author: GRAVES, Judge. KRUEGER, Judge.

text:
    RICKMAN v. STATE.
    No. 20128.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    Rehearing Denied Jan. 3, 1940.

      George P. Brown and E. W. Merritt, both of McKinney, for appellant.
    H. H. Neilson, Co. Atty., of McKinney, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged with the murder of Marion Taylor, a motorcycle policeman of the town of McKinney, Texas, and upon his trial therefor he was given a death penalty by the jury.

A brief summary of the facts, taken from the State’s Attorney’s brief, is as follows:

“About 8 o’clock on the evening of March 2nd 1938 Marion Taylor, a city policeman, of the city of McKinney in Cbllin County, Texas, was killed, -by being shot eight times, three times in the right front breast, once in the right arm, and four times in the back, with a pistol by the defendant J. W. Rickman. The shooting took place in front of the Noles Filling Station in the north part of McKinney in Collin County, Texas. At the time Marion Taylor was killed he was on duty and was riding' a motorcycle on Highway 75.

“About 7 o’clock on the evening of March 2nd 1938 defendant J. W. Rick-man called a cab to come to 5519 E. Grand in Dallas, Texas. Henry Lee Jackson, who was a taxicab driver for Nichols Brothers, drove his taxicab to 5519 E. Grand in Dallas and picked up the defendant J. W. Rickman. Defendant directed the driver to go out on Greenville Avenue and when he got to the intersection of Lewis Street and Greenville Avenue defendant put a pistol in the back of the taxicab driver and said, ‘Get going and don’t make a bobble.’ Defendant forced the taxicab driver to drive his car down Highway No. 75 toward McKinney and told him if he didn’t make it go faster than 50 miles an hour he would kill him. All of the time coming toward McKinney the defendant had his gun between the shoulders of the taxicab driver, the taxicab driver sitting under the wheel and the defendant sitting in the back seat of the taxicab.' The taxicab driver told the defendant he did not have any license to operate out of the city and that a highway patrolman was liable to pick them up. The defendant told the taxicab driver to drive on, that he would take care of them, and kill him, meaning the taxicab driver, too, if anything happened. When the taxicab got to McKinney, the defendant forced the driver of the cab to detour around the public square until he got in the north end of the city of McKinney and then forced him to get back on Highway No. 75 in the north part of the city of McKinney and then told him to -‘Step on it and make the damn thing run.’ The taxicab driver made the taxicab run as fast as he could and while driving, the motorcycle policeman Marion Taylor rode up beside them and said to the driver ‘Pull over to the curb and stop.’ The evidence showed that when the taxicab passed Frank Waters’ filling station in the north part of the city of McKinney that the taxicab was traveling about 60 miles an hour' and the motorcycle policeman Marion Taylor overtook the cab about 100 yards north of the Frank Waters’ filling station and stopped it. Said Frank Waters’ filling station is in the north part of the city of McKinney.

“The taxicab driver stopped the car, the defendant having had his gun in his back all of the time coming up the highway. The motorcycle policeman pulled up to the car about even with the driver and put his foot on the running board of the car. The officer said ‘Where are you going ?’ The taxicab ■ driver did not answer but the defendant in the back seat said, ‘We are going four miles out in the country to see my sick mother.’ The motorcycle policeman said, ‘What is your name?’ and when that happened the taxicab driver gave the policeman a sign by closing his right hand with the thumb pointing toward his body and pointing back and forth several times toward where the defendant was. The defendant said his name was McCullough. This happened just immediately prior to the shooting. The police officer took hold of the back door and opened it and the defendant J. W. Rickman began shooting. He shot several times. The motorcycle policeman, Marion Taylor, crumpled forward on his motor. Defendant fired his gun two or three times before the motorcycle officer fired. The officer was in uniform and had a badge on his cap and one on his coat, as well as on his Sam Brown belt. The officer shot twice and the shots lodged, one in the back window and one in the roof of the taxicab, When the officer opened the back door with one hand he had his gun in the other hand. Immediately the door was opened the defendant began shooting. The officer never said anything to the defendant after he opened the door. He just grunted after the man shot him; he grunted one time after the defendant shot him, and his dead body was shot eight times. The testimony shows that the east line of the corporation of the city of McKinney ran through the center of the paved highway, and it seemed from the testimony that the cab when it stopped, while still on the pavement, was some few feet east of the center line of such road, and that the deceased officer’s motorcycle was also without the corporate line of said city a short distance.”

Appellant’s bill of exceptions No. 1 complains of the fact that the witness Henry Lee Jackson, the taxicab driver, was permitted to testify, over appellant’s objection, that after the deceased had stopped the taxicab, and was talking to both himself and appellant, the driver “closed his hand with the thumb pointing towards the driver’s body, and pointed it back and forth several times towards where the defendant was.” It is shown that immediately, or soon thereafter, the shooting began. It is also shown that the appellant was on the back seat of the car, and the driver in the front seat, with the officer with his foot on the running board of the car, or astride his motorcycle, which was right at the left side of the car. We are impressed with the idea that this is the transaction itself, all of which took from only two to four minutes in its happening, and such testimony is res gestae of this transaction. See 18 Tex.Jur., p. 293, et seq.

Bill of exceptions No. 2 is concerned with a conversation had by the deceased with A. G. Sparlin, a deputy sheriff, relative to the fact that one Jimmie Latham, a constable, had been up all night looking for J. W. Rickman, the appellant, and in that conversation the deceased, Marion Taylor, made the statement that he (Rickman) was the boy that stole the car at Wolfe City. This conversation was supposed to have taken place about 5 o’clock in the afternoon of the killing. To the same general effect is bill of exceptions No. 3 relative to the testimony of W. E. Button, another deputy sheriff, showing that on the same afternoon he had informed the deceased relative to hearing over a broadcast that a car had been stolen at Wolfe City. Bill of exceptions No. 4 is to the further effect that there was admitted, over appellant’s objection, the testimony of Alex Burk, a peace officer of the city of McKinney, who testified that on the afternoon of Marion Taylor’s death, about 6 o’clock, the deceased told the witness that he knew J. W. Rickman, the appellant, and Marion Taylor knew that the officers were looking for appellant for a felony committed in Hunt County the night before, and at such time the deceased gave witness a description of J. W. Rickman All three of these bills, so we think, can be treated together. We think all this testimony admissible as showing knowledge on the part of the deceased of the commission of a felony as a basis for a legal arrest, as well as showing an acquaintance with the appellant. Earles v. State, 52 Tex.Cr.R. 140, 106 S.W. 138. The deceased had no warrant of arrest for appellant, and of course if the detention of appellant was illegal, then under his right of self-defense he could use all the force necessary to effect his release from such illegal arrest. We are early met with this proposition in the case, and unless there-was a legal arrest, there are numerous charges refused by the trial court that should have been given herein.

We are impressed with the idea that there were four separate and distinct grounds- upon which this attempted arrest was legal, and that the above testimony was properly admitted as going to show the legality of such detention. The above testimony shows that the deceased was informed that J. W. Rickman had committed a felony, and that deceased was acquainted with Rickman, and that he was a fugitive from such felony. If that be true, and surely if he knew Rickman he recognized him when he saw him in the car, then under Art. 215, C.C.P., he would have the right to pursue and arrest the accused. It seems to us that it was admissible to show the acquaintance of the deceased with appellant, and also his knowledge of the commission of a felony by appellant. See Vaughn v. State, 134 Tex.Cr.R. 97, 113 S.W.2d 895.

A second ground justifying this arrest, so we think, is the fact that appellant was at the time in possession of a pistol, which pistol he had held in the hack of the cab driver all the way from Dallas to McKinney, and which he still had when accosted by the deceased on the first time in the streets of McKinney, and which he still had at the time of the killing'. True it is, however, that appellant ■contends that he was a traveler, and as •such exempt from the law prohibiting the ■carrying of a pistol on or about his person. We answer this contention by saying that he had only traveled a distance of about thirty-two miles in approximately an hour, and therefore was not such a traveler as was contemplated by Pen.Code 1925, art. 484. See Branch’s Penal Code, p. 562, Sec. 976, and, in the second place, a fugitive fleeing is not, under this statute relative to the carrying of arms, a person traveling. See Shelton v. State, 27 Tex.Cr.R. 443, 11 S.W. 457, 11 Am.St. Rep. 200; also see Harris v. State, Tex.Cr.App., 77 S.W. 610; also Art. 487, Penal Code, authorizing the arrest without warrant of any person guilty of violating the ■statute relative to carrying arms on or .about his person.

We think the testimony complained of was properly admitted as showing a basis for the possession of knowledge upon the part of Marion Taylor that •appellant had committed a felony, that he knew appellant, and that appellant was •escaping, after the commission of a fel■ony, with no time to procure a warrant for his arrest. The only defense made or •offered herein was that the attempted detention of appellant by the deceased was illegal, there being no warrant therefor in the deceased’s possession, and therefore that the appellant had the right un•der the law to enlarge himself from such ■detention, even going to the extent of taking the life of the officer, if necessary, in order to effect his release. It is the State’s contention herein that the presence ■of a warrant for appellant’s arrest was not necessary because of the fact that the appellant fell within the category of those permitted by statute to be arrested without warrant on account of his being at the instant of the attempted arrest actually engaged in the commission of various offenses, not only of certain misdemeanors for which an arrest could be made legally without having first obtained a warrant, but also of certain felonies in the presence of the one attempting such arrest; and that it was therefore the duty of appellant to submit himself to the custody of the deceased at such time. The testimony shows that the appellant in the city of Dallas had, a short time prior to the killing, forcibly taken possession of the person of the driver of the taxicab, and had also taken possession of his taxicab by means of the display of a pistol, a deadly weapon, and had at such time as well as continuously thereafter, up to the time of the killing, made an assault upon such driver by threatening him with such weapon thus unlawfully carried, which constituted a felony, and that he was in the position at sucli time of committing a theft of such taxicab, and was in the act of effecting his escape at the time the deceased attempted to question and detain him. Under these circumstances, if anyone of such enumerated offenses was present, the law did not require the presence of a warrant of arrest before such detention became legal, but the duty became clear that any citizen, though not an officer, had the right to arrest and detain appellant without being in possession of a legal warrant for his arrest.

Art. 212, C.C.P. provides that “a peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is, one classed as a felony, or as an ‘offense against the public peace.’ It is contended, however, that the deceased was only protected as a peace officer within the corporate limits of the city of McKinney, and that appellant’s attempted arrest took place outside these limits, and therefore he was outside of his delegated powers when he thus attempted such arrest. While not agreeing with such contention, nevertheless we say that' should we ignore the deceased’s official capacity as a peace officer, nevertheless he could make a legal arrest as a private citizen, or as “any other person” under the above article. We think it to be in consonance with the rules of reason to say that having eyes to see, the deceased could see and did see the pistol at some time during this tragedy, and the threatening attitude in which it was exhibited by appellant, and surely knew that an illegal and felonious assault was being made therewith by appellant. The testimony shows that appellant’s detention was initiated by the deceased coming alongside the speeding taxicab driver and ordering the driver to “pull over to the curb.” The deceased first questioned such driver, who directed the officer’s attention surreptitiously to the appellant sitting in the rear seat, who still had his pistol drawn on the driver. The deceased then addressed appellant, inquiring where he was going, and what was his name. Having received answers thereto, he opened the rear door, at which instant a fusillade of shots, — eight in number, all the appellant’s gun contained,- — ■ terminated the officer’s life. It would be contrary to all human experience for us to say that Mr. Taylor failed to see this weapon which was held by appellant on the cab driver’s back, and if such was seen by him, then he had the right as a private citizen to arrest this appellant without the presence of a warrant of arrest.

We think this attempted arrest can be justified as one in which no warrant of arrest was demanded to be present on the above grounds, without having to rely upon the provisions of other and further statutory enactments relative to an arrest without a warrant for violations of the road law, and thus believing we pre-termit a discussion of such other matters. This conclusion disposes of a major portion of the thirty-two requested and refused instructions to the jury.

It is further contended that the trial court should have charged the jury on the law of murder without malice, and special charges were presented to the trial court embodying that doctrine, which charges were by such court refused. It is fundamental that the trial court should only give in charge to the jury the law as applied to the facts presented in the case. It appears to us that- there are but two propositions presented by the proof in the case. If this was an unlawful arrest, then appellant was entitled to an acquittal on his plea of self-defense, and the court so instructed the jury. If this was a lawful arrest, then the appellant was guilty of murder with malice. It is contended, however, by appellant that the evidence relative to' his consuming quantities of intoxicating liquor on the clay of the killing, and his actions prior to leaving Dallas, evidencing a high degree of nervousness, and his suspicious actions while in Dallas on that day, would indicate that his mind was in such a condition as would evidence the fact that he was animated by such passions as show-ed a mind incapable of cool reflection at the time of the homicide. There is no further testimony indicating such a condition of the mind, save that just above referred to. Such testimony relative to the consumption of the intoxicating liquor, had a sufficient amount been taken as to induce a temporary insanity from its recent use, might have become proper as a subject for a charge thereon to the jury relative to a mitigation of the penalty, but we are not confronted with such a condition in this case. The consumption of such liquors was used only argumentatively as a basis for a requested charge on murder without malice. We are unwilling to extend the doctrine to that extent; nor do we have the power to thus amend Art. 36 of the Penal Code relative to intoxication as a defense.

The jury was well within their province, so we think, in holding that this was a legal arrest, and that the homicide was one of murder with malice. It it shown by the testimony of the cab driver that he had no license to operate a taxicab outside of Dallas, and that he told appellant that such was the fact, and that a highway patrolman would be liable to pick them up. Appellant told the driver to drive on, that he would take care of them, and kill him (the driver) too if anything happened. It is also shown that he repeatedly threatened the cab driver with death at the point of his pistol which he kept at all times against the driver’s back. We agree with the learned trial judge, since gone to his justly earned reward, that murder without malice did not appear in this case, and thus believing, the major propositions raised by appellant herein have been written upon. Those not written on have been carefully considered by us and are overruled.

This is a severe verdict and one that demands serious consideration by juries as well as appellate courts. The crime charged is itself a serious one, and if the State’s testimony is true, it strikes at the foundation of our social system laid out for the preservation of law and order, and the peace and happiness of the people. The jury saw fit to exact the extreme penalty from this appellant in what we believe to have been a fair and impartial trial, free from erroneous matters, and, so believing, we have no other alternative than to affirm the same. Appellant’s attorneys, appointed by the court, have exhibited both energy and research in their efforts in his behalf, for which they are to be commended.

This judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, complains of various statements in our original opinion as not justified by the record. We have again reviewed the record in the light of the objections addressed thereto, but remain of the same opinion as originally expressed by us. He first criticizes the following statement in our opinion: “The above testimony shows that the deceased was informed that J. W. Rickman had committed a felony and that the deceased was acquainted with Rickman, and that he was a fugitive from such felony. If that be true, and surely if he knew Rickman, he recognized him when he saw him in the car, then under Art. 215 C.C.P. he would have the right to pursue and arrest the accused.”

Appellant asks where there is any evidence that a felony had been committed? If a car was stolen, where is there any evidence to show such constituted a felony? We quote from the testimony given by Alex Burke as follows: “I know that on the afternoon of Wednesday, March 2, 1938, Marion Taylor knew that the officers were looking for J. W. Rickman for a felony committed in Hunt County on the night before. At that time Marion Taylor gave me a description of J. W. Rickman.”

It occurs to us that this testimony alone justified the statfement complained of in our original opinion. His second criticism is addressed to the following statement in our opinion: “A second ground justifying this arrest, so we think, is the fact that appellant was at the time in possession of a pistol, which pistol he held in the back of the cab driver all' the way from Dallas to McKinney, and which he still had when accosted by the deceased on the first time in the streets of McKinney, and which he still had at the time of the killing.”

He then asks where there is any proof that appellant still had the pistol when accosted by the deceased for the first time on the streets of McKinney and which he still had at the time of the killing?

We quote from the testimony of Henry-Lee Jackson, the cab driver: “He then continued to keep that gun stuck in my back, that pistol. That was the defendant, J. W. Rickman who did that. All’ the time I was coming from Dallas to-McKinney, he had' his gun between my shoulders, touching my body. The defendant had this gun in my back all the time-I was coming up that highway.”

That he shot the deceased, a city policeman, with a pistol when he undertook to-arrest him is not even questioned. Consequently he still had the pistol at that time. Here we have testimony that appellant was, by the use of a pistol, a prohibited weapon, making an assault upon the taxi driver, which is a felony in this-state, and for which the deceased was. justified in arresting appellant.

In his motion appellant also asks for proof that the deceased actually saw the-pistol in the hands of the appellant. Of course the deceased, who is dead and whose lips were closed by the fatal wounds-inflicted upon him by appellant, was the only person who knew this, but we may look to the circumstances testified to by others and if these circumstances logically lead to such a conclusion, the requirements of the law have been met. The deceased had eyes; he was looking at the occupants of the car; the windows of the car were down and there was nothing to obstruct his view; hence the only reasonable conclusion to be drawn from the circumstances is that the deceased saw appellant making an assault upon the cab driver with a prohibited weapon, which authorized him to make an arrest. Therefore it is obvious that several reasons existed for the arrest of appellant.

To answer each of the various arguments in appellant’s motion would extend this opinion to great length and serve no useful purpose. We deem it sufficient to say that in view of the fact that the extreme penalty was assessed against him, we have gone over the entire record with great care, but see no good reason for receding from the conclusions reached by us on original submission.

The motion for a rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: KRUEGER, Judge. GRAVES, Judge. '

license: Public Domain

text:
    BOWERS v. STATE.
    No. 20543.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1939.
    On Motion for Rehearing Dee. 20, 1939.
    C. C. McKinney and W. H. Crunk, both of Cooper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for selling whisky in dry area; the punishment assessed is a fine of $500.

Appellant complains of the court’s action in declining to sustain his motion to quash the complaint and information. We have carefully examined them and deem both sufficient to charge the offense.

The state’s testimony shows that on the 5th day of January, 1939, an agent of the Texas Liquor Control Board, accompanied by another party, went to appellant’s home and purchased a pint of whisky.

Appellant and a number of persons who were present at the time testified that no transaction took place between them. Thus it will be seen that an issue of fact was raised, which the jury, who are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, decided adversely to appellant’s contention. We deem the evidence sufficient to support the jury’s conclusion of appellant’s guilt.

Bill number three is qualified by the trial court and as thus qualified is without merit. Bills number 11 through 14 inclusive make objections to the court’s charge, but there were no special charges presented to the court accompanied by a request that they be given. This is a. misdemeanor case and a mere objection to the court’s charge is not sufficient. An accused is required to prepare and present special instructions covering any defect in the court’s charge and accompany it with a request that the special charge be given. See Branch’s Ann.P.C., p. 939, Sec. 1596, and authorities cited. Bills numbers five through ten are in question and answer form without a certificate by the trial judge that it was necessary that they be in such form. Hence we cannot consider the same. See Palmer v. State, 134 Tex.Cr.R. 474, 116 S.W.2d 386, 387, and authorities cited.

By bill of exception number four appellant complains because the court declined to instruct the jury that McDonald was an accomplice and refused to give a special requested instruction to that effect. Appellant’s contention in this respect is without merit. There was no evidence which brought McDonald within the category of an accomplice. The rule on this subject has been well settled since the case of Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906.

All of the other complaints urged by the appellant have been carefully examined and are deemed to be without merit.

No error of a reversible nature appearing, 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.

GRAVES, Judge. '

We were in error in our original opinion wherein we refused to consider bills of exceptions Nos. 5, 6, 7, 9 and 10 because of the fact that same were in question and answer form. We have heretofore held that where the complaint relates solely to the asking of an improper question, of a necessity the question must be set forth in the bill. We quote from Young v. State, 92 Tex.Cr.R. 277, 243 S.W. 472, 473: “The state’s objection to bills of exception Nos. 3, 4, and 5 because in question and answer form is not tenable. The desire of appellant was to present to this court his complaint of the asking of hurtful questions, whose substantial repetition by the state is urged as injurious, and in such case the bill must set out the questions and answers complained of.”

However bill No. 10 is multifarious, containing three subject matters, and will not be considered. Bill No. 6 contains testimony a portion of which we think is admissible, and is therefore overruled. Bill No. 7 we think evidences no error, the testimony evidencing á legitimate inquiry. It is observed, however, that the trial court in an excess of caution instructed the jury not to consider the 'same. Bill No. 9 evidences no error. Bill No. 5 however gives us concern, and is based upon the asking' of the two following questions of one Hugh Cap-erton, a witness for appellant:

“Question : ‘Do you know whether or not the place you live (being the residence of defendant) has been under a liquor injunction ?’
“Question: ‘Do you know of your own knowledge whether the defendant has been convicted of violating any liquor injunction?’ ”

The appellant was on trial for the sale of one-half pint of intoxicating liquor to an agent of the Liquor Control Board, which agent alone testified to the sale, while appellant and three other witnesses denied such sale. The jury gave the appellant a penalty of a fine of $500, and we are unable to say that the asking of such a line of questions was not influential at least in the giving of such a severe penalty.

We do not think appellant has had a fair trial, and the motion for a rehearing is granted, the judgment of affirmance set aside, and the judgment is now reversed and the cause remanded.


author: KRUEGER, Judge.

text:
    CLARK v. STATE.
    No. 20599.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.

      Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is adultery. The punishment assessed is a fine of $500.

Appellant’s first complaint is that the court erred in overruling his motion to quash the jury panel. He charged in his motion that the county judge had intentionally and arbitrarily declined, at any previous terms of said court, to appoint a jury commission to select a jury panel for the August Term, and that the Court had adopted and pursued this practice for the past two or three years in order to save the expense. This motion, and the matters charged in the motion, were not controverted by the state; in fact it seems that the state agreed that the facts relative thereto as set out in said motion are correct.

Art. 2109, R.C.S., provides as follows:

“The county court shall, at its first term after the last day of December and the last day of June of each year, a'ppoint three jury commissioners for said court, having the same qualifications as jury commissioners for the district court. The same proceedings shall be had in the county court by its officers and said commissioners to procure jurors as are required by this title for similar proceedings in the district court, except as modified by the provisions of this article. * * *
“2. Said commissioners shall select jurors for all the terms of the county court to be held within six months after the adjournment of the first week of said court after the dates first named. The county judge shall designate the number of jurors to be so selected for each term and week.”

This is a mandatory legislative provision which cannot be intentionally or arbitrarily disregarded. The Legislature however, by the enactment of Art. 2108, R.C.S., provided that if from any cause, the jury commissioners should not be appointed at the time prescribed, or should fail to select jurors as required, or the jury list returned into court should be lost or destroyed, the court should then proceed to supply a sufficient number of jurors for the term, and when deemed necessary he might appoint jury commissioners for that purpose. The authority granted under the last named article may only be resorted to in the event that from some good cause no jury commissioners had been appointed at the prescribed time. There must be, some real cause, such as illness of the presiding judge, inadvertence or oversight on his part, etc. The judge cannot intentionally or arbitrarily decline to follow the procedure prescribed relative thereto, and contend that this was such cause as would authorize him to resort to Art. 2108, supra, to supply prospective jurors. This court, by an unbroken line of decisions, has held that this cannot legally be done. See White v. State, 45 Tex.Cr.R. 597, 78 S.W. 1066, 1067; Irvin v. State, 57 Tex.Cr.R. 331, 332, 123 S.W. 127; Woolen v. State, 68 Tex.Cr.R. 189, 150 S.W. 1165; Donegan v. State, 89 Tex.Cr.R. 193, 195, 230 S.W. 166; Martinez v. State, 134 Tex.Cr.R. 180, 114 S.W.2d 874. We think .the motion to quash should have been sustained.

Appellant also complains of the sufficiency of the evidence to sustain his conviction, in that the proof relative to Daisey Cunniff being a married woman at the time of the alleged offense is very unsatisfactory. It seems to us that if she were married at the time, this fact could be shown more definitely. No one testified to ever having seen her supposed husband anywhere about the place where she lived. See Webb v. State, 24 Tex.App. 164, 5 S.W. 651; Smith v. State, 51 Tex.Cr.R. 645, 104 S.W. 899; Dixon v. State, 50 Tex.Cr.R. 385, 97 S.W. 692; Burnett v. State, 44 Tex.Cr.R. 226, 70 S.W. 207; 1 Tex.Juris, Secs. 24 & 25, p. 775. In view of the disposition we are making of the cause we do not deem it necessary to discuss the other complaints urged by appellant.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    BENJAMIN v. STATE.
    No. 20683.
    Court of Criminal Appeals of Texas.
    Dec. 20, 1939.
    D. F. Sanders and John A. Veillon, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for selling whisky without having a permit from the Texas Liquor Control Board, punishment assessed being thirty days in jail.

The prosecution was under subdivision (a), Art. 666 — 4, Vernon’s Tex.Ann.P.C., Vol. 1, same being Sec. 4(a) of Art. 1 of the “Texas Liquor Control Act,” which makes it an offense, among others, to sell “liquor” — as defined in said Act— in “wet area without first having procured a permit.”

It was agreed in open court that appellant had no such permit.

The alleged purchaser testified that he was an inspector for the Liquor Control Board; that he went to appellant’s residence and bought from her a drink of whisky for which he paid ten cents, and then bought from her a pint of whisky for which he paid her one dollar; that he poured the drink into a half-pint container, which together with the pint purchased, were identified on the trial, and introduced in evidence. Appellant denied having sold the drink of whisky and claimed that she let the purchaser have the pint as a matter of accommodation, and had written a note intending to send it and the dollar by a messenger to get other whisky to replace the pint mentioned.

No bills of exception are in the record. Two special charges were requested upon subjects not mentioned in the court’s charge. One presented to the jury the question whether the purchaser was an accomplice witness, in connection with an instruction on that subject. It is appellant’s position that her evidence raised the principle discussed in Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906 and other cases cited by counsel. We think the fact is overlooked, that in our present “Liquor Control Act” (Art. 666 — 23a, subdivision 8, Vernon’s Tex.Ann.P.C., Vol. 1,), same being Sec. 23a, subdivision (8), Art. 1 (“Texas Liquor Control Act”), it is provided that “Upon a trial for a violation of any provision of either Article I or Article II of this Act, a conviction may be had upon the uncorroborated testimony of an accomplite.” The trial court properly declined to give the requested charge.

The other requested charge presented the issue of appellant acting as agent for the purchaser, and would have instructed the jury that if the alleged purchaser gave appellant one dollar and requested her to purchase some whisky for him, and that she was sending another person to so purchase the whisky, and that .she did not sell the purchaser a drink of whisky, they should acquit. We think the charge was correctly refused as the evidence did not raise the issue. Appellant testified on direct examination as follows:

“I didn’t have that whisky for sale, I drink all the time when I get money, for my own use it was, and I wasn’t expecting any profit out of it. It cost a dollar and that is what I sold it to him for, it was my liquor and I was letting him have it and sending for some more, just wanted some to drink on Saturday night. I always gets hot on Saturday night and I was drinking that.”

It appears from her own testimony that appellant sold and delivered to the purchaser a pint of whisky. Whether or not she made a profit, or whether she expected to use the dollar to renew her supply of whisky was beside the question. The transaction was nevertheless a sale.

The judgment is affirmed.


author: GRAVES, Judge. GRAVES, Judge. -

text:
    GUERRA et al. v. STATE.
    No. 20594.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1939.
    On Motion to Reinstate Appeal Dec. 20, 1939.
    R. B. Rentfro, Jr., of Brownsville, for Guerra.
    A. Hernandez, of Brownsville, for Perez.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This record is before us containing no showing in the minutes of the lower court of a sentence having been pronounced, nor any notice of appeal having been given herein. The jurisdiction of this court has therefore not attached. See Branch’s Peí-nal Code, p. 302, Sec. 588.

The appeal is dismissed.

On Motion to Re-Instate Appeal

GRAVES, Judge. -

This cause has been heretofore dismissed by this court because of the fact that no sentence appeared in the record. It now appears that the minutes of the court below contain a proper sentence, but the clerk through inadvertence failed to incorporate the same in the record, and that a supplemental transcript presented to us shows a proper sentence. The judgment of dismissal is set aside, and we proceed to consider the same upon its merits.

The appellants both pleaded guilty be-' fore the court to the theft of a horse, and were both given a sentence of five years in the penitentiary.

There are no bills of exception in the record. However there is much complaint of the fact that these appellants were promised a suspended sentence, in the event of a plea of guilty, by some of the officers of the court, not including the judge. This contention, however, is not borne out by the record presented to this court. The facts are very meager, and had there been any objection .made to the major portion thereof they would doubtless have been excluded ; but unfortunately for appellants, through their attorneys, in open court they admitted all the allegations contained in the indictment, and thus made a judicial confession of their guilt in the joint theft of a horse. This confession alone would be a sufficient basis for the upholding of a verdict of guilt. See 18 Tex.Jur. 183.

It is also worthy of note that each appellant took the witness stand and implicated not only himself but also each other in this offense.

Under the record as presented to us we have no other recourse than to affirm this judgment, which is accordingly done.


author: SMITH, Chief Justice.

text:
    FERGUSON et ux. v. MELLINBRUCK.
    No. 10620.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 15, 1939.
    Rehearing Denied Dec. 30, 1939.
    Milton J. Baird, of Edinburg, for plaintiffs in error.
    L. J. Polk, of Pharr, for defendant in error.
   SMITH, Chief Justice.

This action grew out of a contract for the exchange of properties, in which it was stipulated that plaintiffs in error, Ferguson, convey to defendant in error, Mellin-bruck, certain land in Kansas City, Missouri, and that defendant in error convey to plaintiffs in error certain lands in Hidal-go County, Texas, each party to assume certain outstanding indebtedness against the property to be conveyed to him in the exchange. In addition to this assumption plaintiffs in error agreed to pay defendant in error a certain amount in cash and deliver to him a certain diamond ring as part of the consideration for the exchange. It seems to be conceded that plaintiff in error paid over the money and delivered the ring to defendant in error, but after-wards repudiated the contract, and, still later, brought this action to recover the money and ring from defendant. Judgment, based on jury findings, was rendered denying recovery to the Fergusons, who have appealed.

As the parties occupy the same positions on appeal as they did- below, they will be referred to as plaintiffs and defendant, respectively, as in the trial court. .

The record conclusively shows that plaintiffs’ cause of action accrued, by reason of their renunciation of the contract, on or before October 1, 1933, and while it appears that this suit was filed below on September 6, 1937, it was further shown, and the jury found, that issuance of citation thereon was delayed, at the instance of plaintiffs’ attorneys, until October 14th. In the meantime, and not later than October 1st, four years’ time had elapsed since plaintiffs’ cause of action had accrued and the statute of four years’ limitation therefore barred the action, Vernon’s Ann.Civ. St. art. 5529, unless the mere filing of the suit, unaffected by plaintiffs’ intentional procurement of the delayed issuance and service of citation, had the effect of intercepting and averting the bar, by stopping the running of the limitation.

It is settled law in this State that the mere filing of a suit, without the intention of plaintiff to forthwith procure issuance and service of citation, is ineffectual to affect limitation, and when the plaintiff by his conduct or that of his attorneys (Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645) prevents or postpones issuance and service of citation until after the lapse of the period of limitation the bar becomes effectual. 28 Tex.Jur. pp. 193, 195, §§ 100, 101. The evidence on this question, and the jury finding thereon, support the trial court’s conclusion and the judgment based thereon, that plaintiffs’ cause of action was barred by the statute, and that judgment must be affirmed, unless relevant procedural error requires reversal.

This question of the conduct of plaintiffs in suppressing issuance and service of citation was raised in their first assignment of error, and briefed under several propositions thereunder. The issue was submitted to the jury by this question: “Do you find from a preponderance of the evidence that the fact that the citation introduced in evidence in this case was not issued until October 14, 1937, was occasioned by any act or conduct of the plaintiffs’ attorneys or either of them?”

Plaintiffs’ first proposition under this assignment is that the “issue submits a question of law, and not one of fact for the determination of the jury.” We overrule the proposition because, in our opinion, the specific question calls for the determination of an issue of fact.

Plaintiffs’ second proposition under this assignment is that the question submitted does not require the jury to find “as to the existence or non-existence of an ultimate fact, and the jury’s answer thereto is insufficient to.support the judgment that plaintiffs did not prosecute their suit within four years.” The first objection is, ¡obviously, without merit, and the second, even if well taken, does not affect the propriety of submitting this particular issue.

In his third and last proposition relating to the question of limitation, plaintiff contends the evidence was insufficient to warrant the submission of the issue. We overrule the proposition. The evidence was sufficient, if not conclusive against plaintiff, on the issue. In this proposition plaintiff again urges that the “answers of the jury to the said question is insufficient to support the judgment that plaintiffs did not file and prosecute their suit within four years.” We repeat, however, that that objection did not affect the propriety of submitting this particular issue.

In their second assignment of error plaintiffs complain of the refusal of the trial judge to direct a verdict for plaintiffs. The only proposition under this assignment covers six pages of plaintiffs’ brief, in the form of a statement of the case, setting out each of the several contentions of the parties, and raising numerous questions of law and fact, and is so multifarious and so intermingles those questions as to prohibit orderly consideration on appeal. Nevertheless, the proposition, or at least the assignment of error on which the proposition purports to rest, must be overruled, on the ground that under the record the trial judge was not authorized to direct a verdict for plaintiffs. For a like reason we overrule plaintiffs’ fourth and last assignment of error and propositions thereunder.

In ■ their third assignment of error and the proposition thereunder plaintiffs complain of the submission of a certain special issue to the jury, but as they made no objection in the trial court to siich .submission, they cannot complain of it on appeal.

The judgment is affirmed.


author: CHRISTIAN, Judge. ■ GRAVES, Judge.

text:
    CORNELL v. STATE.
    No. 20495.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    On Motion to Reinstate Appeal Dec. 20, 1939.
    Williford, Williford & Bond, of Fair-field, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge. ■

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

The caption fails to show the date of the adjournment of the trial court. Under the decisions of this court, the appeal must be dismissed. Holder v. State, 113 Tex.Cr.R. 81, 18 S.W.2d 661

Appellant is granted fifteen days from this date to perfect the record in the respect mentioned.

The appeal is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

GRAVES, Judge.

This cause having been dismissed on account of a defect in the caption thereof, such has been now shown to have been an inadvertence upon the part of the district clerk, who has filed a supplemental transcript remedying such defect, and this cause is reinstated and we proceed to consider the same upon its merits.

Appellant’s bill of exceptions No. 1 complains of the introduction of a conversation had with a deputy sheriff in Dallas County, such deputy being the one who finally arrested appellant and his brother for the theft of these hogs. It appears from the bill’s qualification that the conversation here complained of took place prior to any arrest upon the deputy’s part, and it also appears that the main testimony given by such deputy was also given to the jury by appellant when he took the witness stand in his own behalf. Practically the only testimony complained of in this bill is that appellant told such officer that the three hogs that the State contends were the stolen hogs belonged to appellant. As suggested above, appellant so testified himself upon his trial, and we see no reason to think that he was injured by allowing the deputy to testify to the conversation had at Dallas, which was in substance to the same effect.

Bill of exceptions No. 2 complains of the court’s failure to embody in his charge to the jury appellant’s requested instruction to the effect that if they believed, or had a reasonable doubt thereof, that the hogs in question had been purchased by appellant and his brother from two other parties than the complaining witness Cannon Moore, then to acquit the appellant. We find that in paragraphs eight and nine of the charge the court gave, in substance, practically the requested charge, and we see no error herein reflected. -

We are not impressed with the merit of matters contained in bills Nos. 3, 4, 5, 6 and 7, and they are overruled.

Appellant also complains of certain alleged misconduct of the jury. The court heard testimony relative thereto and overruled such complaint. This is usually a matter for the discretion of the court. However we have carefully read the testimony of the jurors taken on the hearing of the motion for a new trial, and must confess we see no grounds for a complaint of misconduct upon their part.

We have carefully considered all bills and same are deemed to be without merit, and are overruled.

Finding no error in the record, the judgment is affirmed.


author: WILLIAMS, Justice.

text:
    TAPP v. TAPP.
    No. 5455.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 12, 1939.
    On Rehearing Nov. 16, 1939.
    On Second Motion for Rehearing Dec. 7, 1939.

      McCombs & Andress, of Dallas, for plaintiff in error.
    T. J. Ramey and Vern D. Adamson, both of Sulphur Springs, and Wm. J. Fanning, of Austin, for defendant in error.
   WILLIAMS, Justice.

' H. W. Tapp, plaintiff below, filed this suit against Mrs. Blanche Tapp for partition and adjustment of equities arising out of their ownership as tenants in common and his management and care of a house and lot situated in Sulphur Springs, Texas.

Plaintiff, his brother, J. M. Tapp, and two sisters inherited the property from their mother, Mrs. Ida Tapp, who died intestate October 20, 1927. No administration was had upon her estate. J. M. Tapp died January S, 1928, bequeathing his interest to his wife, Blanche. He had no children. In August 1936, this will was admitted to probate as a muniment of title ■only. H. W. Tapp purchased the interest of his sisters after the death of his brother ■and prior to this suit. He therefore became the owner of either a % or a ⅞ interest, and Mrs. Blanche Tapp became the owner of the ’remainder, depending upon the validity and effect to be given certain probate proceedings had in Dallas County, later herein discussed.

Upon the death of Mrs. Ida Tapp plaintiff assumed control of,the property. From ■the time of her death until he filed his first .amended original petition on September 25, .1937, a period of approximately ten years, ;plaintiff managed the property, if not with the consent of defendant, at least with her ■tacit approval. During this period of time plaintiff collected rentals and expended -various sums for taxes, insurance, repairs, improvements, and other items. Defendant never occupied the property or made a demand for its use or for an accounting. The record does not reflect that she ever visited the property after her husband’s death. She resided in Dallas. The first count in plaintiff’s amended petition might indicate an adverse possession, but the evidence clearly shows that he recognized defendant 'owned an interest in this property.

In.the alternative, under Count 2,,plain-tiff alleged that he was the owner of a ⅞ undivided interest and defendant the owner of the remainder. ’ He further pleaded in detail the various sums received and expended by him, and sought to charge defendant with ⅛ of the total sum expended, less ⅛ of the rentals received. As reflected in the judgment, the court found plaintiff had collected $2,242 in rentals and had expended for improvements and repairs $1,093.31; last illness and burial expenses of Mrs. Ida Tapp, $1,034.10; for the discharge and payment of a mechanic’s lien on the property $140.57; and for taxes and insurance $1,245.05. The court decreed to H. W. Tapp a ¾ undivided interest and to Mrs. Blanche Tapp a ½, with a lien charged against her interest'in favor of plaintiff in the sum of $317.75, which was the difference, as calculated, between ¾, the expenditures and ⅛, the rentals received. A receiver was appointed and the property ordered sold.

After the death of Mrs. Ida Tapp the house was overhauled so as to convert it into a duplex apartment. For use as a duplex an additional complete bathroom with equipment was installed, including necessary gas, water and electric lines. From time to time over the period of ten years repairs and other improvements were made. Plaintiff in his pleadings accounted for all the rentals actually received by him from the duplex. He alleged that he had expended the total sum of $1,093.91 to keep the property in repair and in rentable condition so as to produce an income, itemizing each expenditure.

Relying upon the established rule in Texas as held in O’Neil v. O’Neil, Tex.Civ.App., 77 S.W.2d 554; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620; and Davis v. Davis, Tex.Civ.App., 108 S.W.2d 681, defendant contends that “Regardless of the amount of advances which is traced into the improvements of the specific property, the amount to be allowed upon partition is still" limited to the ■ amount of enhancement ■in value, of the improved property due to the advances, which still exist at the time of the petition.” It is a fact', as'contended by defendant, that no attempt was made under the above rule to show in what amount the property had been enhanced in value. Likewise there was no showing made in what amount these alleged expenditures for betterment of the property had increased the rental income. It is obvious that the improvements made the property rentable as a duplex for which plaintiff collected additional or increased rentals: Thus both benefited from the betterments made on the common property. This record reflects these betterments and repairs were reasonable and made in good faith. The court in his calculations allowed plaintiff recovery for the full amount expended for repairs and improvements. And likewise the defendant was credited for the full amount of the rentals which included the increased rentals by reason of the improvements. Under such facts to limit plaintiff’s credit for bettertnents made by him to the amount tha»t same enhanced the value of the property at the time of partition, which might be at a time years later when a material part of such betterments may have deteriorated, and then to charge to this improving tenant the full .rentals, including those resulting from such expenditures, would not be just or equitable. If defendant is to share in the increased rentals, then she should be charged with her pro rata part of the cost of the repairs and improvements, for one who seeks equity must do equity. This action of the court is sustained. Ventre v. Tiscornia, 23 Cal.App. 598, 138 P. 954; Pickering v. Pickering, 63 N.H. 468, 3 A. 744; Fenton v. Wendell, 116 Mich. 45, 74 N.W. 384, 72 Am.St.Rep. 502; Byrne v. Byrne, 289 Mo. 109, 233 S.W. 461; 47 C.J. p. 477.

In the accounting defendant was denied a recovery for the reasonable rental value of one of the apartments which plaintiff permitted his adult married son to occupy for more than two years. Plaintiff made no demand for rents or exerted any effort to obtain possession from his son. Plaintiff sought and was awarded the full amount of his expenditures, a part of which was used to convert the residence into two apartments. Accordingly, under such a situation, equity would require him to account for the reasonable rental value of the apartment so used by his son. As stated in Storey’s Equity, 14th Ed., § 481: “No man’has right to prefer the claims of affection to those of justice.”

Plaintiff sought and was allowed by the court a recovery for the amount of his alleged expenditures in the payment and discharge of the mechanic’s • lien against the property, and for expenses of last illness and burial of Mrs. Ida Tapp. These payments were made more than nine years prior to this suit. Defendant insists that as they were never presented and allowed as a claim in administration against the estate, the two and four year statutes of limitation now bar plaintiff from the recovery of such expenditures. Such limita tion statutes are.not applicable under the facts as we have here in this suit for partition and adjustment of equities between tenants in common. As stated in 11 T.J. 482, “The relation of cotenancy is a voluntary one in the sense that' its continuance is dependent at all times upon the assent of all the cotenants, so that like an ordinary copartnership, it continues at the will of its members. So long as their will exists there is no cause of action and the statute never starts.” Branch v. Makieg, 9 Tex.Civ.App. 399, 28 S.W. 1050. ■ However, a recovery for such expenditures as a charge against the common property is predicated upon pleading and proof that a. valid subsisting lien or charge in the amount-of such indebtedness against the common property existed. at the time of its payment by a tenant in common.

If plaintiff’s claim of $1,034.10 for last illness and burial expenses of Mrs. Ida Tapp would have constituted a valid preference claim or a charge against this, the sole property belonging to the decedent’s estate, it is thought that such a claim, subject to the same defenses, classification and limitations applicable in a probate proceeding, could be considered and allowed in the adjustment of equities in this partition suit. Plaintiff, who was engaged in the furniture and undertaking business, on cross-examination, testified that his mother had been a copartner with him and owned a working share in the business until her death, when he became the sole owner. When asked what kind of share he answered : “That I would take care of her as long as she lived, pay all bills and take care of her until she died.” Under this admission, in no wise controverted or otherwise explained, this consideration so described would present a defense in probate as well as here to this claim, at least to the amount of such expenses incurred by plaintiff prior to his mother’s death.

Defendant introduced in evidence a certified copy of the will of J. M. Tapp which bequeathed to her his ¼ interest in the property, and a certified copy of the order which admitted this will to probate as a muniment of title by the county court of Dallas County as recorded in tire probate minutes of said court. This order states “that this court has jurisdiction to probate and record said instrument in writing as being the last will and testament of James M. Tapp as a muniment of title.” Other recitals not necessary to set out show all legal steps necessary to admit such will to probate and record had been complied with. This order admitting the will to probate is signed “C. A. Matthaei, Special Judge of County Court of Dallas County, Texas,” but does not show how he became special judge. Defendant did not attempt to show such qualification by any records out of the county court. Plaintiff, under cross-assignment of error for the first time on this appeal, contends that the order admitting this will to probate as a muniment of title was coram non judice and a nullity because an affirmative showing was not made that such special judge had been legally selected or appointed to act as such. Plaintiff did not attempt to show; by any record that this acting judge was disqualified. Plaintiff is here making a collateral attack upon the order admitting the will to probate. In Weems v. Masterson, 80 Tex. 45, 15 S.W. 590, 591, determinative of this contention, it is said: * * That county courts, in all matters relating to the administration of estates of deceased persons and minors, under the constitution of 1845, as under the present constitution, were courts of general jurisdiction as to all matters within the scope of the powers conferred upon them, must be deemed the settled law of this state. * * * From this it follows that all presumptions will be indulged in favor of the jurisdiction of such courts, when exercised over a subject-matter confided to them by law, that will be in favor of the .jurisdiction of any other court of general jurisdiction, and that their judgments and decrees cannot be collaterally attacked unless the record shows the want of jurisdiction. In the absence of such a showing it must be presumed that the jurisdiction exercised in a given case was the exercise of lawful power.”

See, also, Sloan v. Woods, Tex.Com.App., 25 S.W.2d 309; Dallas Joint Stock Land Bank of Dallas v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046, 112 S.W.2d 173. Justice Leslie of the East-Land Court of Civil Appeals in Compere v. Girand, 42 S.W.2d 278, in a very able and exhaustive opinion reiterates the above rule and reviews many decisions bearing upon the propositions here raised.

Plaintiff was entitled to recover as. awarded by the court the amount he expended in discharge of the taxes due against this common property which accrued for 1927 and all .subsequent years. He likewise is entitled to recover for his expenditures for insurance premiums in the protection of this property, provided the evidence shows such insurance also-protected the interest of defendant. Plaintiff is entitled to the $140.57 item in the discharge of the mechanic’s lien against the common property if not barred by the four year statute of limitation at the time plaintiff paid same. „

The objection to the admissibility of certain evidence given by plaintiff in regard to the expenditures made by him is not likely to occur on another trial.

All other assignments and cross-assignments have been considered and are overruled.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

Defendant in Error, H. W. Tapp, in his motion for rehearing has filed and tendered a remittitur of $246.40 to cover the items in evidence upon which this cause was reversed and remanded. The amount is definitely ascertainable from the evidence. Accordingly the former judgment reversing and remanding the cause is set aside and the judgment of the trial court, less the sum of $246.40, remitted, is affirmed. Article 1861, R.C.S. of 1925.

On Second Motion for Rehearing.

Upon reconsideration we have concluded that we were in error in affirming the judgment of the trial court less a re-mittitur. Litigants do not agree upon the amount of remittitur which was tendered conditionally. Accordingly, the former order of affirmance is set aside and vacated, and the judgment reversing and remanding this cause to the trial court is reinstated and the same is reversed and remanded.


author: PRICE, Chief Justice.

text:
    FLEWELLEN et al. v. SIMMS OIL CO. et al.
    No. 3880.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1939.
    Rehearing Denied Dec. 14, 1939.

      D. R. Bullard, of Houston, and Saye & Saye, of Longview, for appellants.
    Y. P. Broome, of Tulsa, Old., W. H. Sanford and Conan Cantwell, Thompson, Knight, Baker, Harris & Wright, and Turner, Rodgers, Winn & Sellers, all of Dallas, and Clay Tallman and Donald Campbell, both of Tulsa, Old., for appellees.
   PRICE, Chief Justice.

This is an action instituted by plaintiffs to recover damages in the sum of $500,000 against defendants (appellees) Simms Oil Company, Tide Water Associated Oil Company, and Stanolind Oil and Gas Company, for the alleged breach of an implied covenant to develop for oil and gas an area held under an oil and gas lease upon which the said defendants, as to 374 acres involved, were bound to the same covenants and obligations as the original lessee. The plaintiffs alleged that they were the owners of fractional interests in the one-eighth royalty interest reserved in said lease. Fidelity Oil and Royalty Company and W. L. Goldston were joined as defendants as owners of the other portion of said one-eighth royalty interest. Said Fidelity Oil and Royalty Company and W. L. Goldston (here appellants) filed an answer consisting of a cross action against the other three defendants, seeking damages in the sum of $150,000 based on the royalty interest held by them and made substantially the same allegations as made by plaintiffs. The ap-pellees each interposed a general exception to the petition of plaintiffs and to the cross action of the other two defendants. These general exceptions were each sustained, and plaintiffs and cross-plaintiffs declining to amend, the court dismissed their action. Plaintiffs and cross-plaintiffs duly perfected their appeal, and the case is here for review.

In our consideration and treatment of the question involved it might tend to clarify matters if two well-settled and elementary legal principles are at all times borne in mind: (1) A general demurrer' admits all of the pertinent facts well pleaded by the plaintiffs; (2) mere conclusions and facts at variance with the exhibit attached evidencing the contract upon which the legal duty is sought to be founded are not to be considered in determining the sufficiency of the petition. Malone v. El Paso County Water Improvement District No. 1, Tex.Civ.App., 20 S.W.2d 815; Reeves v. Pecos County Water Improvement District No. 1, Tex.Civ.App., 293 S.W. 923; Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61. This additional proposition might also be stated: That, challenged by a general demurrer, the allegations of plaintiffs are to be given a liberal construction.

The sole question involved is the sufficiency of the pleadings. Hence it is necessary to set forth literally the vital and controlling allegations of plaintiffs’ petition. A large portion of same may be summarized by stating that by pertinent and sufficient allegations it set forth the interest of appellants in the royalty interest reserved in the lease, and that the appellees were bound by the stipulations contained in the lease. Paragraphs ten to thirteen, inclusive, were as follows:

"X. In the year 1930 the East Texas Oil Field was discovered. Rapid development soon proved that it was a large oil pool, approximately fifty miles in length north and south and from five to twelve miles wide east and west and was one reservoir. As early as April, 1931, it was definitely proven that the 374 acres above mentioned, and being the subject of this law suit, or at least a part thereof, would produce oil in paying quantities, and on June 3rd, 1931, a well was brought in on the north 200 acres of the 987 acre tract hereinabove described, with a producing capacity in excess of 10,000 barrels of oil per day, and with a saturated sand thickness in excess of thirty-five feet. In the meantime a large number of wells had been brought in on the structure several miles south of the above mentioned well, which definitely proved that the 374 acre lease in question would produce oil in large and paying quantities. Thereupon it became the duty of the defendants, Stanolind Oil & Gas Company and Simms Oil Company, to proceed with the development of said 374 acre tract by continuously drilling the same in á workmanlike manner with reasonable diligence, until the entire tract had been drilled to a sufficient density to recover the greatest amount of recoverable oil imbedded in the sand beneath the surface area covered by said lease; that a reasonable program of development required'the drilling on said tract of at least two wells each month until the tract was drilled to a density of one well to approximately four acres, which would have resulted in 93 wells having been drilled on said property not later than the 1st of March, 1935.

“Notwithstanding the aforesaid facts the defendants, Stanolind Oil & Gas Company and Simms Oil Company, wholly failed and refused to perform the implied conditions of said lease requiring reasonable development thereof after the discovery of oil on said lands, and did not drill a well thereon until October 11th, 1931. Between that time and November 11th, .1933, they completed only twenty-four wells and then abandoned further drilling operations until July, 1934, the next well being brought in on July 6th, 1934, and being styled Well No. 26. From July 6th, 1934, to December 7th, 1935, said defendants drilled thirteen additional wells and thereupon advised the plaintiffs that they considered that the lease was fully developed, but to satisfy the demands of the plaintiffs they would drill two or three more wells on the property, provided no suit was instituted by the plaintiffs to compel additional drilling or to recover damages resulting from the dilatory tactics of the defendants in failing to reasonably develop said premises.

“Thereupon on the 1st day of February, 1936, this action was instituted, seeking damages and an order of this court requiring the defendants to specifically perform the terms and conditions of the lease contract hereinabove mentioned and praying that if they failed to do so within a reasonable time that the lease be cancelled, set aside and held for naught. Following the institution of the suit and between the 1st day of February, 1936, and the 24th day of August, 1937, the defendants drilled fifteen additional wells on said lease, bringing the total number of wells drilled to fifty-two, so that the lease at this time has been drilled to a density of one well to approximately every 7.19 acrés. The last well drilled on said premises was completed on August 24th, 1937. No additional wells have been drilled on said lease since that time.

“XI. Plaintiffs allege that said property could have been drilled to a density of a well to every four acres within the time and in the manner hereinabove set forth, and that such operations would have resulted in large profits to the defendants, and at the same time would have resulted in large quantities of oil being recovered from said premises which by reason of such failure to drill and develop said property will remain imbedded in the sands beneath said tract of land and never be recovered by anyone; that in addition large quantities of oil have been permitted to be drained from said premises through wells on adjoining properties, all of which constitutes a breach of the implied covenants of the aforesaid lease, and has caused the plaintiffs an enormous damage, as is more fully hereinafter set out.

“XII. Plaintiffs further allege that if the defendants had developed said property with reasonable diligence as above set forth that they would have received and been paid in excess of what they have received as royalty provided for in said lease, the sum of $400,000, being %ths of the ⅜⅛ royalty provided for in said lease, which these plaintiffs would have received had the defendants drilled and developed said property as they were required to do under the terms of the lease contract hereinabove mentioned over and above what the plaintiffs have been paid; that the breach of said contract on the part of the defendants in failing to drill and develop said property as they were obliged to do and as is herein-above set forth is the direct and proximate cause of said damages to the plaintiffs.

“XIII. The defendants, • Fidelity Oil & Royalty Company and W. L. Goldston, are made parties defendant in order that they may be cited to appear herein so that the rights of all parties may be adjudicated, and complete relief granted by this Honorable Court.”

Attached as an exhibit to plaintiffs’ said first amended original petition was the lease involved, which, omitting all description, is as follows:

“Agreement made and entered into the 31st day of October, 1919, by and between J. J. Flewellen of Gregg County, Texas, hereinafter called Lesser.? and Gaines B. Turner, Trustee, hereinafter called lessee.
“Witnesseth: That the lessors for and in consideration of the sum of $1974.00 cash in hand paid by issuing to the said lessors the sum of $1974.00 of the stock of the Virginia Company at its par valué, the receipt of which is hereby acknowledged, have granted, bargained, and leased, and by these presents do grant, bargain, and leased unto the said lessee for the sale and only purpose of mining and drilling for oil, gas and other minerals and of laying of pipe lines, building of tanks, power stations and structures thereon, to produce, save and take care of said products in and under all that certain tract or parcel of land situated in the counties of Upshur and Gregg, State of Texas, * * *.
“It is agreed that this lease shall remain in force for a term of twenty years from this date and as long thereafter as oil and gas or either of them is found and produced from the land by the lessee or his assigns.
“In consideration of the premises, the lessee covenants and agrees to deliver to the credit of lessor, free of cost, in the pipe line to which they may connect their wells the equal one-eighth part of all oil produced and saved from the leased premises. To pay the lessors $250.00 each year in advance, for the gas from each well where gas only is found, while the- same is being used off the premises and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the same time by making their own connections with the well at their own risk and expense.
“If said lessor owns a less interest in the above d'escribcd land than the entire and undivided fee simple estate therein, then the royalties and rentals herein provided for shall be paid the lessor only in the proportion which his interest bears to the whole and undivided fee, lessee shall have the right to use, free of cost, gas, oil and water produced on said land for all operations thereon except water from wells of .lessens. When requested by lessors, lessee shall bury their pipe line below plow depth. Lessee shall pay for all damages caused by all operations to growing crops on said land. Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including .the right to draw and remove casing. If the estate of either party hereto is assigned and the privilege of assigning, in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns. Lessors hereby warrant and agree to defend the title to the lands herein described and agree that the lessee shall have the right at any time to redeem for lessors, by payment, any mortgages, taxes or other liens on the above described lands, in the event of default of payment by lessors, and be subrogated to the rights of the holder thereof.
“It is 'further agreed that in no event shall the lessee and his assigns be required to exercise his option to develop said premises in less time than twenty years unless a producing oil or gas well is brought in on ad adjoinin- or adjacent tract of land and that in that event the said lessee shall commence drilling an offset well within six months after such well on the adjoining tract has been brought in or else shall forfeit this lease as a penalty for such non development.”

Appellants’ appeal is predicated upon this proposition: “There is no express covenant in the lease which attempts to define the extent to which the property shall be drilled or developed after a well is brought in proving its productivity. Therefore, the usual covenant of reasonable .development is implied and the trial court committed fundamental error in sustaining the demurrer on that ground.” Cited as authorities to support this proposition are: Summers Oil & Gas, Per.Ed., Vol. 2, page 355, § 411; Summers Oil & Gas, Per.Ed., Vol. 2, pages 301-309, § 395; W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Thornton Oil & Gas (Willis) pp. 268-9, § 154; Merrill’s Covenants Implied'in Oil & Gas Leases, § 117, p. 279; Grubb v. McAfee, 109 Tex. 527, 531, 212 S.W. 464; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 454, 6 S.W.2d 1039, 60 A.L.R. 890; Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936; Gulf Production Co. v. Kishi et al., 129 Tex. 487, 103 S.W 2d 965; Ralph v. Magnolia Petroleum Co., Tex.Civ.App., 95 S.W.2d 222; Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61; Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576; Stanolind Oil & Gas Co. v. Barnhill, Tex.Civ.App., 107 S.W.2d 746; Cole Petroleum Co. v. United States Gas & Oil Co., 121 Tex. 59, 41 S.W.2d 414, 86 A.L.R. 719; Brewster v. Lanyon Zinc Co., 8 Cir., 140 F. 801.

The brief for appellee Stanolind Oil and Gas Company sets forth this proposition: “The subject matter of development of the Flewellen tract of land is controlled by express covenants contained in the lease of October 31, 1919, from Flewellen to Turner, thereby precluding the existence of an implied covenant.” As authorities supporting. -this proposition the appellee cites: Cowden v. Broderick & Calvert, Tex.Civ.App., 108 S.W.2d 562; Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61; Gulf Production Co. v. Kishi, 129 Tex. 487, 103 S.W.2d 965; Gulf Production Co. v. Kishi, Tex.Civ.App., 105 S.W.2d 733; Freeport Sulphur Co. v. American Sulphur Royalty Co. of Texas, 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890; Becker v. Submarine Oil Co., 55 Cal.App. 698, 204 P. 245; Stoddard v. Emery, 128 Pa. 436, 18 A. 339; Skinner v. Ajax Portland Cement Co., 109 Kan. 72, 197 P. 875; O’Neil v. Sun Oil Co., 58 Tex.Civ.App. 167, 123 S.W. 172, writ refused; Burt v. Deorsam, Tex.Civ.App., 227 S.W. 354; Greek v. Wylie, 266 Pa. 18, 109 A. 529.

If the facts premised by the appellants’ proposition be assumed that: “There is no express covenant in the lease which attempts to define the extent to which the property shall be drilled or developed after a well is brought in proving its productivity,” the authorities cited support, or strongly tend to support, the proposition asserted.

We will attempt to state same as a pure proposition of law: Where there is no express covenant in the lease which attempts to define the extent to which the property shall be drilled or developed after a well is brought in proving its productivity, the usual covenant of reasonable diligence to develop is implied. Confining the proposition to the ordinary oil and gas lease, this proposition is fairly established by the decisions of this State. See authorities above noted as cited by appellants.

If we assume the premise of the proposition of appellees that: “The subject matter of the development of the Flewel-len tract of land is controlled by express covenants contained in the lease of October 31, 1919, from Flewellen to Turner,” the proposition finds strong support m the authorities cited by appellees.

The proposition may be stated as a pure legal proposition thus: “Where an. oil and gas lease contains an express covenant as to development, there is no room for an implied covenant.” Confined to the ordinary oil and gas lease, we believe this proposition is established by the decisions of this State. See authorities noted above as cited by appellees.

It will be noted that appellants and ap-pellees each cite, in support of their respective propositions, the following cases: Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 117 A.L.R. 61; Gulf Production Co. v. Kishi, 129 Tex. 487, 103 S.W.2d 965; and Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890. Broadly and generally these three cases have this in common: in each there was recognized and vindicated the obligation of the lessee to develop in accordance with the express provision of the lease involved; in each the. principle is recognized that the lease being silent as to development, there might of necessity, by implication, be an obligation on the part of the lessee to use reasonable diligence to develop the area under lease. Thus each of the cases under the respective theories held is aptly cited by each party.

In Cowden v. Broderick & Calvert, supra, it was the obligation to develop in accordance with the discretion of the lessee rather than with reasonable diligence that was vindicated by the judgment of the Supreme Court. The opinion draws the distinction between the two classes of development.

Freeport Sulphur Co. v. American Sulphur Royalty Co., supra, held the obligation to be to operate one specific plant. There .was, by construction, implied, the duty to keep such plant in continuous operation.

Gulf Production Co. v. Kishi, supra, as to the point in question decided that a provision as to the exact number of wells to be drilled in developing governed. It was further held that the express provision as to the number of wells sanctioned only by the provision of forfeiture of the lease, precluded recovery for alleged' insufficient development under implied covenants as against the position that the provision related exclusively to development within specified period less than the entire term.

It appears, then, that the question involved in this appeal is the proper construction of the lease in question. The clause or paragraph thereof most specifically involved is the following: “It is further agreed that in no event shall the lessee and his assigns be required to exercise his option to develop said premises in less time than twenty years unless a producing oil or gas well is brought in on a<f adjoinin- or adjacent tract of land and that in that event the said lessee shall ■commence drilling of an offset well within six months after such well on the adjoining tract has been brought in or else shall forfeit this lease as a penalty for such non •development.”

In a correct construction ■ of this ■clause several factors are to be considered : (1) It must be construed in the light thrown thereon by all other provisions of the lease; (2) the facts and circumstances •surrounding the parties at the time of the making thereof and the purpose the parties •thereto had in mind. The subsequent -acts .and conducts of the parties under the lease may be taken into consideration if necessary to determine their intention at the time of making the lease. These facts have been set forth in plaintiffs’ pleading as quoted, and a copy of the vital provisions of the lease have likewise been set forth, and to rehash them here would be ■mere tautology.

It may be safely asserted that each .party to the lease had in mind his ultimate profit. This we take to be true, although lessee might not have intended to actually drill for oil personally, or the lessor to retain his royalty interest. So long as there was no apparent probability -of the existence of oil under the lease in question the $1,974 cash consideration provided in the lease was probably an adequate consideration for the right of the lessee to defer or omit exploration and •development for twenty years. It is perhaps immaterial whether the same was the ■sole consideration or an adequate consideration for this privilege of the lessee. In the event of the probable productivity of the land demonstrated by a producing well on adjoining or adjacent land, a new condition arose with which the lease dealt. In such event, the lessee must drill an offset well or forfeit his rights under the 'lease.

It is unnecessary to here determine or ■discuss whether this provision was a conditional limitation, special limitation, condition subsequent, or a mere covenant. No termination of the lease by reason of failure to drill this offset well or any other offset well is claimed. As we construe the pleadings, no damages are sought by reason of failure of appellees to drill offset ■wells, and no such failure is averred. A sort of- conditional forfeiture is sought to ‘fenforce specific performance of. the-, alleged implied covenant to develop with -reasonable diligence. ■ ¡.

The lease, it will be observed, makes exploration entirely optional with the lessee until at least a producing well is drilled on adjoining land. When this condition arose the area in question, or at least a portion thereof, became in a sense proven territory, then there accrued a sort of an 'unearned increment to both the lessor and lessee. It is true that lessee might exercise the option to forfeit the lease by failure to act; but if he did elect to act, he was not making a large investment to explore “wildcat” territory. This well-— call it an offset well — is, nevertheless, in the nature of a discovery well. If oil in a substantial quantity was produced the area under lease, or a portion thereof, thereby became proven land.

When this well on adjoining land came in as a producer, the lessee received his quid pro quo for his cash payment, that is, that in order to hold the land he has not been compelled to drill a well on territory which was at least doubtful. Lessee then elects to drill the offset or discovery well to preserve his estate and obtains a producing well. The question posed by this appeal is what legal obligations, if any, are imposed on the lessee in this situation as to further development of the area involved here. Unless it could be said that a fair construction of the specific portion of the lease under consideration was to give the lessee the option of storing the oil in question in the ground to be produced at his election, common sense and common prudence would dictate the development of the lease with reasonable diligence. The drilling of offset wells, of course, is a development to an extent. We think the drilling of offset wells rather than an offset well is fairly implied from the terms of the lease.

If we adopt the construction contended for by appellees the lessor would have a potentially valuable interest in a mineral estate, but a very small voice in the disposition thereof. It seems to us, though we have not seen it so expressed, that in a sense the lessee is a sort of trustee for the lessor. What we mean is that the relationship is somewhat analogous. The lessor must depend entirely on the lessee for the profitable working of his retained interest. This, we think, is the basis for construction of the principle that an oil lease is construed strictly as to the lessee and in favor of the lessor. 31 Tex.Jur. 613; Stephenson et al. v. Calliham, Tex.Civ.App., 289 S.W. 158.

It is true there is the inherent right to contract unwisely and improvidently so long as the agreement stays within the limits of the law. Freeport Sulphur Co. v. American Sulphur Royalty Co., supra. Covenants are implied in oil and gas leases only through necessity. Further, if the matter sought to be implied is dealt with by an express provision, an implied covenant is precluded. A covenant is implied only when it is necessary to effectuate the intention of the parties to the lease. There must be a basis for the implication in the lease itself. See Freeport Sulphur Co. v. American Sulphur Royalty Co., supra, and Gulf Production Co. v. Kishi, supra. On the other hand, a contract should not be construed so that it would be foolish, improvident and one-sided, unless its written terms preclude any other construction. Munger v. Waggoner, Tex.Civ.App., 260 S.W. 696, writ refüsed; Tennant v. Matthews et al., Tex.Civ.App., 19 S.W.2d 1115, 1116. In the course of the opinion for the Court of Civil Appeals in the case last cited Chief Justice Hickman uses this language: “That construction should never be adopted which leads to an unreasonable result, if the language implied is at all susceptible •of a construction making the provision reasonable. For parties to a contract are presumed to intend the reasonable rather than the unreasonable.”

When it is necessary to effectuate the intention of the parties manifest by the ■contract a covenant may be implied. Grubb v. McAfee, 109 Tex. 527, 531, 212 S.W. 464; W. T. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890. The Waggoner Estate case announces this proposition [118 Tex. 509, 19 S.W.2d 30]: “A court should never override by implication the intention • of parties expressed in a binding writing.” However, we believe a careful reading of the case will demonstrate that, in a proper case, a court is warranted in implying a ■ covenant necessary to effectuate the intention of the parties.

In the first part of the last clause • of the lease heretofore copied the word '“develop” is used. This provision did .away with the necessity of any drilling so long as the area was purely “wildcat.” The word “develop” as there used, we -think, includes exploration. An exploration is one of the initial steps in development. What significance has the last word of the clause, “non-development?” Suppose the words “for such non-development” had been omitted, the provision for forfeiture would not have been impaired. We believe the only real effect of the words “for such non-development” was to describe the well as constituting a part of development. The well, without being so described, was in reality also a discovery well. It, when drilled, would develop beyond any question whether oil existed on a portion of the area covered by the lease.

After the successful drilling of the first well it will be noted that appellees did proceed with the development of the lease. This development, it may be fairly inferred, involved the expenditure of vast sums of money. It might be contended that this development was in pursuance of the option given under the lease and is not to be considered as throwing any light upon what the parties intended at the time of the making of the lease. There is in substance this .allegation in • plaintiffs’ amended petition, that between October 11, 1931 and September 11, 1933, appellees completed twenty-four wells, and that from July 6, 1934 to December 7, 1934, they drilled thirteen additional wells, and then advised the plaintiffs that they considered that the lease was fully developed, but to satisfy the demands of the plaintiffs they would drill two or three more wells on the property, provided no suit was instituted by plaintiffs to compel additional drilling; that on the 1st day of February, 1936, this action was instituted demanding further development and for damages for non-development; that between the 1st day of February, 1936 and the 24th day of August, 1937, the defendants drilled fifteen additional wells on the lease. These allegations, taken as true, as we here must, if they are pertinent to the construction of the lease, tend, unexplained, to show a construction placed thereon, by the parties.

We believe, that the provisions of the lease do not preclude the implication of obligation on the part of the lessees to develop the lease with reasonable diligence. It is our further belief that the lease, construed as a whole in the, light of the surrounding facts and circumstances, warrants the implication of such 'implied covenant. Further, that, challenged alone by general demurrer,. the .allegations of plaintiffs’ petition as-.to,'damage's are sufficient to support a recovery. ■

There has been furnished since the drafting of this opinion a copy of the opinion of Judge Brown, in the case of Powell v. Danciger Oil & Refining Co., Tex.Civ.App., 134 S.W.2d 493, which we believe generally supports the ideas advanced herein.

It follows that we deem the action of the trial court in sustaining the general exceptions erroneous.

It is ordered that the cause be reversed and remanded.