text:
    BARA v. STATE.
    No. 21391.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of a billfold and $90 in money. The punishment assessed is confinement in the state penitentiary for a term of three years.

Appellant’s principal contention is that the evidence is insufficient to sustain his conviction because the testimony of Isabel Guillen is not sufficiently corroborated. The testimony, briefly stated, shows that on the 18th day of November, 1939, appellant operated a restaurant in the town of Brady, Texas. He had a young man and two women employed to assist him in his place of business. On the day in question, Joe Míreles sold some pecans to a produce company for the sum of $90. He placed his money in a brown billfold and put it in his pocket. During the day he engaged with some frie'nds in the social drinking of intoxicating liquor. Later in the day, he went to the appellant’s place of business where he consumed some more whisky and also danced with Isabel Guillen and Rosa Castillo, who were employees of the appellant. During the time that Míreles was at the restaurant appellant told Isabel that Míreles had a lot of money and that he wanted her to get it; that if she did not get it he would whip her as he had done a night or two before. Thereafter, Isabel, accompanied by Míreles, went from the restaurant to the adjoining room, where she reached into his pocket, took the billfold and placed it under her arm; that it slipped from under her arm and fell to the floor about the time that appellant came into the room. Seeing the billfold on the floor, appellant told Isabel to kick it over to him which she did; that appellant picked it up, put it in his pocket and went back into the restaurant.

Serapio Lopez, who was also one of appellant’s employees, saw the billfold on the floor. He saw Isabel kick it towards the appellant. He also saw appellant pick it up and put it in his pocket. When this happened the witness was standing in the doorway between the kitchen and the room mentioned. At the time of this occurrence, there were in said room Isabel, Rosa, Fuentes, Míreles and the appellant. Míre-les soon missed his money and searched Isabel, Rosa and Fuentes, but failed to find it. He then asked appellant for permission to search him but this request was refused. Míreles was then ordered by the appellant to leave the cafe or he would have him arrested for disturbing the peace.

Míreles testified that he had his billfold when he went into the room with Isabel; that he missed it while in that room; that he saw it on the floor but did not know who dropped it; that when the purse was on the floor the defendant was in the room with all of them.

Appellant took the witness stand and testified in his own behalf. He emphatically denied that he told Isabel that Míreles had a lot of money and for her to get it. He denied that he had received the money. He filed a plea for the suspension of the sentence in the event of his conviction which hq supported by some testimony.

It is our opinion that there is sufficient evidence to make appellant a principal to the commission of the offense, he being present at the time of the commission of the offense, took the loot and walked away with it.

Appellant next contends that the trial court erred in declining to sustain his motion to quash the indictment. We have examined the indictment and deem it sufficient to charge the offense. The indictment in the present instance is not like 'that in the case of White v. State, 83 Tex.Cr.R. 31, 201 S.W. 186, 187. It differs from that case in this: That it charges that on or about the 18th day of November, 1939, “and anterior to the presentment of this indictment, in the County and State aforesaid, Cresencio Bara, acting together with Isabel Guillen, did then and there unlawfully and fraudulently and privately take from the possession and the person of Joe Míreles one billfold and $90 in money, etc.”; while in the White case, supra, it is charged that White “did then and there unlawfully and fraudulently and privately take from the possession of the person of Scott Wilson one watch,” etc. It will be noted that in the White case, supra, the indictment merely charged the unlawful, fraudulent and private taking of a watch from the possession of the person of Will Scott, while in the instant case, it is charged that appellant took the property in question from the possession and from the person of Joe Míreles, etc. See also the following cases: Bush v. State, 53 Tex.Cr.R. 213, 109 S.W. 184; Chitwood v. State, 44 Tex.Cr.R. 439, 71 S.W. 973.

Appellant addressed several separate and distinct objections to the court’s main charge. We have carefully reviewed the charge in the light of the objections and reached the conclusion that they are without merit.

By Bill of Exception No. 1 appellant complains because Serapio Lopez was permitted to testify that Joe Míreles undertook to search the appellant after he missed his billfold and money but that appellant refused to be searched. The objection urged to this testimony was that it was but an opinion and conclusion of the witness. We are unable to agree with the appellant’s contention. It was but a shorthand rendition of a fact. Moreover, Isabel Guillen had, without objection, testified that after Joe Mireles missed his billfold and money, he searched her, Rosa and Fuentes and then went to search the appellant who would not submit to a search. (S.F. p. 13.) This court has held time and again that where testimony is adduced without objection which was substantially the same as that objected to no reversible error is shown; citing Clayton v. State, Tex.Cr.App., 138 S.W.2d 1084; Martinez v. State, Tex.Cr.App., 140 S.W.2d 187; Jennings v. State, Tex.Cr.App., 145 S.W.2d 196, and cases cited therein.

Bill of Exception No. 2 reflects the following occurrence: Appellant placed one, F. R. Wulff, on the witness stand, who testified that he had known the defendant for some ten or twelve years and was acquainted with his general reputation as a law-abiding citizen and that this reputation was good. He was then asked if he was acquainted with the general reputation of the defendant as to honesty, to which he replied, “No, sir.” He was also asked if he ever heard appellant’s reputation questioned, to which the District Attorney objected and the court sustained the objection. Appellant claims that if permitted, the witness would have answered, “No, sir.” We believe that this bill reflects reversible error. The witness should have been permitted to answer the question.

Bills of Exception Nos. 3 and 4 relate to the same alleged error and will be considered and disposed of together. Bill No. 3 shows that appellant asked the witness Wallace if he was acquainted with the appellant’s general reputation for honesty in the community in which he knew him.' Bill No. 4 shows that the witness, Love Kimbrough, was asked a similar question. Both of said witnesses answered in the affirmative. Then each of them was asked if that reputation was good or bad, whereupon the District Attorney objected to the question and answer because it was not an issue in the case; that the defendant was not a stranger in the county and that no predicate had been laid for any such question. The court sustained the objection and the appellant excepted. The bill further shows that each of said witnesses, if permitted, would have testified that the appellant’s reputation for honesty was good. We are of the opinion that the trial court fell into error in excluding this testimony. It is a well-recognized rule in Texas and in most jurisdictions that the accused, in order to exculpate himself, may introduce evidence of his general good character in respect to the particular trait involved in the offense charged. See Pine v. State, 134 Tex.Cr.R. 396, 115 S.W.2d 918; Cockrell v. State, 131 Tex.Cr.R. 3, 95 S.W.2d 408; Browder v. State, 30 Tex.App. 614, 18 S.W. 197. See also Wharton on Criminal Evidence, 10th Ed., Vol. 1, p. 230, § 67.

By several bills of exception appellant complains of certain remarks by the Dis-' trict Attorney in his closing argument to the jury, some of which should not have been made, as there was no basis therefor in the testimony. However, it is not likely that the same will be indulged in upon another trial. Hence we pretermit a discussion thereof.

For the errors herein pointed out, the judgment is reversed and the cause remanded.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    JOHNSON v. STATE.
    No. 21404.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    J. R. Bogard, of San Augustine, for appellant.
    Lloyd W. Davidsop, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of assault with intent to murder, and his punishment assessed at one year’s confinement in the penitentiary.

This cause comes before us without any statement of facts. We find in the record some objections and exceptions to the court’s charge before same was read to the jury, as well as some matters contained in the motion for a new trial alleged to be errors committed upon the trial of this cause, none of which we can correctly appraise on account of the absence of a statement of facts.

All matters of procedure appearing regular, the judgment will be affirmed.


author: HAWKINS, Presiding Judge.

text:
    DAVIS v. STATE.
    No. 21398.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    T. J. Wright and James E. Faulkner, both of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault with intent to murder with malice aforethought, and punishment was assessed at four years in the penitentiary.

The record is before this court without statement of facts or bills of exception. In such condition nothing of a procedural nature is before this court for review. It is obvious, however, that in pronouncing sentence the court failed to give effect to the indeterminate sentence law, Vernon’s Ann.C.C.P. art. 775, and the sentence is reformed condemning appellant to confinement in the penitentiary for not less than two years nor more than four years.

As reformed, the judgment is affirmed.


text:
    PARKER v. STATE.
    No. 21390.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Walter E. Gates, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for the possession of intoxicating liquor for the purpose of sale in dry area, punishment assessed being a fine of one hundred and fifty dollars.

The record contains no bills of exception. The facts have been reviewed and are sufficient to support the verdict.

The judgment is affirmed.


author: CPIRISTIAN, Judge.

text:
    BARRAGAN v. STATE.
    No. 21407.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    W. Joe Bryan, of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CPIRISTIAN, Judge.

The offense is selling' whisky on Sunday; the punishment, a fine of two hundred dollars.

The complaint and information embraced two counts, the first charging that on the 9th day of June, A. D. 1940, “the said day being Sunday,” appellant sold whisky to J. M. Rich. The second count charged that on the 9th day of June, 1940, “the said day being Sunday” appellant sold whisky- to Haskell Smith. Both counts were submitted to the jury, which returned two verdicts, one finding the appellant guilty of selling whisky to Rich as charged in the first count of the complaint and information, and assessing the punishment at a fine of one hundred dollars, and the other finding him guilty of a sale to Smith, as charged in the second count of the complaint and information, and assessing the punishment at a fine of one hundred dollars.

J. M. Rich and Haskell Smith were inspectors of the Texas Liquor Control Board. According to their testimony, they had gone to El Paso for the purpose of carrying on their official work. In the performance of their duties they went to a beer tavern and package store known as Tony’s Place, which was located at 3622 Oro Street, and purchased some whisky from appellant. We quote from the testimony of Mr. Rich as follows: “I walked up to the door and knocked at the door and was admitted to the beer establishment, and I went on through the beer establishment and entered into this small room where they have the booths, and I met Barragan (appellant) here, whom I had known on several occasions, and told Barragan that I wanted to get a pint of Yellowstone. Inspector Haskell Smith was with me, and he asked me to take a seat in the booth, which I did, and I took a seat in the booth * * *. In a few minutes Barragan returned and handed me a pint of Yellowstone Whisky, and I paid him $1.75. At that time, Inspector Haskell Smith asked him to get him half a pint.” Mr. Smith testified, in part, as follows: “When we went back there and were seated in the booth, he (referring to appellant) came back and sat a couple of glasses of water on the table, and Inspector Rich asked him to get some whisky, and he went off and immediately returned with a .bottle of whisky. It was a pint of whisky, and when he returned with it, he brought it there and sat it on the table, and Inspector Rich paid him $1.75 for it. As to what happened then, well, when he sat that down, immediately after that Rich asked me if I didn’t want some, and I said ‘Yes, I want a half pint of that Yellowstone Whisky/ and he (appellant) immediately went out and came back and sat a half pint of that whisky on the table. I paid him sixty-five cents for it.” The testimony of the inspectors was to the further effect that the transactions they had with appellant occurred at ten o’clock in the morning on June 9, 1940, which was Sunday.

Testifying in his own behalf, appellant admitted that he was employed at the place of business mentioned in the testimony of the inspectors. However, it was his version that he was not there at the time they claimed to have bought whisky, lie said the business was not opened until 11 a.m. on Sunday.

Joaquin Flores, a witness for appellant, testified that he lived in El Paso and operated a place of business at 3622 Oro Street. According to his testimony, his business was not supposed to be opened on Sunday until 11 a.m. ' He also testified that appellant was one of his employees.

Antonio Flores testified that he lived at 517 North Stevens Street in El Paso, Texas. He said that he owned the property “described as 3622 Oro Street,” and that his residence at 517 North Stevens Street was south of 3622 Oro Street. We quote from his testimony: “517 is south of the place of business. I use it as my residence. With reference to the place known as ‘Tony’s Place,’ * * * the front entrance of 517 is about twenty-five feet from ‘Tony’s Place.’ The place known as ‘Tony’s Place’ was originally operated by myself.” The witness also testified that the business operated at 3622 Oro Street was never opened on Sunday until 11 a.m.

The verdict of the jury on the first count read as follows: “We, the jury, find .the defendant, Ignacio Barragan, ‘guilty’ as chargee! in the First Count of the Information, and fix his punishment at —100 fine. L. C. Swor, Foreman.” A similar verdict was returned finding the appellant guilty as charged in the second count of the information. It is appellant’s contention that the verdicts are void on the ground that they fail “to properly state what punishment in fact the jury intended to affix.” We are unable to agree with this contention. The minimum penalty, as given in the charge of the court, was one hundred dollars. When reasonably construed, the verdicts in each instance indicate that the minimum penalty of one hundred dollars was assessed. In O’Docharty v. State, Tex.Cr.App., 57 S.W. 657, it is shown that the accused was convicted of carrying a pistol, his fine being assessed at twenty-five dollars, which was the minimum punishment under the statute in force at the time. It is further shown that the verdict of the jury was as follows: “We, the jury, find the defendant guilty as charged in the indictment, and assess his fine at 2500/100.” In upholding the verdict, this court said:

“In construing a verdict it is to be given such a construction as will give effect to every reasonable intendment, and a verdict is not to be void unless from necessity originating from doubt of its import, or its manifest tendency to work injustice, or its failure to contain that which some express provision of the statute requires. In construing a verdict the object is to arrive at the meaning of the jury. Chester v. State, 1 Tex.App. [702], 703. In Hopkins v. Orr, 124 U.S. 510, 8 S.Ct. 590, 31 L.Ed. 523, where the verdict of the jury was, ‘We find for plaintiff in the sum of thirteen hundred and ninety-nine and 48/100’ (the word ‘dollars’ being omitted), the court held the omission of the word ‘dollars’ would not prevent the rendering of judgment according to the manifest intent of the jury. See, also, Mayson v. Sheppard, 12 Rich.Law [S.C.] 254. Technical and unsubstantial objections to a verdict will not be considered in determining its sufficiency. Reynolds v. State, 17 Tex.App. 413, Where the sense of a verdict is clear, it is to be reasonably construed, and neither incorrect orthography nor ungrammatical language will render it illegal or void. Roberts v. State, 33 Tex.Cr.R. 83, 24 S.W. 895. The minimum punishment for carrying a pistol is $25. The jury returned a verdict of guilty, indicating clearly that appellant was fined $25. The mere presence of a dollar mark or the word ‘dollars’ prefixed or suffixed to the ‘250O/100’ would not make more certain what the jury intended by their verdict. It is a well-known aphorism of the law that that is certain which can be made certain. A casual inspection of this verdict, coupled with the charge of the court, makes the same absolutely certain. We do not think the court erred in refusing a new trial on account of an informal verdict.”

Bill of exception No. 2 recites that appellant, in his motion for new trial, alleged that the state failed to prove venue. Venue may be proved by circumstantial evidence. Allen v. State, 82 Tex.Cr.R. 416, 199 S.W. 633. Its proof beyond a reasonable doubt is not required. Allen v. State, supra. It has been observed that the witness Antonio Flores testified that he lived at 517 North Stevens Street in El ,Paso,. Texas, and that the place of business at 3622 Oro Street, where it was alleged the appellant sold the whisky, was about twenty-five feet from the home of the witness. This court judicially knows that El Paso is the county seat of El Paso •County. It follows that the testimony of the witness Flores was sufficient to show that the place of business where the sale was alleged to have occurred was in El Paso County, where the prosecution proceeded. It might be added that the bill of exception fails to set out evidence so as to negative the proof of venue, nor is it certified in the bill as a fact that venue was not proven. The bill is insufficient. Allen v. State, supra. We think the evidence sufficient to show venue as alleged.

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: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    STAPP v. STATE.
    No. 21131.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Rehearing Denied Jan. 22, 1941.

      Hill D. Hudson, of Pecos, and B. W. Smith, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with murder with malice, and by the jury convicted and sentenced to serve twelve years in the State penitentiary.

The salient facts are these: Appellant was chief of police of Monahans, Texas, and on September 13, 1937, Saturday night between 1 and 2 o’clock, was in a drink and dance hall about two and a half miles northeast of San Angelo, Texas, called the “Windmill”. Appellant had evidenced some boisterousness in the dance hall, and, while drinking, had exhibited his pistol, and announced that he was “a tough guy”. He had offered also to do some fancy shooting with such pistol, and had announced that he wanted no one to give him “any static”.

One Bonnard Cook, and a male companion in company with Sadie McMillan and another woman, were in the bar of this establishment, about 1 or 2 o’clock on Sunday morning, when appellant also entered the bar. Sadie McMillan, who was unacquainted with appellant, had on a small green hat which appellant removed from her head. She repossessed herself of the hat, and again appellant took the same off her head; her escort Bonnard Cook then took the hat back from appellant and placed same behind him (Cook). Appellant then said to Cook: “You don’t like that, do you?” and Cook replied: “No, I don’t.” Appellant then said: “What in the God damned hell are you going to do about it?” It seems that appellant jerked his coat open at such time, and the man Cook then struck appellant a severe blow with his fist over the eye and knocked him down, and appellant fell about six feet. Immediately Cook followed to where appellant was and grasped appellant’s pistol by ■the barrel and a struggle ensued. During this struggle the pistol was discharged, the bullet striking one Jack Runnels, a bystander, from which wound Runnels soon thereafter died.

Both of these parties were strong active men, appellant being about six feet two inches in height and Cook about six feet and strong and active.

The court gave an exhaustive and comprehensive charge on nearly every conceivable phase of this case, but unfortunately he seems to have omitted a charge on a self-defensive theory that seems to present itself from the witness Cook’s testimony.

Appellant did not take the stand, nor did he offer any testimony relative to the facts. He merely offered the testimony of certain physicians relative to ' the effects of such a blow as he had received from Cook just prior to the firing of the shot, their evidence offering grounds for the conclusion that such a blow would have caused a temporary unconsciousness, during which time no intent nor motive could have been formed by the human mind, and that therefore the firing of the shot that took Runnels’ life could not have been motivated by any malice toward Cook. He further only offered many character witnesses.

In appellant’s objections and exceptions to the court’s charge we find the following paragraph: “The defendant objects and excepts, in addition to the objections and exceptions heretofore submitted to the court, before any charge is read to the jury, to the court’s failure to set forth in his charge to the jury the law of self-defense and wholly fails to advise the jury of the rights of this defendant under the law of self-defense, and defendant herein now requests that the court give the charge on self-defense.”

We are convinced that a charge embodying the imperfect right of self-defense was called for by the State’s own testimony, and that same should have been given in conjunction with the court’s charge on murder without malice, and that such right of imperfect self-defense should only be utilized, if at all, in determining whether these facts evidenced an unlawful killing with malice, or such a one without malice. We do think that the facts as here presented present a proper case for the use of a charge on a provocation of the difficulty, or an imperfect self-defense, and that the trial court was in error when he failed to embody in his charge a paragraph dealing with such a doctrine.

Mr. Branch in his Penal Code, p. 1091, Sec. 1951, under the head of “Imperfect Self-defense,” has the following to say: “If the wrongful act of defendant produced the occasion or condition wherein it became necessary for his own safety that he .kill, he is not entitled to the perfect right of self defense, but the grade of homicide is regulated according to the magnitude of the wrong, and if defendant intended an ordinary battery or was a mere trespasser his right of self defense would not be wholly lost, but would be imperfect, and as such, might reduce the homicide to manslaughter. Reed v. State, 11 Tex.App. 509 [40 Am.Rep. 795]; King v. State, 13 Tex.App. [277], 283; Arto v. State, 19 Tex.App. [126], 136; Peter v. State, 23 Tex.App. [684], 687, 5 S.W. 228; Habel v. State, 28 Tex.App. 588, 13 S.W. 1001; Carter v. State, 30 Tex.App. 551, 17 S.W. 1102 [28 Am.St.Rep. 944]; Franklin v. State, 30 Tex.App. 628, 18 S.W. 468; Polk v. State, 30 Tex.App. 657, 18 S.W. 466; Franklin v. State, 34 Tex.Cr.R. [286] 287, 30 S.W. 231; Nicks v. State, 46 Tex.Cr.R. 241, 79 S.W. 35; Yarborough v. State [66 Tex.Cr.R. 311], 147 S.W. 272; Carver v. State [67 Tex.Cr.R. 116], 148 S.W. 746.”

We find in the record many bills of exception relative to certain remarks of the prosecuting attorneys that are attempted to be construed as a reference to the appellant’s failure to testify. We do not think such remarks are susceptible to such • a construction.

We think the statements and conduct of appellant in the dance hall, occurring some time prior to the shooting of Runnels, were admissible for the purpose of showing motive and malice, and the general and reckless disregard of the rights of others.

The remaining bills that relate to the misconduct of the jury need not be considered as such will doubtless not arise in the event of another trial.

On account of the trial court’s failure to charge on the law of self-defense as presented by the evidence, this judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

It is the State’s contention that the effect of our original opinion is to read into our present murder statutes, Articles 1256, 1257b, 1257c, Vernon’s Ann.Tex.P.C., Vol. 2, “adequate cause” as a matter of law. It was not our intention to so do, nor do we think our opinion can reasonably be so construed.

Art. 1257c (Acts 42d Leg., page 94) reads as follows: “In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

The trial court advised the jury as to the terms of said statute, and made application thereof as follows: “You are further instructed that if you believe from the evidence, or have a reasonable doubt thereof, from all the facts and circumstances in evidence, both those occurring at or about the time of the homicide, or prior thereto, that the mind of the defendant was in such condition of sudden passion arising from an adequate cause as to render it incapable of cool reflection, and that such cause, or causes, if any, was such as would have commonly produced a degree of anger, rage, resentment, or terror, in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and that, while in such condition of mind, the defendant committed the offense charged in the indictment in this cause, then the penalty assessed cannot be more than five years in the penitentiary.”

Under ordinary circumstances the application so made by the trial court would be all that is required as has been heretofore held in Youngblood v. State, 121 Tex.Cr.R., 465, 50 S.W.2d 315; Privett v. State, 123 Tex.Cr.R. 86, 57 S.W.2d 1102; Smith v. State, 124 Tex.Cr.R. 389, 61 S.W.2d 835; Butler v. State, 121 Tex.Cr.R. 288, 51 S.W.2d 384. We are also mindful of the fact that in the Butler and Privett case, supra, and also in Hettich v. State, 130 Tex.Cr.R. 580, 95 S.W.2d 113, we said the trial court' was not called upon to group or enumerate the various things claimed to have produced in accused’s mind a condition which rendered it incapable of cool reflection. We now reaffirm such statement as a sound legal principle in the ordinary case where the issue of a killing without malice arises.

If the facts raise the issue of a killing by one who because of his own conduct is deprived of the perfect right of self defense, yet does still have under certain state of facts, the imperfect or impaired right of self defense which makes applicable Art. 1257c (supra), how is the jury to know it unless the trial court has in appropriate terms in the charge applied the law to the facts as developed from the evidence?

We take the following to be a sound legal proposition supported by the many authorities cited in our original opinion from Branch’s Ann.Tex.P.C. If appellant’s conduct was intended by him to bring on trouble with Cook, and was calculated to and did cause Cook to strike appellant, but appellant had no intention to kill Cook, and the jury should find the facts so to be, and should further find that the result of the blow by Cook caused appellant to have a reasonable apprehension that he might suffer death or serious bodily injury at the hands of Cook, and further find that there was created in appellant’s mind a degree of anger, rage, resentment or terror which rendered his mind incapable of cool reflection, and that the facts and circumstances were such as would have produced such state of mind in a person of ordinary temper, and that while in such state of mind appellant had killed Cook, the jury, if they found such to be the facts, would not have been warranted under the px-ovision of Art. 1257b in assessing a greater punishment than five years in the penitentiary. If appellant killed Runnels while trying to kill Cook under the same circumstances the punishment would be the same. See Solis v. State, 76 Tex.Cr.R. 230, 174 S.W. 343.

We are not undertaking to set out á form of charge, but it occurs to us if the evidence raises the issues suggested in the foregoing statement under the facts, a further application of Arts. 1257b and 1257c would be called for in substance, as indicated.

In reply to thé State’s motion for rehearing appellant calls attention to his bills of exception complaining of the argument of the attorney for the State as referring to the failure of appellant to testify. A further examination of said bills leads the present writer to the conclusion that in some of the arguments counsel came dangerously close to violating the statute (Art. 710, C.C.P.) which forbids a reference to the failure of the defendant to testify as a witness.

Upon another trial, if appellant does not testify, it would be much safer for the representative of the State to discuss the admitted evidence, thereby avoiding the question raised in the bills mentioned.'

The State’s motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    GREEN v. STATE.
    No. 21394.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing wine in a dry area for the purpose of sale; the punishment, a fine of one hundred dollars.

Fred W. Winch, who was an inspector of the Liquor Control Board,'testified that on the 24th of June, 1940, he bought two pints of wine from appellant in Scurry County. The county attorney and counsel for appellant agreed in open court that Scurry County was a dry area, and further agreed that the wine introduced in evidence and identified by the witness Winch as the wine he had purchased from the appellant was intoxicating. Testifying in his own behalf, appellant denied making the sale of wine to the witness Winch.

No bills of exception are brought forward. The evidence is deemed sufficient to support the judgment of 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:
    GREEN v. STATE.
    No. 21395.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing beer in a dry area for the purpose of sale; the punishment, a fine of one hundred dollars.

Fred W. Winch, an inspector of the Texas Liquor Control Board, testified that he bought eight 12-ounce cans of beer from appellant in Scurry County on the 24th of June, 1940. It was shown by agreement that the county was a dry area. Testifying in his own behalf, appellant denied the sale.

No bills of exception are brought forward.

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:
    BANKS v. STATE.
    No. 21402.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    R. W. Webb, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky and beer in a dry area for the purpose of sale; the punishment, a fine of one hundred dollars.

It was agreed between the parties that Scurry County was a dry area. The sheriff of Scurry County testified that, operating under a search warrant, he searched appellant’s residence in Scurry County on the 29th of June, 1940, and found in the possession of appellant twenty-five twelve-ounce cans of beer and some bottles containing whisky. Some of the beer was in the ice box and was cold. Several cans of beer were hidden under a mattress. The witness testified further that he found a great number of “beer can-openers” and two small glasses “of the size used to pour in a drink of whisky.” Appellant testified that he and A. D. Davis possessed the liquor. He said that one of the bottles of whisky found by the sheriff belonged to him and the other to A. D. Davis. It was appellant’s further version that none of the liquor was possessed for the purpose of sale. Davis testified that he had procured a bottle of whisky under a prescription given him by a physician. He testified that he did not remember the name of the physician.

No bills of exception are brought forward. The evidence is deemed sufficient to support the judgment of 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:
    LACEY v. STATE.
    No. 21397.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    J. M. Willis, of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty.,1 of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for assault with intent to murder, with malice aforethought, punishment assessed being confinement in the penitentiary for a term of two years.

No statement of facts or bills of exception accompany the record. In this condition nothing is presented for review.

The judgment is affirmed.


author: KRUEGER, Judge.

text:
    DORSEY v. STATE.
    No. 21400.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Calloway Huffalcer, of Tahoka, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of one cow and calf. The punishment assessed is confinement in the state penitentiary for a term of five years.

The evidence adduced by the State, briefly stated, shows that about the 1st day of November, 1938, E. E. Hinshaw loaned to Homer Durham a cow to milk and take care of; as well as her calf. This cow and calf disappeared from the premises of Durham in the town of Gail ,in Borden County op the night of December j 19, 1938. On the next day the cow was recovered in Slaton, Lubbock County, where appellant had sold her to P. T. Gentry, .giving his name as E. A. Phillips and his residence .at Wilson. Hinshaw and Durham testified that the cow was taken without the consent of each of them.

Appellant testified that he and Durham ■engaged in a game of poker and after winning all of Durham’s money he (Durham) staked his cow on the game and appellant won her; that Durham asked him not to sell the cow in his own name as he did not want his wife to know that he had lost the cow in a poker game. The State proved that appellant had theretofore, in three separate and distinct cases, been convicted for theft of cattle.

By Bill of Exception No. 1 appellant complains of the introduction in evidence of the former judgments of conviction. The court qualified the bill and in his qualification states that on cross-examination appellant admitted that he had once been convicted theretofore and denied the other two; that the appellant’s objection thereto was that the record thereof would be the best evidence, whereupon the records were produced without further objection. The bill, as thus qualified, fails to reflect any error.

Bill of Exception No. 2 is also qualified by the trial court, who states in his qualification thereof that the matter complained of therein was not objected to or called to his attention during the trial nor in appellant’s motion for a new trial; that the first time it was mentioned to him by the appellant’s attorney was long after the trial and after the court had adjourned. The bill, as qualified, was accepted by ap-> pellant and fails to reflect any error.

By Bill of Exception No. 5 appellant claims misconduct of the jury in that they arrived at a quotient verdict, but no evidence is brought forward to substantiate his contention. Hence the matter complained of is not properly before this court for review.

A careful examination of Bills of Exception Nos. 3, 4, 6 and 7 has convinced us that they fail to reflect any reversible error.

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

PER CURIAM.

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


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    KAVANY v. STATE.
    No. 21172.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    Rehearing Denied Feb. 5, 1941.

      S.F. Hill, of Houston, and J. Alton York, of Bryan, for .appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is keeping and exhibiting for the purpose of gaming a gaming table and bank; the punishment, confinement in the penitentiary for two years.

The prosecution proceeded under Article 619, P.C., which reads as follows: “If any person shall directly, or as agent or employe for another, or through any agent or agents, keep or exhibit for the purpose of gaming, any policy game, any gaming table, bank, wheel or device of any name or description whatever, or. any table, bank, wheel or device for the purpose of gaming which has no name, or any slot machine, any pigeon hole table, any jenny-lind table, or table of 'any kind whatsoever, regardless of the name or whether named or not, he' shall be confined in the penitentiary not less than two nor more than four years regardless of whether any of the above mentioned games, tables, banks; wheels, devices or slot machines are licensed by law or not. Any such table, bank, wheel, machine or device shall be considered as used for gaming, if money or anything of value is bet thereon.”

Appellant contends that the evidence is insufficient to support the judgment of conviction. It was not controverted that a gaming table and bank were being kept and exhibited for the purpose of gaming in the house of appellant’s code-fendant Reese. For a description of such paraphernalia, see Reese v. State, Tex. Cr. App., 143 S.W.2d 395. The testimony of the arresting officers was to the effect that appellant was present in Reese’s house and was arrested along with Reese and other parties when the raid was made. It is appellant’s position that the proof fails to show that he had done more than participate as a player in the game. It is true that the proof on the part of the state showed that the codefendant Reese occupied and controlled the premises which the officers raided. Furthermore, it is true that the only witness for the state who testified that appellant sold the chips used by the players also testified that at times appellant participated in the game with the other players. Again, it is true that .this witness testified in' the first instance that he did not remember whether he bought any chips from the appellant or not. However, he (the witness) stated that the testimony he gave before the grand jury shortly after the alleged commission of the offense was true; and further he testified, after refreshing his memory, that during the progress of the game appellant would sell chips and call all bets.- We quote from the testimony of the witness upon redirect-examination, as follows: “According to my-grand-jury testimony which you have just shown me, I bought my chips from Kavany (appellant). That statement is true. If I said it at that time it was true. I don’t remember at this time whether I bought' them from him or not. I have read my statement before the grand jury and what I told the grand jury was true. * * * According to that testimony I did and I am sure it is true; the testimony is correct, if it was written like I gave it.”

Again, the witness testified as follows: “Did I say the dealer in the game at one time was Kavany ? I believe I said I didn’t remember. I admitted that I bought the chips from him. He was the dealer at one time. When he was dealing he called all bets when the participants were betting on the ‘do’ and ‘don’t.’ He would pay off' bets if they won. No, Koehler was paying off with the chips. When Koehler was working Kavany was on the other side of the table. I don’t remember what he was doing.”

It is shown in the testimony that after the arrest of appellant and his codefendant Reese appellant paid the players who had bought chips during the progress of the game, with money furnished him by Reese.

We deem it unnecessary to set forth the testimony in further detail. We think the statement we have made of the evidence is sufficient to show that thé jury were warranted in concluding that appellant exhibited the table. See Smith v. State, Tex.Cr.App., 33 S.W. 871. In Lettz v. State, 21 S.W. 371, this court said: “Counsel for appellant contend that he was not the owner, nor had any interest in the table. This is immaterial. He exhibited the table, and, whether he owned or had an interest in it or not, he violated the law when he exhibited it for the purpose of gaming.”

Appellant’s contention that the court was not warranted in charging on the law of principals can not be sustained. The proof is sufficient to show that appellant and Reese acted together in the commission of the offense. The fact that appellant had no control of the premises where the game was carried on- is immaterial. If he acted with Reese in keeping and exhibiting the gambling device in question for the purpose of gaming he and Reese were principals. Lettz v. State, supra.

Appellant insists that under the testimony he should have been prosecuted as the agent of Reese. This contention cannot be sustained. Under the proof offered by the state appellant directly kept and exhibited the table and bank.

Appellant’s bill of exception relating to the argument of the district attorney, as qualified, shows that the argument was based on the testimony adduced upon the trial. The bill fails to reflect error.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant asks for a review upon our part of the testimony in this matter, and again insists that there is no direct affirmative testimony showing his guilt, but instead he says that the main witness for the State merely makes the statement that if he swore certain things before the grand jury, then that such testimony was true, and thus incriminates the appellant as a keeper of these unlawful games.

While some of the State’s testimony seems to thus come from what might be termed an unwilling witness, nevertheless there also appears testimony herein that appellant sold chips to be used in these games, that he paid off persons who won in the game, and finally, in the presence of the arresting officers, made final payment to players who were in possession of such chips after the games had been concluded by the raid of the officers.

The single bill of exceptions complains of an argument of the district attorney relative to the disposition of certain companion cases against two other parties charged with participating in this same offense. The qualification to this bill, as well as the record, shows that the remark of the district attorney was based upon testimony first brought out by appellant’s attorney, and the complained of remarks seem to have been proper as legitimate argument.

We think the original opinion properly decides this case, and the motion is therefore overruled.


author: BLAIR, Justice.

text:
    SALADINER v. POLANCO et al.
    No. 9000.
    Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1941.
    Rehearing Denied Jan. 29, 1941.
    Ewell H. Muse, Jr., and Coleman Gay, both of Austin, for appellant.
    Polk Shelton, Chas. F. Herring, and Looney & Clark, all of Austin, for appel-lees.
   BLAIR, Justice.

This appeal is from an order overruling the plea of privilege of appellant, J. M. Saladiner, to be sued in Brazos County where he resided. The suit of appellee, Mike Polanco, was for damages for the death of his wife which resulted from a collision of the automobile in which she was riding with the truck of appellant driven by his agent or employe; and by controverting plea appellee sought to and sustained venue in Travis County under Sub. 9 of Art. 1995, which provides that “a suit based upon a * * * trespass may be brought in the county where such * * * trespass was committed.”

It is conceded by appellant that the proof was sufficient to sustain venue of the suit in Travis County and he states that “the sole ground of this appeal is that, as a matter of law, the controverting plea filed by (appellee) was insufficient and that (appellant’s) general demurrer to the controverting plea should have been sustained.” The controverting plea alleged the following acts of negligence: “That the agent of the defendant, Arthur Hearn, was driving said truck belonging to the defendant at the time and place of the accident in Travis County, Texas, in excess of the speed limit of the State of Texas, to-wit, more than 45 miles per hour. That the agent of the defendant failed to keep a proper lookout at the time and place of the collision. That all of the above acts were within the scope of the employment of the agent of the defendant. The agent of the defendant was driv-mg' said truck recklessly, carelessly and negligently at the time said accident occurred. That the agent of the defendant was driving said truck at the time and place under all circumstances at a speed in excess of which is reasonably safe and prudent. That the agent of the defendant, acting within the scope of his authority, failed to have proper lights that were visible under normal atmospheric conditions for a distance of 500 feet in front of said vehicle. That the agent of the defendant failed to operate said motor vehicle so as to have the same under control at the time and under the circumstances in' question. That the agent of the defendant failed to sound his horn immediately prior to the time of the collision. That the agent of the defendant failed to go around to the left of the motor vehicle in which the plaintiff's wife, now. deceased, was riding.”

The controverting plea then referred to and adopted portions of plaintiffs’ original petition as follows: “That the plaintiffs herein adopt and make a part hereof the plaintiffs’ original petition for the purpose of showing the acts of negligence on the part of the defendant and his agent at the time of said accident showing that the same was trespass within view of Article 1995, Rev. Civ.Stat. 1925 under subdivision 9 thereof.”

We regard this case as being controlled by the cases of A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391. Suffice it to say that the controverting plea itself did not state :a cause of action by appellee against appellant. It merely alleged that appellant’s agent was guilty of certain acts of negligence in the operation of the truck at the time of the accident in Travis County; and that the agent “failed to go around to the left of the motor vehicle in which plaintiff’s wife, now deceased, was riding.” It does not allege that the wife died as the result of any injury received in the collision; nor that there was a collision; nor that any damages resulted therefrom. The reference to and adoption of the petition was limited to and was only “for the purpose of showing acts of negligence on the part of the defendant and his agent at the time of said accident showing that same was a trespass within the view of Article 1995, Rev.Civ.Stat. 1925 under subdivision 9 thereof.” This reference did not adopt nor incorporate the cause of action asserted by appellee in his petition. The two cases above cited hold that the controverting affidavit must itself state a cause of action for, trespass; and that the petition cannot be considered 'in aid of the controverting affidavit unless it is adopted of so incorporated by reference showing that plaintiff intended to unreservedly swear to all facts contained in the petition as constituting his cause of action for damages resulting from the collision or trespass.

Since the facts showed venue of the suit in Travis County, we reverse the order of the trial court appealed from and remand the cause in order that appellee may amend his controverting affidavit so as to comply with the rule announced by the Supreme Court in the cases herein cited.

Reversed and remanded.


author: NORVELL, Justice.

text:
    HALL et al. v. MILLER et ux.
    No. 10826.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Feb. 5, 1941.

      Lloyd & Lloyd and R. R. Mullen, Jr., all of Alice, for appellants.
    Russell B. Wine, of San Antonio, Thos. H. Ward, of Laredo, and Frank T. Mor-rill and Perkins & Floyd, all of Alice, for appellees.
   NORVELL, Justice.

This is an appeal from a judgment based upon a special issue verdict whereby appellees, J. William Miller and Mary C. Miller, husband and wife, recovered the title and possession of approximately 80 acres of land, being Lot Ño. 18, Block No. 11, of lands adjoining the Townsite of La Gloria, in Jim Wells County, Texas. The judgment also removed clouds cast upon the appellees’ title by a certain contract and deed bearing dates of October 23d and October 16th of the year 1930, respectively.

Defendants below were Midwest Building and Investment Company, E. S. Gates, president of the Company, Patrick Magee and Albert A. Hall. Hall was the named grantee in the deed above mentioned and brings the case here.

As analyzed by us, the controlling question presented is one of limitation. Appellant urges certain assignments complaining of the admission of testimony and the manner in which the case was submitted to the jury. We have carefully examined these assignments and are of the opinion that an error necessitating a reversal of the case is not shown.

According to the jury findings, which are supported by the evidence, supplemented by such facts as were uncontro-verted in the trial court, it appears that appellees were the victims of a fraudulent conspiracy on the part of the defendants, which had for its purpose the unlawful acquisition of the title to the property in dispute without the payment óf a consideration therefor.

Prior to the month of October, 1930, ap-pellees, who were then approximately seventy years of age, owned the 80 acres involved, They resided in San Antonio, Texas, and about the month of October of 1930, Patrick Magee, as agent of Midwest Building and Investment Company, entered into negotiations with them concerning the exchange of the property for certain corporate shares and a small amount of cash.

These negotiations culminated in written agreement whereby the Midwest Building and Investment Company agreed to deliver to appellees $3,000 in shares of the National Portland Cement Company and $520 in cash for the property. The investment company further agreed to expend $480 in clearing the property. It was apparently contemplated that after the clearing operations had been completed, the property would be sold for $50 an acre or more, for the benefit of appellees. The contract is somewhat unusual and the jury 'in effect found that it was simply a part of a fraudulent device to obtain a deed to appellees’ property. About the time the contract was signed, appellees also executed a deed conveying the property to appellant Hall. This deed bears date of October 16, 1930, but evidently, according to the jury’s findings, its execution was secured by Magee at the time the contract was signed, under a representation that it was a contract or a part of the contract under which ap-pellees were to convert their property into cash and corporate stocks. Appellees testified positively that they had not intended to execute a deed, and did not know they had done so until long after the transaction. The jury findings were in accordance with appellees’ version of the transaction.

Hall denied that he had any connection with Magee, Gates or the Midwest Building and Investment Company, but the jury found that he had notice of the fraud practiced upon appellees, and was in fact a party to the conspiracy which resulted in appellees executing the deed for which they received nothing of value. These jury findings have support in the evidence and are therefore binding upon this Court.

Hall filed the deed for record in the office of the County Clerk of Jim Wells County on December 6, 1930. It also appears that during the year 1931 Hall called upon the appellees and informed them that he had purchased the land. By letter, dated October 23, 1931, Hall informed the Millers that he claimed the 80 acres clear of any claim they might have against Gates and stated that he intended to hold them responsible in the event damages should occur to him as a re-suit of the Millers’ claims against the property. The record shows that Miller’s attorney also had some correspondence with Hall about the property during the year 1931.

It seems that prior to the transaction whereby Hall obtained a deed to the property, the Millers leased the land to one L. A. Burdett under an agreement whereby the lessee was to pay the taxes upon the property as rent. Burdett did not testify upon the trial. His son, Clifford, was called as a witness, however, and testified that he was in actual possession of the property, holding under his father, and that he had never heard of MR Hall until about a year before the trial, which took place in November, 1939.

Appellees present in effect three theories of recovery and the case may be best discussed from the standpoint of these contentions which are:

1'. That because of the circumstances under which the deed Vas executed and delivered it was an absolute nullity and passed no title to Hall.

2. That, if the deed did pass title, it should be cancelled and set aside because of the fraud practiced upon appellees. As a corollary to this position, appellees assert that a rescission is not barred by limitation, as the issue of limitation involved matters of fact, and appellant failed to request that the same be submitted to the jury, thereby waiving the defense of limitation.

3. That if the deed served to convey title to Hall, he took as a trustee ex mal-eficio, subject to the equitable interests of appellees.

Appellees’ original' petition was not filed until September 6, 1938, almost eight years after the transaction which gave rise to the deed, and appellant pleaded in bar the .four-year statute of limitations, Article 5529, Vernon’s Ann.Tex.Civ.Stats. He also pleaded Articles 5507 and 5509, Vernon’s Ann.Tex.Civ.Stats., the three and five-year real property statutes of limitations. As to the last two articles-pleaded, there was no evidence introduced upon the trial which would support a holding that appellees’ action was barred by the limitation statutes relating to' causes for the recovery of real property.

We are unable to agrée with ap-pellees as to.the correctness of their first conténtion — that the deed is a nullity.There are reported cases in which a deed whose execution and delivery is procured by fraud is described as being void. In such cases it is generally found that a question of innocent purchaser or limitation is not involved, and there was therefore no necessity for making a distinction between a “void” and a “voidable” conveyance. The case of Ramirez v. Bell, Tex.Civ.App., 298 S.W. 924, writ refused, opinion by Chief Justice McClendon, seems controlling here. In that case it was pointed out that the fraudulent procurement of a genuine signature to an instrument does not constitute forgery, and such an instrument is effective as a conveyance of the legal title at least, until set aside or avoided by the defrauded person. A suit brought for the purpose of cancelling a written instrument is governed by Article 5529 providing that “Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” We believe that the record in this case shows as a matter of law that after the transactions and letters of 1931, appellees knew or by the exercise of reasonable diligence could have known that a fraud had been perpetrated upon them, and therefore the statute of limitations commenced running. Glenn v. Steele, Tex.Sup., 61 S.W.2d 810. We therefore hold that any right of rescission which appellees may have had is barred by limitation, according to the undisputed testimony in the record. Ap-pellees’ second contention advanced in support of the judgment is not well taken.

Appellees’ third contention in support of an affirmance of the trial court’s judgment is based upon the theory of a constructive trust. In the case of Hendrix v. Nunn, 46 Tex. 141, it was pointed out that it would be fallacious to suppose that a court of equity would construct a trust in every case in which there was fraud, even though the fraud would be sufficient to annul a contract by way of cancellation. However, the record here, including the jury’s findings, presents a set of facts under which a court of equity must necessarily raise a trust relationship under accepted equitable principles. The ■ jury verdict supports the theory that appellees’ signatures to the deed in question were secured as a result of a fraudulent trick or scheme designedly planned to accomplish that result. We have something more in this case than the mere breach of a contract or covenant to pay a consideration. As the jury found that Hall was a member of the conspiracy entered into for the accomplishment of this unlawful result and had knowledge of the fraud perpetrated upon appellees, it follows that he took title ex maleficio; that he held the legal title for the benefit of appellees who retained the equity. Faville v. Robinson, 111 Tex. 48, 227 S.W. 938; Martin v. Martin, Tex.Civ.App., 130 S.W.2d 863; Pomeroy’s Equity Jurisprudence, 4th Ed., § 1053; 42 Tex.Jur. p. 655, § 50; 26 R.C.L. p. 1236, § 83.

The interest of the cestui que trust under a constructive trust is an equitable title and not a mere equitable right. An action of trespass to try title may be maintained upon such an equitable title against the holder of the legal title without first setting aside the instrument giving rise to the legal title. Schuyler v. Lacy, Tex.Civ.App., 79 S.W.2d 901; Jewell v. Hart, Tex.Civ.App., 244 S.W. 827.

In Carl v. Settegast, Tex.Com.App., 237 S.W. 238, 241, Judge McClendon, then a member of the Commission of Appeals, said: “It is now well settled upon authority in this state that the test whether an action be one to recover real estate, within the express exception to this article [5529], is whether the title asserted by plaintiff, whether legal or equitable, will support an action in trespass to try title. In determining this question the mere form in which the action is brought is not material. The authorities relied upon by defendants are those the facts of which bring them within the principles announced in McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315, in which Judge Williams very ably discusses the question here presented. It is there pointed out that, if, to show title in the land sued for, the plaintiff must first invoke the equitable powers of the court to set aside or reform some deed or other written instrument or judgment, not absolutely void as to the plaintiff, the action is not one to recover real estate within the terms of the exception to the four-year statute. On the other hand, it has been repeatedly held that where plaintiff’s action rests upon an equitable title, to assert which does not require the aid of a court of equity to remove the impediment to such title caused by some written instrument or judgment, the action is one for the recovery of real estate, and the four-year statute of limitations does not apply. This doctrine is established by the following cases: Stafford v. Stafford, 96 Tex. 106, 70 S.W. 75; Gilmore v. O’Neil, 107 Tex. 18, 173 S.W. 203; Home [Inv.] Co. v. Strange, 109 Tex. 342, 195 S.W. 849, 204 S.W. 314, 207 S.W. 307; Rutherford v. Carr, 99 Tex. 101, 87 S.W. 815; Bell County v. Felts (Tex.Civ.App.) 120 S.W. 1065.” See also Jewell v. Hart and Martin v. Martin, supra.

We therefore hold that Article 5529 is not applicable to appellees’ pleaded cause of action based upon the theory of a constructive trust. The applicable limitation statutes are those relating to suits for the recovery of real estate, • and, as above pointed out, appellant failed to show such possession as would comply with the provisions of the three and five-year statutes. Articles 5507 and 5509, supra. The trial court correctly entered judgment for ap-pellees, and its judgment is accordingly affirmed.

On Motion for Rehearing.

Appellants’ motion for rehearing is overruled. The authorities cited in our original opinion substantiate our holding that a constructive trust arose out of the transaction here involved. In Ruling Case Law it is said: “It is a well settled general rule that if one person obtains the legal title to property, not only by fraud, or by violation of confidence of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by .impressing a constructive trust upon - the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.” 26 R.C.L. 1236.

In support of the text, the case of Drury v. Cross, 7 Wall. 299, 305, 19 L.Ed. 40, is cited. In that case the Supreme Court of the United States held that equity would raise a constructive trust in property when the legal title thereto had been secured by means of fraudulent scheme or device. That honorable Court said:

“The scheme to acquire the property of this corporation was, in its inception, fraudulent, and every step in the progress of its execution was necessarily stamped with the same character. * * * The fruits of such an adventure cannot be enjoyed by the parties concerned in it. * * *
“Cross, Luddington, and Scott [the defendants] must be held liable as trustees * * * tf

Motion overruled.


author: NORVELL, Justice,

text:
    STATE et al. v. LITTLEFIELD.
    No. 10761.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    Rehearing Denied Feb. 5, 1941.

      Gerald C. Mann, Richard H. Cocke, Pat Coon, and Geo. W. Barcus, all of Austin, for appellants.
    Duncan & Davis and John A. Romberg, all of Gonzales, for appellee.
   NORVELL, Justice,

This is an appeal from the district’court of Gonzales County awarding damages to appellee, O. I. Littlefield, for injuries to real property alleged to have been caused by the obstruction of the natural flow of the waters of O’Neil Creek across appel-lee’s land, resulting from the- construction of Highway No. 80, by the appellants, who are .the State of Texas and its State Highway Commission. The judgment appealed from is 'based upon a special issue jury verdict.

Appellants’ brief contains seventeen assignments of error, followed by eight general propositions of law. No assignment or proposition is briefed separately, but some of them are discussed under various subheads under the general title of “Statement, Authorities and Arguments.” This court is not required to consider assignments of error which are not briefed, unless a fundamental error is disclosed. Certain assignments in appellants’ brief are not discussed or mentioned in that part of the brief entitled generally “Statement, Authorities and Argument.” These assignments will be considered waived and not further noticed as none of them present fundamental error.

Appellants contend that there is neither pleadings nor evidence to support the judgment of the trial court. In support of this contention, it is pointed out that appellee, who owned a 204.5-acre tract, conveyed 5.36 acres thereof to the State for highway purposes, and that the State is not liable for 'the negligence of its agents. From this it is argued that any damage resulting from the construction of the highway by reason of the obstruction of the waters of O’Neil Creek either resulted from negligence for which the State is not liable, or was such an injury as would naturally result from the construction of the highway, and therefore appellee received full compensation therefor when he conveyed the 5.36-acre strip to the State. This contention is overruled. The consideration for the right-of-way conveyance can not “properly be held to embrace damages which might thereafter accrue from constructing the roadway in such manner as to overflow and thereby injure appellees’ lands.” State v. Hale, Tex.Civ.App., 96 S.W.2d 135, 141. Appellee’s suit is not based upon negligence, but is one seeking compensation for private property damaged by public use.

Appellant also contends that the authorization of the Legislature for the bringing of this suit limits the recovery of appellee to the land actually inundated and washed away as the result of the obstruction in the natural flow of the waters of O’Neil Creek caused by the construction of the highway.

The resolution of the Legislature reads as follows:

“Whereas, it is alleged that said highway was constructed in such a manner as to cause the flood waters of certain creeks to flow over, inundate and wash away certain farm lands belonging to O. I. Little-field and to destroy growing crops on said land, thereby causing great damage to said Littlefield. * * *
“Resolved that the said O. I. Little-field, be and he is hereby granted permission to bring suit against the State of Texas and against the Highway Department of the State of Texas * * * in order to determine what compensation, if any, he is entitled to receive by reason of such damage.”

Appellee pleaded that approximately 65 acres were actually inundated. The judgment was based upon jury findings as to the diminished market value of appellee’s entire tract of 199.14 acres. The resolution of the Legislature can not be construed as restricting appellee to the damages for that portion of his farm actually destroyed, and it is well settled that the taking or destruction of a part of a tract may, and often does, diminish the value of the remainder of the tract and damages are recoverable therefor. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979; State v. Hale, supra.

Appellants challenge the sufficiency of the evidence bearing upon the issue of the damages sustained. Appellee testified that his land was worth $35 per acre prior to the construction of the highway. The jury found the value to be $25 per acre. No witness testified that in his opinion the land had the value fixed by the jury. . There was testimony, however, that the land was worth only $15 per acre prior to the construction of the highway. The statement of facts also discloses other evidence which could properly be considered by the jury on the issue of market value, although this evidence is not in the form of an opinion as to the market value per acre. A jury finding as to market value is not without support of the evidence simply “because no witness testified to the identical amount” found by the jury. Appellants assignments and propositions on this point are without merit and are overruled. Adams v. Cohn, Tex.Civ.App., 28 S.W. 909; Houston Tie & Lumber Co. v. Hankins, Tex.Civ.App., 200 S.W. 237.

Appellants further contend that the trial court submitted an erroneous measure of damages to the jury. No authorities are cited in support of this contention, and we are only called upon to decide whether or not the trial court’s charge is subject to specific objections made before the submission to the jury which have been properly carried forward by assignments of error.

By special issue No. 3, the jury was required to find the market value per acre of appellee’s land in 1934, immediately before the construction of the highway. Special issue No. 4 inquired as to the market value .of the land in June 1936, after some injury was alleged to have’occurred.

Appellants’ assignments of error are predicated upon the following objections to the trial court’s charge, viz.:

1. '‘Defendants (appellants) except and object to Special Issue No. 4, for the reason that the same does not submit to the jury in whole or in part any proper measure of damages recoverable in this cause.”
2. “Defendants (appellants) further except and object to Special Issue No. 4 because the same does not confine the finding of the jury as to the value of plaintiff’s (appellee’s) land to the time immediately after the construction of Highway No. 80.”
3. ‘.‘Defendants (appellants) further except and object to Special Issue No. 4 for the reason that the same does not confine the finding of the jury to any particular date or time, but allows the jury to speculate on the value of plaintiff’s (appellee’s) property over a period of approximately two years and to find the value of said land at any time during said two year period, and is too indefinite and calculated to mislead the jury.”

Appellants’ first objection is too general and can not be considered. Hall’s Bayou Realty Corporation v. James, Tex.Civ.App., 107 S.W.2d 1113; Abilene & Southern Railway Company v. Herman, Tex.Civ.App., 47 S.W.2d 915.

Appellants’- second and third objections are apparently based upon the theory that the correct measure of damage is the difference in value of the land immediately before and immediately after the construction of the highway. There are cases which refer to this measure as being correct. It is, however, well settled that in all cases where damages result from interference with the flow of water, the issues relating to damages are not arbitrarily restricted to two questions, one relating to the value immediately before the erection of- the obstruction and the other relating to the value immediately after-wards. City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57.

It has been held that no reversible error is shown simply because the submission of the value of lands before the erection of an obstruction to the flow of water is followed by an issue inquiring as to value of property a number of years later, after the injury has occurred, where there is no showing that some other factor contributed to the depreciation in value. In this case, appellants bring forward in their brief no evidence or reference to the statement of facts which would indicate that some factor other than the obstruction of the flow of water in O’Neil Creek contributed to the depreciation in value of ap-pellee’s land. Hall’s Bayou Realty Corporation v. James, supra; Owens v. Missouri Pacific Railway Co., 67 Tex. 679, 4 S.W. 593.

Appellants further contend that the case must be reversed because of misconduct of the jury. It appeared that during their deliberations each of the jurors wrote on a piece of paper the amount he believed should be awarded to appellee as damages. The jurors who testified on the motion for new trial stated that there was no agreement that the amount of damages should be determined by a quotient method. Under the evidence, the trial court was justified in holding that this occurrence was part of an effort on behalf of the jurors to compose their differences and that the verdict was not the result of an illegal agreement. Yellow Cab Corporation v. Halford, Tex.Civ.App., 91 S.W.2d 801; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; 31 Tex.Jur. p. 53, sec. 46.

Appellants having failed to show reversible error, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Since our original disposition of this case, the Supreme Court of this State has written in the case of State of Texas v. Hale, 146 S.W.2d 731. The holdings of the Austin Court of Civil Appeals (reported in 96 S.W.2d 135, and cited in our original opinion) were in the main upheld. The Supreme Court opinion supports our holding that this cause of action lies, as it is one seeking compensation for private property damaged by public use. It also supports our construction of the Legislative Resolution authorizing the suit to be brought, i. e., that the damages recoverable by Littlefield are not restricted to the acreage actually inundated.

We might also point out that the evidence in this case supports a recovery for damages to the entire 199.14 acres owned by Littlefield, and in that particular, this record differs from the record before the Supreme Court in the Hale case.

Littlefield introduced his deed in evidence, containing a metes and bounds description embracing 204.50 acres, also his conveyance to the State for highway purposes, 5.36 acres, leaving a balance of 199.14 acres. He also testified that he has been in possession of the entire tract since the date of his deed in 1906. This evidence forms the acreage basis of the award for damages, which was found by the jury to be $5 per acre, making a total of $995.70, the amount of the judgment..

Appellants’ motion for rehearing is overruled.


author: MURRAY, Justice.

text:
    WILLIAMS v. CREIGHTON et al.
    No. 10842.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Feb. 5, 1941.
    G. Woodson Morris and Tom H. King, both of San Antonio, and Tom Smiley, of Karnes City, for appellant.
    Eskridge & Groce, of San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted in the District Court of Karnes County by Geral Williams, in the nature of a bill of review, against John Orde Creighton, Jr., and Mrs. Pauline Creighton, as joint executor and executrix of the estate of John Orde Creighton, deceased, and Mrs. Pauline Creighton, individually, seeking to set aside an order dismissing cause No. 4012, formerly on the docket of the District Court of Karnes County and styled Geral Williams v. J. O. Creighton, Mrs. J. O. Creighton and D. S. Abernathy.

A general demurrer to plaintiff’s first amended original petition was sustained and upon his .refusal to amend judgment was rendered dismissing the cause, and from this judgment Geral Williams has prosecuted this appeal.

Cause No. 4012 was a suit by Geral Williams against J. 0. Creighton, Mrs. J. O. Creighton and D. S. Abernathy seeking to recover damages for personal injuries sustained by him as a result of a collision between two automobiles, one driven by Mrs. Creighton and the other by D. S. Abernathy. A trial of this case was had in the District Court and resulted in a judgment for the defendants. An appeal was taken by Geral Williams and the case was ultimately decided by the El Paso Court of Civil Appeals. The judgment of the trial court was affirmed insofar as D. S. Abernathy was concerned, but was reversed and the cause remanded insofar as the Creightons were concerned. The costs were adjudged against the Creigh-tons. This decision was rendered on March 19, 1936, and is to be found in Vol. 93 S.W.2d beginning at page 195.

On February 9, 1936, just prior to the rendition of the decision, J. O. Creighton died and Mrs. Creighton and her son, J. O. Creighton, Jr., were appointed as joint executrix and executor of the estate. The costs were not paid within one year, a certificate to this effect was secured from the Clerk of the El Paso Court of Civil Appeals, filed in the trial court and a dismissal of the cause thereby obtained in accordance with the provisions of Article 1867, R.C.S.1925. Appellant points out that he did not have the money to pay the costs, being an indigent person, that he could not secure the issuing of the mandate without the payment of the costs in accordance with the provisions of Art. 1866, R.C.S.1925, because that article requires that the affidavit of inability to pay costs must be made by the party against whom the costs have been adjudged and they were not adjudged against appellant. He could not require the estate of J. O. Creighton, deceased, to pay such costs during the first year of its administration, Art. 3437, R.C.S.1925, and that Mrs.' Creighton would not pay one-half of the costs until the estate payed the other one-half.

Appellant contends that this leaves him wronged without a remedy, contrary to the principles of equity, and that we should therefore hold invalid Art. 1867, R.C.S.1925, providing that, the cause may be dismissed upon the filing in the trial court of a certificate that the costs were not paid within one year after final judgment in the Court of Civil Appeals. These provisions of the statutes were held to be valid in Watson v. Boswell, Tex.Civ.App., 73 S.W. 985, and we have no disposition to disagree with that decision, but, on the other hand, we aré in thorough accord with it and therefore 'hold that said Art. 1867 is not unconstitutional.

Appellant also contends that regardless of the provisions of the various applicable statutes the' trial court, as a matter of equity, should have set the judgment of dismissal aside and have given him a hearing upon the merits of his cause of action. We overrule this contention. In the first place the provisions of Art. 1867, supra, are mandatory, requiring that when the required certificate is filed in the trial court the cause must be dismissed, and in the second place appellant was guilty of laches in not filing his bill of review earlier. The cause was dismissed on the 6th day of January, 1938. Appellant knew of this action ,on September 9, 1938, and did not file his bill of review until July 24, 1939, more than ten (10) months after he knew his cause had been dismissed. Ruland et ux. v. Ley, Tex.Com.App., 144 S.W.2d 883, (not yet reported [in state report]); Osborn v. Younger, Tex.Com.App., 235 S.W. 558.

The judgment of the trial court is affirmed.


author: SMITH, Chief Justice.

text:
    YAEGER v. LONG BROS. DRILLING CO.
    No. 10760.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1941.
    Rehearing Denied Feb. 5, 1941.
    George M. Mayer, of San Antonio, for appellants..
    Thos. H. Ward, of Laredo, for appellees.
   SMITH, Chief Justice.

J. E. Long (and another) sued W. H. Yaeger (and wife) to recover the contract price for drilling a water well for Yaeger on his land in Webb County. Long alleged that the original contract, in writing, required him to drill to a depth of 700 feet, if necessary to produce a “flowing well;” that reaching that depth without the desired result, it was agreed orally that he should drill further in the hope of reaching flowing water, and under that agreement he did drill further to a depth of 803 feet, without getting flowing water; that Yaeger refused to pay the agreed price of $1.50 per foot for the drilling. Long prayed for and recovered upon that basis, and Yaeger has appealed.

The cause was tried to a jury, who found for Long on all issues pleaded and submitted, except upon the issue of whether Long negligently failed “to wash the mud out of possible water-bearing formations by forcing clear, clean water down into the hole, to the point where the casing was set,” which the jury resolved against Long. Yaeger will be referred to as defendant, and Long as plaintiff, as in the trial court.

While plaintiff was under cross-examination he was asked this question by defendant’s counsel: “All right, then, under this contract, assuming that the purpose of drilling this well was to produce a flowing well, an artesian well, would you say that you have used every reasonable means and precaution to produce a flowing well ?”

To this question plaintiff seems to have interposed no objection, but the trial judge, upon his own initiative, directed plaintiff not to answer the question, for the stated reason, in effect, that the test encompassed in the question exacted a greater obligation from plaintiff than was imposed upon him in the contract. Defendant excepted to the ruling, but when later in the trial the court invited him to put plaintiff back on the stand and elicit an answer from him to the excluded question, defendant declined to take advantage of the tendered privilege and stood on his original objection and exception, which he presents in his first assignment of error. We are of the opinion that the incident does not present reversible error, for two reasons, if no more. First, defendant waived his complaint when he declined to reopen the matter upon the court’s invitation ; and, second, while not passing upon the soundness of the court’s stated reason for excluding the question, we do express the opinion that the excluded question called for a conclusion of the witness upon 3 mixed question of law and fact, thereby invading the province of the jury to pass upon the controlling issue in the case. We overrule defendant’s first assignment of .error and his first and second propositions of law based thereon.

We overrule defendant’s second assignment of error in which complaint is made of the action of the trial judge in overruling defendant’s motion for directed verdict. This was clearly a jury case, and the trial judge did not abuse his discretion in refusing to take it from the jury.

In his third assignment of error defendant asserts that the court erred in rendering judgment in the face of the jury finding that, as stated by defendant, “the failure to wash the mud out of possible water-bearing formations by forcing clear, clean water down into the hole to the point where the casing was set, was due to the negligence of plaintiffs, * * * .” This finding lacked controlling .effect without a further finding that plaintiff’s negligence in the respect mentioned was a proximate cause of the failure to develop a flowing well. By rendering judgment for plaintiff the trial judge is presumed to have found (and the evidence supported such finding), that such negligence of plaintiff was not the proximate pause of the failure of the well, and therefore could not defeat plaintiff’s recovery for the value of his services.

No reversible error is shown and the judgment must be affirmed.


author: MONTEITH, Chief Justice.

text:
    SCHULENBURG MUT. LIFE INS. ASS’N v. HUBER.
    No. 11161.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1941.

      Hollis Massey, of Schulenburg, for appellant.
    Dan Hruska, of Bellville, for appellee.
   MONTEITH, Chief Justice.

This action was brought by appellee, Hilda Huber, to recover, as beneficiary, under a policy or certificate of life insurance issued by appellant, Schulenburg Mutual Life Insurance Association, a local mutual aid association, on the life of her deceased husband, Sam Huber.

Appellee admitted in her pleadings that the insured was not in good health at the time the application for insurance was made or at the time the certificate was issued by appellant. She prayed for judgment for only one-fourth of the face amount of the certificate of insurance, claiming under a provision thereof which provided that if the death of the insured occurred within 12 months from the date of the certificate and if it resulted from any ailment which existed at the time application therefor was made, the beneficiary would be entitled to receive only one-fourth of the face amount thereof.

Appellant answered by denial of liability under said certificate of insurance. It alleged that insured was afflicted with cancer at the time of application for the certificate, as well as at the time of the issuance and delivery thereof to him, and that by virtue of the provisions of said application and certificate the contract never took effect, but that, on the contrary, it was void and unenforceable.

In a trial before the court judgment was rendered in favor of appellee for the sum of $250.

The certificate of insurance in question was for the face amount of $1,000. It contained the following provisions:

“Paragraph 4: It is mutually agreed and understood that if the death of the insured hereunder results from heart disease, cancer, paralysis, kidney trouble, diabetes, stomach trouble, rheumatism, high blood pressure, tumor, dropsy, Bright’s disease, goiter, or any other chronic disease, or complications thereof, or from any ailment which existed at the time the application was made, within twelve (12) months from the date of this certificate, or within the contestable period from the date of any reinstatement, then in such case the beneficiary hereunder shall receive only one-fourth (½) of the amount provided in this certificate and the membership of this group shall be assessed, as needed, accordingly.”
“Paragraph 15: It is agreed, hereby, that all answers to all questions set forth in the application of the insured, shall in the absence of fraud, be deemed representations and not warranties; and any untrue statement made in the application as to age, health, character, or any other untrue statement that would materially increase the risk assumed, shall cause this certificate to become null and void, and no liability shall exist against this Association. It is also agreed and understood hereby, that if the age of the insured has been misstated, the amount of insurance payable after death shall be such as the assessments paid would have purchased at the correct age.”
“Paragraph 16. I have read this certificate and understand the conditions and provisions contained therein. I also warrant and declare that all answers and statements given in my application, for this certificate of insurance, are true and correct; and that on the date this certificate was delivered I was in good health.”
“I hereby accept this certificate subject to all conditions and stipulations contained therein.”

Said certificate was signed and accepted by the insured on July 12, 1939. He died from the affects of cancer on March 13, 1940, approximately eight months after becoming a member of appellant association.

In answering the questions contained in the application for insurance, the insured stated that he was then in good health and free from any chronic disease or ailment and that he had not suffered from any illness during the five years preceding the date of said application. Appellee, Hilda Pluber, testified that her husband was walking on crutches at the time he made application for said insurance. Dr. Neely, insured’s personal physician, testified that he had never told Huber that he had cancer and that he, Huber, did not know that he was suffering from cancer. Huber told appellant’s agent at the time the agent took his application for said insurance that he had been having treatments to his foot.

This appeal involves the construction of the terms of said certificate of insurance.

It is a well settled rule in the construction of insurance contracts that, if the language employed by an insurance company is ambiguous, then it must be most strongly construed against the com-, pany and in favor of the insured. American Bankers Life Insurance Co. v. Baker, Tex.Civ.App., 126 S.W.2d 56; National Liberty Ins. Co. v. Herring National Bank of Vernon, Tex.Civ.App., 135 S.W.2d 219; Home Ins. Co. v. Springer, Tex.Civ.App., 131 S.W.2d 412; Southwestern Life Ins. Co. v. Houston, Tex.Civ.App., 121 S.W.2d 619.

This rule has been uniformly followed by the Supreme Court of this state. The court, in the case of McCaleb v. Continental Casualty Co., 132 Tex. 65, 116 S.W.2d 679, 682, speaking through Justice Sharp, says: “In construing the language used in a policy [of insurance], if it is ambiguous or contains inconsistent terms, in order to arrive at the true intention of the parties expressed therein, the well-known rule that insurance contracts should be construed strictly against the insurer, and in favor of the insured, will control.” Citing Commonwealth Bonding Co. v. Bryant, 113 Tex. 21, 240 S.W. 893; Kemper v. Police & Firemen’s Ins. Ass’n, Tex.Com.App., 44 S.W.2d 978; 24 Tex.Jur. pp. 702-711; 52 Corpus Juris, 1152.

In the instant case those parts of above quoted paragraph 4' of said insurance certificate, upon which appellee relies, omitting those parts which have no application here, may be expressed in the following language: “If the insured shall die within one year of heart disease, cancer, * * *, or complications thereof, or from any ailment which existed at the time application for the insurance in question was made, then, in such case, the beneficiary thereunder shall receive only one-fourth of the amount provided in said insurance certificate, or the sum of $250.00.”

This provision, standing alone, is plain, certain, definite and unambiguous. It is an unconditional promise on the part of the appellant to pay the beneficiary under said 'certificate the sum of $250 in the event of the insured’s death within a year from the date, of said application from any of the diseases specified therein, or from any ailment which existed when -said application was made. Appellant therein assumes that the insured may die within a year from one of the ailments specified, or from some ailment which existed at the time said application was made, and therein obligates itself to pay his beneficiary under said certificate, not the face amount of the policy, the sum of $1,000 but one-fourth thereof, $250, the amount for which appellee sought recovery herein.

The above quoted paragraphs 15 and 16, if construed as appellant contends, that 'if insured was not in good health at the time the certificate of insurance was delivered to him then the certificate would be null and void, are inconsistent with and constitute a repudiation of the unconditional promise made in said paragraph 4, although the disease from which the insured died, cancer, is definitely included in the enumerated diseases of said paragraph 4.

Considering said certificate of insurance as a whole, and reconciling paragraphs 4, 15 and 16, the certificate must be interpreted as providing that if the insured died within one year from any of the specified ailments or from an ailment which existed when said application was made, his beneficiary would receive only one-fourth of the face amount of the certificate, since under the above authorities the provisions of said paragraphs 15 and 16 can have no application when in conflict with said paragraph 4.

The judgment herein in favor of appellee having been rendered by the court upon conflicting testimony, in the absence of findings of fact, this court must assume that all other facts, alleged and necessary to support the judgment, were found by the trial court upon sufficient evidence. Miller v. Texas General Agency Co., Tex.Civ.App., 141 S.W.2d 441; Kinney v. Johnson et al., Tex.Civ.App., 135 S.W.2d 773; Massachusetts Bonding & Ins. Co. v. Pittsburg Pipe Line & Supply Co., Tex.Civ.App., 135 S.W.2d 818.

It follows from above conclusions that the judgment of the trial court should be in all things affirmed; it is so ordered.

Affirmed.