author: KRUEGER, Judge. BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    EVANS v. STATE.
    No. 21255.
    Court of Criminal Appeals of Texas.
    Jan. 22, 1941.
    Rehearing Denied Feb. 19, 1941.
    Application for Leave to File Second Motion for Rehearing Denied Feb. 26, 1941.
    John R. Francis and William H. Scott, both of Houston (King C. Haynie, of Houston, of counsel on appeal only), fot appellant. '
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is negligent homicide. The punishment assessed is a fine of $1,000.

The complaint and information contain two counts: One charging negligent homicide in the first degree, and the other charging negligent homicide in the second degree.

Upon his case being called for trial, appellant waived a jury and submitted all issues, both of law and fact, to the court, who found him guilty of negligent homicide without stating of what degree, and assessed his punishment at a fine as above stated.

Appellant, for the first time here, takes the position that since the information contains two counts and the judgment of conviction fails to specify upon which count he was adjudged guilty, therefore the judgment is void. Appellant’s contention might be correct unless this court can, from the statement of facts, determine which of the two counts charging the act constituting the offense is sustained by the testimony. An examination of the statement of facts discloses that appellant, by his own testimony, together with that of other witnesses, supported the allegations of negligence charged in the first count, while the testimony is deemed insufficient to sustain the allegations of negligent homicide in the second degree.

There is no direct evidence that appellant violated the speed limit. The only testimony on the subject was that given by the witness Alexander, who testified as follows: “I saw this (appellant’s) car coming about 60 or 70 feet before it struck old man Hightower; I could not tell how fast the - car was coming but it wasn’t coming slow and the horn wasn’t sounded, and the car didn’t act like the brakes had been put on and it come right straight at old man Hightower and knocked him down just like I told you. * * * It didn’t look to me like he done anything to avoid hitting this old man.”

Appellant testified as follows: “I was proceeding down Heiner Street and saw Hightower about 60 feet away. I continued driving straight on and the next time I looked up there was Hightower right in front of my car. I ran into him, knocked him down, stopped in a few feet, backed my car off of him, and there he was lying in the street. * * * I did not turn my car to avoid hitting Hightower because I saw him 60 feet away and didn’t see him any more until I was right on him and I didn’t have time to do anything. I do not know why I didn’t see him; there was nothing to obstruct my vision; I just didn’t see him.”

There is somfe evidence that appellant failed to sound the horn but no such direct allegation is contained in the information.

These were the only eyewitnesses to the unfortunate occurrence. The testimony quoted supports the allegations in the first count charging appellant with negligent homicide in the first degree. Consequently the court. must have found him guilty of the offense ‘supported by the evidence. If there had been sufficient evidence to have also supported a conviction under the second count charging negligent homicide in the second degree a more difficult question might have been presented.

Therefore, two questions present themselves for our consideration: First, whether or not this court is authorized by law to reform and correct the judgment; and second, whether or not the record is in such a condition that we may, from the recital therein, reform the judgment. We are of the opinion that both of the questions may be answered in the affirmative. Article 847, C.C.P., expressly authorizes this court to reform and correct judgments, as the law and the nature of the case may require. See also 4 Tex.Jur. p. 603, § 423; Wooten v. State, 111 Tex.Cr.R. 524, 15 S.W.2d 635; Knott v. State, 93 Tex.Cr.R. 239, 247 S.W. 520; Swartz v. State, Tex. Cr.App., 18 S.W. 415; Waters v. State, 137 Tex.Cr.R. 41, 127 S.W.2d 910; Thomas v. State, 31 Tex.Cr.R. 82, 19 S.W. 901; Purcelley v. State, 29 Tex.App. 1, 13 S.W. 993; Towles v. State, 133 Tex.Cr.R. 470, 112 S.W.2d 458; Byrd v. State, 90 Tex.Cr.R. 418, 235 S.W. 891; Southern v. State, 34 Tex.Cr.R. 144, 29 S.W. 780, 53 Am.St.Rep. 702.

This case is readily distinguishable on the facts from that of Bowles v. State, 146 S.W.2d 183, decided by us on January 8, 1941, because in the present case we have a statement of facts which furnishes the necessary data for the reformation and correction while in the Bowles case we had no statement of facts.

The judgment will therefore be reformed so as to adjudge appellant guilty of negligent homicide in the first degree with the punishment as assessed by the trial' court

As reformed, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

BEAUCHAMP, Judge.

We think that the original opinion properly disposes of the case and sufficiently discusses the issues raised by the record.

The question is raised on motion for rehearing as to the sufficiency of the allegation that the appellant was driving on a public highway. It is presented that this allegation is a conclusion of the pleader and appellant cites as authority Johnson v. State, 126 Tex.Cr.R. 389, 73 S.W.2d 853. We are unable to reconcile the holding in the Johnson case with that of both previous and subsequent holdings of the court on this subject. See Pence v. State, 110 Tex.Cr.R. 378, 9 S.W.2d 348; Blackman v. State, Tex.Cr.App., 20 S.W.2d 783; Wood v. State, 119 Tex.Cr.R. 352, 45 S.W.2d 599; Smith v. State, 130 Tex.Cr.R. 117, 92 S.W.2d 1046, and White v. State, 131 Tex.Cr.R. 69, 95 S.W.2d 429. Clearly it is the holding in this line of authorities that the allegation is sufficient. Neither of them were discussed in the motion for rehearing and it appears that appellant’s counsel was also. unable to distinguish them. We think the holding in Johnson v. State, supra, as to this question was out of line with the authorities, and the same is accordingly overruled.

Appellant’s motion for rehearing is overruled.

On Appellant’s Motion for Leave to File Second Motion for Rehearing.

CHRISTIAN, Judge.

Appellant insists that we have heretofore failed to consider his contention that a conviction for negligent homicide cannot be sustained because of the fact a witness for the state testified that appellant was intoxicated when he arrested him at the scene of the accident. The testimony of appellant and his witnesses was to the effect that appellant was not under the influence of intoxicating liquor. In short, an issue was raised and the testimony warranted the conclusion that appellant was not intoxicated. Appellant is correct in his contention that he would not be guilty of negligent homicide in the event the accident was due to his negligent operation of his automobile .while he was under the influence of intoxicating liquor. We quote from Collins v. State, 130 Tex.Cr.R. 386, 94 S.W.2d 443, 444, as follows:

“If the appellant at the time of the accident was driving her car upon a public highway while intoxicated, she was guilty of a felony under article 802, P.C.1925: and, if appellant as a direct result of her intoxicated condition drove her automobile into the car on which K. C. Thompson was working and killed him, she would be guilty of murder. Whether or not appellant was intoxicated, and whether or not her act in driving her car into the car on which deceased was working was the direct result of her drunken condition, were issues of fact to be determined by the jury under an appropriate instruction from the court. The court properly submitted said issues to- the jury, who decided them adversely to appellant. We are of the opinion that the testimony is sufficient to sustain the jury’s conclusion. See Burton v. State, 122 Tex.Cr.R. 363, 55 S.W.2d 813; Norman v. State, 121 Tex.Cr.R. 433, 52 S.W.2d 1051; Jones v. State [127 Tex.Cr.R. 227] 75 S.W.2d 683.
“The appellant’s act does not come within the statute on negligent homicide, for the reason that the act of driving an automobile while intoxicated is a felony and not a misdemeanor. . See article 1240, P.C.1925.”

There was no averment of intoxication in the first count of the complaint and information, and the acts of negligence there charged are not shown by the averments to be related to intoxication. Appellant’s own testimony made out a case of negligent homicide of the first degree. The trial was before the court without the intervention of a jury. The trial judge had evidence before him which would have supported the conclusion that appellant was not intoxicated and that the accident, as detailed by appellant in his testimony, was due to the negligent operation of the automobile. Under the circumstances, we are not impressed with the view that we should assume that the trial judge found appellant was intoxicated and that his intoxicated condition was the proximate cause of the homicide. If the testimony had disclosed without controversy that appellant was intoxicated and that such condition was the cause of the collision a different question would be presented. Stated in another way, the authorities appellant cites in support of his position, and from one of which we have heretofore quoted, might be given application.

While the question as to the authority of this court to amend the judgment was not discussed in the opinion on motion for rehearing, it was thoroughly dealt with in the original 'opinion and, we believe, properly disposed of.

We think the case of Simmons v. State, 109 Tex.Cr.R. 157, 3 S.W.2d 449, is authority against appellant’s contention that Article 1231, P.C. defining negligent homicide of the first degree, is invalid.

The application for leave to file second motion for rehearing is denied.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    BURNSIDE v. STATE.
    No. 21447.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    J. W. McCullough and H. H. Neilson, both of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of ■ Austin, for the State.
   GRAVES, Judge.

■ Upon appellant’s plea of guilty of the offense of driving an 'automobile upon a public highway while under the influence of intoxicating liquor, and the waiver of a trial by jury, the court assessed his penalty at a fine of $50 and confinement in the county jail for five days.

.The record before us contains neither a statement of facts nor bills of exception. The indictment seems to be in proper form. All matters of procedure appearing regular, the judgment will be affirmed.


author: BEAUCHAMP, Judge.

text:
    CRUTCHER v. STATE.
    No. 21445.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was ^convicted in the district court of Collin County on a charge of driving while intoxicated, and his punishment assessed at five days in jail and a fine of $50.

The proceedings appear regular and the facts are sufficient to warrant the conviction. No statement of facts or bills of exception are presented and there is nothing for this court to review.

The judgment of the trial court is affirmed.


author: KRUEGER, Judge.

text:
    SMITH v. STATE.

      No. 21440.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Fred O. Jaye, of De Leon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austni, for the State.
   KRUEGER, Judge.

The offense is theft of sheep. The punishment assessed is confinement in the state penitentiary for a term of three years.

There are no bills of exception in the record complaining of any matter of procedure. Consequently the only question presented is the sufficiency of the evidence to sustain the conviction.

The testimony shows that on or about the 20th day of March, 1940, Clyde Inches miss-' ed some sheep from his pasture. All of his sheep were branded with red paint on the hip. One of those which he lost was a ewe with a long tail, one was blade faced and one had a hump on his back like a camel. The officers located these sheep in East-land County in the possession of Tom Payne, who testified that on the 21st day of March, he purchased seven sheep from appellant for the sum of $2.50 each, or a total of $17.50. Clyde Inches positively identified the sheep which Payne had purchased from appellant as his sheep and carried them back home to Coryell County. Appellant did not testify or offer any affirmative defense.

We deem, the evidence sufficient tc sustain the jury’s conclusion of appellant’s guilt.

Finding no reversible error in the record, the judgment is affirmed.

PER CURIAM.

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


text:
    HINTON v. STATE.
    No. 21446.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Sisco & Sisco, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Apellant was convicted in the district court of Collin County on. a charge of kidnapping and his punishment assessed at five years in the penitentiary.

The proceedings appear regular and the facts are sufficient to warrant the conviction. No statement of facts or hills of exception are presented to us and there is nothing for this court to review.

The judgment of the trial court is affirmed.


author: CHRISTIAN, Judge.

text:
    BURNSIDE v. STATE.
    No. 21448.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    J. W. McCullough and H. H. Neilson, both of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a fine of $50 and confinement in jail for five days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    TALAMANTEZ v. STATE.
    No. 21432.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Ditzler H. Jones, of Uvalde, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with robbery of the person by assault, and by the jury awarded a penalty of five years in the penitentiary.

He complains in his motion for a new trial of a failure of the allegation and proof to correspond. in the matter of the name of the person alleged to have been robbed. We find that the. indictment alleges the person robbed to have been named Toleno Rodriguez, and we find the testimony of the witness to be: “My name is Victoriano Rodriguez, and I also go by the name of Toleno Rodriguez; they call me Toleno Sanchez but it’s Toleno Rodriguez; that’s my name, Toleno Rodriguez, and I live here in Brackett, and have lived here since I was a boy.”

It seems that the injured party was known by possibly two names, and it- seems to be sufficient to allege either name in the indictment. See Branch’s Penal Code, p. 239, Sec. 464; Stokes v. State, 46 Tex.Cr.R. 357, 358, 81 S.W. 1213.

The testimony shows that appellant struck the complaining witness over the head and knocked him down, and while the witness was down appellant again struck witness and then ran his fingers under the fingers of the complaining witness and forcibly took the money out of witness’ hand and left. We think these facts show a robbery by assault as charged in the indictment.

We find no error presented to us, and therefore the judgment is affirmed.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    TAYLOR v. STATE.
    No. 21296.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.

      Walter E. Gates, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of a cow. The punishment assessed is confinement in the state penitentiary for a term' of two years.

There were two theories presented by the evidence. The State’s theory was that appellant stole the cow in question, while appellant’s theory was that Bill Thompson stole the animal and sold her to appellant on the night of the alleged theft. Each theory is supported by evidence. The State’s testimony, briefly stated, shows that on the night of November 29, 1939, a cow was stolen from J. V. Sandifer in Milam County and carried to Brownwood and there sold by appellant to Mr. Guy Eads on the following day. A day or two later Mr. Eads carried her to Fort Worth and sold her to a packing company. The officers who were investigating the theft went to Fort Worth and recovered a set of horns which were peculiarly formed and shaped. They were brought back to Milam County where Mr. Sandifer positively identified them as the horns from the cow in question. Appellant was arrested and charged with the offense.

While in custody of the officers appellant made a written confession to the District Attorney of Milam County which appeared upon its face to be in due form. At the trial appellant repudiated the confession and testified that he bought the cow in question from Bill Thompson on the night of November 29th, carried her to Brownwood and sold her to Mr. Eads.

Bill of Exception No. 1 reflects the following occurrence: Before the beginning of the introduction of any evidence in the case, all the witnesses, including Bill Fricke, were placed under the rule and instructed by the court to retire from the courtroom and remain outside of the same; that during the trial, Bill Fricke came to the courtroom door, which was partly open, where he remained for some time until the sheriff ordered him to leave; that when Fricke was called as a witness the District Attorney objected to his testifying on the ground that he had violated the rule. The court sustained the objection and the appellant excepted. The bill further recites that if the witness had been permitted to do so, he would have testified: “That Bill Thompson and Fred' Gant, who is the Constable (of) Milam County, Texas, met together in his place of business in Lexington, Texas, and Fred Gant told Bill Thompson within his hearing that Guyon S. Taylor had placed him in a tough spot and that the ‘monkey’ was on his back.”

It is obvious that this testimony was clearly hearsay and would not have been admissible unless it was for the purpose of impeaching Gant, but no predicate was laid for impeaching him. Hence the court’s ruling in no event reflects reversible error.

Bill of Exception No. 2 reflects the following occurrence: After the appellant had taken the stand and testified that he purchased the cow in question from Bill Thompson, he was asked on cross-examination by the State if he did not know that he was charged by indictment with stealing a cow from Mr. Smith in San Saba County. Appellant objected thereto on the ground that it was prejudicial. The objection was overruled and appellant excepted. When appellant took the witness stand and by his own testimony raised an affirmative defense, it was not improper to permit the State, on cross-examination, to inquire of him if he had not been indicted or convicted of a felony, for the purpose of discrediting his testimony, where the former indictment or conviction is not too remote. In the instant case, the inquiry related to a recently returned indictment against appellant. Hence the court’s action in overruling appellant’s objection was proper. See Branch’s Ann.Tex.P.C., p. 101, § 167; also Chance v. State, 63 Tex.Cr.R. 602, 141 S.W. 113; Bearden v. State, 44 Tex.Cr.R. 578, 583, 73 S.W. 17, and cases there cited.

Bill of Exception No. 3 relates to the introduction in evidence of appellant’s purported confession. The question of whether the confession was voluntary was a contested issue which the court submitted to the jury under an appropriate instruction that unless they believed from the evidence beyond a reasonable doubt that the statement was freely made without compulsion or persuasion, they should not consider it for any purpose. This course of procedure was proper under the well-recognized and established rule in this state. See 18 Tex.Jur., p. 188, § 103; also Bingham v. State, 97 Tex.Cr.R. 594, 262 S.W. 747; Blake v. State, 110 Tex.Cr.R. 128, 7 S.W.2d 579.

In his motion for a new trial ap-T pellant claimed that since the trial he had discovered new testimony material to his defense. Attached to the motion and in support of the allegation therein is the affidavit of F. W. Hammer in which he states that he appeared and testified as a witness in behalf of appellant on his trial; that the substance of the alleged newly discovered evidence is that the witness, in giving his testimony, was confused as to whether appellant was referring to the “New Deal Thanksgiving Day” or to the usual and well-established Thanksgiving Day. We do not believe this comes within the rule of newly discovered evidence for the reason that the evidence was available and could have been discovered by the use of ordinary diligence. A mere inquiry as to which one of the dates the witness was referring to would have explained the confusion, if any existed in his mind.

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

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant insists that the court below committed reversible error in declining to submit to the jury a requested instruction relative to the voluntary character of appellant’s confession. In his charge the court advised the jury that they would disregard the confession unless they believed from the evidence beyond a reasonable doubt that it was freely made without compulsion ■or persuasion. No exceptions whatever were addressed to the charge, and in the special charge no reason was assigned why it was deemed more appropriate than the instruction contained in the general charge prepared by the court. Under the circumstances, we would not be warranted in holding that the refusal of the special charge should work a reversal of the judgment. In Bell v. State, 99 Tex.Cr.R. 61, 268 5.W. 168, 169, this court, speaking through Judge Hawkins, used language as follows:

“Lewis Smith was an admitted accomplice, In the sixth paragraph of the charge the jury was so instructed, and the law relative to an accomplice witness was embraced therein. No exceptions whatever were adressed to the charge, but the court was requested to give, in lieu of paragraph 6, a special charge on accomplice testimony prepared by appellant’s counsel. In the special charge no reason is assigned why it was deemed more appropriate than the one contained in the general instructions prepared by the court. In Boaz v. State, 89 Tex.Cr.R. 515, 231 S.W. 790, we said:
“ ‘For the court to hold that the requesting of a special instruction, which the trial court could legitimately consider as a substantial repetition of his main charge, can take the place of an objection which should pertinently point out the matter complained 'of would virtually work a repeal of the statute,’ — that is, of article 735, Vernon’s C.C.P. [Vernon’s Ann.C.C.P. art. 658], which requires an objection to the charge to be in writing, and ‘distinctly specifying each ground of objection.’ In the same case it was intimated that circumstances could arise under which a requested charge might be sufficient to raise the question of error in the absence of a specific objection to the main charge; this was discussed at length in Parker v. State (Tex.Cr.App. No. 7255) 261 S.W. 782, decided at the last term of this court, but the opinion has not yet been published, the mandate having been withheld to give opportunity for presenting application for writ of error to the Supreme Court of the United States upon what was deemed by the defendant’s counsel as a federal question not related in any way to the point now being considered. In that case we held that, where there was an entire omission from the court’s charge of instruction on a pertinent issue, that a requested correct special charge upon that issue would be sufficient to raise the error in omitting it without a specific objection in writing calling attention to the omission. In the present case the court did charge on accomplice testimony, and if appellant thought it erroneous or' inappropriate he should have pointed out by specific objections in writing the particular matters he complained of and which his special charge was thought to remedy.”

We think the original opinion made proper disposition of'the other questions brought forward in the motion for rehearing.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    PROUTT v. STATE.
    No. 21435.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Travis County on a charge of murder and his punishment assessed at five years in the penitentiary.

The proceedings appear regular, and the facts are sufficient to warrant the conviction. No bills of exception or. statement of facts are presented and there is nothing for this court to consider.

The judgment of the trial court is affirmed.


text:
    RICH v. STATE.
    No. 21444.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    T. O. Murray, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Collin County on a charge of driving while intoxicated, and his punishment assessed at five days in jail and a fine of $50.

The proceedings appear regular and the facts are sufficient to warrant the conviction. No statement of facts or bills of exception are presented and there is nothing for this court to review.

The judgment of the trial court is affirmed.


text:
    GREESON v. STATE.
    No. 21433.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Lawrence L. Bruhl, of Llano, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Conviction for a misdemeanor, punishment being assessed at a fine of one hundred dollars.

The statute under which the prosecution proceeded, Article 567b, Vernon’s Ann. P.C. of Texas, reads as follows:

“It shall be unlawful for any person, with intent to defraud, to obtain any money, goods, service, - labor, or other thing of value by giving or drawing any check, draft, or order upon any bank, person, firm or corporation, if such person does not, at the time said check, draft, or order is so given or drawn, have' sufficient funds with such bank, person, firm or corporation to pay such check, draft, or order, and all other checks, drafts, or orders upon said funds outstanding at the time such check, draft, or order was so given or drawn; provided that if such check, draft, or order is not paid upon presentation, the nonpayment of same shall be prima facie evidence that such person giving or drawing such check, draft, or order had insufficient funds with the drawee to pay same at the time the said check, draft, or order was given or drawn and that said person gave or drew such check, draft, or order with intent to defraud; and provided further that proof of the deposit of said check, draft, or order with a bank for collection in the ordinary channels of trade and the return of said check, draft, or order unpaid to the person making such deposit shall be prima facie evidence of presentation to, and nonpayment of said check, draft, or order by, the bank, person, firm or corporation upon whom it was drawn; and provided further that where such check, draft, or order has been protested, the notice of protest thereof shall be admissible as proof of presentation and nonpayment and shall be prima facie evidence that said check, draft, or order was presented to the bank, person, firm or corporation upon which it was drawn and was not paid.”

The complaint avers, in substance, that the affiant had prima facie evidence that appellant, with intent to defraud, obtained money and merchandise by giving or drawing a check in the amount of two dollars on the Peoples National Bank of Lampasas, Texas. ' Further averments in the complaint were that the check was deposited with Moore State Bank of Llano, Texas, and returned unpaid to the party making the deposit. It is not directly charged in the complaint that the provisions of the statute were violated. If it was intended to make the charge upon information and belief, it is observed that the affi-ant failed to state that he had good reason to believe and did believe that the offense had been committed. We quote from Branch’s Ann. Texas P.C., Section 478, as follows:

“When a complaint is sworn to only on belief it is bad if the allegation is that affiant ‘has good reason to believe’ and there is no allegation that he ‘does believe.’' Smith v. State, 45 Tex.Cr.R. 411, 76 S.W. 436; Justice v. State, 45 Tex.Cr.R. 462, 76 S.W. 437; Tompkins v. State [Tex.Cr.App.], 77 S.W. 800; Green v. State, 62 Tex.Cr.R. 50, 136 S.W. 467

It is alleged ill the complaint that the appellant gave or drew a check. The word “or” should not have been used.

The name of the person to whom the check was given is not averred. Such an averment was essential.

There is no averment that at the time the check was given appellant had no sufficient funds in the bank upon which the check was drawn to pay such check and all other checks, drafts and orders he had outstanding at the time the check was given. Under the circumstances, we are constrained to hold that the offense has not been sufficiently charged.

The information is also defective.

The judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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


text:
    Ex parte MARPLE.
    No. 21529.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    Joe Burkett, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

From an order of the County Court at Law No. 2 of Bexar County, Texas, remanding appellant to the sheriff of said county after a hearing upon a writ of habeas corpus, appellant has appealed to this court.

It appears from the record that on the 1st day of November, 1940, a complaint was filed in the Justice Court of Precinct No. 7 of Bexar County charging appellant with operating a truck without first having obtained a chauffeur’s license. Appellant was arrested and brought into the Justice Court room, where he protested his innocence and wanted the case postponed for ten days. The Justice o.f the Peace was absent. Mr. Garza, an Assistant District Attorney, who was present in the court room, advised appellant that according to his understanding of the law he (appellant) was guilty. Appellant then asked if he could get the case passed until Tuesday; that on Tuesday he could pay the fine; that he wanted the judge .to try the case. Mr. Garza then told appellant that he could have a trial and pay a fine or have ten days after entering a plea of guilty by giving notice of appeal.' Garza testified: “He authorized me to plead guilty for him.” It appears that the Assistant District Attorney made the following notation on the jacket of the case: “No. 3972 — G. T. Marple plead guilty on Nov. 22nd, 1940. Will pay $10.00 by order of Garza.”

No formal plea of guilty seems to have been made for appellant by Garza and no entry seems to have been made by the Justice of the Peace upon his docket.

The questions here presented by the record, as we understand it, are: First, did the defendant have a trial before the Justice of the Peace; and second, did the Justice of the Peace assess any fine against him and enter any judgment showing the essentials of a final judgment as provided by Art. 917, C.C.P.?

Art. 917, supra, provides as follows: “The judgment, in case of conviction in a criminal action before a justice of the peace, shall be that the State of Texas recover of the defendant the fine and costs, and that the defendant remain in custody of the sheriff until the fine and costs are paid; and that execution issue to collect the same.”

We do not find in the record any evidence which shows that these statutory provisions had been substantially complied with. The Assistant District Attorney had no authority to assess and fix the amount of the fine against the appellant. That was a matter exclusively within the province of the justice or the jury, as the case may be. There was no judgment of any kind entered upon the docket of the Justice of the Peace. Consequently there was no final judgment showing the conviction of defendant for any offense, nor the fine that was assessed against him. Therefore, the judgment was not such as might be used as a plea in bar of a subsequent prosecution for the same offense. Hence the defendant was entitled to the relief sought under the writ of habeas corpus. In support of our conclusion, we refer to the case of Funderburk v. State, 64 S.W. 1059, in which this court said that while the statute does not appear to have been strictly complied with, yet the effect of the judgment rendered is a substantial compliance with the statute. In the present instance, we do not even have any semblance of a compliance with the statute.

It might not be amiss here to state that prosecuting attorneys should not accept the duty of representing a defendant by agreeing to enter a plea of guilty‘for him and at the same time represent the State. Such act is contrary to the' policy of the law.

From what we have said, it follows that the judgment of the County Court at Law No. 2 of Bexar County, Texas, be, and the same is, hereby reversed and the relator ordered discharged without prejudice to the State to try him on the original complaint.

PER CURIAM.

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


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    McDOWELL v. STATE.
    No. 21324.
    Court of Criminal Appeals of Texas.
    Jan. 8, 1941.
    Rehearing Denied Feb. 19, 1941.

      Fred Whitaker, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for the offense of murder and given a sentence of forty years in the penitentiary. He was charged by indictment returned on the 7th day of May, 1940, as a principal ■ with Walter Castleberry for the murder of John Fleming on the 8th day. of September, 1929.

The deceased was a constable and while at a gathering of Negroes undertook to take a pistol off of the person of Andrew Castle-berry. This resulted in a shooting affray and the death of Andrew Castleberry who was a brother of Walter Castleberry. The trouble arose at a gathering at which a great number of colored people were present, yet there are but few eyewitnesses and their stories are in some respects widely at variance. The appellant did not testify in his own behalf. The state relies upon the evidence of Edgar Shaw, who was sitting by the side of or near the constable during the time and in position to hear and see the things said and done.

The lapse of time between the killing and the trial is explained by the fact that appellant fled from the community and resided in California under an assumed name. For some reason the indictment was returned after his apprehension in 1940. Walter Castleberry, who fired the shot which likely would have proven fatal independent of ■other wounds, also disappeared and has never been apprehended and tried. Charley Thompson, a third party involved, was arrested at the time and tried in Harrison County on a change of venue soon thereafter and given a sentence of ninety-nine years in the penitentiary.

The occasion caused wide comment at that time and, to some degree, has been involved in political campaigns for sheriff in the years to follow. It seemed, however, that the name of Walter Castleberry and the officer’s failure to apprehend him was the principal cause of this comment and that the name of this appellant played a minor part. It is admitted that the feeling ran high at the time of the murder and that there were threats of mob violence. This caused the then district judge to transfer the Thompson case on his own motion to Harrison County for trial.

In the instant case appellant duly filed a motion for change of venue and supported the same by a number of witnesses. It was contested by the state and the state likewise produced a number of witnesses, the effect of whose testimony is that the feeling since the date of the murder had subsided so that in their opinion a jury qualified to try the case of this appellant might now be obtained. From the record it does not appear that any great difficulty was experienced in finding jurors qualified under the law. The trial court heard this testimony and passed on it adversely to appellant. We think he was warranted in doing so under the evidence.

The principal contention in the case upon which appellant asks a reversal is that the evidence fails to connect appellant with the murder. Upon conclusion of the testimony appellant asked for an instructed verdict. A determination of this question will also determine the appeal.

It is not necessary to review all the evidence on the subject. We will refer to sufficient of it to support the conclusion which we reach.

Edgar Shaw testified in behalf of the-state that the shooting began near the church building and that a very short period of time elapsed between the commencement of the shooting and the conclusion of it at which the Negro, Andrew Castleberry, and the constable, John Fleming, lay dead on the ground. The witness said: “He (Fleming) asked him (Andrew Castleberry) to give him that gun and I didn’t understand what Andrew said * * *, but he ran backwards and Mr. Fleming he went up to him and shot him. And then I heard somebody say, ‘let’s' kill him’. That came from on the back of the church, I reckon;, came from towards the back of the church,, in that direction. * * * I saw Albert McDowell. He came from that way, the same way I heard somebody say, ‘let’s kill him’. When somebody says, ‘let’s kill him’,, he done fell and he (appellant) went up and hit him (Fleming) with a piece of wood. Walter Castleberry shot Mr. Fleming. Mr. Fleming shot Andrew Castleberry * * * the time Walter Castleberry started to shoot him somebody hollered, ‘let’s kill him’. I didn’t see anybody else out there other than this Albert McDowell where he came from * * * When Mr. Fleming fell Albert McDowell was hitting him with a piece of board; billet of wood; a piece of wood. I saw him hit Mr. Fleming twice. Walter Lewis stopped him. * * * He was hitting him on the head.”

Again the witness testified: "Charley Thompson commenced shooting when he turned his back and went to run. That thereafter Walter Castleberry had come up and started to shooting. Mr. Fleming made his break and Charley leveled down towards his back and shot him in the back. Charley Thompson shot him in the back. * * * It was all mighty nigh together. From the time Mr. Fleming shot Andrew until Walter had commenced shooting Mr. Fleming was not long.”

Appellant has filed a very able brief in which we think correct propositions of law have been stated and supported by the authorities cited and discussed. The difficulty we have in reaching the conclusions contended for by appellant lies in the fact that the evidence of this particular case appears to be distinguishable from that in the cases relied upon. The foregoing quoted testimony from the state’s witness on the subject is sufficient alone to warrant the jury in finding that the appellant in the instant case entered spontaneously into a murderous design in response to the challenge uttered, “Let’s kill him”.

Walker v. State, 29 Tex.App. 621, 16 S.W. 548, is in point, but is distinguished by the following statement found in the opinion: “It was not shown, however, that defendant knew of his companion's intention to take the other’s life, and it was not contended that his blow added anything to the fatality of the pistol wound.”

From Buckley v. State, 78 Tex.Cr.R. 378, 181 S.W. 729, we quote: “Although defendant was present when one was killed by a fellow conspirator, yet, if there was a reasonable doubt as to whether he knew of such conspirator’s intent to commit an unlawful act that might lead to such killing, or that, if present, he did not aid or encourage such conspirator, he would be guilty of no offense.”

Mowery v. State, 132 Tex.Cr.R. 408, 105 S.W.2d 239, 240, follows the same theory, it being stated: "There is no evidence that the appellant knew that Shupback intended to kill the deceased. * * * Therefore, in order to hold appellant as a principal it was absolutely necessary for the state to show that he knew the unlawful intent of Shupback to inflict the fatal injury and knowing this unlawful intent he aided, abetted, or encouraged Shupback to do so.”

Appellant himself bases his claim for reversal on the. ground that, “the record is absolutely barren of any testimony which shows that appellant knew that Walter Castleberry or Charley Thompson was about to inflict injuries upon the deceased which would cause his death.” To this we cannot agree, and for that reason have reached the conclusion contrary to that contended for by appellant. The quoted testimony sustains us.

Finding no error of a material nature in the trial of the case, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant’s motion again challenges the sufficiency of the evidence, apparently on the ground that it is not certain whether he made the remark, “Let’s kill him,” referring to the constable. The facts have been reexamined. Appellant and everyone else present knew that pistols were being fired, which meant killing. We do not understand that appellant’s guilt turns upon the question of putting in his mouth the remark quoted. Appellant was striking deceased on the head immediately after he had been shot and was acting with those doing the shooting.

The motion for rehearing is overruled.


text:
    RAMOS v. STATE.
    No. 21436.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.
    L. R. Patton, of Galveston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for an assault with intent to commit rape. The punishment assessed is confinement in the penitentiary for a term of seven years.

The prosecutrix, a married woman and the mother of a nine-year-old girl, left her home about midnight and went to a saloon operated by Mexicans, where many Mexicans were assembled drinking, dancing, and having a hilarious time generally. Just why she went to that place at that time of the night is not disclosed by the recprd otherwise than that she had had a quarrel with her husband. She admitted. tfiat she had been out earlier in the night and partook of three or four drinks of whisky; that while in this Mexican saloon she danced with a Mexican whom she did not know; that when she left the saloon to go home she was overtaken by at least six Mexicans, who dragged her into an alley where they threw her down and'appellant got on top of her in an attempt to have sexual intercourse with her. She was unable to identify any of the assailants except the appellant. She reported the occurrence to her husband sometime that morning. She gave the officers a description of her assailants and some twenty Mexicans were arrested. The question of the identity of the appellant as the man who committed the offense was sharply contested.

Appellant’s defense was that of alibi and also that he was so highly intoxicated as to be unable to form a specific intent to commit the offense charged.

Appellant reserved a number of exceptions to the admission of the testimony and several exceptions to the court’s charge, but in view of the disposition we are making of the case, we deem it necessary to discuss only bills of exception Nos. 6, 7 and 9.

Bill of exception No. 6 shows that the State placed W. J. Burns, one of the officers who arrested appellant, on the witness-stand and propounded, to him the following question: “When you brought this defendant to her, did she or not identify him as the party?” The witness replied, “Yes, she identified him.” Bill No. 7 shows that, said officer was then asked by the State: “When you brought this defendant to her, what, if anything, did she say?” The officer replied: “When we brought him into the room this woman looked at him and said, ‘That is him’, and became hysterical, and she said, ‘Please take him out of here’.”

The objection to this testimony was that it was hearsay and not corroborative of the téstimony of the prosecutrix. We think appellant’s position is well founded. The statements made by her to the officers was not a complaint of the transaction soon after its commission. She had already-made a report thereof to her husband and to the officers. The fact that she became hysterical and said, “Please take him out of here”, and that the officer took appellant out, was hearsay and obviously inadmissible ; and the court should have sustained appellant’s objection and excluded the testimony. The State could not bolster up the testimony of the prosecutrix by her conduct and by what she said to the officers, unless the defendant had first shown that she made statements after the alleged occurrence at variance with her testimony relative to the identification of appellant. A similar question to the one here presented was discussed by this court in the case of Reddick v. State, 35 Tex.Cr.R. 463, 34 S.W. 274, 60 Am.St.Rep. 56; also in Johnson v. State, 94 Tex.Cr.R. 238, 250 S.W. 681, and cases there cited, all of which sustain the appellant’s contention.

Bill of Exception No. 9 shows that Police Officer Van de Gear, on direct examination by the State, was asked the following question : “State whether or not she identified this man as being the man she was charging ?”

The officer replied: “She positively identified him and asked us to please take him out of the room.”

What we have said with reference to the foregoing bills of exception applies here and we see no need for a further discussion of the question. That the trial court fell into error in overruling appellant’s objections is amply supported by the authorities above cited.

In the case of Johnson v. State, 94 Tex.Cr.R. 238, 250 S.W. 681, 682, the offense charged was robbery. The appellant’s defense was alibi. On rebuttal, the State called Officer Whitlock, who swore that upon hearing of the robbery and after a conversation with Hadnot, he arrested the accused. The State asked him the following question, “Upon whose information did you arrest the defendant?” Appellant objected to this and also to the testimony of said witness that Hadnot gave him a description of the appellant as the other man who was with him at the time of the robbery, and said that the other man’s name was Paul, and that with this description he arrested the accused. The objection was that it was out of the presence and hearing of the accused and was hearsay. In disposing of the question, Judge Lattimore said: “We find ourselves unable to escape the conclusion that the objection should have been sustained. We also think that the testimony of said officer to the fact that Hadnot identified appellant after his arrest as being the man who was with him, and that there was no hesitation in his identification, was inadmissible.”

A number of cases are cited in support of the proposition that testimony of identification is not admissible to corroborate the accomplice or to support the State’s theory in the Johnson case, supra.

The court, among other things, instructed the jury as follows:

“That neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, constitutes in this State any excuse for the commission of crime, nor does intoxication mitigate either the degree or penalty of crime, but evidence of temporary insanity, produced by such recent use of ardent spirits, should be considered in mitigation of the penalty attached to the offense for which the defendant is on trial.
“However, to be considered at all, the use of ardent spirits must have been indulged to the extent of producing temporary insanity, which is that degree of insanity that deprives the person of the capacity and power to distinguish between right and wrong as to the particular act charged against him, etc.”

Appellant objected to this instruction because it did not affirmatively present his defense and was a limitation thereon, and requested the court to give the following special charge: “The jury may take into consideration the evidence before them as to the drunkenness of the defendant at the time of the said assault, if any was made, in determining whether the defendant had at the time the present ability to have had sexual intercourse with the prosecuting witness and if you find from the evidence that the defendant had no present ability to have said intercourse you will find the defendant not guilty and acquit him.”

Appellant also requested the following special charge: “The jury may take into consideration the evidence before them as to the drunkenness of the defendant at the time of the alleged assault, if any, was made, in determining whether the defendant had at the time the specific intent to commit the offense of rape, as that offense is defined in the charge of the Court.”

The court overruled the appellant's objections and declined to give the special requested instructions, to which appellant in due time excepted.

Appellant cites us to the pase of Reagan v. State, 28 Tex.App. 227, 12 S.W. 601, 19 Am.St.Rep. 833, as supporting his contention, which it does, but .that case was overruled in Evers v. State, 31 Tex.Cr.R. 318, 20 S.W. 744, 18 L.R.A. 421, 37 Am.St.Rep. 811, and the rule therein announced was followed and adhered to in the following cases: Clinton v. State, 132 Tex.Cr.R. 303, 104 S.W.2d 39; Kelley v. State, 133 Tex.Cr.R. 460, 112 S.W.2d 470; Fernandez v. State, 135 Tex.Cr.R. 12, 116 S.W.2d 1067; Wair v. State, 137 Tex.Cr.R. 506, 131 S.W.2d 155, 1119. We deem the court’s charge a correct instruction relative to Art. 36, P.C., on the subject of intoxication produced by the' recent use of ardent spirits.

The court’s charge as a whole is deemed a sufficient application of the law to the facts of this case.

For the errors herein discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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


text:
    JOHNSON v. STATE.
    No. 21373.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1941.
    Rehearing Denied Feb. 19, 1941.

      Robert P. Brown and Charles Gibbs, both of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is driving an automobile on the streets of the City of San Angelo while drunk. The punishment assessed is confinement in the state penitentiary for a term of one year and one day.

The State’s testimony, briefly stated, shows that on the night of February 6, 1940, while appellant was driving her automobile upon and along the streets of the City of San Angelo, she ran into another car. As a result of the collision, her automobile, as well as the other car, was rather badly damaged, and she was bruised about her head and body. She was immediately taken to a hospital in an ambulance for treatment. The doctors who administered to her testified that they smelled the odor of liquor on her breath. From their conversations with her and the odor of liquor upon her breath, they concluded that she was drunk. A city policeman who went to the hospital and assisted in carrying her from the emergency room to the X-ray room, testified that from the manner of her speech, talk and having smelled the odor of beer upon her breath, it was his opinion that she w'as drunk.

Appellant took the witness stand and denied that she was drunk. She said that she drank only two bottles of beer that evening.

George Phillips testified that he was at appellant’s home about 9 or 9:30 o’clock on the night in question with a view of selling her some rock-wool insulation for her home; that she did not show any sign of being intoxicated; that he had seen many drunk people; that he talked to them and observed them, but during his visit to the appellant’s home, he noticed nothing which indicated that she was intoxicated.

Bill of Exception No. 1 complains of the following testimony elicited by'the State from Mr. Green, a city policeman, to-wit: “I was close enough to her to smell her breath. I could smell beer on her breath. I observed her talk and manner of speech and she talked like any drunk person to me.”

Appellant objected to the testimony quoted because ⅛ was but the expression of an opinion and conclusion without stating any facts as a basis for the conclusion and therefore prejudicial. It occurs to us that there is no merit in her contention. In this connection, we quote from the syllabus in the case of Inness v. State, 106 Tex.Cr.R. 524, 293 S.W. 821, as follows: “‘A non-expert witness may testify that the accused or some other person was intoxicated on a given date.’ .Drunkenness is of such common occurrence that its recognition requires no scientific knowledge, and it is. a well-settled general rule that a witness, not an expert, may give his opinion as to whether or not a person is intoxicated, when he has had the opportunity to observe the facts upon which he bases his opinion, and such testimony is not circumstantial, but is direct.”

See collation of authorities in opinion on motion for rehearing. See, also, Riddle v. State, 107 Tex.Cr.R. 571, 298 S.W. 580, and cases cited.

By Bill of Exception No. 2 appellant complains of the following testimony elicited by the State from Dr. Stanley: “I could smell alcohol on her breath; it smelled as if she had been drinking some liquor but I couldn’t tell you the type.”

It is our opinion that this testimony was admissible. The doctor, no doubt, was familiar with the odor of alcohol and recognized it when he smelled it. Although he was unable to determine or remember its kind or type, the character of the intoxicating liquor which she had imbibed was of little, if any, moment. The main and principal question before the court and jury was whether or not the appellant was drunk.

Bill of Exception No. 3 reflects the following occurrence: After Gordon Kenley, an insurance adjuster, had testified on direct examination as to appellant’s general bad reputation, he testified on cross-examination by appellant, as follows: “I have talked to several insurance adjusters here about her reputation. I have talked to Mr. Horton, to Mr. Pate, and with Mr. Foster. We talked about the claims. * * * I have paid some claims on her. * * * I was not mad about it. I am not mad at her. *. * * Because we have had to pay some claims is not the reason I dislike her.”

On redirect examination by the State the witness testified: “We paid one liability claim at Odessa and we paid on another on Oakes Street here in San Angelo three or four years ago. Those are the only two we have paid off.”

Appellant objected to the testimony elicited from the witness on re-direct examination by the State on the ground that it was prejudicial and solved no issue in the case. Whether it was prejudicial or not need not be discussed here. Appellant first brought out the fact that the witness, on behalf of the Insurance Company, had paid some claims on her; consequently she will not be heard to complain of similar testimony developed by the State. She first invaded that field, and explored it, found what she deemed pertinent, and then when the State merely showed the exact number of claims against her, that were paid, she complains. We are constrained to overrule her contention.

By Bill of Exception No. 4 appellant complains of the following remarks made by the District Attorney during his closing argument to the jury: “Counsel for defendant has gone out of the record to tell you that if you give this defendant a fine and jail sentence; the Court would be required in that event to suspend her right to drive an automobile for a period of six months; and since he has gone out of the record to tell you that, I will tell you that if you should suspend the sentence, if she is found guilty, under the law she would not lose her right to drive.”

Appellant’s objection to the argument was based on the ground that it was inflammatory and prejudicial and that it was an unsworn statement outside of the record and not a proper comment on the evidence in the case. It is obvious from the argument complained of that defendant’s counsel had invited the argument of which he complains.

In the case of Campbell v. State, 62 Tex.Cr.R. 561, 138 S.W. 607, 609, this court said: “When defendant’s counsel discusses matters outside of the record, they cannot be heard to complain when the court permits opposing counsel to reply. All of this was improper in the absence of any testimony before the jury as to Mrs. Campbell’s condition; but, the defendant having first referred to these extrinsic matters, he ought not now be permitted to complain when the objectionable remarks were in direct response to his criticisms.”

See Fluewellian v. State, 59 Tex.Cr.R. 334, 128 S.W. 621; Roberts v. State, 60 Tex.Cr.R. Ill, 131 S.W. 321; Hilcher v. State, 60 Tex.Cr.R. 180, 131 S.W. 592; Branch’s Ann.Tex.P.C., Sec. 363.

By Bill of Exception No. 5, appellant complains of the following remarks made by the District Attorney in his closing argument to the jury: “I don’t know how you feel about these drunken driving cases, but I will say that if you don’t do something about these cases, it may be your wife and your children the next time that will be run over and knocked one-third or one-half a block down the street.”

Appellant objected to this argument upon the same grounds stated in Bill No. 4. It occurs to us that this argument was justified by the evidence. There was testimony that the appellant was drunk at the time in question; and it is equally true that the Legislature intended that something had to be done about “these drunken driving cases”, and therefore passed the law under which this prosecution was initiated. The object and purpose of the law is to prevent men, women and children from being wounded and maimed by persons driving automobiles while in a state of intoxication. Consequently, we are of the opinion that the argument was not entirely outside the record or an unreasonable deduction from the testimony.

By Bill of Exception No. 6 appellant complains of the following remarks by the District Attorney in his argument to the jury: “Counsel has told you, without having any evidence in the record to support it, that the State should have had the driver of the car that was hit here to testify as to whether or not the defendant was drunk. He testified to you in his argument that the driver was in a position to know her condition. Since he has gone out of the record to tell .you that, I will tell you that the driver of the car that was hit didn’t observe the condition of the defendant. He was not able to. The evidence shows this car was knocked for a distance of one-third or one-half block from where it was hit.”

Appellant again objected to the argument on the ground that it was inflammatory and prejudicial, being an unsworn statement and outside the record, and not a proper comment upon the evidence adduced upon the trial. The argument here complained of clearly shows that it was invited by defendant’s counsel. .He was bitterly, complaining of the fact that the State had failed to produce the witness whose car was hit by that of the appeljant and to have him testify as to whether or not the defendant was drunk. There was no testimony in the record that the driver of the car which was hit, either before, at the time of, or soon after the collision, was close enough to the appellant or in a position to observe her, in order to know whether or not she was drunk. That the car into which the appellant drove her automobile was knocked a distance of approximately one-third of a block is shown by the testimony in the case. What we have said in disposing of Bill of Exception No. 4 applies here and we do not believe that it would serve any useful purpose to here reiterate what we have heretofore said.

By Bill of Exception No. 1 appellant complains of the action of the trial court in overruling his amended motion for a new trial based upon various grounds, namely, the admission of testimony, the arguments of the District Attorney, all of which have been brought forward by proper bills of exception, and on the further ground of misconduct of the jury in this: that after having retired to consider their verdict, they received other unsworn testimony from one or more of their members which was irrelevant, immaterial, inflammatory and prejudicial to the rights of the defendant in that said jurors, in substance, made the following statements:

“That the defendant was an immoral woman and ought to be sent to the penitentiary.”
“The defendant is a mere nobody. She doesn’t amount to anything and should be ■sent to the penitentiary.”
“The defendant has been taking high-school girls out to her house where she lives for immoral purposes.”

The court heard the testimony of the jurors relative to the allegations contained in the motion, but none of them testified that any member had stated during their deliberations that the appellant was an immoral woman or that she had taken high school girls out to her home for immoral purposes; that the only remark made was that of two of the jurors to the effect that appellant was not “a good woman”. When asked what was meant by the statement that she was not “a good woman,” the juror answered: “A good woman usually stays home and attends to her own business, takes care of the family and household and all that sort of thing and don’t go places she don’t have-to go, and don’t drive a car while drunk, and one thing and another.”

The other jurors who were called to testify stated that they did not hear any such ■remarks.

After hearing the testimony, the court •overruled the motion to which appellant then and there excepted and brings forward for review the rulings of the court relative thereto. We are not prepared to -.say that under the facts disclosed by this record the remark of the juror that the .appellant was not “a good Woman” is not a proper deduction from the facts and entirely unjustified. It occurs to us that the juror’s interpretation of what is meant by “a good woman” is in accord with the general prevailing opinion of many sober-minded people that good women do not get drunk and recklessly drive automobiles upon the streets of a city while in such condition. Good women, like good men, respect and observe the law and do not wil-fully and with impunity disregard it. Moreover, there was testimony that the appellant’s general reputation was bad. Whenever such testimony is adduced before the jury, they are authorized to discuss it. See Brice v. State, Tex.Cr.App,, 61 S.W. 121.

No reversible error having been discovered from a review of the record, the judgment of the trial court' is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In connection with her motion for rehearing appellant presents an affidavit of one of her attorneys to the effect that in preparing bill of exception No. 7, relative to alleged misconduct of the jury, the testimony of Juror Ray was omitted through inadvertencé and oversight. Appellant requests that the bill of exception be supplemented or amended by referring to a transcript of the testimony of the jurors which appears to have been filed in this court January 27, 1941, which was twelve days after the original opinion was delivered herein. Such transcript of testimony does not appear to have ever been filed in the trial court. Notice of appeal was given in the trial court June 17, 1940. Appellant had ninety days from that date to, file in the trial court the testimony adduced upon the motion for new trial. It is manifest that we are not warranted in considering such transcript for any purpose. As the term implies, the transcript is in question and answer form. No certificate of the trial judge is appended showing the necessity for such form. Hence if it had been timely filed in the court below, we would not be authorized to consider it upon the appeal. See Bierworth v. State, 136 Tex.Cr.R. 274, 124 S.W.2d 1004.

It might be added that bill of exception No. 7 cannot be amended or supplemented at this time, the sanie rule being applicable to bills of exception as has been given application to an attempt to amend or supplement the statement of facts after the record has been filed in this court. We quote from McBride v. State, 93 Tex.Cr.R. 257, 246 S.W. 394, as follows:

“The original opinion will disclose that this case was reversed because the statement of facts failed to contain the alleged forged check. The state now files a motion for rehearing, submitting in connection therewith the certificate of the trial judge and the affidavits of the district attorney and the court reporter to the effect that the check with the indorsements thereon was in truth and in fact introduced in evidence.
“The effect of the motion is a request that this court permit the amendment of the statement of facts originally sent '.to this court. We do not doubt the correctness of.the certificate of the trial- judge, nor of the affidavits in connection therewith relative to the check actually having been’ introduced in. evidence. • Notwithstanding this, we are not" permitted to consider them. McConnell v. State, 85 Tex.Cr.R. 409, 212 S.W. 498, is a case 'directly in point; where the state was attempting to supplement the statement of facts upon the very issue involved in the instant case, but' was denied that right. In Gherke v. State, 59 Tex.Cr.R. 508, 128 S.W. 380, the matter was presented from the other angle. In that case the alleged forged check had been omitted from the record, and for some reason appellant’was seeking to supply the same. We quote the following from that opinion:
‘After the statement of facts has been approved and the record máde up we know. of no rule of practice that will authorize parties to the case to add anything to the statement of facts. Here the appellant complains that the check was introduced" in evidence but he omitted to have it ’ copied in the statement of facts and he now asks that this omission be supplied by allowing the statement of facts to be amended so that said check may be incorporated. This cannot be done. If the rule. insisted upon in this case should obtain and this court would hold that this omission could be supplied, we would find ourselves confronted with the proposition that statements of facts could be amended after the record reached this court.’ ”

See, also, Weeks v. State, 134 Tex.Cr.R. 69, 113 S.W.2d 532; Rountree v. State, 128 Tex.Cr.R. 28, 78 S.W.2d 629; Ex parte Kennedy, 126 Tex.Cr.R. 653, 72 S.W.2d 915; Davidson v. State, 109 Tex.Cr.R. 251, 4 S.W.2d 74; Hurd v. State, 99 Tex.Cr.R. 388, 269 S.W. 439; and Brande v. State, Tex.Cr.App., 45 S.W. 17.

Appellant points out in her motion for rehearing that we did not set ,out in our original opinion all of the testimony of Juror Clark. It is true that we did not undertake to set out such testimony in detail. However, it has been observed, as shown in the original -opinion, some of the jurors stated that the appellant was not a good woman. The juror understood these statements to mean, among other things, that she was- not a good woman because she had driven an automobile while intoxicated. When we look to bill of exception No. 7 relating to the alleged. misconduct of the jury, we find that Juror Clark testified that he heard no one say in “exact words” that appellant 'was an immoral woman. He said: “I will not..say they were said, but it was in a manner' that way, but they did say she ought to be sent to the penitentiary/that she wasn’t a good woman.” Upon being questioned' by counsel for appellant as to whether the' juror understood from the statements he heard that appellant was a “kept woman” he replied, “I donft recall any of them using exactly that word. * * * They said if we could send her to the penitentiary we could get her off-the street.” Again,.the juror was asked by appellant’s counsel if there was anything said that led him to believe that appellant' was a “kept woman”. He replied, “Well, there was so much going on in there I can’t get the whole drift of everything * * * Frankly, I don’t remember.” Again, he testified that he got the impression- from what he heard that appellant was an immoral woman. He testified, further, . that he would not - swear that he gained such impression from.any remarks made by the jurors during the discussion of the case. He did. not remember, according to his version, the name of any person referring to the appellant as a woman of the type mentioned. Appellant’s counsel propounded this question to the juror: “It was from what was said by the jury or some member of the jury that made you arrive at that conclusion?” The juror answered, “Yes, or it might have been my own conclusion.” Two jurors testified that they heard no statement by any member ot the jury to the effect that appellant was an immoral woman. The remainder of the jurors were in attendance upon the court at the request of the appellant but were not introduced' upon the hearing of the motion.

We think it is apparent from the testimony of Juror Clark that he did not place himself in the attitude of testifying positively that any juror referred to appellant as an immoral woman. On the contrary, the testimony in its entirety warranted the conclusion that no such statement was made. It follows from what we have said that we are of opinion the trial' judge was warranted in finding that the misconduct complained of in the motion for new trial did not occur. The granting of a new trial for misconduct of the jury is largely in the discretion’ of the trial court, whose action in refusing a new trial will not be disturbed in the absence of an abuse, of such discretion. Johnson v. State, 118 Tex.Cr.R. 454, 40 S.W.2d 111. The opinion is expressed that an abuse of discretion is not shown.

We .think we made proper disposition in the original opinion of bill of exception No. 4.

As to bill of exception No. 5, which relates to the argument of the district attorney, and which was discussed in the original opinion, we find that the trial court did not certify that the argument was made; but, on the contrary, he qualifies the bill of exception with the statement that he had “no recollection whatever” of the district attorney having made the argument as set out in the bill. In Clayton v. State, 108 Tex.Cr.R. 19, 298 S.W. 601, 603, this court said: “In qualifying this bill, the court states that he is unable to recall any such argument made by the district attorney relative to the grand jury, and that the district attorney denied having made any such statement.” The court held in Clayton’s case that the bill, as qualified, was equivalent to no bill at all in that the.trial court failed to certify that the argument complained of was actually made. In 4 Texas Jurisprudence, 389, it is said: “A bill of exceptions complaining of the argument or remarks of the attorney for the state must, of itself, manifest the error complained of. Accordingly, it must set out as a fact that the language • complained of was used. * ⅜ ⅜ »

Appellant filed her application for a suspended sentence. She contends that, notwithstanding she failed to except to the charge of the court and brought no bill of exception forward complaining of any omission from the charge, that she was entitled to have the term “good behavior” defined. If it should be conceded that it would have been proper to have given the charge — and this is not conceded — -this court is in no position to review the question. Article 658, C.C.P., Vernon’s Ann. C.C.P. Art. 658, provides, in part,, that before the charge is read to the jury objections thereto shall be made in writing and that the grounds of objection shall be distinctly specified. Article 666, C.C.P., reads, in part, as•’follows: “All objections to the charge and to the refusal or modification of' special charges shall be 'made at the time of the trial.”

We' have carefully considered all questions presented in the motion for rehearing and are of opinion that reversible error is not presented.

The motion for rehearing is overruled.

PER CURIAM.

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


text:
    GORDON v. STATE.
    No. 21443.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1941.

      T. O. Murray, of McKinney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for unlawfully driving an automobile upon the public highway while intoxicated. The penalty assessed is a fine, of $50 and confinement in the county jail for a term of five days.

The record is before us without a statement of facts or bills of exception. Apr pellant entered a plea of guilty to the offense charged in the indictment. Consequently there is nothing presented for review.

The judgment is affirmed.

PER CURIAM.

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


author: WALKER, Chief Justice.

text:
    WOOD et al. v. GULF OIL CORPORATION.
    No. 3768.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 30, 1941.
    Rehearing Denied Feb. 12, 1941.
    Gerald C. Mann, Atty. Gen., Jas. P. Hart, D. D. Mahon, and Edgar W. Cale. Asst. Attys. Gen., Pollard & Lawrence and William S. Reeves, all of Tyler, for appellants.
    Stanley Hornsby, of Austin, and Joe S. Brown, of Houston, for appellee.
   WALKER, Chief Justice.

A Rule 37 case; for a statement of this rule see Gulf Land Co. et al. v. Atlantic Ref. Co., 134 Tex. 59, 131 S.W.2d 73. The suit was by appellee, Gulf Oil Corporation, against appellants, Fox Wood and “Penn Oil Company” and the Railroad Commission of Texas; the nature and result of the suit is thus stated in the judgment:

“It is therefore ordered, adjudged and decreed on this, 7th day of March, 1940, that the order of the Railroad Commission of Texas entered in Rule 37 case No. 27691, dated December 17, 1938, granting to Fox Wood and ‘Penn Oil Company’ a permit to drill and produce a well to be known as well No. 6 on the Lillie B. Morse 5.25 acre lease in the R. W. Smith Survey 'in Rusk County, Texas, and approving the location of said well, and the further order of the Railroad Commission of Texas entered in Rule 37 Case No. 27691, dated February 14, 1939, reaffirming the said order of December 17, 1938, for such well No. 6, at a location described in each of said orders of the Railroad Commission as follows:
“128 feet south of the north line;
“128 feet east of the easterly west line, be, and each of said orders is hereby, annulled, cancelled, and set aside, and adjudged to be wholly null and void, and judgment is hereby rendered denying the permit to drill said well No. 6.”

The appeal was prosecuted to the Austin Court of Civil Appeals, and is-on the docket of this court by order of transfer by the Supreme Court.

We take the following statement from appellee’s brief:

“On December 17, 1938, the Commission granted an exception to its spacing rules governing the East Texas Field to Fox Wood and Penn Oil Corporation to drill well No. 6 on a recited ‘about 7 acres’ in R. W. Smith Survey in Rusk County, Texas. By order dated February 14, 1939, the Commission reaffirmed this permit for well No. 6 on ‘5.25’ acres.
“It was agreed that each well in the area under discussion is permitted to produce, Under the allowable orders of the Commission, twenty barrels per day.
“It is undisputed that the Woodbine sand, from which the oil is being produced, is a continuous, bed of oil producing sand known as a ‘blanket’ sand, and is entirely pressure connected, which creates a common pool.
“The undisputed evidence before the Railroad Commission showed that Fox Wood with five wells on his 5.25-acre tract had a density of a well to each 1.05 acres, whereas the eight times rectangular area surrounding such tract had a density of a well to each 1.70 acres, and the circular eight times area surrounding such tract had a density of a well to each 1.65 acres. This density advantage is also shown by the figures indicated on the plat appearing in the brief of the Railroad Commission of Texas. The memorandum of the Examiner who conducted for the Commission the hearing upon the application of well No. 6 states in part as follows:
“ ‘Protestants submit a density statement showing that applicant is now at a density advantage under any of the usual methods of density comparison considered by the Commission.’
“The density advantage of the Fox Wood tract under all the usual methods of comparison is further disclosed by the statements attached to the surveyed plat introduced in evidence by appellee.
“Appellant’s witness Griffin further testified as follows:
“ ‘Q. Let’s get straightened out about the drainage to and from the Fox Wood tract, in. your opinion. Would the wells as now located and drilled on the Fox Wood tract, what is your conclusion as to whether or not more oil is being drained from the Fox Wood tract than the Fox Wood is draining from the other tracts, and in answering that question I ask you to take into consideration the entire Fox Wood tract, including the one acre to the — lying in the Cooper Survey, and the portion of the Nantz tract which lies to west of the area you have been discussing. A. In a ease of that sort, I believe that the Fox Wood would have an advantage in drainage.’
“Such witness Griffin further testified as follows:
“ ‘Q. And it is true that with the five wells they have a drainage advantage, and an advantage in opportunity to produce? A. Let me check that just a minute, I would say they had a slight advantage.’
“Appellant’s own witness, Griffin, further testified as follows:
“ ‘Q. To sum this up and shorten it, it is your testimony, as I understand it, that with the consideration of the Fox Wood tract, as it is shown on plaintiff’s exhibit No. 68, that with the five wells now drilled, and producing thereon, it has an equal opportunity with the adjacent leases, and that during its producing life there will be produced more than the amount of recoverable oil underlying it? A. That is true. That would be true, due tb its structural position, as it would be in other instances in that area.’
“Mr. Parker testified that there had been approximately' 219,000 barrels of recoverable oil originally in place beneath the Fox Wood tract; and that based upon the Comptroller’s figures of production the Fox Wood wells had already produced within 18,960 barrels of the amount of recoverable oil originally in place, and that the wells would continue to produce for 10 or IS years longer.
“The undisputed evidence further discloses that the tracts adjacent to the Fox Wood tract, even including the wells in litigation, are permitted to produce under the Commission’s rules at the rate of 6.8 barrels per acre per day, whereas the Fox Wood tract with S wells is permitted to produce 21.2 barrels per acre per day.
“It was further undisputed that there was approximately the same amount of recoverable oil originally in place per acre underlying the Fox Wood tract and equal sized areas of the adjacent tracts surrounding it; and likewise the amount of recoverable oil per acre at the present time under each acre of such areas is approximately the same.”

We make the following additional statement:

(1) The permit was granted “to prevent confiscation of property,” and on no other ground.

(2) In its brief the Railroad Commission says that the permit “was not granted solely as an offset to any particular well, but rather that the permit location here contested was situated in the center of a very densely drilled area * * *. It merely happens to be a coincidence that in the area surrounding the Fox Wood lease, there are eight producing oil wells whose permits to drill and produce are under attack in a court of competent jurisdiction.”

(3) Of the eight permits granted to drill wells in the area surrounding well No. 6, now “under attack in a court of competent jurisdiction,” two have been cancelled. Allen v. Gulf Oil Corporation, Tex.Civ.App., 139 S.W.2d 207; Gulf Oil Corporation v. James T. Smith, Tex.Civ.App., 145 S.W.2d 280.

The undisputed facts do not support the.issue of “confiscation,” the only ground upon which the permit was granted. The test of this issue is whether the owner with the wells he already had “has been given a fair and equal opportunity with other producers on surrounding tracts within the drainage area to recover his fair share of the oil in place beneath his tract. If he has, no confiscation results.” Ward Oil Corp. v. Overton Ref. Co., Tex.Civ.App., 139 S.W.2d 292, 293. This rule was also clearly announced by the Supreme Court in Gulf Land Co. v. Atlantic Ref. Co., supra. The well potential and daily allowables for wells surrounding the well in issue were substantially the same. With five wells in operation, the density of Fox Wood and Penn Oil Company was greater than the eight times surrounding area, whether delineated by a square or circle. Its recovery of oil per day per acre under the allowables was greater, much greater, than that of the surrounding drainage area delineated by a square or circle; well No. 6 would materially increase this disparity.

General American Oil Co. of Texas v. Gulf Oil Corp., Tex.Civ.App., 139 S.W.2d 314, supports appellee’s counter proposition : “Where the validity of a Rule 37 permit is already under attack in a court of competent jurisdiction, the Commission may not properly ignore the jurisdiction of the court and consider the permit then under attack as the basis for granting additional permits.”

If the eight wells under attack are not taken into consideration on the issue of “confiscation,” then the disparity in favor of appellant would be greatly increased.

As we understand the law and the facts, the Railroad Commission abused its discretion in granting appellants a permit to drill well No. 6, for which reason the judgment of the lower court cancelling this permit should be affirmed, and it is accordingly so ordered.

Affirmed.


author: JACKSON, Chief Justice.

text:
    PARKS v. KELLEY.
    No. 5253.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 27, 1941.
    Joseph H. Aynesworth, of Borger, and J. L. Lackey, of Stinnett, for appellant.
    J. W. Spivey, Jr., of Borger; and W. L. McConnell, of Panhandle, for appellee.
   JACKSON, Chief Justice.

This is a suit by appellee, W. L. Kelley, to recover the sum of $960 from the appellants, Thomas Parks and his'wife, Sallie Parks, for services appellee claims to have rendered to appellants as a pharmacist.

He alleges that appellants by contract employed him to work in their drugstore from January 1, 1935, to August 1, 1937, and agreed as a consideration for his services to furnish him an apartment for $20 per month and to pay him in addition $30 per month in money. He pleads the oral contract in sufficient detail; alleges that he is entitled to a balance of $960 which appellants refuse to pay. The appellee also sought to recover in the alternative — on a plea of quantum meruit — the reasonable value of his services from January 1, 1935, to August 1, 1937.

The appellants answered by demurrers, pleaded the coverture of Mrs. Parks, general denial, res judicata and estoppel based on the opinion of this court in a former appeal reported in 126 S.W.2d 534, and in addition urged as a defense the statutes of two and four years limitation. Vernon’s Ann.Civ.St. arts. 5526, 5527.

The court sustained Mrs. Parks’ plea of coverture and decreed that she go hence with her cost.

The jury found in effect in answer to the special issues submitted by the court that appellants had not agreed to pay appellee for his services for the time involved but that appellee had performed services for appellants with their knowledge and consent between September 16, 1935, and August 1, 1937, and that the value of such services in addition to the use and occupancy of the apartment furnished was $7 per month.

On these findings the court rendered judgment that appellee recover the sum of $157.50 with interest thereon at the rate of 6% per annum from the 1st day of August, 1937, and cost, from which judgment this appeal is prosecuted.

The appellant assigns as error the action of the court in submitting to the jury the issue on quantum meruit because he asserts such issue was not sufficiently alleged to authorize a recovery thereon.

The appellee alleged in the alternative that he had duly performed the services as clerk and registered pharmacist for the appellants in their drug store from January 1, 1935, until August 1, 1937, with the knowledge and consent of, and for the benefit of, appellants who knew that he expected remuneration in addition to the use of the apartment and that such services were of the reasonable value of $50 per month, amounting in the aggregate to $1,-550; that appellants were entitled to a credit for rent at $20 per month on the apartment, leaving a balance of $930 unpaid, and that by reason thereof the appellants were due him the reasonable worth of his services with legal interest which they refused to pay.

In our opinion these allegations were sufficient to authorize the submission of the issue of quantum meruit to the jury.

In Chambers v. Wyatt, Tex.Civ.App., 151 S.W. 864, 865, the court holds that quantum meruit was sufficiently pleaded where the petition alleged: “It was further alleged that after .the conveyance, and until a short time prior to her death, Catherine Williams had worked for Chambers as a servant, and the reasonable value of her service was $3 per week.”

See also Burton v. Ross, Tex.Civ.App., 251 S.W. 526; Mood v. Methodist Episcopal Church South, of Cisco, Tex.Com.App., 296 S.W. 506; Beckner et al. v. Barrett, Tex.Civ.App., 81 S.W.2d 719.

Quantum meruit is -founded upon the rule that it is inequitable for a party to refuse to pay for the benefits he received or for work performed for him with his knowledge and consent by someone who is authorized to expect remuneration therefor.

The appellant requested the court to direct a verdict in his behalf and assigns error in the failure of the court to comply with this request. However, this issue is not briefed, but an examination of the facts convinces us that the court properly submitted the case to the jury. The testimony shows that appellant’s pleas of limitation were not tenable, since the cause of action on a quantum meruit does not accrue nor limitation begin to run .until the services are performed or the obligation repudiated with knowledge of the obligee. 45 Tex. Jur. 330, para. 20. The opinion on the' former appeal does not sustain the plea of res judicata.

Finding np error presented, the judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    JONES et al. v. SMITH.
    No. 5694.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1941.

      Jones & Jones and C. A. Brian, all of Marshall, for appellants.
    Alton V. Grant, of Longview, for ap-pellee.
   JOHNSON, Chief Justice.

This appeal is from a judgment of the trial court overruling a plea of privilege. Appellee, Grover Smith, filed suit in the District Court of Gregg County against “the law firm of Jones & Jones, a copart-nership composed of Sol P. Jones and Franklin Jones of Harrison County, Texas, Tom P. Scott of McLennan County, and Jarold P. Knop of McLennan County, Texas, and Cecil Storey of Gregg County, Texas,” to recover damages claimed to have been sustained by plaintiff as the result of certain acts of defendants with reference to litigation, which acts plaintiff alleges interfered with and prevented a settlement that plaintiff was negotiating with third parties. S. P. Jones, Franklin Jones and the law offices of Jones & Jones, a partnership composed of S. P. Jones and Franklin Jones, in due time filed their verified plea of privilege to be sued in the county of their residence, alleging:

“Now come S. P. Jones, Franklin Jones and law offices of Jones & Jones, a partnership, defendants, and say that this court ought not to have or take further action or cognizance of this suit than to have the' same transferred to the District Court of Harrison County, Texas, because defendants say that S. P. Jones and Franklin Jones are partners in the law offices of Jones & Jones, a partnership, and that both S. P. Jones and Franklin Jones are not now and were not at the institution of this suit, nor at the time of the service of process on them respectively, nor at the time of the filing- of this plea, residents of the County of Gregg, the county in which this suit was instituted, and is now pending, but that each of said defendants is now and was at said times above described, a resident of Harrison County,. Texas, where he then and now resides, and that no exception to exclusive venue in the county of one’s residence provided by law exists in said cause; that this suit does not come within any of the exceptions provided by law in such cases, authorizing this suit to be brought or maintained in the County of Gregg, State of Texas, or elsewhere outside of the County of Harrison, State of Texas.
“Wherefore, defendants pray the court that the above suit be transferred to the District Court of Harrison County, Texas, and for such orders herein that may be proper and necessary.”

The plaintiff filed a controverting plea which contains a general demurrer to the above plea of privilege. Upon a hearing before the court plaintiff failed to introduce any evidence, but elected to stand on his general demurrer to the plea of privilege, whereupon the court overruled the plea of privilege, on the theory that same was subject to the general demurrer, because it did not specifically deny the venue facts alleged in plaintiff’s petition.

The plea of privilege in all respects complied with the provisions of the statute. R.S.1925, Article 2007, Vernon’s Ann.Civ.St. art. 2007. A plea of privilege conforming to the provisions of the statute is sufficient, and cannot be reached by general demurrer. Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867; Eppenauer v. Scruggs, Tex.Civ.App., 55 S.W.2d 254, 255; Fielder v. Parker, Tex.Civ.App., 119 S.W.2d 1089. The statute expressly provides: “ * * * and such plea of privilege when filed shall be prima facie proof of the defendant’s right to change of venue.” Upon the filing, in due time, of such a plea of privilege the burden is on the plaintiff both to allege and to prove the facts sustaining venue in the county where the suit is filed. Universal Credit Co. v. Dunklin, supra.

The judgment of the trial court is reversed; and as to appellants, the cause is ordered transferred to the District Court of Harrison County.