author: GRAVES, Judge.

text:
    MOWERY v. STATE.
    No. 21349.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1941.
    Jos. H. Aynesworth and H. M. Hood, both of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of rape, and by the jury assessed a penalty of five years in the penitentiary.

The facts show that two young ladies, one seventeen years of age and the other eighteen years of age, on Hallowe’en night, were walking on the streets of Pampa. Two men, strangers to them, passed them in a car and waved at them. The girls did not answer them. These men turned around and came back, and, after some conversation, the girls got in the car with these men and drove around town, eventually going to a dance hall, and finally leaving town on a road towards Borger. When near a town called Skiatex, out on a country road, appellant and his brother told the girls they wanted to show them something, and appellant’s brother told one of the girls to get out of the car. This the girl refused to do, when the brother said: “By God, I can make you.” The girl replied: “You might make me, but I’m not getting out of the car.” Whereupon the brother of appellant struck the girl, and slapped her and grabbed her by the neck and dragged her out of the car and through the weeds, and out of sight of the other occupants of the car. Appellant remained in the car with the other girl, and then tried “to get hold of” the girl who was in the car, who at'first refused him, but when threatened by appellant to treat her as his brother had treated her companion, the girl prepared herself for the' act, and had two acts of intercourse with appellant while lying down on the back seat of the car. While these acts were being committed, the brother and his girl companion were out of sight of the two in the car. The girl that appellant had in the car was seventeen years of age, and according to a physician’s testimony, was a virgin at such time. The girls finally got back in the car, and when they got to town they phoned the police, and sometime during the night or early morning the brothers were arrested, and appellant was charged with rape, based upon the age of the girl with whom he had the two acts of intercourse.

We find thirty-one bills of exceptions in the record, many of which might be troublesome, but we find ourselves confronted with one bill that we think demands a reversal of this case.

Bill of exceptions No. 8 reads in part as follows:

“Be it remembered, that upon the trial of the above entitled and numbered cause, wherein the State of Texas is plaintiff and the defendant, W. N. (Dutch) Mowery is appellant herein, that the defendant stands indicted for the charge of ‘rape’ upon a female not his wife and under the age of 18 years, and to which charge the defendant plead ‘not guilty’, and further that the defendant did not testify in said cause or take the stand in behalf of himself and that the only evidence as against the defendant was testified to by the prosecuting witness, Lorene Wallin, now Mrs. T. D. Sharp; that after she and the defendant and R. C. Mowery, brother of the defendant, and Edna Earl Ayres had arrived at near Skia Tex Camp, that R. C. Mowery induced Edna Earl Ayres to leave said car or forcibly ejected her from said car and went off some 40 or 50 yards a-nd were gone some 20 or 30 minutes, and' that while R. C. Mowery and Edna Earl Ayres were gone the prosecuting witness, Lorene Wallin and the defendant' had intercourse, possibly two times while she was sitting on the back seat of the automobile; she having made preparation for said act by taking off her ‘undies’ and putting one leg upon the back of the front seat and the other out of the car window; that no one saw her and him in the act; that she had told defendant upon his request for the act of intercourse that she was not ‘that kind of a girl’ and he threatened her and she let him perform the act of intercourse with her on account of fear; that no one was present at any time during the act; that there is no testimony from any witness in the case as to the actual fact of intercourse except as above stated, the defendant not having taken the stand in his own behalf.
“And be it remembered while the Honorable District Attorney was making his closing address to the jury, he stated to the jury;
* * It is not shown in this record in this case anywhere a contradiction as to her age; it is not shown in this record anywhere a contradiction as to the commission of the act; it is not shown in this record anywhere a contradiction that she was not the wife of the defendant.’
“And be it further remembered that said remarks of the District Attorney were not brought about or induced by any argument or act of the defense attorneys in their address to the jury; that said argument was not provoked by defense counsel in reply to any argument made by defense counsel.”

The objectionable portion of such argument, so we think, was the phrase “it is not shown in this record anywhere a contradiction as to the commission of the act,” and this objection is emphasized.and made certain by the statement in the bill wherein it is said “that no one saw her and him in the act.” This leaves no one to be able to contradict her testimony, in regard to such acts of intercourse, save the appellant, and leaves us with a clear-cut allusion to the appellant’s failure to testify,, and a violation of the mandatory provisions of Art. 710, C.C.P.

In the Sweet case, Sweet v. State, 114 Tex.Cr.R. 341, 342, 23 S.W.2d 370, we-reversed the same because of the following remarks: “ ‘Those are the facts before-you, gentlemen of the jury, and they are not disputed. There is no denial of any kind.’” See Pirtle v. State, 110 Tex.Cr.R. 395, 10 S.W.2d 564, and cases there cited.

The statute, Art. 710, C.C.P., has-been construed to have been violated when it is apparent that no one but appellant was-in a position to make certain denials, or to-give certain testimony, and the failure of such testimony to appear in the case is commented upon by the State’s attorney, in; the presence of the fact that the appellant was not placed upon the witness stand, such a comment is necessarily one upon the defendant’s failure to testify, and such comment will work' a reversal of the case. See Traylor v. State, 111 Tex.Cr.R. 58, 11 S.W.2d 318; Singleton v. State, 93 Tex.Cr.R. 109, 245 S.W. 922; Boles v. State, 105 Tex.Cr.R. 224, 288 S.W. 198; Boles v. State, 109 Tex.Cr.R. 471, 5 S.W.2d 509; York v. State, 126 Tex.Cr.R. 659, 73 S.W.2d 538, as well as numerous other authorities found in the annotations under Art. 710, Vernon’s C.C.P., note 30, Pocket Edition.

It is to be regretted that in the enthusiasm of the trial, in a case as well proven as this one, the State’s attorney allows himself to infringe on the provisions of Art. 710, supra, to such an extent that its-mandatory provisions demand of this court a reversal of the judgment, yet we can do-no less under the plain decisions of this-court, which are so numerous.

We think that the matters complained of in bills Nos. 11 and 12, as long as all four of the parties remained together at or in the car, were res gestae, and the acts of all parties at such time were-admissible, and of course all the transaction between the complaining witness and appellant was admissible, as well as her prompt outcry.

It • would be a useless consumption of time and space to attempt to write seriatim on the large number of bills found in this record. Suffice it to say, we find the major portion thereof will doubtless not again occur upon another trial, and we have indicated above those that will doubtless again occur, in which we find no error.

On account of the remark found in bill No. 8, which necessarily referred to the failure of appellant, to testify, this judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: GRAVES, Judge. HAWKINS, Presiding Judge.

license: Public Domain

text:
    AUSTIN v. STATE.
    No. 20951.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Rehearing Denied Jan. 29, 1941.
    McCartney, McCartney & Johnson, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the Staté.
   GRAVES, Judge.

The original opinion herein handed down April 17, 1940, is withdrawn and the following substituted therefor:

Appellant was convicted of the possession of an illicit beverage, to wit, liquor to which container there was not affixed a stamp showing that the tax due the State thereon had been paid.

The statute evidencing the criminality of such act under the law is found in the Acts of 1935, 2d Called Sess., c. 467, Sec. 43 of what is termed Art. 666 of the Penal Code, Vernon’s Annotated. We find, however, that such section of Art. 666 was repealed by the passage of H. B. No. 5, Chapter 448, of the Acts of the Regular Session of the 45th Legislature, 1937, and in order to find a denunciation of the possession of unstamped liquor we'are relegated to the definition of an “illicit beverage” in the following terms: “ ‘Illicit Beverage’ shall mean and. refer to any alcoholic beverage manufactured, distributed, bought, sold, bottled, rectified, blended, treated, fortified, mixed, processed, warehoused, stored, possessed, imported, or transported in violation of this Act, or on which any tax imposed by the laws of this State has not been paid and the tax stamp affixed thereto,” same being found in Section 3-a of such act, Vernon’s Ann.P.C. art. 666—3a.

We then find in Section 41 of such act Vernon’s Ann.P.C. art. 666—41, the puni-tory clause relative to the possession of such illicit beverage.

Under the facts of this case we think the jury were warranted in failing to give credence to the appellant’s defense offered relative to the loss of the stamps on these bottles of whisky after they were said to have been purchased by him, especially in view of his conduct at the time the officers searched his place of business.

Appellant cites us to the Hays v. State case, 132 Tex.Cr.R. 165, 103 S.W.2d 374, which is a case strikingly in point in both facts and law, and from an observation of the court’s special charge No. 1, it was evidently followed by this trial court. We do observe, however, that such charge, which was thought to be necessary in the Hays case, supra, and which was given in this cause also, was based on Sec. 43 of the liquor laws of 1935, and we further observe that under such an interpretation thereof the legislature, at the ensuing session, saw fit to repeal Section 43 in its entirety, thus relegating this alleged violation to Section 3-a of the 1937 act.

It is contended by appellant, and rightly so, we think, that the repeal of Section 43, and the slight change in Sections 3-a, as first quoted herein, evidenced a tendency of the legislature to relax the provisions of the law to some extent so that the evidence of a single payment of the tax and the affixing of a tax stamp would satisfy the requirements of the statute.

Complaint is also made of certain remarks of the county attorney in his address to the jury. Without setting forth such remarks, we are of the opinion that if error there was, which we do not say, the prompt instruction of the court to the jury to disregard the same rendered such error, if any, harmless. Such remarks thus complained of were mainly matters of common knowledge, and partly matters of statutory enactment, and could not have seriously affected a jury, especially in view of the court’s prompt instruction.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that his bill of exception No. 4 presents error for which the judgment should be reversed.

Said bill complains of a portion of the testimony given by the witness Pelphrey who was an inspector for the Liquor Control Board of the State of Texas. In order to properly appraise the bill in question it is necessary to state that the three bottles of whisky found in appellant’s possession did not have upon them the stamp tax evidencing payment of the tax due the State. It was appellant’s contention that said stamps were on the bottles when he bought them and he did not know how they were removed. Mr. Smith, a deputy constable, was with Mr. Pelphrey when they took from appellant the bottles in question. Mr. Smith was the first State’s witness who testified on direct examination regarding the stamps only to the fact that the stamps oni the three bottles seemed to have been mutilated. On cross-examination counsel for appellant elicited from Mr. Smith the following evidence: “The little stamps on the bottles seem to be stuck on. The stamps do' not rub off in ordinary use. I am quite sure of that. The stamps appear to be somewhat defaced on all three of the bottles; destroyed. There has been something stuck on the bottles, but I do not know what it is. There has been something stuck on, but I do not know when it was taken off. I do not know whether or not the tax was ever paid on that whisky. .1 have no way of knowing.”

On direct examination Mr. Pelphrey testified regarding the stamps only as follows : “I have examined these bottles. I have not found any tax stamps on them in payment to the State * * *. There is-no tax stamp on any of the three bottles.”-

On cross-examinatipn counsel for appellant elicited the following: “There is evidence of a tax having been paid on the whisky. I could not swear that the tax has not been paid or that the tax has been paid. The stamps that are placed on there are paper stamps. The stamp tax is-stamped on the bottle if the tax has been paid. It is placed on there with glue; it will stick. You moisten it and then stick it on. It appears that something has been stuck on the top of this bottle.”

On redirect examination by the State Mr. Pelphrey testified: “The only way I know that the stamp can be taken off is to be scraped off — they won’t slip off. * * * I am acquainted with the kind of a stamp tax that was being- put on bottles last year, or last summer. Those stamps come in sheets and are dampened. You push that stamp off of this dampened paper and it is on there. Two or three minutes after, any time you try to remove a portion of that, it destroys it complete. In other words, it becomes a part of the bottle. * * * The stamp is as permanent as they know how to get manufactured. There is such a tax required by law on those bottles now. There was no tax stamp on them at the time they were taken.”

The complaint of appellant as shown by bill of exception No. 4 is to that part of Pelphrey’s testimony given on redirect examination, the pertinent objections urged being that said evidence reflected the opinion and conclusion of the witness, and was an invasion of the province of the jury: “* * * ⅛ that it allowed the witness for the State to pass upon and determine the vital issue of this cause, in that his testimony was to the effect that had said stamps ever been placed on said containers, they could not have been removed, or that they would not have come off, as defendant contended, namely that they came off - some time between the time of the purchase and the time of the finding of same in his possession.”

Appellant urges error in admitting the evidence complained of upon the proposition that a witness should not be permitted to give his opinión upon the very issue the jury are impaneled to try, and upon matters about which the jurors are as well •qualified to speak as the witness.

Supporting his proposition appellant cites us to a number of cases, among them being Davis v. State, 114 Tex.Cr.R. 72, 24 S.W.2d 417; Langford v. State, 124 Tex.Cr.R. 473, 63 S.W.2d 1027; McCullers v. State, 125 Tex.Cr.R. 357, 67 S.W.2d 879; Maroney v. State, 115 Tex.Cr.R. 298, 29 S.W.2d 772; Hill v. State, 134 Tex.Cr.R. 163, 114 S.W.2d 1180; Boles v. State, 108 Tex.Cr.R. 204, 299 S.W. 407. It will lie found that in each of the cases named witnesses were permitted over objection to express their opinion as to the relative position of parties at the time of the difficulty, or that wounds could not have been sustained in a certain way. Allen v. State, 118 Tex.Cr.R. 120, 42 S.W.2d 602, and Funderburk v. State, Tex.Cr.App., 64 S.W. 1059, also cited by appellant, are examples of a clear violation of the principle invoked by appellant which we apply in a proper case, as evidenced in the instances referred to.

We are not inclined to the view that the principle was violated in the present case. The question for the jury was whether stamps evidencing payment of the tax due the' State were on the bottles of whisky when appellant bought them. That some character of stamps had been on the bottles is shown by the evidence heretofore related. It is shown with equal sureness that no State tax stamp was on the bottles when-they were taken from appellant. If they had ever been on them and had come off would depend largely on the character of stamp used by the State to evidence payment of the tax. If the jurors knew as much about that as the witness Pelphrey, then his evidence might have come within the principle invoked; if not, they were entitled to hear Pelphrey’s description of the stamps — with which he was acquainted —and also to be advised as to the facts known to the witness regarding them in order that the jury might intelligently pass upon the question submitted. It will be observed from the evidence heretofore related that appellant seems to have started the inquiry about the State tax stamp and its “staying qualities.”

Under the circumstances here present we think appellant’s bill of exception No. 4 presents no error.

We deem it unnecessary to write further upon other questions suggested in the motion for rehearing.

The motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    PATTERSON v. STATE.
    No. 21362.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1941.
    Mahan & Broughton, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is receiving and concealing stolen property over the value of $50. The punishment assessed is confinement in the state penitentiary for two years.

Appellant and Maurine Snow Morgan were jointly indicted by the Grand Jury at the January Term, 1940, of the District Court of Childress County, for the offense of theft of property over the value of $50 and of receiving and concealing said property.

The indictment contained three counts. The first charged appellant and Maurine Snow Morgan with the theft of the property; the second count charged them with fraudulently receiving said property from some person to the grand jurors unknown, and the third count charged them with fraudulently receiving said property from Charlie Morgan.

When the case was called for trial at the June Term of said court, a severance was had and appellant alone was placed on trial. He pleaded not guilty to the indictment and filed an application for a suspension of sentence in the event of his conviction. The court withdrew the first and second counts from the jury and submittéd the case to them on the third count in the indictment which charged appellant with fraudulently receiving the alleged stolen property from Charlie Morgan.

Appellant’s first contention is that the evidence is wholly insufficient to justify his conviction for receiving and concealing the alleged stolen property from Charlie Morgan. The record discloses that on the night ,of January 12, 1940, Dr. E. W. Jones went in his automobile from the town of Wellington to Childress in Childress County, Texas, for the purpose of attending a meeting of the Three-County Medical Association. He parked his car against the curb in front of a residence west from the Childress Hotel and then went to the meeting. When he left the car, he left therein what he denominated a “medical kit” which contained a stethoscope, a blood-pressure gauge, two hypodermic cases and a leather medicine case containing drugs, the total value of which exceeded $50. Upon his return to the car about two hours later, he discovered that his kit, including the instruments, leather case and drugs, was gone. A few days later the appellant and Maurine Snow Morgan were seen by Mr. Haddox at a travel-bureau station in San Antonio, Texas, in possession of the kit containing all the instruments heretofore mentioned. When questioned as to how they obtained the kit, appellant said that they found it on the road near Hobbs, New Mexico. Appellant and his companion, Maurine Snow Morgan, were then arrested and taken to Childress, Texas, where he made a voluntary confession to the County Attorney, after being duly warned as provided by law.

In his confession, appellant stated that on the night in question he was in the town of Childress; that he, in company with Charlie Morgan and Maurine Snow Morgan, went riding in his (appellant’s) automobile; that after they passed the hotel a very short distance, Morgan told him to stop, which he did; that Morgan got out of the car, went to a parked automobile, got a bag out of it, came back and placed it in the appellant’s car; that .they then drove out west of town, where Morgan opened the bag, saw what was in it and threw something out; that a little later, when they came back to town, Morgan said that he wanted to steal something more, but appellant persuaded him not to do so.

Appellant did not testify or offer any affirmative defense. However, he placed some of his relatives and friends upon the witness stand and proved by them that he had never theretofore been convicted of a felony either in this or in any other state.

Appellant’s main contention is that although the testimony may be sufficient to have justified his conviction of theft of the alleged stolen property, yet it is wholly insufficient to sustain his conviction for receiving and concealing the stolen property which he is alleged to have received from' Charlie Morgan. We think there is some merit in the appellant’s contention. The fact that the property was stolen from Dr. Jones’ automobile on the night in question and that appellant was subsequently found in possession thereof would be sufficient to justify his conviction for theft but would not justify his conviction for receiving and concealing the alleged stolen property from Charlie Morgan. There is no testimony outside of the appellant’s confession alone which shows that Charlie Morgan stole the property and that appellant received it from him. There is no testimony from any source that Charlie Morgan, the alleged thief, was in the town of Childress on the night in question. It is a well-settled rule in this state that a person cannot be convicted upon an extra-judicial confession standing alone. It must be corroborated by other evidence showing the substantive facts of the crime. See Art. 727, note 19, Vernon’s Ann.Tex.C.C.P., Vol. 2, p. 833; also Lott v. State, 60 Tex.Cr.R. 162, 131 S.W. 553; Mills v. State, 123 Tex.Cr.R. 395, 59 S.W.2d 147; Hunter v. State, 128 Tex.Cr.R. 191, 79 S.W.2d 855; Kulberth v. State, 95 Tex.Cr.R. 462, 254 S.W. 985; Jacks v. State, 133 Tex.Cr.R. 242, 109 S.W.2d 762; Livingston v. State, 133 Tex.Cr.R. 437, 112 S.W.2d 190; Richardson v. State, 90 Tex.Cr.R. 353, 235 S.W. 578; Daugherty v. State, 78 Tex.Cr.R. 535, 182 S.W. 306; McGregor v. State, 121 Tex.Cr.R. 419, 49 S.W.2d 818, and cas es cited. We have carefully searched the record in an endeavor to find some testimony outside of the extra-judicial confession of the appellant which would tend to show that Morgan stole the property in question and that appellant received it from him, but we have been unable to find any evidence to sustain such allegation in the indictment. The fact that appellant was found in possession of recently stolen property would be a circumstance tending to show that he committed a theft, but would not be a circumstance showing that he received it from Charlie Morgan, the alleged thief.

Appellant also raised some questions as to misconduct of the jury, but inasmuch as that issue will most likely not arise upon another trial, we deem it unnecessary to discuss the same.

Believing that the testimony disclosed by the record in this case is insufficient to sustain the appellant’s conviction for receiving and concealing the alleged stolen property, the judgment of the trial court will be reversed and the cause remanded.

PER CURIAM.

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


author: GRAVES, Judge. KRUEGER, Judge.

text:
    DAVIS v. STATE.
    No. 21279.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    On Motion to Reinstate Appeal Jan. 22, 1941.

      Aubrey Robison, of Naples, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the charge of an assault to murder, and given a term of two years in the penitentiary.

The record is incomplete in that we find no judgment therein, and no sentence. It is also noted that notice of appeal does not appear to .have been entered in the minutes of the trial court.

We therefore find ourselves without jurisdiction. See Branch’s P.C., p. 338, also p. 302, and cases cited.

The appeal is dismissed.

On Motion to Reinstate Appeal.

KRUEGER, Judge.

At a former day of this term we dismissed the appeal by reason of a defective record. The record has now been perfected. The appeal will be reinstated and the case considered on its merits.

Appellant challenges the sufficiency of the evidence to show an intent on his part to commit the offense of murder. The testimony adduced by the State, briefly stated, shows that between sunset and dark on the 8th day of March, 1939, appellant secreted himself under a shed to his barn, and when Henry Coleman drove up with a load of fire-wood in a truck and while in the act of unloading the' same, appellant fired upon him three times with buckshot at a distance of approximately thirty feet. Fortunately for Coleman, the roof of the shed was very low and appellant, in order to' shoot Coleman in his position on the truck, had to elevate his gun to a degree that the shots struck and went through the lower edge of the roof to the shed.

There were two theories presented by the evidence for the assault. The State’s theory was that appellant was laboring under the impression that Coleman had reported to the officers that he (appellant) was operating an illicit still which resulted in his arrest. Appellant’s theory was that Coleman was entirely too familiar with his (appellant’s) wife; that he was meeting her out at various places and calling on her in appellant’s absence and having improper relations with her which led to a separation of appellant and his wife.

By bill of exception No. 1 appellant complains of the action of the trial court in overruling' his third application for a continuance based on two grounds: First, that his attorney, Aubrey Robison, had been appointed on March 1, 1940, to the office of County Attorney and was disqualified to further represent him. The case was set for trial during the third week of the month of March, which was three weeks after Robison had been appointed and qualified as County Attorney. Nevertheless, the court granted him a postponement until April 15th in order to give appellant time to obtain other counsel. It is evident from the record that appellant was represented at his trial by able counsel who protected him in all of his legal rights.

The second ground in his application for the continuance is based on the absence of Lucille Hughes who resided in Hale County. It is alleged that an attachment was issued for the witness addressed to the Sheriff of Hale County, but it is not shown what became of the attachment, whether it was forwarded to the sheriff of said county or pigeon-holed. Consequently, the showing made in the application is deficient. In support of what we have said we refer to the following authorities: Tex. Jur. Vol. 9, p. 828, § 136; also Marshall v. State, 82 Tex.Cr.R. 623, 200 S.W. 836, and other cases cited in note 2 of the section mentioned. See also Bonner v. State, 129 Tex.Cr.R. 597, 90 S.W.2d 250, 251, and cases there cited.

By bill of exception No. 2 appellant complains of the testimony given by Ben Garrett, Sheriff of Morris County, to the effect that appellant, on several occasions, inquired of him (the witness) as to who reported him (appellant) to the Federal officers for making illicit whisky, which resulted in his arrest; that appellant accused Coleman (the injured party) of having reported him. The sheriff told him that he did not see why he (appellant) accused Coleman of it. We think that this testimony was admissible to show motive and malice on the part of the appellant when he shot Coleman. Appellant was not under arrest when he made the inquiry of the sheriff and accused Coleman of having reported him. In support of what we have said here we refer to the following cases: Kunde v. State, 22 Tex.App. 65 (in fact 95), 3 S.W. 325; Du Bose v. State, 13 Tex.App. 418; Barkman v. State, 41 Tex.Cr.R. 105, 52 S.W. 73. Moreover, Miss Fay Davis testified without objection to substantially the same fact. Consequently, under the rule announced by this court in the following cases, no error is shown: Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818; Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972, and cases there cited.

Bill of exception No. 3 shows that after all the 'witnesses for both the State and the defendant, including the defendant’s wife, were placed under the rule, she was permitted, over his objection, to violate the rule, come into the court room, sit beside the District Attorney; prompt him in questioning the witnesses and assist in the prosecution. The court further certified that she did not testify in the case but that her appearance and assistance rendered in behalf of the State and against the defendant was designed to influence the jury in rendering a verdict against the defendant. Appellant objected to the procedure on the ground “that it was prejudicial, calculated to influence the jury against him, and was equivalent to her taking the witness-stand and testifying against the defendant.” Article 714, C.C.P., reads as follows:

“Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation existed, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial. The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.”

In the present case, it was appellant’s contention that he intended to kill Coleman because he was too intimate with his (appellant’s) wife. Some testimony was offered by him which strongly tended to support his theory and also tended to cast reflection upon her chastity. Consequently, when she was permitted to violate the rule and sit beside the District Attorney, prompt him and suggest to him questions to be propounded to the witnesses who were testifying for appellant, it was calculated to impress the jury with the idea that she disputed the testimony which reflected upon her character as a virtuous woman. The State was thus permitted to do indirectly that which it was inhibited by the statute from doing directly. She might as well have taken the witness-stand at the instance of the State and denied any illicit relations with the assaulted party which would have justified the jury in concluding that appellant’s theory was a fabrication. Whatever her conduct and promptings may have been in the presence of the jury, they could not have been otherwise than harmful to the appellant, and the trial court so certified.

Bill of exception No. 4 complains of the action of the court in declining to submit appellant’s special requested instruction to the jury to acquit him. The substance of the evidence as hereinabove stated was sufficiently strong against appellant- to require the court to submit the issue of appellant’s guilt to the jury and their verdict finds ample support in the evidence.

For the error herein pointed out, the judgment is reversed and the cause remanded.

PER CURIAM.

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


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    PIERATT v. STATE.
    No. 21313.
    Court of Criminal Appeals of Texas.
    Dec. 18, 1940.
    Rehearing Denied Jan. 29, 1941.

      C. C. Jopling, of La Grange, for appellant.
    John C. Marburger, Co. Atty., of La Grange, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is knowingly receiving stolen property under the value of $50. The punishment assessed is a fine of $50.

Appellant first complains of the action of the trial court in overruling his motion to quash the indictment on the ground that it was not charged therein whether the alleged value of the stolen property was the wholesale or retail price. The total value of the property stolen was alleged to be $7.21. This was sufficient to admit proof of its market value at the time and place of the taking. The State was not required to plead its evidence. The market value of the stolen property was a matter of proof according to the well-established rules of evidence. We therefore overrule this contention.

Bill of Exception No. 2 was disallowed by the trial court on the ground that no objection was made to the testimony at the time it was offered. Consequently we are not authorized to consider the same.

By Bills of Exception Nos. 3 and 4 appellant complains of the court’s action in declining to instruct the jury to return a verdict of not guilty. His contention was then and is now that the evidence is insufficient to justify and sustain a conviction. We are not in accord with his contention. The State’s testimony shows that on the day in question two negro boys, who admitted stealing the grease cups, faucets and pipes from two cotton gins located in the town of La Grange, borrowed some wrenches and towsacks from appellant, and later in the day they returned to appellant’s place of business with the stolen property in ,the sacks and sold it to him at 2½ cents per pound; that when they brought it to appellant’s place of business it had some iron and wood handles oh it, and the oil or grease cups were glass bulbs encased in brass ; that he. (appellant) requested them to break these cups. The character of the property itself showed that it was taken from some machinery, the kind and character of which the negro boys would not be likely to own or possess.

It was shown by the testimony of the sheriff that when the theft of the property was reported to him he went immediately to the appellant and inquired of him if he had purchased some brass faucets and cups. He denied that he had purchased any such property. The sheriff then located the negro boys and questioned them. They admitted that they had stolen the property and sold it to appellant. The sheriff then went back to appellant and again inquired of him if he had not purchased from certain named negro boys the property described. He at first denied it saying that he did not know the negroes, but after the sheriff had given him a .description of the negro boys he then admitted that he had purchased such property from them.

At his trial the defendant took the witness stand and admitted that he purchased the alleged stolen property from the negro boys but denied that he knew it was stolen property or that he concealed it. He admitted that he bought it at 2½ cents per pound and sold it at 4 or 4½ cents per pound. That appellant bought the property in question is not controverted; that he paid 2½ cents per pound and sold it for 4 cents per pound is not controverted. Consequently the only controverted issues are: First, did he know or have good reason to believe, at the time that he purchased the property, that it was stolen, and, second, did he conceal it? That he concealed it is in our opinion shown by the fact that when the negro boys brought the property to him he demanded that they break it up. This was changing the appearance of the property so that the owners would not likely be able to recognize it when they saw it, which in effect was tantamount to concealment. Whenever stolen property is changed so that its owners would not likely recognize it if they saw it, this is deemed to be a concealment. See Tex.Jur. Vol. 36, p. 343, § IS, and cases cited in notes.

With reference to the issue of knowingly receiving stolen property, we think that the facts and circumstances proven, as herein-above set out, are sufficient to justify the jury’s conclusion that appellant knew that it was stolen property.

Bills of Exception Nos. 5 and 6 have been carefully considered by us and are deemed to be without merit.

Bill of Exception No. 7 reflects the following occurrence: The court prepared his charge in which he gave to the jury two forms of a verdict which they might use as a guide in writing their verdict according to their finding. The form to be used by them in case they found him guilty contained a blank space in which to insert the amount of fine. The other was a form of a verdict to be followed in case they found him not guilty. This charge was submitted to appellant and his attorneys before it was read to the jury. No objection was urged to that part of the charge containing the forms of a verdict. After appellant had made such objections to the main part of the charge as he deemed proper, the court then read the charge to the jury, and at the conclusion of the arguments the charge was delivered to the jurors who took it with them to the jury room where, after some discussion of the case, they wrote their verdict upon a separate slip of paper and returned it into court together with the charge. Some four days later it was discovered that the figures $50 were written with a pen and ink in the blank space of the form of the verdict. The County Attorney then filed a motion asking the court to strike the figures “$50.00” from the blank form of the verdict incorporated in -the court’s main charge, or to file his finding of fact showing how it came to be therein. Appellant admits that the figures “$50.00” were not in the form of a verdict of the court’s charge at the time the court submitted the charge to his (appellant’s) attorneys for examination; nor did the court, in reading the charge to the jury, mention the fact that the figures “$50.00” appeared in the form of the verdict incorporated in the court’s main charge. Consequently the court was justified in concluding that the jury, in their retirement, inserted the figures “$50.00” in the blank space of the form of the verdict and later wrote the verdict upon a separate sheet of paper and returned it together with the charge into court. If the jury inserted the figures “$50.00” in the blank form of the verdict, then no injury resulted to appellant, and if some other person wrote the figures. “$50.00” in the blank form of the verdict after the jury had returned their verdict into court, it certainly could not have had any influence upon the jury in assessing the appellant’s punishment at that sum because they had already completed their labors. We therefore overrule his contention.

Appellant next contends that the verdict of the jury which reads as follows: “We, the jury, find the defendant guilty as charged in the indictment of receiving property of the value of less than $5 and assess his punishment at $50.00,” is too uncertain and indefinite upon which the court could legally base a judgment. We are not favorably impressed with his contention. The jury said, “We, the jury, find the defendant guilty as charged in the indictment.” Consequently, by referring to the allegations in the indictment, the same are made a part of the verdict as much so as if the jury had expressly incorporated the charging part of the indictment in their verdict. See Onderdonck v. State, Tex.Cr.App., 139 S.W.2d 589, and cases there cited.

From the opinion of Judge Ramsey in the case of Bryant v. State, 54 Tex.Cr.R. 65, 111 S.W. 1009, 1010, we take the following quotation: “We approve the holding of this court, not infrequently made, that verdicts are to have a reasonable intendment and construction, and are not to be avoided, unless from necessity originating from doubt of their import or immateriality of the issue found, or their manifest tendency to work injustice, or their failure to contain that which some express provision of the statute requires they should contain.”

Appellant contends that the court committed reversible error in declining, at the conclusion of the evidence, to sustain his motion for an instruction to the jury to return a verdict of not guilty inasmuch as the State had failed to corroborate the testimony of the negro boys to the effect that they sold the property in question to appellant. If appellant felt that his contention was well founded he should have declined to have offered any evidence, hut when he went on the witness stand and testified that he purchased the property in question, he aided the State by supplying the necessary evidence which closed the gap in the State’s case.

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

PER CURIAM.

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

On Rehearing.

HAWKINS, Presiding Judge.

Appellant again urges that the evidence fails to show his guilt. Further consideration of the facts does not change the conclusion announced originally upon such contention.

In our original opinion the following expression was used: "Did he [appellant] know or have good reason to believe, at the time that he purchased the property, that it was stolen?”

Appellant says in his motion for rehearing that by reason of the expression quoted he construes the opinion to announce that if appellant had good reason to believe that the property was stolen it would justify a conviction of receiving property knowing it was stolen. The case was neither tried nor submitted to the jury upon such a theory, nor was it intended to be decided by us on such theory. The trial court specifically instructed the jury that before a conviction could result they must find beyond a reasonable doubt two things: “(a) that the property alleged to have been stolen was acquired by theft by some other person; (b) that the defendant knowing it to have been so acquired, fraudulently received the same. •If any one of these essential elements is wanting, the defendant can not be convicted and is entitled to be acquitted.”

In applying the law the court required the jury to find that appellant “knew that said property was acquired by theft” at the time he received it.

In our original opinion we said: “We think that the facts and circumstances proven, as hereinabove set out, are sufficient to justify the jury’s conclusion that appellant knew that it was stolen property.” Such is the holding upon which the judgment of affirmance rests. We remain of the opinion that the facts support the judgment and justify the affirmance.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    DABNEY v. STATE.
    No. 21332.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Rehearing Denied Jan'. 29, 1941.

      Jimmie Cunningham, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of Young County on a charge of violating the local option law and assessed a penalty of $100, from which he appeals.

The evidence shows that appellant was clerk in a drug store known as Miller Drug Store No. 3; that he was a regular pharmacist authorized to fill prescriptions. The prosecuting witness was an inspector for the Liquor Control Board. He testified that he went into the store and bought the liquor in question without a prescription and without in any manner complying with the law. Appellant denied that he sold the whiskey without a prescription and denied that he had ever seen the witness before.

Appellant’s bill of exception No. 1 complains of the testimony of H. I. Trout, editor of the Graham Leader, a weekly newspaper which has been regularly published in Young County since prior to 1896. The records of the Commissioner’s Court in the year 1896 show sufficiently 'the orders relative to a local option election and that the results were declared, but do not show the publication of the order declaring the result as required by the law at that time. To supply this, the prosecution called Mr. Trout, who brought with him certain numbers from the volume of the Graham Leader published during that year which showed the publication of this order for the period of time required by law. He testified on direct and cross-examination that he has been editor of the paper for several years; that he has custody of the files which are kept in a vault and that at least one copy of each issue of the paper is kept as a part of the files. He produced what he testified to be the original copies of the paper and read them into the record. He was not the editor at the time of the publication and had not at all times had charge of the files.

Objection was raised to his testimony as being hearsay. In the case of Ray v. State, 138 Tex.Cr.R. 553, 137 S.W.2d 1031, which is an appeal from Young County, the question came before us in a little different form, but with the objection that it was hearsay. In that record it was shown that the editor had made an affidavit and placed it on the record of the Commissioner’s Court. The affidavit was admitted in evidence and it was held to be hearsay. In the instant case the editor comes into court to testify as a witness and presents what he says is the original file showing the publication. We think this is distinguishable from the Ray case and that it is not an ex parte statement subject to the objection that it is hearsay, as was held in that case. This objection is overruled.

Bill of exception No. 2 contains the following objection to the quoted evidence:

“That he walked into the Drug Store and told the defendant that he wanted 1/2 pint of gin and he following him back to the liquor room, the both went in there, and the defendant wrapped up witness' liquor and while he was in there another man rushed in and said he wanted some whiskey that he the witness paid for the gin he got, he gave the defendant a One Dollar bill and got thirty five cents in change. He knows where the 1/2 pint of gin is at this time, it is right there (pointing). That is the same gin he bought at the time and place from the defendant.
“To which testimony the defendant objected because the same was prejudicial and was an attempt to prove an extraneous crime.”

This objection was overruled by the court and the bill on the subject is approved.

Recognizing the law, as stated, that the state would not be permitted to prove an extraneous crime unless it comes within one of the exceptions to the rule, still we are unable to conclude that the bill shows error. In the first place, the objection is not directed to any particular part of the quoted testimony. Some part of it was certainly not subject to that objection. The trial court was not in position to exclude admissible evidence in order to sustain appellant’s objection even though it also included evidence which was inadmissible. Neither are we in position to say the trial court erred. In the second place, the evidence as quoted merely states that, "while he was in there another man rushed in and said he wanted some whiskey.” It does not say that the witness testified appellant sold him any. Someone rushing in and saying he wanted some whiskey shows no offense either by the party saying it or by the appellant himself. There is no statement that another sale was made and, consequently, no extraneous crime was shown. In the state of the bill there was no error.

Appellant’s bill of exception No. 3 shows no error, and the same is passed without discussion.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

Appellant complains in his motion because of the fact that the minutes of the commissioners’ court of Young County in the year 1896 do not contain an entry showing that the then county judge of that county had designated a newspaper in which the order of the commissioners’ court of that county declaring the result of the election held in that county should be published. He says that on account of the fact that such an order does not appear in said minutes, then that there is no valid law in such county prohibiting the sale of intoxicating liquors therein.

It is noted, however, as said in our original opinion, that there was proof made by an exhibition of four of the issues of the “Graham Leader” showing the publication of the order of the commissioners’ court declaring the result and prohibiting the sale of such liquors in said county, and appended thereto is also shown the certificate of the then county clerk, a portion of such order being as follows:

“It is therefore ordered that the sale of intoxicating liquors within the limits of Young County, Texas, be and the same is hereby absolutely prohibited except for purposes and under the regulations prescribed by law, until such time as the qualified voters therein at a legal election held for that purpose, by a majority vote, decide otherwise. It is further ordered by the Court that this order be published for four consecutive weeks in some newspaper published in Young County.
“The State of Texas
“County of Young
“I, A. T. Gay, Clerk of the County Court of -said County, do hereby certify that the above and foregoing is a true and correct copy of an order passed by the Commissioners’ Court of Young County at a special session of said Court, on the Eighteenth day of March A. D. 1896, as the same appears of record in Book 5, pages 165 and 166 of the Minutes of said Court.
“(Seal) Witness my hand and seal of office, at Graham, Texas, this March 19th 1896.
“A. G. Gay
“C.C.C.Y.C.T.”

We have heretofore held in the Holland case, Holland v. State, 51 Tex.Cr.R. 147, 101 S.W. 1002, 1003, that a designation in the order of the commissioners’ court of a newspaper in which the court’s order was to he published was sufficient upon which this appellate court might predicate its presumption that such newspaper was also designated by the county judge as the vehicle in which the publication of such order should be made. In that case we held: “The general principle with reference to presumptions of this character is that it will be presumed, in favor of judicial acts * * *; that is, there is a disposition in courts of justice to uphold official and judicial acts, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied. See 2 Best on Evidence, p. 629, § 353 et seq. In accordance with this rule we hold that it will be presumed in favor of the certificate by the county judge, showing that publication was made in a certain paper, that he [the county judge] selected same, although there are no apt words in the order directly stating that he did make the selection. The fact that he made publication in a certain named paper is tantamount to a selection, in the absence of some showing to the contrary; and the naming of the paper by the commissioners’ court does not antagonize or destroy this presumption.”

Again in Johnson v. State, 52 Tex.Cr.R. 624, 108 S.W. 683, 684, we held: “* * * The fact that the county judge certifies that such publication was made, in the absence of anything to the contrary, will be sufficient proof that same was made in a newspaper selected by him and under his direction.”

We have also held in the Beaty case, Beaty v. State, 53 Tex.Cr.R. 432, 110 S.W. 449, that if the county judge'had failed to make an entry in the minutes of the court showing the publication of the commissioners’ court’s order, that same could be proven by oral testimony. To the same effect is the holding in the Ezzell case, Ezzell v. State, 29 Tex.App. 521, 16 S.W. 782.

In this case, in the trial court there was actually presented the copies of the paper in which the order of the commissioners’ court of Young County was published, which order bears evidence of its verity in the certificate of the county clerk. Under these circumstances we think it a fair presumption to say that this paper, the Graham Leader, was designated by the county judge as the newspaper in which the order of the commissioners’ court was to be published. Especially is this so since the general rule is in favor of upholding judicial acts rather than to hold the same inoperative. It will be further noticed that this local option election was held in the year 1896, about forty-six years ago, and doubtless many of the officers connected therewith, as well as the voters therein, have gone the inevitable way of mortality, and we do not feel disposed at this time to declare this local law to have been void all through the years of its observance, its temporary suspension during statewide prohibition, and its revival by constitutional enactment. We think we are authorized to and in the absence of any facts to the contrary we do presume that the Graham Leader was properly designated by the county judge as the newspaper for the publication of. this order, and therefore overrule bill of exceptions No. 1.

Bill of exceptions No. 2 relates to the fact that the witness Allen was allowed to testify that while he was being waited on by appellant in the purchase of a bottle of gin, another party came into this room and “said he wanted some whiskey.” There is nothing further shown in the bill as to whether he got any whisky or not, nor is it shown what the answer of appellant was to such request or statement. We see no error nor injury reflected in the admission of such testimony. All that occurred during this transaction seems to have been res gestae.

Bill of exceptions No. 3 seems to be based upon the fact that the witness who bought the bottle of gin was allowed to read the lettering on the label on this bottle before the jury, the objected to testimony being as follows: “This bottle had this Federal stamp on it and the back reading Hiram Walker White Swan distilled dry gin, Peoria, Ill. 85 proof distilled and bottled by Hiram Walker, Peoria, Ill. 1/2 pint U. S. Internal Revenue Tax paid bottle stamp. Internal Revenue distilled spirits 1/2 pint.”

The major objection directed to this testimony being that such label was not placed thereon by appellant and was not the best evidence to prove that “the bottle contained liquor prohibited by law.”

We think the bottle as well as its contents were admissible, regardless of what its label showed. The witnesses testified that the bottle sold by appellant contained gin, and we judicially know that gin is an intoxicant. See 17 Tex.Jur., p. 241, and a large number of cases there cited. It will also be noted that Art. 666—3a Vernon’s Ann.P.C. denominates “gin” as an alcoholic beverage, and the record shows that the State’s witness testified that he asked appellant for one-half pint of gin, and that he was given by appellant one-half pint of gin, and paid him for same.

We perceive no error in this record, and the motion is overruled.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    BELL v. STATE.
    No. 21326.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1940.
    Rehearing Denied Jan. 22, 1941.
    Application for Leave to Pile Second Motion for Rehearing Denied Eeb. 5, 1941.
    H. D. Stringer, of- Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is selling wine in a dry area; the punishment, a fine of one hundred dollars.

An inspector of the Texas Liquor Control Board testified that on the 28th of September, 1939, he bought a quart of wine from appellant. The testimony of appellant’s witnesses raised the issue of alibi.

Appellant contends that the state failed to introduce all of the orders necessary to show the dry status of Hall County. Appellant has failed to specify the absence of any essential order' from the record. Our examination of the statement of facts leads us to the conclusion that all essential orders were introduced in evidence.

It was shown that after prohibition had been adopted in Hall County subsequent elections had been held, hut that such elections failed to change the dry status of the county. This testimony was given orally by the custodian of the records without producing the records relating to such subsequent elections. Appellant objected to the testimony on the ground that the records constituted the best evidence. Under the holding of this court in George Evans v. State, Tex.Cr.App., 144 S.W.2d 897, delivered November 20, 1940, it was not incumbent upon the state to prove that the dry status of the county had not been changed by subsequent elections, notwithstanding it was averred in the indictment that such change had not occurred. In short, the court held that the averment mentioned was surplusage.

Article 666—3a of Vernon’s Ann.P.C. (the Texas Liquor Control Act) provides: “ ‘Liquor’ shall mean any alcoholic beverage containing alcohol in excess of four (4)' per centum by weight, unless otherwise indicated. Proof that an alcoholic beverT age is alcohol, spirits of wine, whiskey, liquor, wine, brandy, gin, t-equilla, mescal, habanero, -or barreteago, shall be prima facie evidence that the same is liquor as herein defined.”

The court instructed the jury, over appellant’s proper objection, as - follows: “You are hereby instructed that wine is a liquor containing alcohol in excess of one-half of one per’centum by volume.”

It is appellant’s contention that the court should have given his requested instruction defining prima facie evidence. If such an instruction would have been proper — and this is not conceded — we are unable to perceive how either the charge the court gave, or the failure to give appellant’s requested instruction, could have injured appellant. We say this in view of the fact that Subdivision (b) of Article 666 — 4 of Vernon’s Ann.P.C. (the Texas Liquor Control Act) reads as follows : “It shall be unlawful for any person in any dry area to manufacture, distill, brew, sell, possess for the purpose of sale, import into this State, export from the State, transport, distribute, warehouse, store, solicit or take orders for, or for the purpose of sale to bottle, rectify, blend, treat, fortify, mix, or process any liquor, distilled spirits, whiskey, gin, brandy, wine, rum, beer or ale.”

It is observed from the foregoing quotation that the sale of wine in a dry area is inhibited. This court takes judicial notice that wine is an intoxicating liquor. Terry v. State, 137 Tex.Cr.R. 325, 128 S.W.2d 1202. We do not understand that the provisions of the statute heretofore quoted to' the effect that proof that an alcoholic beverage is wine is prima facie evidence that it is liquor as defined in the statute should cause this court to reverse its former holdings that we take judicial notice that wine is an intoxicating liquor. The complaint charged that the wine appellant is alleged to have sold was an intoxicating liquor and contained alcohol in excess of one-half of one . per centum by volume. Being intoxicating, it would seem to follow that its alcoholic content was more than one-half of one per centum by volume. Under the circumstances, if error was committed by the court with reference to the charge in question, we think such error was harmless.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing!

KRUEGER, Judge.

In his .motion for rehearing appellant seriously contends that we erred in our original opinion in holding that the State offered in evidence the orders of the Commissioners’ Court of Hall County showing that local. option was in force and effect in said county at the time of the commission of the alleged offense. He contends that our holding is tantamount to saying that to offer in evidence the orders is equal to their introductipn in evidence, which is contrary to the decision of this court in Lester v. State, 69 Tex.Cr.R. 312, 153 S.W. 861; Graham v. State, 139 S.W.2d 269, and McChristy v. State, 145 S.W.2d 873, decided December 18, 1940, but not yet reported [in State Report]. We are not unmindful of the holding of this court in the cases mentioned, but in the case under consideration the County Attorney called the deputy ■ county clerk, who produced the minutes of the Commissioners’ Court and identified the same. He then introduced the orders of said court ordering an election for the purpose of determining whether or not the sale of intoxicating liquor within and for Hall County should be prohibited, the notice of the time and place for holding said election, the order declaring the result of said election to be in favor of prohibiting the sale of intoxicating liquor, the proclamation of the county judge, together with the publication thereof, all of which appears in the statement of facts. It might have been better had we said that the orders were introduced instead of having said that they were offered in evidence. They were actually introduced in evidence as disclosed by the statement of facts, of which appellant no doubt had full knowledge because his attorney agreed to the statement of facts and signed the same. We therefore overrule his contention.

Appellant next complains that we erred in declining to sustain his contention that the, trial court committed reversible error in declining to give his special requested instruction to the effect that “liquor shall mean any alcoholic beverage containing alcohol in excess of four per centum by weight.” He claims that it was charged in the information that he sold “liquor” and therefore our holding in the instant case is in conflict with our decision in the cases of Pain v. State, 134 Tex.Cr.R. 387, 115 S.W.2d 638, and Terry v. State, 137 Tex.Cr.R. 325, 128 S.W.2d 1202. We have examined the authorities cited by appellant but find ourselves unable to agree with him that our holding in the instant case is in conflict with the decisions in those cases. In the present instance, it was charged that appellant sold to E, S. Crider “wine, same being an alcoholic beverage containing more than one-half of one per cent of alcohol by volume.” Article 666 — 4, Vernon’s Ann.P.C., makes it unlawful for any person in any dry area “to * * * sell * * * wine,” etc. This court has heretofore said in the case of Terry v. State, supra, that we will take judicial notice of the fact that wine is an intoxicating liquor containing alcohol in excess of one-half of one per cent by volume. Consequently, the . State was not required to prove that the wine contained alcohol in excess of four per cent by weight. We do not believe it would serve any useful purpose to again enter upon a lengthy discussion of the question. We therefore overrule the same.

All other matters urged in the motion for rehearing have had our most careful consideration and are deemed to be without merit.

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.


author: TIREY, Justice.

text:
    MILLER et al. v. DAVIS et al.
    No. 2263.
    Court of Civil Appeals of Texas. Waco.
    Dec. 31, 1940.
    Rehearing Denied Jan. 30, 1941.

      Winfrey & Goldberg, of Dallas, ’for appellants.
    • Tom L. Tyson, of Corsicana, for appel-lees.
   TIREY, Justice.

This suit was brought by the independent executors without bond of the last will and testament of Frank Neal Drane, deceased, to ascertain the judicial construction, under said will arid codicil, of their duties and obligations to the defendants Jake Miller, Mrs. Jennie 'E. Puckett, Cisco Dansby and Meritt Drane, beneficiaries under said last will and testament. The case was tried before the Court without a jury,' and from the judgment entered, Jake Miller and Meritt Drane have appealed.

Because of the questions involved, a comprehensive statement is necessary. Frank Neal Drane executed his last will and testament on March 5, 1938, and thereafter a codicil on May 12th. Same disposed of an estate of the approximate value of $800,-000. The will disclosed that the dominant purpose of the testator was to establish a charitable trust for the use and benefit of public charities specifically named in the will. He specified that it should be called “Navarro Community Foundation,” and that it should be administered by a self-perpetuating board of managing trustees and their successors. ■ The testator’s intention and purpose are perhaps better expressed in Item 7 of the will: “Item Seven. It is my desire, plan and purpose to achieve the formation of such Foundation while I yet live, and I am even now making progress in the execution of this long cherished purpose, which I earnestly desire to consummate during my lifetime. If, however, death should deprive me of the privilege of promulgating this Foundation, then it is my will and purpose that my Executors, as herein provided, shall give effect to my long cherished desire to devote and dedicate the residue of my estate to the purposes herein expressed, and themselves create such Foundation, either noncorporate or corporate.”

The will further provided: “The object and purpose of the creation of said Foundation, non-corporate or corporate, is that the net income and corpus, either or both, of the Foundation, after the discharge of liabilities for annuities or otherwise shall be used * * * ” exclusively for public charities specifically enumerated. Item 5 provided for annuities to the appellants and other beneficiaries, and tlie pertinent parts thereof are as follows:

“The Managing Trustees of the Foundation, whether non-corporate or corporate, with the funds and properties belonging to me and composing my estate, and which shall be transferred, set over, assigned and delivered to them, shall provide for and pay the following life annuities in the order named:
“(a) A life annuity to yield to my sister-in-law, Mrs. Jennie E. Puckett, $50.00 per month, and at her death to provide for the expenses of her last sickness and burial;
“(b) A life annuity to'yield my longtime employee at Arcady, Jake Miller, $50.-00 per month, if at my death, he is still in my employ and if he shall elect to continue in the employ of the Foundation, such payments to begin upon Jake’s becoming incapacitated for service, or if and when relieved from service by the Executors or Trustees, as the case may be, and such payments shall continue until his death;
“(c) A life annuity to yield $100.00 per month each, to my spouse, if in a remote contingency I should have one, and a nurse, if I should employ one on a permanent basis to attend and serve me during my remaining years and designate such nurse to receive such annuity, or within the discretion of the Trustees if I fail to so designate — conditioned, further, that such nurse shall remain continuously in my employ from the time of entering such service until my demise;
“(d) A life annuity to yield $100.00 per month to my brother, Meritt Drane;
“If, in any event, the amount reserved by my Executors out of my estate for the payment of the above-mentioned and named annuitants be insufficient to pay all of them in full, then I hope and pray that Executors and/or Trustees may make such payments out of the benevolent residue of my estate then in existence, under the provisions of its Articles of Association or Charter for strictly personal charity.
* * * * * * *
“The trustees will next pay in cash, or its equivalent, unto my son, Hugh Albert Drane, Sr., the sum of One Dollar ($1.00), and unto my grandson, Hugh Albert Drane, Jr., the sum of Twenty-five Hundred Dollars ($2,500.00) ; but if either or both of them shall predecease me, then the legacy to such predeceasing legatee shall ipso facto be canceled and reverted to my estate. In this connection I further direct that if either my son or my grand-son shall contest this Will, or undertake to prevent its being probated, or institute any action to annul the same, or contest the disposition of my property, or any part thereof, made hereunder; or if they, or either of them, should fail or refuse to restore back to me or to my estate, upon demand, the life insurance policies upon my own life and heretofore assigned by me, which are mentioned above, upon refund of premiums paid by them, or either of them, or Dorothy, then either one or all of such happenings or nonhappenings shall, in themselves, operate to and shall ipso facto forfeit as to both my son and grand-son the bequests herein given them, which' forfeited bequests shall be thrown back into the corpus of my estate and used for the purposes herein expressed.”

The codicil canceled sections (c) and (d) of Item 5 of the will. It provided for his spouse, if he had one, and a nurse attendant, if he employed one, substantially as the testator did in section (c), save and except it provided that the monthly payment to each should be in such sums and amounts as his executors in their sole discretion may determine. (He did not leave a.spouse.) The codicil further provided: “Now, with particular reference to my brother, Meritt Drane, it is my will, and Í do hereby direct that 'my executors shall pay to him during the term of his life a monthly stipend or annuity of not more than Fifty Dollars ($50.00) per month * * * » The wíu was further amended by the codicil in the following manner: “The legal title to all of the property, real, personal and mixed, of which I may die seized and possessed, shall immediately upon my death vest in my executors, upon trust, however, that the same shall in due course be delivered to the trustees of the Foundation, as provided in my will, or be otherwise disposed of and delivered, as provided in my said will.”

Thereafter, the testator, on May 28, 1938, executed to and with B. Lynn Davis and eleven others articles of association of the Navarro Community Foundation, which articles of agreement voluntarily associated the testator to and with B. Lynn Davis and others for the purpose of creating a non-profit, self-perpetuating 'foundation, which they designated and named “Navarro Community Foundation,” domiciled at Corsicana, Navarro County, Texas. The purposes stated in the articles of association were substantially as stated in Item 7 quoted.

On May 28, 1938, the testator resigned as a Trustee of said Foundation and his resignation was accepted and a successor was elected. Thereafter, on the same day, the testator executed and delivered a deed of conveyance to Navarro Community Foundation, whereby he conveyed and set over to said Foundation the whole of his property, save and except certain reservations which he made to what he called “book-credit-deposit” of $350,000. On May 11, 1939, the Governor approved House Bill 987 (a special Act of the Legislature, Vernon’s Ann. Civ. St. art. 3263b), which created and established a perpetual, public, charitable, non-profit body corporate to be denominated “Navarro Community Foundation,” domiciled at Corsicana, Navarro County, Texas. Said Act empowered said Foundation to extend its aid to any one or more or all of certain public, charitable purposes specifically named therein. Said Foundation has conducted its affairs as a corporate body since its creation as such by said legislative act.

The trial court found in favor of Jake Miller as to the facts upon which his annuity matured and became operative, and that he was entitled to feceive’ the sum of $50 per month for the remainder of his natural life. The court awarded to Meritt Drane the cash stipend of $50 per month for life in preference to the alternate provisions in the codicil (he having stated in open court that he preferred the monthly cash stipend). Said judgment also fixed and awarded to Cisco Dansby, the nurse, a monthly stipend of $100 per month for the remainder of her natural life. The judgment validated the claim of Mrs. Jennie E. Puckett against said estate and awarded to her the sum of $50 per .month during the term of her natural life, together with the reasonable and actual expenses and costs incident to her last illness and proper burial, and she did not appeal. The judgment authorized the executors of said estate to procure and deliver to each of the defendants, Jake Miller, Meritt Drane and Cisco Dansby, at the cost and expense of the estate of Frank Neal Drane, deceased, an annuity contract, issued, executed and delivered by a life insurance company authorized to do business in the state of Texas, having ample legal reserves to safeguard and protect its undertakings, properly invested in securities approved by the Board of Insurance Commissioners of the State of Texas, and operating under the supervision of the Department of Insurance of thé State of Texas, by the terms whereof such life insurance company irrevocably and unconditionally binds and obligates itself to pay to each of the defendants said monthly stipends during the remainder of each defendant’s natural life; the remainder, if any, due upon such annuity contract at the death of each defendant to revert to and become the property of Navarro Community Foundation. Said judgment further provided that upon the delivery to said defendants of the annuity contracts aforesaid, together with the accruals of the respective amounts awarded to each defendant per month since the death of testator and the acceptance of same by said defendants, or either of them, shall neither have nor assert any further claim, demand or cause of action against the estate of Frank Neal Drane, deceased, or its successors. Said judgment discharged the plaintiffs and Navarro Community Foundation of and from all further liability, claim or demand. Said judgment further provided that said Navarro Community Foundation, upon demand of plaintiffs, shall deliver to the plaintiffs whatever sum of money as may be necessary to enable them to comply with and execute the judgment entered, together with all costs. The judgment further provided that after the executors of the estate of Frank Neal Drane had paid all the lawful debts, expenses and charges for which said estate may be liable, whatever sum of money, if any, that remained unex-pended out of the original book-credit-deposit of $350,000 reserved by said Frank Neal Drane in his conveyance to the trustees of and for the Navarro Community Foundation shall revert to and vest in said Navarro Community Foundation.

It appears that the defendant Cisco Dansby voluntarily appeared and filed a written answer in which she asked the court that the award made to her be satisfied by the procurement and delivery to her by the executors of a life insurance company’s annuity contract and she did not appeal therefrom. The claims of defendants Puckett and Dansby are in nowise or manner dependent or interwoven with the claims of Jake Miller and Meritt Drane, and since Puckett and Dansby have not appealed, the judgment of the trial court as to these defendants should be in all things affirmed. Adams v. Houston Nat. Bank, Tex.Com.App., 1 S.W.2d 878; Burke v. Cruger, 8 Tex. 66, 67, 58 Am.Dec. 102; Hamilton v. Prescott, 73 Tex. 565, 11 S.W. 548; Stanton v. Security Bank & Trust Co., Tex.Com.App., 244 S.W. 593; 3 Tex.Jur. sec. 810, p. 1150, sec. 812, p. 1153.

Appellants have assailed the construction placed on the will and codicil by the court authorizing the executors to purchase the annuity contracts from a life insurance company for each of them and providing that upon acceptance of these 'contracts that the estate of Frank Neal Drane and said Foundation would be released from all further liability. We think this contention must be sustained. The provision as to Jake Miller is found in Item 5 of the will and the general clause therein specifies “shall provide for and pay the following life annuities in the order named: * * * ”. Then follows the bequests as hereinbefore set out. The codicil canceled subsection (d) of the will (which made provision for Meritt Drane), and with reference to him provided: “Now, with particular reference to my brother, Meritt Drane, it is my will, and I do hereby direct that my executors shall pay to him during the term of his life a monthly stipend or annuity of not more than Fifty Dollars ($50.00) per month ⅝ * ⅜»

It will be observed that the above provision provides: “ * * * my executors shall pay to him during the term of his life a monthly stipend or annuity of not more than Fifty Dollars ($50.00) per month * * *_» Unquestionably the foregoing language fixed responsibility on the executors to pay to Meritt Drane the sum of $50 per month during the term of his life and we know of no authority that can force Meritt Drane to accept another paymaster and discharge the executors of the estate of Frank Neal Drane from further liability. It is true that the codicil authorized the executors within their sole discretion and judgment to provide a farm home suitable in size and location in lieu of the monthly stipend for Meritt Drane, but it did not provide for any other substitution. The codicil did not in any manner modify or change the general provision in Item 5 which made provisions for Jake Miller and which general provision, among other things, expressly stated: “ * * * shall provide for and pay the following life annuities in the order named * * This language is susceptible of but one interpretation: First of all, the duty to provide; and second, the duty to pay. “The cardinal rule of testamentary construction has been declared to be to ascertain the intent of the testator and give its effect, and it is said that such intention, when ascertained, will control any arbitrary rule.” Darragh v. Barmore, Tex.Com.App., 242 S.W. 714, 716, point page 716; Briant v. McGown, Tex.Civ.App., 15 S.W.2d 1110, point page 1112; Cleveland v. Cleveland, 89 Tex. 445, 35 S.W. 145. In connection with Item 5, the testator further provided: “If, in any event, the amount reserved by my Executors out of my estate for the payment of the above-mentioned and named annuitants be insufficient to pay all of them in full, then I hope and pray that Executors and/or Trustees may make such payments out of the benevolent residue of my estate then in existence; under the provisions of its Articles of Association or Charter for strictly personal charity.”

Now the codicil further expressly provided : “The legal title to all of the property, real, personal and mixed, of which I may die seized and possessed, shall immediately upon my death vest in my executors, upon trust, however, that the same shall in due course be delivered to the trustees of the Foundation, as provided in my will, or be otherwise disposed of and delivered, as provided in my said will.

We think that a careful consideration of the will and codicil shows that the terms “executors” and “managing trustees” seem to have been used interchangeably in the will. It therefore appears that the testator intended that his executors should provide for and pay the monthly stipends or annuities to the named appellants out of what he termed the book-credit-deposit of $350,000. The executors have plenary powers to provide and pay these monthly stipends in such manner as their discretion may dictate; but they do not have the right to substitute another paymaster in lieu of themselves and require the annuitants to accept such new paymaster and release the estate from all further liability. We are therefore of the opinion that the judgment of the trial court, wherein it is provided that upon acceptance of the annuity contracts by said named beneficiaries the estate of Frank Neal Drane and its successors would be released from all further liability, is erroneous, and for that reason that provision of said judgment must be set aside and to that extent reformed.

Appellants’ next proposition is .that since neither the Attorney General of Texas, who is the legal representative of public charities in this state, nor Trinity University, Hugh Albert Drane, Sr., or Hugh Albert Drane, Jr., were parties to the suit, and all of them being necessary parties the court erred in rendering any judgment construing the will of Frank Neal Drane. We overrule this contention. We think the rule is: “The Attorney General is a proper party defendant as representing the public interest, yet that officer is not a necessary party to a bill for the instructions of the court as to the administration of a public charity, when the gift is in the hands - of trustees charged specifically by the donor with its management for the cestui que trust, and no charges of waste or mismanagement are made against them.” 11 C.J. p. 369. 14 C.J.S., Charities, § 62. We think this rule is applicable to the facts in this case. The only questions involved in the construction of the will and codicil related to the payment of the annuities provided for Mrs. Puckett, Jake Miller, Cisco Dansby and Meritt Drane, and particularly as to whether or not testator intended for the executors to make provision for payment of said annuities to said beneficiaries aforesaid out of the book-credit-deposit reserved by the testator, or whether the same should be paid by the Managing Trustees of the Foundation. The will and the codicil made the annuities for each of the above-named annuitants a first and. prior charge upon his estate in the order named. The Attorney General, Hugh Albert Drane, Sr., ,and Hugh Albert Drane, Jr., are not interested unless it is contended that the executors' have abused their discretion to their detriment, and no such claim is here made. Moreover, Hugh Albert Drane, Sr., was left a bequest of $1, and, of course, he had no substantial interest in the estate. Cousins v. Cousins, Tex.Civ.App., 42 S.W.2d 1043, writ refused. Hugh Albert Drane, Jr., was given a bequest of $2,500,- subject to the conditions set out in Item 5 of the will. The record is undisputed that out of the book-credit-deposit reserved by the testator in his deed to the Foundation there was still on hand a sum in excess of $300,000, and since the judgment entered in the trial court, among other things, expressly provided “ * * * and when plaintiffs, as executors of the estate of Frank Neal Drane, deceased, have paid all lawful debts, expenses and charges for which said estate may be liable, that whatever sum of money, if any, that may remain unexpended out of the original book-credit-deposit of $350,000 * * * shall revert to and vest in and become absolutely the property of Navarro Community Foundation,” it therefore appears to us that the Dranes come within the exception to the general rule of necessary and indispensable parties to the construction of a will, because their rights are in no event prejudiced by the provisions of the decree. 69 C.J. 882, § 2015; Stuart v. United States National Bank, 86 Colo. 259, 280 P. 882; Fidelity Union Trust Co. v. Ackerman, N.J.Ch., 121 N.J.Eq. 497, 191 A. 813, point page 821. Their claims are subordinate and inferior to the claims of Puckett, Dansby, Jake Miller and Meritt Drane, and the Dranes are at liberty to make demand of the executors for the payment of their respective bequests.

Trinity University is in no sense a beneficiary under the last will and testament of Frank Neal Drane. It is true that there was a bequest left to it under the provisions of Item 8 of the will, but said Item was a conditional provision that provided for the disposition of the estate in the event that he did not live to create the Foundation, or if his executors, after his death, should decide not to create the Foundation, and inasmuch as the testator did live to create the Foundation, this contingency did not happen and therefore Trinity University 'could in no event be a legatee under the will and therefore was not a necessary or indispensable party.

Appellants contend that House* Bill 987, creating the Navarro Community Foundation, is unconstitutional and that since the trustees of said Foundation, an unincorporated trust, are not parties to the suit, and, being necessary parties, that the court erred in rendering any judgment construing the will of Frank Neal Drane. These contentions cannot be sustained. We think the rule is that a corporation, though organized and acting under an unconstitutional special charter, is nevertheless a de facto .corporation, and that the state only can inquire into the validity of the charter. McTighe v. Macon Construction Co., 94 Ga. 306, 21 S.E. 701, 32 L.R.A. 208, 47 Am.St.Rep. 153; 13 Am.Jur. 196. The general rule is “that the legality of the existence of a de facto corporation can be questioned only by the 'State in a direct proceeding and cannot be collaterally attacked or litigated in actions or proceedings between private individuals or other corporations, or between them and the alleged corporation itself.” Commercial Standard Ins. Co. v. Nelson Mortgage Co., Tex.Civ.App., 138 S.W.2d 169, point page 173; 14 C.J. 204, § 216, 18 C.J.S., Corporations, § 94. “A corporation de facto * * * is * * * not a corpora tion legally constituted, but a corporation organized and operated under color of the law.” American Salt Co. v. Heidenheimer, 80 Tex. 344, 15 S.W. 1038, 1039, 26 Am.St.Rep. 743; 14 C.J. 167, § 172; 18 C.J.S., Corporations, § 76; Parks v. West, 102 Tex. 11, 111 S.W. 726, point page 729; Rutherford v. Watson, Tex.Civ.App., 52 S.W.2d 85, par. 5, error refused; Brennan v. City of Weatherford, 53 Tex. 330, 37 Am.Rep. 758; 10 Tex.Jur. pp. 631, 632, 633, §§ 39 and 40. The Foundation was a party defendant to the suit in its corporate capacity and there was- proof of user or the exercise of corporate powers under its charter. Certainly it was acting as a corporation under color of authority. The appellants did not raise any question in the court below as to the corporate existence, R.S. art. 1999, nor as to defect of parties to the suit to construe the will, and they cannot collaterally attack the constitutionality of the special act creating the Foundation as a body corporate under the well-established rules of our courts. Our Supreme Court, in the case of Parks v. West, supra [102 Tex. 11, 111 S.W. 729], said: “ * .* * the validity of such incorporation can be questioned only by the state in a direct proceeding. * * * There are other cases in which it is not essential to the protection of any right * * * that inquiry should be made into the validity of- the incorporation. The rule is founded in public policy and convenience, merely, and is not to be so applied as to defeat the assertion of just legal rights by parties in the courts. It is said that it is essential to the doctrine that there be in existence a law in virtue of which such a corporation as that the party to the litigation claims to be might legally' exist and ‘that the rule is the same where there is only an unconstitutional law.’ ” It is certain that it was the testator’s intention that appellants should be provided for by the executors out of the $350,000 book-credit-deposit before it passed to the Foundation, and, that being true, appellants in no event are in position to question the legality of the corporate existence of the Foundation; and all propositions relating thereto are overruled.

We have carefully considered each of the other assignments and, in our opinion, no error is presented and each is overruled. i

That part of the judgment of the trial court, wherein it is provided that upon de- . livery of the annuity contracts of an insurance company to the said Jake Miller and Meritt Drane and the acceptance of the payments thereunder by them said legatees 1 shall be forever barred from any further ¡ claim against said estate, is hereby set. aside. The judgment of the trial court in all other respects is affirmed. Reformed and affirmed.


author: CODY, Justice.

text:
    WILLIAMS v. WILLIAMS.
    No. 11114.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    'Charles H. Mayer, of Houston, for appellant.
    No brief was filed in behalf of appellee.
   CODY, Justice.

This is a suit for divorce. From a judgment dismissing the cause, this appeal is brought.

The court made these findings of fact and conclusions of Law;

“Findings of Fact.
“I find that the plaintiff, Silas Williams, was an actual bona fide inhabitant of the .State of Texas from the 14th day of April, 1929; continuously, until the date of the filing of his original petition in this cause on the 19th day of February, 1940.
“I find that the plaintiff, Silas Williams, had actually and continuously resided in Harris County, Texas, from the 14th day of April, 1929, tmtil the date of the filing of his ■original petition in this cause on the 19th day •of February, 1940.
“I find that plaintiff, Silas Williams, and defendant, Theresa Williams, were legally and lawfully married at Houston, Texas, on the 14th day- of April, 1929,- and that plaintiff, Silas Williams, and defendant, Theresa Williams, continued to live together as husband and wife until on or about the 25th day of February, 1939.
“I find that, during the period of the marriage of plaintiff and defendant, plaintiff treated defendant with kindness and consideration, provided for her support and maintenance within his ability, and was guilty of no wrongdoing toward defendant.
“I further find that the defendant, Theresa Williams, during the last year that she and plaintiff, Silas Williams, lived together as husband and wife, to-wit: from on or about February 25th, 1938, to on or about February 25th, 1939, was guilty of cruel treatment and of outrages toward plaintiff, Silas Williams, of such a nature as to render their further living together insupportable.
“I find that no child was born to plaintiff and defendant, arid rio community property acquired.
“I find that the plaintiff, Silas Williams, continued to be an actual bona fide inhabitant of the State of Texas, and continued to be an actual resident of Harris County, Texas, for four (4) days after the filing of said original petition until the 23rd day of February, 1940, and that on this, latter date, February 23rd, 1940,, plaintiff left the State of Texas to go to work in, and at the time of the trial of this cause was’ working in, New York City, New York.
“I find that plaintiff at the time of the trial of this case on March.23, 1940, .was not an actual bona. fide inhabitant of the State of Texas, but was then, and is now, a resident of the State of New York.
“Conclusions of Law.
“I conclude as a matter of law, that the plaintiff, Silas Williams, having abandoned his residence in Texas before the date of the trial of this cause, and having become an inhabitant of a foreign state, is not entitled to a divorce in Texas.”,

It was held by our Supreme Court in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, that Article 4631, Vernon’s Annotated Texas Civil Statutes, providing that no suit for divorce shall be maintained in the courts of this State unless the petitioner shall at the time of exhibiting his petition “be an actual bona fide inhabitant of this State for a period of twelve (12) months, * * *” is not jurisdictional, but merely prescribes the qualifications the petitioner must possess to be entitled to prosecute a divorce in the courts of this State. The cited opinion was based largely upon the opinion of Judge Reese in Charlton v. Charlton, Tex.Civ.App., 141 S.W. 290, 291. The following is a portion of the language of Judge Reese which was quoted with approval in the cited opinion: “ 'A statute making residence of plaintiff a prerequisite to the exercise of divorce jurisdiction does not preclude a nonresident defendant from filing a cross-bill and obtaining a decree of divorce against plaintiff. Nor will a nonresident defendant be deprived of his right to relief on a cross-bill by a- dismissal or discontinuance of the original petition.’ ” If, under the statute, the good faith of residence of a plaintiff for twelve months before filing his petition, can impose on the courts of Texas the duty to try a cross-action of a non-resident defendant, though the plaintiff dismiss his action, the filing of which gave the court right and duty to try the cross-action, we can see no reason why a plaintiff should lose his right to prosecute a divorce because of exigencies which may have compelled him to remove to another state to make his living after his petition for divorce has been filed. Quoting with approval from the Charlton case, supra, the Supreme Court said in Aucutt v. Aucutt, supra [122 Tex. 518, 62 S.W.2d 80, 89 A.L.R. 1198]; “‘The purpose of the statute was to protect, not only the defendant in divorce proceedings, but also the interests of society, against fly-by-night divorce suits instituted by birds of passage, who with no stability of residence, might use the courts to procure divorces upon false grounds, and sometimes by collusion with the opposite party.’ ” We conclude that, as appellant’s is no fly-by-night affair, due to his long residence in Texas, that he did not lose his right to prosecute his suit for divorce under the court’s findings of fact, though he removed from Texas after his suit was filed seeking a divorce on grounds that are based on occurrences in Texas.

As the court found that appellant was entitled to a divorce, but had, because of his loss of residence, lost his right to prosecute his suit therefor, and for that reason dismissed the suit, we reverse the judgment dismissing the cause, and here render the judgment which it appears the court below would have rendered, except for his erroneous belief that appellant had no right to prosecute his suit for divorce after removing from Texas.

The judgment of the court below dismissing the cause is reversed, and judgment is here rendered granting the divorce, as prayed for.

Reversed and rendered.