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

text:
    HARDIE v. STATE.
    No. 20776.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.

    Rehearing Denied Nov. 20, 1940.
    Application for Leave to File Second Motion for Rehearing Denied Dec. 4, 1940.

      Tom R. Mears, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the offense of kidnapping C. L. Kirby for the purpose of removing him out of the State, and the jury assessed a penalty of five years in the penitentiary, hence this appeal.

The facts show that appellant was an inmate of the State Training School at Gatesville, Texas. That a companion inmate named “Bulldog” Reynolds had possessed himself of a pistol, and at nighttime, by means of a ruse, Mr. Kirby, who was an attendant in the dormitory where the boys were sleeping, was caused to open the door to the dormitory, whereupon the boy Reynolds presented this pistol, and by means thereof he caused the attendant to open the door, and then to go down the hall where appellant was sleeping. Reynolds awakened appellant and said “Let’s get going.” The two boys then took Kirby out in a field, meanwhile threatening him with the pistol, and eventually they made connections with some four other boys on the road who were in an automobile, and then began a flight all over the State. The car contained other firearms, which were used threateningly towards Kirby in many instances. When requested by Kirby to release him the boys told him that they were taking him with them as protection against any officers shooting at them; that they intended to keep him until they got to the State of Louisiana or Arkansas. After having gone into Waco, Corsicana and probably Tyler, they came near to Malakoff, and they there decided to tie Kirby up with wire, gag him and knock him insensible and proceed on their journey out of the State. Kirby finally talked them out of beating him, but they did tie him up with wire, and left him gagged. They were after-wards captured near Marshall in Harrison. County, near the Louisiana border.

Appellant’s first complaint is found in his bill of exceptions No. 1, which is based on an endeavor upon the part of his mother to get the county attorney to' agree to prosecute this appellant as a delinquent child in the juvenile court. It is deducible from the testimony that appellant was already an inmate of the State Training School as a delinquent child; that this offense was committed by him, if at all, on April 28, 1939; that his mother appeared before the county attorney of Coryell County on May 6, 1939, and merely made the request that appellant be proceeded against as a delinquent child, stating in such conversation that appellant would not be seventeen years old until May 9, 1939, or three days thereafter. The county attorney told her that he intended to present this matter to the grand jury which met on July 10, 1939. It is appellant’s contention that it was obligatory upon the attorney’s part to immediately proceed against appellant as a juvenile.

The county attorney could not, under the statute, make an admission as to the age of the appellant. See Art. 1086, C.C.P., but proof of the same should be made to the satisfaction of the court. The mother presented him with no affidavit setting forth such age, nor other proof than her mere statement that her son lacked three days of being seventeen years of age, but contented herself merely with such oral statement. Unquestionably the charged' offense was a serious one, a felony, and the testimony evidenced shrewd preparation and the contemplation of other and more serious crimes upon the part of appellant and his companions.

The law contemplates as controlling in such matters the age of the accused at the time of the trial, not his age at the time of the offense, and we do not think that the county attorney’s refusal to rush into an immediate trial within less than three days evidences an unfair attitude upon his part. In the case of McLaren v. State, 85 Tex.Cr.R. 31, 209 S.W. 669, the appellant had been first tried for the murder of his father while he was only sixteen years of age which first case was reversed by this court on that ground, the court holding that he should have been proceeded against as a juvenfle. See McLaren v. State, 82 Tex.Cr.R. 449, 199 S.W. 811. Upon the reversal of this case the accused had reached the age of seventeen years, and he was again put upon his trial for murder under the authority of Arrendell v. State, 60 Tex.Cr.R. 350, 131 S.W. 1096, and although the offense was charged to have been committed on a date which showed the accused was under the age of seventeen years, nevertheless it was held that the age of the accused at the time of the trial and not at the time of the commission of the offense was that which governed in regard to his juvenility. McLaren v. State, 85 Tex.Cr.R. 31, 209 S.W. 669. Also see Watson v. State, 90 Tex.Cr.R. 576, 237 S.W. 298; Walker v. State, 119 Tex.Cr.R. 330, 45 S.W.2d 987; Stallings v. State, 129 Tex.Cr.R. 300, 87 S.W.2d 255. We have no doubt of the correctness of this doctrine, and this bill is overruled.

Bill of exceptions No. 2 is practically to the same effect as Bill No. 1, and is also overruled.

Bill of exceptions No. 3 relates to the refusal of a peremptory instruction, and is overruled.

Appellant complains because of the court’s failure to charge on the law of circumstantial evidence. It seems to us that such a charge was not demanded herein. The testimony as to the forced taking of Kirby, of course, was direct; the portion of the offense charged and necessary to be proven was that relative to taking Kirby out of the State. The proof thereof could only lie in the minds of appellant and his companions, and in this instance is not dependent upon circumstances, but comes from them direct. They told Kirby, when asked by him to be released :

“ ‘No, we will put you out about this time tomorrow night in Louisiana or Arkansas, and we are going to hold you until we get you out of the State.’ * * * Reynolds said ‘as long as we have got you in here we have protection from the law. When they find out that you are with us they are never going to shoot in on us while you are with us.’ * * * I asked them there (at Waco) to let me go, and they said ‘No,’ they were going to take me along until they got out of the State. * * * They said they were going into Louisiana or Arkansas.”
“They, told me that they were carrying me for protection. And trying to make their escape from the Juvenile Training School. That is what they said. That is what Bulldog told me and Ernie too. Ernie had said nothing to me until they took him out of the cell. They told me that they were going to carry me either to Louisiana or Arkansas when I was trying to get them to let me go. They said either to Louisiana or into Arkansas. They talked about them both.
“I don’t know whether it was the particular highway that leads to Louisiana, but they could follow this highway to that State. I am not familiar with the highways. I would have to look at the map. They released me at Malakoff. They had a map that night. There is one highway turns north and goes to Arkansas and one goes ahead to Louisiana. We could go either way.’’

After traveling all day—at times appellant guarding Kirby with a shotgun, and at times others guarding him—they eventually got their car stuck in a hollow, and at such place seemed to have decided to bind Kirby and tie him to a tree with wire, gag him and beat him into insensibility and leave him there unconscious, and proceed on their contemplated journey. These boys were later arrested on April 28, 1939, on Highway 80, which is called Texas and Louisiana Highway, which goes to Shreveport, Louisiana, near the town of Marshall, in Harrison County. They still had a pistol, a shotgun and a rifle with them.

We think that there is direct testimony to show that these boys intended to take Mr. Kirby out of the State, and that they were afraid to leave him because of the fear of his giving the alarm and their resultant capture. Why they changed their minds we do not know, but we have their own statements of what they intended to do, and it was not necessary to resort to circumstances to thus show. We overrule this contention.

Appellant’s next contention seems to be that he, if guilty of any criminal act, could only be guilty as an accessory after the fact, basing his argument on the fact that “Bulldog” Reynolds took the man Kirby in his custody and liberated appellant, and this offense of kidnapping was at such time initiated by Reynolds alone. The court charged on the law of principals, and the testimony showed that appellant immediately upon being liberated entered into the conspiracy which evidenced itself herein by the careful preparation made beforehand; that appellant possessed himself of a shotgun, and made Kirby lie down and hide; again he made him march down the road, and stood guard over him, and “restrained Kirby from moving from one place to another” as charged in the indictment. Mr. Branch says in his Penal Code, p. 352, Sec. 693: “It makes no difference at what time one enters into a conspiracy to commit a crime; every one who enters into the common purpose and design is generally deemed a party to the act which has been done before by the others and to every other which may be done by any of the others before the termination of the conspiracy in furtherance of the common design,” citing many cases.

Appellant complains because he says the court should have charged the jury that if it was the purpose of the kidnapping to enlarge the two boys from their confinement in the State Training School, that such a defense should have been submitted to the jury in the court’s charge on the converse of the law of principals. Such a purpose may have been primarily the one that actuated these boys, but accompanying such purpose and in order to effectuate it, from their testimony, we gather, there seemed to have arisen the necessity of taking Kirby out of the State in order that he might not inform upon them until they had accomplished their purpose of fleeing from the State. We do' not think such a defense had presented itself in these facts.

There are other contentions advanced by appellant in his brief relative to the court’s charge, and based upon the premise that appellant was asleep when the witness Kirby was first captured by “Bulldog” Reynolds, and therefore that he could not be guilty of the offense of kidnapping. As observed above, however, we think an answer to such contention is that if a person enters into a conspiracy after its formation, and participates in the carrying out of the common_ design, that he adopts all previous acts of his cocon-spirators. See Branch’s Penal Code, supra.

We have considered all of appellant’s ■contentions set forth in his brief and the record, and find no error reflected therein.

The judgment is affirmed.

On Motion for Rehearing

BEAUCHAMP, Judge.

Two propositions are presented in the motion for rehearing, one of which has given the members of this court no little concern. It is presented that under the facts of the case appellant could not be a principal in the kidnapping of Kirby, but, at most, would be an accomplice.

We must all agree after an exhaustive review of the holdings of this court on the law of principals that if appellant came into the case after all things had been done to complete the crime and simply to aid the confederates in escaping, or in hiding the evidence of the things they had already done, or to participate in their accomplishments, he would not be a principal. On the other hand, if he enters into a relationship with another party while the crime is being committed, and (1.) knowing the unlawful intent, aids by his acts or encourages by his words the commission of the offense, or (2) keeps watch so as to prevent any interference with the commission of the crime, or (3) actually engages in procuring aid, arms or means of any kind to assist in the unlawful act, or (4) during such time endeavors to secure the safety of the other party or of the other party and himself, or (5) procures an innocent party to committ the offense, or (6) in any manner agrees to the commission of the offense and is present, whether he renders any aid or not, he becomes a principal. Failing to do one of these things it would be difficult to conclude that he would be a principal.

It is not essential, however, to a proper discussion of this case that we go further than the facts before us, and a speculative case embracing other conditions than those under consideration may be confusing rather than helpful. Whatever the facts and circumstances, we must keep clearly before us the underlying principle, “that in every case, no matter what phase of the law is involved, the evidence must show, and the charge of the trial court submit, that at the time of the commission of the offense the parties must be acting together, each doing some part in the execution of the common purpose.” Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046, 1053. See also Smith v. State, 21 Tex.App. 133, 17 S.W. 558.

The authorities cited in the original opinion are here adhered to without repetition, and the reasoning indulged based on them is re-affirmed.

From the many authorities examined it is noted that the question will frequently turn on the wording of the statute of the particular state, so that consideration must be given to the language of our own.

Art. 1169, P.C.1925, provides that: “False imprisonment is the wilful detention of another against his consent * * * which restrains the party so detained from removing from one place to' another as he may see proper.’'

Art. 1177, P.C.1925, Vernon’s Ann. P.C. art. 1177, defining kidnapping reads in part: “When any person is falsely imprisoned for the purpose of being removed from the State * * * such false imprisonment is ‘kidnapping.’ ” This is the section defining kidnapping under which appellant is being prosecuted.

For a better understanding, let us copy into the definition of kidnapping the definition of false imprisonment, which would read as follows: “When any person is wilfully detained by another against his consent * * * which restrains the party so detained from removing from one place to another as he may see proper, for the purpose of being removed from the state, such detention is kidnapping.”

The earnest and learned argument in behalf of appellant presented to us seems to be based upon the theory that the seizure of Kirby by Reynolds completed the offense and that the awakening of appellant and his entry into the activities which immediately followed constituted him an accessory after the fact. If the definition was fully satisfied under the facts of this case at the moment the seizure of Kirby took place so that all the things that follow are no part of the kidnapping, then the appellant’s theory would be correct. There is quite a distinguishment to be made between the word detention as used in Art. 1169, 'and embraced in Art. 1177 defining “kidnapping” and the word “seizure.” “Detention’’ is defined as “the keeping back”; “confinement”; “restraint”; while “seizure” is to “take possession* of forcibly”; “to grasp”; “to snatch”; “to put in possession.” It occurs to us that while seizure means to “put in possession”, detention may well be said to mean to “keep in possession for some period of time.”

Using the language of the definition of false imprisonment as applied to the facts of this case, may we ask these questions:

1.Did appellant aid by acts or encourage by words Reynolds in the unlawful detention of Kirby?

2. Did he keep watch to prevent the interruption of Reynolds in the detention of Kirby?

3. Did he engage in procuring aid or arms or means to assist Reynolds in the detention of Kirby while the latter perpetrated the unlawful detention?

4. Was appellant doing anything to secure the safety or concealment of Reynolds while detaining Kirby?

5. Was Reynolds appellant’s innocent agent in detaining Kirby?

6. Assuming that appellant had agreed to and had advised the commission of the offense by Reynolds, can it be said under the circumstances here existing that appellant was present when Reynolds detained Kirby so as 'to bring appellant under the sixth designation of • principals as set out in the Middleton case, supra?

An affirmative answer to one or more of the foregoing questions may constitute him a principal.

A brief analysis of the facts as testified to by Kirby and properly submitted to the jury will be sufficient. Appellant was sleeping when Reynolds drew a pistol and took charge of Kirby. He was in a separate cage, but whether in a separate room we are unable to tell from the record. The first thing done after appellant joined Reynolds was to go to another cage and turn out another boy. “Then they demanded me to go down the steps ahead of them. Reynolds did most of the talking all the time * * (S.F. _p. 2,) “And they told me I was just delaying the time * * *. There was lots of this talking that I don’t know whether they were all talking at times, and I could not say which one every time. * * * They were both talking there part of the time (the boys). The gun was being held on me all of this time. Reynolds did part of the talking and this boy did some.” (S.F. p. 6.) “This defendant would go on a few feet ahead and he would say, ‘Make him run; make him run’. We got down the road about a quarter of a mile and the car was there that they expected. Reynolds sent this boy and Mangum down the road to see if the car was there, and told them to go up the road and meet us. They went down about half a mile and came back and reported the car was not there. We got down to the end of this road; me and these three boys stopped and they was discussing what to do and this boy Iiardie rushed them up and says, ‘we must go; can’t stay here.’ And I kept saying, ‘let me go’, and they said no they would not let me go, and Hardie said, ‘we’ll just have to go down and get the car’, and said, ‘we couldn’t get away from the dogs, all of us, without a car.’ ” (S.F. p. 7.) Again the witness testified: “He started defendant down the road to stop the car. When he got them stopped, I guess it was 200 yards from the road, he came running back and he said, ‘hurry— make him run’, and he was threatening every few minutes and I would just keep walking.” (S.F. p. 7.)

The foregoing is sufficient quotation from the testimony to reveal the connection of appellant with the detention of Kirby even before they left the building. It was continuous throughout the hours, as stated in the original opinion. Had Reynolds been interrupted at any time or place, it appears he would have been guilty of the offense of kidnapping, yet, under the facts of this case, the detention was a continuous thing until the victim was abandoned and loosed himself from his bonds in a canyon near Malakoff. I-f the meaning of false imprisonment as used in the article of the statute defining kidnapping means only the immediate seizure of the victim, then the legislature has used the word “detention” in a sense other than its ordinary and accepted meaning. We find nothing in the statute to so indicate. If given that ordinary and accepted meaning, detention includes and embraces all of the period of time in which the parties involved held the victim in their custody, and all of their acts may, and do under the facts of this case, constitute and are included in the offense of kidnapping. That being true, it is perfectly. apparent that appellant was a principal offender and the charge was properly laid against him.

The quoting of. the evidence in this case by Kirby aids in disposing of the other question raised in the motion for rehearing. Kirby’s testimony was direct on the subject and sufficient upon which a jury may find him guilty. Any circumstance which may be considered in the case is secondary and, in fact, minor so that it may not be relied upon and probably was not. That being true, a charge on circumstantial evidence would have been improper.

The motion for rehearing is overruled.

HAWKINS, Presiding Judge

(dissenting).

Appellant has presented a motion for. rehearing in which he urges two propositions, both of which have given us much concern. The first is that the evidence demonstrates that appellant was not a “principal” in the kidnapping of Mr. Kirby; second, that the case is one dependent on circumstantial evidence and a charge upon such issue should have been given.

It is well to get clearly in our minds when a party is a “principal” in the commission of an offense. In Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046, 1052, it was pointed out that some confusion had arisen regarding the question and it was undertaken in the case mentioned to clarify the law upon the subject. We quote from the opinion as follows:

“ * * * Article 74 of our Penal Code says that all persons who are guilty of acting together in the commission of an offense are principal offenders. Following this comprehensive general statement of the underlying principle, which is acting together in the commission of the offense, come articles 76 to 78, each pointing out specific ways in which the parties may be said to act together. The six specific definitions in these articles hold that in the following cases the parties are principals:
“(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
“(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.
“(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
“(4) When A. actually commits the offense, but B., at the'time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.
“(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
“(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.
“Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require the presence of the coprincipal with the one actually doing the criminal act, while four make him a principal though physically absent from the scene of the crime; but no confusion will arise if we keep clearly before us the underlying principle that in every case, no matter what phase of the law is involved, the evidence must show, and the charge of 'the trial court submit, that at the time of the commission of the offense the parties must be acting together, each doing some part in the execution of the common purpose.”

In addition to the four instances pointed out in the opinion in Middleton’s case where a party may be a principal though physically absent from the scene of the crime, a fifth may be mentioned. In Smith v. State, 21 Tex.App. 107, 17 S.W. 552, it appeared that a conspiracy had been entered into between M. M. Smith and a number of other people involving the theft of cattle in Erath County. By the terms of the conspiracy the cattle were to be stolen by the other conspirators but were to be delivered to M. M. Smith in Parker ' County, and it was then M. M. Smith’s part of the conspiracy to sell the cattle and divide the proceeds among himself and the other conspirators. It was held that under these circumstances M. M. Smith was a principal in the theft of the cattle although he was not present at the place of the theft and was doing nothing at the time the theft was committed in furtherance of the common design. The holding in the Smith case adds still another — the fifth — instance where one may be a principal although not personally present .at the time the offense is committed. The Smith case has been followed and the principle there announced approved many times by this court, some of the cases being as follows: Kolb v. State, 88 Tex.Cr.R. 593, 228 S.W. 210; Smith v. State, 21 Tex.App. 133, 17 S.W. 558; Byrd v. State, 117 Tex.Cr.R. 489, 38 S.W.2d 332; Burow v. State, 85 Tex.Cr.R. 133, 210 S.W. 805; McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96; Coy v. State, 131 Tex.Cr.R. 489, 100 S.W.2d 1016; Miller v. State, 133 Tex.Cr.R. 53, 105 S.W.2d 1097; Thornton v. State, 136 Tex. Cr.R. 560, 127 S.W.2d 197.

It must be borne in mind that because a person has been a party to a conspiracy to commit a crime it does not necessarily follow that such person is a principal in the commission of the crime which is contemplated by the conspiracy.

In our original opinion we quoted Sec. 693, p. 352, Branch’s Ann.Tex.P.C. as follows: “It makes no difference at what time one enters into a conspiracy to commit a crime; every one who enters into the common purpose and design is generally deemed a party to the act which has been done before by the others and to every other which may be done by any of the others before the termination of the conspiracy in furtherance of the common design.” When this statement is understood as the announcement of a rule of evidence it is absolutely correct. At whatever time one enters into a conspiracy, the acts or words done or said by any of the other conspirators in furtherance of the common design is provable against each of them, and in that sense each is deemed a party to the acts done or words spoken by the others, but it is not to be understood that in the commission of the crime which is contemplated by the conspiracy that all conspirators would be principals. They become such only when brought into that relation by the evidence under the statute and rules regarding principals heretofore referred to. See Cook v. State, 14 Tex.App. 96.

In Bean v. State, 17 Tex.App. 60, accused was charged as a principal with the murder of Charles Stevens. The question arose as to whether accused was guilty as a principal or an accomplice, and it is stated in the last paragraph of the opinion that according to accused’s own confession he was guilty both as an accomplice and as an accessory, and that under the indictment as it was framed he could not legally be convicted of either of these offenses. Drawing the distinction between a principal and an accomplice, Judge Wilson quoted from Cook v. State, 14 Tex.App. 96, and he then makes the following very pertinent observation with reference to the distinguishing features of the two offenders: “We must confess that, to our minds, the distinction between these two characters of offenders is often shadowy and indistinct. It is as clearly drawn in Cook's case as it is possible perhaps to draw it. The dividing line between the two is - the commencement of .the commission of the principal offense. If the parties acted together in the commission of the offense, they are principals. If they agreed to commit the offense together, hut did not act together in its commission, the one who actually committed it is the principal, while the other, who was not present at the commission, and who was not in any way aiding in its commission, as by keeping watch, or by securing the safety or concealment of the principal, would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed, or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of, and disconnected with, the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense in aid thereof, such party is not a principal offender but is an accomplice or an accessory according to the facts.” See also O’Neal v. State, 14 Tex.App. 582; O’Quinn v. State, 55 Tex.Cr.R. 18, 115 S.W. 39.

In Petty v. State, 128 Tex.Cr.R. 562, 82 S.W.2d 965, 968, accused had been convicted of the offense of receiving and concealing stolen property, but contended strenuously that if guilty at all he was .guilty as a principal, basing it on the proposition that if there was a conspiracy entered into by accused and two other parties to commit the theft of sheep, and that the sheep were stolen during the existence of the conspiracy, and in furtherance of the criminal design of all, that appellant, if guilty at all, was guilty as a principal. It was not contemplated that Petty would sell the sheep and divide the proceeds with the other conspirators. Petty was to pay a specified price for the sheep when delivered to him, and the other conspirators had no further interest in them nor the proceeds. This court said in the opinion on motion for rehearing: “In determining the question it must be borne in mind that the mere fact that a conspiracy to steal is shown' does not make all parties to the conspiracy principals in the theft. Branch’s Ann.Tex. P.C., § 700, p. 359; Burow v. State, 85 Tex.Cr.R. 133, 210 S.W. 805; Mitchell v. State, 44 Tex.Cr.R. 228, 70 S.W. 208; Sessions v. State, 37 Tex.Cr.R. 58, 61, 38 S.W. 605; Bell v. State, 39 Tex.Cr.R. 677, 47 S.W. 1010; O’Quinn v. State, 55 Tex.Cr.R. 18, 115 S.W. 39.” See also Gammel v. State, 124 Tex.Cr.R. 328, 62 S.W.2d 139.

Unless appellant was so connected with the commission of the crime of kidnapping Kirby a's to characterize him a principal therein, the fact that appellant profited by it to escape from the training school and did some subsequent act in furtherance thereof would not make him a principal. In Walker v. State, 29 Tex.App. 621, 16 S.W. 548, 550, it appears that Shearra shot Mallory. Walker struck Mallory after he had been shot. The State there contended that under the circumstances Walker’s act was a' ratification and endorsement of what Shearra had previously done, and that thereby Walker' became a principal in the killing of Mallory. This court said:- “We do not know of any such rule of criminal law. The doctrine of indorsement or ratification of an act already committed by another, so as to make the in-dorser and ratifier equally guilty with the main actor or party indorsed, is a principle and rule of conduct which we have not found laid down by any of the standard-elementary authors of criminal law, and we. know of no such rule having been announced in any of the decisions of the courts of last resort in this country, nor have we been cited to any authority bearing out that proposition by the learned and distinguished counsel for the state.”

Art. 1169, P.C.1925, provides that:

“False imprisonment is the wilful detention of another against his consent * * * which restrains the party so detained from removing from one place to another as he may see proper.”

Art. 1177, P.C.1925, Vernon’s Ann.P.C. art. 1177, reads in part: “When any person is falsely imprisoned for the purpose of being removed from the State * * * such false imprisonment is ‘kidnapping.’ ”

The evidence is undisputed that by a subterfuge Reynolds induced Kirby to unlock the door of his (Reynold’s) cell or quarters, whereupon he presented a pistol at Kirby and thereby forced him to accompany Reynolds to the cell or room occupied by appellant, forced Kirby to unlock the door to appellant’s quarters, where they found appellant in bed and asleep. Reynolds awakened appellant and said to him “Let’s get going.” Appellant, barefooted, left the building with Reynolds and Kirby, the latter still intimidated by the pistol in Reynolds’ possession. Under our statute the crime of “kidnapping” was complete when Reynolds wilfully detained Kirby if the detention was for the purpose of removing Kirby from the State. It was not necessary that the removal be consummated. It was sufficient that the purpose to remove existed at the time the unlawful seizure or detention occurred. See People v. Harrison, 261 Ill. 517, 104 N.E. 259.

Reverting now to the principles announced in Middleton v. State, 86 Tex. Cr.R. 307, 217 S.W. 1046, and applying them to the undisputed facts,. — what connection did appellant have with Reynolds’ act which would fix the status of a principal upon appellant? (1) He certainly did not aid by acts nor encourage by words Reynolds in the unlawful seizure of Kirby. (2) He was not keeping watch to prevent the interruption of Reynolds. (3) He was not engaged in procuring aid, arms or means to assist Reynolds while the latter perpetrated the unlawful detention and seizure of Kirby. (4) Appellant was not doing anything to secure the safety or concealment of Reynolds. Appellant slept while Reynolds acted. (5) Reynolds was not appellant’s innocent agent. (6) Assuming that appellant had agreed to and advised the commission of the offense, by Reynolds, can it be said under the circumstances here existing that appellant was "present” when Reynolds took Kirby in charge so as to bring appellant under the sixth designation of a principal? He was in a different room or cell from Reynolds, not shown to be in sight of the place where Kirby was seized, and therefore, not in a position to have given signals, to Reynolds even had appellant been awake. Likewise, if awake, he was in no position to have gone to Reynolds’ aid, if such aid had been necessary. We quote from 16 Corpus Juris, page 126, § 114, as follows: “Constructive Presence. The presence at the place and time of the crime required to make one a principal in the second degree, or an aider and abettor, may be constructive, as where one, acting with another in the pursuance of a criminal design, is so situated when the crime is committed as to be able to assist in its commission. As a general rule, one is to be deemed constructively present if he is at the time performing any act in furtherance of the felony or is in 'a position to give information to the principal which would be helpful to the end in view, or would prevent others from doing any act by way of warning which would put an obstacle in the way of the consummation of the crime or render its consummation more difficult; and it is immaterial at what distance he may be from the scene of the felony. And a fortiori he is to be deemed constructively present if he is near enough to render assistance if need be and to encourage the actual perpetration of the felony.’’ See also 22 C.J.S., Criminal Law, § 86.

This principle was recognized in Pruitt v. State, 91 Tex.Cr.R. 189, 237 S.W. 572, 574. The question there was whether accused was a principal in a robbery. This court said: “He was present in the sense that he could see what was going on, and was near enough to have interposed in behalf of Alford to aid him in carrying out his unlawful purpose if an interruption of any kind had arisen.”

In principle the same, is Rowan v. State, 97 Tex.Cr.R. 130, 260 S.W. 591. To hold appellant responsible for Reynolds’ act because he took advantage thereof to escape from the Training School and flee with the others would be opposed to the holding in Walker v. State, 29 Tex.App. 621, 16 S.W. 548, against the doctrine of ratification of a criminal act so as to become a principal therein.

After mature deliberation we have reached the conclusion that under the undisputed facts appellant cannot in law be held to have been “present” when the offense was committed by Reynolds, and therefore was not a “principal” in such offense. In reaching this conclusion the case of Coomer v. State, 97 Tex.Cr.R. 588, 262 S.W. 495, has not been overlooked. Coomer and two other parties were engaged in the unlawful manufacture of whisky. They had agreed not to submit to arrest. All of them were armed. Accused had temporarily laid his gun aside and gone a few steps from his companions. At this time officers appeared and arrested accused. He immediately gave a signal to his confederates who fired upon and killed one of the officers. Accused urged that he could not have been, a principal in the killing because he was under arrest at the time it occurred. The contention was overruled on the ground that he was physically present, and although he had been placed under arrest he aided the other confederates by giving the signal upon which they acted, from which acts the death of the officer resulted. Upon the facts Coomer’s case is readily distinguishable from the one presently considered.

The other proposition urged upon motion for rehearing is that the trial court should have charged upon circumstantial evidence. The, trial court’s attention was called to the omission of an instruction on circumstantial evidence by proper exception to the charge.

All of the State’s criminative evidence comes from Mr. Kirby, and we find only one statement from him upon which a contention could be based that the evidence of appellant’s connection with the main crime was direct. The statement referred to follows: “While we were out they discussed that they had made the arrangements that evening about what they were going to do, him and Bulldog (Reynolds) and Ernie (appellant) when talking to those Houston boys said he told them that he told Bulldog» to be sure and let him out when he got out.’’ It will be noted that the foregoing is not an unequivocal admission of. appellant that he had agreed to kidnap Kirby for the purpose of taking him out of the State. In order, to take the case out of the rule of circumstantial evidence, the admission must be unequivocal as to the commission of the crime. If it is only by inference from the admission that it can be determined that accused committed the crime, the court should charge on circumstantial evidence. See Branch’s Ann.Tex.P.C., Sec. 2478, p. 1341 and cases there cited. The other facts clearly show, we think, that appellant was not a party to any understanding with the boys (called the Houston boys) who furnished the “get away car’’ that appellant would be with Reynolds. When Reynolds caused Kirby to unlock the door to appellant’s quarters, he was asleep and left without putting on his shoes. The car was not immediately contacted, and appellant apparently was unaware that one was expected because he kept insisting that they could not escape on foot, and suggested more than once that they go-to town and secure a car. It further appears that appellant’s presence with Reynolds was a surprise to the “Houston boys” because they debated whether they would let him go with them. It was only after Reynolds strongly recommended him, and upon appellant’s promise to do as he was directed, that they finally consented to take him along with them. The first active part appellant ever took in guarding Kirby occurred at Corsicana where appellant with a shotgun, and one of the “Houston boys” with a pistol kept Kirby under guard while the others went with the car after gasoline. We believe, under all the facts and circumstances, that the court should have charged on circumstantial evidence.

For the reasons stated the writer believes appellant’s motion for rehearing should be granted, the judgment of affirmance should be set aside, and the judgment of the trial court should be reversed and the cause remanded, and therefore, respectfully enters his dissent to the conclusions of his brethern.

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

CHRISTIAN, Judge.

It appears from the application for leave to file second motion for rehearing that, with one exception, it reiterates contentions made and squarely met in the opinions of the court. While not discussed in the opinions of the court, the question whether appellant was entitled to the instruction mentioned in his application for leave to file second motion for rehearing was considered by the court, and the conclusion reached that the evidence failed to raise an issue calling for such instruction.

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

PER CURIAM.

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


source: Caselaw Access Project

author: BEAUCHAMP, Judge.

license: Public Domain

text:
    FRANKLIN v. STATE.
    No. 21239.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1940.
    Henry Taylor, of Temple, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant plead guilty in the district court of Bell County to a charge of burglary and, having waived a trial by jury, was assessed a penalty of three years in the penitentiary by the judge of the court.

The only evidence introduced in the case was the written confession of the appellant which he had previously made.

Article 10a of Vernon’s Annotated Code of Criminal Procedure provides that a defendant in a criminal prosecution for a felony less than capital shall have the right upon pleading guilty to waive a trial by jury. It is conditioned, however, that he must make a personal appearance in open court; that it must be with the approval of the court and of the attorney representing the state, entered of record. If he has no attorney the court must appoint one to represent him. Art. 12 of the Code further provides that it shall be necessary for the “State to introduce evidence into the record showing the guilt of the defendant * * *, and in no event shall the person charged be convicted upon his plea of guilty without sufficient evidence to support the same.” This provision is susceptible of no other construction than that herein given.

Upon a plea of guilty before the court in such cases the state must produce evidence sufficient to support the finding of guilt and the punishment assessed. The confession may be used to aid the proof of the corpus delicti, but not to establish it. An extrajudicial confession, alone, without proof of the corpus delicti is insufficient to sustain a conviction. The corpus delicti consists of two things — first, a criminal act, and second,the defendant’s agency in the commission of such act. Branch’s Annotated Penal Code, Sec. 1890, page 1049, and authorities there cited.

It will be observed that in this case there is no proof that the burglary was committed other than that which is cm-, braced in the confession itself. While a jury would be given the power to find -him guilty under such confession and plea the act of the legislature permitting a defendant to waive a jury specifically did not delegate to the court such power, but provided, to the contrary, that evidence must be heard.

Appellant’s contention must be sustained. The, judgment of the trial court is reversed and the case remanded.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    CARTER v. STATE.
    No. 21024.
    Court of Criminal Appeals of Texas.
    May 29, 1940.
    Rehearing Denied Nov. 27, 1940.

      Kahn & Branch, John N. Snell, Sr., and Kenneth H. Aynesworth, Jr., all of Houston, for appellant.
    ' Dan W. Jackson, Cr. Dist. Atty., and Allie L. Peyton, Asst. Cr. Dist. Atty., both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The record shows that appellant was a member of the jury before whom Vincent Vallone was tried in the Criminal • District Court No. 2 of Harris County, Texas, for the murder of J. I. Thomas. The jury found Vallone guilty of murder with malice and assessed his punishment at confinement in the state penitentiary for life. Vallone, in due time, filed a motion for a new trial, and subsequently an amended motion for a new trial in which he set up, among other grounds, that some one or more of the jurors, while deliberating on their verdict, stated that the defendant, Vallone, had been accused of tfie murder of one Navarro; that no evidence thereof had been introduced on the trial. Appellant made an affidavit in which he stated the facts above set forth to substantiate the averments in the motion for a new trial. By written pleading, the State denied the averments in the motion, contested the same and supported its pleading by the affidavits of the other eleven members of said jury.

The perjury indictment in this case is based upon the alleged false affidavit of the appellant Carter.

Appellant challenges the sufficiency of the indictment upon the following grounds :

“1. Because the indictment in this case is fatally defective in substance, and therefore defendant suggests to the court that the judgment has not been legally rendered against him.”
“2. Because the indictment herein is defective in substance because it charges no offense against the laws of this State.”
“3. Because the indictment herein is defective in substance because there is no allegation that there was any issue made on the amended motion for a new trial in the case of State of Texas v. Vincent 'Val-lone.”
“4. Because the indictment herein is defective because there is no -allegation that the affidavit mentioned in the indictment was material to any issue.
“5. Because the indictment herein is defective because it does not allege that there was any issue joined on the hearing of the motion for new trial.”
“6. Because the indictment is defective because there is no allegation that the affidavit was to be used or was used as evidence, and if the affidavit was not used as evidence, then it, with the motion, was but a pleading, and would not substantiate the motion merely because it was attached to the amended motion for a new trial.”

Omitting the formal parts, the indictment reads as follows: “That on the 16th day of October, A. D., 1939, in said county and state, in the Criminal District Court Number Two of Harris County, Texas, then in session, and of which said court Langston G. King was then and there the legally qualified judge, there was pending a certain criminal judicial proceeding wherein the State of Texas was the plaintiff and one Vincent Vallone was the defendant, wherein said Vincent Vallone was duly and legally charged by indictment with having on or about the 29th day of August, A. D., 1939, in the County of Harris and State of Texas, with malice aforethought, voluntarily killed J. I. Thomas by shooting him with a gun, and of which said judicial proceeding the said Court then and there had jurisdiction, and wherein issue was then and there duly joined between the said State of Texas and the said Vincent Vallone, before the said judge and a jury was duly organized to try said issue, of which said jury John T. Carter was then and there a member, duly selected and sworn to serve thereon; and, the said Vincent Vallone having been duly .arraigned and evidence having been adduced by both sides, and both sides having rested and the Court having charged the jury, and the jury having retired to deliberate on its verdict in said cause, the said jury then and there duly returned into Court its verdict in said cause as follows: ‘We, the jury, find the defendant, Vincent Vallone, guilty of murder as charged and assess his punishment by confinement in the State penitentiary for life’; and thereafter on the 20th day of October, 1939, within two days from said conviction, the said Vincent Vallone duly filed his original motion for a new trial, and on the 31st day of October, 1939, before the expiration of the term of said Court the said Vincent Vallone duly filed in said Court his amended motion for new trial in said cause, setting forth in said motion as alleged grounds for granting a new trial, among others the following: ‘Because the jury after having retired to deliberate upon this case, received other testimony of a material nature in this, that the jurors stated that the defendant was accused of the murder of one Navarro, when there was no testimony in the entire case, directly or indirectly, intimating that the defendant was ever accused of such an offense, and the defendant asserts that he had never been arrested or indicted for said killing, nor has any kind of a charge been made in any court charging him with such an offense. That the killing of Navarro was never mentioned during the trial, and that said testimony so given by the jurors was before they reached the verdict and in the absence of the defendant and without any opportunity of cross-examination, said statement of accusing .the defendant of having killed Navarro was prejudicial, was inflammatory to the minds of any jurors who had never heard thereof and was calculated to increase the penalty which it did, and that said statement was evidently made for the purpose of influencing said jurors who were for a lesser penalty to agree to a higher penalty and same was used by the jury not alone to affect defendant’s guilt, but to induce those jurors who were for a lesser penalty to agree to a life sentence, and the defendant again refers the court to the affidavit of said jur- or, J. T. Carter, hereto attached and mentioned in the preceding paragraph’; and there was then and there attached to said amended motion for a new trial in said cause, and filed with said motion by said Vincent Vallone as a part of said motion and as supporting evidence of the allegations of said motion, an affidavit of the said John T. Carter, who had served as a juror in the trial of said cause, said affidavit being then and there filed and presented to the Court by the said Vincent Vallone in an effort to procure the granting of a new trial in said cause; and pri- or to the filing of said amended motion for a new trial and the filing of said affidavit in connection therewith, to-wit, on the 30th day of October, A. D., 1939, in said Harris County, Texas, the defendant herein, John T. Carter, did then and there make and swear to said affidavit, same being a statement in writing, and did take oath to the truth of the said statement by then and there personally appearing before Catherine F. Leonard, a notary public in and for Harris County, Texas, a person authorized by law to administer oaths and the said John T. Carter did then and there take his corporal oath before said notary public, which said oath was duly administered to him by said notary public, and was required by law and was necessary for the ends of public justice, and under the sanction of said oath the said John T. Carter did then and there, wilfully and deliberately state in writing that during the deliberations of the jury in said cause the jury and the members thereof discussed the case where the defendant in said cause, Vincent Vallone, had been accused of the murder of one Navarro, which said statement was material in said cause for the purpose of substantiating the allegations contained in said amended motion for a new trial, and the said John T. Carter then and there knew that said affidavit and statement would be presented to the said Court in connection with said amended motion for new trial; whereas in truth and in fact the jury and the members thereof did not discuss the case where the defendant, Vincent Vallone, had been accused with the murder of one Navarro, and did not discuss or mention the killing of one Navarro; which said statement so made by the said John T. Carter was wil-fully and deliberately false, and the said John T. Carter knew the same to be false when he made it.”

The first two grounds urged by appellant against the sufficiency of the indictment are general, and in our opinion, are covered by the more specific objections Nos. 3, 4, S and 6. Consequently, we shall first discuss the third objection and the remainder in their numerical order.

Appellant claims that there is no allegation in the indictment to the effect that there was any issue made on the motion for new trial in the case of Vincent Vallone v. State of Texas, Tex.Cr.App.,—S.W.2d —, Looking to the indictment, we note that Vincent Vallone, in his amended motion for a new trial, set up matters relating to the misconduct of the jury which, if true, might have entitled him to a hew trial, and to this motion, Vincent Vallone attached the affidavit of the appellant substantiating the aver-ments therein. The motion, together with the affidavit of the appellant supporting the averments therein, was required by law to entitle him to a hearing thereof. Consequently, an issue was raised as against the validity of the verdict of the jury and the judgment of the court based thereon. It was charged in the indictment that the appellant, John T. Carter, under the sanction of his oath, did then and there wilfully and deliberately state in writing that during the deliberation of the jury in said cause the jury and the members thereof discussed the fact that Vincent Vallone had been accused of the murder of one Navarro, which said statement was material in said cause for the purpose of substantiating. the allegations contained in the motion for a new trial and that the same were false. It is further charged that John T. Carter then and there knew that said affidavit and statement would be presented to the court in connection with said amended motion. This, we think, was a sufficient averment showing that an issue was made by the motion as against the validity of the verdict of the jury and the judgment of the court thereon.

Article 302, P.C., defines perjury as follows : “Perjury is a false statement, either' written or verbal, deliberately and wil-fully made, relating to something past or present, under the sanction of an oath, or such affirmation as is by law equivalent to an oath, where such oath or affirmation is legally administered, under circumstances in which an oath or affirmation is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice.”

Article 306, P.C., reads as follows: “All oaths or affirmations legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, or before a grand jury, are included in the description of perjury.”

We think that the third ground of objection urged against the indictment is without merit. See Beach v. State, 32 Tex.Cr.R. 240; 22 S.W. 976; Galindo v. State, 129 Tex.Cr.R. 532, 89 S.W.2d 990.

The appellant’s next contention is that the indictment is fatally defective because there is no allegation that the affidavit mentioned in the indictment was material to any issue. An inspection of the indictment will disclose that it charges that John T. Carter did then and there make and swe.ar .to an affidavit before Catherine F. Leonard,- a notary public in and for Harris County, Texas, a person authorized to administer oaths, and did then and there take his corporal oath before said notary public, which oath was duly administered to him by the said notary public and was required by law and was necessary for the ends of public justice and under the sanction of said oath the said John T. Carter did then and there wilfully and deliberately state in writing, etc., for the purpose of substantiating the allegations contained in said amended motion for a new trial and the said John T. Carter then and there knew that said affidavit and statement would be presented to the court in connection with said amended motion for a new trial. We think this is a sufficient averment that an issue was made by the filing of said amended motion against the validity of the verdict of the jury and the judgment of the court thefeon. We overrule the appellant’s contention.

The next ground urged against the sufficiency of the indictment is that there is no allegation that the affidavit mentioned in the indictment was material to any issue. We are. not in accord with the appellant’s contention. The indictment charges that it,was necessary for the ends of public justice. If it was, then it was material. And the indictment further charges that said statement in the affidavit was material in said cause for the purpose of substantiating the allegations contained in said motion for a new trial. It is not necessary, we think, that the indictment should have further charged that it was material. If the facts which showed it to be material are sufficiently charged to show their materiality, this is' deemed sufficient. In support of what we have said here, we refer to the cases of Bell v. State, 75 Tex.Cr.R. 401, 171 S.W. 239; Tellis v. State, 42 Tex.Cr.R. 574, 61 S.W. 717.

The fifth ground urged against the indictment is that it does not charge that there was any issue joined on the hearing of the motion for a new trial. We do not deem it necessary to discuss the question here presented. We arp of the opinion that what we have heretofore said relative to the issue joined makes it unnecessary for us to further discuss the question.

The sixth ground of objection to the indictment is that there is no allegation that the affidavit was to be used or was used as evidence, and if the affidavit was not used as evidence, then it, with the motion, was but a pleading and would not substantiate the motion merely because it was attached thereto. It will be noted that it was charged in the indictment that it was the affidavit of the said John T. Carter, who had served as a juror in the trial of said cause, said affidavit being then and there filed and presented to the court by the said Vincent Vallone in an effort to procure the granting of a new trial in said cause. We think that under the statute defining perjury, which we have hereinabove set out, it was not necessary that the affidavit be introduced in evidence if it was attached to the motion for a new trial. The affidavit, together with the motion, was presented to the court with the view and for the purpose of' obtaining a new trial on the facts therein stated and thus brought it within the purview of the state.

By Bill of Exception No. 1 appellant complains of the action of the trial court in permitting the State to offer in evidence Paragraph 11 of the amended motion for a new trial filed by Vincent Vallone in the case of State of Texas v. Vincent Val-lone then pending in said court. Appellant objected thereto on the ground that there was no allegation in the indictment that any issue was joined between the State and the defendant on the hearing of the motion; that there is no allegation in the indictment that any controversion was filed or that any answer was filed by the State or that any issue was joined on the hearing for a new trial; that there is no averment that the affidavit was material to any issue raised on the hearing of the amended motion. The court overruled the objection and permitted the State to introduce in evidence said Paragraph 11 of said amended motion, to which action of the court the appellant excepted. We see no error reflected in this bill of exception. Hence, the same is overruled.

By Bill of Exception No. 2 appellant complains of the action of the trial court in permitting the State to offer in evidence the affidavit of the appellant made and sworn to before Catherine F. Leonard,a notary public in and for Harris County, Texas, on the 30th day of October, 1939, and which affidavit was attached to the motion of Vincent Vallone for a new trial, to which defendant objected because there is a variance between the indictment and the evidence offered in this: That the indictment merely alleges that the defendant, John T. Carter, made the affidavit which was attached to the amended motion and the indictment failed to state that the affidavit of the said John T. Carter was set out in haec verba or the substance thereof, and merely offering the two paragraphs above quoted would be a variance and not admissible and could not be the predicate of this indictment. And the defendant further objected because an affidavit which forms the basis of a perjury charge must be set out in haec verba or the substance thereof; that the indictment does not undertake to set it out in haec verba, nor does it undertake to set out the substance thereof, nor does the indictment set out any particular paragraph of the affidavit by saying, “among other things stated in the affidavit”, and is a clear variance. We do not think that it is necessary to set out the affidavit of Carter in haec verba. It would seem to be sufficient to base an allegation of perjury upon the same material averments in the affidavit as in the motion for a new trial which was filed, because to set out an entire affidavit in haec verba might include averments which are not false and therefore would not be a basis for a charge of perjury. We note that it is charged in the indictment in part as follows: “The said John T. Carter did then and there, wilfully and deliberately state in writing that during the deliberations of the jury in said cause the jury and the members thereof discussed the case where the defendant in said cause, Vincent Vallone, had been accused of the murder of one Navarro, which said statement was material in said cause for the purpose of substantiating the allegations contained in said amended motion for a new trial, and the said John T. Carter then and there knew that said affidavit and statement would be presented to the said Court in connection with said amended motion for new trial; whereas in truth and in fact the jury and the members thereof did not discuss the case where the defendant, Vincent Vallone, had been accused with the murder of one Navarro, and did not discuss or mention the killing of one Navarro.”

Thus, it will be noted that that part of the affidavit upon which the perjury was assigned is set out in substance, and the affidavit which was admitted in evidence over the appellant’s objection, was pertinent in support of the allegations in the indictment. It seems to be the established rule in this state that statements not alleged to be false and on which the State has not assigned as perjury may be introduced on trial if they tend to show that the false statement on which the perjury is assigned was made deliberately and wilfully. See Jefferson v. State, Tex.Cr.App., 29 S.W. 1090; McDonough v. State, 47 Tex.Cr.R. 227, 84 S.W. 594, 597, 122 Am.St.Rep. 684. We think that under the rule. announced in the cases cited, it was admissible. In the case of McDonough v. State, supra, this court, among other things, said: “While perjury was not assigned on any statement made at the trial by appellant, his parol testimony delivered during said trial tended to shed light upon his intent, as to his testimony in the deposition on which the assignment of perjury was based.”

The court held in that case that the testimony of C. K. Lee as to matters detailed by McDonough in his cross-examination on the trial of the civil suit was admissible.

By Bill of Exception No. 3 appellant complains of the remark by the Assistant District Attorney in his closing argument to the jury in which he used the following language: “We can’t bring you any more, because there were only twelve men in that jury room; we couldn’t bring in another witness.”.

Appellant objected to that remark on the ground that it was an allusion and reference to the appellant’s failure to testify. The bill shows that upon the trial of the case of the State of Texas v. Vincent Val-lone the appellant was a member of the jury which convicted Vallone of the murder of J. I. Thomas. The record further discloses-that Vincent Vallone filed a motion for a new trial based upon alleged misconduct of the jury which we have herein set forth in substance. The appellant, Carter, made an affidavit in which he set forth the acts constituting the misconduct of the jury which are in substance and effect as charged in the motion. This affidavit was attached by Vallone to his motion for a new trial and upon a hearing thereof was presented to the trial court. To further substantiate the allegations in the motion the appellant, Carter, took the witness-stand and testified to the alleged acts of misconduct of the jury. By a written reply, the State controverted the motion for a new trial and in support thereof offered the affidavits of the other eleven jurors who were members thereof with the appellant. On the trial of the instant case, the State introduced all of said eleven jurors who testified that neither of them mentioned the fact that Vallone had been accused with the murder of Navarro, nor did they, or either of them, hear the appellant, Carter, make such statement or make any reference thereto while the jury were deliberating upon their verdict. The State also offered in evidence the affidavit of the appellant, Carter, to which reference has heretofore been made. The argument complained of was based upon the testimony of the eleven jurors and the affidavit of appellant which was attached by Vallone to his motion for a new trial. Consequently, all the witnesses who had any knowledge of what transpired in the jury room during the time the jury were considering their verdict in the case of Val-lone v. State were before the court. The District Attorney had the right to discuss the testimony given by each of the eleven jurors and also the affidavit made by appellant. Although appellant did not testify in his own behalf, it occurs to us that in order to reach the conclusion contended for by appellant from the remark complained of, it would require a stretch of human imagination. It seems to be the rule that before the language of the prosecutor will be sustained as an indirect allusion to the failure of the accused to testify, such implication must be a necessary one. See Nichols v. State, 110 Tex.Cr.R. 432, 10 S.W.2d 109; Lowry v. State, Tex.Cr.App., 137 S.W.2d 785; Kennington v. State, 120 Tex.Cr.R. 192, 49 S.W.2d 776; Boone v. State, 90 Tex.Cr.R. 374, 235 S.W. 580. Here, as in the case of Lowry v. State, supra, the District Attorney discussed the evidence as it actually existed and he made no allusion to the fact that the defendant could have changed it by his own testimony, nor is there such an inference; neither is there any criticism because the defendant failed to produce any witnesses or any testimony.

All other matters complained of have been examined by us and are deemed to be without merit.

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

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant renews his attack upon the indictment on the general ground that it fails to allege the materiality of the alleged false statement contained in appellant’s affidavit which was attached to the motion for new trial. We have again critically examined the indictment- — -which is incorporated in our original opinion — and fail to find any vice therein.

In his valuable work (Branch’s Ann.Penal Code) the author on page 474 states a principle supported by the authorities cited, as follows: “If the indictment fails to directly allege that the false statement was material to the issue, it cannot be sustained, unless the testimony of itself, and without extraneous aid, be so clearly material as that it would be supererogation to aver its materiality; or unless the facts and circumstances * * * 'are so alleged as to manifest its materiality. Smith v. State, 1 Tex.App. 620; Martin v. State, 33 Tex.Cr.R. [317], 319, 26 S.W. 400; Buller v. State, 33 Tex.Cr.R. [551], 553, 28 S.W. 465; Weaver -v. State, 34 Tex.Cr.R. 554, 31 S.W. 400; Crow v. State, 49 Tex.Cr.R. 103, 90 S.W. 650; Barber v. State, 64 Tex. Cr.R. 96, 142 S.W. [577], 579 * * * Bell v. State, [75 Tex.Cr.R. 401], 171 S.W. 239; Scott v. State, [75 Tex.Cr.R. 396], 171 S.W. 243.” Or, as stated in the Smith case, 1 Tex.App. 620: “Where the materiality of the evidence alleged to be false is shown by the nature of the case, no express averment of its materiality is necessary.”

Applying that principle to the present indictment we think the averments taken as a whole unquestionably show the materiality of the alleged false statement. Moreover, we observe that after averring the alleged false statement it is particularly alleged “which said statement was material in said cause for the purpose of substantiating the allegations contained in said amended motion for a new trial.”

We think there was no failure in the evidence to show the materiality of the alleged false statement in the affidavit made by appellant.

We discover no basis supporting appellant’s contention that the court should have charged on circumstantial evidence. It is true as pointed out by appellant that the eleven other jurors testified that if any mention was made in the jury room while considering Vallone’s case that he had been charged with or accused of the murder of one Navarro they never heard such thing referred to. Appellant apparently overlooks the fact that each of the eleven jurors categorically denied that he mentioned any such thing.

Appellant excepted to the court’s charge because it omitted to tell the jury “that the record in the main case, that is, the Val-lone case, was admitted solely to show that •such a case was pending against the said Vallone, but that the records in the Vallone case should not be considered by the jury as tending to prove the charge of perjury against the defendant.” 'We are cited in the motion for rehearing to Higgenbotham v. State, 24 Tex.App. 505, 508, 6 S.W. 201, as supporting appellant’s position that the failure of the court to respond to the foregoing objection to the charge was reversible error. There is no doubt that in some cases a failure to so limit certain evidence would be improper and the Higgenbotham case, supra, furnishes such an instance.

Under the present record we fail to find how any part of the record in the Vallone case which was introduced in evidence by the State in this trial could possibly have been utilized by the jury to the hurt of appellant on the charge of making .a false affidavit which was attached to an amended motion for new trial in Vallone’s •case. Therefore, the failure of the court to limit such evidence does not appear to •present a serious question. Art. 666, C.C. P., would seem to have application here. We note in this connection that the court ■did incorporate in his instruction to the jury the following: “* * * You are charged that the fact that Vincent Vallone was tried and convicted for the offense of murder is not evidence of the guilt of this ■defendant in this case.”

In addition thereto at appellant’s request he gave a special charge as follows: “You are instructed that you must not mention ■or discuss in your retirement whether or not a new trial was granted or refused in the Vallone case. Keep silence on that .subject.”

The other matters urged in the motion for rehearing were sufficiently discussed in ■our original opinion.

Appellant’s motion for rehearing is overruled.

       Not released by court at date of publication.


author: NORVELL, Justice.

text:
    ACKERMANN et al. v. BARTHOLOMAE et al.
    No. 10762.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1940.
    D. A. McAskill, A. William Sasse, Gus B. Mauermann, and Albert C. Buss, all of San ' Antonio,' for appellants.
    Charles W.indberg, Jr., and Brown & Brooke, all of El Paso, for appellees.
   NORVELL, Justice.

Appellants are the heirs of Natalie Bar-tholomae, deceased. Appellees, Ernst J. Bartholomae (a brother) and Mrs. Emma Baer (a sister), are the heirs of Wm. G. .Bartholomae, deceased. Ernst J. Bartholo-mae is also administrator of his deceased brother’s estate. Natalie and Wm. G. Bar-tholomae were husband and wife, had no children, and both died intestate, the wife predeceasing the husband. The property involved consists of two tracts of land located in Bexar County, and referred to as the Live Oak Street property and the Kayton Avenue property. Appellants brought an action of trespass to try title. Judgment was entered for appellees after a trial to the court without a jury. Findings of fact and conclusions of law were filed. The case is before us on two assignments of error, one assignment relating to each of the properties involved.

We first consider the Live Oak Street property. We take our statements from the trial court’s findings which have been examined and approved by us. The Live Oak Street property was the separate property of Natalie Bartholomae. She and her husband conveyed the same to J. M. Watson and Chas. C. Upham, retaining the superior legal title and á vendor’s lien to secure the payment of a $27,400 purchase-money note. Watson and Upham in turn conveyed the property to W. E. Luter.

The purchase-money note was assigned by Bartholomae and wife to Petrich-Sauer Lumber Company as collateral security for a $6,000 note executed by them.

Natalie Bartholomae died and thereafter Wm. G. Bartholomae completed the payment of the $6,000 note originally payable to the Lumber Company, and the unpaid balance of the $27,400 note was re-assigned to him.

In settlement and payment of the note, Bartholomae accepted a conveyance of the Live Oak Street property from the beneficiaries under the last will and testament of W. E. Luter,. deceased. He also received a conveyance from the independent executor of the Luter estate, reciting that the consideration therefore was the cancellation of the unpaid balance of the purchase-money note. Some time after • this transaction, Wm. G. Bartholomae died.

Under their first assignment of error, appellants contend that Natalie Bartholomae retained the “superior legal title” to the property in the conveyance to Watson and Upham. That she never conveyed it to the Petrich-Sauer Lumber Company. That upon her death one-half of such title was inherited by appellants, and they are now entitled to one-half the property. The briefs of both parties contain discussions as to whether or not the superior legal title passed from Natalie Bartholomae to the Lumber Company, and thence by various conveyances and assignments to Wm. G. Bartholomae. It it not necessary for us to pass on these contentions. We may assume that the superior legal title did not pass out of Natalie Bartholomae by the assignment to the Lumber Company. Upon her death one-half of this title passed to her husband, Wm. G. Bartholomae, and the other one-half passed to appellants, under the provisions of Article 2571, Vernon’s Tex.Civ. Stats. The purchase-money note was personal property and under said article passed to the husband.

The executor and beneficiaries of the Luter estate paid that note by conveying their interest in the property to Wm. G. Bartholomae. By this transaction, the outstanding superior legal title which had its origin in the deed to Watson and Upham, terminated, and Wm. G. Bartholomae became the owner of the property in fee simple. Atteberry v. Burnett, 102 Tex. 118, 113 S.W. 526; Rooney v. Porch, Tex.Com.App., 239 S.W. 910; Evrage v. Lane, Tex.Civ.App., 21 S.W.2d 594; 43 Tex.Jur. p. 236, § 143. Upon Bartholomae’s death his brother and sister inherited the property under the provisions of Article 2570, Vernon’s Tex.Civ. Stats. Appellants’ first assignment of error is overruled.

By- their second assignment of error, appellants contend that the evidence shows that the Kayton Avenue property was purchased with the separate funds of Natalie Bartholomae and was therefore her separate property. That they are entitled to judgment for a one-half interest therein by virtue of the terms of Article 2570, supra. This property was purchased during the time Wm. G. and Natalie Bartholomae were husband and wife. The trial court held that there was no satisfactory evidence rebutting the pr-esumption that the tract involved was community property. We have examined the evidence upon the question involved and approve the holding of the trial court. The Kayton Avenue property passed to Wm. G. Bartholomae on the death of his wife, Article 2578, Vernon’s Tex.Civ. Stats., and thence to Ernst J. Bartholomae and Mrs. Emma Baer under Article 2570, supra. Appellants’ second assignment is overruled.

The judgment of the trial court is affirmed.


author: LOONEY, Justice.

text:
    DALLAS RY. & TERMINAL CO. v. GOSS.
    No. 12918.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1940.
    Burford, Ryburn, Hincks & Charlton and Sam P. Burford, all of Dallas, for appellant.
    Wright K. Smith, of Dallas, for appellee.
   LOONEY, Justice.

Maude Goss, a passenger on a street car operated by defendant Company, fell to the ground and was injured while alighting therefrom. She brought this action for damages, alleging that the motorman was negligent in raising or elevating the step upon which her foot rested, at the time she was attempting .to alight, throwing her heavily to the pavement and injuring her. The defendant pleaded a general denial, contributory negligence in several respects, and unavoidable accident.

Plaintiff's testimony, in substance, was that, as she was leaving the street car, the motorman caused the outer step, upon which her foot was at the time, to rise, wrenching or jerking off the heel of her shoe, and throwing her to the pavement, resulting in the injuries of which she complained.

On the other hand, the motorman denied that he made any effort to close the door, or raise the step; testifying that, as plaintiff was leaving the car, she had some bundles in her arms and that it seemed as though her ankle turned and the heel of 'her shoe came off, “and she just scooted on down off the front platform out of the vestibule, scooted on down on the ground.” He testified, further that the car door closes and the step rises simultaneously. Mrs. Moore, a passenger, corroborated the motorman to a certain extent; that is, she testified that he made no attempt to close the door on the occasion; that it did not close, or start to close, while plaintiff was getting off the car.

On a proper submission, the jury found the defendant guilty of actionable negligence, in . that, the motorman caused the step of the car to rise while plaintiff’s foot was still resting upon it. The jury also acquitted plaintiff of contributory negligence and assessed her damages at $196.50, for which judgment was rendered in her favor, resulting in this appeal.

Among other propositions urged, defendant insists that the judgment below should be reversed and the cause remanded, because the arguments of counsel for plaintiff were off the record; inflammatory in nature, and highly prejudicial.

The attorney who opened the argument for plaintiff, among other things, said: “Now what evidence is there that the motorman didn’t release the air? He says he didn’t release the air. Maude said she felt the step raise under her foot. She fell. There . is no question about that. No argument about that. The motorman says he didn’t release the air. Could you reasonably expect him to say that he did release the air? Under cross examination by Mr. Smith he said if he had been wrong or had released the. air he would have- told the company. Now, just, reflect a moment on that point. If he hail told the company that he released the air under the circumstances that have been proved in this case, when there was not a soul that got on or off the car except Maude when the accident happened at an. hour of the day when very few passengers were on the car, he wouldn’t have been up there testifying in this case— he would have been discharged a good long time ago.”

Again, counsel who closed the case for plaintiff, among other things, used the following language: “Mrs. Moore (referring to the passenger who testified) was not in a position to and didn’t actually see what happened. The people that were involved were in a better position to know and Mr. Roberson (the motorman) said he didn’t do it, and, frankly, gentlemen, I didn’t expect him to say he did but he said, I believe, if he had he would voluntarily come in and admit it, but gentlemen, I will admit how I have never had one experience when they did admit they did anything wrong.”

In each instance, counsel for the defendant objected to the remarks, the objection was sustained, and the court instructed the jury to disregard same. Qualifying the bill taken to the latter argument, the court said: “In the argument of defendant’s counsel he made the following statement: ‘Gentlemen of the jury, if Mr. Roberson had done the thing they say he did, I believe he would have come down here and told you so. I believe Mr. Roberson would have admitted it had he caused the step to raise before Maude Goss was clear of the step. I do not believe he would have told a story about it.’ ”

The statement of counsel in the opening argument, to the effect^ that, if the motorman had informed the Company (the defendant) that he released the air (causing the step to rise) under the circumstances, “he wouldn’t have been up there testifying in this case — he would have been discharged a good long time ago”, and the statement of counsel, in the closing argument, referring to the testimony of. the motorman, saying “I will admit now I have never had one experience when they (evidently referring to . employes of companies similarly sued) did admit they did anything wrong’’, obviously, ' were entirely outside the record and, in our opinion, prejudicial in nature and harmful; nor do we think that the instruction by the court to the jury, not to consider the remarks of counsel, rendered them harmless.

District Court Rule No. 39 provides that: “ * * * Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel. * * * ”

So long as counsel confines his argument to the evidence, or to a legitimate reply to opposing counsel, the rule' is not violated. We think that the latitude and limitations of an argument were fairly well stated in a dissenting opinion filed in Coleman v. Miller, Tex.Civ.App., 19 S.W. 2d 829, 841. It was there stated that: “ * * * Argument is the professional weapon of the lawyer, when freely and intelligently used, hidden and obscured things are exposed to the light of reason, and so long as confined to evidence, the advocate should be accorded latitude of expression and given free rein to employ his imagination and genius for advocacy. I am not in favor of any rule that, in effect, puts the lawyer in a strait-jacket while arguing the facts of his case, or that would curtail the freedom of discussion, for fear some appellate court may say thus far and no further you should have gone in your comments on the evidence. It is only when the lawyer wanders entirely out of the record, that the rule is violated, but when fairly based on evidence, it can never be- correctly said, legally speaking, that the argument is prejudicial. * ⅜ . * ”

As before shown, the testimony of plaintiff and that of the motorman is conflicting and irreconcilable. Plaintiff testified that she fell and was injured, because the motorman raised the step of the car, upon which her foot rested, just as she alighted from the car. Denying this, the motorman testified that plaintiff’s foot seemed to turn as she was leaving the car, that the heel of her shoe came off, and she scooted or fell out of the vestibule to the ground. In view of this status of the testimony, upon which the decision of the case rested, we think a feather’s weight of extraneous matter, impeaching the testimony of the motorman, would likely cause the jury to give greater weight and credence to the testimony of the plaintiff.

The qualification appended by the court to the last bill of exception shows that counsel for defendant, in stating his belief that the motorman testified truthfully, in our opinion, also was off the record, and, in answering same, plaintiff’s attorney was justified in going out of the record; but, in our opinion, he wandered too far in his reply, in stating that, “I have never had one experience where they (meaning employes of companies similarly sued) did admit they did anything wrong”, thus accentuating the objectionable remarks made in the opening argument.

The governing rule in such situations was stated by Judge Smedley in Gulf, C. & S. F. R. Co. v. Ballew, Tex.Com.App., 66 S.W.2d 659, 663, as follows: “It has many times been held that where improper argument has been made, ‘the adverse complaining party is entitled to reversal of the judgment, as a matter of law, if, under all the circumstances, there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted.’ [Citation of numerous authorities] The same authorities hold that attempts of counsel to withdraw the improper argument and instruction by the court not to consider it do not necessarily render the error harmless.”

As the judgment will be reversed and the cause remanded, we will dispose of other assignments presenting questions that may arise on another trial.

The defendant assigns error on the refusal of the court to submit the issue of “new and independent cause”. We do not think the evidence raised that issue, hence the court did not err in this respect.

Defendant also complains of the refusal of the court to define the phrase “a high degree of care”, employed in instructing the jury in regard to the law of negligence, applicable to the street car company. The court correctly stated the law of negligence applicable to the plaintiff, but in stating the rule applicable to the defendant corporation, said: “By the term negligence, as herein used when referring to the operator of the street car, is meant the failure to use a high degree of care.” The defendant’s objection to the charge, although rather vague, yet, we think, was sufficient to call the court’s attention to its failure to explain or define the phrase “a high degree of care”; hence, it is our opinion that the phrase should have been defined.

The defendant also contends that the court’s definition of “unavoidable accident” was deficient. On this issue, the court said: “By the term unavoidable accident, as used herein, is meant an event which occurs without negligence on- the part of the plaintiff Maude Goss or the operator of the defendant’s street car”. Assuming that, on a subsequent trial, the charge will contain correct definitions of negligence applicable to both plaintiff and the defendant, we think the issue on unavoidable accident, as given, would be sufficient, therefore unobjectionable. See Dallas Ry. & Terminal Co. v. Price, 131 Tex. 319, 114 S.W.2d 859, 860.

The evidence, in our opinion, raises the issue of “unavoidable accident”, as well as the issue of “sole proximate cause”, but it does not follow that both issues should be submitted. If the evidence on a subsequent trial should be substantially the same as reflected by the record before us, we think it would be proper fo'r the court to submit either of the issues named, but not both, as the defendant would not be entitled to slice two defenses from precisely the same facts. See Williams v. Rodocker, Tex.Civ.App., 84 S.W.2d 556, 558; Dallas Ry. & Terminal Co. v. Little, Tex.Civ.App., 109 S.W.2d 289, 293.

For the reason heretofore stated, the judgment of the court below is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: BROWN, Justice.

text:
    SLAY et al. v. DUBOSE et al.
    No. 14128.
    Court of Civil Appeals of Texas. Port Worth.
    Oct. 18, 1940.
    Rehearing Denied Nov. 15, 1940.

      Guinn & Guinn, of Rusk, and S. M. Adams and R. A. McAlister, both of Nacogdoches, for appellants.
    Norman, Stone & Norman, of Jacksonville, and Shook & Shook, of Dallas, for ap-pellees.
   BROWN, Justice.

This is an appeal from a judgment of the district court of Cherokee County, in which a will and a subsequent codicil that were prepared and published by one W. C. Davidson, were admitted to probate and an instrument, purporting to be a later will, which was offered for probate, was denied.

The record discloses that subsequent to the execution of the first will and its codicil, the testator, Davidson, became a non compos mentis, and Hattie E. Boyett, on proper application made in the county court of Cherokee County (in which Davidson had his residence) was appointed guardian of his person and estate. The order of the probate court is dated September 26th, 1938.

The application for letters of guardianship specifically sets forth that the estate, consisting of lands and personalty, is situated in Cherokee County.

About the middle of December, 1938, the guardian, who lived in Nacogdoches County, carried Davidson to said county and rented a room for his occupancy, in a home near where she lived. Davidson died about May 26th, 1939, in said Nacogdoches County.

The application for probate of the original will and codicil was filed in the county court of Cherokee County, and contains the recitation that Davidson was a resident of said county, at the time of his death.

Appellants contested the entire proceedings by presenting a plea in abatement, alleging that Davidson was a resident of Nacogdoches County, when he died, and producing what purports to be a will executed by Davidson subsequent to the will and codicil which were presented for probate.

The proponents of the original will alleged that Davidson was only in Nacog-doches County temporarily, having been brought there by his guardian for a temporary stay. The pleading also specifically set forth the fact that the bulk of Davidson’s estate is situated in Cherokee County.

A jury was demanded and at the conclusion of the taking of evidence, the trial court prepared a charge containing six special issues.

The first required the jury to find whether or not Davidson signed the original will offered for probate; the second made inquiry concerning the testator’s request of the named witnesses to sign the instrument, their signatures thereto and the statement of the testator concerning the instrument; the third and fourth issues are similar to the first and second and relate to the codicil to the original will; the fifth issue inquired as to the signature of Davidson to the will offered by the appellants (contestants) ; the sixth issue was made dependent upon the answer to the fifth.

The charge, as prepared, was not given to the jury because of certain objections and admissions and requests made by appellants (contestants).

They admitted the facts inquired about in issues 1, 2, 3 and 4, and asserted that they are “uncontradicted” and are “proven-without controversy”.

Thus it appears that appellants make no-fight on the bona fides of the original will and its codicil, but that their fight was bottomed on the validity of the subsequently dated document.

No objection was made to issue No. 5, and several objections were urged against issue No. 6.

In one paragraph of appellants’ objections they object: “To the charge in its entirety, because there is only one issue of fact involved in the case, and that is, whether or not the instrument offered by-the contestants is a forgery.”

In connection with the court’s proposed charge, appellants requested the court to give the following: “Special Requested: Issue No. 2: Do you find from a preponderance of the evidence that W. C. Davidson resided in Nacogdoches County, Texas, at the time of his death?”

When the objections noted were made,, and the requested issue quoted was presented, the trial court took appellants at their word, and submitted the following issues: “(1) Do you find from a preponderance of the evidence that when W. C.. Davidson died, his domicile or fixed place-of residence was in Nacogdoches County,. Texas; (2) Do you find from a preponderance of the evidence that W. C. Davidson did sign his name to the writing dated April 25th, 1935, purporting to have been. witnessed by A. B. Burroughs and C. L. Collins?”

Issue No. 2 covers the instrument that appellants seek to have probated as the last will and testament of W. C. Davidson.

The jury answered both issues, “No”.

When the new charge was presented to counsel, appellants offered a number of objections thereto.

On the verdict, the trial court rendered judgment for the proponents of the original will and codicil.

In the motion for a new trial, error is urged because the court did not give the specially requested issue No. 2, quoted supra, and urged that the trial court erred in not “amending and correcting and modifying his charge in line with the contestants' exceptions and objections”, and again set forth all such in haec verba, including all admissions mentioned above, and set forth further that the trial court “does not submit the defensive theory of the contestants on their plea in abatement with respect to whether or not W. C. Davidson was a resident of Nacogdoches County at the time of his death, and in this connection contestants submit special requested issue No. 2”, and set forth further the objection: “To the charge in its entirety because there is only one issue of fact involved in the case, and that is, whether or not the instrument offered by the contestants is a forgery.”

Contestants’ amended motion for a new trial was overruled and an appeal taken to the Court of Civil Appeals for the Texar-kana District, and the cause was transferred to us by the Supreme Court.

The first assignment of error asserts that the trial court erred in overruling appellants’ plea to the jurisdiction because the evidence conclusively shows that at the time Davidson died he was a resident citizen of Nacogdoches County, and not of Cherokee County.

No such assignment of error appears in appellants’ motion for a new trial, and we cannot consider it here, no fundamental error being presented.

If we were called upon tó consider the assignment of error there is no merit in it, because the evidence not only does not conclusively show that Davidson was . a resident citizen, of Nacogdoches County, when he died, but the jury was warranted in finding from the evidence that he did not have his domicile or fixed place of residence in Nacogdoches County, when he died.

There was no contention on the part of any one that Davidson did not have his domicile in either Cherokee County or Nacogdoches County. It is indisputably shown that he had “always” resided in Cherokee County and that he was taken from such county to Nacogdoches County by his guardian, for a temporary stay, only a few weeks after the letters of guardianship were issued and that he died in less than six months after he was taken to Nacogdoches County for the winter.

Davidson’s residence was established when the guardianship letters were issued and the only issue that could have arisen under this record is whether or not his residence, as contemplated by the statute (Art. 3293, R.C.S.), had been changed.

We are of opinion that appellants have openly admitted every material fact except the invalidity of the will they offer for probate, and it is quite certain that, if the burden of proof was erroneously placed upon the contestants in submitting issue No. 1, this error was expressly invited by appellants. Thompson v. Planters’ Compress Co., 48 Tex.Civ.App. 235, 106 S.W. 470, and cases cited.

In submitting issue No. 1, the trial court used the exact language of the statute (Art. 3293, R.C.S.), and objections to the issue on the theory that there is a difference between “domicile” and “fixed place of residence” are without merit. A domicile and a fixed place of residence are synonymous.

We are further of opinion that if the evidence is strong enough to raise an issue of whether or not the guardián intended to change, or did change, the place of residence of her ward from Cherokee County to that of Nacogdoches.- County (and we seriously doubt the premise), then the jury had a right, under such evidence, to find the answer that was returned to issue No. 1.

Furthermore, we desire to say that if there had been a similar issue submitted as touching upon such domicile in Cherokee County, and if the jury had found that Davidson had no such domicile in Cherokee County, nevertheless, the trial court was confronted with the undisputed fact that the “principal property” owned by Davidson was in Cherokee County when he died. Owens v. Stovall, Tex.Civ.App., 64 S.W.2d 360, writ refused, supports our discussion.

All assignments of error urged against issue No. 1 are overruled.

See Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, which supports the contention that contestants assumed (in their plea in abatement) the burden of proof as to the issue of the domicile of Davidson in Nacog-doches County.

We find no merit in any of appellants’ contentions, and the judgment of the trial court is affirmed.