author: TAYLOR, Commissioner.

text:
    ROSS et al. v. GREEN.
    No. 7653.
    Supreme Court of Texas.
    April 17, 1940.
    Baker, Botts, Andrews & Wharton, Palmer Hutcheson, Palmer Hutcheson, Jr., Lawler, Wood & Childress, R. Wayne Lawler, and Virgil Childress, all of Houston, for plaintiffs in error.
    Price Daniel, T. J. Hightower, and Bill Daniel, all of Liberty, for defendant in error.
   TAYLOR, Commissioner.

This is a trespass to try title suit. It was brought by W. J. Green and his sister Adelia Cessna, joined pro forma by her husband, to recover what was alleged to be that portion of the A. B. Hardin one-half league of land in Liberty County known as the Mary Conley Bend, a bend in the Trinity river containing 83.9 acres of land. Plaintiffs, who are defendants in error here, complain in their petition of two sets of defendants, the Ross heirs who claim under Champ Ross, immediately, and the Hutcheson and Blanding claimants, all of whom were defendants below. They are plaintiffs in error here. The parties will be designated as in the trial court.

Trial was before the court without a jury. Plaintiffs recovered. The trial court filed findings of fact and conclusions of law in support of the judgment, which was affirmed by the Court of Civil Appeals, 128 S.W.2d 477. Writ of error was granted upon application of W. W. Ross and the other defendants, because of the importance of the questions involved.

According to the allegations of plaintiffs the land involved, which now lies west of the present channel of the Trinity river, lay, prior to the sinking of the “Mary Conley”, a steamboat by that name, on the east side of the river.

The land is particularly described in plaintiffs’ petition by field notes as being bounded on the north for 73.8 feet by the present channel of the Trinity and on all other sides by the old channel of the river, together with that certain one-half of the old river bed adjacent thereto. The field notes of the tract are called to begin at a point on the west bank of the present channel “said point being in the middle of the old * * * channel, and being located north 73% west 1,333 feet from the southwest corner of the north ½ of the A. B. Plardin league.” The succeeding calls are “thence along and in the middle of” the old river bed, delineating a tract in the form of a horseshoe “to a point where the middle of the old river bed intersects the southwest bank of the present channel”. The call thence to the place of beginning is “along the southwest bank of the present channel * * * 738 feet.”

The theory upon which the change of location of the land from one side of the river to the other is predicated, is that in 1872 the river suddenly changed its course and cut a new channel across the mouth of the horseshoe, leaving the land in the neck of the horseshoe within the bounds of the old channel as it was when patented in May, 1831. The general theory upon which the recovery by plaintiffs is predicated is that while the course of the river changed at the mouth of the horseshoe at the time of the avulsion hereafter referred to, there had been no appreciable change in the old channel, around the neck since the land was patented.

The trial court found in support of the judgment that when the land was patented, the river, “which formed the west boundary of the A. B. Hardin one-half league,” was located as contended for by plaintiffs; and that on account of the sinking of the steamboat, Mary Conley, in the neck of the river bend in 1872 “the stream suddenly left its old bed” and “formed á new channel through which the main flow of the river has continued to the present time.” Specific finding is made that the tract in controversy' “still can be identified as the same land that was originally on the east side of the old river channel.”

Some of the trial court’s findings of fact are set out in the opinion of the Court of Civil Appeals, to which, in the interest of brevity, reference is here made. The remaining findings (omitting the field notes) read:

“A rough sketch of the location of said river, as it was in 1831 from the northwest to the southwest corner of said one-half league is hereto attached and made a part hereof. This sketch also shows how the Trinity River finally cut through the neck of said horseshoe bend known as Mary Conley bend, forming a new channel, and leaving the old channel and the land in controversy on the west side of Trinity River. This change in the course of the river occurred after the sinking of the Mary Conley Steamboat in the upper part of the bend, which, together with overflows, caused the river to cut a new channel through the neck of what is now known as Mary, Conley bend. This occurred shortly after 1872, the steamboat having been sunk shortly before 1872.

“4. The west five hundred fourteen (514) acres of the North one-half of said A. B. Hardin ½ league, which fronts on the Trinity River, and was originally bounded on the West by the Trinity River, as it flowed from the northwest corner of said A. B. Hardin ⅛ league with the meanders of said river around' the old channel now known as Mary Conley Bend, to the southwest corner of said five hundred fourteen (514) acres, said corner being on the division line of the one-half league, was conveyed by A. B. Hardin and all of the heirs of his deceased wife,, to their daughter, Jerusha Hardin, and the plaintiffs in this case, W. J. Green and Adelia Cessna, are the only heirs of Jerusha Hardin and her descendants, and are the owners of the title to said property by inheritance from Jerusha Hardin, to whom the title to the land in controversy was conveyed in said five hundred fourteen (514) acre tract. The location of said tract is shown on the attached plat.”

The trial court’s conclusions of law are as follows: “I conclude that the title to the land in controversy was originally vested in A. B. Hardin, and passed by proper conveyance and inheritance to the plaintiffs, W. J. Green and Adelia Cessna. I conclude that the action of the Trinity River in cutting through the head of the Mary Conley Bend' and abandoning its old bed, seeking a new bed and the main course of the river changing into the new channel, was an avulsion, and that the West boundary of the A. B. Hardin ½ league and the land in controversy is not changed, but still remains in the center of the old abandoned river bed; and that the action of the Trinity River in separating the land in controversy from the rest of its original tract in such a manner that the land in, controversy can still be identified, did not change the title to the property or soil so cut off from the rest of said tract, but that title continued to be vested in the-owner of the tract, before the change in-the channel. I further conclude that the plaintiffs are entitled to judgment for all of the land in controversy, their title running to the center of the old abandoned' r-iver bed, since such stream is above the: ebb and flow of tire tide.”

No contention is made but that it is the law that “where a stream, which is' a. boundary, from any cause suddenly abandons its old and seeks a new bed,. such-change of channel works no change of' boundary and that the boundary remains as. it was, in the center of. the old channel”; and that when the stream thus “separates, a considerable part of one piece of land" and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner,” just as before the avulsion. New Orleans v. United States, 10 Pet. 662, 35 U.S. 662, 9’ L.Ed. 573; State of Arkansas v. State of Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638, L.R.A. 1918D, 258; Siddall v., Hudson, Tex.Civ.App., 206 S.W. 381.

Both plaintiffs and defendants recognize that .the trial court’s judgment, and its. affirmance by the Court of Civil Appeals,. are based upon the trial court’s ultimate finding that the old river channel around the bend was located in 1831 with respect to the land sued for, as it was at the time of the avulsion.

Defendants contend, however, that the record is devoid of evidence to support the finding stated; that there is no evidence showing what the position of the river was with respect to the land in 1831, when the A. B. Hardin lea'gue was granted, or that the land is a part of that survey as alleged by plaintiffs. They point out that plaintiffs, in order to recover, must do so upon the strength of their own title, and •urge that inasmuch as they failed to make the necessary proof, the affirmance of a judgment in their favor was erroneous. It is the view of defendants, in connection with their contention as stated, that the land in controversy lay west of the river in 1831, and was then, and has always been, a part of the William Swail league, which was granted on May 12, 1931, the day after the Hardin was granted. They contend also that whatever inference, or presumption in favor of plaintiffs’ contention is created by their testimony, is destroyed by defendants.

Plaintiffs contend they adduced substantial proof of the location of the river in 1831, as well as proof of the position of the land with respect thereto at that time, and that conclusive effect cannot be given to defendants’ evidence; and that for this reason there is no ground for setting aside the judgment of the trial judge and that of the Court of Civil Appeals affirming it.

Plaintiffs’ leading witness on the issue involving the location of the river with respect to the land in 1831 when granted is surveyor Compton, who resides in Liberty county, and who, prior to the trial, had spent thirty odd years surveying in that county, was familiar with the Hardin and Swail surveys, and had had occasion to run their respective lines. He testified that he was acquainted with the league lines “on both sides of the Trinity river from their actual location on the ground,” and that the old river bounded the Hardin one-half league on the west; that the river is very crooked throughout the entire .county and in the vicinity of the land in controversy; that he had had occasion to survey along the river at certain points in that vicinity and to survey the Jerusha Green 518 acre tract in the Hardin one-half league and had surveyed that tract on the ground as a basis for its division between the heirs of W. B. Green about 1931; that he was acquainted with the land sued for known as the Mary Conley bend and had surveyed it on the ground and that he had prepared a plat “from the field notes I made of the survey of what is known as the.Mary Conley bend.” The following is a photostatic copy of the plat referred to:

He testified substantially that the river as noted on that plat indicates its present course; that from the point marked “N 18½ E 594 feet,” and following the meander line from there on through the looped lines back to the call “S 62 W,” illustrates, and is the way of defining, the water that stands there; that the portion indicated by the looped lines stands in water all the time; that the line through the center of those lines indicates the center line of the lake thus created by the standing water; that the points indicated along the line are calculated from the meanderings of the banks on either side. He states that “of course in some places it is a bluif bank on one side and a sandbar on the other, like where the river makes a bend, and you couldn’.t tell if it is the center of the river (the old channel) but those bends are figured to the best of my knowledge and ability as the center of that lake”; that the portion included in the notation above referred to has been filled from deposit of the river _after overflows; that it is sandy land with scrub trees growing on it, and that on the east extremity of the course where it is marked “south 62 west 350 feet” there is a similar area; that the bluff bank of the old river can be followed, but that the portion right next to the river is being obliterated every time there comes an overflow and that eventually it will be impossible to tell where the present river left the old channel.

The witness points out in his testimony what he designates as the northwest (on the plat) and southwest (not on the plat) corners respectively of the south ⅛ of the A. B. Hardin league, and points out also a portion of the north line of the league, stating it passes, tracing from the northwest corner, “where the extreme bend (the bend defining what is now known as the Mary Conley) of the river is and corners back in the bend.” This places the line somewhat north of "the bend. He points out also the river front of the league between the points referred to, stating that if the river ran along this old channel, “of course as you come down the river (the old channel) with its meanders you would be bound to include it (the Mary Conley bend) in the A. B. Hardin” within the bounds given in the patent to the Hardin.

Compton testified substantially that the old channel was filled up at its mouth where it leads into the present channel, and that the water cannot get out of the lake in the bend; that he was able to trace the old river bed, which “hasn’t changed at all,” that is, so far as location is concerned; that he had heard, even before he was a surveyor, the history of the bend, and that according to that history the old river ran through the neck of the horseshoe prior to the avulsion.

The witness pointed out the southwest and northwest corners of the Jerusha Green 514 acre tract, stating in this connection that the land in controversy lay “between the two west corners” of that tract; that Jeff Green, one of the plaintiffs, and William Cessna, went with him when he surveyed the land on the ground about 1931; that he had had occasion to go back on the ground since that time to establish definitely the mouths of the old channel.

The witness used in connection with his testimony a map which he had hád in his office as county surveyor of Liberty county since 1912, which had been used by him and others in determining the location of the river. It was a map made or used by the war department in connection with a government survey of the Trinity river through Liberty county in 1899, and there appears on it a notation, “old river survey in 1872 and 1873.” On that map the witness designated the land which he pointed out to be that in controversy.

Plaintiffs supplemented and corroborated the testimony of surveyor Compton with that of witnesses whose testimony will presently be summarized. It is the view of plaintiffs that the land sued for was embraced in a tract of 514 acres, which passed to Jerusha Green when her father, A. H. Hardin, the original grantee of the Hardin league, joined by all of his-surviving children, except Jerusha, conveyed the tract to her in 1871; and that the plaintiffs, W. J. Green and Mrs. Cessna, inherited the land in controversy from their father, Billy Green, who was the only child born to Jerusha and her husband, Steve Green. The supplemental testimony above referred to relates, among other things, to the uses of, and claims to, the land in the Mary Conley bend over a period of time extending back of the avulsion, and tends, in the manner reflected in the testimony, to identify it as a. part of the Jerusha Green tract.

Nev Green (not related to plaintiffs), who was born in 1863, testified in substance that he had seen the Mary Conley as it plied up and down the Trinity “lots and lots of time,” and had seen it run between the Hardin and Swail leagues; that other boats ran on the river at that time, but that the Mary Conley was the largest among them; that it went around the bend where the old river channel now is, which could still be traced; that he had fished from the old hull of the boat after it sank; that he saw it before the river completed cutting through the neck of the horseshoe, leaving an island there; that he knew “Uncle” Stephenson Green, who was the husband of Jerusha Green and the father of Billy Green; that he visited with them and knew them before the river cut through, and knew that the land was claimed by Steve Green, and later by Billy; that after the river had cut through he had an agreement with Billy Green that he was to take charge of the land for him, and did so, and used it as a pasture for cattle and some horses, and built about 250 yards of fence from the old channel to the main river; that he could trace the old river bed where the sand had filled in on each side; that the old river channel, with the standing water in it, was such that it would “turn stock”; that it was several years after the river cut through before he could use the land for pasture because of the difficulty of getting the stock across; that- he built a fence about 1884 right after the big overflow in thát year, and kept the fence up thirty odd years and rebuilt it in 1910 but did not repair it after that time; that between 1884 and 1910 he kept horses and cattle in there and kept some in there practically all of the time unless the river was too high, during which time he had to take them out; that “Uncle Billy Green claimed the land,” since it was cut off of-his tract, by the making of the new channel.

Nev Green testified in substance also that he knew Champ Ross under whom the defendants claim immediately, and that he went with Mr. Ross to look at the land he had purchased in the William Swail league shortly before he purchased it; that he looked after the land for Ross some of the time after he acquired it, and that frequently, while he was in charge, Mr. Ross stayed there with him a week’ at a time; that he heard him state on occasions that he did not own the land in the Mary Conley bend and that he had nothing to do with it; that it was Green’s. He also testified that Billy Green sold some of the timber in the bend to Flirsch Cunningham; that he (Nev Green) had never claimed .to own any of the land, but held it for the purposes stated, under Billy Green; that he told Mr. Ross he held it with the permiásion of Billy Green and showed Ross the fence that' he had built, and that Ross did not at any time, claim to him that the land in controversy was located in the Swail league; that he (Nev Green)-knew where the Swail league lines were, and that the land was not in the Swail.

The witness “Uncle Henderson” Day, a negro who has lived in the vicinity of the river in that section since the year of his birth (1855) and who worked with cattle at intervals in and around the bend for Mr. Ed Pruitt from the ■ time he was large enough to sit on a horse, testified substantially that while he knew nothing “about the surveys at all,” he did know where the Mary Conley was sunk and that what is now the Mary Conley bend, “went into” the land involved in this suit; that the river went around it and “left an island there.” That there was a wire pasture fence put up by Nev Green, which was there 25 or 30 years; that the land was known as Nev Green’s pasture and that the river formed the boundaries of this pasture; that the fence Nev Green built ran from one side of the river to the main river; that Mr. Pruitt would give orders to use the'pasture and that Nev Green was with them a great deal of the time they worked there, which was around 35 years ago; that it was the general reputation in the community that the land was claimed by Steve Green and “Uncle Billy” Green, and also Jeff Green, the plaintiff, who was his son; that during the 30 years that he went up to the Mary Conley bend with Mr. Pruitt to work with the cattle Nev Green always had cattle in the bend; that Mr. Pruitt usually had Jim Jackson go up a day or two in advance to look after the fence; that the cattle could not cross the river except at one place “because there was only one place you could go in there and you had to come out that way”; that Nev Green’s fence was up when his (Uncle Henderson’s) wife died and that had been 36 years ago; that the -last year he used the pasture was the second year after the war ended; that they used the pasture to put the cattle and horses in it then.

Jim Jackson, who was 72 years old at the time he testified, stated that he worked for Mr. Pruitt; that he knew the Mary Conley bend and had seen the steamboat Mary Conley; that he saw it in the northeast corner of the bend and that there was a big gully where it sank and at that time “we couldn’t get through”; that he never saw it after the river cut through; that about 1900 he was up there working for Mr. Pruitt; that Mr. Pruitt and the workers camped inside the Mary Conley bend “where the fence went around”; that “we went in there and they called it the Nev Green pasture”; that Mr. Pruitt sent him up there twice a year to see about the condition of the fence; that he saw them on such occasions running and catching calves and branding them in there; that the river kept the cattle in the bend and that was why they put them in there.

Roscoe Davis and Hugh Grimes were also acquainted with the land in the Mary Conley bend and gave testimony of the same character as that stated.

The above summary of the testimony of plaintiffs witnesses is not substituted for that made by the Court of Civil Appeals, but it is intended that the summary there made shall be considered in connection herewith, and reference is made to the opinion for that purpose. Particular reference is made to the closing part of the summary, which directs attention to the fact that Hugh Grimes, who, about 1933, lived on the west side of the river, and while holding under Mr. Ross on the Swail league, made no effort to take possession of the Mary Conley bend; also to the fact that Mr. Ross in April of that year, in response to a letter from Grimes with reference to timber between the old river and the present channel, wrote that he would not at that time care to enter into any controversy with respect thereto, saying that his information was “that about 1876 the channel of the river was in the place now called the old river” and that “the channel was changed by cutting across the bend” and that the land between the old river and the new channel was formerly on the east side of the river, and that he had supposed “that such a change in the river involving a piece of land of that size would not operate to change the title,” and that “the title to the land really belongs to whoever owned it before the change or as acquired by deed 'under him or inherited from him." ’ (Italics ours).

Defendants contend that the trial court’s finding that the old channel of the river was located in 1831 where it was in 1872- with respect to the land sued for, has no support in the evidence, unless proof alone of such location in 1872 is a sufficient basis for the inference or presumption of fact that the river was so located in 1831. They contend in this connection that when it is proved that a certain condition existed at a certain time the courts of this state follow the general rule that the continuance of the proven condition operates only prospectively, citing several cases, including Ralls v. Parish, Tex.Civ.App., 151 S.W. 1089; Western Union Telegraph Co. v. Hughey, 55 Tex.Civ.App. 403, 118 S.W. 1130; and Brenan v. Eubank, Tex.Civ.App., 56 S.W.2d 513.

We do not sustain this contention. The rule is not so absolute as contended for. The case last cited merely holds that there is no presumption that a bank which is closed by the department of banking for some unknown reason, was insolvent sixteen months prior to the time it was closed. The opinion in the telegraph company case contains the statement that presumptions which arise from proof of a given status “operate prospectively and not retrospectively” [55 Tex.Civ.App. 403, 118 S.W. 1131], but the status there dealt with is that of an unconscious and dying woman, a status necessarily of a briefly limited duration. The court states that the fact that this condition obtained when her husband árrived was no evidence that she was in 'the same condition fifteen hours prior to that time when, her husband arrived at her bedside.

The case first cited is more nearly in point and does not support the contention of defendants, as appears from the following excerpt from the opinion [151 S.W. 1091] : “It has been urged by appellants that from the situation of the houses the town of Emma in 1910 cannot be presumed where thus situated in 1891. This is true. The presumption will not prevail retrospectively, but the situation in 1910 was a circumstance which can be looked to for what it is worth. It does not rise to the dignity of a presumption, but it is nevertheless a fact or circumstance which may be entitled to some consideration.”

A case more nearly in point than any of those discussed is State v. Macken et al., Tex.Civ.App., 162 S.W. 1160, 1162, writ refused. The suit involved the title to a small island and a sandbar in the Colorado river in the limits of the city of Austin. The state claimed title for the reason that they were and had been islands situated in the bed of the river. Macicen and others based their claim upon the ground that the land involved was included within the bounds of the Decker grant, alleged to lie along the south bank of the river when granted in 1835. They contended that at that time the stream flowing along the south boundary of the land was not a part of the river, but a mere slough, and that when the Decker grant called to follow the bank of the river it followed the bank of what they claimed was the main river ■channel, and that therefore the grant included the land within its bounds.

The trial court found that at the earliest time (1839) the land in controversy was known to living witnesses it was separated from the main body of the grant by a slough or depression, which left the main channel just below where Congress Avenue crosses the river, and again connected with the river several hundred yards below. It is obvious that this finding involved an inference extending retrospectively at least four years.

The Court of Civil Appeals was of opinion that the trial court found that in 1835 the land bordered on the channel of the river and was therefore a part of the grant. The eminent Chief Justice (Key) who wrote the opinion, in holding that the finding was supported by the evidence, says: “It is true that no witness testified as to conditions existing earlier than May, 1839, and it is also true that the oldest map that was produced tending to show those conditions appeared to have been made in 1839. The only witness who testified that he saw the land in controversy as far back as 1839 was Mr. John Darlington, who at the time he testified was 92 years of age; and it is not probable that any other witness could have been produced whose knowledge upon the subject extended further back than his. Mr. Darlington’s testimony, together with certain maps introduced by the defendants, and the testimony given by Maj. Walton and Mr. Von Rosenberg as to conditions existing as far back as 1853, and changes that were wrought by the floods of 1867 and 1869, support the findings of fact filed as such by the trial judge; and the facts there found justify the further finding of fact, which was incorporated in the judgment, to the effect that at the time the Decker grant was made the land in controversy was no part of the river, and therefore was embraced in the Decker grant, which extended to the river. * * * We have already stated that from the facts recited in the court’s findings of fact it was permissible to infer that the same conditions existed four years prior to the time referred to in the findings.”

We are in accord with the view expressed in the foregoing excerpt, as well as with the view of the Court of Civil Appeals in the present case, that the decisions of this state recognize the general principle announced in Volume 1, Wigmore, Evidence (2d ed.) pp. 436, 437, sec. 437, that “the interval of time to which any inference will be allowable must depend upon the nature of the thing and the circumstance of the particular case”; and that the following illustration used by the author is an apt exemplification of the principle: “On landing at New York it can hardly be inferred that the steamer at the next dock has been there for a week; but it may usually be inferred that the dock has been there for some years; while the particular circumstances of appearances and the like will in the last instance affect the length of time to which the inference could be carried back.”

For the purpose of disproving that the river flowed around the Mary Conley bend in 1831 when the Hardin and Swail surveys were patented, and for the purpose of showing that the land sued for was a part of the Swail survey, rather than the Hardin, defendants introduced, in addition to the oral testimony of their witnesses, much documentary evidence. The documents include the original grant of the Hardin league, and a certified copy of the grant of the Swail, together with what is claimed to be a map of that survey, the certified copy and the map showing to have been prepared by the general land office in 1856 and recorded in Liberty county in 1902; two administrator’s deeds, one to James Morgan dated April 7, 1846, together with a plat of the field notes called for in the deed, and one to Reuben D. Palmer, executed about two years later; a certified copy of the general land office official map of Liberty county made in 1862; other early-day instruments' showing that land claimed to be the land in controversy was referred to and dealt with consistently as a part of the Swail league; a deed from A. B. Hardin and his other children to his daughter, Jerusha, in 1871, purportedly based on a survey and division of the Hardin ½ league made by the county surveyor of Liberty county in 1861, showing that the river which constituted the western boundary of the northeast corner of the Hardin survey ran at that time and place practically due north and south, the north and south lines of the tract being called for as of equal length.

Defendants, also for the purpose of disproving plaintiffs’ contentions with respect to the location of the old river channel around the bend back of 1872, direct attention to the testimony of plaintiffs’ witness, Compton, to the effect that the river, generally speaking, has changed back and forth from one location to another at different points in its course throughout its known history and that it flows in the vicinity of the land in question through a flat plain of alluvial soil from thirty to forty feet deep, and -at certain points, “now and in times past goes just about where it will,” and that the tortious channel, at points along the course of the river, had done much shifting through the years- in Liberty county. This general testimony cannot, of course, be given conclusive effect as proving a. change of course in the river at any particular point, and was, as were the maps and other evidence in the. record, given consideration by- the trial judge in making his findings of fact.

Defendants urge that the certified copy of the field notes and map made by the surveyor who originally surveyed both the Swail and Hardin Grants in 1831 “strongly suggested, "If it did not conclusively establish,” that the land sued for was not a part of’the Hardin, but a part of the. Swail grant. No field notes of the meanders of the river, however, are given in' the field note description of the league. They point to the fact that plaintiffs offered no deed or other document in which the land sued for was ever dealt with expressly as a part of the Hardin survey. They point out also that the administrator’s deed to Morgan in 1846 which contains the field notes of the south one-third of the Swail, do not call for the horseshoe bend, notwithstanding the north line of the tract apparently would have crossed both sides of the bend to reach the river; that Compton himself testified that the field notes in the deed indicate that an actual survey of a part of the league was made on the ground. They claim that the west line of the Hardin survey in 1831, as located by Compton, cannot be reconciled with the land office map of 1862, in that on the various maps which Compton used and marked in making the location the river at the northwest corner of Hardin in 1872 appears to be a substantial distance west of the southwest corner of the Hardin, whereas a survey and division of the Hardin ½ league in plaintiffs’ chain of title calls for the north and south lines to be of the same length east and west,- thus requiring the river at the northwest corner to be almost due north of where it is at the southwest corner of the north half of the survey, which is inconsistent with plaintiffs’ claim or theory that the horseshoe bend in question opens toward the northeast. In line with the contention of defendants just stated it is claimed that there is a conflict between administrator Abbott’s deed to Morgan in 1846 and his deed to Palmer in 1848. They claim that the only evidence that the land sued for was a part of the Hardin league in 1831, is that with reference to the location of the river with respect to the land in 1872.

Ordinarily, whether an inference has been overcome is a question for the trier of the facts. Of course when the evidence is of such character that only one reasonable deduction can be drawn from it the court may so declare as a matter of law.

Under the record before us, viewing the evidence in the light stated, the trial court’s findings as to the location of the river with .respect to the land in controversy, and as to whether it is a part of the Hardin survey as alleged, are based upon factual considerations. We cannot agree that the record reflects no basis in fact for the trial court’s inference that the old river channel was located in 1831 with respect to the land as it was at the time during which the short stretch (738 feet) of the new channel was being cut across the neck of the bend. The inference was warranted.

Defendants contend also that the inference, if indulged, and the prima facie case, if any, in favor of plaintiffs, are destroyed by “compelling evidence to the contrary.” While the documentary evidence offered by defendants is highly persuasive of the correctness of the position taken by them, the evidence as a whole is not such that reasonable minds could not differ as to the effect. In other words we do not accord conclusive effect to the contrary evidence,

We are in accord with the holding of the Court of Civil Appeals. Its judgment affirming that of the trial court is affirmed.

_ . . , , , , _ „ Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: KRUEGER, Judge. HAWKINS, Presiding Judge.

license: Public Domain

text:
    HANSON v. STATE.
    No. 20673.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1940.
    Rehearing Denied May 8, 1940.

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

The offense is passing a forged instrument. The punishment assessed is confinement in the state penitentiary for a term of 2 years.

■ The record shows that on the 24th day of February, 1939, appellant appeared at the store of the Wilson Grain Company in Coleman County and attempted to pass to the manager- thereof the following check:

“The first National Bank of Hubbard, “February 22, 1939.
“Pay to J. C. Roberts or order $22.50 Twenty-two and 50/100
“W. E. Sanders”
The check was endorsed as follows: “J. C. Roberts, Santa Anna.”

Mr. Wilson became suspicious, declined to accept the check and called the officers. The sheriff accosted appellant, told him who he was, and invited him to his office where he stated that he desired to speak to him. On the way, the appellant took the check in question from his pocket, undertook to swallow the same, but the sheriff knocked him down and with the aid of some other officers, obtained the check. In about 20 or 30 minutes, appellant made a voluntary confession to the county attorney, in which he admitted that his name was Oscar Hanson and that he wrote the check in Coleman, Texas and signed the name of W. E. Sanders thereto; that he did not know anyone by the name of W. E. Sanders. That he endorsed the check by writing the name of J. C. Roberts on the back thereof. On the same day and only a few hours prior to the time he attempted to pass the check in question, he passed a check, similar in every respect to the one in question, to Roscoe Brooks in Brown-wood, Texas.

On his trial, appellant took the witness stand and testified that he obtained the check from one J. C. Roberts at Fort Worth on the 23d day of February, 1939, as part payment for nine calves. That Roberts authorized him to write his name on the back of the check, because he had no pen or pencil with him with which to make the endorsement. He also testified that at the time he made the purported confession he was dizzy and did not know what he was doing. That the officers had just knocked him down and choked him. That some time after his arrest he wrote to W. E. Sanders at Hubbard, Texas, informing him of the trouble that he was in on account of the check. That Sanders replied to the letter and returned the amount of money specified in the check. He offered the letter which purported to have been written by Sanders in evidence. In his testimony relative to the sale of the calves to Roberts, and the authority to endorse the checks, he was supported by the testimony of Mrs. Susie Wilson. At the conclusion of the testimony, appellant sought to have the court instruct the jury to return a verdict of not guilty on the grounds that the evidence was insufficient. The court declined, and in this we think he was justified. There was an abundance of evidence upon which the jury could reasonably base their conclusion of his.guilt.

By bill of exception number one, appellant complains of the action of the court in overruling his first application for a continuance based on the absence of J. C. Roberts and W. E. Sanders of Hubbard ' in Hill County. He alleged in his application that he expected to prove and would prove by Sanders the sale of the calves and that he (appellant) had the authority to endorse the checks as above described. That he expected to prove by Sanders that he, Sanders, issued the checks payable to J. C. Roberts. Process was duly issued, but the sheriff of Hill County stated in his return that no such persons lived at Hubbard ; that he could find but one J. • C. Roberts, who resided at Mt. Calm in Hill County, and but one W. E. Sanders, who resided at Hillsboro, both of whom had been summoned by the State. The motion for continuance was further controverted by the state, and the sheriff also testified that he knew there was no other Sanders or Roberts in Hill County. A number of other persons from Hill County, including some from Hubbard, testified that no such person as W. E. Sanders lived at Hubbard. The sheriff testified that he even searched the tax rolls for the names of the persons in question but was. unable to find them thereon. The cashier of the bank, E. H. Brown, testified that the Sanders and Roberts called by the state were the only ones he knew of by that name living in Hill County. Both W. E.- Sanders and J. C. Roberts took the stand and testified that aside from themselves (who appeared to have no connection with the transaction whatsoever), there were no other persons in that county by the same name. While it is true that the facts'which appellant alleged he expected to prove were very material to his defense, the proof as to the existence of such persons is very doubtful to say the least. They appear to be more imaginary than real. Under these circumstances, we would not be justified in disturbing the ruling of the trial court thereon.

By bill of exception number' two, appellant complains of the admission in evidence of his purported voluntary confession, on the ground that it was not freely and voluntarily made. That it was obtained by force, duress and the like. This issue was controverted by the state’s testimony and the issue thus made was submitted to the jury by a proper charge. Consequently appellant has no just grounds for complaint. See Blake v. State, 110 Tex. Cr.R. 128, 7 S.W.2d 579.

Bills of exceptions numbers 3, 12, and 13 relate to the' action of the district attorney, who on cross-examination of the appellant confronted him with some blank checks of various banks, which appellant admitted that he had. He objected to any and all questions relative to the checks, other than the check in question, on the ground that if had no bearing on the case, would necessarily encumber the record and tend to prejudice the jury against Jiim. No objection seems to have been made, however, on the ground that these checks had been obtained without a search warrant, according to these bills as they are qualified by the court. The court further states in his qualifications that there was no evidence offered that the checks were taken without a search warrant and while appellant was under arrest. That his purpose in admitting the evidence was to show the intent of the defendant. It is our opinion that the bills as thus qualified fail to reflect reversible error. See Escue v. State, 106 Tex.Cr.R. 506, 294 S.W. 202; 18 Tex. Jur. p. 71.

By bill of exception number four, appellant complains of the testimony given by Roscoe Brooks to the effect that on the 24th. day of February, 1939, appellant came to his place of business to buy some baby chickens to be delivered to him at Blanket, Texas. That appellant gave him a check in the sum of $22.50 drawn on the First National Bank of Hubbard, Texas by W. E. Sanders payable to J. C. Roberts. That the check was not paid by the bank but returned to him. That a few days later he received a money order from Oscar Hanson covering the amount of the check. This bill of exception is qualified by the court, who states that on direct examination by the district attorney, the witness merely testified that he had a transaction with the appellant on the 24th day of February, at which time appellant told him his name was J. C. Roberts. The matter relative to the purchase of the baby chicks and the giving of the check was all brought out by appellant on cross-examination. Then on re-direct, after appellant had gone into the matter, the state offered the check in evidence and proved by the witness that when he sent it in for collection, it was not paid by the bank but returned to him. We are of the opinion that this testimony was admissible since it tended to show fraudulent intent and system. Appellant employed the same means, resorted to the same scheme, to obtain $10.50 in cash on the check from Brooks as he did in trying to pass the check in question. See for example Vol. 18 Tex. Jur. Sees. 36-38, pp. 70-74; Escue v. State, supra.

We do not deem it necessary to discuss bill of exception number five, because the court sustained appellant’s objection to the proffered testimony and instructed the jury not to consider the same for any purpose. Moreover the same testimony seems to have been gotten before the jury without objection on appellant’s part. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972, and authorities cited. Bills of exceptions numbers 6, 7, 8, 9, 10, and 11 have been carefully considered by us and are deemed to be without merit.

By bill of exception number 14 appellant complains' of the testimony" of E. H. Brown, Cashier of the First National Bank of Hubbard, Texas that he made an investigation in Hubbard to ascertain if there was any firm in said town who did business under the name of Sanders and Meyers, stating the places he went to and of whom he made inquiries. He testified that he was unable to find any such firm. The record shows.that appellant claimed that after the transaction in question, he wrote to W. E. Sanders at Hubbard and informed him- of the trouble he was in by reason of his attempt to pass the check in question. 'That he received a reply from W. E. Sanders on a letter head of “Sanders & Meyers Auto Wrecking Yard,” a firm composed of W. E. Sanders and -A. L. Meyers, and which remitted to him the amount for which the check in question was drawn. The testimony objected to was admissible as it tended to show that the letter was not genuine and bona fide, but simulated.

Bills of exceptions numbers 16 through 22 inclusive complain of certain remarks by the district attorney in his argument to the jury. We have given these bills of exceptions our most careful consideration and reached the conclusion that the arguments were reasonable and proper deductions from the testimony. We have also examined the court’s charge in the light of the objections addressed thereto and reached the conclusion that they are not subject to the objections. All other matters complained of have had' our most careful consideration and are overruled without written comment.

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

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

We inadvertently stated -in our original opinion- that the offense was “passing a forged instrument.” The charge and conviction was for “attempting to pass as true a forged instrument.”

Appellant insists that the trial court committed error in refusing a continuance sought for the witnesses Sanders and Roberts, one of whom purported to be the signer of the alleged forged check, and the other the payee. When the application for continuance was presented it was contested and the court heard evidence thereon before denying it. Much evidence during the trial had a bearing on these purported witnesses. In appellant’s confession he said: “I have been shown a check for $22.50, dated February 22, 1939, payable to J. C. Roberts, signed W-. E. Sanders, on the First National Bank of Hubbard, Texas. I wrote out this check out mysel-f in the town of Coleman, Texas, and signed the name of W. E. Sanders to the check. I do not know anybody by the name of W. E. Sanders and this was a fictitious name. I forged the name of W. E. Sanders to the check.”

If that statement is true, it is not surprising that the purported Sanders and Roberts could not be found, and that the two men who were found bearing said names knew nothing of the transaction. It is true that on the trial appellant contradicted his confession, but all the evidence both on 'the main trial and on the application for continuance was before the trial judge on the motion for new trial, and we think makes pertinently applicable that part of Sec. 6, Art. 543, C.C.P., here quoted: “ * * * The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of. the court called to pass upon the same, and shall not be 'granted as a matter of right. If an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably, true, a new trial should be granted, and the cause continued or postponed to a future day of the same term.” ■ -

In view oí aií the testimony before him, the trial court was justified 'in refusing a new trial based upon his denial of a continuance on the ground that the matters set up in the application for continuance were not probably true, and that the purported witnesses were fictitious. See authorities cited under Note 35, Art. 543, Vol. 1, Vernon's Ann.Tex.C.C.P., Sec. 306, Branch’s Ann.Tex.P.C., Grayson v. State, 91 Tex.Cr.R. 137, 236 S.W. 1110; Weaver v. State, 91 Tex.Cr.R. 637, 240 S.W. 543; Evans v. State, 91 Tex.Cr.R. 579, 240 S.W. 916.

Appellant also insists that the confession introduced in evidence against him was not Voluntarily made. When the confession was offered in evidence and objection interposed the trial court retired the jury and heard the testimony regarding the taking of said confession, some of which is included in bill of exception number • two. The court approves the bill with the statement that it does “not fairly reflect the full facts” regarding the matter and refers us to the statement of. facts and certain pages thereof as bearing- on the question of the voluntary character of the confession. We learn therefrom that the officers had been informed of appellant’s effort to pass the check alleged to have been forged and when they approached arid interrogated appellant about it he made an effort to chew up and swallow said check, whereupon the officers undertook to prevent him from destroying the check. In the tussle with him they threw him to the ground and choked him to prevent him from swallowing the check. One of the officers inserted his finger in appellant’s mouth to extract the paper, and appellant bit his finger. One, or perhaps two, of the officers slapped him— whether it was the one whose finger appellant had bitten is not' clear. The blow struck appellant on the nose caused it to bleed. We are led to believe appellant did not receive the serious injury in the tussle with the officers that he claimed upon the trial. The incident regarding the officers’ efforts to prevent appellant from destroying the check had nothing whatever to do with the confession, and was not an act of the officers done with intent or thought of securing a confession.- Appellant claifned upon the trial that he was addled 'and excited when he gave the confession, and did not realize what he was doing. We think the court not in error in admitting the confession in evidence under all the facts before him. An issue having been made regarding the matter, however, he submitted .the issue to the jury in the following instruction:

“Yóu are further instructed that you 'will not consider the statement or confession of the defendant which was introduced in evidence unless you fiind and believe from the evidence that he freely and voluntarily made and signed such statement, and that he knew at the time what he was doing, and what the instrument he was signing was. ■ - • •
“If you should find and believe from the evidence that" at the time the defendant made such statement he was nervous and excited to such an. exteht that he did not know what he was doing, pr, that,he.was laboring under any fear of violence from the officers, or because of any pressure brought to bear by the officers you will not consider same. If you have a reasonable doubt as to the facts in regard to this you will give the defendant the benefit of such doubt and not consider said statement.”

The trial court was justified in admitting the confession and in submitting the issue to the jury he followed the procedure long recognized by this court as proper, and the evidence before the, jury warranted them in considering said confession.

Appellant insists that the remarks in argument of the District Attorney ^complained of in bill of exception number twenty-one present reversible error. The language complained of was as follows: “This defendant lied at the Wilson Grain Company, and he lied again when he was at Brownwood to Roscoe Brooks.” The statement presumably referred to the incident at the Wilson Grain Company where appellant told Mr. Williams that appellant’s name was “J. C. Robert” — the name of the payee in the check — and that he' lived at Santa Anna, and to the incident at Brown-wood where he told Mr. Brooks that -his (appellant’s) name was “J. C. Robert,” and that his address was Blanket, Texas. Appellant cites us to Stroehmer v. State, 100 Tex.Cr.R. - 90, 272 S.W. 163; Nichols v. State, 106 Tex.Cr.R. 108, 290 S.W. 1093; Roberts v. State, 107 Tex.Cr.R. 139, 295 S.W. 609, as supporting complaint of the argument.- The two cases first mentioned are so entirely different on the facts as to he without force as a precedent. In the Roberts case the language complained of related'to a claimed conversation between accused in that case and the private prosecutor whose statement was not predicated on the evidence, and a conclusion therefrom, but was an expression based on his conversation with accused. Such is not the case here. The jury knew that the District Attorney had no personal knowledge regarding the conversation appellant had either with Brooks or at the Wilson Grain Company, hence also knew that the language complained of was the attorney’s conclusion from the evidence in the case. Franklin v. State, 104 Tex.Cr.R. 240, 283 S.W. 802 is directly in point.

We think it not necessary to discuss other matters urged by appellant.

The motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    BLOODWORTH v. STATE.
    No. 21032.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    L. G. Mathews, Kenneth Bain, and Winfred Newsome, all of Floydada, for .appellant.
    John A. Hamilton, Dist. Atty., of Matador, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is making a false statement as to the amount of motor fuel used with a view of obtaining a refund of the tax upon motor fuel. The punishment assessed is confinement in the county jail for sixty days and a fine of $750.

At the very threshold of this case, we are confronted with the sufficiency of the indictment and the 'court’s action in overruling a motion to quash the same. The indictment, omitting the formal parts, reads in substance as follows: “That on or about the 7th day of May, A. D., 1938, and anterior to the presentment of this Indictment, in the County of Floyd and State of Texas, E. B. Bloodworth did then and there unlawfully and knowingly and willfully and fraudulently make false statements in a claim for refund of motor fuel Taxes, to be,filed with the Comptroller of Public Accounts of the State of Texas, George H. Sheppard, which . claim was made upon a form prescribed by said Comptroller. Said claim for refund of motor fuel taxes which was so made, in writing, by the said E. B. Bloodworth with the intention then and there of filing the same with the said Comptroller is to the tenor following:” (Then follows a photostatic copy of the statement.)

It, will be noted that it is not charged that the claim was presented to or filed with the Comptroller of Public Accounts of the State of Texas, but merely that it was made with the intention of filing the same. It is quite obvious that even though a false claim is made out, but not presented to or filed for a refund of the tax, this would not constitute an offense under article 141a: — 1, Vernon’s Ann. P.C. The object and purpose of the law was to prevent persons from making false claims, thereby deceiving the Comptroller and induce him to remit the claimed tax when the claimant was not entitled to refund under the law. As long as the claimant merely entertained the intention of presenting and filing the same with the Comptroller but not doing so, it would not, in our opinion, constitute an offense under this article of the statute. The accused must do something more than make out a false claim. He must also present it or file it with the legally constituted authority for allowance and approval.

The very question here presented was discussed by us to some extent in the case of Lightfoot v. State, 128 Tex.Cr.R. 281, 80 S.W.2d 984, and we see no need to further elaborate thereon. A mere reference to the decision in that case is deemed sufficient.

Having reached the conclusion that the motion to quash should have been sustained, it is therefore ordered that the judgment of the trial court be reversed and the prosecution dismissed.

PER CURIAM.

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


author: GRAVES, Judge. KRUEGER, Judge.'

text:
    JOHNSON v. STATE.
    No. 20900.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied May 15, 1940.
    Vernis Fulmer and Russell & Edwards, all of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the murder with malice of Eugene Eddings, and by the jury sentenced to serve twelve years in the penitentiary.

The facts show that on the night of the fatal difficulty appellant, his brother Otis Johnson and the deceased, among others, attended a dance at the residence of a Mr. Rodgers. That sometime during the dance appellant’s brother Otis and the deceased engaged in an argument, the details of which are not clearly shown by the testimony. This argument culminated in a fist fight between Otis Johnson and the deceased, in which fight appellant’s brother Otis seemed to get the best of it, finally getting the deceased down with Otis Johnson on top of him, beating him. Finally the deceased got out from under Otis Johnson and started away rapidly, at which time appellant appeared on the scene with a knife in his hand, — some of the witnesses called it a jack knife with a blade some three or four inches long, — and appellant inquired: “Where did the s-of a b-go?” Appellant then went down the road in the direction of the deceased, and struck the deceased, there being nine knife wounds on .the deceased’s body. Appellant then came back towards the house with his knife bloody, and made the statement that “if the man is hurt very bad I guess I did ⅛” From these nine knife wounds, some very serious and large, the deceased died in a very short time; before he could be brought 'to a doctor.

Bill of exceptions No. 1 relates to an objection to Sheriff Cook testifying to the wounds on the body of the deceased, and as to the apparent depth of the same, and as to what looked like the point of entry into the body and the direction of the cut. It is true that the witness did testify that it looked like the knife entered at a certain point and was jerked back, but he also said in such statement: “In other words, the cut was shallower as it came back towards the back.” We think this was merely a description of the wounds in a manner of a shorthand rendition of facts in describing these wounds. That appellant made these wounds his own witnesses showed, and the sheriff was merely trying to show what kind of wounds they were. It does not take an expert to tell what a wound looks like from the outside. Other witnesses testified that they could put four fingers in some of the cuts on the deceased’s body. We do not think such testimony 'came within the realm of expert testimony.

Bill of exceptions No. 2 complains of the introduction in evidence of certain articles taken from the deceased’s body after death, which consisted of a chauffeur’s button, and his shirt and pair of trousers. These articles were covered with blood, and were objected to as prejudicial and inflammatory, there being no question as to the nature of the wounds nor identification. The careful trial judge qualified this bill by the statement that such articles were not introduced until after the appellant had introduced in evidence a bloody knife taken from the trousers pocket of the deceased after his death. The bloody knife was introduced in order to corroborate the statement of appellant’s wife Myrtle, who testified that she saw the deceased “make a jerk for his knife.” The knife of appellant was also produced, and it was covered with blood. The state’s theory was that the knife which was in deceased’s pocket received its blood from the clothes of deceased, which were saturated with deceased’s blood. It is worthy of note also that no wounds of any kind were shown by the testimony 'to have been on ■the body of either appellant or his brother Otis. .We see no error reflected in this bill, nor in bill No. 3, which is based upon the statement of a witness that the deceased person’s clothing were saturated with blood.

Bill of exceptions No. 4 is based upon the following occurrence:

“Fulmer (Attorney for defendant) — At this time we wish to exhibit the defendant here to the jury so they can see his eyes. We exhibit his eyes to the jury with his glasses removed.
“Musselwhite (Attorney for the State) —We object to that unless he is going to testify.
“Fulmer — -We object to them suggesting anything like that. Go back and set down, Mr. Johnson.
“Musselwhite — We would like to have the privilege of cross examining the witness at this time, and ask him to take the witness stand and testify; he has been tendered as a witness.
“Fulmer — We object to such remarks as that by counsel in the presence and hearing of the jury, because it is highly inflammatory and prejudicial to the rights of the defendant, under the Constitution and laws of the land, and we ask the jury be instructed not to consider such request, either directly or indirectly.
“Musselwhite — We insist upon our right to cross examine the witness.
“Court — The objection is overruled.
“Musselwhite — We are not objecting; we are insisting on our right to cross examine the witness.
“Court — If you want to examine him physically — .
“Fulmer — We do not object to him ex7 amining him physically.
“Musselwhite — We take the position that he has been tendered as a witness and we have the right to examine him.”

It will be noted from the above that the only objection leveled at this occurrence is that the remarks by State’s counsel were highly inflammatory and prejudicial to the rights of the defendant under the Constitution and laws of the land.

We note from a reading of the evidence offered that appellant attempted to present his defense through his wife and to prove by her that he was being attacked by the deceased at the time he killed him, and that the wife said: “Watch him, Slim (appellant), he has a knife.” It is true that the State offered testimony to the effect that her statement was, “Somebody catch Slim, he has his knife open,” the wife at that time having gone with appellant into the yard where Otis and the deceased were fighting. The defense offered through the wife seems to be that appellant “was blind in one eye and could see but little out of the other one,” and she was warning him relative to what the deceased’s actions were at the time or just before the fatal difficulty. Such a defense would undoubtedly be assisted by a proof of appellant’s near blind condition, and for the purpose of demonstrating such condition his eyes were offered before the jury as an exhibit and as evidence to be seen through the jury’s own eyes relative to his near blindness. This is what the writers on evidence call auto-optic evidence. Mr. Webster, in defining evidence, gives a quotation from Greenleaf as follows: It is “that which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it.”

The only objection that could be leveled at the statement of the State’s attorney when he insisted upon his right to cross-examine the appellant, so it seems to us, — and the one appellant’s attorney intended, — was that such was an allusion to the defendant’s failure to testify. We do note, however, that the trial had not been concluded at such time, and it could not be known whether the defendant intended to take the witness stand and testify or not. Of course the State did not have the power to compel the defendant to testify, nor should it have called him to the stand, but when the appellant’s attorney offered him as an exhibit before the jury, and attempted to, and did, cause the jury to see with their own eyes appellant’s defective eyesight, we think the request of the State’s attorney to be allowed to cross-examine him relative to his proffered evidence was indicative of his belief that he thought the same did not infringe upon the rule above referred to. It will be noted, however, that the trial court did not allow any cross-examination upon the part of the State. We quote from Bosley v. State, 69 Tex.Cr.R. 100, 153 S.W. 878, 880: “While Edwin Booth was testifying in behalf of defendant, the defendant attempted to prove by him a self-serving declaration made by defendant to this witness after his arrest State’s counsel objected, and in stating his objection said it was hearsay and self-serving, and, if they wanted to prove that fact, let them place defendant on the stand. Defendant objected to the latter part of the remark of counsel for the state, 'which objection was sustained by the court. This was during the trial of the case, and at this time it could not have been known whether or not defendant would testify in the case, but appellant now contends that this incidental remark of the district attorney was a reference to defendant’s failure to testify, and for which cause this case should be reversed. Appellant was seeking to elicit from the witness what the defendant had said in his own behalf on a certain occasion, and if this objection made by counsel for the state should be held to be a reference to defendant’s failure to testify, incidentally made, this court has held in Combs v. State, 55 Tex.Cr.R. [334] 338, 116 S.W. [584], 586, ‘that any bare allusion by the prosecuting attorney to the failure of the defendant to testify would not operate a reversal of the case.’ See, also, Cabrera v. State, 56 Tex.Cr.R. [141], 155, 118 S.W. 1054, Johnson v. State, 53 Tex.Cr.R. [339], 341, 109 S.W. 936, Smith v. State, 52 Tex.Cr.R. 344, 351, 106 S.W. 1161, 15 Ann.Cas. 357, and Am. & Eng. Ency. of Prac. [Vol. 5], p. 339, where a long list of authorities will be found from this and other states so holding.”

In the case of Martin Gatlin v. State, 72 Tex.Cr.R. 516, 163 S.W. 428, 429, this court said: “When the witness asked him [the district attorney] if he would let him tell what Martin [the appellant] had said, the district attorney replied,.‘No, Martin is here and he can tell himself; it would be-hearsay/ The fact that Martin was there was known to every juryman; he had to be there during the trial. That furnished the jury no information, and we think every intelligent man now knows that a person on trial can testify if he so desires. At the time this remark was made, the district attorney could not and did not know whether or not Martin Gatlin (defendant) would testify. It was an incident of the trial, and not intended, and could not be construed by the jury as criticising or commenting upon the failure of the defendant to testify. . .

“It is true that the statute, article 790, provides that the failure of a defendant to testify shall not be alluded to nor commented on by counsel, but can this be said to be a comment on his failure to testify. Of course, it is better that such remarks should not be made; but where they are incidentally made, as in this instance, does this present ground for reversal, when the court subsequently instructs them that they must not take his failure to testify as a circumstance against him, there being no contention that.the jury did consider the matter, or it was ever thereafter even remotely referred .to, when it subsequently developed that defendant did not intend to testify in the case? This court has frequently stated the rule to be that a reversal should- not be had for the mere incidental mention of appellant’s .failure to testify, but that, before a new trial should be granted, it must reasonably appear that the language used or reference must be such that it might probably have prejudiced the defendant’s cause. Johnson v. State, 53 Tex.Cr.R. 339, 109 S.W. 936; Smith v. State, 52 Tex.Cr.R. 344, 106 S.W. 1161, 15 Ann.Cas. 357.”

To the same effect is this court’s holding in'the late case of Connors v. State, 111 S. W.2d 716.

We are of the opinion that no error is shown herein and the judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.'

Appellant,- in his motion for rehearing, reiterates the same legal propositions which he urged in the original submission for a reversal of the judgment. These have all been fully discussed by us in our original opinion. However, we have again reviewed the alleged errors with much care but see no reason for receding from our original position.

Appellant vigorously asserts that w;e erred in disposing of his bill of exception No. 1 in which he complains of the description of the wounds as related by the sheriff. The sheriff merely described the location of the wounds on the body of the deceased and the length and depth thereof. This he could do inasmuch as he had observed them. He certainly could tell whether the wounds were deep or shallow. He did not undertake to testify as to the relative position of the combatants from the location of the wounds. Consequently, the facts of this case do not bring it within the rule announced by this court in the case of Pearson v. State, 56 Tex.Cr.R. 607, 120 S.W. 1004, and Maroney v. State, 115 Tex.Cr.R. 298, 29 S.W.2d 772.

We do not deem it necéssary to again discuss the other claimed errors, as it would serve no useful purpose. They were, in our opinion, correctly -disposed of in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. BEAUCHAMP, Judge.

text:
    BURNS v. STATE.
    No. 20846.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Rehearing Denied April 17, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

It was charged by complaint and information that on April 1, 1939 in Brown County, Texas, appellant sold whisky to J. M. Rich. By proper averments it was alleged that Brown County was dry territory. It was also alleged that appellant had been convicted of an offense of like character on the 20th day of July, 1937. Upon conviction appellant’s punishment was assessed at a fine of $500.

There is incorporated in the transcript what is denominated a statement of facts. It is not approved by the trial judge and is not shown to have ever been filed in the trial court. It is not subject to consideration.

A number of bills of exception are found in the record. As qualified, no error is manifest. Some cannot be appraised in the absence of the facts.

The judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a motion for rehearing and seems to take the view that he has been deprived of a statement of facts and is entitled, under the authorities, to have his case reversed. There is found within the papers a statement of facts which does not show to have been filed in the case and was not approved by the judge. Counsel may be correct as a matter of fact but there is nothing in the record to bring that to the attention of this court. It cannot be done by the mere statement of counsel in his brief nor in his motion for rehearing.

We find nothing before us for consideration, and accordingly, the motion for rehearing is overruled.


author: GRAVES, Judge. ,,. CHRISTIAN, Judge.

text:
    RINGER et al. v. STATE.
    No. 20971.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 15, 1940.

      Glenn Capps, of Mason, for appellant.
    O. C. Fisher, Dist. Atty., and H. C. Upton, both of San Angelo, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge. ,,.

Appellants were convicted of receiving and concealing certain sheep, knowing the same to have been stolen, and were by the jury assessed a penalty of three years each in the penitentiary.

The'facts show that in December 1936, in Irion County, Tom Ault lost 43 head of sheep in the nighttime, taken without his consent. That soon thereafter, all these sheep were found in the possession of appellants. The ear marks were not changed, but the brands thereon, which were a black dot on the hip, had been hidden under a red block brand, and by a close scrutiny the original brand could be detected underneath the red block.

Trammel Wilson testified that he and one Frank Barfield, a cousin of appellants, had stolen these sheep from Mr. Ault, and had later taken these sheep to the farm of one Davis. At such time there was no red block brand on them. Mr. Davis testified that sometime during November he leased some land planted in oats to appellants for grazing purposes; that sometime in the latter part of December 1936 John Ringer phoned him at night that he was sending some sheep down to the Davis farm to be unloaded, and soon thereafter two boys came up with some sheep and unloaded same. Early the next morning about daylight John Ringer came to the Davis home, and he and two others turned these sheep out of the Davis farm and drove them to another nearby farm, that of Standley’s, which the appellants had also leased. These sheep at that time did not have a red block brand on them. When they arrived at the Standley farm these sheep were turned into a flock of about 1400 sheep. On the next-day appellants and two others yan these sheep into a corr.al and branded many of them with a red block brand, this brand, being placed over any other brand previously on such sheep.. It is further shown that the red block brand in each instance testified about wás placed over a previously existing brand, provided such other brand was present. Ou.t of this flock of sheep Mr. Ault and his neighbor, Mr. Mayer, identified' and recovered all of his 43 stolen sheep from the Ringers’ flock.

But one bill of exceptions is urged for our consideration, and that is bill No. 1. When questioning Trammel Wilson, one of the self-confessed takers of the sheep, the following is shown by such bill :

’ “Q. 'As a matter of fact, you didn’t even know the defendants upon the occasion you testified, did you Trammel? A. Well, I knew them when I saw them.
“Q. You knew them by sight? A. Yes, sir.
“Q.'When some one else pointed them out to you and told you who they were? A. Yes, sir.
“Q. State whether of not,- Trammel, it is not a fact that Frank Barfield at all times cautioned you not to ever let the defendants have a suspicion that there was anything wrong with the sheep, or that the sheep were being stolen, because if they knew about it they would not buy any more sheep; did he do that or not ? A. Yes, he cautioned me to that effect several times.”

Re-direct examination by Mr. Fisher:

“Q. I will ask you to state in connection with that whether he ever made any statement to you as to what B. C. had told him about fire branded sheep? A. Frank told me not to bring any more hot sheep; that is right.
“Q. And he told you that B. C. told him he didn’t want any more fire branded sheep? A. .Yes, sir.
“Q. Is that correct? A. Yes, sir.
“Q. Why did he tell you B. C. didn’t want any fire branded sheep? A. He didn’t say because 'of it.
“Q. Did he say anything to the effect that it was too hard to obliterate the brand and hide the brand? Is that right? A. Yes, sir.
“Mr. Capps: I asked him whether or not Frank Barfield cautioned him, and this testimony with reference to this conversation he had with the witness is purely'hearsay and cannot be admitted for any purpose. It is not shown the defendants were present and is not binding on defendants and is purely hearsay or declarations of one who is supposed to be the purported thief and is inadmissible against the defendants who, I understand, are charged with receiving and concealing.
“Mr. Fisher: He introduced part of the conversation and we want to introduce the rest with reference to what he said and how he knew about it.
“Mr. Capps: I didn’t ask him to state any conversation; I believe I asked him did he warn him or what Barfield did, but not with reference to any conversation he had between him and Barfield.
“The Court: For the present I overrule the objection.
“Mr. Capps: Note our exception.”

This bill is defective in that it is not therein affirmatively shown that the above quoted conversation took place outside of the presence of the appellant B. C. Ringer.

It is said in 4 Tex. Jur., p. 339, Sec. 230: “A bill of exception complaining of the admission of testimony as to transactions or conversations, over the objection that they occurred in the absence or out of the presence and hearing of the accused, must show as a fact that they occurred out of his presence and hearing; it is not enough to state merely as a ground of objection that such was the case.”

It will be noted that there are many cited cases thereunder supporting the text.

If any portion of such testimony was objectionable, it could only be the last question shown in the bill to the effect that “Did he say anything to the effect that it was too hard to obliterate the brand and hide the brand? Is that tight? A. Yes, sir.” From a careful reading of the bill the pronoun “he” seems to refer to the conversation between Frank Barfield and Wilson, and the “he” referred to what Barfield said about the difficulty of eliminating a brand made by fire, and was not a reference to what B.C. Ringer, may have told Barfield. It was a cpnversation between the two original, takers of these sheep, and did not purport to say' what B. C. Ringer told Barfield.

It is also'our opinion that because of the fact that appellants first introduced the subject of a conversation between the two original takers, that the State had the right under Art. 728, C.C.P., to introduce the remaining portion of such conversation relative thereto.

We held in Florence v. State, 109 Tex. Cr.R. 335, 4 S.W.2d 555, that where the appellant had introduced, without objection upon the part of the State, a statement made by an accused while under arrest, but not after a proper warning, that Art. 728, C.C. P., correctly authorized the remaining portion of such statement to be introduced. That opinion cites Venn v. State, 105 Tex. Cr.R. 19, 284 S.W. 955; Livingston v. State, 103 Tex.Cr.R. 372, 280 S.W. 802; Rueda v. State, 101 Tex.Cr.R. 651, 277 S.W. 116, 117. It will also be noticed that while .on his direct examination appellant denied having had any such conversation with Barfield.

We see no error reflected in the record. The judgment is therefore affirmed.

-On Appellants’ Motion for Rehearing.

CHRISTIAN, Judge.

An examination of the record in the light of appellants’ motion for rehearing leaves us of opinion that proper disposition of the appeal was made upon the original submission.

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: GRAVES,' Judge. CHRISTIAN, Judge.

text:
    BRITTAIN v. STATE.
    No. 20939.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 15, 1940.
    Chas. L. Nunn and R. Temple Dickson, both of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES,' Judge.

Appellant was charged with murder in that while intoxicated and driving an automobile, upon a public' highway of this State, by accident he collided with an automobile and killed R. C. Binnion and his wife, Mrs. Evelyn Binnion. Upon a conviction therefor he was sentenced to serve two years in the penitentiary.

This indictment evidently was drawn under the doctrine laid down in the cases of Jones v. State, 127 Tex.Cr.R. 227, 75 S.W.2d 683, and Totten v. State, 134 Tex.Cr.R. 62, 113 S.W.2d 194, and we think it properly charges an offense against our laws. See Art. 42, P.C.

There are no bills of exception in the record, and the facts alone are the basis of appellant’s complaint. By the facts it is shown, and practically admitted by appellant, that he was intoxicated on the night of December 24, 1938, when the accident occurred. He testified that he had drunk several bottles of beer and some whisky, and that he became sick, and that while at a cafe he started out to his car to go to sleep, when he was accosted by two boys, whose names he did not know, and whom he has since been unable to find, and they suggested that one of them drive the car for him. That previously while driving put to this inn or cafe he .had hit a sign along the road. One of these boys said he would drive the car, and appellant got in the middle between the boys, and soon thereafter “passed óut and went to sleep.” All that appellant remembered after that was “It seems like I saw a bunch of white lights and everything turned blind and seemed as if some one was pulling on my hair or trying to move me; that is the last thing I remember until I came to at the hospital,” some twenty-four hours later.

The State’s testimony shows the drinking of intoxicants by appellant just prior to the accident, an(i testimony of witnesses other than appellant shows he was intoxicated at the scene of the accident.

The State’s testimony further shows that on Christmas Eve 1938 Mr. C. R. Binnion and his, wife Evelyn, together with their four children, one eleven years old, one ten years old, one seven years old, and one five years old, had been to their paternal grandmother’s in Sweetwater to a Christmas tree, and after the tree festivities were over the Binnion family got in their two seated car to go to Fort Worth to their maternal grandmother’s to spend Christmas day; this was probably about 9:30 at night, the father and mother riding on the front seat and the four children' on the -rear seat. The oldest girl, Bobby; said thát after they had gotten out on the road east of Sweet-water some distance she heard her mother holloa to her father and tell him to look out; that she then looked and saw an automobile coming towards them without any lights showing, and immediately the crash came. The mother’s neck was broken, and she never moved out of the car, dying instantly; the father and one of the smaller children were knocked out of the car. The father also died from the injuries there received.

Appellant’s car was shown by other witnesses to have been driven first on one side and then on the other side of the road just a short time prior to the accident, and this car had probably struck a road sign but a short distance away from the scene of the accident, and paint of the same color as that of the sign was found on appellant’s automobile after the accident. Appellant’s unconscious body was found in a pasture about thirty steps north of the fence near the scene of the accident and opposite thereto by parties who early came upon the scene.

Appellant’s defense was that one of these boys must have been driving the car at the time of this tragedy, and afterwards must have taken his unconscious body over into this pasture, and then fled the scene. That he remembered nothing about the actual occurrence.

This defense naturally made it necessary that more than one person was in appellant’s car at the time it struck the car in which the Binnion family was riding. .

Lewis Williams, his wife and daughter had seen a car like appellant’s on the road on which the accident occurred but a short time prior to the occurrence, which car was proceeding in an erratic manner, going from one side of the road to another, and which “like to have hit them,” and which eventually ran into a road sign and down into a ditch by the side of the road. Mr. Williams, his wife and daughter lived about a half mile off the highway, and in about fifteen minutes after they got home the daughter came running into the room and said there had been an accident, and then they heard the siren blowing. The daughter said this was about 10:15, and when they turned off the road to go to their home the last she “saw of -that 'Car that night it was stopped about half way up the hill past the lake road in the bar ditch.”

Lewis ‘ Williams, whose- car' was being driven by the daughter as just above referred to, testified relative to this Model A-Ford at the time the Williams car turned off the highway, as follows: “I couldn’t see but one person in the car, and I seen it from both ways and my honest opinion that was all there was. That .car went on past the lake intersection and we stopped on top of the hill and he pulled .down in' the bar ditch and I said, ‘We will go on home,’ and we started and he started and Went up the bar ditch about fifty feet, and we went on home. The last time I saw him he was going along the bar ditch on the south side.”

It will be borne in mind that soon thereafter the witness and his daughter heard the siren, they having traveled about one half mile to their home, and about fifteen minutes having elapsed after their return home.

The court in a comprehensive charge gave a charge on circumstantial evidence, as well as on all- other phases of the case presented by the facts.

In our judgment the testimony is sufficient to show that appellant, in driving an automobile while intoxicated, by accident struck the car of Mr. Binnion and killed him and his wife Evelyn, and the jury was justified in thus saying by their verdict.

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of appellant’s motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for. rehearing is overruled.

PER CURIAM.

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


author: CHRISTIAN, Judge.

text:
    JAMES v. STATE.
    No. 21018.
    Court of Criminal Appeals of Texas.
    May 1, 1940.

      Mel T. Janes, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Officers testified that they went to the Canyon Club and instituted a search for intoxicáting liquor. It was their version that they found six cases of Pabst beer. E. W. Green, who owned the property, testified that he had leased it to appellant and E. E. Cole. Appellant did not testify and introduced no witnesses.

The only bill of exception in the record is concerned with the action of the trial court in permitting the officers to testify that they found six cases of beer in the Canyon Club. One of the objections interposed by appellant to such testimony was- that the affidavit and search warrant failed to show who had “charge of or possessed the premises” where the beer was found. An examination of the affidavit and search warrant discloses that the objection was well taken. The case of Miller v. State, 134 Tex.Cr.R. 118, 114 S.W. 2d 244, 246, is controlling. In that case it was not stated in the affidavit and search warrant that Miller lived on or occupied the premises described in the affidavit. In reaching the conclusion -that such an averment was necessary, this court, speaking through Judge Hawkins, said: “It is shown that the ‘fractional part’ of the acre — however much that may have been —was the premises of R. F. Miller, but no averment that -he lived on it, or occupied a dwelling on it. Many people own ‘premises’ on which there may'be situated many residences, all of which may be occupied by people other than the owner, when he in fact lives — has his residence — at an entirely different place. It is true the officers testified that they knew the house searched was appellant’s residence, but such testimony would not supply the omission of such averment in the description of the property in the affidavit and warrant.”

We are constrained to hold that the bill of exception reflects reversible error.

The jury returned a verdict finding appellant guilty as charged, and assessing his punishment at a fine of $250 “and/ or confinement in the county jail qf-.” A similar verdict was condemned in Eunie Cobb v. State, Tex.Cr.App., 139 S.W.2d 272, delivered April 24, 1940. In that case the court said: “It is obvious that the verdict is uncertain and for that reason cannot be upheld.”

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: CHRISTIAN, Judge. CHRISTIAN, Judge. GRAVES, Judge. .

text:
    MILLER v. STATE.
    No. 20918.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    On Appellant’s Motion to Reinstate Appeal April 17, 1940.
    Rehearing Denied May 15, 1940.

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

The offense is selling whisky in a dry area; the punishment, a fine of $200.

The transcript fails to disclose a judgment of conviction. Under the circumstances, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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

On Appellant’s Motion to Reinstate Appeal.

CHRISTIAN, Judge.

A supplemental transcript which-has been forwarded- to this court since the' appeal herein was dismissed shows a judgment of conviction. Hence the appeal is reinstated.

The record is before us without bills of exception.or a statement of facts. No question is presented for review.

The appeal- is reinstated and the judgment affirmed.

PER. CURIAM.

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

On Motion for Rehearing.

GRAVES, Judge. .

Appellant alleges in his motion that the complaint and information herein do not charge a violation of the law.; in what particular is not pointed out.

We have examined them both and they appear to be in the form often approved by this court.

The motion is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    ONDERDONCK v. STATE.
    No. 20909.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 15, 1940.

      Baldwin & Jernigan, of Beaumont, for appellant.
    Lloyd W. Davidson, ’ State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense 'is assault to murder with malice; the punishment assessed is confinement in the state penitentiary for a term.of three years.

The record shows that on the day-in question there was a seaman’s strike in progress in Port Arthur, Texas. Appellant, who was a strike breaker, came to the docks in a car driven by his mother. As their car passed by or through a line of strikers, appellant, without any cause or provocation, shot one of the strikers. He and his mother both testified that about two weeks prior thereto, some of the strikers threw rocks, brickbats, etc., at their car as they were leaving the docks, breaking the windshield of their car. On the day in question, some one of the strikers stepped in front of their car and another one attempted to get on the running board. Whereupon appellant shot his pistol, not with the intent to kill, but to scare them. The jury found appellant guilty as charged in the indictment and assessed his punishment as above stated. We deem the evidence sufficient to sustain his conviction.

The first complaint urged is that the verdict is not sufficient, -in that it fails to state whether the jury found him guilty of an assault to murder with or without malice. The verdict reads as follows: “We the jury find the defendant guilty of assault to murder as charged in the indictment, and assess his punishment at confinement in the state penitentiary for a term of three years.”

The indictment contained but one count charging appellant with the offense of an assault to murder with malice aforethought. When the jury found him guilty as charged in the indictment, they found him guilty of an assault with intent to murder with malice. The jury made the charging part of the indictment a part of their verdict as much so as if they had incorporated it therein. In support of what we have said we refer to the case of Lewis v. State, 86 Tex.Cr.R. 135, 217 S.W. 695. The case of Pleasant v. State, 137 Tex.Cr.R. 154, 128 S.W.2d 813, 814, is distinguishable. In that case, the verdict did not contain the words “as charged in the indictment.”

There are two bills of exceptions in the record. Both of these bills complain of the action of the trial court in overruling-appellant’s motion for a new trial and they will be considered together. It is made to appear from ’ these bills and the testimony which was adduced upon the hearing of the motion for a new trial that after the jury had been out deliberating for some time, they encountered some difficulty in agreeing upon the meaning of the term “during good behavior” which the court had used in his charge relative to appellant’s plea for a suspension of sentence. They filed back into court and asked the trial court to define said term. Appellant was present but his counsel was absent. The trial judge made an attempt to secure the presence of appellant’s counsel, but was unable to do so. He. then charged the jury orally that in order to have a suspension of sentence revoked it was necessary for a defendant to be thereafter convicted of a felony. Appellant, who was present during these proceedings, made no objection thereto. Later when counsel for appellant returned to the court room, and while the jury were still deliberating, the court informed him of the proceedings, but he made no objection thereto and permitted the matter to rest there until after the jury returned their verdict. The first complaint urged to the proceedings was in his motion for a new trial. Appellant does not contend that the instruction given was incorrect, but that the manner in which it was given constituted the error. He strenuously insists that the oral instruction to the jury in the absence of his counsel was fundamental error of which he might complain for the fir'st time in his motion for a new trial. He bases his contention on Art. 679, C.C.P., which reads as follows: “In felony [cases] but not in misdemeanor cases, the defendant shall be-present in court when any such proceeding is had as mentioned in the [last] three preceding articles, and his counsel shall also be called.”

The three preceding articles have reference to communications by the jury with the court in asking for further instructions or in having witnesses recalled for the purpose of repeating their testimony on a disputed point, etc.

The authorities hold that in most cases such additional instructions must be requested and given in open court and in the presence of the defendant. Such matter can be raised for the first time on motion for new trial. See Schafer v. State, 118 Tex.Cr.R. 500, 40 S.W.2d 147, and authorities cited. See, also, Vaughn v. State, 102 Tex.Cr.R. 207, 277 S.W. 646, 647, where it is stated that: “ * * * These provisions of the statute were intended to give 'effect to the provision of the Bill of Rights guaranteeing a public trial.”

But said statutes have not been construed as mandatory where appellant’s counsel voluntarily absents himself from the courtroom and the defendant is present when the additional instructions are asked. The court, after making a reasonable effort to secure counsel’s presence, may proceed to give such instructions as are deemed necessary. In Garcia v. State, 96 Tex.Cr.R. 324, 326, 257 S.W. 558, appellant’s counsel was absent and was called by the sheriff, but after waiting some time the court gave a special charge on circumstantial evidence in his absence. Such proceedings were held not to be error. In Harrison v. State, 69 Tex.Cr.R. 291, 300, 153 S.W. 139, the court gave further instructions in reply to a written inquiry of the jury in the absence of appellant’s counsel, just as was done in this case. In Wesley v. State, 67 Tex.Cr.R. 507, 509, 150 S. W. 197, it was held not to be error in the absence of appellant’s, counsel to allow the court reporter to read the testimony of a material witness in the case.. The court there tried to find appellant’s counsel, but was unable to do so. In McClellan v. State, 118 Tex.Cr.R. 473, 479, 40 S.W.2d 87, 90, the jury in open court requested additional instructions and they were given by the trial judge. Counsel in that case was voluntarily absent and beyond reach of the court. No exception was taken by appellant at the time of the instructions. On rehearing this court said: “It appears that appellant’s-attorney had voluntarily absented himself, being called on business to a distant city. Obviously, the trial court could not be compelled to delay the trial in order to submit this answer to counsel. Had his attorney been present, it would appear to have made no difference. We cannot conceive how the court could have elaborated upon the simple direct answer made to the jury’s question, nor could any elaboration have made same more manifest, or made an answer more responsive.”

We do not think that under the circumstances appearing from the record, the matter here complained of is of such a nature as could be brought up for the first time on motion for a new trial. In this case appellant’s counsel knew about the matter before the verdict was reached, but made no objection and made'no request that the jury be brought back and the instructions given in writing. If counsel, in such cases,' knowing the law, voluntarily absent themselves from court, and the court makes a reasonable effort to procure their attendance but fails, we do not think it necessary for the court to refuse to receive or consider the jury’s request presented in a proper manner, or indefinitely hold the jury awaiting the return of counsel. To hold otherwise would put an unreasonable burden on the court and jury.

It is noted that the trial court failed to make application of the Indeterminate Sentence Law as provided in Art. 775, C.C.P., Vernon’s Ann.C.C.P. art. 775. Sentence will be amended to direct appellant’s confinement in the penitentiary for not less than two nor more' than three years, and as thus reformed 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 Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of appellant’s motion for rehearing, we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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