text:
    SPARENBERG et al. v. LATTIMORE et al.
    No. 7668.
    Supreme Court of Texas.
    April 24, 1940.

      M. Hendricks Brown and Cantey, Hanger, McMahon, McKnight & Johnson, all of Fort Worth, for relators.
    P. J. Schelb, of Fort Worth, pro se.
   CRITZ, Justice.

This is an original proceeding instituted directly in the Supreme Court by Charles and Russell Sparenberg against Elizabeth Schelb and her husband, P. J. Schelb. The Judge of the 17th District Court of Tarrant County, Texas, the .county judge of such county, and the attorney for the Schelbs are also made parties. The relief sought by this action is writs of prohibition and injunction. Such relief is sought on the ground that it is necessary to protect and enforce the final judgment rendered by this court in cause No. 7372, Schelb et al. v. Sparenberg et al., 133 Tex. 17, 124 S.W.2d 322.

Under the Constitution this court has jurisdiction to issue writs of prohibition and injunction, and other writs which may be necessary to enforce its jurisdiction. It therefore has power to issue such writs to enforce its judgments. Sec. 3, Art. V, Texas Constitution Vernon’s Ann.St.; Rio Bravo Oil Co. v. Hebert, 130 Tex. 1, 106 S.W.2d 242; Leo Crouch et al. v. McGaw (Panama Refining Co. et al.), Tex.Sup., 138 S.W.2d 94; Yount-Lee Oil Co. et al. v. Federal Crude Oil Co. et al., Tex.Civ.App., 92 S.W.2d 493.

It appears that in November, 1933, Mrs. Elizabeth Schelb made application to the County Court of Tarrant County, Texas, to probate the alleged last will and testament of Mrs. Johanna Sparenberg, her deceased mother. Charles and Russell Sparenberg, grandsons of the deceased, filed contest, but later withdrew the same, and the will was duly probated. Mrs. Schelb was named independent executrix of such will, and after its probate, duly qualified as such.

After Mrs. Sparenberg’s will was probated, and after Mrs. Schelb had qualified as independent executrix and was proceeding to act as such, Charles and Russell Sparen-berg instituted an action in the County Court of Tarrant County to annul the probate of such will. This action was finally tried in the county court, and judgment rendered denying the relief sought. Charles and Russell Sparenberg appealed from such judgment to the District Court of Tarrant County.

In addition to the action filed in the county court to annul the probate of Mrs. Spar-enberg’s will, Charles and Russell Sparen-berg filed a civil suit in the District Court of Tarrant County, Texas, against Elizabeth Schelb individually and as independent executrix of the will and estate of Johanna Sparenberg, deceased. P. J. Schelb, husband of Elizabeth Schelb, was also made a party defendant in this suit. By their suit in the district court the Sparenbergs sought to recover their interest in the Johanna Sparenberg estate. They also sought a full accounting by Mrs. Schelb for all moneys and properties belonging to the Johanna Sparenberg estate, which had come into her possession either individually or as executrix.

After the suit in the district court was filed, the Schelbs filed an answer attacking the jurisdiction of the court to hear and determine the matters presented for adjudication by the petition of the Sparenbergs. While this suit was pending undetermined, the district court entered an order enjoining the Schelbs from disposing of any of the properties -of the Johanna Sparenberg estate, and also enjoining the Schelbs from creating any debts against such estate.

The Schelbs appealed from the above-mentioned order, which was a temporary injunction, to the Court of Civil Appeals at Fort Worth. As we understand this record, the Schelbs contended in such appeal that the temporary injunction was erroneous and void because the district court was without jurisdiction to hear and determine the matter presented for adjudication by the petition of the Sparenbergs. On final hearing in the Court of Civil Appeals of the appeal from the temporary injunction, supra, the judgment of the district court was affirmed, on the ground that the district court had jurisdiction in the premises. Schelb v. Sparenberg, Tex.Civ.App., 89 S.W.2d 1062. No writ of error was prosecuted to the Supreme Court from this judgment and opinion of the Court of Civil Appeals, and it became final.

From the statement we have made it appears that two causes were pending in the District Court of Tarrant County, Texas. One of these causes was the appeal from the judgment of the county court refusing to annul the probate of the Johanna Sparen-berg will. The other was a civil suit filed directly in the district court, above described.

' With conditions as above described, the Schelbs and the Sparenbergs duly agreed to consolidate the two suits, and try them together. In conformity with such agreement, the district court proceeded to consolidate the two causes, and to try them together as one cause. All parties filed pleadings, and joined issues.

Final trial in the district court of the consolidated suits resulted in a judgment for the Sparenbergs against the Schelbs, annulling the probate of the Johanna Sparen-berg will, and holding same not entitled to probate. After annulling the probate of the Johanna Sparenberg will, the judgment of the district court in the consolidated causes adjudicated and adjusted all claims and equities between the Sparenbergs and the Schelbs, regarding the Johanna Sparenberg estate and its properties, and fully adjudicated and adjusted their interests in such estate. Simply stated, the judgment adjudicated and adjusted all equities and claims between the parties, and adjudicated and adjusted all matters growing out of Mrs. Schelb’s administration as independent executrix.

The Schelbs duly appealed from the above judgment to the Court of Civil Appeals at Fort Worth. On final hearing in that court the judgment of the district court was in all things affirmed. 111 S.W.2d 324. The Schelbs applied to this court for writ of error, and same was granted. On final hearing in this court the judgments of the two lower courts were both affirmed. 133 Tex. 17, 124 S.W.2d 322. The judgment of this court has become final, and mandate duly issued.

After the happening of the above events the Schelbs, through their attorney, here named, filed a pleading in the District Court of Tarrant County, styled “Motion To Set Aside Judgment.” As we interpret such pleading, it is in no sense a bill of review. It is simply an effort to file a proceeding in the district court to set aside the original judgment of that court, after such judgment had been affirmed by the Court of Civil Appeals and by this court. Also, such pleading seeks to again litigate many of the issues theretofore determined and litigated in the original final judgment of such court, already fully described by us. Such pleading, in effect, further seeks to have the district court adjudge itself without jurisdiction to try some of the issues it determined in the original final judgment, and to adjudge that the probate court of Tarrant County has exclusive original jurisdiction to try such issues. The petition also seeks to have the district court transfer a part of the cause to the county court to try the issues it is, in effect, contended by the Schelbs the district court was without jurisdiction to try. All of these issues proposed to be re-tried in the two courts have already been litigated and decided in the original judgment affirmed by this court.

It appears that the Schelbs have also filed in the probate court of Tarrant County an original application for administration upon the estate of Mrs. Johanna Sparenberg, deceased. This application was filed more than six years after Mrs. Sparenberg’s death. It 'was therefore filed too late. We understand the purpose of the attempted administration proceeding is to have the probate court again pass upon many of the matters disposed of by the district court in the judgment affirmed by this court.

After the mandate issued by this court in the original cause had been returned to the district court, the Sparenbergs filed application in that court for the disbursement and distribution of the funds and assets in the hands of the receiver theretofore appointed by the district court. This application also applied for orders of sale and other process necessary and proper to effectuate and carry out the original judgment. The trial court entered the order prayed for, except he ordered the receiver to retain in hjs hands $1,100, pending decision with reference to whether that sum should be paid over to the attorney for the Schelbs. The district court also entered a judgment dismissing the motion or proceeding filed by the Schelbs entitled “Motion To Set Aside Judgment,” above described. The Schelbs excepted to such judgment, and gave notice of appeal.

With the record as above indicated, this court granted the motion of the Sparen-bergs to file original petition for writs of prohibition and injunction.

Since the above motion was granted, and since this petition was filed, it has been made known to this court that the Schelbs made an attempt to appeal the order of the district court dismissing the “Motion To Set Aside Judgment.” Such attempted appeal has been dismissed by the Court of Civil Appeals.

From the statement we have made it is evident that the subsequent proceedings attempted above, both in the district court and in the probate court, are efforts to interfere with and nullify the judgment of this court. It is also evident that such proceedings seek to again litigate the matters already litigated and decided in the judgment of this court. Finally, it is evident that such proceedings are in no sense bills of review. It follows that the re-lators are entitled to the relief sought herein. Rio Bravo Oil Co. v. Hebert, supra; Leo Crouch et al. v. McGaw (Panama Refining Co. et al.), supra; Yount-Lee Oil Co. et al. v. Federal Crude Oil Co. et al., supra.

It appears that since the filing of this proceeding the attorney- for the Spar-enbergs has withdrawn from this case, and has 'withdrawn as the attorney for such parties in the district and county courts, and has disclaimed any further interest in any of such causes. It is therefore evident that no necessity now exists for this court to grant any relief against such attorney.

It also appears that the proceedings filed in the district court, above described, and complained of in this cause, have been very properly finally dismissed by that court. It is therefore evident that no necessity now exists for this court to grant relators any relief in this action against the district judge.

It is therefore ordered:

1. That the county judge of Tarrant County, Texas, be enjoined from proceeding any further with the above-described proceedings filed in the Probate'Court of Tarrant County, Texas, except to dismiss .the same.

2. That no relief shall be granted the relators against the attorney for the Schelbs, or the district judge, because under the present state of this record no relief is now necessary.

3. That writs of prohibition and injunction shall issue against Elizabeth Schelb and P. J. Schelb, as prayed for by the relators.

4.That Elizabeth Schelb and P. J. Schelb shall pay all costs of this proceeding.


source: Caselaw Access Project

author: SMEDLEY, Commissioner.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. ROBERTS.
    No. 1809—7436.
    Commission of Appeals of Texas, Section B.
    April 24, 1940.

      T. R. Boone and Kearby Peery, both of Wichita Falls, for plaintiff in error.
    Napier & Napier, of Wichita Falls, for defendant in error.
   SMEDLEY, Commissioner.

This is a workmen’s compensation case. The Court of Civil Appeals affirmed the judgment of the trial court in favor of defendant in error, the employee, against plaintiff in error, the insurer, for compensation payable in installments of $10.50 per week for a period of 297 weeks, on account of injury suffered by plaintiff in error in the "course of his employment. 116 S.W.2d 417.

Most of the assignments of error relied upon for reversal present two contentions: First, that good cause for defendant in error’s failure to file his claim within six months from the date of his injury has not been sufficiently pleaded and has not been proven; and second, that the trial court was without authority to render judgment measured by a wage rate found by the jury under Subsection 3 of Section 1 of Article 8309 of the Revised Civil Statutes of 1925, when the jury had found in effect that there were other employees of the same class who had worked substantially the whole of the year immediately preceding the time of plaintiff’s injury.

The allegations of defendant in error, plaintiff in the trial court, bearing upon the question of good cause for delay in filing the claim are in substance as follows :• The injury to plaintiff occurred on September 10, 1934, when he was struck violently over the left eye by a piece of heavy pipe. His skull was fractured and he was otherwise injured. Plaintiff does not know the exact nature of his injury but as a result thereof he has suffered excruciating pain and has developed a sinus infection. By reason of his injury and the resulting sinus infection, plaintiff has been, ever since September 1, 1936, totally disabled, which condition is permanent. The allegation having particular reference to delay in filing the claim is: “Plaintiff alleges if he did not give notice of his injury or file his claim with the Industrial Accident Board within the time prescribed by law, then the reason for his failure to do so, if he did so fail, was that his disability did not arise until about the time that said claim was filed, and he believed up until that time that his injury was trivial, and that it would not result in any injury or in any disability, and by reason of the foregoing allegations good cause existed for his failure to give said notice of injury and file his claim for compensation as hereinabove alleged, if he did so fail.”

The pleading is in our opinion sufficient against general demurrer. The reasons for this conclusion will appear from what is hereinafter said with respect to the facts in evidence.

The jury found in answer to special issues that on September 10, 1934, plaintiff sustained an injury _in the course of his employment and suffered total and permanent disability as the result of the injury and that his total disability commenced on or about September 8, 1936. It further found that plaintiff believed until about the time his claim was filed that his injury would not disable him; that such belief prevented him from filing his claim up until the time it was filed; and that a reasonably prudent person situated as plaintiff was situated would have for such reason so delayed the filing of his claim.

The evidence tending to support the findings of the jury above referred to, most of which is taken from the testimony of plaintiff, is in substance as follows: The injury occurred September 10, 1934, while plaintiff was working as a laborer in an oil field for Tucker Oil Company, and the claim was filed September 1, 1936. The blow from the pipe made a cut on plaintiff’s head above his left eye about an inch and a quarter long. He went to Dr. Carpenter, who took four stitches in the cut. He remained at home until the third or fourth day and returned to work, but worked only half a day because his eye swelled so that he could not see. He remained at home two more days, returned to his work and continued on the job thereafter until August 1935, when his employer, Tucker Oil Company, cut its pay roll and he was “laid off”. Thereafter he did extra work for various oil companies.

Following his injury plaintiff suffered almost constantly from pains in the left side of his head. He did not think the pain was serious. It did not prevent him from working and he believed he would recover. It was for these reasons that he did not file claim for compensation. About September 1, 1936, the pain became more violent and serious and plaintiff went to a lawyer and to Dr. Adams, an eye, ear, nose and throat specialist.

Dr. Adams testified that he found from examination of plaintiff and subsequent treatments of him that he was suffering from infection in the left ethmoid sinus, which is under the eye and back near the brain. He expressed the opinion that the condition was of long standing, was progressive and evidently getting worse; that the injury was probably permanent; and that plaintiff would not be able to work in an oil field. Dr. Adams testified further that in his opinion the infection of the eth-moid sinus was probably caused by the injury suffered by plaintiff when he was struck on the head in September, 1934.

Dr. Carpenter, who treated plaintiff when he was first injured, and who was a witness for defendant, testified that the wound healed quickly and plaintiff returned to work in a few days; that he saw plaintiff again on September 19, 1934, and he apparently had a normal recovery; that plaintiff came to him again August 28, 1935, complaining of loss of vision and dizziness ; that he examined the wound at that time and sent plaintiff to Dr. Johnson, an. eye, ear, nose and throat specialist. Dr. Carpenter testified that plaintiff was not disabled when he examined him in August, 1935. Dr. Johnson, called as a witness by defendant, testified that he examined plaintiff’s eyes in August, 1935, found no abnormal condition except eye strain and advised plaintiff to get glasses. He did not examine the sinuses.

It is in our opinion apparent from the foregoing statement of some of the evidence that the jury’s answers to the issues relating to good cause for the plaintiff’s delay in filing claim are not without evidence to support them. According to plaintiff’s testimony, he was during the period from the time of his injury to the time when his claim was filed able to work and did work and believed that his injury was not serious, although he suffered from headaches. The fact that he was not disabled during that time is indicated also by the testimony of Dr. Carpenter and Dr. Johnson, and their evident belief that his injury was not serious tends to prove the truth of plaintiff’s statement that he did not believe it was serious. The evidence in our opinion brings the case within the rule stated by Chief Justice Hickman in Texas Employers’ Insurance Association v. Clark, Tex.Civ.App., 23 S.W.2d 405, 408, as follows: “That the employee did not believe his injuries to be serious would clearly afford a good cause for' not giving notice and filing claim until it was learned that they were serious. Compensation is not provided for pain and suffering, but for loss of wages, and there would arise no necessity for giving notice or filing a claim so long as the employee lost no time from his work, but believed his injuries were trivial.”

The existence of the same rule, though somewhat more narrowly defined, was recognized by Judge Sibley in Mayers v. Associated Indemnity Corporation, 5 Cir., 108 F.2d 89, 90, in which he said that while ordinarily belief that the injury will not get well does not excuse timely claim, “there may arise cases where the injury appears so trifling and the result is so unexpectedly serious, that the case may present ‘good cause’ for not filing.”

In the Mayers case and in other cases relied upon by plaintiff in error, of which General Accident Fire & Life Assurance Corporation v. Martin, Tex.Civ.App., 110 S.W.2d 258, is a fair example, it was conclusively shown by the plaintiff’s" pleading or testimony or by undisputed evidence that the injury was not trivial and that the plaintiff long before he filed his claim knew, or as a reasonably prudent person should have known, that the injury was serious and had caused or would cause incapacity. It was on that account held in such cases that no proof had been made of good cause for delay in filing claim.

The instant case differs from those cases in that there is evidence in this case, as above set out, from which the inference may fairly be drawn that until the time when the claim was filed the plaintiff believed and was reasonably justified in believing that his injury was not serious and would not disable him.

The case is peculiar on account of the nature of the injury, infection of the eth-moid sinus caused, according to evidence offered by plaintiff and the jury’s verdict, by a blow on the head. The seriousness of such injury was not necessarily apparent to the injured employee as it was in the hernia cases, Johnson v. Employers’ Liability Assurance Corporation, 131 Tex. 357, 112 S.W.2d 449, and New Amsterdam Casualty Company v. Keller, Tex.Civ.App., 62 S.W.2d 637.

We do not hold that good cause for delay in filing claim can be shown in every case by allegation and testimony of the plaintiff that he was not fully aware of his physical condition. Our decision is that the evidence in this case is sufficient to raise the issue of good cause. Ordinarily the question whether good cause exists for not filing a claim for compensation within six months after the occurrence of the injury is a question of fact. Williamson v. Texas Indemnity Insurance Company, 127 Tex. 71, 75, 90 S.W.2d 1088; Cunningham v. Fidelity & Casualty Insurance Company, Tex.Civ.App., 102 S.W.2d 1106; Scott v. Texas Employers’ Insurance Association, Tex.Civ.App., 118 S.W.2d 354, application for writ of error refused. The evidence brings this case within that general rule.

By several assignments of error plaintiff in error complains of the action of the trial court in rendering judgment measured by a wage rate found by the jury under Subsection 3 of Section 1 of Article 8309 of the Revised Civil Statutes of 1925, when the jury had in effect found that there were other employees of the same class who had worked substantially the whole of the year immediately preceding the time of plaintiff’s injury.

The jury found in answer to special issue No. 14 that the plaintiff did not work, in the employment in which he was engaged at the time of his injury, substantially the whole of the year immediately preceding the injury. This finding is supported by evidence.

The fifteenth special issue is as follows: “Do you find from a preponderance of the evidence that there was no other employee of the same class as the plaintiff, who worked substantially the whole of the year immediately preceding the time of plaintiff’s injury, if any, in the same or in a similar employment, in the same or a neighboring place”. The jury answered “No”.

In answer to the sixteenth special issue the-jury found as an average weekly wage, deemed just and fair to both, the sum of $17.50. Plaintiff filed a written motion that the court disregard the jury’s finding in answer to special issue No. 15 and render judgment for plaintiff for the sum of $10.50 per week, being sixty per cent of the average weekly wage as found by the jury in answer to special issue No. 16, the motion alleging that the jury’s answer to special issue No. 15 had no support in the evidence, in that all of the evidence showed conclusively that there was no such other employee and that the nature of the work was such that one could not work in such employment more than half of the time. The motion was granted, after noticé and hearing, and judgment accordingly rendered. There is contained in the judgment the recital that the court finds that the jury’s answer to special issue No. IS has no support in the evidence' and that the court further finds that there was no other employee of the saíne class as the plaintiff who worked substantially the whole of the year immediately preceding the plaintiff’s injury in the same or similar employment.

The only evidence in the statement of facts relevant to issue No. IS is the testimony of the plaintiff, the substance of which is. as follows: He had lived in the oil field in Wichita County west of Burk-burnett about nine years and had worked for Tucker Oil Company with the connection gang‘and doing relief pumping and as a roustabout from 1930 to 1934, when he was injured. During the year immediately preceding his .injury he worked not exceeding two-thirds of the time. He was familiar with oil field work in Wichita County and surrounding counties, having followed it for eleven years, and knew working conditions in the neighborhood for more than a year before he was hurt: He “will say” that a man working with a connection gang in the oil field where he was employed during the year before he was hurt, or in any other oil field in the neighborhood, could work only about a fourth of the time, this being because the nature qf the work was such that it could not be carried on all of the time.

As was held in American Employers’ Insurance Company v. Singleton, Tex.Com.App., 24 S.W.2d 26, approved’by the court, the burden of proof was on the plaintiff claiming compensation to offer legal evidence establishing an average weekly wage under one of the three subsections of Section 1 of Article 8309 of the Revised Civil'Statutes, and further the burden was on him to show by competent evidence that it was impracticable to compute the average weekly wage under either Subsection 1 or Subsection 2 before resort could be had to Subsection 3. Plaintiff obtained a jury finding, supported by evidence, that it was impracticable to compute the average weekly wages under Subsection 1. He failed; however, to obtain a jury finding that it was impracticable to compute the wage rate under Subsection 2. As to that subsection the jury’s finding made in answer to special issue No. IS was against the plaintiff, it being that the jury did not find from a preponderance of the evidence that theré was no other employee of the same class who had worked substantially the whole of the year immediately preceding the tim'e of plaintiff’s injury. According to this finding, the plaintiff failed to establish by competent evidence that it was impracticable to compute the average weekly wage rate under Subsection 2.

The trial court had no authority to disregard the jury’s answer tó special issue No. 15 and render judgment for compensation measured by a wage, rate found by the jury, in answer to special issue No. 16, under Subsection 3, unless Article 2211 of the Revised Civil Statutes as amended in 1931, Acts Regular Session, 42nd. Legislature, Ch. 77, Vernon’s Ann.Civ.St. art. 2211, authorized such action. Article 2211, as amended provides that upon motion and reasonable notice the court may disregard any special issue jury finding that has no support in the evidence. Defendant in error contends that the jury’s answer to special issue No. 15 is wholly without evidence to support it 'and that the trial court correctly disregarded it, because it is shown by uncontradicted evidence that there were no other employees who worked substantially the whole of the immediately preceding year in the same or in a similar employment. The fault in the position thus taken is that the only evidence bearing upon the issue is the testimony of the plaintiff. Simmonds v. St. Louis B. & M. Ry. Co., 127 Tex. 23, 27, 91 S.W.2d 332, 333. On account of that fact the issue should have been submitted to the jury and the trial court was not authorized to disregard the jury’s answer. It was within the province of the jury to disregard the plaintiff’s testimony. “As to the testimony of interested witnesses, the general rule is that, while the jury has no right arbitrarily to disregard the positive testimony of unimpeached and uncontradicted witnesses,- the mere fact that the witness is interested in the result of the suit is deemed sufficient to require the credibility of his testimony to be submitted to the jury. Stated in another form, the rule is that the uncontradicted, uncorroborated testimony of a party to a suit will not authorize or support an instructed verdict.” Simmonds v. St. Louis B. & M. Ry. Co., supra; Pope v. Beauchamp, 110 Tex. 271, 280, 219 S.W. 447; Sonnentheil v. Christian Moerlein Brewing Company, 172 U.S. 401, 19 S.Ct. 233, 43 L.Ed. 492, 495; Mills v. Mills, Tex.Com.App., 228 S.W. 919; Burle-son v. Tinnin, Tex.Civ.App., 100 S.W. 350, application for writ of error refused; Traders & Genera] Insurance Co. v. Milliken, Tex.Civ.App., 87 S.W.2d 503, 505.

The plaintiff’s testimony, the substance of which has been hereinbefore stated, is not so clear, positive and unequivocal upon the point at issue and of such nature’ and given under such circumstances as to bring it within the exception to the above quoted rule and authorize the trial court to give conclusive effect to it. Great Southern Life Insurance Company v. Dorough, Tex.Civ.App., 100 S.W.2d 772, 775, 776; Springfield Fire & Marine Insurance Company v. Wm. Cameron & Company, Tex.Civ.App., 96 S.W.2d 788; Simonds v. Stanolind Oil & Gas Company, Tex.Sup., 114 S.W.2d 226, Id., Tex.Com.App., 136 S.W.2d 207, 208; Traders & General Insurance Co. v. Milliken, Tex.Civ.App., 87 S.W.2d 503, 505.

It is our opinion, after careful examination of the .statement of facts, that the jury’s findings that plaintiff’s disability was caused by the injury and that his disability was total and permanent are not without evidence.to support them.

Because of the trial court’s error in disregarding the jury’s finding in answer to special issue No. 15, the judgments of the district court and the Court of Civil Appeals are reversed and the cause is remanded to the district court.

Opinion adopted by the Supreme Court.


author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    GUAJARDO v. STATE.
    No. 20905.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Rehearing Denied May 1, 1940.

      Jno. K. Weber and C. O. Wolfe, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was charged by complaint and information with committing an aggravated assault by means of driving an automobile in and upon the person of one Bessie Heiner, and causing to her injuries less than' death, and was by the jury found guilty and assessed a fine of $100 and imprisonment in the county jail for one month.

The facts herein, from the State’s standpoint, show that William Coultcrman owned a pick-up truck, and there were riding therein seven people, among others the complaining witness, Bessie Heiner, her brother William and her mother, Mrs. Myrtle Heiner, her aunt Mrs. Coleman, and Arthur Heiner, her cousin, the uncle William Coulterman driving the truck. Bessie Heiner and her aunt were sitting on the floor of the pick-up truck with their feet hanging out the back end. The appellant and his daughter, with a baby in her arms, were riding in a Chevrolet car, coming up behind this pick-up truck. According to the State’s witnesses this car of appellant’s was zigzagging or moving from side to side of the road at a speed of probably fifty miles per hour, and while so moving, appellant driving, it struck the back of this pick-up truck, which was moving at the rate of about twenty-five miles per hour, and crushed and mangled the foot and leg of Bessie Heiner, to such an extent that she was knocked out of the truck and was rendered unconscious, and was taken to a hospital where she remained for some two weeks. At the time of the accident appellant remained at the wheel of his car, and again, for some unexplained reason, he propelled his car against the pick-up truck and struck it a second time.

The appellant’s version of the accident was that he was driving down this public highway at a moderate rate of speed, and that he came up close behind the pickup truck, and was waiting to pass around it when he saw another car approaching from the opposite direction. That suddenly, without any warning signal of any kind, the person driving the pick-up started to stop, and appellant could not bring his car to a stop before he struck the pick-up truck, and thus injured the girl, Bessie Heiner. That he turned to the left as far as possible, but could not avoid striking the girl and the truck on its left-hand side. That he was driving in his usual and accustomed manner, and in order to avoid injury to his daughter, the child and himself he was compelled to strike the truck, and as a consequence the injury to the girl-, followed.

Appellant’s bill of exceptions No. 1 complains of the fact that while the jury was. deliberating on their verdict, and evidently after they had arrived at an agreement,, they called the deputy sheriff in charge of' them and asked him as to the form in; which they should render and return their verdict. This verbal statement was by the-officer reported to the judge trying the-case, and he instructed the officer to say to the foreman of the jury that the charge of the court contained a blank form for-their verdict, which the jury might fill out and have the same signed by their foreman,, such blank form being as follows:

“Verdict of the Jury.
“We, the jury, find the defendant, Tom-Guajardo-.
“Foreman of the Jury.”"

This is complained of as being a verbal communication to the jury, and as an additional instruction to them not in writing, out of the presence of the defendant, and without his knowledge, or the knowledge or consent of his counsel. We do not think the statement thus made relative to where the jury could find a form for their verdict could be termed an additional instruction. It will be noted that the form thus referred to was not suggestive in any way as to what the • verdict should be. Such form could be used either for a verdict of guilty or not guilty, just as the jury should determine, and we think the statement thus made to the foreman of the jury amounted to no more than calling their attention to the charge, and directing them to read the same. It is to be observed that this cause was a misdemeanor, and would probably be governed by Art. 679, C.C.P., which reads as follows: “In felony but not in misdemeanor cases, the defendant shall be present in the court when any such proceeding is had as mentioned in the three preceding articles, and his counsel shall also be called.” The three preceding articles referred to in the above quoted Art. 679 are concerned with the communications of the jury with the trial court (Art. 676), their asking for further instructions from the court (Art. 677), and a re-examination of a witness if the jury so desired (Art. 678). We see no error reflected in this bill.

Bill of ‘exceptions No. 4 presents the following proposition: It had been herein testified by appellant that while he was driving at a reasonable rate of speed down the public highway he came up behind the pick-up truck, and just as he was attempting to pass around such truck another automobile coming towards appellant was meeting such truck, and that the driver of the truck, without giving any visible or audible sign of his intention, began to slow down the speed of this truck so abruptly that appellant, in order to save himself, his daughter and the child in appellant’s car from injury and the probable loss of life, had to strike the truck and injure the girl Bessie Heiner in thus protecting the persons in appellant’s car, and therefore such action upon his part was in defense of the safety and lives of such persons, and would amount in law to self-defense. This bill contains an exception to the trial court’s refusal to thus treat such actions as thus defensive in the charge given to the jury. It is to be observed, however, that the court did charge the jury, in substance, that if the driver of the pick-up truck did stop or attempt to stop his truck while immediately in front of appellant’s car without first seeing if there was sufficient space for such movement to be made in safety, etc., and without giving a visible or audible signal of such driver’s intention to thus stop his vehicle, and if such actions on the part of the truck driver were the sole cause of such collision and the injuries to Bessie Heiner, or if they had a reasonable doubt thereof, to acquit the defendant. It will be noticed that the trial court gave approximately that which was requested by appellant, with the exception of his idea of self-defense and defense of another in that appellant contended that he had the right, if such was necessary, to save himself and daughter from injury, and when he found himself in such a condition he would have the right to strike the truck, and incidentally to injure the girl, such act being in his necessary self-defense or in the defense of another.

It will be remembered that the gist of this offense is the negligence of appellant who was charged with thus operating his automobile. Such negligence is that which is defined in the chapter on negligent- homicide. See Art. 1149, P.C. The chapter on negligent homicide requires that degree of care and caution as a man of ordinary prudence would use under like circumstances. Art. 1233, P.C. We are not familiar with the doctrine advanced by appellant that he could by his negligent acts find himself in such a position of danger that he would be justified under the law in defending himself even to the point of injuring or taking the life of an innocent 'person whose actions were in nowise to blame for appellant’s perilous position. The appellant presents to us a proposition wherein he seeks to apply the doctrine of self-defense against himself. He can not take advantage of his own negligence and unlawful act to justify his actions while performing such act. See Menefee v. State, 129 Texas Cr.R. 375, 87 S.W.2d 478. We think the court’s charge fairly covers his offered defense. This bill is overruled.

We also note that the court charged on unavoidable accident. We doubt whether the facts entitled him to such a charge. See Menefee v. State, supra.

Appellant’s bill of exceptions No. 5 amounts in effect to a request to the trial court to charge the jury that if Bessie Heiner, the injured party, was sitting on the floor of the truck with her legs hanging out of the back, and that such act of hers was negligence and the sole cause of the accident, then the jury should acquit appellant. This amounts in effect to a charge relative to contributory rjegligence upon the, part of the injured person, and if such was believed by the jury, then a verdict of acquittal should follow. This doctrine does not apply to an offense as denounced by Art. 1149, P.C. We have heretofore held in Vasquez v. State, 121 Tex.Cr.R. 478, 52 S.W.2d 1056, 1057, as follows:

“The contributory negligence of the person killed does not constitute a defense to a prosecution, for negligent homicide. We quote from Ruling Case Law, vol. 2, p. 1212, as follows: ‘The rules of law concerning contributory negligence as a defense in civil actions for damages for personal injuries have no application to homicide cases for criminal negligence in operating an automobile. The decedent’s behavior is admissible in evidence, and may have a material bearing upon the question of the defendant’s guilt, but if the culpable negligence of the latter is found to be the cause of the death, he is criminally responsible whether the decedent’s failure to use due care contributed to the injury or not.’
“In Corpus Juris, vol. 29, p. 1155, the rule is stated as follows: ‘The contributory negligence of the person killed, although it may be a defense to an action for a private injury resulting from homicide, does not constitute a defense to a prosecution for homicide, nor is it.any answer that the criminal negligence of others than defendant contributed to the death. However, decedent’s conduct may show that defendant’s act was not the cause or was not, under the circumstances, negligence.’ ”

Bill of exceptions No. 6 is concerned with an exception to the court’s failure to charge relative to the negligent acts of one Cunningham who was driving the car said to be approaching and meeting the pick-up truck. In the first place, we do not think the proffered charge was called for by the evidence, and our ruling relative to bill No. 5 would also apply thereto. The bill is overruled.

Bill of exceptions No. 7 is based upon the failure of the court to charge the jury relative to the negligence of the driver of the truck in which the injured girl was riding. We think such matters were fully covered by the court in its charge as referred to in our discussion of bill No. 4.

We do not think any error is shown in bill No. 8, nor in bill No. 9, but on account of the length of this opinion we pretermit any discussion thereof.

We think the law of negligence as set forth in Art. 1233, P.C., is the law of criminal negligence in offenses of this character, and we have heretofore held such in Young v. State, 120 Tex.Cr.R. 39, 47 S.W.2d 320, 321, as follows: “We take it there can be no serious contention but that the Legislature intended its language as set out in said article 1233 [P.C.] to be taken as a definition of negligence applicable in prosecutions under the terms of said chapter,, and hence also in prosecutions under said article 1149, supra [P.C.]. If this be true, then said article 1233 does define negligence, and is the complement of said article 1149.”

It is noted herein that the negligence contemplated in a criminal action such as this is governed by statute, and is-only a failure to exercise ordinary care as defined in Art. 1233, P.C.

We have examined all the remaining bills, and they are overruled.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that we misapprehend the complaint in bill of exception number one as. shown by his “assignment of error No. 1.” Said assignment is much more to the point than the bill. This court is controlled by the bill and does not look to assignments of error which are required in civil cases.

.The bill reflects that the jury sent word to the trial judge by the officer asking about the form of the verdict. The officer found the judge in his office and not in the court room, and delivered the message. The judge directed the officer to tell the jury to refer to the charge which they had in which he had indicated the form of verdict to which no objection had been interposed when the charge was delivered to the jury. The officer took the judge’s message to the jury. The record reflects affirmatively that what has been here stated is all that happened. Appellant contends that the jury should have been brought into open court and there communicated , their request to the judge as required by Arts. 21, 676 and 677, C.C.P., and that because this was not done the judgment herein should be reversed. Had the jury been brought into court and asked the court for the information requested the point now urged would have been avoided, but we do not believe a reversal is demanded under the circumstances affirmatively shown. We are in agreement with appellant that if the trial judge had given the jury any additional instructions in the message sent them from his office it would require a reversal under many authorities, but this did not occur. The same principle is involved as where something occurs in the trial of a felony case in the absence of the jury. See Speegle v. State, 102 Tex.Cr.R. 498, 278 S.W. 437; Powers v. State, 23 Tex.Cr.R. 42, 5 S.W. 153; Cartwright v. State, 96 Tex.Cr.R. 230, 259 S.W. 1085. It being affirmatively shown that no injury could .have resulted to appellant from the incident complained of it furnishes no ground for reversal.

We have carefully examined other bills of exception referred to in appellant’s motion and urged as presenting reversible error, and have considered them, in connection with the facts developed, and -the court’s charge. We are not impressed with appellant’s contention that such bills present error upon which a reversal should be predicated, nor do we think it necessary to discuss them in detail.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge.

text:
    HUNTER v. STATE.
    No. 20958.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    Old & Lilienstern, of Mt. Pleasant, for appellant.
    Lloyd W. Davidson, . State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was tried upon an indictment in Titus County alleging that on the 5th day of January, 1939, he operated a motor vehicle on State Highway No. 11 in the southeast corner of Titus County; that he was the' driver of the car and in control of it; and while so driving, did strike Don Blevins and inflict injury and that he did “unlawfully fail to stop * * * and there unlawfully fail to render all. necessary assistance to the said Don Blevins, ■ etc.” He was found guilty upon this charge and assessed a penalty of five years in the penitentiary.

By a bill of exception complaint is made of the failure of the court to give an instructed verdict finding the appellant not guilty on the ground that there was no evidence showing that he was the operator of the car.. The proof is that he and his father drove up tp the Thigpen drink place near the town of Cason together and both got out of the car, but there is no showing that the appellant was the one driving it at that particular time. It is in evidence that the appellant’s father had no driver’s license. Several of his neigliors in Van Zandt County, where he lived, testified that they had never seen him drive an automobile.

Appellant did not testify and the record discloses that his father was at. home ill and unable to attend the trial. The State Contested the motion for a continuance on account of the father’s absence and the same was overruled. We believe it necessary to prove that appellant was either driving the car or that he was in control of it. If the father drove the car, it may be permissible to show that appellant was the owner and a passenger with him, but this the evidence does not disclose. It was incumbent upon the State to show either that the appellant was driving the car or that he was so acting as to be a principal with the party who did.

By Bill of Exception No. 3 complaint is made of the following statements by the District Attorney in his argument to the jury: “He left a poor wife as widow and a little babv. Men couldn’t write all the pain that will result from this offense.”

Again, by Bill of Exception No. 5, complaint is made of the following argument: “When a man can run up and down the roads of this State and destroy property and take human lives, he ought to be in the pen,”

By Bill of Exception No. 6 complaint is made of the following argument of the District Attorney: “Will your wives be protected against the fiendish rapist if you didn’t convict on circumstantial evidence? He killed Don Blevins.”

We view each of the foregoing statements, under the facts of the instant case, to be improper. The appellant was not charged with murder but with the offense of failing to stop and render aid to one that may be presumed to have been struck with his automobile. There is no evidence properly admitted that the appellant was running up and down the roads of the state destroying property and taking human lives. This statement is beyond the record so far as the instant case is concerned, and as applied to the general public and the too frequent occurrences of such things, is inflammatory. The appellant may not be tried for crimes which others have committed, and invoking the e.vidence of other cases for the purpose of securing a conviction or the enhanced penalty in the appellant’s case is improper. The district attorney went beyond the proper bounds of argument.

And more serious still is that statement concerning the protection of the wives against the fiendish rapist, followed by the direct statement of the’prosecuting attorney that appellant killed Don Blevins. The District Attorney was not a witness in the case and had no right to make himself such in his argument. The recent case of Burns v. State, Tex.Cr.App., 135 S.W.2d 109, will be very enlightening on the subject and properly sets out the rule. See, also, Stalling v. State, 90 Tex.Cr.R. 310, 234 S.W. 914,916.

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


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    WEST v. STATE.
    No. 20912.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied April 24, 1940.

      Jimmie Cunningham, of Graham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is negligent homicide in the second degree; the punishment assessed is a fine of $100.

Appellant was charged by complaint and information with having negligently and carelessly caused the death of Clifford Barnett by the operation of a motor vehicle upon a public highway, said vehicle not being provided with adequate brakes in good working order.

This prosecution arose under and by virtue of Art. 1239, P.C., which provides: “Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.”

Art. 1240, P.C., reads in part:

“Within the meaning of an ‘unlawful act’ as used -in this chapter are included:
“(1) Such acts as by the penal law are called misdemeanors.”

Art. 799, P.C., makes it a misdemeanor for any person to operate a motor vehicle upon a public highway, which motor vehicle is not provided with adequate brakes kept in good working order.

Art. 827a, Vernon’s Ann. P.C. Sec. 9, provides among other things that: “ * * * Any motor vehicle or combination of motor vehicles, trailer, or semi-trailer or other vehicle, shall be equipped with brakes upon one or more of such vehicles adequate to stop such combination of vehicles in dry weather upon a reasonably level surface within a distance of forty-five (45) feet from the' spot where such brakes are first applied when such vehicle or combination of vehicles are traveling at a rate of speed of twenty (20) miles per hour.”

We deem the complaint and information sufficient to charge the offense.

Appellant challenges the sufficiency of the evidence to warrant and sustain his conviction. The testimony adduced by the state, briefly stated, shows that about 7 A. M. on October 18, 1939, the appellant was driving a truck North on Texas Street in the City of Graham at a rate of speed estimated at about 40 miles per hour. He was accompanied by E. H. Griffin. At the same time J. É. McEntire, together with Wilburn and Clifford Barnett (the deceased) were in a truck slowly traveling west on Blewett Street. When McEntire reached a point about the center of the intersection of Texas' and Blewett Streets, he realized that West would hit his truck and pulled his steering wheel sharply to the right. Appellant’s truck struck the rear left fender of McEntire’s truck and turned it over. The occupants of McEntire’s truck were throyra out and Clifford Barnett received injuries in the collision which caused his death. McEntire, immediately after the accident, asked appellant what was the matter with him and appellant replied that his brakes would not work; that the sun was shining in his eyes and he -could not see the McEntire truck by reason of a house on the southeast corner of the intersection of the streets. There was also testimony by an officer that he had theretofore reminded appellant on numerous occasions that his brakes were inadequate. Some few days after the unfortunate occurrence, officers made a test of the brakes on appellant’s truck with his consent and. assistance. At the time of the test appellant stated to the officers that his brakes were in the same condition as at the time the accident occurred. The test showed that from the point where appellant first applied the brakes to the point where he finally stopped was a distance of 64 feet. The ground was level where the test was made. Appellant did not testify but introduced some witnesses who testified that McEntire-’s truck was on the wrong side of the road at the time of the accident, and was travelling at a speed of about 35 miles per hour. We deem the evidence sufficient to support the jury’s conclusion of appellant’s guilt.

Appellant addressed a number of objections to the court’s charge. In paragraph 4 of his charge, the, court defined what constituted adequate brakes as the same is defined in Art. 827a/Vernon’s Ann. P.C., supra. Appellant objected thereto on the ground that there was no evidence that the weather was dry on the day in question. We do not think there was any error in the court’s instruction, since the court literally followed the definition as set forth in the statute. Moreover, this being a misdemeanor, if appellant was dissatisfied with the definition he was required to go further and present a correct special instruction relative thereto and request that, it be submitted. What we have said applies with equal force to every objection to the court’s charge in which appellant failed to submit a special requested instruction. See Schweinle v. State, 109 Tex.Cr.R. 411, 4 S.W.2d 976; Cassels v. State, 108 Tex.Cr.R. 477, 1 S.W.2d 644; 4 Tex.Juris, p. 74, Sec. 47, and p. 101, Sec. 66, and the many authorities there collated.

Appellant also complains because the court declined to submit his special requested instruction to the effect that if the homicide was due to an accident, to acquit him. We do not think appellant was entitled to such an instruction under the facts of this case. There might be instances when a defendant would be entitled to an instruction on unavoidable accident, but appellant made no such request- in this case. All other objections to the court’s charge have been carefully considered by us in connection with the charge given by ,the court. We deem the charge given a pertinent application of the law to the facts, and do not think it is subject to the criticisms addressed thereto.

All other matters compláined of by appellant have been carefully considered by us and- are deemed to be without merit. No error of a reversible nature appearing in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

In his motion for rehearing appellant contends that the evidence fails to show that he was driving the truck that struck Mr. McEntire’s car. We are unable to agree with this contention. In his testimony Mr. McEntire said that he was driving slowly and was in the middle of the intersection when he saw that West (appellant) was going to hit him; that'he estimated West’s speed at forty miles per hour; that when he got out óf his truck he asked West what was the matter and West replied that his brakes would not hold, and also said that the sun was in his eyes, and that he could not see on account of a house on the south-east corner of the intersection. We think this evidence sufficient to show that appellant was driving the car.

We have carefully re-examined the record in the light of the motion for rehearing, and are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled. ■

PER CURIAM.

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


author: GRAVES, Judge.

text:
    BISHOP v. STATE.
    No. 21056.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    John C. Ratliff, of Big Spring, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of theft of property over the value of $50, and under the further allegation and proof of the commission of two other felonies less than capital he was sentenced to the penitentiary for life.

There are no bills of exceptions in the record. The statement of facts shows that he was convicted of theft of property over the value of $50 in cause No. 8560, in the district court of Eastland County, Texas, on a plea of guilty on June 13, 1931. That again in cause No. 3024, in the district court of Stephens County, Texas, on April 11, 1934, he was convicted on his plea of guilty to felony theft and sentenced to serve a term of seven years in the penitentiary. Upon a conviction herein by' the jury, he was sentenced to a life term in the penitentiary as an habitual criminal.

The case being one of circumstantial evidence, we note the court’s charge thereon was full and complete. Appellant was found in possession of the stolen copper wire, with certain tools showing both equipment and ability to possess himself of such wire, which was being used for transmission of electric power. It was also shown that an effort had been made to conceal such wire by burning the insulation off same.

We are of the opinion that the facts proven were sufficient to support the verdict of guilt upon the part of the jury.

The judgment is affirmed.


author: GRAVES, Judge. KRUEGER, Judge.

text:
    WOMACK v. STATE.
    No. 20926.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied April 17, 1940.

      Wiley B. Thomas, of Groveton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. .
   GRAVES, Judge.

Appellant was convicted of forgery, and sentenced to a term of five years in the penitentiary.

His motion for a new trial was overruled on October 5, 1939, and his notice of appeal was entered on said date.

There are no bills of exception in the record, and the statement of facts was filed in the lower court on January 12, 1940, ninety-nine days after the giving of the notice of appeal. This filing was too late, under numerous decisions of this court, to allow us to consider the same. - See Art. 760, C.C.P., Vernon’s Ann. C.C.P. art. 760; Williams v. State, 133 Tex.Cr.R. 443, 112 S.W.2d 184.

The indictment appears to be in proper form, and all proceedings regular thereunder. Without a statement of facts we are unable to appraise the matters complained of in appellant’s brief.

The judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for a rehearing appellant asserts that he was, through no fault on his part, deprived of the filing of a statement of facts within the time prescribed by law. He sets forth in his motion that a day or two before the time allowed by law for filing a statement of facts, he made satisfactory arrangements with the court reporter to deliver to him (appellant) a narrative statement of facts. That the court reporter agreed to take the statement of facts to Huntsville, have the District Attorney and the judge approve the same, sign it and he (the court reporter) would file it with the clerk the next day, which was the last day on which it could be filed. That the court reporter did not file it with the clerk until nine days later. That he (appellant) did not know of the delayed filing until this court affirmed the judgment of conviction. We do not think that the excuse set forth in the motion, supported by affidavits, in not having the statement of facts filed in time, is sufficient to relieve appellant from a want of due diligence. When appellant selected the court reporter as his agent to perform such services for him, then appellant is bound by the acts of his agent. The negligence of his agent is chargeable to him under the rule announced by this court in the case of Riley v. State, 95 Tex.Cr.R. 539, 255 S.W. 179; Byrd v. State, 113 Tex.Cr.R. 5, 18 S.W.2d 624.

We regret that appellant’s statement of facts. was not filed in time, but this court can have but one rule and apply it in all instances under the same or similar circumstances.

The motion for rehearing is overruled.

PER CURIAM.

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


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

text:
    MANGUM v. STATE.
    No. 20545.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1939.
    Rehearing Denied April 17, 1940.

      Maury Hughes (of Hughes & Monroe) and Joe Bailey Morris, both of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The. appellant was convicted of murder with malice, as evidenced by the killing of L. M. Smith, and was assessed a penalty of twenty years therefor.

It appears that appellant, a minister, and also a carpenter by trade, had been divorced from his wife; and their children, one married girl and two young boys, were living with the wife. Mr. Smith had been coming to -the divorced wife’s home, after the divorce, and had at times taken her and her children to church. On the night of the fatal difficulty Mr. Smith and the boys, the daughter and her husband, and appellant’s former wife, had been to church, and upon their return to the home they found appellant in or near the driveway thereof. Appellant told his boys to bring him certain of his carpenter tools from the premises, and they proceeded to do so. In the meantime Mr. Smith had gotten out of the automobile, as had Mrs. Mangum also, at which time it appears from the testimony that appellant produced a pistol in his- possession and Mr. Smith was shot twice therewith. The deceased seemed to have gotten the pistol away from appellant and gave it to one of the little boys, who laid it down in the driveway, and Mr. Smith went to and sat down on the gallery of the home, evidently in great pain, at which time appellant made an attack upon his former wife, and had her down on the ground beating her when the son-in-law struck appellant over the head with a brick, and with the help of others held appellant until the arrival of the officers. Mr. Smith’s wounds were serious, and from them he eventually died, hence the murder charge.

Appellant’s bill of exceptions No. 1 is voluminous, and occupies many pages of the record. The gist thereof, however, is a complaint that a prejudiced juror had gotten on the jury by reason of certain misstatements attributed to such juror on his voir dire examination, and that appellant, through no fault of his own, nor lack of diligence upon his part, had not had his case presented to a fair and impartial jury, it being claimed that this juror was prejudiced against the appellant, and had made statements to others prior to being accepted on the jury, evidencing such prejudice against appellant. We find the matter presented from both sides to the trial court by witnesses and affidavits upon the hearing of the motion for a new trial, and the facts relative to the mentioned juror and his statements were gone into fully before that court, who decided the matter, upon contradictory testimony, against the appellant’s contention, and we find ourselves of the same opinion as that of the .trial court. It was his judgment that the juror was fair and impartial, after going fully into the matter, and we do not feel called upon to disturb his ruling thereon.

Bill of exceptions No. 2 is concerned with a series of questions propounded to the witness Denver Seale, an investigator for the district attorney’s office, who testified relative to a dying statement made to him by Mr. Smith. It appears that Mr. Seale had a conversation with the deceased relative to the occurrence in which the deceased had received the wounds from which he later died, and that Mr. Seale then wrote his version of what the deceased said relative thereto, and brought the written instrument to the deceased, read it over to him in the presence of a witness, and the deceased signed the same. The questions asked Mr. Seale were, in substance: “Why didn’t a lawyer from the district attorney’s office go out to take this statement ? * * * Were there any stenographers connected with the district attorney’s office to whom the witness had access, * * * and why didn’t the witness take a stenographer out there to take down verbatim this dying statement?” Objection was made to the answering of these questions, and same was by the trial court sustained. We think the trial court’s ruling thereon was correct.

Bill of exceptions No. 3 relates to the trial court’s ruling wherein he sustained an objection to the appellant being allowed to testify that “his boys had asked him to come back,” evidently meaning that they had asked him to return to their home where they were living with their mother and sister. The testimony does not seem to evidence any materiality, especially in the manner in which it was offered. It is also to be noted that the jury actually heard the testimony, but upon objection being made the court sustained the obj ection; however same was not excluded from the jury’s consideration by the court, and no request made relative to its exclusion. We see no error reflected herein.

Bill of exceptions No. 4 relates to the trial court excluding from the consideration of the jury certain reasons why the appellant did not'go back to the home of his former-wife for the last few days'preceding the night of the shooting. The witness had been permitted to give the substance of a conversation claimed to have been had. with the deceased a short time prior to the fatal difficulty in which he contended that the deceased had told appellant not to come over to his former wife’s home; that he had also testified that he had not gone back over there prior to the night of the killing, and then when asked why the witness did not go over to such home the State objected to an answer thereto because the-answer would be but a conclusion and an opinion of the witness and self-serving. We are not impressed with the materiality of this matter. We think the trial court was correct in sustaining the objection.

Bill of exceptions No. 5 is based upon the fact that while appellant was on the witness stand, upon cross-examination, he was asked if he did not have a conversation with his former wife, after she’ had started going with the deceased, in which he stated to her that he, appellant, was glad she was going with Mr. Smith, and that he was' a good Christian -character. This statement the appellant denied having made. There-afterwards the State placed Mrs. Ethel Mangum on the stand, and, over appellant’s objection, she was allowed to testify that she did have such a conversation with appellant, and that he did make such a statement relative to the character of Mr. Smith, and to their association together. We are at a loss to see where there could have been any injury to the appellant by reason of this complained of error. If it was the State’s theory that this killing had occurred on account of jealousy upon the part of the appellant toward the deceased because the deceased'was keeping company with Mrs. Mangum, then such testimony would have some tendency to refute- this theory of jealousy upon appellant’s part, and the proof of the statement purportedly made to Mrs. Mangum would not only not injure appellant but would have been helpful to him; it would have seemed to have evidenced a lack of. jealousy. If offered by appellant, such a statement might have been deemed self-serving; when offered by the State, we do not think its tendency could have been to injure him. We are also not impressed with the fact that such a statement is a collateral matter., It occurs to us that any statement relative to the deceased, made by the appellant, would bear directly upon the issue herein.

Bill of exceptions No. 6 complains of certain arguments before the jury in which the State’s attorney referred to the appellant as a “guilty murderer under the evidence in this case.” This bill also contains a further exception to other remarks of the same State’s attorney which were objected to, and which objection was sustained and the jury was instructed to disregard the latter remarks, although exception was reserved to the making of the last remarks. It is therefore necessary to treat each set of remarks separately, and this bill as presented becomes multifarious. Regardless thereof, however, we think the matter free from doubt, and we will consider the same. In the remarks just above cited, we find the State’s attorney drawing his deductions from the admitted testimony, with no request from appellant’s attorney for an instruction to the jury to disregard the statement complained of. Mr. Branch’s Penal Code, p. 204, Sec. 362, lays down the doctrine that: “Unless the remarks of State’s counsel are obviously of a nature to impair the rights of defendant or to improperly prejudice his case before the jury, such remarks, though improper, will not be considered for reversal unless a charge instructing the jury to disregard them was asked and refused and an exception reserved,” citing a long list of cases.

To the second series of remarks an instruction was given by the court directing the jury to disregard such remarks, although exception was reserved to the making of such remarks. Under the same 'Sec. 362, supra, it is said: “If improper remarks of counsel are by the court withdrawn and the jury instructed not to consider them, ordinarily the injury, if any, has been cured,” citing cases.

We do not think any of these remarks were so obviously injurious and prejudicial, or of such a grave character, as to evidence any injury to appellant’s defense. This bill is overruled.

Bill of exceptions No. 7 has as its basis the introduction of a statement made by the deceased, offered as a dying declaration. It appears from the court’s qualification thereto that upon objection of the appellant’s attorneys much of this statement was by the trial court deleted, and practically the only objection left that the court did not sustain was that a portion of such statement was a shorthand rendition of the facts. We are impressed with the same idea as was contained in appellant’s ob^ jections, and are of the opinion that the portion of such statement as was allowed to go before the jury was but a shorthand rendition of the facts that surrounded the killing, and we think, after laying a proper predicate for this statement, the State was well within its rights when it introduced the statement of Mr. Smith as to what took place at the time and scene where he lost his life.

Bill of exceptions No. 8 complains because of the trial court’s failure to give in charge to the jury appellant’s requested charge No. 10 relative to the law of threats as applied to self-defense. From a perusal of the trial court’s main charge we find that a correct charge on such threats was embodied therein in language heretofore approved by this court.

The remarks relative to bill No. 8, just above, are also applicable to bill of exceptions No. 9, which latter bill contains a request for the court to charge that an assault and battery which causes pain and bloodshed would be in law termed “adequate cause”. We think this matter was properly covered by the court’s main .charge. To the same effect as the above is appellant’s bill No. 10, and we overrule the same.

Bill of exceptions No. 11'is a complaint relative to the State’s attorney’s argument before the jury in which he stated, in substance, that the pistol which had been identified as the weapon with which Mr. Smith had been shot, had a hard trigger pull. It seems that the State’s attorney had such pistol in his hand while arguing before the jury relative to appellant’s testimony, and was demonstrating with it when he made such statement relative to the trigger pull thereof. It is to be noted that the court sustained an objection to the statement made by the State’s attorney, and no request was made by appellant’s attorney to have the jury instructed to disregard such remark. We overrule this bill.

Bill of exceptions No. 12 complains of the fact that after the appellant had offered testimony relative to his good reputation for truth and veracity, the State also offered testimony .relative to the appellant’s reputation as a peaceable law-abiding citizen. This was done, so the court’s qualification says, on account of the fact that appellant had filed at the proper time a request for a suspended sentence. Art. 778, C.C.P., provides, among other things, that: “The court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence * *

12 Tex.Jur., p. 749, says: “The reputation contemplated by the statute is the general reputation of the accused for being a peaceable and law-abiding citizen in the community in which he has lived,” citing Skelton v. State, 106 Tex.Cr.R. 90, 291 S.W. 238; Freddy v. State, 89 Tex.Cr.R. 53, 229 S.W. 533; Martoni v. State, 74 Tex.Cr.R. 90, 167 S.W. 249; Campbell v. State, 73 Tex.Cr.R. 198, 164 S.W. 850.

We see no error reflected in such bill.

We think this cause has been properly tried, and it is accordingly affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

Appellant urges in his motion for rehearing that a prejudiced juror sat in his trial, and that we erred in not sustaining complaint thereof brought forward in bill of exception No. 1.

Evidence upon the issue as to whether a juror was prejudiced may be presented on the hearing of the motion for new trial by affidavits, oral testimony or both; in the present instance both were resorted to. Before reverting to the evidence heard on the motion it will be well to state the principles controlling in such cases, and we quote from pages 288 and 289 of Branch’s Ann.Tex.P.C. on the subject, as follows:

“When it is sought to show on the hearing of the motion for new trial that a juror before the trial had expressed an opinion of defendant’s guilt or had made statements which showed a prejudice against defendant, the decision of the trial court on that issue will be sustained by the Appellate Court unless clearly wrong if the evidence bearing thereon was conflicting and was sufficient, if believed, to justify the action of the trial judge.
* * * * * *
“If there is testimony tending to -show that a juror before thé trial had made remarks indicating prejudice against the defendant or an opinion of defendant’s guilt and that this was unknown to defendant at the time the juror qualified and was accepted, but on the other hand * * * if the juror and others deny that the remarks were made, then it is a question for the trial judge to decide as to the fairness and impartiality of the juror, and unless it clearly appears that he has abused his discretion his finding on that issue will not be disturbed.”

Many cases are cited supporting the text.

It was alleged in the motion for new trial that the juror Oscar Dishman “had formed and expressed an opinion as to defendant’s guilt and that the said juror had discussed it many times with various people, including T. L. Ellis, R. R. (Bob) Ellis, Miss Mae Johnson, Mrs. Dishman and others.” To support the said averment appellant attached to his motion the affidavits of R. R. (Bob) Ellis and T. L. (Tom) Ellis. In the affidavit of Bob Ellis he states that on Sunday afternoon, January 29, 1939 — which was the day before the case was to be tried —witness in company with his brother (Tom Ellis) and the latter’s wife, went to the Dishman home to pay his aunt, Mrs. Dishman, and her husband a visit; that in addition to those already mentioned there were also present James Lewis, and Miss Johnson. The affidavit then recites that Mr. Dishman mentioned having gotten a summons for jury service for the next day, and then follows the relation of a conversation in which Dishman participated, the details of which it is not necessary to set out, but which, if true, showed Dishman to be a biased juror who had prejudged appellant’s case. The affidavit of Tom Ellis, which was in all material respects the same as Bob’s, was also attached to appellant’s motion.

The District Attorney answered appellant’s motion, traversing and denying that the juror Dishman had expressed any opinion as to appellant’s case indicating that he was an unfair juror. The State attached to its answer the affidavit of the juror in which he denied categorically every statement contained in the affidavits of the two Ellis affiants, and asserted that prior to being taken on the jury he knew nothing of the facts of appellant’s case, and had expressed no opinion as to his guilt or as to his case. He stated that on Sunday, January 29, 1939, Bob Ellis was at his (Dish-man’s) home for about ten minutes; that Bob was drinking “pretty heavily;” that Dishman remarked that he had a special venire card calling him for jury service the next day; that Bob asked what case it was on, to which Dishman replied that he did not know but it was in Judge King’s court; that Bob then said, “You are on Dee Mangum’s case,” and someone else present said, “No, that case is not coming up tomorrow; it has been .postponed.” The juror then says in his affidavit, “This (the foregoing) is a full and complete conversation that I had with Bob Ellis at any time prior to the rendition of the verdict in this case regarding the trial of Isaac D. Man-gum.” Immediately following is a specific denial of every statement contained in the Ellis affidavits indicating knowledge on the juror’s part of appellant’s case or bias or prejudice towards appellant. The juror further states in his affidavit 'that neither Tom Ellis nor Tom Ellis’ wife was in his house on Sunday, January 29', 1939, and that neither of them came there on said occasion with Bob Ellis. Dishman further affirmed that on February 12, 1939 — which was after the trial — he returned home from attending a funeral and at said time found ■Bob and Tom Ellis and the latter’s wife at his (Dishman’s) house; that Miss Mae Johnson was also there and that she and the two Ellis boys all expressed dissatisfaction with the verdict in appellant’s case; that on this occasion there was a general discussion of the facts in appellant’s case. Attached to the State's answer was the affidavit of Mrs. Dishman who denied therein the presence of Tom Ellis and his wife at her house on January 29, 1939, and denied the truth of the statements contained in the affidavits of Bob and Tom Ellis. • Also attached to the State’s answer was the affidavit of J. L. Hancock, who lived with the Dishmans. He affirmed that on January 29, 1939 only Bob Ellis was at the house and stayed only a short time; that Tom Ellis and his wife were not there on said date, but that about a week after Dishman had served on the jury the two Ellis boys and "their wives came to the Dishman home at which time witness heard them discussing appellant’s case. Also attached to" the State’s answer was the affidavit of James Lewis who lived at the Dishman home. He affirmed that he was at the house all day on January 29, 1939, and that only Bob Ellis came to the house that day and that the only thing Dishman said was that he had received a card to serve on the jury the next day; that Tom Ellis and his wife were not present; that about a week later and after the trial Bob and Tom .Ellis and the latter’s wife were at Dishman’s house, at which time there was some discussion of the verdict and the facts in appellant’s case. We take note of the fact that notwithstanding the contradictions regarding the statements in the affidavits of Tom and Bob Ellis, that no affidavit from Mrs. Tom Ellis appears in the record,. neither was she called as a witness on the hearing of the motion for new trial, although both Bob and Tom ■claimed that she was with them at Dish-man’s house on January 29th. Upon the hearing of the motion appellant called as a witness Miss Johnson. It developed that she had declined to give any written statement to either the State’s or appellant’s attorneys, but that when the representatives of the State sought an interview with her she telephoned Bob Ellis to be present. Miss Johnson testified substantially to the same facts contained in the affidavits of the two Ellis boys as to statements made by Dishman on January 29th, asserting that both Tom and Bob were present at the time. She also testified to various conversations between Mrs. and Mr. Dishman, and between the witness and Mr. Dishman in which Dishman is claimed by her to have made statements which, if true, would show him to have been an unfair juror. The 'State then introduced another affidavit of Mr. Dishman which was apparently secured after Miss Johnson had given her evidence, in which affidavit Dishman specifically and categorically . denied every statement claimed by Miss Johnson to have been made by him which would have in any way impugned his fairness as a juror.

Appellant makes much of the fact that the juror Dishman was not called in person to testify on the hearing of the motion. The trial court certifies that he considered all the affidavits appearing in the record, and in his qualification declines to certify as true a recital in the bill to the effect that Dishman was available as a witness, because, the court says, there was no evidence before him to that effect, and that to so certify it would be necessary for the court to assume that it was true, when it had not been made known to him in a legal way.

We are cited to Wilson v. State, 128 Tex.Cr.R. 175, 79 S.W.2d 852, as having some bearing on the fact that Mr. Dishman did not testify in person on the hearing of the motion. The case is not deemed to be in point. There the party who might have thrown some light on the controversy did not testify either personally or by affidavit.

The trial court and this court should always be vigilant to secure fairness and impartiality on the part of jurors, but the record before us presents a typical case where this court should move with extreme caution before holding that the trial court abused his discretion in declining to find that the juror was unfair and biased. A case could scarcely be presented where the issues were more clearly presented than in the one now before ,us. Certainly the trial judge was in a better position to determine that issue of fact than is this court, and we discover nothing in the record which challenges the correct exercise of the trial court’s judicial discretion. Certainly the evidence upon the question was conflicting, and the evidence on the State’s part was sufficient to support the trial court’s ruling. He evidently accepted the State’s evidence as true on the controverted issue. Making application of the controlling principles stated in the beginning of this opinion we find no just reason for disturbing the trial court’s judgment.

Appellant’s motion for rehearing is overruled.

On Motion for Rehearing.

BEAUCHAMP, Judge

(dissenting).

I cannot agree with my associates that this case should be affirmed and am constrained to express my reasons therefor.

We are here dealing with one of the fundamentals, — the right of trial by twelve jurors, impartial, worthy and qualified. Our system provides, as near as it is humanly possible, for the selection of' jurors satisfactory both to the State and to the defense. To inspire the greatest confidence in our citizenship in the fairness of our government requires a record devoid of any reasonable doubt. No greater contribution can be made than that which fosters such confidence and an assurance to all citizens that they and their descendants shall be thus treated if and when called to the bar of justice to answer any charge which may be made against them. Because of the precedent herein set and that justice may be done in this particular case, I have given to the motion before us my most earnest consideration in the light of the authorities which have been presented and which are available to us. ■

We must view the citizen at the bar selecting his jurors. This is done in the light of the information presented in the court room. The juror in question, O. L. Dishman, was accepted upon his voir dire examination without any intimation, so far as the record shows, that he ever knew or heard of or had any opinion regarding the case, and with full confidence that he would sit with eleven others who would have open minds to receive the evidence from-the witness box confronting the man accused and would consider it in the light „of the law given them in charge by the court, and that they would retire together as twelve men to review this evidence in an effort to discover the truth in all matters at issue. No citizen*of our country is called upon to render a higher service than that which he may render as a juror passing upon the property, liberty or life of the citizens of his own country. The reputation of a man for fairness as a juror is undoubtedly a cherished asset to any one privileged to perform that service.

Viewed from the standpoint of the appellant, would he have accepted this juror had all the controversy been placed before him, whether true or untrue? Would the court himself have sustained- a challenge to such a' juror in order that no question might arise as to the fairness of a trial with him as a member of the jury if each witness had testified before the juror was selected? Had all of the defendant’s challenges been exhausted, would the court have imposed this juror on appellant?

According to the affidavits filed in the casé, O. L. Dishman, a juror, had received a summons to a special venire on Monday. Within a day or two of that time, the fact was discussed in the presence of a youiig lady .boarding in the Dishman home and in the presence of two nephews of Mrs. Dish-man, who claimed to have been visitors there. Appellant’s guilt and his punishment were discussed pro and con. It was said that the juror had a stubborn view toward the appellant and at least some opinion as to the severity of the punishment which should be given him. The State controverted most of the facts set out in the appellant’s affidavit by affidavits of others, including that of the juror himself and of his wife, Mrs. Jennie Dishman. Miss Mae Johnson, the lady witness, declined to give her affidavit but came into court upon the motion for new trial and testified that on the morning after the homicide newspapers were read in the Dishman home and a discussion of the parties followed; that Mrs. Dishman knew the appellant and remarked that the picture did not look like Dee Man-gum; that they called him by his given name frequently. It developed that Mrs. Dishman had been acquainted with and had kept company with the appellant before she was married. This is not denied and it is not shown that appellant knew Dishman was her husband. At this time juror Dish-man made some derogatory remarks about the matter, including the assertion that Mangum had been going with his secretary and that had brought about the divorce by his wife. It was also stated that Mrs. Dish-man called her sister-in-law, who was related to the appellant, and discussed the matter with her. It further developed that Mrs. Dishman was a constant visitor in the court room during the trial; that her nephews, Bob and Tom Ellis, were frequently there; that Miss Johnson had attended some. Many of the important facts thus testified to by Miss Johnson were not controverted by the affidavit of Mrs. Dish-man or by that of her husband, whose conduct as a juror was being attacked.

It is important to note that while Miss Johnson testified personally on the motion for new trial, she had previously been visited by the prosecution, and it is presumed that they knew something of the testimony which she would give. During the recess in the hearing on the motion for a new trial and at the noon hour, a supplemental affidavit from Dishman was secured denying some of the facts to which Miss Johnson had testified in the forenoon. A summary of the evidence discloses without dispute that Mangum had been discussed in the Dishman home. Mrs. Dishman admits that in her affidavit. There is no denial that he was a distant relative by marriage and also related to her nephews, Tom and Bob Ellis. There is no evidence in the record that Dishman’s identity as the husband of a kinsman was known to the appellant at the time Dishman was selected as a juror.

The failure of Dishman to come into the court room and personally testify on the motion for new trial after his conduct as a juror had been so viciously attacked cannot be passed without notice, nor can the importance of his failure to do so be overlooked. It is quite true that there is no evidence of any misconduct of the jury nor of Dishman as a juror, but our Constitution, Section 10, Article 1, Bill of Rights, Vernon’s Ann.St., provides for a trial “by an impartial jury”. It is also prescribed that a jury in such cases as that before us shall consist of twelve men. Section 13, Article 5 of the Constitution. Even though Dishman had said nothing to his fellow jurors about his opinion in the case and so restrained himself as to vote as they voted in a perfectly mechanical way, which is certainly the most harmless position he could have taken, still the law had not been complied with. Cases should be tried according to law.

Debate on the subject of majority verdicts, plurality verdicts, and the number of jurors is a continuous one. Whether twelve jurors concurring is wise or not does not enter into the consideration of this case, but the theory of it is interesting. In 1682, Lord Summers wrote on the subject and his conclusion is corroborated by Lord Coke, wherein he recognized the significant fact that the purpose of the jury is to ascertain the truth. They referred to the recorded fact that the twelve major prophets of the Bible foretold the truth; that the twelve Apostles preached the truth; that representatives of the twelve tribes of Israel went to Canaan to investigate and discover the truth; and that the Holy City, New Jerusalem, was founded upon twelve stones of truth. If it were given to us to legislate, we could find no higher reasoning satisfying our minds than that which was acceptable to Lord Summers and to Lord Coke.

This court had before it a question in the case of Wilson v. State, 128 Tex.Cr.R. 175, 79 S.W.2d 852, wherein a bill of exception complained of the qualifications of a juror under facts much like those presented in this appeal. The juror drove a school bus and had discussed the nature of the homicide involved, as well as the parties, in the presence of the school children and the teacher riding in the bus. The county attorney learned that a motion for new trial was being prepared and anticipated the testimony of the teacher. Upon being informed of this fact the juror left the office of the county attorney and went to see the teacher. She declined to become involved in the matter. The only denial which the State had of the evidence given by the school children as to the conversation was by the juror himself. Because of the fact that the State did not bring the school teacher as a witness to testify in person, this court proceeded on the assumption that the juror could have secured her testimony to exonerate him, and looked upon the circumstances with disfavor, reversing the case. The action of the court' in doing so is, in our opinion, a very wise one, but the facts of this case are much stronger. It is shown without contradiction that the appellant and the offense with which he was charged had been discussed in the Dishman home in the presence of and by the juror, at least to some extent, and these facts were not known to the appellant at the time Dish-man was accepted on the jury. We cannot presume that the trial court found contrary to these undisputed facts. The least that can be said is that we have grave doubt as to the qualifications of the juror and respect the right of the defendant on trial to have true answers to his questions and to know what is in the mind of each and every venireman presented for service in his case.

In the face of these facts and viewing the opinion in the Wilson case, supra, with approval, I am driven to respectfully dissent from the majority opinion overruling the motion for rehearing, and believe that the importance of the question is such as to justify my action in filing this opinion.


text:
    DOBBS v. STATE.
    No. 21038.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    E. J. Conn, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for assault with -intent to murder; penalty assessed at confinement in the penitentiary for two years.

The indictment appears regular and properly presented. The evidence heard before the trial court is not brought forward for review. No complaints of the procedure have been presented by bills of exception.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    DOBBS v. STATE.
    No. 21039.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    E. J. Conn, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the' State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder with malice; the punishment, confinement in the penitentiary for two years.

The record is before us without a stater ment 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.


author: KRUEGER, Judge.

text:
    MONK v. STATE.
    No. 21042.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Aubrey Davee, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The appellant entered a plea of guilty to the offense charged in the indictment and waived a jury upon the trial of his case. The record is before us without a statement of facts or bills of exception. 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: BEAUCHAMP, Judge. HAWKINS, Presiding Judge.

text:
    STOVALL v. STATE.
    No. 21050.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Rehearing Denied May 22, 1940.
    Hardin, Hardin & Hardin and Fred W. Hofstetter, all of Edinburg, and R. H. Wilson, of Wharton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Wharton County for violating the motor truck statute; and his fine was assessed at $110.

The case originated in the Justice Court of Wharton County and the prosecution was under a general complaint, the material allegations of which are as follows:

“Before me, the undersigned authority, on this day personally appeared Larry Daniel, who, after being by me duly sworn, on oath deposes and says: that heretofore, to wit; On or about the 18 day of Dec. A. D., 1939, and before the making and filing of this complaint in the County of Wharton, and State of Texas, L. V. Stoval did then and there unlawfully operate a commercial motor vehicle, to wit: Truck, tractor and semi-trailer, upon the public highway, outside the city limits of an incorporated town dr city, to wit; U. S. Highway No. 96, in the County of Wharton, State of Texas, with a load on said vehicle in excess of seven thousand pounds net weight. Contrary to the Provisions of House Bill No. 336, Sec. 5, against the peace and dignity of the State.
“Larry Daniel, Complainant.”

In Leo W. Fortson v. State, Tex.Cr.App., 138 S.W.2d 822 which is a prosecution under Art. 827a, Vernon’s Ann. Penal Code, it was held that it was incumbent upon the State to allege and prove that the load was in excess of 7,000 pounds and that he did not come under any of the exceptions set out in Art. 827a, sec. 5, P.C. Before these facts may be proved they must be alleged. There is no allegation in the complaint above set out that the appellant did not come within the exceptions listed in the statute. There being no such allegation, the State would not be permitted to prove it.

The complaint is insufficient, because of which the case is reversed and the prosecution ordered dismissed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

The State presents a request for leave to file a delayed motion for rehearing based on the contention that we were in error in holding the complaint bad because it failed to negative certain exceptions. The request for leave to file this motion comes long after the time has expired in which motions for rehearing may ordinarily be filed but is predicated on the ground that the court has control over its judgments during the term at which rendered. We recognize the rule, but doubt the expediency of its application in the present instance. The mandate from this court has long since issued, and perhaps many complaints of like character have been disposed of under that opinion in this case. We therefore think it proper to deny the request for leave to file the motion. However, we wish it understood that such denial is not to be taken as in any way expressing an opinion on the merits of the State’s contention regarding the State’s pleadings.

The request- for leave to file the motion is denied.