text:
    LOZANO v. STATE.
    No. 20923.
    Court of Criminal Appeals of Texas.
    March 13, 1940.

      W. B. Barbour and Edward Hargrove, both of Cotulla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted of assault with intent to murder without malice one Pablo Benavidesand his punishment assessed at two years in the penitentiary.

No bills of exception are brought forward. The sufficiency of the evidence to support a verdict of assault to murder is challenged. This is the only question in the case.

Felipe Anchando, the main State’s witness besides Benavides, figures largely in the transaction. We gather from the evidence that both Anchando and Benavides were friends of appellant. The record reflects that there had been no previous trouble between appellant and either of the parties named. Benavides worked in a place where beer was sold; Anchando entered the place and Benavides invited him to have- a bottle of beer. About this time appellant came into the back door and he insisted on paying for the beer, but was told by Anchando that it had already been paid for. Apparently appellant became offended because he was not permitted to pay for the beer, and invited Anchando outside, saying he (appellant) wanted to talk. An-chando set his bottle on the counter and went outside. Appellant cursed him and a fist fight ensued which Anchando apparently got the better of. Benavides went out the back door to find out what had become of Anchando. Appellant got possession of a hoe with which he struck Bena-vides one blow, cutting his arm. He made no effort to strike Benavides again, but turned his attention to Anchando. The wound inflicted on Benavides was so slight that no medical attention was sought until the second or third day after receiving it, at which time- Benavides went to San Antonio to seek medical advice for some other ailment. The wound had become inflamed to some extent and the doctor then treated it. We have no further description of the wound than as indicated. The only description of the hoe found in the record is that it was “above the average weed hoe.” No proof was made as to its weight or as to its probable effect when used as a weapon to strike with.

It is insisted by appellant that the weapon here used was not shown to be a deadly weapon, nor that the wound inflicted was serious, and, therefore, that the evidence fails to show an assault with intent to murder.

For support of the principle urged, we are referred to Branch’s Ann.Tex.P.C., Sec. 1661, and cases there cited; also to the following authorities. Fregia v. State, 79 Tex.Cr.R. 334, 185 S.W. 11; Hunt v. State, 94 Tex.Cr.R. 155, 250 S.W. 168; Jones v. State, 116 Tex.Cr.R. 30, 28 S.W.2d 146; Dodd v. State, 134 Tex.Cr.R. 26, 113 S.W.2d 540; Sofge v. State, 133 Tex.Cr.R. 409, 111 S.W.2d 720. While the proposition relied on by appellant has frequently been upheld as a guide for determining whether an assault was committed with intent to murder, the same is not always a true criterion. The facts may show that an accused had a most serious intent to kill but that the weapon at hand was ordinarily inadequate for the purpose. Under such circumstances the following cases have application: Basquez v. State, 114 Tex.Cr. R. 602, 26 S.W.2d 206, and authorities therein cited; Rose v. State, 123 Tex.Cr.R. 261, 58 S.W.2d 526; Bailey v. State, 123 Tex.Cr.R. 206, 58 S.W.2d 834. Under the authorities last cited, whether or not the hoe used by appellant was a deadly weapon if it was possible to inflict death with it, and appellant intended to take the life of Benavides, he might be guilty of assault with intent to murder. The evidence, however, fails to impress us as being sufficient to exhibit an intent to kill. The blow was so slight that the wound inflicted was not thought by Benavides to amount to anything. He testified: “I didn’t think it a bad cut,” and when it was treated by the doctor, he was 'consulted about another matter and gave no evidence as to the character of the wound. The evidence shows that appellant did not follow the one blow with any further effort to inflict injury upon Benavides.

While this court is always hesitant to disturb the verdict of the jury, circumstances are sometimes presented where it becomes our duty to do so, as apparently was anticipated by the Legislature in the enactment of Article 848, C.C.P., which provides: “The Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts. A cause reversed because the verdict ' is contrary to the evidence shall be remanded for new trial.”

For the reasons indicated, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: CHRISTIAN, Judge. BEAUCHAMP, Judge, HAWKINS, Presiding Judge.

license: Public Domain

text:
    WALKER v. STATE.
    No. 20732.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    On Motion to Reinstate Appeal Feb. 21, 1940. Rebearing Denied March 27, 1940.
    Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is operating an open saloon; the punishment, a fine of $250.

The caption fails to disclose the date of the commencement of the term of court at which appellant was tried. .See Cane v. State, 91 Tex.Cr.R. 500, 239 S.W. 948.

The appeal is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

BEAUCHAMP, Judge,

The appeal in this case was dismissed because the caption failed to disclose the date of the commencement of the term of court at which the appellant was tried. By proper procedure, the record has been corrected and a motion filed to reinstate the appeal.' The motion is granted and the case is herein considered on its merits.

An employee of the Texas Liquor Control Board appeared at the Crystal Cafe in the city of Brownwood on April 1, 1939, at about 12:45 P. M., together with a companion, and each ordered a sandwich. After .receiving the sandwich, for which they paid J. M. Austin, they asked him if he could get them something to drink. He agreed to do so and took them in the back part of the cafe where Shelby Walker, the appellant, was instructed by the said Austin to give them anything they wanted. The witness then asked Walker for a drink of whisky, which he furnished them, and then they wanted to buy a half pint of whisky. He got a pitcher and poured a half pint of whisky out of it into a bottle, stopped it up and handed it to them. The witness handed Walker a $5 bill which he took to Austin and brought back the change. They paid fifteen cents each for the drinks and seventy-five cents for the half pint of whisky. The witness then left, and after labeling the bottle, turned it over to the deputy sheriff. This bottle with its contents was introduced in evidence.

It was admitted that the Local Option Law was in effect in Brown County and that the county was a dry area on April 1, 1939.

Irene Alexander, an employee of the Crystal Cafe, testified in behalf of the appellant that she, and no other person, waited on the witness and his companion, whom she identified as Hubert Knight, saying that she took the $5 bill and got the change; that they paid for the sandwiches. She denied that any liquor was sold to the witness or that Shelby Walker was working on that date. She detailed that Walker told her the night before that he was going to Mills County. The wife of Shelby Walker was also placed on the witness .stand and testified that her husband went to Mills County on April 1, 1939, leaving at five o’clock in the morning, for the purpose of aiding her father to round up some sheep. She also said that she went there in the afternoon and found her husband at her father’s house in his work clothes. She offered to testify also as to statements made by her husband to the effect that he had been there during the day and what he had been doing. This testimony was excluded.

The representative of the Texas Liquor Control Board testified that he did not know the companion who was with him and " could not give his name. As above stated, Irene Alexander identified him as Hubert Knight, but he was not called as a witness by either the State or by the defense. Neither did the defendant testify in his own behalf.

The questions of fact, sufficient to make a case, were testified to by the representative of the Liquor Control Board and these facts were denied by two witnesses for the appellant. The jury passed on the questions of fact adversely to the appellant.

There are several bills of exception presented in the record, the first of which complains of the refusal of the court to instruct a verdict in favor of the defendant. This raised an issue as to whether or not the evidence is sufficient to warrant the jury in finding the defendant guilty. We conclude that the evidence is sufficient. Bill No. 1 is therefore overruled.

Bill of Exception No. 2 complains of the remarks of the County Attorney and sets out the following language used in his closing argument: “The sheriff and county attorney would not prosecute this defendant if he were innocent.” This statement would raise a serious question under some state of facts, but the judge, in approving the bill, appended thereto the following qualification: “It is the recollection of the court that the county attorney in closing his argument stated to the jury that the case was in their hands and that neither he nor the sheriff had any desire to prosecute the defendant if he is not guilty.” Under the foregoing qualification, which was not excepted to by the appellant, no error appears. It is perfectly proper for the prosecuting attorney to say that neither he nor anyone else desires to prosecute any man if he is not guilty. Appellant vigorously attacks this qualification before this court in his brief but unfortunately the record does not disclose that the qualification was excepted to at the time it was made. Therefore, under the rules, the accepted bill shows no error and is overruled.

Bill No. 3 complains of the action of the prosecuting attorney in passing to the jury the bottle of whisky introduced in evidence and permitting them to smell of the bottle. There is no denial as to the nature of the contents of the bottle, as stated in the bill, and therefore the act, if objectionable, became harmless.

Bill of Exception No. 4 complains of the ruling of the court in refusing to permit the appellant’s wife to testify to the things her husband said to her in Mills County late in the afternoon of April 1, 1939, that being the date on which the offense is alleged to have been committed. She was attempting to prove an alibi, and the statement which the appellant made to her at that time was unsworn and would have been selfserving. It was hearsay testimony from this witness. We are not able to understand any theory upon which it would have been admissible.

Bill of Exception No. 5 complains of the action of the court in excluding the testimony sought to be elicited from the witness J. M. Rich, on cross-examination, dealing with the name of the companion who visited the Crystal Cafe with him and details as to where the witness went and how long he stayed at other places during the day. This evidence was excluded on the ground that it was immaterial testimony. Under the circumstances of the case, the bill fails to disclose any importance in this evidence to the appellant, and we think the court properly excluded it.

No error being found in the record, the judgment of the trial court is -affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant urges that the language used by the prosecuting attorney was objectionable as conveying to the jury the opinion that both said attorney and the sheriff believed appellant to be guilty. There is nothing in the record to indicate that either, of said officers had any knowledge of the case save as gathered from the evidence.

In Marinkovich v. State, 96 Tex.Cr.R. 59, 255 S.W. 734, 735, we quoted with approval from Young v. State 19 Tex.App. 536, as follows: “ While it is true that authors in treating upon this subject say that counsel either for or against the prisoner should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment because of a violation of this rule.’ ”

As supporting the holding we cited Kennedy v. State, 19 Tex.App. 618; Spangler v. State, 42 Tex.Cr.R. 233, 61 S.W. 314; Hawkins v. State, Tex.Cr.App., 71 S.W. 756; Hinton v. State, 65 Tex.Cr.R. 408, 144 S.W. 617. We refer now to the following additional authorities. Ball v. State, Tex.Cr.App., 78 S.W. 508; Jackson v. State, 118 Tex.Cr.R. 443, 42 S.W.2d 433; Stalcup v. State, 130 Tex.Cr.R. 119, 92 S.W.2d 443.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    SIMPSON v. STATE.
    No. 20661.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    Rehearing Denied March 20, 1940.

      C. E. Smith, William H. Scott, Percy Foreman, and L. R. Renfrow, all of Houston, for appellant.
    W. L. Cook, Asst. Cr. Dist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This is an appeal from the judgment of the County Court of Harris County finding appellant guilty of using violent means to induce a confession; penalty assessed at a fine of $200 and confinement in the county jail for 30 days.

Several issues are brought to this court, one of which involves the jurisdiction of the County Court over the offense alleged. The determination of that issue turns upon the question of whether or not a policeman of a city is a public official and-upon the further question as to whether or not the conduct alleged was “official misconduct”.

It is held by the authorities in Texas that a city has the right to pass ordinances creating the office of policemen and that when they are so created they become officers of the State. It has also been held, not only in this state but in other jurisdictions, that a policeman is a public official. See Whitfield v. Paris, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783, 31 Am. St.Rep. 69; Givens v. Paris, 5 Tex.Civ. App. 705, 24 S.W. 974; Ex parte Preston, 72 Tex.Cr.R. 17, 161 S.W. 115, 116. In the case last mentioned this court quoted from 28 Cyc. 487, as follows: “A policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city.”

The next question for consideration is whether or not the acts testified to by the prosecuting witness and relied upon by the State are such as to constitute “official misconduct”. The prosecution is based upon Art. 1157, Penal Code 1925, which reads as follows: “Any * * * policeman, or any other officer having under arrest or in his custody any person as a prisoner who shall torture, torment or punish such person by inflicting upon him any physical or mental pain for the purpose of making or attempting to make such person confess to any knowledge of the commission of any offense against the laws of this State, shall be fined not less than one dollar nor more than one thousand dollars or be imprisoned in jail not to exceed one year, or both such fine and imprisonment,” etc.

The prosecution was first instituted in the District Court but was by order removed to the County Court where the trial was had. The prosecuting witness, Robert Lyons, testified that he had been taken in custody by the police of the city of Houston and carried to the city jail. At the time of the incidents upon which the prosecution is based, M. M. Simpson, the appellant, was occupying the position of senior captain of detectives and occupied an • office on the third floor of the police station. Lyons was brought to the appellant’s office and there, according to the State’s testimony, he was beaten and badly bruised in an effort to force him to confess to the commission of a robbery which had taken place at a certain rooming house in the city. The appellant was acting within the scope of his official duties in receiving from Lyons such confession as he desired to make. However, if he used force and abuse as testified to by Lyons to compel him to do so, there would be no difficulty in recognizing it as “official misconduct”. That being true, even though the case be a misdemeanor, the jurisdiction to try it is lodged in the District Court under Art. 5, Sec. 8, of the- Constitution of Texas, Vernon’s Ann.St.Const. This being the holding of the court, it follows that we are presently without, jurisdiction, to consider the case or any other question involved in it other than to reverse the case and direct that it be transferred to the District Court of Harris County for further orders, which is accordingly done,

On Motion for Rehearing

HAWKINS, Presiding Judge.

Through the Assistant District Attorney of Harris County, the State has filed a motion for rehearing predicated on the contention that the County Court has concurrent jurisdiction with the. District Court in cases involving official misconduct.

Article 5, Section 8 of our State Constitution, Vernon’s Ann.St., reads in part: “The District Court shall have original jurisdiction in all criminal cases of the grade of felony; * * * of all misdemeanors involving official misconduct ;* *

Article 5, Section 16, reads in part: “The County Court shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the Justices Court as the same is now or may hereafter be prescribed by law * * *in

We are also cited in the State’s motion to Articles 54 and 56, C. C. P., and to a number of cases which state the rule as to statutory construction. They are interesting, but we think it unnecessary to go beyond our own court to solve the question under consideration. In Watson v. State, 9 Tex.App. 212, this court in effect construed the Constitution and the statutory provisions as now insisted upon by the State. The Watson case was decided in 1880. The next year the same question was again before the court in Hatch v. State, 10 Tex.App. 515, and the holding in Watson’s case was expressly overruled on the point here involved. We quote from the opinion in Hatch’s case as follows:

“In our opinion the language of the Constitution, as follows: ‘The District Court shall have original jurisdiction in criminal cases of the grade of felony; of all suits in behalf of the State to recover penalties, forfeitures and escheats; of all cases of divorce; in cases of misdemeanors, involving official misconduct, as well as suits for slander and suits for the trial of title to land and the other matters of jurisdiction mentioned in sec. 8 of the judiciary article of the Constitution (article 5), is too plain to admit of or require construction or interpretation. By this section suits for the trial of title to land, suits for divorce, and criminal cases of the grade of felony are all placed in the-same category as cases of misdemeanors involving official misconduct. The jurisdiction as to one is the same as the others, and is as exclusive in the one as the others. The provision of section 16, article 5, which gives to the County Court ‘original jurisdiction in all misdemeanors of which exclusive original jurisdiction is not given to the justice’s court, as the- same are now or may be hereafter prescribed by iaW) and when the fine to be imposed-shall exceed two hundred dollars,’ must be held to relate to other misdemeanors- than such as involve official misconduct, for the reason that jurisdiction of this class of misdemeanors is conferred by name on the District Court.”

The State’s motion resolves itself into a request for us to overrule the Hatch case. A conviction for an offense involving “official misconduct’’ is so far reaching in its consequences that the framers of our Constitution may well have considered the result and for that reason their wisdom lodged jurisdiction to try such offenses in the District Court,

We are inclined to adhere to the announcement in Hatch’s case,

The motion for rehearing is overruled,


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    KING v. STATE.
    No. 20841.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Denied March 20, 1940.
    Application for Leave to File Second Motion for -Rebeari'ng Denied April 3,1940.

      Percy Woodard, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of cattle theft, and by the jury assessed a penalty of six years in the penitentiary.

There are no bills of exception in the record. The statement of facts shows sufficient facts upon which the jury could have their verdict of guilt. The indictment appears to be sufficient, and all proceedings appear to be regular.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant reiterates his contention that the evidence is insufficient.

Mrs. Jim Mobley testified that on the 7th day of November, 1938, she lost one head of cattle from her pasture; that when she discovered that the animal was missing she called the officers; that in response to her call the sheriff and one of his deputies came to her home; that she and the officers went to appellant’s home; that they found tracks leading from the home of the appellant to a point 300 yards from the cow pen of the witness; that at the point last mentioned they found where a cow had been butchered; that they also discovered tracks going from the point where the cow was butchered to appellant’s home; that one of the officers carried appellant to the place where the butchered animal was found and placed his feet in the tracks; that the tracks fit appellant’s feet; that appellant had blood on his back dt the time he was brought to the place where the animal had been butchered; that witness did not give appellant nor anyone else permission to take her yearling.

The sheriff testified to having gone with Mrs. Mobley to the place where the animal was butchered. We quote from his testimony as follows: “We went down around the edge of the pasture or field there, possibly 250 or 300 yards from the house, and found where the yearling had been butchered and we found the wire fence torn down, and out in the woods there found the hide, head and feet. We found where the yearling had been butchered. We came back and tracked the party, where the party came to where the yearling was butchered, and came then across the field to Lonnie King’s (appellant’s) house. We then arrested Lonnie King and put him in jail. I did something in relation to the tracks we found, we put his shoe or track in the same tracks and the tracks fit and I found some blood on the back of his jumper. We recovered part of the yearling later, some of the meat. He sold it for four dollars and got one dollar on it from a negro at the brick plant. I got the information that a party had hauled it in, and he told me where the meat was at. I tracked the track from where the calf was butchered through these woods to a fence row where he laid it on some brush on a croca sack. Lonnie King told me that he put the meat on the old fence row the night before. From the information I got from Lonnie King I recovered the meat.”

John Jones, a witness for the state, testified that on the 7th of November, 1938, he bought part of a beef from appellant. On cross-examination he said: “I don’t know where I saw you (referring to appellant) on the 7th day of November, 1938, but I saw you when you brought the yearling over there, when you sold me part of the yearling.”

Appellant testified on his direct-examination as follows: “The way that was this Isaac Taylor come and got me that evening about dusk dark. He came and got me then; he had been giving me whiskey all the time. He come and got me and said he had a drink for me and I said ‘All right.’ I went to the house with him. When we got to the house he said ‘You want to walk around some?’ We had drank nearly a pint. We walked down there and two more boys had the yearling down and skinned nearly, the car setting on the side of the road. We drank some more down there. They said, ‘Cut him up.’ Said ‘Help carry this.’ I went back to the car with them. They got in the car and went on and I came back across the field to the house. That is the way it was.”

On his cross-examination appellant denied that he had sold John Jones any meat

We have set out and referred to substantially all of the testimony adduced upon the trial. We deem such testimony sufficient to support the judgment of conviction.

The motion for rehearing is overruled.

PER CURIAM.

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


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

text:
    FAULKNER v. STATE.
    No. 20729.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    On Motion to Reinstate Appeal Feb. 21, 1940.
    : Rebearing Denied March 27, 1940.

      Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, a fine of $100 and confinement in jail for six months.

The transcript hears a caption which shows that the court adjourned on the 23rd day of June, 1939. It appears from the file mark on the charge of the court and the date of the judgment of conviction that the trial was had on the 24th day of June, 1939, which, according to the caption, was in vacation. Also the caption fails to show the date of the commencement of the term at which appellant was tried. Under the circumstances, we are constrained to dismiss the appeal. See Williams v. State, 113 Tex. Cr.R. 219, 18 S.W.2d 654.

' The' appeal 'is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

•KRUEGER, Judge.

On a former day of this term of court, we dismissed the appeal in this case by reason of a defective record. Since then the record has been perfected. Therefore, the appeal is reinstated and the case will now be disposed of on its merits.

Appellant’s main contention seems to be that the evidence is insufficient to justify and sustain his conviction of an aggravated assault, in that the proof fails to- show that serious injury was inflicted upon the assaulted party. The salient facts proved relative to the extent of the injury are in substance as follows:

George Bradley, the injured party, testified that appellant and three companions appeared at his garage one Sunday night and started an argument with him about some repair work that he had done on appellant’s car. This lead to some abusive language and finally precipitated a fight. Bradley testified that he had a hammer in his hip pocket; that he felt it leave his pocket and something struck him on the head. He fell paralyzed to the ground and was hit again, but then lost consciousness. The next he remembered, he was parked beside the hospital. He walked into the hospital and was treated for his injuries. Dr. Allen, who administered to the injured party, testified in substance as follows: “He had two injuries on his head — two scalp wounds. * * * One is a long laceration on the right hand side of the top of his head * * 4 to 6 inches long. The wound * * * on top of his head had a center and radiating in several directions were lacerations. I was able to pull back the flap of the skin * * * I found that it was a fracture of the skull, a little bit half-mooned in shape. I think that hammer or some similar instrument could have caused that wound. * * I think a wound of that nature could have been associated with danger. * * * The danger from such wound is that of concussion of the brain * * * and might cause paralysis. That usually sets in immediately, but is possible to set in later. My opinion is he is not going to have very much trouble with it, but it is possible he might have some delayed reactions or delayed injuries,”

A city policeman who arrived on the scene soon after the difficulty had terminated testified that he found Bradley lying on the ground unconscious. That blood was flowing from his head, nose and mouth. That he was in no condition to walk to the hospital by himself. Appellant plead self-defense. Can it be said as a matter of law that a blow on the head with a hammer or an instrument of like kind, which fractures the top layer of the skull and causes the blood to flow from the nose, head and mouth, is not a serious wound? We think not under the holdings of this court in the cases of Housley v. State, 55 Tex.Cr.R. 372, 116 S. W. 816; Fulkerson v. State, 57 Tex.Cr.R. 80, 121 S.W. 1111; Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103. See, also, the case of Buie v. State, 128 Tex.Cr.R. 654, 83 S.W.2d 346, where the authorities are collated by Judge Hawkins and the question fully discussed. It occurs to us that the question of whether the wounds inflicted were such as constituted serious bodily injury was a question for the jury to determine from all the evidence in the case. We have carefully examined the authorities cited by appellant in support of his contention. In those cases the state failed to show that the wounds were of a serious nature. See Head v. State, 52 Tex.Cr.R. 488, 107 S.W. 829 and Lewis v. State, 103 Tex.Cr.R. 82, 279 S.W. 819.

Bill of exception number one reflects the following occurrence: While Dr. Allen was testifying as to the nature of the wounds on the head of the injured party, he was asked by the County Attorney whether or not the wound on the head of George Bradley was a wound which was attended with danger, to which Dr. Allen replied in the affirmative. He was then asked whether it would be considered painful and whether it was painful, which questions he also answered in the affirmative. Appellant objected to such questioning because the questions were leading and were incompetent, irrelevant, immaterial, inflammatory and prejudicial.

The first question as to the nature of the wound was not leading and was admissible to show the nature and character of the wound, since the burden rested upon the state to show the same. The question as to whether or not the wound was painful, while perhaps not relevant, would not under these circumstances be the basis for a reversal. It is common knowledge that such a wound is painful. Moreover, appellant objected to testimony, a portion of which was clearly admissible. Such an objection to testimony has been repeatedly held too general to be considered. See Aven v. State, 77 Tex.Cr.R. 37, 177 S.W. 82; McKinney v. State, 80 Tex.Cr.R. 31, 187 S.W. 960; Davis v. State, 83 Tex.Cr.R. 539, 545, 204 S.W. 652; Branch’s Ann.P.C., Sec. 211, p. 135, and the authorities there collated.

By bill of exception number two, appellant complains because the County Attorney asked Dr. Allen how much more force it would have taken to have crushed the injured person’s inner skull. Dr. Allen replied that it was impossible for him to tell —that the inner skull is not quite as pliable as the outer and it would take less force to crush it than the outer part. Appellant objected because the question called for the conclusion and opinion of the witness and was incompetent, inflammatory and prejudicial. We are at a loss to understand how appellant suffered any harm from such manner of questioning. The doctor replied that he did not know the answer to such questions, but it would take less force to crush the inner skull. Moreover, testimony relative to the nature, size and seriousness of the wound was the most highly controverted issue in the case, the state being required to show its dangerous nature. See Smiley v. State, 87 Tex.Cr.R. 528, 222 S.W. 1108. Testimony relative thereto would appear to be admissible on this issue.

Bills of exceptions numbers 3, 4, and 5 are without merit.

No error of a reversible nature appearing, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant, in a very earnest motion for rehearing, presents as the main ground therefor that justice has miscarried in this case and appeals to the court to rectify the same. If it is an error of law, it is the duty of this court to correct it. The evidence is conflicting, and it is for the jury, not this court, to determine the true facts.

We have reviewed the record in the light of the motion for rehearing and have concluded that the matters of law raised were properly disposed of imthe original opinion.

The first question presented in the motion complains of the evidence that officers commanded’the appellant and others to hold up their hands and come out of the car when arresting them. The idea seems to be that this evidence indicated to the jury that they were bad men and had committed other crimes. We are unable to concur in this view or understand the theory upon which it might be so inferred.

The next question complains of the admission of the evidence of Miss Span in giving her opinion as to the seriousness of the wound inflicted or rather the possibility that it might be serious. This same testimony came from Dr. Allen, who testified for the State and whose testimony was admitted without objection.

The record does not corroborate the appellant in his contention that the doctor took the contrary position. The original opinion sets out the testimony of the doctor and properly reflects his testimony.

It is presented in arguing the case that the penalty assessed reflects the damaging effect of the testimony of the officers who arrested appellant. It is a severe penalty, hut when the nature of the injury as described is taken into'consideration, we do not feel that we should disturb the finding of the jury nor substitute our judgment for theirs in a case properly submitted to them.

Finding no error in the original opinion, the motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    HAMMOND v. STATE.
    No. 20927.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Myres & Myres, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was charged by complaint and information in the County Court of Johnson County with violations of the Liquor Laws of this State. In the first count, appellant was charged with possessing on the 4th day of July, 1939, whisky for the purpose of sale. In the second count he was charged with selling whisky to Robert H. Williams on the 15th day of July. In the third count he was charged with having in his possession on the 25th day of July, whisky and beer for the purpose of sale. It was also charged that Johnson County was dry area. Appellant was convicted on all three counts. On the first count he was- assessed a fine of $100; on the second count he was assessed 30 days in the county jail, and on the third count he was assessed 60 days in the county jail.

It appears from the record that on the night of July 3, police officers of the City of Cleburne observed the defendant driving an automobile across Cedar Street of said city. They followed him to his home and after he had driven into his garage, which was connected with his home, they searched his car and found some broken glass in a sack and a quantity of liquor on the bottom of the car. They mopped up about one-half gallon of it and placed it in a .container. At the time, the state offered to prove by the policeman what they discovered as a re-suit of the search of appellant’s car whilé in his garage, appellant objected thereto on the ground that the officers had no warrant for his arrest, nor for a search of his premises, and that evidence discovered as a result of said search could not be admitted against him. The officers admitted they had no warrant for his arrest or for the search of his premises or his car. We are of the opinion that appellant’s objection to the testimony relative to what they found as a result of the search should have been sustained and the admission of such evidence was error. See Waltrip v. State, 134 Tex.Cr. R. 202, 114 S.W.2d 555, Art. 727a, C.C. P., Vernon’s Ann.; Harbor v. State, 116 Tex.Cr.R. 306, 31 S.W.2d 650. In the case of Morris v. State, 115 Tex.Cr.R. 554, 27 S.W.2d 188, 189, this court speaking on a somewhat similar question said: “The right to search a house or habitation is controlled by the Bill of Rights (article 1, § 9, Constitution of Texas [Vernon’s Ann.St.]), and by the statutory provisions contained in * * * title 6, Code Cr.Proc., 1925 [art. 304 et seq.].”

See, also, Art. 666 — 20, Vernon’s Ann. P.C.

The inspector of the Texas Liquor Control Board was permitted to .testify that Mr. Carruth, Supervisor of the Texas Liquor Control Board in Fort Worth, told him to. go to Cleburne and purchase a pint of whisky from Edgar Hammond, the appellant. An objection was promptly interposed to this testimony on the ground that it was hearsay and a conclusion of Mr. Carruth. The objection was overruled and appellant duly excepted to the ruling of the court. It is obvious that this was clearly hearsay testimony and inadmissible. See Gorman v. State, 52 Tex.Cr.R. 24, 105 S.W. 200; Darnell v. State, Tex.Cr.App., 39 S.W. 370, Branch’s Ann.P.C. Sec. 1254 and authorities cited. The testimony of the agent that Carruth had information that appellant was selling whisky in Cleburne, which was dry territory, and had ordered the agent to go there and purchase whisky, was hearsay. The vice of this testimony permeated the trial of every count in the information and injuriously affected appellant, not only on the count charging an unlawful sale of intoxicating liquor, but on all other counts as well. This testimony, as well as that relating to what was discovered by the illegal search, all went to the jury for their consideration on all of the counts and injuriously affected appellant’s legal rights.

From what we have said it follows that the judgment as to all three counts must be reversed and the cause remanded.

PER CURIAM.

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


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    VOGEL v. STATE.
    No. 20746.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Rehearing Denied March 27, 1940.

      E. B. Simmons, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the. State.
   CHRISTIAN, Judge.

The conviction is for a violation of the Medical Practice Act, Vernon’s Ann.P.C. art. 741 et seq.; the punishment, a fine of $100 and confinement in jail for 10 days.

The evidence is sufficient to support the conviction.

It is appellant’s contention that the law is unconstitutional, his position being that the exemption from its provisions of those applying the “principles, tenets, or teachings of any church in ministering to the sick or suffering by prayer, without the use of any drug or material remedy,” renders the statute discriminatory. We think the holding of this court in Hoy v. State, 134 Tex.Cr.R. 226, 115 S.W.2d 629, and Allison v. State, 127 Tex.Cr.R. 322, 76 S.W.2d 527, is applicable to the present statute. In those cases we upheld the constitutionality of the Medical Practice Act. Under the circumstances, we are constrained to overrule appellant’s contention.

It is shown in bill of exception No. 4 that in argument to the jury the district attorney stated that appellant should have known that he was - required to have a license ta practice-■ medicine, as' many members of the Naturopathic Association of Texas,- described in the evidence, had registered certificates which had been eliminated from the records in a court proceeding brought by the Attorney General. It is also shown in the bill of exception that at the time these remarks were made by the counsel for the state that he held in his hand a medical register, many sheets of which had not been offered in evidence. Appellant contends that the argument had no support in the evidence, and that his objection to same should have been sustained. It is observed that the state introduced in evidence, without objection on the part of appellant, a petition against the district clerk of Bexar County praying that he be ordered to .strike from the records of his office, and- from the medical register thereof, many registrations which were not authorized by the Medical Practice Act, and that after a hearing the court required the clerk to cancel such registrations. The registration of appellant was among those eliminated from the medical register. We think that in view of the testimony the argument- of counsel for the state was warranted.

A careful examination of' the record leads us to the conclusion that reversible error is not presented.

■ The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The appellant denominates himself a naturopathic practitioner and says he has been for over thirty years. He is charged with having treated J. R. Elam, on or about the 30th day of September, 1938, for pay. It is admitted that appellant does not claim to be a physician or surgeon; nor does he possess a diploma from a medical college. He received his education at the Dr. Ludwig H-eil Institute, Berlin, Germany, from which he holds a diploma. He is also a graduate of the American School of Naturopathy of New York City. He had filed for record in Bexar County what purported to be a certificate granted by the Naturopathic Association -of Texas, a corporation. By. order of the court, the registration of this certificate was canceled on July 12, 1937. There is no appeal to this court from that order and none would lie. He possesses no license to practice medicine from the Texas State Board of Medical Examiners. The facts alleged were proved without controversy. The questions in his appeal were properly disposed of in the original opinion.

It is his contention that any school of medicine should be exempt under the Act of the 46th Legislature, 1939, being House Bill No. 148, Paragraph 9, Vernon’s Ann.P.C. art. 740. We do not think that this act is subject to the construction for which he contends. To do so would nullify all previous legislation on the subject and it is perfectly clear the Legislature had no such intention.

The appellant’s motion for rehearing has taken the form of an attack on the constitutionality of House Bill No. 148, supra. It is contended that it is in contravention of Section 31, Article 16 of the Constitution of Texas, Vernon’s Ann.St. Const.

We do not consider that this appeal may bring into question the constitutionality of that act, for if it is unconstitutional, still appellant has violated the law. If it be a valid enactment, it does not include the appellant. He is not in a position in this appeal to raise the question, and no opinion is herein expressed as to its constitutionality.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    BURT v. STATE.
    No. 20910.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for ten years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Bertie Y’Barbo by shooting him with a pistol.

Appellant was a deputy sheriff of Nacog-doches County. According to the testimony of the state, appellant sought to arrest deceased. Deceased would not submit to arrest but ran from appellant. Appellant followed him for some distance, ordering him to stop. When he failed to obey, appellant pulled his pistol and shot him.

Appellant testified that he fired toward deceased for the purpose of causing him to stop and that he had no intention of killing him. Further, it was appellant’s version that deceased was drunk at the time he sought to arrest him. We quote from appellant’s testimony: “I drew my gun to fire to the right of him. I didn’t intend to hit the boy at all. He hadn’t done nothing to me to try to kill him because I was a little officer down there. It wasn’t my intention to do that at all. My intention was to shoot kind of to the right of him and possibly stop him. I didn’t have any intention to hit the boy and kill him — nothing like that.”

The court submitted instructions covering murder with malice, murder without malice, the right of an officer to use reasonable force in effecting an arrest, and negligent homicide of the second degree. Also the court instructed the jury as follows: “If you believe from the evidence, or have a reasonable doubt thereof, that the defendant shot the said Bertie Y’Barbo by accident, and that he was not guilty of any negligence or carelessness, in doing so you will find the defendant not guilty.”

Appellant timely and properly objected and excepted to the charge of the court on the ground that it failed to submit to the jury his affirmative defense, it being his contention that the court should have instructed the jury to acquit him of murder if they had a reasonable doubt that he fired the shot in an effort to stop deceased, and had no intention of hitting him. We think this charge should have been given. If appellant’s testimony on the point had been believed he would have been entitled to an acquittal of the charge of murder. See Rodriguez v. State, 109 Tex.Cr.R. 278, 4 S.W.2d 52. The court’s charge on accidental homicide was not sufficient to present appellant’s affirmatiye defense to the charge of murder, in that it was calculated to lead the jury to believe that appellant could be held guilty of murder if he was negligent and careless in discharging his pistol. As we view the record, the issue of accidental homicide was not in the case. If it had been the charge of the court should not have been trammeled by conditions requiring the jury to find that negligent homicide was not in the case before they could acquit appellant of murder on the accidental theory. See McPeak v. State, 80 Tex.Cr.R. 50, 187 S.W. 754. Where the evidence raises the defensive theory in an affirmative way it is incumbent upon the court to submit it. Rodriguez v. State, supra.

The judgment of the court is reversed and the cause remanded.

PER CURIAM.

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


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    McDONALD v. STATE.
    No. 20806.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Rehearing Denied March 20, 1940.

      Oscar B. Jones and J. H. Broadhurst, both of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The conviction is for an aggravated assault; the punishment, a fine of $100.

The prosecution proceeded under Art. 1149, P.C., which reads as follows: “If any driver or operator of a motor vehicle or motorcycle upon the public highways of this State shall wilfully, or with negligence, as is defined in this title in the chapter on negligent homicide, collide with or cause injury less than death to any other person upon such highway, he shall be held guilty of aggravated assault and shall be punished accordingly unless such injuries result in death, in which event he shall be dealt with under the general law of homicide.”

The charging part of the complaint and information at the time such pleadings were filed was as follows: That W. L. McDonald “did then and there drive an automobile upon a public highway of this state, to-wit, highway 80 and did then and there commit an aggravated assault in and upon the person of Mrs. B. D. Jackson by then and there wilfully and with gross negligence colliding with and causing injury to the person of the said Mrs. B. D. Jackson, who was then and there upon said highway.” (Italics ours.)

As shown in bill of exception No. 1, prior to announcing ready for trial, counsel for the state requested and was granted the permission of the court to amend the complaint and information by striking out the word “gross” before the word “negligence” in the body of the complaint and information. The amendment was made over appellant’s objection, and the question is properly presented to this court for review.

In the Revised Penal Code of 1925, Art. 1149, the word “gross” before the word “negligence” was omitted. Apparently, in taking the complaint herein, the counsel for the state failed to note the change in the statute. In Carlton v. State, 120 Tex.Cr. R. 12, 48 S.W.2d 273, this court called attention to the fact that the complaint in that case alleged gross negligence. Upon reversing the case upon another ground the court held that if the state relied upon negligence it would be incumbent upon the trial court to define gross negligence in the charge, inasmuch as gross negligence had been' alleged in the complaint. We think it is clear that the trial court permitted counsel for the state to alter a matter of substance in the complaint. Art. 533, C.C.P., reads as follows: “Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”

In Patillo v. State, 3 Tex.App. 442, this court used language as follows: “Clearly the court had no right to amend, or permit any one else to amend, the affidavit. Affiant himself could not have done so without being sworn anew as to the amended statement. Whenever the court permitted the county attorney to amend the affidavit, it ceased to be the act of the affiant; * * *The holding in the Patillo case was followed in Phariss v. State, 136 Tex.Cr.R. 504, 126 S.W.2d 981. Giving application to the rule announced •in such cases, we are constrained to hold that the action of the counsel for the state invalidated the complaint.

The judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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

On State’s Motion for Rehearing.

KRUEGER, Judge.

The state, by and through the County Attorney in and for Gregg County, has filed a motion for a rehearing in which it is contended that we erred in holding upon original submission that the state vitiated the complaint and information by striking out the word “gross” preceding the word “negligence.” It seems to be the state’s' contention that the word “gross” was surplusage. It may be true that the word “gross” stricken out by the state was merely surplusage; yet it was an alteration of the affidavit and information in substance and this the law will not tolerate. The vice lies in the alteration of a complaint and information after it had been sworn to by the affiant and filed. We do not intend to hold that the complaint and information are not sufficient with the word “gross” stricken out, but we do hold that the County Attorney had no legal right to alter the same by striking- out a word in the charging part thereof after it had been filed.

In the case of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 783, 30 L.Ed. 849, the trial court permitted the district attorney to strike from the charging part of the indictment the words “comptroller of the currency and” as being surplusage. The Supreme Court of the United States in reviewing the question held that although the words were surplusage, the act of striking them out vitiated the indictment. See, also, Rutherford v. State, 74 Tex.Cr, R. 617, 169 S.W. 1157.

Believing that the case was properly disposed of on original submission, the motion for a rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. .

text:
    VINSON v. STATE.
    No. 20007.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Bartlett, Carter & Rice and Robert G. Carter, all of Marlin, and Percy Foreman, of Houston, for appellant.
    John C. Patterson, Crim. Dist. Atty., and Chas. E. Reagan, Asst. Crim. Dist. Atty., both of Marlin, A. C. Winborn, and Spur-geon Bell, Asst. Crim. Dist. Attys., both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge. .

Conviction is for robbery, punishment assessed being ten years in the penitentiary.

The prosecution originated in Harris County, Texas, under a joint indictment charging appellant, Blackie Blackshear and D. L. Phifer with robbery. Upon application of appellant the venue was changed to Falls County, Texas, where the case against appellant was tried, and it is from a conviction in the District Court of said county last named that this appeal is prosecuted. The companion case against Blackshear is reported in Blackshear v. State, 137 Tex.Cr. R. 264, 128 S.W.2d 1205.

On March 26, 1937, at twelve o’clock noon five men held up and robbed A. B. C. Store No. 6 in Houston. They were armed with a sawed-off shotgun, rifle and pistol, and were disguised in various ways. As the robbers were leaving in a car two police officers arrived in their car and gave chase. After it continued for two or three blocks parties in the robbers’ car began shooting at the officers. A running gun fight between the officers and the robbers continued for a distance of about five miles. At one point in the pursuit the robbers’ car stopped and four men got out of the car. It was wet and muddy at this- point, and one witness testified that the robbers got in the mud while out of the car. The officers’ ammunition became exhausted and they abandoned the chase. It could not have been later than one o’clock P. M. when the officers abandoned the pursuit of the robbers.

Some witnesses at the scene of the robbery and during the pursuit identified Black-shear, others identified Phifer, and others identified appellant as among the robbers, but no witness identified all three of them, and some witnesses at the store who knew appellant declined to identify him, and some testified that he was not one of the robbers. Two of the robbers were not identified by any witness.

Appellant did not testify upon the trial but by evidence of other witnesses raised the issue of an alibi, which was properly submitted by the court.

Appellant brings forward complaint at the admission in evidence of testimony as to shooting by the robbers along the line of flight, in front -of a school house, near the Bowman residence and at the Flanagan residence. It will be seen by reference to the opinion in Blackshear’s case, supra, that complaint was presented to the same evidence as here objected to, and there held to have been admissible under the circumstances shown. The same ruling is called for in the present case.

A question is presented by bill of exception number 1, which-we believe reflects error.

We copy a part of said bill.

■ “Be It Remembered that upon the trial of- the above entitled and numbered cause, the State introduced the following testimony, over the objection of the defendant, and after City Detective V. H. Clark of the Houston Police Department on voir dire examination had testified:

“(1) That the robbery of the A. B. C. store for which defendant was on trial was not committed within his presence or view;

“(2) That it was not committed, within his knowledge, within the view of any magistrate ;

“(3) That no magistrate nor judge ordered him to arrest the defendant ;

“(4) That no one told him the Defendant was about to escape;

“(5) That at the time he was told to arrest the Defendant and before he arrested him, said witness knew that Defendant’s home was at 218 South 75th Street, Houston, Texas, where the arrest was made, and that he lived at said address

It is not necessary to copy paragraphs 6, 7, 8 and 11 of said bill, but they reflect that from the time the witness was directed to arrest appellant three Justices of the Peace were available from either of whom witnesses could have secured a warrant of arrest for appellant, or a warrant to search his residence, and that witness had ample time-to secure same.

Paragraph 12 of the bill follows: “(12) That witness got orders to arrest the defendant around six o’clock in the afternoon of March 26th, Í938, and arrested him about 12:30 on the morning of the 27th, and at the time he was told to arrest the defendant he was likewise told that defendant’s home was at 218 South 75th Street, Houston, Texas.”

The bill then recites that over appellant’s objection the witness among other things testified as follows: “I, in company with other officers, arrested the defendant the same night after the holdup that day, which occurred somewhere around noon. We arrested him around 12:30 or a quarter to one on Friday night in the house at 218 South 75th Street. Arrested with him were Blackie Blackshear, D. L. Phifer and Bobby Harris, a woman * * * As to whether I noticed anything on their clothes, Black-shear was in shorts; his pants and shirt were off. Phifer was in shorts; I believe he had his shirt on. Sherwood Vinson was in pajamas * * * Their clothes were lying in the room, muddy and soiled around, and their shoes were muddy. We brought them to the station. The defendant put on those shoes I said were muddy and wore them away.”

The objection urged to the evidence follows as reflected by the bill:

“ * * * we obj ect to any testimony or questions by the District Attorney or answers by the witness to the effect that the Defendant was arrested in the presence of D. L. Phifer or H. D-. Blackshear for the reason that numerous witnesses, to-wit, Robert McCandless, Roy A. Reid and August Priest have positively identified Black-shear and Phifer as being participants in the alleged robbery and they are identified in connection with other highly inflammatory and aggravated offenses and such prejudices should and probably does exist in the minds of the jurors against the innocence of Blackshear and Phifer, and the fgct that the Defendant was arrested in the presence of Phifer and Blackshear would be highly prejudicial against the presumed innocence of the Defendant Sherwood Vinson, and the identification of Sherwood Vinson is inconclusive, uñcertain and insufficient and not in any degree as clear, cogent and concise as the identification of Phifer and Blackshear, and the circumstances of their identification coupled with the circumstance of the arrest of this Defendant some 12 hours after the commission of the alleged robbery and at the residence and in the home of the Defendant would be highly incriminating and such evidence of the arrest of the Defendant in company with Phifer and Blackshear is illegally obtained in

“(1) Violation of the Constitution of the United States; and

“(2) in violation of the laws of the State of Texas in that the witness testified he violated specifically Article 1, Section 9 of the Constitution of the State of Texas, Vernon’s Ann.St. Amendment 4 of the Constitution of the United States, the Bill of-Rights, and Title 5, Chapter 1, Article 212 of the Code of Criminal Procedure of the State of Texas; Article 213 of the Code of Criminal Procedure of the State of Texas; Article 215 of the Code of Criminal Procedure of the State of Texas; Article 216 of the Code of Criminal Procedure of the State of Texas, and the decisions construing those Articles and Constitutional Provisions, and such evidence does not come within any exception to such provisions of the laws requiring that warrants issue before arrest or search, * * * ”

The last paragraph of said bill recites the following: “And as a part of this bill of exception, defendant would show the Court that the prosecuting attorneys, in their addresses to the jury, repeatedly argued the circumstance of the arrest of this defendant in company with Phifer and Blackshear- as strongly tending to prove him guilty of participating in the robbery of the A. B. C. Store No. 6.”

The bill is approved without qualification save to say that officer Clark testified that “he had information * * * that a' party ■ had seen Sherwood Vinson -at the holdup and knew he'was one of them and that if he would watch his house we could catch him when he came in.”

Articles 212, 213 and 215 of the Code of Criminal Procedure set forth very clearly the circumstances under which a peace officer may arrest without a warrant. It is not necessary here to copy them, but reference thereto will show that the recitals in the bill of exception under consideration negatives the presence of a single circumstance or condition which would permit the arrest of appellant without a warrant. In - his qualification to the bill the trial court evidently had in mind Article 215, C. C. P., which permits a peace officer to' arrest without warrant where he has been informed that a felony has been committed, but apparently overlooked the qualifying and limiting language that the offender must be about to escape and there was no time to secure a warrant. The presence of the conditions placed upon the right to arrest by the limitation mentioned is negatived by the recital in the bill.

Article 727a, C. C. P., Vernon’s Ann. C. C. P. art. 727a, provides: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the * * * United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

Said article has been given effect many times. See Gill v. State, 134 Tex.Cr.R. 363, 115 S.W.2d 923; Waltrip v. State, 134 Tex.Cr.R. 202, 114 S.W.2d 555; Weeks v. State, 132 Tex.Cr.R. 524, 106 S.W.2d 275; Rippy v. State, 122 Tex.Cr.R. 101, 53 S.W.2d 619; Roberts v. State, 112 Tex.Cr.R. 429, 117 S. W.2d 42.

There seems no question but that appellant’s arrest was illegal and the evidence obtained as a result thereof should have been excluded. The error in admitting it calls for a reversal unless it may be said to have been harmless. It seems difficult to reach such a conclusion under the circumstances here present. The issue of ' alibi was in the case. It may be assumed that the State put the objectionable evidence in .the record, not in aid of appellant, but because it was thought to be helpful to the ■ State. It certainly furnished a predicate for an argument that mud on the shoes of appellant indicated that he was present with the other robbers during the flight and at the point where they got out of their car into the mud; and also, grounds for the argument that the presence of Blackshear and Phifer at appellant’s house after the robbery was a strong circumstance of his participation with them in the robbery. It not only furnished a predicate for such an argument, but it is affirmatively certified that such argument was made more than once by representatives of the State. What effect the illegal evidence which supplied the basis for such argument, together with repeated reference to it, may have had on the jury is entirely too speculative for us to hold the error in admitting the evidence harmless.

The judgment is reversed and the cause remanded.


author: WALTHALL, Justice. PRICE, Chief Justice. ‘

text:
    TOLBERT v. McSWAIN, et al.
    No. 3865.
    Court of Civil Appeals of Texas. El Paso.
    April 6, 1939.
    On the Merits Oct. 12, 1939.

      Grisham & Grisham, of Tyler, for appellant.
    H. M. Harrington, Jr., and Harrington. & Harrington, all of Longview, for appel-lees.
   WALTHALL, Justice.

Appellees, Irvin McSwain and J. W. McCray, filed a motion m this case to dismiss appellant’s appeal, for contempt of court and for a writ of injunction as prayed for.

This suit originated in Gregg County,. Texas, and is now pending in this court on appeal.

The proceedings now before us show the-following:

On June 15, 1938, appellant filed his original petition in this cause in the District Court of Gregg County, in which he sued appellees on a series of sixteen promissory notes, each dated February 1, 1938, and each note in the principal sum of $200, alleged to have been executed by appellees and payable to appellant in monthly installments, at Kilgore, Gregg County. In the suit appellant sought to foreclose a chattel mortgage lien on certain personal property itemized and described in an exhibit made a part of the petition; that on June 22, 1938, appellant caused a writ of sequestration to-issue in said cause and under said writ had Ivey S. Knox, constable at Kilgore, to take into his possession all of the personal property described in the writ and in the chattel mortgage; appellees were cited to appear and did appear in the suit, and in their answer and cross action alleged that the notes sued upon were not due, sued for moneys due appellees and for damages by reason of the wrongful levy of the sequestration, and prayed for judgment vacating the sequestration. On the trial before a jury and on the verdict judgment was awarded appellees for $428.50, and $1,120 as damages for wrongful sequestration; also judgment vacating the sequestration and ordering the redelivery of the property to appellees. The court overruled appellant’s amended motion for a new trial, and appellant appealed, giving as security a supersedeas bond. Appellees did not re-plevy the property.

In their motion in this proceeding appel-lees allege that appellant, on March 7, 1939, posted written notices reciting that default had occurred in the condition of the said chattel mortgage, and that all of said personal property would he sold by him at the place stated on March 29, 1939; appellees further allege, on information and belief, that appellant has taken charge of the said personal property, the 1935 Chevrolet truck, describing same, together with numerous items of tools mentioned and described in said writ of sequestration, and taken same beyond the confines of Gregg County to a destination unknown to appellees.

Appellees allege that this appeal was prosecuted “on the strength of the herein-before mentioned supersedeas bond; that said bond does not state or purport to state that the appellant seeks to appeal from a portion only of said judgment, for which reason the appeal is an appeal from the judgment in its entirety; that said purported supersedeas bond stays the hand of the trial court and of these appellees under said judgment, and has the effect of holding the entire controversy and property in status quo pending termination of the appeal by this court, and required the said constable, Ivey S. Knox, to maintain custody of all of said personal property pending the outcome of this appeal.”

Appellees submit that when appellant, as stated, took possession of the property and proceeded to advertise same for sale under the terms of the chattel mortgage that he thereby abandoned his appeal, such proceeding being in direct contravention of appellant’s appeal, and has the effect of destroying the subject matter of the appeal and making moot that part of the judgment which dismissed appellant’s cause of action and which vacated the writ of sequestration and directed the redelivery of the property to appellees.

Appellees pray for judgment dismissing appellant’s appeal, and, in the alternative, move that in the event they are not entitled to have the appeal dismissed, they ask that appellant, the constable, and appellant’s attorney be cited to show cause why they should not be held in contempt, and for a writ of injunction restraining the sale of the property and requiring all the property restored by said constable, and for such alternative relief appellees refer to and adopt the above statement as part of their alternative motion, and further say: That during the pendency of this cause in the trial court no replevy bond having been delivered to the said constable by either appellant or appellees within the period of time allowed by the statute or prior to the time appellant perfected his appeal, that thereafter said constable, acting as an officer of this court, was not authorized in law to accept a replevy bond from appellant pending appeal; that after appeal, by delivery of the replevy bond and the taking possession of the property thereunder, as alleged, would and did destroy the status quo of the subject matter of the appeal and would and did trench upon the jurisdiction and power of this court; that if appellant is not restrained he will make sale of said property and appellees will suffer irreparable loss and damage for which they have no adequate remedy in the lower court, that court having lost jurisdiction both of the parties and the subject matter of the suit by reason of the appeal; by reason of the above appellees urge the necessity of a temporary restraining order preventing the sale, and thereafter a temporary injunction restraining appellant from proceeding with said sale pending this appeal.

Appellees further submit that they have a mandatory injunction commanding that appellant redeliver said property to said constable, Knox, and commanding said constable to repossess all of said property and to hold same in his possession until the final determination of this cause of action.

The above is duly verified and the residence of each of the parties in the proceeding is stated. Also there is in the record exhibits of the several matters of record and matters not of record, referred to in the above statement.

The parties against whom complaint is made as above were cited by this court to appear and show cause as indicated, and they have filed answer herein.

Appellant Tolbert, joined by his counsel, and Ivey S. Knox, as respondents, answered by general demurrer to the motion to authorize any of the relief sought, and further say, in substance: By their verified answer they admit that the constable accepted a replevy bond filed by appellant Tolbert, and did deliver to Tolbert the mortgaged property in question; Tolbert says the property was in his building when so delivered and is yet stored therein; that there was no physical transfer of the property ; respondents admit that they have advertised the mortgaged property to be sold on March 29, 1939; they admit “all matters and facts as reflected by the statement of facts and transcript as filed in this cause now pending before this honorable court”; Tolbert admits that as plaintiff below and after the judgment was rendered against him and his action was abated insofar as it related to his suit upon his note and mortgage that he did replevy the property and claimed possession thereof by virtue of the replevy, and claims that he has the right to the property in 'addition thereto by virtue of the provision of his mortgage as shown in the statement of facts; that whether he holds by replevy or by the terms of the mortgage, he, nevertheless, has the right to hold it; Tolbert says that it is his purpose to now sell the property under the terms of the mortgage and the authority given therein, unless directed by this court ' not to make such sale, and that if this court should direct that no sale be made, upon notice of such direction through the clerk of this court or otherwise, he wijl observe the directions of this court and that an injunction is not necessary; that since this motion is set for hearing on March 30, 1939, and the proposed sale is now advertised under the provisions and power of the mortgage appellant is calling off the sale for the present and will not readvertise the property for sale until a disposition is made of this motion.

Appellant submits that the statute-does not fix a time limit within which appellant may replevy the property. However, appellant in his answer insists that he has the right to possession of the property under the terms of the mortgage.

Appellant having answered that his proposed sale of the property under said advertisement has been called off, and, if we understand appellant’s answer, that an injunction preventing such sale is not necessary; that should this court disagree with him in his contention that he has a right now to the possession of said property and to advertise and sell it under the authority given in the mortgage, he will, simply on notice of such disagreement on the part of the court, abide by the directions of this court as to such possession, advertisement and sale of.the property.

Under such assurance on the part of appellant this court will not at this time direct the issuance of the injunction.

We do not agree with appellant in his contention that he has the right to the possession of the property at this time; nor do we agree with appellant that he has the right at this time to advertise and sell the property under either his replevy or the mortgage. After the constable makes his return on the sequestration writ he is no ■ longer holding the property under the sequestration, but under the direction of the writ he keeps the property subject' to the future order of the court. That is the effect of the officer’s levy and return and constitutes a'judicial deposit of the property in the custody of the court for ultimate disposal by the court. The return made by the officer as to the description of .the property should conform to that of the affidavit made in securing the writ rather than that of the mortgage.

The property then is in the custody and possession of- the officer for the. purpose of the suit, and the appellant has no right during the pendency of the suit to disturb that possession.

Appellánt in his answer claims,the right to possession of the property and to sell it under the provisions and terms. of his mortgage. He might have such fight in the'absence of any suit on the debt the mortgage was given to secure, but not thereafter and pending the suit on the debt. The mortgage is simply an incident to the debt, merely a security for its payment; the debt being one of the essentials of the mortgage, it is evident that the debt must be established where it is contended that the deed was intended to operate as a mortgage. Here, appellant brought his note' in-

' to a suit to establish the debt; the establishment- of the debt is one of the vital issues pending in the suit, and until that is done the mortgage is of no effect and the property given in the mortgage to secure the payment of the debt when established must not be disturbed.

Under the facts of the case we do not feel disposed to hold the parties in contempt, but we do insist that the constable must reinvest himself of the property and remain in possession of the property to abide the final result of the suit.

We have concluded that we will not determine in this proceeding whether appellant has abandoned his appeal, but will leave that question to be decided in the suit now pending and as yet not briefed.

PRICE, Chief Justice. ‘

This is an action on sixteen promissory notes in the sum of $200 each and for the foreclosure of a' chattel mortgage lien securing. the indebtedness. After the filing of the suit appellant, hereinafter called plaintiff, caused writ of sequestration to be levied, and. the property described in the chattel mortgage to be seized thereunder. Appellees, hereinafter called defendants, filed answer consisting of a general exception, general denial, a plea that the notes sued on were not due on account of an extension agreement, a counter-claim for work' and labor furnished plaintiff of the agreed value of $436.56, and a cross action seeking damages, actual and exemplary, for wrongful sequestration. Plaintiff filed supplemental petition urging á general exception to defendants’ answer and cross action, and special exception was leveled at the plea in defendants’ answer setting up the defense as to the extension agreement. The exceptions were overruled by the Court. The plaintiff duly preserved exception to the action of the Court. The case was tried to a jury. Same was submitted on special issues and the jury returned its verdict which was accepted by the Court. The Court entered judgment thereon against the plaintiff in favor of defendants ■ on their counter-claim to the extent of $428.50, and judgment that defendants Irvin McSwain and J. W. McCray recover of the plaintiff, Julian Potter and R. F. Stegall, his sureties on the sequestration bond, the sum of $1,120. Eight hundred and forty dollars of this last named amount was damages for the loss of the use of the property levied upon under plaintiff’s writ of sequestration; $280 was the amount pf exemplary damages assessed by the verdict. The judgment further provided that the writ of sequestration be vacated, set aside, held of no further effect, and ordered the constable to redeliver the property to the defendants. Plaintiff excepted to the judgment and gave notice of appeal.

In view of some of the issues involved in this appeal it is deemed necessary to set out some of the proceedings in chronological order.

Plaintiff’s petition was filed to the District Court on the 15th day of June, 1938; on June 22, 1938, plaintiff filed affidavit and bond for sequestration; writ forthwith issued thereon and' thereafter the property described in plaintiff’s affidavit was seized by the constable; the property was seized prior to the service of 'citation on defendants, or either of them.; on September 6, 1938, defendants filed answer and cross action; the verdict was returned by the jury on September 15, 1938; on September-17, 1938, a motion called a “motion for a. new trial” was filed by plaintiff. This motion will be later referred to herein.' On-October 3rd defendants filed a motion- for judgment and on October 7, 1938, plaintiff' filed motion for judgment non obstante veredicto, the defendants accepting service thereon; plaintiff’s motion was overruled' on October 7th; the judgment hereinbefore-described was rendered ón October 7, 1938, and recorded on the 12th of that month;on October 19, 1938, plaintiff filed what was denominated as his “second amended' motion for á new trial,” upon which is-' founded his assignments of error herein. This motion was overruled on the day it was filed, and in open court plaintiff excepted' and gave notice of appeal to the Court of Civil Appeals, Sixth Supreme Judicial District. On October 20, 1938, plaintiff filed bond for appeal in the sum of $4,500, which was on the same day approved by the district clerk. The. condition of this bond was as. follows: “That such appellant, J. R. Tolbert, shall prosecute his appeal with effect, and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform his-judgment, sentence or decree, and pay all such damages ás said Court may award against him.”

On October 25, 1938, defendants filed a motion praying that the court amend the judgment theretofore entered in the cause. On the 4th day of November, 1938, the court made order that the judgment be amended. The effect of the amendment was that plaintiff’s cause of action against the defendants on the notes sued on be dismissed without prejudice to the right of plaintiff to maintain a suit thereon at such time in the future as said notes became due. On November 16, 1938, the record was filed by the Clerk of the Court of Civil Appeals, Sixth Supreme Judicial District. The case was duly transferred by that Court to this, the record being filed herein on the 24th day of January, 1939.

On the- 12th day of March, 1939, defendants filed in this Court a motion to dismiss the appeal, or in the alternative, to cite appellant for contempt and for writ of injunction. Notice duly issued on said motion and plaintiff filed reply thereto. On a hearing the motion, insofar as it was to punish for contempt and to issue mandatory injunction, was denied; insofar as it was to dismiss the appeal it was passed for disposition in the final consideration of the cause.

The motion of defendants alleged in substance the judgment rendered in the District Court; the perfection of the appeal therefrom; that defendants did not re-plevy the property seized by the constable under the writ of sequestration, and that the plaintiff had not done so; that on or about the 6th day of March, 1939, by virtue of a replevy bond tendered by plaintiff to Ivey S. Knox, the constable holding such property under the writ of sequestration, the constable delivered said property to plaintiff; that plaintiff was about to sell the property under the power claimed in the mortgage and would do so unless prevented. In the written order overruling the motion to the extent hereinbefore indicated it was stated: “Appellant Tolbert, joined by his counsel and Ivey S. Knox, as respondent, answered by general demurrer to the motion to authorize any of the relief sought; and further say in substance by their verified answer that they admit that the constable accepted the replevy bond filed by appellant Tolbert and did deliver to Tolbert the mortgaged property in question; Tolbert says that the property was in his building when so delivered and is yet stored therein, that there was no physical transfer of the property ; respondents admit that they ha-ve advertised the mortgaged property to be sold on March 29, 1939 * * *. Tolbert says that it is his purpose to now sell the property under the terms of the mortgage and the authority given therein unless directed by this Court not to make such sale, and that if this Court should direct that no sale be made, upon notice of such direction, through the Clerk of this Court, or otherwise, he will observe the directions of this Court, and that an injunction is not necessary ; that since this motion is set for hearing on March 30, 1939, and a proposed sale is now advertised under the provisions and powers of the mortgage, appellant is calling off the sale for the present and will not readvertise the property for sale until a disposition is made of this motion. * * * Under such assurance on the part of the appellant, this Court will not at this time direct the issuance of the injunction. * * * Under the facts of the case we do not feel disposed to hold the parties in contempt, but we do insist that the constable must reinvest himself of the .property and remain in possession of the property to abide the final result of the suit.”

The ruling of the Court on the application for injunction had the effect of holding the property in the custody of the Court. We assume that the ruling has in all respects been observed.

Judgment of the trial court definitely adjudicated that plaintiff’s suit had been prematurely brought. This was its legal effect, in our opinion without the amendment thereof. This judgment remaining in effect, upon plaintiff’s notes becoming due he had a perfect right to pursue the remedies provided in the chattel mortgage. The judgment was that his suit be dismissed without prejudice. Under the mortgage he had a right to take peaceful possession of the property on default and to sell it to satisfy his claim. On the other hand, he did not have the legal right to seek a judicial foreclosure and at the same time resort to the extra judicial foreclosure provided for in the instrument. Kelly v. R.-F. Finance Corp., Tex.Civ.App., 60 S.W.2d 1067, and cases there cited. So long as the appeal was pending appellant was seeking a judicial foreclosure of his lien. If plaintiff had consummated an extra judicial foreclosure during the pendency of this appeal, there could be little doubt in our minds as to the legal effect of such action on this appeal. Bolen v. Cumby, 53 Ark. 514, 14 S.W. 926; Coston v. Lee Wilson & Co., 109 Ark. 548, 160 S.W. 857; Albright v. Oyster, 8 Cir., 60 F. 644; Mastin v. May, 130 Minn. 281, 153 N.W. 756; Hutton v. Pease, 190 Ark. 815, 81 S.W.2d 21.

The plaintiff has abandoned his efforts to sell the property under the mortgage. He has restored same to the custody of the constable. In view of these facts we overrule the motion to dismiss the appeal.

It is contended that plaintiff’s assignment based on his second amended motion for a new trial should not be considered because plaintiff failed to file motion for a new trial within two days after judgment was rendered. A verdict was returned on September 15, and on the 7th of October judgment was pronounced thereon. On September 17th plaintiff filed what he denominated “motion for a new trial.” This motion, omitting everything except the body thereof, was as follows:

“Comes now the plaintiff J. R. Tolbert and moves the Court to grant him a new trial and says:
“1. That the verdict of the jury is contrary to the evidence in this case.
“2. That the verdict of the jury is contrary to the law in the case.
“3. That the verdict is contrary to both the law and the evidence adduced at the trial of this cause.
“Wherefore, plaintiff prays that he be granted a new trial herein.”

On October 19th he filed what was denominated his “second amended motion for a new trial,” and on the same day the Court considered and overruled same. There does not appear in the record a first amended motion for a new trial, nor leave to file the same, nor leave to file second amended motion for a new trial. We presume that the motion set out and the motion filed on the 19th of October were the only motions filed for a new trial.

It is contended that the motion filed on September 17th was not a motion for a new trial, but a mere motion to set aside the verdict, and that plaintiff did not file motion for a new trial within two days after rendition of the judgment. The case of City of Wichita Falls v. Brown, Tex.Civ. App., 119 S:W.2d 407 is cited as authority to show the insufficiency of the motion filed September 17th to constitute a motion for a new trial.

We assume, without so deciding, that it was insufficient. The term of court had not adjourned at the time the so-called amended motion was filed and considered. The Court still had power to grant or refuse the motion. There likewise may have been power to refuse to consider the motion. The court elected to consider and overrule same. In our opinion, the motion is sufficient to support the errors assigned. Dittman v. Model Baking Company, Tex.Com. App., 271 S.W. 75, and cases cited therein.

It is sought in appellees’ brief that we should not consider certain of the assignments of error and the propositions relative thereto because the brief fails to show to which assignments of error same are germane. In short, that there has been a violation of Rule 30 for the government of Courts of Civil Appeals. It is probably true that plaintiff’s brief fails in many respects to conform to the rules for proper briefing and is perhaps subject to the criticism in this respect made by defendants, but as we shall dispose of this appeal on fundamental and basic matters appearing from the record, we deem it unnecessary to pass upon the points raised as to the sufficiency of plaintiff’s brief.

A determination of the entire case depends upon the correct solution of the question as to whether or not appellant’s notes were due at the time he instituted his suit. If due, the proposition as to wrongful sequestration passes out of the case. The mortgage gave the right of possession in case there was a default as to payment. In Bordelon v. Philbrick, 125 Tex. 460, 84 S.W.2d 710, 715, it is said: “It seems to be well settled that if one is in possession of property under mortgage which permits the mortgagee to take possession on default, he cannot maintain an action for damages if the property is taken 'under some kind of a writ, even though the writ be wrongfully procured.” The case of Brunson v. Dawson State Bank, Tex.Civ.App., 175 S.W. 438, is cited as supporting the proposition announced.

Plaintiff’s petition declared on a series of sixteen promissory notes in the sum of $200 each, each containing an optional accelerating maturity clause. Two or more of these notes on their face showed to be past due. The petition averred a default and the election of plaintiff to declare the series due. The only defense plead by defendants to defeat a right of recovery upon the notes was as follows:

“These defendants would further show to the court that on or about the 16th day of May, 1938, the defendant Irvin McSwain while working in the building of an air compressor station was very severely burned on his left arm and entire left side by the ignition of gas in the trench where he was working, the injury sustained by said defendant being so severe that he was confined to bed for many days and unable to work, and from which injury he had not recovered so as to be able to go back to work at the time of the institution of this suit. These defendants would show to the court that the plaintiff waived the payment on the notes herein sued on and the parties plaintiff and defendants agreed to extend the time of payment of said notes until such time as defendant Irvin McSwain had recovered from his injury and was able to go back to work, said notes to bear the same rate of interest during said extended time of payment, and these defendants relied upon said agreement of extension of time of pajunent and did not undertake to make payment on the notes due up to June 20th, 1938, because they had agreed not to pay same prior to such extended due daté.
“These defendants would respectfully show to the court that they relied upon the promise of the plaintiff to extend the time of payment of said notes as set forth herein-above, believing that they had a right to rely upon such extension of time and did rely upon such extension of time and exercised the privilege granted to them to defer the payments that would otherwise have been due on the 20th day of May and June, 1938, and respectfully show to the court that the plaintiff is now estopped to maintain this suit based upon the alleged default on the part of these defendants and is estopped to determine the balance of said notes due as he is undertaking to do in the institution of this suit.”

Plaintiff by supplemental petition urged exceptions to the sufficiency of these allegations. These exceptions were overruled by the court and in the order overruling same the exception appears.

A valid extension of notes is founded on contract. In order to constitute a valid enforceable contract of extension, it must be supported by a valid consideration and the duration of the extension must be for a definite period. During the period of the extension provided for the maker cannot have the right to make payment. 8 C.J., p. 426, § 628; 10 C.J.S., Bills and Notes, § 265, p. 760; Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061.

Let us consider the pleading in the light of these well established legal principles. As to consideration, the pleading does state: “The parties plaintiff and defendant agreed to extend the time of payment of said notes until such time as defendant Irvin McSwain had recovered from his injury and was able to go back to work, said notes to bear the same rate of interest during the said extended time of payment.”

The allegation of the terms of an oral contract does not necessarily import a consideration. Hardwicke v. Trinity Universal Ins. Co., Tex.Civ.App., 89 S.W.2d 500, and cases cited.

It is necessary to plead consideration of an oral contract in order to recover thereon. Cisco & N. E. R. Co. v. Ricks, Tex. Civ. App., 33 S.W.2d 878, and cases cited; Caudle v. Eliasville State Bank, Tex.Civ.App., 93 S.W.2d 779.

The portion of defendants’ answer quoted does not show whether the agreement was written or oral. Both appellees and appellant concede in their briefs that the agreement, if any, was oral. The pleading does not aver the agreement was in writing so as to show that same imported a consideration. It fails to show that defendants bound themselves not to pay the notes during the alleged period of extension. We do not believe that this vital and necessary fact can be inferred from the answer of defendants.

We are further of the opinion that the answer as quoted is insufficient to raise the issue of waiver. It lacks allegation of any action or non-action taken in reliance on the alleged agreement; it does not allege that defendants, but for the agreement, could and would have paid up the delinquencies. The legal consequence of the default in the payment of the notes as they matured was that appellant had the option of maturing all of the series. If the agreement was not sufficient to preclude appellant from proceeding with the collection of the notes due, it was not sufficient to preclude him from declaring the remainder of the notes due.

It seems to us there is another fatal defect in the pleading. Under the law the period of extension must be definite. This requirement is as vital and essential as any other term of the contract. The allegation in substance was that defendant McSwain was then (the time of making the contract) suffering from a disabling personal injury and that the time of payment of said notes was extended until such time as he was able, to go back to work. In order for an extension to be certain and definite the event terminating its duration must be of certain occurrence. 8 C.J. p. 428, Notes 34, 35; 10 C.J.S., Bills and Notes, p. 761, § 265; Goodman Mfg. Co. v. Mammoth Vein Coal Co., 185 Iowa 253, 168 N.W. 912; Workman v. Ray, Tex.Civ.App., 180 S.W. 291.

McSwain might never have been able to return to work.

In view of another trial it is appropriate to discuss another matter. Defendants set up in their answer by way of a counter-claim or setoff an account for work and labor aggregating $436.56, and sought to have same credited on the notes. Plaintiff, by special exception, challenged appel-lees’ right to plead said account as a setoff or counter-claim. If the account grew out of or was connected with the cause of action asserted by appellant or was a liquidated demand, defendants had the right to set same off as against plaintiff’s demand. Art. 2017, R.S., 1925. It does not clearly appear that the account was founded on a cause of action arising out of or incident to or connected with plaintiff’s cause of action. In the case of Jones v. Hunt, 74 Tex. 657, 12 S.W. 832, a statement in the opinion of the Supreme Court of Georgia is at least impliedly approved to the effect that “whenever the amount of a debt due is agreed upon by the parties or fixed by operation of law, same is liquidated.” The casé of Taylor et al. v. Bewley, 93 Tex. 524, 56 S.W. 746, holds that where the recovery of the market value of goods is sought, the claim is unliquidated; that where an agreed price is sought to be recovered the claim is liquidated. The same test should be applied to claims for work and labor. However, by agreement of the parties an unliquidated demand may be urged against a liquidated demand.

We think the case of Taylor et al. v. Bewley, supra, furnishes the proper way to determine whether defendants have a right to plead this account as a counter-claim in the absence of an agreement that same be set off against the notes.

It is ordered the case be reversed and remanded.