author: SMEDLEY, Commissioner.

text:
    NATALI et al. v. WITTHAUS et al.
    No. 1793—7329.
    Commission of Appeals of Texas, Section B.
    Jan. 31, 1940.

      Carlos B. Masterson, Rucks & Enlow, and Follett & Hill, all of Angleton, and B. C. Billingsley, Carl C. Runge, Conrad J. Lan-drum, Lawler, Wood & Childress, Ralph R. Wood, William E. Loose, Walter C. Clemons, Pat N. Fahey, J. V. Wheat, and Chas. L. Terry, all of Houston, for plaintiffs in error.
    Charles C. McRae, W. J. Howard, and Williams, Lee, Sears & Kennerly, all of Houston, for defendants in error.
    George T. Burgess, of Dallas, and Raymond Edwards and Samuel Peterson, both of San Antonio, amici curiae.
   SMEDLEY, Commissioner.

The suit is a formal action of trespass to try title, brought by defendants in error against plaintiffs in error for the recovery of two tracts of land in Brazoria County. Plaintiffs in error claim and possess the land through a sale made by a trustee under power of sale given in a deed of trust to secure the payment of a note held by the Federal Land Bank of Houston. Decision of the first and most important question presented in the case requires either the approval or the disapproval of the holding made in the opinion written by Associate Justice Dibrell in Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 771, 147 S.W. 867.

The case was tried before the court without a jury and judgment rendered that defendants in error take nothing. Elaborate findings of fact were made. The Court of Civil Appeals, approving the dissenting opinion of Associate Justice Ramsey in Wiener v. Zwieb, supra, reversed the trial court’s judgment, rendered judgment for defendants in error for the title and possession of the land, and remanded the case for determination of the amount of damages for oil taken from the land and for accounting and adjustment of equities between the parties. Tex.Civ.App., 107 S.W.2d 998.

The facts material to decision of the question first presented are as follows: Title to the land as community property of himself and wife Mathilda was acquired by Max Witthaus through deeds which retained vendor’s liens to secure purchase money notes. On June 3, 1919, after the purchase money notes and the superior title had been assigned and conveyed to the Federal Land Bank of Houston, Max Witthaus and Ma-thilda Witthaus, for the purpose of extending and rearranging the notes, executed and delivered to the Federal Land Bank of Houston their note in the principal sum of $2,650, payable in 68 semi-annual installments, and executed also a deed of trust conveying the land to M. H. Gossett, trustee, to secure the payment of the said note. The grantors in the deed of trust expressly agreed to pay when due all taxes, charges and assessments legally levied against the land, and the deed of trust contained a paragraph by which it was provided that if any of the payments on the note should not be made when due^ or if the grantors should permit any taxes or assessments on the land to become delinquent, or in case of a breach of any of the agreements or covenants made, the whole of the nóte, at the option of the Federal Land Bank of Houston or other holder thereof, should become immediately due and payable, and at the request of the holder of the note the trustee or his successor should sell the property at public auction. By deed dated June 27, 1925, Witthaus and wife conveyed the land to J. W. Hathaway, reserving, however, a ½6 royalty interest. The grantee assumed payment of the note held by the Federal Land Bank of Houston.

Max Witthaus died intestate September 20, 1927, leaving surviving him as his sole heirs his wife, Mathilda, and his two daughters, Ester W. Smith and -Edna W. Keener, who with J. W. Hathaway and the husbands of said two daughters are the defendants in error here. At the time of the death of Max Witthaus he and his wife owned community property, in addition to the royalty interest in the land in controversy, but the value of such other community property was not shown on the trial: Witthaus and his wife owed when he died community debts other than that to the Federal Land Bank of Houston, but no evidence was offered proving or tending to prove that such other debts were not paid when the trustee’s sale of the land in controversy was made. There has never been an administration in probate court of the estate of Max Witthaus and the time within which such administration might have been taken out elapsed more than two years pri- or to the filing of this suit. j

The taxes assessed against the land for the years 1923 to 1927 inclusive were not paid, but became and remained delinquent. On account of such delinquency the Federal Land Bank of Houston exercised its option and declared the entire note for $2,650 due and requested the trustee to sell the land in accordance with the provisions of the deed of trust. At the trustee’s sale, which was made on May 1, 1928, the Federal Land Bank of Houston became the purchaser of the land for the sum of $2,500, and M. H. Gossett, trustee, acting through his agent and attorney in fact G. A. Barth, conveyed the land to the Federal Land Bank of Houston, the conveyance reciting a compliance with the provisions of the deed of trust with respect to the default, the request for sale, the giving of notice, and the time and the manner of sale. The Federal Land Bank of Houston conveyed the land to plaintiff in error C. Natali on May 11, 1928, for a consideration of $3,000, of which $1,000 was paid in cash, the balance being evidenced by a promissory note payable on or before one year from its date. The plaintiffs in error other than Natali claim under Natali.

This suit was filed October 30, 1933, more than six years after the death of Max Witt-haus and more than five years after the trustee’s sale.

The Court of Civil Appeals held that at the time the trustee’s sale was made, which was about eight months after the death of Witthaus, the probate court of Brazoria County was the exclusive agency through which the sale of the land for foreclosure of the deed of trust lien could have been effectually made, and that the trustee’s sale was for that reason void and passed no title.

The holding made in Wiener v. Zwieb, supra, is thus expressed in Associate Justice Dibrell’s opinion [105 Tex. 262, 141 S.W. 773] : “The Court of Civil Appeals, ■speaking through Justice Fly, in an elaborate and well-considered opinion, holds the view that where there was no administration on the estate of the grantor, and after the lapse of four years, the time within which an administration could be sued out, a sale under the deed of trust after the death of the grantor and before the lapse of four years was valid, and passed title to the land conveyed, and we approve that holding,”

The opinion contains the following more explicit statement as to the validity of the trustee’s sale and the effect of the trustee’s deed: “The trustee’s deed, made after the death of the constituent and before the lapse ot the time within [which] an administration might have been sued out on the estate of the grantor, was valid and effective, and passed the title to the land conveyed, subject only to be set aside by an administration for the payment of such preferred claims as might have existed uiider the law at the time, and as such deed might have interfered with the orderly administration of said estate. Such deed, made under the circumstances of this case, was neither invalid nor in a state of suspense, except in so far as it might have interfered with the due execution of an administration of the estate of the deceased grantor in said deed of trust, but, to the contrary, said deed was valid and effective, and upon its execution passed the title to the purchaser of said land at said sale against the heirs of the deceased and all other persons with the bare exception above stated.”

Chief Justice Brown, writing on motion for rehearing in Wiener v. Zwieb, supra, said that the court was not convinced that it erred in holding in the former opinion that a sale of real estate under a deed of trust within four years after the death of the mortgagor and before administration would be voidable and not void, and that, having reached upon further consideration the conclusion that the facts did not demand a decision of that issue, the court would limit the opinion to the present case. Thereupon in a brief opinion he expressed the conclusion that the power of sale was not suspended by the mortgagor’s death and that the trustee’s sale vested title in the purchaser because the land, being homestead, did not form, under the applicable statute, the act of August 15', 1870, Acts 12th Leg. c. 28, any part of the estate of the deceased mortgagor and was not subject to administration by the probate court.

The court did not withdraw the carefully prepared and well-reasoned opinion written for the majority by Judge Dibrell and did not in the opinion on rehearing express doubt as to its correctness. Judge Dibrell’s opinion, until the decision of the instant case by the Court of Civil Appeals, has remained unchallenged except by Judge Ramsey’s dissenting opinion. Furthermore, the holding made by the majority in that case was given express approval in a recent decision, Freece v. Truskett, 130 Tex. 90, 94, 106 S.W.2d 675, 677. In the case last cited a sale of land was made by a trustee, acting under the power given in a deed of trust, within four years after the death of the mortgagor and while his estate was being administered by the independent executor of the estate. There was no administration under the direction of the probate court and the four years allowed for such proceeding had expired more than four years before the suit was instituted. The court held in answer to certified question that the trustee’s sale was not void, basing its ruling upon two distinct grounds, the first of which was the holding of the majority of the court in Wiener v. Zwieb, supra. The opinion, written by Judge German and adopted by the court, cites Wiener v. Zwieb, supra, and quotes with apparent approval that part of Judge Dibrell’s ■opinion hereinbefore set out in which the ■court’s conclusion is stated to be that the trustee’s deed, although made after the death of the mortgagor and before the lapse of the time within which an administration might have been sued out on his ■estate “was valid and effective, and upon its execution passed the title to the purchaser of [the] land * * * subject only to be set aside by an administration for the payment of such preferred claims as might have existed under the law at the time, and as such deed might have interfered with the orderly administration of ■said estate”.

We think that whatever doubt may have existed, on account of Judge Ramsey’s dissenting opinion and Judge Brown’s ■opinion on rehearing, as to the authoritative value of the conclusion expressed in Judge Dibrell’s opinion in Wiener v. Zwieb, supra, has been removed by the recent approval given that conclusion in Freece v. Truskett, supra, and that the said recent decision recognized the holding made in Judge Dibrell’s opinion as the settled rule in this state. However, in view of the ruling of the ■Court of Civil Appeals in the instant case which, it should be said, was made before Freece v. Truskett, supra, was decided, and -on account of the insistence of defendants in error that the trustee’s sale was void because made within four years after the ■death of Witthaus, we have carefully considered the several opinions in Wiener v. Zwieb, supra, and the authorities bearing upon the question under consideration. It is our opinion, based in the main upon the ■authorities cited and discussed and the reasoning contained in Judge Dibrell’s opinion, that the fact that the trustee’s sale in the instant case was made within four years after the death of Witthaus did not render the sale invalid either as to the interest in the land owned by Witthaus at the time of his death or as to the interest which had been conveyed to Hathaway, and this notwithstanding the absence of evidence showing whether there were or were not, at the time the trustee’s sale was made, any creditors who might have demanded an administration of the decedent’s estate.

The decision made by the majority of the court in Wiener v. Zwieb, supra, as to the validity of the trustee’s sale is supported by the same reasoning as that used in Solomon v. Skinner, 82 Tex. 345, 18 S.W. 698, and in Taylor v. Williams, 101 Tex. 388, 108 S.W. 815, 817. In the Solomon case the owner of a note secured by vendor’s lien filed suit in district court against the heirs of the deceased debtor for the enforcement of the lien when the jurisdiction of the probate court had not been invoked for settlement of the estate. It was held that the district court had the power to proceed to judgment and to order a sale of the land for the payment of the debt without contravening the policy of the probate laws. The court pointed out in the opinion that creditors of the decedent could, at any time before the sale of the land under execution, arrest the proceedings by taking out letters of administration and draw the enforcement of the claim to the county court. But the existence of such unexer-cised right in the creditors would not affect the power of the district court to enforce the lien.

It was held in Taylor v. Williams, supra, that the pendency of administration by an independent executor neither extinguishes nor supersedes the power of sale of a trustee appointed by the testator. In answer to the argument that an estate which has been committed to the independent control of an executor is still within the scope of the general jurisdiction of the probate court in the sense that in certain contingencies that court may make some orders affecting it, or may take charge of and have it administered as other estates, the court said: “The authority given to the probate court to make certain orders while the estate is being independently, administered does not affect the question, and the taking of. the administration out of the independent control of the executor, and subjecting it to regular administration as other estates, only determines the proper course of proceedings thereafter to be had. The power in the court, ultimately, to assume such control, no more negatives the prior existence of the power of sale than it negatives the right of action in the 'courts of civil jurisdiction for the enforcement of claims. After the assumption of such control by the probate court, both modes of procedure may be superseded by that prescribed in the probate law; but this does not prove that they .were not authorized so long as the independent control of the executor continued” (Our italics.).

In both cases, Solomon v. Skinner and Taylor v. Williams, supra, the estates were within the scope of the jurisdiction of the probate court, but that court’s jurisdiction had not been invoked and was not being exercised: And it was held in the one case that such potential jurisdiction, or the mere existence of the power to assume control, does not negative the right of action in the court of civil jurisdiction for enforcement'of the lien, and in the other case that such potential jurisdiction or power to assume control neither extinguished nor superseded the power of sale given the trustee.

The death of Witthaus did not revoke the power' o.f sale given in the deed of trust. The jurisdiction of the county court to administer the estate has never been invoked and the time within which such administration could have been sued out had elapsed when this suit was filed. The trustee’s sale, therefore, did not interfere with the orderly enforcement of administration in the county court, for there ■has not been and cannot be now, an administration in that court. Under the two authorities above discussed, the existence in the probate dourt of a jurisdiction to assume control of the estate for administration, which was never invoked and never exercised, neither extinguished nor superseded the power of sale given the trustee by the' deed of trust. , ,

In our opinion the Court of Civil Appeals erred in holding that the Federal Land Bank of Houston, by its answer in a suit filed by the sta,te against it and Hathaway for the collection of taxes for the years 1919 to 1926, elected its remedy against Hathaway and Witthaus and was estopped by such election from, accelerating the maturity of the debt for nonpayment of taxes. That answer sets out a paragraph of the deed of trust, which authorizes the holder of the note to pay unpaid taxes and provides that any such payment shall be secured by the deed of trust lien, and the answer prays that the bank have judgment against Hathaway and Witthaus for the amount it should have to pay and that the jüdgment be so worded as to subrogate it to the state and county. In addition to the paragraph with' respect to taxes set out in the said answer, the deed of trust further provides that if the mortgagors “permit any taxes or assessments on said land to become delinquent” the whole of the note secured by the deed of trust shall at the option of the holder immediately become due and payable.

It is shown by the findings of the trial court, supported by evidence, that the taxes levied and assessed on the land for the years 1923 to 1927, inclusive, were not paid when due and were permitted to become delinquent and that on account of that fact the Land Bank on March IS, 1928, exercised its option and declared the entire $2,650 note due and requested the trustee to sell the land. The Land Bank did pay these delinquent taxes, but payment of them was made on May 15, 1928, which was after the trustee’s sale and conveyance of. the property to the bank. Thus it is apparent that the trustee’s sale was not made for the collection of taxes paid by the Land Bank or for foreclosure of a lien on account of such payment. The trustee’s sale was made for foreclosure of the lien securing the $2,650 note which had become due by the bank’s exercising its option to accelerate its maturity when the mortgagors permitted the taxes to become delinquent. The right to accelerate the maturity of the note for such reason .was a reasonable provision to prevent the impairment of the lien securing the note by a superior lien securing unpaid taxes. In such state of facts -the foreclosure by trustee’s sale was not the exercising of a remedy for collection of taxes paid by the bank or for foreclosure of a lien securing a payment of taxes. Furthermore, even if the relief prayed for by the Land Bank in the tax suit and that sought in the foreclosure by trustee’s sale could be regarded as coexisting remedial rights, the taxes for the year 1927 were not involved in the tax suit and the Land Bank in its answer made no election of remedy in respect to taxes for that year. Its right, therefore, to declare the note due on account of the ■mortgagor’s failure to pay taxes for 1927 before they became delinquent was not affected by its answer in the tax suit

By several assignments of error the contention is made that the Land Bank waived its option to accelerate the maturity of the note, by reason of promising Hathaway that it would not mature the note if he made partial payment of the taxes and by accepting such partial payment from Hathaway made in reliance upon the bank’s promise, and that by like promise the Land Bank waived the acceleration after it had formally elected to exercise the option. The trial court found that as early as March, 1927 and several times thereafter the Land Bank requested Hathaway to pay the delinquent taxes for the years 1923 to 1927, and notified him at said times that unless he paid the taxes the bank would accelerate the maturity of the note and foreclose the deed of trust under the power of sale, and that Hathaway, although recognizing his liability therefor, failed to pay the taxes or any part of them. The court made the further finding: “The Federal Land Bank of Houston at no time prior to the acceleration of the maturity of the amortization note and the foreclosure of its deed of trust formed or had any intention of relinquishing or waiving its right to accelerate the maturity of said note and have said deed of trust foreclosed under the power, of sale for non-payment of taxes as the same became due and before same became delinquent. Nor did said bank or its agents or officers say or do anything which in law would constitute or amount to such a waiver. Nor did the words, acts or conduct of its agents or officers lead or induce plaintiffs or either of them to so believe, nor did plaintiffs or either of them act to their detriment in reliance on the belief that the bank had so waived its said right.”

We have carefully examined all of the evidence in the statement of facts that has any bearing on the alleged waiver and find no evidence that contradicts or tends to disprove the foregoing facts found by the trial court. Hathaway, although present at the trial of the case, did not testify. His deposition was taken but neither party offered any portion of it in evidence. It. is shown that the bank from March, 1927 to the latter part of January, 1928, repeatedly urged Hathaway to make payment of the delinquent taxes and that the only payment made by him was of the taxes for 1922 and a small balance due on taxes for years prior to 1922. This payment was made in the early part of October, 1927, or a short time before. There is no evidence that such payment was made in reliance upon any promise by the bank to waive, or postpone for any certain time,the acceleration of the maturity of -the note. At the time the one payment was made Hathaway promised that he would pay taxes for another year within ninety days. On January 21, 1928, after the expiration of the ninety days, the Land Bank reminded him that he had not kept his promise to pay taxes for an additional year and told him that unless he made another substantial payment of taxes the bank would have to foreclose. Hathaway made no other payment.

There is evidence that G. A. Barth, after the bank had declared the entire note due, urged Mrs. Hathaway to make substantial payment on the taxes in order to stop the foreclosure, telling her that if she made such payment she could proceed with the amortization payments; but there is no evidence that any payment of taxes was thereafter made or that defendants in error either did or refrained from doing anything in reliance upon such representation, or that defendants in error were caused thereby to believe that without such substantial payment acceleration would be waived or foreclosure postponed. In our opinion the option to accelerate was not waived, either before or after it was formally exercised.

Defendants in error contend that the sale under the deed of trust and the trustee’s deed were invalid because the sale was made and the deed was executed by G. A. Barth, acting as attorney in fact for M. H. Gossett, trustee, rather than by Gossett in person. The deed of trust provides that if the trustee dies, removes from the state, becomes disqualified or refuses to act, the owner or holder of the note may appoint a substitute trustee by written instrument duly recorded, and that such substitute trustee shall have all of the rights, powers and duties of the trustee. It contains also the following provision: “And the said trustee or any subr stitute or successor trustee is hereby authorized and empowered to appoint an attorney in fact.to act as trustee under him and in his name,' place and stead, such appointment to be evidenced by an instrument signed and acknowledged by said* trustee, substitute or successor; and all acts done by said attorney in fact shall be valid, lawful and binding as if done by said trustee, substitute or successor in person.”

After M. H. Gossett, the trustee, had caused the notices of sale to be posted, he signed and acknowledged an instrument in writing, by which,' and for the purpose of carrying out the provisions- of the deed of trust and selling the property, he appointed G. A. Barth “my true and lawful attorney in fact to act for me and under me and in my name, place and stead, to sell the above described property in the manner provided for in the said deed of trust and in accordance with the law, and to make, execute and deliver to the purchaser thereof a proper deed of conveyance, and I do hereby ratify and confirm any and all such acts and things as my said attorney may lawfully do in the premises.” Barth made the sale and executed the trustee’s deed as attorney in fact for M. H. Gossett, trustee. Gossett was not present at the sale. The argument made by defendants in error is that the deed of trust invests the trustee with discretion in making the sale and that the trustee cannot delegate such discretion to another. The position thus taken would be correct, had the deed of trust not given the trustee . the power to delegate his authority. The express terms of the deed of trust above quoted confer upon the trustee authority to appoint an attorney in fact to act as trustee and declare that all acts done by such attorney in fact shall be valid and binding as if done by the trustee in person. The attorney in fact, therefore, was duly authorized to conduct the sale and to execute the deed to the purchaser. Hess v. Dean & Kesterson, 66 Tex. 663, 2 S.W. 727. The use of the phrases “under him” and “under me” in the deed of trust and in the instrument appointing Barth attorney in fact did not require the personal presence of the trustee at the sale, for the language above quoted from the deed of trust, as well as that quoted from the instrument appointing the attorney in fact, clearly means that the acts of the attorney in fact in making the sale and executing the deed shall be as effective and binding as if performed by the trustee in person. No conflict exists between the power given the beneficiary to appoint a substitute trustee and that given the trustee to appoint an attorney in fact. The one is to be exercised by the beneficiary when the trustee dies, removes from the state, becomes disqualified or refuses to act. The other is to be exercised by the trustee when, although not disqualified and not unwilling to act, he needs, or believes he needs, the services of another in the performance of his duties.

Several other assignments of error questioning the validity of the trustee’s sale are presented by defendants in error. All have been carefully considered and are overruled. To avoid extension of this opinion tQ unreasonable length, the points made by the assignments and the reasons for overruling them, will be stated briefly.

The acceleration of the mortgage note and foreclosure by trustee’s sale, on account of the failure of the mortgagor to pay taxes, were authorized by the Federal Farm Loan Act of July 17, 1916, 12 U.S.C.A. §§ 641-1019. The ninth subdivision of Section 771, 12 U.S.C.A., requires that the borrower undertake, by express covenant in his mortgage deed, to pay all taxes when due; and the tenth subdivision of the same section requires the borrower to enter into an agreement that if he “shall be in default in respect to any condition or covenant of the mortgage, the whole of said loan shall, at the option of the mortgagee, become due and payable forthwith.” (Our italics)

The by-laws of the Federal Land Bank of Houston, offered in evidence, confer upon the executive committee of the Land Bank, subject to the supervision and control of the 'board of directors, various powers, among them being the power to declare any note due and to cause foreclosure of the lien securing it; and so the by-laws authorized the executive committee’s action, evidenced by resolution of date March 15, 1928, by which it declared the note made by Witthaus due and directed the sale of the land by the trustee. While the board of directors has general supervision and control over the executive committee, it is not necessary for the board to give explicit or express direction for every act of the committee. Helms v. Home Owners’ Loan Corporation, 129 Tex. 121, 103 S.W.2d 128; San Antonio Joint Stock Land Bank v. Taylor, 129 Tex. 335, 105 S.W.2d 650.

If it is true that some of the taxes assessed against the land were taxes on personal property and poll taxes and not lawfully charged against the homestead, such fact did not render the trustee’s sale-void. Most of the unpaid taxes were lawful charges. “A sale made under a deed in trust for a sum larger ’than the amount with which the property is properly chargeable is not void”. W. C. Belcher Land Mortgage Co. v. Taylor, Tex.Com.App., 212 S.W. 647, 649; Groesbeeck v. Crow, 85 Tex. 200, 20 S.W. 49; State Mortgage Corporation v. Ludwig, 121 Tex. 268, 48 S.W.2d 950. As has been shown, however, the trustee’s sale was not for the collection of taxes or on account of payment of taxes made by the Land Bank. The foreclosure was for the collection of the note, the maturity of which was accelerated by reason of the mortgagor’s failure to pay taxes. The right to accelerate maturity of the note arose whenever any taxes, lawfully assessed, were permitted to become delinquent. What is here said answers also the proposition that no valid contract lien could he created against the homestead to secure payment of taxes.

Another proposition advanced by defendants in error against the validity of the trustee’s sale is that the provision in the deed of trust giving the option to accelerate the maturity of the note on account of- failure to pay taxes is void as an additional burden on the homestead of Witthaus and wife, there having been no such acceleration clause in either of the two deeds by which the land was conveyed to Witthaus. In support of this proposition defendants in error cite Finley v. Wakefield, Tex.Civ.App., 184 S.W. 755, which holds that a lien for attorney’s fees against a homestead cannot be created in a contract renewing and extending purchase money notes unless the original notes provided for the payment of attorney’s fees. The reason for the decision made in that case is that, as the agreement to pay attorney’s fees was made after the property was acquired and had become homestead, the attorney’s fees were not part of the purchase money but constituted a new, distinct and additional obligation, and that such obligation for attorney’s fees is not embraced within the exceptions named in the Constitution for which the homestead may be incumbered.

A different principle is involved here. No new debt, no additional obligation secured by lien against the homestead, was created or attempted to be created by that part of the deed of trust which gives the owner of the renewal note the option to accelerate its maturity upon the failure of the mortgagor to pay taxes. Such provision does not impose an additional burden on the homestead. It adds nothing to the debt secured by the existing lien; it merely relates to the time for the payment of that debt. The note for $2,650 secured by the deed of trust was given in the re-newal of the principal of the original purchase money notes secured by vendor’s liens. The note and the deed of trust extended the time for payment of the debt far beyond the due dates of the original notes, at the same time giving the holder of the note the option to change the time of payment by accelerating the- maturity if the mortgagor should fail to perform his obligation to pay taxes. The conclusion that the provision for acceleration is not void as an additional burden on the homestead is supported by Bellamy v. Oklahoma Farm Mortgage Co., Tex.Com.App., 278 S.W. 180. See also Hall v. Hix, Tex.Civ.App., 297 S.W. 491, application for writ of error refused; Jackson v. Bradshaw, 24 Tex.Civ.App. 30, 57 S.W. 878, application for writ of error refused.

We overrule the assignments of error which present the contention that there was no effective acceleration of maturity of the note on account of the absence of evidence showing notice to the mortgagors of the exercise of the option and presentment of the note to them after its maturity was accelerated. Chandler v. Guaranty Mortgage Company, Tex.Civ.App., 89 S.W.2d 250; Dieter v. Bowers, 37 Tex.Civ.App. 615, 84 S.W. 847, application for writ of error refused; Chase v. First National Bank of Cleburne, 1 Tex.Civ. App. 595, 20 S.W. 1027; Amuny v. Seaboard Bank & Trust Company, Tex.Com.App., 23 S.W.2d 287.

There is no merit in the assignment which questions the validity of the trustee’s sale because the notices of sale were posted by a deputy sheriff rather than by the trustee in person. The trial court found that the trustee M. H. Gos-sett advertised the land for sale by causing written notices to be posted at three public places in the county, one of which was at the courthouse door. This finding is supported by the recital in the trustee’s deed to the effect that the trustee did advertise the land for sale in the manner required by the deed of trust and in accordance with the laws of the state and by the testimony of the deputy sheriff that he posted the written notices at three public places in the county, one at the courthouse door, one in the town of Freeport, and one in the town of West Columbia. From the recitals in the deed of trust to the effect that in case of sale all prerequisites to sale shall be presumed to have been performed, and that all statements of facts in any conveyance given under the deed of trust as to advertisement of sale, etc., shall be prima facie evidence of the truth of the facts stated, and from the recitals above referred to in the trustee’s deed, the presumption arises that public notice of the sale was given as required by law and by the terms of the deed of trust. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; McFarlane v. Whitney, Tex.Com.App., 134 S.W.2d 1047. The testimony of the deputy sheriff is' in accord with the presumption. There is no evidence in contradiction. It was not necessary that the notices be posted personally by the trustee. Roe v. Davis, 106 Tex. 537, 172 S.W. 708; Adams v. Zellner, supra; Smith v. San Antonio Joint Stock Land Bank, Tex.Civ.App., 130 S.W. 2d 1070, application for writ of error refused.

We approve the trial court’s conclusion, that “the conditions and prerequisites to the power of sale by the trustee were present and that the trustee had the power to sell and correctly and legally exercised said power and correctly and regularly held such sale”. It is unnecessary to consider assignments in the application, for the writ relating to collateral attack, bona fide purchaser and statutes of limitation.

■The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: HICKMAN, Commissioner.

license: Public Domain

text:
    J. S. ABERCROMBIE CO. v. DELCOMYN.
    No. 2292—7446.
    Commission of Appeals of Texas, Section A.
    Feb. 7, 1940.

      Vinson, Elkins, Weems & Francis, Frank G. Dyer, Simon Frank, and Wm. S. Clarke, all of Houston, for plaintiff in error.
    Allen, Helm & Jacobs and Wm. States Jacobs, Jr., all of Houston, for defendant in error.
   HICKMAN, Commissioner.

In the trial court defendant in error, Roy Delcomyn, recovered judgment against plaintiff in error, J. S. Abercrombie Company, for damages on account of personal injuries sustained by him in a collision at a street intersection in the City of Houston, which judgment was affirmed by the Court of Civil Appeals. 116 S.W.2d 1105. For convenience Delcomyn will be called plaintiff, and J. S. Abercrombie Company, defendant.

Just prior to the collision a truck belonging to defendant was being driven west on Polk Avenue by one of its employees transporting two metal pipes, each 20 inches in diameter and about 38 or 40 feet in length. Above the rear wheels of the truck was a bolster upon which the pipes rested three or four feet from one end. About the same distance from the other end the pipes were supported by a trailer consisting of two wheels and an axle. There was no coupling between these wheels and the truck, . except the pipes, the trailer being attached to these pipes by chains. Plaintiff was driving south on Caroline Streét at night after the signal lights at the intersection had ceased operating. When he reached the intersection he slowed down his automobile, but did not bring it to a complete stop. According to his testimony he saw the truck, but did not see the pipes or the trailer wheels. After he slowed down and saw the truck pass he speeded up his car and drove it into the side of the pipes. The part of his car which struck the pipes was the windshield, the hood and radiator having gone under them.

In answer to special issues the jury found that defendant was negligent in failing to have a warning signal on the pipes visible from the side, and that such negligence was a proximate cause of the collision. Various issues as to the contributory negligence of the plaintiff were submitted, each of which was answered in his favor. On the question of the failure of the plaintiff to bring his car to a complete stop before entering the intersection, it was the view of the trial judge that by such failure plaintiff violated an ordinance of the city requiring that vehicles be brought to a full stop before entering that intersection, by reason of which, plaintiff was negligent as a matter of law. Accordingly there was submitted to the jury only the issue of whether such failure was a proximate cause of plaintiff's injuries. To that issue the jury answered “No.” Plaintiff filed no exceptions to the charge, thereby acquiescing in the ruling that his acts constituted negligence per se.

Defendant takes the position that the court should have granted its request timely filed, for a peremptory instruction in its favor; basing its contention upon the ground that plaintiff’s negligence in. failing to stop was, as a matter of law, a proximate cause of his injuries. With this we cannot agree. The principle is well established in this jurisdiction that anticipation of injury is an element of proximate cause. Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162. Other authorities are collated in 30 Tex.Jur. 699, sec. 47. An equally well-settled principle is that the same necessity exists for a proper application of the law of proximate cause in a case where the negligence consists in the violation of a statute or an ordinance as in an ordinary negligence case. Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; Tarry Warehouse & Storage Co. v. Duvall, 131 Tex. 466, 115 S.W. 2d 401; Paris & G. N. Ry. Co. v. Stafford, Tex.Com.App., 53 S.W.2d 1019; Texas & N. O. Ry. Co. v. Harrington, Tex.Com.App., 235 S.W. 188.

Unless, therefore, it can be said, as a matter of law, that plaintiff should have anticipated injury as a result of his violation of this ordinance, the court properly refused to grant the motion for a peremptory instruction. The general description of the truck and trailer, as given above, supplies all the evidence necessary to make it appear that reasonable minds might differ on the question of whether a person of ordinary prudence, situated as was plaintiff, should have anticipated injury as a result of entering' the intersection in question under the circumstances shown in this record. Jurors might reasonably conclude, as the jurors in the instantcase must have concluded, that the situation created by the long pipes protruding from the rear of the truck, higher from the ground than the hood of plaintiff’s car, with no light visible from the side, was dangerous and that a person of ordinary prudence might have failed to discover it, and, therefore, might have failed to apprehend danger in entering the intersection without first stopping. The assignment presenting this question is overruled.

Another ground of complaint is the ruling of the trial court that certain argument of one of plaintiff’s attorneys to the jury was not improper. As noted above, there was submitted to the jury the issue of whether plaintiff’s failure to bring his car to a complete stop before entering the intersection was a proximate cause of his injuries. The term “proximate cause” was defined in the charge. Such definition employed the phrase “new and intervening cause.” This latter phrase was then defined as follows: “By the term ‘new and intervening cause’ as used in the above definition of proximate cause, is meant an agency which breaks the causal connection between the original act and the injury, and which of itself is sufficient to produce the injury, or some like injury. The agency must not be set in motion by the party who initiated the original act, and which agency and its consequences a person of ordinary prudence under the same or similar circumstances would not have reasonably anticipated.”

One of plaintiff’s attorneys, in addressing the jury, gave his analysis of the foregoing definition and in the course of his discussion used, this language:

“Now, what does the court say proximate cause is? A cause which in a natural and continuouse sequence, — not an unnatural sequence as we have in this accident, but a natural sequence produces an event. * * *
“The next element of proximate cause is that it must be, * * * remember Mr. Dyer asked you to find that failure to stop was the proximate cause, but the court tells you on the law which you have to take, that in order for it to be a proximate cause it must continue in a natural sequence, unbroken by any new and independent cause to produce the event, and right under that he defined a new and independent cause. Now, if the original act is broken or interrupted by a new and independent cause, that new and intervening cause which is itself sufficient to break the sequence and produce the injury, then the original act, namely, driving across without not coming to a complete stop, could not be the proximate cause. The new and intervening cause, whether it was sufficient in itself to produce the injury * * * could produce it nor did it produce it, but, could it produce it. That being the case, you can look to any cause, namely, the invisible pipe, as being a new and independent cause which broke the sequence between any possible negligence in driving across that line and the injury itself. * * So I say to you, regardless of whether he violated the ordinance, regardless of whether it was negligence, it was not a proximate cause of the collision, because there was another new and intervening cause, the negligence of the defendant in putting that pipe there, * * *

Defendant’s counsel made specific objections to this argument, which objections were overruled, and from which objections we quote: “ * * * because said argument is a misconstruction of the law as applied to the facts in this case in that it advises the jury wrongly that the negligence of the truck driver was a new and intervening cause, whereas under the law and under the court’s instruction as applied to the facts in this case, the negligence of the truck driver could not be a new and intervening cause * * *. because according to the undisputed facts in this case, no act of negligence on the part of the truck driver complained of by plaintiff was sufficient in itself to have produced plaintiff’s injury, and for this reason said argument to the jury that the negligence of the truck driver was a new and intervening cause breaking the sequence of plaintiff’s negligence was highly improper and prejudicial to this defendant, * * *

In substance and effect this argument informed the jury that under the court’s charge, the defendant’s negligence, was a new and intervening cause, which prevented plaintiff’s own negligence from being a proximate cause of his injuries. The question thus presented for decision is whether, under the definition above copied, the primary negligence of defendant, made the basis of its liability, could be a new and intervening cause, breaking the causal- connection between plaintiff’s own negligence and his injury.

Any correct definition of new and intervening cause will exclude the idea that the negligent act of either of the parties may constitute such cause. Lowrimore v. Sanders, 129 Tex. 563, 103 S.W.2d 739; Young v. Massey, 128 Tex. 638, 101 S.W.2d 809; Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60. We have no pres■ent concern with the question of whether the court’s definition is correct. That question is not presented for decision. The ■question is whether counsel misstated the law as set forth in the charge and not whether the court misstated the law in the •charge. It is not necessary that we make a careful analysis of. all the language of the definition, for of this we may be certain, that it requires that the new and intervening cause be sufficient of itself to produce the injury. Defendant’s negligence could not have produced this injury, but for some act upon the part of plaintiff. Our conclusion is that the argument did not correctly state the law as given in the ■charge, and was therefore improper argument. City of Dallas v. Firestone Tire & Rubber Co., Tex.Civ.App., 66 S.W.2d 729, •error refused; Texas Life Insurance Co. v. Plunkett, Tex.Civ.App., 75 S.W.2d 313.

A question is raised as to whether defendant objected to the argument in the proper manner. The bill of exceptions preserving this matter is qualified by the trial judge as follows: “ * * * all of the ■objections and motions were made by defendant’s counsel without interrupting plaintiff’s attorney and without notice to him.” There is no statute prescribing the manner of objecting or excepting to improper argument. The duty rests upon the trial judge to control the matter, when his attention is called thereto, and no reason •can be perceived why the attorney who is indulging in improper argument should be notified of that fact by the attorney for the ■other party. Behringer v. South Plains Coaches, Tex.Com.App., 13 S.W.2d 334.

Other questions are presented in the application, but they probably will not arise upon another trial, and will not, therefore, "be discussed in this opinion.

The judgments of the trial court and the Court of Civil Appeals will both be reversed and the cause remanded.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. BRITTON.
    No. 7418.
    Commission of Appeals of Texas, Section A.
    Feb. 7, 1940.

      Lawther, Cramer, Perry & Johnson, of Dallas, for plaintiff in error.
    Geo. W. Barcus, of Austin, and Carl Mason and W. V. Dunnam, both of Waco, for, defendant in error.
   GERMAN, Commissioner.

It is advisable to set out first the factual background of this suit.

During the year 1932, one Gross was appointed by the District Court of Nueces County receiver for certain lands in Mc-Lennan County belonging to the 'Porter-field estate. Said receiver through an agent rented to Walter Britton for the year 1934 a part of said Porterfield lands, and the rental contract, among other things, contained a provision that Britton was to pay as rental one fourth of the cotton raised upon the land rented to him. It "is’undisputed that the rental due by him from the cotton raised on the land was $226.55.'

After appointment of the receiver in Nueces County the Dallas Joint Stock Land Bank sued representatives of the Porter-field estate in the District Court of Dallas County to foreclose a lien upon the land in McLennan County, a part of which was rented to Britton in 1934 as above stated. In that proceeding a receiver was appointed by the Dallas County District Court. In the case of Gross v. McCallum, 123 Tex. 110, 69 S.W.2d 46, the Supreme Court held that the receiver appointed by the Dallas County District Co"urt had superior right to possession of the Porterfield property. On the 12th day of October, 1934, T. M. Dillard was appointed by the Dallas County District Court to succeed the previously appointed receiver. The order appointing Dillard authorized him to take possession of the property in McLennan County and to “receive and collect rents and revenues due and unpaid by tenants, or thereafter to become due.” Apparently at this date Britton had moved from the Porterfield land, but had not paid the $226.55 rent. Shortly after his appointment. Dillard made demand upón Britton for said rent. Brit-ton refused to pay same to the receiver, claiming that he was due an offset of $375 for certain work done under some kind of agreement with the agent of Gross, the receiver appointed by the District Court of Nueces County, whose authority had been superseded by the appointment of the receiver in the Dallas County District Court. Dillard refused to recognize the justness of the offset, but insisted upon Britton paying the $226.55 to him as receiver. Dillard reported the matter to the attorneys for the Dallas Joint Stock Land Bank, who appeared to -have also represented Dillard himself to some extent.

On January 5, 1935, an attorney for the Dallas Joint Stock Land Bank filed in the receivership proceeding, in the name of and on behalf of the bank, an affidavit setting out the fact of the appointment of a receiver, stating his powers, that Britton was due said receiver rents for the year 1934, and that he had refused to turn same over to the receiver. The prayer was that said Britton be held in contempt of court for such failure. Although cited to appear and show cause, Britton did not appear before the court at the appointed time, and the Court did not hold him in contempt.

On February 15, 1935, the attorney for the bank, in the name of the bank and on its behalf, filed another affidavit in substance the same as the one of date January 5, 1935. Citation to Britton was issued and served upon him, commanding that he appear on March 9, 1935, and show cause why he should not be held in contempt for his failure to turn over to the receiver the rents in question. To this citation was attached a copy of the affidavit filed February 15, 1934. On March 9, 1935, in response to said citation Britton appeared in the District Court of Dallas County with his attorney and a hearing was held. The-judgment then entered recites the appearance of Britton with his attorney, the hearing of proof and the argument of counsel. The court at such hearing found that Britton had in his possession the sum of $226.55 due the receiver as rents, and that he had failed and refused to turn same over to said receiver. In the present action, the testimony showed that Britton at that time testified, and, presumably at least, set up his counter claim. The court thereupon entered an order declaring Britton in contempt, but expressly allowed him until April 9, 1935, to pay over said rents to the receiver. The testimony of the district judge shows that Britton promised to pay the rent money to the receiver, and was given the assurance that a claim filed by him with the receiver for the claimed offset would receive proper attention. A letter of date April 13, 1935, by the attorney for Britton to the attorney for the bank stated that Britton was perfectly willing to adjust the matter, provided the attorney for the bank would assist in the collection of the claim due him, Britton, under the agreement with the Nueces County receiver.

Nothing further was done in the matter. On November 6, 1935, the district judge asked the attorney for the bank if Britton had turned over the $226.55 to the receiver, and the attorney advised the judge that this had not been done. Thereupon the district judge entered another order declaring Britton in contempt and directing the issuance of a commitment. Writ of commitment issued November 9, 1935, and was served upon Britton in McLennan County November 23, 1935. Britton was committed to jail on Saturday night, where he remained until released by an order of the Supreme Court on Monday afterwards. Later, in a habeas corpus proceeding in the Supreme Court, he was discharged. Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224.

The present suit was instituted May 21, 1936, by Walter Britton as plaintiff, who will be so designated here. It was against Dallas Joint Stock Land Bank, a corporation, Searcy L. Johnson, attorney for said bank, Smoot Schmidt, Sheriff of Dallas County, W. D. Walker, a deputy sheriff, and T. M. Dillard, receiver. The amended petition on which trial was had does not show that the district judge was made a party, but there is an order entered dismissing the cause as to him. All parties other than the Dallas Joint Stock Land Bank were dismissed from the case, and said bank is the sole remaining defendant. It will be so designated here.

In the district court the jury found in favor of plaintiff for the sum of $4,000 actual damages, and for the sum of $5,000 exemplary damages. The trial court required a remittitur of $1,500 of the actual damages and entered judgment for $7,500. The Court of Civil Appeals required a re-mittitur of $2,500 exemplary damages and affirmed the judgment of the district court. 114 S.W.2d 907.

The cause was tried in the district court on the theory that it was a suit for malicious prosecution. It was decided by the Court of Civil Appeals upon that theory. It has been briefed by all parties as such a case. This fact being of controlling importance, we shall' seek to demonstrate that the case was pleaded and tried as one for malicious prosecution.

Plaintiff in his petition, after formal allegations, alleged that defendants “entered, into a conspiracy to harass, persecute, imprison, malign, injure and maliciously prosecute plaintiff by instituting a series of suits, petitions requiring plaintiff to appear in the District Court of Dallas County to show cause why he should not be punished as for contempt.” He then alleged the appointment of a receiver by the District Court of Dallas County, the appointment of a receiver by the District Court of Nueces County, the agreement between himself and the last named receiver, the filing of a statement with the Dallas County Receiver showing amount of the rent due and the amount of the offset claimed by him. He further alleged that he was not a party to the receivership proceeding, and that the court did not have jurisdiction of the claim involving rents. It is then alleged that the defendants “for the purpose of injuring, harassing, 'maliciously prosecuting and imprisoning plaintiff in jail, instituted and carried on the following acts.” He then sets out (a) the filing of the affidavit of January 5, 1935, and the action of the court thereon; (b) the filing of the affidavit of February 15, 1935, the issuance of citation thereon, the hearing on March 9, 1935, and the action of the court at such hearing; (c) the action of the court on November 6, 1935, resulting in the entry of another order of contempt and directing issuance of commitment; and (d) the issuance of commitment and service upon him, as result of which he was confined in jail. The following general allegation is then made: “Plaintiff shows to the Court that each and all of said acts above done were for the use and benefit of the defendant, The Dallas Joint Stock Land Bank of Dallas, and all of same were done maliciously, wilfully and wantonly and without probable cause therefor by said defendant.”

Plaintiff then sets out allegations pertaining to the matter of injuries and damages.

It is then alleged that “in the institution and prosecution of said wrongful suits and actions against him, etc., defendants and each of them acted maliciously, intentionally and without just cause or excuse and without probable cause.” The following general allegation is then added: “Plaintiff alleges that the defendants and each of them maliciously, wilfully and without probable cause, and with the intention of injuring plaintiff, and in furtherance of the malicious prosecution of him as herein-before fully set forth, caused the Sheriff of Dallas County through his deputy, W. D. Walker, to come to McLennan County and arrest plaintiff and carry him to Dallas County where he was incarcerated in jail as hereinbefore set forth.”

Preliminary to setting out some-of the special issues submitted to the jury we call attention to the fact that want of probable cause and malice are two of the essential elements of a cause of action for malicious prosecution. They are neither essential elements of a cause of action for false imprisonment, although malice may be pleaded in connection with a claim for exemplary damages.

Special Issue No. 1 was as follows: “Do you find from a preponderance of the evidence, if any, that the defendant, The Dallas Joint Stock Land Bank of Dallas, acted without probable cause, as that term is defined for you below, in filing and prosecuting the affidavits and petitions for contempt in this case?”

Special Issue No. 2 was as follows: “Do' you find from a preponderance of the evidence, if any, that the defendant, The Dallas Joint Stock Land Bank of Dallas, acted with malice as that term is defined for you below, in filing and prosecuting the affidavits and petitions for contempt in question?”

Special Issue No. 3 was as follows: “Do you find from a preponderance of the evidence, if any, that the plaintiff, Walter Britton, sustained any actual damage as a proximate result of the filing and prosecution of the affidavits and petitions for contempt which were filed against him, and his imprisonment resulting therefrom as herein defined?”

Special Issue No. 4 was as follows: “How much actual damage, if any, do you find from a preponderance of the evidence,, if any, that the plaintiff, Walter Britton,, has suffered as a direct and proximate result of the filing and prosecution of the affidavits and petitions for contempt which were filed against him and his imprisonment resulting therefrom ?”

In brief filed in the Court of Civil Appeals by plaintiff among other things we-find the following: “The question of the right of a private citizen to recover damages against a party who wilfully, maliciously and without probable cause institutes proceedings which result in his being incarcerated in jail has been a number of times before our courts.”

Counsel quote from numerous cases, most of which involve malicious prosecution. The following quotation is taken, from said'brief:

“In Gulf, C. & S. F. Ry. Co. v. James, 73 Tex. 12, 10 S.W. 744, 15 Am.St.Rep. 743. the Supreme Court held that the corporation was liable for the malicious prosecution instigated by its employes, and said opinion gives a full and complete discustion relative to said matter.
“In Daughtry v. Blanket State Bank, Tex.Civ.App., 41 S.W.2d 527, the Court holds that the corporation was liable for the acts of its officers in instituting and carrying on malicious prosecution.
“In 38 C.J. 44S, there is a general discussion of the damages that may be recovered as the result of a malicious prosecution. Such element of damages include loss of time, deprivation of liberty, and all circumstances of aggravation attending it, such as bodily pain, injury to reputation, mental suffering, general impairment of social and mercantile standing, as well as expenses incident to his having obtained his release.
“In 18 R.C.L. 71 to 76, there is also a general discussion of what it takes to constitute malicious prosecution, and what elements of damage may be considered, and on page 76 it states that the defendant's financial circumstances may be shown in connection therewith.
“In 28 Tex.Jur., beginning on page 448 and through page 464, is a full and general discussion of' the essentials of malicious prosecution and what it takes to constitute malice and the lack, or want, of probable cause.” (Emphasis supplied by us.)

Practically all of the foregoing statements are repeated in the reply to application for writ of error filed in this court.

The Court of Civil Appeals in its opinion referred several times to the case as one for malicious prosecution, and cases pertinent to such an action are cited, as well as the penal statutes pertaining to that offense.

We think therefore that it cannot even be questioned that all parties, particularly plaintiff, have proceeded from the beginning on the theory that this was a suit for malicious prosecution.

It seems to us evident that plaintiff has wholly failed to establish a case of malicious prosecution. If any action may be sustained, it is one for false imprisonment. The distinction between malicious prosecution and false imprisonment, as well as the essential elements of each offense, are stated in the following quotation from 28 Texas Jurisprudence, pages 446, 447: “There is a fundamental distinction between an action for malicious prosecution and one for false imprisonment. False imprisonment is an unlawful and unauthorized interference with the personal liberty, while malicious prosecution consists in procuring the arrest or in the prosecution of the plaintiff under lawful process on the forms of law, but from malicious motives and without probable cause. In other words, if the imprisonment was under lawful process, but the prosecution was commenced and carried on maliciously, a malicious prosecution is shown, while if the arrest or imprisonment was zvithout lawful authority, an action for false imprisonment lies.”

See particularly the case of American Motors Finance Co. v. Cleckler, Tex.Civ.App., 28 S.W.2d 274.

In the habeas corpus proceeding in the Supreme Court plaintiff was discharged because the order of contempt and the commitment were wholly void on, the ground of lack of jurisdiction over the person of Britton in the receivership proceeding. In fact, under our decisions a discharge in a habeas corpus proceeding growing out of contempt in a civil case generally rests solely upon the fact of want of jurisdiction. In our research we have been unable to find any case in any court where malicious prosecution has been sustained as a result of a contempt action. Plaintiff seems to rest his whole case upon the fact that the Supreme Court held the contempt order void. The process being void, malicious prosecution is not a remedy.

There are other reasons which might be discussed showing that the suit and judgment cannot be sustained upon the theory of malicious prosecution, but the matter is so obvious from the record that we feel it wholly unnecessary to discuss it further.

As indicated above, it is perfectly plain that as disclosed by the present pleadings, plaintiff's remedy, if any, is one for false imprisonment. We shall assume (but not decide) that the pleading was sufficient to support such an action, although there is some doubt upon that point. Thompson v. Farmers’ Exchange Bank, 333 Mo. 437, 62 S.W.2d 803. We shall also assume, for the purposes of this decision, that the evidence and findings of the jury were sufficient to establish a case of false imprisonment. Notwithstanding these assumptions we think there was error in the trial which effected the result.

Early in the trial of the case plaintiff offered in evidence, over objections by defendant, a certified copy of the opinion of the Supreme Court in Ex parte Walter Britton, reported in 127 Tex. 85, 92 S.W.2d 224. Later, plaintiff introduced a certified copy of the judgment of-the Supreme Court in that proceeding, and withdrew the certified copy of opinion. The court thereupon instructed the jury not to consider the opinion. The defendant moved the court to declare a mistrial, which motion was overruled.

The argument of counsel complained of is as follows:

“Now, Gentlemen of the Jury, what has been offered as a defense here to it? They brought the judge down here and put him on the stand with the only purpose in view of undertaking to cause you gentlemen to believe the Judge took the bull by the horns and put him, put Walter Britton in jail, and that the Bank had nothing to do with it. yVhat did he do ? He did exactly what the Dallas Joint Stock Land Bank asked him in the sworn pleading to do — to put Walter Britton in jail until he paid the rents and otherwise purged himself of contempt. That is what the Judge did, just what they asked him to do. Judge Barcus was criticized by Mr. Darden because of some reference he made to the Judge of the County of Dallas. I want to say to you, gentlemen, that tyranny in high places deserves greater admonition than the wrong of the average citizen.
“Mr. Darden: We object to that argument, Your Honor. No evidence here of any tyranny; it is inflammatory and prejudicial.
“Mr. Dunnam: The Supreme Court held he was.
“Mr. Darden: I object to that statement because the Supreme Court does not hold that the Judge is tyrannical.
“The Court: I overrule the objection. .
“Mr. Darden: Note our exception.
“Mr. Dunnam: (Continues argument.) The Court held that The Dallas Joint Stock Land Bank, that what The Dallas Joint Stock Land Bank did and what the Judge said, was unlawful, and here is a certified copy of the Judgment of that court which speaks for itself, and that Court says, because it is the opinion of the Court that the relator is deprived of his liberty he should be discharged.”'

The opinion of the Supreme Court was not admissible for any purpose, and the recitals therein were not binding upon the defendant. The judgment of the Supreme Court was admissible only for the purpose of showing that the confinement of plaintiff was illegal. A very similar question was presented in the case of Caruthers v. Hines, 290 S.W. 155, 159 by the Commission of Appeals. In that case Hines obtained an injunction against Ca-ruthers in' the District Court of Wichita County restraining the construction of a certain building. The district court adjudged Caruthers in contempt for violation of this injunction. Caruthers instituted habeas corpus proceedings in the Federal district court and was discharged. He then instituted suit against Hines for damages, on the ground that the injunction was illegal and void and constituted an unlawful interference with his property. In order to show that the injunction was invalid he alleged that in the habeas corpus proceeding same had been adjudged to be illegal and utterly null and void. A general demurrer was sustained to the petition, and this action was upheld by the Commission of Appeals., The gist of the opinion is in this language: “Recitals in a judgment cannot be looked to so as to bind parties not made parties to a suit, and .who did not appear. So we hold in this case that the recital in the judgment of the federal District Court to the effect that the proceedings in the injunction case in the District Court-were void cannot be looked to so as to bind the defendants in error who were not parties to the habeas corpus proceeding.”

We think the foregoing argument was an unauthorized comment upon the effect to be given the opinion of the Supreme Court, which the trial court had attempted to withdraw from consideration of the jury, and also upon the effect of the judgment of the trial court. Counsel had no right to tell the jury what the Supreme Court had held concerning either the judge or defendant Bank. The action of the Court in overruling the objections tended, at least, to constitute a comment by the judge upon the evidence. Lewter v. Lindley, Tex.Civ.App., 89 S.W. 784.

Without going into a lengthy discussion of the matter we further state that it is our opinion that the • argument complained of was improper, so far as the mat-. ter of damages was concerned, because it constituted an effort to penalize defendant for the alleged “tyrannical” acts of the judge of the court. While defendant may have been legally liable as a consequence of any unauthorized order of the judge, it should not be penalized because said order may have been prompted in some degree by a spirit of tyranny on the part of the judge.

For the reasons above stated, and because the case was obviously tried upon a wrong theory, the judgments of the Court of Civil Appeals and of the trial court are reversed and the cause is remanded.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    McNAULTY v. STATE.
    No. 20579.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Jan. 31, 1940.
    Gordon R. Wellborn, of Henderson, for appellant.
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

Appellant cut deceased to death with a knife at a dance which was being given by Emma Jordan. It was the state’s theory, given support in the testimony, that appellant killed deceased without provocation. It was appellant’s version, as shown in his own testimony and that of other witnesses, that he acted in self-defense.

It is shown in bill of exception No. 1 that in argument to the jury the district attorney used language as follows: “We could have put on many more witnesses that would have testified to the same facts that the witness testified to that we did not put on.” The argument was not supported by the evidence, and the court sustained appellant’s objection thereto.

Bill of exception No. 3 reflects that the district attorney, in argument, used the following language: “It had been so long since you (the defendant) had knocked anyone in the head or cut someone that you just had it in your blood and you had to get it out, didn’t you ?” These remarks had no support in the testimony, and appellant’s objection thereto was sustained.

We think the two bills of exception reflect reversible error. The first of said bills is concerned with the unsworn testimony of the district attorney that other witnesses would give testimony in support of the state’s theory that the homicide was unprovoked. The other bill was in effect a statement by the district attorney that he had information that appellant had knocked other people in the head and cut them in transactions which were separate and distinct from the transaction on trial. The remarks embraced in the bills were obviously prejudicial, and the opinion is expressed that the court’s action in attempting to withdraw them from the jury was not calculated'to' save appellant from harm. Hence we are constrained to hold that the bills of exception present reversible error.

It is shown in bill of exception No. 13 that a character witness who.had testified that appellant’s general reputation as a peaceable and law-abiding citizen was good was asked by the district attorney on cross-examination if he knew that appellant had been charged with an aggravated assault upon one Finnif. Appellant’s objection to the question was properly sustained. While the witness might have been questioned concerning rumors he had heard as to specific acts of misconduct on the part of appellant, contrary to the reputation assigned by the witness, he could not be questioned concerning his knowledge of such matters. The question carried the implication that appellant had committed the assault inquired about. It was obviously prejudicial. We think that this bill of exception reflects error.

As shown in bill of exception No. 16, a character witness testified on cross-examination by the district attorney that on one occasion he needed appellant to work for him and found that he was in jail. The objection to such question was overruled. For the reasons stated in our discussion of bill of exception No. 13 we think this bill of exception reflects error.

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.

On Motion for Rehearing.

BEAUCHAMP, Judge.

The Honorable Joe C. Gladney, District Attorney of Rusk County, has filed in behalf of the State a motion for rehearing. He has briefed the questions raised thoroughly and appeared personally and made a very forceful argument in behalf of his contentions.

The first complaint is because the court sustained Bill of Exception No. 13. This includes the question asked the character witness regarding a specific offense. The original opinion in this case deals with that question thoroughly as we view it, but it appears that the opinion is not properly understood. A definite reference is made to the rule that a character witness may be cross-examined concerning his knowledge of rumors or reputation as to specific acts of conduct but could not be asked concerning his own knowledge. Furthermore, a question is objectionable independent of the answer when a proper construction of such question results in a charge that a specific offense has been committed. The objection to the question in this case was that it implied the commission of an offense. In fact, it asserts that an aggravated assault had been committed on another party by the appellant on the 18th day of June. The question as given is nothing else than a direct charge that such a thing had been done. Alexander v. State, Tex.Cr.App., 8 S.W.2d 176, correctly states the rule with authorities, and the court declined to reverse that case because of the negative answer, but this might be done only in view of the particular facts of the case. In other words, the rule was stated that the court did not think under the facts and in view of a negative answer that the rule would apply. So it is in each and every case which may have its characteristics lifting it out of the application of the rule. Attention is here especially called to the Alexander case with the observation that it does not state the rule sought to be established in the State’s brief to the effect that whenever an improper question elicits a negative answer it becomes harmless. Some may be harmless and some may be made harmless by a negative answer, but whenever the question is so stated that it amounts to an assertion of a fact under the conditions here under discussion and it implies the commission of another offense, it may be said that its harmfulness cannot be cured by the answer and seldom by any instruction which the court is able to give the jury. In explanation of the other authorities discussed in the State’s brief, it is sufficient to say that they nowhere lay down the rule claimed by the State. Statements are made and affirmances may be had because of the particular facts of each of the cases. The rule announced in the original opinion in this case is the general rule and seems to be applicable under the record before us.

It is further insisted that the court erred in sustaining appellant’s Bill of Exception No. 2 relating to the argument' of counsel for the State'. The case of Galloway v. State, 95 Tex.Cr.R. 9, 252 S.W. 516, is discussed, and from it there is quoted in the State’s brief the following: “This court has generally held that prompt action of a trial judge, in directing the jury to disregard improper argument, would obviate a reversal, except in extreme cases where the argument injected new facts of an obviously harmful nature, or where the language was so inflammatory in character that its harmful effect could not be remedied by withdrawal.”

The exception referred to in this quotation is forcefully illustrated by the argument held to be improper in this case, which is as follows: “We could have put on many more witnesses that would have testified to the same facts that the witness testified to that we did not put on.”

The court should have instructed the jury that this was an improper argument and that they should disregard it, but the court had no power to tell the jury that the attorney asserted a falsehood. His statement was probably true but in order to avail himself of the force and effect of these additional witnesses, it is required that they be brought into the court room and the appellant given his constitutional right to be confronted by his accusers. Counsel states tha,t he has such witnesses and in effect what they would say. One juror might have argued that he had three or four and another that he had several times that number. The harmful effect of such argument on the minds of the jury cannot be measured. It may be much greater on one juror than on another, but one thing is certain, — counsel made the assertion that other witnesses would testify to the same effect as those which had been brought into the court room, and thereby sought to avail the prosecution of their testimony without such witnesses being sworn and without the appellant having a right to cross-examine them. Such an assertion could not be cured by the charge of the court.

The State’s Attorney has joined the District Attorney by filing a brief in which he asserts that the effect of this holding is that a witness might tell what he has “heard” about a defendant whose reputation has been placed in issue but cannot testify as to what he “knew” of such fact. This is exactly the rule. The appellant had placed in issue only his reputation and that cannot be combatted with testimony of specific acts of misconduct. Character is made up of the things an individual actually is and does. If character were in issue, specific acts of conduct might be proven to rebut evidence of a man’s good character. Reputation is a different thing. It is what people think an individual is and what they say about him. Only these things may be proven in rebuttal of a claim of good reputation. If the appellant could put his character in issue as well as his reputation, the field of inquiry might be broadened. Until he does the State is limited to an inquiry concerning that which is in issue. There is nothing new in this rule. The difficulty lies in the practice of using the words “character” and “reputation” interchangeably so frequently. It may be understood that when we speak of “character witnesses” we refer to reputation.

In Prater v. State, 104 Tex.Cr.R. 669, 284 S.W. 965, the doctrine has been thoroughly discussed and proper distinguishment made between character and reputation. A number of decisions of our own state are quoted from and relied on, and a discussion of the subject is made in the light of the treatment given it by Underhill on Criminal Evidence, (3d Ed.), Sec. 141, pp. 181-182. Quotations from Wigmore on Evidence are given in support of an assertion of good reasoning for the rule.

In Adaire v. State, 119 Tex.Cr.R. 381, 45 S.W.2d 984, the rule in the Prater case was re-stated and it was there held that specific acts of misconduct on the part of the accused could not be proven on cross-examination of a character witness, and the reasoning hereinabove stated is specifically announced.

In Shipley v. State, 131 Tex.Cr.R. 527, 100 S.W.2d 704, it was held that while a witness who testified as to the good reputation might be cross-examined in a manner to test his knowledge of the reputation, yet he could not be asked concerning’ facts and conduct within his own knowledge; that reputation cannot be shown by proof of specific facts and acts.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge. '

text:
    GRESSETT v. STATE.
    No. 20777.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    M. L. Bennett, of Normangee, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge. '

The offense is swindling; the punishment, a fine of $25.

-The caption fails to show when the term of court at which appellant was tried commenced. This defect requires a dismissal of the appeal.

The appeal must also be dismissed because of a defective recognizance. The copy of the recognizance embraced in the transcript fails to show that appellant has been convicted of any offense. Art. 831, C. C.P., sets out the proper forth of recognizance in misdemeanor cases when an appeal is taken to the Court of Criminal Appeals.

The appeal is dismissed.

PER CURIAM.

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


author: KRUEGER, Judge.

text:
    PAFFORD v. STATE.
    No. 20786.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Callaway & Callaway, of Brownwood, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is driving an automobile upon a public highway while intoxicated. The punishment assessed is confinement in the state penitentiary for a term of one year.

The record shows that about dark on the night of June 17, 1939, a Texas ranger, Mr. Gault, on his way from Lubbock to Austin met an automobile near Zepher in Brown County. The driver of this car drove over to the left hand side of the highway and caused the ranger to drive his car down in a pit beside the road. Gault turned around, followed the driver, overtook him,- arrested him and carried him to jail in Brownwood. Both Mr. Gault and the officers at the jail in Brownwood testified that appellant was very drunk. At his trial, appellant entered a plea of guilty and asked for a suspension of sentence. The jury found him guilty, assessed his punishment as above stated, and declined to recommend that his sentence be suspended.

Appellant has but one bill of exception in the' record in which he complains of the court’s action in overruling his motion for a new trial based on misconduct of the jury. He charged in his amended motion fo.r a new trial that during their deliberations Grady Calvin (one of the jurors) said: “I have known the defendant for several — three or four years, and he works over at Lewis Templins’ filling station and I don’t know for certain whether or not he has been bootlegging or transporting whisky.” Whereupon another member of the jury, H. C. Buhler, remarked: “Well, I know this fellow now, .and have known him ever since I put in my filling station in ■ the “Y” in the North part of Brownwood in the vicinity of where the defendant worked and that place where he worked over there all time he was in Brownwood, is a regular bootleggers hangout and run by a bunch of bootleggers.”

Upon a hearing of the motion, the jurors testified among other things that appellant had offered a number of witnesses who testified that his reputation as a law-abiding citizen in the community in which he lived was good. That on cross-examination, .these witnesses were asked if they had not heard that appellant had been transporting whisky in and about Brownwood. One of these witnesses replied that he had heard as much. .All of the other witnesses denied having heard of it.

Mr. Buhler, the foreman of the jury, denied that he made the statements attributed to him by the juror, Calvin, but admitted that such statement or one of like import was made by some member of the jury. That some member of the jury stated in the jury room during their discussion of the case as follows: “Well, if he worked over there in a bootlegging joint, they were probably all of the same stripe, and if he knew what kind of a place it was, and he was not a bootlegger he'ought to have quit.”

It is apparent from the record as a whole that some member o.r members of the jury, while they were considering their verdict, related facts to their fellow jurors that were not in evidence before them. This was improper. Sec. 7 of Art. 753 C.C.P., provides that where the jury, after having retired to deliberate upon a case, have received other testimony, • a new trial shall be granted. This court has consistently held that where this is true, the court will not ordinarily speculate upon the question of injury. See Autrey v. State, 113 Tex.Cr.R. 567, 24 S.W.2d 432; Davis v. State, 114 Tex.Cr.R. 620, 26 S.W.2d 649; Stone v. State, 116 Tex.Cr.R. 319, 31 S.W.2d 822; Durbin v. State, 117 Tex.Cr.R. 177, 36 S.W.2d 730. If the court, over appellant’s objections, had permitted the state to prove as original evidence the facts related by some of the jurors, this court would not hesitate to reverse this case on the grounds of having allowed the state to introduce improper evidence. This being true, to hold otherwise in this case would be placing a greater burden upon the appellant where illegal evidence is received by the jury after their retirement than would be imposed upon him if the evidence was introduced- in his presence on the trial. Testimony received by the jury, under the circumstances as disclosed by this record, is contrary to the constitutional provisions according to the defendant the right to be confronted by the witnesses against him. See Snow v. State, 91 Tex.Cr.R. 1, 8, 237 S.W. 563, 20 A.L.R. 1180 and authorities cited. It is true that the evidence relative to appellant’s guilt was not controverted and was sufficient to justify his conviction. However, we are not prepared to say that the information imparted by some of the jurors to their follow members did not prejudice appellant’s case, inasmuch as the jury assessed his punishment in excess of the minimum prescribed by law. See Cryer v. State, Tex.Cr.App., 128 S.W.2d 808.

For the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    HOLT v. STATE.
    No. 20772.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is robbery. The punishment assessed is confinement in the state penitentiary for a term of 5 years.

The record is before us without statement of facts or bills of 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: BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    WALKER v. STATE.
    No. 20604.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Rehearing Denied Jan. 31, 1940.

      Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for murder; punishment assessed at death.

It appears from the record that appellant killed J. J. Mayfield on the night of December 23, 1938, while attempting to rob him on a side road near a highway and while both were sitting in the car of the deceased.

The record contains a detailed confession by the appellant in which he relates his previous preparations and plans for robbing Mayfield. After the introduction of this statement, the State introduced evidence to corroborate in great detail the major portion of the things which the appellant recited, both before the commission of the offense, at the time of it and afterwards up to the time of his arrest. Among the things stated, the appellant said that he made the deceased drive to the point where the homicide occurred in Dallas County, just north of Love Field, and asked him for his money. At that time he pulled his pistol, and upon seeing it the deceased kicked up his foot and then, through fright or for some other cause, appellant accidentally discharged the pistol. This statement fully detailed by the appellant is not modified, nor is it denied by the State in any of the evidence introduced by it. It is the principal contention in this appeal that this was an exculpatory statement made by the appellant and shows that the killing was accidental and not intentional. It is contended that the indictment having charged the killing as being intentional, appellant could not have been convicted under the evidence and that the trial court should have given the special requested charge directing the jury to acquit the appellant. To this we cannot agree.

Appellant, together with two companions (Robert Currie and another), had planned the robbery of Mr.' Mayfield for several days prior to the homicide. It had been insisted by appellant that, because of the fact that Mayfield knew him and would recognize him, the other party should do the robbing and that he should be aided by the appellant and Currie who would keep at a sufficient distance so that Mayfield could not identify them. ' Under this plan it was indicated that the victim should not be murdered. However, the third party declined to go through with the robbery and have any further part in it. Currie and the appellant then reformed their plan, which was carried out according to their design, and, in doing so, Currie furnished appellant five dollars with which he purchased a second-hand pistol with a round of ammunition. Great care and caution were taken to see that the pistol would shoot. Appellant approached the undertaking with that same view that he had expressed to his deserting confederate — that he could not rob Mr. Mayfield and get away with it because Mayfield knew him. Currie and the appellant went out to the' point where it was known that Mayfield would be at a particular time and waited for him. May-field owned several filling stations and made his settlements in taking up the money with regularity. They expected him at this point at a given time. It seems that he arrived according to his usual schedule. The appellant entered Mayfield’s car and caused him to drive to the fatal spot. Appellant then asked Mayfield how much money he had to which he replied that he had but little. As Mayfield took the money out of his pocket, he seems to have discovered the gun in the hand of the appellant. Under excitement or otherwise, Mayfield kicked up his foot and this caused appellant to discharge the pistol.

The range of the bullet from the first shot is not given, but the evidence does disclose that the deceased had one wound straight across the body in the region of the abdomen. There were two other wounds which seem to have entered the body at a different angle to the one across the abdomen, but similar’to each other. These two wounds were near each other and in the upper part of the body above the heart. There is nothing in the evidence to indicate that the first shot was fatal. To the contrary, the jury might well have concluded that the first shot was the one which glazed the abdomen and was only a flesh wound and that the other shots, being from a similar direction but different to the first, were those intentionally directed at a more vital part of the body. The doctor testified that either of the upper wounds would be fatal but the lower one was not. If either was the first fired, the others would have been unnecessary. Appellant deliberated after the first shot, but the next two may have been in quick succession. This would indicate that the two fatal wounds were fired last.

The physical facts are aided by the detailed preparations which were without dispute in the case and which warranted the jury in concluding that the murder of Mayfield was intended while the preparations were being made. He knew the appellant and the appellant realized .this and stated that he would be identified by Mayfield. This, the record shows, was done. It is a reasonable conclusion that the appellant’s final plan and purpose was to rob Mayfield and do away with him so that he could not testify that appellant was the perpetrator of the crime.

Considering all the circumstances of the case, we think that this evidence was sufficient to warrant the jury in finding under the indictment that the appellant was guilty as charged. See reasoning in Shelburne v. State, 111 Tex.Cr.R. 182, 11 S.W.2d 519.

Should it be conceded that the first shot was fired accidentally and that it inflicted the fatal wound, still the appellant would not have been entitled to the instruction requested because, according to his own statement, he was voluntarily engaged at the time of the homicide in the commission of a felony, namely, robbery. If, while voluntarily committing one felony, the accused accidentally commits another felony, he is guilty of the felony he accidentally commits as though he had willingly and intentionally perpetrated the same. Art. 42, P.C. Under this article the contention of the appellant is not tenable.

Furthermore, the appellant chose his theory of the submisson of this question to the jury under the facts by his Special Requested Charges Nos. 3, 4 and 5, which the court gave and from which we quote as follows :

From Special Charge No. 3: "In this case you are charged as a part of the law of the case that if you should find and believe from the evidence, beyond a reasonable doubt that the defendant shot, and thereby killed, the said J. J. Mayfield, and in doing so he fired more than one shot; and you further find from the evidence, or have a reasonable doubt thereof, that the first shot was fired accidentally, and that thereupon the defendant became excited and not knowing what he was doing fired other shots which struck the said J. J. May-field, and that same were not fired intentionally, then same would not be a voluntary killing, and if you so find, or have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, ‘Not Guilty’.”

. From Special Charge No. 4: “In this case you are charged as a part of the law of this case that if you find from the evidence, beyond a reasonable doubt that the defendant shot and killed the said J. J. May-field as charged, but you further find from the evidence, or if you have a reasonable doubt thereof, that there were more than one shot fired, and that the first shot was accidental, and that said accidental shot was the shot that produced death, if it did, then you will acquit the defendant and say by your verdict ‘Not Guilty’ although you may further find from the evidence that after said accidental shot the defendant fired other shots that struck the said J. J. Mayfield. If you have a reasonable doubt thereof you will acquit the defendant.”

From Special Charge No. 5:

“In this case you are charged as a part of the law of the case that the indictment charges that the defendant voluntarily killed the deceased J. J. Mayfield by shooting the said J. J. Mayfield with a pistol and under such charge it devolves upon the State to prove by the evidence beyond a reasonable doubt that the defendant did voluntarily shoot and thereby kill said J. J. Mayfield. In this connection you are charged that by the term ‘voluntary’ as used in our statute means that the act must be done ‘intentionally ; not accidentally’.
“You are therefore charged that unless you find and believe from the evidence, beyond a reasonable doubt that the defendant shot and killed the said J. J. Mayfield with a pistol, and that he, at said time intentionally shot said Mayfield, and that such shooting was not accidental, you will, acquit the defendant and say by your verdict ‘Not Guilty’. If you have a reasonable doubt whether same was intentionally done and was not accidental, you will give the defendant the benefit of such doubt and acquit the defendant.”

While we do not agree that appellant was entitled to the foregoing requested charges under the facts of this case, they nevertheless present his theory to the jury in a very fair manner, and they have passed on it adversely to his contention. Undoubtedly, this concludes that issue against him.

By Bill of Exception No. 3, appellant objects to the following testimony given by Bill Becker, the deputy sheriff to whom his voluntary confession was made: “I put him in the Dallas County jail. Yes, sir, I had a conversation with him with reference to this matter. Before he made the statement we discussed the case with him and he said he would like to tell the truth about it; and to get a typewriter and stenographer and let’s get it taken; that it was going to cause him more trouble than anyone else.”

The bill presenting this objection is qualified by the court who states that it was introduced at various times without any objection from the appellant. With this qualification, there is no force to the bill. See Art. 667, C.C.P.; Fisher v. State, 108 Tex.Cr.R. 332, 1 S.W.2d 301, 302, and authorities there cited.

It was proper for the State to introduce this evidence as a predicate to prove facts showing that the statement was voluntarily made. The willingness of the appellant to make a confession and his realization of the effect that the confession would have on him were important in determining that it was a free, full, fair and voluntary statement. Furthermore, in view of the statement made, it would be difficult to understand how any injury was added to that statement by reason of the preliminary remark of the appellant that “it was going to cause him more trouble than anyone else.”

Appellant received the extreme penalty. His trial before the jury, according to the record before us, was cautiously and carefully conducted. He was ably represented by counsel. There is nothing before this court which shows any irregularity in the trial of the case. We have no jurisdiction to give further consideration to the case than that herein given.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In .his motion for rehearing appellant insists that we were in error in holding that the evidence adduced upon the trial was sufficient to show the falsity of the alleged exculpatory statements of appellant embraced in his confession and introduced by the state. If the statement was exculpatory the state was bound by it unless it was shown by the evidence to be untrue.

In referring to testimony that may be looked to by the jury in passing upon the question of the truth of exculpatory statements of the accused which are introduced in evidence by the state, this court, in Nichols v. State, 110 Tex.Cr.R. 432, 10 S.W.2d 109, 111, used language as follows: “However, the inference of untruth may be drawn by the jury, from all the evidence, including any inconsistencies in the statement itself or in the statements as compared with other evidence adduced upon the trial which is regarded by the jury as true.” Looking to the alleged exculpatory statement in the light of the foregoing announcement, we think the jury were warranted in concluding that it was untrue.

In view of the fact that the court gave a charge relative to accidental homicide, we leave undecided the question whether Art. 42, P.C., is applicable to the present situation.

The motion for rehearing is overruled.

PER CURIAM.

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