text:
    ANDERSON v. STATE.
    No. 21005.
    Court of Criminal Appeals of Texas.
    May 1, 1940.

      Russell & Edwards and Vernis Fulmer, ail of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for four years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed George Pleasant by shooting him with a pistol.

It was the theory of the state, given support in the evidence, that appellant sought deceased and killed him without provocation. Appellant testified deceased had alienated his wife’s affections. It was his version that on the occasion of the homicide deceased and Sid Chapman attacked him; that believing that his life was in danger, he killed deceased.

It is seen from the foregoing brief statement of the evidence that a sharp issue was presented as to who began the difficulty. In his motion for new trial, appellant alleged newly discovered evidence, and attached the affidavit of a witness who would have testified, if he had been present at the trial, that deceased stated to him, in effect, that he had gotten into some trouble about a woman out at Center Point and that it “looked like he would have to kill a negro preacher to keep her.” Further, the witness stated in his affidavit that he would testify that deceased stated to him at the time that he had “done gone too far now to back up, because this negro is done expecting me to do something to him * * It does not appear that the failure of appellant to discover the testimony prior to his trial is due to any lack of diligence on the part of himself or his attorney. We think the motion for new trial should have been granted. We quote from Branch’s Ann.Texas P.C. Section 2092, as follows: “Where it was a vital question as to who began the difficulty or who was most likely the aggressor, a new trial should be granted for newly discovered evidence of uncommunicated threats.” In support of the text several authorities are cited, among them being Pate v. State, 54 Tex.Cr.R. 462, 113 S.W. 759.

Appellant brings forward two bills of exception in which he complains of the action of the trial court in permitting the state to introduce in evidence the hats of the deceased and Sid Chapman. These hats had bullet holes in them. It is certified in the bills of exception that the introduction of such hats tended to solve no issue in the case. Without predicating a reversal upon these bills of exception, it is suggested that upon another trial the hats should not be received in evidence unless they tend to solve some issue in the case.

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.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    RANKIN v. STATE.
    No. 21030.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Xavier Christ, of Port Arthur, and, David E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is maiming; the punishment, confinement in the penitentiary for three years.

The injured party, Willie Johnston, testified, in substance, as follows: On the 24th of June, 1939, appellant came to witness’ beer parlor and began playing the Victrola. A dispute arose between appellant and a woman over the selection of a record. Appellant began cursing and the witness ordered him out of his place of business. Instead of complying with the command of the witness, appellant struck him with a bottle and knocked him down. Someone picked the witness up. At this juncture we quote from the testimony of the witness as follows: “After they picked me up I got to my feet, and I walked down to the counter, and I said to Joe Mitchell, T guess it is time to close’ something like that, and in a few minutes afterwards Joe Mitchell said ‘look out nigger — don’t throw that bottle’ I ducked my head, and went to look up, just as I went to look up he struck me in the eye. I know who struck me. Earl Rankin is the one that hit me. He hit me with a bottle. He hit me with a flask; it was about a pint bottle that he hit me with. I couldn’t tell you just what he did do when he hit me. The reason that I couldn’t tell you what he did after he hit me with that bottle is because my eye sight was gone. After I was hit in my eye with that bottle they turned me around and set me down; I sat there a few minutes, and then they carried me to the hospital. My eye is out now. They had to take my eyeball out; they took it out the next day. Doctor Harrell is the doctor who took my eye out.”

Several witnesses for the state corroborated the injured party’s version of the transaction.

Appellant admitted that he got into an argument with a woman about the Victrola. It was his version that she cursed him, and that, without provocation, the injured party, who was standing nearby, hit him. He then hit the injured party and they grabbed each other and fell to the floor. Someone in the beer parlor began to throw bottles. Further, appellant testified that the fight lasted about two and one-half minutes. We quote from appellant’s testimony: “This Leverne boy came up there to separate us, but, when the bottles started coming he got back. When the bottles started coming I jumped up and ran out of the place.” Again, appellant testified that he at no time struck the injured party with a bottle.

Appellant’s affirmative defense to the effect that someone else struck the injured party with a bottle was properly submitted to the jury.

It is appellant’s contention that the evidence is insufficient to show he wilfully and maliciously and by premeditation and design put the injured party’s eye out. We are- unable to agree with this contention. Art. 1166, P.C., reads as,follows: “Whoever .shall wilfully and maliciously cut off or otherwise deprive a person of the hand, arm, finger, toe, foot, leg, nose or ear, or, put out an eye or in any way deprive a person of any other member of his body shall be confined in the penitentiary not less than two nor more than ten years.”

The authorities define the word “wilful” as follows : “A wilful act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. .A malicious act is one committed in a state of mind which shows a heart regardless of social duty, and fatally bent- on mischief; a wrongful act intentionally done, without legal justification or excuse.”

See 29 Texas Jurisprudence 441, and Bowers v. State, 24 Tex.App. 542, 7 S.W. 247, 5 Am.St.Rep. 901. In 29 Texas Jurisprudence 441, it is said: “It is thus seen that the words ‘wilful’ and ‘malicious’ have the same .legal meaning in cases of this character as do the words ‘malice aforethought’ in murder cases. But a specific intent to maim need not be proved. ‘If the means used in the commission of the offense is such as would, in the manner used, ordinarily result in maiming, the law presumes that the intention was to maim, * * * without regard to the knowledge of the party using such means as to whether -or not - the same were calculated to maim.’ ”

We quote from Davis v. State, 22 Tex.App. 45, 2 S.W. 630, 631, in which it is shown that the accused was convicted of the offense of maiming: “It is insisted by counsel for the defendant that the word ‘willfully,’ as used in this statute, means more than it has been held to mean in other cases; that it means, not only that the act causing the injury was intentional, but that the party inflicting the injury intended the probable result of the act; in other words, that it means a specific ■intent on the part of the person inflicting the injury to maim the person injured, or that the person inflicting the injury must have known at the time that the means used by him were calculated to maim.

- “If this had been a prosecution for assault with intent to maim, the specific intention to maim would be essential, and it would have been error if the court had failed to so instruct the jury; but when; as in this case, the maiming was actually effected, if the act was committed with evil intent, with legal malice, without reasonable ground for believing it to be lawful, and without legal justification, it was willful and malicious, whether or not it was committed .with a specific intent to maim. And if the means used in the commission of the offense is such as would, in the manner used, ordinarily result in maiming, the law presumes that the intention was to maim (Pen.Code, art. 50), without regard to the knowledge of the party using such means as to whether or not the same were calculated to maim. In our opinion, the court charged the law of this case fully, fairly, and correctly, and did not err in refusing the special charges requested by the defendant.”

In Keith v. State, 89 Tex.Cr.R. 264, 232 S.W. 321, 323, 16 A.L.R. 949, this court, speaking through Judge Lattimore, used language as follows: . “Appellant excepted to the court’s failure to charge on the question- of his intent and premeditated design. In the Davis. Case, 22 Tex.App. 50, 2 S.W. 630, and the Key Case [Key v. State, 71 Tex.Cr.R. 642, 161 S.W. 121, L.R.A.1916E, 492], supra, we held that if the maiming was-actually committed, and was with evil intent and without justification, same would be punishable whether or not there was any specific intent or premeditated design to maim. In the instant case the trial court defined a willful act as one done with evil intent, and told the jury that malice denoted a wrongful act intentionally done without just cause or excuse. This we think sufficient upon the question of intent under the facts of this case. Bowers v. State, 24 Tex.App. [542] 549, 7 S.W. 247, 5 Am.St.Rep. 901; Pool v. State, 59 Tex.Cr.R. 482, 129 S.W. 1135.” See, also, Key v. State, 71 Tex.Cr.R. 642, 161 S.W. 121, 122, L.R.A.1916E, 492.

According to the testimony of the state, appellant deliberately struck the injured party in the eye with a bottle. The result was that the eye of the injured party was put out and had to be removed by a physician. We think the jury were warranted in concluding that the means used by the appellant, in the manner used, would ordinarily result in maiming.- Stated in another way, the jury were warranted in concluding that striking a person in the eye with a bottle with the force 'used by the appellant would ordinarily result in putting the eye out.

Giving effect to the principles controll-/ ing, we are constrained to hold the evidence sufficient.

In passing sentence the court Hailed to take note of the Indeterminate Sentence Law. See Art. 775, C.C.P., Vernon’s Ann.C.C.P. art. 775. The sentence is reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for not, less than two years nor more than three years. . . - . As reformed, the judgment is affirmed.

PER CURIAM.

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


author: BEAUCHAMP; Judge.

text:
    LEBERMAN v. STATE.
    No. 21053.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    L. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP; Judge.

The appeal- is from the County Court of Young County in which a fine of $25 was assessed on a charge of violating the parking law (Vernon’s Ann.P.C. art. 827a, § 10).

Appellant is a constable of the Olney precinct and during 1939 was strongly solicited to become a candidate for sheriff. Arch Talley, a deputy sheriff, was ambitious for the honor. He seems also to have been stationed at Olney and much of the record consists of written motions and pleas setting forth these facts. ■

Simplified, the 'story: is that the appellant’s car became stopped on the highway about a mile out of town at a late hour in the night. He was accompanied by a woman who had attended a dance where appellant had gone for the purpose of keeping peace. As an accommodation to her and her family, who desired to leave earlier, he was furnishing transportation to her home.

The evidence -given by appellant is irreconcilably in conflict with that given by Talley but the fact is without-dispute'that the car was parked on the pavement and Talley, hearing about it, arrested appel-ant and brought- him to town, filing charges in-the Justice Court The woman was also charged with being drunk- and , upon trial was acquitted.

Appellant was placed on trial in the Justice Court, to which a large crowd came, and the Justice of the Peace was forced to abandon his usual.quarters-and seek a more commodious court room. Indications are that the crowd was interested in the out come, for and against, and, as usual, a hung jury resulted. The court .excused the jury without the consent of appellant and after only a short deliberation. On this there is also conflict in the testimony.

Some time after'the jury was excused the court marked on his docket, “9-22-39, hung jury, to be tried at Graham”. There is also evidence of other docket entries and it is not clear whether these were made at the time the jury was discharged or at a later date.

It appears from the record that no order was entered dismissing the case and that it still stands on the docket of the Justice Court as filed. Art. 577, C.C.P.; Malley v. State, 125 Tex.Cr.R. 625, 69 S.W.2d 765. Another case was subsequently filed in the County Court on the same charge. Upon trial appellant was convicted and given a fine of $25.

The Justice Court had concurrent jurisdiction with the County Court, for which reason the case was improperly filed in the County Court, C.C.P. Art. 64. This being true, no question presented in the appeal will be further considered for the reason that they will not probably arise upon a trial in Justice Court, should one be had.

The case is reversed and ordered dismissed.


author: KRUEGER, Judge.

text:
    BUSTAMENTE v. STATE.
    No. 21047.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    R. R. Smith and Frank W. Steinle, both of Jourdanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of the offense of murder and his punishment assessed at confinement in the state penitentiary for a term of ten years.

By Bill of Exception No. 1 he questions the validity of the indictment upon which he was convicted of the offense therein charged. It appears that on or about the 9th day of October, A. D., 1939, the grand jury in and for Atascosa County was duly empaneled by the judge of the District-Court of said county at a regular term of said court; that on or about the 18th day of October, after having finished its labor, the court, by an order fully made and entered upon the minutes of said court, discharged said grand jury for the term. Thereafter, on the 24th day of October, 1939, the court entered an order re-convening the grand jury which had theretofore been finally discharged for the term and ordered that the grand jury be summoned to re-appear in court on the 25th day of October to perform further services as such grand jury. Only eleven of the-grand jurors re-appeared, and this indictment was found and returned by such grand jury composed of eleven men. The court failed to complete the panel as provided in Art. 372, C.C.P.

It is the appellant’s contention that he was indicted by an illegally constituted grand jury and that therefore his conviction upon a charge contained in said indictment is illegal and void. This same question was before this court in the case of Ex parte Bustamente, 137 S.W.2d 29, where the question here presented was fully discussed, and we see no need for again entering upon a detailed discussion thereof. A mere reference to the decision in that case is deemed sufficient for a disposition of this appeal inasmuch as we held in that case that the indictment was returned by an illegally constituted grand jury. In this case appellant was indicted by the same grand jury which returned the indictment in the case herein referred to.

From what has been said it follows that the judgment of the trial court be reversed and the prosecution is ordered to be dismissed.

PER CURIAM.

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


author: HAWKINS, Presiding Judge.

text:
    JOHNSON v. STATE.
    No. 21111.

    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Percy Foreman, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for burglary of a private residence at night, punishment being five years in the penitentiary.

The record contains no statement of fa-cts or bills of exception, save a number of exceptions to the court’s charge, and to the refusal of some special charges, none of which may be appraised in the absence of the facts.

The judgment is affirmed.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    BOULDING v. STATE.
    No. 20942.
    Court of Criminal Appeals of Texas.
    March 27, 1940.
    Rehearing Denied May 22, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for operating.an open saloon. The punishment assessed is a fine of $100.

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., p. 134-136; Burns v. State, Tex.Cr.App., 140 S.W.2d 175, decided by this court on March 27, 1940, but not yet reported in state reports. Moreover, the conviction was had for operating an open saloon. Furthermore, said recognizance 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. 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 Motion to Reinstate.

HAWKINS, Presiding Judge.

The appeal was dismissed on March 27, 1940 because of a defective recognizance. On April 11, 1940, appellant filed a motion to reinstate the appeal, stating therein that a properly approved appeal bond had been filed with the Clerk of the trial court, who was preparing a supplemental transcript to be forwarded to this court. No such supplemental transcript had been received when the motion to reinstate was submitted on May 8, 1940 and has not been furnished up to this time.

Therefore, the motion to reinstate is overruled.


text:
    ARMSTRONG v. STATE.
    No. 20998.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    H. R. Bishop, of Fort Worth, for appellant.
    Marvin H. Brown, Cr. Dist. Atty., and Dayton Moses, Asst. Cr. Dist. Atty., both of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for fifteen years.

Appellant challenges the sufficiency of the evidence. Prosecutrix, Pearl Gregg, was 18 years of age and belonged to the Salvation Army. She lived with Adjutant and Mrs. McNeiland in the City of Fort Worth. Ordinarily on Saturday nights, according' to her testimony, she went with Adjutant McNeiland and Samuel All-corn to the various beer taverns for the purpose of passing the tambourine in an effort to secure money for carrying on the work of the Sg-lvation Army in Fort Worth. During the night of May 6th she left her home about 10 o’clock with Cadet Burl Wyatt and Samuel Allcorn for the purpose of making her nightly rounds with the tambourine. The parties reached the Blue Bonnett Inn on North Main Street in the City of Fort Worth a little after midnight. Prosecutrix left the car- and entered the beer garden for the purpose of passing her tambourine among the patrons. Appellant was sitting inside the tavern. Pros-ecutrix testified that when she came to appellant with the tambourine he told her that he had gotten into trouble and asked prosecutrix to save him. She asked appellant if he was willing to kneel there and pray. Appellant insisted that they leave the building, saying that he didn’t want to be where people could watch him., Thereupon she preceded appellant and. they went outside to the right of the building to a tank. When they stopped they were under the light of a Neon sign. Music was being played in the tavern and the patrons were dancing. Also there was much talking going on. After stopping by the tank, prosecutrix asked appellant if he was willing to ask the Lord to save him, saying that all he had to do was to kneel down. Appellant insisted that they go farther back where no one could watch him. She replied: “There isn’t anyone around here watching you.” Appellant still insisted that they go farther back, and she said: “No, I do not intend to go any farther back. If you are willing to be saved you can kneel right here because the Lord can save you right here as well as farther back.” When she saw that appellant would not kneel she extended her hand,' saying, “I will pray for your before I go to bed.” Appellant grabbed her hand and started bending it back and dragging her toward the back of the tavern to a point where the Neon light did not extend. She endeavored to pull away from appellant, but he continued to bend her fingers to the extent that it caused her great pain. She testified that he pulled her three hundred feet. She said she thought he was going to break her hand. While pulling her to a place where there was high grass, appellant told her that it was his intention to have sexual intercourse with her. He told her if she said anything he was going to knock her out. After reaching the place where the grass was high, appellant started' disrobing her, at the same time bending her fingers back until she was in intense pain. She testified that she called one of her companions who had accompanied her to the beer garden and who had remained outside. She said: ' “I hollered ‘Sam’. I hollered loud.”

Appellant continued to bend her hand and forced her to the ground. After she had been forced to the ground appellant continued to hold her hand and got down on his knees and started taking his trousers off. She kicked him and- fought him. When he got on top of her she was kicking and fighting him, and bit him on the arm. Prosecutrix weighed 114 pounds. At this juncture we quote from the testimony of prosecutrix as follows:

“I have nervous fainting spells, some times I am out and some times I am not, but I can’t do anything when I have them. I felt I was going to have one of them, and I told him so, but he just started having intercourse then, and he asked me if it felt good. I told him no, he was about to kill me.
“He was trying then to make his male private part enter my female private part, but it had not completely entered when I went out. Just before I fainted I felt some pain in that particular portion. It was intense pain, and I told him he was killing me, but he kept asking me if it felt good.
“I don’t know how long I lay there before I came to. When I did, I tried to raise my head up and look toward the tavern to see If I could see anybody, but whenever I’d raise my head, he would push it back to the ground.
“When I came to he was on top of me, and his male private part was on the inside of me and I was feeling pain in that area.
“When I came to I yelled,‘Sam’. I kind of turned my head and I could see someone that had light trousers on out by the tavern, behind the tavern.
“When I came to his left hand was still bending back my right hand, and my hand v?as still in pain.
“When I yelled ‘Sam’, the defendant hit me beside the head with his fist, and said if I said anything he would knock me out. My glasses were knocked off and cracked, and after thatT had to have them straightened by Dr. Luck.
“When he hit me beside the head I went out then, and when I came to he was off of me and was, off a few feet. I don’t remember the boys running up there.
“After I saw someone in light trousers up there, and hollered ‘Sam’, I did not see anyone running down there. After I hollered, I first saw the boys over from me beating the defendant up. I jumped up real quick and said, ‘Sam, kill him’, and I started to find my - way back to the car. I was all excited. I tried to find the tambourine but couldn’t, so I started back to the car, and by the time I got there I was crying.
“I have stated that when I came to his male part was on the inside of me, and before I went out, he was trying to put it in.
“I did not consent to that particular act. I was not willing for him to do it, and I had never performed any such act before. All that period I was just scared to death.
“Prior to that time Dr. A. I. Goldberg had been waiting on me for my fainting spells. Last June I had an appendicitis operation, and I was in the hospital eleven days and in bed four weeks. When I got up my side was not healed up, and the doctor had to tape it together before it would grow together. I did not get strong quickly. I have always been inclined to be nervous, but it was not until after my operation that I had these fainting spells. Dr. Goldberg waited on me and treated me for that. I have been going to him pretty often for the last two years. It was June of 1938 that I had my operation.”

Dr. A. I. Goldberg, the physician who had charge of prosecutrix at the time she was operated on, testified that at the time he operated on her, which was about a year prior to the trial, she had a hymen. He’said: “We consider them virgins when they have a hymen.” Further, the testimony was to the effect that the doctor made an examination of prosecutrix in ten or eleven hours after the alleged assault. He testified that the hymen was torn, saying it was a fresh tear, and that there was some serum issuing from it. Further, he testified that he examined the right hand of prosecutrix and found that it was swollen. He said: “I considered it looked like it was pressed by a thumb. It was swollen on top. It was quite a noticeable swelling.” He testified that 'there was a slight discoloration on the left side of the head of prosecutrix. He said: “She complained of it being sore. That was right close to the temple.” It was his further version that prosecutrix had for several months been very nervous and that he had treated her for nervousness. We quote from his testimony: “I have found Miss Gregg to be a very nervous individual. In fact, I would say she is slightly emotionally unstable. By this I mean that if anything comes up she 'is apt to become extremely nervous and lose herself completely.”

The companions of prosecutrix testified to having gone to the beer tavern with her. When they heard her call “Sam” they ran to her assistance. Appellant was on top of prosecutrix. They pulled appellant off of her and struck him several blows. Appellant . said: “I know I shouldn’t have done it. I am sorry.” Prosecutrix said to one of them, “Sam, kill him,” and then she went back to the car. Prosecutrix was hysterical at the time. They led appellant inside and called for the officers. There was money scattered on the ground, which had come from the tambourine of prosecutrix. The tambourine was not near the money, .but appeared to have been kicked away in a scuffle. The money was scattered over quite an area, according to the version of one of the witnesses.

Appellant testified that the act of intercourse with prosecutrix was with her consent for a sum of money. Appellant introduced witnesses who testified that it appeared to them that prosecutrix willingly went to the place where the act of intercourse occurred. Stated in another way, it was their version that appellant did not drag prosecutrix to the scene of the alleged offense.

In his motion for new trial appellant alleged newly discovered evidence, and attached the affidavits of the witnesses. Testimony was adduced upon the hearing of the motion. The affidavit of the alleged newly discovered witness Emmett Godbey, which was attached to the motion for new trial, was to the effect that he had seen prosecutrix visit beer taverns on many occasions during the nighttime; that he had seen her flirt with patrons of the taverns; that he had heard her offer to make dates wherein money was to be paid for such dates. Godbey’s testimony on the hearing of the motion for new trial was, in substance, as follows: Appellant’s father had married a sister of the witness’ first wife. The witness saw prosecutrix at the beer tavern in February or March. Some of the patrons were “kidding her about her money,” and she told them she was trying to make a living. The witness said he would not be positive that he heard prosecutrix “proposition” any boys to make a date with them at Harper’s Place. The next time the witness saw prosecutrix was at the Lone Wolf Beer Tavern. He observed her pass her tambourine among the patrons and heard her talking to some of the hoys on the outside. He did not know who the boys were, but that he heard the boys ask her about making money. They asked her if she would go w-ith men or meet them. She replied that if there was any money involved she would. The witness said he could not name any person who was at the Lone Wolf on the night in question. The witness also saw prosecutrix at the Blue Bonnett Inn, which was another beer tavern, on two or three different occasions. On those occasions she was asked by men whom the witness did not know “about making a date,” and §he replied that she would be interested if there was any money in it, as there was very little money in what she was doing. The witness did not know whether she made a date with these people. The witness could not name or describe any of the men who had talked to prosecutrix. He had also seen prosecu-trix on Exchange Avenue. The affidavit was attached to the motion for new trial on the 19th day of July, 1939. At the time he was rooming in the house of Mrs. Beulah Clemons at S04 Grant Street, Fort Worth. After making the affidavit he left his rooming house and spent the night at the Huff Hotel in Fort Worth. He apparently registered under an assumed name at the Huff Hotel. After spending the night in the Huff Hotel, he went to Wichita Falls. He said: “I did not tell anyone where I was going when I went to Wichita Falls.” After spending one night in Wichita Falls he went to Wise County and stayed with a friend for six or seven days. He said: “I was not particularly keeping my whereabouts a secret, it didn’t make any difference. I couldn’t say whether any human being in Fort Worth knew where I was. * * * Nobody discovered and brought me back. I just took a notion to come home.”

The witness testified that he was adjudged of unsound mind in Hillsboro in 1934. It was his version, however, that he was sent to an institution to be treated for alcoholism.

It appears that the hearing on the motion for new trial was postponed from time to time until the presence of the witness could be secured.

We think the trial court was warranted in concluding, under the testimony adduced upon the trial, that the alleged newly discovered evidence of the witness Godbey would not likely change the result in the event of a new trial. In Branch’s Ann.P.C., Section 199, it is said: “If it is clear that the proposed testimony which is claimed to be newly discovered would not likely change the result, a new trial sought on that ground is properly denied.” It is conclusively shown by the testimony that prosecutrix was a virgin at the time she was assaulted by appellant. If she had the conversations the witness Godbey attributed to her, it is manifest from the record that she had at no time prior to the assault by appellant had sexual relations with men. If she went from beer tavern to beer tavern making suggestions to the patrons of those places, in effect, thát she would be willing to have sexual relations for a price, it is passing strange that every man to whom she talked must have rejected her proposition, and left her untouched. We think that there was no abuse of' discretion on the part of the trial judge in overruling the motion for new trial in so far as it was based upon the newly discovered testimony of Emmett Godbey.

Appellant also attached to the motion for new trial the affidavits of two young ladies who were sitting in an automobile near the scene of the assault. Their affidavits were to the effect that appellant did not drag or pull the prosecutrix from the tank mentioned in the testimony to the point where she was assaulted. The testimony of these witnesses would have been cumulative of the testimony of J. W. Tanner and C. W. Howell. J. W. Tanner testified that he saw prosecutrix during the entire time she was near the tank and saw her when she started to leave. It was his version that he, at no time, saw prosecutrix pull back as she and appellant left the tank to go to the point where the assault took place. C. W. Howell said, “I did not see this boy grab that girl and they were in plain view of me, and when they were angling toward the packing house, I did not see this boy drag her. They were close together and he might have had hold of her. I saw no struggle of any kind, did not see this boy pushing or pulling, and saw no act on the part of that girl indicating a want of desire to go> with him. I could not see their hands. I at no time saw this boy force her hand back up as far as her shoulder while they were taking that walk out there.” In short, it was the version of the witness that he saw nothing on the part of prose-cutrix to indicate that she unwillingly accompanied appellant to the scene of the assault. Another witness''for the appellant gave testimony upon the trial substantially the same as that which the alleged newly discovered witnesses would have given. However, this witness was impeached by the state and we do not take his testimony into consideration in determining whether the rule governing cumulative testimony should be held applicable to the testimony of the young ladies whom it is alleged were newly discovered. We quote from Branch’s Ann.P.C., Section 203, as follows : “As a general rule where it appears that had the proposed new witness testified on the trial his testimony would have been merely cumulative of that adduced on the trial, it affords no ground for granting a new trial as newly discovered testimony.” We think the quoted rule applicable and therefore express the opinion that the trial court was warranted in overruling the motion for new trial in so far as it was based upon the proposed testimony of the young ladies in question.

The judgment is affirmed.

PER CURIAM.

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


text:
    ZEPEDA v. STATE.
    Na. 21044.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Robert D. Peterson, of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s first complaint is that the trial court erred in declining to instruct the 'júry to acquit him. He bases his contention upon two grounds: First, because there is a variance between the allegations and the proof. In the indictment, it is charged that appellant burned the house of Tony Verecruz, and the proof shows it to. have been the house of Antonio Veracruz. However, there was ample proof to show that while the owner’s given name was Antonio, he was knowp and -frequently called Tony. We are of the opinion that the letter “e” after the letter “r” 'in his surname instead of the letter “a” is unimportant, inasmuch as the names are. idem sonans. See Rape v. State, 34 Tex.Cr.R. 615, 31 S.W. 652; Branch’s Ann.Tex.P.C. Secs. 22 and 23.

Second, because the State has failed to prove the corpus delicti. After a careful examination of the record, we are inclined to agree with him. To establish the corpus delicti in arson cases, it is necessary to show (a) that the house was designedly set on fire, and (b) that the accused did it or was criminally connected therewith. Now, let us see just how the State sought to comply with the requirements of the law in this respect. First, by offering in evidence an extra-judicial confession which appellant repudiated in all of the material parts. Second, that He was seen at or near the houáe some five or six hours prior to the time the fire was discovered, and third, by the evidence of some Mexican woman at whose house he appeared in the early part of the night. The State undertook to prove by this Mexican woman that on the night in question the appellant came to her home and borrowed a bottle of coal oil. She failed, however, to so testify. She was then asked if she did not so state to the grand jury. This she denied. Thereupon the State claimed a surprise, and the District Attorney took the witness-stand and testified, without objection on the part of the appellant, that she gave such testimony before the grand jury. The impeachment of the witness did not get the State out of the serious situation into which it was led by its own witness. All the State has in this case is a house destroyed by fire, appellant’s extrajudicial confession, and the additional facts hereinabove detailed. Where is the evidence that the house was set on fire designedly with the purpose .of destroying it? None except the alleged extra-judicial confession. The fact that appellant may have been standing near the house in the early part of the night with no further fact that he did something which showed an evil purpose or design to burn it is not sufficient. The testimony of the District Attorney as to what the State’s witness told the grand jury relative to the accused asking for coal oil does not show any connection between the coal oil and the. burning of the building. No witness testified how, or in what part of the building, the fire started, nor' did any one testify to having smelled any coal oil or found any containér which-bore any evidence of . having Contained Coal oil. All the circumstances, independent of the confession, are as consistent with' the absence of any offense as with the ‘ perpetration thereof. The fact that a building was destroyed by fire does not of itself show that the crime of arson ‘ was committed by some one. There is no evidence, independent of the confession, that the fire was of incendiary origin. See Hernandez v. State, 110 Tex.Cr.R. 159, 8 S.W.2d 947; Duncan v. State, 109 Tex.Cr.R. 668, 7 S.W.2d 79, and authorities there cited.

From what we have said it follows that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    CARROLL v. STATE.
    No. 21002.
    Court of Criminal Appeals of Texas.
    May 8, 1940.

      F. L. Henderson, W. R. Allen, and Coulter Hoppess, all of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of robbery and assessed a penalty of eight years in the penitentiary by a jury in the District Court of Brazos County.

The indictment is for the robbery of J. T. Longbotham in Brazos County on the 18th day of August, 1939. Waltis Price was also indicted as a participant in the same robbery. Longbotham, who had -been drinking and was in his car at night time, was joined by appellant and Price in or near Brya’n on the date of the robbery and, after proceeding out on Highway No. 21 for some distance, it is alleged that they robbed Longbotham of $38. The next morning he was found sitting in his car on the side of the road in an unconscious condition, having been struck on the head and wounded. Parties who found him there reported to the sheriff, who went out to investigate. As Longbotham was aroused, he slapped his hands on his purse and' exclaimed, “Boys, they robbed me!” Appellant and Price were soon thereafter arrested in a rooming house in town, but not in the same room. Price was taken into custody and questioned about the matter in the absence of appellant. He told the story of the robbery and, upon being asked where the money was, he led the officers to a place out in the country where it had been hidden in a sand pile and the money was recovered.

Appellant presents his bill of exception number one, complaining of the admission in evidence, over his objection, of the statement of the injured party to the officer, Horace Reed, to the effect, “Boys, they robbed me!” In this bill it is set out that it is “highly prejudicial” and “though withdrawn from the jury the effect of the same is nevertheless highly prejudicial”. The court approved this bill, together with that statement, as did the prosecuting attorney.

By bills of exception numbers two, three, and four objection is made to the testimony of J. W. Hamilton, admitted over the protest of appellant, detailing statements made to Hamilton, a deputy sheriff, while Price was under arrest and in the absence of appellant. The bill sets out that the “court erred in admitting said evidence” and that “the testimony was highly prejudicial”. Similar statements are found in each of said bills of exception, all approved by the prosecuting attorney and the court.

The apparent effect of these bills is a certificate by the trial judge that he committed error.

Bill of exception number five complains of the evidence of Henry Kountz, also a deputy sheriff, who stated that Price told him that both he (Price) and appellant struck Longbotham. This statement was made in the absence of appellant and, like the other bills above referred to, it is-certified and, although the court on the following day withdrew the evidence from the jury by a charge, “the harm and the-prejudice had been done, and the court could not correct his error”.

We think the court’s certificate in each case certified error to this court requiring a reversal and this position is sustained by the authorities. Furthermore, the bills, independent of the statement, show error, except the first.

The appellant received a sentence- • of eight years, which is not the lowest penalty. The most radical view that might be taken from the standpoint of the prosecution is that it is doubtful whether or not the testimony of the sheriff, as well as that of the deputies was harmful. If there is any doubt on the subject it is the duty of the trial court to resolve that doubt in favor of the party on trial, and it is our duty to resolve it in favor of the appellant in this case. Ulmer v. State, 106 Tex.Cr.R. 349, 292 S.W. 245; Daniels v. State, 107 Tex.Cr.R. 554, 298 S.W. 600.

The statement by co-defendant Price as to what he did and the acts of appellant joining with him was followed by the finding of the money. It was admissible against Price, but, being made after the commission of the offense, was not admissible against his co-principal. It was no part of the res gestae and was hearsay as to appellant. 18 Tex.Jur. par. 126, page 218; Bouldin v. State, 87 Tex.Cr.R. 419, 222 S.W. 555; Millner v. State, 72 Tex.Cr.R. 45, 162 S.W. 348; Rains v. State, 94 Tex.Cr.R. 576, 252 S.W. 558.

The sustaining of these bills of exception renders it unnecessary to discuss the other errors complained of. The case is reversed and remanded for a new trial.


text:
    PADGETT v. STATE.
    No. 21037.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    R. Tuck Chapin, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for murder, punishment assessed being 99 years in the penitentiary.

The record fails to show any notice of appeal, which is necessary to confer jurisdiction on this court. See Art. 827, C.C.P., and cases cited under said article, Note 1, Vernon’s Ann.Tex.C.C.P.

The appeal is dismissed.


text:
    BLACKSTOCK v. STATE.
    No. 21055.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Hubert T. Faulk, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The record in this case is before us without statement of facts or- bills of exception. Furthermore, it contains the court’s charge to the jury and a motion for a new trial, but there is no jury verdict; no judgment entered thereon and no notice of appeal. Consequently, this court has no jurisdiction of any matter involved.

The appeal is dismissed.


text:
    SMITH v. STATE.
    No. 20981.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Jesse E. Roach, of Greenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Rockwall County upon a complaint and information alleging the unlawful possession for the purpose of sale in a dry area an alcoholic beverage containing alcohol in excess of one-half of one per cent by volume and not more than four per cent by weight. His punishment was assessed at a fine of $100.

On the 29th day of September, 1939, two inspectors for the Liquor Control Board, in company with the County Attorney of Rockwall County, armed with a search warrant, entered the premises of' the appellant, known as Smith’s Cafe, in Royse City,- and recovered thirty cans of Black Dallas and Pabst beer. According to the testimony of one of the inspectors, eight cans of the beer were “iced down” in a bucket or foot tub arrangement under a Coca-Cola box in the front part of the cafe; three cans were found in the back in an ice box- and eighteen cans were found under the counter in a little compartment. On cross-examination the witness said that there were “twenty-one cans of Pabst and nine of Black Dallas”.

Robert Mers, a chemist for the Texas Liquor Control Board, testified that he analyzed one can each of the Black Dallas and Pabst beer which have been delivered to him personally by the two inspectors in question. From his testimony we quote: “As a result of my analysis, the Pabst beer showed the per centage of alcohol by volume to be 4.25 and weight 3.40; the Black Dallas showed percentage of alcohol by volume to be 4.15; by weight, 3.32.”

An employee claimed a part of the beer as his own. Appellant denied having sold any beer, but claimed he drank it under the direction of his physician. His wife also was a constant user of the beverage and their appetites differed. One brand .found there was for himself and the other for. the wife.

The appellant testified upon the trial and said that he was convicted about a year previous to the present transaction for having beer in his possession for the purpose of sale. He explained his possession of the beer with the statement that he had been drinking beer for thirteen or fourteen years upon orders from his doctor; that the malt and yeast in the beer kept him from being constipated, and flushed his kidneys, which caused his rheumatism. He testified that he never sold any beer, but kept it only for his own use; that on the day of the alleged search, he had twenty-one cans in his possession; that the extra nine or ten cans found on his premises were placed there without his knowledge and consent. Appellant also testified that he bought “near-beer” for his wife; that the, Black Dallas beer was purchased for himself and the Pabst for his wife:

One of appellant’s main contentions for reversal of the case is founded upon the overruling of his motion for continuance. We have examined this motion and conclude that it presents matters within the sound discretion of the trial court and we are unable to see from the record that he abused this discretion in overruling the motion.

Appellant’s bill of exception number-three is without merit, as is his bill of exception number five.

An employee .of appellant testified that he placed ten cans of the beer in question, in the house without the knowledge of appellant. Appellant testified he did not know this beer was on the premises and that it did not belong to him. This raised an affirmative defense which the court was requested to present in an affirmative manner in his charge. This the trial court refused to do. We think appellant was entitled to a charge similar to that requested, properly presenting the issue raised by this evidence. Ezell v. State, 136 Tex.Cr.R. 84, 124 S.W.2d 146, with authorities there cited.

The other bills of exception are overruled.

For the error stated, the cause is reversed and remanded for a new trial.


text:
    WRIGHT v. STATE.
    No. 21064.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Willis & Via and John F. Studer, all of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is the unlawful and fraudulent reception of stolen property. The punishment assessed is confinement in the state penitentiary for a term of t.wo years.

The only question presented by this record’which we deem necessary to discuss is the sufficiency of the evidence to establish the theft of the property alleged to have been received and concealed. It appears from the record that on or about the 28th day'Of November, 1938,'L. S. Dixon owned a-red white-faced cow weighing approximately 1,100 pounds and branded with an anchor oh the right hip. This cow was a “fence breaker” and Dixon, with a view of keeping her confined within his premises, had placed a yoke on her neck to prevent hér from going through the fences, but notwithstanding this, she managed to get into .the Dickenson pasture or field, of which Albert Daily was in possession at the time. Dixon saw his cow in the Dick-enson pasture .'or field and made arrangements with Daily for the cow to remain .there until he, Dixon, came after her. This cow disappeared from the Dickenson premises but about the 12th day of December she was, found on Myers’ premises.

J. P. Rogers testified, on behalf of the State that about Thanksgiving Day .in the year, 1938, he and Roy Roper went to the Dickenson place to get a horse which belonged to Bill Erts; that at the Dickenson place they found Allen Daily; that while there they drove a red white-faced cow, weighing about, 1,100 pounds and branded on the íeft hip with some branij which they could not decipher, into the corral and then placed her in a barn and locked the doors. They then loaded Erts’ horse into a truck and the three boys went back to the town of Darrouzett, and from there Rogers delivered the horse to Erts. Rogers, Roper and Daily went back to the Dickenson barn about night time and loaded the cow iñ a pick-up and brought her to town; that after reaching town, Daily and Roper got out of the truck and Rogers drove away with the cow. He took her to the appellant’s premises and there unloaded her. Appellant came out to the barn with a flashlight and they both made an examination of the brand on the cow but could not decipher it. This was a brand on the left hip. Rogers testified that appellant .asked him how much he wanted for the cow, to which he, Rogers, replied forty dollars, but appellant declined to purchase her at that price. A day or two later Rogers went back to the appellant’s home, at which time appellant offered him thirty dollars for the cow, which sum was accepted by Rogers and for which amount appellant handed him a check which Rogers immediately took to the bank and deposited it. It further appears from the record that Rogers did deposit thirty dollars in the bank on the 3rd day of December, 1938.

Daily and Roper both testified to the theft of the cow but neither one knew to whom Rogers had sold her, if in fact he had sold her to any one. No other fact or circumstance to corroborate the thieves as to the stealing of the cow or the sale and delivery thereof to the appellant was introduced. No one seems to have seen the self-confessed thieves or the appellant in possession of the cow.

It is obvious that the State relied for a conviction upon the testimony of the accomplices, or rather the accomplice Rogers. It is a well-established and recognized rule in this state that upon the trial of a person charged with receiving stolen property, where the State relies upon the testimony of an accomplice witness, it is essential to a conviction that there be corroboration of such testimony, both as to the theft of the property and the acquisition thereof by the accused with knowledge of the theft.

In the case of Hanks v. State, 55 Tex.Cr.R. 405, in fact page 407, 117 S.W. 149, page 150, Judge Davidson made the following statement: “It is a correct proposition that Tom South should be corroborated, both in respect to the theft and as to the receiving of the stolen property; and it is also a correct proposition that no statement or declaration made by Tom South can corroborate his testimony.”

In the case of Poon v. State, 120 Tex. Cr.R. 522, 48 S.W.2d 307, 308, this court, in discussing the necessity of corroborating an accomplice witness, used the following language: “The charge failed to advise the jury that the accomplice witnesses should be corroborated both as to the theft and as to the receiving of the stolen property.” See Johnson v. State, 42 Tex.Cr.R. 440, 60 S.W. 667; Clark v. State, 131 Tex.Cr.R. 1, 95 S.W.2d 1309.

This being a well-recognized rule in this state, it was necessary for the State, in the instant case, not only to corroborate the accomplice as to the reception of the stolen property by appellant with knowledge that it was stolen but also to corroborate the accomplice witness as to the theft of the property. So far as this record shows, outside of the testimony of the accomplice, the appellant never was in possession of the cow; nor is there any evidence outside of that of the accomplice that the cow was ever stolen. Therefore, the conviction in this case cannot stand.

There are some other matters in the case which present some serious questions, but we do not deem it necessary to discuss them in view of the disposition we are making of this case.

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

PER CURIAM.

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


author: SPEER, Justice.

text:
    CLOUD et al. v. CLOUD et al.
    No. 14065.
    Court of Civil Appeals of Texas. Fort Worth.
    April 5, 1940.
    Rehearing Denied May 3, 1940.

      Fred T. Arnold, of Graham, Guy Rogers, of Wichita Falls, and Robert Lee Guthrie, of Dallas, for appellants.
    E. G. Thornton, of Olney, and Marshall & King and Penix & Penix, all of Graham, for appellees.
   SPEER, Justice.

At the October, 1933, term of the County Court of Young County, Texas, the last will of Mrs. Nannie A. Cloud, deceased, was admitted to probate.

On December 30, 1938, Mrs. Addie C. Buford, for herself and as next friend of Tate Cloud, a person of unsound mind, filed in the Probate Court of Young County a petition contesting the validity of the will of Mrs. Nannie A. Cloud, and sought to have the probate proceedings had therein set aside. The grounds alleged were to the effect that the will so entered for probate was void, because it had been executed by testatrix under duress of her son, Jesse W. Cloud; that the said Jesse W. Cloud had exercised an undue influence over his mother, the testatrix, to such an extent that the will did not speak the true desires of testatrix, but was executed by her at the instance of said son, because of fear for her own safety at his hands. Allegations were made that Tate Cloud, for whom Addie C. Buford appeared as next friend, was adjudicated to be of unsound mind and had been committed to the asylum shortly after the said will was admitted to probate, and had not subsequently been mentally competent to maintain a suit for the purposes therein set out.

Jesse W. Cloud, Eula Peacock, Ernest Poer, Florence Moore and husband, J. H. Moore, David Poer, Jesse Poer, Lorena Mitchell, Faydelle Poer, Mildred Poer, George Eidson, Jimmie Fay Gleghorn and husband, Bill Gleghorn, Ida Lee Shaw, Minnie Worrell, Arlton Show, Claude Worrell, Wayne Eidson, G. W. Eidson, Inez Eidson, Irene Eidson, R. B. Tidwell and J. B. Nehls were named as defendants and alleged to be the children and grandchildren of. testatrix.

Jesse W. Cloud and certain other defendants answered by general denial, special plea of limitation and of res judicata (because of the decree of the probate court at the October 1933 term, from which no appeal was taken).

Other defendants appeared and answered through their respective attorneys pf record, pleading the general issue.

A jury trial was demanded and -after a very elaborate definition of “undue influence” was given by the court (of which no complaint is made), a single issue was submitted, which reads: “Special Issue No. I. Do you find from a preponderance of the evidence that Mrs.- Nannie A. Cloud was induced to make and execute the will in question and the provisions thereof, by undue influence of Jesse Cloud?” The jury answered, “No.”

Judgment was entered on the verdict against plaintiffs in the capacity stated, from which, this appeal has been perfected. The parties will carry the same designation here as in the trial court.

Under appropriate assignments of error, the appeal is .based upon three propositions. They are, in effect, (1) the court erred in admitting in evidence over plaintiffs’ objections, -certified copies of parts of a lunacy hearing against Addie Buford, had in Dallas County, in 1917; (2) the court erred in refusing to grant plaintiffs a new trial, upon motion therefor, when it was shown that the judgment of the court entered at said lunacy hearing was - one discharging the accused; and (3) because the court erroneously permitted, over the objection of plaintiffs, a party defendant to testify concerning transactions had with testatrix in violation of Article 3716, R.C. S.

As against plaintiffs’ propositions 1 and 2, defendants contend that no error is shown for the reasons, (a) there ‘ was no evidence before the court tending to raise the issue of undue influence, and therefore no issue should have been submitted, but that an instructed verdict should have been given for defendants at the conclusion of taking testimony, and (b) that more than four years had elapsed since the probate of Nannie A. Cloud’s will, when the contest was filed, and that the requested peremptory instruction should have been given.

We think it proper to just here dispose of the contention that a peremptory instruction should have been given for defendants because more than four years had elapsed since the will was admitted to probate.

An action to probate a will is an action in rem; the judgment is binding on everybody until revoked or set aside. Masterson v. Harris, 107 Tex. 73, 174 S.W. 570.

By Article 5534, R.C.S., it is provided that any person interested in a will may institute proceedings to contest it at any time within four years after the -v)ill has been admitted to probate and not afterward.

By Article 5535, R.C.S., it is provided that the limitation named in the preceding article does not apply to persons who at the time the cause of action accrues is a minor, or a person of unsound mind, and other classes named. “The time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.”

It is indisputably true that in this case some of the defendants were minors at the time the suit was filed. Those minors, along with other adult defendants, by their answer; joined plaintiffs in their prayer to the court to set aside the probate of the will. In their pleadings they asserted that they did not know the facts surrounding the execution of the will, but asked that the allegations of plaintiffs be determined by the court and if found true, that the probate be set aside.

Tate Cloud, one of the original plaintiffs, acting by his next friend, was shown to be an insane person. The record discloses that he had been twice adjudicated insane, once in 1935, and again January 27, 1938.. The record of the testimony in the last hearing discloses a finding that he had been insane for five years. If it was true, as found by the jury, that he was insane five years before the hearing, then he was insane when the will was probated in 1933, and limitation would not apply to him. However, we find it unnecessary to determine his status since the contest inured to the benefit of the minors referred to.

No instructed verdict should have been returned, because the minors were entitled to prosecute the contest, and if they should succeed the will would be a nullity and its probate revoked. In such circumstances the estate would not pass under the purported will of Nannie A. Cloud, but by the law of descent and distribution. The fact that some persons other than the minors and perhaps the insane one, were barred by Article 5534, supra, would not prevent them receiving the benefit of a general judgment of the court setting aside the probate, if such one should be entered. Masterson v. Harris, supra; Buchanan v. Davis, Tex.Civ.App., 43 S.W.2d 279, affirmed by Commission of Appeals and opinion adopted by Supreme Court, 60 S.W.2d 192.

In all other respects there was ample evidence of probative force adduced upon the trial to raise the issue of undue influence. True, it was all disputed, but it is only when evidence is disputed or contradicted that an issue ever arises for submission to the jury. In City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652, 654, the Supreme Court approved the following statement of the law: “The evidence must be construed in the light most favorable to the party against whom the peremptory instruction was given.” Upon .the trial below, defendants introduced the petition of plaintiff, Addie C. Buford, filed in an earlier contest of the. will involved here, but which suit was subsequently abandoned. In that petition substantially all allegations of , undue influence by Jesse Cloud upon the testatrix were made that are found ⅛ the. present suit. At the time of the introduction in evidence of that petition, no limitation was put upon it for any particular purpose. It is now claimed that the only purpose for .which it' was introduced was in support of defendants’ 'plea of res judicata, but no such expressed purpose appears in the record. Absent such a limitation, the document was in evidence for all purposes. Defendants are before us saying now that there was no evidence of undue influence. The petition introduced in evidence by them refutes this contention and it may be considered as a circumstance against them. Texas & N. O. R. Co. v. Patterson & Roberts et al., Tex.Civ.App., 192 S.W. 585; McClung Construction Co. v. Langford Motor Co., Tex.Civ.App., 33 S.W.2d 749; 10 R.C.L., p. 1098, § 289.

There was other evidence, if considered in its most favorable light to plaintiffs’ contention, upon which a jury could have found for them. Mrs. Buford testified that defendant, Jesse Cloud, had told her that he had filed a partition suit in his mother’s (testatrix)' name and that he was going to handle the case; that as soon as he got that partition, his mother was going to make a will, and leave Tate (the insane plaintiff) out of it; that Mrs, Buford said maybe their mother would not make such a will and defendant, Jesse Cloud, said: “Oh, yes, she will, there isn’t but one way to handle a woman and that was to tell her what to do and see that she does it.” •Mrs. Tyra, a sister-in-law to testatrix, but having no interest in the estate, either by inheritance or under the will, testified that she had known testatrix fifty years and had visited in her home often; that about two months before her death she told witness that she (testatrix) just had to make her will, that her life was in danger; that when witness went to leave, testatrix said she would not stay there any longer; that, “He will just beat me and he has pulled me around over the place by the hair.” Witness remonstrated with testatrix, telling her that she just imagined such things. Witness said that Jesse Cloud was the only son at home; that Mrs. Cloud had never expressed in witness’ presence any more love for Jesse than for her other children; she apparently loved them all, just like any other mother; Jesse Cloud had remained at home and cared for the place and Mrs. Cloud depended upon him and he on her; the mother paid the bills.

Mrs. Buford, one of the plaintiffs, testified that her sister, Mrs. Peacock, one of the defendants, told her about two years before their mother’s death that the mother had made a will and that Jesse Cloud would not let her (Mrs. Peacock) go with testatrix to the office where the will was to be signed, and that she (Mrs. Peacock) remained outside and when testatrix came out she said, “Jesse made her sign a paper and she didn’t know what it was.”

Other testimony is in the record to the effect that testatrix loved Tate Cloud (the insane plaintiff) better than she did her other children, but when Jesse Cloud was present she would not talk about him, or show her affections for Tate when Jesse was present.

Mrs. Buford testified that her brother, Jesse Cloud, drove their sister away from home and she committed suicide; that shortly before Tate Cloud left home, his brother Jesse beat him up; Tate went to Colorado and later to Kansas, got into trouble and went to the (penitentiary from that state; that he had always been an epileptic and was finally adjudged insane and sent to the asylum.

By the will of testatrix, after all debts were paid, she gave to Mrs. Peacock and Mrs. Eidson, two of her daughters, each the mineral rights under 100 acres of land, and to Jesse Cloud the residue of her estate, including real and personal property; it appears that the estate consisted of about 700 acres of land, nine cows and other personalty, including $5,000 in cash.

Upon the testimony above referred to, the trial court concluded that an issue of undue influence was raised and properly, we think, submitted that question to the jury.

In Russell v. Boyles, Tex.Civ.App., 29 S.W.2d 891, writ dismissed, it was held that undue influence can seldom, if ever, be established by direct evidence, but is usually shown by circumstances. In Moore v. Horne, Tex.Civ.App., 136 S.W.2d 638, it was held that if the circumstances shown by the evidence are sufficient to raise the issue, the general rule is that the jury must draw its own reasonable conclusions from them.

This brings us to a consideration of plaintiffs’ propositions, wherein they claim (1) that the court erred in admitting in evidence parts of the record in a lunacy proceeding in Dallas County against Addie Buford, and (2) when it was made to appear on motion for new trial that the accused was discharged by judgment entered, the court should have granted the motion in this case.

We sustain these assignments and must reverse the case for the error shown. We shall only discuss the first proposition, since in the view we take of the matter the second will become immaterial.

The background behind this case presents a situation which we think emphasizes the significance and effect of the evidence complained of. Here we have an old couple who, by diligence and thrift, had accumulated 1400 or 1500 acres of land in Young County, some livestock and apparently a competency of this world’s goods. They reared seven children to maturity and insofar as is disclosed by the evidence, none were estranged from either of their parents. The husband died in 1902 or 1903; the mother died in 1933. During the mother’s widowhood, the land had a potential value for oil and gas purposes and thereby enhanced the value of the estate. One by one the girls married and left home; an unmarried girl committed suicide The youngest boy, Tate Cloud, was afflicted with something like epilepsy; he could not get along with his older brother, at home, Jesse Cloud, and left to seek his fortune in another state; he got into trouble and was sentenced to the penitentiary, and having served his sentence, returned to Texas, became insane and was committed to an asylum. A daughter, Mrs. Addie C. Buford, one of the plaintiffs here, had domestic trouble, and her husband procured a divorce in Mexico; she held a judgment against him for more than $20,-000. She, for herself and in behalf of the insane brother, instituted this suit against all other members of the family, to set aside the probate of the mother’s will. Certain of the defendants were beneficiaries under the will, while other defendants and the two plaintiffs were not.

After Addie C. Buford had given her damaging testimony concerning the conduct of Jesse Cloud, who is charged with having “unduly influenced” testatrix to execute the will in controversy, she was asked by opposing counsel if she had ever been tried in Dallas or in any other place for insanity, to which she answered in the negative.

Defendant offered in evidence certified copies of documents shown to be the complaint in lunacy against Addie Buford charging insanity, sworn to by M. G. Kennedy on May 4, 1917; the report made by the commissioners appointed by the court to investigate the charge showing that Addie Buford was of unsound mind, that she should -not be placed under restraint or treatment and that under a general summary it was found that the extent and duration of respondent’s mental unsoundness was “neighborhood row”; this was signed by the commissioners, all appearing to be physicians; they also introduced what purported to be an application 'for admission of respondent to the asylum at Terrell, Texas, signed by J. C. Buford, but the signature shows to have been changed so as to read, “J. E. Buford.”

The plaintiffs objected to the introduction in evidence of those documents upon the ground that they were irrelevant, immaterial and shed no light on any issue in the case, and if offered for impeaching purposes, the point is immaterial and the witness could not be impeached upon an immaterial matter.

In the first place, the whole proceeding in the Dallas Probate Court was void and for that reason it became irrelevant and immaterial as to what was done. Under the statute (Acts 33d Legislature, Chapter 163, p. 341) effective at that time, no trial in such matters was provided for; upon an affidavit made and filed, the county judge appointed a committee, the members of which in such counties as Dallas, should all be physicians; they were commanded to make an investigation and to report to the court the result thereof. The law, as it then existed and under which the proceeding was had, was held by the Supreme Court to be void. White v. White, 108 Tex. 570, 196 S.W. 508, L.R.A. 1918A, 339. The witness said that she had never been tried for lunacy. Her answer was not contradicted by the documents offered, since no trial was provided for by the Act, and none is shown by the documents to have taken place. It is not at all improbable that she was unaware that such an affidavit had been filed or that an investigation had been made by the Commission of physicians. Their report summarized their findings upon the nature, extent and duration of respondent’s mental unstmndness, as a “neighborhood row”. We respectfully pretermit a discussion of whether or not the participants in a neighborhood row are mentally unsound; we think it unnecessary to pursue the thought farther.

In the next place, such an inquiry of the witness could only be pertinent to her competency. The competency of a witness, wheher based upon immature years, lack of discretion or because he may have been adjudged insane twenty years before he offers to testify, is a matter addressed to the sound discretion of the trial court after being apprised of all the facts. It presents a question close akin to those involved in matters of the credibility of the witness, of which the jury is the exclusive judge, yet there are differences which will invoke the discretion of the court. 70 C.J. § 121, p. 91, and § 123, pp. 94 and 96.

We can only see in the matter raised an attack on the credibility of the party witness, Mrs. Buford, in an effort to destroy the effect of testimony given by her upon the issues properly in the case. She had said she had never been tried for lunacy. Defendants apparently thought that if they could discredit that statement in the minds of the jury, naturally it would have a tendency to weaken other testimony given by her.

The rule is well settled in this. State that a witness may not be impeached on an immaterial matter; nor may he be questioned on cross examination about immaterial matters as a predicate for his impeachment. A witness need not only be prepared to answer inquiries about matters at issue; the rule does not go so far as to. permit inquiries to be made concerning outside matters and then if the answer is unsatisfactory to the questioner, that he may offer extrinsic evidence to contradict or impeach the witness so questioned. In 45 Tex.Jur., § 193, p. 27, the rule is stated in this language: “* * * Neither in civil nor criminal cases may a witness be contradicted as to immaterial testimony, his answer to questions on cross-examination directed to such testimony being conclusive. For the contradictory testimony would, at most, tend to show thát the witness had been guilty of falsehood as to some matter immaterial to the case on trial; the hearing would be unduly protracted if testimony were allowed to bé directed into such by-paths; and a witness is not expected to be prepared to meet charges of having made inconsistent statements as to immaterial matters.”

Can it be said with certainty that in this case where plaintiffs lost their case that the admission in evidence of the documents was not harmful to their rights ? In Bell v. Blackwell, Tex.Com.App., 283 S.W. 765, adopted by the Supreme Court, the doctrine of “harmless error” was fully discussed. In that case assigned error of improper argument of counsel was being considered. Court said, at page 767 of 283 S.W.: “If the rule of practice -in such a case is not already settled by the authorities, it should be settled now.” It was held that the contention made by counsel in that case that, “to authorize a reversal on account of error, there must be a finding of prejudice”, is contrary to the prevailing rule of decisions in the State. Again, the court said, on same page: “What difference can it make if the jury considers something it should not consider, whether it be through, an improper ruling of the court, the impassioned argument of counsel, or the clandestine receipt of information outride the courtroom? The nature of, the error is the same, and the consequences to the injured party are identical,in each case. There are not different rules of reversal based upon any such fanciful classification of error.” The final determination of that court as a correct rule' for the future was announced in this language: “* * Unless it affirmatively appears no prejudice resulted, or that there was no reasonable doubt of the harmless effect of the error, a reversal must follow.” The case cited and from which we have quoted has been cited with approval more than a hundred times since its publication. The error pointed out in the admission of the documentary evidence was not harmless. The improper evidence was at least calculated to affect the verdict to be rendered upon highly controverted issues, and what better evidence could be produced to its harmful effect than that the jury resolved the issue against plaintiffs. The assigned error is sustained.

The third proposition urged by plaintiffs, as shown above, complains of the introduction of testimony by a party defendant in violation of Article 3716, R.C. S. Mrs. Jimmie Fay Gleghorn was a party defendant as disclosed by the pleadings; she, with defendant Jesse Cloud, answered and resisted throughout the trial of the case, every phase of plaintiffs’ contentions; she did not, as .did other defendants so designated by plaintiffs’ petition, join plaintiffs in an effort to set aside the probate of the will, but sought to have it sustained. Mrs.. Gleghorn was shown by the evidence to be a daughter of Mrs. Eid-son, a daughter of testatrix and a beneficiary under the will. She was represented at the trial by the same attorneys who represented Jesse. Cloud. She was called by her counsel to testify and not by plaintiffs’ or by counsel for either of the other defendants who had joined plaintiffs in an effort to have the probate of the will set aside. True, her interest in the estate was not identical with that of her co-defendant, Jesse Cloud, or that of any other defendant, except her brothers and sisters who, like she, inherited from their deceased mother, the named beneficiary. Mrs. Gleghorn, under this state of the record, was permitted, over plaintiffs’ objection, to testify concerning transactions had between her and testatrix. This was in violation of the provisions of Article 3716, supra. The assignment must be sustained.

For the errors pointed out, the judgment of the trial court will be reversed and the cause remanded. It is so ordered.


author: WALTHALL, Justice.

text:
    WAPLES PLATTER CO. et al. v. MILLER et al.
    No. 3971.
    Court of Civil Appeals of Texas. El Paso.
    March 7, 1940.
    Rehearing Denied March 28, 1940.
    A. M. Herman, William M. Brown, and Samuels, Foster, Brown & McGee, all of Fort Worth, for appellants.
    A. T. Folsom, of Wink, for appellees.
   WALTHALL, Justice.

This case presents an appeal from an order of the County Court of Winkler County overruling and denying a motion to dissolve a temporary injunction.

B. D. Miller, Mrs. G. F. Elliott and T. V. Elliott, plaintiffs, brought this proceeding against defendants, Waples Platter Company, a corporation, domiciled in Tarrant County, Texas, and E. G. Butler, who resides in and is constable in Winkler County, to restrain and enjoin defendants from proceeding with any levy upon or seizure or sale of any property of plaintiffs under or by virtue of any execution based upon the judgment in plaintiffs’ petition, and that on final hearing the temporary injunction be made permanent, and that plaintiffs have their costs, and for general relief.

Plaintiffs alleged, and the record shows, that on July 14, 1939, defendant Waples Platter Company filed in the Ninety-sixth District Court of Tarrant County, Texas, its petition seeking to recover the sum of $847.49 on a verified open account. The petition sets forth the verified account as follows: . '

“Elliott Grocery <& Market No. 1 Wink, Texas,
Date Memo Charges / Date Memo Credits / Balance Balance Forward Balance $483.34.”
“Elliott Grocery & Market No. 2,
Date Memo Charges / Date Memo Credits / Balance Balance Forward Balance $264.15.”

The account as above was sworn to as a verified account; the affidavit attached shows that by virtue of said account defendants in said suit (plaintiffs herein) are indebted to plaintiff Waples Platter Company in the sum of $847.49.

Thereafter Waples Platter Company entered in said cause judgment by default for said amount of $847.49, based on its .petition as a liquidated demand, as on verified account, and caused an execution to issue for the collection of such judgment, and placed the execution in the hands of the constable, defendant Butler, and directed a levy thereunder.

Plaintiffs in this suit (appellees) submit that in the original suit, the Tarrant County suit, being a suit on an open account for goods, wares and merchandise sold and delivered, the petition is insufficient to support the default judgment, as the petition does not disclose the dates of the account, and does not show that the purchasers in the account are the identical purchasers.

Plaintiffs insist that the judgment, being without sufficient pleading, is void; that the dissolution of the temporary injunction is within the discretion of the trial judge, and the case should not be reversed, the record showing no abuse of discretion.

Defendant Waples Platter Company filed a verified answer consisting of a general denial, and specially plead the judgment of the District Court of Tarrant County, sought to be enjoined; that no appeal or writ of error was prosecuted from said judgment by any of the defendants, and that said judgment still stands subsisting, and has never been vacated, modified, changed or altered; plead the issuing of the execution and its delivery to the constable; that it is the owner and holder of the judgment; that the judgment has not been paid in whole or in part.

There is no statement of facts in the record other than a certified copy of the judgment sought to be enjoined.

The judgment shows that the District Court of Tarrant County had jurisdiction of the subject matter of the suit, and by proper citation and service had acquired jurisdiction over each of the defendants. The judgment recites the proceedings had on the trial, and everything seems to have been regular and in due order. The defendants made no appearance at any time either in person or by answer, and th'e judgment was rendered by default. The only objection now made to the judgment and the execution is that the petition of the - plaintiff in the suit, the Waples Platter Company, does not itemize the account upon which the suit 'is brought, ’and .that the judgment rendered is in excess in amount of the balances of the account added together. The two objections seem to be true in fact, ás well as we can determine by the record before, us, and, in disposing of the case, we will assume that the open account upon which Waples Platter Company brought its suit is not itemized, that is, the account does not show the date of purchase nor the purchase price of any article in the account, and that the judgment is in excess in amount of the indebtedness.

We have concluded, however, that the facts, admitted as above, do not render the judgment void, but voidable only, and that the County Court of Winkler County was in error in issuing the temporary injunction, and was in error in overruling defendant’s motion to dissolve the injunction.

The District Court of Tarrant County, having acquired jurisdiction of the subject matter of the suit and of the parties defendant, had the power to render the judgment, though error, and that any attack upon the judgment, to be direct, must be brought in the court where the judgment was rendered.

Without discussing the matter further, we content ourselves by referring to the articles of the statute so providing, Revised Civil Statutes, 1925, Article 4656 and Article 1995, subdivision 17.

Also we refer to ’ll Tex.Jur., page 789, par. 60, where the law is fully stated, and many cases sustaining the statement there made are found in the notes.

The order enjoining the enforcement of execution is reversed and the suit is dismissed.


author: DUNKLIN, Chief Justice.

text:
    OSBOURN v. CALLOWAY et al.
    No. 14080.
    Court of Civil Appeals of Texas. Fort Worth.
    April 19, 1940.

      Oscar Reed, of Fort Worth, for apel-lant.
    Culbertson & Morgan and M. Ward Bailey, all of Fort Worth, for appellee F. E. Deen.
   DUNKLIN, Chief Justice.

This suit was instituted by E. W. Os-bourn against A. J. Calloway and F. E. Deen, on certain promissory notes executed by defendant Calloway and endorsed by defendant Deen. Both defendants filed pleas of four year limitation. According to allegations in the pleadings of all the parties, the notes show on their face that they had matured more than four years before the suit was instituted. To avoid that show of limitation, plaintiff alleged that the period of limitation pleaded had been tolled by letters of defendants to the holders of the notes, acknowledging the justness of the debt, written subsequently to the maturity of the notes, as provided by Art. 5539, Vernon’s Texas Civil Statutes.

The case was tried without a jury, and, as shown by findings of fact and conclusions of law filed by the trial judge, the court overruled defendant Calloway’s plea of limitation, because in his letters to plaintiff he had acknowledged the justness of the debt, and upon that finding his plea of limitation was overruled and judgment was rendered for plaintiff against him; from which no appeal has been prosecuted.

But the court further found that defendant F. E. Deen had not by letters to plaintiff acknowledged the justness of the debt, as alleged by plaintiff, and sustained his plea of limitation. Judgment was then rendered denying a recovery against Deen. From that portion of the judgment only, this appeal was taken, and the only assignments of error presented here are to the effect that Deen’s letters to plaintiff, appearing in the statement of facts, did show an acknowledgment of the justness of plaintiff’s debt and therefore the action against him was not barred.

As shown by separate order filed contemporaneously with this opinion, the statement of facts referred to in the assignments was stricken. In the absence of which the presumption must be indulged in favor of the finding to the contrary.

Accordingly the judgment denying plaintiff a recovery against Deen must be affirmed; and that plaintiff’s judgment against Calloway must be left undisturbed; and it is so ordered. Affirmed in part and left undisturbed in part.

On Appellees’ Motion to Strike Statement of Facts.

Three methods are prescribed by statutes for preparation of a statement of facts to be considered on appeal of a case to the Court of Civil Appeals, namely:

1. An original transcript of the court reporter’s notes, in question and answer form, approved by the trial .judge, Art. 2238, which shall be the' only statement of facts, Art. 2239.

2. In lieu of such a statement of facts, a narrative statement of facts, agreed to by the parties and approved by the trial judge, Art. 2239.

3. If the parties do not agree upon such a narrative statement of facts, or if the judge does not approve the same, and if the party appealing shall then, within the time for filing a statement of facts, present to the judge a statement of facts and shall certify thereon over his signature that to the best of his knowledge and belief it is a full and fair statement of all the facts proved on the trial, it then becomes the duty of the trial judge to prepare the statement of facts.

The statement of facts filed here by appellants in this court is not in compliance with the provisions of any’ of those statutory requirements in this: First, it is not one prepared by the court reporter, in question and answer form, as prescribed in Art. 2238; second, it is in narrative form, prepared by the court reporter, and not agreed to by the parties, as prescribed in Art. 2239; third, nor was it prepared by the judge, under the conditions prescribed in Art. 2240.

For those reasons, the statement of facts filed here cannot be considered by this court as a part of the record on this appeal; and therefore appellees’ motion to strike it must be sustained. Sloan v. Sloan’s Adm’r., Tex.Civ.App., 117 S.W.2d 803; Davis v. Moore, Tex.Civ.App., 126 S.W.2d 1005; Id., Tex.Civ.App., 127 S.W.2d 971, and cases cited.