author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    SEALS v. STATE.
    No. 20775.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Rehearing Denied April 24, 1940.
    Lester S. Cross and Al L. Crystal, both of Caldwell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in Burleson County for the murder of A. C. Walton with malice, by shooting him with a gun, and his punishment was assessed at twenty years in the penitentiary.

The offense is alleged to have been committed on the 20th day of May, 1938.

This is the second appeal. The opinion in the former appeal will be found in 137 Tex.Cr.R. 23, 127 S.W.2d 908. The facts therein stated will not be repeated.

Both parties were negroes. The deceased was a merchant, and the appellant’s wife had worked for him. Jealousy had arisen on the part of the appellant and the contention is made that he killed the deceased because of his conduct with his wife. He also details circumstances under which he claims the right of self-defense. Appellant had attempted to talk 'with the deceased but it seems tljat for some reason the deceased evaded him. The reason for his doing so is immaterial. At the time of the killing appellant waylaid the deceased, placed an obstruction on the highway to stop his car, and having armed himself, he approached the deceased and demanded a conversation. If deceased had, under such circumstances, attempted to shoot the appellant and had succeeded in doing so, he would appear to have an issue of .self-defense behind which would be more forceful circumstances than those supporting the appellant. Both parties could not have that right. If the jury so viewed it in finding' the appellant guilty, they were warranted by the evidence in reaching that conclusion.

Among the principal contentions in this appeal is that raised by Bills of Exception Nos. 1 and 2 which complain that the appellant has been discriminated against in that he is a man of the colored race; that he was indicted by a grand jury from which men of his race had been excluded and that he was tried by a jury exclusively of white men. The complaint is that the appellant had been discriminated against and not that his race was so treated. The grand jury returning the indictment had been selected before the commission of the crime, and there could have been nothing personal in selecting the grand jury. Assuming that it was meant to complain that the negro race had been discriminated against, we have carefully examined the record and are unable to find any evidence of such discrimination. The jury commissioners testified that in selecting the jury they were concerned only with following the court’s instruction to get good and capable grand jurors and that they did so without any thought of race, color or class of individuals; that they picked men from various sections of the county, taking from each community the best man for service whom they knew. One commissioner said that he did not know a negro would be qualified under the law to serve on the jury, otherwise he would have given consideration to selecting one. This gives rise to the suggestion that commissioners charged with the duty of selecting both the grand jurors and petit jurors may need to have instructions from the court as to who are qualified. A misconception of the law might, under frequent circumstances, result in wasteful litigation.

It is presented in these bills that about fourteen per cent of the poll taxes paid in Burleson County are by negroes, but there is nothing to show how many of these are qualified jurors. Neither is there any intimation in the record that any influence was exercised, .that any device was used, or any particular precaution taken, to exclude negroes from jury service. The testimony which the appellant produces, in fact, affirmatively shows that the subject was not in the minds of the jury commissioners who, under the facts of this case, appear to have been wholly responsible for the jurors selected. Each one asserts that the subject was not discussed or considered by either of them; that they had no prejudice against jury service by negroes or any class of persons, and that their object and intentions were to follow the law as they understood it.

This question has been frequently before this court, and it has been considered by the Supreme Court of the United States in recent decisions, namely, Pierre v. Louisiana, 306 U.S. 354-362, 59 S.Ct. 536, 83 L.Ed. 757; Norris v. Alabama, 294 U.S. 587-599, 55 S.Ct. 579, 79 L.Ed. 1074. On such authorities, we have concluded that no discrimination is shown. Langrum v. State, 128 Tex.Cr.R. 23, 78 S.W.2d 973; Brown v. State, 130 Tex.Cr.R. 276, 94 S.W.2d 169; Mitchell v. State, 132 Tex.Cr.R. 491, 105 S.W.2d 246; Ryan v. State, 136 Tex.Cr.R. 140, 123 S.W.2d 659; Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344; Hamilton v. State, Tex.Cr.App., 135 S.W. 2d 476.

The various bills of exception are overruled with the exception of Bill No. 6, which complains of the refusal to admit the testimony of Francis Potts to the effect that the decéased had come to his home at 5105 Eleventh Street, Houston, Texas, on Sunday night previous to the homicide and visited the appellant’s wife in her room from 2 o’clock in the morning and through the rest of the night. Appellant had testified that Jack Liston had given him information prior to the tragedy that the deceased had spent the Sunday night with appellant’s wife in Houston and this evidence from Francis Potts was for the purpose of corroborating the appellant in such statement. Subsequent to the trial' of this case, the exact question was before this court in Stewart v. State, Tex.Cr.App., 135 S.W.2d 103. The question was there rai.sed under identical circumstances to those before us. The evidence was held to be admissible. For the reasons there stated, we think that appellant’s Bill of Exception No. 6 should be sustained. Accordingly, this case is reversed and remanded for a new trial.

On State’s Motion for Rehearing.

KRUEGER, Judge.

The State, in its motion for a rehearing, seriously contends that we erred in two respects in holding that Appellant’s Bill of Exception No. 6 reflects reversible error: First, because the bill is deficient, vague and indefinite; and second, because the testimony of Francis Potts, which the court, upon objection by the State excluded, was admissible. The bill within and of itself is deficient, but it refers to pages 94 and 63 of the statement of facts and makes the same a part of the bill which, in our opinion, entitles it to consideration. Jack Liston was offered as a witness by the State. He testified on his direct examination that on Sunday before the deceased was killed on Friday, he and Isaac Whiting accompanied the deceased to Houston. That on Wednesday before the killing, he had a conversation with the appellant. That in this conversation appellant told him that he, appellant, was going to kill the deceased. That appellant asked him if he, Liston, had seen his, appellant’s, wife in Houston. The witness told him that he had not. On cross-examination he testified that after they arrived in Houston on Sunday he, the witness, spent the night at the home of an aunt; that Whiting spent the night at a> hotel and the deceased said he was going to spend the night at the home of Rev. Lucas. The witness denied having told appellant on Wednesday or Thursday preceding the killing that the deceased had spent Sunday night with appellant’s wife at the home of Francis Potts. Appellant testified that the day before the killing the witness, Jack Liston, told him that the deceased spent the preceding Sunday nighf with his, appellant’s, wife at the home of Potts.

From the foregoing statement it is obvious that the testimony of Liston and that of appellant was in sharp conflict. Appellant then offered Francis Potts as a witness, by whom he would have proved, if permitted by the court, that appellant’s wife was rooming at Potts’ home; that on Sunday night preceding the Friday of the killing, the deceased came to the Potts’ home and asked to see appellant’s wife. That he, Potts, admitted deceased and directed him to the room occupied by appellant’s wife where .he spent the night with her, but he did not inform appellant or any other person of this occurrence.

It was the State’s theory tliat appellant killed the deceased without cause or provocation. It .was appellant’s contention that he killed the deceased because the deceased had alienated his wife’s affection and broken up his home.

In view of the sharp conflict in the testimony on a vital issue in the case, it occurs to us that the excluded testimony became material in that it gave weight and verity to appellant’s testimony and tended to sustain his contention of illicit relations existing between his wife and deceased and that he had been informed thereof. With this testimony before the jury, is it not reasonable to conclude that the jury might have given more credit and greater weight to the appellant’s theory and found him guilty of murder without malice instead of murder with malice ?

In the case of McAnear v. State, 43 Tex. Cr.R. 518, 67 S.W. 117, 118, the appellant found an unsigned letter in a dresser drawer of his sister’s room. The general tenor thereof convinced appellant that a married man had written it. On the day of the killing appellant went into the store where the deceased was employed and discovered the deceased talking with his, appellant’s, sister. This led him to believe that the deceased was the author of the unsigned letter. On the day of the killing the deceased invited appellant and his brother to go home with him. After they arrived at home, the deceased picked up a feather bed and cover, remarked, as he did so, that it was too hot to sleep in the house and dragged it out on the gallery. Appellant said to the deceased, “We did not come here to stay all night. * * * We have reason to believe that you are the party that has been writing to our sister, and who stayed with her all of Tuesday night.” To which deceased replied, “Yes, by God! it was me, if you want to know the truth about it!” Whereupon appellant shot him five times. Appellant testified he shot deceased because he had ruined his sister, etc. Upon the trial appellant offered to introduce in evidence certain letters, together 'with a “cundrum” found on the body of the deceased shortly after he was killed. The letters appeared to be in the handwriting of the deceased and one, at least, was in the handwriting of the appellant’s sister. The court excluded these letters on the ground that appellant had no knowledge of the letters prior to the killing; and appellant’s sister stated that she had not seen either of the letters except the one she had written. This court in passing on the question said: “This testimony, as stated, if true, would have demonstrated to the jury, beyond any reasonable doubt, that the cause of the killing was the improper relation of deceased with appellant’s sister. The fact that she testified to said relationship upon the trial, and the fact that appellant testified that deceased admitted the relation to him, would not be a basis or cause for the exclusion of letters found in his trunk or in his possession, where such letters are identified as having been .written'by deceased or by appellant’s sister. Said testimony would be strong and cogent corroboration of the oral testimony adduced by appellant * * * and clearly should have been admitted.”

In support of what we have said we refer to Bereal v. State, 88 Tex.Cr.R. 138, 141, 225 S.W. 252; Powers v. State, 88 Tex.Cr.R. 457, 460, 227 S.W. 671.

Having reached the conclusion that the case was properly disposed of originally, the State’s 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.


source: Caselaw Access Project

author: KRUEGER, Judge.

license: Public Domain

text:
    TERRELL v. STATE.
    No. 20986.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    Bennett & Bennett, of Normangee, 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 five years.

* The State’s testimony, briefly stated, shows that on the 18th day of July, 1938, while Allie Fay Mott was at home by herself, appellant came there and had two acts of sexual intercourse with her, she being then a few months past fourteen years of age. She made no report thereof to her father or mother until the 12th day of March, 1939, when her baby was born.

Appellant took the witness stand, denied 'that he ever had sexual intercourse with her, and offered some evidence to the effect that she went to church and public meetings with boys. However, he and his witnesses admitted that in all instances she was accompanied by her folks and others. He failed to show any conduct on her part from which a conclusion might be drawn that she had ever, theretofore or since then, engaged in sexual intercourse with other men. It will be noted that whether the appellant or somé other man was the father of her child was an issue of fact which the jury decided adversely to him.

Appellant’s first complaint is that the trial court erred in overruling his motion, to quash the indictment on the ground that the court, on the 24th day of April, 1939, called a special term of the District Court in and for Madison’ County to continue for a period of'three weeks. His reason for calling the special term was because the Legislature had a bill pending which would shorten the regular May term by two weeks and would not leave sufficient time in which to dispose of the cases on the docket of said court. In said order the court directed the clerk to issue process commanding the sheriff to summon the grand jury which had theretofore been ’ regularly drawn for grand jury service for the regular May term to be and appear for service during such special term of court. It appears from the record that appellant was under bond, charged with the offense, to appear before the grand jury at the regular May term.

Art. 1920, R.C.S., provides as follows: ■“Whenever a district judge deems it advisable to hold a special term of the district court in any county in his district, such special term may be held; and such judge may convene such term at any time which may be fixed by him. Such district judge may appoint jury commissioners, who may select and draw grand and petit jurors in accordance with the law. Such jurors may "be summoned to appear before such district court at such time as may’be designated by the judge thereof. In the discretion of the ■district judg’e, a grand jury need not be ■drawn or empaneled. No 'new civil cases ■can be brought to a special term of the district court.”

It is obvious from the foregoing •statute that the Legislature made adequate provision for the appointment of jury commissioners to select grand and petit jurors for special terms of court. This provision of the statute, it seems to us,, is as binding upon the court in calling and holding a special term as much as those articles of the statute relating to regular terms. There is no more reason for disregarding one than the other. In the case of Woolen v. State, 68 Tex.Cr.R. 189, 150 S.W. 1165; 1166, the District Judge had the jury commissioners to draw grand and petit jurors for the next three succeeding terms of court instead of only the next succeeding term as provided by statute. At the second succeeding term of said court the grand jury so drawn indicted Woolen. He moved .to quash the indictment on the ground that the indictment was not the act of a regularly constituted grand jury. The trial court overruled the motion and Woolen duly excepted. This court in passing, upon the question said: “The manner of selecting grand and,petit juries is left entirely to the legislative department, and article 2, § 1, of the Constitution, provides that neither of the three departments shall ever invade the province and duties of the other.”

The court further said: “Whenever the Legislature has provided the method and means by which a jury may or must be selected, the judiciary is not authorized, because of some idea they may entertain of expediency * * * to abrogate and set aside the plain provisions of statutory enactment.”

It seems to us that if the Legislature had intended that trial courts may empanel a grand jury at a special term which was drawn at a preceding term for service at the next regular succeeding term of court,- they might have said so instead of making provision for the appointment of jury commissioners at a special term to select grand and petit juries. Courts áre required to follow the means and methods provided by the Legislature in the selection of grand and petit juries. They cannot any more disregard the mandatory provisions in this respect than in any other. We think that the rule announced by this court in the cases of Martinez v. State, 134 Tex. Cr. R. 180, 114 S.W.2d 874, and Dillard v. State, 134 Tex.Cr.R. 220, 115 S.W.2d 415., is somewhat analogous in principle to the question here under consideration.

Appellant was under bond to appear before the grand jury at the regular May term, at which time he might exercise his right of challenge as provided by Art. 358, C.C.P. In this instance, the order calling the special term is dated April. 24, 1939, and on the same day, the court empaneled the grand jury, which had been drawn for the May term, to perform grand jury service for the special April term. It does not appear that appellant had any notice of the calling of the special term and that a grand jury would be empaneled. Consequently, he had no opportunity to challenge the array; he was deprived of that statutory right in the event the statutory grounds existed for the exercise thereof. We have read with much interest the case of Hickox v. State, 95 Tex.Cr.R. 173, 253 S.W. 823, as well as the opinion by Judge Hawkins, on a motion for rehearing in that case. It in effect holds that if appellant had shown in his motion to quash the indictment on any statutory grounds for challenge that his motion would have been timely. In this case the motion comes within the rule there announced.

Having reached the conclusion that the motion to quash the indictment should have been sustained, the judgment of the trial court is reversed and the prosecution ordered 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.


text:
    BICKERSTAFF v. STATE.
    No. 20887.
    Court of Criminal Appeals of Texas.
    March 6, 1940.
    Rehearing Granted 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 on the 8th day of June, 1939, in the County Court of .Cherokee County upon á charge of violating the local option laws, Vernon's Ann.P.C. 666 — 1- et seq. The prosecution was by complaint and information, and the trial was by a jury which returned its verdict finding the appellant guilty and assessing a fine of $500.

Leon Halbert, a deputy sheriff, testified that he knéw the appellant and that he operated the place known as Paradise Inn, which'included a dance hall, sleeping quarters, and tourist quarters; that he, in company with the sheriff and another, armed with a search warrant, went to the place mentioned, and upon searching the premises, found sixteen pints of whisky concealed in the ceiling above the light fixtures in the sleeping quarters of the defendant and his wife. It was stated that -two employees also had sleeping quarters at the Paradise Inn, but it is not stated just how close they were to this room or that they had access to it. A representative of the Liquor Control Board testified as a chemist that he examined the contents of the bottles; that it was whisky or distilled' spirits with an alcoholic content of more than forty per cent by volume and that it was intoxicating liquor.

J. H. Parrish testified for the appellant that he was present on the night the place was visited by the officers; that he saw about thirty or forty persons there. Two persons besides the appellant worked at the Paradise Inn, one of them being his sister-in-law. He did not see any pint bottles; that all he saw were half pints which, the officers had in a bushel basket. He did not know which room was occupied by the appellant at this time..

Another representative of the Liquor Control Board stated that he was able to take the affidavit for the search warrant and locate the house that was searched and in which the appellant lived.

Bill of Exception No: 1 contains a motion to quash the complaint and information in the case on several counts, neither of which we consider tenable. Section 9 thereof sets out that the complaint and information did not allege any publication of the order of the commissioners' court as required by law. As we read it, such allegation is made. The form of the complaint and information in this case have been so frequently approved by the court that we consider further discussion of them unnecessary.

Bill of Exception No. 2 bases error on the fact that the “complaint” in the case was not read to the jury. The prosecution is based upon information, which the statute requires to be read to the jury. Article 642, C. C. P. We know of no requirement that the complaint itself be read to the jury.

Bills of Exception Nos. 3, 4 and 6 pertain to the record as to the Local Option Law in Cherokee County. This has been thoroughly considered in another case of this date, and the court concluded that there is no merit in the bills.

Bill of Exception No. 7 complains of the form of the affidavit for the search warrant in the case with the contention that it is insufficient in that it does not properly describe the premises to be searched. The facts stated in this bill are not borne out by the record as to the description of the property. The affidavit states that the property is situated near Highway No. 40 north of the town of Rusk, and according to the evidence in the case, this seems to be correct. The further complaint is made that the affidavit is insufficient in that it does not give the source of the information upon which the affidavit was made; that it alleges only a suspicion or a belief, and is too indefinite and uncertain upon which to authorize the issuance of the search warrant. This bill presents the most difficult question on the appeal. The affidavit alleges the place to be a private dwelling in Cherokee County, described as a dance hall, with a drink stand and eating place combined, etc., and being commonly known as “Paradise Inn”, and “being the premises of Lee Bickerstaff, as a place where alcoholic beverages are unlawfully possessed, sold, manufactured, kept and stored in violation of the provisions of the Texas Liquor Control Act [Vernon’s Ann.P.C. art. 666—1 et seq.]. Further it says: “We have recently 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.”

It will be noted that the first assertion made is direct and positive that the house is a place where alcoholic beverages are unla,wfully possessed, sold, manufactured, kept, and stored'in violation of the provisions of the Texas Liquor Control Act. The affidavit concludes with the statement that “we have recently been informed by credible persons that intoxicating liquors are kept; possessed, and stored in and upon said premises.”

Appellant has filed a very able brief on this question exhaustively treating the subject. With the abstract propositions of law asserted we are in full accord. However, the application to the facts of the instant case appear to us to be in error.

The affidavit for a'search warrant is the basis for its issuance by the magistrate. If it alleges sufficient facts to convince the magistrate that the party applying for the' search warrant is entitled to it, it is his duty to issue the warrant. He is the judge of the sufficiency of the facts alleged. Whether or not there are any facts upon which he may reach this conclusion is a question of law reviewable on this appeal. The subject has been many times considered 'by this court — so many times that an effort to review all of the decisions on the subject would hardly be justifiable; nor do we deem it essential to a proper determination of the question raised.

Appellant seems to have the view that the decisions of this court hold that the maker of the affidavit must justify the statements which he makes that the evidence shows the existence.of the article to be obtained by the search by giving the source of his information.' The courts have not gone that far. This court has said that the affidavit must allege more than mere hearsay, and the cases treated in-the appellant’s brief, all of which we have considered, reach that conclusion. It has been said that the affidavit must state the existence of a fact upon good authority and this, we think, the affidavit does. It has frequently been held, however, that it is not essential to present the evidence which the affiant has, warranting him in reaching the conclusion asserted. A careful consideration of all' the authorities cited by the appellant fail to reveal a contrary conclusion.

In Simmons v. State, 110 Tex.Cr.R. 4, 7 S.W.2d 78, 79, it was said: “The affidavit for the search warrant was made on information and belief, without stating any fact, circumstance, or detailed information from which it could be determined that probable cause existed for the issuance of the warrant under which the search was made.”

It was held that this was insufficient. The party, making the affidavit gave no claim to the information himself. He made no direct statement but based everything; on “information and belief.”

To the same effect is Johnson v. State, 110 Tex.Cr.R. 403, 10 S.W.2d 549.

It will be nofed that in each of the foregoing cases the entire allegation was on information and belief.

Writing on the motion for rehearing, Judge Morrow, in Hartless v. State, 121 Tex.Cr.R. 181, 50 S.W.2d 1097, laid down the doctrine that it is sufficient that a search warrant be issued upon an affidavit showing that the affiants base their affidavit upon information obtained from credible persons of specific things set out in the affidavit; that it has not been held in this state that the names' of the persons from which the affiants obtained their information must be set out in the affidavit.

Schwartz v. State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, sustains an affidavit made by two parties who testified to the existence of specific facts upon the information of other parties whom they knew and believed.

From the opinion of Judge Morrow, in Montgomery v. State, 115 Tex.Cr.R. 469, 31 S.W.2d 440, 441, we quote the following: “The affidavit states in direct terms that Willie Montgomery was the owner and in possession of intoxicating liquor, and concludes with the statement that ‘affiants have been informed that said defendant has such intoxicating liquor in his - car.’ The ruling of the court asserting the sufficiency of the affidavit is not out of harmony with the announcement of this court in Rozner’s Case [Rozner v. State], 109 Tex.Cr.R. 127, 3 S.W. (2d) 441. See, also Villareal v. State [113 Tex.Cr.R. 442], 21 S.W. (2d) 739; Harris v. State, 112 Tex.Cr.R. 219, 15 S.W. (2d) 1048. The affidavit, however, is apparently in accord with the principle applied and the announcements made in the cases of Ware v. State, 110 Tex.Cr.R. 90, 7 S.W. (2d) 551”, etc.

In Ruhmann v. State, 113 Tex.Cr.R. 527, 22 S.W.2d 1069, 1070, complaint was made that the affidavit was shown to be predicated solely on information and belief, the affiants stating that the place was visited at all hours 'by disorderly and boisterous persons, and by persons who are shortly afterwards apparently under the influence of intoxicating liquor. Judge Hawkins said:

“If we understand appellant’s contention, it is that such averment states no fact, but gives only information which has reached the affiants, without naming the informant, and is only hearsay. Appellant seems to assume that ‘probable cause’ for the issuance of a search warrant cannot arise fro>m hearsay. We think this is a mistaken view. The definition of probable cause, as found in Landa v. Obert, 45 Tex. 539, which is approved in Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095, and is in substance the same as other definitions sanctioned by the courts and text-writers, reads as follows: ‘A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’
“This definition on its face seems to imply that the information upon which the belief is founded may be in the nature of hearsay as that term is ordinarily applied. The law does not demand that affiants who apply for a -search warrant are in possession of sufficient testimony touching a violation of the law as would prove the guilt of accused; nor does it demand that affiants’ statements be such as would be receivable in court upon the trial of one accused of crime. If these things were necessary, there would be little need in any case to resort to a search warrant. The purpose of an affidavit for search warrant is to exhibit to the magistrate facts or information from which he is to determine whether probable cause exists upon which a warrant may issue. If affiants only state that they believe and have reason to believe that certain facts exist which would authorize the warrant to issue, affiants are substituting their judgment for that of the magistrate upon the issue of probable cause; this cannot be. But, when affiants state as a fact in the affidavit that certain information has come to them, as in the present case, then it is for the magistrate to say whether such information, if true, furnishes probable cause to issue the warrant. When affiants swear that certain information has reached them, the magistrate may assume that affiants are making a true statement regarding the matter, whether or not they disclose the source of their information. The point here made has been decided against appellant in Rozner v. State, 109 Tex.Cr.R. 127, 3 S.W (2d) 441. See, also, Ware v. State, 110 Tex.Cr.R. [90] 95, 7 S.W.(2d) 551. The general principle is discussed at some length and rather interestingly in the case of Gallaway v. Burr et al., 32 Mich. 332.”

From the foregoing authorities and upon the statements quoted in the affidavit, it is considered that it is sufficient upon which a magistrate may issue a search warrant. Bill of Exception No. 7 is accordingly overruled.

Bill of Exception No. 8 complains of the failure of the court to instruct a verdict in favor of the defendant. This, we think, was not justified and the same is overruled.

Bill of Exception No. 9 complains of the failure of the court to charge on circumstantial evidence. The whisky found in this case was hidden by a device in a room which was occupied by the appellant. Inasmuch as the evidence shows that he was in charge of this room at the time and place as his private residence and there is no evidence to indicate that it was occupied by any other persons, we do not consider that a charge on circumstantial evidence was proper.

Bill of Exception No. 10 complains of the failure of the court to define the word “possess” as used in the charge. A special requested charge was presented by which counsel asked the court to define the word “possess” as meaning “actual control, care and management”. The court refused this request and,' we think, properly so. The word, as used in the statute, is used in the ordinary and accepted sense, and there is no indication that it was used in a technical sense, either in the statute or in the court’s charge. It is a word of such common usage and so generally understood by every one that any juror capable of performing service as such will understand it as certainly and definitely as he could any words which may be used to define it. “Actual control, care and management” could do nothing in simplification of the word, and certainly any one who knows what either of the three words suggested means would also know the meaning of the word “possess”. Definitions are given for the purpose of simplifying and making more clear the meaning of words and expressions in the sense used. This is particularly advisable where words are used in a technical sense, and only necessary for words used in a non-technical sense when such words are not generally used and understood by the persons for whom the definition should be given.

In Thomas v. State, 89 Tex.Cr.R. 609, 232 S.W. 826, the court used the definition substantially as requested in this case,, and the attorney there failed to understand the meaning of the definition. The matter was brought before this court under the claim that the court thereby told the jury that it means to “own” and “to be entitled to”. Apparently, the definition did not help the attorney for the defendant in that case, and there is nothing in the opinion cited which would indicate the necessity for the giving of the charge.

Wilkes v. State, 105 Tex.Cr.R. 430, 289 S.W. 44, holds the definition requested to be harmless and sufficient without giving the charge requested. There is nothing here to indicate the necessity of the charge.

In Seale v. State, 118 Tex.Cr.R. 324, 39 S.W.2d 58, the defendant presented evidence, as an affirmative defense, to show that he did not have possession of the premises where the liquor was found. The court there gave a definition in substantially the same terms as that requested in the instant case for the purpose of broadening the meaning of the word “possession” so as to comprehend the facts of the case. This was held to be proper, but it was called for by reason of the affirmative defense. Under such circumstances as that detailed and under others which might be conceived, it would be proper to define the meaning to prevent any distortion of the word, but unless such is called for, it may be said to be unnecessary.

Bill of Exception No. 11 presents nothing for consideration, it not being in proper form to do so.

Bill of Exception No. 12 complains of the following argument of the county attorney: “Prima facie evidence is conclusive evidence in this case because it is not rebutted by any other testimony in this case.”

The subject under consideration is liquor. It is proved to have a high alcoholic content. The objection presents that this argument of counsel is “inflammable”. The court had given a proper instruction on the subject, and the attorney was presenting the argument on evidence introduced and made the comment in the language complained of. Appellant says that he was discussing- the law and modifying the court’s charge. The finding of the liquor in the possession of the appellant was prima facie evidence of the purpose for which he had it. By that it is meant under the statute that when one has more than a quart of whisky, it is prima facie evidence that it was possessed for sale. Even if a smaller amount is .found, additional evidence might be given in order to prove the purpose of its possession. On the other» hand, the presence of the liquor there might be explained by the appellant’s own testimony or in any other way so as to overcome the presumption which the statute says makes it prima facie evidence. Appellant did introduce one witness apparently for that purpose. He said that appellant had occupied another room at one time but admitted he did not know which room he was occupying as his own at the time .of the search. The purpose of this testimony was evidently to overcome the prima facie case,- but his admission that he did not know which room the appellant was presently occupying justified the county attorney in saying that it was no testimony at all. The presence on this occasion, in and about the premises, of so many people could have been offered for no purpose other than to overcome this prima facie evidence, but that fell short of a showing that the patrons entered the private sleeping apartment of the appellant, and the county attorney might have been considering this fact, thereby presenting that it was no testimony at all. It was also shown that two girls lived on the premises, and this could have had no purpose other than to overcome the prima facie case. Neither their testimony nor that of any other person was offered to show that they, and not the appellant, occupied this particular room as testified to by the officers. Thus, there are three sources from which the evidence might have come other than from the mouth of the appellant. Thus reasoned, the application of the rule is clear. It will be necessary for the bill to exclude the possibility of some one else giving this particular testimony before it can be construed as an allusion to his failure to testify. Had the argument made any reference to what was in the appellant’s mind, it would be different, but it appears to us to be merely an argument on the evidence as it existed and as it appears in the record rather than as an allusion to what might have been placed in the record by the appellant. It was not a criticism of what appellant failed to. present but a discussion of what he did present. Consequently, the rule does not apply, and there is no merit in the bill.

Having considered fully the record in the case with all errors assigned, and it appearing that they were not harmful, the case is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant has filed a very able motion for rehearing in which he contends that we erred in our original opinion in holding that the State’s case did not rest on circumstantial evidence and therefore the trial court did not err in declining to instruct the jury on the law of circumstantial evidence or to submit appellant’s special requested instruction thereon. After a careful review of the testimony, we think appellant’s contention is well founded. The testimony shows that the appellant, Lee Bickerstaff, at the time in question, operated a place known as Paradise Inn, located in Cherokee County. The Inn consisted of a dance hall, tourist and sleeping quarters, etc. On the 7th day of January, 1939, the Sheriff of Cherokee County, accompanied by Leon Halbert, one of his deputies, and Burwell Avera, went to the Inn, armed with a search warrant, to search the premises for intoxicating liquor. The search revealed sixteen pints of whisky concealed in the ceiling above a light fixture. The witness thought this was the sleeping quarters of appellant. Appellant had two employees who also had sleeping quarters at the Inn. At the time of the search, there were approximately thirty or forty people at the Inn. The record is silent as to how long appellant had operated the Inn and exercised control thereof. No witness testified definitely that the room, in the ceiling of which the whisky was found, was occupied by appellant nor that appellant knew the whisky was in there, or that he ever sold any at the Inn. Consequently, the conclusion that appellant secreted the whisky in the ceiling and possessed it is deducible from the circumstances stated. There is no direct and positive testimony that appellant occupied the room in the ceiling. of which the whisky was found and that no other persons had access thereto. We think that the .facts of this case are somewhat like the facts in the case of

Puga v. State, 112 Tex.Cr.R. 431, 17 S.W.2d 55. The rule announced by this court in that case seems applicable here. See, also, Berry v. State, 104 Tex.Cr.R. 114, 282 S.W. 594. This court in those cases held that appellant was entitled to a charge on the law of circumstantial evidence and we think that he was entitled to such an instruction in this case.

We are also of the opinion that the court, under the facts of this case, should have given appellant’s special requested instruction defining the word “possession”. See Andrews v. State, 106 Tex.Cr.R. 357, 292 S.W. 880.

The motion for a rehearing is granted, the judgment of affirmance is set aside, arid the case is reversed and 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: KRUEGER, Judge. GRAVES, Judge.

text:
    GUNTER v. STATE.
    No. 20858.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied April 24, 1940.

      H. C. Hooser, of Big Spring, and M. J. Howze, of Stanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant challenges the sufficiency of the evidence to sustain his conviction. The state’s testimony, briefly stated, shows that on the 13th day of May, 1939, the appellant and two of his sons came to the town of Midland. S. L. Box, the injured party, was also in town. At a time when the injured party was on the street in front of a barber shop talking to R. S. Culp and Charles Hedges, appellant’s son, Herman, walked-up to Mr. Box, asked him what he was doing in town, struck him and knocked him down. About this time appellant appeared on the scene and shot Mr. Box twice with a pistol. Appellant did not testify.

He offered in evidence a judgment of the County Court of Grayson County rendered on the 26th day of February, 1926, adjudging him to be a lunatic. His son, W. S. Gunter, testified, with reference to .appellant’s mental condition, that his father was excited after the difficulty. That his father was nervous, but outside of that he was as calm as anyone. He stated that his father had been in the insane asylum twice; that for the last few years he had been well physically, except that he worried about his son who had been killed. That he was perfectly normal at all times, and was in his right mind except that he grieved about the loss of his boy. That he was like any other man would be who had lost a son.

His daughter-in-law testified among other things as follows: “I have been in the family almost four years. * * * Herman and I have been closely associated with his family. * * * I have talked to my father-in-law on many occasions. He has been in ill health for some time, having trouble with his back * * *. From my conversations with my father-in-law and from observing him and his conduct I believe he knows right from wrong and I tell the jury that he knows and did at the time know the difference between what is right and what is wrong. * * * ”

It is true that when a defendant upon trial for a criminal offense introduces a judgment by a court of competent jurisdiction adjudging him insane, the presumption obtains that his insanity continues and the burden rests upon the state to prove his sanity beyond a reasonable doubt at the time of the commission of the offense. See Glover v. State, 125 Tex.Cr.R. 605, 69 S.W.2d 136, Davidson v. State, 109 Tex.Cr.R. 251, 4 S.W.2d 74. The court so charged the jury and no exception of any kind seems to have been addressed to the charge. Under the facts of this case, we think the testimony adduced as to his sanity was sufficient to overcome the burden cast upon the state by the introduction of the judgment. See Hunt v. State, 33 Tex.Cr.R. 252, 26 S.W. 206.

We find in the record what are denominated as appellant’s bills of exceptions. These bills are not included in or made a part of the transcript/ They do not appear to have been certified by the clerk of the trial court as being authentic; consequently, they cannot be considered by us. See Art. 760, C.C.P., Vernon’s Ann. C.C.P. art. 760,; Magee v. State, 136 Tex.Cr.R. 183, 184, 186, 123 S.W.2d 906. Appellant also complains that the trial court erred in overruling his second application for a continuance. He does not appear to have excepted to the action of the trial court , in overruling said motion. Consequently, the matter is not properly before us for review. See Anderson v. State,. 101 Tex.Cr.R. 645, 276 S.W. 906; 4 Tex.Juris. p. 93, § 60; Branch’s Ann.P.C. Sec. 304, p. 183, and authorities there collated. Appellant also insists that the trial court erred in overruling his motion to quash the jury panel. It does not appear that an exception was taken at the time to the action of the court in overruling said motion. Moreover, we notice, that appellant set up in said motion that after the jurors who tried him had been sworn and the remaining ones on the panel dismissed, appellant for the first 'time raised a complaint that one of the jurors was a personal enemy of his. Appellant’s attorneys seem to have examined all of the prospective jurors on their voir dire, and no objection whatever was addressed to the presence of the objectionable juror. Such matter presents no error. See Baker v. State, 3 Tex.App. 525, 532, Black v. State, 46 Tex.Cr.R. 590, 81 S.W. 302, 303, where it is stated: “It is also well settled that, where a juror has been selected, a challenge cannot be interposed for a cause known to the party seeking to interpose the challenge at the time of impaneling the juror.”

See, also, 26 Tex.Juris., p. 634-637.

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

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 has had the record perfected relative to his bills of exception, and it is shown that the clerk through inadvertence failed to append thereto the approval of the trial judge, although same had been seasonably approved. We therefore consider these bills as now presented.

Bill No. 1 complains because, in connection with a judgment of conviction of the appellant for lunacy in 1926 in Gray-son County, appellant was not permitted to introduce a clause appearing in the clerk’s certificate as follows : “And that there does not appear of record any proceedings to set aside the judgment herein described.” Such statement on its face shows that it was not a part of the judgment proper, but was an ex parte statement of the clerk. It was therefore hearsay. It is also observed that there was nothing to show that the judgment had been set aside, and the trial court in his charge treated such judgment as though it was still in force and effect. In his charge he instructed the jury relative to such judgment of lunacy, and required of them that they must find appellant sane beyond a reasonable doubt before they could convict him of any offense. We see no error in this bill.

In bill of exceptions No. 2 appellant complains because of the trial court’s failure to continue the case because of the absence of a witness by whom appellant could have proven why he had a pistol with him at the time of the shooting, the reason being that he was on a trade with a man by, the name of Butler. Such testimony was not of such a material nature as to require- a continuance, because the trial court placed no limitation upon appellant’s right to have a pistol on his person. This also seems to be a subsequent application, and it further appears that such testimony was bound to have been known by appellant prior to the time of the trial, and could not have been a recently discovered witness upon appellant’s part. It also appears that a conversation was had between the attorneys on each side relative to an admission as to the absent witness’ testimony, and as to its truth, but the appellant’s attorneys never took advantage of such offer.

Bills of 'exceptions Nos. 3 and 4 relate to an effort to discharge a juror who had been previously accepted by appellant, after the jury had been selected, impaneled and sworn, and the remainder of the jury panel discharged. Appellant alleged that such juror was an enemy of his, and was prejudiced against him; that appellant was not aware of the fact that such juror had been selected until the jury had been selected, impaneled and sworn.

The court overruled a motion to quash the jury panel in the following order: “The Court: The defendant W. S. Gun-ter’s motion to quash the jury panel is. overruled, defendant’s motion being based, upon the fact that C. R. Hines, a juror selected in this case was (not) agreeable to> him because of alleged personal enmity between said defendant and said juror.. Said motion is overruled because of the-fact that defendant, together with the other defendants in this case, through their attorneys, were presented with a list of the-jurors and before either the state or the defendant questioned the jurors upon their voir dire; and that said jurors were questioned upon their voir dire by the state’s, attorneys in the presence of all the defendants and in the presence of Mr. Hooser and: Mr. Howze, attorneys for the said defendants, and the jurors were then questioned’ by Mr. Hooser in the presence of all of the said defendants and the State’s attorneys upon their voir dire, and that after-said questioning upon their voir dire said¡ attorneys were given fifteen minutes in-which to exercise their challenges to said list, and that instead of fifteen minutes being taken, thirty minutes were taken for the exercising of their challenges, and that said defendants .and their attorneys had ample time and opportunity to make any cuts that they desired to make, and did make cuts of the jury list, that after said cuts were made by defendants and their attorneys, the jury was selected and sworn and that no objection was made to said juror C. R. Hines until after the jury was sworn and after the other jurors on the panel had been dismissed, and, therefore, said motion is overruled.”

We do not think any error is evidenced by said bills.

We do not think any error is shown in bill No. 5. It is a mere statement to the effect that the State had failed in its proof to overcome the judgment of insanity against appellant. We think this matter was properly disposed of in the original opinion.

The motion is overruled.


author: BEAUCHAMP, Judge.

text:
    SIMONS v. STATE.
    No. 20610.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied May 1, 1940.

    ’ Carney & Carney and Tom J. Mays, all of Atlanta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The offense is murder; penalty assessed at confinement in the penitentiary for four years.

The appellant was convicted of the murder of Roy Young on August 24, 1938. On the occasion of the homicide, the mother of the appellant, an aged colored woman, was being given a dining on her birthday which was largely attended by guests who testified, some for the State and some for the appellant, that they had been invited and urged to attend the occasion and were friends of the family. The deceased had a great many relatives there who uniformly testified for the State on the trial of the case, and there is no difference of opinion among them as to what happened. From this testimony the jury might have found appellant guilty of murder with malice. However, there was a different school of thought which appeared in behalf of the appellant and his witnesses were unanimous in testifying as to the occurrences preceding and at the time of the encounter which resulted in the death of Roy Young. There is no difficulty in understanding the State’s theory of the case, and likewise, the appellant’s theory is stated and repeated with such emphasis as to make it perfectly clear that he relied upon self-defense for an acquittal. The issues of fact are clearly stated. Appellant said that it was an accident ; that he did not intend to take the life of his antagonist. The jury took the view of that school of witnesses testifying for the State and found the appellant guilty of murder. They likewise declined his plea for a suspended sentence and decreed that he should serve the time in the penitentiary. No discussion of the testimony at this time is necessary to an understanding of the issues before the court.

Eighteen bills of exception bring the complaints of the appellant before this court for consideration. They have been skillfully and carefully prepared and ably argued. We have considered each of them and believe that the main charge, together with the special requested charges which the court gave, properly submitted the appellant’s case to the jury and, consequently, we overrule all of those bills of exception which relate to the court’s charge.

We agree with the contention of the appellant that he was entitled to have his defense affirmatively submitted to the consideration of the jury, but we think that this was done by the court in his main charge and in the special requested charges which were given at his request.

Appellant presented his request for a suspended sentence in due form and at the proper time, and placed before the jury witnesses who testified as to his good reputation. Appellant himself testified that he had never been convicted of a felony in this or in any other state; that he was born and reared and had always lived in the town of Bloomburg in Cass County, together with the other essential things upon which the jury might have granted his request for a suspended sentence.

The court permitted the character witnesses for the appellant to be examined by the District Attorney as to specific acts of conduct with the evident purpose and intention of refuting the proof of appellant’s good reputation. These matters are not brought forward in such a way that we can consider them, but by Bill of Exception No. 18, the appellant properly complains of the following questions being asked and the appellant required to answer them:

“Q. Is it not a fact that you drew an axe on a person by the name of Mother-shed?
“Q. Is it not a fact that you stole some syrup from a white man?
“Q. Is it not a fact that you paid a fine in Bloomburg for some trouble with your sister ?
“Q. Is it not a fact that you stole some clothes from a white person in Bloom-burg?”

We think the questions asked the character witnesses were more damaging than the ones complained of in the bill as having been asked the appellant. He had an opportunity to deny before the jury the truthfulness of the charges made in the questions while some of the witnesses were not in a position to do that. But no bills bring such errors to us for consideration. It is our conclusion that the asking of these questions constituted error requiring that the cause be reversed.

Upon good reasoning it has been held that when a defendant places in issue his reputation it does not bring before the jury any other matter for consideration, and that the State can present only those things which deny the reputation. The fact of some particular charge, or conviction of a misdemeanor, will not be proper for the purpose of refuting testimony as to reputation. The appellant is not required to bring forward every act and conduct of his life to be tried before the jury. It is sufficient, and he has met the requirements of the law, if he presents his reputation. This cannot be refuted ,by a charge as to any one or more specific things. The Legislature has evidently taken care of that when it requires him to prove that he has not been convicted of a felony in this or in any other state. If it had intended that he should prove that he had never been charged with, and was not in fact guilty of, any unlawful act, misdemeanor or felony, the Legislature would have said so. That has been the construction given by this, court consistently and to it we adhere. See Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965; Brown v. State, 129 Tex.Cr.R. 394, 87 S.W.2d 720; Edwards v. State, 127 Tex.Cr.R. 386, 77 S.W.2d 241; Shipley v. State, 131 Tex.Cr.R. 527, 100 S.W.2d 704.

For the error of the court in permitting the questions quoted tó be asked, the cause is reversed and remanded for a new trial.


author: LESLIE, Chief Justice.

text:
    DILBECK v. NORWOOD et ux.
    No. 1992.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1940.
    W. A. Hawkins, of Fort Worth, for plaintiff in error.
    Gib Callaway, of Brownwood, for defendants in error.
   LESLIE, Chief Justice.

J. H. Dilbeck filed suit in trespass to try title and for damages against T. A. Nor-wood and wife, Z. A. Norwood, to recover the title and possession of a part of Block .No. 113, Ba.rnes Addition to the town of Comanche. Ouster was alleged as of January 1, 1933. October 11, 1933, the defendants, T. A. Norwood and wife, filed their original answer consisting of a general demurrer, plea of not guilty, and also filed in connection therewith a cross-action in said cause against the plaintiff for title and possession of the same land. The defendants .further alleged they lived on the land in question; that on or about• January 11, 1932, they deeded same to the plaintiff, and that the deed had failed for want of consideration and because of want of sufficien- . cy of, notary’s acknowledgment..

November 21, 1938, a-judgment was rendered in said cause divesting plaintiff of title to said land and vesting title- thereto in defendants. The plaintiff brings this judgment by writ of error before this court for review.

Parties will be referred to as in the trial court.

In substance, the plaintiff Dilbeck contends that the court was without jurisdiction to render the judgment. The defendants agree that the. statement of the cause of action by the plaintiff is in substance correct, but in their brief they add the following :

“In addition to the said statement, we make the further statement that, as shozvn by the docket of the 'district court, after the plaintiff’s original petition was filed on August 18, 1933, and defendants’ original answer and cross-action asking for affirmative relief was -filed on October 11, 1933, about one year thereafter and on October 16, 1934, and after the defendants’ answer and cross-action had been on file for more than a year, the court specially set the case for trial on October 22, 1934. In this- connection, it may be stated that October 16, 1934, the date of said notation on the trial court’s docket, was appearance day in said court, that being a matter of law, we believe, of which the court will take judicial notice.
“Evidently the case was not tried on October 22, 1934, the date for which it was specially set, because the following year, June 25, 1935, we find from the notation on the trial docket that the cause was ‘continued by agreement.’ About two years later on July 8, 1937, we again find a notation on the court’s docket ‘continued by agreement.’
“The attorney who filed the suit originally; and being the only attorney representing the plaintiff in the court below, whoever appeared in the cause at any time, was Tom F. Reece, who resided at Comanche, Texas, and the fact of his residence and being a member of said Bar was also, of course, known to the judge of the trial court, and a matter of which the court could take judicial knowledge.” (Italics ours.)

The judgment of the trial court as entered makes the following recitations : “On this the 18th day of November, 1938, came on to be heard the above styled and numbered cause and the defendants T. A. Nor-wood and wife Z. A. Norwood, appeared in person and by their attorney and announced ready for trial, on their cross-action, but the plaintiff J. H. Dilbeck, though having duly filed his suit herein and the same having been continued for many terms of court, came not and made no appearance herein and the defendants insisting upon trial upon their said cross-action, and no jury having been demanded, the matters of law as well as of fact were submitted to the court, and the court after hearing the pleadings read, the evidence and the argument of counsel is of the opinion that the material allegations of the defendants’ answer are true.” (Italics ours)

The defendants’ contention in support of the judgment is predicated upon the proposition that the plaintiff, as to the cross-action against him, had entered an appearance in the court, thereby conferring jurisdiction upon the court to render a judgment. To establish such contention the defendants rely upon docket entries or notations to evidence such appearance. By motion for certiorari these docket entries were sought to be brought to this court as part of the transcript. This court, in passing upon the motion which sought to supplement the transcript with such docket entries, overruled the same. Under this ruling they are not before this court for any purpose, nor do we think they would be of any intrinsic value had the transcript been so supplemented.

In different opinions this court has had occasion to pass upon the effect of such docket notations and also to determine whether or not they have any place in the regular transcript upon appeal. We held in Smith v. Watson, 44 S.W.2d 815, that the trial judge’s notations on the appearance docket constituted no part of the transcript on appeal and that judgments and orders pertaining thereto must be in-coqjorated in the trial court’s minutes and as such brought up in the transcript to be reviewable or furnish the basis of review. In these conclusions we were hut following another opinion of this court by Chief Justice Hickman in Burleson v. Moffett, 3 S. W.2d 544. We there held: “The only question before us for decision is whether the above notation had the effect of setting aside the judgment of February 21st, sustaining the pleas of privilege. Our conclusion is that it did not. The entries made by a trial judge on his docket form no part of the record. They have no proper place in the transcript, and cannot be considered by us.” Citing many authorities from the Supreme Court and other appellate courts.

With this record or transcript in the status indicated, we now test the validity of the judgment against Dilbeck in the light of the contention that he did not appear in response to the cross-action.

Article 2278, R.S.1925, provides that:

“When an appeal or writ of error has been perfected, the clerk of the court shall, upon the application of either party, make out, and deliver to him a transcript of the record of the cause, which shall, except in the cases hereinafter provided, contain a full and correct copy of all the proceedings had in the cause. If the pleadings or the judgment show an appearance of the defendant, in person or by attorney, the citation and returns shall not be copied into the transcript.”

The transcript of the record in the instant case contains no citation based on the cross-actión. The record contains no agreement by the parties to omit citation and its return from the transcript. There is no pleading or answer by the plaintiff Dilbeck (defendant in cross-action) showing any appearance in response thereto. The transcript shows no waiver of the issuance of citation.

When we refer to the judgment (excerpts above set out) we find the court reciting “that the -plaintiff J. H. Dilbeck, though having duly filed his suit herein and the same having been continued for many terms of court, came not and made no appearance * * * ” — whereupon trial was had upon “insistence” of Norwoods, etc. Obviously the case before us is not one where either “the pleadings or judgment show an appearance of the defendant (in cross-action) in person or by attorney.” On that point the judgment itself is clear and to the contrary.

Under the facts and circumstances presented by this record we are of the opinion that it fails affirmatively to reflect any jurisdiction of the person of J. H. Dilbeck warranting the court in rendering a judgment by default against him on the cross-action. That being the case, it is mandatory upon this court to reverse the judgment of the trial court and remand the cause for a new trial. This we do upon the authority of Early v. Cornelius, 120 Tex. 335, 39 S.W.2d 6, writ refused, and the many authorities therein cited. Special attention is directed to the following authorities : Harris v. Schlinke, 95 Tex. 88, 65 S.W. 172; McGowan v. Lowry, Tex.Civ.App., 230 S.W. 465;. Peterson & Tvrdik v. Mueller-Huber Grain Co., Tex.Civ.App., 58 S.W.2d 890; Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, writ refused.

The defendants Norwoods (plaintiffs in cross-action) rely upon the opinion in Mc-Elyea v. Parker, 125 Tex. 225, 81 S.W.2d 649, to sustain the judgment under attack. That case is distinguishable from this one and, therefore, not controlling. In that case the plaintiff, after the filing of the answer and cross-action against him, consented in open court to one continuance, and thereafter made an application himself for another continuance, all of which was held to constitute an appearance as to the cross-action, giving the court jurisdiction to render a judgment therein. The minutes of the court disclose such entry of appearance as to the cross-action and no reliance was made merely upon docket notations. We so interpret the record.

For the reasons assigned, the judgment of the trial court is reversed and the cause remanded.


author: GRAVES, Justice.

text:
    McALEXANDER et al. v. LUDTKE.
    No. 10954.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1940.
    Rehearing Denied April 18, 1940.
    William Grimes, of Houston, for appellants.

      Morris E. Ludtlce and W. M. Johnson, both of Houston, for appellee.
   GRAVES, Justice.

This amended general statement, thought to be correct as such, has been taken from the appellee’s brief:

“The suit was brought by appellee, plaintiff below, to have two instruments, in the form of deeds, reformed to be mortgages, as claimed by him to have been intended by the parties. Appellee alleged that said instruments were given as mortgages to secure a certain indebtedness, which he owed to defendants, and pleaded a tender to defendants of such amount which he owed to them.
“Appellant filed an answer, alleging that such instruments were absolute conveyances, and then filed a cross-action setting up that, in ' the alternative, if the instruments be held' .to be mortgages, to secure the indebtedness owing by plaintiff to defendant, Mary E. McAlexander, that she have judgmént for her debt, together with attorney’s fees, and an order of the court foreclosing her liens on the property described in the 'instruments.
“The case was submitted to the jury on five special issues, all of which were found in favor of plaintiff. Immediately after the verdict of the jury and before the judgr ment of the court was entered, the court permitted appellee to file a trial-amendment, praying for. the further relief of having the instruments, in the form of deeds, cancelled, annulled, set aside as deeds, and held to be of no further force and effect, and that all clouds cast upon plaintiff’s title to - the property by reason of such two instruments having been placed of record be cast and removed. The court having computed the proper interest on the two notes, and a paving-lien judgment owing by appellee to appellant, and having credited such total indebtedness with the several amounts which it found the 'testimony showed was paid to and received by appellant, entered judgment for plaintiff, and found that appellant was entitled to $1748.44 out of ’the money on deposit with the district clerk, J. W. Mills, and that appellee was entitled to the balance of the money on deposit, to-wit, $502.44, together with the title and possession of the unsold land, and that the instruments involved be cancelled, annulled, set aside, and held for naught.”

From such action taken below, this appeal regularly proceeds.

Mrs. Mary E. McAlexander is the sole appellant.in interest, her husband having joined her pro forma only.

The described judgment was entered not alone upon the jury’s verdict, but as well upon independent findings of the court itself from both the pleadings and evidence, the latter being therein recited to hav.e been undisputed in support of these added findings, which were fully detailed in the decree.

It is obvious that the controlling issue in the whole controversy was one of fact— that is, whether or not the two deeds so sued upon had, in their transactions concerning them, been intended by the parties to be mortgages securing indebtedness owing to the appellant by the appellee, although they both ran in terms in the form of absolute conveyances; this question, inclusive of all its essential elements, was appropriately submitted to and answered by the jury, as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence that when the deed in question herein dated April. 8, 1936, was delivered that it was agreed between plaintiff and F. L. McAlexander that said deed was to be held as security for the debt owing by plaintiff to Mrs. Mary E. McAlexander?”
Answer: “We do”.
“Special Issue No. 2: Do you find from a preponderance of the evidence that at the time of the delivery of the deed dated April 8, 1936, it was agreed between plaintiff and F. L. McAlexander that the deed of April 6, 1936, was to be returned to the plaintiff?”
Answer: “We do”.
“Special Issue No. 3: Do you find from a preponderance of the evidence that it was agreed between the plaintiff and F. L. McAlexander at the time of the delivery of the deed on April 8, 1936, that the plaintiff was to have an option to repurchase the property described in said deed?”
Answer: “We do”.
“Special Issue No. 4: Do you find from a preponderance of the evidence that it was agreed between plaintiff and F. L. McAlexander that the cancellation of the grocery bill and the deed dated April 8, 1936, were not given in cancellation and full satisfaction of the indebtedness owed by plaintiff to Mrs. Mary E. McAlexan-der?”
Answer: “They were not given in cancellation and full satisfaction of the indebtedness.”
“Special Issue No. S: Do you find from a preponderance of the evidence that aft-et the deed dated April 8, 1936, was executed the plaintiff .was still obligated to pay the indebtedness he owed to Mary E. McAlexander prior to April 6, 1936?”
' Answer: “He was still obligated to pay the indebtedness.”

A careful examination of the record and statement of facts shows that no successful attack has been made upon this verdict in any particular; indeed, without being called upon to detail the evidence upon which that conclusion has been arrived at, this court is clear in finding that there was full warrant in the testimony for every answer thus returned; the appellant herself did not testify upon the trial at -all, nor was there presented in her behalf any other witness than her son and active representative in all the business transacted in her behalf with the appellee, F. L. McAl-exander ; whereas, on the other side, many different witnesses, who had knowledge of the dealings between , the parties upon which they testified, detailed' — along with and in support of the appellee himself — the successive transactions leading up to and culminating in, as well as following, the two deeds that so formed the main subject matter of the litigation; appellant, therefore, in substantial effect, merely raises on this appeal a legal question upon what must be considered fully established facts.

In doing that, she contends, among other things, several of them relating to and challenging certain procedural features:

(1) That the court prejudicially erred in permitting the filing of appellee’s trial amendment, in the circumstances recited in the statement quoted supra, in that such belated filing constituted a prohibited changing of the cause of action, after the rendition of a verdict, from one to reform the deeds into one to cancel them.

This presentment is overruled without extended discussion, since, under such authorities as Bain v. Coats, Tex.Civ.App., 228 S.W. 571, it is obviously unsound, when applied to facts like those here obtaining; in addition to those found by the jury in its quoted verdict, the trial court has found, on sufficient evidence, that there was then in its registry sufficient money belonging to the appellee to pay the appellant all the debts he owed her at that time; further that, the two instruments had at all times material been agreed between the parties not to be placed upon the records, but instead to be held by the appellant as mere security for the indebtedness so due her, which arrangement had been violated by the placing of the two documents upon the county records, thereby enabling the appellant and her co-owner of the property to make actual sales of part of it upon the basis of their being in fact deeds;, hence the trial amendment under these attending facts did not change the nature of appellee’s cause of action, but in- effect merely broadened his prayer so as to cover the additional relief of having the pseudo" instruments cancelled as such deeds and the cloud cast — by their having been recorded — on the appellee’s title, removed. Such action was consequently within the sound discretion of the court, especially since no new evidence than that already fully before the court was required to support it.

. (2) That there was. a material and mutually-destructive conflict between the jury’s answers to quoted special issues Nos. 1 and 3, in that under’ the former the instrument was found -to have been given as security for a debt owing by the grantor to the grantee, whereas by the latter it was found that the grantor had been given an option to repurchase the land, ■ which was inconsistent with its being- only security for a debt.

In this, connection, appellant argues at great length that the inhering option to the appellee to repurchase the property, as a matter of law, made the transaction evidenced by the two deeds a conditional sale, and not a mortgage.

This also, it is thought, is a clear non sequitur from the facts invplved; this court finds no such conflict, but, upon the contrary, regards the answers to these two issues to be entirely consistent with each other, and that No. 3, in the setting to which it must be applied, amounts to merely supplementing the basis on which the instrument is properly characterized as a mortgage. Especially is this made clear by succeeding findings 4 and 5, to the effect that the parties- — -who were fully competent to do so — agreed at all times between themselves that the indebtedness of appellee to appellant was not being can-celled by these instruments, but that it was expressly, as such, to be continued, to persist, notwithstanding the forms of these instruments, and that the appellee was to still remain obligated to pay such full debt. '

Indeed, it seems plain that, under the facts found by the jury alone, to say nothing of the supplementary ones by the court, no other proper judgment than one declaring such instruments to be mortgages to secure the indebtedness could have been rendered; the right left in the appellee to repurchase the property did not perforce of its being recited in the instrument, the whole effect of which was á mortgage, necessarily change that instrument into a conditional sale; this for the reason that the test as to whether an instrument in the form of an absolute deed is a mortgage, or a sale, always is whether or not there is a continuing obligation on the grantor to pay the indebtedness involved; these authorities fully support the conclusion stated, as applied to what are thought to be analogous facts: Perez v. Houston & T. C. R. Co., Tex.Civ.App., 5 S.W.2d 782; Stiles v. Union, Tex.Civ.App., 1 S.W.2d 947; Chicago, R. I. & G. R. Co. v. Bernard, Tex.Civ.App., 275 S.W. 505; Southwest Bitulithic Co. v. Dickey, Tex.Civ.App., 28 S.W.2d 264; Republic Production Co. v. Collins, Tex.Civ.App., 41 S.W.2d 100; Wichita County v. Tittle, Tex.Com.App., 41 S.W.2d 11; Traders & General Ins. Co. v. Milliken, Tex.Civ.App., 110 S.W.2d 108; Texas & P. R. Co. v. Gillette, Tex.Civ.App., 100 S.W.2d 170; Herring v White, 6 Tex.Civ.App. 249, 25 S.W. 1016; Morrow v. Gorter, Tex.Civ. App., 217 S.W. 164; Holmes v. Tennant, Tex.Com.App., 231 S.W. 313.

Especially do the principles applied in these authorities seem to rule this cause, because here the money with which to pay appellee’s obligation to appellant — so obtained by artifice at least on her behalf— was actually in the registry of the court trying the case and under its control as a consequence of a jury’s determination that the parties had never at any time intended to maintain any other relation than that of mortgagor and mortgagee, as affected the property that money constituted the proceeds of a sale of by appellant alone.

(3) Through a number of propositions appellant further attacks the independent findings of the court itself, referred to supra, dealing with the monetary accounts between the parties, the alleged extension of the vendor’s lien note involved, and appellee’s declared-upon tender of all amounts he owed appellant prior to the filing of her cross-action below in this cause.

The answer to this presentment is that they dealt with mere subsidiary rather than controlling causes of action, or grounds of defense, that none of them were requested to be submitted as issues-of-fact by either party; wherefore, especially as the 'evidence upon all of them seems to have been undisputed — as the judgment itself recites — the court had the power to make them in support of the judgment it otherwise was required to render. These authorities support a holding to that effect: Wichita Falls, etc., v. Pepper, Tex.Sup., 135 S.W.2d 79; Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084; Newberry v. Johnson, Tex.Civ.App., 274 S.W. 667; Coon v. Ewing, Tex.Civ.App., 265 S.W. 481; Article 2190, Revised Civil Statutes of Texas 1925, Vernon’s Ann.Civ.St. art. 2190.

In other words, the one dominating issue in the whole cause being, as stated supra, whether the instruments forming the subject matter of the suit were mortgages or absolute conveyances, all of these added determinations by the court itself dealt with details, which at most were eviden-tiary of or subsidiary to that one determinative question; hence the court was clearly empowered — especially in the absence of 'any request for the submission of any of them to the jury — to determine them all in such manner as to support the judgment it was otherwise bound to render, there being at least sufficient evidence to support them, which fact the appellant does not question.

The state of facts is voluminous, the contest having been waged over the whole ^gamut of dealings between the parties with reference to the same lands for years, which were finally comprehended within and evidenced by the two instruments that so became the subject matter of this suit, and the jury’s arbitrament — upon sufficient evidence — settled their relationship as having been that of mortgagor and mortgagee; it therefore was competent for the trial court to mop up such incidental and subsidiary matters and details as it found— without objection from either party— flowed from such sustained relation between them.

No reversible error having been pointed out, the judgment will be affirmed. Affirmed.


author: MONTEITH, Chief Justice.

text:
    J. H. ROBINSON TRUCK LINES, Inc., v. JONES et al.
    No. 10959.
    Court of Civil Appeals of Texas. Galveston.
    March 14, 1940.
    Rehearing Denied April 11, 1940.
    Ewell H. Muse, Jr., of Austin, for appellant,
    McFarlane & Dillard, of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from an order overruling a plea of' privilege in an action brought in the district court of Harris County' by the appellees, Mamie Jones et al., against appellant, J. H. Robinson Truck Lines, Inc'., seeking the recovery of damages alleged to have been sustained as a result of the negligent operation of a truck driven by an employee of appellant which resulted in injuries to ap-pellees and damage to their automobile.

The appellant filed its plea of privilege to have said suit tried in Nueces County, the county of its residence.

In due time appellees filed their controverting affidavit, in which they embodied their original petition, and claimed venue in Harris County under Subdivision 9 of Article 1995, Revised Statutes of 1925.

Upon a hearing on the allegations of the plea of privilege and the controverting affidavit, appellant’s plea of privilege was overruled. No testimony was- introduced by appellant at said hearing.

At the request of appellant the court made and filed findings of fact and conclusions of law, to which appellant excepted. The court refused to make and file additional findings at appellant’s request, to which ruling it excepted.

The suit arose out of a collision which occurred in the City of Houston on December 6, 1937, between an automobile being driven by an employee ¡of appell-lees, in which appellees were riding, and a truck alleged to have been owned by appellant, and driven by one of its employees.

Appellees alleged that they were proceeding in a westerly direction on McGowan Avenue, which intersects Jackson Street at right angles, at the rate of speed of -approximately 20 miles, per hour when they were struck from the rear by a truck which was being driven in .a northwardly direction on Jackson Street by appellant’s agent, causing personal injuries to appellees and damages to said automobile. Appellees alleged numerous acts and omissions on the part of appellant and its driver claimed to amount to negligence of appellant and its driver proximately causing said collision.

The court found, among other facts not material to this appeal, that on the date alleged a truck having “Robinson Truck Lines” printed on it crashed into the rear end of the automobile in which appellees were riding, damaging said automobile and injuring appellees, Beatrice Jones and Willa Jones; that said automobile was travelling westward on McGowan Avenue at a time when said truck was travelling northward on Jackson Street and approaching the intersection of McGowan Avenue from the south side; that as said automobile passed the center of said intersection travelling not more than 20 miles per hour, headed westward, said truck was then approximately 40 feet south of said automobile on Jackson Street; that said truck entered said intersection and changed its course to the west behind said automobile and overtook and crashed into the left rear end thereof at a point about 5 feet west of the west side of said intersection; that the driver of said truck was driving same in excess of 20 miles per hour at the time of said collision, and that the operation of said truck at that time at .said rate of speed was negligence per se and constituted a trespass. The court further found that the driving of said truck on said occasion into the rear end of said automobile, without negligence on the part of appellees, was also in the nature of a trespass coming within exception No. '9 of Article 1995, Revised Statutes of 1925; that the damages sustained by appellees was the proximate result of negligence on the part of the agent of appellant and that no negligence was shown on the part of appellees which contributed to said collision. The court found that Beatrice Jones testified without objection by appellant, that she was present on the occasion of said collision between said automobile “and a truck operated by J. H. Robinson Truck Lines, Inc.”; that no proof was offered by appellant that said truck did not belong to it, or that it was not being operated at the time of said collision by its -agent, and that this unchallenged testimony was sufficient to raise the inference, in the absence of any rebutting proof to the contrary, that the appellant owned the truck and was operating it through its agent and servant at the time of said collision.

Appellant contends that the evidence failed to support the findings of the court: (a) That the agent of appellant was driving in excess of 20 miles per hour and that said rate of speed was the proximate cause of the collision; (b) that the agent of appellant failed to keep his truck under proper control at the time of said collision, and that said failure was negligence; (c) that said truck was owned by appellant, or that it was being operated by its agent or employee on the occasion in question. Appellant further assigns error in the action of the trial court in overruling said plea of privilege for the alleged reason that the facts shown do not constitute trespass within the meaning of Subdivision No. 9 of Article 1995, Revised Statutes of' 1925, or that there was a violation of the Penal Code of the State of Texas.

Subdivision No. 9 of Article 1995 of the Revised Statutes of 1925 provides that: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

The term “trespass”, as that term is used in the above statute relating to the venue of actions,, is intended to embrace only actions for such injuries as result from affirmative acts or from wrongful acts wilfully or negligently committed, and not those injuries which result from a mere omission to perform a duty. Brown v. Calhoun, Tex.Civ.App., 22 S.W.2d 757; Vaught v. Jones, Tex. Civ.App., 8 S.W.2d 800; Id., Tex.Com. App., 17 S.W.2d 779; Edwards v. Hawkins, Tex.Civ.App., 77 S.W.2d 1098; Murray v. Oliver et al., Tex.Civ.App., 61 S. W.2d 534; McCrary v. Coates, Tex.Civ. App., 38 S.W.2d 393; 41 Tex.Jur. 412.

The exact question involved herein was decided by the Supreme Court in the recent case of Meredith v. McClendon, 130 Tex. 527,. 111 S.W.2d, 1062, in which, in an opinion by Justice Sharp, it is held that the term “trespass”, as used in the statute permitting a suit to be brought in a county in which a trespass is committed, is intended to embrace only wrongful acts, which are wilfully or negligently committed, and that it does not refer to a mere omission to, do a duty, although the act need not necessarily be such an affirmative act as would be inherently unlawful and constitute a crime or an offense against the public.

In the instant case appellant is charged with certain affirmative acts of negligence. It is charged that it was operating a truck, which overtook and injured appellees and the automobile in which they were riding, at an unlawful and negligent rate of speed. From the facts shown the court could and did reasonably infer negligence proximately causing the injuries and damages claimed by appellees.

Under the established rule that, in an appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of appellee’s contentions, Sharp v. Mead et al., Tex.Civ.App., 127 S.W.2d 510; Douglas v. Williams, Tex.Civ.App., 83 S.W.2d 686; Pearson v. Guardian Trust Co., Tex.Civ.App., 84 S.W.2d 256, it will be presumed that the trial court made the findings of fact which he was ' authorized to make under the evidence.-

Appellant further contends that the evidence is insufficient to establish either the ownership of said truck or that it was being operated on the occasion in question by its agent or servant. This contention cannot be sustained. The rule has been definitely established in this state that, while the name printed on a truck is not conclusive evidence of its ownership, the fact that the driver thereof was the agent of the owner, or that he was acting at the time in the scope of his employment for his- principal, such facts are at least circumstances tending to prove ownership thereof, the agency of the driver and that he was acting within the scope of his employment, in the absence of contravening proof. The court based his findings as to the ownership of said truck by appellant and the fact that it was being operated at the time of said collision through its agent on the testimony of appellee, Beatrice Jones, as to such ownership and on the fact that no proof as to such facts was offered by appellant. Austin Bros. v. Sill, Tex.Civ.App., 83 S.W.2d 716; Younger Bros. v. Power, Tex.Civ.App., 92 S.W.2d 1147; Mrs. Baird’s Bakery v. Davis, Tex.Civ.App., 54 S.W.2d 1031; Freeman v. Texas Bread Co., Tex.Civ.App., 111 S.W.2d 307.

The judgment of the. trial court overruling appellant’s plea of privilege is affirmed.

Affirmed.