author: SLATTON, Commissioner.

text:
    PEEVY et al. v. CARLILE, County Superintendent.
    No. 7730.
    Supreme Court of Texas.
    May 15, 1940.
    Geppert, Geppert & Victery, of Teague, for plaintiffs in error.
    L. W. Shepperd, of Groesbeck, and Willi-ford, Williford & Bond, of Fairfield, for defendant in error.
   SLATTON, Commissioner.

Mrs. L. E. Peevy, on the 26th day of April, 1939, made a written contract with the Pyburn Common School District No. 30 (acting through a majority of its trustees) to teach as an elementary teacher in said school for a term of seven months during the school term of 1939-1940 at a salary of $595. The contract in regular form was filed with the County School •Superintendent of Freestone county, who, on October 2, 1939, refused to approve the same. Mrs. Peevy appealed from the action of the County School Superintendent to the County Board of said county which board affirmed the action of the County School Superintendent. Mrs. Peevy, joined pro forma by her husband, brought this action in the District Court of Freestone county against the County School Superintendent to compel her to approve the contract. The district intervened and sought approval of its contract. A trial to the court resulted in a judgment requiring approval of the contract by the County School Superintendent. The trial court found all material facts in favor of Mrs. Peevy and the school district.

The County School Superintendent appealed to the Court of Civil Appeals at Waco. The Court of Civil Appeals reversed and rendered the judgment of the trial court with one justice dissenting. This Court granted writ of error. The facts are well stated in the majority and dissenting opinions of the Court of Civil Appeals and will not be restated here. A motion has been filed in this Court contending that the cause should be dismissed for the lack of an essential party, to wit, the husband of Mrs. Peevy. The contention is bottomed on the claim that this suit is one for community property belonging to Mrs. Peevy and her husband and that the husband is the real party in interest and that such error was raised by general demurrer. It is obvious that this suit is not one for the recovery of community property. It is not a suit for property at all. It is a suit to enforce a right provided by statute given to one situated as Mrs. Peevy. Her right to appeal to the county board and to bring this suit in the district court is provided by statute. She has no property right under the contract to teach school and will not have any property right thereunder until the contract is approved by the Superintendent of Public Instruction of Freestone county.

In the trial court Mrs. Peevy was joined pro forma by her husband. There was no objection in his appearance in this, form or capacity except by general demurrer. No assignment was presented to the Court of Civil Appeals, which claimed error in the action of the trial court in overruling the general demurrer on the ground that the husband of Mrs. Peevy was an essential party in interest rather than a formal party thereto. Under these facts the motion to dismiss is considered 'to be without merit; hence is overruled.

A consideration of the statutes defining the powers and duties governing the district, teacher and county school superintendent convinces us that the district, acting through its trustees, has the management and control of the school and the public school ground. It has the power to employ and contract with teachers. This authority is subject to statutory limitations. The County Superintendent’s authority is provided by statute and is also limited by the same statutes which grant the power. These statutes are cited in the opinions of the Court of Civil Appeals.

In the present suit the County Superintendent had presented to her a legal contract within the meaning of the statutes governing its execution. It bound the teacher to perform the service. The salary was within the revenues of the school district and would not create a deficiency. The teacher was qualified to teach. In a word, the contract was legal in form and substance under the law which authorized its execution. The County Superintendent refused to approve it for the reason that she considered it to be to the best interests of the school that the scholastics thereof should be sent to a nearby district for their instructions. The law does not give her the- authority to disapprove the contract for that reason. The refusal, to approve the contract for the reason stated was without -authority of law. Therefore the writ of mandamus should issue in accordance with the prayer of Mrs. Peevy and the school district, as was held by the trial court and the dissenting justice of the Court of Civil Appeals. Miller v. Smiley, Tex.Civ.App., 65 S.W.2d 417, writ refused. In the case of White v. Porter, Tex.Civ.App., 78 S.W.2d 287, 292, it is said:

“If the special- facts and circumstances in the given case give rise to, no valid reason or ground in law for his refusal, then it becomes his official duty, entirely nondiscretionary and- ministerial in character, to approve the contract, and, upon refusal, to approve the same mandamus will lie to direct its performance. Article 2693, R.S., cited by ap-pellees, does not vest in the county superintendent the unrestrained power to decline, at his will and without lawful reason, to approve a valid contract with a school teacher, when it is proper in form and substance and. duly executed by the trustees. To hold otherwise would render void the power and authority vested by article 2750, R.S., in the trustees to select from the qualified applicants the teacher of their choice, and to make the proper contract with such teacher to teach the school term.’’

We approve that statement of the law.

A careful study of the cases of Thomas v. Taylor, Tex.Civ.App., 163 S.W. 129, writ refused, and Vanlandingham v. Hill, Tex.Civ.App., 47 S.W.2d 641, convinces us that those cases do not conflict with our holdings in this and other cases cited.

The judgment rendered "by the Court of Civil Appeals is reversed and the judgment of the district court is affirmed.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: HICKMAN, Commissioner.

license: Public Domain

text:
    STATE et al. v. SELBY OIL & GAS CO. et al.
    No. 7627.
    Supreme Court of Texas.
    May 15, 1940.
    Gerald C. Mann, Atty. Gfen., James Noel, Robert E. Kepke, and H. Grady Chandler, Asst. Attys. Gen., Wm. McCraw, former Atty. Gen., of Dallas, Russell Rentfro, former Asst. Atty. Gen., of Brownsville, and Henry S. Moore, former Asst. Atty. Gen., of Houston, for the State.
    Clark & Rice and Russell V. Rogers, Jr., all of Dallas, for Richards.
    E. R. Hastings, of Tulsa, Okl., and Hart & Brown, Dan Moody, and Greenwood, Moody & Robertson, all of Austin, for defendants in error.
   HICKMAN, Commissioner.

This suit was brought by the State of. Texas against defendants in error Selby Oil & Gas Company and others in the form of a statutory action of trespass to try title. In effect it was a boundary suit to establish as vacant a strip of land 28 varas wide and 1,403 varas long running north and south between the Hitson Brown and the Francis W. Johnson surveys in Gregg County. C. C: Richards, one of the defendants who claimed a mineral lease from the State on the land, filed a cross action, in which he also claimed that the land was vacant and sought to establish, the validity of his lease. A general demurrer was sustained to the petition of the State and to the cross action of Richards, and upon their refusal to amend the case was dismissed. The trial court’s judgment was affirmed by the Court of Civil Appeals. 130 S.W.2d 423. The ground upon which the trial court sustained the general demurrer is reflected by this excerpt from its.judgment:

“The court is of the opinion that the decision and judgment of the Court of Civil Appeals for the Third' Supreme Judicial District of Texas- at Austins in which a writ of error was refused by the Supreme Court of Texas in the case of State of Texas v. Atlantic Oil Producing Company, No. 8489 on the docket of the said Court of Civil Appeals, decided October 27th, 1937, and motion for rehearing denied November 24th, 1937, which decision is reported in 110 S.W.2d 9S3, is stare decisis of the location of the southeast corner of the Hitson Brown Survey and the southwest corner of the Francis W. Johnson Survey, and finally adjudicated that -the southeast corner of the said Hitson Brown Survey and the southwest corner of the P’rancis W. Johnson Survey constitute a common corner and, therefore, the land sued for by plaintiff is not vacant un-patented land belonging to the State of Texas, all of which appears from the face of plaintiff’s first amended original petition, and by reason thereof, said petition does not state á cause of action, and the court is, therefore, of the opinion that said general demurrer should be sustained.”

The Court of Civil Appeals concluded that the judgment in the Atlantic case, supra, was res judicata as to the State and stare decisis as to Richards. But little need be written here. A careful reading of the opinion of the Court of Civil Appeals in the Atlantic case will disclose that therein the State brought suit to establish as vacant certain parcels of land on the south end-of the Francis W. John-: son survey. The field notes of said survey did not. call for the meanders of Sabine River, which bounded it on the south, but contained a number of calls by course and distance. Those calls did not correspond with the meanders of the river and an application thereof to the ground revealed that the line as called for by the field notes at places would cross the river and at other places would run some distance north of it, resulting in the leaving of a number of detached parcels of land. A map attached to the opinion of the Court of Civil Appeals in the Atlantic case, and appearing in 110 S.W.2d 953, at page 956, well illustrates what land was in controversy in that suit. The Only question at issue in that case was the question of whether the south boundary line should follow the meanders of the river or the course and distance calls of the field notes. The trial court peremptorily instructed a verdict against the State and rendered judgment thereon and the Court of Civil Appeals, in affirming that judgment, held that as a matter of law the river was the true boundary line. There were no issues of fact and nothing else was adjudicated. It is true that the description of the land sought to be recovered in that case as contained in the State’s petition called for the southeast corner of the Hitson Brown. Obviously, the State sued upon the theory that the claimed vacancy in the Francis W. Johnson survey was on the south end thereof. It assumed that the southeast corner of the Hitson Brown and the southwest corner of the Francis W. Johnson surveys were a common point, but that was not at all the issue litigated. The judgment in the Atlantic case was merely that the State take nothing. It was based upon a peremptory instruction. Had there been an issue of fact in that case the peremptory instruction was improperly given, and it would have been so held. The judgment in no sense rested upon a finding that the two surveys mentioned had a common boundary line.

The foregoing accords with the generally accepted rule stated in 34 C.J. 916, as follows: “Or, as the rule is otherwise stated in some of the decisions discussing this matter, in a second action between the same parties on a demand different from that in the first action, the judgment in the first action is an estoppel only as to the points controverted, on the determination of which the finding or verdict was rendered. And in order that this rule should be applied, it must clearly and positively appear, either from the record itself or by the aid of competent extrinsic evidence, that the precise point or question in issue in the second suit was involved and decided in the first.”

This court approved the above rule in Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526, al-‘ though in that case the plea of res ad-judícala was sustained on the record. Another Texas case supporting the above conclusion, based upon a record somewhat similar to that here, is Delaune v. Beaumont Irr. Co., 60 Tex.Civ.App. 452, 128 S.W. 174, error dismissed."

On the kindred question of stare decisis we deem it sufficient merely to cite State v. Franks, Tex.Civ.App., 113 S.W.2d 589, error refused, and Maxcy v. Norsworthy, Tex.Civ.App., 19 S.W.2d 926.

The question of whether the State has taken inconsistent positions is not before us at all. Our limited question is whether a general demurrer was properly sustained to its petition and we are well convinced that it was not. Accordingly, the judgments of the trial court and the Court of Civil Appeals will both be reversed and the cause remanded for trial on its merits.

Opinion adopted by the Supreme Court.

MOORE, C. J., disqualified and not sitting.


author: HARVEY, Commissioner.

text:
    BROWN EXPRESS, Inc., v. McCLENDON, Chief Justice, et al.
    No. 2312—7505.
    Commission of Appeals of Texas, Section A.
    May 15, 1940.
    Fuchs & Fuchs, of New Braunfels, for relator.
    Marion R. McClanahan, of San Antonio, and Schleyer & Bartram, of New Braun-fels, for respondents.
   HARVEY, Commissioner.

The relator, Brown Express, Inc. (a corporation), has presented its application for the issuance by this Court of a writ of mandamus to compel the Honorable James W. McClendon, and the other justices of the Court of Civil Appeals for the Third Supreme Judicial District, to certify to this Court for decision the conflict which occurs between the decisions .of other Courts of Civil Appeals and the ruling of said Court of Civil Appeals for the third district, in the case of Brown Express, Inc., v. Arnold et ux., 120 S.W.2d 619, 620. The nature of said case just named, and of the ruling therein of said Court of Civil Appeals, appear from the following extract from the reported opinion of said court, towit:

“Appeal is from an interlocutory decree overruling appellant’s plea of privilege to be sued in Bexar County. Appellant is a corporation domiciled in Bexar County, and engaged in operating a truck line between San Antonio, Texas, and Austin; Texas, over Stale Highway No. 2. Suit was for damages by appellees against J. L. Walker and appellant growing out of a collision between two automobiles, one driven by Ben-, no Arnold and the other by J. L.-Walker, on State Highway No. 2 near the city of New Braunfels, in Comal County, on Sunday night, December 1, 1935. It was alleged that Walker was vice-president and general manager of appellant corporation and acting in the course of his employment at the time of said collision; that same constituted a trespass within the provisions of Sub. 9 of Art. 1995, R.S. 1925, which occurred in Comal County. Only the corporation filed a plea of privilege, which was duly controverted, a hearing had thereon, and same overruled; hence this appeal.
. “In the last analysis, only one question is here presented; i. e., whether there was sufficient evidence before the court to show ‘venue facts’ authorizing the suit as to the corporation in Comal County under Sub. 9 of Art. 1995. Walker filed no plea of privilege to be sued in Bexar County, the county of his residence. As to him, ‘venue facts’ constituting a trespass in Comal County were clearly shown. We do not understand that appellees assert venue in Comal County against appellant under Sub. 23 of Art. 1995. The corporation maintained no agency there.
“It is the view of the majority of the court that when plaintiffs showed upon the hearing of the plea of privilege that a trespass within the meaning of Suh. 9 of Art. 1995, had been committed against the plaintiffs in Comal County; and that Walker, who committed it, was an employee of the corporation sued, they met the requirements of the venue statute authorizing such suit to be brought in that- county; and that the issue as to whether or not he Was at the time acting within the scope of his employment, and whether or not appellant was liable for his tort’ was a matter to be determined upon the merits, and not a ‘venue fact’ necessary to be proven upon the plea to the Venue.”

The ruling of said court, made by a majority of its members as indicated above, in respect to the “venue facts” required to be proven in order to establish venue under the provisions of Sub. 9 of Article 1995 of the Revised Statutes, is in conflict with the decisions of' other Courts of Civil Appeals which involve the same question, including, the case of John F. Camp Drilling Company v. Steele, 109 S.W.2d 1038. Because of this conflict, the application for the writ of mandamus is granted, and the honorable justices of said Court of Civil Appeals for the third district are commanded to certify to this Court for decision the question of law involved in said conflict.

Opinion adopted by the Supreme Court.


text:
    ROGERS v. TRADERS & GENERAL INS. CO.
    No. 2310—7496.
    Commission of Appeals of Texas, Section A.
    May 15, 1940.
    Houtchens & Houtchens, Ardell M. Young, and J. Harold Craik, all of Fort Worth, for appellant.
    Lightfoot, Robertson, Gano & Johnston, of Fort "Worth, and Saunders & Williams, of Dallas, for appellee.
   HICKMAN, Commissioner.

This is a Workmen’s Compensation case. The Industrial Accident Board denied the claim of plaintiff in error, J. O. Rogers, for compensation; the district court rendered judgment in his favor against defendant in error for $7,398.39 as a lump-sum settlement for total incapacity; and the Court of Civil Appeals reversed that court’s judgment and rendered judgment that he take nothing. Traders & Gen. Ins. Co. v. Rogers, 119 S.W.2d 679.

The policy of compensation insurance was issued by defendant in error to George Kojan, doing business as New York Bakery. Rogers received his injuries while repairing and replacing som£ floor scales in the dough-mixing room of the bakery. He had been working for the bakery for several months prior to receiving his injuries. It is established without controversy that when he was employed he did not have in his possession a health certificate, and that he was never examined by a physician to determine whether he was suffering from any infectious or contagious disease. The only question presented for decision is whether or not Rogers was an employee of the bakery within the purview of the definition of that term as contained in the Workmen’s Compensation Law. Art. 8309, sec. 1, R.S. 1925, reads in part as follows: “ ‘Employe’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, * *

Art. 705, Title 12 of the Penal Code, reads in part as follows: “No person, firm, corporation or common carrier, operating or conducting any hotel, cafe, restaurant, dining Gar or other public eating place, or operating any bakery or meat market, public dairy or candy factory in this State, shall work, employ or keep in their employ in or about any said place any person infected with or affected by any infectious or contagious disease, or work or employ any person to work in or about any said place who, at. the time of his employment had not in his possession a certificate from some reputable physician of the county where said person is to be employed, attesting the fact that the bearer has been examined by such physician within one week prior to the time of employment, and that such examination discloses the fact that such person ,to be employed was free from any infectious or contagious disease; or fail to institute and have made a medical examination of all their employés at intervals of time riot to exceed six months and after such examination promptly discharge from their employment in or about any said place any person found to be infected with or affected by any infectious or contagious disease. Whoever violates any provision of this article shall be fined not less than five nor more than one hundred dollars.”

As has been often stated in the opinions of our courts, the right of a claimant to recover workmen’s compensation does not rest at all upon the common law, but upon the statutes alone, which both create and measure that right. The authorities cited in the opinion of the Court of Civil Appeals announce that principle. They are: Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Employers’ Indemnity Corporation v. Woods, Tex.Com.App., 243 S.W. 1085; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556; Buchanan v. Maryland Casualty Co., 116 Tex. 201, 288 S.W. 116.

Only employees may be awarded compensation under the statutes, and by Art. 8309, supra, for one to be an employee he must have been in the service of the ⅛ sured under a contract of hire, expressed or implied. That provision of the statute was construed by this court in the case of Texas Employers’ Insurance Ass’n v. Tabor, Tex.Com.App., 283 S.W. 779, 780. The injuries for which Tabor sought compensation in that case were sustained by him on Sunday, and the Insurance Company defended upon the theory that, since the work he was doing on Sunday was made a penal offense by certain articles of our Penal Code, the contract of hire to perform such work on Sunday was in violation of such penal statutes and could not therefore be made á basis for recovery. The Court of Civil Appeals (274 S.W. 309) overruled the contention of the Insurance Company upon the ground that the breach of the Sunday law was not the efficient'or contributing cause of Tabor’s injuries. This court .refused to adopt the reasoning of the Court of Civil Appeals, but announced the proposition that, while the principle of proximate cause is of vital importance in common law negligence cases, it has no application to workmen’s compensation cases. But upon the question with which we are here concerned the court employed this clear language: •

“It is not every mutual agreement that makes a lawful contract.- The law will not enforce an agreement to do that which the same law says shall not be done. It would, therefore, be anomalous, indeed, if the law were to sanction contracts which violate the law. The law prohibiting the end will not lend its aid in promoting the means designed to carry it into effect.
“Now, the very right of defendant in error to recover as an employee of Fulwiler Motor Company depends upon his showing that he was in the service of that company under a ‘contract of hire,’ for, unless there is a ‘contract of hire,’ he is not an employee within the meaning of the Workmen’s Compensation Act. Vernon’s Texas Civil Statutes, 1918 Supplement, art. 5246—82 [Vernon’s Ann.Civ.St. art. 8309, § 1], If the agreement between the motor company and defendant in error was void, then there was no contract, and, of course, no employer or employee. In such a case it is not a question of proximate cause with respect to the injury, but, rather, it is a question of contract or no contract.”

On the theory, however, that the contract did not necessarily contemplate the performance of the work on Sunday, and that it should be so construed, the court refused to sustain the assignment of error •complaining of the refusal of the trial court to instruct a verdict for the Insurance ■Company.

That construction of the statute has not been overruled or modified by this Court. Neither has the Legislature repealed, modified or otherwise changed the language of that portion of the definition of employee above quoted. The Tabor case was cited by Judge (now Justice) Critz in Gorman v. Gause, Tex.Com.App., 56 S.W.2d 855, as supporting the conclusion, there announced, that a contract cannot control or limit the provisions of a statute. There can be no •question but that the principle announced' in the Tabor case, abov.e quoted, is the .settled law in this State.

Our inquiry is thus reduced to this: 'Was the contract of hire invalid ? It can-mot be announced as a rule applicable in .all' cases that a contract made in violation of a statute is void. Each statute must be construed with the view of ascertaining the 'legislative intent. One of the leading •cases upon that question in this jurisdiction is American National Insurance Company v. Tabor, 111 Tex. 155, 230 S.W. 397, 399. That was a suit upon a policy •of life insurance instituted by the beneficiary named therein. It was claimed •.that the insurance company discriminated in favor of the insured with respect to premiums charged for the policy. The statute imposed a penalty upon insurance companies for making or permitting any such discrimination. The violation of the act by the company was made a misdemean- or and, as an additional penalty, it was provided that the company’s authority to do business in the state and its agent’s license for one year might be forfeited. The opinion was built upon this statement made therein: “The effect of the statute on the forbidden contract depends on the legislative intent.” The court construed the entire legislative act and announced the conclusion, with which we are in complete accord, that the violation thereof by the insurance company did not operate to make the policy void. The provision of the act that the policy should be incontestible after two years negatived an intent by the legislature to make it void ab initio.

The court based its decision in that case upon still another ground. That ground was that it would not be in accord with the ends of justice or with the public policy declared by the act to permit insurance companies to issue discriminatory policies and collect and retain premiums thereon and then refuse payment after the death of the insured. In the instant case sound public policy is decidedly not on the side of the enforcement of the contract, but is on the opposite side.

It seems desirable to inquire into the result of permitting recovery in a case of this character. If Rogers was an employee of Kojan within the purview of the Workmen’s Compensation Law, then Kojan could have successfully defended common law action brought by Rogers against him for damages based upon his ordinary negligence on the ground that he had protected himself from liability by procuring this policy of insurance. Thus would Kojan bé permitted to profit by his own inexcusable violation of the law, a result which could not be justified.

Pursuing the matter still further, we find that the precise question here presented for decision was before the court in the case of Montgomery-Ward & Co. v. Lusk, Tex.Civ.App., 52 S.W.2d 1110, writ of error refused. That was a suit by Mrs. Luslc to recover for 202 hours of work in excess of the limit of time fixed by Article 1569 of the Penal Code. She had performed the work and her suit was for wages. The real question for decision in that case was this: Was there a contract of hire bringing into existence the relation of employer and employee? The statute there construed, as well as the one here under review, did not impose a penalty on the employee for its violation, but that was held to be an immaterial matter. It did impose a penalty on the employer. It was pointed out that the statute was a police regulation intended for the protection of the public health, and that that fact made it distinguishable from other statutes of a somewhat similar nature. A recovery on the contract was accordingly denied. The Supreme Court, by refusing an application for writ of error in that case, approved that holding, and by so doing decided the precise question presented in this case. Justice Greenwood, who wrote the opinion in the case of Texas Employers’ Ins. Co. v. Tabor, participated in the order refusing that writ, recognizing, as we do, a distinction between the two cases.

The principle there announced has been recognized in other jurisdictions. In an opinion by the Supreme Court of Michigan in the case of Cashin v. Pliter, 168 Mich. 386, 134 N.W. 482, 483, Ann.Cas. 1913C, 697, it is stated: “The general rule is well settled that, where statutes enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void. Pollock’s Principles of Contract, 293; Drury v. Defontain, 1 Taunt. 136; Myers v. Meinrath, 101 Mass. 366, 3 Am.Rep. 368; Lyons v. Armstrong, 6 Ver. 219; Harris v. Runnels, 12 How. 79, 13 L.Ed. 901; Gibbs v. Gas Co., 130 U.S. 396, 9 S.Ct. 553, 32 L.Ed. 979; Miller v. Ammon, 145 U.S. 421, 12 S.Ct. 884, 36 L.Ed. 759, and cases cited.”

The same rule,was announced by the Court of Appeals of Louisiana in the case of Watkins Co. v. Brown, 13 La.App. 244, 126 So. 587. In 12 Am.Jur., Contracts, sec. 163, it is stated: “It appears that all courts agree that where a statute was enacted to protect the public against fraud or imposition or' to' safeguard the public health or morals, an agreement in violation thereof is ordinarily void.”

That is a sound and wholesome principle and a strict adherence thereto will promote the public good. An important question of public policy is involved, and the Legislature has determined the policy of this-State in that regard. It could hardly be thought that the Legislature would have enacted a Workmen’s Compensation Law, not only for the benefit' of industry and employees, but for the public benefit as well, and at the same time have intended that it should be made applicable to persons whose contracts of hire were forbidden by law. More particularly'is this -true when, as here, the statute violated by the contract of hire was enacted for the protection of the public health. We cannot ascribe such an intent and purpose to the legislature.

It is accordingly directed that the judgment of the Court of Civil Appeals be affirmed.

Opinion adopted by the Supreme Court.


author: BEAUCHAMP, Judge.

text:
    SCOTT v. STATE.
    No. 21023.
    Court of Criminal Appeals of Texas.
    May 1, 1940.

      Cunningham, Lipscomb & Cole, of Bon-ham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a judgment of the County Court of Fannin County assessing a penalty of $100, as hereinafter set out.

The charge in the case contains two counts; the first alleging the possession of liquor with no stamps attached showing the payment of tax on said liquor due to the State of Texas and no evidence affixed showing the payment of same. The second count charges the possession of liquor for the purpose of' sale in a dry county.

The verdict of the jury, as found in the judgment, does not indicate on which count the jury found the appellant guilty.

There are several questions involved in this case which have been only briefly considered in presenting the appeal. We think that the case of J. M. Austin v. State, Tex.Cr.App., - S.W.2d -, decided on April 17, 1940, will be enlightening upon another trial of this case.

By Bill of Exception No. 6 complaint is made that the court rested upon the appellant an undue burden to show that he did not give permission to Ray Allen or John Ridinger to search his .automobile. This seems to be well taken and the jury should have been instructed to give the defendant the benefit of reasonable doubt.

Appellant presented his Bill of Exception No. 8, and the trial judge.attached his qualification thereto which, if effective, explained away and wholly destroys the bill. However, by Bill of Exception No. 10, it is shown that said bill was prepared and presented to the county judge and that he qualified the same without giving to the attorneys an opportunity to examine it and object thereto, and that it had been filed with the county clerk a day or two before they discovered that the qualification had been placed on it. They objected to this qualification, of Bill No. 8. and the court approves it as correct with all statements with reference to it. Under this state of facts, the qualification becomes erased, and the bill stands as if approved when presented to the trial judge. Had the court desired to insist further on his qualification, he might have prepared his own bill and filed it, after, which appellant would have had the privilege of preparing a , bystanders’ bill. .In this event both bills would have been before the court. The. result of the procedure is that we have before us appellant’s Bill of Exception No..8 as effective as if it had been originally approved by the trial judge. In this bill if is certified that the county attorney, in his closing argument, made statements of facts to the jury which were “prejudicial, highly improper, there being no evidence in the case that Charlie Jones was a negro or that the County Attorney knew any other facts that he would be authorized to testify to.” It is further certified that “said argument, which was unauthorized and prejudicial to the defendant, * * As a matter of course, the learned trial judge did not mean to place before this court a bill certifying to such facts. Otherwise he would have granted the motion for a new trial in the case, but the bill, which we must consider, contains it, «ven though it results from the fact that the qualification was erased from the bill and the trial judge failed to prepare his own bill covering the question. The State’s remedy would have been to request the court to prepare such a bill. McKee v. State, 116 Tex.Cr.R. 232, 34 S.W.2d 592; Roberts v. State, 115 Tex.Cr.R. 431, 27 S.W.2d 159, and authorities there cited.

For the errors pointed, out, the case is reversed and remanded for a new trial.

       Not released by court at date of publication.


author: KRUEGER, Judge. BEAUCHAMP, Judge.

text:
    WINTERS v. STATE.
    No. 21000.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied May 15, 1940.
    Earl Shelton and Dempsey W. Nash, both of Austin, for appellant.
    Lloyd' W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the offense of unlawfully causing and contributing to the delinquency of a female child; penalty assessed at confinement in the-county jail for ninety days.

The complaint and information are sufficient to- charge the offense. The record is before us without a statement of facts or bills of exception. All matters of procedure appear regular.

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.

Appellant in his motion for rehearing has raised a question as to the sufficiency of the jury’s verdict which reads as follows :

“We, the Jury, find the Defendant Coy Winters Guilty, Ninety days in jail (90).
“Roy C. Fritts
“Foreman of the Jury.”

In the case of Moneyhun v. State, Tex.Cr.App., 136 S.W.2d 219, the following verdict was held to be insufficient:

“No. 10311. Guilty, 90 days in jail
“Geo. T. Moore, Foreman.”

It is stated in this opinion, however, that if the intention of the jury can be arrived' at by- fair interpretation of the written findings and from such findings, then such interpretation thereof should be given. In the Moneyhun case the verdict did' not say, “We find” the defendant guilty. It only says, “Guilty”. It is there held that the court would have to supply too much to the verdict in determining that they meant to find him guilty.

In the case before us we think it is different. The jury stated that they, the jury, found the defendant guilty. As a part of this verdict it says, “90 days in jail”. It does not require any speculation to understand what the jury meant by this statement. The verdict is sufficiently intelligible to be definitely understood and will support the judgment of conviction.

It is further presented in the motion for rehearing that the complaint and information are fatally and fundamentally defective because no offense under Article 534 of the Penal Code, Vernon’s Ann.P.C. art. 534, is alleged. The reason assigned is that the information and complaint fail to state that Coy Winters was a parent, guardian, person having custody of or person responsible for the child involved. We think the statute is sufficiently broad and does cover any person who contributes to the delinquency of the child described, whether the parent, guardian or a person responsible for the child or not. Anyone whose act and conduct is such as to “in any manner cause, encourage, act in conjunction with or contribute to delinquency” is included in the statute. Delinquency is defined in Article 534 of the Penal Code and, without doubt, includes the things charged in the information in this case.

The motion for rehearing is overruled.


author: HAWKINS, Presiding Judge. BEAU CPI AMP, Judge.

text:
    GARCIA v. STATE.
    No. 20852.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Rehearing Denied May 15, 1940.
    Kennedy Smith, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was convicted of the murder with malice of Lino -Garcia, and his punishment assessed at seven years in the-penitentiary.

Fidel Garcia was the father of appellant. In order to avoid confusion the parties, will be referred to by their given names.

Fidel and Linó met at a beer garden where they with other parties were-drinking beer and engaging in friendly conversation. Fidel and Lino got into an, argument over the merits of the Garcias in-general; Lino contending that those bearing the name were like other people, some good, some bad, and that there were some-“pimps” even among the Garcias. There-was no intimation that Fidel or any members, of his family fell into the class named. Fidel resented the statement and wanted to-fight Lino, but the proprietor of the place-got between them and finally put Fidel out. Perfecto (appellant here) was not present when the argument and disturbance occurred. Aboüt thirty minutes after Fidel had been put out of the place he returned-' with Perfecto. They immediately approached Lino who was sitting at a table,- and Fidel demanded that Lino repeat what he had theretofore said. Before Lino had time to make reply Perfecto pushed Fidel aside and stabbed Lino five times while he was still sitting down. The latter made no offensive move towards either Fidel or appellant. All the wounds upon Lino were superficial save one which penetrated the cavity, striking an artery. Death resulted almost immediately. The foregoing is stated as a conclusion from the State’s testimony. A witness for the State testified that he was present at another beer garden where he and Fidel had gone after the latter had tried to fight Lino, and heard Fidel tell Perfecto that Lino had said “all the Garcias were pimps”; that Perfecto said, “Let’s go and see him”; that they did go to where the first disturbance had occurred, and that Fidel and Perfecto went inside, and the killing occurred a few seconds after they entered the house. Perfecto denied that his father had told him anything about the former trouble and testified that the reason he went into the place was because his father wanted to get another bottle of beer; that immediately upon entering the place Lino struck Fidel in the face with a beer bottle and also assaulted him (Perfecto) and that he stabbed Lino in defense of himself and his father. There is no doubt that Fidel received a blow on the nose which caused a cut and considerable blood, but no witness present save appellant claimed that Lino struck Fidel;, all others asserted that Lino did not do anything, not even rising from his seat until after the stabbing. It is apparent from the condensed statement of the evidence that the verdict is supported.

The court’s charge as originally prepared was not given to the jury, but in response to objections thereto the learned trial judge amended his instructions to meet all complaints directed to them as originally written. We discover no merit in the exceptions to the amended charge. Three special charges were requested; two were given, and the one refused was apparently incorporated in the main charge.

The record reflects that appellant objected to certain argument of the district attorney, claiming that he was misquoting the testimony and therefore drawing improper deductions therefrom. Pie presented a bill of exception complaining of the claimed improper argument. The court declined to approve same without certain suggested qualifications. Appellant declined to accept the qualifications, whereupon the court refused the bill and prepared and filed his own bill upon the subject. No bystanders’ bill is found challenging the correctness of the court’s bill, and therefrom no error appears.

The judgment is affirmed.

On Motion For Rehearing.

BEAU CPI AMP, Judge.

Appellant’s motion for rehearing in this case insists that the evidence is insufficient to support the verdict.

Reliance is had upon certain quoted testimony from state’s witness to the effect that Fidel Garcia had blood and a wounded eye while on the outside.

The facts considered might properly have been pertinent circumstances in arguing the case before the jury, but they are not conclusive facts upon which this court can rely. True, it is evidence of a physical fact, but it presents, at most, a circumstance which the jury had a right to consider and in all probability did consider, but they, nevertheless, found appellant guilty under evidence which this court thinks justified their conclusions.

We find nothing pointed out in the' motion which was not considered and we think the correct conclusion has been reached.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    SMITH v. STATE.
    No. 21054.
    Court of Criminal Appeals of Texas.
    May 8, 1940.

      Denman & Fowler, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a container to which no stamp tax showing payment of the tax due the State of Texas was affixed; the punishment, a fine of $100.

According to their version, officers went to appellant’s private residence for the purpose of looking for a man other than the appellant. As they drove up to the house they observed appellant in a back room and “saw him grab something from the table.” One of the officers ran to the back of the house just as appellant was pouring something from a pint bottle. Appellant had a quart jar of the same kind of liquid in his left hand. The containers had no stamp tax on them and there was no evidence that the tax due the State of Texas had been paid. After appellant had poured the liquid out the officers examined the containers and found a small amount of whis-ky in them.

Appellant did not testify and introduced ■no witnesses.

The officers had neither a war^ rant of arrest nor a search warrant. Appellant timely and properly objected to their testimony touching the result of the search. The objection should have been sustained. The officers did not know at the time they entered upon appellant’s premises that his possession of the liquor in question was illegal. “Probable cause” does not authorize the search of a private residence. This court has in numerous decisions stated the rule as follows: “ ‘Probable cause’ for the belief that the accused possessed intoxicating liquor for the purpose of sale did not authorize the search of the premises without a search warrant.” See Harbor v. State, 116 Tex.Cr.R. 306, 31 S.W.2d 650.

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: GRAVES, Judge.

text:
    BLAINE v. STATE.
    No. 21004.
    Court of Criminal Appeals of Texas.
    May 1, 1940.

      O. M. Street and John W. Miller, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted by a jury of unlawfully selling liquor in a dry area, and fined the sum of $750.

It appears from the statement of facts that the State relied for a conviction upon the testimony of one R. P. Boyd, an employee of the State Liquor Cqntrol. Board, who testified that on October 14, 1938, he went into the Red Cross Pharmacy about 9 o’clock in the evening, in the city of Dallas, and asked the clerk therein for some whisky. The clerk directed him to appellant, who went into the rear of this drug store to a cabinet, and, producing a key, unlocked such cabinet and finally the appellant produced a pint of “Pa Wilkins” whisky and delivered same to witness. That appellant then had witness sign witness’ name on the back of a prescription blank, and witness left.

Appellant attacks the complaint and information in a motion to quash the same, which motion was overruled. We have examined these pleadings and think they are in conformity with our previous opinions on such matters, and the motion was properly overruled.

We also think the' allegations therein show that justice precinct No. 7 of Dallas County, Texas, legally voted to prohibit the sale of intoxicating liquors therein and became a “dry area” in November 1890, and was still dry at the time of this alleged occurrence. We think the orders set forth in the statement of facts herein, as well as the information, evidence the fact that the proper procedure was followed, and that the election held thereunder resulted in the vote of 614 votes for prohibition and 69 votes against prohibition.

There is an attack made upon the proceedings of the election whereby said justice precinct No. 7 of Dallas County, Texas, was voted dry in 1890. This attack comes too late. This attack should have been made within sixty days after the taking effect of S.B.No. 31, Chapter VIII of the General Laws of the 30th Legislature, First Called Session, p. 447, which became effective ninety days after May 14, 1907, failing which the law conclusively presumes that the election as held and the results as therein declared are in all respects valid and binding on the courts. Branch’s Criminal Law, p. 375, Sec. 570; Evans v. State, 55. Tex.Cr.R. 450, 117 S.W. 167; Ex parte Thulemeyer, 56 Tex.Cr.R. 337, 119 S.W. 1146; Wilson v. State, Tex.Cr.App., 107 S.W. 818; Hardy v. State, 52 Tex.Cr.R. 420, 107 S.W. 547; Alexander v. State, 53 Tex.Cr.R. 504, 111 S.W. 145; Romero v. State, 56 Tex.Cr.R. 435, 436, 120 S.W. 859; Doyle v. State, 59 Tex.Cr.R. 60, 127 S.W. 815, 816; Jerue v. State, 57 Tex.Cr.R. 213, 123 S.W. 414; Wesley v. State, 57 Tex.Cr.R. 277, 122 S.W. 550.

Complaint is also made because the court submitted to the jury the question relative to the dry status of such justice precinct No. 7, supra. Had there been any question raised relative to any matters alleged in the information, such might have been necessary, see Branch’s Criminal Law, p. 375, but if the orders introduced in' evidence make a prima facie case and are not affirmatively attacked, the court should have charged that the local prohibitory law was in force and effect. Irish v. State, 34 Tex.Cr.R. 130, 29 S.W. 778, and many other cases. Although the trial court may have had the right to himself assume that such law was in force and effect, his submission of that fact to the jury for their determination does not evidence error.

Bill of exceptions No. 1 reflects the following occurrence:

While the State’s attorney was cross-examining the witness John Carroll, a clerk in the Red Cross Pharmacy, who had previously testified that there were only two keys to the cabinet in which the whisky was kept in such drug store, and that he had one and appellant’s brother, M. H. Blaine, a partner in the store, had the other key, he was asked by the State the following questions:

“Q. Now, you say that M. H. Blaine was the owner and operator of that store? A. Well, they were partners, I understand, Mr. D. B. and M. H.
“Q. Mr. D. B. & M. H. Blaine were partners in that store? A. Yes, sir.
“Q. And each had an equal right to the other in the management of that store, that is correct, isn’t it? A. Yes, sir.
“Q. M. H. Blaine had his hooky joint and gambling joint upstairs, didn’t he?”

Upon the making of the last statement and question appellant immediately objected, and requested the trial court to declare a mistrial and discharge the jury. This the court refused to do, but did instruct the jury in the following terms: “I instruct you to disregard the question asked by the district attorney concerning any business or hooky shop or gambling business of one M. H. Blaine anywhere else outside the premises located here; you will disregard that for any purpose and not refer to it in any manner.”

. Under ordinary circumstances we are often able to say that the prompt action of the trial court in thus withdrawing such remarks from the jury would cure any error caused by a casual remark or question such as this, if there is no probability of harm being shown to the appellant. However in this instance it is to be noted that the issue relative to a sale being made at all was closely contested, same being proven by one witness alone. Appellant presented an alibi, should same have been believed by the jury, supported by a witness who was positive in his statements as to his own as well as appellant’s presence in a town about one hundred miles away from Dallas, and who had documentary evidence by which he claimed to fix the date of such time. Again, appellant established an excellent reputation as to his truth and veracity by citizens of Dallas who had known him for many years, and who testified as to the numerous social and civic positions of prominence and service in which appellant had served. Upon appellant’s conviction, however, which the jury had a right to do, he was awarded a penalty of a fine of $750, which was but little short of the highest penalty authorized by law, and we are impressed with the idea that this severe penalty was probably brought about because of the fact that the assistant district attorney conveyed the idea to the jury that appellant’s brother and partner in the Red Cross Pharmacy was running a bookie joint and gambling house upstairs, while appellant was selling liquor downstairs.

In the case of Will Fritts v. State, 114 Tex.Cr.R. 542, 26 S.W.2d 643, the court reversed that case on account of the fol- ' lowing argument of the district attorney: “Gentlemen, it is remarkable, this Fritts family; they didn’t want to put Elbert (meaning Elbert Fritts) on this stand; they didn’t want to let you know that the whole family sold whisky or had been indicted for it.” We think this case is in point herein. The above statement in the instant case was an intimation by the assistant district attorney that both Blaine brothers were engaged in violations of the law, and were partners therein, one selling liquor unlawfully, and the other running a gambling joint, all in the same building. See Musslewhite v. State, 137 Tex.Cr.R. 590, 132 S.W.2d 858.

Under the circumstances we believe the bill evidences error; that same could not be eliminated from the jury’s mind by a proper instruction, and that same is of such a material nature that it should call for a reversal herein.

The judgment is reversed and the cause remanded.


text:
    STRICKLAND v. STATE.
    No. 21041.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Evans J. Adkins, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for the theft of one head of cattle and his punishment assessed at confinement in the penitentiary for two years.

On the 15th day of July, 1939, appellant went to a cold storage plant in the town of Brady, with the carcass of a beef which he placed on storage and sold to them a hide of the same size as the carcass. Upon inspection later, this hide proved to have the brand of J. S. Wall, the prosecuting witness. Appellant also sold the carcass of the animal to another party who paid him $29 for it.

There is found in the transcript the signed statement of the appellant to the effect that he found the animal from which the hide came, dead and swollen, in the McShan pasture adjoining that of Wall; that he took the hide from this animal and carried it to the market at about the same time that he placed the carcass of another animal in storage there. He said in said statement that he thereafter burned the carcass of the dead animal. However, as a witness in the case he told a different statement, and it is sufficient to say that there is evidence to amply support the finding of the jury.

The record is without bills of exception and places nothing further before us for consideration.

The judgment of the trial court is affirmed.


text:
    MORGAN v. STATE.
    No. 21114.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Fred H. Woodard, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Harvey M. Morgan was convicted in the District Court of Nueces County on a charge of murder upon which the jury assessed the penalty of 40 years.

On the 18th day of June, 1939, at about 2 o’clock on Sunday morning appellant was in the Causeway Gem at Corpus Christi dancing with a young lady. The dance music was furnished by a mechanical machine operated by depositing a nickel for each piece of music played. He furnished the young lady a nickel which she deposited and then refused to dance with him further. They had been dancing for some time and she claimed that she was too tired to dance longer, while, according to his story, she went to dance with another man. He protested to the proprietor of the place whose name was C. G. Squires.

Several witnesses were present who testified on the trial of the case and who heard, more or less, the things that were said. Appellant claimed that he demanded of Squires the repayment to him of the nickel which he had deposited, and that Squires cursed him and made a motion as if going to attack him. He hit Squires with his fist and knocked him to the floor. According to the testimony of the witnesses he then kicked his head and stomped him with his heels. The witnesses, including a doctor, testified to the injuries which produced immediate death. The lower front teeth had been knocked out; the left cheek bone broken, and the left eye lacerated so that it could hardly be discerned. Around it were several small lacerations. Blood was “oozing” from the nose and the left ear. The left jaw was broken.

The jury declined to take the testimony of appellant as to his self defense theory and accepted that of the State’s witnesses. It amply supported the verdict of the jury.

There is but one bill of exception in the case which complains of the court admitting in evidence for the purpose of considering the creditability of the appellant as a witness by proving on cross examination that he had been convicted for a felony in Hill County and charged with theft in Brown County. For such purpose, as limited by the court in admitting the same, this evidence was admissible. Branch’s Penal Code, 167, and the authorities there cited. This bill is not sustained.

We have carefully examined the record and find that the procedure by which appellant was indicted, arraigned and tried is regular. No question is brought to this court for review which indicates error and we find no fundamental error in the case.

The judgment of the trial court is affirmed.


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

text:
    TADLOCK v. STATE.
    No. 20811.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Granted April 3, 1940.
    Rehearing Denied May 15, 1940.

      John N. Gauntt, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was charged by indictment in Gregg County with the offense of swindling, it being alleged that he gave a check to the R. Lacy Refinery for $114.15 on The Citizens National Bank of Waco, Texas, in exchange for 1,245 gallons of gasoline at a time when he did not have sufficient funds to cover said check, all of which was known to him. The jury found him guilty and assessed his punishment at two years in the penitentiary.

Appellant presents three bills of exception approved by the court; also a bystanders’ bill and a bill prepared by the court, all of which will be given -consideration as hereinafter indicated.

A bill of exception complains of the ruling of the court in permitting the witness, A. S. Robertson, to testify to various other checks given by the defendant to the Lacy Refinery. The checks', it is also said, were introduced but the bill fails to show that these checks in any way affected the case. It is not disclosed whether they were good checks and paid promptly or not, and we are unable to determine from the bill what, if any, harm resulted to the appellant by reason of the action of the court.

By Bill of Exception No. 2 complaint is made of the action of the court in permitting Raymond Ford to identify various checks given by the defendant to the Lacy Refinery. The bill contains the same objection to the checks as that complained of in Bill of Exception No. 1, and likewise Bill No. 2 is subject to the same fatal defect as that pointed out in Bill of Exception No. 1. Because -no error is presented in the bills, both are overruled.

By the bystanders’ bill which we find in the record complaint is made that the court permitted the State to ask the defendant, over his objection, if it is not a fact that he had also given the Hurricane Oil & Refinery Company of Arp, Texas, three checks on March 6, 7, and 8, in an amount exceeding $300, to which he answered that he did not know, that he had not had his book balanced since that time, that he couldn’t tell what he had out, and he didn’t know how many checks he had given the Lacy Refinery. Complaint is further made that thereafter the three checks were presented and handed to the appellant’s attorney while he was arguing the case to the jury. The bill further states that appellant’s counsel at that time appealed to the court for the court reporter in order that he might dictate his objections and exceptions to said reporter, but that the reporter was absent and the court promised him that he could have a full bill. It is further stated that appellant was not recalled to the witness stand for the purpose of identifying the checks and that he, at no time, identified them. It is also further presented in the bill that State’s attorney said to the jury: “Gentleman, here is three more hot checks given by the defendant to the Hurricane Oil & Refinery Co., of Arp, Smith County, Texas. Gentlemen, you saw how quick defendant’s counsel dropped these checks; no wonder gentlemen, defendant’s counsel didn’t discuss these three checks; they are hot checks, gentlemen, just like all of the rest of these checks. It is just further evidence of his scheme to get all' he could on these hot checks.”

As a part of this bill, appellant has attached the affidavits of three parties saying that they were in the court room; that they are citizens of the State of Texas, and that the bill truly presents the facts as they really transpired.

This bill is fatally defective. In the first place, it is duplicitous in its complaint of the errors committed, and we are not.able to understand from a very careful consideration of it whether appellant means to complain about the question asked the witness, the introduction of the checks, or the argument of the prosecuting attorney. In the abstract, we see no relevancy in the question asked by the State’s attorney which seemed to give rise to the evidence and the argument. The answer of the appellant presents nothing that is harmful to him, and the question is not harmful per se. We have no information about the checks and are unable to determine that they are harmful. The argument of counsel might, under some circumstances, be error requiring a reversal of the case, but the court will not reverse a case upon the mere statement unless some character of harm is shown.

If we give consideration to the court’s bill, we find enough light thrown on the subject to justify consideration of the bystanders’ bill with probable error appearing. If we consider this bill, however, we must give it full effect, and the explanation of the occurrence justifies the argument. We cannot disregard the court’s bill and at the same time use it to complete the bystanders’ bill to cure the defects in it. Consequently, we overrule the appellant’s bystanders’ bill.

By Bill of Exception No. 4 complaint is made of the failure of the court to charge the jury that E. J. Mangrum, appellant’s agent, had delivered the checks in question and was an accomplice as a matter of law, because the witness testified that he knew the financial condition of appellant was bad, and that the witness, on many occasions, had to assist defendant in various ways in protecting his checks between the time the witness presented such checks to the refinery and the time that they would reach the bank on which they were drawn. The bill does not point out evidence which would make the witness Man-grum an accomplice, and require the charge requested. The fact that he knew defendant was at times in’hard financial circumstances and the fact that he had helped him to protect his checks were not sufficient to show a knowledge on the part of the witness that appellant did not have the money to cover this check at the time it was delivered. The bill of exception is overruled.

By House Bill No. 190 of the 46th Legislature, Chapter 17, Volume 1, page 246, General Laws, Vernon’s Ann.P.C. art. 567b, a new act was passed covering the subject of swindling by bad checks. Section 7 of said act, Vernon’s Ann.P.C. art. 567b note, in specific language, repeals Section 4 of Article 1546 of the Penal Code. That is the article under which the present prosecution is had. ' The question has been raised as to whether or not the repeal of that section by the new act subsequent to the commission of the offense would bar the prosecution.

The offense under consideration is alleged to have occurred in February, 1939, and was tried at the July term of court in 1939. The 46th Legislature adjourned on June 21, 1939, and said House Bill No. 190 did not become effective until 90 days after adjournment.

Article 1546, P.C., was in effect at the time of the alleged commission of the offense 'and at the time of the trial. Of course, if Art. 1546, P.C., had been repealed, and the act therein denounced was no longer an offense, this prosecution would be ended, but the 46th Legislature (House Bill No. 190), while repealing Art. 1546, P.C., also re-enacted a statute which made offenses the same acts which had theretofore been denounced as such in Art. 1546. The penalty • was also increased. Under the circumstances stated, Arts. 13, 14, 15 and 16 of the Penal Code are operative. They are construed and given effect in Ash v. State, 134 Tex.Cr.R. 208, 114 S.W.2d 889, and the cases therein cited, and also in Spangler v. State, 135 Tex.Cr.R. 36, 117 S.W.2d 63; Stansbury et al. v. State, 133 Tex.Cr.R. 411, 111 S.W.2d 717.

It is not to be understood that we are here construing or passing on the constitutionality of the Act of the 46th Legislature in question. The extent of our holding is that under Arts. 13 to 16, inclusive, of the Penal Code, said act does not affect the present prosecution.

It is therefore our conclusion that prosecutions will lie for offenses committed prior to September 21, 1939. Further than this, it is sufficient to say that the present case does not raise any question as to the constitutionality of the re-enactment above referred to as House Bill No. 190, Acts of the 46th Legislature.

No error appearing, the case is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant insists that we were in error in disposing of his bystanders’ bill of exception.

The record reveals that the trial judge declined to approve appellant’s bill, and appellant declined to accept a proposed qualification, whereupon the court prepared his own bill. Appellant then prepared and filed his bystanders’ bill.

Art. 667, C.C.P. (1925) provides that “the rules prescribed in civil suits’’ for preparing bills of exception shall be followed in criminal cases. Subdivision 9, Art. 2237, R.C.S. (1925) provides as follows : “Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as part of the record relating thereto.”

No contest of the bystanders’ bill as provided in the statute was undertaken by the State, hence it is before us for consideration under the rule heretofore announced,' which is clearly stated in 4 Tex.Jur., page 288, § 202, as follows: “The appellate court is bound by a bystanders’ bill which complies with the statute and is not contested by controverting affidavits filed in the court below, as authorized by the statute.”

Many authorities supporting the text are cited. See Hemphill v. State, 72 Tex.Cr.R. 638, 165 S.W. 462, 51 L.R.A.,N.S., 914; Marshall v. State, 76 Tex.Cr.R. 386, 175 S.W. 154; Hirschberg v. State, 108 Tex.Cr.R. 175, 299 S.W. 641.

The bill in question recites that appellant was recalled by the State to the witness stand and was asked if he had not on March 6th, 7th and 8th given three checks aggregating more than $300 to the Hurricane Oil & Refining Company of Arp, Smith County, Texas. Appellant replied that he did not think so, but that he had not had his bank book balanced and could not tell what checks were out. This inquiry was permitted over objection. . The bill further recites that while appellant’s counsel was arguing the case a member of the District Attorney’s staff interrupted appellant’s counsel and handed him three purported checks given by appellant to said Hurricane Oil & Refining Company; that appellant was not recalled to identify said checks, and that while the Assistant District Attorney was closing the argument for the State he exhibited the three checks to the jury and said: “Gentlemen, here are three more hot checks given by the defendant to the Hurricane Oil & Refinery Co., of Arp, Smith County, Texas. Gentlemen, you saw how quick defendant’s counsel dropped those checks, no wonder gentlemen, defendant’s counsel didn’t discuss these three checks, they were hot checks, gentlemen, just like all of the rest of these checks. It is just further evidence of his scheme to get all he could on hot checks.”

A further analysis of the bill leads us to believe we should not hold it duplicitous to the extent that it should not be considered. The recital that the questions about the Hurricane Oil Company checks were asked appellant over objections we think should be regarded simply as advising the court that the inquiry was not with appellant’s acquiescence, and was incorporated in the bill in order that this court could understand the circumstances and setting of the transaction complained of. There is no recital in the bill that the three checks were ever introduced in evidence although they are found in the statement of facts. There' were in evidence ten checks given by appellant to the Lacy Refining; Company from March 21st to March 27th, inclusive, one of which was the check for $114.15, the basis of.the prosecution, given on March 24th. The Hurricane Oil Company checks were given some fifteen days before the first Lacy Refining Company check was given. There does not appear from the record any connection between the series of checks given to the two oil companies. However, we are not particularly concerned in that matter in the consideration of this bystanders’ bill. We. may have overlooked it, but our attention has not been directed to any evidence to the effect that the Hurricane Oil Company checks had not been paid, nor to any evidence regarding the circumstances under which they, were given. As we understand the bill the crux of appellant’s complaint is that the-Assistant District Attorney asserted that the checks, exhibited by him to the jury were “three more hot checks” given by appellant, without any evidence supporting such assertion. That such an argument injected into the record a new fact hurtful to appellant is not open to discussion.

The principle which has long been accepted as the true guide in determining complaints of arguments is stated in Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548, 550, as follows: “We think the only safe rule to he that this court should not hold an argument to be reversible error unless'' it is in extreme cases where the language complained of is manifestly improper, harmful, and prejudicial, or where a mandatory provision of the statute is violated, or some new and harmful fact injected into the case. Stanchel v. State, 89 Tex.Cr.R. 358, 231 S.W. 120; Henderson v. State, 76 Tex.Cr.R. 66, 172 S.W. 793; Bowlin v. State, 93 Tex.Cr.R. 452, 248 S.W. 396.”

Being bound by the bystanders’ bill, in the absence of controversion, we conclude upon further consideration that same reflects error which demands a reversal of the judgment.

The motion for rehearing is granted,, the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

We are unable to agree with the contention of the state that the bystanders’ bill discussed in the original opinion should be appraised in the light of the court’s bill. As stated in the original opinion, in view of the fact that the bystanders’ bill was not controverted, we are bound by its recitals.

The state insists that the record shows that appellant’s brother was one of the bystanders who signed the bill. We have carefully examined the statement of facts in an endeavor to find sufficient evidence to warrant the conclusion that one of the signers was the brother of the appellant, and have reached the conclusion that, the evidence is too indefinite to support the contention of the state.

The motion for rehearing is overruled.

PER CURIAM.

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


author: CHRISTIAN, Judge. BEAUCHAMP, Judge. CHRISTIAN, Judge.

text:
    O’MARY v. STATE.
    No. 20774.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    On Motion for Rehearing March 27, 1940.
    Rehearing Denied May 15, 1940.

      Wayne Somerville, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The statement of facts accompanying the record can not be considered by this court for the reason that same was not filed within the time prescribed by Art. 760, C.C.P., Vernon’s Ann.C.C.P. art. 760. The appellant’s motion for new trial was overruled and notice of appeal given July 31, 1939. The statement of facts was not filed in the trial court until February 10, 1940, which was 194 days from the date on which notice of appeal was given. See Williams v. State, 133 Tex.Cr.R. 443, 112 S.W.2d 184.

In the absence of the statement of facts, we are unable to appraise appellant’s bills of exception.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Montague County for the theft of a gun alleged to be of the value of $53, and was given two years in the penitentiary.

At the time the original opinion in this case was delivered on February 21, 1940, it appeared that the statement of facts had been filed 194 days from the date on which notice of appeal was given. For that reason and because the bills of exception could not be properly appraised in the absence of the statement of facts, the case was affifmed.

A motion for rehearing has been filed from which it appears that the appellant, who was represented on his trial by an attorney appointed by the court, had timely applied for a statement of facts and believed that it was properly filed. The condition of the record was discovered, and this court, under the facts of this case, permitted a correction to be made, but this was not called to the court’s attention at the submission of the case. The statement of facts will now be considered as if filed on September 18, 1939.

As corrected, the record is perfectly clear that nothing more than a suspicion against the appellant is shown. He lived at Wichita Falls and was traveling with his brother. They stopped in the town of St. Joe. While appellant was on the street looking at some pictures in front of a picture show, his brother entered a hardware store, took a gun and attempted to escape with it. It appears that the proprietor recovered the gun but that the brother jumped in the car and fled, leaving appellant on the street. No one saw the appellant in the hardware store. It is not shown just how close he was to it. He was never seen with the gun, nor with his brother while he had it in his possession. They were arrested together in Nocona a few hours later.

For the reasons stated, the motion for rehearing is granted and the cause is reversed and remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

In the motion for rehearing the state insists that we were in error in holding the evidence insufficient to support the conviction. We have again examined the record, and remain of opinion that the evidence failed to exclude every other reasonable hypothesis except that of appellant’s guilt. We quote from Branch’s Ann.Texas P.C., Section 1877, as follows: “To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. Tollett v. State, 44 Tex. 95; Porter v. State, 1 Tex.App. [394], 399; Jones v. State, 4 Tex.App. 436; Gill v. State, 36 Tex.Cr.R. [589], 595, 38 S.W. 190; Clifton v. State, 39 Tex.Cr.R. 619, 47 S.W. 642.”

We think the testimony does no more more than to raise a suspicion that appellant participated in the commission of the offense.

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.


text:
    RILEY v. STATE.
    No. 20953.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 15, 1940.
    E. B. Lewis, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of a hog. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellent’s first and principal contention is that the evidence is insufficient to warrant and sustain his conviction. A careful review of the testimony as disclosed by the record leads us to the conclusion that his contention is well founded. It appears from the testimony adduced by the state that sometime during the latter part of July, 1939, Dave Connell missed one of his hogs which was running on the range. He described the hog which he lost as a black sow with white hair on left shoulder, some white specks about her head and hams. John Corder testified that on the 7th day of September, he loaned Dónese Riley and Acquilla Hughes a rope with which to tie one of Dave Connell’s hogs. The boys had caught the hog on the river bank approximately one-half mile from appellant’s home. They loaded the hog in a car and carried it away, telling Corder at the time that it was Connell’s hog. The appellant was not with the boys when they caught and loaded the hog. Alvie Tom Strong testified that he purchased a big spotted sow from Dónese Riley and Acquilla Hughes. The hog was in a pen or stall on appellant’s place at the time. Dónese and Acquilla helped load the hog in the witness’ truck. Appellant was not present when this transaction took place. Acquilla Hughes testified that he and Dónese caught the hog in the Sabine River bottom; that he did not know whose it was until they had caught it. Dónese held her while he (Acquilla) went after a rope. They carried her to appellant’s home where appellant assisted them in untieing her. They then sold her to Strong for $8. Acquilla also testified that appellant was not present when they sold and delivered the hog to Strong.

The foregoing is a brief statement of the salient and pertinent facts proved by the state. It will be noted that the only testimony which tends to connect the appellant at all with the hog comes from the self-confessed thief who (if appellant had any connection with the theft of the hog) was an accomplice and whose testimony is not corroborated by anyone as required by law. Even if such testimony on the part of said witness were corroborated, it would not connect appellant with the original taking of the particular hog. It, at most, would make appellant only a receiver and concealer of stolen property. In order to constitute appellant a principal, there must be some evidence showing an acting together in the commission of the offense charged. Mere knowledge that an offense has been committed, or mere presence when an offense is committed by another does not, standing alone, make one a principal offender. Arts. 65 and 66, P.C., define the term “principal” but the testimony in this case fails to bring appellant within the definitions therein set out Consequently, appellant’s contention as regards the sufficiency of the evidence must, of necessity, be sustained.

There are other questions presented by proper bills of exception, but in view of the disposition we are making of the case, we do not deem it necessary to discuss them.

Having reached the conclusion that the evidence is insufficient to sustain appellant’s conviction, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

BEAUCHAMP, Judge.

The state has filed motion in this case for rehearing and principally relies upon evidence showing that appellant was in possession of the hog that had been stolen for the purpose of corroborating the accomplice witness.

The record reveals that the accomplice witness, together with the other parties involved, caught the hog and borrowed a rope to tie it, which fact was corroborated by another state witness who says that appellant was not present. It is, therefore, apparent from the record that appellant was not present at the time and place where the hog was stolen. His subsequent possession of the hog at a different place would be evidence of the theft and corroborative of the accomplice witness had there been no testimony whatever throwing any light on the circumstances under which the hog was stolen and of the parties present.

Under the instant case, however, we think that this court has properly held that the presence of the hog in the barn of appellant some distance away from the place it was stolen does not corroborate the evidence of the accomplice witness as to what took place at the time the hog was caught, tied and taken away. Looman v. State, 37 Tex.Cr.R. 276, 39 S.W. 571, is not authority for the position taken by the state. The story there given was that the accomplice entered a house at the suggestion of appellant, stole a gun and gave it to him. He was afterwards found in possession of the gun. Had it been shown that Looman was not personally present and took no part in the theft of the gun, his subsequent possession of it would have presented facts similar to the one before us, but the holding of this court would likely have been different. Similar reasoning will dispose of Allen v. State, 97 Tex.Cr.R. 467, 262 S.W. 502. We fail also to find anything in Allen v. State, 114 Tex.Cr. R. 260, 25 S.W.2d 850, to be helpful on the subject. The particular question before us is not treated.

The state’s motion for rehearing is overruled.


text:
    BYRD v. STATE.
    No. 21021.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a container not having affixed thereto a stamp showing the payment of the tax due the State of Texas; the punishment, a fine of $100.

Operating under a search warrant, officers went to appellant’s home and found him in possession of a jug containing whisky. Before the officers could take possession of the whisky appellant poured most of it out. Appellant testified that he found the jug near his home shortly before the officers appeared; that he needed the jug and carried it home; that there was practically. nothing in it at the time he found it, although it probably “smelled of liquor.”

It is appellant’s contention that the state failed to prove that there was not affixed to the jug a stamp showing the payment of the tax due the State of Texas, and further, failed to prove that there was not affixed to said jug an affidavit showing that the whisky had been withdrawn from a container of whisky on which the taxes had been paid. ' We are unable to agree with this contention. One of the officers said: “There was no evidence showing any tax stamps on the container.” Another officer testified: “There was no stamp of any kind on the jug at the time, it was like it is now.” Upon cross-examination appellant said: “I didn’t see any revenue stamp on it (referring to the jug) ; it had no label on it.” Again, appellant testified: “As to whether or not, if it contained a half gallon of whisky, it would be unstamped whisky, I will say I don’t know if the tax was paid on it, it had no stamp on it when I picked it up * *

Appellant objected to the testimony of the sheriff to the effect that the jug in question had no stamp on it showing the payment of the tax due the State of Texas. It appears to be appellant’s contention that the state was required to introduce the jug in evidence. In short, appellant insists that the jug was the best evidence and that the testimony the witness gave was a mere conclusion. If it should be conceded that the objection was well taken — and this is not conceded — it is observed that appellant testified that the jug had neither a tax stamp nor label on it. We think the bill fails to reflect reversible error.

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:
    BROOKS v. STATE.
    No. 20988.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    G. W. Lindsey, of Jefferson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is driving an automobile upon a public highway while intoxicated. The punishment assessed is confinement in the state penitentiary for a term of one year.

The only question presented for review is the sufficiency of the evidence to sustain the conviction. Q. R. Lockett, Constable of Precinct No. 3 of Marion County, testified that he and a Mr. Davis, Constable of Precinct No. 5, were in a car on Highway No. 49, when they overtook the appellant and three companions in a car. Appellant was doing the driving. Mr. Loc-kett testified that appellant was driving from one side of the road to the other. That he tried to pass him several times but in each instance appellant swerved his car over in front of his, Lockett’s, car. That he blew his horn trying to get appellant to stop but he would not do so. That a negro woman, who was on the seat with appellant, jumped or fell out of the car, and when Lockett again attempted to pass, appellant ran into Lockett’s car and pushed it into a ditch. Appellant was arrested, carried to jail and confined. Immediately, or at least soon after being placed in jail, he was taken to a doctor’s office to be treated for a head injury inflicted upon him by Lockett. The doctor testified that he smelled the odor of whis-ky on appellant’s breath. Lockett testified that he smelled the odor of intoxicants on his breath but could not tell whether it was beer or whisky. That he did not find any whisky on his person, did not see him drink any, nor hear of him having bought or drunk any. The doctor testified that from his observation of appellant and the odor on his breath he concluded that appellant was to some extent intoxicated. Neither Mr. Davis nor either of appellant’s companions were called by the State to testify. Appellant did not testify or offer any witnesses who denied his intoxication.

This court is authorized to reverse a case when the evidence is insufficient to sustain the conviction. However, when there is sufficient competent evidence from which a jury may reasonably draw a conclusion of appellant’s guilt, this court would not be justified in setting aside their verdict. To do so, under such state of facts, would be a usurpation by this court of the functions of the jury.

From what we have said, it follows that the judgment of the trial court must be affirmed, and it is so ordered.

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.


text:
    COMMANDER v. STATE.
    No. 21019.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine of $150.

Upon searching the home of Harvey Commander officers found therein on a table some whisky glasses, a water glass, a pitcher of water, and an empty pint bottle with a few drops of whisky in it. They also found in the room two jugs with a few drops of whisky in them. In the front room they found a dresser drawer with a false bottom. An examination disclosed that the drawer contained five full half pints of whisky and two half pint bottles, which had “around one-third to one-half pint in them.” They found no other whisky in the house. Following a trail from the house, one of the officers went to a point about 200 yards away. At this point he discovered a gallon of whisky in a jug. It does not appear that appellant resided in the home of Harvey Commander, who was his brother. On the contrary, it was the testimony of appellant’s father that appellant lived with him in another house. There was testimony upon the part of the state to the effect that prior to the search appellant had been seen to get a jug from a hog pen near the home of Harvey Commander. Also there was testimony to the effect that he had been seen to make deliveries of packages to people who would come to Harvey Commander’s house in automobiles. Mrs. Harvey Commander was in her home at the time the officers instituted the search. Her husband was absent.

Testifying in his own behalf, appellant denied that he owned the whisky found by the officers. It was his version that he was merely visiting his brother’s home for the purpose of reading “the Sunday funny papers.” Appellant also denied that he had made any deliveries of whisky to parties coming to the house in automobiles. Again, he denied that he had any connection with the gallon jug of whisky found by the officers 200 yards away from Harvey Commander’s home.

It is shown in bill of exception No. 1 that one of the searching officers testified upon direct-examination by the state as follows: “I found another gallon at the place I had been informed a gallon had been brought to the house by T. Lee (referring to appellant).” Appellant objected to the statement of the witness on the ground that it was hearsay. The objection was sustained, and the court instructed the jury to disregard such testimony. We think the statement of the witness was obviously prejudicial, and that the instruction of the court was not calculated to save appellant from harm. That the testimony was hearsay is obvious. In view of the fact that the issue as to whether appellant possessed the whisky found by the officers in the home of Harvey Commander was closely contested, we would not feel warranted in holding that the hill of exception fails to reflect reversible error. The hearsay statement of the witness might have turned the scales against appellant and led the jury to the conclusion that appellant' exercised care, management and control over the whisky the officers discovered in the home of Harvey Commander.

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.


text:
    YOCHAM v. STATE.
    No. 21033.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; ' the punishment, a fine of $50 and confinement in jail for 60 days.

The testimony of the state was to the effect that on the 13th day of February, 1939, appellant drove his automobile on a public highway while he was intoxicated. Appellant was accompanied by his father at the time. Appellant testified that his father was drunk, but declared that he (appellant) had not been drinking.

Appellant was arrested in his home soon after he had been driving his car. The testimony of witnesses for the state was to the effect that appellant was drunk at the time he was arrested. Appellant admitted that he drank whisky after reaching home.

Appellant excepted to the charge of the court because of its failure to instruct the jury, in substance, that if they believed from the evidence he was in an intoxicated condition at his home at the time of his arrest “they would have to go further and find and believe from the evidence that he was under the influence of intoxicating liquor at the time and place alleged in the indictment.” One of the issues for the jury to determine was whether appellant was intoxicated at the time he drove his automobile. Witnesses for the state testified that he was in an intoxicated condition. Appellant’s testimony constituted a denial of the charge that he was drunk. We are unable to agree with appellant that under the circumstances it was incumbent upon the court to do more than require the jury to believe that, appellant was intoxicated at the time he operated his automobile. This the court did. We see nothing in the testimony of appellant presenting an affirmative defense. We think the exception was not well taken.

Bill of exception No. 1 recites that the state elicited from appellant on cross-examination that he was married but did not live with his wife. The court sustained appellant’s objection and instructed the jury to disregard the question and answer for any purpose. The circumstances that might have caused the separation of appellant and his wife were,not before the jury. They were not apprised by the question and answer that appellant was at fault. Hence we are of opinion that the statement of appellant that he was separated from his wife was not obviously prejudicial. In view of the instruction of the trial court, we are constrained to hold that the bill of exception fails to reflect reversible error.

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.


text:
    COMMANDER v. STATE.
    No. 21020.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Russell & Edwards, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a dry area for the purpose of sale; the punishment, a fine of $250.

Officers went to appellant’s home on the 14th day of October, 1939, and instituted a search for intoxicating liquor. Upon entering the house they observed four or five men in a back room standing around a table. Two of the men had whisky glasses. Upon seeing the officers one of the men poured his whisky out. There was an empty pint bottle with a few drops of whisky in it on the table. Also there were three water glasses and a pitcher of ice water on the table. Some of the officers followed a trail from the back door of appellant’s house and found that it led to the side of a vacant house not far removed from the home of the appellant. Upon making an investigation of the vacant house, the officers found a loose board in the wall. Upon removing the board they discovered seven half pints of whisky. One of the officers testified: “I saw Harvey Commander (appellant) go around there the evening before and get something * *. As to whether or not I saw Harvey Commander go up there the evening before, I will say I saw him come put of the back door of his house and go to an automobile parked at the back door and stood there a few minutes and walked up the trail around the house' and came back with his hand in his pocket and when he got to the car he took something out and handed it to the driver. It was a bottle.” The sheriff testified, in part, as follows: “I walked down the trail very plain from his (appellant’s) back door to an outdoor toilet of this same adjoining house and found several containers, bottles, jugs, and faucets that had contained whisky. It was a plain trail— padded out.”

Mrs. Lola Donohue, a witness for the state, testified that shortly prior to. the search she saw appellant go to the corner of the vacant house and get a bottle. She said: “It contained a liquid but I don’t know what it was.” Again she testified: “I saw him get a bottle from the weatherboarding of the house.”

It was appellant’s version, as shown in his testimony, that the whisky the officers found in his house had been brought there by other parties and that he had no interest in it. Again, appellant testified that he knew nothing about the whisky the officers found in the wall of the vacant house.

Bill of exception No. 1 relates to appellant’s objection to the testimony of D. W. Lowe, one of the searching officers, to the effect that he found seven half-pints of whisky, in the wall of the vacant house. It is appellant’s contention that it had not been shown that he had any connection with said whisky or any knowledge that it was at the place where the officers found it. It is unnecessary for us to determine whether the objection was well taken. It is observed that W. E. McLain, a deputy sheriff, testified, without objection on the part of appellant, as follows: “When we first got there Mr. Cook and Mr. Lowe went in the house. I didn’t go in his house. In company with others, I found seven pints of whisky in the wall of a house on the outside. We took a trail that led from the hack of his (appellant’s) back porch to the other house around the corner, the trail leads up there. Mr. Lowe noticed a plank had been removed and moved it and got seven pints of liquor there.” In view of the fact that the testimony of Mr. Mc-Lain was received in evidence without ob-jection and was substantially the same as that given by Mr. Lowe, we would not be warranted in holding that the bill of exception presents reversible error. However, we disclaim any intention of holding that the testimony of Mr. Lowe was not admissible.

The verdict of the jury was as follows: “We, the jury, find the defendant Harvey Commander guilty and assess his punishment at a fine of $250.00 Two Fifty Dollars.” Appellant contends that the verdict is too indefinite and uncertain to support the judgment o.f.the trial court. The jury were advised in the charge of the court that the minimum penalty was $100. It is our duty, in determining whether the verdict is sufficient, to seek to arrive at the meaning of the jury and to give to it a reasonable intendment. Applying this rule, we would not feel warranted in holding that the verdict does not express an intention on the part of the jury to assess the “punishment in terms of the law.” In short, we are of opinion that the verdict shows that the jury assessed the punishment at a fine of $250.

Failing to find reversible error, 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 Qrnrt.