author: SMEDLEY, Commissioner.

text:
    DUHIG et al. v. PEAVY-MOORE LUMBER CO., Inc.
    Supreme Court of Texas.
    Oct. 16, 1940.
    Strong, Moore & Strong, of Beaumont,, and Oscar C. Dancy, Jr., and K. W. Stephenson, both of Orange, for plaintiffs in error Duhig et al.
    A. M. Huffman, of Beaumont, for defendant in error Lumber Co.
    Fulbright, Crooker & Freeman, C. A. Leddy, Leon Jaworski, and Baker, Botts,. Andrews & Wharton, all of Houston, amici curiae.
   SMEDLEY, Commissioner.

Through conveyance from the executor of the estate of Alexander Gilmer, deceased, W. J. Duhig became the owner of the Josiah Jordan survey in Orange County, subject however, to reservation, by the grantor of an undivided one-half interest in the minerals. Thereafter Du-hig conveyed the survey to Miller-Link Lumber Company, and in the deed it was-agreed and stipulated that the grantor retained an undivided one-half interest in all of the mineral rights or minerals, in and on the land. Peavy-Moore Lumber Company became the owner of whatever title and estate Miller-Link Lumber Company acquired by the deed from Duhig in 574⅜ acres of the said survey.

The suit is by defendant in error, Pea-vy-Moore Lumber Company, against plaintiffs in error, Mrs. W. J. Duhig and others, who claim under W. J. Duhig, for the title and possession of the 574⅜. acres in the Jordan survey. The trial court’s judgment was that the plaintiff, Peavy-Moore Lumber Company, recover .the title and possession' of the land, except all minerals and mineral rights therein, and that as to the minerals and mineral rights, it take nothing against the defendants. On appeal by Peavy-Moore Lumber Company, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of that company. 119 S.W.2d 688.

The ownership by Gilmer’s estate, and its assignees of an undivided one-half interest in the minerals in the land through the reservation in the first deed, which was duly recorded, is admitted by the parties. Plaintiffs in error, Mrs. Du-hig and others, make no claim of title to the surface estate, but their contention, sustained by the trial court and denied by the Court of Civil Appeals, is that W. J. Duhig, their predecessor, reserved for himself in his conveyance of the land to Miller-Link Lumber Company the remaining undivided one-half interest in the minerals. Defendant in •error, Peavy-Moore Lumber Company, takes the position that the deed last referred to did not reserve to or for the grantor such remaining one-half interest in the minerals, but that it in effect excepted only the one-half interest that had theretofore been reserved by Gilmer’s estate and invested the grantee with title to the surface estate and an undivided one-half interest in the minerals.

The deed from W. J. Duhig to Miller-Link Lumber Company is a general warranty deed, describing the property conveyed as that certain tract or parcel of •land in Orange County, Texas, known as the Josiah Jordan Survey, further identifying the land by survey and certificate •number and giving a description by metes and bounds. After the metes and bounds the following matter of description is added: “* * * and being the same tract of land formerly owned by the Talbot-Duhig Lumber Company, and after the dissolution of said company, conveyed to W. J. Duhig by B. M. Talbot”. After the habendum and the clause of general warranty. and constituting the last paragraph in the deed, appears the following: “But it is expressly agreed and stipulated that the grantor herein -retains an undivided one-half interest in and to all mineral rights or minerals of whatever description in the land.”

We cannot agree with plaintiffs in error’s contention that the granting paragraph of the deed purports to convey only the surface estate and an undivided one-half interest in the minerals. It is our opinion that the statement in the deed, that the land described is the same tract as that formerly owned by Talbot-Duhig Lumber Company and conveyed to Duhig by Talbot, is not intended to define or qualify the estate or interest conveyed but that it is inserted to further identify the tract or area described by metes and bounds. The deed, of course, does not actually convey what the grantor does not own. Richardson v. Levi, 67 Tex. 359, 365, 3 S.W. 444.-. But the granting clause in this deed describes what is conveyed as the tract or parcel of land known as the Jordan survey. This description includes the minerals, as well as the surface, and thus the granting clause purports to convey both' the surface estate and all of the mineral estate. Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89, 123 A.L.R. 843; Schlittler v. Smith, 128 Tex. 628, 101- S.W.2d 543; Bibb v. Nolan, Tex.Civ.App.,. 6 S.W.2d 156, applica-tion for writ of error refused. Likewise the clause of general warranty has reference to “the said premises”, meaning the land described in the granting clause, and, but for the last paragraph of the deed retaining an undivided interest- in the minerals, would warrant the title to the land including the surface estate and all of the minerals.

The writer believes that the judgment of the Court of Civil Appeals should be affirmed for substantially the same reasons as those set out in the opinion of that court, that is, that the language of the deed as a' whole does not clearly and plainly disclose the intention of the parties, that there be reserved to the grantor Duhig an undivided one-half interest in the minerals in addition to that previously reserved to Gil-mer’s estate, and that when resort is had to established rules of construction and facts taken into consideration which may properly be considered, • it becomes apparent that the,;intention ,of .the- parties to the deed was • to . invest- the grantee with- tit-le to the surface and a one-half interest in the minerals, excepting or withholding from the Operation of the conveyance only the one-half interest theretofore reserved in the deed from Gilmer’s estate to Duhig. It is the court’s opinion, however, that the judgment of the Court of Civil Appeals should be affirmed by the application of a well settled principle of estoppel.

The granting clause of the deed, as has been said, purports to convey to the grantee the land described, that is, the surface estate and all of the mineral estate. The covenant warrants the title to “the said premises”. The last paragraph of the deed retains an undivided one-half interest in the minerals. Thus the deed is so written that the general warranty extends to the full fee simple title to the land except an undivided one-half interest in the minerals.

The language used in the last paragraph of the deed is that “grantpr retains an undivided one-half interest in * * * the minerals”. The word “retain” ordinarily means to hold or keep what one already owns. 54 C.J. p. 738; 37 Words & Phrases, Perm.Ed., p. 510; Websters New International Dictionary. If controlling effect is given to the use of the word “retains”, it follows that the deed reserved to Duhig an undivided one-half interest in the minerals and that the grantee, Miller-Link Lumber Company, acquired by and through the deed only the surface estate. ' We assume that the deed should be given this meaning. When the deed is so interpreted the warranty is breached at the very time of the execution and delivery of the deed, for the deed warrants the title to the surface estate and also to an undivided one-half interest in the minerals. The result is that the grantor has breached his warranty, but that he has and holds in virtue of the deed containing the warranty the very interest, one-half of the minerals, required to remedy the breach. Such state of facts at once suggests the rule as to after-acquired title, which is thus stated in American Jurisprudence: “It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a- lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.” Vol. 19, p. 614, § 16. See also Robinson v. Douthit, 64 Tex. 101; Baldwin v. Root, 90 Tex. 546, 40 S.W. 3; Jacobs v. Robinson, 113 Tex. 231, 254 S.W. 309; Caswell v. Llano Oil Company, 120 Tex. 139, 36 S.W.2d 208; Moore v. Crawford, 130 U.S. 122, 9 S. Ct. 447, 449, 32 L.Ed. 878.

The case last cited quotes from a decision of the Michigan court, Smith v. Williams, 44 Mich. 240, 6 N.W. 662, the following clear statement of the rule and the reasons supporting it: “When one assumes, by his deed, to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered aft-erwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him* the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given.”

In the instant case Duhig did not acquire title to the one-half interest in the minerals after he executed the deed containing the general warranty, but he retained or reserved it in that deed.. Plaintiffs in error, who claim under him, insist that they should be permitted to set up and maintain that title against the suit of defendant in error and to require it to seek redress in a suit for breach of the warranty. What the rule above quoted prohibits is the assertion of title in contradiction or breach of the warranty. If such enforcement of the warranty is a fair and effectual remedy in case of after-acquired title, it is, we believe, equally fair and effectual and also appropriate here.

We recognize the rule that the covenant of general warranty does not enlarge the title conveyed and does not determine the character of the title. Richardson v. Levi, 67 Tex. 359, 365-366, 3 S.W. 444; White v. Frank, 91 Tex. 66, 70, 40 S.W. 962. The decision here made assumes, as has been stated, that Duhig by the deed reserved for himself a one-half interest in the minerals. The covenant is not construed as affecting or impairing the title so reserved. It operates as an estoppel denying to the grantor and those claiming under him the right to set up such title against the grantee and those who claim under it.

For the foregoing reasons, the judgment of the Court. of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    TRI-STATE ASS’N OF CREDIT MEN v. HINSON.
    No. 7461.
    Supreme Court of Texas.
    Oct. 5, 1938.
    David J. Smith, of El Paso, for plaintiff in error.
    Mae M. Ament, of Alpine, for defendant in error.
   GERMAN, Commissioner.

This suit was filed in the District Court of El Paso County by Tri-State Association of Credit Men, a corporation, against W. P. Hinson. The parties will be designated as in the trial court.

Plaintiff for cause of action pleaded that it was owner by assignment of a note executed by defendant May 19, 1932, payable to Pasotex Petroleum Company. This note was payable on demand, and at the date of filing of original petition was subject to the bar of limitation. Anticipating a plea of limitation, plaintiff set out certain correspondence which it alleged constituted an acknowledgment of the justness of the debt and was sufficient to prevent the bar of limitation. Defendant answered by a general demurrer, a special exception, and a general denial. The special exception to the petition was “that it appears therefrom, despite the letter from defendant, relied upon by defendant to toll the statute of limitations, that plaintiff’s action, as therein stated,' accrued more than four years before the commencement of this suit and that same is barred by limitation.”

The' case was tried by the Court without a jury. The judgment makes no mention of any action concerning the special exception urged by defendant. It recites that after considering the pleadings, the evidence and arguments of counsel the court is of the opinion “that the plaintiff’s cause of action is barred by the four years statute of limitations pleaded by defendant as a defense to said cause of action, and that the defendant is, therefore, entitled to judgment.” This judgment was affirmed by the Court of Civil Appeals. 117 S.W.2d 158.

In the last analysis, the only proposition relied upon by plaintiff here is that there was no pleading to support the judgment of the court, in that defendant did not specially plead limitation in bar, but only by way of special exception, which was not acted upon, and was therefore waived.

The .trial court filed findings of fact and conclusions of law. In both the findings of fact and conclusions of law it is stated that plaintiff’s cause of action was founded on the letter of September 11, 1936, and not upon the note. The court further found that for several reasons the letter mentioned was not sufficient ■ as an acknowledgment of the justness of the debt and was not sufficient to toll the statute of limitation. There is, however, an apparent inconsistency in the findings. It canno't be contended that if the letter was. sufficient to create a new cause of action that limitation would have applied, even if pleaded. Manifestly what the trial court intended to find was that the principal controversy was over the sufficiency of the letter to toll the statute of limitations; and as it was not sufficient for that purpose, then the cause of action founded on the note was barred. This is the only theory upon which the recital in the judgment to the effect that the cause of action was barred by the four years’ statute can be given any meaning.

This brings us to the proposition as to whether or not there was a plea of limitation' filed. As before stated, the only plea shown in the record was in the form of a special exception. The record shows no action whatever with reference to this special exception. It is a familiar rule that a special exception, hot shown by the record to have been called to the attention of the court and acted upon, is waived. Besides, if this special exception had been called to the attention of the court same should have been overruled. The pleading may have shown on its face that the note within itself was barred, but the additional allegation set up a situation which may have relieved it from the bar. Obviously, the pleading as a whole did not show affirmatively that the cause of action was barred. Grounds v. Sloan, 73 Tex. 662, 11 S.W. 898; Braddock v. Brockman, Tex. Civ.App., 49 S.W.2d 908. For this reason the case became one where it was peculiarly fitting to specially plead limitation. The special exception not being sufficient to constitute a plea of limitation, it necessarily remains true that none was filed, and judgment could be properly entered upon the original note. Gathright v. Wheat, 70 Tex. 740, 9 S.W. 76; Garcia v. Yzaguirre, Tex. Com.App., 213 S.W. 236, 237.

Defendant apparently recognizes that the exception was not a sufficient plea as required by the statute, but strongly relies upon a finding of the trial court as follows: “This case was tried on the assumption that defendant had plead the four years statute of limitations in bar. Such a pleading does not, at the present time, appear in the record, and same, if such there ever was, was not filed with the Clerk of the Court.” While this is designated a “conclusion of law,” it manifestly is not such. Section 4 of Article 1997 provides that pleadings in civil suits in the district court shall “be in writing, signed by the party or his attorney and be filed with the clerk.” Article 5540 provides as follows: “The law of limitation shall not be available in any suit unless it be specifically set forth by the party who in his answer invokes it as a defense.” In light of these statutes we think that the defense of limitation should appear by the record to have been actually filed, and disposition of the case cannot be controlled by a mere declaration that the parties tried the case on an “assumption” that limitation had been pleaded.

Nothing was pleaded by defendant which would avoid the binding effect of the note of May 19, 1932. It follows, therefore, that judgment should have been rendered in favor of plaintiff on same.

The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    RULAND et ux. v. LEY.
    No. 1833—7533.
    Commission of Appeals of Texas, Section B.
    Feb. 15, 1939.
    Gaius G. Gannon and Baker, Botts, Andrews & Wharton, all of Houston, for plaintiffs in error.
    Lewis Fogle, of Houston, for defendant in error.
   TAYLOR, Commissioner.

E. V. Ley on May 27, 1930, filed suit against H. F. Ruland and wife. The suit had been pending on the docket for a little more than a year when it was dismissed by the court for want of prosecution early (July 10, 1931) in the July-December, 1931, term of court. The dismissal was without fault on the part of plaintiff or his attorney. During the succeeding term of court, some six months after the dismissal occurred (January 17, 1932), plaintiff’s attorney learned of it. Instead of moving promptly to have the case reinstated he waited nearly four months, 110 days to be exact, before taking steps to that end. On May 6, 1932, he filed a suit in the nature of a bill of review praying for its reinstatement. No wrongdoing on the part of defendants in the matter of the dismissal was alleged or claimed by plaintiff. A jury was empaneled to hear the case. Upon completion of plaintiff’s evidence on the whole case the court instructed a verdict in favor of defendants.

The trial court, after entry of judgment in defendants’ favor, filed, upon request of plaintiff, its findings of fact and conclusion of law. The material facts upon which the .court acted in instructing the verdict and entering judgment,for defendants are, according to its findings, the facts above stated, together with those which may be deduced from the following testimony of plaintiff’s attorney:

“Q. Well, you haven’t told us of any reason why, when you learned of the dismissal, you did not file your suit to set it aside sooner — any reason for it; were you ill or in the hospital, or something? A. No sir, I was not in the hospital, I had other things that I was tending to that — unfortunately I am not able to do everything on the day I would like to do it; there were other things that I was tending to and I had a very definite — and still have a very definite — idea as to what the la.w is in regard to the time in which it is required to be filed.
* ⅜ *
“Q. You thought that it was not necessary to file it at any time sooner than four years from July 10, 1931, didn’t you? A. Yes, but still I did not wait the four years.
* * *
“Q. You don’t know, then, why it was that it was not filed sooner, precisely? A. No, except that I filed it as soon as I conveniently could.
“Q. As soon as it was convenient for you to do it? A. As soon as I conveniently could.”
The trial court concluded as a matter of law, in effect, that plaintiff “was altogether lacking in diligence in seeking a reinstatement of the case * *

Upon appeal by plaintiff the Court of Civil Appeals reversed and remanded the cause (123 S.W.2d 390, 391) under the view that “since there were neither allegations nor proof of any injury” to defendants as a result of the delay in moving to reinstate the case, sufficient diligence was shown by plaintiff to warrant its reinstatement.

Writ of error was granted upon defendants’ application, on the assignment urging that plaintiff, “having delayed, without explanation or excuse for a period of 110 days to seek reinstatement, is without equity and the court below properly directed a verdict against him.”

The assignment is sustained. The cases cited by the Court of Civil Appeals in support of its holding do not determine the question here' presented; that is, whether diligence on the part of a plaintiff in proceeding under article 5529, R.S.1925, to obtain relief from an order of dismissal for want of prosecution, discovered after expiration of the term of court at which entered; is an indispensable element of his procedure. They are cases in which the review sought has to do with setting aside a final judgment on the merits, usually predicated upon estoppel for fraud, or some other equitable consideration growing out of- a wrongful judgment involving substantive rights; that is, some equitable ground that has wrought a change in the position of the parties. Certainly they are not decisive of the precise question just stated. Nor does the case of Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178, cited by plaintiff in supplemental argument herein support his contentions. It was a fact case in which there was evidence to support the trial court’s findings upon the issues of fraud and limitations.

It was not necessary for defendants to establish affirmatively that they were injured by a delay they did not cause. They were entitled at the hands of the court, as litigants, to as speedy a determination of the controversy between them and the plaintiff as was reasonably possible under all of the circumstances. Plaintiff owed to them as well as to the court, to the end it be not retarded from functioning properly, to act with reasonable diligence in moving to set aside the order of dismissal. The dismissal of the case for want of prosecution, even though without fault on the part of plaintiff, did not absolve him after its discovery, from diligence with respect to the future conduct of the litigation, for four years or for four months. As a supplicant in equity plaintiff owed the equitable duty to defendants, as well as an absolute duty to the court, to do nothing in the prosecution of his case that would impede the processes of the court. In order to show himself entitled to have the.order of dismissal set aside, he must have shown that he was reasonably diligent to seek a reinstatement of the case as soon as he learned it had been dismissed for want of prosecution. Osborn v. Younger, Tex. Com.App., 235 S.W. 558.

It is apparent from the testimony set out above that counsel awaited his convenience in filing his petition, and that he did so under the belief that he had an absolute right for four years from the date of dismissal within which to move for a reinstatement of his cause. At any rate he points to no specific fact as' a reason for not taking steps sooner to continue the prosecution of his cause.

We find in the record no evidence of diligence. The trial court correctly concluded that it appeared from the evidence that plaintiff was altogether lacking in diligence; and that the unexplained lapse of nearly four months between discovery of the dismissal and the filing of the suit to set it aside, required that the relief sought by way of a bill of review after such lapse, be denied. Otherwise an absolute right is recognized in plaintiff, upon the mere circumstance of his discovering after the expiration of the term the dismissal of his case for want of prosecution, to retain for four years after dismissal, and to thereafter pursue, any advantage thereby accruing to him over his adversaries. The trial court’s judgment for defendants is correct.

The Court of Civil Appeals erred in reversing and remanding the cause. Its judgment is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    MEEK v. WHEELER COUNTY et al.
    No. 7571.
    Commission of Appeals of Texas, Section A.
    Nov. 27, 1940.
    Reynolds & Heare, of Shamrock, for plaintiff in error.
    Sanders & Scott and Howard F. Saunders, all of Amarillo, and Homer Moss, Co. Atty., of Wheeler, for defendants in error.
   HARVEY, Commissioner.

In this case the Court of Civil Appeals has affirmed the judgment rendered by the trial court in favor of the defendants in error. The plaintiff in error, C. J. Meek, has been granted the writ of error. In affirming the judgment of the trial court, the Court of Civil Appeals, speaking through Associate Justice Folley, rendered an opinion which is reported in 125 S.W.2d 331. The opinion is found to be correct and we approve it. There is no necessity for us to write further on the subject. The judgment of the Court of Civil Appeals, affirming the judgment of the trial court, is affirmed.

PER CURIAM.

We approve the opinion of the Court of Civil Appeals in this case as recommended by the Commission of Appeals, with the following statement:

We think the Court of Civil Appeals was correct in holding that Senate Bill No. 568, Ch. 174, p. 355, Special Laws, 42d Legislature, 1931, was repealed by Senate Bill No. 209, Ch. 220, page 734, Acts 43d Legislature, 1933.

Senate Bill No. 568, omitting formal parts, reads as follows:

“Section 1. In all counties having a population of not less than 15,550, and not more than 15,800 according to the last available Federal Census and each available Federal Census thereafter, all officers shall be entitled to receive the fees earned by their respective offices in accordance with the provisions of the Maximum Fee Bill; provided, however, that in such counties the maximum amount of fees which may be retained, including all excess fees, shall be Six Thousand ($6,000.00) Dollars for each officer, .whose office earns sufficient fees-to pay this amount. Each officer earning fees in excess of Six Thousand ($6,000.00) Dollars shall make disposition of such excess in accordance with the provisions of the Maximum Fee Bill. All officers in counties hereby affected shall be entitled to deputies and assistants in the manner authorized in the Maximum Fee Bill.”

In approving the foregoing opinion of the Court of Civil Appeals we do not intimate that we think the above-quoted Act of 1931 is constitutional.


author: HAWKINS, Presiding Judge.

text:
    Ex parte CASCIO.
    No. 21375.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    Shead & Smith, of Longview, and H. R. Bishop, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Relator was charged by indictment with burglary and being an habitual criminal. His bond was set at $20,000. In this habeas corpus proceeding he sought to have the amount of bail reduced, and it was by order of the trial court reduced to $10,000. Relator appealed, taking the position here that the amount of bail last mentioned is unreasonable.

All this court knows about the charge against relator is that it was agreed that relator had been indicted for burglary and as being -an habitual criminal. The indictment is not before us.

Before the indictment was returned relator made a bond in- the sum of $2,500 which was not approved because of defect in form. The sureties seemed to be satisfactory. After the indictment was returned alleging that relator was an habitual criminal his bond was fixed at $20,000. All the evidence we have in regard to bail is that his attorney made an effort to secure bail in the sum mentioned and failed, and that if bail was reduced to $2,500 relator could make it. No effort was made to furnish bail in the sum of $10,000, as finally fixed by the trial court. We find no evidence as to relator’s financial status or worth, or that of any of his sureties or friends who might sign his bond.

Where bail is reduced upon habeas corpus hearing it is now well established that before complaint can be urged at the amount so fixed accused must make an effort to furnish bail in said amount, and if unsuccessful the proper procedure would be to file a motion before the court showing his efforts to make-the bond and his failure to do so, and asking for a further reduction. See Ex parte Thomas, 127 Tex.Cr.R. 243, 75 S.W.2d 681; Ex parte Brooks, 127 S.W. 535, 78 S.W.2d 183; Ex parte McDaniel, 96 Tex.Cr.R. 539, 258 S.W. 1057; Ex parte Burleson, 133 Tex.Cr.R. 75, 109 S.W.2d 200. The evidence before us shows only that relator could not make a $20,000 bond, but could make a $2,500 bond. It is not even shown that the same sureties who signed the bond for the latter amount would not sign the $10,000 bond; as far as the evidence goes it is to show that they would make a $2,500 bond.

When reduced to its last analysis the proposition here urged is that we should hold as a matter of law that to require bail in the sum of $10,000 is unreasonable. On the meager showing in the present record we think it is asking this court to go too far. The ability of accused to make bond is not alone controlling, if so, many unfortunate and friendless defendants would have to be released on nominal bonds although charged with the most serious offenses. The. rules to be observed in fixing the amount of bail are stated in Art. 281, C.C.P., as follows:

’ “ * * * The amount of bail to. be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed'are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

The principles thus stated have been given frequent application. See Ex parte Turner, 119 Tex.Cr.R. 151, 45 S.W.2d 1017; Ex parte Nelson, 125 Tex.Cr.R. 439, 69 S.W.2d 126; Ex parte Jones, 107 Tex. Cr.R. 438, 296 S.W. 886; Ex parte Burleson, 133 Tex.Cr.R. 75, 109 S.W.2d 200. Taking into consideration the “nature of the offense” necessarily involves the punishment permitted under the law. In the present case the agreement upon the.habeas corpus hearing shows that in addition to charging relator with burglary it was also charged that he was an habitual criminal. If the charges thus made were supported by proof, the jury had no option in regard to the .punishment to be -assessed. The statute, Art. 63, P.C., fixes it absolutely at imprisonment in the penitentiary for life. The trial court could properly take that into consideration in fixing bail at an amount sufficiently high to give “reasonable assurance” that relator would be present in court to answer the charge in the indictment.

Under the showing in the present record we feel unauthorized to disturb the' judgment of the trial court, and same is affirmed.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    KNOX v. STATE.
    No. 21243.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Rehearing Denied Nov. 20, 1940.
    W. C. Dowdy,‘of McKinney, for appellant.
    Lloyd W. Dávidson, State’s Atty., of Austin, for the State.-
   GRAVES, Judge.

Upon appellant’s plea of guilty of the offense of driving an automobile upon a public highway while intoxicated, his punishment was assessed by the jury at a fine of fifty dollars and twenty days’ confinement in the county jail.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The motion for rehearing filed in this cause complains that the information charges no offense against the law. Appellant has cited no authorities upon which he relies and we are unable to agree with his conclusion and we find in it no question which calls for any discussion.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    DIXON v. STATE.
    No. 21139.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Rehearing Denied Nov. 27, 1940.
    Henry Taylor, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in Mills County on indictment charging that he had received and concealed certain personal property of the value of $50 which had been stolen from Wilbur Waggoner. He is alleged to have received the same from Hugh Kennedy and Harrison White. The injured party operated a filling station in Center City. His place was burglarized on May 9, 1939, at about three or four o’clock in the morning. The next day the property taken was recovered at some place in a pasture belonging to appellant and “back of his house”, but the distance is not given except that it was farther than 600 yards.

The state relies on the testimony of Harrison White, who was an accomplice, for the purpose of connecting appellant with the offense charged against him. The only corroborating evidence which could be relied upon is the circumstance that the property was found on his premises. It is not shown, however, that the appellant knew anything about the property being there except by the testimony of the accomplice witness, who, likewise, had testified that he and his companion placed it there at a late hour during the night and only a few hours before it was discovered. When the property was discovered appellant was in his field plowing and not shown to be anywhere near the property.

We consider the circumstances .insufficient corroboration of the evidence of the accomplice to support a conviction. The location of the property on his premises is not shown to be near his home, and there is no indication that appellant had any knowledge it was there, except the evidence of the accomplice.

Inasmuch as the testimony of the witness accounted for the property being there, and because it is not shown that the appellant knew it was there, it was not incumbent upon appellant to explain it. Riley v. State, Tex.Cr.App., 139 S.W.2d 802, and authorities there discussed.

The case is reversed and remanded for a new trial.

On State’s Motion for Rehearing.

HAWKINS, Presiding Judge.

Through the Hon. James K. Evetts, District Attorney, the State has filed its motion for a rehearing which was very ably and earnestly presented in oral argument by the District Attorney.

It is his contention that the facts testified to by the non-accomplice witnesses sufficiently corroborate the accomplice to meet the requirement of the law. Such contention challenged our attention and has caused us to again critically examine the record before us, and after having done so, we remain of the opinion that the corroboration is not sufficient.

The motion for rehearing is overruled.


author: KRUEGER, Commissioner.

text:
    ADAMS v. STATE.
    No. 21269.
    Court of Criminal Appeals of Texas.
    Nov. 27, 1940.
    Lincoln & Harris, of Texarkana, and George F. Edwardes, of Texarkana, Ark., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Commissioner.

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

Appellant’s first complaint is that the evidence is insufficient to sustain his conviction of an assault with intent to murder.

The record shows that about 2:30 A. M. on the night in question appellant came to Poulos’ restaurant and went to sleep with his head resting on the counter. Roulos awakened him and asked him to go home. Appellant left, went to another restaurant, procured a steak knife with an iron handle and a blade seven inches long (being referred to by some of the witnesses as a “case knife”), which he had sharpened; and then he returned to Poulos’ place of business, went behind the counter and without any cause, began to cut Poulos about the head, face and neck. A negro cook, who heard the disturbance, interceded in behalf of Poulos, and when appellant was in the act of leaving the cafe, Poulos struck him on the head with a small iron pipe. In the meantime some of the patrons of the cafe had summoned the officers who took appellant in charge. Poulos was taken to a hospital where he received medical treatment. It required twenty-three stitches to sew up his wounds.

To hold that the evidence is insufficient to sustain the conviction would be tantamount to holding, as a matter of law, that the knife in question, in the hands of an able-bodied man twenty-seven years of age, was not a deadly weapon in the manner in which it was used. It is true that the court, without defining a deadly weapon in his charge, instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that appellant, with a deadly weapon, to-wit, a knife, made an assault upon Poulos with the intent to commit murder, to find him guilty. Since no objection was made to this particular charge, we may assume that the appellant was satisfied with the instruction.

It appears from the State’s testimony that the assault was unprovoked; that it was made with a premeditated design and with a weapon calculated to produce death or serious bodily injury. The jury, to whom the issue of appellant’s intent was submitted, determined that issue against him and we do not feel that, under the peculiar facts of this case, we would be justified in disturbing their finding.

We note that the court instructed the jury relative to the law of an assault to murder with and without malice, on aggravated and simple assault, self-defense, the suspension of sentence and on insanity produced by the voluntary use of ardent spirits.

Appellant’s bills of exception Nos. 1 to 12, both inclusive, complain of the court’s action in declining to submit his special requested instructions. We have examined all of them and find that the subject matter contained in a number of the requested instructions was embraced in the court’s main charge. To have given them would have been but a repetition of the legal principles enunciated by the court. Some of the requested instructions were misdirections as to the law. For instance, appellant requested an instruction to the effect that if the jury should believe from the evidence, or have a reasonable doubt thereof,, that due to intoxication the defendant did not have a specific intent to kill Jimmie Poulos at the very time he made the assault, if he did so, then they will not find him guilty of an assault to murder. This is not the law. Article 36, Vernon’s Ann. Tex.P.C., reads as follows:

“Neither intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits shall constitute any excuse for the commission of crime. Evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried. When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquor, the judge shall charge the jury in accordance with the provisions of this article.”

It is obvious from the article of the statute quoted that mere intoxication from the recent use of ardent spirits will not, of itself, in any case excuse the commission of an offense against the laws of this state nor mitigate the penalty. Temporary insanity produced by the use of such liquors is evidence which may be intror duced in mitigation of the penalty but in no event may it be used to excuse or justify the offense. See Little v. State, 42 Tex.Cr.R. 551, 553, 61 S.W. 483; Lyle v. State, 31 Tex.Cr.R. 103, 113, 19 S.W. 903.

Bill of exception No. 13 reflects the following occurrence: While Levi Lollis was testifying for the State and after he had stated that on the night in question and a very short time prior to the difficulty, appellant appeared at the cafe where he' was employed as a dish-washer and asked Rim (Lollis) to sharpen a steel-handled case knife for him; that the request was complied with and appellant then left, then the District Attorney drew from the inside pocket of his coat a knife and asked Lollis the following question: “If I were to show you the knife, do you think you would know whether it was the knife you sharpened or not?” The witness replied in the affirmative. Appellant objected to the action of the District Attorney in drawing the knife from his pocket and exhibiting it to the witness upon the ground that there was no identification of the knife; that the testimony does not identify it; that it was leading and suggestive. The objections were ■overruled and the witness answered: “It looks like the knife.” Thereupon appellant asked the court to strike out said testimony, which request was also refused, whereupon he then and there excepted to the ruling of the court. This testimony was clearly admissible as identifying the particular knife which appellant had sharpened by Lollis. It showed the purpose of appellant in having an instrument capable of inflicting death or serious bodily injury. A sharp knife was more likely to produce death than a dull one. It showed intent and an evil design on the part of appellant. The knife was also identified by the injured party and the officer who arrested appellant; at least the knife exhibited was the same kind as that used by appellant in making the assault. We therefore overrule appellant’s contention.

What we have said with reference to bill of exception No. 13 also applies to bills of exception Nos. 14, 15, 16 and 17, because each of said bills complains of the action of the District Attorney in exhibiting the knife to each of the various witnesses and having them identify it as the one which appellant used in the commission of the alleged offense, or Similar to the one which he used.

Bill of exception No. 18 complains of the following remark by the District Attorney: “Gentlemen of the Jury: Mr, Lincoln has had a change of heart. When he was District Attorney and I was County Attorney of Cass County, I tried many cases with him; and during all that time he was asking juries to send men to the penitentiary, and I never did hear him tell a jury about the horrors of the penitentiary. This is the first case I ever heard him tell a jury about the horrors of the penitentiary, and I have heard him try many a case.”

This bill is qualified by the court who certifies that Mr. Lincoln, one of the attorneys for defendant, in his closing argument graphically pictured the horrors of the penitentiary, and the argument complained of was in response thereto, was invited by appellant’s counsel and was justified. In our judgment the bill, as qualified, fails to reflect reversible error.

In his motion for a new trial appellant questions the sufficiency of the verdict to authorize the court in sentencing him to confinement in the state penitentiary for a term of two years in that the jury failed to state whether they found him guilty of an assault to murder with or without malice. The indictment charged that appellant, with malice aforethought, made an assault with intent then and there to murder Jimmie Poulos. The verdict reads as follows: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at two (2) years in the State Penitentiary.”

In the case of Onderdonck v. State, Tex. Cr.App., 139 S.W.2d 589, we held a verdict in the same language tq be sufficient because the jury made the charging part in the indictment a part of its verdict by reference thereto. See Lewis v. State, 86 Tex.Cr.R. 135, 217 S.W. 695, and cases there cited; also Davis v. State, 110 Tex.Cr.R. 605, 10 S.W.2d 116. In the case of Bryant v. State, 54 Tex.Cr.R. 65, 111 S.W. 1009, 1010, Judge Ramsey, speaking for the court, said: “We approve the holding of this court, not infrequently made, that verdicts are to have a reasonable intendment and construction, and are not to be avoided, unless from necessity originating from doubt of their import or immateriality of the issue found, or their manifest tendency to work injustice, or their failure to contain that which some express provision of the statute requires they should contain.”

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

The judgment is affirmed.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    GREEN v. STATE.
    No. 21123.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    On Motion to Reinstate Appeal Nov. 20, 1940.
    Carpenter & Boling, of Lubbock, for appellant.
    Edgar E. Payne, Co. Atty., of Level-land, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from the county court of Hockley County, Texas, where the appellant was convicted of transporting intoxicating liquor. The transcript does not contain a caption showing the date of the beginning of the term of court and the end thereof. It does state that the court was, “begun and holden * * * in February 1940”. The judgment in the case is' dated January 15, 1940.

In view of the condition of the record the appeal is dismissed. 4 Tex.Jur. 323, and authorities there cited.

On Motion to Reinstate Appeal.

The appeal is from a fine of $100 assessed by the county court of Hockley County on a charge of violation of the local option law. Supplemental transcript having been filed in this cause and proper procedure taken, the motion to reinstate the appeal is granted and the order dismissing the same is set aside.

The principal question which appellant seeks to raise challenges the existence of a local option law prohibiting the sale of intoxicating liquors in Hockley County. No election has been held in that county prohibiting the sale of intoxicating liquor since its organization, but reliance is had by the state upon the fact that during the time it was attached to Lubbock County and on May 28, 1910, an election was held in Lubbock County prohibiting the sale of intoxicating liquors in Lubbock County. It is the contention of the state that this-election extends to and includes Hockley County.

The residents of an unorganized county which was attached to another for such purposes had a right to vote for the election of certain officials. It does not appear that it was mandatory that local option elections should be submitted to the voters of both counties in order to adopt it by and in the administering county. We are of the opinion that Lubbock County could have held an election within its own bounds without,- in any manner, affecting any territory attached to it for judicial purposes. So far as the record in this case is concerned, that is what occurred.

Allegation is made in the'complaint and information that the election was held in Lubbock County. There is no allegation that it extended to and included the territory now embraced in Hockley County. The question sought to be raised in this appeal both by the state and the appellant in which they ask this court to determine whether or not an election ordered and properly held in Lubbock County could and did affect the then unorganized Hockley County so as to make effective a local option law in that county at the present time, is not before us. There is no allegation to that effect and no proof by which we may know whether or not citizens of Hockley County participated in such election. Until that question is before us we express no opinion as to it.

Because the complaint and information does not allege that an election was held embracing the territory now included in Hockley County, and because there is no proof to that effect and none may be introduced on the allegations made, the judgment of the trial court is reversed and the prosecution ordered dismissed.


author: CHRISTIAN, Commissioner.

text:
    HUDSON v. STATE.
    No. 21183.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.
    Shead & Smith, of Longview, and Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Commissioner.

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.

It was appellant’s affirmative defense that he played on the table seized by the officers on the same basis as the other players. The court instructed the jury, in part, as follows: “You are further charged, if you find and believe from the evidence that at the time and place alleged in the indictment any game was played, but if you further find and believe that the defendant played on the same basis as the other players in the game, whatever the game may have been; that is, that he was merely one of the players, that he did not at any time keep or exhibit any gaming table or bank for the purpose of obtaining bettors, as those terms are hereinbefore defined, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict not guilty.”

There was no proof adduced upon the trial that certain chairs which were placed in the courtroom during the trial had been in appellant’s garage. There was no proof before the jury that appellant had theretofore been engaged in bookmaking. Again, the evidence adduced upon the trial failed to show that appellant had run a gambling house at a place different from that raided by the officers. In his motion for new trial, appellant alleged that the jury, after retiring to deliberate upon the case, received other testimony. The specific complaint was that, before the verdict was reached, one of the jurors stated in the presence and hearing of the other jurors that the chairs which had been exhibited in the courtroom had been in appellant’s barn or garage; that appellant had been running a “bookie” or gambling business on the south side in Longview. The proof supporting these averments in the motion for new trial was uncontro-verted. As already pointed out, there was no proof adduced during the progress of the trial which would have warranted any juror in giving such information to his fellow jurors. The chairs exhibited to the jury during the trial had been found by the officers on the premises where the state contended that appellant was exhibiting a gaming table and bank. Hence the statement of the juror that the chairs had been in appellant’s garage gave support to the theory of the state that appellant had been guilty of exhibiting the table and bank, and that he was not a mere player participating in the games on the same basis as other players. The statement that appellant theretofore, at another place, ran a “bookie” or gambling business was obviously prejudicial.

It is observed that the jury took several ballots before determining that appellant was guilty.

We are of opinion that the court fell into- error in refusing to grant the motion for new trial. Subdivision 7 of Article 753, C.C.P., provides that a new trial shall be granted in cases of felony where the jury, after having retired to deliberate upon a case, have received other testimony. Information given by one of the jurors to the others is new and other testimony within the meaning of the statute. Holland v. State, 107 Tex.Cr.R. 582, 298 S.W. 898, and authorities cited. Where, after retiring', the jury receive other evidence damaging to the appellant, the presumption of injury obtains. Holland v. State, supra.

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.


text:
    SMITH v. STATE.
    No. 21231.
    Court of Criminal Appeals of Texas.
    Nov. 20, 1940.

      S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Under an indictment charging felony theft appellant was convicted of stealing property under the value of $50, and his punishment was assessed at a fine of $25 and thirty days in the county jail.

The property alleged to have been stolen was two autotruck wheels and two autotruck tires mounted on the wheels. They were taken on the night of September 16, 1939, off a truck belonging to Mr. Sitton, which truck was parked for the night at a place not far from the place of business where the witness Lige Holbrook worked. This witness testified that about 3 o’clock at night on the date named one Slim Versher came to witness’ place of business and asked permission to use the telephone, and called a taxi. Another party was with Versher whom witness did not know. Ollie Thrash responded to the call for a taxi and picked up Versher and appellant. He hauled them to various places and was directed by Versher to stop near the railroad. He and appellant both got out and in about two minutes returned with the wheels and tires and rolled them in the cab. Witness says he inquired if they had stolen them and was told that they were not stolen stuff. At the direction of Versher Thrash drove them about five miles out the San Augustine highway, and both Versher and appellant got out and “rolled the tires out in the woods,” as Thrash testified. He brought the boys back to town and in about an hour they again came to witness and said they wanted to go back to the place where they had left the tires. Witness drove them back out there where both Versher and appellant again got out and rolled the tires back into witness’ cab. Witness then drove the parties back to town and to Sandlin’s parking lot. It was then near 9 o’clock in the morning. Versher talked to Sandlin and sold him the property. One wheel and tire were found on Mr. Sandlin’s truck and the other wheel and tire found at his house, and were turned over by him to the owner.

The trial court submitted to the jury the issue whether Thrash was an accomplice witness. Appellant objected to the issue being submitted to the jury, insisting then by written exception to the charge, and urges here that the court should under Thrash’s own evidence have told the jury as a matter of law that said witness was an accomplice witness. We find that upon cross-examination of Thrash he detailed at length the various trips made by him with Versher and. appellant in his cab on the night in question, and said witness — notwithstanding the suspicious circumstances under which the property was being handled — steadfastly asserted that he did not think the property was stolen until they went back to get it. At this point the witness testified, “I didn’t realize then that they must have been stolen, when they put them out in the woods. When we went back and got them I thought they were stolen.” Even after he reached that belated conclusion he permitted the use of his cab to haul the stolen property around, and aided Versher and appellant in delivering it to a purchaser. It is observed that Sandlin in his evidence fails to put appellant in any active relation to the stolen property. This witness avers that appellant never said a word on either of the two occasions when Versher was trying to sell witness the property, but on the contrary, says appellant on both occasions was on the back seat of the car either asleep or drunk. Thus it appears that any active connection of appellant with the stolen property is shown only by the evidence of Thrash. Under the circumstances here present, we believe the court should have responded to appellant’s exception to the charge and he should have told the jury that the witness Thrash was an accomplice witness as a matter of law. The case of King v. State, 135 Tex.Cr.R. 378, 120 S.W. 2d 590, 592, seems directly in point: “In the •charge the court left it to the jury to determine whether the witness Hamilton was an accomplice. Appellant timely and properly excepted to the charge on the ground that the jury were not instructed that the witness was an accomplice as a matter of law. We are of opinion that the testimony in its entirety shows beyond dispute that the witness was an accomplice. According to his own version, he was interested in the sale of the stolen cow to the extent that he expected to receive at least a dollar from the proceeds of the sale. Knowing that the animal was stolen, he drove appellant and Jobie King to the home of Daniels, no doubt with the hope that a sale would be consummated. He spoke no word to warn Daniels that appellant and his brother were endeavoring to sell him stolen property. In short, he actively aided appellant and Jobie King in their efforts to dispose of a cow he knew to have been stolen. * * * The opinion is expressed that, in failing to respond to appellant’s exception, the trial court fell into reversible error.”

The court charged that if the jury found Thrash to be an accomplice witness they could not convict upon his testimony unless they believed beyond a reasonable doubt that it was true and “connected” the defendant with the commission of the offense charged, and even then they could not convict unless evidence of nonaccomplice witnesses was ■“corroborative of the testimony of Thrash ‘connecting’ the defendant with the Commission of the offense charged, and if you have a reasonable doubt as to the truth of such testimony in case you find that Thrash was an accomplice or have a reasonable doubt thereof, you shall wholly disregard same.”

(a) That part of the charge italicized is unusual, and we think somewhat confusing, and does not conform to approved instructions on the subject of accomplice witnesses, (b) In regard to evidence of nonaccomplice witnesses it is required to “tend to connecf’ an accused with the commission of the offense, and not that it “connects” him with it. In this regard the charge was-more favorable to appellant than he was entitled to. The particular exception addressed to the charge as given was because the court did not tell the jury that the accomplice evidence if true must show that “the defendant is guilty of the offense charged.” It would have been improper for the court to have so charged the jury in this case because the evidence of Thrash, if true, did not show appellant’s guilt of the theft of the wheels and tires. The theft had been accomplished before Thrash came into the picture. Oates v. State, 67 Tex.Cr.R. 488, 149 S.W. 1194, was a case alsq where the accomplice witness did not make a complete case against accused but only “connected” him with the crime charged. The charge in that case has been many times approved except as to the use of the word “alone” as it appears therein, which word should be omitted. See Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890. In the latter case we reviewed the subject and undertook to point out approved charges where the accomplice witness made a complete case against accused, and also where the evidence of the accomplice witness fell short of making a complete case. We cannot add to what was there said. See, also, Anderson v. State, 95 Tex.Cr.R. 346, 254 S.W. 986.

In view of another trial, if the evidence should be substantially as here found, we suggest that in connection with a proper charge on accomplice testimony, the jury should also be told that from all the evidence they must believe beyond a reasonable doubt that appellant was guilty of the theft of the property.

The judgment is reversed and the cause remanded.


text:
    EVANS v. STATE.
    No. 21205.
    Court of Criminal Appeals of Texas..
    Nov. 20, 1940.
    Williford, Williford & Bond, of Fair-field, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted and assessed a fine of $100 by a jury in the county court of Freestone County on a charge of violating the local option law.

The evidence is without dispute in the case that appellant sold to Harold Keeling some whiskey in Freestone County on February 28,' 1940. Keeling was a representative of the Liquor Control Board. It is also without dispute in the case that an election had been properly held, the results declared, published, etc., prohibiting the sale of intoxicating liquor in Freestone County. The complaint and information add an. allegation to the effect that since the adoption of the local option law and the prohibition of the sale of liquor in said county, it had not been legalized by any subsequent election. There is no proof on this allegation.

The chief complaint on appeal is because of the state’s failure to prove that the sale of liquor had' not been properly legalized. In his • brief appellant submits this proposition of law: “Where a person, place or thing necessary to be mentioned in indictment is described with unnecessary particularity, all circumstances of description must be proved.”

We concede the correctness of this proposition of law and adhere to the list of authorities which are cited in the brief, but it is our conclusion that the allegation under discussion in the instant case is not necessary descriptive matter which has been alleged with unnecessary particularity, but rather as defensive matter of which the appellant might have availed himself. In Blaine v. State, 139 S.W.2d page 792, this court passed upon the very question, saying that had there been any question raised relative to such matter, it would have been necessary to submit it as an issue to the jury, citing Branch’s Criminal Law, page 375. The court, however, having before it the orders sufficient to make a prima facie case, was authorized to charge that the local prohibition law was in force and effect.

In Irish v. State, 34 Tex.Cr.R. 130, 29 S.W. 778, Judge Hurt, having the question before him, held that defensive matters must be proved by the party wishing to avail himself of it and that it will be presumed from the entering of the order of the election and prohibiting the sale of intoxicating liquors within the county that all preliminary matters had been favorably passed upon. He applied the same rule as is applied to judgments in civil cases.

It is, therefore, apparent that the allegation to the effect that no election had been held and that the sale of liquor had not been legalized was, from the • standpoint of the state, surplus matter. This distinguishes it from a description of necessary things which are more particularly described than is required. The rule is not the same.

The contention of appellant is overruled, and the judgment of the trial court is affirmed.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    SMITH v. STATE.
    No. 21084.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Rehearing Granted Nov. 13, 1940.
    L. G. Mathews, of Floydada, and W. B. Combest, of Paducah,.for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of one head of cattle. The punishment assessed is confinement in the state penitentiary for a term of two years.

The only question presented to this court for review is the sufficiency of the evidence to justify and sustain the conviction.

Levi Futrell, the self-confessed thief and accomplice in the 'commission of the alleged offense, testified in behalf of the State that on or about the 22nd day of February, 1939, he and the appellant went out to the Matador Ranch and there, without the consent of the owners, took the animal in question. This testimony of itself is not sufficient, under the law, to sustain the conviction. It must be corroborated by other facts and circumstances. Now, let us look at the testimony of the other witnesses and see if it corroborates the accomplice as to the identity of the animal, the theft thereof and tends to connect' appellant therewith.

The testimony introduced by the State, briefly stated, shows that late in the afternoon of February 22, 1939, Randal Tucker, who lived with his parents about one and one-half miles from the highway leading from Paducah to Childress, noticed a car pass his home traveling the road which leads from the highway to the Matador Ranch and the Cee Vee community; that about dark he again noticed the car coming back, going east towards the highway. The car was pulling a trailer in which there was a horse and also a cow or yearling. The witness did not recognize any of the occupants of the car.

The Sheriff of Cottle County testified in substance that a little while before sundown he went out on the Childress Highway and met a car pulling a trailer which contained a horse and a white-face yearling; that appellant was driving the car and Levi Futrell was riding with him; that he turned and followed the car and trailer into town. He saw appellant and Futrell unload the yearling; that he inquired of them where they had gotten it. Futrell told the sheriff that he had purchased the yearling from Corny Thomas at Northfield. The horse in the trailer bore fresh saddle marks on his back. The sheriff then left and returned in about forty minutes. He saw Futrell and the appellant engaged in feeding the animals in the stock pen. The next morning the sheriff, accompanied by some of the managers of the Matador Ranch, made .some investigation and found some tracks of the •same size and tread as those of the trailer. However, they were badly worn. About •one-half mile of the east end of the Matador Ranch they found where a trailer had been pulled up by the side of the road and stopped. They found some hair of a Hereford calf on the grass. They also noticed some medium sized tracks made by a bare-footed horse. While there they heard a cow bawling. They went through the pasture to locate her. They found her and she was traveling. She would go a little ways, stop and bawl and then go on again. They then went after the calf and brought it to the Matador Ranch. They turned the calf out .of the trailer into a herd of some 200 or 300 cattle including the cow. They watched this cow and calf all day to see if it would suck the cow. They rounded up the cow and the calf ■late in the evening and placed the calf in ■one stock pen and the cow in another. The witness claimed that the next morning when they turned the calf into the lot with the cow he saw the calf suck the cow. He stated that Mr. Russell, Mr. Ellis, Mr. Riley and Mr. Felts and his son were present at the time.

Mr. J. E. Russell, who was with the sheriff when making the investigation and experiments, testified that he was there the next morning when the cow and calf were left together. The calf did not suck the cow in the pen. It did not suck until after it had been loaded into the trailer with the cow. The only way he could tell that it was a Matador calf was the fact that the cow let it suck the next day after they were put into the trailer; that he had noticed a few times when cattle were rounded Up close together that a calf would suck the wrong cow.

Mr. Deaton testified that he was present; that he did not see the calf suck the cow but one time, and that was when the cow and the calf were in the trailer.

Mr. Warren testified that he took the cow and calf and placed them in the feeding lot and kept them the rest of the winter; that he saw the calf suck the cow several times.

Commodore Thomas testified that he did not live out at Northfield; that he had never sold any cattle to Levi Futrell or Smoky Smith; that he had a brother living out at Northfield.

Lloyd Thomas testified that he lived at Northfield in Cottle County; that he never at any time sold any cattle to Levi Futrell or Smoky Smith; that there were other Thomases living around Northfield.

There was testimony by several cattle men to the effect that some cows will permit calves other than their own to suck them. There was also testimony given by several witnesses that on the day in question they saw the appellant and Levi Fu-trell on the highway leading from Paducah to Childress; that they had a trailer hitched to their car which contained a horse and that they saw them purchase a white-face bull calf which was unbranded. They saw a man execute a bill of sale to the animal which was witnessed by one of the parties present. A number of witnesses testified to the appellant’s good reputation as a law-abiding citizen.

In order for the State to sustain this conviction it was necessary to establish the theft of the animal. This it sought to do by Levi Futrell, a self-confessed accomplice, but this is not sufficient to justify the conviction, inasmuch as he was an accomplice and had to be corroborated. In our opinion, the corroboration is entirely insufficient to meet the requirements of the law. The State sought to corroborate Futrell by showing that the calf sucked a cow which- belonged to the Matador Ranch. However, the testimony shows that the calf was away from the cow that afternoon, all that night and part of the next morning, and when it was turned into the pasture with the cow, it did not suck her and at no time did they see it suck the cow until she was placed in the trailer with the' calf. There was much testimony to the effect that at times cows will permit calves other than their own to suck them. Consequently, this testimony is of no probative force in seeking to establish the fact that the calf in question belonged to the Matador people. No one could identify the calf, not even the men in charge of the cattle on the Matador Ranch, as belonging to the Matador people. The calf in question was merely an unbranded white-face male, about ten or twelve months old, sometimes known as a maverick.

In volume 41, p. 241, sec. 146 of Tex. Jur., it is said: “The statutory provision (C.C.P.Art. 718) that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed applies in prosecutions for theft. The corpus delicti cannot be established by the uncorroborated testimony of an accomplice. It is also necessary to corroborate the testimony of an accomplice as to the ownership of the stolen property, the taking and the presence of the defendant when the offense’ was committed.”

In the case of Williams v. State, 82 Tex.Cr.R. 215, 199 S.W. 296, this court speaking through Judge Davidson said: “In a case where the ownership of the animal alleged to be stolen is proved only by the uncorroborated testimony of the accomplice, it is not sufficient on the issue of ownership, and therefore insufficient to support the conviction.” See, also, Hanson v. State, 27 Tex.Cr.App. 140, 11 S.W. 37.

When we eliminate the testimony of the accomplice Futrell, what facts have we left to show the theft? Not any except that the alleged stolen calf sucked a cow belonging to the Matador people after they had been placed in the trailer, and not while it was turned into the herd in the pasture and watched all day. Is this sufficient to show that the animal was stolen from the Matador people? We think not. It occurs to us that a calf still sucking a cow when taken away from its mother in the afternoon and kept away from her until the next day and then returned to its mother would immediately run to her and suck her. That is what the sheriff and his companions expected to see when they brought the calf to the ranch and that is why they watched it, but it failed to do what they evidently expected it would do and' what would have been natural for it to do. Consequently, the conduct of the yearling in question has no probative force. See McGoodwin v. State, 134 Tex.Cr.R. 231, 115 S.W.2d 634; Harrison v. State, 117 Tex.Cr.R. 565, 35 S.W.2d 174.

Having reached the conclusion that the accomplice testimony was not sufficiently corroborated, we feel constrained to reverse the .judgment of the trial court.

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.

HAWKINS, Presiding Judge.

The State has filed.a motion for rehearing insisting that we were in error in concluding that the accomplice witness Levi. Futrell was not sufficiently corroborated..

It may be conceded as urged in the-State’s motion that Futrell’s evidence-shows; (1) The identity of the ani-mal in; question as belonging to the Matador Land; & Cattle Co., (2) the theft of the animal,, and (3) that at the time of the theft Fut-rell and appellant were both present and acted together in the commission of the theft.

If the other evidence corroborates the testimony of Futrell on the three particular points mentioned and tends to connect appellant with the theft of said animal,, the State’s motion should be sustained, otherwise it should be overruled.

In determining the sufficiency of the corroborating evidence the same rule should control as is applied in passing upon the sufficiency of the evidence generally to sustain a conviction, that is, regardless of conflicts which are for the jury to settle, the record should be looked to in order to ascertain whether the State’s evidence, if accepted as true, meets the provisions of article 718, C.C.P., which in this case requires that the non-accomplice evidence shall tend to connect appellant with the theft of a Matador Hereford yearling.

We adopt the summarization of the State’s evidence as contained in the State’s motion for rehearing, with one or two minor changes only. The statement of facts supports the conclusions foun'd in the condensed statement.

“At about four o’clock on the afternoon of February 22, 1939, the appellant and Levi Futrell were seen together, leaving the town of Paducah driving a Buick coupe, to which was attached a trailer,, and in the trailer was a horse. They were driving out of town, going north on the Childress road. (S.F. 48.) The road one would have to travel in going from the town of Paducah to the pasture of the Matador Land & Cattle Company is the Childress road going north out of Pa-ducah, this being the same road appellant and Futrell were seen traveling on. To get to the Matador Pasture from the Chil- - dress highway, one would travel a road which leaves the Childress highway at a point some seven miles north of Paducah and goes west passing the home of Randal Tucker at a point one-half. mile before it enters the Matador Ranch, Tucker’s house being one and a half miles off the Childress road. (S.F. 8, 2 and 3.) At about five o’clock, the time not being fixed exactly, on the evening of February 22, 1939, Randal Tucker saw a big coupe towing a trailer with a horse in it coming from the direction of the Childress highway and from the direction of Paducah and going towards the Matador Ranch. (S.F. 3.) He had seen this same car and trailer go by in the same direction on several other occasions. About an hour or an hour and a half after seeing the car towing the trailer with the horse in it going towards the Matador Ranch, the witness Tucker (S.F. 3) observed it coming from the direction of the Matador pasture, and at that time there was in the trailer, in addition to the horse, a reddish yearling. The day was still light enough to enable the witness to see, but he did not make a close observation of the yearling.
“On the same evening, a little before sundown, Mr. C. A. Brooks, Sheriff of Cottle County, accompanied by his deputy, Mr. Wiley Ellis (he being the same person who had observed the appellant and Futrell leaving town in the car with the trailer and horse), drove out of Paducah, going north on the Childress road, which was the same road leading to the Matador pasture, and the same road appellant and Futrell had been seen traveling on, and was, also, the same road going by the Randal Tucker place. (S.F. 4-5 and 8.) At a point about three miles out of Pa-ducah (S.F. 11), Sheriff Brooks and his deputy, Wiley Ellis, met a Buick coupe with a trailer attached, which car was then traveling towards Paducah. The appellant was driving the car, with Levi Fut-rell riding with him, and in the trailer were a horse and a whitefaced, red bull yearling. The Sheriff turned his car, and he and Ellis followed the appellant and Futrell to Paducah and saw these men unload the calf in a corral. (S.F. 5, 6 and 13.) They also saw a horse, which appellant claimed, and which had also been in the trailer with the yearling. They observed this horse carefully, and testified that the horse showed signs of having been ridden recently, as it was sweatty and saddle and bridle marked. (S.F. 6 and 13.) The horse was barefoot and had similar feet to the tracks later found in the Matador pasture. (S.F. 9 and 18.) Appellant claimed the horse as his own. (S.F. 6.) Sheriff Brooks asked where they got the calf. In appellant’s presence, Futrell answered that they got the calf from Corny Thomas at Northfield and stated that they had twenty-five head and were getting them one or two at a time. Appellant was present but said nothing. The Sheriff then made inquiry concerning Corny Thomas at North-field, but could not locate him. (S.F. 7 and 8.) The Sheriff again went to the corral where appellant and Futrell were with the calf and horse, and said to them, ‘Boys, you have got a hot calf and I want to talk to the fellow you got it from.’ Appellant said, ‘Yes.’ (S.F. 7.) Appellant and Futrell were arrested later that same night. (S.F. 8.)
“On the following morning Sheriff Brooks, accompanied by Mr. J. E. Russell, went out to the Matador pasture, following the same road that passed the Tucker place (S.F. 6 and 9) and observed the car tracks, trailer tracks, horse tracks, and other evi-dentiary signs. They saw car, trailer and horse tracks that corresponded with the tracks of the car, horse and trailer of appellant, the one appellant had been driving the evening before when he had the horse and calf in the trailer. (S.F. 9 and 18.) They could tell from evidence on the ground, where the back of the trailer had stopped, and at the same place, found the horse tracks and red hair from a Hereford calf on the ground, and ‘looked like where a calf had been lying down.’ (S.F. 9, 17 and 18.) Sheriff Brooks and Mr. Russell then heard a cow bawling; they got her located; she was traveling, would go a little way, bawl and then move on. (S.F. 10 and 18.) ‘This cow was bawling and she was performing like a mother cow would that had lost her calf would perform.’ (S.F. 19.) Brooks and Russell kept the cow under observation. Cowhands rounded up some two to three hundred head of cattle and this cow that had been observed bawling was thrown with them but still kept under observation. Deputy Ellis and Mr. Reilly, the manager of the Matador Ranch, and others brought the calf from town to the point where Brooks and Russell were watching the bawling cow. The cow which had been bawling and which Russell and Brooks had kept under observation showed that she had not been sucked that day prior to the bringing of the calf to the pasture. (S.F. 12, 13, 15 and 18.) In Mr. Russell’s significant language, 'This cow was bawling and she was performing like a mother cow that had lost her calf would perform.’ After the calf was brought from Paducah to the pasture, it was released near the herd that was being held. It -was a very wild calf. (S.F. 10, 18 and 22.) It ran through the herd 'on the prod’ and 'Very much on the fight;’’ after running through the herd and milling around in it, this calf found the cow that had been bawling, and the cow and the calf both got quiet. Mr. Reilly’s testimony is, ‘She put her nose over on him and went to grazing.’ (S.F. 22.) ‘The calf stayed around and was very uneasy and was watching the men on horseback, but stood by the cow’, (id.) It did not immediately suck the cow but kept watching the cowboys on horseback. The conduct of this cow and calf before their reunion, at the time of meeting and following the meeting is graphically described by the witnesses Brooks, Russell, Reilly and Felts in the idiom of the rangeland. The cow was abundantly identified as a Matador owned cow. (S.F. 16, 19, 23 and 25.) The calf followed the cow. The cattle were allowed to break up, that is, the herd was allowed to separate; and this cow that had been bawling, now quiet, with the wild calf that had been brought out from Paducah and that came out of the trailer that the appellant had been towing behind the car he was driving, and which he had unloaded at the corral in Paducah, also now quiet, following her, left the herd. The calf had not been seen to suck the cow. The cow and calf went into a rough canyon, out of the sight of the observers for a short time. They were brought out of the canyon by Slim Felts, and at that time the cow’s bag showed evidence of having been sucked, the hair around it was wet (S.F. 11, 13, 19 and 23); and the calf appeared ‘contented’, and he and the cow were ‘satisfied together’ and ‘she didn’t do any more bawling’. (S.F. 19-20.) In the language of Slim Felts, who had brought the cow and calf out of the canyon, ‘The cow laid down and the caif stood around a little bit and came around and laid down pretty close to where the cow was. * * ’ * The Matadors owned that cow and she was one of the cows under my particular charge. . * * * I saw that this cow and calf was mated up and there wasn’t any use of going any further, and I turned around and taken them back and put them in the corral and kept them over night. The cow taken that calf and claimed it, and I claim it for the Matadors.’ (S.F. 25.) T saw it suck after we loaded them in the trailer. *, * * The only way I have of telling that was a Matador calf is the fact that this cow let it suck the next day after we put them in the trailer, and the way they met up the day they brought it out there. * * * I couldn’t swear it was a Matador calf until I saw it mate up and saw it suck the cow.’ (S.F. 26.)
“After the cow and calf were brought out of the canyon, and after the cow appeared to have been freshly sucked and the calf contented, they were put in separate pens and so kept the night of February 23, 1939. The next morning the calf was turned in with the cow. Sheriff Brooks and Wiley Ellis testified that it sucked immediately. (S.F. 12, 15 and 16.) The other witnesses did not see the calf suck before it was put in the trailer with the cow, but all observers saw it suck the cow in the trailer. The calf continued to suck this cow for some time while in the feed pens at Russellville camp, to which place they were taken and kept under observation.”

In describing the animal in the trailer with the horse when the parties returned from the direction of the Matador pasture the witness Tucker said “There was a horse and a yearling in the trailer. I mean by yearling a cow brute.” Mr. J. E. Russell, Inspector for the Cattle Raisers Association, testified not only to facts observed by him, but also qualified as an expert. His evidence, in part, is quoted; “From my experience and observation of cattle, an animal that is raised in a large pasture would naturally be wilder than one that is ■raised in a small pasture. The calf that I saw up here in the pen was the same calf that I saw unloaded from the trailer in the Matador pasture, and it sure was a wild calf. Ordinarily a wild cow will not mother any other calf than its own; they will never do it after they are the size of this calf. This calf would weigh 500 pounds, I guess; it was a big calf. From my observation of cattle, I don’t think any other cow except its own mother would have allowed that calf to suck.”

Attention is called particularly to the following circumstances: (a) Late in' the afternoon of February 22d appellant and Futrell. were seen leaving Paducah in a Buick coupe towing a trailer in which was appellant’s horse. They were going in the direction of the Matador pasture. (b) When the car, “a big coupe”, passed the Tucker place going toward the Matador pasture, it was towing a trailer in which was a horse. When the car returned from the direction of the Matador pasture there were in the trailer a horse and a “reddish” yearling. (c) Before any arrest was made, and when the sheriff first questioned the possession of the yearling by appellant and Futrell the latter in the presence of appellant made the explanation that the animal had been purchased from Corny Thomas. Upon the trial this explanation was admitted by Futrell to have been false, after the State had proved by Commodore Thomas (known as Corny Thomas) that the explanation was untrue, (d) The time that appellant and Futrell were seen leaving Paducah corresponds in time and description of the outfit with' the one seen passing Tucker’s place ■ going toward the Matador pasture. The time the parties were seen returning by the Tucker place is not inconsistent with the story told by Futrell as to what happened, and the description of the outfit seen returning fits exactly with that which appellant and Futrell were using. The time elapsing between the observation of the car and trailer as it returned by the Tucker place corresponds with the time when the sheriff met appellant and Futrell returning to Paducah, (e) Appellant’s horse which was in the trailer with the yearling was barefoot, and in a general way made the. same character of tracks found in the pasture near the car and trailer tracks, which also corresponded in a general way with the tracks of the car and trailer in use by appellant and Futrell. All of these items appear to be proven circumstances which to our mind tend to connect appellant with the theft of a Matador yearling.

All the evidence established the fact that the calf or yearling in question was ten or twelve months old, had horns about six inches long, weighed about five hundred pounds, was a big calf, had been raised on the range in a large pasture and was very wild.

Mr. Woodfin Woodley qualified as an expert on the habits of cattle and testified for appellant. Flis evidence on cross-examination seems rather favorable to the-State. It follows: “If the calf was ten- or twelve months old, an ordinary range cow would be nearly dry, and if she was bawling around and hunting her calf and didn’t have much milk, and a ten or twelve months old calf was turned out, I don’t think she would mother that calf and let it suck her. I never saw that happen with a calf that old. My experience has been with gentle cows and cow-pen cows and smaller calves, up to a month old. There would be a difference in mothering a calf that age and a bull calf ten or twelve months old.”

Mr. George P. Humphreys, also an expert defense witness, was -manager of the Burnett “6666” Ranch. His testimony on cross-examination, in part, is quoted: “If a ten or twelve months’ old calf with horns six inches long was taken out to a ranch and I found a Hereford cow that was nearly dry and bawling around and turned this calf out and this cow mothered it up and let it suck, and they got off together and grazed together, I would think that was her calf; I would think mighty strong it was. If the calf was a ten or twelve months’ old bull calf, with horns six inches long, and the cow had the year mark of 1928 and was in poor condition and nearly dry and had lost her calf, and this was a strange calf and she had never seen it before, and it turned out and she mothered that calf up and let it suck her, I would think it would be her calf in that case. . If it wasn’t her calf, I don’t think she would let him suck.”

We may have written at unnecessary length on the motion for rehearing, but having concluded that we reached the wrong result originally it has been our desire to set out in some detail the reasons for changing our view.

We have thought it not called for to set out the defensive or conflicting evidence. All issues raised thereby were submitted to the jury, and their finding is binding on this court.

The motion for rehearing is granted, the judgment of reversal is set aside and the judgment of the trial court is now affirmed.


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    HARDY v. STATE.
    No. 21256.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Rehearing Denied Dec. 4, 1940.
    Leon Lusk, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty.) of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of robbery by assault, and her punishment assessed at five years’ confinement in the penitentiary.

The indictment appears regular. The record is before this court without statement of facts or bills of exception, hence no matter of procedure is presented for review.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

On October 23d an opinion was released affirming the judgment, and reciting that the record contained neither bills of exception nor statement of facts. On October 26th appellant filed an unsworn motion, unsupported by affidavits or documentary evidence of any kind, saying: “If this Honorable Court will set this case for a hearing upon as to whether or not it should set aside former ruling of affirmance, this appellant will produce to the satisfaction of your Honors, documentary evidence to show that it was no fault of hers in any manner whatsoever; thát the statement of facts and bills of exceptions were not filed in this case, and if and when such proof is adduced to the satisfaction of your Honors, then the case will have merits sufficient to require this Court to reverse the judgment of the lower Court and grant this appellant a new trial to the end that justice may be done.”

This case was tried and judgment of conviction had on March 5, 1940. Sentence was pronounced on March 9th. The transcript was filed in this court'on July 5, 1940, during recess of the court. The case was not submitted until October 16, 1940. During all this time appellant has made no claim, apparently, that she had been deprived of either statement of facts or bills of exception, and has presented nothing here, save the motion filed on October 26th.

The motions to postpone, and for a rehearing, are overruled.