author: SLATTON, Commissioner.

text:
    CROSTHWAIT, County Auditor, v. STATE et al.
    No. 1792—7327.
    Commission of Appeals of Texas, Section B.
    April 17, 1940.
    Guy L. Mann and E. G. Moseley, both of Dallas, for plaintiff in error.
    W. F. Clark, of Dallas, for defendants in error.
   SLATTON, Commissioner.

Mandamus proceedings by the State on the relation of John Parks, Jr., et al., against the County Auditor of Dallas county. Judgment of the trial court was in favor of relators which was affirmed on appeal. 107 S.W.2d 477. This Court granted the writ of error.

The district attorney of Dallas county employed a transfer company to haul marble boards from the places where they were being used in violation of law to the courthouse where such equipment was to be held and used as evidence in applications of the district attorney pending in the district court for destruction orders. The total expenses contracted amounted to $54.90.

The district attorney made application to the commissioners court of Dallas county showing the above facts and asked that such bill be allowed by the commissioners court and that said sum be paid out of a fund which had been set apart by the court to take care of expenses allowed by law to the office of district attorney of Dallas county, as provided in Vernon’s Annotated Civil Statutes, 1925, Article 3912e, Section 19(g).

The commissioners court approved the claim as presented but the county auditor refused to recognize the claim as a valid claim against Dallas county.

The relator’s prayer is as follows: “* * * That upon hearing a writ of mandamus he issued ordering him (County Auditor) to immediately issue a warrant or check payable to the Central Transfer & Storage Company in payment of the debt alleged herein and heretofore approved by order of the commissioners court in the sum of $54.90.”

The judgment provides: “That * * County Auditor be and he is hereby directed to take immediately all steps necessary according to the procedure of his office to secure the payment of the drayage bill * * * etc., * * * and shall classify and set up said item in the customary or necessary manner provided for handling such items in his office and take every other action necessary in the issuance of voucher and in the countersigning of warrant or check and see that same is delivered to the relator * * * in proper form for presentation to the County Treasurer or court for payment * *

The controlling question presented is whether the seizure of gambling devices is the duty of the district attorney of Dallas county. Vernon’s Annotated Penal Code of Texas, Arts. 632, 633 and 636, make it the duty of peace officers to execute searches and seizures for gambling devices. Art. 36 of the Code of Criminal Procedure defines peace officers to be: “The sheriff and his deputies, constable, the marshal or policemen of any incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person specially appointed to execute criminal process.”

This Court from an early day has recognized the following rule applicable to officers: “The officer must look to the Act by which his office is created, and its duties are defined, to ascertain the extent of his powers, and the line of his duties; and he is not permitted to transcend the former, nor to vary the prescribed mode of performance of the latter.” Bryan v. Sundberg, 5 Tex. 418.

The statutes quoted clearly demonstrate that the duty to seize gambling equipment in this State is upon peace officers.

The statute under which the district attorney claims the expenditure is authorized provides as follows: “* * * In addition to other sums provided in this section, the district attorney or * * * may be allowed by order of the Commissioners’ Court of his county such amount as said court may deem necessary to pay for, or aid in, the proper administration of the duties of such office, * *

The act further provides: "* * * And such officer shall be entitled to file claims for and issue warrants in payment of all actual and necessary expenses incurred by him in the conduct of his office, such as stationery, stamps, telephone, traveling expenses, * * * and other necessary expenses. * * *” Article 39-12e, § 191.

By the limitations expressed in the next above quoted portion of the statute the district attorney and the commissioners court of Dallas county were limited to the kind of expenditures mentioned in said statute. Since seizure of gambling devices is the duty of peace officers and not the duty of the district attorney and the statutes governing the expenditures of the office of district attorney for expenses specifically limit such expenditures to those named in the statute we are of the opinion that the commissioners court. of Dalla§ county was without authority to allow the expenditures as a necessary expense of the office of district attorney of Dallas county. Casey et al. v. State, Tex.Civ.App., 289 S.W. 428, writ refused. Therefore, the action of the commissioners court in allowing the claim as a necessary expense of the office of district attorney being without statutory authority is void. Howard et ux v. Henderson County, Tex.Civ.App., 116 S.W.2d 479, writ refused; Jeff Davis County v. Davis et al., Tex.Civ.App., 192 S.W. 291 writ refused. Hence, the Auditor of Dallas County properly refused to approve the claim as a legal expenditure of the office of district attorney of Dallas county.

It does not follow from our ruling that an officer whose statutory, duty requires the seizure of gambling equipment could not incur such an expense as here involved so as to present a claim which could be legally paid by Dallas county. That question is not before us for decision.

It follows that the judgments of the lower 'Courts must be reversed and judgment here rendered for plaintiff in error.

Opinion adopted by the Supreme Court.’


source: Caselaw Access Project

author: HICKMAN, Commissioner.

license: Public Domain

text:
    UTILITIES INS. CO. v. MONTGOMERY.
    No. 2305—7482.
    Commission of Appeals of Texas, Section A.
    April 17, 1940.
    John G. Tucker and Orgain, Carroll & Bell, all of Beaumont, and Benno C. Schmidt, of Austin, for plaintiff in error.
    J. T. Lindsey, of Port Arthur, and C. A. Lord, of Beaumont, for defendant in error.
    Robertson, Leachman Payne, Gardere & Lancaster and Touchstone Wight, Gortn-ley & Price, all of Dallas, amici curiae.
   HICKMAN, Commissioner.

This suit was brought by J. T. Montgomery, defendant in error, against Utilities Insurance Company, plaintiff in error, to recover the amount of a final judgment theretofore rendered in favor of Montgomery against Clarence Smith for damages on account of personal injuries sustained by Montgomery in a collision between a Dodge truck in which he was riding and which was being driven at the time by Smith, and an automobile traveling on the highway. In the instant suit judgment was rendered in the trial court that Montgomery take nothing. The Court of Civil Appeals reversed the trial court’s judgment and rendered judgment in .favor of Montgomery against the Insurance Company for the full amount of his judgment against Smith. 117 S.W.2d 486,

The truck which Smith was driving belonged to Jefferson county. Smith was an employee of the county and was authorized to drive the truck. At the time of the collision there was in force an indemnity policy, sometimes called a public liability policy, issued by the Insurance Company to the County Judge of Jefferson county. The policy contained a clause which extended the.coverage to the truck in question and to any person operating same with the permission of the county. The policy also provided that the Insurance Company would investigate all accidents and claims under the. policy and would defend, in the name and on behalf of the county, all suits thereon, even if groundless, of which notice was given to it as required.

Montgomery was an employee of the county and, as such, was exempted from the coverage of the policy. As we understand the record, it is not contended by Montgomery in this suit that under the evidence offered below upon the trial of this case he was covered by the policy. For a statement of his theory we here quote the sole proposition contained in his brief filed in the Court of Civil Appeals. It is as follows: “The defendant insurance company having, and itself assuming to have, a direct interest in the former suit— that is, the suit of J. T. Montgomery v. Clarence Smith — , it took sole charge of the defense and undertook to and did defend said suit so brought against Clarence Smith, and did itself employ and pay attorneys, who conducted such defense for it in the name of Clarence Smith, the defendant in the suit, and did in all respects treat the said Clarence Smith as the assured in the insurance policy in question here and as subject to liability to the plaintiff in that suit for the negligence alleged therein; it is therefore bound and liable for the satisfaction of the said judgment in this case, now .sued on to the same extent as Clarence Smith himself is liable, and it follows that the plaintiff in the present suit is entitled to judgment against the defendant here in the sum of $3,000.00, which is the amount of the former judgment, remaining unsatisfied.”

Shortly after the collision Montgomery’s attorney notified the Insurance Company that the claim had been placed with him, and that an investigation had disclosed that the accident was within the coverage of the policy and in the same notice he demanded compensation. The Insurance Company denied that these injuries came within.the coverage of the policy, and all parties were notified of such denial prior to the filing of the suit of Montgomery against Smith. Notwithstanding the Insurance Company’s depial of coverage, it employed attorneys and defended the suit of Montgomery v. Smith. Before doing so, however, it entered into a contract'with Smith, known as a non-waiver agreement, by the terms of which it was stipulated, in substance and effect, that, by defending the suit, it did not waive its right to rely upon each and every provision of the policy, and did not agree to pay any judgment that might'be rendered in the case. It was further stipulated that its act in defending the suit should not operate as an estoppel against the Insurance Company to rely upon any of the provisions or exclusions of the policy.

It thus appears that Montgomery is seeking a judgment against the Insurance Company upon a risk never assumed by it. If his right to do so is upheld, it must be upon some sound legal principle. The only three principles suggested either in the opinion of the Court of Civil Appeals or in the briefs and argument of counsel are, first, res adjudicata, second, estoppel, and, third, waiver.

It seems obvious that liability cannot be predicated against the Insurance Company on the theory of res adjudicata. To hold such a principle applicable would be to make it liable for the entire amount of the judgment against Smith, even though it should exceed the amount named in the policy. The issue involved in this case was not, and could not have been, litigated in the case of Montgomery v. Smith. The Insurance Company was not a party to that suit, and could not have beep made a party thereto over its objection. Kuntz v. Spence, Tex.Com.App., 67 S.W.2d 254; Moxon v. Ray, 125 Tex. 24, 81 S.W.2d 488; Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482.

Liability cannot be predicated against the Insurance Company on the principle of' estoppel. The elements of estoppel are not present. The Insurance Company did not deceive or mislead Montgomery or cause him to alter his position to his injury. Presumably Montgomery was awarded judgment against Smith for the full amount of his damages, including damages for delay. Montgomery, who claimed that the risk was covered by the policy, could not have been mislead by the act of the Insurance Company in defending the suit. Under his theory that the policy covered the risk, it was its duty to .defend it for Smith. We do not pass upon the question of whether, absent the non-waiver agreement, there might have arisen an estoppel as between the Insurance Company and Smith, but we do hold that under this record liability to Montgomery was not created by estoppel.

Neither can liability be predicated upon the ground of waiver. The Insurance Company has not voluntarily surrendered any known right. On the contrary, it has expressly stipulated in writing against such surrender. We approve the holding of the Fort Worth Court on this question in City of Wichita Falls v. Travelers Ins. Co., Tex.Civ.App., 137 S.W.2d 170.

But it is’ now claimed that the non-waiver agreement was void and should, therefore, be disregarded. The ground of such claimed invalidity is that, by its terms, the Insurance Company contracted to engage in the practice of law contrary to the statute. Vernon’s Texas Penal Code, Art. 430a. The article referred to is long and. will not be copied here. It defines at great length the offense of unlawfully practicing law. It seems clear to us that the non-waiver agreement falls well within this provision of the article. “And provided, further, that nothing herein shall prohibit any insurance company from causing to be defended, or prosecuted, or from offering to cause to be defended, through lawyers of its own selection, the insureds dr assureds in policies isued or to be issued by it, in acordance with the terms of such policies * *

Clearly in this case the Company was not an intermeddler. It had' some contingent interest to protect. While it claimed then, as now, that no liability could attach to it, yet it did not have a judicial determination of that issue for its protection. Montgomery was claiming that the risk fell within the coverage of the policy, and the non-waiver agreement should be considered in the light of the facts and circumstances as they then existed. Thus viewed the Insurance Company was seeking to protect its own interests rather than those of Smith. It was not unlawfully practicing law.

Much reliance is placed upon the case of American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 37 A.L.R. 633. Before pointing out the real question presented in that case and the disposition made thereof by this Court, we direct attention to the fact that the injured third party was not a par.ty to that suit, and the further fact that there was no non-waiver agreement involved. Those facts alone disclose that there are material distinctions between that case and the instant case. However, we deem it advisable to make a further statement regarding that case. It was a suit by the administrator of the insured after judgment had been rendered against the estate in favor of a third party. There was no question but that the risk fell within the coverage of the policy. The question was whether or not the insured could maintain a suit against the Insurance Company until he had paid off the judgment. One of the provisions of that policy, known as Subdivision “L”, was: “No action shall lie against the company for any loss or expense under this policy, unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment, within ninety days from the date of- said judgment and after trial of the issue.” (Italics ours).

The administrator claimed that he had paid the judgment and, therefore, had the right to maintain suit. The Insurance Company claimed that the administrator had not, in fact, paid the judgment, and took the position that, under the provisions of Subdivision “L”, he had no right to maintain the suit. It appeared that the administrator had not really paid the judgment. The question for decision was, therefore, whether he could maintain the suit, a very different question from that before us. This Court upheld his right to do so. Subdivision “B” of the policy there construed provided that “the company, at its own expense, will settle or defend said suit whether groundless or not.” The word “defend”, as used in that setting, was held to mean successfully defend. It was concluded, therefore, that by the terms of Subdivision “B” the Insurance Company obligated itself to pay, to the limit of its liability as named in its policy, any judgment that might be rendered against the insured. Having held that the Insurance Company had entered into that character of obligation in Subdivision “B”, it was further held that the provisions of Subdivision “L” were inconsistent therewith, and that they had been waived.

The construction which has been placed upon that opinion by some of the courts was probably brought about by the fact that in one paragraph thereof it was stated that it appeared that the judgment might have been binding upon the Insurance Company under the general rule, that is, under the rule of res adjudicata. That was suggested as a probable additional ground for upholding the judgments of the lower courts. Under decisions of this Court cited above, rendered since the Fellbaum case, it could not now be held, with any degree of consistency, that the doctrine of res adjudi-cata has application, since insurance companies cannot properly be made parties to suits of the nature of the instant one.

The policy in this suit does not contain language like sub-section “B” of the policy in the Fellbaum case. The obligation in this policy is: “The Company will investigate all accidents and claims covered hereunder, and defend in the name and on behalf of the Assured all suits thereon, even if groundless, of which notices are given to it as hereinafter required; * * * but the company reserves the right to settle any such claim or suit.”

Clearly the word “defend” as there used should be construed not as an absolute obligation'to defend successfully, but as an obligation to contest the suit to a final judgment.

We do not deem it necessary to discuss the various opinions of courts of civil appeals relied upon to support the judgment of the Court of Civil Appeals in this case. It is sufficient for the purpose of this opinion to point out that in none of those cases was the suit by a third party against an insurance company which defended under a non-waiver agreement with the insured. After mature consideration we are well convinced that under no sound principle of law could the non-waiver agreement in this case be disregarded and a liability never assumed by the Insurance Company be thereby imposed upon it.

It is accordingly ordered that the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.

Opinion adopted by the Supreme Court.


text:
    GULF PIPE LINE CO. v. NEAREN et al.
    No. 7375.
    Commission of Appeals of Texas, Section B.
    April 17, 1940.

      C. T. Duff and Duff & Cecil, all of Beaumont, John E. Green, Jr., and John P. Bullington, both of Houston, Peveril O. Settle and William L. Wise, both of Ft. Worth, and B. C. Clark, of Houston, for plaintiff in error.
    E. B. Votaw, of Beaumont, for defendants in error Mann and others.
    Howfh, Adams & Hart, of Beaumont, for defendants in error Fall and others.
    Robert L. Sonfield, of Houston, for in-terveners.
   SLATTON, Commissioner.

Defendants in error executed a division order to the Gulf Pipe Line Company containing the following provisions:

“First — The oil run in pursuance of this division order shall become the property of the Gulf Pipe Line Company as soon as the same is received into its pipe lines.
“Second — The oil received in pursuance of this division order shall be paid for to the party or parties entitled thereto, according to the division of interest shown above, at the- price for each day’s receipts posted on -that day by the Gulf Pipe Line Company, for the same kind and quality of oil in the field in which it is received. Settlements therefor shall be made semimonthly. For the amount due on account of the oil received during the first fifteen days of each calendar month, payment shall be made on or before the twenty-fifth day of such month; and for the amount due on account of the oil received during the balance of such calendar month, payment shall be made on or before the tenth day of the succeeding month. These payments are to be made in checks of the Gulf Pipe Line Company, to be mailed or delivered to the parties thereto entitled.
“Third — The Gulf Pipe Line Company may refuse to receive any oil which may not be merchantable. If necessary to make it so, oil shall be steamed ór treated by the well owners before receipt by the pipe line. Upon receipt of the oil the company will make proper deduction for all of the dirt, sediment or other foreign matter in the oil. In addition, the Company will deduct one (1%) per cent to cover loss in handling. Further correction will be made for temperature of the oil purchased, by deducting or allowing on the basis of one twenty-fifth (l-25th) of one (1%) per cent for each degree Fahrenheit above or below sixty degrees Fahrenheit. In making settlement the Gulf Pipe Line Company’s grades and measurements shall govern and control.
“Fourth — The undersigned agree, in case of any adverse claim of title to the oil run hereunder, or any part thereof or to the land from which it is run, to furnish to the Gulf Pipe Line Company satisfactory evidence of title, or, in case of failure to do so, to furnish satisfactory indemnity bond, on reasonable demand, against such adverse claim or claims; and that the Gulf Pipe Line Company may retain the purchase price of the oil until such bond shall be furnished, -or until the dispute as to ownership is settled, so as to relieve the Company from all liability for oil received.”

The pipe line received and paid for the royalty oil belonging to-defendants in error to September 1, 1927, subsequent to that date the Pipe Line Company received under the division order royalty oil belonging to the defendants in error Manns of the value of $14,014.48 and to defendants in error Nearens $19,620.70, for all of which the Pipe Line Company refused payment on the ground that there was an adverse claim made to the title of the Trenton Rock Acre and the value of the oil produced therefrom.

Plaintiff in error duly notified defendants in error of the adverse claim and requested that a satisfactory indemnity bond be furnished the -Pipe Line Company. Defendants in error refused to furnish a satisfactory indemnity bond. Defendants in error made settlement with the claimants of the adverse assertion of title and demanded payment for the oil with interest thereon from the date that the same was due and payable under the second section of the division order. Upon refusal of the Pipe Line Company to pay the demands of defendants in error this suit was filed seeking a recovery of said sums, together with interest thereon as aforesaid. The adverse claimants intervened. The trial court granted judgment as prayed for by the defendants in error and allowed the interveners a recovery of $1,000 of a part of each defendants in error Manns and defendants in error Nearens, amounting in the aggregate to the sum of $2,000. The Pipe Line Company prosecuted its appeal in each of the causes to the Court of Civil Appeals of Texas sitting at Beaumont. The judgment in favor of the Manns was affirmed in its entirety. The judgment in favor of the Nearens was in part affirmed and in part reversed and remanded for another trial. 111 S.W.2d 335. The Pipe Line Company sued out writs of error in each cause, both of which were granted. The Court of Civil Appeals stated in its opinion that the interveners, by their intervention and acceptance of judgment against the Pipe Line Company in each case in the sum of $1,000 as a part of the royalty money due the Manns and the Nearens, were estopped to prosecute other suits pending in which, it was contended, that the land from which the oil was produced was in another and different survey than the John Douthit Survey in Jefferson County. It is unnecessary for us to pass upon the correctness of that conclusion because plaintiff in error has not assailed the judgments of the trial court and Court of Civil Appeals which awarded defendants in error the value of the aggregate oil runs in its applications for writs of error except the assertion that such sums were barred by the two and four-year statutes of limitation. These assignments are obviously without merit in view of our ruling hereinafter to be made. ■ The inter-veners filed no’motion for rehearing in the Court of Civil Appeals but appear in this court asserting that the action of the Court of Civil Appeals was fundamentally erroneous. The interveners are not entitled to assign error in this court under the above facts even though, such errors are claimed to be fundamentally erroneous'. Gráyce Oil Co. v. Peterson,. 128 Tex. 550, 98 S.W.' 2d 78i: " ' ' ■

The real issue, as presented in this Court, between the-Pipe Line Company and defendants in error Manns and Nearens, is whether or not under the provisions of the division order the defendants in error are entitled to interest from the time as provided in the second section of said division order or from the time provided for in the fourth section of said division order. We have a written contract by and between the Pipe Line Company and the royalty owners of the oil wherein no interest is provided in said written contract. If any interest is payable thereunder it is in virtue of an article of the Texas statute which is known as Vernon’s Annotated Revised Civil Statutes of Texas 1925, Article 5070, which provides: “When no specified rate of interest is agreed upon by the parties, interest at the rate of six per cent per an-num shall be allowed on all written contracts ascertaining the sum payable, _ from and after the time when the sum is due and. payable.” The query then arises under the division order: When was the royalty oil purchased by the Pipe Line Company due to be paid to the owners thereof by the purchaser, the Pipe Line Company?

The Honorable Court of Civil Appeals at Beaumont took the view that the purchase price for the oil received by the Pipe Line Company became due and payable as provided under the second section of the division order, that is, that the purchase price shall be made on or before the ,25th day of such month and for the amount due on account of the oil received during the balance of- such calendar month payment shall be made on or before the 10th day of the succeeding month. . If there had been no adverse claims asserted to the royalty oil there could be^ no doubt but that this could be a correct conclusion. However, in the fourth section of the division order the defendants in error agreed in case of any adverse claim of title to the oil run hereunder, or any part thereof, or to the land from which it is run, to furnish to the Gulf Pipe Line Company satisfactory evidence of title or in case of failure to; do so to -furnish satisfactory indemnity bond on reasonable demand against such adverse claim or.claims and that the Gulf Pipe Line Company may retain the purchase price of .the .oil until such bond shall be furnished or until the disputé as to ownership is settled so as to relieve the company from all liability'-of oil received.

Under the fourth section it is clear to our minds that the parties intended to provide, for alternative provisions in which a postponement of the time when the purchaser of the oil would have to pay for it until the adverse claim was settled or until a satisfactory indemnity bond was furnished to the oil company. The Pipe .Line Company had no right to determine which claimant owned the oil and was not obligated under the division order to litigate the question of ownership for the defendants in error with adverse claimants. Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242. As soon as the Pipe Line Company had notice of an adverse claim being asserted it had the right to notify the defendants in error and to demand an ■ indemnity bond. When such indemnity bond was refused after reasonable demand, under the specific terms of the division order, the Pipe Line Company had the right to retain the purchase price of the oil. It has been ruled in this state that where a promise is conditioned upon the' happening of a future event as a rule a condition precedent must bé exgctly performed or fulfilled before the promise can be'enforced. Reagan v. Bruff, 49 Tex.Civ.App. 226, 108 S.W. 185; Cooksey v. Jordan, Tex.Civ.App., 140 S.W. 1175. It was decided that “It is quite elementary that an instrument payable upon a condition which does not import an absolute liability is not payable until that condition has happened.” Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894, 900. It is also elementary that a party to a contract who is himself in default cannot maintain a suit for its breach. Smith v. Fort, Tex.Civ.App., 58 S.W.2d 1080. It seems to us that the purchase price of the royalty oil under the division order is not due and payable until the disputes as to ownership have been settled or a bond is furnished. Concededly no bonds were furnished. The purchase price of the oil ¡under the facts of this case not being due and payable until the adverse claim was extinguished forces ■ the conclusion that the defendants in error are not entitled to collect interest until the trial court’s judgment was entered in this case which settled and extinguished the dispute as to the adverse claims made by the interveners herein. ■

The quoted article of the statute has no application except on written contracts. The case of Yaws v. Jones, Tex.Sup., 19 , S.W. 443, which was cited as án authority by the Court of Civil Appeals, can have no application to the case before us because in that case there was a contract which specified a rate of interest which was agreed on by the parties. In the case of Kishi et al. v. Humble Oil & Refining Company et al., 5 Cir., 10 F.2d 356, a division order was not involved, and, it has been pointed out by another circuit, has no application to a case in which there is a written contract between the parties.

It is contended by the defendants in error that because the Pipe Line Company, following its general denial, asserted certain limitation pleas to the cause of action asserted by the defendants in error that the plaintiff in error is not a disinterested Stakeholder and because it failed to tender into the registry of the court the purchase price of the oil that it should be made to pay interest thereon. That proposition can have no application to the case here presented. In the first place, defendants in error claimed interest in virtue of the division order and the quoted statute. The recoveries by interveners of substantial judgments in these cases foreclose any assertion by the defendants in error that such claims as to the Pipe Line Company were not bona fide “adverse claims” within the purview of the division order. The defendants in error not only ..demanded the purchase price of the oil but demanded interest from the time that it was delivered to the Pipe Line Company. The defendants in error’s refusal to accept the principal without interest from the time the oil was rim makes a formal, tender unnecessary and is equivalent to a valid tender. Bluntzer v. Dewees, 79 Tex. 272, 15 S.W. 29. In 40 Tex.Juris. page 840, 841, it is said: “Since payment of a debt implies capacity and willingness on the part of fhe creditor to accept an unconditional offer of payment in full discharge, formal tender of payment is excused where -the creditor has signified that he is unwilling, to accept the money or thing due as a discharge of the debt and the refusal of the creditor to accept the amount offered makes it unnecessary for the debtor to produce the medium of payment.” Since, in our opinion, the defendants in error, áre not entitled to interest from the dates that the oil was run, it is our opinion that the judgment of the trial court allowing a recovery on behalf of the defendants in error for the purchase price of the oil should be affirmed, and that part of the judgment of the trial court and the Court of Civil Appeals allowing judgment for the interest should be here reversed, and judgment rendered in favor of the plaintiff in error. In view of our ruling, there is no necessity of any remanding of the case as to defendants in error Nearens.

Opinion adopted by the Supreme Court.


text:
    GULF PIPE LINE COMPANY, Plaintiff in Error, v. Mrs. Jeanette MANN et al., Defendants in Error.
    No. 7374.
    Commission of Appeals of Texas, Section B.
    April 17, 1940.
    C. T. Duff and Duff & Cecil, all of Beaumont, John E. Green, Jr., and John P. Bullington, both of Houston, Peveril O. Settle and William L. Wise, both of Ft. Worth, and B. C. Clark, of Houston, for plaintiff in error.
    E. B. Votaw, of Beaumont, for defendants in error Mann and others.
    Howth, Adams & Hart, of Beaumont, for •defendants in error Fall and others.
    Robert L. Sonfield, of Houston, for in-■terveners.
   SLATTON, Commissioner.

This cause has been decided with the ■cause of the Gulf Pipe Line Company, plaintiff in error, v. W. S. Nearen et al., 138 S.W.2d 1065, defendants in error, and for the reason therein stated the judgment ■entered by the trial court and affirmed by *the Court of Civil Appeals, which allowed the defendants in error a recovery for the purchase price of the oil, is affirmed, and tthat part, of the judgment of the trial court and the Court of Civil Appeals allowing judgment for interest is here reversed, and judgment rendered in favor of the plaintiff in error.

Opinion adopted by the Supreme Court.


author: BEAUCHAMP, Judge.

text:
    HERNANDEZ v. STATE.
    No. 20999.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Hal O. McConnell, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for the unlawful possession of Marihuana, a narcotic Drug; penalty assessed at confinement in the penitentiary for two years.

The indictment appears regular. The record is before this court without statement of facts or bills of exception. No error having been presented requiring a reversal, the judgment of the trial court is affirmed.


author: KRUEGER, Judge. .

text:
    WATTAM v. STATE.
    No. 21074.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Evans J. Adkins, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge. .

The offense is prescribing intoxicating liquor for purposes other than medicinal in a dry’area by a physician licensed to practice medicine. The punishment assessed is a fine of $100.

Appellant challenges the sufficiency of the evidence to warrant and sustain his conviction. The indictment appears to be in due form. It charges that on the 30th day of September, 1939, Jas. M. Wattam, a physician, licensed to practice medicine in this state, did in the County of McCulloch- and State of Texas prescribe whisky to J. C. McWilliams, for other than medicinal-purposes after an election had been held by the qualified voters of said county to determine whether or not the sale of intoxicating liquor should be prohibited in such-county, and such election resulted in favor of prohibiting the sale of intoxicating 1‘iq'-uor, etc. To meet the allegations in the indictment, the State was required to prove that appellant was a physician, duly licensed to practice medicine in this state. Appellant’s contention is that the State failed to introduce any evidence whatever showing that he was a physician licensed to practice medicine in this state. We are inclined to agree with him. The only evidence which would tend to show that appellant claimed to be engaged in the practice of medicine came from his lips'. He testified: “I only write liquor prescriptions-for medicinal purposes. I do not make a physical examination when I prescribe liquor for patients. I do not think it necessary. I prescribe liquor for various ailments.”

That is all the testimony on the-subject which appears in the record. Appellant may have prescribed whisky and not have had a license to practice medicine and' might be guilty under subsection 18 of section 15 of Article 1 of the Texas Liquor Control Act, but in the instant case he was charged with being a physician, licensed to practice medicine in this state, and as such physician did prescribe whisky other than for medicinal purposes. It will be noted that a physician, licensed to practice medicine in this state, may legally prescribe liquor for medicinal purposes, provided he does not prescribe more than one pint to-any person in any one day, but if he prescribes it for any other purpose he violates the law whether-it be one-half pint or more. Consequently, it devolved upon the State, under the charge in the indictment, to-prove that appellant was a physician, licensed to practice medicine in this state, and that he prescribed liquor for á purpose other than medicinal. Having failed so to-do, the State’s proof fails to sustain the averment in the indictment; consequently, we are constrained to reverse this case. In-support of what we have here said we refer to the case of McRuffin v. State, 136 Tex.Cr.R. 328, 125 S.W.2d 303.

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: HAWKINS, Presiding Judge.

text:
    LEWIS v. STATE.
    No. 21052.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    W. A. Hogan, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for selling whisky without "having obtained a permit from the Texas Liquor Control Board. Punishment was -assessed at a fine of $250.

The indictment seems to be in regular form. No statement of facts or bills of ex■ception are found in the record. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    FISHER v. STATE.
    No. 21034.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Tom B. Scott and John E. V. Jasper, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was charged with burglary, and by further proper averments it was also alleged that he had theretofore been convicted of two successive felonies prior to the commission of the instant burglary charged, and the verdict of the jury found him guilty of the present burglary charge and also that he had previously been convicted of the successive felonies alleged in the indictment, whereupon the court assessed his punishment at confinement in the penitentiary for life under the habitual criminal statute.

The indictment properly charges the present offense and also properly charges the prior felony convictions. The record contains no statement of facts and no bills of exception are brought forward.

In such condition nothing is presented for review, and the judgment is affirmed.


author: B.EAUCHAMP, Judge. .KRUEGER, Judge.

text:
    BUCHANAN v. STATE.
    No. 20859.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.
    ' W, A. Culwell,, of Amarillo, for appellant. •
    Lloyd' W. Davidson, State’s Atty., pf Austin,-, for the State.
   B.EAUCHAMP, Judge.

Appellant-was charged by complaint arid information with the offense of- being an accomplice to misdemeanor theft, and upon-his conviction in the County Court, was sentenced to confinement in the county jail fqr ninety days.

• Jim Stokes, who was named as the principal offender in the alleged' transaction, testified that-he and appellant had entered into an agreement whereby Stokes, was to steal some automobile -tires, that appellant was to ,sell; them and-that they would then divide the proceeds. In accordance with this agreement, Stokes entered the garage of one Lester Stone in Amarillo, Texas, on the night of January 29, 1939, and removed from a Chevrolet automobile, three wheels with the tires and tubes, which had an estimated value of $22.50. Stokes hid these wheels and tires in an alley in the vicinity of Stone’s home about 1 o’clock in the morning. He then proceeded to contact the appellant, who secured the services of a negro taxi driver to go with him and Stokes to take the tires to some other place. They did not explain to the taxi driver, however, the purpose of the call, and as they came to the intersection of the alley with the street, they stopped and Stokes went to the place where he had left the tires while appellant remained in the car. As Stokes approached, he found officers waiting for him. The officers fired at him as he ran but he succeeded in making his escape. When the officers began shooting, the appellant directed the taxi driver to get away as soon as possible. Appellant denied any knowledge of the purpose which Stokes had in going into the alley. The State’s Attorney has conceded error in this case on the ground that the appellant was convicted in a misdemeanor case as an accomplice. Branch’s Ann.Tex. P.C., p. 357, sec. 699, reads as follows: “There is no distinction between principals and accomplices in misdemeanors; a party who would be an accomplice if the offense was a felony is a principal if the offense is a misdemeanor. If the defendant comes within either the definition of an accomplice or a principal he is a principal in a misdemeanor.”

The appellant could not be convicted in the manner charged by the court.

The judgment is reversed and the cause-remanded.

On State’s Motion for Rehearing.

.KRUEGER, Judge.

The County Attorney of Potter - County, in behalf of the State, has filed a motion for rehearing in this case. He-contends that we erred in holding that • appellant, who was charged as an accom--lice to a misdemearior theft, could not be convicted as such. It may be that the opinion is subject to such construction. However, we disclaim any intention of making any distinction between principals- and. accomplices in misdemeanor cases.. We recognize the doctrine that in misdemeanor cases there are no accomplices: All parties connected with the commission-of an offense, classed as a misdemeanor, are principals. But in no event can this-conviction stand for the reason that all the testimony relating to appellant’s con--nection with the offense comes from the confessed thief, Jim Stokes, and his testimony is not corroborated as required by law. See Art. 718, C.C.P.; Durham v. State, 106 Tex.Cr.R. 85, 290 S.W. 1092; Mann v. State, 102 Tex.Cr.R. 34, 276 S.W. 1100; Askew v. State, 128 Tex.Cr.R. 223, 80 S.W.2d 990.

The motion for rehearing is overruled.


author: GRAVES, Judge.

text:
    STATEN v. STATE.
    No. 21040.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Robert C. Benavides, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The conviction is for murder with malice; the punishment assessed is confinement in the State penitentiary for a term of thirty years.

The record before this court contains neither a statement of facts nor bills of exception, hence nothing is presented for review. ■ The indictment seems to be regular. The motion for a new trial contains matters alleged to be errors committed upon the trial of this cause, which we are unable to correctly appraise on account of the absence of a statement of facts and bills of exception.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    ALMAGER v. STATE.
    Na. 21048.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Magdaleno Almager, of El Paso, in pro. per.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Santos Valenzuela by cutting him with a knife.

The homicide occurred in a field where deceased, the appellant, and other parties were picking cotton. According to the testimony of the state, while appellant and deceased were engaged in a fist fight appellant drew a knife with a long blade Deceased ran in an effort to save his life, Overtaking him, appellant held deceased and stabbed him to death.

It was appellant’s contention that he was being attacked by deceased and others, and was swinging his knife to-protect himself at the time he stabbed deceased. He testified further that the knife he was using had a blade about one inch in length'.

We deem the evidence sufficient to support the judgment of conviction.

No bills of exception are brought forward and no exceptions were leveled at the charge of the court.

The judgment is affirmed.

PER CURIAM.

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


text:
    ALLRIDGE v. STATE.
    No. 20994.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Henry Taylor, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of $50 and confinement in jail for 15 days.

The offense of driving an automobile on a public highway while intoxicated is a felony. Hence it was necessary to sentence the appellant in order to confer jurisdiction upon this court. No sentence appears in the transcript. Under the circumstances, the appeal must be dismissed.

The appeal is dismissed.

PER CURIAM.

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


author: KRUEGER, Judge.

text:
    LUNA v. STATE.
    No. 21051.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Jake J. Reich, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the offense of contributing to the delinquency of a child; Penalty assessed at confinement in the county jail for ninety days.

The complaint and information are sufficient to charge the offense. The record is before us without a statement of facts or bills of exception. All procedural matters appear to be in due order.

The judgment is affirmed.

PER CURIAM.

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


text:
    KELLY v. STATE.
    No. 20763.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    On Motion to Reinstate Appeal March 20, 1940.
    Rehearing Denied April 24, 1940.

      J. F. Harrington, of McKinney, for appellant. .
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Collin County upon complaint and information charging that he unlawfully prescribed more than one pint of whisky in one day to P. S. Gibbs. His punishment was fixed at a fine of $150.

The record contains no such notice of appeal as will confer jurisdiction upon this court under the terms of Article 827 C.C.P., which requires that the notice be “entered of record”. The transcript in the present instance shows a “docket entry”, but fails to show that this was ever carried into the minutes of the court. Casey v. State, 116 Tex.Cr.R. 111, 32 S.W.2d 461; Rodriguez v. State, Tex.Cr.App., 132 S.W.2d 867, and cases there cited.

The appeal is dismissed.

On Motion to Reinstate Appeal.

The record having been corrected so as to show the entry of notice of appeal in this case, the former order of the court dismissing the appeal is set aside and the case will be considered on its merits.

The appellant, a physician, filed a motion for a continuance setting up the fact that “he is 72 years of age and does not feel that he is able to stand the nervous strain and physical endurance of attending trial of the above case at this time.” He attached a physician’s certificate which, to some extent, sustains his contention, but which is primarily based on the appellant’s statement to the doctor. His motion presents a question of fact which the trial court did not sustain.' There is nothing to indicate any abuse of the discretion lodged in the county judge and it is not within the province of this court to say that he committed reversible error in forcing appellant to trial.

In a rather lengthy motion in the case he asked for a new trial. It was his claim that the evidence is insufficient to warrant a conviction; that the evidence shows conclusively a prescription written to W. W. Reed and one to P. H. Gibbs; that the only evidence showing Gibbs and Reed to be the same person was that from P. H. Gibbs, an inspector for the Texas Liquor Control Board; that the statute under which he was prosecuted (Subd. 18 of Art. 666 — 15, .Vernon’s Ann.P.C.) is unconstitutional and void and is violative of the Bill of Rights of the Texas Constitution as an invasion of a field of action resting in the trained and discretionary power of a physician. It is further alleged that only a trained and experienced physician can know and ascertain the amount of intoxicants or pain-relieving medicine, such as liquor, that a patient should use in a given period of time and that a hard and fast rule, as set up by this statute, could only lead to the enlarging, rather than the relieving, of human suffering and might further, rather than relieve, human deaths.

As we understand the objection, it is in short a challenge to the power of the people themselves, through any form, to place upon themselves or the physicians which they license, such restraint as is described in the statute. ‘

Under the Constitution of the United States, all power not specifically delegated to the Federal Government, is retained by the people. They have the right to give unto the State Government such proper governmental power as has not theretofore been delegated to the Federal Government. If the people themselves have a right in any governmental matter, they have the power to delegate that to the state unless they have previously lodged it in the Federal Government. The adopted method for doing this is through our Constitution. Individual rights and liberties may not come within governmental functions so long as they do not, directly or indirectly, affect others than the individual himself, but when deemed to be essential to the safety, health, peace, good order and morals of society, they become proper subjects for the application of governmental function. It has been said: “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will.” It becomes liberty regulated by law. The right to acquire, enjoy and dispose of property is an inalienable right of man, but the right of the state to regulate the acquisition, enjoyment and disposition of property may not be questioned. The right to enjoy property must be so exercised as not to impair the equal ■enjoyment by others of their property. It has long since been determined that the state has a right to regulate the practice of medicine, of law, and more recently, of many trades and professions. Increased population, superior knowledge of sanitation and health conditions, continually develop an increased demand and new knowledge of the necessity for further regulation. No individual in any government of any form among civilized men can have rights superior to that of the public.

License to a man to practice his profession does not mean that he is privileged to act without restraint of law. Usually the function of a license is to place one in a class to be regulated in conformity with the established rules for that class.

The power in a government to prohibit the sale of an article or the doing of a thing of necessity carries with, it the lesser power,—that of regulation. That the state has power to prohibit the sale of intoxicating liquor in any amount, when authorized to do so by the Constitution, is no longer a subject of debate. Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365.

In Ex parte Roper, 61 Tex.Cr.R. 68, 134 S.W. 334, Judge Ramsey, writing for this court, forcefully sustained the state’s power of regulation on the subject, holding that the state is interested in the character of its people no less than in their health or personal safety, from which flows the conclusion that the right of a physician to use his judgment cannot supersede the right of the people in their judgment to care for and protect, foster and develop, the conditions and the morals of the community, inevitably placing its imprint on those who, by force of circumstance, happen to be reared or privileged to rear their children in such community.

In Edgar v. State, 46 Tex.Civ.App. 171, 102 S.W. 439, 442, the court, in discussing the constitutional right of the Legislature to regulate the sale of liquor for medicinal purposes, gave this statement: “The tenth assignment of error, attacking the constitutionality of the act in question on the ground that the Legislature cannot license or regulate the sale of liquor for medicinal purposes in a local option district, is without merit.”

The physician deals with the life, health, morals and comforts of the people. These are proper subjects for regulation by the state under its police power.

11 Amer.Jur. p. 1044, sec. 284, holds that those engaged in the practice of dentistry, as well as medicine, surgery and related vocations, are subject to legislative regulation. Such vocations being subject to regulation, will include all of its incidents.

The power and right of the peo-pie, through its Constitution and laws, to license the practice of medicine, carries with it, without question, the right of the people to regulate such practice. 21 R. C. L. p. 363, par. 10; Butcher v. Maybury, D.C., 8 F.2d 155.

It is further held that while the license to practice is a property right and a valuable one, it is nevertheless subject to revocation for good cause. 11 Amer. Jur. p. 1033, sec. 275; 37 C.J. p. 168; Newson v. Galveston, 76 Tex. 559, 13 S.W. 368, 7 L.R.A. 797; State ex rel. McNamara v. Clark, 79 Tex.Cr.R. 559, 187 S.W. 760; Prater v. Storey, Tex.Civ.App., 249 S.W. 871.

In our view, the Legislature had authority to enact the statute in question under Art. 16, Sec. 20 of the Constitution as adopted in 1935 (Vernon’s Ann. St.).

A further question is raised as to what constitutes a “day”. This, we think, has been settled in Muckenfuss v. State, 55 Tex.Cr.R. 229, 116 S.W. 51, 20 L.R.A., N.S., 783, 131 Am.St.Rep. 813, 16 Ann. Cas. 768. A “day” is held to be from midnight to midnight, a period of twenty-four hours. Where the word “day” is used, it has been uniformly held to mean twenty-four hours, as defined in this case. See also Vol. 1 Words & Phrases, Second Series, page 1207.

The appeal presents no error requiring further consideration, and the case is accordingly affirmed.


text:
    McCOY v. STATE.
    No. 20979.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    J. T. Kelley, of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Conviction is for receiving and concealing stolen property of a value in excess of fifty dollars; punishment, two years in the penitentiary.

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

The judgment is affirmed.


author: BEAUCHAMP, Justice. GRAVES, Judge.

text:
    SHELTON v. STATE.
    No. 20734.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.
    Owen & Bohannan, of Brownwood, for , appellant.
    Xloyd ,W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Justice.

The appeal- is .from a fine of $100 assessed against the appellant on a charge of violating the Local Option Law, Vernon’s Ann.P.C. art. 666 — 1 et seq., in Brown County.

The appellant operated a cafe in the front of which was á sign which read, “Shelton’s Cafe”. V. L. Delaney, representing the Texas Liquor Control Board, entered the place and approached the appellant, who was leaning up against the counter near the front, and asked him for some whisky. To this the appellant replied that he would sell it to him but that “you can’t take the whisky out of the cafe”. He then directed the witness to Emmett Mc-Combs, who went with him into the kitchen and,sold him two drinks of liquor out of a bottle. The witness swallowed the first drink which he purchased but transferred the second to a tobacco can and kept it for evidence.

The prosecution is upon a complaint and information, the .material allegation in the information being as follows: “Arthur Shelton on or about the 24th day of March, A. D., 1939, and before the filing of this Information, in the County of Brown and State of Texas, did then and there unlawfully operate and assist in operating an open saloon on the premises located at No. 110 Brown Street, in the city of Brown-wood, Brown County, Texas, there situate, said premises then and there being a place where alcoholic beverages, to-wit, liquor (whiskey), manufactured in whole atid in part by the process of distillation, and alcoholic beverages, to-wit, liquor (whiskey) composed and compounded in part of distilled spirits, were then and there sold and offered for sale for beverage purposes by the drink; and was then and there a place where such liquors were then and there sold and offered for sale for human consumption on the said premises where the same were sold and offered for sale.”

The further allegation is made in the information to the effect that an election had been held to prohibit the sale of liquors in Brown County, and it was admitted in evidence that local option was in effect in said county.

The principal contention on this appeal is that the evidence is insufficient to sustain the conviction. There was a conflict between the evidence of the state’s witness and that of the appellant. The province of the jury was to decide which of them correctly stated the facts. The statement of the evidence amply sustains the jury’s verdict under, the allegations.

It is also contended that under the Liquor Control Act, no violation of the law is alleged in the information. Article 666 — 3, Vernon’s Ann.Penal Code, in defining an “open saloon,” is as follows:

“(a). The term ‘open saloon’ as used in this Act, means any place where any alcoholic beverage whatever, manufactured in whole or in part by means of the process of distillation, or any liquor composed or compounded in part of distilled spirits, is sold or offered for sale for beverage purposes by the drink or in broken or unsealed containers, or any place where any such liquors are sold or offered for sale for human consumption on the premises where sold.
“(b). It shall be unlawful for any person, whether as principal, agent, or employee, to operate or assist in operating, or to be directly or indirectly interested in the operation of any open saloon in this State.
“(c). It shall be unlawful for any person to whom a Wine and Beer Retailer’s Permit or Beer Retailer’s License has been issued or any officer, agent, servant, or employee thereof to have in his possession on the licensed premises, any distilled spirits or any liquor containing alcohol in excess of fourteen (14) per centum by volume.”

' While subdivision (b) of Section 4, of Article 666 of the Penal Code prohibits the sale of whisky, beer, etc., in dry areas under any and all circumstances, the sale of such liquors in an “open saloon” is prohibited in the State of Texas without reference to whether or not the sale of liquor under other conditions is prohibited or allowed.

This is a case of first impression where we are asked to determine whether or not the law forbidding an “open saloon” applies to the “wet” or to the “dry” territory within the state. It is our view that the law prohibits an open saloon within the state without reference to other conditions, and that the operation of an open saloon, as defined by statute, is a violation of the law. wherever situated.

Section 20 of Article 16 of the Constitution, Vernon’s Ann.St., reads in part as follows: “(a) The open saloon shall be and is hereby prohibited. The Legislature shall have the power, and it shall be its duty to define the term ‘open saloon’ and enact laws against such.”

When the people of Texas voted upon the constitutional amendment embracing the foregoing inhibition, it was without condition-or limitation.-' The Legislature, in passing the act defining an “open saloon”, did so for the entire state. If it be true that they had in mind to prohibit the sale of liquor by the drink in the territory where it is authorized to be sold by the package, it does not follow that they intended to apply the open saloon law only to such territory. The Constitution prohibited the open saloon anywhere within the state and enjoined upon the Legislature the duty to enact laws accordingly. The act is a general law applying to the entire state, and in the absence of specific wording making the- limitation, we feel that this court should not so construe it.

It has been argued in this case that it would be a vain and foolish thing to prohibit the sale of liquor by the drink when under the local option provisions the sale had been -prohibited in that territory in any and all forms. Under some conditions this argument might be logical but it is not necessarily conclusive under any condition. The history of legislation prohibiting the sale of intoxicating liquors in Texas will not aid in sustaining such a conclusion. Prior to the adoption of the Eighteenth Amendment and prior to the inhibition of the sale of liquor in the State of Texas,, we were operating under a double form of statute by which one sale in local option territory was prohibited and punished as a misdemeanor. Note that it was a violation of the law to make even one sale. At the same time, the law prohibited one from engaging in the business and occupation of selling liquor. It might as well be argued that if one sale should be prohibited, the Legislature was doing a vain and foolish thing to make it a felony for one engaging in the business and occupation. Yet, that was a plain provision of the law which was never successfully challenged, and there is no holding that the latter applied to a limited territory. The only force of this illustration is that answering the argument for the implied construction that the open saloon statute would not apply to a dry territory. In the absence of any limiting provision, we think that the statute hereinabove quoted applies to Jhe entire state and that one may be violating the law by operating an open saloon in a territory where the Local Option Law is in effect as well as in any other part of the state, if he is engaged in selling liquor by the drink in the manner defined by law.

The case is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant contends in his motion that the facts herein are insufficient to show that he was engaged in the business of running an open saloon.

The testimony shows that appellant was present in the Shelton cafe in Brownwood when an agent of the Liquor Control Board entered therein and asked for a sandwich, and appellant told one McCombs to fix him a sandwich, McCombs and the agent went back into the kitchen of the cafe. The agent had previously asked appellant for some whisky. Appellant said “I’ll sell it but you can’t take the whiskey out of the cafe. Arthur Shelton said that McCombs would wait on me. * * * After I (the agent) went with Emmett McCombs back into the kitchen of the cafe I bought two drinks of whiskey from Emmett McCombs and paid him IS’ cents each for the two drinks of whiskey. * * * I bought the whiskey from Emmett McCombs and paid him for it, in the Shelton cafe, while Arthur Shelton was in the cafe.”

It seems to us that whisky was sold and offered for sale by the drink in this cafe, and that the appellant was concerned therein. That this fulfilled the definition of the phrase “open saloon” as contained in the statute. In the original opinion we held that the statute denouncing the operation of an open saloon is operative throughout the area of the whole State,, and in our judgment the facts show that appellant has violated the statute prohibiting such operation.

It is objected that only two sales off liquor by the drink does not constitute the operation of an open saloon. The law denouncing such operation does not require that any sale be made. It will be observed that the statute defining an open saloon says in part: “ * * * or any liquor * * * is sold or offered for sale for beverage purposes by the drink * * *' or any place where any such liquors are sold or offered for sale for human consumption on the premises where sold.”

The motion is overruled.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    AUSTIN v. STATE.
    No. 20733.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.

      Owen & Bohannan, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a fine of $200 imposed by the County Court of Brown County on a charge of violating the Local Option Law. Vernon’s Ann.P.C. art. 666—1 et seq.

The charge is the same as that in the case of Arthur Shelton v. State, Tex.Cr.App., 138 S.W.2d 1078, from Brown County, this day decided by the court. The questions of law raised are identical, and the opinion in that case is referred to and adopted herein so far as the questions of law are concerned.

J. M. Rich testified that on the first day of April, 1939, he went into the Crystal Cafe in Brownwood with a companion and ordered some sandwiches. He then asked appellant if they could get something to drink. ' He consented and took them to the back part of the cafe to a party named Shelby Walker and told him to let them have what they wanted. They asked him for a drink of whisky. He poured it out and sold it to them for which the witness paid fifteen cents. The witness then wanted to buy a half pint. Walker consulted the appellant in the hearing of the witness and it was agreed between them that they would sell the witness one-half pint, which they did for the consideration of seventy-five cents.

Appellant introduced no witnesses and made no denial of these facts. The evidence supports the verdict.

The case is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion because the court did not give in charge to the jury the law of circumstantial evidence. The evidence is short, and is epitomized in the original opinion herein. From such evidence we gather that the sale of this whisky was made by appellant operating through his agent, Shelby Walker. It will be noted that the State did not rely upon circumstantial evidence in order to establish its case, but instead had direct testimony that appellant directed his agent or employee, Shelby Walker, to make the sales to the State’s witness. That these proven circumstances or transactions were relied upon to show the operation of an open saloon, does not, so we think, render the case one based upon circumstantial evidence. We see no error in failing to give such a charge.

The same point is herein raised in this motion relative to the sale of two drinks not constituting a violation of the law as was raised in the Arthur Shelton case, Shelton v. State, Tex.Cr.App., 138 S.W.2d 1078, not yet reported [in State Reports], and we refer to our holding therein in disposing of such contention.

The motion is overruled.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    WEAVER v. STATE.
    No. 20885.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.

      See, also, Tex.Cr.App., 138 S.W.2d 1083.
    M. M. Guinn, of Rusk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Cherokee County for the unlawful possession of liquor for sale in a dry area; and his punishment was assessed at a fine of $250.

Leon Halbert, deputy sheriff of Cherokee County, made a search of the premises known as Rockwood Inn, which the evidence shows was situated on State Highway No. 40 north of Rusk in Cherokee County and which is also U. S. Highway No. 69. The witness stated that this place, with the buildings and tourist camps, was at the time “owned and operated by Joe Weaver”. He further testified: “My search of Rockwood Inn disclosed six half pints of whiskey and eleven cans of beer. This whiskey which I have in my hand is part of the whiskey recovered by me on November 5, 1938, at Rockwood Inn and is Joe Weaver’s whiskey.”

It was shown by the evidence that the sale of liquor was prohibited in Cherokee County by virtue of an election held in 1901. The witness testified that he had a search warrant when he went to the premises and that he made his search by virtue thereof. There was introduced in the record the affidavit for the search as well as the search warrant relied on.

The trial was had before the court without a jury.

We find no substantial error in the record. Appellant has filed several bills of exception which are brought forward in the record, but neither of them presents any reversible error so far as we are able to tell from an examination of them. Concluding that they present no error, each and all of them are overruled, and the case is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant earnestly insists that we erred in our original opinion in holding the affidavit for a search warrant sufficient. He contends that the affidavit contains the following: “that we have recently been informed by credible persons that intoxicating liquors are kept, possessed, found and sold in and upon the above described premises in violation of law and your affiants believe such information to be true and correct”; when, in fact, it is as follows: “We have this day been informed by credible persons that intoxicating liquors are kept, possessed, and sold in and upon the above described premises in violation of the law and your affiants believe that said information to be true and correct.”

He vigorously asserts that this is but a conclusion of the informants and did not show that any person or persons had seen any person or persons sell intoxicating liquor at the Inn, nor that any intoxicating liquor was possessed there for the purpose of sale. We are not in accord with his contention. It occurs to us that the statement in the affidavit here complained of is a statement of a fact and not a conclusion. It is true that the affidavit fails to show how the informants acquired their knowledge or came into possession of the facts related to affiants, but we do not think that affiants would be required to inquire of the informants how or in what manner they acquired such knowledge and then set it out in the affidavit. Appellant cites us to the case of Steverson v. State, 109 Tex.Cr.R. 11, 2 S.W.2d 453, and a number of cases. We have examined them, but in our opinion they have no application to the facts of this case. In the case of Steverson v. State, supra, the affidavit shows that it was based wholly upon the belief of affiants. No fact, circumstance or information upon which affiants’ belief was predicated is stated in the affidavit. In the instant case, the affidavit is based upon information furnished on November 5, 1938, by credible persons.

Appellant’s next contention is that the succeeding County Judge could not enter an order nunc pro tunc. This question has been decided adversely to appellant in the case of Spears v. State, 136 Tex.Cr.R. 55, 123 S.W.2d 674, and we see no need of again entering upon an extended discussion thereof.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    WEAVER v. STATE.
    No. 20886.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.
    M. M. Guinn, of Rusk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Cherokee County on the 7th of June, 1939, after a trial to the court without a jury and was assessed a fine of $250.

The record in this case shows that Bill Brunt, the sheriff, made a search of the premises of appellant on September 21, 1938, known as Rockwood Inn and which was his private residence. It was situated on the highway three and one-half miles north of Rusk. The witness had a search warrant issued upon proper affidavit as disclosed by the record. As a result of the search they found four one-half pints of liquor and one full-pint of liquor, tax paid. The liquor was whisky. It was located in the Rockwood Inn and was the property of the appellant.

Appellant did not testify for himself and produced no witnesses.

The appellant in this case is the same person as in Joe Weaver v. State, Tex.Cr.App., 138 S.W.2d 1081, this day decided, and the facts are the sanie save and except as to dates and amounts of whisky involved. The conclusion in that case is adopted as the proper conclusion and finding of this court in this case.

The judgment of the County Court is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

The matters herein asserted by appellant in his motion for a rehearing are identical with those urged by him in Joe Weaver v. State, Tex.Cr.App., 138 S.W.2d 1081, and for the reasons stated in the opinion in that case, the motion in this case is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    CLAYTON v. STATE.
    No. 20681.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Rehearing Denied April 17, 1940.

      Minnie M. Phipps, of Fort Worth, and R. B. Hood, of Weatherford, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The state’s testimony, briefly stated, shows that appellant and a companion went through the country as sewing machine repair men. On the 28th day of March, 1939, they appeared at the home of J. W. Cagle during his absence and by force and threats raped Mrs. ’ Cagle. When they left, they threatened to kill her if she ever told anyone about it. About three days later she attempted to commit suicide by taking concentrated lye. She was taken to a doctor who saved her life by the use of a stomach pump. She made no mention of the rape until about eleven days after the alleged occurrence, when she first told her mother-in-law and then her husband about it. She was then examined by a physician, who found bruises on her body and her privates lacerated, swollen and discolored. The discoloration indicated that it was approximately a week or ten days’ standing. Prosecu-trix testified that the reason she made no report thereof at an earlier date was because appellant and his companion threatened to kill her and her family and she believed them; that she had a horror of facing a courtroom full of people and being disgraced. Appellant took the witness stand in his own behalf. He admitted that he and his companion were at Mrs. Cagle’s home at the time in question, but denied that he, either alone or together with his companion, made any assault on Mrs. Cagle or raped her. Under these circumstances, we believe the evidence is sufficient to sustain the jury’s conclusion of appellant’s guilt. See Pettus v. State, 58 Tex.Cr.R. 546, 126 S.W. 868, 137 Am.St.Rep. 978; Ortiz v. State, 68 Tex.Cr.R. 608, 151 S.W. 1059; 35 Tex.Juris, p. 831.

By bill of exception number one, appellant complains of the action of the trial court in overruling his motion to quash the indictment on the ground of what he claims to be an “h” instead of a “b” in the word “obtain”. The court ordered the original indictment sent up with the record and it is before us. We have inspected^the same and it appears that in typing, the letter “h” was first struck and then the letter “b” was struck over it. We are at a loss to understand j ust how or 'in what way appellant could have been misled as to what offense he was charged with. The contention on his part in this particular seems to us to be hypercritical.

Bill of exception number two shows that appellant and George Sturdi-vant were separately indicted for the offense of raping Mrs. Cagle. The cases were set for the 8th day of May. Each of the two defendants filed an application for a severance. Sturdivant being too ill to be tried, as shown by the testimony of his attending physician Dr. Fyke, the cases were postponed to May 18. On that day Sturdivant filed a motion for a continuance, alleging therein that he was still too ill to be tried. This motion was supported by a certificate from the attending physician. Thereupon the court overruled appellant’s plea for a severance and placed him on trial. It appears from the record that the term of court expired on May 27. The court may have concluded from the facts before him that Sturdivant would not recover sufficiently from his illness to be tried at that term of court and that the granting of the motion would result in a continuance of appellant’s case. In such event there would be no error in the court’s action thereon. See Terrell v. State, 81 Tex.Cr.R. 647, 197 S.W. 1107, and authorities cited. Moreover both defendants having filed an application for severance, it was clearly within the discretion of the court to direct the order of their trial. See Strickland v. State, 97 Tex.Cr.R. 471, 262 S.W. 75; Goforth v. State, 99 Tex.Cr.R. 211, 269 S.W. 98.

Bill of exception number seven, as qualified by the court, shows that while Dr. Fykes was testifying in behalf of the state, he was asked a hypothetical question based on facts proven upon the trial: That, if in his opinion, such conditions would create in the mind of a sensitive woman suicidal emotions. The doctor replied that such conditions would create great mental emotion in a woman of the prosecutrix’s temperament. Appellant objected thereto on the ground that no man, be he a physican or not or what his training and experience was, could qualify to answer such a question. That the doctor was not shown to have had any experience with people of such character and therefore was no better qualified than the jury to pass on such a question, etc. The hypothetical question was based upon facts testified to by witnesses, showing her physical and mental condition, temperament, ser ''iveness and self-consciousness, as well as her conduct subsequent to the commission of the alleged offense. The principle is fairly well settled that physicians and surgeons of practice and experience are experts, and that their opinions are admissible in evidence upon questions that are strictly and legitimately embraced in their profession. We think, however, that the state qualified the doctor as an expert by showing that he attended Northwestern University at Chicago, Illinois, and that he had been engaged in the practice of medicine and surgery for 41 years, had taken post-graduate work and had operated a hospital for the past 19 years. See Landry v. State, 117 Tex.Cr.R. 396, 35 S.W.2d 433; Guse v. State, 97 Tex.Cr.R. 212, 260 S.W. 852. Moreover we think the objection went more to the weight of the testimony than to its admissibility.

By bill of exception number eight, appellant complains because J. W. Cagle, the husband of prosecutrix, was permitted to testify, among other things, that her baby was about nine months old at the time of the commission of the offense. Appellant objected on the ground that such question was immaterial. We need not discuss the question of whether this testimony was material or immaterial, because prosecutrix had theretofore testified without any objection on the part of appellant that she had two children, the youngest of which was about ten months old at the time of the trial. It is well-settled in this state that whenever testimony is admitted without objection which is of similar or like character as that objected to, no reversible error is shown. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972, and authorities there cited.

By bill of exception number nine, appellant complains of the testimony given by the husband of prosecutrix to the effect that before the date of the alleged offense, he and his wife were happy in their married life. Appellant objected thereto on the ground that it was irrelevant and inflammatory. The record shows that this testimony was elicited by the state on redirect examination of the witnesses after appellant on cross-examination had elicited the fact that about seven months after they were married, they separated and lived apart for about two weeks. We think under these circumstances the testimony was admissible to rebut the fact sought to be shown by appellant that the witness and his wife were unhappy; at least that her act in attempting to commit suicide may have been due to their domestic relations rather than to any humiliation produced by appellant’s act.

By bill of exception number ten appellant complains of the following- testimony given by Mrs. Rockwell: That in the month of March, appellant and another man came to her place of business, and engaged her in conversation. That appellant said he was a bachelor and asked her if there were any widows or old maids in the community. The record shows that appellant testified that he and Sturdivant drove up to the place of business of Mr. and Mrs. Rockwell, ate some canned goods, and appellant asked Mrs. Rockwell where the old maids and widows were for old bachelors and laughed about it. However, appellant on his direct examination recounted the course of his travels on the day in question, the places he had visited, the people he saw and the subject of the conversations he had with them, including the conversation with Mrs. Rockwell. Consequently he has no. just grounds of complaint.

Bill of exception number eleven is deficient in that there is no statement in the bill that the ground was not in the same condition and that many people had visited the premises where the offense is alleged to have been committed. Such statement appears only as a ground of obj ection and is not. a certificate by the court. See Viley v. State, 92 Tex.Cr.R. 395, 244 S.W. 538; Banks v. State, 131 Tex.Cr.R. 196, 97 S.W.2d 219; Branch’s Ann.P.C. Sec. 1864.

By bill of exception number 12, appellant complains of the action of the trial court in permitting the district attorney, on cross-examination of appellant, to ask him if he had not been charged several years ago with a violation of the law, to which appellant replied that he had— that they were misdemeanors. Appellant objected because such transactions were too remote and did not involve moral turpitude or affect his credibility as a witness, etc. The court, in his qualification to the bill, shows that on cross-examination appellant was asked by the district attorney if he had ever lived in Charlotte, N. C., to which he replied that he had been there. He was then asked if he there went by the name of Ted Koney, to which he replied: “I used that name when I got arrested and finger-printed and turned loose.” That he alsb used the name of Ted Oney in Birmingham, Alabama, once. That he was arrested once in Jasper, Alabama, for giving a worthless check under the name of Ted Oney, and arrested in Birmingham on a charge of embezzlement because he failed to return a lady’s sewing machine when she wanted it. We are of the opinion that under the qualification of the court, the bill fails to reflect reversible error. Some of the offenses with which he was charged involved moral turpitude and were admissible for the purpose of' affecting the credibility of his testimony. See Dulin v. State, 60 Tex.Cr.R. 376, 131 S.W. 1105; Turman v. State, 50 Tex.Cr. R. 7, 13, 95 S.W. 533; Branch’s Ann.P.C. Sec. 167. Moreover the appellant objected to all this testimony a portion of which was clearly admissible. See Sparkman v. State, cited supra.

By bill of exception number 14 appellant complains because the state was permitted to prove that the prosecutrix’s reputation for truth and veracity was good where she was born and reared and where she was best known. It appears from the record that prosecutrix was subjected to a very rigid cross-examination and was interrogated relative to the testimony she gave before the grand jury, and members of the grand jury were called by appellant as witnesses with the sole purpose of discrediting her. Prosecutrix had but recently come into the county in which the offense was committed and was not well-known to the citizens of Parker County. Under such circumstances, it was permissible to show her good reputation for truth and veracity. See Brown v. State, 52 Tex.Cr.R. 267, 106 S.W. 368; Harris v. State, 49 Tex.Cr.R. 338, 94 S.W. 227; Goode v. State, 57 Tex.Cr.R. 220, 239, 123 S.W. 597.

By bills of exceptions numbers 17 and 18, appellant complains because the court overruled his motion to permit the jury to make a physical examination of appellant, or that the court appoint three disinterested persons to make such examination and report their findings. This the court declined to do and appellant excepted. We do not see any just ground of complaint in this respect. Appellant could have selected any number of good citizens of Parker County to examine his privates and then testify as to what they found.

Bill of exception number 19 presents the most troublesome question in the case. The bill upon its face shows that one of the prosecuting attorneys, in his closing argument to the jury, asked why appellant did not place the co-defendant, George Sturdivant, dn the witness stand. The bill shows that the court sustained appellant’s objection and instructed the jury not to consider the argument. The court qualified the bill and in his qualification thereof states that the remark complained of was made but once, etc. While the remark was improper, yet every improper remark by counsel for the state will not require a reversal of the case unless the language is manifestly harmful and prejudicial, or where some mandatory provision of the statute is violated. We do not believe that under the facts disclosed by the bill that the argument was of such prejudicial nature that the Court by his prompt action could not withdraw its prejudicial effect. In the cases of Landers v. State, Tex.Cr.App., 63 S.W. 557 and Grille v. State, 112 Tex.Cr.R. 561, 17 S.W.2d 833, this Court reversed the convictions on somewhat similar remarks because the trial court failed to instruct the jury not to consider the same, but such is not the case here.

Appellant undertakes to bring forward by a bystander’s bill complaint of certain remarks by the county attorney in his argument. This purported bill falls short of the legal requirements of Sec. 9 •of Art. 2237, R.C.S., in that it is attested by only one citizen. Therefore the bill cannot be considered. We have devoted much time to a careful examination of the questions herein presented and have carefully considered all of the bills of exceptions. Some of these we have not discussed, as they appear to us to be without merit. However we did discuss most of appellant’s bills. The record shows that appellant was ably represented by seasoned and astute counsel who have not overlooked any of his legal rights.

Finding no error of a reversible nature in the record, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

■ In the motion for rehearing in this case appellant insists that this court “did not give to said cause that careful consideration which the seriousness of the charge and the .severity of the punishment called for to reach a just conclusion.” The appellant’s statement is far from correct. The case is troublesome in all of its phases. It is unusual and unnatural in many aspects, and is a case which called for and received in this court unusual attention on all of the questions presented. As in most cases, it is impossible and it is not considered necessary to treat each and every question that may be raised but only those which in fact present legal questions.

Complaint is specifically made that assignment of error No. 13 was not discussed in the opinion. This assignment presents no question of law but only goes to the weight of the evidence, and the argument in its behalf is an argument on questions of fact properly made before the jury. This court does not take into consideration questions of fact which have been presented to the jury, and it would not be proper for it to do so.

We have again considered the legal questions presented and feel that the proper conclusion was reached in the original opinion.

The motion for rehearing is overruled.


text:
    BRIDGES v. STATE.
    No. 20980.
    Court of Criminal Appeals of Texas.
    April 10, 1940.

      G. DeGraffenreid, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted for the offense of driving a motor vehicle upon a public highway while under the influence of intoxicating liquor; and his punishment was assessed at a fine of $100 and confinement in the county jail for thirty days.

The record is before us without statement of facts or bills of exception, in the absence of which nothing has been presented authorizing a reversal or requiring discussion.

The judgment is affirmed.


text:
    FINLEY v. STATE.
    No. 21016.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Charles W. Hackett, of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the .punishment, confinement in the penitentiary for five years.

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

In passing sentence, the court failed to take note of the Indeterminate Sentence Law. See Article 775, C.C.P., Vernon’s Ann.C.C.P. art. 775. The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not less than two nor more than five years.

As reformed, the judgment is affirmed.

PER CURIAM.

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


text:
    MUNOZ v. STATE.
    No. 21049.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Edmundo Munoz, of El Paso, in pro. per.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of El Paso County for the theft of an automobile of the value of $70, and his punishment was assessed at confinement in the penitentiary for four years.

In the absence of bills of exception in the record, the only question presented for review is the sufficiency of the evidence to support the conviction.

The State’s witness, Johnny Brewington, testified that he was an employee of the A. B. Poe Motor Company of El Paso, Texas; that about the first of July, 1939, he purchased for the company a 1930 Chevrolet sedan from Manuel Escajedas, which car was parked in their used-car lot. The witness did not give appellant or anyone else permission to take the car.

J. D. Harrison, who was connected with the El Paso County Sheriff’s office, testified that he received a report of the car having been stolen. He located the automobile out on the Carlsbad Highway in the sand hills. When recovered, the wheels, horn, coil, head lights and tail lights were gone. From a check of the motor number, the witness determined that the car was that stolen from the A. B. Poe Motor Company.

Lev Gardner, a police officer of the city of El Paso, testified that he knew the appellant and had known him for about two and one-half or three years. About 1:40 o’clock in the afternoon, while on patrol duty, he saw the appellant working on an automobile parked at the curb at a certain place. Appellant was working on a tire of a Chrysler automobile, and as the officers passed, he jumped up and got in the back of the car. He picked up an old piece of bed-ticking and threw it over some stuff in the back end of the car. The officers drove “around the loop” and then returned to where the appellant was working on the car. Upon removing the bed-ticking in the car, the officers discovered the stolen articles. Appellant at first said the articles belonged to some other boys but later claimed that he had taken them off of a Model “A” Ford that was his. Appellant said he was going to get his hat and walked through the house and back to the alley, followed by the officers. Just as he entered the street heading west, he broke into a run. He was apprehended and placed under arrest. The officers then recovered from the appellant’s car the articles which had been taken from the Chevrolet.

J. J. Fuller, a detective on the El Paso police force, testified to having taken these automobile parts to the Chevrolet and putting them on it. The parts fitted exactly on the automobile.

The appellant did not testify upon the trial, but introduced several witnesses tending to prove an alibi. However, there is no explanation of the possession of the stolen property, which precludes the jury from concluding that appellant stole the car.

The case is affirmed.


author: CHRISTIAN, Judge. GRAVES, Judge.

text:
    OWENS v. STATE.
    No. 20896.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Denied April 17, 1940.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is operating an automobile on a public highway while intoxicated; the punishment, a fine of $50 and confinement in jail for 5 days.

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

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

In his motion for a rehearing appellant challenges the sufficiency of the indictment. We have inspected the same. It appears to be in a proper form, and charges the offense of driving an automobile on a public highway while the driver was intoxicated.

The motion is overruled.