author: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    Ex parte TRUELOCK.
    No. 20783.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Rehearing Denied May 22, 1940.

      George Kirkpatrick and James J. Shaw, both of Houston, and T. S. Christopher, of Fort Worth, for appellant.
    Gerald C. Mann, Atty. Gen., Benjamin Woodall, Asst. Atty. Gen., and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

A complaint was filed in the justice court of Montgomery County against the appellant, Harry Truelock, charging him with a violation of the provisions of Article 911b, Vernon’s Texas Civil Statutes 1936, Acts 1929, Chap. 314, p. 698, as amended by Acts of 1931, Chap. 277, p. 480, the penal provision being shown as Art. 1690b, Vernon’s Texas Ann.Pen.Code 1936.

The complaint alleges that on or about the 15th day of May, 1939, Harry Truelock was a person controlling and operating, and who caused to be operated, a motor-propelled vehicle for hire over State Highway No. 19, being Federal Highway No. 75; that on said date he was engaged in the transportation by motor vehicle of goods, wares and merchandise, shipped and consigned to Emsco Derrick & Equipment Company, from Houston, Texas, to Bavaird Supply Company, at Salem, Illinois, “without first having obtained from the Railroad Commission of Texas a certificate of pubic convenience and necessity pursuant to a finding to the effect that the public convenience and necessity requires such operation, contrary to the statute in such cases made and provided,” etc.

Appellant was arrested and brought before the justice court. He applied to the county judge of Montgomery County for a writ of habeas corpus in which he alleged that the act under which he was charged in the justice court was unconstitutional, null and void and repugnant to the Commerce Clause of the Federal Constitution (art. 1, § 8, cl. 3).

From an order of the county judge refusing to release him, the case is brought to this court on appeal.

The case has been thoroughly briefed and argued both by appellant’s counsel and by the Attorney General of the State. Many questions have been discussed and numerous authorities relied upon. We have carefully studied each and every question presented but believe that as to many of the questions we are not here called upon to decide them in order to make a proper disposition of this case. Neither do we think it proper for us to do so.

The power of Congress to regulate interstate commerce is supreme, and whenever any statute of a state is in conflict with the enactments of Congress, or whenever it seriously hampers the movement of interstate commerce even over the state public highways, all such state statutes must yield and be superseded by such congressional enactments.

It is an equally well-recognized proposition that whenever the Legislature or any regulatory body, acting for the state, passes a law or promulgates a rule which works an unreasonable discrimination against interstate commerce in favor of intrastate commerce that such a statute and such regulations are invalid.

We must know, in the consideration of this case, that these two well-recognized propositions'will be respected. In a general way and without the necessity at this time of noting' exceptions to the rule, the state has power to regulate intrastate commerce, when acting in a field where- Congress has not chosen to legislate, so long as there is no injustice or unreasonable discrimination in favor of intrastate commerce as against interstate commerce.

The difficulty in which we herein find ourselves is based on the phrase “a certificate of convenience and necessity,” and its obvious meaning as will be found by a full reading of the statutes of this State regulating the use of our State highways. Our statute provides, Art. 911b, Sec. 3, Vernon’s 1936 Texas Statutes, that: “No motor carrier shall, after this Act goes into effect, operate as a common carrier without first having obtained from the Commission, under the provisions of this Act, a certificate of public convenience and necessity pursuant to a finding to the effect that the public convenience and necessity require such operation. No motor carrier shall, after this Act goes into effect, operate as a contract carrier without first having obtained from-the Commission a permit so to do, which permit shall not be issued until the applicant shall have in all things complied with the requirements of this Act. (As amended Acts 1931, 42nd Leg., p. 480, ch. 277, § 3.)”

It is recognized by this court that a certificate embodying the fact that the Railroad Commission of this State has found it convenient and necessary for the moving of freight or passengers in interstate commerce through this State is a necessary preliminary finding before such freight or passengers can lawfully move over such State highways, can not be enforced on account of the fact that such a holding has been found by the United States Supreme Court to be an interference with interstate commerce, and on account of the fact that Congress has seen fit to legislate thereon in the Federal Motor Carrier Act of 1935, Acts 74th Congress, 49 U.S.C.A. § 302. We recognize the fact that our State Commission is powerless to refuse a permit to operate upon this State’s highways in the movement of interstate commerce on account of the fact tha.t such body does not think the convenience and necessity of the public demands such additional operation.

We are, however, here confronted with another and further proposition in that the above-quoted phrase “convenience and necessity” seems to be a misnomer in the event such be held to the restricted meaning above outlined. The statute itself seems to be authority for this statement. It will be seen by a perusal of Secs. 8 and 9 thereof that it is not only the duty of the State Commission to ascertain whether or not such freight or passengers shall move over the desired routes, but also, in the exercise of the powers granted or inherent in the State, whether or not such traffic would be hazardous or dangerous to the safety of life, limb or property of the public rightfully on said highway, or whether such highway construction would be capable of withstanding the added traffic thereon. It seems apparent that all three of these propositions enter into what is called a “certificate of convenience and necessity,” and when all such have been determined in favor of an application, then, and not until then, it becomes incumbent upon the State Commission to allow the privilege of utilization of public highways over certain pre-designated roads by certain vehicles, limited as is therein provided by law. The Supreme Court of the United States, in Sproles v. Binford, 286 U.S. 374, 389, 52 S.Ct. 581, 585, 76 L.Ed. 1167, page 1179, in speaking of a like statute to the one here under consideration, held as follows: “The objection to the prescribed limitation as repugnant to the commerce clause is also without merit. The court, in Morris v. Duby, supra, 274 U.S. [135] at page 143, 47 S.Ct. 548, 550, 71 L.Ed. 966 [971], answered a similar objection to the limitation of weight by the following statement, which is applicable here: ‘An examination of the acts of Congress discloses no provision, express or implied, by which there is withheld from the state its ordinary police power to conserve the highways in the interest of the public and to prescribe such reasonable regulations for their use as may be wise to prevent injury and damage to them. In the absence of national legislation especially covering the subject of interstate commerce, the state may rightfully prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens.’ In the instant case, there is no discrimination against interstate commerce and the regulations adopted by the state, assuming them to be otherwise valid, fall within the established principle that in matters admitting of diversity of treatment, according to the special requirements of local conditions, the states may act within their respective jurisdictions until Congress sees fit to act. Minnesota Rate Cases [Simpson v. Shepard] 230 U.S. 352, 399, 400, 33 S.Ct. 729, 57 L.Ed. 1511 [1541, 1542], 48 L.R.A.(N.S.) 1151, Ann.Cas.1916A, 18.”

Although the Sproles. case, supra, was decided in 1932 prior to the enactment of the Federal Motor Carrier Act, supra, nevertheless the said Federal Act did not attempt to take away from the State any of the above announced powers. In fact, we find that the same Supreme Court later said in the year 1939, in the case of McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 178, 83 L.Ed. 164, 165, in an opinion by the late Justice Butler, in discussing what was meant by the proviso “bona fide operation” in the Federal Motor Carrier Act, that same “suggests absence of evasion; excludes the idea that mere ability to serve as a common carrier is enough, includes actual rather than potential or simulated service, and in context implies recognition of the power of the State to withhold or.condition the use of its highways in the business of transportation for hire. Plainly the proviso does not extend to one operating as a common carrier on public highways of a State in defiance of its laws.”

We also find in the case of Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402, 1403, relative to the several states’ powers to tax, license and require liability bonds of common carriers using the highways of the State, the following quotation from the case in 286 U.S. 352, 52 S.Ct. 599, 76 L.Ed. 1155, 81 A.L.R. page 1410: “Requirements of this sort are clearly within the authority of the state which may demand compensation for the special facilities it has provided and regulate the use of its highways to promote the public safety. Reasonable regulations to that end are valid as to intrastate traffic, and, where there is no discrimination against the interstate commerce which may be affected, do not impose an unconstitutional burden upon that commerce. Motor vehicles may properly be treated as a special class, because their movement over the highways, as this Court has said, ‘is attended by constant and serious dangers to the public, and is also abnormally destructive to the ways themselves.’ Hendrick v. Maryland, 235 U.S. 610, 622, 35 S.Ct. 140, 142, 59 L.Ed. 385 [390]; Kane v. New Jersey, 242 U.S. 160, 167, 37 S.Ct. 30, 61 L.Ed. 222; Michigan Pub. Utilities Commission v. Duke [266 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105], supra; Interstate Busses Corp. v. Blodgett, 276 U.S. 245, 250, 251, 48 S.Ct. 230, 72 L.Ed. 551 [554]; Sprout v. South Bend, 48 S.Ct. 502, 277 U.S. 163, 169, 170, 72 L.Ed. 833 [836], 62 A.L.R. 45; Hodge Drive-It-Yourself Co. v. Cincinnati, 284 U.S. 335, 337, 52 S.Ct. 144, 76 L.Ed. 323 [326].”

From such quotation we draw the fair conclusion that the Federal Motor Carrier Act, 49 U.S.C.A. § 301 et seq., does not supersede the State statute in all the matters just above mentioned. We do recognize, however, that the State Commission lacks the power to determine whether there be either a convenience or necessity for further facilities in the movement of interstate commerce when taken in its restricted sense. That there is a misnomer contained in the phrase “convenience and necessity,” and that such is not constricted to the mere meaning of whether or not it is convenient or necessary that additional facilities be provided for the movement of freight, we think, is evidenced by the following excerpt from the State statute, Art. 911b, Sec. 9, as follows: “The Commission shall ascertain and determine if a particular highway or highways designated in an application for a certificate of public convenience and necessity are of such type or construction or in such state of repair, or subject to such use as to permit of the use sought to be made by the applicant, without unreasonable interference with the use of such highways by the general public for highway purposes. And if the Commission shall determine, after hearing, that the service rendered by existing transportation facilities or agencies is reasonably adequate, or that public convenience would not be promoted by granting of said application, and the operation of motor vehicles on the public highways therein designated, or that such highway or highways are not in such state of repair, or are already subject to such use as would not permit of the use sought to be made by the applicant without unreasonable interference with the use of such highways by the general public for highway purposes then in either or any of such events said application may be denied and said certificate refused, otherwise the application shall be granted and the certificate issued upon such terms and conditions as said Commission may impose and subject to such rules and regulations as it has or may thereafter prescribe.”

It is also provided that in forming its conclusions, orders, etc., the State Railroad Commission shall consult with the State Highway Commission on the condition of the highways involved, and the ability of the highways to carry the proposed additional traffic, etc. Sec. 4, art. 911b,

Section 22b of the above act, in its declaration of policy, only incidentally mentions the convenience and necessity of the general public, but is mainly interested in the safety of the public and permanency of the highways. We quote same: “Declaration of Policy. The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end that the highways may be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public. (As added Acts 1931, 42nd Leg., p. 480, ch. 277, § 21.)”

Prior to the passage of the Federal Motor Carrier Act, the Supreme Court of the United States held in the case of Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 184, 77 L.Ed. 288, 87 A.L.R. 721, that: “It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit.” Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596, and many other cases there cited.

We quote from Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294, 296, in which the State Supreme Court held the following: “The lawmaking body of this state may, if it considers it in the public interest, withhold altogether the use of public highways from the operation of trucks carrying freight for hire. The power to prohibit the use of the highways for such purposes necessarily includes the lesser power to place sttch restrictions and regulations upon the use thereof as may be deemed proper, even though the burdens imposed may be of such a nature as to prevent any profitable operation upon the part of those desiring to pursue such business.”

If we give the phrase “convenience and necessity”, as used in this' complaint, its unrestricted meaning, that is, not only the need for more freight or passenger transportation, but also the public safety feature, as well as the condition of the highways, not only as to construction and facilities, but also as to ability to accommodate such additional traffic,. — then it should be plain that such matters, excluding convenience and necessity, are a necessary and a committed function within the power and province of the State authority.

Nor have our State courts been recreant in their holdings relative to the provisions of this statute. In Railroad Commission v. Southwestern Greyhound Lines, Tex.Civ.App., 92 S.W.2d 296, 299, Justice Baugh said:

“On the other hand, in the field of motor carrier operation over the highways, the roadbed used is one owned, built, and maintained by the state from taxes exacted from its citizens. It was not constructed for the purpose of enabling individuals or corporations to conduct a business thereon for hire, either interstate or intrastate, for their own profit, but for the use and benefit of the public. No individual or corporation has any such interest in, or rights thereon, as entitle him to conduct a business for hire over such roads. Such use of the highways for such purpose is therefore only permissive, subject to regulation when granted, and may be denied or withdrawn, whenever it becomes destructive of the state’s property, or dangerous to the safety of the public in its use of the highways in the manner and for thé purposes for which such highways were constructed and are maintained by the state.
“Under these facts and circumstances, and the inherent differences of the subject-matter of regulation, there should be, and as we interpret the recent decisions of the Supreme Court of the United States, there has been, a clear differentiation between the authority of the state to regulate the use of its highways, even though such regulation interferes with interstate commerce carried over same, and the right of the state to interfere with such commerce carried over the railroads. The old rate cases, and other decisions' of the United States Supreme Court bearing upon state legislation and regulations affecting interstate commerce over the railroads are not, therefore, applicable to all phases of such commerce carried, by permission only, and not as a matter of right, over the state highways, which are the property of the state and not the property of the carriers. The necessity for such differentiation is, we think, manifest.”

Again he quotes from the United States Supreme Court opinion by Justice Brandéis in the case of Bradley v. Utilities Comm., 289 U.S. 92, 53 S.Ct. 577, 77 L.Ed. 1053, 85 A.L.R. 1131, decided in 1933, as follows: “But the Supreme Court, the same Justice writing, eight years later in the case of Bradley v. Public Utilities Comm., 289 U.S. 92, 93, 53 S.Ct. 577, 578, 77 L.Ed. 1053, 85 A.L.R. 1131, wherein the Public Utilities Commission of the state of Ohio had refused Bradley a permit to operate over a state highway interstate to Flint, Mich., on the ground that the ‘proposed service would create and maintain an excessive a-nd undue hazard to the safety and security of the travelling public, and the property upon such highway,’ upheld the power of the state to do so, and held: ‘The state may exclude from the public highways vehicles engaged exclusively in interstate commerce, if of a size deemed dangerous to the public safety, Morris v. Duby, 274 U.S. 135, 144, 47 S.Ct. 548, 71 L.Ed. 966 (971); Sproles v. Binford, 286 U.S. 374, 389, 390, 52 S.Ct. 581, 76 L.Ed. 1167, 1179, 1180. Safety may require that no additional vehicle be admitted to the highway. The Commerce Clause is not violated by denial of the certificate to the appellant, if upon adequate evidence denial is deemed necessary to promote the public safety. Compare Hammond v. Schappi Bus Line, 275 U.S. 164, 170, 171, 48 S.Ct. 66, 72 L.Ed. 218, (220, 221).’”

It was also held in the Bradley case, supra, that the State may require from interstate carriers the registration of the vehicle and an operator’s license; the appointment of an agent upon whom process may be served; may require the filing of contracts providing adequate insurance for payment of judgments recovered for injuries, etc.

While this Southwestern Greyhound Lines case, supra, was reversed by the Supreme Court of this State, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235, such reversal was predicated on other grounds than the one upon which it is herein used as authority. In said case Justice Baugh epitomizes what seems to our mind to be the logical conclusion in this matter as follows: “As above indicated, the Railroad Commission is without power to determine the need or convenience for interstate commerce. This is manifest for the reason that the need and convenience of the people of other states than Texas is involved in the determination of this question, a matter over which the Railroad Commission has no jurisdiction. But an examination of the state law discloses that these are not the only questions which the Railroad Commission must determine in granting or refusing such certificate. The term ‘certificate of public convenience and necessity’ should, not, we think, be given such a restricted meaning. It is but a license or permit, granting a privilege to the applicant to use the highways for the purposes proposed. It is but evidence of the state’s permission to the applicant to so use its highways. As a prerequisite to the granting of such permission, the statutes impose upon the 'commission the duty to determine not only (Vernon’s Ann.Civ.St. art. 911a, § 6, and article 911b, par. § 8) ‘the demand for, or need of additional service, if there exists a public necessity for such service,’ but to determine also, even if such public need and convenience exist (Vernon’s Ann.Civ.St. art. 911a, § 7, and article 911b, § 9), whether the highways over which commerce is sought to be carried, ‘are of such type of construction or in such state of repair, or subject to such use as to permit of the use sought to be made by the applicant.’ And if the commission find that ‘such highway or highways are not in such state of repair, or are already subject to such use as would not permit of the use sought to be made by the applicant without unreasonable interference with the use of such highway or highways by the general public for highway purposes, then in either or any such event such application may be denied and said certificate refused.”

In the case of Railroad Commission v. Fisher, 127 S.W.2d 925, 926, the Court of Civil Appeals at Waco, through Justice Alexander, refused an injunction to Fisher prohibiting the Commission from interfering with his interstate traffic by motor vehicles over the highways of this State, because: “Since appellee does not have a certificate of convenience and necessity from either the Interstate Commerce Commission or the Railroad Commission of Texas and was not engaged in the bona fide operation as such carrier prior to 1935, he does not now have a right to use the Texas highways for the transportation of freight for hire. Consequently, he is not entitled to an injunction restraining the officers of this state from arresting him and his employees for doing so.”

Again that court says in Smith v. Coleman, 127 S.W.2d 928, 932, through the late Justice George, that: “The Federal Motor Carrier Act operates to limit such provisions of the Texas Motor Carriers Law as confers upon the Railroad Commission the power to determine whether there exists a public convenience and necessity for the proposed service founded upon the adequacy of the existing transportation facilities, etc., to carriers of property moving intrastate. State ex rel. Board of Com’rs v. Martin, 210 Iowa 207, 230 N.W. 540; Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623, 38 A.L.R. 286; Bush & Sons Co. v. Maloy, 267 U.S. 317, 45 S.Ct. 326, 69 L.Ed. 627. But it does not deprive the Railroad Commission of its jurisdiction and power to determine whether the safety of the traveling public and the preservation of the state’s property in the highways will permit any additional burdens of commerce upon and over the highways irrespective of whether such .burdens result from interstate or intrastate commerce thereon. South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734; Id., 303 U.S. 625, 58 S.Ct. 510; Kelly v. State of Washington, 302 U.S. 1, pars. 5, 7 and 9, 58 S.Ct. 87, 82 L.Ed. 3; Thompson v. McDonald, 5 Cir., 95 F.2d 937; Winton v. Thompson, Tex.Civ.App., 123 S.W.2d 951.”

Our State Supreme Court in 1936, in the case of New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W.2d 282, 285, said: “The highways of the state are public property, and their use for purposes of gain may be regulated or prohibited by :the Legislature, as it sees fit. Ex parte Sterling, 122 Tex. 108; 53 S.W.(2d) 294; Robbins et al. v. Limestone County et al., 114 Tex. 345, 268 S.W. 915; Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.(2d) 505; Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 186, 77 L.Ed. 288, 87 A.L.R 721. The power of the state to regulate traffic over public highways is well Settled. This power includes the right to permit or prohibit motor vehicles, operated for compensation or hire, to use its public highways under such rules and regulations as the Legislature may see fit to prescribe; and the Railroad Commission,’ or any other tribunal, may be authorized to carry out the details of such rules.”

This certificate of convenience and necessity, if granted, operates as a permit to thus use the highways designated therein,, and such certificate is in itself a permit, and such words are used interchangeably. See Sections 11, 12, 13 and 13a of Art. 911b, supra. If this be granted, then there is naught shown in this statement of facts that relator has ever applied for either a certificate or a permit of any kind to either the State Commission or the Interstate Commerce Commission. Instead we may reason, in the absence of such showing, that he is running in open defiance of any and all regulatory matters relative to-traffic on the highway, and without having applied to the proper State authorities for a certificate (or permit) that would au-. thorize him to operate over the State roads legally as a common carrier.

It is also observed,, however, that in consonance with the above-quoted holdings, in 'the event of such an application to be made by him to the State authority, they should not take into’consideration the’ convenience and necessity of the proper movement of freight or passengers in matters of interstate commerce, but they do have the right to exercise their . police power in safe-guarding the safety of the public, as ’well as the capacity of and conservation of the State highways, even though the application be one relating to interstate commerce.

The facts failing to show that relator has been refused a permit (or certificate) which could have been denied on anyone of at least two further grounds than the necessity for the movement of freight in interstate commerce, and the further fact that such phrase “convenience and necessity” also means “permit,” we are constrained to the belief that relator stands properly charged herein.

We do not think that because he is engaged in the movement of interstate commerce he can be allowed to operate over these State highways with an excessive load, nor a greater width, nor a greater height nor length, nor at a greater speed than is permitted by our State laws, nor over State highways of an insufficient capacity. It is necessary, so we think, when engaging in interstate commerce, that he should submit himself to the proper authorities for a permit to operate over such highways, and be considered by them, as provided by the State' statute, with the exception of their po.wer of determining the need for additional freight or passenger transportation, which latter need is still a part of their powers of consideration only in intrastate movements.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that we were in error in holding that a “permit” to use the highways and a “certificate of convenience and necessity” relative to the use of the highways are convertible terms under our statute.

It will be noted that in Sec. 11, Art. 911b, Vernon’s Tex.Civ.St.1936, when speaking of the “certificate of convenience and necessity,” uses the phrase in conjunction with a “permit” as follows: “Upon the filing of said application ‘ for a certificate or permit, the Commission shall fix a time and place for hearing,” etc.

Again in Section 12 of Art. 911b we find the following: “The hearing on an application for certificate or permit shall be conducted under such rules and regulations as the Commission may prescribe. * * * The Commission at any time after hearing, had, upon notice' to the holder of any certificate or permit and after opportunity given such holder to be heard, may by its order revoke, suspend or amend any certificate or permit issued under the provisions of this Act, where in such hearing the Commission shall find that such certificate or permit holder has discontinued operation or has violated, refused or neglected to observe the Commission’s lawful orders * * * provided, -that the holder of such certificate or permit shall have the right of appeal * * *.”

Again in Section 13 of such statute we find: “Before any permit or certificate of public convenience and necessity may be issued to any motor carrier and before any motor carrier may lawfully operate under such permit or certificate as the case may be, such motor carrier shall file with the Commission bonds * * *.”

Again in Section 13a of such statute we find: “The Commission is vested with power and authority, and it is hereby made its duty, to approve or disapprove the nature and character of the equipment to be used under any permit or certificate and the amount and character of "tonnage which may be hauled thereunder on any motor vehicle, trailer or semi-trailer used under such permit or certificate and in approving the amount and character of tonnage to be hauled on any such vehicles, trailers or semitrailers under any permit or certificate * * *.

It appears from the foregoing quotations from our statute that the word “permit” is always used in conjunction with and interchangeably for the phrase, “certificate of convenience and necessity”, intending to describe and describing the-same thing relative tó a permit to use-state highways for certain purposes. It. will be noticed that at no time does the statute say either a permit or a certificate of convenience and necessity, but it consistently uses the word “permit” or the phrase “certificate of convenience and necessity,” thus evidencing the fact that two instruments are not intended to be referred to, but only one instrument, characterized by two alternative names,. both meaning the same thing.

The question involved was given our best attention on original submission. Believing the correct disposition was thus. made of the appeal, the motion for rehearing is overruled.


source: Caselaw Access Project

author: BEAUCHAMP, Judge.

license: Public Domain

text:
    POTTER v. STATE.
    No. 21060.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    R. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given 100 days in jail on a charge of liquor law violation. The trial was in the District Court of Red River County, proceeding under statute giving it jurisdiction in certain misdemeanor matters. The sheriff of Red River County, together with other officers, went to George Nash’s place on the highway about a mile south of Detroit. An old filling station and store building had been occupied as a business place but was locked up and no business was being conducted in it at this particular time. It was formerly used by George Nash, but there is no evidence that appellant had ever occupied it or that he had charge of it at any time. Inside the building was found an ice box which was locked. The sheriff prized it open and found inside of it one hundred and thirty two pints of whiskey without any tax stamps on them. Leaving the other officers at the place, he went to Detroit where he found appellant getting in his car. He took •charge of appellant, drove ’ back towards the premises where the liquor was found, and on the way he met the other officers. He stopped and searched appellant, finding on his person a bunch of keys. They returned to the premises and with one key unlocked the door to the building. Another would fit and work the lock on the ice box where the whiskey was found.

Appellant didn’t testify in the case and there is no other evidence connecting appellant with the ownership, possession or •control of the whiskey. He is not shown to have lived near it or even to have visited the place. It is not shown what kind of lock was on the building nor the box, except that it is a padlock. It might have been an ordinary door lock, so far as the record is concerned, or some other kind which many keys would open.

The sheriff testified on cross-examination that he understood the property was owned by George Nash, who was in charge of it and lived across the road from it; that it contained only the ice box and some junk and that it was last used by George Nash. He said further that he didn’t know whether or not the appellant ever conducted a filling station or sold any groceries or anything else in that building and never knew of him having charge of it at any time.

Under this state of facts the evidence does nothing more than create a suspicion against the appellant, but is by no means sufficient to support a conviction. Branch’s Penal Code, Art. 1877; Hernandez v. State, Tex.Cr.App., 72 S.W. 840; Rice v. State, 122 Tex.Cr.R. 64, 53 S.W.2d 629.

The judgment is reversed.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    BURNS v. STATE.
    No. 20946.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Motion to Reinstate Appeal May 15, 1940.

      M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is the possession of beer in dry area for purposes of sale; the punishment assessed is a fine of $200.

The recognizance in this case is fatally defective and the appeal must be dismissed. It merely recites that the appellant has been convicted of the offense of possession of beer without stating words which would show that under the circumstances such possession is ’ an offense. See Wells v. State, 114 Tex.Cr.R. 63, 24 S.W.2d 439; Robertson v. State, 77 Tex.Cr.R. 536, 179 S.W. 106; 4 Tex.Juris, pp. 134-136. Moreover it does not state that appellant was convicted “in this cause” and it is not made to appear in what cause he was convicted. See Robertson v. State, 45 Tex.Cr.R. 516, 78 S.W. 517; Hannon v. State, 48 Tex.Cr.R. 199, 87 S.W. 152; see also Art. 831, C.C.P., where a proper form is set out. It might also be noted that the caption fails to show when the term of court convened at which appellant was tried.

The appeal is dismissed.

PER CURIAM..

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

On Appellant’s Motion to Reinstate the Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

J. L. Sandlin, a law enforcement officer in the City of Brownwood, went to appellant’s place of business on the 29th day of July, 1939. According to his testimony, as he passed through the door he saw appellant hand a glass of beer through a peephole in a partition wall between the kitchen and dance hall. Appellant was in the kitchen and the man receiving the beer was in the dance hall. After the man receiving the beer started, to drink it Mr. Sandlin took possession of the glass and walked out. It does not appear that any other beer was found in the possession of appellant, it being inferable from the record that no search of the place was made. However, Mr. Sandlin said there was a man in the dance hall with a bottle of whisky. He did not know who the man was. Referring to this man, he said: “He saw me, grabbed it (referring to the whisky) back in his hand and ran out. No, I did not take any whisky or beer or anything from the possession of this defendant. * * * I do not know where the fellow who had the whisky went.” The witness said further: “I did not take anything off of Burns (appellant) .”

Appellant did not testify and introduced no witnesses.

There was testimony to the effect that there were a number of people in the dance hall, but there was no testimony to show that any of them, save the party the appellant handed the glass to, were drinking beer. There is nothing to show that appellant had any other beer than the glass the officer saw appellant pass through the peephole. The testimony fails to show that appellant received any pay for the beer or that it was agreed that he should receive pay therefor. Moreover, the testimony fails to show that appellant had sold or offered to sell beer or any other intoxicating liquor to any person. Under the facts reflected by the record, the hypothesis is not unreasonable that appellant gave the beer in question to one who was a friend or a patron of his dance hall.

The name of the person to whom the beer was handed is not disclosed in the testimony of the officer or of any other witness. We quote from Branch’s Ann.P.C., Section 1877, as follows: “To sustain a conviction it should appear not only that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him. Tollett v. State, 44 Tex. 95; Porter v. State, 1 Texas Cr.App. 394, 399; Jones v. State, 4 Texas Cr.App. 436; Gill v. State, 36 Tex.Cr.R. 589, 595, 38 S.W. 190; Clifton v. State, 39 Tex.Cr.R. 619, 47 S.W. 642.”

We think the testimony does no more than to raise the suspicion that appellant possessed beer for the purpose of sale.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Presiding Judge. HAWKINS, Presiding Judge.

text:
    RICKER v. STATE.
    No. 20943.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Appellant’s Motion to Reinstate Appeal May 15, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for possessing beer for the purpose of sale in Brown County, alleged to be dry area; punishment being a fine of $100.

The appeal must be dismissed because of an insufficient recognizance. It recites that appellant was convicted of the “offense of possession of beer”, as shown in the complaint and information, and as more fully described in the judgment of conviction. ' Possession of beer is not an offense, and there is no recital in the recognizance that appellant was convicted of a misdemeanor as is required in the statute.

The same defect appears in this recognizance as is apparent in I. B. Burns, Sr. v. State, Tex.Cr.App., 140 S.W.2d 175, opinion dismissing appeal of this date.

It is a matter of some curiosity to this Court why, with Article 831 of the Code of Criminal Procedure plainly setting out the form of a recognizance on appeal in misdemeanor cases, that proper recognizances and appeal bonds can not be prepared.

The appeal is dismissed for the reasons-heretofore stated.

On Appellant’s Motion to Reinstate Appeal.

HAWKINS, Presiding Judge.

Conviction is for possessing beer for the purpose of sale in Brown County, Texas, alleged to be dry area; punishment being a fine of $100.

The appeal was dismissed at a former day of the term on account of a defective recognizance. The defect has been cured by a proper appeal bond, and the appeal will be reinstated and now considered on its merits.

The facts are short but quite confusing. On May 6, 1939 officers, under authority of a search warrant, found in a-house at 1818 Second Street, in Brown-wood, 23 cases of beer. They were stacked between the headboard of a bed and the wall. Appellant was not present when the officers took possession of the beer, and none of them ever saw her at any time abo'ut the place. Mrs. Funderberg’ was at the house when the search was made. The State proved by her that she was there cleaning up the house preparatory to moving into it. Appellant was a niece of witness’ husband. During the direct examination of witness she testified that appellant came to the house while witness was there, sat down and pulled off her shoes and hat. In this connection, she said appellant “lived there.” On cross examination witness said the house belonged to some heirs — naming some of them — but she thought no one had it rented, and that she thought no one was living in it. At this point we quote her evidence: “Mr. Richardson had been living there, * * * Sadie (appellant) had a room there for a while. Immediately after Mr. Richardson moved out I contemplated moving in. I asked Sadie twice to leave some things in that house so that I could hold the house. That was about ten days before I went to clean up the house. Mr. Richardson moved out about ten days before. I don’t know when Sadie moved out. I don’t know whether or not Sadie vacated at the same time he did or not. I asked her to leave some things to hold the house. Those things were there. I had been there twice at that house. The first day I went there I looked over the entire house. Well, I was in all of it. I did not see any beer the first day I was there. That was the first day Sadie came in and pulled off her shoes and that was the 5th and then on the 6th day of May the officers came out, Sadie wasn’t there. * * * There was some men came after some of the beer on the 5th. Sadie didn’t come after any beer. I do not know who this was that came after the beer that is the man. He didn’t knock but came right on in. The only reason I knew he was there me and my sister started to get a tub of water off a stove and he told us to wait a minute and he would help us. We managed the tub by ourselves and then saw him picking up three cases of beer and carrying it out. Since it had been vacated there wasn’t any locks on the door that I knew of. Anyone could go in and out. I don’t know about night time. I never tried to lock the door. I do know some one came and got three cases o'f beer and then th'e officers came and got the rest of it. I get kind of' confused about the 5th and 6th, I don’t know which it was. I do know some one came and got some beer and then in the afternoon the officers got the rest of it and there was nobody living in the house at the time. There wasn’t any sign of any one cooking, eating and sleeping in there.”

Mrs. Gibby, a sister of Mrs. Funderberg, was assisting Mrs. Funderberg in cleaning the house and testified substantially as did her sister. Some man whom neither of them knew came to the house both on the 5th and 6th of May, one time taking away with him two cases of beer and the other time four cases. Appellant was not present upon either of these occasions. Both Mrs. Funderberg and Mrs. Gibby affirmed that the beer did not belong to them. In the room where the beer was stacked was a bed, table, stove and some clothes on the wall. The record does not show whether the clothes were female or male wearing apparel.

The foregoing facts are substantially all that was developed from, the State’s witnesses. Appellant did not testify, but introduced Mr. Richardson as a witness.- He testified as follows: “Along about April or May this year, I lived at 1818 Second Street. I am a married man. My family lived there with me. My sister-in-law lived there too. This defendant is my sister-in-law and she used to live with me on Second Street. I moved away from 1818 Second Street along in April. When I.moved from there and moved my things, I moved my sister-in-law’s, the defendant’s. My wife’s aunt, Mrs. Funderberg wanted me to leave some furniture there so that she could keep possession of the house. I didn’t leave anything' of mine there. She said something to my sister-in-law, the defendant about leaving a bedstead there and a little table so she could keep possession of the house. I moved the defendant over to her mother’s. * * * I didn’t know it if she had moved back to 1818 Second Street. Her things were at her mother’s. I moved her in April and moved her over to her mother’s. Her mother lives at 800 West Anderson. She was living there on the 6th of May. She was staying there. I was over there every day. * * * All I know is that I moved her things over to her mother’s. * * * ”

No effort seems to have been made to ascertain from Mr. Richardson the name of the party from whom he rented the property nor from Mrs. Funderberg the right under which she proposed to occupy the house, after Richardson vacated it. The only person shown by the State to have actually exercised control over the beer in question was the unknown man who on two different occasions took away from the house a part of said beer. Of course, if appellant exercised joint control and management with said unknown man she would be a principal offender, or' if she had exclusive control of the beer and the said man took a part of the beer with her permission she would be a principal. To our minds the evidence seems to raise barely a suspicion that appellant was a principal on either theory suggested. It appears from the evidence that the house was unlocked and that anyone could have entered it and stored the beer found there. The only evidence which approaches the fixing of possession of the house on appellant is that on May 5th she came into the house while two other women were there, took off her shoes and hat-and said something about changing her clothes. This fact must be viewed in the light of the further fact that the State’s own witness testified that she had requested appellant to leave some things in the house for the purpose of aiding the witness to occupy it. We fail to see the reason for asking appellant to “leave” some things if appellant herself was remaining in possession. It rather supports the theory that the witness understood appellant was not to remain as an occupant of the house. To our minds the evidence falls short of measuring up to the standard required of circumstantial evidence. We quote from the opinion in Rice v. State, 122 Tex.Cr.R. 64, 53 S.W.2d 629, 631, as follows: “A conviction on circumstantial evidence cannot be sustained unless the circumstances proven exclude every other reasonable hypothesis except that of the guilt of the accused. Proof that only amounts to strong suspicion or mere probability is not sufficient to support a conviction. Branch’s Ann.P.C. § 1877; Hernandez v. State, Tex.Cr.App., 72 S.W. 840. There must be evidence overcoming the presumption of innocence and excluding every other reasonable hypothesis except the guilt of defendant. Branch’s Ann.P.C. § 1877; Hernandez v. State, supra; Pogue v. State, 12 Tex.App. 283; Hogan v. State, 13 Tex.App. 319; Clifton v. State, 39 Tex.Cr.R. 619, 47 S.W. 642. This, we think, the evidence fails to do.”

The foregoing observation reflects our view under the record, in the present case.

The judgment is reversed and the cause remanded.


author: HAW'KINS, Presiding Judge. HAWKINS, Presiding Judge.

text:
    HODGES v. STATE.
    No. 20947.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    On Appellant’s Motion to Reinstate Appeal May 15, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAW'KINS, Presiding Judge.

Conviction is for selling whisky in Brown County, which is alleged to be dry area; punishment assessed being a fine of $200.

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

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

On Appellant's Motion to Reinstate Appeal.

HAWKINS, Presiding Judge.

The appeal was heretofore dismissed on March 27, 1940 because of a defective recognizance. By supplemental transcript it is shown that the defect has been remedied by a proper appeal bond. The appeal is therefore reinstated.

No statement of facts is in the record.

Appellant was charged with selling whiskey in Brown County, which was alleged under proper averments to be “dry area.’’ It was also alleged that appellant had theretofore been convicted of a similar offense.

The charge of the court conforms to facts provable under the State’s pleadings, and in the absence of the facts we are in no position to appraise the objections to the Court’s instructions.

The same is true with reference to some -of the bills of exception brought forward. The bill which criticizes the complaint and information is not meritorious.

Bill No. 4 reserves' exception because the court did not quash the complaint and information, it apparently being the contention of appellant that it was necessary for the complaint to be attached to the information. There is no merit in .such contention. The court qualifies the bill by stating that the information was based on a valid complaint, which was on file among the papers in the cause, and said complaint is found in the transcript.

No error appears from the record. The ’ judgment is affirmed.,


text:
    POTTER v. STATE.
    No. 21062.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    R. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

This case was tried in the District Court, 102nd Judicial District, Red River County. The appeal is from a conviction assessing the penalty of thirty days in jail on a charge of violation of the liquor laws.

This case has been before the court on a former appeal and is found in Volume 128 S.W.2d 804, to which reference is made for a statement of the nature of the case.

The apparent difference in the facts in the present appeal and that on the former trial is in the evidence of the witness Curtis Lemon, a deputy sheriff who made the arrest. He states that appellant lives in or near the town of Detroit and in the north portion thereof. He lives on the east side of the road going north and it was in the road and near his home that he arrested appellant. A few minutes before the arrest he drove out to the vicinity of his home in company with another party and stopped the car to watch for the appellant. Soon he saw him a short distance across an open pasture near a slaughter pen and in the. vicinity of a small patch of timber. He had no warrant for his arrest and he had no search warrant. He saw him commit no violation of the law, nor did he claim to have any such information as would warrant him in making the arrest without a warrant. There is no evidence, that he was arrested in an incorporated city or town. After arresting him he searched him and found two pints of whiskey.

After making the arrest the officer took the appellant up the road in the direction of the place where they first saw him. He followed his tracks showing the imprint of appellant’s shoes until he came to a gate going into the slaughter pen. By this means he was attracted to 'a path at the end of which he found a piece of metal about six inches long and three inches wide in some brush and leaves. By examination it proved to be an entrance to a large tin can where he found several bottles of whiskey of the Crab Orchard brand, which was the same as that of the two pints found in appellant’s pocket. The whiskey bore no stamp or other evidence on it showing payment of taxes due to the State of Texas.

The witness testified on cross examination that he never saw any liquor on or about the appellant until after he arrested him; and never saw him in control of the container which he found and out of which the liquor in evidence came.

So far as we are able to tell, the facts of the case are identical with those in the former appeal with two exceptions. The record in the former appeal indicates that he stated he first saw appellant in the road where he arrested him, while in the present' appeal he states that he saw him near the slaughter pen in which the whiskey was found. Again he states this time that before he arrested appellant he saw an imprint of some object in his pocket which, upon the search, proved to be whiskey. It is not claimed, however, that he saw appellant at the very spot where the can containing whiskey was found, nor that he had anything to do with it. Neither is it claimed that he knew the bulky object was whiskey or had any evidence that would indicate such until he made the search. The difference in the facts of the two appeals is immaterial. The reasoning in that opinion is applicable here and the authorities there cited are sufficient to control this case.

The judgment is reversed and the cause remanded for a new trial.


author: HAWKINS, Presiding Judge.

text:
    Ex parte McLEAN.
    No. 21071.
    Court of Criminal Appeals of Texas.
    May 15, 1940.
    Crawford C. Martin, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Relator obtained from Hon. J. D. Stephenson, District Judge of Hill County, a writ of habeas corpus seeking bail, or a reduction thereof, upon a charge by indictment of the offense of burglary. Upon a hearing relator’s bond was fixed at $2,-500, from which order he gave notice of appeal to this court.

It is now made known to us that relator’s bond was reduced to $1,000, which he has given, and was ^ released from custody, hence the question presented on appeal has become moot.

The appeal will, therefore, be dismissed, and it is so ordered.


text:
    GANDY v. STATE.
    No. 20814.
    Court of Criminal Appeals of Texas.
    March 13, 1940.
    Rehearing Denied May 22, 1940.
    C. S. Farmer, of Waco, and Scott Reed, of Groesbeck, for appellant.
    L.' L. Geren, Co. Atty., Limestone County, J. B. Engledow, Asst. Co. Atty., and L. W. Shepperd, Sp. Pros., all of Groes-beck, and Lloyd W. Davidson, State’s Atty., of Austin, for the-State.
   GRAVES, Judge.

Appellant was charged by indictment in the district court of Limestone County with-assault to murder with malice. The offense is alleged to have been committed on the 16th day of July, 1938. The trial of the case was had on July 5, 1939, and the verdict of the jury resulted in finding the defendant guilty of assault to murder with malice and fixing his punishment at two years in the state penitentiary.

The facts disclose that the prosecuting witness, Hubert Harris, lived within a few miles of the city of Groesbeck and was engaged in farming. He had a watermelon patch in which he raised melons for the market. On the occasion of the trouble, which was Saturday about noon, he had parked his truck loaded with melons near the intersection of an alley with a public street in the business district and in a crowded section, where he prepared to offer his melons for sale. The appellant, W. W. or Bill Gandy, and his brother, Albert Gandy, together with a friend of theirs, approached the prosecuting witness in a manner indicating that they had been angered or insulted by some previous remarks which the prosecuting witness had made concerning them. The appellant announced that he understood that the prosecuting witness wanted to whip or kill some of the Gandys and.said, “Here we are”. That is probably the most reasonable interpretation of the summary of all the testimony as to what was said. Of the numerous witnesses called by the State, no two understood exactly the same thing to have 'been said. There is nothing unnatural •about this, and there is no material difference in the purport of the statement as they each remembered it. Regardless of the verbiage, the same conclusion must be reached. The Gandy brothers were angry and announced their insult upon their approach in a way that invited the beginning of hostilities. Harris accepted the challenge, for it was no less than such, and instantly made the assault upon the appellant, who apparently was taken somewhat unaware by Harris’ quick action and retreated backward across the alley and at least to the center of the street which was estimated to be about sixty feet in width. During this retreat, Albert Gandy pursued Harris and engaged in a fight. Under the testimony, as we understand it, it appeared to be a fist fight with the two Gandy brothers and the prosecuting witness between them until they reached the middle of the . street, when both the Gandy brothers began cutting Harris with knives which resulted in the infliction of some serious wounds on Harris, but none on either of the Gandys, and there is no evidence that Harris attempted to use any weapon of any kind whatsoever. According to the State’s theory, the appellant called to his brother to cut Harris’ head off and again said they should kill him while they had him. This language was embellished with the usual emphasis, the words of which are not essential to a correct understanding of the case. The language is probably the strongest indication of an intent to take the life of Harris of anything in the case.

Appellant presents that the evidence is wholly insufficient to support the conviction. The court gave a charge on self-defense. Our difficulty from the record is in finding evidence sufficient to warrant a charge on self-defense. We think the conviction is amply supported by the evidence.

By questions asked of several witnesses, it is indicated that appellant-had an afflic'tion which would require more than the ordinary effort, and might justify more than the ordinary means to defend himself from the attack of Harris. However, no physician testified as to the nature of this affliction. The barber whose cross-examination gives us the .most definite description fails to state that the appellant had a hole iñ his head or that his brain was so exposed as to be easily affected, as indicated by the questions asked by the defendant’s counsel. The existence of the wound, its nature, and the result of it, should play an important part in "determining the question as to whether or not a charge on self-defense would be proper. The condition of the present record fails to include all the evidence in this regard which might be available. If a plea of self-defense could justify the action of the appellant, it must be because of this affliction or by some other physical fact which does not appear from the record. It will be assumed, however, from all the circumstances that the trial court was justified in giving the charge.

The prosecuting witness testified as to the approach by the Gandy brothers and also as to his immediate action in accepting the challenge presented to him and in making the attack on Bill Gandy. After being asked concerning all of these facts, he was permitted to testify over objection of the appellant as follows: “I hit Bill Gandy when he came up to me, in the manner he did with his hand in his bosom, because I thought he was going to pull a gun on me or something.”

This evidence is an explanation of the attack made by the witness on the defendant and it is complained of as a matter in his mind undisclosed to the appellant. Ordinarily, evidence of the undisclosed purpose of a prosecuting witness in approaching and assaulting the accused at the time of the commission of the offense is inadmissible as an attack on the right of the accused to defend himself. This rule is based upon the fact that the accused could not be charged with the motivating cause in the mind of his assailant unless he knew at the time what the cause was.

In the case of Tillman v. State, 51 Tex.Cr.R. 202, 101 S.W. 210, the party prosecuted for murder had received threatening letters from unknown persons demanding that he move from the' community. Shortly thereafter he discovered that the house where he was boarding was surrounded by a number of persons who were armed and who demanded that he come out. He did so, but approached shooting, which resulted in the death of one of the parties. The State offered to prove the motive for the parties going to the house. Under the circumstances of that case, it was held that the evidence was inadmissible. It will be noted, however, that the explanation offered was not based on any immediate or recent act of the appellant which was before him at the time of the homicide, or even known to him, explaining or tending to explain the aggressive conduct of the deceased.

Again, in Darnell v. State, 58 Tex.Cr.R. 585, 126 S.W. 1122, the accused relied upon his right of self-defense and proved threats of the prosecutor. Following these threats, evidence was offered by the State to show the undisclosed purpose of the prosecutor in approaching and assaulting the accused at the time the offense was committed. The circumstances of this case are likewise different from those in the one. before us in that they do not present a state of facts which would at the very instance of the attack disclose to the accused the reason forsthe attack.

The instant case is to be contrasted from the foregoing by a state of facts which we think are controlling. Appellant approached with his hand in the bosom of his shirt in a threatening manner. His very language not only invited an immediate attack from Harris with an indication of a preparedness to defend himself, but it may well be construed by a reasonable man as an immediate threat to make an attack himself. The evidence complained of is the conclusion of Harris as to his perilous position in front of Gandy and naturally flows from the things said and done by' Gandy. He must have known his conduct put Harris in motion. It is therefore without the rule forbidding the introduction of evidence of undisclosed motives.

By bill of exception No. 6 appellant complains of what he denominates an oral instruction to the jury by the trial judge. Concluding their deliberations, the jury came into the court room with the following verdict:

“We, the jury find the defendant guilty of an assault with intent to murder and assess his punishment at two years confinement in the State Penitentiary.
“J. E. Birmingham,
“Foreman of the Jury.”

Upon examining the verdict, the court said to them: “Gentlemen of the Jury, the Court, under the law, instructs you to find, in your verdict, whether it is with malice or without malice, if you find him guilty. If you find him guilty, find without malice or with malice.”

The statement of the court, in its formality, appears to be a charge to the jury. We find, however, that it is upon a subject embraced in the written charge of the court. He had instructed them as to the law which would require a verdict with malice or a verdict without malice, if they found him guilty. The jury had already returned its verdict. The instruction was nothing more than that the jury should correct their verdict to conform to the written charge which had been given them, which it said was the law of the case. The law requires the presence of the defendant in the court room when the verdict is returned, and there is no complaint of it being done in his absence. It will therefore be presumed that he was present. The record shows no objection at the time and no request that the statement of the court should be in writing. It therefore appears that defendant’s counsel viewed the matter at the time as we now view it; that is, a mere instruction to the jury to correct their verdict, which was done.

Ables v. State, 103 Tex.Cr.R. 456, 281 S.W. 858, was reversed because of the following oral charge of the court: “Gentlemen of the jury, you must not separate during the trial of this case. If you separate, your verdict will be a nullity, and void, and I will have to set it aside, and give the defendant a new trial, and what you have rendered in this case will be void.”

It will be noted from the foregoing that the vice in the case is the fact that the court assumed in his statement that they were going to return a verdict which, if followed by a separation of the jury, would have to be set aside at the instance of the defendant, and it was specifically stated that the court would have to “give the defendant a new trial”. The same defect was noted in the court’s statement to the jury in Mahaney v. State, 95 Tex.Cr.R. 443, 254 S.W. 946, 949, as well as in Johnson v. State, 67 Tex.Cr.R. 441, 149 S.W. 165. These cases are relied on by appellant.

In the case of Hale v. State, 120 Tex.Cr.R. 68, 47 S.W.2d 834, complaint was made of the written charge that it did not. charge on the burden of proof nor that the defendant was to have the benefit of reasonable doubt. After this objection was presented in writing and filed with the clerk, the court supplemented his written charge by an oral charge on the subject in an attempt to cure the defect. This court held the action to be error. The question in that case was different from the one before us because it was a supplement to a defective written charge on the subject in an attempt to supplement, add to and cure by an oral instruction that which was left out of the written charge. The action of the court herein complained of presents no new matter. The very subject of it is -embraced in the written charge, and the only result that could possibly be attributed to his action was to correct the verdict, as the jury had already found it and conform it to the written instruction which he had .given.

Bill of exceptions No. 9 is concerned with the argument of the private .prosecutor in his address to the jury, and in order that such bill be fully understood it is necessary to quote therefrom, the matter complained of being contained in the last quotation in the following argument :

“Now then, gentlemen, we are getting to the real merits of this case. There are seven words in the testimony that are uncontradicted by the evidence and unchallenged by the evidence and absolutely unchallenged by any argument that tell the whole story; that explain this whole thing. You know when Hubert Harris was on the stand telling you he was standing by that water melon wagon when Bill Gandy approached him and said: ‘Hear you want to take a pop at or you want to whip a God damned Gandy, here we are — here we are.’ All right when the defense took him on cross examination and hammered him and hammered him and brought out this question with much display of calling the jury’s attention to it ‘do you know a single solitary reason in the world why Bill Gandy would come down here and say that to you if you hadn’t made that statement or hadn’t said something to that effect,’ and his answer was those seven words that tell the story, gentlemen. Do you remember what it was? No witness has contradicted it, no attorney in argument has in the least questioned it. Those words are: ‘Because he is that kind of a man.’ Gentlemen, gentlemen, that was their evidence.
“ ‘Can you imagine if a bulley, a rower, fusser and fighter wanted to pick a fight out of a man for any reason in the world — ’.
“At the time Mr. Shepperd made said statement, ‘Can you imagine if a bulley, a rower, fusser and fighter wanted to pick a fight out of a man for any reason in the world,’ defendant’s counsel objected thereto, and the court instructed the jury not to consider that part of Mr. Shepperd’s argument, and ordered it stricken from the record.”

In the case of Albert Gandy v. State, 137 Tex.Cr.R. 412, 129 S.W.2d 661, 662, a companion case to this one, the following was held to have been error: “The state, on cross-examination of appellant, propounded to him the following questions: ‘Now, Bill Gandy is quite a “bopzer” himself and “gun-toter”, a rower and fusser and fighter ?’ ”

It will readily be seen that the statement in this case, above objected to, was not completed'but was subjected to an objection before an application thereof • was made in the argument. We are not impressed with the idea that such an argument was inadmissible, especially on account of the cross-examination of the prosecuting witness, and the testimony of further witnesses in the case. In any event it is shown that appellant did come up to where Mr. Harris, the injured party, was at his watermelon wagon, and accosted Harris and said, in substance, that he heard Harris wanted to whip a Gandy, and “Well here we are.” That the fuss and the row and the fight thereupon began, and a good deal of language seemed to have been then used by appellant such as “Cut him,” and “Cut his guts out,” and other words that may have evidenced the characteristics embodied in the above objected to words which, on account of the prompt objection being sustained by the court, were never applied to anyone, and such sentence was never completed. We are not of the opinion that such an argument was inadmissible, and no error is evidenced, but we do think that if such error was committed, that same was cured by the court’s prompt instruction to the jury to disregard such argument.

We do not think any error is shown in bill of exceptions No. 10, but do think same was a legitimate deduction from the testimony.

Bill of exceptions No. 11 complains of the following remarks of the special prosecutor in his address to the jury, as follows: “They tell you and read from the court’s charge about his having the right to defend himself, but in that charge the court told you to view it from Bill Gandy’s standpoint, and told you if he cut Hubert Harris at the time he did, he had a fear of death or serious bodily injury at the hands of Hubert Harris to find him not guilty. What evidence is there in this record showing the slightest fear of any injury whatever ?”

It is contended that the last sentence thereof necessarily referred to the defendant’s failure to testify in this case. We do not think such is a necessary. deduction from the above quoted remarks. The only part thereof that could possibly be objectionable is the sentence: “What evidence is there in this record showing the slightest fear of any injury whatever?” It is contended that the oral testimony alone of the defendant is the only way that a fear of injury could be shown, and therefore such an argument necessarily referred to appellant’s failure to testify. With this we do-not agree. Such could have been shown by his actions prior to the beginning of the difficulty, during the difficulty, and after such difficulty. It was shown by witnesses-that he, together with his brother, sought the meeting with the injured party; that he and his brother fought the injured party;- that appellant called to his'brother to-cut Harris; that they did cut him, two of the wounds being dangerous wounds, one severing an artery in the hand, one penetrating the plural cavity and air coming therefrom, and one in the back; that these two continued fighting until separated by Goolsby, and then the Gandy brothers-walked over to a drug store and appellant drank a coca cola, and had such a slight injury himself that water washed it off. The appellant’s actions, his coolness, his calmness, his demeanor, the words he spoke during the fight, were all in evidence, and oftentimes they speak louder than later uttered words in showing the condition of one’s mind during a difficulty such as this. The record is replete with appellant’s acts and words, testified to by others, and we do not think that the above objected to sentence is violative of the statute prohibiting a reference to the accused’s failure to testify. This bill is overruled.

It was shown that Mr. Harris had two-serious and dangerous wounds in his body, received in this affray. An artery was-severed in his hand, and he was permanently crippled in such hand; that a chest wound penetrated the plural cavity, and bubbles of air were escaping therefrom when first seen by the doctor, and that he had a further wound in the back.

We think the facts justify the verdict of an assault to murder, and finding no error herein the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

We remain of opinion that the questions discussed originally were correctly disposed of. To write further regarding them is not necessary.

Appellant complains because we did not discuss in detail his bills of exception 2, 3, 4, 5 and 10. We have again examined said bills and it appears to us now as it did on original submission that none of them presents any serious question, and that a discussion of them is unnecessary and would serve no useful purpose.

Appellant strongly urges that his bill of exception No. 12 reflects reversible error. It has reference to appellant’s claim that the jury discussed his failure to testify and was guilty of other misconduct. The evidence heard by the court on the motion for new trial is before us and has been examined. From it the court was justified in concluding that the only reference to appellant not having testified came from the reading of the court’s charge telling them that they could not discuss that fact, and the jurors asserted that it was not thereafter mentioned.

The other claim of misconduct arose from the following incident. The jury considered and discussed the case until about 9 o’clock one night, at which time they ceased deliberating, called in Mr. Bradley, the deputy sheriff who had them in charge, and told him they were ready to retire. After some of them had gone to bed the jurors began telling yarns about some fights they had engaged in previously, and some of them exhibited scars; Mr. Bradley exhibited a wound in his shoulder where he had been shot about forty years before. All of the twelve jurors testified. It was asserted by all of them that at the time the incident happened they were not discussing nor considering the present case, and that what was said or done by anyone in connection with the “spinning of yarns” had no reference to the case. Appellant insists that Art. 671, C.C.P., which precludes any person from conversing with a juror includes the deputy sheriff, and that because the State did not call said officer as a witness on the hearing of the motion for new trial the State did not comply with the rule that: — “Ordinarily, where it is shown that there is a conversation with some unauthorized person, it is incumbent upon the state to not only negative any harmful remarks or transactions by the members of the jury, but it is demanded that the person in question be likewise called to testify.”

The deputy sheriff was not an “unauthorized person.” He was properly present. Of course, his presence would not be permitted at a time when the jury might be discussing the case on trial. It is not to be presumed that when he is properly with the jury that he must -act like a deaf and dumb man, and that it would be violative of said statute for him to engage in a general conversation having no connection with the case on trial. The Newton case, Newton v. State, 114 Tex.Cr.R. 537, 26 S.W.2d 233, we regard as authority for the State’s position that the rule quoted has no application here.

Appellant’s motion for rehearing is overruled.