken at a time when the estate was not a party to the suit were admitted in evidence. The record shows that these depositions were admitted in evidence against the other defendants, but not against the estate. The trial court instructed the jury not to consider the depositions as evidence against the estate of Maria Chavez de Rodriguez, deceased. This was the proper procedure. Flores v. Hovel, Tex.Civ.App., 125 S.W. 606; St. Louis, A. & T. Ry. Co. v. Harris, 73 Tex. 375, 11 S. W. 405; Owens v Owens’ Estate, 84 Miss. 673, 37 So. 149; Meeks v. Clear Jack Mining Co., 141 Mo.App. 648, 124 S.W. 1084.

The judgment, insofar as it permits a recovery of a money judgment against Mary Matthews Picnot, individually and as ad-ministratrix of the estate of Maria Chavez de Rodriguez, deceased, and John C. Rodriguez, will be reformed and such recovery eliminated therefrom, and as thus reformed the judgment will be affirmed. The costs of this appeal will be taxed against ap-pellees.