author: BROWN, Justice.

text:
    HAGGARD et al. v. McFARLAND et al. (two cases).
    Nos. 13971, 13972.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1939.
    Rehearing Denied Nov. 24, 1939.

      Samuels, Foster, Brown & McGee, of Fort Worth, and Harris & Martin, of Wichita Falls, for appellants.
    E. C. De Montel and Arch Dawson, both of Wichita Falls, for appellees.
   BROWN, Justice.

It having been agreed to by all interested parties that the facts adduced in the trial of one case should be considered as a part of the other cause, we have consolidated the two causes here.

The first suit is in trespass to try title and to recover damages, brought against-the former guardian, the surety on his guardianship bond, the grantee to whom he made a sale of certain lands owned by his wards, and the vendees of such grantee. The former wards, who have attained their several majorities, brought the suit. The second suit is a certiorari proceeding by the same plaintiffs against the same parties, the purpose of which'is to declare null and void all orders of the county court affecting the sale of the said wards’ properties, by the said guardian, because, as alleged, there was a failure to comply with section 4 of Article 4201, Revised Civil Statutes, and Article 4216 of said Statutes, Vernon’s Ann.Civ.St. arts. 4201, subd. 4, and 4216.

No effort was made to show that the properties did not bring an adequate price at the sale, and none to show that the wards did not receive full value of and for the purchase price.

In short, the contention by the wards, in the trial court, is that there, being no strict compliance with the provisions of Articles 4201 and 4216, Revised Civil Statutes, Vernon’s Ann.Civ.St. Arts. 4201, 4216, the ordqrs of the county court authorizing the sales and confirming the sales of the wards’ lands are absolutely void, and that no title passed by reason of such orders and the guardian’s deed executed by virtue thereof.

The two statutes on which the wards rely are as follows:

“Art. '4201. * * * Order of sale
“An order for the sale of real estate shall state:
“1. The property to be sold, giving such description of it as will identify it.
“2. Whether it is to be sold at public auction or at private sale, and if at public auction, the time and place of such sale.
“3. The necessity and purpose of such sale.
“4. That no sale made by the guardian pursuant thereto shall be confirmed, nor shall the title of the ward to such real estate pass to the purchaser, unless and until it shall first be found and determined by the Court, by an order duly made and entered to that effect, that the guardian’s general bond is in an amount equal to double the value of the personal property then on hand, including the amount for which said real estate may be sold, plus such additional sum as may, in the opinion of the Court, be necessary to protect the estate of the ward, and that the sureties on such bond are solvent, provided, however, that where the sale of such real estate is made to the owner or holder of a secured claim against the estate and the same is of the real estate securing such claim and is in full payment, liquidation, and satisfaction thereof, only the amount of cash, if any, actually received by such guardian in excess of the amount necessary to pay, liquidate and satisfy such claim in full, shall be considered, together with the other property of the estate, in passing upon the sufficiency of the, bond as hereinabove required.
“5. It shall require the sale to be made and the report thereof to be returned to the Court in accordance with the law.”
“Art. 4216. Action of the court * * *
“At any time after the expiration of five days after the filing of a report of sale, the Court shall inquire into the manner in which such sale was made, and hear evidence in support of or against such report, and if satisfied that such sale was fairly made and in conformity with law and that the guardian has on file a good and sufficient general bond in an amount equal to double the value of the personal property on hand, including the amount for which said real estate is being sold, plus such additional sum as may, in the opinion of the Court, be necessary to protect the estate of the ward; and if and when the guardian’s general bond has been examined by the Court and found to be in the amount above required with good and sufficient sureties thereon, as evidenced by an order duly made and entered by the Court to that effect, the Court shall cause to be entered a decree confirming such sale, and order the report of sale to be recorded by the Clerk, and the proper conveyance of the property sold to be made by the guardian to the purchaser, upon compliance by such purchaser with the terms of sale. The provisions of this Article shall be mandatory, and unless the Court shall first determine that the guardian’s bond is adequate and solvent as above set forth, as evidenced by an order made and entered by the Court to that effect, any sale of real estate hereafter made under the provisions of this Title shall be void.”

It being contended that the provisions of section 4 of Art. 4201 and of Art. 4216 were not complied with, the defendants below answered that there was a substantial compliance with the provisions of the two said statutes, and the trial in the certiorari proceedings being de novo in the District Court, they prayed that the orders of the County Court complained about be amended to correctly state the facts and proceedings before the County Court; that is to say, that correct orders be made by the District Court and same certified to the County Court for observance. This was done by the District Court.

The order of the County Court authorizing the first sale is as follows:

“On this 22 day of October, A. D. 1935, came on regularly to be heard in the guardianship of William Howard Haggard, John Chilson Haggard and Nancy Catherine Haggard, minors, the application of C. M. McFarland, Guardian of the estates of said minors, for the sale of real estate belonging to the estate of said minors; and it appearing to the court that due notice of said application has' been given, as required by law, and that the same has been filed herein for at least five days; and it further appearing to the court, that the income of the estate of said minors, and the personal property thereof, and the proceeds of previous sales, are insufficient for the education and maintenance of said wards and pay the debts against the estate of said minors, it is the opinion of the court that the sale of a part of the real estate of the estate of said wards is advisable and necessary and that said application should be granted, and that it is more advantageous to said estate to sell the following land mentioned in said application, to-wit:
“All of Blks Six (6), Seven (7) and Eight (8), League Four (4), Denton County School Lands; the North fifteen (15) acres of the West one-half (W-½) of Block Nine (9), League 4, Denton County School Land; the North 59 acres of the West eighty acres and the East Eighty (80) acres of Block Five (5), League Four (4), Denton County School Land, all of said land being located in Wichita County, Texas; subject to mineral deed recorded in Vol. 308, page 568, Deed Records of Wichita County, Texas.
“And it further appearing to the court that said land should be sold for cash at private sale, and that it is necessary that said land should be sold for the support and maintenance of said minors and to pay debts now long past due and owing by said estate.
“It is therefore ordered, adjudged and decreed by the court that the said C. M. McFarland, Guardian, as aforesaid, sell the above tract of land at private sale for cash, and that he execute and file herein a good and sufficient bond subject to the approval of this court, in an amount equal to twice the amount for which such land is sold, and that he make due report of said sale at the present term of this court in accordance with law.
“(Signed) H. W. Fillmore, County Judge, Wichita County, Texas.”

The order confirming this sale is as follows:

“On this the 19 day of November, A.D. 1935, came on to be heard in the Guardianship of William Howard Haggard, John Chilson Haggard, and Nancy Catherine Haggard, minors, the report of C. M. McFarland, guardian of the estate of said minors, of the sale of the tract of land hereinafter described, made- in obedience to the order of this court, made and entered on the 22'' day of October, A.D. 1935, and it appearing to the court, that said report of sale has been Bled and docketed in the manner and for the time required by law, and it further appearing upon examination and the evidence herein, that the said sale was fairly made and in conformity with the law, and that said guardian, C. M. McFarland, has filed a bond herein, as required by law, which has been duly approved by the court, and that said land brought a fair price; and it further appearing that Ben F. Jones became the purchaser of said land, at private sale for the sum o'f Six Thousand Two • Hundred Eighty ($6,-280.00) Dollars, payable in cash;, that said sale ought to be confirmed and that said land is described as follows:
“The North fifty-nine acres.of the west eighty acres, and the east 'eighty acres of Block Five, League Four, Denton County School land; all of Blocks Nos. six, seven and eight, League Four, Denton County School land; and the North fifteen acres of the West eighty acres of . Block nine, League Four, Denton County School land, all of said land being located in Wichita County, Texas, subject to the mineral deed recorded in Vol. 308, page 568, Deed Records of Wichita County, Texas.
“It is therefore ordered, adjudged and decreed by the court that said sale be and the same is in all respects approved and confirmed; and that the said report of said sale be recorded by the Clerk.
“It is further ordered that the said Guardian, C. M. McFarland, make a proper conveyance of said land to the said Ben F. Jones upon his compliance with the terms of said sale.
“(Signed) H. W. Fillmore, County Judge of Wichita County, Texas.”

The bond required is as follows:

“Whereas,-on the 22'' day of October,A.D. 1935, by an order of the county court in the above styled and numbered cause, C. M. McFarland, guardian of the estate of William Howard Haggard, John Chilson Haggard, and Nancy Catherine Haggard, minors, was authorized and ordered to sell the following described real estate, belonging to the estate of said minors, to-wit:
“The North fifty nine acres of-the West eighty acres, and the East Eighty acres of Block Five, League Four, Denton County School land; all of blocks Nos. six, seven and eight, League Four, Denton County School land; and the North fifteen acres-of the West eighty acres of Block Nine,. League Four, Denton County School land. All of said land being located in Wichita County, Texas, and containing six hundred thirty four (634) acres, more or less,, subject to mineral deed recorded in Vol. 308, page 568, Deed Records of Wichita. County, Texas.
“After filing herein a good and sufficient-bond, subject to the approval of the court,, in an amount equal to twice 'the amount for which such real estate is sold.
“And whereas, on the 12 day of November, A.D. 1935, C. M. McFarland, guardian of the estate of said minors, filed and reported under oath that he had sold said land to Ben F. Jones, for the sum of Six. thousand two hundred eighty ($6,280.00) Dollars which has been approved by the-court.
“Therefore, Know all Men by these Presents : That we, C. M. McFarland, as principal and the other signers hereto as sureties, are held and firmly bound unto H. W. Fillmore, Judge of the County Court of Wichita County, Texas, and his successors in office, in the sum of Twelve Thousand Seven Hundred ($12,700.00) dollars, conditioned that the above bounden C. M. McFarland, who has been appointed by. the-County Court of Wichita County, Texas,, guardian of the estate of William Howard. Haggard, John Chilson Haggard and Nancy Catherine Haggard, minors, will faithfully discharge the duties of guardian of the estate of said minors, according to law.
“Witness our signatures, on this, the-12'' day of November, A.D. 1935.
“(Signed) C. M. McFarland, Principal. National Surety Corporation, Surety, by Geo. N. Dwyer.”

The order of sale of second tract is as follows:

“On this 19th day of December, A.D. 1936, came on regularly to be heard in the guardianship of John Chilson Haggard and-Nancy Catherine Haggard, minors, the application of C. M..McFarland, guardian of the estates of the said minors, for the sale of real estate belonging to the estate of said minors; and it appearing to the court that due notice of application has been given as required by law and that the same has been filed herein for at least 5 days; and it further appearing to the court that said wards own only an undivided two-ninths (2/9) interest in said property described in said application and that it is the opinion of the court that the sale of said real estate is to the best interests of the estate of the said wards, and that said application should be granted.
“It is therefore ordered, adjudged and decreed by the court that guardian sell said two-ninths (2/9) interests in and to the east one-half of Block 9, League 4, Denton County School Land located in Wichita County, Texas, for the sum of ten dollars ($10.00) per acre. That same be sold at private sale for cash, and that said guardian execute and file herein a good and sufficient bond subject to the approval of the court, in an amount equal to twice the amount for which the interests of said wards in said land' is sold, and that he make due return of said sale at the present term of this court in accordance with law.
“(Signed) H. W. Fillmore, County Judge of Wichita County.”

The bond required is as follows:

“Whereas, on the 19th day of December, A. D. 1936, by an order of the Couiity Court in the above styled and numbered cause C. M. McFarland, guardian of the estate of John Chilson Haggard and Nancy Catherine Haggard, minors, was authorized and ordered to sell the following described real estate, belonging to the estate of said minors, to-wit:
“An undivided 2/9 interest in and to the East one-half (E.j^) of Block No. 9, League No. 4, Denton County School Land, located in Wichita County, Texas, after first having filed herein a good and sufficient bond subject to the approval of the court in an amount equal to- twice the amount for which such real estate was sold.
“And whereas, on the 22nd day of December, A. D. 1936, C. M. McFarland, guardian of the estate of said minors, filed and reported unde.r oath that he had sold said land to J. J. Perkins and L. H. Cullum for the sum of One Hundred and Seventy-seven and 7%oo ($177.77) Dollars, which sale has been authorized and approved by the court.
“Now therefore, know all men by these presents: that we, C. M. McFarland, as principal, and the other signers hereto as sureties are held and firmly bound unto H. W. Fillmore, Judge of the County Court, of Wichita County, Texas, and his successors in office in the sum of Four Hundred ($400.00) Dollars, conditioned that the above bounden C. M. McFarland, who has been appointed by the county court of Wichita County, Texas, guardian of the estate of John Chilson Haggard and Nancy Catherine Haggard, minors, will faithfully discharge the duties of guardian of the estate of said minors, according to law.
“Witness his hand this 3" day of January, A. D. 1937.
“(Signed) C. M. McFarland, Principal. National Surety Corporation, by Geo. N. Dwyer, attorney in fact.”

The order confirming the sale is as follows :

“On this 4th day of January, A. D. 1937, came on to be heard in the guardianship of John Chilson Haggard and Nancy Catherine Haggard, minors, the report of C. M. McFarland, guardian of the estate of said minors, of the sale of the tract of land hereinafter described made in obedience to the order of this court made and entered on the 19th day of December, A. D. 1936, and it appearing to the court that said report of sale has been filed and docketed in the manner and for the time required by law, and it further appearing on examination and evidence heard herein that the said sale was fairly made and in conformity with the law, and that said guardian, C. M. McFarland, has filed a bond herein as required by law and approved by the court, and that said land brought a fair price; and it further appearing that J. J. Perkins and L. H. Cullum became the purchasers of said land at private sale for the sum of One hundred and seventy-seven and 7%o ($177.77) Dollars, payable in cash. And that said sale ought to be confirmed and that said land is described as follows, to-wit:
“An undivided 2/9 interest in and to the East one-half (E.%) of Block No. 9, League No. 4, Denton County School Land, located in Wichita County, Texas.
“It is therefore ordered, adjudged and decreed by the court that such sale be and the same is hereby in all respects approved and confirmed; and that the said report of said sale be recorded by the clerk, and that the said guardian, C. M. McFarland, make a proper conveyance of said land to the J. J. Perkins and,L. H. Cullum upon their compliance with the terms of said sale.
“(Signed) LI. W. Fillmore, County Judge of Wichita County, Texas.”

The District Court, before whom the case was tried without a jury, rendered judgment for the defendants (appellees here) in both cases, and the former wards, plaintiffs below, have appealed.

We have said that it is not contended that the lands were sold for an inadequate price, nor that the minors have not received the full benefit of the purchase price, and it is not contended that there is any fraud, accident or mutual mistake that enters into the transactions between the guardian and said wards, and yet we find that the guardian made a final report on the estate of William Howard Haggard, who became of age before September 24th, 1936, and the county court on October 20th, 1936, entered an order approving the final report of the guardian as to the estate of William Howard Haggard and discharged the guardian and the surety on his official bond.

Before such order was made, Wm. Howard Haggard, on October 15th, 1936, executed the following instrument:

“Now comes Wm. Howard Haggard, and would respectfully show to the court, that he is one of the minors in the above styled and numbered cause, and has heretofore attained the age of twenty-one years and here, now, and hereby waives the issuance of citation, ñotice, service and return thereof as to the filing of the final report and application for discharge of C. M. McFarland, guardian of his estate. And would further show to the court that he is familiar with the contents of said final report and finds that said guardianship of his estate has been handled fairly, efficiently and for the best interests of said estate and of this ward and that he is satisfied in all respects with the handling thereof of the said guardian and that it is perfectly satisfactory with him that said final report be approved and ordered filed by the court, and the said C. M. McFarland discharged as to the Guardianship of him, the said Wm. Howard Haggard.
“Witness my hand this the 15th day of October, A. D. 1936.
“(Signed) William Howard Haggard.
“Subscribed and sworn to before me, a notary public in and for said county and state, on this the 15th day of October, A. D. 1936.
“(Signed) Wayne Sommerville, Notary Public in and for Wichita County, Texas.”

On or about July 17th, 1937, the guardian made his final report as to the estates of the other two minors, to-wit, John Chilson Haggard and Nancy Catherine Haggard, both of whom were then of legal age, and on September 27th, 1937, the county court entered an order approving such final account and discharging the guardian and the surety on his bond.

Prior to the making of such order, the said wards executed, on September 20th, 1937, the following instrument:

“Now comes John Chilson Haggard and Nancy Catherine' Haggard, each of whom have reached their majority, and waive the issuance of citation on the final account of C. M. McFarland, guardian, filed herein; and each of them enters his appearance for this term of court for all. purposes.
“And we, John Chilson Haggard and Nancy Catherine Haggard, do hereby certify that we have received from C. M. McFarland, the guardian of our estates, all of the property, both real and personal, remaining in his hands as guardian and in consideration for the receipt of same, we hereby fully release and discharge the said C. M. McFarland, guardian, and his bondsmen, National Surety Corporation, from all liability thereunder.
“Witness our hands this, the 20th day of September, A. D. 1937.
“(Signed) John Chilson Haggard. Nancy Catherine Haggard.
“The State of Texas. County of Wichita. Before me, the undersigned authority, on this day personally appeared John Chil-son Haggard and Nancy Catherine Haggard, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office, this the 20th day of September, A. D. 1937.
“(Signed) Harvey Harris, Notary Public, Wichita County, Texas.”

These acknowledgments of satisfaction with the acts of the guardian in the’ handling of the estates and the receipt of all properties belonging to the wards, and executed for the express purpose of releasing the guardian from all liability, and authorizing the county court to discharge the guardian and his sureties on the guardian’s bond, preclude the wards from attacking any act of the guardian in the absence of fraud, accident or mutual mistake, unless the acts and orders are void.

Art. 932, R.C.S. provides that any person interested in the estate of a * * * ward may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward. * * * infants * * * shall have two years after the removal of their * * * disabilities within which to apply for such revision and correction(Italics ours).

Art. 4329, R.C.S., which refers to the above quoted statute, provides: “Any person interested may also have any decision, order or judgment of the county court or county judge revised and corrected by writ of certiorari from the district court under the same rules and regulations as are provided in estates of decedents.” (Referring to Art. 932 R.C.S.).

The last quoted statute follows Art. 4318, R.C.S., which provides for an appeal from such decision, order or judgment, and Art. 4328, R.C.S., which provides for a bill of review of such decision, order or judgment.

The certiorari proceedings were instituted by the three wards April 26th, 1938.

No testimony fell from the lips of any one of the wards. We do not know when they attained their respective majorities, and we must consider the certiorari proceedings as having been timely filed.

If the plain wording of the statute referred to, R.C.S. Art. 4329, means what it says, the certiorari proceedings are for the purpose of revision and correction.

We take it that an absolutely void decision, order or judgment cannot be revised and corrected, and we do not find where it is proper to attack an absolutely void decision, order or judgment by cer-tiorari proceedings.

We believe such decision, order or judgment should be directly attacked, and that a collateral attack would be in order.

If the decisions, orders or judgments, here attacked, are not absolutely void, it is evident that these wards have no standing before the courts in that they have, since their respective majorities, ratified all acts of the guardian and released him and his bondsmen from liability for such acts, and these wards do not attempt to show fraud, accident or mutual mistake which induced them to acknowledge the righteousness of the acts of their guardian, the receipt of all properties owned by them from their guardian, and to release the guardian from his -responsibility to them.

The trial court did not find these decisions, orders and judgments void, and we believe his judgment is sound.

These wards have lost nothing by and through the proceedings they attack.

A necessity for the sales was shown. There was no personal property (including money) on hand, and there was a large debt against the property, as well as accrued taxes, and no money with which to pay same and to support and educate the wards.

We believe the record discloses such a substantial compliance with the statutes, R.C.S. arts. 4201 and 4216, Vernon’s Ann. Civ.St. arts. 4201, 4216, that the decisions, orders and judgments attacked are in substantial compliance with these statutes and that they are not void.

We further believe that when these wards invoked the right of revision and correction through certiorari proceedings, the defendants were well within their rights, when by cross action they sought to have the decisions, orders and judgments corrected to show the true facts of the situation.

The trial court did this and we believe his judgment sound.

An examination of the provisions of section 4, Art. 4201 and Art. 4216 discloses that there are no express words authorizing the county court to require, by a new bond, a bond in such sum as is provided for in the event of a sale of a ward’s property, if the original guardian’s bond were not executed for a sum in the amount so required. But this must of necessity be read into the statute; otherwise there could never be a sale of any part of a ward’s estate, however necessary such sale might be, where the original guardian’s bond was not executed in such a sum as is required before a sale could be had, as was the case here.

The Legislature could have had no such intent, and the emergency clauses of the two bills so disclose. They are identical: “The fact that guardians are now authorized to sell real property of their wards under special sales bonds, and that sureties on such bonds are not liable for guardians’ defalcations connected with their general duties, * * * and the further fact that under the present laws the sureties on guardians.’ general bonds are not liable for proceeds received from sales of real estate, create an emergency and an imperative public necessity,” etc. Chapters 79 and 84, General Laws, Regular Session of 44th Texas Legislature, 1935.

We take it that the Legislature intended to require each guardian to make a general bond in the sum required by the amended statute before a sale of the ward’s property could be made.

An examination of the wording of the two bonds required of and executed by the guardian discloses that they are in the words required for general bonds by guardians. They are general bonds. The mere fact that the forepart of each bond contains recitations showing the reasons for the execution of the bonds does not weaken the bonds, but, in our opinion, strengthens them.

The fact that there are two bonds instead of one, in our opinion, does not materially affect the rights of the parties interested, and does not make of them “special sales bondé”.

It is quite evident to us that there was an effort to comply with the provisions of the two statutes, relied upon by appellees, and the matters complained of will not be by us held to be void.

We do not believe that in a case, such as we have here, where no injury is' shown to have been suffered by the wards, and where a bona fide effort has been made to comply with the said statutes, the mere failure of the county court to comply with the provisions of section 4, Art. 4201, R.C.S., Vernon’s Ann.Civ.St. art. 4201, subd. 4, to-wit: “It shall first be found and determined by the Court, by an order duly made and entered to that effect, that the guardian’s general bond is in an amount equal to double the value of the personal property then on hand, including the amount for which said real estate may be sold, plus such additional sum as may, in the opinion of the Court, be necessary to protect the estate of the ward, and that the sureties on such bond are solvent”, by actually “entering” such an order in the records of the guardianship proceedings, same should be held to be absolutely void, and all such proceedings, had and done in good faith by the court and the guardian, be held to be mere nullities, and the guardian’s deed executed by virtue thereof null and void.

The two amended statutes on which appellants rely, Arts. 4201 and 4216, have not been construed by any court since they were spread upon the statute books of the State of Texas, and we do not see fit to cite any case that seems persuasive or analogous.

The above is our construction of these statutes, in this case, and under the facts found here.

Both judgments are affirmed.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    Ex parte PYLE.
    Motion No. 14267; No. 7663.
    Supreme Court of Texas.
    Nov. 29, 1939.
    Currie McCutcheon and Bruce Graham, both of Dallas, for relator.
    M. E. Kramer, of Dallas, for Mrs. Otis Yantis.
   GERMAN, Commissioner.

This is an original habeas corpus proceeding brought in this Court by relator Dr. J. N. Pyle. He seeks to be released from an alleged illegal restraint exercised over him by reason of a writ of commitment issued out of the 101st Judicial District Court of Texas in Dallas County on the 15th day of November, 1939. Pending hearing upon application, the relator has heretofore been released by this Court on proper bond.

Briefly, the essential facts are these: On May 18, 1939, judgment was entered in the 101st Judicial District Court, Dallas County, in Cause No. 51562, styled Mrs. Otis R. Yantis, Guardian, v. Dr. J. N. Pyle, in favor of the plaintiff and against defendant. In that judgment, plaintiff was awarded the title and possession of three certain bonds, which are described therein. In the alternative, if the bonds could not be obtained, judgment in the sum of S3,392 was awarded plaintiff against the defendant.

This judgment became final. On November 7, 1939, writ of possession issued out of said court and was placed in the hands of the Sheriff of Dallas County. Succeeding events are disclosed by order of the court adjudging the commitment, and we quote therefrom as follows:

“Whereas, on the 14th day of November, A. D. 1939, at 11:50 A. M., the Sheriff of the County of Dallas demanded of the said J. N. Pyle the bonds in question, and which was refused to the Sheriff; and
“Whereas a motion was filed herein on the 15th day of November, 1939, by plaintiff that the defendant be required to appear before this court and to show cause, if any, why he should not be held in contempt of this court; and
“Whereas, notice was issued by the clerk instanter for the said Dr. J. N. Pyle, and the said J. N. Pyle was by the Sheriff of Dallas County, Texas, delivered to this court on this date. The Judge of this court demanded of the said J. N. Pyle the bonds as described in said mandate and in said writ of possession, and the said J. N.' Pyle refused to deliver the said bonds to the court, and for such failure and refusal this court finds the said J. N. Pyle in contempt hereof, and assesses his punishment as a fine of One Hundred ($100.00) Dollars, together with costs incurred herein; and further that the said J. N. Pyle be confined in the county jail of Dallas County, Texas, until he delivers the said bonds to this court.
“It is, therefore, ordered and directed that the clerk of this court issue commitment to the Sheriff of Dallas Couny, Texas, to hold the said J. N. Pyle in the Dallas County Jail until he purges himself of contempt of this court, or until ordered released by this court, or by the Chief Justice of the Supreme Court of Texas, or one of the Associate Justices.”

From the foregoing it appears obvious that there was no contempt in the presence of the court. The gist of relator’s offense was disobedience of the writ of possession. The Judge of the Court had no authority to demand of relator the bonds in question. The demand known to the law was that contained in the writ of possession. It has many times been held that courts are without power to summarily punish for contempt not in the presence of the court, including contempt for disobedience of process. Ex Parte Hill, 122 Tex. 80, 52 S.W.2d 367; Ex Parte O’Fiel, 93 Tex.Cr.R. 214, 246 S.W. 664; Cook v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. The proper procedure to be followed in case of disobedience of process is fully set out in the case -of Ex parte Kilgore and Johnson, 3 Tex.App. page 247. We quote from the syllabus as follows:

“In proceeding against a party for contempt of court committed by disobedience of its process, the proper practice is, first, to enter a rule nisi against him, fully setting forth the cause and manner of the alleged contempt; and thereupon to issue scire facias, or similar citation, copying or embodying therein the rule nisi, and requiring him to show cause why the rule should not be made absolute. He is entitled to controvert the allegations against him, and to have an investigation of them upon the merits.
“Whatever mode of procedure be adopted, judgment final for a contempt not committed in view or presence of the court is void if rendered without apprising the party of the matters alleged against him, or allowing him to controvert them, and to have an adjudication upon the merits.”

See, also, Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253, and authorities there cited.

The order adjudging relator in contempt is void and he is.therefore discharged.

Opinion adopted by the Supreme. Court.


text:
    BUSBY v. JONES.
    No. 2276-7407.
    Commission of Appeals of Texas, Section A.
    Nov. 29, 1939.

      Boone, Henderson, Boone & Davis, of Corpus Christi, for plaintiff in error.
    Sidney P. Chandler, of Corpus Christi, for defendant in error.
   GERMAN, Commissioner.

In July, 1923, H. B. Baldwin conveyed to Nowlin Collier and wife a tract of 280 acres of land in Nueces County, Texas. As a part of the consideration Nowlin Collier and wife executed ten vendor’s lien notes, each for the sum of $1,000. Notes Nos. 1 and 2 of this series of notes are the basis of this suit. Note No. 1 was due October 1, 1924, and Note No. 2 was due October 1, 1925. In said conveyance the Colliers also assumed payment of an indebtedness of $12,600 due the San Antonio Joint Stock Land Bank.

October 2, 1923, Baldwin assigned the ten notes mentioned above to Guaranty Title Company, of which he was President. On the same date Nowlin Collier and wife conveyed the 280 acres of land to Wiley Davis, who assumed payment of said ten notes, and also the $12,600 due the San Antonio Joint Stock Land Bank. They further executed one note for $841 payable to Nowlin Collier. On October 1, 1924, a payment of $539.55 was made on said Note No. 1.

September 3, 1925, Wiley Davis, acting through I. N. Conyers as his agent, entered into a contract of sale.of the 280 acres of land with J. J. Busby. The consideration recited in the contract was the sum of $37,800. Of this amount the sum of $13,-952.50 was to be in cash (really to be paid by exchange óf property), and the assumption of certain indebtedness, recited to be as follows: “Sixteen Thousand Dollars now ieing negotiated with the Earson & Taft Loan Company, it being contemplated that said loan will be consummated-by the time for delivery of deeds herein provided for; a balance of Six Thousand Six Hundred Forty-six and 50/100 Dollars, which will be owing to the Baldwin Land. Company, of Corpus Christi, Texas, after payment to them of surplus proceeds of loan above mentioned; Eight Hundred' Forty-one Dollars to Nowlin Collier.”

For some reason the trade,between Davis and Busby was delayed and litigation arose between them. Davis sought an injunction to prevent Busby from taking possession of the land, and in cross action Busby sought specific performance. Oh March 5, 1926,. judgment was entered in favor, of Busby, and'Davis was directed to execute deed conveying the 280 acres of land. In pursuance of said decree,. Davis and wife delivered to Busby a deed of conveyance to said 280 acres of land. We note that said deed was dated-September 9, 1925; just a few days after execution of the original contract of sale, but evidently it was not delivered as a conveyance until long after entry of the judgment of March 5, 1926. The clause in this deed showing assumption of indebtedness as a .part of the consideration is substantially in the same language as is quoted above from the contract of sale.

In the interim between the date of the contract and the date of delivery of the deed from Davis to Busby two things occurred which have an important bearing upon the case:

■First. The’ contemplated loan .by Earson and .Taft Loan Company, referred to in the contract and the de'ed, failed in its consummation, leaving the indebtedness to be assumed unidentified, except by inference and by resort to parol proof.

Second. Notes 1 and 2 of the original series of ten notes had become due, the first as of date October 1, 1924, and the second as of date October 1, 1925. The Guaranty Title Company was insisting upon payment, and threatening to foreclose as to said notes under a deed of trust. In order to prevent said foreclosure and. interference thereby with the sale by Davis to Busby, I. N. Conyers, the agent of Davis, paid the balance of said Note No. 1 and Note No. 2 to Guaranty .Title Company, amounting to $1,465. The question of whether or not Conyers paid said notes for Davis and was afterwards repaid by Davis, or whether he paid said notes on his own behalf and had them assigned to himself, will be discussed later.

Although Conyers paid the amount of said Notes Nos. 1 and 2 to the Guaranty Title Company in October, 1925, he did not attempt to get a written assignment of these notes and the lien .securing same until in June, 1926. On June 23, 1926, Baldwin, as President of said Guaranty Title Company, executed and delivered an assignment of these notes and the lien securing same, but expressly made said lien subordinate to the lien securing the remaining eight notes of the series.

After obtaining .the assignment above mentioned, Conyers on May 24, 1927, obtained from Nowlin Collier and wife what purports to be a renewal note in the sum of $1,630.45, due October 1, 1928. In this instrument it is recited that same is in renewal of the balance due on Notes Nos. 1 and 2 hereinbefore mentioned. This instrument also purported, to renew the vendor’s lien mentioned in said notes. On the same date Conyers also had Nowlin Collier and wife to execute an extension contract, such as is contemplated by Article 5522 of the Revised Statutes of 1925. This instrument, after making reference to Notes Nos. 1 and 2 of the series of October 1, 1923, contained, among other things, the following: “And we, Nowlin Collier and wife, Dollie Collier, have this day executed our new note in the principal sum of One Thousand Six Hundred Thirty Dollars and Forty. Five Cents for the purpose of a renewal of said notes One and Two and to pay accrued interest on the same, and said renewal note, it is understood, is to take the place of said Notes One and Two and said lien on said property to have the same preference as to priority as if it were made at the time that said Notes Nos. One and Two, were made, and subject to the provisions of a transfer made by H. B. Baldwin as President of the Guaranty Title Company to I. N. Conyers on the 23rd day of June, A. D. 1926. No personal liability on Makers.” (Italics ours.)

We may interpolate here that in our opinion it is manifest that the clause, “No personal liability on Makers,” had direct reference to the so-called renewal note.

On August 26, 1927, in some kind of business transaction between himself and Grace E. Jones, Conyers assigned the renewal note, with the purported lien securing same, to Grace E. Jones. This assignment contains the following: “It is expressly agreed and stipulated that this transfer and assignment is made without recourse on me.” Contemporaneously with this assignment Conyers delivered to Grace E. Jones the renewal note and the extension agreement executed by Collier and wife, containing the provisions “No personal liability on the part of Makers.”

The present suit was instituted in the District Court of Nueces County October 17, 1929, by Grace E. Jones as plaintiff, and she will be designated plaintiff here. It was against J. J. Busby as defendant, and he will bear that designation here. The suit was predicated upon said renewal note of May 24, 1927, and the extension agreement, but plaintiff did not seek a personal judgment upon said note. She only sought to establish the amount of said note, interest and attorney’s fees, and to obtain a foreclosure of vendor’s lien on the land as-against Busby. Plaintiff’s petition sets out fully all the facts pertaining to the execution of original Notes Nos. 1 and 2, the purported transfer of same, and the purported renewal, as well as the extension agreement of May 24, 1927. Defendant Busby set up two principal defenses. In the first place, he contended that when Notes Nos. 1 and 2 were paid by Conyers to the Guaranty Title Company, the same were paid by Conyers for account .of Wiley Davis (Busby’s vendor), were marked paid and surrendered to Conyers, who in turn was repaid by Davis, and who surrendered said cancelled notes to Davis; that the attempted renewal of said notes was fraudulent and void, and the transaction of May 24, 1927, between Collier and wife on the one part and Conyers on the other part constituted an attempt to renew and extend the prior lien without renewing and extending the indebtedness, and was therefore of no force and effect. In the second place, he contended that as Notes Nos. 1 and 2 were paid by Davis long before consummation of the sale of the land by Davis to Busby, there was no intention on his part, or on the part of Davis, that the assumption set out in the deed was to include these notes; that therefore, in truth and in fact, there was no lien retained in the conveyance to him securing the so-called renewal indebtedness.

The trial court instructed a verdict in favor of plaintiff, Grace E. Jones, establishing lien upon the land in question to secure the payment of $3,018.58, with interest at the rate of 7 per cent per annum from date of judgment. No personal judgment was entered in favor of plaintiff. There was judgment in favor of defendant Busby over and against Nowlin Collier, I. N. Conyers and Wiley Davis, but upon what theory is not clearly shown. That part of the judgment is not before us. This judgment of the trial court was affirmed by the Court of Civil Appeals. 113 S.W.2d 335:

The foregoing statement, together with what is to be hereinafter stated, clearly shows that there was error in instructing a verdict in favor of plaintiff. We have carefully read the entire record and think the evidence shows beyond doubt that Notes Nos. 1 and 2 were paid by Davis, and the lien to that extent was extinguished, long before the purported assignment by Guaranty Title Company to Conyers; and further shows that these notes were not included in the assumption of indebtedness by Busby. Therefore there was no lien against the land by virtue of the so-called renewal note.

It becomes necessary to first consider the assumption clause in the deed by Davis to Busby. It will be observed that it included, first, the assumption of $16,000 “owing to Earson and Taft Loan Company, secured by deed of trust on the hereinafter described premises.” It next included the assumption of $6,646.50 on the indebtedness due the Guaranty Title Company, which would remain after paying off some of the ten vendor’s lien notes. It must be remembered, however, that the contract and the deed containing this assumption clause were written a year or more before the deed was delivered. In the meantime, the loan mentioned had fallen through, and Notes Nos. 1 and 2 had been paid. This clause, therefore, on its face is meaningless. The real indebtedness assumed and the true amount of same could be shown only by parol evidence. The proof disclosed by the record shows beyond question that the parties not only regarded Notes Nos. 1 and 2 as fully paid, but did not consider same included in the assumption clause of the deed.

H. B. Baldwin testified that when Con-yers paid Notes 1 and 2 to the Guaranty Title Company they were marked paid and delivered to him; that this was their usual custom. He further testified that when Conyers came back some eight months later and requested a transfer of the lien, he objected because he thought it was not proper to give such a transfer; but that he later executed the transfer upon the assurance of Conyers and Davis’ attorney that it was proper. In the suit between Davis and Busby, Conyers testified that these notes were paid by him for Davis, and that Davis'later repaid him the amount. Davis testified by depositions to the effect that Conyers paid these notes as his agent, and that in a settlement between himself and Conyers he fully repaid Conyers the amount paid on the note. He expressly stated as follows: “I. N. Conyers delivered the note he had paid off for.me to me, and at his request I mailed it back to him some four or five months after he had delivered it to me.” We think the true facts with reference to this transaction are put to rest by certain correspondence which took place between Conyers and Davis. On January 7, 1926, Conyers wrote to Davis, who was then at Groesbeck, Texas, and enclosed form of a letter which he requested Davis to rewrite in his own handwriting, “word for word.” This letter was to be addressed to Boone and Savage, Attorneys at Corpus Christi. In pursuance of this request Davis did copy the letter in his own handwriting, signed it, and mailed same to Boone and Savage. Both the copy which was sent by Conyers to Davis and the letter which was written by Davis to Boone and Savage were offered in evidence. The letter thus prepared by Con-yers and signed by Davis, addressed to Boone and Savage, was as follows:

“Your letter of the 2nd, received and in reply to same will state on account of Mr. Busby delaying his papers I was forced to pay $1465.00 to the Baldwin Land Company. Account of this payment by me to Baldwin makes a difference in the exact amount due on the land; therefore the deed that I sent Mr. Busby does not represent the exact amount outstanding indebtedness against the land, the amount now being as follows:
“The San Antonio Joint Stock Land Bank of San Antonio $12,360.00, and interest of $432.10, a total to them of $12,-792.10; to the Baldwin Land Company $8,-000.00, due $1,000.00 per year October 1st 1926 to October 1st 1934; Nowlin Collier note for $841.00 now due, being due January 1st 1926. You can rewrite the deed from me to Busby and send same to me or either of the banks in Groesbeck, together with a Houston or Dallas exchange for $1465.00 and instruct the bank here to pay me same in cash here on delivering to them the deed properly signed by me and wife, this will total the exact amount Mr. Busby was to pay me for my 280 acres of land in Nueces County, less $389.40 of credits on the amount owed Baldwin since the trade was made from the proceeds of the crop. If Mr. Busby can not pay the $1465.00 now, I would accept a vendor’s lien note secured by the land for that amount ($1465.00) bearing eight per cent interest, due and payable at Groesbeck, Texas, October 1st, 1926.”

This letter, thus prepared by Conyers and written by Davis, shows, (a) that Davis and not Conyers paid the balance on Notes Nos. 1 and 2 amounting to $1465; (b) that the indebtedness mentioned in the deed from Davis to Busby, which had been prepared but which had not yet been delivered, did not state the correct amount of outstanding indebtedness; (c) that these two notes, due respectively October 1, 1924, and October 1, 1925, were not to be included in the amount to be assumed by Busby; and (d) that Davis and Conyers intended to undertake to hold Busby for the payment of the $1,465 in some manner aside from the transaction in question.

This last conclusion is strongly supported by the testimony of Davis. After testifying that Conyers delivered the notes to him (Davis), he testified as follows: “Some four or five months after that time, he asked me to send the note or notes to him so that he could make a settlement with Mr. J. J. Busby. My recollection is that there was just one note. .1 mailed this note to Mr. Conyers, as requested. I have since that time endeavored to get this note back from I. N. Conyers. Mr. Con-yers told me that he threw the note that I had sent him in the waste basket and that he supposed it had been burned up. He said he thought it was no good, as he could not get a settlement with Mr. J. J. Busby.”

In light of the foregoing letter, as well as the other evidence in the record, it is clear that the attempt on the part of Conyers to make it appear that he had paid Notes Nos. 1 and 2, and to claim a transfer of the lien in his own favor to secure this indebtedness, was purely an afterthought. Without an actual payment of these notes on his part in his own behalf, and without a bona fide transfer of the vendor’s lien securing same, Conyers could not possibly have any cause of action; and Grace E. Jones, holding under him, under the circumstances of this record, as hereinafter set forth, could have no better right than Conyers. As the notes were paid in October, 1925, the original vendor’s lien to that extent was discharged, and Nowlin Collier and wife were without power to create a new lien, especially when they expressly refused to -renew the debt — as they manifestly did. Nor could Conyers have a lien by subordination.. Davis, having paid the notes, might have perpetuated the lien by having it expressly assumed and carried forward in the conveyance, but this he did not do. However, if it could be said that Davis did have a lien by assumption, this could not help Conyers, who attempted to revive and extend the old vendor’s lien retained in 1923. Plaintiff did not in fact rely upon the assumption, but only upon the original vendor’s lien.

But plaintiff claims protection as a purchaser for value under the Negotiable Instruments Law. Plaintiff expressly pleaded and relied upon the extension agreement of May 24, 1927, which was executed contemporaneously with the renewal note. Both of the original notes would have been barred at the time suit was filed but for such extension. Both of the notes were past due when the renewal note and extension agreement were executed; therefore plaintiff could not be protected as a purchaser for value in the absence of those instruments. Having expressly pleaded and relied upon the extension agreement, plaintiff became bound by each and all of its provisions, including the provision that there was no personal liability on the part of the makers of the renewal note. Manning v. Christian, 124 Tex. 517, 81 S.W.2d 54; Cain v. Bonner, 108 Tex. 399, 194 S. W. 1098, 3 A.L.R. 874. As to plaintiff, under the circumstances, the renewal note and extension agreement must be treated as one instrument. As the note created no personal liability, it was not a negotiable instrument. Wood v. Sparks, Tex. Com. App., 59 S.W.2d 361. It was not even an evidence of debt. Plaintiff clearly recognized this in bringing her suit, as she did not seek personal liability on the note. We are unable to see how the original makers of the notes, after having parted with title to the land, could renew and extend the lien without renewing and extending the indebtedness. Even if the debt had not been paid, when Conyers accepted the renewal note, in lieu of the original notes, with the express provision that the makers were not liable, this necessarily had the effect of extinguishing the old debt. It is evident that the acceptance by plaintiff of the renewal note and the contemporaneous extension agreement, showing that there was no longer personal liability for the debt, put her upon inquiry to ascertain just why the debt no longer existed. She would be charged, as a matter of law, with knowing that if the debt was discharged the lien was also discharged.

The case appears to have been fully developed upon the facts. We therefore reverse the judgments of the Court of Civil Appeals and of the trial court and here render judgment that plaintiff, Grace E. Jones, take nothing in the way of a lien upon the land in question.

As the judgment in favor of defendant Busby over and against Nowlin Collier, I. N. Conyers and Wiley Davis was predicated upon the judgment in favor of plaintiff against defendant Busby, that part of the judgment must necessarily fail, and is hereby reversed and held for naught.

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    PEVETO et al. v. SMITH.
    No. 2273-7400.
    Commission of Appeals of Texas, Section A.
    Nov. 29, 1939.
    Wm. O. Bowers, Jr., of Beaumont, for plaintiffs in error.
    John H. Benckenstein and Jack M. Moore, both of Beaumont, for defendant in error.
   HARVEY, Commissioner.

This suit was brought by the defendant in error, Mrs. Iva Smith, the mother of Olen Smith, to recover damages of the plaintiffs in error, Arias Peveto and H. B. Jackson, for personal injuries sustained by Olen on April 22, 1936, which resulted in his death five days later. It' was alleged by Mrs. Smith, in her petition, that Peveto and Jackson were partners, composing the firm of “Peveto Mercantile Company” and that the injuries sustained by Olen proximately resulted from the negligence of Peveto in operating a motor truck, in furtherance of the business of said firm, while he was under the influence of intoxicating liquor. The case was tried before a jury on special issues, and, upon their answers to same, the trial court rendered judgment in favor of Mrs. Smith against Peveto and Jackson for damages in the sum of $4,500. From said judgment, Peveto and Jackson prosecuted an appeal to the Court of Civil Appeals at Beaumont, and that court affirmed the judgment of the trial court. 113 S.W.2d 216. Peveto and Jackson applied for the writ of error and the application was granted.

. In the plaintiff’s petition the following allegations occur, among various others not presently material:

“That on or about April 22, 1936, at or about the hour of six thirty o’clock P. M., the said Charles Olen Smith, now deceased, left his work at Pennsylvania Shipyards, Inc., in Beaumont, Texas, and started to his home at Vidor in Orange County, Texas, and drove his car, a certain Dodge, 1927 Model Sedan, Texas License No. 647-369, on and over the United States Highway No. 90, which runs from Beaumont to Vidor, Texas, at or about said time was driving his car on and along said public highway and was driving same in a southeasterly direction over the viaduct and was approaching the bridge that crosses the Neches River, when suddenly and without previous notice his engine stopped running and he pulled over to the fartherest edge of said viaduct on his right hand side. At said time and place it was not yet dark but, nevertheless, he turned his lights on and the lights on his said car, both front and rear, were burning. The said Charles Olen Smith got out of his car, raised the hood on the left hand side and began to inquire into the trouble of his engine and was examining the vacuum tank on his said car when suddenly, without any notice or warning of any kind whatsoever, the defendant, Arias Peveto, driving a new Ford V8 Pickup Truck, License No. 122-CM091, loaded with sacks of meal or some such commodity, drove said truck with great force and violence into the rear of said Dodge Sedan, and the said Charles Olen Smith was thrown against said Dodge Sedan and down on said highway and was brutally, severely and fatally injured, and suffered thereby the following injuries, which resulted in his death, towit: Fracture of upper jaw, loosening all the upper teeth, a wound on the roof of his mouth, punctured like, both eyes bruised and almost closed, a fracture of the lower jaw on the right side, which caused quite a deformity, injury to the right thigh near the right groin, and internal injuries of the abdomen, which likely ruptured some of the viscera, particularly the kidney and the intestines.
“In this connection, plaintiff says that defendant, Arias Peveto, at said time and place further negligently drove, operated and managed said Ford V8 Truck in this:
“(2) That defendant, Arias Peveto, at said time and place drove and operated said Ford V8 truck upon a public highway and road in this State while under the influence of intoxicating liquor in violation of Article 802 of the Penal Code of this State, Acts 2nd C.S., 1923, page 56;
⅜ }{i ⅜ ⅜ ⅜ ⅜
“That by reason of such negligent, careless and incompetent and inexperienced management of said Ford V8 Truck by defendant, Arias Peveto, and as a direct and proximate result therefrom, the said Ford V8 Truck struck, knocked, collided, ran into and against the rear of said Dodge Sedan with great violence, knocked, propelled, broke and damaged the same, and threw the said Charles Olen Smith on and about the engine, windshield, and fenders of said Sedan and down and upon said highway whereby he received the injuries hereinbefore mentioned, which caused his death; and in this connection plaintiff further alleges that said collision, the injuries to the said Charles Olen Smith, which later caused his death, all herein fully alleged, each and all, were caused by the negligent acts on the part of defendant, Arias Peveto, herein alleged, and that each and all of said acts of negligence here-inabove stated were direct and proximate causes of said collision, the injuries to the said Charles Olen Smith, which later caused his death.”

Among the numerous special issues submitted to the jury by the trial court were the following:

“Special Issue No. 1.
“Do you find from a preponderance of the evidence that on or about April 22, 1936, defendant Arias Peveto drove a new Ford V8 truck into Charles Olen Smith’s Dodge Sedan?
“Answer ‘he did’ or ‘he did not’ as you find the facts to be.”
The jury answered: “He did.”
“Special Issue No. 2.
“Do you find from a preponderance of the evidence that Charles Olen Smith received injuries from such collision, if you have found that defendant, Arias Peveto, did drive said Ford V8 truck into Charles Olen Smith’s Dodge Sedan?
“Answer that ‘he did’ or ‘he did not’, as you find the facts to be.”
The jury answered: “He did.”
“Special Issue No. 3.
“Do you find from a preponderance of the evidence that Charles Olen Smith died as a result of such injuries, if you have found that he received injuries in such collision, if any?
“Answer ‘he did’ or ‘he did not’, as you find the facts to be.”
The jury answered: “He did.”
“Special Issue No. 4.
“Do you find from a preponderance of the evidence that at the time and place of the collision, if any, that defendant, Arias Peveto, drove said Ford V8 truck while under the influence of intoxicating liquor ?
“Answer ‘he did’ or ‘he did not’, as you find the facts to be.”
The jury answered: “He did.”
“Special Issue No. 5.
“Do you find from a preponderance of the evidence that defendant, Arlas Peveto’s act of driving said truck at said time and place while under the influence of intoxicating liquor, if you have so found, was negligence as that term has been defined for you?
“Answer ‘yes’ or ‘no’ as you find_ the facts to be.”
The jury answered: “Yes.”
“Special Issue No. 6.
“Do you find that such negligence, if you have found that it was negligence, was a proximate cause of the injuries received by Chai'les Olen Smith, if any?
“Answer ‘yes’ or ‘no’ as you find the facts to be.”
The jury answered “Yes.”
“Special Issue No. 7.
“Do you find from a preponderance of the evidence that the injuries received by Charles Olen Smith on the occasion in question were not the result of an unavoidable accident as that term is herein defined ?
“You are instructed to answer ‘it was an unavoidable accident’ or ‘it was not an unavoidable accident’ as you finc( the facts to be.”

The jury answered: “It was not an unavoidable accident.”

The first ground of complaint which we shall consider is to the effect that the evidence is insufficient to raise the fact issue submitted to the jury in Special Issue No. 6. That is to say, that there is no evidence to show that the negligence of Peveto, in driving- his truck at said time and place while under the influence of intoxicating liquor, as found by the jury, was the proximate cause of the injuries received by Olen Smith. The testimony bearing on this question is substantially as follows:

The public road from the City of Beaumont to the small town of Vidor runs in a southeasterly direction to Vidor and on farther to the City of Orange. In the eastern edge of Beaumont the road crosses the Neches river over a long viaduct. Louisiana street, in Beaumont, runs in the same direction as said public road and terminates at the corporate boundary of the city which crosses the viaduct some 200 or 300 feet from the western end thereof. The way across the viaduct is about 16 or 18 feet wide. At the trial of the case, it was stipulated by the parties that Everett Smith, who was absent, would, if present, testify to the following facts, and such stipulation was introduced in testimony, towit: In the evening of April 22, 1936, Everett and Olen left Beaumont, in Olen’s Dodge Sedan, to go to Vidor. As they were driving along on the viaduct, just outside the city limits of Beaumont, the car ran out of gasoline and the car stopped on the right-hand side of the viaduct. The vacuum tank of the car was found to be dry. They left the car parked on the viaduct and went back to the Shell Filling Station, which was situated at the western end of the viaduct. Olen stopped at the filling station and Everett went on into Beaumont and did not see Olen again until the next morning at the hospital.

J. W. Long testified, in substance: Along about 6 or 7 o’clock in the evening of April 22, 1936, Long drove across the viaduct, in his car, on his way to Vidor. He passed Olen’s car which was parked on the right-hand side of the viaduct. As he was approaching the car, he saw it for a considerable distante and noticed that the tail light was burning. There was plenty of room for him to drive past the car on the left side thereof. As he passed it he saw Olen standing on the ground, beside the engine, with the hood raised. Olen appeared to be having some trouble with the vacuum tank of the car. He was standing by the vacuum tank “as though he were filling it.”

Martin Richardson testified, in substance: He, Richardson, went from Beaumont, in his car, to Vidor. On his way to Vidor he crossed over the viaduct late in the evening — about dusk — of April 22, 1936. He saw Olen Smith’s car parked “against the railing on the right-hand side of the viaduct.” A short time later, as he was returning from Vidor, he saw “somebody-hit the car (Olen’s) and there wasn’t nobody there. The car was over on the same side of the road, knocked up on the side there, the left-hand side coming back.” He, Richardson, did not stop.

Ralph Wilson testified, in substance: He, Wilson, drove across the viaduct, in his car, late in the evening of April 22, 1936, somewhere around 6 o’clock. He was on his way to the Boy Scout Camp which was located some distance out toward Vidor. As he got up on the viaduct he saw a car a considerable distance ahead. The car was parked on the right-hand side of the viaduct close up against the right-hand railing. It was headed toward Vidor. As he was approaching where the car was parked he met two men, who were walking toward the western end of the viaduct. He passed the parked car and drove on to the Boy Scout Camp. Sometime later he recrossed the viaduct on his way back to Beaumont. As he was driving on the viaduct, he saw, a considerable distance ahead of him, a car parked on the wrong side of the viaduct — that is to say, on the right-hand side as Wilson was then traveling. The parked car was facing toward the witness and its headlights were burning. The parked car was the same one which he had seen parked on the other side as he was going out. He drove on up to and around the parked car. As he was driving around the car, he saw a man sitting crouched over on the floor of the viaduct about 12 or 15 feet behind the right hind wheel of the parked car. He drove a short distance, parked his car along the right side of the viaduct and went back to the man whom he had seen sitting on the floor of the viaduct. He found that the man was badly injured and was bleeding profusely. The man seemed to be conscious, as he said “Oh Lord, have mercy on me.” About that time two other men appeared on the scene, and all three concluded that the thing to do was to take the injured man (who Wilson afterwards learned was Olen Smith) to an undertaking parlor whence he could be taken by an ambulance to the hospital. Wilson got into his own car, and while backing around to where Olen was, he “ran over a tin can, or dust pan or a piece of tin of some sort.” With the aid of the other two men, Wilson lifted Olen into his, Wilson’s, car, and Wilson drove to the undertaking parlor, where Olen was transferred to an ambulance which took him to the hospital. On leaving the undertaking parlor, Wilson drove to another place near by to have the blood washed out of his car. At this last mentioned place he looked at the clock and saw that it was 7:30 o’clock.

A. M. Patureau, Sr., a policeman, testified, in substance: He, Patureau, was telephoned from headquarters to go out to the viaduct and remove a car that was parked there. He got there around about 9 o’clock that night. He found the car parked on the left-hand side of the viaduct, at an angle of about 20 or 25 degrees. The front end of the car.was against the left-hand railing and the headlights were burning. The parked car was badly damaged at the rear end. Since the mission of the witness was to remove the car from the viaduct he made no investigation of the surrounding circumstances. He noticed, however, a large pool of blood on the floor of the viaduct over on the other side —near the middle line of the viaduct.

Mrs. Smith, Olen’s mother, testified that the morning after the accident, Peveto came to the hospital and told her that he was the man that hit Olen. She took him into the room where Olen was in bed.

Fay Lee Smith and George Smith were in the room with Olen when Peveto came in. They testified, in substance, that their mother introduced Peveto to Olen and said “This is the man that hit you.” A conversation ensued between Peveto and Olen. In the conversation Olen said to Peveto: “Why did you hit me, my tail light was burning?” Peveto replied: “I think it was as much your fault as it, was mine.” To this Olen replied: “I don’t see how it was, because I had a big tail light and all my lights on the car were burning.” To this Peveto made no reply, but left the room at once.

A number of photographs of Olen’s car, taken a few days after the accident, were put in evidence. It was shown that the various damaged places on the car, which were revealed by the photographs, occurred in the collision in question. The photographs disclosed the following damage to the car: The center part of the rear bumper was broken and bent in against the spare tire which was bolted on the rear end of the body of the car; the rear right-hand fender was badly bent; a large hole was smashed through the windshield, on the left-hand side, immediately above the vacuum tank. In one of the -photographs a man is shown standing on the ground, with the hood of the car raised. His position is such as a person would ordinarily occupy in inspecting or filling the vacuum tank. In_ this position, the photograph shows the right side of his head to be immediately in front of and but a few inches from the large hole smashed through the windshield. It further appears in testimony that the injuries received by Olen, in the catastrophe, included these: The right side of his head was badly bruised and lacerated; his right jaw was broken and his teeth knocked out; his right thigh, near the upper end, was bruised.

It appears in testimony that on Louisiana street, a short distance from the western end of the viaduct, there were two beer parlors and a liquor store and that Peveto spent most of the afternoon of April 22, 1936, in this vicinity. His truck was parked in front of one of these beer parlors. He was seen by one witness, the waitress in this beer parlor, to drink seven or eight bottles of beer. He then left this beer parlor, was gone about a half hour and upon his return drank about the same number of bottles of beer as he did while there the first time. Another witness testified that during that same afternoon, along about 4 o’clock, she saw Peveto emerging from the other beer parlor, and that he was slightly intoxicated at that time. Late in the evening Peveto went to his truck, got in it, and drove out Louisiana street in the direction of the viaduct. A witness who saw him get in the truck testified that Peve-to was intoxicated at that time. Peveto was present at the trial of the case, but did not testify; nor did the plaintiffs in error call any other witness'to the witness stand. We have stated the substance of all the testimony which has any bearing on the question of Peveto’s negligence as well as that which bears on the question of proximate cause. A careful study of the circumstances in evidence leads'inevitablyvto the conclusion that they not only raise the fact issue of Peveto’s negligence in driving his truck along on the viaduct while he was under the influence of intoxicating liquor but also the fact issue as to such negligence being the proximate cause of Olen’s injuries. It was the province of the jury to draw any and all inferences reasonably capable of being drawn from the circumstances shown in evidence. For instance, it was perfectly reasonable to infer that but for the fact that Peveto was under the influence of intoxicating liquor he would not have driven his truck against the back end of Olen’s car as he did. It was reasonable for the jury to draw from circumstances in evidence the inference that at the time of the impact Olen was bending over the vacuum tank of his car and by the impact the windshield - was jammed against his head and broken as it was. Along with other circumstances in evidence, the very fact that Peveto, next morning at the hospital, when taxed by Olen with causing his injuries, failed to explain in what way Olen was at fault, as Peveto then claimed, would furnish a reasonable basis for an inference' that Peveto by his own act solely, in driving his truck against the back end of Olen’s car, brought about the injuries to Olen. In a word, we conclude that the facts and circumstances in evidence, when considered together, amply justify the finding of the jury that Peveto was guilty of negligence in driving his truck along the public highway while under the influence of intoxicating liquor and that such negligence was the proximate cause of the collision and resulting injuries to Olen. The jury, in answer to other special issues, acquitted Olen of contributory negligence.

It is further contended that there is no evidence to show that Olen Smith was injured at the time -and place alleged in the petition. The argument made in •support of the contention is to the effect that the testimony of Everett Smith shows that, when Olen’s car stopped on the viaduct, Olen examined the vacuum tank and found it to be dry, and thereupon he and Everett went as far as the Shell Filling Station at the western end of the viaduct, where Olen stopped and Everett went on into Beaumont; and further, that the testimony of Martin Richardson shows that he, Richardson, saw somebody hit Olen’s car and that “nobody was there.” It is enough to say in disposing of this, contention that other circumstances in evidence, including those disclosed by the testimony of J. W. Long and Ralph Wilson, are sufficient foundation for the jury to infer, as they presumably did, that at the time of the collision, Olen was standing beside his car filling the vacuum tank. The contention of the .plaintiffs in error in this respect is overruled.

Thus far we have considered the case as it relates to both Peveto and Jackson. In the application, however, a complaint is made by Jackson alone. The facts which this complaint involves are substantially as follows :

The transcript contains a bill of exception, duly approved by the trial judge, which reads as follows:

“Be it remembered that upon the trial of the above numbered and entitled cause, at the conclusion of the evidence, and after overruling defendants’ demurrer to the plaintiff’s evidence and defendants’ motion for an instructed verdict, and before he read his written charge to the jury, the trial judge, in the presence and hearing of the jury announced and directed judgment in favor of defendant H. B. Jackson. Such erroneous ruling and order was by defendants’ counsel called to the court’s attention, before the judge read his charge to the jury but without correcting such error and advising the jury, the judge submitted and read to the jury his charge and special issues as between plaintiff and only defendant Arias Peveto, and, upon answers thereto favorable to plaintiff, entered judgment against both the defendants, II. B. Jackson and Arias Peveto as partners in business.
“To which action of the court the defendants in open court except because the jury was prevented from considering the rights of defendant Jackson in their deliberations and answers to such special issues.”

It appears from the foregoing bill of exception that before the case was submitted to the jury, the trial court rendered judgment in favor of Jackson, and that thereafter the trial proceeded before the jury solely as between the plaintiff and Peveto. It further appears that the judgment which the trial court finally entered in the case — being the judgment from which this appeal is prosecuted — is based on the fact findings made by the jury in response to special issues submitted to them as between the plaintiff and Peveto alone. The said final judgment appears in the transcript and same appears to be against both Peveto and Jackson, individually, without reference to the alleged partnership relation. In this situation, nothing to the contrary appearing, the only reasonable conclusion we can draw is that no fact question raised by the evidence, concerning Jackson’s liability, was submitted to the jury for determination, and that the fact findings made by the jury involve the plaintiff and Peveto alone. Obviously, in this situation, the fact findings made by the jury have no more binding force on Jackson than if he were never a party to the suit. The judgment which the trial court finally entered in the case was effectual as against Peveto, individually, but wholly ineffectual as against Jackson in any respect. From whatever angle the situation is viewed, it appears that the judgment which was entered against Jackson has no support from the jury verdict in the case, and is, therefore, erroneous. See Frank v. Tatum, 87 Tex. 204, 25 S.W. 409; Glasscock v. Price, 92 Tex. 271, 47 S.W. 965.

In so far as the judgment of the trial court is against Jackson, the same, together with the judgment of affirmance rendered by the Court of Civil Appeals in this respect, are both reversed and judgment is here rendered for Jackson. In all other respects the judgment of the trial court and that of the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge.

text:
    KELLY v. STATE.
    No. 20555.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.

      Kennedy & Granberry, of Crockett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky and gin in a dry area for the purpose of sale; the punishment, a fine of $500.

Horace Coon, an inspector of the Liquor Control Board, testified that on the first of February, 1939, he and other officers searched the filling station of appellant and found therein two pints of whisky on a cot under some quilts, two pints of gin in a trap built in the wall under the window in the mens’ rest room, one pint of whisky in a trap in the wall over the front door, and one pint of whisky in the rear of the building. The witness testified, further, that when he and the officers drove to the station appellant and another man were present; that the witness asked appellant if he might search the place; that appellant replied in the affirmative. It was further in evidence that during the progress of the search several persons came to the filling station.

Lee Thomas, a witness for the state, testified that he rented the filling station to appellant on the 19th of January, 1939, and that appellant turned the property back to him on the fourth of February. He testified, however, that he did not know whether appellant had assigned the lease to another person. It was the version of the witness that the contract with appellant was in writing and that he (witness) had destroyed it after the filling station had been turned back to him.

Appellant did not testify, but introduced the witness Travis Weisinger, who testified that he (Weisinger) had formerly operated the filling station in question. The witness testified further that when he surrendered the place he left a pint of whisky in the loft over the office.

It is appellant’s contention that the court should have submitted his requested instruction covering the law of circumstantial evidence. We are unable to reach the conclusion that the charge was called for. The testimony was direct to the point that appellant was in possession of the premises where the whisky and gin were found. He possessed more than a quart of such liquor and the court submitted an instruction on the prima facie feature of the case. Hence a charge on circumstantial evidence was not required. Cothran v. State, 136 Tex. Cr.R. 75, 123 S.W.2d 667.

It is shown in bill of exception No. 7 that the county attorney in argument pointed his finger at appellant and referred to him as a guilty bootlegger, and, further, accused appellant of producing the witness Weisinger in an effort to fabricate a defense. If it should be conceded that the argument was not proper, we are not impressed with the view that under the facts reflected by the record it should work a reversal of the judgment. As has already been observed, the proof on the part of the state showed that a quantity of whisky and gin was hidden in various parts of the filling station. Again, it was in evidence that during the progress of the search several people came to the station. The county attorney was drawing the inference that appellant was a bootlegger from the testimony adduced upon the trial. vThe evidence appears to be amply sufficient to support the judgment of conviction. Viewing the argument in the light of the record, we are constrained to overrule appellant’s contention that the bill of exception presents reversible error.

The judgment is affirmed.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    COTHRAN v. STATE.
    No. 20593.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for the possession of liquor for the purpose of sale in a dry area; penalty assessed at a fine of $100.

The complaint and information appear regular. The record is before us without statement of facts or bills of exception. No error has been presented which would authorize a reversal of the conviction.

The judgment of the trial court is affirmed.


text:
    RHOADES v. STATE.
    No. 20597.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    D. F. Sanders and John A. Veillon, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for unlawfully transporting untaxed liquor; penalty assessed at confinement in the county jail for a period of fifteen days.

The State’s witness, A. E. Netterville, an Inspector for the Alcohol Tax Unit Bureau of the United States Treasury Department, testified that he apprehended the appellant after receiving information that he was hauling whisky and found in his car two one-half gallon glass bottles and one pint bottle of non-tax paid whisky. This was turned over to a representative of the Texas Liquor Control Board who introduced it in evidence upon the trial of the case.

Another negro by the name of Will Smith was riding in the car with the appellant and claimed the whisky as his own. Smith was convicted and fined $150, and, at the time of the appellant’s trial, was in the county jail, .serving time in default of payment of the fine.

Appellant denied ownership of the whis-ky or any connection with its transportation or possession. He said that Smith approached him with the whisky in a sack and asked for a ride, at the same time making the representation that the sack contained groceries. Appellant denied knowledge of any fact which would reasonably lead him to discover otherwise.

There was considerable controversy on the trial about the ownership of the car, all of which we consider immaterial to the proper disposition of the case.

Appellant presented a defense which he was entitled to have submitted to the jury upon his request in an affirmative manner. This he did by a proper requested charge. The court refused to give this instruction, to which the appellant duly excepted, as noted by the judge. We think this was error requiring that the case be reversed. See Fawcett v. State, Tex.Cr.App., 127 S.W.2d 905, and cases there cited.

The record contains no bill of exception bringing this issue before this, court as is considered to be the better practice. Nevertheless, the trial judge noted the exception over his signature and it is in the record. This has been held sufficient to bring the matter before this court for consideration and review even in the absence of a bill of exception. See Serrata v. State, 127 Tex.Cr.R. 332, 76 S.W. 2d 765, and cases cited.

For the error of the trial court in refusing to grant the special requested charge, the judgment is reversed and the cause remanded.


author: HAWKINS, Presiding Judge.

text:
    GOODMAN v. STATE.
    No. 20586.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Joseph A. Chandler, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for misdemeanor embezzlement, punishment being a fine of $10 and fifteen days in jail.

The record is here without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    PHILLIPS v. STATE.
    No. 20601.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Gray & Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Drunkenness in a public place is the offense; penalty assessed at a fine of $5.

The appellant was convicted in the Corporation Court of the City of Tyler, Texas, upon a complaint charging drunkenness in a public place. From a judgment of conviction in that court, he appealed to the County Court of Smith County, where he was again convicted and his punishment assessed at a fine of $5 and costs by the verdict of the jury. He now seeks an appeal to this court from the judgment last mentioned.

Under the terms of Art. 53, C.C.P., the Court of Criminal Appeals is without jurisdiction in prosecutions originating in an inferior court and appealed to the county court where the fine assessed does not exceed $100. That is to say, on an appeal from a Corporation Court to the County Court, the judgment of the latter court is final where the fine assessed does not exceed $100, and consequently, no appeal can be taken therefrom. See Annotations under Art. 53, Vernon’s Ann.Tex.C.C.P., Vol. 1, pp. 95, 96; also Williams v. State, 127 Tex.Cr.R. 300, 76 S.W.2d 137; Cervantes v. State, 132 Tex.Cr.R. 5, 101 S.W. 2d 1019.

For the reasons stated above, the appeal is dismissed.


text:
    CHEATAM v. STATE.
    No. 20592.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    R. B. Gambill, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for aggravated assault; penalty assessed at a fine of $50 and confinement in the county jail for one year.

The statement of facts accompanying the record fails to bear the approval of the judge who tried the case. The rule is well settled that the statement of facts must be approved by the trial judge in order to be considered by the appellate court. See Art. 760, subd. 2, C.C.P., Vernon’s Ann. C.C.P. art. 760, subd. 2, arts. 2239 and 2243, R.S., 1925; Tex.Jur. Vol. 4, p. 419, sec. 287; also Gunn v. State, 134 Tex.Cr. R. 224, 114 S.W.2d 903, and cases cited.

No complaints of the rulings of the trial court have been presented by bills of exception.

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


text:
    POTEET v. STATE.
    No. 20519.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.

      Jno. T. Spann, of Crystal City, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for hunting deer at night with the use of an artificial light, punishment assessed being a fine of fifty dollars.

The cause in which appellant was convicted bore the trial court number of 726, and was based upon a complaint and information which were filed in the County Court of Zavala County on the 2d day of February, 1939. They charged that appellant on or about November 1, 1938 hunted deer by the aid of a “headlight and artificial light.”

When this cause was called for trial appellant interposed a plea of former acquittal in which he averred that in cause No. 724 in the trial court he had been acquitted of the offense for which he was again sought to be placed on trial. Cause No. 724 was based on a complaint and information filed on November 2d, 1938, alleging that appellant hunted deer by the aid of a “headlight and artificial light” on November 1, 1938. Appellant was tried in cause 724 and acquitted on February 2, 1939, the same day upon which the complaint and information in cause No. 726 was filed. While the record is silent on the point it may reasonably be assumed that the prosecution in No. 726 was begun after acquittal in cause No. 724.-

The testimony on the present trial developed that Mr. Miller had received information which caused him and two other officers to secrete themselves at night on the “Hardy” ranch property in a pasture on the south side of the public road in an effort to apprehend deer hunters who might be violating the game laws. About one o’clock A. M. on November 1, 1938, a car was' seen travelling along the road. It was equipped with a spotlight the rays from which were being “played” into the pasture on the north side of the road. When the car reached a point near where the officers were in hiding it stopped. Appellant got out of the car with a flashlight in one hand and a rifle in the other. He crawled under the wire fence and entered the pasture on the south side of the road. When he reached a point near the officers he was commanded to stop, but fled and escaped. The officers went to the car in whicn they found appellant’s wife. The car was equipped with a spotlight attached to the “dashboard.”

Appellant excepted to the failure of the court to direct a verdict of not guilty predicated on his plea of “former acquittal.” In said plea appellant averred “that the offense for which he is now being prosecuted in this case is one and the same transaction, accusation and offense as that for which he has theretofore been legally acquitted.” Of course, such averment does not prove itself. The only evidence offered-by appellant on the point was the complaint and information, and the judgment of acquittal in cause No. 724. In behalf of the State on the issue Mr. Miller testified as follows: “I filed the complaint in this case, and the complaint in cause No. 724; they are not for the same offense; this one is for hunting with a head light and the other case is for hunting with a light attached to the automobile ; when I saw him coming he was hunting from the car with a light attached to the car; that’s what that case was for; this case is for hunting with a head light, in the pasture with a flashlight; I filed both complaints, the one he was acquitted for reads like this one, they read alike, but they are for different offenses.” The court instructed the jury if they found that the offense charged in cause No. 724 was the same as that charged in the case on trial to acquit appellant, and also the court at appellant’s request gave a special charge on the same subject in language chosen by appellant.

The same offense .means the identical criminal act, not the same offense by name. See 12 Tex.Jur., Sec. 237, p. 554, and cases there cited. “One pleading former acquittal or conviction in this state may allege and prove the facts which show the identity of the offense although this may not appear upon the face of the indictment nor from the recitals in the judgment.” Compton v. State, 105 Tex. Cr.R. 516, 289 S.W. 54, 57. Likewise, an offense which might appear to be the same upon the face of the State’s pleading and the judgment might be an entirely different criminal act. To illustrate, there might be two cases against A for assault to murder on B with a pistol on the same alleged date, and a judgment of conviction or acquittal occur in one case. On the face of the pleadings and judgment a plea of former conviction or acquittal would appear good, and yet A may have tried to kill B on two occasions the same day.

In the present case we have no information as to the manner of trial in cause No. 724. The hunting by use of a spotlight on the car in the pastures on the north side of the road while the car was travelling along the road could have been developed in the trial of No. 724 without even referring to the transaction in the pasture on the south side of the road after appellant got out of the car, or if both transactions had been developed in the trial of No. 724, an election might have restricted the State to the hunting on the north side of the road with the spotlight on the car. Thompson v. State, 99 Tex. Cr.R. 470, 269 S.W. 1048; Mitchell v. State, 48 Tex.Cr.R. 533, 89 S.W. 645. Where an accused pleads former conviction or acquittal the burden is on him to prove it, and while the plea in the present case is good, we think the evidence fails to sustain it. The evidence may have been so developed in the trial of No. 724, and that cause so submitted that appellant’s plea of former acquittal might have been supported under proper proof.

The prosecution was under Art. 902 P. C.1925. We quote said article in part, emphasizing thfe words pertinent to our subsequent observations. “It shall be unlawful for any person at any time of the year to hunt deer * * * by the aid of what is commonly known as a headlight or hunting-lamp, or by artificial light attached to an automobile, or by the means of any form of artificial light. * * * The possession of a headlight, or any other hunting light used on or about the head when hunting at night, between sunset and one-half hour before sunrise, by any person hunting in a community where deer are known to range, shall be prima facie evidence that the person found in possession of said headlight, or other hunting light, is violating the provisions of this article.”

In submitting the case to the jury the trial judge gave in charge the prima facie clause of said article. Objection was interposed on the ground that it was not applicable under the facts of the present case. Appellant also complained because the court did not charge on circumstantial evidence, and presented one in proper form with request that it be given. If ’ the court was right in giving the instruction on the prima facie feature of the statute, it obviated the necessity of charging on circumstantial evidence, otherwise the omission to charge on circumstantial evidence would be error. It will be noted that in the first part of Art. 902, P.C. it refers especially to hunting with' lights commonly known as a “headlight or hunting-lamp” by name, and then includes “any other form of artificial light,” but restricts the prima facie feature of the statute to a “headlight,” or any other “hunting light used on or about the head" It is unquestionably true that when appellant went into the pasture on the south side of the road he was not using what was commonly known as a “headlight” or “hunting lamp.” He had only an artificial light known as a “flashlight.” Pie had it in his hand. It is true one of the State’s witnesses testified that such a light could be used on the head by placing it in the hat crease, but there is no evidence that appellant was so using it on or about the head, and it is only when so used that the statute in question would make the possession of such a light as appellant then had prima facie evidence that he was violating the hunting statute in question. The ordinary flashlight is an article of such common use that it may well be doubted that the Legislature would undertake to make the possession of one ‘prima facie evidence against its owner unless he was using it on or about the head as the commonly known headlights or hunting lamps are used.

It follows from what we have said that we think the trial judge fell into error in giving the prima facie charge complained of, and that upon another trial it should be omitted, and under the evidence as here found an instruction on circumstantial evidence would be appropriate.

The judgment is reversed and the cause remanded.


author: GRAVES, Judge.

text:
    HERNANDEZ v. STATE.
    No. 20608.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    Anthony Morales, Jr., and Jones & Jones, all of Del Rio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant, a Mexican boy, was indicted on April 10, 1939 by the grand jury of Crockett County for forgery. On the same day he and two other boy companions were brought into court, and waived their statutory two days time to prepare for trial. See Art. 514, et. seq., C.C.P. At such time the appellant also waived a jury as provided for by Art. 10a, Vernon’s Annotated Code of Criminal Procedure. Appellant was also by the court apprised of his right to file an application for a suspended sentence, which application was prepared for him by the State’s attorney and filed by the district clerk.

The district attorney, after proving up the State’s case, also showed by proof that the appellant had never been convicted of a felony in this or any other state. The record shows that the court convicted this appellant on his plea of guilty and sentenced him to serve two years in the State penitentiary, all on the same day of the return of the indictment. It is shown that appellant had no attorney representing him at this trial, and none to present his plea for a suspended sentence.

Appellant files a very comprehensive brief complaining of many alleged errors committed in the trial in the court below, some of which will doubtless not occur in another trial herein.

Complaint is made because of the fact that appellant was allowed to waive a jury and enter his plea of guilty before the court in the absence of an attorney representing him. The statute, now Art. 10a, Vernon’s C.C.P., contains the following proviso: “Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.”

This provision of the statute seems to be mandatory, and before a person charged with a felony can waive this valuable right of a trial by jury, provided he has no attorney representing him, we hold it is the duty oí the trial court to appoint one for him. Such an appointment should have been made by the trial court.

We also note that the appellant made and filed an application for a suspended sentence, such application being prepared by and presented for him by the district attorney. Such a proceeding was not in consonance with the statute relative thereto. Art. 776, C.C.P., reads in part as follows: “* * * When the defendant has no counsel, the court shall inform the defendant of his right to make such application, and the court shall appoint counsel to prepare and present same if desired by defendant.”

We have heretofore held that it was not a sufficient compliance with the statute for the district attorney to prepare and present such an application. See Moses v. State, 94 Tex.Cr.R. 353, 251 S.W. 219; Noble v. State, 112 Tex.Cr.R. 541, 17 S.W. 2d 1063; Haynes v. State, 108 Tex.Cr.R. 62, 299 S.W. 234; Rivers v. State, 112 Tex.Cr.R. 650, 18 S.W.2d 171; Alverson v. State, 106 Tex.Cr.R. 513, 293 S.W. 1107.

We thus find appellant without counsel, having waived the statutory right of two days after indictment in order to prepare his case for trial, the right of a trial by jury, the right to have an attorney prepare and present his application for a suspended sentence, and his right of two days in which to file a motion for a new trial, all without the advice and assistance of an attorney. We find all this happening on the same day he was indicted, tried and sentenced.

In view of the statute and decisions thereunder we are of the opinion that such proceedings constituted error, and this judgment is reversed and the cause remanded.