author: SMEDLEY, Conpmissioner.

text:
    SIGLER v. REALTY BOND & MORTGAGE CO. et al.
    No. 1812—7449.
    Commission of Appeals of Texas, Section B.
    April 3, 1940.
    As Corrected on Denial of Rehearing May 29, 1940.

      W. L. Coley, of Fort Worth, for appellant.
    Richard U. Simon, Slay & Simon, McLean & Scott, Samuels, Foster, Brown & McGee,' Glover Johnson, James & Conner, E. E. Sanders, and R. V. Nichols, all of Fort Worth, for appellees.
   SMEDLEY, Conpmissioner.

The Court of Civil Appeals reversed the judgment of the district court and remanded the cause, but pending motion for rehearing certified one question to - this Court.

The suit, which is by appellant against appellees for damages on account of alleged misrepresentations, was filed in the district court for the 48th Judicial District, being one of the district courts of Tarrant County for which the rules of practice and procedure are prescribed by Article 2092 of the Revised Civil Statutes of 192S, as amended. Vernon’s Ann.Civ.St. art. 2092. Acts 41st Legislature, 1929, Ch. 222; Acts 41st Leg., 1930, 5th Called Session, Ch. 70; Acts 43rd Leg., 1934, 3rd Called Session, Ch. 33; Acts 44th Leg., 1935, Ch. 249; Acts 46th Leg., 1939, Ch. 28, p. 205.

The case was tried in the district court without a jury during the term that began on the first Monday in May and ended August 4, 1934. Article 199, subd. 17, Revised Civil Statutes of 1925. The trial was completed and judgment was pronounced by the court on July 12, 1934, that the plaintiff take nothing by her suit, but judgment was not entered on the minutes during the term at which the case was. tried and judgment rendered.

The plaintiff, appellant here, without filing motion for new trial, undertook to appeal from the judgment by filing on July 25, 1934, an affidavit of inability to pay costs of appeal or give security therefor. On August 13, 1934, which was during the term succeeding that in which the case was tried and judgment rendered, the judge of the district court signed and the clerk entered on the minutes a judgment which had been prepared by the defendants, appellees here. That judgment, as entered, made no reference to the fact that the case had been tried and the judgment in fact rendered at the preceding term. It was written as if the case had been tried and the judgment rendered on August 13, 1934, the date of its entry, and it does not purport to be a judgment nunc pro tunc. It recites that on this the 13th day of August, 1934, the case came on for trial; that, the parties appeared and waived a jury;, that the court after hearing the evidence finds that the plaintiff is not entitled to recover against the defendants; that the court orders, adjudges and decrees that the plaintiff be denied a recovery against the defendants; and that the plaintiff then and there excepted to the judgment and gave notice of appeal.

After the record was filed in the Court of Civil Appeals, that court granted appel-lees’ motion to dismiss the appeál, holding-that appeal had not been perfected because, according to the transcript, the affidavit of inability to give security for costa of appeal was filed before the judgment was rendered.

On October 2, 1935, the district court heard a motion filed in that court by appellant wherein she asked that the judgment as filed with the clerk on August 13, 1934, be corrected by order of the court so as to show that, the case was in fact tried ■and judgment rendered by the court on July 12, 1934. The order of the district -court made and entered after hearing that motion is as follows:

“Order Correcting Judgment.
“On this 2nd day of October, 1935, came •on to be heard the motion of Lucy Sigler, plaintiff in the above entitled and numbered •cause, for the correction of the judgment ■pronounced by this Court:
“Plaintiff appeared by her attorney, W. L. Coley, and the defendants appeared by •attorneys Richard Simón and R. V. Nich•ols, and thereupon it was agreed by said attorneys for the defendants that the cause was actually heard on the 12th day of July, 1934, before the court, a jury having been waived, and at the conclusion of the evidence and argument of counsel for the respective parties, the Court announced from the bench his judgment for the defendants and that plaintiff take nothing by her suit; and that the attorney for plaintiff then and there excepted to said judgment and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, and that said judgment was afterward written by the •defendants, presented to and signed by the Court and entered by the clerk on the 13th day of August, 1934.
“The Clerk of this Court is therefore ordered and directed by the court to file and record this instrument so that the record may show the facts as above stated.”

Thereafter, the appellant presented to the Court of Civil Appeals, in connection with her motion for rehearing, and to reinstate the cause, a certified copy of the order of district court entered October 2, 1935. Before acting upon the motion for rehearing, however, the Court of Civil Appeals certified to the Supreme Court, with a statement of the facts above set out, the following question: “And in view of the importance of the question, which may arise in other cases, we deem it advisable to certify to your Honorable Court for determination, whether or not we may in our discretion grant the motion and reinstate the appeal, notwithstanding appellant’s failure sooner to have the trial court make the correction in the judgment there rendered, and bring up a supplemental transcript showing such correction; and especially before the motions to dismiss the appeal were acted on by this court?”

The Supreme Court answered the question thus: “That the Court of Civil Appeals may in its discretion grant the motion to file the supplemental transcript, and may grant the motion to reinstate the cause for the purpose of giving consideration to the additional order in connection with the motions to dismiss.”

The answer was qualified, however, by the following statement: “This opinion must not be construed as containing any intimation as to the weight to be given the supplemental order of the trial court, or as to what should be the action of the Court of Civil Appeals upon the motions to dismiss.” 130 Tex. 585, 112 S.W.2d 180, 181, 182.

After receiving the Supreme Court’s answer to the- certified question, the Court of Civil Appeals set aside its order dismissing the appeal, reinstated and heard the cause and rendered judgment reversing the judgment of the district court and remanding the cause for trial.

On their motions for rehearing in the Court of Civil Appeals appellees again urged the contention presented in their motion to dismiss the appeal, that the Court of Civil Appeals was without jurisdiction because the affidavit in lieu of appeal bond was not filed in proper time. The Court of Civil Appeals, deferring action on ap-pellees’ motions for rehearing, has again certified to the Supreme Court a question in the case. The question now presented by the Court of Civil Appeals is: “Did this Court err in reinstating the appeal after we permitted appellant to file the amended trial court order?”

Appellant’s motion to dismiss the certificate is overruled. The certified question, taken literally, was answered by the former opinion of this court, for it was therein said in answer to the question first certified that the Court of Civil Appeals might, in its discretion, permit the filing of the supplemental transcript and grant the motion to reinstate the cause for the purpose of giving consideration to the additional order in connection with the motions to dismiss. However, when the question now certified is read in connection with the entire certificate, it appears to inquire whether thé Court of Civil Appeals, after giving consideration to the additional order of the trial court contained in the supplemental transcript, should sustain the motion of appellees to dismiss the appeal. The certificate is subject to dismissal because it is not accompanied by a tentative opinion as required by Amended Rule IS for the Supreme Court. 126 Tex. v, 99 S.W.2d xxix. But we do not dismiss the certificate because the case has been so long delayed in the appellate courts.

After careful consideration of the judgment entered by the trial court on August 13, 1934, and of the order of that court made and entered October 2, 1935, we have peached the conclusion that there has been no judgment entered in this case in the district court from which an appeal could be taken.

No judgment was entered in the minutes of the district court during the term at which the case was tried and judgment rendered by the court. A judgment to be effectual must be entered of record. Ex parte Rains, 113 Tex. 428, 433, 257 S.W. 217; Hamilton v. Empire Gas & Fuel Co., 134 Tex. -, 110 S.W.2d 561, 566. As said by Judge Quinan in Camoron v. Thurmond, 56 Tex. 22, 28, “All judgments must be entered in the minutes by the clerk under the direction of the court, for without this there can be no proof made of the judgment in other courts, and the party in whose favor it is rendered can have no benefit from it”. Associate Justice Brown in Palmo v. S.W. Slayden & Co., 100 Tex. 13, 15, 92 S.W. 796, 797, quoted with approval from the' opinion of Associate Justice Gould in Hill v. State, 41 Tex. 253, 255, as follows: “The trial may well be held incomplete until all issues of law as well as of fact have been determined and the final judgment entered. Until this is done no appeal can be prosecuted”.’ See, also, Coleman v. Zapp, 105 Tex. 491, 495, 151 S.W. 1040; Texas & N. O. R. Co. v. Texas Tram & Lumber Co., 50 Tex.Civ.App. 182, 110 S.W. 140, 142.

It is well settled by the decisions above cited and other authorities that appeal cannot be taken from a judgment that has been pronounced or rendered but has not been entered of record. The statement last made is subject to this qualification: steps for the perfection of appeal, as the giving of notice of appeal or the filing of appeal bond, may be taken after the rendition of judgment and before its entry, provided the judgment is in fact entered of record before the expiration of the term at which it was rendered. Cleburne National Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717; Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445; Samuels Glass Co. v. Martin, Tex.Civ.App., 131 S.W.2d 325.

Since the judgment rendered herein in the district court on July 12, 1934, was not entered during the term at which it was rendered, an appeal from it was not perfected by the filing on July 25, 1934, of affidavit in lieu of appeal bond, followed by the filing of transcript and statement of facts in the Court of Civil Appeals. In such circumstances, that is, when the term during which judgment was rendered, has. ■ ended, without the entry of judgment in the minutes, the proper procedure for appeal is to cause the entry at a subsequent term of'judgment nunc pro tunc and to perfect the appeal from the judgment. Then the right of appeal dates from the entry of such nunc pro turic judgment. Palmo v. S. W. Slayden & Co., 100 Tex. 13, 92 S.W. 796; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624; Texas & N. O. R. Co. v. Texas Tram & Lumber Co., 50 Tex.Civ.App. 182, 110 S.W. 140.

No judgment nunc pro tunc has been entered in this case. No effect can be given to the judgment entered August 13, 1934. It does not purport to be a judgment nunc pro tunc. It does not recite that the case was tried and judgment rendered at the preceding term on July 12, 1934, and it does not undertake to render judgment as of that date. Its recitals, all of which are untrue, are that the cause was tried on August 13, 1934, that judgment is rendered on that date for the defendants, and that the plaintiff then and there excepted and gave notice of appeal. Harrison v. Orr, Tex.Com.App., 296 S.W. 871, 876. The Court was without authority to try the cause and render judgment on August 13, 1934, when the cause had been tried and judgment rendered at the preceding term. It was likewise without authority to enter a judgment on August 13, 1934, reciting that it had done what in fact it had not done and what it had no authority to do.

The order entered by the district court on October 2, 1935, and appearing in the supplemental transcript is not a judgment nunc pro tunc; neither did it have the effect of converting the void judgment of August 13, 1934, into a judgment nunc pro tunc. The recitals of this order, as were those of the judgment of August 13, 1934, are, to use the language of Judge Nickels in Harrison v. Orr, Tex.Com.App., 296 S.W. 871, 876, “whdlly inappropriate in a proceeding for entry of a judgment nunc pro tunc”. This order amounts to nothing more than evidence of record showing the invalidity of the judgment entered August 13, 1934. It recites that the case was in fact tried and judgment rendered on July 12, 1934, that the judgment was afterward written by the defendants, presented to and signed by the court and entered by the cleric on the 13th day of August, 1934, and concludes with the statement that the clerk is ordered and directed by the court to file and record “this instrument” so that the record may show the facts as therein stated.

Since the case has been tried in district court and judgment rendered but no valid entry of judgment ever made, judgment may yet be entered nunc pro tunc, notwithstanding the long lapse of time since judgment was rendered. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040; Palmo v. S.W. Slayden & Co., 100 Tex. 13, 92 S.W. 796; Trotti v. Kinnear, Tex.Civ.App., 144 S.W. 326; Burns v. Skelton, 29 Tex.Civ.App. 453, 68 S.W. 527, application for writ of error refused.

In view of the fact that appellant in his attempted appeal filed an affidavit of inability to pay or give security for costs, we think it is not inappropriate to suggest to the Court of Civil Appeals that, if judgment nunc pro tunc is entered in district court and appeal is taken after the entry of such judgment, it may permit the filing and use in that appeal of the statement of facts and the transcript (with, of course, the necessary supplement thereto) that have been filed in the case now pending in that Court.

We answer the certified question as follows : The Court of Civil Appeals did not err in reinstating the appeal for the purpose of giving consideration to the order contained in the supplemental transcript in connection with the motion to dismiss the appeal, but, after giving consideration to the order, the Court of Civil Appeals should have dismissed the appeal for the reasons which have been stated in this opinion.

Opinion adopted by the Supreme Court.


source: Caselaw Access Project

author: GRAVES, Judge. HAWKINS, Presiding Judge;

license: Public Domain

text:
    HANDY v. STATE.
    No. 20298.
    Court of Criminal Appeals of Texas.
    April 19, 1939.
    Rehearing Denied April 3, 1940.

      W. Kennedy Smith, of Raymondville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This is the second appeal from a charge of murder, in both of such instances the death penalty was given by the jury. See 134 Tex.Cr.R. 162, 114 S.W.2d 878.

There is but one question presented herein for review, and that is the ruling of the trial court in refusing appellant’s application for a change of venue. The application contained an allegation that there existed against appellant so great a prejudice that he could not obtain a fair trial in Hi-dalgo County. That the grounds of such prejudice were based upon the publicity given by the local newspapers of the trials that had been heretofore had of this and a companion case against one Ascencio Martinez, as well as other newspaper stories relative to the killing of this same person for whom this appellant was being tried. That the newspapers had borne stories relative to finding the body of this deceased person in the Rio Grande river; of the attempts to ascertain who was guilty of having caused the death of such person; of the arrest of appellant and five of his supposed confederates in the crime; of their statements relative to such crime; of the result of the first trials of appellant and .Martinez, and of the reaction locally when these cases were reversed and remanded by this court. This application was supported by the oaths of W. D. Woodroof and D. C. Earnest as compurgators, and controverted by the district attorney who attacked by affidavit and otherwise the means of knowledge of such compurgators, and appellant’s only bill of exceptions relates to and complains of the court’s action in overruling his motion for such a change of venue, the burden of his motion being that on account of such widespread newspaper publicity given to such trials and series of events that this appellant’s cause had been prejudged by the citizenship of Hidalgo County, and that he could not obtain a fair and impartial trial therein.

The State, through its district attorney, vigorously combated such motion, and seems to have assumed the laboring oar in the hearing relative thereto.

D. C. Hogan testified that both Mr. Earnest and Mr. Woodroof, appellant’s com-purgators, had no means of knowledge towards the mental attitude of a large majority of qualified jurors in Hidalgo County; that they had no opportunity to contact such jurors sáve within a limited scope in and around the community of Edinburg and the northeastern part of said county. That under the last Federal census Hidalgo County was given a population of 77,004 and same had greatly increased since such census; there were ten incorporated towns in said county, four of which were larger in population than Edinburg; that the county in area embraced 1874 square miles, and contained numerous jurors who had never heard of these cases, or who had no prejudice relative thereto; that the appellant is not well known in the county; that he is of Latin-American extraction, and practically the only jurors who know him will, be those of the same extraction; that he can obtain a fair and impartial trial before a jury in Hidalgo County.

It was agreed by counsel for both sides that there were eleven incorporated towns in this county, and that their total population was 42,007, census of 1930.

The editors and circulation managers of the daily papers in Hidalgo County and its immediate vicinity testified relative to their different publications of the events surrounding these trials; they claimed such accounts were accurate and sometimes contained verbatim copies of certain portions of the testimony; that no editorials were written relative thereto however, and that they were only interested in same from a news viewpoint; that they made no effort to create a prejudice in the minds of the people, and did not think they had done so; that they had a - combined total circulation of approximately 32000 daily papers; that they knew of no reason why a jury could not be selected in such county that would give the appellant a fair and impartial trial.

Hon. C. K. Richards, a practicing attorney who lived at McAllen, testified that he had been living at McAllen ‘about six months, and in the County of Hidalgo almost two years, and in the Valley since 1925, and has a considerable acquaintance over the county; that he had heard these cases frequently discussed, and all such persons mentioning same believed that these Mexicans were guilty, and that he did not believe the appellant could get a fair trial in Hidalgo County. On cross-examination he said that he had attended one of the trials; that he had not discussed the case with any considerable number of prospective jurors, but that it was the general consensus of opinion on the streets of Edin-burg that a fair trial could not be had; that he believed such opinion was influenced by newspaper accounts, as none of the people whom he heard discussing such matters knew anything of the' facts; that he knew of no racial or religious prejudice, or prejudice of any other kind against the appellant. That his opinion was based on newspaper articles, and was subject to be rebutted.

Five additional witnesses were then offered by appellant, all of whom testified that based on newspaper accounts they had formed an opinion that appellant was guilty, and they did not think he could obtain a fair trial in such county; that they had never heard of any prejudice, — political, racial, religious or otherwise, — existing against this appellant. One of the witnesses, Mr. Hemphill, testified that he had heard several people say “that a bunch of us ought to get together and go and get these men and short circuit the legal procedure;” that he did not know their names, and that he felt that way about it, but felt sure that everybody else in the county did not feel the same way. That witness thought the case had heretofore been reversed and dismissed by the higher court, and therefore thought that the men would never again be tried for a crime that they had confessed to, and he was outraged about such proceedings, and thus thinking he would have felt the same way about the case had it happened in Dallas or anywhere else in the State.

Mr. Livingston, one of the above witnesses, testified that he had no prejudice against the appellant or his case. Mr. Earnest, the third witness, testified that he did not believe anybody could get a fair trial in Hidalgo County in an election year, but knew of no prejudice against this particular defendant. That witness could give defendant a fair trial, had no prejudice against him, and from what he had read he did not believe defendant was guilty, and the people that he had talked to expressed doubt as to his guilt.

Mr. D. C. Hogan, a State’s witness, said that he was assistant county auditor, had lived' in the county since 1921, in public work practically all the time, having been an assistant county attorney; that he knew both Mr. Richards and Mr. Earnest, the two compurgators, and knew their probable acquaintance in the county, and means of knowledge of the sentiment of the jurors therein. Mr. Earnest has -not driven an autoihobile for the past three or four years, and was not familiar with the sentiment of such jurors outside of the immediate locality of the city of Edinburg, and witness did not think that Earnest’s information and knowledge of such citizenship was-sufficient to enable him to express the sentiment of the citizenship of the county relative to this case or relative to affording the defendant a fair and impartial trial. Witness knew of no prejudice of any kind existing in the county that would prevent a fair and impartial trial in this cause. Mr. Earnest had been tax assessor of the county, and had been a deputy in the county tax assessor and collector’s office; that he knew a lot of people in the county. Witness had a fixed opinion in the matter, but if he had only obtained such opinion by reading newspaper accounts, he would be able to set aside such newspaper accounts; that he had heard no expressions of innocence relative to the defendant, and had heard expressions of opinions as to his guilt “if what I have heard is true”. Witness thought that a jury of qualified jurors could have been gotten out of a venire of 100 to 150 men. There were between 8000 and 10000 qualified jurors in Hidalgo County; the case has not been widely discussed in the county, but only in the populated centers.

The witness Hogan also knew the com-purgator C. K. Richards, who' had resided in the county not over three or four years. He did not think him qualified to pass upon the qualifications of the prospective jurors in this case; Mr. Richards would only come in contact with those persons whom he reached in his law practice, and did not have a very extensive acquaintanceship over the county.

J. R. Ragland, a farmer and trucking contractor, had lived in the county nineteen years, knew people in various rural parts of the county, and worked a great many Latin-Americans; had heard of these cases, hut never had discussed them with anyone; never heard this case mentioned, knew of no prejudice of any kind in the county that would prevent a fair and impartial trial being given this defendant; thought he could get a fair trial. He had read something in the paper about this case, but that would not influence him; he could sit as a juror in the case without any prejudice regardless of what he had read in the papers.

Gaston Riley was in the restaurant business in McAllen, did a rather large business, knew many people and had many friends; had read the headlines in the papers about the case; he believed the defendant could get a fair and impartial trial in Hidalgo County. He knew of no prejudice existing against the defendant of any kind, nor heard any such expressed. Witness could not say what other prospective jurors thought about the case; was only speaking for himself.

A. E. Guerre had lived in McAllen all his life; was twenty-seven years of age; was now in the wholesale grocery business, and had a fairly wide acquaintanceship in the county; had heard the case discussed among his friends and acquaintances, but had never heard of any prejudice of any kind existing in this county against the defendant; that he thought there were plenty of prospective jurors in the county who had not prejudged this case; most of the people in the towns, and some in the country, had read something about the case; that they might have formed some opinion thereon; that he thought there were plenty prospective jurors who had not prejudged this case.

J. J. Frost ran a service station at Mission; had lived there seventeen years, and had many acqttaintances over the county; knew of no prejudice existing against the defendant; in his opinion the defendant could get a fair and impartial trial from prospective jurors in the county; that he had heard no great amount of discussion of this case.

A. D. Dean had lived at McAllen since 1924, had a wide acquaintance over the county, had heard of these cases and discussed same with a few people, but not to any great extent; had never heard nor knew of any prejudice existing against the defendant, and believed he could get a fair trial in Hidalgo County. Hidalgo County was a cosmopolitan county; many of the citizens had never heard of this case; that he had a great deal of confidence in the fairness and integrity of the jurors of that county, and that he thought a fair jury could be found in that county as well as any other county of the State.

To practically the same general effect as the above was the testimony of E. E. Mar-burger who had lived in Mission since 1926, and was manager of the Great American Life Insurance Company, with a wide acquaintance over various parts of the county. Also to the same effect was the testi- . mony of P. H. Longoria, J. D. Lauck, C. F. Goode, M. C. Smith, L. C. Lemen, G. L. Callis and G. E. Brittan, all fairly prominent citizens of Hidalgo County, having resided therein for a number of years, all of whom thought that a fair trial could be had in such county before an impartial jury.

J. E. Berry testified for the defendant that he was well acquainted over the county, and that he believed on account of the publicity given to these former trials, and the newspaper publications, the defendant could not get a fair trial in this county; that he had heard more discussion by word of mouth than he had read; that he knew of no racial, political or religious prejudice existing against defendant, but on account of the fact that it was such a heinous crime, that it was the general sentiment that these defendants were guilty, and should be sent to the chair.

Floyd Langford, a banker, had lived at Mercedes eighteen years, with a wide acquaintance over the county; did not recall having heard of these cases, though he had probably read of them; had never heard them discussed, and had heard of no prejudice against the defendant. Pie thought a fair and impartial jury could be had in the county; that there could be prejudice, and he know nothing about it, but if it had been widespread it would in all probability be known to him. He did not think such existed.

Ed B. Olson, secretary and treasurer of the American Rio Grande Land & Irrigation Company, had lived in Mercedes sixteen years; had a wide acquaintance in the county; had never heard the case mentioned; knew of no prejudice of any kind against defendant or his case; thought a fair and impartial trial could be had in the county.

H. E. Hager had lived in the county twenty years; was city secretary of Mercedes; had also worked in the post-office, and was fairly well acquainted in the county; had talked of the case once or twice; knew of no prejudice against the defendant, and thought he could get a fair trial in Hidalgo County.

W. E. Cooper lived at La Villa; had lived in the county ten years; was a merchant ; had a general acquaintance over the county; had heard of this case, and read a good deal about it in the papers; believed that the defendant could get a fair and impartial trial in the county.

Carl I. H. Baker, a witness for defendant, lived in the northwestern part of the county near Stockholm; had been in the county for twenty-six years; had a wide acquaintance over the county; had heard of the case, and read a great deal about it; heard it discussed lots of times; the general opinion was that defendant was guilty; thought it would be hard to find a jury that did not know about the case, and who did not have their minds made up that defendant was guilty. That from what he had read and heard he thought defendant guilty; knew of no prejudice against the defendant; that if taken on the jury he could try the man on the evidence submitted and lay aside his opinion.

J. A. Glover, Jr., for the State, had lived at Mercedes about fifteen years, engaged in the grocery business; had a general acquaintance over the county; had heard of no prejudice; knew of no reason why a fair and impartial trial could not be had.

Jim J. Busby, a resident of the county for twenty-eight years, manager of a feed store at Mercedes, testified to practically the same thing as all of the State’s witnesses.

Joe Fernandez had lived in Mercedes all his life; was deputy tax assessor; knew about the case; knew of no prejudice; thought a fair trial could be had.

Harry Ratliff, secretary and manager of Weslaco, had lived there fourteen years; had a wide acquaintance; knew of no prejudice; thought a fair trial could be had in the county. ■ ■

E. E. Salge, C. Spears, R. R. Talbert and A. P. Miller, fairly prominent citizens, having lived in Hidalgo County for a number of years, knew of no prejudice, and thought a fair trial could be had.

K. C. Boysen, district clerk, for the defendant, testified that this defendant had been previously tried for this offense in this county, a jury venire of 120 men being drawn; 67 of the 120 were summoned; that of those 67 five were excused before voir dire examination; eight were excused by agreement of counsel, one excused because of mistake in being summoned, and five were excused because of over age; that of the veniremen examined ten were excused for having scruples against the infliction of the death penalty; three because of holding opinions; one because not an American citizen, and one because not a householder in the county; that the State and defendant exercised twelve peremptory challenges.

Miss Mary Anne Makens, a deputy district clerk, testified that the trials of these defendants were well attended; there were people sitting in the windows; the court room was crowded; the court room was small; the largest number attending the trial she would estimate at about ninety people; this number was about the same as would attend other murder trials.

There was other testimony of witnesses relative to this application, but in the main it was all of a similar nature to the testimony of which we have given a brief synopsis above. The bill of exceptions is very lengthy, comprising more than 75 pages of the transcript, besides a large collection of clippings from newspaper accounts of the various times this cause had been before the courts. In the above quotations we have endeavored to give a short synopsis of the general trend of the testimony offered on the application for a change of venue.

This motion was overruled by the trial court, “subject to being granted at the conclusion of the voir dire examination of prospective jurors.” The jury venire was then called, and ninety-nine prospective jurors were interrogated. The court asked the jurors collectively if they had formed any opinion regarding the guilt or innocence of the defendant, and twenty-nine of them arose, and were excused by the court. The defendant exercised fifteen peremptory challenges and the State twelve such challenges, and the defendant was then allowed one extra peremptory challenge, which he also exercised. After the selection of the jury the defendant again offered his motion for a change of venue, which motion was overruled by the court. It is .also shown by the bill that after having been charged by the court, the jury retired, and in four minutes returned into court with a verdict assessing the death penalty.

On account of the severity of the penalty, and the further fact that bill of exceptions No. 1 is the sole bill presented to us, we have gone to a great length in setting forth the testimony adduced thereunder in support of and in opposition to the motion for a change of venue. Narrowed down to its last analysis, this large amount of testimony shows that in the. past two years, at intervals, the newspapers with a circulation of about 34000 papers, have contained many articles designed to inform the public of the progress of what might be termed the “Donna murder cases,” and have thereby informed the reading public of what might be termed the facts in such cases; that many people had read these articles, and of a necessity they had made some impression on them. That the consensus of opinion of practically all the witnesses was that there was no combination of any kind, and no prejudice, • — religious, factional or otherwise,— against the defendant for the purpose of prejudging or influencing the outcome of his case. With this premise granted, we find ourselves relegated to one further proposition, and that is: Has such newspaper publicity created in the minds of prospective jurors in such county such a prejudice or prejudgment of this case that a fair and impartial trial cannot be had therein ?

Newspaper publicity and an opinion formed therefrom alone will not be sufficient to disqualify a juror. Art. 616, C.C. P., subdiv. 13, reads as follows: “That from hearsay or otherwise there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as will -influence him in his action in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in his opinion, the conclusion so established will influence his verdict. If he answers in the affirmative, he shall be discharged; if he answers in the negative, he shall be further examined as to how his conclusion was formed, and the extent to which it will affect his action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that he feels , able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial and will render such verdict, may, in its discretion, admit him as competent to serve in such case. If the court, in its discretion, is not satisfied that he is impartial, the juror shall be discharged.”

We also quote from Texas Jurisprudence, . Vol. 12, p. 466, as follows: “In some instances the acts of a person accused of crime have been the subject of public controversy in which newspapers have taken part to a' degree that rendered the publicity an important factor in creating such prejudice as would render it improbable that, pursuing the methods provided by law, an impartial trial could be had. It is not enough, however, for one seeking a change of venue to show the publication of newspaper articles in respect of the case; he must go further and show that by reason thereof there has. been created in the public mind so great a prejudice as will prevent him from receiving a fair trial. Evidence of such publications and their circulation is generally received and considered relevant on the issue of prejudice. It may be shown that circulars were distributed narrating the details of the crime. But the fact that a given matter has been presented by the press and discussed by the people does not necessarily result in prejudgment. And an inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained articles, descriptive of the offense, or editorials denunciatory of the accused, where the accounts are fair and not inflammatory, and apparently were published for the purpose of informing the public of current events and acquainting them with the facts in the case.”

Again we quote from Baw v. State, 33 Tex.Cr.R. 24, 24 S.W. 293: “The refusal to change .the venue was not error. The great weight of the testimony adduced upon the trial of the motion negatives the existence of the prejudice alleged, and the evidence does not show the existence of the combination of influence of persons set up. Under such state of case, this court has invariably refused to disturb the- ruling of trial courts refusing applications to change venue.” See Myers v. State, 77 Tex.Cr.R. 239, 177 S.W. 1167.

We quote from Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72, 73: “* * * It is a general and wholesome rule, we think, which declares that the inference of prejudice, requiring a change of venue, is not to be drawn from the fact alone that newspapers published in the vicinity have contained news articles descriptive of the of-" fense or editorials denunciatory of the accused. Downs v. State, 111 Md. 241, 73 A. 893, 18 Ann.Cas. 789, and notes; Ruling Case Law, vol. 27, p. 816, •§ 36. Evidence, however, of such publicátions and their circulation, is generally received and considered relevant. People v. Suesser, 132 Cal. 631, 64 P. 1095; Com. v. Ronemus, 205 Pa. 420, 54 A. 1095; Downs v. State, supra. This rule has been applied in this state in Gallaher v. State, 40 Tex.Cr.R 296, 50 S.W. 388; Faulkner v. State, 43 Tex.Cr.R. 311, 65 S.W. 1093; Cortez v. State, 44 Tex.Cr.R. 169, 69 S.W. 536; Fleming v. State, 62 Tex.Cr.R. 653, 139 S.W. 598.”

We quote from Jackson v. State, 103 Tex.Cr.R. 318, 280 S.W. 202, 204: “* * * Because a given matter, necessarily two sided, and possibly many sided, has been presented by the press, and discussed by the people, does not necessarily produce prejudgment. If it did, then men who read and talk with their neighbors, and who might be regarded as informed and intelligent men, would be cut off from jury service.”

We have thus laboriously attempted to go through all the testimony offered in this bill, as well as the exhibits of numerous newspaper clippings appended thereto, which clippings seem to contain matters of news, and are free from editorial denunciations of any character. It is worthy of note also that a jury was obtained out of the original venire, and no talesmen were summoned. That the death penalty was rendered by the jury in sq short a time may have been easily attributable to the heinousness of the crime, which, if the State’s testimony is to be believed, may have been sufficient to shock the conscience of any fair minded juror, and might have required but a short deliberation in arriving at the extreme penalty.

We are'impressed with the soundness of the trial court’s discretion when, he exercised the same in overruling the motion for a change of venue, and, in such belief, this bill of exceptions is overruled. There are no further bills in the record, and we are only confronted with the facts adduced upon the trial.

The witness Guadalupe Bueno in November 1934 found lodged on some obstruction in the Rio Grande river the dead body of a male person, about thirty-five years of age, about five feet five inches in height, weighing about 135 pounds. This body gave evidence of having been in the water for from four to six weeks; it had tied to it by a rope a portion of an old dismantled engine of a Model T Ford car; there were numerous tattoo marks thereon; it was partially clothed, and had a hat stuffed in a belt around the body. There were a number' of wounds on the body near the heart, some looked like dagger wounds, and some like knife wounds, and some like gunshot wounds; the front of the skull was crushed in, and the back of the skull was mashed and crushed in; the body was well preserved, and the facial features recognizable; his racial extraction could not be identified.

The witness Nicholas Yanez testified that he recognized the dead man as a person who, together with a woman, had spent the night at his mother’s, Teresa Chapa’s, house some few weeks prior to the time this dead body was discovered in the river. Teresa Chapa testified that some few weeks prior to the discovery of this dead body her son, Nicholas Yanez, brought a strange man and woman to her house, and they stayed there all night and part of the next day; she knew neither the man nor the woman; these persons had a grip and a trunk, and the man wore a wrist watch. After staying in her house all night, about 8 o’clock the next evening Placido Handy, the appellant, came to her house and got this man and woman, and loaded their baggage into Handy’s car, and took them away with him; just before leaving appellant told her and Nicholas, her son, that if anyone came and asked if he took this family away, to please not tell anybody. Appellant then got in the car with this man and woman and drove away from her house in the general direction of where this dead body was afterward found. That she never again saw this man and woman.

The testimony of Jose Rodriguez, a self-confessed accomplice, testified that he, together with six others, among them appellant, took this man and woman to a point on the Rio Grande river near what was called the “Red House”; that they tied the man to a tree, and each one raped the woman, and two of his companions raped her twice; that the woman was begging them to kill her rather than treat her in such manner. That they killed the man by beating him with pieces of iron, by shooting him, and by stabbing and cutting him, and that they then stabbed and cut the woman, and then shot her; that they then obtained these pieces of an old Ford engine and tied one piece to the man’s dead body, and another piece to the woman’s dead body, and took the bodies in a boat out in the river and threw them in the water.

The State introduced appellant’s confession, to the introduction of which we find no objection, in which he amply corroborates the accomplice, and shows therefrom a conspiracy to rob and kill this unknown man and woman, and shows the carrying out of this conspiracy, and the disposition of the bodies in the Rio Grande river; it shows the division of the property of these two unfortunate persons among the conspirators, followed by their fancied immunity for a period of two years, and then the supposedly voluntary statement of appellant, as well as one of his confederates in the crime. The river has never given up the body of the woman, she having a heavier piece of iron tied to her than the one tied to the man, but this unknown man’s dead body was mute evidence of the truth of the statements made, fully evidencing the truth of the statement of this appellant. Though their wage was small, they did their work well, and the State, though delayed, convinced the jury thereof, and we confess we see no other verdict reasonably probable under the circumstances than that of appellant’s guilt; and it is our' opinion that the penalty assessed was fully merited by the uncontradicted facts.

The judgment is affirmed.

On Motion for Rehearing. ,

HAWKINS, Presiding Judge;

Appellant insists in his motion for rehearing that we were in error in not sustaining his contention that the trial court should have ordered a change of venue.

We are cited to a number of cases which are thought to sustain appellant’s position, particularly Bond v. State, 121 Tex.Cr.R. 269, 50 S.W.2d 813; Richardson v. State, 126 Tex.Cr.R. 223, 70 S.W.2d 1003; Blackshear v. State, 126 Tex.Cr.R. 417, 72 S.W.2d 601. It is difficult to find a case which is a controlling precedent upon the question of change of venue for the reason that each case turns upon the facts in that particular case, hence precedents are not very helpful save as they announce general principles which may be applicable in the case presently under consideration.

In Willis v. State, 128 Tex.Cr.R. 504, 81 S.W.2d 693, 694, this court said: “Nothing is better settled than that in determining whether the trial court abused his discretion in refusing to change venue each case must be decided upon its own facts. No two cases are alike. Many holdings of this court are reviewed and cited in the able briefs of both counsel for appellant, who are to be highly commended for their earnest effort in a cause wherein they were appointed by the court and served without pay as faithful officers of the court. We do not find any case enough like this on its facts to justify holding it a precedent.”

To illustrate how the variant facts may impress the court in passing upon the question before us we refer to Richardson v. State, supra. There the trial judge reserved his ruling until he heard the statements of the veniremen, and their evidence on voir dire examination was made a part of the record. Out of 81 prospective jurors examined 68 entertained the opinion that Bond was guilty, and a number of them had themselves expressed opinions about it. The trial judge in the present case reserved his ruling until the veniremen were examined. Ninety-nine prospective jurors were examined. Forty-five were excused because of opinions. Only two stated what their opinion was, and both stated that they believed appellant was innocent. The jury was secured from the remaining 54 veniremen, and each juror chosen said he had no “opinion or impression” as to the guilt or innocence of appellant.

In Bond’s case, supra, he was a comparative stranger in the county, while deceased was generally and favorably known; had many kinspeople, both by blood and marriage, scattered all over the county. Two of the veniremen were excused because they were related to deceased, and after the trial it was discovered that four men who had sat on the jury were distantly related to deceased by marriage.

It is appellant’s position here that the newspaper stories regarding the killing caused a prejudice to exist against appellant. Whether or not this was true bl came a question of fact on the issue joined between appellant and the State. It was our effort in the original opinion to make a fair condensed statement of the evidence pro and con on such issue.

The evidence before the trial court and before us makes necessary the application of the rule stated very clearly in Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. 990, 992, as follows: “The statute fixes the measure of the court’s duty upon an application for a change of venue, namely, to grant the motion where, upon the uncontroverted motion or upon the evidence adduced, it is made to appear that there exists in the county ‘so great a prejudice against (the appellant) that he cannot obtain a fair and impartial trial.’ Code of Crim.Proc. art. 628. The burden is upon the appellant to prove the existence of such prejudice, and, where evidence is heard, the issue is to be determined by the trial court. The discretion is upon the trial court to weigh the evidence, and, if from it there arises two conflicting theories, the trial court has the discretion to adopt either. In the absence of the abuse of this discretion, the judgment will not be disturbed on appeal. If, however, the evidence is such that it leads to the conclusion that the bias, prejudice, or prejudgment of appellant or his case is such as renders it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. Dobbs v. State, 51 Tex.Cr.R. [629], 632, 103 S.W. 918. Injury is shown when it is made evident that under the procedure provided by law it is improbable that an impartial jury can be impaneled to determine the guilt of the accused, and a change of venue is denied. Barnes v. State (Tex.Cr.App.) 59 S.W. [882], 883; Randle v. State, 34 Tex.Cr.R. [43], 59, 28 S.W. 953; Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72, and cases cited.”

Other cases in which the same rule has been applied are Parker v. State, 91 Tex.Cr.R. 68, 238 S.W. 943; Walker v. State, 98 Tex.Cr.R. 663, 267 S.W. 988; Davis v. State, 101 Tex.Cr.R. 352, 275 S.W. 1029; Walker v. State, 124 Tex.Cr.R. 112, 60 S.W.2d 455; Fulton v. State, 132 Tex.Cr.R. 192, 103 S.W.2d 755. Because of the extreme penalty, and appellant’s insistence that we 'erred in our original opinion, the evidence on the issue of change of venue has again been most carefully examined, and we feel that this court would not be justified in holding that the learned trial judge abused his discretion in declining to change the venue under the evidence on that issue.

The motion for rehearing is overruled.


author: KRUEGER, Judge.

text:
    HERWIG v. STATE.
    No. 20934.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    Edgar Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for'the State.
   KRUEGER, Judge.

The conviction is for driving an automobile upon a public street of the City of San Marcos while in a degree under the influence of intoxicating liquor. The punishment assessed is confinement in the state penitentiary for a term of one year. This prosecution was initiated and maintained under Art. 802, Vernon’s Ann. P. C., which reads as follows: “Any person who drives or operates an automobile or any other motor vehicle upon any street or alley, or any other place within the limits of any incorporated city, town, or village, or upon any public road or highway in this State while such person is intoxicated, or in any degree under the influence of intoxicating liquor, shall upon conviction be confined in the penitentiary for not more than two (2) years, or be confined in the county jail for not less than five (5) days nor more than ninety (90) days and fined not less than Fifty Dollars ($50) nor more than Five Hundred Dollars ($500).” (As amended Acts 1937, 45th Leg., p. 108, ch. 60, § 1.)

The indictment in this case contains two counts. The first count, omitting the formal ■ parts thereof, charges that “Laura V. Herwig, on or about the 6th. day of June, 1939, and anterior to the presentment of this indictment, did then and there unlawfully while intoxicated drive and operate an automobile upon a certain public street situated within said county and state.” The second count charged that appellant, on or about the 6th day of June did then and there unlawfully, while in a degree under the influence of intoxicating liquor, drive and operate an automobile upon a certain public street, etc.

The court submitted the case to the jury on both counts. The jury acquitted appellant of the charge contained in the first count and convicted her under the second count. The acquittal of appellant on the first count in the indictment was a finding by the jury that appellant was not intoxicated at the time and place at which she was charged with having operated an automobile. The language in the second count, to-wit: “While in a degree under the influence of intoxicating liquor” is entirely too vague, indefinite and uncertain to charge an offense. In the case of Fuller v. State, 116 Tex.Cr.R. 310, 32 S.W.2d 358, 359, Judge Morrow in a concurring opinion said: “The words, ‘or in any degree under the influence of intoxicating liquor,’ as contained in article 802, P.C., are too indefinite to define a criminal offense.” The court further held, however, that such language in the statute did not invalidate it, since there was sufficient other language in the statute to make an offense of driving while intoxicated. See also in this connection the cases of Walker v. State, 134 Tex.Cr.R. 500, 116 S.W.2d 1076, and Morgan v. State, 134 Tex.Cr.R. 490, 116 S.W.2d 1079.

In the .case of Wilson v. State, 123 Tex.Cr.R. 415, 59 S.W.2d 399, 400, the indictment charged that appellant operated an automobile upon North Fannin Street in the City of Tyler, Smith County, Texas, while the said Wilson was to some extent wider the influence of intoxicating liquor. The charge of the court in that case followed the language contained in the indictment, just as in the instant case. In that case the court said that the words “in any degree under the influence of intoxicating liquor” did not create a crime. “Our statute, art. 6, P.C., declares inoperative an unintelligible law. * * * a statute cannot be enforced where its meaning cannot be determined by any known rules of construction.” See Augustine v. State, 41 Tex.Cr.R. 59, 73, 52 S.W. 77, 96 Am.St.Rep. 765; Russel v. State, 88 Tex.Cr.R. 512, 228 S.W. 566; Ex Parte Slaughter, 92 Tex.Cr.R. 212, 243 S.W. 478, 26 A.L.R. 891. The court went on to hold that a conviction had under an indictment charging only that an accused was to some extent under the influence of intoxicating liquor could not be sustained.

We do not deem it necessary to discuss the question at length in view of the fact that the matter has already been thoroughly considered and discussed by the court in the case of Wilson v. State, supra. From what we have said it follows that the judgment of the trial court should be reversed and the prosecution ordered dismissed, and it is so ordered.

PER CURIAM.

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


text:
    REESE v. STATE.
    No. 20944.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    Owen & Bohannon, of Brownwood, for appellant.
    Lloyd W. Davidson, Státe’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for possession of intoxicating liquor in dry area for purpose of sale; the punishment assessed is a fine of $100.

Appellant’s principal contention is that the evidence is insufficient to justify and sustain her conviction. " The proof shows that four officers, operating under a search warrant, went to the Mecca Café in Brownwood for the purpose of making a search for intoxicating liquor. Mr. Reese, appellant’s. husband, was not present, but appellant was operating the café in his absence. Several persons were present in the café at the time of the search. None of them appear to have been drinking any intoxicating liquor. The search by the officers revealed a one-half pint bottle half full of whisky in the ice box, and the officers later found a one-half pint bottle full of whisky in the upstairs part of the establishment. In all,'less than a pint of whisky was found. One glass, sitting on the shelf back of the counter, smelled of whisky. A number of empty bottles were found at the café. Appellant explained their presence by stating that sometimes persons came into the café and took a drink there and left the empty bottles. That they often loaned them a glass for this purpose. No other testimony relative to the sale of whisky on the premises was introduced, either at the time the officers searched or any time prior thereto. Appellant stated that she did not know that the whisky which the officers found on the premises was there, or how it came to be there. There was no proof that appellant at any time sold or offered to sell any whisky. The case was one of circumstantial evidence, and the court submitted a charge relative thereto. In view of the fact that less than a quart of whisky was found, the prima facie rule was inapplicable. In such cases this court has held that it is incumbent upon the state to introduce proof “to a degree of certainty greater than a mere probability or strong suspicion” tending to show that an accused possessed the whisky for the purpose of sale. Inasmuch as the state’s evidence shows that less than a quart of whisky was found on the premises, and fails to show that appellant had at any time' sold or offered to sell any intoxicating liquor, we are constrained to hold that the evidence fails to exclude every reasonable hypothesis except that of appellant’s guilt. See Williams v. State, 136 Tex.Cr.R. 511, 126 S.W.2d 976; Emerson v. State, 136 Tex.Cr.R. 502, 126 S.W.2d 971; Ballew v. State, 135 Tex.Cr.R. 454, 121 S.W.2d 369; Stevens v. State, Tex.Cr.App., 135 S.W.2d 487.

In view of the disposition we are making of the case, we do not deem'it necessary to discuss the other questions herein presented.

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

PER CURIAM.

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


author: ■ BEAUCHAMP, Judge.

text:
    PITMAN v. STATE.
    No 20950.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    Jewel N. Bauldwin, of Cleburne, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin-, for the State.
   ■ BEAUCHAMP, Judge.

The conviction is for perjury; penalty assessed at confinement in the penitentiary for two years.

The record is before this' court without statement of facts or hills of exception. Appellant entered a plea of guilty to the offense charged and waived a jury upon the trial. No error having been presented, the judgment of the trial court is affirmed.


author: CHRISTIAN, Judge.

text:
    SNOW v. STATE.
    No. 20935.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for six years.

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

The judgment is affirmed.

PER CURIAM.

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


text:
    SNOW v. STATE.
    No. 20936.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for theft of property over the value of $50; punishment assessed is confinement in the state penitentiary for a term of six years.

The record is before us without a statement of facts or bills of exceptions. The indictment is sufficient to charge the offense and procedural matters appear to be in due order.

The judgment is affirmed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    MASON v. STATE.
    No. 20948.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for selling whisky in Brown County, Texas, which is alleged to have been dry area; punishment assessed being a fine of $175.

The appeal must be dismissed because of a defective recognizance, wherein it is recited that appellant had been convicted of the “offense of selling liquor.” Selling; liquor is not an offense unless it be done in dry territory. There is no recital in the recognizance that appellant had been convicted of a misdemeanor as is set out in Article 831, C.C.P.

The same defect appears in this cause as in I. B. Burns, Sr., v. State, Tex.Cr.App., 140 S.W.2d 175, opinion dismissing appeal of this date, and the appeal in the present cause is dismissed for the same reason.


author:
KRUEGER, Judge.
      PER CURIAM.

text:
    WILHITE v. STATE.
    No. 20949.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    D. H. Massie, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of property finder the value of $50; the punishment assessed is confinement in the county jail for a period of one year and a fine of $100.

The record is before us without a statement of facts or bills of exceptions. The information is sufficient to charge the offense and procedural matters appear to be in due order.

The judgment is affirmed.

PER CURIAM.

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


author: WALKER, Chief Justice.

text:
    HENWOOD v. MASSINGILL.
    No. 3623.
    Court of Civil Appeals of Texas. Beaumont.
    March 4, 1940.
    Rehearing Denied March 27, 1940.
    Ramey, Calhoun & Marsh, of Tyler, for appellant.
    H. R. Rolston, of Lufkin, for appellee.
   WALKER, Chief Justice.

On the 8th day of July, 1939, in county court of Angelina county, judgment was rendered in favor of appellee, John Mas-singill, against appellant, Berryman Hen-wood, trustee St. Louis Southwestern Railway Company of Texas, debtor, for the sum of $530, damages assessed by a jury resulting from a railroad crossing accident. The evidence raised the fact issues of negligence submitted to the jury, and satisfactorily supports the-jury’s findings.

Proximate canse and its element “new and independent cause” were fact issues for the jury. The court submitted the following definition of proximate cause: “ ‘Proximate Cause,’ as used herein, means the moving and efficient cause, which, in a natural and continued sequence, produces the result complained of, and without which that result would not have occurred, and in the light of the attendant circumstances, such result, or a similar one, ought to have been foreseen by a person of ordinary care and prudence.”

Southland Greyhound Lines, Inc. v. Cotten, 126 Tex. 596, 91 S.W.2d 326, by the Commission of Appeals, supports appellant’s proposition that the court erred in refusing to define the term “moving and efficient cause” as used in the court’s charge. Appellee would support the court’s definition with Foster v. Beckman, Tex.Civ.App., 85 S.W.2d 789, which is in point. But as we construe the Cotten case, it overruled the Beckman case, and the authorities cited therein. The other points of error need not occur on another trial.

The judgment is reversed, and the cause remanded.


author: SPEER, Justice.

text:
    CENTURY INDEMNITY CO. et al. v. CARNES.
    No. 14043.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1940.
    Rehearing Denied April 5, 1940.

      Todd, Crowley & Thompson, of .Fort Worth, and Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, for appellants.
    Raymond E. Buck and Frank J. Knapp, both of Fort Worth, for appellee.
   SPEER, Justice.

This is a Workmen’s Compensation case, 'controlled by Articles 8306, 8307, 8308 and '8309, Revised Civil Statutes, the various sections and subsections thereof and the amendments thereto in Vernon’s Annotated Texas Civil Statutes.

Ralph B. Carnes sued Century Indemnity Company in the 17th District Court of Tarrant County, Texas, to recover compensation for injuries sustained- while in the course of his employment, alleging that H. Linsk & Company, a corporation, was his employer at the time he received the injury. •

Judgment was entered in favor of Carnes, and Century Indemnity Company, the insurance carrier, has appealed. Hereinafter we shall refer to Century Indemnity Company as appellant and to Ralph B. Carnes as appellee. When necessary to refer to the employer we shall do so as Linsk.

Unlike most cases which involve a construction of the Workmen’s Compensation Act of this State, it is admitted by all parties that there is only one question to be determined by this court, and that is: “Whether or not appellee at the time of his injury was such an employee of H. Linsk & Co. as entitled him to compen•sation insurance. * * *”

Appellant contends that appellee was not such an employee of Linsk at the time as would be protected by its policy of insurance, but was an independent contractor. That this being true, it was entitled to a peremptory instruction to the jury and a judgment thereon. Appellee contends that he was an employee of Linsk and covered by the policy of compensation insurance carried by Linsk with appellant.

The alleged employer had its principal place of business in Philadelphia, Pa., and appellee was its traveling salesman in Texas and three other states, handling a line of ready-to-wear garments. He was in an automobile accident while engaged in the discharge of his duties and received serious bodily injuries, as a result of which he sought the compensation involved in this suit.

If appellee’s relation to Linsk was that of an independent contractor, he was not covered by the compensation insurance carried, appellant was not bound and appellee cannot recover in this action. It is important then to approach the point with a clear understanding of what is meant by the term “Independent Contractor.” Much has been written on the subject and we find that what has been said by our courts in scores of opinions, is concisely stated in the text found in 23 Tex.Jur., Sect. 3, p. 542, in this language: “Numerous decisions make it clear that when service is rendered in the course of an independent occupation, and the will of the employer is represented only as to the result of the work and not as to the means by which it is carried out, or the details involved in, its performance, the person rendering the service is an independent contractor. The relationship of employer and independent contractor is distinguished from those of master and servant and principal and agent by the nature of the control exercisable over the work to be done and the person performing it. In the case of a master or principal, control extends to manner of doing the work and is more complete and detailed. An independent contractor, unlike a' servant or agent, is not under the immediate direction of the employer.” The quoted text is supported by many cases to which we also make reference.

It is not always easy to locate with perfect precision the line of demarcation between the two relationships. Each case stands largely upon the facts established at the trial. It is easy to perceive a situation in which it cannot be doubted that the relationship of master and servant exists when the servant, who perchance is an expert in his line with better knowledge than the master of just how the minute details of his task are to be performed, and with the knowledge of that fact the master directs him to perform the duty with the expectation that it will be efficiently performed. In such circumstances the employee does not become an independent contractor, but he remains the trusted servant of the master.

The contract between appellee and Linsk is neither wholly written nor oral. It is made up of fragments of letters passing between them, by long distance telephone conversations, and by a construction of a previous contract, consummated in the same manner, between Linsk and a brother of appellee who preceded him in the work.

The statement of facts before us contains 480 pages and obviously it would be impossible for us to do more than refer briefly to certain parts which bear upon the point under consideration. Finley Carnes, the brother of appellee, made a deal with Linsk late in June, 1936, to sell the latter’s goods in Texas. His employment was- likewise brought about by correspondence, telephone conversations and parol agreements with Linsk. Finley Carnes went to Philadelphia and talked with a representative of Linsk. His purpose in going there was to ascertain with some degree of certainty what he would receive for his services and to learn what his duties would be; he was shown the line of goods to be sold and told the manner in which they were to be sold — the company’s method of selling its merchandise. Witness was told that the company would expect him to have an automobile in which to travel; that he would be expected to visit customers in the larger cities every thirty days and those in the smaller towns once or twice each season; he was required to send in a route sheet each week showing where he would be during the following week, blanks were furnished him for that purpose; that he would be required to carry Linsk’s line exclusively; that he was to receive $50 each week and five per cent, commission on certain lines and seven per cent, on others, for all goods sold; that the $50 per week was sent to him by Linsk throughout the time whether his commissions amounted to that sum or not. The witness said Linsk wrote him at one time they had heard he was carrying another line of goods in connection with theirs, and protested his acts, but that in fact he had not done so and the matter was agreeably settled.

The testimony reflects that during December 1936, appellee traveled with his brother Finley Carnes for the purpose of learning the trade and becoming acquainted with the customers. On January 1, 1937, Finley Carnes resigned the position with Linsk in a long-distance telephone conversation and recommended that they employ appellee upon the same terms upon which witness had been employed; Linsk agreed to the arrangement and ap-pellee took over the work under the same terms and conditions that his brother had previously performed it.

Appellee testified that he talked on the telephone to Linsk at Philadelphia and confirmed his conversation by letter which shows to be dated January 7, “1938”, but evidently intended for 1937, in which he expressed himself as understanding that he was to have Texas, Louisiana, Arkansas and Mississippi as a territory, and was to continue under the same arrangements previously had with his brother, viz., “to receive 7% and 5% commission, with $50 per week drawing account against the same.” In that letter appellee, in compliance with Linsk’s requirements, inclosed his route list for the next week, showing that he would cover South Texas during that time, and requested the remittance of a check for the amount agreed on.

A letter from Linsk to appellee dated January 11, 1937, was introduced, acknowledging appellee’s letter of the 7th, in which this was said: “The Louisiana buyers make their purchases very early, and Mr. Harry Linsk, therefore, feels that it will be to your advantage to work this territory first, as they are really bigger buyers than the Texas territory, and he would not want you to miss any of the business that can really be had.”

Appellee was told by Linsk in a letter under date of March 16, 1937, to kindly watch datings and was warned that that was an evil which must be overcome, and reasons were given in the letter why it was so important, and insisting that they must have his co-operation in that respect. In the same letter he was instructed to not take orders for small quantities because it was too costly to fill them. He was there likewise warned to carefully watch “discard lists” and said: “When a list is sent out, it means absolutely the end of those particular numbers. Act immediately in the future please.” By letter of March 25, 1937, appellee was requested to sell as promptly as possible all goods carried over from a past season, and that it was imperative that he give separate copies of orders on “sheers”; that those instructions must be followed to the letter. Under date of March 17th he was instructed to call on two named firms at San Antonio, Texas, and convey certain information to them about deductions of freight on former orders. Several other letters are shown in the record in which he was given instructions concerning certain lines of goods mentioned and was told that these instructions are imperative and must be observed. March 19th, in a letter Linsk asked that certain samples be returned because the articles were oversold and further instructions that if appellee’s customers desired to advertise certain articles Linsk would furnish cuts and mats for that purpose; May 8th, Linsk wrote ap-pellee for the names of customers in different cities with a view to advertising before appellee was scheduled to call upon them; he was urged to give the matter prompt attention. By letter of February 27, 1937, appellee was told that Linsk desired its representatives to go out about March 14th, in an effort to sell a certain line, and he was asked to give his views on the subject regarding his own territory and was cautioned to be definite and not general. June 7, appellee was told in a letter in effect that certain deliveries would be made starting with July 15th, and this definite instruction was given: “Now in case you cannot interest a customer in the folders in a certain town, please endeavor to sell the lucky charm frocks anyway, as we are interested in getting additional business.” In a letter dated June 26, 1937, Linsk acknowledged receipt of appellee’s route list and noted that he would not visit Louisiana until July 3d, and said they thought the date set was rather late for that territory “As there are some large department stores from whom we feel you could obtain very good business if you got there in time before all our competitors. Mr. Linsk therefore, thinks it advisable for you to change your route and get there before the 3rd if possible.” Other letters were introduced in which Linsk advised appellee that certain customers in his territory were inquiring about the goods and he was requested to call upon them at once and display the line.

On September 23, 1937, appellee received a letter which as we construe it gives some very definite instructions in regard to the details of his work; it is lengthy, but briefly it instructed him: “Do not give datings, this always causes so much difficulty and delays delivery”; to mark orders if confirmation is required; deliveries were not to be promised confined to November 1st and December 1st; appel-lee was exhorted to watch carefully prices, since mistakes caused the house much trouble; shipping instructions must accompany the order, and customers must be advised that orders were filled F. O. B. Philadelphia.

We have not attempted to set out those parts of the evidence which appellant contends support its theory of the case, viz.,, that Linsk had no right of control over the details of how appellee should perform his contract in selling the merchandise, thus rendering him an independent contractor. Nor have we referred to all that was offered to the contrary, but only enough to show what we believe to be sufficient to-raise a jury question. The burden of appellant’s contention here is that there was no competent testimony to raise the question of master and servant, and, therefore,, its peremptory instruction should have been given; that instruction having been refused then the court should have sustained its motion for judgment non ob-stante veredicto.

The contract between Linsk and' appellee was not wholly in writing. Viewing it as contended for by all parties, its. legal effect was not such as could or should have been construed by the court, but its apparent ambiguities were susceptible to-explanation by parol evidence, all of which presented jury questions of fact. Howell v. Continental Casualty Co., Tex.Civ.App., 110 S.W.2d 210, writ dismissed, and cases-cited.

The first special • issue submitted to the jury, to which there was no objection by appellant, reads: “Do you find from a preponderance of the evidence that FI. Linsk & Company, in the contract made between the company and Ralph B. Carnes, in January 1937, retained control over the said. Carnes in respect to the details and the means and method by which he should do his work?” The answer was “Yes”.

Under a proper explanation by the court of what constituted an independent 'contractor, Special Issue No. 9 was propounded in this language: “Do you find from a preponderance of the evidence that plaintiff Ralph B. Carnes was not an independent contractor?” The question was answered “He was not”. No complaint was made by appellee as to placing the burden of proof as contained in the issue, but we need not take cognizance of that now. Carter v. Hodges, Tenn.Sup., 132 S.W.2d 211.

It is a well settled rule of law in this State that evidence is sufficient to support a jury verdict if to discard all adverse evidence and to give credit to all evidence that is favorable to the successful party and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor. 17 Tex.Jur., sect. 410, p. 911; see, also, City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652; McCarty v. Hogan et al., Tex.Civ.App., 121 S.W.2d 499, writ dismissed, and the many cases there cited.

An equally well established rule is that where the evidence is conflicting on a given point such as would support a verdict either way and the jury resolves the facts in favor of one party, the appellate court is powerless to substitute its oym findings for that of the jury. 41 Tex.Jur., Sect. 378, p. 1246; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed, judgment correct.

The parts of the testimony offered to which we have referred, and even more in the record than that mentioned by us, shows to our minds that the parties themselves construed their contract in a way that reserved to the employer a right to govern and control the details of how ap-pellee should do his work; certainly every detail was not commanded by Linsk, but evidenced by the things done by Linsk and observed by appellee, the employer did exercise that control in such matters and in such manner as it thought necessary for the performance of appellee’s duties. There was a requirement that appellee travel in an automobile while visiting the trade; that he furnish his own transportation; visit customers in the cities once a month and in the smaller towns once or twice a season; keep Linsk posted each week where he would -be during the following week; when appellee chose a certain route for a given week he was instructed to change and make other territory for reasons stated; to urge sales of certain classes in preference to others; to avoid making certain promises of delivery; to go to certain territory at given dates; details were given to appellee concerning advertising by customers- and that Linsk would furnish advertising matter. It appears that appellee’s employment was not for a definite period but could be terminated by Linsk at any time. Under Federal requirements, appellee was required to take out a Social Security card and the amount due the government thereon was deducted by Linsk from his pay check. See Carter v. Hodges, Tenn.Sup., 132 S.W.2d 211. The employer took out.compensation insurance covering Linsk’s clothing salesmen, located in the State of Texas. The policy provides “Operations in other States covered under separate policy.” Ap-pellee was the only clothing salesman Linsk had in Texas, he had the exclusive right to sell Linsk’s goods to the trade in Texas.

We think there was ample testimony adduced, of a substantial nature and of probative effect, to support the verdict and judgment entered. In fact as well as in good conscience and reason it was all but conclusive.

The cases cited by appellant in support of its contention do not announce a different rule to that applied by us in this case. One of the early cases, Cunningham v. International Railroad Co., 51 Tex. 503, 32 Am.Rep. 632, discusses the distinguishing features between work done by independent contractors and that done by those termed servants. The rule there applied was in these words: ■ “The true test * * * by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether.he, renders the'service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.”

In National Cash Register Co. v. Rider, Tex.Com.App., 24 S.W.2d 28, approved by the Supreme Court,' it was held that in a case where damages were sought against an alleged principal for the negligent acts of an alleged servant, the relationship between those two would control. It was there said (24 S.W.2d at page 30): “In every case which turns upon the nature of the relationship between the employer and the person employed, the essential question to be determined is whether the employer had the right to exercise control over the details of the work.” It was further found in that case that the National Cash Register Company did not have the right of control of the employee in any essential part of the work which he was doing for its benefit.

The case of Southern Surety Co. v. Scheel, 125 Tex. 1, 78 S.W.2d 173 (incorrectly cited at both places in briefs), is not different from the earlier cases cited. The facts set out in the opinion disclose the soundness of the conclusions reached by the court in holding that deceased was an independent contractor. The facts in that case are not comparable to those before us. The distinguishing features of other cases cited and relied upon by ap'pellant prompt us to' pretermit a discussion of each.

We have not attempted to relate that part of the testimony in this case which was most favorable to appellant’s contention that Linsk had no control over ,.the details /of how appellee was to perform his work;"this, because of the conflicts shown, and determined by the jury against appellant’s theory. But appellant 'i&'.mSistent that it should have had an instructed verdict because, among other things, appellee signed a statement which contained this: “Neither company have anything 'tó ' do with ' my routes or routing. When and where I traveled was strictly up to me, they understanding of course, that I 'was in much 'better position to choose where and when to go than they were.” Appellant' also says that by his deposition' appellee further testified, with reference to his contract with Linsk and the authority the employer had to control the manner in which he performed his work, as follows: “Well, there was nothing said about telling me where to go, but they have that privilege.' That is one of the things with all salesmen that any firm can do.” The first quoted statement, although ' against' appellee’s interest and contrary'to his contention made upon the trial, was not conclusive. It only raised an issuable fact to be determined by the jury from all the facts and circumstances developed upon the trial. New St Anthony Hotel Co. v. Pryor et al., Tex.Civ.App., 132 S.W.2d 620, writ refused, and the many cases there cited.

Appellant further urges that the uncontradicted testimony shows appellee was carrying samples and placing orders for another concern along with those of Linsk. This is all true, but there is ample evidence in the record to the effect that Linsk had consented for him to do so. By this token appellant contends that ap-pellee could not have been such an employee of Linsk as would entitle him to protection under the insurance contract for the reason, it is said, “No man can serve two masters.” (Matt. 6; 24.)

Appellant in its briefs, no doubt with full knowledge that the findings of the jury upon the facts were binding on ,this court, displays the thought that it, like other appellants in cases cited, had been penalized by an unsympathetic jury. Our jury system is not all that one might hope for, nor will the time ever come, we fear, that men’s acts will always be right; but until an improved procedure is provided we must abide by such as we have. All men are fallible; none are perfect, we perceive, even though we have the Divine command of “Be ye therefore perfect, even as your Father which is in Heaven is perfect.” (Matt. 5; 48.)

Our courts-have so frequently and uniformly declared that the jury “is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony,” that it has become axiomatic— who is there to gainsay it? Apropos this point, the Supreme Court of Missouri, in Whiteaker v. Chicago, R. I. & P. R. Co., 252 Mo. 432, 160 S.W. 1009, at page 1012, said: “May not one with propriety * * take leave to recur' to first principles and observe, to wit, that the invention .of a jury to weigh and determine the credit due to human testimony, and settle facts in doubt -or dispute in a trial at law, is to be' rightly taken as one of the splendid achievements of civilized man. While not ideally perfect, yet,'having been brayed in the mortar'of experience with the pestle of common sense, 'as' human institutions run, trial by jury has stood the test of use ■and justifies itself as indispensable. * * A jury trial ‘is the most cherished, if not the most valuable institution, we have derived from our Saxon ancestors.’ * * The average judgment of 12 jurymen of average sense, drawn, as they are, from all the walks of life and impartially selected * * * is more likely to reach a practical result in sifting, weighing, rejecting, reconciling proof, and deciding facts than is that of the trained and technical reasoner or specialist whose mind runs in the groove of artificial analysis and logic; for peradventure men do not usually get into trouble through logical processes, and logicians cannot always get them out of it.”

We conclude that there is ample testimony of a substantial nature in this case to present an issue of fact as to whether, under the contract between Linsk and ap-pellee, the former retaihed the right of control over the latter with respect to the details and the means and method by which he should do his work. This question was answered by the jury in the affirmative. Assuming then, as we must, this much is established as a fact, the relationship of master and servant existed as a matter of law, between those parties, and appellee could recover his compensation for injuries sustained. This being admittedly the only point involved in this appeal, the judgment of the trial court based upon the verdict should be affirmed. It is accordingly so ordered.


author: MURRAY, Justice.

text:
    PANTHER OIL & GREASE MFG. CO. v. ANDERSON.
    No. 10707.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1940.
    Rehearing Denied April 3, 1940.
    Crane & Glarner, of Raymondville, for appellant.
    S. P. Nielsen, of Sebastian, for appellee.
   MURRAY, Justice.

This suit was instituted by A. A. Anderson against Panther Oil & Grease Manufacturing Company, in the Justice’s Court, Precinct No. 4, Willacy County, Texas, for the sum of $98, $60 of which was for damages, $18 for freight paid on roofing material,' and $20 for reimbursement of amount paid on account.

Panther Oil & Grease Manufacturing Company, a corporation, filed in due time its plea of privilege to be sued in the county and precinct of its residence, that is, Precinct No. 1, Tarrant County, Texas.

Anderson filed his controverting affidavit setting up the fact that the Manufacturing Company had entered into a contract in writing to perform an obligation in Precinct No. 4, Willacy County, Texas. The affidavit did not specify what the nature of the obligation was. It did state that on or about September 24, 1937, at Sebastian, Willacy County, Texas, Anderson entered into written contracts with the Manufacturing Company for the purchase of 100 gallons of Battleship Liquid Asbestos Roof Coating, and that the contracts are attached to the affidavit and marked Exhibit “A” and referred to and made part of the affidavit for all purposes. The contracts attached to the affidavit read as follows:

“Bought of Panther Oil Sept. 24, 1937. & Grease Mfg. Co. Fort Worth, Texas
Charge to A. A. Anderson Payment Plans: Jan. 1, 1938. Postoffice Sebastian, Texas.
1 Container, Capacity 35, Total quantity in Gal. 35. Battleship Liquid Asbestos Roof Coating. Price per gal. $1.27
.1 Brush — 4 rolls tape.
Signature of Buyer,
Salesman Signature
H. J. Hall A. A. Anderson”
“Bought of Panther Oil & Grease Mfg. Co. Sept. 27, 1937
Charged to A. A. Anderson Payment Plans: Jan. 1, 1938. Sebastian, Texas.
1 Container, Cap. 65 — Total Quantity in Gal. 65 Battleship Liquid Asbestos Roof Coating. Price per gal. $1.15
3 rolls tape — 1 Brush.
Signature of Buyer: A. A. Anderson Salesman Signature -”

After reading these contracts we are still at a loss to know what obligation the Manufacturing Company had contracted to perform in Precinct No. 4, Wil-lacy County, Texas. The conclusion that the Manufacturing Company had entered into a written contract to perform certain obligations in Sebastian, Willacy County, Texas, is entirely too general to state any fact or facts upon which Anderson was relying to hold venue in Precinct No. 4, Willacy County, Texas. For this reason alone the plea of privilege should have been sustained. However, after examining the evidence we do not find any obligation which the Manufacturing Company had contracted in writing to be performed in Precinct No. 4, Willacy County.

On the reverse side of the contracts is found what is labeled, “Our Liberal Seven Year Guarantee,” which reads as follows:

“1. Satisfaction: If Battleship Liquid Asbestos Roof Coating and Battleship Plastic Cement are applied according to the simple printed instructions furnished with the invoice, we positively guarantee (see paragraph 2 below) Battleship Asbestos Roof Coating for a period of seven years. If the roof on which it is properly applied should leak during the guarantee period, we will furnish — no charge — sufficient additional coating for you to keep your roof in a waterproof condition. (The privilege is granted us to furnish, without cost to you, an inspection of your roof at any time during the seven year Guarantee Period.)
“2. Battleship: Should Battleship Liquid Asbestos Roof Coating and Battleship Plastic Cement be applied according to our simple printed instructions and the account discharged per terms of order and fail to give you roof protextion for seven years from invoice date, excepting in case of earthquakes, cyclones, and other acts of God, we hereby agree to furnish no charge sufficient additional coating for you to keep your roof in a waterproof condition for the full duration of the seven year guarantee period."

This guarantee is that if the material is properly applied to the roof and the account discharged per terms of the order, and it fails to give the roof protection for seven years, the Manufacturing Company agrees to furnish “no charge sufficient additional coating” to keep the roof in a waterproof condition. Anderson shows that he has not performed his part of the contract, because he has not discharged the account per terms of the order. Furthermore, the Manufacturing Company does not agree to furnish the additional coating in any certain place.

Appellee, Anderson, contends, however, that the Manufacturing Company having filed a cross-action it has thereby waived its plea of privilege. We overrule this contention. 43 Tex.Jur. p. 882; Hickman v. Swain, 106 Tex. 431, 167 S.W. 209; Goldman v. Whittle, 115 Tex. 9, 273 S.W. 806; Martin v. Kieschnick, Tex.Com.App., 231 S.W. 330; Whisnant v. Kurtz, Tex.Civ.App., 228 S.W. 977; Griffith v. Gohlman, Lester & Co., Tex.Civ.App., 200 S.W. 233; Hall v. Castleberry, Tex.Civ.App., 283 S.W. 581; Employers’ Casualty Co. v. Wm. Cameron & Co., Tex.Civ.App., 288 S.W. 584; Grogan-Cochran Lumber Co. v. McWhorter, Tex.Civ.App., 4 S.W.2d 995; Matthews v. Hedley Motor Co., Tex.Civ.App., 47 S.W.2d 661.

The judgment is reversed and judgment here rendered that the cause be transferred to the Justice’s Court Precinct No. 1, Tar-rant County, Texas.