author: LATTIMORE, J.

text:
    MORGAN v. STATE.
    (No. 12147.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for 'the State.
   LATTIMORE, J.

Conviction for aggravated assault; punishment, six months in the county jail.

Appellant was indicted and tried for assault to murder one Gibbons, and convicted of aggravated assault. Gibbons fired three shots at appellant with a pistol. He was inside his restaurant at the time. His pistol then refused to work, and appellant fired three times with his pistol at Gibbons. There had been trouble between the two a month before, at which time Gibbons had a pistol, cursed appellant, and told him to stay away from his restaurant. On this trial Gibbons swore that he fired at appellant because the' latter walked up and down in front of his restaurant, cursing' him and calling him a long-nosed s-n of a b-•, and inviting him to come out; said he wished Gibbons would raise his hands or make a move; and finally -when Gibbons got some customers out of the restaurant, appellant made a “bull” run for the door and jerked it open, with his pistol fairly out, at which time Gibbons opened fire on him. Appellant swore that on the occasion in question he was with his little four year old boy, and when they got near Gibbons’ restaurant the boy made a run to go in to get some soda pop, and that he made a dive to catch the boy, and Gibbons from within said, “Stay out of here, you s-n of a b-,” whereupon appellant said, “You Roman nosed s-n of a b-, I am not coming in there.” 1-Ie said Gibbons at once began shooting; that he did not have his pistol in his hand and made no hostile demonstration and fired no shot until Gibbons first fired at him, and that he did not know whether Gibbons was shooting at him or his boy.

In this condition of the record the court charged the jury on provoking the difficulty, and gave them the following charge;

“But you are further instructed that a party cannot avail himself of a necessity which he has knowingly brought upon himself. Whenever a party by his own wrongful act provokes a contest with the apparent intention of killing another or of doing him serious bodily injury, or when a party goes with a deadly weapon to where another is, for the purpose of provoking a difficulty, and thereby causes .the other reasonably to believe that he is in immediate danger of loss of life or serious bodily injury, and so believing to attack him, then you are instructed that the party so provoking the said difficulty cannot avail himself of the plea of self-defense. But if a party, without having provoked the difficulty and caused an attack upon himself as above set forth is, by the assault of another, or the acts of another, placed in fear of loss of life or of serious bodily injury, of himself or as in this case his child, then you are instructed that he can avail himself of such plea’ and the law of self-defense as defined above is fully applicable.”

This charge is not correct, but this will not be discussed, inasmuch as no complaint was made of the form of the charge. See Woodward v. State, 54 Tex. Cr. 80, 111 S. W. 941.

This charge was excepted to as being an abstract statement of what was believed to be the law by the trial court, who made no effort to apply same to any facts; further, that there was no testimony raising the issue of provoking the difficulty; that same was on the weight of testimony as indicating to the jury that the court thought appellant had provoked the difficulty.

As we view this case, it presented the question of who began the difficulty, and the issue of provoking such difficulty was not in the case. If Gibbons’ testimony bé accepted, appellant was making an attack .on him which, from its manner and the weapon displayed, would plainly have justified Gibbons in the use of all means necessary to defend his person and repel the attack thus begun. If appellant’s testimony be looked to, he was making no attack, displaying no' weapon, and did nothing before Gibbons shot save to try to catch his son, and to reply to Gibbons’ use toward him of a vile epithet and the telling of him to stay out of Gibbons’ place by calling Gibbons the same vile name and saying that he was not coming in there. On the proposition that under these facts there was no issue of provoking a difficulty, see Pollard v. State, 45 Tex. Cr. R. 121, 73 S. W. 953; Crowson v. State, 51 Tex. Cr. R. 14, 100 S. W. 782; Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161; Carlile v. State, 90 Tex. Cr. R. 1, 232 S. W. 822; Cook v. State, 43 Tex. Cr. R. 188, 63 S. W. 872, 96 Am. St. Rep. 854, which hold that when the question is who began the difficulty, it is error to charge ,on provoking such difficulty.

On the proposition that it is error to charge on provoking a difficulty when, the facts do not call for such charge, see Tillery v. State, 24 Tex. App. 271, 5 S. W. 842, 5 Am. St. Rep. 882; Morgan v. State, 34 Tex. Cr. R. 225, 29 S. W. 1092, and authorities cited and collated in Branch’s Annotated P. C., p. 1096.

On the proposition that it is error to charge abstract propósitions of law without applying same to the facts, see Reagan v. State, 84 Tex. Cr. R. 468, 208 S. W. 523; Francis v. State, 7 Tex. App. 501; Edwards v. State, 96 Tex. Cr. R. 574, 259 S. W. 578.

For the error complained of,, the judgment will be reversed and the cause remanded. 1


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    DORSEY v. STATE.
    (No. 12345.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    H. L. Edwards, of'Nacogdoches, for appellant. ’
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of a still and equipment for the purpose of manufacturing intoxicating liquor; the punishment confinement in the penitentiary for two years.

About the 1st of June, 1928, officers found appellant and his wife near two stills and some barrels of mash. The stills were not in operation, but appeared to have been in use. At the time the officers approached, appellant was pouring some chops in one of the mash barrels. He also had some sugar with him. The officers were of the opinion that he had 40 or 50 pounds of sugar. They searched appellant’s residence, but found no whisky therein. They had seen appellant at the still two days prior to the time they made the raid. A witness for the state testified that some time early in the year 1928 or late in the year 1927 he bought some whisky from appellant, paying him $7 a gallon therefor. Appellant’s wife testified that she and her husband were gathering huckleberries when they accidentally came upon the still; that they had only been there about 15 minutes when the officers approached. Appellant did not testify.

Appellant timely objected to the testimony of a state’s witness to the effect that he bought - some whisky from appellant some time during the first part of the year 1928, or the last part of the year 1927, the ground of objection being that such proof disclosed a “separate and independent offense and would serve no purpose” except to inflame the minds of the jury and prejudice appellant’s rights, and further that said transaction was too remote. We think the objection should have been sustained. It is error to admit proof of disconnected and separate offenses when the only purpose such proof could serve would be to show that the accused was a criminal generally. There are recognized exceptions to the rule, among them being that proof of other offenses is admissible if (1) such proof is a part of the res gestse of the alleged offense for which the accused is being tried; (2) or if it tends to show intent when intent is an issue; (3) or serves to prove identity when identity is an issue; (4) or when it is sought to show the guilt of accused by circumstantial evidence, and such proof of another offense connects, or tends to connect, the accused with the alleged offense for which he is being tried;. (15) or when it tends to defeat the defensive theory. Branch’s Annotated Penal Code, § 2347. The testimony complained of was not within any of the exceptions. It was the state’s contention that appellant possessed the still and mash for the purpose of manufacturing intoxicating liquor. The defensive testimony accounted for an innocent presence at the still. No person had seen appellant in possession of the mash and still prior to the latter part of May, 1928. Proof -that only tended to show that more than six months prior thereto appellant had been connected with another whisky transaction of an entirely different nature could not under the facts, of this case throw any light upon appellant’s intent. Such proof neither connected, nor tended to connect, appellant with the offense of possessing mash and a still for the purpose of manufacturing intoxicating liquor. Johnson v. State, 98 Tex. Cr. R. 417, 266 S. W. 155.

On cross-examination, over proper objection, appellant’s wife was required to testify that she and her husband had separated. Appellant had not questioned the witness about the matter on direct examination. It was error to permit the state to examine her as to a matter not connected with or germane to her testimony in chief. Without deciding whether, in the state of the record, the error is reversible, we call attention to the matter in view of another trial.

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

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by , the judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. J.

text:
    FLATT v. STATE.
    (No. 12012.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 13, 1929.

      Roscoe Runge, of Mason, for appellant.
    A. Á. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Possessing intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

Observing a bottle of whisky in the appellant’s car, and having knowledge of other circumstances quite adequate to constitute “probable cause,” as that term is defined in the decision of this court in Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, and other cases, a search of the appellant’s car revealed the presence of something o.ver 100 bottles of whisky. The appellant claimed that it was possessed for medicinal purposes.

The arrest was made on the 5th day of October, 1927. The indictment was returned on the 13th day of March, 1928, and the trial began on the 16th day of that month. The appellant sought a delay upon the ground that he had not had sufficient time to prepare for trial and that certain witnesses whom he named were not available. No process was issued or applied for either before or during the trial. The facts set up in the motion were controverted, and the bills of exceptions were qualified. The motion contained an averment that the appellant had had some negotiations with an attorney who resided in Coleman, and that he expected to make arrangements with him to try tlie case. He claimed that while in jail he had been unable to communicate with his attorney. The controverting affidavit trav ersed these allegations. The appellant was represented by an attorney upon the trial. The statute (article 493, C. C. P. 1925) allows two days after indictment to prepare for trial, and, in the absence of an abuse of discretion, the action of the trial judge in refusing further time will not be overturned. Reed v. State, 31 Tex. Cr. R. 35, 19 S. W. 678; Jones v. State, 83 Tex. Cr. R. 444, 203 S. W. 1101; McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 182. Especially is this true when the evidence of guilt is conclusive and the averments of the motion to delay are not supported upon the hearing of the motion for new trial.

The contention that the indictment ⅜⅛-lated the principal which inhibits a trial for two distinct offenses in the same indictment is not tenable. The indictment was properly drawn in two counts—one charging the possession of intoxicating liquor for the purpose of sale; the other charging the transportation of such liquor. They related to but one transaction. The propriety of .such an indictment has been often affirmed. See Branch’s Ann. Tex. P. C. p. 233, and many cases cited, including Dill v. State, 1 Tex. App. 285.

The declarations of the appellant, made at the time of his arrest, touching the ownership of the whisky, was res gestae of the offense and properly received. Copeland v. State, 94 Tex. Cr. R. 112, 249 S. W. 405; Boortz v. State, 95 Tex. Cr. R. 480, 255 S. W. 434; Reese v. State, 102 Tex. Cr. R. 511, 278 S. W. 451.

There was no error in receiving the testimony of the witnesses to the effect that the appellant was drunk. Such a declaration is not objectionable upon the ground that it was an opinion. Riddle v. State, 107 Tex. Cr. R. 571, 298 S. W. 580; Underhill’s Crim. Ev. (3d Ed.) § 278. The condition of the appellant at the time was a circumstance relevant on the issue of “probable cause” justifying the search.

The whisky taken from the appellant, with the exception of several bottles, was produced at the trial and identified by the testimony of witnesses who took possession of it at the time of the arrest, and who testified that it had remained in their possession. The identity of the whisky was thoroughly established, and the testimony properly received. Nor was there error in receiving the testimony of the sheriff to the effect that a part of the whisky had been given to sick people.

In his testimony, the appellant claimed that one Wood was an important witness in his behalf; that he had bought the whisky from Wood for medicinal purposes. In his cross-examination, there was no error in calling the appellant’s attention to the fact that Wood was not one of the witnesses upon whose absence the application for a continuance was based. The testimony tended to discredit that given by the appellant in his own behalf, and was not improper cross-examination. Huffman v. State, 28 Tex. App. 177, 12 S. W. 588, and other cases collated in Branch’s Ann. Tex. P. C. § 147.

The refusal of the court to require the state to elect as between the two counts in the indictment was not error. Gonzales v. State. 12 Tex. App. 663, and eases in Branch’s Ann. Tex. P. O. p. 233, § 444.

There was no error in refusing to instruct a verdict for the defendant.

The appellant having testified on the trial that Wood was an important witness in his behalf, and having been cross-examined with reference to his failure to name Wood in his application for a continuance, there was no impropriety in-counsel for the state, in his argument, to comment upon the facts to which reference has been made.

The judgment is affirmed.


text:
    McCasland v. State.
    (No. 12282.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    Kirby, King & Overshiner, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

It is to be regretted that necessity exists for reversing this case upon errors arising from the argunfent of the prosecution. Two bills of exception appear in the record without any explanation or qualification. The first of these two bills sets out that the county attorney in his opening argument to the jury said: “Roy Swann testified that he. bought whisky from Fred McCasland and there is no one here to dispute it.” In the second of said bills it is set out that the district attorney, in his closing argument to the jury, said: “Roy Swann testified that he bought the whisky from the defendant. There is no one here to contradict the witness Roy Swann.” These bills further set out that appellant did not take the stand and testify; that no witness was present at the alleged sale or testified regarding the fact that appellant did sell to Swann intoxicating liquor, save Roy Swann himself. They further reveal that special charges were given regarding each argument, instructing the jury not to consider same. Nothwithstanding such charges, we are constrained to hold the fact of such statement in argument to require a reversal of this case. No one is shown to have been present at the time of said alleged sale. A witness testified that he was within sight, and could see motions, but could not tell what was said. Our statute plainly forbids comments upon the failure of a defendant to testify, and we have often had occasion to condemn remarks made by prosecuting officers, whose necessary implication was that by same the jury’s attention was called to the fact that the defendant had not testified. Adams v. State, 87 Tex. Cr. R. 67, 219 S. W. 460; Young v. State, 92 Tex. Cr. R. 277, 243 S. W. 472, and authorities cited. We know of no way to stop the practice of mating such remarks, and are compelled to reverse cases and have them retried at the expense of the state, which reversals could have been avoided by the refraining from such arguments. It seems sometimes as though the prosecuting attorneys endeavor to see how closely they can edge up to saying something that ought not be said, and still try to stay within the rules. Our observation is that there are always enough facts in any trial to furnish basis for legitimate argument, and if there be not such facts, then certainly a conviction ought not to be obtained by argument that is not legitimate.

For the error of the argument referred to, this judgment is reversed, and the cause remanded.


author: LATTIMORE, J. HAWKINS, J.

text:
    BANKS v. STATE.
    (No. 12315.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 6, 1929.

      F. O. Fuller, of Houston, and H. S. Iilley, of Cold Spring, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for trie State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor ; punishment, two years in trie penitentiary.

A search of appellant’s dwelling house resulted in trie finding of a still in operation, and a quantity of whisky in bottles and other containers. Trie affidavit for search warrant to search said private residence was fatally defective, in that same nowhere stated in words or substance that such residence was a place where intoxicating liquor was being sold or manufactured. This is necessary under the plain language of article 691, P. C., which states that “no warrant shall be issued to search a private dwelling occupied as such, unless * * ⅞ the affidavit ⅜ * * shows * * * residence” to be “a place where intoxicating liquor is sold or manufactured in violation of the terms of this act.” The affidavit in this case states that there is in the residence of Ned Banks “one liquor still, coils, mash and whisky,” which is being used as a means of violating the liquor laws. The liquor laws, so called, of this state, may be violated in various ways, other than by the sale or manufacture of intoxicating liquor. The failure of the affidavit for search warrant to search the private residence of the appellant to state therein that intoxicating liquor was being sold or manufactured in said dwelling rendered said affidavit insufficient, and also makes invalid the warrant issued thereon, and, if no other reason, for its admission existed, would compel the rejection of the testimony of what was 'found by the officers in their search of said residence.

However, it is abundantly shown that, when the officers approached the residence of appellant, and before they entered same, they observed him engaged in the perpetration of a felony, which, being within the view of said officers, justified them in arresting him and searching said house.

Sir. Patrick testified as follows: “From where I was at the back of the house I could see in the house before I ever entered it. I could see in the house through a crack at the back door. I was on the outside of the house at that time, and Sir. E. L. Everitt was around in front. * * * I saw in there a pipe and a bucket hanging on the end of it and whisky dripping out; the still was on the cook stove. The defendant was sitting in the room — in the front room.”

Mr. Everitt testified: “I could see inside of the house from where I was on the outside. I could see him standing up in front of the dresser, walking backwards and forwards from one room to another; sometimes he would come out of the kitchen into the bedroom, and go backwards and forwards from the kitchen. He was walking to a dresser in the front room.. With reference to what, if anything, was on the dresser, and what he was doing when he approached the dresser, well, he seemed, the best I could see through a very small crack in the door— I saw bottles sitting on the dresser; it was half-pint and pint bottles; they had whisky in them. [Answering the defendant’s counsel:] The way I could tell it was whisky was it looked red; it was bottles with something red in them. I said I afterwards entered that front door, and when I entered the front door I found whisky on the dresser; á still was found in the kitchen; and as to whether the still was in operation, it was dripping whis-ky; he was catching it in a ten-pound lard bucket; there' was a fire under it. I do not know how much whisky I found there; it was five or six half pints and pints; it was on the dresser.”

One -of said officers was at the back door, the other at the front, when they saw wha't has been detailed. One of them had walked on the gallery of the house; the other stood by the door on the outside.. Neither officer had been guilty of any unlawful act. In Steverson v. State, 109 Tex. Cr. R. 11, 2 S.W.(2d) 453, we said: “If without unlawful acts- on their part things described in article 690, P. C., came to view of the officers, from which it was apparent that a felony was being committed in their presence, then- a seizure without a warrant of the things being used to violate the law would be authorized. Under proper circumstances, this course is authorized by article 690, P. C., and article 212, 0. C. P., and has been sanctioned under the decisions of this court and the Supreme Court of the United St.ates in many cases. See Agnello v. United States, 269 U. S. 30, 46 S. Ct. 4, 70 L. Ed. 148, 51 A. L. R. 409; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Marron v. United States [275 U. S. 192] 48 S. Ct. 74, 72 L. Ed. [231]; Hodge v. State, 107 Tex. Cr. R. 579, 298 S. W. 573.”

Agnello v. United States, 269 U. S. 30, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409, is quoted in Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 550, as supporting the same rule. Other authorities might be cited. We are of opinion that the evidence was properly received, and that no error appears in any matter complained of in the three bills of exception in the record. The testimony amply supports the verdict and judgment.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant argues that the acts of the officers were unauthorized, and the search made by them unreasonable and unwarranted, and in violation of the provisions of the Constitution. ' He cites no authorities supporting such contention. In addition to articles 691, P. O. and 212, O. C. P., and the cases cited in our original opinion, we refer to the following authorities, which also directly support the conclusion announced: Hodge v. State, 107 Tex. Cr. R. 679, 298 S. W. 673; Greenwood v. State (Tex. Cr. App.) 9 S.W.(2d) 352; Melton v. State (Tex. Cr. App.) 10 S.W.(2d) 384.

The motion for rehearing is overruled.


author: HAWKINS, J. ' LATTIMORE, J.

text:
    BANKS v. STATE.
    (No. 12316.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Rehearing Denied March 6, 1929.
    E. O. Fuller, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State. ■ ■
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

This is a compainion case to No. 12315, Ned Banks v. State, 14 S.W.(2d) 280, this day decided. The same affidavit and search warrant discussed in the , opinion in that case is the one here under attack. It follows that the same disposition of the question is called for here. The facts developed in the two cases are practically the'same and are sufficiently set out in the other opinion. The officers, seeing a felony being committed, were authorized to arrest and search. For authorities, see 'opinion in cause No. 12315.

We cannot regard the remark of the district attorney, complained of in bill of exception No. 5, as referring by necessary implication to the failure of appellant to testify. The very language set out in the bill shows that it had reference to some prior remark of' counsel, to which his attention in some way had been directed.

Judgment seems to have been inadvertently entered, adjudging appellant to be guilty of manufacturing liquor. The indictment only charged possessing intoxicating liquor for the purpose of sale, and the instructions of the court authorized conviction for that offense only. The judgment will be reformed, to adjudge appellant guilty of that offense.

As thus reformed, the judgment is affirmed.

On Motion for Rehearing.

' LATTIMORE, J.

Appellant vigorously, insists that testimony as to his making whis-ky, seen by officers through cracks in the doors of his house, should not have been admitted. As far as the record discloses, the house was in the open. The Supreme Court of the United States has often held that an officer may arrest — or search and arrest— when he discovers by the use of his senses facts supporting the proposition that a felony is being committed; in substance and as applied to the facts of this case, that whisky is being made or possessed. McBride v. United States (C. C. A.) 284 F. 416; United States v. Rembert (D. C.) 284 F. 996; In re Mobile (D. C.) 278 F. 949. Authorities of other states are to the same effect. Earl v. State, 124 Ga. 28, 52 S. E. 78, State v. Lutz, 85 W. Va. 330, 101 S. E. 434. Numerous cases are collated by Mr. Branch in his Annotated P. C. § 1979, announcing the right of any person, officer or otherwise, to arrest one who commits a 'felony in his presence or within his view. Weaver v. State, 19 Tex. App. 569, 53 Am. Rep. 389, Leache v. State, 22 Tex. App. 314, 3 S. W. 539, 58 Am. Rep. 638. Under all of our authorities, the right to arrest carries with it the right to search.

The motion for rehearing will be overruled.


author: EATTIMORE, J.

text:
    DUNN v. STATE.
    (No. 11544.)
    Court of Criminal Appeals of Texas.
    Jan. 16, 1929.
    Rehearing Denied March 13, 1929.
    J. W. Osmond, of Anadarko, Okl., Reynolds & Heare and Hill & Engledow, all of Shamrock, and Black & Graves and Robert M. Turpin, all of Austin, for appellant.
    A. A. Dawson, State’s Atty., 'of Austin, for the State.
   EATTIMORE, J.

Conviction for bringing stolen property into the state of Texas, knowing it to be stolen; punishment, five years in the penitentiary.

It is alleged in the third count of the indictment that appellant, in the state of Oklahoma, fraudulently took one International motortruck of the value of $2,000, and one trailer of the, value of $150, the property of one A. E. Fent, which act was then and there a felony by virtue of the law of Oklahoma, which act, if committed in the state of Texas, would have been theft under the laws of this state and that appellant thereafter did bring said property into the state of Texas. It was sufficiently shown that the truck in question belonged to one Beal, but that Fent was in the actual care, control, and possession of said truck at the time it was taken. There is no dispute in the testimony of the fact that the truck in question was taken from the possession of Fent in Seminole, Okl., on the night of May 7, 1927;, nor of the further fact that on May 16, 1927, said truck was found in Shamrock, Wheeler county, Tex. It had been repainted, refloored, and changed in almost every way which could lead to its identification. When found in Shamrock, the truck was in possession of Andrew and Bill Schleg-el. Andrew said at the time that he was operating the truck for Mr. Dunn on a commission ; he asked permission to put in a long-distance call for Mr. Dunn at Anadarko, Okl.; the call was put in, and Schlegel talked to some one. Appellant and his attorney showed up in Shamrock that same evening. Anadarko, Okl., was about 130 miles from Shamrock. It appears that, when Mr. Beal found his truck in possession of Andrew Schlegel in Shamrock, there were with it two other trucks which were afterwards claimed, identified, and taken away as being stolen property; one ■ being taken by Mr. Manahan and the other by Mr. Stevenson. It is not disputed that appellant claimed these three trucks as his when he reached Shamrock on the occasion in question. A Mr. Davis, a filling station man, who said that he had frequently seen appellant with Andrew Schlegel before, and who testified that he had serviced these trucks and that they had been parked in his garage, testified that about 8 or 8:30 on the evening of May 16th Andrew Schlegel came to his place and wanted him to come down to his (Schlegel’s) home. Witness went and there met this appellant, Dunn, and his attorney, one Osmond. Appellant showed Davis his certificate of title, license, registration tags, etc., and induced Davis to go and compare same with the trucks in question and report to him whether they were the same. Davis did this, found they were the same, and so reported to appellant.

There are eleven bills of exception, in the record which, if comprehended, relate themselves to the single question as to whether the facts sufficiently show that appellant, Andrew Schlegel, and W. F. Schlegel, commonly referred to as Bill Schlegel, acted together in the theft of Beal’s truck in Oklahoma and the bringing of same into Texas, in which event they would be principal offenders and coconspirators, for which reason the acts aDd words of each pertinent to and shedding light on the main issue involved, to wit, the theft of said tract and its removal to Texas, done and said during the existence of the conspiracy and in pursuance thereof, whether in the presence and hearing of the others or not, would be admissible as evidence against any or all of them if on trial for the tating of such property and bringing it into this state. We deem it unnecessary to set out in detail the matters complained of in each bill of exceptions, but, briefly and in substance, said bills complaifi of actions and words of the two Schlegels and other parties who were employed to work upon the trucks in question and fix them, all of which testimony related to said tracks, their condition and movements', and the relations of appellant and. the two Schlegels to said trucks up to and prior to the time same were found in the possession of Andrew Schlegel in Shamrock, Tex. One of the bills relates to the opening of an account by Andrew Schlegel in the name of the Dunn Truck Line in April and May, 1927, and the signing of the checks to withdraw the. deposits made in said account.

The rule is well settled in this state that acts and declarations of coconspirators, in pursuance of the common design, if said and done before the termination of the conspiracy, are admissible against any and all of the parties thereto on trial for an offense comprehended by such conspiracy. Sometimes the question arises as to when such conspiracy terminates, if at all. The answer depends on the facts of the particular case. As having some- application to a case like the one before us, Franks v. State, 36 Tex. Cr. R. 151, 35 S. W. 978, is referred to, in which this court said:

“The evidence in this case, shows that a lot of the goods taken in the burglarious entry, were found at the house where the defendant was living." They were found, however, in pursuance of statements made by Dock Wee-den. These statements were made after the burglary. But the testimony tends to show that both defendants were still in joint possession of the goods, and were preparing to remove them to Canadian. If thfe’ disposition of said goods was a part of the common purpose and design of said codefendants, and they were still acting together in the disposition or concealment of said articles, and the common design with reference thereto had not terminated, then any statement made by Weeden was legitimate evidence against his codefend-ant; but if the common design and purpose terminated with the burglary, and Weeden made these statements afterwards, such statements could alone affect him.”

The subject of the admissibility of the declarations of coconspirators and when a conspiracy terminated was considered at some length in Sapp v. State, 87 Tex. Cr. R. 606, 223 S. W. 459, in which, upon citation of many authorities, we said:

“If there was a conspiracy between the parties, it is obvious that the main object was to obtain the property of deceased, which object was only partially obtained by her death, there remaining, as stated above, yet to be accomiDlished by said conspiracy, the probating of her will, and the reduction to actual possession and ownership of her property, and in such case, so long as the parties to a conspiracy are still moving toward the accomplishment of any of its objects, the acts and declarations of one in pursuance of the common design; whether made in the presence and hearing of the others or not, becomes admissible against each of the others, even though tried separately.”

The law in regard to this question seems plain. This being true, let us turn to the facts to see whether the conspiracy here, if any, terminated when the property was taken in Oklahoma.

We note further in the testimony of Mr. Davis that he said that the slips showed him by appellant on the night of May 16, 1927, showed title to the trucks in possession of Schlegel to be in appellant; also that the trucks had been transferred to appellant, or his Dunn Truck Line, by the Jones Truck Line. After Davis, the state introduced a Mr. Daniel, who testified that he was in Shámroek on the occasion of the examining trial of the Schlegels for theft of these trucks, and that he had a conversation with appellant, at which time this appellant had not been arrested. Appellant told him that he had known Andrew Schlegel for many years, and that Andrew had often talked to him about buying trucks and letting him, Andrew, and his brother Bill take them out in the oil* fields and do hauling bn a fifty-fifty basis. Appellant further told him that about April 24, 1927, he and Andrew had gone to Oklahoma City to see about buying some repossessed trucks, and that, as they were leaving the place of business of a firm whom they had gone to see, a man spoke to them and said he understood they wanted to buy some secondhand trucks; that this man introduced himself as Z. M. Jones, and told them he had some tracks out about 6 miles, and took them out and showed them the trucks. Daniel further testified that appellant told him that he purchased three of these trucks, paying for same $7,800 in cash money which he had in his pocket, and that the trucks were then turned over to Andrew and Bill Schlegel to drive to Shamrock, Tex. He further said appellant told him he had never seen Z. M. Jones before and did not know him; also that the trucks were to be taken by the Schlegel boys and 'operated on a fifty-fifty basis for the benefit of themselves and appellant.

The state also introduced Mr. Spencer, a deputy highway officer of Oklahoma, located at Rush Springs, Okl., who testified that on March 25, 1927, a man who gave the name of E. M. Jones came to the witness and wanted the latter' to take his application for certificates of title and registration of three International trucks which the supposed Jones told witness he had boug'ht in Texas, and. that they were not present but would be along in a little while. Jones produced transfers to the Z. M. Jones Truck Dine of the three trucks, which assignments were executed by one Robert J. Manning of Hereford, Tex., before Nellie Mae Cook, a notary public of Potter county, Tex.; the date of said transfers being January 2, 1927. The engine number of one of said trucks was 12461. Mr. Spencer testified that he accepted Jones’ application and issued him the licenses and also continuous ownership tags for said three trucks, the latter being Nos. 458096, 458097, 458098, respectively. Said applications were filled out in the presence of Mr. Spencer by Jones, and contained the following: “I, the undersigned applicant do solemnly swear that I am the owner of the above described motor vehicle, and that the statements contained herein are true.” This statement, contained in each of the three applications, was sworn to by Jones before .Mr. Spencer. .

The state also introduced testimony showing that on April 23, 1927, certificates of title and registration were issued by the highway department of Oklahoma to this appellant, E. A. Dunn, as the assignee of the Z. M. Jones Truck Dine to each of the three trucks described in the applications filed before Mr. Spencer by E. M. Jones as the agent for the Jones Truck Line. The certificates of title and registration issued to appellant contained the same continuous possession tag numbers and the same engine numbers as appeared set out in the applications and licenses issued on March 25th to E. M. Jones; and we might further remark here that these are the same trucks that were found in the possession of Andrew Schlegel at Shamrock.

As we have already remarked, these three trucks were .shown to all be stolen property; one of them being the Beal truck. Bearing in mind that the Beal truck was' taken on the night of May 7, 1927, it was shown that on May 8 and 11, 1927, the Cicero Smith Lumber Company at Shamrock sold to Andrew Schlegel a quantity of red wagon paint and black automobile paint, turpentine, etc., and that, when recovered the Beal truck had been recently repainted so that from the standpoint of color it was not at all like the truck when taken. It was also shown by workmen who worked on the truck that same had been refloored, the pine floor which was in it when taken having been removed and a hardwood floor substituted. It was further shown by the sheriff and tax collector of Deaf Smith county, Tex., of which Hereford is the county seat, that there was no such man living in Hereford as Robert J. Manning; nor had there ever been a concern known as Z. M. Jones Truck Line operated anywhere in Deaf Smith county. It was further shown that an inspection of the records of notaries public of Potter county for many years past failed to reveal any Nellie Mae Cook as notary public of that county. The state further proved by Mr. Spencer upon this trial that he had seen present and around the streets of Shamrock the man who came to his office in March, 1927, and represented himself to be E. M. Jones, the agent of Z. M. Jones Truck Line, and who swore he was owner of said trucks; and that E. M. Jones and Andrew Schlegel were one and the same person.

We are led to believe the trial judge correct in his conclusion as announced by his qualification to each of the bills of exception in question, viz.: That he admitted the testimony upon the theory that it was shown by the record in this case that this appellant and Andrew and Bill Schlegel were co'conspirators in the taking of the truck in question and the bringing of it into Texas, and that they were still operating together in possession of said stolen property at the time each and all of the acts took place and statements were made here complained of. Summarizing, it seems to us plain that a plot to steal trucks and change their engine numbers and to remove means of identification and to prepare identification for nonexistent trucks, also to get licenses and title registration theretofore applied for and issued to strangers by some of the careless highway authorities in Oklahoma, looms large in this case. The wily stranger who applied in March for the registration of trucks which apparently he did not then own or had not yet reduced to possession was fortified with apparently forged transfers for such nonexistent trucks. As proof of this, Andrew Schlegel, on March 25, 1927, presented himself to Spencer, a deputy highway officer of Oklahoma, and claimed to Spencer that his name was Jones and that he was authorized to act as agent for Z. M. Jones Truck Line, which seems also to be á nonexistent concern. Schlegel, alias Jones, wanted three title registrations for trucks which his papers showed to have been transferred to the Z. M. Jones Truck Line on January 2, 1927, by Robert J. Manning of Hereford, Tex., apparently a fictitious person, by assignment before Nellie Mae Oook, notary public, also a fiction. Schlegel swore before Spencer that his name was E. M. Jones, also a falsehood. Also he said that Z- M. Jones Truck Line had three trucks' bought in Texas whose engine numbers and continuous ownership tags dated practically six weeks before the theft of the Beal truck, which numbers all appeared on these trucks in possession of Schlegel later in Shamrock, at which time he then said he was operating them for Dunn, a statement verified by Dunn himself when he appeared on the scene. One of the engine numbers of the trucks thus so registered by Schlegel, alias E. M. Jones, was given by him in March as 12461, and the transfer which he presented from Mr. Manning, dated January 2d, referred to the same truck. The continuous ownership tag which he obtained on this truck was 458098. Bearing in mind that the date of Jones’ licenses for these trucks was March 25th, we next observe that on April 23d, still two weeks before the theft of Beal’s truck, appellant and Schlegel went to Oklahoma City, according to Dunn’s statement, and there met a stranger who gave them his name as Z. M. Jones, from which man Dunn, or’ Dunn and Schlegel bought three trucks, which Dunn said to Daniel were carried from Oklahoma Oity to Shamrock by the Schlegels, which trucks were on that day, to wit, April 23, 1927, registered in the highway department in Oklahoma City by Dunn himself as his trucks; the engine number of one of them being 12461, and the continuous ownership tag of said ttuck being No. 458098. The Beal truck, the one in question here, when stolen on May 7, 1927, showed engine No. 11943. When discovered in possession of Schlegel at’ Shamrock, the engine number of Beal’s truck had been changed to 12J/61, and it then bore continuous tag No. 45809S. These facts seem entirely convincing, and it would be idle for us to further analyze them for the purpose of demonstrating the guilt of-this appellant, or of the fact that he was acting together with the Schlegels in the acquisition of the particular truck and its removal to Texas and in its continued operation.

The court’s charge on principals is applicable to the facts and according to the precedents. When he lays down the rule applicable to the testimony of conspirators, he follows the authorities; as also he does in that part of his charge giving to the jury the law of circumstantial evidence. Appellant introduced no evidence save two or three registration receipts, which we deem to be of no particular force.

Binding no error in the record, the judgment will be affirmed.


author: LESLIE, J.

text:
    GAITHER v. GAITHER.
    (No. 528.)
    Court of Civil Appeals of Texas. Eastland.
    Jan. 18, 1929.
    Rehearing Denied March 1, 1929.
    R. E. Rodgers, of Hamlin, and Smith & Smith, of Anson, for appellant.
    Thomas & Shapard, of Anson, for appellee.
   LESLIE, J.

Appellant, M. Á. Gaither, brought this suit to set aside a deed to homestead on the ground that the certificate of the notary’s acknowledgment was incomplete, and for the further reason that appellee, R, E. Gaither, failed to carry out the conditions constituting the consideration for the execution of the deed. There was a general denial and a plea of ratification by the plain-' tiff. The case was tried before the court and jury, and, upon the answer to a single special issue, the court rendered judgment in fayo-r of the defendant, and this appeal follows.

It appears that M. M. Gaither, deceased, and his wife, M. A. Gaither, appellant herein, resided upon the N. W. ¾ of subdivision 4, league No. 358 of the Goliad county school lands, located in Jones county, Tex., as a homestead. March 7, 190S, they deeded the same to R. E. Gaither for $1 and the further consideration that said R. E. Gaither take care of Mrs. M. A. Gaither (plaintiff below) her lifetime, furnishing her with the comforts of life, food, clothing, etc. There was a provision forfeiting the conveyance in event the grantee failed to comply with the provision just noted. The defendant, R. E. Gaither, became insane during the year of 1910, and has since so remained. The above deed was acknowledged by the grantors before C. W. Middleton, a notary public, whose certificate to the deed is: “Before me, G. W. Middleton, a Notary Public in and for Jones County, Texas, on this day personally appeared M. M. Gaither and wife M. A. Gai-ther, 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.”

Upon the execution and delivery of said deed R. E. Gaither entered upon the discharge of the obligations assumed therein by him, and continued to meet the same until he became insane, about the year 1910, since which time, according to the jury’s finding, such obligations have been discharged by the family and guardian of said R. E. Gaither. M. M. Gaither died a few months after the delivery of the original deed of March 7, 1908, and subsequent to his death said M. A. Gaither, on October 28, Í916, undertook to ratify the original deed, and in such deed of ratification recited that:

“Whereas, it appears from the Notary’s certificate that the acknowledgment of said M. A. Gaither to said deed was not properly taken, though in truth and in fact her acknowledgment was taken in accordance with the law in such cases provided, that is to say, the Notary Public, C. W. Middleton, explained said deed to the said M. A. Gaither, and she did acknowledge to him privily and apart from her said husband that the same was her act and deed, that she had willingly signed the same for the purposes and consideration therein stated and that she did not wish to retract it; and whereas, because of said error there is some question as to the validity of said instrument; and whereas, the said Notary Public G. W. Middleton, is now dead; and whereas, it was the intention of said M. M. and M. A. Gaither to convey said tract of land to the said R. B. Gaither, for the consideration therein named; Now> Therefore, Be it known, for the purpose of correcting the error aforenamed, I, the said M. A. Gaither, the surviving wife of M. M. Gaither, deceased, have ratified, confirmed^ and do hereby ratify and confirm the aforesaid deed and do by these presents bargain, sell and convey to said R. E. Gaither for the consideration aforenamed, the above described tract of land.”

Article. 6655, R. S. 1925⅛ provides that: “When the acknowledgment or proof of the execution of any instrument in writing may be properly made, but defectively certified, any party interested may have an action in the District Court-to obtain a judgment correcting the certificate.”

Suits under such circumstances are not uncommon in this state. The recitals set out above conclusively establish that the vice relating to that instrument was in the notary’s certificate and not in M. A. Gaither’s having failed to meet any of the statutory requirements essential to the conveyance of her homestead. Since she has voluntarily executed the ratification deed and thereby rendered it unnecessary for R. E. Gaither or his representatives to resort to court to obtain a judgment correcting the original certificate, thereby establishing the evidence that such conveyance was originally made by her in compliance with law, it would seem that such deed of ratification fully met and complied with all the purposes of such a suit; ■and we believe that it related back to the original deed and that it fully perfected that instrument as evidence of a complete conveyance then made by her and her husband of the property conveyed to R. E. Gaither. ■

In the case of Johnson v. Taylor, 60 Tex. 360, is found this language: “While it is true that the statute must be complied with in order to pass title to a married woman’s separate estate, it does not follow necessarily that an instrument willingly executed’ by her, and actually acknowledged as required by law before a proper officer, is absolutely void, simply because^ the officer has failed to make the proper certificate which the facts authorized and the law required him to make.”

We do not believe the original deed by M. M. Gaither and wife to R. E. Gaither was void by reason of the notary’s omission; and we are of the opinion that M. A. Gaither, after the death of M. M. Gaither, had the power to ratify and confirm said original instrument by the deed of October 28,1916, wherein she clearly admits that her original acknowledgment was taken in the manner required by law.

The court held in Halbert v. Hendrix (Tex. Civ. App.) 26 S. W. 911: “When there is a defective acknowledgment and certificate ofi the wife’s signature and assent to a conveyance of a homestead, it is held that she may make a new acknowledgment with intent to cure the defect; and, where the acknowledgment is properly made and certified, it will, in the absence of intervening rights of third persons, relate back to the time at which the deed was originally delivered, and no new delivery is required.” This, we think, is true of the ratification deed in the instant case.

As to the plaintiff’s fifth proposition, complaining that the court erred in asking the jury, “Did the defendant, R. E1. Gaither, or his heirs or legal representative,” fail to furnish M. A. Gaither the comforts of life, etc., as per the terms of the original deed, this issue was answered in the affirmative by the jury, and the complaint is that R. E. Gaither, being alive and in the asylum, had no heirs, and that the use of such term in the submission of the issue was a “fundamental error apparent on the record, calculated to mislead the jury.” The issue as given was not objected to by the appellant, therefore all objections, including this one, were waived by the appellant under article 2185, R. S. Neither was an issue requested under article 2190, R. S., and the court was, therefore, under this record, justified in making findings to sustain his judgment.

Further, the word “heir” was evidently understood by the -litigants, court, and jury to mean children, and under the peculiar facts of this case it would be hypercritical to consider the inadvertent use of the word “heir” as an error fundamental ip nature. We do not consider the appellant prejudiced or the jury misled by the word as used. The evidence abundantly supports the jury’s conclusion to the effect that R. E. Gaither and his family, during the years of his sanity, substantially complied with the conditions of the deed, and that, sinee he fell a victim to the malady that now confines him in the asylum, his wife and children and the guardian, W. M. Gaither, have carried out and met the obligations cast upon R. E. Gaither by the original deed.

For the reasons stated, appellant’s propositions 1 to .6, inclusive, are overruled.

The authorities cited by the appellant set forth instances in which the certificate of acknowledgment had not been corrected in a-ny manner, either by a judgment of the court or by ratification, and of course such omissions could not be cured by parol evidence at trials in suits in trespass to try title. Other authorities cited involve cases where the acknowledgments were not taken as by law required, in that there were omissions, either of privy examination, explanation, appearance before a notary, etc. Such authorities would have no bearing on the instant case, which is one involving an inaccurate certificate on the part of the notary.

By the seventh proposition complaint is made that the court erred in appointing W. M. Gaither guardian ad litem to represent the interest of the defendant, R. E. Gaither, upon the trial of this cause, for the reason that said W. M. Gaither was not a disinterested person, being a brother of R. E. Gaither and ah heir of the deceased, M. M. Gaither. W. M. Gaither was the guardian of the lunatic’s estate, and, under article 4164, “entitled * * * to bring and defend suits by or against him,” the ward. The record discloses no necessity for the appointment of said Gaither as guardian ad litem also, since article 2159, R. S., provides that the court shall appoint a guardian ad litem for a lunatic for the purpose of defending a suit against him when he “has no guardian within the state.” W. M. Gaither, in the capacity of guardian of the ward’s estate, had already become a party to the litigation. He appeared in behalf of his ward and in that capacity has loyally and successfully established and maintained every right to which the ward was entitled, and if it could be said there was any error in the appointment of him as guardian ad litem also, it was harmless error, and the judgment should not he disturbed on a complaint that evidences no harm to the ward. This proposition is overruled.

The eighth proposition is also overruled. It complains that the court refused to-submit to the jury the three special issues tendered by appellant. They were grouped on one sheet of paper, and some of them, if not all, were merely of evidentiary matters, and the court did not err in refusing to submit them. Some of them being incorrect, the court was justified in refusing all. Longworth v. Stevens (Tex. Civ. App.) 145 S. W. 257.

■ We believe the trial court has properly tried the cause and rendered a correct judgment. For the reasons assigned, it will be affirmed.


author: HIGGINS, J.

text:
    PYOTE INDEPENDENT SCHOOL DIST. v. DYER, Tax Collector.
    (No. 2294.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 28, 1929.
    Rehearing Denied March 7, 1929.
    T. H. Neel, Rutledge Isaacks, and L. A. Dale, all of Pyote, for appellant.
    Henry Russell and Drane & Hubbard, all of Pecos, and J. Lee Bilberry, of Barstow, for appellee.
   HIGGINS, J.

This is a suit for mandamus brought by the Pyote independent school district against E. I. Dyer, tax collector of Ward county. A general demurrer to the petition was sustained. The plaintiff declining to amend, its suit was dismissed.

The material facts disclosed by the petition are as follows: By order of the county board of trustees of Ward county, dated August 6, 1928, common school-district No. 4 of Ward county was created an independent school district under the name of Pyote independent school district, the relator herein. On September 15, 1928, seven trustees of the independent district were duly elected and qualified and upon the same date said board of trustee^ in due form ordered'an election to be held October 13, 1928, on the propositions of levying a maintenance tax, the issuance of schoolhouse bonds, and the assumption of the bonded indebtedness of said common school district No. 4. At said election all propositions were adopted and the result declared by the board of trustees. Thereafter the board appointed a special assessor, who assessed the property in the district. The assessments were duly equalized by a board of equalization duly appointed and thereafter the board of trustees levied taxes for the year 1928 and on or about December 1, 1928, presented the tax rolls of the district to the respondent as tax collector of Ward county and demanded that he collect the taxes shown by the rolls so presented.

Respondent refused to accept said rolls and collect such taxes justifying his refusal so .to do upon the fact that on or about August 15,, 1928, the commissioner’s court of Ward county levied a tax on the property in said common school district No. 4, and said court, on October 1, 1928, finally approved the tax rolls of Ward county showing the aforesaid levy for school purposes on the property in said common school district No. 4.

The action is to compel the county tax collector' to accept the tax rolls prepared by the assessor of the independent school district and collect the taxes shown to be due by such rolls.

The question at issue is whether the tax levy for the year 1928 of the commissioners’ court made August 15, 1928, shall prevail over the subsequent levy by the board of trustees made subsequent to the tax election held on October 13th. The question is novel and not altogether free from doubt, but we are of the opinion the tax levy of the commissioners must prevail.

The commissioners’ court levies and causes to be collected the taxes for common school districts. In independent school districts incorporated for school purposes only the board of trustees of such districts does so. Article 2784, R. S.

Common school district No. 4 was changed into an independent school district under section 5 of chapter 84, p. 228, Acts of 40th Legislature, First Called Session, which reads:

“Whenever a majority of the legally qualified property taxpaying voters residing in a Common School District, or one or more Common School Districts formerly constituting an Independent School District, desire to incorporate the said Common School District as an Independent School District for school purposes only, they may do so on a petition presented to the County Board of Trustees, and when the said County Board of Trustees finds that the petition is duly signed by a majority of the legally qualified property taxpaying voters, and sufficient evidence being presented that said district when formed into an Independent School District will be financially capable of maintaining High School work at a reasonable cost per capita, they shall grant, said petition by making an order upon the minutes of said County Board of Trustees; said order shall state the name by which said Independent School District shall be known and by which it may sue and be sued; at the same time said County Board of Trustees shall order an election in said Independent School District for seven school trustees, said election to be held according to the General Election Laws of the State; the returns of said election shall be made to the County Board of Trustees who shall declare the result; when the newly elected school trustees have qualified, said Independent School District shall enjoy all the privileges of an Independent School District as provided by Statutes.”

The last portion of this section makes it plain relator did not acquire the taxing power of an independent school district until the election and qualification of its trustees on September 17th, which was subsequent to the tax levyomade by the commissioners’ court. Even then full power to levy the taxes in question was not vested in the board of trustees, but was dependent upon the result of the election ordered held October 13th. When a common school district changes into an independent school district for school purposes under the law quoted, there is necessarily a considerable lapse of time after the making of the original order by the county board of trustees granting the petition for such change, before the board of trustees of the independent school district • can .levy a tax for maintenance of the schools, to pay interest and create a sinking fund upon the outstanding bonded indebtedness of the old common. school district. In some instances it would happen that the board of trustees could not function in its taxing power in time to provide the necessary funds for the immediate purposes mentioned. It is inconceivable that the Legislature contemplated or intended that such a deplorable situation should ever arise or be permitted.

We are of opinion that, during the transitory period between the entry of the initial order by the county board of trustees and the election and qualification of the board of trustees of the newly created independent school district, it is the duty and within the lawful authority of the commissioners’ court to levy the necessary taxes for the district as a common school district. For the purpose of taxation the creation of the independent school district is incomplete and ineffective until the election and qualification of the school district trustees; that for the taxing purposes indicated the authority of the commissioners’ court remains in full force and effect at least until such election and qualification. The tax levy for 1928 by the commissioners’ court of Ward county having been made for the old common school district No. 4, and at the proper time, it was a tax lawfully levied, was not nullified by the facts subsequently transpiring, and such levy inures to the benefit of relator as the successor in interest and identity of common school district No. 4.

Upon this view it follows the respondent was justified in his refusal to accept the tax rolls tendered by relator and in refusing to collect the taxes shown by such rolls; hence the demurrer was properly sustained.

Affirmed.


author: WALTHALL, J.

text:
    JESSEN v. SCOTT.
    (No. 2240.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 21, 1929.

      See also (Civ. App.) 10 S.W.(2d) 185.
    Knollenberg & Cameron, of El Paso, for plaintiff in error.
    Harrison & Scott, of El Paso, for defendant in error.
   WALTHALL, J.

Louis A. Scott brought this suit against William Jessen and W. S. Ray Manufacturing Company, alleging the latter to be “a corporation duly incorporated, having its principal office and place of business and residence in the City of San Francisco, California,” and that it was and is now engaged in the manufacture, sale, and distribution of a machine known as the Ray rotary fuel oil burner, and had and now has William Jessen as its agent and representative in El Paso county, Tex.; that Jessen, acting individually and as agent of said corporation, represented to defendant in error that he had one of the latest types of said burners that he would install in defendant in error’s residence and connect same to the furnace in said residence complete with clock thermostat and all other automatic controls for the sum of $350, and warranted said burner and all equipment and controls to be in perfect mechanical condition, and guaranteed said burner and controls to give satisfactory service, and to heat defendant in error’s residence more quickly and efficiently and at less cost than by burning coal; that relying upon said •representations and warranties and believing same to be true, on March 14, 1927, he purchased said burner, and in payment therefor he executed his 12 promissory notes in monthly installments of $29.17 each, payable to the order of El Paso Engineering Company; that said notes were promptly sold, the purchaser being a bona fide purchaser for value without notice; that he paid said notes and the interest due thereon of $14.83. Defendant in error alleges that, though requested, the clock thermostat was never installed ; that said burner and equipment gave only partially satisfactory service in-March, 1297, for only a few hours after the installation thereof, and never gave any satisfactory service at any time thereafter. The petition then in detail states the defects in the burner and the equipment; that the burner leaked oil and was dangerous to use; the motor to the pump was defective and worn; the automatic controls did not properly function; and there were other defects, so that the whole equipment finally broke down completely, and defendant in error’s residence was without heat for several days during cold weather, thereby causing his family to suffer extreme discomfort and causing one of his children to contract a severe cold and become ill. The -petition alleges that frequent demand was made that the burner be removed and replaced with another or the purchase price be repaid, but said demand was refused, and that defendant in error had said burner disconnected and removed. Defendant in error sues to recover the following items of damage which' he alleges he sustained:

1. $350 purchase price paid.

. 2. $14.83 interest on the notes.

3. $3 paid to have burner dismantled and removed.

4. $85 labor, parts and material to restore furnace as it' was before plaintiff in error damaged same.

5. $150 compensation for physical discomfort to defendant in error and family occasioned by the failure of the burner to function.

6. $75 compensation to defendant in error for his loss of time in working with said burner in trying to get it to heat his house.

The judgment recites that on motion of defendant in error the cause was dismissed against W. S. Ray Manufacturing Company, and that William Jessen, though duly cited to appear and answer, wholly failed and in all things made default, and after considering the pleadings and evidence, finds that plaintiff is entitled to recover against-William Jessen the amount of his damages as prayed for in his petition, and so rendered judgment in the sum of $677.83 and interest from the date of the judgment. From that judgment plaintiff in error prosecutes this appeal.

Opinion.

Plaintiff in error submits two propositions. The first is in effect that a return of the burner and equipment is necessary to have a rescission of the contract of purchase or an allegation that the goods sold are worthless.

The petition does not show that the suit is for a rescission of the contract of purchase of the burner and the equipment, but a suit for damages for a breach of contract and warranties as to the efficiency of the burner and the equipment to perform the service for which they were sold, and itemizing the damage& alleged to have been suffered by reason of such breach, for which judgment is asked. The contract of sale, as alleged, is an executed contract of sale, and a rescission could not be had on such contract. The contention made by plaintiff in error under his first proposition has no application to the cause of action as made by the petition.

The second proposition has reference to the fifth item of damage, compensation for physical discomfort to defendant in error and other members of the family, because of failure of the burner to function, thus compelling them to live in a cold house during cold weather. The proposition submits:

“(a) A judgment cannot he rendered in favor of any one not a party to the suit.
“(b) If a party sues in any capacity not his individual capacity, he must so allege in his petition.”

Louis A. Scott sued in his individual capacity for damages, and alleged that by reason of the burner and equipment failing to function, plaintiff’s residence was without heat for several days during cold weather, “thereby causing plaintiff and his family to suffer extreme discomfort, and causing plaintiff’s child to contract a severe cold and become ill,” and stating that item' of damage at $150.

Our statute provides that the petition shall state the names of parties to a suit and their residences. This, however, might be corrected by exception when interposed. The same might be said where one sues in a capacity other than his individual capacity.

We think, however, the test of the petition here on the item of $150 would be on a general demurrer. The husband can sue for damages to himself and wife. The right of the father to sue for damages for an injury to himself, and the right of the father to sue for damages for personal injury to his family, including his child, presents a different question. Their rights are distinct the one from the other. The right is not common to each. The rule seems to be general that persons having a several interest may join in a suit affecting a common right to all, but persons whose claims are separate and distinct, and where they do not affect all parties alike, cannot join in a suit to establish their separate rights. Stewart v. Gordon, 65 Tex. 347; McDaniel v. Chinski, 23 Tex. Civ. App. 504, 57 S. W. 922; Freeman v. Harrison (Tex. Civ. App.) 143 S. W. 680, in which it is held that the right of a minor child to sue for personal injury, and the right of his father to sue therefor, are separate and distinct rights. The child that suffered from cold and was made ill from cold was in no sense a party to the suit, and, if it could, it did not intervene in its own right, nor file a claim asking judgment for damages; therefore the court had no jurisdiction to render judgment against plaintiff in error for damages suffered by the family or the child. It is not wholly a question of misjoinder of parties, but one of jurisdiction of the trial court to render judgment on that one item; the father and the family having separate and distinct rights which cannot be joined in the same suit.

The child would not be bound by the judgment, and for that reason plaintiff in error should not have judgment rendered against him for any damage suffered by it. As said by Judge Stayton in Stewart v. Gordon, supra: “Causes of action which may be joined, must be such as the plaintiff may enforce against each of the defendants.”

The petition does not state the value of the damages severally sustained by defendant in error and his wife, and the child, and there is no statement of facts, nor findings of the court, from which the damages of each can be ascertained. The judgment is reformed, without prejudice to the child, to the extent only of remitting the item of $150 and interest on that item, and as to all else it is affirmed.


author: O’QUINN, J.

text:
    BEAUMONT HOTEL CO. v. CASWELL et al.
    (No. 1748.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1929.
    Rehearing Denied March 6, 1929.

      Cordon, Lawhon, Davidson & Sharfstein, of Beaumont, for appellant.
    Blain & Jones, of Beaumont, for appellees.
   O’QUINN, J.

Mrs. Ruth Caswell, joined pro forma by her husband, George W. Cas-well, sued the appellant, alleging that in 1919 the appellant corporation was organized, and that stock subscriptions were taken by Beaumont citizens, among which was a $2,500 subscription in the name of George W. Caswell for himself and another in like amount in the name of George Caswell, but for the use and benefit of his wife, Ruth Caswell, and that on May 15,- 1919, he delivered to the trustees, officers, or other persons authorized thereunto, Liberty bonds of the United States of the par value of $2,500, in payment of his wife’s subscription, but that a corporation was later organized, and said corporation refused to issue the stock to his said wife, but converted the said Liberty bonds to its own use and benefit, to her damage in the sum of $5,000.

The defendant, appellant, answered by general demurrer and special exception that the plaintiff Ruth Caswell was not alleged tp have subscribed for any stock or contracted therefor, and that her petition did not allege when or to whom the Liberty bonds were delivered or with whom such understanding about their ownership was had, or whether such understanding was oral or written, nor the representative, officer, or agent of such corporation who made such agreement. Defendant, appellant, further answered by general denial, and specially denied all of plaintiffs’ allegations that it received Liberty bonds in payment for any stock subscription by or for Mrs. Ruth Caswell, and denied that it knew anything of her or any one for her ever having subscribed for said stock. Further answering, defendant, appellant, alleged that George Caswell subscribed for $5,000 of stock and paid one-half thereof with Liberty bonds, and that he having failed and refused to pay the other one-half of such stock subscription, his entire stock was forfeited, as provided by law; that his entire subscription in the sum of $5,000 was taken in his own. name, without any agreement with or concerning Ruth Caswell, and pleaded estoppel against Mrs. Caswell. Defendant, appellant, further alleged that no authorized agent or officer of ‘appellant made any such agreement with Mrs. Caswell. By cross-action, appellant sued George Caswell on a note executed by him in the surh of $2,500 payable to appellant, alleged to have been given for the unpaid portion of the alleged $5,000 stock subscription by him. •

Appellees, by supplemental petition, demurred generally to appellant’s answer and cross-action, and specially that it showed no equity and was barred by limitation. They denied all of the allegations of appellant’s answer, and alleged that the Liberty bonds delivered to appellant were taken by appellant with full knowledge that they were the property of and belonged to Mrs. Ruth Caswell and were not the property of George Caswell. They fully answered as to the cross-action against George Caswell.’

The cause was tried to a jury, and at the close of plaintiffs’ evidence, and again at the close of all the evidence, appellant moved for an instructed verdict in its favor, both of which were denied, and the cause was submitted to the jury on special issues, in answer to which the jury found: (a) That Georgé W. Caswell subscribed for 25 shares of stock for the benefit of his wife, Ruth Cas-well ; (b) that at the time of such subscription he informed the person who took said subscription that same was for the benefit of his wife, Mrs. Ruth Caswell; (c) that he at said time informed the person taking said subscription that same would be paid for with Liberty bonds belonging to Mrs. Ruth Cas-well ; (d) that said stock so subscribed for was actually paid for with Liberty bonds, belonging to Mrs. Ruth Caswell; and (e) that before said stock was forfeited by appellant, appellant knew that Mrs. Caswell was claiming that she owned the 25 shares of stock that had been paid for with her Liberty bonds. In answer to special issue A requested by appellant, the jury found that George Caswell did not subscribe for 50 shares of stock.

On the answers of the jury the court rendered judgment in favor of Mrs. Caswell against appellant for $2,500, with 0 per cent, interest from May 15, 1919, and that'appel'lant take nothing by virtue of its cross-action against George W. Caswell. Motion for a new trial was overruled, and appellant has brought this appeal.

By several propositions appellant complains that the court erred in not sustaining its general demurrer and certain special exceptions to plaintiffs’ petition. These propositions are overruled. We think the allegations of the petition are sufficient. -

Appellant’s contention that the court erred in refusing its motion for an instructed verdict because there was a fatal variance between the allegations of the plaintiffs’ petition and their proof, in that the petition al-. leged one state of facts and their proof showed an entirely different state of facts, is overruled. The allegations have support in the evidence.

By its sixth proposition appellant challenges the right of appellees to sue for the value of the bonds delivered in payment for stock, and insists that plaintiffs’ cause of action, if any they had, was for the stock or its market value, or for the. return of the bonds, and as there was no pleading therefor and no submission to or finding by the jury thereon, and no evidence as to the value of anything but the bonds, the judgment is erroneous. This contention cannot be sustained. It is well settled that where one subscribes for stock in a corporation and pays the price of same, and the corporation fails or refuses to deliver to the purchaser his certificate of stock, an action in assumpsit at law will lie against the corporation to recover the consideration paid. 14 C. J. 486; Ferrell v. Millican (Tex. Civ. App.) 156 S. W. 230; Watkins v. Record Photographing Abstract Co., 76 Or. 421, 149 P. 478; Kinser v. Cowie, 235 Ill. 383, 85 N. E. 623, 126 Am. St. Rep. 221; Swazey v. Choate Mfg. Co., 48 N. H. 200; Wood v. Universal Adding Machine Co., 166 Ill. App. 346. The record discloses that promoters of appellant solicited George AV. Caswell to subscribe for stock, and that he did subscribe for 25 shares of the par value of $2,500. Later he was again solicited, and, as found by the jury, subscribed for 25 more shares, these for his wife, Ruth Caswell, to be paid for in Liberty bonds at (heir face value; that Liberty bonds in the sum of $2,500 belonging to Mrs. Caswell were delivered to appellant and accepted by appellant in payment for said 25 shares of stock, with knowledge that same was for the benefit of Mrs. Caswell, and that said stock so paid for belonged to her. Later, appellant contending that the two subscriptions for 25 shares each constituted a subscription by George W. Caswell for 50 shares, and that said Liberty bonds were to be applied in payment for one-half of said subscription, and Cas-well having failed to pay the balance of his subscription, appellant forfeited all of said1 stock and refused to recognize Mrs. Caswell as the owner of any of said stock, or that she had any right or claim thereto. The jury found that at the time of said forfeiture, and prior thereto, appellant knew that Mrs. Cas-well was claiming that she was the owner of 25 shares of stock that had been paid for with her Liberty bonds. The jury also found that George W. Caswell did not subscribe for 50 shares of stock. None of these findings are attacked by appellant as being without support in the evidence. Under these facts, ap-pellees were entitled to maintain their suit.

Appellant’s objection to and criticism of special issues Nos. 3 and 5 are not well taken #and are overruled. *

* Appellant’s tenth and eleventh propositions, complaining of the admission of certain evidence, are overruled.

We now come to appellant’s contention that there being no pleading or legal evidence as to the market value of the Liberty bonds, and no submission to or finding by the jury thereon, under the facts, the judgment against appellant for $2,500 and interest is erroneous and excessive. No issue as to the market value of the bonds was submitted to the jury, and the court in his judgment does not find the market value of same, unless the fact that he rendered judgment for their par value is such finding, and, if so, then it is not supported by the evidence, for there is no evidence that thesé or any of the many other Liberty bonds taken in payment for stock by appellant sold for par, but, to the contrary, the evidence is that they all sold for less than par. Appellees insist that, as appellant contracted to and did accept said bonds at par in payment for stock, that established their actual value, and that they are entitled to judgment accordingly. Where the officers of a corporation refuse to issue a certificate of stock to a person entitled thereto, he has a remedy by action against the corporation for damages as for a conversion of the stock, or he may sue in equity for specific performance to enforce the issue and delivery of the stock certificate and the payment of any dividends that may be due thereon, or he may, as plaintiffs have here done, sue to recover the consideration paid for the stock. This not being a suit for the enforcement of the contract, appel-lees cannot claim the benefit of any of the terms of the contract. This is a suit for the conversion of the bonds, and the rule is well established that in suits for conversion of property the recovery must be for its market cash value at the time of the conversion. Appellant’s president, R. C. Miller, who was also a prominent promoter in securing subscriptions for the stock of and in organizing the appellant corporation, testified that he did not know for what amount the bonds of Mrs. Caswell were sold, but that appellant sold many such bonds taken for payment of stock, and that none of them sold for par, but that all of them sold for less than par, some for 12½ per cent, discount and others for “less tnan 12½ per cent, discount.” We think the court erred in rendering judgment for the par value of the bonds. This would cause a reversal and remanding of the case for the purpose of establishing the market value of the bonds at the time of their conversion, May 15, 1919; but appellees, in the presentation of the case on submission, stated that if the court should hold that they were not entitled to recover the par value of the bonds, rather than have the delay and cost of another trial they asked the court to reform the judgment giving them judgment for the lowest value for which any of the bonds were shown to have been sold, to wit, 87½ cents on the dollar, and as that was the lowest price for which any of the Liberty bonds was shown to have been sold, we accede to that request and here reform the judgment so that appellees recover judgment against appellant for the $2,-500 worth of bonds at the rate of 87½ — 12½ per cent, discount — amounting to $2,187.50, together with interest thereon at the rate of 6 per cent, per annum from May 15, 1919, the date said bonds were delivered to and ac-cépted by appellant. The costs of this appeal are taxed against appellees.

Reformed and affirmed.

HIGHTOWER, O. J. I agree with the disposition made of this appeal as reflected by the opinion of Mr. Justice O’QUINN. I do not feel sure, however, that under the facts of this particular case the burden rested upon the appellees to make proof of the market value of Mrs. Caswell’s Liberty bonds at the time they were converted by appellant. I do not disagree with the statement in the opinion of Mr. Justice O’QUINN that as a general rule a plaintiff suing for the conversion of property has the burden of proving the market value, if any, of the property at the date of its conversion by the defendant, hut I do entertain some doubt as to whethei- that burden rested upon the plaintiffs in this ease, and am rather inclined to the opinion that the appellees here made a prima facie case for recovery of the value of Mrs. Caswell’s Liberty bonds, at the date they were delivered to appellant with the understanding and agreement between the parties as to the value of the bonds and that appellant would issue stock in its corporation in payment for the bonds. I do not desire to-go into further detail in this matter, but merely wish to reserve my views on this question at this time.


author: PELPHREY, C. J.

text:
    STEVENS v. WAFER.
    (No. 2234.)
    Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1929.
    Rehearing Denied March 7, 1929.
    Armstrong & Morrow, of El Paso, for appellant.
    C. M. Wilchar, of El Paso, for appellee.
   PELPHREY, C. J.

Appellee sued appellant in the county court at law of El Paso county, Tex., for the sum of $600 damage’s alleged to have arisen by the failure of appellant to have issued to appellee, in some insurance company represented by appellant, a policy, on a house'belonging to appellee near Port Hancock, Tex., as he had agreed to do.

■ Appellant answered by general demurrer and general denial, and interposed the following special exception: “Defendant especially excepts for the reason that said petition does not allege that if said insurance had been procured, that under the terms thereof said insurance policy would have covered the loss which plaintiff sustained, in that it does not undertake to allege the terms of the contract which defendant was to procure from his undisclosed principal.”

And for the further special reason that said petition does not allege that said policy was for any specified term, or that the policy ordered was to be in force .on January 1, 1928.

The general demurrer and special exceptions were overruled by the court.

The case was submitted to a jury upon one special issue, and that issue having been answered by the jury favorable to appellee, judgment was rendered in his favor for $600, less the sum of $15.72, premium on the policy ordered. Mr. Stevens has appealed from that judgment.

Opinion.

Appellant presents three propositions upon which he seeks a reversal, but they all being directed to one question of law, we will consider them, as has appellant, together.

The sole question involved in the appeal is whether appellee, without alleging and proving that he could have recovered under the insurance contract which should have been procured for him by appellant, can recover damages against appellant for failing to pro-curo the contract.

While it has been held in this state that in an action on a policy of fire insurance, a petition which does not set out the terms of the policy is demurrable, Commercial Union Assurance Oo. v. Dunbar, 7 Tex. Oiv. App. 418, 26 S. W. 628, we do not think that the same rule is applicable to the case under consideration.

The record shows that appellant represents eight or nine different fire insurance companies, and it is entirely possible that they each issue a different kind of policy. Appellee has no way of knowing with which company appellant intended to place his insurance, and consequently, if it be true that the policies are not uniform, it would be impossible for appellee to allege what the terms of the intended policy would have been if it had been issued.

If we understand the nature of appellee’s cause of action, it is for damages for a breach of contract to insure his property in one of the companies represented by appellant.

He has alleged the contract and its- breach and is claiming damage for that breach, and that but for appellant’s breach of contract ap-pellee would have had a valid and subsisting policy of fire insurance on his buildings in the additional sum of $G00 in one of the companies represented by appellant.

We think that appellee has alleged a good cause of action, and that appellant, if the loss occurred under conditions which would relieve his companies, or any of them, from liability, or have prevented appellee from recovering for the loss, should have alleged and proved those facts.

It has repeatedly been held in this state that the burden is upon the insurer to prove insured’s breach of conditions in the policy, and that the plaintiff need only prove his insurance and his loss under it. Hartford Fire Insurance Co. v. Watt (Tex. Civ. App.) 39 S. W. 200, error refused; St. Paul Fire & Marine Insurance Co. v. Easter (Tex. Civ. App.) 187 S. W. 969; German Insurance Co. v. Cain (Tex. Civ. App.) 37 S. W. 657; Sullivan v. Hartford Fire Insurance Co. (Tex. Civ. App.) 34 S. W. 999, error dismissed; Allemania Fire Insurance Co. v. Fred, 11 Tex. Civ. App. 311, 32 S. W. 243, error dismissed; Northern Assur. Co. v. Applegate (Tex. Civ. App.) 145 S. W. 295. And we think that appellant, if there had been such a use of the premises by appellee as would have prevented his recovery, as suggested by appellant in his brief, would have had the burden upon him to allege and prove that use.

We have found no case in this state holding what the requisites of a petition are in an action of this character, but we feel that this being an action for a breach of contract to secure additional insurance for ap-pellee, and he having-alleged the contract, its breach, and that his property was destroyed by fire, and that he was damaged in the amount of the additional insurance contracted for by said breach, his petition states a good cause of action as against both the general and special demurrer.

Appellant also claims that the petition was insufficient because it failed to allege that had the insurance policy been procured, he could have recovered $600 on it.

As said before, the petition alleges that but for appellant’s breach of his contract to procure the insurance, appellee would have had a valid and subsisting policy of additional insurance for $600, and we are unable to see what more appellee might or could have alleged.

The whole case in the trial court seemed to be whether there had been an agreement to procure the additional insurance by appellant or not, and the jury having found that issue adversely to him, we see no reason to disturb the judgment based thereon, and it is affirmed.