author: HICKMAN, Commissioner.

text:
    FINCK CIGAR CO. v. CAMPBELL.
    No. 2275-7406.
    Commission of Appeals of Texas, Section A.
    Dec. 6, 1939.

      Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in error.
    Ray Bland, T. R. Boone, and Kilgore & Rogers, all of Wichita Falls, for defendant in error.
   HICKMAN, Commissioner.

In the trial court, S. L. Campbell, defendant in error, recovered judgment against Finck Cigar Company, plaintiff in error, for damages resulting from a collision between his automobile and an automobile belonging to the Cigar Company, and being operated at the time of the collision by its agent. The judgment of the trial court was affirmed by the Court of Civil Appeals. 114 S.W.2d 348.

Only two questions are presented for decision. The first one arose out of the court’s charge. Special Issue No. 35 was in this form: “Find from a preponderance of the evidence what amount of money, if any, if paid now in cash, would reasonably and fairly compensate the plaintiff, S. L. Campbell, for the injuries and damages sustained by him, if any, as directly and proximately caused by the negligence, if any, of the driver of the defendant’s automobile in question. In answering you may take into consideration only such elements of damage, if any, as hereinafter enumerated and consider no more.”

Following this issue the elements of damage were enumerated under lettered subdivisions a to j, inclusive. Typical of these lettered subdivisions is the first, reading as follows: “a — Loss of earnings of the plaintiff, S. L. Campbell, if any, which he sustained in the past as a direct and proximate result of such negligence, if any.”

It will be observed that' the above language limited the jury to the finding of such damages as were directly and proximately caused by the negligence, if any, of the driver of the defendant’s automobile. The claim is that by thus restricting the scope of the inquiry the charge informed the jury of the effect of its answers to the issues on negligence and proximate cause. In support of this contention plaintiff in error relies principally upon the case of Grasso v. Cannon Ball Motor Freight Lines et al., 125 Tex. 154, 81 S.W.2d 482.

There is a clear distinction between the charge in that case and the one in this case. What was there condemned was a general charge given in a case submitted on special issues, the effect of which was to inform the jury of the result of all of its answers, including those to the issues submitting the. question of the plaintiff’s contributory negligence. In this case the language of the special issue and the accompanying instructions at most but informed the jury that the defendant’s liability for damages rested upon its findings in answer to the issue on negligence and proximate cause. It has been definitely decided that, to inform the jury of that which it already knows does not prejudice the rights of a litigant. McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Texas & Pacific R. Co. v. Edwards, Tex.Com.App., 36 S.W.2d 477; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, error refused; 41 Tex.Jur. 1206, § 342. The language complained of informed no juror of ordinary intelligence (which all jurors are presumed to possess) of anything which he had not already learned during the trial of the case, and the assignments presenting this question are, therefore, overruled.

The other question presented for decision is the contention that a witness brought information to the jury that the defendant was protected by a policy of indemnity insurance, and that the court erred in refusing to declare a mistrial when such information was given. The question arose in this manner: C. B. Sikes, a traveling salesman for the Cigar Company, was the driver of its car on the occasion of the collision. He sustained serious injuries at the time, resulting, it seems, in some impairment of his memory. While on the stand as a witness for the Cigar Company his testimony indicated that he remembered the facts surrounding the accident, but he admitted that for some time after the accident he remembered practically nothing about it. On cross-examination of this witness by counsel for defendant in error the following occurred:

“Q. You say your memory for a while was not good concerning the details of the accident? A. That is right.
“Q. At the time the deposition was taken did you have a recollection then of what you told here? A. Yes, sir, I did some of it.
“Q. And every since that time you have had about the same recollection as you have now? A. Probably a little better improvement.
“Q. And the improvement has come from what? A. Thinking about it.
“Q. And talking about it? A. Yes, sir.
“Q. And listening to others talk about it ? A. Oh, yes, some of that entered into it.
“Q. How often has John Touchstone or this other boy talked to you about it? A. I never saw Mr. Touchstone or this other boy until last night.
“Q. But you have seen other people ? A. There has been very few talked to me about it representing the company, or Insurance Company either one.”

It is a well settled rule in this jurisdiction that it is error to inform the jury that the defendant in an action for dam-ages for personal injuries is protected by indemnity insurance. Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234; Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039; Southland-Greyhound Lines, Inc., v. Cotten, 126 Tex. 596, 91 S.W.2d 326; Texas Power & Light Co. v. Stone, Tex.Civ.App., 84 S.W.2d 738, error refused. But that rule has no application when the defendant, or one of his witnesses, voluntarily brings such information to the jury, and it is not brought through any fault of the plaintiff or his attorneys. Carter-Mullaly Transfer Co. v. Bustos, Tex.Civ.App., 187 S.W. 396, error refused; Red Star Coaches, Inc., v. Lamb, Tex.Civ.App., 41 S.W.2d 523, error dismissed; Williams et al. v. Long, Tex.Civ.App., 106 S.W.2d 378, error dismissed; 33 Tex.Jur. p. 278. As observed in the Carter-Mullaly case first above cited, were this exception to the general rule not recognized, the defendant would have it within his power to bring about a mistrial in all cases and the plaintiff would be unable to guard against it.

The instant case comes well within the exception to the general rule. The matter about which the interrogatories were directed to the witness was a proper subject for cross-examination. There is not the slightest suggestion by the record that the attorney conducting the cross-examination overstopped the bounds of proper cross-examination. He propounded no question to which the answer given by. the witness was responsive. We hold, therefore, that it was not reversible error for the trial court to overrule the motion to declare a mistrial.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: SMEDLEY, Commissioner.

license: Public Domain

text:
    GOSSETT, Banking Commissioner, v. GREEN.
    No. 1787-7310.
    Commission of Appeals of Texas, Section B.
    Dec. 6, 1939.
    A. J. Lewis and R. G. Langley, both of San Antonio, for plaintiff in error.
    H. W. Wallace, of Cuero, for defendant in error.
   SMEDLEY, Commissioner.

The Banking Commissioner of Texas on September 5, 1928, closed and took charge of Yoakum State Bank for liquidation and on December 11, 1928 levied an assessment against each stockholder of said bank and every stockholder who had bona fide transferred his stock therein within twelve months previous to September 5, 1928, in an amount equal to the par value of the shares of stock so owned or transferred. This suit was filed by the Banking Commissioner against Philip Welhausen as surviving member of a partnership known as Green & Welhausen, composed of William Green and the said Philip Welhausen, and William D. Green as independent executor of the estate of William Green, deceased, to collect $13,000 the par value of 130 shares of the stock of said bank alleged to have been owned by the said partnership Green & Welhausen and caused by the defendants to be transferred on October 3, 1927 to Welhausen & Driscoll, a partnership composed of Philip Welhausen and M. C. Driscoll.

After trial without a jury the district court rendered judgment that the plaintiff take nothing against defendant Welhausen on account of his having been discharged in bankruptcy and that plaintiff have judgment against William D. Green as independent executor of the estate of William Green for $6500. The Court of Civil Appeals on appeal by both parties, the Banking Commissioner and Green, rendered judgment that the Banking Commissioner take nothing. against Green. 106 S.W.2d 344.

The decision of the Court of Civil Appeals is based upon the fact that the charter of Yoakum State Bank expired more than two years before the Commissioner took possession of the bank, it being held that, after the expiration of the charter and notwithstanding the continued operation of the bank by its officers and stockholders, the Commissioner had no authority to take possession of the bank’s property for liquidation and no authority to levy the assessment against stockholders. Such ruling is clearly in conflict with Shropshire v. Shaw, 121 Tex. 463, 49 S.W.2d 708, and because of that conflict the writ of error was granted.

Most of the facts are the same as were the facts in Shaw v. Green, 128 Tex. 596, 99 S.W.2d 889, and that decision determined favorably to the Commissioner most of the questions presented in this case in the Court of Civil Appeals. There is, however, an important difference between the facts in that case and the facts of the instant case sufficient, in our opinion, to sustain the judgment of the Court of Civil Appeals that the Banking Commissioner take nothing against William D. Green as independent executor of William Green’s estate.

The material facts, most of which were found by the trial court, and the others established by undisputed evidence, are as follows: Yoakum State Bank was chartered under the state banking laws on March 22, 1906, the corporation to continue for twenty years, and engaged in the general banking business until the Commissioner closed it for liquidation on September 5, 1928. The partnership composed of William Green and Philip Welhausen became the owner of record of 130 shares of the bank’s stock of the par value of $13,-000 many years before the bank was closed, and such apparent and record ownership continued until the said shares were transferred on the books of the bank on October 3, 1927 to Welhausen & Driscoll, a partnership composed of Philip Wel-hausen and M. C. Driscoll. This transfer on the books was made at the request of Philip Welhausen and defendant in error William D. Green, independent executor of the estate of William Green. The bylaws of Yoakum State Bank provided that certificates of its stock were transferable only upon the books of the bank.

On July 9, 1924, William Green by written contract agreed to sell to M. C. Driscoll his interest in a large amount of real and personal property owned by the partnership Green & Welhausen, including the 130 shares of stock in Yoakum State Bank. This contract was fully executed on August 23, 1924, when written assignment was made of the shares of stock and the partnership of Green & Welhausen was dissolved. Plaintiff in error in his brief in the Court of Civil Appeals and in his application for writ of error attacked as not supported by evidence the trial court’s conclusion that William Green’s sale of his interest in the bank stock was fully executed on August 23, 1924. It is our opinion, however, after examination of the statement of facts, that the trial court’s conclusion is well supported by the evidence.

William Green, from a time prior to July 9, 1924, down to April 24, 1927, when he resigned, was president of Yoakum State Bank and a member of its board of directors. He died May 10, 1927, leaving a will by which defendant in error William D. Green, his son, was appointed independent executor. The minute books of Yoakum State Bank show that William Green was absent from every meeting of the board of directors of the bank held from March 30, 1926 until the time of his death. The trial court found and the statement of facts shows that William Green on July 6, 1926, attested a statement of the financial condition of the bank as of the close of business on June 30, 1926. He did not sign the statement, however, as an officer, but merely attested it as one of three directors. One of the trial court’s findings as appearing in the transcript is that William Green signed as president of the bank on May 16, 1926 an application to amend the bank’s charter. It conclusively appears, however, from all of the instruments executed in connection with this amendment, set out in full in the statement of facts and all dated in 1925, that these papers were executed and this amendment was made in 1925 and not in 1926. Undoubtedly the date was erroneously written 1926 in the preparation of the findings from the written instruments or in copying the findings into the transcript.

Neither the officers of the bank nor the state officials discovered until July or August, 1927 that Yoakum State Bank’s charter had expired on March 22, 1926. Those in charge of the bank had, notwithstanding the expiration of the charter, continued to operate the bank and to transact business as theretofore, and as if the charter had not expired. On July 21, 1927, the officers and directors and others who apparently were stockholders of the old bank, executed an application for charter and a charter for a bank to be named The Yoakum State Bank, to have a capital stock of $100,000 and presented the application and charter to the state banking board, which on August 9, 1927, considered the application and granted the charter. Thereupon the charter was filed in the Department of Banking and on August 16, 1927 a certified copy thereof, together with a certificate of authority to do business, was delivered to the incorporators and such certified copy of the charter, which contained the. names and addresses of all of the stockholders and the number of shares of stock subscribed and paid for by each of them, was on August 16, 1927 filed in the office of the county clerk of Dewitt County.

In making the application for charter an officer of the bank certified to the Commissioner that there was on hand in the bank subject to check of the proposed new corporation the sum of $100,000 representing the capital stock of the proposed bank, which was to take over the assets and assume the liabilities of the old bank. After the charter was granted, however, the Banking Commissioner discovered that no part of the capital stock had been paid in cash, that the $100,000 was merely a credit entered on the books of the old bank by reason of two notes executed to it by Philip Welhausen and M. C. Driscoll, and that as soon as the new charter was obtained the credit-was reversed and the two notes were cancelled.

After the incorporation, or attempted incorporation, of the new bank all of the books and records of the old bank were kept and used as if there had been no change. No new certificates of stock were ever issued to those who were named as stockholders in the new charter and the bank continued to use the same stock certificate book and the same stock ledger that it always used and thereafter entered in the said stock certificate book and ledger all subsequent sales or transfers of stock, including the transfer on October 3, 1927 of the 130 shares from Green & Welhausen to Welhausen & Driscoll. A new stock certificate book was procured for the new bank and it was found among the books when the bank was closed. No certificates were ever issued from this book. One was prepared to be issued to W. P. Miller for ten shares, but it was not taken out of the book.

It seems that the Banking Commissioner, after the granting of the new charter and after discovering in the fall of 1927 the fact that no part of the capital stock of the new bank had ever been paid, permitted those in charge of the bank to continue to operate it as such and endeavored to induce them, particularly Welhausen and Driscoll, to remove from the bank assets- that he regarded as losses and to place the bank in a more solvent condition. At his insistence assets aggregating approximately $170,000 had been removed from the bank on April 13, 1928. The Commissioner called upon them in January, 1928 to relieve the impaired capital of the. bank and to make payment to the bank of more than $200,000, and in that month something more than $200,000 was paid into the bank by the stockholders. Later, in April, 1928, an additional payment of $200⅛000 was made to the Commissioner for the bank by the officers and others interested in preventing the closing of the bank.

Finally the Commissioner reached the conclusion that the bank was wholly insolvent, took possession of it on September 5, 1928, for liquidation, and on December 11, 1928, levied the assessment on account of which this suit was brought. The Commissioner found, and the trial court found, that the bank was insolvent on September 5, 1928 and for a period of more than twelve months immediately prior to September 5, 1928. The assessment was made against each stockholder and against every stockholder who bona fide transferred his stock within twelve months prior to September 5, 1928.

The estate of William Green cannot be held liable on account of actual ownership of the stock, for Green disposed of all ownership and interest in the stock and in the other partnership assets on August 23, 1924, nearly three years before his death and more than four years before the bank was closed. If there is liability it must be by reason of Green & Welhausen’s apparent ownership of the stock on account of failure to cause the transfer to be made on the bank’s records. Such liability is based upon estoppel. As said by Justice Hodges in the opinion in Chapman v. Becman, Tex.Civ.App., 265 S.W. 243, 244: “It is apparent that the rule which holds stockholders disposing of their shares of stock to a strict compliance with the regulations prescribing the method of making transfers is based upon the principle of estoppel. Presumably those who extend credit to a bank do so, partly, at least, upon the solvency and financial standing of its shareholders; and the records of the corporation are expected to furnish a correct list of those shareholders.” See, also, 3 Ruling Case Law, p. 399, § 28; Michie on Banks and Banking, Perm. Ed., vol. 2, p. 121, § 41.

It is appropriate to consider what a prospective depositor or other person about to extend credit to the bank would have ascertained from the records before October 3, 1927, when the 130 shares were transferred on the stock book from Green & Welhausen to Welhausen & Driscoll. During the period of the bank’s insolvency which, according to the findings of the Commissioner and the trial court, began September 8, 1927, and even before that time and as early as March 23, 1926, such prospective depositor or creditor would have learned from the charter of the old bank that its corporate existence and consequently its right to do business had terminated on March 22, 1926. One dealing with the bank was charged with knowledge of the terms of its corporate charter and consequently knew constructively that it was not authorized to proceed with banking business after the expiration of its corporate existence. Thompson v. Park Savings Bank, 64 App.D.C. 308, 77 F.2d 955. Such depositor or creditor after August 16, 1927, when the charter of the new bank was filed, and which was before the beginning of the period of the bank’s insolvency, would have found in the bank the charter of the new bank and a certified copy of the same in the office of the county clerk, filed there in accordance with the provisions of Article 381 of the Revised Civil Statutes. See Bank of Midland v. Harris, 114 Ark. 344, 170 S.W. 67, 70, 71, Ann.Cas.1915B, 1255. The charter contained a list of all stockholders of the new corporation and a statement of the number of shares owned by each stockholder. It showed the total number of shares to be 1000 and 370 of them to be owned by M. C. Driscoll and 385 of them by Philip Welhausen. • The directors named in the new charter are Welhausen, Driscoll, Treybig, Orth and Hoppe. William Green was dead when the application for the new charter was made. Neither his estate nor his executor is named in the charter of the new corporation as one of the stockholders. The depositor or other creditor would have found that those who were actively in charge of the operation of the bank after the expiration of the old bank’s charter until the bank was closed on September 8, 1928, principally Welhausen and Driscoll, were the same persons as those who applied for the charter for the new bank, the same persons who were parties to the subterfuge with respect to the payment for the capital stock of the new bank.

It is true that those who conducted the bank during that time kept and used the stock certificate book and the stock ledger of the old bank, that is, they made entries in such books showing transfers of the stock in the old bank. Plaintiff in error concedes in one of his briefs that after the bank’s charter expired no transfer of stock, as stock, could thereafter be made. But whatever legal effect may be given to such transfers so .made of stock in the old bank they would have, under the facts of this case, little, if any, significance in the matter of apparent ownership, for one about to become a depositor or other creditor, on finding that the charter of the old bank had expired, would be interested in stock ownership in the new bank and not in transfers of shares of stock in the old bank. Failing to find a stock certificate book or stock ledger showing the names of the owners of stock in the new bank, he would reasonably rely upon the new charter for information as to stock ownership in the new corporation. A person dealing with the bank after the charter had expired and who found in the bank the stock records of the old corporation showing Green & Welhausen as owners of the 130 shares would have been justified in relying upon such records as evidencing that partnership’s ownership of the stock at the time the bank’s charter expired, but he could not reasonably believe that such partnership had become the owner of a like amount of stock in the new corporation when the charter of the new corporation showed that it had not.

In giving effect to the charter of the new corporation and the stock ownership disclosed by that charter as bearing upon the question of apparent ownership of stock by the partnership Green & Welhausen, we are not unmindful of the fact that in Shaw v. Kopecky, 27 S.W.2d 275, application for writ of error refused, the Court of Civil Appeals held among other things that the new corporation never acquired a legal existence because its capital stock was not paid. That was a suit by the Banking Commissioner to collect one thousand dollars from Kopecky as the alleged owner of 10 shares of stock in the new corporation, The Yoakum State Bank, under the same assessment as that herein sued upon. The Court of Civil Appeals affirmed, on two grounds, the trial court’s judgment' in favor of Kopecky, first, because the new bank was never legally incorporated and second, because Kopecky never became the owner of stock in the new corporation. Welhausen conditionally donated to Kopecky a certificate for 10 shares of stock in the old bank. For this stock Kopecky paid nothing and he neither intended to retain nor did he retain the certificate that was delivered to him.

The question under consideration in the instant case is not as to the legality of the new bank’s incorporation and is not as to any actual ownership of stock. It is one of apparent ownership, that is, whether the records appeared to one -dealing with the bank to reflect ownership of the 130.shares of stock by the partnership Green & Welhausen. It seems that the Banking Commissioner, even after his discovery of the fact that the capital stock of the new corporation had not been paid, treated the bank as a corporate body having banking privileges. He must have recognized the new charter as sufficient at least to create a de facto corporation, for he knew that the bank could not be operated under the old charter, which had expired. He permitted the bank to remain open and to transact a banking business and' required Driscoll, Welhausen and others to pay into’ the bank more than $400,000 in order to relieve the impaired capital. By filing and prosecuting the Kopecky suit the Banking Commissioner endeavored to hold Kopecky liable as a stockholder in the new corporation. We repeat, therefore, in view of these facts and the other facts above discussed, that to a depositor or creditor the apparent ownership of the stock in the institution would be that set out in the new bank’s charter. One becoming a depositor or other creditor of the bank after the expiration of the charter of the old bank and after the filing of the new charter could not reasonably claim, or show by a supposed examination of the records, that he had been misled into believing that the partnership Green & Welhausen still owned stock in the institution, nor could he reasonably contend that he extended credit upon the solvency and financial standing of that partnership or of Green’s estate.

It is our opinion, therefore, that the peculiar circumstances of this case are such that apparent ownership of the 130 shares of stock by the partnership Green & Welhausen did not continue after the time when the charter of the new bank was filed (August 16, 1927) and that for determination of the liability of the estate of William Green on account of apparent ownership of the stock by that partnership, the facts are in principle the same as if the stock had been transferred on the records of the bank from Green & Welhausen to Welhausen & Driscoll more than twelve months prior to September 5, 1928. It follows that the estate of William Green should not be held liable for the assessment levied by the Commissioner.

Plaintiff in error cites authorities which hold that, although there may have been illegality or irregularity in the manner of the organization of a corporation or although the corporation may have been dissolved by the expiration of the period limited by the charter for its corporate existence, nevertheless officers and stockholders who recognize its existence as a corporation and treat it as such and also creditors and other persons who deal with it as a corporation are estopped to deny its corporate existence. Among the cases cited are American Salt Company v. Heidenheimer, 80 Tex. 344, 15 S.W. 1038, 26 Am.St.Rep. 743; Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168; Thompson v. Park Savings Bank, 604 App.D.C. 308, 77 F.2d 955; Elson v. Wright, 134 Iowa 634, 112 N.W. 105. The reason supporting the principle is stated in Casey v. Galli, supra [94 U.S. 680, 24 L.Ed. 168], to be that such persons “are estopped to deny the reality of the state of things which they have made appear to exist, and upon which others have been led to rely”.

It may be that liability could be imposed upon the estate of William Green by the application of this principle, if he had actually participated in the operation of the bank after the termination of the charter and when the bank was insolvent, or if he or his executor had been a party to what the Court of Civil Appeals in the Kopecky case, supra, described as the “legal legerdemain” by which the charter of the new bank was procured. But neither William Green nor defendant in error, his independent executor, is shown by the record in this case to have participated actively in the operation of the bank after its charter expired or to have had any part in causing the issuance of the new charter. Certainly the record contains no evidence of any act on the part of either of them within the period of the bank’s insolvency upon which anyone becoming a depositor or other creditor reasonably could have relied to his injury.

William Green continued to be nominally the president and a director of the bank until April 24, 1927. He died May 10, 1927, which was about sixteen months before the bank was closed. It is shown by the record that he never attended a directors’ meeting, even though many were held, after the bank’s charter expired. Although plaintiff in error had possession of the records of the bank from the time when the bank was closed to the time of the trial, he was not able to produce, that is, he did not produce, any record evidence, save one instrument, indicating that William Green participated in any way in conducting the bank after i'ts corporate existence terminated. That one instrument was a report of the condition of the bank made July 7, 1926. It is a significant fact that Green did not execute the report as president, although he was nominally president then. It was signed and sworn to by M. C. Driscoll as vice-president and B. H. Treybig as cashier, purporting to be their act for the bank and as its officers. Green attested it as correct, signing with two others as directors.

The single act of William D. Green, independent executor, in requesting on October 3, 1927 the transfer of the 130 shares of stock on the records of the bank from Green & Welhausen to Welhausen & Driscoll did not render the estate of Wil-' liam Green liable for the assessment on the ground of estoppel. The only effect that such action could have upon persons thereafter becoming depositors or creditors would be to cause them to believe that the partnership Green & Welhausen was not a stockholder.

The decision made herein is based upon the peculiar facts of this case, which is a suit to determine the liability of the estate of William Green. It is not intended to express any opinion as to the liability of anyone whose relation to or connection with the bank was different from that of William Green.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: SHARP, Justice.

text:
    STANOLIND OIL & GAS CO. et al. v. STATE et al.
    No. 7412.
    Supreme Court of Texas.
    Nov. 22, 1939.

      Turner, Rodgers & Winn, of Dallas, Clay Tallman and Donald Campbell, both of Tulsa, Okl., Collins, Jackson & Snodgrass, of San Angelo, Cantey, Hanger, McMahon, McKuight & Johnson, Warren Scarborough, Gillis A. Johnson, and Ira Butler, all of Fort Worth, Henry H. Brooks, of Austin, and Geo. T. Wilson, of San Angelo, for plaintiffs in error.
    Win. McCraw, Former Atty. Gen., Ii. Grady Chandler, of Austin, and Gerald C. Mann, Atty. Gen., for defendants in error.
    J. B. Dibrell, Jr., of Coleman, John Sayles, of Abilene, Bryan, Suhr, Bering & Bell and E. H. Suhr, all of Houston, and Wagstaff, Harwell, Douthit & Alvis, of Abilene, amici curise.
   SHARP, Justice.

This suit was filed by the State against the Stanolind Oil & Gas Co., the Cardinal Oil Co., the Dogie Oil Co., George D. Morgan, J. H. Arthur, Bob Reid, H. W. Compton, M. D. Bryant, J. H. Tyler, Eulia B. Tyler, and V. C. Hogan, to recover a tract of land 122.5 varas wide by 1208.9 varas long, lying between the west line of Tyler Survey No. 1 and the east line of T. C. Ry. Co. Survey No. 104, in Pecos County, Texas. It was contended by the State that the land sued for was vacant, but was subject to the rights of certain defendants to purchase or lease same for oil and gas producing purposes; and all the parties asserting such rights were made parties to the suit, so that, in addition to establishing that the land was not included in prior grants, the relative rights of certain of the defendants might be determined, as between themselves and as between themselves and the State. Upon the trial of the case, and based upon an instructed verdict, the trial court entered judgment. This judgment provided in effect as follows:

(a) That the State recover the entire tract of 122.5 varas wide by 1208.9 varas long.
(b) That the application for lease upon such land on behalf of Stanolind Oil & Gas Co. was invalid.
(c) That Bryant had a prior right to obtain from the State a mineral lease under Article 5421c, Vernon’s Ann.Civ.St., upon the most westerly and most northerly part of that area recovered by the State. The area awarded to Bryant was a strip off the west side thereof 50.9 varas wide east to west and along the north side of the area of 45.9 varas wide from north to south.
(d) That the Cardinal Oil Co. had a valid lease upon a strip approximately 52.6 varas wide at the south end and 50.3 varas wide at the north end, immediately east and south of the area awarded to Bryant; which lease had been granted upon the applications of Bob Reid and J. H. Arthur.
(e) That the Dogie Oil Co. had a valid lease upon an area 19 varas wide and immediately east of the Cardinal Oil Co. area. Both the Dogie Oil Co. and the two Cardinal Oil & Gas Co. leases together extended north and south 1163 varas, thus leaving the strip along the north edge of the area recovered by the State 45.9 varas wide, which was included in the area awarded to Bryant. (1208.9 minus 1163 leaves 45.9).
(f) That Tyler was not entitled to assert a prior right to purchase the area awarded the State under his application for inquiry .under Article 5323, Revised Civil Statutes, and that he was not entitled to a lease upon the area, or any part thereof, under the 1931 Leasing Act (Vernon’s Ann.Civ.St. art. 5421c).

From this judgment both the Stanolind Oil & Gas Company and Tyler duly perfected appeals to the Court of Civil Appeals; and that court affirmed the judgment of the trial court, denying the application of Tyler to purchase and to lease, and also denying the Stanolind application to lease, and in all other respects reversing and remanding the cause. 114 S.W.2d 699.

Stanolind Oil & Gas Company contends that the trial court erred in not sustaining its plea in abatement grounded upon the nonjoinder of certain parties claiming interests in Surveys 104 and 34⅜. The state and its privies contest this plea on the following grounds: (1) It was not filed in due order of pleading, and was waived; (2) it was defective, in that it did not allege the nature and extent of the interest claimed by the nonjoinder parties; (3) the plea was properly overruled, because no evidence was offered in support of it; and (4), that as to the Stanolind Oil & Gas Co. the overruling of such plea -was harmless.

The following undisputed facts appear: On May 13, 1935, Stanolind Oil & Gas Co. was served with citation, and on February 21, 1936, it filed its original answer; and no mention was made of a nonjoinder of parties. On April 11, 1936, the Stanolind Oil & Gas Co. filed an amended answer to the merits, without mentioning this ground of abatement. On April 20, 1936, that Company presented, offered evidence in support of, and procured a ruling upon its motion for continuance, before presenting this plea in abatement, which was not filed or presented until April 20, 1936.

The Stanolind Oil & Gas Co. in its supplemental plea in abatement for nonjoinder of certain parties as defendants herein, alleged in substance as ground therefor that James Cornell and others “now assert the ownership of interests in and to section 104”; that Ida Mae Ramsey and others “assert and claim an interest to the minerals in and under section 104”; that Marathon Oil Co. holds and asserts an oil and gas lease upon a portion of Section 34½; and that the Yates Estate holds and asserts title to Section 34½.

The action of trespass to try title embraces all character of litigation that affects the title to real estate. Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778, 31 Am.St.Rep. 80; Moody v. Holcomb, 26 Tex. 714, 719; Titus v. Johnson, 50 Tex. 224, 237; Rains v. Wheeler, 76 Tex. 390, 393, 13 S.W. 324; Edrington v. Butler, Tex.Civ.App., 33 S.W. 143; 7 Tex.Jur., p. 246, sec. 35, and cases cited.

The following articles of the Revised Civil Statutes define who shall be proper parties in a trespass to try title suit:

Article 7370 reads: “The defendant in the action shall be the person in possession if the premises are occupied, or .some person claiming title thereto in case they are unoccupied.”

Article 7371 reads: “The plaintiff may join as a defendant with the person in possesson, any other person who, as landlord, remainderman, reversioner or otherwise, may claim title to the premises, or any part thereof, adversely to the plaintiff.”

It is also well settled that disputes as to boundaries may be determined in trespass 'to try title suits. Weaver v. Vandervanter, 84 Tex. 691, 19 S.W. 889; Mahurin v. McClung, Tex.Civ.App., 34 S.W. 1046; Roundtree v. Haynes, Tex.Civ.App., 73 S.W. 435; Nye v. Hawkins, 65 Tex. 600; 7 Tex.Jur., p. 246, sec. 35.

In 32 Tex.Jur., p. 13, sec. 9, it is said: “A necessary party is one who is so vitally interested in the object or subject matter of the suit that a valid judgment cannot be rendered without his presence.”

In 32 Tex.Jur., p. 34, sec. 21, it is said: “The question of proper joinder often rests in the discretion of the court, the exercise of which will not be revised unless palpable abuse is shown.”

An objection that there is a. defect of parties should ordinarily be raised at the earliest opportunity; otherwise the objection will be waived. However, an exception to this rule exists when it is shown that there is a nonjoinder of essential parties. 32 Tex.Jur., p. 140, sec. 98.

The Stanolind Oil & Gas Co. contended that the strip of land involved here was vacant public land, and it claimed a preference right to lease same from the State. The land was surveyed and its four corners marked on the ground by the Stanolind Oil & Gas Co. That company by its acts and admissions represented that it was vacant land. The State also claimed that the land was vacant and subject to lease, and filed this suit against the defendants. The nature of the suit was to determine, as between the parties in this suit, the respective rights of the parties claiming such land or parts thereof. The Stanolind Oil & Gas Co. claimed it all by virtue of its application. Tyler claimed the land by virtue of his letter of inquiry. And other parties claimed certain rights in part of such land, as above described.

This is not a suit for partition, nor is it a suit for the reformation or a cancellation of the lease to Stanolind Oil & Gas Co. on Survey 104. Nor is the State attacking any lease executed by it on this land. The State, as plaintiff, and Bryant and others, as cross acting defendants, seek judgment in the statutory action of trespass to try title against the Stanolind Oil & Gas Co., and none of the others not parties to this suit will be bound by any judgment rendered here against the Stanolind Oil & Gas Co. Stewart v. Kemp, 54 Tex. 248; Heirs of Nancy Tevis v. William E. Armstrong and J. J. French, 71 Tex. 59, 9 S.W. 134; Alford v. Cole, Tex.Civ.App., 65 S.W.2d 813; Johnson v. Moss, Tex.Civ.App., 108 S.W.2d 1110. This is especially true since the decision here in no way adjudicates the rights of those not parties to this suit.

It clearly appears that the parties suggested are not indispensable parties to this suit, and that their claims or rights in this land are not of such nature that a final decree, fixing the rights and interests in the land of all parties before the court, would be wholly inconsistent with equity and good conscience. It was the duty of Stanolind Oil & Gas Co., in filing such plea in abatement suggesting the nonjoinder of certain parties as defendants, to give the court definite allegations as to the parties and the interests claimed by them. State v. Goodnight, 70 Tex. 682, 11 S.W. 119; Good v. Stansberry, Tex.Civ.App., 240 S.W. 958, 960.

Judge Gaines, in rendering the opinion of this Court in the Goodnight Case, in discussing the essential allegations of a plea in abatement for the nonjoinder of parties, said [70 Tex. 682, 11 S.W. 120] : “A plea in abatement should not only show the grounds upon which the suit should be abated, but should also give the plaintiff a better writ; that is, it should not only show that the suit is improperly brought, but also how it should have been brought. The plea in this case says that others are interested in parts of the fences, but does not allege in what parts each have an interest, nor does it state the nature of that interest. A pleading should always state facts, and not conclusions of law, and a plea in abatement, which sets up a non-joinder of parties defendant should show definitely and specifically the nature and extent of the interest of such person who is claimed to be a necessary party.”

Article 1992 of the Revised Civil Statutes reads: “Before a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but not at a time nor in a manner so as to unreasonably delay the trial of the case.”

The rule is generally accepted that appellate courts will not reverse the rulings of the trial court relating to non-joinder of parties, when it appears that no prejudice to the complaining party has resulted. 32 Tex.Jur., p. 140, sec. 99. Thus it will be seen that the trial court, in the exercise of its power and discretion, overruled the plea in abatement for nonjoinder of parties. In view of the record in this case and the judgment rendered, if it could be said that it was error for the trial court to overrule such plea, such alleged error was harmless; because it is not shown that by such ruling the rights of the Stanolind Oil & Gas Co. in the land involved here have been prejudiced. This contention is overruled.

The State in substance contends that the Court of Civil Appeals erred in reversing and remanding this cause for a new trial upon the issue of vacancy, and in holding that the trial court had erred in not submitting to the jury an issue as to the true location on the ground of the S. E. corner of Survey 70, among others, for the following reasons:

1. Because such issue was not raised by the evidence before the trial court, in that the only surveyor who testified with respect to the location of said corner was H. L. George, the employee of the Stanolind Oil & Gas Co., and its alter ego in this transaction, and because of the acts and admissions of the Stanolind Oil & Gas Co. of the correctness of such location by its application for lease of this land.
2. Because the Stanolind Oil & Gas Co., neither in the trial court nor in this court, until after the submission of this cause, contended that the car spring corner was the true southeast corner of Survey 70; and thus the Stanolind Oil & Gas Co. had waived or abandoned any right to claim error because of the failure to submit such issue to the jury.
3. Because the testimony of the witness George, as to the location on the ground of the S. E. corner of Survey 70, and the application for lease previously filed by the Stanolind Oil & Gas Co., in which such location of such corner was accepted and recognized by it, constituted an admission by the Stanolind Oil & Gas Co. that this area was vacant land, which justified and compelled the action of the trial court in directing a verdict against the Stanolind Oil & Gas Co.

This land is part of the Yates Oil field in Pecos County. Since the discovery of oil in that field, many cases have arisen relative to boundary lines. Many surveys have been made, and many sketches and maps of the land in this vicinity have been made and used in the trials of the cases. Some of the maps and sketches have been inserted in the opinions of courts in the following cases: Pandem Oil Corporation v. Goodrich, Tex.Civ.App., 29 S.W.2d 877; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Stanolind Oil & Gas Co. v. State, 129 Tex. 547, 101 S.W.2d 801.

The following sketch is inserted in this opinion so that the reader may see the lines and corners of the land discussed herein; however, it does not purport to show accurately the lines of the various other surveys shown therein:

The I. & G. N. river surveys in Block 1 were projected from corners placed along the Pecos River by Jacob Kuechler. Runnels County School Land Survey No. 3 and T. C. Ry. Co. Surveys 101, 102, 103, and 104 are office surveys. T. C. Ry. Co. Survey 101 was patented on corrected field notes for 407 acres on April 14, 1894. Corrected field notes for Survey No. 102 were filed in the Land Office March 3, 1893. The adjoining survey No. 103 was patented on corrected field notes April 14, 1894. Adjoining Survey No. 104 was patented on corrected field notes for 407 acres on August 7, 1929. Patent was issued to Survey No. 34½ April 13, 1927.

On December IS, 1926, Tyler filed in the land office a letter of inquiry, under Article 5323 of the 1925 Revised Civil Statutes, looking to the purchase of an area which he said was vacant State land east of Section No. 104. The Land Commissioner answered Tyler’s inquiry, to the effect that there was no vacancy in that area. Tyler filed suit against the County Surveyor of Pecos County, under Article 5323, to establish the vacancy. This suit was never tried. In 1933 the Land Commissioner, on advice from the Attorney General, changed his ruling as to a vacancy, and suggested that Tyler have a surveyor return field notes of the area. Field notes were returned, and patent was issued to Tyler May 31, 1934, covering a tract of land 114 varas wide and containing 24½ acres. Tyler accepted the patent, and proceeded to develop the land for oil.

On January 29, 1934, V. C. Hogan made application for survey to lease an area of land. This application was filed in the general land office January 30, 1934. Hogan was finally notified by the Land Commissioner on April 12, 1935, that an oil and gas lease would be issued to him upon certain terms set out in the letter of notification. The lease was issued to Hogan April 12, 1935, and Hogan assigned the lease to George D. Morgan, and Morgan assigned the lease to Dogie Oil Co.

Bob Reid filed an application for survey to lease the area afterwards included in a lease to Cardinal Oil Co. on November 5, 1934, in the office of the County Surveyor of Pecos County, and on January 23, 1935, in the general land office. Finally the field notes were filed under the Reid application in the general land office on January 23, 1935. Corrected field notes under this application were filed in the land office on March 19, 1935. Reid’s application was assigned to H. W. Compton, and Compton assigned his rights under this application to Cardinal Oil Co. A mineral lease was issued under the application and survey on March 19, 1935, to the Cardinal Oil Co.

J. H. Arthur filed application for survey to lease the area afterwards included in an oil and gas lease to Cardinal Oil Co. This application was filed with the county surveyor, and later in the general land office, January 23, 1935. Field notes were filed in the county surveyor’s office under the Arthur application and in the general land office on March 9, -1935. Corrected field notes were filed in the county surveyor’s office and on March 19, 1935, in the general land office. J. H. Arthur assigned his rights to H. W. Compton, and Compton assigned his rights to Cardinal Oil Co. The corrected field notes were approved, and a mineral lease was issued by the State to Cardinal Oil Co., covering the Arthur tract, on March 19, 1935.

All cash payments provided for in the three leases have been made. A well was finished on the tract covered by the Hogan lease in August, 1935, as a producer. At the time of the trial wells had been finished on both the Reid and the Arthur tracts, now held by the Cardinal Oil Co.

Stanolind Oil & Gas Co., through H. L. George, a licensed State land surveyor, filed an application for survey to lease in the county surveyor’s office September 26, 1934, and in the land office January 23, 1935. Field notes prepared by George for Stanolind Oil & Gas Co. were filed with the county surveyor January 16, 1935, and in the land office January 21, 1935.

M. D. Bryant filed an application with the County Surveyor on January 14, 1935, and in the land office April 24, 1935. Field notes were filed for Bryant with the County Surveyor on April 2, 1935, and in the land office April 24, 1935.

Tyler filed an application for survey to lease March 18, 1935, with the County Surveyor. This was filed in the land office February 3, 1936.

Summarized, it shows that Tyler first filed with the land office a letter of inquiry on December 15, 1926. It is undisputed that field notes were returned and patent was issued to Tyler May 31, 1934, covering 24½ acres, and that Tyler accepted the patent for such land.

The next application in point of time was filed by Hogan, and the lease issued under his application dated April 12, 1935.

Next to the Hogan application in point of time was the application filed by George for Stanolind Oil & Gas Co.

Next in point of time after the Stanolind Oil & Gas Co. application, and the next valid application after the Hogan application, was the Arthur application, filed with the county surveyor and in the land office January 23, 1935. A mineral lease was issued under this application by the land office, dated March 19, 1935, to the Cardinal Oil Co.

The Bob Reid application was filed with the county surveyor and in the land office January 23, 1935. The Reid and Arthur applications each cover specific land, and do not conflict with each other. Lease was issued under this application March 19, 1935, to the Cardinal Oil Co.

Next after Reid’s application for survey to lease, Bryant filed an application with the county surveyor and with the land office April 24, 1935. His field notes were filed with the county surveyor and in the land office April 24, 1935.

Next in point of time after the Bryant application, Tyler filed his application for survey to lease with the county surveyor March 19⅜ 1935, and placed it in the land office August 14, 1935. Both the Bryant and the Tyler applications reached the land office after the Reid and the Arthur and the Hogan leases had all been issued. The land, covered by these leases was appropriated by the applications for a survey to lease.

The State filed this suit against the Stanolind Oil & Gas Co. and others as described above, and alleged that it was the owner of the following described property : ■

“Beginning at the southwest corner of the John H. Tyler Survey No. 1, an angle iron in the most southerly north line of the Yates Survey No. 34⅜, which said angle iron is 114 varas west and 215 varas south of a mound of stone on a flat rock marked ‘SE 104 D O D Oct. 15, 1918’;
“Thence North with the West line of the said John H. Tyler Survey No. 1, 1208.9 varas to the Northwest corner of said Tyler Survey, an iron in a mound of stone for the Northeast corner of this vacant area sued for;
“Thence West 250 varas with a westward projection of the North line of the said John H. Tyler Survey No. 1 to the intersection of that projection, with the East line of Survey 104, T. C. Ry. Surveys, á point for the Northwest corner of this vacant area sued for;
“Thence South with the East line of said Survey 104, on south with a southward projection of said East line of Survey 104 to its intersection with the North line of the said Yates Survey No. 34½, a point for the southwest corner of this vacant area sued for;
“Thence East with said North line of Survey 34½ to the place of beginning at the southeast corner of the vacant area sued for;
“For convenience in making the allegations hereinafter set forth, the above described tract of land includes three tracts of land hereinafter described, and also an additional area to the west of said following three described tracts of land:
“First Tract: The North one-half of the following described tract: A strip of land being immediately West of the third tract hereinafter described, and being approximately 50 varas wide east and west, and known as the Arthur filing.
“Second Tract: The South one-half of the following described tract: A strip of land being immediately west of the third tract hereinafter described, and being approximately 50 varas wide east and west, and known as the Bob Reid filing.
“Third Tract: A strip of land bounded on the east side of the west line of the John H. Tyler Survey No. 1, being approximately 19 varas wide from east to west, and known as the Hogan filing.”

The Stanolind Oil & Gas Co. owns the mineral lease on Survey 104 or part thereof, and there is no dispute about the west line of Tyler No. 1. Thus we are called upon to decide the rights of the parties to this suit in the tract of land sued for by the State. The controlling question is: Is the land in controversy part of Survey 104, or is it vacant land? If it is part of Survey 104, it is not vacant public land. If it is vacant land, the Stanolind Oil & Gas Co. claims same by virtue of having applied for the lease thereof. Bryant, Cardinal Oil Co. and Dogie Oil Co. claim same by virtue of prior valid applications, which are described above, and for which leases were executed by the Honorable J. H. Walker, General Land Commissioner. Tyler claims to have prior rights over all others by reason of filing his application prior to the others. Stanolind Oil & Gas Co. claims that this Court has already decided the merits of this case in its favor, and among the cases cited in support of such contention are: Federal Royalty Co. v. State, 128 Tex. 324, 98 S.W.2d 993; Stanolind Oil & Gas Co. et al. v. State of Texas, 129 Tex. 547, 101 S.W.2d 801, 104 S.W.2d 1; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Douglas Oil Co. v. State of Texas, 122 Tex. 377, 61 S.W.2d 807, Id., Tex.Civ.App., 70 S.W.2d 452.

We shall not discuss each of the decisions cited, but will merely refer to Stanolind Oil & Gas Co. et al. v. State of Texas, 129 Tex. 547, 101 S.W.2d 801, 104 S.W.2d 1, and Federal Royalty Co. v. State of Texas, 128 Tex. 324, 98 S.W.2d 993, for a discussion of the questions decided therein.

The case of Stanolind Oil & Gas Co. et al. v. State of Texas, supra, involved a strip of land lying between the south line of Surveys 101, 102, 103, and 104, and the north line of Yates Survey No. 34½. The question raised by the State in that case was that said strip of land was vacant public land. The Stanolind Oil & Gas Co. in that suit invoked the rule that the State was es-topped on account of its actions to claim such vacancy. The ground for such contention was that the State contended that the car spring corner was the S. E. corner of Survey 70. The trial court instructed a verdict against the State. The Court of Civil Appeals remanded the case, on the ground that the location of the S. E. corner of Survey 70 was an issue of fact for the jury to determine. State v. Stanolind Oil & Gas Co., 96 S.W.2d 297. This Court held that the trial court correctly instructed a verdict for the defendants and against the State, and reversed the judgment of the Court of Civil Appeals, and affirmed the judgment of the trial court. 129 Tex. 547, 101 S.W.2d 801. In that opinion this Court held that the State, by virtue of its pleadings and testimony, was estopped to deny that the S. E. corner of Survey 70 was not at the car spring corner, and also held that there was no vacancy between Yates Survey 34½ and the south line of Surveys 101 to 104, as contended for by the State. The pendency of this suit was called to the attention of this Court in motions for rehearing, and this Court expressly declined to determine the questions involved in this suit. 129 Tex. 547, 104 S.W.2d 1.

The State and those in privity with it invoked in this case the rule that the Stanolind Oil & Gas Co., on account of its admissions and its acts with respect to this land, and the positions taken by it with the State in the courts, is not in position to claim that this land is not vacant public land and not subject to lease by the State for mineral purposes to those legally entitled thereto; and, furthermore, in view of the record in this case, there were no issues of fact to be determined. As a basis for such contention, some of the controlling facts are related below.

An application for survey of this land was filed by the Stanolind Oil & Gas Co., by II. L. George, its authorized agent, with the County Surveyor of Pecos County on the ,26th day of September, 1934, the material parts of which read:

“By virtue of an Act approved May 29, 1931, I hereby apply for a survey of the following described area believed to be un-surveyed land belonging to the public free school fund with a view to obtaining a mineral lease under said Act.
“Situated in Pecos County, Texas, about 56 miles from the county site. Said tract is bounded as follows:
“On the North by Runnels County School land No. 3
“On the East by John Ii. Tyler No. 1, S. F. 13476
“On the South by Survey No. 34½, I. G. Yates
“On the West by Survey No. 104, T. C. Ry. Co., Block 194.”

Based upon such application to survey and lease such land, H. L. George certified that he surveyed such land, and had sent to the General Land Office a plat and field notes of such land. The field notes read as follows:

“Field Notes of a survey of 26.23 acres of land made for Stanolind Oil & Gas Co. by virtue of their application to lease filed Sept. 26, 1934.
“Variation 10 degrees 45" E. situated in Pecos County, about 58 miles N. E. from county site, beginning at an angle iron in stone mound, set for the S. W. cor. of John H. Tyler #1 S. F. 13476, in the N. line of Sur. #34½, for S. E. corner of this survey.
“Thence North with the West line of said John H. Tyler Survey 1209 varas to an iron pin in st. md. set for the N. W. cor. of said John IT. Tyler Survey, in the South line of Runnels County School Land #3, for N. E. cor. of this survey.
“Thence West 122.S varas to stake set for the N. E. cor. of Sur. #104, Blk. 194, T. C. Ry. Co., and the N. W. cor. of this survey.
“Thence South with the East line of said Sur. #104, 1209 varas to a stake set for the S. E. cor. of said Sur. #104, and the S. W. cor. of this survey.
“Thence East 122.5 varas' to the place of beginning.”

The Hon. J. H. Walker, Land Commissioner, rejected such application as being void.

During the trial George also testified at length with reference to the location of the S. E. corner of Survey 70 and his running the various lines to establish the field notes in the application to lease by the Stanolind Oil & Gas Co. He drew a plat, showing how he had arrived at his conclusions. He stated that the tract of land in controversy was not within Survey 104, but that it lay east of it; that the area had been run out from the S. E. corner of Survey 70 as identified and reported by him as agent of the Stanolind Oil & Gas Co. He also testified that the East line of Survey 104 was located as stated by him. He also testified that he had located Survey 34½ on the ground, and after coming 7600 varas east from the southwest corner of R. C. S. L. No. 3 located with reference to the point he had determined to be the true S. E. corner of Survey 70, he was 236.5 varas west of the most northerly west line of Survey 34½; and after deducting 114 varas, which is the width of Tyler No. 1 survey, there remained a vacancy.

It clearly appears that George was the agent of the Stanolind Oil & Gas Co., and was authorized to act as such agent in this matter. His testimony was offered for the purpose of showing that this was vacant land; and Stanolind Oil & Gas Co. did not undertake to contradict his testimony. There is no reservation ■ or qualification in the application of the Stanolind Oil & Gas Co., or in the testimony of George. In short, whether the real S. E. corner of Survey 70 is located at the car spring corner or at the place designated by George becomes immaterial, as between the parties here, because-the Stanolind Oil & Gas Co. has, by its acts and the testimony introduced, admitted that the land in dispute lies east of Survey 104 and is not in its lease, is vacant, and belongs to the State.

The trial court had before it the application made by the Stanolind Oil & Gas Co. for a lease on this strip of land, based upon the claim that the east line of Survey 104, located in this manner, was 122.5 varas west of the west line of Tyler Survey No. 1. George was the only surveyor who testified with respect to the true location of the S. E. corner of Survey 70. The Stanolind Oil & Gas Co. offered no witness who testified to the contrary, but based its defense to the claim of vacancy upon the ground that Dod’s monumented corner for R. C. S. L. No. 3 was controlling, and that the true location of the S. E. corner of Survey 70 was an immaterial issue. The trial court instructed a verdict against the Stanolind Oil & Gas Co., and entered judgment accordingly.

The judgment of the trial court further provides: “It has not been necessary in determining this controversy to locate on the ground either the south line of Runnels County School Land Survey No. 3, nor the east line or eastern corners of Survey No. 104, T. C. Ry. Co. Surveys, other than to determine that such lines and corners are not located as to conflict with the area herein adjudged to the State, which fact has been established here by the undisputed evidence.”

The trial court, after establishing the rights of the State in the entire tract, 122.5 varas in width and 1208.9 varas in length, as not included in prior grants, held the application for lease upon such land by the Stanolind Oil & Gas Co. to be invalid ; and, furthermore, after holding against Tyler in favor of Cardinal Oil Co. and Dogie Oil Co., held that Bryant had a superior right to obtain from the State a mineral lease off the west side of this tract, 50.9 varas in width and bounded as shown by the sketch inserted herein. After the rendition of the judgment by the trial court, the Land Commissioner executed a lease to Bryant covering this area.

The Court of Civil Appeals correctly held that when Tyler accepted the patent issued by the State to Tyler’s Survey No. 1, under his application, his ac-ceptauce of the patent exhausted all rights under such application. Miller v. Yates, 122 Tex. 435, 61 S.W.2d 767; Holmes v. Yates, 122 Tex. 428, 61 S.W.2d 771. This holding disposed of the rights acquired by Tyler in his original inquiry filed December 15, 1926.

The Court of Civil Appeals also correctly held that the filing made by Stan-olind Oil & Gas Co. was invalid, because it was made by a licensed State land surveyor, in violation of Articles 5272-5281, Revised Civil Statutes.

Chief Justice McClendon, speaking for the Court of Civil Appeals, clearly disposed of this question in the following language [114 S.W.2d 704] :

“The Stanolind urges that, in any event, it was entitled to an award under its application to lease. The state contends that this application was void because George, by whom it was made] was a licensed land surveyor. We sustain the state’s contention in this regard. The powers, duties, and obligations of licensed land surveyors are set forth in chapter 2, title 86, R. C. S. Particularly we refer to articles 5272-5281, inclusive. From these, it will be observed, a licensed land surveyor is a public official, required to take an oath of office and have an official seal. The license may be revoked if the licensee ‘shall be found by the Board to have unlawfully given information concerning any undisclosed public land or to have been directly or indirectly interested in the purchase' or in the acquisition of title to any public land.’ Article 5273. Article 5278 requires that: ‘If a licensed surveyor shall discover an undisclosed tract of public land he shall not make known that fact to anyone except to such person as may have it enclosed, but he shall forward to the Land Office a report of the existence of such tract and the acreage therein, and its probable value.’
“The policy of the state with reference to dealings by its public surveyors in its public lands is announced in the following cases: Wills v. Abbey, 27 Tex. 202; Cotulla v. Laxson, 60 Tex. 443; State v. Thompson, 64 Tex. 690; DeShazo v. Eubank, Tex.Com.App., 222 S.W. 976. All of the acts of such surveyors are held to be void where they have any interest in the subject matter involved.
“The Stanolind contends that the principle announced in these cases applies only where the surveyor has some interest, direct or indirect, in the ultimate title emanating from the state; that George had no such interest, nor in fact any interest in the application, but was only acting as agent for the Stanolind. We think it clear in principle that his disqualification to act as principal in the application also disqualified him from acting as agent. Moreover, since the land here involved was not inclosed, it was a breach of official duty to disclose to any one but the land commissioner the fact that the land was public domain. The application by him on behalf of the Stanolind manifestly constituted such breach of official duty. By the express terms of the statute creating such duty, he thereby became the agent of the state to conceal the facts from the Stano-lind and reveal them to the proper state official. He could not, therefore, act for the Stanolind, whose interests were antagonistic to those of the state.”

The Court of Civil Appeals also correctly held that the trial court did not err in overruling a plea in abatement filed by the Stanolind Oil & Gas Co., based upon the pendency of a suit filed by that Company in the Federal Court at El Paso against the State’s lessees under the mineral leases. The State was not a party to that suit, and unless the State gave its consent it could not be made a party to that suit. Such consent was not given, and the State had the right to file this suit, in order to adjudicate the rights of the parties to this tract of land.

Stanolind Oil & Gas Co. now contends that an issue of fact was presented to the trial court with respect to the trae location of the S. E. corner of Survey 70, and the Court of Civil Appeals reversed this cause on that contention.

The question presented to the trial court for decision was as to whether or not the cast line of Survey 104, when properly located on the ground, is as much as 122.5 varas west of the west line of Tyler No. 1. The trial court found in effect that the east line of Survey- 104, when properly located on the ground, failed to coincide with the west line of Tyler No. 1 by at least 122.5 varas, and based such finding upon the un-contradicted evidence of H. L. George, the engineer and surveyor of the Stanolind Oil & Gas Co., and the admissions of that company.

It will be noted that the field notes prepared by George for the Stanolind Oil & Gas Co., which were recorded and became public records, exactly covered the land involved in this suit, and showed that the east line of Survey 104, on which it holds a mineral lease, is 122.5 varas wide and is west of the west marked line of the Tyler Survey. It clearly appeared from the records and testimony introduced that the area in question was unoccupied and unfenced ; that prior to this suit by the State for this area, the Stanolind Oil & Gas Co. had caused the four corners to be marked, and also contended that same was vacant public land and subject to lease by the State. It is undisputed that the Stanolind Oil & Gas Co. did not undertake to obtain a lease from the State on this land on the ground that it was part of Survey 104, and that such lease was sought for the purpose of protecting the rights of the fee owners thereof and those holding mineral leases thereon. It is also undisputed that the Stanolind Oil' & Gas Co. failed to obtain from the State for its sole benefit such lease, because the steps taken by such Company were in direct violation of the law; and, acting on the opinion of the Attorney General, the Land Commissioner rejected such application. Since the Stanolind Oil & Gas Company, which held a mineral lease on Survey 104 or part thereof, contended and represented to the State that the area of land was vacant and subject to lease, the Land Commissioner, in view of such statements and application, held that such land was vacant and executed leases thereon to the parties above mentioned, who complied with the statutes. The Stanolind Oil & Gas Company has an oil well near the east line of Survey 104; and oil wells have been drilled on each of the tracts embraced in the area of land in controversy. It furthermore appears that Tyler and the Stan-olind Oil & Gas Company had no valid claims to lease such land prior to the rights acquired by Bryant, Dogie Oil Company and Cardinal Oil Company.

The reports of Dod and other exhibits were introduced in evidence by the Stanolind Oil & Gas Company, but were never read to the court or to the jury. When such documents are considered in the light of the undisputed evidence in this case, we think, as between the parties hereto, an issue of fact as to •the true location of the S. E. corner of :Survey 70 becomes immaterial.

The undisputed evidence introduced in 'this case shows, as between the parties to this suit, that this area is vacant public land, and that there was no issue of fact on this question for the jury to determine. The evidence is also undisputed that, if this area is vacant land, the General Land Commissioner has awarded same to the proper parties, in accordance with the provisions of the statutes. The trial court did not think it necessary to locate on the ground the south line of Runnels County School Land Survey No. 3; nor the east line of Survey No. 104, but did determine that such lines and corners are not located so as to conflict with the land awarded in this suit to the State. The effect of such judgment is that all of the area involved here was vacant public land.

It is made to appear that there are other persons, not parties to this suit, who own rights in such and other surveys, and it is earnestly contended that such rights owned by those who are not parties to this suit should not be adjudicated here in their absence. We agree that those persons should not be denied the. privilege, if they so desire, of having their rights in such surveys properly determined.

The decision of this Court in this case relates only to the rights of the parties to this suit to the land in controversy, and this decision shall not be construed as reconstructing the boundary lines of any other suryey; nor shall the determination of the rights of the parties to this suit to the land involved here be construed as adjudicating the rights of others not parties to this suit.

We further hold that, if it should be determined that all or any of the land involved here is embraced in other surveys, all rights held by any party or parties, including the Stanolind Oil & Gas Company, in such lands embraced in such survey or surveys shall not be affected by this decision.

It is the policy of the law to avoid needless litigation. As said by the Supreme Court of the United States in the case of Baldwin v. Traveling Men’s Ass’n, 283 U.S. 522, 51 S.Ct. 517, 518, 75 L.Ed. 1244: “Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the ‘parties.” This same rule has been reaffirmed recently by the Supreme Court of the United States in the case of Evelyn Treinies v. Sunshine Mining Co. et al., delivered November 6, 1939, 308 U.S. -, 60 S.Ct. 44, 84 L.Ed. -.

If the land involved here is vacant public land, the State and those holding under the State, parties to this suit, are entitled to judgment therefor, as held by the trial court. There is no need to litigate that question again.

Therefore, the judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is reformed in accordance with this decision, and such jridgment, as reformed, is affirmed.


author: BEAUCHAMP, Judge.

text:
    RODRIQUEZ et al. v. STATE.
    No. 20600.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    J. J. Duckett, of El Campo, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for felony theft; punishment assessed against Manuel Rodriquez and Rudolph Vasquez was ten years each in the penitentiary, and the penalty assessed against Victor Esponosa was two years in the penitentiary.

The indictment appears regular. The record is before us without statement of facts or bills of exception. No error of a fundamental nature has been presented.

The judgment is affirmed.


author: HAWKINS, Presiding Judge.

text:
    THOMPSON v. STATE.
    No. 20626.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    R. B. Gambill, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for driving an automobile on a public highway while appellant was intoxicated, punishment being a fine of $50 and five days in jail.

The indictment charges the offense. No statement of facts or bills of exception appear in the record. In this condition no question is presented for review.

The judgment is affirmed.


text:
    O’CLARE et al. v. STATE.
    No. 20535.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.

      R. Tuck Chapin, of San Antonio, and Charles Owen, of El Paso, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

The appeal is from a judgment final on a forfeited bail bond.

By indictment returned into the district court of Hudspeth County on March IS, 1937, R. R. O’Clare was charged with forgery alleged to have been committed on or about the 20th day of October, 1936. A bail bond in the sum of $2,500 was executed by Richard O’Clare, as principal, and by Ed A. Seideman, Jack Whitley and Mrs. Vera O’Clare, as sureties. In the bond appears the following recital:

“The condition of the above obligation is such that whereas the above named principal, Richard O’Clare stands charged by indictment duly presented in the 34th District Court of Hudspeth County, Texas, with the offense of forgery on March 3" 1937 a felony.”

The bond bears no date. A notation over the sheriff’s signature states that it was “taken and approved this 18th day of December, A. D. 1937.” On September 6, 1938, a forfeiture was declared on said bond and judgment nisi entered against the principal and sureties, it being recited in said judgment that the bond was made on the 15th day of December, 1937. The scire facias writ served upon the sureties also recited that the bond was executed on the 15th day of December, 1937, and obligated the principal to appear and answer a charge of forgery on March 3, 1937.

Upon the trial to determine whether the judgment nisi should be made final objection was interposed to the admission in evidence of the bail bond on the following grounds: “Because it doesn’t appear therefrom that it was a bail bond executed and entered into before this court on the l'5th day of December, as set out in the judgment nisi, and also that scire facias served upon the defendants shows to have been .entered into on the 18th day of December and not on the 15th day of December, and for that reason I object to it, and because it does not bear any date except the date that it was filed and approved by the sheriff of Hudspeth County, Mr. M. H. Wright, which shows to have been filed on the 18th and is not the bail bond mentioned and referred to in the scire facias.” The objection was overruled and the bond admitted in evidence and exception was reserved to the ruling of the court.

Article 427, C.C.P., states the requisites of a citation to the sureties before judgment nisi may be made final. Subdivision 4 of said article provides: “It [the citation] shall state the offense with which the principal is 'charged as set out in the bond or recognizance, and state the date of such obligation.” The date of a bail bond is the date on which it was executed, and not the date of its approval. Holt v. State, 20 Tex.App. 271; Faubion et al. v. State, 21 Tex.App. 494, 2 S.W. 830. The scire facias writ serves two purposes, one as a citation to the sureties, the other, as the state’s pleading. Uppenkamp v. State, 89 Tex.Cr.R. 131, 229 S.W. 544. In the absence of an averment in the scire facias writ supported by proof that the true date of the execution of the bond was December 15, 1937, although on its face it bore no date of execution, the objection to admission of the bail bond in evidence on the ground of variance should have been sustained. See Johns v. State, 115 Tex.Cr.R. 335, 29 S.W.2d 757; Glass v. State, 103 Tex.Cr.R. 451, 281 S.W. 861; Mayfield v. State, 100 Tex.Cr.R. 232, 272 S.W. 448; Moseley v. State, 37 Tex.Cr.R. 18, 38 S.W. 800; Bailey v. State, Tex.Cr.App., 22 S.W. 40. We are not unmindful of the holding in Mills v. State, 36 Tex.Cr.R. 71, 35 S.W. 370, where the scire facias recited the date of the execution of the bond to have been the date of its approval, and it was held no variance. It is expressly stated that such holding was not in conflict with the Bailey case, last above cited. In the present case the bond was approved on December 18th, but the judgment nisi and scire facias state its execution to have been on a different date, to-wit: December 15th.

Another variance is apparent which we regard as fatal to the judgment. In stating the offense for which appellant was charged it was described in the bail bond as “forgery on March 3, 1937.” The offense is likewise so described in the scire facias writ. The indictment alleges that the forgery there declared on was committed “on or about the 20th day of October, 1936.” From the recitals mentioned it does not appear that the bond in question required the principal to answer to the forgery charged in the indictment relied on by the state.

For the reasons stated, the judgment must be reversed and the cause remanded, •and it is so ordered.


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    ESCOBAR v. STATE.
    No. 20261.
    Court of Criminal Appeals of Texas.
    April 5, 1939.
    Rehearing Denied Dec. 13, 1939.
    Stephens & Sams, of Benjamin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of enticing and decoying a minor from the custody of her parents, and was by the jury fined $150, hence this appeal.

There are no bills of exception found in the record, and consequently we are relegated alone to an examination of the facts in order to ascertain their sufficiency.

The facts show that the minor, Mildred Cook, a girl fifteen years old, was living with her father and mother in Knox County, in rather poor circumstances. She testified that she did not longer want to live with her parents, and that she asked appellant to take her away from home; that she asked him six or seven times. Her parents both testified that they did not want her to leave home, and that they did not give their consent for appellant to take her away.

■ The State introduced appellant’s confession, as follows:

“My name is John Escobar, I am 28 years of age; my postofficet address is Benjamin, Texas; I live at Benjamin, Texas, in Knox County. My father’s name is Phillip Escobar. He lives at Benjamin, Texas. He is about 81 years of age.
“I had met Mildred Cook at the straw stack near the League Estate Barn twice before I met her there on the 31st day of March. We had talked about going to Old Mexico, and Mildred had asked me one time before we left there to have intercourse with her, but we did not have time to do it as she had to go back home. This was close to the straw stack on the League Ranch in Knox County, Texas. I knew she was only fifteen years of age when I left Knox County with her. She said she had been going with boys when she was between 14 and IS years of age.
“She asked me to take her away from home, as her father was mean to her. She said if I did not take her away from home that she was going to turn me in for something. I was afraid she would turn me into the laws. We had been loving one another up about two weeks ago and I tried to get into her pants, but she said let’s let it go for a while. And she got mad at me. She said she did not love me any more and I told her that it was up to her. On March 31st, 1938, she sent me a note by her little brother, the one that was with her when we met and left Knox County, and said I am going to the hay stack after dinner, and I want you to take me as far as you can from my folks. After I got the note I went to Knox City to Guadalupe Flores, and went to his house and ask him what to do, that I was in a serious tight and I didn’t know what to do. I told him that this girl had sent me a note telling me what she had written. He said the only chance was to leave out with'her. I' told him that Mildred had a friend that she wanted to look for. I asked him to take us to Old Mexico. I was going to take Mildred to Old Mexico and live there. Lupe told me that he could not take us to Old Mexico, but he could take us to San Angelo. That I would be safe there. Lupe had a brother there in San Angelo. He took us to his brother’s house. We spent the night there at his brother’s house. We slept in the dugout. I had four intercourses with her that night. She asked me for it. We stayed there yesterday. I had one act yesterday, last night I had four more acts of intercourse with her. I do not know of any one else ever having had intercourse with Mildred Cook.
“John Escobar.
“J. C. Patterson) Witnesses » “Keith Whitt J Witnesses.

Mildred ■ Cook, the girl, testified that she loved appellant, and would marry him if he was not already married. That she wanted to go to Old Mexico and live with him; that he never tried to get her to leave home with him; that she had an act of intercourse with appellant in Knox County, and several acts in San Angelo.

Guadalupe Flores testified that appellant came to his house on the night of March 31, 1938, near Knox City, and asked him to take him and a white girl to Old Mexico. He said he was in trouble with a white girl. The witness told appellant that he could not take him to Old Mexico, but would take him to San Angelo, where witness had a brother, and he did take them there, and appellant paid him about $17 for the trip.

These are the salient points in the case, and present appellant’s contention, and that is that he could not be guilty of enticing and decoying a minor away from the custody of its parents when such minor requested him to take her away from such custody, and went with him voluntarily.

We are not impressed with the soundness of such doctrine. In this instance the person offended against is not the minor but the parent of the minor who thus loses the privilege of the society and the custody, care, control and services of such minor. It is the parent’s duty, and should be his pleasure, to train and care for the child, and attempt to bring it up in such a manner that it may become a useful member of society. This is a valuable right, and by proper thinking parents treasured most highly. That such a right can be wished away at will by a wayward child' is not based upon sound reason, and, in our judgment, the voluntary leaving home with another, — who might have held out enticing and alluring ideas and promises to such child, — should not be a proper defense to a charge such as this.

The case of Cummins v. State, 36 Tex. Cr.R. 398, 37 S.W. 435, cited by appellant, is not in point, the' facts therein widely differing from those in the instant case, that case holding that the bare fact that a party hires a minor with knowledge that such minor has a parent living is not sufficient to constitute the offense of knowingly decoying or enticing a minor from his parent.

In the case of Cockrell v. State, 71 Tex.Cr.R. 543, 160 S.W. 343, 48 L.R.A.,N.S., 1001, we also find a different state of facts from the instant case. In that case accused was a 19 year old girl. She and her cousin, Edna Cockrell, 18 years of age, went to a party with the knowledge of Edna’s mother but not the knowledge of her father. When the two girls returned to Edna’s home her father whipped her, and Lula, the accused, told Edna that she would leave home before she would stand such treatment. On the next night they again went to a party, and upon returning home Edna told her mother that if the mother was going to tell the father about this last party, that she, Edna, was going to leave home, and upon the mother refusing to promise not to tell 'the father, Edna did leave home and went to accused’s home, accused’s father being Edna’s uncle. The next day they heard the father was,looking for Edna with a gun, and they finally sent her from one uncle to another until she reached Oklahoma, in order to keep the enraged father from killing her. In this case no one enticed her, no one decoyed her; it was the unreasonable act of the father that forced her to leave her home, and surely he had no right to complain because of the fact that it was his outrageous conduct towards his daughter that forced her to leave.

We think the true doctrine is adverted to in the following quotation from Truelove v. State, 96 Tex.Cr.R. 537, 258 S.W. 826, 827, as follows: “ * * * We do not regard the contention that the young lady may have' left the home of her father voluntarily as any defense to the charge that appellant enticed her away. If she had been taken away forcibly, the offense might have been abduction and not that of enticing a minor.”

Following this rule we find that in California there was a similar offense denominated “child stealing,” and under that statute “one who maliciously or fraudulently ‘entices’ away a minor child is guilty of child stealing. To entice is to instigate, by exciting hope or desire; to lead astray. The minor may be ‘enticed’ away without domination over his or her will. The desire to do something promised by the abductor may alone suffice to lead astray the most self-willed girl or boy. * * * ”

“The question, therefore, whether the girl accompanied the defendant of her own volition is, in our opinion, immaterial; nor is it a defense in a case like this. 1 Cyc. 146; 8 R.C.L. 297; State v. Brandenberg, 232 Mo. 531, 134 S.W. 529, 32 L.R.A. (N.S.) 845; People v. Cook, 61 Cal. 478; Queen v. Biswell, 2 Cox.C.C. 279; Gould v. State, 71 Neb. 651, 99 N.W. 541.” The above being a quotation from People v. Torres, 48 Cal.App. 606, 192 P. 175, 176.

Again we quote from People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 440, a California case: “The appellant insists that the court committed reversible error in giving the following instruction to the jury, to wit: ‘You are further instructed that the offense involved in the charge against the defendant is an offense against the person having lawful charge of such child, and it is immaterial whether the girl, Mary Spiers, accompanied the defendant voluntarily or not.’ There is no merit in the appellant’s contention that the foregoing instruction is erroneous. In People v. Torres, 48 Cal.App. 606, 192 P. 175, a like instruction was approved, and a number of cases are cited in the opinion showing that the authorities are unanimous in upholding the doctrine that the willingness of the minor is immaterial in considering the guilt or innocence of the defendant.”

Our statute, Art. 535, Penal Code, which denounces the enticement of a minor from its parent uses the words “entice or decoy”. Webster’s International Dictionary defines the word “entice” to mean “To draw on by exciting hope or desire; to allure; to attract; * * * Often in a bad sense: to lead astray; to induce to evil; to tempt.”

We quote from 2 Words and Phrases, Second Series, p. 285: “The word ‘entice,’ as used in the Cr.Code, § 20, declaring that any person who shall maliciously or forcibly or fraudulently lead, take, or carry away, or entice away any child under the age of 18 years, with intent unlawfully to detain or conceal such child from its parent or parents, or guardian, must be given its ordinary and usual meaning, which is to draw on; to instigate by inciting hope or desire; to allure, especially in a bad sense; to lead astray; to tempt; to incite. Its synonyms are ‘to allure’; ‘to coax’; ‘to destroy; ‘to seduce’; ‘to tempt’; ‘to inveigle’; ‘to persuade’ ; and ‘to prevail on.’ ” Gould v. State, 71 Neb. 651, 99 N.W. 541; also, see Arrington v. State, 3 Ga.App. 30, 59 S.E. 207, which holds that an invitation to a 15 year old boy to take a trip, promising to pay all expenses and give him anything he wanted was an “inticing”.

The case of People v. Carrier, 46 Mich. 442, 9 N.W. 487, holds in part, it is not necessary that the female should be asked in direct language to go. Anything done which would tend to persuade the female to go away would constitute the offense, if successful.

It is our judgment that the appellant’s own confession relative to his conduct with this minor girl was calculated to and did lead her astray, did seduce her, and allure her with the prospect of living with him a life of shame in Mexico. That his loving her and his efforts to seduce her had caused her to want to go with him on this Mexico trip, and thus he tempted her; he induced her to evil and placed himself, by this conduct, under the denunciation of the statute, regardless of the fact that the young girl failed to heed, and possibly had never heard the admonition contained in the saying “if sinners entice thee, consent thou not.”

. We think these facts are sufficient to sustain the judgment, and it is therefore affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

A very able motion for rehearing has been filed in this case and insistently presents an argument for a reversal on the ground that the minor left home voluntarily. It presents that she persuaded and coerced the appellant to take her away and ’into his native land, Old Mexico. He admits that they were fleeing into that country when they were apprehended at San Angelo. If we look only to one scene in the tragic drama, we might take this view of the facts. However, looking at the entire case, as we must, we can neither concur in the facts insisted upon nor in the application of the law for it all had its origin in appellant’s own wooing.

It would be easier for us to apply the law to the facts and reach the same conclusion in this case if the minor child (a girl) were of a different character. The normal mind thinks differently when the woman involved may be admired, sympathized with and encouraged because of her virtue. It is difficult for human beings to reason in the same fashion where the individual involved has stooped to the lowest depths of conduct. Let us note, however, that the facts are not in dispute, and it is not a question of a bad girl’s veracity but of her rights and society’s duty to her. The bad should have the same protection by the law as the good. It we take out of this case the sin of the woman and consider the conduct of the appellant from the entire record our conclusion will be easy. Indeed, we should view him in the light of one charged with responsibility in his relationship with a girl so weak as apparently to be a moral imbecile. Were she physically crippled, the horror of his conduct would be easily apparent. In the instant case, she appears to be morally and mentally a cripple. No appeal is found in the facts to excuse his acts in law or in any manner to mitigate the offense.

This case is distinguishable on the facts from the leading case of Cockrell v. State, 71 Tex.Cr.R. 543, 160 S.W. 343, 48 L.R.A., N.S., 1001, cited by the appellant, for in that case the principal and moving cause of the girl’s leaving home was the abuse of her father and her fear that he might take her life. The accused there had done no more than numerous others. She had consoled a minor and had agreed with her in her view as any reasonable mind must have done under the facts of that case. There seems to have been no enticement in the case. The girl was fleeing from her father who pursued her with a gun and Miss Cockrell merely gave aid to one whose mind had been made up and whose purpose would have been accomplished regardless of the appellant’s attitude toward her.

In this appeal we have a wayward girl, it is true, and the only evidence in the record of any condition in her home that was unsatisfactory was given by her on the witness stand in an effort to free the appellant. The girl’s statements that her parents were mean to her were mere conclusions based on no facts and could, at most, reflect only the dissatisfied mind oí á girl at a tender age — old enough for human weakness but too young for discretion. Furthermore, so far as the record reflects, this dissatisfaction and unrest arose after she yielded to the entreaties of the appellant and are more likely the result of that unlawful relationship than of any ill-advised conduct of her parents. It is hardly possible that she could have carried on with the appellant in the manner she described and according to the desire which she developed in his association without attracting some suspicion from her parents. They owed it to her to make her unhappy in such conduct. Human experience would teach us that her unrest most likely arose because of her desire for the uninterrupted illicit relationship with a man with whom she had fallen in love. According to his own statement, and by it we are bound, no other person had had any such relationship with her. He is the instigator of the affair and because of her unrest, she desired to flee with him and live with him in Mexico; and this desire arose because of the conduct he now asks us to overlook. No act of hers can suspend the law in his behalf. The fact that he found her an easy victim adds heinousness to his crime. She was as incapable as anyone her age would be of waiving any rights of her own, much less the parental right, and the rights of society for whom the law is made. Her pleas and her demands that he take her into Mexico are beside the case. The injury to society and to the parents is none the less because this plan at that particular time was hers instead of his. It was planted in her mind by his conduct and it grew as any reasonable person might have expected it to do.

This court has held that it is immaterial that the minor left the home voluntarily, as quoted in the original opinion from Truelove v. State, 96 Tex.Cr.R. 537, 258 S.W. 826. We regard this case in point on the only contention which the appellant could reasonably make, that is, that the minor left home voluntarily. If we rid our minds of any thought of the character of the girl, as it is unquestionably our duty to do, we are left with this as the only question in the case. We think that the conviction under the facts was proper.

The motion for rehearing is overruled.