author: MONTEITH, Chief Justice.

text:
    PERKINS v. MAGNOLIA PETROLEUM CO.
    No. 11104.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 23, 1941.
    Rehearing Denied March 6, 1941.

      Royston & Rayzor, of Houston, for appellant. •
    Walace Hawkins and Earl A. Brown, both of Dallas, and Tarlton Morrow and Vinson, Elkins, Weems & Francis, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by Murray A. Cannon and Elmer M. Cannon and their wives, and appellant, F. R. Perkins, against appellee, Magnolia Petroleum Company, to set aside an oil, gas and mineral lease on 500 acres of land out of a tract of 1,109.47 acres in the S. F. Austin League Survey in Brazoria County, Texas.

Appellants sought a cancellation of said lease for the alleged reason that appellee had failed to drill an oil well on said land and had failed to pay delay rentals according to the terms of said lease. They alleged that the failure of appellee to grant a release constituted a cloud upon their title to said property and prayed for a cancellation thereof.

Appellee answered by general and special demurrers and general denial. It is alleged that Murray A. Cannon owned only a ¾2 undivided interest in the 500 acres covered by said lease and that Mrs. Abbie Howard was the owner of a ⅝2 undivided interest therein. By cross-action and in-terpleader appellee prayed that Abbie Howard and her husband, Alvin Howard, and First National Bank of Angleton be br'ought into the suit and that the title of the Howards to the land involved and their right, if any, to a fund deposited by appel-lee as delay rentals under the terms of said lease be adjudicated. Thereafter Mrs. Ab-bie Howard and her husband filed their answer and intervention and a cross-action claiming a ¾2 interest in said land. They set up a lease executed by them to appel-lee’s vendor and alleged their right to a proportional part of the delay rentals deposited by appellee with the First National Bank of Angleton.

In answer to said bill of interpleader, First National Bank of Angleton pled that said sum of $500 had been deposited with it in the name of the Howards and Cannons jointly and that the bank was merely a stake holder thereof.

Plaintiffs answered said pleas of intervention and cross-action by a plea of not guilty. They specially pled the three, five and ten years’ statutes of limitations.

Prior to the rendition of judgment in said cause, Murray A. Cannon and Elmer M. Cannon and their wives and Mrs. Abbie Howard and her husband entered into ah agreement and compromise of their controversy. They agreed that all issues between them should be withdrawn from the jury and determined by the court in furtherance of said agreement and that none of said parties would appeal therefrom. Thereafter the trial of the cause proceeded between appellant, F. R. Perkins, and ap-pellee, Magnolia Petroleum Company.

At the conclusion of all the evidence, upon motion of appellee, the court instructed the jury to return a verdict in favor of ap-pellee. On the verdict so returned he rendered judgment that appellant take nothing by his suit.

In accordance with the stipulation between the Cannons and the Howards, which was filed among the papers in said cause, it was decreed by the court that an undivided ⅞2 interest in the land covered by said leases belonged to Murray A. Camion and Elmer M. Cannon, as of the date of said leases, and that an undivided %z interest belonged to Abbie Howard as her separate property at said date, so far as their rights are concerned. It was further decreed, under said stipulation, that all rental moneys then on deposit in the First National Bank of Angleton, or in the registry of the court, be divided ¾2 to Ab-bie Howard and Vv¿ to the Cannons.

F. R. Perkins, the sole appellant herein, assigns error in the action of the court in directing a verdict against him.

The record shows that Murray A. Cannon, by inheritance and purchase, acquired a ¾2 undivided interest in the 1,109.47-acres of land in question, and that Mrs. Abbie Howard, the sister of Murray A. Cannon, acquired a ¾2 undivided interest therein by inheritance. Elmer M. Cannon, the son of Murray A. Cannon, claimed title to the interest of Mrs. Abbie Howard by sheriff's deeds under two tax suits dated, respectively, September 1, 1931, and October 6, 1931. By lease dated July 10, 1936, Murray A. Cannon and Elmer M. Cannon and their wives executed an oil, gas and mineral lease covering said 1,109.47 acres of land to W. C. Corbett, Jr. The lease provided for its extension after the first year by the payment of delay rentals to lessors at the First National Bank of An-gleton on its anniversary date in the sum of $1,109.47. By assignment from W. C. Corbett, Jr., appellee acquired S00 acres out of the east end of said tract of 1,109.-47 acres. Upon an examination of the title to said land, appellee learned that a law suit was then pending wherein the Howards sought to recover a ¾2 interest in the property from the Cannons. A lease was later obtained from Mrs. Howard and her husband to a ⅛ undivided interest therein. This lease was also dated July 10, 1936, and provided for the deposit of delay rentals in the First National Bank of Angleton. Each of said leases contained the following provision: “Without impairment of lessee’s rights under the warranty, in event of failure of title, it is agreed that if lessor owns an interest in said land less than the entire fee simple estate then the rentals -and royalties to be paid lessor shall be reduced proportionally.”

In June, 1937, before delay rentals were due under either of said leases, appellee deposited in the First National Bank of ⅝ Angleton a check for the sum of $500 payable to the Cannons and the Howards, jointly, as^ts proportional part of the delay rentals due under said leases, with the instruction that it be deposited to their joint account as delay rentals under said leases. The Cannons refused to accept this deposit as a payment of the delay rentals due them and thereafter executed an oil and gas lease, covering the 500 -acres under lease to appellee, to appellant, F. R. Perkins.

The only question presented in this appeal is whether the payment by appellee into the joint depository of the amount due as delay rentals under said leases with the instruction that said fund be deposited to the joint account of the grantors in said two leases was, under the existing facts, a sufficient compliance with the terms of the lease from the Cannons to W. C. Corbett, Jr., to prevent a cancellation thereof.

Appellee contends that, since it was proved on the trial of said cause and later stipulated by the parties that the Cannons were not the owners of the entire interest in the land under lease, and that it had secured a lease -from the Howards covering the other interests therein, the deposit made by appellee of the entire amount of delay rentals due on said leases to the joint account of the owners of the land with the depository agent named in both leases, was a full compliance with the terms of the Cannon lease, in that said lease provided that, in the event the Cannons did not own the entire fee in the leased property, the rentals and royalties to be paid said lessor under said lease should be reduced proportionally.

While we have been cited to no decisions involving the precise questions here presented and have found none, they can, we think, be determined by the established principles of law.

Unquestionably, if appellee, instead of making a deposit with the joint depository agent named by the parties, had instituted an interpleader suit and had tendered the $500 payment for delay rentals into court to the account of the lessor entitled thereto, appellee would have been protected not only in the tender of said rental but in its expenses incurred therein, and lessor, although he had not agreed thereto, would not have been able to secure the rental deposit unless and until he had proved his right thereto. Had there been different depository agents an interpleader suit would have been imperative. In the instant case, however, where a common depository agent was named under both leases, the tender made by appellee not only insures the payment of said rentals to the parties entitled thereto, but in the event of a failure by the parties to agree as to the ownership of said fund an interpleader suit may later be filed for the purpose.

Both the Cannon and the Howard leases provide for their termination if drilling operations are not commenced within a year from their date, “unless on or before such anniversary date lessee shall pay or tender (emphasis ours) said rentals to lessor or to the credit of lessor in the First National Bank óf Angleton, Texas, (which bank and its successor are Lessor’s agent * * *)”. Said leases further provide that without impairment of lessee’s rights under the warranty in the event of the failure of lessor’s title and lessor owns an interest in said land less than the entire fee simple estate therein, that then the rentals and royalties to be paid lessor shall be reduced proportionally.

It is uncontroverted that at at about the time of the purchase of a portion of the lease on the property in question from W. C. Corbett, Jr., appellee had notice of a claim by Mrs. Abbie Howard to a ¾2 interest in the land covered by said lease, and that, in order to protect its interest in said lease, appellee procured a lease from her covering a ¾2 interest in said property; that during the trial of said cause the Cannons and the Howards entered into a binding agreement, which was embodied in the judgment rendered, that the Cannons owned a ¾2 interest in the land covered by said leases and that the Howards owned a ¾2 interest therein on the date said leases were executed. It is also uncontroverted that a tender of the full amount of the delay rentals due under said leases was tendered to the owners of said properties by appellee through the common depository agent named in both leases, prior to their anniversary date, by joint check payable to the’owners of said land. .Under the above facts, we think that the tender made by appellee was a substantial and sufficient compliance with the terms of said Cannon lease to prevent a cancellation thereof.

No sufficient statement of the facts upon which appellant relies to establish a limitation title is submitted in his brief under the propositions presented to justify the submission of issues thereon. The question of limitation will, therefore, not be considered in this opinion.

Appellee contends by counter-propositions, that the sales of the interests of Mrs. Abbie Howard in the property in question to Elmer M. Cannon under tax judgments were void, for. the reason that, while said judgments fixed separate amounts of taxes, interest and costs against each separate and distinct tract of land sold and directed that each tract • be sold separately, it appeared from the notices of sale and sheriff’s deed in each suit that they were sold as one tract. This contention cannot be sustained.

There is no evidence in the record, outside of the court proceedings, from which the manner in which said sales were made can be determined. However, there is no sufficient evidence indicating that the order of the court to sell the land in separate parcels was not complied with by the sheriff. The recitals in said deeds are that the land was sold by virtue of and in obedience to an order of sale under the judgments rendered. There are no recitals in either deed that separate amounts of money were paid for separate tracts of land, or that said tracts of land were sold as one entire tract.

The facts in the cases of Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941, 84 A.L.R. 319; Fink v. Grevsgard, Tex.Civ.App., 123 S.W.2d 383, and Fink v. White, Tex.Civ.App., 133 S.W.2d 137, cited by appellee as governing his contention, are distinguishable from those in the instant case in that, in each of the cited cases, there were either findings of fact that the land was sold as one entire tract or stipulations to that effect, while in the instant case there was an instructed verdict.

It is the established rule in this state that, as against an instructed verdict, the party against whom such judgment is rendered must be given the benefit of all fact evidence, circumstantial or otherwise, bearing on his cause of action, as’ well as all reasonable inferences arising therefrom. Moller v. Barnett, Tex.Civ.App., 129 S.W. 2d 456; Lawson v. Hutcherson, Tex.Civ.App., 138 S.W.2d 131.

Further, in the case of Rule v. Richards, Tex.Civ.App., 149 S.W. 1073, in which the facts were similar in all material respects to those in the instant case, it was held that a recital in a sheriff’s deed, that the premises described therein, including 120 tracts, “were struck off to Mrs. N. A. Harwell for the sum of $50.00, she being the highest and best bidder therefor”, does not exclude the possibility that the tracts were sold separately.

We think, however, that the titles acquired by Elmer M. Cannon under said tax deeds do not affect the judgment rendered herein, in view of the fact, as we have previously stated in this opinion, that the tender made by appellee was a substantial and sufficient compliance with the terms of said Cannon lease to prevent a cancellation thereof.

We therefore conclude that the judgment appealed from should be in all things affirmed. It is accordingly so ordered.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    HOLMES v. TRAVELERS INS. CO.
    No. 11145.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied March 6, 1941.

      M. M. Guinn, of Rusk, and White & Yarborough, of Dallas, for appellant.
    Pinkney Grissom and Thompson, Knight, Harris, Wright & Weisberg, all of Dallas, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in a compensation suit brought by appellant, O. H. Holmes, to set aside an award of the Industrial Accident Board in favor of appellee, Travelers Insurance Company, and to recover compensation for the loss of an eye and for permanent partial disability to his left leg, alleged to have been the result of an injury sustained by him in the course of his employment with the Palestine Creamery Company, a partnership composed of Frank'P. and William D. Lacey, who were alleged to have carried compensation insurance with appellee.

Appellee answered by general denial, general demurrer and exceptions. It specially pled that appellant was a farm laborer and as such was excluded from the operation of the compensation laws of the State of Texas. It alleged that the workmen’s compensation policy issued to the Palestine Creamery Company covered only the classification of ice cream manufacturing and included only the employees of said company engaged in that occupation and was not intended to and did not cover the operations of the dairy farm on which appellant was employed at the time he received said injuries.

At the close of appellant’s evidence, on motion of appellee, the court withdrew the case from the jury and rendered judgment in favor of appellee and against appellant.

At the time he received the injuries in question, appellant was employed by Frank P. and William D. Lacey as manager of a farm or ranch consisting of between 1,500 and 1,600 acres of land in Anderson County, upon which they conducted a dairy farm. The said Frank P. and William D. Lacey also owned and operated the Palestine Creamery Company, located at Palestine, Texas.

Appellant was injured on said dairy farm while engaged in grinding feed for the cattle under his charge. It is not shown the appellant had any connection with the operation of the Palestine Creamery Company, with the exception of the fact that, on occasions, he had delivered milk to the Creamery Company.

The only question presented for review in this appeal is whether appellant is entitled to recover compensation for. the injuries in question under the Workmen’s Compensation Law of Texas. Vernon’s .Ann.Civ.St. art. 8306 et seq. The determination of this question depends on the character of work in which he was engaged at the time he received said injuries.

Section 2 of Article 8306, Revised Statutes of 1925, expressly provides, in part, that the-provisions of the Workmen’s Compensation Law shall not apply to actions to recover damages for personal injuries nor for death resulting from' personal injuries sustained by domestic servants, farm labor--ers, or ranch laborers.

In the case of Gordon v. Buster, 113 Tex. 382, 257 S.W. 220, 221, which arose prior to an amendment of said Section 2 of Article 8306, which at that time did not expressly exclude “ranch laborers”, the Supreme Court, speaking through Justice Pierson, held that the term “farm laborers”, as used in the statute, embraced ranch laborers. In its opinion it said: “From the general context of the act we think it was the purpose and intention of the Legislature in enacting this law to make a distinction as between agricultural pursuits generally and those of a more hazardous nature. The Legislature of Texas, by excepting ‘domestic servants’ and ‘farm laborers’ from the operation of the Workmen’s. Compensation Act, has exempted the farming and agricultural industry from the operation of the law.”

In determining whether an employee is a farm or ranch laborer within the meaning of the Compensation Law our courts have uniformly held that the controlling consideration is the nature of the work the injured employee is hired to do on the employer’s premises. It is held that an employer may at the same time be engaged in two or more businesses or occupations, the servants in one or more being covered by the Act and those in one or more of the others being excluded therefrom.

In the case of Hill v. Georgia Casualty Co., Tex.Com.App., 45 S.W.2d 566, 567, the Commission of Appeals, under a parallel state of facts, has passed on the precise question presented in this appeal.

In this case the appellant was an employee of a nursery conducted for the propagation and sale of trees. The proprietor thereof maintained a number of milk cows on the place and used the milk and butter from the cows for consumption by his family and the nursery employees. Appellant, one of the employees on the place, was killed by an automobile on the highway while taking a cow elsewhere for breeding. The court held him to be in the same-classification as an agricultural laborer engaged in the same occupation and he was denied compensation under a workmen’s compensation policy. The court, in holding that one engaged in the nursery business was engaged in an agricultural pursuit, said: “It is a matter of common knowledge that the general character of work done in nursery operations is not materially different from work done in other agricultural operations; and that the work pertaining to the nursery business is not more hazardous, with respect to personal injury, than the work which is ordinarily performed on a cotton plantation, say, or a wheat farm.”

Webster’s New International Dictionary defines the word “dairy” to be “the department of farming or of a farm that is concerned with the production of milk, butter and cheese; hence, a dairy farm; also the cows of a farm.”

Under the above authorities there is .no question but that one engaged as manager of a dairy farm is engaged in an agricultural pursuit, and the undisputed fact that, at the time of his injuries, appellant was preparing food in a barn on said farm for feeding to the animals under his charge, unquestionably determines that he was engaged in an agricultural pursuit and that, therefore, his injuries were not compensa-ble under the Workmen’s Compensation Act.

It is the established law in this state that, while an employer of labor, operating under the Workmen’s Compensation Act, cannot cover part of his employees and leave part of them uncovered, where such employees are engaged in the same general class of business, it is also well settled that an employer who conducts two separate and distinct kinds of business, each of which involves different risks, pay rolls, and premium rates, may elect to insure his employees in one such business and not insure his employees in another business. Buice v. Service Mutual Ins. Co., Tex.Civ.App., 90 S.W.2d 343; Guerrero v. United States F. & G. Co., 128 Tex. 407, 98 S.W.2d 796.

The policy involved herein was issued to Frank P. and William D. Lacey, doing business as Palestine Creamery Company. It purports to cover only the employees of the insured who were engaged in the manufacture of ice cream. The record not only fails to show that appellant was connected with the operation of the creamery company, but it affirmatively shows that, at the time he received the injuries in question, he was engaged in an agricultural pursuit which was a part of the duties of his employment, that of preparing food for the animals in his charge on said dairy farm.

It follows from above conclusions that appellant was not, as a matter of law, covered by the compensation insurance policy in question at the time of his alleged injuries. The judgment of the trial court is, therefore, in all things affirmed.

Affirmed.


author: ALEXANDER, Chief Justice.

text:
    MANCHACA et al. v. MARTINEZ et al.
    No. 7499.
    Supreme Court of Texas.
    Feb. 26, 1941.
    Russell & Edwards, of Nacogdoches, for plaintiffs in error.
    Seale & Thompson, of Nacogdoches, for defendants in error.
   ALEXANDER, Chief Justice.

The sole question presented by this appeal is the right of the owners of the fee to compel a partition of the homestead during the rightful occupancy thereof by the surviving husband.

The land in question, consisting of 200 acres, was the • separate property of Mary Martinez, and was occupied by her and her husband as their homestead during her lifetime. After her death her husband continued to occupy the property as his homestead. The grantees of some of the heirs of Mary Martinez brought suit against the husband and other heirs for partition of the property. It is their contention that, although they are not entitled to disturb the right of possession of the homesteader, they are nevertheless entitled to have the property partitioned, subject to the right of possession by the surviving husband. The trial court denied the right to partition, and the Court of Civil Appeals affirmed the judgment. 119 S.W.2d 702.

Article XVI, Section 52, of the Constitution, Vernon’s Ann.St., provides as follows: “On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same - laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.”

If the above constitutional provision were the only obstacle, a partition, subject to the right of the homesteader to continue to have the exclusive possession of the property, might be justified, because the purpose of the constitutional provision was doubtless to protect the right of the homesteader in his exclusive possession of the property; and if such right of possession was not disturbed by the partition, he would suffer no injury.

But there is another fundamental obstacle to partition under such circumstances. It is the well-established rule that, in the absence of a statute to the contrary, a party, in order to be entitled to compel , partition, must not only own an interest in the land, but he must be entitled to possession of a portion thereof. 47 C.J. 311; 20 R.C.L. 727, § 11; 32 Tex.Jur. 160; Henderson v. Chesley, Tex.Civ.App., 273 S.W. 299; Tieman v. Baker, 63 Tex. 641, 643; Brito v. Slack, Tex.Civ.App., 25 S.W.2d 881; Luckel v. Barnsdall Oil Co., Tex.Civ. App., 74 S.W.2d 127.

The rule here under consideration was expressed by Associate Justice Stayton in Tieman v. Baker, supra, as follows:

“The very purpose of partition is to enable one holding or entitled to hold with others an undivided possession, to sever that possession and right, and thenceforth to hold an exclusive possession of a specific part of the property, which before partition all the co-owners had the equal right to possess.
“When the right to possess the entire property exists in one holding a life estate, if such person has no other estate, no right to partition exists; for it could confer no benefit, as no higher estate can be acquired by partition.”

Under the above rule, since the plaintiffs were not entitled to possession of any of the land sought to be partitioned, they were not entitled to partition thereof.

Our holding in this respect is not in conflict with the rule announced in Hudgins v. Sansom, 72 Tex. 229, 10 S.W. 104. In that case other property in addition to the homestead was involved, and consequently those seeking partition were entitled to possession of some of the property sought to be partitioned. The Court adhered to .the rule that the homestead itself could not be divided or partitioned among the parties to the suit; but held that it might be taken into consideration in the partition of the whole estate.

The judgments of the trial court and the Court of Civil Appeals are affirmed.


author: PER CURIAM.

text:
    CITY OF BAIRD v. WEST TEXAS UTILITIES CO.
    No. 25432.
    Supreme Court of Texas.
    Feb. 19, 1941.
    Scarborough, Yates & Scarborough, of Abilene, for plaintiff in error.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, for defendant in error.
   PER CURIAM.

We agree with the holding of the Court of Civil Appeals to the effect that Articles 1121 and 1122 apply only to public utilities operating in one municipality. We express no opinkuTon the other question discussed by the Court of Civil Appeals.

The application is “Dismissed W. O. J. —Correct Judgment.”


text:
    A. B. C. STORES, Inc., v. TAYLOR.
    No. 25371.
    Supreme Court of Texas.
    Feb. 5, 1941.

      Orgain, Carroll & Bell, Major T. Bell, and John G. Tucker, all of Beaumont, for plaintiff in error.
    Elton Cruse, of Beaumont, for defendant in error.
   PER CURIAM.

This case (Tex.Civ.App., 145 S.W.2d 294) is before us upon application for writ of error. The trial court’s judgment was reversed and remanded by the Court of Civil Appeals because of a conflict in the jury findings with respect to defendant’s negligence. The Court of Civil Appeals correctly holds that the findings of negligence on the part of defendant destroy each other.

The jury further found that plaintiff was guilty of contributory negligence proximately causing her injuries. Defendant insists that in the light of this finding the Court of Civil Appeals should have affirmed the judgment for defendant. •

Ordinarily such finding of contributory negligence would require a rendition of judgment in defendant’s favor. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334.

The record shows, however, that the jury’s finding, in effect, upon the issue of unavoidable accident was that the occurrence upon which recovery was sought was an accident. This finding, carrying with it, as it does, the further finding that neither plaintiff nor defendant was guilty of negligence, is in conflict with the finding that plaintiff was contributorily negligent, as well as with the finding that defendant was negligent.

The trial court should have sustained plaintiff’s motion to return the jury to its room for further consideration of the charge, pointing out in this connection (without comment) the issues the findings to which are in conflict; and should have •denied defendant’s motion to render judgment in its favor.

While the judgment of the Court of Civil Appeals reversing and remanding the cause is correct, the ground upon which its judgment is predicated is erroneous.

The instruction of the Court of Civil Appeals to omit upon another trial the general charge contained in the second paragraph of the court’s definition of- unavoidable accident is correct.

The application for writ of error is dismissed “W. O. J. — Correct Judgment.” Vernon’s Ann.Civ.St. art. 1728; Republic Ins. Co. v. Highland Park Independent School Dist., 133 Tex: 545, 125 S.W.2d 270-


author: GERMAN, Commissioner.

text:
    STRAUS v. BROOKS et al.
    No. 2346-7588.
    Commission of Appeals of Texas, Section A.
    Feb. 26, 1941.

      Touchstone, Wight, Gormley & Price, Allen Wight, and Geo. T. Burgess, all of Dallas, for plaintiff in error.
    Cedric G. Hamlin and Geo. T. Lee, both of Dallas, for defendants in error.
   GERMAN, Commissioner.

On December 21, 1925, Alex Rutlin and wife, Lelia Rutlin, executed deed of trust on a part of Lot No. 1 in Block 621-C in the City of Dallas, measuring 39 feet by 108 feet. On that date said lot was being used by them for the purpose of a home. Said deed of trust was executed to secure payment of one note for $1,500 payable to H. S. Lawson. Said note included renewal of the sum of $95.35 paid as taxes on the property and the sum of $318 due Cowser Lumber Company and secured by valid mechanic’s lien. In said deed of trust there was a recital that said property did not constitute any part of the homestead of Alex Rutlin and Lelia Rutlin. On December 21, 1925, Alex Rutlin and Lelia Rutlin made affidavit that the property covered by said deed of trust had never been occupied by them for homestead purposes and was not at that date used by them as a homestead. On December 18, 1925, Alex Rutlin executed designation in which he declared that a part of Lot No. 7 in Block 569-C in the City of Dallas was the homestead of himself and family.

December 21, 1925, the note for $1,500, together with the deed of trust lien securing same, was assigned by Lawson to S. Top-letz. May 5, 1926, S. Topletz assigned the note to M. Saffir, together with the lien securing same. On December 31, 1928, M. Saffir assigned the note and lien to Eugene Straus. On the same day Alex Rutlin and wife, Lelia Rutlin, executed a new note in the sum of $1,773, which included balance and interest due on the prior note and the additional sum of $213, which it is recited was advanced for taxes for the year 1928. A deed of trust was executed on the same date on the same property to secure such renewal note. In the deed of trust it is recited that the property described constituted no part of the homestead of Alex and Lelia Rutlin.

The testimony shows that when Straus took assignment of the note and lien there was delivered to his attorney for examination an abstract of title, together with the affidavit and designation of homestead hereinbefore mentioned. The attorney for Straus testified that he relied upon these instruments in advising Straus concerning the title to the property covered by the lien.

August 17, 1929, decree was entered in the District Court of Dallas County divorcing Alex Rutlin and wife, Lelia Rutlin. By this decree the property covered by the lien was declared to be community, property and same was set apart to Lelia Rutlin and her minor child so long as same was used as a home by Lelia Rutlin. January 2, 1930, Alex Rutlin conveyed to Lelia Rutlin (recited to be a widow) his interest in said property describing same as follows: “My undivided one-half interest in and to a part of Lot No. One in Block No. 621-C of the City of Dallas, Dallas County, Texas, the same measuring 39 feet by 108 feet, as shown by the map or plat records of Dallas County, Texas.”

After reciting the consideration of $500 paid and to be paid in a certain manner the •deed contained this further recital of consideration: “And the further consideration of the said Lelia Rutlin assuming the payment of an indebtedness now owing to Eugene Straus, which indebtedness is secured by a first lien on said property.”

The jury found that this assumption was a part of the consideration for the conveyance. This deed was filed for record March 4, 1930.

Thereafter Lelia Rutlin married Ross Brooks. On December 31, 1931, Lelia Brooks and her husband, Ross Brooks, executed a renewal note to Eugene Straus for $1,900 payable in monthly installments and bearing 10 per cent, interest. Contemporaneously therewith they executed a deed of trust to J. B. Quinn, trustee, to secure Straus in the payment of said renewal note, which deed of trust contained the following recital:

“It is expressly understood and agreed that the note herein and hereby secured is given in lieu of, substitution for and in renewal and extension of one certain note dated December 31, 1928, in the principal sum of $1,773.00, executed by Alex and Lelia Rutlin, payable to the order of Eugene Straus, described in deed of trust of even date to John C. Roberts, as Trustee, together with accrued interest thereon, and the holder of the note herein and hereby secured shall be entitled to all the rights, title, remedies and equities to which the holder of the note herein and hereby renewed was entitled.
“It is expressly understood and agreed that the note herein and hereby secured is a first and superior lien upon the herein-above described property.”

Prior to the institution of this suit certain payments were made by Lelia Brooks upon this indebtedness.

The City of Dallas, under proper ordinance, on the 13th day of August, 1930, levied paving assessment. against the property in question, and issued certificate in the sum of $149.23 to H. L. Cannady Company of Texas. February 20, 1930, Lelia Rutlin as a feme sole entered into a contract with H. L. Cannady Company of Texas for the paving of the property and created a contract lien for that purpose.

On August 13, 1930, the City of Dallas assessed the property for street paving in the amount of $340.11 and issued certificate to H. L. Cannady Company of Texas. ■ February 20, 1930, Lelia Rutlin, acting as a feme sole, entered into a contract with H. L. Cannady Company of Texas for this paving and created a contract lien to secure same. Thereafter H. L. Cannady Company of Texas changed its charter name to United Construction Company.

The present suit was instituted in the District Court of Dallas County by Lelia Brooks and husband, Ross Brooks, against Eugene Straus, holder of the note and deed of trust lien mentioned, and in this suit United Construction Company intervened, asserting its paving liens under the certificates and contracts executed to it. Plaintiffs sought to cancel and annul the lien asserted by Straus on the ground that same was void because affixed upon the homestead of Lelia Brooks. Defendant Straus by cross-action sought a recovery of his debt and foreclosure of his deed of trust lien upon the whole property.

In the trial court judgment was entered in favor of defendant Straus against plaintiffs for the sum of $2,508, with foreclosure of deed of trust lien on the undivided one-half interest in the property conveyed by Alex Rutlin to Lelia Rutlin, less a life estate in Lelia Brooks, but foreclosure of the deed of trust lien was denied as to the other one-half interest owned by Lelia Rutlin Brooks prior to the purchase from Alex Rutlin. Judgment was entered in favor of the United Construction Company against Lelia Brooks individually for its debt, with foreclosure of lien upon thq whole property, but only as a first lien against the interest owned by Lelia Rutlin Brooks before her purchase from Alex Rutlin.

The Court of Civil' Appeals reformed and affirmed the judgment of the trial court. 126 S.W.2d 542. As reformed the Court of Civil Appeals awarded judgment in favor of defendant Straus in the sum of $2,508. Of this amount the court found that $476.61 was validly secured by first lien on all the property and foreclosed the deed of trust on all of the property for that sum. Foreclosure was allowed on a one-half interest (purchased by Lelia Rut-lin Brooks from Alex Rutlin) to secure the whole sum of $2,508. Judgment for inter-vener United Construction Company against Lelia Brooks for $752.97, with interest from certain dates, was affirmed, and foreclosure of the paving lien against all of the property was allowed in its favor, but only as a second lien. Writ of error in favor of Straus was granted by the Supreme Court, and writ on behalf of plaintiffs and inter-vener was granted because of granting writ in favor of defendant Straus.

Estoppel is strongly urged by plaintiff in error Straus. We do not find it necessary to decide that question. We think the deed of trust lien is enforceable as to the entire lot by reason of the assumption on the part of Lelia Rutlin, while a feme sole, as a consideration for the one-half interest purchased by her from Alex Rut-lin. It has long been settled that after divorce, a widow may incumber her homestead as she may choose. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867; Dabney v. Schutze, Tex.Com.App., 228 S.W. 176; Keels v. First Nat. Bank, Tex.Civ.App., 71 S.W.2d 372, 373; Leake v. Saunders, 126 Tex. 69, 84 S.W.2d 993.

It is also 'well settled that contracts by one capable of contracting may be made by assumption, when such assumption is a consideration for the purchase of property. An assumption of this kind, when accepted by the payee of the obligation assumed, or the mortgagee, becomes a contract under which the one making the assumption becomes the principal obligor and the original maker the surety. The recital of an assumption of a debt or lien in a deed of conveyance is contractual in its nature, and operates to create a new contract upon the part of -the one making the assumption, regardless of the enforceability of the original obligation. Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871, 40 L.R.A.,N.S., 672; Boyett v. Rutland Bank, Tex.Civ.App., 116 S.W.2d 857; Weatherford v. Natl. Life Ins. Co., Tex.Civ.App., 94 S.W.2d 250.

The situation we think is analogous to the assumption of a debt or mortgage which is infected with usury. The reason for the rule in that kind of a case is stated, in 27 R.C.L., page 288, as follows: “A vendee who as a part of the purchase price assumes and agrees to pay a mortgage on the property sold, is estopped from asserting that the obligation secured thereby is usurious. This is particularly true where the promise to pay is included in the deed. The whole title of the vendee rests upon the conveyance, and the continued existence of the mortgage, as an incumbrance, forms a part of it. He cannot be permitted to claim title both under and against the same deed; to insist upon its efficacy to confer a benefit, and repudiate a burden with which it is qualified; to affirm a part and reject a part.”

For another reason it sometimes is held that the one assuming an indebtedness and lien is not permitted to deny the validity of same. The holder of the debt and lien may so deal with the one who has assumed the indebtedness, in reliance upon such assumption, as to release the original obligor, and thus may lose his debt and lien unless the assumption be enforced. In this instance Straus accepted the assumption by Lelia Rutlin and entered into a new contract with her and her second husband, changing the terms of the original indebtedness so as to make same payable in monthly installments, taking a new deed of trust lien; we have no doubt that thereby Alex Rutlin was released from liability on the original indebtedness. See Louisville Joint Stock Land Bank v. Ezell, 263 Ky. 367, 92 S.W.2d 349.

Nor can we agree with the holding of the Court of Civil Appeals that the assumption related only to the one-half interest purchased by Lelia Rutlin from Al-ex Rutlin. In our opinion the extent of the lien created by the assumption is to be measured by the extent of the assumption, and not by the extent of the interest purchased. The assumption was to the extent of the whole indebtedness. The indebtedness was unquestionably assumed according to the terms and conditions of the note evidencing same. The note which was assumed showed on its face that it was secured by a first lien upon the whole property. The whole debt was assumed as a part of the consideration for the one-half interest which was purchased, and the lien which secured that part of the purchase money undoubtedly followed the debt assumed. Lelia Rutlin was then a feme sole and could contract to pay for the property purchased in any manner she saw fit to do, and undoubtedly in making the assumption she intended to secure the purchase money by recognition of lien upon the whole property.

The application of Lelia Rutlin Brooks and husband, joined in by United Construction Company, complains primarily of the action of the Court of Civil Appeals in the application of payments. Their complaint in this regard is predicated upon an assumption that the debt and lien was in part invalid. Upon this theory they contend that application of payments should be made first to discharge that part of the original lien which was valid, and not first be applied to the discharge of interest and then to payment of principal. As we are holding that the lien was valid as to the entire indebtedness and not merely as to the valid portion of the original indebtedness which had been brought forward, it follows that the application of payments is governed by the ordinary rules in such cases. See 32 Texas Jur., pp. 673-683.

Plaintiff in error Lelia Brooks et al. also assert that it was shown as a matter of law that the assumption clause in the deed of Alex Rutlin to Lelia Rutlin was inserted therein by mutual mistake. The jury found that this assumption was a part of the consideration for the conveyance by Alex Rutlin of his interest in the land to Lelia Rutlin. The fact that Lelia Rutlin Brooks and her second husband renewed and rearranged this indebtedness so as to make it payable in monthly installments shows conclusively that the finding of the jury was correct.

No question appears to have been raised as to superiority of the paving liens over the prior lien held by Straus, except on the theory that the Straus lien was in whole or in part void. As same was not void we think the question of priority is determined by the holding in the case of Continental Investment Co. v. Schmeich, Tex.Civ.App., 145 S.W.2d 219, writ refused.

The judgments of the Court of Civil Appeals and of the district court are reversed, and the cause is remanded with instructions to the trial court to enter judgment in favor of the plaintiff in error, Eugene Straus, for the amount of his indebtedness and with foreclosure of lien, as a first and superior lien, upon all of the property in question, and to enter judgment in favor of the United Construction Company for its indebtedness and foreclosure of its lien as a second, lien.

Opinion adopted by the Supreme Court.


author: GRAVES, Judge. CHRISTIAN, Judge.

text:
    WILLIS v. STATE.
    No. 21421.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Rehearing Denied March 5, 1941.

      John Davenport and W. W. Ballard, both of Wichita Falls, and Homer Bishop, of-Seminole, Old., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an unlawful assembly, and by the jury punished by a sentence of three months in the county jail.

It appears from the evidence that on a certain oil lease in Archer County six men were at work moving an oil rig, being employed to do so by the owner of the lease. That appellant, in company with some seventeen or eighteen other men, came upon such lease and began a conversation with the men working thereon. The burden of this conversation seemed to be that these men wanted the workers to .join the union, which request these workers refused. The talk began to grow rather rough, and some one took the key out of the ignition on the truck being used to move this rig, and finally . the visitors left, after making some threats directed at these six men working on this lease.

After these rig movers had completed their task, they got in their automobile, to which was attached a trailer full of their tools, and started away from the lease on a public road. This was some hours after this first visit. As these laborers came out on the public road they were eventually stopped by men in two cars, many of whom were in the crowd who had earlier appeared on the lease, which men had hatchets, wrenches and clubs in their hands, and the men in these two cars then began an unprovoked assault upon these six laborers, and inflicted many cuts, bruises and contusions upon them. Among these attackers was the appellant, who cursed the foreman of these laborers, and told him “don’t you come back here any more,” while he was beating such foreman.

The grand jury of Archer County indicted nineteen men for this unlawful assembly, all in the same indictment. At the time of the trial, however, the county attorney of that county had filed a separate complaint and information against appellant, upon which separate pleadings this cause went to trial.

At the proper time appellant filed a motion for a severance, and a request that these nineteen defendants be tried in a certain order, stating in such motion that they were all charged with the same offense, and that the defendants had agreed on such order of trial. The trial court overruled such a request for severance, and proceeded with the trial of this appellant under the complaint and information. To this action of the court appellant duly excepted. That appellant was entitled to such a severance as a matter of right is shown by our statutes, Art. 651 of the Code of Criminal Procedure, which reads as follows: “Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such other party or parties is material for the defense of the affiant, and that affiant believes that there is not sufficient evidence against said party or parties to secure his or their conviction; and such party whose evidence is so sought shall be tried first. Such affidavit shall not, without other sufficient cause, operate as a continuance to either party.”

And immediately thereafter we find Art. 652, C.C.P., as follows: “If a severance is granted, the defendants may agree upon the order in which they are to be tried, but if they fail to agree, the court shall direct the order of the trial.”

In the case of King v. State, 35 Tex.Cr.R. 472, 34 S.W. 282, it is held that upon a proper motion, the right to a severance is absolute.

In the case of Ligon v. State, 82 Tex.Cr.R. 147, 198 S.W. 787, we find a case with similar facts to the present case. Ligón was charged by complaint with an unlawful assembly with others, and at the inception of the trial he filed his motion for a severance, which motion complied with the statute. This motion was overruled. This court, speaking through Judge Morrow, said:

“It was alleged in the information that in committing the offense charged appellant acted with a number of other persons named in the pleading. Appellant made a timely motion for a severance and for separate trials, to which motion he attached the separate informations against several coprincipals. Article 791, Code Cr.Proc., makes those who were charged with the same offense growing out of the same transaction incompetent witnesses for appellant. And article 791, supra, and article 91, P.C., .provide that where so indicted they may claim a severance, and if any one or more be acquitted, they .may testify in behalf of the others. Article 727, C.C. P., provides the procedure for obtaining severance. Appellant’s motion was in full compliance with the article last named, averring under oath that the evidence of his codefendants charged by separate information would be material to his defense, and that he verily believed there was not sufficient evidence against them to secure a conviction. The order of trial was suggested in the affidavit, and no opposition filed to it so far as disclosed by the record. There is no reason assigned, so far as the record before us discloses, for the refusal to grant the motion to sever. The appellant having „ complied with the statute in making his application for a severance, to which the statute entitled him, the trial court was without discretion to overrule it without sufficient reasons, which should be shown in the record. Branch’s Ann.P. C. pp. 375, 376, and cases cited.
“Because of the refusal of the court to grant the order of severance, the judgment of the lower court is reversed, and the cause remanded.”’

That this rule of severance is applicable in a misdemeanor case as well as a felony is held in Sealey v. State, 120 Tex.Cr.R. 63, 47 S.W.2d 835, which case was reversed by Judge Lattimore because of the trial court’s refusal to grant a severance in a trial for an alleged disturbance of the peace said in the motion to have been jointly committed by that appellant and another.

Again we held in Jackson v. State, 123 Tex.Cr.R. 345, 58 S.W.2d 1014: “The accused is entitled to a severance as an absolute right when the terms of the statute are complied with. See collated cases under section 734, Branch’s Ann.Tcx.P.C., and in note 2 under article 650, Vernon’s Ann.Tex.C.C.P. vol. 2; McBride v. State [121 Tex.Cr.R. 549], 51 S.W. (2d) 337; Vargas v. State, 104 Tex.Cr.R. 283, 234 S. W. 564.”

This doctrine had been forcefully laid down by Judge Hurt in the case of Shaw v. State, 39 Tex.Cr.R. 161, 45 S.W. 597, 599, in the following language : “He [Shaw] had a right to have Wilson [a co-defendant] tried first, and, if acquitted, he might use him as a witness, unburdened by the pending prosecution against him, — a right for him to testify as any other citizen, free from the particular charge, he being acquitted thereof, and not testify under a cloud, and perhaps believing that, by testifying strongly against the appellant, it would go easier with him in his case.”

There are other matters that are presented to us in appellant’s brief that we do not think are necessary to a decision of this case. However, we do say that we think that the actions of appellant and his companions on the oil lease in the morning are a portion of the transaction in the afternoon, and can be deemed one continuous transaction; and this is especially so in this instant case because of the fact that there is testimony herein that appellant was present at each place and participated in the conversation on the lease and in the outrageous conduct on the highway where the beatings occurred.

For the failure to grant the motion for a severance this judgment is reversed and the cause remanded.

On State’s Motion for Rehearing.

CHRISTIAN, Judge.

Counsel for the State points out that we were in error in the original opinion when we stated that the conviction was for unlawful assembly. The conviction was for engaging in a riot. The original opinion properly stated the punishment.

Article 651, C.C.P., reads as follows: “Where two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit so stating, and that the evidence of such other party or parties is material for the defense of the affiant, and that affiant believes that there is not sufficient evidence against said party or parties to secure his or their conviction; and such party whose evidence is so sought shall be tried first. Such affidavit shall not, without other sufficient cause, operate as a continuance to either party.”

Article 395, C.C.P., provides: “An indictment is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.”

We quote Article 413, C.C.P., as follows: “An ‘information’ is a written statement filed and presented in behalf of the State by the district or county attorney, charg-. ing the defendant with an offense which may by law be so prosecuted.”

In view of the fact that the prosecution proceeded upon complaint and information, it is the State’s contention that Article 651, supra, relating to severance, was without application. We are unable to agree with this contention. The statutes relating to severance as they existed in 1917 were re-enacted by the Legislature in 1925 in substantially the same language upon the adoption of the Revised Criminal Statutes. In Ligon v. State, 82 Tex.Cr.R. 147, 198 S.W. 787, it is shown that the opinion was rendered November 14, 1917. The prosecution in that case was upon complaint and information charging an unlawful assembly. The codefendants of Ligón were charged by separate infor-mations. The judgment of the court below was reversed because of the denial of Ligon’s application for a severance. In view of the re-enactment of the statutes dealt with in Ligon’s case in substantially the same language, we are constrained to hold that the Legislature approved the interpretation of such statutes previously given by this court in the opinion referred to. We quote from Parrish v. State, 126 Tex.Cr.R. 308, 71 S.W.2d 274, 275, as follows : “On the facts before it in the Martin Case [Martin v. State, 82 Tex.Cr.R. 199, 198 S.W. 956] supra, the court, by a unanimous opinion, held that there was error in refusing to submit to the jury the question of a suspended sentence. After the decision of the Martin Case, the Legislature in 1925 (in articles 776 to 781, inclusive) re-enacted the Suspended Sentence Law without change of verbiage. Such reenactment has been generally regarded by. courts and text-writers as equivalent to a. re-enactment of the statute amounting to legislative approval of the interpretation of the statute previously given by the courts.”

See, also, Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225, and authorities cited.

■ All other contentions made by the State in the motion for rehearing have been carefully considered and are deemed to be without merit.

The motion for rehearing is overruled.

PER CURIAM.

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


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    RALPH v. STATE.
    No. 21281.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Rehearing Denied March 19, 1941.
    John Davenport and W. W. Ballard, both of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of the offense of engaging in a riot, and his punishment was assessed at confinement in the county-jail for a period of one year.

The appellant’s first contention is that the court erred in overruling his motion to quash the complaint and information on the ground that the allegations therein are too uncertain and indefinite, and that they are confusing,- etc. The information, which follows the language of the complaint, omitting the formal parts, reads as follows:

“ * * * that Johnnie Ralph, hereinafter styled defendant, on or about the 1st day of March, A.D., 1940, and before the filing of the complaint and this information, in the County of Archer and State of Texas, did then and there unlawfully engage in a riot with J. C. Willis, Lloyd Henry, Jim Jackson, J. L. Reece, Sam Smith, Austin Reynolds, E. H. Pearce, C. H. Pearce, C. J. Ploganmiller, and other persons whose names are unknown, who did then and-there unlawfully assemble and meet together for and with the purpose and intent to aid each other by violence and by the use of hatchets, metal wrenches, clubs, and wooden mattock handles, to interfere with, intimidate, and prevent J. Earl Martin and his crew, namely, George Absher, Jefferson Lawson, Irian Hendrix, Floyd Rouse, and Leroy Rouse, from lawfully pursuing his and their labor, occupation and employment and from pursuing his and their daily avocation, which was skidding, moving, and erecting oil field derricks, and the avocation of oil field rig builders, and the said defendant and other persons herein named and divers other persons whose names are unknown, being so unlawfully assembled for said purpose, they, the said defendant and the persons herein named and divers other persons whose names are unknown, did then and there engage in said riot and did then and there, act together in said unlawful purpose and did then and there unlawfully, with hatchets, metal wrenches, clubs, and wooden mattock handles, attack and by loud and vociferous cursing, swearing, and by threatening gestures, and rudely displaying weapons, and by threatening to do serious bodily injury and to kill, did terrify and intimidate the said J. Earl Martin, George Absher, Jefferson Lawson, Irian Hendrix, Floyd Rouse, and Leroy Rouse, and did make an assault upon and beat, bruise, and wound the said J. Earl Martin, George Absher, Jefferson Láwson, Irian Hendrix, Floyd Rouse and Leroy Rouse, and thereby said defendant and said other persons herein named and said divers persons whose names are unknown, did unlawfully and riotously interfere with, intimidate, and prevent the said J. Earl Martin, George Absher, Jefferson Lawson, Ir-ian Hendrix, Floyd Rouse, and Leroy Rouse, from pursuing their labor, occupation, and employment as aforesaid and from pursuing their daily avocation aforesaid, against the peace and dignity of the State.”

Appellant contends that while it is charged in the complaint and information that he and others unlawfully assembled with the purpose and intent to aid each other by violence and by the use of hatchets, wrenches, etc., to interfere with, intimidate and prevent J. Earl Martin and others from lawfully pursuing his and their labor, occupation and employment and from pursuing his and their daily avocation, which was skidding, moving and erecting oil field derricks, etc., yet it does not definitely charge that J. Earl Martin and others were actually so engaged at the time of the alleged, riot, and cites us to the case of Bradford v. State, 40 Tex.Cr.R. 632, 51 S.W. 379. We are of the opinion that the averment in the information is not subject to any other reasonable construction than that Martin and others were employed and were pursuing their * daily vocation at the time of the riot. However, in our opinion, it was not necessary that Martin and others should have been actually engaged in skidding or building oil field derricks. If such was their vocation and they were prevented by the appellant and his associates from pursuing the same or from being so employed, it would be of-nó moment whether they were at the time actually performing the physical act in line with their daily vocation or not. Martin and others may not have performed any work at the very time in question or for some time prior thereto, yet if they were contemplating the performance of such physical labor or were returning to their homes from such labor and appellant and his companions, by the means charged, intimidated them from returning to the area and engaging therein, it would be a violation of the law. A man’s daily vocation is the means by which he makes a livelihood and supports his family, and any set of men who prevent another from pursuing his daily vocation are interfering with a legal right, which makes the interference unlawful.

The averments in the present instance are not like those in the case of Bradford v. State, supra, cited by appellant in support of his contention. In the Bradford case, the appellant was charged with illegally depriving L. H. Ernst of the right to employ and retain in his employ Mexicans as laborers upon his farm and to disturb him, the said Ernst, in the enjoyment of said right to employ and retain in his employ Mexicans as laborers on his farm. In that case there was no direct and specific averment that Ernst operated a farm and was engaged in farming or that he had employed Mexican laborers or intended to employ Mexican laborers upon his farm, which was a necessary element constituting the offense. In the present case, every essential element constituting the offense is charged. The information follows the form laid down by Mr. Branch in his Ann.Tex.P.C. p. 539, and Willson’s Tex.Crim. Forms, 4th Ed., p. 130, form 233e. In support of what we have said here, we refer to the case of Reynolds v. State, 82 Tex.Cr.R. 505, 199 S.W. 1092, and overrule the appellant’s contention.

Appellant next complains that the court erred in overruling what he terms an application for a severance in which he states that he did not request a severance for himself but asked ■ that his motion, which was incorporated in the motion for a severance with J. C. Willis, be granted; that the order of trial be adopted by the court as set out in the motion for a severance; that J. L. Reece was the first man charged with the riot in the complaint against J. C. Willis. He also asked that the court adopt the order of procedure in that case. The motion claimed to be an application for a severance is not sworn to and does not comply with Art. 651, C.C.P. Furthermore, it will be noted that nowhere in said application is it shown what the order of procedure was in the case of J. C. Willis, nor that it was agreed to by all of the defendants. In the absence of such 'a showing we are unable to discover any error in the ruling of the court. It may be true that J. L. Reese was the first man charged in the complaint with the riot, but it may also be true that for some good reason he was not ready for trial; or it may be that he had asked that appellant be first tried. Hence, it is obvious that the bill of exception complaining of the ruling of the court is wholly deficient under the well-established rule of this court to the effect that a bill of exception must be so full and complete that, in and of itself, it reflects reversible error. See Branch’s Ann.Tex.P.C. p. 131, § 207, and cases there cited.

Appellant’s next complaint is that the court erred in declining to give the following special requested instruction to the jury: “You are charged that the defendant, Johnnie Smith, on the first day of March, 1940, had the legal right to go out upon the Wichita-Archer county road, and had the right to peacefully assemble, with others, for the purpose of discussing with J. Earl Martin, and his crew, the working conditions existing in his area, pertaining to their occupation, and unless you find and believe from the evidence, beyond a reasonable doubt, that the defendant, Johnnie Ralph, with other persons, assembled for some other purpose, you will give the defendant the benefit of the doubt and acquit him.”

The record shows that appellant addressed quite a number of objections to the court’s charge and requested some thirty-six special charges, many of which were on the same subject but couched in different language. These charges were all presented to the court, who selected therefrom the following, which were submitted to the jury:

“You are charged at the request of the defendant, that the defendant, Johnnie Ralph, and others, had the legal right, and authority, to assemble on the Archer County road for the purpose of discussing with J. Earl Martin, peacefully, the working conditions existing in this area, and if they did assemble, and at such time, an attack was made on one Sam Smith, in the presence of Johnnie Ralph, he would have the right to use all of the means necessary to defend the said Sam Smith, and if he used no more means than was necessary under the existing circumstances, viewed from his standpoint at the time, he would not be guilty of any offense, and if you have a reasonable doubt of this fact, you will give the defendant the benefit of the doubt and acquit him, and so say so by your verdict.”
“You are instructed as a part of the law in this case, that if you believe, or if you have a reasonable doubt thereof, that this defendant, with other persons did not unlawfully assemble themselves together, for the purpose and with the intent to prevent J. Earl Martin and his crew from pursuing his or their labor, occupation or employment, or intimidate him or his crew, from following his or their daily avocation, then you will find this defendant not guilty.”
“If you believe from the evidence, or have a reasonable doubt thereof, that this defendant, Johnnie Ralph, and any other person with this defendant, if any, had not committed or attempted to commit any illegal act, at the time J. Earl Martin’s car was parked on the Wichita Falls and Archer City Highway and that an illegal attack was made upon the person of this defendant or any person with this defendant, that he, the defendant, had the right under the law to defend himself or any other person with him, from any unlawful attack, and if you believe that this defendant and other persons with him, if any, so acted ’ you will acquit the defendant and say by your verdict not guilty.”

[6 It seems to be the prevailing rule in this state that a special requested charge may be refused where the same subject is substantially covered in the court’s main charge or is embraced in another special requested instruction which is given. To give a number of instructions embracing substantially the same subject would possibly lend undue emphasis to the matter covered thereby. See Tucker v. State, 67 Tex.Cr.R. 510, 150 S.W. 190; Seymour v. State, 93 Tex.Cr.R. 186, 245 S.W. 913; Mays v. State, 58 Tex.Cr.R. 651, 127 S.W. 546.

Where the defendant in a misdemeanor case, requests a special instruction on any phase of the case, he is required to present a correct charge covering the same and not by piece meal.

Appellant also complains of the court’s action in declining to give his 'special requested instruction on the law of circumstantial evidence. It is well established in this state that a charge on circumstantial evidence is not required where the main fact is proved by direct testimony and the question of the defendant’s intent only is to be inferred from the circumstances. See Tex.Jur. 1939 Supplement, p. 584, § 102. In the instant case, the main fact was proven by direct evidence. . .

By bills of exception Nos. 3, 4, 5, 6 and 7, appellant complains of the action of the trial court in excluding certain testimony sought to be elicited from the witnesses Jackson, Hoganmiller, Henry, Reynolds and Smith as to their reasons for going out to the lease to talk to Mr. Martin. Appellant contends that each- of the witnesses mentioned would have testified that they knew Martin while he was working a crew of rig builders at Tyler, Texas; that he carried no workmen’s compensation insurance; that one of his workmen fell from a derrick and was killed, leaving a widow and child without compensation or damages. The record reflects that quite a number of witnesses had testified to the same facts as those which were sought to be established by the excluded testimony. In our opinion, the bills fail to reflect reversible error because the excluded testimony would have been but a repetition of that given by a number of other witnesses who, on the morning in question, had gone with the defendant to the lease where Mr. Martin was at work with his crew. We are of the opinion that the court had a right to place a reasonable limitation on the number of witnesses testifying to the same fact. Moreover, the record shows that the witnesses mentioned were all permitted to testify as to their object and purpose in going to the lease. Under the state of facts reflected by the record, we fail to see that any reversible error was committed by the trial court.

Appellant also challenges the sufficiency of the evidence to sustain his conviction. The record shows that on the day in question the appellant, accompanied by some twenty or twenty-five men, who belonged to an oil field workers’ union, went to the place where J. Earl Martin and his crew were at work skidding an oil derrick ; that they talked to him as to whether or not he and his crew belonged to the union; that during the discussion and without permission, they took the switch key out of the truck which was used by Martin and his crew in the performance of their work; that they went back to town but • later returned, stopping out in the road a short distance from the premises where Martin and his crew were at work, waited for them to come out, and when they did so, Martin and his companions were attacked by the appellant and his associates, who used hatches, wrenches, pick handles, etc., thereby inflicting serious injuries upon Martin and some of his crew.

We deem the evidence sufficient to sustain the conviction.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After carefully re-examining the record in the light of the motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

PER CURIAM.

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


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    JAMISON v. STATE.
    No. 21233.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1941.
    Rehearing Denied March 19, 1941.

      J. R. Bogard, of San Augustine, John R. Anderson, of Center, and R. A; McAlister and S. M. Adams, both of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

• The trial was had in Nacogdoches County on a change 'of venue from San Augustine County.

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

The homicide occurred on the 10th day of April, 1939, near' the home of the appellant. Appellant and deceased were farmers and were engaged in cultivating certain tracts of land on the Blount farm in San Augustine County. Shortly before the homicide they had a dispute relative to a fence deceased had constructed. It also appears that, over appellant’s objection, deceased had placed some barrels of gasoline on or near the premises of appellant. According to appellant’s version, deceased had interfered with appellant’s right to use a pasture on the Blount farm, which was part of the Blount premises. Again, a few days before the killing deceased had threatened to strike him with a mattock. It was also appellant’s version that deceased had no right to use a private road near appellant’s house.

It was the theory of the state, given support in the testimony, that appellant had bought a shotgun shell loaded with buckshot and had prepared himself to kill deceased when a convenient opportunity arose. In going to the land he was cultivating it was the habit of deceased to travel a road which passed near the appellant’s house. In entering his leased premises when traveling this road, deceased went through a gate or gap which he had to open and close. On the occasion of the homicide he had driven through this gate in his automobile, had left his car and closed the gate and had started to return to his car when appellant appeared on his front porch with a shotgun and commanded him to stop. According to appellant’s version, deceased refused to stop, and went toward his car. He testified that deceased customarily carried a rifle in his car, and he believed it was the purpose of the deceased to procure the rifle and kill him, and so believing he shot the deceased as he reached the rear of his car. It was the state’s further theory, given support in the testimony, that at the time appellant killed deceased deceased was making no demonstration and that appellant’s act in shooting him was unwarranted and unprovoked. A witness for the state, who lived in view of the home of the appellant, testified that she saw the appellant and heard the discharge of the shotgun. She ran immediately to the scene 'of the homicide, and found that deceased was dead. According to her version, he was unarmed. The wife of the appellant, who witnessed the homicide, testified that the state’s witness to whom we have referred went to the car of the deceased and took something from it. Several witnesses for the state, who reached the scene of the killing before the body of deceased had been removed, testified that deceased was not armed and that there were no weapons in his car. The wife of deceased testified that deceased’s gun was in their home at the time of the homicide. It appears that the buckshot fired from the appellant’s gun entered the left side of the deceased. At this juncture we quote from appellant’s testimony as follows:

“At the time I got this buckshot I had heretofore been buying buckshot and keeping them for the hawks. That was the only one I had. The first time I saw Mr. Burnaman he was stopping his car. He was opening the gate while I was getting my gun. I got my gun to go out there and talk to him. When I went out on the gallery T stood about like to step out off the front door step. I believe there are six posts on that gallery and I was standing between the two posts Ipading out into the yard. As to how far it is from my door that I came out of that room until I reached the porch, it was about eight or ten feet; the gallery is eight feet, and that would make about sixteen feet that I traveled. When I got out there and looked towards Mr. Burnaman he was going towards his car, and I asked him to stop and he kept going to the car, and Mr. Burnaman was looking over his shoulder at me, kind of with his head turned; he never did stop. When I told him to stop the first time and that was his car, he looked at me this way. I threw my gun on him and the second time asked him to stop he kept going to his car. About the time I shot he was going on the other side of his car, and I believed that George Burnaman was going after his gun; I asked him to stop four times. I went out there to talk to him. That was since the racket about the fence. Mr. Burnaman did not say or do anything to me; he didn’t say a word to me. When I told him to stop the first time he kept going. I had my gun in shooting position then; no, not at the first time, but at the second time. When I asked him to stop the first time I intended to talk to him, to get at that trouble and stop it out there. When I shot him I did not have any other shells with me at that time. When I went and got my gun I didn’t have any other shells there; the shells were in the dresser drawer. I did not take them with me. The gun was loaded with this buckshot shell that I had when I went out there. If Mr. Burnaman had stopped I would have talked to him. When I shot Mr. Burnaman fell; he did not say anything. All I heard out of him, I heard him groan; then I turned around and laid my gun down and told my wife I was going to town. I went out the front gate.”

Again, we quote from the testimony of the appellant as follows: “I saw Mr. Burnaman as he closed the gate. He seen me too. When he took the first step from the gate to get back in his car I had not at that moment leveled my gun on him. I don’t know whether or not I am positive I didn’t. When I walked out of the house I had my gun in my hand and 1 asked him to stop the first time and he looked at me, and I leveled my gun on him the second time I asked him to stop. I testified on the other trial of this case — voluntarily sat and testified in my own behalf and said that when Mr. Burnaman took his first step, leaving the gate to go back toward his car that I leveled my shotgun on him and held it in a shooting position.”

We quote further from the testimony of the appellant: “I did not see him (deceased) do anything with cither hand to cause me to believe he was reaching for a pistol in his shirt or in his pocket. It is true that I did not kill him because of any demonstration he made reaching for a gun as he walked back to his car. There was nothing he did as he walked back to the car to cause me to shoot him. I didn’t shoot him because he wouldn’t stop. If he had stopped I would not have stopped him just the same. As to whether I testified before that I shot him because he wouldn’t stop, I will state that I shot him to stop him at the car. If he had stopped and talked to me I wouldn’t have shot him. Then because he refused to stop and engage in conversation with me was the reason I shot him.”

Appellant also testified in effect that his purpose in asking deceased to stop was to talk to him about their misunderstandings. He thought deceased might attack him and carried his shotgun for protection.

Appellant introduced his wife as a witness, who gave testimony substantially corroborating his version of the killing.

We have not undertaken to set out in detail all of the testimony adduced upon the trial as the statement we have made is deemed sufficient to elucidate the questions hereinafter discussed.

The court gave an instruction covering the law of self-defense, and also charged on provoking the difficulty. It is appellant’s contention, as shown in one of his exceptions to the charge of the court and in his brief, that the evidence failed to raise the issue of provoking the difficulty. We doubt if the issue of self-defense was in the case. However, in view of the court’s instruction on the subject, we have given careful consideration to the position of appellant that the charge on provoking the difficulty was an unwarranted limitation of his right to defend himself. We have reached the conclusion that Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806, and Moore v. State, 96 Tex.Cr.R. 493, 258 S.W. 476, are practically direct authority against the contention of the appellant. In the Norwood case it appears that a quarrel had ensued between the accused and the deceased on a ranch several hours prior to the homicide relative to some goats. Several hours after this difficulty Norwood killed the deceased under circumstances which are summarized in the opinion as follows [135 Tex.Cr.R. 406, 120 S.W.2d 808]:

“We find ourselves unable to agree with him that the issue of provoking the difficulty was not raised by the testimony. There was an unfriendly state of feeling existing between the parties. This seems to have been intensified by what occurred at the ranch a few hours prior to the commission of the homicide. At the time that deceased and his uncle, Orville Word, parked their car in front of the post office in the town of Burnet, appellant was standing on the sidewalk a short distance to the east of where they were parked. His car, with a rifle therein, was parked still further east and down the street. He immediately went to his car and drove it up behind the car of the deceased so that they could not back out. Appellant then got out of his car on the opposite side, reached for his gun, and asked Orville to come to him; that he wanted to see him. Deceased, who saw that his car was blocked and saw appellant’s movements, his attitude, and knowing the state of feeling existing, immediately warned his uncle not to comply with appellant’s request, because appellant had a gun and would kill him. It seems from the foregoing statement that the deceased had seen appellant with the gun, noticed his movements, and no doubt made an effort to get his gun to protect himself and his uncle from what appeared to.be an attack upon them by appellant.”

We quote from the Moore case, supra, as follows:

“Appellant and deceased resided upon neighboring farms. They had a quarrel about the location of appellant’s fence along the community road which passed his premises. This took place a few weeks before the homicide. There was evidence that the deceased had made hostile declarations and threats to do the appellant violence. Some of these, according to appellant’s testimony, were communicated to him, and he also gave evidence of various specific acts of violence upon the part of the deceased against other persons. There were no eyewitnesses save the appellant. According to his testimony, he put his pistol in a scabbard on his person with the view of seeing the deceased some time during the day and discussing with him their differences. Appellant went upon his farm and was doing some work, when he observed the deceased approaching the community road, riding in his wagon. What then happened is thus described by the appellant:
“ ‘When I saw him, I laid my fork down and started to the road in the direction of the post, and he was driving in that direction. I was on my own premises all this, time. I went to the corner. He was sitting in a hack on a very small box and driving in an easterly direction. When I got to the post, I asked him why he was. telling those damned lies about this road on me, and he said, “I haven’t done it,” and I told him he had, and started to give an explanation, and he turned to me and says, “You are a God damned liar,” and dropped his lines with his right hand and throwed his hand behind him. I was standing with my hand on the post talking with him, and as he did that I pulled my sixshooter up, shooting, and fired three shots.’1
“We think the evidence justified the-learned trial judge in instructing upon the law of provoking the difficulty as a limitation upon the law of self-defense. Appellant began the conversation with the deceased by the use of language which the-jury might have deemed to be reasonably-calculated to provoke the deceased and. bring on a conflict; and it cannot be said, as a matter of law, that the language and. conduct of the appellant was not with such an intent.”

Having charged on provoking the difficulty, the court instructed the jury as to appellant’s right to arm himself and talk to the deceased relative to the difficulties and misunderstandings they had had. Appellant excepted to the charge on the ground that it was too restrictive. The court charged the jury, in substance, that appellant had a right to seek a peaceable interview with the deceased and to arm himself if he had reasonable grounds for belief that the deceased was armed or had .available a gun which he might use in killing appellant or doing him serious bodily harm, as viewed from 'appellant’s standpoint at the time. In short, the court •charged the jury that appellant had the right to arm himself for protection, and that his action in doing so did not forfeit •or impair his right of self-defense. Under .appellant’s testimony, we are unable to reach the conclusion that the exception to the charge was well taken. Appellant said, in effect, that he believed deceased carried a gun in his car and that he (appellant) armed himself with a shotgun for the purpose of protecting himself in the event •deceased attacked him. Whether a charge •of the nature in question is too restrictive must depend upon the circumstances of the particular case. Banks v. State, 131 Tex.Cr.R. 196, 97 S.W.2d 219, 222. In the Banks case the following charge was held not to be too restrictive under the facts there shown:

“You are further instructed as a part of the law as set forth in the next two preceding paragraphs of this charge, that the defendant had the right to go to the house of the deceased on the occasion of the homicide for the purpose of seeking an amicable adjustment of their differences relative to the Mose Miller land, or the crops grown thereon for that year; and, if he feared an attack upon him by deceased, he had the right to arm himself before going to deceased’s home, for the purpose of protecting himself from any such anticipated attack; and his right of self-defense would not in any manner be cut off or abridged for thus acting.”

In Anderson v. State, 86 Tex.Cr.R. 207, 217 S.W. 390, 391, the following charge was held not to be too restrictive under the facts of the case: “You are charged that the defendant had the right, together with his father, F. W. Anderson, to seek the deceased, or to seek Will Smith, or either of them, for the purpose of having an interview with them in regard to any difference that might have arisen between them as to a division of the feed crop raised by Otto Smith on the farm of F. W. Anderson in the year 1918, and also had the right to arm himself against any attacks the deceased, or Will Smith, or Tom Smith might make upon him, or might make upon F. W. Anderson, had he reasonably feared they, or either of them, would make upon him, or F. W. Anderson, while doing so.”

Appellant filed a second motion for continuance based in part on the absence of Margaret Tidwell. It was averred in the motion that the witness would testify that Mrs. Jones, a witness for the state, had told her that she went to the car of the deceased shortly after he had been killed and took a gun from said car. This testimony was impeaching in nature, as Mrs. Jones had testified on the trial that she took no gun from deceased’s car. We quote from section 324, Branch’s Ann. Texas P.C., as follows: “Continuances will rarely be granted to obtain impeaching testimony.” The state produced Margaret Tidwell upon the hearing of the motion for new trial. She testified that Mrs. Jones had never told her that she took a gun from the automobile of the deceased. In short, she said that Mrs. Jones had never made any kind or character of statement to her or in her presence with reference to the homicide. It is manifest that the court was warranted, not only in declining to continue the case, but also in overruling the motion for new trial insofar as it was based on the refusal of the application for continuance.

If we understand appellant’s exception No. 4 to the charge of the court, it is based upon the failure of the charge to give instructions to the jury covering the provisions of Article 1257a, Vernon’s Ann. P.C. of Texas, -which reads as follows: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. Provided, however, that in all convictions under this Act and where the punishment assessed by the Jury does not exceed five years, the Defendant shall have the benefits of the suspended sentence act.”

This article provides a statutory rule of evidence, and should not be given in charge. Hill v. State, 130 Tex.Cr.R. 585, 95 S.W.2d 106. In Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.2d 119, 122, Judge Lattimore, speaking for the court, used language as follows: “Appellant’s bill of éxception No. 4 sets out that the court’s charge was excepted to for failing to embrace the provisions of article 1257a of the new law of murder (Gen. & Sp. Acts 1927, c. 274), and for not applying said article to the defensive issues presented by the evidence on behalf of the defendant and his witnesses. Article 1257a seems to lay down only a rule as to what evidence may be introduced on the trial of a homicide case, and we are not informed by such exception how such article could be embodied in the charge either for or against the accused.”

It is the appellant’s contention, as evidenced by one of his exceptions to the charge of the court, that he was entitled to an instruction to the jury covering his right to defend his wife, his children, and his property. We find no testimony in the record calling for such an instruction. It was appellant’s position, as shown in his testimony, that he believed deceased was going to his car for a gun when he shot deceased. In short, he acted upon the belief that deceased was preparing to kill him when he (appellant) fired the fatal shot. There is no suggestion in the testimony that appellant acted in defense of his wife, his children and his property.

Appellant excepted to the charge of the court because of its failure to embrace an instruction covering Article 1223, P.C., which provides in part that when the homicide takes place to prevent murder, and the weapon or means used by the party attempting or committing such murder would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury. It is well settled that the provisions of the article in question should be covered in a proper instruction when called for by the evidence. We quote from Branch’s Ann.Texas P.C., Section 1918 as follows:

“Where deceased is about to attack or is advancing on defendant with a deadly weapon, the law presumes that deceased intends to kill and murder defendant, and where deceased is so armed, and his purpose is in any way doubtful, it is reversible error to fail to charge the jury that if deceased was about to advance ór was advancing on defendant with a deadly weapon that the .law presumes that he intended to kill defendant or do him some serious bodily injury.”

Many authorities are cited in support of the text, among them being Best v. State, 61 Tex.Cr.R. 551, 135 S.W. 581, 582. It is also the holding of the court that there is “no occasion to charge upon the presumption from the use of a deadly weapon by deceased if there is no evidence that deceased used a weapon in the assault made by him.” Branch’s Ann. Texas P.C., § 1918; Bryant v. State, Tex.Cr.App., 47 S.W. 373, 374; Spencer v. State, 59 Tex.Cr.R. 217, 128 S.W. 118, 121. In the same section Mr. Branch makes the following statement: “Where the defense is based only, on the theory of -apparent danger and there is no evidence that deceased was armed, the court should not charge on the presumption from the use of a weapon by deceased. Andrews v. State [Tex.Cr.App.], 76 S.W. [918], 919.” Looking to the testimony, it is observed that witnesses for the state who came to the scene of the homicide shortly after deceased had been killed affirmed that there was no gun in the car of the deceased and that the only weapon on his person was a pocket knife. Appellant made no claim in his testimony that deceased had any weapon in his possession at the time he -shot him. In short it was appellant’s version that deceased had no gun or other weapon in his hand at the time the fatal shot was fired. However, appellant testified that the deceased customarily carried a rifle in his car, and that when deceased went toward his car after being commanded to stop he believed deceased was seeking his gun. Appellant’s wife testified that Mrs. Jones, a witness for the state, was at the scene of the homicide shortly after it occurred, and that she removed something from the car of the deceased. Whatever Mrs. Jones took from the car- — -and she denied that she took anything: — was not shown in the testimony of the wife of the appellant to be a gun or any other weapon. In short, there was no testimony showing that the deceased was armed. In Starland v. State, 116 Tex.Cr.R. 423, 32 S.W.2d 657, 658, this court said:

“Appellant objected to the charge of the court on the ground that it did not contain an instruction on the presumption arising from the use of a deadly weapon, by deceased, under article 1223, P.C. The facts did not call for the charge. Appellant does not claim to have seen a pistol or any other weapon in the possession of deceased. He only said that he thought deceased was going to attack him when he placed his hand in his pocket. Appellant’s own witnesses, as well as the witnesses for the state, testified that deceased was unarmed. Lawrence v. State, 112 Tex.Cr.R. 659, 18 S.W.2d 181; Davis v. State, 107 Tex.Cr.R. 357, 296 S.W. 596; Yancy v. State, 108 Tex.Cr.R. 39, 298 S.W. 908.”

Under the circumstances reflected by the record, the court was not in error in failing to amend the charge in response to the exception in question.

Appellant introduced witnesses who gave testimony to the effect that appellant’s general reputation as a peaceable and law-abiding citizen was good. There appears to have been no contest on this issue. The charge of the court discloses that appellant’s application for a suspended sentence was properly submitted to the jury. No reference was made in the charge to the proof of the good reputation of the appellant in the respect mentioned. Appellant excepted to the charge, as follows: “Defendant objects and excepts to the entire charge because the Court fails to instruct the jury that they may take into consideration the testimony of the witnesses with reference to their reputation of the defendant as to being a peaceable, law-abiding citizen, not only on the question of suspended sentence, but on the question of his probable guilt.”

In support of his contention that the court fell into error in failing to amend the charge in response to the exception, appellant cites Johnson v. State, 138 Tex.Cr.R. 188, 135 S.W.2d 485, 487, in which this court said: “The proposition that a defendant in the trial of a criminal case may show his good general reputation in the community in which he lives is not one open for discussion. It is a matter properly to be considered by a jury, either in determining the guilt of the defendant or in fixing the penalty appropriate to his case.” The question before the court in

Johnson’s case was not concerned with the refusal of the trial court to single out and charge upon the effect of testimony relative to the good general reputation of the accused as a peaceable and law-abiding citizen, but involved only the action of the trial court in refusing to permit a witness to testify that the reputation of the accused in the respect mentioned was .good. We held such testimony admissible, and reached the conclusion that the error in excluding it was reversible. It is thus seen that the announcement in the Johnson case is not applicable to the present situation. While the accused may introduce evidence touching his good general reputation in reference to the nature of the cnarge against him, a charge would be upon the weight of evidence which instructed the jury as to the consideration or weight to be given such evidence. Lockhart v. State, 3 Tex.App. 567. In Pharr v. State, 9 Tex.App. 129, the court said: “It was not incumbent on the judge to give a special instruction on .good character. The law permits one accused of crime to put his previous good character before the jury for their consideration. All the court is required to do is to permit the evidence to go to the jury, to be by them considered in connection with the other testimony in the case, in order to determine from the whole evidence the guilt or innocence of the accused.” The exception was properly overruled. 24 Tex.Jur., 571; McDaniel v. State, 63 Tex.Cr.R. 359, 139 S.W. 1154.

A careful examination of all of appellant’s contentions leads us to the conclusion that reversible error is not presented.

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.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant’s motion for rehearing in 'this case attacks the opinion of the court as being contrary to law and not borne out by the record. We have carefully examined his several points on the subject and, believing that the record sustains the original opinion, it is our conclusion that it is now the law, since this opinion so decrees.

We have reconsidered all the questions raised in the motion for rehearing and it is our belief that the original opinion properly considers and sufficiently discusses each question which the motion for rehearing recalls. The opinion cites authorities and discusses them in sustaining the conclusion which was reached. It is observed that appellant has not undertaken to discuss these authorities or point out others to the contrary in his motion. A further discussion by this court does not appear to be called for and we refrain from doing so.

The motion for rehearing is overruled.