author: MONTEITH, Chief Justice. CODY, Justice

text:
    CARPENTERS AND JOINERS UNION OF AMERICA, LOCAL NO. 213, et al. v. RITTER’S CAFE et al.
    No. 11150.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied April 3, 1941.
    Sewall Myer and Frank Campbell Foúr-my, both of Houston, for appellants.
    Bernard A. Golding and Vinson, Elkins, Weems & Francis, all of Houston, for ap-pellees.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the district court of Harris County granting an application of appellees, Ritter’s Cafe and E. R. Ritter, for a permanent injunction restraining appellants, Carpenters and Joiners Union of America, Local No. 213, and Painters Local Union No. 130, and their members, from picketing or causing to be picketed, and from carrying certain banners, and. placards upon the sidewalks in front of appellees’ place of business at 418 Broadway in Houston, Texas.

Appellants answered by general demurrer, general denial and exceptions. They admitted that they had peacefully picketed appellees’ place of business, but contended that, in doing so, they were exercising their rights of free speech and freedom of the press and that any judgment enjoining them from exercising such rights would be a violation and abridgment of their rights under the Fourteenth Amendment to the Constitution of the United States and Section 8 of the Bill of Rights of the State of Texas, Vernon’s Ann.St.Const.

This is the second appeal to this court in this action. The first appeal, which is reported under the same title in 138 S.W.2d 223, 224, was from an order of the district court of Harris County temporarily enjoining appellants herein from the carrying of the placards complained of and from picketing appellees’ place of business. Ap-pellánts then, as in this appeal, contended that any action by the court abridging their rights of expressing -their views by means of placards on the public sidewalks and from picketing appellees’ place of business would constitute an abridgment of their right of free speech.

This appeal involves the right of a court of equity to permanently enjoin a labor organization from picketing and from expressing their views upon a situation affecting themselves by means of banners and placards on the sidewalk in front of an establishment with which they have no labor dispute and where it is proven that such actions are injurious and prejudicial to the business and property rights of the complaining parties.

. Upon a hearing of appellees’ evidence— no evidence was offered by appellants — it was agreed by the parties that the fact findings, as set out in the opinion of this court in the first appeal herein, were the true facts in the case. On the request of appellees for findings of fact.the trial court filed said findings as his findings of fact and conclusions of law. They are as follows:

“Findings of Fact.
“(1). That the plaintiff E. R. Ritter, at all times material hereto, owned and operated Ritter’s Cafe, located at 418 Broadway, in the City of Houston, Harris County, Texas, and that said Ritter was at such times and is engaged in the cafe and restaurant business in the sale and dispensation of cooked foodstuffs and other incidental commodities, usually and generally offered for sale to the general public by similar cafes and restaurants.
“(2) That in the operation of said restaurant and cafe plaintiff Ritter, at all times material hereto, and for some three years prior thereto, employed as cooks, waiters, and waitresses only members in good standing with Hotel and Restaurant Employees International Alliance, Local No. 808.
“(3) That plaintiff Ritter, in the conduct and operation of said restaurant and cafe, at all times material hereto, had no bone fide labor-dispute with his said employees, as to working conditions, hours of employment or wages, and that plaintiff had no dispute with said union.
“(4) That said Local No. 808 is the only organization having jurisdiction over plaintiffs’ said employees.
“(5) That on-or about November 4, 1939, plaintiff Ritter entered into a written agreement with one W. A. Plaster, a contractor; whereby the latter was to construct and erect a building for said Ritter in the 2800 block on Broadway, which is twenty-four (24) blocks removed from plajntiffs’ said cafe, being some mile, and a half therefrom.
“(6) That the business-agents of defendant-unions called upon plaintiff and asked that a provision be inserted in said contract requiring the contractor to use union labor on said job.
“(7) That shortly after the said Plaster began’ erecting said building .defendants Carpenters and Joiners Local No. 213, and Painters Local No. 130, by and through and upon the advice of their duly authorized, officers and representatives, and by agreement .between them, began a picketing campaign against'plaintiff and his cafe, by having a member of one of said unions walk back and forth on the sidewalk in front 'of plaintiff’s said cafe, and at no other place, carrying a sign or placard bearing the following inscription, or words to this effect:
“ ‘This Place is Unfair to Carpenters and Joiners Union’ of America, Local No. 213, and Painters Local No. 130, Affiliated With American Federation of Labor.’
“(8) That plaintiff at all times material hereto, and for a long time prior theretofore, had employed no carpenters or painters at his said cafe.
“(9) That no building was under construction at'418 Broadway at all times material hereto, nor was any painting being done there.
“(10) That said Local No. 213 and said Local Nq. 130 had no dispute with plaintiff concerning, in any manner, the conduct and operation of plaintiff’s cafe at 418 Broadway.
■ “(11) That no representative of either said Local No. 213 or said Local No. 130, had called upon the said contractor Plaster to request said Plaster or to urge him to use only members of said defendant-locals in the construction of said building in the 2800 block on Broadway.
“(12) That shortly after plaintiffs filed suit for injunctive relief, the defendants, acting jointly and in pursuance of the agreement between them, changed or had changed the wording or inscription on the banner or placard being carried by the picket to the following, or words to this effect :
“ ‘The Owner of This Cafe Has Awarded a Contract to Erect a Building to W. A. Plaster Who is Unfair to the Carpenters Union 213 and Painter Union 130, Affiliated With the American Federation of Labor/
“(13) That the said contractor Plaster had no contract with either of the defendant unions and that no dispute existed, at all times material hereto, between said Plaster and any of his employees engaged in erecting said building.
“(14) That no employee of Ritter’s cafe and E. R. Ritter, and no employee of W. A. Plaster is on strike.
“(15) That the purpose of picketing plaintiff’s cafe at 418 Broadway is for the avowed purpose of forcing and compelling plaintiff to require the said contractor, Plaster, to use and employ only members of the defendant unions on the building under construction in the 2800 block on Broadway.
“(16) That plaintiff’s receipts at his said cafe and restaurant were some sixty (60%) per cent less while said picketing continued than theretofore.
“(17) That plaintiff’s employees, members of said Local 808, quit plaintiff’s employ on the day the picket-line was established after a telephone call from the Secretary of said Local No. 808, and had not re~ turned at the time of the hearing herein.
“(18) That said Local No. 808 withdrew from plaintiff’s cafe its union card after said picketing began.
“(19) That the further effect of said picketing has been to make it impossible for plaintiff to have deliveries made to his cafe by truck-drivers, members of unions not connected with this law suit, of foodstuffs and other commodities necessary to the orderly conduct of his business.
“(20) That the further effect of said picketing is to prevent members of all trades-unions from patronizing plaintiff’s cafe and to erect a barrier around plaintiff’s cafe, across which no member of defendant-unions or an affiliate will go.
“(21) That no violence attended the said picketing of plaintiff’s cafe.
“(22) That defendants and each of them will continue to picket plaintiff’s said cafe unless restrained by order of this Court.
“Conclusions of Law.
“(1) That plaintiff is engaged in a lawful enterprise in a lawful manner in the operation of his cafe and restaurant.
“(2) That the picketing at 418 Broadway constitutes an unlawful invasion of plaintiff’s right to conduct a legitimate enterprise and an attempt to interfere illegally with plaintiff’s right to contract with third, parties.
“(3) That said picketing,, being illegal', and for an unlawful purpose, should be re-strained.”

Article 5152, Revised Statutes of 1925, provides that it .shall be lawful for any and all persons engaged in any kind of work or-labor to associate themselves together and. to form trade unions and other organizations for the purpose of protecting themselves in their respective pursuits and employments.

Article 5153 provides that it shall be lawful for any member of such trade union or other organization to induce or to attempt to induce, by peaceful and lawful means,, any person to accept any particular employment or to enter or refuse to enter or relinquish any employment or pursuit in which such person may be engaged, but that such member or members shall not have the right to invade or trespass upon the premises of another without the • consent of the owner thereof.

Article 4642, Section 1, Revised Statutes of 1925, provides for injunctive relief “where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.”

It is the established law in this state that where a case has been tried without a jury and there was ample evidence in the record to support the findings of the trial court, such findings have the same force and effect as a verdict of the jury on the facts found, and a reviewing court must affirm the trial court’s judgment in the absence of other substantial error. O’Connell v. Johnson, Tex.Civ.App., 122 S.W.2d 649, error refused; New Amsterdam Casualty Co. v. First National Bank, Tex.Civ.App., 134 S.W.2d 470; Guerrero v. United States F. & G. Co.,Tex.Civ.App., 101 S.W.2d 592; 3 Tex.Jur. pp. 1104, 1125, 1143.

In the instant case there is not only no challenge by appellants of the facts on ■ which the trial court based his judgment, but there was an agreement by the parties that the facts found by the court were the true facts of the case.

While our courts, in construing Articles 5152 to 5154, inclusive, which involve the rights and privileges of “Labor Organizations”, have uniformly upheld their right to organize and have legalized the right of picketing with the limited objective of allowing striking-employees who have a bona fide dispute with their employer, to induce, by peaceful-and lawful means, any person to accept any particular employment or to enter or refuse to enter or relinquish any employment or pursuit in which such person may be engaged, a court of equity will, in proper cases affecting labor organizations, grant injunctions where relief is necessary for the preservation of a business or'other property rights. Carter v. Bradshaw, Tex.Civ.App., 138 S.W.2d 187; Gibralter Savings & Building Ass’n et al v. Isbell et al., Tex.Civ.App., 101 S.W.2d 1029; Walker et al. v. Fort Worth Ins. Underwriters’ Ass’n et al., Tex.Civ.App., 79 S.W.2d 661.

In this case the trial court based his judgment on the facts that there had been no bona fide labor dispute of any kind between appellee Ritter and his employees, all of whom were members of a union; that he had employed no carpenters or painters in his cafe, and that neither of appellant unions had any dispute with him concerning the conduct and operation of his cafe at 418 Broadway; that appellee had sustained a substantial loss in the earnings of said establishment in that its receipts were some 60% less during said picketing than theretofore ; that his employees had quit his employ the day said picket line was established and that said picketing had made it impossible to have deliveries made thereto of foodstuffs and other necessary commodities by truck drivers who were members of other unions, and that the actions of appellants had prevented the members of all trades unions from patronizing his cafe and had in effect erected a barrier around it across 'which no member of appellant unions or any of their affiliates would go.

It follows that under the above authorities appellants’ acts were prejudicial to the rights of appellees to such an extent as to authorize the intervention of a court of equity for the purpose of preserving such rights.

As stated by this court, speaking through Justice Graves, in the first appeal herein, Carpenters and Joiners Union et al. v. Ritter’s Cafe, 138 S.W.2d 223, 227:

“ * * * no right of free speech under the fundamental law of either nation or state is transcended by an injunction restraining the picketing of a place of business by persons (whether members of a labor organization or union, or not) who seek either to prevent the public from trading with the picketed place, or to compel its -owner to break a contract which he has with some such disassociated third person.” Carpenters and Joiners Union, etc. v. Ritter’s Cafe, supra; Webb v. Cooks’ Union, Tex.Civ.App., 205 S.W. 465; Cooks’ Waiters’ & Waitresses’ Union v. Papageorge, Tex.Civ.App., 230 S.W. 1086; Texas Motion Picture and Vitaphone Operators, etc., v. Galveston Motion Picture Operators, Tex.Civ.App., 132 S.W.2d 299.
“ ‘ * * * The right of free speech is limited by the constitutional rights of others to acquire and possess property, an instance of which is the right to carry on a business in a lawful way. It has been said that it does not follow that because a single individual may under the constitutional guaranty freely speak and write a,s he pleases without injunctive restraint, an association or combination of persons may lawfully do likewise, as, in such cases, the views expressed are not merely those of the individual, but the express concerted will and desire of a powerful organization.’ See Oakes on Organized Labor, 1927 Ed., p. 884, section 880.

“These appellants have no legal grievance merely because the appellees refused to abrogate a private contract they had with W. A. Plaster to which the appellants were neither parties nor in privity; furthermore, they being such strangers thereto, but at the same time having full knowledge thereof, and of the business being conducted between themselves by the parties thereto, they, as such interlopers, not only would have laid themselves liable in damages to a party thereto for having knowingly induced a breach thereof, had that occurred as a result of their acts (Raymond v. Yarrington, 96 Tex. 443, 72 S.W. 580, 73 S.W. 800, 62 L.R.A. 962, 97 Am.St.Rep. 914, and Brown Hardware Co. v. Indiana Stove Works, 96 Tex. 453, 73 S.W. 800), but did in fact subject themselves to the power of a court of equity in this proceeding to protect the ap-pellees against such- an unwarranted interference with their peaceful contractual relationship with Mr. Plaster; especially so, since obviously no remedy at law could have been adequate, and irreparable injury would probably have resulted, had the interference been permitted to continue. Henke & Pillot v. Amalgamated Meat Cutters, [Tex.Civ.App.], 109 S.W.2d [1083], at page 1085, par. 3, and cited authorities.”

A careful analysis of the authorities cited by appellants convinces us that the holdings relied on therein have no practical application to the facts in the instant case. It follows from these conclusions that the judgment of the trial court should be in all things affirmed; it will be so ordered.

Affirmed.

On Motion for Rehearing.

In their motion for rehearing appellants contend that their original contentions have been upheld by decisions rendered by the Supreme Court of the United States in the cases of American Federation of Labor et al. v. Swing et al., 61 S.Ct. 568, 85 L.Ed. -, and Milk Drivers Union of Chicago et al. v. Meadowmoor Dairies, Inc., 61 S.Ct. 552, 85 L.Ed. -, both of which have been decided since our original opinion in this case was handed down.

From á careful analysis of the facts in each of the cases referred to, it is our conclusion that they do not require a reversal of our original opinion herein.

In the case of the American Federation of Labor v. Swing, the plaintiffs were Ross W. Swing, the owner of a beauty parlor, and his employees. Appellant union attempted to secure a contract with the owner, and, while he was willing for his employees to join the union, he declined to compel them to do so. Thereupon the union picketed his place of business. The Supreme Court of the State of Illinois granted an injunction restraining said picketing for the sole reason that there was no employer-employee dispute between Swing and his employees. 372 Ill. 91, 22 N.E.2d 857. .In reversing the action of the Supreme Court of Illinois, the Court held that it would be improper to dispose of the case otherwise than on the face of the decree under review, which rested on the explicit avowal that peaceful persuasion was forbidden in that state because those who were enjoined were not in Swing’s employ. The Supreme Court, speaking through Justice Frankfurter, said [61 S.Ct. 570, 85 L.Ed.-]: “We are asked to sustain a decree which for purposes of this case asserts as the common law of a state that there can be no ‘peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him. Such a ban of free communication is inconsistent with the guarantee of freedom of speech.* * * The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they arc not in his employ.”

As we interpret the opinion, the Court held that, in the absence of criminal acts or other unlawful conduct under the statutes of a state, a union cannot be enjoined from picketing — in the manner there undertaken — the place of business of an employer with whom it is seeking to contract for its members.

In the case of Milk Drivers Union of Chicago v. Meadowmoor Dairies, Inc., the Supreme Court of the United States affirmed a judgment of the Illinois Supreme Court directing that a permanent injunction be issued restraining the picketing of the retail outlets of the Meadowmoor Dairies. 371 Ill. 377, 21 N.E.2d 308. The dairy sold its products to vendors, who in turn sold them to retail outlets. A labor dispute between the dairy and the union resulted in the retail stores, with whom the union had no labor dispute, being picketed. Certain acts of violence took place during the controversy although the pickets were not guilty of acts of violence. The dairy sought an injunction restraining the picketing of said retail stores. The United States Supreme Court, in its opinion said [61 S.Ct. 554, 85 L.Ed-]: “The question which thus emerges is whether a state can choose to authorize its courts to enjoin acts of picketing in themselves peaceful when they are enmeshed with contemporaneously violent conduct which is concededly outlawed. * * * But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution. * * * A state may withdraw the injunction from labor controversies but no less certainly the Fourteenth Amendment does not make unconstitutional the use of the injunction as a means of restricting violence. We find nothing in the Fourteenth Amendment that prevents a state if it so chooses from placing confidence in a chancellor’s decree and compels it to rely exclusively on a policeman’s club. * * * We merely hold that in the circumstances of the record before us the injunction authorized by the supreme court of Illinois does not transgress its constitutional power. * * * But just as a state through its legislature may deal with specific circumstances menacing the peace by an appropriately drawn act, Thornhill v. Alabama, supra [310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093], so the law of a state may be fitted to a concrete situation through the authority given by the state to its courts. This is precisely the kind of situation which the Thornhill opinion excluded from its scope.”

In effect, the court in this case held that, under the constitution, the right of free speech is not unlimited but that, under a proper state of facts, state courts are vested with authority to enjoin picketing by a labor organization in protecting the. rights of its citizens where such picketing is “enmeshed” with violence or where it involves such conduct as the state is authorized to declare unlawful or the breach of such laws as are necessary for the protection and welfare of its residents.

Except in so far as their scope is limited by R.S. Articles 5152, 5153 and 5154, and Article 1643 of the Penal Code, R. S. Articles 7426 and 7428 and Articles 1632, 1634 and 1635 of the Penal Code, which prohibit any attempt to create restrictions in the free pursuit of any business or any agreement or threat to boycott a person or association by a refusal to buy from or sell to him or it and to induce others to do so, are in full force and effect in this state.

In the instant case, appellants directed a picketing campaign against appellee with whom the union had no labor dispute and with whom it neither wished, nor was eligible, to contract in any way, for the purpose of forcing a settlement of a dispute between appellant union and W. A. Plaster. The unchallenged findings of the trial court show that the revenues from appellee’s business decreased approximately 60% while said picketing continued.. Under the facts herein, the only relief available to appellee is through a, court of equity.

While the Supreme Court of the United States in the case of Milk Drivers Union of Chicago v. Meadowmoor Dairies, Inc., supra, held that picketing would be enjoined when enmeshed with violent conduct, it quoted with approval from its opinion in the case of Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 749, 84 L.Ed. 1104, in which it is said: “The power and the duty of the State to take adequate steps to preserve the peace and protect the privacy, the liyes, and the property of its residents cannot be doubted.”

It follows, we think, with equal force, that the Fourteenth Amendment of the Federal Constitution does not make unconstitutional the use of an injunction as a means of preventing the violation of the Texas anti-trust laws, Articles 1632 et seq., the constitutionality of which have recently been sustained by the Supreme Court of the United States in the case of Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124, 130 A.L.R. 1321, in an opinion handed down by Justice Frankfurter on May 6, 1940.

Appellants’ motion for rehearing is overruled.

Overruled.

CODY, Justice

(concurring).

I concur in the refusal of the motion for rehearing. I base my concurrence, however, upon the view that the constitutional right of free speech cannot be used to implement a boycott. The undisputed facts i*this case disclosed a boycott.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    PERPETUAL ROYALTY SYNDICATE et al. v. ALBRITTON.
    No. 14190.
    Court of Civil Appeals of Texas. Fort Worth.
    March 14, 1941.
    Rehearing Denied April 11, 1941.
    Kilgore & Rogers, of Wichita Falls, for appellants Perpetual Royalty Syndicate, Cox, and Hamon.
    Harris & Martin, of Wichita Falls, for appellant Lloyd Dixon.
    Brannan & Tipps, of Wichita Falls, for appellee Albritton.
   SPEER, Justice.

O. B. Albritton instituted this suit against Perpetual Royalty Syndicate, a common-law trust with E. E. Scannell as its sole trustee, Edwin B. Cox and Jake L. Hamon to recover an undivided one-eighth interest in moneys paid, and to establish his right to receive a proportionate amount out of additional sums promised to be paid from oil runs, for an oil and gas lease on fifty acres of land in Archer County, Texas.

Albritton’s pleadings disclose that his suit is based upon substantially the following conditions: In March of 1938, a test well had been drilled in the area of the lease described and it was believed to be a producer. Plaintiff and E. E. Scannell procured the lease in question, with ihc agreement that plaintiff should own one-eighth and Scannell the remaining interest; ihat for convenience the title to the lease was taken in the name of Perpetual Royalty Syndicate, to which we shall refer as Syndicate; that if one of the owners desired to sell his interest to a third party, the other would join in such sale or would pay to the one desiring to sell a sum equal to the bona fide offer made by such third party, for the interest the proposed seller had in the lease. That in the latter part of 1938, Albritton moved to Illinois and was out of touch with oil developments in Archer County; that Scannell, trustee for the Syndicate, remained in' Texas and was familiar at all times with values of leases in the area and with oil developments in that vicinity; plaintiff relied upon Scannell to keep him posted on all matters of mutual interest; that in May, 1939, Scannell, as trustee for Syndicate, wrote plaintiff that he had been offered $50 in cash and $50 in oil per acre for the lease, advising that he believed it a good sale, and asked plaintiff if he desired to sell on that basis; relying upon the statements of Scannell, plaintiff attached his letter of interest in the lease to a draft on Perpetual Royalty Syndicate for $312.50 and sent all to a Wichita Falls bank. That plaintiff sent his letter of interest to the Syndicate to enable it to sell the lease to the third party, whom he had been advised had made the offer of purchase, and believed the Syndicate was selling its interest in the lease to such third party, at the price plaintiff was receiving for his interest. That the Syndicate did not sell its interest at that time for that price, but by the fraudulent means alleged, procured plaintiff’s interest for the price mentioned.

Plaintiff further alleged that later, during the same year that the Syndicate had procured his interest in said lease in the manner set out, it sold the lease to Edwin B. Cox and Jake L. Hamon, for $11,000 in cash and $49,250 in oil payments to be paid out of three-sixteenths of eight-eighths of all oil produced and saved from said lease; that said sale to Cox and Hamon was secretly negotiated by the Syndicate without the knowledge of plaintiff and without informing him of the true amount received for same. That plaintiff returned to Texas and learned of the proposed deal before it was finally consummated; that he immediately notified Cox and Hamon of his interest therein and prepared an instrument disclosing same and caused it to be filed for record in Archer County, Texas,, on October 31st, 1939; that after full notice, both actual and constructive, Cox and Hamon closed the deal with the Syndicate and made payment of the purchase price. Allegations were made that the Syndicate was obligated to notify plaintiff, through its trustee, of all matters pertaining to said lease and its value; to make full disclosures to him from time to time of all matters which affected their mutual interests, but that it failed to do so, and ‘fraudulently led plaintiff to believe it was selling its interest to a third party at the time and price plaintiff was induced to part with his interest; that none of said representations so made to’ him was true.

Prayer was for $1,375, less the $312.50 previously paid, and for a decree establishing plaintiff’s right to one-eighth of the $49,250 to be paid in oil out of three-sixteenths of eight-eighths of the oil produced and saved from said lease, for costs and for general and special relief.

Defendant, Perpetual Royalty Syndicate, acting by and through its trustee, E. E. Scannell, answered by general denial and by special pleas, to the effect that it had from time to time endeavored to sell the lease, and having been informed that a third party would pay $50 in cash and the same amount in oil payments for the lease, and believing it a good price, notified plaintiff Albritton and asked if he desired to sell at that price; was advised that he did and it asked him to attach his evidence of interest to a draft on it for $312.50, to cover his interest in the lease; that when the draft came to' the bank, it had to be paid or returned, and while the sale had not been closed, the trustee thought it would be, and to prevent returning the draft and to be placed in a position to close promptly when the buyer was ready, it permitted R. R. Robertson, who also owned certain interests in the lease under the Syndicate, to take up plaintiff’s draft, and' the letter of interest formerly belonging to plaintiff was issued to Lloyd Dixon, the son-in-law of Robertson. That the sale of the lease so contemplated was never closed, and in the manner mentioned Lloyd Dixon became the owner of the interest in the lease. It was further alleged that during the ensuing six months, lease values in the area became salable because of activities in the oil field; that in the fall of 1939, it sold the lease to Cox and Hamon. The Syndicate prayed that Lloyd Dixon be made a party to said cause and that if it was finally determined that the Syndicate was liable to plaintiff because of the interest so held by Dixon, that it have judgment against Dixon for such amount as it was required to pay thereon, and for general and special relief.

Cox and Hamon answered by general denial and specially that they bought the lease from the Syndicate upon the record title presented to them and without notice of the claims by plaintiff, except that he had not elected to rescind the purported sale as of March, 1939, but was seeking damages upon the grounds claimed by him; their prayer was that any claim established by plaintiff be fixed as against the deferred oil payment promised-by them in part consideration for the lease.

The impleaded defendant, Lloyd Dixon, answered by general denial, pleading spe-. cially that he purchased the interest of plaintiff Albritton in the manner pleaded by Perpetual Royalty Syndicate, paid for same without notice of any fraud or deceit practiced upon Albritton, and that he had received the cash consideration for his interest in the lease as paid by Cox and Hamon; prayer was that he be decreed to own his pro rata part of the deferred oil payments contracted to be paid by Cox and ECamon.

The plaintiff Albritton answered Dixon’s pleadings by denying that he ever acquired the interest of plaintiff; that neither plaintiff nor the Syndicate ever contacted Dixon relative to a sale of the interest; that plaintiff never knew that Dixon claimed to-be the owner of the interest until after the present suit was filed; that R. R. Robertson was agent for Dixon and acted for him in all matters pertaining to said transaction, and that Robertson knew all of the facts and circumstances connected with the whole transaction, and, through his said agent, Dixon knew them. That because of the fraud and deception of the Syndicate and its trustee, Scannell, the purported sale by plaintiff of his interest in said lease is and was void.

The case was tried to the court without a jury. Judgment was entered for plaintiff Albritton for $1,173.87, jointly and severally against the Syndicate, Cox and Hamon, and established - his right to receive one-eighth of the deferred oil payment of $49,-250 from three-sixteenths of all oil and gas produced and saved and sold from the lease, as provided in the lease from the Syndicate to Cox and Hamon. Cox and Hamon recovered judgment over against the Syndicate for any amount they should pay Albrit-ton on the money judgment and should reserve same from its deferred payments in oil runs from the three-sixteenths reserved, not including the one-eighth interest decreed to Albritton. The Syndicate, recovered against impleaded Dixon any sum it should be required to pay to plaintiff because of the claim of Dixon. Judgment was against Dixon denying him any relief. From this judgment all defendants, including Dixon, have appealed.

All appellants have joined in one brief. Six assignments of error are presented, representing a single complaint — that judgment should have been entered for appellants and not for appellee. These assignments are presented by as many propositions or reasons urged, and are properly briefed as a group. Among the reasons assigned why Albritton should not have recovered are: (a) No fraud is shown to have been committed by Scannell, trustee of the Syndicate; (b) plaintiff indisputably authorized the Syndicate to sell his share in the lease for $50 cash and the same amount to be paid in oil; this was done and plaintiff accepted the proceeds of sale; (c) the amount for which plaintiff sold his interest was the full and fair value at the time; (d) Scannell made full disclosure to plaintiff of all facts concerning the proposed.sale and values at the time plaintiff transferred his interest; and (e) plaintiff failed to show that he suffered loss by reason of any alleged wrongs done by Scannell or the Syndicate.

There is no dispute in the evidence that plaintiff and Scannell bought the lease at the time and under the conditions pleaded by plaintiff; that they bought it for speculation purposes and placed the title in the Syndicate for convenience; and that they agreed either to sell together or if one did not want to sell he should have an option to buy the other interest at the price offered; that E. El Scannell was the sole trustee of the Syndicate. As evidence of plaintiff’s interest in the lease (along with another party, whose interest was acquired by plaintiff), the Syndicate issued the following letter: “Wichita Falls, Texas, March 9, 1938. Mr. Oscar Albritton, Wichita Falls, Texas. (The name of the other joint owner was included in the letter) . Gentlemen: This letter evidences your undivided one-eighth interest in the following described lease: (Here follows a description of the land covered by the lease). It is agreed that in case of a bona fide offer of sale on this lease, that all parties will join in the sale or have three days within which to purchase the interest of the other parties interested, at the sale price submitted. An assignment for your jointly owned one-eighth interest will be executed, at your request. (Signed) Perpetual Royalty Company, by E. E. Scannell, Trustee. Accepted: 01 B. Albritton, 3-12-38.”

Plaintiff left Wichita Falls and went to Illinois in October, 1938; Scannell remained and was conversant at all times with values of leases in that area; the testimony indicates that because of a lack of activities in the field, leases did not enhance in value for the next few months, as had been anticipated by the parties; Scannell was advised by Mr. Robertson, who held an interest under the Syndicate, that a Mr. Mc-Afee had offered to buy the lease at $50 cash and same amount in oil, per acre; Scannell said he believed it a good price and, on May 4th, 1939, wrote plaintiff: “We are offered $50.00 cash and $50.00 out of oil for our acreage in the Hull-Silk pool. Things are not so hot in this vicinity, and think it a good deal. * * * Let me know immediately if you will take this for your interest.”

Plaintiff replied and gave his consent to making the deal. On May 11th, 1939, Scannell wired plaintiff to attach his letter of interest to draft on the Syndicate for the amount of his interest. Plaintiff complied and when the draft arrived, the deal had not been closed and Scannell permitted Robertson to take up the draft, and the interest of plaintiff was passed by a letter to that effect from the Syndicate to Lloyd Dixon, Robertson's son-in-law, who personally knew nothing about any part of the transaction. The sale to McAfee and his associates was never consummated. Scannell wrote plaintiff on June 15th, 1939, and sent him an assignment of the deferred oil payments provided for in the former transaction; again on October 10th, 1939, Scannell wrote and offered plaintiff $100 for his deferred oil assignment, just referred to by us; on October 19th, plaintiff offered to accept from Scannell $150 for the oil assignment, and on October 28th, 1939, Scannell wrote plaintiff to send the assignment attached to draft for the amount. This was done and Scannell acquired plaintiff’s deferred oil - payment for that price. At no time did Scannell ever inform plaintiff that the McAfee sale did not go through; plaintiff believed the Syndicate had sold its interests when it acquired his. The record before us discloses that on October 23rd, "1939, five days prior to the' date on which Scannell acquired plaintiff's deferred oil payment, Scannell, acting as trustee for the Syndicate, had entered into a written contract with Cox and Hamon to sell them the lease for $11,-000 cash and $49,250 in oil payments out of a designated portion of the lease. Subsequent to the time plaintiff sent his letter of interest in the lease to the Syndicate and believed the whole lease had been sold, upon the terms he was to receive, other wells were drilled in the area, ranging in distance from the lease, from a half mile to two or three miles; these wells were producers and enhanced the sale value of the lease very much, as indicated by the price for .which it was sold. These activities were never revealed to plaintiff, but Scanners letters carried a discouraging note at all times. When questioned on this point, Scannell said he was under no obligation to tell plaintiff anything and what he did was purely because of friendship for Albritton.

Plaintiff returned to Texas late in October, and then for the first time learned the lease had not been sold at the time he was supposed to part with his interest; the deal with Cox and Hamon had not then been closed, and he informed them of his interest and prepared and had filed for record an instrument in Archer County to that effect. The contract of sale between the Syndicate and Cox and Hamon was later carried out and the contract price was paid to the Syndicate. Expenses of $1,-609 were incurred by the Syndicate in consummating the deal. The expense was deducted from the $11,000 cash payment and plaintiff was awarded one-eighth of the remainder, the amount of the recovery being $1,173.82, with interest at 6 per cent, per annum from the date of the judgment, and a recovery establishing his right and title to one-eighth of the deferred oil payment promised by Cox and Hamon, as above indicated.

It is clear to us that in the inception of this whole transactipn, plaintiff and Scannell were partners in the lease, and when they, by mutual agreement, placed the record title in the Syndicate to enhance the interest of both, that relationship was not changed. To say the least of this particular transaction it was a joint adventure between them, and is controlled by the same rules of law, in so far as the parties are concerned, as if it had been a partnership. Obviously, both recognized the terms of the written agreement, above quoted, under which they held their respective interests. It may be said that Scannell believed the deal with McAfee would be closed and to enable it to be closed promptly, if, as and when the purchaser was ready, he had the interest transferred to Dixon. When the sale was not consummated, it became the duty of Scannell to inform plaintiff of that fact and give him an opportunity to determine whether or not he would resume their former relationship and hold the lease until all could be sold together, as provided by the written agreement. This was not done, and although Scannell may have been innocent of having defrauded his partner, his omission of duty resulted in a legal fraud against plaintiff. The result to plaintiff is apparent. He was deprived of the privilege, if he had chosen to do so, of holding his interest in the lease and receiving his pro rata part of the greater sale price.

There was a fiduciary relationship between plaintiff and Scannell, and'it is well settled that they owed to each other the duty to disclose every fact and circumstance which affected their joint interests. This rule is emphasized by the fact that the Syndicate, acting through Scannell, was buying plaintiff’s interest; when they entered into the fiduciary relationship, they each agreed, as a matter of law, to have his conduct toward the other measured by the standards of the finer loyalties exacted by courts of equity. This is a sound rule and should not be whittled down by exceptions. As expressed by our Supreme Court, in Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 787, 120 A.L.R. 720: “Since each is the confidential agent of the other, each has a right to know all that the others know, and each is required to make full disclosure of all material facts within his knowledge in any way relating to the partnership affairs. This necessity for good faith and the making of a full disclosure of all important information applies in the case of sale by one partner to another of his interest in the partnership.” A similar rule was laid down by the Supreme Court in Prude v. Campbell, 85 Tex. 4, 19 S.W. 890. In Armstrong v. Simms, Tex.Civ.App., 132 S.W. 500, the Prude-Campbell case was followed. It is the well-settled rule in other jurisdictions. See Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1, and 20 R.C.L. 879.

Under the facts of this case, about which there is little or no controversy, we think no error is shown in the judgment as entered for the plaintiff, Albritton. The complaint by appellants is that judgment should have been entered for them and not for the plaintiff. All assignments of error are overruled and the judgment of the trial court is affirmed.

On Motion for Rehearing.

All defendants have joined in a motion for rehearing in this cause. We have carefully.studied the motion and find nothing which leads us to believe that we have not properly disposed of the case.

Our attention has been called to an expression -used in the ■ opinion which is claimed not to be supported by the record. At one place in the opinion we stated substantially that certain correspondence between Scannell and Albritton, the dates of which we mentioned, showed that Albritton replied to an offer made by Scannell, agreeing to accept $150 for his deferred oil payment growing out of the sale which Scan-nell claims was fairly made, and that on October 28th, 1939, Scannell wrote Albrit-ton to send his oil -payment letter attached to a draft for that amount. We said: “This was done and Scannell acquired plaintiff’s deferred oil payment for that price.” Defendants say that the record does not show that the deal was ever closed, and hence our quoted statement is not supported by the record. The contention is correct and we withdraw the quoted statement in the interest of clarity.

With the correction made as indicated, the joint motion for rehearing, is overruled.


author: CHRISTIAN, Judge. KRUEGER, Judge.

text:
    MEEKINS v. STATE.
    No. 21504.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    Rehearing Denied April 23, 1941.
    R. H. Wilson, of Wharton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder; the-punishment, confinement in the penitentiary for two years and six months.

Appellant and Walter Carl Sanders were jointly indicted upon a charge of making an assault with malice aforethought upon A. F. Schaer with the intent to kill him. Appellant alone was placed upon trial. Schaer was a constable. He had arrested appellant and Sanders and carried them before a justice of the peace in East Bernard. After the justice of the peace had issued a commitment Schaer and his son started with appellant and Sanders in an automobile to Wharton for the purpose of placing them in jail. Young Schaer was driving the car. Appellant and Sanders had been handcuffed together and placed on the back seat of the car. During the journey one of the men struck the constable on the head with a shoe and dazed him. Sanders procured the constable’s pistol. He and appellant then directed young Schaer to drive toward some timber. Sanders-cocked the pistol and held it on young Schaer. At times he pointed the pistol at the constable. Schaer directed his son to disobey the command of the parties to drive to the timber, and cut off the ignition. A truck approached and Schaer asked the driver to stop. At this juncture appellant commanded Sanders to shoot the constable. Sanders shifted the pistol from young Schaer, apparently in an effort to direct it at the constable, and young Schaer grabbed the pistol, placing his thumb between the hammer and the firing pin. At the same time he squeezed the hand of Sanders. After a brief scuffle he secured possession of the pistol. According to young Schaer’s testimony, he did not know whether his action in seizing the pistol caused the trigger to be pulled. In any event the trigger was pulled. However, the presence of the thumb of young Schaer on the pistol in the manner stated kept it from firing. The constable and his son both testified that Sanders had ample opportunity to shoot them from the time he secured the pistol. He had it in his possession from fifteen to thirty minutes and could have used it to kill them at any time during that period.

Appellant did not testify.

We gravely doubt whether the evidence is sufficient to support a conviction for assault with intent to murder. We quote from Buchanan v. State, 127 Tex.Cr.R. 100, 74 S.W.2d 1022, 1024, as follows:

“As requested by the representatives of the state, we have again given careful attention to the facts before us to determine whether we were in error in our original opinion indicating that we did not believe the evidence supported a conviction for the offense of assault with intent to murder. We find that the sheriff himself testified that there was nothing to have prevented appellant from shooting as he (the sheriff) was walking up toward appellant; that he did not shoot, but had the chance to, and that he did not shoot until after the sheriff had grabbed the gun. The sheriff said, ‘He told me to stop, and if I didn’t he would shoot and I kept easing up on him until I finally lunged at him and the gun went off.’ A controversy or issue was raised as to whether the father of appellant had hold of the gun at the time it was discharged. The sheriff says he did not, but the father testified that he did have hold of the gun and was taking it away from appellant, at which time the sheriff reached over his shoulder and jerked the gun, and that in jerking it the sight on the gun cut the father’s hand, and that the gun was discharged as the sheriff jerked it away. Appellant himself testified that he did not fire the rifle at the sheriff and that he did not know how it went off any more than anybody else did. He said there was nothing to keep him from shooting the sheriff from the time he came on the porch until after the rifle was jerked out of his hands. The record before us further shows that after the rifle was taken from appellant he ran away and that some shots were fired by the sheriff and his deputy in the direction in which appellant had gone. Appellant secured a shotgun and came back and had another opportunity to shoot the sheriff with this gun, but made no attempt to do so. The sheriff again fired in the direction of appellant, who again ran away.
“We feel impelled to say that under the entire record, viewing it in the strongest light for the state, we have been unable to get our consent to hold the evidence sufficient to sustain a conviction for assault with intent to murder.”

Appellant timely and properly requested the court to instruct the jury as follows: “You are instructed that if you believe the hammer of the gun in the possession of Walter Sanders was accidentally snapped upon the hand of A. F. Schaer, Jr., at the time of the scuffle between A. F. Schaer, Jr., and Walter Sanders, you cannot convict the defendant, John Meekins, of assault with intent to murder.”

Viewing the record in its entirety, we are of opinion that such an instruction should have been submitted to the jury. If Sanders had no intent to kill the constable appellant would not be guilty of assault with intent to murder, notwithstanding he commanded Sanders to kill Schaer. In view of the fact that up until the time such command was given the testimony excluded the idea of an intent to kill upon the part of either Schaer or appellant, and of the further fact that the state apparently largely relied upon the pulling of the trigger of the pistol by Sanders to show a specific intent to kill, a conviction for assault with intent to murder would not have been warranted if young Schaer’s action in grabbing the pistol and squeezing the hand of Sanders caused the trigger to be pulled. In short, we are of opinion that, in view of the testimony of A. F. Schaer, Jr., the charge should have been given. See Buchanan v. State, supra.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

KRUEGER, Judge.

We have again reviewed the record in the light of the State’s motion for a rehearing, but see no reason for receding from our position as expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    RAGENS v. STATE.
    No. 21565.
    Court of Criminal Appeals of Texas.
    April 9, 1941.

      Fred. O. Jaye, of De Leon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the district court of Comanche County for driving and operating a motor vehicle upon a public street and upon a public highway situated within Comanche County and State of Texas, while intoxicated, and assessed a penalty of $50 and twenty days in jail, from which he appeals.

The indictment and the proceedings thereon appear to be regular. We find no bills of exception or statement of facts. It will be presumed that the evidence warranted the conviction, and there is nothing left for our consideration.

The judgment of the trial court is affirmed.


author: CPIRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    SAVELLE v. STATE.
    No. 21487.
    Court of Criminal Appeals of Texas.
    March 19, 1941.
    Rehearing Denied April 23, 1941.
    Lytton R. Taylor, of El Paso, for appellant.
    Roy D. Jackson, Dist. Atty., and Harold S. Long, Asst. Dist. Atty., both of El Paso, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CPIRISTIAN, Judge.

The offense is aggravated assault; the punishment, confinement in jail for two years and a fine of $1,000.

The wife of appellant had obtained a divorce from him. Their small child had been placed in the custody of the mother. The order of the court accorded appellant permission to visit the child at stated times. John Bryan, the injured party, was the father of appellant’s wife. According to the testimony of the state, Mr. Bryan had undertaken to support appellant’s son. It was his version that appellant constantly molested his daughter and had threatened upon occasions to whip him because of his efforts to prevent such molestation. It was appellant’s version that the injured party, his former wife, and her mother undertook to keep him from seeing his child.

Touching the immediate circumstances surrounding the assault, it was shown in the testimony of the state that appellant came up behind the injured party as he was walking along a sidewalk and struck him a severe blow with a pistol. Mr. Bryan testified, in substance, that he did nothing to provoke the assault. The wounds inflicted upon the injured party were serious, his skull having been fractured. Physicians testified that he was unconscious for a numEer of days and that they were of the opinion at the time he was in the hospital he would not recover.

Appellant’s testimony raised the issue of self-defense, which appears to have been adequately submitted in the charge of the court. Appellant testified that the injured party was in possession of a pistol which he attempted to draw, and that he (appellant) struck him with his pistol in order to protect himself. The testimony showed that Mr. Bryan was armed with a pistol. However, he testified that he made no attempt to draw the pistol and did not know appellant was behind him at the time of the assault. In short, he testified that he remembered nothing of the transaction as the blow he received rendered him unconscious.

We deem the evidence sufficient to support the judgment of conviction.

The only bill of exception in the record relates to the refusal of the court to permit appellant to introduce in evidence a letter which he asserted he had received .from his wife. The bill shows that if the appellant had been permitted to testify 'as to the contents of the letter he would have stated that his wife had written him, in substance, that she had been untrue to him. There is nothing in the bill of exception to show the relevancy or materiality of the proffered testimony. Under the circumstances, we are unable to determine from the bill whether the state’s objection was improperly sustained.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

In his motion for rehearing appellant complains that due consideration was not given to his bill of exception number one, which is the only bill of exception in the case, and which complains of the failure of the court to permit the appellant to introduce in evidence a letter which he received from his wife and in which he says that she admitted unfaithfulness. This was presented for the purpose of showing reason for the state of his mind and grounds for the subsequent trouble which he and his wife had. We are unable to understand any purpose which this might have served in defense of the charge against him in this case. We have not heretofore considered and do not now think that it was pertinent to any issue in the case, or that it would reasonably have been expected to influence the jury one way or another, unless it should prejudice the jury against his wife. This was evidently appellant’s purpose, but we cannot agree that he may introduce evidence having no other purpose than this just because the prosecuting witness is her father. To admit it would open up a field for the introduction of any and all testimony which might be considered prejudicial to a prosecuting witness to which there would be no end. We know of no authority authorizing it and see no reason why a lengthy discussion should be given.

Appellant’s motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    FRANKLIN v. STATE.
    No. 21522.
    Court of Criminal Appeals of Texas.
    April 9, 1941.

      M. J. Howze, of Monahans, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder without malice; the punishment, confinement in the penitentiary for five years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Six Sanders by cutting him and stabbing him with a knife.

Although appellant and deceased were not married, they had been living together for a number of months. According to the version of appellant, deceased had frequently threatened to kill her and had on occasions whipped her. The homicide occurred between two and three o’clock in the morning in a part of the town of Midland occupied by negroes. According to the theory of the state, given support in the testimony, appellant, while intoxicated, stabbed and cut the deceased to death with a knife. It was the version of witnesses for the state that, after stating to deceased that she was going to kill him, appellant committed the assault that resulted in his death. Witnesses for the state also testified that after mortally wounding deceased appellant sought to revive him by pouring water in his face. Appellant’s testimony raised the issue of self-defense.

Appellant filed an application for a suspended sentence. While testifying, she promised the jury that if they would recommend a suspension of the sentence she would thereafter lead a Christian life.

As shown in bill of exception No. 1, in her motion for new trial appellant alleged that • she had discovered new and material testimony since her conviction. The affidavit of the newly discovered witness, appended to the motion, set forth the testimony he would give in the event of another trial. The order overruling the motion for new trial embraces a recital as follows: “The court, having heard the said motion and the evidence thereon submitted, is of the opinion that the said motion of the said defendant, Fannie Mae Franklin to set aside the verdict and judgment rendered herein and grant her a new trial should be in all things overruled and refused.” The evidence heard upon the motion is not brought forward. Under the circumstances, this court must presume that the court’s action in overruling the motion was correct. Stated in another way, we must presume that the trial court acted upon evidence that was sufficient to justify his action. Murphy v. State, 126 Tex.Cr.R. 477, 72 S.W.2d 252, 253.

Bill of exception No. 2 discloses that the district attorney asked Ada Garrett, a witness, whether she was separated from her husband. She answered in the affirmative. Thereafter the district attorney asked her: “You divorce your husbands, you don’t kill them, do you?” Appellant objected to all of the questioning of the witness, and made a motion that the court declare a mistrial, which was overruled. The court instructed the jury to disregard the remarks of the district attorney. If Ada Garrett was a witness for appellant and it was appellant’s position that she .could not be questioned concerning the fact that she was divorced from her husband, it is observed that it is nowhere shown in the bill of exception that she gave material testimony in behalf of the appellant. However, the bill fails to show whether the witness was introduced by the state or by the appellant. It is the rule that a bill of exception relating to the improper impeachment of a witness, to be sufficient, must show that the witness gave material testimony in behalf of the accused. Ewing v. State, 120 Tex.Cr.R. 137, 49 S.W.2d 450. If appellant’s objection went to the last question propounded by the district attorney, we find nothing in the bill indicating that the asking of such question could have prejudiced appellant. That appellant killed the deceased was undisputed. The question carried no implication apprising the jury of any fact not shown in the testimony. At all events, we are of opinion that the prompt action of the court in instructing the jury to disregard such question saved appellant from harm.

Bill of exception.No. 4 relates te> the refusal of the court to permit a witness for the state to answer a question propounded by counsel for appellant. The bill is deficient in failing to show the answer the witness would have given. Ross v. State, 115 Tex.Cr.R. 152, 29 S.W.2d 381.

Bills of exception Nos. 5 and 6 are in the same attitude as bill of exception No. 4.

Bill of exception No. 3 is in question and answer form without any certificate by the trial judge showing the necessity of such form. Under the circumstances, the bill ■ is insufficient. Garza v. State, 129 Tex.Cr.R. 443, 88 S.W.2d 113.

We deem bill of exception No. 7 to be without merit.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

PER CURIAM.

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


author: KRUEGER, Judge.

text:
    OWENS v. STATE.
    No. 21558.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    Williamson & Nordyke, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

At a former day of the preceding term of this court we dismissed the appeal in this case, 139 Tex.Cr.R. 26, 138 S.W.2d 815, because of a defective record. Since then the record has been perfected and refiled, giving the same style of the case but a different number, namely, No. 21,558; and it appears on the docket of this court as an entirely new case. Hence we will now dispose of this case on its merits.

The State’s testimony shows that on the 28th day of July, 1939, the Sheriff of Erath County, accompanied by two of his deputies, went to the appellant’s place of business located on the north side of the highway between Dublin and De Leon in said county, armed with a search warrant, to search the appellant’s premises. Upon their arrival, they found appellant absent but talked to his eighteen-year old son, who was in charge of the grocery department and the cold-drinks stand of his place of business. They informed the son that they intended to search the premises and he told them to go ahead. They found six cans of beer in an ice box in the cold-drinks stand, and 43 cans of regular-size Pabst beer in a large can buried in the ground west of the garage. After the officers had searched the grocery store and the cold-drinks stand, they entered the home or living apartment of the appellant and made a search thereof but found nothing therein. It appears from the testimony of the officers that they did not read the search warrant to anyone, did'not exhibit it; nor did they leave a copy thereof with anyone present at the appellant’s place of business or at his residence.

It was agreed by and between the County Attorney, representing the State, and the appellant that Erath County was a dry area, made so by virtue of an election theretofore held within and for said county to determine whether or not the sale of intoxicating liquor should be prohibited within and for said county; that such election resulted in favor of prohibiting the sale of intoxicating liquors, etc.

Appellant testified in his own behalf that he did not authorize his son to permit any officer or anyone else to search his premises; that he did not own the beer and did not bring it onto the premises; that one of his friends brought the beer over in a milk can and hid it at the place where the officers found it; that he and his friends intended to go fishing and to carry the beer with them on their fishing trip; that at the time the officers arrived at his place of business he was away gathering up some fishing tackle preparatory to going fishing; that the milk can in which the beer was found did not belong to him; that he did not buy the beer, did not bring it ori the premises, and did not have it there for the purpose of sale.

Appellant’s first contention is that the trial court erred in overruling the motion for a continuance based upon the absence of one Ed Dunn, who is claimed to have resided in Comanche County. This application is deficient in two respects : First, in that it fails to state any facts which would constitute due diligence to procure the attendance of the witness; and second, that it fails to state that the witness is not absent with the consent of the defendant, as required by Section 4 of Article 543, C.C.P. Hence, there was no error in the court’s action in overruling the application.

Bills of exception Nos. 2, 3, and 4 relate to the admission in evidence as to what the officers found as a result of the search of the appellant’s premises. Appel-Tant in due time objected to this testimony on the ground that the officers did not advise his wife or the son that they had a search warrant, nor did they read or exhibit the search warrant to the wife of son; nor did they ask his wife for permission to search the premises, etc. The bills of exception are insufficient in that there is nothing in said bills to support the ground of objection. A mere statement of the ground ,of objection in a bill of exception is not a certificate on the part of the trial court that the facts which form the basis of the objection are true; it merely shows the ground of the objection. In support of what we have said we refer to the following authorities: Carter v. State, 135 Tex.Cr.R. 457, 116 S.W.2d 371; Byrom v. State, 132 Tex.Cr.R. 435, 104 S.W.2d 870, and cases there cited.

Conceding for the sake of argument that the search was illegal, we find that the appellant took the witness-stand and admitted that the beer found by the officers was on his premises; that it was placed there by one of his friends with whom he intended to go fishing; and that they planned to carry the beer with them on their fishing trip. Consequently the presence of the beer on his premises was admitted by the appellant. Whether it was placed there by him or by one of his friends as testified to by him became an issue of fact which the jury determined adversely to the appellant.

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

PER CURIAM.

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


author: GRAVES, Judge.

text:
    McINTYRE v. STATE.
    No. 21552.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    E. A. Blair and John M. Steele, both of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the offense of swindling by means of giving a worthless check, and by the jury given a penalty of twenty months in the county jail.

We think the testimony is sufficient to support the verdict of guilt.

There are numerous bills of exceptions in the record, which will not necessarily be noticed on account of the matters found set forth in bill No. 1. This matter can be understood by quoting the trial court’s qualification to such bill No. 1, as follows:

“Qualification: In the Above Bili:
“The County Attorney asked the defendant, P. L. McIntyre, if he had ever been convicted on a worthless check case, to which question the defendant answered that he had not, whereupon the Court pointed his finger at the defendant, P. L. McIntyre, and said ‘be careful and do not perjure yourself; you are supposed to tell the truth’. Thereupon, both counsel for the defendant, E. A. Blair and John Steele said they wanted a Bill of Exception to the court’s remarks, and the Court told them they could have as many bills as they wanted. Thereafter, John Steele moved that the jury be dismissed and a new trial granted, and the Court overruled such motion, to which ruling of the Court the defendant then and there excepted, all of which actions occurred in the presence of the jury.”

.Art. 707, C.C.P. Vernon’s Ann.C.C.P. art. 707, reads as follows: “In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceedings previous to the return of a verdict, make any remark calculated to convey to the jury his opinion of the case.”

And in commenting on this -statute, it is said in 42 Tex.Jur., p. 186:

“The Legislature, in enacting the statute above set forth, recognized the fact that the position of the trial judge carries great influence and that his opinion is naturally received by juries with deference. In order to guard against an invasion by the judge of the province of the jury in determining the credibility of the witnesses and the weight to be given to their testimony, the statute was enacted. A similar restriction is imposed upon the court by article 658 of the Code of Criminal Procedure, 1925 [Vernon’s Ann.C.C.P. art. 658], relating to the charge to the jury. And another statute expressly makes the jury the judge of the credibility of the witnesses and the weight to be given to their testimony. Article 707 is said to be in aid of this statute.
“ ‘The law contemplates that the trial judge shall maintain an attitude of impartiality throughout the trial. Jurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved. The delicacy of the situation in which he is placed requires that he be alert in his communications with the jury, not only to avoid impressing them with any view that he has, but to avoid in his manner and speech things that they may so interpret.’ ”

Again, in the same work, p. 194, it is said: “Error is committed by the use of language which is calculated to cause the jury to discredit the witness, or which conveys to the jury the impression that the judge deems a witness’ testimony to be false.” See Davis v. State, 114 Tex.Cr.R. 72, 24 S.W.2d 417; Speers v. State, 110 Tex.Cr.R. 29, 7 S.W.2d 87, and cases therein cited; Robertson v. State, 104 Tex.Cr.R. 85, 282 S.W. 587; Kennedy v. State, 126 Tex.Cr.R. 82, 70 S.W.2d 149; Pharr v. State, 7 Tex.App. 472.

We are of the opinion that reversible error is shown in bill No. 1, and the judgment is therefore reversed and the cause remanded.


author: B E AU CPI AM P, Judge.

text:
    CHAMBERS v. STATE.
    No. 21533.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    Wm. E. Davenport, of San Angelo, for appellant.
    O’Neal Dendy, Dist. Atty., of San Angelo, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   B E AU CPI AM P, Judge.

The appellant was charged by indictment with the offense of murder without malice and assessed a penalty of three years in the penitentiary.

It is not necessary in the disposition of this case to detail the facts of the crime. Appellant presents eight bills of exception, all of which will be overruled except the sixth. This bill complains of the action of the prosecuting attorney, over the appellant’s objection, in reading to the jury another indictment pending against accused for a similar offense committed within a few days after the time of the one for which he was on trial. The defense had rested his case. The state then asked that appellant .be recalled for further cross-examination. He objected to being thus placed on the witness stand after the cross-examination had closed, and the court sustained this objection. The prosecution then offered an indictment against him and proceeded to read its contents to the jury, over appellant’s objection, and under 'the court’s instruction that they could consider 'it only for the purpose of determining the defendant’s credibility as a witness, if it aided them in doing so.

The reason for the court’s refusal to permit the witness to be thus recalled does not appear from the record. Evidently, the state was within its rights in requesting permission to cross-examine the appellant to the extent that it may show that another indictment was pending for a felony. The action of the state in reading the indictment is obj ectionable for the reason that appellant was charged with the murder of a young lady upon whom the evidence shows that he had performed an unlawful operation. The other indictment read to the jury, as shown in the bill of exception, discloses that he is charged with the same offense and that the death of another woman resulted from the same kind and character of operation three days after the one for which he was being tried. The details of the charge were set out in the indictment and read to the jury, which placed before them not only the fact of his being indicted, but the state’s pleading and charge as found in the indictment.

The district attorney insists that he had a right to introduce the indictment and has filed an exhaustive brief on the subject in which he refers to many authorities. It is our conclusion that they are distinguishable from the case now before us because in them the indictments were introduced for the purpose of showing that the accused in each case was charged with another offense of the grade of felony, but it does not appear that the state went into the facts of the crime charged. In some instances the offenses charged were misdemeanors, in which cases it appears that it would be permissible to show enough about the charge to inform the jury that moral turpitude was involved. We must not confuse the decisions so as to conclude that the indictment being admissible means that its contents may be read to the jury. If any case appears to so hold, we do not believe the court meant it to go that far. The fact of the indictment for a felony and its pendency against appellant in this case was-admissible for the purpose stated by the court, but its contents was not. This question we consider sufficiently well settled so that further discussion will be unnecessary. See Finch v. State, 103 Tex.Cr.R. 212, 280 S.W. 597; Branch’s Ann.Penal Code, § 167, and authorities there cited.

.We have considered the complaints raised by appellant in the several bills of exception and each of the others are overruled without discussion, other than that it may be suggested that bill of exception number seven, relating to the argument of counsel, is very questionable and should not be indulged on another trial of the case.

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


text:
    BLACK et al. v. STATE.
    No. 21567.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    B. F. Whitworth, of Linden, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellants were convicted on a charge of theft by false pretense of property over the value of $50, and given a term of five years in the penitentiary.

The scene of the crime charged was near Kildare, Cass County, which borders an East Texas Oil Field enriched in its history by the presence of the colored population in multiple numbers and who possess such financial interests as to attract the wicked wooings of the wisest men. The story told is characteristic of the time and of the community in which the scene is laid, as well as the race involved.

It was September. The aroma of new mown hay had sweetened the breath of the evening. The lengthening shadow of the tall pine from the hilltop had extended into the green valley below. K. Willard Brown, colored, armed with a hay rake and pitchfork, had set his affections on the closing task of the day and was about to garner his pea hay when he discovered two strangers at his door, “Dr. Mathis” and “Mr. Grumbles”, erstwhile Arthur Black and Uclous Wright, colored. Dr. Mathis was a small, humble man, so he confesses, but in the spirit of the Lord he is able to do mighty things. In fact, the spirit, aided by a large blue Oldsmobile and Mr. Grumbles as chauffeur, together with the conception that K. Willard Brown might have $82, had led the doctor unerringly to the door at that very logical time of the day. K. Willard was appalled at the introduction. He met Dr. Mathis, who said, “I am a spiritual man and the spirit teaches me there is a hidden treasure here”. K. Willard: “Is that so?” To which he received the solemn reply, “Yes”. Dr. Mathis: “I am nothing myself, but through the spirits I can do lots of things; the spirit leads me here. There is a hidden treasure here”. K. Willard, seeking more faith: “Are you sure it was a spirit?” Dr. Mathis replied, “Yes, I am a spiritual man.”

Now at this juncture a most unusual thing, to the uninitiated, occurred. K. Willard Brown, enrapt as he was by the announcements and by the presence of the select and the elect, nevertheless, displayed his loyalty to his pea hay and opined that he must hurry and rake it up as he saw a small cloud appearing in the distance. Dr. Mathis and Mr. Grumbles uttered not a dissenting voice, for who does not know and appreciate the loyalty of an East Texan, white or colored, to his blackeyed peas and all the by-products therefrom? Come riches and promise of. riches, oil and promise of oil, the spirits nor spirituality has ever led one single East Texan for a moment to desert his blackeyed peas, and so, entranced as K. Willard Brown was by the presence of the mighty and the Almighty, he, nevertheless, must have a few minutes to prepare and look after his pea hay. Dr. Mathis and Mr. Grumbles assented : “Mr. Brown, you are kinda an industrious fellow, looks like you work awfully hard.”

They sat patiently on the gallery until Brown’s wife called him to supper. Dr. Mathis and Mr. Grumbles were too near the spirit to leave it to partake of food. They waited still. K. Willard soon joined them on the porch and it was not long until Dr. Mathis “sprung up” and said: “The spirit is dealing with me. Have you got a secret room?” K. Willard replied, “No, I have a company room.” Said Dr. Mathis, “Suppose we go inside, and I would like to go through my business with you.” They did. Chairs were arranged and “Dr. Mathis knelt down to pray, and when he got up he said, ‘Yes, it is here. The spirit directs me — it is here.” K. Willard followed him in mind if not in spirit. Yes, he was ahead of him. He asked, “Who is it for?” Dr. Mathis’ answer was ready, it was psychological. “I don’t know, but however who it is for, the spirit will write you a letter, ever who the treasure is for.” His eyes wandered to the east corner, with his head up, his tongue reverberating laudable but mysterious sounds from the unknown. Mr. Grumbles paritomimed for emphasis. Dr. Mathis prayed again and, being assured, he spoke as never man spoke, “No mistake, the spirit directs me, it is there.” To his Bible and to an appropriate chapter' — -it is immaterial where. K. Willard was in the spirit, but his heart was leaning further towards the treasure soon to be revealed. Reading and praying they proceeded until the spirit placed in the hands of the mysterious Dr. Mathis a piece of paper which he twisted up, read and set afire. The ashes were carefully placed on the Bible and rubbed, from which there appeared, “$7,-000.00, north east of my house two and one-half feet in the ground.” A little space below came the over-shadowing announcement, “It is $82,000.00 on the opposite side of the house.” Dr. Mathis read the words —then the additional message, “You are welcome to the consecrated - funds, J. W. Brown.” (Strange wasn’t it that the spirit made a mistake in the initials, or perhaps the court reporter.) The pronouncement of Dr. Mathis, the interpreter of the spirit, the man spiritual, brings to K. Willard the thrill that comes but once in a lifetime. “Brother Brown, you should be proud. That treasure is for you.” Laying his hand on K. Willard’s shoulder he blessed him and spoke of the consecrated fund. Mr. Grumbles jumped up and turned to the other side of the house and, after talking in tongues, turned and said, “Brother Brown, get a glass, get a glass.” It was produced half full of water. Something was poured in it which turned it black like smoke. So directed, he threw that out at the east end of his porch.

Dr. Mathis to his Bible again. From it the consecrated fund was explained. K. Willard offered him a check for the $82, $1 for each thousand which was to be his, to which Dr. Mathis replied, “No, Brother Brown, we could not use a check. Jesus Christ is sending you the money and it will take cash money to get it — $82.00.” K. Willard was to furnish that, but Jesus could not use a check. “You know, Brother Brown, it takes money to get money.” Then he inquired how much money he had available. Four or five dollars was the reply, but that was not enough. Desiring to remain always in the spirit (at least until he possessed the $82,000), K. Willard implored his benefactors to leave him not until they should go to Atlanta and get the money, but their business was too important. They had other engagements the following day until late in the afternoon. Day light again. K. Willard’s faith failed him (or perhaps the banker instead). He lingered in Atlanta until near nightfall. When he returned, the spirit, the big blue Oldsmobile and the hope of the $82 had led Mr. Grumbles and Dr. Mathis to their waiting on the porch. The chores were done because there was no hurry in a matter like this. Dark came on, supper fixed. Dr. Mathis and Mr. Grumbles,; much in the spirit, fasted still. The conversation resumed. Dark brought Dr. Mathis in the spirit again. To the room, this time the one in which K. Willard slept. A lamp light would not fit the occasion, but a dim, tapering candle on a snuff box sufficed. Three small bottles on the hearth in the shape of a star with candles between them. Kneeling he ■ prayed. Again the unknown tongues. K. Willard kneeled with him. His hand on the Bible, together they prayed, asking K. Willard about the consecrated money. He had only $52, which he took out of his pocket and gave to Grumbles to count without telling the amount. “Fifty-two dollars”, he said, “Brother Brown, this is not enough”. K. Willard’s faith was rising and he told him he could get four more dollars, which he proceeded to do, but K. Willard spoke in an unknown tongue — at least to Mr. Grumbles and Dr. Mathis. He coughed and this was a signal. The sheriff and his deputy entered and took possession of Mr. Grumbles and Dr. Mathis, henceforth to be known as Arthur Black and Uclous Wright, or vice versa, it matters not.

Now it developed that K. Willard’s faith had become adulterated during the day with a stream of doubt, and as night came on he feared he would not be successful by himself in struggling with the spirits, so he had procured the assistance of a neighbor who had called the sheriff to aid hipi. To the $22 which he secured from his wife he added $30 which he borrowed from the sheriff. It was not an entrapment case. K. Willard meant it. He was in the spirit, but the flesh was weak and he called the sheriff to help him, who sensed the situation and instructed K. Willarcj to cough when they had taken the money. The details here become pertinent. After the money, $82 as directed, should be placed, Dr. Mathis and Mr. Grumbles would retire for five days, during which time they would pray and at the end of which they were to return and dig for the money, but the evidence is not clear as to what was to be done with the $82. The witness said, “I did not put the $52 in the Bible and put it in my bed tick and I didn’t pray over it every night for five nights. I didn’t do it because there was no need — the man was in jail.” From this it appears, as the only evidence showing where the money was to be kept, that it was to be put in K. Willard’s Bible and in his bed tick and there to remain (?). The sheriff testified, “I also found $52 in that room down there, in paper money, currency of the United States.” Further: “When I went in the room the $52 was lying on the table, or dresser, or washstand. One negro was on one side and one on the other side, and the money was lying on the Bible. There were two Bibles there and I believe the money was lying on K. Willard’s Bible. We heard the negroes counting the money.”

At the close of the testimony in this case the appellants’ attorney timely moved the court to instruct the jury to return a verdict of not guilty. For his failure to do so, bill of exception properly brings the matter before this court for consideration.

Definitely, K. Willard coughed too soon. The deal was not quite closed. Appellants had not appropriated the money, and for this it is our judgment that the case must be reversed. Price v. State, 49 Tex.Cr.R. 131, 91 S.W. 571, is sufficient authority for our holding. It has been followed by Nichols v. State, 133 Tex.Cr.R. 294, 109 S.W.2d 1057; Maxwell v. State, 134 Tex.Cr.R. 314, 115 S.W.2d 939, all of which are in harmony with the following discussed authorities:

The prosecution is under Art. 1413, P.C., reading as follows: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

In the case of Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449, 452, we find the following language used by the court: “The gravamen of the offense of theft by false pretext is that accused came into possession of the property by a willing surrender of it to him by the owner, he, however, being induced to so deliver possession by a false pretext or device, and with the fraudulent intent on the part of accused at the very time he came into possession of it to appropriate it to his own use, followed by such appropriation.”

In the case of Hoovel v. State, 125 Tex.Cr.R. 545, 69 S.W.2d 104, 106, this court laid down the following as the constituent elements of theft by false pretext: “The constituent elements of theft by false pretext consist, first, in the obtaining of property by means of a false pretext; second, that at the time the property is obtained the accused had the intent to deprive the owner of the value of the same and to appropriate it to his own use and benefit; and, third, that, pursuant to said intent said property was appropriated by the accused to his own use and benefit wdthout the consent of the owner.”

In the case of Gordon v. State, 85 Tex.Cr.R. 641, 214 S.W. 980, opinion by Judge Morrow, it is said: “In theft, the acquisition of the possession by the false pretext is sufficient, if done with the intent to appropriate, and followed by an appropriation.”

The case of Gibson v. State, 85 Tex.Cr.R. 462, 214 S.W. 341, opinion by Judge-Lattimore, cites with approval and quotes from the early case of Hornbeck v. State, 10 Tex.App. 408, as follows: “To constitute the offense as defined in this article, the taking being originally lawful, possession must be obtained by the employment of some false pretext, or it must be obtained with an intent existing in the mind of the taker, at the time the possession was obtained, to deprive the owner of its value and to appropriate the property to the use and benefit of the taker, and, besides these requisites, such a taking would not be complete so as to constitute the crime of theft, until the taker has so appropriated the property to his own use and benefit.”

Concluding that the state has failed to show appropriation of the property as an essential element of the offense for which the conviction was had, the judgment of the trial court is reversed and the cause remanded.


author: HAWKINS, Presiding Judge.

text:
    COMBS v. STATE.
    No. 21513.
    Court of Criminal Appeals of Texas.
    April 9, 1941.
    ■J. Mitch Johnson, of San Saba, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for the possession for the purpose of sale of intoxicating liquor in San Saba County, a dry area; the punishment assessed being a fine of $100.

The evidence upon which the conviction is based was procured as a result of a search of appellant’s private residence, which was a tent. The evidence as to the result of the search was objected to on the ground of a misdescription in the search warrant of the place to be searched. The objection was overruled, proper exception reserved, and the question is brought forward for review. The property to be searched was described in the affidavit for the search warrant and in the warrant itself as follows: “A certain private dwelling located in San Saba County, Texas, described as (a) tent walled up with planks about three feet with wooden door and glass panel in front, being a brown duck tent, located on the west side of Llano highway leading south out of San Saba, No. 16, about one-fourth of a mile in a southerly direction from the courthouse in San Saba Town; and being the next to the last tent on the right side going South, on the west side of the highway, fronting the highway, and within the corporate limits of the City of San Saba, occupied by Mrs. David Combs and her family as their home.”

The affidavit was signed by Will IT. Dor-an, who was the Sheriff of San Saba County, and by Huts Owen, a deputy sheriff. Upon the trial, the Sheriff testified as follows : “My name appears signed to the Affidavit, together with Mr. Owen’s, to search the private residence of Mrs. David Combs, and in said affidavit for said search warrant, before the Honorable H. Clyde Smith, I joined with Mr. Owen and stated, under my oath, among other things that the residence of the defendant, Mrs. David Combs, is located in San Saba County, Texas; that she Jived in a tent walled up with plank about 3 feet high, with a wooden door and glass panel front. I now state that that description was not true. I was describing a certain tent upon the exact location previously occupied by David Combs, the husband of the defendant, who is now dead. But, that tent or residence that I was describing has been torn down and moved away. That tent had a wooden door and glassed-in panel, but the residence that I did search I now find is a different tent. Mrs. David Combs, the defendant, had erected a new tent for her residence on the same land and it does not contain the glassed-in panel in front, as set out in the original search warrant signed by me, and I now state, under oath, that the affidavit signed by me and Mr. Owen to search the residence of the defendant, is not true and it is not the proper description of the tent searched by us. I wish to honestly make this correction, as I was wrong in the description.”

Mr. Owen, the deputy, gave testimony substantially the same as did the sheriff. Both officers are to be commended for their very frank acknowledgment of the error made in the description of the property. Under the authorities hereafter named, it appears that the trial court should have excluded the evidence discovered as a result of the search under the warrant in question. For a general discussion, of the description of the place to be searched, see 38 Tex.Jur., pp. 54, 56, secs. 31, 33; Cornelius on Search & Seizure, 2nd Ed., p. 467, sec. 197, etc.,; Blakemore on Prohibition, 3rd Ed., secs. 905 to 916, inclusive. See also Monroe v. State, 123 Tex.Cr.R. 84, 57 S.W.2d 856, and cases there cited; Smith v. State, 117 Tex.Cr.R. 303, 36 S.W.2d 532; Miller v. State, 134 Tex.Cr.R. 118, 114 S.W.2d 244.

The judgment is reversed and the cause remanded.