author: CRITZ, Justice.

text:
    WESTERN ENGINEERING CO. v. EWING et al.
    No. 7467.
    Supreme Court of Texas.
    Oct. 30, 1940.

      Wilson, Ogden & Reichman and E. M. Reichman, all of Dallas, for relator.
    Sanders & Scott, of Amarillo, for respondents.
   CRITZ, Justice.

The outcome of this proceeding depends on the effect of a judgment entered in this court in V. D. Anderson Company et al. v. Young, Judge, et al., 128 Tex. 631, 101 S.W.2d 798. In the interest of brevity we refer to that opinion for a detailed statement of the facts and issues leading up to the filing of this proceeding. In order that this opinion may- be reasonably complete within itself, we make the following statement.

G. O. McCrohan- and Wheeler Cotton Oil Company filed a suit in the District Court of Wheeler County, Texas, against Western Engineering Company and V. D. Anderson Company, both corporations. In such suit McCrohan and Wheeler Cotton Oil Company sought judgment can-celling a note and mortgage originally given by McCrohan to Western Engineering Company, and for damages. The note and mortgage were given in consideration of certain oil mill machinery and equipment sold by Western Engineering Company to McCrohan. Wheeler Cotton Oil Company seems to have succeeded to the ownership of such property. V. D. Anderson Company was made defendant to the suit in Wheeler County on the allegation that it claimed to have some interest in the note and mortgage. As we understand it, no relief was sought against V. D. Anderson Company, except the cancellation of such instruments.

After the above suit was filed in the District Court of Wheeler County, V. D. Anderson Company, as alleged owner and holder, filed suit on the above-mentioned note and mortgage against McCrohan and Wheeler Cotton Oil Company in the District Court of Dallas County, Texas. Western Engineering Company was not a party to such suit.

After the Dallas County suit was filed, McCrohan and Wheeler Cotton Oil Company filed plea in abatement therein, on the ground that jurisdiction lay in the Wheeler County District Court because the suit in that court was first filed, and because that suit involved the same subject matter and issues as the Dallas County suit in so far as V. D. Anderson Company was concerned. V. D. Anderson Company answered such plea in abatement, alleging that McCrohan and Wheeler Cotton Oil Company had been guilty of certain fraudulent conduct which had enabled them to file the Wheeler County suit first. The Dallas - County District Court heard this plea in abatement, including the facts pertaining thereto, and overruled the same.

After the overruling of their plea in abatement by the Dallas County District Court, McCrohan and Wheeler Cotton Oil Company caused the Wheeler County District Court to restrain V. D. Anderson Company from further prosecuting the Dallas County suit. After the issuance of such restraining order the judge of' the Dallas County District Court desisted from taking any further action in the cause.

After the happening of the above events, V. D. Anderson Company and its attorneys applied to this court for mandamus to compel the Dallas County District Court to proceed to try and finally dispose of the case pending therein. On final hearing of that case in this court, we entered the following order: “It is ordered that Judge Towne Young, judge of the Forty-Fourth district court of Dallas county, Tex., and his successor in office, shall proceed to final trial and judgment in the case pending in that court. It is further ordered that the judge of the Wheeler county district court, and the other respondents in this court shall proceed no further with the case in the Wheeler county district court, except to dismiss it, if they so desire, pending final judgment in the Dallas county case. It is further ordered that in the event the order of the district court of Dallas county overruling the plea in abatement in that court becomes final, then no further action shall be had in the Wheeler county case, except to dismiss it. In the event it shall be finally determined that the' plea in abatement in the Dallas county case should be sustained, then the Wheeler county district court can proceed as though the case had not been filed in the Dallas county district court. It is further ordered that McCrohan and Wheeler Cotton Oil Company pay all costs of this proceeding.”

After the entry of the final judgment by this court in the proceeding just above referred to, the suit of V. D. Anderson Company against McCrohan and Wheeler Cotton Oil Company then pending in the District Court of Dallas County was tried finally, and, as we understand, judgment was rendered for V. D. Anderson Company awarding to it recovery on the note and foreclosure of the chattel mortgage securing the same. We also understand that such judgment was not appealed from, and that it has been fully satisfied.

After the happening of the above events McCrohan and Wheeler, Cotton Oil Company dismissed their suit in the Wheeler County District Court as against V. D. Anderson Company, and are now attempting to try the action in that court for damages against Western Engineering Company based on allegations pf fraud and deceit, breach of warranty, and fraudulent representations incident to the original transaction in which Western Engineering Company sold McCrohan the 'oil mill machinery and equipment, and McCrohan executed the note and mortgage recovered on in the Dallas County suit. This proceeding has been filed in this court by Western Engineering Company against the judge of the Wheeler County District Court, McCrohan, Wheeler Cotton Oil Company,- and their attorneys to prohibit and enjoin such respondents from proceeding further in the case pending in the Wheeler County District Court against Western Engineering Company alone.

Relator in this proceeding contends that the attempt of McCrohan and Wheeler Cotton Oil Company to now prosecute their action in the Wheeler County District Court is in violation of the judgment of this court in the former mandamus proceeding above described. This contention is based on the theory that that part 'of the judgment in that case, which provides, “It is further ordered that in the event the Order of the District Court of Dallas County overruling the Plea in Abatement in that Court become final, then no further action shall be had in the Wheeler County case, except to dismiss it,” had effect to finally prohibit the District Court of Wheeler County from trying even the damage suit of McCrohan and Wheeler Cotton Oil Company against Western Engineering Company, if the plea in abatement filed in the Dallas County District Court should be finally sustained.

Under this record, we are unable to see how our former order can be given effect to require the dismissal of the case in Wheeler County against Western Engineering .Company for damages. V. D. Anderson Company was not interested in that matter, and the damage suit against Western Engineering Company, so far as we know, did not conflict with the suit of V. D. Anderson Company to recover on the note and mortgage in Dallas County. It was only the conflict of jurisdiction that we settled in the former action in this court, and our former judgment requiring the dismissal of the Wheeler County suit only referred to the suit against V. D. Anderson Company.

It is ordered that the writ of prohibition or injunction here sought be refused. Such refusal is without prejudice to the right of Western Engineering Company to make any defenses in the Wheeler County suit that it could have made if it had not filed this proceeding. Western Engineering Company shall pay all costs of this proceeding.


source: Caselaw Access Project

author: HICKMAN, Commissioner.

license: Public Domain

text:
    FLEMING v. HOUSTON LIGHTING & POWER CO.
    Motion No. 14488; No. 7621.
    Supreme Court of Texas.
    Oct. 30, 1940.

      For original opinion, see 138 S.W.2d 520.
    Fulbright, Crooker & Freeman, A. T. Lamonte, Robert -L. Sonfield, and C. A. Leddy, all of Houston, for plaintiffs in error.
    W. P. Hamblen, F. G. Coates,- and Baker, Botts, Andrews & Wharton, all of Houston, for defendants in error.
    Sewall Myer, City Atty., Vernon Coe and Will Sears, Asst. City Attys., all of Houston, Cantey, Hanger, McMahon, McKnight & Johnson and R. K. Hanger, all of Fort Worth, Wagstaff, Harwell, Douthit & Alvis, of Abilene, Burford, Ryburn, Hincks & Charlton, of Dallas, Brooks, Napier, Brown & Matthews, of San Antonio, Vinson, El-kins, Weems & Francis, of Houston, Kemp Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, Woodul, Arterbury & Folk, of Houston, Crenshaw, Dupree & Milam, of Lubbock, Cox & Brown, of Temple, Marshall, Newcomb, of Dallas, and Looney & Clark, and Black, Graves & Stayton, all of Austin, amici curiae.
   HICKMAN, Commissioner.

The argument is pressed on motion for rehearing and by amici curia: that the ordinance in question is in conflict with, and forbidden by, Article 7060, R.C.S.1925, as a-niended by sec. 3, part 4 of ch. 495 of the Acts of the 44th Legislature, 3rd Called Session, Vernon’s Ann.Civ.St. art. 7060. That article increased the taxes on gross receipts required to be paid by gas, electric and water utilities and further amended Article 7060, by adding thereto the following: “No city or other political subdivision of this State, by virtue of its taxing power, police power or otherwise shall impose an occupation tax or charge of any sort for the privilege of doing business upon any person, corporation or association required to pay an occupation tax under this Article, provided that nothing in this Article shall be construed to prohibit the collection of any tax now imposed by a franchise, and provided further that this Article shall not affect any contracts now in existence or hereafter made between a city and the holder of a franchise.”

Since we did not discuss that article in our original opinion, and since so much reliance is being placed thereon, we have concluded to make this statement with reference thereto: The ordinance did not impose a charge for the privilege of doing business. Evidence was offered upon the hearing that it would be possible for the Company to carry on its business within the City without the necessity of using its streets, alleys or other public ways.

We sustained the ordinance upon the ground that same imposed a charge in the ■ nature of a rental. If that holding is correct, then the amendment above copied does not apply at all. The authorities recognize a distinction between a rental charge and a tax or charge for the privilege of doing business. It is clearly pointed out in the leading case of City of St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13 S.Ct. 485, 37 L.Ed. 380. The reply of plaintiffs in error to the argument of amici curiae presents other reasons for the contention that the amendment has no application, one of which is the claim that same was unconstitutional, because not covered by the caption. We expressly do not pass on any of those contentions.

The motion for rehearing is overruled.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    PHŒNIX REFINING CO. v. KILGORE NAT. BANK et al.
    No. 2317—7523.
    Commission of Appeals of Texas, Section A.
    Oct. 30, 1940.
    Forsythe & Kepke, of Dallas, and W. H. Russell and Russell & Beaucaire, all of San Antonio, for plaintiff in error.
    Andrews, Kelley, Kurth & Campbell, of Plouston, Touchstone, Wight, Gormley, Strasburger & Price and McNees & Roberts, all of Dallas, and Geo. I. McGee, of Kilgore, for defendants in error.
   GERMAN, Commissioner.

The following general statement of the nature and result of this suit is taken from the opinion of the Court of Civil Appeals:

“In December 1932, H. I. McGrew contracted with Phcenix Refining Company for the sale of ten cars of crude oil. Shortly thereafter, one Jim Brock applied to the agent of the International-Great Northern Railroad Company at Kilgore for a bill of lading for nine cars of crude oil to be shipped to Phoenix Refining Company at Dallas. Said agent at first refused to issue bill of lading because he did not know Brock, but later, on the latter’s being identified, the bill of lading was issued as requested. Said bill of lading is designated as ‘Uniform Straight Bill of Lading. Original— Not Negotiable,’ and was for the shipment of nine tank cars of crude oil ‘loaded shell full,’ the numbers and initials of the cars being given. It was marked ‘S.L.C.,’ which is interpreted ‘shipper’s load and count.’ Shortly after the issuance of the bill of lading, McGrew presented same with draft on Phoenix Refining Company for the sale price of the oil to Kilgore National Bank, and said bank, after communicating with Phoenix Refining Company, paid the amount of the draft to McGrew. The railroad company shipped the cars to Long-view and attempted to deliver the same to its connecting carrier, when it was ' discovered for the first time that the cars were empty. It was later learned that said cars had no oil in them at the time the bill of lading was issued. The Kilgore National Bank brought this suit against Phcenix Refining Company to recover the amount of the draft paid by it, and Phoenix Refining Company sued the International-Great Northern Railroad Company and its trustees for damages for carelessly issuing the bill of lading without actually receiving the oil. A trial before a jury resulted in judgment for the bank against the Phcenix Refining Company for the amount sued for, but the refining company failed to recover from the railroad company and its trustees.”

Judgment of the trial court was affirmed by the Court of Civil Appeals. 121 S.W.2d 636.

While in petition for writ of error plaintiff in error presents certain assignments as to the judgment of the bank against it, yet most of the assignments relate to the action of the trial court (affirmed by the Court of Civil Appeals) in failing to allow a recovery over against the railway company and its trustees. The Court of Civil Appeals has undoubtedly correctly disposed of all questions .as regards the judgment in favor of the bank, and further discussion of such assignments is unnecessary. The writ of error was granted upon the construction of a statute which it was alleged materially affected the decision with reference to liability against the railway company.

It will be observed that as to the liability of the railway company the Court of Civil Appeals based its holding primarily upon the proposition that ordinarily a railway company is not liable to an innocent purchaser of a bill of lading issued by an agent when no goods are' received for transportation. Liability of a railway company upon a bill of lading issued by its agent when no goods are actually received for transportation was formally denied as to even an innocent purchaser upon the ground that the agent was without authority to issue bills of lading when no goods were actually received for shipment. The case of Friedlander v. T. & P. Ry. Co., 130 U.S. 416, 9 S.Ct. 570, 32 L.Ed. 991, was regarded as the foundation of such holding, and it was followed by many State courts, including our own. In the recent case of Gleason v. Seaboard Air Line Ry. Co., 278 U.S. 349, 49 S.Ct, 161, 73 L.Ed. 415, it was held that as to interstate shipments this rule, as regards agency, has been modified by section 22 of the Federal Bills of Lading Act, 49 U.S.C. A. § 102, which section is printed at the bottom of page 355 of 278 U.S., at page 162 of 49 S.Ct., 73 L.Ed. 415. It will be noted, however, that this rule is modified only as regards (a) “the owner of goods covered by a straight bill of lading,” and (b) as to “the holder of an order bill, who has given value in good faith, relying upon the description therein of the goods.” In this regard, therefore, the decision is of no value to plaintiff in error, as there never was any “owner” of the goods (there being no goods in existence), and it was not the holder of an “order” bill of lading and did not rely upon the recitals of the bill of lading in question, as will hereinafter be shown. As we understand the Gleason case, it did not overrule the prior holdings, except to the extent that same had been modified by section 22 of the Bills of Lading Act.

We are inclined to agree with counsel for plaintiff in error that Article 894 of the Revised Statutes of 1925 has abolished the rule of non-liability in this State so far as it was based on authority of the agent. However, it has not extended liability in any other respect. The article mentioned is as follows:

“Each bill of lading issued by the authorized agent of any carrier or receiver thereof, affected by this law, shall be held to be the act and deed of such carrier or receiver thereof, and the principal shall be liable thereon in accordance zvith the terms thereof. When any such bill of lading shall be validated, authenticated or certified in accordance with the rules and regulations herein provided for, and as the Railroad Commission may prescribe in accordance with the provisions of this law, and in the hands of an innocent holder for value, it shall be incontestable as to the matters and things therein set forth.” (Emphasis ours.)

This article explicitly provides the conditions under which an innocent holder for value of a bill of lading is protected. As the law makes provision for a bill of lading to be “validated, authenticated or certified,” it necessarily by implication permits the issuance of a bill of lading, such as was issued in this instance. Gulf C. & S. F. Ry. Co. v. Kempner, Tex.Com.App., 282 S.W. 795.

It will be noted, however, that the Court of Civil Appeals based its holding upon the more modern rule, which is expressed by that court in this language: “Such bills of lading stand merely as symbols or representatives of the goods for which they were issued, and as chattels are not negotiable in the true, sense, that quality cannot be given to the symbols; and while the transfer of a bill of lading may in some instances be sufficient to> transfer the title of the holder thereof to the property which it represents, its negotiation ordinarily carries with it only such rights as the assignor had thereunder and no more.” It is appropriate to note here that the bill of lading issued in this instance was expressly stated to be “non-negotiable.” Counsel for plaintiff in error has cited no statute which would change this rule so far as the present case is concerned.

However, this holding of the Court of Civil Appeals does not exactly dispose of the real contention which plaintiff in error insists is the true basis of its suit, towit, negligence of the railway company in issuing the bill of lading which resulted in injury to plaintiff in error.

Counsel rely strongly on the case of Gleason v. Seaboard Air Line Railway Company, supra, in this regard. In the Gleason case the Supreme Court of the United States expressly overruled certain language in the case of Friedlander v. T. & P. Ry. Co., supra, in so far as it tended to deny liability to Gleason upon the grounds of negligence. It will be noted, however, that in the Gleason case the cause of action which was upheld was “a cause of action in deceit by McDonnell acting as agent of respondent in giving the petitioner the false notice and set up that the petitioner was induced to pay the draft by the representation that the cotton had arrived.” Such a contention was distinctly different from the alleged negligence in the present case.

In view of the annotations appearing upon the face, of the bill of lading (it not being an “order” bill, nor validated, authenticated or verified), we are not prepared to say that the railway company made deceitful representations upon which plaintiff in error had a right to rely. Assuming, however, that the company was guilty of negligence in issuing the bill of lading under the circumstances, and assuming further that the pleadings of plaintiff in error are sufficient upon which to base an action on such negligence (which is extremely doubtful), it nevertheless is undisputably shown by the evidence that plaintiff in error in no respect relied upon the bill of lading, and such alleged negligence was not the cause of injury to it.

The record discloses that the bank recovered of plaintiff in error solely upon it guarantee or promise to pay the draft drawn by McGrew. It did not rely upon the bill of lading in any respect. It did not pay the draft in reliance on anything disclosed by the bill of lading, but solely upon the independent agreement of plaintiff in error that'it would protect the bank in such payment. In addition, plaintiff in error never relied upon the bill of lading in any respect. It never accepted same, but refused to pay the draft when presented. Mr. Wallace, who represented the company in the whole matter, expressly stated that he relied upon the bank to satisfy itself that the oil had been loaded into the car. The testimony warrants the inference that the bill of lading was never mentioned in the conversation over the telephone between the vice-president of the bank and Mr. Wallace. The vice-president of the bank expressly stated that he would not have paid the draft and taken up the bill of lading except for the assurance of plaintiff in error' that it would guarantee its payment. The jury accepted this version of the evidence. The evidence plainly discloses that plaintiff in error was the victim of the fraud of McGrew, and its confidence in him was the sole cause of its injury, and the issuing of the bill of lading had nothing whatever to do with its loss.

For the reasons stated herein the judgments of the trial court and of the Court of Civil Appeals are affirmed.

Opinion adopted by the Supreme Court.


text:
    FEDERAL LAND BANK OF HOUSTON v. BROOKS et al.
    No. 2323—7535.
    Commission of Appeals of Texas, Section A.
    Oct. 30, 1940.
    Carl Runge, H. A. Berry, and C. L. Terry, all of Houston, for plaintiff in error. •
    Seale & Thompson, of Nacogdoches, and Dallas Ivey, Lane & Anderson, and J. M. Sanders, all of Center, for appellees.
   HICKMAN, Commissioner.

This is an action in trespass to try title instituted by plaintiff in error, the Federal Land Bank of Houston, against a number of defendants, their names being set out in the opinion of the Court of Civil Appeals. 124 S.W.2d 161. As we view the record, the question for decision is not at all involved or difficult and it is thought that a condensed statement will he sufficient to disclose the basis of our holding.

Robert Hairston and wife, Ida Hairston, executed to plaintiff in error their promissory note and, as security therefor, executed and delivered to M. H. Gossett, trustee, a deed of trust conveying to such trustee 137½ acres of land out of the Thomas Smith headright survey in Shelby County, said land being one tract and being described as such in the deed of trust. Later by trustee’s deed the land was conveyed-to plaintiff in error and thereafter this suit was instituted to try title thereto. The land was described in the petition as one tract the same as in the deed of trust and trustee’s deed. After the deed of trust was executed Hairston and wife conveyed 66 acres of the land to Stroud, Kelley and T. P. Todd and 71½ acres thereof to H. P. McLendon. The defendants below were Kelley, Todd and McLen-don, and all persons shown by the records to be claiming any interest in the property under them. Some of the defendants defaulted, others filed disclaimers and still others filed answers containing pleas of not guilty. The plaintiff in error introduced certain instruments, not necessary here to detail, for the purpose of establishing, (a) common source, and, (b) that from such source its title was superior to that of the defendants. It so happened that all of the defendants who filed pleas of not guilty, being hereinafter called defendants in error, were claiming under the Kelley and Todd deed to the 66 acre tract. So far as the record discloses, they had no interest in the 71½ acre tract. At the conclusion of the testimony the trial court rendered judgment awarding to plaintiff in error the 66 acre tract, but decreeing that it take nothing as to the 71½ acre tract as against the defendants in error, that is, those who filed pleas of not guilty.

The effect of the take nothing judgment was to vest title in said defendants to the 71½ acre tract. Art. 7391, R. C.S. No evidence whatever was offered showing any character of title to the 71½ acre tract in the defendants in error. It thus would appear that plaintiff in error recovered from defendants in error the land claimed by them, but defendants in error recovered from plaintiff in error the land as to which there is no evidence that they had any claim. This strange situation resulted from the conclusion of the trial court, with which the Court of Civil Appeals concurred, that plaintiff in error proved common source as to the 66 acre tract, and, also proved title thereto superior to that of defendants in error, but that it did not prove common source as to the 71½ acre tract; and, since it did not undertake to establish title from the sovereignty of the soil, it failed to make out a case. It is evident that, had one of the defendants in error been claiming under a deed to the 71½ acres and the other defendant in error been claiming under a deed to the 66 acres, then the result in the trial court would have been that plaintiff in error would have lost all of its land to defendants in error. The one claiming under deed to the 66 acres would have recovered the 71½ acres and the one claiming under deed to the 71½ acres would have recovered the 66 acres, all because each filed a plea of not guilty.

The judgments below were based upon the construction of what is known as the common source statute. That statute is article 7382, R.C.S.1925, and is as follows : “It shall not be necessary for the plaintiff to deraign title beyond a common source. Proof of a common source may. be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source. Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before the trial, and the adverse party served with notice of such filing as in other cases. Such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. The plaintiff may make any legal objection to such certified copies, or the originals thereof, when introduced by the defendant.”

The Court of Civil Appeals, one of the Justices dissenting, affirmed the judgment of the trial court. We do not agree with the trial court or with the majority opinion of the Court of Civil Appeals upon the construction of the statute.

In Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62, 63, the doctrine of common source is stated in this language: “* * * The theory of the doctrine of the common source is that proof of a claim of title by one under another is prima facie evidence, as against tile claimant, that the title was at one time in that other; so that when the plaintiff shows that he has a valid chain of title from a certain grantor, and that the defendant claims under the same grantor, without proving what the defendant’s title is, he shows prima facie that he is owner of 'the land, and it then devolves upon the defendant to show the authority of his own title.”

In Howard v. Masterson, 77 Tex. 41, 13 S.W. 635, 636, it is stated: “ * * * When the plaintiff in an action of trespass to try title has proved that both he and the defendant claim from the same grantor, and that he has the superior title as emanating from that source, he has made out a prima facie case. No other facts appearing, it is to be presumed that the defendant claims no other title. * * * ”

In Word v. Houston Oil Company, Tex.Civ.App., 144 S.W. 334, 337; error refused, it is stated: “ * * * Under this article of the statute, if a plaintiff in an action of trespass to try title shows that the defendant has a deed or chain of title from the person under whom the plaintiff deraigns title, he prima facie establishes a common source, and is not required to show title back of such common source; and if the proof stops here the plaintiff is entitled to • recover, if his title under the common source is superior to that shown in the defendant. But proof by plaintiff that de- • fendant has a deed or chain of title from the person under whom plaintiff claims only establishes prima facie that defendant is claiming under a common source, and the defendant is not precluded from showing: that he holds a superior title to that held by the prima facie common source, or that there is an outstanding superior title. • * * a

Many other decisions of like import are collated in 41 Tex.Jur. p. 510, sec, 42, note 16. When plaintiff in error introduced deeds showing that defendants in error claimed a portion of the tract of land described in its petition under a deed from Hairston it thereby made- a prima facie case of common source. It will not be presumed that defendants in error were making claim to any other portion of that land. Under the holding in the court below, when a plaintiff sues more than one defendant in trespass to try title to a single tract of land, in order to make available the provisions of the common source statute above quoted, it devolves upon him to show that each defendant claims all of the land involved in the suit. Such a construction would nullify the statute in such cases. The statute is one of convenience and should not be given that construction unless same is required by its language. To our minds, such construction is not at all required.

As we understand the opinion of the majority below, it gives recognition to the rule of common source but holds that it cannot be availed of here because the 66 acre tract and the 71½ acre tract were two separate and distinct tracts of land. It appears to have been the conclusion of the majority that the 137½ acre tract involved in this suit cannot be regarded as one single tract. The grounds for that conclusion, as we understand them, are these: Plaintiff in error introduced in evidence a deed from W. L. McLendon (not the McLendon named above) conveying to Halirston the 137½ acres of land. That deed described the land by two sets of field notes, the one describing a tract of 57½ acres and the other a tract of 80 acres. It seems clear that the two tracts constituted but one body of land. But, be that as it may, in the deed of trust executed by Hairston and wife it was described as one tract by one set of field notes. By the same field notes it was conveyed to plaintiff in error and was described b)' it in its petition herein. After Hairston and wife executed the deed of trust under which plaintiff in error derived title they executed two deeds to separate portions of the land, as above shown, uii-dér which the defendants claimed. One of those deeds was to a tract of 66 acres and the other to a tract of 71½ acres. Those deeds could not be made to operate as against plaintiff in error, as a segregation of the 137½ acre tract of land into two separate tracts. So far as its rights are concerned, the tract is still a unit.

The judgments of the Court of Civil Appeals and the district court will both be reversed and judgment will be here rendered in favor of plaintiff in error for all of the land described in its petition.

Opinion adopted by the Supreme Court.


author: SMEDLEY, Commissioner.

text:
    SUGARLAND INDUSTRIES v. DAILY.
    No. 1835—7540.
    Commission of Appeals of Texas, Section B.
    Oct. 30, 1940.
    P. R. Rowe, Jr., Paul Port, Gaius G. Gannon, and Baker, Botts, Andrews & Wharton, all of Houston, for plaintiff in error.
    Thomas B. Weatherly, of Houston, L. W. Pollard, of Rosenberg, and C. M. Hightower and Vinson, Elkins, Weems & Francis, all of Houston, for defendant in error.
    Clinton G. Brown, Harper Macfarlane, and Brooks, Napier, Brown <& Matthews, all of San Antonio, Thornton Hardie, of El Paso, and Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, amici curiae.
   SMEDLEY, Commissioner.

The Court of Civil Appeals reversed the judgment of the district court in favor of plaintiff in error and remanded the cause on account of statements made by plaintiff in error’s counsel in his argument to the jury. 124 S.W.2d 199.

Defendant in error, Daily, sued plaintiff in error, Sugarland Industries, for damages by reason of personal injuries suffered by his wife in a collision on a public highway between an automobile driven by Mrs. Daily and a truck owned by plaintiff in error and operated by its agent. Liability was alleged under the doctrine of discovered peril, as well as on account of specific acts of primary negligence. Plaintiff in error pleaded contributory negligence. The jury acquitted the truck driver on all issues of primary negligence and found that Mrs. Daily operated her automobile at a rate of speed in excess of 45 miles an hour and that such rate of speed was a proximate cause of the collision. A negative answer was given to the issue presenting discovered peril as a ground for recovery.

The bill of exceptions, which sets out the argument of counsel, the objections and the court’s rulings, quotes the issue of discovered peril as submitted in the charge and is as follows :

“Be it remembered that upon the trial of the above entitled and numbered cause, and'while Mr. Gaius Gannon, counsel for the defendants, was arguing the case to the jury, the following argument and proceedings occurred:

“Mr. Gannon: ‘Now, here is an issue that I want to spend a little time on. It looks like I am about to keep you longer than I thought I would, but I want to discuss this with you. This is a, very important issue, a tricky issue. It is one, if you don’t look at every word of it, you are liable to get fooled about what you are being asked; and I would hate for you to make a mistake in answering this issue. “Do you find from a preponderance of the evidence that the driver of the-truck and trailer discovered and realized Mrs. Daily’s position of peril in time, by the exercise of ordinary care in the use of the means at hand, consistent with the safety of his motor vehicle and its occupants, to have avoided the collision, and that after so discovering and realizing such position of peril he failed to exercise ordinary care to avoid the collision.” To my way of seeing it, if you will analyze that question, it is mighty near asking you “did he deliberately and consciously cause the accident.” ’

“Mr. Hightower: ‘If the Court please, I object to that. He is arguing in the teeth of the Court’s charge. His statement is not supported by the Court’s charge, and in fact it is contrary to the Court’s charge.’

“The Court: ‘I overrule the objection. Go ahead:’

“Mr. Hightower: T except.’

“Mr. Gannon: ‘Well, if it is not absolutely tantamount to deliberate and intentional injury it is the next thing to it.’

“Mr. Hightower: ‘We want an objection to that argument; and ask that the jury be instructed not to consider it. It is in the teeth of the issue and contrary to the issue the Court has 'submitted.’

“The Court: T overrule the objection.’

“Mr. Hightower: ‘We except.’

■ “Mr. Gannon: ‘To my way of thinking, let me repeat, that is approaching deliberate and intentional misconduct. In other words, the court does not ask you did he drive fast and did that cause it; or did he fail to keep a lookout and did that cause it; or did he fail to have his car under control and did that cause it; but, did he, after he discovered that the plaintiff was in a position of peril, and after he had not only discovered it, but' realizing that the plaintiff was in a perilous position, — after that time, — do you see? Did he then fail to do something to avoid this collision.’

“Be it further remembered that said remarks and argument were not withdrawn from the jury, but were permitted to be considered by the jury.”

.Defendant in error states in his brief that, in view of the trial court’s action in overruling his objections to counsel’s argument, “the question becomes whether or not .such argument was a correct statement of the law.” He cites and relies upon cases, one of which is J. S. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978, holding that argument is improper and ground for reversal when it is an incorrect statement of the law as set forth in the charge. Stated more particularly, the objection urged to the argument is that by it counsel told, or in effect told, the jury that a higher burden rested upon defendant in error, plaintiff in the trial court, than was placed upon him in law, in this, that according to counsel’s statement the burden was on defendant in error to prove that the truck driver, after realizing Mrs. Daily’s peril, deliberately or consciously caused the collision, whereas, the burden placed upon defendant in error in law and by the issue submitted was to prove that the truck driver, after realizing Mrs. Daily’s peril, failed to exercise ordinary care to avoid the collision.

Careful consideration of the argument made leads us to the conclusion that it is not susceptible of such construction. It'is not a statement of the law. The special issue submits only questions of fact. It is not accompanied by instruction as to its meaning or by any definition of the terms used in it other than the definition of “ordinary care” near the beginning of the charge. The jury is asked to find as facts whether (a) the driver of the truck discovered Mrs. Daily’s position of peril, (b) realized her peril, and (c) failed, after so discovering and realizing her peril, to exercise ordinary care to avoid the collision. Counsel’s argument is not contradictory of any statement in the court’s charge of the law of the case or of any definition of a term contained in the charge. The argument does not single out any one part of the special issue or any one of the several questions of fact submitted in it, but it is directed to the whole of the issue and expresses the opinion or belief of counsel that the whole question comes “mighty near to” or “the next thing to” or “approaches” asking the jury whether the driver of the truck deliberately or consciously or intentionally caused the collision. We believe the argument is nothing more than the expression of counsel’s belief that the conduct of one who, after discovering and realizing the peril of another in imminent danger of being injured, fails to use ordinary care to avoid injuring such other person is in fact very nearly the equivalent of deliberate and intentional misconduct.

And so it seems in fact to be. It has been so characterized. Associate Justice Greenwood, writing the opinion in Wilson v. Southern Traction Co., 111 Tex. 361, 367, 234 S.W. 663, 665, said: “For, we do not see how conduct can be characterized otherwise than as exhibiting reckless indifference to destroying human life or causing human suffering, where it consists in failure to use ordinary care to avoid the infliction of death or serious bodily injury on another in a position of imminent peril, after it is realized that the imperiled person cannot or will not save himself.”

This is the expression of the court’s opinion that such conduct, the failure to use ordinary care after the discovery and realization of the other’s peril, is in fact conduct of the same quality or character as that of one who is recklessly indifferent to destroying human life or causing human suffering. He said further in the same connection: “And the civil consequences of such conduct should be the same as for a willful or wanton' act”, meaning, as' clearly expressed in the opinion/that, as in the case of wilful or wanton act, liability is imposed upon the defendant even though the plaintiff may have been guilty of contributory negligence.

This is the rule of law announced in the Wilson case and in other decisions. It is that civil consequences of the conduct of one who fails to use ordinary care to prevent injury of another in a discovered peril action are the same as the civil consequences of a wilful or wanton act, because the conduct of the actor in a discovered peril action is in fact so very nearly the same as that of a wilful wrongdoer. Counsel’s argument is in substance merely his expression of the same inference of fact, drawn from conduct represented by an assumed affirmative answer to the several questions of fact set out in the special issue, that the court indulges in the paragraph first above quoted from the Wilson case.

If counsel’s argument can be taken as a statement of a rule or principle of law, it is not an incorrect statement. The conduct of a defendant liable in a discovered peril action is, as has been shown, very nearly the same as that of a wilful wrongdoer. Chief Justice Phillips, discussing the doctrine of discovered peril in W. A. Morgan & Bros. v. M. K. & T. Ry. Co. of Texas, 108 Tex. 331, 334, 193 S.W. 134, said that the conduct of such defendant “has either all the character of an intentional wrong, or else is one of such recklessness as to amount to the same thing.” We do not mean to sanction the argument of questions of law to juries. The objection made to the argument was that it was in the teeth of and contrary to the issue submitted in the court’s charge.

The argument would have been contrary to the court’s charge if it had in fact or in effect been that the words “failed to exercise ordinary care to avoid the collision” contained in the issue as submitted meant wilfully or intentionally causing the collision, or that the jury could not find, by its affirmative answer to the issue, that the truck driver failed to use ordinary care unless it believed and found that after discovering plaintiff’s peril, he wilfully and negligently injured him. That was not the argument. It did not relate alone to the words “failed to use ordinary care” and did not state or suggest that wilful or intentional conduct should be substituted for those words in the jury’s consideration of, and answer to, the issue. It did not suggest that the plaintiff had the burden of proving wilfulness or wantonness on the part of the defendant after he discovered plaintiff’s peril. The argument, as has been said, was directed to the whole of the issue. This very clearly appears from the fact that before making the statements to which objection was made counsel read the whole of the issue and from the last part of counsel’s statements, in which he stressed the fact that the conduct to which he was referring was the failure of the defendant’s driver to do something to avoid the collision after he had not only discovered, but realized, that the plaintiff was in a perilous position. The argument was, in short, that the conduct of a defendant who discovers and realizes the plaintiff’s peril and then fails to use ordinary care to avoid injuring him is very nearly the same thing as intentional misconduct. In our opinion this argument is not ground for reversal.

Other assignments of error in defendant in error’s brief in the Court of Civil Appeals relate to the admission of testimony tending to prove that Mrs. Daily was driving at an excessive rate of speed before the collision. This evidence was relevant only to the issue of contributory negligence, which became immaterial when the jury answered favorably to plaintiff in error all issues as to primary negligence of the truck driver. It does not appear that the evidence, if improperly admitted, could have influenced the jury’s answer to the issue of discovered peril. Green v. South Texas Coaches, Tex.Civ.App., 116 S.W.2d 799; Taylor v. Davis, Tex.Civ.App., 234 S.W. 104.

The judgment of the Court of Civil Appeals is reversed and the judgment of the district court is affirmed.

Opinion adopted by the Supreme Court.


author: TAYLOR, Commissioner.

text:
    PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA v. METZGER.
    No. 1837—7546.
    Commission of Appeals of Texas, Section B.
    Oct. 30, 1940.
    Andrews, Kelley, Kurth & Campbell, W. M. Streetman, and John E. Cook, all of Houston, for plaintiff in error.
    Ernest A. Knipp, of Houston, for defendant in error.
   TAYLOR, Commissioner.

The manner in which this case arose, together with a portion of its background, is stated in the opinion of the Court of Civil Appeals (124 S.W.2d 417), which see. That statement will not be repeated here and will not be added to except as may be deemed helpful in discussing the questions involved.

The pleadings of Susan Metzger, defendant in error here, and the issues submitted to the jury, disclose that the suit is predicated, in final analysis, upon an alleged promise, or inducement, by Pacific Mutual Life Insurance Company (acting through its agent, Edgar Harold) to pay to her a sum of money to bring a garnishment suit in connection with her claim against Marc Petiot.

The trial court, upon the jury’s’ finding that the company promised to pay her and induced her to believe it would pay her, the amount of the debt which Petiot owed her, rendered judgment in her favor against the company for $1,694 and interest. The Coui-t of Civil Appeals affirmed the judgment. 124 S.W.2d 417.

Writ of error was granted upon the company’s application on the ground, substantially, that the record is barren of evidence of such promise or inducement, other than Harold’s statement that if she, or her brother, B. V. Metzger, or her sister Margaret, would file garnishment proceedings against the company they “would get their money”; and that such statement is not legally sufficient to support the contract pleaded.

The Court of Civil Appeals [124 S.W.2d 419], states in its opinion that if “Harold’s statement * * * to the effect that ‘If you file a writ of garnishment you will get your money,’ constituted the whole transaction between the parties,” no contract between Susan Metzger and the company resulted; but that “viewing the circumstances and conversations as a whole we think a contract did result.” - (Italics ours).

We are in accord with the view that Harold’s statement is not legally sufficient to base a contract upon, but we are not in accord with the holding that the conversations and circumstances, which will be later discussed, viewed as a whole, are legally sufficient to show a contract between- the company.and Susan Metzger. We find no circumstances which, considered by the light of the conversations between the parties, tend to convert the language of the company’s agent into a promise on the company’s part to pay to Susan Metzger a stipulated sum upon consideration that she file a garnishment proceeding against it.

The following are the conversations, substantially, not only between Harold and Susan Metzger, but also between Harold and her brother, B. V. Metzger, and between Harold and her sister Margaret.

Margaret Metzger (who is not a party to this suit, and who did not file a garnishment proceeding), in testifying concerning an assignment from Petiot to her of an interest in an 'oil well, said that Harold, after looking at the assignment, turned to Susan and said, “Why, you are not mentioned in this (the assignment contract) at all. Why don’t you garnishee this?” She stated that he told her (Margaret) to hold on to that contract, “because we (the company) have got to make a settlement with Petiot sometime and as long as this old policy (insurance policy) is held by him, he can lie down anywhere and get a doctor to say that he is sick and we will have a lawsuit over it. You can never tell what.”

The foregoing conversation occurred, according to Margaret Metzger’s testimony, early in 1924, which was prior to the filing of the garnishment suit by her sister Susan in July of the same year.

Margaret Metzger testified also that in a prior conversation, when she first saw Harold, he said to her, “Now, Miss Metz-ger, if you (Margaret) will tell me what you know, you will get more than if you don’t.”

B. V. Metzger, brother of Susan and Margaret, filed a garnishment proceeding against the company and subsequently joined his sister Susan in this action, which is a direct action against the company. A general demurrer was sustained by the trial court to the joint action, but B; V. Metz-ger did not appeal. Tex.Civ.App., 30 S.W.2d 428. He testified concerning the above conversation with Harold to substantially the same effect as his sister Margaret. The portion of his testimony relied upon by Susan Metzger in the present suit reads: He (Harold) said: “Why don’t you (Susan) go and why don’t you garnishee Petiot’s insurance?’ She says T didn’t know I could.’ Why, certainly, you can,’ he says, ‘you go right down to Judge Atkinson,’ he knowing he was our attorney at that time, ‘you go right down to Judge Atkinson and have him garnishee his (Petiot’s) insurance, and you will get your money.’ Well, then, I spoke up about that time, and I said, ‘How about me?’ ‘Well,’ he says, What does he owe you?’ and ‘Well,’ I said, ‘about $2,700.’ ‘Well,’ he says, ‘you do the same, you go with your sister, and you both go down and have Judge Atkinson garnishee his insurance, and you will get your money.’ He emphasized it, he made it impressive, that we would get our money if we did that. The result was that we did (he and Susan) and then had to put up a heavy bond, and that expense, and we were on an extra strain there, but he made it impressive that we would get our money.”

Susan Metzger, the only one of the Metz-gers who is a party here, testified as follows :

“He (Harold) knew Judge Atkinson was o,ur attorney and he said ‘You go right down and see Judge Atkinson in the morning and have him garnishee your insurance, and you will get your money,’ and he claimed that he would like to see us get something and get it instead of Petiot. * * *

“So my brother, he spoke up and said, What about me?’ And he (Harold) said, ‘How much does he (Petiot) owe you?’ And he (B. V. Metzger) says, ‘He owes me about $2700.’ And he (Harold) said, ‘Well you can do the same thing.’ He said, ‘You both go down to Judge Atkinson in the morning and have him garnishee Petiot’s insurance, and you will get your money,’ so he asked me if I had this note for $1100 (note against Petiot). * * *

“That night he called up before he went away and said, ‘Miss Metzger, that is a perfectly good, bona fide note,’ and he said, ‘Did you see Judge Atkinson?’ and I said, ‘Yes, we saw him this morning, and he is going ahead and garnishee Petiot’s insur-anee.’ He said ‘Good now,’ he says, ‘You go ahead, both of you, and do that, and you will get your money.’ ” (Italics ours). * * *

“Well, I don’t know that that is the words: they are the sum and substance of it. If we-would do this, we would get our money because they had to buy this policy back. That was the thing: They must have this policy. It was not that they expected, I don’t think, to pay $500 a month but they wanted to buy this policy. * * * Well, I don’t know it was just in those words; what he said was, if we would do this, if we would sue out these garnishments that we would receive our money, because they must settle with him, that he wanted $10,000, but that they were not going to give him that much, and he knew how much mine was, and how much my brother’s was and it amounted to a round $4,000. * * * Well, the sum and substance, they had to pay Petiot for this policy and we would get our money out of that.”

A letter written in January, 1925, by Susan Metzger to Harold subsequent to the filing of the garnishment (July, 1924) is relied upon by her as tending to show a promise. In this letter she said, among other things: “The last time you were here, you asked us to help you all we could and you would do the same for us.”

The foregoing testimony is gleaned from the record, discarding all that is adverse, and including all most favorable, to Susan Metzger’s contention. It includes not only the quotations from the record set out in the application for the writ claimed to be the statements most nearly supporting the contract theory of the case but legally insufficient, but also all statements pointed out in Susan Metzger’s brief as tending to support such theory.

A consideration of the testimony discloses that it contains no language constituting a promise. The statements of the conversations relied upon, whether considered separately or as a whole, do not tend to show an undertaking, or agreement, to pay a sum of money for the filing of a garnishment suit. Nor do they state as a fact, or tend to show a guarantee by the company that Susan Metzger will be paid a stipulated sum or any sum for filing a garnishment suit. Taken together or separately the conversations indicate at most against the company the opinion of its agent that the Metzgers, if they filed garnishment proceedings, would get iheir money by means of'an adjudication in such proceedings that the company was indebted to Petiot on the policy. It is undisputed that the company was at all times, after Petiot filed suit against it, denying liability on the policy. The conversations fall far short of creating an unconditional obligation on the part of the company to pay the Metzgers, or any of them, Petiot’s indebtedness to them.

Nor do we find any circumstances in the record tending, in conjunction with the conversations and correspondence between the parties, to show that a contract resulted. One of the circumstances viewed by the Court of Civil Appeals tending to so show is the fact that the company was desirous of settling by compromise, or defeating, Petiot’s claim against it. Reference is made in the opinion in this connection to a statement in Harold’s letter of November 25, 1925, to defendant in error. That letter, together with the letter of Susan Metzger to which it was a reply, will be set out in full. Susan’s letter to Harold bears date November 20, 1925, and is directed to his Chicago address. Pieced together from the cross-examination in which it appears, it reads:

“I am writing you personally to see if you will tell me how the Petiot case stands. I understand it was placed on the docket here for trial the last of this month, but you know what infernal liars this bunch are.

“I heard this morning she has a brand new car and was rumored the insurance company was settling with Petiot direct.

“I believe you are a friend and would like to see justice done; and all they would give me was $750.00 and give Atkinson the fourth of that. Woods told Atkinson that was their limit. I told them $1000 clear for myself was the least I would take and told Atkinson he could collect his 10% atty. fee the note called for, beside that. I guess they are trying to do me and tire me out.

“They do not recognize my brother’s claim. It would have to be a lawsuit and P. would not come hete for that, so they want - me to have only a pittance and they have everything they want on our money. She dresses like a millionaire.

“I am so sorry you are not in this district any more; but if you come to Houston at all wish you'would at least call us up. We have moved 8 blocks out Anita from where we were, and now live 3008 Caroline, only 3 blocks from Main St. out on the other side of Main from where we did live.

“Hoping you will answer this letter and tell me where this matter stands.

“Remember me to Mrs. Harold.”

Harold’s reply reads:

“I have just received your letter and am very glad to have heard from you.

“The company has made no settlement with Petiot. If we should take any action toward that end it would be through his attorney, Mr. Wood in Houston. The present indications are, however, that we will not make any settlement as our case has recently been very materially strengthened.

“Thanking you for having written me and with kind remembrance to your sister, I am,” etc.

The letters (both written after the garnishment was filed, it will be noted) contain no statement tending to show the claimed agreement, or that Susan Metzger believed the company was legally obligated to pay her anything.

The record contains all of the correspondence between the Metzger sisters and Harold. The letters, written intermittently, are not numerous, and cover a period from October 9, 1923, to January 19, 1926. They link together but contain no statement tending to show a promise to pay, or contract to do so, on the company’s part. They are barren of language importing a legal obligation.

The remaining circumstance referred to in the court’s opinion as supporting the contract theory, is that relating to the failure of'Harold’s counsel to produce in court the correspondence (if any) between him and the company “at the time of the transactions.”

The occurrence referred to is reflected in the following excerpt in which it set out the cross-examination of Harold in connection with his denial that any agreement was made with the Metzgers :

“Q. Well, are you testifying from your recollection of what occurred, or from the review of the notes that you made? A. From my recollection, and I have had occasion from time to time to refresh my recollection by reference to the files and to accounts that I had made to the company of my trip.

“Q. Do you have a copy of that policy here? A. No, I have not.

“Q. What records in connection with the issuance of the policy have you got? A. We have the original application; I don’t know whether we have -that here, or whether that is at the home office. An insurance company, at least the Pacific Mutual Life Insurance Company of California, did not and does not retain copies of the policies it issues; it retains the application and a record that identifies that policy and the form,* and any riders or supplements, or all of those things.

“Q. What I meant by a copy was the form. They use printed forms, I presume? A. Yes.

“Q. You didn’t bring that? A. No, I haven’t one with me.

“Q. Did Mr. Streetman inform you that I had requested that you bring that, or any other records that you had? A. No, I think that all of- — ■

“Q. Just didn’t tell you anything about this demand being made in the pleading at all? A. When was this pleading filed?

“Q. I don’t know. Two or three weeks ago. This last one was filed June 17, two weeks ago. A. Well, I left Los Angeles on June 18, and haven’t been back there since.

“Q. * * * I presume he asked you to come here? A. Yes.”

No inference can be deduced from the occurrence reflected in the foregoing excerpt that would strengthen defendant in error’s contention that Harold promised payment for the filing of a garnishment proceeding. Furthermore, the Metzgers do not contend that the “transactions” between them and Harold are not fully set forth in their correspondence and conversations with him.

It is apparent from what has been stated that we hold the Court of Civil Appeals erred in holding that there is any evidence to support a finding that the company, acting through Harold, promised Susan Metz-ger that if she would bring the garnishment suit against the company, it would pay her the amount of the debt Petiot owed her.

The Court of Civil Appeals also held that regardless of whether an' enforceable contract in favor of Susan Metz-ger resulted from the conversations and transactions between Edgar Harold and the Metzgers; the company was “nevertheless liable on the principle of estoppel.”

Defendant in error in the concluding paragraph of her amended petition upon which the case was tried pleads in the alternative that “if, for any reason, it should be found or determined by the court that the facts hereinbefore alleged are insufficient to constitute a valid and binding express contract * * *, then the facts as hereinbefore set out-are such as to completely estop” the company from denying that it was indebted to Petiot, and “that a contract in law arises by estoppel,” so that the company is bound and obligated to her for the amount of her judgment against Petiot in the sum of $1,694. (Italics ours).

It is apparent from the issues submitted to the jury that the case was not tried upon 'the theory of estoppel on the part of the company to deny its-indebtedness to Petiot, or upon any other estoppel theory. See issues set out in the opinion of the Court of Civil Appeals, 124 S.W.2d page 418. The only issue submitted, other than the issues just discussed, and those inquiring concerning Plarold’s authority, is the issue inquiring whether Harold induced Susan Metzger to believe the company would pay her the amount of her claim against Petiot if she would bring the garnishment suit which she did bring.

Obviously the affirmative answer to this issue can form no basis for the trial court's judgment. Furthermore, the only facts offered in evidence are those not legally sufficient to constitute a promise by the company to pay a stipulated sum for the filing of a garnishment suit. These same facts cannot by escoppel create in. behalf of defendant in error a right to assert that she is entitled to payment by the company of Petiot’s debt to her merely because of a belief she deduced therefrom that the company had so'promised. The facts do not legally justify such belief, as we have just shown.

We hold it appears from the record that the transactions between defendant in error and the company through its agent Harold, as above set forth, do not give rise to the claimed legal obligation to her on the part of -the company, either by contract or by estoppel. See in this connection Massachusetts Bonding & Insurance Company v. Dallas Steam Laundry & Dye Works, Tex.Civ.App., 85 S.W.2d 937, writ refused.

The judgment of the Court of Civil Appeals affirming that of the trial court is reversed, and judgment is here rendered that defendant in error take nothing.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge.

text:
    JOHNSON v. STATE.
    No. 21173.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Percy Foreman, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

No statement of facts is brought forward. We are unable to appraise appellant’s bills of exception in the absence of a statement of facts.

The judgment is affirmed.

PER CURIAM.

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


author: KRUEGER, Judge.

text:
    BROOKS v. STATE.
    No. 21225.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The record is before this court without statement of facts or bills of exception. Nothing has been presented which would authorize a reversal of the conviction. The judgment of the trial court is therefore affirmed.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    BAILEY v. STATE.
    No. 21195.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    A. A. Kern, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was assessed a penalty of ten years in the penitentiary upon a trial before a jury in Dallas County on indictment charging him with the offense of robbery.

The record contains no hills of exception and no statement of facts. All proceedings ' appear to be regular. There is, therefore, nothing for this court to consider.

The judgment of the trial court is affirmed.


author: GRAVES, Judge.

text:
    COLLINS v. STATE.
    No. 21291.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    M. E. Gates, of Huntsville, for appellant.

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

Appellant was convicted of robbery by assault, and his punishment assessed at six years’ confinement in the State penitentiary.

The indictment properly charges the offense. The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for reviewr

The judgment is affirmed.


text:
    BAILEY v. STATE.
    No. 21194.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    A. A. Kern, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for burglary. The punishment assessed is confinement in the state penitentiary for a period of five years.

The record is before this court without statement of facts or bills of exception. The indictment and all matters of procedure appear regular.

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:
    FITZGERALD v. STATE.
    No. 21218.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    S. H. Townsend, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted for the offense of driving an automobile upon a public highway while intoxicated, and his punishment was assessed at confinement in the county jail for five days and a fine of fifty dollars.

The record is before this court without statement of facts or bills of exception. All proceedings herein seem to be regular, and we have no other alternative than to affirm the judgment, which is accordingly done.


author: HAWKINS, Presiding Judge.

text:
    HARRELL v. STATE.
    No. 21188.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

It was charged by indictment that appellant while intoxicated drove a motor vehicle upon the public highway. He was convicted and his punishment assessed at 90 days in jail and a fine of $50.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    NAVAIRA v. STATE.
    No. 21302.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Walter Hein, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, a fine of fifty dollars.

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

The judgment is affirmed.

PER CURIAM.

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


text:
    CUDE v. STATE.
    No. 21303.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    B. F. Patterson, of San Antonio, for appellant.

      Lloyd W. Davidson, State’s .Atty., of Austin, for the' State.
   HAWKINS, Presiding Judge.

Appellant was convicted of misdemean- or theft, punishment assessed being a fin' of ten dollars and confinement in the coun ty jail for ten days.

No statement of facts or bills of excep tion are brought forward. Nothing is pre sented for review.

The judgment is affirmed;


text:
    ROUNTREE v. STATE.
    No. 21118.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Polk Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft, punishment being two years in the penitentiary.

The State’s evidence makes out the following case: Jones and Anderson owned a dairy. Newt Rountree, a brother of appellant, was manager of the dairy. Newt’s son, Eugene Rountree, was a boy about 15 years old, a nephew of appellant.

The testimony of Eugene Rountree is substantially as follows: He met his uncle (appellant) in Austin, who made inquiry of Eugene as to whether he had any calves to sell. Upon being told that Eugene had none to sell appellant asked Eugene if he would tie up one of the Jones and Anderson, calves near a road that ran back of the pasture; that if he would do this -appellant would pay him $7 for it. Eugene agreed to this and did put a rope on one of the calves and led it to the place designated, and tied it up at a place convenient for appellant to reach with his truck. The next day appellant came by the . dairy and paid Eugene the $7. Eugene had no further interest in the calf one way or the other.

A witness testified that he was with appellant in his truck and went with him to a point where they found the calf tied to a post at the back side of the pasture near the road. He helped appellant load the calf .in the truck. Appellant told witness he had bought the calf or traded for it from a negro. The next day after” the calf was taken possession of by appellant he traded it to Mr. Murchison for another calf, telling Murchison that he had gotten it from a negro. At the time the officers were making an investigation of the matter appellant told the officers that he had bought the calf from Eugene Rountree.

Appellant offered no testimony. It is his contention that the facts put in evidence by the State show without question that he is not guilty as a principal of the offense of theft. His contention is based upon the proposition that the offense of theft of the animal was complete when Eugene Rountree reduced it to his possession in the absence of appellant. . It appears to us that when Eugene Rountree tied the animal at a place agreed upon between him and appellant for the convenience of appellant to load it into his truck, that same was a constructive delivery of the animal to appellant at the point where it was tied. If Eugene Rountree had had any further interest in the animal or the proceeds thereof to be paid him by appellant after the disposition of the animal by the latter the case would have been brought within the principle recognized in Smith v. State, 21 Tex.App. 107, 17 S.W. 552; McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96, and the cases therein cited, and also in Miller v. State, 133 Tex.Cr.R. 53, 105 S.W.2d 1097. The facts here do not admit application of such principle. Eugene was to be paid $7 flat for stealing the animal and leaving it at the designated place, and says himself that he had no interest in what became of it thereafter. He was in fact, according to his own admission, paid the $7 by appellant before the latter traded it off.

Art. 1410, P.C., defines theft as the “fraudulent taking,” etc., of the property of another. What was meant by the use of the word “taking” is not left in doubt.’ Art. 1412, P.C., defines it as follows: “To constitute ‘taking’ it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.”

At common law a “carrying away or as-portation” was necessary in connection with a fraudulent taking to constitute theft. Not so under our statute. When the theft is of an animal it is a “taking” whenever the animal is brought under the control of the thief. Madison v. State, 16 Tex. App. 435. ' In Powers v. State, 69 Tex.Cr.R.' 214, 152 S.W. 909, 910, an animal running on its accustomed range was taken possession of and tied to a tree, and was later butchered. The court said “the theft was complete when the cow was taken possession of and tied to a tree to be butchered.” In the present case the animal was not removed from the pasture until appellant untied it and loaded it in his truck; however, it had been deprived of freedom to roam the pasture at will when Eugene placed a rope on it and led it away to be tied at a designated spot for appellant. Eugene had taken it into his possession and was exercising control and dominion over it. Had he been apprehended while on his way with the animal to the place where he intended to tie it, and was under prosecution for theft of the animal he would scarcely be able to defend on the ground that the theft was incomplete until appellant took charge of the animal and removed it from the pasture.

In Petty v. State, 128 Tex.Cr.R. 562, 82 S.W.2d 965, both the original opinion and the opinion on rehearing discuss the distinction between principals, accomplices, and receivers of stolen property where the theft is the result of a conspiracy. The facts in Petty’s case and others therein reviewed as well as those already referred to herein support appellant’s contention that his conviction as a principal in the theft of the animal in question can not be sustained.

The judgment is reversed and the cause remanded*


text:
    COLLINS v. STATE.
    No. 21246.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Walter S. Hart, of Houston, for appellant.

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

The conviction is for theft from the person.. The punishment assessed is confinement in the state penitentiary for a term of two years.

The indictment appears regular. The record is before this court without statement of facts or bills of exception.

In the motion for a new trial appellant complains of certain rulings of the court with respect to the introduction of evidence and other matters occurring upon the trial. However, in the absence of the evidence which was before the court, we are unable to appraise the matters complained of in said motion.

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:
    BERRY v. STATE.
    No. 21306.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ' -
   GRAVES, Judge.

On a plea of guilty appellant was convicted of forgery, and his punishment assessed by the jury at two years’ confinement in the penitentiary.

The indictment appears to be in proper form. The record contains neither statement of facts nor bills of exception. Nothing is presented for review.

The judgment is affirmed.


text:
    BAKER v. STATE.
    No. 21328.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    J. Fielding Jones and Roy Y. Martin, both of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

The judgment is affirmed.

PER CURIAM.

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


text:
    MONTGOMERY v. STATE.
    No. 21028.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    J. Farris Fish, of Matador, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted upon complaint and information in the county court of Hall County on a charge of violating the motor registration statute and was assessed a fine of $50. The information, which is consistent with the complaint, alleges that he sold a “second hand -and used vehicle, to-wit, a truck”, without delivering to the transferee license receipt issued therefor during the year 1939 and was not delivering to the transferee a bill of sale in triplicate as required by the statute. Defendant timely filed a motion to quash the complaint and information, which was refused.

It will be observed that the allegations are not in the language of the statute. There is no allegation that it was a vehicle required to be registered by law and to which the law regulating the transfer would apply. The complaint and information refer to a “vehicle, towit, a truck”. The name truck is applied to more, than one kind and character of vehicle. The original meaning of the word seems to have been a strong, small wheel. It is now applied generally to wheeled vehicles used in carrying heavy loads. ■ Strong frames or platforms on wheels such as used for carrying baggage in and around railroad stations are commonly referred to’ as trucks. A frame work mounted on wheels used to support one end of a locomotive is commonly referred to as a truck. A strong carriage used about a sawmill for conveying heavy timber is generally referred to as a truck. The statute does not provide that either of these should be registered, or that the law regulating the transfer of motor vehicles shall apply to them. The article of the statute under which the prosecution was had applies to only such vehicles as are required to be registered under the laws of this state. The pleading is defective in that it fails to. sufficiently describe a vehicle to which the law applies.

The motion to quash the complaint and information should have been sustained. The case is reversed and ordered dismissed.


text:
    SMITH v. STATE.
    No. 21319.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.

      B. A. Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for murder. The punishment assessed is confinement in the st.ate penitentiary for a period of four years.

The record is before this court without statement of facts or bills of exception. The indictment and all matters of procedure appear regular.

The judgment of the trial court is therefore 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:
    McGREW v. STATE.
    No. 21136.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    D. F. Sanders and J. A. Veillon, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of the offense of rape in Jefferson County, and his penalty assessed at fifteen years in the penitentiary.

Several questions are presented on appeal that may be disposed of by the simple conclusion that none of the things testified to by the appellant constituted a defense to the prosecution save and except, his denial that his private parts penetrated those of the prosecutrix.

On the other hand the testimony of the prosecuting witness is quite unsatisfactory on the subject from the State’s standpoint. Her testimony on the question of penetration was a conclusion on a mixed question of law and fact, but the facts and circumstances testified to by both parties were sufficient upon which the jury might have concluded, as they did, that there was penetration. Appellant had no affirmative defense. All of the things he said could have been true, save and except penetration, and yet he might have been guilty of everything charged against him.

Three bills of exception, timely taken, complain of the argument of the assistant county attorney in which he referred . to the appellant as a “fiend from hell”. The trial court sustained an objection when made to this argument the first time and instructed the jury not to consider it. He twice again repeated it, each time with the same objection, ruling and instruction. Under the facts of this case the argument was highly improper and there could be no doubt of its harmful effect. The trial court did all within his power to remove the damage, but it was done.

In all cases the defendant is presumed to be innocent until the jury has concluded his guilt from the facts of the case. This obtains during the argument of counsel with as much force as when he is being arraigned. ' A careful study of the facts, considered with the state’s own testimony, does not reveal a state of facts justifying the denunciation which the assistant county attorney gave. It is true that appellant was a man thirty-four years of age; that the prosecuting witness was known to be much younger. He detailed a state of facts which were extremely reprehensible. It appears that his testimony itself, even if exactly true, smacks of audacity. On the other hand, the state is not without embarrassment in its testimony. The prosecuting witness admits that she had falsified her age, claiming to be 18 — over the age of consent— in order to secure a job “hopping cars” at a beer joint. Appellant first knew her there. He believed, and had a right to believe, that she was 18 years of age. After the regrettable events testified to by both of them they were seen in a car together when he called at the home of a friend. Appellant had his arms around the prosecuting witness and she was smiling, seemingly pleased.' This is not denied. She made no outcry and told no one about it until the following day after sleeping through the night. This is concluded from the undisputed facts of the case. At the same time we must know and understand that in a case of this character there will exist a prejudice and a feeling which may be set ablaze by the slightest spark and, when once lighted, will not be controlled by ordinary means. The cautious prosecutor will, and should, be the more alert to choose his words and control his argument in this 'than in most cases. That which may be harmless in some cases would become extremely inflammatory in others. Had he been prosecuting a crap-shooter he would have made of his argument a joke. Surely in no character of prosecution could it have been more effective, more inflammatory, than that here presented. It is the results which this court must consider.

As stated by Judge Davidson in Jupe v. State, 86 Tex.Cr.R. 573, 217 S.W. 1041, 1042, such conduct “can serve no legitimate purpose, except to jeopardize the state’s case on appeal where a conviction is obtained.” This court has consistently followed that view, and it is difficult to understand why it is so repeatedly resorted to. Argument in the trial of a case is a legitimate part of the trial and should be attended with the same degree of fairness which a lawyer expects and demands from the witness in the box and the jurors in their deliberation.

Because of the improper argument, the case'is reversed and remanded for a new trial.


text:
    Ex parte DAWS.
    No. 21278.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    R. M. Gardner, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

After a hearing on a writ of habeas corpus appellant was remanded to custody. Hence this appeal.

It appears from the record that appellant was held under a capias issued after the return of an indictment charging him with the offense of burglary. Pending appellant’s appeal from the order of the district court remanding him to custody, the clerk of the district court of Potter County forwarded to this court a certified copy of an order of the district court of that county granting the district attorney’s motion to dismiss appellant’s case. The order of the court below reads in part as follows: “And the court, having heard and considered said motion is of the opinion that the reason therein assigned is good and sufficient to justify a dismissal of said cause. It is therefore ordered by the court that said motion be and the same is hereby sustained and the defendant go hence without day and said cause dismissed.”

In view of the fact that appellant has been released from custody, it becomes unnecessary to consider the questions presented by the record herein relative to the alleged illegal restraint of appellant. It follows that the appeal should be dismissed.

The appeal is dismissed.

PER CURIAM.

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


text:
    ROBERTS v. STATE.
    No. 21213.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    C. O. McMillan and W. J. Oxford, Jr., •both of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for burglary, punishment. assessed being two years in the penitentiary.

The record is before this court without statement of facts or bills of exception.

There are certain exceptions to the court’s charge, but we are unable to appraise them in the absence of a statement of facts.

Nothing being presented for review, the judgment is affirmed.


text:
    Ex parte TILL.
    No. 21268.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    L. P. DeLee, of Dallas, for appellant,
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

After a hearing upon a writ of habeas corpus appellant was remanded to custody by the . Honorable Henry King, Judge of Criminal District Court No. 2 of Dallas County. Hence this appeal.

No statement of facts is brought fqr-ward.. However, it appears from the re7 turn of the sheriff that he held appellant b.y virtue of a warrant and final judgments of conviction in two cases. There is nothing in the record to show that appellant was entitled to be released.

The judgment is affirmed.

PER CURIAM.

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


author: GRAVES, Judge. BEAUCHAMP, Judge.

text:
    WRIGHT v. STATE.
    No. 21207.
    Court of Criminal Appeals of Texas.
    June 26, 1940.
    Rehearing Granted Oct. 23, 1940.
    H. D. Stringer, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of the murder with malice of John Gonzales, and by the jury awarded a penalty of five years in the State penitentiary.

It appears from the facts that both appellant and deceased were enrollfees of a CC Camp at or near Memphis, Texas, and that they were associates in some kind of orchestral music. That they were rather intimate friends, the deceased oftentimes eating at appellant’s table, and sometimes furnishing food fo'r such table. Appellant left his home on a business trip some time in July 1939, and was gone about a week, during which time it seems that the deceased slept with appellant’s wife. This wife seems to have become enamored with the deceased, and in the following August she left appellant and went to her mother’s in Vernon in Wilbarger County, and seemed to have some idea of divorcing appellant and marrying the deceased. This unfaithfulness of the wife was communicated to the appellant, but did not seem to offend him, nor to affect the friendship existing between himself and the deceased. After his wife left him- the two friends continued their association for at least three nights in succession, drinking whisky together, and visiting the portion of town where the colored people lived. Appellant and deceased on the night of the killing were sitting down on a dump in a race track enclosure near the town of Memphis, with no sign of antagonism apparently existing to mar their friendship, when two negro women accosted them. Neither appellant nor deceased gave these women any encouragement and they soon left, appellant and his friend all in an apparent good humor. Appellant testified that he knew that the deceased owned a deer foot handle dagger, and that while the two were sitting down on this dump the following occurred :

“It was very dark and a very dark place in which to be, and as we turned down I just pulled out niy tobacco and started a cigarette, just like passing a few words now and then between us, there wasn’t anything to arouse any suspicions at all and I had rolled my cigarette and lit it and was smoking it, so he was rolling his cigarette and licked it and had it up something like that (indicating), looked like he was kind of studying, and then he turned around, he was on this side, and we was sitting kind of humped up, and I was sitting there smoking my cigarette while he still had his in his .hand, and he kind of eased around, or turned around, and says, ‘Wright, I was down' with your wife at Vernon Sunday.’ And then he says, ‘You think I have been fooling with your wife and family while you was gone to Wyoming,’ and I said, ‘John, what I have heard and what you have said is true, I believe,’ and he came around with his hands and I sprang up, and as he started to rise, all I remember, I had the hammer in my left hand, I don’t know how many times I hit, and I don’t know anything about the results, I was so worried about my wife and all. He didn’t make any movement as long as he was turned around in this position (indicating) until I answered his question. When I answered his question, he just jumped around like that (indicating all the time at this point). I expected him to get that dagger which I had seen him with.

“When I hit him I did not intend to kill him. I hit him in self protection. I thought I was about to be attacked. I .thought he-had the knife with him.”

It appears from the facts presented that the deceased was struck on the head twice with some blunt instrument such as a hammer, once on top of the head and once on the side of the head, the lick on the side of the head bearing evidence of having been struck from above the head of deceased. Deceased must have died instantly as there were no signs of a struggle, and no signs of any weapons of any kind near the deceased, and nothing found in or near his hands save an unlighted cigarette.

Appellant had filed an affidavit in lunacy prior to his trial in this cause, and the issue of his sanity was submitted to a jury in the district court of Hall County on September 16, 1939. The jury found that appellant was an insane person at the time of such trial; such jury also found, however, that appellant was not insane on the 18th day of August, 1939, the date -of the alleged offense. It seems from bill of exceptions No. 2, the one presenting this matter to this court, that thereafterwards appellant was committed to the custody of the authorities at the Wichita Falls hospital for the insane, and there remained for some time. That on or about February 16, 1940, the superintendent of such State hospital at Wichita Falls certified to the county judge and the district court in which this case was pending, that appellant had regained his sanity, and another jury trial was had relative to his present sanity, and by the verdict of the jury and judgment of the court appellant was found to be then sane, and thereafter-wards he was placed upon trial for this homicide. We think such procedure followed the statute as set forth in Sec. 3 of Art. 932a, C.C.P., Vernon’s Cr. Statutes, it being Acts 1937, 45th Leg., p. 1172, Ch. 466, which we quote: “When the defendant so committed to a hospital for the 'insane becomes sane, the superintendent of the hospital shall give written notice of that fact to the Judge of the Court from which the order of commitment issued. Upon receipt of such notice the Judge shall require the sheriff to bring the defendant from the hospital and place him in the proper custody until the hearing may be had before a jury in such Court to determine defendant’s sanity, and if he be found sane, he shall be discharged, unless he had been previously found to be sane at the time at which, he is alleged to have committed the offense charged, in which event, unless previously acquitted, he shall be tried for the offense charged.”

There is but one further bill of exceptions found in the record, No. 3, and it is concerned with the cross-examination of appellant’s wife. It appears t-hat in her direct examination this witness had testified that she had talked with the deceased relative to “getting rid” of appellant, such testimony being in part as follows: “Yes sir, I left Memphis on August 10th, which was Thursday, and went to Vernon. Before I left Gonzales told me, he said when he got rid of Oscar he would meet me in New Mexico. When I left Memphis John was down at the train to see me.” And upon her cross-examination by the State the following was developed: “When I was talking to John Gonzales, I discussed about getting a divorce from Oscar before I went to live with John Gonzales. I don’t know whether that is what he meant when he said something about getting rid of Oscar. I don’t know whether that is what John had in mind, me getting a divorce from Oscar and then going to live with John. Yes, John told me that I would, get a divorce from Oscar. We talked about that. I knew if he was going to be killed I couldn’t get a divorce from a dead man. No, sir, that is not the only manner of getting rid of Oscar; that was mentioned to me by John, getting rid of him by divorce. I don’t know what other means of getting rid of him was mentioned. If they were mentioned, I don’t know what they were nor when they were mentioned, or who mentioned them. The only way mentioned to me about getting rid of Oscar was by divorce.”

We are convinced that such a cross-examination was properly heard on matters brought out by the appellant on his direct examination of the wife.

There are some objections to the trial court’s charge in that it is contended that same did not submit to the jury that it was necessary that appellant have a specific intent to kill before a conviction could be had herein for murder. We think this objection was fully met by the court in its charge, paragraphs ten and eleven thereof, wherein it was said that unless the jury believed beyond a reasonable doubt that appellant at the time he struck the deceased had the specific intent to kill deceased, he should be acquitted of murder.

Again appellant complains because the court failed to charge on the law of uncommunicated threats. We are unable to find any facts in the record that would call for such a charge nor does the law require such. There is also a complaint that the court failed to charge on apparent danger. This complaint is unfounded. Paragraph twelve of the charge gives a comprehensive charge on such theory.

We find no error in the record, and the judgment is affirmed.

On Motion for Rehearing

BEAUCHAMP, Judge.

On motion for rehearing, further consideration has been given to the bill of exception taken to section twelve of the court’s charge on the right of self defense under apparent danger. The part of said section of the charg'e complained of is that applying the law to the facts of this particular case in the following language: “Now, if you believe that the defendant struck and beat John Gonzales with a hammer, if he did, as. you may find from the evidence before you, as a means of self defense, believing at' the time that he did so, if he did, that he was in danger of losing his life or of suffering serious bodily injury at the hands of John Gonzales or if you havé a reasonable doubt thereof, then you will find the defendant not guilty.”

We believe the foregoing is too limited. Mr. Branch says, Section 1921: “If there is evidence that defendant was defending against apparent danger, it is error to restrict the right not to retreat to actual danger.”

In Cooper v. State, 49 Tex.Cr.R. 28, 89 S.W. 1068, at page 1071, Judge Davidson says: “The charge in regard to self-defense is criticised because it confines the jury to the consideration of an actual assault and one of real danger, instead of a threatened assault and apparent danger. Upon another trial, the court should bear this in mind, and charge the jury in accordance with the testimony relied upon to prove that theory of the case.”

In the case at bar the charge may not be so severely criticised in so far as it defines the law of self defense, but when it applies the law to the facts of this case in the language above quoted instead of saying to the jury that if they believed the defendant struck and beat Gonzales with a hammer, “as a means of self defense”, the court should have embraced within such charge the elements of self defense under apparent danger. It is too uncertain that the jury would resort to the whole section of the charge to determine the full latitude given to the defendant by law under the facts of his case. Self defense, as that is used, is too restrictive.

Having a doubt that the jury properly understood this charge, it is our duty to require that it be presented in unmistakable language so as to make clear the meaning of the charge. Such part of Section 10 of appellant’s exception to the court’s charge as deals with this point is well taken.

The motion for rehearing is granted, the judgment of affirmance set aside and the case reversed and remanded.


text:
    WATSON v. STATE.
    No. 21249.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for felony theft, punishment being assessed at seven years in the penitentiary.

The record before this court contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    SHERRILL v. STATE.
    No. 21174.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of' Austin, for the State.
   BEAUCHAMP, Judge.

This appeal is before the court without a statement of facts or bills of exception. We have examined the record and find that the indictment, presentment and trial of' the case appear regular. There is no issue that may be considered.

The judgment is affirmed.


text:
    OLIVER v. STATE.
    No. 21295.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.

      Chas. L. Nunn, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

It appearing that the appellant was regularly indicted, and that upon a proper trial of this cause he was assessed a fine of $125 by a jury, and that the cause was brought to this court without any statement of facts or bills of exception, we find nothing for this court to consider.

The judgment of the trial court is affirmed.


text:
    RICH v. STATE.
    No. 21242.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1940.
    J. W. McCullough, of McKinney, for appellant.
    Lloyd W. Davidson, State’s A tty., of Austin, for the State.
   GRAVES, Judge.

Upon appellant’s plea of guilty of the •offense of theft, and the waiver of a trial by jury, the court assessed his penalty at a fine of $25 and confinement in the county jail for five days.

The record is before us without statement of facts or bills of exception, hence no matter of procedure is presented for review.

The judgment is affirmed.