author: GERMAN, Commissioner.

text:
    DICKSON et al. v. NAVARRO COUNTY LEVEE IMP. DIST. NO. 3 et al.
    No. 7614.
    Supreme Court of Texas.
    April 24, 1940.
    J. L. Gammon, A. R. Stout, and G. Goodwin Sweatt, all of Waxahachie, for plaintiffs in error.
    J. P. Moseley, of Ennis, for defendants in error.
   GERMAN, Commissioner.

In September, 1918, Navarro County Levee Improvement District No. 3, including certain territory situated in Navarro County, was created under the provisions of Chapters 25 and 44 of the Fourth Called Session of the 35th Legislature. About the same time, Ellis County Levee Improvement District No. 10, including certain territory in Ellis County, was created under the same authority. As we understand, these two districts adjoin and in reality constitute but one district.

In January, 1919, in pursuance of the provisions of the laws above mentioned, the district caused to be issued certain bonds aggregating $21,000. For the purpose of this decision, it is assumed that everything in connection with the creation of the district, the issuance of the bonds, and the assessment and levy of taxes upon lands of the defendants hereinafter mentioned to pay interest upon the bonds and create a sinking fund, was regularly and properly done.

The law under which said bonds were issued provided as follows with reference to the collection of delinquent taxes: “Tax collectors of levee improvement districts shall perform all 'duties and exercise all powers in respect to delinquent taxes due levee improvement districts as may be provided by law for the collection of delinquent State and county taxes, and the collection of such delinquent levee improvement district taxes and sales of property therefor shall be governed by the laws applying to the collection of delinquent State and county taxes. Taxes levied under this Act shall be a lien upon the property against which they are assessed, and shall be payable and shall mature and become delinquent as may be provided by law for State and county taxes, and upon failure to pay such taxes when due the same penalty shall accrue and be collected as may be provided by law in case of nonpayment of State and county taxes.” Acts 35th Leg., 4th Called Sess., c. 44, § 42.

In 1925, the legislature passed an elaborate Act concerning levee improvement districts, being Chapter 21, General Laws 39th Legislature, which apparently superseded all other laws upon the subject. This Act, with perhaps some additions, appears as Chapter Six of Title 128 of the Revised Statutes of 1925, and includes Articles 7972 to 8017, inclusive, as well as numerous other articles. Ample provision is made in Article 8016 for collection of delinquent taxes. However, Article 8017 set up a supplemental and detailed method of collecting taxes, and subdivision (i) of said article was as follows: “Whenever the board of supervisors of any levee improvement district shall fail to commence suits within sixty days after taxes have become delinquent, the holder or holders of any bonds issued by such levee improvement district shall have the right to employ counsel to bring such suit in the name of the levee improvement district upon the relation of such holder or bond holders; and such suits may be proceeded with in the same manner as hereinabove prescribed, and shall in all respects be governed by the provisions of this section.”

Taxes for the years 1933 and 1934 upon lands of J. M. Dickson, W. D. Dickson and Porter Horton became delinquent. E. K. Atwood became holder of some of the bonds issued in 1919. On March 16, 1937, under and by virtue of subdivision (i) of Article 8017, set out above, Atwood, by his attorney, instituted suit in the District Court of Navarro County against J. M. Dickson, W. D. Dickson and Porter Horton as defendants. The formal part of the petition is as follows: “Now comes your petitioner, Navarro County Levee Improvement District No. 3, hereinafter called ‘Plaintiff District’, upon the relation of E. K. Atwood, acting herein as hereinafter will more fully appear.”

Briefly stated, the purpose of the suit was to recover taxes assessed against lands of defendants .within said levee district for the years 1933 and 1934, and for foreclosure of lien upon said lands.

On April 5, 1927, defendants in said cause filed what they designated an answer and plea in abatement. The plea in abatement was to the effect that the suit was brought upon the relation of E. K. Atwood, which was contrary to law, in that the supervisors of said district were the proper parties to bring such a suit. It was alleged that Whit Eaton, George Norris, and J. T. Beall had been duly appointed supervisors, and had qualified as such. By way of answer they plead that the taxes for the years 1933 and 1934 were barred by limitation. On the same day Whit Eaton, George' Norris and J. T. Beall, alleging themselves to be the duly appointed and qualified supervisors for said levee district, filed in said cause a petition of intervention. In said petition they prayed that E. K. Atwood be “dismissed as bringing this suit in behalf of said Navarro County Levee Improvement District No. 3,” and that the attorney for said E. K. Atwood be dismissed as attorney for plaintiff, and that interveners’ attorney be substituted therein.

On June 25, 1937, judgment by default was pronounced in the case, it being recited in the judgment that “Navarro County Levee Improvement District No. 3 of Navarro County, Texas, on the relation of E. K. Atwood” was plaintiff. After reciting that the pleas in abatement by defendants and interveners were overruled, judgment was awarded in favor of the district against defendants J. M. Dickson, W. D. Dickson and Porter Horton for the taxes for the years 1933 and 1934, with foreclosure of liens upon the lands of defendants.

On the next day, June 26, 1937, the defendants, as well as the supervisors of the district as interveners, filed motions for new trial. These motions were afterwards amended. Among the grounds set up for vacating the judgment, was one questioning the right of E. K. Atwood as relator to maintain the suit. On July 5, 1937, these motions were overruled, and at that time the judge of the court formally signed the judgment, in which it was recited that same was pronounced by the court on June 26, 1937. Notice of appeal was given by both the, defendants and interveners, and the case was appealed to the Court of Civil Appeals.

The 45th Legislature, at its First Called Session, on June 28, 1937, repealed subdivision (i) of Article 8017 of the Revised Statutes of 1925, under which the cause was instituted by Atwood as relator. This Act contained no saving clause. The emergency clause of the Act was as follows : “The fact that many racketeers and bond scalpers have used the existing law as an instrument of oppression in order to obtain the land of many landowners in this State located in Levee Districts and as a result many citizens of Texas have lost their land and become homeless, and the further fact of the nearness of the close of this present Legislature create an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended and the Rule is hereby suspended, and that this Act take effect immediately from and after its passage, and it is so enacted.” Acts 45th Leg., 1st Called Sess., c. 38, § 2.

This Act became effective September 28, 1937, while the cause was pending in the Court of Civil Appeals. ' Afterwards, the Court of Civil Appeals affirmed the judgment of the district court. 124 S.W.2d 943.

We have reached the conclusion that the effect of the Act of September 28, 1937, was to work an abatement of this suit, and this makes it unnecessary to discuss other questions.

It is almost universally recognized that if a statute giving a special remedy is repealed, without a saving clause in favor of pending suits, all suits must stop where the repeal finds them; and, if final relief has not been granted before the repeal goes into effect; it cannot be granted thereafter. A like general rule is that if a right to recover depends entirely upon a statute, its repeal deprives the court of jurisdiction over the subject matter. Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905; Galveston, H. & H. Ry. Co. v. Anderson, Tex.Civ.App., 229 S.W. 998, writ refused, and authorities there cited; Goodrich v. Wallis, Tex.Civ.App., 143 S.W. 285; State ex rel. Shaw v. Southern Anthracite Coal Co., 131 Ark. 593, 198 S.W. 126; State of South Carolina v. Gaillard, 101 U.S. 433, 437, 25 L.Ed. 937.

These rules are controlling here. Subdivision (i) of the Act of 1925 manifestly conferred only a special remedy or privilege upon holders of bonds of a levee improvement district. While delinquent taxes were primarily due the district as such, and their collection rested with the district and its officials alone, said provision of the law conferred upon a bondholder the right to make a district a party to a suit to enforce collection of delinquent taxes. In other words, the law in effect constituted a bondholder a statutory relator, for the purpose of instituting and prosecuting suits in the name of the district, when the district, through its officials, had failed to do so. The bonds involved were issued in 1919, long before subdivision (i) of the Act of 1925 was enacted. The law at that time, as well as the Act of 1925, gave full and ample power to the district to collect delinquent taxes. The purchaser of bonds acquired such rights as the law existing in 1919 afforded. After the repeal of subdivision (i) they still retained such rights as they acquired by pur- ■ chase and such rights as were afforded them under the general rules of equity. The repeal took away no right acquired by contract, but only destroyed the special remedial privilege afforded by subdivision (i). As was aptly said in State of South Carolina v. Gaillard, supra: “It is enough if the contract is ‘left with the same force and effect, including the substantial means of enforcement, which existed when it was made. The guaranty of the Constitution gives it protection to that extent.’ ”

It is our conclusion that the suit, having been brought by a relator under special statutory authority, wholly collapsed when the statute authorizing its prosecution by the relator was repealed. We have the anomalous situation presented here of the defendant in error being designated "Navarro County Levee Improvement District No. 3, by E. K. Atwood relator,” when E. K. Atwood no longer has a legal right to represent said district, or prosecute a suit in its name. But the whole burden of argument seems to be that E. K. Atwood, individually, or as a bondholder, is being robbed of some right: As above shown,- the right sought to be upheld by him was one specially conferred by statute, and in no manner arose out of. his contract of purchase; consequently, same was unquestionably taken away when the statute was repealed.

But if is argued that the judgment is in favor of the district, and as defendants have not shown a meritorious defense to the action, they are in no position to complain. The answer is that there has never been a final judgment, and as the party who, by reason of the statute, stood for the district when the suit was instituted, has been disabled from representing the district in the further prosecution of the suit, the district itself is no longer a party to the suit. The district in its own right, through its statutory supervisors, is hot seeking to uphold the judgment, but in reality is insisting on it being held for naught. The supervisors were allowed to intervene, and filed motion for new trial. They have also filed application here, adopting in full the application filed by plaintiffs in error.

By way of illustration, we would call particular attention to the case .of State ex rel. Shaw v. Southern Anthracite Coal Mining Co., supra, ,by the Supreme Court of Arkansas, which, in principle, appears to be almost precisely in point. . In that case a suit was instituted in the name of the' State,- on 'the relation of the State Mining Inspector. At the time of its institution the statute authorized same to be'brought by the State Mining Inspector as relator. After the case was filed in the Supreme Court the legislature passed an Act repealing the former law, and making provisions for enforcing the mining regulations by summary proceedings. The court dismissed the action saying [131 Ark. 593, 198 S.W. 127]: “Since the Legislature has, pending this appeal, changed the method of enforcing such regulations, it is unnecessary for us to determine whether or not the complaint in this- case, states a cause of action. For that reason the appeal is withóut merit, and should be dismissed.”

As the repeal of subdivision (i) had the effect of abating this suit as a matter i/flaw, the judgments of the Court of Civil Appeals and of the district court are set aside, and the cause is dismissed.

Opinion adopted by the Supreme Court.

SHARP, J., disqualified and not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    DICKSON et al. v. ELLIS COUNTY LEVEE IMP. DIST. NO. 10 et al.
    No. 7615.
    Supreme Court of Texas.
    April 24, 1940.
    J. L. Gammon, A. R. Stout, and G. Goodwin Sweatt, all of Waxahachie, for plaintiffs in error.
    J. P. Moseley, of Ennis, for defendants in error.
   GERMAN, Commissioner.

This is a companion case to the case of J. M. Dickson et al. v. Navarro County Levee Improvement District No. 3, 139 S.W.2d 257, this day decided. The opinion of the Court of Civil Appeals is reported in 124 S.W.2d 946.

The suit was instituted by E. K. Atwood as relator, and while same was pending in the Court of Civil Appeals the Legislature repealed the statute under which he was authorized to represent the district as relator, Vernon’s Ann. Civ.St. art. 8017, as the suit was abated by reason of such repeal, the judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is dismissed.

Opinion adopted by the Supreme Court.

SHARP, J., disqualified and not sitting.


author: TAYLOR, Commissioner.

text:
    CASUALTY UNDERWRITERS v. WHITMAN et ux.
    No. 1810—7441.
    Commission of Appeals of Texas, Section B.
    May 1, 1940.
    Touchstone, Wight, Gormley & Price, of Dallas, for plaintiff in .error.
    Thomas & McDonald and Geo. T. Thomas,- all of Big Spring, and Smith & Smith, of Anson, for defendants in error.
   TAYLOR, Commissioner.

This is a workmen’s compensation suit. It was filed by the insurance carrier, Casualty Underwriters, to set aside an award of the Industrial Accident Board. The employee, Bob Whitman, an adult, was killed in the course of his employment. His parents, A. W. Whitman and wife, upon a non-jury trial, recovered a lump sum judgment on their cross action for $2,155. The Court of Civil Appeals upon an appeal prosecuted by the Whitmans reversed and remanded the cause. 116 S.W.2d 908. Writ of error was granted the Casualty Underwriters.

The Whitmans were dissatisfied with their recovery because the trial judge rendered judgment upon the basis of a money wage which the deceased was receiving as an employee, instead of upon a money wage basis plus the alleged reasonable value of such training and practical education as a machinist. This training and experience is alleged to have been of the reasonable value of $25 per week to the employee, which value, it is alleged, was in the contemplation of the parties (employer and employee) at the time the contract of employment was made. This amount, it is alleged, added to his money wage, should constitute the basis for computing the rate of compensation payable to the beneficiaries.

The trial court, as reflected by its judgment, sustained what was in effect a general demurrer to the allegations of the cross action filed by the Whitmans “bearing upon the elements of training, instructions and practical education as a basis for computing the rate .of compensation.”

The Court of Civil Appeals predicated its reversal of the judgment upon its construction of subsection 4 of section 1 of of article 8309, R.C.S.1925, which reads: “Said wages shall include the market value of board, lodging, laundry, fuel, and other advantage which can he estimated in money, •which the employe receives from ihe employer as part of his remuneration. * *" (Italics ours).

It appears to be the view of the Court of Civil Appeals that the services of Johnson Machine Shop, the employer, in training and educating the employee, are of such character as to be capable of classification as an item of his wages within the statutory term, “other advantage which can be estimated in money.”

It must be borne in mind that this case arises under the workmen's compensation act (Vernon’s Ann.Civ.St. art 8306 et seq.), and is not a suit for damages; and that the provisions of the compensation statutes impliedly become a part of the contract of employment. Patton v. New Amsterdam Casualty Co., Tex.Com.App., 36 S.W.2d 1000. Counsel for the Whitmans state in their brief that prior to the present case there is none in this state interpreting the italicised portion of the above statute, and that they are unable to cite authority from the decisions of other states in support of their interpretation of the provisions in question, due to the fact that no similar provision is found in the compensation acts of any other state.

The reasoning employed in urging the interpretation insisted upon is more in keeping with that which is applicable in determining damages at common law for personal injury than with ascertaining a statutory basis for computing a rate of compensation.

It will be noted from the provision to be considered that any item of wages to be included in the term “other advantage” is limited to such advantage as “can be estimated in money.” Whether the “advantage” that may accrue to an employee by way of training and experience in his employment is such an item, depends upon whether its value is capable of ascertainment in money as a wage rate.

The fact that training, and experience as a machinist may be advantageous to an employee is apparent, but obviously such an item of advantage, being purely educational, is not subject to measurement as a money wage in the sense that the specified items of board, laundry and fuel are subject to' such measurement. In a sense all employees receive benefit from their employment. Up to the time the employee reaches the maximum of his efficiency his services ordinarily become progressively more valuable. It would be rank speculation, however, to attempt to measure in money while the employee’s duties are being performed, how much the experience and training he is thereby acquiring is worth per day or week in addition to the money wage he is receiving. Premiums for compensation policies are based in part upon the pay rolls of employers and must of necessity be capable of definite ascertainment in terms of money rather than in terms of an agreement which a pay roll auditor might conceivably make with the employer as to the value of an employee’s training and experience.

If this were a damage suit the circumstance that the deceased had received the education and training here in question would be considered by the trier of facts in arriving at the amount of damages occasioned by his death; but the elements entering into the computation of the rate of compensation payable to the beneficiaries of a deceased employee, are purely statutory, and we cannot agree that the training and experience that an employee receives by virtue of his employment, has a daily or weekly money value subject to computation. For this reason we conclude that training and experience cannot be utilized in computing in money a wage that is made the basis of the rate at which compensation is payable to the beneficiaries. The experience and training which an employee receives by virtue of his employment does not meet the legislative requirement of being capable of measurement in money. Any other construction would manifestly tend to render the portion of the statute under consideration complex, rather than simple, by introducing an added element of uncertainty in the determination of the rate of compensation, especially in those cases in which the wage rate is below the amount necessary to the awarding of the maximum compensation. The legislative purpose in limiting advantages that might accrue to an employee as a part of his wage remuneration to those capable of being estimated in money, was doubtless to avoid the uncertainties necessarily incident to speculative.advantages.

The judgment of the trial court awarding compensation to the beneficiaries in the sum of $2,155 on the basis of the weekly money wage received is correct. The judgment of the Court of Civil Appeals reversing that judgment and remanding the cause is therefore reversed and the trial court’s judgment is affirmed.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge.

text:
    Ex parte DIGGS et al.
    No. 21145.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    J. R. Wilson, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

This is a habeas corpus proceeding. Appellants were adjudged guilty of contempt for violating an injunction issued in a civil case. They sought release by way of habeas corpus and were remanded to custody by the district court of Wichita County. Hence this appeal.

In view of the fact that the commitment grew out of proceedings had in a civil action, we are constrained to decline to entertain jurisdiction. In Ex parte Cummings, 75 Tex.Cr.R. 70, 170 S.W. 153, it is shown that the commitment grew out of proceedings had in a civil action. Cummings sought to appeal to this court after he had been remanded to custody by the district court in a habeas corpus proceeding. This court declined to entertain jurisdiction, and dismissed the appeal. In Ex parte Hill, Tex.Cr.App., 114 S.W.2d 247, a similar situation was presented. In dismissing the appeal in that case the court said: “Wherever the matter of confinement grows out of a civil proceeding and appellant appeals, this court will decline to entertain the appeal by reason of the comity between this court and the civil courts.”

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.


author: BEAUCHAMP, Judge.

text:
    WILLIAMS v. STATE.
    No. 20853.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Rehearing Granted April 24, 1940.
    J. C. Darroch and E. M.- Davis, both of Brownwood, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State. .
   BEAUCHAMP, Judge.

Appellant was convicted for possessing whisky in a dry area for the purpose of sale and assessed a fine of $100 by the County Court of Browrf County.

Officers, went, to the .appellant’s private residence to make a. search for intoxicating liquors. As they approached, a young man who roomed at the. place saw them coming and went into the house and locked the screen door, which delayed the officers in entering. As they approached the house they heard glass breaking, and upon forcing an entrance by battering the bath-room door down with a sledge hammer, they found appellant in the bath room with some broken whisky bottles.

Tom Warren, representing the Texas Liquor Control Board, testified that he went into the house of the appellant after approaching the place from the back and found not only the screen door fastened in front of him, but appellant had gone into the bath room and barred the door. They demanded that the door be unlocked but that it seems was not done. The witness then said: “When we got in .there he was pouring ammonia on that glass. We got glass out of a concrete basin about eighteen inches square and about 12 inches deep. There is about" a ten-inch drain pipe with an iron sifter over it. We had to wait for the odor of ammonia to die down before we could pick up the glass. We picked up nine whisky bottle necks that the seal had not been broken and a number of others that had been broken and when the fumes of ammonia died down there was still the odor of whisky there. In this basin there was a long iron tamping outfit with the glass. It was wet and standing on the glass in this basin. This was in the bath rotten.”

The witness further testified: “When we found this tamping rod it was wet up to — I would say about eight inches. I had occasion to pick up this rod there and it smelled of whisky. In my duties as an employee of the Texas Liquor Control Board, I am able to tell the odor of whisky. It had a strong ammonia odor and also whisky. However, ammonia will die down quicker than whisky, but it still smelled a little of ammonia, and strong of whisky. It had the odor of whisky on it. I looked at the glass and things we got there. We secured parts .of bottle necks and, parts of labels on them, whisky labels.”

, . Referring to the sack containing the bottles and also the necks, the witness said that he got the glass out of the concrete basin in the floor of the bath room; that it had a strong odor of whisky. He waited for a few minutes until the ammonia fumes died down and picked the glass up. He could tell the number of bottles they had by the number of bottle necks. He judged that those which had the seal unbroken were full of'whisky.

The State introduced each of the eleven bottle necks in evidence as Exhibits Nos. 1 to 11, and the testimony is to the effect that nine of these did not have the seals broken and that two of them did. The evidence shows that as to most of them, they were half-pint or- pint bottles, no less than one-half. However, Exhibits Nos. 9 and 10, according to the testimony, were necks of pint bottles from which the caps had not been broken.

As we view it, two of the bottles contained a pint each and seven contained at least one-half pint; that is, they were bottles of that size with unbroken seals. The basin in the bath-room floor was eighteen inches square and had a ten-inch drainage. The tamping rod used to break the bottles was wet for approximately eight inches, and the odor shows that- they had both whisky and ammonia. The jury had before it the fact that the appellant-barred the door against the officers and that he broke these bottles while tli-ey were trying to effect an entrance. He was still engaged in pouring ammonia on the broken bottles when the officers succeeded in entering the bath room. There is a failure, as complained, to show definitely and certainly, except by circumstances, the amount of whisky which the appellant possessed, but' we think the jury was justified 'under the facts in finding that there was more than a quart. The officer testified that one pint could not have made all that smell; that two pints would smell stronger than one; that “by the gauge of my nose I would say there was about ten or twelve pints in there — by the gauge of my nose.” This was his conclusion, which he gave without objection. The constable of the precinct gave similar testimony to the foregoing in corroboration of the principal witness, and we find no fact testified to by any witness, nor is there a circumstance in the case indicating that the liquid which the bottles contained, that which appellant was destroying, was anything other ■ than intoxicating liquor. The appellant’s wife was the only witness in' his behalf. She was in the house at the time the search was made and evidently knew the facts. She corroborates the officers in the statement that Thomas Atkinson was at the house at the time the search took place and that they gave the search warrant to him as they entered. There is nothing in her testimony to aid the appellant or in any way to discredit the testimony given' by the officers either as to the facts existing or their conclusion from the facts as to the contents of the bottles.

The case of Ballew v. State, 135 Tex.Cr. R. 454, 121 S.W.2d 369, is very similar under the material facts. However, in that case the officers found only about three-fourths of a pint of whisky and a half pint of gin. They found .a case of broken whisky bottles in the bath room, some of-which had been broken in the bath tub.' From them they recovered about one-third of the liquid which, under analysis, showed to contain less than twenty per cent alcohol by volume. It was also shown that whisky has an alcoholic content of from forty to fifty per cent by volume. The evidence in that case was circumstantial, but the fact that part of the liquid in the bottles contained so small an amount of alcohol was sufficient to raise a question as to whether or not the liquid in the bottles was intoxicating. - In that case the evidence, being circumstantial, was not sufficient to ex-' elude any other reasonable conclusion than the appellant’s guilt. In the instant case it is different. His act in. breaking the' bottles while the officers were approaching and then attempting to destroy the odor of liquor by the application of ammonia is an act of guilt which the jury had a right to consider. There is nothing in the case before us which in any respect might indicate anything other than that the appellant was guilty as charged. The affirmative evidence, unexplained, is sufficient. We believe it would be going too far under the facts of this case to say that the circumstances were insufficient upon which the jury may find the appellant guilty.

The question raised as to the sufficiency of the evidence was the only one which we consider of sufficient importance to require attention.

The other bills are overruled, and the case is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant calls attention to the testimony of the witness, Tom Warren, who made the affidavit for the search warrant in this case and who said: “I am one of the affiants in the Affidavit for Search Warrant. No sir, I never had seen any liquor manufactured in this particular house (referring to defendant’s residence); I had never seen' any liquor sold there. This defendant has never sold me any liquor. Yes, I knew it, was a private residence. This affidavit I made was made on information and belief, instead of what I actually knew of my own knowledge. I have not seen any liquor in the possession of the defendant.”

Following the foregoing testimony the prosecution asked the witness to tell the jury how he knew that liquor was being sold there, to which he answered, over objection of the appellant, as follows: “Previous raids is all that I know. I have made previous raids there.”

The admission of this evidence was error requiring that the case be reversed. Jackson v. State, 97 Tex.Cr.R. 462, 262 S. W. 78; Brunello v. State, 102 Tex.Cr.R. 379, 278 S.W. 428.

It is further insisted by the appellant on his motion for rehearing that the foregoing evidence renders the affidavit for the search warrant insufficient.. Had the affidavit contained this language of the witness, it might be a different proposition, but an examination of the affidavit indicates a sufficient positive allegation to authorize the issuance of the search warrant. This cannot be impeached by the subsequent evidence of the affiant making it. The Justice of the Peace who issued the search warrant based it upon the allegations in the affidavit and not the testimony which the witness gave on cross-examination subsequently. We find no error in, this bill.

Because of the admission of the evidence of the witness as to the previous raids, the motion for rehearing is granted and the judgment of the trial court is reversed and remanded for a new trial.


text:
    SNOW v. STATE.
    No. 20966.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    Bennett & Bennett, of Normangee, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Waller County for the theft of cans of lubricating oil. in excess óf $50 in value and given four years in the state penitentiary. ‘

C. S. Sorsby testified that he lived in Waller County, Texas, and was engaged as distributor for the Sinclair Refining Company; that he had some oil taken from his warehouse on the 2nd day of March, 1938; that it was “as many as thirty-two cases of Opalene oil and as many as twelve cases of Pennsylvania oil”. The oil was taken without his consent. The Opalene oil was valued at $3.70 per case and the Pennsylvania oil at $5 per case. Some time after that, a deputy sheriff of Montgomery County informed the complaining witness that he had recovered some oil, and the witness.said that when he visited the court, house he saw cans of oil and “recognized some of my figures on some of the cases”. The oil in question was presented to the witness in the court room and he said that he there recognized “some figures on this case of oil as being my figures”. There were other figures on the case not his own. He testified that he did not recall having distributed any oil in Montgomery County; nor did he have any recollection of having sold any oil to any person from Montgomery County that might have come to his place. He said that he made figures at different times on cases of oil both before and after March 2, 1938, and up until the day of the trial, and had been doing so for several years; that by looking at the cases in question, he did not know when the figures were put there; that it might have been before, and it might have "been after, March 2, 1938. The only means of identifying the oil as his own was by these figures and he had sold oil to other parties with like figures on it. He had had two burglaries; one on March 2nd and the other in September of that year. He did not know the defendant, P. S. Snow.

G. G. Brooks testified that he lived in Montgomery County and on the 3rd day of March, 1938, was working at a filling station for a man named L. W. Jarman; that his residence was about 100 steps from the station. He testified further that the appellant came to his place, of business on the 3rd day of March, 1938, about five o’clock ,in the morning, in company with another party named, Dewey or G. D. Snow. When h.e went out to the station they were unloading some canned oil just inside of the building, and were doing so without having conversed with him. Later, they came back with an order, apparently from the owner of the station, for their money, and the witness paid for it. They brought a bill, which was for thirty-two cases of Opalene and twelve cases of Pennsylvania oil, the total bill being $92.80, which was much less than the actual wholesale market value of that amount and kind of oil. The receipt was signed “Snow”, but there is no evidence to the effect that it was in the handwriting of the appellant. However, he is identified by the witness as being the party who brought it there.

A deputy sheriff later came to the Jar-man filling station and got the oil and arrested this witness as being in charge of it and placed him in jail for a time. ■Jarman was buying and selling oil, wholesale and retail.

The fatal defect in the evidence in this case lies in the fact that the alleged owner of the oil is unable to identify it as his own. It is simply the same kind and character of oil which he sells and the cases hád numbers on them, placed there in his handwriting. He had sold this kind of oil with like figures, to many different parties and there is no means of distinguishing the oil in question from that sold to others.

The evidence creates a strong suspicion that the - appellant is the guilty party, the chief circumstances being that he sold it for much less than its actual value; that he was not engaged 'in the •oil business; that it was immediately after the prosecuting witness had had his place burglarized and oil taken, but there is no evidence of the presence of the appellant at the place where the Sinclair warehouse was burglarized. After all, it resolves itself into a strong suspicion only, and is insufficient to warrant a conviction. See Edgar O’Mary v. State, Tex.Cr.App., 139 S.W.2d 800, opinion delivered March 27, 1940.

Because of the insufficiency of the evidence, the case is reversed and the cause remanded.


author: GRAVES, Judge.

text:
    BASSETT v. STATE.
    No. 21013.
    Court of Criminal Appeals of Texas.
    April 17, 1940.

      ' J. S." Bracewell, ’ of Houston, for appellant.
    Lloyd' W. Davidson, State’s Atty., of Austin, for the State.'
   GRAVES, Judge.

Appellant was convicted of an offense relative to the proper registration of a motor vehicle, and fined the sum of $25, hence this appeal.

Article 804 of the Penal Code reads as follows: “Whoever operates upon any public highway á motor vehicle which has not been registered as required by law shall be fined not to exceed two hundred dollars.”

In order to find that which is required by law relative to the registration of such automobiles, we are relegated to the civil statutes. Article 6675a — 2, Vernon’s Ann. Civ.St., reads as follows: “Every owner of a motor vehicle, trailer' or 'semitrailer, used or to be used upon the public highways of this State, and each chauffeur, shall apply each year to the State Highway Department through the County Tax, Collector of the County in which he resides for the registration of each such vehicle owned or controlled by him, or for a chauffeur’s license, for the ensuing or 'current calendar year or unexpired' portion thereof * *

The information, which follows the comr plaint, reads in th.e part- pertinent hereto as follows: “ * * * did then and there unlawfully operate, and, cause and permit to be operated, upon a public street and highway in Harris Cpunt-y, Texas, -a-motof vehicle, to-wit: an automobile truck and .having attached thereto two license plates of the State of Texas being numbered 30c/m795, which motor vehicle had not ⅝-been- theretofore registered as required by law in this: .that said.motor vehicle had theretofore on the 28th day of March A. D., 1939, been registered in Chambers County,. Texas, for the license year 1939 by ■'the said Sam : Bassett' Lumber Company, ⅛ corporation, with its ’principal' office and place of business in Houston, Harris County, Texas; the said- Sam .-Bassett Lumber '.Company, a corporation, not then and the-r.e having its principal: office .-and place of business in Chambers County, Texas; * *

We gqther from the allegations that appellant is charged,with registering his truck in Chambers County, but is not charged therein - with not registering the same in Harris County. Inferentially it might be deduced that -he had hot registered the same in Harris County because same was registered in Chambers County, but the rules -,of good pleading demand that the matter' charged -.against .an accused shall be pleaded with certainty and not be pleaded- inferentially. The appellant may have registered this car -truck in two counties, arjd. the mere fact that he had .registered same in. Chambers County does not mean that he had not registered the same in Harris County.-.The gist of'the offense is not that he registered such truck in Chambers .County, but the violation of ,the law arises only when, he fails to register such .truck in Harris. County. The complaint and. information are defective in that they do, not, allege that said truck was .not registered in Harris. County, the county of appellant’s, residence, .etc.

In Ex parte Jonischkies, 88 Tex. Cr.R. 574, 227 S.W. 952, we said that it is fundamental that the complaint must state 'facts which, if true, amount to a violation 'of the law. In Ex parte Vasquez, Tex. Cr.R. 56 S.W.2d 190, 191, it is said: “As stated by this court in the recent case of Jones v. State 118 Tex.Cr.R. 106, 38 S.W.2d 587, 588: Under our statute all that is essential to constitute the offerise must be sufficiently charged and Cannot be aided 'by intendment.' The-facts-constituting the offense must be set -forth so that the conclusions of law may be arrived at from the facts so stated. Articles 396 and 397, C. C. P.; Ford v. State, 108-Tex.Cr.R. 626, 2 S.W.2d 265. While the law does not require .minuteness of detail, it demands Sthat the particular offense be set out with .such certainty, that a presumptively in-nocent man seeking to know what he must meet may áscertain fully therefrom the matters charged- against him. Ford v. State, supra; Harden v. State, 85 Tex. Cr.R. 220, 211 S.W. 233, 4 A.L.R. 1308; Middleton v. State, 114 Tex.Cr.R. 263, 25 S.W.2d 614.

It is our opinion that the complaint and .information are defective and should have been quashed. ""

The judgment is therefore reversed and the prosecution ordered dismissed.


author: KRUEGER, Judge.

text:
    GRAHAM v. STATE.
    No. 20684.
    Court of Criminal Appeals of Texas.
    April 17, 1940.
    C. C. McDonald and Geo. W. Anderson, both of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant’s first complaint is that the court erred in overruling his motion to quash the indictment, the validity of which is attacked upon various grounds set forth in the motion. The indictment, which is quite lengthy, sets out in haec verba an alleged voluntary confession purporting to have been made by appellant to the district attorney concerning theft of cattle, for which offense he was then under arrest. It is averred, in substance, in said indictment that the confession was tendered in evidence on the trial of appellant for the theft of such cattle. That on the trial of said case, appellant denied that the confession was voluntary; and affirmed that it was extorted from him as a result of cruel and inhumane treatment by the officers, the nature of which need not be stated here, It is then averred that his testimony relative to his treatment by the officers was false. The alleged confession shows upon its face that it was not in due and legal form, because the proper warning was not given to him. See Art. 727, C.C. P.; Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733. It is obvious that if the alleged confession was merely tendered in evidence and not introduced, his testimony relative to the treatment he suffered at the hands of the officers was not a material inquiry and not pertinent to any issue in the case.

It is a well-recognized rule in this state that án indictment to be sufficient must by direct and positive averments charge every constituent element of the offense and leave nothing to inference or intendment. See Middleton v. State, 114 Tex.Cr.R. 263, 25 S.W.2d 614; Anderson v. State, 130 Tex.Cr.R. 352, 94 S.W.2d 749; Punchard v. State, 122 Tex.Cr.R. 134, 54 S.W.2d 110; Johnston v. State, Tex.Cr.App., 76 S.W.2d 1052. Many other cases might be cited to the same effect.

Testing the indictment by the rule stated, we think that it fails to meet these requirements; inasmuch as the purported confession shows upon its face that the proper statutory warning was not given, it could not properly, over the objection of appellant, be introduced in evidence. This strengthens' the conclusion to be drawn from the averments 'that it was tendered and not introduced. To tender evidence is not tantamount to its introduction. In case another indictment is sought, we also suggest that it might be profitable to carefully read the last paragraph of the opinion in the case of Scott v. State, 75 Tex. Cr.R. 396, 171 S.W. 243.

Another serious question as to the validity of the indictment is that the purported confession is set out in solido and claimed to be false, and in turn the greater part of it- is charged to be true. It occurs to us that this constitutes, on its face, a contradiction and renders it repugnant. See Welch v. State, 88 Tex.Cr.R. 346, 227 S.W. 301; Morris v. State, 47 Tex.Cr.R. 420, 83 S.W. 1126.

Having reached the conclusion that the court erred in overruling appellant’s motion to quash the indictment, the judgment is reversed and the prosecution is. ordered 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.


text:
    JORDAN v. STATE.
    No. 20975.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    H. A. C. Brummett, of Dickens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

Notice- of appeal was given October 3, 1939. The statement of facts was filed in the trial court January 8, 1940, which was more than 90 days after notice of appeal was given. This was too late. See Subdivision 5 of Article 760, C.C.P. In the absence of á statement of facts we are unable to appraise appellant’s bills of exception.

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:
    MILLS v. STATE.
    No. 20989.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Clarke Wills, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Bell County for the offense of robbery by assault and his punishment assessed at confinement in the state penitentiary for ten years.

The indictment appears regular. The record is before us without a statement of facts or bills of exception.

We note that the judgment and sentence appearing in the record condemn appellant to confinement in the penitentiary for not less than ten nor more than ten years. 'This is error. Under the terms of the Indeterminate Sentence Law (C.C.P.1925, Art. 775, Vernon’s Ann.C.C.P. art. 775), the judgment and sentence will be reformed so as to confine appellant in the state penitentiary for a period of not less than five nor more than ten years.

As reformed, the judgment will be affirmed.


text:
    HUEY v. STATE.
    No. 20972.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Gray & Pope, of Tyler, 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 Lum Fleming by shooting him with a gun.

According to the testimony of the state, appellant killed deceased without provocation. It was appellant’s version, as shown in his testimony, that he acted in self-defense.

In applying the law of self-defense to the facts, the court instructed the jury as follows : “Now, if you believe from the evidence, that at the time the defendant shot and killed the deceased, if he did, from some words then spoken Of some act or demonstration then made, or from some words then spoken coupled with some act or demonstration then made on the part of the deceased, it reasonably appeared to the defendant that the deceased was about to make an attack upon him and that it reasonably appeared to the defendant, viewed from his standpoint at the time, with all the facts and circumstances within his knowledge, that he was in danger of losing his life or'suffering serious bodily injury at the hands of the deceased, at that time, and that the defendant shot and killed the deceased under a reasonable apprehension or fear of death, or serious bodily injury, then you will find the defendant not guilty.”

This charge was timely and properly excepted to on the ground that nowhere 'in connection therewith was the doctrine of reasonable doubt applied. In failing to respond to the exception the trial court fell into reversible error. It is manifest that the charge as given required the jury to believe the defensive theory before they could acquit appellant, and nowhere in connection therewith applied the doctrine of reasonable doubt. See Gonzales v. State, 113 Tex.Cr.R. 439, 22 S.W.2d 674, and authorities cited.

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.


text:
    HARRELL v. STATE.
    No. 21006.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for the theft of an automobile over the value of fifty dollars; penalty assessed at confinement in the penitentiary for five years.

Elmer Howell, the prosecuting witness, testified that he lived at Hermleigh in Scurry County, Texas; that on June 2, 1939, he went to Sweetwater, Texas, and parked his 1936 Model Ford V-8 pickup, License No. 104,545, on the street early in the evening and when he started to go home about ten o’clock, the car was gone. He reported the matter to the city police department. On the following day, the car was recovered in the city of Abilene.

Two State Highway Patrolmen testified that on the night of June 2, 1939, they received information from the Sweetwater Police Department relative to the theft of a certain automobile and were on the lookout for it. About three miles west of Abilene the officers stopped a car which proved to be the one wanted. The appellant was driving it at the time and was accompanied by his companion Homer Collins. Upon being advised by the officers that the car was reported as stolen, neither the appellant nor his companion gave any explanation for their possession of it. They were then arrested by the officers and taken to Abilene and later delivered to the officers from Sweetwater.

The appellant did not testify upon the trial and did not offer any evidence in his behalf. He was not represented by counsel but undertook to conduct his own case.

No bills of exception appear in the record, but with the assistance of counsel, appellant prepared and presented a motion for new trial, which cannot be considered for the reason that it is not sworn to as required by statute. See Vernon’s Ann. Tex.C.C.P., Vol. 3, Art. 756, p. 63, note 11, and cases there cited. Furthermore, the allegations in the motion are controverted by the motion of counsel for the State, and the decision of the trial judge must prevail in the absence of a showing of an abuse of his discretion.

No error having been reflected by the record before us, the judgment is affirmed.


author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    COBB v. STATE.
    No. 20993.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    On Motion for Rehearing May 24, 1940.

      Ronald Smallwood, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of theft of property of the value of less than fifty and over five dollars, and his punishment assessed at confinement in the county jail for a period of thirty days.

The State’s testimony shows that on the morning of December 9, 1939, the appellant and his brother, in a Ford car with a trailer attached, drove onto T. A. Pate’s premises, picked up a tractor wheel and placed it into the trailer. Mr. Pate, who saw them, walked up to where they loaded the wheel and inquired of them what they were doing, to which one of the men replied that they were taking the tractor wheel. At the request of Mr. Pate, they put the wheel back. Mr. Pate made them drive into Lubbock, where he turned them over to the sheriff and then ma'de a complaint against each of them for theft. With reference to the valúe of the wheel, Mr. Pate testified: “I think that the wheel they had taken and put in the trailer probably ought to be worth ten dollars.” This was all and the only testimony as to the value of the wheel. Appellant did not testify or offer any affirmative defense.

The case was submitted to a jury who returned the following verdict: “We, the jury, find the defendant guilty as charged, and assess punishment at a fine of $0.00, and/or confinement in the County Jail of 30 days.”

It is obvious that the verdict' is uncertain and for that reason cannot be upheld. This court, in the case of Allen v. State, 136 S.W.2d 232, passed upon a verdict couched in similar language and held it insufficient. In the case of Compton v. State, 129 Tex.Cr.R. 648, 91 S.W.2d 732, the term “and/or” appearing in an indictment was severely criticized by this court.

We note that appellant in due time objected to the court’s charge on the ground that the court assumed the value of the wheel to be ten dollars. We suggest that upon another trial the court reform its charge so as to meet the objection.

From what we have said it follows that the judgment of the trial court must 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.

On Motion for Rehearing

HAWKINS, Presiding Judge.

Appellant files a motion calling attention to a matter which makes it necessary to change our order reversing and remanding of date April 24, 1940, to an order reversing and ordering a dismissal of the prosecution under the present information. The defect in the information was pointed out in appellant’s brief but was overlooked on original submission.

The offense was alleged to have been committed on December 9, 1939. Both the complaint and information were filed that same day. It is averred in the complaint that the offense was committed “before the making of this complaint,” but no such averment is found in the information. The statute, Art. 414, C. C. P. (1925) Subdivision 6, requires that the time alleged in the information be “some date anterior to the filing of the information.” It is held in Kennedy v. State, 22 Tex.App. 693, 3 S. W. 480, that the requisite mentioned must be apparent from the information itself, and that the complaint cannot be resorted to for supplying the omission from the information.

If there should be a further prosecution a new information should be filed complying with the requisite mentioned.

Our order heretofore made is amended and in addition to the reversal, the prosecution is ordered dismissed under the present information.


text:
    JAMES v. STATE.
    No. 20987.
    Court of Criminal Appeals of Texas.
    April 24, 1940.

      L. E. King, of Hemphill, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of fifteen years.

The indictment contained but one count in which appellant was charged with having killed Henry Lee with malice aforethought.

The testimony adduced by the State, briefly stated, shows that on the night of June 29, 1939, after the deceased had retired for the night, appellant appeared at the home of Henry Lee and called to him to come to the door. In response to the call, the deceased arose from his bed and started to the door to ascertain what the late visitor- wanted, but before the deceased reached the door appellant shot him with a shotgun from the effects of which he died early the next morning.

Appellant did not testify, offered no affirmative defense and filed no plea for a suspension of sentence.

By Bill of Exception No. 2 appellant complains of the action of the trial court in permitting the State to introduce in evidence an indictment returned by the grand jury in the year 1926, charging appellant with an assault to murder, together with a judgment of conviction based on the charge in said indictment. Appellant objected to the introduction of said documents and testimony upon the following grounds: “Because of the manner of proving the conviction, if there was a conviction, and for the further reason that all men are not the same all during the time of their lives; if they were at one time of one kind of character, they may at another time be of another kind of character, and there is room for improvement all the time. The introduction of the conviction has nothing to do with or throws any light on this murder charge.” While the objections urged against the evidence are vague and not a proper objection, yet this evidence was so obviously inadmissible that any kind of an objection would reach it under the status of the case. See Jordan v. State, 96 Tex.Cr.R. 622, 239 S.W. 585. It could not have been admitted to impeach him or to affect his credibility as a witness because he did not testify,-but if he did, it was too remote; nor did it shed any light on any issue of the case on trial. See Spiller v. State, 61 Tex.Cr.R. 555, 135 S.W. 549; Bowers v. State, Tex.Cr.App., 71 S.W. 284; Brown v. State, 56 Tex.Cr.R. 389, 120 S.W. 444; Vick v. State, 71 Tex.Cr.R. 50, 159 S.W. 50; and many other cases might be cited.

It is the established rule that one on trial charged with an offense, the evidence by which the charge is sought to be established, should be limited and confined to such facts and circumstances as are relevant and pertinent to show that the crime was committed, the identity of the accused and his connection therewith. Evidence of the commission of other extraneous offenses is ordinarily not admissible unless they tend to show identity, system, intent, etc.

Having reached the conclusion that the learned trial court fell into error by admitting the evidence of a remote and extraneous offense, 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.


text:
    GANDY v. STATE.
    No. 20699.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Lovett, Lovett & Ralston, of Corsicana, and Mark Smith, of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted in the county court of a violation of the weights and measures law, and by a jury fined the sum of $50, hence this appeal.

Appellant filed a motion to discharge the jury panel offered herein because of the fact that the term of the county court of Navarro County had been fixed by the county commissioners’ court at a special term thereof, whereas the statute, Art. 1962, R.C.S.1925, requires that such terms should be provided for by such an order entered at a regular term of such commissioners’ court. The testimony heard on such motion shows that the commissioners’ court did fix such terms of the county court, by an order entered in the year 1924, at a special term thereof, and same had not been changed until just before this case was called for trial, and that this jury had been summoned to appear for service prior to this last change. The new term beginning on May 8th, and the old term having begun on May 1st, this jury having been summoned to appear- at the May term, the appellant contended that such was an unlawful jury, and should have been dismissed.

The statute seems to be plain, and we quote: “The commissioners court may, at a regular term thereof, by an order entered upon its records, provide for more terms of the county court for the transaction of civil, criminal and probate business, and fix the times at which each of the four terms required by the Constitution, and the terms exceeding four, if any, shall be held, not to exceed six annually,, and may fix the length of each term” etc.

It is also to be noted that the Constitution contains two sections therein referring to the terms of the county court, the first provision being Sec. 17 of Art. V of that document, Vernon’s Apn.St., the portion applicable reading as follows: “The County Court shall hold a term for civil business at least once in every two months, and shall dispose of probate business, either in term time or vacation as may be provided by law, and said court shall hold a term for criminal business once in every month as may be provided by law,” etc.

However, we find the matter again referred to in that same Article V, Section 29 thereof, as follows : “The County Court shall hold at least four terms for both civil and criminal business annually, as may be provided by the Legislature, or by the Commissioners’ Court of the county under authority of law, and such other terms each year as may be fixed by the Commissioners’ Court; provided, the Commissioners’ Court of any county having fixed the times and number of terms of the County Court, shall not change the same again until the expiration of one year. Said court shall dispose of probate business either in term time or vacation, under such regulation as may be prescribed by law. Prosecutions may be commenced in said courts in such manner as is or may be provided by law, and a jury therein shall consist of six men. Until otherwise provided, the terms of the County Court shall be held on the first Mondays in February, May, August and November, and may remain in session three weeks.”

If the order entered by the commissioners’ court is invalid, and a jury appearing at the May term was drawn under such order, we would naturally find ourselves with no statutory authority of any kind for the setting of the terms of this Navarro County Court. There would be no terms provided by statutory law therefor. We would of necessity then be forced to accept the direction laid down in the Constitution for the designation of the terms of that court.- We do find, therefore, if the order of the commissioners’ court is void, that, the terms of the Navarro County Court were fixed by the Constitution as beginning on the first Monday in February, May, August and November. This jury was called for the May term, 1939, which met on Monday, May 1st, and was therefore a proper jury, appearing at a proper, legal and constitutional term of such court, and appellant’s complaint thereat was unfounded. If this was a legal order, then the jury was legal; if an illegal order, then the Constitution provided that May was a proper and legal term for this county court, and in either event the jury was properly present, and the panel should not have been dismissed. We overrule appellant’s contention set up in his motion to dismiss the jury.

We are aware of the fact also that Section 29 of Article V, supra, where in ap-' parent conflict with Section 17, Article V, supra, has been held to control such Section 17. See Kilgore v. State, 52 Texas Cr.R. 447, 108 S.W. 662,

The next proposition offered by appellant arises out of what is claimed to have been a fatal variance between the allegation and the proof.' The allegation in the complaint and information being, in substance, that appellant did offer to sell, expose for sale and sell to George Jones a certain commodity, to-wit: one gallon of ice cream, but as a matter of fact did offer to sell, expose for sale, and sell a less quantity than one gallon of ice cream. In other words the container in which he purported to sell one gallon of ice cream contained less than one gallon. The testimony is short and to the point. Mr. Kirkland, a State Inspector of the division of weights and measures, furnished Mr. George Jones, a bailiff of the grand jury, the sum of fifty-five cents and requested him to purchase from the Rainbow Ice Cream Company of Corsicana, Texas, one gallon of ice cream, the price shown to be advertised at such company’s place of business. J. E. Gandy, the appellant, was shown by his affidavit filed with the county clerk to be the Rainbow Ice Cream Company, operating same under that assumed name. Mr. Kirkland and Mr. Jones went into this establishment, and, addressing a young lady working behind the counter in such establishment, Mr. Jones called for a gallon of ice cream, and by her he was given a container thus marked, and he paid fifty-five cents therefor. J. N. Carr was also present at such time. “I do not know whether Mr. Gandy was present or not. There were three or four girls present in the building at that time; the one that sold me the cream was working there.”

Mr. Kirkland testified that he was a State Inspector of weights and measures; that he was present when Mr. Jones asked for a gallon of ice cream, and saw the young lady back of the counter give Mr. Jones the cream, and saw him pay for it. That he measured the contents of such can, which had been full of ice cream, in a standard measure, and the can held three quarts and one pint, or in other words the can was capable of holding one pint less than a gallon and no more, and could not possibly be made to contain as much as' a gallon of ice cream. Mr. Jones bought the ice cream and it was delivered to him and not to witness. .

Under the State’s proof we are of the opinion that the allegation that the sale was made to George Jones is met by the proof, and appellant’s contention is overruled.

Appellant’s further contention is that he should have been given a peremptory instruction- for a verdict of not guilty because it is nowhere shown that he was present or acted together with the person selling and using the false measure. It is to be noted that the statute, Art. 1037, P.C., denounces the offense herein complained of, in part, in the following language: “Any person who, by himself or by his servant or by his servant or agent of another person, shall offer or expose for sale, sell, use or retain in his possession any false weights or measures, or weighing or measuring devices, in the buying or selling of any commodity or thing * * * ; or who shall sell or offer or expose for sale less than the quantity he represents of any commodity, thing or service, * * * shall be guilty of a misdemeanor,” etc.

Art. 1037a, Vernon’s Ann.P.C., among other things, says: “The term ‘false weight or measure, or weighing and measuring devices,’ shall be construed to mean any weight or measure which does not conform. to the United States Standards of weight or measure or any weighing or measuring device which does not give correct results * * etc.

The difficulty that this case presents is as to the establishment of the identity of appellant with the person J. E. Gandy who signed the affidavit showing the use of the assumed name of Rainbow Ice Cream Company. Nowhere in the statement of facts is it shown that the J. E. Gandy.on trial is the same J. E. Gandy who signed the affidavit setting forth the fact that he was the owner and operator of the Rainbow Ice Cream Company.

In numerous cases before us, wherein -it became necessary to show that the person on trial had, been theretofore convicted in the courts . in order .that an enhanced •punishment might be given under the doctrine that such person was an habitual criminal, we have consistently held that it must be shown by direct proof that such person theretofore convicted was one .and the same as the person on trial. See Berthrong v. State, 136 Tex.Cr.R. 160, 124 S.W.2d 379; Walthall v. State, 109 Texas Cr.R. 26, 2 S.W.2d 442.

In line with these holdings, and because rthe identity of the owner, of the Rainbow Ice Cream Company was established only by means of the affidavit introduced herein, it should have been shown by proof that they are one and the same person. There being a failure to do so appearing herein, and there being no other testimony relative to such identity, the judgment is reversed and the cause remanded.


text:
    SIGLER v. STATE.
    No. 20915.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Ivan Irwin and Wallace B. Moore, botfi of Dallas, and B. F. Patterson, of San Antonio, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the District Court of Bexar County on a burglary charge, and under an enhanced penalty clause alleging former convictions, he was given a term of ten years.

Appellant resided in Dallas County, Texas. Mike Nolte lived in San Antonio, Texas, and had a beer distributing business situated at 1309 East Houston Street. The building was burglarized on April 23, 1939. The witness testified that he did not know who did it ; that it happened on Sunday, sometime between 12 o’clock noon and Monday morning.' A safe containing $1700 was cut open from the back and the money extracted. The tools used in doing so were left on the premises. They have never been identified and the appellant is not shown ever to have possessed them or-to have had any connection with them. A finger-print expert was called and he failed to find any finger prints on. the tools. The money taken was mostly in $1 bills. There was some silver. There were also checks in the amount of $911. There is no evidence to show that any of the money was in $5 or $10 bills. On the next day in Dallas, the appellant appeared at an automobile place with a girl and' purchased for her, in her own name, an automobile, making payment of $250 in $5 and $10 bills and larger ones. He testified that this money belonged to the young lady and that he was simply helping her to get the best bargain she could in a car and that she paid him $10 for his trouble. Appellant said that he was in Dallas County on that date and not in San Antonio, and denied any knowledge of the burglary. No one saw him in San Antonio, nor was he seen with anyone else connected with the burglary. Reliance is had for a conviction solely upon the written confession, signed by the appellant, which he repudiated upon the trial, claiming that he had been forced to sign it.

The facts with reference to the confession and the appellant’s connection with it may be summarized as follows: One Carlos E. Breazeale testified that he lived in Dallas and was employed by a Distributing Company which handled the same brand of beer which Nolte handled in San Antonio; that he made a contract with Gily Nabors, said to be a man with a criminal record in Dallas, by which witness was to mark a place on the San Antonio warehouse where an entrance might be made and arrange for the robbery which Nabors was to perpetrate and give Breazeale twenty per cent of what he got for Breazeale’s services. This was carried out and Nabors gave him $280. He gives no evidence of having any connection with the appellant whatsoever.

The statement of appellant was taken by E. D. Schacklett, Clerk of the San Antonm Police Department. He used a printed form in making the statement, but the record does not disclose how much was printed and how much was written in. He was called by the police, in the manner hereinafter stated, about 2 o’clock one night for the purpose of taking this statement and did so while the officers involved were in and out of the room and about the premises. The exact date of the statement is not given by the witness and the same is not dated. The date of the statement may be ascertained by calculating the number of days from the date of the arrest hereinafter detailed, which we find to be on the 29th day of June. That seems to be verified by the statement of A. G. Lankford, a City Detective of San Antonio.

The appellant testified in his own behalf and stated that he was reared in Kaufman County, Texas, where his family now resides, but during the past several years he had lived in Dallas. He did not know where he was on Sunday, April 23d, the date of the burglary, other than that he was in Dallas. He was arrested on the 20th of June and brought to San Antonio. Upon arriving there, he was carried to the Ranger Department in a big white building. He says they took him upstairs for about an hour and a half and then to Alamo Heights and1 placed him in a little room with bars on. it.

. On the evening of the second night (presumably June 21st) they took him to-Floresville. He was accompanied by three-officers, Smith, Robinson and Lankford,, and another fellow whose name he did not. know. He testified further that they stayed with him all night in Floresville;. that they took him over to the court house-thfe next morning at 10 o’clock and took, him back to the sheriff’s quarters; that they stood him up all night and all day,, asking him questions. Some one would stay with him all the time while others-slept. When he would sit down the officers would kick him and make him get up. He was made to stand up from about 10 o’clock in the morning until that night, without any chance to sleep, and all that night and day and the next day until about 11 o’clock. He had nothing to eat and no place to sleep. They next took him to San Antonio and put him in the city jail, where he stayed the rest of the night and the next day, and the next night they came up and brought him to a little room about 12 o’clock, when one of the officers got some rubber hose and struck him with it and also with his fist. They cursed him and demanded that he sign the statement or they were going to beat him to death. He told them that he knew nothing about it, and they told him that they would tell 'him what to say. This continued for hours. While he promised he would sign the statement, he did this because they were going to beat him to death. He was in fear of his life. An officer told him that they would take him out in a car and throw him out and kill him; that he had killed one and would like to kill another. They told him what to say before calling the clerk to take his statement. They repeated it three or four times. He said exactly what they had told him to say; that he knew that they would beat him to death if he did not do so. He said he did not put anything in there but what they told him to put in. They then took him back to jail about 3 o’clock in the morning, and the next morning his bond was approved and he was released. A lawyer in Dallas had prepared a bond and sent it to San Antonio where it appears to have been waiting for several days. Upon being released, he went to Mr. Schlesinger, who took him to some parties to observe his condition. They also took him to a photographer and had pictures made of his naked body which appear in the record and show black and blue bruises at various places from head to foot. These were said to be fresh.

Appellant testified upon cross-examination and re-direct examination that he was released from the penitentiary in 1936; that since said time he had been frequently picked up and placed in jail and carried from place to place and investigated for crimes but was always released; that he was now under indictment in Dallas County on a charge of being an habitual criminal. This charge had been pending for some time but he had never been tried.

A photographer who took the pictures found in the record identified them and said they were taken of the appellant on or about the date of his release. Upon examination, he found bruises all over the right arm, from the shoulder down to the elbow, and the whole right thigh, and then another mark on the left thigh. He testified that they were fresh bruises. The pictures were made at 10 o’clock in the morning. This was on June 29th ór 30th.

Zeno Smith, a State Ranger assigned to many of the criminal cases throughout the state, testified that he was called into the case by Robinson and Lankford. There is no denial by him or any other officer that the appellant was taken to the places which he stated, but it is further related that they also took him to Seguin and San Marcos. Smith said that they took him to Floresville “because we wanted to question him about this case. We took him to Floresville without leaving word where we had gone.’’ This was on the 24th or the 25th of June. They left at 9:30 o’clock at night. He said the prisoner was kindly treated while they talked to him about the case. They talked to him in the court house and in the jail quarters. They provided no place for him to sleep but offered him a “nice dinner” which he refused. They gave him tobacco and everything he wanted during that time and used no force on him whatsoever. They tried to find somebody who had seen him in that vicinity on or about the date of the burglary but failed to do so. Robinson and Lank-ford went to Dallas, stayed there a couple of days and then returned. He was continuously in the custody of some of these officers. Finally, the witness related that the prisoner told them that they had been so nice to him and treated him “fairer than any officers ever treated me, and I want to make this statement to you because you have been nice to me.” He detailed statements which the appellant made about being in jail at Tyler and other places. After making the statement, he asked the officers if they did not think that 'was a good statement; that they told him they wanted nothing but the facts. The witness admits that appellant was taken to a different place and not placed in the Bexar County jail because he understood they had a writ of habeas corpus to produce him in court and that they were evading process by carrying him to these different places.

Charles Fuller, a deputy sheriff in Wilson County testified that when the prisoner was brought to Floresville, he was taken to the court house and forced to stand up for four or five hours. He sat down part of the time in jail; that he was talked to all day; that at that time he did not see any marks on him or any bruises.

Mr. Sample, a brother of the woman sheriff and who lived with her, told about his (appellant) being there; that they took him to the District Court room and questioned him all night. There were no beds or places to sleep. The prisoner stayed up all night. For twenty-four hours he was not permitted to go to bed.

J. H. Passant, who accompanied other officers to Floresville, detailed about the same transaction but said that they were in the jury room and lay on beds and talked to the prisoner all afternoon; that they left San Antonio at 9 o’clock one’ night and returned there during the next afternoon. He did not know what time, but it was before 9 o’clock. He does not recall that the appellant slept. The prisoner was questioned all the time he was with them.

J. G. Lankford was one of the arresting officers. Upon arriving in San Antonio, they stopped at the State Highway Building and questioned the prisoner there. They ’took him to the Alamo Heights jail and left him, where he stayed from the 20th to the 22d. He tells the story of questioning the appellant in Floresville and said that he was permitted to sit down when he wanted to; that he was given water several times during the day and offered dinner which he refused; that in all he had been 79½ hours on the job. On the night before appellant made the statement, the witness and his companion returned from Dallas around 11 o'clock and went up to the jail, got appellant and took him to the Detectives’ Office and talked to him about two hours “before he agreed to make the statement.” He said they secured some information in Dallas that helped thenj; that they let him know that they knew what was going on in Dallas. “Then he agreed to make this statement.” They got their information from Breazeale, but they did not tell what that information was. The witness denies much of the testimony of the appellant. On the morning -after the statement was taken, they were served with a writ to have him in court. They went to the jail, brought him by and had him look at the tools which had been found at the scene of the burglary, and had him to identify the tools. (This the appellant said he was forced to do.)

G. E. Robinson, another officer who worked with Lankford, testified to the places they had taken the appellant, first to the Alamo Heights jail and then to the county jail. The witness said: “From there we went and took him to Floresville because we heard there was a writ of habeas corpus and they would not be able to locate us and serve the writ. We had not completed our investigation.” He denies that they kept appellant standing and punished him in the manner testified about, but admits that they kept him up the entire time. He said they brought him a pitcher of water and gave him Coca-Cola and cigarettes. He denies the use of any force. They also took appellant to New Braunfels and worked back to San Antonio through tourists’ courts at various places. The witness said: “Based on the information we got in Dallas we questioned Sigler again. We got this confession out of Breazeale here in San Antonio.” After they returned,, the three officers started questioning him again. The witness further said: “Based on the information we got in Dallas he agreed to make a confession.” He again said that appellant told Mr. Smith that “we had been so nice to him that he was going to tell the truth about the whole-thing.”

Without dispute, these officers kept appellant out of the jail to which it was their-duty, under the law and the process in their hands, to deliver him. Without any apparent information on the subject, they took him to various tourists’ courts to see if any one could recognize him as being there about the time of the burglary. They got no results, and their efforts seem to be trivial, based on no information warranting them in believing that they could secure the information which they say they were seeking. They admit they questioned him. They say, “We got this confession”, etc. A confession which officers “get” from a prisoner is not a voluntary confession as contemplated by the statute.

In view of the ever-growing practice of a few arresting officers in the State of Texas to go beyond the bounds of their duty in this respect, and the frequency with which such complaints come to this court, it now seems appropriate that we call attention to the constitutional provisions, both federal and state, on the subject in order that the officers involved may understand and be reminded that this court can hardly write more clearly on the subject that it has in the past.

The Fifth Amendment to the Constitution of the United States provides that no person “shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

By the Fourteenth Amendment, it is again provided that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In Section 9 of Article 1 of the Constitution of the United States, it is said: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Constitution of Texas, Section 12, Article 1, Vernon’s Ann.St., provides: “The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”

Our Legislature has enacted what has heretofore been considered adequate procedure, as directed by the Constitution.

The statement of facts in this case makes it clear and plain that the confession introduced in evidence was not voluntarily made; that the officers in charge of the prisoner not only acted without their legal powers and went beyond the duties conferred upon them by law but in utter contempt of the provisions of the Constitution of the United States and of the State of Texas and in disrespect of the court which they are charged by law with serving.

- In the recent case of Chambers et al. v. State of Florida, 60 S.Ct. 472, 479, 84 L.Ed. -, decided by the Supreme Court of the United States on February 12, 1940, it is made clear that a federal question is raised by which that court will take jurisdiction. Under the circumstances of that case it was held that the confession was not voluntarily made but came after relentless efforts upon the part of the officers to “break” the prisoners’ will and render them helpless to resist their accusers further. The court said: “To permit human lives to be forfeited upon confessions thus obtained would make of the constitutional requirement of due process of law a meaningless symbol.”

Regardless of the end to be obtained, the • means used in that case was denounced. It was said further: “Under our constitutional system, courts stand against any winds that blow a.s havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned- and' inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuasion.”

Our Constitution provides for an inquisitorial body legally clothed with cautious procedure and sufficient power, known as the grand jury. No such authority is vested in any arresting officer and wise is that provision. If the admitted conduct in this case is to be tolerated, we had as well scrap our Constitution and suspend our statutory laws and delegate all authority in such matters to the individual, or group of individuals, whether with gun on the hip or lash in the hand, who happen to receive a commission as a peace officer. Such action as that revealed in this case cannot receive judicial sanction.

In the case of Blackshear v. State, 130 Tex.Cr.R. 557, 95 S.W.2d 960, 962, Judge Hawkins quoted from State v. Miller, 61 Wash. 125, 111 P. 1053, Ann.Cas.1912B, 1053, with approval, as follows: “Neither policemen, detectives, nor jailers are clothed in this country with inquisitorial powers. It is true that some of the laws of Spain have been ingrafted on ours; but not the dungeon, the bludgeon, the burning faggot or any of the concomitant tortures of the Inquisition. These belong to the ages of bigotry, intolerance, and superstition, and have no place in our civilization. An attempt to revive them, even in mild form, ought to call forth the execration of the people, and the severest condemnation of the law.”

Following the Blackshear case, this court had a very similar state of facts before it in Abston v. State, 102 S.W.2d 428. It is there said that proof showing the confession was voluntary is essential to admit it in evidence. On the State’s motion for rehearing, Judge Hawkins called attention to-the two articles of the statute hereinafter quoted and also to Article 1157 of the Penal Code providing punishment for officers found guilty of extorting confessions by certain mistreatment and prescribing their disqualification to forever thereafter hold office in this state.

If the officers of the state, charged with the solemn duty of keeping the peace and bringing to the bars of justice those who violate the laws, do not themselves respect the basic laws of the land, it becomes for us a sad day. The above quotation may well be announced, as it was in the Blackshear case, as a fixed policy of this court.

What power or authority had the arresting officers in this case other than that which was specified in the warrant placed in their hands? What right had they to subject the appellant to the gruelling examination for hours and days as they themselves admit? Where is the law authorizing an officer to evade the process o°f the court of which he is a part? If the officers of our state do not themselves respect the laws, they forfeit all right and authority in their commission to enforce them. The admitted act of the officers in this case who testified that they evaded a process declared by our Constitution to be a writ of right, a sacred protection to the liberty of our citizens, is a violation of the oath of office which they took to support the Constitution of the United States and of the State of Texas. How they could appear in court with such admissions and expect their testimony to be accepted is inconceivable.

Article 726, C.C.P., provides that “the confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion, under the rules hereafter prescribed.”

Article 727, C.C.P., prohibits the use of a confession “unless made in the voluntary statement of accused”, reduced to writing and signed by him.

The authorities holding that confessions obtained by threats or made from fear are inadmissible are sufficiently clear to require that the court, in this case, hold the purported confession inadmissible as evidence against the appellant. Simmons v. State, 107 Tex.Cr.R. 504, 296 S.W. 513; Hernandez v. State, 110 Tex.Cr.R. 159, 8 S.W.2d 947; White v. State, 93 Tex.Cr.R. 532, 248 S.W. 690; Kelley v. State, 99 Tex.Cr.R. 403, 269 S.W. 796; Thompson v. State, 124 Tex.Cr.R. 440, 63 S.W.2d 849; Blackshear v. State, 130 Tex.Cr.R. 557, 95 S.W.2d 960; 20 Amer.Jur., p. 433, secs. 501 and 518; Wharton’s Crim.Ev., (11th Ed.) Vol. 2, p. 1019, sec. 608; 24 A.L.R. 703, (annotations) ; Jackson v. State, 50 Tex.Cr.R. 302, 97 S.W. 312; Chambers v. Florida, 60 S.Ct. 472, 84 L.Ed.; Abston v. State, Tex.Cr. App., 102 S.W.2d 428.

We need not rely upon the statement of the appellant, himself detailing the horrible experience which he was forced to endure, although he is strongly corroborated by the photographer and the pictures which were introduced in the case. The admission of the officers themselves, all of whom were called by the prosecution, is sufficient to require that this court reverse the case and remand it for a new trial, which is accordingly done.


author: WILLIAMS, Justice.

text:
    BANTUELLE v. EVANS.
    No. 5546.
    Court of Civil Appeals of Texas. Texarkana.
    April 17, 1940.
    Rehearing Denied April 25, 1940.
    E. Newt Spivey and W. T. Williams, both of Texarkana, for appellant.
    Wm. V. Brown, of Texarkana, for ap-pellee.
   WILLIAMS, Justice.

A two-wheel trailer attached to appellant’s automobile, going south, and appel-lee’s automobile, going north, collided on a wet asphalt pavement. It is without dispute that appellant’s car was skidding as it approached a 30-foot bridge. After the collision this car was resting about fifteen feet south of the bridge, headed at an angle into an embankment, with the trailer extending into the highway. Appellee’s car was in a ditch on the opposite side. Appel-lee contended in her pleading and evidence that appellant was driving at an excessive rate of speed as he approached the bridge from out of a curve, and negligently applied the brakes and caused his car to swerve and swing the trailer into and strike appellee’s car as same was in the act of passing. Appellant contends that appel-lee saw, or by the use of ordinary care could have seen, the swerving car in time to have stopped and avoided the collision, but negligently ran into appellant’s car after it had practically come to a stop. Special issues which involved these respective contentions were submitted to the jury. The jury found the collision, was not due to an unavoidable accident; absolved appellee from any alleged negligent act, and found appellant guilty of operating his car at an excessive rate of speed and negligently applied his brakes under the circumstances, and each to be a proximate cause of the collision. Appellee recovered judgment for damages to her automobile.

Appellant’s sole proposition asserts that the evidence is insufficient to support the findings of the jury. The evidence has been carefully examined, and though conflicting, the conclusion is not to be reached that the evidence is insufficient to support the jury’s findings. Under such a condition of the record, an appellate court will hot disturb same. 3 T.J. p. 1096, Sec. 768, and authorities there cited.

The judgment is affirmed.