author: MORROW, P. J. HAWKINS, J.

text:
    BENNETT v. STATE.
    (No. 12199.)
    Court of Criminal Appeals of Texas.
    Jan. 30, 1929.

      E. A. Bills,- of Littlefield, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of five years.

The following is the theory of the state as developed from the evidence: On the night of March 3d there was a dance at the home of Mr. Nichols, about three miles from the town of Amherst. While the dance was in progress, Clarence Vivian was assaulted and robbed of a sum of money by a man named Slim Ownes. He struck Vivian upon the head with some instrument which felled him and- rendered him unconscious for the moment. After attending the dance, Vivian and one May entered a Eord automobile, drove away from the Nichols home, and stopped their ear near the public road, where it remained for a short time, and the robbery took place. Both Vivian and May were under the influence of intoxicants; May being in a drunken stupor. A Eord roadster passed May’s car while it was parked, turned, and came back. -Vivian and May had gotten out of their car, when a person got out of the Ford car and committed the robbery. After the robbery, and as the Eord runabout was driven away, May observed another person in it whom he did not recognize. The state relied upon various circumstances to establish the appellant’s identity as the-companion of Ownes and as the other occupant of the Eord roadster at the time of the-robbery.

Appellant relied upon an alibi, and, before-going to trial, applied for a continuance to-secure the testimony of Slim Walling, a resident of Lamb county, from whose testimony the appellant expected to support his defense of alibi. Among other circumstances relied upon by the state to connect the appellant with the commission of the offense, there was testimony that Vivian and May remained at the place where the dance occurred for some time; that May was quite under the influence of liquor; that he and Vivian entered May’s car and drove out to the place where the robbery occurred; that the appellant and Ownes left the place where the dance occurred in an automobile, and it was the theory of the state that they occupied the-automobile which was used by the robbers; that Ownes committed the actual robbery, while the appellant sat in the automobile and' kept the engine running, and together with Ownes drove back to the Nichols home.

The testimony imputed in the application to the absent witness Slim Walling was to the effect that on the night that the- dance-occurred he was driving his automobile; that he stopped the car at a point some 200 or-300 yards from the Nichols home, and while-there the appellant and Ownes drove up in-a Eord runabout which was stopped. The appellant got out of the car and came to that in which the witness was riding and engaged' in a conversation with Walling. While the-appellant was in conversation with the witness, another person got into the car with-. Ownes, and it was driven away in a westerly direction, which was in’ the direction in, which the offense took place; that the appellant crawled through the fence into an inclosure as the car containing Ownes and' another was driven away; that Walling soon thereafter returned to the dance, where he-saw the appellant, and, after seeing him, a messenger came giving information of the-robbery.

It was apparent from the motion for a continuance and the bill of exceptions that the appellant had been diligent in causing the issuance of a subpoena for the witness Walling, and that it had been duly served and returned; that Walling’s absence was due to sickness. The averment that he was sick was supported by a written communication of the doctor, in which it was declared that Walling was under his treatment and was unable to attend court and would probably be sick for several days, and the materiality of the testimony is made manifest from an examination of the statement of facts as well as from the bill of exceptions. The testimony of the witness Walling, moreover, coincides with that of the witness Kuykendall, who was with Walling, and also with that of the appellant, who testified in his own behalf, and denied any connection with the assault or his presence there, and admitted that he left the dance with Ownes, but quit him under the circumstances and at the time which was described by the testimony of the absent witness Walling. The appellant’s testimony and that of Walling is in conflict with the state’s theory, which, through circumstances, attempts to identify the appellant as the person who was with Ownes at the time the assault was committed. The application was the first one, and complies with all the statutory requirements. Upon the hearing of the motion for new trial, witnesses were called and based upon their testimony the court qualified the bill. No issue was made at the time of the trial challenging the truth of the statement in the motion accounting for the absence of the witness upon the ground of sickness. If at that time the truth of the matter was a subject of doubt, it was within the power of the state to issue process for the witness. He was already under process issued at the instance of the appellant, and with the information that he was sick and the certificate of the doctor to that effect, with the truth of it not challenged by the state at the time, the sufficiency of the diligence of the appellant is not deemed open to question. The absent witness being under process and sick at the time of the trial, it affirmatively appearing that he had but recently become ill, the averments of the application for a continuance not being controverted, and the materiality of the testimony as disclosed by the application being obvious, the error of the court in overruling the application is manifest. Adams v. State, 19 Tex. App. 12; Dyer v. State, 47 Tex. Cr. R. 253, 83 S. W. 192; Derrick v. State, 100 Tex. Cr. R. 223, 272 S. W. 458; Branch’s Ann. Tex. P. C. § 338. On the hearing of the motion for new trial there was no evidence combating the fact that at the time of the trial the witness Walling was sick. There was testimony that some days after the trial he was seen by the district attorney and did not then appear to be sick. The physician who attended him, however, testified on the hearing that at the time of the trial the witness was sick, that he was visited by the doctor on the night before the trial began, and that he was suffering from inflammation of the stomach and was not able to attend court on the day of the trial. That the witness was not sick at the time of the trial was not a proper inference for the court to draw from the testimony to the effect that some days after the trial he was not confined to his house. In the ease of Dyer v. State, cited above, the exact question was presented, and was ruled against the state’s present contention. To the same effect are the cases cited above.

In contesting a motion for new trial, the state is permitted by article 757, O. O. P. 1925, to present facts either by affidavit or oral testimony such as would render the error in overruling the motion for continuance harmless. Richardson v State, 28 Tex. App. 216, 12 S. W. 870. When the evidence adduced upon the hearing of the motion is properly brought up with the record, it is subject to review on appeal. See Washington v. State, 86 Tex. Cr R. 652, 218 S. W 1043; Bowman v. State, 98 Tex. Cr. R. 377, 265 S. W 909; Hughes v. State, 106 Tex. Cr. R. 550, 293 S. W. 575. Tested by the rule just stated, the evidence fails to show that at the time of the trial the absent witness was not sick, but is cogent to establish the contrary. Nor is the testimony of the district attorney, to the effect that the witness Walling when interviewed some time after the trial said that he did not want to make a statement, and, when asked why, said it might incriminate him, and that he would claim his immunity, under the facts at hand, deemed conclusive against the appellant. The hearing of the motion for new trial was on the day following that upon which the district attorney had conversed with the witness. Nothing appears affecting the appellant with knowledge that the statement had been made. There was no pleading filed controverting the motion for new trial, and, under the circumstances, nothing is perceived to show that there was a lack of diligence upon the part of the appellant to have process issued for the absent witness Walling at the hearing of the motion for new trial. The state having knowledge of his declaration to the district attorney, had both opportunity and power to bring the witness into court upon the hearing of the motion for new trial. If he had been present and claimed a right to silence unless given immunity, the power was within the court and district attorney to grant immunity and give him freedom to testify. Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682, 40 Am. St. Rep. 763; Turney v. State, 40 Tex. Cr. R. 561, 51 S. W. 243; Ex parte Copeland, 91 Tex. Cr. R. 549, 240 S. W. 314. If he had been brought to court, it might have been ascertained that he was mistaken in his conclusion that he was in need of immunity. At all events, the hearsay evidence brought out by the state without notice to tlie appellant, without an effort upon the part of the state to bring the witness into court, without the declaration by the court or the district attorney that they were willing to accord him immunity, would not, in our judgment, render harmless the action of the court in denying the appellant a continuance under the circumstances disclosed by the record. In the opinion of this court written by Presiding Judge White it was said:

“An application for a continuance, though a first one and in compliance with statutory requirements, is, it is true, not a matter of right; still the discretion exercised by the court in overruling it must not be an arbitrary but a ‘sound’ one.” Irvine v. State, 20 Tex. App. 40.

In a recent opinion of this court, written by Judge Lattimore, in which there is a complaint of the failure to grant a new trial for the alleged error in overruling the motion for a continuance, this court said: •

“It is the duty of the trial court in passing on a motion for new trial to consider the probable truth of the testimony expected from the absent witnesses in the light of the evidence adduced on the trial, and such issue is to be determined not by an arbitrary but by a sound discretion.” Cruz v. State, 100 Tex. Cr. R. 190, 272 S. W. 486.

See, also, Frazier v. State, 22 Tex. App. 120, 2 S. W. 637; Bronson v State, 59 Tex. Cr. R. 17, 127 S. W. 175.

In Irvine’s Case, supra, the action of the court in refusing a continuance brought about a reversal. In its opinion, this court said:'

“There can be no question as to the diligence used by defendant-to secure the attendance of said witnesses; there can be no question as to the materiality of the testimony sought to the defense; and, viewed in the light of the testimony adduced, there can be no question that most, if not all, the proposed testimony is probably true, because most of it is corroborated by the testimony of some one or more of the witnesses who did testify, and all such as is not corroborated is matter of most serious moment to the defense.”

In the present instance, the testimony of the absent witness, set forth in the application for a continuance, was material and upon a material issue, was corroborative of the appellant’s testimony and that of some of his witnesses, and, in our examination of the record, no sound basis has been perceived for declaring that his testimony was not probably true.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, J.

In. its motion for rehearing, the state sets out the evidence given by Fred Clark upon a hearing of the motion for new trial, and relies upon such testimony in connection with the other matters discussed in the original opinion as justifying the trial court in determining that, if Walling, the absent witness, testified as expected, his evidence would not be true. It is insisted that the court’s finding upon the matter should not be disturbed. No affidavit of Walling was attached to the motion. Clark was night watchman in the- town of Amherst. Upon the hearing of the motion for new trial, he testified that on the night of the robbery he saw the witness Walling every fifteen or twenty minutes' until after the robbery occurred, and knew that another party had Walling’s car, which was not returned until after the report of the robbery had reached town. It is clear from Clark’s evidence that he was of opinion Walling never left town either before or after the robbery. In fact he says: “I don’t think he went. I don’t think he went out there at all.” That Clark was mistaken to some extent is quite apparent from the testimony of the state witness May. After the robbery, May came to town to see about the extent of the injuries to Vivian. He started back to the scene of the dance after his car, and met it coming towards town. It was occupied by appellant, Ownes, and the young lady who had gone to the dance with AUvian, May and appellant. May says that Walling drove up, and the young lady got in his car and was brought back to town by Walling. Kuykendall testified on the trial that he and Walling only remained at the dance a short time,- then came on back to town, and, aftér hearing of the robbery, he and Walling started back and met several cars, in one of which was the young lady and appellant. He then relates, as does May, the incident of the young lady getting in Walling’s car and returning to town with them. It is therefore very certain that Clark was not advised as to Walling’s movements after the robbery became known. Article 757, C. C. P., reads:

“The state may take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.”

Some cases may be found holding that, while the state can only controvert the question of diligence upon an application for continuance, yet, if the application be overruled and complaint thereof is brought forward in a motion for new trial, the state may then— in the absence of an affidavit of the absent witness attached to the motion asserting that he would give the claimed testimony — inquire into the probable truth of the proposed testimony of the absent witness. Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925; Richardson v. State, 28 Tex. App. 216, 12 S. W. 870; Steel v. State, 55 Tex. Cr. R. 551, 117 S. W. 850; Woods v. State, 83 Tex. Cr. R. 332, 203 S. W. 54. Other cases are referred to in those cited. As was said by Judge Ramsey in Steel’s Case, supra, similar questions have “been before this court not infrequently, and usually we have held adversely to the state; but as will be seen by an inspection of the opinions in the several cases, every decision has to some extent been based upon the particular facts of the case.” The reason for such holdings being adverse to the state in most of the cases may be accounted for by the fact that the law has wisely vested in the jury the right to determine the credibility of witnesses and to settle conflicts in testimony, and the courts are naturally averse to depriving tile jury of the right so vested. Upon a motion for new trial, the probable truth of the proposed evidence of an absent witness — whose affidavit is not attached — is to be determined from the information then properly brought before the trial judge in connection with all the evidence which had been produced upon the trial. Considering the present case in its entirety, we are impressed with the view- that the movements of the various actors and witnesses are so confusing and the testimony so in conflict that a jury should not be deprived of an opportunity of passing upon appellant’s case in the light of Walling’s testimony if it can be obtained.

The state’s motion for rehearing is overruled.


source: Caselaw Access Project

author: HAWKINS, J.

license: Public Domain

text:
    Ex parte BINNEY.
    (No. 12453.)
    Court of Criminal Appeals of Texas.
    Feb. 13, 1929.
    P. C. Sanders, of Strawn, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted in justice court in Stephens county; the justice of the peace assessing and charging a fee upon the trial. Appellant appealed to the county court, where he was tried on the same complaint and again convicted. He was arrested on a capias pro fine issued from the county court. Upon a habeas corpus hearing for release he was remanded, from which order this appeal is prosecuted.

Exactly the same state of facts was presented in No. 12454, Ex parte S. V. Biggs (Tex. Cr. App.) 13 S.W.(2d) 831, decided February 6, 1929, and in No. 11621, Ex parte Carrie B. Owens (Tex. Cr. App.) 13 S.W.(2d) 371, decided January 16, 1929, in both of which eases it was held that, the proceeding before the justice of the peace being void, it furnished no basis for the appeal to the county court. See, also, Ex parte Kelly (Tex. Cr. App.) 10 S.W.(2d) 728.

The judgment is reversed, and the appellant ordered discharged.


author: MORROW, P. J. LATTIMORE, J.

text:
    BROWN v. STATE.
    (No. 12141.)
    Court of Criminal Appeals of Texas.
    Jan. 16, 1929.
    Rehearing Denied March 6, 1929.

      Oscar H. Calvert and P. H. Kveton, both of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of five years.

The evidence shows that Juanita Simpson, a negro girl about 8 years of age, was a member of the household of Masten Brown, the appellant; that the apellant’s wife was an. aunt of the little girl, and she was permitted by her mother to stay at the appellant’s home for about two weeks. While the appellant’s wife had gone to church, the little girl was left in his custody. She testified in detail to facts showing that he was guilty of rape. She claimed that he persuaded her to prepare herself for and to submit to the acts upon the promise of some ice cream and chocolate candy, and that he threatened to whip her if she revealed" the occurrence. She testified that she bled from her privates as a result of the acts of intercourse. The little girl’s mother testified that, since her return from the appellant’s home, for some cause “bloody corruption” came from her privates; that she had not previously been in that condition.

The appellant testified and denied any abuse of the child. He claimed that he and his wife had quarreled, and that the prosecution was instigated by his wife because of her enmity.'

The testimony of the two doctors who were introduced was to the effect that the examinations made by them led to the conclusion that there was not a complete penetration of the vagina of the prosecutrix, but that her private parts were bruised; that the lips of the vagina had been opened and entered; and that inside of the lips there were abrasions which might have been produced by the alleged assault.

Penetration is a necessary element of the offense of rape. Article 1187, P. C. 1925. The law does not require, however, that the penetration go to the extent of rupturing the hymen. It is enough that the proof shows that there was penetration between the labia of the female private parts. Watkins v. State, 78 Tex. Cr. R. 65, 180 S. W. 116; Mirick v. State, 88 Tex. Cr. R. 888, 204 S. W. 222.

Several bills of exceptions are found in the record. The first bill complains of a leading question propounded by state’s counsel to the witness Juanita Simpson. The question simply has to do with whether she was the wife of the appellant and whether there was any difference in her condition before and after the alleged assault of which she testified. The witness was only 8 years of age, and it was within the discretion of the court to permit a leading question. The bill fails to show that there were not conditions making leading questions appropriate. Moreover, the bill fails to show that there was an answer to the question.

Bill No. 2 relates to an inquiry of the mother of the prosecutrix as to whether she had had occasion to examine her daughter, to which she answered in the affirmative, when state’s counsel further asked: “What did you find?” The bill is silent touching the reply.

Bill No. 3 complains of the fact that there was proof of rape of the prosecutrix upon more than one occasion. The bill is too meager to demonstrate the accuracy of the claim. However, the court, in qualifying the bill, states that the testimony of which complaint is made was brought out by the accused, and that there was an absence of a request to withdraw it from the jury. The youth of the prosecutrix precluded the necessity of proving resistance upon her part or force more than would necessarily be involved in the act of penetration. See Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Alexander v. State, 58 Tex. Cr. R. 621, 127 S. W. 189; Edwards v. State, 78 Tex. Cr. R. 210, 181 S.W. 195.

Bill No. 5 is composed to a great extent of questions and answers which do not appear to have been1 authorized by any order of the trial court. The bill pertains, it seems, to the exhibition to the jury at some stage of the trial of some of the underclothes of the prosecutrix which were dirty and bloody. It is very difficult to determine from that part of the bill which is not in question and answer form whether the clothes were introduced in evidence or were relevant to any issue in the case. However, as the bill is qualified,, it appears that the jury was instructed that they would consider the apparel for "no purpose whatever, and this, in view of the fact that the penalty assessed was the lowest allowed by law, would, we think, be a sufficient answer to the contention that the bill reveals reversible error.

Bills Nos. 6 and 7 relate to the same subject-matter and have the same qualification as bill No. 5, except that in one of them there is a request that the defendant be discharghd because of the exhibition of the dirty clothes and the bloody apparel.

Bill No. 8 is a complaint of the refusal of the court to instruct the jury to acquit the appellant on account of the alleged insufficient evidence.

The third subdivision of the motion for new trial contains an averment upon which the appellant relied for a new trial upon the ground of newly discovered evidence.. These facts are, in substance, as follows: That the appellant was ignorant, was confined in jail from the time of his arrest, was unable to employ counsel, and was without opportunity to discover the alleged new testimony upon which he relied, that counsel were appointed to represent the appellant, and the case was immediately called for trial, and for that reason counsel had no opportunity to ascertain the existence of new evidence or to prepare for trial.

Touching the predicate or excuse for the want of diligence, the position before this court would have been much more plausible if some motion or request had been made at the beginning of the trial or before it began, after the appointment of counsel, seeking a delay such as would enable them to acquaint themselves with the facts and to prepare the case for trial. I-Iad such request been made, it is likely that the action of the trial.court upon it would have been favorable to the accused, and moreover, if there had been a denial of the request and bills of exceptions showing the’necessity for a delay, this court would be in a much better position to review the question. As it is presented here, without objection or a request for a delay, tbe appellant went into the trial, and, after the verdict against him, ascertained the existence of evidence which he claims is newly discovered and material to his defense.

Looking to the affidavit attached to the motion, the evidence of Martha Chatman is to the effect that at the home of Viola Simpson, the mother of the prosecutrix, Juanita Simpson, before the trial, the affiant heard the prosecutrix, in answer to a question as to whether she had been raped by the appellant, say, “If I didn’t say that Uncle Brown did that to me I would go to jail,” etc.; - that Juanita Simpson further said that her aunt (the appellant’s wife) kept her up at night telling her what to say upon the trial. The affidavit shows that, at the time of the alleged conversation. Viola Simpson, was present. She was a witness and testified at the trial. Appellant and his counsel then had an opportunity to inform themselves of any facts within her knowledge. The facts set forth are but impeaching, and even as such,'they are not specifically in conflict with the testimony of Juanita Simpson given upon the trial. The new evidence was, moreover, but cumulative of that which could have been obtained from the witness Viola Simpson. The ruling of the court is supported by numerous decisions. Among them are McVerse v. State, 103 Tex. Cr. R. 140, 280 S. W. 583; Beasley v. State, 97 Tex. Cr. R. 36, 259 S. W. 567; Cooper v. State, 103 Tex. Cr. R. 226, 280 S. W. 597; Lewis v. State, 82 Tex. Cr. R. 285, 199 S. W. 1091; Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, p. 29, note 32, and page 31, note 33, and cases collated; also Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99.

In the affidavit of Jessie May Alexander it was stated that some child’s bloomers and other dirty clothes were taken to the examining trial and shown there by the appellant’s wife, and that she took them away therefrom. The affiant afterwards washed some clothes for Juanita Simpson and found those bloomers so dirty and filthy that she burned them up; that she believed tbe clothes which she burned were the same that Juanita Simpson was supposed to have had on at the time of the alleged rape. The af-fiant further stated that she had seen the clothes that were introduced at the trial of the appellant, and that in her opinion these were not the same clothes that were taken to the examining trial. Some bloomers were present at the trial and identified by the appellant as belonging to Juanita Simpson. They were also identified by her as the bloomers which she wore at the time the offense was committed. The court withdrew all reference to the bloomers in the evidence from the consideration of the jury and instructed them to disregard the bloomers and all inquiries and testimony concerning them. If the bloomers had been left in evidence, a part of tbe testimony set out in the affidavit might have been admissible as a circumstance against the identity of the apparel. That part of the affidavit, however, which states the opinion of the affiant, would not be admissible. The testimony touching the apparel having been excluded, none of tbe matters set up in the affidavit would have been relevant.

Another affiant, Rosetta Rutherford, claims to have heard the appellant’s wife say, in the presence of Juanita Simpson, that, if Brown (the appellant) left her, she would have him put in jail, and that Juanita Simpson said: “Auntie Brown, Uncle Brown didn’t do nothing to me and didn’t bother me.” This was in the nature of impeaching testimony, which ordinarily will not require a new trial, though proper diligence is shown, to class the testimony as newly discovered. Alexander v. State, 84 Tex. Cr. R. 185, 206 S. W. 362, Washington v. State, 86 Tex. Cr. R. 652, 218 S. W. 1043, and other cases cited in Vernon’s Ann. Tex. C. C. P. vol. 3, p. 30, note 33.

Another affiant, Jim Rutherford, made an affidavit to the effect that Juanita Simpson and the affiant’s children went to school together ; that he often saw Juanita Simpson and saw her about the time of the alleged occurrence, and that she was playful; that he observed nothing the matter with her; also that about the time of the alleged occurrence he heard Brown and his wife quarreling and heard her threaten to put him in jail if he left her. To the same effect, in substance, was the affidavit of Josephine Bell; also that of Edna Bell. The appellant’s wife was not used as a witness, and her declaration set forth in the affidavit would not be admissible. It was hearsay and incompetent. The other purported testimony is not of importance.

The trial took place on April 24th, and the affidavits mentioned were obtained, several of them on the 3d of May, one on the 4th and one on the 7th of that month. They all appear to have- been made by persons who were intimates of the family of the prosecu-trix and of the appellant, and the alleged facts which they disclosed could manifestly have been ascertained by any character of diligence antecedent to the trial, and doubtless could have been obtained before the trial by a postponement. This is clearly a want of diligence which the law demands in discovering evidence upon which reliance is had for a new trial. The demand for diligence as a predicate for a new trial by reason of newly discovered evidence is statutory and emphasized by many precedents. Article 753, Vernon’s Ann. Tex. O. C. P. vol. 3, and cases collated at page 17, note 28. .

On the facts before him, the discretion of the judge presiding at the trial to refuse to order a new trial is manifest. Unless his discretion is abused, this court is not authorized to revise the judgment. Ross v. State, 98 Tex. Cr. R. 567, 267 S. W. 499; Latson v. State, 95 Tex. Cr. R. 502, 254 S. W. 982; Vernon’s Ann. Tex. C. C. P. vol. 3, pp. 15, 16, notes 26 and 27, and cases collated.

None' of the matters presented for review are regarded as justifying a reversal of the judgment. An affirmance is therefore ordered.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that we erred in our disposition of his bill of exceptions No. 5. From same we learn that, while appellant was on the witness stand certain garments were brought before the jury by the state’s attorney, to the exhibition of which, before identification, appellant objected. State’s counsel then asked appellant in reference to an undersuit. He denied any knowledge of same. He was then shown a towel which he said looked like one he owned. He was then shown a pair of bloomers, and said they belonged to prosecutrix. 'He was then asked what was on the bloomers, and replied “Dirt.” The state’s attorney then said, “And ihat’s blood, isn’t it?” to which he answered “Yes, sir.” At this point appellant made various objections, none of which seem verified further than as above appear, which .were overruled. Nothing in the bill shows the connection of said clothes with the offense on trial, or that same were introduced in evidence, or otherwise used or referred to during said trial. For aught we know, the bloomers may have served to solve some disputed issue, Trigg v. State, 99 Tex. Cr. R. 384, 269 S. W. 782; section 1855, Branch’s Annotated P. C. The court qualifies the bill, as stated in the original opinion. Same is so vague and indefinite as that we are not able to agree with appellant’s contention that it shows error.

Appellant insists that we erred in not sustaining his motion for new trial upon newly discovered evidence based upon affidavits thereto attached. In the orginal opinion we discussed these matters at some length; our attention not being called to the fact that all of said affidavits were taken before appellant’s counsel acting as notary public. Our attention now is called to this fact. Under all the rules, such affidavits cannot be considered. Miles v. State, 99 Tex. Cr. R. 337, 269 S. W. 1056. See authorities collated in Branch’s Annotated P. C. § 194.

Appellant also contends that we did not consider but one point raised in his bill of exceptions No. 8,'which complained of the refusal of a special charge. Said charge asked for a peremptory instruction upon a number of grounds, one of them being that there was a fatal variance between the indictment and the proof. While this is stated as a fact in said special,charge, our attention is not called to any such variance. The special charge is further based upon the fact that the state failed to prove by evidence that defendant used force as alleged in the indictment. Such failure in a case where the female is alleged to be under the age of consent seems held of no avail to the accused. Fields v. State, 39 Tex. Cr. R. 488, 46 S. W. 814; Buchanan v. State, 41 Tex. Cr. R. 128, 52 S. W. 769; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375. Said instruction was further sought on the ground that the evidence failed to show the prosecutrix not to be the wife of appellant. The proof in this case showing the prosecutrix to be of the tender age of 8 years, no further testimony would be needed to establish the fact that she was not appellant’s wife. Hardy v. State, 37 Tex. Cr. R. 55, 38 S. W. 615; Munger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874. A further ground of a request for such instruction appears to be that the state failed to corroborate the testimony of the alleged injured female. Such corroboration seems held not necessary under the. authorities cited in' section 1774, Branch’s Annotated P. C.

Believing the case properly disposed of in the original opinion, the motion for rehearing will be overruled.


author: MARTIN, J.

text:
    BENAVIDES v. STATE.
    (No. 11968.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.

      Tom Cheatham, of Cuero, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, willfully obstructing a railroad track; penalty, two years in the penitentiary.

A large piece of iron, which was apparently a part of a flywheel, was found on the Galveston, Harrisburg & San Antonio Railroad near Yorktown. Appellant and another were arrested, and appellant signed a confession.

The indictment charges the willful obstruction by appellant of the Galveston, Harrisburg & San Antonio Railroad. ■ The point is raised in various ways that the prosecution should fail because there is no such railroad at the point of the alleged obstruction; its real name being the San Antonio & Aransas Pass Railway Company, according to the records of the Interstate Commerce Commission. It was abundantly shown on the trial that the name alleged in the indictment was the name by which it was known to the general public. Its employees referred to it by such name, and, if it has some other name in the archives of the Interstate Commerce Commission, the public did not seem to be aware of it. It was correct pleading to thus designate it. Its designation by some secret name shown in the archives of a governmental department at Washington would mislead, instead of assist, the accused. The oply purpose of naming it was to correctly identify it and apprise the accused of the railroad he was charged with obstructing. If want of consent, or any other element which called for some affirmative act on the part of the railroad were involved, we would have a different question. For authorities sustaining this view, see Johnson v. State, 108 Tex. Cr. R. 499, 1 S.W.(2d) 900; Sweeney v. State, 65 Tex. Cr. R. 593, 146 S. W. 883. The case of Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130, relied on by appellant, deals with an entirely different question.

Appellant’s confession was introduced over his objection that he was at the time in custody by virtue of an illegal arrest. The contention is made that under the Constitution and the terms of the recently enacted search and seizure statute the admission of a confession given while illegally restrained is inhibited. The confession in the instant case was in writing, and on its face seems to comply with all the conditions laid down in article 727, C. C. P., regulating the admission of confessions while in custody. Nothing was admitted in evidence which was obtained as a result of any illegal search or seizure. Appellant’s confession on its face shows to he voluntary, and its admission is, we think, controlled by article 727, C. C. P., rather than the terms of the search and seizure statute as contended by appellant.

By bill of exception No. 10 it is made to appear that appellant timely presented a special charge, the substance of which was an instruction to the jury to disregard appellant’s written confession if there existed a reasonable doubt that he had received prior thereto the statutory warning. The court certifies in this bill that the “evidence fairly raised this issue.” If an issue was made in the court below as to whether or not appellant had been properly warned, as provided by article 727, O. O. P., the court should have appropriately submitted the question to the jury with specific instructions to disregard same if such a fact were found to be true or if a reasonable doubt existed as to same. Bozeman v. State, 85 Tex. Cr. R. 653, 215 S. W. 319; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130. The court either was in error in approving the bill of exception or in refusing to give the charge. We are bound by the bill of exception.

The defense of appellant was an alibi. His testimony and that of other witnesses abundantly raised this issue. No defensive issue of any character was submitted by the court in his charge. No exception, however, was taken to the court’s failure to give a charge on alibi, and same under the circumstances presents no error, and we mention this only because of another trial.

The court should also, we think, have affirmatively submitted the defensive theory of appellant, namely, that, if the jury believed the appellant obstructed the railroad track in question, but entertained a reasonable doubt that same was willfully done, they would acquit him. This we think was called for by certain statements in appellant’s confession introduced by the state, which raised the issue that the act was not done willfully. This matter was properly preserved by bill of exception, and should be given on another trial.

Other alleged errors complained of are believed to be without merit, and are overruled.

Judgment reversed, and cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: CHRISTIAN, J.

text:
    STUDDARD v. STATE.
    (No. 12069.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    Woolworth & Baker, of Carthage, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is murder; the punishment confinement in the penitentiary for 7 years.

About 15 minutes prior to the homicide appellant and one Tucker, a kinsman of deceased, Doc Wellborn, had a difficulty. Deceased was not present at this difficulty, hut learning of it, went to the store of appellant’s father and engaged in a fist fight with him. While this fight was in progress, appellant entered his father’s store, and, in endeavoring to separate the parties, cut deceased with a knife. Deceased died some 12 hours later. The knife used by appellant was described as an ordinary pocketknife with a blade 1% inches long. There was some testimony to the effect that appellant had stated shortly prior to the difficulty with deceased that he was going to have a bloody fight.

The offense was committed before the repeal of our manslaughter statute. The court gave a charge covering the law of murder, manslaughter, self-defense, and aggravated assault.

The jury were instructed that a deadly weapon “is one which, in the manner used, is likely to produce death, or some serious bodily injury or an assault.” Proper and timely exception was taken to that portion of the definition in which the jury were advised that a deadly weapon is one which in - the manner used is likely to produce an assault. The charge should have been corrected to meet the objection. We know of no authority for the proposition that a weapon is to he considered deadly if, in the manner in which it is used, it is likely to produce an assault. See article 1261, Vernon’s Annotated Penal Code of Texas, and authorities cited under note 2.

Appellant .timely excepted to the fail-lire of the court to embody the provisions of article 1261, P. C., in the charge. The substance of said article was given in connection with the charge on manslaughter. As applied to murder and manslaughter, said article should have been given and application of the provisions thereof made to the facts. The weapon used by appellant was not per se deadly, and the question of his intention to hill deceased was controverted. Where the weapon used is not per se deadly, the intent to till is a question of fact to be determined, under the statute, from the manner in which the weapon is used, and in such case it must evidently appear from the manner .and use of such weapon that there was an intent to kill. Collins v. State, 108 Tex. Cr. R. 72, 209 S. W. 403; Hanners v. State, 108 Tex. Cr. R. 302, 300 S. W. 71.

Timely' exception was taken to the failure of the court to give in connection with the charge on manslaughter an instruction covering the provisions of article 1263, Penal Code, which provides: “Where a homicide occurs under the influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appears that there was an intention to kill, but the party from whose act the death resulted may be prosecuted for and convicted of any grade of assault and battery.”

We deem it unnecessary to discuss the question. The charge should have been given. See Collins v. State, supra.

Por the errors discussed, the judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: RANDOLPH, J.

text:
    MOORE v. TUCKER.
    (No. 3214.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1929.
    Rehearing Denied March 6, 1929.
    Lockhart, Garrard & Brown, of Dubbock, for appellant.
    Dorenfield, Poster & Fullingim, of Amarillo, for appellee.
   RANDOLPH, J.

The appeal here being considered is from an order changing the venue of a suit from the district court of Lubbock county to the district court of Potter county. The plaintiff filed his suit, and the defendant filed a plea of privilege to be sued in Potter county. The plaintiff then filed his controverting affidavit, to which the defendant interposed a general demurrer. This demurrer is based upon the proposition that, upon their face, the plaintiff’s petition and his controverting affidavit are based upon a contract for the sale, exchange, and purchase of lands, and is a contract in law, on the part of plaintiff, conveying an undivided one-half interest to the defendant, and that said contract is unilateral and lacking in mutuality, since the defendant Tucker did not sign same-. The trial court sustained the demurrer, and changed the venue of the case to the district court of Potter county.

Por the better understanding of the issues involved, we set out the contract between the parties as follows:

"This memorandum of agreement made and entered into by and between J. Gline Moore of Lubbock County, Texas, party of the First Part, and J. D. Tucker- of Potter County, Texas, Party of the Second Part, witnesseth:
“That the parties to this contract have agreed to enter into a joint enterprise for the purpose of erecting and operating an amusement hall on the following described property situated in Lubbock County, Texas, to wit:
“The Southeast Fifteen Acres of the SE1/! of the SB1/! of Survey 7 in Block B, Lubbock County, Texas, and being the same land described in deed from W. B. Thorp to J. Cline Moore, of record in the Deed Records of Lubbock County, to which reference is here had, and the parties hereby enter into the following mutual covenants with respect thereto; .
“The said J. Cline Moore is the owner of said land above described which is encumbered for an indebtedness of $1,927.00, being the proportionate part of an indebtedness of $4,500.00 secured by a deed of trust on the entire SB1/! of the SB1,! of Survey 7, Block B, assumed by the said J. Cline Moore in the deed from W. B. Thorp to J. Oline Moore, the said indebtedness being fully set out and described in a deed of trust from W. B. Thorp to W. A. Strickland, recorded in Yol. 42, Page 633, of the Deed of Trust Records of Lubbock County, Texas, to which reference is here had, and a further indebtedness represented by Note No. 2 for $200.00, due on or before December 1, 1928, described in the deed from W. B. Thorp to said J. Oline Moore, and Note No. 3 in the principal sum of $2,253.70 payable in monthly installments) of $40.00 per month, the first due on or before April 1st, 1928, and one installment of $40.00 due on or before the first day of each month thereafter, set out and described in said deed from W. B. Thorp to J. Cline Moore, on which indebtedness four monthly installments of $40.00 have heretofore been paid.
“The said J. Cline Moore agrees to convey by warranty Deed to said J. D. Tucker, a one-half interest in and to said SE fifteen acres of the £⅜¼ of the SE1/! of Survey. 7, Block B, Lubbock County, Texas, and the said J. D. Tucker agrees to assume and pay off one-half of the indebtedness above described.
“The said J. D. is to build and erect, according to plans and specifications hereto attached and made a part hereof, a building 80 feet by 110 feet, to be used as an amusement hall, and the parties hereto agree to bear equally the costs of said construction, which is to be not less than $5,000.00 and not more than $7,000.00; the said J. Oline Moore is to advance the sum of $1,500.00 for the construction of said building, and the said J. D. Tucker is to pay the balance of the expense, and when the building is completed the said J. Cline Moore will execute in favor of said J. D. Tucker his note for the difference between the $1,500.00 advanced and one-half of the cost of erecting said building, said note to be due on or before January 1, 1929, and to bear interest from date at the rate of eight per cent, per annum, and to contain the usual provisions for ten per cent, attorney’s fees in case of default.
“It is agreed and understood that when the building has been completed the parties hereto shall each own an undivided one-half interest in the said fifteen acres of land and all improvements thereon situated, and that each o£ the parties shall be obligated for one-half of the indebtedness due to W. A. Strickland and W. B. Thorp above set out.
“It is further agreed and understood between the parties that neither party shall have the right to sell his interest in the property above described without the written consent of the other party, unless such party, desiring to sell shall first submit to the other party the price and terms which he has been offered, and such other party shall then have the preference right to buy the one-lialf interest of the other party at the price and terms submitted.
“It is agreed that insurance shall be carried during the construction of said building, and at all times thereafter equal to at least the amount of the actual cost of construction, such insurance policy being payable to the parties hereto jointly, and the costs of insurance premium shall be borne by the parties hereto jointly.
“Witness our hands at Lubbock, Texas, this the 3rd day of July, A. D., 1928.
, “J. Oline Moore.”

This contract is pleaded in hsec verba in 'the plaintiff’s petition, and is therefore controlling force in the assertion of plaintiff’s rights.

Appellee’s contention is clearly set out in his brief, as follows:

“Appellee makes no contention that the contract, as alleged and set forth in the original petition of appellant, is not a written contract within the terms and provisions of Article 1995, Subdivision 5, Revised Civil Statutes of 1925, but it is necessary for the appellant to allege sufficient facts to show a cause of action against appellee before venue of the suit may be maintained in Lubbock County, Texas. The operation of the statutes of fraud is not confined to cases where an action is brought directly upon the contract, but whatever the form of action may be, if benefit of a promise or contract within the statutes is essential to maintain that cause of action, there can be no recovery unless the statute is satisfied (27 C. J. 315), and the statute operates as a bar to all actions brought upon contracts falling within its terms. 27 C. J. 317; Robbins v. Winters (Tex. Civ. App.) 203 S. W. 149; Pitts v. Kennedy (Tex. Civ. App.) 177 S. W. 1016. And where.the contract is entire and inseparable; a part within the statutes brings the whole within the same (27 C. J. 318; 13 C. J. 561), and a promise to make or pay for improvements, which involves the transfer of land, or an interest therein, from one party to another, is within the statutes (27 C. J. 196), and the contract sued upon must be such and so bind the ob-ligor that a breach thereof will violate a legal right of the promisee, and confer upon him a legal action for damage.”

The defendant is entitled to be sued in the county of his residence, unless the suit against him comes clearly within one of the exceptions contained in article 1995 of the Revised Civil Statutes of Texas. Witting v. Towns (Tex. Civ. App.) 265 S. W. 410; Russell v. Green (Tex. Civ. App.) 214 S. W. 448. Subdivision 5, art. 1995, R. C. S., provides;

“Contract in Writing. — If a person has .contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.”

The contract herein sued on is shown not to have been signed by the defendant Tucker, but the plaintiff insists that it was not necessary for the defendant to have signed it, that a contract is and becomes a written contract when it is reduced to writing in the presence of all the parties thereto and agreed to, and is accepted by them as their contract.

It is clear that, under the rule laid down in the eases of Elder, Dempster & Co. v. St. Louis Southwestern R. Co., 105 Tex. 628, 154 S. W. 975, and H. & T. C. Ry. Co. v. Southern Agricultural C. S. Co., 112 Tex. 139, 245 S. W. 644, 646, this suit was properly brought in the district court of Lubbock county, unless the transaction sued on is a transaction ■ involving real estate in which the contract is required to have been signed by.Tucker in order to fasten liability upon him. Our statute of frauds provides that:

“No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party [sought] to be charged therewith or by some person by him thereunto lawfully authorized: * * ⅜ •

4. — Upon any contract for the sale of real estate or the lease thereof for a longer term than one year. * * * ” Subdivision 4, art. 3995, R. C. S.

In the case of Cleg v. Brannan, 111 Tex. 367, 234 S. W. 1076, where the two parties to the contract each was to convey, one to the other, certain described tracts of land, the contract being signed by only one of them, the Supreme Court held that, though the evidence established a contract in writing, such a contract, to be a contract for the sale of real estate, was not enforceable against the party not signing it. In that case, as in this, the plaintiff alleged that he having signed the contract, and, both parties having accepted it, that they were both bound. In overruling this contention, the Supreme Court holds that the acceptance of a contract in writing is not equivalent to signing it.

But it is contended that this is not such a transaction in real estate as comes within the purview of subdivision 5 above quoted; that the conveyance was to come from the plaintiff, and, as the. defendant did not have to execute any deed, he was not therefore involved in a real estate transaction. Can this make any difference in the application of the rule? We think hot. The basis of the transaction in the case at bar was a conveyance of real estate.. The plaintiff seeks to recover damages for the refusal of the defendant to receive the title to the land which the plaintiff sought to deliver to the defendant by virtue of the deed called for in the contract, instead of attempting to bring suit for specific performance. This does not destroy the nature of the contract or, convert it into a cause of action other than one involving a sale of real estate.

The Supreme Court speaking by Justice Williams in the case of Allen v. Allen, 101 Tex. 362, 107 S. W. 528, says:

“But when the owner of land agrees, as did Allen, that for a consideration it shall become the property of another, what is that but an attempt to convey his title, or a contract for the sale of his title? Or, if the agreement be to give the property to another, is it not merely an attempt to convey it? We can see but one answer to these questions and it is one which brings the case clearly within the inhibitions of the statute. The objection can not be met by merely changing the name of the transaction. In order to come within the doctrine of James v. Fulcrod [5 Tex. 512, 55 Am. Dec. 743], it must be one which does not conflict with the statute. No contract, or conveyance, whatever may be the name given to it; can be permitted to do that and be enforced.”

We therefore affirm the judgment of the trial court. ,


author: HIGHTOWER, C. J.

text:
    STATE ex rel. STEVENS et al. v. BLACK et al.
    (No. 1704.)
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 5, 1929.
    Rehearings Denied Feb. 6, 1929.

      Y. A. Land, of Houston, G. E. Richardson, of Jasper, and J. A. Mooney, of Woodville, for appellants.
    C. A. Lord, of Beaumont, for appellees.
   HIGHTOWER, C. J.

Appellants have set forth in their brief in this case a statement ' showing the nature and result of this suit, which is in no way questioned by appellees, and we will therefore adopt that statement as far as we deem necessary in disposing of this appeal. The statement by appellants is, in part, as follows:

“This is a quo warranto proceeding, instituted by the State of Texas, acting through J. A. Mooney, Jr., County Attorney of Jasper County, who, in filing the suit, acted of his own accord and upon the relation and at the instance of E. P. Stevens and another taxpayer in the territory affected. The pleadings were subsequently amended to permit sixty-five additional persons to intervene as relators, each of whom were citizens of Jasper County, Texas, and residents of and taxpayers in the territory affected. A. L. Black, J. M. Orton, C. C. Brown, O. M. Stone, H. L. Lanier, Garland Smith, R. J. Damrel and A. L. Hancock were named as respondents. The object of the suit was to have the town or city of Jasper, Texas, adjudged to have no legal existence as a municipal corporation and to oust the respondents from the respective offices which they were claiming, and the functions of which they were exercising, or attempting to exercise. * * *

“In the first amended information in the nature of qua warranto upon which the case went to trial, it was alleged that the town of Jasper originally had attempted to incorporate under the provisions of Chapter 11 of Title 28 of the Revised Civil Statutes of Texas, 1925, but subsequently had undertaken to change its status as a municipal corporation from that of a purported incorporated ‘town’ to that of a ‘city’ under Chapter 1 of said Title, and that the respondents were purporting and attempting to act as officers of the purported municipal corporation, the said A. L. Black as Mayor, J. M. Orton, C. C. Brown, O. M. Stone, I-I. F. Lanier and Garland Smith as Aldermen, R. J. Damrel as marshal, A. D. Hancock as tax assessor and collector, and Garland Smith as Secretary, each claiming that they had been duly elected or appointed as such officers and were assuming to act, and were acting, for and in behalf of said so-called Oity of Jasper in such official capacities. It was also alleged by Relators that the town of Jasper was never legally incorporated, and that the subsequent attempt to change its status from that of a purported town to i that of a purported city was also invalid and the purported municipal corporation then had no valid or legal existence, and the Respondents were not lawfully acting as officers thereof, for the reason that in the boundaries of the town there was included a large amount of territory, described in detail, which was not intended to be used for town purposes and was not suitable for town purposes, and which could derive no benefit whatsoever by being embraced within the limits of the municipal corporation; that the only reason for including any of said property was that it might be subjected to taxation for the support of the purported municipal corporation.”

The petition contained a prayer that the original attempt to incorporate as a town and the subsequent attempt to 'change its status to that of an incorporated city be declared void, and that the respondents be ousted from the offices they were attempting to hold, and enjoined from further exercising or attempting to exercise theffunctions of those offices.

The answer of the respondents contained a general demurrer, a number of special exceptions, a general denial, and special denials of all the material allegations contained in the petition of relators.

The case went to trial in the district court of Jasper county on December 23, 1927, with a jury, and on December 30, 1927, the evidence was closed and the case was submitted to the jury on the following special issue, which was the only issue submitted to the jury:

“When the incorporation of the town of Jasper was voted upon, was it the intention and expectation of those voting _ in favor of such incorporation that all of the lands and real estate in the corporate limits, as shown by the evidence to be included within the present city limits, would be used for strictly town purposes?”

On December 31st, shortly after dark, the jury returned its verdict answering this special issue in tlie affirmative. Thereupon in due time judgment was entered upon the verdict denying to relators any of the relief prayed for, and establishing and declaring that the city of Jasper had a legal existence and that the respondents were the duly elected and acting officers of the city of Jasper, as they purported to be. Relators in due time filed their motion for a néw trial, which was overruled, and they have perfected their appeal from the judgment to this court, and assign a number of errors which they contend entitle them to have the trial court’s judgment reversed.

These contentions are, in the main, that the jury’s verdict or answer to the special issue that was submitted is without support in the evidence, and is so against the great weight and preponderance of the. evidence as to be clearly wrong; and, further, that there was misconduct in the jury room after the case had been submitted to the jury, in that the members of the jury discussed matters and things, while deliberating upon the case, that were improper for discussion and consideration in the jury room; and, further, that the district clerk of Jasper county, Mr. W. O. Stringer, made statements and communications to the jury while the jury was deliberating upon the case that were highly improper to be made to the jury, and that such conduct on the part of the district clerk was calculated to prejudice and did prejudice the rights of relators, and caused the jury to return a verdict against them; and, further, that, after the case was given to the jury by the trial judge, the jury was not kept in the charge of an officer of any kind while deliberating upon the case, and that this was highly prejudicial to relators, and was of itself such an error on the part of the trial judge as to necessitate a reversal of this judgment.

This states, we say, the main contentions made by appellants for reversal of this case.

Appellants, in their brief, first advance their contention that the jury’s verdict is without support in the evidence, or is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. The evidence adduced upon the trial bearing upon the only issue submitted to the jury is very voluminous indeed, and required practically a week for its introduction. It is so voluminous that we could not, within reasonable bounds, attempt to detail and discuss the evidence bearing upon this contention. We- will say, however, that we have gone through the record very thoroughly and carefully, not.being content to take the statements contained in the briefs of counsel, but have searched the. statement of facts itself for all the evidence bearing upon this contention, and which the jury, it must be presumed, gave full consideration while deliberating upon the case. After having done this, we have concluded that this court would not be authorized to hold that the evidence adduced upon the issue submitted to the jury was so wholly and overwhelmingly against the jury’s finding as to show that their verdict was wrong, and we therefore have overruled this first contention of appellants. -

We shall next dispose of the contention made by appellants that the jury’s verdict in this case was the result of improper conduct in the jury room, and, in doing this, we shall proceed at once to state what the undisputed facts show in this connection.

As we have already shown, the case was called for trial in the lower court on the morning of December 23, 1927, and, after the general demurrer and special exceptions interposed by respondents were overruled, the case proceeded to trial with a jury of twelve men; but one of the jurors, right at the inception of the trial, became ill and was excused, and it was agreed between the parties to try the case with the remaining eleven jurors. The undisputed evidence shows that the taking of testimony continued throughout the week, and that the trial judge submitted to the jury the one special issue that we have hereinbefore copied about 7:30 p. m. on December 30, 1927. The testimony further shows without dispute that 'the jury, after receiving the case, was not in the custody or charge of any officer, but was turned loose to deliberate upon the case and to conduct themselves according to their own desire and judgment. The jury deliberated upon the case that night until somewhere after midnight, and then retired for the balance of the night, and, after getting breakfast next morning at the usual hour, again commenced their consideration of the case. This was Saturday morning, December- 31st. The undisputed evidence further shows that about 3 o’clock p. m. on the same day the district clerk of Jasper county, W. O. Stringer, entered the jury room where the jury was deliberating, and desired to know how the jury was getting along on the case. Mr. Stringer was informed, as we view this record, that there was little hope that the jury would be able to reach any verdict. Mr. Stringer then desired to know how the jury stood numerically — that is to say, how they were divided —and he was told that the jury were divided eight to three, and that they had been so divided fromi the time they first entered the jury room to deliberate upon the case. Mr. Stringer thereupon, as the undisputed facts show, suggested to the jury that they “proposition” each other. Mr. Stringer meant by this expression that the jurors should interrogate each other and try to ascertain the ■cause of their differences, and that they try to reach a verdict in the case. Mr. Stringer, on this occasion, was in th.e jury room, as the testimony' shows, -some five or six minutes, and when he left the jury room on this occasion the jury still stood divided eight to three. The undisputed evidence shows that eight of the jurors were in favor of giving a negative answer to the special issue submitted for their consideration, and three of them insisted on giving an affirmative answer to the issue, which of course,'shows that eight of the jurors were in favor of relators during all the time that they had been deliberating upon the case and up to the time that Mr. Stringer first entered the jury room. Several of the jurors testified on the motion for new trial that, at the time of Mr. Stringer’s first visit to the jury room, when he learned of the improbability of a verdict, he made the statement to the jury, in substance, that it was immaterial what tlie jury’s answer to the issue might be, for the reason that the case would be appealed anyway, regardless of how the jury answered the issue, and that, in fact, the necessary preparation for an appeal had already been made. Two of the jurors who testified on the motion for new tidal in favor of relators stated that Mr. Stringer, the district clerk, made these communications and statements to the jury at the time of his first visit. Mr. Stringer, however, who also testified on the motion for new trial, stated that he did not tell the jury that their answer, whatever it might be, to the special issue would be immaterial or that any preparation whatever for appeal had been made. In other words, Mr. Stringer emphatically denied what the twm jurors had stated in this connection. Mr. Stringer did admit, however, in his testimony, that he stated to the jury that the case would probably be appealed, regardless of what their answer might be to the special issue, as cases of such magnitude as the one before them were usually appealed by the losing side. Mr. Stringer also admitted in his testimony on the motion that he was very anxious that the jury should reach a verdict in this case, because, as he said, the court had already had two hung juries at that term, and that he was disgusted, substantially, with hung juries. In other words, Mr. Stringer’s own testimony, while the motion for rehearing was being heard, shows, we think, that he was willing and anxious for the jury to know that he was in favor of a verdict being reached, and, we might say, that a verdict ought to be reached. We think this conclusion cannot be escaped.

After Mr. Stringer had left the jury room, which, as we have shown, was about 3 o’clock on Saturday afternoon, December 31, 1927, one of the jurors who up to that time had been in favor of relators went over to the other side, and the jury then stood seven in favor of relators and four in favor of respondents. The testimony further shows without dispute that later on the same afternoon, in fact, just shortly before dark, Mr. Stringer went again to the jury room and asked the jury if they had gotten a verdict, or something to that effect, and was informed that no verdict had been reached, but that the jury then stood seven to four. Mr. Stringer then told the jury that the district judge, Hon. Y. I-I. Stark, who lived in Orange, Tex., was intending to leave Jasper at 6:30 that evening and go to his home at Orange, and that in all probability he (Judge Stark) would not return to Jasper before some time in the afternoon of Monday following. He told the jury that Judge Stark would be compelled to go to San Augustine the following Monday morning and open his court there, and impanel his grand jury and jury for the week, etc., and that he could not return to Jasper to receive any verdict from the jury earlier than some time the following Monday afternoon, and he gave the jury to understand that, unless they reached a verdict before Judge Stark took his departure from Jasper on that evening, they would have to be kept together and tied up on the case until Judge Stark might return to Jasper the following week. Mr. Stringer, on this occasion, asked the jurors if they wanted their pay' as jurors for the week, and some of them said they were broke and might have to have money to pay their hotel expenses. Anyhow, Mr. Stringer made arrangements to pay the jury, off what was coming to them for the week, and did so. and then went to his home in the town of Jasper, and while he was gone the jury made up their verdict and answered the special issue, as we have shown, in favor of respondents. One of the jurors who testified upon the motion for new trial stated that he never would have answered the special issue as he did answer it if it had not been for the fact that he knew that the jury would be tied up and could not get loose on account of the fact that Judge Stark would be absent from Jasper until at least some time during Monday of the following week. Two of the jurors on the motion for new trial testified, in substance, that what the district clerk had said to them about the verdict being immaterial regardless of what it might be had something to do with their answering the issue as they did. They stated that they felt that, if their finding was going to be immaterial anyway, there was no use or reason in their being tied up and kept together, and that they might go on and dispose of the issue, regardless of whether they found for one or the other of the parties.

The undisputed evidence showed that six of the jurors who tried this case (and we have shown there were only eleven of them) had just been hung up on another jury case which had just preceded this case, and that as soon as they were disehai'ged from that case they were immediately put in the jury box in this case; and it is further shown that the weather was very cold and disagreeable at the time the jury was deliberating upon this case, and that some of the jurymen lived quite a distance in the country from the courthouse in the town of Jasper, and it is highly probable that some of these tired jurors were very anxious to go to their homes and families as soon as they could possibly do so.

Some two or three of the jurors who sat in this case testified upon the motion for new trial in favor of respondents, to the effect that they did not hear Mr. Stringer, the district clerk, say in the jury’s presence that the answer of the jury to the special issue would be immaterial, or that any preparations for appeal in the case were in progress or had been made. But all of these jurors did testify, in substance, that it was stated by someone in the jury room, while the deliberation was going on, that their answer to the special issue would be immaterial because an appeal of the case would be had anyway, and one of the jurors who testified in favor of respondents on the motion for new trial stated, in substance, that he understood from what Mr. Stringer said to the jury about Judge Stark going home and not returning before Monday, had come from Judge Stark himself, and that Mr. Stringer had been requested by Judge Stark to so inform the jury. Mr. Stringer, however, -testified that he did not tell the jury that Judge Stark had authorized him to make any statement whatever to the jury, and he says that he did not intend to leave the impression with the jury that he had been sent by Judge Stark to communicate with them.

"We have stated in this connection what we believe to be the undisputed material evidence bearing upon the claim of misconduct in the jury room, and as to whether there was such conduct as to require the setting aside of the jury’s verdict. Now let us see what the present state of the law is with reference to misconduct in the jury room while the jury is deliberating upon a verdict. Learned counsel for the appellees here advance the proposition, in substance, that the trial judge, having heard the motion for new trial and having heard all the evidence of the members of the jury and the district clerk, touching the claimed misconduct and its effect, and having concluded as a fact that nothing that took place was calculated to prejudice or did prejudice the rights of appellants, such conclusion on the part of the trial judge is binding upon the appellate court, and he was in the j-ightful exercise of a sound discretion given him by law in overruling the motion, and that it is not the province of this court to reverse and disturb the finding of the trial court in the matter.

It seems to be now well settled by the more recent decisions of our Supreme Court and the Commission of Appeal, approved by the Supreme Court, that, where misconduct of any kind is shown to have taken place in the jury room, injury will be presumed, and then the burden rests upon the litigant who would uphold the verdict to show beyond a reasonable doubt that the misconduct did not in fact result in prejudice to the losing party. We have so held in the comparatively recent case of St. Louis Southwestern R. Co. of Texas v. Smithhart, Administrator of the Estate of Lee Roy Smithhart, Deceased (Tex. Civ. App.) 9 S.W.(2d) 146. In that ease, as our opinion will show, Judge Walker reviewed the authorities up to date touching the effect of misconduct in the jury room. The misconduct there complained of was a discussion by some of the members of the jury of the question of attorney’s 'fees in that case and as to what effect it had had upon the jury in fixing the amount of recovery by the plaintiff. We held that the conclusion could not be escaped that the question of attorney’s fees had been mentioned and discussed to some extent by the jury, and that such constituted misconduct, and that it became a question of law for the trial court to determine as to what the legal effect of that misconduct was, and in that connection Judge Walker, speaking for this court, said:

“Having determined the facts, of course, it becomes the duty of the trial court to announce the law of such facts, by either granting a new trial or overruling the motion for a new trial. The trial court’s conclusions of law on such facts are subject to review by the appellate court, as are the conclusions of law on other facts. If, under the decisions announcing the law, the trial court has improperly construed the facts, it becomes the duty of the appellate court- to reverse its judgment. Where misconduct has been shown, as in this case, the law presumes injury. Upon such a showing, as a matter of law, the complaining party is entitled to a new trial, unless it appears beyond a reasonable doubt that injury was not shown.
“If there is a reasonable doubt as to the effect of the misconduct, the trial court should grant a new trial, and, should that relief be refused in the lower court, it becomes the appellate court’s duty to reverse the trial court’s judgment.”

The law that we have just quoted, as announced by Judge Walker, is applicable to the situation here. It is not contended by counsel for appellees in this case that the statements and communications made by the district clerk, Mr. Stringer, to the jury while deliberating upon this case were proper to be made to the jury, but their contention is, in substance, that the trial court has evidently concluded that these statements and communications and conduct on the part of the district clerk, in the presence of the jury, was not calculated to cause the jury to reach their verdict against relators, and that it probably did nbt do so, and that such conclusion by the trial judge is binding upon this court. We cannot agree with learned counsel for appellees in such contention. It was, of course, improper for the district clerk to enter the jury room and give the jury to understand that he was very anxious that a verdict • should be reached by them, and the undisputed testimony in this ease shows that Mr. Stringer did this, not that he intended to do anything improper, but what he did and said in the presence of the jury was improper conduct in the jury room, and, unless this record shows beyond a reasonable doubt that such conduct did not prejudice appellants, it is the duty of this court, under the law as now settled in Texas, to reverse this judgment.

Now let us look briefly at the situation and see whether it is shown beyond a doubt that the communications and statements of the district clerk to the jury in the jury room had •no effect upon the jury in bringing about the verdict in this case. As we have shown already, the jury stood eight to three for relat-ors from the time they got the case until Mr. Stringer had his first communication with the jury. One juror then went over to the other three for the respondents, and thus the jury stood seven for relators and four for respondents, and again about dark Mr. Stringer came to the jury room and gave the jury to understand that the district judge was expecting to leave the city of Jasper in a very little while, and that, if he should do so before a verdict was reached, the jury would have to be tied up and kept together until at least Monday evening of the next week, tip to that time this record would indicate that there was no reasonable hope that the jury would reach a verdict in this case, especially a verdict in favor of respondents. But the jury being convinced, as we think this record reflects, that they would either have to reach a verdict of some kind or remain tied up for an unreasonable length of time, the seven that were in favor of relators all at once and at the last moment came over to the four that were in favor of respondents, and thereby relieved themselves from .the fatigue and uncomfortable situation that they were in at the time, considering the fact that they had been tied up all that week and some of them several days before, and the weather was cold and disagreeable, and some of the jurors lived quite a distance in the country. Be■sides, as we have already shown, one or two of the jurors testified upon the motion for new trial that they never would have answered the special issue as they did had it not been for the fact that they thought they would be tied up and held together for an unreasonable length of time. This, we think, was an affirmative showing that the miscon-diict complained of resulted in the jury’s reaching a verdict in this case. Now, can it be said that this verdict is the result of a full and fair discussion of the evidence before the jury? We think not. We cannot escape the conclusion that the jury reached the verdict they did reach in this case not from a full and fair and free discussion of the evidence. before them, but out of a fear and dread that they had of being tied up and held together for an unreasonable length of time, and under circumstances shown to be disagreeable and uncomfortable. The undisputed evidence in the ease shows that the jury had sent word to Judge Stark early in the afternoon of December 31st that there was no hope of reaching a verdict,, but they were informed by the judge at that time that he could do nothing for them, and that they must remain together and deliberate further upon a verdict. Now at that time the jury stood numerically as it had been from the first, and there was really no change in their standing until a few minutes before the verdict in this case was reached. It is clear to this court that the verdict in this case was not the result of a full and fair expression of the opinion of the jurors who tried it, based upon the evidence before them, but that, on the contrary, the verdict in this case’ was really coerced and should not be permitted to stand.

It results from these conclusions that this court is of the opinion that the trial judge was in error in overruling the relators’ motion for a new trial on account of misconduct in the jury room, and that for that error it becomes the duty of this court to reverse this judgment, which was accordingly ordered.

If there should be a new trial of this ease, there is only one question presented here that would probably arise upon another trial that calls for specific mention by us. The trial court held on this trial that the burden of proof rested upon relators to establish their contention that the city of Jasper had no legal existence by reason of the fact that territory had been included Within the corporate limits that was not suitable for and was not intended to be used for town purposes. Counsel for relators objected to that ruling, and presented the matter here. We think the trial court was correct in ruling that such burden of proof was upon relators, and the trial court will be governed accordingly upon a retrial of this case.

All other contentions made by counsel for relators are overruled.

Judgment reversed, and cause remanded.


author: WALKER, J.

text:
    ÆTNA CASUALTY & SURETY CO. v. RUSSELL et al.
    (No. 1744.)
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 3, 1929.
    Rehearing Denied Feb. 27, 1929.
    Harry P. Lawtlier, Terrell & Miller, and J. P. Miller, all of Dallas, for appellant.
    Gib Callaway, of Brownwood, for appellees.
   WALKER, J.

On the 8th day ■of March, 1920, T. A. Russell contracted in writing with F. C. Herbst for Herbst to build him one brick building and to remove and repair a wooden building for an agreed consideration of $18,000, which, by additions and changes provided for in the contract, was increased to $18,317.80. Appellant, as surety, joined with Herbst in executing a bond to appellee in the sum of $9,000 to secure the faithful performance of the contract. The wooden building was moved and repaired, but Herbst abandoned his contract without finishing the brick building. Appellee gave due notice to appellant of Herbst’s default, as required by the bond, whereupon appellant denied all liability on its bond on the ground that appellee and Herbst had breached the following condition of the contract:

“Payments of the value of all work executed satisfactorily based upon the estimated value thereof as determined by the owner will be made every week, said amounts covering payment for labor only, and said first party reserves the right to require each week a payroll receipt from all men employed showing full payment to all laborers as said amount is advanced by first party; and payment of 75% of the value of all material furnished in the construction of said building will be made every two weeks, the owner-reserving the right to require a receipt from the concerns furnishing said material showing payments made to said concerns and the payment' of the other 25% of the balance covering all materials u,p to the full amount of said contract price will be made after final approval and acceptance by first party of all other material and work embraced in this contract. Before or at the time final payment is made second party agrees to furnish receipt of all bills of whatsoever character paid and make an acceptable contractor’s affidavit to that effect.”

Appellee then brought this suit, pleading the contract and bond, Herbst’s default, due demand upon appellant, and prayed for his damages in the sum of $4,853.11. Among other defenses, appellant pleaded breach of the abov'e-quoted clause of the contract. The trial was to a jury, and on its verdict judgment was entered in favor of appellee against' appellant and Herbst for the sum of $3,960.03, together with an attorney’s fee of, $500, under the conditions of the bond, and an additional judgment against Herbst for $180.

The parties agree that the facts were without dispute, and on the substantive law of the case regulating their relations to each other, as announced by the Supreme Court in Bullard v. Norton, 107 Tex. 571, 182 S. W. 608, that any material alteration in the terms of the contract without appellant’s consent would release it from liability, and that whether the change in the contract was injurious to appellant or favorable to it. The facts may be summarized as follows:

(1) Appellant and Herbst entered into a contract in writing containing the above-quoted clause, whereby Herbst was to build’ for appellee one brick building and move and repair one wooden building for $18,000, which, by additions and changes allowed by the contract, was increased to $18,317.80. Appellant entered into a bond with Herbst in the sum of $9,000, payable to appellee, to secure the faithful performance of the- contract.
(2) The wooden building was moved and repaired in accordance with the contract, and for this work, under the contract, Herbst was allowed $2,000 of the contract price.
• (3) Herbst abandoned the brick building before it was completed. The expense of finishing the building as per the contract was small, and the amount involved thereby was not a controverted item.
(4) During the progress of the work, Herbst presented all his labor bills to appellee, in accordance with the express conditions of the contract, as quoted above, and appellee duly paid the labor bills when presented to him.
(5) “Every' two weeks” Herbst presented to appellee bills for the “value of material furnished in the construction of said building” as the material was furnished, and appellee duly, paid to Herbst 75 per cent, of all the bills thus presented to him.
(6) Herbst continued on the job, presenting labor bills “every week” and material bills “every two weeks,” and appellee continued paying all the labor bills in full and 75 per cent, of the material bills thus presented to him until he had paid to Herbst the full contract x>rice of $18,317.80.
(7) When appellee notified Herbst that all the contract price had been exhausted, Herbst abandoned the contract on the ground that he was without funds to finish it.
(8) All the money paid by appellee to Herbst on the contract was used-by Herbst in payment of labor and material bills incurred by him in executing the contract.
(9) At the time Herbst defaulted, there were unpaid material bills in the sum of $4,123.91 for material used under the terms of the building contract in the construction of the brick building.
(10) The total cost of the material used in both buildings was $11,485.39. The total cost of labor under the contract was $10,-956.32.

Appellee paid to Herbst on material bills $7,361.48. The amount unpaid was in excess of 25 per cent, of the total cost of material. The jury found that appellee retained in his hands “at all times, until after the defendant the AUtna Gasualty & Surety Company had refused to complete said building and pay the balance of the bills then due for material used * * ⅜ at least twenty-five per cent, of the total amount due for said material under the terms of the contract introduced in evidence.” Appellants excepted to the submission of this issue, on the ground that it involved a conclusion of law to be drawn by the court from the undisputed facts, and that, on the undisputed facts, verdict should have been instructed in its favor. Appellee agrees with appellant that the issue is one of law and not of fact, but insists that on the -undisputed evidence verdict should have been instructed in his favor. The parties then being in agreement on the facts and on the substantive law of the case regulating their respective rights, we have before us only one question: Upon the agreed facts, did the appellee and Herbst make material alterations in the building contract? If they did, appellant was released. If they did not, judgment was properly entered against it.

Surety contracts are strictly construed in favor of the surety. The rule is thus stated by 32 Cyc. 73: “Sureties are said to be favorites of the law, and a contract of suretyship must be strictly construed to impose upon the surety only those burdens clearly within its terms, and must not be extended by implication or presumption. This rule is followed both at .law and in equity. Construction in favor of the surety should not, however, be carried to the length of giving the contract a forced and unreasonable construction with the view of relieving him.”

The surety assumes no burden not clearly within the terms of the contract. If there is an ambiguity, the contract must be given the construction most favorable to the surety. But the rules for construing surety contracts, as with all other contracts, have been devised to assist in ascertaining the intent of the parties. This intent, when ascertained, is the contract, and must be enforced. Though sureties are favorites of the law and must be given the benefit of ail ambiguities, yet it must be borne in mind that the parties to such contracts are trying to assume reciprocal' duties towards each other, and therefore a surety contract must not be given “a forced and unreasonable construction,” with a view of relieving the surety; that is to say, the contract should not be so construed as to make it null and void unless such a construction is absolutely imperative. This is so because it was not the intent of the parties to make that kind of contract. Construing the building contract in the light of these fundamental rules, what was the intent of the parties in relation to the 25 per cent, re-tainage? This inquiry is pertinent because, if appellee has violated that intent, then he lias no cause of action against appellant. We think the trial court has given the contract the correct construction. The parties did not undertake to say by their contract what part of the contract price was to be applied to labor bills nor what to material bills. The obligation to pay the labor bills in full as and when presented was absolute. The obligation to pay' 75 per cent, of the material bills as and when presented was absolute. There was nothing in the contract saying when the material should be bought, but, of course, it had to be bought before the labor could be performed. The lábor bills amounted to $10,-956.32. When the material bills, were presented to appellee, there being no agreement as to the amount of these bills to be paid by him, hut only the percentage; how could he have refused the percentage payment without breaching his contract? The prompt and punctual payment by appellee was an absolute obligation. There was nothing in his contract compelling him to estimate, or aiding him in making such an estimate, the probable cost of future labor bills, so that he might retain funds to meet them. That the material bills might be in excess of the contract was the very contingency contemplated by the surety bond. Appellant bound itself to pay these bills on condition that appellee would pay the labor bills in full as and when presented to him and 75 per cent, of the material bills as and when presented to him, and appellee has faithfully discharged that obligation to the extent that these bills were duly paid by him and all the contract price went into the contract. Appellant has been given the benefit of every cent provided by the contract for its indemnity and of the 25 per cent, retainage on the material bills. Appellee and Herbst did not finish the building, and, having paid all the bills, call upon appellant to respond on its bond. But, working under an ambiguous contract, they give it the only construction that would not have nullified it.

That the contract was subject to no other construction seems to us obvious from appellant’s brief. It has offered no construction that would have permitted the construction of the brick building. It does not suggest any specific sum nor any method by which appellee could have ascertained a specific sum that he should have retained in his hands or was bound to retain. It simply says that appellee contracted to withhold 25 per cent, of the material bills, and, not having any money in his hands when the contract was abandoned by Herbst, has breached the retainage clause. Does the contract mean that appellee was to retain 25 per cent, of the difference between the labor bills and the balance of the contract price? As already suggested, there is nothing in the contract by which this sum could have been ascertained. Nor does appellant suggest that ap-pellee was to retain and have in his possession 25 per cent, of the total cost of the material bills, nor does he suggest how appellee could have ascertained this amount. Appellant must adopt one or the other of these constructions, for, if appellee was bound to withhold any specific sum and have it in his possession upon breach of the contract by Herbst, appellant must find that obligation in the bond. In our judgment, to adopt either construction would be to give the contract “a forced and unreasonable construction,” resulting in the discharge of appellant on the ground that the contract was so ambiguous as to have no ascertainable intent. The parties were not so contracting when Herbst agreed to build the brick building and move the wooden building and when appellant agreed for a premium of $180 to become his surety for the faithful performance of Ms contractual obligation.

In what we have said we have not overlooked the following clause from the above-quoted conditions of the contract: “The payment of the other 25% of the balance covering all materials up to the full amount of said contract price will be made after final approval and acceptance by first party of all other material and work embraced in this contract.”

This clause was inserted anticipating that Herbst would be able to do the work and pay all the bills out of the contract price, in which event 25 per cent, of the material bills would have been in appellee’s hands and there would have been no ambiguity as to the liability of the parties. The clause, “after final approval and acceptance by first party of all other material and work embraced in this contract,” has no meaning when construed apart from the instrument as a whole. The parties provided for moving and repairing the old house at $2,000, and building the brick house for the balance of the contract price. The clause under discussion was intended to regulate the payment of all work. As we construe this clause, the parties anticipated that the work would be done within the contract price, and retainage was to be paid only after all the work had been accepted. But that was not the result. The cost greatly exceeded the contract price. Appellee having given the contract the only practical construction, in relation to the retainage, it should not bo said that in doing so he had made a material alteration in the terms of the contract secured by appellant’s bond. Though the parties are in agreement on the substantive law of the case, appellant, in addition to Bullard v. Norton, supra, cited Larkin v. Pruett Lumber Co. (Tex. Civ. App.) 209 S. W. 443; Porter v. Hope (Tex. Civ. App.) 279 S. W. 535; Pratt Lumber Co. v. T. H. Gill Co. (D. C.) 278 F. 783. These decisions are only additional authority in support of the proposition announced by Bullard v. Norton.

On our construction of the contract and of the evidence, it becomes unnecessary to discuss the assignments against the argument of appellee’s counsel.

Eor the reasons given, the judgment of the trial court is in all things affirmed.

On Rehearing.

Appellant criticizes our fifth and sixth conclusions of fact, saying- it did not agree with appellees that the facts thus stated are correct. We understood from the oral argument and from appellant’s brief that it agreed to these facts, but, as it now says we are in error in so concluding, we withdraw the statement. Appellant says that the true facts are that appellee paid the labor bills in full as and when presented to him, and that the amount sued for was for material bills he knew nothing about until the contract had been abandoned. The fifth and sixth con-elusions of fact have abundant support, not only in the evidence, but also by the jury’s finding answering question No. 4, which is reflected by our opinion. To this issue the jury answered, “Yes,” and of this answer ap--pellant says in its brief, “the jury could not have answered otherwise.”

This case was not tried in the lower court nor briefed in this court on the theory that appellee breached his contract by paying the weekly estimates in full as and when presented to him', for, as found by the jury’s verdict, the payments so made were in accordance with the 25 per cent, retainage clause. Appellant defended upon the ground that appellee, though retaining 25 per cent, every two weeks, continued his material payments until all the contract price had been exhausted. It was appellant’s theory that appellee, not having any of the contract price in his hands when he called upon it to respond under its bond, had breached the contract. It was its theory that Herbst should have been paid some sum less than the contract price; that, when he abandoned the contract, appellee should have owed him some amount on the contract price, and that this amount, under the contract, should have been 25 per cent, of the value of the material used. Though there were unpaid bills in excess of the 25 per- cent, retainage, and under the jury’s verdict this amount was at all times owing, because appellee paid to Herbst the full contract price and because Herbst had nothing coming to him from appellee, appellant insisted in oral argument and in its brief that the contract had been breached. Appellant’s criticisms of our conclusions of fact are overruled, as is also its motion for additional findings of fact. ,.

As a proposition of fundamental error, appellant now suggests for the first time that it is not liable because appellee was under no obligation to pay the bills sued for in this case. It says that appellee, under the uncontradicted evidence, paid the contractor, Herbst, the full contract price without notice from the holders of the material bills ‘of their claims, and therefore under article 5463 he was protected against liability. We quote as follows his argument on this proposition:

“It thus appears that the payment by ap-pellee of these unpaid labor and material bills was purely a voluntary act upon his part. He did not owe these bills. The debts were those of Herbst, the contractor. The holders, not having given appellee notice of their unpaid claims before he had paid to the contractor the full amount of the contract price, could fix no mechanic’s lien upon the improvement or property, and appellee was, therefore, under no necessity to pay these bills.
“Appellant was under no obligation to pay them. It had not undertaken by its bond to pay all the labor and material bills ■ that Herbst contracted in the performance of his contract. It only undertook to indemnify Russell ‘against loss or expense resulting from the failure of Herbst to pay all labor and material bills in connection with the contract.’ Appellee having paid to Herbst the full amount of the contract price, without notice of any unpaid labor or material bills, the failure of Herbst *to pay said bills could not, as a matter of law, result in loss or expense to appellee. He did not personally owe the bills, and the holders of the same could not fix a mechanic’s lien upon his -improvement or property for the amount thereof.”

We decline to review the facts or make any conclusion of fact or of law on this proposition presented for the first time on motion for rehearing. The proposition is not one of fundamental error. Yardley v. Houston Oil Co. (Tex. Civ. App.) 288 S. W. 861.

The motion /for rehearing is overruled.