text:
    NICHOLS v. STATE.
    No. 20606.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    T. H. Yarbrough, Donald & Donald, and Boyd Barjenbruch, all of Bowie, and H. R. Bishop, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for four years.

At the timé the motor of the stolen automobile of Buck Davis, the injured party, was found on the farm of appellant’s father-in-law other automobiles and parts of automobiles were also discovered on such farm. The motor, which was alleged to have been taken from the car of Mr. Davis, was hidden under a hay stack. Automobile parts and an automobile which had no connection with the Davis automobile were also concealed at' other places on the Etheridge farm. The only circumstance indicating that the automobile and automobile parts last mentioned had been stolen was the fact that they were shown to have been concealed. The state proved the foregoing extraneous matters. Thereafter the court in his charge instructed the jury as follows: “You are further instructed that any evidence in this case concerning any property being on the J. W. Etheridge farm, other than the Plymouth motor introduced in evidence, can be considered by you only upon the question as to whether the defendant knew that the Buck Davis automobile had been stolen, if it was stolen, at the time he received it, if he did receive it, if you consider that such evidence does affect that question, and you will not consider any of such evidence for any other purpose in this case. You will not consider such evidence for any purpose in this case unless you first believe -from the evidence, beyond a reasonable doubt, that the defendant knew about such property, if any, and participated in placing it in the location and condition in which it was found on October IS, 1936, if it was.”

It is manifest that in introducing proof to the effect that other property on the premises of appellant’s father-in-law was concealed, the state was taking the position that such property had been received and concealed by the appellant under circumstances showing his knowledge that it had been stolen. As indicated by the charge of the court, this proof was introduced by the state in an effort to show that when appellant received the automobile of Buck Davis he knew that it had been stolen. In limiting such proof, the charge of the court was deficient, in that it failed to instruct the jury that they could not consider the alleged extraneous offenses unless appellant’s guilt of such offenses had been shown by legal evidence beyond a reasonable doubt. Appellant addressed a specific exception to the failure of the court to give such an instruction to the jury. The exception was well taken. We quote from the language of Judge Lattimore in Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389, as follows : “It is the settled law in this state that when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof. This has been held to be the correct doctrine as applicable to collateral forgeries, thefts, and other crimes, and we can see no sort of reason for attempting to draw a distinction between the application of said rule in other felony cases and the one now under consideration. If it be true that the jury must be instructed as to a collateral theft or forgery or other collateral crime tinder our established decisions, that they must believe that guilt of the accused in such collateral crime has been shown beyond a reasonable doubt before same can be considered against him in determining his guilt in the case on trial, then the same rule is applicable here, and the jury should have been told that they could not consider as a guilty circumstance appellant’s selling intoxicating liquor in violation of law on the dates named, unless such guilt was shown by legal evidence beyond a reasonable doubt. For authorities supporting our position see Fry v. State, 78 Tex.Cr.R. 435, 182 S.W. 331; Fry v. State, 86 Tex.Cr.R. 73, 215 S.W. 560; Martin v. State, 36 Tex.Cr.R. 632, 36 S.W. 587, 38 S. W. 194; Ham v. State, 4 Tex.Cr.App. 645.”

See also Vaughn v. State, 135 Tex.Cr.R. 205, 118 S.W.2d 312, and Miller v. State, 122 Tex.Cr.R. 59, 53 S.W.2d 790.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    STEPHENSON v. STATE.
    No. 20810.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    G. C. Harris, of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Upon appellant’s plea of guilty of the offense of transporting intoxicating liquor, to-wit whisky, in a dry area, and the waiver of a trial by jury, the court assessed his penalty at a fine of $100.

This cause comes before us without any statement of. facts. or bills of exception. 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.

All proceedings herein seem to be regular, and we have no other alternative than to affirm the judgment, which is accordingly done.


author: KRUEGER, Judge.

text:
    FOWLER v. STATE.
    No. 20797.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.

      R. L. McGaugh, of Brownwood, for appellant..
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for driving an automobile upon a public highway while intoxicated. The punishment assessed is confinement in the state penitentiary for a term of nine months.

The record is before us without statement of facts or bills of exceptions. The indictment is sufficient to charge the offense and procedural orders 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:
    THOMAS v. STATE.
    No. 20804.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Carney & Carney and Tom J. Mays, all of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is accepting a bribe. The punishment assessed is confinement in the state penitentiary for a term of 2 years.

One of appellant’s main contentions seems to be that the trial court erred in declining to sustain his motion for a peremptory instruction to the jury to return a verdict of not guilty, upon the ground that the evidence is legally insufficient to justify his conviction in this: That no legal evidence other than the testimony of accomplice witnesses had been offered and this testimony was not corroborated by evidence from any source. A careful review of the testimony, as disclosed by the record, leads us to the conclusion that his position is well taken. The state introduced six witnesses, to-wit; D. H. Boon, Inez Armstrong, Samuel Armstrong, W. H. Harrison, Samuel Dodson and Roy Lockett. Boon testified that he was county superintendent of public instruction in and for Cass County. That Graves, West-moreland and appellant were the trustees in and for common school district number IS of said county during the years 1936, 1937, and 1938, but that he, the witness, ¡knew nothing concerning the charge against appellant. Inez Armstrong was a •school teacher who was looking for a position in some colored school. She got in touch with W. H. Harrison, a teacher who lived in Cass County. He informed her that there was a vacancy in the Domina School of District No. 15 and offered to put her in touch with appellant who was one of the trustees. Inez, accompanied by her husband and W. H. Harrison, made several trips to appellant’s home with a view of presenting her application and seeking his support for the position. On the third trip to appellant’s home, Inez was accompanied by her brother, Samuel Dodson, and W. H. Harrison, but she did not have any conversation with appellant. It seems that Harrison was the man who rendered the diplomatic services in her behalf. That on the day of the last trip to appellant’s home her brother, Samuel Dodson, gave to Inez’s husband, Samuel Armstrong, $125, which he, Dodson, had borrowed from Roy Lockett on the evening before, to be used in paying appellant for his support of her for the position which she so much coveted. Lockett knew the purpose for which Dodson borrowed the money. Consequently he was an accomplice by reason of having furnished' the money with which to perpetrate the bribery, if any. Inez Armstrong was an accomplice because she knew of the unholy purpose of her husband, her brother, and Harrison in taking the money to appellant; and she went with them and accepted the benefits accruing to her by reason of the bribery, if any. She, as such teacher in said school,,drew and retained the monthly salary as a result of said alleged bribery. Hence she too was an accomplice witness. Armstrong, who took the money to Harrison to give to appellant as a bribe, knowing the purpose for which it was given, was an accomplice, and so was Harrison. Dodson, who was instrumental in securing the money and delivering it to Armstrong to be used in bribing appellant, certainly aided in the enterprise and hence was an accomplice. No one testified that appellant ever received the money except Harrison, who claims to have delivered it to him. This was denied by the appellant. Harrison was successfully impeached by showing that his reputation for truth and veracity was bad. It is true that Dodson testified that appellant came to see him and requested him to sign a written statement to the effect that he, Dodson, did not give Inez any money on the occasion in question, but in this Dodson is not corroborated. Thus it will be noted that all of the state’s witnesses except Boon were accomplices and there was no evidence from any other source corroborating them on any material part of the testimony. It follows that the evidence in this case does not meet the requirements of the law. See Vails v. State, 59 Tex. Cr.R. 340, 128 S.W. 1117; Newman v. State, 55 Tex.Cr.R. 273, 116 S.W. 577; Franklin v. State, 53 Tex.Cr.R. 388, 110 S.W. 64; Townsend v. State, 90 Tex.Cr.R. 552, 236 S.W. 100; McDaniel v. State, 93 Tex.Cr.R. 354, 247 S.W. 854; Atchley v. State, 95 Tex.Cr.R. 477, 254 S.W. 992.

We also think the court was in error in his instruction to the jury upon the law of accomplice testimony, and in declining to submit appellant’s special requested instruction to the effect that one accomplice cannot corroborate another or other accomplice.

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: BEAUCHAMP, Judge.

text:
    LAMKIN v. STATE.
    No. 20563.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.

      Mahan & Broughton, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
    Montague & Fannin and Joe G. Montague, both of Fort Worth, Amici Curias for Texas & Southwestern Cattle Raisers Ass’n.
   BEAUCHAMP, Judge.

At the September term, 1935, of the District Court of Hall County, the appellant was convicted of cattle the'ft, and his punishment assessed at a term of four years in the penitentiary with the sentence suspended. In February, 1938, he was con- ’ victed upon a felony charge of driving an automobile on a public highway while intoxicated. The latter sentence became final, and the District Attorney filed a motion to set aside the suspension of the sentence in the former conviction, and upon the hearing the same, was revoked and the appellant duly sentenced to four years’ confinement in the penitentiary. From this sentence appellant brings this appeal.

On the hearing to have this sentence revoked appellant sought to have the judgment of conviction set aside on the ground of the insufficiency of the evidence upon which he was convicted. At the time of the hearing and for the appeal he attempted to secure a transcript of the testimony in his first trial, but was advised by the court reporter that the notes had been destroyed and that he would be unable to make a full and complete transcript. One of the attorneys in the original case had died, and the other one, with the District Attorney, made a statement of facts which was concurred in by two of the jurors. Appellant, it seems, would not agree to this statement of facts and contends that the statement made is. incorrect. The trial judge is unable to prepare one from memory. Appellant now presents that he has been deprived of a statement of facts without fault on his part and after due showing of diligence.

The first question for our consideration is whether or not the appellant has a right of appeal after the revocation of the suspension of his sentence and after a final judgment had been entered in his case. This court has consistently held that there is no appeal from a suspended sentence because it is not a final judgment from which an appeal may be taken. As-shown by the authorities hereinafter quoted, it has been as consistently held that when a suspended sentence is revoked, an appeal will lie to this court to review the original trial in the same manner a's if there had been no suspended sentence and an appeal had been perfected at the time of the entry of the judgment. The applicable statute, Art. 779, C.C.P., reads as follows: “Upon the final conviction of the defendant of any other felony pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.”

Though the suspended sentence law has-been in effect since 1913, and there have been many appeals to this court after the suspended sentence was revoked, we ar.e again called upon to pass upon the question of whether or not an appeal will lie under such conditions.

In Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840, 841, there was an appeal from a conviction with a suspended sentence. The date of the opinion of this court was February 25, 1914. The motion for rehearing, on March 18, 1914, sustained the original opinion. After denying him the right to have his case considered on appeal, the court said: “If the court- should hereafter, for any reason, call him before the court and pronounce sentence, his right of appeal would then accrue, and he could then prosecute an appeal to this court, but not until then.”

The Bierman case is specifically approved in Ex parte Lawson, 76 Tex.Cr.R. 419, 175 S.W. 698, 699, from which we quote the following: “In Bierman v. State [73 Tex.Cr.R. 284], 164 S.W. 840, we held that there was no right of appeal from a judgment suspending the sentence until the court set aside the suspension of the sentence, but that the right of appeal accrued whenever the court set aside the order suspending the sentence.”

In Gallier v. State, Jan. 12, 1916, 78 Tex. Cr.R. 534, 182 S.W. 306, the appellant, upon receiving a suspended sentence, filed a motion for new trial, and when it was overruled, gave notice of appeal. This court said: “The trial court should not have permitted notice of appeal to have been given; for, under the suspended sentence law, an accused cannot appeal from the conviction, and can only do so when proper sentence is later, if at all, pronounced against him. Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840.”

In Ex parte Beland, 94 Tex.Cr.R. 614, 252 S.W. 529, 530, dated June 13, 1923, Judge Hawkins wrote: “Relator could not appeal from the judgment of conviction wherein his sentence was suspended so long as the suspension was effective, because no sentence had been pronounced and the judgment was not final; but when the court revoked the suspension on July 28, 1922, and pronounced sentence upon relator, the judgment then became a final judgment and the right of appeal at once accrued, and this was the legal, adequate, and statutory remedy. Article 856, C.C.P.; Bierman v. State, 73 Tex.Cr.R. 284, 164 S.W. 840; Ex parte Lawson, 76 Tex.Cr.R. 419, 175 S.W. 698; Thomas v. State, 87 Tex.Cr.R. 153, 219 S.W. 1100.”

Each and all of the foregoing decisions were rendered prior to the re-enactment of the suspended sentence law in 1925 substantially as it appeared in the statute at the time of the foregoing opinions of this court.

It is a settled rule of construction that whenever a statute is re-enacted without any substantial change of verbiage that it will be given the same judicial construction thereafter as it had received previous to such re-enactment. Tex.Jur., Vol. 39, p. 266, sec. 141; Kerens Nat. Bank v. Stockton, 120 Tex. 546, 40 S.W.2d 7, 77 A.L.R. 362; Texas Fidelity & Bonding Co. v. City of Austin, 112 Tex. 229, 246 S.W. 1026; Francis v. State, 90 Tex.Cr.R. 67, 233 S.W. 974. Moreover, this court has written on the identical subject and has specifically held that a construction of the suspended sentence law in the case of Martin v. State, 82 Tex.Cr.R. 199, 198 S.W. 956 (decided in 1917), was written into and became a part of the re-enacted suspended sentence law when the Legislature adopted the Codification of 1925. Presiding Judge Morrow wrote the opinion so holding; and on motion for rehearing Judge Lattimore ré-stated the position of this court with numerous authorities in the case of Parrish v. State, 126 Tex.Cr.R. 308, 71 S.W.2d 274. The court here holds that the suspended sentence law appears in the 1925 codification in the identical language that it was found in the law existing in 1917 when the Martin case was decided.

Assuming that this is a settled rule and in view of the fact that this court has consistently held that an appeal will lie from a judgment with a suspended sentence if and when that judgment becomes final by revocation, we do not deem the question now open for consideration. The Legislature re-enacted the same statute in 1925 with a knowledge of the construction which this court had placed upon it, and we view it as effective as if the Legislature had written into the statute itself the decisions of this court on the subject.

We are not overlooking the closing phrase of the article above quoted which says, “and in such cases no new-trial shall be granted in the first conviction.” If the matter were open for our consideration at this time, we may as well apply this as direction to the trial court and consistently hold that the trial court would have no authority at that time to grant a new trial. If the Legislature had intended to say that this court may not reverse a case, the matter was before them, they were writing on the subject, and they might as well have said so. The phrase is an inhibition and should not be construed to mean more than it says. If it is to be taken as limiting the jurisdiction of this court, we believe the language should be specific and that a conclusion of this nature should not be reached by mere implication. Neither have we overlooked the fact that the decisions of many other jurisdictions are contrary to those of our own state and that the reasons for such decisions are not -altogether trivial. It is held that it will be an injustice to reverse a case after a long lapse of time and send it back for a new trial when records of events might become destroyed, witnesses may have moved away, and memories as to exact dates and relation of facts are not sufficiently accurate to secure a conviction. This reasoning might well be indulged by the Legislature in passing the law but not by courts. It is not a question for us to consider as to which is wiser; for we are confined to the determination of what the law is, and having found it, it is our obligation to so hold.

The next question presented is whether or not the appellant has been deprived of a statement of facts after having exercised reasonable diligence to obtain one and without fault of his own. It occurs to us that a set rule to determine diligence of a party to obtain a statement of facts is rather' a difficult one and that it is largely a matter for this court to pass on in each individual case. The facts are seldom the same in two cases. Certainly the .one before us is different to -any other that has been called to our attention, and we could .only measure the. diligence by considering what an ordinary prudent person would do under the same or similar circumstances. He had not procured from the reporter a transcript of the testimony at the time of 'his trial. It .could hardly be said that a prudent person would have been called upon to do so. It would be a rare exception if he did, for we cannot read into the mind of the appellant at that time an intention to again violate the law and need such transcript. If he had taken this step, we might well look upon his act in doing so with suspicion. An attache of the court had charge of these notes and not the appellant. The destruction of them was a matter beyond his knowledge and responsibility.

We then reach the question as to whether or not a prudent man should have agreed to the statement of facts that was presented for the court’s approval. This statement of facts is not before us and there is no evidence as to its reasonableness or unreasonableness. The court was unable to make up a statement which was certainly no fault of the appellant. We are without any facts upon which we may reach a conclusion in the matter and are confronted with our duty to resolve any reasonable doubt in favor of the appellant. Having thus considered the elements presented in this question, we are driven to the conclusion that the appellant is before this court without a statement of facts under such conditions as require that his case be reversed and remanded for a new trial, which is accordingly done.

The case is reversed and remanded for a new trial.


text:
    CLARK v. STATE.
    No. 20796.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Hubert T. Faulk, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for theft of cattle; the punishment assessed is confinement in the state penitentiary for a term of two years.

The record is before us without statement of facts or bills óf exceptions. The indictment is sufficient to charge the offense and 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.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    PARKER v. STATE.
    No. 20489.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1939.
    Rehearing Denied Jan. 31, 1940.
    Application for Leave to File Second Motion for Rehearing Denied Feh. 21, 1940.
    Adams & McAlister, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s principal contention seems to be that the evidence is wholly insufficient to warrant and sustain his conviction. We are unable to reach such a conclusion from a careful study of the record.

The state’s testimony, briefly stated, shows that on the night of January .23, 1932, J. A. Honeycutt, Mrs. Rush Payne, Bonnie Payne and the deceased, were on their way to San Augustine in a car. They stopped at a drug store and from there drove out and stopped on the side of a road. Shortly thereafter, appellant and his companions came along and stopped. The deceased went over to appellant’s car and asked for some whisky. Appellant told him he had none, and appellant’s companion, Hanzel, then gave the deceased a pint of whisky. When the deceased returned to his car he remarked: “I got a full pint instead of a drink.” Following this incident, appellant and his companions proceeded to Mark Mills. While on their way, appellant remarked to his companions that he intended to kill the deceased because the deceased was going to the sheriff and he, appellant, was going to be arrested for having whisky in his car. He then threw the balance of the whisky remaining in the car out and broke it. At Mark Mills they met the appellant’s mother, Caro Parker, and his brother Isaac, in a car. Appellant and his companion, Mary Hanzel, left their car and got into the car occupied by his mother and brother. While sitting in the rear seat, appellant had a gun in his hand and remarked: “If I meet Mr. Amey, he is my man.” After taking Mary Hanzel home, they finally drove down a side road, where the deceased and his companions had parked their car and gotten out. It appears that the deceased had raised the cover of the back of his car when he observed a car coming down the hill. When the oncoming car had reached a point near the deceased’s car, the deceased walked rapidly out into the road, at which time appellant fired several shots. After the car had passed, the deceased walked up to his companion, Mr. Honeycutt, and remarked: “They got me.” He fell on the ground and soon died. Deceased was shot in the back below the right shoulder blade and the bullet came out below the left nipple and lodged between the body and the underwear.

Appellant offered testimony which showed that the deceased had threatened to whip him; that he was following him around and when he and his companions were driving down the road and had reached a point near where the deceased and his companions had parked their car, the deceased ran out into the road and fired several shots, whereupon appellant returned the1 fire in self-defense, since he was afraid the deceased would either kill him, his mother, or his brother.

It will be noted that the testimony recited raised an issue of fact which was submitted to the jury for their consideration under an appropriate instruction from the court. In order for this court to hold, as a matter of law, that appellant acted in self-defense when .he killed the deceased, the evidence on that question would necessarily need to be uncontradicted so that no issue would be raised. Here we have appellant making threats to kill the deceased just an hour or two before he did kill him. Deceased was shot in the back and then appellant evaded arrest by leaving the country. Even if the deceased had run out into the road, he did not, according to the state’s witnesses, have a pistol in his hand at the time. We deem the evidence sufficient to sustain the jury’s conclusion of appellant’s guilt.

Bills of exceptions numbers one through four complain of the introduction of testimony into the record while Lewis Hanzel, a witness for the state, was testifying. The state, it seems, elicited from Han-zel the fact that he had a date with the deceased on the night in question and was supposed to meet him at his (Hanzel’s) house. Appellant objected to all this testimony on' the grounds that it was hearsay, uncommunicated to the defendant, prejudicial and inflammatory. We note from the record that the witness further testified that he did not meet the deceased, but that the next time he did see him was after he had been killed. We are at a loss to understand how or in what manner this testimony was hurtful to the appellant or prejudicially affected his rights.

Bill number five complains because the state, on direct examination of "its witness, Lewis Hanzel, asked him to state whether the deceased, on the night in question, was coming to his house after some whisky. Appellant’s objections thereto were about the same as presented by bills one through four. However, the court sustained the objection and instructed the jury not to consider the same for any purpose. The court’s prompt action in this respect cured any error that might have resulted therefrom.

By bill of exception number six, appellant complains because the District Attorney asked the witness, Emil Hanzel, one of the State’s witnesses, the following question : “Where were you and the defendant going on the evening of the night Laurie Amey was killed?” The witness replied: “We were going to a dance to sell some whisky?” Appellant objected to the answer of the witness and the question propounded because it constituted evidence of an extraneous offense and was an attempt to accuse the defendant of another crime other than the one with which he was charged; that the defendant’s reputation had not been put in issue at the time. The objection was overruled and appellant excepted.

We find in the record that the appellant, by his own witness, Bonnie Lee Henderson, proved that he did have whisky in his car at the time, and from many sources comes evidence that he was transporting it. Appellant, himself, testified as follows: “He * * * got out of the car and came up and said: ‘You got any whisky?’ I said, no, and he said: T know damned well you have and I want some of it.’ I said, You can’t get it. * * * Well he demanded it * * * right on and Emil Hanzel had about a half pint of whisky in the pocket of the car that was mine and I told him to give it to him.”

One of the parties who was with appellant in the car on the night in question testified that appellant became uneasy that the deceased would report' him to the sheriff and threw the balance of the whisky out of the car and broke it.

Transportation of whisky at the time of this alleged offense was a felony of equal gravity to that of having whisky for purposes of sale. The same statute, Art. 666, P.C. of 1925-, embraced both offenses. Hence it is obvious that appellant himself, as well as other of his witnesses, testified that he was guilty of transporting whisky— an extraneous offense. It is a well-settled rule in this State that when testimony of a similar nature as that objected to is admitted from some other source without objection, no reversible error is shown. See Whitehead v. State, 134 Tex.Cr.R. 579, 116 S.W.2d 703; Sparkman v. State, 128 Tex. Cr.R. 627, 82 S.W.2d 972; Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818. Moreover it appears that the killing was the result of the whisky transaction.

By bill of exceptio'n number eight, appellant complains because he was not allowed to introduce in evidence a judgment showing that a former indictment against him for the same offense had been dismissed. The bill does no more than complain because he was not allowed to show this judgment. Its relevancy is not shown in any way. Under these circumstances, the action of the court was proper in excluding the same.

Appellant has addressed a number, of objections to the court’s charge. We have examined the charge carefully, in the light of the objections and believe the same was a fair application of the law to the facts, and that the charge is not subject to the objections addressed thereto.

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

PER CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion for a rehearing of our original opinion herein on account of our statement of what are the facts shown by the State’s testimony. It is true that such opinion does not contain a complete account of all the facts, but merely the salient facts proven by the State in order to show whether a sufficient basis was there present upon which to place the verdict of the jury.

The testimony does show that at the time the deceased was killed he had a pistol in his hand, and it further shows facts present from which the jury could have decided that such pistol was not fired at the place where the deceased met his death.

Complaint is also made of the statement that the deceased was shot in the back. Such statement was possibly based on the testimony of the witness Alford, as follows: “I was present when the body was undressed. I saw the location of the wounds. The bullet went in his back and came out here. There was a hole through a little jacket and un(der)clothes on the back and there was not a hole through the underclothes in front; and when he undone the collar and tie the bullet was laying right _ there.” Again we find in Charlie Minton’s testimony the following: “ * * * I know the position of the wound on the body. The wound was right under that right shoulder, * * * a little behind the right arm; about right along there. I didn’t see any shot there on that arm. The shot came out right along there, about under the left titty.”

We think under the testimony above quoted one would be justified in saying that Mr. Amey was shot in back of the right shoulder, and the shot came out at about the left nipple. We do think the following statement inapt and should be withdrawn from-the original opinion: “Even if the deceased had run out into the road, he did not, according to the State’s witnesses, have a pistol in his hand at the time.” Otherwise than the just above quoted paragraph, we are of the opinion that the statement of the State’s testimony fairly reflects the record before us. It is surely understood that such a statement, however, does not attempt to set forth all the testimony, nor to offer the appellant’s defensive testimony. Same was merely set forth in order to show that there was a sufficient amount of testimony in favor of the State upon which to uphold the verdict of the jury. Had they accepted the appellant’s version of the transaction as shown by his witnesses, there would have been no appeal present on account of the fact that his witnesses showed a clear case of self-defense. The jury, however, as arbiters of the1 facts, accepted the State’s version thereof, and we are bound thereby.

We find an exception to the trial court’s refusal to allow appellant to introduce an order dismissing a previous indictment for this same offense. It appears that this killing took place in the year 1932; that appellant fled and was finally apprehended six years thereafter in the State of North Carolina and brought back to Texas in 1938, and again indicted for this offense. That he was a fugitive was amply proven not only by the officers but also by his own testimony, and we can see no materiality to the fact that the old indictment was dismissed. Surely on account of his continued absence such a dismissal could have naught to do with the trial of this cause. We see no error in the trial court’s refusal to allow the introduction of this order of dismissal.

There was a wide variance between the testimony of the State’s witnesses and that of the appellant. The jury seemed to have accepted the version of the State’s witnesses, and, according to their testimony, there was sufficient testimony to show appellant’s guilt. The case of Martin v. State, 136 Tex.Cr.R. 541, 126 S.W.2d 649, is not a' case in point herein. It might be inferred from the State’s testimony that the deceased did not fire his pistol at the scene of the killing. The State’s case herein is much stronger than the presented facts in that case.

■ The motion for a rehearing will be overruled.


text:
    ALLEN v. STATE.
    No. 20813.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Mel Janes, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a jury of the unlawful possession of beer for the purpose of sale, and by the court sentenced to pay a fine of $100, and to also serve thirty days in the county jail.

Bill of exceptions No. 1 complains of trial court allowing the sheriff to testify, in substance, that an unnamed engineer on the Santa Fe Railroad came into the sheriff’s office and asked the sheriff if he wanted to catch a bootlegger. Upon receiving an affirmative hnswer, he told the sheriff to go down to a certain place on the railroad right of way and he would find one. Although appellant’s objection to such, testimony was sustained, nevertheless same appears in the statement of facts. This testimony, in the event of another trial, should not be offered nor admitted.

We are of the opinion that the facts themselves are insufficient to establish the appellant’s guilt. They show, in substance, that the sheriff and a ranger went to the place designated by the above mentioned engineer, and on the grade of the railroad they saw appellant and started in pursuit of him, and he immediately began to run, the ranger firing several shots at him, or in his direction. The sheriff did not join in the pursuit, but the ranger ran appellant about a half a mile into a pasture and captured him and brought him back to the scene of the beginning of the chase. About sixty feet away from where appellant was first seen the sheriff found four cases of beer in a washout near the roadbed. The beer was covered with a blanket. No one had a warrant for appellant’s arrest, and no further testimony appears connecting appellant with this beer, and its ownership was not further shown. Appellant denied knowing anything about the beer, and explained his presence near the beer satisfactorily at least to himself. He said he ran because the ranger was shooting at him, and that he did not know who any of his pursuers were, nor why they were pursuing him.

No one saw appellant nearer than sixty feet from the hidden beer, and no connection therewith was even remotely suggested, save that when accosted he ran, and doubtless accelerated his speed when the ranger began shooting. We do not think these facts are sufficient to show beyond a reasonable doubt that this was his beer. See Crutchfield v. State, Tex.Cr.App. 132 S.W.2d 855.

The trial court charged a punishment not found in the statute. He charged the punishment for the unlawful possession of beer for the purpose of sale in a dry area to be “not less than $25 and not more than $1,000, or at confinement in the county jail of Lubbock County for not more than one year, or by both such fine and imprisonment,” etc. We are unable to find any such denunciation in any of the penal provisions of the liquor laws. We do find that Art. 667- — -26, Vernon’s Texas Penal Code, 1939 Supplement, also in the 1938 Supplement, provides a penalty of not less than $25 nor more than $500, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. We also find under Art. 666 — 41, Penal Code, supra, that there is-a penalty provided of a fine not less than. $100 nor more than $1,000, or by imprisonment for not more than one year, and we note that this latter statute does not provide for both such fine and imprisonment.. We call attention to the case of McBride v. State, Tex.Cr.App., 129 S.W.2d 315, in which we held that the penalty for the unlawful possession of intoxicating liquor-in a dry area for the purpose of sale is; governed by Art. 666 — 41, Vernon’s Ann. Texas Penal Code, and that such article does not provide for the assessment of both a fine and a jail term. Also see Ruffin v. State, Tex.Cr.App., 134 S.W.2d 293.

We further note that the judg•ment of the court was not only improper in that it assessed both a fine and imprisonment against the appellant, but we further notice that such judgment does not follow the jury’s verdict. It is also observed that the verdict of the jury is uncertain, and same should not have been received by the court. The verdict reads as follows:

“We, the jury, find the defendant guilty as charged, and assess his punishment at a fine of $100.00 and/or confinement in the county jail of 30 days.
J. I. Barrett, Foreman.”

This verdict appears, however, in the judgment of the court exactly as quoted above, with the exception of the omission of the word “or”, leaving the punitory phrase thereof to read $100 and 30 days in jail.

It is elemental that verdicts of juries must be certain, and their meaning and construction not left in doubt nor to speculation. Did this verdict mean that appellant was to be fined $100, or confined' in jail for a period of thirty days, or did it mean that he was to be fined ,and also confined in jail? The trial court had no right to himself construe this doubtful verdict. He should have refused to receive the same, and sent the jury back to correct the verdict. The words “and/or” have oftentimes been criticised as of doubtful, meaning, and surely can not be accepted in-the finding of a jury and its verdict, nor utilized by the court in its judgment.

For the errors mentioned this judgment is reversed and the cause remanded.


author: GALLAGHER, Chief Justice.

text:
    JONES FINE BREAD CO. v. SMITH.
    No. 2176.
    Court of Civil Appeals of Texas. Waco.
    Jan. 4, 1940.
    Rehearing Denied Eeb. 8, 1940.
    Hull & Oliver, of San Antonio, and Tom P. Scott and W. E. Cureton, both of Waco, for appellant.
    Muckleroy McDonnold, of San Antonio, for appellee.
   GALLAGHER, Chief Justice.

This suit was instituted in the county court of Bexar county by appellee, T. D. Smith, Jr., against appellant, Jones Fine Bread Company, to recover on a written contract. By the terms thereof, appellant agreed to pay the sum sued for to Comae, Inc., which assigned said contract to ap-pellee. Appellant filed its plea of privilege, in which it alleged nonresidence in Bexar county, claimed .residence in McLennan county and denied that any exception to exclusive venue in the latter county existed. Appellee filed controverting affidavit, in which he claimed venue in Bexar county on the ground that appellant had contracted in writing to pay the sum sued for in said county. No other ground for venue in said county was asserted. Appellee, on the hearing, introduced a witness who testified that he saw the contract sued on signed by George O. Jones as president of the Jones Fine Bread Company, and said contract was thereupon admitted in evidence. There was nothing in the plea of privilege, the controverting affidavit nor in the testimony to show that Jones Fine Bread Company was a corporation, that George O. Jones was its president nor that he had authority to sign said contract imposing pecuniary liability upon said -company. The court overruled appellant’s plea of privilege.

Appellant contends by appropriate propositions that since appellee claimed venue in Bexar county on the ground that his suit was upon a contract payable therein, it devolved upon him to prove by extrinsic evidence the execution of the instrument sued on and that the person executing the same had authority to do so. A sworn plea of privilege by the defendant in a case, without further pleading or proof, operates as a sworn denial of the execution by the party urging such plea, or by his or its authority, of a written instrument relied upon to bring the case under the exception defined in subdivision S of Article 1995 of our Revised Statutes, and casts upon the plaintiff the burden of alleging under oath the execution of such instrument and of proving by extrinsic evidence the execution thereof by the defendant, or by his or its authority. Johnson v. Dallas Cooperage & Wooden-ware Co., 120 Tex. 27, 34 S.W.2d 845; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.2d 824; Freeborn v. Davis, Tex.Civ.App., 122 S.W.2d 645, pars. 3 to 5, inclusive; Pavlidis v. Bishop & Bab-cock Sales Co., Tex.Civ.App., 41 S.W.2d 294, par. 1; City of Dilly v. Black, Tex. Civ.App., 95 S.W.2d 732; Ketner v. J. M. Radford Grocery Co., Tex.Civ.App., 299 S.W. 680; Stockyards Nat. Bank of Fort Worth v. Alexander, Tex.Civ.App. 113 S.W.2d 288. Since the testimony was insufficient to show, venue in Bexar county, the court erred in overruling, appellant’s plea of privilege, which error requires reversal.

It is the general rule in civil cases that when the' Court of Civil Appeals reverses a judgment of the trial court for lack of evidence in support thereof, it will not render judgment unless it appears that the case in that respect has been fully developed, and when such situation does not affirmatively appear, the case will be remanded for another hearing. Appeals from interlocutory orders on pleas of privilege are governed by the same rule. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, 594, pars. 3 and 4, and authorities there cited. Appellant’s plea of privilege is therefore remanded to the trial court for another hearing.


author: O’QUINN, Justice.

text:
    CITY OF BEAUMONT et al. v. CARROLL et al.
    No. 3650.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 22, 1940.
    Rehearing Denied Jan. 24, 1940.
    Geo. E. Murphy, City Atty., and E. B. Votaw, Asst. City Atty., both of- Beaumont, for appellants.
    Morris & Bennett and Howell & Howell, all of Beaumont, for appellees.
   O’QUINN, Justice.

This suit was brought in the 58th District Court of Jefferson County, Texas, by A. D. Carroll and some fifteen others to restrain the City of Beaumont, its officers and agents, from enforcing an ordinance of said city. The district court granted a temporary injunction on an ex parte hearing and the writ was duly served on the city officials. From the order granting the temporary injunction the city brings this appeal.

The ordinance attacked reads as follows:

“Exhibit A
“An Ordinance
“An ordinance providing for the licensing and regulating of certain persons engaged in the business of lending money without security within the corporate limits of the City of Beaumont; defining the word 'person’ and providing for the exception of certain persons, firms and corporations from the operation of this ordinance; fixing an annual license fee of $25.00 for each such business : prescribing penalties for the violation of this ordinance; repealing all ordinances or parts of ordinances in conflict herewith; providing a saving clause for valid portions in the event any provision of the ordinance shall be declared invalid; providing for the effective date of this ordinance.
“Be it ordained by the City Commission of the City of Beaumont:
“Section 1
“(a) It shall hereafter be unlawful for any person as herein defined, either as principal or as agent or representative of another, to engage in the business of lending money to any person or persons without security within the corporate limits of the City of Beaumont, without first having obtained a license therefor from the City of Beaumont and displaying such license as herein provided. The fact that any such lender may require a surety, a guarantor or endorser shall not exempt said lender from the provisions of this Ordinance.
“(b) The word ‘person’ when used in this Ordinance shall, for the purposes of this Ordinance, mean every natural person, firm, co-partnership, association, partnership, corporation or»society; and the term ‘person’ shall include both singular and plural; the masculine shall embrace the feminine gender.
“Section 2
“(a) Every person, before opening, maintaining or operating such a business for the lending of money in the City of Beaumont, shall make application to the City Manager of the City of Beaumont for a license for each such business maintained or operated by him, upon a blank to be furnished by the City Manager, on a form prescribed by such officer, which shall include among other things the full name and address of the applicant, both residence and place of business, including the street and number; and if applicant is a partnership or association, the full name and address of every member thereof, and if a corporation, the name and address of each officer or director of such corporation; also the name under which the business it to be conducted.
“(b) A separate license and application shall be required for each establishment, office. or pláce of business conducting the business of lending money without security, regardless of the ownership of such business.
“(c) Every such application for license shall be sworn to by the applicant.
“Section 3
“(a) Each such license shall state the address at which the business is to be conducted and the name under which the business is to be conducted, and such license shall be kept conspicuously posted in the place of business of the licensee where it may be readily available for inspection by the public.
“(b) No license shall be transferable or assignable but shall be valid only for the use of the licensee named therein; nor shall any licensee maintain more than one place of business under the same license, provided, however, the City Manager may issue more than one license to the same licensee upon compliance with all the provisions of this Ordinance governing an original issuance of a license for each new license.
“(c) Such license shall be valid only at the address stated in said license; provided, however, that should a licensee desire to change his place of business to another location, he shall give written notice thereof to the City Manager who shall attach to the license, in writing, a record of the change and the date thereof, which record shall be authority for the operation of s.uch business under license at such new location.
“Section 4
“(a) In order to defray part of the expense necessary to provide surveillance, supervision and inspection of such business required under the terms of this Ordinance, there is hereby levied a license fee of Twenty-five ($25.00) Dollars per annum for each business so operated, which fee shall be collected by the Tax Assessor and Collector from each applicant for each such license. Said license fee shall be payable on an annual basis and shall be due and payable for any year not later than the 10th of January of said year, such fee to cover the calendar year. If a license to operate any such business is granted during a current year, the fee shall be made pro rata for the balance of the calendar year on a basis of the number of months and fractions thereof remaining in said calendar year, such pro rata rate to be figured from the first day of each month. The license fee shall be paid to the Tax Assessor and Collector of the City of Beaumont after the applicant has filed the application herein provided with the City Manager, and secured said license as provided herein.
“(b) Any license granted under this Ordinance shall be subject to revocation by the City Commission of the City of Beaumont after due notice to the holder of such license and hearing thereon upon proof of the violation of any of the provisions of this Ordinance.
“Section 5
“(a) Each licensee hereunder shall keep a complete set of records showing a list of loans made, giving the name and address of the borrower or borrowers, the amount of cash actually lent and the amount of principal and interest the borrower agreed to pay, whether such transaction was an •original lending or a renewal of an existing loan, the amount of money paid to the licensee by the borrower, and how such payment was credited; that such books and records shall at all reasonable times during business hours be subject to inspection by the City Manager of the City of Beaumont and his duly authorized agents.
“Section 6 *
“It shall be unlawful for any licensee hereunder, his agents, servants or employees, to communicate with the employer of any borrower relating to any loan made by the licensee to the borrower with intent to harass or annoy the employer of the borrower.
“Section 7
“(a) Any person as defined in this Ordinance who shall violate any of the provisions-of this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction" thereof shall be fined in any sum not to exceed Two Hundred ($200.00) Dollars; and each day any business is operated without a license as herein provided for shall be considered a separate offense.
“(b) Any person who shall aid, abet or assist in the violation of any provision of this Ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be fined not to exceed Two Hundred ($200.00) Dollars.
“Section 8
“This Ordinance shall not apply to any person, co-partnership, association or corporation doing business under and as permitted by the laws of this State or the United States, relating to banks, saving banks, trust companies, building, and loan companies, Morris Plan banks, licensed credit unions, licensed rural credit unions, agricultural and live stock pools and farmers’ cooperative societies.
“Section 9
“If any section, sub-section, sentence, clause, phrase or part of this Ordinance is for any reason held to be unconstitutional, void or invalid, the validity of the remaining portion of this Ordinance shall not be affected thereby, it being the intent of the City Commission in adopting, and of the Mayor in approving this Ordinance that no portion hereof, or provisions or regulation contained herein, shall become inoperative or fail by reason of any unconstitutionality or invalidity of any section, sub-section, sentence, clause, phrase, portion, provision or regulation of this Ordinance.
“Section 10
“Any ordinance inconsistent with any of the terms and provisions of this Ordinance is hereby repealed, provided, however, that such repeal shall be only to the extent of such inconsistency, and in all other respects this Ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this Ordiance.
“Passed by an affirmative vote of all members of the City Commission, this the 7th day of November, A. D. 1939.
“R. A. Coale
“Mayor.”

Appellees are engaged in the business of loaning money without security in the City of Beaumont. They assailed the ordinance as being unconstitutional for many reasons. The ordinance above set out was duly passed by the City of Beaumont, and is in full force and effect unless it is invalid for some reason asserted by appellees. In other words, under the record before us, we are called upon to determine whether or not the ordinance is valid.

The City of Beaumont is what is commonly designated as a “Home Rule City,” and operates under a charter. By express provisions of our constitutional and statutory laws, no ordinance of a city operating under a home rule charter can contain any provision inconsistent with our Constitution, or the general laws of this state. Section 5, Article 11, Texas Constitution, Vernon’s Ann.Civ.St.; Article 1165, R.C.S. 1925; 30 Texas Jur. pp. 301-306, and notes. Carroll et al. contend that this ordinance violates the above constitutional and statutory provisions in many particulars. Without extended discussion, we overrule this contention, for the reason that we think the ordinance in question has been held to be valid in its entirety by the Supreme Court in Berry v. City of Fort Worth, 132 Tex. 599, 124 S.W.2d 842, 847. In the cited case appellants challenged the validity of an ordinance of the City of Fort Worth having for its purpose the same as the instant ordinance. The contest reached the Supreme Court and in writing the opinion Judge Critz included in his opinion the whole of the Fort Worth ordinance. Certain portions of the ordinance were held invalid, and the remainder were held valid, Judge Critz saying: “Section 15 of this ordinance stipulates, in effect, that if any part of it is invalid, such invalid portions shall not affect the balance. We give effect to this provision, and hold that the parts of this ordinance not herein-above held invalid are valid.” (Italics ours.) That decision was rendered before the enactment of the 'ordinance here in question. It appears that in drawing the City of Beaumont ordinance the portions of the Fort Worth ordinance held valid by the Supreme Court were taken bodily and combined into the ordinance in controversy. It was so stated by counsel for the City of Beaumont on oral submission, and is shown to be true by comparison of the ordinances. No other matters are involved. So all of the provisions of the ordinance here questioned have been considered and held valid by the Supreme Court, and are thus the law.

It seems to be the' contention of appel-lees that the Supreme Court in Ex parte Hughes, 129 S.W.2d 270, modified its opinion in the Berry case. In the Hughes case the question of usury was the controlling issue. In the Berry case the portions of the ordinance relatin'g to usury were stricken as invalid. Usury is not involved in any manner in the instant ordinance. Those portions of the Fort Worth ordinance dealing with usury and held to be invalid were studiously' avoided and omitted in their entirety from the ordinance here considered.

It is contended that the case on its merits can not be here considered, and that the case must be tried on the record, and that the record consists only of the petition of appellees and the order of the court granting the temporary' injunction, and that all of the allegations in appellees’ petition must be taken as true, and that it rested within the sound discretion of the court to grant or refuse the injunction. All this we grant, but if the allegations in the petition measured by the yard stick of the known law applicable fails to state grounds for granting the injunction, then there was no discretion to be exercised by the court, and the writ was improvidently granted. Appellees attached to their petition a copy of the ordinance challenged to be considered with their allegations of facts as to whether the injunction should be granted. The facts alleged and the contents of the ordinance must be considered together. The provisions of the ordinance having been fully considered by the Supreme Court in the Berry case, and there held valid, the petition of appellees on its face, when considered and measured by the known law, disclosed the validity of the ordinance in all its parts, and showed that no grounds existed for the granting of the injunction.

From what we have said, the judgment must be reversed and the injunction dissolved, and it is so ordered.


author: WALKER, Chief Justice.

text:
    CHAISON et al. v. CHAISON.
    No. 3590.
    'Court of Civil Appeals of Texas. Beaumont.
    Jan. 18, 1940.
    Rehearing Denied Jan. 24, 1940.
    Geo. E. Holland and LeRoy McCall, both of Beaumont, for appellants.
    C. A. Lord, of Beaumont, for appellee.
   WALKER, Chief Justice.

On the 24th day of January, 1928, W. G. Chaison, as trustor, and Chas. J. Chaison, Jef C. Russell, and Brandon Bryan, as trustees, entered into the following written contract:

“The State of Texas
“County of Jefferson
“Memoranda of Agreement by and among W. G. Chaison, hereinafter referred to as Trustor, of said county and State, and Charles J. Chaison, Jef C. Russell and Brandon Bryan, of the county of Jefferson and State of Texas, and their successors in trust, hereinafter referred to as Trustees, Witnesseth:
“The several parties hereto join herein, and bind themselves to the various and sundry provisions of this agreement in recognition and in consideration of benefits, •directly and indirectly, moving to them hereunder or in consideration of the transfer of values from Trustor herein as hereby effected.
“Trustor hereby assigns, transfers and delivers unto said trustees one hundred ten (110) shares of the capital stock of Jef Chaison Townsite Company, the same being evidence by certificate No. 59:
“To Have and to Hold unto the said Trustees for the uses and purposes hereinafter set out, to-wit:
“First: That said Trustees shall have full power to vote said shares of stock at any corporate meeting of said company as fully as Trustor could if present and participating therein, conditioned only that such voting of said stock shall not defeat the purpose of this trust.
“Second: That in the event of the death of either of the Trustees herein provided, the vacancy so created shall be filled within thirty (30) days after the happening of such event by Eloise Chaison, my niece, if living. If my said niece be not living, or be incapacitated or unwilling to perform the duty or duties of Trustee, and if the two remaining Trustees are unable to agree on the successor of the deceased Trustee, then Trustor reserves the right with either of said remaining -Trustees to designate such third Trustee and in the event of the death of Trustor before the expiration of this trust, the majority in interest of Trustor’s legal heirs may act as a unit with either of said remaining Trustees to designate such successor. The designation of any succeeding Trustee shall be made in writing within thirty (30) days after the death or inability to act of any of the Trustees named herein and their successors, and attached hereto.
“Third: That the Trustees acting hereunder shall be liable only for the exercise of ordinary care in the performance of this trust.
“Fourth: That the trustor hereby parts with all title and interest in the shares of stock hereby assigned, except such interest and rights as are specifically retained herein. Said rights or interest retained herein by Trustor are not assignable, and no debt- or other obligation created or to be created by Trustor, or his heirs, shall be chargeable against this Trust, except as herein provided. ■
“Fifth: That during the period of this trust, the Trustee in office, if the corporate existence of' Jef Chaison 'Townsite Company shall continue so long, shall have the right and duty so far as they may be able to do so1, to collect all dividends on said stock from the said Jef Chaison Townsite Company and pay to said Trustor from said dividends or otherwise as herein provided, the sum of not less than Three Hundred & No/100 ($300.00) Dollars per month. When the dividends payable for any year .shall exceed Thirty-six Hundred .& No/100 ($3,600.00) Dollars, the excess thereof shall be payabe to trustor in the discretion of Trustees or may be invested for th,e use and benefit of Trustor, in stocks, bonds .or other property, real or personal. .In the ..event dividends on said stock are pot sufficient to pay said Three Hundred & i No/100 .,($300.00) Dollars per month, said Trustees shall pay him said amount, "to which end and for the other purposes herein set out, said Trustees are hereby authorized to sell or hypothecate said stock.
“Sixth: That the Trustees shall have full power to pay from the sale, hypothecation of said stock, or from monies of Trustor in the hands of the Trustees, as herein provided, any and all indebtedness payable by Trustor to. Jef Chaison Town-site Company, or to other persons or corporations, advancing the necessary expenses to carry out the purposes of this trust, and it shall be the duty of the said Trustees upon the option of said Trustees or of said Jef Chaison Townsite Company .made known to said Trustees in writing, subsequent to the time Trustor may become indebted to said company, to sell said stock, or any part of same, for cash at not less than the then book value of said stock and after paying Trustor’s then indebtedness to said company to invest the remnant of said funds, if any, for Trustor’s use and benefit, according to the judgment of the Trustees then acting hereunder. In the event of a liquidation of said company prior to the sale of Trustor’s stock, the said Trustees shall have the power and it shall be their duty to invest the liquidating dividends payable on said stock after payment of said indebtedness of Trustor to said company, as hereinabove provided for the investment of the proceeds of the sale of said stock.
“Seventh: The Trustees hereby bind and obligate themselves, pending the time .they may sell or 'hypothecate the said stock, to advance to Trustor on the first day of each- month, either in dividends or the proceeds of sale or hypothecation of said stock, not less than Three Hundred & No/100 ($300.00) Dollars per month until liquidation of said company, and, in addition thereto, to advance for the account of Trustor chargeable against his dividends or against the proceeds of the sale or hypothecation of said stock, the taxes, insurance and necessary upkeep- on Trustor’s present homestead and reasonable expenses necessary for the burial of Trustor, or his children.
“Eighth: At the termination of this Trust, the benefits of this trust shall inure in equal interests to such of his children as may be living. If all of Trustor’s said children are not living at the expiration of this Trust, then the benefits- accruing to the deceased child or children, under this paragraph, shall pass and vest per stirpes, in the child or children, if any there be, of said deceased child or children, and if one or more of said children shall die without issue then the benefits accruing to said child or ■ children, under this paragraph, shall pass in equal interests to the brothers and sisters of said child or children; provided, however, that any advancements made to the children of Trustor either before or after his death, shall be chargeable against said child and taken out of the proportionate part coming to said child or children under the terms of this Trust.
“Ninth: This Trust shall be effective for a period of not less than Fifteen (IS) years and during the natural life of Trustor and for six (6) months after his death.
“In Witness Whereof, the parties hereto have signed their names in quadruple originals at Beaumont, Texas, this 24th day of January, A. D. 1928.
“[Signed] W. G. Chaison, Trustor
“Chas. J. Chaison
“Jef C. Russell
“Brnadon Bryan, Trustees.”

On the execution and delivery of this instrument, all parties entered upon its execution in the manner set out therein.

On the 30th day of July, 1938, W. G. Chaison executed his last will and testament, which, omitting formal parts, was as follows: “I do hereby give and bequeath to my beloved wife, Ella Arnett Chaison, in fee simple, to use and sell or otherwise dispose of as she may see fit, my homestead situated on Lots seven' (7) to ten (10), inclusive, block sixty-five (65) of the Jef Chaison Second Addition to the city of Beaumont, Jefferson County, Texas. * * * It is my will and desire all the balance of my property, both real and personal that I may die seized and possessed of, after the payment of all my just debts, together with the expense incident to the probating of this will, shall pass to and vest in fee simple as follows, to-wit: To my wife, Ella Arnett Chaison, an undivided one-half (1/2); To my daughter, Juanita Chaison Miller, an undivided one-eighth (1/8); To my daughter, Clara Dora Chaison Carson, an undivided one-eighth (1/8); To my daughter, Margaret Chaison Matthews, an undivided one-eighth (1/8); To my son, Jef David Chaison, an undivided one-eighth (1/8).”

W. G. Chaison died in Jefferson county on the 4th day of August, 1938, and the will as copied herein was duly probated as his last will and testament, and the widow, Mrs. Ella Arnett Chaison, duly qualified as the sole executrix of the will and the estate.

We take from the brief filed by the trustees, the following statement of the nature and result of this suit, supplemented by the foregoing statement:

“This is an action by Ella Arnett Chaison, independent executrix of the estate of her deceased husband, Wm. G. Chaison, against Charles J. Chaison and others to recover certain personal property and for an accounting.
“It was alleged in her petition that Wm. G. Chaison at the time of his death owned 110 shares of the capital stock of the Jef Chaison Townsite Company, a corporation, and that defendants are in possession of same and refuse to' surrender to her the possession and control of same. That they, without lawful right, vote same at corporate meetings to the exclusion of plaintiff. That said stock earns large dividends which are declared and defendants have taken and retained same without lawful right. That defendants do not claim to own said stock but claim the right of possession and to vote same and receive the dividends until January 24, 1943, under some character of power of attorney from Wm. G. Chaison, deceased, which confers no such powers and if same ever had any validity it became of no effect upon the death of Wm. G. Chaison, and his said stock and dividends passed by his will to plaintiff.
“The prayer is that she have full accounting and judgment for said stock and dividends, with costs, etc.
“Defendants urged by plea in abatement the non joinder of necessary parties, to-wit; the named children of Wm. G. Chaison, deceased, who were asserting as against all persons, claim of ownership in themselves of the properties in controversy, under written conveyance from their father to defendants as Trustees of date January 24, 1928. (The instrument is copied in full in the foregoing statement.) The plea of non joinder of necessary parties was overruled by the court and exception duly preserved.
“The plea in abatement was followed by general denial, special answer and plea for affirmative relief in which it is alleged that defendants hold 70 shares of stock in Jef Chaison Townsite Company, jointly as Trustees and to their credit as such Trustees of date April 13, 1939, the sum of $1,229.21, all of which are so held and to be disposed of under the provisions of the Trust Agreement above set out. That they have no interest of any character in said properties; that they are naked trustees thereof and same are, under the provisions of said Trust Agreement, now owned by the named children of Wm. G. Chaison, deceased. That there is, as shown by this suit, a disagreement and controversy as to the ownership of said properties, between the plaintiff, the mother of the said children, and said children and in which controversy defendants are in no way interested except as bound by their trust contract, and agreement. They make full accounting of their Trusteeship, showing the properties and moneys in their hands, disclaim any interest therein otherwise than as Trustees, tender same into court and ask to be fully discharged. They show that certain demands are being asserted against said property and money, by the United States Government, as the property of Wm. G. Chaison, deceased, in the nature of inheritance and other taxes and also in favor of the State of Texas of like nature and on account of such the properties should be preserved and protected until such claims are satisfied. It is further alleged that the children of Wm. G. Chaison, deceased, should be charged with certain advances made them and that as to all of these mailers the named children are necessary parties to this action.
“The prayer was as follows:
“ ‘In view of the premises, these defendants now here tender into court all of said properties and monies and asks to be fully protected against all claims thereto1 by the judgment of this court and that their accounting be approved and that they be fully discharged from further connection with or holding said properties and that said trust agreement be voided and set aside and for naught hereafter held and that the court take said properties into its custody and require the interested parties and each and all of same, as hereinbefore named, to be and appear before this court that their interests therein may be determined and their rights fixed and enforced by the court as against said properties and in relation thereto and their claims and demands against these defendants be fully set out and fixed, determined and established and that these defendants be fully acquitted of all responsibility and liabilities by reason of the matters and things here-inbefore set out and that they be discharged herein with their costs on final trial and that they be allowed as costs in this suit a reasonable attorney’s fee for legal services in the handling and conduct of the matters hereinbefore set out, which said sum defendants allege to be the sum of One Thousand ($1,000.00) Dollars and that said properties be by the court turned over to the parties decreed by the court to be entitled thereto upon such terms and in such sums and amount as to the court may on trial find correct and that the claims and demands of the Federal and State Government thereon be preserved and protected and as against these defendants be fully so preserved and protected as to relieve these defendants of all liability with reference thereto and of all of which these defendants put themselves upon the country.’
“Clara Chaison Carson, one of the named children of Wm. G. Chaison, deceased, and his surviving wife, plaintiff herein, with leave of court intervened and for cause of action alleged, (1) That on January 24, 1928, Wm. G. Chaison made the Trust Contract with defendants set out in defendants answer and that intervenor and the other named children of Wm. G. Chaison, deceased, are the sole beneficiaries thereunder and that the full equitable title to all said properties is vested in them. She further alleges that about January 1, 1933, the plaintiff and Wm. G. Chaison, deceased, executed a written contract exhibited, by those terms the Trust Contract set out in defendant’s pleadings was fully ratified and that title should stand vested in said children as provided therein. Intervenor prayed that all other beneficiaries named in the trust agreement, being the children of Wm. G. Chaison, deceased, be made parties and cited to answer and on hearing that intervenor be- given judgment, for one-fourth of the properties and moneys in controversy and that plaintiff take nothing. Plaintiff moved to strike out this intervention on the ground that ‘on the face of said intervention it appears that the intervenor has no interest in the subject matter of t-his suit.’ This motion was overruled; the court holding ‘that while in-tervenor is not a necessary party to the suit, she is not an improper party.’
“Plaintiffs accepted the statement of the account as made by defendants as in all things correct and thereupon the court ordered the properties placed in the registry of the court under defendants tender and in pursúance thereof, to which intervenor excepted.
“The subject matter of the suit being in the registry of the Court under the order of the court, plaintiff then filed what is termed a ‘Motion for judgment on the record and on the pleadings’ reading as follows:
“ 'Comes now Mrs. Ella Arnett Chaison, executrix, plaintiff in the above entitled and numbered cause, after the court has ordered and adjudged that this plaintiff and the defendants are the only necessary parties to this cause; and after the defendants have, in their answer duly filed herein, disclaimed all title and interest in the corporate stock in controversy in this suit; and after the defendants have tendered a full accounting to the plaintiff in their answer, showing that the defendants, Chas. J. Chaison, Jef C. Russell and Brandon C. Bryan, have in their hands seventy (70) shares of the capital stock of Jef Chaison Townsite Company sued for by the plaintiff herein, and showing that they have in their hands the sum of $1,229.21 in cash that has come into their hands under the terms of an agreement set forth in “Exhibit A” made a part of the answer of the defendants; and after the defendants have come before the court and tendered all of said corporate stock so remaining in their hands, and the said sum of money, praying that their accounting be approved as set forth in their answer and that they be fully discharged and the agreement above referred to be voided and set aside and for naught hereafter held; and after the plaintiff has accepted the said tender and after this court has entered its order directing and requiring the defendants to deposit all of the said seventy (70) shares of stock and the said money with the Clerk of this court as per the order of the court which is a part of the record in this cause:
“ ‘And now shows to the court that there is no issue of fact as between the plaintiff and the defendants to be determined in this cause, so that the court, in the present state of the record, can enter judgment on the record and .the pleadings in this cause, and the plaintiff now moves the court to so enter judgment against the defendants for the title and possession of the said seventy (70) shares of the corporate stock of the Jef Chaison Townsite Company, and for the sum of $1,229.21 in cash, and all other and further relief to which she may be entitled in the premises.’
“The court sustained this motion and entered judgment in the cause as follows:
“ ‘The said motion of the plaintiff is in all things granted, and it is here now Ordered, Adjudged and Decreed that the plaintiff, Mrs. Ella Arnett Chaison, as the executrix of the Will and Estate of Wm. G. Chaison, deceased, do have and recover of and from the defendants, Chas. J. Chaison, Brandon C. Bryan and Jef C. Russell, and.each and all of them, the title and possession of. the seventy (70) shares of the capital stock of the defendant Jef Chaison Townsite Company heretofore held by said defendants; and it is further Ordered, Adjudged and Decreed by the court that the plaintiff do have and recover of and from all of the defendants the sum of $1,229.21, which sum the defendants have admitted to be in their hands, and it is further Ordered, Adjudged and Decreed by the court that the plaintiff do have and recover of and from the defendants all other and further sums of money that have come into their hands or accrued as dividends on the said stock since April 13th, 1939, or that may hereafter accrue.
“ ‘It is further Ordered, Adjudged and Decreed by the court that the defendant Jef Chaison Townsite Company issue and deliver to the plaintiff, Mrs. Ella Arnett Chaison, executrix of the estate of Wm. G. Chaison, deceased, proper and sufficient stock certificate representing • the said seventy (70) shares of stock in said corporation hereinabove referred to; and in this connection it is Ordered, Adjudged and Decreed by the court that the said certificates of stock now in the hands of the Clerk of this court be turned over and delivered to the plaintiff herein, and that the same shall be by her surrendered to the defendant Jef Chaison Townsite Company upon delivery by it to the plaintiff of the said certificate of stock above referred to, and in exchange therefor:
“ ‘It is further Ordered, Adjudged and Decreed by the court that the compliance with and satisfaction of this judgment by the defendants shall operate as and be a complete and conclusive accounting in all respects as prayed for by the plaintiff in her petition, and a full discharge of all of the matters in controversy as set forth in the plaintiff’s petition.
“ ‘And it further appearing to the court that under the pleadings of the intervenor, Clara Chaison Carson, wife of G. L. Carson, and the exhibits thereto attached and made a part thereof, that the said inter-venor has no interest in the matters in controversy in this suit as between the plaintiff and the defendants, and that she would in no event be entitled to recover in this case as against either the plaintiff or the defendants; and it appearing to the court that said intervenor could have no interest in the subject-matters involved in the suit between the plaintiff and the defendants; it is, therefore, further, Ordered, Adjudged and Decreed by the court that the said intervenor have and recover nothing by her said intervention.
“ ‘It is further Ordered, Adjudged and Decreed by the court that the defendants pay all costs of this suit except the costs accrued in connection with said intervention, and as to the same it is Ordered that the intervenor herein shall pay all such costs.
“ ‘It is further Ordered that the plaintiff • may have her execution against the defendants as often and as many as may be necessary, and that the officers of this court may have their execution for their costs as herein adjudged. To which orders and judgment of the court defendants and intervenor in open court except and give notice of appeal to the Court of Civil Appeals of'the Ninth Supreme Judicial District of Texas at Beaumont, Texas.’ ”

The trustees and intervenor have duly prosecuted their appeal from the judgment of the lower court on the controlling proposition that the children of Wm. G. Chaison named in the trust deed were necessary parties to this litigation. We sustain appellants’ contention.

By the trust deed, the trustees agreed to perform certain duties and to hold the property committed to them on the conditions and for the uses and persons named in the deed. Having assumed these duties, they could not voluntarily abandon their trust, nor could they refuse to discharge their trust obligations. ■ When ap-pellee filed her suit against them they brought into court all the trust property, and tendered it to court, pleading a bona fide controversy as to its title and revenues between appellee and the children of Wm. G. Chaison, named in the trust deed. They prayed that the children be cited as adverse claimants to appear and to assert their claim and interest in the property, and that the claim of 'appellee under her husband’s will and the claim of the children under the trust deed be fully adjudicated.

The trustees had no personal interest in the property, and by their pleadings so advised the court. But they did have duties and obligations under the trust deed, and these duties and obligations they plead in detail. On the facts alleged by appellee in her petition and by the trustees in their answer, the lower court was without power to enter judgment, on the tender by the trustees, discharging them from the obligations assumed by them under the trust deed — the obligations to the children, advanced by the children as an adverse claim to the trust property.

Having been summonsed into court by appellee to account for their stewardship, the trustees had the right to a final adjudication of all their obligations under the trust deed, both their obligations to appellee on the title asserted under her husband’s will and the adverse claim by the children under the trust deed. On the good-faith controversy plead by the trustees between appellee and the children,, they had the right to file their answer in the nature of an interpleader and to recover their costs, including reasonable attorneys fees as interpleaders. This judgment the court could not enter without having in court the children of Wm. G. Chaison named in the trust deed.

We do not make a construction of the trust deed for the simple reason that the necessary parties are not in court. Anything we might say as to the meaning of the trust deed, adjudicating the rights of the children of W. G. Chaison, would be pure obiter and without authority.

For the reasons stated, the judgment of the lower court is reversed and the cause remanded for a new trial, with instructions to the lower court that all adverse claimants under the trust deed, on the prayer of the trustees, be made parties to this litigation.

Reversed and remanded.

O’QUINN, J., recused, not sitting.